                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       July 12, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



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

          Plaintiff - Appellee,
                                                        No. 04-6137
 v.                                               (D.C. No. 03-CR-145-R)
                                                        (W .D. Okla.)
 D A RRYL R AY TH O RN TO N ,

          Defendant - Appellant.



                              OR DER AND JUDGM ENT *


Before EBEL, M cW ILLIAM S and KELLY, Circuit Judges.




      In this direct criminal appeal, Defendant-Appellant Darryl Ray Thornton

challenges his three forty-eight-month sentences for using a telephone to facilitate

a drug conspiracy. The district court ordered these three sentences to run

consecutively, for a total of 144 months’ imprisonment. In imposing this term of

incarceration, the district court, by relying upon court-found facts found by a

preponderance of the evidence to enhance Thornton’s sentences, comm itted




      *
       This Order and Judgment is not binding precedent, except under the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.
constitutional Booker 1 error. Because the Government has failed to show that this

error was harmless, we REM AND for the district court to vacate Thornton’s

sentence and resentence him.

I.     B ACKGR OU N D

       A jury convicted Thornton on three counts of using a telephone to facilitate

a drug trafficking conspiracy, in violation of 21 U.S.C. § 843(b), 2 but acquitted

Thornton of conspiring to distribute drugs and possessing drugs w ith the intent to

distribute. 3   4
                    In calculating Thornton’s sentence, the district court found that he

was responsible for the equivalent of 3,723.3 kilograms of marijuana, which




       1
           United States v. Booker, 543 U.S. 220 (2005).
       2
           Section 843(b) makes it

       unlawful for any person knowingly or intentionally to use any
       communication facility in committing or in causing or facilitating the
       commission of any act or acts constituting a felony under any provision
       of this subchapter or subchapter II of this chapter. Each separate use
       of a communication facility shall be a separate offense under this
       subsection. For purposes of this subsection, the term “communication
       facility” means any and all public and private instrumentalities used or
       useful in the transmission of writing, signs, signals, pictures, or sounds
       of all kinds and includes mail, telephone, wire, radio, and all other
       means of communication.
       3
        See United States v. Pow ell, 469 U.S. 57, 62, 59-60 (1984) (“Consistency
in the verdict is not necessary. Each count in an indictment is regarded as if it
were a separate indictment.”)
       4
       The trial court dismissed another possession count at the G overnment’s
request.

                                              -2-
resulted in a base offense level of thirty-four. 5 The court then enhanced that

offense level by two, to thirty-six, after finding that Thornton played a managerial

role in the offense. An offense level of thirty-six combined with Thornton’s

criminal history score of II resulted in a guideline range of between 210 and 262

months’ imprisonment. See U.S.S.G. Sentencing Table. A telephone solicitation

conviction under § 843(b), however, carries a statutory maximum sentence of

only forty-eight months. 6 See 21 U.S.C. § 843(d). In light of that, U.S.S.G.

§ 5G1.2(d) required the district court to impose consecutive forty-eight-month

sentences for each of Thornton’s three telephone facilitation convictions,

resulting in a total imprisonment of 144 months. 7 Thornton challenges that


      5
      The district court applied the 2003 sentencing guidelines to calculate
Thornton’s sentence.
      6
       The sentencing court rejected the Government’s assertion that Thornton
had a prior state-court conviction that made him subject instead to an eight-year
statutory maximum.
      7
       “Section 5G1.2 addresses the interplay between statutory maximums and
sentences arrived at through application of the Guidelines in sentencing
multi-count indictments.” U nited States v. Lott, 310 F.3d 1231, 1242 (10th Cir.
2002), overruled on other grounds by Booker, 543 U.S. 220 (2005). Section
5G1.2(d) provides that

      [i]f the sentence imposed on the count carrying the highest statutory
      m aximum is less than the total punishment, then the sentence imposed
      on one or m ore of the other counts shall run consecutively, but only to
      the extent necessary to produce a combined sentence equal to the total
      punishment. In all other respects sentences on all counts shall run
      concurrently, except to the extent otherwise required by law.

                                                                       (continued...)

                                        -3-
sentence on several grounds. Having jurisdiction to consider this appeal pursuant

to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we REM AND to the district court

with instructions to vacate Thornton’s sentence and resentence him.

II.       STANDA RD O F REVIEW

          Even after Booker, this court continues to review the legal determinations

underlying a district court’s sentencing decision de novo and any factual findings

for clear error. See United States v. Zunie, 444 F.3d 1230, 1236 (10th Cir. 2006).

