United States v. Young, Jerome

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2001 Decided May 11, 2001

No. 00-3007

United States of America,
Appellee

v.

Jerome Young, a/k/a Akbar Muhammed,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 89cr00387-02)

A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant.

Thomas S. Rees, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Wilma A. Lewis,
U.S. Attorney at the time the brief was filed, John R. Fisher,
Mary-Patrice Brown and John Phillip Dominguez, Assistant
U.S. Attorneys.

 Before: Henderson, Randolph, and Garland, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: In this appeal, Jerome Young
challenges a criminal sentence he received in 1991 for con-
spiracy to manufacture and distribute phencyclidine (PCP).
Although Young did not appeal from this sentence when it
was first imposed, he now seeks a sentence reduction based
on a subsequent amendment to the United States Sentencing
Guidelines (U.S.S.G.). The district court denied Young's
motion, concluding that the amendment did not affect the
manner in which Young's sentence was calculated. We agree
and therefore affirm.

I

On December 4, 1989, Young pled guilty to one count of
conspiring to manufacture and distribute 100 grams or more
of pure PCP, in violation of 21 U.S.C. ss 846 and
841(b)(1)(A)(iv), and to one count of using or carrying a
firearm in relation to a drug trafficking crime, in violation of
18 U.S.C. s 924(c). Judgment at 1. Young's initial sentenc-
ing hearing occurred on February 26, 1990. The presentence
report (PSR) stated that Young and a co-conspirator were
engaged in a PCP manufacturing operation, the first stage of
which had produced a quantity of piperidino-
cyclohexanecarbonitrile (PCC).1 The report stated--as
Young had acknowledged during his plea hearing--that at the
time of his arrest Young was in a van, travelling to a location
where he could acquire a quantity of phenylmagnesiumchlo-
ride (PMC), a chemical he planned to use to convert the PCC
into PCP. 1990 PSR p 12; Change of Plea Tr. at 23, 28-32.
The police stopped the van, arrested Young, and seized 682
grams of PCC crystals, a bottle containing 35 grams of pure
PCP, and a Walther PPK handgun. According to the presen-
tence report, the 682 grams of PCC, when combined with

__________
1 See generally United States v. Gates, 807 F.2d 1075, 1078 (D.C.
Cir. 1986) (describing PCP manufacturing process).

PMC, would have yielded 862 grams of pure PCP. 1990 PSR
p 13.2

The presentence report calculated the weight of the con-
trolled substance involved in Young's crime by adding the 35
grams of pure PCP seized from Young to the 862 grams of
pure PCP that could have been manufactured from the PCC
in his possession, producing a total of 897 grams of pure PCP.
1990 PSR p 22; see United States v. Young, 89-CR-00307-02,
slip op. at 2 (D.D.C. Dec. 15, 1999). The Drug Quantity Table
of Sentencing Guideline s 2D1.1(c) specified a base offense
level of 34 for a "mixture or substance" containing 300-1000
grams of pure PCP. See U.S.S.G. s 2D1.1(c) (1989); id. at
n.*. To this, the district court applied a two-level upward
adjustment for use of a special skill, U.S.S.G. s 3B1.3 (1989),
and a two-level downward adjustment for acceptance of re-
sponsibility, U.S.S.G. s 3E1.1(a) (1989), leaving Young's of-
fense level unchanged at 34. 1990 Sentencing Tr. at 6, 24.
Based on that offense level, and on the presentence report's
calculation of Young's criminal history category, the district
court sentenced Young to 188 months' imprisonment on the
PCP charge and to a mandatory consecutive term of 60
months on the firearm charge. 1990 Sentencing Tr. at 24-26.

Defendant agreed with the presentence report's description
of his offense conduct, and objected neither to the finding
that his crime involved 897 grams of pure PCP, nor to the
conclusion that this produced a base offense level of 34. 1990
PSR p 18; id. at 16. He did object, however, to the two-level
upward adjustment for use of a special skill, and ultimately
prevailed on that point on appeal. See United States v.

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2 The district court's opinion attributes this calculation to the
Drug Enforcement Agency chemist who analyzed the seized chemi-
cals. United States v. Young, 89-CR-00307-02, slip op. at 2
(D.D.C. Dec. 15, 1999). We also note that at Young's plea hearing,
the government stated and Young accepted that the seized PCC, if
fully processed, would have yielded 831 grams of pure PCP. The
record does not reveal why the weight listed in Young's PSR is
different from that stated during the plea hearing, but Young has
alleged neither that the PSR's determination was erroneous nor
that the difference adversely affected his sentence.

