Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1991)

MEMORANDUM^** 

Carl D. Terpak pleaded guilty to charges of conspiracy to manufacture methamphetamine, 21 U.S.C. § 841(a) (1) (1988), and felony possession of a firearm, 18 U.S.C. § 922(g) (1988). He appeals the imposition of sentence, contending that (1) the determination of the quantity of drugs seized is not supported by a preponderance of the evidence; (2) his due process rights were violated when he did not timely receive an amended presentence report; and (3) the district court failed to consider individualized factors before imposing sentence. We reject these contentions and affirm.

DISCUSSION

"The sentencing guidelines require a district court to determine the quantity of controlled substance involved and to base sentencing in part on this determination." United States v. Upshaw, 918 F.2d 789, 790 (9th Cir. 1990) (citing Guideline Sec. 2D1.1(a) (3)). That determination in this case required the district court to calculate "the amount of methamphetamine involved in the crime for the purpose of fixing the base level offense under the sentencing guidelines." United States v. Putney, 906 F.2d 477, 478 (9th Cir. 1990). Because only precursor chemicals were seized, the district court was required to "us [e] the capacity of the laboratory to determine the base level." Id. at 480.

Terpak contends that the government failed to prove by a preponderance of the evidence the capacity of his laboratory. He contends that the lab's efficiency rate was only 60%, not 80% as the government contends, and, accordingly, the gross weight of the precursor chemicals should have been reduced by 40% instead of 20%. He also contests the assertion that officers seized nine pounds of precursor chemicals. The significance of Terpak's challenges, if successful, would be to reduce his base offense level under the Sentencing Guidelines.

We conclude that the government met its burden of proving the facts necessary to establish the base offense level. See United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990) (government bears the burden of proving by a preponderance of the evidence the facts necessary to determine the base offense level). The government did so by submitting to the court the DEA reports setting forth the gross amounts of seized precursor chemicals, and by offering the testimony of a DEA agent to establish that the typical yield of a methamphetamine lab is 80%. When faced with conflicting evidence, a district court is required to resolve the conflict and make necessary findings of fact. See Upshaw, 918 F.2d at 791. The district court here properly performed that task. See id. (upholding a district court's resolution of conflicting evidence regarding the production capacity of methamphetamine lab).

We have noted that the sentencing guidelines were intended to provide "procedural safeguards to satisfy the demands of the due process clause." United States v. Sanchez, 908 F.2d 1443, 1446 (9th Cir. 1990) (internal quotation omitted). One such procedural safeguard is set forth in 18 U.S.C. § 3552(d) (1988), which mandates that a defendant receive the presentence report a minimum of ten days in advance of sentencing. Id. Terpak contends that this mandate was violated when he received an amended presentence report only seven days prior to sentencing.

We reject that contention. Even assuming that the statute applies to amended presentence reports, Terpak cannot show that he was prejudiced by the late receipt of the amended report. See United States v. Turner, 898 F.2d 705, 714 (9th Cir.) (defendant must demonstrate prejudice), cert. denied, 110 S. Ct. 2574 (1990). Terpak had ample opportunity to respond to the amended presentence report and did file numerous objections. Those objections were reviewed and resolved by the court during the sentencing hearing. We conclude that " [i]n the absence of any prejudice, the late delivery of the report is harmless error." Id.

Terpak argues that the district court failed to consider his unique circumstances. We disagree. The record clearly shows that the district court considered Terpak's unique circumstances and took them into account in sentencing. See RT 114-15 (crediting Terpak's claims of duress and post-traumatic stress disorder). Since the court sentenced Terpak to the minimum term within the applicable guideline range, Terpak may be arguing that the court should have exercised its discretion to depart downward from the guideline range. That argument, however, is not reviewable on appeal. See United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990).

AFFIRMED.