Because Thornton, at sentencing, unsuccessfully objected under Apprendi v. New

Jersey, 530 U.S. 466 (2000), to the trial court’s enhancing his sentence based

upon a drug quantity found by the sentencing court, this court will review

Thornton’s constitutional challenge to his sentence de novo. See United States v.

Stiger, 413 F.3d 1185, 1191 (10th Cir.), cert. denied, 126 S. Ct. 775 (2005); see

also United States v. Glover, 413 F.3d 1206, 1208, 1210 (10th Cir. 2005)

(assuming Apprendi objection preserved claim alleging non-constitutional Booker

error).

          7
       (...continued)
Further,

          “[t]otal punishment,” as defined in the com mentary to the Guidelines,
          means the “combined length of sentences” and “is determined by the
          adjusted offense level.” In other words, the “total punishment” is the
          sentence arrived at for all counts through application of the Guidelines,
          including determination of the base offense levels, application of
          grouping provisions, and calculations of other adjustments.

Lott, 310 F.3d at 1242.

                                            -4-
III.   ANALYSIS

       A.    Drug quantity used to calculate Thornton’s base offense level.

       The base offense level for a telephone facilitation conviction is governed

by U.S.S.G. § 2D1.6, which directs the district court to apply the base offense

level “applicable to the underlying offense.” The district court therefore applied

the guideline pertaining to drug trafficking, U.S.S.G. § 2D1.1. Section 2D1.1

determines a defendant’s offense level based upon the type and amount of drugs

for w hich he w as responsible. Because Thornton’s offenses involved two

different drugs, crack and marijuana, the district court used § 2D1.1’s

equivalency tables, see § 2D1.1, application note 10, to determine that Thornton

was responsible for the equivalent of 3,723.3 kilograms of marijuana. That

amount of marijuana produced a base offense level of thirty-four. W ith a

two-level increase for Thornton’s role in the offense (the validity of which is

discussed below , in section III.B) and Thornton’s criminal history category of II,

the guideline range was 210-262 months’ imprisonment.

       Had the fact finder, instead, determined that Thornton was responsible for

an undetermined amount of crack, his base offense level would have been only

twelve. See U.S.S.G. § 2D1.6, application note 1 (noting § 2D1.1 provides for a

minimum base offense level of twelve when the offense involves cocaine or

crack). Adding two levels for Thornton’s role in the offense would have resulted

in an offense level of fourteen; combined with a Category II criminal history,

                                        -5-
Thornton’s guideline range would have been eighteen to twenty-four months. See

U.S.S.G. Sentencing Table.

      Thornton argues that the district court’s finding by a preponderance of the

evidence of the drug quantity on which his sentence was based amounted to

constitutional Booker error. 8 In Booker, the Supreme Court “held that mandatory

application of the [federal sentencing] Guidelines violates the Sixth Amendment

when judge-found facts, other than those of prior convictions, are employed to

enhance a sentence.” U nited States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th

Cir.) (en banc) (citation, quotation, alteration omitted), cert. denied, 126 S. Ct.

495 (2005). In the wake of Booker, there are two distinct errors that are possible:

constitutional Booker error, which involves the district court using factual

findings it made by a preponderance of the evidence to enhance the defendant’s

sentence; and non-constitutional Booker error, which involves the district court’s

applying the federal sentencing guidelines in a mandatory manner.

Gonzalez-Huerta, 403 F.3d at 731-32 (citations omitted). “A case involving

constitutional error . . . will always involve non-constitutional Booker error as

well.” United States v. Clifton, 406 F.3d 1173, 1181 (10th Cir. 2005).



      8
       Because Thornton filed his opening brief in this appeal before the Supreme
Court decided Booker, he asserted this constitutional argument under the
precursor to Booker, Blakely v. W ashington, 542 U.S. 296 (2004). But “raising
his Sixth Amendment issue pursuant to Blakely in his opening brief is sufficient
to invoke Booker.” United States v. Brooks, 438 F.3d 1231, 1243 (10th Cir.
2006).

                                         -6-
      Thornton first contends that at trial the jury specifically found, beyond a

reasonable doubt, that he was responsible for no drugs. According to Thornton,

the district court was bound by that determination at sentencing. W e conclude,

however, that the jury did not specifically find that Thornton was responsible for

no amount of drugs.

