UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSE MARTI GUZMAN,

Defendant - Appellant.	No. 02-4218

(D.C. No. 2:02-CR-141-ST)

(D. Utah)

ORDER AND JUDGMENT*

Before EBEL, HENRY and HARTZ, Circuit Judges.

In this direct criminal appeal Appellant Jose Marti Guzman seeks to contest the sentence he received below after pleading guilty on three counts of distribution of methamphetamine and one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Appellant argues that the presentence report presented to the district court did not identify the purity of the methamphetamine mixtures sold by Appellant in each transaction, and thus provided an insufficient basis to support the district court's calculation of the total amount of pure methamphetamine trafficked by the Appellant. Appellant claims that the district court should instead have used the gross weights of the methamphetamine mixtures, and applied the much lower conversion ratio for such mixtures to arrive at the appropriate "marijuana equivalency" for determining Appellant's offense level under § 2D1.1 of the Sentencing Guidelines.

Discussion

Appellant concedes that he did not file any objections to the drug quantity determination in the presentence report. (Aplt. Br. at 2.) Where counsel fails to object before the sentencing court, we review the application of the sentencing guidelines for plain error. United States v. Easter, 981 F.2d 1549, 1555 (10th Cir. 1992). Plain error review, however, is not appropriate when the alleged error is one contained in the lower court's findings of fact, so that Appellant's failure to object before the district court constitutes a waiver of that issue on appeal. Id. at 1556.

Appellant styles his appeal as challenging the district court's application of the wrong guideline provision in calculating the marijuana equivalency to determine the appropriate base offense level. Even a cursory examination of his argument, however, quickly reveals that Appellant's argument is fundamentally one disputing the district court's conclusions of fact regarding the amount of drugs involved in Appellant's crime. The presentence report accepted by the district court clearly stated that the total amount of pure methamphetamine involved in Appellant's conviction was 355.71 grams. Appellant now claims that this total drug amount was not sufficiently supported by the record before the district court. This is a challenge to the district court's findings of fact, and Guzman's failure to raise it below has waived the issue on appeal.1 Appellant also argues that the district court should have used the Guidelines' alternative marijuana equivalency formula for methamphetamine mixtures of unknown purity. However, since this argument rests entirely on his assertion that the pure drug total was unsupported, our conclusion that he has waived a challenge to the district court's findings on the pure drug amounts necessarily defeats this argument as well.2

Accordingly we AFFIRM the sentence and judgment of the district court.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge