UNITED STATES COURT OF APPEALS for the Fifth Circuit

_____________________________________

No. 91-1434 ____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROY LEE LEED,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court for the Northern District of Texas ______________________________________________________ (January 4, 1993)

Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

Roy Lee Leed (Leed) appeals his conviction and sentence on

charges of possession of a listed chemical with intent to

manufacture a controlled substance and conspiracy to commit the

same offense. Leed argues primarily that the government produced

insufficient evidence to support his conviction. He also argues

that the district court erred when it used U.S.S.G. § 2D1.1 in

calculating the appropriate sentencing guideline range. We find

sufficient evidence to support the jury's verdict and find that the

district court correctly applied the sentencing guidelines. We

therefore affirm Leed's conviction and sentence. I.

In August 1990, a confidential informant, Jerry Pierce

(Pierce), informed the DEA that John Watkins (Watkins) wished to

purchase a 110-pound keg of phenylacetic acid, a federally

regulated chemical used in the manufacture of amphetamine and

methamphetamine. Pierce then worked under DEA supervision in

attempting to negotiate a sale of the chemical to Watkins. Pierce

permitted DEA agents to record telephone negotiations he had with

Watkins for this purpose. Agents identified John Watkins as the

subscriber of the telephone number Pierce called.

On August 17, DEA agents recorded several conversations that

failed to produce a definitive agreement. In the first telephone

call, Watkins stated that he was interested in making a deal, but

that he needed an hour to obtain assistance. During this

conversation, Watkins agreed to provide an "eight ball" or a

"quarter" of "powder" as a portion of the purchase price. When

Pierce telephoned Watkins about one hour later, Watkins stated that

he would be ready to make a deal as soon as he heard from "her."

Two hours later, Watkins still had been unable to reach his

contact. In a later conversation that day, Watkins arranged to go

forward with the purchase on Monday, August 20, 1990.

During a conversation on August 20, Watkins expressed relief

when Pierce stated that he could deliver a 110-pound keg of the

chemical rather than a 55-gallon barrel. During a subsequent

conversation in which Pierce and Watkins discussed a meeting place,

Watkins stated his concern about some unusual police activity in a

2 parking lot near his house. After Watkins tested his telephone

lines and was satisfied that he was not under surveillance, he

agreed to proceed with the deal. In an unrecorded telephone call,

Watkins and Pierce agreed that the transaction would take place in

the parking lot of a boot store. Watkins agreed to pay $5,500 and

to provide "powder" in exchange for the 110-pound keg. Watkins

told Pierce to expect an individual in a white-over-gold Cadillac

and to wait for the individual to give the signal by wiping his

brow. Pierce expected that Watkins would drive the Cadillac.

Later, on August 20, Pierce and DEA agent William Bryant

(Bryant) drove to the meeting place in a white cargo van containing

the unmarked keg of phenylacetic acid. The phenylacetic acid had

a strong, distinctive odor, so strong that it could be smelled

outside of the cargo van. The driver of the white-over-gold

Cadillac, later identified as Leed, then drove near the cargo van,

looked around the parking lot, and wiped his brow with his hand.

Pierce and Bryant wiped their brows in reply. Leed exited the

Cadillac, approached the cargo van, and handed a plastic grocery

bag to Bryant. Leed stated that the bag contained $5,500 and asked

Bryant if he wanted to load the phenylacetic acid into the

Cadillac. Bryant asked Leed to get inside of the van while he

counted the money.

Inside the grocery bag, Bryant found a number of cracker

packages and a package wrapped in white freezer paper. Leed stated

that he had wrapped the money in the freezer paper to make the

package look like a sandwich. Bryant asked Leed if he had brought

3 any powder with him, but Leed stated that they didn't have any

powder "at that time." Also, when Bryant asked Leed if his people

would be interested in making future purchases, Leed replied that

"I was just sent here to pick up the package, but I'm sure my

people would want to buy all they could get their hands on." Leed

provided Bryant with a knife to cut the package open, and Bryant

counted the money. After Bryant, Pierce, and Leed loaded the

phenylacetic acid into the trunk of the Cadillac, Leed was

arrested.