      The verdict form, in setting forth the conspiracy and possession counts on

which the jury acquitted Thornton, did provide spaces w here jurors could indicate

the type and amount of drugs underlying those offenses. In acquitting Thornton

of those charges, the jury left those spaces for drug quantity blank. Thornton

contends that those blank spaces mean that the jury actually found that he had not

been involved with any drugs. But by the very language of the verdict form, the

jurors never had to reach the question of drug quantity. Rather, the verdict form

required jurors to find drug quantity only “[i]f you have found the defendant

Darryl Ray Thornton guilty of the offense of” conspiracy or possession of drugs

with the intent to distribute. Because the jurors did not find Thornton guilty of

any of those offenses, they never had occasion to make a finding as to drug

quantity. And the verdict form did not require the jury to find drug quantity for

the three telephone facilitation charges on which the jury did convict Thornton.

Under these circumstances, then, and presuming as w e must that the jurors

followed the instructions the trial court gave them, see United States v. Almaraz,




                                        -7-
306 F.3d 1031, 1037 (10th Cir. 2002), the verdict form does not indicate that the

jury specifically found that Thornton was not involved with any drugs at all.

      Nevertheless, the district court did commit constitutional Booker error

when it enhanced Thornton’s offense level from twelve to thirty-four based upon

its finding, by a preponderance of the evidence, that Thornton was responsible for

the equivalent of 3,723.3 kilograms of marijuana. See Brooks, 438 F.3d at 1243.

This error requires resentencing unless the Government can show, beyond a

reasonable doubt, that this constitutional error was harmless, see United States v.

W aldroop, 431 F.3d 736, 743 (10th Cir. 2005); that is, that the error did not affect

Thornton’s “substantial rights,” Fed. R. Crim. P. 52(a). 9

      [T]here are at least two ways that a defendant’s substantial rights may
      have been affected in cases of constitutional Booker error [where the
      sentence falls within the Guideline range]. First, a defendant’s
      substantial rights may be affected if a jury applying a reasonable doubt
      standard would not have found the sam e material facts that a judge
      found by a preponderance of the evidence. Second, a defendant’s
      substantial rights may also be affected if there is a reasonable
      probability that, under the specific facts of his case as analyzed under




      9
        Thornton asserts that constitutional Booker error is structural error
requiring resentencing. This court, however, has previously rejected such an
argument. See United States v. Leach, 417 F.3d 1099, 1103 n.7 (10th Cir. 2005)
(rejecting argument that constitutional Booker error is structural error); see also
Gonzalez-Huerta, 403 F.3d at 734 (holding non-constitutional Booker error is not
structural error).

                                         -8-
      the sentencing factors of 18 U.S.C. § 3553(a) 10 , the district court would
      reasonably impose a sentence outside the Guidelines range.

United States v. Small, 423 F.3d 1164, 1190 & n.15 (10th Cir. 2005), cert. denied,

126 S. Ct. 1180, 1377, 2050 (2006) (citation, quotation omitted, and footnote,

emphasis added).

      The Government must show that the constitutional Booker error was

harmless beyond a reasonable doubt. See W aldroop, 431 F.3d at 743. In cases

where there is only non-constitutional error, this court will instead “review

whether the error was harmless by a preponderance of the evidence.” United

States v. M ontgomery, 439 F.3d 1260, 1263 (10th Cir. 2006). But where, as here,

there is constitutional as well as non-constitutional error, this court has applied a

unitary harmless-beyond-a-reasonable-doubt standard when review ing both

aspects of the Booker error; that is, this court has not subdivided the review

standards in those cases between constitutional and non-constitutional error. See

W aldroop, 431 F.3d at 743 (concluding constitutional Booker error was harmless

beyond a reasonable doubt because there was no reason to believe the district

court would impose a different sentence upon remand); see also Small, 423 F.3d

at 1190-91 (reviewing to determine whether preserved constitutional Booker error

      10
        18 U.S.C. § 3553(a) provides that, in imposing a sentence, the district
court should consider such things as the nature and circumstances of the offense;
the defendant’s history and characteristics; the need for the sentence to reflect the
seriousness of the offense; the need for deterrence, public protection and
rehabilitation; the kinds of sentences available as w ell as the applicable
sentencing guideline range; and the need to provide victims with restitution.

                                         -9-
was harmless beyond a reasonable doubt). In this case, the Government has not

shown beyond a reasonable doubt that the constitutional Booker error was

harmless, that is, that it did not affect Thornton’s substantial rights.

             1.     W hether a jury w ould find the same drug quantity beyond
                    a reasonable doubt.

      The Government has not shown that, had the jury been asked, it would have

found, beyond a reasonable doubt, the same drug quantity that the district court

found by a preponderance of the evidence. The district court based its drug

quantity finding on seven transactions: 11

                    a.     M arch 31, 2003.

