FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         May 2, 2006
                                    TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                        No. 04-7095
 vs.                                              (D.C. No. 04-CR-10-W)
                                                        (E.D. Okla.)
 HOWARD WAYNE McGEHEE,

           Defendant - Appellant.


                               ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and McCONNELL, Circuit Judges.



       Defendant-Appellant Howard Wayne McGehee appeals from his multiple

convictions and sentences arising out of his involvement in a methamphetamine

manufacturing and distributing operation based at his residence in Wagoner

County, Oklahoma. Our jurisdiction arises under 28 U.S.C. § 1291 and 28 U.S.C.

§ 3742(a), and we affirm.




       *
        This order and judgment is not binding precedent, except under the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.
                                   Background

      An informant, Daniel R. Cox, first alerted law enforcement officials that

Mr. McGehee was manufacturing methamphetamine at his residence in Wagoner

County, Oklahoma. Mr. Cox revealed that he had previously purchased several

items involved in the manufacture of methamphetamine and delivered them to Mr.

McGehee. In addition, he told the officers that Mr. McGehee was in possession

of a .32 caliber Colt semi-automatic pistol. Based on this information, a search

warrant was sought and issued for Mr. McGehee’s residence. During the evening

of December 4, 2003, the warrant was executed.

      At the time of the search, four persons were present at the residence: Mr.

McGehee, Jason Don Sloan, Mary Jo Weaver/Maxwell, and Tamara Bianelle

Bedwell. Inside the residence and outbuildings on the property, law enforcement

discovered methamphetamine and items consistent with its manufacture, use,

possession and distribution—including production equipment, precursor

chemicals, empty blister packs, syringes, a firearm, a police scanner, surveillance

equipment, a notebook containing drug notations, and other ingredients commonly

used to manufacture methamphetamine.

      At trial, Oklahoma Bureau of Narcotics Agent Earl Beaver and Drug Task

Force Agent Clint Johnson testified that the evidence recovered during the search

indicated that methamphetamine was being manufactured at the residence. The

evidence suggested that both agents have extensive training and field experience

                                        -2-
in the investigation of clandestine methamphetamine labs.

      Mr. Cox and Mr. McGehee lived together for approximately three months

in the summer prior to the search of Mr. McGehee’s residence. In late November

2003, Mr. Cox was arrested for offenses unrelated to this appeal and detained in

the Muldrow, Oklahoma city jail. It was during this detention that he first

contacted law enforcement regarding the illicit activities taking place at Mr.

McGehee’s residence. Mr. Cox was released from custody on November 25, but

was subsequently arrested on November 29 for other offenses. On December 4,

Mr. Cox again met with law enforcement regarding Mr. McGehee. Following the

search of Mr. McGehee’s residence, Mr. Cox was released from custody on

December 5. Shortly thereafter, Mr. Cox ventured to Mr. McGehee’s residence to

retrieve certain items that belonged to him and to purloin others, including a .32

caliber Colt semi-automatic pistol that he claims was wedged in a living room

chair. Within a couple weeks, Mr. Cox turned the pistol over to law

enforcement. 1

      A jury convicted Mr. McGehee on all seven counts brought against him:

Count 1, conspiracy to manufacture, possess, and distribute methamphetamine in

violation of 21 U.S.C. § 846; Count 2, attempt to manufacture 50 grams or more


      1
        Apparently Mr. Cox used the pistol before tendering it to law
enforcement, discharging it several times during an incident in Arkansas. This
act resulted in him being arrested and charged for “terroristic threats.” Charges
were later dropped.

                                        -3-
of methamphetamine or 500 grams or more of a mixture or substance containing a

detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(viii) and 846 and 18 U.S.C. § 2; Count 3, possession of listed chemicals

knowing or having reasonable cause to believe the listed chemicals would be used

to manufacture methamphetamine in violation of 21 U.S.C. §§ 802 and 841(c)(2)

and 18 U.S.C. § 2; Count 4, maintaining a place for the purpose of manufacturing,

distributing, and using methamphetamine in violation of 21 U.S.C. § 856(a)(1)

and 18 U.S.C. § 2; Count 5, possession of a mixture or substance containing a

detectable amount of methamphetamine with intent to distribute in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count 6, possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1); and Count 7, carrying a

firearm during a drug trafficking felony and possessing a firearm in furtherance of

a drug trafficking felony in violation of 18 U.S.C. § 924(c)(1)(A)(i).

      In accordance with 21 U.S.C. § 851(a)(1), 2 the government filed an

information seeking to statutorily enhance Mr. McGehee’s sentence based on his

prior conviction for a felony drug offense pursuant to §§ 841(b)(1)(A) and (C).

The district court found one of his prior convictions qualified for the purposes of


      2
        21 U.S.C. § 851(a)(1) states, in pertinent part, that “[n]o person who
stands convicted of an offense under this part shall be sentenced to increased
punishment by reason of one or more prior convictions, unless before trial, or
before entry of a plea of guilty, the United States attorney files an information
with the court (and serves a copy of such information on the person or counsel for
the person) stating in writing the previous convictions to be relied upon.”

