
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  U.S. Attorney,  with whom  Sheldon            ___________________                                        _______        Whitehouse, United  States Attorney, and Kenneth  P. Madden, Assistant        __________                               __________________        U.S. Attorney, were on brief for appellee.                                 ____________________                                    July 31, 1995                                 ____________________               COFFIN, Senior  Circuit Judge.  Appellant  Roderick Campbell                       _____________________          was  convicted  on six  counts  related  to the  manufacture  and          distribution of  phenylacetone (P2P) and  sentenced to a  term of          imprisonment of 288 months.  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  1993, a  special  agent for  the Drug  Enforcement          Agency  working in  an undercover  role initiated  a relationship          with defendant Campbell.  The agent, Kelly, claimed to be working          for a New York  organization that was looking for a steady source          of  P2P  to  be  used  in  the  manufacture  of  methamphetamine.          Campbell agreed to set up a laboratory.                On February 10,  1993, Kelly met  Campbell at a  laboratory          that  had been  set  up in  a  home  in Cranston,  Rhode  Island.          Campbell  delivered  a  small  amount of  a  substance  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  manufacturing  method designed  to avoid  the          distinctive  odor  associated  with  the  traditional  method  of          manufacturing  P2P.  A  second sample  delivered about  two weeks          later, manufactured by the traditional method, did contain P2P.               In  March, Campbell  moved  the lab  to  a new  location  in          Providence,  and Kelly  was  introduced to  Campbell's associate,                                         -2-          Harold  Farrell,  who  said  that  he  would  be  responsible for          delivering  the P2P  from that  point on.   Farrell  indicated to          Kelly  that 100  gallons of  P2P would  be manufactured.   During          March and  April, six separate deliveries  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  26, 1993.  A DEA chemist  testified that when he          entered  the  laboratory that  day  he  observed active  chemical          reactions consistent with the manufacture  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.   Seven distribution counts were          dismissed  after laboratory  analysis  showed  that the  mixtures          involved in those deliveries tested negative  for the presence of          controlled substances.  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)  and  846  (count  one);          knowingly and intentionally manufacturing  P2P, in violation of            841(a)(1), (b)(1)(C),  and 18 U.S.C.   2 (count two); maintaining          a place for the purpose  of manufacturing P2P, in violation of             856 (count  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.   2  (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  instead sought  to mislead  his  customer, Kelly,  into          purchasing  lawful chemical  substances.   He  testified that  he          hoped to  finance legitimate  business interests with  money made          from the sale of these substances.  He claimed that  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  guilty          on  count seven,  the methaqualone  count.   He was  sentenced to          concurrent  288-month  terms of  imprisonment  on  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  a minimum quantity          as a prerequisite for  prosecution.  See 21  U.S.C.   841  (a)(1)                                               ___          ("[I]t   shall  be   unlawful   for  any   person  knowingly   or          intentionally . .  . to manufacture, distribute, or  dispense, or                                         -4-          possess with  intent to  manufacture, distribute, or  dispense, a          controlled  substance . . .  .").  See also id.  at    846, 856.1                                             ___ ____ ___          Ample caselaw further establishes that no specific quantity needs          to  be proven  for conviction.   See  United States  v. Restrepo-                                           ___  _____________     _________          Contreras, 942 F.2d  96, 99 n.1 (1st Cir. 1991);  see also United          _________                                         ___ ____ ______          States  v. Bounds, 985 F.2d 188,  193-94 (5th Cir. 1993);  United          ______     ______                                          ______          States v. Kwong-Wah, 966  F.2d 682, 685 (D.C. Cir.  1992) (citing          ______    _________          other cases).               The amount of the controlled substance underlying a criminal          indictment typically becomes relevant  only at the penalty stage.          See  21  U.S.C.    841(b);  Kwong-Wah,  966  F.2d  at  685.   The          ___                         _________          Sentencing Guidelines  set penalties  based on weight,  and state          that the weights set  forth in the Drug  Quantity Table refer  to          "the entire  weight  of any  mixture  or substance  containing  a          detectable amount of the controlled substance."  U.S.S.G.   2D1.1          n.*.   Thus, any "detectable  amount" is sufficient  to trigger a          penalty.               