UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 95-20238
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UNITED STATES OF AMERICA,
Plaintiff-Apellee,
VERSUS
GERALD FRANCIS MCKNIGHT,
Defendant-Appellant.
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Appeal from the United States District Court
For the Southern District of Texas
(CR-H-90-129)
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December 19, 1995
Before Politz, Chief Judge, Davis and Benavides, Circuit Judges
PER CURIAM:1
McKnight appeals the district court's refusal to reduce his
term of imprisonment under 18 U.S.C. § 3582(c)(2). We affirm.
I.
McKnight was convicted of being a felon in possession of a
firearm (Count 1) and of carrying and using a deadly weapon in
relation to a drug offense (Count 2). His sentence was 210 months
for Count 1 under the United States Sentencing Guidelines and the
statutory minimum, 60 months under Count 2. In sentencing McKnight
1
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that this opinion should not be published.
for Count 1, the court used the 3,666.44 milliliters of
metamphetamine solution to arrive at his base offense level of 34.
Since McKnight was sentenced, the sentencing guidelines have
been amended to exclude "materials that must be separated from the
controlled substance before the controlled substance can be used."
U.S.S.G. App. C, amend. 484 (Nov. 1994). The metamphetamine
possessed by McKnight was dissolved in waste water and was only one
percent of the solution. As a result, the level of metamphetamine
for which he can be sentenced is now only one percent of the amount
for which he was actually sentenced. Therefore, McKnight contends,
his sentence for Count 1 should be reduced at least to the
statutory minimum of 180 months to reflect the new method of
calculating the amount of metamphetamine in his possession. The
district court refused to reduce McKnight's sentence.
II.
This court reviews the district court's ruling on a § 3582
(c)(2) motion for abuse of discretion. United States v. Shaw, 30
F.3d 26, 29 (5th Cir. 1994). The district court sentenced McKnight
under the guidelines for being a felon in possession of a firearm
in § 2K2.1 but could have sentenced McKnight as a career criminal
under § 4B1.4 to the same or an even higher sentence. See U.S.S.G.
§§ 2k2.1, 4B1.4 (Nov. 1990).2 Because McKnight could have received
2
McKnight was sentenced to 210 months under the
guidelines for sentencing a felon in possession of a firearm.
The court could have sentenced McKnight under § 4B1.4 of the
guidelines, in which case, McKnight's offense level would have
been at least 34 and his criminal history category would have
been at least IV. See U.S.S.G. § 4B1.4(b)(3)(A), § 4B1.4(c)(3).
With this offense level and criminal history, 210 months is the
2
the same sentence he is now serving even if the court had used the
new method of calculating the amount of metamphetamine, the
district court did not abuse its discretion when it refused to
reduce McKnight's sentence.
AFFIRMED
very least that the district court could have sentenced McKnight
without making a downward departure.
3