                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                   November 1, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                    No. 06-5075
          v.                                         (N.D. Oklahoma)
 ROBERT EUGENE CONNER, JR.,                       (D.C. No. 03-CR -168-P)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, A ND ER SO N and BROR BY, Circuit
Judges.




      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). This cause is

therefore ordered submitted without oral argument.

      Defendant/appellant Robert Eugene Conner w as convicted for knowingly

maintaining a place for the purpose of manufacturing, distributing, or using a


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
controlled substance, in violation of 21 U.S.C. §§ 856(a)(1) and (b)(1). He was

initially sentenced to ninety-seven months’ imprisonment, followed by three years

of supervised release. On direct appeal, we affirmed his conviction but remanded

for resentencing in light of the Supreme Court’s intervening decision in United

States v. Booker, 543 U.S. 220 (2005). United States v. Conner, 152 Fed. Appx.

732, 2005 W L 2697256 (10th Cir. 2005). On resentencing, Conner was again

sentenced to ninety-seven months’ imprisonment, followed by three years of

supervised release. He appeals his sentence again, and we affirm.



                                BACKGROUND

      The original presentence report (“PSR”) prepared by the United States

Probation Office in anticipation of Conner’s sentencing calculated Conner’s base

offense level under the United States Sentencing Commission, Guideline M anual

(“USSG ”) (2003), as follows: it attributed 44.5 grams of a mixture containing

methamphetamine and 8,640 milligrams of pseudoephedrine to Conner. Using the

Drug Quantity Table in USSG §2D1.1, the 44.5 grams of methamphetamine was

the equivalent of 89 kilograms of marijuana and the 8,640 milligrams of

pseudoephedrine was the equivalent of 86 kilograms of marijuana. The PSR

made it clear that, for purposes of calculating the quantity of pseudoephedrine

involved, it only included pills from full packets of pseudoephedrine packages,

not the empty packages that were found in Conner’s house. Based on a total of

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175 kilograms of marijuana equivalent, USSG §2D1.1(c)(7) provided a base

offense level of twenty-six. Two levels were added to Conner’s base offense

level pursuant to USSG §2D1.1(b)(1) for possession of firearms during the

comm ission of the offense. 1 Conner’s total adjusted offense level was

accordingly twenty-eight. W ith a criminal history category II, the Guideline

sentencing range was 87-108 months. As indicated, the court sentenced Conner

to ninety-seven months.

      On appeal, we remanded for resentencing under Booker, after expressing

the following concern about one part of the district court’s drug quantity

calculation:

      W e do pause, however, to note our particular concern with the
      district court’s attribution of 8,640 milligrams of pseudoephedrine to
      M r. Conner. Our review of the record reveals that evidence of this
      quantity was not presented during the trial and the issue w as a
      subject of heated dispute in the sentencing hearing. M oreover, the
      evidence provided by the government at the sentencing hearing did
      not clearly indicate whether the calculation of the quantity of
      pseudoephedrine included the weight of the entire tablets or just the
      pseudoephedrine contained in the tablets.

Conner, 152 Fed. Appx. at 739.

      At the resentencing hearing, the government presented testimony from

Officer Brian Comfort, the case agent for the drug investigation of Conner, who

had testified as to drug quantities in the original sentencing hearing. He testified



      1
      Two firearms and some ammunition were found in Conner’s bedroom
when authorities searched his house.

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that his calculation of 8,640 milligrams of pseudoephedrine was based upon the

fact that the packaging on each full box or bottle of tablets stated that each tablet

contained thirty milligrams of pseudoephedrine. He then multiplied that number

(thirty) times the number of pills found in the full boxes or bottles, resulting in

the determination that the total amount of pure pseudoephedrine was 8,640

milligrams.

