                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           October 18, 2005
                                   TENTH CIRCUIT
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                       No. 04-4170
                                                            (D. Utah)
 ANTHONY DELLIS SPENCER, also                     (D.Ct. No. 03-CR-182-02-TC)
 known as Nikko,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, 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.

      Anthony Dellis Spencer pled guilty to attempted manufacture of



      *
          This order and judgment is not binding precedent except under the doctrines of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.
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and § 846. No specific

drug quantity was alleged in the indictment and his guilty plea did not include an

admitted drug quantity. He was sentenced to 110 months imprisonment based on

the district court’s finding by a preponderance of the evidence that the violation

involved a drug quantity of 21.25 grams of methamphetamine. Spencer appealed,

contending his sentence based on the judge-determined drug quantity is contrary

to the rule announced in Blakely v. Washington, 542 U.S. 296 (2004). 1 During

briefing, the Supreme Court issued its opinion in United States v. Booker, ___

U.S. ___, 125 S.Ct. 738 (2005). 2 Exercising jurisdiction under 28 U.S.C. § 1291,

we REMAND the case to the district court for resentencing consistent with

Booker.

Background

      On October 25, 2000, police discovered a clandestine methamphetamine

laboratory while executing a search warrant at a home in Sandy, Utah, owned by

Ron Pace. Further investigation revealed that at least two of the home’s

residents, Spencer and Russell Robertson, were responsible for the lab. 3 Both

      1
        In Blakely, the Supreme Court ruled that a sentence enhancement based upon
judge found facts can violate a defendant's Sixth Amendment rights.
      2
        We apply both Blakely and Booker to this appeal. See United States v. Clifton,
406 F.3d 1173, 1175 n.1 (10th Cir. 2005) (“We must apply the holdings in Blakely and
Booker to all cases in which a defendant properly raised an issue under either case.”).
      3
       The other residents of the home were Ron Pace, Mindy Pace and Roger Johnson.

                                           -2-
were later indicted. In particular, Spencer was charged with two counts of

possession of precursor chemicals (Counts I and II), possession of

methamphetamine with intent to distribute (Count III) and attempted manufacture

of methamphetamine (Count IV). He pled guilty to Count IV on January 14,

2004.

        The presentence report (PSR) listed numerous items discovered during a

search of the house, including an empty bottle of iodine crystals in the dresser in

a child’s bedroom. The PSR concluded, based on the presence of roughly 2.9

grams of methamphetamine 4 and several precursor chemicals discovered at the

residence, Spencer was subject to an offense level of 20. The PSR also found that

chemicals in the lab presented a substantial risk of harm to at least one child and

therefore, Spencer’s base offense level should be increased to 30. See USSG §

2D1.1(b)(5)(C). After reducing the offense level by 3 for acceptance of

responsibility, the total recommended offense level was 27. See USSG § 3E1.1.

The PSR placed Spencer’s criminal history at category VI.

        The district court held an evidentiary hearing to address Spencer’s various

objections to the PSR. Officer Jeff Payne of the Salt Lake City Police

Department, the government’s drug expert, testified he did not “assist” in the




       The 2.9 grams of methamphetamine were the amounts found in the possession of
        4

two other residents, Ron Pace and Russell Robertson, at the time of the search.

                                         -3-
investigation of the lab but his opinions were based on a review of the files. (R.

Vol. II at 164). When asked, “[c]an you tell the court how much crystal iodine a

two ounce bottle would produce?” he responded that the empty two-ounce bottle

of iodine discovered at the residence could have been used to produce three-

fourths to one ounce of “finished product.” 5 (R. Vol. II at 177.) At the close of

the hearing, the district court determined that there was no evidence to support the

enhancement for endangering a child, but concluded the parties would need a

transcript of the hearing to submit further briefing on other issues, including the

appropriate drug quantity to establish the base offense level.

      In the government’s brief, submitted prior to sentencing, the government

asserted that Officer Payne testified “the two-ounce bottle of iodine (56.6 grams)

found in the children’s room would have produced approximately three-quarters

of an ounce of methamphetamine” and that this evidence was unrefuted. (R. Vol.

1, Doc. 132 at 1). In response, Spencer’s sentencing memorandum reiterated the

question asked by the government and averred Officer Payne did not “clarify what

he meant by ‘finished product,’ whether he meant crystal idodine, as the

prosecutor asked him, or whether he meant actual methamphetamine or a

mixture.” 6 (R. Vol. 1, Doc. 136 at 4).

      5
          Three quarters of an ounce is approximately 21.25 grams of methamphetamine.
      6
         The sentencing guidelines discriminate between a “mixture or substance” and
“actual” quantities of a controlled substance. The term “actual” means the “weight of a

                                           -4-
      At sentencing, Spencer preserved his Blakely objection and argued the

amount of methamphetamine attributed to the empty iodine bottle was purely

speculative in the absence of any evidence as to where the bottle came from or

how much iodine it contained when it arrived at the residence. The government

again insisted that the two ounce bottle would yield “21.225 grams actual.”

