                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 February 6, 2009
                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                 No. 07-8078
                                                (D.C. No. 06-CR-173-CAB)
    ROCKY R. GALLEGOS,                                  (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BALDOCK, BRORBY, and EBEL, Circuit Judges.



         Defendant-Appellant Rocky R. Gallegos pleaded guilty to one count of

conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C.

§§ 846 and 841(a)(1), (b)(1)(B), and one count of use of a firearm during and in

relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). The district court

sentenced him to incarceration of 172 months on the first count, to be followed



*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
consecutively by a sentence of 84 months on the second count, to be followed by

a period of supervised release. Mr. Gallegos now appeals his sentence, arguing

that the district court improperly failed to make particularized findings tying him

to the relevant conduct used to set his base offense level under the advisory

United States Sentencing Guidelines. We affirm.

                                 BACKGROUND

      An indictment charged Mr. Gallegos with three counts: Count 1, conspiracy

to possess with intent to distribute, more than 50 grams of methamphetamine, in

violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B); Count 2, using a firearm

during and in relation to a federal drug trafficking offense, in violation of

18 U.S.C. § 924(c)(1)(A); and Count 3, being a felon in possession of a firearm,

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He entered into a plea

agreement with the Government in which he agreed to plead guilty to the first two

counts, and the Government agreed to dismiss the felon-in-possession charge.

      The plea agreement provided that Mr. Gallegos’s relevant conduct for

purposes of calculating the drug quantity to be attributed to him involved at least

200 grams but less than 350 grams of methamphetamine. Mr. Gallegos also

agreed to sentencing enhancements of two levels each for the presence of a

vulnerable victim under United States Sentencing Guidelines Manual (“U.S.S.G.”)

§ 3A1.1(b)(1); restraint of a victim under § 3A1.3; and an aggravating role in the

offense under § 3B1.1(c).

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      A presentence report (“PSR”) was prepared. No objections to the PSR

were submitted. However, at the sentencing hearing, after the government

reviewed the terms of the plea agreement and the sentencing information

contained in the PSR, Mr. Gallegos advised the court that he wished to withdraw

his guilty plea because he objected to the amount of drugs and to “some of the

upward departures.” R., Vol. IV, Tr. at 6. The court withdrew Mr. Gallegos’s

guilty plea and set a trial date.

      After Mr. Gallegos’s aborted sentencing hearing, but prior to his trial date,

Mr. Gallegos signed an identical plea agreement which contained the same

stipulations as the first plea agreement. At Mr. Gallegos’s second change of plea

and sentencing hearing, the government again reviewed each of the enhancements

and stipulations, including the relevant conduct amount of at least 200 grams but

less than 350 grams of methamphetamine. Mr. Gallegos acknowledged personally

trafficking only about 70 grams of methamphetamine, but did not specifically

contest that his jointly undertaken criminal activity involved at least 200 grams of

methamphetamine.

      The Base Offense Level for a violation of 21 U.S.C. § 841(a)(1) involving

at least 200 grams of methamphetamine is 28. See U.S.S.G. § 2D1.1(c)(6) (2006).

Given the stipulated adjustments and an adjustment for acceptance of

responsibility, the PSR calculated Mr. Gallegos’s Total Offense Level at 31. He

had nineteen criminal history points, establishing a Criminal History Category of

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VI. This resulted in an advisory Sentencing Guideline range of 188 to 235

months’ imprisonment on Count 1. By statute, a sentence on Count 2 of not less

than seven years (84 months), consecutive to the sentence on Count 1, was

required. 18 U.S.C. § 924(c)(1)(A)(ii); U.S.S.G. § 5C1.1(f) (2006).

       At the conclusion of the hearing, the district court, after considering the

sentencing factors described in 18 U.S.C. § 3553, sentenced Mr. Gallegos to a

term of imprisonment of 172 months on Count 1 and a consecutive 84 months on

Count 2. In so doing, the court varied downward 16 months on Count 1 from the

low end of the Guidelines range.

                                     ANALYSIS

       We appointed counsel for Mr. Gallegos, who filed a brief on his behalf

raising a single issue:

       Whether the trial court must make particularized findings tying the
       defendant to the relevant conduct used to set his base offense level
       beyond what he has admitted and did the court so make?

Aplt. Br. at 2. 1

       This procedural challenge to the district court’s sentencing decision was not

raised at sentencing. Accordingly, we review for plain error. United States v.



1
      Mr. Gallegos also filed a pro se brief in which he attempted to raise a
number of issues. Since he was represented by counsel at the time, and has
continuously been represented by counsel during the course of this appeal, we
will not consider his pro se brief. United States v. Guadalupe, 979 F.2d 790, 795
(10th Cir. 1992).

                                          -4-
Mendoza, 543 F.3d 1186, 1190 (10th Cir. 2008). Plain error is “(1) error, (2) that

is plain, (3) which affects substantial rights, and (4) which seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Romero, 491 F.3d 1173, 1178 (10th Cir.), cert. denied, 128 S. Ct. 319 (2007).

“For an error to have affected substantial rights . . . [i]t must have affected the

outcome of the district court proceedings.” Id. at 1179 (quotation omitted).

      “Section 1B1.3 of the Sentencing Guidelines provides that a defendant’s

base level offense will be based in part on relevant conduct, which goes beyond

simply the conduct for which the defendant was convicted.” United States v.

Green, 175 F.3d 822, 837 (10th Cir. 1999). In the case of a conspiracy, a

defendant is accountable for all reasonably foreseeable acts and omissions of others

within the scope of his agreement. Id.; U.S.S.G. § 1B1.3 cmt. n.2. At sentencing,

a district court must make particularized findings as to (1) the scope of the

criminal activity the defendant agreed to undertake regarding the conspiracy and

(2) the relevant conduct reasonably foreseeable to the defendant. United States v.

Sells, 477 F.3d 1226, 1242 (10th Cir. 2007).

      After reviewing the record, we conclude that even if there was error, it did

not rise to the level of plain error because it did not affect Mr. Gallegos’s

substantial rights. The district court implicitly made the findings required by

Sells by relying on the presentence report and the plea agreement. Mr. Gallegos

stipulated in his plea agreement that his relevant conduct involved at least 200

                                          -5-
grams but less than 350 grams of methamphetamine. He even notes in his brief

that, “[T]he court had before it sufficient evidence to make a finding of between

200 and 350 grams [of methamphetamine]. . . .” Aplt. Br. at 18.

      The judgment of the district court is therefore AFFIRMED.


                                                   Entered for the Court



                                                   Wade Brorby
                                                   Circuit Judge




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