United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1983

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas

Charles Victor Cole, *

* [UNPUBLISHED]

Appellant. *

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 Submitted: August 4, 1998

 Filed: September 15, 1998

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Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

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PER CURIAM.

Charles Victor Cole appeals from the final judgment entered in the District Court

for the Western District of Arkansas following resentencing after Cole pleaded guilty

to manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). In 1996,

authorities seized an operational methamphetamine laboratory, including precursor

chemicals, and actual methamphetamine from Cole&s residence. Based on the seized

chemicals and drugs, the presentence report calculated a total of 177.66 grams of actual

methamphetamine. Cole challenged this calculation, but the district court overruled his
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objection. On appeal we remanded upon concluding that the district court had

erroneously determined drug quantity based on what an average cook could yield from

the seized chemicals rather than what Cole could have produced. See United States v.

Cole, 125 F.3d 654, 655 (8th Cir. 1997) (per curiam). On remand, the district court

sentenced Cole to 151 months imprisonment and three years supervised release. For

reversal, Cole again argues that the district court&s drug-quantity determination was

incorrect. For the reasons discussed below, we affirm the judgment of the district

court.

At resentencing, the parties agreed to proceed on the testimony presented at the

first sentencing. The testimony is recounted in our prior opinion, and we will not repeat

it here except to note that government witnesses testified 1 gram of the seized precursor

chemical would yield .75 of a gram of methamphetamine given the seized evidence and

Cole&s experience as a methamphetamine cook, while Cole testified that he had never

yielded such an amount. The district court credited the government&s evidence, found

Cole&s testimony to be not credible, and reaffirmed its prior drug-quantity calculation.

We conclude that the district court did not clearly err in calculating the drug

quantity. See United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993)

(standard of review). Despite Cole&s argument that the district court again based its

calculation on a theoretical figure, the record demonstrates the government&s evidence

regarding the yield was not theoretical, but was based on Cole&s experience as a cook,

the seized precursor chemicals, and Cole&s laboratory, and the court simply discredited

Cole&s contrary testimony. See U.S. Sentencing Guidelines Manual § 2D1.1,

comment. (n.12) (1997) ( “[w]here there is no drug seizure or the amount seized does

not reflect the scale of the offense, the court shall approximate the quantity of the

controlled substance”); Adipietro, 983 F.2d at 1472 (findings as to credibility of

witness in making drug quantity determination virtually unassailable on appeal).

Accordingly, the judgment is affirmed.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.