United States v. Donald Bogusz, A/K/A Bogey, United States of America v. John O'rourke, A/K/A Hap

the district court to instruct will not at this time. That jury verdict certify the district court’s left to the

question will be proper upon motion

sound discretion party. other

Republic or some America, Appellee STATES

UNITED BOGUSZ, Bogey, Appellant.

Donald a/k/a America, Appellee

UNITED STATES O’ROURKE, Hap, Appellant.

John a/k/a 92-5575,

Nos. 92-5595. Appeals, Court

Third Circuit. Aug.

Argued 28, 1994. Dec.

Decided (argued) Inger-

Glenn A. Zeitz and Julia S. soll, PA, Talty, Philadelphia, ap- Zeitz & for pellant Bogusz. Donald Durkin Dennis A. and David D.F. Law- rence, Durkin, Newark, (argued), Durkin & NJ, appellant for John O’Rourke. Chertoff, Axelrod, Michael Edna B. Schwartz, Esquire (argued), Leslie F. Office Newark, NJ, Atty., appellee. fact, Bogusz quality. In indicating poor HUTCHINSON PRESENT: LUDWIG, methamphetamine to a co- gave of his half NYGAARD, Judges, and Circuit other half be- conspirator and returned the Judge.* District poor quality. cause of its THE COURT OF OPINION 17, 1992, Bogusz pled guilty On' March HUTCHINSON, Judge. Circuit conspiracy to agreement to a plea under a phenyla- (“Bogusz”) pounds and than two of Bogusz distribute more Donald Appellants, (“O’Rourke”), chemical, appeal acid, knowing that it criminal cetic a listed John O’Rourke methamphet- the United on them to manufacture imposed would be used sentences substance, of New amine, for the District in violation of Court a controlled District States (West 841(d)(2) sentenced Bo- Supp.1994). § court Jersey.1 The district 21 U.S.C.A. trial, and O’Rourke to jury months gusz May to 120 after a O’Rourke On criminal for their imprisonment conspiracy months of of a to manufacture was convicted labora- methamphetamine with a in involvement intent to distribute methamphetamine with erroneously (West district court tory. Supp. § Because of 21 violation U.S.C.A. Sentencing States interpreted 1994) the United to distribute possession and with intent (the “Guidelines”),2it miscalculat- kilogram in of one of excess O’Rourke’s sentences. Bogusz’s 841(a)(1) and ed § in of 21 violation U.S.C.A. Therefore, both their sen- will vacate we (West Supp.1994). resentencing. for and remand tences Bogusz’s sentencing, the district court At probation adopted a recommendation Background I. “PSR”) (the Report to office’s Presentence sentencing, appeal focuses Because than higher a base offense level to summary the facts material a plea agreement. stipulated Bogusz’s one August is needed. On issues stipulated Bogusz and the had to jury returned an indict- grand a federal 24, applying a base offense level individuals, including against twelve ment 2Dl.ll(d)(3); § recommended but the PSR O’Rourke, charging with them Bogusz and § a of- applying U.S.S.G. 2D1.1 with base manufacture and in a scheme to participation Using level of 34. a cross-reference fense Bogusz methamphetamine. locat- distribute 2Dl.ll(e)(l) to section from section phenylacetic glassware ed and obtained district court decided the base offense acid, precursor, for the methamphetamine a phenylacetic 34. Because acid level was process. production methamphetamine Sentencing included in section 2Dl.l’s “plumber.” In that as a O’Rourke served Table, required 2D1.1 conver- use of section unclogged capacity, he drains became quantities phenylacetic sion of the acid methamphetamine manu- during the blocked pro- those of a substance on the table. The facturing process. preparing officer the PSR converted bation received metham- Bogusz and O’Rourke eight pounds phenylacetic acid to two part of the consideration as methamphetamine, the amount of pounds of received four of the O’Rourke their services. produced pheny- from the produced eight pounds of lacetic acid. got pipes on the while he worked produced The also recommended that sentenc- PSR pound. one (actu- “sticky” upon “methamphetamine and “like caramel” be based was described as * review, Upon Ludwig, dened him. we hold that these District Hon. Edmund V. States Pennsylvania, Judge Eastern District of issues lack merit. for the sitting designation. stated, otherwise all references to the 2. Unless appeals conviction. In that 1. O’Rourke also his version, to the 1991 the Guide- (1) Guidelines are respect, argues: district court he appellants’ effect at the time of the sen- lines in refusing his trial from his co- erred in to sever (West 3553(a)(4) tencing. (2) U.S.C.A. See 18 between the the variance defendants 1985). unduly proof bur- at trial and indictment al)” opposed “methamphetamine.”3 II. Jurisdiction and Standard Review pounds offense level for two The base subject juris- district court had matter section diction over these pursuant criminal eases 2Dl.l(c)(5) (Drug 2D1.1 was 34. U.S.S.G. (West 1985). 18 U.S.C.A. We have Table). Quantity ultimately This resulted jurisdiction appellate over this consolidated Sentencing Bogusz’s 120-month sentence. (West 1993) appeal under 28 U.S.C.A. 1291 2Dl.ll(d)(3), under section with its base level (review decisions) of final and 18 U.S.C.A. stipulation in accord with the in the (West 1985) (review sentences). § 3742 plea agreement, would have resulted sentencing range of 51 to 63 months. See Guidelines, Under the we review Table). (Sentencing Pt. A U.S.S.G. Ch. findings district court’s of fact for the limited Applying acceptance a two level reduction for purpose determining they whether are responsibility history and a criminal cate- clearly Miele, erroneous. United States v. level, gory of III to this offense the Guide- (3d 659, Cir.1993); 989 F.2d 663 United Bogusz lines indicated should be sen- Belletiere, (3d 961, States v. 971 F.2d 964 imprisonment. tenced to 151 to 188 months of Cir.1992); 3742(e) § see also 18 U.S.C.A. statutory maximum Because sen- (West Supp.1994) (reviewing courts “shall ac 841(d) § 21 tence under U.S.C.A. is 120 cept findings of fact of the district court months, Bogusz the district court sentenced erroneous”). they clearly unless are Find 5Gl.l(a) § to 120 months. See U.S.S.G. ings clearly of fact are erroneous when “the (“Where statutorily authorized maximum reviewing court on the entire evidence is left sentence is less than minimum of the with the definite and firm conviction that a applicable guideline range, statutorily au- mistake has been committed.” United States thorized maximum sentence shall be the Co., Gypsum 364, 395, v. U.S. 333 U.S. 68 sentence.”); guideline see also United States (1948). 525, 542, Findings 92 L.Ed. 746 (3d Cir.1989) 735, Donley, v. 878 F.2d involving questions mixed of law and fact are (“the underlying in statute shall control case subjected demanding scrutiny to a more “ap Guidelines”), Sentencing of conflict with the proaching de novo review as the issue moves 1058, 1528, 110 S.Ct. strictly strictly from one of fact one of (1990). 108 L.Ed.2d 767 Belletiere, (quoting law.” 971 F.2d at 964 sentencing, At O’Rourke’s the district Murillo, 195, United States v. 933 F.2d again adopted court recommenda- PSR’s (3d Cir.1991)). When the essential facts are § again tion to 2D1.1 and U.S.S.G. dispute, not our review of the district decided that was Guidelines, interpretation court’s like (actual). Based on the interpretation, our review of a statute’s eight pounds methamphetamine produced Rosen, plenary. See United States v. pipes, when he worked on the O’Rourke re- (3d Cir.1990). 789, must, 790-91 ceived a base offense level of see U.S.S.G. however, Sentencing defer to the Commis 2Dl.l(c)(3), granted but the district court interpretation sion’s of the Guidelines unless point O’Rourke a four offense level reduction “it violates the Constitution or a Federal mitigating for his role. See U.S.S.G. with, Statute, plainly inconsistent 3B1.2(a). Using history catego- a criminal of, interpretation [provision].” erroneous ry IIof and an offense level of — States, -, Stinson v. United put O’Rourke in a 113 S.Ct. range imprisonment. of 168 to 210 months (1993). Table). (Sentencing A See U.S.S.G. Ch. Pt. O’Rourke was sentenced to concurrent sen- III. Discussion imprisonment months tences on each Bogusz Bogusz challenges count. Both four O’Rourke filed raises to the dis- timely appeal. joins notices of trict court’s sentences. O’Rourke with (ac- subjects methamphetamine appeals 3. Section 2D1.1 an issue these which we discuss infra tual) to a more severe base offense level. What in Part III-A. (actual) phrase methamphetamine means is marijuana); gram see also United First, to one contend that both him in two. (10th Lande, unanalyzed 330 n. 1 finding the v. States court erred district Carroll, Cir.1994); upon which their sentenc- States v. methamphetamine, (ac- Cir.1993) based, (11th (discussing be ing the effect was tual). Second, the district argue that both (citing sentencing) Cir.1990)), tacitly finding that the meth- Brown, court erred n. 2 789 & Dextro-methamphetamine amphetamine was nom., rt. sub. Jessee Unit denied ce — opposed to'Levo- (“D-methamphetamine”) as States, U.S. -, 1234, 127 ed (“L-methamphetamine”). L.Ed.2d § 2D1.1 Third, argues that U.S.S.G. court defined The district of 21 U.S.C.A. apply to violations does “pure methamphetamine.” (West 841(d)(2) Supp.1994), and that explained: The court then pro- is the Guidelines’ 2D1.11 Well, you “pure.” I’m pure is how define Fourth, this offense. applicable vision it, product, not defining “pure,” as uncut government is vio- that the Bogusz contends good product or product was whether by argu- him agreement with lating plea erroneous, may product. Now that be bad of the district court’s sen- affirmance appeal. in which case I’ll be reversed on challenge in each will address tence. We that a cara- But the fact of the matter is turn. critical mess to me is not the mel-like Treatment is,

