United States v. Ralph Anthony Upshaw

Upshaw was convicted of manufacturing methamphetamine and of maintaining a place for the manufacture of methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1) and 856, and the district court sentenced him to 206 months’ imprisonment. On appeal, Upshaw challenges only the sentence. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 . We affirm in part, and vacate and remand in part.

I

The appeal arises out of a dispute regarding the quantity of methamphetamine produced in Upshaw’s lab. The initial pre-sentence report estimated this amount at two pounds and recommended a sentencing guidelines base level of 26, for which the sentencing range is 78 to 97 months. The government objected to the presentence report and filed an expert’s declaration which included an estimate that Upshaw’s lab had the capacity to produce eighteen pounds of methamphetamine. The probation office revised its presentence report and adopted the government’s estimate of the quantity of methamphetamine. The base offense level for eighteen pounds of methamphetamine is 34 and the sentencing range is…