      The district court found that Thornton was responsible for 7.1 grams of

crack he obtained from his co-defendant Kenneth Charles (“K.C.”) Brown on

M arch 31, 2003. At trial, the Government played a recording of two telephone




      11
        “The Guidelines require a sentencing court to consider ‘relevant conduct’
at sentencing, see U.S.S.G. § 1B1.3, including uncharged drug quantities if they
are part of the same conduct for which the defendant was convicted.” United
States v. Hauk, 412 F.3d 1179, 1195 (10th Cir. 2005) (quotation omitted).
Thornton did not challenge at sentencing, and does not challenge now on appeal,
that these seven transactions are part of the relevant conduct on which his
sentence should be based.

      In calculating the relevant drug quantity under the guidelines, U.S.S.G.
§ 2D1.1 provides that where there is “an agreement to sell a controlled
substance,” the district court can use the amount agreed upon unless “the
defendant establishes that he or she did not intend to provide, or was not
reasonably capable of providing, the agreed-upon quantity of the controlled
substance.” Id., application note 12.

                                          - 10 -
calls 12 made that night between Thornton’s girlfriend, Elizabeth Lyons, and

Brown, an admitted drug dealer. 13 During the first call, Thornton can be heard in

the background directing Lyons to ask questions and relay information to Brown.

During that call, Lyons tells Brown they need “one of them.” Brown testified that

what Lyons meant by “one of them” w as one-quarter ounce, or 7.1 grams, of

crack. During the second call, Lyons told Brown that Thornton had asked her to

call and see if they could get it now. Brown testified that after that second call,

Thornton came over to Brown’s home that same evening and bought a quarter

ounce of crack. Police officers followed Thornton and were able to verify that he

did briefly go to Brown’s home that night.

      The jury found that Thornton had used the telephone on this date to

facilitate a drug transaction, but acquitted him of possessing crack with the intent

to distribute. It may be that jurors acquitted Thornton of possessing the crack

because they did not find Brow n’s testimony credible. 14 It was only Brow n’s


      12
         Neither party has provided this court with the tapes of the telephone calls
at issue in this case. W e, therefore, rely on the trial testimony describing the
contents of these calls.
      13
        In this same prosecution, Brown had previously pled guilty to being one
of two leaders of a drug trafficking conspiracy involving cocaine, crack, and
marijuana.
      14
        Alternatively, jurors may have found that Thornton possessed this amount
of crack, but did not intend to distribute it. There was conflicting evidence
presented at trial on the question of whether Thornton could have been purchasing
this amount of crack for personal use instead of intending to resell it. It was
                                                                        (continued...)

                                        - 11 -
testimony that would have supported the jury finding that Thornton actually

obtained any crack that night. Likewise, it was only Brown’s testimony that

would have supported a finding that Thornton’s wanting “one of them” meant that

he was specifically seeking to buy a quarter ounce, or 7.1 grams, of crack. If, as

may be the case, the jury did not find Brown’s testimony credible as to the fact



      14
        (...continued)
unclear from the evidence whether Thornton even used crack, and if so, how
much he used and with what frequency. The evidence did establish that
Thornton’s girlfriend, Lyons, was a crack addict, but there was again no evidence
as to the frequency and amounts she used. During at least one of the taped
telephone calls, Lyons commented to Brown about how good the stuff was that
Thornton had just obtained from Brown, suggesting that Lyons had used at least
some of the crack Thornton had bought from Brown. Brown testified that a
person could individually use the amount of crack Thornton purchased from him,
although Brown believed Thornton was instead reselling it to his own customers.

       On the other hand, several Government witnesses testified that, in their
experience with crack addicts, one-quarter ounce of crack was too large a quantity
for personal use and so Thornton must have been purchasing this amount of crack
for resale. Further, there are several references during the taped telephone calls
indicating that Thornton had customers to whom he was going to sell the crack he
obtained from Brown. The Government, however, was unable to produce any
evidence tending to prove that Thornton actually did resell any of the crack.

       The evidence, then, was disputed as to whether or not Thornton could have
himself used all the crack he purportedly purchased from Brown, or instead
whether he resold most of that crack to his own customers. So it may be that the
jury acquitted Thornton of possessing the crack on M arch 31 because the
Government did not prove beyond a reasonable doubt that Thornton actually
possessed the crack. On the other hand, the jury may have acquitted Thornton of
possessing the crack with the intent to distribute because the Government failed
to prove that Thornton intended to distribute the crack instead of use it
personally. In light of that ambiguity, the Government cannot meet its burden on
appeal of establishing that a jury, had it been asked, would have found, beyond a
reasonable doubt, that Thornton obtained 7.1 grams of crack on M arch 31, 2003.

