UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 01-51205
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTT WILLIAM JESSUP,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
September 4, 2002
Before KING, Chief Judge, and JONES and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Scott William Jessup appeals his conviction for possession of pseudoephedrine with intent to
manufacture methamphetamine and his attendant sentence.
A San Antonio police officer on patrol stopped a pickup truck to issue a citation for
unlawfully riding in the open bed of the truck. While the officer was questioning the truck’s driver
about a discrepancy between the license plates and the vehicle registration, the officer noticed that
the bed of the truck contained items that he knew were commonly used to manufacture
methamphetamine. The officer called for narcotics investigators to respond t the scene. The
o
officers identified the man riding in the open bed of the truck as Jessup. Jessup was arrested on an
outstanding warrant for a parole violation.
The driver of the pickup signed a consent to search form. In the course of the search, the
officers uncovered a large footlocker containing 27.9 grams of pseudoephedrine (an immediate
precursor for the manufacture of methamphetamine) and other items used to make methamphetamine,
including a pyrex dish, a coffee pot with Jessup’s fingerprints, filters, funnels, plastic and glass jars,
ph paper, and muriatic acid. The officers also found a black gym bag containing a methamphetamine
recipe, a chemistry book, a shopping list containing items used to manufacture methamphetamine,
and an address book belonging to Jessup. They discovered more methamphetamine ingredients and
equipment in the bed of the truck, including iodine crystals, several match boxes (the strike plates on
the boxes contain red phosphorous, a methamphetamine ingredient), and a bag containing tubing and
hose clamps.
The driver told the officers that the items belonged to Jessup and that he was helping Jessup
move. The officers later interviewed Mary Posey, the owner of Jessup’s former residence, who said
that she had asked Jessup to move out and had packed his belongings. Jessup eventually pleaded
guilty to one count of possession of pseudophedrine with intent to manufacture methamphetamine
in violation of 21 U.S.C. § 841(d)(1).1
On appeal, Jessup challenges the district court’s denial of his untimely motion to suppress the
1
Technical amendments to the Hillory J. Farias and Samantha Reid Date-Rape Drug
Prohibition Act of 2000, Pub. L. No. 106-172, § 9, 114 Stat. 7 (2000) redesignated former
subsection (d) as subsection (c), and the offense to which Jessup plead guilty can now be found at
21 U.S.C. § 841(c)(1).
-2-
evidence found in the pickup truck. Jessup’s guilty plea waived any right he might otherwise have
had to appeal the denial of the suppression motion. See United States v. Wise, 179 F.3d 184, 186
(5th Cir. 1999). In Wise, we explained that when “a trial court denies a motion to suppress evidence
and the defendant subsequently enters an unconditional plea of guilty, the defendant has waived the
right to raise further objection to that evidence.” Id. Here, Jessup’s plea did not specify that it was
conditional. See id. (“Conditional pleas must be made in writing, consented to by the prosecution,
and approved by the court.”). As such, he has waived any right to challenge the denial of the
suppression motion.
Jessup also appeals the district court’s sentence on the grounds that, although he intended to
produce methamphetamine, he did not attempt to do so. U.S.S.G. § 2D1.11 governs sentencing for,
among other offenses, possession of listed chemicals like pseudoephedrine. Section 2D1.11(c)
contains a “cross reference.” The cross-reference provides that if “the offense involved . . .
attempting to manufacture a controlled substance [like methamphetamine] unlawfully, apply
[U.S.S.G.] § 2D1.1 . . . if the resulting offense level is greater than that determined above” (emphasis
added). In order to show that the defendant attempted to manufacture methamphetamine, the
government must show that the defendant “(1) acted with the required criminal intent, and (2)
engaged in conduct constituting a ‘substantial step’ toward commission of the substantive offense.’”
United States v. Anderson, 987 F.2d 251, 255-56 (5th Cir. 1993) (setting forth the elements for the
crime of attempt to manufacture methamphetamine); see also U.S.S.G. § 2D1.11 cmt. n.2 (explaining
that the definition of “attempt” to manufacture methamphetamine for the purposes of the sentencing
guidelines is the same as the definition of the substantive offense of attempt to manufacture
methamphetamine).
