In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3148

United States of America,

Plaintiff-Appellee,

v.

Ricky Morrison,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois, Springfield Division.
No. 98 CR 30065--Jeanne E. Scott, Judge.


Argued February 11, 2000--Decided March 28, 2000




      Before Posner, Chief Judge, and Manion and Kanne,
Circuit Judges.

      Kanne, Circuit Judge. Ricky Morrison was
convicted in district court of manufacturing
methamphetamine. On appeal, he claims that the
government failed to produce sufficient evidence
to sustain the conviction and that the district
court improperly attributed too much
methamphetamine to him for purposes of
establishing relevant conduct under the
Sentencing Guidelines. We affirm Morrison’s
conviction, but we vacate the sentence imposed
and remand the case to the district court for
resentencing.


I.   History

      On August 30, 1998, Officer Robert Power of the
Quincy, Illinois, Police Department responded to
a complaint of a strong odor emanating from a
home. Arriving at about 11:15 p.m., Power smelled
an overwhelming odor of ether coming from an
exhaust fan located in an upstairs window of the
home where Ricky Morrison resided. Ether is one
of the many precursor chemicals used in the
ephedrine reduction method of producing
methamphetamine. Power, who was assigned to the
anti-drug West Central Illinois Task Force and
had been trained in investigating clandestine
methamphetamine laboratories, suspected that
Morrison was processing methamphetamine at his
home.

      Power notified his supervisors of his
suspicions, and they decided that he should
maintain surveillance while Morrison remained in
the residence. Shortly thereafter, a vehicle left
Morrison’s home, and Power followed. Power
stopped the car and interviewed the driver,
Deanna Vahle. Power found no items associated
with the production of methamphetamine in Vahle’s
vehicle, so he let Vahle go and returned to
watching the house. Later, another car left from
the residence. Power also followed and stopped
this car. He interviewed the driver, Heather
Gilker, but found nothing associated with the
production of methamphetamine in her car. Power
then returned to the stake-out of Morrison’s
residence.

      About 1:20 a.m., Power spotted Morrison’s truck
leaving the house. Instead of immediately
following himself, Power contacted Officer Lee
Mangold, and requested that Mangold make a
traffic stop. Fortuitously, Morrison failed to
stop at a stop sign, and Mangold attempted to
stop Morrison’s truck. Morrison initially refused
to stop and drove an additional one and one-half
blocks before pulling over. During this short
police chase, police officers detected the odor
of ether coming from Morrison’s truck. When the
truck stopped, Power, accompanied by Sergeant
Glenn Schwartz, brought their squad car alongside
Morrison’s truck. At this point, both men saw
Morrison throw a white object from his vehicle.
The white object turned out to be a twist-off
bottle cap, which matched a twenty- ounce
Mountain Dew bottle that police found half a
block away. The white twist-off cap smelled of
ether, and the Mountain Dew bottle contained a
liquid which field-tested positive for the
presence of methamphetamine.

      After performing the field test, Power searched
Morrison’s truck and found a large wet area on
the outside of the truck, located directly
beneath the driver’s side window. The wet area
smelled like ether, and the liquid that created
the wet spot also tested positive for
methamphetamine. During his search of the truck,
Power also found a receipt from Home Depot
Crossroads dated August 30, 1998. The receipt
showed that Morrison had purchased a screw set,
a plunger and a bottle of drain opener. The
primary ingredient of drain opener is sulfuric
acid, another precursor chemical used in the
production of methamphetamine.

      After obtaining a search warrant, members of
the Quincy police and the West Central Illinois
Task Force, including Power, searched Morrison’s
residence. In the laundry room of the house,
police found an empty Igloo container from which
emanated the smell of anhydrous ammonia,
otherwise known as liquid nitrogen, another
precursor chemical. Liquid nitrogen is a crop
fertilizer used in farming; it produces a noxious
odor and may be toxic if inhaled. The lid to the
container was found in the upstairs bathroom, the
same room where the exhaust fan, from which Power
had initially smelled ether, was located. In the
bathroom, Power now smelled hydrogen chloride
gas, which he determined arose from the sink and
the bathtub. Power associated this scent with the
production of methamphetamine because he knew
that in the methamphetamine production process,
salt and sulfuric acid are mixed to produce
hydrogen chloride gas, which is used to
crystallize liquid methamphetamine. The search
produced no other evidence of precursor chemicals
or other evidence of methamphetamine production
on the premises or in Morrison’s garbage.

