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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-3157
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DINO BELLAZERIUS, a/k/a Angelo Di Adonis,
a/k/a Constantine Dino Adonis, a/k/a
Charles Wesley Dicken,
Defendant-Appellant.
CONSOLIDATED WITH
___________________________
No. 93-3168
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY LOUIS BILLA,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Louisiana

(June 17, 1994)

Before POLITZ, Chief Judge, JONES, Circuit Judge, FULLAM,* District
Judge.
POLITZ, Chief Judge:
Convicted on guilty pleas of conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. § 846, Dino Bellazerius
and Anthony L. Billa appeal their sentences. Concluding that the
career offender provisions of the Sentencing Guidelines should not
have been applied, we vacate the sentences and remand.
Background
Bellazerius told undercover agents with the Drug Enforcement
Administration that he and Billa were prepared to "cook"
methamphetamine in a laboratory located in a portable building
behind Billa's house. The agents gave Bellazerius $800 and were
told to pick up two pounds of methamphetamine in a couple of days.
The agents opted instead to secure and execute a search warrant on
the premises, finding numerous pieces of laboratory equipment and
a batch of chemicals, including ephedrine, a precursor of
methamphetamine.
Bellazerius and Billa were indicted for conspiracy to
manufacture 25 pounds of methamphetamine in violation of 21 U.S.C.
§ 846. They pleaded guilty to a superseding conspiracy indictment
that did not specify quantity. Bellazerius was sentenced to 327
months imprisonment and Billa was sentenced to 262 months. Both
timely appealed and the appeals were consolidated.
*District Judge of the Eastern District of Pennsylvania,
sitting by designation.
2

Analysis
1.
Career Offender Enhancement.
Bellazerius and Billa were sentenced as career offenders
pursuant to U.S.S.G. § 4B1.1, which provides:
A defendant is a career offender if (1) the defendant was
at least eighteen years old at the time of the instant
offense, (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense, and (3) the defendant has at least two
prior felony convictions of either a crime of violence or
a controlled substance offense.
Bellazerius and Billa contend that the Sentencing Commission
exceeded its statutory authority by including conspiracies to
commit controlled substance offenses within the ambit of that
guideline. We agree.
The Background Commentary cites 28 U.S.C. § 994(h) as the
source of authority for U.S.S.G. § 4B1.1. It states:
28 U.S.C. § 944(h) mandates that the Commission assure
that certain "career" offenders, as defined in the
statute, receive a sentence of imprisonment "at or near
the maximum term authorized." Section 4B1.1 implements
this mandate.
28 U.S.C. § 994(h) directs the Commission to promulgate guidelines
specifying a sentence of imprisonment at or near the maximum
authorized term for a defendant 18 years or older who:
(1) has been convicted of a felony that is --
(A) a crime of violence; or
(B) an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. § 841),
sections 1002(a), 1005, and 1009 of the Controlled
Substances Import and Export Act (21 U.S.C.
§§ 952(a), 955, and 959), and section 1 of the Act
of September 15, 1980 (21 U.S.C. § 955a); and
3

(2) has previously been convicted of two or more prior
felonies, each of which is --
(A) a crime of violence; or
(B) an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. § 841),
sections 1002(a), 1005, and 1009 of the Controlled
Substances Import and Export Act (21 U.S.C.
§§ 952(a), 955, and 959), and section 1 of the Act
of September 15, 1980 (21 U.S.C. § 955a).
The authorizing statute does not include the offense of which Billa
and Bellazerius were convicted -- conspiracy to violate the
narcotics laws, 21 U.S.C. § 846 -- as a trigger for career offender
enhancement.
The Sentencing Commission nevertheless included conspiracies
within the reach of U.S.S.G. § 4B1.1. Application Note 1 to
§ 4B1.1 states that "controlled substance offense" is defined in
section 4B1.2, which in turn provides:
The term "controlled substance offense" means an offense
under a federal or state law prohibiting the manufacture,
import, export, distribution, or dispensing of a
controlled substance . . . or the possession of a
controlled substance . . . with intent to manufacture,
import, export, distribute, or dispense.1
Application Note 1 to § 4B1.2 explains that the term "controlled
substance offenses" includes "the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses." The guideline
definition of "controlled substance offense" is broader than the
statutory definition in section 994(h).
The government argues that other statutory provisions, notably
section 994(a), provide the requisite authority in the event that
1U.S.S.G. § 4B1.2(2).
4

