United States v. Paul Bargo , 482 F. App'x 78 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0561n.06
Case No. 09-5959 FILED
May 31, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES of AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
PAUL LINVILLE BARGO, )
)
Defendant-Appellant. )
_______________________________________ )
BEFORE: BATCHELDER, Chief Circuit Judge; SILER and COLE, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. Paul Bargo appeals his conviction and sentence
based on the theoretical yield of methamphetamine from a proven quantity of pseudoephedrine. He
also appeals his conviction based on a challenge to venue. We affirm.
I.
Paul Bargo was in the business of “cooking” methamphetamine (“meth”) from
pseudoephedrine and selling it. The government caught him and charged him with 17 counts relating
to this activity. Only two of those counts are pertinent here, and both stem from a single incident.
On February 12, 2008, an undercover detective and a confidential informant met with Bargo
at a Love’s Truck Stop. They gave Bargo 108 boxes of Sudafed, containing 103.68 grams of
pseudoephedrine, on agreement that Bargo would repay with half of the methamphetamine he
manufactured. Bargo boasted that he was the best meth cook ever and promised to produce “three
or four ounces” of meth. Three to four ounces is approximately 84 to 112 grams.
No. 09-5959, United States v. Bargo
Police arrested Bargo and charged him with — among numerous other things — “possession
of pseudoephedrine for the manufacture of meth” in violation of 21 U.S.C. § 841(c)(2), and “attempt
to manufacture 50 grams or more of methamphetamine” in violation of 21 U.S.C. § 846 and § 851.
Bargo entered not guilty pleas on these charges and the case was tried to a jury.
At trial, the government produced witnesses to testify about Bargo’s manufacture and
distribution of meth, including the undercover officer and the confidential informant, who testified
about the Love’s Truck Stop transaction and Bargo’s promise of three to four ounces (84 to 112
grams). The government also produced a chemist as an expert witness who testified that the
theoretical yield of 103.68 grams of pseudoephedrine would be 95.45 grams of meth. In defense,
Bargo produced an expert toxicologist and pharmacologist named Dr. Terry Miller who testified that
95.45 grams was an unrealistically high “perfect” conversion and insisted that a proper estimate
would be 27.16 grams (26%). Dr. Miller relied on a table in a paper written by Nila Bremmer and
Robin Woolery of the Division of Criminal Investigation Laboratory, Des Moines, Iowa,1 and called
the paper the “best article available in this field, the most extensive,” and “the very best study
available.” The defense rested its case and the government then called Nila Bremmer (author of the
aforementioned article) as a rebuttal witness. She essentially destroyed Dr. Miller’s testimony and
his credibility, stating that his “calculation does not correlate with anything I recognize.”
1
In the Bremmer-W oolery article, the authors reported actual yields obtained using a variety of “recipes” given
to them by actual clandestine meth cooks. The lowest yield in that table was 4% purity and the highest 48%. Dr. Miller
asserted that the midpoint (i.e., 26%) would be the best estimate for this case, which gave 27.16 grams. The 4% to 48%
range gave an estimated range of 4.65 to 50.29 grams for this case.
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No. 09-5959, United States v. Bargo
The jury convicted Bargo on both counts: possession of pseudoephedrine and attempt to
manufacture 50 grams or more of meth. In calculating the advisory sentencing guidelines for Count
5 (attempt), the court used 95.45 grams as the amount of meth, converted it to marijuana equivalent,
and added that to the rest of the marijuana equivalent to find the base offense level in the drug
quantity table. But after completing that exercise, the court sentenced Bargo to life imprisonment,
the mandatory sentence prescribed by statute. See 21 U.S.C. §§ 841(b)(1)(A) and 851 (imposing a
mandatory sentence on a defendant with two prior drug convictions).
II.
A.
Bargo argues that the theoretical yield of 95.45 grams was too high — that, in reality, 103
grams of pseudoephedrine would not produce 50 grams or more of meth and, therefore, the evidence
was insufficient to prove the attempt charge. “To convict a person of an attempt to commit a drug
offense, the Government must establish two elements: (1) the intent to engage in the proscribed
criminal activity; and (2) the commission of an overt activity that constitutes a substantial step
toward commission of the crime.” United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998). The
government produced witnesses — an undercover police officer and a confidential informant — who
testified that Bargo boasted that he was the best meth cook and had promised to produce “three or
four ounces” (i.e., 84 to 112 grams) of meth from the pseudoephedrine they delivered. This was
sufficient to support the jury’s finding that Bargo had completed the attempt charge.
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No. 09-5959, United States v. Bargo
B.
Bargo argues that the district court erred by using 95.45 grams as the amount of meth to be
converted to marijuana equivalent for purposes of calculating his advisory guideline range. Bargo
is correct, though his analysis is not and his claim is ultimately futile.
In calculating Bargo’s guidelines range, the district court converted the 103.68 grams of
pseudoephedrine to 95.45 grams of meth (based on the expert’s yield), converted that to 1,909
kilograms of marijuana equivalent (pursuant to the guidelines), added that to the rest of the
marijuana equivalent (from the other crimes) for a total of 3,691 kilograms of marijuana equivalent,
and set the base offense level at 34, based on the § 2D1.1(c)(3) Drug Quantity Table.
But the applicable Guideline, U.S.S.G. § 2D1.1, has a commentary note for a situation such
as this (Comment 10.E) that instructs the court to convert one gram of pseudoephedrine to ten
kilograms of marijuana equivalent. See United States v. Martin, 438 F.3d 621, 625 (6th Cir. 2006)
(considering this comment). Applying this note results in 1,037 kg of marijuana equivalent in this
case. When added to the other marijuana equivalent, this gives 2,189 kg total, which corresponds
to a base offense level of 32. So, the court’s calculation of 34 was error.
But Bargo’s conviction was subject to a statutory mandatory term of life imprisonment. And
a defendant cannot contest the reasonableness of a mandatory life sentence. United States v.
Wheeler, 535 F.3d 446, 458 (6th Cir. 2008) (“Because the district court was bound to impose the
mandatory life sentence for the drug conspiracy conviction, any sentencing error would be harmless,
as Wheeler cannot receive a sentence lower than the statutory minimum.”). This claim fails.
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No. 09-5959, United States v. Bargo
C.
Bargo contends that the government did not establish the location of the Love’s Truck Stop
where the pseudoephedrine transaction occurred and, therefore, did not establish venue. But Bargo
did not raise this issue in the district court and thus failed to preserve it for appellate review. United
States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000). This claim also fails.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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