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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-4194
UNITED STATES OF AMERICA,
PLAINTIFF-APPELLEE,
VERSUS
BENTON MILEY and BILLIE MARIE TAYLOR,
DEFENDANTS-APPELLANTS.
Appeal from the United States District Court
for the Eastern District of Texas
(:91 CR 86 1)
( December 23, 1992 )
Before REAVLEY, SMITH and DEMOSS, Circuit Judges.
DEMOSS, Circuit Judge:*
Defendants Benton Miley ("Miley") and Billie Marie Taylor
("Taylor") appeal their convictions for several counts including
conspiracy to manufacture methamphetamine. We affirm the
convictions.

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2
I. FACTS & PROCEEDINGS BELOW
During the Summer of 1991, Benton Miley ("Miley") approached
Paul Mills, the owner of a chemical supply business near Houston.
Miley said that he was in possession of stolen chemicals from
Mills's warehouse and that he was unsuccessfully attempting to
manufacture methamphetamine with the chemicals. Mills, who was a
paid government informant, gave Miley the pager number of a person
who could supply the illegal chemicals. In reality, the pager
belonged to an undercover Houston narcotics officer, DiMambro.
From July 7, 1991 through July 19, 1991, Miley called the
pager repeatedly. Most of their conversations were recorded and
played for the jury. During the course of these discussions,
DiMambro agreed to sell Miley 55 pounds of ephedrine for $25,000.
They agreed to consummate the sale in a restaurant parking lot in
Liberty, Texas on July 19, 1991.
Miley arrived at the restaurant in a pickup truck driven by
his sister, Jacquelyn Miley ("Jacquelyn"), with a passenger, his
girlfriend, Taylor. When DiMambro arrived at the restaurant, Miley
left the pickup truck and entered the officer's vehicle. Miley was
carrying a briefcase, presumably containing the purchase money.
However, Miley opened the briefcase and produced a sawed-off
shotgun and a bottle of nitric acid threatening DiMambro with both.
Taylor immediately entered the officer's car, removed the container
of ephedrine, and placed it in the bed of the pickup truck. Miley
then put the shotgun and the acid back in the brief case, and
Taylor returned the briefcase to the pickup truck. Eventually, the

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3
surveillance officers began approaching and DiMambro fled his
vehicle. Miley, Jacquelyn and Taylor were arrested.
On July 20, 1991, officers of the Houston Police Department
were called to the home of Randal Yanez ("Yanez") and Robin
Hutchinson ("Hutchinson"), Miley's niece. Yanez and Hutchinson
told the officers that they had discovered items in their garage
that did not belong to them and which they felt were unsafe. Yanez
directed the officers to heating mantels, glassware, chemicals, and
other items used to manufacture methamphetamine. During the trial,
Miley testified that he put all of these items into the garage.
Miley, Taylor, and Jacquelyn were tried before a jury on an
eight count superseding indictment. During the trial, Jacquelyn
pled guilty to count 4, possessing a firearm in relation to a drug
trafficking offense, and count 5, being a felon in possession of a
firearm. The jury convicted both Miley and Taylor of the remaining
counts:
Count 1: conspiracy to manufacture methamphetamine in
violation of Title 21 U.S.C. § 846;
Count 2: possession of a listed chemical with the
intent to manufacture methamphetamine in
violation of Title 21 U.S.C. § 841(d)(1);
Count 3: possession of a firearm in relation to a drug
trafficking crime in violation of Title 21 U.S.C. §
924(c); and
Counts 7 and 8: possession of an unregistered firearm in
violation of Title 26, U.S.C. § 5861.

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4
Miley was also convicted of count 6, being a felon in possession of
a firearm in violation of Title 18, U.S.C. § 922(g).
Miley was sentenced to life imprisonment under count 1, 120
months consecutive imprisonment for count 3, and 120 months
concurrent imprisonment for counts 2, 6 and 7. Taylor was
sentenced to 292 months imprisonment for count 1, 120 months
consecutive imprisonment for count 3, and 120 months concurrent
imprisonment for both counts 2 and 8. Both Miley and Taylor appeal
their convictions.
II. Entrapment
Miley raised entrapment as an affirmative defense. This
defense requires defendant to show that (1) he was induced by the
government to commit the offense, and (2) he was not predisposed to
commit the offense. United States v. Pruneda-Gonzalez, 935 F.2d
190 (5th Cir. 1992). Miley has the initial burden to prove that
the government's conduct created a substantial risk that an offense
would be committed by a person other than one ready to commit it.
Then the burden shifts to the government to prove beyond a
reasonable doubt that the defendant was predisposed to commit the
crime. United States v. Johnson, 872 F.2d 612 (5th Cir. 1989).
Miley's entrapment defense was rejected by the jury, and this court
"looks to the evidence to determine whether, viewing reasonable
inferences and credibility choices in the light most favorable to
the Government, a reasonable jury could find, beyond a reasonable
doubt, that the defendant was predisposed to commit the offense."
Id.; United States v. Arditti, 955 F.2d 331, 342 (5th Cir. 1992).

