USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 94-1546

UNITED STATES OF AMERICA,

Appellee,

v.

RODERICK A. CAMPBELL,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Albert B. West, by Appointment of the Court, for appellant.

______________
Roderick A. Campbell on brief pro se.
____________________
Margaret E. Curran, Assistant
___________________
Whitehouse, United
__________

U.S. Attorney,

with whom

Shel
____

States Attorney, and Kenneth P. Madden, Assist

__________________

U.S. Attorney, were on brief for appellee.

____________________

July 31, 1995

____________________

COFFIN, Senior Circuit Judge.

_____________________

Appellant

Roderick Campbell

was

convicted

distribution of

on six

counts

related

to the

phenylacetone (P2P) and

imprisonment of 288 months.

manufacture

sentenced to a

and

term of

He raises numerous issues concerning

his trial and sentencing, none of which we find meritorious.

I. Factual and Procedural Background

_________________________________

We begin with a brief review of the facts, as the jury could

have found them, providing

more details later in the

opinion as

necessary to provide context for our discussion.

In early

Agency

1993, a

working in

special

an undercover

with defendant Campbell.

for a New York

of

P2P

to

be

agent for

the Drug

role initiated

Enforcement

a relationship

The agent, Kelly, claimed to be working

organization that was looking for a steady source

used

in

the

manufacture

of

methamphetamine.

Campbell agreed to set up a laboratory.

On February 10,

that

had been

Campbell

set

delivered

1993, Kelly met

up in

home

small

Campbell at a

in Cranston,

amount of

laboratory

Rhode

substance

Island.

that

was

supposed to be P2P, but testing showed that it was not.

Campbell

indicated to Kelly that the negative results were due to

his use

of

an alternative

distinctive

manufacturing

odor

P2P.

manufacturing

associated

method designed

with

second sample

the

to avoid

traditional

the

method

delivered about

of

two weeks

later, manufactured by the traditional method, did contain P2P.

In

March, Campbell

Providence,

and Kelly

moved

was

the lab

introduced to

-2-

to

a new

location

in

Campbell's associate,

Harold

Farrell,

delivering

Kelly

the P2P

that 100

March and

who

said

that

from that

gallons of

he

would

point on.

P2P would

be

responsible for

Farrell

indicated to

be manufactured.

April, six separate deliveries

During

of mixtures containing

P2P were made to Kelly by either Farrell alone or by both Farrell

and Campbell.

An additional seven deliveries were determined not

to contain any P2P.

Campbell,

Farrell

and

two

laboratory

assistants

were

arrested on May

entered

the

26, 1993.

A DEA chemist

laboratory that

day

he

testified that when he

observed active

reactions consistent with the manufacture

chemical

of P2P, and also found

in the lab all of the chemicals necessary to produce P2P.

A federal grand jury originally charged Campbell and Farrell

in an eighteen-count indictment.

dismissed

after laboratory

Seven distribution counts were

analysis

showed

involved in those deliveries tested negative

controlled substances.

that the

mixtures

for the presence of

Farrell pleaded guilty to ten counts, and

was sentenced to ten concurrent terms of 48 months' imprisonment.

A redacted indictment was filed at the outset of

Campbell's

trial, charging him with seven counts: conspiracy to manufacture,

distribute

and

possess

with

intent

to

distribute

P2P,

in

violation

of

21

U.S.C.

841(a)(1)

knowingly and intentionally manufacturing

841(a)(1), (b)(1)(C),

a place for the purpose

856 (count

and 18 U.S.C.

and

846

(count

one);

P2P, in violation of

2 (count two); maintaining

of manufacturing P2P, in violation of

three); knowingly and

intentionally distributing P2P

-3-

on three dates in February, March and April 1993, in violation of

841(a)(1), (b)(1)(C), and 18

U.S.C.

(counts four through

six); and conspiracy to manufacture methaqualone, in violation of

846 (count seven).

Campbell's defense was that he never intended to manufacture

P2P, but

purchasing

hoped to

instead sought

to mislead

lawful chemical

his

substances.

finance legitimate

customer, Kelly,

He

testified that

business interests with

from the sale of these substances.

into

He claimed that

he

money made

the presence

of P2P in some of the deliveries was inadvertent.

Following

eight

days of

trial,

the

jury found

Campbell

guilty on counts one through six, the P2P counts, and not

on

count seven,

concurrent

the methaqualone

288-month

terms of

count.

He was

imprisonment

on

guilty

sentenced to

all but

count

three, and to a concurrent 240-month term (the statutory maximum)

on that count.

