Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1990)

MEMORANDUM^** 

Mark Allan Campbell appeals his conviction and sentence under the United States Sentencing Guidelines ("Guidelines") for conspiracy to possess and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 2, 841(a) (1) and 846. Campbell contends that the Guidelines violate due process and the principles of international human rights by ignoring his individual characteristics in sentencing. Campbell also argues that the district court erred by including the amount of ephedrine involved in the offense when calculating his base offense level, and that the multiplier converting ephedrine to methamphetamine was arbitrary. In addition, Campbell argues that his wife did not voluntarily consent to the search of their house and that the conviction should be reversed. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Voluntary Consent to Search

Campbell argues that the government failed to establish that his wife's consent to search their residence was voluntary. He contends that "the evidence raised the issue of voluntariness and was left unresolved by the lower court." Appellant's Opening Brief at 19.

Nevertheless, at the hearing on Campbell's motion to suppress evidence, Campbell expressly conceded the question of consent by stating, " [before speaking to the witness,] I wasn't quite sure as to whether there was consent. I am not arguing the issue of spousal consent at this point in time." RT 4/16/90 at 19-20. Campbell's concession and subsequent failure to argue the consent issue operates to waive his right to raise it now. See United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987) (failure to raise issue in support of motion to suppress constitutes waiver).

Individualized Sentencing

Campbell contends that the Guidelines, as applied to him, violate his right to due process and the policy of international human rights tribunals. He argues that the "total and apparently inhumane disregard for the individual's characteristics" contradicts the Constitution's respect for the individual and erodes the contribution provided by jurists.¹ 

This court has repeatedly held that the Guidelines does not violate due process. See United States v. Brady, 895 F.2d 538, 540 (9th Cir. 1990); United States v. Litteral, 910 F.2d 547, 551 (9th Cir. 1990).²  The Guidelines allow the sentencing court to consider individual characteristics when sentencing within the prescribed guideline range. See Brady, 895 F.2d at 543.

Here, Campbell argues that the district court totally ignored evidence of Campbell's "mitigating factors." Nevertheless, the district court allowed Campbell to introduce his background information and circumstances. The district court rejected the government's recommendation of a mid-range sentence and imposed a sentence at the low end of the guideline range, stating, "I think the 235 months is reasonable and appropriate under all the circumstances of this case." RT 9/17/90 at 9 (emphasis added). Facially and as applied, the Guidelines do not violate Campbell's constitutional right to due process. See Brady, 895 F.2d at 544.

Quantity of Controlled Substance

Campbell argues that it was inherently unfair to include the 140 pounds of ephedrine in determining his base offense level. He asserts that he should not be punished for the government's conduct.

For purposes of determining the base offense level, the weight under negotiation in an uncompleted drug transaction should be used. U.S.S.G. Sec. 2D1.4, comment. (n. 1). " [T]he offense level for a conspiracy is determined by the amount that a defendant conspired to sell...." United States v. Alvarez-Cardenas, 902 F.2d 734, 736 (9th Cir. 1990).

Here, Campbell agreed to provide four pounds of methamphetamine and $22,000 in exchange for 140 pounds of ephedrine.³  Accordingly, the probation officer determined Campbell's base offense level of 38 by combining the amount of methamphetamine Campbell possessed with the 140 pounds of ephedrine he had agreed to receive in the trade. The district court adopted the PSR's recommendation.

The district court did not err by incorporating the amount of ephedrine in Campbell's base offense level calculation because it was part of the negotiated transaction. See Alvarez-Cardenas, 902 F.2d at 736.

Conversion factor for Ephedrine to Methamphetamine

Campbell argues that the Guidelines do not define ephedrine as a controlled substance and that the conversion ratio between ephedrine and methamphetamine was arbitrarily selected, in violation of due process.

Ephedrine is a chemical used in the manufacture of methamphetamine. According to the PSR, a DEA chemist opined that 10 pounds of ephedrine could produce 8 pounds of methamphetamine. Accordingly, the probation department converted the ephedrine to its methamphetamine equivalent in weight by applying a conversion ratio of 0.8 for every pound of ephedrine. The district court adopted this recommendation.

Campbell did not below, nor does he now, explain why he believes the ratio is arbitrary or unreasonable. The ratio was not plucked from thin air, rather, it was derived by a DEA chemist. The district court did not err by adopting the conversion ratio. See United States v. Putney, 906 F.2d 477, 479 (9th Cir. 1990) (evidence on capacity of methamphetamine lab proper for determining base offense level).

AFFIRMED.