                                        -4-
§§ 841(b)(1)(A) and (C) and that §§ 841(b)(1)(A) and (C) applied. As a result,

the statutory minimum sentence Mr. McGehee could receive for Counts 1 and 2

was 240 months imprisonment followed by a term of supervised release of at least

10 years. See § 841(b)(1)(A). As to Counts 3, 4, and 5, each was punishable by a

term of imprisonment of up to 360 months followed by a mandatory term of

supervised release of at least 6 years. See 21 U.S.C. § 841(b)(1)(C). Count 6 was

punishable by a term of imprisonment of up to 120 months. See 18 U.S.C.

§ 924(a)(2). Count 7 carried a mandatory consecutive term of imprisonment of

not less than 60 months. See 

(term of imprisonment shall be

consecutive to other terms of imprisonment imposed).

      During sentencing, the district court examined and adopted the findings in

the pre-sentencing report (PSR). Accordingly, the district court found that Mr.

McGehee was responsible for 3816.4824 kilograms of marihuana equivalent,

setting his base offense level at 34. See U.S.S.G. § 2D1.1(c)(3) (Nov. 2003).

Based on a total offense level of 34, with a criminal history category of III, Mr.

McGehee’s guideline range was 188 to 235 months.

      The district court sentenced Mr. McGehee to terms of imprisonment of 240

months on Counts 1 and 2; 235 months on Counts 3, 4, and 5; 120 months on

Count 6; and 60 months on Count 7. Counts 1 through 6 are to be served

concurrently, while Count 7 is to be served consecutively. Mr. McGehee was

further sentenced to supervised release for terms of ten years on Counts 1 and 2;

                                         -5-
three years on Counts 3, 4, and 6; six years on Count 5, and five years on Count

7, all to run concurrently. This appeal followed.



                                    Discussion

      On appeal, Mr. McGehee challenges the sufficiency of the evidence

supporting his conviction on all counts and the district court’s application of 21

U.S.C. 841(b)(1)(A) and drug quantity determination when calculating his

sentence.

I. Sufficiency of the Evidence

      In determining whether the government presented sufficient evidence to

support the jury’s verdict, we must review the record de novo and ask only

whether, taking the evidence—both direct and circumstantial, together with the

reasonable inferences to be drawn therefrom—in the light most favorable to the

government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt. United States v. Scull, 

, 1282 (10th Cir. 2003).

We do not weigh conflicting evidence or decide the credibility of witnesses, as

that duty is delegated exclusively to the jury. United States v. Hien Van Tieu,

, 921 (10th Cir. 2002). “Rather than examining the evidence in ‘bits

and pieces,’ we evaluate the sufficiency of the evidence by ‘consider[ing] the

collective inferences to be drawn from the evidence as a whole.’” United States

v. Wilson, 

, 778 (10th Cir. 1997) (alteration in original). We may

                                        -6-
overturn a guilty verdict on sufficiency grounds only if no reasonable juror could

have reached such a verdict on the evidence presented. United States v. Shepard,

, 1119 (10th Cir. 2005).

      A. Conspiracy to Manufacture, Possess, and Distribute Methamphetamine

      Mr. McGehee claims that the government failed to provide sufficient

evidence that he was part of a conspiracy to manufacture, possess, and distribute

methamphetamine. A conspiracy in violation of 21 U.S.C. § 846 consists of four

elements. See United States v. Montelongo, 

, 1173 (2005). The

government must prove beyond a reasonable doubt (1) an agreement with another

person to violate the law, (2) knowledge of the essential objectives of the

conspiracy, (3) knowing and voluntary involvement, and (4) interdependence

among the alleged conspirators. 

Mr. McGehee challenges only

the first of these elements, arguing that “no one testified as to any agreement that

[he] had with anyone to manufacture, possess and distribute methamphetamine.”

Aplt. Br. at 15 (emphasis in original).

      In determining whether there was an agreement to commit an unlawful act,

“the critical inquiry is whether the circumstances, acts, and conduct of the parties

[we]re of such a character that the minds of reasonable men may conclude

therefrom that an unlawful agreement exist[ed].” United States v. Morehead, 

, 1500 (10th Cir. 1992) (internal quotation marks omitted). The



                                          -7-
existence of an agreement to violate the law “may be inferred from the facts and

circumstances of the case.” United States v. Evans, 

, 669 (10th Cir.

1992).

         Although it is true that no witness at Mr. McGehee’s trial testified to the

existence of an express agreement between Mr. McGehee and Mr. Sloan to

manufacture, possess and distribute methamphetamine, the government’s evidence

was more than sufficient to allow the jury to reasonably infer that such an

agreement existed. Mr. Sloan was physically present in Mr. McGehee’s house at

the time the search warrant for the house was executed on December 4, 2003, and

both Mr. McGehee and Mr. Sloan were arrested at that time. Agent Johnson

testified that it appeared that Mr. Sloan had been staying in the south bedroom of

Mr. McGehee’s house. Agent Beaver testified that, when he handcuffed Mr.

