United States v. Bogusz

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

12-28-1994

United States v. Bogusz
Precedential or Non-Precedential:

Docket 92-5575

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 92-5575
___________

UNITED STATES OF AMERICA,
Appellee

v.

DONALD BOGUSZ, a/k/a Bogey,
Appellant

(D.C. Criminal Action No. 91-00401-4)
___________

No. 92-5595
___________

UNITED STATES OF AMERICA,
Appellee

v.

JOHN O'ROURKE, a/k/a Hap,
Appellant

(D.C. Criminal Action No. 91-00401-7)
___________

Appeal from the United States District Court
for the District of New Jersey

___________

Argued: August 9, 1994

PRESENT: HUTCHINSON and NYGAARD, Circuit Judges,
and LUDWIG, District Judge*

(Filed December 28, 1994)

____________

_______________

* Hon. Edmund V. Ludwig, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Glenn A. Zeitz, Esquire (Argued)
Julia S. Ingersoll, Esquire
Zeitz & Talty
Suite 2628
1700 Market Street
Philadelphia, PA 19103
Attorneys for Appellant Donald Bogusz

Dennis A. Durkin, Esquire
David D.F. Lawrence, Esquire (Argued)
Durkin & Durkin
Suite 1700
Gateway One
Newark, NJ 07102-5311
Attorneys for Appellant John O'Rourke

Michael Chertoff, Esquire
Edna B. Axelrod, Esquire
Leslie F. Schwartz, Esquire (Argued)
Office of United States Attorney
Room 502
970 Broad Street
Newark, NJ 07102
Attorneys for Appellee

____________

OPINION OF THE COURT
____________

HUTCHINSON, Circuit Judge.

Appellants, Donald Bogusz ("Bogusz") and John O'Rourke

("O'Rourke"), appeal criminal sentences imposed on them by the

United States District Court for the District of New Jersey.1

The district court sentenced Bogusz to 120 months and O'Rourke to

168 months of imprisonment for their criminal involvement with a
1
. O'Rourke also appeals his conviction. In that respect, he
argues: (1) that the district court erred in refusing to sever
his trial from his co-defendants and (2) that the variance
between the proof at trial and the indictment unduly burdened
him. Upon review, we hold that these issues lack merit.
methamphetamine laboratory. Because the district court

erroneously interpreted the United States Sentencing Guidelines

(the "Guidelines"),2 it miscalculated Bogusz's and O'Rourke's

sentences. Therefore, we will vacate both their sentences and

remand for resentencing.

I. Background

Because this appeal focuses on sentencing, only a

summary of the facts material to the sentencing issues is needed.

On August 29, 1991, a federal grand jury returned an indictment

against twelve individuals, including Bogusz and O'Rourke,

charging them with participation in a scheme to manufacture and

distribute methamphetamine. Bogusz located and obtained

glassware and phenylacetic acid, a methamphetamine precursor, for

the methamphetamine production process. O'Rourke served as a

"plumber." In that capacity, he unclogged drains that became

blocked during the methamphetamine manufacturing process.

Bogusz and O'Rourke received methamphetamine as part of

the consideration for their services. O'Rourke received four of

the eight pounds of methamphetamine produced while he worked on

the pipes and Bogusz got one pound. The methamphetamine produced

was described as "sticky" and "like caramel" indicating its poor

quality. In fact, Bogusz gave half of his methamphetamine to a

2
. Unless otherwise stated, all references to the Guidelines are
to the 1991 version, the Guidelines in effect at the time of the
appellants' sentencing. See 18 U.S.C.A. § 3553(a)(4) (West
1985).
co-conspirator and returned the other half because of its poor

quality.

On March 17, 1992, Bogusz pled guilty under a plea

agreement to a conspiracy to distribute more than two pounds of

phenylacetic acid, a listed chemical, knowing that it would be

used to manufacture methamphetamine, a controlled substance, in

violation of 21 U.S.C.A. § 841(d)(2) (West Supp. 1994). On

May 14, 1992, after a jury trial, O'Rourke was convicted of a

conspiracy to manufacture methamphetamine with intent to

distribute in violation of 21 U.S.C.A. § 846 (West Supp. 1994)

and possession with intent to distribute in excess of one

kilogram of methamphetamine in violation of 21 U.S.C.A.

§ 841(a)(1) (West Supp. 1994).

At Bogusz's sentencing, the district court adopted a

recommendation in the probation office's Presentence Report (the

"PSR") to apply a higher base offense level than the one

stipulated in Bogusz's plea agreement. Bogusz and the government

had stipulated to a base offense level of 24, applying U.S.S.G.

§ 2D1.11(d)(3); but the PSR recommended applying U.S.S.G. § 2D1.1

with a base offense level of 34. Using a cross-reference from

section 2D1.11(c)(1) to section 2D1.1, the district court decided

the base offense level was 34. Because phenylacetic acid is not

included in section 2D1.1's Sentencing Table, use of section

2D1.1 required conversion of the phenylacetic acid quantities to

those of a substance on the table. The probation officer

preparing the PSR converted the eight pounds of phenylacetic acid
to two pounds of methamphetamine, the amount of methamphetamine

produced from the phenylacetic acid.

The PSR also recommended that sentencing be based upon

"methamphetamine (actual)" as opposed to "methamphetamine."3 The

base offense level for two pounds of methamphetamine (actual)

under section 2D1.1 was 34. U.S.S.G. § 2D1.1(c)(5) (Drug

Quantity Table). This ultimately resulted in Bogusz's 120-month

sentence. Sentencing under section 2D1.11(d)(3), with its base

level of 24, in accord with the stipulation in the plea

agreement, would have resulted in a sentencing range of 51 to 63

months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). Applying

a two level reduction for acceptance of responsibility and a

criminal history category of III to this offense level, the

Guidelines indicated that Bogusz should be sentenced to 151 to

188 months of imprisonment. Id. Because the statutory maximum

sentence under 21 U.S.C.A. § 841(d) is 120 months, the district

court sentenced Bogusz to 120 months. See U.S.S.G. § 5G1.1(a)

