United States Court of Appeals,
Eleventh Circuit.
No. 94-8404.
UNITED STATES of America, Plaintiff-Appellee,
v.
Edwin Eugene TROUT, Defendant-Appellant.
Nov. 9, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 2:90-00021-CR-5-WCO), William C.
O'Kelley, Judge.
Before EDMONDSON, COX and BIRCH, Circuit Judges.
PER CURIAM:
This appeal presents a first-impression issue for our circuit
concerning whether 21 U.S.C. § 841(b)(1) was unconstitutionally
vague prior to its amendment in 1990. The district court concluded
that it was not and, following the rule of lenity, resentenced the
defendant-appellant under section 841(b)(1)(B)(viii). We AFFIRM.
I. BACKGROUND
Defendant-appellant Edwin Eugene Trout was convicted of
conspiring to manufacture and to possess methamphetamine in
violation of 21 U.S.C. § 846, manufacturing methamphetamine in
violation of 21 U.S.C. § 841, and possessing methamphetamine with
intent to distribute in violation of 21 U.S.C. § 841.1 In Trout's
first appeal, we remanded for resentencing because the district
court improperly had treated as methamphetamine the gross weight of
1
We have detailed the factual background of this case in
United States v. Newsome, 998 F.2d 1571, 1574 (11th Cir.1993),
cert. denied, --- U.S. ----, ----, 114 S.Ct. 734, 737, 126
L.Ed.2d 698, 700 (1994).
chemical mixtures that contained only trace amounts of
methamphetamines. United States v. Newsome, 998 F.2d 1571, 1579
(11th Cir.1993), cert. denied, --- U.S. ----, ----, 114 S.Ct. 734,
737, 126 L.Ed.2d 698, 700 (1994). On remand, the district court
sentenced Trout to concurrent forty-year prison terms on the
conspiracy and manufacture charges and to a consecutive five-year
prison term for possession; the court also sentenced Trout to ten
years of supervised release.
Trout appeals from his resentencing. His main contention is
that section 841(b)(1) is unconstitutionally vague or,
alternatively, that the district court failed to follow the rule of
lenity when applying this ambiguous sentencing provision to his
case. Additionally, Trout argues that the district court erred by
sentencing him under the harsher Guidelines applicable to
D-methamphetamine, rather than those applicable to
L-methamphetamine.2
2
After reviewing the record, we conclude that Trout's five
remaining issues on appeal lack merit and do not warrant
extensive discussion. The district court properly enhanced
Trout's sentence under U.S.S.G. § 3B1.1(b) for his role as a
manager or supervisor; as the chemist in charge of a
methamphetamine laboratory, Trout "exercised management
responsibility over the property, assets, or activities of a
criminal organization," id., comment. (n. 2). Additionally, the
district court correctly applied U.S.S.G. § 4A1.2(e) because
Trout had been incarcerated for a prior conviction within fifteen
years of committing the present offenses; U.S.S.G. § 4A1.1(d)
because Trout had been serving summary probation at the time of
these crimes; and U.S.S.G. § 4B1.1 because Trout's two prior
felony convictions for crimes of violence have no time
limitations for purposes of categorizing Trout as a career
offender. Trout's argument that his conviction for conspiracy
should not count as a drug conviction for purposes of career
offender guidelines was conceded by the government and accepted
by the district court at resentencing; thus, that issue is moot.
II. DISCUSSION
The constitutionality of section 841(b) is a question of law
subject to de novo review. United States v. Osburn, 955 F.2d 1500,
1503 (11th Cir.), cert. denied --- U.S. ----, ----, 113 S.Ct. 223,
290, 121 L.Ed.2d 160, 215 (1992). Concerning Sentencing Guidelines
issues, we review the district court's findings of fact for clear
error and its application of law to those facts de novo. United
States v. Rojas, 47 F.3d 1078, 1080 (11th Cir.1995).
A. Vagueness
Trout first argues that the sentencing provision of section
841 is unconstitutionally vague. Because of a technical error in
the 1988 Anti-Drug Abuse Amendments Act, sections
841(b)(1)(A)(viii) and 841(b)(1)(B)(vii) once prescribed two
different punishments for the same offense. Under section
841(b)(1)(A)(viii), a first-time offender could receive "not ...
less than 10 years or more than life" imprisonment for violations
of section 841(a) involving 100 grams or more of a mixture or
substance containing methamphetamine; under section
841(b)(1)(B)(viii), a first-time offender could receive "not ...
less than 5 years and not more than 40 years" imprisonment for the
identical crime. Although a 1990 amendment to section
841(b)(1)(A)(viii) substituted the words "1 kilogram or more" for
"100 grams or more," the ambiguity was unresolved at the time of
Trout's crimes at issue in this case.