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5
Miley claims that the government failed to meet its burden to
prove predisposition. His argument primarily centers on his own
testimony that he came to Mills's warehouse for plumbing supplies
and that DiMambro and Mills repeatedly insisted that he manufacture
methamphetamine. The jury simply chose not to believe this. Miley
further argues that the government, through its informant, Mills,
induced him into purchasing the illegal chemicals because Mills
gave him the undercover agent's beeper number and supplied him with
a thermometer and adapter to use in manufacturing the
methamphetamine.
The government points to other evidence showing Miley's
predisposition: (1) Miley initiated the first discussion Mills
concerning the manufacture of methamphetamine; (2) Miley sought
after officer DiMambro after receiving his pager number and being
told DiMambro could supply illegal chemicals; (3) Miley repeatedly
contacted DiMambro in this regard; and (4) DiMambro made other
contacts in which Miley intimated he was currently manufacturing
methamphetamine and needed methylamine to provide it in powder
form. We hold that the government presented sufficient proof of
Miley's predisposition.
III. Conspiracy and Possession Offenses
Miley was convicted under counts one and two of the
indictment, which charge, respectively, that Miley (1) conspired,
in violation of § 846, to manufacture methamphetamine in violation
of § 841(a)(1), and (2) possessed ephedrine, a listed chemical,
with the intent to manufacture methamphetamine in violation of §

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841 (d)(1). Miley asserts that he was improperly prosecuted for
the same offense because the evidence at trial shows that
possession of ephedrine, which is punishable under § 841(d)(1), was
the only proof that he was involved in the conspiracy in violation
of § 846, therefore, the government incorrectly applied §
841(a)(1).
Congress' interest in enacting § 841(d) was to provide for
prosecution of certain behavior, possession of chemicals, that
could not be reached under § 841(a). United States v. Perrone, 936
F.2d 1403 (2nd Cir.), clarified, 949 F.2d 36, 37-38 (2nd Cir. 1991)
(§ 841(d) does not disturb prosecution under §841(a), instead
§841(d) allows for the prosecution of additional behavior which may
not be reachable under §841(a)). Congress provided a lighter
penalty (10 yrs. maximum) under § 841(d) than under § 841(a)(1) (10
yrs. minimum). Miley asserts that the evidence failed to prove
that he engaged in any criminal conduct beyond that which is
prosecutable under § 841(d). Miley relies on Perrone in which the
Second Circuit reversed a conviction for a § 841(a)(1) violation
because the evidence was sufficient to show only a violation of §
841(d). Id., cited in United States v. Stone, 960 F.2d 426, 431 n.1
(5th Cir. 1992) (Stone's conviction under § 841(a)(1) upheld
because the basis for conviction was not merely defendant's
possession of ephedrine; it was his numerous expressions of intent
to manufacture methamphetamine). Miley is correct that under
Perrone and Stone, there must be additional evidence to support a
conviction of the § 841(a)(1) conspiracy beyond the minimum

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1 Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306 (1932).
7
necessary to sustain a conviction under § 841(d). Id. However,
such additional evidence exists in this case, as outlined in the
next section of this opinion, making Perrone inapplicable here.
This case passes muster under Blockburger1 because both
offenses require proof of a fact not necessarily required by the
other, even with the substantial overlap in the proof offered at
trial. United States v. Stovall, 825 F.2d 817, 822 (5th Cir. 1987).
Here the essence of the conspiracy charge was the agreement to
manufacture methamphetamine. In no way was possession of a
precursor chemical necessary to that offense. United States v.
Prati, 861 F.2d 817, 822 (5th Cir. 1988). Likewise, no agreement
was necessary for a conviction under § 841(d). Miley was properly
convicted and sentenced for both offenses.
IV. Sufficiency of the Evidence
In deciding sufficiency of evidence, the Court shall determine
whether, when viewing evidence and all inferences that may be
reasonably drawn from that evidence in a light most favorable to
the jury's verdict, a rational jury could have found essential
elements of the offense beyond a reasonable doubt. United States v.
Zuniga-Salinas, 945 F.2d 1302 (5th Cir. 1991). The elements
necessary for a drug conspiracy are (1) the existence of an
agreement to manufacture methamphetamine, that each defendant had
(2) knowledge of the agreement and (3) voluntarily participated in

