U.S. v. Wagner, 92-2011

• Decision Date: 18 May 1993
• Docket Number: No. 92-2011,92-2011
• Citation: 994 F.2d 1467
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeri Sue WAGNER, a/k/a Pam Halsey, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1467

994 F.2d 1467

UNITED STATES of America, Plaintiff-Appellee, v. Jeri Sue WAGNER, a/k/a Pam Halsey, Defendant-Appellant.

No. 92-2011.

United States Court of Appeals, Tenth Circuit.

May 18, 1993.

Tara C. Neda, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with her on the brief), Albuquerque, NM, for plaintiff-appellee.

Kenneth R. Brown, Salt Lake City, UT, for defendant-appellant.

Before MOORE and BRORBY, Circuit Judges, and THEIS, ^* Senior United States District Judge.

BRORBY, Circuit Judge.

Jeri Sue Wagner pleaded guilty to violating 21 U.S.C. § 841(d) for possessing a listed chemical (phenylacetic acid) with the intent to manufacture a controlled substance (methamphetamine). She appeals her sentence asserting the sentencing court incorrectly determined her criminal history by classifying her crime as a "controlled substance offense" and treating her as a "career offender" under the United States Sentencing Guidelines (hereinafter "Guidelines"). She also challenges certain factual findings. We agree with Ms. Wagner that her offense was not a "controlled substance" offense but we disagree that the disputed factual findings were clearly erroneous. In addition, we find the district court applied the wrong guideline in Ms. Wagner's sentencing and instruct the district court to resentence in accordance with this opinion.

Base Offense Level

A. The Chemicals.

To explain Ms. Wagner's sentencing, a brief description of chemicals involved in the manufacture of methamphetamine will be helpful. Phenylacetic acid is a listed chemical, 21 U.S.C. § 802(34), used in the production of methamphetamine, a controlled substance. U.S.S.G. § 2D1.11, comment. (backg'd); 21 C.F.R. § 1308.12 (1992). Phenylacetic acid is not, however, a controlled substance. United States v. Kingston, 922 F.2d 1234, 1237-39 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2054, 114 L.Ed.2d 460 (1991). A third substance, phenylacetone/P sub2 P (hereinafter "P sub2 P") was seized at the location of Ms. Wagner's arrest. P sub2 P is an "immediate precursor" of methamphetamine. Immediate precursors are immediate chemical intermediaries of controlled substances and are classified as controlled substances. 21 U.S.C. § 802(23); 21 U.S.C. § 811(e). In the production of methamphetamine, phenylacetic acid is used to produce a lesser amount of P sub2 P, from which, in turn, a smaller amount of methamphetamine is derived.

B. The Sentence.

Although Ms. Wagner pleaded guilty to possessing phenylacetic acid, the district court, adopting the findings of the presentence report, found that no phenylacetic acid had in fact been seized in connection with Ms. Wagner's arrest. An unspecified volume and concentration of P sub2 P was seized from which approximately 108 grams of methamphetamine could have been produced. Subsequently, an addendum to the presentence report stated the volume of the P sub2 P solution was one liter.

The district court used the estimated quantity of methamphetamine (108 grams), derived from the seized P sub2 P (1 liter), to determine the offense guideline applicable to Ms. Wagner's sentence and her base offense level. The controlled substance guideline is U.S.S.G. § 2D1.1. Under that provision, the district court concluded 108 grams of methamphetamine warranted a base offense level of twenty-six. After adjustments, her base offense level was twenty-two.

Ms. Wagner contends the factual findings of the district court were inadequate or clearly erroneous, and that the district court abused its discretion by declining to hold an evidentiary hearing to resolve disputed sentencing factors. It is somewhat unclear whether she also challenges the offense guideline applied to her sentence, but we review the application for plain error in any case.

C. Discussion.

We review de novo whether the district court correctly applied the Guidelines. United States v. Voss, 956 F.2d 1007, 1009 (10th Cir.1992). Under the Guidelines, the first step in sentencing is to "[d]etermine the offense guideline ... most applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted)." U.S.S.G. § 1B1.2(a). Here, the offense of conviction was possession of a listed chemical, phenylacetic acid, in violation of 21 U.S.C. § 841(d), ¹ and the appropriate guideline was U.S.S.G. § 2D1.11. Section 2D1.11 is entitled "Unlawfully Distributing, Importing, Exporting, or Possessing a Listed Chemical: Attempt or Conspiracy," and specifically provides for offenses involving phenylacetic acid. Although not dispositive, we also note that the Guidelines cross-reference 21 U.S.C. § 841(d) and U.S.S.G. § 2D1.11. U.S.S.G. App. A (Nov.1991); cf. Voss, 956 F.2d at 1009. There is no dispute the offense guideline applicable to Ms. Wagner's offense is U.S.S.G. § 2D1.11.