This appeal followed.

II.

Challenges to Conviction
________________________

We address Campbell's several claims in turn.

(1)

"Detectable" Quantity of P2P

____________________________

Campbell makes several arguments that all reduce essentially

to

the claim that his conviction was unlawful because the amount

of

P2P confiscated was too small.

As a starting point, we note

that the statutes contain no language setting

as a prerequisite for

("[I]t

shall

be

intentionally . .

prosecution.

unlawful

for

See 21
___

any

a minimum quantity

U.S.C.

person

. to manufacture, distribute, or

-4-

841

(a)(1)

knowingly

or

dispense, or

possess with

controlled

intent to

manufacture, distribute, or

substance . . .

.").

See also id.

___ ____ ___

at

dispense, a

846, 856.1

Ample caselaw further establishes that no specific quantity needs

to

be proven

for conviction.

Contreras, 942 F.2d

_________

States
______

See
___

United States
_____________

96, 99 n.1 (1st Cir. 1991);

v. Bounds, 985 F.2d 188,

______

States v. Kwong-Wah, 966

v. Restrepo_________

see also United

___ ____ ______

193-94 (5th Cir. 1993);

F.2d 682, 685 (D.C. Cir.

United
______

1992) (citing

______

_________

other cases).

The amount of the controlled substance underlying a criminal

indictment typically becomes relevant

See
___

21

U.S.C.

841(b);

Sentencing Guidelines

that the weights set

"the entire

weight

only at the penalty stage.

Kwong-Wah,
_________

set penalties

966

mixture

Thus, any "detectable

685.

The

and state

Quantity Table refer

or substance

detectable amount of the controlled substance."

n.*.

at

based on weight,

forth in the Drug

of any

F.2d

containing

U.S.S.G.

amount" is sufficient

to

2D1.1

to trigger a

penalty.

Taking this

scheme at face value,

rock

solid since no one

P2P

was

obtained.

disputes that a

Campbell,

Campbell's conviction is

"detectable" amount of

however,

claims

that

the

Constitution requires

substance at

issue

manufacture and

a different

is

a precursor

possession is

analysis when the

chemical

like

controlled

P2P,

proscribed solely because

whose

of its

relationship to another controlled substance (in the case of P2P,

____________________

1 Campbell

does

not

contest

substance.

-5-

that

P2P

is

controlled

either amphetamine

or methamphetamine).

(authorizing Attorney General to

the same schedule in

be useable

is placed or in any

in making

its illegality.

asserts, is outside

811(e)

place an immediate precursor in

Campbell maintains that a precursor

which it owes

U.S.C.

which the controlled substance of

is an immediate precursor

quantity to

See 21
___

higher schedule).

must be found in

the

which it

sufficient

controlled substance

Prosecuting

lesser amounts,

to

he

the scope of Congress' intent

in regulating

and an impermissibly vague

application of

controlled substances

federal drug laws.

Whatever the merits of

totally unuseable

such arguments in a case in

amount of a controlled

been seized, see United

which a

precursor chemical has

States v. Ruff, 984

F.2d 635, 639

(5th

___ ______________

Cir. 1993),2

expert

they

are unavailing

testified

contained

that

enough P2P

methamphetamine.3

within the

____

the

to

Thus,

here.

samples

produce at

the

statutory goal of

The

defendant's

delivered

least

charged

in

this

a small

conduct

case

amount

fell

of

directly

controlling chemicals that

used in the manufacture of a controlled substance.

own

may be

See 21 U.S.C.
___

____________________

2 The Court
possession
because

of

in Ruff reversed
____
P2P

with intent

a defendant's conviction
to

manufacture methamphetamine

the only P2P possessed by the defendant -- trace amounts

that appeared to be

the residue from a manufacturing

was not enough for manufacturing purposes.

3
to

process --

984 F.2d at 639.

Dr. Suggs stated that the substances seized could be used

produce from

dozens of pills,"
mixtures

for

and

according to

the

"one

or two"

methamphetamine

depending upon
method of

his appraisal of

pills to

the percentage of

production.

P2P in

He testified

the government's data,

"many

the

that,

there was

between

eight percent and less than one percent P2P contained in

the samples.

-6-

802(23) (defining "immediate precursor").

which to

exclude small

amounts of

We see no basis upon

useable precursors

from the

statutory prohibition.

