                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0561n.06

                                        Case No. 09-5959                                  FILED
                                                                                      May 31, 2012
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk


 UNITED STATES of AMERICA,                            )
                                                      )
        Plaintiff-Appellee,                           )     ON APPEAL FROM THE
                                                      )     UNITED STATES DISTRICT
                v.                                    )     COURT FOR THE EASTERN
                                                      )     DISTRICT OF KENTUCKY
 PAUL LINVILLE BARGO,                                 )
                                                      )
       Defendant-Appellant.                           )
 _______________________________________              )

BEFORE: BATCHELDER, Chief Circuit Judge; SILER and COLE, Circuit Judges.

       ALICE M. BATCHELDER, Chief Judge. Paul Bargo appeals his conviction and sentence

based on the theoretical yield of methamphetamine from a proven quantity of pseudoephedrine. He

also appeals his conviction based on a challenge to venue. We affirm.

                                                 I.

       Paul Bargo was in the business of “cooking” methamphetamine (“meth”) from

pseudoephedrine and selling it. The government caught him and charged him with 17 counts relating

to this activity. Only two of those counts are pertinent here, and both stem from a single incident.

       On February 12, 2008, an undercover detective and a confidential informant met with Bargo

at a Love’s Truck Stop. They gave Bargo 108 boxes of Sudafed, containing 103.68 grams of

pseudoephedrine, on agreement that Bargo would repay with half of the methamphetamine he

manufactured. Bargo boasted that he was the best meth cook ever and promised to produce “three

or four ounces” of meth. Three to four ounces is approximately 84 to 112 grams.
No. 09-5959, United States v. Bargo



         Police arrested Bargo and charged him with — among numerous other things — “possession

of pseudoephedrine for the manufacture of meth” in violation of 21 U.S.C. § 841(c)(2), and “attempt

to manufacture 50 grams or more of methamphetamine” in violation of 21 U.S.C. § 846 and § 851.

Bargo entered not guilty pleas on these charges and the case was tried to a jury.

         At trial, the government produced witnesses to testify about Bargo’s manufacture and

distribution of meth, including the undercover officer and the confidential informant, who testified

about the Love’s Truck Stop transaction and Bargo’s promise of three to four ounces (84 to 112

grams). The government also produced a chemist as an expert witness who testified that the

theoretical yield of 103.68 grams of pseudoephedrine would be 95.45 grams of meth. In defense,

Bargo produced an expert toxicologist and pharmacologist named Dr. Terry Miller who testified that

95.45 grams was an unrealistically high “perfect” conversion and insisted that a proper estimate

would be 27.16 grams (26%). Dr. Miller relied on a table in a paper written by Nila Bremmer and

Robin Woolery of the Division of Criminal Investigation Laboratory, Des Moines, Iowa,1 and called

the paper the “best article available in this field, the most extensive,” and “the very best study

available.” The defense rested its case and the government then called Nila Bremmer (author of the

aforementioned article) as a rebuttal witness. She essentially destroyed Dr. Miller’s testimony and

his credibility, stating that his “calculation does not correlate with anything I recognize.”




         1
           In the Bremmer-W oolery article, the authors reported actual yields obtained using a variety of “recipes” given
to them by actual clandestine meth cooks. The lowest yield in that table was 4% purity and the highest 48%. Dr. Miller
asserted that the midpoint (i.e., 26%) would be the best estimate for this case, which gave 27.16 grams. The 4% to 48%
range gave an estimated range of 4.65 to 50.29 grams for this case.

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No. 09-5959, United States v. Bargo



        The jury convicted Bargo on both counts: possession of pseudoephedrine and attempt to

manufacture 50 grams or more of meth. In calculating the advisory sentencing guidelines for Count

5 (attempt), the court used 95.45 grams as the amount of meth, converted it to marijuana equivalent,

and added that to the rest of the marijuana equivalent to find the base offense level in the drug

quantity table. But after completing that exercise, the court sentenced Bargo to life imprisonment,

the mandatory sentence prescribed by statute. See 21 U.S.C. §§ 841(b)(1)(A) and 851 (imposing a

mandatory sentence on a defendant with two prior drug convictions).

                                                II.

                                                A.

        Bargo argues that the theoretical yield of 95.45 grams was too high — that, in reality, 103

grams of pseudoephedrine would not produce 50 grams or more of meth and, therefore, the evidence

was insufficient to prove the attempt charge. “To convict a person of an attempt to commit a drug

offense, the Government must establish two elements: (1) the intent to engage in the proscribed

criminal activity; and (2) the commission of an overt activity that constitutes a substantial step

toward commission of the crime.” United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998). The

government produced witnesses — an undercover police officer and a confidential informant — who

testified that Bargo boasted that he was the best meth cook and had promised to produce “three or

four ounces” (i.e., 84 to 112 grams) of meth from the pseudoephedrine they delivered. This was

sufficient to support the jury’s finding that Bargo had completed the attempt charge.




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No. 09-5959, United States v. Bargo



                                                  B.

        Bargo argues that the district court erred by using 95.45 grams as the amount of meth to be

converted to marijuana equivalent for purposes of calculating his advisory guideline range. Bargo

is correct, though his analysis is not and his claim is ultimately futile.

        In calculating Bargo’s guidelines range, the district court converted the 103.68 grams of

pseudoephedrine to 95.45 grams of meth (based on the expert’s yield), converted that to 1,909

kilograms of marijuana equivalent (pursuant to the guidelines), added that to the rest of the

marijuana equivalent (from the other crimes) for a total of 3,691 kilograms of marijuana equivalent,

and set the base offense level at 34, based on the § 2D1.1(c)(3) Drug Quantity Table.

        But the applicable Guideline, U.S.S.G. § 2D1.1, has a commentary note for a situation such

as this (Comment 10.E) that instructs the court to convert one gram of pseudoephedrine to ten

kilograms of marijuana equivalent. See United States v. Martin, 438 F.3d 621, 625 (6th Cir. 2006)

(considering this comment). Applying this note results in 1,037 kg of marijuana equivalent in this

case. When added to the other marijuana equivalent, this gives 2,189 kg total, which corresponds

to a base offense level of 32. So, the court’s calculation of 34 was error.

        But Bargo’s conviction was subject to a statutory mandatory term of life imprisonment. And

a defendant cannot contest the reasonableness of a mandatory life sentence. United States v.

Wheeler, 535 F.3d 446, 458 (6th Cir. 2008) (“Because the district court was bound to impose the

mandatory life sentence for the drug conspiracy conviction, any sentencing error would be harmless,

as Wheeler cannot receive a sentence lower than the statutory minimum.”). This claim fails.




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No. 09-5959, United States v. Bargo



                                                   C.

        Bargo contends that the government did not establish the location of the Love’s Truck Stop

where the pseudoephedrine transaction occurred and, therefore, did not establish venue. But Bargo

did not raise this issue in the district court and thus failed to preserve it for appellate review. United

States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000). This claim also fails.

                                                   III.

        For the foregoing reasons, we AFFIRM the judgment of the district court.




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