-
USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 94-1546
UNITED STATES OF AMERICA,
Appellee,
v.
RODERICK A. CAMPBELL,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge] ___________________
____________________
Before
Boudin, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Albert B. West, by Appointment of the Court, for appellant. ______________
Roderick A. Campbell on brief pro se. ____________________
Margaret E. Curran, Assistant U.S. Attorney, with whom Sheldon ___________________ _______
Whitehouse, United States Attorney, and Kenneth P. Madden, Assistant __________ __________________
U.S. Attorney, were on brief for appellee.
____________________
July 31, 1995
____________________
COFFIN, Senior Circuit Judge. Appellant Roderick Campbell _____________________
was convicted on six counts related to the manufacture and
distribution of phenylacetone (P2P) and sentenced to a term of
imprisonment of 288 months. He raises numerous issues concerning
his trial and sentencing, none of which we find meritorious.
I. Factual and Procedural Background _________________________________
We begin with a brief review of the facts, as the jury could
have found them, providing more details later in the opinion as
necessary to provide context for our discussion.
In early 1993, a special agent for the Drug Enforcement
Agency working in an undercover role initiated a relationship
with defendant Campbell. The agent, Kelly, claimed to be working
for a New York organization that was looking for a steady source
of P2P to be used in the manufacture of methamphetamine.
Campbell agreed to set up a laboratory.
On February 10, 1993, Kelly met Campbell at a laboratory
that had been set up in a home in Cranston, Rhode Island.
Campbell delivered a small amount of a substance that was
supposed to be P2P, but testing showed that it was not. Campbell
indicated to Kelly that the negative results were due to his use
of an alternative manufacturing method designed to avoid the
distinctive odor associated with the traditional method of
manufacturing P2P. A second sample delivered about two weeks
later, manufactured by the traditional method, did contain P2P.
In March, Campbell moved the lab to a new location in
Providence, and Kelly was introduced to Campbell's associate,
-2-
Harold Farrell, who said that he would be responsible for
delivering the P2P from that point on. Farrell indicated to
Kelly that 100 gallons of P2P would be manufactured. During
March and April, six separate deliveries of mixtures containing
P2P were made to Kelly by either Farrell alone or by both Farrell
and Campbell. An additional seven deliveries were determined not
to contain any P2P.
Campbell, Farrell and two laboratory assistants were
arrested on May 26, 1993. A DEA chemist testified that when he
entered the laboratory that day he observed active chemical
reactions consistent with the manufacture of P2P, and also found
in the lab all of the chemicals necessary to produce P2P.
A federal grand jury originally charged Campbell and Farrell
in an eighteen-count indictment. Seven distribution counts were
dismissed after laboratory analysis showed that the mixtures
involved in those deliveries tested negative for the presence of
controlled substances. Farrell pleaded guilty to ten counts, and
was sentenced to ten concurrent terms of 48 months' imprisonment.
A redacted indictment was filed at the outset of Campbell's
trial, charging him with seven counts: conspiracy to manufacture,
distribute and possess with intent to distribute P2P, in
violation of 21 U.S.C. 841(a)(1) and 846 (count one);
knowingly and intentionally manufacturing P2P, in violation of
841(a)(1), (b)(1)(C), and 18 U.S.C. 2 (count two); maintaining
a place for the purpose of manufacturing P2P, in violation of
856 (count three); knowingly and intentionally distributing P2P
-3-
on three dates in February, March and April 1993, in violation of
841(a)(1), (b)(1)(C), and 18 U.S.C. 2 (counts four through
six); and conspiracy to manufacture methaqualone, in violation of
846 (count seven).
Campbell's defense was that he never intended to manufacture
P2P, but instead sought to mislead his customer, Kelly, into
purchasing lawful chemical substances. He testified that he
hoped to finance legitimate business interests with money made
from the sale of these substances. He claimed that the presence
of P2P in some of the deliveries was inadvertent.
