                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                      UNITED STATES COURT OF APPEALS                   July 8, 2008
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 07-8031
 v.                                             (D.C. No. 06-CR-178-02-CAB)
                                                    (District of Wyoming)
 HARRY ALLAN STROUP,

          Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before MURPHY, HOLLOWAY, and TYMKOVICH, Circuit Judges. **


                                  I. INTRODUCTION

      On July 19, 2006, a District of Wyoming grand jury returned a two count

indictment charging the Defendant-Appellant, Harry Allan Stroup, and his co-

Defendant, Gabrial Lobato, with conspiring to possess with intent to distribute



      *
        This order and judgment is not binding precedent, except under the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.
      **
        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.
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.

After Mr. Stroup pled not guilty on August 10, 2006, a jury trial was set for

January 9, 2007. However, on January 5, 2007, Mr. Stroup agreed to plead guilty

pursuant to a plea agreement. In that plea agreement, Mr. Stroup pled guilty to

possession with the intent to distribute more than fifty grams but less than 200

grams of methamphetamine. During the January 5 change of plea hearing, the

district court ordered the Probation Office to prepare a Pre-Sentence Investigation

Report (“PSR”). The PSR determined that the amount of methamphetamine

attributable to Mr. Stroup was 507 grams. The district court held an evidentiary

hearing on April 9, 2007 to establish the relevant conduct and drug amount for

sentencing.

      On April 13, 2007, the district court found that the Defendant was

responsible for 455.5 grams of methamphetamine warranting a base offense level

of 30. Mr. Stroup was granted a three level reduction for acceptance of

responsibility, thereby resulting in a base offense level of 27. With a base offense

level of 27 and a criminal history category IV, the district court sentenced Mr.

Stroup to 110 months’ imprisonment, five years’ supervised release, a $100

special assessment, and a $500 fine. The judgment was filed on April 17, and the

Defendant’s notice of appeal was filed one day later.

                               II. BACKGROUND

      On January 5, 2007, the district court held a change of plea hearing to

                                         -2-
allow Mr. Stroup to file a guilty plea pursuant to a plea agreement. R.3 at 1. At

the conclusion of this hearing, the district court ordered the preparation of a PSR.

R.3 at 14. Pursuant to the plea agreement, Mr. Stroup admitted conspiring to

possess with the intent to distribute more than fifty grams but less than 200 grams

of methamphetamine. However, the PSR concluded that Mr. Stroup was

responsible for roughly 507 grams of methamphetamine in the course of the

conspiracy.

      On April 5, 2007, after reviewing all the evidence before it – including both

the plea agreement and the PSR, the district court concluded that the stipulated

drug quantity in the plea agreement (more than fifty grams but less than 200

grams) was too low. R.4 at 2-5. The government explained to the district court

that this amount was the most “readily provable” amount. Specifically, the

government stated that this calculation was based on statements made by Laurie

Gausvik claiming to have sold a total of five ounces of methamphetamine to Mr.

Stroup at regular intervals over the course of their interaction. 1

      On April 9, 2007, the parties appeared at the district court for the

evidentiary hearing on the proper drug quantity. R.7 at 1. The final sentencing

hearing, where Mr. Stroup’s sentence was imposed, occurred on April 13, 2007

and the court found the drug quantity to be 455.5 grams. R.6 at 1.

      An examination of how the PSR arrived at the 507 gram amount is

      1
          Five ounces of methamphetamine is approximately 142 grams.

                                           -3-
necessary. The quantity in the PSR was based on investigative reports, written

statements by witnesses, and discussions with Wyoming Division of Criminal

Investigation Special Agent Ryan Mullholland. First, the PSR referenced the

regular transactions between Ms. Gausvik and the Defendant that provided the

foundation for the plea agreement. However, after further examination and

consideration of statements made by Cory Anderson (one of Ms. Gausvik’s

distributors who routinely dealt with Mr. Stroup), the Probation Office found that

the total amount involved in these regular transactions was twelve ounces rather

than five. Twelve ounces of methamphetamine is approximately 340 grams.

