## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1983

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas Charles Victor Cole, * * [UNPUBLISHED] Appellant. *

___________ Submitted: August 4, 1998 Filed: September 15, 1998

___________ Befo re McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPAR D ARNOLD, Circuit Judges.

___________ PER CURIAM. Charles Victor Cole appeals from the final judgment entered in the District Court for the We stern District of Arkansas following resentencing after Cole pleaded guilty to manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). In 1996 , autho rities seized an operational methamphetamine laboratory, including precurso r c hemicals, 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 t he district court overruled his-2-

objection. On appeal we remanded upon concluding that the district court ha d erroneously determined drug quantity based o n 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 s e ntenced Cole to 151 months imprisonment and three years supervised release. For rev ersal, Cole again argues that the district court & s drug-quantity determination wa s inc orrect. For the reasons discussed below, we affirm the judgment of the distric t court. At resentencing, the parties agre ed 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 t he 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 b e not credible, and reaffirmed its prior drug-quantity calculation.
We conclude that the district court did not clearly err in calculating the dru g qu antity. See United States v. Adipietro , 983 F.2d 1468, 1472 (8th Cir. 1993 ) (standar dof review). Despite Cole & s argument that the district court again based it s calculation on a theoretical f igure, the record demonstrates the government & s evidence regarding the yield was not theoreti cal, but was based on Cole & s experience as a cook, the seized precursor chemicals, and Cole & s laborat ory, and the court simply discredited Col e & 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 th e controll ed substance”); Adipietro , 983 F.2d at 1472 (findings as to credibility o f witness in making drug quantity determination virtually unassailable on appeal). Accordingly, the judgment is affirmed.-3-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.