Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit
12-28-1994
United States v. Bogusz Precedential or Non-Precedential:
Docket 92-5575
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Recommended Citation "United States v. Bogusz" (1994). 1994 Decisions. Paper 229. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/229
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 92-5575 ___________
UNITED STATES OF AMERICA, Appellee
v.
DONALD BOGUSZ, a/k/a Bogey, Appellant
(D.C. Criminal Action No. 91-00401-4) ___________
No. 92-5595 ___________
JOHN O'ROURKE, a/k/a Hap, Appellant
(D.C. Criminal Action No. 91-00401-7) ___________
Appeal from the United States District Court for the District of New Jersey
___________
Argued: August 9, 1994
PRESENT: HUTCHINSON and NYGAARD, Circuit Judges, and LUDWIG, District Judge*
(Filed December 28, 1994)
____________
_______________
* Hon. Edmund V. Ludwig, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Glenn A. Zeitz, Esquire (Argued) Julia S. Ingersoll, Esquire Zeitz & Talty Suite 2628 1700 Market Street Philadelphia, PA 19103 Attorneys for Appellant Donald Bogusz
Dennis A. Durkin, Esquire David D.F. Lawrence, Esquire (Argued) Durkin & Durkin Suite 1700 Gateway One Newark, NJ 07102-5311 Attorneys for Appellant John O'Rourke
Michael Chertoff, Esquire Edna B. Axelrod, Esquire Leslie F. Schwartz, Esquire (Argued) Office of United States Attorney Room 502 970 Broad Street Newark, NJ 07102 Attorneys for Appellee
OPINION OF THE COURT ____________
HUTCHINSON, Circuit Judge.
Appellants, Donald Bogusz ("Bogusz") and John O'Rourke
("O'Rourke"), appeal criminal sentences imposed on them by the
United States District Court for the District of New Jersey.1
The district court sentenced Bogusz to 120 months and O'Rourke to
168 months of imprisonment for their criminal involvement with a 1 . O'Rourke also appeals his conviction. In that respect, he argues: (1) that the district court erred in refusing to sever his trial from his co-defendants and (2) that the variance between the proof at trial and the indictment unduly burdened him. Upon review, we hold that these issues lack merit. methamphetamine laboratory. Because the district court
erroneously interpreted the United States Sentencing Guidelines
(the "Guidelines"),2 it miscalculated Bogusz's and O'Rourke's
sentences. Therefore, we will vacate both their sentences and
remand for resentencing.
I. Background
Because this appeal focuses on sentencing, only a
summary of the facts material to the sentencing issues is needed.
On August 29, 1991, a federal grand jury returned an indictment
against twelve individuals, including Bogusz and O'Rourke,
charging them with participation in a scheme to manufacture and
distribute methamphetamine. Bogusz located and obtained
glassware and phenylacetic acid, a methamphetamine precursor, for
the methamphetamine production process. O'Rourke served as a
"plumber." In that capacity, he unclogged drains that became
blocked during the methamphetamine manufacturing process.
Bogusz and O'Rourke received methamphetamine as part of
the consideration for their services. O'Rourke received four of
the eight pounds of methamphetamine produced while he worked on
the pipes and Bogusz got one pound. The methamphetamine produced
was described as "sticky" and "like caramel" indicating its poor
quality. In fact, Bogusz gave half of his methamphetamine to a
2 . Unless otherwise stated, all references to the Guidelines are to the 1991 version, the Guidelines in effect at the time of the appellants' sentencing. See 18 U.S.C.A. § 3553(a)(4) (West 1985). co-conspirator and returned the other half because of its poor
quality.
On March 17, 1992, Bogusz pled guilty under a plea
agreement to a conspiracy to distribute more than two pounds of
phenylacetic acid, a listed chemical, knowing that it would be
used to manufacture methamphetamine, a controlled substance, in
violation of 21 U.S.C.A. § 841(d)(2) (West Supp. 1994). On
May 14, 1992, after a jury trial, O'Rourke was convicted of a
conspiracy to manufacture methamphetamine with intent to
distribute in violation of 21 U.S.C.A. § 846 (West Supp. 1994)
and possession with intent to distribute in excess of one
kilogram of methamphetamine in violation of 21 U.S.C.A.
§ 841(a)(1) (West Supp. 1994).
At Bogusz's sentencing, the district court adopted a
recommendation in the probation office's Presentence Report (the
"PSR") to apply a higher base offense level than the one
stipulated in Bogusz's plea agreement. Bogusz and the government
had stipulated to a base offense level of 24, applying U.S.S.G.
§ 2D1.11(d)(3); but the PSR recommended applying U.S.S.G. § 2D1.1
with a base offense level of 34. Using a cross-reference from
section 2D1.11(c)(1) to section 2D1.1, the district court decided
the base offense level was 34. Because phenylacetic acid is not
included in section 2D1.1's Sentencing Table, use of section
2D1.1 required conversion of the phenylacetic acid quantities to
those of a substance on the table. The probation officer
preparing the PSR converted the eight pounds of phenylacetic acid to two pounds of methamphetamine, the amount of methamphetamine
produced from the phenylacetic acid.
