                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                APR 29 2004
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 03-6005
 DONTE ORMOND WARD, a/k/a
 Antwan Damon Wilson, a/k/a Monster,

         Defendant-Appellant.
 --------------------
 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 03-6123
 JASON TODD DAVIS,

         Defendant-Appellant.
 --------------------
 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 03-6145
 MICHAEL GAITHER, also known as                        (D.C. No. CR-01-181-M)
 Mike G.,                                                 (W.D. Oklahoma)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*

       *
        This order and judgment is not binding precedent, except under the doctrines of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
Before EBEL, HOLLOWAY, and BRISCOE, Circuit Judges.


       After a five-week trial, a jury found defendants Donte Ormond Ward, Jason Todd

Davis, and Michael Gaither guilty of numerous drug-related crimes. The district court

sentenced each defendant to multiple concurrent terms of life imprisonment and lesser

terms of imprisonment. Defendants filed separate appeals alleging various errors by the

district court, which we address in this consolidated order and judgment. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                             I.

       The indictment named 12 defendants. Only Ward, Davis, and Gaither went to

trial. Count 1 of the indictment sets forth the overarching conspiracy charge against

them. It alleges that defendants conspired to possess with intent to distribute and to

distribute a mixture or substance containing phencyclidine (PCP), in violation of 21

U.S.C. §§ 841(a)(1), 846. The conspiracy allegedly began on or about January 1998,

continued until about August 3, 2001, and involved one kilogram or more of PCP.2 Ward

was convicted on 6 counts; Davis was convicted on 25 counts; and Gaither was convicted




citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       2
         For some purposes, the distinction between pure PCP and a mixture and
substance containing PCP is significant. In this opinion, however, unless otherwise
stated, we refer to PCP as a mixture and substance containing PCP.

                                             2
on 38 counts.3 All of the defendants were convicted on Count 1, the conspiracy charge.

       Evidence presented by the government at trial established unequivocally that

defendants participated in a conspiracy to distribute PCP in Oklahoma City. Former

members of the conspiracy testified at trial that defendants pooled their money to

purchase PCP in California. Because defendants did not use PCP, “testers” were

employed to ensure the quality of the PCP purchased, and some of the testers testified at

trial. Other members of the conspiracy, frequently females, served as couriers, carrying

the PCP to Oklahoma City by bus or plane. Several couriers testified at trial that they

acted at the behest of defendants, that their travel arrangements were made for them, and

that they were paid for their service either in cash or PCP. Testimony and corroborating



       3
          Count 3 against Davis and Gaither was dismissed prior to trial. The jury
acquitted Davis and Gaither on Count 62. The jury also acquitted Gaither on Count 25.
Ward was convicted of one count of conspiracy to possess with intent to distribute and
distribution of PCP, in violation of 21 U.S.C. § 846, and five counts of possession with
intent to distribute PCP, in violation of 21 U.S.C. § 841(a)(1). Davis was convicted of
one count of conspiracy to possess with intent to distribute and distribution of PCP, in
violation of 21 U.S.C. § 846, three counts of distribution of PCP, in violation of 21
U.S.C. § 841(a)(1), five counts of possession with intent to distribute PCP, in violation of
21 U.S.C. 841(a)(1), seven counts of transportation in aid of racketeering, in violation of
18 U.S.C. § 1952(a)(3), and nine counts of use of a communication facility to facilitate
the distribution of PCP, in violation of 21 U.S.C. § 843(b). Gaither was convicted of one
count of conspiracy to possess with intent to distribute and distribution of PCP, in
violation of 21 U.S.C. § 846, five counts of distribution of PCP, in violation of 21 U.S.C.
§ 841(a)(1), ten counts of possession with intent to distribute PCP, in violation of 21
U.S.C. 841(a)(1), eight counts of transportation in aid of racketeering, in violation of 18
U.S.C. § 1952(a)(3), twelve counts of use of a communication facility to facilitate the
distribution of PCP, in violation of 21 U.S.C. § 843(b), and two counts of attempt to
possess with intent to distribute PCP, in violation of 21 U.S.C. § 846.

                                             3
documentary evidence established that on some occasions members of the conspiracy sent

PCP from California to Oklahoma City via the Postal Service or Federal Express. There

was also evidence that on some occasions money to be used for purchasing PCP was

wired via Western Union from Oklahoma City to members of the conspiracy in

California.

       Other members of the conspiracy, who were street level dealers and users, testified

regarding activities in Oklahoma City. This testimony established that after PCP arrived

in Oklahoma City, it was broken into smaller quantities and sold at a profit. PCP

purchased in California for less than $100 per ounce was generally sold in Oklahoma City

for more than $400 per ounce. Members of the conspiracy sold PCP from residences,

hotel rooms, and other locations. Firearms frequently were kept at those locations.

       Prior to trial, the district court denied Gaither’s motion to exclude certain

fingerprint evidence. At the close of the government’s case, Ward and Gaither moved,

pursuant to Federal Rule of Criminal Procedure 29, for a judgment of acquittal as to

Count 5. Ward moved for a judgment of acquittal as to Count 9. Both counts charged

possession with intent to distribute PCP. The district court denied both motions. Davis

and Gaither objected to submission of the indictment to the jury and to the format of the

verdict forms.4 The district court overruled those objections.


