reasoning this court lacked authority to consider question in any event because district court is not required to make foreseeability findings unless defendant objects to PSR and Montanye did not show prejudice
How later courts described this case
- reasoning this court lacked authority to consider question in any event because district court is not required to make foreseeability findings unless defendant objects to PSR and Montanye did not show prejudice
- holding that district court does not have to make findings and may rely on portions of the PSR to which the parties do not specifically object
- “[W]hen a conspiracy defendant objects that the quantity of drugs attributed to the defendant in the [presentence investigation report] are not reasonably foreseeable to the defendant, the district court must make a foreseeability finding about the objecting defendant.”
- noting that plain-error review applies when issues are not raised in district court
Written by the judges who cited it.
The opinion
JOHN R. GIBSON, Circuit Judge,
concurring specially.
I agree that we should affirm Montanye’s sentence but concur specially using somewhat different reasoning than that employed by the majority opinion.
Montanye’s counsel filed written objections to the presentence report. Montanye objected to the report’s statement that the lab had a production capacity of 37.5 kilograms, arguing that the testimony at trial showed the lab was capable of producing only about 12 kilograms.
At the commencement of sentencing proceedings, the district judge read Montanye’s several objections into the record, and then asked Montanye’s counsel if those objections accurately identified his reservations or challenges to the presentence report. Monta-nye’s counsel stated that he based his objection to the production capacity on the fact that the report assumed that there would be a future conversion to another manufacturing process that would increase the lab’s production capacity, but that when the laboratory was seized the palludium method was being utilized, and that this method could not make 37.5 kilograms.
The district court proceedings then revolved around the lab’s production capacity based on these differing methodologies. At the conclusion, the district court did not base its quantity determination on any production method that might be used in the future. Instead, the court stated that if the laboratory equipment was used only five times it would produce 40 kilograms, and that this was a “conservative method of determining capability of production and reasonable expectations of what would be done to carry out the conspiracy.” (S.Tr. at 41).
Thus, the district court decided whether the conspirators would use the lab to produce 12 kilograms as contended by Montanye, or 37.5 kilograms as contended by the government. The district court pointed out during the sentencing proceedings that even if it accepted Montanye’s calculation of capacity and reduced his offense level by two points, the sentence would be the same. In the written findings of fact attached to the judgment, the judge reiterated the statement that even if he accepted defendant’s calculation of capacity and reduced his offense level by two points, a 360-month minimum sentence would still be prescribed.
The 12 kilogram capacity calls for a base offense level of 36. U.S.S.G. § 2Dl.l(c)(4) (Nov. 1991). A 37.5 kilogram capacity calls for a base offense level of 38. Id. There is no controversy about the district court’s addition of two offense levels for escape. Thus, under defendant’s theory in the district court, the total offense level would be 38, and under the government’s theory, 40. The guideline table reveals considerable difference between these two offense levels when the criminal history category is modest. Montanye, however, had twelve points in his criminal history, about which there is no dispute. This results in a criminal history category of V, and with this category both offense levels 38 and 40 call for a sentence range of 360 months to life. The sentence imposed of 360 months was the minimum sentence for either offense level.
“The first limitation on appellate authority under Rule 52(b) is that there indeed be ‘error,’” or “[djeviation from a legal rule.” United States v. Olano, — U.S.-,-, 113 S.Ct. 1770, 1777 , 123 L.Ed.2d 508 (1993). Montanye has no claim that the district court erred, as the same sentence was required even accepting Montanye’s position at trial. When the parties briefed and argued this case before the panel, Montanye raised no issue as to his sentencing, and the panel raised this issue for the first time. Monta-nye argues the propriety of his sentence in the supplemental brief before the court en banc, but I do not read the brief to depart from his position in the district court. Certainly Montanye cannot take a position before this court en banc that he did not take before the district court. See United States v. Ragan, 952 F.2d 1049 (8th Cir.1992) (per curiam). Indeed, as there is no error or *195 deviation from a legal rule, this is the end of the inquiry under Olano , — U.S. at-, 113 S.Ct. at 1777 . Even if we assume error, there would be no plain error, as the same sentence would have been called for by Mon-tanye’s position at sentencing. See Id., — U.S. at-, 113 S.Ct. at 1778 (in order for plain error to occur, error “must have affected the outcome of the District Court proceedings”).
I would affirm the sentence.