The PSR also recommended that sentencing be based upon
"methamphetamine (actual)" as opposed to "methamphetamine."3 The
base offense level for two pounds of methamphetamine (actual)
under section 2D1.1 was 34. U.S.S.G. § 2D1.1(c)(5) (Drug
Quantity Table). This ultimately resulted in Bogusz's 120-month
sentence. Sentencing under section 2D1.11(d)(3), with its base
level of 24, in accord with the stipulation in the plea
agreement, would have resulted in a sentencing range of 51 to 63
months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). Applying
a two level reduction for acceptance of responsibility and a
criminal history category of III to this offense level, the
Guidelines indicated that Bogusz should be sentenced to 151 to
188 months of imprisonment. Id. Because the statutory maximum
sentence under 21 U.S.C.A. § 841(d) is 120 months, the district
court sentenced Bogusz to 120 months. See U.S.S.G. § 5G1.1(a)
("Where the statutorily authorized maximum sentence is less than
the minimum of the applicable guideline range, the statutorily
authorized maximum sentence shall be the guideline sentence.");
see also United States v. Donley, 878 F.2d 735, 741 (3d Cir. 1989) ("the underlying statute shall control in case of conflict
with the Sentencing Guidelines"), cert. denied., 494 U.S. 1058
(1990). 3 . Section 2D1.1 subjects methamphetamine (actual) to a more severe base offense level. What the phrase methamphetamine (actual) means is an issue in these appeals which we discuss infra in Part III-A. At O'Rourke's sentencing, the district court again
adopted the PSR's recommendation to apply U.S.S.G. § 2D1.1 and
again decided that the methamphetamine was methamphetamine
(actual). Based on the eight pounds of methamphetamine produced
when he worked on the pipes, O'Rourke received a base offense
level of 38, see U.S.S.G. § 2D1.1(c)(3), but the district court
granted O'Rourke a four point offense level reduction for his
mitigating role. See U.S.S.G. § 3B1.2(a). Using a criminal
history category of II and an offense level of 34, the Guidelines
put O'Rourke in a sentencing range of 168 to 210 months
imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
O'Rourke was sentenced to concurrent sentences of 168 months
imprisonment on each count. Both Bogusz and O'Rourke filed
timely notices of appeal.
II. Jurisdiction and Standard of Review
The district court had subject matter jurisdiction over
these criminal cases pursuant to 18 U.S.C.A. § 3231 (West 1985).
We have appellate jurisdiction over this consolidated appeal
under 28 U.S.C.A. § 1291 (West 1993) (review of final decisions)
and 18 U.S.C.A. § 3742 (West 1985) (review of sentences).
Under the Guidelines, we review a district court's
findings of fact for the limited purpose of determining whether
they are clearly erroneous. United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993); United States v. Belletiere, 971 F.2d
961, 964 (3d Cir. 1992); see also 18 U.S.C.A. § 3742(e) (West Supp. 1994) (reviewing courts "shall accept the findings of fact of the district court unless they are clearly erroneous").
Findings of fact are clearly erroneous when "the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Findings involving
mixed questions of law and fact are subjected to a more demanding
scrutiny "approaching de novo review as the issue moves from one
of strictly fact to one of strictly law." Belleteire, 971 F.2d
at 964 (quoting United States v. Murillo, 933 F.2d 195, 198 (3d
Cir. 1991)). When the essential facts are not in dispute, our
review of the district court's interpretation of the Guidelines,
like our review of a statute's interpretation, is plenary. See
United States v. Rosen, 896 F.2d 789, 790-91 (3d Cir. 1990). We
must, however, defer to the Sentencing Commission's
interpretation of the Guidelines unless "it violates the
Constitution or a Federal Statute, or is inconsistent with, or a
plainly erroneous interpretation of, that [provision]." Stinson
v. United States, 113 S. Ct. 1913, 1915 (1993).
III. Discussion Bogusz raises four challenges to the district court's
sentences. O'Rourke joins with him in two. First, both contend
that the district court erred in finding the unanalyzed
methamphetamine, upon which their sentencing was based, to be
methamphetamine (actual). Second, both argue that the district
court erred in tacitly finding that the methamphetamine was
Dextro-methamphetamine ("D-methamphetamine") as opposed to Levo- methamphetamine ("L-methamphetamine"). Third, Bogusz argues that
U.S.S.G. § 2D1.1 does not apply to violations of 21 U.S.C.A.
§ 841(d)(2) (West Supp. 1994), and that U.S.S.G. § 2D1.11 is the
only Guidelines provision applicable to this offense. Fourth,
Bogusz contends that the government is violating its plea
agreement with him by arguing for affirmance of the district
court's sentence. We will address each challenge in turn.
A. Guidelines' Treatment of Methamphetamine
To apply U.S.S.G. § 2D1.1, a sentencing court must
first determine whether the substance in question is
methamphetamine or methamphetamine (actual). This determination
involves two related issues. We must first consider whether the
methamphetamine that Bogusz and O'Rourke helped produce was
"pure" methamphetamine, a necessary condition for its
classification as methamphetamine (actual), and then the more
complex question of whether the government must also prove that
the substance is D- or L-methamphetamine.
1. Methamphetamine (Actual) The difference between methamphetamine and
methamphetamine (actual) is highly significant for sentencing
purposes: methamphetamine (actual) is subject to an offense
level ten times greater than methamphetamine. See U.S.S.G.
§ 2D1.1, comment.(n.10) (Drug Equivalency Table) (one gram of
methamphetamine (actual) is treated as the equivalent of ten
grams of marijuana while one gram of methamphetamine is equivalent to one gram of marijuana); see also United States v.
Lande, No. 94-8038, 1994 WL 627425, at *5 n.1 (10th Cir. Nov. 9,
1994); United States v. Carroll, 6 F.3d 735, 744 (11th Cir. 1993)
(discussing the effect on sentencing) (citing United States v.
Brown, 921 F.2d 785, 789 & n.2 (8th Cir. 1990)), cert. denied
sub. nom., Jessee v. United States, 114 S. Ct. 1234 (1994).
The district court defined methamphetamine (actual) as
"pure methamphetamine."4 The court then explained: Well, pure is how you define "pure." I'm defining it, "pure," as uncut product, not whether the product was good product or bad product. Now that may be erroneous, in which case I'll be reversed on appeal. But the fact of the matter is that a caramel-like mess to me is not the critical point; the point is, that's what came out of the manufacturing process, and it had not yet been cut.
Bogusz Appendix at 85. Bogusz and O'Rourke argue that
methamphetamine (actual) refers to the percentage purity of the
end product. That is, they argue that methamphetamine (actual)
refers to the net amount of methamphetamine hydrochloride present
in the substance upon which sentencing is based.
The Guidelines' commentary defines methamphetamine
(actual) as "the weight of the controlled substance, itself,
contained in the mixture or substance." U.S.S.G. § 2D1.1(c),
comment.(n.*).5 The Guidelines also provide the following
4 . Prior to the 1991 amendments, the Guidelines also used the term pure instead of actual. See U.S.S.G. App. C., amend. 395. 5 . In this respect, the Guidelines' treatment of methamphetamine and PCP is contrary to the gross weight method of calculating the illustrative example: "a mixture weighing 10 grams containing
PCP at 50% purity contains 5 grams PCP (actual)." Id. (under the
Guidelines, PCP and methamphetamine are treated identically).
