Opinion
No. 02-40051-01-SAC
March 5, 2003
MEMORANDUM AND ORDER
The defendant pleaded guilty to a two-count information charging him with the manufacture of methamphetamine and with conspiracy to manufacture methamphetamine. As a term of this plea agreement, the parties agreed "that the available evidence would establish that the total amount of ephedrine/pseudoephedrine attributable to the defendant for purposes of offense/relevant conduct is 45.08 grams, which equates to 450 kilograms of marijuana, which corresponding (sic) to base offense level 28, pursuant to U.S.S.G. § 2D1.1(c)(6) [November 1, 2001 edition of Guidelines Manual]."
The Presentence Report ("PSR") recommends holding the defendant accountable for an additional 1,158.76 grams of methamphetamine (20 cooks at 56.7 grams per cook) which equates to 2,317.52 kilograms of marijuana for a total of 2,676.6 kilograms of marijuana. This additional relevant conduct results in a base offense level of 32. From this, the PSR deducts two levels for the safety valve adjustment and three additional levels for acceptance of responsibility. Using a total offense level of 27 and a criminal history category of one, the PSR recommends an offense level of 70 to 87 months. The addendum to the PSR addresses three unresolved objections, and the defendant has filed a sentencing memorandum in support of them.
OBJECTION NO. 1: The defendant objects to the statement appearing in ¶ 17 that "658 grams of methamphetamine could have been produced" from the 44 lithium batteries found among the defendant's belongings. The defendant objects that lithium is not a listed chemical nor a precursor to methamphetamine.
Ruling: The defendant's objection goes only to the legal relevance of this statement and not to its factual accuracy as taken from a KBI laboratory report. Though correct that the Sentencing Guidelines do not list lithium as a precursor chemical, the defendant's objection is not well taken as the offense level determinations in the PSR do not rely on the theoretical production of methamphetamine based on the amount of precursor chemicals. Because the amount of lithium batteries was not used to calculate the defendant's offense level, the defendant's objection is overruled. The court, however, believes the amount of lithium batteries would have relevance in corroborating other evidence about the defendant's methamphetamine production.
OBJECTIONS NO. 2 and 3: Paragraph 21 of the PSR summarizes Ms. Darnall's five-page written statement given to Captain Randy Carreno of the Jefferson County Sheriff's Department on January 11, 2002. In the statement, Ms. Darnall said that there was a methamphetamine laboratory in the bedroom she and Logan shared and that Logan had cooked methamphetamine twenty or more times since March 2001. Paragraph 22 of the PSR summarizes Logan's statement to Agent Brandau on January 11, 2002. Logan admitted to manufacturing methamphetamine and to having manufactured approximately two ounces of methamphetamine every other day. Logan also said the robbers had taken approximately $500 which was proceeds from the sale of methamphetamine. Relying on the more conservative statement from Ms. Darnall as to production frequency of approximately twice a month for ten months, and the only evidence as to production yield, that is Mr. Logan's statement of two ounces, the PSR arrives at an additional 1,158.76 grams of methamphetamine. Without evidence to determine whether this yield was actual methamphetamine or a methamphetamine mixture, the PSR uses the more conservative approach applicable to methamphetamine mixture.
The defendant objects to ¶ 22 and denies telling officers that he manufactured "two ounces of methamphetamine every other day" and that the assailants took money from him which were proceeds of methamphetamine sales. The defendant also objects to ¶¶ 28, 29 and 37 which take into account his statement and that of Ms. Darnall in calculating relevant conduct. The defendant argues the officers did not seize any evidence that would corroborate manufacturing such quantities of methamphetamine. In his sentencing memorandum, the defendant points to the government's burden of proving relevant conduct and to the court's inability to rely on the PSR when the defendant objects to its accuracy. The defendant contends that in reaching their agreement on the amount of pseudoephedrine attributable to the defendant as relevant conduct "the parties considered the statements of Mr. Logan and Ms. Darnall, and their reliability." (Dk. 97, p. 2). At the sentencing hearing, counsel for the defendant and the government reiterated that they reached their stipulation on relevant conduct after considering the statements of both Ms. Darnall and Mr. Logan.
Ruling: Under § 2D1.1, "[t]he Government has the burden of proving the quantity of drugs by a preponderance of the evidence." United States v. Gigley, 213 F.3d 509, 518 (10th Cir. 2000), and the "evidence relied upon must possess a minimum indicia of reliability." United States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th Cir. 1998). The Sentencing Guidelines "permit a court to consider all `relevant conduct' when determining the base offense level for someone convicted of an offense." United States v. Asch, 207 F.3d 1238, 1243 (10th Cir. 2000) (citations omitted). Under U.S.S.G. § 1B1.3(a)(2), offenses which are groupable under U.S.S.G. § 3D1.2(d) are part of a defendant's relevant conduct if they are part of the same course of conduct or common scheme or plan as the count of conviction. United States v. Moore, 130 F.3d 1414, 1416 (10th Cir. 1997).