      Morrison was arrested and subsequently indicted
on a single count of manufacturing a controlled
substance. At trial, the government offered the
eyewitness testimony of Power, Mangold and
Schwartz. The government also offered the
testimony of Officer Ronald Hanlin, who
participated in the surveillance operation and
the subsequent search of Morrison’s residence,
DEA Special Agent Anthony Grootens, who offered
expert testimony about the methamphetamine
production process, and Timothy C. Anderson, a
forensic chemist who described the procedure that
the government claimed Morrison used to
manufacture methamphetamine. Anderson also had
performed the chemical evaluation of the liquid
found in the Mountain Dew bottle, and he
testified that the liquid in the bottle contained
2.6 grams of methamphetamine, as well as
pseudoephedrine and various other solvent
compounds and by-products.

      The government also proffered the testimony of
two other witnesses, Tammy Kaltenbach and Michael
Childress. They would have testified as to
Morrison’s character using evidence of other
crimes under Rule 404(b) of the Federal Rules of
Evidence. During the government’s offer of proof,
Kaltenbach admitted that her methamphetamine
addiction left her in a "haze," and she was
unable to remember exact dates and specific
occurrences. The district court found that
Kaltenbach appeared confused and lacked
credibility, so it refused to allow her testimony
into evidence. The district court granted
permission for Childress to testify, but the
government chose not to call him. The government
called no further witnesses, and the defense
rested without presenting any evidence. The jury
found Morrison guilty of manufacturing
methamphetamine.

      Although the evidence at trial concerned only
the 2.6 grams of methamphetamine found in the
bottle, the Presentence Investigation Report
("PSR") attributed an additional 409.35 grams of
methamphetamine to Morrison on the basis of other
relevant conduct. The probation office based its
assessment of this relevant conduct calculation
on facts obtained from interviews with seven
witnesses, each of whom had engaged in at least
one methamphetamine "cook" with Morrison in 1998.
The original computation attributed 132 grams of
methamphetamine based on the statement of Craig
Schnelle, 132 grams of methamphetamine based on
the statement of Harold Hills, 5.5 grams based on
the statements of Kaltenbach and Kim Perkins, 69
grams of methamphetamine based on the statement
of Stanley Brown and 70.85 grams of
methamphetamine based on the statement of Monte
Beaston. Beaston’s statement also corroborated
Hills’s and Schnelle’s statements, and the
statement of Michelle Lasby also corroborated
Schnelle’s statement. In addition, both
Kaltenbach and Adam Ransdell said they purchased
methamphetamine regularly during the summer of
1998 from Morrison, but no relevant conduct was
attributed to these statements for fear of
double-counting.

      At the sentencing hearing, the government
conceded that the PSR overstated the amount of
methamphetamine to be attributed on the basis of
Hills’s statement. Instead of 132 grams, the
government only requested that the court include
85 grams in its relevant conduct calculation. To
establish the reliability of the facts on which
the PSR was based, the government called two
witnesses, Grootens and Illinois State Police
Officer Pat Frazier, a task force member.
Grootens stated that he had read the interview
reports on which the PSR was based and that he
found the reports to be consistent with the
ephedrine reduction process of manufacturing
methamphetamine. Frazier testified that he
conducted an interview with Schnelle, who again
confirmed the information included in his
statement, and Fraizer verified that the 132
grams of methamphetamine attributed as relevant
conduct was a conservative estimate. Morrison
presented no witnesses or evidence to contradict
the evidence included in the PSR or the testimony
of Grootens or Frazier.

      The district court concluded that the contents
of the PSR provided sufficient indicia of
reliability and that the evidence established
both a relevant course of conduct and a common
plan or scheme. Although the court intended to
exclude the 5.5 grams of methamphetamine
attributed to the testimony of Kaltenbach, it
mistakenly included this amount in its final
calculation of drug quantity to be attributed on
the basis of relevant conduct. Therefore, the
court included an additional 362.35 grams (the
409.35 grams included in the PSR less the 47
grams attributed from Hills’s statement that the
prosecution admitted resulted from its
miscalculation) of methamphetamine as relevant
conduct for the purposes of calculating
Morrison’s sentence, raising the total drug
quantity to 364.95 grams. For 2.6 grams of
methamphetamine, Morrison’s total offense level
under Guideline sec. 2D1.1(a)(3) would have been
only 14. See United States Sentencing Guidelines
sec. 2D1.1(a)(3). With the inclusion of the
additional 362.35 grams of methamphetamine,
Morrison’s total offense level was 30. The court
made no further adjustments to Morrison’s total
offense level and calculated his criminal history
as category V, resulting in a sentence range from
151 to 188 months. The court sentenced Morrison
to 180 months imprisonment, followed by a term of
six years supervised release.

