JOSEPH HAVENS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5935 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 Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 5a-13a) is reported at 910 F.2d 703. /1/ JURISDICTION The judgment of the court of appeals was entered on August 6, 1990. The petition for a writ of certiorari was filed on October 9, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly based a Guidelines Sentence for attempted manufacture of methamphetamine on expert testimony as to the amount of methamphetamine that could have been produced from the chemicals in petitioner's possession. 2. Whether the district court's finding that petitioner was not a minor or minimal participant in the offense under Sentencing Guideline Section 3B1.2 was clearly erroneous. STATEMENT Petitioner pleaded guilty in the United States District Court for the District of New Mexico to one count of attempting to manufacture methamphetamine, in violation of 21 U.S.C. 841(a)(1) and 846. He was sentenced pursuant to the Sentencing Guidelines, as in effect at the time of the offense, to 57 months' imprisonment, to be followed by a five-year term of supervised release, and ordered to pay a $50 special assessment. Pet. App. 1a-4a. See generally United States Sentencing Comm'n, Guidelines Manual (1990). 1. The facts, which are not in dispute, are set forth in the Presentence Report (P.R.) and the sentencing proceeding transcript (Tr.). On July 25, 1988, Drug Enforcement Agency (DEA) agents observed a Spectrum Scientific company representative deliver chemicals to Paul Vigil (also known as James Allyson) at a motel in Albuquerque, New Mexico. Thereafter, Vigil met petitioner at City Self Storage in Albuquerque, where they placed the chemcials in a storage locker leased by petitioner. DEA agents detected an odor near the storage locker consistent with the manufacture of methamphetamine and, after observing a similar transaction between Vigil and petitioner on July 26, 1988, obtained a search warrant. On July 27, 1988, agents seized from the storage locker chemicals used to manfacture methamphetamine, several firearms and ammunition, and an explosive device. P.R. 2-3. 2. The Presentence Report stated that petitioner's sentence should be determined on a total combined offense level of 28 and a criminal history category of I, yielding a sentencing range of 78 to 97 months' imprisonment. The base offense level was derived from 26 points for the drug offense (U.S.S.G. App. C, amend. 125) plus 2 points for possession of a firearm in a drug offense (U.S.S.G. Section 2D1.1(b)(1)). The 26-point drug offense level rested on a determination by a state expert that the confiscated drugs could be used to produce 300 grams of methamphetamine, which the Sentencing Guidelines treated as the equivalent of 120 grams of heroin. See U.S.S.G. App. C, amend. 125. Although petitioner had no previous criminal convictions, the Presentence Report stated that a six-count drug indictment had been returned against him on April 20, 1988, in Los Lunas, New Mexico, and that the indictment had been dismissed because of the guilty plea in this case. The Presentence Report also stated that a charge of distributing methamphetamine on December 30, 1988, would be dismissed as part of the plea agreement in this case. P.R. 4-5. 3. The district court determined that petitioner's Guideline sentencing range was 51 to 63 months' imprisonment, based on an adjusted offense level of 24 and a criminal history category of I. Tr. 75. Upon review of the evidence, the court found, based on expert opinion, that between 300 and 689 grams of methamphetamine hydrochloride could have been produced from the chemicals found in petitioner's storage locker. Id. at 65-66. It stated that the difference between the two amounts would not affect the applicable base offense level of 26 or the sentence the court would impose under the Guidelines. Id. at 66. The court deducted two points for acceptance of responsibility (U.S.S.G. Section 3E1.1). Id. at 68. The district court rejected the government's argument that it should add two points to the adjusted offense level for the firearms found in the storage locker (U.S.S.G. Section 2D1.1(b)(1)), ruling that the guns were not located where petitioner could use them during the offense. Tr. 70-74. The court also rejected petitioner's argument that it should subtract points from petitioner's adjusted offense level because he was a minor or minimal participant in the offense (U.S.S.G. Section 3B1.2). Relying on United States v. Wright, 873 F.2d 437 (1st Cir. 1989), the court found that petitioner played neither an aggravating role under Sentencing Guideline Section 3B1.1 nor a mitigating role under Sentencing Guideline Section 3B1.2. The district court also declined to depart downward from the Guidelines on the ground that petitioner was not reasonably capable of producing the amount of drugs determined by the court. Tr. 80. 