[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 02, 2001
THOMAS K. KAHN
CLERK
No. 00-11254
D.C. Docket No. 99-00130 CR-S-NE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD LEE BLAYLOCK, JR.,
Defendant-Appellant.
______________________
No. 00-11255
______________________
D. C. Docket No. 99-00130-CR-S-NE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER PETRILLO,
a.k.a. Alexander Pertillo,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Alabama
(May 2, 2001)
Before WILSON and COX, Circuit Judges, and RYSKAMP*, District Judge.
RYSKAMP, District Judge:
In these consolidated appeals, Appellants, Alexander Petrillo (“Petrillo”) and
Richard L. Blaylock (“Blaylock”), appeal criminal sentences imposed on them by
the United States District Court for the Northern District of Alabama. Appellants
both pled guilty to possession of pseudoephedrine, acetone, and ethyl ether with
the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(d)(1).
The district court sentenced Petrillo to 78 months of imprisonment and a $4,000
fine and Blaylock to 60 months of imprisonment and a $4,000 fine. For the
reasons stated herein, we affirm.
*Honorable Kenneth L. Ryskamp, U.S. District Judge for the Southern District of
Florida, sitting by designation.
2
I. BACKGROUND
Because this appeal focuses on the district court’s sentencing of Appellants,
only a summary of the facts material to the sentencing issues is required. In
February 1999, the Madison County Drug Task Force of Huntington, Alabama,
received a tip that drugs were being sold from a location occupied by Appellants.
Based upon that tip and a controlled cocaine purchase at that location, a search
warrant was executed on March 24, 1999. Appellants were present at the time of
the search. Among other contraband, the agents’ search uncovered an outbuilding
in which Appellants were operating a clandestine methamphetamine laboratory.
From this laboratory agents recovered numerous items and chemicals commonly
used in the production of methamphetamine, including lithium batteries, filters,
ethyl ether, glassware, salt, acetone, sulfuric acid, nitric acid, and scales. On
September 16, 1999, Appellants were charged in a two count superseding
indictment with conspiracy to possess with the intent to distribute
methamphetamine (Count I), and possession of precursor chemicals with the intent
to manufacture methamphetamine (Count II).
The agents submitted to the Drug Enforcement Administration forensic
laboratory photographs of the items found at Appellants’ laboratory, along with
three chemicals found at the scene. The agents submitted 1) a jar containing a
3
liquid and solid substance that had separated1 (exhibit 7); 2) 21.9 grams of
pseudoephedrine in powder form (exhibit 8); and 3) two boxes containing sixty
blue tablets (exhibit 9). The DEA lab determined that exhibit 7 contained 1.6
grams of methamphetamine, that exhibit 8 contained 13.8 grams of pure
pseudoephedrine, and that exhibit 9 contained 14 grams of pure pseudoephedrine.
The DEA chemist, Dr. Jennifer L. Trevor2, determined that, assuming a 100%
theoretical yield, Appellants could have produced up to 25.6 grams of d-
methamphetamine.
On October 14, 1999, and November 8, 1999, Petrillo and Blaylock,
respectively, pled guilty to Count II of the superceding indictment. On December
16, 1999, and February 29, 2000, the district court held hearings on the sentencing
of Appellants. At sentencing, the government called Dr. Trevor to testify as to the
amount of methamphetamine Appellants could have produced at their clandestine
lab. Dr. Trevor testified that the precursor chemicals and other manufacturing
1
The Agents erroneously poured off the liquid portion of this exhibit before submitting
it to the DEA for analysis. Appellants argue that the agents’ error affected the calculation of
drug quantity and, in turn, their respective sentences. The Court finds no evidence or authority
to support this argument, for despite such error other precursors remained upon which drug
quantity could be calculated under the Guidelines.
2
Dr. Trevor at the time of sentencing had been employed with the DEA Forensic
Laboratory for two years and had evaluated “hundreds” of precursor chemicals used in the
manufacture of methamphetamine.
4
items found at Appellants’ lab were consistent with the Birch Reduction method of
manufacturing methamphetamine. Dr. Trevor testified that the Birch Reduction
method of production has reported yields in excess of 95%. Dr. Trevor stated that,
assuming a 100% theoretical yield, Appellants’ lab could have produced up to 25.6
grams of methamphetamine. Dr. Trevor admitted that as conditions change from
day to day, a methamphetamine lab will not produce the same actual yield, and
agreed that such variations could vary greatly “from one percent up to 100
percent.” (Sent. Tr. Vol. III at 32). When asked whether she could estimate the
actual yield of Appellants’ lab based upon the information and evidence available
to her, Dr. Trevor stated: “I can only report what the 100 percent theoretical yield
would be.”