       4
          We note this is not the same Apprendi issue we have raised sua sponte.
Defendants objected “to any amounts of drugs that are listed in the overt acts in the
instructions and [asked] the Court . . . to conform the amounts of PCP to the evidence that

                                              4
       At separate sentencing hearings, defendants made numerous objections to the drug

quantity findings of their respective presentence reports (PSRs). Over those objections,

the district court essentially adopted the drug quantity findings of the PSRs. The court

made the following upward adjustments to the base offense level of each defendant: (1) a

four-point enhancement for leading and organizing the conspiracy, pursuant to U.S.S.G.

§ 3B1.1(a); (2) a two-point enhancement for obstruction of justice, pursuant to U.S.S.G.

§ 3C1.1; and (3) a two-point enhancement for possession of a firearm, pursuant to

U.S.S.G. § 2D1.1(b)(1). In addition, the court adjusted Gaither’s offense level upward

two points for reckless endangerment during flight, pursuant to U.S.S.G. § 3C1.2. As a

result, Ward’s adjusted offense level was 44, Davis’ was 46, and Gaither’s was 48.

       Under the Guidelines, any adjusted offense level of 43 or greater dictates a

sentence of life imprisonment. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),

however, the Court held that “[o]ther than the fact of a prior 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.” Therefore, although the

Guidelines required a life sentence, the district court was constrained by the statutory




ha[d] been introduced at trial.” Tr. Vol. XVII at 122. Defense counsel stated, “I think it
is important that the Government conform these numbers to the testimony in this case
simply because the jurors, in the verdict forms, will be asked to find specific amounts for
penalty ranges.” Id. at 123. Counsel further stated that defendants’ “objection under
Apprendi [wa]s that all counts, all evidence, all instructions, all verdict forms should be in
such a way that the jury can find the actual [drug quantity] amount.” Id. at 124-25.

                                              5
maximum sentence applicable to each count. Accordingly, the court sentenced

defendants to what it believed was the maximum statutory sentence on each count of

conviction.

                                             II.

                                  Fingerprint evidence

       Gaither argues that fingerprint evidence admitted at trial was not sufficiently

reliable to satisfy the standard established by Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579 (1993), and Federal Rule of Evidence 702.

       In July 2001, Oklahoma City police learned, via a wiretap, that Davis and Gaither

were planning to ship a parcel containing PCP from California to Oklahoma City. The

government recorded conversations in which Davis and Gaither discussed a particular

address and a tracking number, and police intercepted a package bearing the address and

tracking number discussed in those conversations. Several sets of fingerprints were

“lifted” from the package and from packing materials inside the package. A jar

containing approximately 16 ounces of PCP was found inside the package. In a

subsequent recorded call to the Postal Service’s “1-800” number, Gaither attempted to

locate the package. At trial, Yvonne Hill, a fingerprint examiner with the Oklahoma City

Police Department, identified several of the lifted fingerprints as Gaither’s and one

fingerprint as Davis’.

       In United States v. Turner, 285 F.3d 909, 913-14 (10th Cir. 2002), the defendant


                                             6
made the same argument Gaither makes here. We declined to reach the Daubert issue,

concluding any error in admitting expert fingerprint analysis was harmless due to other

overwhelming evidence against the defendant.5 Similarly, in this case, any error in

admitting Hill’s testimony was harmless. Irrespective of the fingerprint evidence, there

was overwhelming evidence connecting Gaither to the package in question. Moreover,

the jury acquitted Davis and Gaither on the count that charged conduct most closely

related to the fingerprint evidence (Count 62, which alleged that David and Gaither, on or

about July 7, 2001, used the Postal Service to distribute approximately 16 ounces of a

mixture and substance containing PCP).

            Sufficiency of evidence to support verdicts on Counts 5 and 9

       Ward and Gaither argue there was insufficient evidence to support the jury’s

verdicts against them on Count 5. Ward also argued there was insufficient evidence to

support the jury’s verdict against him on Count 9.

       “In reviewing the sufficiency of the evidence to support a jury verdict, this court

must review the record de novo and ask only whether, taking the evidence--both direct



       5
         Circuits that have addressed the admissibility of fingerprint evidence have
determined it is scientifically reliable. See United States v. Crisp, 324 F.3d 261 (4th Cir.
2003) (concluding fingerprint identification satisfied Daubert); United States v.
Hernandez, 299 F.3d 984 (8th Cir. 2002) (same); United States v. Havvard, 260 F.3d 597,
601 (7th Cir. 2001) (same). In Crisp, the court stated that “[w]hile the principles
underlying fingerprint identification have not attained the status of scientific law, they
nonetheless bear the imprimatur of a strong general acceptance, not only in the expert
community, but in the courts as well.” 324 F.3d at 268.

                                             7
and circumstantial, together with reasonable inferences to be drawn therefrom--in the

light most favorable to the government, a reasonable jury could find the defendant guilty

beyond a reasonable doubt." United States v. Guidry, 199 F.3d 1150, 1156 (10th Cir.

1999) (internal quotation omitted). This court does not “second-guess the jury’s

credibility determinations or conclusions concerning the weight of the evidence

presented.” Id.

       In Count 5, Ward, Davis, and Gaither were charged with possessing with intent to

distribute approximately three gallons (roughly 384 ounces or 10.88 kilograms) of PCP in

Oklahoma City, Oklahoma, in or about late 1999, in violation of 21 U.S.C. § 841(a)(1).