section 994(h) falls short. A drug conspiracy does not require
proof of an overt act;2 talking alone is enough. If this were a
case in which the defendants had done no more than talk, we would
be inclined to find the government's position plainly erroneous.
Congress intended section 994(h) to reach repeat violent offenders
and repeat drug traffickers.3 A defendant convicted thrice for
merely talking about committing a drug offense would be neither.
Nor is there justification for treating him as such on the basis of
Congress's general directive that the Commission prescribe
sentences commensurate with the seriousness of the offense and the
criminal history of the offender.4
As noted, however, Bellazerius and Billa did much more than
talk; they made extensive purchases to establish a laboratory.
Bellazerius has a prior drug conspiracy conviction as well as a
conviction for using a communications facility to facilitate a drug
offense. Billa has two prior convictions for robbery and one for
bank robbery.
This brings us to the inquiry whether the Commission in fact
exercised its authority under section 994(a)-(f) in promulgating
U.S.S.G. § 4B1.1. Recognizing that there is a circuit split on
this question, we agree with our colleagues in the D.C. Circuit who
2United States v. Montoya-Ortiz, 7 F.3d 1171 (5th Cir. 1993).
3S.Rep. No. 98-225, 98th Cong., lst Sess. 175 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3358.
428 U.S.C. § 994(a); 18 U.S.C. § 3553.
5

held in United States v. Price5 that it did not.
The Background Commentary states in clear, unambiguous
language that U.S.S.C. § 4B1.1 was promulgated to implement section
994(h). In United States v. Heim6 the Ninth Circuit disagreed with
Price and held that the commentary did not exclude other sources of
authority.7 We are persuaded, however, that "when people say one
thing, they do not mean another."8 The Sentencing Commission would
not have said that section 4B1.1 was intended to implement section
994(h) if it intended the guideline to implement other parts of its
enabling legislation as well. By identifying section 994(h) as its
source of authority, the Sentencing Commission impliedly disclaimed
reliance on other sources of authority.9
Our conclusion is buttressed by the Commission's proposed
amendment to the background commentary to section 4B1.1.10 The
5990 F.2d 1367 (D.C. Cir. 1993).
615 F.3d 830 (9th Cir. 1994).
7See also United States v. Allen, F.3d , 1994 WL 167838
(10th Cir. 1994).
82A Sutherland Statutory Construction at § 47.24 at 228 (5th
ed. 1992 and 1993 Supp.).
9We also part company with the Heim court in its reliance on
the legislative history of section 994(h). See also Allen; United
States v. Hightower, F.3d , 1994 WL 226979 (3d Cir. 1994).
The legislative history states that section 994(h) is "not
necessarily intended to be an exhaustive list of types of cases
. . . in which terms at or close to the authorized maxima should be
specified." 1984 U.S.C.C.A.N. at 3359. That is relevant to
whether the Commission had authority under other sections of its
enabling statute to exceed section 994(h). It is not relevant to
the issue here: whether the Commission in fact acted on the basis
of that additional authority.
1058 Fed.Reg. 67522-01 (Dec. 21, 1993).
6

amendment, which will take effect unless Congress says otherwise,
expands the authority for the guideline. Significantly, the
synopsis does not characterize the amendment as one of
"clarification." Rather, it characterizes the amendment as a
response to Price, noting that the Price court "did not foreclose
Commission authority to include conspiracy offenses under the
career offender guideline by drawing upon its broader guideline
promulgation authority in 28 U.S.C. § 994(a)." That explanation
satisfies us that the Commission's present invocation of broader
authority to support section 4B1.1 is a prospective application.11
It is a venerable principle of administrative law that agency
"action must be measured by what the [agency] did, not by what it
might have done."12 Agency action "cannot be upheld unless the
grounds upon which the agency acted in exercising its powers were
11The synopsis states in full:
This amendment adds additional background commentary
explaining the Commission's rationale and authority for
section 4B1.2 (Career Offender). The amendment responds
to a recent decision by the United States Court of
Appeals for the District of Columbia Circuit in United
States v. Price, 990 F.2d 1367 (D.C. Cir. 1993). In
Price, the court invalidated application of the career
offender guideline to a defendant convicted of a drug
conspiracy because 28 U.S.C. § 994(h), which the
Commission cites as the mandating authority for the
career offender guideline, does not expressly refer to
inchoate offenses. The court indicated that it did not
foreclose Commission authority to include conspiracy
offenses under the career offender guideline by drawing
upon its broader guideline promulgation authority in
28 U.S.C. § 994(a).
12Securities and Exchange Commission v. Chenery Corp., 318 U.S.
80, 93-94 (1943).
7