Following eight days of trial, the jury found Campbell
guilty on counts one through six, the P2P counts, and not guilty
on count seven, the methaqualone count. He was sentenced to
concurrent 288-month terms of imprisonment on all but count
three, and to a concurrent 240-month term (the statutory maximum)
on that count. This appeal followed.
II. Challenges to Conviction ________________________
We address Campbell's several claims in turn.
(1) "Detectable" Quantity of P2P ____________________________
Campbell makes several arguments that all reduce essentially
to the claim that his conviction was unlawful because the amount
of P2P confiscated was too small. As a starting point, we note
that the statutes contain no language setting a minimum quantity
as a prerequisite for prosecution. See 21 U.S.C. 841 (a)(1) ___
("[I]t shall be unlawful for any person knowingly or
intentionally . . . to manufacture, distribute, or dispense, or
-4-
possess with intent to manufacture, distribute, or dispense, a
controlled substance . . . ."). See also id. at 846, 856.1 ___ ____ ___
Ample caselaw further establishes that no specific quantity needs
to be proven for conviction. See United States v. Restrepo- ___ _____________ _________
Contreras, 942 F.2d 96, 99 n.1 (1st Cir. 1991); see also United _________ ___ ____ ______
States v. Bounds, 985 F.2d 188, 193-94 (5th Cir. 1993); United ______ ______ ______
States v. Kwong-Wah, 966 F.2d 682, 685 (D.C. Cir. 1992) (citing ______ _________
other cases).
The amount of the controlled substance underlying a criminal
indictment typically becomes relevant only at the penalty stage.
See 21 U.S.C. 841(b); Kwong-Wah, 966 F.2d at 685. The ___ _________
Sentencing Guidelines set penalties based on weight, and state
that the weights set forth in the Drug Quantity Table refer to
"the entire weight of any mixture or substance containing a
detectable amount of the controlled substance." U.S.S.G. 2D1.1
n.*. Thus, any "detectable amount" is sufficient to trigger a
penalty.
Taking this scheme at face value, Campbell's conviction is
rock solid since no one disputes that a "detectable" amount of
P2P was obtained. Campbell, however, claims that the
Constitution requires a different analysis when the controlled
substance at issue is a precursor chemical like P2P, whose
manufacture and possession is proscribed solely because of its
relationship to another controlled substance (in the case of P2P,
____________________
1 Campbell does not contest that P2P is a controlled
substance.
-5-
either amphetamine or methamphetamine). See 21 U.S.C. 811(e) ___
(authorizing Attorney General to place an immediate precursor in
the same schedule in which the controlled substance of which it
is an immediate precursor is placed or in any higher schedule).
Campbell maintains that a precursor must be found in sufficient
quantity to be useable in making the controlled substance to
which it owes its illegality. Prosecuting lesser amounts, he
asserts, is outside the scope of Congress' intent in regulating
controlled substances and an impermissibly vague application of
federal drug laws.
Whatever the merits of such arguments in a case in which a
totally unuseable amount of a controlled precursor chemical has
been seized, see United States v. Ruff, 984 F.2d 635, 639 (5th ___ ______________ ____
Cir. 1993),2 they are unavailing here. The defendant's own
expert testified that the samples delivered in this case
contained enough P2P to produce at least a small amount of
methamphetamine.3 Thus, the charged conduct fell directly
within the statutory goal of controlling chemicals that may be
used in the manufacture of a controlled substance. See 21 U.S.C. ___
____________________
2 The Court in Ruff reversed a defendant's conviction for ____
possession of P2P with intent to manufacture methamphetamine
because the only P2P possessed by the defendant -- trace amounts
that appeared to be the residue from a manufacturing process --
was not enough for manufacturing purposes. 984 F.2d at 639.
3 Dr. Suggs stated that the substances seized could be used
to produce from "one or two" methamphetamine pills to "many
dozens of pills," depending upon the percentage of P2P in the
mixtures and the method of production. He testified that,
according to his appraisal of the government's data, there was
between eight percent and less than one percent P2P contained in
the samples.
