                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   December 6, 2007
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 07-5071
          v.                                   Northern District of Oklahoma
 VELMA GUTHRIE,                               (D.C. No. 06-CR-195-02-HDC)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


      Velma Guthrie was arrested, along with co-defendant Damian Garcia, when

the two of them sold cocaine to undercover officers in Tulsa, Oklahoma. A later

search turned up more drugs—8.23 grams of methamphetamine mixture, 16.27

grams of methamphetamine, 141.38 grams of cocaine mixture, and 11.08 grams of

cocaine base—along with cash and a number of guns. Ms. Guthrie was charged


      *
        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). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
with eight counts of drug and firearm offenses and pleaded guilty to two:

conspiracy to violate drug laws, 21 U.S.C. § 846, and possession of a firearm in

furtherance of a drug offense, 18 U.S.C. § 924(c)(1)(A)(i). The others were

dismissed.

      At sentencing, the Presentence Report recommended that in addition to the

drugs actually found by the police, Ms. Guthrie be held accountable for having

dealt nine more kilograms of cocaine—half a kilogram per week times 18

weeks—which is sentenced as the equivalent of 1800 kilograms of marijuana.

Combined with the other drugs in her residence, this brought her total marijuana

equivalent to 2142.3 kilograms. Ms. Guthrie contested the PSR’s factual

recommendation about her previous possession or distribution of the nine

kilograms of cocaine, which was necessary to establish her base offense level of

32.

      The primary evidence for the nine grams of cocaine came from a statement

Ms. Guthrie made to Detective Randy MacKenzie after she was arrested. At

sentencing, Detective MacKenzie testified that Ms. Guthrie had “stated that she

had been selling for approximately five months. She stated that [Mr. Garcia] gets

a half a kilo of cocaine a week and that they sell that half a kilo and some

methamphetamine per week.” R. Vol. IV, at 10–11. The district court found this

testimony “very helpful” in confirming the PSR’s accuracy. Id. at 28. The court

said that it had also been helped by the fact that Mr. Garcia, her co-defendant, had

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“verified the[] amounts” in the PSR at his own sentencing hearing. Id. Ms.

Guthrie put forward no evidence of her own. The court concluded that a

preponderance of the evidence indicated that she was responsible for at least nine

kilograms of cocaine over eighteen weeks.

      We review factual findings at sentencing for clear error, United States v.

Geiner, 498 F.3d 1104, 1108 (10th Cir. 2007), and this finding was not clearly

erroneous. Ms. Guthrie makes two objections: first, that her admission to

Detective MacKenzie was sufficiently ambiguous that it does not support the full

drug quantity; second, that it was improper to consider the testimony from her co-

defendant’s sentencing hearing or her co-defendant’s PSR because that evidence

was “outside the record.” Aplt’s Br. at 10. We disagree, and affirm.

      As to Detective MacKenzie’s testimony, Ms. Guthrie argues that while she

admitted to selling drugs for five months, and she admitted that at the time of her

arrest she sold half a kilogram of cocaine per week, she never specified that she

sold the same quantities of cocaine historically. She argues that during the

previous months when she sold drugs, she might have sold smaller quantities of

cocaine, or sold different drugs that are punished at a lower rate. This is not,

however, in accord with the best reading of the officer’s account of her post-

arrest statement. Her admission that she sold “half a kilo . . . per week,” R. Vol.

IV, at 10, most naturally suggests that during the weeks that she dealt drugs, she

dealt roughly half a kilogram of cocaine each week. Furthermore, the PSR,

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conservatively, ignored entirely the “some methamphetamine per week,” id., that

she also admitted selling. This underestimation heightens the likelihood that the

district court’s finding was correct. Given this testimony and the absence of any

evidence to the contrary, it was reasonable for the district court to infer that she

sold nine kilograms of cocaine. See United States v. Richards, 27 F.3d 465, 469

(10th Cir. 1994) (estimates of drug quantity “must . . . have some basis of support

in the facts of the particular case.” (internal quotation marks omitted)).

      On this evidence, it was not clearly erroneous for the court to conclude that

the preponderance of the evidence confirmed the quantity identified in the PSR.

Therefore, we do not need to decide whether it was improper for the court to be

“assisted,” id. at 28, by Mr. Garcia’s PSR and testimony from his separate

sentencing hearing, although we note that other circuits do permit the use of such

evidence at sentencing under some circumstances. See, e.g., United States v.

Canada, 960 F.2d 263, 267–68 (1st Cir. 1992) (testimony from co-defendant’s

sentencing hearing is admissible where there is a “meaningful opportunity to

comment” on it); United States v. Patrick, 988 F.2d 641, 648–49 (6th Cir. 1993)

(admitting testimony from co-defendant’s sentencing was at most harmless error).

It is unclear whether this Court would take the same approach, or whether those

circumstances would be deemed present here if we did.




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     The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.

                                             Entered for the Court,

                                             Michael W. McConnell
                                             Circuit Judge




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