United States v. Russell Kevin Voss

Russell Kevin Voss was sentenced to sixty five months imprisonment for conspiring to possess listed chemicals with intent to manufacture methamphetamine in violation of 21 U.S.C. § 846 (1988). His sentence was imposed pursuant to the United States Sentencing Commission’s Guidelines Manual (Nov.1989) (hereinafter “Guidelines”). The government challenges the propriety of the sentence. Mr. Voss argues in response that the district court applied the wrong guideline to determine his sentence. Because Congress intended to punish listed chemical offenders less severely than persons found guilty of the manufacture of illegal drugs, we agree with Mr. Voss. We therefore vacate his sentence and remand for resentencing in accordance with this opinion.

I.

Because the Government’s appeal is limited to Mr. Voss’s sentencing, we only briefly set forth the facts leading to his conviction. On June 30, 1989, Mr. Voss and Harmon Heath were arrested in Tulsa, Oklahoma, shortly after purchasing 110 pounds of ephedrine, 20 gallons of hydriodic acid, and approximately 20 pounds of red phosphorous from Mid-Town Scientific Chemical Company. In the cab of the truck used to transport the chemicals, the arresting DEA agents found one quarter-ounce of white powder that field-tested positive for methamphetamine. At the time of the arrest, Mr. Heath told the agents that Mr. Voss had a methamphetamine laboratory at his home in Riverside, California. A later search of the California premises described by Heath disclosed a dismantled laboratory and approximately 1.5 pounds of methamphetamine. The presentence report, prepared after Mr. Voss’s conviction, estimated that the chemicals seized in Oklahoma could potentially produce at least 80 pounds of methamphetamine.

Mr. Voss was subsequently indicted for three violations of federal law. Count I charged him with conspiring to possess the listed chemicals ephedrine and hydriodic acid with the intent to manufacture methamphetamine; Count II charged him with possession of the two listed chemicals with intent to manufacture methamphetamine; and Count III charged him with possessing methamphetamine with the intent to distribute. On March 21, 1990, after a jury trial, Mr. Voss was acquitted of Counts II and III, but convicted of Count I.

Mr. Voss was convicted of conspiring to possess listed chemicals in violation of 21 U.S.C. § 846. Section 846 provides that conspirators are to be punished with reference to the object of the conspiracy, and the Guidelines determine the base offense level accordingly. Guidelines, § 2X1.1. Mr. Voss’s objective was to violate 21 U.S.C. § 841(d), which provides in relevant part: “Any person who knowingly or intentionally — II (1) possesses a listed chemical with intent to manufacture a controlled substance ... shall be fined in accordance with Title 18, or imprisoned not more than 10 years, or both.” 21 U.S.C. § 841(d). The Guidelines and section 846 thus require the district court to determine the base offense level as if Mr. Voss had violated section 841(d).

The district court sentenced Mr. Voss in accordance with sentencing guideline 2D1.1.1 Rec., vol. Ill, at 5-6. Under that guideline, the court determined that the relevant quantity of methamphetamine for sentencing purposes was the 1.5 pounds seized at the California laboratory. The district court concluded that this quantity warranted an offense level of 26,2 which when considered with his criminal history level of I, resulted in a range of 63-78 months. Id. The district court imposed a sentence of 65 months.

The government contends on appeal that the district court erred in relying only on the drugs seized in California, without considering the quantities producible from the chemicals seized in Oklahoma. In the government’s view, Mr. Voss should be sentenced as though he possessed 81.5 pounds, or approximately 36.96 kilograms, of methamphetamine. Under the Drug Quantity Table, this amount would result in a base offense level of 38. Applying the sentencing table, Mr. Voss’s sentencing range would then be from 235 to 293 months. Because his sentence could not exceed the statutory maximum under section 5Gl.l(a), however, Mr. Voss would be sentenced to ten years in prison.

II.

Like the district court, the government’s brief assumes that violations of section 841(d) should be sentenced under Guidelines section 2D 1.1. We hold, to the contrary, that section 2D1.1 does not properly apply to violations of that statute. While we acknowledge that the applicability of the guideline was not questioned in the district court, this failure does not license us to disregard the lower court’s plain legal error. See United States v. Smith, 919 F.2d 123, 124 (10th Cir.1990) (application of the wrong guideline in sentencing constitutes plain error).