-6-
802(23) (defining "immediate precursor"). We see no basis upon
which to exclude small amounts of useable precursors from the
statutory prohibition.
Consequently, we need not explore the boundaries of the
Congressional grant of authority to criminalize the manufacture
of precursor chemicals. The fact that Campbell did produce a
useable amount of P2P also is fatal to his vagueness argument,
which rests upon the assertion that he could not have known that
unuseable amounts of P2P would subject him to prosecution.4
(2) Reasonable Doubt Instruction ____________________________
As part of its reasonable doubt instruction, the district
court told the jury that "a reasonable doubt is sometimes
described as a fair doubt based upon reason and common sense."
Campbell contends that this phrase made the court's reasonable
doubt instruction constitutionally defective, citing United ______
States v. Campbell, 874 F.2d 838 (1st Cir. 1989). We disagree. ______ ________
____________________
4 Indeed, the vagueness argument is entirely inapplicable
here. "[T]he void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and
discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, ________ ______
357 (1983) (quoted in Posters `N' Things, Ltd. v. United States, ________________________ _____________
114 S. Ct. 1747, 1754 (1994)). The statute's absolute
prohibition against the manufacture, use and possession of
controlled substances provides an explicit warning against
dealing with any quantity. ___
Nor does the Guidelines' reference to "detectable"
quantities render the scheme unduly vague. The message is clear
that those who dabble in controlled substances will be subject to
prosecution if such substances are found. The fact that
increasingly sophisticated technology permits increasingly
smaller amounts to be detectable presents no constitutional
vagueness problem; it simply means that the opportunities for
violating the law without being caught are decreasing.
-7-
In Campbell, we rejected a defendant's attack upon reasonable ________
doubt instructions given at his trial, but also said that courts
should avoid equating reasonable doubt with fair doubt. Id. at ___
842-43. Here, the court spoke of a fair doubt "based upon reason
and common sense." Since a reasonable doubt may be properly
described as a doubt based on reason, Victor v. Nebraska, 114 S. ______ ________
Ct. 1239, 1243 (1994), the concept of reasonable doubt was
present in the very formulation under attack. We do not believe
the jury would have understood use of the additional adjective
"fair" to have altered the correct meaning.
Moreover, the court used the term "fair doubt" but once; it
used the term "reasonable doubt" no fewer than fifteen times.
For example, the court instructed the jury that the defendant "is
presumed innocent unless and until the Government proves him
guilty beyond a reasonable doubt" and that "in order to convict
the Defendant of any of these charges, the Government has to
prove all of the elements applicable to that charge beyond a
reasonable doubt." Taking the instructions as a whole, we are
convinced that the jury was properly advised of the very high
degree of confidence in Campbell's guilt needed in order to
convict.5 We see no reasonable likelihood that use of the term
____________________
5 Indeed, our determination that Campbell's rights were
unimpaired by this instruction is reinforced by his counsel's
treatment of this issue at trial. Counsel initially objected to
use of the term "fair doubt," but the next day, when the court
asked for proposed clarifying language to read to the jury, he
did not offer any. While we need not treat this as formal
waiver, it confirms our view that use of the term was
insignificant here.
-8-
here led the jury to apply a constitutionally deficient standard.
See id. at 1243. ___ ___
(3) Cross-Examination of Expert Witness ___________________________________
Campbell next contends that the court erred in allowing only
his attorney, rather than him personally, to cross-examine a
government expert witness. A defendant has a right to be
represented by counsel, Gideon v. Wainwright, 372 U.S. 335, 344- ______ __________
45 (1963), or to proceed pro se, Faretta v. California, 422 U.S. ___ __ _______ __________
806, 819-20 (1975), but does not have the right to "hybrid
representation" -- choosing those portions of the trial he wishes
to conduct and leaving the rest to counsel. McKaskle v. Wiggins, ________ _______
465 U.S. 168, 183 (1984). This does not mean that hybrid
representation is forbidden; rather, "it is to be employed
sparingly and, as a rule, is available only in the district
court's discretion." United States v. Nivica, 887 F.2d 1110, _____________ ______
1121 (1st Cir. 1989). Stressing the highly technical nature of
the expert's testimony, Campbell argues that he, far more than
his lawyer, possessed the scientific expertise necessary for
effective cross-examination.
