F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 21 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-3125
v.
(District of Kansas)
(D.C. No. 99-CR-40002-02-SAC)
RAED MOHAMMAD AL-
BATAINEH,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The court
therefore honors the parties’ requests and orders the case submitted without oral
argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After Raed Mohammad Al-Bataineh pleaded guilty to possession of
pseudoephedrine in violation of 21 U.S.C. § 841(d)(2), the district court
sentenced him to a term of imprisonment of twenty-eight months. On appeal, Al-
Bataineh asserts that the district court erred in refusing to reduce his offense level
pursuant to United States Sentencing Guidelines § 2D1.11(b)(2). This court
exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2)
and affirms.
Al-Bataineh was stopped by state law enforcement officials while driving
on Interstate-70 through Shawnee County, Kansas. Al-Bataineh agreed to a
request by the officers to search the vehicle. Inside the trunk, officers found an
exceedingly large number of bottles containing pseudoephedrine tablets; each
bottle had been opened and repackaged so that it contained at least twice, and
possibly as many as five times, the number of tablets indicated on the label. In
total, officers found 321,275 tablets of pseudoephedrine in the vehicle, weighing
approximately 19.3 kilograms.
Al-Bataineh was arrested following the stop and agreed to submit to an
interview with an agent of the Drug Enforcement Agency. During the interview,
Al-Bataineh admitted that he was “hauling” the pseudoephedrine from Ohio to
Nevada and that he was to be paid $1200 for doing so. Apparently, Al-Bataineh
had sold his business less than two months prior to the acts constituting the
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instant offense. He utilized part of the profits from that sale to finance the
purchase of the pseudoephedrine.
After local Kansas authorities declined to file charges, Al-Bataineh was
released from custody. Approximately two weeks later, Al-Bataineh was again
arrested for committing a similar offense in Oklahoma City, Oklahoma.
Al-Bataineh was eventually charged in United States District Court for the
District of Kansas with possessing “approximately 19 kilograms of
pseudoephedrine, a list I chemical, having reasonable cause to believe that the
listed chemical will be used to manufacture a controlled substance.” Al-Bataineh
eventually entered into a plea agreement with the government wherein he agreed
to plead guilty to the information and waive grand jury indictment. In return, the
government agreed to file no further charges for the actions at issue in the
information, to recommend a three-level downward adjustment for acceptance of
responsibility, and to file a motion for downward departure pursuant to U.S.S.G. §
5K1.1 to reflect Al-Bataineh’s substantial assistance to the government.
At the time of his plea, Al-Bataineh submitted the following statement
detailing his involvement in the offense:
On December 18, 1998, I was driving through the state of Kansas
with Mohammed Ahmad-Abu-Hardan. We were in a car which had
within it a lot of repackaged cold medicine (Minithins, mainly).
While I do not have a lot of knowledge about how drugs are
manufactured, based on the fact that the seals on the bottles had been
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broken, and five bottles worth of pills had been transferred to one
bottle, there was reasonable cause for me to believe that the drugs in
my car would eventually be used to help manufacture a controlled
substance.
I knew that the Minithins were in my car, and I knew we were taking
them to California to sell them for a profit. I am very sorry to have
violated the drug laws of the United States.
After the district court accepted Al-Bataineh’s guilty plea, the United States
Probation Office prepared a presentence investigation report (“PSR”). The PSR
concluded that Al-Bataineh had an offense level of 25 and a criminal history
category of I, resulting in a sentencing range of 57 to 71 months. The PSR
arrived at Al-Bataineh’s offense level by reference to the chemical quantity table
set out in U.S.S.G. § 2D1.11(d). Because Al-Bataineh possessed between six and
twenty kilograms of pseudoephedrine, he started with an offense level of 28. See
U.S.S.G. § 2D1.11(d)(2). The PSR recommended that Al-Bataineh receive a
three-level reduction in his offense level pursuant to U.S.S.G. § 3E1.1(a) and (b),
resulting in an ultimate offense level of 25.
Al-Bataineh objected to the PSR, asserting that his offense level should be
decreased by three additional levels pursuant to U.S.S.G. § 2D1.11(b)(2). That
section of the Guidelines provides as follows: “If the defendant is convicted of
violating . . . § 841(d)(2) . . . , decrease by 3 levels, unless the defendant knew or
believed that the listed chemical was to be used to manufacture a controlled
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substance unlawfully.” 1 In particular, Al-Bataineh asserted that although he
clearly violated § 841(d)(2) because he had reason to believe pseudoephedrine
would be used to manufacture a controlled substance, none of the information in
the PSR demonstrated he was actually aware the pseudoephedrine would be used
to manufacture illegal drugs.
In denying Al-Bataineh’s objection, the district court found as follows:
As the time of his plea, the defendant admitted that the broken
seals on the bottles and the packaging of five bottles worth of pills
into one bottle gave him reasonable cause to believe the
pseudoephedrine would be used to manufacture a controlled
substance. The offense conduct set out in the PSR includes more
incriminating and culpable circumstances than those admitted by the
defendant. The defendant sold his business in October of 1998 and
used part of the proceeds to pay for the pseudoephedrine involved in
the instant offense. The defendant was operating a vehicle on I-70 in
Shawnee County, Kansas, when law enforcement officers stopped
him on December 18, 1998. Officers searched the trunk of the
vehicle and found 11 cases and four additional boxes of pills called
“Mini-Pseudos.” The bottles in those cases had been opened and
more pills were added to each bottle. Officers found approximately
321,275 pills of pseudoephedrine. During his post-arrest interview,
1
The purpose behind this provision is elucidated as follows in the
commentary to U.S.S.G. § 2D1.11:
Convictions under . . . § 841(d)(2) . . . do not require that the
defendant have knowledge or an actual belief that the listed chemical
was to be used to manufacture a controlled substance unlawfully.
