135 F.3d 1301 (9th Cir. 1998), 96-10348, United States v. Sprague

Docket Nº:96-10348.
Citation:135 F.3d 1301
Party Name:D.A.R. 1271 UNITED STATES of America, Plaintiff-Appellee, v. Roderic E. SPRAGUE, Defendant-Appellant.
Case Date:February 04, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1301

135 F.3d 1301 (9th Cir. 1998)

D.A.R. 1271

UNITED STATES of America, Plaintiff-Appellee,

v.

Roderic E. SPRAGUE, Defendant-Appellant.

No. 96-10348.

United States Court of Appeals, Ninth Circuit

February 4, 1998

Argued and Submitted Sept. 15, 1997.

Page 1302

Denise Meyer (Project attorney), Dan Roberts and Greg Doll (student interns), Post-Conviction Justice Project, University of Southern California Law School, Los Angeles, CA, for defendant-appellant.

Miquel Rodriguez, Assistant United States Attorney, Sacramento, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, Chief Judge, Presiding. D.C. No. CR-89-0064-WBS.

Before: BROWNING and THOMPSON, Circuit Judges, and MOSKOWITZ, District Judge. [*]

MOSKOWITZ, District Judge:

Appellant Roderic Sprague appeals from an order of the district court denying his motion under 18 U.S.C. § 3582(c)(2) for reduction of sentence. In Sprague's motion for reduction of sentence, he argued that Amendment 484 to the United States Sentencing Guidelines (November 1, 1993), which changed the law governing mixtures of controlled substances with other materials, was applicable to his sentence. The amendment excludes the weight of "materials that must be separated from the controlled substance before the controlled substance can be used," such as packaging materials or waste product, from the calculation of the base offense level under United States Sentencing Guidelines Manual § 2D1.1 ("U.S.S.G."). The district court denied the motion, finding, by a preponderance of the evidence, that the liquid mixtures used by the court in determining the total quantity of methamphetamine were intermediate substances in the methamphetamine production process, not waste materials. Thus, the district court concluded that Amendment 484 did not require reduction of Sprague's sentence. Because Amendment 484 requires the district court to make a determination of the amount of unusable materials that must be separated from the controlled substance before its use, we vacate the decision of the district court and remand for further proceedings.

BACKGROUND

  1. Sentencing and Appeal

    On March 24, 1989, Appellant Sprague was indicted on seven counts relating to his operation of a methamphetamine laboratory on his houseboat. Sprague pled guilty to one count of knowingly and intentionally manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1). The Presentence Report, to which Sprague withdrew his objection, recommended a base offense level of 32 because of the quantities of three seized items: two jars containing liquid mixtures in which the presence of methamphetamine was detected and one pound of ephedrine, the precursor chemical to methamphetamine. At sentencing, Sprague also received a two-level enhancement for possession of dangerous weapons, and a two-level reduction for acceptance of responsibility, resulting in an adjusted offense level of 32. Given Sprague's criminal history category of III, the court sentenced Sprague to 151 months custody and 5 years of supervised release.

    Page 1303

    Sprague's sentence was affirmed on November 8, 1990.

  2. Motion for Reduction of Sentence

    On December 19, 1995, Sprague filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (1994), which provides that a court may reduce a sentence of "a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."

    Sprague argued that his base offense level was inflated by incorrectly adding to the seized ephedrine the entire weight of the two liquid mixtures found in jars that contained traces of methamphetamine and chloropseudoephedrine, an intermediate compound in the thionyl chloride method for producing methamphetamine which Sprague employed. Because both mixtures contained detectable levels of methamphetamine, the Presentence Report had correctly noted that under the Sentencing Guidelines in effect in 1989, the entire amount of the mixtures was to be used in determining the weight of the controlled substance. U.S.S.G. § 2D1.1, at 2.39 n.* (1988) ("Consistent with the provisions of the Anti-Drug Abuse Act, if any mixture of a compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be considered in measuring the quantity."); see Chapman v. United States, 500 U.S. 453, 456-63, 111 S.Ct. 1919, 1922-26, 114 L.Ed.2d 524 (1991). Thus, the probation officer determined that the liquid mixtures in the two jars had converted weights of 1.9 kilograms and 2.8 kilograms. When added to the 0.45 kilograms of ephedrine, which was converted to 0.36 kilograms of methamphetamine, the Presentence Report concluded that the total weight of actual and potential methamphetamine was 5.1 kilograms. This converted to 10.2 kilograms of cocaine-equivalent drug, see U.S.S.G. § 2D1.1, comment. (n. 10) (1988), resulting in a base offense level of 32, id. § 2D1.1, at 2.38 (Drug Quantity Table).