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the conspiracy. United States v. Carter, 953 F.2d 1449, 1454 (5th
Cir. 1992).
Miley and Taylor assert that there was insufficient evidence
to support the jury's verdict on count one because there was no
evidence of an agreement to manufacture methamphetamine. Miley
maintained throughout the trial that he was acting on his own
behalf in attempting to acquire ephedrine. Neither Jacquelyn nor
Taylor are referred to in the tapes; only an agreement between
Mills, the informant, and Miley is eluded to in the tapes. Miley
concludes that viewing the evidence most favorably to the
government, the only agreement was between Miley, Mills and
DiMambro. See United States v. Martino, 648 F.2d 367, 404-405 (5th
Cir. 1981) (there can be no indictable conspiracy with a government
informer; a government agent cannot be a co-conspirator). Miley
contends that the only evidence linking Jacquelyn and Taylor to the
conspiracy is their presence at the scene of the arrest.
The following is an outline of the evidence presented by the
government that clearly established a conspiracy to manufacture
methamphetamine among Miley, Taylor, and/or unknown others:
(1) In his initial contact with Mills, Miley told him that he
knew who had burglarized his warehouse, that he had
bought phenylacetic acid from the burglars, and that he
was "cooking it" without success;
(2) During one of Miley's discussions with Mills about the
manufacture of methamphetamine, Taylor was with him.
(3) Mills told Miley that the pager number he gave Miley
belonged to a person who could furnish him with
chemicals;

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(4) In Miley's first conversation with DiMambro, he told
DiMambro that he other unnamed persons were attempting to
make methamphetamine;
(5) In a conversation with DiMambro, who returned Miley's
page, Miley told DiMambro he would be willing to exchange
methamphetamine for a gallon of methylamine 40%.
Subsequently, Miley told DiMambro that he could not do
the transaction as an exchange because the people with
whom he was working would not agree;
(6) In another conversation with DiMambro, Miley told him
that he wanted ephedrine "to go into a venture with his
people from California for the manufacture of
methamphetamine." Miley responded to DiMambro's
questions regarding problems in the manufacturing process
by stating that he felt "these other people were doing
[something] wrong," and "we just can't get it to go and
I've lost a lot of money."
(7) In several taped conversations where the transaction to
sell ephedrine was being set up, Miley revealed that more
people were involved in the conspiracy.
a) On July 17, 1991, Miley told DiMambro that his
"people from out in California" were in town, and
that there would not be a problem with the asking
price for the ephedrine. Miley also said that the
"California people" had everything they needed,
except the ephedrine. Miley also bragged that the
group manufactured seven pounds of methamphetamine
per day.
b) During the morning of July 18, 1991, Miley and
DiMambro briefly discussed the anticipated sale of
ephedrine, and then Miley again spoke about his
failed manufacturing attempts. He told DiMambro
that he obtained a thermometer from Mills and that
he had four or five people "look at it with him" to
see if he could produce methamphetamine.
c) When Miley and DiMambro agreed to meet in a parking
lot in Liberty, Texas, Miley said that he would
probably be bringing a guy from California because
"it's his money." Miley explained that his man
could confirm the authenticity of the chemical, and
then Miley would hand over the money to DiMambro.
d) DiMambro recorded another conversation confirming
the time for the exchange. Miley said he would
bring a couple of girls instead of the man from

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10
California, because he needed someone to "cover his
back."
e) On the day of the sale, Miley arrived at the
restaurant with Jacquelyn and Taylor. DiMambro was
wearing a body recording device and was monitored
throughout the transaction by other agents.
DiMambro asked to see the money, and Miley took the
briefcase from Taylor and exited the truck. Upon
entering DiMambro's car, Miley pulled out of the
briefcase a shotgun and held it on DiMambro while
the women moved the chemicals from the car to the
truck. Taylor then retrieved the briefcase from
Miley while Jacquelyn held a revolver on DiMambro.
f) Taylor's purse contained a recipe for manufacturing
methamphetamine. Her fingerprints were also found
on another recipe for methamphetamine found at
Miley's niece's house.
In light of Miley's statements to DiMambro and Mills, Taylor's
possession of methamphetamine recipes, and Miley and Taylor's
forcible dispossession of the chemicals from Dimambro, we hold that
the verdicts were supported by sufficient evidence.
V. Taylor's Sufficiency of the Evidence Arguments
Taylor challenges the sufficiency of the evidence on her
convictions for possession of ephedrine, possession of a firearm in
relation to a drug trafficking crime and possession of an
unregistered firearm.
1) Possession of Ephedrine.
Title 21 U.S.C. § 841(d) requires proof that a defendant
knowingly and intentionally possessed a precursor chemical with the
intent to manufacture a controlled substance. United States v.
Martinez, 950 F.2d 222, 224 (5th Cir. 1991).

