                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 27, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 06-5221
 v.                                              (D.C. No. 06-CR-33-01-JHP)
                                                (Northern District of Oklahoma)
 ANTHONY JOHN COLLINS, a/k/a
 “Tony,”

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before HENRY, Chief Judge, HOLLOWAY, and GORSUCH Circuit Judges.


                                  I. INTRODUCTION

      On February 13, 2006, Defendant—Appellant, Anthony John Collins, along

with six other defendants, was charged with one count of conspiracy to possess

controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and

(b)(1)(A)(viii), and (c)(2), and five counts of possession with intent to distribute,

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

(b)(1)(C).


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P.32.1 and 10th
Cir. R. 32.1.
      On July 7, 2006, pursuant to a plea agreement, Mr. Collins pled guilty to

the conspiracy to possess with intent to distribute controlled substances charge.

The plea agreement reserved Mr. Collins’s right to appeal the sentence. On

November 17, 2006, the district court, after hearing evidence on the matter of the

amount of the controlled substance, sentenced Mr. Collins to imprisonment for a

term of 168 months, five years’ supervised release, a fine of $1500.00, and a

$100.00 special assessment. Mr. Collins filed a timely notice of appeal. This

court exercises jurisdiction under 28 U.S.C. § 1291.

                              II. BACKGROUND

      Mr. Collins plead guilty to the conspiracy to possess with the intent to

distribute a controlled substance on July 7, 2006. This was Count 1 in the

original indictment. The Probation Office prepared a Pre-Sentence Report which

stated that Mr. Collins possessed a total of 8.115 kilograms of methamphetamine,

3.82 kilograms of an ephedrine and pseudoephedrine mixture, and 17 milliliters of

Phenylacetone, resulting in a base offense level of 38. Appellant’s Counsel

objected and stated that the evidence of drug quantity warranted only a base

offense level of 34. The court subsequently scheduled an evidentiary hearing.

      On September 29, 2006, the government presented a single witness, Angela

Sue Ensminger (formerly Angela Sue Nolen), the former wife of co-conspirator

Gary Nolen, and a co-conspirator herself. Ms. Ensminger testified that Mr.

Collins began making methamphetamine with Gary Nolen in 1999. She also

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testified that she found a rural residence where Nolen and Collins would

manufacture the methamphetamine. Ms. Ensminger aided further in the process

of making methamphetamine by purchasing packages of pseudoephedrine pills

and then retrieving the finished methamphetamine after its completion. At the

evidentiary hearing, Ms. Ensminger also testified that she picked up the finished

methamphetamine in bags containing “a pound or two” of the product every week

beginning in January of 2001 and ending in June of that year.

      Ms. Ensminger further testified that the methamphetamine manufacturing

continued in 2002 although at a different residence. She also stated that Mr.

Collins manufactured methamphetamine with another co-conspirator, Paul Davis.

Additionally, Ms. Ensminger stated that Mr. Collins described an incident in

Boynton, Oklahoma where he was present at the time of a police raid on a

methamphetamine operation. Mr. Collins had a conversation with his attorney,

with Ms. Ensminger present, where Mr. Collins claimed that the materials seized

by the police belonged to him.

      Appellant’s Counsel cross examined Ms. Ensminger whereupon she

admitted being a daily methamphetamine user. Appellant’s counsel did not

present any witnesses but did enter into evidence the grand jury transcript of Gary

Nolen. Closing arguments were then made and the court did not make a ruling at

that time.

      On October 5, 2006, the court held a proceeding in which it stated that at

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that point in time, “the Court has absolutely no evidence on which to accurately

estimate the drug quantities involved in this conspiracy.” Oct. 5 Tr. p. 2-3. The

court did not sentence Mr. Collins to a term of imprisonment commensurate with

a base offense level of 31, for which Appellant’s Counsel initially argued. The

court announced that it would hold another evidentiary hearing on the matter of

drug weight. Appellant’s Counsel objected to the “re-do” of the evidentiary

hearing and to the court raising the issue sua sponte.

