United States v. James Joseph Rosacker

Rosaeker appeals the sentence imposed by the district court after he pleaded guilty to one count of using a communication device to facilitate a drug trafficking offense in violation of 21 U.S.C. § 843 (b). The district court sentenced him to the statutory maximum, 48 months. On appeal, Rosaeker argues that the district court erred by (1) basing the estimate on an unreliable police laboratory report, and (2) applying the preponderance of the evidence standard rather than the clear and convincing standard in making the drug quantity approximation. We vacate the sentence and remand because we conclude that the police lab report was unreliable. We affirm the district court’s use of the preponderance standard.

I. BACKGROUND

On February 10, 2001, Rosacker’s mother discovered what appeared to be a drug lab in a shed on her property that Rosaeker had been using and reported her discovery to the Yamhill County Sheriffs Office. Law enforcement officers from various agencies searched the shed and found twenty-six plastic bags labeled “Herba Ephedrae” and filled with one pound each of “Ma Huang” tea (“mahuang”) and ten empty bags of the same type. The officers also found a…