DEA agents searched the Cadillac and found a notebook in a

briefcase. The notebook contained the name John and the same phone

number that Pierce had used to make telephone calls to John

Watkins. The agents also found a spiral notebook in the briefcase

containing a list of things to do, one of which was to call "Pappy"

at Watkins' telephone number.

In an attempt to also arrest Watkins, Pierce telephoned

Watkins and informed him that no one had come to pick up the

phenylacetic acid. Watkins told Pierce that he would come himself.

When Watkins arrived, he drove alongside the cargo van and stated

that he was hunting for a lost sheep. Bryant stated that he was

tired of sitting on the "drum." Watkins complained that police

were all over his neighborhood and suggested that they relocate to

a nearby K-Mart store. Bryant insisted that they complete the

transaction in the parking lot. Bryant asked Watkins if he had any

powder, but Watkins said no. Watkins was then arrested.

4 At the time of his arrest, Watkins possessed a slip of paper

reading "73 cad. four door gold-over white" on one side and "Jerry

Pierce, white van, BLM30" on the other side. Agents also found a

packet containing 1.72 grams of amphetamine with a potency of 93

percent. A strength of 93 percent indicates that the amphetamine

came directly from a laboratory.

A grand jury indicted Leed on one count of possession of

phenylacetic acid, a listed chemical, with intent to manufacture

amphetamine, in violation of

(d)(1), and on one

count of conspiring to commit the same offense, in violation of

. Following trial, the jury found Leed guilty on both

counts. Watkins was charged solely with conspiracy, and in a joint

trial with Leed, he was found guilty. Leed's motion for judgment

of acquittal was denied.

The district court sentenced Leed under U.S.S.G. § 2D1.1 to

imprisonment for consecutive terms of 120 months on the conspiracy

count and 60 months on the substantive count, three years

supervised release, and $100 in special assessments. Leed timely

appealed.

II.

A.

Leed contends first that the district court erred in denying

his motion for judgment of acquittal, and argues that the evidence

is insufficient to support his conviction on either the conspiracy

or the substantive offense. To establish a conspiracy under

, the government must prove beyond a reasonable doubt

5 (1) an agreement between two or more persons to violate the

narcotics laws, (2) that each alleged conspirator knew of the

conspiracy and intended to join it, and (3) that each alleged

conspirator did participate in the conspiracy. United States v.

Carter,

(5th Cir. 1992), cert. denied,

(1992). Although presence at the scene and close

association with those involved in a conspiracy are insufficient

factors alone, they are nevertheless relevant factors for the jury.

United States v. Simmons,

(5th Cir. 1990). To

establish a violation of § 841(d)(1), the government was required

to prove that Leed knowingly possessed the listed chemical with the

intent to manufacture amphetamine.

Leed contends first that the government produced insufficient

evidence that he had an agreement with Watkins or others to violate

the narcotics laws. He argues that the government's failure to

produce this evidence is fatal to his conviction on the conspiracy

count.

Leed also contends that the record evidence is insufficient to

support either a finding that he knowingly possessed phenylacetic

acid or a finding that he had any intent to manufacture

amphetamine. We agree with Leed that his conviction cannot stand

on either count unless the government's proof is sufficient to

support both of these implicit findings.

We review the district court's denial of a motion for

judgment of acquittal de novo. United States v. Sanchez,

(5th Cir. 1992), cert. denied,

(1992). In

6 deciding whether the evidence is sufficient to support Leed's

convictions,

it is not necessary that the evidence exclude every reasonable hypothesis of innocence; we review the evidence in the light most favorable to the government, drawing all reasonable inferences in support of the verdict, and will affirm the conviction if a rational trier of fact could have found that the evidence established each essential element of the offense beyond a reasonable doubt.

United States v. Stone,

(5th Cir. 1992).

B.

We first turn to Leed's argument that the government failed to

produce sufficient evidence that he had an agreement with Watkins

to violate the narcotics laws. We find no merit to this argument.

Ample evidence demonstrates an agreement between Leed and Watkins

to procure the phenylacetic acid. First, Leed obviously obtained

all the details of the transaction from Watkins. Leed knew the

location of the proposed exchange; he knew which vehicle to look

for; he knew the signal; and he knew the purchase price.