The Tenth Circuit has held "that the fact that a plea agreement has been entered into between the government and a defendant cannot alone prohibit the government from bringing relevant information to the attention of the trial judge at the time of sentencing." United States v. Jimenez, 928 F.2d 356, 363 (10th Cir.) (citation omitted), cert. denied, 502 U.S. 854 (1991); see United States v. Prince, 204 F.3d 1021, 1023 (10th Cir.), cert. denied, 529 U.S. 1121 (2000). "Certainly the government is entitled, perhaps even obligated as an officer of the court, to correct factual and legal inaccuracies for the court." United States v. Byre, 146 F.3d 1207, 1211 (10th Cir. 1998) (citation omitted). "[I]nforming the court of pertinent information cannot be considered a breach of plea agreement." United States v. Svacina, 137 F.3d 1179, 1185 (10th Cir. 1998) (citation omitted). "`Disclosure of information as to the nature of the offense and each defendant's role is proper and within the Government's duty to provide, despite a promise that the Government would make no recommendation as to sentence.'" United States v. Byre, 146 F.3d at 1211 (quoting United States v. Stemm, 847 F.2d 636, 639 (10th Cir. 1988)). "It is not a reasonable interpretation of the plea agreement to `require the judge to sentence in the dark.'" United States v. Prince, 204 F.3d at 1023 (quoting Jimenez, 928 F.2d at 363).
In the instant case, the parties did agree the available evidence would establish a certain quantity "of ephedrine/pseudoephedrine attributable to the defendant for purposes of offense/relevant conduct." The parties, however, also agreed that the United States would provide to the court "all information it deems relevant to determining the appropriate sentence in this case" including information on the entirety of the defendant's criminal activities. The government also reserved the right to correct any misstatements or inaccuracies.
Ms. Darnall's handwritten statement of January 11, 2002, was admitted as an exhibit at the suppression hearing. Captain Carreno testified to the voluntary circumstances under which this statement was made. The statement goes into some detail about the items comprising the methamphetamine laboratory that officers would find in the bedroom and the location of those items. In the statement, Ms. Darnall expresses her feelings for the defendant Logan and characterizes him as "a very good man" who had helped her and her son, had "a very good heart," and had never been seen doing anything intentional to hurt someone. Ms. Darnall also wrote that Logan never sold his product but that he had "cooked around twenty or more times since about March 2001." (Suppression Hrg., Govt's Ex. 3). Ms. Darnall also confesses in her statement to having used methamphetamine, to having possessed the methamphetamine located in the bedroom, and to having assisted Logan in manufacturing the methamphetamine by purchasing necessary items and by cleaning up after the cooks. Rather than appearing as a statement meant to minimize her own criminal conduct or to exaggerate Logan's conduct, Ms. Darnall's statement appears intended to place Logan and herself in the best possible light while confessing their involvement in the manufacture of methamphetamine. According to Agent Brandau's testimony, Ms. Darnall spoke with him on other occasions and admitted to using methamphetamine and to assisting Logan in making it. In short, the court finds Ms. Darnall's estimate as to the number of manufacturing events to be reliable and conservative. This estimate does not seem exaggerated or excessive considering the amount of pseudoephedrine pills that the defendants were attempting to purchase in January and the number of lithium batteries recovered from the defendant's residence. At the sentencing hearing, counsel did not refer to any evidence or offer any specific reasons for rejecting Ms. Darnall's statement in this regard as unreliable. The statement of the defendant Logan that he manufactured at a more frequent rate is not necessarily inconsistent with Ms. Darnall's statement that he manufactured at least twenty times, but more importantly, Logan's statement does not show Ms. Darnall's statement to be unreliable.
As to the yield from these methamphetamine cooks, the PSR relies on Logan's statement made to Agent Brandau on January 11, 2002. This statement was not introduced at the suppression hearing. While he testified about some of the chemicals involved in the manufacture of methamphetamine that were found during their search of the residence, Agent Brandau did not testify to what Logan had said when asked about these chemicals and the methamphetamine laboratory found in the house. In short, the court has no evidence of record on which to estimate the amount of methamphetamine produced by Logan in those twenty cooks, as the government at the sentencing hearing chose to introduce no evidence to substantiate or corroborate the relevant conduct calculations appearing in the PSR. Because the defendant objects to the PSR and denies making the statement about two-ounce yields that appears in the PSR, Tenth Circuit authority precludes this court from relying on the PSR in making any finding about relevant conduct. Thus, in this case, the court shall sustain the defendant's objections.
As a result of these rulings, the defendant's base offense level is 28 using the parties' stipulation of relevant conduct, less two levels for the safety valve adjustment and another three levels for acceptance of responsibility. The defendant's total offense level is 23 and the criminal history category is one, giving him a sentencing guideline range of 46 to 57 months.
IT IS THEREFORE ORDERED that the defendant's first objection to the PSR is overruled, and his second and third objections are sustained.
IT IS FURTHER ORDERED that the court will sentence the defendant on March 25, 2003, at 3:30 p.m.