4. The court of appeals affirmed. Pet. App. 5a-13a. It held that the district court properly relied on an estimate of the ultimate quantity of illegal drugs producible from precursor drugs possessed by petitioner, when they are combined with proportionate amounts of the missing ingredients and laboratory equipment, to determine petitioner's sentence. Id. at 4a-5a. The court rejected petitioner's contention that his sentence should be based on only the trace amounts of methamphetamine found with the precursor chemicals, observing that petitioner pleaded guilty to attempting to manufacture methamphetamine, not to a completed offense, and thus the district court was required by the Sentencing Guidelines to estimate the amount he could have manufactured. Id. at 5a-6a. It also concluded that forming an estimate based on expert testimony did not violate due process. Id. at 6a-7a. Finally, the court of appeals determined that the district court's rejection of petitioner's claim that his offense level should have been reduced because he was a minor or minimal participant was not clearly erroneous. Id. at 7a-8a. /2/ ARGUMENT 1. Petitioner renews his contention (Pet. 10-21) that the district court improperly based his sentence on an estimate of the amount of methamphetamine hydrochloride that could be produced from the chemicals in his storage locker. He contends that the court should instead have based his sentence on the amount of methamphetamine residue found among the chemicals. The court of appeals correctly rejected that argument. The Sentencing Guidelines plainly contemplate that the sentence for an attempt to manufacture a controlled substance will be based on a reasoned estimate of the quantity of controlled substance that would have been manufactured if the attempt had been successful. Under Sentencing Guideline Section 2D1.4, "(i)f a defendant is convicted of a conspiracy or an attempt to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed." The Commentary to that Guideline states: Where 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. In making this determination, the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved. U.S.S.G. Section 2D1.4, comment. (n.2). /3/ The courts of appeals have consistently approved the use of an estimate, supported by a preponderance of the evidence, of drug quantity actually involved in a drug offense or that would have been involved in an offense if the object of an attempt or conspiracy had been completed. See, e.g., United States v. Upshaw, No. 89-10582 (9th Cir. Nov. 6, 1990) (methamphetamine); United States v. Valle-Sanchez, 912 F.2d 424 (10th Cir. 1990) (cocaine); United States v. Goff, 907 F.2d 1441 (4th Cir. 1990) (cocaine); United States v. Putney, 906 F.2d 477 (9th Cir. 1990) (methamphetamine); United States v. Ross, 905 F.2d 1050 (7th Cir. 1990) (cocaine); United States v. Evans, 891 F.2d 686 (8th Cir. 1989), cert. denied, 110 S.Ct. 2170 (1990) (methamphetamine); United States v. Gerante, 891 F.2d 364 (1st Cir. 1989) (cocaine); United States v. Garcia, 889 F.2d 1454 (5th Cir. 1989), cert. denied, 110 S.Ct. 1829 (1990) (cocaine); United States v. Gohagen, 886 F.2d 1041 (8th Cir. 1989) (cocaine). Compare United States v. Lawrence, 915 F.2d 402, 409 (8th Cir. 1990) (estimate based on "arbitrary assumption" rather than preponderance inadequate); see also United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990). The courts of appeals have specifically affirmed sentences based on district court findings as to the amount of methamphetamine that could be manufactured from chemicals seized by the government. United States v. Upshaw, supra; United States v. Putney, supra; United States v. Evans, supra. Petitioner's contention (Pet. 17) that his sentence was based on "speculation" in violation of the Due Process Clause also lacks merit. As we explained in our brief in opposition to certiorari in James v. United States, No. 89-7882, cert. denied, Oct. 29, 1990, /4/ in the sentencing context, due process requires "that a defendant be afforded an opportunity to ensure that the information considered at sentencing 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 a due process violation, a defendant must show that the sentencing court "relie(d) on materially false or unreliable