Young, 932 F.2d 1510, 1515 (D.C. Cir. 1991). When the
district court resentenced Young on December 18, 1991, the
presentence report again stated that he had been arrested
with 35 grams of pure PCP and 682 grams of PCC, and that
the latter would have produced 862 grams of pure PCP. 1991
PSR p 13. Based on a combined total of 897 grams of pure
PCP, the district court again--and again without objection--
assigned Young a base offense level of 34 and applied a two-
level downward adjustment for acceptance of responsibility.
1991 PSR pp 22, 27. Young was sentenced to 150 months'
imprisonment on the PCP count and to 60 consecutive months
on the firearm count.3 He did not file a direct appeal from
the resentencing.

II

On November 24, 1998, Young filed a motion to reduce his
1991 sentence with the same district judge who had sentenced
him twice before. The motion was filed pursuant to 18 U.S.C.
s 3582(c)(2), which permits a court to modify a term of
imprisonment "in the case of a defendant who has been
sentenced ... based on a sentencing range that has subse-
quently been lowered by the Sentencing Commission."
Young asserted that his sentence should be reduced because
of Guideline Amendment 484, which, effective November 1,
1993, altered Application Note 1 to U.S.S.G. s 2D1.1. At the
time of Young's 1991 resentencing,4 Application Note 1 stat-

__________
3 During his resentencing, Young challenged the criminal history
category used in his 1990 sentencing proceeding. Although Young
had not raised that issue during the appeal from his 1990 sentence,
the government and district court agreed that Young's criminal
history category had been miscalculated, and the court used a
recalculated criminal history category to determine the appropriate
sentence.

4 "Under s 1B1.11 of the Guidelines, ... resentencing occurs
under the version of the Guidelines in effect at the time of resen-
tencing unless such an application would violate the ex post facto
clause of ... the Constitution." United States v. Clark, 8 F.3d 839,
844 (D.C. Cir. 1993). There are, in any event, no substantive
differences between the 1989 and 1991 versions of the guidelines

ed: " 'Mixture or substance' as used in this guideline has the
same meaning as in 21 U.S.C. s 841." U.S.S.G. s 2D1.1,
comment., n.1 (1991). Amendment 484, in relevant part,
added that "[m]ixture 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. app. C,
amend. 484. The amendment went on to note that "[e]xam-
ples of such materials include the fiberglass in a cocaine/fiber-
glass bonded suitcase, beeswax in a cocaine/beeswax statue,
and waste water from an illicit laboratory used to manufac-
ture a controlled substance." Id.

Young argued to the district court that, pursuant to
Amendment 484, the weight of the PCC should not have been
used in determining his offense level. As support, he cited
commentary to the amendment which, he contended, clarifies
that the term "mixture or substance" does not include the
weight of "chemicals seized before the end of processing
[that] are not usable in that form because further processing
must take place before they can be used." U.S.S.G. app. C,
amend. 484, comment. The PCC at issue in this case, he
claimed, was such a chemical.

The district court denied Young's motion on two grounds.
First, the court held that Amendment 484 does not apply to
PCC because PCC is not a material that, in the amendment's
words, "must be separated" from PCP before PCP can be
used. The commentary's reference to seized chemicals, the
court concluded, refers to waste byproducts of the manufac-
ture of a controlled substance and not to precursor chemicals
like PCC. Young, slip op. at 3-4.

Second, the district court held that Amendment 484 would
not reduce Young's sentence in any event, because the court
had not sentenced Young under the provision altered by
Amendment 484--namely, Application Note 1 to Guideline
s 2D1.1. Rather, Young had been sentenced under Applica-
tion Note 12, which applies when the amount of drugs seized
does not reflect the scale of the offense. The court said that,

__________
applicable to Young's sentence. From this point forward, all refer-
ences will be to the 1991 version unless otherwise noted.

in applying the latter note, it had based Young's sentence not
on the amount of PCP or PCC he possessed, but rather on his
capacity to produce a total of 897 grams of pure PCP.
Accordingly, whatever changes were wrought by Amendment
484, they were inapplicable to Young's case. Young, slip op.
at 5.

III

The parties are in accord that the issue presented in this
case is a legal one, and hence subject to our de novo review.
See United States v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000).
As we conclude that the district court's judgment was correct
even on that standard, we need not consider whether a more
deferential standard of review would be appropriate. See id.
(describing applicable standards of review in Guidelines
cases). Moreover, because we agree with the district court's
second rationale--that Young was not sentenced under a
provision affected by Amendment 484--we also need not
consider whether that amendment excludes the weight of a
precursor chemical like PCC from the weight of the "mixture
or substance" to which the Drug Quantity Table of s 2D1.1(c)
applies.

The Drug Quantity Table of Guideline s 2D1.1(c) estab-
lishes the base offense level that corresponds to the weight
and kind of controlled substance involved in a defendant's
offense. As provided in the guideline, "[u]nless 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. s 2D1.1(c), n.*. The guideline further provides that
"[i]n the case of a mixture or substance containing PCP," the
court should "use the offense level determined by the entire
weight of the mixture or substance, or the offense level
determined by the weight of the [pure] PCP ..., whichever is
greater." Id. (emphasis added).

