Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted July 12, 1999.
Appeal from the United States District Court for the Central District of California, James M. Ideman, District Judge, Presiding.
Before BRUNETTI, RYMER, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
William Mangram appeals his sentence for conspiracy to possess piperidine with knowledge that it would be used to manufacture phencyclidine (PCP) in violation of 21 U.S.C. §§ 841(d)(2), 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I
The district court did not err in counting Mangram's possession of piperidine precursors as "relevant conduct." Relevant conduct includes acts that occur in preparation for the offense, see U.S .S.G. § 1B1.3(a)(1)(A), and there is no dispute that Mangram was using and trying to use pyridine to make piperidine (knowing that the piperidine would be used to manufacture PCP). Possessing pyridine for this purpose is criminal behavior in violation of 21 U.S.C. §§ 841(d)(2), 846 since it was part of an attempt to possess piperidine for use in making PCP. Uncharged criminal behavior is "relevant conduct" that may be used to calculate the offense level. See United States v. Duque, 62 F.3d 1146, 1152 (9th Cir.1995). Therefore, since Mangram possessed the precursors to make piperidine "during the commission of" and "in preparation for" conspiring to possess piperidine knowing it would be used to make PCP, the district court was free to consider such conduct in calculating Mangram's § 2D1.11 base offense level.
Mangram's reliance on the difference between the application notes to § 2D1.11 and § 2D1.1 is misplaced, because the court's authority to include relevant conduct is governed by §§ 1B1.2 and 1B1.3. Nor does it matter that § 2D1.1 is inapplicable, because Mangram's sentence was based squarely on § 2D1.11. Finally, the fact that Congress has prescribed different penalties for possession of listed chemicals, see 21 U.S.C. § 841(d), and for more advanced efforts to traffic in narcotics, see 21 U.S.C. § 841(a), does not manifest its intent that possession of precursors for the purpose of producing and possessing listed chemicals (knowing that they will be used to manufacture a controlled substance) should go unpunished altogether.
II
Mangram contends that the district court erred when it refused his request for a downward departure based on aberrant behavior. The district court declined to exercise its discretion in favor of a downward departure, finding that there was no merit to Mangram's request. Since the district court did not indicate that it lacked authority to depart downward, this court has no authority to review its refusal to do so. See United States v. Govan, 152 F.3d 1088, 1095 (9th Cir.1998).
AFFIRMED.