II.    Analysis

      Morrison raises two issues on appeal. First, he
claims that the government failed to present
sufficient evidence to convict him. Second, he
claims that the sentencing court improperly
attributed too much methamphetamine to him by
considering evidence of relevant conduct that
lacked sufficient indicia of reliability. The
government admits that the PSR erroneously
included facts that resulted in double-counting
for the purposes of computing Morrison’s relevant
conduct. It now claims that Morrison should be
responsible for a total drug quantity of 294.1
grams of methamphetamine, which would result in
a total offense level of twenty-eight.

A.    Sufficiency of the Evidence

       Morrison argues that the jury lacked sufficient
evidence to convict him on the charge of
manufacturing methamphetamine. He admits that he
possessed methamphetamine at the time of his
arrest, but claims that the police did not
uncover enough evidence during the search of his
home to convince a rational jury that
methamphetamine could have been manufactured
there.

      Morrison faces an arduous task in contending
that the jury lacked sufficient evidence on which
to base its conviction. On review, we ask whether
"after viewing the evidence in the light most
favorable to the prosecution, any rational trier
of fact could have found the essential elements
of the crime beyond a reasonable doubt." United
States v. Torres, 191 F.3d 799, 807 (7th Cir.
1999) (quoting United States v. Agostino, 132
F.3d 1183, 1192 (7th Cir. 1997)); see also
Jackson v. Virginia, 443 U.S. 307, 319 (1979). We
will set aside a jury verdict only when "the
record contains no evidence, regardless of how it
is weighed, from which the jury could find guilt
beyond a reasonable doubt." Brandom v. United
States, 431 F.2d 1391, 1400 (7th Cir. 1970).

      Morrison cannot meet this heavy burden. Although
the government’s case is based largely on
circumstantial evidence, "[c]rimes may be proved
entirely by circumstantial evidence." United
States v. Robinson, 161 F.3d 463, 471 (7th Cir.
1998) (quoting United States v. Townsend, 924
F.2d 1385, 1390 (7th Cir. 1991)). Morrison never
questions that the prosecution presented evidence
on all the elements of the charge; instead,
Morrison argues that the cumulative evidence was
insufficient to find guilt beyond a reasonable
doubt. Morrison accurately notes that none of the
precursor chemicals required to manufacture
methamphetamine were found in his home.
Nonetheless, the government produced evidence
from Power which suggested that the smell of
ether emanated from Morrison’s home. The
government also provided evidence that Morrison
recently had purchased drain cleaner, in which
the main ingredient was precursor chemical
sulfuric acid, and that a cooler which smelled of
anhydrous ammonia was found in Morrison’s home.
All these facts provide circumstantial evidence
that Morrison possessed the necessary precursors
to manufacture methamphetamine. The evidence of
anhydrous ammonia is especially probative because
its scent is easily recognizable (in fact, it is
often deadly if inhaled) and out of place in a
residence.

      Morrison also notes that the government found
none of the laboratory equipment required to
"cook" methamphetamine in the search of his home.
However, prosecution expert Grootens testified
that no equipment was "required" to manufacture
methamphetamine. Morrison could have manufactured
methamphetamine in a bath tub if the correct
precursor chemicals were used. To corroborate
this theory, the government presented the
testimony of Power, who stated that he smelled
hydrogen chloride gas emanating from the sink and
bath tub in Morrison’s bathroom. This evidence,
when viewed in the light most favorable to the
prosecution, demonstrates that the manufacturing
process could have occurred in these areas.
Finally, Morrison was arrested in possession of
methamphetamine. This methamphetamine was still
in its liquid, unrefined form, and in this form,
methamphetamine has no recreational use or value
for sale. Possession of a substance in a form
that requires further "cooking" before use is
highly probative to the government’s contention
that Morrison was in the midst of the
manufacturing process when he was arrested. We
find that this evidence, when viewed in the light
most favorable to the prosecution, is sufficient
to allow a rational jury to conclude that
Morrison was engaged in the manufacture of
methamphetamine in his home.

