F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               MAR 5 2002
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                          No. 01-8034
 LARRY WILLIAM MESE,                                  (D.C. No. 00-CR-175-2-J)
                                                            (D. Wyoming)
          Defendant - Appellant.




                                  ORDER AND JUDGMENT*


Before BRISCOE and BALDOCK, Circuit Judges, and ALLEY, District Judge.**


      A jury convicted Defendant Larry William Mese of conspiracy to distribute over

50 grams of a substance containing methamphetamine in violation of 21 U.S.C. § 846 and

21 U.S.C. § 841(b)(1)(B). By special verdict, the jury found Defendant conspired to

distribute over 50 grams. At sentencing, the district court determined by a preponderance

of the evidence that Defendant conspired to distribute between 350 and 500 grams,



      *
          This order and judgment is not binding precedent, except under the doctrines of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.
      **
          The Honorable Wayne E. Alley, United States District Judge for the Western
District of Oklahoma, sitting by designation.
resulting in a sentencing guideline base offense level of 30. The court determined

Defendant possessed a dangerous weapon (a 9mm semi-automatic pistol), and assessed a

two-level upward adjustment. The court also assessed a two-level upward adjustment for

obstruction of justice after determining Defendant failed to voluntarily surrender the

morning after his conviction. Defendant’s criminal history placed him in category III,

resulting in a sentencing guideline range of 188 to 235 months. The maximum sentence

under 21 U.S.C. § 841(b)(1)(B) is 40 years. The court sentenced Defendant to 188

months, well below the statutory maximum, and at the bottom of the sentencing guideline

range.

         On appeal, Defendant seeks a reversal of his conviction, asserting (1) the district

court erred in denying his motion to suppress fruits of a search of his residence; and (2)

evidence was insufficient to support a conspiracy conviction under 21 U.S.C. § 846.

Defendant also asserts that the statute under which he was sentenced, 21 U.S.C.

§ 841(b)(1)(B), and the United States Sentencing Guidelines are unconstitutional in light

of Apprendi v. New Jersey, 

(2000). He seeks a remand for resentencing

based solely on facts found by the jury beyond a reasonable doubt. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

                                               I.

         In September 2000, an informant notified the Wyoming Division of Criminal

Investigation (DCI) that he had purchased several quantities of methamphetamine from


                                               2
Charles Harms, a co-defendant in this case. The informant agreed to cooperate with DCI

agents and make a series of controlled purchases from Harms.

       After a series of small purchases, Harms agreed to sell the informant an ounce of

methamphetamine. Harms stated he would travel to Colorado to obtain the substance.

DCI agents followed Harms to Greeley, Colorado, where they observed Harms meet

briefly in a gas station parking lot with a man in a car registered to Defendant. After the

meeting, Harms immediately returned to Wyoming and delivered methamphetamine to

the informant. Subsequently, the informant placed a second one-ounce order with Harms.

Harms again traveled to Colorado and met with Defendant, this time at a residence in

Evans, Colorado. Later that day, after making several other stops, Harms delivered one

ounce of methamphetamine to the informant.

       After his arrest, Harms agreed to cooperate in DCI’s investigation of Defendant.

Harms informed agents that he had purchased methamphetamine from Defendant

approximately once a week for the last six months and that Defendant typically “fronted”

the substance, not requiring payment until Harms resold the substance in Wyoming. DCI

agents instructed Harms to arrange to purchase two ounces of methamphetamine from

Defendant. Harm placed a phone call to Defendant during which Defendant agreed to

meet Harms at Defendant’s residence in Fort Morgan, Colorado, and to front Harms two

ounces of methamphetamine. DCI agents recorded the phone number and monitored the

conversation. The following day, DEA agents working with Wyoming DCI arrested


                                             3
Defendant in Fort Morgan, Colorado.

       The subsequent investigation revealed Defendant owned the residence in Evans,

Colorado where DCI agents had observed a meeting between Defendant and Harms. The

investigation also revealed Defendant owned a residence in Fort Morgan, Colorado.

Using phone and utility records, law enforcement officers applied for and received a

federal search warrant for the residence located at 16112 Morgan County Road 19, Fort

Morgan, Colorado.1 Upon reaching this address, the agents met Defendant’s mother who

advised the agents that her son lived in the adjoining house on her property, 16104

Morgan County Road 19. Defendant’s mother also told agents Defendant shared the

portable cordless phone registered under her name. Defendant’s mother consented to a

search of her residence. The search did not reveal any evidence of narcotics.

