IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20314
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH EUGENE NABORS, a/k/a
Raymond Michael Nabors,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-88-306-1)
- - - - - - - - - -
April 16, 1996
Before JOHNSON, KING, and DEMOSS, Circuit Judges.
PER CURIAM:*
Raymond Michael Nabors appeals the denial of his 18 U.S.C.
§ 3582(c)(2) motion for modification of his term of imprisonment
for manufacturing phenylacetone. Nabors argues: that the
district court failed to distinguish among types of
methamphetamine during sentencing; that the district court should
have based his sentence on production of L-methamphetamine rather
than pure methamphetamine as a matter of lenity and because he
could not have produced pure methamphetamine; that a university
chemist calculated that he could produce only one-quarter pound
*
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that this opinion should not be published and is not precedent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.
No. 95-20314
-2-
of methamphetamine, and a more experienced manufacturer could
produce only 1.27 pounds, from the chemicals he had on hand; that
the district court should have considered retroactive application
of U.S.S.G. § 2D1.11, which provides offense levels for
possession of listed chemicals, when addressing his § 3582
motion; and that § 2D1.1 already takes relevant conduct into
account by penalizing possession of phenylacetone for production
of methamphetamine more seriously than possession for any other
reason.
Regarding the quantity of drugs on which the district court
based Nabors's sentence, we have reviewed the record and the
briefs of the parties and we find no reversible error. We
therefore affirm the denial of Nabors's § 3582 motion essentially
for the reasons given by the district court.
Nabors did not raise his contentions regarding types of
methamphetamine or retroactive application of § 2D1.11 in the
district court. Nor did Nabors present any scientific evidence
to the district court regarding the manufacture of
methamphetamine. We find no plain error regarding retroactive
application of § 2D1.11 or types of methamphetamine that could
have been produced. See United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994)(en banc), cert. denied, 115 S. Ct. 1266
(1995).
Finally, we will not supplement the record on appeal to
include Nabors's alleged expert evidence; Nabors did not present
that evidence to the district court. See United States v.
No. 95-20314
-3-
Okoronkwo, 46 F.3d 426, 435 (5th Cir.), cert. denied, 116 S. Ct.
107 (1995).
AFFIRMED.