United States v. Charles v. Cole ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-1734
___________
United States of America, *
*
Appellee, *
* Appeal from the United
States
v. *
District Court for the
*
Western District of Arkansas
Charles Victor Cole, *
* {TO BE PUBLISHED}
Appellant. *
___________
Submitted: August 20, 1997
Filed: September
22, 1997
___________
Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
___________
PER CURIAM.
In 1996, authorities seized an operational
methamphetamine laboratory--including glassware,
ephedrine, pseudoephedrine, and manufacturing
paraphernalia--from the residence of Charles Victor Cole;
they also seized some actual methamphetamine in liquid
and powder form. Cole later pleaded guilty to one count
of manufacturing methamphetamine, in violation of 21
U.S.C. § 841(a)(1), and the district court sentenced him
to 151 months imprisonment and 3 years supervised
release. Cole appeals his sentence, arguing that the
district court erred in calculating the amount of
methamphetamine that could be produced from the seized
chemicals and glassware, because the court used a
“theoretical” ratio of 1 gram of ephedrine to .75
-2-
of a gram of methamphetamine rather than Cole&s lower
calculation, to which he testified at sentencing. Cole
also argues that the court erred in denying him an
acceptance-of-responsibility adjustment. We affirm the
denial of the acceptance-of-responsibility adjustment, as
it is undisputed that Cole repeatedly tested positive for
methamphetamine while he was released on bond following
his arrest for manufacturing methamphetamine. See U.S.
Sentencing Guidelines Manual § 3E1.1, comment. (n.3)
(1995); United States v. Campos, 87 F.3d 261, 264 (8th
Cir.), cert. denied, 117 S. Ct. 536 (1996) (standard of
review); United States v. Poplawski, 46 F.3d 42, 43 (8th
Cir.) (defendant&s related criminal conduct while free on
bond awaiting disposition of case may be considered in
determining acceptance of responsibility), cert. denied,
515 U.S. 1109 (1995). Nevertheless, we vacate Cole&s
sentence and remand for further application of the
Sentencing Guidelines as to drug quantity.
At sentencing, Cole testified that, although he had
been cooking methamphetamine for 4 to 5 years, he had
never yielded .75 of a gram from 1 gram of ephedrine, and
that he usually yielded .25 of a gram. The chemist who
analyzed Cole&s laboratory testified that the .75 figure
was an average based upon yields seen in the field; a
certified lab investigator testified that he believed the
.75 figure was appropriate in this case based on Cole&s
experience as a cook, the seized evidence, and
information others had given regarding the quantity of
methamphetamine Cole was dealing. In denying Cole&s
objection to the drug quantity recommended in the
presentence report, the court determined the testimony of
the lab investigator and the chemist established that a
-3-
“mean” yield was .75, and found irrelevant Cole&s
assertion that he never reached the .75 average,
concluding the pertinent question was “what could be done
at a laboratory, not what he, in fact, did.”
Because the amount of methamphetamine seized in this
case did not reflect the scale of Cole&s offense, the
district court was required to approximate the quantity
of the controlled substance, considering the size and
capability of Cole&s laboratory. See U.S. Sentencing
Guidelines Manual § 2D1.1, comment. (n.12) (1995).
Although the
-4-
district court could have found Cole&s testimony on
methamphetamine yield not credible, the court did not
make such a finding. Rather, the district court found
Cole&s testimony irrelevant, erroneously turning the
inquiry into what an average cook was capable of
yielding, not what Cole could have produced based on the
seized chemicals. In doing so, the district court
committed error, and we therefore remand this matter so
that the court may apply the correct legal standard in
evaluating Cole&s testimony and determining drug quantity.
BEAM, Circuit Judge, concurring in part and dissenting in
part.
I concur in the court&s opinion as to the acceptance-
of-responsibility issue, but I dissent from the court&s
conclusion that the district court committed legal error
by stating Cole&s testimony was irrelevant. I believe
that the district court&s statement, taken in the context
of the court&s discourse at sentencing, simply evinced its
belief that the government witnesses& testimony as to what
Cole could produce was more credible than Cole&s testimony
on that point. In my view, the court then relied on the
credited testimony in approximating drug quantity, as
directed by the applicable commentary. See U.S.
Sentencing Guidelines Manual § 2D1.1, comment. (n.12)
(1995); see United States v. Adipietro, 983 F.2d 1468,
1472 (8th Cir. 1993) (determinations concerning witness
credibility are virtually unreviewable on appeal).
A true copy.
Attest:
-5-
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
-6-