United States v. Robert A. Tate , 822 F.3d 370 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3227
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT A. TATE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 4:14-cr-40073-JPG-1 — J. Phil Gilbert, Judge.
____________________
ARGUED FEBRUARY 23, 2016 — DECIDED MAY 18, 2016
____________________
Before WOOD, Chief Judge, and SYKES and HAMILTON, Cir-
cuit Judges.
HAMILTON, Circuit Judge. In this appeal, we address two
sentencing issues. First, defendant Robert A. Tate challenges
the district court’s findings on the extent of his relevant con-
duct. Those findings were based on credibility determinations
to which we give great deference, and we find no error. Sec-
ond, we must also decide whether a conviction under an Illi-
nois law that prohibits attempted procurement of anhydrous
2 No. 15-3227
ammonia with intent that it be used to manufacture metham-
phetamine qualifies as a “controlled substance offense” under
the Sentencing Guidelines’ career offender provision, U.S.S.G.
§ 4B1.1. Despite the conviction’s significant link to metham-
phetamine manufacture, careful parsing of the relevant
Guideline provisions shows that a conviction under this par-
ticular statute does not actually qualify. The district court will
be free to consider the nature of the conviction when it exer-
cise its sentencing discretion on remand, but it will need to do
so without treating this defendant as a career offender under
the Guidelines.
I. Relevant Conduct
A jury found appellant Tate guilty of conspiring to manu-
facture methamphetamine between February 2013 and June
2014 and guilty on a single count of distribution in March 2014
stemming from a controlled buy. Tate does not challenge his
convictions on appeal.
In applying the U.S. Sentencing Guidelines, a district court
must determine the defendant’s criminal history and offense
level. Tate’s criminal history category was VI, regardless of
any issue under the career offender Guideline. The district
court found that Tate’s relevant conduct made him responsi-
ble for 400 grams of methamphetamine, yielding an adjusted
offense level of 28. The court also found that Tate qualified as
a career offender under the Guidelines, which raised his ad-
justed offense level to 32. The district court’s guideline calcu-
lations produced a range of 210 to 262 months. The court sen-
tenced Tate to 210 months in prison on each count, to be
served concurrently.
No. 15-3227 3
The Sentencing Guidelines instruct district courts to base
the offense level on the defendant’s “relevant conduct,” a cal-
culation governed by § 1B1.3 of the Guidelines. In drug cases,
the quantity of drugs for which the defendant is held respon-
sible is “frequently the single most important determinant of
the length of the defendant’s sentence under the Guidelines.”
United States v. Acosta, 85 F.3d 275, 281–82 (7th Cir. 1996).
Tate’s conviction for distribution of methamphetamine in-
volved just 0.2 grams of methamphetamine, but at sentencing
the district court held him responsible for an estimated 400
grams of methamphetamine. That quantity was based not on
the single controlled buy but on the trial testimony of Tate’s
former girlfriend, Brandy Pierce, and a proffer statement by
Denise Huston. Pierce testified that she had supplied Tate
with precursor materials and allowed him to cook metham-
phetamine daily at her home over a period of several months.
Huston reported that Tate had manufactured methampheta-
mine at her home at least twenty times during the preceding
year.
At sentencing, Tate argued that Pierce and Huston were
not sufficiently credible to support the 400-gram figure. Judge
Gilbert rejected that argument. He acknowledged that the es-
timates were not exact but explained that in his experience,
witnesses like Pierce and Huston could credibly testify as to
whether someone was cooking methamphetamine “every day
or every other day” and could reasonably estimate the drug
quantities involved.
We review a district court’s factual findings on drug quan-
tity only for clear error, United States v. Austin, 806 F.3d 425,
430 (7th Cir. 2015), citing United States v. Clark, 538 F.3d 803,
812 (7th Cir. 2008), and we give substantial deference to the
4 No. 15-3227
sentencing court’s determinations of witness credibility.
