United States v. Leyland ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
August 14, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 05-4212
v. (D.C. No. 2:04-CR-00001-PGC)
(D. Utah)
TY K . LEY LA N D ,
Defendant - Appellant.
OR DER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
Defendant-Appellant Ty Leyland appeals his 151-month sentence imposed
based on his convictions for various counts surrounding the operation of a
m etham phetamine laboratory. Having jurisdiction under 28 U.S.C. § 1291, we
AFFIRM .
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
BACKGROUND
Following an investigation into iodine purchases in Salt Lake City, Utah,
officers obtained a warrant to search M r. Leyland’s home. Their search
uncovered various items associated with a methamphetamine laboratory,
including 15 grams of pseudoephedrine, 110 grams of red phosphorus, and 113.4
grams of iodine. M r. Leyland was charged in a four-count indictment with
attempted manufacture of methamphetamine (count 1) and possession of certain
precursor chemicals— pseudoephedrine, phosphorus, and iodine— with the intent
to manufacture methamphetamine (counts 2-4).
At trial, officer Tyler Boelter, an expert in clandestine methamphetamine
labs, testified to the conversion of the precursor chemicals into
methamphetamine. Boelter specifically stated that “[r]ed phosphorus w ill
actually convert on a one-to-one ratio to methamphetamine, so for 110 grams of
red phosphorus you can actually produce 110 grams of actual
methamphetamine.” 1
Following M r. Leyland’s conviction by a jury on all counts, a presentence
report (“PSR”) was prepared. W here, as here, there is no actual drug seizure, the
Sentencing Guidelines allow the court to “approximate the quantity of the
controlled substance.” See United States Sentencing Guidelines (“U .S.S.G.”)
§ 2D1.1 cmt. n.12. Based on a 1:1 conversion ratio between red phosphorus and
1
“Actual” methamphetamine refers to 100% pure methamphetamine.
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actual methamphetamine, the PSR stated that the 110 grams of red phosphorus
recovered during the search equated 110 grams of actual methamphetamine. 2 The
PSR thus recommended a base offense level of 32. U.S.S.G. § 2D1.1(c)(4) (level
32 if the offense involved “at least 50 G but less than 150 G of M ethamphetamine
(actual)”). 3 Combined with an additional 2-level enhancement for transportation
of a hazardous waste and a criminal history score of zero, the PSR calculated M r.
Leyland’s sentencing range to be 151 to 188 months.
M r. Leyland raised several objections to the PSR, including an objection
“as a factual and legal matter” to the conversion factors used. Specifically, M r.
Leyland argued that the conversion rates were not found in the Guidelines and
thus should not have been used in the offense level computation. The response to
this objection was that “the conversion is determined by accepted practices in the
District of Utah and determined by the testimony in previous cases.”
2
The PSR also stated that the 15 grams of pseudoephedrine converted at a
2:1 ratio to 7.5 grams of actual methamphetamine, and that the 113.4 grams of
iodine converted at a 3:1 ratio to 34.4 grams of actual methamphetamine. The red
phosphorus amount was used in the computation of M r. Leyland’s base offense
level pursuant to § 2D 1.11 of the guidelines. See U.S.S.G. § 2D1.11 cmt. n.4(A )
(“[I]f the offense involves tw o or more chemicals, use the quantity of the single
chemical that results in the greatest offense level.”)
3
Generally, the guidelines range for possession of certain precursor
chemicals is determined pursuant to § 2D 1.11, which provides for base offense
levels based on the amount of the precursor chemicals alone. However, § 2D1.1,
which provides for base offense levels based on the amount of narcotics involved,
is applied when the offense in question is attempted manufacture and that section
yields a higher offense level. U.S.S.G. § 2D1.11(c)(1).
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At sentencing, the district court found that the conversion rate and thus the
quantity of drugs involved had been established by a preponderance of the
evidence. Considering the Guidelines as advisory, and considering all of the
factors articulated in 18 U.S.C. § 3553(a), the court sentenced M r. Leyland to 151
months, “grouped” for counts 1, 2, 3, and 4.
