United States of America, Plaintiff-appellee, v. James Armin Fowner, Defendant-appellant.united States of America, Plaintiff-appellee, v. Jeannie L. Fowner, Defendant-appellant, 947 F.2d 954 (10th Cir. 1991)

These are appeals by co-defendants tried under the same indictment. The facts relating to each appeal are the same as are the basic contentions of each defendant.

No. 90-2215

Appellant James Fowner appeals his 30-month sentence under the United States sentencing guidelines following his plea of guilty to one count of manufacturing more than 100 grams of a mixture containing a detectable amount of methamphetamine and aiding and abetting. He claims that the district court applied an incorrect base offense level and violated his rights to due process and equal protection when it included waste materials containing detectable amounts of P sub2 P in calculating his sentence under U.S.S.G. § 2D1.1. We affirm.

Appellant and two co-defendants were charged with a series of drug and gun related offenses under a twelve-count superseding indictment. Appellant pled guilty to Counts III and VIII of the superseding indictment. Count III, which is the focus of this appeal, charged appellant with manufacturing more than 100 grams of a mixture containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (A), and aiding and abetting, in violation of 18 U.S.C. § 2. Count VIII charged appellant with carrying and using a firearm to facilitate the drug trafficking crime in violation of 18 U.S.C. § 924(c) (1). Appellant does not appeal the mandatory term of five years' imprisonment that he received for Count VIII.

In exchange for appellant's pleas of guilty to Counts III and VIII of the superseding indictment, the government agreed to dismiss the remaining counts. Because of appellant's substantial assistance to the government in the prosecution of other cases, the government further agreed to file a motion for downward departure under U.S.S.G. § 5K1.1.

At the time of his arrest, appellant was operating a methamphetamine laboratory on his property. 293 grams of marijuana, 79.7 grams of methamphetamine and two semi-automatic pistols were seized. In addition to the controlled substances, approximately 24 gallons of a liquid mixture containing detectable amounts of P sub2 P were recovered.

In its calculation of appellant's base offense level, the Probation Office included the firearms, the controlled substances and the weight of the entire 24-gallon mixture, which resulted in a base offense level of 36. This figure was reduced by two points for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. With a base offense level of 34 at criminal history category II, the sentencing guideline range was 168-210 months' imprisonment.

Appellant objected to the Probation Office's inclusion of the weight of the entire 24-gallon mixture because he claimed it was "waste" material which was not meant to be ingested or sold. If the 24 gallons were omitted, he argued that his base offense level, with the adjustment for acceptance of responsibility, should be 16. With a criminal history category of II, his sentencing guideline level would be 24 to 30 months.

At sentencing, the district court noted his objection and heard testimony on the issue of "waste" from Dr. Cary Morrow, a chemist. Dr. Morrow testified that in his opinion, the 24 gallons of liquid was waste but conceded that additional P sub2 P could be recovered if the solution was left to settle or reprocessed with additional chemicals. At the conclusion of Dr. Morrow's testimony, the district court stated that:

"The definition of quote, waste, end quote, is something that troubles me because in the concept of, any concept of waste, I assume economic considerations enter into it, or maybe even other considerations. Some people might throw away as waste an item where other people would not consider it waste and so on,....

....

"I don't know what waste is in the context of this case. We have a solution wherein certain chemicals were found. Whether or not it's waste or not waste is something that I don't think I have to address."

Vol. III at 52-53. In rejecting appellant's argument and concluding that the weight of the entire liquid mixture must be included for purposes of sentencing, the district court relied on the commentary to U.S.S.G. § 2D1.1 and two Fifth Circuit cases. See United States v. Mueller, 902 F.2d 336 (5th Cir.) (entire weight of mixture containing detectable amounts of the methamphetamine was properly included for purposes of sentencing); United States v. Butler, 895 F.2d 1016 (5th Cir.) (same).

In sentencing appellant, the district court acknowledged that with a base offense level of 34 at a criminal history category of II, appellant's sentencing guideline was 168-210 months. Because the government had filed a motion for downward departure under U.S.S.G. § 5K1.1, however, the district court sentenced appellant to a term of 30 months' imprisonment.

In his brief, appellant concedes that the 30-month imprisonment term falls within the guideline range that he contends is applicable for his offense; however, he submits that the district court should have considered the motion for a downward departure from the 24- to 30-month guideline range rather than the 168-210 months' guideline range.

On appeal, appellant challenges the district court's inclusion of the 24-gallon liquid mixture in the calculation of his base offense level. He claims that the term "mixture or substance" referred to in the commentary accompanying U.S.S.G. § 2D1.1 does not contemplate the inclusion of waste materials containing detectable amounts of a controlled substance and such an application is contrary to the Congressional intent of a "market-oriented" approach in setting punishments. We review a challenge to the district court's interpretation of the sentencing guidelines de novo. United States v. Agbai, 930 F.2d 1447, 1448 (10th Cir.).