Taking this  scheme at face value,  Campbell's conviction is          rock  solid since no one  disputes that a  "detectable" amount of          P2P   was  obtained.     Campbell,   however,  claims   that  the          Constitution requires  a different  analysis when the  controlled          substance at  issue  is  a precursor  chemical  like  P2P,  whose          manufacture and  possession is  proscribed solely because  of its          relationship to another controlled substance (in the case of P2P,                                        ____________________               1 Campbell  does  not  contest  that  P2P  is  a  controlled          substance.                                         -5-          either amphetamine  or methamphetamine).  See 21  U.S.C.   811(e)                                                    ___          (authorizing Attorney General to  place an immediate precursor in          the same schedule in  which the controlled substance of  which it          is an immediate precursor  is placed or in any  higher schedule).          Campbell maintains that a precursor  must be found in  sufficient          quantity to  be useable  in making  the  controlled substance  to          which it owes  its illegality.   Prosecuting  lesser amounts,  he          asserts, is outside  the scope of Congress' intent  in regulating          controlled substances  and an impermissibly vague  application of          federal drug laws.               Whatever the merits of  such arguments in a case in  which a          totally unuseable  amount of a controlled  precursor chemical has          been seized, see United  States v. Ruff, 984  F.2d 635, 639  (5th                       ___ ______________    ____          Cir. 1993),2  they  are unavailing  here.   The  defendant's  own          expert  testified  that  the   samples  delivered  in  this  case          contained  enough P2P  to  produce at  least  a small  amount  of          methamphetamine.3    Thus,  the  charged  conduct  fell  directly          within the  statutory goal of  controlling chemicals that  may be          used in the manufacture of a controlled substance.  See 21 U.S.C.                                                              ___                                        ____________________               2 The Court  in Ruff reversed  a defendant's conviction  for                               ____          possession  of  P2P  with intent  to  manufacture methamphetamine          because  the only P2P possessed by the defendant -- trace amounts          that appeared to be  the residue from a manufacturing  process --          was not enough for manufacturing purposes.  984 F.2d at 639.                3  Dr. Suggs stated that the substances seized could be used          to  produce from  "one  or two"  methamphetamine  pills to  "many          dozens of pills,"  depending upon  the percentage of  P2P in  the          mixtures  and  the  method of  production.    He testified  that,          according to  his appraisal of  the government's data,  there was          between  eight percent and less than one percent P2P contained in          the samples.                                            -6-            802(23) (defining "immediate precursor").  We see no basis upon          which to  exclude small  amounts of  useable precursors  from the          statutory prohibition.               Consequently,  we need  not  explore the  boundaries of  the          Congressional grant  of authority to  criminalize the manufacture          of precursor chemicals.   The  fact that Campbell  did produce  a          useable  amount of P2P also  is fatal to  his vagueness argument,          which rests upon the assertion that  he could not have known that          unuseable amounts of P2P would subject him to prosecution.4               (2) Reasonable Doubt Instruction                   ____________________________               As part  of its  reasonable doubt instruction,  the district          court  told  the  jury  that  "a  reasonable  doubt is  sometimes          described  as a fair doubt  based upon reason  and common sense."          Campbell contends  that this  phrase made the  court's reasonable          doubt  instruction  constitutionally  defective,   citing  United                                                                     ______          States v. Campbell,  874 F.2d 838 (1st Cir. 1989).   We disagree.          ______    ________                                        ____________________               4 Indeed,  the vagueness  argument is entirely  inapplicable          here.  "[T]he void-for-vagueness doctrine  requires that  a penal          statute define the criminal  offense with sufficient definiteness          that ordinary  people can  understand what conduct  is prohibited          and  in   a  manner  that   does  not  encourage   arbitrary  and          discriminatory enforcement."   Kolender v. Lawson,  461 U.S. 352,                                         ________    ______          357  (1983) (quoted in Posters `N' Things, Ltd. v. United States,                                 ________________________    _____________          114   S.  Ct.  1747,  1754  (1994)).     The  statute's  absolute          prohibition  against  the  manufacture,  use  and  possession  of          controlled   substances  provides  an  explicit  warning  against          dealing with any quantity.                       ___               Nor  does   the   Guidelines'  reference   to   "detectable"          quantities  render the scheme unduly vague.  