                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1




            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                              Argued February 22, 2007
                               Decided March 12, 2007


                                        Before


                           Hon. RICHARD D. CUDAHY, Circuit Judge

                           Hon. KENNETH F. RIPPLE, Circuit Judge

                           Hon. DIANE P. WOOD, Circuit Judge

No. 06-3090

UNITED STATES OF AMERICA,                        Appeal from the United States District
              Plaintiff-Appellee,                Court for the Central District
                                                 of Illinois
      v.
                                                 No. 04-10078-001
JAMES L. GOLDMAN,
            Defendant-Appellant.                 Michael M. Mihm,
                                                 Judge.

                                      ORDER

   James Goldman agreed to plead guilty to conspiring to manufacture
methamphetamine, 21 U.S.C. §§ 841(b)(1)(A), 846. Based on the weight of the drugs
Goldman manufactured, the district court determined that he was subject to a 240-
month mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(viii). On appeal,
Goldman challenges the district court’s calculation of the drug weight, arguing that the
court should not have relied on speculative testimony from the government’s expert
witness. We conclude that the court did not commit clear error in its calculations and
that its credibility determinations were within its discretion. We therefore affirm.
No. 06-3090                                                                      Page 2

                                           I

   Between 2000 and 2003, Goldman taught several others how to produce
methamphetamine and managed an operation manufacturing the drug. Goldman
agreed to plead guilty to conspiring to manufacture methamphetamine, but he
reserved the right to challenge the calculation of the drug weight. During the police
investigation, one of Goldman’s coconspirators admitted that the group manufactured
methamphetamine approximately twice a week for four or five months, producing an
ounce (approximately 28 grams) of the drug each time. Based on this information, the
probation officer estimated in the presentence investigation report that the conspiracy
was accountable for producing 907 grams of methamphetamine. Goldman objected to
this result, arguing that the probation officer’s calculation relied on speculation about
production methods.

    At the sentencing hearing, Dr. Terry Martinez, an expert in toxicology, testified on
Goldman’s behalf that the government’s computation of the drug weight was too high
because it did not account for lower yields resulting from poor technique at
“clandestine laboratories” like Goldman’s. Conducting his own calculations based on
information from the police investigations, Martinez determined that Goldman
manufactured methamphetamine 38 times using pseudoephedrine pills and that the
number of pseudoephedrine pills that Goldman used would yield nine to 17 grams of
a methamphetamine mixture each time. Martinez therefore calculated that Goldman
produced a total of between 270 and 646 grams of the mixture. (Martinez incorrectly
stated that nine grams of methamphetamine mixture manufactured 38 times would
yield 270 grams of the mixture at the low end. Unless he meant that there would be
some loss in the process, however, 38 batches of nine grams each amounts to 342
grams. This discrepancy does not affect the final sentencing calculation, however.
Either way, the mixture contained more than 50 grams of actual methamphetamine,
which is the trigger point for the statutory minimum sentence and the applicable base
offense level in the guidelines. See 21 U.S.C. § 841(b)(viii); U.S.S.G. § 2D1.1(c)(4).)
Martinez also testified that he could not be sure how diluted the methamphetamine
was in the actual mixtures that Goldman produced, but that mixtures produced at
clandestine laboratories have been found to be 30 to 92% pure. His ultimate conclusion
was that Goldman produced a minimum of 270 grams of a mixture that consisted of
30% methamphetamine. This, he said, resulted in 87 grams of actual
methamphetamine. (Again, it seems that the number should be 81 grams; this too
makes no difference to the outcome here.)

   The government’s forensic chemist testified that Martinez’s calculations were based
on an estimate of the lowest possible yield of methamphetamine from the pills that
Goldman used. He suggested that the calculation of the weight of the
methamphetamine was higher in the presentence report because the government
assumed that the final mixture of methamphetamine was 100% pure. The expert also
testified that Goldman probably produced much more methamphetamine than either
No. 06-3090                                                                      Page 3

Martinez or the presentence report calculated because both calculations were based on
production from one location, but Goldman was in fact producing the drug at two
locations. The expert therefore calculated that Goldman was responsible for producing
more than 1,600 grams of a mixture containing methamphetamine.

