United States Court of Appeals

Fifth Circuit



## FILED

January 23, 2006

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

for the Fifth Circuit

No. 05-50312

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DANIEL VERNON HARDIN, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before JONES, Chief Judge, DeMOSS, and OWEN, Circuit Judges.

DeMOSS, Circuit Judge:

We recall the mandate, withdraw the opinion filed on December

29, 2005, and substitute the following:

Da niel Vernon Hardin, Jr. pleaded guilty to a one-count

indictment for the attempt to manufacture an unspecified amount of

methamphetamine and appeals his sentence on the grounds that the

district court erred: (1) in denying Hardin’s request for

appointment, under the Criminal Justice Act (the “CJA”), 18 U.S.C.

§ 3006A(e), of an expert to testify at sentencing, and (2) in

including “bones,” a byproduct o f methamphetamine production, in

the drug quantity attributable to Hardin. We vacate the sentence2

and remand with instructions for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Hardin was indicted on April 13 , 2004 on a single charge of

the knowing and intentional attempt to manufacture methamphetamine,

a Schedule II controlled substance, in violation of 21 U.S.C. §§

841(a)(1) and 846. The indictment did not allege a quantity of

drugs attributable to Hardin. Based upon a finding of Hardin’s

indigence, defense counsel was appointed for Hardin under the CJA.

Hardin pleaded guilty on July 15, 2004.

The Government filed a factual basis for the guilty plea. The

factual basis did not proffer a drug quantity but did set forth the

Government’s ability to prove the elements of the offense in the

eve n t the case had proceeded to trial. In that event, the

Government would have shown that law enforcement discovered Hardin,

who was wanted for a parole violation on a drug possession charge,

near a river in proximity to items believed to be connected to the

production of methamphe t amine. Law enforcement believed that

Hardin and another individual were involved in methamphetamine

production, and law enforcement found cans and plastic containers

filled with clear liquid that smelled of ether and other materials

used in methamphetamine production. The containers were discovered

in Hardin’s vehicle and in the surrounding area. The factual basis

also described Hardin’s statement, provided after Hardin received

warnings as required by Miranda v. Arizona

, 384 U.S. 436 (1966), in1 “Unless otherwise specified, the weight of a controlled

substance set forth in the table refers to the entire weight of

any mixture or substance containing a detectable amount of the

controlled substance.” U.S.S.G. § 2D1.1, note (A) (2003). The

comments to § 2D1.1 provide, in relevant part,

“Mixture or substance” as used in this guideline has

the same meaning as in 21 U.S.C. § 841, except as

expressly provided. Mixture or substance does not

include materials that must be separated from the

controlled substance before the controlled substance

can be used. Examples of such materials include the

3 which Hardin admitted his use of methamphetamine on the scene and

admitted to stealing methamphetamine from the “cook,” the process

by which methamphetamine is produced.

When Hardin pleaded guilty, he stated he had no disagreement

with the factual basis as submitted by the Government. But Hardin

did not admit, at any point in the proceedings, the quantity of

methamphetamine attributable to him in connection with his plea to

the indictment.

Hardin moved under the CJA for the appointment of Mr. Max

Courtney, a chemical expert and lab director, as an expert. S ee 18

U.S.C. § 3006A(e). In his motion, Hardin argued the majority of

the quantity of methamphetamine attributed to him was bones, a

byproduct that could not, according to Hardin, be included in the

calculation of the drug quantity under the guidelines. Hardin

proffered Mr. Cou rtney’s testimony. He stated that Mr. Courtney

would testify that bones are a toxic precipitate of methamphetamine

production and do not qualify as a mixture or substance containing

methamphetamine for purposes of U.S.S.G. § 2D1.1. 1 Under the 1993fiberglass in a cocaine/fiberglass bonded suitcase,

beeswax in a cocaine/beeswax statue, and waste water

from an illicit laboratory used to manufacture a

controlled substance. If such material cannot readily

be separated from the mixture or substance that

appropriately is counted in the Drug Quantity Table,

the court may use any reasonable method to approximate

the weight of the mixture or substance to be counted.

