U.S. v. Alfaro

• Decision Date: 14 July 2003
• Docket Number: No. 02-50235.,02-50235.
• Citation: 336 F.3d 876
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Nathan ALFARO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.3d 876

UNITED STATES of America, Plaintiff-Appellee, v. Robert Nathan ALFARO, Defendant-Appellant.

No. 02-50235.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2003.

Filed July 14, 2003.

Angela M. Krueger, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Roger W. Haines, Jr., Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Gordon Thompson, Senior Judge, Presiding. D.C. No. CR-01-03000-GT.

Before PREGERSON, TASHIMA and Clifton, Circuit Judges.

OPINION

CLIFTON, Circuit Judge.

Robert Nathan Alfaro was sentenced for having illegally imported certain specified chemicals used in manufacturing a controlled substance. The district court applied a 14-level upward departure that was calculated using a sentencing guideline that did not govern Alfaro's offense. Nor, at the time of the offense, did that guideline cover the chemical for which the departure was applied. Alfaro appeals the sentence, contending that the upward departure was unwarranted, was unreasonable in magnitude, and violated the ex post facto clause. He also submits that the district court acted improperly by calling and examining witnesses at the sentencing hearing. We vacate the sentence and remand for resentencing.

I. BACKGROUND

Alfaro was arrested in September 2001 and charged with having "knowingly and intentionally import[ed ] ... approximately 25.8 kilograms of red phosphorous and 100.25 kilograms of crystal iodine, ... knowing, intending, and having reasonable cause to believe that the chemicals would be used to manufacture a controlled substance," in violation of 21 U.S.C. § 843(a)(7). Alfaro pled guilty pursuant to a plea agreement, acknowledging that he had known the chemicals could be used to make methamphetamine and that he had known the importation was illegal.

The probation officer recommended an upward departure pursuant to U.S.S.G. § 2D1.12, cmt. appl. n. 1, on the ground that Alfaro's importation of iodine was "large-scale." To determine the extent of the departure, the probation officer recommended analogizing to U.S.S.G. § 2D1.11, which governed sentences for offenses involving certain listed chemicals.¹ Iodine was not one of the chemicals listed in the 2000 version of § 2D1.11, but hydriodic acid was. The probation officer therefore recommended converting the amount of iodine that Alfaro had been convicted of importing into an appropriate amount of hydriodic acid for the purpose of applying § 2D1.11.

At the court's request, a DEA chemist testified at sentencing about the manufacture of methamphetamine.² He was examined by the court and cross examined by Alfaro's counsel. He explained that ephedrine and pseudoephedrine are "precursor" chemicals that are incorporated into methamphetamine. Hydriodic acid is used as a reagent to convert the precursor chemicals into methamphetamine, although other reagents may be used instead. The chemist testified that one kilogram of iodine, when reacted with red phosphorus and water, produces 1.7 kilograms of hydriodic acid, so that 100.25 kilograms of iodine could produce approximately 170 kilograms of hydriodic acid.

The district court calculated Alfaro's sentence as follows:

• Per § 1B1.2 and Appendix A of either the 2000 or 2001 Sentencing Guidelines lines, the court determined that § 2D1.12 was the governing guideline for the crime Alfaro had pled guilty to.

• Per § 2D1.12(a)(1) of either the 2000 or 2001 Guidelines, the base offense level was 12 because Alfaro knew or believed the prohibited chemicals were to be used to manufacture a controlled substance.

• Per § 2D1.12(b)(1) of either the 2000 or 2001 Guidelines, the base level was increased by 2, to 14, because Alfaro knew or had cause to believe the prohibited chemicals were to be used to manufacture methamphetamine.

• Per Application Note 1 of § 2D1.12 under either the 2000 or 2001 Guidelines, an upward departure was appropriate because the offense involved a "large-scale" importation of iodine. The court found that Alfaro had imported 110.25 kilograms of iodine,³ which could yield approximately 25 kilograms of methamphetamine.⁴

• To determine the extent of the upward departure, the court used as a guide § 2D1.11 of the 2001 Guidelines, which governed sentencing for having unlawfully distributed, imported, exported, or possessed a listed chemical. Under § 2D1.11 (2001), the base level for importing 376.2 grams or more of iodine, a List II chemical, was 28. Accordingly, the court set Alfaro's upward departure for "large-scale" importation at 14 levels, which, when added to the base offense level of 14, resulted in a level of 28, or the equivalent of the base level that Alfaro would have received had he been sentenced under § 2D1.11 (2001).

