Unpublished Disposition, 930 F.2d 30 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 930 F.2d 30 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Deborah DANNALS, Defendant-Appellant.

No. 89-50600.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.* Decided April 3, 1991.

Before PREGERSON, FERSUSON and TROTT, Circuit Judges.


MEMORANDUM** 

Deborah Dannals was convicted in a jury trial of five drug charges arising out of a methamphetamine laboratory she ran with her husband: conspiracy to manufacture and possess methamphetamine with intent to distribute, three counts of aiding and abetting in distribution of methamphetamine, and employing minors in drug trafficking. See 21 U.S.C. §§ 841, 842, 845(a) (1), & 846. In September, 1989, she was sentenced to 212 months imprisonment. She now appeals the calculation of her sentence under the U.S. Sentencing Guidelines (hereafter U.S.S.G.).

BACKGROUND

In June of 1988, the government began an undercover investigation into a legitimate chemical supply company. Sales of glassware, chemicals, and other equipment which are used in the manufacturing of methamphetamine were monitored by an undercover agent posing as an employee. On several occasions the defendant entered the store to purchase laboratory equipment and chemicals, and had explicit conversations with the undercover agent regarding her family's methamphetamine production. These conversations were videotaped and used as evidence at her trial.

On numerous occasions she provided the agent with free samples of methamphetamine that her husband had manufactured, and sold him larger quantities of the drug. Several of these transactions were witnessed by her minor children, ages 16 and 10, who took an active role in purchasing supplies and giving out samples, and occasionally delivered and sold the drugs. After eight months of repeated purchases, the investigation ceased and the store was closed on January 27, 1989.

In March, the defendant and her husband, along with two others, were indicted by a federal grand jury and arrested. Both Mrs. Dannals and her husband James, represented by separate counsel, were convicted in a joint jury trial. Separate presentence reports were produced, although information provided by James as to the total amount of drugs produced during the conspiracy was incorporated unto Deborah's presentence report. The report calculated the total amount of drugs produced as 108 to 180 pounds of methamphetamine, based on several statements by James Dannals. He told the probation officer that the lab had been in business for about three years, and estimated their production at about four pounds per month. The report also referred to James' testimony at a pretrial hearing that their production averaged three to five pounds of methamphetamine per month. Thus, the report calculated the total amount over three years as 108 to 180 lbs., or 49 to 82 kilograms. Applying the Guidelines in effect at the time of sentencing,1  the methamphetamine at issue equalled between 98 and 163 Kg of cocaine, for the highest possible base offense level of 36. U.S.S.G. Sec. 2D1.1 (Drug Quantity Table). Finally, two points were deducted for acceptance of responsibility under U.S.S.G. Sec. 3E1.1(a), placing her final offense level at 34. With a Criminal History Category of III, the appropriate range was found to be 188 to 235 months.

Prior to sentencing, Mrs. Dannals filed written objections to the presentence report, challenging the constitutionality of the Sentencing Guidelines and the calculation of the total amount of drugs used to determine her base offense level. At the sentencing hearing on September 25, 1989, the judge accepted the presentence report and denied the constitutional objection. Defendant's counsel then withdrew her objection to the estimated quantity of methamphetamine produced, and agreed that it should be the same as her husband's.2  Ms. Dannals was sentenced to 212 months, roughly in the center of the Guidelines range.

The defendant appeals the constitutionality of the Sentencing Guidelines under the presentment clause of the Constitution, Art. I, sec. 7, cl. 2, 3, which requires that every bill, order, or resolution shall be presented to the President of the United States prior to becoming law. Id. This issue has been resolved in the Government's favor. See Mistretta v. United States, 488 U.S. 361 (1989), (Sentencing Guidelines held constitutional); United States v. Scampini, 911 F.2d 350, 352 (9th Cir. 1990) (Guidelines do not violate the presentment clauses); United States v. Reed, 914 F.2d 1288 (9th Cir. 1990) (Guidelines do not violate separation of powers).

The defendant's main issue on appeal is whether the district court properly estimated the amount of drugs used to calculate her base offense level. She contends that the total of methamphetamine manufactured should have been restricted to the eight month investigation period stated in the indictment, rather than the three years during which she and her husband were producing the drug.

We review sentences under the Guidelines for clear error, giving due to the district court's findings of fact. 18 U.S.C. § 3742(e), United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989). Here, the district court's findings relied upon three statements attributed to James Dannals in the presentence report. According to the report, James Dannals told the probation officer that he had been involved in manufacturing and distributing methamphetamine for approximately three years, and also estimated his production capacity at about four pounds per month. Defendant does not mention these statements in her brief, and apparently did not object to them below.3 

Finally, the presentence report also relied on a third statement which James made while testifying at a joint pretrial hearing held on June 27, 1989. Mrs. Dannals is correct that the presentence report somewhat overstates his actual testimony. Although he did estimate that the lab produced about three to five pounds per month of methamphetamine, this figure was offered in response to a question about their production during the eight-month indictment period, July 21, 1988 to March 19, 1989, rather than the entire three years.4  Taking this as the only evidence or quantity, she claims that the maximum quantity of methamphetamine for sentencing purposes can be only be 24 to 40 pounds (3-5 lbs.. per month for eight months). This argument misstates both the law and the facts.