      On October 24, 2006, the court held the next evidentiary hearing. The

government called Detective John Singer, a member of the Claremore, Oklahoma,

Police Department, who was a case officer on this matter. Detective Singer

testified that he was familiar with the facts of the conspiracy to which Mr. Collins

pled guilty. Detective Singer indicated that in his various opportunities to debrief

Ms. Ensminger, “she picked up one to two packages weighing approximately one

to two pounds” of methamphetamine. Oct. 24 Tr. at 7. Detective Singer also

testified that based on the conversion that one kilogram is equal to 2.2 pounds, a

conservative estimate put the total drug weight at one kilogram per week for eight

weeks–or eight kilograms over that period of time in 2001. Id. Next, Detective

Singer discussed the incident on October 17, 2002 where a search was conducted

at a home in Boynton, Muskogee County, Oklahoma. Detective Singer stated that

over 60 substances were found and submitted for a lab analysis. Id. at 8.

Detective Singer stated that a number of them tested positive for

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methamphetamine, pseudoephedrine, and both substances. Id. Detective Singer

noted in particular two weights; first, one substance weighing 2.9 kilograms

tested positive for pseudoephedrine and second, another substance weighing .9

kilograms tested positive for pseudoephedrine. Id. In total, Mr. Collins was

allegedly responsible for 3.8 kilograms of pseudoephedrine in these two incidents.

      The Government then asked Detective Singer if he was aware of a purchase

of pseudoephedrine made by Mr. Collins and Ms. Ensminger in Oklahoma City in

2001. Detective Singer answered affirmatively and testified that the purchase was

for $17,000 and involved ten cases of pseudoephedrine. Oct. 24 Tr. at 9. The

weight of those cases, Detective Singer stated, was 31 kilograms once separated

from the packaging holding the pseudoephedrine. Id. at 10. When asked for the

total weight of the October 2002 search and the 2001 Oklahoma City purchase,

Detective Singer testified that the amount would be more than six kilograms of

pseudoephedrine. Id.

      As the hearing progressed, the district court and Mr. Collins’s counsel had

a dialogue in which counsel stated that the Boynton conduct created 2.72

kilograms of methamphetamine and was a “verifiable amount” for which Mr.

Collins would take responsibility. Oct. 24 Tr. at 26-27. The district court

construed that as a minimum amount. Id. at 27. The government then provided

closing remarks and summarized that a preponderance of the evidence shows that

Mr. Collins was responsible for the manufacture of eight kilograms of

                                        -5-
methamphetamine from the Boynton residence, and approximately six kilograms

of pseudoephedrine from the combination of the 2001 Oklahoma City purchase

and the October 17, 2002 seizure.

      On November 7, 2006, the court held the last sentencing hearing in this

case. The court found that the drug quantities alleged were “an extremely

conservative estimate of the drug quantities actually involved in the conspiracy.”

Nov. 7 Tr. p. 7. The court also stated that if it were to disregard the amount of

methamphetamine produced, Mr. Collins’s base offense level would still be 38

based solely on the pseudoephedrine amount. Id. at 5. The court stated that this

was in part due to Mr. Collins’s admission in the plea agreement that he

purchased ten cases of pseudoephedrine. Id. at 5-6; See U.S.S.G. § 2B1.1, note

10; U.S.S.G. § 2D1.1. The court then sentenced Mr. Collins to a term of

incarceration totaling 228 months or 19 years.



                                III. DISCUSSION

      Mr. Collins presents three arguments for remanding his sentence. First, Mr.

Collins argues that the district court abused its discretion and violated his due

process rights by allowing the government to “re-do” their case against him.

Second, Mr. Collins argues that even considering the evidence presented at both

sentencing hearings, there was an insufficient basis to show the requisite drug

weight warranting a base offense level of 38. Finally, Mr. Collins argues that the

                                         -6-
sentence handed down by the district court is procedurally and substantively

unreasonable and therefore in violation of United States v. Booker and its

progeny.



1. Issue Concerning Abuse of Discretion at the Sentencing Hearing

      Mr. Collins argues that the district court violated his due process rights by

allowing the government to “re-do” their case and re-present additional witnesses.

