U.S. v. Smallwood
| Decision Date | 03 January 1991 |
| Docket Number | No. 90-5524,90-5524 |
| Citation | 920 F.2d 1231 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Jesse SMALLWOOD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stewart J. Alexander, Lynda S. Ladymon, San Antonio, Tex., for defendant-appellant.
Richard L. Durbin, Jr., LeRoy Morgan Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, GARZA and DAVIS, Circuit Judges.
Robert Smallwood appeals the sentence imposed by the district court upon his plea of guilty to possession with intent to distribute methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1). We affirm.
Robert Smallwood and a co-defendant, Marlin Bostdorf, were charged in an original indictment with conspiracy to manufacture methamphetamine, 21 U.S.C. Secs. 841(a)(1), 846, and possession with intent to distribute methamphetamine, 21 U.S.C. Sec. 841(a)(1). A superseding indictment recharged these two counts and added a count against Smallwood for aiding and abetting the distribution of amphetamine, 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. The original indictment arose from equipment, chemicals and controlled substances seized at Smallwood's residence. The added charge arose from an earlier transaction based on Smallwood's role in the sale of 26 grams of 34 percent pure amphetamine hydrochloride to an undercover agent of the United States Drug Enforcement Agency (DEA).
Smallwood and Bostdorf entered plea agreements with the government. Prior to the court's acceptance of Smallwood's plea, the government's attorney read the following factual basis into the record:
That on November 28th of 1988, law enforcement agents executed a federal search warrant upon the residence of Robert Smallwood and Debora Bullock [Smallwood's common-law wife] located at Pipe Creek, Texas, Bandera County, here in the Western District of Texas.
During the execution of the warrant, they discovered a non-operational clandestine laboratory for the manufacture of methamphetamine. Agents seized a substantial quantity of precursor chemicals utilized in the manufacture of methamphetamine and amphetamine, as well as liquid methamphetamine.
During the execution of the warrant, Defendants Robert Smallwood and Marlin Bostdorf had arrived at the residence. After being advised of their constitutional rights against self-incrimination and following contact with law enforcement officers, Robert Smallwood told the agents that all of the chemicals, equipment, and glassware was his and that he had previously manufactured methamphetamine at the Pipe Creek residence using Marlin Bostdorf as a methamphetamine cook.
Mr. Bostdorf was likewise advised of his Miranda rights and thereafter told agents that the methamphetamine had been previously manufactured at the Pipe Creek residence by Smallwood and himself, and Bostdorf further told the agents that a certain quantity of powder methamphetamine was buried in some trash located in a truck registered to Robert Smallwood. The truck to which Mr. Bostdorf was referring was located outside of that residence.
A subsequent search of that vehicle uncovered a glass jar containing a quantity of powder. Appropriate chain of custody was maintained concerning this powder and it was found to have a net weight of 267 grams, and laboratory analysis determined that the powder was in fact methamphetamine as a hydrochloride with a strength of 4.8 percent, Your Honor.
Smallwood did not object to this proffer. He pleaded guilty to possession with intent to distribute methamphetamine. Before accepting the plea, the court twice advised Smallwood that "the maximum possible penalty [for this crime] is twenty years of imprisonment and/or a fine of $1,000,000." Finding that Smallwood fully understood the nature of the charges and penalties, that he freely and voluntarily waived his constitutional protections, and that a factual basis existed, the district court accepted his plea of guilt. In accord with the plea arrangement, the court thereupon dismissed the remaining counts concerning conspiracy to manufacture methamphetamine and aiding and abetting distribution of amphetamine.
The Presentence Report (PSR) filed in this case noted that, prior to obtaining the search warrant for Smallwood's residence, DEA agents had driven into the vicinity and detected a strong odor emanating from the house, which the agents associated with the manufacture of methamphetamine. The PSR also noted that the following precursor chemicals were seized: "Formylamphetamine, Formic Acid, Acetic Anhydride, Formamide, Methylamine, 110 gallons Phenylacetic Acid." Also seized were drug ledgers indicating sales of methamphetamine, along with equipment, glassware and formulas for the manufacture of methamphetamine. The PSR indicates that approximately one-half pound (267.1 grams) of 4.8 percent pure "finished methamphetamine" was found in the bed of Smallwood's pickup truck, along with another 20.4 grams of methamphetamine of undetermined strength.