Id. at 27. The district court pressed Dr. Trevor further on the issue of
actual yield, asking her whether she had any opinion “with a reasonable degree of
certainty . . . as to the yield that these amounts could have produced with the use of
the laboratory equipment [she] saw,” to which Dr. Trevor responded “No, sir.”
Id.
at 48-49. The district court then tried to narrow Dr. Trevor’s estimate of actual
yield, asking “Your best estimate, then, is the 95 percent figure?,” but the
government’s expert disagreed, responding “No. I said my only estimation would
be the 100 percent theoretical yield.”
Id. at 49. Appellants did not challenge at
sentencing Dr. Trevor’s calculation of the theoretical maximum yield.
5
Appellants offered the expert testimony of Dr. Boon Loo, Associate
Professor of Chemistry at the University of Alabama at Huntsville. Dr. Loo, who is
not a forensic chemist, testified that he agreed with Dr. Trevor’s analysis of the
precursor chemicals as well as her estimate of 25.6 grams of methamphetamine
assuming a 100% theoretical yield. Dr. Loo also admitted that he could not state
with reasonable scientific certainty what the lab’s actual yield would be. The
district court asked Dr. Loo whether he had “any opinion . . . with a reasonable
degree of certainty based on [his] education, training and experience as to the
likely yield” based upon the equipment and chemicals being used at Appellants’
methamphetamine lab, to which Dr. Loo responded, “No, I cannot tell how much
yield get [sic] from that. (Sent. Tr. Vol. IV at 41). Neither Petrillo nor Blaylock
testified at sentencing, nor did either offer any further evidence to rebut the
government’s estimation of their lab’s likely actual yield.
The district court accepted Dr. Trevor’s and Dr. Loo’s agreed-upon estimate
that Appellants’ lab could have produced 25.6 grams of methamphetamine based
upon a 100% theoretical yield, and applied the corresponding Base Offense Level
of 26 under the United States Sentencing Guidelines (“the Guidelines”). The
6
district court noted that Appellants failed to present any evidence to rebut the
government’s estimate based upon a 100% theoretical yield.3
II. STANDARD OF REVIEW
Under the Guidelines, this Court reviews a district court’s findings of drug
quantity for the limited purpose of determining whether they are clearly erroneous.
United States v. Newsome,
998 F.2d 1571, 1577 (11th Cir. 1993), cert. denied,
510
U.S. 1062,
114 S. Ct. 734,
126 L. Ed. 2d 698, and cert. denied, ___ U.S. ___,
114
S. Ct. 737,
126 L. Ed. 2d 700 (1994); United States v. Davis,
902 F.2d 860, 861
(11th Cir. 1990). The clearly erroneous standard also applies to this Court’s
review of a district court’s estimate of the production capability of a drug
manufacturing operation.
Newsome, 998 F.2d at 1577. However, we review de
novo a district court’s legal interpretation of the Guidelines. United States v.
Rodriguez,
992 F.2d 295, 296 (11th Cir. 1993).
III. DISCUSSION
Appellants contend that the district court committed clear error by 1) using a
100% theoretical yield to estimate that Appellants’s lab could have produced 25.6
grams of methamphetamine, and 2) shifting the burden of proof to defendants to
3
It is worth noting that the district court felt comfortable with its estimate of drug
quantity in part because “the actual yield of this laboratory would have to drop below a 40
percent capacity before you would even move outside a base offense level of 26.” (Sent. Tr. Vol.
IV at 52).
7
produce evidence of the proper estimate of drug manufacturing capability under
the Guidelines. The Court finds no merit in Appellants’ arguments, but will
discuss each in turn.
A. The District Court’s Estimate of Appellants’ Lab’s Production Capability
Appellants do not dispute the fact that they were operating the
methamphetamine laboratory in question, nor do they dispute the quantity of
precursor chemicals they are accused of possessing. Appellants’ sole argument
here is that the district court committed clear error by basing its estimate of drug
quantity upon insufficient evidence. In essence, Appellants object to the district
court’s adoption of Dr. Trevor’s and Dr. Loo’s estimates, both of which were based
upon a 100% theoretical yield.
