                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 31, 2008
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 07-7061
 DYMOND CHARLES BROWN,                         (D.C. No. CR-06-069-001-RAW)
                                                      (E. D. Oklahoma)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, SEYMOUR, and HARTZ, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      A jury convicted Defendant Dymond Charles Brown of one count of

knowingly and intentionally possessing with intent to distribute in excess of five



      *
        This order and judgment is not binding precedent, except under the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.
grams of a mixture or substance containing a detectable amount of cocaine base,

in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii). He argues that the district

court erred in admitting a toxicology report showing the presence of cocaine in

his bloodstream on the date of his arrest. He also contends that his sentence was

substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291, and

affirm.

                                          I.

      On October 6, 2006, Officer James Folsum of the Muskogee Police

Department received a call notifying him that there was a reckless driver in the

Muskogee area. He arrived at the scene and saw a blue Chevrolet pickup truck

off of the road in a ditch. Defendant was sitting in the driver’s seat. When

Officer Folsum asked Defendant if he was okay, Defendant’s response was

inaudible. The driver’s side door had been damaged, and Defendant was unable

to open it, so Officer Folsum helped Defendant climb out of the window. At that

point, Officer Folsum detected a strong odor of alcohol, and he tried to take

Defendant into custody. Defendant resisted, and Officer Folsum was forced to

wrestle him to the ground. While simultaneously lying on top of Defendant and

preventing Defendant from escaping, Officer Folsum activated the emergency call

button on his police radio. In response, additional police officers arrived and

Defendant was taken into custody.

      Because they suspected that Defendant had sustained injuries in the

                                          2
accident, the police called the EMS, and Defendant was taken to the hospital by

ambulance. Officer Folsum followed in his patrol car. At the hospital, Officer

Folsum accompanied Defendant to the emergency room, where two nurses,

Keasha Newton and Sam Abbott, administered treatment to Defendant behind a

closed curtain. Officer Folsum waited outside of the curtain.

      Defendant did not speak to the nurses, but he responded to various stimuli.

Because they needed to perform a physical assessment of Defendant to determine

the scope of his injuries, the nurses began removing his clothing. When they slid

off his pants, two bags fell out of Defendant’s underwear. The bags contained a

white substance, and Defendant grabbed one of the bags in an attempt to prevent

the nurses from seizing it. Ultimately, the nurses confiscated both bags from

Defendant, and Ms. Newton stepped outside of the curtain and handed the bags to

Officer Folsum. The nurses also performed routine tests on Defendant to see if

drugs or alcohol were present in his system. A resulting toxicology report

showed that Defendant tested positive for cocaine, benzoin, PCP, and cannabis.

      For his part, Officer Folsum suspected that the two bags contained crack

cocaine. One of the bags contained a large solid piece of the substance, while the

second bag contained several small pieces. Officer Folsum took the bags back to

the police station, temporarily put them in a police locker, and later sent them to

the Oklahoma State Bureau of Investigation (“OSBI”) for testing. Jason

McGinnis, a criminologist with the OSBI, performed a preliminary test on the

                                          3
substance in the bags, which indicated the presence of crack cocaine. He next

tested the substance using a gas chromatograph mass spectrometer, which verified

that the substance did, in fact, contain cocaine base. The total weight of the

substance was 20.76 grams.

      At Defendant’s trial, the government presented the testimony of Officer

Folsum, Ms. Newton, Mr. Abbott, and Mr. McGinnis. The government also

presented the testimony of Officer William Bolling, a member of the special

investigations unit of the Muskogee Police Department. He explained that when

crack cocaine is manufactured, the end product is a whole piece, or “cookie”, that

is broken apart into smaller rocks for sale or personal use. On average, once the

cookie is broken apart, an individual rock weighs about 0.2 grams and costs

approximately $20.00 on the street. 1 One of the bags found on Defendant

contained rocks of approximately this size, most weighing between 0.1 and 0.3

grams, which was consistent with Defendant possessing them for distribution.

The other bag contained one big piece, weighing 13.3 grams (or roughly one-half

of an ounce), which was also a common quantity for distribution.

      The government introduced several exhibits, including the bags of crack

cocaine, the OSBI report, and a chain-of-custody report. One of the government’s

exhibits—the toxicology report from the hospital—created some controversy and


      1
       The cost, obviously, decreases or increases with the quantity, and
averages approximately $100 per gram.

                                          4
is the subject of Defendant’s appeal. Prior to the government presenting its case,

Defendant objected to the toxicology report on three grounds: (1) “that the only

witness who could properly sponsor that record and, of course, testify to those

facts would be the toxicologist,” (2) that its use at trial violated Rule 404(b) of

the Federal Rules of Evidence, and (3) that Defendant did not receive proper

notice that the government was seeking the report or planning to use it as

evidence. Tr. at 70. The government responded that the report was evidence of

Defendant’s possession, that the report was admissible under the hearsay

exceptions in Rules 803(4) and 803(6), and that the report was admissible without

the testimony of the custodian because it was properly authenticated by an

attached certificate. The district court ruled that the toxicology report was

admissible, stating:

       I think they do come in under the hearsay exceptions articulated by
       [government’s counsel]. I think they are relevant and certainly there
       is not substantial danger of unfair prejudice from them being
       admitted. So, I’m going to overrule that.