Id . at cmt. n.1.

4 amendment to U.S.S.G. § 2D1.1, a material “that must be separated

from the controlled substance before the controlled substance can

be used” does not qualify as a mixture or substance under the

guideline. S ee U.S.S.G. § 2D1.1., cmt. n.1. Hardin argued that

bones are such a material, toxic and unusable with methamphetamine.

Although the Government argued a mixture of bones and

methamphetamine should be included in the § 2D1.1 calculation,

H ardin countered that the amended guidelines did not support so

including bones. Hardin identified an apparent conflict between a

no n-precedential decision of the Fifth Circuit, U nited States v.

Tubbs

, 96 Fed. Appx. 257 (5th Cir. 2004) (unpublished), and a

decision of the Seventh Circuit, United States v. Stewart

, 361 F.3d

373 (7th Cir. 2004). Based upon his interpretation of the amended

guidelines and what he identified as a circuit conflict on the

method of ca l culating the quantity of methamphetamine, Hardin

argued for the expert’s appointment: (1) to retest the material in

question to determine whether it contained an unuseable material;

(2) to testify to counter the government’s arguments about the2 At oral argument on appeal, counsel for the government

suggested that the district court relied, in part, on its

familiarity with the testimony of the expert to be appointed here

based upon a prior case before the same district court and on its

familiarity with the nature of methamphetamine and bones based

upon the court’s docket. However, the record on appeal does not

demonstrate conclusively whether this suggestion is correct

because the district court gives no reason for its denial of

Hardin’s application for expert appointment.

3 Two levels were added because the offense involved the

discharge of a hazardous substance, and three levels were

subtracted for acceptance of responsibility.

5 nature of bones; (3) to advise defense counsel about crossexamination of the government’s witness regarding th e nature of

bones; and (4) to testify about methamphetamine production and the

resulting separable waste, i.e., bones.

The district court did not conduct a hearing on Hardin’s §

3006A(e) motion for appointment of an expert. The court denied the

motion on August 25, 2004, providing no reasons for the

disposition. 2

Hardin also submitted written objections to the presentencing

report (“PSR”), which recommended a base offense level of 26

because at least 50 grams but less than 200 grams of

methamp hetamine were involved in the offense. 3 Hardin’s total

offense level was 25, and in combination with a criminal history

category V, the applicable guideline range was 100 to 125 months.

Hardin objected , in part, that the quantity of methamphetamine

attributed to him was too high because it included 171.51 grams of

bones, an unusable byproduct of methamphetamine production. Hardin4 Hardin’s other objections are not relevant to the

disposition of his instant appeal.

6 also objected to the application of the guidelines as ultra vires

the Sixth Amendment un der B lakely v. Washington

, 542 U.S. 296

(2004). 4

On February 9, 2005, the sentencing proceedings were held

after the Supreme Court announced its opinion in United States v.

Booker

,

___ U.S.

___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). In

overruling Hardin’s objection to the inclusion of bones in the drug

quantity calculation, the court stated, “[t]he writers of the

guidelines have provided that a material or substance containing a

detectable amount of controlled substance should be counted and

that has been ruled to be the law by the Fifth Circuit.” With this

ruling, the district court concluded the applicable guideline range

was 100 to 125 months’ imprisonment.

The district court subsequently sen tenced Hardin, under the

advisory sentencing scheme applicable after Booker , to 72 months’

imprisonment, 3 years’ supervised release, a fine of $1000, and a

$100 special assessment. The district court gave no reason for its

departure from the guideline range, other than the advisory nature

of the guidelines, despite this Court’s directive that a sentence

outside of the applicable guideline range requires an articulation

of the reasons supporting the departure. S ee United States v.

Mares , 402 F.3d 511, 519 (5th Cir. 2005).7 DISCUSSION

Hardin timely appeals, arguing the district court erred in

denying his CJA motion in the absence of a hearing and improperly

including bones in the drug quantity calculation under U.S.S.G. §

2D1.1.