Prior to its 1993 amendment, s 2D1.1 did not define "mix-
ture or substance," other than to state, in Application Note 1,

that the term "has the same meaning as in 21 U.S.C. s 841."
That statute establishes penalties for crimes involving "mix-
ture[s] or substance[s]" containing specified narcotics, but
also does not define the term. The effect of Amendment 484
is to clarify that, in using the Drug Quantity Table, the
sentencing court is to exclude from the weight of the "mixture
or substance" any "materials that must be separated from the
controlled substance before the controlled substance can be
used." U.S.S.G. app. C, amend. 484. Hence, if the court had
sentenced Young based on the weight of a mixture containing
both PCP and PCC, and in doing so had included the weight
of the PCC, it would be necessary to determine whether PCC
is the kind of material whose exclusion is required by Amend-
ment 484.

But it is clear from both the district court's statements and
the presentence report that the court did not sentence Young
based on the weight of a mixture containing both PCP and
PCC. Rather, he was sentenced based on the weight of a
quantity of pure PCP. See Young, slip op. at 2; 1991 PSR
p 13. That quantity consisted of the 35 grams of pure PCP
seized at the time of his arrest, plus the 862 grams of pure
PCP that could have been produced from the amount of PCC
also in Young's possession. The resulting total of 897 grams
of pure PCP corresponds to an offense level of 34, as set forth
in the Drug Quantity Table. See s 2D1.1(c)(5) (specifying
offense level of 34 for offense involving 300-1000 grams of
pure PCP).

As the district court stated, and as the defendant himself
conceded below, the court calculated the amount of pure PCP
involved in Young's offense not by using Application Note 1 to
s 2D1.1, but rather by using Application Note 12. Young,
slip op. at 5 ("[T]he use of Note 12 was the basis of Young's
sentence calculation in this case."); Def.'s Resp. to Gov't's
Opp'n to Mot. to Modify Sentence at 2 ("[W]hen this Court
initially sentenced the defendant, it determined his offense
level by approximating the quantity of PCP that could be
produced from the 682 grams of precursor chemical,

PCC.... See s 2D1.1, Application Note 12."). Under that
note, "[i]f the amount seized does not reflect the scale of the
offense," the court is directed to use Application Note 2 to
s 2D1.4. Application Note 2, in turn, instructs the court to
"approximate the quantity of the controlled substance," and
provides that, in doing so, the court "may consider, for
example, ... the size or capability of any laboratory in-
volved." U.S.S.G. s 2D1.4, comment., n.2.

The undisputed facts of this case established that the
amount of pure PCP seized from Young, 35 grams, did not
reflect the scale of the offense to which he pled guilty:
conspiracy to manufacture and distribute 100 grams or more
of pure PCP. See Judgment at 1. The evidence--which
included Young's acknowledgment that he had been en route
to obtain the chemicals needed to convert the PCC he had on
hand into PCP, see Change of Plea Tr. at 23--established
that Young was conspiring to manufacture considerably more
than those 35 grams. Accordingly, as the district court later
explained, it applied Application Note 12 and considered the
capability of Young's operation, which in this case was evi-
denced by the amount of PCC found in his possession. See
Young, slip op. at 2, 5. The court used that amount to
approximate the quantity of the controlled substance Young
was conspiring to manufacture: pure PCP. And it was that
quantity--the quantity of pure PCP involved--that dictated a
base offense level of 34. See U.S.S.G. s 2D1.1(c)(5) & n.*.

As this recitation makes clear, the district court did not
include the weight of the PCC in the weight of the "mixture
or substance" that was used to determine Young's sentence.
Hence, neither Application Note 1 nor Amendment 484 ap-
plies. Instead, employing Application Notes 12 and 2, the
court used the amount of PCC seized from Young as evidence
of the amount of pure PCP involved in Young's manufactur-
ing conspiracy.5 Courts may rely on the amount of precursor