Also, the PSR stated that after the regular transactions between Ms. Gausvik and

the Defendant-Appellant had ended, Ms. Gausvik provided Mr. Stroup with

another four ounces of methamphetamine. Four ounces is approximately 113

grams. Thus, the PSR calculated the total amount of methamphetamine involved

in the Gausvik-Stroup transactions to be approximately 453 grams.

      Second, the PSR considered Mr. Stroup’s conduct with Tim Maddelein.

The PSR attributed 37 grams to Mr. Stroup based on statements to law

enforcement that Mr. Maddelein took money from Mr. Stroup to purchase

methamphetamine from Fort Collins, Colorado. Third, Sheila Jongsma told

officers that on five or six occasions, she had provided Mr. Stroup with three and

a half grams of methamphetamine. The Jongsma-Stroup transactions constitute

approximately 17 grams. By totaling these three categories (Gausvik/Anderson,

                                        -4-
Maddelein and Jongsma) of methamphetamine transactions, the Probation Office

arrived at a total of 507 grams. The PSR recommended a base offense level of

29, after considering a three level reduction for acceptance of responsibility,

whereas the plea agreement recommended a base offense level of 23. The

Guidelines range for a base offense level of 29 and a criminal history category IV

is 121-151 months whereas a base offense level of 23 advises a range of 70-87

months.

      A number of individuals testified at the April 9, 2007 sentencing hearing.

The government presented five witness: Cory Anderson, Laurie Gausvik, Tim

Maddelein, Sheila Jongsma, and Special Agent Ryan Mullholland of the

Wyoming Division of Criminal Investigation. The Defense called two witnesses:

Co-Defendant Gabrial Lobato and Jessica Crumrine.

      The government first called Mr. Anderson. Mr. Anderson sold

methamphetamine for Laurie Gausvik and was addicted to methamphetamine. In

response to a question from the district court, Mr. Anderson indicated that the

Defendant received two to three ounces of methamphetamine every week from

Laurie Gausvik for a period of approximately six months. Mr. Anderson stated

that he knew the weight of the methamphetamine in these transactions because he

had personally weighed the drugs. When the court asked Mr. Anderson to

provide his best estimate for the total amount provided to Mr. Stroup during the

approximate six month period, Mr. Anderson replied that it was “probably maybe

                                         -5-
two pounds, three, somewhere around there.” R. VII at 11. Mr. Anderson said

that exact estimates were impossible to give because he was using

methamphetamine at the time which made it difficult to keep track of the drug

sales. In response to a question from the court, Mr. Anderson stated that the

Probation Officer’s estimation that the Defendant received one ounce per week

for twelve weeks was low and that Mr. Stroup usually received two ounces.

      The government next called Laurie Gausvik who sold methamphetamine

and was also an addict. In her testimony, Ms. Gausvik stated that in the

beginning of her interaction with Mr. Stroup, she sold him one and sometimes two

ounces at a time. When asked about the total amount sold to Mr. Stroup, Ms.

Gausvik deferred to Mr. Anderson on the best estimate for the aggregate weight,

but did indicate that it was some number of pounds. At the end of Ms. Gausvik’s

testimony, the court attempted to summarize with her the amount that was sold to

Mr. Stroup. Ms. Gausvik said that Mr. Stroup received about an ounce, or a little

more, per week for twelve weeks. Next, Ms. Gausvik stated that after that twelve

week period of sales, Mr. Stroup received roughly three ounces and four or five

grams from her in three different transactions.