A. Guidelines’ what came out of point; point that’s Methamphetamine process, manufacturing and it had not yet cut. been 2D1.1, sentencing To U.S.S.G. whether the sub- first determine court must Bogusz Appendix Bogusz at 85. methamphetamine stance in is (ac- methamphetamine argue O’Rourke (actual). This determina- methamphetamine tual) purity percentage to the of the refers We must tion involves two related issues. is, they argue that meth- product. end That methamphetamine first consider whether (actual) net amphetamine refers to the helped produce and O’Rourke methamphetamine hydrochloride amount of necessary methamphetamine, a “pure” was upon which sentenc- present the substance classification as metham- condition for its ing is based. (actual), then the more com- commentary defines meth- The Guidelines’ government plex question of whether (actual) weight amphetamine as “the D- prove that the substance is must also itself, substance, contained in the controlled L-methamphetamine. 2Dl.l(c), U.S.S.G. mixture or substance.” comment.(n.*).5 provide The Guidelines also (Actual) Methamphetamine 1. following example: illustrative “a mixture methamphet between The difference weighing grams containing 10 PCP at 50% (actual) high is amine (actual).” purity grams contains 5 PCP Id. ly purposes: meth significant for (under Guidelines, and metham- PCP (actual) subject to an offense amphetamine identically). phetamine are treated methamphet greater times than level ten comment, (n. Unfortunately, commentary amine. Table) (one 10) susceptible interpreta- Guidelines is either gram of (Drug Equivalency (actual) support. “pure,” tion of and each has case law is treated as Macklin, Compare v. 927 F.2d marijuana equivalent grams ten while (2d Cir.) 1272, “pure” (holding that gram methamphetamine equivalent 1282 one amendments, Chapman of all other controlled substances. See 4. the Guidelines Prior to the 1991 States, 453, 462-63, pure instead of actual. See also used the term U.S.S.G. 111 S.Ct. v. United C., App. 1926, 1919, amend. 395. gross 114 L.Ed.2d 524 weight is known as a “market oriented method respect, In this the Guidelines’ treatment 461, approach.” at 111 S.Ct. at 1925. contrary to the and PCP is calculating quantity gross weight method of

