Case: 09-50614 Document: 00511605368 Page: 1 Date Filed: 09/19/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 19, 2011
No. 09-50614 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
PATRICK JARRELL CONN,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:
Patrick Jarrell Conn (“Conn”) pleaded guilty to conspiracy to manufacture
methamphetamine and to possession of pseudoephedrine with the intent to
manufacture methamphetamine. The district court sentenced him to serve
consecutive prison terms of 240 months and 120 months. Conn appeals his
sentence on four grounds. For the following reasons, we AFFIRM the sentence
of the district court.
FACTS AND PROCEEDINGS
Conn ran a methamphetamine operation in Temple, Texas. Along with six
other defendants, he was charged in an eight-count indictment. Count One
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charged all defendants with conspiracy to manufacture methamphetamine, in
violation of 21 U.S.C. § 846, and Count Four charged Conn with possession of
pseudoephedrine and other materials to manufacture methamphetamine, in
violation of 21 U.S.C. §§ 843(a)(6) and 843(d)(2). Counts One and Five charged
Tara Ann Caldwell, Conn’s common law wife, with the same offenses. The other
counts are not relevant here. Conn and Caldwell both pleaded guilty without
plea agreements.
According to Conn’s presentence report (“PSR”), he managed the
methamphetamine operation during the course of the conspiracy. Members of
the conspiracy made multiple purchases of pseudoephedrine tablets in excess of
the maximum legal quantities. Pharmacy logs and videos obtained from
pharmacies confirm the pseudoephedrine acquisition by the conspirators. After
buying pseudoephedrine tablets, the conspirators delivered the tablets to Conn,
who was the primary methamphetamine “cook.” Most of the methamphetamine
manufacturing took place at Conn and Caldwell’s apartment where they lived
with their children.
The PSR asserted that Conn was responsible for 1,136.88 grams of
pseudoephedrine obtained by him or by other members of the conspiracy. Using
the Drug Equivalency Table, U.S.S.G. § 2D1.1, comment (n.10A), the probation
officer determined that 1,136.88 grams of pseudoephedrine converted to 11,368.8
kilograms of marijuana and arrived at a base offense level of 36. Conn’s total
offense level was enhanced to 45 because of his leadership role and because the
offense involved the manufacture of methamphetamine and created a
substantial risk of harm to his minor children. His criminal history category was
I. Conn’s resulting sentencing Guidelines range of imprisonment was “Life.” The
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PSR recommended that Conn receive sentences running consecutively, pursuant
to U.S.S.G. § 5G1.2(d).
Prior to sentencing, Conn requested independent retesting of his children
for methamphetamine. The district court denied this motion. Conn also objected
to the sentences running consecutively. He argued that the court should exercise
its discretion not to impose consecutive sentences to prevent the government
from “double-dip[ping]” by using the total pseudoephedrine quantity to increase
the penalty in both offenses. The district court implicitly rejected Conn’s
objections and sentenced him to below-Guidelines consecutive terms of
imprisonment of 240 and 120 months, respectively, for a total of 360 months
imprisonment. This timely appeal followed.
STANDARD OF REVIEW
This court reviews factual error in sentencing not raised at trial under the
plain error standard of review. See United States v. Whitelaw, 580 F.3d 256, 259
(5th Cir. 2009); United States v. Rodriguez-Rodriguez, 530 F.3d 381, 387-88 (5th
Cir. 2008). We review a denial of discovery for abuse of discretion. United States
v. Webster, 162 F.3d 308, 336 (5th Cir. 1998). The reasonableness of a sentence
is reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
Plain error review requires us to consider four questions: whether “(1)
there was error, (2) the error was plain, (3) the error affected [Conn’s]
substantial rights, and (4) the error seriously affected the fairness, integrity or
public reputation of judicial proceedings.” United States v. Clark, 582 F.3d 607,
616 (5th Cir. 2009) (quoting United States v. Jackson, 549 F.3d 963, 975 (5th
Cir.2008)). Error is “deviation from a legal rule in the absence of a valid waiver”;
plain error is “obvious, clear, or so conspicuous that the trial judge and
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prosecutor were derelict in countenancing” the error; and affecting substantial
rights means “affect[ing] the outcome of the proceeding.” United States v.
Puckett, 505 F.3d 377, 384 (5th Cir. 2007) (internal quotations marks omitted).
