Unpublished Disposition, 917 F.2d 1307 (9th Cir. 1990)

MEMORANDUM^** 

This is an appeal from a sentence imposed on appellant Roderick Sprague (Sprague) pursuant to his conviction for manufacturing methamphetamine in violation of 21 U.S.C. § 841(a) (1). Sprague was sentenced under the Sentencing Reform Act of 1984 (18 U.S.C. §§ 3553-3559) and the provisions of the United States Sentencing Commission Sentencing Guideline Manual (Guidelines).

Sprague's counsel, finding no appealable issues, filed an opening brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967). Sprague exercised his right under Anders to file a pro se brief. Sprague's counsel, however, then filed a supplemental brief indicating that Sprague's arguments were well taken, rendering her Anders motion to withdraw moot. Therefore, we review this case on the merits, considering the arguments raised in Sprague's counsel's briefs and Sprague's pro se brief.

FACTS

On January 27, 1989, agents executed a search warrant on a houseboat where Sprague and Laura Kimbel (Kimbel) were found. In the houseboat, agents discovered a methamphetamine laboratory, three solutions contained in chemical bottles, pay-owe sheets, a cellular phone, a loaded .45-caliber semiautomatic pistol, a .233-caliber rifle, two square inches of military plastic C4 explosive, and approximately 13 feet of military detonation cord. Agents also executed a search warrant on a van parked near the houseboat wherein they discovered a loaded pump shotgun.

On March 24, 1989, appellant Robert Sprague (Sprague) was charged in a seven-count indictment: Count 1: conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) (1), 846; Count 2: knowing and intentional manufacturing of methamphetamine, in violation of 21 U.S.C. § 841(a) (1); Count 3: use of firearms, in violation of 18 U.S.C. § 924(c) (1), 846; Counts 4 and 5: storing stolen explosives in violation of 18 U.S.C. § 842(h); Counts 6 and 7: improper storage of explosives in violation of 18 U.S.C. § 842(j). Sprague pled guilty to and was convicted on Count 2.

In the August 2, 1989 presentence report, Sprague was given a total offense level of 32, derived from a base offense level of 32, a two-level enhancement for possession of dangerous weapons pursuant to U.S.S.G. Sec. 2D1.1(b) (a), and a two-level reduction for acceptance of responsibility. Sprague was given a criminal history score of 5, placing him in a criminal history category of III. Based on a total offense level of 32 and a criminal history category of III, the district court, pursuant to the Guidelines, sentenced Sprague to 151 months in prison with a supervised release of five years.

DISCUSSION

Sprague argues that the district court erred by using estimates of the quantity of methamphetamine seized in calculating his sentence. At the sentencing hearing, however, Sprague did not object to the presentence report. In fact, Sprague withdrew earlier objections he had made. Sprague's failure to object at the sentencing hearing constitutes a waiver of his right to later appeal the judge's sentencing decision. United States v. Cloud, 872 F.2d 845, 857 (9th Cir. 1989); United States v. Grewal, 825 F.2d 220, 223 (9th Cir. 1987). Sprague is therefore barred from raising this issue on appeal. Moreover, even if this issue were appealable, Sprague would not prevail because the district court was expressly authorized by the Guidelines to use estimates in determining the amount of methamphetamine seized. U.S.S.G., application note 12 of Sec. 2D1.1, application note 2 of Sec. 2D1.4. Furthermore, as discussed below in our ineffective assistance of counsel analysis, any other arguments that the district court erroneously sentenced Sprague are also without merit.

Sprague argues that his trial counsel's failure to make various objections to the presentence report constitutes ineffective assistance of counsel. Ordinarily, a petition for habeas corpus, and not a direct appeal, is the proper avenue for relief for an ineffective assistance of counsel claim. United States v. Pope, 841 F.2d 954, 958 (9th Cir. 1988), United States v. Sanclemente-Bejarno, 861 F.2d 206, 211 (9th Cir. 1988); United States v. Popoola, 881 F.2d 811, 813 (9th Cir. 1989); United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989). A habeas corpus proceeding is preferable because "it permits the defendant to develop a record as to what counsel did, why it was done, and what, if any, prejudice resulted." Pope, 841 F.2d at 958 (citing United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (per curiam)). In the instant case, however, there is no need for any further development of the record. Accordingly, we determine the ineffective assistance of counsel claim on direct appeal.

