United States v. Herbert R. Montanye, Also Known as Muscles , 996 F.2d 190 ( 1993 )

FAGG, Circuit Judge.

Herbert R. Montanye joined an ongoing conspiracy to manufacture methamphetamine by agreeing to supply laboratory glassware to others knowing they would use it to manufacture the drug. A month after Montanye delivered the glassware to his coconspirators, federal agents found the coconspirators’ methamphetamine laboratory with enough chemicals on hand to make 37.5 kilograms of methamphetamine. At trial, a jury convicted Montanye of conspiracy to manufacture methamphetamine and attempt to manufacture methamphetamine. The district court sentenced Montanye to two concurrent thirty-year prison terms.

Montanye appealed, raising several issues separately and collectively with his coconspir-ators. A panel of this court rejected most of Montanye’s arguments, but reversed Monta-nye’s attempt conviction concluding his glassware delivery was insufficient to show he attempted to manufacture methamphetamine. United States v. Montanye, 962 F.2d 1332, 1346, 1348 (8th Cir.1992), reh’g granted and op. vacated, 962 F.2d at 1349 (July 30, 1992 Order). Although Montanye did not appeal his sentence, the panel also remanded Montanye’s case for resentencing after concluding it was a gross miscarriage of justice to hold Montanye responsible for the 37.5 kilograms of methamphetamine producible from the chemicals on hand when the laboratory was discovered. Id. at 1347. We granted rehearing en banc to reconsider these questions, thus vacating the panel’s opinion. Id. at 1349. In seeking en banc review, the Government contends sufficient evidence supported Montanye’s attempt conviction and we should not correct Montanye’s sentence under the plain error standard. In his supplemental en banc brief, Montanye asserts there was insufficient evidence to support his attempt conviction and the district court committed plain error in using the 37.5 kilograms of methamphetamine to calculate his base offense level.

To establish Montanye attempted to manufacture methamphetamine, the Government had to show Montanye’s (1) criminal intent, and (2) conduct constituting a substantial step towards the crime’s commission. See United States v. Wagner, 884 F.2d 1090, 1095 (8th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); United States v. Mazzella, 768 F.2d 235, 239-40 (8th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Montanye contends the mere delivery of glassware for the establishment of a methamphetamine laboratory does not represent a substantial step towards manufacturing methamphetamine. Whether a defendant’s conduct amounts to a substantial step necessarily depends on the facts of each case. Wagner, 884 F.2d at 1096. Although panels of this court have held ordering, receiving, and possessing the equipment and chemicals necessary to manufacture methamphetamine was a substantial step, see id. at 1096-97; United States v. Felix, 867 F.2d 1068, 1071-72 (8th Cir.1989); Mazzella, 768 F.2d at 239-40, whether Montanye’s mere delivery of glassware is a substantial step towards manufacturing methamphetamine has evenly divided the en banc court. Thus, Montanye’s jury conviction for attempt to manufacture methamphetamine is affirmed by the equally divided vote of the court en banc.

We now turn to Montanye’s assertion that the district court improperly based his offense level on the 37.5 kilograms of methamphetamine producible from the leftover chemicals found at his coconspirators’ laboratory.

Before Montanye was sentenced, he disputed the production capacity of his eocon-spirators’ laboratory. In his written objections to the presentence report (PSR), Mon-tanye objected that “the amount of methamphetamine reported [in] the [PSR] is inaccurate.” Montanye contended that instead of 37.5 kilograms producible from the unused chemicals using one production method, “the laboratory was] capable of producing closer to 12 kilograms of methamphetamine” using the different production method in place when the laboratory was seized. At the sentencing hearing, Montanye’s counsel told the district court that the objection accurately identified Montanye’s challenge to the PSR, and stated that “whatever [the method in use at the laboratory] could have produced [was] the amount of methamphetamine [Montanye] • should be charged with.” In short, Monta-nye argued that he should be charged with 12 rather than 37.5 kilograms of methamphetamine. After the Government presented evidence to show the laboratory’s production capacity, the district court found 37.5 kilograms could be produced. Having made this finding, the district court adopted the PSR’s statement that the production capacity was reasonably foreseeable to Montanye. Monta-nye did not object to the PSR’s foreseeability statement in the district court.

On appeal, Montanye acknowledges that the district court can estimate drug quantity based on a laboratory’s production capability and that the chemicals found at the laboratory could produce 37.5 kilograms of methamphetamine, but asserts the district court erroneously failed to make findings explaining its foreseeability decision before attributing the laboratory’s entire production capacity to him.

Because Montanye forfeited the foreseeability issue by failing to raise it in the district court, we lack authority to consider the question unless (1) the district court committed an error, i.e., deviated from a legal rule, (2) the error is plain, i.e., clear under current law, and (3) the error affected Montanye’s substantial rights. Fed. R.Crim.P. 52(b); United States v. Olano, — U.S.-,- — , 113 S.Ct. 1770, 1776-78,123 L.Ed.2d 508 (1993). When a forfeited error meets these limitations, we have discretionary authority to order correction. Olano, — U.S. at -, -, 113 S.Ct. at 1776, 1778. We should exercise our remedial discretion “if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id., at --, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).

