                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 00-1718MN
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Shawn Richard Anderson,                *
                                       *
            Appellant.                 *

      ___________
                                            Appeals from the United States
      No. 00-2098MN                         District Court for the
      ___________                           District of Minnesota

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Mateo Morales,                         *
                                       *
            Appellant.                 *

                                 ___________

                            Submitted: November 14, 2000
                               Filed: January 5, 2001
                                 ___________
Before MORRIS SHEPPARD ARNOLD and JOHN R. GIBSON, Circuit Judges,
and GOLDBERG,1 Judge.
                        ___________

PER CURIAM:



      A jury convicted Shawn Richard Anderson and Mateo Morales ("appellants")
of conspiring to manufacture methamphetamine. The district court2 sentenced both
appellants to 360 months imprisonment and five years supervised release under 21
U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(A). While most of the issues appellants raise
before this court lack any merit, we do find it necessary to revisit briefly the application
to drug sentencing cases of the Supreme Court's opinion in Apprendi v. New Jersey,
530 U.S. ----, 120 S. Ct. 2348, 147 L.Ed. 2d 435 (2000).

       In Apprendi, the Court held that any fact, other than a prior conviction, that
would increase a criminal defendant's sentence beyond the statutory maximum must be
submitted to the jury and proved beyond a reasonable doubt. Id. at 2362-63. Such a
fact effectively becomes the "functional equivalent" of an element of the offense. Id.
at 2365 n.19. In United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000), we
held that the Apprendi rule subsumes federal drug cases applying 21 U.S.C. § 841(b).
220 F.3d at 933.

       In the instant case, the district court instructed the jury that it need find only that
the conspiracy intended to produce a "measurable amount" of methamphetamine, rather
than a specific amount. Subsequently, during the sentencing phase of the proceedings,

       1
             The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
       2
            The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
                                             -2-
the district court made a finding that the conspiracy intended to manufacture more than
fifty grams of methamphetamine. We do not fault the district court for its actions,
which were fully consistent with the established precedent of this circuit before
Apprendi was decided. Because this case is on direct appeal, however, we must apply
Apprendi retroactively. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

       It is clear that under the rule of Apprendi, the district court erred when it found
that appellants conspired to produce more than fifty grams of methamphetamine, and
sentenced them accordingly. Under 21 U.S.C. § 841(b)(1)(A), a participant in drug
conspiracy involving fifty or more grams of methamphetamine may be sentenced to a
maximum of life imprisonment. If the conspiracy involves five or more grams, but
fewer than fifty grams, the maximum sentence allowed is forty years imprisonment, as
established by 21 U.S.C. § 841(b)(1)(B). If there is no finding of drug quantity,
however, 21 U.S.C. § 841(b)(1)(C) caps the maximum sentence at twenty years. In
this case, because the jury found only that appellants conspired to produce a
"measurable amount" of methamphetamine rather than a specific drug quantity,
appellants were properly convicted only of violating 21 U.S.C. § 841(b)(1)(C). By
finding that the conspiracy involved fifty or more grams of methamphetamine, and
imposing a sentence of thirty years, the district court contravened the rule of Apprendi.

      This determination does not end our inquiry, because Apprendi "did not
recognize or create a structural error that would require per se reversal." United States
v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000). We have held that in light of Apprendi,
"[D]rug quantity must often be treated as an element of the offense under § 841."
United States v. Sheppard, 219 F.3d 766, 767 (8th Cir. 2000). Certainly this is such a
case. However, the Supreme Court has held that if a trial court errs by omitting an
element of the offense from its charge to the jury, instead deciding the element itself,




                                           -3-
the conviction must still be affirmed if the error was harmless.3 Neder v. United States,
527 U.S. 1, 8-15 (1999). Accordingly, we must affirm the appellants' sentences unless
we find that "the record contains evidence that could rationally lead to a contrary
finding with respect to the omitted evidence." Id. at 19.

      In this case, there was overwhelming evidence that appellants conspired to
produce amphetamine in a quantity sufficient such that appellants' thirty-year sentences
do not exceed the statutory maximum as proscribed by Apprendi.

