                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          May 30, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

 v.                                                        No. 04-6066
                                                       (W . D. Oklahoma)
 C HRISTO PH ER LEE WA R D ,                         (D.Ct. No. 03-CR-92-R)

          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before O’BRIEN, HOL LOW A Y, and TYM KOVICH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Christopher W ard appeals from his conviction after a jury trial for

attempting to manufacture methamphetamine in violation of 21 U.S.C. §§




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
841(a)(1), 846. He also challenges his 327 month sentence. Exercising

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm W ard’s

conviction but remand to the district court with directions to vacate its restitution

order. W ard’s sentence is affirmed in all other respects.

                                   I. Background

      W e provide a brief background of the facts; other relevant facts will be

provided as needed in our discussion of the issues.

      Near midnight on January 17, 2003, a camper trailer belonging to the

mother of co-defendant Christy Tiger caught fire and burned to the ground. The

trailer was sixteen feet long and approximately eight feet wide and was located on

Indian land in N orman, Oklahoma. At the time of the fire, four people were

inside the trailer: W ard, Tiger, Jennifer Shultz (W ard’s girlfriend) and sixteen-

year-old Daniel Long. All four individuals were injured and transported to the

hospital; Shultz and Long died.

      Investigators discovered a number of items at the scene associated with the

manufacture of methamphetamine, including acids/caustic acids, camping fuel,

lithium batteries, a two-burner camping stove, a substance believed to be rock

salt, a five-gallon propane tank leaking anhydrous ammonia, and a red rubber

hose with brass fittings on each end which were blue in color, indicating the

presence of anhydrous ammonia. On M ay 8, 2003, based on the belief that the

fire started as a result a methamphetamine lab, the government indicted W ard and

                                          -2-
Tiger with attempting to manufacture methamphetamine resulting in the death of

two individuals in violation of 21 U.S.C. §§ 841(a)(1), 846 and penalty provision

21 U.S.C. § 841(b)(1)(C). Tiger was also indicted for opening and maintaining a

place for the purpose of manufacturing methamphetamine in violation of 21

U.S.C. § 856(a)(1). Eventually, the government filed a superseding indictment

against W ard and a superseding information against Tiger. The superseding

indictment charged W ard with the second degree murder of Shultz, an Indian, in

violation of 18 U.S.C. §§ 1111(a) and 1152 (Count 1), and the attempted

manufacture of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 846

(Count 2). The superseding information charged Tiger with accessory after the

fact in violation of 18 U.S.C. § 3.

      On August 26, 2003, Tiger pled guilty to the superseding information. She

was eventually sentenced to eighteen months imprisonment. Ward proceeded to

trial. The jury found him not guilty on Count 1 (second degree murder) but guilty

on Count 2 (attempted manufacture of methamphetamine). On February 19, 2004,

W ard was sentenced to 327 months imprisonment and ordered to pay restitution in

the amount of $11,522.40 to Shultz’s parents. This appeal followed.

                                      II. Discussion

      W ard raises a number of issues surrounding his conviction and sentence.

Because of the number of issues raised, we divide our discussion--first addressing

the issues pertaining to his conviction and then addressing all sentencing issues.

                                           -3-
A. Conviction

      1. M otion to Suppress

      After the fire had been extinguished, various law enforcement agencies

were called to the scene, including the Absentee Shawnee Tribal Police

Department, the City of Norman Police Department, the Cleveland County

Sheriff, and the Federal Bureau of Investigation (FBI). The City of N orman Fire

Department also assisted in the investigation. After these agencies had visited the

scene, a hazardous waste clean-up company under contract with the Drug

Enforcement Administration (DEA) disposed of the acids/caustic acids, the

propane tank, the two-burner stove, the red hose, the alleged rock salt, the

camping fuel containers and the lithium batteries. Before these items were

destroyed, they were photographed and documented.

      On M ay 30, 2003, W ard filed a motion to suppress based on the

government’s destruction of these items. An evidentiary hearing was held on

August 27, 2003. After the hearing, the district court denied the motion

concluding:

      [T]he evidence does not establish any wrongdoing by the officials who
      were present at the scene of the fire. The focus of the fire department
      personnel was not the gathering of evidence to support the commission
      of a crime; rather, their role was to investigate the origin of the fire.
      Because they are not law enforcement officers having a duty to obtain
      criminal evidence, the fact that they did not gather items and have them
      tested in a laboratory does not reflect bad faith or wrongdoing on their
      part. The evidence before the court established that the removal and
      ultimate destruction of items found at the scene was consistent with

                                         -4-
      DEA policy; the removal was performed by a com pany with which the
      DEA contracted for such purposes. There is no evidence that there was
      a departure from DEA policy. Even if the evidence could have
      potentially been useful to [W ard], he must show that the government
      acted in bad faith in destroying it. The evidence before the court does
      not support that conclusion.

(R. Doc. 125 at 8-9 (citation omitted).) Based on this ruling, the government was

allowed at trial to present evidence of the destroyed items through photographs

and the on-scene officers’ testimony.

      W ard contends the court erred in denying his motion to suppress, arguing

that all of the items represented to the jury as being associated with the

manufacturing of methamphetamine are common items, which serve legitimate

purposes not associated with illegal activity. He claims that had these items been

properly tested and/or preserved, he could have easily proved that none of them

had been used to manufacture methamphetamine and the fire was merely an

accident. Specifically, he states that had the government preserved the red rubber

hose, which the government claimed was used to transfer anhydrous ammonia

from the propane tank, he could have shown that the hose did not fit the tank. H e

also argues further testing could have been performed to determine the source of

the blue coloring on the hose’s brass fittings. As to the acids/caustic acids,

propane tank, camping fuel containers, and alleged rock salt, W ard contends

testing should have been performed to determine their contents and/or identity.

He claims such testing would have shown that none of these items w ere used in



                                          -5-
the production of methamphetamine. Additionally, W ard argues the battery

package should have been tested for fingerprints and had such testing been

conducted, it would have revealed W ard’s fingerprints were not present. Lastly,

W ard asserts that even though one of the fire investigators testified a laboratory

could have determined whether the two-burner camping stove was operational and

caused the fire, no such testing was performed.

      W ard also contests the court’s finding that the officers at the scene did not

act in bad faith. Specifically, he claims (1) the evidence was destroyed contrary

to DEA policy, (2) the fire investigators at the scene were acting as law

enforcement personnel and had a duty to collect and preserve evidence, (3) all of

the officers at the scene were highly trained in the recognition, preservation and

collection of evidence and immediately suspected criminal activity and (4) testing

facilities were available to the officers.

      W hen reviewing the denial of a motion to suppress, we accept the district

court’s factual findings unless clearly erroneous and consider the evidence in the

light most favorable to the government. United States v. Bennett, 329 F.3d 769,

773 (10th Cir. 2003). W e review for clear error the district court’s conclusion

that the government did not destroy potentially exculpatory evidence. United

States v. Bohl, 25 F.3d 904, 909 (10th Cir. 1994). “The inquiry into allegations of

prosecutorial bad faith presents a mixed question of fact and law in which the

quintessential factual question of intent predominates.” Id. (quotations omitted).

                                             -6-
      In California v. Trombetta, the Supreme Court held that “the D ue Process

Clause of the Fourteenth Amendment does not require [] law enforcement

agencies [to] preserve breath samples in order to introduce the results of

breath-analysis tests at trial.” 467 U.S. 479, 491 (1984). In doing so, it noted the

officers were “acting in good faith and in accord with their normal practice.” Id.

at 488 (quotations omitted). It further concluded that whatever duty the Due

Process Clause imposes on the government to preserve evidence, “that duty must

be limited to evidence that might be expected to play a significant role in the

suspect’s defense.” Id. Thus, the government violates due process under

Trombetta, when it destroys evidence that (1) “possess[es] an exculpatory value

that was apparent before [it] was destroyed” and (2) is “of such a nature that the

defendant would be unable to obtain comparable evidence by other reasonably

available means.” Id. at 489; see also Bohl, 25 F.3d at 909-10. In Arizona v.