We see no abuse of discretion in the trial judge's decision
to the contrary. The court found that, while defendant was an
expert in chemistry, defense counsel more effectively could
elicit the technical testimony in a fashion that would be
intelligible to the jury. Moreover, the court took pains to
accommodate Campbell's request. Defense counsel cross-examined
the expert thoroughly, frequently conferring with Campbell as he
-9-
went. At the close of redirect testimony, the court specifically
asked the defense if it needed further time to confer, ostensibly
to determine whether to conduct recross-examination, and both
defense counsel and Campbell personally informed the court that
they were "all set." In sum, the district court balanced
Campbell's interest in bringing his knowledge of chemistry to
bear on the cross-examination of an important government witness
with its responsibility for the orderly administration of the
trial. It exercised its discretion quite appropriately.
III. Challenges to Sentencing ________________________
Campbell claims that the district court over-sentenced him
in a variety of ways.6 After reviewing each of these claims
with care, we have concluded, for the reasons that follow, that
all are either legally or factually flawed.7
(1) Calculation of Offense Level ____________________________
As noted earlier, see Section II (1) supra, sentences for ___ _____
controlled substance convictions are linked to the quantity of
____________________
6 The November 1993 edition of the federal sentencing
guidelines applies to this case. See United States v. Muniz, 49 ___ _____________ _____
F.3d 36, 39 n.3 (1st Cir. 1995). Unless otherwise noted, all
references are to that version.
7 In an easily resolved claim, Campbell contests the
district court's imposition of a two-level enhancement for abuse
of his special skill as a chemist. This enhancement is indicated
when a defendant "used a special skill . . . in a manner that
significantly facilitated the commission or concealment of the
offense." U.S.S.G. 3B1.3. Those possessing the requisite
special skills include "pilots, lawyers, doctors, accountants,
chemists, and demolition experts." Id. at comment. (n.2) ________ ___
(emphasis added). Thus, there is no abuse of discretion in the
court's conclusion that Campbell's near Ph.D. training as a
chemist facilitated his commission of the crime of manufacturing
the chemical P2P.
-10-
drugs for which the defendant is found responsible. See United ___ ______
States v. Muniz, 49 F.3d 36, 39 (1st Cir. 1995). Campbell argues ______ _____
that the district court made two crucial errors in using a total
of 5,628.1 milliliters of P2P to calculate his base offense
level: (1) it wrongly included the total weight of the mixtures
containing P2P, rather than looking only to the actual P2P in
those mixtures, and (2) it wrongly included the weight of the
mixtures that tested negative for P2P. We consider each of these
assertions in turn.
Total weight. The defendant's argument that only the actual ____________
amount of P2P should be considered is based on a 1993 amendment
to the commentary that follows the applicable guideline, U.S.S.G.
2D1.1. The guideline states that, unless otherwise specified,
"the weight of a controlled substance set forth in the table
refers to the entire weight of any mixture or substance
containing a detectable amount of the controlled substance." 2
D1.1(c) (Drug Quantity) n.*. The commentary provides, in
relevant part, that:
[m]ixture or substance does not include materials that
must be separated from the controlled substance before
the controlled substance can be used. Examples of such
materials include the fiberglass in a
cocaine/fiberglass bonded suitcase, beeswax in a
cocaine/beeswax statue, and waste water from an illicit
laboratory used to manufacture a controlled substance.