    Based on both of the experts’ testimony, the district court denied Goldman’s
objection to the computation of the drug weight. The court found that the evidence
established that Goldman produced a substance containing more than 500 grams of a
mixture containing methamphetamine. In the alternative, the court ruled that even
accepting Martinez’s figures, Goldman had produced more than 50 grams of pure
methamphetamine. Using this drug weight, the court calculated a guidelines range of
262 to 327 months’ imprisonment. The court also determined that Goldman’s sentence
was controlled by 21 U.S.C. § 841(b)(1)(A)(viii), which mandates a 20-year minimum
sentence when the defendant manufactured 50 or more grams of methamphetamine
or 500 or more grams of a substance containing methamphetamine and continued the
conspiracy after being arrested for an earlier drug offense. The court sentenced
Goldman to 224 months’ imprisonment (38 months below the guidelines range, and 16
months below the mandatory minimum) to account for time he had already served in
state prison. (We see no authority here for the court to reduce the sentence below the
mandatory minimum, see United States v. Simpson, 337 F.3d 905, 909 (7th Cir. 2003),
but the government did not object in the district court and did not cross-appeal this
issue, see United States v. Leahy, 464 F.3d 773, 790 (7th Cir. 2006). We therefore
cannot disturb the sentence in a way that favors the government. See El Paso Natural
Gas Co. v. Neztsosie, 526 U.S. 479-82 (1999); United States v. Rivera, 411 F.3d 864, 867
(7th Cir. 2005).)

                                          II

    Goldman argues on appeal that the district court erred by relying on unsupported
expert testimony when it calculated the drug weight. He contends that the testimony
of the government’s forensic chemist was unsupported because the government failed
to measure the actual purity of the substance that Goldman manufactured. Aside from
a brief comment by counsel at oral argument, however, he has not explained why a
properly-calculated weight would affect his sentence.

   We review a challenge to the district court’s calculation of drug weight for
sentencing purposes for clear error; we will not overturn its finding unless we firmly
believe the court made a mistake. United States v. Romero, 469 F.3d 1139, 1147 (7th
Cir. 2006). The court’s factual findings must be based on reliable evidence, not
speculation, and they must be supported by a preponderance of that evidence. Id. at
1146. The court may estimate the drug weight by relying on information in the
presentence report and witness testimony. Id. at 1147; cf. United States v. Noble, 246
F.3d 946, 952 (7th Cir. 2001).
No. 06-3090                                                                      Page 4

    The government urges, correctly, that the testimony of its own expert is irrelevant
at this point to the issue before us. While Martinez testified that he did not know the
exact quantity of methamphetamine in the mixture that Goldman manufactured, he
was able to estimate a range based on information in the police investigations and a
study from the Drug Enforcement Administration that reported drug yields in
clandestine laboratories. Martinez himself imputed to Goldman at least 81 grams of
actual methamphetamine based on his calculation that Goldman produced more than
270 grams of a mixture containing at least 30% actual methamphetamine. That is
enough by itself to dispose of Goldman’s appeal.

    We add that the government devoted most of its brief to proposing an alternate
method for calculating the guidelines range. Under a 2003 amendment to the
guidelines, the court now need only consult “Drug Equivalency Tables” to decide how
much methamphetamine resulted from a given amount of pseudoephedrine. See
U.S.S.G., App. C, Amendment 611; U.S.S.G. § 2D1.1 cmt. 10. If the district court here
had used the equivalency tables, it would have arrived at the same base offense level
for Goldman, even without relying on the experts’ testimony. We note, however, that
this table applies only to guidelines calculations, not to the determination of amounts
that trigger statutory minima. In this case, therefore, it was still necessary for the
court to compute the actual amounts of the mixture or the pure drug to determine the
statutory minimum sentence.

   Because the district court’s calculation of the drug weight was supported by credible
expert testimony, we AFFIRM the sentence.