Youngblood, the Court extended Trombetta, holding that where the government

fails to preserve “evidentiary material of which no more can be said than it could

have been subjected to tests, the results of which might have exonerated the

defendant,” no due process violation occurs unless the defendant demonstrates the

government acted in bad faith. 488 U.S. 51, 57 (1988); see also Bohl, 25 F.3d at

910. Therefore, under Youngblood, to demonstrate a due process violation based

on the government’s failure to preserve evidence, the defendant must show (1) the

evidence was “potentially useful” and (2) the government acted in bad faith.

                                         -7-
Youngblood, 488 U.S. at 58.

      W e start with Trombetta. In this case, the items destroyed had no

“apparent” exculpatory value at the time they were destroyed. Indeed, they all

appeared to be associated with the manufacture of methamphetamine. Thus, the

most W ard has shown is that if the items were available, further testing may have

produced exculpatory evidence. This is insufficient to warrant application of

Trombetta. See United States v. Parker, 72 F.3d 1444, 1451 (10th Cir. 1995)

(“The mere possibility that lost or destroyed evidence could have exculpated a

defendant is not sufficient to satisfy Trombetta’s requirement that the exculpatory

value be apparent to the police before destruction.”) (quotations omitted).

Turning to Youngblood, we conclude W ard has demonstrated that the destroyed

evidence was “potentially useful.” However, as the district court concluded, he

has failed to demonstrate bad faith by the officers at the scene.

      “Our inquiry into bad faith must necessarily turn on the [police officer’s]

knowledge of the exculpatory value of the evidence at the time it was lost or

destroyed.” Bohl, 25 F.3d at 911. W e may consider whether: (1) the government

was on notice that the defendant believed the evidence to be potentially

exculpatory; (2) the defendant’s assertion to the government that the evidence

possesses potential exculpatory value was merely conclusory or supported by

objective, independent evidence, (3) the government still had possession of or the

ability to control the disposition of the evidence at the time it received notice

                                          -8-
from the defendant of the evidence’s potential exculpatory value, (4) the

destroyed evidence was central to the government’s case, (5) the government

offers an innocent explanation for its failure to preserve the evidence, and (6) the

destruction of the evidence was in accordance with standard procedure and the

evidence was adequately documented prior to its destruction. Id. at 911-13.

      In this case, the items were destroyed immediately after the fire, before the

government was aware that W ard believed they were potentially exculpatory.

W hen it received notice, it no longer possessed the items. Thus, the first, second

and third factors weigh against a finding of bad faith, as the government did not

destroy the items know ing Ward believed them to be potentially exculpatory. As

to the fourth factor, the destroyed evidence was a crucial part of the government’s

case against W ard. However, it was not the only evidence of his guilt. The

government also presented the testimony of Tiger and M ichael Baird, who was in

prison with W ard. Both testified W ard admitted he was making

methamphetamine in the trailer. Therefore, the fourth factor is neutral.

      Turning to the fifth and sixth factors, the testimony at the evidentiary

hearing revealed that all of the officers at the scene were trained in recognizing,

collecting and preserving evidence. They suspected a methamphetamine lab.

Nevertheless, according to the testimony, the officers acted properly under the

circumstances and/or in accordance w ith their respective agencies’ policies.

      The fire department’s arson investigators, Kevin Leach and Fire M arshal

                                         -9-
Bobby Sirples, observed several items associated with the production of

methamphetamine. They did not seize these items or perform any tests. 1 Their

role w as to determine the cause of the fire, but when a methamphetamine lab is

suspected, the fire department defers to the police department for processing of

the scene. The tribal police department was initially in charge of the

investigation. It eventually turned the investigation over to the FBI and Norman

Police Department. The tribal police officers did not seize any evidence, with the

exception of a pair of coveralls which w ere located near W ard’s and Tiger’s

vehicles. FBI Agent M ark M aag did not observe or collect any of the destroyed

evidence because he arrived at the scene after the DEA’s clean-up company had

already performed its duties.

       Lastly, DEA Agent Robert Ryan testified about the DEA’s policy

concerning the handling of evidence at a suspected methamphetamine lab. A

company authorized to dispose of hazardous waste removes and destroys any

evidence deemed hazardous, toxic or dangerous; any non-hazardous items are

retained as non-drug evidence. Significantly, Agent Ryan testified that in

situations involving methamphetamine labs, especially where a fire has occurred,

almost all items associated with the lab are destroyed because they are considered

hazardous and contaminated.



       1
         The fire investigators did seize a catalytic heater because Tiger had told a fireman
that the fire started when she lit the heater.

                                            -10-
      Based on this testimony, the fifth and sixth factors are equivocal. The

agencies involved deferred to the DEA because a methamphetamine lab was

suspected. The items destroyed were associated with that lab. Pursuant to DEA

policy, they were deemed contaminated/hazardous and destroyed. Prior to their

destruction, the items were photographed and documented. In spite of the

destruction policy (and the deference of other investigatory agencies), bad faith

might be inferred. But that was not the finding of the district court, which is in

the best position to assess the evidence.

      The district court’s finding that the government did not act in bad faith is

not clearly erroneous and the denial of the motion to suppress w as proper.

      2. Vindictive Prosecution

      Depending on whether the defendant has a prior felony drug conviction, 21

U.S.C. § 841(b)(1)(C) provides for a term of imprisonment of either twenty or

thirty years for the manufacturing of any amount of methamphetamine. An

enhanced penalty also applies “if death or serious bodily injury results from the

use of such substance.” 21 U.S.C. § 841(b)(1)(C). The initial indictment alleged

W ard “knowingly and intentionally attempted to manufacture methamphetamine

. . . and such attempt resulted in the death of two individuals, in that, [W ard]

attempted to manufacture methamphetamine in a trailer . . . resulting in an

explosion and fire that caused the death of a 16-year-old male [Long] and a 20-

year-old woman [Shultz]” in violation of 21 U.S.C. §§ 841(a)(1), 846 and penalty

                                            -11-
provision 21 U.S.C. § 841(b)(1)(C).

      On June 5, 2003, W ard filed a motion to strike the language from the

indictment concerning the deaths of Shultz and Long. Because those deaths did

not result from the “use of” methamphetamine, W ard claimed the enhanced

penalty for death did not apply. The government objected. At a hearing on

August 27, 2003, the motion to strike was discussed. Prior to that discussion and

any ruling by the court, the government announced its intention to seek a

superseding indictment against W ard on September 2, 2003. Having found no

controlling authority concerning the meaning of “use of” for purposes of 21

U.S.C. § 841(b)(1)(C), the government decided to file a superseding indictment

against W ard for the murder of Shultz who, it had discovered the day before, was

an enrolled member of an Indian tribe, thereby establishing federal jurisdiction

over her death. On August 29, 2003, the court issued an order granting W ard’s

motion to strike. It concluded the enhanced penalty for death applies only when

the death results from the victim’s ingestion of a controlled substance which had

been distributed or manufactured by the defendant. Consequently, it determined

the enhanced penalty was not intended to apply where death results from the

defendant’s attempted manufacture of a controlled substance.

      Consistent with its announced intent, on September 2, 2003, the

government filed a superseding indictment against W ard, charging him with

second degree murder and attempting to manufacture methamphetamine. Two

                                        -12-
days later, W ard filed a M otion for Bill of Particulars, requesting the government

to substantiate the murder charge. The motion was denied.

      On appeal, W ard contends the government, without presenting any new

evidence to the grand jury, indicted him for the murder of Shultz to “punish” him

for successfully challenging the indictment and to incite the jury. 2 (Appellant’s

Opening Br. at 26.) He claims the filing of the superseding indictment constituted

prosecutorial vindictiveness and such vindictiveness is evident by the timing of

the indictment and the lack of new evidence supporting the murder charge.

      Normally, we review a district court’s factual findings on prosecutorial

vindictiveness for clear error and its legal conclusions de novo. United States v.

