United States v. Steven Griggs

___________
No. 94-3493
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Steven Griggs, *
*
Defendant - Appellant. *
___________
Submitted: June 13, 1995
Filed: November 30, 1995
___________
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and JOHN R. GIBSON,
Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Steven Griggs appeals the sentence imposed upon him following a
guilty plea to charges of conspiracy to manufacture and distribute 100
grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1)
(1988). He argues that the district court1 erred in determining his base
offense level by using the wrong table in the Sentencing Guidelines, by
reducing the precursor chemicals to an equivalent amount of methamphetamine
and by holding him responsible for dextro-methamphetamine, in not finding
the government violated its plea bargain agreement by providing information
outside of the stipulated facts, and in failing to comply with Federal Rule
of Criminal Procedure 32 in conducting the
1
The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
sentencing hearing. We affirm the sentence imposed.
On October 8, 1992, Griggs pleaded guilty to the first count of a
three-count indictment against him. In doing so, he specifically pleaded
guilty to conspiracy to: (1) possess phenylacetic acid with intent to
manufacture methamphetamine; (2) manufacture 100 grams or more of
methamphetamine; (3) possess with intent to distribute 100 grams or more
of methamphetamine; and (4) distribute 100 grams or more of
methamphetamine. In conjunction with his guilty plea, Griggs signed a
written stipulation to facts relevant for sentencing, including that he had
manufactured methamphetamine on six different occasions and that on each
occasion he used approximately five pounds of phenylacetic acid to produce
twenty-two ounces of methamphetamine. Griggs also admitted that he
instructed a coconspirator, Bruce Harrington, to acquire twenty-five pounds
of phenylacetic acid for the purpose of manufacturing methamphetamine.
Finally, Griggs and the government agreed that Griggs was entitled to a
two-point reduction in his offense level for acceptance of responsibility,
a two-point addition for possession of a weapon, and a two-point addition
for supervising a coconspirator.
In consideration for Griggs' guilty plea and stipulation to the above
facts, the government agreed to dismiss Counts Two and Three against
Griggs. It also agreed to make a nonbinding recommendation to the district
court that Griggs' sentence be 188 months. Finally, the government agreed
to bring no additional charges against Griggs arising out of the
investigation in his case.
Griggs failed to appear at his January 8, 1993 sentencing hearing.
Law enforcement officials apprehended Griggs on January 2, 1994. They
found a total of 5.6 kilograms of methamphetamine in Griggs' possession and
on his property at the time of his arrest.
-2-
The United States Probation Office prepared a presentence report for
Griggs' sentencing. Using the facts to which Griggs stipulated, the
presentence report stated that Griggs made 20 to 22 ounces, or 567 to 623
grams, of methamphetamine on 6 different occasions, using 5 pounds of
phenylacetic acid each time. Thus, over these 6 occasions, Griggs had
produced a total of 3.4 to 3.7 kilograms of methamphetamine. In addition
to this methamphetamine, the presentence report held Griggs responsible for
the 25 pounds of phenylacetic acid which Griggs instructed Harrington to
obtain. Based on Griggs' stipulation that he used 5 pounds of phenylacetic
acid to produce 567 to 623 grams of methamphetamine, the presentence report
converted the 25 pounds of phenylacetic acid to 2.8 to 3.1 kilograms of
methamphetamine. The presentence report also held Griggs responsible for
the 5.6 kilograms of methamphetamine found during his arrest on January 2,
1994. After adding all of the above amounts together, the presentence
report held Griggs responsible for a total of 11.8 to 12.4 kilograms of
methamphetamine.
The presentence report fixed Griggs' base offense level at thirty-six
using the amount of methamphetamine for which Griggs was responsible and
the Drug Quantity Table in subsection 2D1.1(c) of the Sentencing
Guidelines. Relying in part on Griggs' stipulation, the presentence report
added two points to Griggs' base offense level for Griggs' possession of
a firearm during the offense, and two points for Griggs' being a supervisor
during the offense. The presentence report also added two points because
Griggs obstructed justice by failing to appear at his January 8, 1993
sentencing hearing. With these additions, the presentence report found
Griggs' total offense level to be forty-two.