("Where the statutorily authorized maximum sentence is less than

the minimum of the applicable guideline range, the statutorily

authorized maximum sentence shall be the guideline sentence.");

see also United States v. Donley, 878 F.2d 735, 741 (3d Cir.
1989) ("the underlying statute shall control in case of conflict

with the Sentencing Guidelines"), cert. denied., 494 U.S. 1058

(1990).
3
. Section 2D1.1 subjects methamphetamine (actual) to a more
severe base offense level. What the phrase methamphetamine
(actual) means is an issue in these appeals which we discuss
infra in Part III-A.
 At O'Rourke's sentencing, the district court again

adopted the PSR's recommendation to apply U.S.S.G. § 2D1.1 and

again decided that the methamphetamine was methamphetamine

(actual). Based on the eight pounds of methamphetamine produced

when he worked on the pipes, O'Rourke received a base offense

level of 38, see U.S.S.G. § 2D1.1(c)(3), but the district court

granted O'Rourke a four point offense level reduction for his

mitigating role. See U.S.S.G. § 3B1.2(a). Using a criminal

history category of II and an offense level of 34, the Guidelines

put O'Rourke in a sentencing range of 168 to 210 months

imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

O'Rourke was sentenced to concurrent sentences of 168 months

imprisonment on each count. Both Bogusz and O'Rourke filed

timely notices of appeal.

II. Jurisdiction and Standard of Review

The district court had subject matter jurisdiction over

these criminal cases pursuant to 18 U.S.C.A. § 3231 (West 1985).

We have appellate jurisdiction over this consolidated appeal

under 28 U.S.C.A. § 1291 (West 1993) (review of final decisions)

and 18 U.S.C.A. § 3742 (West 1985) (review of sentences).

Under the Guidelines, we review a district court's

findings of fact for the limited purpose of determining whether

they are clearly erroneous. United States v. Miele, 989 F.2d
659, 663 (3d Cir. 1993); United States v. Belletiere, 971 F.2d

961, 964 (3d Cir. 1992); see also 18 U.S.C.A. § 3742(e) (West
Supp. 1994) (reviewing courts "shall accept the findings of fact
of the district court unless they are clearly erroneous").

Findings of fact are clearly erroneous when "the reviewing court

on the entire evidence is left with the definite and firm

conviction that a mistake has been committed." United States v.

U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Findings involving

mixed questions of law and fact are subjected to a more demanding

scrutiny "approaching de novo review as the issue moves from one

of strictly fact to one of strictly law." Belleteire, 971 F.2d

at 964 (quoting United States v. Murillo, 933 F.2d 195, 198 (3d

Cir. 1991)). When the essential facts are not in dispute, our

review of the district court's interpretation of the Guidelines,

like our review of a statute's interpretation, is plenary. See

United States v. Rosen, 896 F.2d 789, 790-91 (3d Cir. 1990). We

must, however, defer to the Sentencing Commission's

interpretation of the Guidelines unless "it violates the

Constitution or a Federal Statute, or is inconsistent with, or a

plainly erroneous interpretation of, that [provision]." Stinson

v. United States, 113 S. Ct. 1913, 1915 (1993).

III. Discussion
Bogusz raises four challenges to the district court's

sentences. O'Rourke joins with him in two. First, both contend

that the district court erred in finding the unanalyzed

methamphetamine, upon which their sentencing was based, to be

methamphetamine (actual). Second, both argue that the district

court erred in tacitly finding that the methamphetamine was

Dextro-methamphetamine ("D-methamphetamine") as opposed to Levo-
methamphetamine ("L-methamphetamine"). Third, Bogusz argues that

U.S.S.G. § 2D1.1 does not apply to violations of 21 U.S.C.A.

§ 841(d)(2) (West Supp. 1994), and that U.S.S.G. § 2D1.11 is the

only Guidelines provision applicable to this offense. Fourth,

Bogusz contends that the government is violating its plea

agreement with him by arguing for affirmance of the district

court's sentence. We will address each challenge in turn.

A. Guidelines' Treatment of Methamphetamine

To apply U.S.S.G. § 2D1.1, a sentencing court must

first determine whether the substance in question is

methamphetamine or methamphetamine (actual). This determination

involves two related issues. We must first consider whether the

methamphetamine that Bogusz and O'Rourke helped produce was

"pure" methamphetamine, a necessary condition for its

classification as methamphetamine (actual), and then the more

complex question of whether the government must also prove that

the substance is D- or L-methamphetamine.

1. Methamphetamine (Actual)
The difference between methamphetamine and

methamphetamine (actual) is highly significant for sentencing

purposes: methamphetamine (actual) is subject to an offense

level ten times greater than methamphetamine. See U.S.S.G.

§ 2D1.1, comment.(n.10) (Drug Equivalency Table) (one gram of

methamphetamine (actual) is treated as the equivalent of ten

grams of marijuana while one gram of methamphetamine is
equivalent to one gram of marijuana); see also United States v.

Lande, No. 94-8038, 1994 WL 627425, at *5 n.1 (10th Cir. Nov. 9,

1994); United States v. Carroll, 6 F.3d 735, 744 (11th Cir. 1993)

(discussing the effect on sentencing) (citing United States v.

Brown, 921 F.2d 785, 789 & n.2 (8th Cir. 1990)), cert. denied

sub. nom., Jessee v. United States, 114 S. Ct. 1234 (1994).

The district court defined methamphetamine (actual) as

"pure methamphetamine."4 The court then explained:
Well, pure is how you define "pure." I'm
defining it, "pure," as uncut product, not
whether the product was good product or bad
product. Now that may be erroneous, in which
case I'll be reversed on appeal. But the
fact of the matter is that a caramel-like
mess to me is not the critical point; the
point is, that's what came out of the
manufacturing process, and it had not yet
been cut.

Bogusz Appendix at 85. Bogusz and O'Rourke argue that

methamphetamine (actual) refers to the percentage purity of the

end product. That is, they argue that methamphetamine (actual)

refers to the net amount of methamphetamine hydrochloride present

in the substance upon which sentencing is based.

The Guidelines' commentary defines methamphetamine

(actual) as "the weight of the controlled substance, itself,

contained in the mixture or substance." U.S.S.G. § 2D1.1(c),

comment.(n.*).5 The Guidelines also provide the following

4
. Prior to the 1991 amendments, the Guidelines also used the
term pure instead of actual. See U.S.S.G. App. C., amend. 395.
5
. In this respect, the Guidelines' treatment of methamphetamine
and PCP is contrary to the gross weight method of calculating the
illustrative example: "a mixture weighing 10 grams containing

PCP at 50% purity contains 5 grams PCP (actual)." Id. (under the

Guidelines, PCP and methamphetamine are treated identically).

