USA. v. Young, 00-3007

• Decision Date: 11 May 2001
• Docket Number: No. 00-3007,00-3007
• Citation: 247 F.3d 1247
• Parties: (D.C. Cir. 2001) United States of America, Appellee v. Jerome Young, a/k/a Akbar Muhammed, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1247

247 F.3d 1247 (D.C. Cir. 2001)

United States of America, Appellee v. Jerome Young, a/k/a Akbar Muhammed, Appellant

No. 00-3007

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2001

Decided May 11, 2001

Appeal from the United States District Court for the District of Columbia (No. 89cr00387-02)

A. J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant.

Thomas S. Rees, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, John R. Fisher, Mary-Patrice Brown and John Phillip Dominguez, Assistant U.S. Attorneys.

Before: Henderson, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

In this appeal, Jerome Young challenges a criminal sentence he received in 1991 for conspiracy to manufacture and distribute phencyclidine (PCP). Although Young did not appeal from this sentence when it was first imposed, he now seeks a sentence reduction based on a subsequent amendment to the United States Sentencing Guidelines (U.S.S.G.). The district court denied Young's motion, concluding that the amendment did not affect the manner in which Young's sentence was calculated. We agree and therefore affirm.

I

On December 4, 1989, Young pled guilty to one count of conspiring to manufacture and distribute 100 grams or more of pure PCP, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iv), and to one count of using or carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c). Judgment at 1. Young's initial sentencing hearing occurred on February 26, 1990. The presentence report (PSR) stated that Young and a co-conspirator were engaged in a PCP manufacturing operation, the first stage of which had produced a quantity of piperidino cyclohexanecarbonitrile (PCC).¹ The report stated--as Young had acknowledged during his plea hearing--that at the time of his arrest Young was in a van, travelling to a location where he could acquire a quantity of phenylmagnesiumchloride (PMC), a chemical he planned to use to convert the PCC into PCP. 1990 PSR p 12; Change of Plea Tr. at 23, 28-32. The police stopped the van, arrested Young, and seized 682 grams of PCC crystals, a bottle containing 35 grams of pure PCP, and a Walther PPK handgun. According to the presentence report, the 682 grams of PCC, when combined with PMC, would have yielded 862 grams of pure PCP. 1990 PSR p 13.²

The presentence report calculated the weight of the controlled substance involved in Young's crime by adding the 35 grams of pure PCP seized from Young to the 862 grams of pure PCP that could have been manufactured from the PCC in his possession, producing a total of 897 grams of pure PCP. 1990 PSR p 22; see United States v. Young, 89-CR-00307-02, slip op. at 2 (D.D.C. Dec. 15, 1999). The Drug Quantity Table of Sentencing Guideline 2D1.1(c) specified a base offense level of 34 for a "mixture or substance" containing 300-1000 grams of pure PCP. See U.S.S.G. 2D1.1(c) (1989); id. at n.*. To this, the district court applied a two-level upward adjustment for use of a special skill, U.S.S.G. 3B1.3 (1989), and a two-level downward adjustment for acceptance of responsibility, U.S.S.G. 3E1.1(a) (1989), leaving Young's offense level unchanged at 34. 1990 Sentencing Tr. at 6, 24. Based on that offense level, and on the presentence report's calculation of Young's criminal history category, the district court sentenced Young to 188 months' imprisonment on the PCP charge and to a mandatory consecutive term of 60 months on the firearm charge. 1990 Sentencing Tr. at 24-26.

Defendant agreed with the presentence report's description of his offense conduct, and objected neither to the finding that his crime involved 897 grams of pure PCP, nor to the conclusion that this produced a base offense level of 34. 1990 PSR p 18; id. at 16. He did object, however, to the two-level upward adjustment for use of a special skill, and ultimately prevailed on that point on appeal. See United States v. Young, 932 F.2d 1510, 1515 (D.C. Cir. 1991). When the district court resentenced Young on December 18, 1991, the presentence report again stated that he had been arrested with 35 grams of pure PCP and 682 grams of PCC, and that the latter would have produced 862 grams of pure PCP. 1991 PSR p 13. Based on a combined total of 897 grams of pure PCP, the district court again--and again without objection-assigned Young a base offense level of 34 and applied a twolevel downward adjustment for acceptance of responsibility. 1991 PSR pp 22, 27. Young was sentenced to 150 months' imprisonment on the PCP count and to 60 consecutive months on the firearm count.³ He did not file a direct appeal from the resentencing.

