U.S. v. Hoster, 92-8223

Citation988 F.2d 1374
Decision Date07 April 1993
Docket NumberNo. 92-8223,92-8223
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Keith Vernon HOSTER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Scott M. Anderson, Dallas, TX, for defendant-appellant.

Mark Stelmach, Richard L. Durbin, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

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

Before WISDOM, * GARWOOD and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Keith Vernon Hoster (Hoster) pleaded guilty to one count of possession, with intent to distribute, of an unspecified amount of amphetamine. He was sentenced under the Sentencing Guidelines both on the basis of the amount of the amphetamine involved in the subject transaction and on the basis of a quantity of a precursor chemical, phenylacetic acid, also involved in the transaction that was treated as conduct relevant to the charged offense. He appeals on various issues. Because the district court miscalculated the effect of the phenylacetic acid on Hoster's base offense level, we reverse and remand. We reject Hoster's other contentions on appeal.

Facts and Proceedings Below

On November 14, 1991, Texas Department of Public Safety Narcotic Sergeant Robert Wilkerson and Hill County, Texas, Sheriff's Office Investigator Coy West, working in an undercover capacity, arranged to sell amphetamine and the precursor chemical phenylacetic acid to Hoster and Mark Steven Roberts (Roberts). Hoster had previously negotiated with West over the telephone to purchase one pound of amphetamine and a drum of 110 pounds of phenylacetic acid.

On November 14, Investigator West met Hoster and Roberts at a Diamond Shamrock station in Hillsboro, Texas. Hoster and Roberts arrived at the station independently. Hoster left his vehicle, a white 1990 GMC pickup, and got into West's automobile. After introductions, he gave West a white envelope containing $12,000 in cash, 1 a car title to a 1986 Chevrolet Corvette, and additional papers indicating that Hoster was signing the Corvette over to West. 2 After Hoster paid for the amphetamine and phenylacetic acid, he and West arranged for the transfer of the substances to Roberts, who had been waiting nearby in a 1987 Dodge Shadow.

Roberts, now driving Hoster's GMC pickup, followed West to a Love's Truck Stop in Hillsboro where Sergeant Wilkerson was waiting. West and Roberts entered Wilkerson's vehicle. Upon Roberts' request to see the amphetamine, Wilkerson produced a clear plastic bag containing one pound of amphetamine powder and a set of scales. Roberts examined the texture of the amphetamine and, at the officers' invitation, weighed the package. 3 After indicating that the weight of the amphetamine was acceptable, Roberts declined to inspect the phenylacetic acid, saying "No, let's just throw it in the back of the truck." He took the amphetamine and placed it in the pickup, then returned to Wilkerson's vehicle, presumably to get the drum of phenylacetic acid. At this time, Wilkerson gave a prearranged signal, and Roberts was arrested. The arrest occurred before Roberts unloaded the drum containing the phenylacetic acid from Wilkerson's vehicle.

Hoster had remained behind at the first gas station and did not take part in the events at the Love's station. 4 He was subsequently arrested at another location in Hillsboro.

On December 3, 1991, Hoster was indicted on one count of conspiracy to possess, with intent to distribute, amphetamine, a Schedule II controlled substance. On February 10, 1992, Hoster and the government entered a plea agreement, whereby Hoster agreed to plead guilty to a superseding information in return for the government's agreement to dismiss the indictment. 5 The superseding information charged Hoster with possession, with intent to distribute, amphetamine, and aiding and abetting, all in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

The plea agreement provided that the government would refrain from prosecuting Hoster for any other Title 21 or 18 offenses of which the government was then aware. In addition, the government agreed to seek a section 5K1.1 reduction at sentencing for substantial assistance to authorities.

