IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20072
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WILLIAM D. MILLER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(CR H 89 200 2)
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August 10, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
William Miller appeals the denial of his motion for reduction
of sentence under 18 U.S.C. § 3582(c)(2). We vacate and remand.
*
Local Rule 47.5.1 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opinion should not be published.
I.
A.
Miller pleaded guilty to aiding and abetting the possession of
phenylacetone with the intent to manufacture methamphetamine. At
his rearraignment hearing, Miller agreed that he and his co-
defendant, William McCatty, had negotiated to teach an undercover
officer how to manufacture methamphetamine in exchange for "$5,000
in cash and a large amount of precursory chemicals." The metham-
phetamine lab was raided while the "cook" was in progress, and
agents seized twelve liters of phenylacetone or P2P, a precursor
product of methamphetamine. After a Drug Enforcement Administra-
tion ("DEA") chemist measured and sampled the phenylacetone and
other chemicals, the remaining drugs were destroyed.
The compensation agreed upon by Miller and the undercover
officer was $5,000, laboratory glassware with a 22-liter capacity,
110 pounds of phenylacetic acid, 50 pounds of sodium acetate, and
25 gallons of acetic anhydride. Miller objected that his offense
level should not be based upon the precursor chemicals that he had
bargained to receive in payment, but the government pointed out
that those quantities had not been used to calculate the offense
level.
Based upon the twelve liters of P2P seized in the raid, the
probation officer determined that Miller's base and adjusted
offense levels were 32. Miller's criminal history category was
III, which resulted in a guidelines sentencing range of 151 to 188
months. The district court adopted the presentence report and
2
sentenced Miller to a term of 151 months.
B.
After his sentence was affirmed, Miller unsuccessfully sought
28 U.S.C. § 2255 relief on grounds of ineffective assistance of
counsel and misapplication of the sentencing guidelines. He filed
a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2),
based upon a retroactive amendment to U.S.S.G. § 2D1.1, which
provides that waste material used in manufacturing drugs should not
be used to calculate the amount of controlled substance attribut-
able to a defendant. Miller argued that much of the twelve liters
of phenylacetone seized in the raid was waste material.
In opposition, the government stated that the prosecutor had
talked with a DEA chemist who calculated that, based upon the
chemical rations mixed by Miller and McCatty, "a minimum of 1,784
grams of P2P and a theoretical maximum of 4,471 grams of P2P were
producible from the mixture, depending on the skill of the 'cooker'
and the quality of the substance mixed." The chemist informed the
government that it would be difficult to calculate the actual drug
yield.
The government noted that minimum and maximum quantities
calculated by the chemist could result in an offense level as low
as 30 or as high as 32. The government argued that, although
retroactive application of the amendment to § 2D1.1 might result in
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a lower offense level,1 Miller's sentence should not be reduced,
because (1) he and McCatty intended to produce as much P2P as
possible; (2) they negotiated with the undercover agent to obtain
large quantities of precursor chemicals; and (3) Miller's "self-
proclaimed talent" and knowledge of manufacturing techniques
required a lengthy sentence in order to protect the public from
future crimes and to reflect the seriousness of his offense. The
government cited no authority to support its arguments concerning
the defendants' intent or Miller's talent for drug-manufacturing.
Without giving Miller an opportunity to respond, the district
court denied his motion to reduce sentence. The court relied upon
the chemist's calculations and stated that "there was evidence
presented . . . that the defendants frequently professed expertise
as cookers and that they intended to produce as much P2P possible."
The court noted Miller's intent to acquire a large quantity of
precursor chemicals; the need to reflect the seriousness of the
offense, promote respect for the law, and impose just punishment;
and the need to deter criminal conduct by others and protect the
public as factors that militated against a sentence reduction. The
court found that Miller had been "fully capable" of producing more
than 4,000 grams of P2P from the "four gallon mixture" seized in
the raid. Accordingly, the district court denied Miller's motion
to reduce his sentence. The court then denied Miller's motion to
1
Amendment 484, U.S.S.G. App. C, which applies retroactively, modified
application note 1 to § 2D1.1 to provide that "[m]ixture or substance does not
include materials that must be separated from the controlled substance before the
controlled substance can be used." Id.; see also § 1B1.10, p.s. (retroactive
application); Towe, 26 F.3d at 617.
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appeal in forma pauperis ("IFP"), because it determined that he
could not "make a rational argument on the law or the facts to
support his claim for modification."
II.
When a defendant is serving a term of imprisonment, and the
applicable sentencing guideline range has been lowered as a result
of a retroactive amendment, he is eligible for a reduction in his
term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). United
States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). In determining
whether to reduce a sentence under § 3582(c), the district court
must consider applicable sentencing factors under 18 U.S.C.