Sarracino, 340 F.3d 1148, 1177 (10th Cir. 2003). However, because W ard did

not raise this issue in the district court, our review is for plain error. United

States v. Buonocore, 416 F.3d 1124, 1128-29 (10th Cir. 2005). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir.) (en banc) (quotations omitted), cert. denied, 126 S.Ct. 495 (2005). W e




      2
        Ward also asserts the government indicted him for Shultz’s murder to allow it to
present evidence of his prior convictions, which he claims would not have been
admissible absent the murder charge. Not exactly. As we explain below, Ward’s prior
convictions were relevant to the attempted manufacture of methamphetamine charge and
would have been admissible in the absence of the murder charge.

                                          -13-
need not go beyond the first step because no error is evident.

      To prove prosecutorial vindictiveness, the defendant must prove either
      (1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness
      which will give rise to a presumption of vindictiveness. If the
      defendant proves either element, the burden shifts to the government to
      justify its prosecutorial decision based on legitimate, articulable,
      objective reasons. If the defendant fails to prove either element, the
      trial court need not address the government’s justification for its
      prosecutorial decision. M erely by the appearance of vindictive motives,
      vindictiveness may not be presumed. In determining whether the
      government has engaged in prosecutorial vindictiveness, this court must
      determine whether the prosecution engaged in conduct that would not
      have occurred but for the prosecution’s desire to punish the defendant
      for exercising a specific legal right.

Sarracino, 340 F.3d at 1177-78 (quotations and citations omitted).

      W ard’s vindictive prosecution claim fails. Although the government may

not punish a defendant for exercising constitutional or statutory rights in the

course of criminal proceedings, United States v. Raymer, 941 F.2d 1031, 1040

(10th Cir. 1991), it may punish him for violating the law. United States v. Carter,

130 F.3d 1432, 1443 (10th Cir. 1997). The government had probable cause to

believe Ward was responsible for Shultz’s death. Absent evidence of vindictive

motive, it was within its discretion to decide whether or not to prosecute W ard for

Shultz’s death and what charge to bring against him. Bordenkircher v. Hayes,

434 U.S. 357, 364 (1978). In this case, there is no indication the filing of the

superseding indictment was motivated by vindictiveness, i.e., to punish W ard for

successfully challenging the initial indictment. Rather, the record demonstrates it

was the result of the government learning it had jurisdiction over Shultz’s death

                                         -14-
due to her Indian heritage. Although it was filed immediately after the district

court’s ruling on the motion to strike, the government had previously announced

its intention to seek a superseding indictment to address Shultz’s death.

M oreover, the government had to aw ait the district court’s ruling on W ard’s

motion to strike before filing the superseding indictment because the ruling would

impact the attempted manufacture of methamphetamine charge, in particular,

whether the enhanced penalty applied. 3

      3. Evidentiary Errors

      W ard alleges the district court erred in allowing the government to

introduce evidence of his prior convictions, in allowing the jury to hear evidence

of Daniel Long’s death and in admitting hearsay testimony concerning the items

found at the scene. W e review evidentiary rulings for an abuse of discretion.

United States v. Rosario Fuentez, 231 F.3d 700, 708 (10th Cir. 2000). Given their

fact specific nature, we accord even greater deference to a district court’s hearsay

rulings. Id.

               a. Prior Convictions

      Prior to trial, the government filed a notice of intent to use evidence of




      3
        Ward was acquitted of the murder charge. Even assuming arguendo that Ward
had demonstrated prosecutorial vindictiveness, the probable remedy, dismissing the
murder charge or the superseding indictment, would have been for naught as the original
indictment charged him with attempting to manufacture methamphetamine, the charge for
which he was convicted.

                                          -15-
other crimes, wrongs or acts, to wit: W ard’s two 1996 convictions for

manufacturing and/or attempting to manufacture methamphetamine, as proof of

motive, intent, plan and knowledge. W ard objected and filed a motion in limine

to exclude the evidence. Finding the prior convictions probative of W ard’s

knowledge and intent under Rule 404(b) of the Federal Rules of Evidence and that

their probative value outweighed their unfairly prejudicial effect, the district court

overruled W ard’s objection and denied his motion in limine. At trial, prior to

testimony concerning W ard’s prior convictions, W ard renewed his objection. In

response, the government argued W ard’s prior convictions passed muster under

Rule 404(b) because they were probative of Ward’s knowledge of the

manufacturing process. Aside from Rule 404(b), the government argued they

were admissible for purposes of the murder charge as direct evidence of his

knowledge of the danger inherent in manufacturing methamphetamine. The

district court overruled W ard’s objection, concluding evidence of his prior

convictions was relevant concerning his knowledge of the dangerousness of

manufacturing methamphetamine. Consistent with this ruling, it gave the

following oral limiting instruction to the jury when the evidence was admitted:

      Ladies and gentlemen, I have allowed this . . . evidence about prior
      criminal involvement, and I think there will also be evidence of prior
      convictions of this defendant in regard to both the manufacture of
      methamphetamine and the attempted manufacture of
      methamphetamine. Ordinarily, prior convictions are not admissible
      against a defendant because we don’t want a jury to [t]hink, “W ell,
      just because they have committed a crime in the past, they must have

                                         -16-
         committed this crime.” That’s just not an appropriate thought
         process for a jury to go through.

         However, I have allowed this testimony in as it might be relevant to
         you on the question of his knowledge of the process by which
         methamphetamines are manufactured, and also on the issue of their
         dangerousness.

   (R. Vol. II at 298.) It followed up with a similar written and oral instruction in its

   final charge to the jury.

      On appeal, W ard continues to argue error in admitting evidence of his prior

convictions. First, he claims the government used the convictions to convince the

jury that he committed the instant offense, a purpose which is forbidden by Rule

404(b). Second, he states the evidence was not relevant and unfairly prejudicial

because the prior convictions were not temporally related to this case and involved a

different method of manufacturing methamphetamine. Next, although he concedes

his prior convictions were arguably relevant to show his knowledge of the danger

involved, W ard maintains it was not necessary for the government to use them to

prove knowledge. That is because two seasoned fire investigators who testified at

trial could have rendered their opinion concerning the dangerousness of cooking

chemicals in a confined area. W e begin our discussion with the last argument.

      Second degree murder requires malice aforethought. 18 U.S.C. § 1111(a).

W ard’s knowledge of the inherent danger of methamphetamine production is no

small part of that burden. Proof that W ard had first-hand experience with the

manufacturing process permits a jury to infer such knowledge. Expert opinion, while

                                           -17-
useful, cannot provide an equally probative substitute for that direct evidence.

Admission of W ard’s prior convictions involving methamphetamine production was

proper and not dependent on Rule 404(b), but they would also be admissible under

that rule.

       Rule 404(b) states:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of
       motive, opportunity, intent, preparation, plan, knowledge, identity, or
       absence of mistake or accident . . . .

“The list of proper purposes is illustrative, not exhaustive, and Rule 404(b) is

considered to be an inclusive rule, admitting all evidence of other crimes or acts

except that which tends to prove only criminal disposition.” United States v. Tan,

254 F.3d 1204, 1208 (10th Cir. 2001) (quotations omitted). “To determine if the

admission of Rule 404(b) evidence was proper, we apply a four-part test which

requires that: (1) the evidence was offered for a proper purpose under Fed. R. Evid.

404(b); (2) the evidence was relevant under Fed. R. Evid. 401; (3) the probative

value of the evidence was not substantially outweighed by its potential for unfair

prejudice under Fed. R. Evid. 403; and (4) the district court, upon request, instructed

the jury to consider the evidence only for the purpose for which it was admitted.”

United States v. Wilson, 107 F.3d 774, 782 (10th Cir. 1997). Evidence is relevant

under Rule 401 if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

                                          -18-
would be without the evidence.”