Unfortunately, the commentary to the Guidelines is

susceptible to either interpretation of "pure," and each has case

law support. Compare United States v. Macklin, 927 F.2d 1272,

1282 (2d Cir.) (holding that "pure" merely means uncut or

unadulterated), cert. denied, 112 S. Ct. 146 (1991); United

States v. Patrick, 983 F.2d 206 (11th Cir. 1993) (same in dicta)

with Carroll, 6 F.3d at 746 ("the only way to calculate the

quantity of 'pure methamphetamine' in determining a defendant's

base offense level under § 2D1.1(c) is to multiply the purity of

the mixture times the weight"), cert. denied sub. nom., Jessee v.

United States, 114 S. Ct. 1234 (1994); United States v. Rusher,

966 F.2d 868, 880 (4th Cir.) (same), cert. denied, 113 S. Ct. 351

(1992); United States v. Alfeche, 942 F.2d 697, 699 (9th Cir.

1991) (same); United States v. Brown, 921 F.2d 785, 789-90 (8th

Cir. 1990) (same); see also United States v. Spencer, 4 F.3d 115,

122 (2d Cir. 1993) (noting that pure methamphetamine does not

include the weight of impurities).

At oral argument, the government argued that adoption

of the appellants' interpretation would reward them for being

"poor cooks." Transcript of Oral Arguments at 46. This

contention reflects a fundamental misunderstanding of
(..continued)
quantity of all other controlled substances. See Chapman v.
United States, 111 S. Ct. 1919, 1926 (1991). The gross weight
method is known as a "market oriented approach." Id. at 1925.
methamphetamine production and the Guidelines' treatment of it.

Sentencing for methamphetamine drug offenses is intended to

punish all cooks equally. Sentencing under methamphetamine

(actual) punishes particularly good cooks and their employers

more severely. Methamphetamine, as produced through normal

chemical processes, contains a number of impurities. See

Spencer, 4 F.3d at 121 (noting that methamphetamine results from

a "chemical reaction which yields a mixture of methamphetamine

and various impurities"); United States v. Stoner, 927 F.2d 45,

47 (1st Cir.) (noting that methamphetamine "virtually never is

completely pure"), cert. denied, 112 S. Ct. 129 (1991). The

initial product can then be processed further to remove these

impurities. The purified product, being more concentrated, can

then be cut into larger quantities for resale. The

interpretation Bogusz and O'Rourke urge on us does not reward bad

cooks; instead, it merely punishes more severely the

sophisticated cooks who could otherwise manipulate the Guidelines

by producing smaller quantities of more concentrated

methamphetamine.

The government's reliance on Chapman v. United States,
111 S. Ct. 1919, 1925 (1991), and its discussion of Congress'

"market-oriented" approach is also misplaced. As the Supreme

Court noted in Chapman, Congress and the Guidelines identified

methamphetamine and PCP as drugs warranting differential

treatment with regard to purity and thus provided for their

unique sentencing scheme. See id. at 1924. An interpretation of

purity that relies upon the treatment of other controlled
substances conflicts with the Guidelines' unique treatment of

methamphetamine.

After consideration of the text and commentary of the

Guidelines, existing case law and the peculiar sentencing scheme

for methamphetamine, we hold that methamphetamine (actual) refers

to the net amount of methamphetamine hydrochloride produced and

not the gross amount of uncut methamphetamine. Thus,

methamphetamine (actual) refers to the net amount of

methamphetamine hydrochloride after all impurities, waste, by-

products, or cutting agents are removed.

The government argues that Bogusz and O'Rourke did not

show that the methamphetamine "contained a cutting agent, waste

product, or any substance other than the controlled substance

itself." Brief of Appellee at 46. In essence, the government is

arguing that defendants bear the burden of showing the portion of

the substance that is not methamphetamine (actual). This

argument fails. Although the purity of a methamphetamine product

does not bear on a defendant's guilt or innocence and, thus, does

not invoke the "beyond a reasonable doubt" standard of In re

Winship, 397 U.S. 358, 360 (1970), it does have a profound effect

on the sentence imposed, and the government bears the burden of

proving it, albeit by only a preponderance of the evidence. See

United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993).

In some situations, a chemical analysis of the

substance that indicates its purity may be required for the

government to meet this burden. In others, circumstantial

evidence of purity may be sufficient. We hold only that the
government must produce evidence of the quantity of

methamphetamine hydrochloride the mixture in question contains if

a defendant is to be sentenced under U.S.S.G. § 2D1.1 for

methamphetamine (actual).

In this case, some of the evidence produced at trial

supports the district court's tacit finding of 100% purity.

Trial testimony showed that the defendants were in possession of

a functional recipe, proper equipment, and requisite chemicals.

There was, however, other evidence on the color and consistency

of the product which indicated poor quality and could have

supported a finding of impurity. Manufactured methamphetamine is

not 100% pure regardless of the sophistication of the equipment.

Therefore, the government cannot rely solely on the nature of the

production process and assume that the total product is pure

methamphetamine which calls for sentencing under methamphetamine

(actual). Instead, we think there should be a finding, based on

evidence, on how much methamphetamine hydrochloride is included

in the mixture that constitutes the end product. Because the

district court failed to make such a finding, we will remand for

further fact finding on the purity of the product.6

6
. It has sometimes been suggested that giving the government a
second chance to make the requisite showing that it was unable to
achieve originally is inconsistent with the Double Jeopardy
Clause of the Fifth Amendment. This Court, however, has held
that "sentencing proceedings are not . . . so trial-like as to
implicate the Double Jeopardy Clause." Wilmer v. Johnson, 30
F.3d 451, 458 (3d. Cir.), cert. denied, 63 U.S.L.W. 3347 (U.S.
Oct. 31, 1994) (No. 94-5891); see also Caspari v. Bohlen, 114
S. Ct. 948, 957 (1994) (refusing to decide this issue).
 2. Organic Composition

On the second aspect of methamphetamine sentencing,

both Bogusz and O'Rourke challenge the district court's tacit

assumption that the methamphetamine was D-methamphetamine as

opposed to L-methamphetamine. The two are grossly different in

physiological effect and, as we shall see, this difference is

reflected in the Guidelines drug equivalency tables by a factor

of 250 to 1. An initial failure of the parties to appreciate the

chemistry involved and thus to inform the district court of the

scientific basis for this contention requires us to consider

whether Bogusz and O'Rourke have waived any issue regarding the

distinction between D-and L-methamphetamine. Discussion of the

principles of organic chemistry that underlie this issue is

necessary before the problem created by the distinction between

D- and L-methamphetamine can be understood. See United States v.