After a hearing on the plea agreement, the district court accepted the plea and ordered that a presentence investigation report (PSR) be created. In preparing the PSR, the probation officer erroneously classified both the amphetamine and the phenylacetic acid purchased by Hoster on November 14, 1991, as offense conduct, instead of considering the phenylacetic acid as relevant conduct. The PSR calculated Hoster's base offense level by converting both the amphetamine and the phenylacetic acid to a marihuana equivalent and arriving at a base offense level of 34. 6

In addition, the PSR included as relevant conduct certain events occurring in 1989, when law enforcement authorities executed a search warrant in Johnson County, Texas, and discovered an operating clandestine laboratory. The PSR included 25 pounds of amphetamine, as relevant conduct, based upon an estimate of the amount of amphetamine produced at that laboratory each month. Evidence collected from that search implicated Hoster in the manufacturing of amphetamine at the laboratory. No prosecution resulted from this search. 7

Hoster objected to the PSR on several grounds. First, he argued that the 1989 events concerning the amphetamine laboratory were not relevant conduct within the meaning of the Guidelines and that inclusion of that information constituted a violation of the government's agreement in the plea bargain agreement not to prosecute Hoster for any other then-known narcotics violations. Hoster also claimed that the factual statement in the PSR which indicated that he had purchased the 110 pounds of phenylacetic acid on November 14 was incorrect, because the phenylacetic acid was never delivered to him or to his co-defendant Roberts, and because "neither of them exercised care[,] custody, or control over that precurser [sic] chemical at any time." He contended that inclusion of the phenylacetic acid also violated the plea bargain agreement, for the same reason as claimed for the 1989 conduct. Hoster further complained that the PSR should have recommended a two point reduction for acceptance of responsibility. Finally, he challenged the PSR's computation of his offense level. 8

The district court stated its belief that the PSR was correct in considering the 1989 events and in including the 25 pounds of amphetamine as relevant conduct, but nevertheless, "out of an abundance of caution," expressly declined to consider those events in sentencing Hoster. The court did consider the 110 pounds of phenylacetic acid, which were part of the November 14, 1991, transaction, as "relevant conduct." Using the PSR's method of conversion of the 110 pounds of phenylacetic acid, however, the resulting base offense level of 34 would have been the same even had the court included the 25 pounds of amphetamine from the 1989 conduct.

The district court adopted the PSR's calculation of the base offense level as 34, which, with a criminal history category of I, yielded an imprisonment range of 151 to 188 months. The court sentenced Hoster to 170 months' imprisonment and 5 years' supervised release, imposed a fine of $5,000, without interest, and ordered Hoster to pay a special assessment of $50. Hoster filed a timely notice of appeal.


We will uphold a sentence imposed under the Sentencing Guidelines so long as it is the result of a correct application of the Guidelines to factual findings that are not clearly erroneous. United States v. Alfaro, 919 F.2d 962, 964 (5th Cir.1990).

I. Relevant Conduct

In the plea agreement, the government agreed not to prosecute Hoster for any offense, other than the possession of the sixteen ounces of amphetamine to which Hoster pleaded guilty, of which the government was then aware. Paragraph 7 of the agreement provided:

"In exchange for Defendant's plea, the United States Attorney agrees to refrain from prosecuting Defendant Hoster for other Title 21, and Title 18, United States Code, violations of which the United States is now aware, which may have been committed by the Defendant in the Western District of Texas. That is, this action now pending is the extent of the Federal prosecution against the Defendant in the Western District of Texas based upon all facts at hand."

Hoster complains that the district court's inclusion of the phenylacetic acid as relevant conduct for sentencing purposes violated the government's agreement not to prosecute him for additional offenses. 9

The law of this Circuit holds otherwise. Consideration of relevant conduct in the selection of a defendant's sentence within the range of permissible punishment established by Congress for his offense of conviction is not the equivalent of prosecuting the defendant for an offense additional to his offense of conviction. United States v. Kinder, 946 F.2d 362, 367 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1677, 118 L.Ed.2d 394 (1992). In Kinder, the defendants purchased 269 grams of methamphetamine from an undercover officer. They pleaded guilty to a charge of conspiring to possess more than one hundred grams in exchange for the government's promise not to prosecute them for additional offenses. The district court considered seventeen ounces of methamphetamine referred to by one defendant during the investigation for sentencing purposes. This court held that the inclusion of that additional quantity did not violate the plea bargain. "Inclusion of the other 17 ounces in sentencing is not equivalent to prosecution." Id. See also United States v. Rodriguez, 925 F.2d 107 (5th Cir.1991).

The district court did not violate the plea agreement by considering relevant but uncharged conduct in selecting a punishment...

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