Unfortunately, the commentary to the Guidelines is
susceptible to either interpretation of "pure," and each has case
law support. Compare United States v. Macklin, 927 F.2d 1272,
1282 (2d Cir.) (holding that "pure" merely means uncut or
unadulterated), cert. denied, 112 S. Ct. 146 (1991); United
States v. Patrick, 983 F.2d 206 (11th Cir. 1993) (same in dicta)
with Carroll, 6 F.3d at 746 ("the only way to calculate the
quantity of 'pure methamphetamine' in determining a defendant's
base offense level under § 2D1.1(c) is to multiply the purity of
the mixture times the weight"), cert. denied sub. nom., Jessee v.
United States, 114 S. Ct. 1234 (1994); United States v. Rusher,
966 F.2d 868, 880 (4th Cir.) (same), cert. denied, 113 S. Ct. 351
(1992); United States v. Alfeche, 942 F.2d 697, 699 (9th Cir.
1991) (same); United States v. Brown, 921 F.2d 785, 789-90 (8th
Cir. 1990) (same); see also United States v. Spencer, 4 F.3d 115,
122 (2d Cir. 1993) (noting that pure methamphetamine does not
include the weight of impurities).
At oral argument, the government argued that adoption
of the appellants' interpretation would reward them for being
"poor cooks." Transcript of Oral Arguments at 46. This
contention reflects a fundamental misunderstanding of (..continued) quantity of all other controlled substances. See Chapman v. United States, 111 S. Ct. 1919, 1926 (1991). The gross weight method is known as a "market oriented approach." Id. at 1925. methamphetamine production and the Guidelines' treatment of it.
Sentencing for methamphetamine drug offenses is intended to
punish all cooks equally. Sentencing under methamphetamine
(actual) punishes particularly good cooks and their employers
more severely. Methamphetamine, as produced through normal
chemical processes, contains a number of impurities. See
Spencer, 4 F.3d at 121 (noting that methamphetamine results from
a "chemical reaction which yields a mixture of methamphetamine
and various impurities"); United States v. Stoner, 927 F.2d 45,
47 (1st Cir.) (noting that methamphetamine "virtually never is
completely pure"), cert. denied, 112 S. Ct. 129 (1991). The
initial product can then be processed further to remove these
impurities. The purified product, being more concentrated, can
then be cut into larger quantities for resale. The
interpretation Bogusz and O'Rourke urge on us does not reward bad
cooks; instead, it merely punishes more severely the
sophisticated cooks who could otherwise manipulate the Guidelines
by producing smaller quantities of more concentrated
methamphetamine.
The government's reliance on Chapman v. United States, 111 S. Ct. 1919, 1925 (1991), and its discussion of Congress'
"market-oriented" approach is also misplaced. As the Supreme
Court noted in Chapman, Congress and the Guidelines identified
methamphetamine and PCP as drugs warranting differential
treatment with regard to purity and thus provided for their
unique sentencing scheme. See id. at 1924. An interpretation of
purity that relies upon the treatment of other controlled substances conflicts with the Guidelines' unique treatment of
After consideration of the text and commentary of the
Guidelines, existing case law and the peculiar sentencing scheme
for methamphetamine, we hold that methamphetamine (actual) refers
to the net amount of methamphetamine hydrochloride produced and
not the gross amount of uncut methamphetamine. Thus,
methamphetamine (actual) refers to the net amount of
methamphetamine hydrochloride after all impurities, waste, by-
products, or cutting agents are removed.
The government argues that Bogusz and O'Rourke did not
show that the methamphetamine "contained a cutting agent, waste
product, or any substance other than the controlled substance
itself." Brief of Appellee at 46. In essence, the government is
arguing that defendants bear the burden of showing the portion of
the substance that is not methamphetamine (actual). This
argument fails. Although the purity of a methamphetamine product
does not bear on a defendant's guilt or innocence and, thus, does
not invoke the "beyond a reasonable doubt" standard of In re
Winship, 397 U.S. 358, 360 (1970), it does have a profound effect
on the sentence imposed, and the government bears the burden of
proving it, albeit by only a preponderance of the evidence. See
United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993).
In some situations, a chemical analysis of the
substance that indicates its purity may be required for the
government to meet this burden. In others, circumstantial
evidence of purity may be sufficient. We hold only that the government must produce evidence of the quantity of
methamphetamine hydrochloride the mixture in question contains if
a defendant is to be sentenced under U.S.S.G. § 2D1.1 for
methamphetamine (actual).
In this case, some of the evidence produced at trial
supports the district court's tacit finding of 100% purity.
Trial testimony showed that the defendants were in possession of
a functional recipe, proper equipment, and requisite chemicals.
There was, however, other evidence on the color and consistency
of the product which indicated poor quality and could have
supported a finding of impurity. Manufactured methamphetamine is
not 100% pure regardless of the sophistication of the equipment.
Therefore, the government cannot rely solely on the nature of the
production process and assume that the total product is pure
methamphetamine which calls for sentencing under methamphetamine
(actual). Instead, we think there should be a finding, based on
evidence, on how much methamphetamine hydrochloride is included
in the mixture that constitutes the end product. Because the
district court failed to make such a finding, we will remand for
further fact finding on the purity of the product.6
6 . It has sometimes been suggested that giving the government a second chance to make the requisite showing that it was unable to achieve originally is inconsistent with the Double Jeopardy Clause of the Fifth Amendment. This Court, however, has held that "sentencing proceedings are not . . . so trial-like as to implicate the Double Jeopardy Clause." Wilmer v. Johnson, 30 F.3d 451, 458 (3d. Cir.), cert. denied, 63 U.S.L.W. 3347 (U.S. Oct. 31, 1994) (No. 94-5891); see also Caspari v. Bohlen, 114 S. Ct. 948, 957 (1994) (refusing to decide this issue). 2. Organic Composition
On the second aspect of methamphetamine sentencing,
both Bogusz and O'Rourke challenge the district court's tacit
assumption that the methamphetamine was D-methamphetamine as
opposed to L-methamphetamine. The two are grossly different in
physiological effect and, as we shall see, this difference is
reflected in the Guidelines drug equivalency tables by a factor
of 250 to 1. An initial failure of the parties to appreciate the
chemistry involved and thus to inform the district court of the
scientific basis for this contention requires us to consider
whether Bogusz and O'Rourke have waived any issue regarding the
distinction between D-and L-methamphetamine. Discussion of the
principles of organic chemistry that underlie this issue is
necessary before the problem created by the distinction between
D- and L-methamphetamine can be understood. See United States v.