      The district court then resentenced Conner to ninety-seven months’

imprisonment, after again attributing 8,640 milligrams of pseudoephedrine to

Conner:

               Paragraph 19 of the presentence report indicates the defendant
      was only held accountable for 8,640 milligrams; that is, 8.6 grams of
      pseudoephedrine. This is comprised of the full bottles of
      pseudoephdrine detailed in paragraph 11 of the presentence report
      . . . . These bottles held a total of 288 pills, each pill containing 30
      milligrams of pseudoephedrine. This adds up to 8,640 milligrams.

            According to the testimony of Officer Comfort, only the
      weight of the actual controlled substance was used in the calculations
      as opposed to the . . . total weight of all the pills.

Tr. of R esentencing Hr’g at 23, R. Vol. III. Additionally, as required by Booker,

the court carefully considered the sentencing factors contained in 18 U.S.C.

§ 3553(a):

      Pursuant to 18 U.S.C. § 3553(a), there are several factors that
      warrant the specific sentence imposed in this case. The court finds a
      significant term of imprisonment, . . . one within the applicable
      guideline range, is appropriate and necessary to punish the defendant
      and protect the public and serve as a deterrent to him and others who
      may be inclined to commit similar offenses.

                                          -4-
             W ithin the applicable guideline range, a sentence in the middle
      of the range is imposed because the guidelines have considered all
      the important sentencing factors surrounding this offense and the
      defendant.

            In this case, a significant term of imprisonment is warranted
      based on several factors.

             First, this offense clearly involved the manufacturing of
      methamphetamine in the defendant’s residence, a factor that makes
      this offense more aggravating than some other forms of drug
      distribution offenses.

             Second, in the defendant’s bedroom there was ammunition
      [and] firearms, one of which was loaded when the offense occurred.

            A sentence within the guidelines is appropriate to avoid
      sentencing disparity between similarly situated defendants.

            Finally, this defendant has never expressed any responsibility
      or remorse for his involvement in this offense, a factor that would
      possibly cause the court to consider some degree of reduction.

            Given the nature of the offense, the maximum length of
      supervised release [is] appropriate to monitor the defendant’s
      conduct.

Id. at 35-36, R. Vol. III. This appeal followed. Conner argues that the evidence

presented at his resentencing was insufficient to establish the quantity of

pseudoephedrine contained in the tablets and that Officer Comfort was not

qualified to testify concerning that quantity.




                                          -5-
                                   D ISC USSIO N

      “Factual findings regarding drug quantities are reviewed for clear error and

are 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. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005). Further,

“so long as the district court applies the Guidelines in an advisory, rather than a

mandatory, fashion, it may rely on facts found by a judge to be true based on a

preponderance of the evidence.” United States v. Bustamonte, 454 F.3d 1200,

1202 (10th Cir. 2006). W hen drug quantities are calculated for purposes of

determining a defendant’s base offense level under the guidelines, the evidence

must have a “minimum indicia of reliability.” United States v. Ryan, 236 F.3d

1268, 1273 (10th Cir. 2001).

      W e hold that the district court’s calculation of drug quantity was not clearly

erroneous. The evidence supporting that quantity has sufficient indicia of

reliability. Officer Comfort, a six-year veteran of methamphetamine

investigations, testified about the manufacturer’s representation as to how much

of the chemical pseudoephedrine was contained in each tablet. W hile Conner

suggests that Comfort was not a chemist and had no qualifications to testify as to

chemical quantities, we conclude that he did not need such qualifications to

testify as to what the manufacturer represented was in each tablet. Further, the

government did not purport to offer Comfort’s testimony as that of an expert in

                                         -6-
chemistry. He testified as an experienced drug enforcement officer, who could

recount what was written on the outside of bottles or boxes of pills.

       In short, the calculation of the quantity of pseudoephedrine attributable to

Conner w as supported by a preponderance of evidence bearing sufficient indicia

of reliability.



                                  C ON CLU SIO N

       For the foregoing reasons, we AFFIRM the sentence imposed in this case.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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