United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit January 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-50312
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DANIEL VERNON HARDIN, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, DeMOSS, and OWEN, Circuit Judges.
DeMOSS, Circuit Judge:
We recall the mandate, withdraw the opinion filed on December
29, 2005, and substitute the following:
Daniel Vernon Hardin, Jr. pleaded guilty to a one-count
indictment for the attempt to manufacture an unspecified amount of
methamphetamine and appeals his sentence on the grounds that the
district court erred: (1) in denying Hardin’s request for
appointment, under the Criminal Justice Act (the “CJA”), 18 U.S.C.
§ 3006A(e), of an expert to testify at sentencing, and (2) in
including “bones,” a byproduct of methamphetamine production, in
the drug quantity attributable to Hardin. We vacate the sentence
and remand with instructions for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Hardin was indicted on April 13, 2004 on a single charge of
the knowing and intentional attempt to manufacture methamphetamine,
a Schedule II controlled substance, in violation of 21 U.S.C. §§
841(a)(1) and 846. The indictment did not allege a quantity of
drugs attributable to Hardin. Based upon a finding of Hardin’s
indigence, defense counsel was appointed for Hardin under the CJA.
Hardin pleaded guilty on July 15, 2004.
The Government filed a factual basis for the guilty plea. The
factual basis did not proffer a drug quantity but did set forth the
Government’s ability to prove the elements of the offense in the
event the case had proceeded to trial. In that event, the
Government would have shown that law enforcement discovered Hardin,
who was wanted for a parole violation on a drug possession charge,
near a river in proximity to items believed to be connected to the
production of methamphetamine. Law enforcement believed that
Hardin and another individual were involved in methamphetamine
production, and law enforcement found cans and plastic containers
filled with clear liquid that smelled of ether and other materials
used in methamphetamine production. The containers were discovered
in Hardin’s vehicle and in the surrounding area. The factual basis
also described Hardin’s statement, provided after Hardin received
warnings as required by Miranda v. Arizona, 384 U.S. 436 (1966), in
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which Hardin admitted his use of methamphetamine on the scene and
admitted to stealing methamphetamine from the “cook,” the process
by which methamphetamine is produced.
When Hardin pleaded guilty, he stated he had no disagreement
with the factual basis as submitted by the Government. But Hardin
did not admit, at any point in the proceedings, the quantity of
methamphetamine attributable to him in connection with his plea to
the indictment.
Hardin moved under the CJA for the appointment of Mr. Max
Courtney, a chemical expert and lab director, as an expert. See 18
U.S.C. § 3006A(e). In his motion, Hardin argued the majority of
the quantity of methamphetamine attributed to him was bones, a
byproduct that could not, according to Hardin, be included in the
calculation of the drug quantity under the guidelines. Hardin
proffered Mr. Courtney’s testimony. He stated that Mr. Courtney
would testify that bones are a toxic precipitate of methamphetamine
production and do not qualify as a mixture or substance containing
methamphetamine for purposes of U.S.S.G. § 2D1.1.1 Under the 1993
1
“Unless otherwise specified, the weight of a controlled
substance set forth in the table refers to the entire weight of
any mixture or substance containing a detectable amount of the
controlled substance.” U.S.S.G. § 2D1.1, note (A) (2003). The
comments to § 2D1.1 provide, in relevant part,
“Mixture or substance” as used in this guideline has
the same meaning as in 21 U.S.C. § 841, except as
expressly provided. Mixture or substance does not
include materials that must be separated from the
controlled substance before the controlled substance
can be used. Examples of such materials include the
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amendment to U.S.S.G. § 2D1.1, a material “that must be separated
from the controlled substance before the controlled substance can
be used” does not qualify as a mixture or substance under the
guideline. See U.S.S.G. § 2D1.1., cmt. n.1. Hardin argued that
bones are such a material, toxic and unusable with methamphetamine.
