314 F.3d 422 (9th Cir. 2002), 02-30000, United States v. Rosacker

Docket Nº:02-30000.
Citation:314 F.3d 422
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Joseph ROSACKER, Defendant-Appellant.
Case Date:December 26, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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314 F.3d 422 (9th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Joseph ROSACKER, Defendant-Appellant.

No. 02-30000.

United States Court of Appeals, Ninth Circuit.

Dec. 26, 2002

Argued and Submitted Sept. 11, 2002.

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Michael R. Levine, Assistant Federal Public Defender, Portland, OR, for the defendant-appellant.

Michael W. Mosman, United States Attorney, and Frank Noonan, Assistant United States Attorney, District of Oregon, Portland, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-01-00137-ALH.

Before T.G. NELSON, GRABER, and FISHER, Circuit Judges.

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OPINION

T.G. NELSON, Circuit Judge.

Rosacker appeals the sentence imposed by the district court after he pleaded guilty to one count of using a communication device to facilitate a drug trafficking offense in violation of 21 U.S.C. § 843(b). The district court sentenced him to the statutory maximum, 48 months. On appeal, Rosacker argues that the district court erred by (1) basing the estimate on an unreliable police laboratory report, and (2) applying the preponderance of the evidence standard rather than the clear and convincing standard in making the drug quantity approximation. 1 We vacate the sentence and remand because we conclude that the police lab report was unreliable. We affirm the district court's use of the preponderance standard.

I. BACKGROUND

On February 10, 2001, Rosacker's mother discovered what appeared to be a drug lab in a shed on her property that Rosacker had been using and reported her discovery to the Yamhill County Sheriff's Office. Law enforcement officers from various agencies searched the shed and found twenty-six plastic bags labeled "Herba Ephedrae" and filled with one pound each of "Ma Huang" tea ("mahuang") and ten empty bags of the same type. The officers also found a five-gallon plastic bucket containing mahuang, two Mason jars containing a three-layered liquid, a funnel containing a coffee filter with an oily brown sludge, a Mason jar with reddish stains, a propane tank, and a pressure cooker with a reddish stain.

The officers searched Rosacker's pickup truck and found a 400 milliliter glass cooker, pH strips, a receipt for the purchase of toluene, denatured alcohol, muriatic acid, two containers of Red Devil lye, some clear plastic tubing, and a book entitled "Secrets of Methamphetamine Manufacture." The officers conducted a walk-through of Rosacker's residence and observed numerous large containers holding mahuang or mahuang-and-liquid mixtures, a twenty-quart cooker containing mahuang and lye being heated on the stove, containers of muriatic acid and denatured alcohol, Red Devil lye, a homemade strainer with tubing leading to a bathtub drain that was surrounded by dark brown stains, another strainer containing mahuang, two buckets connected by rubber tubing, funnels, and a spatula caked with mahuang.

Samples from the shed, the pickup, and Rosacker's residence tested positive for ephedrine and pseudoephedrine. Rosacker told the officers that he was attempting to extract ephedrine from the mahuang in order to make methamphetamine, but he was unsure how to create a "good batch" of the drug. Rosacker pleaded guilty to the charge of using a telephone to facilitate the attempted manufacture of a controlled substance, in violation of 21 U.S.C. § 843(b).

The presentence report ("PSR") stated that Rosacker "may not have been able to [extract] the precursor chemical, pseudoephedrine, from the Ma Huang tea." However, based on a one-page report prepared by the Oregon State Police Forensic Laboratory ("forensic lab report"), the PSR also stated that Rosacker could have produced 80 grams of methamphetamine

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and recommended a base offense level of 32. Rosacker objected to these portions of the PSR and submitted an expert's report that criticized the forensic lab's assumptions, methods and conclusions. Rosacker's expert stated in the report that Rosacker had neither the knowledge nor the equipment necessary to extract ephedrine from mahuang. The expert also stated that "over the course of fifteen years, I have never seen a case where the methamphetamine was made from ephedrine or pseudoephedrine extracted from Ma-Huang tea."

The PSR recommended a sentence of 48 months, the maximum allowed by the statute, 2 because the 80-gram drug quantity estimate corresponded to a guideline range of 108-135 months. Rosacker argued that he could not have produced any methamphetamine from the mahuang, and therefore, the applicable sentencing range was 10-16 months. 3

Applying the preponderance standard, the district court accepted the Government's argument that the applicable guideline range exceeded the 48-month statutory maximum even if Rosacker could have produced only 5 grams of methamphetamine. The court then orally found that "Mr. Rosacker could have produced at least five grams of methamphetamine," and sentenced him to 48 months. 4

Rosacker challenges both the district court's estimate of the quantity of methamphetamine he could have produced and the evidentiary standard the district court applied. This court reviews a district court's interpretation and application of the guidelines de novo. 5 It also reviews de novo whether a district court's method of approximation of the relevant drug quantity conforms to the guidelines. 6 The district court's factual findings are reviewed for clear error. 7

II. RELIABILITY OF THE POLICE FORENSIC LABORATORY REPORT

The state police forensic laboratory report was not sufficiently reliable to support the district court's drug quantity approximation. 8 Drug quantity calculations in the forensic lab report rested on four unsupported assumptions: (A) that 1% of the mahuang was extractable ephedrine or pseudoephedrine, (B) that the ephedrine and pseudoephedrine could be extracted from the mahuang, (C) that Rosacker was personally capable of extracting ephedrine or pseudoephedrine and converting it to methamphetamine, and (D) that 100% of the ephedrine and pseudoephedrine present in the mahuang could be extracted.

A. Assumption of 1% Precursor Content

"[T]he information which supports an approximation must possess 'sufficient

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indicia of reliability to support its probable accuracy.' " 9 In other words, a drug approximation must have a "reliable evidentiary basis." 10 Accordingly, a court " 'may not ... adopt conclusory statements [from the PSR] unsupported by facts or the Guidelines.' " 11

The forensic lab report set forth a "conservative estimate" that 1% of the mahuang could be extracted as ephedrine or pseudoephedrine (collectively, "precursor chemicals"). However, the report supplied no data, rationale, discussion, or any other evidentiary basis in support of the 1% figure. In addition, Rosacker's expert report and the forensic lab report agreed that the precursor chemical content of mahuang varies. Rosacker's expert report--to which the Government did not object and which the district court entered into the record--also stated that the content depends on the particular species of mahuang and ranges from zero to 1%.

The report's characterization of the 1% estimate as "conservative" does not substitute the lack of a "reliable evidentiary basis" for the estimate. "Any estimate--including a conservative one--must be supported by reliable information." 12 Moreover, the characterization of 1% as a "conservative" estimate appears questionable. Rosacker's expert report cited ephedrine/pseudoephedrine content figures ranging from zero to 1%, but none higher than 1%. The Government did not, and does not, dispute this range. It can hardly be said then, that the 1% maximum extraction...

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