Sloan, he noticed the palms of Mr. Sloan’s hands were stained a deep brown,

consistent with iodine staining. Mr. Beaver opined that, based upon his

experience, the stains were two days old or less. Agent Beaver also testified that

he found tubing and glassware at Mr. McGehee’s residence that exhibited similar

iodine stains, suggesting that Mr. Sloan had been engaged in the production of

methamphetamine. Finally, Mr. Cox testified that Mr. Sloan had a reputation for

being the best in the area at producing methamphetamine from anhydrous

ammonia. According to Mr. Cox, Mr. McGehee typically produced

methamphetamine using red phosphorus and iodine, but wanted to learn how to

                                           -8-
use the anhydrous ammonia method because it was an easier method. Mr. Cox

further testified that Mr. McGehee asked him on several occasions to find and

make contact with Mr. Sloan. Considering this evidence along with the items of

physical evidence found in Mr. McGehee’s house at the time of the search, to

which Agents Johnson and Beaver testified were indicative of methamphetamine

manufacturing, the jury reasonably could have inferred that Mr. Sloan was staying

at Mr. McGehee’s house and assisting him in the production of methamphetamine

with the purpose of possessing and distributing it.

      B. Attempt to Manufacture Methamphetamine

      Mr. McGehee argues that the government failed to provide sufficient

evidence that he attempted to manufacture methamphetamine. To obtain a

conviction for attempt to manufacture methamphetamine under 21 U.S.C. § 846,

the government is required to prove beyond a reasonable doubt the defendant’s

“(1) intent to manufacture methamphetamine, and (2) commission of an act which

constitutes a substantial step towards commission of the substantive offense.”

United States v. Becker, 

, 1234 (10th Cir. 2000). Intent to

manufacture methamphetamine may be inferred from the surrounding

circumstances. See United States v. Leopard, 

, 1141 (10th Cir.

1991) (finding the defendant’s attempt to purchase most of the necessary

ingredients was enough to allow a jury to infer beyond a reasonable doubt that he

intended to manufacture methamphetamine). And the substantial step

                                        -9-
requirement may be inferred where many of the materials necessary for

manufacturing methamphetamine were present. See 

;

.

       At trial, Agents Johnson and Beaver testified that the search of Mr.

McGehee’s residence and the outbuildings on his property uncovered a cache of

items needed for the manufacture of methamphetamine—including precursor

chemicals, production equipment, and other commonly used ingredients. In

addition, Agent Johnson testified that the smell permeating one of the

outbuildings and the extensive metal corrosion therein indicated extensive

methamphetamine manufacturing had taken place there. The agents’ accounts

were corroborated by Mr. Cox’s testimony that Mr. McGehee continuously

cooked methamphetamine during the three month period they lived together. This

evidence was certainly more than sufficient for a jury to reasonably conclude that

Mr. McGehee intended to manufacture methamphetamine and took a substantial

step towards doing so.

      C. Possession of Listed Chemicals

      Mr. McGehee argues next that the government failed to provide sufficient

evidence that he possessed listed chemicals having reasonable cause to believe

they would be used to manufacture methamphetamine. To convict under 21

U.S.C. § 841(c)(2), the government is required to prove beyond a reasonable

doubt the defendant (1) knowingly or intentionally possessed a listed chemical (2)

                                       - 10 -
knowing, or having reasonable cause to believe, that the listed chemical would be

used to manufacture a controlled substance. See United States v. Nguyen, 

, 1175-76 (10th Cir. 2005). While not disputing that listed chemicals

were found at his residence, Mr. McGehee contends Mr. Cox’s own testimony

establishes that Mr. Cox brought them there and that he was therefore the one

who knowingly possessed them. In turn, he maintains that there is no evidence

that he knew or had reasonable cause to believe the listed chemicals would be

used to manufacture methamphetamine.

      Because the listed chemicals were not in Mr. McGehee’s actual possession,

we analyze whether he had constructive possession over them. See United States

v. Scull, 

, 1284 (10th Cir. 2003). In order for an individual to

constructively possess property, he must knowingly have the power to exercise

dominion or control over it. United States v. Lopez, 

, 1212 (10th

Cir. 2004). In some instances, “[e]xercising dominion and control over a

residence where contraband is concealed may constitute constructive possession

of the narcotics.” United States v. Parrish, 

, 1296 (10th Cir. 1991),

abrogated on other grounds by United States v. Wacker, 

(10th Cir.

1996). “In cases involving joint occupancy of a place where contraband is found,

mere control or dominion over the place in which the contraband is found is not

enough to establish constructive possession.” United States v. McKissick, 

, 1291 (10th Cir. 2000). Rather, the government is required to present

                                       - 11 -
“‘direct or circumstantial evidence to show some connection or nexus individually

linking the defendant to the contraband.’” 