2D1.1(c), comment. (n.1). In promulgating the amendment, the
Sentencing Commission sought to resolve a conflict in the
circuits "regarding the meaning of the term `mixture or
substance,' as used in 2D1.1 by expressly providing that this
-11-
term does not include portions of a drug mixture that have to be
separated from the controlled substance before the controlled
substance can be used." U.S.S.G. App. C, amend. 484. See United ___ ______
States v. Killion, 7 F.3d 927, 932-33 (10th Cir. 1993) ______ _______
(describing conflict and citing cases).8
The commentary and explanation make it clear that the
district court properly considered the total weight of the P2P
mixtures. The commentary excludes only materials that are
unusable or unmarketable, such as those used to transport the
controlled substance, see, e.g., United States v. Mahecha-Onofre, ___ ____ _____________ ______________
936 F.2d 623, 625-26 (1st Cir. 1991); United States v. Palacios- _____________ _________
Molina, 7 F.3d 49, 51-54 (5th Cir. 1993), or waste products of ______
the drug manufacturing process that are discarded before the
controlled substance is put into the distribution chain, see, ___
e.g., United States v. Johnson, 999 F.2d 1192, 1194 (7th Cir. ____ _____________ _______
1993). The mixtures in this case did not contain surplus
materials that needed to be separated from the P2P before it was
useable. Both the defendant's and government's experts testified
that methamphetamines may be made from such mixtures, and,
indeed, the mixtures themselves were the products sold by
Campbell to Kelly. See Palacios-Molina, 7 F.3d at 54 ("[I]t is ____ _______________
____________________
8 This circuit had held that the weight of unusable,
unmarketable materials may be included for sentencing purposes.
See, e.g., United States v. Mahecha-Onofre, 936 F.2d 623, 625-26 ___ ____ _____________ ______________
(1st Cir. 1991) (entire weight of suitcases composed of cocaine
bonded chemically with acrylic suitcase material minus all metal
parts was includable for sentencing purposes); United States v. _____________
Restrepo-Contreras, 942 F.2d 96, 99 (1st Cir. 1991) (proper to __________________
include weight of statues made of cocaine and beeswax).
-12-
the amount of th[e] commodity trafficked that counts."). As
such, the non-P2P materials in these mixtures were akin to
cutting agents or impurities, not waste products.9 Thus, in
these circumstances, the guideline provides for counting the
total weight of the liquids containing P2P.10
Negative mixtures. Campbell and Farrell delivered a total _________________
of 4007.1 milliliters of substances that turned out to contain no
detectable amounts of P2P. The district court included this
amount in calculating Campbell's offense level based on a finding
that Campbell "conspired to manufacture and to possess with
intent to distribute all P2P whether it turned out to be P2P or
____________________
9 Defendant cites United States v. Mimms, 43 F.3d 217 (5th ______________ _____
Cir. 1995) (per curiam), in support of his contention that only ___ ______
the actual P2P should be counted. The court in Mimms remanded _____
for further fact findings after concluding that the district
court had misinterpreted expert testimony concerning the amount
of P2P contained in three containers holding about 32 pounds of a
slurry-liquid substance. The district court erroneously thought
the expert had stated that 20 percent of the entire exhibit was
P2P when, in fact, the expert had indicated that 20 percent of
the liquid poured from the three containers (at most, 91.55
grams) was P2P. The Fifth Circuit's discussion, somewhat sketchy
in this per curiam opinion, suggests that the district court ___ ______
should have used the weight of only the 20 percent of the liquid
that was P2P.
Nothing in the opinion, however, indicates whether the
liquid mixture containing the P2P was useable or marketable. It
was described as resulting from "a reaction mixture." Id. at ___
220. We therefore view Mimms as distinguishable from this case, _____
where testimony showed the entire substance to be both useable
and marketable. See also United States v. Towe, 26 F.3d 614, ___ ____ _____________ ____
616-17 (5th Cir. 1994) (per curiam) (improper to sentence ___ ______
defendant based on total weight of mixture containing P2P if
mixture contained waste products).
10 Because the offense level calculation properly took into
account the total quantity of the mixtures, we reject defendant's
claim that the district court erred in denying his motion for
funds to analyze the concentrations of P2P in the mixtures.
-13-
not or whether it turned out to be a mixture or substance
containing only relatively small amounts of P2P."
This approach to drug quantity is proper. The span of the
conspiracy charged in the indictment encompassed all fourteen
deliveries, including the seven that ultimately tested negative.