The message is clear          that those who dabble in controlled substances will be subject to          prosecution  if  such  substances  are  found.    The  fact  that          increasingly   sophisticated   technology  permits   increasingly          smaller  amounts  to  be detectable  presents  no  constitutional          vagueness  problem; it  simply means  that the  opportunities for          violating the law without being caught are decreasing.                                         -7-          In  Campbell, we  rejected a  defendant's attack  upon reasonable              ________          doubt  instructions given at his trial, but also said that courts          should avoid equating reasonable  doubt with fair doubt.   Id. at                                                                     ___          842-43.  Here, the court spoke of a fair doubt "based upon reason          and  common sense."   Since  a reasonable  doubt may  be properly          described as a doubt based on reason, Victor v.  Nebraska, 114 S.                                                ______     ________          Ct.  1239,  1243  (1994), the  concept  of  reasonable doubt  was          present in the very formulation under  attack.  We do not believe          the jury  would have understood  use of the  additional adjective          "fair" to have altered the correct meaning.               Moreover,  the court used the term "fair doubt" but once; it          used the  term "reasonable doubt"  no fewer  than fifteen  times.          For example, the court instructed the jury that the defendant "is          presumed  innocent unless  and  until the  Government proves  him          guilty beyond a reasonable  doubt" and that "in order  to convict          the  Defendant of  any of  these charges,  the Government  has to          prove  all of  the elements  applicable to  that charge  beyond a          reasonable  doubt."  Taking the  instructions as a  whole, we are          convinced that the  jury was  properly advised of  the very  high          degree  of confidence  in  Campbell's guilt  needed  in order  to          convict.5  We see no reasonable  likelihood that use of the  term                                        ____________________               5  Indeed, our  determination  that  Campbell's rights  were          unimpaired  by this  instruction is  reinforced by  his counsel's          treatment  of this issue at trial.  Counsel initially objected to          use of  the term "fair doubt,"  but the next day,  when the court          asked  for proposed clarifying language  to read to  the jury, he          did  not offer  any.   While  we need  not treat  this as  formal          waiver,  it  confirms  our   view  that  use  of  the   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  than  him personally,  to cross-examine  a          government  expert  witness.   A  defendant  has  a  right to  be          represented by counsel, Gideon v. Wainwright,  372 U.S. 335, 344-                                  ______    __________          45 (1963), or to proceed pro  se, Faretta v. California, 422 U.S.                                   ___  __  _______    __________          806,  819-20 (1975),  but  does not  have  the right  to  "hybrid          representation" -- choosing those portions of the trial he wishes          to conduct and leaving the rest to counsel.  McKaskle v. Wiggins,                                                       ________    _______          465  U.S.  168,  183 (1984).    This does  not  mean  that hybrid          representation  is  forbidden;  rather,  "it is  to  be  employed          sparingly  and,  as a  rule, is  available  only in  the district          court's  discretion."   United States  v. Nivica, 887  F.2d 1110,                                  _____________     ______          1121 (1st Cir. 1989).   Stressing the highly technical  nature of          the  expert's testimony, Campbell  argues that he,  far more than          his lawyer,  possessed  the scientific  expertise  necessary  for          effective cross-examination.               We  see no abuse of discretion in the trial judge's decision          to the contrary.   The court found  that, while defendant  was an          expert  in  chemistry,  defense counsel  more  effectively  could          elicit  the  technical  testimony  in  a  fashion that  would  be          intelligible  to the  jury.   Moreover, the  court took  pains to          accommodate Campbell's request.   Defense counsel  cross-examined          the expert thoroughly, frequently  conferring with Campbell as he                                         -9-          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  conduct recross-examination,  and both          defense counsel  and Campbell personally informed  the court that          they  were  "all  set."   In  sum,  the  district court  balanced          Campbell's  interest in  bringing his  knowledge of  chemistry to          bear on the cross-examination  of an important government witness          with  its responsibility  for the  orderly administration  of the          trial.  It exercised its discretion quite appropriately.                            