*2 COX, Before WILSON and Circuit Judges, RYSKAMP*, and District Judge. RYSKAMP, District Judge: In these consolidated appeals, Appel- lants, (“Petrillo”) Alexander Petrillo Richard L. Blaylock (“Blaylock”), appeal criminal sentences on imposed them the United States District Court for Northern District of Alabama. Appellants pled guilty pseu- acetone, doephedrine, ethyl ether with the intent to manufacture methamphet- amine, 841(d)(1). violation of 21 U.S.C. The district court sentenced Petrillo to 78 imprisonment $4,000 months of and a fine and Blaylock to 60 imprison- months of $4,000 ment and a fine. For the reasons herein, stated we affirm.
I. BACKGROUND Because appeal focuses on the dis- trict sentencing court’s of Appellants, only a summary of the facts material required. issues is In Febru- 1999, ary County Drug Madison Task Alabama, Huntington, Force of received a tip that drugs being were sold from a location occupied by Appellants. Based J. Brice Callaway (Appointed by tip District and a pur- controlled cocaine Court), Callaway Huntsville, Bradley, location, chase at that a search warrant AL, Blaylock. was executed on March * Ryskamp, Honorable Kenneth L. sitting by designation. U.S. District Florida, Judge for the Southern District of 16, 1999, and On December indictment. time of present
lants were contraband, district court held February other Among search. outbuilding sentencing Appellants. on the hearings uncovered search agents’ a clan- operating called government sentencing, the At *3 laboratory. destine amount of meth- testify to the to as Trevor nu- agents recovered laboratory this From pro- have could Appellants amphetamine commonly and chemicals items merous Dr. Trevor clandestine lab. at their duced methamphet- of production in the used and precursor chemicals that the testified batteries, filters, amine, including lithium found at manufacturing items other salt, acetone, ether, sulfu- ethyl glassware, the Birch consistent with lants’ were lab acid, Sep- acid, and scales. On nitric ric manufacturing meth- method of Reduction charged 16, 1999, Appellants tember Dr. amphetamine. Trevor indictment with superseding two count in a method of Reduction the Birch intent to with the conspiracy to possess in of 95%. yields excess reported has (Count I), distribute that, theo- assuming a 100% Trevor stated chemicals with of and could lab yield, Appellants’ retical methamphet- manufacture intent to methamphet- of up grams to 25.6 produced II). (Count condi- that as Dr. Trevor admitted amine. Drug En- agents submitted The day, a metham- change day to tions forensic labora- Administration forcement produce the same lab will not phetamine at the items found of tory photographs that such varia- agreed and yield, actual three laboratory, along with Appellants’ percent “from one vary greatly tions could agents at the scene. found chemicals (Sent. Tr. Ill Vol. percent.” to 100 up 1) liquid a jar containing submitted could esti- whether she asked When (exhib- separated1 that had substance solid Appellants’ of lab mate the 2) 7); pseudoephedrine it 21.9 and evidence upon the information 3) (exhibit 8); and two boxes form powder her, stated: “I can Dr. Trevor available (exhibit 9). tablets blue containing sixty percent theoreti- only report what the 100 7 that exhibit determined The DEA lab at 27. The dis- be.” Id. cal methamphetamine, of grams 1.6 contained Dr. Trevor further on pressed trict court grams pure 13.8 that exhibit 8 contained asking her wheth- of actual the issue 9 con- exhibit pseudoephedrine, “with a any opinion had reasonable er she grams pure pseudoephedrine. 14 tained Trevor2, chemist, L. ... certainty DEA Dr. Jennifer degree that, theoret- assuming 100% produced determined amounts could have these yield, Appellants ical laboratory equipment [she] the use d-methamphetamine. grams to 25.6 up “No, saw,” responded Dr. Trevor to which court then The district sir.” Id. at 48-49. 8, 14, 1999, and November October On estimate of narrow Dr. Trevor’s tried to 1999, Blaylock, respectively, Petrillo and estimate, best yield, asking “Your superceding II of the pled guilty to Count drug quantity could be calculated erroneously liq- poured Agents off 1. The the Guidelines. submitting under portion exhibit before uid of this argue analysis. Appellants DEA for agents' affected the calculation 2. at the time Dr. Trevor turn, and, DEA Forensic Labo- respective employed with the their been ratory years and had evaluated "hun- or for two Court finds no evidence sentences. The used in precursor chemicals support argument, for de- authority dreds” methamphetamine. precursors remained manufacture spite other such error
1301 then, is the percent figure?,” but the II. STANDARD OF REVIEW government’s expert disagreed, responding Guidelines, Under the this Court I nay only “No. said estimation would be reviews district court’s findings of drug the 100 yield.” Id. at quantity for the purpose limited of deter did not challenge at sen- mining whether they are clearly erroneous. tencing Dr. Trevor’s calculation of the the- Newsome, 1571, oretical maximum yield. Cir.1998), denied, cert. 510 U.S. Appellants offered testimony 1062, 734, 114 S.Ct. 126 L.Ed.2d Loo, of Dr. Boon Associate Professor of denied, cert. 510 U.S. S.Ct. Chemistry at the University Alabama at (1994); L.Ed.2d 700 United States v. Loo, Huntsville. Dr. who is not a forensic Davis, *4 (11th 902 F.2d Cir.1990). chemist, testified that he agreed with Dr. clearly erroneous standard also ap Trevor’s of analysis precursor chemi- plies to this Court’s review of a district cals as well as her estimate of grams 25.6 court’s