Consequently,

Congressional grant

we need

not

explore the

of authority to

boundaries of

the

criminalize the manufacture

of precursor chemicals.

useable

The

amount of P2P also

fact that Campbell

is fatal to

which rests upon the assertion that

did produce

his vagueness argument,

he could not have known that

unuseable amounts of P2P would subject him to prosecution.4

(2) Reasonable Doubt Instruction

____________________________

As part

court

told

described

of its

the

jury

that

as a fair doubt

Campbell contends

doubt

reasonable doubt instruction,

"a

States v. Campbell,
______
________

doubt is

sometimes

based upon reason

and common sense."

phrase made the

court's reasonable

that this

instruction

reasonable

the district

constitutionally

defective,

874 F.2d 838 (1st Cir. 1989).

citing

United
______

We disagree.

____________________

4 Indeed,
here.

the vagueness

argument is entirely

"[T]he void-for-vagueness doctrine

inapplicable

requires that

a penal

statute define the criminal

that ordinary
and

in

people can
manner

offense with sufficient definiteness

understand what conduct

that

does

discriminatory enforcement."
357
114

not

encourage

is prohibited
arbitrary

Kolender v. Lawson,
________
______

and

461 U.S. 352,

(1983) (quoted in Posters `N' Things, Ltd. v. United States,

________________________
_____________
S.

Ct.

1747,

1754

prohibition

against

the

controlled

substances

(1994)).
manufacture,

provides

an

The

statute's

use

and

explicit

absolute

possession
warning

of

against

dealing with any quantity.

___
Nor

does

quantities

the

Guidelines'

reference

render the scheme unduly vague.

to

"detectable"

The message is clear

that those who dabble in controlled substances will be subject to

prosecution

if

increasingly
smaller
vagueness

such

substances

sophisticated

amounts

to

problem; it

are

found.

technology

be detectable
simply means

The

permits

presents
that the

no

fact

increasingly

constitutional

opportunities for

violating the law without being caught are decreasing.

-7-

that

In

Campbell, we
________

doubt

rejected a

defendant's attack

instructions given at his trial, but also said that courts

should avoid equating reasonable

842-43.

and

doubt with fair doubt.

common sense."

1239,

Since

a reasonable

1243

(1994), the

concept

present in the very formulation under

the jury

Id. at
___

Here, the court spoke of a fair doubt "based upon reason

doubt may

described as a doubt based on reason, Victor v.

______

Ct.

upon reasonable

would have understood

of

"fair" to have altered the correct meaning.

Nebraska, 114 S.
________

reasonable doubt

attack.

use of the

be properly

was

We do not believe

additional adjective

Moreover,

used the

the court used the term "fair doubt" but once; it

term "reasonable doubt"

no fewer

than fifteen

times.

For example, the court instructed the jury that the defendant "is

presumed

innocent unless

and

guilty beyond a reasonable

the

Defendant of

prove

all of

reasonable

any of

convinced that the

degree

convict.5

these charges,

jury was

in

that charge

instructions as a

properly advised of

Campbell's guilt

We see no reasonable

needed

him

to convict

the Government

applicable to

Taking the

of confidence

Government proves

doubt" and that "in order

the elements

doubt."

until the

has to

beyond a

whole, we are

the very

in order

likelihood that use of the

high

to

term

____________________

Indeed, our

determination

that

Campbell's rights

were

unimpaired
treatment
use of
asked
did

by this

instruction is

of this issue at trial.

the term "fair doubt,"

reinforced by

Counsel initially objected to

but the next day,

for proposed clarifying language

not offer

waiver,

it

any.

confirms

While
our

his counsel's

we need
view

that

when the court

to read to
not treat
use

of

the jury, he

this as
the

formal

term

was

insignificant here.

-8-

here led the jury to apply a constitutionally deficient standard.

See id. at 1243.

___ ___

(3) Cross-Examination of Expert Witness

___________________________________

Campbell next contends that the court erred in allowing only

his

attorney, rather

government

expert

than

him personally,

witness.

to cross-examine

defendant

has

represented by counsel, Gideon v. Wainwright,

______
__________

45 (1963), or to proceed pro

___

806,

819-20 (1975),

but

right to

be

372 U.S. 335, 344-

se, Faretta v. California, 422 U.S.

__ _______
__________

does not

have

the right

to

"hybrid

representation" -- choosing those portions of the trial he wishes

to conduct and leaving the rest to counsel.

465

U.S.

