               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0237n.06
                            Filed: April 4, 2006

                                Nos. 04-6476, 05-5004, 05-5005

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
BECKY H. MCALISTER, GREGORY                     )   EASTERN DISTRICT OF TENNESSEE
GRAHAM, & MICHELLE DIXON,                       )
                                                )
       Defendants-Appellants.                   )
                                                )



       Before: GILMAN and COOK, Circuit Judges; MILLS, District Judge.*


       PER CURIAM. Appellants pleaded guilty to various drug charges and received sentences

corresponding to the amount of pseudoephedrine possessed. The district court sentenced each

defendant under the Federal Sentencing Guidelines’ Drug Equivalency Tables, determining the

methamphetamine equivalents of the quantities of pseudoephedrine. Appellants challenge the

validity of the relevant Guidelines, arguing that the Sentencing Commission’s promulgation of the

pseudoephedrine-to-methamphetamine equivalency ratio ran afoul of the Commission’s

congressional directive. Because Appellants have not shown that the Commission failed to follow

Congress’s mandate, we affirm Appellants’ sentences.


       *
          The Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
Nos. 04-6476; 05-5004; 05-5005
United States v. McAlister, et al.


                                                  I


       Pseudoephedrine is “raw material” used in the manufacture of methamphetamine, and

different manufacturing processes produce different yields. Before the enactment of the Guidelines

at issue in this case, courts relied on expert testimony to estimate pseudoephedrine-to-

methamphetamine yields. Then, in 2000, Congress passed the Methamphetamine Anti-Proliferation

Act, directing the Sentencing Commission to enact a Guidelines amendment structuring the penalty

for illegal possession of pseudoephedrine at a level reflective of “the quantity of [methamphetamine]

that could reasonably have been manufactured” from the pseudoephedrine. Pub. L. No. 106-310,

§ 3651, 114 Stat. 1101, 1238-39. The Act instructed the Sentencing Commission to determine a

conversion ratio for the manufacture of methamphetamine from pseudoephedrine “based on

scientific, law enforcement, and other data the Sentencing Commission consider[ed] appropriate.”

Id. at 1239.


       Acting on this mandate, the Sentencing Commission added tables to sections 2D1.11(d) and

2D1.1 (application note 10) of the Guidelines, establishing a two-to-one ratio of pseudoephedrine

to methamphetamine.      In arriving at its ratio, the Commission used “data from the Drug

Enforcement Agency, Office of Diversion Control, as published on the web site of the Office of

National Drug Control Policy (ONDCP). These data indicate that the actual yield of

methamphetamine from ephedrine and pseudoephedrine is ‘typically in the range of 50 to 75




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United States v. McAlister, et al.


percent.’” Proposed Amendments to the Sentencing Guidelines, 66 Fed. Reg. 7962, 7965 (Jan. 26,

2001).


         After Appellants pleaded guilty to drug charges, the trial court determined their sentences

according to the amount of pseudoephedrine in their possession.1 Appellants objected to the court’s

use of the Sentencing Guidelines, but the district court overruled the objection.


                                                  II


         Appellants challenge the validity of the portion of the Drug Equivalency Table under which

they were sentenced. If in promulgating its ratio for the Drug Equivalency Table the Commission

acted inconsistently with Congress’s plain language, Congress’s language trumps the inconsistent

ratio. United States v. LaBonte, 520 U.S. 751, 757 (1997); see United States v. Butler, 207 F.3d 839,

852 (6th Cir. 2000). Yet we “‘defer to [the Commission’s] interpretation as long as it is “sufficiently

reasonable” in light of the Congressional directive.’” Butler, 207 F.3d at 850 (quoting United States

v. Williams, 53 F.3d 769, 772 (6th Cir. 1995)) (alteration in original).


         Congress directed the Commission to determine the drug equivalency ratio “based on

scientific, law enforcement, and other data the Sentencing Commission consider[ed] appropriate.”



         1
        Appellants McAlister and Dixon pleaded guilty to possession of chemicals and equipment
used in methamphetamine manufacturing. Although Appellant Graham pleaded guilty only to
possession of methamphetamine, the court imposed his sentence based on possession of both
methamphetamine and pseudoephedrine, after converting the pseudoephedrine to methamphetamine
under the Guidelines.
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United States v. McAlister, et al.


Methamphetamine Anti-Proliferation Act § 3651. In Appellants’ view, the Commission based its

ratio on Drug Enforcement Agency conclusions, and “[b]asing a decision on someone else’s

conclusions is all together [sic] different from analyzing the available data and reaching one’s own

conclusion.” Appellants quote the Minutes of the Sentencing Commission: “The Commission based

the proposed penalty structure on the Drug Enforcement Administration’s determination that the

average yield is between 50 and 75 percent.” Minutes of the March 20, 2001 United States

Sentencing Commission Business Meeting, http://www.ussc.gov/MINUTES/3_20_01.htm (last

visited Mar. 13, 2006).