those upon which its action can be sustained."13 Pursuant to its
authority under section 994(a)-(f), the Commission could have
conducted an analysis that found that certain offenders outside the
reach of section 994(h) warranted the same punishment as section
994(h) career offenders. Instead of so doing, it mistakenly
interpreted section 994(h) to include convictions for drug
conspiracies. We cannot uphold a guideline on the basis of
authority on which the Commission did not rely at the time of
promulgation. Because the Commission promulgated section 4B1.1
under the authority of 28 U.S.C. § 994(h), it is invalid to the
extent that its scope exceeds the reach of that section of the
statute. The guideline should not have been applied to the
defendants herein.
Alternatively, the government contends that any error in the
application of the career offender guideline to Bellazerius was
harmless because the district court stated that it would have
departed upward to the same sentence had section 4B1.1 not applied.
That sua sponte determination occurred in an addendum to the
written reasons for sentence issued after the sentencing hearing
and without the mandated notice to the parties of the possibility
of an upward departure. In this posture a departure would not
comport with the requirements of Rule 32 of the Federal Rules of
Criminal Procedure and any sentence imposed would have to be
13Id., 318 U.S. at 95. The Eighth Circuit in United States v.
Baker, 16 F.3d 854 (8th Cir. 1994), neglects this principle in
relying on the proposed amendment to uphold the guideline.
8

vacated.14
2.
Quantity.
The district court calculated Billa's and Bellazerius's
sentences on the basis of its finding that the laboratory was
capable of producing more than 1000 grams of methamphetamine. The
defendants object, denying that the laboratory was capable of
producing methamphetamine and asserting abandonment of any intent
to do so. We review the district court's determination of quantity
for clear error.15
When law enforcement authorities executed their search
warrants, they found laboratory equipment and eight containers of
liquid solution. George Lester, a forensic chemist for the DEA,
examined the site, estimated the total quantity of liquid, and took
samples from each container. The remaining solution was deemed
hazardous and was destroyed. Lester found ephedrine in each
sample. Based on the amount of ephedrine, the total quantity of
liquid solution found, and the conversion ratio between ephedrine
and methamphetamine, Lester determined that more than 1000 grams of
methamphetamine could have been produced. Lester's analysis amply
supports the court's quantity determination.16
14Burns v. United States, 501 U.S. 129 (1991); United States
v. Mills, 959 F.2d 516 (5th Cir. 1992).
15United States v. Sherrod, 964 F.2d 1501 (5th Cir.), cert.
denied, 113 S.Ct. 832 (1992), 113 S.Ct. 1367 (1993), and 113 S.Ct.
1422 (1993), and cert. dismissed, 113 S.Ct. 834 (1992).
16See U.S.S.G. § 2D1.1, Application Note 12 (where no drug is
seized, the court must approximate the quantity of controlled
substance);
Sherrod
(affirming
methamphetamine
quantity
determination on the basis of sample analysis and estimated
9

The defendants attempt to distinguish Sherrod on the ground
that the samples there seized contained methamphetamine. They do
not challenge Lester's ratio for converting ephedrine to
methamphetamine; indeed, their expert used the same ratio. That
distinction, therefore, is pertinent only to defendants' contention
that they were incapable of producing methamphetamine and had
abandoned any intent to do so. The sole record evidence in support
of their assertion, however, is the presence of Draino in the
samples, the absence of a necessary piece of laboratory equipment,
and the fact that the equipment was unassembled. Lester testified
that Draino was used in the manufacturing process. The court could
infer from Bellazerius's representations to the undercover agents
that the defendants intended to purchase the remaining equipment
and to assemble a functional laboratory.17 The argument fails to
persuade.
Finally, Bellazerius and Billa contend that the district court
should have calculated their base offense levels by the Chemical
Quantity Table for precursor chemicals found in U.S.S.G. § 2D1.11.
That method would have yielded a lower base offense level.
U.S.S.G. § 2D1.11(c)(1), however, provides:
If the offense involved unlawfully manufacturing a
controlled substance or attempting to manufacture a
container sizes when the original liquid solution and the
containers had been destroyed).
17See United States v. Havens, 910 F.2d 703 (10th Cir. 1990)
(district court could estimate quantity on the basis of confiscated
precursor chemicals even though not all necessary elements to
manufacture methamphetamine were present), cert. denied, 498 U.S.
1030 (1991).
10

