United States v. McAlister

174 F. App'x 926

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 4, 2006
• Docket: 04-6476, 05-5004, 05-5005
• Status: Unpublished

Opinions

PER CURIAM.

Appellants pleaded guilty to various drug charges and received sentences corresponding to the amount of pseudoephed-rine possessed. The district court sentenced each defendant under the Federal Sentencing Guidelines’ Drug Equivalency Tables, determining the methamphetamine equivalents of the quantities of pseu-doephedrine. Appellants challenge the validity of the relevant Guidelines, arguing that the Sentencing Commission’s promulgation of the pseudoephedrine-to-metham-phetamine equivalency ratio ran afoul of the Commission’s congressional directive. Because Appellants have not shown that the Commission failed to follow Congress’s mandate, we affirm Appellants’ sentences.

I

Pseudoephedrine is “raw material” used in the manufacture of methamphetamine, and different manufacturing processes produce different yields. Before the enactment of the Guidelines at issue in this case, courts relied on expert testimony to estimate pseudoephedrine-to-methamphet-amine yields. Then, in 2000, Congress passed the Methamphetamine Anti-Proliferation Act, directing the Sentencing Commission to enact a Guidelines amendment structuring the penalty for illegal possession of pseudoephedrine at a level reflective of “the quantity of [methamphetamine] that could reasonably have been manufactured” from the pseudoephedrine. Pub.L. No. 106-310, § 3651, 114 Stat. 1101, 1238-39. The Act instructed the Sentencing Commission to determine a conversion ratio for the manufacture of methamphetamine from pseudoephedrine “based on scientific, law enforcement, and other data the Sentencing Commission considered] appropriate.” Id. at 1239.

Acting on this mandate, the Sentencing Commission added tables to sections 2Dl.ll(d) and 2D1.1 (application note 10) of the Guidelines, establishing a two-to-one ratio of pseudoephedrine to methamphetamine. In arriving at its ratio, the Commission used “data from the Drug Enforcement Agency, Office of Diversion Control, as published on the web site of the Office of National Drug Control Policy (ONDCP). These data indicate that the actual yield of methamphetamine from ephedrine and pseudoephedrine is ‘typically in the range of 50 to 75 percent.’ ” Proposed Amendments to the Sentencing Guidelines, 66 Fed.Reg. 7962, 7965 (Jan. 26, 2001).

After Appellants pleaded guilty to drug charges, the trial court .determined their sentences according to the amount of pseu-doephedrine in their possession.¹ Appellants objected to the court’s use of the Sentencing Guidelines, but the district court overruled the objection.

II

Appellants challenge the validity of the portion of the Drug Equivalency Table under which they were sentenced. If in promulgating its ratio for the Drug Equivalency Table the Commission acted inconsistently with Congress’s plain language, Congress’s language trumps the inconsistent ratio. United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997); see United States v. Butler, 207 F.3d 839, 852 (6th Cir.2000). Yet we “ ‘defer to [the Commission’s] interpretation as long as it is “sufficiently reasonable” in light of the Congressional directive.’ ” Butler, 207 F.3d at 850 (quoting United States v. Williams, 53 F.3d 769, 772 (6th Cir.1995)) (alteration in original).

Congress directed the Commission to determine the drug equivalency ratio “based on scientific, law enforcement, and other data the Sentencing Commission considered] appropriate.” Methamphetamine Anti-Proliferation Act § 3651. In Appellants’ view, the Commission based its ratio on Drug Enforcement Agency conclusions, and “[b]asing a decision on someone else’s conclusions is all together [sic] different from analyzing the available data and reaching one’s own conclusion.” Appellants quote the Minutes of the Sentencing Commission: “The Commission based the proposed penalty structure on the Drug Enforcement Administration’s determination that the average yield is between 50 and 75 percent.” Minutes of the March 20, 2001 United States Sentencing Commission Business Meeting, http://www.ussc.gov/MIN - UTES/3_20_01.htm (last visited Mar. 13, 2006).