    Amendment 484 to the Sentencing Guidelines, effective November 1, 1993, amended Application Note 1 to Section 2D1.1. Application Note 1 originally provided that "[m]ixture or substance as used in this guideline has the same meaning as in 21 U.S.C. § 841." The amendment added the exception that "[M]ixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can he used." 1 U.S.S.G.App. C, am. 484 (1995). The Guidelines specifically provide that Amendment 484 should be applied retroactively to determine "whether, and to what extent, a reduction in sentence is warranted" on a motion under Section 3582(c). U.S.S.G. § 1B1.10(a) and (c) (1995); see United States v. Innie, 77 F.3d 1207, 1209 (9th Cir.1996).

    The district court found that, although the case was "very close to being a tie," Amendment 484 was inapplicable because "[t]he sentence imposed was based on a preponderance of the evidence establishing, among other things, that the solutions ... were an intermediary solution in the clandestine process of methamphetamine manufacturing" containing a detectable amount of methamphetamine. That is, the trial court found that the liquid mixtures were in the process

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    of becoming methamphetamine and were not waste product mixed with traces of methamphetamine.

    Sprague filed a notice of appeal on August 2, 1996, and the court entered its order denying his Section 3582(c)(2) motion on August 5, 1996. The Appellant filed objections to the August 5 order and moved to reconsider on October 15, 1996. The district court denied this motion for lack of jurisdiction on November 29, 1996.

    STANDARD OF REVIEW

    The denial of a motion under 18 U.S.C. § 3582(c)(2) is reviewed for abuse of discretion. United States v. Townsend, 98 F.3d 510, 512 (9th Cir.1996). "A district court may abuse its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact." United States v. Plainbull, 957 F.2d 724, 725 (9th Cir.1992) (citation omitted), quoted in Kayes v. Pacific Lumber Co., 51 F.3d 1449, 1464 (9th Cir.1995).

    DISCUSSION

  3. Amendment 484

    The arguments to the district court on whether Amendment 484 was applicable to Sprague's sentence focused on whether the liquid mixtures were waste product or intermediary solutions. When the district court found that the mixtures were intermediary solutions, it determined that it was precluded from "reaching the question of ... what the quantity of the controlled substance would be." In framing the issue as whether the mixtures were waste washings or intermediary solutions, however, the parties argued about a distinction that was relevant only under pre-Amendment 484 law.

    In Chapman, the Supreme Court held that "[s]o long as [a mixture] contains a detectable amount [of controlled substance], the entire mixture ... is to be weighed when calculating the [mandatory minimum] sentence" under 21 U.S.C. § 841. 500 U.S. at 459, 111 S.Ct. at 1924. Thus, the Court concluded that because crystals of lysergic acid diethylamide ("LSD") were mixed with the fibers of blotter paper on which it is distributed, the entire weight of the paper and the LSD should be used for sentencing. Several circuits, including ours, subsequently found that the weight of a material mixed with a controlled substance that must be separated from the controlled substance to render the drug useable should not be included in the total weight of "mixtures" or "substances" under 21 U.S.C. § 841 or U.S.S.G. § 2D1.1. 2 In United States v. Robins, 967 F.2d 1387, 1389 (9th Cir.1992), we held that the weight of cornmeal mixed with cocaine should not be used in determining the base offense level because the materials were not a "mixture." We reasoned that, although a mixture literally can be any non-homogenous combination of two substances that retain separate identities, the rationale of Chapman was that where a material is used to dilute the pure controlled substance or acts as a carrier medium to facilitate its distribution, it is rational to set penalties based on the entire weight of the mixture. 967 F.2d at 1389. The Chapman Court,...

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