To convict on Count 5, the jury was required to find that (1) in or about late 1999

defendants knowingly possessed PCP, and (2) they possessed the PCP with the specific

intent to distribute it. Apprendi requires proof of drug quantity as an essential element of

the crime only for purposes of determining the applicable statutory maximum sentence.

As we explained in United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000), “the

quantity of drugs involved in a violation of § 841 is an essential element of the offense if

that fact exposes the defendant to a heightened maximum sentence under § 841(b)(1)(A)

or (B).”

       There is no question the government presented sufficient evidence at trial to allow

a reasonable jury to conclude that Ward and Gaither, in or about late 1999, knowingly

possessed some quantity of a mixture and substance containing PCP and intended to


                                              8
distribute it. At trial, Donald Hannah testified that he purchased PCP on numerous

occasions in 1999 from a duplex on 39th Street in Oklahoma City. According to Hannah,

Ward frequently was present at the duplex and Hannah made between 10 and 15

purchases of PCP from Ward. Hannah also testified that he purchased PCP from Gaither

during this period. Ward and Gaither argue that Hannah’s testimony was not credible.

They rely heavily on the fact that, at one point during trial, the district court expressed

doubts about Hannah’s credibility. As stated, however, neither this court nor the district

court is permitted to second-guess the jury’s credibility determinations and we must look

at the evidence in the light most favorable to the government.

       It appears that defendants might be attempting to argue there was insufficient

evidence to establish the drug quantity charged in Count 5. However, the jury’s drug

quantity finding of 10 grams or more on Count 5 only supports a maximum sentence of

20 years under § 841(b)(1)(C), the same maximum sentence that would be applicable if

the jury had made no drug quantity finding at all.6

       As to Count 9, the jury found Ward guilty of possessing with intent to distribute

one kilogram or more of PCP in or about the early summer of 2000. Ward argues there is

no evidence to connect him to any PCP transactions during that time and that he could not

have been involved after August 20, 2000, when he was arrested. There is no merit to



       6
          We address in greater detail the verdict forms and drug amount findings by the
jury in the last issue of this order and judgment.

                                               9
Ward’s argument. It is undisputed that at least three witnesses (Nedra Hendricks, Ricky

Williams, and Gerard Brown) testified that Ward was selling PCP from the 39th Street

duplex during the summer of 2000 prior to his arrest. Further, even if the district court

had granted the motions for acquittal, it would have been obliged at sentencing to

consider all relevant conduct for sentencing purposes.

                                       Jury instructions

       Davis and Gaither argue the district court made two errors in instructing the jury.

“We review de novo a timely challenge to a jury instruction to determine whether,

considering the instructions as a whole, the jury was misled.” Guidry, 199 F.3d at 1156

(internal quotation omitted). “We will not reverse unless we have substantial doubt that

the jury was fairly guided.” Id. (internal quotation omitted).

       Defendants argue the court erred in submitting the indictment to the jury as part of

a jury instruction. “It rests within the district court’s discretion to submit the indictment

to the jury.” United States v. Klein, 93 F.3d 698, 703 (10th Cir. 1996). “[A] proper

covering instruction with respect to the indictment goes a long way toward curing any

potential for prejudice created by giving the indictment to the jury.” Id. at 704. “[J]uries

are presumed to follow their instructions.” Zafiro v. United States, 506 U.S. 534, 540

(1993) (internal quotation omitted).

       In this case, the jury properly was instructed that the indictment was not evidence

of guilt and that defendants were presumed to be innocent. Therefore, we conclude the


                                              10
district court did not abuse its discretion in submitting the indictment to the jury. Accord

Klein, 93 F.3d at 704 (concluding any error in reading indictment to jury was harmless

when jury was admonished that indictment was not evidence and there was overwhelming

evidence of defendant’s guilt); United States v. Scott, 37 F.3d 1564, 1576-77 (10th Cir.

1994) (concluding it was not reversible error to read and submit indictment to jury when

jury was instructed before and after reading of indictment that it was not evidence).

       Davis and Gaither also object to the multiple choice format of the verdict forms.

Some of the verdict forms required the jury to find, within one of three ranges, the drug

quantity involved. The special verdict forms obviously were intended to comply with

Apprendi and to track the ranges set forth by § 841(b)(1), although, as we discuss later,

they were not completely successful in this regard. The basis for defendants’ objection to

the verdict forms is not clear but it appears they argue the law requires jurors to

unanimously agree on a precise amount of drugs as opposed to a range. We disagree.

       Under Apprendi, drug quantity must be proven in a § 841 crime only when the

government seeks a sentence in excess of the lowest statutory maximum, which, in cases

involving Schedule I and II drugs, is 20 years. Otherwise, drug quantity need not be

charged and the jury need not make a drug quantity finding. From these principles, it

follows that, to support a greater statutory maximum sentence made applicable by

conviction of a crime involving a greater drug quantity, the jury’s verdict need not reflect

that the jury unanimously agreed about the occurrence of specific drug transactions


                                             11
involving precise drug quantities. Instead, the jury need only find that the charged crime

involved some drug quantity equal to or greater than the amount necessary to support the

sentence imposed. Therefore, in cases like this, verdict forms reflecting the ranges set

forth in § 841(b)(1) are proper. Accord United States v. Smith, 308 F.3d 726, 742 (7th

Cir. 2002); see also Richardson v. United States, 526 U.S. 813, 817 (1999) (stating “a

federal jury need not always decide unanimously which of several possible sets of

underlying brute facts make up a particular element, say, which of several possible means

the defendant used to commit an element of the crime”).