       While agents performed the consent search of Defendant’s mother’s residence,

local officers prepared an affidavit for a second search warrant based on the information

obtained from Defendant’s mother. The second affidavit incorporated the affidavit

submitted with the initial application. The officers presented both affidavits with the

warrant application, but did not reveal that agents were currently conducting a consent



       1
          The affidavit accompanying the warrant application included (1) Harms’
statements concerning Defendant’s narcotics activities; (2) observations of law
enforcement officers corroborating Harms’ statements; (3) a description of the monitored
phone conversation; (4) phone records indicating the phone number Harms dialed to
contact Defendant was registered to L. A. Mese at 16112 Morgan County Road 19; (5)
utility records for 16112 Morgan County Road 19 listing L. A. Mese as the subscriber.

                                             4
search. The warrant also did not reveal that agents planned to seek consent from

Defendant’s common law wife to search his residence in Evans, Colorado. The judge

issued a federal search warrant for the residence at 16104 Morgan County Road 19. The

search of that residence uncovered two ounces of methamphetamine in a thermos, nine

additional grams of methamphetamine, a small scale, drug ledgers, and $3,000.00 cash.

The cash included $350.00 in marked bills, bills DCI provided the informant to purchase

methamphetamine from Harms.

       Defendant filed a pre-trial motion to suppress the physical evidence. The district

court held an evidentiary hearing and found the affidavits provided sufficient probable

cause for a search. The court also found officers did not intend to mislead the issuing

judge by omitting evidence of the consent searches. Accordingly, the court denied

Defendant’s motion to suppress.

                                              II.

       Defendant asserts the district court erred in denying his motion to suppress the

physical evidence uncovered in the search of his Fort Morgan residence. Although the

affidavits supporting the search warrant clearly established probable cause, Defendant

asserts officers intentionally omitted material information which would have vitiated

probable cause in violation of Franks v. Delaware, 

, 155-56 (1978). When

reviewing a district court’s denial of a motion to suppress, this Court accepts the district

court’s factual findings unless they are clearly erroneous, viewing the evidence in the


                                              5
light most favorable to the Government. United States v. Basham, 

, 1203

(10th Cir. 2001). We review de novo the legal question of whether a search violated

Defendant’s Fourth Amendment rights. 

a Franks violation, Defendant must first establish by a preponderance

of the evidence that officers omitted material information intentionally or with reckless

disregard for the truth. United States v. Tisdale, 

, 973 (10th Cir. 2001). If

Defendant meets this burden, the court will examine the affidavit as if the omitted

information had been included to determine whether the affidavit would still give rise to

probable cause. 

exists when the supporting affidavit sets forth facts

that would lead a prudent person to believe there is a fair probability that contraband or

evidence of a crime will be found in a particular place. 

(citing

United States v. Wicks, 

, 972-73 (10th Cir. 1993)).

       Defendant asserts officers applying for the second search warrant intentionally

failed to include in the affidavit information regarding the ongoing consent search of

Defendant’s mother’s home in Fort Morgan, Colorado. Defendant also asserts officers

intentionally failed to include information regarding their plan to seek consent to search

Defendant’s residence in Evans, Colorado. Defendant fails to meet his initial burden of

showing the allegedly material omission was intentional or reckless. The affidavits

submitted in support of the second search warrant clearly indicate officers had earlier

requested and received a warrant for 16112 Morgan County Road 19. The affidavits also


                                             6
clearly indicate officers had been in contact with Defendant’s mother, the owner of that

residence. Defendant’s assertion that officers sought to hide this information is contrary

to the evidence. The district court also found, after conducting an evidentiary hearing and

listening to the officers’ testimony, that the officers did not intend to mislead the issuing

judge by omitting evidence of the consent searches. Given the evidence, we cannot say

this finding was clearly erroneous.

       In addition, Defendant fails to show how information regarding the concurrent

searches would vitiate probable cause. The other searches had little bearing on the facts

giving rise to probable cause to search Defendant’s Fort Morgan residence. Even

including the omitted information, the affidavit sets forth facts that would lead a prudent

person to believe officers would discover narcotics at the Fort Morgan residence.

Specifically, the affidavit included a transcript of the monitored telephone conversation in

which Defendant agreed to meet Harms at his Fort Morgan residence and to sell Harms

two ounces of methamphetamine. Accordingly, the district court did not err in denying

Defendant’s motion to suppress.

                                             III.

       Defendant also argues the evidence presented at trial was insufficient to support a

finding that he conspired to distribute methamphetamine in violation of 21 U.S.C. § 846.

We review sufficiency of evidence claims de novo. See United States v. Vallo, 

, 1246 (10th Cir. 2001). Evidence is sufficient to support a conviction if, viewing


                                              7
the evidence in the light most favorable to the Government, a reasonable jury could have

found the defendant guilty beyond a reasonable doubt. 