The district court sentenced Griggs on September 23, 1994. At the
sentencing hearing, Griggs made only one objection to the presentence
report. Griggs asked the district court for a two-point reduction in his
offense level for his acceptance of
-3-
responsibility even though the presentence report did not give him such a
reduction. The court, after determining that this case was an exceptional
one, granted Griggs' request for a two-point reduction for acceptance of
responsibility. After this request, Griggs made no more objections.
The district court sentenced Griggs in accordance with the
presentence report as modified by Griggs' request. Griggs' offense level
was forty and his criminal history category was I. Accordingly, the
Sentencing Guidelines gave the district court a sentencing range of 292 to
365 months. The district court sentenced Griggs to 292 months. Griggs now
appeals his sentence.
I.
Griggs argues that the district court incorrectly calculated his
sentence under the Sentencing Guidelines by using the Drug Quantity Table,
rather than the Chemical Quantity Table, to calculate his base offense
level and by converting the phenylacetic acid he conspired to possess into
methamphetamine.
Griggs failed to object to the district court's use of the Drug
Quantity Table or its conversion of the phenylacetic acid. Thus, we cannot
reverse the district court unless its actions are plain error. Fed. R.
Crim. P. 52(b); United States v. Olano, 113 S. Ct. 1770, 1776-79 (1993).
Plain error is an obvious error which harms substantial rights of the
defendant. Olano, 113 S. Ct. at 1776-78. If the error is plain, we may
correct it at our discretion. Id. at 1778-79. We should, however, correct
a plain error that seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 1779.
In this case, we apply the United States Sentencing Commission,
Guidelines Manual of November 1993 because it was in effect at the time of
Griggs' sentencing hearing and there are no
-4-
Ex Post Facto Clause concerns. United States v. Gullickson, 981 F.2d 344,
346 (8th Cir. 1992). Section 2D1.11 of the Sentencing Guidelines governs
the use of the Chemical Quantity Table in sentencing. Subsection
2D1.11(c)(1) states that "[i]f the offense involved unlawfully
manufacturing a controlled substance, or attempting to manufacture a
controlled substance unlawfully, apply § 2D1.1 . . . if the resulting
offense level is greater than that determined" under subsections 2D1.11(a)
and 2D1.11(b). Section 2D1.11 further explains that subsection
2D1.11(c)(1) applies when the defendant has "completed the actions
sufficient to constitute the offense of unlawfully manufacturing a
controlled substance or attempting to manufacture a controlled substance
unlawfully." USSG § 2D1.11, comment. (n.2).
To calculate a defendant's base offense level using the Drug Quantity
Table in section 2D1.1, a court must first determine the amount of
methamphetamine for which the defendant should be held responsible. USSG
§ 2D1.1(c). In determining this amount, the court may approximate the
quantity of methamphetamine by looking at the circumstances of the
defendant's drug conspiracy. USSG § 2D1.1, comment. (n.12). Once the
court has determined the amount of methamphetamine for which the defendant
is responsible, the court finds that amount on the Drug Quantity Table to
determine the defendant's base offense level. USSG § 2D1.1(c).
Griggs argues that the district court should have used the Chemical
Quantity Table in section 2D1.11 of the Sentencing Guidelines to sentence
him, rather than the Drug Quantity Table in section 2D1.1. Griggs contends
that the court improperly converted the phenylacetic acid which he
conspired to obtain to an amount of methamphetamine for sentencing under
the Drug Quantity Table. According to Griggs, the district court should
have determined his sentence by using the weight of the phenylacetic acid
for which he was responsible and the Chemical Quantity Table in section
2D1.11. Griggs cites United States v. Hoster, 988 F.2d 1374 (5th Cir.
-5-
1993), to support his argument. Griggs argues that he would have received
a shorter sentence if the district court had used this method to calculate
his sentence.
