* Local Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that rule, the court has determined that this

opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-20072

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WILLIAM D. MILLER,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(CR H 89 200 2)

_________________________

August 10, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

William Miller appeals the denial of his motion for reduction

of sentence under 18 U.S.C. § 3582(c)(2). We vacate and remand.
2

I.

A.

Miller pleaded guilty to aiding and abetting the possession of

phenylacetone with the intent to manufacture methamphetamine. At

his rearraignment hearing, Miller agreed that he and his codefendant, William McCatty, had negotiated to teach an undercover

officer how to manufacture methamphetamine in exchange for "$5,000

in cash and a large amount of precursory chemicals." The methamphetamine lab was raided while the "cook" was in progress, and

agents seized twelve liters of phenylacetone or P2P, a precursor

product of methamphetamine. After a Drug Enforcement Administration ("DEA") chemist measured and sampled the phenylacetone and

other chemicals, the remaining drugs were destroyed.

The compensation agreed upon by Miller and the undercover

officer was $5,000, laboratory glassware with a 22-liter capacity,

110 pounds of phenylacetic acid, 50 pounds of sodium acetate, and

25 gallons of acetic anhydride. Miller objected that his offense

level should not be based upon the precursor chemicals that he had

bargained to receive in payment, but the government pointed out

that those quantities had not been used to calculate the offense

level.

Based upon the twelve liters of P2P seized in the raid, the

probation officer determined that Miller's base and adjusted

offense levels were 32. Miller's criminal history category was

III, which resulted in a guidelines sentencing range of 151 to 188

months. The district court adopted the presentence report and
3

sentenced Miller to a term of 151 months.

B.

After his sentence was affirmed, Miller unsuccessfully sought

28 U.S.C. § 2255 relief on grounds of ineffective assistance of

counsel and misapplication of the sentencing guidelines. He filed

a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2),

based upon a retroactive amendment to U.S.S.G. § 2D1.1, which

provides that waste material used in manufacturing drugs should not

be used to calculate the amount of controlled substance attributable to a defendant. Miller argued that much of the twelve liters

of phenylacetone seized in the raid was waste material.

In opposition, the government stated that the prosecutor had

talked with a DEA chemist who calculated that, based upon the

chemical rations mixed by Miller and McCatty, "a minimum of 1,784

grams of P2P and a theoretical maximum of 4,471 grams of P2P were

producible from the mixture, depending on the skill of the 'cooker'

and the quality of the substance mixed." The chemist informed the

government that it would be difficult to calculate the actual drug

yield.

The government noted that minimum and maximum quantities

calculated by the chemist could result in an offense level as low

as 30 or as high as 32. The government argued that, although

retroactive application of the amendment to § 2D1.1 might result in
 

1 Amendment 484, U.S.S.G. App. C, which applies retroactively, modified

application note 1 to § 2D1.1 to provide that "[m]ixture or substance does not

include materials that must be separated from the controlled substance before the

controlled substance can be used." Id.; see also § 1B1.10, p.s. (retroactive

application); Towe, 26 F.3d at 617.

4

a lower offense level,1 Miller's sentence should not be reduced,

because (1) he and McCatty intended to produce as much P2P as

possible; (2) they negotiated with the undercover agent to obtain

large quantities of precursor chemicals; and (3) Miller's "selfproclaimed talent" and knowledge of manufacturing techniques

required a lengthy sentence in order to protect the public from

future crimes and to reflect the seriousness of his offense. The

government cited no authority to support its arguments concerning

the defendants' intent or Miller's talent for drug-manufacturing.

Without giving Miller an opportunity to respond, the district

court denied his motion to reduce sentence. The court relied upon

the chemist's calculations and stated that "there was evidence

presented . . . that the defendants frequently professed expertise

as cookers and that they intended to produce as much P2P possible."

