United States of America, Plaintiff-appellee, v. David Gregory Surasky, Defendant-appellant, 974 F.2d 19 (5th Cir. 1992)

Defendant, David Gregory Surasky, pled guilty to possession of 1348 grams of phenylacetic acid with intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(d). At sentencing, the district court--adopting the guideline¹  calculations contained in the presentence report (PSR)--sentenced Surasky to 120 months imprisonment. Surasky appeals, maintaining that the district court erred in adopting these calculations. Finding no plain error, we affirm.

* Officers of the Cedar Park Police Department executed a search warrant on Surasky's residence and seized 1348 grams phenylacetic acid, along with 4 grams methamphetamine. Surasky was charged by superseding information, and pled guilty to possession of a listed chemical, phenylacetic acid, with intent to manufacture a controlled substance, methamphetamine, in violation of 21 U.S.C. § 841(d).

At sentencing, the district court converted the 1348 grams phenylacetic acid possessed by Surasky to 674 grams phenylacetone, and in turn converted that amount to 505.5 grams methamphetamine²  in order to arrive at Surasky's base offense level of 28.³  Surasky made no objection to these calculations at trial. This base offense level, combined with Surasky's criminal history category of III, authorized a guideline range of 97 to 121 months. See U.S.S.G. Ch. 5, Pt. A. The district court imposed the statutory maximum sentence of 120 months. See 21 U.S.C. § 841(d).

II

Surasky contends that the district court erred in arriving at a base offense level of 28. In particular, Surasky complains that the district court erroneously used the DEA formula contained in the PSR⁴  to convert phenylacetic acid to methamphetamine. Surasky argues that the district court should have used the Sentencing Guidelines' Drug Equivalency Tables to convert phenylacetic acid to cocaine or heroin, which would have resulted in a base offense level of 26. See U.S.S.G. § 2D1.1(c) and comment. (n. 10).

Because Surasky failed to raise this objection at trial, we review the district court's ruling only for "plain error."⁵  See United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991), cert. denied, --- U.S. ----, 111 S. Ct. 2032, 114 L. Ed. 2d 117 (1991) (allegedly erroneous determination of defendant's criminal history, not raised at trial, reviewed only for plain error); United States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990) (where no objection was made at trial, alleged misapplication of sentencing guidelines reviewed only for plain error). "There is no hard and fast rule for determining whether error is plain; the determination turns upon the facts of a particular case." United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980), cert. denied, 450 U.S. 920, 101 S. Ct. 1369, 67 L. Ed. 2d 348 (1981). However, this Court has stated repeatedly that "plain error" is "error so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of [the] judicial proceedings and result in a miscarriage of justice." Lopez, 923 F.2d at 50; United States v. Bi-Co Pavers, 741 F.2d 730, 735 (5th Cir. 1984); United States v. Howton, 688 F.2d 272, 278 (5th Cir. 1982). Plain error is "both obvious and substantial." Gerald, 624 F.2d at 1299.

Surasky does not take issue with the first component of the district court's calculations--the conversion of 1348 grams phenylacetic acid to 674 grams phenylacetone. See Reply Brief of Appellant at 11. Surasky's complaint is directed at the second step--the conversion of 674 grams phenylacetone to 505.5 grams methamphetamine. See id. Surasky argues that the district court--once it determined that 1348 grams phenylacetic acid was equivalent to 674 grams phenylacetone--should have applied the Drug Equivalency Tables rather than the DEA formula in order to arrive at a base offense level.⁶  Had the district court done so, it would have arrived at a base offense level of 26⁷  and a corresponding guideline range of 78-97 months.⁸ 

Neither the Sentencing Guidelines, nor any other authority, explicitly required the district court to apply the method proposed by Surasky. The Sentencing Guidelines did not explicitly provide any method of assigning a base offense level for possession of phenylacetic acid, because that substance was listed in neither the Drug Quantity Table nor the Drug Equivalency Tables.⁹  Furthermore, Surasky failed to suggest at sentencing that the district court should adopt the method of computation which Surasky now advocates on appeal. Because the Sentencing Guidelines do not require use of the Drug Equivalency Tables, the district court's failure to do so did not amount to "error so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of [the] judicial proceedings and result in a miscarriage of justice."¹⁰  Lopez, 923 F.2d at 50.III

Finding no plain error, we AFFIRM.