The statutory index appended to the sentencing guidelines simply cross-references section 841(d) and Guidelines section 2D1.1, without commentary. Guidelines, Appendix A at A.19 (Nov.1989). In this case, the probation officer who prepared the presen-tence report relied on this reference to recommend the sentence. Rec., vol. II, at 4. Similarly, the government’s brief relies on this single reference. Reply Brief of Appellant at 3. The reference in the statutory index does not, however, compel application of the referenced guideline. “Rather than establishing immutably the exclusive list of available guidelines for given offenses, the Index merely points the court in the right direction.” United States v. Cambra, 933 F.2d 752, 755 (9th Cir.1991) (emphasis added). The Guidelines instruct sentencing courts to: “Determine the applicable offense guideline from Chapter Two. See § 1B1.2 (Applicable Guidelines). The Statutory Index (Appendix A) provides a listing to assist in this determination.” Guidelines, § lBl.l(a) (emphasis added). “If, in an atypical case, the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted.” Guidelines, Appendix A, Introduction to Statutory Index at A.l (emphasis added).

If we conclude that the suggested guideline is inappropriate to the underlying conduct, we must then search for the section most applicable to possession of listed chemicals with intent to manufacture methamphetamine. Our review of the application of a particular guideline section is de novo. See United States v. Roberts, 898 F.2d 1465, 1469 (10th Cir.1990); United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir.1990) (“legal conclusions with respect to the guidelines ... subject to de novo review”).

A.

Various factors compel the conclusion that Appendix A’s suggestion should not be followed in this case. First, we note that the appendix was written before the current version of section 841(d) was enacted3 as part of the Anti-Drug Abuse Amendments Act of 1988, on November 18, 1988. Pub.L. No. 100-690, § 6055, 102 Stat. 4312, 4318 (Subtitle A — Chemical Diversion and Trafficking Act of 1988).4 The government, like the district court, therefore relies on an appendix drafted prior to the adoption of the statute that Mr. Voss was convicted of conspiring to violate.

Congress’s distinction between the particular conduct involved in section 841(d)(1) violations, possession of certain listed chemicals, and section 841(a) violations, possession of controlled drugs themselves, suggests that application of section 2D1.1 is inappropriate. Unlike the specific drug offense penalties set forth in section 841(b), subsection (d) allows no more than ten years imprisonment.5 Adoption of the government’s suggested approach in this case would insure that almost all violators of section 841(d) would be sentenced to the ten year maximum imprisonment, see United States v. Perrone, 936 F.2d 1403, 1419 (2d Cir.1991), thus turning a statutory maximum into a mandatory sentence. The Sentencing Commission suggests that such interpretations are undesirable because they preclude district courts from considering aggravating or mitigating factors. See United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System, 27-30 (August 1991). Application of section 2D1.1 to section 841(d)(1) violations would effectively nullify the various sections of the Guidelines geared to a particular defendant’s offense-specific conduct. See, e.g., Guidelines, §§ 3A1.1, 3B1.1, 3B1.2, 3B1.3, 3E1.1.6 Absent stronger support than a reference in a statutory appendix written without specific knowledge of the statute at issue, we decline to undermine the sentencing regime created by the Sentencing Commission. Moreover, we are persuaded that a contrary interpretation would ignore “Congress’ explicit determination, as expressed in § 841(d), that the possession of processing chemicals warrants less severe punishment than do other more advanced efforts to traffic in narcotics.” Perrone, 936 F.2d at 1415.

Application of section 2D1.1 equates possession of listed chemicals with intent to manufacture and manufacture. The dissent notes that “ultimately, of course, the objective was to manufacture illegal methamphetamine.” Dissent at 1013. Because of his objective, the dissent would treat Mr. Voss in precisely the same manner as if he had manufactured methamphetamine. Congress would not. As is discussed above, Congress has made an explicit determination that section 841(d) violators are to be treated less severely than those who are found guilty of manufacturing methamphetamine.

The dissent argues that the “statutory cap” prevents the application of section 2D 1.1 from subverting this intention. Dissent at 1014 n. 2. At some level, this is correct, but only in the most literal sense; the Guidelines may not authorize a sentence in excess of the statutory maximum. Application of section 2D 1.1 makes the statutory maximum the rule rather than the exception, is contrary to congressional intention, and prevents incorporation of individual offense characteristics in the guideline calculus. In our judgment, such an approach is unsupportable.

Our conclusion is further buttressed by the most recent amendments to the Sentencing Guidelines. As of November 1, 1991, violators of section 841(d) are sentenced under Guidelines section 2D1.11. This new guideline establishes a base offense schedule for possession of listed chemicals. Guidelines, § 2D1.11. The Statutory Index has been amended to reflect the change. See Guidelines, Appendix A at 394 (Nov.1991). A majority of the Courts of Appeals, including this circuit, will apply a clarifying amendment to the Commentary to the Guidelines in reviewing sentencing which occurred prior to the effective date of the change. See Early v. United States, — U.S.-, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991) (White, J. dissenting from denial of certiorari) (citing cases); United States v. Smith, 951 F.2d 1164, 1168 (10th Cir.1991); United States v. Urbanek, 930 F.2d 1512, 1515 (10th Cir.1991).7

