UNITED STATES of America, Plaintiff-Appellant, v. Russell Kevin VOSS, Defendant-Appellee.
No. 90-5140.
United States Court of Appeals, Tenth Circuit.
Feb. 13, 1992.
956 F.2d 1007
Further, to the extent the obligation of applying state law does not spring from the statute as a matter of federal law but instead recognizes the operation of state law ex proprio vigore, see Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 157-65, 107 S.Ct. 2759, 2767-72, 97 L.Ed.2d 121 (1987) (Scalia, J., concurring) (state statutes of limitation apply of their own force, unless pre-empted by federal law), or finds its inspiration in the Rules of Decision Act,
Accordingly, for the reasons stated above, and the judgment of the district court is REVERSED.
Jill M. Wichlens, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellee.
Before SEYMOUR and EBEL, Circuit Judges, and MATSCH,* District Judge.
SEYMOUR, Circuit Judge.
Russell Kevin Voss was sentenced to sixty five months imprisonment for conspiring to possess listed chemicals with intent to manufacture methamphetamine in violation of
I.
Because the Government‘s appeal is limited to Mr. Voss‘s sentencing, we only briefly set forth the facts leading to his conviction. On June 30, 1989, Mr. Voss and Harmon Heath were arrested in Tulsa, Oklahoma, shortly after purchasing 110 pounds of ephedrine, 20 gallons of hydriodic acid, and approximately 20 pounds of red phosphorous from Mid-Town Scientific Chemical Company. In the cab of the truck used to transport the chemicals, the arresting DEA agents found one quarter-ounce of white powder that field-tested positive for methamphetamine. At the time of the arrest, Mr. Heath told the agents that Mr. Voss had a methamphetamine laboratory at his home in Riverside, California. A later search of the California premises described by Heath disclosed a dismantled laboratory and approximately 1.5 pounds of methamphetamine. The presentence report, prepared after Mr. Voss‘s conviction, estimated that the chemicals seized in Oklahoma could potentially produce at least 80 pounds of methamphetamine.
Mr. Voss was subsequently indicted for three violations of federal law. Count I charged him with conspiring to possess the listed chemicals ephedrine and hydriodic acid with the intent to manufacture methamphetamine; Count II charged him with possession of the two listed chemicals with intent to manufacture methamphetamine; and Count III charged him with possessing methamphetamine with the intent to distribute. On March 21, 1990, after a jury trial, Mr. Voss was acquitted of Counts II and III, but convicted of Count I.
Mr. Voss was convicted of conspiring to possess listed chemicals in violation of
The district court sentenced Mr. Voss in accordance with sentencing guideline 2D1.1.1 Rec., vol. III, at 5-6. Under that statute violated or the quantity of drugs involved, whichever is greater. Guidelines, § 2D1.1(a). Drug quantity is translated to base offense level by application of the Drug Quantity Table. Guidelines, § 2D1.1(c).
* The Honorable Richard P. Matsch, District Judge, United States District Court for the District of Colorado, sitting by designation.
The government contends on appeal that the district court erred in relying only on the drugs seized in California, without considering the quantities producible from the chemicals seized in Oklahoma. In the government‘s view, Mr. Voss should be sentenced as though he possessed 81.5 pounds, or approximately 36.96 kilograms, of methamphetamine. Under the Drug Quantity Table, this amount would result in a base offense level of 38. Applying the sentencing table, Mr. Voss‘s sentencing range would then be from 235 to 293 months. Because his sentence could not exceed the statutory maximum under section 5G1.1(a), however, Mr. Voss would be sentenced to ten years in prison.
II.
Like the district court, the government‘s brief assumes that violations of section 841(d) should be sentenced under Guidelines section 2D1.1. We hold, to the contrary, that section 2D1.1 does not properly apply to violations of that statute. While we acknowledge that the applicability of the guideline was not questioned in the district court, this failure does not license us to disregard the lower court‘s plain legal error. See United States v. Smith, 919 F.2d 123, 124 (10th Cir.1990) (application of the wrong guideline in sentencing constitutes plain error).