II

On November 24, 1998, Young filed a motion to reduce his 1991 sentence with the same district judge who had sentenced him twice before. The motion was filed pursuant to 18 U.S.C. 3582(c)(2), which permits a court to modify a term of imprisonment "in the case of a defendant who has been sentenced ... based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Young asserted that his sentence should be reduced because of Guideline Amendment 484, which, effective November 1, 1993, altered Application Note 1 to U.S.S.G. 2D1.1. At the time of Young's 1991 resentencing,⁴ Application Note 1 stated: " 'Mixture or substance' as used in this guideline has the same meaning as in 21 U.S.C. 841." U.S.S.G. 2D1.1, comment., n.1 (1991). Amendment 484, in relevant part, added that "[m]ixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used." U.S.S.G. app. C, amend. 484. The amendment went on to note that "[e]xamples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from an illicit laboratory used to manufacture a controlled substance." Id.

Young argued to the district court that, pursuant to Amendment 484, the weight of the PCC should not have been used in determining his offense level. As support, he cited commentary to the amendment which, he contended, clarifies that the term "mixture or substance" does not include the weight of "chemicals seized before the end of processing [that] are not usable in that form because further processing must take place before they can be used." U.S.S.G. app. C, amend. 484, comment. The PCC at issue in this case, he claimed, was such a chemical.

The district court denied Young's motion on two grounds. First, the court held that Amendment 484 does not apply to PCC because PCC is not a material that, in the amendment's words, "must be separated" from PCP before PCP can be used. The commentary's reference to seized chemicals, the court concluded, refers to waste byproducts of the manufacture of a controlled substance and not to precursor chemicals like PCC. Young, slip op. at 3-4.

Second, the district court held that Amendment 484 would not reduce Young's sentence in any event, because the court had not sentenced Young under the provision altered by Amendment 484--namely, Application Note 1 to Guideline 2D1.1. Rather, Young had been sentenced under Application Note 12, which applies when the amount of drugs seized does not reflect the scale of the offense. The court said that, in applying the latter note, it had based Young's sentence not on the amount of PCP or PCC he possessed, but rather on his capacity to produce a total of 897 grams of pure PCP. Accordingly, whatever changes were wrought by Amendment 484, they were inapplicable to Young's case. Young, slip op. at 5.

III

The parties are in accord that the issue presented in this case is a legal one, and hence subject to our de novo review. See United States v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000). As we conclude that the district court's judgment was correct even on that standard, we need not consider whether a more deferential standard of review would be appropriate. See id. (describing applicable standards of review in Guidelines cases). Moreover, because we agree with the district court's second rationale--that Young was not sentenced under a provision affected by Amendment 484--we also need not consider whether that amendment excludes the weight of a precursor chemical like PCC from the weight of the "mixture or substance" to which the Drug Quantity Table of 2D1.1(c) applies.

The Drug Quantity Table of Guideline 2D1.1(c) establishes the base offense level that corresponds to the weight and kind of controlled substance involved in a defendant's offense. As provided in the guideline, "[u]nless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." U.S.S.G. 2D1.1(c), n.*. The guideline further provides that "[i]n the case of a mixture or substance containing PCP," the court should "use the offense level determined by the entire weight of the mixture or substance, or the offense level determined by the weight of the [pure] PCP ..., whichever is greater." Id. (emphasis added).

Prior to its 1993 amendment, 2D1.1 did not define "mixture or substance," other than to state, in Application Note 1, that the term "has the same meaning as in 21 U.S.C. 841." That statute establishes penalties for crimes involving "mixture[s] or substance[s]" containing specified narcotics, but also does not define the term. The effect of Amendment 484 is to clarify that, in using the Drug Quantity Table, the sentencing court is to exclude from the weight of the "mixture or substance" any "materials that must be separated from the controlled substance before the controlled substance can be used." U.S.S.G. app. C, amend. 484....