Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-5632
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD SALAZAR,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(May 1, 1992)
Before POLITZ, Chief Judge, REYNALDO G. GARZA and WIENER, Circuit
Judges.
POLITZ, Chief Judge:
Gerald Salazar pled guilty to attempting to manufacture in
excess of 100 grams of methamphetamine in violation of 21 U.S.C.
§ 846 and was sentenced to 84 months imprisonment and a five-year
term of supervised release. He appeals his sentence. Concluding
that the error of which he complains does not result in the relief
he seeks, and that his sentence is supported by the record, we
affirm.
Background
During October 1990 Drug Enforcement Administration agents
received information from a reliable informant that Salazar was
involved in the manufacture of methamphetamine. On October 28,

1990 agents observed him carrying a vacuum pump, several chemical
bottles, boxes, and other items into a house in New Berlin, Texas.
The agents detected a strong chemical odor which they associated
with the manufacture of methamphetamine. They obtained a search
warrant and in their search of the house discovered an active
methamphetamine laboratory, finding approximately 1700 milliliters
of phenylacetic acid, 454 grams of powdered phenylacetic acid, over
10 ounces of phenylacetone, and various other items needed for the
manufacture of methamphetamine. The agents estimated that the
chemicals were sufficient to manufacture over 100 grams of
methamphetamine. Salazar was the only person on the premises.
Salazar entered into a plea agreement and, as above noted,
pled guilty to attempting to manufacture in excess of 100 grams of
methamphetamine. The plea agreement provided that the maximum
period of incarceration Salazar would receive would be seven years
or the top of the applicable sentencing guideline range, whichever
was the lesser. The probation officer used the Drug Equivalency
Tables in U.S.S.G. § 2D1.1(c) and computed that a total of 475.696
grams of methamphetamine was involved. This led to a base offense
level of 28 which, with Salazar's criminal history category of I,
resulted in a guideline incarceration range of 78 to 97 months.
At the sentencing hearing Salazar objected to the calculation
of his offense level and offered the expert testimony of Dr. Ben
Plummer as to the quantity of methamphetamine involved. The
district court adopted as its findings the facts recited in the
presentence report, found a guideline sentencing range of 78 to
2

97 months, honored the plea bargain maximum and sentenced Salazar
to prison for 84 months. He timely appealed.
Analysis
Salazar maintains that the district court erred when it
utilized the Drug Equivalency Tables in calculating the quantity of
drugs to be used in the computation of his base offense level. We
accept the district court's findings of fact unless clearly
erroneous, but review the legal application of the guidelines de
novo. United States v. Hooten, 942 F.2d 878 (5th Cir. 1991).
Doing this, we find that Salazar's challenge has merit.
The probation officer and, by adoption, the court used the
Drug Equivalency Tables of the guidelines in quantifying the amount
of methamphetamine extant in the violation at bar. We agree with
our colleagues of the Fourth Circuit and hold that this use of the
Drug Equivalency Tables was error. In United States v. Paz, 927
F.2d 176 (4th Cir. 1991), a panel including the chairman of the
United States Sentencing Commission, stated as follows:
[T]he Drug Equivalency Tables contained in note 10
of the commentary to § 2D1.1 are not manufacturing
conversion ratios intended to reflect the amount of
controlled substance that can be manufactured from an
ingredient substance, such as the amount of crack that
can be manufactured from a given amount of cocaine.
Rather, the Drug Equivalency Tables "provide a means for
combining differing controlled substances to obtain a
single offense level."
927 F.2d at 180. The court held that because Paz was convicted of
conspiring to manufacture only one controlled substance the Drug
Equivalency Tables had no application.
The guideline commentary to the Drug Equivalency Tables states
3

that the tables are to be used (1) when the controlled substance
involved in the offense is not listed in the Drug Quantity Table,
or (2) to obtain an equivalent when a defendant possesses more than
one type of controlled substance. U.S.S.G. § 2D1.1, comment.
n.10.1 In the case at bar the controlled substance involved in the
offense, methamphetamine, is listed in the Drug Quantity Table.
The district court erred in using the Equivalency Tables.
This misapplication of the guidelines, however, does not
mandate a remand for resentencing. Under the controlling facts of
this case, on remand the identical sentence of incarceration would
have to be imposed and, therefore, a remand is not required.
Williams v. United States, _____ U.S. _____, 112 S.Ct. 1112, 117
L.Ed.2d 341 (1991).
Using the undisputed facts recited in the presentence report,
which were accepted by the district court, and the testimony of
defendant's expert witness we find the following: Under
Dr. Plummer's most conservative analysis, there would be a
conversion ratio of 44% for the phenylacetic acid to phenylacetone.
Applying this ratio to the 454 grams of powdered and
1700 milliliters2 of liquid phenylacetic acid results in 948 grams
1
When reviewing the guidelines we should consider the
commentary and attempt to construe the guidelines in an internally
consistent manner. United States v. Anderson, 942 F.2d 606 (9th
Cir. 1991) (en banc).
2
"Unless otherwise specified, the weight of a controlled
substance set forth in the table refers to the entire weight of any
mixture or substance containing a detectable amount of the
controlled substance." U.S.S.G. § 2D1.1 n.* (1990); see also
United States v. McKeever, 906 F.2d 129 (5th Cir. 1990), cert.
4

of phenylacetone. Adding this to the phenylacetone seized3 results
in a total of 1254 grams of same. According to Dr. Plummer and the
government's most conservative estimate, the ratio of phenylacetone
to methamphetamine is 50%; therefore, this quantity of
phenylacetone would convert to at least 627 grams of
methamphetamine.
The base offense level for 627 grams of methamphetamine is 28,
serendipitously identical to the offense level resulting from the
inappropriate utilization of the Drug Equivalency Tables, if indeed
the trial judge used those tables. The government vigorously
argues that the presentence report computes the quantity of drugs
by use of the Drug Equivalency Tables and by mathematical
computation. Which approach the district court accepted may be a
bit uncertain from the trial court's ruling. We conclude, however,
that the more likely basis for the court's quantity computation is
the Drug Equivalency Tables. Regardless, for the reasons we have
assigned, both approaches lead to an offense level of 28. The
guideline range for that level and the operative plea bargain
minimum sentence necessarily lead us, then, to a term of
imprisonment for 84 months.
denied, 111 S.Ct. 790 (1991); United States v. Dorrough, 927 F.2d
498 (10th Cir. 1991); and United States v. Garcia, 925 F.2d 170
(7th Cir.), cert. denied, 111 S.Ct. 2870 (1991).
3
Approximately ten ounces of one fluid contained
phenylacetone and ten milliliters of another fluid contained
phenylacetone. One fluid ounce is 29.6 milliliters, therefore, the
combined total of the fluids containing phenylacetone was 306
milliliters.
5