I.

First, we must address the applic able standard of review.

Hardin argues that our review is de novo

, pointing to language from

Unites States v. Patterson

, 724 F.2d 1128, 1130 (5th Cir. 1984)

(stating “where the government's case rest s heavily on a theory

most compete ntly addressed by expert testimony, an indigent

defendant must be afforded the opportunity to prepare and present

his defense to such a theory with the assistance of his own expert

pursuant to section 3006A(e)”). In P atterson

, the panel addressed

a question of law: the meaning of “pivotal evidence” under our

Circuit’s prior caselaw. Id . (citing United States v. Theriault

,

440 F.2d 713 (5th Cir. 1971)). Such a question of law required d e

novo review. Id

.

But here we do not address the meaning of a term used in the

Court’s caselaw treatment of the CJA statute. Instead, we address

Hardin’s challenge to the district court’s denial of his CJA motion

for expert appointment. We have previously stated that review of

the district court’s denial of such a motion is review for abuse of

d iscretion. U

nited States v. Castro

, 15 F.3d 417, 421 ( 5th Cir.8

1994) (fi nding no abuse of discretion in the denial of a motion

unde r the CJA for psychological examination); U nited States v.

Williams

, 998 F.2d 258, 263 n.10 (5th Cir. 1993); United States v.

Walborn

, 730 F.2d 192, 194 (5th Cir. 1984). This Circuit has also

spoken of the standard in terms of case-by-case review of the

record. “Usually the appellate court will be reviewing a trial

court denial of a § 3006A(e) motion in light of only the

information available to the trial court at the time it acted on

the motion.” T heriault

, 440 F.2d at 715 (addressing the definition

of a “necessary service”). Such a statement is consistent with

review for abuse of discretion. We reject Hardin’s argument that

de novo review applies to the denial of a § 3006A(e) motion.

Here, as before, we review the district court’s denial of

Hardin’s motion for expert appointment under the CJA for abuse of

discretion. S ee Castro

, 15 F.3d at 421; Williams

, 998 F.2d at 263

n.10; Walborn , 730 F.2d at 194. In so doing, we conclude on this

record that the court abused its discretion in denying Hardin’s

request for expert appointment.

II.

The CJA provides the procedure both for an indigent defendant

to request expert appointment and for the district court to resolve

the motion.

Section 3006A(e) provides in relevant part,

Counsel for a person who is financially unable to obtain

. . . expert

. . . services necessary for adequate5 Hardin’s motion for expert appointment satisfied the

requirement that a defendant seeking appointment of an expert

under the CJA must “demonstrate with specificity” why the

services are necessary. See United States v. Gadison , 8 F.3d

186, 191 (5th Cir. 1993). Hardin’s sentence differs

substantially depending upon whether bones are included in the

9 represe ntation may request them in an ex parte

application. Upon finding, after appropriate inquiry in

an ex parte proceeding, that the services are necessary

and that the person is financially unable to obtain them,

the court

. . . shall authorize counsel to obtain the

services.

18 U.S.C. § 3006A(e)(1) (2000 & Supp. 2005).

It is undisputed that Hardin was indigent and that he moved

properly under § 3006A(e) (1) for expert appointment. Thus, the

district court sh ould have granted the appointment “after

appropriate inquiry in an ex parte proceeding” if Hardin

demonstrated the expert was “necessary for an adequate

representation.” S ee id. ; Williams

, 998 F.2d at 263. District

courts must “grant the defendant the assistance of an independent

expert under § 3006A when necessary to respond to the government's

case against him, where the government's case ‘rests heavily on a

theory most competently addressed by expert testimony.’” W illiams

,

998 F.2d at 263 (quoting United States v. Patterson

, 724 F.2d 1128,

1130 (5th Cir. 1984)).

The primary issue before the district court at sentencing,

raised by Hardin ’s CJA motion and his objections to the PSR, was

the enhancement of his sentence on the basis of the inclusion of

bones in the attributable drug quantity. 5 In 1993, the Guidelinesdrug calculation as a mixture or substance under § 2D1.1.

