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
FIFTH CIRCUIT
______________
No. 91-8304
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GREGORY SURASKY,
Defendant-Appellant.
__________________________________________________
Appeal from the United States District Court
For the Western District of Texas
__________________________________________________
(September 16, 1992)
Before VAN GRAAFEILAND,* KING, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant, David Gregory Surasky, pled guilty to possession of
1348 grams of phenylacetic acid with intent to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(d). At
sentencing, the district court))adopting the probation officer's
guideline1 calculations contained in the presentence report
(PSR)))sentenced Surasky to 120 months imprisonment. Surasky
* Senior Circuit Judge of the Second Circuit, sitting by
designation.
1 United States Sentencing Commission, Guidelines Manual, §
2D1.1 (Nov. 1990).

appeals, maintaining that the district court erred in adopting
these calculations. Finding no plain error, we affirm.
I
Officers of the Cedar Park Police Department executed a search
warrant on Surasky's residence and seized 1348 grams phenylacetic
acid, along with 4 grams methamphetamine. Surasky was charged by
superseding information, and pled guilty to possession of a listed
chemical, phenylacetic acid, with intent to manufacture a
controlled substance, methamphetamine, in violation of 21 U.S.C.
§ 841(d).
At sentencing, the district court converted the 1348 grams
phenylacetic acid possessed by Surasky to 674 grams phenylacetone,
and in turn converted that amount to 505.5 grams methamphetamine2
in order to arrive at Surasky's base offense level of 28.3 Surasky
2 The calculations))adopted by the district court from the PSR
and following a formula commonly used by Drug Enforcement
Administration (DEA) chemists))are set out in the PSR as follows:
1348 grams phenylacetic acid x .50 = 674 grams
phenylacetone
674 grams phenylacetone x .75 = 505.5 grams
methamphetamine
505.5 grams methamphetamine + 4 grams methamphetamine =
509.5 grams
methamphetamine
3 The Drug Quantity Table in U.S.S.G. § 2D1.1(c) provides a
base offense level of 28 for "[a]t least 400 G but less than 700 G
of methamphetamine."
-2-

made no objection to these calculations at trial. This base
offense level, combined with Surasky's criminal history category of
III, authorized a guideline range of 97 to 121 months. See
U.S.S.G. Ch.5, Pt.A. The district court imposed the statutory
maximum sentence of 120 months. See 21 U.S.C. § 841(d).
II
Surasky contends that the district court erred in arriving at
a base offense level of 28. In particular, Surasky complains that
the district court erroneously used the DEA formula contained in
the PSR4 to convert phenylacetic acid to methamphetamine. Surasky
argues that the district court should have used the Sentencing
Guidelines' Drug Equivalency Tables to convert phenylacetic acid to
cocaine or heroin, which would have resulted in a base offense
level of 26. See U.S.S.G. § 2D1.1(c) and comment. (n.10).
Because Surasky failed to raise this objection at trial, we
review the district court's ruling only for "plain error."5 See
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991), cert.
4 See supra note 2.
5 The United States argues that the issue raised by Surasky on
appeal is a factual issue, and therefore should not be reviewed by
this Court, even under the "plain error" standard. See Brief for
the United States at 9 (citing United States v. Garcia-Pillado, 898
F.2d 36 (5th Cir. 1990)). The United States incorrectly
characterizes Surasky's complaint as a factual one. Surasky does
not dispute the factual finding that he was in possession of 1348
grams phenylacetic acid. He contends that the district court erred
in its legal conclusion that the calculations in the presentence
report were the appropriate means of assigning a base offense level
to Surasky's crime.
-3-