(Supp. Appx. at 3.) The court responded, “Actual. That just comes from the

iodine?” (Id.) The government answered, “Right.” (Id.) As a result, the court

rejected Spencer’s position and based its sentence on the 21.25 grams of actual

methamphetamine that could have been produced had the empty bottle been filled

to capacity with two ounces of iodine.

Discussion

      In Booker, the Supreme Court applied its opinion in Blakely v. Washington,

542 U.S. 296 (2004), to the federal sentencing guidelines, holding that “[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 must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” Booker, 125 S.Ct. at 756. Justice Breyer's remedial opinion in Booker



controlled substance, itself, contained in the mixture or substance. For example, a
mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP
(actual).” USSG § 2D1.1 Notes (B). The difference here is 21 grams of a mixture results
in an offense level of 20 under USSG § 2D1.1(10), while 21 grams methamphetamine
(actual) result in an offense level of 28. See USSG § 2D1.1(6).

                                          -5-
then excised portions of the Sentencing Reform Act of 1984, codified at 18

U.S.C. § 3551 et seq., thus rendering the sentencing guidelines advisory. Id. at

757. Accordingly, prior to Booker, a district court could potentially make two

distinct types of error:

      First, a court could err by relying upon judge-found facts, other than
      those of prior convictions, to enhance a defendant's sentence
      mandatorily. As Booker makes clear, the Sixth Amendment prohibits
      this practice. . . . Second, a sentencing court could err by applying
      the Guidelines in a mandatory fashion, as opposed to a discretionary
      fashion, even though the resulting sentence was calculated solely
      upon facts that were admitted by the defendant, found by the jury, or
      based upon the fact of a prior conviction. While this type of
      sentence does not violate the Sixth Amendment, such a sentence is
      nonetheless impermissible because the Court severed the portion of
      the Sentencing Reform Act that required the mandatory application
      of the Guidelines.

United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en

banc) (internal citations omitted).

      We need not reach the non-constitutional error because the district court

violated the Sixth Amendment by making findings of fact that increased

Spencer’s mandatory sentencing range. Id. at 748-49. Thus, reversal is required

unless the error was harmless. United States v. Windrix, 405 F.3d 1146, 1158

(10th Cir. 2005). Harmless-error review stems from Federal Rule of Criminal

Procedure 52(a), which provides that “[a]ny error . . . that does not affect

substantial rights must be disregarded.” Clearly, the error here was not harmless.

Spencer’s base offense level, absent any increase based on judicial fact-finding,


                                          -6-
was 12. With a base offense level of 12 and a criminal history category of VI, the

applicable guideline range is nine to fifteen months imprisonment, rather than the

110 months currently imposed. Further, the government “concedes that the record

contains no evidence to support the conclusion that Spencer produced at least 20

grams of actual methamphetamine with the two-ounce bottle of iodine.”

(Appellee’s Br. at 9-10.) Therefore, the government requests we remand for

resentencing with an opportunity to present new evidence.

      Spencer disagrees, contending that our remand should be limited to the

record previously developed in the district court. He persuasively argues that the

situation here is very similar to that in United States v. Campbell, 372 F.3d 1179

(10th Cir. 2004). In Campbell, the government conceded that it did not allege or

prove an essential element to support a sentence enhancement. 372 F.3d at 1182.

In the order for remand, we exercised our discretion under 18 U.S.C. § 3742(f)(1)

and limited resentencing to the existing record. Id. at 1183. We did so because

even though the “[d]efendant alerted the government to the deficiency in its

evidence, the government did not seek to cure the deficiency, and instead made

patently erroneous legal arguments as to why such proof was not needed.” Id. In

light of that record, we declined “to give [the government] a second bite at the

apple.” Id.

      Here, Spencer alerted the government to the absence of any evidence to


                                        -7-
establish the empty iodine bottle produced “at least 20 grams but less than 35

grams of methamphetamine (actual)” as required to reach its alleged base offense

level. Despite such notice and a transcript of the evidentiary hearing prior to

sentencing, the government did not alert the district court to any problem nor did

it attempt to supplement the record, even though the appropriate drug quantity

was one of the primary issues at the upcoming sentencing hearing. Instead, it

continued to argue to the court that Officer Payne’s testimony had established its

burden of proof. As noted above, the government now admits Spencer was

correct in his claim that no evidence was presented to establish an actual quantity

of methamphetamine. Given the clear warning provided by Spencer prior to

sentencing and the government’s opportunities to rectify the situation, we must

agree that the situation is strikingly similar to that of Campbell. Therefore, we

follow its example and decline to “invite an open season for the government to

make the record that it failed to make in the first instance." Id., quoting United

States v. Torres, 182 F.3d 1156, 1164 (10th Cir.1999).

Conclusion

      For the foregoing reasons, we REMAND for resentencing in accordance with

Booker, but on the record as it now stands.

                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge

                                         -8-