      Third, the government called Tim Maddelein who, along with Frank King,

sold methamphetamine received from Mr. Lobato. Mr. Maddelein testified that

Mr. Stroup had purchased meth in various smaller quantities from him. On cross-

examination, Mr. Maddelein stated that Sheila Jongsma sold methamphetamine

                                         -6-
for Mr. King and the Defendant was a purchaser. The court asked for

clarification on the amount sold to Mr. Stroup and Mr. Maddelein stated that at

the most, he sold him on “a dozen or two dozen times...a gram or two...at the

most...” R. VII at 63. Mr. Maddelein stated that he and Mr. King went to Fort

Collins, Colorado to purchase methamphetamine. In his testimony, Mr.

Maddelein stated that he believed Mr. Stroup to have purchased roughly one gram

of methamphetamine stemming from the Fort Collins trip.

      Fourth, the government called Sheila Jongsma who witnessed several

methamphetamine transactions involving Mr. King. Ms. Jongsma stated that she

accompanied Mr. King on trips to sell the Defendant methamphetamine. In her

testimony, Ms. Jongsma indicated that on five or more times, Mr. King would sell

“between one and three-quarter and three and a half” grams to Mr. Stroup.

      Finally, the government called Special Agent Ryan Mulholland of the

Wyoming Division of Criminal Investigation. Agent Mulholland testified that he

assisted Special Agent Loy Young with the investigation into the

methamphetamine sales involving the Defendant; specifically, he interviewed Ms.

Gausvik and Mr. Anderson. Mr. Mulholland stated that he could not provide an

approximate amount of methamphetamine attributable to Mr. Stroup. However,

when asked by the Defense whether the amount stipulated to by the Defense and

the government, five ounces or roughly 140 grams, was generally reasonable, Mr.

Mulholland agreed that five ounces seemed reasonable. Mr. Mulholland also

                                        -7-
stated that while the exact dates referenced by Mr. Anderson and Ms. Gausvik

may not be entirely accurate, the interviews conducted with them revealed

statements that corroborate one another in many respects.

      The Defense then presented two witnesses, Gabrial Lobato, the co-

defendant, and Jessica Crumrine. Gabrial Lobato testified that he did not have a

prior relationship with Mr. Stroup and had only seen him at Mr. King’s house.

Mr. Lobato also testified that he engaged in approximately ten drug transactions

with Ms. Gausvik, with one half involving methamphetamine and the other half

involving marijuana. In total, Mr. Lobato stated that he provided Ms. Gausvik

with less than four ounces of methamphetamine. On cross examination, Mr.

Lobato testified that the amount of methamphetamine he pled guilty to

trafficking, between five and fifteen kilograms, was incorrect and he only

assumed responsibility to prevent his girlfriend from being indicted.

      Jessica Crumrine then testified for the Defense and stated that she never

saw Mr. Stroup sell methamphetamine. She also stated that Mr. Anderson was

unreliable because he made false statements to law enforcement about her in

exchange for a reduced sentence to charges that he was facing at the time. The

evidentiary hearing concluded after closing argument and the court set the

sentencing hearing for April 13.

      At the sentencing hearing, the court determined that the amount of

methamphetamine attributable to the Defendant was 455.5 grams. This amount

                                        -8-
resulted in a base offense level of 30. U.S.S.G. § 2D1.1(c)(5). The three level

reduction for acceptance of responsibility resulted in a base offense level of 27.

Mr Stroup had a criminal history category of IV. The guidelines range for Mr.

Stroup was 100-125 months and the court imposed an incarceration term of 110

months. On appeal, Mr. Stroup argues that the district court committed clear

error in calculating the quantity of methamphetamine involved.

                                 III. DISCUSSION

A. Standard of Review

      This court reviews a district court’s drug quantity calculation for clear

error. United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2007); United

States v. Ryan, 236 F.3d 1268, 1273 (10th Cir. 2001). The district court’s

determination will be reversed “only if the district court’s finding was without

factual support in the record or we are left with the definite and firm conviction

that a mistake has been made.” United States v. Cernobyl, 255 F.3d 1215, 1221

(10th Cir. 2001) (citing Ryan, 236 F.3d at 1273) (quotations omitted).