III. Challenges to Sentencing                                 ________________________               Campbell  claims that the  district court over-sentenced him          in a  variety of  ways.6  After  reviewing each  of these  claims          with care, we have  concluded, for the reasons that  follow, that          all are either legally or factually flawed.7                 (1) Calculation of Offense Level                     ____________________________               As noted earlier,  see Section II  (1) supra, sentences  for                                  ___                 _____          controlled substance  convictions are  linked to the  quantity of                                        ____________________               6  The  November  1993  edition of  the  federal  sentencing          guidelines applies to this case.   See United States v. Muniz, 49                                             ___ _____________    _____          F.3d  36, 39 n.3  (1st Cir. 1995).   Unless  otherwise noted, all          references are to that version.               7  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.  This enhancement is indicated          when a defendant  "used a special  skill . .  . in a manner  that          significantly facilitated  the commission  or concealment  of the          offense."   U.S.S.G.    3B1.3.   Those  possessing the  requisite          special  skills include  "pilots, lawyers,  doctors, accountants,          chemists,  and  demolition  experts."   Id.  at  comment.   (n.2)          ________                                ___          (emphasis added).  Thus, there  is no abuse of discretion in  the          court's  conclusion  that Campbell's  near  Ph.D.  training as  a          chemist facilitated his commission  of the crime of manufacturing          the chemical P2P.                                         -10-          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  P2P  to calculate  his  base offense          level: (1) it wrongly  included the total weight of  the mixtures          containing P2P, rather  than looking  only to the  actual P2P  in          those mixtures, and  (2) it  wrongly included the  weight of  the          mixtures that tested negative for P2P.  We consider each of these          assertions in turn.               Total weight.  The defendant's argument that only the actual               ____________          amount of P2P should  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  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."    2          D1.1(c)  (Drug  Quantity)  n.*.    The  commentary  provides,  in          relevant part, that:               [m]ixture 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    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.                        2D1.1(c), comment. (n.1).   In promulgating the amendment,  the          Sentencing  Commission  sought  to  resolve  a  conflict  in  the          circuits  "regarding   the  meaning  of  the   term  `mixture  or          substance,' as used in    2D1.1 by expressly providing  that this                                         -11-          term does not include portions of a drug mixture that  have to be          separated  from the  controlled substance  before the  controlled          substance can be used."  U.S.S.G. App. C, amend. 484.  See United                                                                 ___ ______          States   v.  Killion,  7  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  weight of the  P2P          mixtures.    The  commentary  excludes only  materials  that  are          unusable or  unmarketable, such  as those  used to  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,  51-54 (5th Cir.  1993), or waste products  of          ______          the  drug manufacturing  process  that are  discarded before  the          controlled  substance is  put into  the distribution  chain, see,                                                                       ___          e.g., United States  v. Johnson,  999 F.2d 1192,  1194 (7th  Cir.          ____  _____________     _______          1993).    The  mixtures in  this  case  did  not contain  surplus          materials that needed to be separated from the P2P  before it was          useable.  Both the defendant's and government's experts testified          that  methamphetamines  may  be  made from  such  mixtures,  and,          indeed,  the  mixtures  themselves  were  the  products  sold  by          Campbell to Kelly.  See Palacios-Molina,  7 F.3d at 54 ("[I]t  is                             ____ _______________                                        ____________________               8  This  circuit  had  held  that  the weight  of  unusable,          unmarketable materials may  be included for  sentencing purposes.          See, e.g.,  United States v. Mahecha-Onofre, 936 F.2d 623, 625-26          ___  ____   _____________    ______________          (1st Cir. 1991)  (entire weight of suitcases  composed of cocaine          bonded chemically with acrylic  suitcase material minus all metal          parts was  includable for sentencing purposes);  United States v.                                                           _____________          Restrepo-Contreras,  942 F.2d 96,  99 (1st Cir.  1991) (proper to          __________________          include weight of statues made of cocaine and beeswax).                                          -12-          the amount  of th[e]  commodity  trafficked that  counts.").   As          such,  the  non-P2P materials  in  these  mixtures were  akin  to          cutting  agents or  impurities,  not waste  products.9   Thus, in          these circumstances,  the  guideline provides  for  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  217 (5th                                 ______________    _____          Cir. 1995) (per curiam),  in support of his contention  that only                      ___ ______          the  actual P2P should  be counted.  