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

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11368
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD BOWMAN ARNOLD,
also known as Bo Arnold,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
July 27, 1998
Before POLITZ, Chief Judge, WISDOM and WIENER, Circuit Judges.

PER CURIAM:
In this direct criminal appeal of his sentence only,
Defendant-Appellant Ronald Bowman Arnold challenges the district
court's method of calculating the amount of a "listed" chemical
that he possessed. Finding no reversible error, we affirm.
I
FACTS AND PROCEEDINGS
Arnold pleaded guilty to an indictment charging that, from
January 1997 through September 3, 1997, he knowingly and
intentionally possessed benzyl chloride, a list II chemical under

21 U.S.C. § 802,1 with the intent to manufacture a controlled
substance, phenyl acetone, in violation of 21 U.S.C. § 841(d)(1).2
The factual resumé provided that, pursuant to his purchase order,
one liter (1,100 grams) of benzyl chloride was delivered to
Arnold's home in March 1997. After Arnold ordered a second liter
(1,100 grams) of benzyl chloride in September 1997, agents of the
Drug Enforcement Administration (DEA) were notified. The agents
observed the delivery of the second bottle of benzyl chloride, and
Arnold was arrested.
The presentence investigation report (PSR) recommended a base
offense level of 24 based on Arnold's possession of a total of
2,200 grams of benzyl chloride.3 Arnold objected, arguing that
although he had ordered two different liters of benzyl chloride
during several months, he had converted the first liter into
approximately 500 grams of benzyl cyanide.4 At the sentencing
hearing he argued that at the time of his arrest he was in
possession of 1,100 grams of benzyl chloride, a List II chemical,
and 500 grams of benzyl cyanide, a List I chemical. Arnold
insisted that, under the U. S. Sentencing Guidelines (the
"Guidelines"), when an offense involves both List I and List II
121 U.S.C. § 802(35)(c) (1994).
221 U.S.C. § 841(d)(1) (1994).
3See U.S. SENTENCING GUIDELINES MANUAL § 2D1.11(d)(4) (1997).
4Neither Arnold's written objections to the PSR nor the
probation office's response to such objections are included in the
record; however, the contents of such items were outlined during
the sentencing hearing.
2

chemicals, "you look at whichever chemical provides the highest
base offense level in order to determine what the base offense
level should be." Arnold surmised that, because 500 grams of
benzyl cyanide had a corresponding base offense level of 20 and
1,100 grams of benzyl chloride also had a corresponding base
offense level of 20, the correct base offense level was 20, the
highest base offense level corresponding to the chemicals present
on the date of his arrest.
The Government countered by addressing the testimony of one of
the DEA agents involved in Arnold's arrest. The agent testified
that, at the time of Arnold's arrest, all that remained of the
first liter of benzyl chloride was a small portion in the bottom of
the bottle. The agent testified further that Arnold stated that he
had spilled the first liter. Regarding Arnold's more recent
contention that he had used the first liter of benzyl chloride to
manufacture a controlled substance, the agent testified that a
yield of "much more than 500 grams" of benzyl cyanide would result;
that if Arnold had converted the first liter of benzyl chloride, a
yield of approximately one liter, or 1,100 grams, of benzyl cyanide
could be expected.
Observing that Arnold had pleaded guilty to a continuing
offense during which time he possessed 2,200 grams of benzyl
chloride, the district court overruled Arnold's objection to the
PSR and concluded that 24 was the appropriate base offense level.
The court sentenced Arnold to 52 months of imprisonment, and Arnold
timely appealed.
3