We reject Griggs' argument that the district court should have used
the Chemical Quantity Table in sentencing him. Griggs admitted that he and
Harrington manufactured methamphetamine on his ranch approximately six
times. Thus, under subsection 2D1.11(c)(1), the district court was correct
in using the Drug Quantity Table in section 2D1.1 because Griggs' offense
involved the unlawful manufacture of methamphetamine and section 2D1.1
gives a higher base offense level than section 2D1.11. USSG §
2D1.11(c)(1).
The district court was also correct in converting the phenylacetic
acid for which Griggs was responsible to an amount of methamphetamine. To
find Griggs' base offense level on the Drug Quantity Table, the court must
determine how much methamphetamine was involved in Griggs' drug conspiracy.
As the commentary to section 2D1.1 indicates, the court may look at the
circumstances of Griggs' conspiracy to approximate the amount of
methamphetamine. USSG § 2D1.1, comment. (n.12). In this case, the
district court properly approximated the amount of methamphetamine by
calculating how much methamphetamine Griggs could have produced from the
phenylacetic acid he conspired to obtain.
Griggs cites Hoster to support his argument that the district court
should have used the Chemical Quantity Table in section 2D1.11. Hoster,
however, is factually different from Griggs' situation. Unlike Griggs,
Hoster pleaded guilty to only possession of methamphetamine with intent to
distribute. Hoster, 988 F.2d at 1376. Griggs pleaded guilty to a four-
part conspiracy which consisted of conspiracy to possess phenylacetic acid
with intent to manufacture methamphetamine and conspiracy to manufacture
methamphetamine. See id. at 1381; United States v. O'Leary, 35
-6-
F.3d 153, 155 (5th Cir. 1994) (per curiam). Additionally, we are not
persuaded by Hoster's reasoning because the court in Hoster failed to
discuss subsection 2D1.11(c)(1) and its impact on a defendant's sentencing.
Hoster, 988 F.2d at 1380-83. Cf. O'Leary, 35 F.3d at 154-55. Nothing in
Hoster leads us to conclude that the district court erred in sentencing
Griggs.
II.
Griggs argues that the government violated its plea agreement with
him by allowing the district court to consider conduct outside the
stipulated facts for his sentencing.
A district court must examine all the circumstances surrounding a
convicted defendant's offense when sentencing under the Sentencing
Guidelines. USSG § 1B1.3(a). The court can use conduct for which the
defendant has not been convicted or charged in determining the defendant's
sentence. USSG § 1B1.3(a); United States v. Galloway, 976 F.2d 414 (8th
Cir. 1992) (en banc), cert. denied, 113 S. Ct. 1420 (1993). Additionally,
any plea agreement entered into by the defendant and the government cannot
limit the district court in examining the defendant's conduct for
sentencing. USSG § 6B1.4(d); United States v. Lutfiyya, 26 F.3d 1468, 1469
(8th Cir. 1994) (per curiam).
The government, however, must abide by its plea agreement with a
defendant. When a guilty plea rests in any significant degree on a promise
of the government, so that it is part of the inducement or consideration,
the government must fulfill that promise. Santobello v. New York, 404 U.S.
257, 262 (1971). Consequently, the defendant's plea agreement is fully
binding on the government.
Griggs argues that the government violated its plea agreement with
him during his sentencing by offering the court information outside of the
stipulated facts contained in the plea agreement.
-7-
Griggs argues that the government should not have informed the district
court about his instructions to Harrington to purchase twenty-five pounds
of phenylacetic acid, his possession of a firearm, or his possession of
methamphetamine during his January 2, 1994 arrest. He also asserts that
it was improper for the district court to use this information to sentence
him. Finally, Griggs argues that the district court should not have used
conduct for which the government agreed not to charge him to increase his
sentence. Griggs objects to the district court's use of his possession of
a firearm and his possession of methamphetamine during his 1994 arrest for
sentencing because the government agreed not to charge him for that
conduct. Griggs cites United States v. Nelson, 837 F.2d 1519 (11th Cir.),
cert. denied, 488 U.S. 829 (1988), in support of his argument. Griggs
failed to raise these arguments during his sentencing hearing, thus, we may
reverse only for plain error. See Olano, 113 S. Ct. at 1776-79.
