Heres another case involving crystal methamphetamine. Manufacture and sale nets prison term!
UNITED STATES OF AMERICA, No. 95-30224 Plaintiff-Appellee, D.C. No. v. CR-92-76-MFM DANIEL VALENTINO BADARACCO, OPINION Defendant-Appellant.
Appeal from the United States District Court for the District of Oregon Malcolm F. Marsh, District Judge, Presiding
Argued and Submitted May 8, 1996--Portland, Oregon
Filed June 11, 1996
Before: Alfred T. Goodwin and Mary M. Schroeder, Circuit Judges, Saundra Brown Armstrong,, District Judge.
Opinion by Judge Armstrong
COUNSEL Kenneth Ricardo Perry, Portland, Oregon, for defendantappellant Dianne Marie August. Ellen C. Pitcher, Assistant Federal Public Defender, Portland, Oregon, for defendant-appellant Daniel V. Badaracco.
Johnathan S. Haub, Assistant United States Attorney, Portland, Oregon, for plaintiff-appellee United States of America.
OPINION ARMSTRONG, District Judge:
Dianne Marie August and Daniel V. Badaracco appeal their sentences of imprisonment, arguing that the district court miscalculated their guideline range under the United States Sentencing Guidelines ("U.S.S.G.") by improperly multiplying the estimated capacity of their methamphetamine laboratory to determine the amount of methamphetamine involved in their offenses. We find that the district court did not err, and affirm the sentences imposed.
I. FACTS On March 3, 1992, Drug Enforcement Administration ("DEA") agents discovered a methamphetamine lab and three firearms while serving a federal search warrant at the appellants' home on Boyd Street in Milwaukie, Oregon ("the Boyd Street lab"). Appellants were arrested during the search. Further investigation revealed that from 1988 to 1989, appellants operated methamphetamine labs at the residence of Bill Olson ("the Olson lab") and at the residence of Rick and Sue Seaman, which was known as the "frog pond" ("the frog pond lab").
Appellants were convicted of conspiracy to manufacture, possess with intent to distribute, and to distribute methamphetamine in violation of 21 U.S.C. SS 841(a)(1) and 846, as well as multiple counts of possession with intent to distribute methamphetamine, 21 U.S.C. S 841(a)(1), manufacturing methamphetamine, 21 U.S.C. S 841(a)(1), distribution of methamphetamine, 21 U.S.C. S 841(a)(1), and use of a firearm in relation to a drug trafficking crime, 18 U.S.C. S 924(c)(1).
The base offense level for all of appellants' drug convictions was determined under U.S.S.G. S 2D1.1 based on the amount of methamphetamine involved in their offenses. At the sentencing hearing, the government argued that a conservative estimate of the amount of methamphetamine involved in appellants' offenses was between three and ten kilograms. This estimate was based on the following evidence:
The capacity of the Boyd street lab was 1,750 grams to 2,650 grams per reaction based on a 3,500 milliliter reaction vessel found at the Boyd Street lab ("the flask"). There was clearly more than one reaction at the Boyd Street lab because 20 kilograms of waste material were found at that site. Further, Richard Schnazer testified at trial that he had purchased four gallons of hydriodic acid for the appellants during the period in which they operated the Boyd Street lab. According to Roger Ely, a senior forensic chemist with the DEA, four gallons of hydriodic acid will produce between 2,000 grams and 3,000 grams of methamphetamine.
Additionally, Sue Seaman testified at trial that she had observed August with a bag containing approximately three pounds (1.36 kg) of methamphetamine. Ms. Seaman also testified that she had purchased methamphetamine from the appellants at both the frog pond and Boyd street locations, and that appellants had a steady stream of customers at the Boyd street address. The government did not present any specific evidence with respect to the amount of methamphetamine associated with the Olson or frog pond labs.
The district court found that there was clear evidence that methamphetamine was produced at all three labs, and that there were at least two full reactions at the Boyd Street lab. Moreover, the court found that, as the Boyd Street lab was capable of producing a minimum of 1,750 grams of methamphetamine in one reaction, that at least 3,500 grams had been manufactured at that lab. The court concluded that this was a "very conservative finding" and that based on the Boyd Street lab capacity, the evidence of continuous sales, and the fact that methamphetamine was also produced at the other two labs, at least 3,500 grams of methamphetamine were involved in the offense.
Based on this finding, the Court sentenced appellant August to the guideline minimum 151 months of imprisonment for each of the drug offenses, to be served concurrently, and 60 months of imprisonment for the firearm offenses, to be served concurrently with each other, and consecutively to the drug offenses. Appellant Badaracco was sentenced to 240 months for each of the drug offenses, to be served concurrently, and 60 months for the firearm offenses, to be served concurrently with each other, and consecutively to the drug offenses.
Appellants appealed to this Court. We held that the trial court was within its discretion to consider both the lab capacity and the potential amount of methamphetamine produced based on the hydriodic acid. However, we found that the lab capacity was misstated in the presentence report, and that the actual lab capacity was 500-1,000 grams, not 1,750-2,650 grams. Accordingly, we remanded "for a recalculation of relevant conduct and appropriate resentencing, using the correct lab capacity." United States v. Badaracco, No. 93-30028 (Feb. 10, 1994) (memorandum disposition); United States v. August, No. 93-30031 (Nov. 7, 1994) (memorandum disposition).
On remand, the district court applied the same calculations to the correct minimum lab capacity, resulting in a finding of 1,000 grams. The district court concluded that the government had proven, by a preponderance of the evidence, that the offense involved at least 999 grams of methamphetamine.1 Based on this finding, the district court sentenced appellant August to the guideline minimum 97 months of imprisonment for each of the drug offenses, to be served concurrently, and 60 months of imprisonment for the firearm offenses, to be served concurrently with each other, and consecutively to the drug offenses. Appellant Badaracco was sentenced to 140 months for each of the drug offenses, to be served concurrently, and 60 months for the firearm offenses, to be served concurrently with each other, and consecutively to the drug offenses. Both August and Badaracco appealed the sentences imposed on remand.