U.S. v. Stewart, 03-1857.

• Decision Date: 16 March 2004
• Docket Number: No. 03-1857.,03-1857.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James D. STEWART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 373

361 F.3d 373

UNITED STATES of America, Plaintiff-Appellee, v. James D. STEWART, Defendant-Appellant.

No. 03-1857.

United States Court of Appeals, Seventh Circuit.

Argued November 12, 2003.

Decided March 16, 2004.

Joseph C. Pedersen (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Gregory N. Dutch (argued), Montie, Youngerman & Dutch, Madison, WI, for Defendant-Appellant.

Before BAUER, MANION, and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

James D. Stewart pleaded guilty, pursuant to a plea agreement, to one count of conspiring to manufacture, distribute, and possess with intent to manufacture and distribute methamphetamine in violation of 21 U.S.C. § 846 and § 841(a)(1). Stewart contends that the district court erred in finding him subject to a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(viii) by including in the drug quantity for sentencing purposes 825 grams of a solution generated during a thwarted attempt to produce methamphetamine. Stewart argues that the solution could not be used to calculate drug weight under § 841(b) because it was not usable or consumable. Instead, Stewart argues only the 2.4 grams of actual methamphetamine present in the 825-gram solution should have been counted, in which case he would not be subject to a ten-year mandatory minimum sentence. Because we conclude that the government's evidence does not support inclusion of the entire solution in the drug quantity, we vacate Stewart's sentence and remand for resentencing.

I. BACKGROUND

In March 2002, Stewart and a co-defendant were arrested while in Stewart's vehicle. In the back seat was a thermos containing the telltale ingredients of the pair's attempt to manufacture methamphetamine. At Stewart's sentencing hearing, DEA Special Agent Marc Folven gave conflicting testimony about the contents of the thermos when it was seized. On direct examination he said it contained crushed pseudoephedrine tablets, anhydrous ammonia, lithium strips from batteries, and ether. On cross-examination, however, Agent Folven omitted mention of the ether. The first two ingredients, when combined, together with a catalyst such as lithium, react to form a solution containing methamphetamine. After the reaction is complete, the undissolved solid materials are normally filtered out, and ether is then used as a solvent to separate the solution into two parts — a top layer constituting "methamphetamine base" and the rest liquid byproduct. Agent Folven conceded that Stewart would have needed to take additional steps to produce usable methamphetamine. First, to further process the contents of the thermos into methamphetamine base, Stewart had to filter out the remaining solid materials and separate the liquid byproducts leaving the base. From there, to further process the liquid methamphetamine base into the powdered form typically consumed by methamphetamine users, Stewart had to add hydrochloric acid gas — often made from drain cleaner and salt — to crystallize the methamphetamine base into powder. Following this final stage of processing, the liquid remaining after the methamphetamine base crystalized into powder would be considered waste, but would contain trace amounts of methamphetamine.

Although the record developed by the government is ambiguous, it appears that the investigating agents filtered the solid materials from the contents of the thermos, and weighed only the remaining solution in arriving at the 825-gram figure. A DEA chemist estimated, and both parties stipulated, that the entire 825 grams contained 2.4 grams of pure methamphetamine, which, after processing, Stewart could distribute in powder form. In addition to the contents of the thermos, Stewart and his co-defendant also had with them in the car when they were arrested several bags of fully processed powdered methamphetamine weighing 18 grams total and containing 3.1 grams of pure methamphetamine.

Stewart pleaded guilty to a count alleging that he conspired to manufacture, distribute, and possess with intent to manufacture and distribute 500 or more grams of methamphetamine, but reserved the right to challenge at sentencing the drug amount. For guidelines purposes the district court determined that Stewart's offense involved at least five grams but not more than 20 grams of actual, or pure, methamphetamine and thus calculated his imprisonment range to be 100 to 125 months. See U.S.S.G. § 2D1.1(a)(3), (c)(7). But for purposes of § 841(b) and its mandatory minimums, the district court concluded that the 825-gram solution from the thermos triggered a ten-year mandatory minimum under § 841(b)(1)(A)(viii) because it constituted "500 grams or more of a mixture or substance containing a detectable amount of methamphetamine." As a result, the district court adjusted the guideline range to 120 to 125 months, see U.S.S.G. § 5G1.1(c), and sentenced Stewart to 120 months.