States v.

Valadez-Gallegos, 

, 1262 (10th Cir. 1998)). That is, the

government must present “some evidence supporting at least a plausible inference

that the defendant had knowledge of and access to the . . . contraband.” 

omitted). The government has satisfied these standards.

      While there is some dispute as to whether Mr. McGehee jointly occupied

his residence with others, we need not make that specific determination because

sufficient evidence establishes the requisite nexus between Mr. McGehee and the

listed chemicals. The record shows that the listed chemicals were found in plain

view throughout Mr. McGehee’s residence and the outbuildings on his property.

A reasonable jury could certainly conclude that Mr. McGehee had knowledge of

these chemical and access to them. But perhaps more significant to our

determination is a portion of Mr. Cox’s testimony not stressed by Mr. McGehee.

Though Mr. Cox did indeed testify that he brought the listed chemicals at issue to

Mr. McGehee’s residence, he prefaced that testimony by explaining that he did so

on Mr. McGehee’s behalf. See II Tr. at 486-87. That is, Mr. Cox testified that he

was acting as Mr. McGehee’s agent and that the chemicals belonged to Mr.

McGehee. See 

this evidence was sufficient to link Mr.

McGehee to the listed chemicals. We also reject Mr. McGehee’s position that

there is no evidence he knew or had reasonable cause to believe the listed

                                       - 12 -
chemicals would be used to manufacture methamphetamine. The evidence

discussed supporting the conspiracy and attempt counts certainly provide a

sufficient evidentiary basis to support the jury’s reasonable finding to the

contrary.

     D. Maintaining a Place for the Purposes of Manufacturing, Distributing,
and Using Methamphetamine and Dilaudid (Hydromorphone)

      Mr. McGehee claims that the government failed to provide sufficient

evidence that he maintained a place for the purpose of manufacturing,

distributing, and using methamphetamine and dilaudid. He draws our attention to

the language of Count 4 of the indictment, which charged him with “maintain[ing]

a place for the purpose of manufacturing, distributing, and using controlled

substances, to include but not limited to methamphetamine and dilaudid

(hydromorphone).” R. Doc. 27 at 4. He appears to contend that the express

language of Count 4 required the government to prove that he maintained a place

for the purpose of “manufacturing, distributing, and using both methamphetamine

and [d]ilaudid.” Aplt. Br. at 21.

       Though Count 4 of the indictment used the conjunction “and,” the jury

was properly instructed that in order to convict Mr. McGehee under 21 U.S.C. §

856(a)(1), the government was required to prove beyond a reasonable doubt that

he knowingly maintained a place for the purpose of manufacturing, distributing,

or using controlled substances. See R. Doc. 51 at 35; 21 U.S.C. § 856(a)(1);


                                        - 13 -


. “It is hornbook law that a crime denounced in the statute

disjunctively may be alleged in an indictment in the conjunctive, and thereafter

proven in the disjunctive.” United States v. Gunter, 

, 868-69 (10th

Cir. 1976); United States v. Pauldino, 

(10th Cir. 1971). “[I]t is

generally accepted procedure to use ‘and’ in an indictment where a statute uses

the word ‘or’ because this assures that defendants are not convicted on

information not considered by the grand jury.” United States v. Earls, 

, 1327 (10th Cir. 1994). “Moreover, it is ‘entirely proper’ for the district

court to instruct the jury in the disjunctive, though the indictment is worded in the

conjunctive.” 

the next inquiry is whether the government provided

sufficient evidence to support a jury’s reasonable inference that Mr. McGehee

engaged in any of the statutorily proscribed conduct—manufacturing, distributing,

or using—as to either controlled substance—methamphetamine or

dilaudid—identified in the indictment and jury instruction.

       As discussed, Mr. Cox testified that Mr. McGehee continuously cooked

methamphetamine during the three months they lived together. And the testimony

of Agents Johnson and Beaver relating to the evidence obtained from Mr.

McGehee’s residence and the outbuildings on his property indicated that

methamphetamine continued to be manufactured there. In fact, numerous seized

items tested positive for methamphetamine and precursor chemicals. Taking the

evidence with all the reasonable inferences to be drawn therefrom most favorably

                                        - 14 -
to the government, the evidence was sufficient to warrant Mr. McGehee’s

conviction for maintaining a place for the purpose of manufacturing

methamphetamine.

       E. Possession of Methamphetamine With Intent to Distribute

       Mr. McGehee claims that the government failed to provide sufficient

evidence that he possessed methamphetamine with an intent to distribute. He

maintains that the lab results prepared and testified to by Oklahoma State Bureau

of Investigation Criminalist Michael Childers did not establish a specific quantity

of methamphetamine or substance containing a detectable amount of

methamphetamine. He further maintains that any methamphetamine that may

have been present at his residence was of insufficient weight to suggest an intent

to distribute.

