                                                  [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                      FOR THE ELEVENTH CIRCUIT      U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                          MAY 02, 2001
                                                       THOMAS K. KAHN
                                                            CLERK
                               No. 00-11254

                     D.C. Docket No. 99-00130 CR-S-NE

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

     versus

RICHARD LEE BLAYLOCK, JR.,

                                                  Defendant-Appellant.

                         ______________________

                               No. 00-11255
                         ______________________
                    D. C. Docket No. 99-00130-CR-S-NE

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

     versus

ALEXANDER PETRILLO,
a.k.a. Alexander Pertillo,

                                                  Defendant-Appellant.
                     Appeals from the United States District Court
                        for the Northern District of Alabama

                                      (May 2, 2001)

Before WILSON and COX, Circuit Judges, and RYSKAMP*, District Judge.

RYSKAMP, District Judge:

       In these consolidated appeals, Appellants, Alexander Petrillo (“Petrillo”) and

Richard L. Blaylock (“Blaylock”), appeal criminal sentences imposed on them by

the United States District Court for the Northern District of Alabama. Appellants

both pled guilty to possession of pseudoephedrine, acetone, and ethyl ether with

the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(d)(1).

The district court sentenced Petrillo to 78 months of imprisonment and a $4,000

fine and Blaylock to 60 months of imprisonment and a $4,000 fine. For the

reasons stated herein, we affirm.




       *Honorable Kenneth L. Ryskamp, U.S. District Judge for the Southern District of
Florida, sitting by designation.




                                              2
                                 I. BACKGROUND

      Because this appeal focuses on the district court’s sentencing of Appellants,

only a summary of the facts material to the sentencing issues is required. In

February 1999, the Madison County Drug Task Force of Huntington, Alabama,

received a tip that drugs were being sold from a location occupied by Appellants.

Based upon that tip and a controlled cocaine purchase at that location, a search

warrant was executed on March 24, 1999. Appellants were present at the time of

the search. Among other contraband, the agents’ search uncovered an outbuilding

in which Appellants were operating a clandestine methamphetamine laboratory.

From this laboratory agents recovered numerous items and chemicals commonly

used in the production of methamphetamine, including lithium batteries, filters,

ethyl ether, glassware, salt, acetone, sulfuric acid, nitric acid, and scales. On

September 16, 1999, Appellants were charged in a two count superseding

indictment with conspiracy to possess with the intent to distribute

methamphetamine (Count I), and possession of precursor chemicals with the intent

to manufacture methamphetamine (Count II).

      The agents submitted to the Drug Enforcement Administration forensic

laboratory photographs of the items found at Appellants’ laboratory, along with

three chemicals found at the scene. The agents submitted 1) a jar containing a


                                           3
liquid and solid substance that had separated1 (exhibit 7); 2) 21.9 grams of

pseudoephedrine in powder form (exhibit 8); and 3) two boxes containing sixty

blue tablets (exhibit 9). The DEA lab determined that exhibit 7 contained 1.6

grams of methamphetamine, that exhibit 8 contained 13.8 grams of pure

pseudoephedrine, and that exhibit 9 contained 14 grams of pure pseudoephedrine.

The DEA chemist, Dr. Jennifer L. Trevor2, determined that, assuming a 100%

theoretical yield, Appellants could have produced up to 25.6 grams of d-

methamphetamine.

        On October 14, 1999, and November 8, 1999, Petrillo and Blaylock,

respectively, pled guilty to Count II of the superceding indictment. On December

16, 1999, and February 29, 2000, the district court held hearings on the sentencing

of Appellants. At sentencing, the government called Dr. Trevor to testify as to the

amount of methamphetamine Appellants could have produced at their clandestine

lab. Dr. Trevor testified that the precursor chemicals and other manufacturing



       1
           The Agents erroneously poured off the liquid portion of this exhibit before submitting
it to the DEA for analysis. Appellants argue that the agents’ error affected the calculation of
drug quantity and, in turn, their respective sentences. The Court finds no evidence or authority
to support this argument, for despite such error other precursors remained upon which drug
quantity could be calculated under the Guidelines.
       2
         Dr. Trevor at the time of sentencing had been employed with the DEA Forensic
Laboratory for two years and had evaluated “hundreds” of precursor chemicals used in the
manufacture of methamphetamine.