We agree with Montanye that, because “the scope of jointly-undertaken criminal activity ... is not necessarily the same for every participant” in a conspiracy, a conspiracy defendant is only accountable for drug quantities implicated in the conspiracy that are reasonably foreseeable to the defendant. U.S.S.G. § 1B1.3 n. 1 (Nov. 1990). Thus, when a conspiracy defendant objects that the quantity of drugs attributed to the defendant in the PSR are not reasonably foreseeable to the defendant, the district court must make a foreseeability finding about the objecting defendant. See United States v. Rogers, 982 F.2d 1241,1245-46 (8th Cir.1993); United States v. Coleman, 990 F.2d 419, 421 (8th Cir.1993). In keeping with this requirement, we have remanded for resentencing when the district court failed to make findings explaining its foreseeability decision. E.g., Rogers, 982 F.2d at 1245-46. Nevertheless, when a conspiracy defendant does not make an objection disputing the factual issue of foreseeability, the district court is not required to make foreseeability findings. United States v. Edwards, 994 F.2d 417 (8th Cir.1993); see United States v. Streeter, 907 F.2d 781, 792 (8th Cir.1990). Instead, the district court may simply rely on the PSR. Streeter, 907 F.2d at 792; see United States v. Candie, 974 F.2d 61, 65 (8th Cir.1992); United States v. Holt, 969 F.2d 685, 688 (8th Cir.1992). Here, Montanye did not object to the PSR’s foreseeability statement and thus, as our cases permit, the district court relied on the PSR.

To bolster his plain error argument, Montanye also asserts the record does not support a foreseeability finding because “the government produced no reliable evidence that [he] could have reasonably foreseen the laboratory would produce 37.5 kilograms of methamphetamine, much less a preponderance.” This contention does not help Monta-nye. Like the district court’s obligation to make a finding, the Government’s obligation to present evidence in support of a PSR’s factual statements only arises for the facts the defendant disputes. Streeter, 907 F.2d at 792; see Edwards, 994 F.2d at 417; United States v. Mahler, 984 F.2d 899, 905-06 (8th Cir.1993). Because the district court did not violate our current cases in imposing Monta-nye’s sentence, the first two limitations on our appellate authority under Rule 52(b) are not overcome.

Even assuming the district court committed an error that was plain, to satisfy Rule 52(b)’s third limitation, Montanye must show the forfeited error was prejudicial. Olano, — U.S. at-, 113 S.Ct. at 1777-78. As Judge Gibson’s concurrence clearly explains, infra at 194; see supra at 192, Montanye’s sentence would be the same even if Montanye obtained the desired reduction in drug quantity from 37.5 to 12 kilograms of methamphetamine. That being the case, Montanye cannot show the alleged error “affected the outcome of the [district [c]ourt proceedings.” Olano, — U.S. at -, 113 S.Ct. at 1778. We differ with the concurrence’s suggestion that the lack of prejudice to Montanye because his sentence would be the same means the district court did not deviate from a legal rule. Deviation from a legal rule and lack of prejudice are separate limitations on our appellate authority under Rule 52(b). Id. at-, 113 S.Ct. at 1777-78. Here, the asserted deviation is the district court’s failure to make a foreseeability finding. The fact that Monta-nye’s sentence would be the same, even if the district court had found production of only 12 kilograms was foreseeable to Montanye, has no bearing on the initial question whether our eases require the district court to make an express foreseeability finding. Because our cases do not require the district court to make an express foreseeability finding when the defendant does not raise the issue at sentencing, the district court did not deviate from a legal rule in this case. To say there was no deviation from a legal rule in the first place because Montanye’s sentence would remain the same, however, blurs the distinction between Rule 52(b)’s first and third limitations.

Montanye also contends the district court’s failure to make a foreseeability finding seriously affects the fairness, integrity, and public reputation of judicial proceedings. See id., at-, 113 S.Ct. at 1779 (standard for Courts of Appeals to exercise remedial discretion). Because Rule 52(b)’s three limitations are not satisfied, we lack authority to exercise our discretion under the Rule. Id., at-,-, 113 S.Ct. at 1776, 1778. Even if Rule 52(b)’s limitations were met, we would not exercise our remedial discretion in this case. Montanye knew he was aiding a conspiracy to manufacture methamphetamine, 962 F.2d at 1343, 1347, and the record shows Montanye knew his coconspirators were already making methamphetamine when he joined the conspiracy. In addition, Monta-nye had ample opportunity to object to the PSR’s foreseeability statement before he was sentenced but failed to do so. Although we do not know why Montanye challenged the quantity of producible methamphetamine but not its foreseeability to him, we should not invoke Rule 52(b) to allow Montanye to follow one fact-based guidelines strategy in the district court and, having lost on that line of attack, raise on appeal as plain error another factual application of the guidelines that he did not put in issue before sentencing despite opportunities to do so. There is nothing seriously unfair about leaving Montanye with his sentence based in part on facts he did not dispute in the district court.

No useful purpose would be served by an extended discussion of Montanye’s remaining contentions. The panel correctly rejected them. 962 F.2d at 1339-46.

Accordingly, we affirm.