F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 18 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-6336 v. (W.D. Oklahoma) RONNY NORRED, JR., (D.C. No. CR-98-31-C)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

On February 19, 1998, a federal grand jury returned a seven-count

indictment against defendant Ronny Norred, Jr. and co-defendant Dana Miller.

This order and judgment is not binding precedent, except under the *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. Counts 1 and 2 charged Norred with knowingly and intentionally distributing

methamphetamine, in violation of

(a)(1); Count 3 charged Norred

with knowingly and intentionally possessing methamphetamine, in violation of

(a)(1); Count 4 charged Norred with knowingly carrying a firearm

during and in relation to a drug trafficking offense, in violation of

(c)(1); Count 5 charged Norred with being a felon in possession of a

firearm, in violation of

(g)(1); Count 6 charged both Norred and

Miller with possessing chemicals and other items with the intent to manufacture

methamphetamine, in violation of

(a)(1); and Count 7 charged

both Norred and Miller with possessing chemicals and other items with the intent

to manufacture methamphetamine within 1000 feet of a school, in violation of

(a).

On April 2, 1998, Miller entered into a plea agreement with the

government. The government agreed to dismiss both counts against her, and

obtain a superseding indictment charging her with using a telephone to facilitate

the distribution of methamphetamine, in violation of

(b). Miller

agreed to plead guilty to this new and lesser offense, and she agreed to fully

cooperate with the government in their prosecution of Norred and others charged

with related offenses. Miller was later sentenced to a term of 48 months’

imprisonment.

-2- On April 9, 1998, Norred also entered into a plea agreement with the

government. Under the terms of the agreement, the government dismissed Counts

4 and 7, and Norred pled guilty to Counts 1, 2, 3, 5, and 6. Norred’s Presentence

Investigation Report (PSR) was issued on June 23, 1998, and it recommended a

sentence of between 235 and 293 months’ imprisonment. This sentence

recommendation was based on an adjusted base offense level of 33 and a criminal

history category of VI.

The adjusted base offense level recommended by the PSR was based on a

determination that Norred was responsible for “3,228.3 grams of

methamphetamine, and 347.6 grams of actual methamphetamine.” IV R. at ¶ 18.

The PSR arrived at this amount of drugs based in part on the testimony of Miller

and another person, both of whom had entered into favorable plea agreements

with the government. Norred lodged objections to the PSR, arguing that the drug

amounts were arrived at in violation of

(c)(2). See United States

v. Singleton ,

(10th Cir. 1998), vacated ,

(10th Cir.

1998), on rehearing en banc ,

(10th Cir. 1999). The district court

overruled Norred’s objections and sentenced Norred to 235 months’ imprisonment

on Counts 1, 2, 3, and 6, and to 120 months’ imprisonment on Count 5, with all

sentences to run concurrently. Norred now appeals from the sentence imposed by

the district court.

-3- Essentially, Norred asked the district court, and is asking us on appeal, to

adopt the reasoning of the vacated panel opinion in Singleton . 1 This we cannot

do. We have, sitting en banc, rejected precisely the reasoning Norred urges on us

here. See United States v. Singleton ,

(10th Cir. 1999) (en banc).

The district court properly overruled Norred’s objections to the PSR.

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

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

1 In his brief, Norred admits that “he has filed an appeal to preserve this issue in the event that the Supreme Court” grants certiorari to review this court’s en banc opinion in Singleton. Appellant’s Br. at 1. A petition for certiorari was filed in the case on March 31, 1999, but the Supreme Court has not yet acted on the petition.

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