Where the defendant possessed or distributed the listed chemical
without such knowledge or belief, a 3-level reduction is provided to
reflect that the defendant is less culpable than one who possessed or
distributed listed chemicals knowing or believing that they would be
used to manufacture a controlled substance unlawfully.
U.S. Sentencing Guidelines Manuel § 2D1.11, cmt. n.7.
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the defendant admitted he was hauling the pseudoephedrine from
Ohio to Las Vegas, Nevada and that he was being paid $1,200 for his
services. Just over three weeks after his arrest for the instant
offense, the defendant was arrested in Oklahoma for possession of
368 bottles containing over 37,000 pills of pseudoephedrine.
From these circumstances, specifically, the defendant’s use of
his own money to purchase the pseudoephedrine, the sheer volume of
pills being transported, the defendant’s admission that he was being
paid to transport them to California, and his commission of the very
same criminal act less than a month after his arrest for the instant
offense, the court finds that the defendant knew or believed that the
pseudoephedrine was to be used to manufacture a controlled
substance.
Dist. Ct. Ruling on Objection to Presentence Report, at 3-4. Even though the
district court found that Al-Bataineh was not entitled to the benefit of
§ 2D1.11(b)(2), it did grant the government’s § 5K1.1 motion. Pursuant to that
motion, the district court sentenced Al-Bataineh to twenty-eight months
imprisonment, a sentence which is approximately one-half of the low end of the
applicable sentencing range absent Al-Bataineh’s requested reduction pursuant to
§ 2D1.11(b)(2).
On appeal, Al-Bataineh asserts both that the district court’s findings in
response to his objection are inadequate and that the record does not support the
district court’s conclusion that he “knew or believed” the pseudoephedrine would
be used to manufacture illegal drugs. Upon review of the record, this court
concludes that both contentions are without merit.
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This court “review[s] the district court’s legal interpretation of the
guidelines de novo, and review[s] its findings of fact for clear error, giving due
deference to the district court’s application of the guidelines to the facts.” United
States v. Burridge, 191 F.3d 1297, 1301 (10th Cir. 1999) (quotations omitted).
“We will not disturb the [district] court’s factual findings unless they are without
support in the record, or unless after reviewing all the evidence we are left with
the definite and firm conviction that a mistake has been made.” Id. (quotation
omitted).
Upon review of the district court’s “Ruling on Objection to Presentence
Report,” this court concludes that Al-Bataineh’s assertion that the district court
did not make sufficient findings is without merit. In response to the objection,
the district court began by noting that Al-Bataineh would be entitled to the three-
level reduction pursuant to 2D1.11(b)(2) “unless the court finds that the defendant
had actual knowledge or belief that the listed chemical was to be used to
manufacture a controlled substance.” Dist. Ct. Ruling on Objection to
Presentence Report, at 2. The district court further noted that the government
operated under the burden of proving that Al-Bataineh had the requisite actual
knowledge. See id. at 2-3. Nevertheless, the district court noted that Al-Bataineh
had not objected to any of the evidence set forth in the PSR and had not come
forward with any additional evidence relevant to the inquiry of actual knowledge.
-7-
See id. at 3. Accordingly, the district court pulled together all of the uncontested
evidence in the PSR; set forth that evidence, as detailed above, in coherent and
thoughtful manner; and found, in light of that uncontested evidence, that Al-
Bataineh knew or believed that the pseudoephedrine would be used to
manufacture illegal drugs. See id. at 4-5. In so doing, the district court clearly
complied with the obligation to make findings as to all “controverted matters” as
required by Fed. R. Crim. P. 32(c)(1).
We further conclude that the district court did not commit clear error in
finding, as a matter of fact, that Al-Bataineh knew or believed that the
pseudoephedrine would be used to manufacture illegal drugs. Al-Bataineh’s
primary thrust on appeal in this regard is that there is no direct evidence of intent
in the record. As this court has previously noted, however, “[i]ntent and
knowledge . . . can be inferred from surrounding circumstances and is rarely
capable of direct proof.” United States v. Leopard, 936 F.2d 1138, 1141 (10th
Cir. 1991) (quotations and citations omitted). The surrounding circumstances in
this case amply support the district court’s finding of intent. In particular, it must
be noted that Al-Bataineh invested a substantial sum of his own money to
purchase the pseudoephedrine and was expecting a substantial profit upon
delivery of the pseudoephedrine to Nevada. Furthermore, the number of
pseudoephedrine tablets at issue in this case is substantial: 321,275 tablets
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weighing more than nineteen kilograms. Al-Bataineh was aware that each bottle
of tablets had been opened and packed with a quantity of pills far in excess of the
contents listed on the label. Finally, Al-Bataineh committed the very same type
of criminal act less than a month after his arrest for the instant offense. Taken
together, these circumstances more than adequately support the district court’s
finding by a preponderance of the evidence that Al-Bataineh knew or believed the
pseudoephedrine would be used to manufacture illegal drugs.
In sum, the district court’s reliance on the uncontested facts in the PSR to
resolve the only contested matter, Al-Bataineh’s intent, was in accord with Fed.
R. Crim. P. 32(c)(1). In addition, the district court’s finding that Al-Bataineh
knew or believed the pseudoephedrine would be used to manufacture illegal drugs
is supported by the uncontested circumstantial evidence set forth in the PSR.
Accordingly, the sentence imposed by the United States District Court for the
District of Kansas is hereby AFFIRMED.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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