Filed: Nov. 05, 2002
Latest Update: Mar. 02, 2020
Summary: 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of the United 2002 Decisions States Court of Appeals for the Third Circuit 11-5-2002 USA v. Ogrod Precedential or Non-Precedential: Non-Precedential Docket No. 01-3807 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "USA v. Ogrod" (2002). 2002 Decisions. Paper 700. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/700 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: 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of the United 2002 Decisions States Court of Appeals for the Third Circuit 11-5-2002 USA v. Ogrod Precedential or Non-Precedential: Non-Precedential Docket No. 01-3807 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "USA v. Ogrod" (2002). 2002 Decisions. Paper 700. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/700 This decision is brought to you for free and open access by the Opinions of the United States Co..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"USA v. Ogrod" (2002). 2002 Decisions. Paper 700.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/700
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL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
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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
6