Under the Guidelines, 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.” USSG §2D1.1, comment. (n.12). In making such an
estimate, the sentencing court may consider as evidence “the size or capability of
any laboratory involved.” Id.; see also USSG § 6A1.3(a) (in resolving disputed
sentencing factors, district court may consider any information with sufficient
indicia of reliability to support its probable accuracy). In the case of
methamphetamine laboratories, this Court has held that the district court may
8
estimate the lab’s capability by calculating the potential methamphetamine yield
based upon seized precursor chemicals. See, e.g., United States v. Carroll,
6 F.3d
735 (11th Cir. 1993), cert. denied,
510 U.S. 1183,
114 S. Ct. 1234,
127 L. Ed. 2d
577 (1994). Such estimates of methamphetamine production may be based upon
the most abundant precursor available. United States v. Smith,
240 F.3d 927 (11th
Cir. 2001).
When estimating the potential methamphetamine yield based upon precursor
chemicals, the district court must make an estimation that is “reasonably fair,
accurate, and conservative, and not merely speculative.” United States v. Zapata,
139 F.3d 1355, 1359 (11th Cir. 1998). The question presented here by Appellants
is whether the district court may base its estimation of drug quantity in a
methamphetamine laboratory case solely upon application of a 100% theoretical
yield to the relevant precursor. This Court has previously answered that question
in the affirmative. In United States v. Ramsdale,
61 F.3d 825, 831 (11th Cir.
1995), the only evidence before the district court concerning the defendants’
methamphetamine lab’s production capabilities was the testimony of a DEA
forensic chemist, who based his estimated yield upon a 100% theoretical yield.
The defendants appealed the district court’s reliance upon this expert estimate, but
this Court held that “[i]n light of the lack of evidence to the contrary, we cannot
9
say that the district court clearly erred in adopting [the government’s estimate].”
Id.
It is thus the rule in this circuit that a district court may base its estimate of actual
methamphetamine yield upon an expert’s calculation of the 100% theoretical yield,
at least where there is no evidence presented by the defendants to rebut such an
estimate.
In sentencing Appellants, the district court was presented with sufficient
evidence upon which to estimate the potential yield of Appellants’
methamphetamine lab. First, the government’s expert, DEA forensic chemist Dr.
Trevor, testified that based upon the equipment and precursors found at the lab,
and the method of manufacture employed by Appellants, her best estimate was that
a 100% theoretical yield would have produced up to 25.6 grams of
methamphetamine. Furthermore, Appellants’ own expert, Dr. Loo, corroborated
Dr. Trevor’s estimate. Appellants thereafter failed to rebut this uncontroverted
testimony by, for example, presenting evidence that their own inexperience as
methamphetamine producers, the weather on the day of production, or their lack of
proper equipment would have produced an actual yield of less than that estimated
by the experts.
The district court thus had before it the unrebutted expert testimony of two
chemists, both of whom estimated that Appellants’ lab could have produced up to
10
25.6 grams of methamphetamine. Pursuant to this Court’s decision in Ramsdale,
the district court then properly used this evidence to itself estimate the drug
quantity necessary for application of the Guidelines. Because the district court’s
estimate was based upon the evidence in the record, and Appellants failed to rebut
that evidence, this Court cannot find that the district court’s factual findings with
respect to drug quantity were clearly erroneous.
B. The District Court’s Alleged Shifting of the Burden of Proof
Appellants argue that the district court erroneously shifted the burden of
proof with respect to drug quantity, allegedly requiring Appellants to prove the
appropriate estimate under the Guidelines. This argument has no merit.
The burden of proof rests with the government to prove drug quantity by a
preponderance of the evidence. See, e.g., United States v. Bogusz,
43 F.3d 82, 87-
88 (3rd Cir. 1994). However, this Court has consistently held that where the
government’s estimation of drug quantity is not rebutted by the defendant, the
district court does not commit clear error by basing its own estimation of drug
quantity solely upon the evidence introduced by the government. See
Ramsdale, 61
F.3d at 831;
Newsome, 998 F.2d at 1577-78.
