Document Info

DocketNumber: 94-3493

Filed Date: 11/30/1995

Status: Precedential

Modified Date: 10/13/2015

  •                                   ___________
    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-