U.S. v. Innie

• Citation: 7 F.3d 840
• Decision Date: 05 October 1993
• Docket Number: No. 92-50239,92-50239
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick INNIE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 840

7 F.3d 840

UNITED STATES of America, Plaintiff-Appellee, v. Patrick INNIE, Defendant-Appellant.

No. 92-50239.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 8, 1993.

Decided Oct. 5, 1993.

Francis J. James, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Rob B. Villeza, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: WALLACE, Chief Judge, O'SCANNLAIN and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a sentencing court may determine a convicted defendant's offense level based upon the total volume of a liquid mixture containing methamphetamine and whether being an accessory after the fact to murder for hire is a crime of violence under the 1989 Sentencing Guidelines.

I

In 1988, Patrick Innie failed to appear for sentencing after pleading guilty to being an accessory after the fact to the commission of murder for hire in violation of 18 U.S.C. § 3. A warrant was issued for his arrest.

On February 16, 1989, Innie was arrested by the Culver City Police in the parking lot of the West End Gardens Motel in Culver City, California. After his arrest, Innie consented to an interview with federal marshals. Upon being advised of his Miranda rights, Innie told the marshals that he was using his brother's name, that he was staying in room 4 at the motel, that he was driving a 1977 Cadillac, and that he was supporting himself by "cooking meth." He said that there was a black bag with two guns in it by the bed in his motel room. Innie told the marshals that the barrel of one of the guns had been converted from a 10 millimeter to a .45 caliber and that the other gun was a small semiautomatic. He said that there would be methamphetamine in the refrigerator. Innie admitted, in addition, that there was a case in the trunk of the Cadillac which contained a sighting scope and a 10 millimeter gun barrel. Innie also told the marshals that there would be a woman in the room, that he had met her in Las Vegas about a week before, that she only knew him as "Mike" and that she knew nothing about the guns or the drugs.

After receiving Innie's consent, law enforcement officers searched the motel room and the Cadillac. The room was registered to "Clifford Innie (or Winnie)." In the motel room, by the bed, the officers found a black bag containing the guns Innie had described. In the refrigerator and freezer, they found five quart-size glass bottles containing liquid methamphetamine and a glass bottle containing acetone. They also found a serrated spatula, razor blades, litmus paper, a heat lamp, two hot plates, a propane tank, a device for sealing bags, a glass beaker, glass baking dishes, a plastic funnel, and small amounts of marijuana and methamphetamine. In the trunk of the Cadillac, the officers found a tool box containing a sighting scope for a gun and numerous rounds of ammunition. A digital scale was also found in the trunk of the car. In addition, the record indicates that a woman from Las Vegas was in the motel room at the time of the search.

Innie was convicted, after a jury trial, of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) (Count One); use of and carrying a firearm during a drug-trafficking crime in violation of 18 U.S.C. § 924(c) (Count Two); being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Three); and being a fugitive in possession of a firearm in violation of 18 U.S.C. § 922(g)(2) (Count Four). He was sentenced to a total of 420 months in prison.

II

Innie contends that the evidence was insufficient to convict him of possession of methamphetamine with the intent to distribute. ¹ "We review the sufficiency of evidence to support a criminal conviction by viewing the evidence in the light most favorable to the prosecution and determining whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Garza, 980 F.2d 546, 552 (9th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). "When reviewing the sufficiency of the evidence, we must 'assume that the jury resolved all ... matters in a manner which supports the verdict.' " Id. (citation omitted).

The crime of possession with the intent to distribute methamphetamine has three essential elements. See United States v. Ocampo, 937 F.2d 485, 488 (9th Cir.1991). The government must prove beyond a reasonable doubt that the defendant (1) knowingly, (2) possessed the methamphetamine, (3) with an intent to distribute it. See id.; United States v. Penagos, 823 F.2d 346, 350 (9th Cir.1987).

