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Click here for the full text of this decision FACTS:On June 1, 2004, a jury found David Henry Treft guilty of knowingly or intentionally manufacturing, distributing, or dispensing, or possessing with the intent to manufacture, distribute, or dispense, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers in violation of 21 U.S.C. � 841(a)(1). The pre-sentence investigation report (PSR) recommended a base offense level of 30 for Treft under the United States Sentencing Guidelines, based on the discovery of 36 empty pseudoephedrine pill packages � which, according to the PSR, contained 77.76 grams of pseudoephedrine when full � in Treft’s trash and 99.9 grams of marijuana in Treft’s home. The PSR further recommended that the court not consider the 4128.2 grams of liquid containing trace amounts of methamphetamine also found in Treft’s home for sentencing purposes pursuant to note 1 of the commentary to � 2D1.1, although the PSR noted that the same liquid should be counted for minimum mandatory sentencing purposes under 21 U.S.C. � 841(b). Treft objected to the PSR’s estimate regarding pseudoephedrine and to its use of facts not found by a jury beyond all reasonable doubt in calculating his sentence. He also requested that the district court grant a two-level adjustment pursuant to U.S. Sentencing Guideline � 2D1.1(b)(6) for satisfying the criteria in � 5C1.2, the “safety valve” provision. The district court rejected Treft’s objections and his request for a safety valve adjustment and sentenced him to the statutory minimum of 10 years’ imprisonment under 21 U.S.C. � 841(b)(1)(A). Treft appealed, challenging his conviction and sentence. HOLDING:Affirmed. According to Treft, 1. The liquid containing traces of methamphetamine found in his home should not have been counted for purposes of 21 U.S.C. � 841, because it was an unmarketable mixture under Chapman v. United States, 500 U.S. 453 (1991), and 2. There is insufficient evidence to support his conviction if that liquid is not counted. The Chapman marketability test does not apply when determining whether a liquid is a mixture or substance containing methamphetamine under �841. Treft made a Blakely objection at sentencing by objecting to the district court’s adoption of the PSR, which used facts � empty pseudoephedrine packages discovered in his trash and marijuana discovered in his home � not found by a jury beyond a reasonable doubt in calculating his sentence. Section 841(b)(1)(A) mandates a minimum sentence of 10 years of imprisonment for a conviction under �841(a) involving 500 grams or more of a mixture or substance containing methamphetamine. Treft was convicted of such an offense. The district court could not have sentenced Treft to anything less than ten years in prison. Thus, any error committed by the court in considering facts not found by a jury beyond all reasonable doubt was harmless. Treft was not eligible for a safety valve adjustment under U.S. Sentencing Guideline �5C1.2 regardless of whether he pleaded guilty or went to trial. The record demonstrates that the district court went to great lengths to determine whether Treft had provided the information and evidence required by �5C1.2(a)(5). More importantly, the parties stipulated on the second day of sentencing that Treft had not provided the government with “all information or evidence regarding Treft’s methamphetamine production/distribution.” OPINION:DeMoss, J.; Higginbotham, DeMoss and Owen, JJ. CONCURRENCE:Priscilla R. Owen, J. “I join the court’s opinion regarding its disposition of the Sixth Amendment and”safety valve’ issues. I additionally agree that based on binding precedent in this circuit, the district court properly calculated the amount of methamphetamine attributable to Treft in imposing the minimum statutory sentence of ten years under 21 U.S.C. �841(b)(1)(A)(viii). However, I write separately because I respectfully suggest that the court, en banc, should reconsider its construction of 21 U.S.C. �841(b)(1)(A)(viii) and its interpretation of the Supreme Court’s decision in Chapman v. United States. How the Supreme Court would apply the rationale of Chapman to the facts before us is far from clear, but it at least seems clear that the”market-oriented approach’ discussed in Chapman applies to methamphetamine the same way that it applied to LSD in Chapman.”

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