      Witness credibility is often at issue in sentencing hearings. See United

States v. Nieto, 60 F.3d 1464, 1469-70 (10th Cir. 1995). The well settled rule in

this circuit is that we defer to the district court’s evaluation of the credibility of

witness testimony presented. United States v. Browning, 61 F.3d 752, 754 (10th

Cir. 1995); Nieto, 60 F.3d at 1469-70; United States v. Cook, 949 F.2d 289, 296

(10th Cir.1991).

                                           -9-
B. Standard of Proof

      Drug quantity determinations must be supported by a preponderance of the

evidence and must contain “minimum indicia of reliability.” United States v.

Cernobyl, 255 F.3d 1215, 1221 (10th Cir. 2001). When a district court

determines drug quantity, it is acceptable for estimates to be used in calculating

the amount, provided that the estimation is based on information containing

sufficient indicia of reliability. United States v. Ruiz-Castro, 92 F.3d 1519, 1534

(10th Cir. 1996); Browning, 61 F.3d at 754.

C. Defendant Stroup’s Appellate Contentions

      Defendant-Appellant Stroup argues on appeal that his sentence should be

vacated and that his case should be remanded for re-sentencing; that factually and

legally, he had presented compelling grounds that the most reasonable sentence

would be one attributing to him that quantity of methamphetamine stipulated to

by him and the government in the plea agreement – “at least 50 grams but less

than 200 grams of methamphetamine.” Appellant’s Opening Brief at 10. Mr.

Stroup argues that it was clear error that he was sentenced on a finding that his

relevant conduct included 455.5 grams. R.6 at 2; Id. at 10.

      The stipulated amount of less than 200 grams was consistent with both the

government and the lead investigator in the case, Young, following review of

witness statements and interviews. It was also consistent with defendant’s

admissions and the co-defendant’s testimony. Defendant-Appellant responds to

                                         -10-
the government and the PSR, objecting to the government’s argument for the

larger quantities. Appellant’s Opening Brief at 11-12. 2

      In the instant case, the Defendant and the government entered into a plea

agreement stipulating that Mr. Stroup was responsible for more than fifty grams

but less than 200 grams of methamphetamine. R. 2, #72 at 5. The court requested

a PSR to be prepared and the Probation Office determined that Mr. Stroup was

responsible for over 500 grams of methamphetamine. This discrepancy led to the

court to hold an evidentiary hearing on drug weight.

      As noted earlier, the evidentiary hearing involved testimony from several

individuals who participated in and witnessed the distribution of

methamphetamine to and from Mr. Stroup. Also, Special Agent Mulholland of

the Wyoming Criminal Investigation Division personally interviewed some of the

individuals and aided in the investigation and was thus familiar with the

circumstances of the instant conduct. The district court also heard testimony

attacking the credibility of important governmental witnesses. At the conclusion

of the evidentiary hearing, the court was left to properly discern the amount of

methamphetamine attributable to Mr. Stroup.

      As this court has stated in Cook, Nieto, and Browning, a district court

determines the degree of credibility for witness testimony. In the instant case, the

      2
        After both parties fully briefed the issues, Mr. Stroup wrote a letter to the
court expressing some new arguments and reiterating points in his brief. We have
considered that letter and find it to be of no impact to the issues on appeal.

                                        -11-
court found Mr. Anderson to be very reliable and Ms. Gausvik to be reliable as

well. Defense counsel elicited testimony from Ms. Crumrine and Mr. Lobato in

an attempt to cast doubt on the statements made by Mr. Anderson and Ms.