The  court in Mimms remanded                                                             _____          for  further fact  findings  after concluding  that the  district          court had  misinterpreted expert testimony concerning  the amount          of P2P contained in three containers holding about 32 pounds of a          slurry-liquid substance.  The  district court erroneously thought          the expert had stated  that 20 percent of the entire  exhibit was          P2P when,  in fact, the  expert had indicated that  20 percent of          the  liquid  poured from  the  three containers  (at  most, 91.55          grams) was P2P.  The Fifth Circuit's discussion, somewhat sketchy          in this  per  curiam opinion,  suggests that  the district  court                   ___  ______          should have used the weight of only the 20 percent  of the liquid          that was P2P.               Nothing in  the  opinion,  however,  indicates  whether  the          liquid  mixture containing the P2P was useable or marketable.  It          was described as  resulting from  "a reaction mixture."   Id.  at                                                                    ___          220.   We therefore view Mimms as distinguishable from this case,                                   _____          where testimony showed  the entire substance  to be both  useable          and marketable.   See also  United States v.  Towe, 26  F.3d 614,                            ___ ____  _____________     ____          616-17  (5th  Cir.  1994)  (per  curiam)  (improper  to  sentence                                      ___  ______          defendant based  on total  weight  of mixture  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  a  mixture  or substance          containing only relatively small amounts of P2P."               This approach to drug quantity  is proper.  The span of  the          conspiracy charged  in  the indictment  encompassed all  fourteen          deliveries, including the seven that ultimately tested  negative.          The guidelines state, in relevant part:                    If the  offense involved  both a substantive  drug               offense  and an  attempt or  conspiracy (e.g.,  sale of               five  grams  of  heroin  and  an  attempt  to  sell  an               additional  ten grams  of  heroin), the  total quantity               involved shall be aggregated  to determine the scale of               the offense.          U.S.S.G.     2D1.1,  comment. (n.12).    The  same  evidence that          permitted  the  jury to  find,  beyond a  reasonable  doubt, that          Campbell intended  to produce  P2P supported the  court's finding          that  each delivery, regardless of its actual P2P content, was an          intended  part  of  the charged  scheme.    See  supra at  2-3.11                                                      ___  _____          Under  the  guideline  provision  quoted above,  such  a  finding          requires  inclusion  of  the  negative  substances  in  the  drug          quantity calculation.   See United States v. Youngpeter, 986 F.2d                                  ___ _____________    __________          349, 354 (10th Cir.  1993) (where effort to produce six pounds of          methamphetamine  produced  only  one because  of  "inept  cooking          ability,"  full  amount intended  is counted).12   Cf.  Muniz, 49                                                             ___  _____                                        ____________________               11 The district court's  sentencing findings, of course, may          be  based on  the  lower preponderance-of-the-evidence  standard.          United States v. Legarda, 17  F.3d 496, 499 (1st Cir. 1994).   We          _____________    _______          review   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.   2D1.4, which provided that                  __________          if the defendant  is convicted of  a conspiracy or an  attempt to          commit any controlled substance  offense, the offense level shall          be the  same "as if the  object of the conspiracy  or attempt had                                         -14-          F.3d  at 39 (if  defendant had either  the intent or  capacity to          deliver  the full amount of drugs under negotiation in an aborted          narcotics transaction, then that amount must be included); United                                                                     ______          States  v. White,  888  F.2d  490,  499  (7th  Cir.  1989)  ("The          ______     _____          Guidelines  treat   success  and  failure,   conviction  and   no          conviction,alikeindrugcases,solongastheamountsareascertainable.")               We  therefore   detect  no  error  in   the  court's  basing          Campbell's sentence on  the full amount of the  liquids delivered          during the course of the conspiracy.               (2) Enhancement for Obstruction of Justice                   ______________________________________               Campbell  next  contests  the  imposition  of   a  two-level          enhancement for obstruction of justice, which was based  upon the          court's finding that  he had committed  perjury.  The  guidelines          specifically  list  perjury  as  a  trigger  of  the  obstruction          enhancement.  U.S.S.G.   3C1.1 comment., (n.3(b)).  And the court          clearly applied the correct  legal test for perjury:  whether the          defendant   intentionally  gave  false   testimony  concerning  a          material matter.  