Tr. at 72.

       Later, when the government moved to admit the toxicology report into

evidence, Defendant again objected, arguing that the report had not been properly

sponsored, and that “it brings into evidence prior conduct of the defendant which

would not be admissible under 404(b).” Tr. at 124. The government again

responded that “[t]he medical records are authenticated by the attached certificate


                                           5
as appropriate or by the Federal Rules of Evidence and the materials are

admissible under an exception to the hearsay rule,” Rule 803(4) and/or Rule

803(6). Tr. at 125. As for Defendant’s argument under Rule 404(b), the

government argued that the toxicology report was not extrinsic evidence, but

rather “intrinsic evidence to this particular case, to this particular occasion.” Tr.

at 125. The district court agreed with the government, and admitted the

toxicology report into evidence.

      Defendant then took the witness stand to testify in his own defense. He

testified that he did not possess crack cocaine on October 6, 2006, and he did not

know how it came to be on his person. He believed that someone had planted the

crack cocaine on him. He also requested that the district court allow him to

undertake a “demonstration,” whereby he would put the bags of crack cocaine

down his pants and show that they could not have remained in place during his

scuffle with Officer Folsum. Over the objection of the government, the district

court allowed the demonstration, but the demonstration failed—the bags did not

move from inside Defendant’s pants. Ultimately, the jury returned a verdict of

guilty on the one count of possession of cocaine base with intent to distribute,

finding, as part of the verdict, that Defendant possessed five grams or more of a

mixture or substance containing cocaine base.

      The Presentence Report (“PSR”), relying upon the OSBI’s determination

that Defendant possessed 20.76 grams of crack cocaine, recommended a base

                                           6
offense level of 28. See U.S.S.G. § 2D1.1(a)(3), (c)(6). It also recommended a

two-level adjustment for obstruction of justice, see U.S.S.G. § 3C1.1, because

Defendant had “blatantly [given] false testimony at trial disputing witness

testimony that the drugs in this case fell out of his pants.” PSR, ROA, Vol. V, at

5. This resulted in a total offense level of 30. Because Defendant had two prior

felony convictions for crimes of violence, however, the PSR concluded that,

under U.S.S.G. § 4B1.1, Defendant was a career offender, and his offense level

under § 4B1.1(b)(B) was 34. Combined with a criminal history category of VI,

this resulted in a Guidelines range of 262 to 327 months. Prior to the sentencing

hearing, Defendant submitted a Sentencing Memorandum, asking for a variance

under the factors listed in 18 U.S.C. § 3553(a) and requesting a sentence of ten

years. Defendant also requested a departure from the career offender provision,

pursuant to U.S.S.G. § 4A1.3.

       At the sentencing hearing, the district court concluded that Defendant was a

career offender under U.S.S.G. § 4B1.1 and that the PSR had correctly calculated

the Guidelines range. As for Defendant’s request for a departure or variance, the

district court stated:

       I’ve reviewed the defendant’s sentencing memorandum and have
       taken into consideration the government’s position on the matter. I
       recognize my authority to vary from the advisory sentencing range
       called for by the application of the guidelines. I’ve considered the
       factors submitted on behalf of defendant and cannot find that, as to
       each or by any combination thereof, there exists mitigating
       circumstances which would warrant a variance or downward

                                          7
      departure from the recommended sentencing range established in this
      case. The defendant’s argument regarding the nature and
      circumstances of the offense is essentially that the crime could have
      been worse, larger quantity of drugs, identifiable victims, no
      firearms, not in possession of significant sums of money, no
      paraphernalia. The Court believes the guidelines take into account
      the crime charged and its attendant circumstances. Therefore, no
      variance is appropriate on that basis.

      The defendant’s argument regarding history and characteristics
      details the defendant’s less than idyllic upbringing and life history.
      The Court has considered these details but finds that the defendant’s
      history is not significantly different than that from any of the other
      defendants to the degree that a variance is appropriate. As the
      Court’s supposition, perhaps speculation, that the violent act inflicted
      upon the defendant in his childhood perhaps needs to be put aside as
      an excuse for further criminal conduct.

