F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 15 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 01-4256
v. (D.C. No. 2:00-CR-328-01-J)
(D. Utah)
CASEY BECKSTEAD,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, McWILLIAMS, and HARTZ, Circuit Judges.
I. INTRODUCTION
Defendant Casey Joe Beckstead (“Beckstead”) was convicted by a jury of
one count of possession with intent to distribute fifty or more grams of actual
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)(A), 841(b)(1)(A); one
count of knowingly maintaining or opening a place for the purpose of
manufacturing, distributing, or using methamphetamine, in violation of 21 U.S.C.
§ 856(a)(1); one count of possession of pseudoephedrine for the manufacture of
*
This order and judgment is not binding precedent, except under the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.
methamphetamine, in violation of 21 U.S.C. § 841(d)(2); one count of attempt to
manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846; one
count of making and executing a plate designated to print a twenty dollar ($20)
Federal Reserve note, in violation of 18 U.S.C. § 474(a); one count of making and
executing a plate designated to print a fifty dollar ($50) Federal Reserve note, in
violation of 18 U.S.C. § 474(a); and one count of being a convicted felon in
possession of a firearm or ammunition, in violation of 18 U.S.C. § 922(g)(1). The
district court sentenced Beckstead to 360 months’ imprisonment. Beckstead
argues on appeal that: (1) the district court plainly erred in calculating the
quantity of actual methamphetamine that could be produced from the
pseudoephedrine; (2) the district court plainly erred in imposing a two-level
adjustment under U.S.S.G. § 2D1.1(b)(5) for the unlawful discharge, emission, or
release of hazardous or toxic substances; (3) the image of a Federal Reserve note
stored on a computer hard drive is not a “plate” within the meaning of 18 U.S.C.
§ 474(a); and (4) the district court violated the Ex Post Facto Clause of the United
States Constitution because it should have calculated Beckstead’s sentence under
the 1999 Sentencing Guidelines. Exercising jurisdiction pursuant to 28 U.S.C. §
1291, this court affirms.
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II. BACKGROUND
On May 10, 2000, officers from the Utah Major Crimes Task Force
executed a search warrant on a residence in Midvale, Utah. Upon entering the
residence, officers discovered items associated with methamphetamine
manufacturing or distribution, including: a heating mantle, a flask, chemical
bottles, a funnel, condensor columns connected to rubber tubing, a digital scale, a
monitor hooked to surveillance camera equipment, baggies containing a powder, a
police scanner, and a box of empty packets of pills containing pseudoephedrine.
Beckstead’s fingerprints were found on several of the items. The officers also
collected samples of powders, liquids, and chemicals associated with the
laboratory.
When the officers first arrived at the residence, they believed the laboratory
was in the cooking process. After discovering the lab was not operating, officers
executed a plan to dismantle the lab. During the dismantling, a vent bag used to
collect phosphine gas from the lab was punctured or ruptured, causing the gas to
leak out. Because phosphine gas is considered dangerous, the officers evacuated
the building.
William Steele (“Steele”), Beckstead’s original co-defendant, testified that
he assisted Beckstead in the manufacture of methamphetamine. Steele testified
that the manufacturing process began with extracting ephedrine from pills
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containing pseudoephedrine. He explained the entire cooking process and stated
that he and Beckstead had manufactured methamphetamine on at least five or six
occasions, resulting in the production of eight to ten ounces of methamphetamine
each time. Beckstead testified that Steele manufactured the methamphetamine
and that he was often not present during the cooking process.
Barbara Hopkins (“Hopkins”), a criminalist at the Utah State Crime
Laboratory, testified that the amount of actual methamphetamine recovered from
Beckstead’s residence was 235.8 grams. Hopkins also testified that
pseudoephedrine was present. Scott McDaniel, a criminalist at the Utah State
Crime Laboratory, identified packages of pseudoephedrine tablets located at the
residence. He concluded that the items seized in the search constituted nearly
everything necessary to reduce ephedrine to methamphetamine.