       Mr. McGehee’s argument does not fare well when considering what the

government must prove under 21 U.S.C. § 841(a)(1) and what the record evidence

shows. To establish a violation of § 841(a)(1), the government must prove

beyond a reasonable doubt that “the defendant knowingly possessed a controlled

substance with the intent to distribute.” United States v. Hooks, 

,

1531 (10th Cir. 1986) (citations omitted). Here, Count 5 of the indictment

charged Mr. McGehee with knowingly and intentionally possessing a mixture or

substance containing a detectable amount of methamphetamine with the intent to

distribute. See R. Doc. 27 at 5. He was not charged with, and the government

                                        - 15 -
was not required to prove, possession of a specific quantity of either

methamphetamine or a substance containing a detectable amount of

methamphetamine.

      The determination of a substance’s quantity is not, of course, irrelevant in

cases such as this because a defendant’s “intent to distribute” may be inferred

from possession of a large quantity of a substance. United States v. Powell, 

, 1430 (10th Cir. 1992). The rationale for the inference is that the

defendant possessed more of the substance than usual for personal use. 

regard, our review of the record reveals that—contrary to Mr. McGehee’s

contention—Mr. Childers testified at trial that Mr. McGehee possessed

approximately 49 kilograms of a mixture or substance containing a detectable

amount of methamphetamine. See III Tr. at 633. A jury could reasonably

conclude that such a quantity was more than usual for personal use and infer an

intent to distribute. The additional evidence discussed above lends even further

support to that inference. We therefore hold that a reasonable jury could

conclude that Mr. McGehee possessed a controlled substance with the intent to

distribute.

      F. Possession of a Firearm by a Convicted Felon

      Mr. McGehee claims that the government failed to provide sufficient

evidence that he possessed a firearm after felony conviction. To obtain a

conviction under 18 U.S.C. § 922(g)(1), the government has to prove beyond a

                                        - 16 -
reasonable doubt that (1) the defendant was convicted of a felony; (2) the

defendant thereafter knowingly possessed a firearm; and (3) the possession was in

or affecting interstate commerce. United States v. Wilson, 

, 779

(10th Cir. 1997). Mr. McGehee focuses his challenge on the second element only.

      Proof of actual possession is not required to support a conviction under

§ 922(g)(1); constructive possession is sufficient. See 

“[i]n cases

involving joint occupancy of a place where contraband is found . . . the

government is required to present direct or circumstantial evidence to show some

connection or nexus individually linking the defendant to the contraband.”

McKissick, 

(citations and quotations omitted). That is, the

government must present “some evidence supporting at least a plausible inference

that the defendant had knowledge of and access to the . . . contraband.” 

      Mr. McGehee claims evidence is lacking that he knew there was a firearm

in his residence at any time, much less on the date identified in the

indictment—on or about December 4, 2003. We disagree. The firearm

underlying Mr. McGehee’s § 922(g)(1) conviction is the .32 caliber Colt semi-

automatic pistol recovered from his home and subsequently tendered to law

enforcement by Mr. Cox. At trial, Mr. Cox testified that Mr. McGehee was the

owner of this firearm and that he observed Mr. McGehee carrying it during their

many methamphetamine deliveries. Mr. McGehee contends that Mr. Cox’s

                                        - 17 -
testimony is insufficient to establish his possession, lodging what appears to be an

attack on Mr. Cox’s credibility. See Aplt. Br. at 23. We recognize, of course,

that Mr. Cox’s past misdeeds and self-interest bear on his credibility, but that

determination was for the jury. See Hien Van 

. Given our

standard of review, Mr. Cox’s testimony was sufficient to establish that Mr.

McGehee had actual possession of the firearm during the summer Mr. Cox lived

with him. In addition, the specific “on or about” date identified in the indictment

is supported by the evidence. Though the December 4 search of Mr. McGehee’s

residence failed to uncover the firearm at issue, based on Mr. Cox’s testimony

that he retrieved the firearm from the location Mr. McGehee typically stored

it—inside a living room chair—the jury could reasonably infer that Mr. McGehee

constructively possessed it on or about that date.

      G. Carrying a Firearm During and in Relation to a Drug Trafficking
Felony and Possession of a Firearm in Furtherance of a Drug Trafficking Felony

      Last, Mr. McGehee claims that the government failed to provide sufficient

evidence that he carried a firearm during and in relation to a drug trafficking

felony or possessed a firearm in furtherance of a drug trafficking felony.

Common to either means of conviction under 18 U.S.C. § 924(c)(1)(A) is the

possession of a firearm. See 

(“any person who, in furtherance

of any [crime of violence or drug trafficking crime ], possesses a firearm . . .”);

United States v. Durham, 

, 1335 (10th Cir. 1998) (“The ‘carry’


                                         - 18 -
prong of § 924(c)(1)(A) has two elements: ‘possession of the weapon through the

exercise of dominion or control; and transportation of the weapon.’”). Mr.

McGehee again focuses his challenge on this element only and attacks the

credibility of Mr. Cox’s testimony relating thereto. As before, we reject Mr.