Ammar, 714 F.2d 238, 261-64 (3d Cir.) (pre-Guidelines case
discussing chemical difference between D- and L-heroin), cert.
denied sub nom. Stillman v. United States, 464 U.S. 936 (1983).
The methamphetamine molecule, like most organic
molecules, exists in different "isomeric" forms. Isomers "are
compounds that have the same molecular formula but different
structural formulas." Harold Hart, Organic Chemistry: A Short
Course 15 (6th ed. 1983) ("Organic Chemistry Text"). Just as
people are either right- or left-hand dominant, a molecule can
sometimes exist in right- and left-handed forms. See Organic Chemistry Text at 125-26; Roger A. Hegstrom & Dilip K. Kondepudi,
The Handedness of the Universe, Scientific American, Jan. 1990, at 108 ("Hegstrom & Kondepudi Article"); United States v.
Patrick, 983 F.2d 206, 209 (11th Cir. 1993). A molecule "that
exhibits the property of handedness" is called a chiral
molecule.7 The two forms of the chiral molecules are called
enantiomers.8
Each enantiomer is labelled either Dextro or Levo, or D
or L. Hegstrom & Kondepudi Article at 109. The difference is
determined by the optical rotation of light. D is right-handed
and L is left-handed. One is the mirror image of the other; that
is, they are mirror symmetrical. Id. Although enantiomers only
differ with respect to chirality, the human body "is highly
sensitive to enantiomeric differences." Id. For example, the
thalidomide birth defects of the 1960's resulted because one
enantiomer of thalidomide stopped morning sickness while the
other caused birth defects. Id. at 109-10.9
7 . Chirality was discovered in 1847 by Louis Pasteur. See Hegstrom & Kondepudi Article at 108; Organic Chemistry Text at 127. 8 . Thus, enantiomers are isomers that are not identical with their mirror image; that is, the enantiomers are nonsuperimposable. Organic Chemistry Text at 121-25. For example, the mirror image of a right hand is not another right hand but a left hand. Id. 9 . Not all enantiomers have such disparate effects on the human body. See, e.g., New Jersey v. Cathcart, 589 A.2d 193, 198 (N.J. App. Div. 1991) (discussing the similar effects of D- and L- cocaine); United States v. Puglisi, 790 F.2d 240, 242 (2d Cir.) (same), cert. denied, 479 U.S. 827 (1986); United States v. Bockius, 564 F.2d 1193, 1195 (5th Cir. 1977) (same); United States v. Orzechowski, 547 F.2d. 978, 985 (7th Cir. 1976) (same), cert. denied, 431 U.S. 906 (1977). Methamphetamine exists in these two isomeric forms.10
L-methamphetamine is a compound that produces little or no
physiological effect when ingested. Carroll, 6 F.3d at 743.
D-methamphetamine, on the other hand, produces the physiological
effect desired by its users. Id.
The text of U.S.S.G. § 2D1.1 differentiates only
between methamphetamine and methamphetamine (actual). We have
previously discussed that distinction as it involves drug purity,
not organic structure. The question now posed is whether the
isometric structure of methamphetamine, as well as the net
quantity of methamphetamine hydrochloride, is relevant to
Guidelines sentencing. The Guidelines do not differentiate
between the D- and L- isomers of methamphetamine in the text of
section 2D1.1, but only in the commentary to it. There, in the
Drug Equivalency Tables, L-methamphetamine is treated far less
severely than either methamphetamine or methamphetamine (actual):
methamphetamine (actual) by a factor of 250, methamphetamine by a
factor of 25. See U.S.S.G. § 2D1.1 comment.(n.10) (Drug
Equivalency Table) (one gram of L-methamphetamine is equivalent
to 40 grams of marijuana, one gram of methamphetamine is
equivalent to one kilogram of marijuana, and one kilogram of
10 . The Eleventh Circuit, in United States v. Carroll, 6 F.3d 735, 743 (11th Cir. 1993), described a third form of methamphetamine: DL-methamphetamine. Standard texts, however, seem to recognize only two chemical forms of methamphetamine with DL-methamphetamine merely being a combination of the two forms. See Organic Chemistry Text at 127 (defining a racemic mixture as "a 50:50 mixture of enantiomers"). Our analysis would be unaffected if a third form does exist. methamphetamine (actual) is equivalent to 10 kilograms of
marijuana).11 With this chemical background in mind, we consider
first whether the issue raised by this distinction in their
physiological effect was fairly raised before the district court.
Bogusz and O'Rourke never used precise chemical terms in arguing
this question. They lumped this issue together with their
arguments on purity when they objected to sentencing based upon
an unanalyzed substance. Nevertheless, we conclude that Bogusz's
and O'Rourke's objections to sentencing based on the unanalyzed
substance produced at the methamphetamine laboratory fairly
raised and preserved the issue for appeal.
Even if Bogusz and O'Rourke were raising the issue for
the first time on appeal, we could nevertheless review the trial
court's findings for plain error. See Fed. R. Crim. P. 52(b)
("Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the
court."). We believe that under these circumstances the district
court's interpretation of the Guidelines would be plain error.
