IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-10257
Summary Calendar
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UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
ROCKY DALE MCKEEVER
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:88-CR-136-H)
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August 20, 1996
Before KING, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Rocky Dale McKeever appeals the district court’s denial of
his motion for reduction of sentence under 18 U.S.C. § 3582
(c)(2). We vacate the district court’s order and remand.
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*Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
I. BACKGROUND
Rocky Dale McKeever (“McKeever”) was charged with conspiracy
to manufacture amphetamine and phenylacetone in violation of 21
U.S.C. § 846, and with possession of more than 500 grams of
phenylacetone with intent to manufacture amphetamine in violation
of 21 U.S.C. § 841(a)(1). Reserving the right to appeal the
denial of his motion to suppress, under Federal Rule of Criminal
Procedure 11(a)(2), McKeever pled guilty to conspiracy and was
sentenced to 216 months of imprisonment, followed by a five-year
term of supervised release.
McKeever challenged the validity of the search warrant on
appeal and a panel of this court vacated the district court’s
denial of the motion to suppress and remanded. United States v.
McKeever, 894 F.2d 712 (5th Cir. 1990). However, we granted
rehearing en banc and vacated the panel’s decision, affirmed the
district court’s denial of the suppression motions, and remanded
the case to the original panel for consideration of the remaining
sentencing issues. United States v. McKeever, 905 F.2d 829 (5th
Cir. 1990)(en banc). McKeever’s conviction was affirmed. United
States v. McKeever, 906 F.2d 129 (5th Cir. 1990), cert. denied,
498 U.S. 1070 (1991). McKeever then filed a motion, pursuant to
18 U.S.C. § 3582(c)(2), to reduce his sentence based on a
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retroactive amendment to the United States Sentencing Guidelines.
The magistrate judge recommended that relief be denied. The
district court adopted the findings of the magistrate judge and
denied relief. McKeever then filed a motion for reconsideration,
contending that he never received notice of the magistrate
judge’s findings due to a clerical error by the clerk’s office
and he wished to file objections to the magistrate judge’s
findings and recommendation. The district court granted the
motion and McKeever filed objections to the magistrate judge’s
findings and recommendations. The district court entered an
order denying McKeever’s objections. McKeever now appeals.
II. DISCUSSION
McKeever argues that his sentence should be reduced because
two flasks seized from his residence contained waste water which
should not have been used in calculating the total weight of
heroin equivalent for purposes of his sentencing. At the crime
scene, law enforcement officials seized, among other things, two
five-gallon buckets which contained wash solution, small amounts
of amphetamine and cocaine, and two flasks containing 26 liters
of a substance with detectable amounts of phenylacetone. The
total weight of all substances seized was 4,806.812 grams of
heroin equivalent. However, when calculating McKeever’s
sentence, the district judge excluded the wash solution in the
two five-gallon buckets; thus McKeever’s sentence was based on
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the 26 liters found in the two flasks and the small amounts of
cocaine and amphetamine. Twenty-six liters is equivalent to
26,000 grams under the Measurement Conversion Table of the United
States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1. The 26,000
grams was multiplied by .075 to determine the heroin equivalent.
U.S.S.G. § 2D1.1., Drug Equivalency Tables. The result is 1950
grams of heroin equivalent. The small amounts of amphetamine and
cocaine found weighed 18.042 grams. Adding these together the
total weight was 1,968.042 grams, the weight used in calculating
McKeever’s sentence.
At trial, the Government’s expert chemist testified that she
analyzed samples of the substance found in the two flasks. She
found that the first sample contained 27% phenylacetone and the
second sample contained 28% phenylacetone. According to her
calculations, the two flasks contained a total of 7,200 grams of
phenylacetone. McKeever requests a reduction in his sentence
based on amendment 484 to the United States Sentencing
Guidelines, which specifies that certain materials, including
waste water from an illicit lab, should be excluded when
calculating the weight of controlled substances seized for
sentencing purposes. U.S.S.G. App. C, amend. 484 (1993).1
1
"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. . .
waste water from an illicit laboratory used to manufacture a
controlled substance.” U.S.S.G. App. C, amend. 484 (1993).
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The Government contends that McKeever has already received
the benefit of this amendment because the district court excluded
the wash solution in the five-gallon buckets. McKeever contends
that the amount of solution in the flasks that was not
phenylacetone should also be excluded as waste water.
Indeed, the chemist did testify that the samples she took
were representative samples and contained 27% and 28%
phenylacetone, respectively. It is unclear whether the other 73%
and 72% are substances which need to be separated from the
phenylacetone before it can be measured for purposes of
calculating the sentence. If so, then this situation is one
which amendment 484 was intended to cover. Because it is unclear
what substances composed the rest of the solution, we vacate the
district court’s order denying McKeever’s motion for reduction of
sentence and remand for further proceedings.
VACATED and REMANDED.
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