The following excerpt is from U.S. v. Berry, 914 F.2d 263 (9th Cir. 1990):
We have considered defendant's contention that there cannot be manufacture without possession. The difficulty with his argument is that the elements of possession are not directly required for a conviction for manufacture. Furthermore, under the facts of this case no rational jury could find Berry guilty of the lesser offense and acquit him of the greater offense. See Keebler v. United States, 412 U.S. 205, 208 (1973).
IV. Use of Berry's capacity for production was a proper application of the sentencing guidelines.
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