Second, agents found evidence in the Cadillac that

affirmatively linked Leed to Watkins. This included a notebook in

a briefcase containing the name "John" and Watkins' phone number.

The agents also found a spiral notebook in the briefcase. One of

the things to do listed in the notebook was to call "Pappy" at

Watkins' phone number.

Finally, Leed also knew that the transaction was a covert

operation. He looked around the parking lot before identifying

himself with the pre-arranged signal. He also wrapped the $5,500

cash in freezer paper to disguise its appearance.

7 The evidence strongly supports the jury's implicit finding

that Leed agreed to assist Watkins in purchasing a listed chemical

for an illicit purpose.

C.

After a careful review of the record, we also conclude that

the record evidence supports the jury's implicit finding beyond a

reasonable doubt that Leed knowingly possessed the phenylacetic

acid with the intent to manufacture amphetamine.

Leed asserts first that during his meeting with Bryant and

Pierce in the parking lot, no one mentioned anything about the

contents of the keg. He argues that the keg was not labeled and

that it resembled a barrel containing pool chemicals. Leed points

also to the lack of evidence that he had any training which would

have enabled him to recognize the pungent odor of phenylacetic

acid.

Ample evidence supports the finding that Leed knew the

contents of the keg. As indicated above, Leed knew that this was

a covert operation. When he arrived in the parking lot to pick up

the chemical, Leed carefully looked around and signalled his

identity by wiping his brow. He personally wrapped the $5,500

purchase price in freezer paper so that it would look like a

sandwich. Leed's secret signals and his delivery of cash disguised

as a sandwich in a lunch bag belie any intent by him to purchase

pool chemicals. Also, Leed made no remark about the overpowering

odor of the phenylacetic acid when he entered the van with Bryant

and Pierce. Then, when asked about "powder," Leed responded that

8 they had none at that time. Leed's behavior in the parking lot,

his delivery of $5,500 cash to Pierre and the agents, and his

response to questions about "powder," support an inference that he

knew that the keg contained phenylacetic acid.

Leed's final sufficiency argument is his strongest. He

challenges the sufficiency of the evidence to support a finding

that he had any intent to manufacture amphetamine. Leed argues

that this Court has required some evidence of a laboratory or

specific statements by the defendant to show intent to manufacture

amphetamine. See, e.g., United States v. Stone,

(5th

Cir. 1992). Citing United States v. Berkery,

(2nd Cir. 1990), he argues that one instance of possession of

phenylacetic acid is insufficient to support an inference that he

specifically intended to manufacture amphetamine. He reads the

Second Circuit's opinion in Berkery as holding that possession of

a large quantity of phenyl-2-propanone (P2P) leads just as

naturally to the conclusion that the defendants intended to

distribute that chemical, rather than use it in a manufacturing

scheme. See

Our analysis of this record leads us to conclude that

sufficient evidence exists to support an inference that Leed knew

of and intended to further the goals of a manufacturing operation.

As we discussed above, Leed's conduct demonstrates his knowledge

that the keg of phenylacetic acid was destined for some illegal

use. The covert nature of the meeting to exchange the purchase

price for the chemicals and the amount of the purchase price

9 adequately demonstrate Leed's knowledge of the illegality of the

transaction.

As to the purpose of the transaction, Leed's co-conspirator,

Watkins, led Pierce to believe that he was planning to use the acid

to manufacture amphetamine; Watkins originally agreed to exchange

"powder" in addition to cash for the phenylacetic acid. Indeed,

Leed himself implied that their inability to produce "powder" in

exchange for the phenylacetic acid was temporary; he told Pierce

and agent Bryant that they had no powder "at that time." Also when

Bryant asked him whether his people would be interested in making

future purchases, Leed replied that "I was just sent here to pick

up the package, but I'm sure my people would want to buy all they

could get their hands on." His certainty about his accomplices'

plans supports a jury inference that he knew the details of the

operation and that he was more than an errand boy. His statements

also support an inference that he and his accomplices were involved

in a pattern of purchasing activity, and that the purpose in

purchasing the chemical was to manufacture amphetamine.