87 unadulterated), merely quantities means uncut or cert. smaller of more concentrated — denied, -, 146, methamphetamine. 112 U.S. S.Ct. 116 (1991); Patrick, L.Ed.2d 112 United States v. government’s Chapman reliance on (11th Cir.1993) (same dicta) 983 F.2d 206 States, 453, 461, 500 111 U.S. S.Ct. (“the Carroll, only way with 6 F.3d at 746 and its quantity ‘pure methamphet calculate the Congress’ discussion of “market-oriented” determining amine’ in a defendant’s of base approach misplaced. is also Supreme As the 2Dl.l(c) multiply level fense is to Chapman, Court Congress noted and the purity weight”), of the mixture times the Guidelines identified methamphetamine and nom., cert. denied sub. Jessee v. United drugs warranting PCP as differential treat- — States, -, U.S. S.Ct. regard ment with purity provided and thus (1994); Rusher, L.Ed.2d 577 United States v. unique for their sentencing scheme. See id. (4th Cir.) (same), 459-60, at interpreta- 1924. An — purity tion of upon that relies the treatment (1992); Alfeche, L.Ed.2d 266 United States v. of other controlled substances conflicts with Cir.1991) (same); unique the Guidelines’ treatment of metham- Brown, United States v. 789-90 phetamine. (8th Cir.1990) (same); see also United States After consideration of the text and com- (2d Cir.1993) Spencer, mentary Guidelines, existing of the case law (noting pure methamphetamine does not peculiar sentencing and the scheme for meth- weight impurities). include the amphetamine, we hold that (actual) refers to net amount of argument, At oral argued methamphetamine hydrochloride produced adoption appellants’ interpretation gross and not the amount of uncut metham- being “poor would reward them for cooks.” Thus, phetamine. Transcript Arguments of Oral at 46. This refers to the net amount of contention reflects a fundamental misunder- hydrochloride impurities, amine after all standing methamphetamine production of waste, byproducts, cutting agents or are re- and the Guidelines’ treatment of it. Sentenc- moved. methamphetamine drug for offenses is government argues The that punish equally. intended to all cooks Sen- and O’Rourke did not that show the metham tencing methamphetamine phetamine cutting agent, “contained a waste punishes particularly good cooks and then- product, any substance than other employers severely. Methamphet- more Appel controlled substance itself.” Brief amine, produced through as normal chemical essence, government lee at 46. In is processes, contains a of impurities. number arguing that defendants bear the burden of Spencer, (noting See at 121 that meth- showing portion of the substance that is amphetamine results from a “chemical reac- (actual). methamphetamine argu This yields tion methamphet which a mixture of Although purity ment fails. of a meth impurities”); and various United amphetamine product does not bear on a Stoner, (1st Cir.) States v. and, thus, guilt defendant’s or innocence does (noting methamphetamine “virtually “beyond not invoke the a — reasonable doubt” completely pure”), never is 358, 360, Winship, standard of In re 397 U.S. S.Ct. 116 L.Ed.2d 96 it (1991). product pro The initial can then be profound does have a effect on the sentence impurities. cessed further to remove these imposed, government and the bears the bur purified product, being The more concentrat it, proving by only preponder den of albeit a ed, larger quantities can then be cut into for ance of the evidence. See United States v. interpretation Bogusz resale. The and Miele, (3d Cir.1993). urge O’Rourke on us does not reward bad cooks; instead, situations, merely punishes it analysis more se In some a chemical verely sophisticated purity may cooks who could oth the substance that indicates manipulate by produc- erwise required government be for the to meet this by a factor of 250 to drug equivalency tables others, circumstantial evidence In

