U.S. v. Funk, s. 91-3289
| Decision Date | 01 February 1993 |
| Docket Number | Nos. 91-3289,91-3323 and 91-3330,s. 91-3289 |
| Citation | 985 F.2d 391 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Coleen Sue FUNK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Vernon HARDEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lonnie James SHARPE, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lylea Dodson, Des Moines, IA, argued, for appellant Coleen Funk.
Charles Nadler, Cedar Rapids, IA, argued, for appellant David Harden.
Stanley Roush, Cedar Rapids, IA, argued, for appellant Lonnie Sharpe.
Charles W. Larson, Cedar Rapids, IA, argued (Patrick Reinert, Asst. U.S. Atty., on brief), for U.S.
Before McMILLIAN, BOWMAN, and LOKEN, Circuit Judges.
Coleen Sue Funk, David Vernon Harden, and Lonnie James Sharpe, Jr., appeal the sentences they received after pleading guilty to a charge of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846. Defendants contend that the district court 1 erred in determining their base offense levels under U.S.S.G. § 2D1.4 (1989) 2 based upon the most abundant precursor chemical seized at their methamphetamine laboratory. We affirm.
On July 31, 1989, Funk summoned police to the farm she was renting near Rockwell, Iowa, because Sharpe had shot Harden. While investigating the shooting, police detected a strong chemical odor from a shed and contacted the federal Drug Enforcement Agency. DEA agents obtained a warrant and searched the shed, where they discovered a methamphetamine laboratory, 3.6 grams of methamphetamine, and various quantities of precursor chemicals. After defendants were charged in a three-count indictment, each pleaded guilty to Count 3, which alleged that they knowingly conspired to manufacture approximately one kilogram of methamphetamine and thirty grams of phenyl-2-propanone, a controlled substance used in manufacturing methamphetamine.
The sentencing hearing focused primarily on the quantity of methamphetamine attributable to defendants for sentencing purposes. Each side presented an expert who estimated the production capability of defendants' laboratory from the quantities of precursor chemicals seized. The government's expert was DEA agent Scott Masumoto, whose experience included investigating and rendering an opinion as to the capacity of some thirty other methamphetamine laboratories. Defendants' expert was Dr. Peter P. Wickham, a professor of chemistry at Coe College.
Agent Masumoto testified that all materials necessary for the production of methamphetamine were present at defendants' laboratory except aluminum foil and alcohol. The precursor chemicals seized included 1550 grams of phenylacetic acid, 800 milliliters of acetic anhydride, and 700 milliliters of methylamine. Using the methamphetamine manufacturing formulas seized at the farm, both experts then testified as to the quantities of methamphetamine that defendants could have produced from these precursor quantities:
Estimated Methamphetamine Production
Precursor Agent Masumoto Professor Wickham
Phenylacetic acid 250 gr. 222.5 gr
Acetic anhydride 33 gr. 150 gr
Methylamine 40"50 gr. 44 gr
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The district court found that the offense involved a conspiracy to manufacture 253.6 grams of methamphetamine, consisting of the 3.6 grams seized plus the 250 grams Agent Masumoto estimated could be produced from the phenylacetic acid on hand. Based upon this quantity, the district court determined an offense level of 26 for Funk and Harden and 28 for Sharpe. It sentenced Funk and Harden to the mandatory minimum of 120 months in prison and Sharpe to 137 months, the top of his Guidelines range, because of his "lengthy history of violence."
On appeal, defendants argue that the district court erred in using the most abundant precursor chemical, phenylacetic acid, to determine their base offense levels. Defendants contend that this was both an error of law and of fact. We conclude it was neither.
1. Application note 2 to § 2D1.4 required that the sentencing judge approximate the quantity of controlled substance for sentencing purposes when the amount seized does not reflect the scale of the offense: "In making this determination, the judge may consider, for example ... the size or capability of any laboratory involved." We have frequently upheld sentences in which the quantity of methamphetamine was estimated based upon the manufacturing capability of the laboratory using the quantity of precursor chemicals seized. See, e.g., United States v. Stockton, 968 F.2d 715, 719-20 (8th Cir.1992); United States v. Fulcher, 943 F.2d 824 (8th Cir.1992); United States v. Evans, 891 F.2d 686 (8th Cir.1989), cert. denied, 495 U.S. 931, 110 S.Ct. 2170, 109 L.Ed.2d 499 (1990); United States v. Wagner, 884 F.2d 1090, 1097-98 (8th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). Here, the amount of methamphetamine seized (3.6 grams) was far less than the capability of the defendants' laboratory using the precursor chemicals on hand. Therefore, § 2D1.4 required the district court to estimate a larger quantity for sentencing purposes.
Defendants correctly note that the estimate upheld in Fulcher was based upon the least abundant precursor discovered with that methamphetamine laboratory. However, our opinion in Fulcher did not hold that the estimate must be based upon the least abundant precursor, and we decline to adopt such a rule. Estimating the appropriate quantity for sentencing purposes is a fact intensive inquiry that should not be constricted by an inflexible rule as to one relevant factor. See United States v. Olderbak, 961 F.2d 756, 764 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 422, 121 L.Ed.2d 344 (1992). Moreover, limiting the district court's estimating discretion to the least abundant precursor would be contrary to the mandate in § 2D1.4(a) that the offense level for conspiracies of this nature "shall be the same as if the object of the conspiracy ... had been completed."
2. Alternatively, defendants argue that the district court's quantity estimate was clearly erroneous. Defendants contend that the most abundant precursor method yields an unrealistic quantity estimate in this case, first, because they were inexperienced methamphetamine "cooks" who were using primitive equipment in a filthy laboratory, and second, because Sharpe's shooting of Harden...
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