U.S. v. Walker

• Citation: 960 F.2d 409
• Decision Date: 24 April 1992
• Docket Number: 91-8423,Nos. 91-8396,s. 91-8396
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne Eugene WALKER and Joe Guerra, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Robert BOUVIER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 409

960 F.2d 409

UNITED STATES of America, Plaintiff-Appellee, v. Wayne Eugene WALKER and Joe Guerra, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Robert BOUVIER, Defendant-Appellant.

Nos. 91-8396, 91-8423.

United States Court of Appeals Fifth Circuit.

April 24, 1992.

Rehearing and Rehearing En Banc

Denied in No. 91-8396

May 26, 1992.

Kenneth E. Houp, Jr., Austin, Tex. (Court-appointed), for Walker.

James Nias, Austin, Tex. (Court-appointed), for Guerra.

Diane D. Kirstein, LeRoy Morgan Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for U.S. in No. 91-8396.

David A. Wright, Austin, Tex. (Court-appointed), for Bouvier.

LeRoy M. Jahn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., Mark H. Marshall, Asst. U.S. Atty., Austin, Tex., for U.S. in No. 91-8423.

Appeals from the United States District Court for the Western District of Texas.

Before GARWOOD and DEMOSS, Circuit Judges, and DUPLANTIER, ^* District Judge.

DUPLANTIER, District Judge:

Investigations by the Austin, Texas, Police Department resulted in the discovery of a clandestine methamphetamine laboratory and the arrests of defendants, Robert Bouvier, Joe Guerra, and Wayne Walker, along with others. ¹ Defendants were charged in a two-count indictment: count one charged a conspiracy to possess with intent to distribute more than 100 grams of methamphetamine; count two charged possession with intent to distribute methamphetamine. After defendant Bouvier successfully moved to sever his trial, defendants Walker and Guerra were convicted by a jury on both counts of the indictment. Bouvier subsequently entered into a plea agreement with the government, reserving his right to appeal the district court's denial of his pre-trial motions, and pleaded guilty to count one of the indictment.

In these consolidated appeals, all defendants contend that the district court improperly calculated the quantity of methamphetamine seized in determining their base offense levels under the Sentencing Guidelines. They also contend that the district court erred in denying their motions to dismiss based upon violations of the Speedy Trial Act, 18 U.S.C. § 3161, and based upon failure of the indictments to state an offense on the theory that methamphetamine has been "descheduled" as an unlawful drug. As noted hereafter, all three of these contentions are foreclosed by precedent in this circuit. In addition, defendant Walker presents a sufficiency of the evidence claim, and defendant Guerra contends that the district court erred in denying his motion to suppress his confession and other evidence and in calculating his offense level for sentencing. Finding that the district court committed no error, we affirm.

WEIGHT OF METHAMPHETAMINE IN COMPUTING GUIDELINES

In executing a search warrant at a residence where they found the methamphetamine laboratory, police seized a quantity of a toxic liquid substance consisting of phenylacetone and a small percentage of methamphetamine. At trial, a chemist testified that the liquid was probably a waste product left over from the methamphetamine manufacturing process. At Bouvier's sentencing hearing, the government stipulated that "over ninety-five per cent of the volume or weight of those liquids" was solvents. Defendants contend that the district court erred in its application of the sentencing guidelines when it used the total weight of the liquid in calculating their offense levels.

This court has consistently rejected arguments similar to defendants'. ² See United States v. Mueller, 902 F.2d 336 (5th Cir.1990); United States v. Butler, 895 F.2d 1016 (5th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 82, 112 L.Ed.2d 54 (1990); United States v. Baker, 883 F.2d 13 (5th Cir.), cert. denied, 493 U.S. 983, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989). In Baker, the court held that the district court correctly used the total weight of a liquid substance containing methamphetamine in calculating defendant's base offense level, despite that fact that most of the liquid was waste material. Baker, 883 F.2d at 14-15. ³

In Butler, the court found that defendant's offense level had been properly calculated based upon thirty-eight and one-half pounds of a liquid consisting of seven to fourteen grams of methamphetamine and the remainder "lye water." Butler, 895 F.2d at 1018. The court found that the defendant's argument was foreclosed by the specific language ⁴ of the guidelines and by the holding in Baker. Finally, in Mueller, the court rejected defendant's argument that his offense level had been calculated improperly based upon 8.5 gallons of methamphetamine, because the mixture seized consisted largely of acetone rather than methamphetamine. Mueller, 902 F.2d at 345. Again, the court confirmed that Baker foreclosed such an argument. Id.

