U.S. v. Jennings, s. 92-3522

• Decision Date: 05 January 1994
• Docket Number: Nos. 92-3522,92-3527,s. 92-3522
• Parties: UNITED STATES of America, Appellee, v. Paul James JENNINGS, Appellant. UNITED STATES of America, Appellee, v. Robert Lee JENNINGS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 836

12 F.3d 836

UNITED STATES of America, Appellee, v. Paul James JENNINGS, Appellant.

UNITED STATES of America, Appellee, v. Robert Lee JENNINGS, Appellant.

Nos. 92-3522, 92-3527.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1993.

Decided Jan. 5, 1994.

Chip J. Lowe, Des Moines, IA (argued), for Paul James Jennings.

Brent D. Rosenberg, Des Moines, IA (argued) for Robert Lee Jennings.

Ronald M. Kayser, Des Moines, IA (argued), for U.S.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

BOWMAN, Circuit Judge.

In these consolidated appeals, Robert Lee Jennings appeals the sentence imposed by the District Court ¹ after he pleaded guilty to conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine. Paul James Jennings appeals his conviction for conspiracy to distribute methamphetamine. We affirm.

I.

Robert Lee Jennings ("Robert") and his younger brother, Paul James Jennings, were members of a large methamphetamine distribution organization operating in the Ottumwa, Iowa, area (the "Ottumwa drug ring"). The group regularly purchased methamphetamine from a supplier in California for distribution in the Ottumwa area. Robert was a courier and distributor for the Ottumwa drug ring. In 1991, he was arrested and charged with various narcotics offenses, along with ten co-conspirators, in a twenty-three count indictment. Pursuant to a plea agreement, Robert pleaded guilty to one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. Sec. 846 (1988), and one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) (1988). The government and Robert reached no consensus on the weight of methamphetamine to be attributed to him for sentencing purposes.

In calculating the amount of methamphetamine to impute to Robert for sentencing purposes, the presentence report ("PSR") relied upon debriefing statements given by Robert, by co-conspirators Floyd and Lori Stockdall, and by a confidential informant working with the drug task force on this case. The PSR attributed a total of twelve pounds of methamphetamine to Robert based on Lori Stockdall's estimates of the number of trips Robert took to procure drugs for the Ottumwa drug ring and the weight of these drugs. Lori Stockdall also stated that after the Ottumwa drug ring received a "bad batch" of methamphetamine, Robert was dispatched to California to pick up a replacement batch. The PSR attributed to Robert the weights of both the "bad batch" and its replacement. The PSR concluded that, in total, Robert was responsible for 14.24 kilograms of methamphetamine. At the sentencing hearing, the District Court heard testimony from seven government witnesses including Floyd and Lori Stockdall. The court found Robert responsible for thirteen kilograms of methamphetamine. After granting Robert a two-level reduction for acceptance of responsibility, the court calculated Robert's total offense level as 34. United States Sentencing Commission, Guidelines Manual, Secs. 2D1.1(c) and 3E1.1 (Nov.1991). The punishment range for this level is 151 to 188 months. ² The court then imposed two concurrent 151-month terms of imprisonment. Robert appeals this sentence, arguing that the District Court erred in determining the type and amount of methamphetamine attributable to him for sentencing purposes.

Robert argues that the government failed to meet its burden of proving that the methamphetamine attributed to him was dextro-methamphetamine ("d-meth") rather than levo-methamphetamine ("l-meth") and, thus, that the District Court erred in finding that all the controlled substances involved were d-meth. ³ At sentencing, the government must prove that the methamphetamine attributed to the defendant is more likely than not d-meth. United States v. Patrick, 983 F.2d 206, 208 (11th Cir.1993); United States v. Townley, 929 F.2d 365, 369 (8th Cir.1991). Here the government produced three expert witnesses who testified concerning the drug type. After hearing their testimony, the District Court found that all the methamphetamine was of the d-meth variety. We will reverse the District Court only if this finding is clearly erroneous.

At the sentencing hearing, the government's experts testified that they had examined eight samples of methamphetamine attributed to Robert. Six of the samples were methamphetamine obtained by the confidential informant from Robert on three separate occasions. The other two samples were portions of the replacement batch attributed to Robert. All eight proved to be d-meth. In addition, the experts testified that l-meth is almost never found in samples seized in either California or Iowa. See Tr. of Sentencing Hr'g at 109, 126, 134. As to the "bad batch," which was not recovered by the government and, thus, never tested, Lori Stockdall testified it produced no "buzz" when she ingested it. On the other hand, Floyd Stockdall testified it was so toxic it burned the hands of anyone who handled it. Floyd also testified that the substance emanated a very strong odor of methamphetamine and came from the same source that normally provided the Ottumwa drug ring with good quality methamphetamine. Considering this evidence, we cannot say that the District Court clearly erred in finding that all the methamphetamine attributed to Robert was more likely than not d-meth. See United States v. Koonce, 884 F.2d 349, 352-353 (8th Cir.1989); United States v. Brett, 872 F.2d 1365, 1372 (8th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989).

Robert next argues that the District Court erred when it attributed the "bad batch" to him in computing his sentence because neither Robert nor any of his co-conspirators considered the substance saleable nor did they ever intend to distribute it. Robert further argues that the District Court erred in attributing to him the weights of both the "bad batch" and the replacement batch. He contends that the Ottumwa drug ring had no intention to purchase or distribute more than one of these batches. Robert concedes that he did not raise either of these issues concerning the use of the "bad batch" for sentencing purposes in the District Court. We therefore consider these "bad batch" issues only under the plain error standard of review, which precludes reversal of the District Court unless Robert can show that (1) the court committed an error; (2) the error is plain, i.e., clear under current law; and (3) the error affected his substantial rights. Fed.R.Crim.P. 52(b); United States v. Olano, --- U.S. ----, ---- - ----, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993); United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc). We are convinced that Robert cannot satisfy this standard. This Court has not previously addressed the issue of the use of "bad batches" of methamphetamine for sentencing purposes, and the Sentencing Guidelines do not speak directly to this question. We thus are unable to conclude that the error here, if any there was, should have been clear to the District Court under the current law. We conclude that the District Court did not commit plain error.

Finally, Robert contends that the District Court's finding that he was responsible for a total of thirteen kilograms of methamphetamine is clearly erroneous, as the government did not establish with specificity either...