Mr. Collins claims that the court’s conduct improperly provided the government

the proverbial “second bite at the apple.” Essentially, Appellant’s argument

amounts to a claim that the district court abused its discretion by continuing the

sentencing hearing in order to hear more evidence. Mr. Collins adequately

objected to the continuation of the September 29th sentencing hearing thereby

warranting our review for alleged abuse of discretion. See United States v. Gines,

964 F.2d 972, 977 (10th Cir. 1992); Dever v. Kansas State Penitentiary, 36 F.3d

1531, 1535(10th Cir. 1991) (holding that when an evidentiary hearing is not

mandatory, such a hearing is within its discretion and is reviewable for abuse of

discretion); United States v. Meyer, 157 F.3d 1067 (7th Cir.1998) (holding that

challenges to a district court’s reopening an evidentiary hearing are reviewed for

abuse of discretion).

      A sentencing court must fashion a sentence that is both procedurally and

substantively reasonable by properly calculating the base offense level and

                                         -7-
adequately explaining its reasoning for handing down a particular sentence. See

Gall v. United States, 128 S. Ct. 586, 594 (“It is also clear that a district judge

must give serious consideration to the extent of any departure from the Guidelines

and must explain his conclusion that an unusually lenient or an unusually harsh

sentence is appropriate in a particular case with sufficient justifications.”); United

States v. Verdin-Garcia, --- F.3d ----, 2008 WL 435495, *8 (10th Cir. 2008)

(holding that reasonableness in sentencing has two components–procedural and

substantive–which require an investigation into the process resulting in the

sentence and consideration of the factors contained in § 3553(a)); United States v.

Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.2007) (holding that § 3553(c)

requires a court to provide only a general statement of the reasons for giving a

within guidelines sentence); Id. at 1200 (holding that § 3553(c)(2) requires a

court to provide the specific reason for a sentence falling outside the guidelines

range).

      A sentencing court is tasked with properly calculating the base offense

level because the sentence handed down must be procedurally reasonable. See

United States v. Todd, --- F.3d ----, 2008 WL 363738, *5 (10th Cir. 2008) (citing

Gall v. United States, --- U.S. ----, ----, 128 S.Ct. 586 (2007); see also United

States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir.2006). As in the instant case,

when a defendant objects to a portion of the PSR, the court may hold an

evidentiary hearing to rule on the dispute in order to ascertain the appropriate

                                           -8-
base offense level and fashion a procedurally reasonable sentence. Fed. Crim. R.

Proc. 32(i)(3)(B).

      In the instant case, the sentencing court heard testimony from Ms.

Ensminger, which it found to be credible, but in the end not very helpful in

determining the amount of drugs involved. The sentencing court noted in its

October 5th proceeding that it was left with a dilemma because it did not have

enough information in order to determine the facts of the case and rule on the

issue. This epistemological void led the court to conclude that the sentencing

hearing should be continued in order for more evidence to be presented. The

court explicitly stated at the same October 5th hearing that Mr. Collins was also

welcome to present any additional testimony or evidence in support of his case.

      Although Mr. Collins couches this argument as one involving his due

process rights, the crux of this issue is whether the district court abused its

discretion in deciding to hear more evidence on the issue of drug weight. In the

instant case, the sentencing court stated in the October 5th hearing that it did not

have the information necessary to make a ruling on the issue of drug weight. It

did not say that the evidence was conclusive that the particular drug weight did

not exist; rather it stated that the information presented was in the end not very

clear. The continuation of the evidentiary hearing focused on clarifying the

evidence and providing the district court with a better view of the facts and

circumstances of Mr. Collins’s case. A district court is entitled to re-open an

                                          -9-
evidentiary hearing in order to ascertain the proper facts in a given case. See

United States v. James, 78 F.3d 851, 859 (3rd Cir. 1996) (Stapleton, J.,

concurring) (stating that a district court has discretion to reopen an evidentiary

hearing).

      The instant case could be confused with a very different circumstance

where reopening the evidentiary hearing could be precluded. In a case where a

sentence was appealed and remanded back to the district court, this court has

ruled that an appellate court has the authority to prevent the district court from re-

opening the hearing thereby requiring the district court to sentence the defendant

based on the original hearing and evidence contained therein. United States v.