burden. parties appreci An initial failure of the hold may be sufficient. purity chemistry and thus to inform involved produce evidence ate the must of the scientific basis hydro- the district court methamphetamine quantity of the consider requires us to if a this contention contains mixture chloride have waived Bogusz and O’Rourke whether under U.S.S.G. be sentenced is to defendant (actual). between any regarding the distinction issue § 2D1.1 for L-methamphetamine. Discussion D- and ease, evidence some of the In this chemistry that un principles organic court’s supports the district trial produced at prob necessary before the this issue is derlie testimony Trial purity. finding of 100% tacit D- by the distinction between lem created posses were in the defendants showed understood. L-methamphetamine can be and equipment, recipe, proper sion of a functional Ammar, was, howev There requisite chemicals. (3d Cir.) (pre-Guidelines case discuss 261-64 consisten er, the color and on other evidence L-heroin), D- and ing chemical difference between poor quali indicated cy product which of the sub nom. Stillman t. denied cer finding a supported ty could have States, 936, 104 Manufactured impurity. L.Ed.2d 311 sophistica pure regardless of the not 100% molecule, like most Therefore, gov equipment. tion of the molecules, in different “iso- organic exists solely nature of rely on the cannot ernment compounds “are meric” forms. Isomers assume that the process and production molecular formula but differ- have the same pure product total Hart, Harold Or- ent structural formulas.” sentencing under metham which calls for Chemistry: A ed. ganic Short Course Instead, (actual). we think there Text”). 1983) Chemistry (“Organic Just evidence, on finding, based on should be right- left-hand domi- people are either methamphetamine hydrochloride how much nant, can sometimes exist a molecule that constitutes the in the mixture is included Organic right- left-handed forms. See the district court product. Because end 125-26; Roger Heg- Chemistry Text at A. finding, we will remand failed to make such Kondepudi, Handed- Dilip strom & K. finding purity fact for further Universe, American, ness Scientific product.6 (“Hegstrom Kondepudi at 108 & Jan. Patrick, Article”); Composition Organic 2. (11th Cir.1993). A “that molecule aspect of metham the second On property of handedness” is called exhibits the Bogusz sentencing, phetamine both The two forms of the a chiral molecule.7 court’s tacit challenge the district O’Rourke chiral molecules are called enantiomers.8 methamphetamine was assumption that the Dextro opposed to L-meth Each enantiomer is labelled either D-methamphetamine as Levo, Kondepudi Hegstrom or D or L. & grossly two are different .amphetamine. The and, see, Article at 109. The difference is determined as we shall physiological in effect light. right- D by optical in rotation of is reflected the Guidelines this difference is by suggested giving Chirality Louis Past- that 7. was discovered in 1847 6.It has sometimes been 108; requi Hegstrom Kondepudi chance to make the at a second eur. See & Article origi showing was unable to achieve that it Organic Chemistry site nally Text at 127. Jeopardy with the Double is inconsistent Court, the Fifth Amendment. This Clause of Thus, are isomers that are not enantiomers however, “sentencing proceedings has held is, image; that identical with their mirror implicate Dou as to are not ... so trial-like Organic nonsuperimposable. enantiomers are Johnson, Jeopardy Wilmer v. ble Clause.” example, Chemistry at 121-25. For Text - (3d.Cir.), right image right of a hand is not another mirror (1994); see 130 L.Ed.2d a left Id. hand but hand. -, -, Bohlen, Caspari -U.S. also (1994) (refusing 127 L.Ed.2d issue). to decide this juana, and L is left-handed. is gram handed One one of methamphetamine is other; is, image they equivalent mirror are kilogram marijuana, one (actual) symmetrical. Although gram mirror Id. methamphetamine enan- one is only respect chirality, equivalent tiomers differ with kilograms marijuana).11 to 10 body highly mind, the human “is sensitive to enan- With this background chemical in we example, tiomeric differences.” Id. For consider first whether by the issue raised thalidomide birth defects the 1960’sresult this distinction physiological in their effect fairly ed because one enantiomer of thalidomide was raised before the district court. stopped morning Bogusz sickness while the other precise O’Rourke never used caused birth defects. Id. at 109-10.9 chemical terms in arguing question. this They lumped together this issue with their Methamphetamine exists in these two iso- arguments on purity they objected when L-methamphetamine meric forms.10 is a upon unanalyzed based an sub- compound produces physio- little or no Nevertheless, stance. we conclude that Bo- Carroll, logical ingested. effect when gusz’s objections and O’Rourke’s to sentenc- D-methamphetamine, at 743. on the other unanalyzed based on the pro- substance hand, produces physiological effect de- methamphetamine duced at the laboratory sired users. fáirly preserved raised and the issue for ap- text U.S.S.G. 2D1.1 differentiates peal. only between and meth- Even if (actual). and O’Rourke were amphetamine previously We have raising the issue for appeal, the first time on drug discussed that distinction as it involves we could nevertheless review the trial court’s purity, organic structure. The findings plain for error. See Fed.R.Crim.P. posed now is whether the isomeric structure 52(b) (“Plain affecting errors or defects sub methamphetamine, as well as the net rights may stantial although they be noticed quantity methamphetamine hydrochloride, brought were not to the attention of the sentencing. is relevant to Guidelines court.”). We believe under these cir Guidelines do not differentiate between the interpretation cumstances the D- district court’s and L-isomers of plain of the Guidelines would be the text of section error. Be but commentary There, objections cause of sentencing, to it. at Drug Tables, Equivalency factually case differs L-methamphetamine from United States v. Deninno, Cir.1994), severely treated far less than either metham- (actual): phetamine which Appeals the United States Court of factor of Eleventh Circuit refused to consider a methamphetamine by a appellant’s factor of 25. similar claim because of the com comment, (n. 10) § 2D1.1 (Drug plete object sentencing. failure to More Table) (one Equivalency over, gram of considering gross disparity L-metham- in sen equivalent grams tencing, to 40 disagree of mari- we with the Deninno disparate recognize only 9. Not all have enantiomers such effects two chemical forms of metham- See, body. e.g., Jersey on the human Cathcart, DL-methamphetamine merely New v. with 340, 193, N.J.Super. being 247 589 A.2d 198 a combination of the two forms. See Or- (App.Div.1991) (discussing ganic Chemistry (defining the similar effects of Text at 127 a racemic L-cocaine); Puglisi, enantiomers”). D- and United States v. 790 mixture as "a 50:50 mixture of 240, Cir.) (2d (same), denied, analysis 242 cert. 479 Our would be unaffected if a third form 827, 106, (1986); U.S. 107 S.Ct. 93 L.Ed.2d 55 does exist. Bockius, 1193, United States v. 564 F.2d 1195 (5th 1977) (same); Cir. United States v. Orzechow Drug Equivalency generally 11.The Tables are ski, 978, (7th Cir.1976) (same), 547 F.2d 985 only used when a controlled substance is not denied, 906, 1701, 431 U.S. 97 S.Ct. 52 L.Ed.2d Table, Drug Quantity listed in the U.S.S.G. (1977). 391 1.1(c), necessary § 2D or when it is to combine different controlled substances. See U.S.S.G. comment, Circuit, Ammar, (n.10); 10. The Eleventh in United States v. Car- 714 F.2d cf. roll, 735, (11th Cir.1993), (upholding conspiracy 6 F.3d 743 described a at 263 heroin conviction methamphetamine; distinguishing third form of DL-metham- without between D- and L-isomers texts, however, phetamine. them). distinguish Standard seem to because statute did not 90 chemistry organic principles of clearly the of the holding that determination court’s objections the district to that underlie their entirely a factual type is of the Guidelines.13 application court’s plain of to the level cannot rise that Id.

