                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 21 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 00-3125
v.
                                                    (District of Kansas)
                                             (D.C. No. 99-CR-40002-02-SAC)
RAED MOHAMMAD AL-
BATAINEH,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The court

therefore honors the parties’ requests and orders the case submitted without oral

argument.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After Raed Mohammad Al-Bataineh pleaded guilty to possession of

pseudoephedrine in violation of 21 U.S.C. § 841(d)(2), the district court

sentenced him to a term of imprisonment of twenty-eight months. On appeal, Al-

Bataineh asserts that the district court erred in refusing to reduce his offense level

pursuant to United States Sentencing Guidelines § 2D1.11(b)(2). This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2)

and affirms.

      Al-Bataineh was stopped by state law enforcement officials while driving

on Interstate-70 through Shawnee County, Kansas. Al-Bataineh agreed to a

request by the officers to search the vehicle. Inside the trunk, officers found an

exceedingly large number of bottles containing pseudoephedrine tablets; each

bottle had been opened and repackaged so that it contained at least twice, and

possibly as many as five times, the number of tablets indicated on the label. In

total, officers found 321,275 tablets of pseudoephedrine in the vehicle, weighing

approximately 19.3 kilograms.

      Al-Bataineh was arrested following the stop and agreed to submit to an

interview with an agent of the Drug Enforcement Agency. During the interview,

Al-Bataineh admitted that he was “hauling” the pseudoephedrine from Ohio to

Nevada and that he was to be paid $1200 for doing so. Apparently, Al-Bataineh

had sold his business less than two months prior to the acts constituting the


                                          -2-
instant offense. He utilized part of the profits from that sale to finance the

purchase of the pseudoephedrine.

      After local Kansas authorities declined to file charges, Al-Bataineh was

released from custody. Approximately two weeks later, Al-Bataineh was again

arrested for committing a similar offense in Oklahoma City, Oklahoma.

      Al-Bataineh was eventually charged in United States District Court for the

District of Kansas with possessing “approximately 19 kilograms of

pseudoephedrine, a list I chemical, having reasonable cause to believe that the

listed chemical will be used to manufacture a controlled substance.” Al-Bataineh

eventually entered into a plea agreement with the government wherein he agreed

to plead guilty to the information and waive grand jury indictment. In return, the

government agreed to file no further charges for the actions at issue in the

information, to recommend a three-level downward adjustment for acceptance of

responsibility, and to file a motion for downward departure pursuant to U.S.S.G. §

5K1.1 to reflect Al-Bataineh’s substantial assistance to the government.

      At the time of his plea, Al-Bataineh submitted the following statement

detailing his involvement in the offense:

      On December 18, 1998, I was driving through the state of Kansas
      with Mohammed Ahmad-Abu-Hardan. We were in a car which had
      within it a lot of repackaged cold medicine (Minithins, mainly).

      While I do not have a lot of knowledge about how drugs are
      manufactured, based on the fact that the seals on the bottles had been

                                            -3-
      broken, and five bottles worth of pills had been transferred to one
      bottle, there was reasonable cause for me to believe that the drugs in
      my car would eventually be used to help manufacture a controlled
      substance.

      I knew that the Minithins were in my car, and I knew we were taking
      them to California to sell them for a profit. I am very sorry to have
      violated the drug laws of the United States.

      After the district court accepted Al-Bataineh’s guilty plea, the United States

Probation Office prepared a presentence investigation report (“PSR”). The PSR

concluded that Al-Bataineh had an offense level of 25 and a criminal history

category of I, resulting in a sentencing range of 57 to 71 months. The PSR

arrived at Al-Bataineh’s offense level by reference to the chemical quantity table

set out in U.S.S.G. § 2D1.11(d). Because Al-Bataineh possessed between six and

twenty kilograms of pseudoephedrine, he started with an offense level of 28. See

U.S.S.G. § 2D1.11(d)(2). The PSR recommended that Al-Bataineh receive a

three-level reduction in his offense level pursuant to U.S.S.G. § 3E1.1(a) and (b),

resulting in an ultimate offense level of 25.