Sentencing Transcript, ROA, Vol. II, at 16-17. The district court also explained:

      In formulating the sentence imposed, this Court has considered the
      nature and circumstances of the offense, as well as the characteristics
      and criminal history of the defendant. The Court has further taken
      into consideration the sentencing guideline calculations obtained
      within the presentence report in addition to any objections,
      clarifications, additions, or deletions to those guideline calculations
      identified in the addendum to the report or announced in open court
      today. While the Court recognizes that it is not bound by the
      sentencing guideline calculations, the Court has considered them and
      finds them to be advisory in nature. The sentence prescribed by this
      Court reflects the seriousness of the offense, promotes respect for the
      law, and provides just punishment for the offense. This sentence
      affords adequate deterrence to criminal conduct, protects the public
      from further crimes of this defendant, and provides correctional
      treatment for the defendant in the most effective manner. The Court
      has further determined that this sentence is reasonable for this
      defendant and the crimes for which he’s been convicted. The Court
      notes for the record that this is the same sentence the Court would
      impose if given the broadest possible discretion, and the same
      sentence the Court would impose notwithstanding any judicial fact
      finding occurring by adoption of the presentence report or at this

                                         8
      hearing.

Id. at 19-20. The district court sentenced Defendant to 262 months’

imprisonment, followed by 48 months of supervised release.

                                         II.

      Defendant raises two issues on appeal. First, he argues that the district

court erred in admitting the toxicology report because (1) under Rule 403 of the

Federal Rules of Evidence, the report’s probative value was substantially

outweighed by the danger of its unfair prejudice; (2) the report was improperly

sponsored under Rule 803(6); and (3) the report violated his rights under the

Confrontation Clause of the Sixth Amendment. 2 Second, he argues that his

sentence was substantively unreasonable.

                       Admissibility of the toxicology report

A.    Fed. R. Evid. 403

      The district court’s decision to admit the toxicology report did not violate

Rule 403 of the Federal Rules of Evidence. Defendant did not object to the

toxicology report on this ground at trial, so we review for plain error. United

States v. Fleming, 19 F.3d 1325, 1331 (10th Cir. 1994) (“We generally review the

trial court’s decision to admit evidence under this rule for abuse of discretion.



      2
        Defendant has not appealed the district court’s ruling with regard to the
toxicology report’s admissibility under Rule 404(b), so we need not address that
issue.

                                          9
Because Mr. Fleming did not object on Rule 403 grounds at trial, however, we

review his claim only for plain error.” (citation omitted)). “Plain error occurs

when there is (1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (en banc) (citation and internal quotation marks omitted).

      The district court did not err, and Defendant’s claim fails under the first

prong of our plain error standard. Rule 403 provides:

      Although relevant, evidence may be excluded if its probative value is
      substantially outweighed by the danger of unfair prejudice, confusion
      of the issues, or misleading the jury, or by considerations of undue
      delay, waste of time, or needless presentation of cumulative
      evidence.

Fed. R. Evid. 403. “Unfair prejudice in the Rule 403 context means an undue

tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.” United States v. Moran, 503 F.3d 1135, 1145

(10th Cir. 2007) (citations and internal quotation marks omitted). “Excluding

otherwise admissible evidence under Rule 403 is an extraordinary remedy that

should be used sparingly.” United States v. Leonard, 439 F.3d 648, 652 (10th

Cir. 2006) (citation, alteration, and internal quotation marks omitted).

      The government had to prove that Defendant “knowingly or intentionally . .




                                           10
. possess[ed]” the controlled substance. 21 U.S.C. § 841(a)(1). 3 Defendant

contested this element of the crime, arguing that someone had planted the crack

cocaine on him. The toxicology report showed that Defendant had cocaine in his

bloodstream on the day of the arrest, increasing the probability that Defendant

knowingly and intentionally possessed the crack cocaine. See Fed. R. Evid. 401;

cf. United States v. McAfee, 998 F.2d 835, 837 (10th Cir. 1993) (explaining,

where a defendant’s urine had tested positive for cocaine, that “a person cannot

use a drug without possessing it”). In contrast, the danger of unfair prejudice

from the toxicology report was minimal. It did not substantially outweigh the

report’s probative value. See Fed. R. Evid. 403. The district court did not err

under Rule 403.

B.    Fed. R. Evid. 803(6)

      The district court held that the toxicology report fell within the hearsay

exceptions in Rules 803(4) and 803(6) of the Federal Rules of Evidence. Tr. at 72

(“I think they do come in under the hearsay exceptions articulated by

[government’s counsel].” (emphasis added)). On appeal, Defendant does not

challenge the district court’s determination under Rule 803(4); he only challenges

the determination under Rule 803(6).