Although the Government argued a mixture of bones and
methamphetamine should be included in the § 2D1.1 calculation,
Hardin countered that the amended guidelines did not support so
including bones. Hardin identified an apparent conflict between a
non-precedential decision of the Fifth Circuit, United States v.
Tubbs, 96 Fed. Appx. 257 (5th Cir. 2004) (unpublished), and a
decision of the Seventh Circuit, United States v. Stewart, 361 F.3d
373 (7th Cir. 2004). Based upon his interpretation of the amended
guidelines and what he identified as a circuit conflict on the
method of calculating the quantity of methamphetamine, Hardin
argued for the expert’s appointment: (1) to retest the material in
question to determine whether it contained an unuseable material;
(2) to testify to counter the government’s arguments about the
fiberglass in a cocaine/fiberglass bonded suitcase,
beeswax in a cocaine/beeswax statue, and waste water
from an illicit laboratory used to manufacture a
controlled substance. If such material cannot readily
be separated from the mixture or substance that
appropriately is counted in the Drug Quantity Table,
the court may use any reasonable method to approximate
the weight of the mixture or substance to be counted.
Id. at cmt. n.1.
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nature of bones; (3) to advise defense counsel about cross-
examination of the government’s witness regarding the nature of
bones; and (4) to testify about methamphetamine production and the
resulting separable waste, i.e., bones.
The district court did not conduct a hearing on Hardin’s §
3006A(e) motion for appointment of an expert. The court denied the
motion on August 25, 2004, providing no reasons for the
disposition.2
Hardin also submitted written objections to the presentencing
report (“PSR”), which recommended a base offense level of 26
because at least 50 grams but less than 200 grams of
methamphetamine were involved in the offense.3 Hardin’s total
offense level was 25, and in combination with a criminal history
category V, the applicable guideline range was 100 to 125 months.
Hardin objected, in part, that the quantity of methamphetamine
attributed to him was too high because it included 171.51 grams of
bones, an unusable byproduct of methamphetamine production. Hardin
2
At oral argument on appeal, counsel for the government
suggested that the district court relied, in part, on its
familiarity with the testimony of the expert to be appointed here
based upon a prior case before the same district court and on its
familiarity with the nature of methamphetamine and bones based
upon the court’s docket. However, the record on appeal does not
demonstrate conclusively whether this suggestion is correct
because the district court gives no reason for its denial of
Hardin’s application for expert appointment.
3
Two levels were added because the offense involved the
discharge of a hazardous substance, and three levels were
subtracted for acceptance of responsibility.
5
also objected to the application of the guidelines as ultra vires
the Sixth Amendment under Blakely v. Washington, 542 U.S. 296
(2004).4
On February 9, 2005, the sentencing proceedings were held
after the Supreme Court announced its opinion in United States v.
Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). In
overruling Hardin’s objection to the inclusion of bones in the drug
quantity calculation, the court stated, “[t]he writers of the
guidelines have provided that a material or substance containing a
detectable amount of controlled substance should be counted and
that has been ruled to be the law by the Fifth Circuit.” With this
ruling, the district court concluded the applicable guideline range
was 100 to 125 months’ imprisonment.
The district court subsequently sentenced Hardin, under the
advisory sentencing scheme applicable after Booker, to 72 months’
imprisonment, 3 years’ supervised release, a fine of $1000, and a
$100 special assessment. The district court gave no reason for its
departure from the guideline range, other than the advisory nature
of the guidelines, despite this Court’s directive that a sentence
outside of the applicable guideline range requires an articulation
of the reasons supporting the departure. See United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005).
4
Hardin’s other objections are not relevant to the
disposition of his instant appeal.
6
DISCUSSION
Hardin timely appeals, arguing the district court erred in
denying his CJA motion in the absence of a hearing and improperly
including bones in the drug quantity calculation under U.S.S.G. §
2D1.1.
I.
First, we must address the applicable standard of review.
