U.S. v. Anderson, s. 91-2270

• Decision Date: 22 March 1993
• Docket Number: Nos. 91-2270,91-2293 and 91-2334,s. 91-2270
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Alvin ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 251

987 F.2d 251

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Alvin ANDERSON, Defendant-Appellant.

Nos. 91-2270, 91-2293 and 91-2334.

United States Court of Appeals, Fifth Circuit.

March 22, 1993.

Thomas S. Berg, Roland E. Dahlin, II, Federal Public Defender, Houston, TX, for defendant-appellant.

Jeffery A. Babcock, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant, Joseph Alvin Anderson, appeals (1) his convictions for manufacturing and attempting to manufacture methamphetamine (No. 91-2293), (2) the district court's denial of habeas corpus relief on his conviction for possessing an unregistered silencer (No. 91-2270), and (3) the district court's judgment revoking his probation (No. 91-2334). We affirm on all issues, except one; we vacate the district court's judgment revoking Anderson's probation and remand for resentencing.

I

On February 2, 1990, law enforcement officers executed a search warrant at Anderson's home. The officers seized a number of items from Anderson's residence, including: various quantities of methamphetamine and amphetamine in liquid-paste and powder forms, precursor chemicals, scales, laboratory equipment, counterfeit currency, explosives, and over 100 firearms--none of which were registered to Anderson, and several of which were subsequently determined to be stolen. A recipe for manufacturing methamphetamine and drug ledgers were also seized. In a shed behind Anderson's home, the officers discovered a clandestine laboratory which appeared to be in operation; the officers saw two pots of a liquid substance heating on a hot plate. Anderson was arrested and subsequently charged in a superseding indictment with six counts: (1) manufacture of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1988); (2) attempted manufacture of methamphetamine, in violation of 21 U.S.C. § 846 (1988); (3) using and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (1988); (4) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(1), (2) (1988); (5) possession of an unregistered automatic weapon, in violation of 26 U.S.C. §§ 5861(d) & 5871 (1988); and, (6) possession of a firearm that had an altered serial number, in violation of 26 U.S.C. § 5861(d) & 5871 (1988). At the time of his arrest, Anderson was on federal probation for the possession of an unregistered silencer. In Criminal No. H-90-108-01, Anderson was convicted by a jury on all six counts. However, the district court vacated Anderson's conviction under Count 6.

The district court sentenced Anderson to 120 months imprisonment on Counts 1, 2, 4, and 5 to run concurrently; a mandatory 60 month sentence on Count 3 to run consecutive to the other counts; five years supervised release on Counts 1 and 2, and three years supervised release on Counts 3, 4, and 5 to run concurrently. In addition, Anderson was ordered to pay a $50.00 special assessment on each count, for a total of $250.00. Anderson's probation for the possession of an unregistered silencer was also revoked, and he was sentenced to ten years imprisonment for possession of the silencer, with this sentence to run consecutive to the sentence imposed in Criminal No. H-90-108-01.

In this consolidated appeal, Anderson claims that:

(a) his convictions under Counts 1 and 2 violated the double jeopardy clause, because he could not be convicted of both manufacturing methamphetamine and attempting to manufacture the same;

(b) the district court erred in sentencing him for manufacturing and attempting to manufacture methamphetamine because the government failed to allege the quantity of methamphetamine in the indictment, and the district court improperly used the entire weight of a substance containing only a trace of methamphetamine.

(c) the district court improperly instructed the jury that they could find him guilty of possessing an unregistered firearm if he had component parts of a silencer; and

(d) the district court denied him his right of allocution at his probation revocation hearing.