168,

representation

sparingly

court's

and,

183 (1984).

is

forbidden;

as a

discretion."

rule, is

This does

rather,

not

mean

"it is

to

available

United States
_____________

McKaskle v. Wiggins,
________
_______

only in

v. Nivica, 887
______

that hybrid

be

employed

the district

F.2d 1110,

1121 (1st Cir. 1989).

the

Stressing the highly technical

expert's testimony, Campbell

his lawyer,

possessed

argues that he,

the scientific

expertise

nature of

far more than

necessary

for

effective cross-examination.

We

see no abuse of discretion in the trial judge's decision

to the contrary.

The court found

expert

in

chemistry,

elicit

the

technical

intelligible

to the

that, while defendant

defense counsel

testimony

jury.

in

more

accommodate Campbell's request.

effectively

fashion that

Moreover, the

court took

Defense counsel

the expert thoroughly, frequently

-9-

was an

could

would

be

pains to

cross-examined

conferring with Campbell as he

went.

At the close of redirect testimony, the court specifically

asked the defense if it needed further time to confer, ostensibly

to

determine

whether to

defense counsel

they

were

Campbell's

"all

conduct recross-examination,

and Campbell personally informed

set."

interest in

In

its responsibility

the

bringing his

bear on the cross-examination

with

sum,

the court that

district court

knowledge of

and both

balanced

chemistry to

of an important government witness

for the

orderly administration

of the

trial.

It exercised its discretion quite appropriately.

III. Challenges to Sentencing

________________________

Campbell

in a

claims that the

variety of

ways.6

with care, we have

After

district court over-sentenced him

reviewing each

of these

concluded, for the reasons that

claims

follow, that

all are either legally or factually flawed.7

(1) Calculation of Offense Level

____________________________

As noted earlier,

controlled substance

see Section II
___

convictions are

(1) supra, sentences

_____

linked to the

for

quantity of

____________________

The

November

1993

edition of

guidelines applies to this case.

F.3d

36, 39 n.3

(1st Cir. 1995).

the

federal

sentencing

See United States v. Muniz, 49

___ _____________
_____
Unless

otherwise noted, all

references are to that version.

In

an

easily

resolved

claim,

Campbell

contests

the

district court's imposition of

a two-level enhancement for abuse

of his special skill as a chemist.

when a defendant

"used a special

significantly facilitated
offense."
special
chemists,
________

U.S.S.G.

and

court's

conclusion

Those

experts."

Thus, there

. in a manner

or concealment

possessing the

"pilots, lawyers,

demolition

(emphasis added).

skill . .

the commission

3B1.3.

skills include

This enhancement is indicated

Id.
___

that

of the

requisite

doctors, accountants,
at

comment.

(n.2)

is no abuse of discretion in

that Campbell's

chemist facilitated his commission

the chemical P2P.

-10-

near

Ph.D.

training as

the

of the crime of manufacturing

drugs for which the

defendant is found responsible.

See United
___ ______

States v. Muniz, 49 F.3d 36, 39 (1st Cir. 1995).

______
_____

Campbell argues

that the district court made two crucial errors

in using a total

of

5,628.1

milliliters of

level: (1) it wrongly

containing P2P, rather

those mixtures, and

P2P

to calculate

his

base offense

included the total weight of

the mixtures

than looking

(2) it

only to the

wrongly included the

mixtures that tested negative for P2P.

actual P2P

in

weight of

the

We consider each of these

assertions in turn.

Total weight.
____________

amount of P2P should

The defendant's argument that only the actual

be considered is based on a

1993 amendment

to the commentary that follows the applicable guideline, U.S.S.G.

2D1.1.

The guideline states that, unless otherwise specified,

"the

weight of

refers

to

the

a controlled

entire

substance set

weight

of

any

forth in

mixture

the table

or

substance

containing a detectable amount of the controlled substance."

D1.1(c)

(Drug

Quantity)

n.*.

The

commentary

provides,

in

relevant part, that:

[m]ixture or substance does not include materials

must be separated from

the controlled substance before

the controlled substance can be used.

materials

include

cocaine/fiberglass

that

the

bonded

Examples of such

fiberglass

suitcase,

in

beeswax

in

cocaine/beeswax statue, and waste water from an illicit

laboratory used to manufacture a controlled substance.

2D1.1(c), comment. (n.1).

Sentencing

circuits

Commission

"regarding

substance,' as used in

In promulgating the amendment,

sought

the

to

meaning

resolve

of

the

conflict

term

in

`mixture

2D1.1 by expressly providing

the

the

or

that this

-11-

term does not include portions of a drug mixture that

have to be

separated

before the

controlled

U.S.S.G. App. C, amend. 484.