      By failing to challenge the district court’s Rule 803(4) determination,



      3
          The lesser-included offense required similar proof.

                                          11
Defendant has waived the issue on appeal. See United States v. Black, 369 F.3d

1171, 1176 (10th Cir. 2004) (“Failure to raise an issue in the opening appellate

brief waives that issue.”). Moreover, the district court’s Rule 803(4)

determination was independently dispositive as to the admissibility of the

toxicology report under the hearsay rule and remains so on appeal. As the district

court identified an independent basis for the admissibility of the toxicology report

which has not been challenged on appeal, we need not address Defendant’s

argument challenging the court’s alternative ruling under Rule 803(6). See Berna

v. Chater, 101 F. 3d 631, 633 (10th Cir. 1996) ([I]f on appeal a claimant

challenges only one of two alternative rationales supporting a disposition . . .

success on appeal is foreclosed.”) (internal quotations and citation omitted)).

C.    Confrontation Clause

      The district court’s decision to admit the toxicology report did not violate

the Confrontation Clause of the Sixth Amendment. Because Defendant failed to

object before the district court on this ground, “we review the judge’s decision to

admit this evidence only for plain error.” United States v. Johnson, 971 F.2d 562,

572 (10th Cir. 1992). As explained above, “[p]lain error occurs when there is (1)

error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Gonzalez-Huerta, 403 F.3d at 732. Defendant has the burden of

showing plain error. See id. at 732-33.

                                           12
      Once again, Defendant has not met the first prong of the plain error

standard, because the toxicology report was not “testimonial” under the

Confrontation Clause. “[T]he Confrontation Clause bars admission of testimonial

out of court statements unless the witness is unavailable and the defendant had a

prior opportunity for cross-examination.” United States v. Ramirez, 479 F.3d

1229, 1247 (10th Cir. 2007) (citing Crawford v. Washington, 541 U.S. 36, 68

(2004)). Further, “Crawford suggests public records and business records fall

outside the testimonial ambit of the Confrontation Clause.” United States v.

Mendez, 514 F.3d 1035, 1045 (10th Cir. 2008) (citing Crawford, 541 U.S. at 76

(Rehnquist, C.J., concurring)); see also Crawford, 541 U.S. at 56 (explaining that

business records “by their nature were not testimonial”). Defendant has not

shown that the toxicology report was testimonial, and the district court did not err

in admitting it.

                   Substantive reasonableness of Defendant’s sentence

      Defendant’s sentence was substantively reasonable. As the Supreme Court

recently explained in Kimbrough v. United States, --- U.S. ---, 128 S. Ct. 558, 564

(2007), “‘reasonableness’ is the standard controlling appellate review of the

sentences district courts impose.” We review for substantive reasonableness

“under an abuse-of-discretion standard,” and, “[w]hen conducting this review,

[we] will, of course, take into account the totality of the circumstances, including

the extent of any variance from the Guidelines range.” Gall v. United States, ---


                                          13
U.S. ---, 128 S. Ct. 586, 597 (2007). Moreover, we may apply a presumption of

reasonableness to a sentence properly calculated under the Guidelines. Id. “‘The

defendant may rebut this presumption by demonstrating that the sentence is

unreasonable in light of the other sentencing factors laid out in [18 U.S.C.] §

3553(a).’” United States v. Arrevalo-Olvera, 495 F.3d 1211, 1213 (10th Cir.

2007) (quoting United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006))

(alteration in original).

       Defendant does not challenge the procedural reasonableness of his

sentence, and he acknowledges that the district court correctly calculated his

sentence under the Guidelines and imposed a within-Guidelines sentence.

Defendant contends, rather, that the district court should have granted him a

variance under the factors listed in 18 U.S.C. § 3553(a). 4 In particular, Defendant

argues that the seriousness of his criminal history was overstated, and that his

tumultuous upbringing would justify the court’s imposing a lower sentence.

       The district court did not abuse its discretion in imposing Defendant’s

sentence. The sentence was within the Guidelines range, so it is presumptively

reasonable on appeal. See Arrevalo-Olvera, 495 F.3d at 1213. Moreover,



       4
        Defendant also asserts that the district court should have granted him a
departure, pursuant to U.S.S.G. § 4A1.3, from the career offender provision in §
4B1.1. On appeal, however, we have no jurisdiction “to review a district court’s
discretionary decision to deny a motion for downward departure” pursuant to
U.S.S.G. § 4A1.3(b). United States v. Angel-Guzman, 506 F.3d 1007, 1017-18
(10th Cir. 2007) (quotation marks and citation omitted).

                                         14
Defendant has not succeeded in rebutting this presumption under the factors listed

in 18 U.S.C. § 3553(a). The district court analyzed the factors in detail on the

record, and, in light of this analysis, the district court did not abuse its discretion

in sentencing Defendant to 262 months’ imprisonment. Defendant’s sentence was

substantively reasonable.

      AFFIRMED.

                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




                                           15
