                    Case: 12-10209           Date Filed: 12/12/2012   Page: 1 of 7

                                                                         [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10209
                                        Non-Argument Calendar
                                      ________________________

                              D.C. Docket No. 1:11-cr-00084-KD-C-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                     Plaintiff-Appellee,

                                                    versus

DANIEL DWIGHT BROWN,

lllllllllllllllllllllllllllllllllllllll l                                 Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Alabama
                                  ________________________

                                            (December 12, 2012)

Before TJOFLAT, CARNES, and FAY, Circuit Judges.

PER CURIAM:
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      After a jury trial, Daniel Dwight Brown was convicted of three counts of

possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), one count

of possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1), one

count of possession with intent to distribute more than 500 grams of a mixture or

substance containing a detectable amount of methamphetamine in violation of 21

U.S.C. § 841(a)(1), and one count of possession of a firearm during a drug

trafficking offense in violation of 18 U.S.C. § 924(c). The district court sentenced

him to 188 months imprisonment for the methamphetamine distribution offense,

concurrent 120 month sentences on each of the § 922(g)(1) counts, and a

consecutive 60 month sentence on the § 924(c) count.

      Brown challenges his 188 month sentence for his methamphetamine

distribution conviction, contending that the district court erred by applying the

drug quantity finding made by the jury in a special verdict form instead of

determining the “net” drug quantity at sentencing. He argues that the special

verdict form should have included a statement of the required standard of proof for

finding the amount of drugs involved in the offense. He also argues that, in order

to determine correct drug quantity at sentencing, the district court should have

subtracted the weight of plastic containers and non-consumable lithium from the

methamphetamine mixture’s gross weight.

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                                             I.

       In a special verdict form the jury found that Brown “possessed with intent to

distribute a mixture and substance containing a detectable amount of

methamphetamine . . . weighing 500 grams or more.” Brown did not object to the

verdict form or the accompanying jury instructions in the district court. At

sentencing the district court relied on the drug weight determined by the jury to set

Brown’s base offense level.

       Because Brown challenges the special verdict form for the first time on

appeal, we review only for plain error. See United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir. 2005). We “may not correct an error the defendant failed to

raise in the district court unless there is: (1) error, (2) that is plain, and (3) that

affects substantial rights.” Id. (quotations marks omitted). If all three of those

conditions are met, we “may then exercise its discretion to notice a forfeited error,

but only if (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id.

       We have held that a district court may use a special verdict form for the jury

to find the amount of drugs involved in an offense. See United States v. Clay, 355

F.3d 1281, 1285 (11th Cir. 2004) (“We hold that there was no reversible error by

submitting the special verdict form to the jury to determine whether at least 50

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grams of cocaine were involved in the offense.”). We have never held that a

special verdict form must recite the standard of proof, and in the present case the

district court instructed the jury on only one standard of proof—proof beyond a

reasonable doubt. Brown has not shown that there was any error, much less plain

error, by not reiterating that standard of proof on the special verdict form.

                                          II.

       As for the district court’s determination of the amount of methamphetamine

for sentencing purposes, we review the court’s factual findings for clear error and

review de novo its interpretation and application of the sentencing guidelines.

United States v. Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012). “[T]he weight of

a controlled substance set forth in the [§ 2D1.1(c) drug quantity table] refers to the

entire weight of any mixture or substance containing a detectable amount of the

controlled substance.” U.S.S.G. § 2D1.1(c) n.(A). The jury found that weight to

be 500 grams or more. The district court relied on that finding and set Brown’s

base offense level at 32, which is the level assigned for possessing with the intent

to distribute at least 500 grams but less than 1.5 kilograms of methamphetamine.

Id. § 2D1.1(c)(4). The same base offense level applies for at least 50 grams but

less than 150 grams of “[m]ethamphetamine (actual).” Id. “Methamphetamine

(actual)” is “the weight of the controlled substance, itself, contained in the mixture

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or substance.” Id. § 2D1.1(c)(4) n.(A).

