                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       December 14, 2005
                                TENTH CIRCUIT
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-6298
          v.                                           W.D. of Okla.
 FELIX DARRELL STAFFORD,                           (D.C. No. CR-03-254)

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before EBEL , HOLLOWAY , and TYMKOVICH , Circuit Judges.



      Felix Darrell Stafford was indicted for manufacturing methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and using unlawful drugs while in possession

of a firearm in violation of 18 U.S.C. § 922(g)(3). He entered a guilty plea to the

firearm charge and the government agreed to dismiss the manufacturing charge.

He was sentenced to 120 months. On appeal Stafford argues his sentence is




      *
       This order and judgment is not binding precedent, except under the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.
unconstitutional under the tenets of United States v. Booker, 125 S. Ct. 738

(2005).

      Finding any sentencing error to be harmless, we AFFIRM.

                                  I. Background

      Under the United States Sentencing Guidelines, Stafford’s potential

sentence for the firearm charge was enhanced because he possessed unlawful

drugs in connection with the offense of conviction. See USSG § 2K2.1(b)(5).

Prior to sentencing, the government alleged in its presentence report (PSR) that

the court should attribute at least 15 ounces of methamphetamine to Stafford.

This calculation was based upon an estimate of Stafford’s methamphetamine

production derived from the government’s background investigation. Given his

criminal history and other adjustments, the PSR recommended that Stafford be

sentenced at an offense level of 38, with a corresponding sentence at the statutory

maximum of 120 months pursuant to 18 U.S.C. § 924(a)(2).

      Stafford objected to the PSR’s drug quantity calculation, arguing that the

Oklahoma State Bureau of Investigation lab report did not support a finding that

he was responsible for at least 15 ounces of methamphetamine. He argued the




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amount of methamphetamine properly attributed to him yielded an offense level

of 26, with a corresponding sentencing range of 63 to 78 months. 1

      To resolve Stafford’s objection to the drug quantities, the district court held

an evidentiary hearing. One of Stafford’s suppliers testified. According to her

testimony, she provided Stafford “three to five cases” of pseudoephedrine pills, a

methamphetamine ingredient, on a regular basis for approximately six months.

She testified that “three cases a week times four weeks a month times six months”

would yield an accurate number of the cases supplied. Sent. Tr. 8-9. She knew

from her experience that Stafford produced about one ounce of methamphetamine

from each case of pseudoephedrine she supplied. Setting aside the drugs actually

found at Stafford’s home, her testimony confirmed that Stafford was responsible

for as much as 72 ounces of methamphetamine, far in excess of the 15 ounces

attributed to him in the PSR. Although his counsel cross-examined the supplier,

Stafford offered no additional rebuttal evidence contesting drug quantities.

      The district court accordingly accepted the PSR’s recommendation that

Stafford possessed at least 15 ounces. The court sentenced Stafford to the

statutory maximum of 120 months.



      1
        Stafford’s brief does not specify the precise quantity of methamphetamine
that should have been attributed to him, although his counsel stated at sentencing
that Stafford possessed an amount of methamphetamine equivalent to 200.6
kilograms of marijuana. Sent. Tr. 19.

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                                   II. Discussion

       The Supreme Court has held district courts may commit two distinct types

of error at sentencing under the Sentencing Guidelines. As we explained in

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

sentencing court commits “constitutional”         Booker error “by relying upon

judge-found facts, other than those of prior convictions, to enhance a defendant’s

sentence mandatorily.” A sentencing court may also commit “non-constitutional”

Booker error “by applying the Guidelines in a mandatory fashion, as opposed to a

discretionary fashion[.]”   Id. at 731. Stafford claims the district court committed

both types of Booker error by (1) finding he was responsible for 15 ounces of

methamphetamine, and (2) sentencing him mandatorily pursuant to the

Guidelines . 2

       Even if the sentencing court committed error, we review for harmlessness.

“Any error, defect, irregularity, or variance that does not affect substantial rights

must be disregarded.” Fed. R. Crim. P. 52(a). The government bears the burden

of proof, and “[i]f the error is of constitutional magnitude, as it is here, the




       2
        Although Stafford was sentenced before the Supreme Court announced its
decision in Booker, he properly preserved his non-constitutional and
constitutional objections at sentencing. See United States v. Labastida-Segura,
396 F.3d 1140, 1142-43 (10th Cir. 2005) (discussing objections in direct appeals).

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government is required to prove the error was harmless beyond a reasonable

doubt.” United States v. Lang, 405 F.3d 1060, 1065 (10th Cir. 2005).