United States v. Blalock, 321 F.3d 686, 690 (7th Cir. 2003); United
States v. Johnson, 227 F.3d 807, 813 (7th Cir. 2000). “Determin-
ing how much of a particular drug a defendant possessed,
over a lengthy period of time, is not an exact science.” United
States v. Sewell, 780 F.3d 839, 849 (7th Cir. 2015). As we have
often explained, drug traffickers rarely keep reliable business
records, and district courts determining relevant conduct may
make reasonable estimates. See Austin, 806 F.3d at 431; Sewell,
780 F.3d at 849.
Pierce testified that Tate cooked methamphetamine at
least once a day from January 2013 until October 2013, pro-
ducing at least two grams with each “cook.” The court’s esti-
mate of 360 grams was at the low end of the range her testi-
mony could support. Tate argues primarily that Pierce could
not be believed because of her prior convictions and her re-
peated attempts to minimize her own role in the conspiracy.
Those circumstances are not unusual with witnesses who
have been involved in drug-trafficking operations. They did
not preclude the district court from finding that Pierce’s testi-
mony was reliable enough to support the estimate in the
presentence report. See United States v. Rodgers, 245 F.3d 961,
968 (7th Cir. 2001) (The “district judge was free to credit Dex-
ter. That Dexter was a convicted felon who stood to gain from
his testimony against Rodgers is by no means a remarkable
circumstance.”). Pierce acknowledged participating in Tate’s
methamphetamine operation. While she denied helping cook
the drug, she also testified that she bought precursor materi-
als for Tate a “few times a week,” that she allowed Tate to cook
methamphetamine at her home, that she drove him to various
locations to sell the drug, and that she crushed pills for Tate
to use in cooks. The district court did not err in relying on
No. 15-3227 5
Pierce’s testimony to hold Tate responsible for 360 grams of
methamphetamine.
As for Denise Huston, Tate first argues that her proffer
statement is inconsistent with her trial testimony. The second
revised presentence report said that Huston saw Tate make
methamphetamine at her house at least twenty times over the
preceding year. At trial, however, Huston testified that Tate
made methamphetamine at her house “[a]t least ten different
times.” The discrepancy, Tate argues, shows that Huston’s rec-
ollections are vague and incredible. We disagree.
Discrepancies or inconsistent prior statements are of
course relevant in assessing witness credibility, but they “do
not, as a matter of law, render a witness’s testimony incredi-
ble.” United States v. Hernandez, 544 F.3d 743, 747 (7th Cir.
2008). Although Huston’s story was not exact, determining
drug quantities for sentencing purposes “is often difficult,
and district courts may make reasonable though imprecise es-
timates based on information that has indicia of reliability.”
United States v. Bozovich, 782 F.3d 814, 818 (7th Cir. 2015). The
district court found Huston and her estimates credible. In us-
ing the forty-gram figure, the court erred if at all on the low
side. (Huston testified that Tate might use up to five boxes of
pseudoephedrine pills per cook, which could yield ten grams
per cook, or 100 to 200 grams total.) See United States v. Acosta,
534 F.3d 574, 584 (7th Cir. 2008) (finding no clear error in use
of method to estimate drug quantity that erred on the low
side). We see no clear error in this finding.
