U.S. v. Caperell

• Decision Date: 10 July 1991
• Docket Number: No. 90-10073,90-10073
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald CAPERELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 975

938 F.2d 975

UNITED STATES of America, Plaintiff-Appellee, v. Gerald CAPERELL, Defendant-Appellant.

No. 90-10073.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 10, 1990.

Decided July 10, 1991.

Bernard G. Little, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Martin R. Boyers, Las Vegas, Nev., for defendant-appellant.

Appeal from the United States District Court for the District of Nevada.

Before SNEED, SCHROEDER and CANBY, Circuit Judges.

CANBY, Circuit Judge:

Gerald Caperell appeals his conviction and sentence for engaging in a continuing criminal enterprise in violation of 21 U.S.C. Secs. 848(b)(1) and (b)(2)(A). Caperell presents three arguments on appeal: (1) the indictment failed to state an offense; (2) the government breached the plea agreement; and (3) the sentencing court violated Caperell's due process rights. We reject these challenges and affirm.

BACKGROUND

Caperell was charged in sixteen counts of a nineteen count superseding indictment. The charges related to Caperell's involvement in the manufacture, distribution and possession of methamphetamine. Pursuant to negotiations, Caperell entered a guilty plea to Count 2 of the indictment. Count 2 originally charged Caperell with engaging in a continuing criminal enterprise during the period from May 1, 1987, to January 25, 1989. According to the terms of the plea agreement, the government amended Count 2 to shorten the duration of the charged criminal enterprise. By the amendment, the criminal enterprise terminated on November 17, 1988.

As part of the plea agreement, the government also agreed that it would "not make a recommendation as to a specific sentence defendant Caperell should receive." Both parties preserved their freedom to assert their positions on the applicable sentencing guideline range. The plea agreement states:

Each party is entitled to contest or defend the evaluation by the United States Probation of each and every sentencing guideline factor (e.g., base offense level, acceptance of responsibility, obstruction of justice, criminal history category ...).

The government also agreed to dismiss the remaining charges against Caperell.

Caperell's sentencing took place on January 12, 1990, and January 16, 1990. Adopting the recommendation of the United States Probation Office, the sentencing court found that the appropriate guideline range was 188 to 235 months. ¹ During the sentencing, the court indicated that the Probation Office did not recommend an increase in the base offense level based on the amount of drugs seized in the conspiracy. Under Sentencing Guideline 1B1.3, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or The prosecutor objected to the Probation Department's conclusion, pointing to Caperell's involvement in a January 1989 scheme to manufacture and distribute additional quantities of methamphetamine. Caperell was charged with involvement in this scheme in Count 16 of the Superseding indictment. Count 16 alleged that between January 2, 1989, and January 25, 1989, while incarcerated after his December 3, 1988, arrest, Caperell attempted to organize his codefendants, including his son, for the purpose of manufacturing 25 pounds of methamphetamine. Caperell's son admitted involvement in the conspiracy and stated that the purpose of the methamphetamine manufacture was to raise money for his father's bail. Referring to this scheme, the prosecutor argued that the additional 25 pounds of methamphetamine provided a basis for upward departure. The prosecutor also urged the court to increase Caperell's sentence on other grounds.

part of a common scheme or plan as the count of conviction.

The court made detailed findings regarding various factors militating toward a high sentence, but did not comment on the prosecutor's argument regarding the January conspiracy. The court observed that many of these factors would justify an upward departure, but that he was employing them only to justify sentencing at the high end of the guideline range. The court then sentenced Caperell to 235 months imprisonment, the top of the guideline range.

ANALYSIS

On appeal, Caperell contends that the district court lacked subject matter jurisdiction over the prosecution because the indictment failed to state a claim. Additionally, Caperell challenges his sentence on the grounds that (1) the government breached the plea agreement by urging the district court to depart upward because of the January conspiracy and (2) the sentencing court violated his due process rights by considering false and unreliable information in the presentence report or by failing to make specific findings of fact. We address each claim in turn.

1. Failure to State a Claim

Caperell argues that the indictment failed to state an offense because methamphetamine is unlawfully included on the schedules of controlled substances. Because Caperell raises this argument for the first time on appeal, we must determine whether we properly may review his claim. We conclude that we may.