error. Thus, considering magnitude of sentencing that could result difference' recently plain a defined Fifth Circuit wrong organic application of the from the failure to [a] “so obvious that as one error isomer, sentencing court’s fail- think we fairness, seriously affect it would notice result to this determination would ure make judicial reputation of the public or integrity, justice.14 will miscarriage of We grave in a miscarriage in a and result proceeding be- the distinction thus whether consider Hoster, 988 F.2d v. States justice.” United right-handed left- and isomers tween the Cir.1993) (5th United (quoting 1374, 1380 is material to the Guide- Cir.1992),methamphetamine (5th 19, 21 Surasky, v. States imposed legally that can be lines sentences — U.S. -, 113 S.Ct. rt. ce Bogusz and O’Rourke. on (1993)); see also Unit 1948, 123 653 L.Ed.2d — U.S. -, -, Olano, Carroll, 113 735 ed States States United In (1993). 1776, 1770, (11th Cir.1993), L.Ed.2d 508 Appeals 123 for the the Court S.Ct. “plain separate the term metham- recognize sought that error” Eleventh Circuit apparent as that is of its iso- normally implies phetamine’s purity an error from the effect v. Atkin case, sentence unjust. that the defendant’s as mers. In well 391, 392, son, 160, 157, 80 that con- 56 S.Ct. U.S. was based 297 however, (1936).12 Here, we think D- L-methamphetamine. and 50% tained 50% 555 L.Ed. held, Id. at injustice Appeals “the of the The Court egregiousness between the between if the distinction distinction result would (actual)] outweighs [methamphetamine refers recognized is not two isomers purity any methamphetamine relative to articulate Bogusz and O’Rourke failure of person a plain compound with or no effect require a little said to 52 is sometimes 12. Rule potent mind-altering drug produces United States v. would an obvious error. See who to be error 1991) (relying Cir. Blythe, 359 interpreting Guide- 'When seem irrational. lines, dissenting opinion exclusively Scalia's on Justice statutory canons we traditional 923, 952-54, States, U.S. v. United Thus, Peretz interpret we will not construction. (1991)). 115 L.Ed.2d S.Ct. a manner that leads to irrational however, Court, plain defined Supreme has interpretations alternative consis- results when obvious, [that] oth that “are as errors errors erwise objectives Sentencing of the Reform tent with the fairness, integrity seriously affect the See, e.g., v. Oceanic Act are available. Griffin judicial proceedings." reputation public Inc., 102 S.Ct. Contractors 3245, 3252, Atkinson, In at 392. S.Ct. The Sen- Olano, - U.S. States v. tencing "an effec- Reform Act intended to create Supreme 123 L.Ed.2d tive, sentencing system." Ch. Pt. fair 52(b), Court, appel discussing Rule stated intro, end, ... "To achieve A comment. (1) there is an available when: review is late sought proportionality Congress (3) error; (2) "plain;” the error the error system imposes through appropriately dif- at ---, rights. affects substantial differing criminal conduct of ferent sentences synonymous with "Plain is at 1776-77. S.Ct. severity.” Id. or, equivalently, obvious. ... At a mini clear mum, Appeals cannot correct an the Court 52(b) the error is pursuant to Rule unless error clear under current confusing textual use the Guidelines’ 14.Because at -, law.” Id. unexplained and its distinc- "actual” term (internal omit quotations at 1777 citations present commen- tion the two isomers in the between obvious, ted). Though not error was table, tary’s equivalency we can- reference thus, clear; Bogusz’s and if we think it was even failing appre- district court for criticize appreciate the technical failure to O’Rourke's suggest problem. Some commentators ciate this waiver, objection was a for their chemical basis possess lawyers generally appalling "an de- that 52(b) would requirements of we think the Rule illiteracy, gree equips ill them of scientific which great in the be met because of the difference guide Andre A. to the bench.” educate commentary that the of the two substances effect al., Evidence in Criminal et Scientific Moenssens 2Dl.l(c) recognizes when it distin to U.S.S.G. (3d 1986) (discussing difficulties Cases 7 ed. guishes of 250 to 1. a conversion factor them by judges determining experienced in the admis- evidence). Moreover, sibility expert sentencing imposes of that a scheme 13. produces penalty person a a same on who particular compound; it does not refer to a would have a base offense level of methamphetamine.” Id. at form of 744. 16 a range with Guidelines of 21 to 27 months Thus, L-methamphet- the 50% D- and 50% imprisonment. See U.S.S.G. Ch. Pt. A compound pure Table) amine could be 100% for (Sentencing (assuming a criminal his- purposes calculating methamphetamine I). of tory category of Another defendant sen- (actual). Judge Bright dissented from the gram pure tenced for one of L-methamphet- majority’s “drug quality issue.” Id. at 747. grams amine and an additional 200 of mari- great Because the Guidelines “caused confu- juana (thus, requiring conversion under the Table) sion due to the convoluted chemical rhetoric” Drug Equivalency would have a base area, required by in application their this offense level of 6 and a sentencing range of Judge Bright would have affirmed the lower zero to six months. See U.S.S.G. Ch. APt. purity court’s conclusion that should Table) be (Sentencing (again, assuming a crimi- quantity D-methamphet- I). based of history nal category of Id. at amine. 749.15 Accordingly, we hold that the refer reading An isolated literal of U.S.S.G. ences to methamphet 2Dl.l(e) support does offer some in Drug Quantity Tables of majority’s separation purity Carroll of the 2Dl.l(c) solely quantities refer to problem from the difference in the effect of D-methamphetamine. In order to calcu think, however, the two isomers. We a late base offense level under section separation purposes such a for of Guidelines’ 2Dl.l(c) L-methamphetamine, for the sub sentences would obliterate the distinction be- stance in must first be converted tween the effect of the two isomers that the marijuana equivalents. into See U.S.S.G. commentary recognizes any Guidelines’ in comment, (n. 10) (noting that Drug Equivalency in which case Tables Drug Quantity do Tables not include all sub Considering are not used. the difference Drug stances and Equivalency that the Ta physiological between the effect the two bles should used be for those that are not isomers, along Sentencing with the Commis- included). recognition sion’s of that difference in its use ratio, of conversion factors with a to 250 Because no determination of the iso disparity composition would result meric was contrary seems to us Congress’s to one of at sentencing, made this issue must also be primary goals passing Sentencing considered on again Re- remand. We remind the uniformity form Act—the substitution government produc that it has the burden of disparity in sentencing.16 think persuasion tion and on this issue and that the way proper Guidelines should not be construed in a persuasion standard for the burden of greatly dispari- preponderance results so irrational a is a of the evidence. The illustrate, Carroll, ty. type To proof required satisfy defendant to this stan gram pure convicted of one L-metham- vary dard will also from case In to case.17 Judge Bright complexity taking judicial lamented the district court for amphetamine notice meth apparent D-methamphetamine), confusion in the was Guidelines' treatment , U.S. -, Carroll, methamphetamine. 130 L.Ed.2d 6 F.3d at 749 denied — (1994); Patrick, J., (requiring 983 F.2d at (Bright, dissenting). We add our voice to his government prove to that conviction was based lament. upon D-methamphetamine). We do not think Sentencing sought 16. Reform Act of 1984 that this standard will create either an insur uniformity sentencing by achieve "reasonable meaningless mountable burden or a hurdle for but, rather, narrowing disparity merely the wide recognizes in sentences im- posed organic composi for similar criminal offenses the distinctions between the committed intro, 1, A, purity similar tions and levels of offenders.” U.S.S.G. Ch. Pt. require. We think some evidence of comment. quantity of each isomer is needed because Lande, 17. See United States v. 330- Congress Sentencing and the Commission (10th Cir.1994) (affirming a district court’s enough deemed different finding D-methamphetamine upon based cir- unique sentencing warrant inapplicability scheme. The evidence); Wessels, prohibition against hearsay cumstantial United States v. Cir.1993) (reversing sentencing proceedings, see United States v. result, interpretation fearing an that such include a chem- cases, will evidence