                       Calculation of drug amount at sentencing

       All three defendants argue the district court erred in its drug quantity calculation

for relevant conduct purposes. The district court’s determination of drug quantity is

reviewed for clear error. United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995).

The district court’s determination of drug quantity may be an approximation, and the

government’s burden is only to establish the drug quantity by a preponderance of the

evidence. United States v. Becker, 230 F.3d 1224, 1234-35 (10th Cir. 2000).

Nevertheless, an estimate used to establish the offense level under the Guidelines must

have “some basis of support in the facts of the particular case” and must have “sufficient

indicia of reliability.” United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir. 1995).

“Even after Apprendi, district courts are empowered to make findings to a preponderance

of the evidence in order to determine an appropriate offense level under the Sentencing


                                             12
Guidelines.” United States v. Cernobyl, 255 F.3d 1215, 1220 n.1 (10th Cir. 2001).

       “The Sentencing Guidelines require that all relevant conduct be considered at

sentencing.” United States v. Mendez-Zamora, 296 F.3d 1013, 1020 (10th Cir. 2002)

(citing U.S.S.G. § 1B1.3). “Drug quantities associated with illegal conduct for which a

defendant was not convicted are to be accounted for in sentencing, if they are part of the

same conduct for which the defendant was convicted.” United States v. Washington, 11

F.3d 1510, 1516 (10th Cir. 1993).

       Ward: Ward’s PSR attributed 19.95 kilograms of a mixture and substance

containing PCP to Ward as relevant conduct. The district court adopted the PSR in part

and found Ward was accountable for 16.47 kilograms. Any attribution between 10 and

30 kilograms of a mixture and substance containing PCP would have resulted in a base

offense level of 36. See U.S.S.G. § 2D1.1(c)(2). Ward argues he should have been held

accountable only for 6.93 kilograms, which would have resulted in a base offense level of

34. See U.S.S.G. § 2D1.1(c)(3).

       Ward focuses only on the evidence admitted in support of the drug amount charged

in Count 5 of the indictment. He contends that evidence did not support the court’s drug

quantity calculation. Ward’s approach, which limits the evidence the court may consider,

is not consistent with the Guidelines. U.S.S.G. § 3D1.2 provides: “All counts involving

substantially the same harm shall be grouped together into a single Group. Counts

involve substantially the same harm within the meaning of this rule . . . (d) [w]hen the


                                             13
offense level is determined largely on the basis of . . . the quantity of a substance

involved.”

       Further, Ward has failed to establish the district court committed clear error in its

drug quantity findings. Ward argues there is no evidence that he directly participated in

certain PCP purchases in California, that he transported any PCP, or that he participated

in selling several shipments of PCP that were attributed to him by the district court. In

conspiracy cases, however, “[r]elevant conduct includes reasonably foreseeable acts of

co-conspirators in furtherance of their conspiracy.” Mendez-Zamora, 296 F.3d at 1020

(citing U.S.S.G. § 1B1.3(a)(1)(B)). In this case, it was not clearly erroneous for the

district court to hold Ward responsible for the conduct of his co-conspirators. Ricky

Williams and Gerard Brown, both members of the conspiracy, testified that Ward, Davis,

and Gaither pooled their money to purchase PCP and then split the proceeds from sales.

Further, there is ample evidence that Ward directed the activities of lower echelon

members of the conspiracy. Although Ward questions the credibility of some of the

government’s trial witnesses, credibility determinations are for the district court. See

United States v. McIntyre, 997 F.2d 687, 709 (10th Cir. 1993).

       Davis: Davis’ PSR attributed 18 ounces of powder cocaine, one-half pound of

marijuana, and approximately 48.23 kilograms of a mixture and substance containing

PCP to him as relevant conduct. After conversion of the differing controlled substances

to marijuana equivalency, the PSR attributed 48,337.8 kilograms to Davis. See U.S.S.G.


                                              14
§ 2D1.1, Cmt. n.10 (setting forth drug equivalency table that provides the “means for

combining differing controlled substances to obtain a single offense level” and instructing

that, in cases involving different controlled substances, all drugs should be converted to

marijuana equivalency). The district court reduced the amount of mixture and substance

containing PCP attributable to Davis by approximately 8.14 kilograms, but otherwise

adopted the drug quantity findings of the PSR. In sum, after conversion of the differing

controlled substances to marijuana equivalency, the court attributed approximately

40,192.83 kilograms to Davis. Any attribution of 30,000 kilograms or more of marijuana

equivalence would have resulted in a base level of 38. U.S.S.G. § 2D1.1(c)(1).

Therefore, any error committed by the district court in attributing drugs to Davis is

harmless unless the court’s errors amount to more than 10,192.83 kilograms, marijuana

equivalence.

