U.S. v. Bogusz, s. 92-5575

• Decision Date: 28 December 1994
• Docket Number: Nos. 92-5575,92-5595,s. 92-5575
• Citation: 43 F.3d 82
• Parties: UNITED STATES of America, Appellee v. Donald BOGUSZ, a/k/a Bogey, Appellant. UNITED STATES of America, Appellee v. John O'ROURKE, a/k/a Hap, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 82

43 F.3d 82

UNITED STATES of America, Appellee v. Donald BOGUSZ, a/k/a Bogey, Appellant.

UNITED STATES of America, Appellee v. John O'ROURKE, a/k/a Hap, Appellant.

Nos. 92-5575, 92-5595.

United States Court of Appeals Third Circuit.

Argued Aug. 9, 1994.

Decided Dec. 28, 1994.

Glenn A. Zeitz (argued) and Julia S. Ingersoll, Zeitz & Talty, Philadelphia, PA, for appellant Donald Bogusz.

Dennis A. Durkin and David D.F. Lawrence, (argued), Durkin & Durkin, Newark, NJ, for appellant John O'Rourke.

Michael Chertoff, Edna B. Axelrod, and Leslie F. Schwartz, Esquire (argued), Office of U.S. Atty., Newark, NJ, for appellee.

PRESENT: HUTCHINSON and NYGAARD, Circuit Judges, and LUDWIG, District Judge. ^*

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants, Donald Bogusz ("Bogusz") and John O'Rourke ("O'Rourke"), appeal criminal sentences imposed on them by the United States District Court for the District of New Jersey. ¹ The district court sentenced Bogusz to 120 months and O'Rourke to 168 months of imprisonment for their criminal involvement with a methamphetamine laboratory. Because the district court erroneously interpreted the United States Sentencing Guidelines (the "Guidelines"), ² it miscalculated Bogusz's and O'Rourke's sentences. Therefore, we will vacate both their sentences and remand for resentencing.

I. Background

Because this appeal focuses on sentencing, only a summary of the facts material to the sentencing issues is needed. On August 29, 1991, a federal grand jury returned an indictment against twelve individuals, including Bogusz and O'Rourke, charging them with participation in a scheme to manufacture and distribute methamphetamine. Bogusz located and obtained glassware and phenylacetic acid, a methamphetamine precursor, for the methamphetamine production process. O'Rourke served as a "plumber." In that capacity, he unclogged drains that became blocked during the methamphetamine manufacturing process.

Bogusz and O'Rourke received methamphetamine as part of the consideration for their services. O'Rourke received four of the eight pounds of methamphetamine produced while he worked on the pipes and Bogusz got one pound. The methamphetamine produced was described as "sticky" and "like caramel" indicating its poor quality. In fact, Bogusz gave half of his methamphetamine to a co-conspirator and returned the other half because of its poor quality.

On March 17, 1992, Bogusz pled guilty under a plea agreement to a conspiracy to distribute more than two pounds of phenylacetic acid, a listed chemical, knowing that it would be used to manufacture methamphetamine, a controlled substance, in violation of 21 U.S.C.A. Sec. 841(d)(2) (West Supp.1994). On May 14, 1992, after a jury trial, O'Rourke was convicted of a conspiracy to manufacture methamphetamine with intent to distribute in violation of 21 U.S.C.A. Sec. 846 (West Supp.1994) and possession with intent to distribute in excess of one kilogram of methamphetamine in violation of 21 U.S.C.A. Sec. 841(a)(1) (West Supp.1994).

At Bogusz's sentencing, the district court adopted a recommendation in the probation office's Presentence Report (the "PSR") to apply a higher base offense level than the one stipulated in Bogusz's plea agreement. Bogusz and the government had stipulated to a base offense level of 24, applying U.S.S.G. Sec. 2D1.11(d)(3); but the PSR recommended applying U.S.S.G. Sec. 2D1.1 with a base offense level of 34. Using a cross-reference from section 2D1.11(c)(1) to section 2D1.1, the district court decided the base offense level was 34. Because phenylacetic acid is not included in section 2D1.1's Sentencing Table, use of section 2D1.1 required conversion of the phenylacetic acid quantities to those of a substance on the table. The probation officer preparing the PSR converted the eight pounds of phenylacetic acid to two pounds of methamphetamine, the amount of methamphetamine produced from the phenylacetic acid.