Hardin’s guideline range was calculated using the amount of

methamphetamine found in five exhibits of mixtures, the content

of which is unclear from this record.

10 were amended to clarify that a “mixture or substance does not

include materials that mu st be separated from the controlled

substance before the controlled substance can be used.” U.S.S.G.

§ 2D1.1., cmt. n.1; U nited States v. Towe

, 26 F.3d 614, 617 (5th

Cir. 1994). Since the 1993 amendment, this Circuit has not

resolved in a published opinion whether bones satisfy the

G uidelines’ definition of a mixture or substance, such that they

should be included in the calculation of methamphetamine quantity.

However, this Court has considered, in the wake of the 1993

Amendment, whether bones might be included under U.S.S.G. § 2D1.1

as a mixture or substance in an unpublished opinion, United States

v. Tubbs

, 96 Fed. Appx. 257 (5th Cir. 2004) (per curiam)

(unpublished), vacated

, 125 S. Ct. 1054 (2005), opinion on remand

,

133 Fed. Appx. 957 (5th Cir. ) (per curiam) (unpublished), c ert.

denied , 126 S. Ct. 463 (2005). There, a panel of this Court

explained that “[b]ecause bones, a byproduct of the methamphetamine

manufacturing process, can be injected by users without separating

the methamphetamine, bones constitute s a mixture or substance

containing a detectable amount of methamphetamine for purposes of

the sentencing guidelines.” I d

. at 257. The factual basis for

this statement was not provided. The substance referred to as11

“bones” in Tubbs may or may not be the same kind of substance for

which Hardin was held accountable in the present case. We simply

cannot determine from the record presently before us, nor from

Tubbs

, what is the factual nature of the substance called bones.

In any event, the Tubbs opinion upon which the Government relied

was vacated by the Supreme Court and as such provides no guidance

to the disposition of the issues raised here.

Thus, Hardin’s objections raised prior to and at sentencing

presented a question of law that remains open in this Circuit. In

addition to the legal question of quantity calculation under §

2D1.1, Hardin also disputed, on this record, the factual issue

regarding the content and nature of bones, irrespective of the

application of the guidelines. The Government submits that any

error in the denial of the motion or in the sentencing was harmless

because Hardin did not challenge the total amount of bones as

incorrect. In so arguing, the Government relies on an unpublished

opinion from the Tenth Circuit. United States v. Greathouse , No.

99-3400, 2000 U.S. App. LEXIS 24489 (10th Cir. Sept. 29, 2000).

There, the defendant argued the court erred in calculating his base

offense level with mixture quantity rather than the lower quantity

of pure methamphetamine. Id . at *2. The Tenth Circuit concluded

that the use of the larger mixture quantity was appropriate because

the weight of the mixture was not in dispute, as the defendant had

failed to challenge the weight of the mixture. I d

. at *7-*8. The6 The district court granted Hardin an extension of time in

which to file the § 3006A(e) motion. That decision is not

challenged here.

12 court found no abuse of discretion where the defendant waived the

appointment of an expert by failing to make a timely request for an

ex parte hearing and instead requesting appointment in open court

at the time of sentencing. I d

. at *10. G reathouse

, of course, has

no pr ecedential value as an unpublished opinion and more

importantly to this app eal, does not inform the question whether

the court erred in failing to give an ex parte hearing on this

record where Hardin moved, in a timely 6 and specific manner, for

expert appointment on a disputed factual issue regard ing the

primary issue to his sentence determination, that is, whether bones

are included under U.S.S.G. § 2D1.1.

Our holding in this case does not reach so broadly as to

require in all circumstances that a district court hold a hearing

on an ex parte application for appointment under § 3006A(e).

Neither the statute’s plain language nor our caselaw interpreting

it supports such a broad rule. See, e.g.