Hardin argues that our review is de novo, pointing to language from
Unites States v. Patterson, 724 F.2d 1128, 1130 (5th Cir. 1984)
(stating “where the government's case rests heavily on a theory
most competently addressed by expert testimony, an indigent
defendant must be afforded the opportunity to prepare and present
his defense to such a theory with the assistance of his own expert
pursuant to section 3006A(e)”). In Patterson, the panel addressed
a question of law: the meaning of “pivotal evidence” under our
Circuit’s prior caselaw. Id. (citing United States v. Theriault,
440 F.2d 713 (5th Cir. 1971)). Such a question of law required de
novo review. Id.
But here we do not address the meaning of a term used in the
Court’s caselaw treatment of the CJA statute. Instead, we address
Hardin’s challenge to the district court’s denial of his CJA motion
for expert appointment. We have previously stated that review of
the district court’s denial of such a motion is review for abuse of
discretion. United States v. Castro, 15 F.3d 417, 421 (5th Cir.
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1994) (finding no abuse of discretion in the denial of a motion
under the CJA for psychological examination); United States v.
Williams, 998 F.2d 258, 263 n.10 (5th Cir. 1993); United States v.
Walborn, 730 F.2d 192, 194 (5th Cir. 1984). This Circuit has also
spoken of the standard in terms of case-by-case review of the
record. “Usually the appellate court will be reviewing a trial
court denial of a § 3006A(e) motion in light of only the
information available to the trial court at the time it acted on
the motion.” Theriault, 440 F.2d at 715 (addressing the definition
of a “necessary service”). Such a statement is consistent with
review for abuse of discretion. We reject Hardin’s argument that
de novo review applies to the denial of a § 3006A(e) motion.
Here, as before, we review the district court’s denial of
Hardin’s motion for expert appointment under the CJA for abuse of
discretion. See Castro, 15 F.3d at 421; Williams, 998 F.2d at 263
n.10; Walborn, 730 F.2d at 194. In so doing, we conclude on this
record that the court abused its discretion in denying Hardin’s
request for expert appointment.
II.
The CJA provides the procedure both for an indigent defendant
to request expert appointment and for the district court to resolve
the motion.
Section 3006A(e) provides in relevant part,
Counsel for a person who is financially unable to obtain
. . . expert . . . services necessary for adequate
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representation may request them in an ex parte
application. Upon finding, after appropriate inquiry in
an ex parte proceeding, that the services are necessary
and that the person is financially unable to obtain them,
the court . . . shall authorize counsel to obtain the
services.
18 U.S.C. § 3006A(e)(1) (2000 & Supp. 2005).
It is undisputed that Hardin was indigent and that he moved
properly under § 3006A(e)(1) for expert appointment. Thus, the
district court should have granted the appointment “after
appropriate inquiry in an ex parte proceeding” if Hardin
demonstrated the expert was “necessary for an adequate
representation.” See id.; Williams, 998 F.2d at 263. District
courts must “grant the defendant the assistance of an independent
expert under § 3006A when necessary to respond to the government's
case against him, where the government's case ‘rests heavily on a
theory most competently addressed by expert testimony.’” Williams,
998 F.2d at 263 (quoting United States v. Patterson, 724 F.2d 1128,
1130 (5th Cir. 1984)).
The primary issue before the district court at sentencing,
raised by Hardin’s CJA motion and his objections to the PSR, was
the enhancement of his sentence on the basis of the inclusion of
bones in the attributable drug quantity.5 In 1993, the Guidelines
5
Hardin’s motion for expert appointment satisfied the
requirement that a defendant seeking appointment of an expert
under the CJA must “demonstrate with specificity” why the
services are necessary. See United States v. Gadison, 8 F.3d
186, 191 (5th Cir. 1993). Hardin’s sentence differs
substantially depending upon whether bones are included in the
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were amended to clarify that a “mixture or substance does not
include materials that must be separated from the controlled
substance before the controlled substance can be used.” U.S.S.G.