Defendants assert that the Supreme Court's recent decision in Chapman v. United States, --- U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), effectively overruled Baker and its progeny. We disagree. In Chapman, the Court held that the weight of the blotter paper used to distribute LSD and not simply the weight of the pure LSD should be used for sentencing, because the blotter paper is a mixture or substance containing a detectable amount of LSD. Id. 111 S.Ct. at 1922. The Court found that the words "mixture" and "substance" in 21 U.S.C. § 841(b)(1)(B)(v) and the sentencing guidelines, given their ordinary meaning, would include the blotter paper. Id. at 1925-26. It also found that such a sentencing scheme was rational because, although blotter paper is not used to "dilute" LSD, it facilitates the distribution of the drug and makes LSD easier to "transport, store, conceal, and sell." Id. at 1928. Chapman did not involve methamphetamine; nor did it involve a liquid. Hence, the Court did not speak to the issue of whether the weight of liquid waste containing methamphetamine should serve as a basis for computing a defendant's offense level. Thus, Chapman did not overrule Baker. To the contrary, much of the language in Chapman supports this court's decision in Baker. ⁵

In sentencing defendants, the district court correctly used the entire weight of a mixture or substance containing a detectable amount of methamphetamine.

SPEEDY TRIAL ACT

All defendants contend that the district court erred in denying their motions to dismiss based upon violations of the Speedy Trial Act, 18 U.S.C. § 3161. The Act requires that "the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date of the information or indictment...." 18 U.S.C. § 3161(c)(1). The Act also provides for the exclusion of "[a]ny period of delay resulting from other proceedings concerning the defendant, including ... delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion...." 18 U.S.C. § 3161(h)(1)(F).

Defendants were indicted on March 6, 1990. On March 26 they filed a variety of pre-trial motions, which were set for hearing. Before the motions were heard, defendants entered into plea agreements with the government and entered pleas of guilty. In October, the district court rejected defendants' guilty pleas and reset the pre-trial motions for hearing on January 4, 1991. Defendants filed additional pre-trial motions before January 4. Defendants concede that, aside from the twenty days between the filing of the indictments and the first pre-trial motions, all time up until January 3 should be excluded under the Act. The excludability of the delays after January 3 is at issue.

On January 3, the district court sua sponte continued the hearing on the pre-trial motions until February 19. On February 13, the court continued the hearing sua sponte until April 15. On April 18, the court granted the government's motion to continue the hearing based upon a death in the family and hospitalization of the wife of the Assistant United States Attorney handling the case. On April 19, May 6, and May 9, Walker, Bouvier, and Guerra, respectively, filed their motions to dismiss based on violations of the Speedy Trial Act, which the district court denied orally after a hearing on all of the pre-trial motions, on May 20-21. The court filed a written order regarding the rulings a few days later. ⁶

Defendants contend that because the delays after January 3 were not requested or caused by them, those delays should not be excluded from computation of time under the Act. An identical argument was rejected in United States v. Horton, 705 F.2d 1414, 1416 (5th Cir.), cert. denied, 464 U.S. 997, 104 S.Ct. 496, 78 L.Ed.2d 689 (1983). There, defendants attacked the exclusion of the period of time during which motions were pending as unjustified, "asserting that little or none of it was occasioned at their request or on their account." Id. "Even assuming this to be so," the court concluded that defendants' argument must fail because the Act is "all but absolute" in excluding time during which motions are pending. Id. An exception might be justified in a particularly egregious case, for example, when defendants have presented "repeated unsuccessful requests for hearings or ... other credible indication that a hearing had been deliberately refused with intent to evade the sanctions of the Act." Id. Like the defendants in Horton, defendants have not presented such a case here. Defendants conceded at oral argument that during the pendency of their motions they neither complained of the delay nor did anything to expedite a decision on their motions.

Defendants Walker and Guerra also complain that the district court erred by not following the requirements of section (h)(8)(A) of the Act, which excludes

[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the...