The statutory index appended to the sentencing guidelines simply cross-references section 841(d) and Guidelines section 2D1.1, without commentary. Guidelines, Appendix A at A.19 (Nov.1989). In this case, the probation officer who prepared the presentence report relied on this reference to recommend the sentence. Rec., vol. II, at 4. Similarly, the government‘s brief relies on this single reference. Reply Brief of Appellant at 3. The reference in the statutory index does not, however, compel application of the referenced guideline. “Rather than establishing immutably the exclusive list of available guidelines for given offenses, the Index merely points the court in the right direction.” United States v. Cambra, 933 F.2d 752, 755 (9th Cir.1991) (emphasis added). The Guidelines instruct sentencing courts to: “Determine the applicable offense guideline from Chapter Two. See
If we conclude that the suggested guideline is inappropriate to the underlying conduct, we must then search for the section most applicable to possession of listed chemicals with intent to manufacture methamphetamine. Our review of the application of a particular guideline section is de novo. See United States v. Roberts, 898 F.2d 1465, 1469 (10th Cir.1990); United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir.1990) (“legal conclusions with respect to the guidelines . . . subject to de novo review“).
A.
Various factors compel the conclusion that Appendix A‘s suggestion should not be followed in this case. First, we note that the appendix was written before the current version of section 841(d) was enacted3 as part of the Anti-Drug Abuse Amendments Act of 1988, on November 18, 1988.
Application of section 2D1.1 equates possession of listed chemicals with intent to manufacture and manufacture. The dissent notes that “ultimately, of course, the objective was to manufacture illegal methamphetamine.” Dissent at 1013. Because of his objective, the dissent would treat Mr. Voss in precisely the same manner as if he had manufactured methamphetamine. Congress would not. As is discussed above, Congress has made an explicit determination that section 841(d) violators are to be treated less severely than those who are found guilty of manufacturing methamphetamine.
The dissent argues that the “statutory cap” prevents the application of section 2D1.1 from subverting this intention. Dissent at 1014 n. 2. At some level, this is correct, but only in the most literal sense; the Guidelines may not authorize a sentence in excess of the statutory maximum. Application of section 2D1.1 makes the statutory maximum the rule rather than the exception, is contrary to congressional intention, and prevents incorporation of individual offense characteristics in the guideline calculus. In our judgment, such an approach is unsupportable.
Because the amendment here is substantive rather than merely clarifying, we do not apply it. Nevertheless, it does support our conviction that section 2D1.1 does not apply to section 841(d) violations. In United States v. Nissen, 928 F.2d 690, 695 (5th Cir.1991), the court considered a subsequent change to the text of the Guidelines themselves in interpreting a particular guideline section. In Nissen, as in this case, the amendment supported the court‘s reading of the Guidelines. Here, the addition of section 2D1.11 serves only to underscore the inapplicability of section 2D1.1 to listed chemicals offenses. The Commission‘s explanation of its change comports with our reading of the amendment. “This amendment makes Chapter Two, Part D more comprehensive by providing additional guidelines to address violations involving listed chemicals, . . . that are used in the manufacture of controlled substances.” Guidelines, Appendix C, amendment 371 (Nov.1991) (emphasis added). Had the previous versions of the Guidelines addressed violations involving listed chemicals, additional guidelines would not have been necessary.
The new guideline tracks Congress‘s statutory approach to listed chemical offenses. In Mr. Voss‘s case, the 110 pounds, or approximately 49.90 kilograms, of ephedrine seized at Tulsa, would result in a base offense level of 28. Guidelines, § 2D1.11(d)(1). The amount of ephedrine controls because it is “the single listed essential chemical resulting in the greatest offense level.” Guidelines, § 2D1.11(b). With Mr. Voss‘s criminal history score, a sentence of 78-97 months is indicated. In accord with the purposes of the Guidelines, the new guideline leaves room for consideration of aggravating and mitigating factors connected to a particular offense. Under the dissent‘s approach, ten years is required. Dissent at 1014 n. 2. The contrast between the dissent‘s approach and that adopted by the Sentencing Commission makes plain that the previous versions of the Guidelines did not address this conduct.
B.
We realize that other courts have applied section 2D1.1 to section 841(d) offenses. In United States v. Kingston, 922 F.2d 1234, 1237-39 (6th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2054, 114 L.Ed.2d 460 (1991), the court justified its application of the guideline by emphasizing the federal effort to block drug distribution efforts at the earliest possible moment. Id. at 1238. No doubt this reasoning supports enactment of section 841(d) itself, as it does the prosecution of Mr. Voss in this case. The reasoning does not, however, address the manifest intention of Congress to punish section 841(d) violators less severely than violators of the other drug offense sections of 841. As is discussed above, congressional intention with respect to both section 841 and the Guidelines themselves persuades us that section 2D1.1 should not have been employed to sentence Mr. Voss.
