U.S. v. Manthei, 89-1970

• Decision Date: 20 September 1990
• Docket Number: No. 89-1970,89-1970
• Citation: 913 F.2d 1130
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramona Johnston MANTHEI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1130

913 F.2d 1130

59 USLW 2259

UNITED STATES of America, Plaintiff-Appellee, v. Ramona Johnston MANTHEI, Defendant-Appellant.

No. 89-1970.

United States Court of Appeals Fifth Circuit.

Sept. 20, 1990.

William Chambers, Fort Worth, Tex., for defendant-appellant.

J. Michael Worley, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

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

Before GEE, POLITZ, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

The primary issue in this case is whether under Sentencing Guidelines Sec. 3B1.1(a), a court may increase a sentence for the defendant's role as an organizer or leader of extensive criminal activity, when the defendant, who was involved from manufacture through distribution of amphetamine, was convicted only for her sole participation in its distribution to one individual. Finding that the district court correctly applied the Guidelines in doing so, as well as in otherwise determining the defendant's sentence, we AFFIRM.

I.

In August 1988, after purchasing amphetamine from two other individuals, undercover police officer Ligon was introduced to Appellant Manthei. Ligon met with Manthei, her daughter, and a confidential informant in an attempt to purchase one pound of amphetamine. Manthei told Ligon that she "had been in the amphetamine business for the past eleven years and that she was careful ... in ... laundering [the money] through legitimate businesses." She said that she "was in control of [a] lab"; and "used the word, chef, which ... commonly refers to the cook, or the person that actually produces or manufactures the amphetamine"; and "made it very clear ... that I could acquire just ... about any quantity of amphetamine...." ¹ Manthei advised Ligon that Donald Chandler (Chandler), from whom Ligon had previously purchased drugs, had called her earlier that day, requesting that she meet with Ligon.

Consistent with this, in a mid-November 1988, telephone conversation with Ligon, Manthei referred to a purchase of 15 pounds of amphetamine, which Ligon had negotiated with Chandler but which had not yet been delivered, and advised Ligon that the "speed that [Chandler] was to deliver to you the other day ... was coming from me." Manthei stated that she was "having problems at the lab site in Oklahoma, I've got electricity problems and I've got to get a generator up there so they can finish it." Accordingly, she asked Ligon to "hold off for a few days [so that] she could probably make good on the fifteen pound order." Subsequently, Manthei informed Ligon that she had heard from her people but was not able to manufacture fifteen pounds.

Earlier in November 1988, DEA Special Agent Taylor met with Manthei after an undercover informant arranged for Taylor to purchase amphetamine from her. Taylor made the purchase after Manthei stated that the price for two zip lock bags of amphetamine, each of which contained approximately one ounce, was $2,400. When Taylor asked whether the powder was fresh, Manthei replied that she had obtained it the previous weekend and that it was pure. Manthei stated that she had packaged the powder herself and added, "I do all of mine like that. I'm the only one in Fort Worth that packages that way." The two bags contained 56 grams (approximately two ounces) of 100% amphetamine hydrochloride.

At the end of November 1988, DEA agents executed a search warrant at Manthei's home and arrested her. Lab equipment and $13,500 in cash was seized. In December 1988, Manthei and Chandler were charged in a six count indictment with, inter alia, conspiracy to distribute amphetamine in violation of 21 U.S.C. Sec. 846. ²

In early February 1989, Ligon was advised that the Jefferson County, Oklahoma, Sheriff had seized a large amphetamine laboratory in mid-December 1988. Five people were arrested and convicted for participating at the lab; and several filed statements that the lab belonged to Manthei and her husband. State narcotic charges were filed against Manthei, her husband, and her daughter.

Upon being advised about the lab in Oklahoma, the DEA executed a second search warrant at Manthei's residence and found a notebook containing notes concerning chemicals and glassware supplies needed to produce amphetamine, drug transaction records containing several names, including Chandler's, and other evidence linking Manthei to the lab.

A superseding information was filed in June 1989, charging Manthei for the distribution of the two ounces of amphetamine to Agent Taylor, violating 21 U.S.C. Sec. 841(a)(1). She pleaded guilty, and the government agreed to dismiss the indictment at sentencing. A presentence report was prepared; and Manthei objected to its calculation of the offense level, increased for both her role in the offense and the amount of drugs attributed to her. An addendum was filed recommending that her objections be denied.

