Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1989)

MEMORANDUM^* 

Appellant Wayne Easley pled guilty to one count of conspiracy to manufacture and distribute methamphetamine. He was sentenced to 184 months in prison under the Federal Sentencing Guidelines. Easley now challenges the district court's calculation of his sentence.

FACTS

In early 1989, law enforcement authorities began investigating a Fresno-based motorcycle gang and its involvement in the manufacture and distribution of methamphetamine. During the spring of 1989, an undercover detective purchased approximately 358 grams of methamphetamine from Easley. Easley agreed to sell the undercover detective an additional five pounds. Easley told the detective that he planned to set up a second methamphetamine laboratory so he could manufacture the additional five pounds. He was then placed under surveillance by law enforcement officers. On May 31, 1989, a search warrant was executed at a suspected laboratory site in Fresno County. Officers discovered a functioning meth lab and enough chemicals to produce two pounds of methamphetamine. Easley was arrested that day and three handguns were seized from his home.

Easley pled guilty to one count of conspiracy to manufacture and distribute methamphetamine. The district court calculated the appropriate Guidelines range to be between 168 and 210 months. Easley's probation officer had recommended a sentence at the low end of the range, 168 months. However, the district court imposed a sentence of 184 months. The district judge stated that his usual practice was to assign a sentence roughly at the midpoint of the Guidelines range. The judge stated that he did not see any reason to refrain from following his usual practice here, and imposed a sentence of 184 months.

DISCUSSION

Easley first claims that the district court erred in its calculation of the total amount of drugs involved in his offense. The district court considered both the 358 grams of methamphetamine actually sold to the undercover agent and the additional five pounds which Easley agreed to sell in the future. Easley contends that the meth lab discovered by law enforcement officers was not capable of producing five additional pounds of methamphetamine, and that, therefore, that amount cannot be considered in determining his base offense level. We do not agree.

Section 2D1.4 of the Guidelines states that if the defendant is convicted of a conspiracy or attempt, the offense level "shall be the same as if the object of the conspiracy or attempt had been completed." Application Note 1 to that section states, "If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount." Thus the Guidelines clearly mandate the inclusion of negotiated but undelivered amounts of drugs in determining the total amount of drugs involved in the offense. United States v. Valle-Sanchez, 912 F.2d 424, 426 (10th Cir. 1990); United States v. Garcia, 889 F.2d 1454, 1456-57 (5th Cir. 1989), cert. denied, 110 S. Ct. 1829 (1990); U.S. v. Candito, 892 F.2d 182, 186 (2d Cir. 1989).

Application Note 1 to Section 2D1.4 provides that the court shall exclude from its calculation the amount of the drug that the defendant did not intend to produce and was not reasonably capable of producing. Here, the district court found that Easley had the intention and the apparent ability to procure and manufacture the additional methamphetamine. This finding was not clearly erroneous. Easley and his co-conspirators were in the process of setting up a second laboratory site. Easley told the undercover officer that he was going to purchase the necessary supplies in California; the following day, surveillance agents followed Easley to a chemical supply house in Oakland where he purchased laboratory equipment. The fact that insufficient chemicals were present at the meth lab on the day that it was seized does not necessarily mean that Easley was incapable of procuring additional chemicals later. We affirm the district court's calculation of the total amount of methamphetamine involved in the offense.

Easley's second argument is that the district court erred in enhancing his sentence by two levels for possession of a firearm. Easley claims that a handgun found in a desk drawer where methamphetamine was stored was unconnected to his offense of conviction and therefore not a proper sentencing factor. This argument is without merit.

Section 2D1.1 of the Guidelines authorizes a two-level increase " [i]f a dangerous weapon (including a firearm) was possessed during the commission of the offense." The Guidelines also state that the enhancement should be applied "if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense."

Here, the handgun was kept in a drawer in the same desk where the conspirators stored methamphetamine. Testimony established that Easley had been at the premises numerous times; that he had participated in several drug transactions at the premises; and that Easley's "partner" in the conspiracy owned the premises. The undercover agent saw the weapon when Easley was rooting through the desk to find methamphetamine he intended to sell to the agent. Based on this evidence, it was not clearly improbable that the handgun was connected to the conspiracy. See United States v. Heldberg, 907 F.2d 91, 93-94 (9th Cir. 1990) (unloaded revolver in locked briefcase in trunk of car supported enhancement because in close proximity to drugs found on driver); United States v. Gillock, 886 F.2d 220, 222-23 (9th Cir. 1989) (loaded revolver in closet found in close proximity to drugs supported firearm enhancement). Accordingly, we affirm the district court's enhancement of Easley's sentence for possession of a firearm.

Easley's final contention is that the district court did not state adequate reasons for choosing a sentence of 184 months. 18 U.S.C. § 3553(c) requires the sentencing judge to state in open court "the reason for imposing a sentence at a particular point within the range." Here, the sentencing judge's only explanation for Easley's sentence was that the judge invariably sentenced defendants at the midpoint of the range, and saw no reason to diverge from this custom in Easley's case. We have previously held that just such a statement is inadequate. United States v. Upshaw, 918 F.2d 789, 792 (9th Cir. 1990). Therefore, Easley's sentence is vacated and remanded for a statement in open court which expressly considers the sentencing factors outlined in 18 U.S.C. § 3553(a). In all other respects, the sentence is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.