§ 3553(a) and sentencing commission policy statements. 18 U.S.C.
§ 3582(c)(2).
We review a district court's ruling on a defendant's
§ 3582(c)(2) motion for abuse of discretion, United States v. Shaw,
30 F.3d 26, 29 (5th Cir. 1994), but we review for clear error the
district court's finding of facts under § 3582(c)(2), United States
v. Mimms, 43 F.3d 217, 220 (5th Cir. 1995). A factual finding is
clearly erroneous "only if, although there is evidence to support
it, [the court is] left with the definite and firm conviction that
a mistake has been committed." Id.
A.
Miller argues that the district court erred by failing to hold
an evidentiary hearing on the government's evidence submitted in
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opposition to his motion and by failing to give him an opportunity
to respond to the government's argument. The government concedes
that Miller should have been allowed to respond to its opposition.
In a proceeding pursuant to § 3582(c)(2), the court must give
the defendant notice and an opportunity to respond if it intends to
base its resentencing decision upon evidence not presented at the
original sentencing hearing. United States v. Townsend, 55 F.3d
168, 172 (5th Cir. 1995). In Townsend, the court did not find it
necessary to decide whether § 3582(c)(2) requires a hearing under
these circumstances. Id. Because the district court denied
Miller's motion based upon theories first presented by the
government in opposition to the motion without giving Miller an
opportunity to respond, we remand for further proceedings in light
of Townsend, 55 F.3d at 172.
B.
Miller urges that the district court erred by relying upon the
government's anecdotal report of the prosecutor's conversation with
a chemist who hypothesized the theoretical quantities of drugs that
Miller could have produced based upon reported quantities of
precursor chemicals that were destroyed without being analyzed,
rather than upon the evidence submitted at Miller's original
sentencing hearing. In calculating drug quantities for sentencing
purposes, a court may consider "relevant information without regard
to its admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient indicia of
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reliability to support its probable accuracy." United States v.
Bermea, 30 F.3d 1539, 1576 (5th Cir. 1994), cert. denied,
115 S. Ct. 1113, 1825 (1995); U.S.S.G. § 6A1.3(a). The court may
consider estimates of drug quantities. United States v. Sherrod,
964 F.2d 1501, 1508 (5th Cir.), cert. denied, 113 S. Ct. 832, 834
(1992) and 113 S. Ct. 1367, 1422 (1993).
If waste materials cannot readily be separated from the
controlled substance, the court may use "any reasonable method to
approximate the weight of the mixture or substance to be counted."
§ 2D1.1(c), comment. (n.1). Expert testimony is a reasonable
method of approximating the weight of a substance, and it may be
used in a § 3582(c)(2) proceeding if the drugs upon which the
original sentence was based have been destroyed. Mimms, 43 F.3d at
220-21. The commentary to § 2D1.1 indicates that if the district
court determines that the quantity of drugs seized "does not
reflect the scale of the offense," the court may approximate the
quantity of the controlled substance by considering such factors as
price, financial records, similar transactions by the defendant,
and the size or capability of the drug laboratory. § 2D1.1(c),
comment. (n.12).
The district court may rely upon testimony from a different
proceeding to support its resentencing decision. Townsend, 55 F.2d
at 172. It also may consider the prosecutor's unsworn statements
if other evidence supports the government's arguments. United
States v. Calverley, 11 F.3d 505, 515 (5th Cir. 1993) (direct
criminal appeal), reinstated in relevant part on rehearing en banc,
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37 F.3d 160, 165 (5th Cir. 1994), cert. denied, 115 S. Ct. 1266
(1995). Nevertheless, the "unsworn assertions of the government's
attorney do not provide, by themselves, a sufficiently reliable
basis on which to sentence the defendant." United States v.
Patterson, 962 F.2d 409, 415 (5th Cir. 1992) (direct criminal
appeal); see also United States v. Alfaro, 919 F.2d 962, 966 & n.18
(5th Cir. 1990) (direct criminal appeal holding that factual
findings relative to sentence should not be based upon unsworn
assertions, as such statements "do not bear sufficient indicia of
reliability to support [their] probable accuracy" (internal
quotation omitted)). The district court erred by relying upon the
unsworn hypothetical estimate submitted by the government, because
it was unsupported by other evidence and, thus, did not bear
sufficient indicia of reliability. Patterson, 962 F.2d at 415.
The order denying reduction of sentence is VACATED. This
matter is REMANDED for further appropriate proceedings.2
2
We note the pendency of No. 94-50536, United States v. Allison, rising
the issue of whether a district court abuses its discretion in denying a
§ 3582(c)(2) motion based upon information available at the original sentencing
but not subjected to testing or relied upon by the sentencing court. The
district court, on remand, may wish to consult the Allison decision once it is
issued.
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