Gausvik. Mr. Lobato’s testimony not only directly contradicted the testimony of

two other witnesses, but he also in essence testified that he lied under oath during

his sentencing hearing. The court ultimately found Mr. Lobato’s testimony to be

unreliable. This court cannot evaluate witness credibility and we therefore cannot

quarrel with the district court’s judgment in marshaling witness testimony. The

government argues, Brief of Appellee at 5, n.4, and we agree, that the issue is

whether the sentencing court committed clear error when it rejected the plea

agreement and found the Defendant’s relevant conduct involved 455.5 grams of

methamphetamine.

      We must examine the record to ensure that the district court’s

determinations have factual support and are based on a minimum degree of

reliability. Here, during the evidentiary hearing, Mr. Anderson stated that he had

three previous interviews with Wyoming law enforcement officials regarding

methamphetamine sales between Ms. Gausvik, whom he was helping, and Mr.

Stroup. Mr. Anderson related that he had a better memory of the amounts and

numbers of transactions at the present time rather than at the time of the previous

interviews due to his heavy usage of methamphetamine. Ms. Gausvik stated that

while she procured the methamphetamine, Mr. Anderson took care of packaging,

                                         -12-
weighing, and delivering the drugs to Mr. Stroup and therefore he had a better

notion of the amount ultimately sold to Mr. Stroup. Both of these individuals

(Mr. Anderson and Ms. Gausvik) indicated that Mr. Stroup needed

methamphetamine for his own personal use and for sales to other individuals.

      The testimony relied upon by the district court contained a sufficient basis

for reliability. The testimony relied upon was not extremely vague nor was it

contradictory. See Browning, 61 F.3d at 755 n.2. Mr. Anderson provided specific

weights and estimated the number of transactions with Mr. Stroup. Mr. Anderson

admitted being the person who took care of weighing and delivering the

methamphetamine to Mr. Stroup for Ms. Gausvik. Mr. Anderson’s testimony was

consistent with and corroborated Ms. Gausvik’s testimony. Similarly, other

witnesses gave reasons for reliability of the judge’s findings by providing detailed

personal accounts of the various transactions. These details include the frequency

of the transactions and the amounts involved. Mr. Maddelein testified that he

viewed the transactions for methamphetamine with Mr. Stroup and had personal

knowledge of the weights. Likewise, Ms. Jongsma testified that she delivered

methamphetamine to Mr. Stroup and on occasion used the drug with him. It is

also pertinent that during the course of the evidentiary hearing, as counsel would

question the witnesses, the court would ask clarifying questions or request details

of the conduct described in the testimony. Thus, the court participated in

obtaining an accurate calculation of the amount of methamphetamine at issue.

                                        -13-
      In the end, the district court determined that the drug quantity involved

amounted to 455.5 grams. The district court could use estimates in coming to the

final drug quantity. Ruiz-Castro, 92 F.3d at 1534. It is proper for a district court

to arrive at a drug quantity based on estimations made by witnesses so long as

these amounts contain a basis for reliance on them. Cernobyl, 255 F.3d at 1221.

We are satisfied that there is adequate record support to justify the finding that

Mr. Stroup was responsible for 455.5 grams of methamphetamine. The district

court’s determination of the drug quantity at issue was not clearly erroneous.

      Defendant-Appellant also develops the contention that the district court

should have abided by the stipulated amount in the plea agreement and sentenced

Mr. Stroup to a corresponding prison term. The government contends that the

plea agreement was rejected by the district court. The court decided to hold an

evidentiary hearing because the PSR and the plea agreement were “...getting to a

different quantity, and if that’s the case, I guess it is up to the Court to make a

determination and I must decide, then, who is lying and who isn’t.” R.4 at 7.

      These statements by the court indicate a lack of certainty with regard to the

accuracy of the drug quantity contained in the PSR and plea agreement. The

court had the authority to reject the stipulated drug quantity in the plea agreement

and hold an evidentiary hearing, in order to determine the proper drug quantity.

See United States v. Rutter, 897 F.2d 1558, 1564 (10th Cir. 1990).