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2 Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90
L.Ed. 1489 (1946).
11
The evidence shows that Taylor removed the bucket of ephedrine
from officer DiMambro's car herself. Taylor argues that there is
no evidence that she knew that ephedrine was in the bucket. The
government asserts that from the circumstances surrounding her
acquisition of the bucket, one could infer that she knew the
contents. Moreover, the government invokes the Pinkerton2 rule to
hold Taylor liable for all subsequent offenses of her co-
conspirators, committed in furtherance of the conspiracy.
2) Possession of a firearm in relation to a drug
trafficking crime (count 3) and possession of an
unregistered firearm (count 8).
The elements for a violation of Title 26, U.S.C. § 5861(d) are
the knowing possession of a sawed-off shotgun that has not been
registered as required. United States v. Anderson, 885 F.2d 1248
(5th Cir. 1989). To obtain a conviction for using a firearm in a
drug trafficking crime, the jury had to find that the defendant,
during or in relationship to a drug trafficking crime, used or
carried, a firearm. United States v. Oinck, 889 F.2d 1425, 1431
(5th Cir. 1989).
While sitting in DiMambro's vehicle, Miley opened his
briefcase, removed the firearm and pointed it at DiMambro. Taylor
then retrieved the ephedrine from the back seat, and Miley returned
the firearm to the briefcase. Subsequently, Taylor retrieved the
briefcase. Clearly the weapon was used in the course of a drug
offense. Taylor claims that there is no evidence that she saw the

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12
gun, and thereafter, knew that it had been returned to the
briefcase. We agree with the government that when she retrieved
the briefcase, it was reasonable to conclude that she knew the
firearm was in the briefcase because it was plainly visible while
Miley held it on DiMambro but no longer visible when she retrieved
the briefcase. However, the government also correctly points to
Pinkerton to hold her liable for the firearm offenses committed in
furtherance of the drug conspiracy.
VI. Sentencing
The district court's sentence will be upheld as long as it
results from a correct application of the guidelines to factual
findings which are not clearly erroneous. United States v.
Sarasti, 869 F.2d 805, 806 (5th Cir. 1989). The applicable
sentencing guideline for conspiracy to manufacture methamphetamine
is U.S.S.G. § 2D1.4, and that guideline requires U.S.S.G. § 2D1.1
to govern, as if the object of the conspiracy - the manufacture of
methamphetamine - had been completed. If the conspiracy was
uncompleted or if no drugs were seized, the district court shall
approximate the amount. See U.S.S.G. § 2D1.4, comment notes 1 and
2. Here no working lab was seized, so the district court estimated
the amount of methamphetamine producible using the negotiated
amount of ephedrine, fifty-five pounds.
Initially, Taylor challenges the district court's
approximation based on the negotiated sale of fifty-five pounds of
ephedrine. She argues that because the ephedrine was never
weighed, either before or after the arrests and seizures, the

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13
district court's use of the fifty-five pound figure was clearly
erroneous. The government responds that the negotiated amount
controls the base level offense, and therefore, whether the
ephedrine was ever weighed is immaterial. Furthermore, Mills'
uncontradicted testimony indicated that he supplied the government
with fifty pounds of ephedrine to use in the reverse sting
operation. However, the difference between the amount of ephedrine
negotiated for and what Mills actually supplied would not change
the guideline calculations.
Both Taylor and Miley contend that the district court should
not have used U.S.S.G. § 2D1.1 to determine the offense level,
because certain chemicals necessary for methamphetamine production
were missing, and therefore, the completion of the conspiracy was
impossible. This argument is not supported by the evidence. There
are two methods for manufacturing methamphetamine: the P2P method
and the ephedrine method. Berens, the forensic chemist for the
D.E.A., testified that using the ephedrine method, fifty-five
pounds of ephedrine could produce fifteen to twenty kilograms of
pure methamphetamine. Although, the chemicals found in Houston
were those necessary for the P2P method of production, as was the
adulterated phenylacetic acid brought by Miley and Taylor to
Liberty, Texas, Berens testified that methamphetamine by either
process could be manufactured with the amount and type of equipment
obtained from Yanez and Hutchinson's garage. Additionally, Miley
told DiMambro that his "California people" had everything they
needed, except the ephedrine for the production of methamphetamine.