      The four requirements for admissibility of Rule 404(b) evidence are met in this

case. First, W ard’s prior convictions were not admitted to prove W ard’s criminal

disposition. Rather, they were offered to show W ard’s knowledge of the

manufacturing process and its dangerousness, both proper purposes under Rule

404(b). Second, the evidence was relevant under Rule 401. “[P]rior narcotics

involvement is relevant when [it] is close in time, highly probative, and similar to the

activity with which the defendant is charged.” United States v. Becker, 230 F.3d

1224, 1232 (10th Cir. 2000) (quotations omitted). W ard’s prior convictions involved

the manufacturing or attempted manufacturing of methamphetamine, one of the

charges for which he was tried. Although his prior convictions involved a different

manufacturing process, because they involved the same conduct (manufacturing as

opposed to possession or distribution) and the same drug, they were sufficiently

similar to the current offense.

      W ard’s prior convictions occurred approximately seven years earlier.

Remoteness may erode the probative value of extrinsic evidence. United States v.

Olivo, 69 F.3d 1057, 1064 (10th Cir. 1995), supp. on reh’g by 80 F.3d 1466 (10th

Cir. 1996); see also Becker, 230 F.3d at 1232. But not necessarily; “[t]here is no

absolute rule regarding the number of years that can separate offenses. Rather, the

court applies a reasonableness standard and examines the facts and circumstances of

each case.” United States v. Cuch, 842 F.2d 1173, 1178 (10th Cir. 1988). In Cuch,

                                          -19-
we affirmed the admission of evidence concerning an offense occurring over seven

years before the charged offense and recognized that other courts have allowed gaps

of five to thirteen years. Id. W e also noted the seven year gap was somewhat

misleading because during part of the time period, the defendant had been serving a

thirty month sentence on the prior offense. Id. The same is true here. W ard was in

prison on his 1996 convictions until November 27, 2001, and in fact, was on parole

from those convictions at the time he committed the instant offense. Only a year

passed between his release from prison and the commission of this offense. In any

event, the passage of time would not diminish his knowledge of the dangerousness of

manufacturing methamphetamine.

      As to the third admissibility requirement, the district court expressly weighed

the probative value of W ard’s prior convictions against the potential for unfair

prejudice under Rule 403 and concluded the former outweighed the latter. 4 The

disparity must be substantial and district courts are afforded broad discretion in Rule

403 balancing decisions. United States v. Cherry, 433 F.3d 698, 702 (10th Cir.

2005), cert. denied, 126 S.Ct. 1930 (2006). W e see no reason to disturb the district




         4
             Rule 403 states:

         Although relevant, evidence may be excluded if its probative value is
         substantially outweighed by the danger of unfair prejudice, confusion of the
         issues, or misleading the jury, or by considerations of undue delay, waste of
         time, or needless presentation of cumulative evidence.


                                           -20-
court’s Rule 403 decision.

      Lastly, the district court twice gave a proper limiting instruction. There was

no error in admitting W ard’s prior convictions.

             b. Daniel Long’s D eath

      On the day of trial, the government informed the court it wished to mention in

its opening statement that Daniel Long was the fourth person at the scene and that he

had died as a result of the fire. It wished to explain to the jury why it was

prosecuting Shultz’s death, but not Long’s, i.e., because federal jurisdiction only

extended to Shultz’s death. W ard objected based on the fact he was not charged with

Long’s death. The district court overruled the objection, stating a brief explanation

of Long’s death was appropriate for clarification purposes. It also stated the

government would be allowed to explain to the jury why it would be hearing more

about Shultz than Long.

      Based on the court’s ruling, in its opening statement, the government stated

two people died as a result of the fire, Shultz and Long. It also explained it only had

jurisdiction over Shultz’s death due to her being an enrolled member of an Indian

tribe. Later, during the testimony of Dr. Phillip Andre Floyd, Shultz’s treating

physician, the government asked him if he w as familiar with Long’s case. Defense

counsel objected. Outside of the hearing of the jury, the government informed the

court it only intended to ask Dr. Floyd whether Long had died and its purpose in

doing so was to tie up what happened to the fourth person on the scene. The court

                                           -21-
overruled the objection and Dr. Floyd said Long had died. In its closing rebuttal

argument, the government again mentioned Long’s death, stating

      Christopher W ard was making methamphetamine. [He] knew the
      dangers created by using that method in that trailer. . . . He brought a
      substance like this that said it was flammable, and he put it in that
      trailer. It was reckless, it was call[o]us, it was w anton. A 16-year-old
      boy and a 20-year-old girl died.

(V ol. IV at 616.)

      W ard argues the district court abused its discretion in allowing the government

to refer to and introduce evidence of Long’s death because he was not charged with

his death and it was not relevant to the charges against him. He suggests the

government’s actual purpose in referring to Long’s death was to inflame the passion

of the jury by attributing two deaths to him. W ard also contends that by questioning

Dr. Floyd concerning Long’s fate and making statements in closing argument to the

effect that W ard killed Long, the government abused the court’s ruling allowing it to

refer to Long’s death in its opening statement.

      W e are comfortable w ith the trial court’s decision to permit the government to

mention two deaths and explain why only one was charged. W e are less comfortable

with the government’s conduct. On a cold record, it seems it made more of Long’s

death than necessary for its announced purpose of placing events in context for the

jury. But a trial judge is in a much better position to determine if the government

exploited a legitimate purpose with ulterior motive and to assess the impact on the

jury. The judge also instructed the jury that argument of counsel is not evidence.

                                         -22-
Apparently, the jury was not inflamed— it acquitted on the murder charge. There

was no abuse of discretion. In addition, the substantial evidence supporting W ard’s

conviction for attempting to manufacture methamphetamine renders harmless any

possible overreaching as it may relate to that charge. See supra, Section A(5).

              c. Hearsay

      At trial, the government offered the testimony of Agent Robert Ryan of the

Drug Enforcement Agency (DEA). Agent Ryan has been involved in the

investigation or analysis of approximately 1,000 methamphetamine labs during his

law enforcement career. He described the “Nazi method” of methamphetamine

production, which was the alleged process involved in this case. 5 Upon his review of

the records in this case, Agent Ryan opined that a methamphetamine lab was present

in the trailer and it was the source of the fire. In making this determination, Agent

Ryan found relevant the presence of the propane tank containing anhydrous

ammonia, the red hose with blue coloring on both ends, the Coleman camping fuel,




          5
            The “Nazi method” of manufacturing methamphetamine obtained its name
   because the process originated in Germany and was utilized in World War II by their
   troops. It involves four steps. The first step is the extraction of pseudoephedrine from its
   pill form to a liquid using an organic solvent such as alcohol, methanol or camping fuel.
   The second step involves adding lithium or sodium metal and anhydrous ammonia to the
   liquid pseudoephedrine, thereby creating liquid methamphetamine. The next step is to
   clean the methamphetamine with a strong base such as lye and an organic solvent such as
   toluene, paint thinner, or camping fuel. The last step is called the gassing phase, whereby
   rock salt is mixed with a strong acid such as sulphuric, hydriodic or muriatic acid,
   creating hydrochloride gas. The gas is then mixed with the liquid methamphetamine,
   transforming it into a powder, which is again cleaned with an organic solvent.

                                             -23-
the two-burner stove, the acids/caustic acids removed by the DEA’s hazardous w aste

company, the lithium batteries and the rock salt. W hen he mentioned the

acids/caustic acids, defense counsel objected, arguing there had been no testimony

concerning the presence of acids. The government alleged Agent Ryan was merely

referring to the records he reviewed to form his opinion. The district court directed

the government to lay a better foundation. The government then asked Agent Ryan

to describe the clean-up process. Agent Ryan explained that the DEA is required to

utilize a licensed hazardous waste disposal company to clean up methamphetamine

lab sites. As part of the clean-up process, the disposal company is required by

federal regulation to prepare a document indicating the items taken from the scene;

one of the items listed on that document in this case was acids/caustic acids.

According to Agent Ryan, one of the fire investigators at the scene informed him that

he saw an acid-type bottle containing a yellow liquid. Agent Ryan testified this

liquid was most likely a sulphuric or muriatic acid which is typically found at

methamphetamine lab sites.