Also during the search, officers located a $20 bill underneath the lid of a
computer scanner. The officers then obtained two search warrants for
Beckstead’s computer and other items relating to forgery or counterfeiting.
Officers found printed images of the front side of a $20 bill and a $50 bill and an
assortment of paper. Three images of a $20 Federal Reserve note and one image
of a $50 Federal Reserve note were also discovered on Beckstead’s computer.
At the close of evidence at trial, the district court instructed the jury that a
“plate” included “any electronic method used for the acquisition, recording,
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retrieval, transmission, or reproduction of any obligation or other security of the
United States.” During jury deliberations, the jury asked the court, “Is one side of
a bill considered a plate?” The court responded, upon agreement of the parties,
that “a ‘plate’ is a device that makes an impression on the paper.”
The jury found Beckstead guilty on seven counts. Prior to sentencing, a
presentence report was prepared using the 2000 edition of the Sentencing
Guidelines. In calculating the base offense level, the amount of actual
methamphetamine was determined to be 1.8 kilograms. This amount was derived
from the 235.8 grams of actual methamphetamine recovered and 112 ounces of
pseudoephedrine recovered, which equated to 3175.2 grams of pseudoephedrine.
The author of the presentence report then determined that the 3175.2 grams of
pseudoephedrine equated to 1587.6 grams of actual methamphetamine. Thus,
Beckstead’s base offense level was set at 38.
Beckstead’s base offense level was increased by two levels under U.S.S.G.
§ 2D1.1(b)(1) for possession of a dangerous weapon. Two levels were also added
under U.S.S.G. § 2D1.1(b)(5)(A) because the “offense involved an unlawful
discharge, emission, or release into the environment of a hazardous or toxic
substance.” A two-level downward adjustment was given for acceptance of
responsibility. Thus, the total offense level was set at 40. Beckstead’s criminal
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history computation resulted in a category VI placement. As a result, the
guideline range for Beckstead’s conviction was 360 months to life imprisonment.
Beckstead filed objections to the presentence report. Specifically, he
argued that “the quantity of the controlled substance was over represented related
to the seized drug evidence.” At sentencing, the district court stated to defense
counsel, “You raised questions of quantity but I heard nothing from you on that
and I assume that you’re not pursuing that.” Defense counsel responded that
evidence would not be presented at that time.
In its findings and conclusions, the district court adopted the facts as stated
in the presentence report. The court also noted that Beckstead had failed to
establish that the quantity of methamphetamine was over-represented in the
presentence report. The district court sentenced Beckstead to 360 months’
imprisonment.
III. DISCUSSION
A. Drug Quantity
Beckstead argues that the district court failed to apply a proper conversion
rate and failed to consider the capacity of the laboratory equipment in determining
the quantity of methamphetamine involved in the offense. Beckstead
acknowledges that defense counsel failed to dispute the court’s determination of
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the quantity of methamphetamine involved for sentencing guideline purposes.
Thus, the parties have agreed that review of this issue is for plain error.
Plain error occurs when there is: “(1) an error, (2) that is plain, which
means clear or obvious under current law, and (3) that affects [a defendant’s]
substantial rights.” United States v. Whitney, 229 F.3d 1296, 1308 (10th Cir.
2000) (quotation omitted). Plain error review, however, is not appropriate if the
alleged error arises from a factual finding. United States v. Easter, 981 F.2d
1549, 1556 (10th Cir. 1992). This court has previously concluded that a district
court’s determination of the drug quantity involved in an offense is a question of
fact. United States v. Havens, 910 F.2d 703, 705 (10th Cir. 1990). Because
Beckstead is challenging the district court’s factual determination, there can be no
plain error review. See Easter, 981 F.2d at 1556.
B. U.S.S.G. § 2D1.1(b)(5)
Beckstead challenges the district court’s two-level upward adjustment
under U.S.S.G. § 2D1.1(b)(5) because the discharge or release of the phosphine
gas was caused by law enforcement officers while dismantling the lab and not by
Beckstead. Because Beckstead did not raise this issue with the district court, this
court will review for plain error. Id. at 1555. Plain error exists when the district
court committed a “clear and obvious [error that] is contrary to well-settled law.”
