United States v. Sewell

                IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                No. 95-40247

                              Summary Calendar



UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,

                                    versus

JERRY WAYNE SEWELL, SR.,
                                               Defendant-Appellant.




           Appeal from the United States District Court
                 for the Eastern District of Texas
                           (1:89-CR-44-1)


                              January 17, 1996

Before HIGGINBOTHAM, DUHE’, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     On November 15, 1989, a jury convicted Jerry Wayne Sewell,

along   with   four   co-defendants,    of   three   counts   involving   1)

conspiracy to manufacture phenylacetone (P2P) and to manufacture,

to possess with intent to distribute, and to distribute amphetamine

and methamphetamine; 2) manufacturing P2P; and, 3) manufacturing a

substance containing a detectable amount of methamphetamine.              The

district court sentenced Sewell to 360 months imprisonment on each

count, such    terms   to    run   concurrently.     This   court   affirmed

    *
       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this opinion should not be published and is not precedent except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.
Sewell's conviction and sentence.             United States v. Sherrod, 964

F.2d 1501 (5th Cir. 1992), cert. denied, 113 S.Ct. 1367 (1993).

     After    his   conviction       became     final,   the     United   States

Sentencing Guideline Commission adopted Amendment 484 to U.S.S.G.

§ 2D1.1, which clarified the proper method for calculating the

amount of controlled substance in a mixture.                   On the basis of

Amendment 484, which applies retroactively, Sewell and his four co-

defendants sought resentencing pursuant to 18 U.S.C. § 3582(c)(2),

alleging that the district court had miscalculated the amount of

controlled substances at the original sentencing hearing.

     The    district   court    recomputed      the    amount    of   controlled

substances,    which   had     the   effect     of    lowering    Sewell's   co-

defendant's offense levels by six levels.                The district court,

however, refused to lower Sewell's base offense level because it

found that Sewell was a career offender pursuant to § 4B1.1.

Applying § 4B1.1, the district court concluded that Sewell's

offense level was 34, which yielded a guideline sentence of 262 to

327 months.    Based on the guideline, the district court reduced

Sewell's sentence to 294 months.

     On appeal, Sewell argues that the district court miscalculated

the amount of controlled substances to be used in determining his

sentence.    Sewell's arguments are unavailing, however.              The amount

of controlled substances was irrelevant to Sewell's sentence.                The

district court sentenced Sewell on the basis of the career offender

provision of § 4B1.1, the application of which Sewell does not

challenge on appeal.


                                       2
We AFFIRM the district court's sentencing order.




                           3