McGehee’s challenge to Mr. Cox’s testimony based on credibility. See Hien Van

. As such, Mr. Cox’s testimony that Mr. McGehee carried

the firearm at issue during their many drug deliveries provided a sufficient basis

for a reasonable jury to conclude that he violated 18 U.S.C. § 924(c)(1)(A).

II. Sentencing Issues

      A. Prior Felony Drug Conviction

      Mr. McGehee challenges the district court’s application of the 240-month

mandatory minimum sentence established by 21 U.S.C. § 841(b)(1)(A) to Counts

1 and 2. He maintains that his conviction in Texas for Failure to Pay Marihuana

Tax—the prior conviction used by the district court to determine § 841(b)(1)(A)’s

applicability—constitutes a conviction for a revenue offense rather than a felony

drug offense. Reviewing the legality of his sentence de novo, United States v.

Price, 

, 1446 (10th Cir. 1996), we disagree.

      Under § 841(b)(1)(A), the government is required to show that the

defendant was convicted of a “felony drug offense.” Section 802(44) defines the

term “felony drug offense” to include “an offense that is punishable by

imprisonment for more than one year under any law . . . of a State . . . that . . .

                                         - 19 -
restricts conduct relating to . . . marihuana . . . .” (emphasis added). Although

the statute does not define what constitutes a “restriction,” reference to Webster’s

dictionary provides adequate elucidation of its ordinary meaning. See, e.g.,

Arthur Andersen LLP v. United States, 

, 2135-36 (2005)

(referencing Webtster’s to define the words “knowingly” and “corruptly” as used

in 18 U.S.C. § 1512(b)); United States v. Bazile, 

, 1207 (10th Cir.

2000) (calling on Webster’s to discern the meaning of the word “required” as

used in U.S.S.G. § 2K2.4(a)). In Webster’s, a “restriction” is defined as “a

regulation that restricts or restrains,” or “a limitation on the use or enjoyment of

property or a facility.” Webster’s New Collegiate Dictionary 1006 (9th ed. 1991).

      The language of § 841(b)(1)(A) clearly covers Mr. McGehee’s prior

conviction in Texas. Early on, the Supreme Court, in M’Culloch v. Maryland, 

, 431 (1819), observed that a power to tax carries with it a power to

destroy. This principle—though made in reference to the Federal government’s

supremacy over the states—rings true here. Mr. McGehee was convicted in 1992

of violating Texas Tax Code Ann. § 159.201 (1989), which provides: “A dealer

commits [a third degree felony] if the dealer possesses [marihuana] on which the

tax imposed by this chapter has not been paid.” The Texas Tax Code defines

“dealer” as “a person who in violation of the law of [Texas] imports into [Texas]

or manufactures, produces, acquires, or possesses in [Texas] . . . more than four

ounces of a taxable substance consisting of or containing marihuana.” 

-
§ 159.001 (emphasis added). But notably, the Texas Tax Code excepts from

taxation, “[t]he possession, purchase, acquisition, importation, manufacture, or

production of [marihuana] . . . if the activity is authorized by law.” 

(emphasis added). Thus, while ostensibly a revenue measure, § 159.201

discourages the widespread (unlawful) use of marihuana by imposing a tax on

persons who—in violation of Texas law—possess, purchase, acquire, import,

manufacture, or produce it. That is, § 159.201 certainly restricts (i.e., regulates

or limits) conduct relating to marihuana because in order to be in compliance with

Texas law, the marihuana related activity (in whatever form, e.g., possession,

acquisition, importation) must be lawful or a tax will be levied, non-payment of

which will result in a third-degree felony. No matter how slight, this is a

restriction on conduct relating to marihuana.

      Mr. McGehee also argues that Failure to Pay Marihuana Tax cannot be a

“felony drug offense” because a person in Texas can be convicted of a tax code

violation with regards to marihuana, as well as a possession of marihuana

violation, without invoking double jeopardy concerns. We see no merit in this

argument. A state, as well as the federal government for that matter, may employ

a myriad of statutory devices to restrict conduct relating to marihuana. To that

end, a state may decide to enact a law that imposes severe criminal liability on

persons unlawfully possessing marihuana. Or, it may pass a law that requires

such persons to pay a tax on the marihuana so possessed and make its non-

                                         - 21 -
payment a third-degree felony. But a state’s decision to do one or the other, or

both, in no way alters the conclusion that such laws restrict conduct related to

marihuana, 21 U.S.C. § 802(44), and that a felony conviction resulting from

violative conduct is a felony drug conviction for the purposes of § 841(b).

      Other circuits have reached similar conclusions when addressing marihuana

tax cases. See, e.g., United States v. Trevino-Rodriquez, 

, 536 (8th

Cir. 1993) (holding that a conviction for the offense of possessing more than

twenty-eight grams of marihuana without affixing thereto the appropriate indicia

of tax payment, a violation of Kansas Statutes Ann. § 79-5208 (1989), constituted

a prior felony drug offense within the meaning of 21 U.S.C. § 841(b)(1)(A));

United States v. Truelove, 

, 983 (4th Cir. 1975) (holding that a

conviction for the offense of transporting untaxed marihuana, a violation of the

Marihuana Tax Act of 1937, was a prior conviction for purposes of sentencing

under an earlier, and less comprehensive, version of § 841(b)(1)(A)). Mr.

