United States v. Phipps , 73 F. App'x 714 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 22, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-51335
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHAWA CLAY PHIPPS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CR-132-1
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Joshawa Clay Phipps appeals the sentence he received on his
guilty-plea convictions of conspiracy to manufacture
methamphetamine (meth) and possession of meth with intent to
distribute it, in violation of 21 U.S.C. §§ 846 and 841(a)(1).
We AFFIRM.
In July 2002, police seized 17,368 pills from a car in which
Phipps was a passenger. The pills contained a total of 1042
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-51335
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grams of pseudoephedrine. The officers also found 99.22 grams of
meth on Phipps’s person.
To determine Phipps’s base offense level under the
Sentencing Guidelines, the presentence report (PSR) used the
guideline Drug Equivalency Tables to convert the pseudoephedrine
and the meth to their marijuana equivalents, on authority of
U.S.S.G. § 2D1.1, comment. (n.10)(note 10). The PSR notes that
the pseudoephedrine converts to 10,420 kilograms of marijuana and
the meth to 198.44 kilograms of marijuana. The PSR determined
that Phipps’s base offense level was 36, based on the
pseudoephedrine, being equivalent to more than 10,000 but less
than 30,000 kilograms of marijuana.
At sentencing Phipps argued that his base offense level
should be 32, based on his estimate that the pseudoephedrine
could have been used to manufacture only 880 grams of meth. See
U.S.S.G. § 2D1.1(c)(4)(at least 500 grams but less than 1.5
kilogram of meth). The district court agreed with the PSR and
sentenced Phipps accordingly. Phipps now contends that the
district court reversibly erred.
A defendant’s base offense level for a violation of
§ 841(a)(1) is determined by computing the quantity of drugs
involved in the offense for which he is accountable. See
§ 2D1.1(c)(Drug Quantity Table); United States v. Vital, 68 F.3d
114, 117-18 (5th Cir. 1995). If more than one controlled
substance is involved, however, note 10 directs that the Drug
No. 02-51335
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Equivalency Tables set forth in § 2D1.1 be used to determine the
appropriate offense level. This distinguishes Phipps’s case from
three cases upon which he relies, in which the offense levels for
meth offenses were based on the quantity of meth that (it was
estimated) could have been produced using the amount of a single
listed chemical that each defendant possessed. The fact that in
Phipps’s case the district court did not add to the total the
meth’s equivalent of approximately 200 kilograms of marijuana is
irrelevant, because it had no effect on the determination of
Phipps’s base offense level.
Phipps argues that the rule of lenity requires that the
pseudoephedrine be converted to meth, based on his estimate of
the quantity of meth which could be manufactured. This lacks
merit because his base offense level would have been 36 if he had
been charged with and convicted of having possessed the
pseudoephedrine alone instead of the meth offenses. This is
because the relevant Drug Quantity Table, § 2D1.11(d), provides a
base offense level of 36 for offenses involving at least one
kilogram of pseudoephedrine, and Phipps concedes that he is
accountable for 1.042 kilogram thereof.
AFFIRMED.