      Al-Bataineh objected to the PSR, asserting that his offense level should be

decreased by three additional levels pursuant to U.S.S.G. § 2D1.11(b)(2). That

section of the Guidelines provides as follows: “If the defendant is convicted of

violating . . . § 841(d)(2) . . . , decrease by 3 levels, unless the defendant knew or

believed that the listed chemical was to be used to manufacture a controlled



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substance unlawfully.” 1 In particular, Al-Bataineh asserted that although he

clearly violated § 841(d)(2) because he had reason to believe pseudoephedrine

would be used to manufacture a controlled substance, none of the information in

the PSR demonstrated he was actually aware the pseudoephedrine would be used

to manufacture illegal drugs.

      In denying Al-Bataineh’s objection, the district court found as follows:

             As the time of his plea, the defendant admitted that the broken
      seals on the bottles and the packaging of five bottles worth of pills
      into one bottle gave him reasonable cause to believe the
      pseudoephedrine would be used to manufacture a controlled
      substance. The offense conduct set out in the PSR includes more
      incriminating and culpable circumstances than those admitted by the
      defendant. The defendant sold his business in October of 1998 and
      used part of the proceeds to pay for the pseudoephedrine involved in
      the instant offense. The defendant was operating a vehicle on I-70 in
      Shawnee County, Kansas, when law enforcement officers stopped
      him on December 18, 1998. Officers searched the trunk of the
      vehicle and found 11 cases and four additional boxes of pills called
      “Mini-Pseudos.” The bottles in those cases had been opened and
      more pills were added to each bottle. Officers found approximately
      321,275 pills of pseudoephedrine. During his post-arrest interview,


      1
       The purpose behind this provision is elucidated as follows in the
commentary to U.S.S.G. § 2D1.11:
      Convictions under . . . § 841(d)(2) . . . do not require that the
      defendant have knowledge or an actual belief that the listed chemical
      was to be used to manufacture a controlled substance unlawfully.
      Where the defendant possessed or distributed the listed chemical
      without such knowledge or belief, a 3-level reduction is provided to
      reflect that the defendant is less culpable than one who possessed or
      distributed listed chemicals knowing or believing that they would be
      used to manufacture a controlled substance unlawfully.
U.S. Sentencing Guidelines Manuel § 2D1.11, cmt. n.7.

                                        -5-
      the defendant admitted he was hauling the pseudoephedrine from
      Ohio to Las Vegas, Nevada and that he was being paid $1,200 for his
      services. Just over three weeks after his arrest for the instant
      offense, the defendant was arrested in Oklahoma for possession of
      368 bottles containing over 37,000 pills of pseudoephedrine.
             From these circumstances, specifically, the defendant’s use of
      his own money to purchase the pseudoephedrine, the sheer volume of
      pills being transported, the defendant’s admission that he was being
      paid to transport them to California, and his commission of the very
      same criminal act less than a month after his arrest for the instant
      offense, the court finds that the defendant knew or believed that the
      pseudoephedrine was to be used to manufacture a controlled
      substance.

Dist. Ct. Ruling on Objection to Presentence Report, at 3-4. Even though the

district court found that Al-Bataineh was not entitled to the benefit of

§ 2D1.11(b)(2), it did grant the government’s § 5K1.1 motion. Pursuant to that

motion, the district court sentenced Al-Bataineh to twenty-eight months

imprisonment, a sentence which is approximately one-half of the low end of the

applicable sentencing range absent Al-Bataineh’s requested reduction pursuant to

§ 2D1.11(b)(2).

      On appeal, Al-Bataineh asserts both that the district court’s findings in

response to his objection are inadequate and that the record does not support the

district court’s conclusion that he “knew or believed” the pseudoephedrine would

be used to manufacture illegal drugs. Upon review of the record, this court

concludes that both contentions are without merit.