Under U.S.S.G. § 2D1.11, the defendant's base offense level is determined by the listed chemical table, U.S.S.G. § 2D1.11(d), using the quantity of listed chemical involved in the crime. If no listed chemical was seized in connection with the offense, or the amount seized does not adequately reflect the severity of the crime, the substance quantity may be estimated upon proper testimony. Cf. United States v. Short, 947 F.2d 1445, 1457 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992). The estimate must be supported by some evidence exhibiting at least a minimum indicia of reliability, and the estimate must be established by a preponderance of the evidence. Cf. United States v. Easterling, 921 F.2d 1073, 1077 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2066, 114 L.Ed.2d 470 (1991); United States v. Havens, 910 F.2d 703, 706 (10th Cir.1990) (proper testimony consisted of record-supported expert testimony), cert. denied, 498 U.S. 1030, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991); and U.S.S.G. § 2D1.11, comment. (n. 12) ("[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance."). In this case, the amount of P sub2 P that was seized may, inter alia, bear on the quantity of phenylacetic acid that was involved in the offense. Accordingly, as an initial matter under U.S.S.G. § 2D1.11, Ms. Wagner's base offense level should be determined by U.S.S.G. § 2D1.11(d) using the amount of listed chemical seized in connection with her offense or an estimate of such a quantity if appropriate.

The calculation based upon the quantity of listed chemical, however, may not exhaust the proper application of § 2D1.11. As an additional calculation, U.S.S.G. § 2D1.11(c) is a cross-reference to apply U.S.S.G. § 2D1.1, the controlled substance guideline, when the offense involved manufacture or attempted manufacture of a controlled substance. A cross-reference is an instruction to apply another offense guideline. U.S.S.G. § 1B1.5(a). The application of cross-references is determined by real offense elements of the crime, including acts and omissions committed by the defendant, or by reasonably foreseeable acts and omissions of others in furtherance of jointly undertaken criminal activity, that occurred during the commission of the offense of conviction or were part of the same course of conduct or common scheme or plan as the offense of conviction. U.S.S.G. § 1B1.3. Likewise, the "offense," unless otherwise specified, means "the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct)." U.S.S.G. § 1B1.1, comment. (n. 1(l )). Under § 2D1.11(c), the defendant's offense level is the greater of the two levels calculated using the listed chemical or controlled substance tables.

Applying these rules, if Ms. Wagner manufactured or attempted to manufacture P sub2 P, a controlled substance, the district court should apply U.S.S.G. § 2D1.1 based on the quantity of P sub2 P involved in the offense. The quantity of P sub2 P, in turn, should be determined by reference to the initial inquiry under § 2D1.11. Ms. Wagner is responsible for the amount of P sub2 P that was produced, and the estimated quantity of P sub2 P that could have been produced from the listed chemical. Of course, it may be that Ms. Wagner did not produce or attempt to produce the full amount of P sub2 P that could theoretically be derived from the quantity of listed chemical. Cf. United States v. Evans, 970 F.2d 663, 678 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1288, 122 L.Ed.2d 680 (1993). If the offense level calculated by § 2D1.1(c) is greater than the level calculated by § 2D1.11(d), it applies to Ms. Wagner's sentencing.

This construction of the Guidelines with respect to the relevant amount of controlled substance for purposes of the cross-reference in § 2D1.11(c) is supported by the application notes to U.S.S.G. § 2D1.11. The notes provide that:

[i]n certain cases, the defendant will be convicted of an offense involving a listed chemical covered under this guideline, and a related offense involving an immediate precursor or other controlled substance covered under § 2D1.1 (Unlawfully Manufacturing, Importing, Exporting, or Trafficking). For example, P sub2 P (an immediate precursor) and 3,4-methylenedioxyphenyl-2-propanone (a listed chemical) are used together to produce methamphetamine. Determine the offense level under each guideline separately. The offense level for 3,4-methylenedioxyphenyl-2-propanone is determined by using § 2D1.11. The offense level for P sub2 P is determined by using § 2D1.1 (P sub2 P is listed in the Drug Equivalency Table under LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)). Under the grouping rules of § 3D1.2(b), the counts will be grouped together. Note that in determining the scale of the offense under § 2D1.1, the quantity of both the controlled substance and listed chemical should be considered (see Application Note 12 in the...