We reject the government's argument that Caperell waived this defense by pleading guilty. Although a guilty plea generally waives all claims of constitutional violation occurring before the plea, "jurisdictional" claims are an exception to this rule. See United States v. Montilla, 870 F.2d 549 (9th Cir.1989), amended at 907 F.2d 115 (9th Cir.1990). In Montilla, we stated that, although the dividing line between constitutional claims waived by a plea of guilty and those that survive the plea is not always clear, "[c]laims that 'the applicable statute is unconstitutional or that the indictment fails to state an offense' are jurisdictional claims not waived by the guilty plea." Id. at 552 (quoting United States v. Broncheau, 597 F.2d 1260, 1261 n. 1 (9th Cir.), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979)). Other circuits that have addressed this question have reached the same conclusion. See United States v. Rivera, 879 F.2d 1247, 1251 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 554, 107 L.Ed.2d 550 (1989); O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (per curiam); United States v. Di Fonzo, 603 F.2d 1260, 1263 (7th Cir.1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 672, 62 L.Ed.2d 648 (1980).

The government relies on United States v. Mathews, 833 F.2d 161 (9th Cir.1987), to support its argument. Mathews, however, is not inconsistent with our conclusion. In Mathews, the defendant challenged the factual basis giving rise to the court's jurisdiction. As we explained in Montilla, whether a claim is "jurisdictional," and therefore appealable, depends on whether the claim can be resolved by examining the face of the indictment or the record at the time of the plea without requiring further proceedings. Montilla, 870 F.2d at 552. In Mathews, the resolution of the defendant's claim would have required an evidentiary hearing to determine whether the alleged facts occurred as admitted in the plea agreement. Since Mathews pleaded guilty, the court concluded that he had conceded those facts. Mathews, 833 F.2d at 163-64. In contrast, Caperell does not dispute the factual basis of his plea. Caperell's claim may be resolved by examining the indictment and the relevant statute. Accordingly, we conclude that appellate review of Caperell's challenge is proper. We proceed to the merits of that claim.

Caperell argues that the indictment failed to state a claim because the substance methamphetamine is unlawfully included as a schedule II non-narcotic controlled substance. Caperell reasons that the Attorney General was required to remove methamphetamine from the schedules of controlled substances under 21 U.S.C. Sec. 811(g)(1), because the Federal Drug Administration (FDA) approved the product Rynal, which contains methamphetamine, for sale over the counter without a prescription. We disagree.

Rynal contains methamphetamine with a potency of .11 grams per 50 milliliters. We do not construe section 811 or its legislative history as evincing an intent of Congress that the Attorney General exclude all forms of methamphetamine from the criminal schedules of controlled substances simply because certain inert or nonabusive substances containing methamphetamine have been approved by the FDA for sale over the counter. Section 811(g)(1) provides:

The Attorney General shall by regulation exclude any non-narcotic substance from a schedule if such substance may, under the Federal Food, Drug, and Cosmetic Act, be lawfully sold over the counter without a prescription.

21 U.S.C. Sec. 811(g)(1) (1988) (emphasis added).

Clearly, under section 811, the Attorney General's duty to exempt a substance from the schedules is triggered by the FDA's approval of that substance for sale over the counter without a prescription. This explicit statutory condition has not been satisfied in the present case. As might be expected, Caperell has not shown that the FDA has approved over-the-counter sale methamphetamine as such.

The legislative history confirms our reading of this provision. In discussing the 1984 amendments to section 811, the Senate reported:

Under current 21 U.S.C. Sec. 811(g)(1), the Attorney General may exempt from a schedule of control certain compounds, mixtures, or preparations containing stimulant or depressant substances. Section 507 of the bill amends this provision of current law to clarify and expand the exemption authority of the Attorney General. The compounds, mixtures, and preparations which may be excluded are those that do not present any significant potential for abuse because of the nature of their preparation.

S.Rep. No. 225, 98th Cong., 2d Sess. 265, 1984 U.S.Code Cong. & Admin.News 3182, 3447. ² Unlike the nearly pure methamphetamine manufactured by Caperell, the Attorney General has determined...