Ammar, 714 F.2d 238, 261-64 (3d Cir.) (pre-Guidelines case

discussing chemical difference between D- and L-heroin), cert.

denied sub nom. Stillman v. United States, 464 U.S. 936 (1983).

The methamphetamine molecule, like most organic

molecules, exists in different "isomeric" forms. Isomers "are

compounds that have the same molecular formula but different

structural formulas." Harold Hart, Organic Chemistry: A Short

Course 15 (6th ed. 1983) ("Organic Chemistry Text"). Just as

people are either right- or left-hand dominant, a molecule can

sometimes exist in right- and left-handed forms. See Organic
Chemistry Text at 125-26; Roger A. Hegstrom & Dilip K. Kondepudi,

The Handedness of the Universe, Scientific American, Jan. 1990,
at 108 ("Hegstrom & Kondepudi Article"); United States v.

Patrick, 983 F.2d 206, 209 (11th Cir. 1993). A molecule "that

exhibits the property of handedness" is called a chiral

molecule.7 The two forms of the chiral molecules are called

enantiomers.8

Each enantiomer is labelled either Dextro or Levo, or D

or L. Hegstrom & Kondepudi Article at 109. The difference is

determined by the optical rotation of light. D is right-handed

and L is left-handed. One is the mirror image of the other; that

is, they are mirror symmetrical. Id. Although enantiomers only

differ with respect to chirality, the human body "is highly

sensitive to enantiomeric differences." Id. For example, the

thalidomide birth defects of the 1960's resulted because one

enantiomer of thalidomide stopped morning sickness while the

other caused birth defects. Id. at 109-10.9

7
. Chirality was discovered in 1847 by Louis Pasteur. See
Hegstrom & Kondepudi Article at 108; Organic Chemistry Text at
127.
8
. Thus, enantiomers are isomers that are not identical with
their mirror image; that is, the enantiomers are
nonsuperimposable. Organic Chemistry Text at 121-25. For
example, the mirror image of a right hand is not another right
hand but a left hand. Id.
9
. Not all enantiomers have such disparate effects on the human
body. See, e.g., New Jersey v. Cathcart, 589 A.2d 193, 198 (N.J.
App. Div. 1991) (discussing the similar effects of D- and L-
cocaine); United States v. Puglisi, 790 F.2d 240, 242 (2d Cir.)
(same), cert. denied, 479 U.S. 827 (1986); United States v.
Bockius, 564 F.2d 1193, 1195 (5th Cir. 1977) (same); United
States v. Orzechowski, 547 F.2d. 978, 985 (7th Cir. 1976) (same),
cert. denied, 431 U.S. 906 (1977).
 Methamphetamine exists in these two isomeric forms.10

L-methamphetamine is a compound that produces little or no

physiological effect when ingested. Carroll, 6 F.3d at 743.

D-methamphetamine, on the other hand, produces the physiological

effect desired by its users. Id.

The text of U.S.S.G. § 2D1.1 differentiates only

between methamphetamine and methamphetamine (actual). We have

previously discussed that distinction as it involves drug purity,

not organic structure. The question now posed is whether the

isometric structure of methamphetamine, as well as the net

quantity of methamphetamine hydrochloride, is relevant to

Guidelines sentencing. The Guidelines do not differentiate

between the D- and L- isomers of methamphetamine in the text of

section 2D1.1, but only in the commentary to it. There, in the

Drug Equivalency Tables, L-methamphetamine is treated far less

severely than either methamphetamine or methamphetamine (actual):

methamphetamine (actual) by a factor of 250, methamphetamine by a

factor of 25. See U.S.S.G. § 2D1.1 comment.(n.10) (Drug

Equivalency Table) (one gram of L-methamphetamine is equivalent

to 40 grams of marijuana, one gram of methamphetamine is

equivalent to one kilogram of marijuana, and one kilogram of

10
. The Eleventh Circuit, in United States v. Carroll, 6 F.3d
735, 743 (11th Cir. 1993), described a third form of
methamphetamine: DL-methamphetamine. Standard texts, however,
seem to recognize only two chemical forms of methamphetamine with
DL-methamphetamine merely being a combination of the two forms.
See Organic Chemistry Text at 127 (defining a racemic mixture as
"a 50:50 mixture of enantiomers"). Our analysis would be
unaffected if a third form does exist.
methamphetamine (actual) is equivalent to 10 kilograms of

marijuana).11 With this chemical background in mind, we consider

first whether the issue raised by this distinction in their

physiological effect was fairly raised before the district court.

Bogusz and O'Rourke never used precise chemical terms in arguing

this question. They lumped this issue together with their

arguments on purity when they objected to sentencing based upon

an unanalyzed substance. Nevertheless, we conclude that Bogusz's

and O'Rourke's objections to sentencing based on the unanalyzed

substance produced at the methamphetamine laboratory fairly

raised and preserved the issue for appeal.

Even if Bogusz and O'Rourke were raising the issue for

the first time on appeal, we could nevertheless review the trial

court's findings for plain error. See Fed. R. Crim. P. 52(b)

("Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the

court."). We believe that under these circumstances the district

court's interpretation of the Guidelines would be plain error.

Because of the objections at sentencing, this case differs

factually from United States v. Peninno, 29 F.3d 572, 580 (11th
Cir. 1994), in which the United States Court of Appeals for the

Eleventh Circuit refused to consider a similar claim because of

11
. The Drug Equivalency Tables are generally used only when a
controlled substance is not listed in the Drug Quantity Table,
U.S.S.G. § 2D1.1(c), or when it is necessary to combine different
controlled substances. See U.S.S.G. § 2D1.1, comment.(n.10); cf.
Ammar, 714 F.2d at 263 (upholding heroin conspiracy conviction
without distinguishing between D- and L- isomers because statute
did not distinguish them).
the appellant's complete failure to object at sentencing.