information"). The Sentencing Guidelines permit consideration only of reliable information at sentencing. United States v. Upshaw, supra; U.S.S.G. Section 6A1.3. Disputes as to the accuracy of information relied on at sentencing under the Guidelines must be resolved by a preponderance of the evidence, a standard for sentencing issues that this Court upheld against a due process challenge in McMillan v. Pennsylvania, 477 U.S. 79, 91-93 (1986). See Ross, 905 F.2d at 1054; United States v. Frederick, 897 F.2d 490, 492 (10th Cir. 1990); United States v. Candito, 892 F.2d 182, 186 (2d Cir. 1989). /5/ Here, petitioner had ample opportunity to challenge the accuracy of the information relied on by the district court as to the amount of methamphetamine that could have been produced from the chemicals in his storage locker. The district court's decision to adopt the findings of the state and federal expert witnesses and reject petitioner's contentions was based on "informed discretion." Sciacca, 879 F.2d at 416. Petitioner's due process rights at sentencing were fully protected. 2. Petitioner's contention (Pet. 21-24) that his offense level should have been reduced because he was a minor or minimal participant in the offense is also infirm. The question whether a defendant is a minor or minimal participant is a matter of fact subject to review under the "clearly erroneous" standard. See, e.g., United States v. Donaldson, 915 F.2d 612, 615 (10th Cir. 1990); United States v. Hagan, 913 F.2d 1278, 1283 (7th Cir. 1990); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989). The court of appeals examined and correctly affirmed the district court's determination that petitioner was not a minor or minimal participant. Pet. App. 11a-12a. The issue does not warrant further review by this Court. 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 had in his possession all the chemicals, except a readily obtainable reducing agent, necessary to manufacture a substantial quantity of methamphetamine. Tr. 40-42, 59. He also had in his possession a partially full reagent bottle and other bottles containing traces of methamphetamine in acetone, from which the court could conclude that he had previously been involved in the manufacture of methamphetamine. Id. at 30-31. Finally, other similar charges against petitioner had been dismissed on the strength of this case. The district court's conclusion that petitioner was not a minor or minimal participant was not clearly erroneous. Cf. United States v. Mueller, 902 F.2d 336, 345-346 (5th Cir. 1990). /6/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General KAREN SKRIVSETH Attorney DECEMBER 1990 /1/ The pages in petitioner's appendix are unnumbered. We cite the pages as if they were numbered in sequence. /2/ The court of appeals mistakenly stated that the base offense level for manufacturing 689 grams of methamphetamine is 28, and for manufacturing 300 grams of methamphetamine is 26. Pet. App. 8a-9a. Those are the levels that apply in the current Guidelines. See U.S.S.G. Section 2D1.1(c)(8) and (C)(9) (1990). At the time of the offense, the base offense level for manufacturing either 300 or 689 grams of methamphetamine was 26. U.S.S.G. App. C, amend. 125. /3/ The Commentary explains that this principle also applies to completed drug offenses where the amount of drug seized "does not reflect the scale of the offense." See U.S.S.G. Section 2D1.1 comment. (n.12). /4/ We have provided a copy of the brief in opposition to counsel for petitioner. /5/ A district court has held that the Sentencing Guidelines are unconstitutional because they do not permit the sentencing court to adjust a Guidelines Sentence according to the degree of reliability of the information on which the court based its estimate of the amount of drugs that would have been involved in a drug offense if it were completed. United States v. Davis, 715 F. Supp. 1473 (C.D. Calif. 1989). The government's appeal in Davis is pending in the Ninth Circuit (Case Nos. 89-50359, 89-50360, 89-50361, and 89-50364); the Ninth Circuit, however, has indicated in other cases that Davis was wrongly decided in light of McMillan v. Pennsylvania, supra. See United States v. Rafferty, 911 F.2d 227, 231 (9th Cir. 1990); United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir. 1990). /6/ To the extent that petitioner contends that the district court should have departed from the Guidelines rather than that the court applied the Guidelines erroneously, the decision is not appealable. Pet. App. 13a. See 18 U.S.C. 3742(a); United States v. Davis, 900 F.2d 1524, 1529-1530 (10th Cir. 1990).