estimate production capabili of methamphetamine assuming a 100% ty of a drug manufacturing operation. yield. theoretical Dr. Loo also admitted Newsome, 998 F.2d at However, 1577. we that he could not state with reasonable review de novo a district legal court’s in scientific certainty what the lab’s actual terpretation of the Guidelines. United yield would be. The district court asked Perez, Dr. Loo he “any whether opinion ... Cir.1993). reasonable degree of certainty education, based on [his] training and ex- III. DISCUSSION perience as to the likely yield” based upon Appellants contend that the district equipment and chemicals being used at court 1) committed clear error by using a Appellants’ methamphetamine lab, 100% theoretical to estimate Ap- which Dr. “No, responded, Loo I cannot pellants’s lab produced tell 25.6 how get much [sic] from that.” (Sent. methamphetamine, 2) 41). Tr. shift- Vol. IV at Neither Petrillo ing the burden of Blaylock nor testified at defendants to sentencing, nor produce did either evidence of any proper offer further evidence estimate of drug. rebut the manufacturing capability estimation of them under the likely yield. lab’s Guidelines. The Court finds no merit in Appellants’ arguments, but will discuss The district court accepted Dr. Trevor’s each in turn. and Dr. Loo’s agreed-upon estimate that
Appellants’ lab could 25.6 A. The District Court’s Ap- Estimate of grams of methamphetamine upon pellants’ Lab’s Production Capability 100% theoretical applied the cor- Appellants do responding dispute Base Offense the fact of Level 26 under they the United were operating States Sentencing Guidelines (“the Guidelines”). laboratory in question, court district not- nor do they dispute ed that Appellants quantity failed to present any chemicals they evidence to esti- accused possessing. Appellants’ upon mate based a 100% theoretical yield.3 sole argument here the district It noting is worth that the district court capacity felt you before would even move outside comfortable its drug quantity estimate (Sent. offense base level of 26.” Tr. Vol. IV part because "the actual yield of this labo- ratory drop have to below a 40 (11th Cir.1995), only 825, 831 its F.3d by basing clear court committed court concern- district before the insufficient upon estimate the defendants’ essence, object ing In the testi- was capabilities Dr. Trevor’s lab’s adoption of court’s chemist, who forensic estimates, a DEA mony of which Dr. Loo’s a 100% yield upon yield. estimated theoretical based his a 100% were based appeal- The defendants yield. theoretical Guidelines, “there where Under upon this reliance court’s ed the district seized the amount or no seizure estimate, held that but this Court offense, the scale of not reflect does of evidence of the lack light “[i]n approximate the court shall say that the district contrary, we cannot 2D1.1, § USSG substance.” the controlled gov- adopting clearly [the erred comment, an esti (n.12). such making It is thus Id. estimate].” ernment’s may consider sentencing court mate, the may a district court rule in circuit that any capability or size “the as evidence methamphet- estimate base its Id.; also USSG see involved.” laboratory expert’s calculation yield upon (in 6A1.3(a) resolving disputed sentenc where yield, at least the 100% may factors, consider ing *5 by the presented de- no evidence there is relia indicia of with sufficient information an estimate. to rebut such fendants accuracy). probable support its bility to laborato methamphetamine In the case of Appellants, the dis that the district ries, held this Court has sufficient presented with trict court was capability by the lab’s may po court estimate to the estimate upon methamphetamine potential calculating the methamphet yield Appellants’ tential chemi precursor seized upon First, based ex the amine lab. Carroll, See, States v. 6 e.g., Trevor, United cals. Dr. forensic chemist pert, DEA denied, (11th Cir.1993), cert. 510 equipment F.3d 735 upon that based the L.Ed.2d 577 127 lab, 114 S.Ct. U.S. at the and the precursors found (1994). methamphet estimates by Such employed Ap method manufacture be may was that a estimate her best pellants, Unit available. most abundant pro 100% theoretical (11th Smith, 240 F.3d ed methamphet States grams of up to 25.6 duced Cir.2001). Furthermore, own ex Appellants’ amine. Loo, Trevor’s Dr. corroborated pert, estimating potential When failed to Appellants thereafter estimate. upon pre yield based testimony by, uncontroverted rebut chemicals, court must district cursor that their presenting evidence example, “reasonably make estimation an as inexperience own conservative, accurate, and not fair, day pro on producers, weather v. Za United States merely speculative.” equipment duction, proper or their lack Cir.1998). 