                                        - 12 -
that Thornton actually bought crack from Brown that night, then there is no

reason to think that the jury would, nevertheless, have found Brown’s testimony

credible as to the amount of crack that was being discussed over the telephone.

At a minimum, then, the evidence is sufficiently equivocal that the Government

cannot establish, beyond a reasonable doubt, that the jury, had it been asked,

would have found Thornton responsible for a transaction involving 7.1 grams of

crack on this date.

                      b.   April 3, 2003.

      The district court next found that Thornton was responsible for a

transaction involving one-quarter ounce, or 7.1 grams, of crack occurring on April

3, 2003. At trial, the Government played recordings of four calls occurring on

this date involving Lyons, Thornton and Brown. According to Brown, during the

first call, Thornton asked to buy some crack, but Brown did not have any

available to sell. 15 Lyons called Brow n twice more that night, on Thornton’s

behalf, to see if Brown had been able to obtain any more crack. All Brown had

available were “rocks,” just pieces of crack in quantities smaller than a quarter

ounce. Brown testified that he went by the Lyons/Thornton residence that night

and sold them w hat crack he had left for $140. (According to Brown, Thornton



      15
         B row n equivocated throughout his testimony. For example, while Brow n
testified on direct examination that Thornton was calling to see if he could buy
some crack, on cross-examination Brown testified instead that he did not know if
that conversation actually involved crack.

                                        - 13 -
ordinarily paid $200 for a quarter ounce of crack.) Brown testified on direct

examination that the amount he distributed to Thornton on this night was actually

$300’s worth of crack, which would presumably be more than a quarter ounce;

but on cross-examination, Brown testified instead he sold Thornton less than

one-quarter ounce that night.

      Again, it is only Brown’s testimony that indicates that Thornton was

specifically trying to buy a quarter ounce of crack. Further, Brown’s own

testimony is inconsistent as to the amount Brown purportedly sold Thornton.

Therefore, the Government has not shown that a jury would have found beyond a

reasonable doubt that Thornton was responsible for a quarter ounce, or 7.1 grams,

of crack on April 3.

                   c.    April 6, 2003.

      On April 6, 2003, police intercepted a call between Thornton and Brown,

during which Brown asked Thornton if he had some “green” to sell Brown.

Brown explained at trial that when he used the term green, he meant marijuana.

(Brown testified that he had previously purchased “a little sack” of marijuana

from Thornton, worth $20 to $30.) During this April 6 call, Thornton replied that

he only had a “zip,” or one ounce of marijuana. Thornton went on, however, to

tell Brown that Thornton’s “people w ould be back the following morning” with

more; it would cost $ 425 a pound, if Brown bought five pounds or more; and

Thornton’s people should have between “twenty and eighty.” Brown testified that

                                       - 14 -
that meant Thornton’s supplier would have between twenty and eighty pounds of

marijuana available to sell the next day. Brown told Thornton he wanted all of it.

It is undisputed, however, that Brown never obtained any marijuana from

Thornton on this occasion, either by buying it directly from Thornton, or having

Thornton broker a transaction between Brown and Thornton’s “people.” Based

upon this call, the jury convicted Thornton of using the telephone to facilitate a

drug transaction. In sentencing Thornton, the district court found that he was

responsible for eighty pounds of marijuana stemming from this telephone call.

      In calculating the relevant drug quantity under the guidelines, U.S.S.G.

§ 2D1.1 provides that where there is “an agreement to sell a controlled

substance,” the district court can use the amount agreed upon unless “the

defendant establishes that he or she did not intend to provide, or was not

reasonably capable of providing, the agreed-upon quantity of the controlled

substance.” Id., application note 12. There appear to be at least two problems

with the evidence supporting a factual finding that Thornton had agreed to, and

was capable of, arranging for Brown to purchase eighty pounds of marijuana.

      First, it is not at all clear that Thornton and Brown ever reached an

agreement regarding this marijuana purchase. M ost importantly for our purposes,

Brow n and Thornton never settled on an amount. Rather, they discussed Brow n’s

buying between twenty and eighty pounds, whatever Thornton’s supplier had

available the next day. For that reason, the Government has not shown beyond a

                                        - 15 -
reasonable doubt that a jury, had it been asked, would have found that Thornton

agreed to provide Brown with eighty pounds of marijuana.

