U.S. v. Hyde, 91-3146

• Decision Date: 09 November 1992
• Docket Number: No. 91-3146,91-3146
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles HYDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1436

977 F.2d 1436

UNITED STATES of America, Plaintiff-Appellee, v. Charles HYDE, Defendant-Appellant.

No. 91-3146.

United States Court of Appeals, Eleventh Circuit.

Nov. 9, 1992.

H. Manuel Hernandez, Longwood, Fla., for defendant-appellant.

Timothy Quinlan, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, COX, Circuit Judge, and GODBOLD, Senior Circuit Judge.

TJOFLAT, Chief Judge:

Appellant Charles Hyde appeals the sentence he received for violating 21 U.S.C. § 841(d)(2) (1988), which criminalizes the possession or distribution of a "listed chemical," here phenylacetic acid, with knowledge that it would be used to manufacture a "controlled substance," here methamphetamine. Pursuant to U.S.S.G. § 2D1.1(a)(3) (Nov. 1, 1990), the district court scored Hyde's base offense level at 36 by calculating the amount of methamphetamine that could have been produced from the phenylacetic acid that Hyde possessed. Through a slightly different analytic route, we reach the district court's result. We therefore affirm Hyde's sentence.

I.

The facts of this case are not in dispute. On July 20, 1990, Hyde prepaid an order for 110 pounds of phenylacetic acid at Sun Scientific Chemical Company in Dania, Florida. Two undercover agents from the Drug Enforcement Administration delivered Hyde's order to Hyde's sister's business. There, Hyde took possession of the phenylacetic acid knowing that it would be resold or used to manufacture methamphetamine. Hyde was arrested on July 26, 1990.

Hyde waived indictment and was prosecuted by information filed by the United States Attorney. The information charged Hyde with violating 21 U.S.C. § 841(d)(2), ¹ by possessing and distributing phenylacetic acid ² with knowledge and reasonable cause to believe that the listed chemical ³ would be used to manufacture methamphetamine, a controlled substance. On November 26, 1990, Hyde pled guilty to violating section 841(d)(2). In his guilty plea, Hyde expressly admitted that he knew the phenylacetic acid he possessed would be used to manufacture methamphetamine. At the sentencing hearing, the district court found that U.S.S.G. § 2D1.1 applied to Hyde's violation of section 841(d)(2). Section 2D1.1(a)(3) predicates a determination of the base offense level on the amount of controlled substance involved in the crime. The court relied on the probation officer's determination that 110 pounds of phenylacetic acid could yield approximately 30 kilograms of methamphetamine, and used this converted figure to arrive at a base offense level of 36 under U.S.S.G. § 2D1.1(c)(4).

Hyde objected to this base offense level, and argued that phenylacetic acid should be scored either (1) as a Schedule III substance under 21 U.S.C. § 812 (1988), with a base offense level of 20, or (2) as the equivalent of phenylacetone/P sub2 P possessed for a purpose other than manufacturing methamphetamine under section 2D1.1's Drug Equivalency Tables, with a base offense level of 26. The district court rejected Hyde's position and held that 36 was the proper base offense level. The court granted a two-level reduction for Hyde's acceptance of responsibility, resulting in an adjusted offense level of 34. The district court sentenced Hyde to 120 months imprisonment, ⁴ the maximum sentence authorized by 21 U.S.C. § 841(d), but less than the 188 to 235 months prescribed by the sentencing guidelines. ⁵

II.

Hyde's appeal of the district court's application of the sentencing guidelines to determine his base offense level for his violation of section 841(d)(2) presents a case of first impression in this circuit. We review de novo all questions of law that arise out of the district court's application of the guidelines. United States v. Shores, 966 F.2d 1383, 1386 (11th Cir.1992). In this part of our opinion, we explain how the sentencing guidelines apply to Hyde's crime. In part III, we consider and ultimately reject Hyde's proffered alternative methods of computing his base offense level.

A.