B.   Relevant Conduct

      Morrison also contends that the district court
erred in including an additional 362.35 grams of
methamphetamine to his sentencing calculation as
relevant conduct. The government concedes that
70.85 grams of this relevant conduct
methamphetamine may have been added as a result
of double-counting and asks for a limited remand
on these grounds. Morrison claims more broadly
that none of the facts on which the district
court based its decision bore sufficient indicia
of reliability, so all the methamphetamine added
to the relevant conduct calculation should be
disregarded.

      We review deferentially the district court’s
calculation of drug quantities under the
Guidelines, looking only for clear error. See
United States v. Robinson, 164 F.3d 1068, 1070
(7th Cir. 1999). We acknowledge that a sentencing
court may consider a wide range of information in
making this calculation, provided that this
information includes "sufficient indicia of
reliability to support its probable accuracy."
Id. (quoting United States v. Taylor, 72 F.3d
533, 543 (7th Cir. 1995)). In the instant case,
however, both sides concede that the district
court committed error in its calculation of
relevant drug quantity. Morrison no longer
contests that the evidence tendered by the
government, if sufficiently reliable, would
establish a relevant course of conduct or common
plan or scheme. Therefore, our review of the
information provided to the sentencing court must
sort out which information bears sufficient
indicia of reliability for inclusion into the
calculation of Morrison’s sentence.

      The PSR used the allegations of six witnesses
to include additional methamphetamine in its
initial calculation of relevant conduct: Schnelle
(132 grams), Hills (132 grams), Kaltenbach and
Perkins (5.5 grams), Brown (69 grams) and Beaston
(70.85 grams). The government has since conceded
that the relevant conduct information supplied by
Beaston may duplicate some of the information
supplied by Schnelle and wishes to exclude these
70.85 grams from the calculation. In addition,
the prosecution admitted at sentencing that
Beaston’s testimony limited the amount of
methamphetamine attributable from the statements
of Harold Hills from 132 grams to 85 grams.
Finally, although the sentencing court mistakenly
included the 5.5 grams included pursuant to Tammy
Kaltenbach and Kim Perkins’s testimony, it found
Kaltenbach unreliable as a witness. At
sentencing, the court stated its intention not to
include any methamphetamine added by Kaltenbach’s
testimony. Therefore, we must determine only
whether the statements made by Schnelle, Hills
and Brown are supported by sufficient indicia of
reliability.

      Morrison complains that Schnelle, Hills and
Brown should have testified at Morrison’s
sentencing to demonstrate that, unlike
Kaltenbach, they could coherently defend the
statements attributed to them. Schnelle’s,
Hills’s and Brown’s statements were all hearsay,
but hearsay evidence is admissible in the
sentencing context, where the rules of evidence
do not apply. See United States v. Edwards, 115
F.3d 1322, 1326 (7th Cir. 1997). As such, if the
court concluded that such hearsay was reliable,
it could freely include those statements within
its inquiry into the relevant conduct underlying
Morrison’s conviction. However, in Robinson, 164
F.3d at 1070, we noted that in circumstances
where evidence of relevant conduct significantly
increased drug calculations, statements of a
defendant’s associates might require further
testimony as substantial indicia of reliability.

      In Robinson, evidence of relevant conduct was
based on information taken from state police
investigative reports, and this evidence
accounted for 97 percent of the total quantity of
drugs attributed to the defendant. None of the
individuals who made the statements on which the
relevant conduct calculation was based testified
at trial or at sentencing. Moreover, the majority
of the increase was based on the uncorroborated
testimony of one witness, whose statements made
"no sense at all" and failed to establish the
indicia of reliability on which the sentencing
court must have relied. For this reason, we
vacated Robinson’s sentence and remanded for
resentencing. See id. at 1071. The facts of the
instant case share many similarities with those
of Robinson, but they also demonstrate notable
differences.

      In the case before us, the prosecution seems to
have adopted the same approach that troubled us
in Robinson. The prosecution obtained a
conviction based on the relatively small quantity
of methamphetamine that was found when the
defendant was stopped. At sentencing, the
prosecution sought to enhance substantially the
defendant’s sentence by using statements of his
confederates to establish a pattern of behavior
involving many other instances of drug
manufacture. We have noted our concern with the
potential abuse of "relevant conduct" aggregation
on numerous instances. See, e.g., United States
v. Bacallao, 149 F.3d 717, 721 (7th Cir. 1998);
United States v. Duarte, 950 F.2d 1255, 1263 (7th
Cir. 1991); United States v. Ebbole, 917 F.2d
1495, 1501-02 (7th Cir. 1990); United States v.
Fischer, 905 F.2d 140, 141 (7th Cir. 1990).
However, we necessarily upheld the sentence when
there was evidence of a relevant course of
conduct because the district court is able to
draw upon a wide range of perceptions in
verifying those activities that were part of the
same course of conduct. We will not allow the
disparity between conduct disclosed at sentencing
to enhance a defendant’s sentence to the degree
that the sentencing hearing becomes a "tail which
wags the dog of the substantive offense." United
States v. Corbin, 998 F.2d 1377, 1387 (7th Cir.
1993). Here, as in Robinson, the relevant conduct
attributed to Morrison increased his drug
quantity calculation more than 100 fold.