      On appeal, Ward argues the district court erred in allowing Agent Ryan to

testify concerning the clean-up company’s removal of acids/caustic acids from the

scene and the information he gleaned from the on-scene fire investigator because it

was hearsay. He also claims the error was not harmless as it was a critical piece of

the government’s case. Specifically, he states the acids/caustic acids and the bottle

containing the yellow liquid were two of the seven factors considered by Agent Ryan

                                          -24-
to form his opinion that methamphetamine w as being manufactured in the trailer.

      Because W ard did not raise a hearsay objection during Agent Ryan’s

testimony, we review for plain error, which, as w e have previously explained, occurs

when there is (1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Gonzalez-Huerta, 403 F.3d at 732; United States v. M artinez, 76 F.3d

1145, 1150 (10th Cir. 1996).

      “‘H earsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” F ED . R. E VID . 801(c). It is generally not admissible. F ED . R. E VID . 802.

But Rule 703 of the Federal Rules of Evidence states:

      The facts or data in the particular case upon which an expert bases an
      opinion or inference may be those perceived by or made known to the
      expert at or before the hearing. If of a type reasonably relied upon by
      experts in the particular field in forming opinions or inferences upon the
      subject, the facts or data need not be admissible in evidence in order for
      the opinion or inference to be admitted. Facts or data that are otherwise
      inadmissible shall not be disclosed to the jury by the proponent of the
      opinion or inference unless the court determines that their probative
      value in assisting the jury to evaluate the expert’s opinion substantially
      outweighs their prejudicial effect.

      Despite W ard’s contention to the contrary, Agent Ryan was testifying as an

expert on methamphetamine labs and the production of methamphetamine. The

clean-up company’s report he relied upon in rendering his opinion that

methamphetamine was being manufactured in the trailer was admissible evidence



                                            -25-
under the business records exception to the hearsay rule. See F ED . R. E VID . 803(6).

Therefore, under Rule 703, Agent Ryan could disclose it to the jury.

      Of a different ilk is A gent Ryan’s testimony concerning his conversation with

the on-scene fire investigator. It constituted hearsay to which no exception applied.

Therefore, it was inadmissible under Rule 703 unless the court concluded its

probative value substantially outweighed its prejudicial effect. No such

determination was made in this case, probably because W ard did not make a hearsay

objection. The trial court was therefore deprived of an opportunity to evaluate the

issue and, if necessary, take corrective action.

      Nevertheless, assuming Agent Ryan’s testimony concerning the acid-type

bottle of yellow liquid was erroneously admitted, W ard has not shown that the error

affected his substantial rights, the third prong of the plain error standard. “Satisfying

the third prong . . . usually means that the error must have affected the outcome of

the district court proceedings.” Gonzalez-Huerta, 403 F.3d at 732. Here, there was

other physical evidence at the scene associated with the manufacturing of

methamphetamine. Additionally, both Tiger and Baird testified W ard had admitted

to making methamphetamine in the trailer. Agent Ryan testified the burn pattern of

the fire was “very consistent” w ith methamphetamine lab fires he had investigated in

the past. (R. Vol. III at 388.) Based on this other evidence, we conclude W ard

cannot demonstrate the outcome of the trial was affected by Agent Ryan’s testimony

concerning the presence of the acid-type bottle of yellow liquid at the scene.

                                           -26-
      4. Prosecutorial M isconduct - Evidence of Other Crimes

      During re-direct examination, Tiger admitted methamphetamine was found in

her purse at the scene of the fire. W hen the government asked her where she got the

methamphetamine, she replied “Christopher W ard.” (R. Vol. III at 455.) Testifying

on behalf of the government, Baird stated that while he was visiting W ard in the

hospital after the fire, W ard told him “it wasn’t worth it.” (Id. at 468.) Baird

understood W ard to be talking about “cooking dope.” (Id. at 469.) Baird also stated

that after W ard was released from the hospital, W ard told Baird that he had been

making dope the night before and the night of the fire. During cross-examination, in

an attempt to establish that Baird had a motive to lie, defense counsel elicited that

Baird believed Ward had started Baird’s pickup truck on fire. On re-direct, the

government asked Baird whether W ard had been charged with arson pertaining to the

burning of Baird’s pickup truck. Baird responded affirmatively. At the time of trial,

W ard had been charged with starting Baird’s truck on fire. By the time of

sentencing, however, the charge had been dismissed because another individual had

confessed to the crime.

      On appeal, W ard contends the government committed prosecutorial

misconduct in questioning Tiger and Baird. He argues the government’s questions

constituted evidence of other crimes committed by W ard in violation of Rule 404(b)

of the Federal Rules of Evidence. Although conceding no objection was made to

these questions, W ard argues such an objection would have been futile and in any

                                           -27-
event, the government’s violation constituted plain error.

      Normally, “[a]llegations of prosecutorial misconduct are a mixed question of

law and fact, which we review de novo.” United States v. Pulido-Jacobo, 377 F.3d

1124, 1134 (10th Cir.) (quotations omitted), cert. denied, 543 U.S. 1030 (2004).

However, w here, as here, no objection is made at trial, our review is for plain error.

United States v. M agallanez, 408 F.3d 672, 679-80 (10th Cir.), cert. denied, 126

S.Ct. 468 (2005). Determining whether the government’s actions constituted

prosecutorial misconduct involves a two step process. First, we examine whether the

prosecutor’s conduct was in fact improper. Pudillo-Jacobo, 377 F.3d at 1134. If so,

then we determine whether the error w as harmless beyond a reasonable doubt. Id.

“To determine whether prosecutorial misconduct is harmless, we must look to the

curative acts of the district court, the extent of the misconduct, and the role of the

misconduct within the case as a whole.” Id. (quotations omitted).

      The challenged questioning of Tiger was proper. Prior to Tiger’s testimony,

there had been testimony that the only methamphetamine found at the scene of the

fire was in Tiger’s purse. By questioning Tiger on re-direct about the source of the

methamphetamine found in her purse, the government was merely attempting to

show that W ard was the source of the methamphetamine found at the scene, thereby

implying he was the methamphetamine cook. As to the government’s questioning of

Baird concerning whether W ard had been charged with the burning of Baird’s pickup

truck, it was proper rebuttal to the defense’s suggestion that Baird had a motive to lie

                                           -28-
because he believed Ward started his truck on fire. At the time of trial, W ard had

been charged with arson of Baird’s truck. Therefore, no plain error occurred.

Assuming error, it was harmless based on the other evidence presented supporting

the jury’s verdict, which we discuss next.

      5. Sufficiency of the Evidence

      W ard contends the government presented insufficient evidence at trial to

support his conviction. He claims the government at most showed that he had pled

guilty to manufacturing methamphetamine in the past, not that he attempted to

manufacture methamphetamine on the date charged. He also argues the evidence

showed that if anyone was manufacturing methamphetamine, it was Tiger. He states

both the trailer and the land upon which it was emplaced belonged to Tiger’s mother,

who left it in Tiger’s care while she was away. Additionally, W ard asserts neither

ephedrine or pseudoephedrine, critical ingredients in the manufacturing of

methamphetamine, were found at the scene. Nor was there any evidence that he

purchased these substances. Indeed, he states the only methamphetamine found at

the scene was in Tiger’s purse. Lastly, W ard maintains there was no evidence that

binders, lye, Drain-o, sulfuric acid, muriatic acid, beakers, vials, glassware, or pump

spray were found at the scene, although all are necessary in the manufacturing

process.

      “W e review de novo whether the prosecution presented sufficient evidence to

support a conviction.” United States v. Avery, 295 F.3d 1158, 1177 (10th Cir. 2002).

                                             -29-
“In conducting this review . . . we ask whether, taking the evidence--both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom--in the

light most favorable to the government, a reasonable jury could find the defendant

guilty beyond a reasonable doubt.” Id. (quotations omitted). W e will not evaluate

witness credibility or re-w eigh the evidence. Id. W e will only reverse a conviction

if no rational trier of fact could have reached the disputed verdict. United States v.

