United States v. Lee ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 3 2000
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-3266
(D. Kan.)
DENNIS LEE, (D.Ct. No. 96-CR-40055-SAC)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Dennis Lee appeals his sentence after pleading guilty to one
*
This order and judgment is not binding precedent except under the doctrines of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.
count of conspiracy to possess with intent to manufacture or distribute in excess
of one kilogram of methamphetamine. Specifically, Mr. Lee appeals the type of
methamphetamine the district court attributed to him in calculating his sentence
under United States Sentencing Guideline § 2D1.1(c)(3). We exercise jurisdiction
under 28 U.S.C. § 1291 and affirm.
As part of a plea agreement, Mr. Lee pled guilty to Count I of an
indictment for conspiracy to possess with intent to manufacture or distribute in
excess of one kilogram of methamphetamine. The indictment indicated the
conspiracy began on or about March 1, 1993. After Mr. Lee pled guilty, a
probation officer prepared a presentencing report. In calculating Mr. Lee’s
sentence, the probation officer recommended a base offense level of 34 under
United States Sentencing Guideline § 2D1.1(c)(3) because the conspiracy
involved 7,999 grams of “methamphetamine.”
Mr. Lee filed objections to the presentencing report, including an objection
on grounds the methamphetamine involved in the conspiracy consisted of L-
methamphetamine rather than D-methamphetamine. Mr. Lee argued the
distinction was important because the conspiracy occurred before the November
1, 1995 amendment to U.S.S.G. § 2D1.1(c)(3), which eliminated the distinction
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between L- and D-methamphetamine for the purposes of sentencing. 1 In sum, Mr.
Lee argued that because the current version of § 2D1.1(c)(3) does not apply in his
case, the district court must calculate his sentence to reflect the lesser sentences
previously given for L- rather than D-methamphetamine possession and
manufacturing. 2
At Mr. Lee’s sentencing hearing, the government offered the testimony of
Special Agent Larry Dixon with that of the Kansas Bureau of Investigation. Mr.
Dixon testified Mr. Lee produced his methamphetamine using “an ephedrine
reduction method.” Agent Dixon testified he received this information from Mr.
Lee, Mr. Lee’s live-in girlfriend, and another co-conspirator. The government
next offered the testimony of Dwaine Worley, a forensic chemist, who testified
the ephedrine reduction method of manufacturing methamphetamine always
1
“Under the old guidelines, a sentence for [L-methamphetamine] was
significantly less than one for D-methamphetamine.” See United States v. Svacina, 137
F.3d 1179, 1186 (10th Cir. 1998). The November 1, 1995 amendment eliminated this
distinction, so that all forms of methamphetamine are now treated as type D-
methamphetamine. Id. (relying on U.S.S.G. App. C at 344, Amendment 518).
2
Mr. Lee points out that under the prior version of § 2D1.1, one gram of L-
methamphetamine is equivalent to forty grams of marijuana under the Drug Equivalency
Tables, so that he must have distributed 250 times as much L-methamphetamine as D-
methamphetamine to receive the same sentence he received applying the current version
of § 2D1.1(c)(3).
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produces D-methamphetamine.
In addition to this testimony, the district court made findings and
conclusions of law at the sentencing hearing concerning Mr. Lee’s objections to
the presentencing report’s application of the current version of § 2D1.1. The
district court acknowledged the November 1, 1995 amendment eliminated the
distinction between the two types of methamphetamine so that the completion
date of the conspiracy controlled what version of § 2D1.1 applied. Because a
conspiracy is a prototypical continuing offense, the district court determined the
conspiracy at issue in this case did not end until Mr. Lee’s indictment on July 24,
1996, so that the current version of § 2D1.1, enacted on November 1, 1995,
applied. Later, in a written memorandum filed with the final presentencing
report, the district court reiterated these same conclusions. In addition, the
district court stated “[e]ven if this were not so, based upon the evidence presented
during the sentencing hearing, the court would conclude that the government
carried its burden of proving by a preponderance of the evidence that the
manufacture and distribution of D-methamphetamine was the object of this
defendant’s drug trafficking conspiracy.”
On appeal, Mr. Lee raises the same issue addressed by the district court
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concerning the application of the current version of U.S.S.G. § 2D1.1(c)(3) in
calculating his sentence. We review the district court’s application of the
sentencing guidelines de novo, and its factual findings under a clearly erroneous
standard. United States v. Morales, 108 F.3d 1213, 1225 (10th Cir. 1997). It is
well established conspiracy is a continuing offense for which a conspirator, like
Mr. Lee, may be sentenced under a law enacted during the course of the
conspiracy and which increases the penalty. See United States v. Stanberry, 963
F.2d 1323, 1327 (10th Cir. 1992); accord United States v. Boyd, 149 F.3d 1062,
1068 (10th Cir. 1998), cert. denied, 526 U.S. 1147 (1999); United States v.
Massey, 48 F.3d 1560, 1568 (10th Cir.), cert. denied, 515 U.S. 1167 (1995).
In applying this principle, we must determine if the district court correctly
determined the conspiracy ended in July 1996 so that the current version of
U.S.S.G. § 2D1.1 should be applied in calculating Mr. Lee’s sentence. In this
case, Mr. Lee pled guilty to Count I of the indictment for a conspiracy, as “set out
in the Grand Jury Indictment and supporting testimony.” During the plea hearing,
the government introduced into evidence a summary of the grand jury testimony
as well as the testimony of eight individuals, which supported Count 1 of the
indictment and established that between March 1, 1993 and continuing until July
24, 1996, Mr. Lee conspired to possess, manufacture and distribute one kilogram
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of methamphetamine. Mr. Lee agreed that the witnesses would testify to this if
called to testify against him, and that he did the things set forth in Count I of the
indictment. For the purposes of determining when the conspiracy ended, we
believe this is sufficient evidence. Thus, we hold the district court correctly
concluded the conspiracy ended July 24, 1996, requiring application of the current
version of U.S.S.G. § 2D1.1(c)(3) in calculating Mr. Lee’s sentence at a base
offense level of 34. Moreover, even if the conspiracy ended prior to enactment of
the current version of this sentencing guideline, we agree with the district court’s
finding the government provided sufficient evidence at the sentencing hearing to
establish the conspiracy involved the manufacture of D-, rather than L-,
methamphetamine for the purpose of sentencing Mr. Lee.
For the foregoing reasons, we AFFIRM the district court’s judgment
concerning Mr. Lee’s conviction and sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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