United States v. Ronald Lee Gordon , 953 F.2d 1106 ( 1992 )

JOHN R. GIBSON, Circuit Judge.

A jury convicted Ronald Lee Gordon of aiding and abetting his co-defendant, Kenneth Wayne Stephens, in knowingly and intentionally manufacturing a controlled substance, phenylacetone (P-2-P), in violation of 21 U.S.C. § 841(a)(1) (1988). On appeal he attacks his sentence, arguing that application of the Sentencing Guidelines Career Offender provision, United States Sentencing Commission, Guidelines Manual § 4B1.1 (Nov. 1990), resulted in a 262 month sentence so disproportionate to the gravity of his crime that it violates the eighth amendment. He also argues that if the career offender provisions were not applied, then a number of errors in the presentence investigation report would lead to an erroneous sentencing calculation. Because we conclude that the career offender provisions as applied in this case do not violate the eighth amendment, we need not reach Gordon’s attacks on the presen-tence investigation report. We affirm the judgment of the district court.¹

At trial, the prosecution showed Gordon assisted in a P-2-P manufacturing operation. A DEA agent, Steve Lowry, posed as a chemical supplier, and engaged Gordon’s co-defendant, Stephens, in a conversation in which Stephens told Lowry, “[A]s long as you keep us supplied with the PA [phenyla-cetic acid — a necessary ingredient for P-2P], we’ll keep you supplied with dope [methamphetamine].” Stephens agreed to trade Lowry four ounces of methamphetamine in return for fifteen pounds of phe-nylacetic acid. Lowry testified that “P-2P is the initial stage to amphetamine.” Lowry said Stephens “indicated that he was going to begin manufacture immediately, that I would have my four ounces [of methamphetamine] shortly.” Lowry put the phenylacetic acid in Stephens’ car trunk.

Two days later, Lowry and others tracked Stephens to a trailer in the woods, which Gordon rented. The agents waited in the woods that night, hoping to smell phenylacetic acid, which has a highly distinctive odor and which would indicate that someone was manufacturing drugs in the trailer. When an officer reported smelling the phenylacetic acid, the agents obtained a search warrant for the trailer and executed the warrant about seven o’clock the next morning. When Gordon and Stephens came out of the trailer, the whole area smelled of “P-2-P, phenyl-2-propanal and an acetic smell which is associated with acetic anhydride [another ingredient of P-2-P].” In the trailer and attached shed, agent Lowry found “a makeshift laboratory” that “was, in fact, cooking.” Officers found various chemicals that “are all commonly associated with a [P-2-P or amphetamine] lab.” Next to the reaction vessel in the lab, Lowry found a brown paper bag which was inscribed with chemical symbols for the Jhree chemical ingredients of phenylacetone. In a truck at the lab site, the officers also found a list of chemicals commonly used to manufacture phe-nylacetone and methamphetamine.

The reaction vessel from the lab contained phenylacetic acid and phenylacetone in an undetermined amount. There was testimony that fifteen pounds of phenyla-cetic acid could be used to manufacture seven to seven and a half pounds of phenyl-acetone.

At the time of conviction, Gordon had at least two previous convictions for controlled substance felonies,² one of which involved a concealed weapon.

Gordon does not challenge his conviction, nor does he argue that the terms of the career offender provisions of the Sentencing Guidelines, U.S.S.G. § 4B1.1, are not applicable to his case. Gordon’s argument is that the career offender provisions result in a guideline sentence range beginning at 262 months,³ which Gordon argues, is unconstitutionally disproportionate to the gravity of his offense.

Taking the plurality opinion in the recent case of Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 2702, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment), as our guide, we conduct a “narrow” review, id. 111 S.Ct. at 2702, to determine if the sentence is grossly “disproportioned” to the crime. Id. (citations omitted). The result of our review in this case is dictated by the Harmelin holding, since Harmelin approved a life sentence for a first offense of cocaine possession, and Gordon has been convicted of a series of drug offenses and has received a lesser sentence than that approved in Harmelin. Gordon’s eighth amendment argument has no merit.

Gordon also argues that the presentence report incorrectly calculated what his base offense level, total offense level, and criminal history category would have been in the absence of the career offender provision. Since Gordon’s attacks on the presentence investigation could only change his sentence if we first invalidated the career offender provisions, we need not discuss these objections.

We affirm the judgment of the district court.

1 . The Honorable H. Franklin Waters, Chief Judge United States District Court for the Western District of Arkansas.

2 . Gordon argues that one of the convictions reported in the presentencing investigation should not be counted in computing his criminal history category, but does not deny that he has the two convictions necessary to invoke the career offender provision.

3 . U.S.S.G. § 4B1.1 provides that for a career offender with an offense that carries a statutory maximum of 25 years or more (as does section 841(a) after a previous controlled substance conviction, 21 U.S.C.A. § 841(b)(1)(C) (West 1991 Supp.)), the offense level is 34 and the Criminal History Category is VI. This results in a sentencing range oí 262-327 months. U.S.S.G. Ch. 5, Pt. A.