The Commission’s single characterization of the DEA information—in its meeting minutes, no less—is not determinative. The Commission elsewhere characterized this information as “data”: “[The ratio] is based on data from the DEA that the actual yield ... is in the range of 50 to 75 percent.” U.S. Sentencing Guidelines Manual app. C (Supp. at 109-10) (2001) (emphasis added). Similarly, the Commission’s Notice of Proposed Amendments describes its ratio as based on data: “This table ... was developed from data from the Drug Enforcement Agency.... These data indicate that the actual yield of methamphetamine from ... pseudoephed-rine is ‘typically in the range of 50 to 75 percent.’ ” 66 Fed.Reg. at 7965 (emphasis added). Further, even if the Commission relied on a DEA “determination,” such a determination would suffice as data because the word “data” denotes “[ijnformation, esp. information organized for analysis or used as the basis for a decision-making. ” Webster’s II New College Dictionary 287-88 (2001) (emphasis added).

Appellants also argue that the “DEA’s ... determination that a typical yield was in the range of 50%-75% ... conflict[ed] with other available DEA sources at the time,” citing DEA testimony before Congress and before courts. See, e.g., United States v. Eschman, 227 F.3d 886, 889 (7th Cir.2000) (“Virginia Kleekamp, a chemist with the Drug Enforcement Administration ... indicated that an average yield for a clandestine laboratory is from 40% to 60%, but she has noted yields as high as 85%.”). Variations in the DEA’s—or its employees’—yield estimates, however, do not aid Appellants’ case. Congress directed the Commission to determine, “based on scientific, law enforcement, and other data the Sentencing Commission considered] appropriate,” the quantity of methamphetamine that “could reasonably have been manufactured” from pseudoephed-rine. Methamphetamine Anti-Proliferation Act § 3651 (emphasis added). The Commission’s determination is neither arbitrary and capricious nor otherwise unreasonable. See United States v. Martin, 438 F.3d 621, 635-37 (6th Cir.2006) (rejecting an identical challenge).

Finally, Appellants contend that the Commission based the ratio only on law enforcement data and thereby failed to follow Congress’s directive to base the ratio on “scientific, law enforcement, and other data the Sentencing Commission considered] appropriate.” Methamphetamine Anti-Proliferation Act § 3651. In United States v. Martin, a panel of this court employed “the rule of the last antecedent” to hold that the Congressional directive mandated that the Commission base the ratio on, at a minimum, “scientific and law enforcement” data.² Id at 630. Even if we assume, as did the panel in Martin, that the court may “delve into the Commission’s methodology as a general matter,” id. at 633, Appellants nevertheless fail to demonstrate that the Commission relied on law enforcement data to the exclusion of scientific data. Appellants attempt to show that the Commission utilized only law enforcement data by pointing to the Commission’s statements referencing the DEA report. But, as the Martin panel discussed, “DEA reports could contain ... both scientific data ... as well as law enforcement statistics.” Id. at 634. As in Martin, “[t]he record before us includes no testimony and no further documentation regarding the Commission’s method of selecting the new 50% conversion ratio,” and this record “do[es] not suffice to demonstrate that the Commission failed to base its ratio on both scientific and law enforcement data.” Id. at 634.

III

Because Appellants fail to demonstrate that the Commission deviated from the congressional mandate, we discern no error in the district court’s sentencing Appellants pursuant to the Drug Equivalency Tables. We affirm.

1 . Appellants McAlister and Dixon pleaded guilty to possession of chemicals and equipment used in methamphetamine manufacturing. Although Appellant Graham pleaded guilty only to possession of methamphetamine, the court imposed his sentence based on possession of both methamphetamine and pseudoephedrine, after converting the pseu-doephedrine to methamphetamine under the Guidelines.

2 . The panel held that the restrictive clause "the Sentencing Commission considers appropriate” modifies only "other” data and not "scientific” or "law enforcement” data. The panel did not address the fact that all three adjectival terms modify the same noun, "data,” so that one could conclude that the restrictive clause modifies the norm "data,” which is in turn distributed across the three adjectival terms.