Moreover, considering the gross disparity in sentencing, we

disagree with the Peninno court's holding that the determination

of methamphetamine type is entirely a factual question that

cannot rise to the level of plain error. Id.

The Fifth Circuit recently defined a plain error as one

"so obvious that [a] failure to notice it would seriously affect

the fairness, integrity, or public reputation of the judicial

proceeding and result in a miscarriage of justice." United

States v. Hoster, 988 F.2d 1374, 1380 (5th Cir. 1993) (quoting

United States v. Surasky, 974 F.2d 19, 21 (5th Cir. 1992), cert.

denied, 113 S. Ct 1948 (1993)); see also United States v. Olano,

113 S. Ct. 1770, 1776 (1993). We recognize that the term "plain

error" normally implies an error that is apparent as well as

unjust. See United States v. Atkinson, 297 U.S. 157, 160

(1936).12 Here, however, we think that the egregiousness of the

12
. Rule 56 is sometimes said to require a plain error to be an
obvious error. See United States v. Blythe, 944 F.2d 356, 359
(7th Cir. 1991) (relying exclusively on Justice Scalia's
dissenting opinion in Pretez v. United States, 111 S. Ct. 2661,
2678 (1991)). The Supreme Court, however, has defined plain
errors as errors that "are obvious, or [that] otherwise seriously
affect the fairness, integrity or public reputation of the
judicial proceedings." Atkinson, 297 U.S. at 160. In United
States v. Olano, 113 S. Ct. 1770 (1993), the Supreme Court,
discussing Rule 52(b), stated that appellate review is available
only when: (1) there is an error; (2) the error is "plain;" and
(3) the error affects substantial rights. Id. at 1776-77.
"Plain is synonymous with clear or, equivalently, obvious. . . .
At a minimum, the Court of Appeals cannot correct an error
pursuant to Rule 52(b) unless the error is clear under current
law." Id. at 1777 (internal citations and quotations omitted).
Though the present error was not obvious, we think it was clear;
thus, even if Bogusz's and O'Rourke's failure to appreciate the
technical chemical basis for their objection was a waiver, we
injustice that would result if the distinction between the two

isomers is not recognized outweighs the failure of Bogusz and

O'Rourke to articulate clearly the principles of organic

chemistry that underlie their objections to the district court's

application of the Guidelines.13

Thus, considering the magnitude of the difference in

sentencing that could result from the application of the wrong

organic isomer, we think the sentencing court's failure to make

this determination would result in a grave miscarriage of

justice.14 We will thus consider whether the distinction between

(..continued)
think the requirements of Rule 52(b) would be met because of the
great difference in the effect of the two substances that the
commentary to U.S.S.G. § 2D1.1(c) recognizes when it
distinguishes them by a conversion factor of 250 to 1.
13
. Moreover, a sentencing scheme that imposes the same penalty
on a person who produces a compound with little or no effect as a
person who produces a potent mind-altering drug would seem
irrational. When interpreting the Guidelines, we apply
traditional canons of statutory construction. Thus, we will not
interpret the Guidelines in a manner that leads to irrational
results when alternative interpretations consistent with the
objectives of the Sentencing Reform Act are available. See,
e.g., Griffin v. Oceanic Contractors Inc., 458 U.S. 564, 575
(1982). The Sentencing Reform Act intended to create "an
effective, fair sentencing system." U.S.S.G. Ch. 1, Pt. A intro.
comment. "To achieve this end, . . . Congress sought
proportionality in sentencing through a system that imposes
appropriately different sentences for criminal conduct of
differing severity." Id.
14
. Because the Guidelines' confusing textual use of the term
"actual" and its unexplained distinction between the two isomers
in the commentary's reference to the equivalency table, we cannot
criticize the district court for failing to appreciate this
problem. Some commentators suggest that lawyers generally
possess "an appalling degree of scientific illiteracy, which ill
equips them to educate and guide the bench." Andre A. Moenssens
et al., Scientific Evidence in Criminal Cases 7 (3d ed. 1986)
the left- and right-handed isomers of methamphetamine is material

to the Guidelines sentences that can be legally imposed on Bogusz

and O'Rourke.

In United States v. Carroll, 6 F.3d 735 (11th Cir.

1993), the Court of Appeals for the Eleventh Circuit sought to

separate methamphetamine's purity from the effect of its isomers.

In that case, the defendant's sentence was based on

methamphetamine that contained 50% D- and 50% L-methamphetamine.

Id. at 743. The Court of Appeals held, "the distinction between

methamphetamine and [methamphetamine (actual)] refers to the

relative purity of any methamphetamine compound; it does not

refer to a particular form of methamphetamine." Id. at 744.

Thus, the 50% D- and 50% L-methamphetamine compound could be 100%

pure for purposes of calculating methamphetamine (actual). Judge

Bright dissented from the majority's "drug quality issue." Id.

at 747. Because the Guidelines "caused great confusion due to

the convoluted chemical rhetoric" required by their application

in this area, Judge Bright would have affirmed the lower court's

conclusion that purity should be based on the quantity of

D-methamphetamine. Id. at 749.15
An isolated literal reading of U.S.S.G. § 2D1.1(c) does

offer some support to the Carroll majority's separation of the

(..continued)
(discussing the difficulties experienced by judges in determining
the admissibility of expert evidence).
15
. Judge Bright lamented the complexity and confusion apparent
in the Guidelines' treatment of methamphetamine. Carroll, 6 F.3d
at 749 (Bright, J., dissenting). We add our voice to his lament.
purity problem from the difference in the effect of the two

isomers. We think, however, that such a separation for purposes

of Guidelines' sentences would obliterate the distinction between

the effect of the two isomers that the Guidelines' commentary

recognizes in any case in which the Drug Equivalency Tables are

not used. Considering the difference between the physiological

effect of the two isomers, along with the Sentencing Commission's

recognition of that difference in its use of conversion factors

with a 1 to 250 ratio, the disparity in sentencing that would

result seems to us contrary to one of Congress's primary goals in

passing the Sentencing Reform Act--the substitution of uniformity

for disparity in sentencing.16 We think the Guidelines should

not be construed in a way that results in so greatly irrational a

disparity. To illustrate, under Carroll, a defendant convicted

of one gram of pure L-methamphetamine would have a base offense

level of 16 with a Guidelines range of 21 to 27 months

imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table)

(assuming a criminal history category of I). Another defendant

sentenced for one gram of pure L-methamphetamine and an

additional 200 grams of marijuana (thus, requiring conversion

under the Drug Equivalency Table) would have a base offense level

of 6 and a sentencing range of zero to six months. See U.S.S.G.

