                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           AUG 4 2003
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 02-6295
 v.
                                                    (D.C. No. CR-01-23-T)
                                                         (W.D. Okla.)
 TODD CHRISTOPHER MANN,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.


      Defendant-Appellant, Todd Christopher Mann, challenges his conviction on

direct appeal, arguing that neither his guilty plea nor his waiver of appeal in his

plea agreement should be binding because the government acted in bad faith to

circumvent the agreement’s terms. The government submits a motion to dismiss

for lack of jurisdiction, but waivers of appeal are not jurisdictional. We instead



      *
         After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
evaluate waivers of appeal under the principles of contract. See generally United

States v. Black, 201 F.3d 1296, 1300 (10th Cir. 2000) (discussing waivers of

appeal).

      “Whether government conduct has violated a plea agreement is a question

of law which we review de novo.” United States v. Hawley, 93 F.3d 682, 690

(10th Cir. 1996). In evaluating allegations of a breach of agreement, we examine

the nature of the promise made, and do so in light of a defendant’s reasonable

understanding of the promise at the time he plead guilty. United States v. Brye,

146 F.3d 1207, 1210 (10th Cir. 1998); United States v. Peterson, 225 F.3d 1167,

1170-71 (10th Cir. 2000). We find no evidence of bad faith or breach of promise

in the government’s actions, and hold defendant’s waiver of his appeal to be

binding.

      On February 6, 2001, Mann was charged with a five-count indictment for

drug-related crimes. On November 8, 2001, pursuant to an agreement with the

federal government, Mann plead guilty to a single charge of conspiracy to

manufacture, possession with intent to distribute, and distributing fifty grams or

more of a mixture or substance containing a detectable amount of

methamphetamine in violation of 21 U.S.C. §841(a)(1). Mann specifically agreed




                                        -2-
to waive his right to appeal. 1 He was sentenced at the bottom of the guideline

range to 263 months. (Sentencing Tr. Vol. II at 183.)



      1
          The language of Mann’s waiver of his right to appeal was:

      Defendant understands that a sentencing guideline range for his case
      will be determined by the Court under guidelines issued by the U.S.
      Sentencing Commission. Defendant also understands that the Court
      has jurisdiction and authority to impose any sentence within the
      statutory maximum for the offense(s) to which he is pleading guilty.
      Defendant further understands that Title 18, United States Code,
      Section 3742, gives him the right to appeal the judgment and
      sentence imposed by the Court. Acknowledging all this, defendant in
      exchange for the promises and concessions made by the United States
      in this plea agreement, knowingly and voluntarily waives his right to
      appeal or collaterally challenge:
             a. Defendant’s guilty plea and any other aspect of his
      conviction, including but not limited to any rulings on pretrial
      suppression motions or any other pretrial dispositions of motions and
      issues.
             b. Defendant’s sentence as imposed by the Court and the
      manner in which the sentence is determined, provided the sentence is
      within or below the applicable guideline range determined by the
      Court to apply to this case, even if the Court rejects one or more of
      the positions of the United States or the defendant set forth in
      paragraph 7 concerning the application of the U.S. Sentencing
      Guidelines; provided that (i) defendant specifically does not waive
      the right to appeal an upward departure from the sentencing guideline
      range determined by the Court to apply to this case, and (ii) his
      waiver of rights to appeal and to bring collateral challenges shall not
      apply to appeals or challenges based on changes in the law reflected
      in Tenth Circuit or Supreme Court cases decided after the date of this
      agreement which are held by the Tenth Circuit or Supreme Court to
      have retroactive effect.

      (Plea Agreement ¶ 8, ROA Doc. No. 44 [hereinafter Plea
      Agreement].)

                                        -3-
      As part of the plea agreement, the government informed Mann in relevant

part that it intended to present evidence at his sentencing to the effect that: (1) the

government was aware that Mann was responsible for 1.5 kilograms or more of

actual methamphetamine; and (2) the government was aware of factors that might

cause Mann’s offense level to be enhanced for being a manager or supervisor of a

criminal activity that involved five or more participants under U.S.S.G.

