Conviction for distributing meth ingredients upheld

U.S. v. Buonocore, -- F.3d --, 2005 WL 1666069 (10th Cir. 2005) - affirmance of conviction & sentence for distributing ephedrine and pseudoephedrine for meth manufacture. District court rejected plea based on refusal to admit knowledge the ephedrine was going to be used to make meth. Mr. Buonocore did not argue in the district court that he was willing to admit he had reasonable cause to believe that the products he sold would be used to manufacture meth and the district court did not plainly err in characterizing his plea as an Alford or nolo plea. District court had discretion to refuse to accept plea based on failure to admit guilt. A district court's general policy against Alford or nolo pleas is OK. District court correctly denied "innocent merchant" jury instruction--it did not correctly state the law.
There was no constitutional Booker error because defendant's counsel admitted at sentencing that defendant unlawfully distributed the ephedrine and pseudoephedrine quantities found by the district court. The non-constitutional error in treating the GLs as mandatory did not meet the fourth prong of plain error review. Interesting Seymour concurrence in which she concludes that "other than the fact of a prior conviction, a defendant's (and surely a defense counsel's) admission of facts outside the guilty plea context or outside the context of a formal stipulation cannot function as a waiver of his Sixth Amendment rights and does not permit an increase in the relevant statutory maximum sentence within the meaning of Booker." Defendant did not know about his rights to a jury trial and proof beyond a reasonable doubt re: facts that increased the statutory maximum sentence attributable to his conduct and did not intend a general waiver of constitutional rights. She also concludes, however, that the plain error standard was unmet.