                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
              UNITED STATES COURT OF APPEALS                               DEC 31 2002

                             TENTH CIRCUIT                           PATRICK FISHER
                                                                              Clerk



UNITED STATES OF AMERICA,

      Plaintiff-Appellee,
                                                        No. 01-6284
v.                                                (D.C. No. 00-CR-155-M)
                                                     (W.D. Oklahoma)
BLAKE HANKINS STOVER,

      Defendant-Appellant.




                       ORDER AND JUDGMENT *


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.


      Blake Stover appeals his life sentence for manufacturing and distributing

controlled substances and conspiracy to commit the same. See 21 U.S.C. § 846.

He alleges his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), or

alternatively that the district court made sentencing errors. We affirm.

      *
       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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
      Mr. Stover was found guilty of numerous charges related to the

manufacture and distribution of methamphetamine and cocaine. Under Count 1,

the jury found him guilty of conspiracy to manufacture or to possess with intent to

distribute between 500 grams and five kilograms of cocaine powder and in excess

of 500 grams of a mixture or substance containing a detectable amount of

methamphetamine. The statutory range of punishment for this charge is no “less

than 10 years or more than life.” 21 U.S.C. § 841(b)(1)(A). At sentencing the

district court adjusted the drug amounts attributed to Mr. Stover in the

Presentence Report, resulting in a base offense level of 38. The court enhanced

Mr. Stover’s offense level to 44 by adding four points for his role as a leader in

the conspiracy and two points for obstruction of justice. The court declined to

depart downward from Mr. Stover’s criminal history category of III, and

sentenced Mr. Stover to life in prison for Count 1.

      Mr. Stover contends his sentence is unconstitutional under Apprendi

because the drug amounts for his base offense level were determined by the

sentencing court under a preponderance of the evidence standard rather than

decided by the jury beyond a reasonable doubt. Because he did not raise this

objection below, we review for plain error. United States v. Lujan, 268 F.3d 965,

967 (10th Cir. 2001).

      The Supreme Court held in Apprendi that “[o]ther than the fact of a prior


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conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 490. But Apprendi “does not apply to sentencing

factors that increase a defendant’s guideline range but do not increase the

statutory maximum.” United States v. Sullivan, 255 F.3d 1256, 1265 (10th Cir.

2001), cert. denied, 534 U.S. 1166 (2002). Mr. Stover’s sentence falls directly

within the ambit of Sullivan. The jury found beyond a reasonable doubt that he

was guilty of conspiracy to manufacture, possess, and distribute an amount of

drugs sufficient to trigger the statutory sentencing range of ten years to life in

prison, see 21 U.S.C. § 841(b)(1)(A), and his sentence does not exceed that

statutory maximum. Therefore, Mr. Stover’s sentence does not violate Apprendi.

      Mr. Stover also attacks the district court’s sentencing findings. He first

contends the court erred by including personal drug use amounts to calculate his

statutory sentencing range. As Mr. Stover did not raise this objection below, we

again review only for plain error. Lujan, 268 F.3d at 967.

      Mr. Stover objects to the district court’s inclusion of 4,082.4 grams of

cocaine and five grams of methamphetamine in calculating his sentencing range

for count 1, contending the government failed to show he distributed or sold these

drug quantities to others. Pursuant to United States v. Asch, 207 F.3d 1238 (10th

Cir. 2000), “only those quantities of drugs that the government proves by a


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preponderance of the evidence [the defendant] obtained from [co-conspirators]

with the intent to distribute [can] be included when determining the statutory

sentencing range.” Id. at 1246. For a defendant to argue that some of the drugs

he received were not part of the conspiracy’s common objective, however, he

must produce evidence demonstrating he “always intended to personally consume

some specific portion of the drugs received from [his coconspirators].” Id.

      Mr. Stover did not present “personal[] testimony of actual consumption of

specific quantities” of narcotics to prove his personal drug use. Id. In failing to

do so, he did not give the district court an opportunity to make a factual

determination as to whether the alleged drug amounts should be excluded under

the rule articulated in Asch. In the absence of district court findings for our

review, we cannot find plain error. See United States v. Swepston, 987 F.2d 1510,

1516 (10th Cir. 1993).