§3B1.1(b), 2 or to be enhanced for being an organizer, leader, manager, or

supervisor of other criminal activity under U.S.S.G. §3B1.1(c). 3 (Plea Agreement

¶7, ROA Doc. No. 44 [hereinafter Plea Agreement].) The government further

reserved the right to inform the probation office and the court of all other

activities the government deemed relevant to sentencing. (Id. at ¶17.) Mann

noted his objection to the two positions indicated, but signed the agreement in

full. (Id. at ¶19.)


      2
          The text of U.S.S.G. §3B1.1(b) reads:

      Based on the defendant’s role in the offense, increase the offense
      level as follows: . . . (b) If the defendant was a manager or
      supervisor (but not an organizer or leader) and the criminal activity
      involved five or more participants or was otherwise extensive,
      increase by 3 levels.
      3
          The text of U.S.S.G. §3B1.1(c) reads:

      If the defendant was an organizer, leader, manager or supervisor in
      any criminal activity other than described [above], increase by 2
      levels.

                                          -4-
      Mann and the government also negotiated over the language of his

Presentencing Report (PSR). Mann admitted that the government could attribute

3.3 kilograms (3300.65 grams) of mixed product methamphetamine to him. (Aplt.

Br. at 6; Aple. Br. at 3.) They disagreed, however, about the purity of the 3.3

kilograms for an undetermined yield of pure methamphetamine. Mann admitted

in his plea colloquy that the 3.3 kilograms of substance was methamphetamine, 4

but neither party had the drug tested in a laboratory for its degree of purity. On

August 19, 2002, the district court heard arguments on purity at Mann’s

sentencing. 5

      At sentencing, the government introduced testimony from three witnesses.

The first witness, Andres Torres Sanchez, testified that he had cooked

methamphetamine with Mann, and described in detail the recipe they used. (Dist.

      4

      Question:  Using [the substance you had manufactured], did you, in fact,
                 know that what you had cooked was, in fact,
                 methamphetamine?
      Defendant: I would say “Yes.” Yes, ma’am.
      Question: If a chemist had been able to analyze the substance that you
                 cooked on those occasions at the Brighton Apartments, would
                 have you any dispute with a statement that it was, in fact,
                 methamphetamine that you manufactured?
      Defendant: No, I wouldn’t have a dispute with that. No.

      (Plea Colloquy at 10.)
      5
         Mann concedes that the district court properly had the power to conduct
this hearing and determine the quantity and purity of methamphetamine “by use of
circumstantial and historical evidence.” (Aplt. Br. at 17.)

                                        -5-
Ct. Op. at 2.) Sanchez had ingested the methamphetamine they cooked and

described it as of “good quality” and having a purity of “nine” on a scale of one

to ten. (Id.) The second witness called by the government was Inspector Mark

Danner of the Oklahoma City Police Department, a veteran law enforcement

officer with fourteen years of experience in narcotics. (Id.; Sentencing Tr. Vol. 1

at 43.) Inspector Danner testified that the pseudoephedrine/red phosphorous

reduction method Sanchez had described was the predominant method to cook

methamphetamine in the area, and that the purity of methamphetamine on the

streets in Oklahoma was typically between fifty-seven and ninety-six percent.

(Dist. Ct. Op. at 2-3.) The final witness called by the government was Lori Ann

Callaway. Callaway testified that she had used the methamphetamine cooked by

Mann and that his product was “good,” “very good,” and “ten” on a scale of one

to ten. (Id. at 3.)