Most of the cases relied on by the government in its appeal consider the proper method of calculating drug quantity under section 2D1.1. See United States v. Andersen, 940 F.2d 593, 597-98 (10th Cir. 1991)10; United States v. Macklin, 927 F.2d 1272, 1281-82 (2d Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 146, 116 L.Ed.2d 112 (1991); United States v. Havens, 910 F.2d 703, 704-06 (10th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991). Each of these cases permits district courts to consider the amount of drugs that the defendant could produce in order to determine the defendant‘s base offense level under section 2D1.1. The government urges that the district court erred by refusing to consider the amount of drugs Mr. Voss could have produced from the chemicals seized in Tulsa. While we agree with the dissent that the district court‘s refusal to consider the producible quantity was improper under section 2D1.1, the district court‘s application of section 2D1.1 itself was erroneous.
C.
Once a court determines that section 2D1.1 does not apply, it must search for the most analogous guideline. Guidelines, § 2X5.1 (court to use most analogous guideline when no guideline has been expressly promulgated). Given the strictures of section 2X1.1 (conspiracy sentence re-
We VACATE Mr. Voss‘s sentence and REMAND for resentencing in accordance with this opinion.
EBEL, Circuit Judge, dissenting:
In my opinion, the district court appropriately applied sentencing guideline 2D1.1 to the violation of
An examination of the sentencing guidelines reveals that the district court appropriately sentenced Mr. Voss in accordance with section 2D1.1. The statutory index appended to the Guidelines, which determines “the guideline section or sections ordinarily applicable to the statute of conviction,” clearly cross-references
Mr. Voss was convicted of conspiring to possess listed chemicals with the intent to manufacture methamphetamine in violation of
Section 2D1.1 clearly encompasses this offense. Its heading indicates that it governs “Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses).” The majority stated that ” ‘[p]ossession with [i]ntent’ in the title to the
Other circuits have determined that it is appropriate to apply section 2D1.1 in cases involving section 841(d). The Sixth Circuit appears to have been the first to do so in United States v. Kingston, 922 F.2d 1234, 1237-38 (6th Cir.1990). In Kingston, the appellant was convicted of possession of a listed chemical with the intent to manufacture and distribute methamphetamine. The court noted that “Congress intended to punish severely the possession of listed chemicals with the intent to manufacture controlled substances” and determined that “the Guidelines dictate [that § 2D1.1] be followed in sentencing violators of § 841(d).” Id. at 1236.2
The Ninth Circuit followed suit in United States v. Cook, 938 F.2d 149 (9th Cir.1991). In Cook, the appellant pled guilty to possession of ephedrine with the intent to manufacture methamphetamine in violation of section 841(d)(1). The court determined that section 2D1.1 was applicable to possession of chemicals with the intent to manufacture methamphetamine in light of the language of its heading, reasoning as follows:
When the court sentences for a felony for which no guideline has been promulgated, the court “is required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous.” U.S.S.G. § 2X5.1, Comment (backg‘d.). . . . [Here], there was no need to invoke the principle of analogy. Guidelines, § 2D1.1 has the heading: “Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses).” In other words, the Guidelines include possession with intent to commit manufacturing under unlawful manufacture. There is not a mere analogy but an identity of crimes and punishments. As a result of treating possession with intent to manufacture in the same way as actually manufacturing, the Guidelines have created a mandatory maximum which in fact exceeds what the statute provides. In those circumstances Guideline § 5G1.1(a) comes into play and reduces the sentence to the statutory maximum.
Id. at 152 (citations omitted). Thus, the court found that section 2D1.1 expressly governs possession of chemicals with the intent to manufacture a controlled substance.
Even if section 2D1.1 did not expressly govern the situation at hand, it is certainly “the most analogous offense guideline” under section 2X5.1. See U.S.S.G. § 2X5.1 (if
In fact, Mr. Voss himself acknowledged that a sentencing court may appropriately look to the end product when dealing with precursor chemicals when he accepted the fact that his sentence for conspiracy to possess listed chemicals with the intent to manufacture methamphetamine was based upon the uncharged 1.5 pounds of the completed drug that was seized from his laboratory.
For the foregoing reasons, the district court appropriately applied section 2D1.1 to the underlying conduct in this case. I remain unconvinced by Mr. Voss’ argument that application of section 2D1.1 is inappropriate because the appendix cross-referencing section 841(d) to section 2D1.1 was written before the current version of 841(d) was enacted. The fact that the reference in the appendix remained in effect after the current version of section 841(d) was enacted seems to me to be more indicative of the Sentencing Commission‘s intent.