          The Commission’s single characterization of the DEA information—in its meeting minutes,

no less—is not determinative. The Commission elsewhere characterized this information as “data”:

“[The ratio] is based on data from the DEA that the actual yield . . . is in the range of 50 to 75

percent.” U.S. SENTENCING GUIDELINES MANUAL app. C (Supp. at 109-10) (2001) (emphasis

added). Similarly, the Commission’s Notice of Proposed Amendments describes its ratio as based

on data: “This table . . . was developed from data from the Drug Enforcement Agency . . . . These

data indicate that the actual yield of methamphetamine from . . . pseudoephedrine is ‘typically in

the range of 50 to 75 percent.’” 66 Fed. Reg. at 7965 (emphasis added). Further, even if the

Commission relied on a DEA “determination,” such a determination would suffice as data because

the word “data” denotes “[i]nformation, esp. information organized for analysis or used as the basis

for a decision-making.” WEBSTER’S II NEW COLLEGE DICTIONARY 287-88 (2001) (emphasis

added).

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United States v. McAlister, et al.


       Appellants also argue that the “DEA’s . . . determination that a typical yield was in the range

of 50%-75% . . . conflict[ed] with other available DEA sources at the time,” citing DEA testimony

before Congress and before courts. See, e.g., United States v. Eschman, 227 F.3d 886, 889 (7th Cir.

2000) (“Virginia Kleekamp, a chemist with the Drug Enforcement Administration . . . indicated that

an average yield for a clandestine laboratory is from 40% to 60%, but she has noted yields as high

as 85%.”). Variations in the DEA’s—or its employees’—yield estimates, however, do not aid

Appellants’ case. Congress directed the Commission to determine, “based on scientific, law

enforcement, and other data the Sentencing Commission consider[ed] appropriate,” the quantity of

methamphetamine that “could reasonably have been manufactured” from pseudoephedrine.

Methamphetamine Anti-Proliferation Act § 3651 (emphasis added).                 The Commission’s

determination is neither arbitrary and capricious nor otherwise unreasonable. See United States v.

Martin, —F.3d—, 2006 U.S. App. LEXIS 4034, at *36-42 (6th Cir. Feb. 21, 2006) (rejecting an

identical challenge).


       Finally, Appellants contend that the Commission based the ratio only on law enforcement

data and thereby failed to follow Congress’s directive to base the ratio on “scientific, law

enforcement, and other data the Sentencing Commission consider[ed] appropriate.”

Methamphetamine Anti-Proliferation Act § 3651. In United States v. Martin, a panel of this court

employed “the rule of the last antecedent” to hold that the Congressional directive mandated that




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United States v. McAlister, et al.


the Commission base the ratio on, at a minimum, “scientific and law enforcement” data.2 2006 U.S.

App. LEXIS 4034, at *20. Even if we assume, as did the panel in Martin, that the court may “delve

into the Commission’s methodology as a general matter,” id. at *30, Appellants nevertheless fail to

demonstrate that the Commission relied on law enforcement data to the exclusion of scientific data.

Appellants attempt to show that the Commission utilized only law enforcement data by pointing to

the Commission’s statements referencing the DEA report. But, as the Martin panel discussed, “DEA

reports could contain . . . both scientific data . . . as well as law enforcement statistics.” Id. at *33.

As in Martin, “[t]he record before us includes no testimony and no further documentation regarding

the Commission’s method of selecting the new 50% conversion ratio,” and this record “do[es] not

suffice to demonstrate that the Commission failed to base its ratio on both scientific and law

enforcement data.” Id. at *32.


                                                   III


        Because Appellants fail to demonstrate that the Commission deviated from the congressional

mandate, we discern no error in the district court’s sentencing Appellants pursuant to the Drug

Equivalency Tables. We affirm.




        2
         The panel held that the restrictive clause “the Sentencing Commission considers
appropriate” modifies only “other” data and not “scientific” or “law enforcement” data. The panel
did not address the fact that all three adjectival terms modify the same noun, “data,” so that one
could conclude that the restrictive clause modifies the noun “data,” which is in turn distributed
across the three adjectival terms.
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United States v. McAlister, et al.


        RONALD LEE GILMAN, Circuit Judge. I concur in the result reached by the majority

opinion and, in large part, with its reasoning. Nevertheless, I write separately because I disagree

with the comment set forth in footnote 2 regarding United States v. Martin, 438 F.3d 621 (6th Cir.

2006). As the author of the Martin opinion, I believe that the panel in that case properly applied the

rule of the last antecedent to the statute at issue.




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