some others, testimony. In effectively nullify various sections expert analysis or “would ical isomer is of which evidence geared particular to a de- circumstantial pre- to meet the may sufficient be present specific conduct.” Id. fendant’s offense standard. the evidence ponderance Voss, have been the Guidelines Since Koonce, F.2d 352- States United clearly ap- 2D1.11 now amended and section Cir.1989) (affirming D-methamphet- plies violations of section U.S.C.A. to on circumstantial based amine determination 841(d). (Unlawfully § § 2D1.11 See U.S.S.G. prior of defendant’s evidence Distributing, Importing, Exporting or Pos- shipment). Chemical; Attempt or Con- sessing a Listed 2Dl.ll’s Cross B. Section concern spiracy). sympathize with the to 2D1.1 Reference majority expressed,18 but we cannot the Voss raises the next Guide Bogusz alone text of the amended reconcile it with the argues that the district court He issue. lines O’Leary, See United States Guidelines. § 2D11 under applying U.S.S.G. erred (5th Cir.1994). 153, 154 Section to it. He cross-reference 2Dl.ll’s section 2Dl.ll(c)(l) “If the offense involved states: apply to 2D1.1 does not that section contends unlawfully manufacturing a controlled sub- 841(d). Bogusz § 21of U.S.C.A. violations stance, attempting or to manufacture con- a precursor aof pled guilty to distribution unlawfully, § 2D1.1 trolled substance it would be used knowing that chemical (Unlawful Manufacturing, Importing, Ex- but was substance manufacture a controlled Trafficking) resulting if offense porting, unlawfully conspiracy to manu sentenced greater than that determined above.” level is sub quantity of the controlled facture the 2D1.11(c)(1). § ex- The Guidelines U.S.S.G. precursor produced from stance that was 2Dl.ll(c)(l) applies when plain that section delivered. chemicals he defendant, person a for whose con- “the States v. primarily relies defendant is accountable duct (10th Cir.1992), Voss, a case F.2d 1007 (Relevant Conduct), completed 1B1.3 before the Guidelines effect decided under to constitute the offense actions sufficient In adopting 2D1.11. section the amendment manufacturing unlawfully a controlled sub- Ebel, Voss, by Judge strong dissent over a con- attempting to manufacture stance or inapplicable § 2D1.1 held U.S.S.G. the court unlawfully.” Id. trolled substance 841(d). of U.S.C.A. violations comment.(n. 2). The relevant conduct re- appli- majority reasoned that its 1012. The 1B1.3 includes “all acts ferred to section that almost all violators “would insure cation abetted, counselled, committed, aided, ... 841(d) would be sentenced of section induced, commanded, willfully procured, or turn- year imprisonment, thus ten maximum defendant; the case of caused mandatory statutory into a ing a maximum activity ... jointly criminal all undertaken (citations omitted). Id. at 1010 sentence.” reasonably omissions of foreseeable acts and interpret majority the Guide- refused jointly undertak- this others in furtherance of the that would achieve lines in a manner Guidelines, Sciarrino, (3d Cir.), drug actual manufacturers. The Voss, 493 (1989), since cross reference to section amended production of evi facilitate the only should when the "offense involved unlawful- 2D1.1 Moreover, opinion. expert in the form manufacturing attempting dence ly to manufacture a quantitative analysis precise we do not think controlled substance....” required, rea product be some should 841(d) 2D1.11(c)(1). can be violated Section of each of the relative amounts sonable estimate requirement. meeting There- conduct isomer, production perhaps from the inferred fore, Sentencing we do not believe that the Com- generally in labora obtained method and results tory penal- irrationally by equating acted mission using production experiments normal meth fact, theory In behind ties for these offenses. ods. penalties some belief in all inchoate is based on equivalent culpability. expressed majority concern Voss also 841(d) treating violators the same as over section