controlled substance unlawfully, apply § 2D1.1 . . . if
the resulting offense level is greater than that
determined above.
Conspiracy to manufacture methamphetamine is such an offense.18 The
district court properly used the Drug Quantity Table found in
section 2D1.1.
3.
Minor role in offense.
Billa contests the district court's refusal to award a
downward adjustment under section 3B1.2 for playing a minor role in
the conspiracy. He admits, however, that he made his property
available for the laboratory and paid for the chemical ingredients
and the glassware. The denial of a downward adjustment was not
clearly erroneous.19
4.
Refusal to allow withdrawal of guilty plea.
Billa moved unsuccessfully to withdraw his guilty plea on the
ground that it was induced by the government's promise to drop the
allegedly groundless charges against his wife. On the day that
Billa pleaded guilty his wife was dismissed from the indictment.
The government responds that Billa has presented no evidence of a
quid pro quo but does not expressly deny it.
We have declined to hold plea bargains induced by the promise
of leniency toward a third person per se unconstitutional.
Nonetheless, we recognize that they "pose a greater danger of
coercion than purely bilateral plea bargaining, and that,
18See United States v. Myers, 993 F.2d 713 (9th Cir. 1993).
19See Havens (defendant's claim that his sole role was to store
the precursor chemicals did not entitle him to a downward
adjustment for minor role in the offense).
11

accordingly, special care must be taken to ascertain the
voluntariness of guilty pleas entered in such circumstances."20
Where, however, the defendant previously affirmed the voluntariness
of his plea and his factual guilt at a Rule 11 allocution, as here,
we will allow vacatur of his plea only if he establishes that the
government did not observe a high standard of good faith based upon
probable cause to believe that the third party had committed a
crime.21 Despite the opportunity to do so at a hearing on his
motion to withdraw his plea, Billa made no such showing.
Accordingly, we reject this assignment of error.
5.
False affidavit.
The defendants contend that physical evidence found on the
Billa premises should have been suppressed because the undercover
agents deliberately or recklessly misled the magistrate in their
application for a search warrant. We are not persuaded. The
affidavit accompanying the warrant application provided a
substantial basis for the magistrate's finding of probable cause
even with the corrections sought by the defendants.22
The affidavit reflected that Bellazerius had told a reliable
confidential informer that he and Billa would manufacture
20United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979)
(internal quotation and citation omitted).
21Id.; accord, United States v. Whalen, 976 F.2d 1346 (10th
Cir. 1992); Martin v. Kemp, 760 F.2d 1244, 1248 (11th Cir. 1985).
22See Franks v. Delaware, 438 U.S. 154, 171-72 (1978) (a
warrant is valid if, "when material that is the subject of the
alleged falsity or reckless disregard is set to one side, there
remains sufficient content in the warrant affidavit to support a
finding of probable cause. . . .").
12

methamphetamine at a laboratory behind Billa's house as soon as
they received additional materials from Sun Scientific, Inc. To
convince the informer to invest in his operation, Bellazerius
showed him a formula that appeared accurate. In exchange for $800,
Bellazerius promised to deliver two pounds of methamphetamine.
The defendants complain that the affidavit omitted the fact
that Bellazerius also showed the informer a list of purchased
chemicals that did not match the formula; the formula was for one
manufacturing method and the chemicals for another. We do not
believe that the inclusion of that information negated the
existence of probable cause to believe that evidence of
methamphetamine manufacturing would be found at the premises.
Equally meritless is the defendants' complaint that the affidavit
failed to specify the date on which authorities obtained Billa's
criminal history. In this context the date is irrelevant.
Finally, the affidavit relates information from a United
Parcel Service driver who delivered a package from Sun Scientific
on the day after the informer's visit and told agents that she
previously had delivered 10 to 15 such packages over a 90-day
period. The defendants maintain that this information was
inaccurate and incomplete: Billa had lived on the premises for
only 45 days, only 2 to 3 packages from Sun Scientific had been
delivered, and one package had been returned. That the agents
failed to obtain the additional information from the UPS driver may
have been negligence, but it did not constitute deliberate
deception or recklessness. The application for the warrant
13

sufficiently supports its issuance.
For the foregoing reasons, we VACATE the sentences imposed on
Billa and Bellazerius and REMAND for resentencing.
14