The PSR recounts a DEA chemist's statement that, because phenylacetic acid has a "direct correlation for methamphetamine production," the amount seized was sufficient to manufacture a practical yield of at least 30 pounds of methamphetamine. At the same time, the chemist acknowledged that three necessary precursors were missing--sodium acetate, mercuric chloride and aluminum hydride--but that empty containers seized at the premises contained trace residues of these chemicals. It was the chemist's opinion that neither methamphetamine nor amphetamine could have been produced without the sodium acetate. The government indicated to the court that sodium acetate and the other missing precursors were readily obtainable at hardware and drug stores. The PSR noted that phenylacetic acid sold for approximately $1,000 per kilogram at the time of arrest, and that Smallwood admitted to having stolen his batch from unidentified individuals in Austin, Texas.
The PSR based its offense level computation on the 313.5 grams of methamphetamine actually seized plus the 30 pound practical minimum yield from the seized phenylacetic acid mixture, which corresponds to a total of 13,921.5 grams of methamphetamine. Based on U.S.S.G. Sec. 2D1.1 (), the PSR placed Smallwood's base offense level at 34. 1 No adjustments were recommended. The district court apparently adjusted the base level downward by two points for acceptance of responsibility. See U.S.S.G. Sec. 3E1.1. Smallwood's criminal history category was II, based on an arrest and sentence in 1981 for his role in connection with an operating methamphetamine laboratory. The PSR also informed the district court of other charges pending against Smallwood. Eight months prior to this arrest, Smallwood was arrested for possession of methamphetamine and burglary of a habitation. A plea on this charge was forthcoming at the time of the present sentencing. Also, subsequent to his arrest on his current charges but prior to sentencing, Smallwood was again arrested and charged with conspiracy to manufacture methamphetamine. 2
Based on the record developed, the district court accepted the PSR's recommended guideline range and sentenced Smallwood to 168 months imprisonment, a fine of $2500, supervised release of 5 years, and a $50 special assessment. Smallwood objected then, as he does now, to the amount of methamphetamine serving as the basis of his sentence.
Smallwood makes several related arguments. All urge that the district court's inclusion of the practical yield of methamphetamine from the phenylacetic acid violates the letter and spirit of the guidelines. He argues that the court calculated the base offense level contrary to law based upon consideration of erroneous and misleading information; that because the court considered this information, his guilty plea was not voluntary and intelligent; that the information relied upon by the court was unconstitutionally obtained; and that 21 U.S.C. Sec. 841(d) is unconstitutionally vague.
The guideline applicable to Smallwood's violation of 21 U.S.C. Sec. 841(a)(1) states that the base offense level for possession with intent to distribute a controlled substance will be "the offense level specified in the Drug Quantity Table." U.S.S.G. Sec. 2D1.1(a)(3). Application Note 12 in the commentary to this guideline is of particular importance here. It states in part:
Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See Sec. 1B1.3(a)(2) (Relevant Conduct). If the amount seized does not reflect the scale of the offense, see Application Note 2 of the Commentary to Sec. 2D1.4. U.S.S.G. Sec. 2D1.1, comment (n. 12).
The application note referred to in the last sentence above provides:
Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination, the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved. U.S.S.G. Sec. 2D1.4, comment (n. 2) (emphasis added).
The district court calculated the drug quantity involved in Smallwood's offense conduct according to the quantity of actual methamphetamine seized plus the practical yield of methamphetamine that could be derived in his laboratory from the phenylacetic acid seized at his residence. In doing so, the district court adopted the findings set forth in the PSR, which established a base offense level of 34. Had only the...
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