U.S. v. Killion
| Decision Date | 13 October 1993 |
| Docket Number | No. 92-3130,92-3130 |
| Citation | 7 F.3d 927 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William D. KILLION, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jenine M. Jensen, Asst. Federal Public Defender, (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, CO, for defendant-appellant.
D. Blair Watson, Asst. U.S. Atty., (Lee Thompson, U.S. Atty., and Kim M. Fowler, Asst. U.S. Atty., with him on the briefs), Wichita, KS, for plaintiff-appellee.
Before LOGAN and KELLY, Circuit Judges, and ALLEY, District Judge. *
Defendant-appellant William D. Killion pled guilty to one count of manufacturing 83.8 grams of Phenyl-2-Propanone (P-2-P) in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He was sentenced on April 5, 1991, to forty-six months imprisonment in accordance with the Sentencing Reform Act of 1984. He did not file a direct appeal. On July 11, 1991, Killion mailed a letter to the district court, claiming that the court erred in calculating his sentence and that he was wrongfully denied federal jail credit for time spent in state custody under a federal detainer. In view of Killion's pro se status, the district court construed Killion's letter as a motion for relief from an illegal sentence pursuant to 28 U.S.C. § 2255. 1 After considering the merits of the motion and the relevant precedents of our circuit, the district court, in a published decision, denied relief. United States v. Killion, 788 F.Supp. 1165 (D.Kan.1992). This appeal followed. We affirm.
Killion was charged with knowingly and intentionally manufacturing 83.8 grams of P-2-P with the intent of manufacturing amphetamines, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. 2 While searching the premises occupied by Killion and his co-conspirators, the government found 66.3 grams of a yellow liquid in a glassware container, and in a separate container, 17.5 grams of a hardened dark brown substance. Drug Enforcement Agency laboratory reports revealed that the 66.3 grams of yellow liquid contained 52.9 grams of P-2-P, and the 17.5 grams of dark brown substance contained an unquantifiable trace of P-2-P.
Killion was sentenced in accordance with 21 U.S.C. § 841(b)(1)(C) and § 2D1.1 of the United States Sentencing Commission Guidelines Manual (1991) ("the Guidelines"). In calculating Killion's base offense level pursuant to § 2D1.1, the district court included the entire weight of the yellow liquid and the dark brown substance, 83.8 grams. Killion was assigned a total offense level of fourteen, which carries an imprisonment range of thirty-seven On July 11, 1991, Killion wrote a letter to the district court challenging the length of his sentence and contending that the court erroneously included the weight of unusable waste by-products in determining his base offense level. 3 Specifically, Killion argued that the yellow liquid and the hardened dark brown substance contained waste by-products of the P-2-P manufacturing process that should not have been included in the court's calculations. From the 83.8 grams of the total mixture, Killion claimed, only 52.928 to 53.0 grams constituted P-2-P. Killion thus asserted that he should have been assigned a category twelve under the Guidelines, based on 53.0 grams of P-2-P.
to forty-six months. He received a sentence of forty-six months imprisonment
The district court, construing Killion's letter as a § 2255 motion for relief from an illegal sentence, rejected Killion's request for a reduced sentence. The court found that because the yellow liquid and dark brown substance contained a "detectable amount" of P-2-P, the entire amount of the mixture should be used for sentencing, in accordance with Tenth Circuit precedent. Id. at 1167.
Killion's pro se briefs on appeal collectively state five issues: (1) whether the district court erred in calculating Killion's base offense level based on the entire weight of the mixture; (2) whether the Guidelines unconstitutionally classify P-2-P as a Schedule II stimulant; (3) whether the district court erred in the application of the Guidelines due to the Guidelines' classification of P-2-P as a Schedule II stimulant; (4) whether the district court erred in applying the "mixture or substance containing a detectable amount" language for sentencing purposes; and (5) whether the district court erred in not applying the rule of lenity. The United States maintains that Killion is precluded from raising his second through fifth issues, as he did not specifically assert them at the district court level, and, in any event, the issues are nonmeritorious. Killion, however, contends that he raised these issues in his letter to the district court, but that the court nonetheless ignored them.
We appointed a federal public defender to file a supplemental brief and to present oral argument with respect to Killion's first issue only, as we are persuaded that this appeal, in fact, presents only a single issue. However, in view of Killion's pro se status prior to our appointment of the federal public defender, coupled with our review of the letter to the district court, we elect to address the merits of all five issues raised by Killion on this appeal.