      In the current case, the court followed the standard procedure for

                                          -14-
determining relevant conduct. The Defendant entered into a plea agreement with

the government and the Probation Office prepared a PSR as is required under Fed.

R. Crim. Proc. 32(c)(1)(a). The PSR found the relevant conduct to involve a

higher drug amount than stipulated to by the Defendant and the government in the

plea agreement. The Defendant filed an objection to the PSR. To resolve the

objection and determine the relevant conduct and drug quantity, the sentencing

court held an evidentiary hearing in compliance with Fed. R. Crim. Proc.

32(i)(3)(B). See United States v. Collins, 2008 WL 515026, *5 (10th Cir. 2008)

(“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.”).

      In United States v. Rutter, 897 F.2d 1558, 1564 (10th Cir. 1990), 3 this court

held that the sentencing court is not bound by the stipulated facts and may, in

addition to the plea agreement, consult the PSR in order to determine the relevant

conduct. 4 In the instant case, during the April 5, 2007 hearing the court adjourned

      3
         United States v. Rutter was decided prior to United States v. Booker.
However, Booker does not impact the holding of Rutter regarding a sentencing
court’s consideration of relevant conduct by using the PSR and the plea
agreement.
      4
       In Rutter, there was a plea agreement in force. Rutter, 897 F.2d at 1564.
The plea agreement in the instant case is not in the record; however, at the April
13, 2007 sentencing hearing, the government stated that “...in the plea agreement
                                                                          (continued...)

                                         -15-
in order to hold an evidentiary hearing with witnesses to provide testimony.

Pursuant to Rutter, the court had the authority to question the stipulated amount

and hold an evidentiary hearing in order to ensure that the drug quantity was

supported by testimony.

      We find that the sentencing court did not err by holding an evidentiary

hearing and finding a drug quantity above the amount stipulated to in the plea

agreement. In sum, we note that Mr. Anderson testified that Mr. Stroup received

an ounce or more per week for over twelve weeks from Ms. Gausvik. R.7 at 28.

Ms. Gausvik corroborated this testimony, R.7 at 52, and also stated that after that

twelve week period of sales, Mr. Stroup received an additional three ounces and

four or five grams from her. R.7 at 40, 53. Mr. Maddelein testified that at the

most, he sold him on “a dozen or two dozen times...a gram or two...at the most...”


      4
          (...continued)
the defendant agreed at the time that he signed the plea agreement that the Court
was not bound by the actual facts – or the actual stipulations in the plea
agreement...” R.6 at 6. In Rutter, we stated that a sentencing court

      ... should consider the stipulated facts carefully, “[t]he court is not
      bound by the stipulation, but may with the aid of the presentence
      report, determine the facts relevant to sentencing.” [U.S.S.G.] §
      6B1.4(d); United States v. Forbes, 888 F.2d 752, 754 (11th
      Cir.1989). Second, the terms of this plea agreement... acknowledged
      that (1) the stipulations were not binding upon the court, and (2) the
      court retained the power to determine relevant facts. Third, at the
      time the district court accepts a plea agreement, all of the facts are
      not known to it; the presentence investigation and resulting report
      allow the court to exercise sentencing authority meaningfully in light
      of relevant facts. Rutter, 897 F.2d at 1564 (footnote omitted).

                                        -16-
R.7 at 63. Finally, Ms. Jongsma testified that on five or six occasions, she would

deliver between one and three-quarter and three and a half grams of

methamphetamine to Mr. Stroup. R.7 at 73-74, 75-76. Based on the foregoing

testimony, the court did not commit clear error by finding that Mr. Stroup was

responsible for 455.5 grams of methamphetamine.

                              IV. CONCLUSION

      Accordingly, we AFFIRM the drug quantity calculation and the resulting

sentence.

      IT IS SO ORDERED.



                                      Entered for the Court

                                      William J. Holloway, Jr.
                                      Circuit Judge




                                        -17-
