Unpublished Disposition, 914 F.2d 264 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 264 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Stephen Tyrus COBB, Defendant-Appellant.

No. 89-30180.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 11, 1990.* Decided Sept. 13, 1990.

Before WRIGHT, SCHROEDER and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM** 

A federal grand jury returned a four-count indictment against Stephen Cobb for alleged methamphetamine distribution and manufacturing. He pleaded guilty to count I, possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (B).

The district court sentenced him to 77 months imprisonment under the Sentencing Guidelines. It computed the base offense level by referring to the drug quantity table. See United States Sentencing Comm'n, Guidelines Manual Sec. 2D1.1(c) (Nov. 1, 1989). First, it determined the quantity of drugs applicable to count I on which he pleaded guilty. [RT 6/12/89, at 12; 14] It added to this amount the quantity of drugs applicable to count III of the indictment, attempting to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a) (1), (b) (1) (A) and 846. It set the amount of drugs in count III as one pound of methamphetamine, based on a stipulation that the chemicals found by agents at a storage facility rented by Cobb were sufficient to produce this quantity of the drug. [Id. at 4-5; 14]

His adjusted offense level was 24, and based on a criminal history category of IV, this computation resulted in a sentencing range of 77 to 96. He was sentenced at the low end of this range.

Cobb appeals his sentence.

ANALYSIS

His first argument is that it was improper for the court to include the amount of drugs applicable to count III in computing the total drug quantity and his base offense level.1  This argument is foreclosed by our recent decision in United States v. Putney, 906 F.2d 477 (9th Cir. 1990).

In computing the base offense level in drug offenses, the guidelines commentary provides:

Types and quantity of drugs not specified in the count of conviction may be considered in determining the offense level. See Sec. 1B1.3(a) (2) (Relevant Conduct). If the amount seized does not reflect the scale of the offense, see Application Note 2 of the Commentary to Sec. 2D1.4....

Guidelines Sec. 2D1.1, Application Note 12.2  Application Note 2 to Sec. 2D1.4, which applies to attempts and conspiracies, provides:

Where there is no drug seizure or the amount does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination, the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved.

Our decision in Putney applied these provisions in a case involving facts similar to this case. The defendant there, like Cobb, pleaded guilty only to violating Sec. 841, although he had also been indicted for attempt under Sec. 846. Putney, slip op. at 6571. We found that the facts of that case fell within the language "does not reflect the scale of the offense" in the application note under Sec. 2D1.1, and that "the small amount seized [did] not indicate the amount made, nor the amount that could have been made, had the police not discovered the laboratory." Id. at 6572. We concluded that the court had "properly applied the sentencing guidelines in using the capacity of the laboratory to determine the base offense level." Id.

The same is true here. In executing the search warrant at the storage unit, agents seized laboratory equipment and various chemicals which could be used to produce methamphetamine. The court properly found that the quantity of methamphetamine seized did not reflect the scale of the offense under Sec. 2D1.1. It therefore considered the capacity of the laboratory, which Cobb stipulated to be one pound of the drug, in computing the base offense level. There was no error.

Because Cobb's sentence under the guidelines, 77 months, exceeded the five-year mandatory minimum sentence, we need not consider his argument that 21 U.S.C. § 841(b) (1) (B) (viii) does not apply to his offense.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

He relies on this court's opinion in United States v. Restrepo, 883 F.2d 781 (9th Cir. 1989). Since the briefs were filed in this case, this opinion has been withdrawn, and replaced by a new opinion with a different holding. United States v. Restrepo, 903 F.2d 648 (9th Cir. 1990). Restrepo no longer supports his position

 2

At the time Cobb was sentenced, the version of the guidelines in effect contained this language at Application Note 11. See Guidelines Manual at C.78, p 133