Pursuant to the sentencing guidelines, the base offense level is calculated from the Drug Quantity Table found in § 2D1.1(c). In interpreting and applying the sentencing guidelines, we consider the commentary to be essential. United States v. Rutter, 897 F.2d 1558, 1561 (10th Cir.). The commentary to U.S.S.G. § 2D1.1 provides:

"The scale amounts for all controlled substances refer to the total weight of the controlled substance. Consistent with the provisions of the Anti-Drug Abuse Act, if any mixture of a compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be considered in measuring the quantity."

U.S.S.G. § 2D1.1. We have held that for purposes of sentencing under the Drug Quantity Table, the weight of the mixture containing a controlled substance is the entire amount of the mixture. See United States v. Callihan, 915 F.2d 1462, 1463 (10th Cir.).

In United States v. Dorrough, 927 F.2d 498 (10th Cir.), we were presented with a similar issue. In Dorrough, the police seized 94 kilograms of an amphetamine mixture before the manufacturing process had been completed. At sentencing, the defendant presented evidence that the most P sub2 P which could have been produced from the liquid seized was 8.85 kilograms. Dorrough argued that only the 8.85 kilograms should have been considered in calculating his sentence and that the remaining liquid from the manufacturing process was "waste." Finding support in the commentary to U.S.S.G. § 2D1.1, we held that the district court properly considered the weight of the entire 94 kilograms because the mixture contained a detectable amount of P sub2 P. Id. at 502.

We agree with the district court and conclude that a determination of whether the liquid mixture was waste and intended to be discarded need not be made. Such an interpretation would require needless speculation which is not contemplated by the sentencing guidelines. In this case, the evidence showed that there was a detectable amount of P sub2 P in the 24-gallon liquid mixture. Under U.S.S.G. § 2D1.1 and the above-cited case law, so long as the mixture contains a detectable amount, the entire weight of the mixture is included for purposes of calculating the base offense level. Therefore, we find that the district court properly included the weight of the entire 24-gallon liquid mixture for purposes of sentencing appellant.

Appellant's attempt to distinguish Dorrough from the present case is unpersuasive. Appellant argues that in Dorrough the weight of the entire mixture was properly included because the manufacturing process had not been completed when the liquid was seized. In his case, however, appellant claims that the manufacturing process was complete and the remaining mixture was "waste"; therefore, the weight of the entire liquid mixture should not be included. We reject his argument for the following reasons.

First, we are not convinced that the manufacturing process was complete or that the 24-gallon liquid mixture constituted "waste." As the district court correctly pointed out, the concept of waste is not easily defined. Although we can only speculate as to why appellant would have kept over 24 gallons of liquid which was allegedly "waste" material, we are mindful of the chemist's testimony that if the mixture was allowed to settle, additional P sub2 P could be recovered.

The chemist also testified that it would be possible to extract more P sub2 P from the liquid mixture if the chemist was skilled and possessed the proper chemicals. Although the chemicals required were not present in appellant's laboratory at the time of the seizure, we cannot eliminate the possibility that he was intending to either purchase the additional chemicals and attempt to perform the process himself or sell the remaining liquid mixture to a chemist with the proper chemicals. While this is sheer conjecture on our part, appellant's argument would have the district court perform this same analysis in determining whether the mixture or substance seized was intended for consumption or disposal.

Based upon the chemist's testimony, the manufacturing process was not necessarily complete at the time of the seizure. Therefore, appellant was in essentially the same position of the manufacturing process as Dorrough and the facts of the two cases become indistinguishable.

Lastly, appellant would have us differentiate the two cases on the timing of the seizure in relation to the manufacturing process. We do not believe that the timing of the seizure should dictate the severity of the sentence and conclude that the adoption of such a distinction would create greater disparities among sentences.

Although we agree with appellant that Congress created the Anti-Drug Abuse Act intending to employ a "market-oriented" approach in setting punishments, United States v. Mendes, 912 F.2d 434, 439 (10th Cir.), his argument of marketability is foreclosed by our findings above. Appellant could have skimmed additional P sub2 P off the top of the liquid mixture, reprocessed the liquid mixture, or sold the entire liquid mixture to a chemist capable of reprocessing the liquid mixture. Given the potential saleability of the entire liquid mixture or at least part of it, we cannot say that the inclusion of the weight of the entire mixture was contrary to the "market-oriented" approach intended by Congress.

Appellant also makes a constitutional challenge to the district court's inclusion of the weight of the entire liquid mixture. He claims that the waste material does not fit within the definition of any "mixture or substance containing a detectable amount"; therefore, it violates the Fifth Amendment guarantees of due process and equal protection.

Based upon our findings above and for the reasons articulated in United States v. Baker, 883 F.2d 13, 15 (5th Cir.), we conclude that the inclusion of the total weight of the mixture is reasonably related to a legitimate governmental interest and not violative of the Fifth Amendment.