See United
___ ______

from the

controlled substance

substance can be used."

States
______

v.

Killion,
_______

F.3d

927,

932-33

(10th

Cir.

1993)

(describing conflict and citing cases).8

The

commentary

and

explanation

make it

clear

that

the

district court properly

considered the total

mixtures.

The

commentary

excludes only

unusable or

unmarketable, such

as those

weight of the

materials

used to

that

P2P

are

transport the

controlled substance, see, e.g., United States v. Mahecha-Onofre,

___ ____ _____________
______________

936

F.2d 623, 625-26 (1st Cir. 1991); United States v. Palacios_____________

_________

Molina, 7 F.3d 49,

______

the

51-54 (5th Cir.

drug manufacturing

controlled

substance is

e.g., United States

____ _____________

1993).

process

The

put into

v. Johnson,
_______

mixtures in

this

1993), or waste products

that are

discarded before

the distribution

999 F.2d 1192,

case

did

useable.

the

chain, see,
___

1194 (7th

not contain

materials that needed to be separated from the P2P

of

Cir.

surplus

before it was

Both the defendant's and government's experts testified

that

methamphetamines

indeed,

the

mixtures

Campbell to Kelly.

may

be

made from

themselves

were

See Palacios-Molina,
____ _______________

such

the

mixtures,

products

and,

sold

by

7 F.3d at 54 ("[I]t

is

____________________

This

circuit

had

unmarketable materials may

See, e.g.,
___ ____

held

the weight

be included for

of

unusable,

sentencing purposes.

United States v. Mahecha-Onofre, 936 F.2d 623, 625-26

_____________
______________

(1st Cir. 1991)

(entire weight of suitcases

bonded chemically with acrylic

parts was

that

composed of cocaine

suitcase material minus all metal

includable for sentencing purposes);

Restrepo-Contreras,
__________________

942 F.2d 96,

99 (1st Cir.

United States v.
_____________

1991) (proper to

include weight of statues made of cocaine and beeswax).

-12-

the amount

of th[e]

such,

non-P2P materials

the

cutting

agents or

commodity

impurities,

these circumstances,

the

trafficked that

in

counts.").

these

mixtures were

not waste

products.9

guideline provides

for

akin

As

to

Thus, in

counting

the

total weight of the liquids containing P2P.10

Negative mixtures.
_________________

Campbell and Farrell

delivered a total

of 4007.1 milliliters of substances that turned out to contain no

detectable

amounts of

P2P.

The

district court

included this

amount in calculating Campbell's offense level based on a finding

that

Campbell

"conspired to

manufacture

and

to possess

with

intent to distribute all P2P

whether it turned out to be

P2P or

____________________

9 Defendant cites United States v. Mimms, 43 F.3d

______________
_____
Cir. 1995) (per curiam),
___ ______
the

actual P2P should

for

further fact

court had

217 (5th

in support of his contention

be counted.

findings

The

that only

court in Mimms remanded

_____

after concluding

that the

misinterpreted expert testimony concerning

district

the amount

of P2P contained in three containers holding about 32 pounds of a

slurry-liquid substance.
the expert had stated
P2P when,
the

in this

per
___

expert had indicated that

poured from

grams) was P2P.

district court erroneously thought

that 20 percent of the entire

in fact, the

liquid

The

the

three containers

exhibit was

20 percent of

(at

most, 91.55

The Fifth Circuit's discussion, somewhat sketchy

curiam opinion,
______

suggests that

the district

should have used the weight of only the 20 percent

court

of the liquid

that was P2P.

Nothing in
liquid

opinion,

however,

indicates

whether

mixture containing the P2P was useable or marketable.

was described as
220.

the

resulting from

"a reaction mixture."

Id.
___

the

It

at

We therefore view Mimms as distinguishable from this case,

_____

where testimony showed

and marketable.

the entire substance

See also

United States v.

to be both
Towe, 26

useable

F.3d 614,

___ ____
616-17

(5th

Cir.

defendant based

1994)

on total

_____________
(per
___

____

curiam)
______

weight

(improper

of mixture

to

sentence

containing P2P

if

mixture contained waste products).

10 Because the offense

level calculation properly took into

account the total quantity of the mixtures, we reject defendant's

claim that the

district court

erred in denying

his motion

for

funds to analyze the concentrations of P2P in the mixtures.

-13-

not

or

whether

it turned

out

to be

mixture

containing only relatively small amounts of P2P."

or substance

This approach to drug quantity

conspiracy charged

in

is proper.

the indictment

The span of

encompassed all

deliveries, including the seven that ultimately tested

the

fourteen

negative.