      Secondly, there is no evidence in the record suggesting that Thornton was

actually capable of providing Brown with that much marijuana. Brown testified

at trial that he had previously bought marijuana from Thornton, but only in much

smaller amounts. Further, Robert Ryan, an agent with the Drug Enforcement

Agency, testified at Thornton’s sentencing hearing that Thornton was always

trying to broker bigger drug deals, but that these deals w ould inevitably fall

through and never actually occur. And while Agent Ryan also testified that he

believed Thornton could have pulled off this deal, the evidence is sufficiently

equivocal such that the Government has not shown that a jury, had it been asked,

would have found beyond a reasonable doubt that Thornton was responsible for

eighty pounds of marijuana resulting from this negotiation.

                   d.     April 7, 2003.

      The district court also found that Thornton was responsible for 7.1 grams of

crack based upon a call between Lyons and Brown occurring on April 7, 2003.

Several calls involving Lyons, Thornton and Brown occurred on this date. During

one of these calls, Lyons told Brown that Thornton wanted “two.” A ccording to

Brown, that meant Thornton wanted to buy two quarter ounces of crack. In a later

call, Brown told Thornton to come and get it. Brown testified that as a result of

this call, Thornton went to Brown’s residence, where Brown sold Thornton one

                                        - 16 -
quarter ounce, or 7.1 grams, of crack. It is again only Brown’s testimony, which

the jury may not have found credible, that establishes the amount of crack that he

sold Thornton on that date. In addition, Brown’s own testimony about the amount

is inconsistent. In light of that, there does not appear to be a reasonable

probability that a jury would have found, beyond a reasonable doubt, that

Thornton was responsible for one-quarter ounce, or 7.1 grams, of crack on this

date.

                    e.     April 13, 2003.

        The district court also found that Thornton was responsible for another 7.1

grams of crack based upon a telephone call occurring on April 13, 2003 between

Thornton and Brown. During this call, Thornton told Brown he was “ready,”

meaning, according to Brown, that Brown should come by with more crack.

Brown testified that later that same day, Brown sold Thornton one-quarter ounce

of crack. Police were able to verify that Brown went to the Lyons/Thornton

residence briefly on that date. But at trial, the jury acquitted Thornton both of

using a telephone on this date to facilitate a drug transaction and of possessing

crack with the intent to distribute. It appears clear, then, that the jury, had it been

asked, would not have found beyond a reasonable doubt that Thornton was

responsible for 7.1 grams of crack on this date. 16

        16
       Of course, on remand, the district court, treating the Guidelines as only
advisory, may still find sentencing facts by a preponderance of the evidence. See
                                                                      (continued...)

                                         - 17 -
                   f.     April 22, 2003.

       The district court found that Thornton was responsible for one ounce of

crack on this date, based upon a telephone conversation between Thornton and

Brown. According to Brown, during this call, Thornton wanted to buy an ounce

of crack on behalf of “Richard,” who would pay $800 for that ounce. Again, the

only evidence of the quantity involved in this transaction comes from Brown, who

the jury may not have found to be credible. Further, although Brown testified at

trial that Thornton was trying to buy an entire ounce of crack, four times what

Brown asserted Thornton would ordinarily buy, Brown had previously told police

that he had never sold Thornton more than a quarter ounce of crack at any one

time. In light of this equivocal evidence and the jury’s possible disbelief of

Brown’s testimony, the Government has not shown that a jury would have found

beyond a reasonable doubt that Thornton was responsible one ounce of crack on

this date.

                   g.     April 23 and 24, 2003.

       The district court found that Thornton was responsible for 4.5 ounces of

crack stemming from a series of telephones calls occurring over this two-day

       16
        (...continued)
United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005). And in making
those sentencing findings, the district court is not bound by the jury’s acquittal
verdict, made under “the more onerous reasonable doubt standard.” United States
v. Serrata, 425 F.3d 886, 920 (10th Cir. 2005); see also United States v.
M agallanez, 408 F.3d 672, 683-85 (10th Cir.) (applying United States v. W atts,
519 U.S. 148 (1997), post-Booker), cert. denied, 126 S. Ct. 468 (2005).

                                       - 18 -
period of time. According to Brown, these telephone conversations focused on

Thornton’s attempts to purchase, for someone else, nine ounces of crack, a much

larger amount than Brown had ever before sold Thornton. Brown told Thornton

he did not have that much readily available, but to check back with him later.

Brown was eventually able to acquire nine ounces of crack, but was only willing

to sell Thornton half of that amount, or 4.5 grams. Ultimately, Thornton bought

only his usual one-quarter ounce.