93 lB1.3(a)(l)(A activity.” § became, en criminal & Guidelines 1, effective November B). Therefore, if the 1990 Guidelines would sentence, have resulted in a lower showing contrary Unless there is a in- Ex Post Facto require Clause would ap tent, unambiguous we must “follow the clear plication. See United States v. Spiropoulos, language of the Guidelines.” United States 155, (3d Cir.1992) (“district 976 F.2d 160 n. 3 (3d Cir.1993). Wong, 667, v. 3 F.3d 670 required courts are apply Therefore, time-of- they we the Guidelines as offense [G]uidelines rather than written, the time-of- they were not as think we should sentence [G]uidelines when ... the time-of- have been written. Id. The district court offense [GJuidelines are had it more favorable before sufficient evidence to determine defendant”). Thus, if Bogusz’s require- interpre conduct satisfied the Foss 2Dl.ll(c)(l). tation of correct, § ments of the earlier U.S.S.G. Accord- were ingly, Bogusz hold that we the district court did not could have received a less severe err its reliance on section 2D1.1 pre-1991 cross- sentence under the revision of the Voss, reference from section 2D1.11. (dis Guidelines. See 956 F.2d at 1013 trict court should sentencing base on the However, the use of section 2D1.11 re 3553(b) purposes (1988) § 18 U.S.C.A. quires us to consider a constitutional issue. regard without sentencing Guidelines’ majority’s If the interpretation Voss table). pre-1991 correct, Bogusz’s Guidelines was sentence would conflict with the Ex Post The Ex requires Post Facto Clause us to Const, I, 9, Facto Clause. art. U.S. cl. 3. interpret pre-1991 Guidelines and meet prohibition against passage of ex Foss, posed by one this Court includes, alia, post facto “[ejvery laws inter previously has not pre- decided under the changes punishment law that and inflicts 1991 thorough Guidelines. After consider- greater punishment than it was when com ation, we agreement find ourselves in with Bull, mitted.” Calder 3 Dall. 1 rejected those courts that have the view of (1798). Florida, L.Ed. 648 In Miller v. majority.19 the Foss Following Judge Ebel’s 423, 2446, 107 S.Ct. 96 L.Ed.2d 351 dissent, reasoning that, we hold under the Court, Supreme striking down pre-1991 Guidelines, violators of 21 U.S.C.A. sentencing guideline, use of state held 841(d) properly could be sentenced under application provision that an of a sentencing Accordingly, 2D1.1. we conclude occurring to conduct passage before its application of the 1991 Guidelines did promulgation violates the Ex Post Facto disadvantage Bogusz and thus no consti- Clause whenever retrospective, “the law [is] infirmity tutional exists under Ex Post is, it ... applies] occurring to events Facto Clause. enactment, before its and ... ... it disad vantage^] the offender affected it.” Id. Bogusz’s Bargain C. Plea 430, (internal at quotations S.Ct. omitted).

and citations Finally, Bogusz argues gov that the Bogusz was sentenced plea the 1991 ernment violated the terms of his bar gain by Guidelines for conduct that arguing occurred from for affirmance of the district early April early May 1990. The 1991 court’s sentence in appeal.20 this Leed, 202, (11th Cir.1992), denied, - U.S. -, 19. See United States v. cert. (5th Cir.), denied, cert. -U.S. 113 S.Ct. 123 L.Ed.2d 653 (1993); United States v. Cook, (9th Cir.1991); 938 F.2d 149 government argues Bogusz 20. The raised Kingston, Cir.1990), 922 F.2d 1234 reply this issue for the first time in his brief. In response, filed a motion to strike (1991); L.Ed.2d 460 see also United States v. or, alternative, argument in the for leave to Perrone, (2d Cir.1991) 1416-17 surreply file a brief. We denied these motions. (allowing application of U.S.S.G. 2D1.1 for 21 usually questions We do not consider first raised U.S.C.A. violations when the defendant however, Here, in this manner. the issue reasonably knew could turing quantity foresee the manufac apparent only govern- raises became after the based). on which Accordingly, Bogusz filed ment its brief. had no Hyde, But see United States v. the Bogusz claims that Appellee at 41-49. agreement between bargain plea In the argument stip- presentation of parties government’s the government, the Bogusz and agreement. 24 plea level would be the offense violates base that the ulated 2Dl.ll(d)(3). proba- explicitly did not Bogusz’s plea agreement PSR, considered office, Bogusz’s tion conduct of either post-conviction address the 2Dl.ll(d)(3) of section application rejected Gonzalez, See, v. e.g., United States party. application of sec- recommended instead Cir.1992) (9th (plea agreement F.2d 1037 981 cross-reference, which, 2Dl.ll(e)(l) by tion be-, clause). Nevertheless, no-appeal with a 2D1.1. of section application the requires resort to government cannot cause “the accept the to decision court’s The district construction of approach in the rigidly literal Bogusz’s base raised PSR recommendation express language,” we are not limited appeal not Bogusz does to 34. level offense Badaracco, agreement. 954 language of the stipu- to honor the refusal court’s the district Crusco, v. (quoting United States F.2d 939 Torres, v. lation, United States however. Cir.1976)). (3d Rather, “[i]n F.2d 21 536 Cir.1991) (3d (allowing the sen- F.2d 321 926 plea of a determining the terms whether outside consider evidence tencing judge to violated, the court agreement have been requiring opportunity an stipulation but the government’s the must determine whether withdrawal); Wag- v. United States plea was reason inconsistent with what conduct is Cir.1993) (“It (10th 1467, ner, 1475 F.2d 994 when en ably the defendant understood agreement plea of a the terms settled is well guilty.” (quoting Unit tering plea of Id. the court.”). sentencing binding the on are not Nelson, 1519, 1521-22 ed States v. York, 257, 404 U.S. v. New In Santobello (11th Cir.), nom. Waldhart cert. denied sub 427 L.Ed.2d 92 S.Ct. States, v. United plea bargains are held Supreme Court (1988)). L.Ed.2d 58 and, contracts there- by the law of governed Bogusz’s position person A reasonable strictly then- fore, adhere to must parties’ in- may stipulation to have understood Badaracco, 954 v. promises. States United argue against the agreement an not to clude (3d Cir.1992); F.2d Foti, appeal. Moore v. stipulation on (3d Cir.1991). Cf. 230, 233 Hayes, F.2d Cir.1977) (defendants “suc- F.2d analysis three-step to review use a Courts plea bargained sen- challenge to his cessful first, they determine the plea bargains: bargain”). repudiation of the tence is a tacit alleged to and the conduct agreement’s terms however, appeal Bogusz, the district did second, it; they if the con- determine violate stipulation. follow the court’s refusal to third, plea agreement; and duct violated violated, they deter- plea agreement if the Moreover, government does not direct- remedy. Hayes, 946 F.2d at 233 mine the instead, it ly argue against stipulation; Moscahlaidis, 868 (quoting States court’s defini- that the district contends (3d Cir.1989)). Here, is correct. tion of bargain are clear. There- plea terms of the separate and distinct from This issue is step. fore, Determin- on the second we focus Similarly, Bogusz has not stipulation. violat- government’s conduct whether by arguing di- plea agreement breached his of law agreement plea ed the rectly interpretation of metham- for his own plenary review. we have over which to an unre- stipulated he had after provision. Our adversarial plea attached to the bar- lated Guidelines’ stipulations justice heavily pre- on the government system of relies Bogusz and the gain between opposing parties, both sentation of views applicable federal state that “the 2D1.11(3) Thus, at trial. we are carrying appeal a base as well as guideline is section right deny any party the government argues reluctant of 24.” The offense level interpretation of law. Under correct in sentenc- advance its court was the district (ac- us, we hold that circumstances before ing Bogusz based on tual) not violate the letter or Brief did methamphetamine. opposed reply opportunity he filed his brief. to raise it before