ISSUE 1
The first and principal issue presented by this appeal is whether the United States Supreme Court decision, Chapman v. United States, --- U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), supersedes the Tenth Circuit's earlier position that the weight of waste products that are the by-product of a drug manufacturing process but that contain a detectable amount of a controlled substance may be used in calculating a defendant's base offense level under § 2D1.1 of the Guidelines. The district court, citing United States v. Dorrough, 927 F.2d 498, 502 (10th Cir.1991), and United States v. Callihan, 915 F.2d 1462, 1463 (10th Cir.1990), ruled that the weight of unusable waste by-products containing a detectable amount of P-2-P are to be included for sentencing purposes under the Guidelines. Killion, 788 F.Supp. at 1167. Killion, however, maintains that the district court erred in including the weight of waste by-products in calculating his sentence because Dorrough and Callihan were decided prior to and were effectively overruled by Chapman. We review a challenge to a district court's interpretation of the Guidelines de novo. United
States v. Agbai, 930 F.2d 1447, 1448 (10th Cir.1991).
Section 2D1.1 of the Guidelines concerns the calculation of base offense levels for drug offenses. Footnote * to § 2D1.1(c) expressly states that "the weight of a controlled substance ... refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." U.S.S.G. § 2D1.1(c) n. * (1991) (emphasis supplied). The plain language of the Guidelines, thus, requires that the entire weight of any mixture containing a detectable amount of a controlled substance be used in calculating a defendant's base offense level.
In Dorrough, we adopted a literal interpretation of footnote * and held that the entire weight of a mixture containing P-2-P should be used in calculating a sentence under § 2D1.1, even though, in that case, the mixture mainly consisted of waste by-products. 4 Dorrough, 927 F.2d at 502. In Dorrough the police seized 94 liters of liquid containing P-2-P prior to the completion of the manufacturing process. Id. At sentencing, the defendant presented evidence that the maximum amount of P-2-P that could have been produced from the liquid seized was 8.85 kilograms. Id. The defendant argued that only the 8.85 kilograms should have been considered in calculating his sentence and that the remaining liquid from the manufacturing process constituted waste by-products. Finding support in footnote * to § 2D1-1(c), we held that the district court properly considered the weight of the entire 94 liters because the mixture contained a "detectable amount" of P-2-P. Id. We rejected the defendant's argument that, in a manufacturing case, only the "maximum amount of drugs that could be produced from the manufacturing process" should be considered. Id.
Similarly, in Callihan, we included the weight of waste by-products from the P-2-P manufacturing process in determining the total weight for purposes of the defendant's sentence, even though the actual amount of P-2-P if separated would have called for a much lower sentence. Callihan, 915 F.2d at 1463. The defendant there entered a plea of guilty to conspiring to manufacture, possess with intent to distribute, and distribute amphetamine, in violation of 21 U.S.C. § 846. Id. At the time of his arrest, 94 kilograms of a chemical mixture containing phenalytic acid, sodium acetate, acetic anhydride, and P-2-P were seized. Id. When heated, the chemical mixture would have produced more P-2-P. Id. However, at the time of the seizure, only 2.95 kilograms of P-2-P was actually present in the mixture. Id. We literally construed footnote * to § 2D1.1, and held that the district court did not err in basing the defendant's sentence on the weight of the entire 94 kilograms of P-2-P actually present. 5 Id. We explained that "[t]he footnote meant what it said: that the scale weight of a mixture or compound containing a controlled substance is the entire amount of the mixture or compound." Id. We also rejected the defendant's suggestion that the way that the footnote had been rewritten (to the version at issue in this case) showed that the footnote formerly had a different meaning. Id. We ruled that the revised footnote merely stated more efficiently the content of its predecessor. Id.
To continue reading
Request your trial
-
U.S. v. Richards
...Jennings, 945 F.2d at 136-37; Johnson, 999 F.2d at 1196-97; Rolande-Gabriel, 938 F.2d at 1237-38. As we explained in United States v. Killion, 7 F.3d 927 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1106, 127 L.Ed.2d 418 (1994), "[t]hese courts reason that it is logical to includ......
-
U.S. v. Richards, 94-4052
..."mixture or substance" only in the context of section 2D1.1 of the sentencing guidelines. Aplt.Br. at 16; see United States v. Killion, 7 F.3d 927 (10th Cir.1993) (weight of waste by-products may be used to calculate base offense level under section 2D1.1), cert. denied, --- U.S. ----, 114 ......
-
United States v. King, Civ. No. 16-501 MV/KK
...binds this Court "absent en banc reconsideration or a superseding contrary decision by the Supreme Court." United States v. Killion, 7 F.3d 927, 930 (10th Cir. 1993). Here, Lujan does not bind the Court, because Curtis Johnson is a "superseding contrary decision by the Supreme Court," requi......
-
U.S. v. Ochoa-Heredia, CR 99-4069-MWB.
...Jennings, 945 F.2d at 136-37; Johnson, 999 F.2d at 1196-97; Rolande-Gabriel, 938 F.2d at 1237-38. As we explained in United States v. Killion, 7 F.3d 927 (10th Cir.1993), cert. denied, 510 U.S. 1133, 114 S.Ct. 1106, 127 L.Ed.2d 418 (1994), "[t]hese courts reason that it is logical to includ......