United States v. Blanchard ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 27 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-1108
(D.C. No. 91-CR-244-N)
CHARLES BLANCHARD, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is ordered
submitted without oral argument.
Charles Blanchard filed a Motion for Review of Sentence, which the district court
construed as a motion to review an illegal sentence pursuant to 28 U.S.C. § 2255.
Blanchard appeals the denial of his motion.
*
This order and judgment is not binding precedent, except under the doctrines of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.
In 1992, Blanchard entered a plea of guilty to one count of conspiracy to distribute
in excess of 100 grams of methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1) and 846.
In the plea agreement, Blanchard stipulated the offense involved 54 pounds of
methamphetamine and that the appropriate base offense level was 36. This base offense
level was appropriate for a conviction relating to d-methamphetamine rather than
l-methamphetamine.1 The presentence report also calculated the base offense level on the
assumption the substance involved was d-methamphetamine, although no testing was
done to determine the composition of the substance and the government introduced no
evidence of the type of methamphetamine involved. As regards the methamphetamine in
question, Blanchard's only objection to the presentence report was that it calculated his
sentence based on pure methamphetamine rather than a mixture containing
methamphetamine. In an addendum to the presentence report, the probation office
concluded there was insufficient evidence to determine the purity of the
methamphetamine and concluded Blanchard "was responsible for the manufacture of 54
pounds of methamphetamine, not pure." Addendum at 2. Blanchard was sentenced in
May 1992 based on a mixture containing d-methamphetamine to 120 months'
imprisonment.
In his motion for review of sentence, Blanchard contends for the first time that the
district court erred in sentencing him on the basis of d-methamphetamine rather than
l-methamphetamine in the absence of any evidence showing the methamphetamine
involved was d-methamphetamine. The version of the sentencing guidelines in effect at
the time he was sentenced produced a significantly harsher sentence for
1
See U.S.S.G. § 2D1.1(c)(4) and Drug Equivalency Tables (1993).
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d-methamphetamine than for l-methamphetamine.2
Because Blanchard did not object to the presentence report's reliance upon
d-methamphetamine rather than l-methamphetamine, even though that report clearly
calculated his base offense level using d-methamphetamine, we affirm the denial of
Blanchard's motion. "The government has the burden of proof and production during the
sentencing hearing to establish the amounts and types of controlled substances related to
the offense." United States v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994), cert. denied
130 L. Ed. 2d 1081 (1995). Although the government has the burden of proving the type
of methamphetamine, "the burden of alleging factual inaccuracies of the presentence
report is on the defendant." Id. "Failure to object to a fact in a presentence report, or
failure to object at the hearing, acts as an admission of fact." Id. Consequently,
Blanchard has failed to preserve this issue. In the absence of an objection, we review
only for plain error. Id. "However, factual disputes do not rise to the level of plain error.
By failing to make any objections to the scoring of the methamphetamine, [defendant] has
in effect waived the issue for appeal." Id. at 580 (citation omitted).
Blanchard does not base his claim for relief on an ineffective assistance of counsel
allegation for failure to require the government to prove the type of methamphetamine
involved. Compare United States v. Glover, 97 F.3d 1345, 1348 (10th Cir. 1996) (failure
to object precluded belief based on absence of evidence methamphetamine involved was
d-methamphetamine, but did not preclude claim of ineffective assistance of counsel). Nor
would such a claim be warranted under the facts of this case.
2
Under the U.S.S.G. § 2D1.1 Drug Equivalency Tables, one gram of d-
methamphetamine mixture was equivalent to one kilogram of marijuana while one gram
of l-methamphetamine was equivalent to forty grams of marijuana.
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Not only did Blanchard fail to object to the calculation based upon
d-methamphetamine in the presentence report, he also concedes in his opening brief the
methamphetamine he manufactured was at least fifteen percent d-methamphetamine.
Brief at 8. Blanchard was not sentenced based on 54 pounds of pure
d-methamphetamine, but rather his sentence was based on 54 pounds of a mixture
containing d-methamphetamine. The presence of any amount of d-methamphetamine in
the mixture justifies this sentence computation. See United States v. Decker, 55 F.3d
1509, 1513 (10th Cir. 1995).
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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