U.S. v. Hardin

• Decision Date: 23 January 2006
• Docket Number: No. 05-50312.,05-50312.
• Citation: 437 F.3d 463
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Vernon HARDIN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

437 F.3d 463

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Vernon HARDIN, Jr., Defendant-Appellant.

No. 05-50312.

United States Court of Appeals, Fifth Circuit.

January 23, 2006.

COPYRIGHT MATERIAL OMITTED

Joseph H. Gay, Jr., Asst. U.S. Atty., Mara A. Blatt (argued), San Antonio, TX, for U.S.

Richard Gale Ferguson (argued), Waco, TX, for Hardin.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, and DeMOSS and OWEN, Circuit Judges.

DeMOSS, Circuit Judge:

We recall the mandate, withdraw the opinion filed on December 29, 2005, and substitute the following:

Daniel Vernon Hardin, Jr. pleaded guilty to a one-count indictment for the attempt to manufacture an unspecified amount of methamphetamine and appeals his sentence on the grounds that the district court erred: (1) in denying Hardin's request for appointment, under the Criminal Justice Act (the "CJA"), 18 U.S.C. § 3006A(e), of an expert to testify at sentencing, and (2) in including "bones," a byproduct of methamphetamine production, in the drug quantity attributable to Hardin. We vacate the sentence and remand with instructions for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Hardin was indicted on April 13, 2004 on a single charge of the knowing and intentional attempt to manufacture methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment did not allege a quantity of drugs attributable to Hardin. Based upon a finding of Hardin's indigence, defense counsel was appointed for Hardin under the CJA. Hardin pleaded guilty on July 15, 2004.

The Government filed a factual basis for the guilty plea. The factual basis did not proffer a drug quantity but did set forth the Government's ability to prove the elements of the offense in the event the case had proceeded to trial. In that event, the Government would have shown that law enforcement discovered Hardin, who was wanted for a parole violation on a drug possession charge, near a river in proximity to items believed to be connected to the production of methamphetamine. Law enforcement believed that Hardin and another individual were involved in methamphetamine production, and law enforcement found cans and plastic containers filled with clear liquid that smelled of ether and other materials used in methamphetamine production. The containers were discovered in Hardin's vehicle and in the surrounding area. The factual basis also described Hardin's statement, provided after Hardin received warnings as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in which Hardin admitted his use of methamphetamine on the scene and admitted to stealing methamphetamine from the "cook," the process by which methamphetamine is produced.

When Hardin pleaded guilty, he stated he had no disagreement with the factual basis as submitted by the Government. But Hardin did not admit, at any point in the proceedings, the quantity of methamphetamine attributable to him in connection with his plea to the indictment.

Hardin moved under the CJA for the appointment of Mr. Max Courtney, a chemical expert and lab director, as an expert. See 18 U.S.C. § 3006A(e). In his motion, Hardin argued the majority of the quantity of methamphetamine attributed to him was bones, a byproduct that could not, according to Hardin, be included in the calculation of the drug quantity under the guidelines. Hardin proffered Mr. Courtney's testimony. He stated that Mr. Courtney would testify that bones are a toxic precipitate of methamphetamine production and do not qualify as a mixture or substance containing methamphetamine for purposes of U.S.S.G. § 2D1.1.¹ Under the 1993 amendment to U.S.S.G. § 2D1.1, a material "that must be separated from the controlled substance before the controlled substance can be used" does not qualify as a mixture or substance under the guideline. See U.S.S.G. § 2D1.1., cmt. n.1. Hardin argued that bones are such a material, toxic and unusable with methamphetamine. Although the Government argued a mixture of bones and methamphetamine should be included in the § 2D1.1 calculation, Hardin countered that the amended guidelines did not support so including bones. Hardin identified an apparent conflict between a non-precedential decision of the Fifth Circuit, United States v. Tubbs, 96 Fed.Appx. 257 (5th Cir.2004) (unpublished), and a decision of the Seventh Circuit, United States v. Stewart, 361 F.3d 373 (7th Cir.2004). Based upon his interpretation of the amended guidelines and what he identified as a circuit conflict on the method of calculating the quantity of methamphetamine, Hardin argued for the expert's appointment: (1) to retest the material in question to determine whether it contained an unuseable material; (2) to testify to counter the government's arguments about the nature of bones; (3) to advise defense counsel about cross-examination of the government's witness regarding the nature of bones; and (4) to testify about methamphetamine production and the resulting separable waste, i.e., bones.