The guidelines state, in relevant part:

If the
offense
five

offense involved

and an

grams

of

additional

attempt or
heroin

ten grams

conspiracy (e.g.,

and
of

both a substantive

an

attempt

heroin), the

involved shall be aggregated

to

drug

sale of
sell

an

total quantity

to determine the scale of

the offense.

U.S.S.G.

permitted

2D1.1,

the

jury to

Campbell intended

that

comment. (n.12).

find,

to produce

beyond a

The

same

evidence that

reasonable

P2P supported the

doubt, that

court's finding

each delivery, regardless of its actual P2P content, was an

intended

part

of

the charged

scheme.

See
___

supra at
_____

2-3.11

Under

the

requires

guideline

inclusion

provision

of

quantity calculation.

349, 354 (10th Cir.

the

negative

such

substances

in

finding

the

drug

See United States v. Youngpeter, 986 F.2d

___ _____________
__________

1993) (where effort to produce six pounds of

methamphetamine

produced

ability,"

amount intended

full

quoted above,

only

one because

of

is counted).12

"inept

Cf.
___

cooking

Muniz, 49
_____

____________________

11 The district court's

be

based on

the

lower preponderance-of-the-evidence

United States v. Legarda, 17

_____________
_______
review

sentencing findings, of course, may

F.3d 496, 499 (1st Cir. 1994).

We

its findings of fact at sentencing under the deferential

clearly erroneous standard.

Muniz, 49 F.3d at 41.

_____

12 Youngpeter involved U.S.S.G.

__________
if the defendant

is convicted of

commit any controlled substance

be the

standard.

same "as if the

2D1.4, which provided that

a conspiracy or an

attempt to

offense, the offense level shall

object of the conspiracy

or attempt had

-14-

F.3d

at 39 (if

deliver

defendant had either

the intent or

capacity to

the full amount of drugs under negotiation in an aborted

narcotics transaction, then that amount must be included); United

______

States
______

v. White,
_____

Guidelines

treat

888

F.2d

success

490,

and

499

(7th

failure,

Cir.

1989)

conviction

and

("The

no

conviction,alikeindrugcases,solongastheamountsareascertainable.")

We

therefore

detect

Campbell's sentence on

no

error

in

the

the full amount of the

court's

basing

liquids delivered

during the course of the conspiracy.

(2) Enhancement for Obstruction of Justice

______________________________________

Campbell

next

contests

the

imposition

of

two-level

enhancement for obstruction of justice, which was based

court's finding that

he had committed

specifically

list

perjury

enhancement.

U.S.S.G.

intentionally

material matter.

1116 (1993);

trigger

of

The

the

3C1.1 comment., (n.3(b)).

clearly applied the correct

defendant

as

perjury.

false

testimony

guidelines

obstruction

And the court

legal test for perjury:

gave

upon the

whether the

concerning

See United States v. Dunnigan, 113 S. Ct. 1111,

___ _____________
________

United States v.
_____________

Matiz, 14
_____

F.3d 79, 84

(1st Cir.

1994).

the

Thus, the only basis for disturbing the enhancement is if

fact finding

of

perjury were

clearly

erroneous.

United
______

States v. Tracey, 36 F.3d 199, 202 (1st Cir. 1994).

______
______

The court based its finding on Campbell's testimony at trial

and a three-day sentencing

hearing, during which he consistently

____________________

been completed."

That section later was subsumed within

See U.S.S.G. App. C, amend. 447.

___

-15-

2D1.1.

maintained that the

produced

the mixtures he

delivered had

been

by accident; his true intent, he maintained, was not to

produce any

they

P2P in

P2P, but to

deceive his

were receiving P2P.

purchasers into

The court made

express fact findings

supporting

its perjury

sentencing

hearing,

noting

that

Campbell's

story.

First,

it

contention

that he was attempting to deceive individuals whom he

believed to

had no means

the conclusion

a number

found

be New York-based narcotics

of

factors

incredible

of the

belied

Campbell's

traffickers, because he

of protecting himself when they found out that they

had been swindled.

he

determination at

believing

Second, the court found it

would have told his co-conspirator

implausible that

that the substances being

delivered were 85%

they contained

complexity

P2P, as

he admitted he

no P2P at all.

and

Third, the court

sophistication

of

established supported the conclusion

P2P, not,

as he claimed,

obviously had

could have

court

been deceived

went on

to find

the

by a

believed

found that the

laboratory

Campbell

that he intended to produce

to deceive one

no experience in

had, if he

of the

purchasers who

chemistry or P2P

production and

far less

that, at

elaborate setup.

several points,

The

Campbell gave

testimony at his sentencing hearing that was facially implausible

and contradictory.