The guidelines state, in relevant part:
If the offense involved both a substantive drug
offense and an attempt or conspiracy (e.g., sale of
five grams of heroin and an attempt to sell an
additional ten grams of heroin), the total quantity
involved shall be aggregated to determine the scale of
the offense.
U.S.S.G. 2D1.1, comment. (n.12). The same evidence that
permitted the jury to find, beyond a reasonable doubt, that
Campbell intended to produce P2P supported the court's finding
that each delivery, regardless of its actual P2P content, was an
intended part of the charged scheme. See supra at 2-3.11 ___ _____
Under the guideline provision quoted above, such a finding
requires inclusion of the negative substances in the drug
quantity calculation. See United States v. Youngpeter, 986 F.2d ___ _____________ __________
349, 354 (10th Cir. 1993) (where effort to produce six pounds of
methamphetamine produced only one because of "inept cooking
ability," full amount intended is counted).12 Cf. Muniz, 49 ___ _____
____________________
11 The district court's sentencing findings, of course, may
be based on the lower preponderance-of-the-evidence standard.
United States v. Legarda, 17 F.3d 496, 499 (1st Cir. 1994). We _____________ _______
review its findings of fact at sentencing under the deferential
clearly erroneous standard. Muniz, 49 F.3d at 41. _____
12 Youngpeter involved U.S.S.G. 2D1.4, which provided that __________
if the defendant is convicted of a conspiracy or an attempt to
commit any controlled substance offense, the offense level shall
be the same "as if the object of the conspiracy or attempt had
-14-
F.3d at 39 (if defendant had either the intent or capacity to
deliver the full amount of drugs under negotiation in an aborted
narcotics transaction, then that amount must be included); United ______
States v. White, 888 F.2d 490, 499 (7th Cir. 1989) ("The ______ _____
Guidelines treat success and failure, conviction and no
conviction,alikeindrugcases,solongastheamountsareascertainable.")
We therefore detect no error in the court's basing
Campbell's sentence on the full amount of the liquids delivered
during the course of the conspiracy.
(2) Enhancement for Obstruction of Justice ______________________________________
Campbell next contests the imposition of a two-level
enhancement for obstruction of justice, which was based upon the
court's finding that he had committed perjury. The guidelines
specifically list perjury as a trigger of the obstruction
enhancement. U.S.S.G. 3C1.1 comment., (n.3(b)). And the court
clearly applied the correct legal test for perjury: whether the
defendant intentionally gave false testimony concerning a
material matter. See United States v. Dunnigan, 113 S. Ct. 1111, ___ _____________ ________
1116 (1993); United States v. Matiz, 14 F.3d 79, 84 (1st Cir. _____________ _____
1994). Thus, the only basis for disturbing the enhancement is if
the fact finding of perjury were clearly erroneous. United ______
States v. Tracey, 36 F.3d 199, 202 (1st Cir. 1994). ______ ______
The court based its finding on Campbell's testimony at trial
and a three-day sentencing hearing, during which he consistently
____________________
been completed." That section later was subsumed within 2D1.1.
See U.S.S.G. App. C, amend. 447. ___
-15-
maintained that the P2P in the mixtures he delivered had been
produced by accident; his true intent, he maintained, was not to
produce any P2P, but to deceive his purchasers into believing
they were receiving P2P. The court made express fact findings
supporting its perjury determination at the conclusion of the
sentencing hearing, noting that a number of factors belied
Campbell's story. First, it found incredible Campbell's
contention that he was attempting to deceive individuals whom he
believed to be New York-based narcotics traffickers, because he
had no means of protecting himself when they found out that they
had been swindled. Second, the court found it implausible that
he would have told his co-conspirator that the substances being
delivered were 85% P2P, as he admitted he had, if he believed
they contained no P2P at all. Third, the court found that the
complexity and sophistication of the laboratory Campbell
established supported the conclusion that he intended to produce
P2P, not, as he claimed, to deceive one of the purchasers who
obviously had no experience in chemistry or P2P production and
could have been deceived by a far less elaborate setup. The
court went on to find that, at several points, Campbell gave
testimony at his sentencing hearing that was facially implausible
and contradictory.
