US v. Baker, 2:93-CR-05

• Decision Date: 08 February 1994
• Docket Number: No. 2:93-CR-05,2:93-CR-24.,2:93-CR-05
• Citation: 852 F. Supp. 609
• Parties: UNITED STATES of America, Plaintiff, v. Randy Harvey BAKER, Philip Irvin Pavlik, Geoffrey Richard Wiitala, Defendants. UNITED STATES of America, Plaintiff, v. Todd Brian LAMERE, Defendant.
• Court: U.S. District Court — Western District of Michigan

852 F. Supp. 609

UNITED STATES of America, Plaintiff, v. Randy Harvey BAKER, Philip Irvin Pavlik, Geoffrey Richard Wiitala, Defendants.

UNITED STATES of America, Plaintiff, v. Todd Brian LAMERE, Defendant.

Nos. 2:93-CR-05, 2:93-CR-24.

United States District Court, W.D. Michigan, Northern Division.

February 8, 1994.

Glenda Gordon, Asst. U.S. Atty., Marquette, MI, for plaintiff.

Eva A. Kipper, Marquette, MI, for defendant Randy Harvey Baker.

Kalen E. Lipe, Iron Mountain, MI, for defendant Philip Irvin Pavlik.

David L. Poindexter, Marquette, MI, for defendants Geoffrey Richard Wiitala, Todd Brian Lamere.

OPINION

McKEAGUE, District Judge.

Defendants have either pled guilty to or been convicted of conspiracy to manufacture methcathinone, in violation of 21 U.S.C. § 846. They have appeared before the Court for the purposes of sentencing. Pursuant to the Sentencing Guidelines promulgated by the United States Sentencing Commission, the amount of the methcathinone attributable to the defendants must be considered in determining the appropriate sentence. The parties disagree as to the appropriate procedure for determining the amount of Methcathinone involved. The Court has carefully considered the motions filed in this matter, the responses, attachments, testimony of witnesses, and arguments of counsel.

At sentencing, the prosecution bears the burden of proving, by a preponderance of the evidence, the quantity of drugs involved. United States v. Sims, 975 F.2d 1225, 1242 (6th Cir.1992). Where there is no drug seizure, the Court must approximate the quantity of drugs involved. Id.; U.S.S.G. § 2D1.1, Application Note 12 (1993). "When choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the side of caution." Sims, 975 F.2d at 1243.

In the present cases, the parties agree that the quantity of methcathinone for sentencing purposes is determined by approximating the potential yield of the methcathinone laboratories. They disagree, however, as to how that potential yield is to be determined. The government asks that the Court focus on the amount of precursor chemicals seized or attributable to the defendants, and calculate the maximum potential yield from those precursors. According to the government, the reasonable potential yield from a given amount of precursors synthesized in a clandestine laboratory, such as those operated in these cases, is 50%. The government contends that additional factors are irrelevant, as they do not affect the amount of drugs which the defendants intended to manufacture. The defendants, conversely, maintain that the court should take into account a large number of factors, and that the government's estimate of 50% yield is unreasonable when these additional variables are considered. The additional factors the defendants argue must be taken into consideration include, but are not limited to: The skill of the "cooker;" the "recipe" for Methcathinone used; the purity of the precursors; the amount of precursors used; the type of filler used in the Ephedrine; whether the precursors were properly weighed and mixed; the melting point; the cooling time; the stirring time; the size of the batch produced; the number of batches produced by the "cooker;" the cleanliness of the laboratory equipment used; the reaction method; the reaction chemicals used; the separation method, involving extraction and precipitation; the separation chemicals used; the purification process; the purification chemicals used; the presence of noxious fumes in the laboratory; and environmental variables such as air temperature and the humidity level. The Court is thus called on to determine what factors affecting the potential yield of a methcathinone laboratory should be considered when determining the quantity of the controlled substance for purposes of sentencing.

In approximating the quantity of methcathinone attributable to the defendants, the Sentencing Guidelines specify that this Court may consider "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. § 2D1.1, Application Note 12 (1993). The guidelines thus expressly note that laboratory capabilities are an appropriate factor to consider. See United States v. Brannon, 7 F.3d 516, 519 (6th cir.1993).

The guidelines further specify that when an offense, such as a conspiracy, "involves negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount." § 2D1.1, Application Note 12. The Court may exclude from the guideline calculation only those amounts in negotiation which the defendant (1) did not intend to produce, and (2) was not reasonably capable of producing. Id. Thus, in cases involving conspiracy to manufacture and distribute methamphetamine, the inexperience of the cooker does not operate to reduce the amount of drugs attributable to the defendant, unless there is also proof that the defendant did not intend to produce the full amount in negotiation. "The court is required to exclude an unsuccessfully negotiated amount only where the defendant lacked both the intent and the ability to complete the drug transaction." United States v. Brooks, 957 F.2d 1138, 1151 (4th Cir.1992) (emphasis in original); see United States v. Palmer, 761 F.Supp. 697, 705 (D.Idaho 1991) (despite court's concern that the defendants were not capable of producing the amount, court could not reduce it as defendants did have the intent to produce such amount).

Although the guidelines do not specifically address how the Court should calculate the amount of controlled substances in cases of conspiracy to manufacture, not involving negotiation to traffic in the drug, the above guideline commentary and cases suggest that variables such as a cooker's inexperience in manufacturing the drug should not matter so long as the individuals involved in the conspiracy possessed the intent to produce a certain amount. The best approach, in the Court's view, is to calculate the guideline amount based on the amount of Methcathinone that presumably would have been involved had the defendants been successful. United States v. Kingston, 922 F.2d 1234, 1237-38 (6th Cir.), cert. denied, 500 U.S. 933, 111 S.Ct. 2054, 114 L.Ed.2d 460 (1990) (basing the sentence on the amount of the controlled substance that would have been involved had defendant been successful was the fairest approach).

The Sixth Circuit implicitly approved this approach in United States v....