In reviewing the

evidence, we do not weigh conflicting evidence or consider witness credibility, as that

duty is delegated exclusively to the jury. United States v. Sanders, 

, 1281

(10th Cir. 2001). We resolve any conflicts in the evidence in favor of the Government.

a conspiracy conviction, the Government must show (1) two or more

persons agreed to violate the law; (2) the defendant knew the essential objectives of the

conspiracy; (3) the defendant knowingly and voluntarily became a part of the conspiracy;

and (4) the alleged coconspirators were interdependent. United States v. Dozal, 

, 797 (10th Cir. 1999). The jury may infer an agreement from circumstantial evidence

that indicates concerted action in furtherance of a common purpose. See 

also may infer guilty knowledge from the surrounding circumstances, and presume that a

defendant acting in furtherance of a conspiracy is a knowing participant therein. See 

in this case heard sufficient evidence to support its verdict. Harms

testified he engaged in multiple drug transactions with Defendant over a six-month

period. Harms also testified Defendant delivered large quantities of methamphetamine to

Harms for resale, and testified Defendant knew the substance would be resold in

Wyoming. The jury also heard evidence that Defendant fronted the drugs, not receiving

payment until Harms resold the drugs in Wyoming. We have held fronting is a significant


                                             8
factor in establishing Defendant’s participation in a conspiracy to distribute. See United

States v. Asch, 

, 1245 (10th Cir. 2000). Because Defendant fronted the

drugs to Harms, Defendant’s profit ultimately depended on Harms’ ability to distribute

drugs in Wyoming. Based upon the evidence presented at trial, a reasonable jury could

conclude Defendant participated in a conspiracy to distribute methamphetamine. In sum,

the Government introduced sufficient evidence to support Defendant’s conviction.

                                              IV.

       Finally, Defendant asserts the statute under which he was sentenced, 21 U.S.C.

§ 841(b)(1)(B), and the United States Sentencing Guidelines violate the constitutional

principles announced in Apprendi v. New Jersey, 

(2000). Defendant did

not raise these challenges before the district court. We therefore review these issues for

plain error. Fed. R. Crim. P. 52(b). Under the plain error standard, Defendant must

demonstrate the trial court erred, the error was plain, and the error affected his substantial

rights. See United States v. Cernobyl, 

, 1218 (10th Cir. 2001) (citing

United States v. Olano, 

, 732 (1993)). This Court has discretion to remedy a

plain error if the error seriously affects the fairness, integrity or public reputation of the

judicial proceedings. 

507 U.S. at 732).

        Defendant’s sentence did not exceed the maximum penalty for the offense

charged in the indictment and found by the jury. Defendant, however, asserts that he

cannot be sentenced under § 841(b)(1)(B) because the statute is unconstitutional.

                                               9
Defendant argues that 21 U.S.C. § 841(B)(1)(A) and (B) are facially unconstitutional

because the provisions establish drug quantity as a sentencing factor to be found by a

sentencing judge rather than a jury. Defendant correctly notes that Apprendi compels us

to submit to a jury any question of fact that increases the maximum penalty to which the

defendant is exposed. See 

. Defendant, however, misstates the

statute’s mandate. Although 18 U.S.C. § 841 establishes separate statutory provisions

governing the substantive offense and sentencing factors, nothing in the statute purports

to prescribe the process by which the elements of the offense and the sentencing factors

must be determined. See 

. As we have previously held, after

Apprendi drug quantities must be charged in the indictment, submitted to the jury, and

proved beyond a reasonable doubt to support a sentence enhancement under § 841(b)(1).

Apprendi, however, compels us to conclude that 21 U.S.C. § 841 is

facially unconstitutional. 

asserts that the United States Sentencing Guidelines violate the

constitutional principles announced in Apprendi by authorizing the sentencing court to

make sentence-enhancing factual determinations by a preponderance of the evidence.

This Court has expressly rejected Defendant’s argument. See United States v. Jackson,

, 1249 (10th Cir. 2001) (noting the Apprendi majority specifically avoided

disrupting the federal courts’ use of the sentencing guidelines). Even after Apprendi,

district courts are empowered to make findings by a preponderance of the evidence to


                                            10
determine an appropriate offense level under the Sentencing Guidelines. See 

; 

; United States v. Heckard, 

,

1234-35 (10th Cir. 2001). As long as Defendant’s sentence falls within the maximum

penalty established by the statute, Apprendi does not foreclose consideration of drug

quantities, or other factors, beyond the offense of conviction. See United States v.

Hinshaw, 

, 577 (10th Cir. 2000).

       Accordingly, the judgment of the district court is AFFIRMED.




                                          Entered for the Court,



                                          Bobby R. Baldock
                                          Circuit Judge




                                            11