In short, after reviewing the trial and sentencing
transcripts, we find the court's conclusion that Campbell gave
deliberately false testimony to be amply supported in the record.
Since the false testimony was relevant to whether he possessed
-16-
the required mental state for the crime and to the severity of
sentence, it was obviously material. See Matiz, 14 F.3d at 84 ___ _____
(court of appeals can make materiality determination absent
express district court finding). Thus, we affirm the obstruction
enhancement.
(3) Upward Departure in Criminal History ____________________________________
Campbell also takes issue with the upward adjustment of his
Criminal History Category (CHC) based on the court's
determination that his original CHC did not account for all of
his prior criminal activity, and that Campbell was likely to be a
recidivist. First, in a single sentence without any citation to
legal authority, he contends that the court gave insufficient
notice of its intent to depart, and of its reasons for departing.
By failing to develop this point adequately, Campbell has
forfeited it. United States v. Fahm, 13 F.3d 447, 450 n.2 (1st _____________ ____
Cir. 1994).13 His broader claim that the court erred in its
departure, while properly before us, gives him no greater succor.
In general, we use a three-part inquiry to assess a court's
decision to depart: "first, are the circumstances of the case
sufficiently unusual to justify departure; second, do the relied-
upon factual circumstances actually exist; and third, is the
departure reasonable." United States v. Parkinson, 44 F.3d 6, 9 _____________ _________
(1st Cir. 1994) (citations omitted). There is no question that
____________________
13 We note that the argument had little promise in any
event, for the presentence report and the government's sentencing
memorandum notified Campbell of the grounds ultimately relied
upon by the court for its upward departure.
-17-
the circumstances here are of a type that may warrant departure.
See U.S.S.G. 4A1.3, p.s. (expressly authorizing departure when ___
"reliable information indicates that the [CHC] does not
adequately reflect the seriousness of the defendant's past
criminal conduct or the likelihood that the defendant will commit
other crimes"); accord Fahm, 13 F.3d at 450. ______ ____
We review the court's factual findings for clear error, and
we give considerable deference to its "judgment call" as to
whether those facts warrant the departure. Id. at 450-51. Here, ___
the court made several independent findings, any one of which was
sufficient to trigger the adjustment. The court found that
Campbell had engaged in assorted criminal conduct that had not
been included in his CHC, including manufacturing and selling
grignard reagents after learning that they were being used for
illegal purposes and making deliveries of PCP (commonly known as
angel dust) in addition to a delivery in 1983 for which he was
convicted. The basis for both of these findings were admissions
by Campbell himself, hardly the stuff of clear error. Moreover,
based on the fact that Campbell committed the instant crimes
shortly after being released from a significant prison term for
similar conduct, and on the court's finding that he had displayed
a complete lack of contrition or remorse during the proceedings,
the court concluded that he was likely to return to similar
criminal activity upon his release. The court's fact findings
were not clearly erroneous, and we see no basis here for
disturbing the court's judgment that an enhancement was
-18-
indicated. Finally, in light of the multiple grounds upon which
the enhancement was based, we can hardly say that the amount of
the enhancement, from CHC III to CHC IV, was unreasonable.
(4) The 416 vs. 75 Multiplier _________________________
Campbell claims that the district court erred by using the
wrong multiplier to convert the weight of the P2P into its
equivalent marijuana weight. Deriving a marijuana weight was
necessary because the Drug Quantity Table in the sentencing
guidelines lists offense levels for only the most common types of
controlled substances. To determine the appropriate sentence for
crimes involving less common substances, such as P2P, a judge
must calculate their marijuana equivalent.
Drug Equivalency Tables are provided for this purpose.
According to the relevant table, one gram of P2P is equivalent to
416 grams of marijuana "when possessed for the purpose of
manufacturing methamphetamine." "[I]n any other case," one gram
of P2P is equivalent to 75 grams of marijuana.