In

short,

transcripts, we

after

find the

reviewing

the

trial

court's conclusion that

and

sentencing

Campbell gave

deliberately false testimony to be amply supported in the record.

Since

the false testimony

was relevant to

whether he possessed

-16-

the required mental state

sentence, it was obviously

(court

of

appeals

can

for the crime

material.

enhancement.

See Matiz,
___ _____

make materiality

express district court finding).

and to the severity

14 F.3d at

determination

of

84

absent

Thus, we affirm the obstruction

(3) Upward Departure in Criminal History

____________________________________

Campbell also takes issue with the

Criminal

History

determination

Category

(CHC)

that his original CHC

upward adjustment of his

based

on

the

did not account

court's

for all of

his prior criminal activity, and that Campbell was likely to be a

recidivist.

legal

First, in a single sentence without any citation to

authority, he

contends that

the court

gave insufficient

notice of its intent to depart, and of its reasons for departing.

By

failing

to

develop

this

point

adequately,

forfeited it.

United States v. Fahm, 13 F.3d

_____________
____

Cir. 1994).13

His

broader claim

that the

Campbell

has

447, 450 n.2 (1st

court erred

in its

departure, while properly before us, gives him no greater succor.

In

general, we use a three-part inquiry to assess a court's

decision

to depart:

"first, are the

circumstances of

the case

sufficiently unusual to justify departure; second, do the relied-

upon

factual circumstances

departure

reasonable."

actually

exist; and

third, is

the

United States v. Parkinson, 44 F.3d 6, 9

_____________
_________

(1st Cir. 1994) (citations

omitted).

There is no

question that

____________________

13

We

note that

the argument

had

little promise

in any

event, for the presentence report and the government's sentencing

memorandum

notified Campbell

of

the grounds

upon by the court for its upward departure.

-17-

ultimately relied

the

circumstances here are of a type that may warrant departure.

See U.S.S.G.
___

"reliable

4A1.3,

p.s. (expressly authorizing departure when

information

adequately

reflect

indicates

the

that

seriousness

the

of

[CHC]

the

does

not

defendant's

past

criminal conduct or the likelihood that the defendant will commit

other crimes"); accord Fahm, 13 F.3d at 450.

______ ____

We review the court's factual findings

we give

considerable

deference to

its

whether those facts warrant the departure.

for clear error, and

"judgment call"

Id. at 450-51.
___

as

to

Here,

the court made several independent findings, any one of which was

sufficient

to trigger

Campbell had

been

adjustment.

engaged in assorted

included in

grignard

the

his CHC,

court found

criminal conduct that

including manufacturing

reagents after learning

illegal purposes

The

that they were

that

had not

and selling

being used for

and making deliveries of PCP (commonly known as

angel dust)

in addition to a

convicted.

The basis for both of these findings were admissions

by

delivery in 1983 for

which he was

Campbell himself, hardly the stuff of clear error.

based on

the fact

shortly after being

that

Campbell committed

Moreover,

the instant

released from a significant

crimes

prison term for

similar conduct, and on the court's finding that he had displayed

a complete lack

the

court

of contrition or remorse during the proceedings,

concluded that

criminal activity

he was

upon his release.

likely

to return

The court's

to similar

fact findings

were

not clearly

disturbing

the

erroneous,

court's

and

judgment

we

see

that

no

an

basis

here

enhancement

for

was

-18-

indicated.

the

Finally, in light of the multiple grounds upon which

enhancement was based, we can hardly

say that the amount of

the enhancement, from CHC III to CHC IV, was unreasonable.

(4) The 416 vs. 75 Multiplier

_________________________

Campbell claims that the district

wrong

multiplier to

equivalent

necessary

convert

the weight

marijuana weight.

because

the Drug

court erred by using

Deriving

Quantity

of

the P2P

into

a marijuana

Table

the

its

weight was

in the

sentencing

guidelines lists offense levels for only the most common types of

controlled substances.

crimes involving

To determine the appropriate sentence for

less common

substances, such

as P2P,

a judge

this

purpose.

must calculate their marijuana equivalent.

Drug Equivalency

Tables

are

provided

for

According to the relevant table, one gram of P2P is equivalent to

416

grams of

marijuana

"when

manufacturing methamphetamine."

possessed

"[I]n

for

the

purpose

of

any other case," one gram

of P2P is equivalent to 75 grams of marijuana.

