UNITED STATES of America, Plaintiff-Appellee, v. Robert A. TATE, Defendant-Appellant.
No. 15-3227.
United States Court of Appeals, Seventh Circuit.
Decided May 18, 2016.
Argued Feb. 23, 2016.
Neal A. Connors, Attorney, Neal Connors Law Firm, P.C., Belleville, IL, for Defendant-Appellant.
Robert A. Tate, Oklahoma City, OK, pro se.
Before WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
In this appeal, we address two sentencing issues. First, defendant Robert A. Tate challenges the district court‘s findings on the extent of his relevant conduct. Those findings were based on credibility determinations to which we give great deference, and we find no error. Second, we must also decide whether a conviction under an Illinois law that prohibits attempted procurement of anhydrous ammonia with intent that it be used to manufacture methamphetamine qualifies as a “controlled substance offense” under the Sentencing Guidelines’ career offender provision,
I. Relevant Conduct
A jury found appellant Tate guilty of conspiring to manufacture methamphetamine between February 2013 and June 2014 and guilty on a single count of distribution in March 2014 stemming from a controlled buy. Tate does not challenge his convictions on appeal.
In applying the U.S. Sentencing Guidelines, a district court must determine the defendant‘s criminal history and offense level. Tate‘s criminal history category was VI, regardless of any issue under the career offender Guideline. The district court
The Sentencing Guidelines instruct district courts to base the offense level on the defendant‘s “relevant conduct,” a calculation governed by
Tate‘s conviction for distribution of methamphetamine involved just 0.2 grams of methamphetamine, but at sentencing the district court held him responsible for an estimated 400 grams of methamphetamine. That quantity was based not on the single controlled buy but on the trial testimony of Tate‘s former girlfriend, Brandy Pierce, and a proffer statement by Denise Huston. Pierce testified that she had supplied Tate with precursor materials and allowed him to cook methamphetamine daily at her home over a period of several months. Huston reported that Tate had manufactured methamphetamine at her home at least twenty times during the preceding year.
At sentencing, Tate argued that Pierce and Huston were not sufficiently credible to support the 400-gram figure. Judge Gilbert rejected that argument. He acknowledged that the estimates were not exact but explained that in his experience, witnesses like Pierce and Huston could credibly testify as to whether someone was cooking methamphetamine “every day or every other day” and could reasonably estimate the drug quantities involved.
We review a district court‘s factual findings on drug quantity only for clear error, United States v. Austin, 806 F.3d 425, 430 (7th Cir.2015), citing United States v. Clark, 538 F.3d 803, 812 (7th Cir.2008), and we give substantial deference to the sentencing court‘s determinations of witness credibility. United States v. Blalock, 321 F.3d 686, 690 (7th Cir. 2003); United States v. Johnson, 227 F.3d 807, 813 (7th Cir.2000). “Determining how much of a particular drug a defendant possessed, over a lengthy period of time, is not an exact science.” United States v. Sewell, 780 F.3d 839, 849 (7th Cir.2015). As we have often explained, drug traffickers rarely keep reliable business records, and district courts determining relevant conduct may make reasonable estimates. See Austin, 806 F.3d at 431; Sewell, 780 F.3d at 849.
Pierce testified that Tate cooked methamphetamine at least once a day from January 2013 until October 2013, producing at least two grams with each “cook.” The court‘s estimate of 360 grams was at the low end of the range her testimony could support. Tate argues primarily that Pierce could not be believed because of her prior convictions and her repeated attempts to minimize her own role in the conspiracy. Those circumstances are not unusual with witnesses who have been involved in drug-trafficking operations. They did not preclude the district court from finding that Pierce‘s testimony was reliable enough to support the estimate in the presentence report. See United States v. Rodgers, 245 F.3d 961, 968 (7th Cir.2001) (The “district judge was free to credit Dexter. That Dexter was a convict-
As for Denise Huston, Tate first argues that her proffer statement is inconsistent with her trial testimony. The second revised presentence report said that Huston saw Tate make methamphetamine at her house at least twenty times over the preceding year. At trial, however, Huston testified that Tate made methamphetamine at her house “[a]t least ten different times.” The discrepancy, Tate argues, shows that Huston‘s recollections are vague and incredible. We disagree.
Discrepancies or inconsistent prior statements are of course relevant in assessing witness credibility, but they “do not, as a matter of law, render a witness‘s testimony incredible.” United States v. Hernandez, 544 F.3d 743, 747 (7th Cir. 2008). Although Huston‘s story was not exact, determining drug quantities for sentencing purposes “is often difficult, and district courts may make reasonable though imprecise estimates based on information that has indicia of reliability.” United States v. Bozovich, 782 F.3d 814, 818 (7th Cir.2015). The district court found Huston and her estimates credible. In using the forty-gram figure, the court erred if at all on the low side. (Huston testified that Tate might use up to five boxes of pseudoephedrine pills per cook, which could yield ten grams per cook, or 100 to 200 grams total.) See United States v. Acosta, 534 F.3d 574, 584 (7th Cir.2008) (finding no clear error in use of method to estimate drug quantity that erred on the low side). We see no clear error in this finding.
