                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                             May 6, 2009
                             No. 08-12867                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                     D. C. Docket No. 06-00007-CR-6

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JAMES DANIEL KENNEDY,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                              (May 6, 2009)

Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
       James Daniel Kennedy appeals his 210-month sentence for possession of a

listed chemical -- pseudoephedrine -- with intent to manufacture

methamphetamine, in violation of 21 U.S.C. § 841(c)(1). No reversible error has

been shown; we affirm.

       Kennedy pleaded guilty to possessing 2,709 pseudoephedrine tablets. In

determining the quantity of drugs attributable to Kennedy, the district court

included amounts of methamphetamine and methamphetamine mixture from

dismissed counts of the indictment. On appeal, Kennedy argues that the district

court calculated incorrectly his base offense level1 by (1) including quantities of

drugs not part of the count of conviction, and (2) estimating inaccurately the gram

weight of actual pseudoephedrine contained in the tablets.

       We conclude that the district court committed no error in attributing to

Kennedy drug amounts that were part of the indictment but later were dismissed as

part of the plea agreement. Under the advisory guidelines, the district court may

consider all relevant conduct -- not just charged conduct -- in calculating a

defendant’s offense level. United States v. Hamaker, 455 F.3d 1316, 1336 (11th

Cir. 2006). And we have determined that relevant conduct includes quantities of


       1
         The district court calculated Kennedy’s base offense level pursuant to U.S.S.G. § 2D1.1,
based on a cross-reference in U.S.S.G. § 2D1.11 -- the guideline for possessing a listed chemical
-- because his offense involved the unlawful manufacture of methamphetamine and resulted in a
greater offense level. See U.S.S.G. § 2D1.11(c)(1).

                                                2
drugs that are the subject of dismissed counts of the indictment. United States v.

Alston, 895 F.2d 1362, 1371-72 (11th Cir. 1990). Relevant conduct must be

proved by a preponderance of the evidence; but here, Kennedy does not dispute

that he sold methamphetamine to law enforcement officers or that law enforcement

officers seized methamphetamine from his truck upon arresting him. See United

States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (alleged relevant conduct

is deemed to be true when a defendant does not challenge the accuracy of the

allegations).2

       About Kennedy’s challenge to the pseudoephedrine weight calculation, he

did not challenge the method of calculation used by the probation officer in the

district court. He also fails to specify how the probation officer erred when

approximating the actual weight of pseudoephedrine: he says only that the

probation officer should have used a scientific process instead of an estimate. We

discern no error in the probation officer’s method of calculation. The probation

officer based his calculation of the amount of actual pseudoephedrine contained in

the tablets on a fair and conservative estimate of a minimum potency of 30

milligrams a tablet, even though many tablets had a higher strength; he then


       2
        To the extent that Kennedy argues that relevant conduct and drug quantity must be
proved beyond a reasonable doubt after United States v. Booker, 125 S.Ct. 738 (2005), we reject
his argument. Even after Booker, the preponderance-of-the-evidence standard applies to
guidelines calculations. See Hamaker, 455 F.3d at 1336.

                                               3
multiplied the net weight of the tablets by the potency percentage to calculate the

total amount of pseudoephedrine. See United States v. Rodriguez, 398 F.3d 1291,

1296 (11th Cir. 2005) (sentencing for a drug offense may be based on fair,

accurate, and conservative estimates of the quantity of drugs attributable to a

defendant).

       About the weight, Kennedy conceded at sentencing that the facts in the

presentence investigation report were accurate; he did not object to the weights of

the drugs. Thus, he is precluded from now challenging the drug quantity attributed

to him. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (defendant is

precluded from challenging district court’s factual findings when he fails to object

to the court’s findings).3

       Kennedy also challenges the enhancement to his sentence pursuant to

U.S.S.G. § 2D1.1(b)(1) for possessing a firearm during the commission of his

offense; he contends that the guns discovered in his truck at his arrest bore no

connection to the drugs. “For sentencing purposes, possession of a firearm

involves a factual finding, which we review for clear error.” United States v.


       3
         Also, Kennedy’s statements that the drug weights were correct invited the district court
to rely on the drug weight calculations in determining his base offense level. So, even if the
probation officer made a computational error, under the doctrine of invited error, we are
precluded from reversing any district court error about drug weight calculation. See United
States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (“Where invited error exists, it precludes a
court from invoking the plain error rule and reversing”) (citation omitted).

                                                4
Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006).

      If a defendant possessed a dangerous weapon during a drug trafficking

offense, a two-level increase is warranted. U.S.S.G. § 2D1.1(b)(1). “The

adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1,

comment. (n.3). The government has the burden of demonstrating the proximity of

the weapon to the site of the charged offense by preponderance of the evidence.

United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001). If the government

meets its burden, the burden shifts to the defendant to demonstrate that a

connection between the weapon and the offense clearly was improbable. Id.

      Here, the district court properly applied the firearm enhancement to

Kennedy’s sentence. The government showed -- and Kennedy did not dispute --

that three guns and a functional improvised explosive device (“pipe bomb”) were

present in his truck where the pertinent pseudoephedrine tablets were discovered

during a routine traffic stop and vehicle inventory search. The government was not

required to do more to prove that the weapons were used to aid in the offense.

See Audain, 254 F.3d at 1289. And Kennedy presented no evidence to meet his

burden of demonstrating that a connection between the firearms and the drugs

clearly was improbable.



                                          5
      Kennedy argues that the district court’s alleged errors in calculating the

guidelines range rendered his sentence -- at the top of the advisory guidelines range

-- unreasonable. When reviewing a sentence, we must, in pertinent part, ensure

that no procedural error occurred, such as the district court’s improperly

calculating the guidelines, basing a sentence on clearly erroneous facts, failing to

consider the 18 U.S.C. § 3553(a) factors, or failing to explain a variation from the

guidelines. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008).

      Kennedy bases his reasonableness challenge only on the alleged guidelines

calculation errors; and we already have concluded that these arguments have no

merit. The court treated the guidelines as advisory and concluded that a sentence

at the high end of the range was warranted because of Kennedy’s disregard for the

drug laws and the seriousness of his offense, including the pipe bomb in his truck

when he was arrested. The district court clearly considered the facts of the case

and the section 3553(a) factors and committed no procedural error. Kennedy has

not carried his burden of showing that his sentence was unreasonable. United

States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      AFFIRMED.




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