16
. The Sentencing Reform Act of 1984 sought to achieve
"reasonable uniformity in sentencing by narrowing the wide
disparity in sentences imposed for similar criminal offenses
committed by similar offenders." U.S.S.G. Ch. 1, Pt. A, intro.
comment.
Ch. 5, Pt. A (Sentencing Table) (again, assuming a criminal

history category of I).

Accordingly, we hold that the references to

methamphetamine and methamphetamine (actual) in the Drug Quantity

Tables of U.S.S.G. § 2D1.1(c) refer solely to quantities of

D-methamphetamine. In order to calculate a base offense level

under section 2D1.1(c) for L-methamphetamine, the substance in

question must first be converted into marijuana equivalents. See

U.S.S.G. § 2D1.1, comment.(n.10) (noting that the Drug Quantity

Tables do not include all substances and that the Drug

Equivalency Tables should be used for those that are not

included).

Because no determination of the isomeric composition of

methamphetamine was made at sentencing, this issue must also be

considered on remand. We again remind the government that it has

the burden of production and persuasion on this issue and that

the proper standard for the burden of persuasion is a

preponderance of the evidence. The type of proof required to

satisfy this standard will also vary from case to case.17 In

17
. See United States v. Lande, No. 94-8038, 1994 WL 627425, at
*1-2 (10th Cir. Nov. 9, 1994) (affirming a district court's
finding of D-methamphetamine based upon circumstantial evidence);
United States v. Wessels, 12 F.3d 746, 754 (8th Cir. 1993)
(reversing a district court for taking judicial notice that
methamphetamine was D-methamphetamine), cert. denied, 115 S. Ct.
105 (1994); Patrick, 983 F.2d at 210 (requiring the government to
prove that conviction was based upon D-methamphetamine). We do
not think that this standard will create either an insurmountable
burden or a meaningless hurdle for the government but, rather,
merely recognizes the distinctions between the organic
compositions and purity levels of methamphetamine the Guidelines
require. We think some evidence of the quantity of each isomer
some cases, the evidence will include a chemical analysis or

expert testimony. In others, circumstantial evidence of which

isomer is present may be sufficient to meet the preponderance of

the evidence standard. See United States v. Koonce, 884 F.2d

349, 352-53 (8th Cir. 1989) (affirming D-methamphetamine

determination based on circumstantial evidence of defendant's

prior methamphetamine shipment).

B. Section 2D1.11's Cross Reference to 2D1.1

Bogusz alone raises the next Guidelines issue. He

argues that the district court erred in applying U.S.S.G. § 2D1.1

under section 2D1.11's cross-reference to it. He contends that

section 2D1.1 does not apply to violations of 21 U.S.C.A.

§ 841(d). Bogusz pled guilty to distribution of a precursor

chemical knowing that it would be used to manufacture a

controlled substance but was sentenced for conspiracy to

unlawfully manufacture the quantity of the controlled substance

that was produced from the precursor chemicals he delivered.

(..continued)
is needed because Congress and the Sentencing Commission deemed
methamphetamine different enough to warrant this unique
sentencing scheme. The inapplicability of the prohibition
against hearsay to sentencing proceedings, see United States v.
Sciarrino, 884 F.2d 95, 96 (3d Cir.), cert. denied, 493 U.S. 997
(1989), should facilitate the production of evidence in the form
of expert opinion. Moreover, we do not think precise
quantitative analysis of the product should be required, only
some reasonable estimate of the relative amounts of each isomer,
perhaps inferred from the production method and results generally
obtained in laboratory experiments using normal production
methods.
 Bogusz relies primarily on United States v. Voss, 956

F.2d 1007 (10th Cir. 1992), a case decided under the Guidelines

in effect before the amendment adopting section 2D1.11. In Voss,

over a strong dissent by Judge Ebel, the court held U.S.S.G.

§ 2D1.1 inapplicable to violations of 21 U.S.C.A. § 841(d). Id.

at 1012. The majority reasoned that its application "would

insure that almost all violators of section 841(d) would be

sentenced to the ten year maximum imprisonment, thus turning a

statutory maximum into a mandatory sentence." Id. at 1010

(citations omitted). The majority refused to interpret the

Guidelines in a manner that would achieve this result, fearing

that such an interpretation "would effectively nullify the

various sections of the Guidelines geared to a particular

defendant's offense specific conduct." Id.

Since Voss, the Guidelines have been amended and

section 2D1.11 now clearly applies to violations of section 21

U.S.C.A. § 841(d). See U.S.S.G. § 2D1.11 (Unlawfully

Distributing, Importing, Exporting or Possessing a Listed

Chemical; Attempt or Conspiracy). We sympathize with the concern

the Voss majority expressed,18 but we cannot reconcile it with
18
. The Voss majority also expressed concern over treating
section 841(d) violators the same as actual drug manufacturers.
The Guidelines, as amended since Voss, cross reference to section
2D1.1 only when the "offense involved unlawfully manufacturing or
attempting to manufacture a controlled substance . . . ."
U.S.S.G. § 2D1.11(c)(1). Section 841(d) can be violated by
conduct not meeting this requirement. Therefore, we do not
believe that the Sentencing Commission acted irrationally by
equating the penalties for these offenses. In fact, the theory
behind all inchoate penalties is based on some belief in
equivalent culpability.
the text of the amended Guidelines. See United States v.

O'Leary, 35 F.3d 153, 154 (5th Cir. 1994). Section 2D1.11(c)(1)

states: "If the offense involved unlawfully manufacturing a

controlled substance, or attempting to manufacture a controlled

substance unlawfully, apply § 2D1.1 (Unlawful Manufacturing,

Importing, Exporting, Trafficking) if the resulting offense level

is greater than that determined above." U.S.S.G. § 2D1.11(c)(1).