Wilson, 182 F.3d 737, 742 (10th Cir. 1999). “The evidence necessary to support a

verdict need not conclusively exclude every other reasonable hypothesis and need

not negate all possibilities except guilt. Instead, the evidence only has to reasonably

support the jury’s finding of guilt beyond a reasonable doubt.” Id. (citation and

quotations omitted). The jury has the “discretion to resolve all conflicting testimony,

weigh the evidence, and draw inferences from the basic facts to the ultimate facts.”

United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998).

“However, we may not uphold a conviction obtained by piling inference upon

inference.” Id. “An inference is reasonable only if the conclusion flows from

logical and probabilistic reasoning.” Id. “The evidence supporting the conviction

must be substantial and do more than raise a suspicion of guilt.” Id.

      To prove a defendant attempted to manufacture methamphetamine, the

governm ent must show :

      (1) intent to manufacture methamphetamine, and (2) commission of an
      act which constitutes a substantial step towards commission of the
      substantive offense.” Intent to manufacture methamphetamine may be

                                          -30-
      inferred from the surrounding circumstances. A substantial step is an
      act that is strongly corroborative of the firmness of the defendant’s
      criminal intent.

United States v. Haynes, 372 F.3d 1164, 1167-68 (10th Cir.) (citations and

quotations omitted), cert. denied, 543 U.S. 974 (2004). The jury was so instructed.

      The evidence, considered as a whole and in the light most favorable to the

government, was sufficient to convict W ard of attempting to manufacture

methamphetamine. Tiger testified as follows:

      W ard contacted her the day before the fire and asked her if he and his
      girlfriend (Shultz) could use the trailer that weekend. Tiger agreed. She
      and W ard purchased camping fuel in the very early morning hours of
      January 17, 2003. The next day, when Tiger let W ard and Shultz into
      the trailer, W ard told her “if everything goes okay, you know, I’ll give
      you a thousand dollars tomorrow .” (R. Vol. III at 412-13.) Later, W ard
      called her, asking her to bring him some salt. Tiger agreed and
      proceeded to the trailer accompanied by Long. W hile she was talking
      with W ard in the trailer, she noticed a curtain was on fire. Attempting
      to put out the fire, Tiger grabbed a coffeepot and threw its contents at
      the fire. Rather than dousing the fire, however, an explosion occurred
      and the whole trailer was immediately engulfed in flames. Once
      everyone was out of the trailer, they walked to the neighbors to get help.
      W hile walking, Tiger asked W ard what was in the coffeepot which
      would cause such an explosion. W ard told her he was cooking
      methamphetamine but to tell the police that the fire started when she
      attempted to light a heater inside the trailer. H e threatened to kill her if
      she said otherwise.

      Baird testified: (1) while visiting W ard in the hospital, W ard told him “it

wasn’t worth it, that what had happened to [Shultz.]” (id. at 468); (2) Baird

understood W ard to be talking about “cooking dope;” (id. at 469) and (3) after

W ard’s release from the hospital, he told Baird he had been making dope the night



                                           -31-
before and the night of the fire.

      In addition to Tiger’s and Baird’s testimony, the government demonstrated

that several items associated with the manufacturing of methamphetamine w ere

found at the scene of the fire. These items included a propane tank containing

anhydrous ammonia, an essential chemical in the “Nazi method” of manufacturing

methamphetamine. Even W ard’s own expert testified there would be no reason to

put anhydrous ammonia in a propane tank other than to make methamphetamine.

There was also a red hose w ith blue-colored fittings on each end. DEA Agent Robert

Ryan testified the blue coloring indicated that anhydrous ammonia had been passed

through it and W ard’s expert agreed. Agent Ryan also stated the fitting at one end of

the hose appeared to be consistent with that which would normally attach to a

propane tank. On the other end of the tank was a wand-type fitting which many

methamphetamine cooks use to stir the methamphetamine as they pass the ammonia

gas through the mixture. Patricia Anne Bayless W illis, Tiger’s mother and the owner

of the trailer, testified the propane tank and hose did not belong to her. Additionally,

lithium batteries, camping fuel, rock salt and acids/caustic acids were removed from

the scene. Agent Ryan testified these items were also associated with the “Nazi

method.” Given the presence of these items, W ard’s attempt to focus on items not

found at the scene is unavailing, especially given the fact that some of the items

could have been consumed in the fire.

      To the extent W ard argues the evidence showed that Tiger was the one

                                          -32-
manufacturing methamphetamine, this is contrary to her testimony and the other

evidence presented at trial. Additionally, the issue need not be so narrowly tailored.

Tiger’s discounting her involvement does not exculpate W ard. Based on the

evidence at trial, a jury could have concluded that both Tiger and W ard were

attempting to manufacture methamphetamine in the trailer.

      W ard’s insufficiency of the evidence argument fails.

      6. Cumulative Error

      W ard argues that to the extent we find harmless errors, the cumulative effect

of those errors rendered his trial fundamentally unfair. The cumulative error

analysis’ purpose is to address the possibility that “[t]he cumulative effect of two or

more individually harmless errors has the potential to prejudice a defendant to the

same extent as a single reversible error.” Rosario Fuentez, 231 F.3d at 709.

      A cumulative-error analysis merely aggregates all the errors that
      individually have been found to be harmless, and therefore not
      reversible, and it analyzes whether their cumulative effect on the
      outcome of the trial is such that collectively they can no longer be
      determined to be harmless. Unless an aggregate harmlessness
      determination can be made, collective error will mandate reversal, just
      as surely as will individual error that cannot be considered harmless.
      The harmlessness of cumulative error is determined by conducting the
      same inquiry as for individual error--courts look to see whether the
      defendant's substantial rights were affected.

Rivera, 900 F.2d at 1470. However, “[c]umulative-error analysis should evaluate

only the effect of matters determined to be error, not the cumulative effect of

non-errors.” Id. at 1471.



                                          -33-
        The only harmless error pertained to Agent Ryan’s hearsay testimony

concerning the acid-type bottle containing yellow liquid found at the scene. There is

no cumulate effect.

B.      Sentencing

        In W ard’s presentence report (PSR ), the probation officer decided the

applicable guideline for the offense of conviction was USSG §2D1.1, which sets a

base offense level determined by the quantity of drugs involved. 6 How ever, because

the drugs involved in this case were consumed in the fire, no quantity was available.

Consequently, the probation officer assigned W ard a base offense level of zero. She

then increased the base offense level to 30 pursuant to USSG §2D1.1(b)(5)(C), which

calls for a six level enhancement or a minimum offense level of 30 if the offense

involved the manufacturing of methamphetamine and created a substantial risk of

harm to the life of a minor. She treated W ard as a career offender under USSG

§4B1.1 and therefore assigned him an offense level of 34. See USSG §4B1.1(b)

(assigning an offense level of 34 if the offense of conviction’s statutory maximum is

twenty-five years or more). W ith a total offense level of 34 and a criminal history

category of VI, 7 the officer determined the applicable guideline range was 262 to 327


           6
             Ward was sentenced pursuant to the 2003 edition of the United States Sentencing
     Guidelines Manual. All citations to the guidelines in this opinion refer to the 2003
     guidelines unless otherwise indicated.
           7
              Although Ward’s criminal history points established a criminal history category
     of V, the career offender guideline required a criminal history category of VI. See USSG
     §4B1.1(b).

                                             -34-
months imprisonment. She also recommended W ard be directed to pay restitution in

the amount of $22,522.40 to Shultz’s parents based on their lost wages ($2,122.40)

and the payments they made for Shultz’s vehicle ($11,000) and funeral expenses

($9,400).

      W ard filed numerous objections to the presentence report. In particular, he

claimed restitution to Shultz’s parents was improper because he did not cause the fire

or Shultz’s death and restitution for her vehicle and lost wages was inappropriate. 8

W ard also argued the enhancement under U SSG §2D1.1(b)(5)(C) did not apply

because he did not cause the fire or Long’s death.