                                         -6-
      This court “review[s] the district court’s legal interpretation of the

guidelines de novo, and review[s] its findings of fact for clear error, giving due

deference to the district court’s application of the guidelines to the facts.” United

States v. Burridge, 191 F.3d 1297, 1301 (10th Cir. 1999) (quotations omitted).

“We will not disturb the [district] court’s factual findings unless they are without

support in the record, or unless after reviewing all the evidence we are left with

the definite and firm conviction that a mistake has been made.” Id. (quotation

omitted).

      Upon review of the district court’s “Ruling on Objection to Presentence

Report,” this court concludes that Al-Bataineh’s assertion that the district court

did not make sufficient findings is without merit. In response to the objection,

the district court began by noting that Al-Bataineh would be entitled to the three-

level reduction pursuant to 2D1.11(b)(2) “unless the court finds that the defendant

had actual knowledge or belief that the listed chemical was to be used to

manufacture a controlled substance.” Dist. Ct. Ruling on Objection to

Presentence Report, at 2. The district court further noted that the government

operated under the burden of proving that Al-Bataineh had the requisite actual

knowledge. See id. at 2-3. Nevertheless, the district court noted that Al-Bataineh

had not objected to any of the evidence set forth in the PSR and had not come

forward with any additional evidence relevant to the inquiry of actual knowledge.


                                          -7-
See id. at 3. Accordingly, the district court pulled together all of the uncontested

evidence in the PSR; set forth that evidence, as detailed above, in coherent and

thoughtful manner; and found, in light of that uncontested evidence, that Al-

Bataineh knew or believed that the pseudoephedrine would be used to

manufacture illegal drugs. See id. at 4-5. In so doing, the district court clearly

complied with the obligation to make findings as to all “controverted matters” as

required by Fed. R. Crim. P. 32(c)(1).

      We further conclude that the district court did not commit clear error in

finding, as a matter of fact, that Al-Bataineh knew or believed that the

pseudoephedrine would be used to manufacture illegal drugs. Al-Bataineh’s

primary thrust on appeal in this regard is that there is no direct evidence of intent

in the record. As this court has previously noted, however, “[i]ntent and

knowledge . . . can be inferred from surrounding circumstances and is rarely

capable of direct proof.” United States v. Leopard, 936 F.2d 1138, 1141 (10th

Cir. 1991) (quotations and citations omitted). The surrounding circumstances in

this case amply support the district court’s finding of intent. In particular, it must

be noted that Al-Bataineh invested a substantial sum of his own money to

purchase the pseudoephedrine and was expecting a substantial profit upon

delivery of the pseudoephedrine to Nevada. Furthermore, the number of

pseudoephedrine tablets at issue in this case is substantial: 321,275 tablets


                                          -8-
weighing more than nineteen kilograms. Al-Bataineh was aware that each bottle

of tablets had been opened and packed with a quantity of pills far in excess of the

contents listed on the label. Finally, Al-Bataineh committed the very same type

of criminal act less than a month after his arrest for the instant offense. Taken

together, these circumstances more than adequately support the district court’s

finding by a preponderance of the evidence that Al-Bataineh knew or believed the

pseudoephedrine would be used to manufacture illegal drugs.

      In sum, the district court’s reliance on the uncontested facts in the PSR to

resolve the only contested matter, Al-Bataineh’s intent, was in accord with Fed.

R. Crim. P. 32(c)(1). In addition, the district court’s finding that Al-Bataineh

knew or believed the pseudoephedrine would be used to manufacture illegal drugs

is supported by the uncontested circumstantial evidence set forth in the PSR.

Accordingly, the sentence imposed by the United States District Court for the

District of Kansas is hereby AFFIRMED.

                                               ENTERED FOR THE COURT:



                                               Michael R. Murphy
                                               Circuit Judge




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