                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                      November 9, 2006
                                    TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                         Clerk of Court

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

           Plaintiff - Appellee,
                                                         No. 06-8030
 vs.                                              (D.C. No. 05-CR-108-CAB)
                                                          (D . W yo.)
 CRA IG A LAN DEM EULEN AERE,

           Defendant - Appellant.



                               OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **


       Defendant-Appellant Craig Demeulenaere appeals the sentence imposed by

the district court for his convictions for possessing with intent to distribute over

50 grams of methamphetamine in violation of 21 U.S.C. § 841(a) and (b)(1)(B)

(count 1) and distributing less than 50 grams of methamphetamine in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(C) (count 2). After a jury found him guilty on



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
these two counts, the district court sentenced M r. Demeulenaere to concurrent

terms of 68 months imprisonment followed by concurrent terms of three years

supervised release. M r. Demeulenaere was acquitted of a third count, possession

with intent to distribute cocaine. On appeal, he argues that the court

impermissibly enhanced his sentence based on acquitted conduct and uncharged

misconduct, thus violating his right to due process of law , to be free of double

jeopardy, and his right to trial by jury. He further argues that his sentence is

unreasonable because he was sentenced for acquitted conduct. Our jurisdiction

arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.



                                    Background

      Using a confidential informant, agents from the W yoming Division of

Criminal Investigation set up a controlled purchase of methamphetamine from M r.

Demeulenaere. The transaction proceeded as intended and M r. Demeulenaere was

arrested. Agents then obtained a warrant to search M r. D emeulenaere’s home.

During the search, the agents found 111.83 grams of methamphetamine, 37 grams

of marijuana, and 129.79 grams of cocaine. They also located a revolver under

his mattress.

      At sentencing, the district court imposed a two-level enhancement for

possession of a firearm. The court also considered the entire amount of

methamphetamine, marijuana, and cocaine found in M r. Demeulenaere’s home for

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purposes of calculating his base offense level, despite the jury’s verdict that count

1 involved less than 50 grams of methamphetamine and its acquittal of M r.

Demeulenaere on count 3. Although the total offense level was tw enty-eight,

with a criminal history category of I, the district court nevertheless departed

downward two levels, ultimately sentencing M r. Demeulenaere based on a total

offense level of twenty-six. The court explained why the sentence was reasonable

and indicated that it would have imposed the same sentence even if the guideline

range w as determined to be improperly calculated. R. Doc. 7 at 32 (Sent. Tr.).



                                     Discussion

      M r. Demeulenaere’s argument that the district court could not consider

facts contrary to the jury verdict is foreclosed by United States v. M agallanez,

408 F.3d 672, 685 (10th Cir. 2005). In M agallanez, we held that a sentencing

court has broad discretion to consider information regarding a defendant’s

conduct, even when the court’s view of the conduct conflicts with the jury’s

verdict. Id. at 684. Indeed, sentencing courts may consider conduct for which a

defendant has been acquitted. See United States v. W atts, 519 U.S. 148, 149

(1997). Our holding in M agallanez is but an application of the principle that

different standards of proof govern at trial and at sentencing. M agallanez, 408

F.3d at 684. “An acquittal by the jury proves only that the defendant was not

guilty beyond a reasonable doubt.” Id. Under the Sentencing Guidelines, and

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even after United States v. Booker, 543 U.S. 220 (2005), sentencing courts

determine relevant facts based on a preponderance standard. M agallanez, 408

F.3d at 685.

         M r. Demeulenaere asks that we revisit M angallanez, but we may not

overrule it, even if we were inclined to do so (which we are not). See United

States v. M eyers, 200 F.3d 715, 720 (10th Cir. 2000) (noting that one panel may

not overrule another panel). Other circuits have reached the same conclusion as

we did in M agallanez, and we think the decision is soundly supported by the

overwhelming weight of relevant authority. See, e.g., United States v. Valdez,

453 F.3d 252, 264 (5th Cir. 2006); United States v. Vaughn, 430 F.3d 518, 527

(2d Cir. 2005); United States v. Price, 418 F.3d 771, 788 (7th Cir. 2005); United

States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005).

         W e also reject the argument that the district court could not consider

uncharged conduct, specifically possession of the firearm and of certain drug

quantities. See Aplt. Br. at 10-11. W e have repeatedly held that uncharged

conduct proven by a preponderance of the evidence may be considered in

sentencing. United States v. Rodriguez-Felix, 450 F.3d 1117, 1131 (10th Cir.

2006).

         In alleging that his sentence is unreasonable because it was based on

factual findings contrary to the jury verdict, M r. Demeulenaere merely retools his

argument. W e review the district court’s legal interpretation and application of

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the sentencing guidelines de novo, but we review its factual findings for clear

error. U nited States v. Henry, 164 F.3d 1304, 1310 (10th Cir. 1999). W e

conclude that the district court made a thorough review of the facts and did not

comm it clear error given that it was obliged to apply a preponderance standard at

sentencing. W e have reviewed the district court’s reasoning and agree that the

sentence w as reasonable based on these facts.

      As a final matter, we must address M r. Demeulenaere’s pending motion

seeking leave to file a pro se supplemental brief. M r. Demeulenaere is

represented by counsel and the briefs submitted are adequate to guide our

decision in this case. A ccordingly, M r. Demeulenaere’s motion is denied and w e

order his supplemental brief stricken from the record. See United States v.

Nichols, 374 F.3d 959, 964 n.2 (10th Cir. 2004).

       A FFIR ME D.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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