       On appeal, Davis renews the numerous objections he made at his sentencing

hearing. Of primary importance, however, Davis argues the district court committed clear

error in adopting ¶ 22 of the PSR, which attributed 368 ounces of PCP (approximately

10,432.8 kilograms, marijuana equivalence) to him based on activities of the conspiracy

in late 1997 and early 1998. If adoption of ¶ 22 was clearly erroneous, Davis’ offense

level should be reduced from 38 to 36. On the other hand, if its adoption was not clearly

erroneous, even if Davis would prevail on all of his other arguments regarding the court’s

drug quantity findings, a reduction of Davis’ base offense level would not be warranted.


                                             15
       We conclude the district court’s adoption of ¶ 22 is sufficiently supported by

evidence in the record. According to Agent Farabow’s testimony at Davis’ sentencing

hearing, an informant (Donald Miles) admitted he became a partner in the PCP business

with Davis and Gaither in late 1997. Miles recalled the three pooled their money to

purchase PCP on five occasions, in quantities of 16, 32, 64, and 128 ounces on two

occasions. It is undisputed that Miles’ statements were corroborated in part by the trial

testimony of Tamara Gunter and Latina Grayson. Davis questions the credibility of

Miles, Gunter, and Grayson, but it was not clearly erroneous for the district court to credit

their statements. Davis also notes Miles never testified and statements attributed to Miles

by Agent Farabow were hearsay. However, in determining relevant conduct for

sentencing, the district court’s scope of review is not limited to evidence admitted at trial

or even to evidence that would have been admissible at trial. “No limitation shall be

placed on the information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and consider for

the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.

       Davis also criticizes the district court’s reliance on the testimony of couriers who

could only estimate the amounts of PCP they carried. It is well established that

“[e]stimates are an acceptable method of calculating drug quantities so long as the

information supporting the estimate has a minimum indicia of reliability.” McIntyre, 997

F.2d at 709. Further, Davis fails to address the fact that the estimates were, in many


                                              16
instances, corroborated by his own recorded telephone conversations and by testimony of

mid-level dealers and users who saw members of the conspiracy dividing and selling

quantities of PCP.

       Gaither: Gaither’s PSR attributed 18 ounces of powder cocaine, one-half pound of

marijuana, and approximately 44.60 kilograms of a mixture and substance containing

PCP to him as relevant conduct. After conversion of the differing controlled substances

to marijuana equivalency, the PSR attributed 44,709.03 kilograms to Gaither, which

would have resulted in a base offense level of 38. The district court reduced the amount

of mixture and substance containing PCP by approximately 8.05 kilograms, but otherwise

adopted the drug quantity findings of the PSR. After conversion of the differing

controlled substances, the court attributed approximately 36,652.28 kilograms to Gaither,

which resulted in a base offense level of 38.

       Any attribution of 30,000 kilograms or more of marijuana equivalence to Gaither

would have resulted in a base offense level of 38. See U.S.S.G. § 2D1.1(c)(1).

Therefore, any error in attributing drugs to Davis is harmless unless the errors amount to

more than 6,652.28 kilograms, marijuana equivalence. Gaither makes arguments similar

to those made by Ward and Davis. For reasons stated above, we are not persuaded that

the district court committed any error in making its drug quantity findings.

                       Upward adjustments to base offense levels

       This court reviews the district court’s legal interpretation of the Sentencing


                                             17
Guidelines de novo and its factual findings for clear error. United States v. Gardiner, 931

F.2d 33, 34 (10th Cir. 1991).

       Role in offense. U.S.S.G. § 3B1.1 provides:

               Based on the defendant’s role in the offense, increase the offense
       level as follows:
               (a) If the defendant was an organizer or leader of a criminal activity
       that involved five or more participants or was otherwise extensive, increase
       by 4 levels.
               (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.
               (c) If the defendant was an organizer, leader, manager, or supervisor
       in any criminal activity other than described in (a) or (b), increase by 2
       levels.

“The gravamen of the enhancement is either the exercise of control over other

participants or the organization of others for the purpose of carrying out the crime.”

United States v. Tagore, 158 F.3d 1124, 1131 (10th Cir. 1998). The commentary to

§ 3B1.1(a) lists several factors that a court may consider in determining a defendant’s

status as an organizer or leader, including: the exercise of decision-making authority, the

nature of participation in the commission of the offense, the recruitment of accomplices,

the degree of participation in planning or organizing 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, Cmt. n.4.

       Ward argues the district court committed clear error in finding he was a leader or

organizer of the conspiracy. At trial, however, Gerard Brown testified that he was


                                             18
recruited into the conspiracy by Ward. There was also evidence that Ward arranged and

directed the travel of drug couriers and that lower echelon members of the conspiracy

rented motel rooms and cars at the direction of Ward and on his behalf. Given this

evidence, it was not clearly erroneous for the court to conclude that Ward was a leader or

organizer of the conspiracy.

       Gaither’s argument on this issue is puzzling. He contends that instead of applying

the four-level enhancement under § 3B1.1(a), the court should have applied a two-level

enhancement under § 3B1.1(c). However, subsection (c) is applicable only when the

relevant criminal enterprise involves four or fewer participants and is not otherwise

extensive in scope. In this case, it is clear the conspiracy involved five or more people.

Gaither does not dispute this point. Further, several members of the conspiracy testified

they sold or transported PCP for Gaither or otherwise acted at his direction. Members of

the conspiracy, including Darcus Vann and Lanea Moland, testified they were recruited

by Gaither. In light of this evidence, it was appropriate for the district court to enhance

Gaither’s offense level by four points pursuant to § 3B1.1(a).