denied, ___ U.S. ___, 111 S. Ct. 2032 (1991) (allegedly erroneous
determination of defendant's criminal history, not raised at trial,
reviewed only for plain error); United States v. Brunson, 915 F.2d
942, 944 (5th Cir. 1990) (where no objection was made at trial,
alleged misapplication of sentencing guidelines reviewed only for
plain error); United States v. Garcia-Pillado, 898 F.2d 36 (5th
Cir. 1990) (court's failure to impose statutory minimum sentence,
not raised at trial, reviewed only for plain error). "There is no
hard and fast rule for determining whether error is plain; the
determination turns upon the facts of a particular case." United
States v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980), cert.
denied, 450 U.S. 920, 101 S. Ct. 1369 (1981). However, this Court
has stated repeatedly that "plain error" is "error so obvious that
our failure to notice it would seriously affect the fairness,
integrity, or public reputation of [the] judicial proceedings and
result in a miscarriage of justice." Lopez, 923 F.2d at 50; United
States v. Bi-Co Pavers, 741 F.2d 730, 735 (5th Cir. 1991); United
States v. Howton, 688 F.2d 272, 278 (5th Cir. 1982). Plain error
is "both obvious and substantial." Gerald, 624 F.2d at 1299.
Surasky does not take issue with the first component))the
conversion of 1348 grams phenylacetic acid to 674 grams
phenylacetone. See Reply Brief of Appellant at 11. Surasky's
complaint is directed at the second step))the conversion of 674
grams phenylacetone to 505.5 grams methamphetamine. See id.
Surasky argues that the district court))once it determined that
-4-

1348 grams phenylacetic acid was equivalent to 674 grams
phenylacetone))should have applied the Drug Equivalency Tables
rather than the DEA formula in order to arrive at a base offense
level.6 Had the district court done so, it would have arrived at
a base offense level of 267 and a corresponding guideline range of
78-97 months.8
Neither the Sentencing Guidelines, nor any other authority,
explicitly required the district court to apply the method proposed
by Surasky. The Sentencing Guidelines did not explicitly provide
any method of assigning a base offense level for possession of
phenylacetic acid, because that substance was listed in neither the
Drug Quantity Table nor the Drug Equivalency Tables.9 Furthermore,
6 Phenylacetic acid, which Surasky possessed, was listed in
neither the Drug Quantity Table nor the Drug Equivalency Tables.
Phenylacetone, on the other hand, was listed in the Drug
Equivalency Tables, and Surasky argues that the district court
should have applied the Drug Equivalency Tables to convert the 674
grams phenylacetone to an equivalent amount of cocaine or heroin.
See infra
note 7.
7 The Drug Equivalency Tables provide that "1 gm of
Phenylacetone/P2P (when possessed for the purpose of manufacturing
methamphetamine) = 2.08 gm of cocaine/0.416 gm of heroin".
Therefore, 674 grams phenylacetone would convert to 1401.92 grams
cocaine (674 x 2.08 = 1401.92), or to 280.384 grams heroin (674 x
0.416 = 280.384). See U.S.S.G. § 2D1.1, comment. (n.10). The Drug
Quantity Table provides that the applicable base offense level for
1401.92 grams cocaine, and for 280.384 grams heroin, is 26. See
U.S.S.G. § 2D1.1(c).
8 Surasky's criminal history category of III, combined with a
base offense level of 26, would have led to a guideline range of
78-97 months. See U.S.S.G. Ch.5, Pt.A.
9 Phenylacetic acid is listed in the current version of the
Sentencing Guidelines. See United States Sentencing Commission,
-5-

Surasky failed to suggest at sentencing that the district court
should adopt the method of computation which Surasky now advocates
on appeal. Because the Sentencing Guidelines do not require use of
the Drug Equivalency Tables, the district court's failure to do so
did not amount to "error so obvious that our failure to notice it
would seriously affect the fairness, integrity, or public
reputation of [the] judicial proceedings and result in a
miscarriage of justice."10 Lopez, 923 F.2d at 50.
III
Finding no plain error, we AFFIRM.
Guidelines Manual § 2D1.11(d)(5)(Nov.1991).
10 Although we find no plain error in the district court's
adoption of the DEA conversion formula, we note that that formula
is at odds with the mathematical relationship between phenylacetone
and methamphetamine which is contained in U.S.S.G. § 2D1.1.
The Drug Equivalency Tables provide that phenylacetone
converts to heroin via a ratio of 1 to .416, see U.S.S.G. § 2D1.1,
comment. (n.10); and they also provide that quantities of heroin
and methamphetamine are interchangeable for sentencing purposes.
See id. ("1 gm of Methamphetamine = . . . 1.0 gm of heroin.")
Because phenylacetone converts to heroin via a ratio of 1 to .416,
it converts to methamphetamine via the same ratio.
However, the DEA formula adopted by the district court
converts phenylacetone to methamphetamine by a ratio of 1 to .75
rather than 1 to .416. See supra note 2. In this respect the DEA
formula is in conflict with U.S.S.G. § 2D1.1.
We express no
opinion as to the result that we might have reached had Surasky
objected to the DEA formula at trial.
-6-