* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 6 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. PAUL A. HARRIS, Defendant - Appellant. No. 99-6115 (D.C. No. 98-CR-57) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. ** Defendant-Appellant Paul A. Harris appeals from the sentence imposed based upon his conviction of conspiracy to manufacture methamphetamine, 21 U.S.C. § 846. Mr. Harris was sentenced, after an e videntiary hearing, to 121 months imprisonment and five years supervised relea se. On appeal, Mr. Harris contends that the district court should have applie d the guidelines pertaining to1 The trial court found Mr. Harris to be eligible fora two level “Safety

Valve” adjustment under U.S.S.G. § 5C1.2. Thus, th e decision in this case will determine whether Mr. Harris ultimately has an offe nse level of 30 or 32. - 2 - nominal methamphetamine, rather than methamphetamin e (actual). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U. S.C. § 3742(a) and affirm. Mr. Harris was arrested in a motel room containing chemicals and accouterments used in the manufacture of methamphet amine, though no completed samples of the drug were discovered. Mr. Harris admitted to the police that he had been manufacturing the drug, and told t hem the quantity of raw materials he had used. The trial court’s estimates of quantity are based in part on these admissions. The guidelines direct the sentencing court to use t he greater of the offense levels determined either by the total weight of the mixture or substance containing methamphetamine (“nominal”), or the weight of the a mphetamine itself contained in the mixture, based on its purity (“actual”). Se e USSG § 2D1.1(c) note B. The nominal amount produced was estimated to be between 640 and 840 grams, resulting in an offense level of 32. Mr. Ha rris does not contest this calculation. Based on the evidence of the amount o f materials Mr. Harris used, and assuming a purity level of 82-83%, the actual a mount of pure amphetamine produced was estimated to be approximately 708 gram s, resulting in an offense level of 34. 1 Mr. Harris challenges this latter amount, contend ing that the purity- 3 -

of the substance he produced was unknown, and that the samples found in the motel room that were analyzed were found to be “sub stantially less than 80% concentration of methamphetamine.” The guidelines direct the sentencing court to estim ate quantity if necessary. U.S.S.G. § 2D1.1 cmt. 12 (“Where there is no drug s eizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.”). The sentencing cou rt’s factual findings concerning quantity are reviewed by this court for clear error . See United States v. Lopez , 100 F.3d 113, 120 (10th Cir. 1996). The governmentmust prove the quantity of drugs for sentencing purposes by a preponderance of the evidence. See United States v. Sloan , 65 F.3d 861, 865 (10th Cir. 1995). In this case, the district court relied on the test imony of an Oklahoma City Police Department detective to establish an approxi mation of actual methamphetamine produced. The detective testified that based on his experience, as well as conversations with chemists from the DEAand Oklahoma State Bureau of Investigation, the materials Mr. Harris admitted having possessed could produce approximately 864 grams of 82-83% pure meth amphetamine, or approximately 708 grams of actual methamphetamine. He considered this to be a conservative estimate. At the time of his testimony, the detective had participated in the- 4 -

investigation of between 200-300 methamphetamine la b sites and had spent over five years with the DEA Task Force in Oklahoma City . He stated that he did not recall ever having seen a finished batch of methamp hetamine that was below 80 percent pure, and that most of the batches he had s een were in the high 80s up to 98 percent pure. Given the evidence before it, the district court di d not commit clear error. The fact that the only samples found in Mr. Harris’ motel room were substantially below 80 percent pure is not dispositive. The dete ctive testified that the samples were consistent with waste material left over from the manufacturing process, and would not be indicative of the purity of the finish ed product. Finally, we note that even at a significantly lower purity than the already conservative estimate of 82-83% purity, Mr. Harris would still fall into the range specifying an offense level of 34. AFFIRMED.

Entered for the Court Paul J. Kelly, Jr. Circuit Judge