The Guidelines explain that section 2D1.11(c)(1) applies when

"the defendant, or a person for whose conduct the defendant is

accountable under § 1B1.3 (Relevant Conduct), completed the

actions sufficient to constitute the offense of unlawfully

manufacturing a controlled substance or attempting to manufacture

a controlled substance unlawfully." Id. § 2D1.11, comment.(n.2).

The relevant conduct referred to in section 1B1.3 includes "all

acts . . . committed, aided, abetted, counselled, commanded,

induced, procured, or willfully caused by the defendant; and in

the case of a jointly undertaken criminal activity . . . all

reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity." Id.

§ 1B1.3(a)(1)(A & B).

Unless there is a showing of contrary intent, we must

"follow the clear unambiguous language of the Guidelines."

United States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993).
Therefore, we apply the Guidelines as they were written, not as

we think they should have been written. Id. The district court

had before it sufficient evidence to determine that Bogusz's

conduct satisfied the requirements of U.S.S.G. § 2D1.11(c)(1).
Accordingly, we hold that the district court did not err in its

reliance on section 2D1.1 by cross-reference from section 2D1.11.

However, the use of section 2D1.11 requires us to

consider a constitutional issue. If the Voss majority's

interpretation of the pre-1991 Guidelines was correct, Bogusz's

sentence would conflict with the Ex Post Facto Clause. U.S.

Const. art. I, § 9, cl. 3. The prohibition against the passage

of ex post facto laws includes, inter alia, "[e]very law that

changes the punishment and inflicts a greater punishment than it

was when committed." Calder v. Bull, 3 Dall. 386, 390 (1798).

In Miller v. Florida, 482 U.S. 423 (1987), the Supreme Court, in

striking down the use of a state sentencing guideline, held that

an application of a sentencing provision to conduct occurring

before its passage or promulgation violates the Ex Post Facto

Clause whenever "the law [is] retrospective, that is, it . . .

appl[ies] to events occurring before its enactment, and . . . it

. . . disadvantage[s] the offender affected by it." Id. at 430

(internal quotations and citations omitted).

Bogusz was sentenced under the 1991 Guidelines for

conduct that occurred from early April to early May 1990. The

1991 Guidelines became effective November 1, 1991. Therefore, if

the 1990 Guidelines would have resulted in a lower sentence, the

Ex Post Facto Clause would require its application. See United
States v. Spiropoulos, 976 F.2d 155, 160 n.3 (3d Cir. 1992)

("district courts are required to apply the time-of-offense

[G]uidelines rather than the time-of-sentence [G]uidelines when

. . . the time-of-offense [G]uidelines are more favorable to the
defendant"). Thus, if the Voss interpretation of the earlier

Guidelines were correct, Bogusz could have received a less severe

sentence under the pre-1991 revision of the Guidelines. See

Voss, 956 F.2d at 1013 (district court should base sentencing on

the purposes of 18 U.S.C.A. § 3553(b) (1988) without regard to

the Guidelines' sentencing table).

The Ex Post Facto Clause requires us to interpret the

pre-1991 Guidelines and meet the question posed by Voss, one this

Court has not previously decided under the pre-1991 Guidelines.

After thorough consideration, we find ourselves in agreement with

those courts that have rejected the view of the Voss majority.19

Following Judge Ebel's reasoning in dissent, we hold that, under

the pre-1991 Guidelines, violators of 21 U.S.C.A. § 841(d) could

properly be sentenced under U.S.S.G. § 2D1.1. Accordingly, we

conclude that application of the 1991 Guidelines did not

disadvantage Bogusz and thus no constitutional infirmity exists

under the Ex Post Facto Clause.

C. Bogusz's Plea Bargain

19
. See United States v. Leed, 981 F.2d 202, 207 (5th Cir.),
cert. denied, 113 S. Ct. 2971 (1993); United States v. Cook, 938
F.2d 149 (9th Cir. 1991); United States v. Kingston, 922 F.2d
1234 (6th Cir. 1990), cert. denied, 500 U.S. 933 (1991); see also
United States v. Perrone, 936 F.2d 1403, 1416-17 (2d Cir. 1991)
(allowing application of U.S.S.G. § 2D1.1 for 21 U.S.C.A.
violations only when the defendant knew or could reasonably
foresee the manufacturing quantity on which sentencing is based).
But see United States v. Hyde, 977 F.2d 1436, 1441 (11th Cir.
1992), cert. denied, 113 S. Ct. 1948 (1993).
 Finally, Bogusz argues that the government violated the

terms of his plea bargain by arguing for affirmance of the

district court's sentence in this appeal.20

In the plea bargain agreement between Bogusz and the

government, the parties stipulated that the base offense level

would be 24 under U.S.S.G. § 2D1.11(d)(3). The probation office,

in Bogusz's PSR, considered and rejected application of section

2D1.11(d)(3) and instead recommended application of section

2D1.11(c)(1) which, by cross-reference, requires the application

of section 2D1.1. The district court's decision to accept the

PSR recommendation raised Bogusz's base offense level to 34.

Bogusz does not appeal the district court's refusal to honor the

stipulation, however. See United States v. Torres, 926 F.2d 321

(3d Cir. 1991) (allowing the sentencing judge to consider

evidence outside the stipulation but requiring an opportunity for

plea withdrawal); United States v. Wagner, 994 F.2d 1467, 1475

(10th Cir. 1993) ("It is well settled the terms of a plea

agreement are not binding on the sentencing court.").

In Santobello v. New York, 404 U.S. 257 (1971), the

Supreme Court held that plea bargains are governed by the law of

contracts and, therefore, the parties' must strictly adhere to

20
. The government argues that Bogusz raised this issue for the
first time in his reply brief. In response, the government filed
a motion to strike this argument or, in the alternative, for
leave to file a surreply brief. We denied these motions. We do
not usually consider questions first raised in this manner.
Here, however, the issue Bogusz raises became apparent only after
the government filed its brief. Accordingly, Bogusz had no
opportunity to raise it before he filed his reply brief.
their promises. United States v. Badaracco, 954 F.2d 928, 939

(3d Cir. 1992); United States v. Hayes, 946 F.2d 230, 233 (3d

Cir. 1991). Courts use a three-step analysis to review plea

bargains: first, they determine the agreement's terms and the

conduct alleged to violate it; second, they determine if the

conduct violated the plea agreement; and third, if the plea

agreement is violated, they determine the remedy. Hayes, 946

F.2d at 233 (quoting United States v. Moscahlaidis, 868 F.2d

1357, 1360 (3d Cir. 1989)). Here, the terms of the plea bargain

are clear. Therefore, we focus on the second step. Determining

whether the government's conduct violated the plea agreement is a

question of law over which we have plenary review. Id.