In October 1989, a sentencing hearing was held, including on Manthei's objections to the report. The report, with addendum, stated that Manthei was responsible for a total amount of amphetamine of over 7,000 grams; this included the 56 grams from Manthei, 454.49 grams from Chandler, 505 grams found at the Oklahoma lab, and 16 to 20 pounds which could have been produced from the precursor chemical found at that lab. The report also charged that she was an organizer or leader of a criminal activity involving five or more participants and that was otherwise extensive, and recommended that her base offense level accordingly be increased by four, under Guidelines Sec. 3B1.1(a). It recommended a two-level reduction from the offense level for acceptance of responsibility, under Guidelines Sec. 3E1.1.

Manthei objected to the increase for her role in the offense. She also objected to establishing the base offense level using 7000 grams, asserting that only the 56 grams were involved, and argued therefore that the resulting offense level should be 16 (before either reduction for acceptance of responsibility or increase for role). At the sentencing hearing, and after receiving evidence, the court adopted the findings in the presentence report and addendum, set her total offense level at 34, and sentenced her, inter alia, to 180 months imprisonment. Manthei timely appealed.

II.

In accepting Manthei's guilty plea at the sentencing hearing, the district court received her acknowledgment that for the offense charged, her maximum sentence could include 20 years (240 months) imprisonment. 21 U.S.C. Sec. 841(a) and (b)(1)(C). Pursuant to the Guidelines, including the Sec. 3B1.1(a) increase, she received 15 years (180 months), five less than the maximum. Manthei contends that in computing her offense level at 34, the district court improperly considered evidence of other offenses for which she was not charged; that the level should instead be 14 (with a corresponding Guidelines imprisonment range of 15-21 months).

Manthei asserts that because she was charged and convicted only for the two ounce distribution, the court improperly: (1) increased her sentence for her role in the offense because no one else participated in the offense of conviction; and (2) considered amounts of drugs which were not involved in the offense of conviction. As stated, the district court acknowledged these objections at the sentencing hearing, but adopted the presentence report, including the factual finding that she was an organizer or leader of a criminal activity that involved five or more persons or was otherwise extensive, after the district court earlier found, based on the report, that "she was pretty heavily connected with all this ... and there was evidence connecting her to [the Oklahoma] lab." ³

This court will "uphold the district court's sentence so long as it results from a correct application of the guidelines to factual findings which are not clearly erroneous." United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989); see 18 U.S.C. Sec. 3742(e)(2). Of course, we review freely legal conclusions with respect to the guidelines. Id.; United States v. Barbontin, 907 F.2d 1494, 1497 (5th Cir.1990).

A.

Manthei contends that her offense level could not be increased under Sec. 3B1.1(a), because she was the only person involved in the offense charged. The issue is whether the court may consider relevant conduct associated or connected with, or contributing to, the offense charged, or just the more limited conduct falling within the definition or terms or elements of the offense charged. Placing the issue in the context of this case, was the district court correct in considering Manthei's and others' activities and roles from preparation at the lab to final distribution, or was it limited to considering only the specific final distribution by Manthei--the offense charged?

This issue is a much more narrow application of the larger threshold question faced by the Sentencing Commission in promulgating the Sentencing Guidelines--what was the scope of activities or conduct to be considered in imposing a sentence. The Commission moved from a "real offense" to a "charge offense" system. U.S.S.G. Ch. 1, Pt. A, intro., 4(a); United States v. Foster, 876 F.2d 377, 378 (5th Cir.1989). But, certain real offense--relevant conduct--aspects remain.

A pure real offense system would sentence on the basis of all identifiable conduct. A pure charge offense system would overlook some of the harms that did not constitute statutory elements of the offenses of which the defendant was convicted.... The system is not, however, pure; it has a number of real elements.... [T]he guidelines, both through specific offense characteristics and adjustments, take account of a number of important, commonly occurring real offense elements such as role in the offense, the presence of a gun, or the amount of money actually taken.

U.S.S.G. Ch. 1, Pt. A, intro., 4(a) (emphasis added).

A further...