The PSR also recommended that sentencing be based upon "methamphetamine (actual)" as opposed to "methamphetamine." ³ The base offense level for two pounds of methamphetamine (actual) under section 2D1.1 was 34. U.S.S.G. Sec. 2D1.1(c)(5) (Drug Quantity Table). This ultimately resulted in Bogusz's 120-month sentence. Sentencing under section 2D1.11(d)(3), with its base level of 24, in accord with the stipulation in the plea agreement, would have resulted in a sentencing range of 51 to 63 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). Applying a two level reduction for acceptance of responsibility and a criminal history category of III to this offense level, the Guidelines indicated that Bogusz should be sentenced to 151 to 188 months of imprisonment. Id. Because the statutory maximum sentence under 21 U.S.C.A. Sec. 841(d) is 120 months, the district court sentenced Bogusz to 120 months. See U.S.S.G. Sec. 5G1.1(a) ("Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence."); see also United States v. Donley, 878 F.2d 735, 741 (3d Cir.1989) ("the underlying statute shall control in case of conflict with the Sentencing Guidelines"), cert. denied, 494 U.S. 1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990).

At O'Rourke's sentencing, the district court again adopted the PSR's recommendation to apply U.S.S.G. Sec. 2D1.1 and again decided that the methamphetamine was methamphetamine (actual). Based on the eight pounds of methamphetamine produced when he worked on the pipes, O'Rourke received a base offense level of 38, see U.S.S.G. Sec. 2D1.1(c)(3), but the district court granted O'Rourke a four point offense level reduction for his mitigating role. See U.S.S.G. Sec. 3B1.2(a). Using a criminal history category of II and an offense level of 34, the Guidelines put O'Rourke in a sentencing range of 168 to 210 months imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). O'Rourke was sentenced to concurrent sentences of 168 months imprisonment on each count. Both Bogusz and O'Rourke filed timely notices of appeal.

II. Jurisdiction and Standard of Review

The district court had subject matter jurisdiction over these criminal cases pursuant to 18 U.S.C.A. Sec. 3231 (West 1985). We have appellate jurisdiction over this consolidated appeal under 28 U.S.C.A. Sec. 1291 (West 1993) (review of final decisions) and 18 U.S.C.A. Sec. 3742 (West 1985) (review of sentences).

Under the Guidelines, we review a district court's findings of fact for the limited purpose of determining whether they are clearly erroneous. United States v. Miele, 989 F.2d 659, 663 (3d Cir.1993); United States v. Belletiere, 971 F.2d 961, 964 (3d Cir.1992); see also 18 U.S.C.A. Sec. 3742(e) (West Supp.1994) (reviewing courts "shall accept the findings of fact of the district court unless they are clearly erroneous"). Findings of fact are clearly erroneous when "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Findings involving mixed questions of law and fact are subjected to a more demanding scrutiny "approaching de novo review as the issue moves from one of strictly fact to one of strictly law." Belletiere, 971 F.2d at 964 (quoting United States v. Murillo, 933 F.2d 195, 198 (3d Cir.1991)). When the essential facts are not in dispute, our review of the district court's interpretation of the Guidelines, like our review of a statute's interpretation, is plenary. See United States v. Rosen, 896 F.2d 789, 790-91 (3d Cir.1990). We must, however, defer to the Sentencing Commission's interpretation of the Guidelines unless "it violates the Constitution or a Federal Statute, or is inconsistent with, or a plainly erroneous interpretation of, that [provision]." Stinson v. United States, --- U.S. ----, ----, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993).

III. Discussion

Bogusz raises four challenges to the district court's sentences. O'Rourke joins with him in two. First, both contend that the district court erred in finding the unanalyzed methamphetamine, upon which their sentencing was based, to be methamphetamine (actual). Second, both argue that the district court erred in tacitly finding that the methamphetamine was Dextro-methamphetamine ("D-methamphetamine") as opposed to Levo-methamphetamine ("L-methamphetamine"). Third, Bogusz argues that U.S.S.G. Sec. 2D1.1 does not apply to violations of 21 U.S.C.A. Sec. 841(d)(2) (West Supp.1994), and that U.S.S.G. Sec. 2D1.11 is the only Guidelines' provision applicable to this offense. Fourth, Bogusz contends that the government is violating its plea agreement with him by arguing for affirmance of the district court's sentence. We will address each challenge in turn.

A. Guidelines' Treatment of Methamphetamine

To apply U.S.S.G. Sec. 2D1.1, a sentencing court must first determine whether the substance in question is methamphetamine or methamphetamine (actual). This determination involves two related issues. We must first consider whether the methamphetamine that Bogusz and O'Rourke helped produce was "pure" methamphetamine, a necessary condition for its classification as methamphetamine (actual), and then the more complex question of whether the government must also prove that the substance is D- or L-methamphetamine.

1. Methamphetamine (Actual)

The difference between methamphetamine and methamphetamine (actual) is highly significant for sentencing purposes: methamphetamine (actual) is subject to an offense level ten times greater than methamphetamine. See U.S.S.G. Sec. 2D1.1, comment. (n. 10) (Drug Equivalency Table) (one gram of methamphetamine (actual) is treated as the equivalent of ten grams of marijuana while one gram of methamphetamine is equivalent to one gram of marijuana); see also United States v. Lande, 40...