United States v. Tubbs

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 12, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-51163
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL EDWARD TUBBS, also known as Michael Tubbs,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-03-CR-69-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Michael Tubbs was convicted of conspiracy to manufacture

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 846.

Tubbs appeals his sentence, arguing that the district court

clearly erred in including the weight of the “bones” in the drug

quantity attributed to him. Because bones, a byproduct of the

methamphetamine manufacturing process, can be injected by users

without separating the methamphetamine, bones constitutes a

*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
 No. 03-51163
-2-

mixture or substance containing a detectable amount of

methamphetamine for purposes of the sentencing guidelines. See

U.S.S.G. § 2D1.1, comment. (n.1). The district court did not

clearly err in including the entire weight of the bones in the

drug quantity attributed to Tubbs. See U.S.S.G. § 2D1.1(c),

comment. (n.A); United States v. Ramirez, 271 F.3d 611, 612 (5th

Cir. 2001).

Tubbs also argues that the district court erred in denying

his request for appointment of an expert chemist to testify at

the sentencing hearing. Tubbs failed to make the necessary

showing to obtain appointment of an expert witness. See United

States v. Patterson, 724 F.2d 1128, 1130 (5th Cir. 1984); see

also Moore v. Johnson, 225 F.3d 495, 503 (5th Cir. 2000).

AFFIRMED.