The district court selected the 416 multiplier because of
its fully supportable finding that Campbell knew that the P2P he
was making was intended ultimately to be used to manufacture
methamphetamine. Campbell, however, argues that the higher
multiplier applies only when P2P possessors also are the
methamphetamine manufacturers, since only then would a defendant
in fact possess the P2P "for the purpose of manufacturing
methamphetamine."
-19-
Although such an interpretation seems technically possible
given the language of the provision, closer analysis reveals its
flaw. The government suggests that the provision reflects a
judgment by the Sentencing Commission to attach a higher penalty
to the most serious possession of P2P -- for the purpose of
manufacturing methamphetamine -- as distinguished from possession
of P2P for use in making amphetamine or possession without
knowledge of its intended use. According to the government, an
individual making P2P destined for use in manufacturing
methamphetamine is thus subject to the 416 multiplier, whether or
not that person actually intended to manufacture the
methamphetamine.
While there is no caselaw on point, the history of the P2P
listings in the equivalency table supports this view of the
provision's reach. Before November 1989, those listings
contained different conversion amounts for P2P explicitly
depending upon whether the P2P was an amphetamine precursor or a
methamphetamine precursor. See U.S.S.G. App. C, amend. 125.14 ___
An amendment to the guidelines at that time changed the language
to its present form, without any accompanying explanation that
the revision was meant to change the basic reason for the two-
tiered approach to P2P sentencing. See id. We therefore think ___ ___
____________________
14 The earlier version of the table stated that "1 gm of
Phenylacetone/P2P (amphetamine precursor)" equalled 0.375 grams
of cocaine or 0.075 grams of heroin and that "1 gm of
Phenylace[t]one/P2P (methamphetamine precursor)" equalled 0.833
grams of cocaine or 0.167 grams of heroin. U.S.S.G. App. C,
amend. 125. A later amendment changed the cocaine and heroin
references to amounts of marijuana. Id. at amend. 396. ___
-20-
it evident that no substantive change was intended, and that the
two multipliers continue to reflect a judgment that possessing
P2P linked to the manufacture of methamphetamine is a more
serious crime than possessing it in other circumstances.15
Although the new language left room for Campbell's argument
here,16 the legislative history satisfies us that the
Sentencing Commission intended that a defendant who possesses P2P
for the ultimate purpose of manufacturing methamphetamine is
subject to the higher multiplier, regardless of who actually
makes the methamphetamine. The district court's finding that
Campbell possessed the P2P for that purpose is unassailable.
IV. Conclusion __________
Having carefully considered each of the defendant's claims,
we are unable to detect any reversible error in the district
court's conduct of the trial or its decisions on sentencing. We
wish to note, however, our sense that the sum of the parts here
is a whole that is contrary to the age-old wisdom that "the
punishment should fit the crime." Campbell, who is now 46, will
serve 24 years in prison for -- at base -- producing a quantity
of P2P that would have allowed manufacture of very little
____________________
15 Trial testimony established that P2P has no legitimate
commercial use, and typically is used only to make amphetamine or
methamphetamine.
16 We note that Campbell's alternative reading could have
been avoided with a slight change in phrasing: rather than "when
possessed for the purpose of manufacturing methamphetamine," the
provision could have provided that the 416 multiplier applied if
the P2P was possessed "with intent that it be used for"
manufacturing methamphetamine.
-21-
methamphetamine. Under Congress's sentencing regime, we are
obliged to endorse this harsh result. See United States v. ___ ______________
Jackson, 30 F.3d 199, 204-05 (1st Cir. 1994) (Pettine, J., _______
concurring) (pursuant to guidelines' "mechanical sentencing," 40-
year-old defendant must serve "de facto life sentence" of 27
years).
Accordingly, the district court's judgment is affirmed in ____________________________________________________________
all respects. _____________
-22-
Document Info
Docket Number： 94-1546
Filed Date： 7/31/1995
Precedential Status： Precedential
Modified Date： 9/21/2015