Also, when Leed's co-conspirator Watkins was arrested, he

possessed a small quantity of almost pure amphetamine. The jury

was entitled to conclude that Watkins obtained such uncut

amphetamine directly from a laboratory.

Despite this affirmative evidence indicating that Leed knew

the acid was to be used to manufacture amphetamine, Leed presented

no contradictory evidence that he and Watson intended to use the

acid for any other purpose. Leed did not produce evidence that he

10 and Watson acted as brokers of phenylacetic acid or that such a

brokerage business is one that rational individuals consider

profitable enough to offset the obvious risks. To obtain a

conviction, the government need not exclude every hypothesis of

innocence to withstand an attack on sufficiency grounds. The jury

was entitled to conclude that the most likely use Leed and Watkins

planned for this chemical was to manufacture amphetamine. "What a

jury is permitted to infer from the evidence in a particular case

is governed by a rule of reason, and juries may properly use their

common sense in evaluating that evidence." United States v.

Villasenor,

(5th Cir. 1990) (quoting United

States v. Henry,

(5th Cir. 1988). We find that

the evidence supports an inference that Leed intended to possess

the phenylacetic acid to further the manufacture of amphetamine.

For the reasons stated above, we conclude that the evidence is

sufficient to support Leed's conviction.

III.

Leed argues next that the district court incorrectly applied

the Sentencing Guidelines.1 We review challenges to the district

court's application of the Sentencing Guidelines de novo. United

States v. Shell,

(5th Cir. 1992).

Leed argues that the district court erred when it applied

U.S.S.G. § 2D1.1 in calculating his guideline range and determining

his sentence. We disagree. Section 2D1.1 has the following

1 All citations to the Guidelines are to the 1990 Guidelines Manual, in effect when Leed was sentenced in April 1991.

11 heading: "Unlawful Manufacturing, Importing, Exporting, or

Trafficking (Including Possession with Intent to Commit These

Offenses)." We agree with the Ninth Circuit in United States v.

Cook,

(9th Cir. 1991) that this guideline

specifically applies to the offenses for which Leed was convicted.

In other words, the parenthetical in the heading modifies all of

the activities that precede it, including manufacturing. See

United States v. Voss,

(10th Cir. 1992) (Abel,

J., dissenting). As Judge Abel observed in his Voss dissent,

"'[p]ossession with [i]ntent' must also refer to possession of

chemicals with intent to manufacture."

Any doubt about the

application of § 2D1.1 to Mr. Leed's § 84l(d)(1) conviction is

dispelled by the statutory index to the Guidelines. That index

matches a conviction for § 841(d) with § 2D1.1. See also United

States v. Kingston,

(6th Cir. 1990), cert.

denied,

(1991) (applying § 2D1.1 to § 841(d)

offenses in light of federal effort to block drug distribution

efforts at the earliest possible moment).

Relying on the panel majority in United States v. Voss,

, Leed makes two arguments in an attempt to avoid

the application of U.S.S.G. § 2D1.1. We are unconvinced. Leed

argues first that § 2D1.1 does not apply because the statutory

index cross-referencing § 841(d) to § 2D1.1 was written before the

current version of § 841(d) was enacted. But when the current

version of § 841(d) was enacted, the cross-reference to § 2D1.1 in

the statutory index remained in place. The Sentencing Commission

12 certainly knew how to change the statutory index if it wished to do

so.

Leed also points out that recent amendments to the Guidelines,

effective November 1991, have added § 2D1.11 to expressly address

possession of listed chemicals. He argues that this amendment

demonstrates that the Commission never intended § 2D1.1 to apply to

violations of § 841(d). As we explain above, we are persuaded that

§ 2D1.1 directly applies to § 841(d)'s prohibited conduct--

possession of a listed chemical with intent to manufacture

amphetamine. But, even if it does not, it was certainly the most

analogous guideline when Leed was sentenced. As the majority in

United States v. Voss acknowledges, § 2D1.11 is a substantive,

rather than a clarifying, amendment and does not apply to conduct

committed before its adoption. Voss,

.

The district court did not err in applying § 2D1.1 to Leed's

offenses.

AFFIRMED.

13