Appellants object to the statement by the district court that “what is lacking
in the record before this court is any evidence, factual evidence, as to those factual
11
matters which this court views as a burden of proof imposed upon defendants and
not the government.” (Sent. Tr. Vol. IV at 51). When read in its context, however,
the district court was clearly stating that the defendants had not met their burden of
coming forward with evidence to rebut the government’s evidence of drug
quantity. Leading up to this statement, the district court recognized that the
government had presented “a good bit of testimony” concerning the proper drug
quantity calculation, but that there was no further evidence concerning, inter alia,
“the presence or absence of specialized equipment, the skill of chemist, the
temperature and humidity of the atmosphere on the date and at the place chemical
reactions were attempted.”
Id. The court then noted, as quoted in the passage
objected to by Appellants, that Appellants had failed to present evidence of the
above-listed factors, and most importantly went on to state that such evidence
rested solely with Appellants. The district court went on: “The government has no
knowledge of such matters beyond what it has presented to this court. Such
variable – factual variables lay to the – within the competence and knowledge of
the defendants.”
Id. at 51-52.
It is thus clear from the context of the district court’s statement that it was
not in fact shifting the government’s burden of proving drug quantity to
Appellants, but was rather stating that Appellants had failed to fulfill their burden
12
of coming forward with rebuttal evidence concerning the circumstances of the
operation and relative skill of its operators - such evidence being only in the
possession of Appellants. Thus although the district court mistakenly used the
term “burden of proof,” it was not in any real sense applying any such thing to
Appellants. This Court is thus confident that the burden of proof with respect to
drug quantity was at all times correctly placed upon the government in this case.
IV. CONCLUSION
For the reasons stated herein, the sentences imposed by the district court
upon Appellants Petrillo and Blaylock under Count II of the superseding
indictment are AFFIRMED.
13
COX, Circuit Judge, dissenting:
I dissent. I disagree with the majority’s application of United States v.
Ramsdale,
61 F.3d 825 (11th Cir. 1998) to the facts of this case. Ramsdale held
that it is not clear error to conclude that estimates of actual yield based on a one
hundred percent theoretical yield satisfy the government’s burden of establishing
drug quantity by a preponderance when no other evidence relating to actual yield is
presented.
Ramsdale, 61 F.3d at 831. The logic of Ramsdale is simply that some
evidence can establish that a fact is more likely true than not when there is no
evidence to the contrary.4
In this case, the Government’s expert, a chemist with the Drug Enforcement
Administration’s Forensic Laboratory, testified that the theoretical yield
calculation does not and cannot account for the many factors that determine actual
yield. She also testified that there was no feasible methodology for calculating
actual yield from the evidence the laboratory possessed, and that the factors that
make actual yield less than theoretical yield, including the competency of the
operator and the purity of the reagents, could have affected actual yield here. The
4
Of course, questionable or inconclusive evidence standing alone does not meet the
preponderance standard. See MCCORMICK’S HANDBOOK OF THE LAW OF EVIDENCE § 339
(Edward W. Cleary et al. eds., 3d ed. 1972). For this reason, United States v. Ramsdale,
61 F.3d
825 (11th Cir. 1995) did not decide that the government carries its burden of persuasion as to
drug quantity merely because the defendant does not come forward with rebuttal evidence. The
government’s own uncontradicted evidence must itself satisfy the preponderance standard.
14
defense expert concurred in this assessment. Further, in response to a question
from the sentencing judge, the Government’s chemist testified that the actual yield
could have been anywhere from one percent to one hundred percent of the
theoretical yield.5 Thus, as ample evidence existed to cast doubt upon the
theoretical yield figure, Ramsdale does not decide this case. Because both of the
chemists who testified refused to express an opinion as to the actual yield, and both
rejected the use of the theoretical yield as a basis for estimating the actual yield, I
cannot conclude that the Government has met its burden of proving drug quantity
by a preponderance of the evidence.
5
The Government contends that because facts relating to the capacity of the lab are
peculiarly within the knowledge of the defendants, once evidence of theoretical yield is
presented the burden shifts to the defendant to present rebuttal evidence regarding actual yield.
Neither Ramsdale nor other case law supports this contention. In any event, that it is not always
the case that defendants will be in sole possession of the relevant proof is apparent from the facts
here. The forensic chemist presented by the Government testified that DEA agents discarded
evidence that could have provided the sentencing court with an actual yield figure, at least for
that particular batch.
15