                                                4
items found at Appellants’ lab were consistent with the Birch Reduction method of

manufacturing methamphetamine. Dr. Trevor testified that the Birch Reduction

method of production has reported yields in excess of 95%. Dr. Trevor stated that,

assuming a 100% theoretical yield, Appellants’ lab could have produced up to 25.6

grams of methamphetamine. Dr. Trevor admitted that as conditions change from

day to day, a methamphetamine lab will not produce the same actual yield, and

agreed that such variations could vary greatly “from one percent up to 100

percent.” (Sent. Tr. Vol. III at 32). When asked whether she could estimate the

actual yield of Appellants’ lab based upon the information and evidence available

to her, Dr. Trevor stated: “I can only report what the 100 percent theoretical yield

would be.” Id. at 27. The district court pressed Dr. Trevor further on the issue of

actual yield, asking her whether she had any opinion “with a reasonable degree of

certainty . . . as to the yield that these amounts could have produced with the use of

the laboratory equipment [she] saw,” to which Dr. Trevor responded “No, sir.” Id.

at 48-49. The district court then tried to narrow Dr. Trevor’s estimate of actual

yield, asking “Your best estimate, then, is the 95 percent figure?,” but the

government’s expert disagreed, responding “No. I said my only estimation would

be the 100 percent theoretical yield.” Id. at 49. Appellants did not challenge at

sentencing Dr. Trevor’s calculation of the theoretical maximum yield.


                                          5
      Appellants offered the expert testimony of Dr. Boon Loo, Associate

Professor of Chemistry at the University of Alabama at Huntsville. Dr. Loo, who is

not a forensic chemist, testified that he agreed with Dr. Trevor’s analysis of the

precursor chemicals as well as her estimate of 25.6 grams of methamphetamine

assuming a 100% theoretical yield. Dr. Loo also admitted that he could not state

with reasonable scientific certainty what the lab’s actual yield would be. The

district court asked Dr. Loo whether he had “any opinion . . . with a reasonable

degree of certainty based on [his] education, training and experience as to the

likely yield” based upon the equipment and chemicals being used at Appellants’

methamphetamine lab, to which Dr. Loo responded, “No, I cannot tell how much

yield get [sic] from that. (Sent. Tr. Vol. IV at 41). Neither Petrillo nor Blaylock

testified at sentencing, nor did either offer any further evidence to rebut the

government’s estimation of their lab’s likely actual yield.

      The district court accepted Dr. Trevor’s and Dr. Loo’s agreed-upon estimate

that Appellants’ lab could have produced 25.6 grams of methamphetamine based

upon a 100% theoretical yield, and applied the corresponding Base Offense Level

of 26 under the United States Sentencing Guidelines (“the Guidelines”). The




                                           6
district court noted that Appellants failed to present any evidence to rebut the

government’s estimate based upon a 100% theoretical yield.3

                              II. STANDARD OF REVIEW

       Under the Guidelines, this Court reviews a district court’s findings of drug

quantity for the limited purpose of determining whether they are clearly erroneous.

United States v. Newsome, 998 F.2d 1571, 1577 (11th Cir. 1993), cert. denied, 510

U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 698, and cert. denied, ___ U.S. ___, 114

S.Ct. 737, 126 L.Ed.2d 700 (1994); United States v. Davis, 902 F.2d 860, 861

(11th Cir. 1990). The clearly erroneous standard also applies to this Court’s

review of a district court’s estimate of the production capability of a drug

manufacturing operation. Newsome, 998 F.2d at 1577. However, we review de

novo a district court’s legal interpretation of the Guidelines. United States v.

Rodriguez, 992 F.2d 295, 296 (11th Cir. 1993).

                                     III. DISCUSSION

       Appellants contend that the district court committed clear error by 1) using a

100% theoretical yield to estimate that Appellants’s lab could have produced 25.6

grams of methamphetamine, and 2) shifting the burden of proof to defendants to

       3
          It is worth noting that the district court felt comfortable with its estimate of drug
quantity in part because “the actual yield of this laboratory would have to drop below a 40
percent capacity before you would even move outside a base offense level of 26.” (Sent. Tr. Vol.
IV at 52).

                                               7
produce evidence of the proper estimate of drug manufacturing capability under

the Guidelines. The Court finds no merit in Appellants’ arguments, but will

discuss each in turn.

A. The District Court’s Estimate of Appellants’ Lab’s Production Capability

      Appellants do not dispute the fact that they were operating the

methamphetamine laboratory in question, nor do they dispute the quantity of

precursor chemicals they are accused of possessing. Appellants’ sole argument

here is that the district court committed clear error by basing its estimate of drug

quantity upon insufficient evidence. In essence, Appellants object to the district

court’s adoption of Dr. Trevor’s and Dr. Loo’s estimates, both of which were based

upon a 100% theoretical yield.

