UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30374
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
JERRY JOE TUBBLEVILLE,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
(CR 89 269 H)
August 25, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
A jury found Jerry Joe Tubbleville guilty of conspiring to
manufacture amphetamine, conspiring to distribute amphetamine
within 1,000 feet of a school, several substantive offenses
*
Local Rule 47.5 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should not be published.
involving the possession and distribution of amphetamine,
endangering human life while manufacturing a controlled substance,
and carrying and using firearms during the commission of a drug-
trafficking offense. The district court sentenced Tubbleville to
272 months of imprisonment and six years of supervised release.
Tubbleville filed a direct appeal. This Court affirmed his
conviction. He also filed a motion pursuant to 28 U.S.C. § 2255,
which was denied by the district court. This Court dismissed his
appeal of the denial for want of prosecution. Tubbleville then
filed another § 2255 motion, which the district court dismissed as
an abuse of the § 2255 procedure, pursuant to Rule 9 of the Rules
Governing § 2255 cases. This Court affirmed that dismissal.
Tubbleville, proceeding pro se, filed a motion to modify an
imposed term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2).
He argued, among other things, that Amendment 484 to the
Guidelines, regarding determination of the quantity of drugs on
which to base a sentence, excludes materials that must be separated
from a controlled substance before the controlled substance can be
used. Tubbleville asserted that his sentence should be reduced
because it was based on a drug amount derived from the amount of
unprocessed chemicals seized at the laboratory. The district court
denied the motion, concluding that Amendment 484 was inapplicable
because it amended commentary to U.S.S.G. § 2D1.1 and the quantity
of drugs attributed to Tubbleville was determined using commentary
to § 2D1.4.
OPINION
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Tubbleville argues that the district court erred when it
denied his § 3582(c)(2) motion, raising his district court argument
that his sentence should be reduced pursuant to Amendment 484.
Reduction pursuant to § 3582(c)(2) is discretionary, and this Court
reviews a district court's refusal to lower a defendant's sentence
for abuse of discretion. United States v. Shaw, 30 F.3d 26, 28
(5th Cir. 1994). However, this Court reviews a district court's
factual findings made in a § 3582(c)(2) proceeding for clear error.
United States v. Mimms, 43 F.3d 217, 220 (5th Cir. 1995).
When the Sentencing Commission lowers a sentencing range after
a defendant has been sentenced, the district court may reduce the
term of imprisonment on motion of the defendant or the Director of
the Bureau of Prisons or sua sponte. 18 U.S.C. § 3582(c)(2). A
§ 3582(c)(2) motion applies only to guideline amendments that
operate retroactively, as listed in the policy statement
§ 1B1.10(d). United States v. Miller, 903 F.2d 341, 349 (5th Cir.
1990). Amendment 484 is one of the listed amendments. Tubbleville
relies on application note 1 of § 2D1.1, which was amended
retroactively by Amendment 484. Effective November 1993, Amendment
484 changed application note 1 of § 2D1.1 to provide:
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 the fiberglass in a
cocaine/fiberglass bonded suitcase, beeswax in
a cocaine/beeswax statue, and waste water from
an illicit laboratory used to manufacture a
controlled substance. If such material cannot
readily be separated from the mixture or
substance that appropriately is counted in the
Drug Quantity Table, the court may use any
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reasonable method to approximate the weight of
the mixture or substance to be counted.
Amendment 484, U.S.S.G. App. C; see United States v. Towe, 26 F.3d
614, 616-17 (5th Cir. 1994). Chemicals seized before the end of
processing are likewise excluded from consideration at sentencing.
Amendment 484.
The sentencing court adopted the Presentence Report (PSR).
The PSR indicated that 1.9 kilograms of amphetamine were seized at
the lab site and that, based on the amount of precursor chemicals
seized, the lab could have produced another 23.64 kilograms of
amphetamine. These amounts were combined, and a total of 25.5
kilograms of amphetamine was reached. That amount was doubled
pursuant to § 2D1.3(a)(2)(B), for nearness to a school, to
calculate Tubbleville's base offense level.
Tubbleville was sentenced on April 4, 1990. Commentary to the
1989 version of § 2D1.4, applicable when Tubbleville was sentenced
(see United States v. McCaskey, 9 F.3d 368, 372 (5th Cir. 1993),
cert. denied, 114 S. Ct. 1565 (1994)), provided that, when the
amount of drugs seized does not reflect the scale of the offense,
the court shall approximate the quantity of the controlled
substance. § 2D1.4 comment. (n.2). In making this determination,
the court may consider the size or capability of any laboratory
involved. Id.
Section 2D1.4 was deleted and consolidated with the guidelines
applicable to the underlying substantive offenses. Application
Note 2 to former § 2D1.4 is identical to a portion of Application
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Note 12 of current § 2D1.1, the guideline applicable to the
underlying substantive offense of manufacture of methamphetamine.
As noted above, the sentencing court concluded that Amendment
484 was inapplicable because it amended commentary to § 2D1.1 and
the quantity of drugs attributed to Tubbleville was determined
using commentary to § 2D1.4.
Although former § 2D1.4 was not mentioned, this Court held in
United States v. Taylor, No. 94-40438 (5th Cir. Sept. 16, 1994)
(unpublished), that Amendment 484 was inapplicable to Taylor's
sentence because his sentence was not based on a "mixture or
substance" containing waste products or unusable chemicals, which
Amendment 484 proscribes. Instead, Taylor's sentence was based on
an approximated amount of precursor chemicals (per § 2D1.1 comment.
(n.12)) which contained no amount of a controlled substance. Given
this Court's holding in Taylor, the district court did not abuse
its discretion when it denied Tubbleville's § 3582(c)(2) motion.
AFFIRMED.
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