Because of the objections at sentencing, this case differs
factually from United States v. Peninno, 29 F.3d 572, 580 (11th Cir. 1994), in which the United States Court of Appeals for the
Eleventh Circuit refused to consider a similar claim because of
11 . The Drug Equivalency Tables are generally used only when a controlled substance is not listed in the Drug Quantity Table, U.S.S.G. § 2D1.1(c), or when it is necessary to combine different controlled substances. See U.S.S.G. § 2D1.1, comment.(n.10); cf. Ammar, 714 F.2d at 263 (upholding heroin conspiracy conviction without distinguishing between D- and L- isomers because statute did not distinguish them). the appellant's complete failure to object at sentencing.
Moreover, considering the gross disparity in sentencing, we
disagree with the Peninno court's holding that the determination
of methamphetamine type is entirely a factual question that
cannot rise to the level of plain error. Id.
The Fifth Circuit recently defined a plain error as one
"so obvious that [a] failure to notice it would seriously affect
the fairness, integrity, or public reputation of the judicial
proceeding and result in a miscarriage of justice." United
States v. Hoster, 988 F.2d 1374, 1380 (5th Cir. 1993) (quoting
United States v. Surasky, 974 F.2d 19, 21 (5th Cir. 1992), cert.
denied, 113 S. Ct 1948 (1993)); see also United States v. Olano,
113 S. Ct. 1770, 1776 (1993). We recognize that the term "plain
error" normally implies an error that is apparent as well as
unjust. See United States v. Atkinson, 297 U.S. 157, 160
(1936).12 Here, however, we think that the egregiousness of the
12 . Rule 56 is sometimes said to require a plain error to be an obvious error. See United States v. Blythe, 944 F.2d 356, 359 (7th Cir. 1991) (relying exclusively on Justice Scalia's dissenting opinion in Pretez v. United States, 111 S. Ct. 2661, 2678 (1991)). The Supreme Court, however, has defined plain errors as errors that "are obvious, or [that] otherwise seriously affect the fairness, integrity or public reputation of the judicial proceedings." Atkinson, 297 U.S. at 160. In United States v. Olano, 113 S. Ct. 1770 (1993), the Supreme Court, discussing Rule 52(b), stated that appellate review is available only when: (1) there is an error; (2) the error is "plain;" and (3) the error affects substantial rights. Id. at 1776-77. "Plain is synonymous with clear or, equivalently, obvious. . . . At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law." Id. at 1777 (internal citations and quotations omitted). Though the present error was not obvious, we think it was clear; thus, even if Bogusz's and O'Rourke's failure to appreciate the technical chemical basis for their objection was a waiver, we injustice that would result if the distinction between the two
isomers is not recognized outweighs the failure of Bogusz and
O'Rourke to articulate clearly the principles of organic
chemistry that underlie their objections to the district court's
application of the Guidelines.13
Thus, considering the magnitude of the difference in
sentencing that could result from the application of the wrong
organic isomer, we think the sentencing court's failure to make
this determination would result in a grave miscarriage of
justice.14 We will thus consider whether the distinction between
(..continued) think the requirements of Rule 52(b) would be met because of the great difference in the effect of the two substances that the commentary to U.S.S.G. § 2D1.1(c) recognizes when it distinguishes them by a conversion factor of 250 to 1. 13 . Moreover, a sentencing scheme that imposes the same penalty on a person who produces a compound with little or no effect as a person who produces a potent mind-altering drug would seem irrational. When interpreting the Guidelines, we apply traditional canons of statutory construction. Thus, we will not interpret the Guidelines in a manner that leads to irrational results when alternative interpretations consistent with the objectives of the Sentencing Reform Act are available. See, e.g., Griffin v. Oceanic Contractors Inc., 458 U.S. 564, 575 (1982). The Sentencing Reform Act intended to create "an effective, fair sentencing system." U.S.S.G. Ch. 1, Pt. A intro. comment. "To achieve this end, . . . Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity." Id. 14 . Because the Guidelines' confusing textual use of the term "actual" and its unexplained distinction between the two isomers in the commentary's reference to the equivalency table, we cannot criticize the district court for failing to appreciate this problem. Some commentators suggest that lawyers generally possess "an appalling degree of scientific illiteracy, which ill equips them to educate and guide the bench." Andre A. Moenssens et al., Scientific Evidence in Criminal Cases 7 (3d ed. 1986) the left- and right-handed isomers of methamphetamine is material
to the Guidelines sentences that can be legally imposed on Bogusz
and O'Rourke.
In United States v. Carroll, 6 F.3d 735 (11th Cir.
1993), the Court of Appeals for the Eleventh Circuit sought to
separate methamphetamine's purity from the effect of its isomers.
In that case, the defendant's sentence was based on
methamphetamine that contained 50% D- and 50% L-methamphetamine.
Id. at 743. The Court of Appeals held, "the distinction between
methamphetamine and [methamphetamine (actual)] refers to the
relative purity of any methamphetamine compound; it does not
refer to a particular form of methamphetamine." Id. at 744.
Thus, the 50% D- and 50% L-methamphetamine compound could be 100%
pure for purposes of calculating methamphetamine (actual). Judge
Bright dissented from the majority's "drug quality issue." Id.
at 747. Because the Guidelines "caused great confusion due to
the convoluted chemical rhetoric" required by their application
in this area, Judge Bright would have affirmed the lower court's
conclusion that purity should be based on the quantity of
D-methamphetamine. Id. at 749.15 An isolated literal reading of U.S.S.G. § 2D1.1(c) does
offer some support to the Carroll majority's separation of the
(..continued) (discussing the difficulties experienced by judges in determining the admissibility of expert evidence). 15 . Judge Bright lamented the complexity and confusion apparent in the Guidelines' treatment of methamphetamine. Carroll, 6 F.3d at 749 (Bright, J., dissenting). We add our voice to his lament. purity problem from the difference in the effect of the two
isomers. We think, however, that such a separation for purposes
of Guidelines' sentences would obliterate the distinction between
the effect of the two isomers that the Guidelines' commentary
recognizes in any case in which the Drug Equivalency Tables are
not used. Considering the difference between the physiological
effect of the two isomers, along with the Sentencing Commission's
recognition of that difference in its use of conversion factors
with a 1 to 250 ratio, the disparity in sentencing that would
result seems to us contrary to one of Congress's primary goals in
passing the Sentencing Reform Act--the substitution of uniformity
for disparity in sentencing.16 We think the Guidelines should
not be construed in a way that results in so greatly irrational a
disparity. To illustrate, under Carroll, a defendant convicted
of one gram of pure L-methamphetamine would have a base offense
level of 16 with a Guidelines range of 21 to 27 months
imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table)
(assuming a criminal history category of I). Another defendant
sentenced for one gram of pure L-methamphetamine and an
additional 200 grams of marijuana (thus, requiring conversion
under the Drug Equivalency Table) would have a base offense level
of 6 and a sentencing range of zero to six months. See U.S.S.G.