The government did not violate its plea agreement with Griggs in this
case. First, the events of January 2, 1994, occurred after Griggs entered
into his plea agreement with the government. Second, nowhere in the plea
agreement did the government agree to limit the information it would give
the district court for sentencing. Additionally, when the court asked
Griggs if anyone had made any other offer, promise, or assurance of any
kind outside of the written plea agreement to induce him to plead guilty,
he said, "No." Griggs' attorney stated in Griggs' presence that the plea
agreement was the entire agreement between Griggs and the government.
Later in the plea hearing, Griggs had an opportunity to speak to the court
and he did not contradict his attorney's answer to the court's question.
In light of these facts, we see no basis for concluding that the government
violated its plea agreement with Griggs by providing the district court
information outside of the stipulated facts.
The district court did not err in using Griggs' uncharged
-8-
conduct to determine Griggs' sentence. In determining Griggs' sentence,
the district court must examine all of the relevant conduct of his offense,
whether uncharged, charged, or charged and dismissed. USSG § 1B1.3(a).
Griggs' plea agreement did not limit the government or the district court
to the stipulated facts for determining his sentence. The district court
was correct in considering all of Griggs' relevant conduct during its
sentencing of Griggs.
The Eleventh Circuit's opinion in Nelson does not affect our
conclusions in Griggs' case. In Nelson, the government promised the
defendants that it would not deviate from a statement of stipulated facts
in exchange for their guilty pleas. 837 F.2d at 1521. In this case, the
government did not make such a promise to Griggs. Thus, Nelson is
factually different from this case and does not change our analysis of
Griggs' arguments.
III.
Griggs argues that the district court violated Federal Rule of
Criminal Procedure 32 by failing to adequately determine whether Griggs had
an opportunity to read and discuss the presentence report with his
attorney. The district court specifically asked Griggs' attorney at the
sentencing hearing in Griggs' presence whether he had reviewed and
discussed the presentence report with Griggs. Griggs' attorney answered
that he had reviewed and discussed the report with Griggs. Later in the
sentencing hearing, Griggs had an opportunity to speak to the court and he
did not contradict his attorney's answers to the court's questions. We
conclude that the district court complied with Rule 32. See United States
v. Mays, 798 F.2d 78, 80 (3d Cir. 1986).
IV.
In his reply brief, Griggs argues that the district court
-9-
erred in assuming that Griggs was responsible for dextro-methamphetamine,
rather than levo-methamphetamine, and improperly sentenced him based on
that assumption. The district court adopted the presentence report at the
sentencing hearing. By doing so, the district court impliedly found that
Griggs was responsible for dextro-methamphetamine.2 We cannot say that it
was plain error for the district court to make such a finding of fact. Cf.
United States v. Massey, 57 F.3d 637, 638 (8th Cir. 1995) (per curiam);
United States v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994), cert. denied,
115 S. Ct. 1117 (1995). Contra United States v. Ramsdale, 61 F.3d 825, 832
(11th Cir. 1995). Additionally, Griggs raises this argument for the first
time in his reply brief to this court. Generally, we do not consider
arguments raised for the first time in a reply brief, and there is no
adequate reason to deviate from that rule in this case. Weiner v. Eastern
Ark. Planting Co., 975 F.2d 1350, 1357 n.6 (8th Cir. 1992).
We affirm the sentence imposed by the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
2
The district court only impliedly found that some portion of
Griggs' methamphetamine was dextro-methamphetamine. Under
subsection 2D1.1(c), the weight of a mixture of two controlled
substances is assigned to the controlled substance that results in
the greater offense level. USSG § 2D1.1(c), note *. Thus, the
district court need only have found that some portion of Griggs'
methamphetamine mixture was dextro-methamphetamine to sentence him
for dextro-methamphetamine or "methamphetamine" using the full
weight of the mixture.
-10-