Innie concedes that the evidence was sufficient to show possession. Indeed, he argued before the district court and again in his brief that the evidence was sufficient to convict him of manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1). In any event, the evidence compels his concession. A reasonable jury could readily find, beyond any doubt, that Innie knowingly possessed the methamphetamine. See United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.), cert. denied, 493 U.S. 863, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989); United States v. Castillo, 866 F.2d 1071, 1088 (9th Cir.1988).

Innie argues, however, that the evidence was insufficient to show intent to distribute. His argument is unavailing. The lone case cited by Innie as support for his argument, United States v. Solis, 841 F.2d 307, 309 (9th Cir.1988) (where indictment charged defendant with manufacturing, instruction that jury could convict for possession constituted fatal variance), is inapposite. Moreover, the evidence is more than sufficient to demonstrate that Innie intended to distribute the drug. A jury may infer the intent to distribute a controlled substance from quantity alone. United States v. Smith, 832 F.2d 1167, 1170 (9th Cir.1987). Innie possessed 3388 grams of methamphetamine, enough to produce 33,880 doses. Moreover, "[i]t may reasonably be inferred that an armed possessor of drugs has something more in mind than mere personal use." United States v. Tarazon, 989 F.2d 1045, 1053 (9th Cir.1993) (quoting United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988)). Innie had two guns in his possession. Intent to distribute may also be inferred from the presence of packaging materials. United States v. Martinez, 967 F.2d 1343, 1345 (9th Cir.1992). Officers found a digital scale in the Cadillac and a device for sealing bags in the motel room. Finally, and most fundamentally, during his interview Innie admitted to the marshals, that he was supporting himself by "cooking meth."

Thus, a rational trier of fact could readily find all the essential elements of 21 U.S.C. § 841(a)(1) beyond a reasonable doubt.

III

Innie contends that the district court erred by calculating the base offense level for Count One based upon the entire amount of the liquid mixture containing methamphetamine, rather than the consumable portion, because, at the time of his arrest, "the substance would hardly be marketable or of any consumable quantity." The liquid methamphetamine mixture found in the motel room was four to eight percent pure.

The plain language of the Guidelines clearly requires that "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." U.S.S.G. § 2D1.1 n.* (1988). Moreover, this court has rejected the contention that it is error, in applying the statutorily mandated minimum sentence, for a district court to use the entire weight of a methamphetamine solution that was not yet readily marketable. United States v. Beltran-Felix, 934 F.2d 1075, 1076-77 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 955, 117 L.Ed.2d 123 (1992). Innie argues, however, that we should reconsider both the plain language of the Guidelines and Beltran-Felix in light of the Supreme Court's decision in Chapman v. United States, --- U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).

In Chapman, the Supreme Court held that the "blotter paper customarily used to distribute LSD[ ] is a 'mixture or substance containing a detectable amount' of LSD" under 21 U.S.C. § 841. Id. at ----, 111 S.Ct. at 1925. In reaching that conclusion, the Court noted that

Congress adopted a "market-oriented" approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence. To implement that principle, Congress set mandatory minimum sentences corresponding to the weight of a "mixture or substance containing a detectable amount of" the various controlled substances.... It intended the penalties for drug trafficking to be graduated according to the weight of the drugs in whatever form they [are] found--cut or uncut, pure or impure, ready for wholesale or ready for distribution at the retail level.

Id. at ----, 111 S.Ct. at 1925 (citations omitted). Therefore, the Court concluded that the plain dictionary meaning should be given to the term "mixture." Id. at ----, 111 S.Ct. at 1926. Innie contends, however, that it is irrational to apply the plain language of the Guidelines in this case because to do so would be to create the kind of sentencing disparity that the Guidelines were designed to avoid.

Innie argues that sentencing him based upon the entire amount of the mixture is irrational (1) because had the manufacturing process been allowed to progress to completion, a much smaller amount of pure methamphetamine would have actually been produced and (2) because the mixture, in the form in which it was found, contained only a small amount of...