       At trial the government called as a witness Alan Oshea, an officer in the

narcotics division of the Mobile County Sheriff’s Office who assisted in searching

the shed in the backyard of Brown’s grandmother’s house where the

methamphetamine cooking materials and equipment were discovered. Through

Oshea, the government introduced into evidence two photographs, each of which

showed a methamphetamine mixture in a plastic container on scales establishing a

combined weight of 770 grams. Despite that evidence and the jury’s findings

based on it, Brown argues that the district court had an independent duty at

sentencing to set his base offense level by calculating the “net” weight of that

mixture. According to Brown, that calculation should have been made by

subtracting the weight of “clearly visible non-consumable pieces of lithium from

the mixture’s gross weight.”1 Br. of Appellant at 18–19 (footnotes omitted). In

       1
         Brown also argues in his brief to this Court that calculation of the net weight of the
methamphetamine mixture requires subtracting the weight of the plastic containers it was placed
in for weighing from the 770 grams total weight. In the district court, however, Brown did not
mention the weight of the containers. He did not make an argument based on the weight of the
containers in his objections to the presentence investigation report or in his arguments to the
court at either of his two sentence hearings. Brown’s argument was that he should not be held
accountable for more than 500 grams of methamphetamine because the mixture was not pure,
consumable methamphetamine but instead contained “sludge” or “blob.” At the first sentence
hearing, the district court stated that “my understanding of your objection is the 770 grams of
weight was sludge.” Doc. 65 at 15. Brown responded, “Blob.” Id. At the second sentence
hearing, Brown again argued that he should not “be held accountable for this sludge that was
found.” Doc. 66 at 6. The district court rejected that argument and relied on the jury’s finding
that Brown was accountable for more than 500 grams of methamphetamine. Because Brown

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support of his position, Brown relies on this application note to U.S.S.G. § 2.D1.1:

       Mixture or substance does not include materials that must be
       separated from the controlled substance before the controlled
       substance can be used. Examples of such materials include the
       fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a
       cocaine/beeswax statue, and waste water from an illicit laboratory
       used to manufacture a controlled substance. If such material cannot
       readily be separated from the mixture or substance that appropriately
       is counted in the Drug Quantity Table, the court may use any
       reasonable method to approximate the weight of the mixture or
       substance to be counted.

U.S.S.G. § 2D1.1(c)(4) cmt. n.1.

       The notes to the § 2D1.1(c) drug quantity table, however, provide more

specific guidance to a sentencing court: “In the case of a mixture or substance

containing . . . methamphetamine, use the offense level determined by the entire

weight of the mixture or substance, or the offense level determined by the weight

of the . . . methamphetamine (actual), whichever is greater.” Id. § 2D1.1(c)(4)

n.(B) (emphasis added). Even if the weight of the “non-consumable lithium” had

raises an argument about the weight of the containers for the first time on appeal, we review only
for plain error. See Rodriguez, 398 F.3d at 1298. As we have already mentioned, to establish
plain error a defendant must show: (1) error, (2) that is plain, and (3) that affects substantial
rights. Id.

        Brown has not shown how much the plastic containers weigh. Without any showing
about the weight of the containers, there is no way to know what the weight of the
methamphetamine mixture might be if the weight of the containers were subtracted from the total
weight of 770 grams. As a result, there is no way to know whether subtracting the weight of the
containers would result in an amount of methamphetamine mixture keyed to a lower base offense
level than the one the district court applied. Thus, even assuming an error occurred, Brown has
failed to show that it affects his substantial rights.

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been separated from the methamphetamine mixture to determine the “actual”

weight of the methamphetamine, and even if that amount had been keyed to a

lower base offense level in the § 2D1.1(c) drug quantity table, the district court

would have been bound to apply the higher offense level “determined by the entire

weight of the mixture or substance” because that is the specific rule for

methamphetamine. Id. § 2D1.1(c)(4) n.(B). If there was any error in sentencing

Brown based on the jury’s finding that he possessed with the intent to distribute a

mixture and substance containing a detectable amount of methamphetamine

weighing 500 grams or more, it was harmless. See United States v. Sarras, 575

F.3d 1191, 1220 n.39 (11th Cir. 2009).

      AFFIRMED.




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