__________
5 See Young, slip op. at 2 ("When the defendant was first sen-
tenced the court determined his offense level by approximating the

chemicals found in order to "approximate the quantity of the
controlled substance" involved in a manufacturing operation.
U.S.S.G. s 2D1.4, comment., n.2. See, e.g., United States v.
Smith, 240 F.3d 927, 930-31 (11th Cir. 2001); United States
v. Becker, 230 F.3d 1224, 1234-36 (10th Cir. 2000); United
States v. Allison, 63 F.3d 350, 352-53 (5th Cir. 1995); United
States v. Basinger, 60 F.3d 1400, 1409-10 (9th Cir. 1995);
United States v. Evans, 891 F.2d 686, 687-88 (8th Cir. 1989).
Indeed, Application Note 2's reference to "the size or capabil-
ity of any laboratory involved" is listed merely as an "exam-
ple" of the kind of evidence a court may consider in determin-
ing the amount of the controlled substance that was the
object of an incomplete conspiracy. U.S.S.G. s 2D1.4, com-
ment., n. 2.6 As we have previously held, testimony about a
conspirator's intentions alone, even without physical evidence,
may be sufficient to establish the amount of drugs contem-
plated as the object of a conspiracy. See United States v.
Lam Kwong-Wah, 924 F.2d 298, 305-06 & n.4 (D.C. Cir.
1991). Where there is physical evidence, the case is that
much stronger.

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quantity of PCP that could be produced from 682 grams of PCC.");
id. at 5 ("Young could have easily produced 862 grams of pure PCP
with the PCC crystals he had already made once he obtained the
necessary [PMC].... Young's production capability was the basis
of his sentence."); see also Young Br. at 12-13 (conceding that "the
district court did not directly use the weight of the PCC in
determining [Young's] offense level," but that the weight of PCC
was used to determine the quantity of pure PCP "supposedly
capable of being produced from the PCC").

6 In 1991, Note 2 was an application note to s 2D1.4, which
provided that "if a defendant is convicted of a conspiracy ... to
commit any offense involving a controlled substance, the offense
level shall be the same as if the object of the conspiracy ... had
been completed." U.S.S.G. s 2D1.4. The Sentencing Commission
deleted s 2D1.4 in 1992, and moved the relevant text of Note 2 to
Application Note 12 of s 2D1.1. See U.S.S.G. app. C, amend. 447;
United States v. Ynfante, 78 F.3d 677, 680-81 (D.C. Cir. 1996)
(holding that amended Note 12 applies to choate as well as inchoate
offenses).

 In sum, the district court did not include the seized PCC in
determining the weight of a "mixture or substance" under
Application Note 1 to s 2D1.1, but instead used the PCC as
evidence to calculate the weight of pure PCP that was the
object of Young's conspiracy, as prescribed by Application
Note 12 to s 2D1.1 and Application Note 2 to s 2D1.4. As
defendant conceded at oral argument, the latter notes were
unaffected by Amendment 484. See Allison, 63 F.3d at 353
(holding that "Amendment 484 does not speak to the situation
in which the district court is sentencing the defendant based
on the size and capability of the laboratory involved"). For
that reason, Young's motion to reduce his sentence pursuant
to 18 U.S.C. s 3582(c) must fail. That statute provides, in
relevant part, that a court "may not modify a term of
imprisonment once it has been imposed[,] except that" the
court may reduce a prison term "in the case of a defendant
who has been sentenced ... based on a sentencing range that
has subsequently been lowered by the Sentencing Commis-
sion ... if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission." 18
U.S.C. s 3582(c) (emphasis added). To implement that provi-
sion, the Sentencing Commission promulgated Guideline
s 1B1.10, which contains a list of guideline amendments and
states that "[i]f none of the amendments listed ... is applica-
ble, a reduction in the defendant's term of imprisonment
under 18 U.S.C. s 3582(c)(2) is not consistent with this policy
statement and thus is not authorized." U.S.S.G. s 1B1.10(a),
p.s. (2000). Although Amendment 484 is included in the list
of amendments, because the amendment is not applicable to
Young's case, 18 U.S.C. s 3582(c)(2) does not authorize a
reduction in his sentence.

IV

Young raises a number of additional challenges to his
sentence, based not on Amendment 484 but on asserted
deficiencies in the court's application of unamended provisions
of s 2D1.1 and s 2D1.4.7 In light of the foregoing, it is plain

__________
7 The principal deficiency Young asserts is that the district court
should have calculated the weight of PCP involved in his offense by

that those challenges cannot succeed either. As the Sentenc-
ing Commission stated in its commentary to s 1B1.10, when
adjudicating a motion based on s 3582(c)(2), all "guideline
application decisions remain unaffected" other than those
subject to the listed amendments. U.S.S.G. s 1B1.10, p.s.,
comment., n.2 (2000); see United States v. Bravo, 203 F.3d
778, 780-81 (11th Cir. 2000); United States v. Wyatt, 115 F.3d
606, 609 (8th Cir. 1997). Because Young does not allege that
his additional challenges are grounded upon Amendment 484,
or upon any other amendment to the Guidelines, we have no
cause to consider them further.

V

The district court's denial of defendant's motion to modify
his sentence is

Affirmed.

__________
using the Drug Equivalency Table, U.S.S.G. s 2D1.1, comment.,
n.10, rather than by using either Application Note 1 or 12 to
s 2D1.1.