D ISC USSIO N
I.
M r. Leyland’s first argument is that the district court erred when it relied
on Officer Boelter’s trial testimony regarding the conversion ratio between red
phosphorus and methamphetamine to calculate the drug quantities that formed the
basis for M r. Leyland’s sentencing range. M r. Leyland’s specific objection is that
Officer Boelter is not sufficiently qualified to testify as to the conversion ratio;
“Officer Boelter is an expert in clandestine methamphetamine laboratories; but a
chemist he is not.” See United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir.
2005) (“W hen the actual drugs underlying a drug quantity determination are not
seized, the trial court may rely upon an estimate to establish the defendant’s
guideline offense level so long as the information relied upon has some basis of
support in the facts of the particular case and bears sufficient indicia of
reliability.”) (quotations omitted) (emphasis added). 4
4
M r. Leyland contends that the district court should have instead calculated
drug quantities using the marijuana equivalency table contained in the sentencing
(continued...)
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As a threshold matter, the government argues that M r. Leyland did not
preserve his objection to the court’s method of determining drug quantity below,
and thus we should review this issue only for plain error. See United States v.
Tisdale, 248 F.3d 964, 975 (10th Cir. 2001) (noting that where a party “fails to
lodge a specific objection with the district court to its interpretation or application
of the sentencing guidelines,” we review only for plain error). M r. Leyland
counters that, although his objection was “not the model of specificity,” he
sufficiently preserved the issue by contending that the conversion rate and
conclusion as to quantity were, as a factual and legal matter, incorrect. Having
reviewed the proceedings below, we agree with the government that plain error
review is appropriate.
No objection was raised when Officer Boelter testified at trial to the
conversion ratio. However, in response to the PSR’s statement that the 110 grams
of red phosphorus converted to 110 grams of methamphetamine M r. Leyland
objected
as a factual and legal m atter to the inclusion in the PSR . . . of the
“conversion factors” to methamphetamine (actual) of 50% for
pseudoephedrine, 100% for phosphorus and 33% for Iodine. These
conversion rates are not found in the Federal Sentencing guidelines and
therefore should not be used in the computations of Base Guidelines
under them. Further, each of these conversion rates, as used in the PSR
4
(...continued)
guidelines. Such a calculation, M r. Leyland claims, would have led to an
advisory guidelines range of 78-97 months, rather than the 151-188 months
determined by the district court.
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herein, is clearly a fact, which were [sic] not admitted by the defendant
in a guilty plea or a guilty verdict by a jury. To be used by the C ourt
for sentencing under the guidelines, the conversion rates must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt.
The Court’s inclusion of the alleged weights, amounts and/or
quantities of the pseudoephedrine, phosphorus and iodine an/or [sic] the
conversion rates in the PSR or for purposes of application of the
Federal Sentencing Guidelines w ould violate the defendant’s rights
under the Sixth Amendment of the United States Constitution.
The defendant agrees with the PSR that “Pursuant to U.S.S.G.
Section 2D1.11 Note A, “to calculate the base level in an offense that
involves two or more chemicals, use the quantity of the single chemical
that results in the greatest level, regardless of w hether the chemicals are
set forth in different tables or in different categories.
The defendant, however, does object to the use of . . . Section
2D1.1(3)(c)(4) to provide the base offense level in this case. The
defendant has heretofore asserted that because the jury in this case did
not find beyond a reasonable doubt the weight, amount and/or quantity
of the List I and List [sic] Chemicals that the defendant w as found
guilty of possessing in Counts Two, Three and Four, and the jury did
not find beyond a reasonable doubt the conversion factors for those
chemicals all as required by the Sixth Amendment of the Constitution
of the United States, as argued above, that the weight, amount and/or
quantity of those chemicals may not be used by the Court in computing
the offense guidelines.
(Emphasis added.)
