United States v. Mark A. Burgess , 172 F. App'x 125 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2526
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United States of America, *
*
Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Mark A. Burgess, * [UNPUBLISHED]
*
Appellee. *
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Submitted: February 14, 2006
Filed: February 21, 2006
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Before WOLLMAN, FAGG, and ARNOLD, Circuit Judges.
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PER CURIAM.
The Government charged Mark A. Burgess with three counts of possessing
pseudoephedrine knowing it would be used to manufacture methamphetamine. At
trial, the parties stipulated that the weight of the pseudoephedrine seized was 21.6
grams for Count I and 38.88 grams for Count III, for a total of 60.48 grams. With
respect to Count II, a Government law-enforcement witness testified to seizing nine
boxes of pseudoephedrine from Burgess’s pants and a bag of 238 loose pills from
Burgess’s car. The seized pseudoephedrine was admitted under Federal Rule of
Evidence 902(7) (extrinsic evidence of authenticity not required when labels
indicating origin are affixed in the course of business). The labels on the boxes of
pseudoephedrine indicated they contained 17.28 grams, and a visual comparison of
the sealed pseudoephedrine to the 238 identically marked pills indicated they weighed
28.56 grams, for a total of 45.84 grams. The jury convicted Burgess on the three
counts, but made no finding of drug quantity. The district court sentenced Burgess
based on 106.32 grams of pseudoephedrine, the total from all three counts, and we
remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005).
On remand, the district court determined its earlier drug-quantity finding was wrong
because the amount in Count II was not proven beyond a reasonable doubt. Finding
Burgess was responsible for no more than the stipulated 60.48 grams in Counts I and
III, the district court determined the applicable advisory guidelines range was 130 to
162 months. The district court then departed downward from the advisory range to
a sentence of eighty months because of Burgess’s youth, intelligence, and status as a
parent.
The Government argues the district court committed clear error in finding drug
quantity and in requiring proof of quantity beyond a reasonable doubt. We agree.
The Government had the burden to prove drug quantity by a preponderance of the
evidence, not beyond a reasonable doubt. United States v. Vaughn, 410 F.3d 1002,
1004 (8th Cir. 2005); United States v. Ziesman, 409 F.3d 941, 955 (8th Cir. 2005).
Given the district court’s clear error in calculating drug quantity, we reverse and
remand for resentencing. See United States v. Sanders, 341 F.3d 809, 820-21 (8th Cir.
2003). Because drug quantity was clearly erroneous and rendered the advisory
guidelines range incorrect, we do not reach the Government’s argument that Burgess’s
sentence is unreasonable. See United States v. Mashek, 406 F.3d 1012, 1019-20 (8th
Cir. 2005).
We thus reverse and remand for sentencing.
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