      Under the Guidelines, where “there is no drug seizure or the amount seized

does not reflect the scale of the offense, the court shall approximate the quantity of

the controlled substance.” USSG §2D1.1, comment. (n.12). In making such an

estimate, the sentencing court may consider as evidence “the size or capability of

any laboratory involved.” Id.; see also USSG § 6A1.3(a) (in resolving disputed

sentencing factors, district court may consider any information with sufficient

indicia of reliability to support its probable accuracy). In the case of

methamphetamine laboratories, this Court has held that the district court may


                                           8
estimate the lab’s capability by calculating the potential methamphetamine yield

based upon seized precursor chemicals. See, e.g., United States v. Carroll, 6 F.3d

735 (11th Cir. 1993), cert. denied, 510 U.S. 1183, 114 S.Ct. 1234, 127 L.Ed.2d

577 (1994). Such estimates of methamphetamine production may be based upon

the most abundant precursor available. United States v. Smith, 240 F.3d 927 (11th

Cir. 2001).

      When estimating the potential methamphetamine yield based upon precursor

chemicals, the district court must make an estimation that is “reasonably fair,

accurate, and conservative, and not merely speculative.” United States v. Zapata,

139 F.3d 1355, 1359 (11th Cir. 1998). The question presented here by Appellants

is whether the district court may base its estimation of drug quantity in a

methamphetamine laboratory case solely upon application of a 100% theoretical

yield to the relevant precursor. This Court has previously answered that question

in the affirmative. In United States v. Ramsdale, 61 F.3d 825, 831 (11th Cir.

1995), the only evidence before the district court concerning the defendants’

methamphetamine lab’s production capabilities was the testimony of a DEA

forensic chemist, who based his estimated yield upon a 100% theoretical yield.

The defendants appealed the district court’s reliance upon this expert estimate, but

this Court held that “[i]n light of the lack of evidence to the contrary, we cannot


                                          9
say that the district court clearly erred in adopting [the government’s estimate].” Id.

It is thus the rule in this circuit that a district court may base its estimate of actual

methamphetamine yield upon an expert’s calculation of the 100% theoretical yield,

at least where there is no evidence presented by the defendants to rebut such an

estimate.

       In sentencing Appellants, the district court was presented with sufficient

evidence upon which to estimate the potential yield of Appellants’

methamphetamine lab. First, the government’s expert, DEA forensic chemist Dr.

Trevor, testified that based upon the equipment and precursors found at the lab,

and the method of manufacture employed by Appellants, her best estimate was that

a 100% theoretical yield would have produced up to 25.6 grams of

methamphetamine. Furthermore, Appellants’ own expert, Dr. Loo, corroborated

Dr. Trevor’s estimate. Appellants thereafter failed to rebut this uncontroverted

testimony by, for example, presenting evidence that their own inexperience as

methamphetamine producers, the weather on the day of production, or their lack of

proper equipment would have produced an actual yield of less than that estimated

by the experts.

       The district court thus had before it the unrebutted expert testimony of two

chemists, both of whom estimated that Appellants’ lab could have produced up to


                                            10
25.6 grams of methamphetamine. Pursuant to this Court’s decision in Ramsdale,

the district court then properly used this evidence to itself estimate the drug

quantity necessary for application of the Guidelines. Because the district court’s

estimate was based upon the evidence in the record, and Appellants failed to rebut

that evidence, this Court cannot find that the district court’s factual findings with

respect to drug quantity were clearly erroneous.

B. The District Court’s Alleged Shifting of the Burden of Proof

      Appellants argue that the district court erroneously shifted the burden of

proof with respect to drug quantity, allegedly requiring Appellants to prove the

appropriate estimate under the Guidelines. This argument has no merit.

      The burden of proof rests with the government to prove drug quantity by a

preponderance of the evidence. See, e.g., United States v. Bogusz, 43 F.3d 82, 87-

88 (3rd Cir. 1994). However, this Court has consistently held that where the

government’s estimation of drug quantity is not rebutted by the defendant, the

district court does not commit clear error by basing its own estimation of drug

quantity solely upon the evidence introduced by the government. See Ramsdale, 61

F.3d at 831; Newsome, 998 F.2d at 1577-78.