McGehee presents no persuasive authority to the contrary. Thus, we conclude

that his Texas felony conviction was a prior felony drug offense within the

meaning of 21 U.S.C. § 841(b)(1)(A) and that the district court did not therefore

err in applying the 240-month mandatory minimum to Counts 1 and 2.

      B. Drug Quantities

      Mr. McGehee’s final contention is that the district court’s drug quantity

calculation giving rise to his guideline offense level of 34 was impermissibly

                                        - 22 -
speculative and grossly overestimated. “‘We review the district court’s

calculation of drug quantities for the purpose of sentencing for clear error. We

will reverse only if the district court’s finding was without factual support in the

record or we are left with the definite and firm conviction that a mistake has been

made.’” United States v. Ryan, 

, 1273 (10th Cir. 2001). The

government has the burden of proving the quantity of drugs for sentencing

purposes by a preponderance of the evidence. 

actual drugs

underlying a drug quantity determination are not seized, the trial court may rely

upon an estimate to establish the defendant’s guideline offense level so long as

the information relied upon has some basis of support in the facts of the particular

case and bears sufficient indicia of reliability.” United States v. Dalton, 

, 1251 (10th Cir. 2005) (internal quotations omitted). “However, the ‘need

to estimate drug quantities at times is not a license to calculate drug quantities by

guesswork.’” 

between a number of plausible estimates of

drug quantity, none of which is more likely than not the correct quantity, a court

must err on the side of caution.” United States v. Richards, 

, 469

(10th Cir. 1994) (internal quotations and alterations omitted). Finally, we defer

to the district court when reviewing the credibility of witnesses on whose

testimony the district court relies in making its drug quantity factual findings.

United States v. Nieto, 

, 1469-70 (10th Cir. 1995)

      The PSR relied upon and adopted by the district court in setting Mr.

                                        - 23 -
McGehee’s guideline offense level estimated that he was responsible for a total of

3816.4824 kilograms of marihuana equivalent. 3 This drug total was calculated

based on the sum of the following:


!     2736.48 kilograms of marihuana equivalent: According to the trial
      testimony of Mr. Cox, he lived with Mr. McGehee for a three month period
      in 2003 during which he was aware that Mr. McGehee was manufacturing
      between four to eight ounces of methamphetamine a week. “Using the
      most conservative, four (4) ounce estimate, manufacturing during a three
      month (twelve week) period would result in a total of forty-eight (48)
      ounces or (1360.8 grams) of methamphetamine manufactured.” In addition
      to the 7.44 grams of methamphetamine that was recovered during the
      execution of the search warrant, Mr. McGehee was responsible for 1368.24
      grams of methamphetamine or 2736.48 kilograms of marihuana.

!     1080 kilograms of marihuana equivalent: Law enforcement recovered 1620
      tablets (81 boxes) containing at total of 97.2 grams of pseudoephedrine
      during the execution of the search warrant. According to Agent Beaver,
      law enforcement also recovered approximately 30 empty blister packs, with
      each pack previously containing 6 tablets of 60 milligrams pseudoephedrine
      each, for a total of 10.8 grams of pseudoephedrine. As such, Mr. McGehee
      was responsible for 108 grams of pseudoephedrine or 1080 kilograms of
      marihuana.

!     .0024 kilograms of marihuana equivalent: Law enforcement recovered 2.4
      grams or .0024 kilograms of marihuana during the execution of the search
      warrant.

See III R. (PSR at 7-8).

      Mr. McGehee argues that the testimony of Mr. Cox—relating to Mr.


      3
        According to the Sentencing Guidelines, where there are multiple drug
types, the quantities of drugs are to be added by using the appropriate conversion
ratios described in the drug equivalency tables. See U.S.S.G. § 2D1.1, app. n.6.
The differing types of drugs are converted to an equivalent amount of marihuana
to obtain one total drug quantity.

                                       - 24 -
McGehee’s manufacture of 1360.8 grams of methamphetamine or 2721.60

kilograms of marihuana equivalent—was not credible, but was instead inherently

unreliable. He draws our attention to Mr. Cox’s cooperation with the

government, suggesting the possibility that Mr. Cox falsified his testimony as a

means to “get himself out of trouble.” Aplt. Br. at 29. In turn, he maintains that

the district court failed to properly err on the side of caution by not excluding the

drug quantity testified to by Mr. Cox. Accordingly, he appears to contend, as he

did before the district court, that the drug quantity attributable to him should total

the equivalent of 1094.8824 kilograms of marihuana, corresponding to a base

offense level of 32 and a guideline range of 151 to 188 months. See Aplt. Br. at

29; II R. (Tr. of Sentencing Hr’g Aug. 25, 2004 at 11).