Tate also argues there was no nexus between the methamphetamine he made at Huston‘s residence and the conspiracy to manufacture of which he was convicted. We disagree. The methamphetamine he manufactured in those cooks is of course “directly attributable to him.” Acosta, 534 F.3d at 585, quoting United States v. McLee, 436 F.3d 751, 765 (7th Cir.2006); see
II. Career Offender Enhancement
Under the U.S. Sentencing Guidelines, an adult defendant is a career of-
Tate‘s argument presents a question of law that we review de novo. United States v. Dyer, 464 F.3d 741, 743 (7th Cir.2006), citing United States v. Hankton, 432 F.3d 779, 795 (7th Cir.2005). Under the career offender provisions, a “controlled substance offense” is defined as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
The Illinois law under which Tate was convicted provides in relevant part:
It is unlawful to knowingly engage in the possession, procurement, transportation, storage, or delivery of anhydrous ammonia or to attempt to engage in any of these activities or to assist another in engaging in any of these activities with the intent that the anhydrous ammonia be used to manufacture methamphetamine.
Tate‘s conviction for attempted possession of anhydrous ammonia with intent to manufacture methamphetamine did not involve the actual “possession of a controlled substance,” so the latter portion of
So far, then, the anhydrous ammonia conviction does not satisfy the guideline definition of a controlled substance offense. But
In United States v. Dyer, we considered the effect of that note on the definition of “controlled substance offense.” Dyer argued that his conviction for possession of pseudoephedrine with intent to manufac-
If anhydrous ammonia were a listed chemical as well, this would be a simple case controlled by Dyer, and Tate‘s argument would fail. However, “listed chemical” has a particular meaning within Title 21, Chapter 13, Subchapter I of the United States Code. It includes “any list I chemical or any list II chemical.”
The government argues that Tate‘s anhydrous ammonia conviction is so similar to offenses that do qualify as “controlled substance offenses” that it makes little sense as a matter of logic or policy to exclude it. For example, the application notes specify that unlawfully “possessing a prohibited flask or equipment with intent to manufacture a controlled substance (
The government‘s policy argument has considerable force. Anhydrous ammonia, which is used as an agricultural fertilizer, is also a key ingredient in one common method for producing methamphetamine, and the Illinois statute of Tate‘s conviction required intent to use the anhydrous ammonia to produce methamphetamine. Yet in parsing the applicable law, we cannot ignore the fact that the provisions are quite specific but do not
The government‘s policy arguments make intuitive sense, of course. Amendment 568 to the Guidelines resolved a circuit split as to whether convictions for possessing a listed chemical, a prohibited flask, or equipment with intent to manufacture a controlled substance qualified as controlled offenses. The Sentencing Commission said yes based on the “close connection” between possession of those items with intent to manufacture and actual manufacture of controlled substances. See U.S.S.G. app. C, amend. 568. It is not readily apparent why the Commission chose to distinguish between “listed chemicals” like pseudoephedrine and unlisted chemicals like anhydrous ammonia, both of which have legitimate uses but also are used to manufacture methamphetamine.
Whatever its reasons, the Commission provided quite specifically that possessing “a listed chemical” and “a prohibited flask or equipment” with intent to manufacture a controlled substance qualified as controlled substance offenses. If the Commission had intended to go further, to include unlisted chemicals as well, it could have used language to that effect or it could have said that the specific offenses listed in the application notes were meant to be only examples. See Walterman, 343 F.3d at 941. It took neither step. The government‘s policy argument alone does not justify broadening the sweep of the career offender enhancement beyond the plain text.
Accordingly, the district court erred in concluding that Tate should be sentenced as a career offender. The effect on Tate‘s guideline range was substantial, raising it from 140-175 months to 210-262 months, with a final sentence of 210 months.
An error in calculating the Guideline range can still be harmless where the district judge makes clear that the sentence would have been the same absent the error. United States v. Hill, 645 F.3d 900, 912 (7th Cir.2011); see also United States v. Rabiu, 721 F.3d 467, 470-71 (7th Cir.2013); United States v. Abbas, 560 F.3d 660, 667 (7th Cir.2009); United States v. Anderson, 517 F.3d 953, 965 (7th Cir.2008). It has long been recognized that the Sentencing Guideline provisions for criminal history have a number of rather wooden features that can produce arbitrary results. See
The issue about how to characterize Tate‘s anhydrous ammonia conviction thus provides another good opportunity to remind district judges: A judge facing a close but technical issue under the Guidelines should ask why the answer should
Here, the district judge did not clearly indicate that he would have imposed the same sentence absent the career offender enhancement. Accordingly, we VACATE Tate‘s sentence and REMAND for resentencing consistent with this opinion.