Campbell, 372 F.3d 1179, 1182-83 (10th Cir. 2004); see United States v. Keifer,

198 F.3c 798, 801 (10th Cir. 1999) (holding that the general rule is that upon

remand, the sentencing hearing at the district court proceeds de novo). The

authority of the appellate court to limit supplementation of the sentencing hearing

in certain circumstances highlights the notion of finality that exists after the

district court has fashioned a sentence. However, the instant case is readily

distinguishable. The additional evidence proffered in the instant case came

before a sentence was handed down and before an appeal to this court. Thus,

there are no factors here that would urge us to remand this sentence back to the

district court with an instruction to limit sentencing to the record from the first

hearing alone. It is more accurate to look at the various proceedings below as all

                                          -10-
part of a single sentencing hearing that focused on determining the correct drug

weight involved. We feel there was no improper supplementation of the record,

particularly since both parties were allowed to present further evidence.

Furthermore, there was no finality to the proceeding until the close of the

November 7, 2006 hearing where the district court defined the sentence for Mr.

Collins.

      Mr. Collins argues that Eason v. United States, 281 F.2d 818 (9th Cir.

1960), requires a remand in this case. Eason involved a jury trial in the district

court where the defendant moved to reopen the case so that he might testify on a

point concerning a question presented by the jury after the case had been

submitted. 281 F.2d at 822. The court denied the defendant’s request to reopen

the case for him to testify. Id. Appellant argues that this case is on point for the

instant appeal. We disagree. This case is readily distinguishable on the basis that

the proceeding in Eason was a jury trial where the defendant’s guilt or innocence

was at issue, as opposed to a sentence hearing where the defendant has already

pled guilty. There are tangible concerns regarding prejudice to other parties, jury

confusion, and the potential for the new evidence to be overemphasized. Id.

      Appellant argues that fundamental fairness requires a reversal of the district

court’s procedure. However, it is clear from the October 5th transcript that the

court not only did not preclude Appellant from presenting additional evidence,

but encouraged him to do so. Thus, there was no prejudice to either party–both

                                         -11-
were allowed to present evidence on the matter at issue. Furthermore, the district

court continued the sentencing hearing in an effort to achieve the goal of handing

down a procedurally reasonable sentence by arriving at the proper base offense

level. The district court, in pursuit of its obligation to provide a procedurally

reasonable sentence, has an obligation to the process of finding facts by a

preponderance of the evidence and being correct upon handing down the

particular sentence. If, as it was in the instant case, it appears to the district court

that the information presented at the hearing so far was unhelpful in illuminating

the issue, then a continuance may be justified. See United States v. Gill, --- F.3d

----, 2008 WL 190789, * 16 (8th Cir. 2008); United States v. Davis, 194

Fed.Appx. 716, 717 (11th Cir. 2006). Here it was within the district court’s

discretion to continue the sentencing hearing with the hope of ascertaining a

better understanding of the circumstances of the case so as to appropriately rule

on the disputed portion of the PSR and properly calculate the appropriate base

offense level. We cannot say that the district court abused its discretion in the

instant case by allowing another hearing where both parties could present

additional evidence.

2. Sufficiency of the Evidence

      Mr. Collins argues that the evidence presented at the sentencing hearings

was insufficient for the sentencing court to find the drug amount warranting a

base offense level of 38. “We review a sentencing court’s determination of the

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quantity of drugs attributable to a defendant for clear error.” United States v.

Morales, 108 F.3d 1213, 1225 (10th Cir.1997). “In a controlled substances case,

a defendant is accountable for all quantities of contraband with which he was

directly involved and, in the case of [a conspiracy], all reasonably foreseeable

quantities of contraband that were within the scope of the criminal activity that he

jointly undertook.” United States v. Lauder, 409 F.3d 1254, 1267 (10th Cir.2005)

(citing U.S.S.G. § 1B1.3, cmt. n. 2). It should also be noted that a challenge to

the sufficiency of the evidence is also one that challenges the procedural

reasonableness of the sentence. See United States v. Galaz-Felix, 221 Fed. Appx.

790, 795 (10th Cir. 2007); United States v. Kristl, 437 F.3d 1050, 1166 (10th Cir.

2006) (per curiam). The procedural reasonableness claim will be addressed in

more detail below.