"So long as overlapping criminal provisions clearly define
the conduct prohibited and the punishment authorized, the notice
requirements of the Due Process Clause are satisfied." United
States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2204, 60
L.Ed.2d 755 (1979). Whether section 841(b)(1), prior to its 1990
amendment, was unconstitutionally vague is an issue of first
impression in this circuit. However, the Fifth Circuit has
addressed this precise question on a number of occasions. See
United States v. Kinder, 946 F.2d 362, 367-68 (5th Cir.1991), cert.
denied, 503 U.S. 987, 112 S.Ct. 1677, 118 L.Ed.2d 394, and cert.
denied, 504 U.S. 946, 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992);
United States v. Harris, 932 F.2d 1529, 1535-36 (5th Cir.1991),
cert. denied, 502 U.S. 897, 917, 112 S.Ct. 270, 324, 116 L.Ed.2d
223, 265 (1991), and cert. denied, 502 U.S. 1049, 112 S.Ct. 914,
116 L.Ed.2d 814 (1992); United States v. Shaw, 920 F.2d 1225,
1227-28 (5th Cir.), cert. denied, 500 U.S. 926, 111 S.Ct. 2038, 114
L.Ed.2d 122 (1991). Despite the ambiguity, the Fifth Circuit
concluded that section 841(b)(1) was not unconstitutionally vague
"because Congress defined clearly the conduct prohibited
(possession of 100 grams of a substance containing
methamphetamine), and defendants knew they faced imprisonment of at
least five years." Kinder, 946 F.2d at 367-68. We accept this
reasoning and conclude that section 841(b)(1) provided Trout with
sufficient notice to satisfy due process. Although Trout may not
have known under which provision he would be sentenced if convicted
for the manufacture or possession of more than 100 grams of
methamphetamine, he clearly knew that such conduct was illegal and
punishable by at least five years imprisonment.
B. Rule of Lenity
Trout next contends that the district court failed to follow
the rule of lenity because the court did not sentence him under
section 841(b)(1)(C), a less severe catchall provision with a
maximum penalty of twenty years imprisonment. "When a criminal
statute is ambiguous in its application to certain conduct, the
rule of lenity requires it to be construed narrowly. "[W]here
there is ambiguity in a criminal statute, doubts are resolved in
favor of the defendant.' " United States v. McLemore, 28 F.3d
1160, 1165 (11th Cir.1994) (citation omitted) (alteration in
original) (quoting United States v. Bass, 404 U.S. 336, 348, 92
S.Ct. 515, 523, 30 L.Ed.2d 488 (1971)). While we have not
confronted this issue in the context of section 841(b)(1), the
Fifth Circuit has held that the rule of lenity applies to
sentencing under section 841(b)(1) prior to its 1990 amendment.
See United States v. Sherrod, 964 F.2d 1501, 1505 (5th Cir.1992)
(upholding a sentence imposed under section 841(b)(1)(B)(viii) for
a defendant convicted of manufacturing 17.5 kilograms of a mixture
containing methamphetamine, where offense occurred prior to 1990
amendment to section 841(b)(1)), cert. denied, --- U.S. ----, 113
S.Ct. 832, 121 L.Ed.2d 701, and cert. dismissed, --- U.S. ----, 113
S.Ct. 834, 122 L.Ed.2d 111 (1992), and cert. denied, --- U.S. ----,
113 S.Ct. 1367, 122 L.Ed.2d 745 (1993); Kinder, 946 F.2d at 368
(remanding case for resentencing where district court, prior to the
1990 amendment, sentenced a defendant under the harsher section
841(b)(1)(A)(viii) rather than section 841(b)(1)(B)(viii)).3
3
Contrary to the Trout's suggestion, the Fifth Circuit in
United States v. Allison, 953 F.2d 870, 872-73 (5th Cir.1992),
did not require courts to apply section 841(b)(1)(C) when
confronted with an ambiguous choice between sections
841(b)(1)(A)(viii) and 841(b)(1)(B)(viii). Instead, the district
We conclude that the rule of lenity does not require a
sentencing court to apply section 841(b)(1)(C) when it is unclear
whether a defendant's sentence is governed by section
841(b)(1)(A)(viii) or section 841(b)(1)(B)(viii). While the rule
of lenity directs us to apply the lesser penalty when a statute
presents an ambiguous choice between two punishments, the rule does
not require us to forsake both possibilities and to search for an
even more lenient alternative. "The rule of lenity only serves as
an aid for resolving an ambiguity, it is not an inexorable command
to override common sense and evident statutory purpose." United
States v. Brame, 997 F.2d 1426, 1428 (11th Cir.1993). It is clear
that Congress intended for either section 841(b)(1)(A)(viii) or
section 841(b)(1)(B)(viii) to apply in situations involving more
than 100 grams of mixtures containing methamphetamines; the
statute is not so ambiguous that the district court should have
resorted to sentencing under section 841(b)(1)(C).