In determining whether Stewart was subject to a mandatory minimum sentence under § 841(b), the district court purported to rely upon United States v. Johnson, 999 F.2d 1192, 1194-96 (7th Cir.1993), in which we held that waste water left over from the production of crack cocaine, even though it held trace amounts of cocaine, could not be used in calculating drug weight under the sentencing guidelines because it "was not marketable and could not in any way be used as a drug." The district court reasoned that, unlike the waste water in Johnson, the entire 825-gram solution should be counted because it could be sold to someone who could either finish processing it into methamphetamine powder, or mix the solution with a soft drink and ingest it directly. The government concedes in its brief, however, that the solution was not ingestible in the form it was seized, and that in concluding otherwise the court apparently misconstrued Agent Folven's testimony. What Agent Folven said is that methamphetamine base can be mixed into a soft drink, but he did not testify that Stewart's solution was methamphetamine base. Indeed, the agent's testimony leaves little doubt that further processing of Stewart's solution would be required to separate the methamphetamine base. The solution could not have been safely ingested because it still contained anhydrous ammonia, a corrosive chemical that can be toxic if inhaled. See United States v. Morrison, 207 F.3d 962, 964 (7th Cir.2000); see also United States v. Innie, 7 F.3d 840, 845 (9th Cir.1993) (liquid contained methamphetamine "along with unreacted chemicals and by-products both of which are poisonous if ingested"); United States v. Jennings, 945 F.2d 129, 137 (6th Cir.1991) (defendants were "attempting to distill methamphetamine from the otherwise uningestable [sic] byproducts of its manufacture").

The government, though, does not clarify whether Agent Folven was also referring to methamphetamine base, rather than to the solution possessed by Stewart, when he testified about whether the solution could be sold to others. The transcript evidences that he meant that methamphetamine base could be sold:

Q. If you could explain. When is the methamphetamine actually produced in any form for the first time that it's produced during this process?

A. It's when the anhydrous ammonia, the lithium strips, and the pseudoephedrine are combined. It starts producing the methamphetamine. I mean, it's not powder form, it's a liquid type of form, but that's when that chemical reaction takes place to produce the methamphetamine.

Q. So, the methamphetamine at that point is in a liquid form?

A. Yes, sir.

Q. So, the methamphetamine, does it have any — in the liquid form, does it have any value, as far as marketability? Could it be sold and used at that point?

A. Yes, sir.

Q. And how is that?

A. There's been people that will buy the liquid meth, also, and people that use the liquid meth out there, also, methamphetamine base. They'll drink it or other various ways to use it that way.

Q. Can it be injected?

A. Probably not in that way. I think it's more or less drank that way.

Q. But you can — you say it does have a market in that stage.

A. Yes, sir.

Q. And did I also hear your answer is that some people might use it in that stage?

A. Yes, sir.

Q. How?

A. It's a very pure form of meth. I've interviewed other users, and they've said that they've drank it before.

Sentencing Tr. at 38-39. If Agent Folven was referring to methamphetamine base throughout this portion of his testimony, then there is no evidence that the solution possessed by Stewart had reached the stage in processing where it could have been sold to others for completion.

The district court also read three opinions from other circuits as holding that when a defendant is caught in the process of manufacturing drugs, the sentencing court can include in the drug weight anything found no matter its stage of completion. Two of the three cases, though, actually reach the opposite conclusion — that what is unusable; i.e., not consumable as a drug, must be excluded in calculating drug weight. See United States v. Newsome, 998 F.2d 1571, 1575-79 (11th Cir.1993) ("the gross weight of `unusable mixtures' should not be equated with the weight of a controlled substance for sentencing purposes"; applying sentencing guidelines); United States v. Sprague, 135 F.3d 1301, 1306 (9th Cir.1998) (drug weight must exclude substances that must be removed to render solution containing methamphetamine usable; applying guidelines). Only one of the cases arguably supports the district court's drug quantity finding. See United States v. Beltran-Felix, 934 F.2d 1075, 1076 (9th Cir.1991) (holding that entire weight of solution containing small amount of methamphetamine should be used to calculate mandatory minimum sentence under § 841(b) even though solution was in early stage of production).

II. DISCUSSION

On appeal Stewart argues that sentencing courts, when applying the statutory...