       It is undisputed that law enforcement officers seized approximately 100 grams
of pseudoephedrine, the main precursor chemical for making methamphetamine, from
the residence of appellants' co-conspirator.4 The prosecution introduced expert
testimony that this quantity of pseudoephedrine could theoretically yield about ninety-
two grams of methamphetamine.5 Appellants' own expert concurred with this yield


      3
           The parties disagree as to the appropriate standard of review. Because we
conclude that the Apprendi error does not warrant reversal under harmless-error
analysis, we need not decide whether the more stringent plain-error standard of review
would apply to this case.
      4
          In addition, authorities found evidence of the purchase of an additional fifty
grams of pseudoephidrine, and subsequent to the seizure of the above chemicals
appellants purchased another 1200 pseudoephedrine tablets.
      5
            While Apprendi shifted the responsibility for determining the quantity of
drugs from the trial court to the jury, it did nothing whatever to disturb the rule that
where there is no seizure of drugs, as in a conspiracy case, the quantity of drugs may
be determined by reference to "the size or capability of any laboratory involved." See
U.S.S.G. § 2D1.1, comment. (n.12). The size or capability of a laboratory may in turn
be based on the quantity of precursor chemicals seized and expert testimony about their
potential conversion to methamphetamine. See United States v. Hunt, 171 F.3d 1192,
1195-96 (8th Cir. 1999).
       Nonetheless, appellants contend that their laboratory was incapable of producing
significant quantities of methamphetamine because they lacked sufficient anhydrous
                                           -4-
estimate. To be sure, the relevant inquiry is not what a theoretical maximum yield
would be, or even what an average methamphetamine cook would produce, but what
appellants themselves could produce. United States v. Cole, 125 F.3d 654, 655 (8th
Cir. 1997). However, appellants' co-conspirator was an experienced cook, the defense
expert conceded that the conspirators' recipe was viable, if crude, and a search by
authorities revealed traces of methamphetamine on laboratory equipment.
       On the basis of this evidence, we think it improbable that any rational jury could
conclude that the "object of the attempt," see United States v. Beshore, 961 F.2d 1380,
1383-84 (8th Cir. 1992), was to produce fewer than fifty grams of methamphetamine,
particularly as appellants were properly charged in the indictment with conspiracy to
manufacture in excess of fifty grams of methamphetamine. See United States v.
Cavender, 228 F.3d 792, 804 (7th Cir. 2000) (finding a potential Apprendi error
harmless because "the indictment charged that the defendants had handled 'multiple
kilograms of mixtures containing cocaine base,' and this was the evidence put before
the jury"). Most importantly, however, we find it inconceivable that any rational jury
could conclude that appellants conspired to produce fewer than five grams of
methamphetamine, given the overwhelming evidence that the conspirators possessed
both the intent and the capability of producing an amount significantly greater than five


ammonia, another precursor chemical. We have previously held that an estimate of a
laboratory's capability based on the quantity of precursor chemicals seized need not be
limited to the yield available from the least abundant precursor chemical. See United
States v. Funk, 985 F.2d 391, 393 (8th Cir. 1993). While that holding was based on
an earlier version of the Sentencing Guidelines, and must now be viewed in light of the
requirement that a defendant not be held liable for any quantity of drugs he "was not
reasonably capable of providing," see U.S.S.G. § 2D1.1, comment. (n. 12), this
requirement does not alter our view that "[e]stimating the appropriate quantity [of
drugs] . . . is a fact-intensive inquiry that should not be constricted by an inflexible rule
as to one relevant factor." Funk, 985 F.2d at 393. The facts in this case demonstrate
that whatever losses the conspirators may have suffered to their initial supply of
anhydrous ammonia, they had no difficulty subsequently obtaining another two tons of
that precursor.
                                             -5-
grams. Inasmuch as a finding that the appellants sought to produce at least five grams
of methamphetamine would subject them to a penalty of up to forty years incarceration
under 21 U.S.C. § 841(b)(1)(B), appellants' actual sentences of thirty years fall well
within the permitted range of sentences. Because no rational jury could have found
appellants guilty of the substantive offense, yet at the same time found that the amount
of methamphetamine the conspiracy sought to produce was less than five grams, we
hold the Apprendi error to be harmless beyond a reasonable doubt. See Nealy, 232
F.3d at 830.

       Having determined that the Apprendi error was harmless, and having considered
and rejected all of appellants' remaining arguments, we affirm the decision of the
district court. See 8th Cir. R. 47B.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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