, Gadison , 8 F.3d at 191

(requiring a defendant “demon s trate with specificity” why the

requested services are necessary); United States v. Scott

, 48 F.3d

1389, 1395-96 (5th Cir. 1995) (refusing to construe a motion for

continuance, in which questions were raised related to expert

testimony, as a motion for appointment because th e defendant’s

request did not refer to either § 3006A or the defendant’s13

indigence and did not primarily seek appointment of an expert).

Instead, the language of the statute requires that the expert

services no t be authorized in the absence of an “appropriate

inquiry in an ex parte proceeding” and two determinations by the

court: that the services are necessary for an adequate defense and

that the defendant is financially unable to obtain those necessary

services. See 18 U.S.C. § 3006A(e)(1).

On this reco rd, however, the district court should have

permitted an ex parte proceeding on the motion for appointment

because the indigent defendant presented an ex parte application

under § 3006A(e)(1) specifically identifying as the disputed issue

whether bon es are “materials that must be separated from the

controlled substance” prior to use or whether “such mixture cannot

readily be separated from the mixture or substance.” S ee U.S.S.G.

§ 2D1.1, cmt. n.1. The resolution of this issue turns on questions

of both fact and law, the nature of bones and the interpretation of

§ 2D1.1, and is material because Hardin’s applicable sentence

differs substantially dependant on the issue’s resolution. On this

record, and after an ex parte proceeding on the motion, the

district court should have granted Mr. Co urtney’s appointment as

necessary to Hardin’s adequate defense, under § 3006A(e)(1), to

inform the description and characterization of bones.

On this record we cannot determine what, if anything, the

co urt relied upon in denying expert appointment, and the record14

does not confirm what is the factual nature of bones for purposes

of making the necessary § 2D1.1 determination.

III.

Based on the forego ing, we determine that prior to Hardin’s

resentencing, a hearing on the nature of bones is required. Only

upon such a record may the district court then address whether the

material found at the scene of Hardin’s apprehension should be

included as a mixture or substance under § 2D 1.1 or should be

excluded as a material that must be separated prior to the use of

methamphetamine. See U.S.S.G. § 2D1.1.

Such proceedings are required before this Court can review

Hardin’s remaining challenge, that the court erred in including

bones in the attributable drug quantity under § 2D1.1. As such, we

need not and cannot review, on this record, Hardin’s challenge to

the district court’s inclusion of the bones as a matter of law. We

state no opinion on the propriety of including bones within the

drug quantity calculation under U.S.S.G. § 2D1.1.

On remand and following the distr ict court’s hearing of

testimony on the nature of bones and analysis of the material under

§ 2D1.1, a sentence within the correctly determined guideline range

will be entitled to a strong presumption of reasonableness. M ares

,

402 F.3d at 519. Review of whether the guidelines are correctly

applied

– whether bones are included under § 2D1 .1 – is d e novo

.

United States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). In15

the event the district court resentences Hardin outside of the

applicable guideline range, then, as we have previously directed,

the court

should carefully articulate the reasons [it] concludes

that the sentence [it] has selected is appropriate for

that defendant. These reasons should be fact specific and

include, for example, aggravating or mitigating

circumstances relating to personal characteristics of the

defendant, his offense conduct, his criminal history,

relevant conduct or other facts specific to the case at

hand which led the c ourt to conclude that the sentence

imposed was fair and reasonable. Such reasons are

essential to permit this court to review the sentence for

reasonableness as directed by Booker.

Id

.

CONCLUSION

Based upon the foregoing, we vacate Hardin’s sente nce and

remand the case to the district court with instructions (1) to

appoint Hardin’s chemical expert and take testimony from such

expert as well as any relevant expert tendered by the United States

for purposes of providing testimony on the issue of the nature and

character of bones vis-a-vis methamphetamine production and

sentencing; (2) to determine the guideline range for sentencing in

light of any changes in the relevant drug quantity necessitated by

the court’s findings base d upon the expert testimony; (3) to

resentence Hardin; and (4) to provide reasons for any departure

from the calculated guideline range in confor mance with our

directive in Mares

.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS FOR RESENTENCING.16