United States v. Roy Patrick Cook

Roy Patrick Cook appeals his conviction and sentence for possession of ephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841 (d)(1). We affirm his conviction but remand for re-sentencing.

PROCEEDINGS

On June 27, 1989 Cook was indicted on two counts, one charging him with the attempted manufacturing of methamphetamine in violation of 21 U.S.C. §§ 841 (a)(1) and 846, and the other charging him with possession of ephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841 (d)(1). He moved to sup press the evidence, and the district court denied the motion.

If Cook had been convicted on the first count, he would have been sentenced under Sentencing Guidelines § 2X1.1, which provides that the base offense level is to be that “for the object offense.” United States Sentencing Commission, Guidelines Manual (U.S.S.G.), § 2X1.1 (1990). In this case the level would be 34. As the crime was an attempt, there would be a decrease of 3 to 31. § 2X1.1(b)(1). Cook’s criminal history category was I. His resulting sentence would have been 120 to 135 months. Cook entered into a plea agreement whereby the government dropped count one,…