HAROLD KENNETH JAMES, PETITIONER V. UNITED STATES OF AMERICA No. 89-7882 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A19-A23) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 2, 1990. The petition for a writ of certiorari was filed on June 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court violated the Due Process Clause when in sentencing petitioner the court credited testimony by a Drug Enforcement Administration (DEA) agent to determine the amount of methamphetamine that could have been produced from the chemicals possessed by petitioner. 2. Whether the court of appeals violated the Due Process Clause when, in upholding the district court's determination concerning the amount of methamphetamine that could have been produced, the court of appeals mentioned a DEA chemist's report that was not mentioned at petitioner's sentencing hearing. 3. Whether the United States Sentencing Commission's Sentencing Guidelines required the district court to take into account the purity of the methamphetamine that could have been produced from the chemicals possessed by petitioner. STATEMENT Petitioner pleaded guilty in the United States District Court for the Southern District of Texas to conspiring to manufacture methamphetamine, in violation of 21 U.S.C. 841(a)(1) and 846. He was sentenced to 110 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. 1. In July 1988, Drug Enforcement Administration (DEA) agents received information that Allen Blaha was attempting to acquire chemicals and supplies for the purpose of setting up a methamphetamine laboratory. Pet. App. A20; Gov't C.A. Br. 5. The agents placed Blaha under surveillance and watched him purchase chemicals and laboratory equipment from a chemical company in Houston, Texas. Pet. App. A20. On August 1, 1988, the agents saw Blaha hand over the chemicals and the equipment to petitioner, who put them in his car and drove away. Ibid. The agents stopped petitioner's car and searched it with his consent. Ibid. They found laboratory equipment and several chemicals, along with a typewritten formula for combining the chemicals to create methamphetamine. Ibid. Petitioner later admitted that he had been on his way to deliver the chemicals and equipment to a man in Dallas, Texas. Ibid. On August 31, 1988, petitioner waived indictment and pleaded guilty to a criminal information charging him with one count of conspiracy to manufacture methamphetamine. Pet. 5; Pet. App. A20. The presentence report stated that DEA Agent Ed Collins estimated that two and one-half pounds of methamphetamine could be manufactured from the chemicals found in petitioner's car. Pet. App. A21. Petitioner objected to this calculation, claiming that it was too high. Ibid. In response to petitioner's objection, the probation office issued a supplement to the presentence report, which stated that DEA chemist John D. Wittwer, Jr., had reported that "in his professional opinion * * * approximately two and a half (2 1/2) pounds of methamphetamine can be manufactured from the amount of chemicals seized." Pet. 6; Pet. App. A21; Gov't C.A. Br. 6-7. At the sentencing hearing, petitioner renewed his objection to the presentence report's determination of the quantity of methamphetamine that could have been produced from the chemicals he possessed, and petitioner's counsel cross-examined Agent Collins about how he had arrived at his estimate. Pet. 6-8; Pet. App. A21. At the conclusion of the hearing, the district court overruled petitioner's objection. The court found that it was "reasonable to believe that at least two and a half pounds of methamphetamine could be manufactured with this amount of precursor chemicals." Pet. 8. 2. In the court of appeals, petitioner challenged the district court's finding concerning the amount of methamphetamine that the chemicals seized from his car would have produced. Pet. App. A20. Petitioner claimed that the DEA estimate on which that finding was based was unreliable because the estimate did not take into account the skill of the individual who was to have manufactured the methamphetamine. Id. at A22. The court of appeals rejected this claim, noting that the DEA chemist had stated that DEA's estimate did account for the skill of the would-be manufacturer. Ibid. The court of appeals concluded that the district court's decision to credit the chemist's statement was not clearly erroneous. Ibid. Petitioner also claimed that the district court's failure to determine the purity of the methamphetamine that the chemicals would have produced resulted in a misapplication of the Sentencing Guidelines and a violation of his due process rights. Id. at A21-A22. The court of appeals rejected both of these claims. Id. at A22-A23. ARGUMENT 1. Petitioner's principal contention (Pet. 11-16) concerns the district court's finding that two and one-half pounds of methamphetamine could have been manufactured from the chemicals he possessed. Petitioner contends that this finding was based on Agent Collins' "unsupported assumption," and that by sentencing petitioner on the basis of that finding, the court misapplied the Sentencing Guidelines and violated his due process rights. Petitioner's contention does not present an issue warranting review by this Court. Petitioner concedes (Pet. 14-16) that the district court's finding concerning the amount of methamphetamine was a factual determination and therefore properly examined by the court of appeals under a "clearly erroneous" standard. United States v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989); see 18 U.S.C. 3742(e) ("The court of appeals * * * shall accept the findings of fact of the district court unless they are clearly erroneous * * *."). Applying that standard, the court of appeals here affirmed the trial court's determination. Pet. App. A22. Thus, petitioner asks this Court to grant review of a factual determination in which both courts below have concurred. Such a determination does not merit this Court's attention. See United States v. Doe, 465 U.S. 605, 614 (1984); United States v. Reliable Transfer Co., 421 U.S. 397, 401 n.2 (1975); Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967). In any event, petitioner's challenge to the factual determination of the courts below lacks merit because he fails to show that it "ha(d) no support in the record." Doe, 465 U.S. at 614. Petitioner does not deny that the district court's finding was supported by the DEA chemist's report. Nor does petitioner question the reliability of that report here. Instead, petitioner asserts that the district court should have discounted DEA Agent Collins' testimony at the sentencing hearing because Collins could not state how much of an intermediate chemical could have been produced from the precursor chemicals petitioner possessed or what the purity of the ultimate product would have been. Pet. 12-14. These attacks on the DEA agent's credibility were properly rejected by the court of appeals. See United States v. Sarasti, 869 F.2d 805, 807 (5th Cir. 1989) (court of appeals will not disturb sentencing judge's finding based on credibility determination). In sum, petitioner cannot make the "very obvious and exceptional showing of error" required to warrant this Court's disturbing the factual determinations of the courts below. Berenyi, 385 U.S. at 635. Petitioner's inability to show that his sentence was based on unsubstantiated information also disposes of his due process challenge to the district court's determination. In this context, due process requires "that a defendant be afforded an opportunity to ensure that the information considered at a sentencing hearing is accurate and reliable." United States v. Sciacca, 879 F.2d 415, 416 (8th Cir. 1989); see United States v. Columbus, 881 F.2d 785, 787 (9th Cir. 1989) (to establish violation of due process rights, defendant must show that sentencing court "relie(d) on materially false or unreliable information"). Petitioner had an ample opportunity to challenge the information in the presentence report concerning the amount of methamphetamine and availed himself of this opportunity. Petitioner made written and oral objections to the report and cross-examined Agent Collins about the estimate in the report at the sentencing hearing. Pet. 6-8. Thus, the district court's decision to reject petitioner's objections and accept the report's estimate of the quantity of methamphetamine that could have been produced was based on "informed discretion." Sciacca, 879 F.2d at 416. In this case due process required no more. /1/ 2. Likewise without merit is petitioner's claim (Pet. 16-17) that, because the DEA chemist's report was not mentioned at the sentencing hearing, the court of appeals violated his due process rights by relying on that report. Petitioner does not deny that at the time of the sentencing hearing he was aware of the chemist's report, which was included in a supplement to the presentence report, and could have challenged it. See Pet. 8. /2/ Nor does he dispute the reliability of the chemist's report here. Under these circumstances, the mere fact that the court of appeals' decision was based partly on information not mentioned at the sentencing hearing did not constitute a due process violation. 3. Finally, the court of appeals was correct to hold that the Sentencing Guidelines did not require the district court to consider the purity of the drug in determining a defendant's sentence. Guideline Section 2D1.1 n.* states, "Unless otherwise specified, the weight of a controlled substance * * * refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." See United States v. Brett, 872 F.2d 1365, 1372 (8th Cir.), cert. denied, 110 S. Ct. 322 (1989) (Sentencing Guidelines do not require sentencing court to consider purity). Accord United States v. Rojas, 868 F.2d 1409, 1409-1410 (5th Cir. 1989). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General NINA GOODMAN Attorney OCTOBER 1990 /1/ Petitioner also asserts (Pet. 16) that the district court violated Federal Rule of Criminal Procedure 32(a)(1) because the court did not ask petitioner and his counsel at the sentencing hearing whether they had been given an opportunity to read and discuss the supplement to the presentence report. Petitioner failed to raise this claim in the courts below. Accordingly, under settled principles governing this Court's exercise of its certiorari jurisdiction, petitioner may not litigate the issue for the first time here. See Delta Airlines v. August, 450 U.S. 346, 362 (1981); United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977); Tacon v. Arizona, 410 U.S. 351, 352 (1973); Addickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970); Lawn v. United States, 355 U.S. 339, 362 n.16 (1958). /2/ Petitioner's reliance (Pet. 16) on United States v. Otero, 868 F.2d 1412 (5th Cir. 1989), is therefore misplaced. In Otero, the court of appeals held that the district court improperly made an upward departure from the sentence mandated by the Sentencing Guidelines because at the sentencing hearing "the parties did not have an opportunity to address the issue" of an adjustment. Id. at 1415. Moreover, this holding was based on Fed. R. Crim. P. 32(a)(1), not the Due Process Clause. Ibid. As indicated above, note 1 supra, petitioner did not advance his Rule 32 argument below, and so the argument should not be considered by this Court.