The district

court selected

the 416 multiplier

because of

its

fully supportable finding that Campbell knew that the P2P he

was

making was

intended ultimately

methamphetamine.

multiplier

Campbell,

applies

only

however,

when

P2P

to be

argues

fact possess

the

P2P

"for

the

methamphetamine."

-19-

that

possessors

methamphetamine manufacturers, since only

in

used to

manufacture

the

also

higher

are

the

then would a defendant

purpose

of

manufacturing

Although such an

interpretation seems technically

given the language of the

flaw.

The

government

judgment by the

to

the most

possible

provision, closer analysis reveals its

suggests that

the provision

reflects a

Sentencing Commission to attach a higher penalty

serious possession

of P2P

-- for

the purpose

of

manufacturing methamphetamine -- as distinguished from possession

of

P2P

for

use in

making

knowledge of its intended

individual

making

P2P

amphetamine

use.

or possession

According to the

destined

for

use

in

without

government, an

manufacturing

methamphetamine is thus subject to the 416 multiplier, whether or

not

that

person

actually

intended

to

manufacture

the

methamphetamine.

While

there is no caselaw on point,

equivalency table

the history of the P2P

listings in

the

provision's

reach.

Before

contained

different

conversion

depending

upon whether the P2P was an amphetamine precursor or a

methamphetamine precursor.

An

See
___

supports

November

this view

1989,

amounts

for

those

P2P

U.S.S.G. App. C,

of

the

listings

explicitly

amend. 125.14

amendment to the guidelines at that time changed the language

to its

present form,

the revision was

without any accompanying

meant to change the

tiered approach to P2P

sentencing.

explanation that

basic reason for

See id.
___ ___

We

the two-

therefore think

____________________

14

The earlier

version of the

table stated that

"1 gm of

Phenylacetone/P2P (amphetamine precursor)"

equalled 0.375

of

and

cocaine

or

0.075

Phenylace[t]one/P2P
grams

of cocaine

amend. 125.

grams

of

heroin

that

(methamphetamine precursor)"
or 0.167 grams

A later

of heroin.

amendment changed the

references to amounts of marijuana.

grams

"1

gm

of

equalled 0.833

U.S.S.G.

App. C,

cocaine and

heroin

Id. at amend. 396.

___

-20-

it

evident that no substantive change was intended, and that the

two multipliers

P2P linked

to

continue to

the

reflect a judgment

manufacture

that possessing

of methamphetamine

is

more

serious crime than possessing it in other circumstances.15

Although the new language

here,16

the

legislative

left room for Campbell's argument

history

satisfies

us

that

the

Sentencing Commission intended that a defendant who possesses P2P

for

the ultimate

subject

makes

to the

purpose

higher

of

manufacturing methamphetamine

multiplier, regardless

the methamphetamine.

The

of who

district court's

is

actually

finding that

Campbell possessed the P2P for that purpose is unassailable.

IV. Conclusion
__________

Having

we

are unable

court's

wish

carefully considered each of the defendant's claims,

to detect

any reversible

error in

the district

conduct of the trial or its decisions on sentencing.

to note, however, our sense that

We

the sum of the parts here

is

a whole

that

punishment should

serve

of

is contrary

to the

fit the crime."

24 years in prison for --

P2P

that

would

age-old wisdom

that "the

Campbell, who is now 46, will

at base -- producing a quantity

have allowed

manufacture

of

very

little

____________________

15 Trial

testimony established

that P2P has

no legitimate

commercial use, and typically is used only to make amphetamine or

methamphetamine.

16 We
been

note that

Campbell's alternative reading

could have

avoided with a slight change in phrasing: rather than "when

possessed for the purpose of manufacturing

methamphetamine," the

provision could have provided that the 416 multiplier

applied if

the

used

P2P

was

possessed

"with

intent

manufacturing methamphetamine.

-21-

that

it

be

for"

methamphetamine.

obliged

to

Jackson, 30
_______

Under

endorse this

F.3d

199,

Congress's

sentencing

harsh result.

204-05

(1st Cir.

regime, we

are

See United States v.

___ ______________

1994)

(Pettine,

J.,

concurring) (pursuant to guidelines' "mechanical sentencing," 40-

year-old defendant

must

serve "de

facto life

sentence" of

27

years).

Accordingly, the district court's judgment is affirmed in

____________________________________________________________

all respects.
_____________

-22-