It is not clear from this argument whether M r. Leyland’s objection related
only to judge fact-finding (a claim not at issue here), or whether M r. Leyland was
also raising an objection to the methodology and evidence used to calculate the
quantities (i.e., reliance on Officer Boelter’s testimony for the conversion ratio;
the claim that is at issue here). However, at sentencing, M r. Leyland clarified any
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ambiguity and made plain that he objected only to the court, rather than the jury,
finding the drug quantities:
THE COURT: It looks to me like the main objection is a question of
converting pseudoephedrine into methamphetamine. 5 And let me ask,
it is the government’s burden to show some kind of a conversion factor
appropriate conversion and so forth. How is – how is the government
planning to proceed on that issue?
M S. TAYLOR [counsel for the government]: W ell, Your Honor, that
w as the evidence that was introduced at trial from the officer who
testified in this matter. And all of the numbers that are provided in the
presentence report are the numbers that he testified to on the stand. M y
understanding from the memorandum submitted by defense counsel was
that not necessarily that he had objected to those numbers being used,
but that he objected on the grounds that those – those numbers were not
found by a jury. And quite frankly, I don’t think under Booker 6 and
under the sentencing guidelines the w ay it is now structured, I don’t
think that the jury needs to make a finding of how much
methamphetamine he actually intended to manufacture.
THE COURT: It has been a while since we have done this case. Did
the officer testify that you could convert 110 grams of phosphorus into
a [sic] 110 grams of actual methamphetamine?
M S. TAYLOR: He did.
THE COURT: A ll right. Let m e hear from [defense counsel]. W ouldn’t
that be enough?
M R. BOW N [counsel for defendant]: W ell, Your Honor, I don’t recall
that as being raised at the time of trial. If it has, certainly I stand
corrected. How ever, we have objected both as a factual and a legal
matter to the inclusion of the weights, amounts, quantities of these
5
The parties agree that the district court misspoke in referring to
pseudoephedrine instead of red phosphorus.
6
United States v. Booker, 543 U.S. 220 (2005).
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particular drugs. Because under the Blakely, 7 Booker, Fen Fen [sic], 8
Lynch 9 decisions, those must be actually found and returned by a jury
before they can be considered as a –
Court: That is not right.
(Emphases and footnotes added.) Further, after defense counsel made arguments
concerning whether the jury (rather than the judge) had to make findings as to
weights and quantities, the district court clarified M r. Leyland’s objection:
THE COURT: All right. And that is – your objections are on the
drug quantity and the gun and the transporting of hazardous waste,
that is the lack of a jury finding on each of those three?
M R. BOW N: Yes. Those are my objections, yes, they are . . . .
These colloquies make clear that M r. Leyland’s argument about the “factual
and legal” error regarding the conversion rates went to the issue of jury fact-
finding, not to the actual facts found or the way the Guidelines were applied.
W hile objections below need not be “model[s] of specificity,” counsel must still
“sufficiently raise[] the issue” in order to preserve it for appeal. Tisdale, 248
F.3d at 976. W e therefore review the claim that the court erred in relying on
Officer Boelter’s testimony to establish the conversion ratio and thus the drug
7
Blakely v. W ashington, 542 U.S. 296 (2004).
8
United States v. Fanfan was consolidated with United States v. Booker.
See Booker, 543 U.S. at 220.
9
United States v. Lynch, 397 F.3d 1270 (10th Cir. 2005).
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quantities for plain error. 10 Under this standard of review , “before an appellate
court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is
‘plain,’ and (3) that ‘affects substantial rights.’” Johnson v. United States, 520
U.S. 461, 466-67 (1997) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)) (alteration omitted). “If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only if (4) the error
“[]seriously affects the fairness, integrity, or public reputation of judicial
proceedings.[]” Id. (quoting Olano, 507 U.S. at 732) (alteration omitted). 11
10
Alternatively, even assuming M r. Leyland’s objection to the PSR did
raise a proper objection based the district court’s reliance on Officer Boelter’s
testimony to establish the conversion ratio, such an objection was withdrawn at
sentencing. In response to the court’s question about what M r. Leyland’s
objections to the drug quantities were, counsel made it clear that he was
contending only that there was a problem w ith the jury not having found the
quantities. W e review withdrawn objections, as well as those never made, for
plain error. See Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1101 n.7
(10th Cir. 2005).