II
ANALYSIS
As his sole point of error on appeal, Arnold contends that the
district court erred in overruling his objection to the PSR. He
reasserts the sentencing methodology that he proposed at the
sentencing hearing, arguing that "[n]othing in U.S.S.G. § 2D1.11 or
in the case law suggests that [such is] incorrect." He also urges
that the district court should have made a finding as to the amount
of benzyl cyanide he possessed at the time of his arrest, but that
even assuming that he possessed 1,110 grams of benzyl cyanide "(as
the DEA agent asserts)," the resulting base offense level would
have resulted in a sentencing range lower than the sentence imposed
by the court. He further argues that, were a question to arise
concerning the proper application of § 2D1.11, "the resulting
answer would enure to his benefit under the rule of lenity."
The Government notes that Arnold pleaded guilty to a
continuing offense during which period he possessed 2,200 grams of
benzyl chloride. The Government thus argues that the trial court's
factual finding that Arnold possessed such a quantity of the
List II chemical was not erroneous.
Arnold's argument, however, is not based on the district
court's factual determination that 2,200 grams of benzyl chloride
were involved in the offense. Rather, Arnold challenges the
district court's application of the Guidelines in determining that
the issue of what became of the first liter of benzyl chloride was
immaterial for sentencing purposes.
4

We review a district court's application of the Guidelines
de novo.5 Arnold's argument is based on the Guidelines' provision
that if both List I and List II chemicals are involved, the
sentencing court should use the greater of the base offense level
for the List I chemicals or the List II chemicals.6 He insists
that, despite his admitted possession of 2,200 grams of benzyl
chloride during the span covered by the indictment to which he
pleaded guilty, his sentence should be based only on the amount of
benzyl chloride, or its resultant product, on hand at the time of
his arrest.
Although there is no guideline authority or case law expressly
rejecting Arnold's "logic," common sense dictates that the ultimate
fate of the first liter of benzyl chloride is irrelevant for
sentencing purposes. The rule of lenity does not abrogate common
sense.7
Arnold was not convicted of possessing both benzyl chloride
and benzyl cyanide. Rather, he admittedly possessed two liters of
benzyl chloride during the time bracketed by the indictment. Even
if no benzyl chloride had been discovered at the time of his
arrest, the court was well within the law when it sentenced him
based on the aggregate amount that he had possessed. Moreover, as
noted by the Government at the sentencing hearing, the Guidelines
5United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.),
cert. denied, 510 U.S. 895, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993).
6See § 2D1.11 cmt. 6; § 2D.11(d) n. *C.
7See United States v. Picquet, 963 F.2d 54, 56 (5th Cir.),
cert. denied, 506 U.S. 902, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992).
5

do not contemplate rewarding a defendant for going one step further
in the manufacture of controlled substances.8
III
CONCLUSION
Albeit a narrow one, the sentencing issue considered today is
res nova in this circuit. In holding that the trial court
correctly interpreted the applicable Guidelines provision when, in
calculating Arnold's sentence, it used the quantity of the listed
chemical contained in the factual resumé produced at his sentencing
hearing following his plea of guilty to the charge for which he was
indicted, we join at least two other circuits that have approbated
such an approach. In United States v. Miller,9 the Sixth Circuit
noted that a sentencing court is permitted to consider the quantity
of drugs a defendant admits to buying or selling, notwithstanding
that he might have possessed a lesser quantity at the time of his
arrest.10 Similarly, in United States v. Western,11 the Fourth
Circuit held that a defendant's statement regarding the quantity of
drugs in which he trafficked may properly form a basis for an
8See, e.g., § 2D1.11(c)(1)(providing that if offense involved
the manufacture of a controlled substance, the "manufacture"
guideline is applicable if it is greater than the "possession"
guideline).
9910 F.2d 1321 (6th Cir. 1990), cert. denied, 498 U.S. 1094,
111 S.Ct. 980, 112 L.Ed.2d 1065 (1991).
10Id. at 1327.
11Nos. 97-4387, 97-4386, 1998 WL 276299 (4th Cir. Apr. 6, 1998)
(per curiam).
6

offense level calculation.12 Here, Arnold pleaded guilty to
possessing 2200 grams of benzyl chloride. The district court
committed no error in using that quantity in its sentencing
calculus.
AFFIRMED.
12Id. at *5.
7