      The district court, nevertheless, found that Thornton was responsible for

4.5 ounces of crack. Once again, however, this amount is based only upon

Brow n’s testimony, which the jury may have found to be incredible generally. In

addition, Brown testified that he had previously told police he had never sold

Thornton any amount of crack larger than a quarter ounce at any one time. Even

assuming this deal was originally for nine, and then later 4.5 ounces, of crack,

and although the substance of the conversations indicates it was actually Brown

who was having trouble finding enough crack to conduct this transaction, the

evidence is disputed as to whether Thornton himself could have actually

conducted this transaction. According to Brow n, Thornton had never before

purchased this much crack. And when Brown eventually offered to sell Thornton

at least 4.5 ounces, Thornton backed down and just bought what Brown

characterized as Thornton’s usual amount–one-quarter ounce. Further, although

Thornton told Brow n that he intended to show this quarter ounce to his customers

                                       - 19 -
to determine if they were still interested in buying more, there is no indication

that Thornton ever tried to conduct or broker a later sale. Again, based upon the

equivocal nature of this evidence, the Government cannot show that a jury would

have found beyond a reasonable doubt that Thornton was responsible for 4.5

ounces of crack stemming from this two-day transaction.

                    h.    Conclusion.

      The district court found, by a preponderance of the evidence, that Thornton

was responsible for the equivalent of 3,723.3 kilograms of marijuana, based upon

the above-referenced seven incidents. However, because of the disputed and

tenuous nature of the evidence supporting that drug quantity, the Government is

unable to show on appeal that a jury would have found these same sentencing

facts beyond a reasonable doubt. Therefore, the trial court’s constitutional

Booker error did affect Thornton’s substantial rights and he is entitled to

resentencing.

             2.     W hether the district court, now treating the G uidelines as
                    advisory and considering 18 U.S.C. § 3553(a)’s factors, is
                    likely on remand to impose a sentence outside the guideline
                    range.

      Although we need not further address whether the district court, in treating

the guidelines as advisory and considering § 3553(a)’s factors, would on remand

impose a sentence outside the guideline range, see Small, 423 F.3d at 1190-91

(noting “[t]his court need not even reach the second . . . alternative if it concludes



                                        - 20 -
that a jury likely would not have found the quantity of drugs required for [the

defendant’s] sentence beyond a reasonable doubt”), there is a reasonable

probability that the court would do so on remand.

      Among the § 3553(a) factors that the district court will have to consider on

remand are the need to avoid sentencing disparity among similarly historied

defendants, the need to promote respect for the law and to provide just

punishment, the kinds of sentences available, and the nature of the offense. See

18 U.S.C. § 3553(a)(1), (2)(A), (3), (6). Under the mandatory guideline regime,

the district court had to impose Thornton’s three sentences consecutively,

resulting in a 144-month term of imprisonment. See U.S.S.G. § 5G1.2(d). On

remand, however, this will not be required since the Guidelines are no longer

mandatory. Further, while the jury at trial acquitted Thornton of being a part of

Brown’s drug trafficking conspiracy and of possessing any crack with the intent

to distribute it, Brown, the admitted leader of that conspiracy, received a

146-month sentence after pleading guilty to conspiracy to distribute drugs. The

fact that both Thornton and Brown received practically the same sentence whereas

arguably Brown was more culpable may provide a basis under the § 3553(a)

factors for the district court to resentence Thornton outside the advisory guideline

range, although the sentencing calculation may take into account each of these

men’s prior convictions, the fact that Brown pled guilty, accepting responsibility

for his offenses, and cooperated with the Government by testifying against his

                                        - 21 -
co-defendants. Therefore, because there is a reasonable probability that the

district court, on remand, will impose a lighter sentence outside the advisory

guideline range, Thornton is entitled to resentencing on this basis as w ell.

             3.     Conclusion.

      The Government has failed to show that the constitutional Booker error

occurring during Thornton’s sentencing did not affect his substantial rights.

Therefore, Thornton is entitled to be resentenced. Because, on remand, the

district court will still have to consider the advisory Guidelines before imposing a

new sentence, we will address Thornton’s remaining issues. 17

      B.     Role in the offense.

      Thornton argues that the district court erred in denying him a decrease in

his offense level because he played only a m inimal or minor role in the offense.