16 . The Sentencing Reform Act of 1984 sought to achieve "reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders." U.S.S.G. Ch. 1, Pt. A, intro. comment. Ch. 5, Pt. A (Sentencing Table) (again, assuming a criminal
history category of I).
Accordingly, we hold that the references to
methamphetamine and methamphetamine (actual) in the Drug Quantity
Tables of U.S.S.G. § 2D1.1(c) refer solely to quantities of
D-methamphetamine. In order to calculate a base offense level
under section 2D1.1(c) for L-methamphetamine, the substance in
question must first be converted into marijuana equivalents. See
U.S.S.G. § 2D1.1, comment.(n.10) (noting that the Drug Quantity
Tables do not include all substances and that the Drug
Equivalency Tables should be used for those that are not
included).
Because no determination of the isomeric composition of
methamphetamine was made at sentencing, this issue must also be
considered on remand. We again remind the government that it has
the burden of production and persuasion on this issue and that
the proper standard for the burden of persuasion is a
preponderance of the evidence. The type of proof required to
satisfy this standard will also vary from case to case.17 In
17 . See United States v. Lande, No. 94-8038, 1994 WL 627425, at *1-2 (10th Cir. Nov. 9, 1994) (affirming a district court's finding of D-methamphetamine based upon circumstantial evidence); United States v. Wessels, 12 F.3d 746, 754 (8th Cir. 1993) (reversing a district court for taking judicial notice that methamphetamine was D-methamphetamine), cert. denied, 115 S. Ct. 105 (1994); Patrick, 983 F.2d at 210 (requiring the government to prove that conviction was based upon D-methamphetamine). We do not think that this standard will create either an insurmountable burden or a meaningless hurdle for the government but, rather, merely recognizes the distinctions between the organic compositions and purity levels of methamphetamine the Guidelines require. We think some evidence of the quantity of each isomer some cases, the evidence will include a chemical analysis or
expert testimony. In others, circumstantial evidence of which
isomer is present may be sufficient to meet the preponderance of
the evidence standard. See United States v. Koonce, 884 F.2d
349, 352-53 (8th Cir. 1989) (affirming D-methamphetamine
determination based on circumstantial evidence of defendant's
prior methamphetamine shipment).
B. Section 2D1.11's Cross Reference to 2D1.1
Bogusz alone raises the next Guidelines issue. He
argues that the district court erred in applying U.S.S.G. § 2D1.1
under section 2D1.11's cross-reference to it. He contends that
section 2D1.1 does not apply to violations of 21 U.S.C.A.
§ 841(d). Bogusz pled guilty to distribution of a precursor
chemical knowing that it would be used to manufacture a
controlled substance but was sentenced for conspiracy to
unlawfully manufacture the quantity of the controlled substance
that was produced from the precursor chemicals he delivered.
(..continued) is needed because Congress and the Sentencing Commission deemed methamphetamine different enough to warrant this unique sentencing scheme. The inapplicability of the prohibition against hearsay to sentencing proceedings, see United States v. Sciarrino, 884 F.2d 95, 96 (3d Cir.), cert. denied, 493 U.S. 997 (1989), should facilitate the production of evidence in the form of expert opinion. Moreover, we do not think precise quantitative analysis of the product should be required, only some reasonable estimate of the relative amounts of each isomer, perhaps inferred from the production method and results generally obtained in laboratory experiments using normal production methods. Bogusz relies primarily on United States v. Voss, 956
F.2d 1007 (10th Cir. 1992), a case decided under the Guidelines
in effect before the amendment adopting section 2D1.11. In Voss,
over a strong dissent by Judge Ebel, the court held U.S.S.G.
§ 2D1.1 inapplicable to violations of 21 U.S.C.A. § 841(d). Id.
at 1012. The majority reasoned that its application "would
insure that almost all violators of section 841(d) would be
sentenced to the ten year maximum imprisonment, thus turning a
statutory maximum into a mandatory sentence." Id. at 1010
(citations omitted). The majority refused to interpret the
Guidelines in a manner that would achieve this result, fearing
that such an interpretation "would effectively nullify the
various sections of the Guidelines geared to a particular
defendant's offense specific conduct." Id.
Since Voss, the Guidelines have been amended and
section 2D1.11 now clearly applies to violations of section 21
U.S.C.A. § 841(d). See U.S.S.G. § 2D1.11 (Unlawfully
Distributing, Importing, Exporting or Possessing a Listed
Chemical; Attempt or Conspiracy). We sympathize with the concern
the Voss majority expressed,18 but we cannot reconcile it with 18 . The Voss majority also expressed concern over treating section 841(d) violators the same as actual drug manufacturers. The Guidelines, as amended since Voss, cross reference to section 2D1.1 only when the "offense involved unlawfully manufacturing or attempting to manufacture a controlled substance . . . ." U.S.S.G. § 2D1.11(c)(1). Section 841(d) can be violated by conduct not meeting this requirement. Therefore, we do not believe that the Sentencing Commission acted irrationally by equating the penalties for these offenses. In fact, the theory behind all inchoate penalties is based on some belief in equivalent culpability. the text of the amended Guidelines. See United States v.
O'Leary, 35 F.3d 153, 154 (5th Cir. 1994). Section 2D1.11(c)(1)
states: "If the offense involved unlawfully manufacturing a
controlled substance, or attempting to manufacture a controlled
substance unlawfully, apply § 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, Trafficking) if the resulting offense level
is greater than that determined above." U.S.S.G. § 2D1.11(c)(1).