      A defendant’s substantial rights under Rule 52 may be affected in two

ways. The first way is if “a jury applying a reasonable doubt standard would not

have found the same material facts that a judge found by a preponderance of the

evidence.” United States v. Small, 423 F.3d 1164, 1190 (10th Cir. 2005) (citing

United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir. 2005)). A defendant’s

substantial rights may also be affected if there is “a reasonable probability that,

under the specific facts of his case as analyzed under the sentencing factors of 18

U.S.C. § 3553(a), the district court judge would reasonably impose a sentence

outside the Guidelines range.” Id.

      We have considered various factors under this standard, including (1)

whether overwhelming evidence supports the court’s factual findings, or (2)

whether the record suggests the district court would have imposed a less severe

sentence had it known it had discretion. United States v. Riccardi, 405 F.3d 852,

875-76 (10th Cir. 2005). Neither of these two factors are present in this case.

                                          A.

      Stafford first argues that a jury might have found that he was responsible

for a lesser drug quantity. We disagree. The district court had two sources of

information regarding quantities. One source was the PSR. Stafford exercised


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his right to object to the PSR’s calculation, claiming it over-represented the

amount of drugs for which he was responsible. At the sentencing hearing,

however, Stafford did nothing to cast doubt on the PSR calculation. He simply

argued that the court should rely solely on the amounts found at his residence or

disclosed in a report prepared by the Oklahoma State Bureau of Investigation. He

offered no reason to reject the PSR’s conclusion that he possessed at least an

additional 15 ounces of methamphetamine.

      Responding to Stafford’s objection to the drug quantity calculation, the

government called one of his pseudoephedrine suppliers to testify at the

sentencing hearing. While he subsequently made a legal objection to the judge

relying on her testimony, he did not seriously challenge the substance of her

testimony. Her uncontroverted testimony established that Stafford had access to

precursor chemicals (pseudoephedrine) that could produce at least 72 ounces of

methamphetamine over a six month period ((3 cases x 4 weeks) x 6 months = 72

cases x 1 ounce/case = 72 ounces).

      Stafford offered no rebuttal to this testimony, nor did he offer any reason to

suspect the testimony was biased or unbelievable. In fact, the district court

concluded that the witness’s testimony was “very credible” and determined that

the government’s estimate of only 15 ounces to be extremely conservative based

on the record before it. Stafford’s decision not to “contest these facts is [a]


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strong indication that the district court based the sentencing enhancements on . . .

actual conduct.” Riccardi, 405 F.3d at 876. Accordingly, any error arising from

the court’s determination of drug quantities was harmless beyond a reasonable

doubt.

                                          B.

         Stafford also argues he meets the second harmless error factor discussed in

Small and Dazey: would the district court likely impose a different sentence if it

knew it had more discretion under the Guidelines? The answer is no. Stafford

initially faced a Guidelines range of 151 to 188 months. The court reduced his

sentence from the Guidelines range, however, because he faced a statutory

maximum of 120 months under § 924(a)(2). Anticipating an appeal because of

the uncertain sentencing landscape that existed at the time, the district court

issued an alternative sentence: “my alternate sentence, assuming for the moment

the guidelines are ruled unconstitutional, would be the same as that imposed

under the guidelines for 120 months.” Sent. Tr. 25.

         We have concluded in analyzing alternative sentences issued in light of

Booker that a remand for resentencing is ordinarily unnecessary. “[W]e do not

need to read any tea leaves to determine what the district court would do on

remand.” United States v. Serrano-Dominguez, 406 F.3d 1221, 1223 (10th Cir.

2005) (finding harmless error where court imposed alternative sentence); see also


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United States v. McCleary, No. 04-6316, 2005 WL 2746748 (10th Cir. Oct. 25,

2005) (concluding sentencing error harmless where district court imposed

alternative sentence). The same is true here. The district court’s exercise of its

discretion to impose an alternative sentence clears up any doubt that even under

an advisory Guidelines scheme, it would have imposed the same sentence. 3

                                        ***

      In sum, nothing suggests the district court’s fact finding was reasonably

contestable, or that the court “would exercise [its] now-greater discretion to

reduce [the defendant’s] sentence” on remand. Riccardi, 405 F.3d at 876. Nor do

the court’s remarks at sentencing suggest anything other than the court’s belief

that Stafford’s sentence was appropriate. We are satisfied that although the

sentence may have been imposed in violation of Sixth Amendment standards set

forth in Booker, the error did not violate Stafford’s substantial rights and was

harmless.

                                  III. Conclusion

      We AFFIRM Stafford’s sentence.

                                               Entered for the Court



      3
         The government also argues that by pleading guilty and signing the waiver
of jury trial form, Stafford is precluded from raising a constitutional Booker
argument now. We need not reach this issue because any error committed by the
district court satisfies our harmless error test.

                                         -8-
      Timothy M. Tymkovich
      Circuit Judge




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