holding that a defendant may contest drug quantity calculation without the court denying him acceptance of responsibility
How later courts described this case
- holding that a defendant may contest drug quantity calculation without the court denying him acceptance of responsibility
- holding that “criminal defendants ... have a due process right to be sentenced on the basis of reliable information”
- holding the district court clearly erred in rejecting an acceptance of responsibility deduction when defendant’s objections to the PSR were made in “good faith”
- holding “courts cannot quantify yield figures without regard for a particular defendant’s capabilities when viewed in light of the drug laboratory involved”
Written by the judges who cited it.
The opinion
EASTERBROOK, Circuit Judge,
concurring.
I join the court’s opinion, which resolves the issues the parties presented for decision and holds that the record does not demonstrate that the conspirators could have turned their pseudoephedrine into methamphetamine of equal weight. As my colleagues observe, however, the conversion ratio is a “somewhat curious” subject to pursue. Maj. op. 890 n. 4. Both the prosecutor and defense counsel misunderstand the import of the provision that affects Eschman’s sentence.
Application Note 12 to U.S.S.G. § 2D1.1 provides:
Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See § lB1.3(a)(2) (Relevant Conduct). Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance. In making this determination, the court 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.
The prosecutor contended, and the district judge concluded, that seizures of methamphetamine did not “reflect the scale of the offense”, so the parties set out to determine “the size or capability of any laboratory involved.” But instead of inquiring whether the laboratory was large, sophisticated, efficient, and so on — the keys to its ability to turn out methamphetamine, and therefore good clues to how much of that drug this operation had produced (and thus to the scale of the offense) — both litigants and judge asked instead how much methamphetamine could have been made using the stock of raw materials on hand when the police arrived. The district court concluded that the pseudoephedrine could have been used to make an equal weight of methamphetamine, but this finding is clearly erroneous, for it conflicts with expert testimony offered by both sides. Under Application Note 12, the finding also is irrelevant, because it does not demonstrate “the size or capability of any laboratory involved.” It is like saying that the “size or capability” of an automobile body plant depends on how much aluminum can be found nearby on a given day. But that tells us only the plant’s inventory, not its “size or capability”; many producers of automobiles (or drugs) practice just-in-time purchasing to curtail costs. An auto body plant produces many more cars per year (or even per week) than the aluminum on hand at a given moment can yield. Just so with drug manufacturing enterprises.
Application Note 12 is designed to match the penalty to the true scale of the drug operation. That the police discovered some inputs for drug production is happenstance and not a good indicator of long-term output; the object of the Note is to move away from “what was seized?” to “how big was this drug business?” Consider two situations. In the first, the police find a large and sophisticated laboratory, able to produce substantial quantities of high-purity methamphetamine, but do not find any precursor chemicals — perhaps because they are stored elsewhere, perhaps because they had been used recently. In the second, the police find crude equipment, a few pots and beakers that could be used to make only small quantities of low-purity drug, but also find a supply of pseu-doephedrine because they arrive just before a “cook.” The prosecutor’s approach yields no enhancement under Application *893 Note 12 in the first ease, but a potentially substantial enhancement in the second. That’s backward and turns the Guidelines into an engine of disproportion.
Perhaps the parties and the district judge were led to their position by an omission in Application Note 12: “size or capability of any laboratory involved” is an incomplete way of describing the scale of an enterprise. Manufacturing facilities are rated in capacity per unit of time. An auto plant produces X cars per day; a generating station produces so many megawatts of electricity continuously. Should the district court take account of the lab’s likely production over the last month, or year, or the life span of a normal drug-manufacturing ring, or the span of this particular conspiracy, or the period of the statute of limitations? Application Note 12 does not say, which makes it impossible for courts to treat equally dangerous drug rings the same way. Some judges are bound to select a short period (because estimates based on the recent past are more accurate), while others select a long period (because that best reflects the total output). The Sentencing Commission should amend Note 12 to incorporate an accounting period. The most logical period is the span of this conspiracy, which is “the offense” whose relevant conduct the judge is supposed to estimate. U.S.S.G. § lB1.3(a)(l)(A). But the incompleteness of Application Note 12 as it stands does not justify replacing an estimate of capacity (and thus of past production) with an estimate of raw materials at the time of arrest.