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Whitney, 229 F.3d at 1309. Section 2D1.1(b)(5) of the Sentencing Guidelines
provides:
If the offense involved (A) an unlawful discharge,
emission, or release into the environment of a
hazardous or toxic substance, or (B) the unlawful
transportation, treatment, storage, or disposal of a
hazardous waste, increase by 2 levels.
U.S.S.G. § 2D1.1(b)(5) (2000).
Beckstead argues that the language of § 2D1.1(b)(5) may be ambiguous
because the enhancement requires the defendant’s offense conduct to involve the
discharge of a toxic substance into the environment. As Beckstead acknowledges,
there is no case law that has addressed whether this enhancement applies to the
discharge, emission, or release of hazardous or toxic substances caused by law
enforcement officers during the dismantling of a drug laboratory. 1 In addition,
the enhancement, in conjunction with its commentary, does not unambiguously
require that the discharge, emission, or release be caused by the defendant.
Accordingly, because there is no well-settled law establishing that the defendant
must release the hazardous substance in order for § 2D1.1(b)(5) to apply, the
1
Section 2D1.1 has since been amended to allow an increase of three levels
if the offense involved the manufacture of methamphetamine and created a
substantial risk of harm to human life or to the environment. U.S.S.G. §
2D1.1(b)(5)(B) (2002).
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district court did not plainly err in applying the enhancement to Beckstead’s
offense level.
C. Counterfeiting Plate
Beckstead argues that there was insufficient evidence for the jury to convict
him for making or executing a “plate” under 18 U.S.C. § 474(a) (2000).
Specifically, Beckstead argues that an image on a computer hard drive is not a
plate. Although Beckstead raises the issue as a sufficiency of the evidence claim,
the issue of whether the image stored on a computer hard drive constitutes a plate
is a question of statutory interpretation subject to de novo review. See United
States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990) (stating standard of
review for statutory interpretation questions). Under 18 U.S.C. § 474(a), an
individual is guilty of a class B felony if he or she “makes or executes any plate,
stone, or other thing in the likeness of any plate designated for the printing of
such obligation or other security.” The indictment under which Beckstead was
charged referred only to a “plate.” According to the version of the statute in
effect at the time Beckstead was indicted, the statute defined “plate” to include
“any electronic method used for the acquisition, recording, retrieval, transmission,
or reproduction of any obligation or other security.” 2 18 U.S.C. § 474(b) (2000).
2
The statute was amended in 2001 to remove the definition of “plate” and
add a definition of “analog, digital, or electronic image.” 18 U.S.C. § 474(a)
(2000 & Supp. 2001). Beckstead attempts to highlight this change in his favor by
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Beckstead contends that the image stored on a computer hard drive is not a plate
within the meaning of the statute. In this case, Beckstead scanned Federal
Reserve notes into his computer, stored the images on his computer hard drive,
and printed the images onto paper. Because the computer hard drive was an
electronic method used to record the note, the stored image fell within the
statutory definition of plate. In addition, the use of the scanner would also
coincide with the meaning of “plate” as set forth in the statute because the
scanner is an electronic method used to transmit images of the notes onto the
computer. Finally, the printer could also qualify as a plate under the statute
because a printer is an electronic method used to reproduce the notes from the
image stored on the computer.
Beckstead argues, in the alternative, that the computer hard drive with the
stored images does not constitute a plate because the images of the Federal
Reserve notes were only one side of each note. There is no case law that has
interpreted whether the computer-stored image of one side of a note constitutes a
plate. This court, however, concludes that the analysis in Dixon v. United States,
446 F. Supp. 236 (D. Md.), aff’d, 588 F.2d 90 (4th Cir. 1978), is persuasive. In
stating that the amended version only now addresses scanning a note into the
computer. This court, however, concludes that Beckstead’s argument is
unconvincing because a scanner, computer hard drive, and printer fall within the
broad definition of an “an electronic method” under the previous statute.
