United States v. Gross ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 4, 2007
No. 07-50015 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHARLES WILLIAM GROSS
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas, Waco Division
USDC No. 6:06-cr-00084-WSS-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This is an appeal from a sentence following a guilty plea for conspiracy to
manufacture methamphetamine and attempt to manufacture
methamphetamine. The issue raised in this appeal is whether the district court
erred in attributing 1,500 grams of methamphetamine to Appellant for
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50015
sentencing purposes. Because Appellant did not raise this issue before the
district court, he failed to preserve it for appeal; therefore, “plain error” review
applies. We find no plain error in the district court’s sentence, and we affirm.
I.
Appellant in the instant case pleaded guilty to conspiracy to manufacture
methamphetamine and attempted manufacture of methamphetamine. The pre-
sentencing report (PSR) reflected, based on former confederate Jason Burt’s1
testimony, that Appellant should be held accountable for 2,358 grams of
methamphetamine, resulting in a base offense level of 38. After adding two
levels because Appellant possessed a firearm, two additional levels based on the
involvement of improper and potentially hazardous storage of anhydrous
ammonia, and a three level reduction for acceptance of responsibility,
Appellant’s total offense level was 39. Appellant was assessed one criminal
history point, giving him a criminal history category of I. The guideline range
was calculated to be 262 to 327 months, in excess of the statutory maximum of
240 months.
Appellant objected to the PSR calculations. His objection was based on the
arguments that Burt’s testimony, on which the PSR was largely based, was
unreliable and that he should only be accountable for one of the following
1
Jason Burt is Appellant’s brother-in-law who previously supplied Appellant with
pseudoephedrine pills from which he manufactured methamphetamine. Based the amounts
of pills he supplied to Appellant, Burt testified to the amounts Appellant claimed he could
produce from them.
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No. 07-50015
quantities of methamphetamine: the amount he admitted to manufacturing (as
much as 750 grams), the amount that Burt received from Appellant in exchange
for providing the pills from which Appellant manufactured the
methamphetamine (one quarter ounce per week for 52 weeks which equals
approximately 368 grams), or the amount found at his residence when it was
searched (1.68 grams). As such, Appellant argued for a base offense level of 29
– 32. In ruling on Appellant’s objection, the district court explained that it was
not convinced that Burt’s statements as to the quantities produced by Appellant
(approximately 2,800 grams) were accurate. The court, as such, reduced the
amount attributable to appellant to 1,500 grams. This reduction resulted in a
base offense level of 34, which, after the additions and reductions listed above,
yielded a total offense level of 35. When combined with a criminal history level
of I, the applicable sentencing range was 168 to 210 months. The district court
sentenced Appellant to 210 months which was 30 months less than the statutory
maximum. Appellant did not object to the district court’s drug quantity
estimation or the lack of articulated reasons for such estimation. After
announcing Appellant’s sentence, the court asked Gross’s counsel whether he
knew of any legal reason why the sentence should not be imposed. Counsel
replied in the negative.
Appellant now timely appeals arguing for the first time that the district
court’s drug quantity estimate of 1,500 grams was not reliable because it was not
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No. 07-50015
based on the facts and was merely a guess or estimate. Appellant contends that
the district court gave no reasons why the court thought its estimate was
reliable or the basis for such a figure. Additionally, Appellant argues, also for
the first time, that a more reasonable approach would have been to use Burt’s
testimony regarding what amount Burt understood Appellant to be capable of
producing (approximately 1,100 grams), not the amount Burt testified that
appellant claims he produced and on which the PSR based its calculations.
II.
The preliminary issue in this case is whether the issues appellant now
raises were preserved for appeal. Although the parties both assert that the
“clearly erroneous” standard of review applies, this Court determines the proper
standard of review regardless of the standard asserted by the parties. U.S. v.
Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992). To preserve a contention for
appeal, a party “must object with ‘sufficient specificity’ to allow the trial court
to address the issue.” U.S. v. Burton, 126 F.3d 666, 673 (5th Cir. 1997) (quoting
U.S. v. Maldonado, 42 F.3d 906, 912 (5th Cir. 1995)). If an appellant’s
contentions were not preserved for appeal, then the “plain error” standard
applies. See U.S. v. Fierro, 38 F.3d 761, 773 n.4 (5th Cir. 1994); U.S. v. Sparks,
2 F.3d 574, 589 (5th Cir. 1993).
III.
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No. 07-50015
Although Appellant objected in the district court regarding the PSR’s drug
quantity calculation of 2,358 grams and argued he should only be accountable
for one of the following: the amount he admitted manufacturing, the amount he
gave to Burt, or the amount seized from his home (750 grams, 350 grams, or 1.68
grams, respectively), he did not argue, as he does on appeal, that the calculation
should have been based upon Burt’s testimony regarding the amount of
methamphetamine he understood appellant could produce from the pills Burt
supplied to him (approximately 1,100 grams). Moreover, Appellant did not
object to the district court’s conclusion that he was responsible for at least 1,500
grams of methamphetamine.
With regard to the appropriate standard of review in this case, prior
rulings of this court are instructive. In U.S. v. Hernandez-Martinez, we held
that where a defendant could have objected to the sentence imposed at
sentencing, the court could have easily clarified or corrected itself; however,
because the court was not on notice of the arguments defendant presented on
appeal, the court was not given such opportunity and so plain error review
applied. 485 F.3d 270, 273 (5th Cir. 2007). Additionally, in U.S. v. Fierro, we
explained that where a defendant only objected at sentencing to the PSI’s
determination that he was responsible for 178 kilograms, and defendant had 88
kilograms of cocaine attributed to him by the court, his challenge to the 88
kilograms amount for the first time on appeal was not preserved since it was not
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No. 07-50015
raised in the district court. 38 F.3d at 761; see also Sparks, 2 F.3d at 589(holding that where defendant failed to raise the objection that the district court
improperly held him accountable for an excessive quantity of drugs, he could not
raise it on appeal, absent plain error). Because Appellant did not adequately
preserve these issues for appeal, plain error review applies.
A showing of “plain error” must demonstrate the following: “(1) there must
be an error; (2) the error must be clear, obvious, or readily apparent; and (3) this
obvious legal error must affect substantial rights.” U.S. v. Vital, 68 F.3d 114,
119 (5th Cir. 1995). “If those criteria are met, we have the discretion to correct
the forfeited error but should do so only if the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” U.S. v. Reyna,
358 F.3d 344, 350 (5th Cir. 2004) (internal quotations omitted). However,
“[q]uestions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.” Id. (internal
quotations and citations omitted). Because clarification of the factual basis for
district court’s calculation could easily have been developed at sentencing, Gross
cannot meet the plain error standard of review. The sentence imposed by the
district court, therefore, does not constitute plain error.
IV.
Accordingly, the sentence is affirmed.
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