“When the three elements of plain error are present, relief on appeal is
discretionary, not mandatory. A court of appeals should exercise its discretion
only when a plain error ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Puckett, 505 F.3d at 384 (alteration in
original) (citing United States v. Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en
banc)). This court has held that “[q]uestions of fact capable of resolution by the
district court upon proper objection at sentencing can never constitute plain
error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
DISCUSSION
Conn raises four issues on appeal: (1) the quantity of drugs used by the
government to calculate the total offense level was plainly erroneous; (2) the
district judge’s denial of his motion for independent drug testing of his children
was an abuse of discretion; (3) sentencing him to consecutive terms was
substantively unreasonable; and (4) his counsel’s decision not to oppose certain
sentencing factors constituted ineffective assistance.
A. The Drug Quantity is Not Plainly Erroneous
Conn challenges the drug quantity that formed the basis for his sentence
on two grounds. First, he asserts that the drug calculations in the PSR contain
mathematical errors. Second, in response to our request for supplemental
briefing, he asserts that the computation of the weight of pseudoephedrine was
improper under U.S.S.G. § 2D1.11, note (C). Because Conn failed to raise either
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argument before the sentencing court, we review both for plain error. Whitelaw,
580 F.3d at 259.
1. The PSR’s Mathematical Computation
Conn asserts that his sentence is plainly erroneous because the PSR’s drug
calculations, which include monthly and aggregate pseudoephedrine purchases,
are internally inconsistent. Conn’s assertion is not convincing. The PSR based
its calculation on the pharmacy reports which logged pseudoephedrine purchases
for the entire conspiracy. For each defendant, the PSR reported specific
amounts of pseudoephedrine for the months in which the defendant purchased
more than the legal limit. It also reported each defendant’s aggregate purchases
during the entire conspiracy, which lasted nearly two years. The aggregate
amount reported in the PSR therefore includes both itemized monthly purchases
above the legal limit and non-itemized individual purchases below the legal limit
for the other months of the conspiracy. There are no mathematical errors in the
reported quantities. Because “[t]he defendant bears the burden of showing that
the information in the PSR relied on by the district court is materially untrue,”
United States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998) (internal quotation
marks omitted), and Conn has offered no proof of error, he is not entitled to
relief.
2. U.S.S.G. § 2D1.11, note (C)
The PSR attributed 1136.88 grams of pseudoephedrine to Conn. Conn did
not object to this quantity at sentencing. The PSR does not, however, explain
how the probation officer arrived at the quantity of pseudoephedrine used to
determine Conn’s base offense level. U.S.S.G. § 2D1.11, note (C), requires the
court to calculate the base offense level using only the weight of the pure
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pseudoephedrine contained in the tablets and not the weight of the entire tablet.
On appeal, Conn argues that it is not clear whether the 1136.88 grams of
pseudoephedrine reported in the PSR represents pure pseudoephedrine or total
tablet weight. He argues that the district court plainly erred by failing to
determine the method used to weigh the pseudoephedrine, reasoning that “there
is a valid possibility that the [PSR] over-estimated the weight of the
pseudoephedrine based on the weight of the entire pill, and not just the
pseudoephedrine.” The Government asserts that, even assuming error, no plain
error occurred because the relevant quantity of pseudoephedrine is a factual
determination that could have been resolved had Conn timely objected.
We have not specifically addressed whether the application of U.S.S.G. §
2D1.11, note (C), is reviewed as a question of fact or a question of law. In United
States v. Hardin, the defendant argued that some portion of the
methamphetamine powders listed in his PSR were unusable byproduct and
should not have been included in calculating his base offense level. 437 F.3d
463, 467 (5th Cir. 2006). We concluded that whether a substance constitutes
methamphetamine is a question of fact. Id. at 469. We have also suggested that
determining the quantity of a methamphetamine precursor chemical is a factual
inquiry. See United States v. Surasky, 974 F.2d 19, 21 n.5 (5th Cir. 1992).
Our sister circuits have discussed the proper application of § 2D1.11, note
(C). Conn points to United States v. Jumah, 599 F.3d 799, 811-13 (7th Cir.
2010), and United States v. Goodhue, 486 F.3d 52, 59-60 (1st Cir. 2007), in
support of his argument for remand.
In Jumah, the Seventh Circuit held that a sentence based on the gross,
rather than the net, weight of pseudoephedrine tablets is plainly erroneous. 599
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F.3d at 811-13. Jumah’s PSR listed the weight of the pure pseudoephedrine and
also listed the total tablet weight. Id. at 811. Rather than using the pure
weight, the district court sentenced Jumah based on the total tablet weight. Id.
at 813. The government conceded plain error, and the Seventh Circuit required
resentencing based “on the weight of the pure drugs within the pseudoephedrine
tablets” because the error affected Jumah’s substantial rights. Id. at 813-14.