The stipulations attached to the plea bargain between

Bogusz and the government state that "the applicable federal

sentencing guideline is section 2D1.11(3) carrying a base offense

level of 24." The government argues that the district court was

correct in sentencing Bogusz based on methamphetamine (actual) as

opposed to methamphetamine. Brief of Appellee at 41-49. Bogusz

claims that the government's presentation of this argument

violates the plea agreement.

Bogusz's plea agreement did not explicitly address the

post-conviction conduct of either party. See, e.g., United
States v. Gonzalez, 981 F.2d 1037 (9th Cir. 1992) (plea agreement

with a no-appeal clause). Nevertheless, because "the government

cannot resort to a rigidly literal approach in the construction

of language," we are not limited to the express language of the

agreement. Badaracco, 954 F.2d at 939 (quoting United States v.
Crusco, 536 F.2d 21 (3d Cir. 1976)). Rather, "[i]n determining

whether the terms of a plea agreement have been violated, the

court must determine whether the government's conduct is

inconsistent with what was reasonably understood by the defendant

when entering the plea of guilty." Id. (quoting United States v.

Nelson, 837 F.2d 1519, 1521-22 (11th Cir.), cert. denied sub nom.

Waldhart v. United States, 488 U.S. 829 (1988)).

A reasonable person in Bogusz's position may have

understood the stipulation to include an agreement not to argue

against the stipulation on appeal. Cf. Moore v. Foti, 546 F.2d

67, 68 (5th Cir. 1977) (defendants "successful challenge to his

plea bargained sentence is a tacit repudiation of the bargain").

Bogusz, however, did not appeal the district court's refusal to

follow the stipulation.

Moreover, the government does not directly argue

against the stipulation; instead, it contends only that the

district court's definition of methamphetamine (actual) is

correct. This issue is separate and distinct from the

stipulation. Similarly, Bogusz has not breached his plea

agreement by arguing directly for his own interpretation of

methamphetamine after he had stipulated to an unrelated

Guidelines' provision. Our adversarial system of justice relies

heavily on the presentation of opposing views by both parties, on

appeal as well as at trial. Thus, we are reluctant to deny any

party the right to advance its interpretation of law. Under the

circumstances before us, we hold that the government did not
violate the letter or the spirit of the plea agreement by its

arguments on this appeal.

IV. Conclusion

For the reasons discussed above, the sentences imposed

on Bogusz and O'Rourke will be vacated and their cases remanded

for resentencing in a manner consistent with this opinion. In

all other respects, the orders of the district court are

affirmed.
U.S. v. Bogusz and O'Rourke, Nos. 92-5575 and 92-5595

NYGAARD, Circuit Judge, concurring and dissenting.

I join in all parts of the majority's opinion except

for part III(A)(1). Because I believe the majority has adopted

the wrong test for determining the purity of methamphetamine, I

respectfully dissent from that portion of its opinion.

As the majority recognizes, the Sentencing Guidelines

provide two ways for sentencing a defendant convicted of

unlawfully manufacturing methamphetamine. Under U.S.S.G. §

2D1.1(c) cmt. * (1991), the court first looks to the "the entire

weight of any mixture or substance containing a detectable amount

of the controlled substance." Next, the court is instructed to

determine the weight of the pure form of the controlled substance

contained within the mixture, otherwise known as "methamphetamine

(actual)." These weights are then translated into offense levels

by use of the Drug Quantity Table, and the higher of the two

offense levels is used in determining the appropriate sentence.

The issue here is how much methamphetamine (actual) was

contained in the substance manufactured by the defendants.

Appellants contend that methamphetamine (actual) means only the

amount of pure methamphetamine, free of all impurities, while the

government argues that any uncut substance containing

methamphetamine is methamphetamine (actual), regardless of its

purity. The majority, while acknowledging that both views are

supported in the caselaw, concludes that "methamphetamine

(actual) refers to the net amount of methamphetamine
hydrochloride produced and not the gross amount of uncut

methamphetamine." Majority transcript at 12.

I disagree with this conclusion. Precursor chemicals

used in the manufacture of methamphetamine cost money and may be

difficult to obtain. Consequently, it is counterintuitive to

conclude that every rational "cook" would not seek the highest

possible yield of methamphetamine hydrochloride from those

chemicals. The mere fact that the cook bungles the recipe and

produces a sticky, caramel-like substance of low purity, which no

user wishes to purchase, should not diminish punishment vis-a-vis

the "good" cook whose product is more pure and highly salable.

Moreover, the majority's holding also places an

unwarranted burden upon the government to obtain an enhanced

sentence based on the amount of methamphetamine (actual). Under

the majority's rule, the government must now have every sample of

methamphetamine analyzed and its purity determined; the mere fact

that the drug is uncut is no longer sufficient. First, we must

recognize that criminal defendants who operate "meth cooks" in

garages, barns and, as here, basements, are not scientists who

sit around discussing the molecular structure of their creations.

Bogusz was a mechanic who got the phenylacetic acid for the

"cook" and O'Rourke was a truck driver who cleaned out the drains

at the "cook." Second, "meth" is not produced under laboratory

conditions and is almost never pure. Third, in cases like this

one, where the specific batch of drugs at issue is never
recovered and tested, the defendant will avoid an enhanced

sentence altogether, even when it is undisputed that the drugs

were uncut.

I would simply avoid these problems altogether and hold

that methamphetamine (actual) refers to the uncut output of the

manufacturing process, regardless of its purity. See United

States v. Macklin, 927 F.2d 1272, 1283 (2d Cir.), cert. denied,

112 S. Ct. 146 (1991). I therefore respectfully dissent.