U.S. v. Martin

Decision Date21 February 2006
Docket NumberNo. 04-6428.,04-6428.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kevin MARTIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Robert D. Philyaw, Philyaw & Smith PLLC, Signal Mountain, Tennessee, for Appellant. Gregg L. Sullivan, Assistant United States Attorney, Chattanooga Tennessee, for Appellee. ON BRIEF: Robert D. Philyaw, Philyaw & Smith PLLC, Signal Mountain, Tennessee, for Appellant. Perry H. Piper, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: MARTIN, COLE, and GILMAN, Circuit Judges.

GILMAN, J., delivered the opinion of the court.

MARTIN, J. (pp. 639 — 42), also delivered a separate concurring opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge.

In this case of first impression, we consider whether the United States Sentencing Commission failed to comply with Congress's directive when it established ratios to estimate the amount of methamphetamine that can reasonably be manufactured from certain precursor chemicals. The issue arises in the context of Kevin Martin's challenge to the sentence imposed on him after he pled guilty to five counts relating to the manufacture of methamphetamine and the possession of pseudoephedrine as a precursor chemical.

Relying on a Presentence Report (PSR) to which Martin had objected on Sixth Amendment grounds, the district court sentenced Martin to 189 months of imprisonment on each count, with the sentences to run concurrently. This sentence was calculated using a 50% ratio for converting the amount of pseudoephedrine attributed to Martin into the corresponding quantity of methamphetamine. The Sentencing Commission promulgated the conversion ratio in response to a statute enacted in 2000 that required it to establish a table of such ratios "based on scientific, law enforcement, and other data the Sentencing Commission considers appropriate." Pub.L. No. 106-310, § 3651(b)(2), 114 Stat. 1238-39 (2000).

On appeal, Martin argues that (1) the ratio set forth in the Sentencing Guidelines commentary for converting the precursor chemical pseudoephedrine to methamphetamine is invalid both because it does not comply with the statutory mandate and because it is arbitrary and capricious, (2) the district court erred in calculating his criminal history category, and (3) the district court violated his Sixth Amendment rights as interpreted by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Although we hold that the unambiguous language of the statute requires the Commission to utilize both scientific and law enforcement data, we ultimately conclude that Martin has not met his burden of showing that the Commission actually failed to base the conversion ratios on both types of data when it relied on a report prepared by the Drug Enforcement Administration (DEA). We also reject Martin's challenge to the calculation of his criminal history category, but agree that the district court's Booker error entitles him to resentencing. Accordingly, we VACATE Martin's sentence and REMAND the case for resentencing consistent with Booker.

I. BACKGROUND
A. Statutory and Guidelines framework

Congress responded to growing concerns about a "methamphetamine epidemic in America," United States v. Layne, 324 F.3d 464, 468 (6th Cir.2003) (quoting H.R. Rep. 106-878, at 22 (Sept. 21, 2000)), by passing the Methamphetamine and Club Drug Anti-Proliferation Act of 2000 (the Act), Pub.L. No. 106-310, §§ 3601-3673, 114 Stat. 1101, 1227-46 (2000). Supplanting the individualized determination of how much of a controlled substance certain chemicals would yield, see United States v. Hamilton, 81 F.3d 652, 653-54 (6th Cir. 1996), the Act instructed the United States Sentencing Commission to

(1) ... review and amend its guidelines to provide for increased penalties such that those penalties corresponded to the quantity of controlled substance that could reasonably have been manufactured using the quantity of ephedrine, phenylpropanolamine, or pseudoephedrine possessed or distributed.

(2) CONVERSION RATIOS. For the purposes of the amendments made by this subsection, the quantity of controlled substance that could reasonably have been manufactured shall be determined by using a table of manufacturing conversion ratios for ephedrine, phenylpropanolamine, and pseudoephedrine, which table shall be established by the Sentencing Commission based on scientific, law enforcement, and other data the Sentencing Commission considers appropriate.

Pub.L. No. 106-310, § 3651(b), 114 Stat. 1238-39 (2000) (emphasis added).