Because the amendment here is substantive rather than merely clarifying, we do not apply it. Nevertheless, it does support our conviction that section 2D1.1 does not apply to section 841(d) violations. In United States v. Nissen, 928 F.2d 690, 695 (5th Cir.1991), the court considered a subsequent change to the text of the Guidelines themselves in interpreting a particular guideline section. In Nissen, as in this case, the amendment supported the court’s reading of the Guidelines. Here, the addition of section 2D1.11 serves only to underscore the inapplicability of section 2D1.1 to listed chemicals offenses. The Commission’s explanation of its change comports with our reading of the amendment. “This amendment makes Chapter Two, Part D more comprehensive by providing additional guidelines to address violations involving listed chemicals, ... .that are used in the manufacture of controlled substances.” Guidelines, Appendix C, amendment 371 (Nov.1991) (emphasis added). Had the previous versions of the Guidelines addressed violations involving listed chemicals, additional guidelines would not have been necessary.

The new guideline tracks Congress’s statutory approach to listed chemical offenses. In Mr. Voss’s case, the 110 pounds, or approximately 49.90 kilograms, of ephedrine seized at Tulsa, would result in a base offense level of 28. Guidelines, § 2Dl.ll(d)(l). The amount of ephedrine controls because it is “the single listed essential chemical resulting in the greatest offense level.” Guidelines, § 2Dl.ll(b). With Mr. Voss’s criminal history score, a sentence of 78-97 months is indicated. In accord with the purposes of the Guidelines, the new guideline leaves room for consideration of aggravating and mitigating factors connected to a particular offense. Under the dissent’s approach, ten years is required. Dissent at 1014 n. 2. The contrast between the dissent’s approach and that adopted by the Sentencing Commission makes plain that the previous versions of the Guidelines did not address this conduct.

B.

We realize that other courts have applied section 2D1.1 to section 841(d) offenses. In United States v. Kingston, 922 F.2d 1234, 1237-39 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2054, 114 L.Ed.2d 460 (1991), the court justified its application of the guideline by emphasizing the federal effort to block drug distribution efforts at the earliest possible moment. Id. at 1238. No doubt this reasoning supports enactment of section 841(d) itself, as it does the prosecution of Mr. Voss in this case. The reasoning does not, however, address the manifest intention of Congress to punish section 841(d) violators less severely than violators of the other drug offense sections of 841. As is discussed above, congressional intention with respect to both section 841 and the Guidelines themselves persuades us that section 2D1.1 should not have been employed to sentence Mr. Voss.

United States v. Cook, 938 F.2d 149, 152 (9th Cir.1991), reaches the same result as Kingston for a different reason. In Cook, the court did not rely on the statutory index, but rather on the title of section 2D1.1: “Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses).” Id. The Cook court felt that the Guidelines thus created “an identity of crimes and punishments,” between drug offenses and listed chemical offenses, even though such an interpretation meant that “the Guidelines have created a mandatory maximum which in fact exceeds what the statute provides.”8 Id. The Cook court was not persuaded by the apparent congressional intent with respect to violations of section 841(d). We think that “[possession with [i]ntent” in the title to the Guideline refers to possession of illegal drugs, not listed chemicals.9 The absence of listed chemicals from the table in section 2D1.1 supports this understanding. Again, for us, congressional intent compels a different reading than that adopted by Cook.

Most of the cases relied on by the government in its appeal consider the proper method of calculating drug quantity under section 2D1.1. See United States v. Andersen, 940 F.2d 593, 597-98 (10th Cir. 1991)10; United States v. Macklin, 927 F.2d 1272, 1281-82 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 146, 116 L.Ed.2d 112 (1991); United States v. Havens, 910 F.2d 703, 704-06 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991). Each of these cases permits district courts to consider the amount of drugs that the defendant could produce in order to determine the defendant’s base offense level under section 2D1.1. The government urges that the district court erred by refusing to consider the amount of drugs Mr. Voss could have produced from the chemicals seized in Tulsa. While we agree with the dissent that the district court’s refusal to consider the producible quantity was improper under section 2D1.1, the district court’s application of section 2D1.1 itself was erroneous.

C.

Once a court determines that section 2D1.1 does not apply, it must search for the most analogous guideline. Guidelines, § 2X5.1 (court to use most analogous guideline when no guideline has been expressly promulgated). Given the strictures of section 2X1.1 (conspiracy sentence requires use of guideline for object offense), and the failure of the guideline most readily applicable to drug crimes to cover the described offense, we have concluded that there is no sufficiently analogous guideline. “If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control.” Guidelines, § 2X5.1. That section instructs: “In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2).” 11 18 U.S.C. § 3553(b) (1988). We therefore must remand to the district court for sentencing in accordance with section 3553(b).

We VACATE Mr. Voss’s sentence and REMAND for resentencing in accordance with this opinion.