The district court did not conduct a hearing on Hardin's § 3006A(e) motion for appointment of an expert. The court denied the motion on August 25, 2004, providing no reasons for the disposition.²

Hardin also submitted written objections to the presentencing report ("PSR"), which recommended a base offense level of 26 because at least 50 grams but less than 200 grams of methamphetamine were involved in the offense.³ Hardin's total offense level was 25, and in combination with a criminal history category V, the applicable guideline range was 100 to 125 months. Hardin objected, in part, that the quantity of methamphetamine attributed to him was too high because it included 171.51 grams of bones, an unusable byproduct of methamphetamine production. Hardin also objected to the application of the guidelines as ultra vires the Sixth Amendment under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).⁴

On February 9, 2005, the sentencing proceedings were held after the Supreme Court announced its opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In overruling Hardin's objection to the inclusion of bones in the drug quantity calculation, the court stated, "[t]he writers of the guidelines have provided that a material or substance containing a detectable amount of controlled substance should be counted and that has been ruled to be the law by the Fifth Circuit." With this ruling, the district court concluded the applicable guideline range was 100 to 125 months' imprisonment.

The district court subsequently sentenced Hardin, under the advisory sentencing scheme applicable after Booker, to 72 months' imprisonment, 3 years' supervised release, a fine of $1000, and a $100 special assessment. The district court gave no reason for its departure from the guideline range, other than the advisory nature of the guidelines, despite this Court's directive that a sentence outside of the applicable guideline range requires an articulation of the reasons supporting the departure. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005).

DISCUSSION

Hardin timely appeals, arguing the district court erred in denying his CJA motion in the absence of a hearing and improperly including bones in the drug quantity calculation under U.S.S.G. § 2D1.1.

I.

First, we must address the applicable standard of review. Hardin argues that our review is de novo, pointing to language from United States v. Patterson, 724 F.2d 1128, 1130 (5th Cir.1984) (stating "where the government's case rests heavily on a theory most competently addressed by expert testimony, an indigent defendant must be afforded the opportunity to prepare and present his defense to such a theory with the assistance of his own expert pursuant to section 3006A(e)"). In Patterson, the panel addressed a question of law: the meaning of "pivotal evidence" under our Circuit's prior caselaw. Id. (citing United States v. Theriault, 440 F.2d 713 (5th Cir.1971)). Such a question of law required de novo review. Id.

But here we do not address the meaning of a term used in the Court's caselaw treatment of the CJA statute. Instead, we address Hardin's challenge to the district court's denial of his CJA motion for expert appointment. We have previously stated that review of the district court's denial of such a motion is review for abuse of discretion. United States v. Castro, 15 F.3d 417, 421 (5th Cir.1994) (finding no abuse of discretion in the denial of a motion under the CJA for psychological examination); United States v. Williams, 998 F.2d 258, 263 n. 10 (5th Cir.1993); United States v. Walborn, 730 F.2d 192, 194 (5th Cir.1984). This Circuit has also spoken of the standard in terms of case-by-case review of the record. "Usually the appellate court will be reviewing a trial court denial of a § 3006A(e) motion in light of only the information available to the trial court at the time it acted on the motion." Theriault, 440 F.2d at 715 (addressing the definition of a "necessary service"). Such a statement is consistent with review for abuse of discretion. We reject Hardin's argument that de novo review applies to the denial of a § 3006A(e) motion.

Here, as before, we review the district court's denial of Hardin's motion for expert appointment under the CJA for abuse of discretion. See Castro, 15 F.3d at 421; Williams, 998 F.2d at 263 n. 10; Walborn, 730 F.2d at 194. In so doing, we conclude on this record that the court abused its discretion in denying Hardin's request for expert appointment.

II.

The CJA provides the procedure both for an indigent defendant to request expert appointment and for the district court to resolve the motion.

Section 3006A(e) provides in relevant part,

Counsel for a person who is financially unable to obtain ... expert ... services necessary for adequate...