To prevail on an ineffective assistance of counsel claim, an appellant must show that counsel's performance was deficient and that such deficient performance prejudiced the defense. People of Territory of Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984). Here, the following objections that Sprague contends counsel should have made would not have altered his sentence:

1. Sprague argues that the weights used in the presentence report may have included the weight of the containers. However, Sprague offers no evidence to support his contention, nor have we found support for this contention in the record. In fact, the weight of the containers was almost certainly not included in the weight of the methamphetamine, because, as Sprague notes, the estimations were visual.

2. Sprague argues that different liquid chemicals have different weights per ounce. Therefore, a liquid cannot be converted accurately to kilogram weight by the method provided in the Guidelines' Measurement Conversion Table unless the precise chemical content is known. However, the drug conversion table in the Guidelines was included as a "tool to facilitate conversion." U.S.S.G., Sec. 2D1.1, application note 10. Thus, its purpose is to avoid an intricate chemistry analysis by judges, precisely what Sprague expects here.

3. Sprague argues that the judge should not have used visual measurements to estimate the amount of methamphetamine. However, the Guidelines authorize such estimations. Application note 12 of section 2D1.1 states that "if the amount seized does not reflect the scale of the offense, see Application Note 2 of the Commentary to section 2D1.4." Application note 2 of section 2D1.4 provides:

Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance.

Thus, the trial judge was acting in according with the Guidelines when he estimated the amount of methamphetamine.

4. Sprague argues that his laboratory only had the capacity to produce one pound of methamphetamine at a time and that it had only been in operation one time. It seems highly improbable that Sprague would have exerted the effort necessary to make a laboratory if he only intended to use it one time. This is especially true when considering that Sprague had installed wiring and switches in his houseboat specifically designed to enhance the productive capability of the lab on the boat. Furthermore, Sprague's counsel did object to the government's assertion that the laboratory was sophisticated. Additionally, the Guidelines state that the judge may take into consideration the size or capability of any laboratory involved, not that he must do so. U.S.S.G. application note 12 of section 2D1.1, application note 2 of section 2D1.4. Thus, even if the judge did not consider the capacity of the laboratory, he was not in violation of the Guidelines.

5. Sprague correctly notes that, according to the measurement conversion table in the Guidelines, 32 liquid ounces should have been converted to .9 kilograms, rather than 1.9 kilograms. However, this error would not have changed Sprague's sentence because, even if the weight is decreased by one kilogram, the total still falls within the same 5 to 15 kilogram range requiring a base offense level of 32. U.S.S.G. at page 2.41.

6. Sprague argues that section 2D1.1 of the Guidelines (footnote on page 2.45) requiring the weight of a controlled substance to include the weight of any mixture or substance containing a detectable amount of the controlled substance is contrary to the intent of Congress and the purpose of the Sentencing Commission. The purpose of the Sentencing Commission, author of the guidelines, is to "establish sentencing policies and practices ... by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes." U.S.S.G., Introduction, subpart 1. Section 2D1.1, by explicitly stating the chemicals to be included in determining the weight of narcotics, furthers, rather than hinders, the purpose of the Guidelines.

Sprague argues that section 2D1.1 violates the Fifth Amendment equal protection guarantee because it results in greater sentencing for individuals found with mixed substances than those found with substances in their pure form. An equal protection claim requires that appellant is either a part of a suspect class or that his fundamental rights are involved. Giannini v. Real, No. 89-55466, slip op. at 9038 (9th Cir. May 8, 1990). Methamphetamine manufacturers are not a suspect class nor is sentencing a fundamental right. Thus, the requirements of Sec. 2D1.1 do not violate equal protection.

7. Sprague argues that his trial counsel should have requested an independent weighing of the methamphetamine. As Sprague admits in his pro se brief, counsel failed to obtain an independent weighing because, "she thought that they would find more than what was actually there." This was a sound tactical decision by Sprague's counsel, especially when considered in light of the strong presumption that counsel exercised reasonable professional judgment. Strickland v. Washington, 446 U.S. 668, 690 (1984).

Because the objections Sprague argues his trial counsel should have raised lack merit, counsel's decision not to raise these issues actually constitutes effective advocacy. Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Furthermore, because these objections would not have altered Sprague's sentence, Sprague cannot establish the prejudice showing required for an ineffective assistance of counsel claim. People of Territory of Guam v. Santos, 741 F.2d at 1169.

AFFIRMED.