The Guidelines explain that section 2D1.11(c)(1) applies when
"the defendant, or a person for whose conduct the defendant is
accountable under § 1B1.3 (Relevant Conduct), completed the
actions sufficient to constitute the offense of unlawfully
manufacturing a controlled substance or attempting to manufacture
a controlled substance unlawfully." Id. § 2D1.11, comment.(n.2).
The relevant conduct referred to in section 1B1.3 includes "all
acts . . . committed, aided, abetted, counselled, commanded,
induced, procured, or willfully caused by the defendant; and in
the case of a jointly undertaken criminal activity . . . all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity." Id.
§ 1B1.3(a)(1)(A & B).
Unless there is a showing of contrary intent, we must
"follow the clear unambiguous language of the Guidelines."
United States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993). Therefore, we apply the Guidelines as they were written, not as
we think they should have been written. Id. The district court
had before it sufficient evidence to determine that Bogusz's
conduct satisfied the requirements of U.S.S.G. § 2D1.11(c)(1). Accordingly, we hold that the district court did not err in its
reliance on section 2D1.1 by cross-reference from section 2D1.11.
However, the use of section 2D1.11 requires us to
consider a constitutional issue. If the Voss majority's
interpretation of the pre-1991 Guidelines was correct, Bogusz's
sentence would conflict with the Ex Post Facto Clause. U.S.
Const. art. I, § 9, cl. 3. The prohibition against the passage
of ex post facto laws includes, inter alia, "[e]very law that
changes the punishment and inflicts a greater punishment than it
was when committed." Calder v. Bull, 3 Dall. 386, 390 (1798).
In Miller v. Florida, 482 U.S. 423 (1987), the Supreme Court, in
striking down the use of a state sentencing guideline, held that
an application of a sentencing provision to conduct occurring
before its passage or promulgation violates the Ex Post Facto
Clause whenever "the law [is] retrospective, that is, it . . .
appl[ies] to events occurring before its enactment, and . . . it
. . . disadvantage[s] the offender affected by it." Id. at 430
(internal quotations and citations omitted).
Bogusz was sentenced under the 1991 Guidelines for
conduct that occurred from early April to early May 1990. The
1991 Guidelines became effective November 1, 1991. Therefore, if
the 1990 Guidelines would have resulted in a lower sentence, the
Ex Post Facto Clause would require its application. See United States v. Spiropoulos, 976 F.2d 155, 160 n.3 (3d Cir. 1992)
("district courts are required to apply the time-of-offense
[G]uidelines rather than the time-of-sentence [G]uidelines when
. . . the time-of-offense [G]uidelines are more favorable to the defendant"). Thus, if the Voss interpretation of the earlier
Guidelines were correct, Bogusz could have received a less severe
sentence under the pre-1991 revision of the Guidelines. See
Voss, 956 F.2d at 1013 (district court should base sentencing on
the purposes of 18 U.S.C.A. § 3553(b) (1988) without regard to
the Guidelines' sentencing table).
The Ex Post Facto Clause requires us to interpret the
pre-1991 Guidelines and meet the question posed by Voss, one this
Court has not previously decided under the pre-1991 Guidelines.
After thorough consideration, we find ourselves in agreement with
those courts that have rejected the view of the Voss majority.19
Following Judge Ebel's reasoning in dissent, we hold that, under
the pre-1991 Guidelines, violators of 21 U.S.C.A. § 841(d) could
properly be sentenced under U.S.S.G. § 2D1.1. Accordingly, we
conclude that application of the 1991 Guidelines did not
disadvantage Bogusz and thus no constitutional infirmity exists
under the Ex Post Facto Clause.
C. Bogusz's Plea Bargain
19 . See United States v. Leed, 981 F.2d 202, 207 (5th Cir.), cert. denied, 113 S. Ct. 2971 (1993); United States v. Cook, 938 F.2d 149 (9th Cir. 1991); United States v. Kingston, 922 F.2d 1234 (6th Cir. 1990), cert. denied, 500 U.S. 933 (1991); see also United States v. Perrone, 936 F.2d 1403, 1416-17 (2d Cir. 1991) (allowing application of U.S.S.G. § 2D1.1 for 21 U.S.C.A. violations only when the defendant knew or could reasonably foresee the manufacturing quantity on which sentencing is based). But see United States v. Hyde, 977 F.2d 1436, 1441 (11th Cir. 1992), cert. denied, 113 S. Ct. 1948 (1993). Finally, Bogusz argues that the government violated the
terms of his plea bargain by arguing for affirmance of the
district court's sentence in this appeal.20
In the plea bargain agreement between Bogusz and the
government, the parties stipulated that the base offense level
would be 24 under U.S.S.G. § 2D1.11(d)(3). The probation office,
in Bogusz's PSR, considered and rejected application of section
2D1.11(d)(3) and instead recommended application of section
2D1.11(c)(1) which, by cross-reference, requires the application
of section 2D1.1. The district court's decision to accept the
PSR recommendation raised Bogusz's base offense level to 34.
Bogusz does not appeal the district court's refusal to honor the
stipulation, however. See United States v. Torres, 926 F.2d 321
(3d Cir. 1991) (allowing the sentencing judge to consider
evidence outside the stipulation but requiring an opportunity for
plea withdrawal); United States v. Wagner, 994 F.2d 1467, 1475
(10th Cir. 1993) ("It is well settled the terms of a plea
agreement are not binding on the sentencing court.").
In Santobello v. New York, 404 U.S. 257 (1971), the
Supreme Court held that plea bargains are governed by the law of
contracts and, therefore, the parties' must strictly adhere to
20 . The government argues that Bogusz raised this issue for the first time in his reply brief. In response, the government filed a motion to strike this argument or, in the alternative, for leave to file a surreply brief. We denied these motions. We do not usually consider questions first raised in this manner. Here, however, the issue Bogusz raises became apparent only after the government filed its brief. Accordingly, Bogusz had no opportunity to raise it before he filed his reply brief. their promises. United States v. Badaracco, 954 F.2d 928, 939
(3d Cir. 1992); United States v. Hayes, 946 F.2d 230, 233 (3d
Cir. 1991). Courts use a three-step analysis to review plea
bargains: first, they determine the agreement's terms and the
conduct alleged to violate it; second, they determine if the
conduct violated the plea agreement; and third, if the plea
agreement is violated, they determine the remedy. Hayes, 946
F.2d at 233 (quoting United States v. Moscahlaidis, 868 F.2d
1357, 1360 (3d Cir. 1989)). Here, the terms of the plea bargain
are clear. Therefore, we focus on the second step. Determining
whether the government's conduct violated the plea agreement is a
question of law over which we have plenary review. Id.
