IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50414
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MORRIS ALLEN PRITCHETT,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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(88-CR-87-3)
February 23, 1996
Before GARWOOD, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
The appellant, Morris Allen Pritchett (“Pritchett”), appeals
the district court’s denial of his motion to modify his sentence
under 18 U.S.C. § 3582(C.)(2).
In 1989, Pritchett pleaded guilty to conspiring to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Pursuant to U.S.S.G. § 2D1.1, Pritchett was sentenced to 180 months
confinement and a 60-month supervised release term. We 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this opinion should not be published and is not precedent except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.
his sentence in United States v. Pritchett, No. 89-1780 (Dec. 17,
1990) (per curiam).
In 1994, Pritchett filed his pro se motion under 18 U.S.C. §
3582(c)(2), arguing that his sentence should be modified in light
of the retroactive amendments to U.S.S.G. § 2D1.1. The district
court denied his motion, concluding that the amended guidelines
were inapplicable to Pritchett’s sentence. Alternatively, the
court denied Pritchett relief after considering that his relevant
conduct in his overall participation in the manufacturing
conspiracy would have justified a higher sentence than he
originally received.
DISCUSSION
Section 3582(c)(2) authorizes a district court to reduce a
sentence when the guideline range applicable to the defendant has
been lowered by a retroactive amendment. United States v. Towe, 26
F.3d 614, 616 (5th Cir. 1994). Section 3582(c)(2) provides that:
in the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that has
subsequently been lowered . . . the court may reduce the
term of imprisonment, after considering the factors set
forth in Section 3553(a) to the extent that they are
applicable, if such reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. §3582(c)(2) (1990). The Sentencing Commission gave
Amendment 484 retroactive effect. Shaw, 30 F.3d 168 (5th Cir.
1995); see also U.S.S.G. § 1B1.10(d), p.s. (Nov. 1993).
The decision to reduce a sentence is discretionary; therefore,
we review the district court’s determination for abuse of
discretion. United States v. Townsend, 55 F.3d 168 (5th Cir.
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1995). We review the district court’s factual findings for clear
error. United States v. Mimms, 43 F.3d 217, 220 (5th Cir. 1995).
In 1993, the Sentencing Guidelines Commission amended U.S.S.G.
§ 2D1.1, clarifying what materials must be excluded from controlled
substances in calculating the weight at sentencing. Specifically,
the commentary to Section 2D1.1 was amended 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 reasonable method to approximate
the weight of the mixture or substance to be counted.
U.S.S.G. App. C., Amendment 484 (1993).
The district court rejected Pritchett’s argument that his
sentence should be reduced under Amendment 484 because wastewater
was used in calculating his base offense level:
Although there is no indication of the purity of the
drugs involved, there is additionally nothing to indicate
that the substances seized during the various searches
arising out of this case were merely wastewater.
District Court Order at 1. The district court erred in concluding
that, because the substance at issue was not “merely wastewater,”
Pritchett’s sentence could not be reduced. Under the amended
guideline, only the actual weight of the controlled substance is
applied in calculating the base offense level, not the aggregate
weight of any mixture as required by the section in effect at the
time of Pritchett’s sentencing. The lab report identified the
liquid tested as “containing” phenylacetone, a controlled
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substance. No evidence before the court supported an inference
that the tested substance was usable phenylacetone. Amendment 484
specifically provides that a court may use any “reasonable method
to approximate” the applicable weight. Here, the court relied on
a test conducted in November 1988, when purity of the substance was
irrelevant, since any amount of liquid seized was applicable to the
calculation of the base offense level prior to the 1993 amendments
to Section 2D1.1. Thus, nothing in the lab reports indicates the
ratio of controlled substance to wastewater or precursor chemicals.
The court erred in relying on test results which give no indication
of the percentage of purity.
The district court properly denied Pritchett’s motion in its
alternative holding, however. Pritchett’s overall conduct in the
manufacturing conspiracy was sufficient grounds to deny a motion
under 3582(c)(2). Townsend, 55 F.3d at 171. In addition, the
district court was authorized to consider the factors in 18 U.S.C.
§ 3553(a).
In its order, the district court cited the factors set forth
in Section 3553 and concluded:
The defendant was a part of a very large conspiracy
involving a number of Defendants and a large amount of
methamphetamine. One of Defendant’s co-defendants, Doug
Smith, testified at co-defendant Roy Leach’s trial that
as part of the conspiracy, he had manufactured
approximately 20 pounds of methamphetamine and 96 to 100
pounds of phenylacetone. Transcript, pp. 308 and 368.
Were the court to consider these amounts, Defendant’s
sentence would be even higher. The Court, therefore,
declines to exercise its discretion to lower Defendant’s
sentence.
District Court Order at 3.
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Pritchett’s argument that the court could not consider
evidence from the Leach trial is meritless. A court may consider
testimony from other proceedings. Townsend, 55 F.3d at 172. The
evidence considered by the district court was contained in the
original presentence report, so no notice issue is raised.
Townsend, 55 F.3d at 172. The possibility of a higher sentence and
the nature of the offense both justify the court’s decision.
Pritchett’s other factual contentions have already been considered
and disposed of by this court on his direct appeal.
Accordingly, the district court’s denial of Pritchett’s
Section 3582(c)(2) motion is AFFIRMED.
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