       Mann called one witness to testify on his behalf. Gene Gietzen, a forensic

scientist and owner of a consulting firm in Missouri, testified that the purity of

illegal methamphetamine in his own experience ranged from four percent to the

“high eighties.” (Id.) He also noted that the Drug Enforcement Administration’s

website recorded the average purity of illegal methamphetamine submissions to be

thirty-five percent in 2000, and forty percent in 2001. (Id.) On cross-

examination, however, Gietzen admitted that a highly-regarded article by Forensic


                                         -6-
Science International in 1991 had found the generally accepted purity level of

methamphetamine produced by clandestine laboratories to be ninety-five percent.

(Id. at 3-4.)

       The district court ultimately found that the government had proven by a

preponderance of the evidence that the methamphetamine Mann produced was at

least fifty-seven percent pure, the lowest level of purity in Oklahoma and well

within the range given by Mann’s defense expert as comporting with his personal

experience. (Id. at 6.) If the 3.3 kilogram mixture were fifty-seven percent pure,

Mann would be responsible for 1.88 kilograms of methamphetamine. (Id. at 7.)

This gave him an offense level of 39, and a sentencing range of 262 to 327

months. (Id.)

       Mann now alleges that he should not be bound by his waiver of appeal

because the government acted in bad faith at the hearing on two issues. First,

Mann alleges that, despite agreement in the PSR that Mann would be responsible

for 3.3 kilograms of mixed substance, the government solicited testimony from its

witnesses regarding additional quantities of methamphetamine he was responsible

for manufacturing in addition to the purity of his mixture. (Aplt. Br. at 9.)

During the hearing, the government asked Sanchez how many cases of

pseudoephedrine would make a pound of methamphetamine. (Sentencing Tr. Vol.

I at 28.) The government also asked Inspector Danner how much


                                         -7-
methamphetamine Mann manufactured at one time and how it was distributed to

others. (Id. at 48-49.) Mann objected both times at the hearing that quantity was

not at issue. The government explained that the amount of pseudoephedrine

added to the mixture, as well as the amount of the methamphetamine

manufactured at one time could be relevant to the question of purity. (Id. at 29,

48-49.) The district court overruled Mann’s objections and permitted the

testimony. (Id. at 29, 49.)

      Second, Mann alleges that, despite the fact that the government had warned

him in the PSR only about information it had gleaned from Callaway about

Mann’s potential leadership role, the government solicited testimony at the

sentencing hearing regarding Mann’s role in the conspiracy to manufacture,

possess, and distribute methamphetamine from other sources as well. (Aplt. Br.

at 12.) During the hearing, Sanchez testified that Mann had led or organized at

least five other people in addition to Callaway. (Id.; Sentencing Tr. at 33-36.)

The district court overruled Mann’s objection to this testimony and permitted the

government to use it in supporting the sentencing enhancement for a leadership

role under U.S.S.G. §3B1.1(b) or (c). (Sentencing Tr. at 33, 37.)

      We hold that neither of Mann’s allegations demonstrates that the

government acted in bad faith or breached the terms of the agreement. As the

district court found, the few references to quantity in witness’ testimony were


                                        -8-
relevant to the question of purity, especially given the detail of information

presented about the recipes involved. Finally, although it would have been

preferable for the government to have warned Mann about the testimony Sanchez

would give about leadership, we find no violation of the terms of the plea

agreement at the time Mann plead guilty. Brye, 146 F.3d at 1210; Peterson, 225

F.3d at 1170-71. Sanchez’s testimony about leadership does fall into the general

category of information that the government warned Mann it intended to present

in the plea agreement. The evidence properly shed light on whether Mann’s

offense level should have been enhanced for having an important leadership role

under U.S.S.G. §3B1.1(b) or (c). (Plea Agreement at ¶7); cf. also United States v.

Hand, 913 F.2d 854, 856-57 (10th Cir. 1990) (holding that the government is not

obliged to “stand mute in the face of incorrect or misleading testimony offered

before the trial court”).

      Accordingly, we hold Mann to the terms of his waiver of appeal and

AFFIRM his conviction. The government’s motion is DISMISSED as moot.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge



                                         -9-