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14
The district court did not erroneously find that fifty-five
pounds of ephedrine would produce 14.96 kilograms of pure
methamphetamine, resulting in an offense level of 40 for Taylor and
offense level of 44 for Miley. Under level 44, Miley was sentenced
to life imprisonment. Taylor's criminal history category was
determined to be level 1, and coupled with an offense level of 40,
a guideline range of 292-365 months resulted. The district court
chose to sentence Taylor to the lowest figure of the range, 292
months imprisonment.
Because Taylor and Miley fail to demonstrate that the district
court either incorrectly applied the guidelines or applied them to
clearly erroneous fact findings, their sentences will not be
disturbed.
VII. Motion to Suppress
At trial, the government introduced several items removed from
Yanez and Hutchinson's garage. Yanez and Hutchinson had called the
Houston Police Department to their home upon their discovery of
items in their garage that did not belong to them and which they
felt were unsafe. Yanez directed the officers to heating mantels,
glassware, chemicals, and other items used to manufacture
methamphetamine. During the trial, Miley testified that he placed
all of these items into the garage.
Miley filed a motion to suppress all of the items removed from
the garage, arguing that the items were obtained by the police in
an illegal search that was conducted without a warrant and with a

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coerced consent. The district court overruled the motion. On
appeal, Miley makes the same contentions.
The uncontroverted evidence established that the initial
discovery of the items was by private citizens, Yanez and
Hutchinson, and therefore, no government action occurred until
these private citizens requested the police to "come and take away
these things." A "search" by private citizens does not invoke
Fourth Amendment protection. Coolidge v. New Hampshire, 403 U.S.
443, 487-490 (1971); United States v. Ramirez, 810 F.2d 1338, 1342
(5th Cir. 1987). The fourth amendment applies only to actions of
the government. When evidence is retrieved by a private
individual, it may be admitted at a criminal trial. Id. Moreover,
these individuals did not act as instruments or agents of the
government because, "where the government has offered no form of
compensation . . ., did not initiate the idea that [the private
parties] would conduct a search, and [the private parties] lacked
specific knowledge that [they] intended a search, . . . " the
private parties are not instruments or agents of the government.
Id., citing United States v. Bazan, 807 F.2d 1200, 1204 (5th Cir.
1986). The trial court's decision to deny Miley's motion to
suppress was correct.
VIII. Government's Conduct
Miley argues that because the government supplied him with
various items to facilitate his manufacture of methamphetamine,
including an amount of ephedrine that would insure his life
sentence, the government's conduct was outrageous and a violation

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of his Fifth Amendment right to due process. See United States v.
Russell, 93 S.Ct. 1673 (1973). This argument is similar to the
sentencing entrapment claim in United States v. Tobias, 662 F.2d
381, 386 (5th Cir. 1981).
The government asserts that Miley requested a drum of
ephedrine from the undercover officer, and that a drum is
equivalent to fifty-five pounds. Furthermore, during a
conversation with DiMambro in which DiMambro confirmed that he
would deliver "about fifty-five pounds" of ephedrine to Miley,
Miley responded, "that'll work."
Government infiltration of criminal activity is a recognized
and permissible means of investigation even though the government
agent supplies something of value to the criminal. Tobias at 386.
However, the government may not instigate the criminal activity,
provide the place, equipment, supplies and know-how, and run the
entire operation with only meager assistance from the defendant
without violating fundamental fairness. Id; See also, United States
v. Jones, 839 F.2d 1041, 1053 (5th Cir. 1988) (Tobias is the outer
limit of conduct that will not be considered outrageous;
government's conduct did not reach the level of outrageousness
found in Tobias because the government did not suggest scheme, nor
did government pay for the necessary material or provide the lab
site, government supplied scientific expertise and direction, as in
Tobias). In this case, the government's conduct was clearly not
outrageous especially given the fact that Miley initially contacted
the informant, Mills.

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IX. Sentencing Guidelines
Miley contends that the Sentencing Reform Act required the
Sentencing Commission to submit a report to Congress before the
guidelines could take effect. Miley contends that this
"requirement" was not followed and therefore the guidelines have no
legal effect. This Court has previously held this argument
invalid. United States v. White, 869 F.2d 822, 829 (5th Cir. 1989)
(the Court will not scrutinize the timeliness of reports intended
solely for the benefit of Congress).
Miley also contends that the guidelines are in violation of
the Presentment Clause of the United States Constitution. This
Court has likewise addressed this same argument in United States v.
Zapata-Alvarez, 911 F.2d 1025, 1027 (5th Cir. 1990) and held that
the guidelines do not violate the Presentment Clause because
enabling legislation for the guidelines was presented to and signed
by the President.
AFFIRMED.

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