The stipulations attached to the plea bargain between
Bogusz and the government state that "the applicable federal
sentencing guideline is section 2D1.11(3) carrying a base offense
level of 24." The government argues that the district court was
correct in sentencing Bogusz based on methamphetamine (actual) as
opposed to methamphetamine. Brief of Appellee at 41-49. Bogusz
claims that the government's presentation of this argument
violates the plea agreement.
Bogusz's plea agreement did not explicitly address the
post-conviction conduct of either party. See, e.g., United States v. Gonzalez, 981 F.2d 1037 (9th Cir. 1992) (plea agreement
with a no-appeal clause). Nevertheless, because "the government
cannot resort to a rigidly literal approach in the construction
of language," we are not limited to the express language of the
agreement. Badaracco, 954 F.2d at 939 (quoting United States v. Crusco, 536 F.2d 21 (3d Cir. 1976)). Rather, "[i]n determining
whether the terms of a plea agreement have been violated, the
court must determine whether the government's conduct is
inconsistent with what was reasonably understood by the defendant
when entering the plea of guilty." Id. (quoting United States v.
Nelson, 837 F.2d 1519, 1521-22 (11th Cir.), cert. denied sub nom.
Waldhart v. United States, 488 U.S. 829 (1988)).
A reasonable person in Bogusz's position may have
understood the stipulation to include an agreement not to argue
against the stipulation on appeal. Cf. Moore v. Foti, 546 F.2d
67, 68 (5th Cir. 1977) (defendants "successful challenge to his
plea bargained sentence is a tacit repudiation of the bargain").
Bogusz, however, did not appeal the district court's refusal to
follow the stipulation.
Moreover, the government does not directly argue
against the stipulation; instead, it contends only that the
district court's definition of methamphetamine (actual) is
correct. This issue is separate and distinct from the
stipulation. Similarly, Bogusz has not breached his plea
agreement by arguing directly for his own interpretation of
methamphetamine after he had stipulated to an unrelated
Guidelines' provision. Our adversarial system of justice relies
heavily on the presentation of opposing views by both parties, on
appeal as well as at trial. Thus, we are reluctant to deny any
party the right to advance its interpretation of law. Under the
circumstances before us, we hold that the government did not violate the letter or the spirit of the plea agreement by its
arguments on this appeal.
IV. Conclusion
For the reasons discussed above, the sentences imposed
on Bogusz and O'Rourke will be vacated and their cases remanded
for resentencing in a manner consistent with this opinion. In
all other respects, the orders of the district court are
affirmed. U.S. v. Bogusz and O'Rourke, Nos. 92-5575 and 92-5595
NYGAARD, Circuit Judge, concurring and dissenting.
I join in all parts of the majority's opinion except
for part III(A)(1). Because I believe the majority has adopted
the wrong test for determining the purity of methamphetamine, I
respectfully dissent from that portion of its opinion.
As the majority recognizes, the Sentencing Guidelines
provide two ways for sentencing a defendant convicted of
unlawfully manufacturing methamphetamine. Under U.S.S.G. §
2D1.1(c) cmt. * (1991), the court first looks to the "the entire
weight of any mixture or substance containing a detectable amount
of the controlled substance." Next, the court is instructed to
determine the weight of the pure form of the controlled substance
contained within the mixture, otherwise known as "methamphetamine
(actual)." These weights are then translated into offense levels
by use of the Drug Quantity Table, and the higher of the two
offense levels is used in determining the appropriate sentence.
The issue here is how much methamphetamine (actual) was
contained in the substance manufactured by the defendants.
Appellants contend that methamphetamine (actual) means only the
amount of pure methamphetamine, free of all impurities, while the
government argues that any uncut substance containing
methamphetamine is methamphetamine (actual), regardless of its
purity. The majority, while acknowledging that both views are
supported in the caselaw, concludes that "methamphetamine
(actual) refers to the net amount of methamphetamine hydrochloride produced and not the gross amount of uncut
methamphetamine." Majority transcript at 12.
I disagree with this conclusion. Precursor chemicals
used in the manufacture of methamphetamine cost money and may be
difficult to obtain. Consequently, it is counterintuitive to
conclude that every rational "cook" would not seek the highest
possible yield of methamphetamine hydrochloride from those
chemicals. The mere fact that the cook bungles the recipe and
produces a sticky, caramel-like substance of low purity, which no
user wishes to purchase, should not diminish punishment vis-a-vis
the "good" cook whose product is more pure and highly salable.
Moreover, the majority's holding also places an
unwarranted burden upon the government to obtain an enhanced
sentence based on the amount of methamphetamine (actual). Under
the majority's rule, the government must now have every sample of
methamphetamine analyzed and its purity determined; the mere fact
that the drug is uncut is no longer sufficient. First, we must
recognize that criminal defendants who operate "meth cooks" in
garages, barns and, as here, basements, are not scientists who
sit around discussing the molecular structure of their creations.
Bogusz was a mechanic who got the phenylacetic acid for the
"cook" and O'Rourke was a truck driver who cleaned out the drains
at the "cook." Second, "meth" is not produced under laboratory
conditions and is almost never pure. Third, in cases like this
one, where the specific batch of drugs at issue is never recovered and tested, the defendant will avoid an enhanced
sentence altogether, even when it is undisputed that the drugs
were uncut.
I would simply avoid these problems altogether and hold
that methamphetamine (actual) refers to the uncut output of the
manufacturing process, regardless of its purity. See United
States v. Macklin, 927 F.2d 1272, 1283 (2d Cir.), cert. denied,
112 S. Ct. 146 (1991). I therefore respectfully dissent.