                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-5-2002

USA v. Ogrod
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3807




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                                                                               NOT PRECEDENTIAL

                             UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT


                                             No. 01-3807


                                  UNITED STATES OF AMERICA

                                                   v.

                            RANDY OGROD, a/k/a RANDY PERSONS

                                                                Randy Ogrod, Appellant
                                            ____________

                   APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                              (D.C. Crim Civ. No. 98-cr-00464 )
                        District Judge: Honorable Mary A. McLaughlin
                                        ____________

                           Submitted Under Third Circuit L.A.R. 34.1(a)
                                       November 1, 2002
                   Before: NYGAARD and WEIS, Circuit Judges, and IRENAS,*
                                                                                           District Judge
.
                                       Filed November 5, 2002

                                          _______________

                                              OPINION


______________________

* The Honorable Joseph E. Irenas, United States District Judge for the District of New Jersey, sitting
by designation.
WEIS, Circuit Judge.

                                                   1
                Defendant pleaded guilty to one count of conspiracy to distribute phenyl-2-

propanone in violation of 21 U.S.C. § 846. Pursuant to the government’s motion under

Sentencing Guideline 5K1.1, the District Court departed downward five levels and

sentenced defendant to 70-months imprisonment, followed by four years of supervised

release.

                On appeal, defendant pro se asserted that:

                1. The evidence at sentencing was insufficient to sustain the conviction

because the government did not establish the weight of the P2P beyond a reasonable doubt;

                2. The sentence should have been based on 79 grams, the only amount that

the government proved by laboratory analysis;

                3. The government destroyed the substance and, thus, deprived the defendant

of the opportunity to have it analyzed; and,

                4. Under Apprendi v. New Jersey, 530 U.S. 466, 475 (2000), the amount of

the drug was a question for the jury.

                At the defendant’s request, counsel was appointed to represent him on appeal.

She filed a supplemental brief that raises the following issues:

                1. Whether the defendant’s guilty plea was knowingly entered when the trial

court failed to inquire during the colloquy whether defendant understood the consequences

of his stipulation that the P2P was distributed for the purposes of manufacturing

methamphetamine, which would result in a six level increase in the offense level;

                2. Whether there was an adequate factual basis for the court to find that the

                                                      2
P2P was distributed for the purpose of manufacturing methamphetamine; and,

                3. Whether the District Court erred in calculating the offense level by using

the drug equivalency for P2P “when possessed for the purpose of manufacturing

methamphetamine” when the parties had stipulated that the drug was distributed for the

purpose of manufacturing methamphetamine.

                During the plea colloquy, the district judge announced that “the parties had

stipulated that approximately one liter of P2P was distributed for the purpose of

manufacturing methamphetamine in furtherance of the criminal activity jointly undertaken

by the defendant and his co-conspirator, that this amount was reasonably foreseeable to the

defendant in connection with the conspiracy, and that the defendant’s Guideline range

should be calculated on that amount under Guideline section 1B1.3, which results in a base

offense level of 28 months under Guideline section 2D1.1.”

                When directly questioned on whether those were terms of his plea

agreement, defendant responded “yes.” He also affirmed that he had signed the plea

agreement which contained that stipulation in writing.




                                                    3
                 The court also questioned the defendant’s counsel, inquiring whether he was

satisfied that there was a factual basis for the plea, and that defendant had a full

understanding of the nature of the charges and the maximum penalty. Counsel responded,

“Yes, Your Honor.”

                 Before sentencing occurred, defendant personally wrote to the Court asking

that he be relieved of his stipulation as to the amount of P2P involved. The United States

Attorney responded that the amount in the bottle that the defendant had in his possession

was approximately one liter, and that two samples totaling 80 milliliters were sent to the

lab for testing. The remainder was destroyed.

                 At sentencing, the district judge decided that because the government had not

actually weighed the total amount of the P2P, the offense level would be reduced from 28

to 26. After an additional reduction of one level, the District Court departed downward five

levels pursuant to the 5K1.1 motion, and sentenced the defendant at the bottom of that

level.

                 We have carefully reviewed each of the alleged errors and find them to lack

merit. We will comment on the one point that counsel has urged most strongly on appeal,

that the District Court did not advise the defendant of the difference in Guidelines for

sentencing purposes between violations of simple possession of P2P as contrasted with the

more severe penalties for possession with intent to manufacture methamphetamine.




                                                      4
                 Because this issue was not raised in the trial court, we review for plain error.

                 The plea agreement was negotiated by trial counsel for defendant and the

United States Attorney’s office. The facts stipulated to by the defendant established the

basis for the more serious offense of distribution with the purpose of manufacturing

methamphetamine. The government contends that it was prepared to present evidence to

establish that fact, but did not do so in view of the stipulation.

                 We note that the district judge did adequately advise the defendant of the

potential sentence when he pleaded guilty – a sentence far in excess of that he actually

received. In view of the stipulation, it was not necessary for the sentencing judge to explain

that, in the absence of intent to distribute for manufacturing purposes, the Guidelines

provided a lesser sentence.

                 Essentially, what the defendant is raising at this point is ineffective assistance

of counsel in stipulating that critical factual issue and failing to challenge the more serious

aspect of P2P possession. This point must be raised in a motion under 28 U.S.C. § 2255.

We do not foreclose such action on part of the defendant.

                 Accordingly, the judgment of the District Court will be affirmed.




                                                       5
______________________________

TO THE CLERK:


            Please file the foregoing Opinion.




                                             /s/ Joseph F. Weis, Jr.
                                             United States Circuit Judge




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