      Mr. Stover further asserts the district court erred in calculating the overall

amount of drugs attributed to him, and in finding he was a leader in the

conspiracy. We review the district court’s sentencing findings of fact under the

clearly erroneous standard. United States v. Keeling, 235 F.3d 533, 535 (10th Cir.

2000), cert. denied 533 U.S. 940 (2001).

      In attacking the district court’s overall calculation of drugs attributable to

him, Mr. Stover argues the court’s finding was based on insufficient evidence


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provided by unreliable witnesses whose testimony was summarized by a drug

agent. These witnesses consisted primarily of drug dealers, drug users, and

individuals who had been indicted along with Mr. Stover but had received varying

forms of leniency in exchange for their willingness to testify against him. On

these grounds, Mr. Stover asserts the testimony of the witnesses was unreliable.

       At sentencing, the government was required to prove by a preponderance of

the evidence the quantity of drugs attributable to Mr. Stover. United States v.

Chatman, 994 F.2d 1510, 1516 (10th Cir. 1993). “Where, as here, the drugs are

not seized and the court relies upon an estimate to determine the offense level

under the sentencing guidelines, the information underlying the estimate must

possess a minimum indicia of trustworthiness.” United States v. Nieto, 60 F.3d

1464, 1469 (10th Cir. 1995) (quotation and citation omitted). “We give due

regard to the district court’s opportunity to judge the credibility of witnesses on

whose testimony it relied” in reaching its determination of the amount of drugs

attributable to a defendant. Chatman, 994 F.2d at 1517.

       While the district court’s calculations were based on a summary of witness

testimony provided by a federal agent at sentencing, the court nonetheless had the

opportunity to determine the credibility of the witnesses at trial. The court noted

that

       where issues have been raised as to the credibility of the individuals
       who have testified as to specific quantities and transactions, although

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      their credibility is questionable on one item or another, in so far as it
      relates to specific transactions and amounts of those transactions, the
      Court finds them credible for that purpose.

Rec., vol. I, doc. 276 at 6. The court also took “extreme care . . . to avoid any

double counting” of the drug amounts and “conservatively reached” the amount

attributable to Mr. Stover. Id. We are not persuaded the court erred in its

calculations.

      The district court also correctly enhanced Mr. Stover’s offense level by

four upon finding he “was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.” U.S.S.G. §

3B1.1(a). The government had the burden of proving by a preponderance of the

evidence that Mr. Stover had a leadership role in the conspiracy. United States v.

Cruz Camacho, 137 F.3d 1220, 1224 (10th Cir. 1998). The guidelines provide a

list of factors for the sentencing court to consider when making such a

determination, including the defendant’s

      exercise of decision making authority, the nature of participation in
      the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing of the offense, the nature and
      scope of the illegal activity, and the degree of control and authority
      exercised over others.

U.S.S.G. § 3B1.1, application note 4. All of the factors need not be satisfied to

support enhancement. United States v. Wacker, 72 F.3d 1453, 1476 (10th Cir.

1996). Nor does the government “have to prove that defendant controlled five or

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more participants. Instead, it must prove that five persons participated in the

criminal venture, and that Defendant exercised leadership control over at least

one person.” Cruz Camacho, 137 F.3d at 1224. The government met this burden.

      The evidence indicates Mr. Stover was involved in an enterprise that

included at least eighteen people. The government produced ample evidence to

show Mr. Stover exercised control over individuals in the conspiracy. He

directed people to sell and deliver drugs to certain buyers and dictated the prices

of the drugs, he ordered a co-conspirator to obtain a $5000 bank loan that was

used to purchase methamphetamine, he allowed individuals to use his rental

trailer to cook methamphetamine and paid for its electricity in exchange for a

portion of the drugs, and he paid bonding fees to facilitate the release of co-

conspirators who had been arrested on state charges. This evidence supports the

district court’s enhancement of Mr. Stover’s offense level for his role as a leader

or organizer of the conspiracy.

      Finally, Mr. Stover contends the district court erred in refusing to depart

downward in assigning his criminal history category. “A discretionary refusal to

depart downward is not reviewable by this court unless it appears from the record

the sentencing court erroneously believed the Guidelines did not permit a

downward departure.” United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir.

1995). The district court understood it could depart downward but denied Mr.


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Stover’s request to do so. We do not have jurisdiction to review this

discretionary decision.

      The district court is AFFIRMED.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




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