      The government filed a motion for upward departure arguing W ard caused the

death of two people, which it claimed was an aggravated circumstance not

adequately taken into consideration by the Sentencing Commission. It proposed an

upward departure to offense level 37, which is the offense level that would have

applied under the career offender guideline had W ard been convicted of murder.

      At sentencing, the district court concluded restitution was appropriate to

Shultz’s parents. It concluded there was no doubt W ard “was manufacturing

methamphetamine, and as a result of that manufacture, two people were killed, and I



            8
            The PSR was ambiguous as to whose lost wages Shultz’s parents were seeking--
   theirs or their daughter’s. At sentencing, Shultz’s mother clarified that the lost wages
   were for the wages she and her husband lost due to their being off work to be at the
   hospital with their daughter and to attend Ward’s trial. Because they were filed prior to
   sentencing, Ward’s objections to the PSR concerning its restitution recommendation were
   based on his belief that Shultz’s parents were seeking their daughter’s lost wages.

                                           -35-
think certainly M r. and M rs. Shultz are appropriate persons to be compensated as

victims under the statute.” (R., Sentencing Tr. at 6.) However, it determined

restitution was only appropriate for their lost wages and Shultz’s funeral expenses,

not her vehicle. Therefore, the court ordered restitution to be made to Shultz’s

parents in the sum of $11,522.40. The court also overruled W ard’s objection to the

USSG §2D1.1(b)(5) enhancement. 9 It stated it was satisfied that W ard was

manufacturing methamphetamine in the trailer, the methamphetamine lab exploded

causing the deaths of Shultz and Long and W ard knew of the danger of

manufacturing methamphetamine. Lastly, the district court denied the government’s

motion for upward departure, concluding the maximum sentence under the guideline

range satisfactorily served the purposes of punishment in the case. The court

sentenced W ard to 327 months imprisonment.

      W ard argues the district court erred in applying the USSG §2D1.1(b)(5)

enhancem ent and sentencing him as a career offender under USSG §4B1.1. He also

asserts the court erred in assessing restitution.

      1. Career Offender

       Section 4B1.1(a) of the sentencing guidelines provides:

      A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant comm itted the instant
      offense of conviction; (2) the instant offense of conviction is a felony



          9
           This enhancement did not affect Ward’s sentence due to the application of the
   career offender guideline. Ward conceded so at sentencing.

                                           -36-
      that is either a crime of violence or a controlled substance offense; and
      (3) the defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.

Relying on Blakely v. Washington, 542 U.S. 296 (2004), W ard contends the district

court erred in sentencing him as a career offender based on its factual findings

regarding the first and third elements of USSG §4B1.1(a). He states that under

Blakely, these facts were required to be submitted to the jury and proven beyond a

reasonable doubt. Although W ard acknowledges that Blakely retained the exception

for prior convictions, 10 he claims this exception was called into doubt in Justice

Thomas’ concurring opinion in Apprendi. 11

      W ard’s objections to the PSR did not include an objection to the career

offender enhancement. In particular, none of his objections included an objection

based on the Sixth Amendment. Thus, we review for plain error. Gonzalez-Huerta,

403 F.3d at 730. As stated previously, to establish plain error, W ard must

demonstrate there is “(1) error, (2) that is plain, which (3) affects substantial rights,

and which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 732 (quotations omitted).

      Subsequent to briefing in this case, the Supreme Court decided United States

v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). In Booker, the Supreme Court

extended its holding in Blakely to the federal sentencing guidelines, holding that the


          10
               See Almendarez-Torres v. United States, 523 U.S. 224 (1998).
          11
               Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                              -37-
Sixth Amendment requires “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict [to] be admitted by the defendant or

proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756. To remedy

the constitutional infirmity of the guidelines, Booker invalidated their mandatory

nature, requiring the district court to consult them in an advisory fashion. Id. at 756-

57 (severing and excising 18 U.S.C. §§ 3553(b)(1), 3742(e)).

      In Gonzalez-Huerta, we determined there were two types of error a district

court could comm it prior to Booker. 403 F.3d at 731. The first, referred to as

“constitutional Booker error,” occurs when the district court relies upon judge-found

facts, other than a prior conviction, to enhance a defendant’s sentence mandatorily, a

practice proscribed by the Sixth Amendment. Id. The second type of error, referred

to as “non-constitutional Booker error,” results when the district court applies the

guidelines in a mandatory rather than advisory fashion, even though the resulting

sentence was calculated based solely upon facts admitted by the defendant or found

by a jury. Id. at 731-32.

      The district court’s findings regarding the fact of W ard’s prior convictions did

not implicate the Sixth Amendment. United States v. M oore, 401 F.3d 1220, 1223-

24 (10th Cir. 2005). 12 M oreover, whether W ard’s prior convictions constituted



          12
              In spite of Shepard v. United States, 544 U.S. 13 (2005), Almendarez-Torres is
   still the law. Moore, 401 F.3d at 1224.

                                            -38-
felony crimes of violence or controlled substance offenses under USSG §4B1.1 are

questions of law unaffected by Booker. United States v. Small, 423 F.3d 1164, 1188

(10th Cir. 2005), cert. denied, 126 S.Ct. 1180 and 126 S.Ct. 1377 (2006). W ith

regards to the district court’s finding that W ard was at least eighteen-years-old at the

time of the current offense, no Sixth Amendment violation occurred. At sentencing,

W ard conceded the career criminal guideline controlled. Based on this concession,

he implicitly admitted he was at least eighteen-years-old at the time of the instant

offense. He also did not object to the PSR’s factual statement that his birth date was

M ay 4, 1977, rendering him twenty-five-years old at the time of the instant offense,

and it appears he informed the probation officer of this date for purposes of

preparing the PSR. 13

      Although no Sixth Amendment violation occurred at sentencing regarding the

career offender enhancement, the district court committed “non-constitutional Booker

error” based on its mandatory application of the guidelines. Consequently, the first

and second prongs of plain error review are satisfied— there was error and the error

was plain. Gonzalez-Huerta, 403 F.3d at 732. Under the third prong, W ard must

show that the error affects his substantial rights, that is, “the error must have been



          13
             In the “Personal and Family Data” section of the PSR, it states “Christopher Lee
   Ward was born on May 4, 1977, in Ft. Smith, Arkansas . . . .” (R. Supp. Vol. I, PSR at
   10.) Other statements within this section were clearly provided to the probation officer
   by Ward. Although it is not certain that Ward provided the probation officer with his date
   of birth, such assumption is reasonable based on the context in which his birth date
   appears in the PSR.

                                            -39-
prejudicial: It must have affected the outcome of the district court proceedings.”

United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir. 2005) (quotations omitted).

However, we need not decide whether W ard has satisfied the third prong of the plain

error standard because, even if he has, we conclude he has not met the fourth prong.

See Gonzalez-H uerta, 403 F.3d at 736 (concluding it was not necessary to determine

whether the third prong of the plain error test was met because the fourth prong must

also be satisfied to obtain relief and the fourth prong was not met).

      “Under the fourth prong of plain-error review , a court may exercise its

discretion to notice a forfeited error only if it seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Id. If “non-constitutional Booker

error” is involved, as here, the standard for satisfying the fourth prong is

“demanding”— the defendant must show that the error is “particularly egregious” and

that our failure to notice it w ould result in a “miscarriage of justice.” Dazey, 403

F.3d at 1178 (quotations omitted). W e have identified a number of non-exclusive

factors w hich may show that a defendant has satisfied the fourth prong:

      (1) a sentence increased substantially based on Booker error; (2) a
      showing that the district court would likely impose a significantly
      lighter sentence on remand; (3) a substantial lack of evidence to support
      the entire sentence the Guidelines required the court to impose; (4) a
      showing that objective consideration of the 18 U.S.C. § 3553(a) factors
      warrants a departure from the suggested guidelines sentence, and (5)
      other evidence peculiar to the defendant which demonstrates a complete
      breakdow n in the sentencing process.

United States v. Brooks, 438 F.3d 1231, 1244 (10th Cir. 2006). None of these factors



                                            -40-
are present here.