-3-
The probation officer determined that Jessup had attempted to manufacture
methamphetamine, and therefore applied the cross reference. Jessup objected on the grounds that
his actions constituted only “mere preparation,” that he had not taken any “substantial step” toward
the manufact ure of methamphetamine. He also argued that he did not know how to manufacture
methamphetamine, even though he had seen it done. The government relied on a Tenth Circuit case,
United States v. Smith, 264 F.3d 1012 (10th Cir. 2001), in which the court upheld a sentence under
the § 2D1.11(c) cross reference on substantially similar facts. The government also argued that the
pseudoephedrine found with Jessup had already been separated into its post-distillate phase. It
argued that using pseudoephedrine to make methamphetamine involved a two-step process. The
pseudoephedrine first has to be separated into a post-distillate form from cold, sinus, allergy or other
similar tablets. The separated pseudoephedrine can then be used to make methamphetamine.
According to the government, the pseudoephedrine found with Jessup had already undergone the first
step in this process.
The district court sided with the government, holding that “I think in this case there was intent
and there was indeed something that went beyond mere preparation and represented a substantial step
toward the commission of the offense of manufacture of methamphetamine.” It therefore applied the
cross reference and sentenced Jessup under the harsher § 2D1.1 guideline.
On appeal from sentencing decisions, we review the district court’s application of the
sentencing guidelines de novo, accepting the district court’s findings of fact unless clearly erroneous.
United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995). Beyond even the clearly
erroneous standard, we are also explicitly required by statute to give “due deference to the district
court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e) (emphasis added); United
-4-
States v. Maseratti, 1 F.3d 330, 339 (5th Cir. 1993).
Here, the district court correctly identified the governing law: that attempt requires intent and
conduct constituting a “substantial step” toward the commission of the offense. We therefore review
its application of the rule to the facts of this case with the “due deference” required by the statute.
Cf. Smith, 264 F.3d at 1016 (“The ‘substantial step’ question appears to be a factual one, or at least
one regarding the application of the guidelines to a particular set of facts.”); United States v.
Montayne, 966 F.2d 190, 191 (8th Cir. 1993) (“Whether a defendant’s conduct amounts to a
substantial step necessarily depends on the facts of each case.”).
Applying due deference, we cannot say that the district court erred in concluding that Jessup
took a substantial step toward manufacturing methamphetamine. We have described a “substantial
step” toward the commission of the crime as a step “strongly corroborative of the firmness of the
defendant’s criminal intent.” United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974). The
affirmative act of collecting a substantial part of the equipment and ingredients for manufacturing
methamphetamine can constitute action beyond “mere preparation” sufficient to constitute a
substantial step. See United States v. Fooladi, 764 F.2d 1027 (5th Cir. 1984); United States v.
Anderson, 987 F.2d 251, 255-56 (5th Cir. 1993); United States v. Stone, 960 F.2d 426, 433-34 (5th
Cir. 1992). In Fooladi, we upheld Fooladi’s conviction for attempt to manufacture amphetamines
based on the Drug Enforcement Agency’s seizure from Fooladi’s residence of P-2-P, an immediate
precursor of amphetamines, and several formulas for converting P-2-P into amphetamines. Fooladi
also confessed to the agents that he intended to convert the P-2-P to amphetamines. We found that
this evidence was sufficient to support a jury verdict for attempt.
Here, Jessup possessed pseudoephedrine, an immediate precursor to methamphetamine, along
-5-
with a substantial number of other ingredients for producing methamphetamine. Like Fooladi, Jessup
possessed a recipe for converting the precursor drug into the final form. Jessup also plead guilty to
intent to manufacture methamphetamine, and therefore acknowledged that he intended to finalize the
process of converting the pseudoephedrine into methamphetamine. Applying deference, we cannot
conclude that the district court erred in finding that Jessup had assembled sufficient equipment,
ingredients, and instructions to have crossed the line between “mere preparation” and a “substantial
step.”
We therefore AFFIRM Jessup’s conviction and his sentence.
AFFIRMED.
-6-