The Commission responded to the congressional directive by promulgating Amendment 611. In relevant part, Amendment 611 provides a new chemical-quantity table for precursor chemicals like pseudoephedrine and a conversion table for those chemicals. See U.S. Sentencing Guidelines, App. C, Amendment 611 (Nov. 1, 2003). These tables adopt a 50% conversion ratio for pseudoephedrine, such that 2 grams of the chemical is equivalent to 1 gram of methamphetamine. That ratio was inserted into the tables in § 2D 1.1, cmt. n.10, which already established that 1 gram of methamphetamine is to be treated as the equivalent of 20 kilograms of marijuana for sentencing purposes. Since the enactment of Amendment 611, therefore, 1 gram of pseudoephedrine is treated as the equivalent of 10 kilograms of marijuana.

In adopting the 50% conversion ratio for pseudoephedrine, the Commission relied on a report promulgated by the DEA's Office of Diversion Control that was published on the website of the Office of National Drug Control Policy (ONDCP). That report "indicate[d] that the actual yield of methamphetamine from ephedrine and pseudoephedrine is typically in the range of 50 to 75 percent." Proposed Amendments to the Sentencing Guidelines, 66 Fed.Reg. 7962, 7965 (Jan. 26, 2001) (citation omitted); see also U.S. Sentencing Guidelines, App. C, Amendment 611 ("This yield is based on information provided by the Drug Enforcement Agency (DEA) that the typical yield of these substances for clandestine laboratories is 50 to 75 percent."). The DEA report on which the Commission based its conversion ratio is no longer available on the DEA website and is not part of the record in the present case. A document that appears to be the report, however, remains available through another publically accessible website. See Gene Haislip, Methamphetamine Precursor Chemical Control in the 1990's (1996), http://www.erowid.org/ archive/rhodium/chemistry/ dojmeth3.txt (stating that "[a]ctual yield in clandestine labs is typically in the range of 50 to 75 percent") (last visited Feb. 14, 2006).

When a defendant was convicted of an offense relating to the manufacture of methamphetamine from precursor chemicals like pseudoephedrine prior to the passage of the Act in 2000, the district court would rely on expert testimony to approximate the amount of methamphetamine that could be produced from various precursor chemicals under differing laboratory conditions. Experts would testify as to how much methamphetamine the precursor chemicals would yield in a given situation, and the court would base its sentence on that yield calculation. See U.S. Sentencing Guidelines § 2D1.1, cmt. 12 (2003) ("Where there is no drug seizure or the amount seized does not reflect the scale of offense, the court shall approximate the quantity of the controlled substance."); see also, e.g., United States v. Brannon, 7 F.3d 516, 520 (6th Cir.1993) (upholding the district court's estimate of the quantity of methamphetamine, which was based on the affidavits and testimony from a DEA agent and a chemist); United States v. Eschman, 227 F.3d 886, 891 (7th Cir.2000) (rejecting the district court's use of a one-to-one conversion rate for pseudoephedrine where expert testimony contradicted the reliability of that rate). This court required that the findings of the testifying experts be "particularized to individual laboratories," Hamilton, 81 F.3d at 654, a practice that the uniform conversion rate imposed by the Guidelines provision rendered unnecessary.

B. Crimes and conviction

The government charged Martin with five offenses relating to the production of methamphetamine, all of which stem from two incidents in late 2003. On November 24th of that year, Martin, who was on supervised release for previous methamphetamine offenses, rented a hotel room outside of Chattanooga, Tennessee. Law enforcement officers learned of a possible methamphetamine laboratory at the hotel and arrested five people found in a room rented by Christi Kinsey. Among those people was Genea Davis, Martin's girl-friend, who consented to a search of the room that she was sharing with Martin. In that room, the officers discovered a hot plate, Coleman fuel, jars with multi-layered liquids, antifreeze, and a 1,000 milliliter flask—all materials commonly found in methamphetamine labs. Subsequent tests confirmed that at least some of the materials had been used to produce methamphetamine.

The government learned from Davis that several of the articles recovered at the hotel belonged to Rory Shankles, another known formulator of methamphetamine. Davis then led police to Shankles's residence, a location where Davis reported having seen Shankles and Martin "cooking" methamphetamine two days earlier. Police obtained a warrant and searched the premises, recovering 24 empty bottles of pseudoephedrine, an over-the-counter decongestant that is also a raw material used to manufacture methamphetamine. Those bottles, when full, contained approximately 51 grams of pseudoephedrine.

The second incident occurred on December 2, 2003, when police searched an abandoned pickup truck that Martin had borrowed from his friends. Officers found items in the truck similar to those previously discovered during the search of the hotel room...

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