      As noted above, Mr. Collins pled guilty to a conspiracy charge and under

Lauder, he is responsible for the reasonablely foreseeable amounts of drugs

produced within the scope of the criminal activity in which he jointly

participated. Lauder, 409 F.3d 1254, 1267. In the November 7th hearing, the

district court stated that regardless of the amount of methamphetamine at issue,

the marijuana equivalency table would require a base offense level of 38 based

solely on the pseudoephedrine from either the Oklahoma City purchase in 2001 or

the October, 17th seizure. This is because one gram of pseudoephedrine is treated

as ten kilograms of marijuana. U.S.S.G. § 2D1.1(c). A three kilogram amount of

                                         -13-
pseudoephedrine would be the equivalent of 30,000 kilograms of marijuana which

results in a base offense level of 38. Id. In the instant case, the district court

found that there was a preponderance of evidence that Mr. Collins was

responsible for the pseudoephedrine seized in the October 17, 2002 search of the

Boynton residence. This amount totaled approximately 3.8 kilograms of

pseudoephedrine. Furthermore, Mr. Collins admitted in his plea agreement that

he, along with Ms. Ensminger, purchased ten cases of pseudoephedrine in

Oklahoma City in 2001 which was estimated by Detective Singer to constitute 3.1

kilograms of pseudoephedrine. Together, these incidents justify a finding that

Mr. Collins was responsible for 6.9 kilograms of pseudoephedrine whereas only

three kilograms would be necessary to warrant a base offense level of 38.

      In reviewing the evidence presented at the sentencing hearing and the

admission in the plea agreement, we find that the evidence resulting in a base

offense level of 38 was sufficient.

3. Procedural Reasonableness

      Mr. Collins argues that his sentence is unreasonable in violation of Blakely

v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220

(2005). Specifically, Mr. Collins argues that his sentence is (1) procedurally

unreasonable because the drug amount was not shown and therefore the base

offense level was improperly calculated and (2) substantively unreasonable

because his sentence of 19 years was plainly unreasonable.

                                          -14-
      We largely addressed the substance of the procedural reasonableness

argument above in determining the sufficiency of the evidence to show the drug

amount warranting a base offense level of 38. “In setting a procedurally

reasonable sentence, a district court must calculate the proper advisory Guidelines

range and apply the factors set forth in § 3553(a).” United States v. Atencio, 476

F.3d 1099, 1102 (10th Cir. 2007). Since we found that the district court had

sufficient evidence to calculate a base offense level of 38, Mr. Collins’s sentence

was properly calculated and therefore procedurally reasonable.

4. Substantive Reasonableness

      Finally, Mr. Collins argues that his 19 year sentence is substantively

unreasonable and should therefore be remanded. Mr. Collins contends that in

light of the § 3553(a) factors and his particular circumstances, an outside the

guidelines sentence would be reasonable. Appellant does not specifically lay out

what specific facts about his individual circumstance warrant imposition of an

outside the guidelines sentence. However, relevant facts are that he was a

methamphetamine addict who used the drug three times a week for fourteen years,

has never received drug rehabilitation, and that this criminal conduct coincided

with his acquaintance with Gary Nolen. Although § 3553(a)(D)(2) enumerates

the need for considering an individual’s medical and treatment needs in

considering sentencing, Mr. Collins’s addiction to illegal narcotics is all too

familiar. Addiction, although quite serious, is not sufficient by itself to make a

                                         -15-
within the guidelines sentence plainly unreasonable. Furthermore, that Mr.

Collins chose to associate with Mr. Nolen is not a fact that would warrant an

outside the guidelines sentence. We cannot say that the within guidelines

sentence is plainly unreasonable.

                               IV. CONCLUSION

      We AFFIRM the sentence handed down by the district court. The sentence

was properly calculated and was not plainly unreasonable. By continuing the

sentencing hearing to acquire additional evidence, the district court upheld its

duty to determine the appropriate base offense level and did not abuse its

discretion. In light of the testimony, the district court had sufficient evidence to

warrant a base offense level of 38.

      IT IS SO ORDERED.



                                       Entered for the Court


                                       William J. Holloway, Jr.
                                       Circuit Judge




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