Appeal from the United States District Court for the Eastern District of California; D.C. No. CR 89-0152-EDP; Edward D. Price, District Judge, Presiding.
Richard H. Chambers, Robert R. Beezer and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Noonan.
Roy Patrick Cook appeals his conviction and sentence for possession of ephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1). We affirm his conviction but remand for re-sentencing.
On June 27, 1989 Cook was indicted on two counts, one charging him with the attempted manufacturing of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and the other charging him with possession of ephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1). He moved to suppress the evidence, and the district court denied the motion.
If Cook had been convicted on the first count, he would have been sentenced under Sentencing Guidelines § 2X1.1, which provides that the base offense level is to be that "for the object offense." United States Sentencing Commission, Guidelines Manual (U.S.S.G.), § 2X1.1 (1990). In this case the level would be 34. As the crime was an attempt, there would be a decrease of 3 to 31. § 2X1.1(b)(1). Cook's criminal history category was I. His resulting sentence would have been 108 to 135 months. Cook entered into a plea agreement whereby the government dropped count one, and he pleaded guilty to count two, reserving the right to appeal the district court's denial of his motion to suppress.
The probation officer prepared a presentence report, in which she noted that the crime of which Cook had been convicted was not listed in the Guidelines. Accordingly, she turned to the Guidelines, § 2X5.1 which provides: "If the offense is a felony or Class A misdemeanor for which no guideline expressly has been promulgated, apply the most analogous offense guideline. If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control."
The probation officer concluded that the most analogous section was determined in the Drug Quantity Table 2D1.1(c). Applying this table she found that Cook "could have produced" 44 pounds of methamphetamine from the ephedrine he possessed. Accordingly, she applied the Drug Quantity Table (5), which speaks in terms of " at least 3 KG but less than 10 KG of methamphetamine." Applying the table in this fashion she found the total offense level was 34. From this she subtracted 2 points for Cook's acceptance of responsibility. Cook's criminal history category was I. Applying the Sentencing Table, Cook was, therefore, subject to an imprisonment range of 121-151 months. However, the statutory maximum was 10 years. Following the Guidelines § 5G1.1(a), the probation officer concluded that Cook should not be sentenced to more than 120 months but should be sentenced to this maximum.
At the sentencing hearing the defendant asked the court to depart downward, but the court said, "the Court has no alternative if it's faced with a mandatory sentence. That's made very clear both by the Congress and the guidelines." After further comment on how the court was bound but would have departed if it were not bound, the court told counsel as to a downward departure: "And if you think I can, you take this case to the Ninth Circuit and you get it reversed and you bring it back and I will depart."
The court then sentenced Cook to 10 years imprisonment and a term of supervised release of 3 years.
Cook appeals both the denial of the motion to suppress and the sentence.
1. The motion to suppress. In June 1989 the Drug Enforcement Administration (DEA) received information that a person calling himself Ed Dole had ordered 50 kilograms of ephedrine from a chemical supply company in the state of Washington. The order was to be shipped to Fresno, ...