Unlike in Jumah, it is not clear that the district court improperly used the total
tablet weight, and the government does not concede error.
In Goodhue, a case that did not involve pseudoephedrine in tablet form,
the defendant challenged the method used to calculate his sentence for
possession with intent to manufacture methamphetamine. 486 F.3d at 55. At
trial, Goodhue objected to calculating the quantity of ephedrine and
pseudoephedrine found in his home based on their pure weight rather than by
converting to their approximate methamphetamine yield. Id. at 57. Unlike
Goodhue, Conn did not object to the quantity of pseudoephedrine in his PSR.
The First Circuit discussed § 2D1.11, note (C), and commented that tablets
generally contain only a small percentage of pure pseudoephedrine and in “the
tablet situation . . . there is typically no question as to the weight of the pure
precursor chemicals” because “the percentage of the controlled substance . . . is
usually specifically noted on the tablet package.” Id. at 59.
This court has held that “[q]uestions of fact capable of resolution by the
district court upon proper objection at sentencing can never constitute plain
error.” Lopez, 923 F.2d at 50. We now hold that the determination of the
quantity of pseudoephedrine to be used to calculate an offender’s base level
offense is a question of fact. The question of the proper quantity of
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pseudoephedrine to be attributed to Conn is a question of fact “capable of
resolution by the district court” because the district court could have reviewed
the pharmacy logs had Conn objected at sentencing.1 Accordingly, there is no
plain error.
B. Independent Drug Testing
The district court denied Conn’s discovery motion seeking to have his
children independently retested for methamphetamine. At sentencing, Conn
abandoned his objections to the sentencing enhancement based on endangering
a minor under U.S.S.G. § 2D1.1(b)(13)(D). By abandoning his objection to the
sentencing enhancement, Conn waived his right to appeal on this basis. As this
court has held, “waiver is the intentional relinquishment of a known right,” and
“waived errors are entirely unreviewable.” United States v. Arviso-Mata, 442
F.3d 382, 384 (5th Cir. 2006) (internal quotation marks omitted). Thus, we have
no jurisdiction to review the district court’s denial of his discovery request. See
Id.
C. Consecutive Sentences
Conn argues that his consecutive sentences are substantively
unreasonable because Caldwell, who is allegedly a similarly situated defendant,
received concurrent sentences for identical offenses. This court reviews
sentencing decisions for reasonableness under the abuse of discretion standard
of review.
[T]he appellate court should . . . consider the substantive
reasonableness of the sentence imposed under an
1
The pseudoephedrine at issue was all contained in tablets and Conn does not
dispute that the tablets in question contained pseudoephedrine. Further, the pharmacy
logs list the weight of the pure pseudoephedrine and not the total tablet weight.
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abuse-of-discretion standard. When conducting this review, the
court will, of course, take into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range. If the sentence is within the Guidelines range, the
appellate court may, but is not required to, apply a presumption of
reasonableness. But if the sentence is outside the Guidelines range,
the court may not apply a presumption of unreasonableness. It may
consider the extent of the deviation, but must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance. The fact that the appellate court
might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.
Gall, 552 U.S. at 51 (internal citations omitted); see United States v. Brantley,
537 F.3d 347, 349 (5th Cir. 2008).
Review of substantive reasonableness requires this court to “consider the
totality of the circumstances . . .” Brantley, 537 F.3d at 349 (internal quotation
marks omitted) (quoting Gall, 522 U.S. at 51). Conn’s contention that his
consecutive sentences are unreasonable because he and Caldwell are similarly
situated fails, as Conn acknowledged his managerial role in the conspiracy,
whereas Caldwell had no leadership role. We see no abuse of discretion by the
district court in sentencing Conn to 360 months imprisonment.
D. Effectiveness of Trial Counsel
Conn contends that his attorney’s withdrawal of his objection to the
sentencing enhancement for endangering c hi l d r e n under
U.S.S.G. § 2B1.1(b)(13)(D) constitutes ineffective assistance of counsel. The
record is insufficiently developed to allow consideration of Conn’s claim of
ineffective assistance of counsel; such a claim generally “cannot be resolved on
direct appeal when the claim has not been raised before the district court since
no opportunity existed to develop the record on the merits of the allegations.”
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United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal
quotation marks omitted). Conn has shown no reason the court should make an
exception to the general rule. We deny his claim of ineffective counsel without
prejudice. See id.
CONCLUSION
For the foregoing reasons, we AFFIRM Conn’s sentence.
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