No sentencing guideline precisely addresses violations of section 841(d)(2) under the version of the sentencing guidelines that applies to Hyde. ⁶ Absent a directly applicable guideline, courts are "required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous." U.S.S.G. § 2X5.1, comment. (backg'd) (Nov. 1, 1990); see also U.S.S.G. § 2X5.1 ("If the offense is a felony or Class A misdemeanor for which no guideline expressly has been promulgated, apply the most analogous offense guideline."). The most analogous guideline contemplated by section 2X5.1 is the guideline that applies to the most analogous statute of conviction. Section 2X5.1 indicates that "the most analogous offense guideline" is determined by analogy of criminal behavior, not analogy of chemicals. The commentary provides that "the type of criminal behavior" is the proper reference for determining guideline analogies. Further, section 2X5.1 instructs that "[i]f there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control." Section 3553(b) instructs that the sentence that is ultimately imposed should relate "to sentences prescribed by guidelines applicable to similar offenses and offenders." (Emphasis added). Ours, then, is a quest to find the most analogous crime. As discussed below, we find that the attempt statute, 21 U.S.C. § 846, is the most analogous statute of conviction to section 841(d)(2).

Violation of section 841(d)(2) presumes that the final product, the controlled substance, has not yet been manufactured. Here, Hyde was convicted of possessing phenylacetic acid, a precursor chemical to methamphetamine, with knowledge that it would be used to manufacture methamphetamine, the final product. To violate section 841(d)(2), possession of a precursor chemical must be coupled with the knowledge that it would be manufactured into a controlled substance. ⁷ Section 841(d)(2) makes an independent crime out of the elements that otherwise would comprise an attempt to manufacture methamphetamine. Section 846 provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." (Emphasis added). By enacting section 846, Congress mandated that attempts be punished as severely as the underlying crime.

Conviction under section 846 for attempt to manufacture methamphetamine requires proof that the defendant intended that methamphetamine be manufactured and an act or omission that amounts to a "substantial step" toward commission of the substantive crime. See United States v. Leopard, 936 F.2d 1138, 1140 (10th Cir.1991). Hyde both had the requisite intent and took a substantial step by purchasing the phenylacetic acid. If section 841(d)(2) did not declare that Hyde's behavior was criminal in and of itself, then Hyde could have been convicted under section 846 of attempting to manufacture methamphetamine. We therefore look to the sentencing guideline section that governs attempts to manufacture methamphetamine under section 846 as the most analogous guideline to Hyde's crime. The identity between the elements of section 841(d)(2) and section 846 suggests that section 2D1.4 provides the proper guideline section under which to sentence Hyde.

The Sixth Circuit recognized this point in United States v. Kingston, 922 F.2d 1234 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2054, 114 L.Ed.2d 460 (1991). Kingston pled guilty to possession of phenylacetic acid with intent to manufacture and distribute methamphetamine. Just like Hyde, Kingston argued that his base offense level should not be predicated upon the amount of methamphetamine that could have been produced from the phenylacetic acid he possessed. The court rejected this argument and sentenced the defendant according to guideline section 2D1.1. Id. at 1237. The court focused on the kinship between section 846's criminalization of attempts and conspiracies to manufacture methamphetamine and section 841(d)(2)'s criminalization of possession of precursor chemicals with knowledge of methamphetamine's subsequent manufacture.

The purpose of the Federal effort is to control the distribution, and thus indirectly the use, of certain chemical substances. Thus, § 841(a) makes distribution and sale illegal, and § 846 tries to prevent the substances from ever being created by making the attempt to create them illegal. Section 841(d) moves this system of control even further back in time by preventing persons from even getting close to creating the substances. Section 841(d) is thus effectively an attempt statute that penalizes acts earlier in the process of manufacturing controlled substances.

... As both § 841(d) and § 846 have the same object, limiting access to controlled substances by criminalizing attempts to create them, it is sensible that they both be punished according to the same principles.

Id. at 1238. The court sentenced Kingston under guideline 2D1.1, noting that section 2D1.4 utilizes the same tables to set base offense levels as does section 2D1.1. Id. The court applied a fairness principle to reach this sentencing result. See id. ("[I]t is fair that violations of § 841(d) be punished with respect to the amount of the controlled substance that the government is seeking to limit."). We simply recognize that the guidelines compel this result.

B.

Guideline section 2D1.4 is designed to punish attempts and conspiracies that violate section 846. Recognizing that the objects of attempts and conspiracies often remain unconsummated at the time of arrest, the United States Sentencing Commission instructs sentencing courts to "approximate the quantity of the controlled...