II

A

In appeal No. 91-2293, Anderson argues that Count 2 (attempt to manufacture methamphetamine) was a lesser included offense of Count 1 (manufacture of methamphetamine), and therefore his multiple convictions and sentences on both counts violated the double jeopardy clause. In general, "attempt is an offense included in the completed crime, and, therefore, cannot support a separate sentence and conviction." United States v. York, 578 F.2d 1036, 1040 (5th Cir.) cert. denied, 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1978); see also Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977) (The double jeopardy clause "protects against multiple punishments for the same offense."). This rule usually applies where multiple convictions and sentences are based on a single act or transaction, ¹ and does not apply where the completed crime is factually distinct from the attempted offense. See United States v. McDonald, 692 F.2d 376, 377-80 (5th Cir.1982) (Where defendant argued that his conviction on two counts of distributing a controlled substance under § 841(a) violated the double jeopardy clause, we held that two separate physical deliveries of a controlled substance, which were motivated by a single financial scheme, constituted two distinct criminal acts subject to consecutive sentences.), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983); cf. United States v. Forester, 836 F.2d 856, 859-61 (5th Cir.1988) (Although we upheld defendant's convictions for attempt to manufacture methamphetamine and possession of P2P with intent to manufacture methamphetamine, we held that defendant could not receive separate sentences for both convictions because they involved successive steps in one manufacturing process.). The manufacture of one batch of methamphetamine is factually distinct from the manufacture of another batch. See United States v. Housley, 907 F.2d 920, 922-23 (9th Cir.1990) (upholding defendant's convictions for manufacturing methamphetamine and attempt to manufacture methamphetamine because the crimes involved two distinct batches of methamphetamine). Therefore, a defendant may receive separate convictions and sentences for manufacturing one batch of methamphetamine and attempting to manufacture another batch. Id.

Anderson did not merely execute steps in manufacturing one batch of methamphetamine as in Forester. Rather, there was evidence that the manufacture of methamphetamine as charged in Count 1 was factually distinct from the attempt to manufacture methamphetamine as charged in Count 2. Anderson had succeeded in manufacturing one batch of methamphetamine. See Record on Appeal, No. 91-2293, vol. 14, at 13 (some quantities of methamphetamine in its final powdered form were seized from Anderson's house). There was evidence that Anderson was attempting to manufacture a second batch of methamphetamine when the search warrant was executed, and it was this attempt that served the basis for Anderson's conviction under Count 2 for attempting to manufacture methamphetamine. Count 2 therefore was not a lesser included offense of Count 1.

Anderson also argues that there was insufficient evidence to support his conviction under Count 2 for attempting to manufacture a second batch of methamphetamine. ² The standard of review for judging the sufficiency of the evidence "is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988). In making this determination, the evidence must be considered "in the light most favorable to the government, giving the government the benefit of all reasonable inferences and credibility choices." Id. To convict Anderson of attempt under 21 U.S.C. § 846 (1988), the government had to prove that he (1) acted with the required criminal intent, and (2) engaged in conduct constituting a "substantial step" toward commission of the substantive offense, "i.e., conduct strongly corroborative of the defendant's criminal intent." United States v. Stone, 960 F.2d 426, 433 (5th Cir.1992).

There was sufficient evidence that Anderson was attempting to manufacture a second batch of methamphetamine when the search warrant was executed. In a shed behind Anderson's house, law enforcement officers discovered a makeshift laboratory, consisting of a heater mantle, ³ two pots on top of a hot plate, ⁴ syrup canisters, ⁵ a condenser, ⁶ a soft drink dispenser, ⁷ an aluminum foil bucket, ⁸ large glass containers, ⁹ canisters possibly containing lye (sodium hydroxide), ¹⁰ and fans for ventilation ¹¹. The DEA chemist testified that the laboratory could be used to manufacture methamphetamine. See Record on Appeal, No. 91-2293, vol. 12, at 24. Furthermore, Agent Lewis testified that, based on his experience, ¹² the laboratory appeared to be a laboratory for manufacturing methamphetamine. See id. vol. 10, at 3-69. Some of the law enforcement officers who executed the search warrant testified that, upon entering the shed, they noticed that the hot plate was on, see id. vol. 9, at 75, 103-04, and smelled the distinct odor of methamphetamine emanating from the two pots that were on the hot plate, see id.; id. vol. 10, 3-116, 3-129. In addition, the officers found recipes for manufacturing methamphetamine in Anderson's house, as well as P2P, a precursor chemical used in manufacturing methamphetamine. See id. vol. 14, at 9, 18, 20. In light of the evidence, a trier of fact could have found Anderson guilty beyond a reasonable doubt of attempting to manufacture methamphetamine. We therefore...