• The court rejected Alfaro's argument that reliance on § 2D1.11 (2001) violated the ex post facto clause because iodine was not specifically mentioned in the 2000 version of § 2D1.11. The court noted that, even though iodine was not specifically mentioned in § 2D1.11 (2000), it was a

List II chemical statutorily. Thus, under the 2000 Guidelines, the court simply would have converted the amount of iodine into the equivalent amount of hydriodic acid to calculate the base offense level under § 2D1.11 (2000) for purposes of determining the magnitude of the upward adjustment. Additionally, the court noted that, under this procedure for calculating the upward adjustment, Alfaro actually received a lesser departure under the 2001 Guidelines (14 levels) than he would have under the 2000 Guidelines (16 levels), eliminating any ex post facto problem.

The court applied downward adjustments of two levels for minor role and one level for fast track. Alfaro's total offense level was 23, and, based on his criminal history category of III, his guideline range was 57-71 months. The court sentenced Alfaro to 57 months of imprisonment followed by 3 years of supervised release.

Alfaro timely appealed.

II. DISCUSSION

A. The Extent of the Upward Departure for "Large-Scale" Importation Was Unreasonable and Violated the Ex Post Facto Clause.

1. Standard of Review.

Alfaro submits that the district court erred in applying the enhancement for a "large-scale" importation of chemicals on the grounds that (1) his importation was not "large-scale," (2) the extent of the departure was unreasonable, and (3) the calculation of the departure violated the ex post facto clause. The standard of review for the first two claims is governed by 18 U.S.C. § 3742(e). There is a potential question as to what version of that statute applies. Section 3742(e) was amended, effective April 30, 2003, by the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. 108-21, § 401, 117 Stat. 650, 670 (2003).⁵ The amendments overruled in part the holding of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). In Koon, the Supreme Court interpreted the previous version of § 3742(e) to require that appellate courts afford "substantial deference" to a district court's decision to depart from the guidelines. See 518 U.S. at 98, 116 S.Ct. 2035. This "substantial deference" meant that a district court's departure decision was reviewed not de novo, but for abuse of discretion. See id. at 99, 116 S.Ct. 2035. The amended statute now requires de novo review in certain situations while continuing to require that appellate courts "give due deference to the district court's application of the guidelines to the facts" in all other situations. See 18 U.S.C. 3742(e) (April 30, 2003).

This case was argued and submitted on April 10, 2003, approximately three weeks before the amendment was enacted and became effective. At that time, it was not anticipated that the statute would be amended, and the parties did not speak to the question of whether the amendment applies to this case in their briefs or at oral argument. We need not and do not resolve that question here, for the amendments make no difference to the outcome of this case. The amendments alter the standard of review for only one issue on this appeal: the district court's decision to depart upward. Under the previous version of § 3742(e), this decision was subject to review for abuse of discretion. See United States v. Thompson, 315 F.3d 1071, 1074 (9th Cir.2002)(citing Koon, 518 U.S. at 99, 116 S.Ct. 2035; United States v Caperna, 251 F.3d 827, 830 (9th Cir.2001)). Under the amended statute, we would review Alfaro's challenge to the departure decision de novo as an argument under subsection (3)(B)(iii) that the departure was "not justified by the facts of the case." See 18 U.S.C. § 3742(e) (April 30, 2003). As explained below, we would affirm the district court's decision to apply the enhancement under either standard. We therefore do not decide in this opinion whether the amended standard applies to this case.

As for the magnitude of the enhancement, the standard of review is unchanged by the PROTECT Act. The pre-amendment standard was abuse of discretion. See United States v. Working, 287 F.3d 801, 806 (9th Cir.2002)(citing Koon, 518 U.S. at 98, 116 S.Ct. 2035). Under the amended statute, Alfaro's challenge to the extent of the departure would constitute an argument under subsection (3)(C) that "the sentence departs to an unreasonable degree from the applicable guidelines range." 18 U.S.C. § 3742(e)(3)(C) (April 30, 2003). The amended statute continues to demand that an appellate court afford "due deference" to determinations made under that subsection. Compare 18 U.S.C. § 3742(e) (April 30, 2003) with 18 U.S.C. § 3742(e) (2000). This language remains the same as before and reflects, with respect...