Tate also argues there was no nexus between the metham-
phetamine he made at Huston’s residence and the conspiracy
to manufacture of which he was convicted. We disagree. The
methamphetamine he manufactured in those cooks is of
6 No. 15-3227
course “directly attributable to him.” Acosta, 534 F.3d at 585,
quoting United States v. McLee, 436 F.3d 751, 765 (7th Cir. 2006);
see U.S.S.G. § 1B1.3(a)(1)(A). And it was not clear error for the
district court to conclude that those drug quantities were part
of the ongoing conspiracy to manufacture the drug. Huston
testified that around the end of 2013 and beginning of 2014,
within the charged time period of the conspiracy, Tate came
to her home at least ten times to manufacture methampheta-
mine, that she would sometimes provide him with ingredi-
ents for his cook, and that Tate would sometimes pay her for
allowing him to manufacture at her home. The district court’s
finding that those drugs were relevant conduct for purposes
of the conspiracy was not clearly erroneous in light of this tes-
timony. Accordingly, we see no basis for reversal on any of
Tate’s relevant conduct arguments. 1
II. Career Offender Enhancement
Under the U.S. Sentencing Guidelines, an adult defendant
is a career offender if he is convicted of a crime of violence or
a controlled substance offense, and if he has at least two prior
felony convictions for crimes of violence or controlled sub-
stance offenses. U.S.S.G. § 4B1.1(a). Tate was classified as a ca-
reer offender based on two prior state court convictions: one
for unlawful delivery of cocaine, and the other for attempted
procurement of anhydrous ammonia with intent that it be
used to manufacture methamphetamine. That finding raised
1 Even if the district court had erred in using Huston’s statements to
determine relevant conduct, such an error would have been harmless.
Without those forty grams, Tate’s offense level would still have been
based on more than 350 grams. See U.S.S.G. § 2D1.1(c)(6). See United States
v. Frith, 461 F.3d 914, 918 (7th Cir. 2006) (error in calculating loss amount
was harmless where defendant’s “offense level remains the same”).
No. 15-3227 7
his guideline range by about fifty percent. Tate argues on ap-
peal as he did in the district court that the anhydrous ammo-
nia conviction did not qualify as a “controlled substance of-
fense.”
Tate’s argument presents a question of law that we review
de novo. United States v. Dyer, 464 F.3d 741, 743 (7th Cir. 2006),
citing United States v. Hankton, 432 F.3d 779, 795 (7th Cir. 2005).
Under the career offender provisions, a “controlled substance
offense” is defined as “an offense under federal or state law,
punishable by imprisonment for a term exceeding one year,
that prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counterfeit sub-
stance) or the possession of a controlled substance (or a coun-
terfeit substance) with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 4B1.2(b). The definition in-
cludes “aiding and abetting, conspiring, and attempting to
commit such offenses,” U.S.S.G. § 4B1.2 cmt. n.1, so it does not
matter that Tate’s anhydrous ammonia conviction was for at-
tempted procurement.
The Illinois law under which Tate was convicted provides
in relevant part:
It is unlawful to knowingly engage in the pos-
session, procurement, transportation, storage,
or delivery of anhydrous ammonia or to at-
tempt to engage in any of these activities or to
assist another in engaging in any of these activ-
ities with the intent that the anhydrous ammo-
nia be used to manufacture methamphetamine.
8 No. 15-3227
720 Ill. Comp. Stat. 646/25(a)(1). Violation of the statute is a
Class 1 felony under Illinois law, 720 Ill. Comp. Stat.
646/25(a)(2), punishable by between four and fifteen years of
imprisonment. See 730 Ill. Comp. Stat. 5/5-4.5-30(a).
Tate’s conviction for attempted possession of anhydrous
ammonia with intent to manufacture methamphetamine did
not involve the actual “possession of a controlled substance,”
so the latter portion of § 4B1.2(b) does not apply. See Dyer, 464
F.3d at 743 (defendant’s possession of pseudoephedrine was
not possession of a controlled substance, making “the last
portion of § 4B1.2(b) inapplicable”). Nor on its face does the
Illinois statute of Tate’s conviction prohibit the “manufacture,
import, export, distribution, or dispensing of a controlled sub-
stance.”
So far, then, the anhydrous ammonia conviction does not
satisfy the guideline definition of a controlled substance of-
fense. But § 4B1.2 also includes a relevant application note,
which is binding “‘unless it violates the Constitution or a fed-
eral statute, or is inconsistent with, or a plainly erroneous
reading of’ that Guideline.” Dyer, 464 F.3d at 743, quoting
Stinson v. United States, 508 U.S. 36, 38 (1993). Application
Note 1 to § 4B1.2 reads in relevant part: “Unlawfully pos-
sessing a listed chemical with intent to manufacture a con-
trolled substance (21 U.S.C. § 841(c)(1)) is a ‘controlled sub-
stance offense.’”