The Sentencing Guidelines allow courts to aggregate quantities of drugs not specified in the count of conviction to establish base offense levels, as well as estimated past production and quantities actually seize. See Secs. 1B1.3(a) (2) (Relevant Conduct) & 2D1.1, comment. (n. 1), Amendment 21, Appendix C, effective January 15, 1988. For example, in United States v. Turner, 898 F.2d 705, 710-11 (9th Cir. 1990), the court calculated the base offense level based on the total amount of cocaine involved rather than limiting itself to the amount of cocaine involved in the count of conviction. In another recent case, United States v. Putney, 906 F.2d 477, 479 (9th Cir. 1990), we affirmed a sentence based on an amount of methamphetamine "reasonably capable of being produced" even though it had not been produced in fact. As in Turner and Putney, the district court here correctly relied on defendants' testimony and the presentence report to make its findings, and calculated the base offense level based on the total amount of drugs involved in the overall scheme. Even disregarding James' testimony, his statements to the probation officer are sufficient to support the sentence imposed here, since four lbs.. per month for three years yields a "cocaine equivalent" calculation of 131 Kg, more than twice the 50 Kg required for offense level 36. See U.S.S.G. Sec. 2D1.1, comment. (Drug Equivalence Tables, Drug Quantity Table). Because the offense level is the same either way, and the total production of the entire scheme was properly considered, the court's findings were not clearly erroneous.

In fact, James Dannals' attorney concluded as much during the sentencing hearing: "Regarding the amounts of contraband ... No matter which of the computations you use, the offense level ... as far as I can tell, remains the same." For his part, Deborah's counsel withdrew her earlier objection and conceded that both defendants were liable for the same amount of methamphetamine. Such a withdrawal at the hearing stage, without any attempt to preserve the issue, normally constitutes a waiver of that issue on appeal. United States v. Cloud, 872 F.2d 846, 857 (9th Cir. 1989); United States v. Grewal, 825 F.2d 220, 223 (9th Cir. 1987). We will reconsider waived objections only in exceptional circumstances, and this does not constitute one. United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989).

Finally, even limiting James' admission to the indictment period and disregarding his other statements, the resulting sentence would not be significantly different. The defendant's calculation of 24 to 40 pounds of methamphetamine would have to be doubled twice under the Guidelines, resulting in an identical base offense level. First, it would be converted to kilograms and doubled to make the conversion from methamphetamine to cocaine, yielding a "cocaine equivalent" of between 22 and 36 kilograms. However, the Guidelines in effect in September, 1989, authorized a second doubling of that quantity, because the defendants employed their minor children in the drug operations. See Sec. 2D1.2(a) (2), as effective prior to Amendment 135.5  This yields a total of 44 to 72 Kg, which might very likely still leave the defendant with a base offense level of 36 for 50 or more Kg. Therefore, any error which might have occurred was probably harmless.

CONCLUSION

The district court's findings were not clearly erroneous and in any case, the defendant waived her objection to the sentencing calculations. Therefore, the sentence of the district court is AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission 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 9th Cir.R. 36-3

 1

The sentencing took place before the November 1, 1989 amendments to the Guidelines, so we apply the Drug Equivalency and Drug Quantity Tables in effect at the time. See United States v. Carvajal, 905 F.2d 1292, 1294 (9th Cir. 1990). The original Guidelines required conversion of methamphetamine to its equivalent in cocaine, at a ratio of 2-1. See U.S.S.G. Sec. 2D1.1, comment. (n. 10)

 2

Referring to the report's calculation of the quantity of methamphetamine produced, Deborah's counsel stated:

Mr. Johnson: I think on page four we can agree as to the amount of methamphetamine involved in this case. It's been the same in both Mr. Dannal's [sic].

The Court: Are you withdrawing your objection?

Mr. Johnson: That objection on page four as to the calculation of 108 to 180 pounds of methamphetamine. We have absolutely nothing to controvert so we can't--

The Court: So then you're withdrawing your objection?

Mr. Johnson: Right.

 3

If the estimate of four pounds per month is used, the total would be 48 lbs. per year, or 144 lbs. over three years, resulting in a "cocaine equivalent" of 131 Kg. The highest possible offense level at the time, 36, applied to any quantity over 50 Kg. See U.S.S.G. Sec. 2D1.1 (Drug Quantity Table), comment. (Drug Equivalency Tables)

 4

The colloquy referred to took place during James Dannals' testimony at a hearing on Deborah's motion to sever her trial from her husband's. Both defendants waived their marital privilege, and the cross-examination was conducted by Ass't U.S. Attorney Bennett

Mr. Bennett: How much methamphetamine were you manufacturing on a weekly basis between July 21st, 1988 and March 19, 1989?

James Dannals: I couldn't tell you on a weekly basis. On a monthly basis, we averaged three to five pounds.

 5

Because the defendant was already at the top of the the scale, the district court did not double the sentence under this provision. However, upon resentencing, U.S.S.G. Sec. 2D1.2(a) (2) would be applicable