      Appellants object to the statement by the district court that “what is lacking

in the record before this court is any evidence, factual evidence, as to those factual


                                          11
matters which this court views as a burden of proof imposed upon defendants and

not the government.” (Sent. Tr. Vol. IV at 51). When read in its context, however,

the district court was clearly stating that the defendants had not met their burden of

coming forward with evidence to rebut the government’s evidence of drug

quantity. Leading up to this statement, the district court recognized that the

government had presented “a good bit of testimony” concerning the proper drug

quantity calculation, but that there was no further evidence concerning, inter alia,

“the presence or absence of specialized equipment, the skill of chemist, the

temperature and humidity of the atmosphere on the date and at the place chemical

reactions were attempted.” Id. The court then noted, as quoted in the passage

objected to by Appellants, that Appellants had failed to present evidence of the

above-listed factors, and most importantly went on to state that such evidence

rested solely with Appellants. The district court went on: “The government has no

knowledge of such matters beyond what it has presented to this court. Such

variable – factual variables lay to the – within the competence and knowledge of

the defendants.” Id. at 51-52.

      It is thus clear from the context of the district court’s statement that it was

not in fact shifting the government’s burden of proving drug quantity to

Appellants, but was rather stating that Appellants had failed to fulfill their burden


                                          12
of coming forward with rebuttal evidence concerning the circumstances of the

operation and relative skill of its operators - such evidence being only in the

possession of Appellants. Thus although the district court mistakenly used the

term “burden of proof,” it was not in any real sense applying any such thing to

Appellants. This Court is thus confident that the burden of proof with respect to

drug quantity was at all times correctly placed upon the government in this case.

                                 IV. CONCLUSION

      For the reasons stated herein, the sentences imposed by the district court

upon Appellants Petrillo and Blaylock under Count II of the superseding

indictment are AFFIRMED.




                                          13
COX, Circuit Judge, dissenting:

       I dissent. I disagree with the majority’s application of United States v.

Ramsdale, 61 F.3d 825 (11th Cir. 1998) to the facts of this case. Ramsdale held

that it is not clear error to conclude that estimates of actual yield based on a one

hundred percent theoretical yield satisfy the government’s burden of establishing

drug quantity by a preponderance when no other evidence relating to actual yield is

presented. Ramsdale, 61 F.3d at 831. The logic of Ramsdale is simply that some

evidence can establish that a fact is more likely true than not when there is no

evidence to the contrary.4

       In this case, the Government’s expert, a chemist with the Drug Enforcement

Administration’s Forensic Laboratory, testified that the theoretical yield

calculation does not and cannot account for the many factors that determine actual

yield. She also testified that there was no feasible methodology for calculating

actual yield from the evidence the laboratory possessed, and that the factors that

make actual yield less than theoretical yield, including the competency of the

operator and the purity of the reagents, could have affected actual yield here. The

       4
        Of course, questionable or inconclusive evidence standing alone does not meet the
preponderance standard. See MCCORMICK’S HANDBOOK OF THE LAW OF EVIDENCE § 339
(Edward W. Cleary et al. eds., 3d ed. 1972). For this reason, United States v. Ramsdale, 61 F.3d
825 (11th Cir. 1995) did not decide that the government carries its burden of persuasion as to
drug quantity merely because the defendant does not come forward with rebuttal evidence. The
government’s own uncontradicted evidence must itself satisfy the preponderance standard.

                                               14
defense expert concurred in this assessment. Further, in response to a question

from the sentencing judge, the Government’s chemist testified that the actual yield

could have been anywhere from one percent to one hundred percent of the

theoretical yield.5 Thus, as ample evidence existed to cast doubt upon the

theoretical yield figure, Ramsdale does not decide this case. Because both of the

chemists who testified refused to express an opinion as to the actual yield, and both

rejected the use of the theoretical yield as a basis for estimating the actual yield, I

cannot conclude that the Government has met its burden of proving drug quantity

by a preponderance of the evidence.




       5
          The Government contends that because facts relating to the capacity of the lab are
peculiarly within the knowledge of the defendants, once evidence of theoretical yield is
presented the burden shifts to the defendant to present rebuttal evidence regarding actual yield.
Neither Ramsdale nor other case law supports this contention. In any event, that it is not always
the case that defendants will be in sole possession of the relevant proof is apparent from the facts
here. The forensic chemist presented by the Government testified that DEA agents discarded
evidence that could have provided the sentencing court with an actual yield figure, at least for
that particular batch.

                                                15
