Sentence enhancement based on judge-found quantity of pseudoephedrine is constitutional Booker error, but does not necessarily require resentencing

SENTENCING United States v. Brooks, No. 04-3218, ___ F.3d ___ (10th Cir. Mar. 1, 2006)(Kansas). Appeal of convictions and sentence for manufacture of five or more grams of methamphetamine and unlawful possession of firearm during and in relation to drug trafficking crime in violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. § 924(c)(1)(A). HELD: Where jury convicted defendant of possession of pseudoephedrine with reasonable cause to believe that it would be used to manufacture methamphetamine, but made no specific finding with regard to the quantity of pseudoephedrine possessed, district court committed constitutional Booker error by enhancing defendant’s sentence based on judge-found fact that defendant possessed forty-eight grams of pseudoephedrine. Nonetheless, defendant is not entitled to relief because under plain error analysis he failed to show that error affected substantial rights. First, defendant failed to demonstrate to reasonable probability that jury applying reasonable doubt standard would not have found same material facts that judge found by preponderance of evidence because record contained sufficient evidence from which jury could have found forty-eight gram quantity beyond reasonable doubt. Second, no facts in record sufficient to suggest reasonable probability that district court judge would have exercised discretion to depart from sentencing guidelines based on discretionary sentencing factors identified in 18 U.S.C. § 3553(a). Read the opinion here.