See United States v. Dunnigan, 113 S. Ct. 1111,                            ___ _____________    ________          1116 (1993);  United States v.  Matiz, 14  F.3d 79, 84  (1st Cir.                        _____________     _____          1994).  Thus, the only basis for disturbing the enhancement is if          the  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   2D1.1.          See U.S.S.G. App. C, amend. 447.             ___                                         -15-          maintained that the  P2P in  the mixtures he  delivered had  been          produced  by accident; his true intent, he maintained, was not to          produce any  P2P, but to  deceive his  purchasers into  believing          they  were receiving P2P.   The court made  express fact findings          supporting  its perjury  determination at  the conclusion  of the          sentencing  hearing,  noting  that  a number  of  factors  belied          Campbell's  story.    First,   it  found  incredible   Campbell's          contention  that he was attempting to deceive individuals whom he          believed to  be New York-based narcotics  traffickers, because he          had no means  of protecting himself when they found out that they          had been swindled.   Second, the court found it  implausible that          he  would have told his co-conspirator  that the substances being          delivered were 85%  P2P, as  he admitted he  had, if he  believed          they contained  no P2P at all.   Third, the court  found that the          complexity   and  sophistication   of  the   laboratory  Campbell          established supported the conclusion  that he intended to produce          P2P, not,  as he claimed,  to deceive one  of the  purchasers who          obviously had  no experience in  chemistry or P2P  production and          could have  been deceived  by a  far less  elaborate setup.   The          court  went on  to find  that, at  several points,  Campbell gave          testimony at his sentencing hearing that was facially implausible          and contradictory.               In  short,   after  reviewing   the  trial   and  sentencing          transcripts, we  find the  court's conclusion that  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  for the crime  and to the severity  of          sentence, it was obviously  material.  See Matiz,  14 F.3d at  84                                                 ___ _____          (court  of  appeals  can  make materiality  determination  absent          express district court finding).  Thus, we affirm the obstruction          enhancement.               (3) Upward Departure in Criminal History                   ____________________________________               Campbell also takes issue with the  upward adjustment of his          Criminal   History   Category   (CHC)  based   on   the   court's          determination  that his original CHC  did not account  for all of          his prior criminal activity, and that Campbell was likely to be a          recidivist.   First, in a single sentence without any citation to          legal  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,  Campbell  has          forfeited it.   United States v. Fahm, 13 F.3d  447, 450 n.2 (1st                          _____________    ____          Cir. 1994).13   His  broader claim  that the  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  actually  exist; and  third, is  the          departure  reasonable."  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  ultimately relied          upon by the court for its upward departure.                                         -17-          the  circumstances here are of a type that may warrant departure.          See U.S.S.G.   4A1.3,  p.s. (expressly authorizing departure when          ___          "reliable  information  indicates   that  the   [CHC]  does   not          adequately  reflect  the  seriousness  of  the  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  for clear error, and          we give  considerable  deference to  its  "judgment call"  as  to          whether those facts warrant the departure.  Id. at 450-51.  Here,                                                      ___          the court made several independent findings, any one of which was          sufficient  to trigger  the  adjustment.   The  court found  that          Campbell had  engaged in assorted  criminal conduct that  had not          been  included in  his CHC,  including manufacturing  and selling          grignard  reagents after learning  that they were  being used for          illegal purposes  and making deliveries of PCP (commonly known as          angel dust)  in addition to a  delivery in 1983 for  which he was          convicted.   The basis for both of these findings were admissions          by  Campbell himself, hardly the stuff of clear error.  Moreover,          based on  the fact  that  Campbell committed  the instant  crimes          shortly after being  released from a significant  prison term for          similar conduct, and on the court's finding that he had displayed          a complete lack  of contrition or remorse during the proceedings,          the  court  concluded that  he was  likely  to return  to similar          criminal activity  upon his release.   The court's  fact findings          were  not clearly  erroneous,  and  we  see  no  basis  here  for          disturbing  the   court's  judgment  that   an  enhancement   was                                         -18-          indicated.   