       Obstruction of justice enhancement: All three defendants contend the district court

erred in concluding they obstructed justice. U.S.S.G. § 3C1.1(a) provides:

       If (A) the defendant willfully obstructed or impeded, or attempted to
       obstruct or impede, the administration of justice during the course of the
       investigation, prosecution, or sentencing of the instant offense of
       conviction, and (B) the obstructive conduct related to (i) the defendant’s
       offense of conviction and any relevant conduct; or (ii) a closely related
       offense, increase the offense level by 2 levels.

                                             19
The commentary provides a non-exhaustive list of examples of conduct to which this

adjustment applies: “threatening, intimidating, or otherwise influencing a co-defendant,

witness, or juror, directly or indirectly, or attempting to do so.” U.S.S.G. § 3C1.1, Cmt.

n.4.

       In this case, there is undisputed evidence that defendants threatened and attempted

to intimidate several government witnesses. Among those witnesses threatened were

Latina Grayson, Gerard Brown, Nedra Hendricks, and Marion Wright. Defendants

dismiss their statements as mere “angry expressions” that do not “rise to the level” of

obstruction of justice. Defendants also note that, in many instances, they were not in the

position to carry out their threats. However, defendants clearly intended to deter

government witnesses from testifying or to otherwise intimidate and influence them.

Such conduct clearly falls within the scope of § 3C1.1. Further, § 3C1.1 is applicable

when a defendant makes threats in an attempt to influence a witness, regardless of

whether the attempt is successful or regardless of the chances of actually carrying out the

threat. Given all of the evidence presented at defendants’ respective sentencing hearings,

it was not clearly erroneous for the district court to find that defendants attempted to

obstruct justice.

       Finally, we note that Ward and Davis make a unique but frivolous Sixth

Amendment argument. They contend that because Gerard Brown was cooperating with

the government when they threatened him, their Sixth Amendment right to counsel was


                                             20
violated when their statements to him were introduced into evidence. “[T]he Sixth

Amendment renders inadmissible in the prosecution’s case in chief statements

‘deliberately elicited’ from a defendant without an express waiver of the right to counsel.”

Michigan v. Harvey, 494 U.S. 344, 348 (1990). Here, there is no indication that Brown

deliberately elicited the threats and, therefore, defendants’ Sixth Amendment rights were

not violated.

       Possession of firearm: Davis and Gaither argue there was no evidence to support a

two-level enhancement of their offense levels under U.S.S.G. § 2D1.1(b)(1), which

provides: “If a dangerous weapon (including a firearm) was possessed, increase by 2

levels.”

       “Possession of a weapon in connection with a drug trafficking offense is

established if the government proves by a preponderance of the evidence that a temporal

and spacial relation existed between the weapon, the drug trafficking activity, and the

defendant.” See United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998) (internal

quotation omitted). “Once the government establishes that the gun was possessed in

proximity to the drugs or transaction, the burden shifts to the defendant to show it is

clearly improbable that the weapon was related to the offense.” Id. (internal quotation

omitted). The necessary nexus of the weapon, drug trafficking, and defendant may be

established by showing that “the weapon was located nearby the general location where

drugs or drug paraphernalia are stored or where part of the transaction occurred.” Id.


                                             21
(internal quotation omitted). “[W]hen the offense committed is conspiracy, these

proximity conditions are met when the weapon is discovered in a place where the

conspiracy was carried out or furthered.” United States v. Apple, 962 F.2d 335, 338 (4th

Cir. 1992). The sentencing court may “attribute to a defendant weapons possessed by his

codefendants if the possession of weapons was known to the defendant or reasonably

foreseeable by him.” United States v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991).

       In this case, numerous witnesses testified that they saw firearms at locations used

by defendants for packaging and selling drugs. Additionally, at the sentencing hearings,

Agent Farabow testified that, according to Miles, Ward, Davis, and Gaither frequently

carried firearms to protect their drugs and drug proceeds. In response to this evidence,

defendants merely assert they never used firearms and they state in conclusory fashion

that they did not possess firearms. Under these circumstances, it was not clearly

erroneous for the district court to find that Davis and Gaither possessed firearms in

connection with the charged conspiracy.

       Reckless endangerment during flight from police: Gaither received a two-point

upward adjustment for reckless endangerment during flight pursuant to U.S.S.G. § 3C1.2.

Gaither contends, as he did in the district court, that a two-level enhancement pursuant to

§ 3C1.1 cannot be based on a defendant’s flight from police. On that point, he is correct.

See U.S.S.G. § 3C1.1, Cmt. n.5. But, he has no response to § 3C1.2, which requires such

an enhancement when “the defendant recklessly created a substantial risk of death or


                                             22
serious bodily injury to another person in the course of fleeing from a law enforcement

officer.”

       Further, even if Gaither had made a proper objection to the § 3C1.2 enhancement,

we would not conclude the court committed clear error. See United States v. Conley, 131

F.3d 1387, 1389 (10th Cir. 1997) (stating we review for clear error a district court’s

determination that a defendant’s flight from police constituted reckless endangerment).