Accordingly, the judgment of the District Court for the District of New Mexico is AFFIRMED.

No. 90-2223

Appellant Jeannie Fowner appeals from her sentence of five years' probation under the United States sentencing guidelines following her plea of guilty to one count of manufacturing more than 100 grams of a mixture containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (A). She claims that the district court applied an incorrect base offense level and violated her rights to due process and equal protection when it included waste materials containing detectable amounts of P sub2 P in calculating her sentence under U.S.S.G. § 2D1.1. We affirm.

Appellant was indicted along with two co-defendants in a twelve-count superseding indictment alleging various drug trafficking and firearm violations. In exchange for her plea of guilty to Count III, the remaining counts were dismissed. Because of appellant's substantial assistance to the government in the prosecution of other cases, the government agreed to file a motion for downward departure under U.S.S.G. § 5K1.1.

At the time of her arrest, appellant was involved in the operation of a methamphetamine laboratory located on her property and co-defendant's. 293 grams of marijuana, 79.7 grams of methamphetamine and two semi-automatic weapons were seized. In addition to the controlled substances, approximately 24 gallons of a liquid mixture containing detectable amounts of P sub2 P were recovered.

In its calculation of appellant's base offense level, the Probation Office included the two firearms, the controlled substances and the weight of the entire 24-gallon liquid mixture in reaching a base offense level of 36. This figure was reduced by two points for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Although the firearms were found on her property, the Probation Office recommended a two-point reduction because she did not have possession of the firearms at the time of the arrest. With a base offense level of 32 at criminal history category I, the sentencing guideline range was 121-151 months. The statutory minimum for ths offense is ten years' imprisonment.

Appellant objected to the Probation Office's inclusion of the entire 24-gallon liquid mixture contending that it was "waste" product. At the sentencing hearing, the district court noted her objection and heard testimony on the issue of "waste" from Dr. Cary Morrow, a chemist. At the conclusion of Dr. Morrow's testimony, the district court rejected appellant's argument and concluded that the weight of the entire liquid mixture must be included for purposes of sentencing under U.S.S.G. § 2D1.1.

In sentencing appellant, the district court recognized that the guideline range was 121-151 months; however, it granted the government's motion for a downward departure and sentenced appellant to a five-year term of probation with certain conditions.

On appeal, appellant challenges the district court's inclusion of the weight of the 24-gallon liquid mixture in the calculation of her base offense level. She claims that the term "mixture or substance" referred to in the commentary accompanying U.S.S.G. § 2D1.1 does not contemplate the inclusion of waste materials containing detectable amounts of a controlled substance. Such an application, she argues, is contrary to the Congressional intent of a "market-oriented" approach in setting punishment and is violative of the Fifth Amendment.

Before reviewing the merits, we must address the government's contention that we are without jurisdiction to entertain this appeal. Appellant invokes 18 U.S.C. § 3742(a) as the jurisdictional basis for this appeal. The government claims that we lack jurisdiction because appellant's appeal does not fit within any of the four subsections under 18 U.S.C. § 3742(a) and there is no way to logically challenge the district court's calculations which led to the probated sentence. We disagree.

18 U.S.C. § 3742(a) provides that a defendant may appeal a sentence only if it:

"(1) was imposed in violation of law;

"(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

"(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range or includes a more limiting condition of probation ...; or

"(4) was imposed for an offense for which there is no sentencing guideline...."

18 U.S.C. § 3742(a). It is clear from appellant's claim of error that she is challenging the district court's interpretation and application of the guidelines; therefore, subsection (2) gives us jurisdiction.

While it is true that appellant was only sentenced to a term of probation with no incarceration, the Sentencing Reform Act recognizes probation as a sentence in itself. U.S.S.G., Ch. 7, Pt. A, 2(a) (citing 18 U.S.C. § 3561). Appellant would be placed in an unusual situation if the district court subsequently finds that she violated the conditions of her probation. If this occurs, the district court has the following options: it "may continue probation, with or without extending the term or modifying the conditions, or revoke probation and impose any other sentence that initially could have been imposed." Id.

Unless appellant violates her probation, the guideline range of her offense may not now be significant. However, since the possibility exists that she may violate her probation and the district court decides to revoke her probation and impose sentence, we must on this appeal review her claim to ensure that the guideline range was appropriately calculated.

The evidence showed that there was a detectable amount of P sub2 P in the 24-gallon mixture. See discussion, above, in No. 90-2215. Under U.S.S.G. § 2D1.1, so long as the mixture contains a detectable amount, the entire weight is included for purposes of calculating the base offense level. With a base offense level of 32 at criminal history category I, the sentencing guideline range is 121-151 months.

For the reasons articulated in United States v. Fowner, No. 90-2215, we conclude that appellant's guideline range of 121-151 months was appropriately calculated and not violative of the Fifth Amendment.

Accordingly, the judgment of the District Court for the District of New Mexico is AFFIRMED in this appeal.