§ 2D1.1., cmt. n.1; United States v. Towe, 26 F.3d 614, 617 (5th
Cir. 1994). Since the 1993 amendment, this Circuit has not
resolved in a published opinion whether bones satisfy the
Guidelines’ definition of a mixture or substance, such that they
should be included in the calculation of methamphetamine quantity.
However, this Court has considered, in the wake of the 1993
Amendment, whether bones might be included under U.S.S.G. § 2D1.1
as a mixture or substance in an unpublished opinion, United States
v. Tubbs, 96 Fed. Appx. 257 (5th Cir. 2004) (per curiam)
(unpublished), vacated, 125 S. Ct. 1054 (2005), opinion on remand,
133 Fed. Appx. 957 (5th Cir.) (per curiam) (unpublished), cert.
denied, 126 S. Ct. 463 (2005). There, a panel of this Court
explained that “[b]ecause bones, a byproduct of the methamphetamine
manufacturing process, can be injected by users without separating
the methamphetamine, bones constitutes a mixture or substance
containing a detectable amount of methamphetamine for purposes of
the sentencing guidelines.” Id. at 257. The factual basis for
this statement was not provided. The substance referred to as
drug calculation as a mixture or substance under § 2D1.1.
Hardin’s guideline range was calculated using the amount of
methamphetamine found in five exhibits of mixtures, the content
of which is unclear from this record.
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“bones” in Tubbs may or may not be the same kind of substance for
which Hardin was held accountable in the present case. We simply
cannot determine from the record presently before us, nor from
Tubbs, what is the factual nature of the substance called bones.
In any event, the Tubbs opinion upon which the Government relied
was vacated by the Supreme Court and as such provides no guidance
to the disposition of the issues raised here.
Thus, Hardin’s objections raised prior to and at sentencing
presented a question of law that remains open in this Circuit. In
addition to the legal question of quantity calculation under §
2D1.1, Hardin also disputed, on this record, the factual issue
regarding the content and nature of bones, irrespective of the
application of the guidelines. The Government submits that any
error in the denial of the motion or in the sentencing was harmless
because Hardin did not challenge the total amount of bones as
incorrect. In so arguing, the Government relies on an unpublished
opinion from the Tenth Circuit. United States v. Greathouse, No.
99-3400, 2000 U.S. App. LEXIS 24489 (10th Cir. Sept. 29, 2000).
There, the defendant argued the court erred in calculating his base
offense level with mixture quantity rather than the lower quantity
of pure methamphetamine. Id. at *2. The Tenth Circuit concluded
that the use of the larger mixture quantity was appropriate because
the weight of the mixture was not in dispute, as the defendant had
failed to challenge the weight of the mixture. Id. at *7-*8. The
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court found no abuse of discretion where the defendant waived the
appointment of an expert by failing to make a timely request for an
ex parte hearing and instead requesting appointment in open court
at the time of sentencing. Id. at *10. Greathouse, of course, has
no precedential value as an unpublished opinion and more
importantly to this appeal, does not inform the question whether
the court erred in failing to give an ex parte hearing on this
record where Hardin moved, in a timely6 and specific manner, for
expert appointment on a disputed factual issue regarding the
primary issue to his sentence determination, that is, whether bones
are included under U.S.S.G. § 2D1.1.
Our holding in this case does not reach so broadly as to
require in all circumstances that a district court hold a hearing
on an ex parte application for appointment under § 3006A(e).
Neither the statute’s plain language nor our caselaw interpreting
it supports such a broad rule. See, e.g., Gadison, 8 F.3d at 191
(requiring a defendant “demonstrate with specificity” why the
requested services are necessary); United States v. Scott, 48 F.3d
1389, 1395-96 (5th Cir. 1995) (refusing to construe a motion for
continuance, in which questions were raised related to expert
testimony, as a motion for appointment because the defendant’s
request did not refer to either § 3006A or the defendant’s
6
The district court granted Hardin an extension of time in
which to file the § 3006A(e) motion. That decision is not
challenged here.