While “[n]ot every flight from a crime scene . . . will constitute reckless endangerment

under § 3C1.2,” id. at 1390, the record in this case was adequate to support the district

court’s application of § 3C1.2 to Gaither. For purposes of § 3C1.2,

               “Reckless” refers to a situation in which the defendant was aware of
       the risk created by his conduct and the risk was of such a nature and degree
       that to disregard that risk constituted a gross deviation from the standard of
       care that a reasonable person would exercise in such a situation.

U.S.S.G. § 2A1.4, Cmt. n.1 (referred to in U.S.S.G. § 3C1.2, Cmt. n.2). “The standard of

care envisioned by the Guidelines is that of the reasonable person, not the reasonable

fleeing criminal suspect.” United States v. Brown, 314 F.3d 1216, 1221 (10th Cir. 2003)

(citing Conley, 131 F.3d at 1389). “During flight” is to be “construed broadly,” and the

adjustment “is applicable where the conduct occurs in the course of resisting arrest.”

U.S.S.G. § 3C1.2, Cmt. n.3.

       In this case, an Oklahoma City police officer testified at trial that on May 23, 2001,

he observed a vehicle traveling 63 miles per hour in a 30-mile-per-hour residential zone.

It was later determined that Gaither was driving the vehicle. When the officer activated

                                             23
the emergency lights of his patrol car, Gaither accelerated and ran a red light. Gaither

finally stopped the vehicle, but then fled on foot. The officer caught Gaither and, after a

struggle, was able to handcuff him. Relying on this testimony, the district court found

that Gaither’s flight amounted to reckless endangerment. The court’s finding was not

clearly erroneous. See United States v. Gonzalez, 71 F.3d 819, 836-37 (11th Cir. 1996)

(§ 3C1.2 enhancement justified where defendant operated vehicle, in reverse, at high rate

of speed on residential street); United States v. Velasquez, 67 F.3d 650, 655 (7th Cir.

1995) (holding flight at high rate of speed on residential street was enough to support

enhancement under § 3C1.2).

                               Acceptance of responsibility

       Davis and Gaither argue the district court should have reduced their respective

offense levels two points for acceptance of responsibility because they admitted during

closing arguments at trial that they sold drugs.

       Refusal to grant an adjustment for acceptance of responsibility is a factual question

which we review for clear error. See United States v. Hawley, 93 F.3d 682, 689 (10th

Cir. 1996). “The sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility. For this reason, the determination of the sentencing judge is

entitled to great deference on review.” U.S.S.G. § 3E1.1, Cmt. n. 5. “Because of our

deference to the trial court’s assessment of credibility and the clearly erroneous standard

we apply, the judgment of the district court on this issue is nearly always sustained.”


                                             24
United States v. Whitehead, 912 F.2d 448, 451 (10th Cir. 1990) (affirming district court’s

denial of acceptance of responsibility reduction despite defendant’s guilty plea). It is

defendant’s burden to prove he has accepted responsibility. See United States v.

Spedalieri, 910 F.2d 707, 712 (10th Cir. 1990).

       We agree with the district court that Davis and Gaither failed to meet their burden.

U.S.S.G. § 3E1.1, Cmt. n.2, provides that an adjustment for acceptance of responsibility:

       is not intended to apply to a defendant who puts the government to its
       burden of proof at trial by denying the essential factual elements of guilt, is
       convicted, and only then admits guilt and expresses remorse. Conviction by
       trial, however, does not automatically preclude a defendant from
       consideration for such a reduction. In rare situations a defendant may
       clearly demonstrate an acceptance of responsibility for his criminal
       conduct even though he exercises his constitutional right to a trial. This
       may occur, for example, where a defendant goes to trial to assert and
       preserve issues that do not relate to factual guilt (e.g., to make a
       constitutional challenge to a statute or a challenge to the applicability of a
       statute to his conduct). In each such instance, however, a determination that
       a defendant has accepted responsibility will be based primarily upon pre-
       trial statements and conduct.

(Emphasis added.) Because Davis and Gaither put the government to its burden of proof

at trial, we must determine whether this is one of the “rare situations” in which a

defendant clearly has demonstrated an acceptance of responsibility despite the fact that he

went to trial. Defendants admitted at trial only what they were forced to concede by the

extensive evidence against them, and no more. There is no indication in the record that

they made forthright pretrial admissions of their guilt or that they ever made a full

admission of their guilt. Even on appeal, Davis and Gaither contest their responsibility


                                             25
for drug amounts attributable to them. It is their right to do so. However, given their

consistent denials of responsibility, it was not clearly erroneous for the district court to

refuse to grant them a two-point adjustment for acceptance of responsibility. Accord

United States v. Johnston, 353 F.3d 617, 627 (8th Cir. 2003) (holding it was not clearly

erroneous for district court to deny acceptance of responsibility adjustment when

defendant admitted to distributing methamphetamine but went to trial to dispute the

charged quantity); United States v. Maliszewski, 161 F.3d 992, 1024 (6th Cir. 1998)

(holding it was not clearly erroneous for district court to deny acceptance of responsibility

adjustment when defendant “consistently denied responsibility” for drug amounts

attributed to him).