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Dixon, the defendant argued that photograph negatives could not be “thing”
within the meaning of § 474. Id. at 239. The court applied the doctrine of
esjudem generis and noted that the term “thing,” when joined with the terms
“plate” and “stone” created a category that included “all objects which can be
used in counterfeiting.” Id. Although the court in Dixon was interpreting a
separate provision under § 474, the identical category of “plate, stone, or other
thing” is used within the provision under which Beckstead was indicted. See id.
at 237; 18 U.S.C. § 474(a). This court adopts the Dixon court’s reasoning and
concludes that a “plate” is an object designated for the printing of an obligation
or other security. Id.
This reasoning is further supported by cases from other circuits that have
concluded that a note printed only on one side is sufficient to sustain a conviction
for possession of a counterfeit obligation or other security under a different
provision of § 474. See, e.g., United States v. Turner, 586 F.2d 395, 396-98 (5th
Cir. 1978); United States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999). For
example, in Harrod, the defendant generated black and white photocopies of one
side of a note in order to obtain real money from change machines. Harrod, 168
F.3d at 892. Thus, a plate consisting of only one side of a note could be used to
generate counterfeit obligations that successfully pass as legitimate obligations.
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Because the image of one side of a note stored on Beckstead’s computer
hard drive is an object from which an obligation or security could be printed and a
defendant can be liable under § 474 for one-sided counterfeit obligations or other
securities, the computer-stored one-sided image sufficiently constitutes a plate. 3
Accordingly, this court upholds Beckstead’s convictions for making or executing
a plate designated for the printing of an obligation or other security in violation of
18 U.S.C. § 474(a) (2000).
D. Ex Post Facto
Beckstead argues that the district court violated the Ex Post Facto Clause of
the United States Constitution when it applied the more onerous 2000 Sentencing
Guidelines to calculate his sentence instead of the 1999 Sentencing Guidelines.
Because Beckstead failed to object to the application of the 2000 Sentencing
Guidelines, this court will review the issue for plain error. See United States v.
Price, 265 F.3d 1097, 1107 (10th Cir. 2001). Ordinarily, a defendant is sentenced
under the Guidelines that are in effect at the time of sentencing. United States v.
Farrow, 277 F.3d 1260, 1264 (10th Cir. 2002). If, however, the application of the
Sentencing Guidelines in effect at sentencing would violate the Ex Post Facto
Clause of the United States Constitution, a court shall use the Sentencing
3
Beckstead does not assert that the plates were made or executed for
legitimate purposes. See 18 U.S.C. § 474(b).
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Guidelines in effect on the date the offense was committed. U.S.S.G. §
1B1.11(a)-(b).
The 2000 Sentencing Guidelines establishes a base offense level of 38 for
an offense involving 1.5 kilograms or more of actual methamphetamine. U.S.S.G.
§ 2D1.1(c)(1) (2000). The 1999 Guidelines established a base offense level of 36
for an offense involving at least one kilogram but less than three kilograms of
actual methamphetamine. U.S.S.G. § 2D1.1(c)(2) (1999). Beckstead’s base
offense level would have been less under the 1999 Sentencing Guidelines.
The government concedes that the 1999 Sentencing Guidelines should have
been applied. Using the 1999 Sentencing Guidelines, Beckstead’s total base
offense level would be 38, instead of 40. Applying Beckstead’s criminal history
category of VI to an offense level of 38 results in the same guideline range as
applied to an offense level of 40, i.e., 360 months to life imprisonment. Thus,
even if the district court applied the 1999 Sentencing Guidelines, Beckstead’s
sentencing range would remain at 360 months to life imprisonment. Therefore,
the district court did not commit plain error when it sentenced Beckstead under
the 1999 Sentencing Guidelines. See United States v. Williams, 919 F.2d 1451,
1458 (10th Cir. 1990) (concluding error was harmless when sentencing guideline
range remained the same).
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IV. CONCLUSION
For the above stated reasons, Beckstead’s convictions and sentence are
affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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