12
indigence and did not primarily seek appointment of an expert).
Instead, the language of the statute requires that the expert
services not be authorized in the absence of an “appropriate
inquiry in an ex parte proceeding” and two determinations by the
court: that the services are necessary for an adequate defense and
that the defendant is financially unable to obtain those necessary
services. See 18 U.S.C. § 3006A(e)(1).
On this record, however, the district court should have
permitted an ex parte proceeding on the motion for appointment
because the indigent defendant presented an ex parte application
under § 3006A(e)(1) specifically identifying as the disputed issue
whether bones are “materials that must be separated from the
controlled substance” prior to use or whether “such mixture cannot
readily be separated from the mixture or substance.” See U.S.S.G.
§ 2D1.1, cmt. n.1. The resolution of this issue turns on questions
of both fact and law, the nature of bones and the interpretation of
§ 2D1.1, and is material because Hardin’s applicable sentence
differs substantially dependant on the issue’s resolution. On this
record, and after an ex parte proceeding on the motion, the
district court should have granted Mr. Courtney’s appointment as
necessary to Hardin’s adequate defense, under § 3006A(e)(1), to
inform the description and characterization of bones.
On this record we cannot determine what, if anything, the
court relied upon in denying expert appointment, and the record
13
does not confirm what is the factual nature of bones for purposes
of making the necessary § 2D1.1 determination.
III.
Based on the foregoing, we determine that prior to Hardin’s
resentencing, a hearing on the nature of bones is required. Only
upon such a record may the district court then address whether the
material found at the scene of Hardin’s apprehension should be
included as a mixture or substance under § 2D1.1 or should be
excluded as a material that must be separated prior to the use of
methamphetamine. See U.S.S.G. § 2D1.1.
Such proceedings are required before this Court can review
Hardin’s remaining challenge, that the court erred in including
bones in the attributable drug quantity under § 2D1.1. As such, we
need not and cannot review, on this record, Hardin’s challenge to
the district court’s inclusion of the bones as a matter of law. We
state no opinion on the propriety of including bones within the
drug quantity calculation under U.S.S.G. § 2D1.1.
On remand and following the district court’s hearing of
testimony on the nature of bones and analysis of the material under
§ 2D1.1, a sentence within the correctly determined guideline range
will be entitled to a strong presumption of reasonableness. Mares,
402 F.3d at 519. Review of whether the guidelines are correctly
applied – whether bones are included under § 2D1.1 – is de novo.
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). In
14
the event the district court resentences Hardin outside of the
applicable guideline range, then, as we have previously directed,
the court
should carefully articulate the reasons [it] concludes
that the sentence [it] has selected is appropriate for
that defendant. These reasons should be fact specific and
include, for example, aggravating or mitigating
circumstances relating to personal characteristics of the
defendant, his offense conduct, his criminal history,
relevant conduct or other facts specific to the case at
hand which led the court to conclude that the sentence
imposed was fair and reasonable. Such reasons are
essential to permit this court to review the sentence for
reasonableness as directed by Booker.
Id.
CONCLUSION
Based upon the foregoing, we vacate Hardin’s sentence and
remand the case to the district court with instructions (1) to
appoint Hardin’s chemical expert and take testimony from such
expert as well as any relevant expert tendered by the United States
for purposes of providing testimony on the issue of the nature and
character of bones vis-a-vis methamphetamine production and
sentencing; (2) to determine the guideline range for sentencing in
light of any changes in the relevant drug quantity necessitated by
the court’s findings based upon the expert testimony; (3) to
resentence Hardin; and (4) to provide reasons for any departure
from the calculated guideline range in conformance with our
directive in Mares.
SENTENCE VACATED; REMANDED WITH INSTRUCTIONS FOR RESENTENCING.
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