1355, 1359 pata, would have by here question presented The experts. that estimated less than may base its the district whether it the thus had before a metham drug quantity in estimation testimony two chem- unrebutted ap solely upon laboratory case phetamine ists, estimated of whom yield to the a 100% theoretical plication of produced up to 25.6 lants’ lab previ has This Court precursor. relevant Pursuant methamphetamine. to in the affir ously question answered Ramsdale, the in dis- decision this Court’s mative. In United trict court then properly used this evi- calculation, but that there was no further dence to itself estimate the drug quantity evidence concerning, alia, inter “the pres- necessary for application of the Guidelines. ence or absence of specialized equipment, Because the district court’s estimate chemist, was skill of the temperature and based upon the record, humidity of the atmosphere on the date Appellants failed to evidence, and at the place chemical reactions were this Court cannot attempted.” find that the district Id. The court noted, then court’s factual findings quoted in respect passage objected to to by Ap- pellants, clearly that Appellants erroneous. to failed present evidence of the above-listed fac- B. The District Court’s Alleged Shifting tors, and most importantly went on to the Burden state that such of Proof evidence rested solely with Appellants. The district court went on: Appellants argue “The government has no knowledge of court erroneously shifted the burden of such beyond matters what it has presented proof respect drug quantity, alleg to this court. Such variable —factual vari- edly requiring Appellants prove ap lay ables to the—within the competence propriate estimate under the Guidelines. and knowledge of the defendants.” Id. argument This has no merit. 51-52. burden of rests with the It is thus clear from the context of the government prove drug quantity by a district court’s statement that it was preponderance of See, the evidence. e.g., fact shifting burden of v. Bogusz, States 87-88 proving drug quantity Appellants, but (3rd Cir.1994). However, this Court has *6 was rather stating that Appellants had consistently held that where govern the failed to fulfill their burden of coming for- ment’s estimation of drug quantity is not ward with rebuttal evidence concerning by defendant, rebutted the the circumstances of the operation and not does commit clear by error bas skill relative of its operators evi- —such ing its own estimation of drug quantity being dence only in the Ap- solely upon the evidence introduced the pellants. Thus although the district court government. Ramsdale, See 61 F.3d at mistakenly used the term “burden of 831; Newsome, 998 F.2d 1577-78. proof,” it was in any real sense apply- Appellants object to the statement by ing any such thing to Appellants. This the district court that “what lacking is in Court is thus confident that the burden of the record before this court is proof evi- respect to drug quantity atwas dence, evidence, factual as to those all factual times correctly placed upon govern- matters which this court views aas burden ment in this case. imposed upon defendants and not IV. CONCLUSION government.” (Sent. Tr. Vol. IV at context, When read in its however, For the herein, reasons stated the sen-
the district court was clearly stating imposed that tences by the district court upon the defendants had not met their burden Petrillo Blaylock under of coming forward with evidence to Count II of the superseding indictment are evidence drug quanti- AFFIRMED. ty. Leading up statement, to this COX, Circuit Judge, dissenting: recognized govern- ment had presented good “a bit of testimo- I I disagree dissent. with the majori- ny” concerning the proper drug ty’s quantity application of United v. States Rams- to one percent one Cir.1998) anywhere been
dale, F.3d yield.2 the theoretical percent hundred held that Ramsdale this case. facts of to cast Thus, evidence existed ample that esti- to conclude not clear is figure, yield the theoretical doubt a hun- on one yield based mates of actual this case. Be- does not decide Ramsdale satisfy the yield dred who testified the chemists both of cause establishing drug burden as to the opinion express refused when no oth- by preponderance quantity rejected the use of and both yield, actual yield pre- relating to actual er evidence for estimat- a basis yield as the theoretical at 831. The sented. conclude that I cannot ing the actual simply that some Ramsdale logic of its burden of has met the Government more a fact is can establish by preponderance proving is no evi- not when there than likely true contrary.1 dence to case, expert, the Government’s In this Enforcement Ad- Drug
chemist Laboratory, testi- Forensic
ministration’s calculation the theoretical fied that America, STATES of UNITED many for the account cannot does not and Plaintiff-Appellee, yield. She actual determine factors was no feasible there also calculating BEJARANO,
methodology Gonzalez Efren Defendant-Appellant. laboratory pos- from the that make sessed, factors No. 97-5580 yield, in- than theoretical less Non-Argument Calendar. operator competency cluding the Appeals, United States Court reagents, could purity and the Eleventh Circuit. The defense yield here. affected actual *7 3,May Fur- in this assessment. expert concurred from the ther, question to a response chem- judge, the Government’s yield could have the actual
ist testified knowledge of the course, defen- peculiarly within evi- questionable or inconclusive 1. Of dants, yield is pre- standing not meet evidence alone does once dence See McCormick’s ponderance presented standard. the burden defendant shifts Hand- (Edward W. regarding present rebuttal Evidence Law of book eds., For 3d ed. this Cleary et al. other case law yield. Neither Ramsdale nor reason, event, supports contention. Cir.1995) did decide will always defendants be the case that is not persuasion its burden of government carries proof is possession of the relevant in sole merely the defen- because toas apparent the facts forensic here. with rebuttal not come forward dant does by the Government testi- presented chemist government’s own uncontra- agents discarded fied that DEA satisfy prepon- must itself dicted evidence sentencing court provided the derance standard. least for yield figure, at with an actual particular batch. that because contends 2. The Government capacity the lab relating to the facts