Nor am I persuaded by Mr. Voss’ argument that the recent amendments to the Guidelines, which establish a base offense schedule for possession of listed chemicals, see U.S.S.G. § 2D1.11(d) (Nov.1991), illustrate that the previous versions of the Guidelines did not address this conduct.3 “The Sentencing Commissions’ post hoc clarification of its intent does not invalidate our pre-amendment interpretation of the guideline.” United States v. Saucedo, 950 F.2d 1508, 1515 (10th Cir.1991). Furthermore, the existence of the amendment is immaterial for conduct predating the amendment because section 2X5.1 was designed precisely for the situation in which the conduct at issue was not expressly covered. If the amendment is an acknowledgment that the previous version of the guidelines did not expressly address possession of precursor chemicals, we are then referred by section 2X5.1 to “the most analogous offense guideline.” As discussed supra, section 2D1.1 is the most analogous guideline and would thus still be applicable.4
For the above reasons, the district court did not err by applying section 2D1.1.5 I agree with the government‘s argument, however, that the district court did err in not considering the quantity of methamphetamine producible from the chemicals seized in Oklahoma, as required by the law within our Circuit and others.
Application Note 2 to section 2D1.4 states that “[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.4, comment. (n.2) (emphasis added).6 See also United States v. Havens, 910 F.2d 703, 704 (10th Cir.1990) (“In cases where the amount of drugs seized does not reflect the scale of the offense, the commentary to the Guidelines requires the trial judge to approximate the quantity of the controlled substance.“) (emphasis added). “In making this determination, the judge may con-
DEA agents found only one-quarter ounce of methamphetamine at the time of Mr. Voss’ arrest and 1.5 pounds of methamphetamine during a later search of his laboratory. However, a California Department of Justice chemist estimated that the chemicals seized at the time of Mr. Voss’ arrest had the potential to produce a minimum of eighty pounds of methamphetamine. In light of this potential, the amount of drugs seized clearly does not reflect the scale of Mr. Voss’ offense. Thus, the mandatory language of section 2D1.4 requires the sentencing court to approximate the quantity of methamphetamine producible from the chemicals possessed.
In Kingston, the Sixth Circuit recognized the dilemma posed in cases of this nature: “The crux of the problem is this: violators of § 841(d) have not sold or made any controlled substances, but § 2D1.1, which the Guidelines dictate be followed in sentencing violators of § 841(d), fixes sentences based solely by the amount of controlled substance involved in the offense.” Id. at 1236 (citation omitted). The court reasoned that “basing the sentence on the amount of the controlled substance that would have been involved in the crime had the scheme advanced[] is the fairest way to reconcile § 841(d) and U.S.S.G. § 2D1.1.” Id. at 1237. This method is “more in line with the spirit of the laws” because Congress intended to punish severely possession of listed chemicals with intent to manufacture controlled substances. Id. at 1236-37.
As the majority acknowledges, subsequent cases permit district courts to consider the amount of drugs that the defendant could have produced with the chemicals in his possession in order to determine the defendant‘s base offense level under section 2D1.1. See Opinion at 1011. In Havens, this Circuit held that “[i]n cases where the amount of drugs seized does not reflect the scale of the offense, the commentary to the Guidelines requires the trial judge to approximate the quantity of the controlled substance.” 910 F.2d at 704. When only small amounts of the completed drug were found with the large amounts of precursor chemicals “the trial court, upon proper testimony, may estimate the ultimate quantity of produceable drugs.” Id. at 704-05. In United States v. Macklin, 927 F.2d 1272 (2d Cir.1991), the Second Circuit similarly found that a sentence based upon an estimate of the total producible amount was proper when precursor chemicals were seized prior to any effort to manufacture controlled substances. Id. at 1281; see also United States v. Smallwood, 920 F.2d 1231, 1237 (5th Cir.1991) (sentence based upon estimate of production capabilities proper when defendant was sentenced only for possession with intent to distribute methamphetamine).
The holding of this Circuit in Havens, 910 F.2d at 704, is clear. When the amount of finished product seized does not reflect the scale of the offense, the plain language of Application Note 2 to section 2D1.4 requires the district court to consider the amount of drugs that would have been produced had the defendant‘s scheme come to its fruition.
According to the California Department of Justice chemist, the chemicals seized from Mr. Voss had the potential to produce at least eighty pounds of methamphetamine. Under the Drug Quantity Table, this amount results in a base offense level of 38, for which the sentencing range is 235 to 293 months. Because Mr. Voss’ sentence cannot exceed the statutory maximum, however, he should be sentenced to ten years in prison.
For the foregoing reasons, I believe that section 2D1.1 is applicable to violations of