Finally, in light of the multiple grounds upon which          the  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  court erred by using  the          wrong  multiplier to  convert  the weight  of  the P2P  into  its          equivalent  marijuana weight.   Deriving  a marijuana  weight was          necessary  because  the Drug  Quantity  Table  in the  sentencing          guidelines lists offense levels for only the most common types of          controlled substances.  To determine the appropriate sentence for          crimes involving  less common  substances, such  as P2P,  a judge          must calculate their marijuana equivalent.               Drug Equivalency  Tables  are  provided  for  this  purpose.          According to the relevant table, one gram of P2P is equivalent to          416  grams of  marijuana  "when  possessed  for  the  purpose  of          manufacturing methamphetamine."  "[I]n  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  to be  used to  manufacture          methamphetamine.   Campbell,  however,  argues  that  the  higher          multiplier  applies  only  when   P2P  possessors  also  are  the          methamphetamine manufacturers, since only  then would a defendant          in  fact possess  the  P2P  "for  the  purpose  of  manufacturing          methamphetamine."                                         -19-               Although such an  interpretation seems technically  possible          given the language of the  provision, closer analysis reveals its          flaw.   The  government  suggests that  the provision  reflects a          judgment by the  Sentencing Commission to attach a higher penalty          to  the most  serious possession  of P2P  -- for  the purpose  of          manufacturing methamphetamine -- as distinguished from possession          of  P2P  for  use in  making  amphetamine  or possession  without          knowledge of its intended  use.  According to the  government, an          individual  making   P2P  destined   for  use   in  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,  the history of the P2P          listings in  the  equivalency table  supports  this view  of  the          provision's  reach.     Before  November  1989,   those  listings          contained  different  conversion   amounts  for  P2P   explicitly          depending  upon whether the P2P was an amphetamine precursor or a          methamphetamine precursor.   See  U.S.S.G. App. C,  amend. 125.14                                       ___          An  amendment to the guidelines at that time changed the language          to its  present form,  without any accompanying  explanation that          the revision was  meant to change the  basic reason for  the two-          tiered approach to P2P  sentencing.  See id.  We  therefore think                                               ___ ___                                        ____________________               14  The earlier  version of the  table stated that  "1 gm of          Phenylacetone/P2P (amphetamine precursor)"  equalled 0.375  grams          of  cocaine  or  0.075  grams  of   heroin  and  that  "1  gm  of          Phenylace[t]one/P2P  (methamphetamine precursor)"  equalled 0.833          grams  of cocaine  or 0.167 grams  of heroin.   U.S.S.G.  App. C,          amend. 125.   A later  amendment changed the  cocaine and  heroin          references to amounts of marijuana.  Id. at amend. 396.                                               ___                                         -20-          it  evident that no substantive change was intended, and that the          two multipliers  continue to  reflect a judgment  that possessing          P2P linked  to  the  manufacture  of methamphetamine  is  a  more          serious crime than possessing it in other circumstances.15                Although the new language  left room for Campbell's argument          here,16   the   legislative  history   satisfies   us  that   the          Sentencing Commission intended that a defendant who possesses P2P          for  the ultimate  purpose  of  manufacturing methamphetamine  is          subject  to the  higher  multiplier, regardless  of who  actually          makes  the methamphetamine.   The  district court's  finding that          Campbell possessed the P2P for that purpose is unassailable.                                    IV. Conclusion                                        __________               Having  carefully considered each of the defendant's claims,          we  are unable  to detect  any reversible  error in  the district          court's  conduct of the trial or its decisions on sentencing.  We          wish  to note, however, our sense that  the sum of the parts here          is  a whole  that  is contrary  to the  age-old wisdom  that "the          punishment should  fit the crime."  Campbell, who is now 46, will          serve  24 years in prison for --  at base -- producing a quantity          of  P2P  that  would  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  note that  Campbell's alternative reading  could have          been  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  P2P  was  possessed  "with  intent  that  it  be  used  for"          manufacturing methamphetamine.                                         -21-          methamphetamine.   Under  Congress's  sentencing  regime, we  are          obliged  to  endorse this  harsh result.    See United  States v.                                                      ___ ______________          Jackson, 30  F.3d  199,  204-05  (1st Cir.  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-