11
The government argues that the issue of the district court’s reliance on
Officer B oetler’s testimony is an issue of fact, and thus no plain error occurred.
See United States v. Svacina, 137 F.3d 1179, 1187 (10th Cir. 1998) (“[F]actual
disputes not brought to the attention of the court do not rise to the level of plain
error.”). M r. Leyland, on the other hand, characterizes this issue as a question of
law. Specifically, he argues that a witness who is not proffered as a chemical
expert and who only briefly mentioned (with no explanation) that the conversion
ratio was 1:1 does not, as a matter of law, provide the “sufficient indicia of
reliability” necessary to allow the district court to rely on his testimony. Dalton,
409 F.3d at 1251.
W e need not decide this issue, because even assuming this was an issue of
law for which we would undertake the Johnson/Olano four-prong plain-error
review, M r. Leyland’s claim fails.
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A ssuming that M r. Leyland could satisfy the first three prongs, we
conclude that he cannot satisfy the fourth. See United States v. Gonzalez Edeza,
359 F.3d 1246, 1250-51 (10th Cir. 2004) (not resolving whether the first three
prongs of plain error review were met because the defendant failed to establish
the fourth prong). Here, Officer Boelter’s testimony as to the conversion ratio
stands unrebutted. Further, there was additional evidence that M r. Leyland was
involved with substantial quantities of methamphetamine— an associate of M r.
Leyland testified that he “cooked” two to eight ounces 12 of methamphetamine
“once or maybe twice a week” for a period of time. And the district court, in
imposing his sentence, noted that its drug quantity determination of only 110
grams of actual methamphetamine “is a conservative estimate since it assumes,
contrary to common sense, that th[e time M r. Leyland’s garage was raided and the
precursor chemicals were discovered] was the only time that this laboratory was
used at all. And common sense would suggest that it was used on other
occasions.” Given this, we simply cannot conclude that leaving any potential
error uncorrected would result in “manifest injustice.” M orales-Fernandez v.
I.N.S., 418 F.3d 1116, 1120 (10th Cir. 2005); see also United States v. W allace,
429 F.3d 969, 977 (10th Cir. 2005) (noting that our discretion to correct forfeited
errors “should be used sparingly and only in those circumstances in which a
miscarriage of justice would otherw ise result.”) (quotations omitted).
12
One ounce equals approximately 28.35 grams.
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II.
M r. Leyland also contends that the district court’s imposition of a 151
month total sentence “grouped for counts 1s, 2s, 3s, 4s,” was illegal because
count 4— possession of iodine with intent to manufacture methamphetamine—
carries a statutory maximum sentence of 10 years (120 months). 21 U.S.C. §§
802(35)(I) & 841(c). On this claim, the parties concede that no objection was
raised below and thus that plain error review is warranted.
Here, even assuming the first two prongs of the plain error test are m et, M r.
Leyland has not shown how the “grouping” of the counts affected his substantial
rights. M r. Leyland acknowledges that the other three counts— for which we was
also convicted— carry a statutory maximum of 20 years. Had the district court
specifically imposed 151-month sentences on those three counts and a concurrent
120-month sentence on the fourth count, there would have been no change in the
actual 151-month sentence M r. Leyland received. See U.S.S.G. § 5G1.2 cmt. n.1
(“The combined length of the sentences (“total punishment”) is determined by the
court after determining the adjusted combined offense level and the Criminal
History Category. . . . [T]he total punishment is to be imposed on each count and
the sentences on all counts are to be imposed to run concurrently to the extent
allowed by the statutory maximum sentence of imprisonment for each count of
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conviction.”). As M r. Leyland has offered no explanation as to how the form of
sentencing affected his substantial rights, 13 we find that no plain error occurred.
C ON CLU SIO N
For the foregoing reasons, we AFFIRM .
ENTERED FOR THE COURT
David M . Ebel
Circuit Judge
13
M r. Leyland argues only that “a sentence greater than the statutory
maximum, on its face, affects his substantial rights.”
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