United States v. Housel , 9 F. App'x 874 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 24 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-3252
v.
(D.C. No. 99-CR-40063-DES)
(D. Kan.)
JOHN RICHARD HOUSEL, SR.,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, KELLY and LUCERO, Circuit Judges.
John Richard Housel pleaded guilty to distributing and attempting to
distribute a total of about one and a half pounds of marijuana. (Doc. 44 (plea
agreement); Doc. 1 (indictment).) On appeal, Housel asserts that the Presentence
Investigation Report (PSR) incorrectly calculated that he was responsible for the
equivalent of more than 10,431 kilograms of marijuana. Housel’s counsel below
*
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Order and Judgment is not binding precedent, except under the doctrines of law of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.
initially filed several objections to the PSR but withdrew them at sentencing,
asserting that they would not affect Housel’s sentence. (Doc. 61 (sentencing
transcript), at 2-3.) The district court adopted the PSR’s findings and application
of the guidelines, and sentenced Housel to ten years’ imprisonment. (PSR ¶ 84;
Doc. 56 (judgment), at 2,7.)
Because he did not raise his argument below, Housel has waived review of
all but plain error. United States v. Dwyer, 245 F.3d 1168, 1170 (10th Cir. 2001).
To reverse, we must find (1) error that is (2) plain, (3) affects the defendant’s
substantial rights, and (4) “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467
(1997) (alteration omitted). Factual disputes not raised below do not amount to
plain error. United States v. Svacina, 137 F.3d 1179, 1187 (10th Cir. 1998). We
therefore accept the factual findings of the PSR and review only whether the
PSR’s application of the guidelines to these facts was plain error.
The PSR determined that Housel’s related conduct included attempting to
manufacture methamphetamine. (PSR ¶¶ 21-22, 106.) An informant had reported
that Housel was setting up a methamphetamine lab and needed to locate red
phosphorus, iodine crystals, and ephedrine tablets. (PSR ¶ 6.) Housel told an
undercover officer that he had the needed cookware and was merely waiting for
the precursor chemicals. (PSR ¶ 8.) After some negotiations, Housel purchased
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phosphorus, iodine, and pseudoephedrine from the officer. (PSR ¶¶ 8, 12, 14.)
Laboratory analysis indicated that from the quantity of phosphorus, Housel could
have produced 1043 grams of methamphetamine. 1 (PSR ¶ 14.) Using the table in
§ 2D1.1 of the Sentencing Guidelines, the PSR converted the methamphetamine to
10,430 kilograms of marijuana and added it to the 1.13 kilograms of marijuana
the transactions underlying the charged offenses. (PSR ¶ 23.)
Housel argues that this related conduct should have been treated as
possession of a listed chemical, for which sentences are ordinarily calculated
under § 2D1.11. Pseudoephedrine and iodine are both listed chemicals. See 21
U.S.C. § 802(34), (35). The PSR, however, treated Housel’s conduct as
amounting to an attempt to manufacture methamphetamine, a controlled
substance, and the sentence for this offense is governed by § 2D1.1. 2 We decline
to disturb the PSR’s factual determination or to hold that application of § 2D1.1
was plain error in this case.
The cases that Housel relies on most heavily are readily distinguishable
because they did not involve attempts to manufacture methamphetamine. In
United States v. Hoster, 988 F.2d 1374, 1382 (5th Cir. 1993), the court found that
1
Housel does not appear to challenge this calculation.
2
Even when the underlying offense is possession of a listed chemical, the
Sentencing Guidelines state that § 2D1.1 should be applied if the defendant’s
actions constitute an attempt to manufacture a controlled substance and if that
section results in a higher offense level. § 2D1.11(c) & Application Note 2.
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it was plain error to aggregate the quantities of a controlled substance
(amphetamine) and a listed chemical (phenylacetic acid) by treating phenylacetic
acid as equivalent to phenylacetone, which is listed in the conversion tables under
§ 2D1.1. The court noted that “there is nothing in the Guidelines by which one
could infer a relationship between phenylacetic acid and phenylacetone.” Id. at
1382 n.21. Similarly, in United States v. Wagner, 994 F.2d 1467, 1472 (10th Cir.
1993), we found that it was plain error to convert P 2P – a controlled substance
that is a precursor chemical to methamphetamine – into methamphetamine and
then convert that into marijuana to aggregate quantities under § 2D1.1. We held
instead that the P 2P should have been converted directly to marijuana in
accordance with the Guidelines’ table. Id. In this case, however, Housel’s
offense was attempting to manufacture methamphetamine, so the quantity of
methamphetamine that he was capable of making was relevant. See United States
v. Griggs, 71 F.3d 276, 280 (8th Cir. 1995).
Housel’s brief seems to suggest that his counsel below erred in failing to
preserve proper objections to the PSR. (Opening Br. at 5.) He has not directly
raised a claim of ineffective assistance of counsel, and we rarely consider the
issue on direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240-41
(10th Cir. 1995) (en banc). If Housel wishes to pursue this argument, he must do
so in a collateral proceeding under 28 U.S.C. § 2255.
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We AFFIRM Housel’s sentence.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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