In this case, the government conceded at resentencing that
section 841(b)(1) was ambiguous and agreed that the district court
should sentence Trout under section 841(b)(1)(B)(viii), which
provided a lesser punishment than section 841(b)(1)(A)(viii). The
district court accepted this recommendation and sentenced Trout
under section 841(b)(1)(B)(viii). Because the district court
sentenced Trout under less severe section 841(b)(1)(B)(viii), the
rule of lenity was applied. See Kinder, 946 F.2d at 368 (remanding
court in Allison chose to sentence the defendants under section
841(b)(1)(C). Consequently, the Fifth Circuit concluded that the
defendant had suffered no injury in fact under the ambiguous
statutes and, therefore, lacked standing to raise the issue on
appeal.
for resentencing under section 841(b)(1)(B)(viii) to implement the
rule of lenity). Trout's alternative argument concerning
application of the rule of lenity is meritless.
C. D-methamphetamine versus L-methamphetamine
Trout also argues that the government failed to establish
that materials seized from one of Trout's coconspirators contained
D-methamphetamine rather than L-methamphetamine, a less potent
isomer of the same drug. D-methamphetamine carries a heavier
penalty under the Sentencing Guidelines than does an equivalent
amount of L-methamphetamine. See U.S.S.G. § 2D1.1; United States
v. Patrick, 983 F.2d 206, 208 (11th Cir.1993). In Patrick, we held
that the government must prove by a preponderance of the evidence
that controlled substances contain D-methamphetamine rather than
L-methamphetamine. Id. Trout would have us read Patrick as
imposing an even stricter burden on the government by requiring the
performance of one of two specific, laboratory procedures to
distinguish between D-methamphetamine and L-methamphetamine.4
We decline to interpret Patrick to establish this sort of
static, scientific orthodoxy. Our decision there depended less on
the particular tests employed by government experts than it did on
the testimony offered by those same experts. In Patrick, the
government's expert witnesses referred to the seized materials as
"methamphetamine," but they did not offer any testimony to
4
In Patrick, we stated: "Although the [controlled
substance] was tested to determine that it contained
methamphetamine, proof of which type of the drug was involved
would have been impossible without the administration of the more
sophisticated "plane polarized light' test, or the "optically
active column' test. No such testing was performed." Patrick,
983 F.2d at 208 (emphasis added).
establish whether they intended D-methamphetamine or
L-methamphetamine. See id. at 209. We concluded that the
government failed to satisfy its burden to prove which isomer was
present in the illegal sample. Id. at 209, 211.
In contrast, the government did provide such direct evidence
in this case; on numerous occasions, government witnesses
specifically identified the seized materials as containing
D-methamphetamine and described the tests used to analyze these
materials, see, e.g., R19-177. At trial, Trout offered no evidence
to suggest that the seized materials did not contain
D-methamphetamine or that the tests relied upon by the government
were incapable of distinguishing between the two isomers.
Consequently, the district court was not clearly erroneous in
concluding that the government had proven by a preponderance of the
evidence that the material seized from Trout's co-conspirator
contained D-methamphetamine.
III. CONCLUSION
Trout challenges his resentencing for convictions under 18
U.S.C. §§ 841 and 846. We conclude that section 841(b)(1), as it
existed at the time of Trout's offenses, was not unconstitutionally
vague; that the district court properly followed the rule of
lenity when applying this ambiguous provision to Trout; and that
the district court was not clearly erroneous in sentencing Trout
under the Guidelines applicable to D-methamphetamine. We AFFIRM.