In United States v. Dyer, we considered the effect of that
note on the definition of “controlled substance offense.” Dyer
argued that his conviction for possession of pseudoephedrine
with intent to manufacture methamphetamine did not qualify
as a controlled substance offense under a strict reading of the
No. 15-3227 9
Guidelines because he had not been convicted of actually man-
ufacturing a controlled substance. 464 F.3d at 743. We recog-
nized that the argument “had some appeal” before a 1997
amendment to the Guidelines. Id. But the 1997 amendment
added the application note to bar that approach. In adopting
the amendment, the Sentencing Commission explained that
“there is such a close connection between possession of a
listed chemical … with intent to manufacture a controlled
substance and actually manufacturing a controlled substance
that the former offense [… is] fairly considered as [a] con-
trolled substance trafficking offense[].” Id. (alterations in orig-
inal), quoting U.S.S.G. app. C, amend. 568. Pseudoephedrine
is a “listed chemical,” see 21 U.S.C. § 802(33), (34)(K), so we
affirmed Dyer’s career offender designation.
If anhydrous ammonia were a listed chemical as well, this
would be a simple case controlled by Dyer, and Tate’s argu-
ment would fail. However, “listed chemical” has a particular
meaning within Title 21, Chapter 13, Subchapter I of the
United States Code. It includes “any list I chemical or any list
II chemical.” 21 U.S.C. § 802(33). List I and II chemicals are
those specified by regulation of the Attorney General as
chemicals used in manufacturing controlled substances un-
lawfully (list I chemicals are those specifically deemed “im-
portant to the manufacture of the controlled substances”), in-
cluding the qualifying chemicals on the itemized lists in 21
U.S.C. § 802(34) and (35). Anhydrous ammonia is not in-
cluded on either list. 2 Thus, Tate’s anhydrous ammonia con-
viction is not a conviction for unlawfully “possessing a listed
2
The regulations, like the statute, define listed chemical as “any List I
chemical or List II chemical.” 21 C.F.R. § 1300.02(b). List I and II chemicals
10 No. 15-3227
chemical with intent to manufacture a controlled substance.”
U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added). Sticking closely to
the text of the relevant statutes and the Guidelines, then, we
must conclude that Tate’s anhydrous ammonia conviction
falls outside the scope of both the definition of “controlled
substance offense” in § 4B1.2(b) and the application note.
The government argues that Tate’s anhydrous ammonia
conviction is so similar to offenses that do qualify as “con-
trolled substance offenses” that it makes little sense as a mat-
ter of logic or policy to exclude it. For example, the application
notes specify that unlawfully “possessing a prohibited flask
or equipment with intent to manufacture a controlled sub-
stance (21 U.S.C. § 843(a)(6)) is a ‘controlled substance of-
fense.’” U.S.S.G. § 4B1.2 cmt. n.1. Possession of a prohibited
flask with intent to manufacture would qualify as a controlled
substance offense for the same reason that we held in Dyer
that possession of a precursor “listed chemical” with intent to
manufacture qualifies: the application notes explicitly say so.
The government’s policy argument has considerable force.
Anhydrous ammonia, which is used as an agricultural ferti-
lizer, is also a key ingredient in one common method for pro-
ducing methamphetamine, and the Illinois statute of Tate’s
conviction required intent to use the anhydrous ammonia to
produce methamphetamine. Yet in parsing the applicable law,
we cannot ignore the fact that the provisions are quite specific
but do not mention anhydrous ammonia. It is not a “listed
chemical,” a “prohibited flask,” or a piece of “equipment.”
appear at 21 C.F.R. § 1310.02 of the regulations and include a few addi-
tional chemicals that do not appear in the statute, but anhydrous ammonia
is not among them. See 21 C.F.R. § 1310.02(a), (b).