      In Robinson, we concluded that "it’s not a
terribly bad idea" for individuals to testify
solely because of the effect their statements had
on the sentencing calculation. At trial, the
prosecution attempted to call one of the
witnesses eventually used to establish relevant
conduct in the PSR, Kaltenbach, but the district
court found that her methamphetamine abuse had so
clouded her memory as to make her unreliable as
a witness and refused to allow her testimony.
Morrison contends that the court erred by not
requiring testimony of the individuals whose
statements formed the basis of the PSR, because
the court had no basis to assess whether these
other witnesses were credible. Although this
court has held that district courts should
carefully scrutinize the statements of drug
addicts, see United States v. Beler, 20 F.3d
1428, 1435 (7th Cir. 1994), we do not believe
that witness testimony was required to perform
such scrutiny.

      In Robinson, we found that the evidence lacked
sufficient indicia of reliability because the
statements of the individual who attributed the
lion’s share of the relevant conduct drug
quantity to the defendant made statements that
were uncorroborated and patently unreliable. In
this case, the statements made by Schnelle, Brown
and Hills were not inconsistent and did not
contradict one another. The prosecution presented
Grootens to testify that the statements made by
these witnesses were internally consistent and
credible. According to Grootens, the statements
made by Schnelle, Brown and Hills demonstrated
that Morrison frequently manufactured
methamphetamine, and that, when he did so, his
technique appeared to be consistent with the
ephedrine production manufacture of
methamphetamine. Schnelle, Hills and Brown all
described Morrison to have manufactured
methamphetamine in a uniform manner on multiple
occasions, and the similarity in their statements
reinforced the credibility of each individual
statement. Moreover, because each statement
refers to manufacture at a different location,
there is no longer reason to fear further double-
counting.

     In addition, the testimony of Schnelle and
Hills is corroborated by other statements
included in the PSR. The corroboration of other
witnesses, even if the corroborating witnesses
are of unproven credibility, may imbue their
statements with sufficient indicia of
reliability. See United States v. Taylor, 72 F.3d
533, 543 (7th Cir. 1995). The prosecution called
Frazier, who had conducted an interview with
Schnelle, and Frazier testified that Schnelle
confirmed his statement at the interview.
Schnelle’s statement is corroborated further by
the statements made by Beaston and Lasby.
Although the prosecution presented no witnesses
to confirm that Hills was mentally sound when he
gave his statement, Beaston’s statement also
corroborates Hills’s statement. Brown’s statement
is not corroborated by other statements given.
Nonetheless, his statement is internally
consistent and depicts a course of conduct
congruent to the course of conduct depicted in
the other statements. Because the statements
given by Schnelle, Hills and Brown were
apparently credible and because Schnelle’s and
Hills’s statements were corroborated by the
statements of other witnesses, we find no clear
error in the inclusion of drug quantities alleged
by these witnesses in the calculation of
Morrison’s relevant conduct.

      Therefore, even though Schnelle, Hills and Brown
did not testify, the district court possessed
sufficiently reliable evidence to attribute an
additional 286 grams of methamphetamine
(Schnelle’s 132 grams, Hills’s 85 grams and
Brown’s 69 grams) to the calculation of drug
quantity to attribute to Morrison, which raises
the total drug quantity attributable to Morrison
to 288.6 grams. Accordingly, Morrison’s total
offense level, according to U.S.S.G. sec.
2D1.1(a)(3), should drop from 30 to 28, and his
sentence range would drop from 151 to 188 months
to 130 to 162 months. We vacate Morrison’s
sentence of 180 months and remand to the district
court for resentencing.


III.   Conclusion

      The government presented sufficient evidence to
allow a jury to find Morrison guilty beyond a
reasonable doubt. However, the district court
committed clear error in its calculation of drug
quantities attributable to Morrison’s relevant
conduct. Therefore, we vacate Morrison’s sentence
and remand for resentencing.