spirit plea agreement by arguments I disagree with this conclusion. Precursor on this appeal. chemicals used in the manufacture of meth-

amphetamine cost money may be diffi- cult to Consequently, obtain. it is counterin- IV. Conclusion tuitive to every conclude that rational “cook” above, For reasons discussed the sen- would not highest seek the possible yield of imposed tences on Bogusz and O’Rourke will methamphetamine hydrochloride from those be vacated and their cases remanded for chemicals. The mere fact that the cook bun- resentencing in a manner consistent with this gles recipe the produces and a sticky, cara- opinion. In all respects, other the orders of mel-like purity, substance of low which no the district court are affirmed. user purchase, wishes to should not diminish

punishment “good” vis-a-vis the cook whose product pure is more NYGAARD, highly and Judge, Circuit concurring salable. dissenting. Moreover, majority’s the holding also places an unwarranted upon gov- burden the join I parts all majority’s opinion the ernment to obtain an enhanced sentence 111(A)(1). except part Because I believe based the amount of methamphetamine majority the adopted has wrong test for (actual). rule, Under majority’s gov- determining the purity methamphetamine, ernment must every now sample have respectfully I dissent portion from that of its methamphetamine analyzed purity and its opinion. determined; the mere fact that drug majority As the recognizes, the Sentencing longer First, uncut is no sufficient. we must provide ways two for sentencing a recognize that criminal oper- defendants who defendant unlawfully convicted of manufac- ate “meth in garages, and, cooks” barns as turing methamphetamine. Under U.S.S.G. here, basements, are not scientists who sit * 2Dl.l(c) cmt. the court first looks around discussing the molecular structure of weight “the any entire mixture or sub- their creations. awas mechanic who containing stance a detectable amount of the got phenylacetie acid for the “cook” and Next, controlled substance.” the court is O’Rourke awas truck driver who cleaned out instructed to weight determine the the drains Second, at the “cook.” “meth” is pure form of the controlled substance con- produced laboratory conditions mixture, tained within the otherwise known and is pure. Third, never almost in cases (actual).” “methamphetamine These one, like this where specific batch weights are then translated into offense lev- drugs at tested, issue is never recovered and els Drug Quantity Table, use the defendant will avoid an enhanced sen- higher of the two offense levels is used in altogether, tence even it undisputed when determining appropriate sentence. drugs were uncut. The issue here is much methamphet- how I simply would problems avoid these alto (actual) was contained in the gether (ac substance and hold that methamphetamine tual) manufactured Appellants defendants. refers to the output uncut of the manu (actual) contend that methamphetamine facturing process, regardless of its purity. means pure amount Macklin, See United States v. amine, — impurities, (2d of all free gov- Cir.), while argues ernment any uncut substance L.Ed.2d I containing methamphetamine is metham- respectfully therefore dissent. phetamine (actual), regardless purity. of its majority, acknowledging while that both views supported caselaw, are in the concludes

that “methamphetamine refers to the

net of methamphetamine amount hydrochlo- produced

ride gross not the amount

uncut methamphetamine.” Majority at 87.

Case Details

Case Name: United States v. Donald Bogusz, A/K/A Bogey, United States of America v. John O'rourke, A/K/A Hap

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 28, 1994

Citation: 43 F.3d 82

Docket Number: 92-5575, 92-5595

Court Abbreviation: 3rd Cir.