The district court, instead of decreasing Thornton’s offense level, actually

increased it by two after finding, instead, that Thornton played a managerial or

supervisory role in the offense. See U.S.S.G. § 3B1.1(c). The district court based

this two-level increase on the court’s finding that Thornton directed Lyons to




      17
         Thornton argues that applying the remedial Booker holding, requiring the
district court on remand to treat the G uidelines as advisory, will violate Ex Post
Facto principles; that is, Thornton asserts that he is “entitled to the benefit of
[Booker’s] Sixth Amendment holding . . . , but cannot be disadvantaged by
retroactive application of [its] remedial opinion.” W e have, however, previously
rejected such an argument. See United States v. Rines, 419 F.3d 1104, 1106 (10th
Cir. 2005), cert. denied, 126 S. Ct. 1089 (2006).

                                         - 22 -
make some of the calls to Brown on Thornton’s behalf. 18 See U.S.S.G § 3B1.2(a)

and (b). Thornton now argues that the district court’s factual finding that

Thornton did not play a minimal or minor role was clearly erroneous. See United

States v. Virgen-Chavarin, 350 F.3d 1122, 1130-31 (10th Cir. 2003) (reviewing

district court’s refusal to apply downward adjustment for defendant’s role in the

offense for clear error). W e disagree.

      Section 3B1.2 “provides a range of adjustments for a defendant who plays a

part in committing the offense that makes him substantially less culpable than the

average participant.” Id., application note 3(A). The four-level decrease for one

who is a minimal participant applies to

      defendants who are plainly among the least culpable of those involved
      in the conduct of the group. Under this provision, the defendant’s lack
      of knowledge or understanding of the scope and structure of the
      enterprise and of the activities of others is indicative of a role as
      minimal participant. It is intended that the downward adjustment for a
      minimal participant will be used infrequently.




      18
        On appeal, Thornton argues that the district court, in finding by a
preponderance of the evidence that Thornton played a managerial role in the
offense and then using that finding to enhance his offense level, again comm itted
constitutional Booker error. W e agree. But because Thornton did not raise an
Apprendi objection to this enhancement at sentencing, we review this
constitutional error only for plain error. See United States v. Apperson, 441 F.3d
1162, 1212 (10th Cir. 2006). And because, as discussed below, there is plenty of
evidence in the record from which a jury would have found, beyond a reasonable
doubt, that Thornton played a managerial role, Thornton is not able to meet his
burden, under a plain-error analysis, of establishing that this constitutional
Booker error affected his substantial rights. See id.

                                          - 23 -
Id., application note 4. And the two-level decrease in an offense level for a

defendant who is a minor participant applies “to a defendant . . . who is less

culpable than most other participants, but whose role could not be described as

minimal.” 19 Id., application note 5. “A defendant has the burden of establishing,

by a preponderance of the evidence, that he is entitled to a reduction in his base

offense level under § 3B1.2.” Virgen-Chavarin, 350 F.3d at 1131 (quotation,

alteration omitted).

      The focus of the inquiry concerning a defendant’s role in the offense is on

“the defendant’s knowledge or lack thereof concerning the scope and structure of

the enterprise and of the activities of others in the offense.” United States v.

Salazar-Samaniega, 361 F.3d 1271, 1277 (10th Cir.) (quotation omitted), cert.

denied, 543 U.S. 859 (2004). Further, “[a] defendant is not entitled to a minimal

participant adjustment if he plays a ‘significant role’ in facilitating a drug

trafficking scheme,” including orchestrating the sale of drugs. Virgen-Chavarin,

350 F.3d at 1131. “The defendant’s own assertion that he was a minimal

participant is not enough to overcome the clearly erroneous standard.” Id.

      In this case, the evidence indicated that Thornton made numerous telephone

calls arranging drug transactions in which he was, at times, both the buyer and the

      19
        In this case, even a two-level reduction would have significantly affected
Thornton’s offense level because § 2D1.1(a)(3) provides that if “the defendant
receives an adjustment under § 3B1.2 (M itigating Role), the base offense level
under this subsection shall not be more than level 30.” (Emphasis in original.)
Thornton’s base offense level, instead, was thirty-four.

                                         - 24 -
seller, or at least the broker of a potential sale. Even when it was Lyons, rather

than Thornton, who called Brown to arrange a drug transaction, the evidence

indicated either that Thornton was in the background directing Lyons’s

conversation with Brown, or that Thornton had asked Lyons to make the call on

his behalf. And the drug transactions resulting from Lyons’s calls were always

conducted between Brown and Thornton. In light of this evidence, we cannot

conclude that the district court’s finding that Thornton was more than a minimal

or minor participant was clearly erroneous.

IV .   C ON CLU SIO N

       For these reasons, we REM AND this case to the district court with

directions to VACATE Thornton’s sentence and resentence him.


                                                 Entered for the Court


                                                 David M . Ebel
                                                 Circuit Judge




                                        - 25 -