No. 15-3227 11
The Sentencing Commission has chosen to expand the defini-
tion of “controlled substance offense” to include only a lim-
ited set of offenses involving possession of some ingredients
and equipment with intent to manufacture methampheta-
mine and other controlled substances. Based on the text of
§ 4B1.2 and its application notes, possession of an unlisted pre-
cursor chemical like anhydrous ammonia, even with intent to
manufacture, does not qualify. Accord, United States v. Walter-
man, 343 F.3d 938, 940–42 (8th Cir. 2003) (possession of lithium
with intent to manufacture methamphetamine is not a “con-
trolled substance offense”).
The government’s policy arguments make intuitive sense,
of course. Amendment 568 to the Guidelines resolved a circuit
split as to whether convictions for possessing a listed chemi-
cal, a prohibited flask, or equipment with intent to manufac-
ture a controlled substance qualified as controlled offenses.
The Sentencing Commission said yes based on the “close con-
nection” between possession of those items with intent to
manufacture and actual manufacture of controlled sub-
stances. See U.S.S.G. app. C, amend. 568. It is not readily ap-
parent why the Commission chose to distinguish between
“listed chemicals” like pseudoephedrine and unlisted chemi-
cals like anhydrous ammonia, both of which have legitimate
uses but also are used to manufacture methamphetamine.
Whatever its reasons, the Commission provided quite spe-
cifically that possessing “a listed chemical” and “a prohibited
flask or equipment” with intent to manufacture a controlled
substance qualified as controlled substance offenses. If the
Commission had intended to go further, to include unlisted
chemicals as well, it could have used language to that effect
12 No. 15-3227
or it could have said that the specific offenses listed in the ap-
plication notes were meant to be only examples. See Walter-
man, 343 F.3d at 941. It took neither step. The government’s
policy argument alone does not justify broadening the sweep
of the career offender enhancement beyond the plain text.
Accordingly, the district court erred in concluding that
Tate should be sentenced as a career offender. The effect on
Tate’s guideline range was substantial, raising it from 140–175
months to 210–262 months, with a final sentence of 210
months.
An error in calculating the Guideline range can still be
harmless where the district judge makes clear that the sen-
tence would have been the same absent the error. United States
v. Hill, 645 F.3d 900, 912 (7th Cir. 2011); see also United States
v. Rabiu, 721 F.3d 467, 470–71 (7th Cir. 2013); United States v.
Abbas, 560 F.3d 660, 667 (7th Cir. 2009); United States v. Ander-
son, 517 F.3d 953, 965 (7th Cir. 2008). It has long been recog-
nized that the Sentencing Guideline provisions for criminal
history have a number of rather wooden features that can pro-
duce arbitrary results. See U.S.S.G. § 4A1.3 commentary
(criminal history score unlikely to take into account all the
variations in seriousness of criminal history). That’s why even
the original version of the Guidelines actually encouraged
judges to consider upward and downward departures where
strict application of the criminal history provisions substan-
tially over- or under-represented the seriousness of the de-
fendant’s history. See U.S.S.G. §§ 4A1.3 & 5H1.8.
The issue about how to characterize Tate’s anhydrous am-
monia conviction thus provides another good opportunity to
remind district judges: A judge facing a close but technical is-
sue under the Guidelines should ask why the answer should
No. 15-3227 13
matter for the final sentence, see, e.g., United States v. Lopez,
634 F.3d 948, 954 (7th Cir. 2011), and should use the judge’s
discretion under 18 U.S.C. § 3553(a) and United States v.
Booker, 543 U.S. 220 (2005).
Here, the district judge did not clearly indicate that he
would have imposed the same sentence absent the career of-
fender enhancement. Accordingly, we VACATE Tate’s sen-
tence and REMAND for resentencing consistent with this
opinion.