                                        Verdict forms

       At oral arguments in these cases, this court raised sua sponte an apparent Apprendi

violation and ordered the parties to submit supplemental briefs. Our briefing order

described deficiencies in the verdict forms:

       Title 21, Section 841, of the United States Code delineates the maximum
       statutory penalties available for crimes involving phencyclidine (PCP). See
       21 U.S.C. § 841(b)(1). Significantly, the statute distinguishes between
       cases which involve pure PCP and cases like the present cases which
       involve a mixture and substance containing a detectable amount of PCP.
              Section 841(b)(1)(A)(iv) delineates life imprisonment as the maximum
       statutory sentence for crimes involving 1 kilogram or more of a mixture and
       substance containing PCP. Section 841(b)(1)(B)(iv) delineates 40 years as the
       maximum sentence for crimes involving 100 grams or more but less than 1
       kilogram of a mixture and substance containing PCP. This court has held that,
       under Apprendi, sentences imposed pursuant to § 841(b)(1)(A) or (B) must be
       supported by a jury’s drug quantity finding. See United States v. Jones, 235 F.3d

                                               26
       1231, 1236 (10th Cir. 2000).
               Subsections (b)(1)(C) and (D) address drug crimes involving amounts less
       than necessary to support a sentence under subsection (b)(1)(B) and crimes
       involving an undetermined amount. Subsection (b)(1)(C) addresses crimes
       involving Schedule I or II drugs. PCP is a Schedule II drug. See 21 U.S.C. §
       811(a)(1); 21 C.F.R. § 1308.12(e). Under subsection (b)(1)(C), the maximum
       sentence permitted is generally 20 years.
               There is one caveat to the generally applicable maximum statutory
       sentences.7 When a defendant has a prior felony drug conviction, the
       maximum sentences under subsections (b)(1)(B) and (C) are enhanced. In
       such a case, the maximum sentence permitted by paragraph (B) is life
       imprisonment and the maximum sentence permitted by paragraph (C) is 30
       years. Under Apprendi’s own terms, the fact of a prior felony drug
       conviction need not be submitted and proved to a jury.
               In this case, the verdict forms invited the jury, upon reaching a guilty
       verdict, to make drug quantity findings as to certain counts. Specifically, the jury
       was asked to find beyond a reasonable doubt that the amount involved fell within
       one of three ranges: (1) 1 kilogram or more, (2) 10 grams or more but less than 1
       kilogram, or (3) less than 10 grams. The middle range (10 grams to 1 kilogram)
       apparently was intended to reflect the range set forth in § 841(b)(1)(B)(iv). As
       discussed above, however, for a crime involving a mixture and substance
       containing PCP, subsection (b)(1)(B) is only applicable when there is a jury
       finding that the crime involved 100 grams or more. A jury finding that 10 grams
       or more was involved does not support a sentence imposed pursuant to subsection
       (b)(1)(B).
               In sum, the district court imposed sentences on the following counts that are
       not supported by the jury’s drug quantity findings as recorded in the verdict forms:
       (1) as to defendant Donte Ward, Counts 5 and 11; (2) as to defendant Michael
       Gaither, Counts 5, 20, 24, 29, 45, 49, 57, 63, 66 and 70; and (3) as to defendant
       Jason Davis, Counts 5, 17 and 29. It appears that subsection (b)(1)(C) provides the
       applicable statutory maximum sentence for each of these counts. Because Davis
       has a prior felony drug conviction, he is subject to paragraph (C)’s enhanced
       maximum sentence of 30 years.



       7
          There is a second caveat as well. If death or serious bodily injury results from
the use of such substance, the defendant shall be sentenced to a term of imprisonment of
not less than 20 years or more than life. 21 U.S.C. § 841(b)(1)(C). Those circumstances
were not relevant to the present cases and, therefore, not referenced in our briefing order.

                                             27
March 16, 2004, Order at 2-4 (footnote added). After receipt and review of the parties’

supplemental briefs, we remain convinced there has been a violation of Apprendi on the

counts identified. We are left then to address the appropriate remedy.

       Although defendants did not raise the Apprendi issue, “[a] plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.” Fed. R. Crim. P. 52(b). We previously have held that it is plain error to

impose a sentence pursuant to § 841(b)(1)(A) or (B) when the requisite drug quantity is

not found by a jury. See United States v. Price, 265 F.3d 1097, 1108 (10th Cir. 2001)

(concluding a sentence in excess of 20 years, when indictment failed to state quantity and

jury was not instructed to find quantity beyond a reasonable doubt, was plain error).

       Plain error warrants reversal and remand for resentencing only if the error affects

the “substantial rights” of a defendant. See United States v. Lott, 310 F.3d 1231, 1243

(10th Cir. 2002). When an Apprendi error does not affect a defendant’s total length of

imprisonment, the error does not affect the defendant’s substantial rights. Id. at 1241-45

(concluding Apprendi error was plain but that defendant’s substantial rights were not

affected where resentencing still would have resulted in a 125-year term of imprisonment

– the “effective equivalent” of a life sentence). In this case, correcting the Apprendi

errors would have no impact upon defendants’ total terms of imprisonment. Each

defendant received life sentences on counts where there was no Apprendi problem: Ward

on Counts 1 and 9; Davis on Counts 1, 9, and 15; and Gaither on Counts 1 and 27.


                                             28
Further, defendants have had ample opportunity to direct our attention to any actual or

potential detrimental effect of the Apprendi error, but have identified none. Therefore,

we conclude reversal and remand for resentencing is not warranted.

       AFFIRMED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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