       After reviewing the record, we are satisfied that the district court’s drug

quantity determination was not clearly erroneous. As noted, we acknowledge that

Mr. Cox does not have a sterling past and did indeed cooperate with the

government in Mr. McGehee’s prosecution. But it is clear the district court was

fully aware of this when it credited his testimony regarding the quantity of

methamphetamine Mr. McGehee manufactured during the three month period they

lived together. In fact, the district court explicitly addressed the credibility of

Mr. Cox’s testimony at the sentencing hearing, noting that:

      In this case, Mr. Cox’s testimony was corroborated by other
      witnesses, as well as by physical evidence recovered during the
      execution of the search warrant, including precursor chemicals,


                                         - 25 -
          manufacturing equipment, and drug notations. During the course of
          this trial, this Court heard the testimony by Mr. Cox, as well as the
          additional evidence offered in this case. I find by a preponderance of
          the evidence that the amount of drugs used in the [PSR] for
          sentencing guideline calculations is credible and reliable. I further
          find that the probation officer relied on those conservative estimates
          and testimony in favor of the defendant, when determining the
          amount of drugs involved.

II R. (Tr. Sentencing Hr’g Aug. 25, 2004 at 12-13). Deferring to the district

court’s credibility assessment of Mr. Cox’s testimony, 

,

we hold that the drug quantity determination was supported by the facts and bears

the requisite indicia of reliability.

          In closing, we note that this case highlights the need for counsel’s

compliance with the Federal Rules of Appellate Procedure and the conscientious

and careful review of written legal materials prior to court submission. Though

we addressed the two sentencing issues raised by Mr. McGehee in the body of his

brief, we note that both were absent from the required “statement of the issues

presented for review.” See Fed. R. App. P. 28(a)(5). Further, while we

thoroughly reviewed the record to ascertain the timing of material events,

counsel’s errors with respect to certain date recitations somewhat confused this

effort.

          While Mr. McGehee’s brief contained these minor problems, to our

consternation, the government’s fared much worse. Most troubling is the

government’s response to the evidentiary issues raised by Mr. McGehee. Counter



                                            - 26 -
to the demands of Fed. R. App. P. 28(b), the government rambles through six

such issues without a single citation to legal authority and without meeting each

challenge directly. Though there is obviously overlapping evidence in this case,

the charges are distinct and each requires analysis and citation to authority. The

conclusory statement that “[t]he evidence was sufficient to support the

convictions herein,” provides little help. Aplee. Br. at 15. Compliance with this

court’s rules is required not only to ensure that one can be readily understood by

opposing counsel and the court, but also to preserve precious judicial resources.

Counsel’s nonchalance in this regard finds no welcome in this court. We hope

that this admonition serves upon counsel ready notice of the problem and the

responsibility to correct it.

       AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                        - 27 -
04-7095, United States v. McGehee

BRISCOE, Circuit Judge, concurring:

      I concur in the judgment, but write separately to focus on McGehee’s

involvement with co-defendant Jason Sloan when assessing the sufficiency of the

evidence to support McGehee’s conviction on Count 2 (attempted manufacture).

      “Sufficiency of the evidence is a legal issue we review de novo.” United

States v. Green, 

, 1272 (10th Cir. 2006). In reviewing the

sufficiency of the evidence, we “ask only whether taking the evidence . . .

together with the reasonable inferences to be drawn therefrom – in the light most

favorable to the government, a reasonable jury could find the defendant guilty

beyond a reasonable doubt.” 

marks omitted).

      Count 2 of the indictment alleged that, “[b]eginning in about the summer of

2003 and continuing until on or about December 4, 2003, . . . McGEHEE and . . .

SLOAN . . . knowingly and intentionally attempted . . . to manufacture 50 grams

or more of methamphetamine” in violation of 21 U.S.C. §§ 846, 841(a)(1) and

(b)(1)(A)(vii). To convict McGehee on this count, the government was required

to prove “two separate elements: (1) the defendant intended to manufacture

methamphetamine; and (2) the defendant engaged in conduct constituting a

substantial step toward the production of the drug.” United States v. Beltz, 

, 1162 (8th Cir. 2004).

      The evidence presented at trial was clearly sufficient to establish these two
elements. With respect to the first element, Daniel Cox testified that, during the

several-month period he worked for McGehee, McGehee was constantly in the

process of manufacturing methamphetamine and, over that period of time, cooked

approximately twenty to thirty batches of methamphetamine. Cox also testified

that McGehee was interested in learning from Jason Sloan how to use the

anhydrous ammonia method to produce methamphetamine. Together, this

evidence was sufficient to establish that McGehee intended to manufacture

methamphetamine. As for the second element, it is clear, based on much of the

evidence described above in the majority’s discussion of the conspiracy

conviction, that McGehee and Sloan had taken a substantial step towards

producing methamphetamine at the time the search warrant was executed.




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