      In particular, there is no evidence the district court would impose a

significantly lighter sentence on remand. Indeed, the district court sentenced W ard

to the top of the guideline range. In doing so, the court stated: “I am giving [W ard]

the m axim um under the guidelines, as I do believe he caused the death of two

people.” (R. Sentencing Tr. at 12.) Although the district court rejected the

government’s motion for an upward departure, it stated it “believe[d] the maximum

sentence under the guidelines satisfactorily serves the purposes of punishment in this

case and I do believe the defendant should be severely punished for a short lifetime

but a lifetime of crime.” (Id.) This statement indicates the court was satisfied with

the sentence imposed and it would impose neither a lower nor higher sentence on

remand. The court’s statements also demonstrate that in imposing W ard’s sentence,

it considered the majority of the factors listed in 18 U.S.C. § 3553(a), including “the

nature and circumstances of the offense,” “the history and characteristics of the

defendant” and the need for the sentence imposed to “reflect the seriousness of the

offense,” “promote respect for the law ,” “provide just punishment” and “afford

adequate deterrence.” See Booker, 125 S.Ct. at 764 (“W ithout the ‘mandatory’

provision, the [Sentencing Reform Act of 1984] nonetheless requires judges to take

account of the Guidelines together with other sentencing goals” contained in 18

U.S.C. § 3553(a).). Consequently, we decline to exercise our discretion to correct

the error at sentencing.

                                          -41-
      2. USSG §2D1.1(b)(5)(C)

      Section 2D 1.1(b)(5)(C) of the sentencing guidelines provides: “If the offense

(I) involved the manufacture of . . . methamphetamine; and (ii) created a substantial

risk of harm to the life of a minor or an incompetent, increase by 6 levels. If the

resulting offense level is less than level 30, increase to level 30.” W ard argues the

district court erred in enhancing his sentence under this guideline based on its

finding that “his offense created a substantial risk of harm to the life of a minor.”

He claims this fact-finding violated his Sixth A mendment rights under Blakely.

W ard also contends that if this factual issue had been sent to the jury, it would not

have found as the court did because the jury found him not guilty of Shultz’s murder.

Thus, he asserts the jury would not have found him responsible for Long’s death.

      Although W ard objected to the USSG §2D1.1(b)(5)(C) enhancement in the

district court, he did not do so based on the Sixth Amendment. Therefore, plain error

review applies. Gonzalez-Huerta, 403 F.3d at 732. The district court committed

constitutional Booker error because it mandatorily enhanced W ard’s sentence under

USSG §2D1.1(b)(5)(C) based on facts neither admitted to nor found by a jury. Id. at

731. That error w as plain. Id. at 732. However, even assuming the error affected

W ard’s substantial rights, we decline to exercise our discretion to correct the error.

This is so because the U SSG §2D1.1(b)(5)(C) enhancement did not affect Ward’s

sentence. As he conceded at sentencing, the career criminal guideline controlled and

resulted in an offense level of 34 even in the absence of the USSG §2D1.1(b)(5)(C)

                                           -42-
enhancement.

      3. Restitution

      W ard argues the district court erred in imposing restitution because the

applicable statute, 18 U.S.C. § 3663, only authorized restitution in this case to the

alleged victim, Shultz, not her parents. However, in a footnote, he clarifies he is not

conceding that Shultz was a victim of the crime of conviction. W ard also contends

there was no evidence supporting the amount of restitution ordered. Lastly, W ard

claims that because the court’s restitution order enhanced his sentence, whether

W ard caused a loss and the amount of that loss needed to be determined by the jury

under Blakely. W e can readily dispose of the last argument. Because restitution is

not criminal punishment in the Tenth Circuit, Blakely and Booker do not apply to

restitution orders. United States v. Westover, 435 F.3d 1273, 1277 n.5 (10th Cir.

2006); United States v. Visinaiz, 428 F.3d 1300, 1316 (10th Cir. 2005), cert. denied

126 S.Ct. 1101 (2006).

      W e review the legality of a restitution order de novo. United States v.

Osborne, 332 F.3d 1307, 1314 (10th Cir. 2003). The factual findings underlying a

restitution order are reviewed for clear error and the amount of restitution for an

abuse of discretion. Id. Section 3663(a)(1)(A) of the Victim and W itness Protection

Act (VW PA) permits a court, when sentencing a defendant convicted of an offense

under 21 U.S.C. § 841, to order “the defendant make restitution to any victim of such

offense, or if the victim is deceased, to the victim’s estate.” It defines “victim” as “a

                                           -43-
person directly and proximately harmed as a result of the commission of an offense

for which restitution may be ordered including, in the case of an offense that

involves as an element a scheme, conspiracy, or pattern of criminal activity, any

person directly harmed by the defendant's criminal conduct in the course of the

scheme, conspiracy, or pattern.” § 3663(a)(2).

      In determining whether to order restitution under the VW PA, the court shall

consider “the amount of the loss sustained by each victim as a result of the offense,”

“the financial resources of the defendant, the financial needs and earning ability of

the defendant and the defendant’s dependents, and such other factors as the court

deems appropriate.” 18 U.S.C. § 3663(a)(1)(B)(I). “The government bears the

burden of proving, by a preponderance of the evidence, the amount of actual loss the

victim sustained as a result of the offense.” United States v. Grissom, 44 F.3d 1507,

1514 (10th Cir. 1995).

      W e conclude the district court erred in ordering restitution in this case. In

Hughey v. United States, the Supreme Court held “the language and structure of the

[VW PA ] make plain Congress’ intent to authorize an award of restitution only for

the loss caused by the specific conduct that is the basis of the offense of conviction.”

495 U.S. 411, 413 (1990). “Thus, a § 3663(a)(1) restitution order that encompasses

losses stemm ing from charges not resulting in convictions is unauthorized by the

restitution statute.” United States v. Wainright, 938 F.2d 1096, 1098 (10th Cir.

1991). Here, W ard was acquitted of Shultz’s murder. Based on our review of the

                                          -44-
evidence, it appears this was due to the fact that even though W ard may have been

manufacturing methamphetamine in the trailer, the jury could not find beyond a

reasonable doubt that this conduct caused the fire and thus Shultz’s death.

Therefore, it was improper for the court to order restitution to Shultz’s parents based

on its belief that W ard was responsible for Shultz’s death. The only restitution that

could have been ordered in this case is for the loss caused by W ard’s attempted

manufacture of methamphetamine. The government did not attempt to prove any

loss flowing from this conduct. Consequently, restitution was not appropriate.

      W e recognize that the guidelines permit a district court to consider a

defendant’s uncharged conduct, as well as conduct for which he was acquitted, in

calculating the defendant’s sentence. United States v. Watts, 519 U.S. 148, 154

(1997) (per curiam); United States v. M oore, 130 F.3d 1414, 1416 (10th Cir. 1997).

Nevertheless, restitution is governed by the VW PA, not the guidelines. United

States v. Blake, 81 F.3d 498, 506 n.5 (4th Cir. 1996); United States v. Silkowski, 32

F.3d 682, 688 (2d Cir. 1994). Indeed, USSG §5E1.1 authorizes a court to enter a

restitution order to an identifiable victim “if such order is authorized under 18 U.S.C.

§ 1593, § 2248, § 2259, § 2264, § 2327, § 3663, or § 3663A, or 21 U.S.C. 853(q).”

Thus, the fact that the district court could have potentially used its finding that

W ard’s m anufacturing of methamphetamine caused the fire which resulted in

Shultz’s death to enhance his sentence or depart upward under the discretionary

guidelines, the same finding cannot be used as a basis to order restitution when W ard

                                           -45-
was acquitted of causing Shultz’s death.

                                  III. Conclusion

      W e AFFIRM W ard’s conviction. W e REM AND to the district court with

directions to VACATE its restitution order. W e AFFIRM W ard’s sentence in all

other respects.



                                      Entered by the C ourt:

                                      Terrence L. O ’Brien
                                      United States Circuit Judge




                                           -46-