The court noted Miller's intent to acquire a large quantity of

precursor chemicals; the need to reflect the seriousness of the

offense, promote respect for the law, and impose just punishment;

and the need to deter criminal conduct by others and protect the

public as factors that militated against a sentence reduction. The

court found that Miller had been "fully capable" of producing more

than 4,000 grams of P2P from the "four gallon mixture" seized in

the raid. Accordingly, the district court denied Miller's motion

to reduce his sentence. The court then denied Miller's motion to
5

appeal in forma pauperis ("IFP"), because it determined that he

could not "make a rational argument on the law or the facts to

support his claim for modification."

II.

When a defendant is serving a term of imprisonment, and the

applicable sentencing guideline range has been lowered as a result

of a retroactive amendment, he is eligible for a reduction in his

term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). United

States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). In determining

whether to reduce a sentence under § 3582(c), the district court

must consider applicable sentencing factors under 18 U.S.C.

§ 3553(a) and sentencing commission policy statements. 18 U.S.C.

§ 3582(c)(2).

We review a district court's ruling on a defendant's

§ 3582(c)(2) motion for abuse of discretion, United States v. Shaw,

30 F.3d 26, 29 (5th Cir. 1994), but we review for clear error the

district court's finding of facts under § 3582(c)(2), United States

v. Mimms, 43 F.3d 217, 220 (5th Cir. 1995). A factual finding is

clearly erroneous "only if, although there is evidence to support

it, [the court is] left with the definite and firm conviction that

a mistake has been committed." Id.

A.

Miller argues that the district court erred by failing to hold

an evidentiary hearing on the government's evidence submitted in
6

opposition to his motion and by failing to give him an opportunity

to respond to the government's argument. The government concedes

that Miller should have been allowed to respond to its opposition.

In a proceeding pursuant to § 3582(c)(2), the court must give

the defendant notice and an opportunity to respond if it intends to

base its resentencing decision upon evidence not presented at the

original sentencing hearing. United States v. Townsend, 55 F.3d

168, 172 (5th Cir. 1995). In Townsend, the court did not find it

necessary to decide whether § 3582(c)(2) requires a hearing under

these circumstances. Id. Because the district court denied

Miller's motion based upon theories first presented by the

government in opposition to the motion without giving Miller an

opportunity to respond, we remand for further proceedings in light

of Townsend, 55 F.3d at 172.

B.

Miller urges that the district court erred by relying upon the

government's anecdotal report of the prosecutor's conversation with

a chemist who hypothesized the theoretical quantities of drugs that

Miller could have produced based upon reported quantities of

precursor chemicals that were destroyed without being analyzed,

rather than upon the evidence submitted at Miller's original

sentencing hearing. In calculating drug quantities for sentencing

purposes, a court may consider "relevant information without regard

to its admissibility under the rules of evidence applicable at

trial, provided that the information has sufficient indicia of
7

reliability to support its probable accuracy." United States v.

Bermea, 30 F.3d 1539, 1576 (5th Cir. 1994), cert. denied,

115 S. Ct. 1113, 1825 (1995); U.S.S.G. § 6A1.3(a). The court may

consider estimates of drug quantities. United States v. Sherrod,

964 F.2d 1501, 1508 (5th Cir.), cert. denied, 113 S. Ct. 832, 834

(1992) and 113 S. Ct. 1367, 1422 (1993).

If waste materials cannot readily be separated from the

controlled substance, the court may use "any reasonable method to

approximate the weight of the mixture or substance to be counted."

§ 2D1.1(c), comment. (n.1). Expert testimony is a reasonable

method of approximating the weight of a substance, and it may be

used in a § 3582(c)(2) proceeding if the drugs upon which the

original sentence was based have been destroyed. Mimms, 43 F.3d at

220-21. The commentary to § 2D1.1 indicates that if the district

court determines that the quantity of drugs seized "does not

reflect the scale of the offense," the court may approximate the

quantity of the controlled substance by considering such factors as

price, financial records, similar transactions by the defendant,

and the size or capability of the drug laboratory. § 2D1.1(c),

comment. (n.12).

The district court may rely upon testimony from a different

proceeding to support its resentencing decision. Townsend, 55 F.2d

at 172. It also may consider the prosecutor's unsworn statements

if other evidence supports the government's arguments. United

States v. Calverley, 11 F.3d 505, 515 (5th Cir. 1993) (direct

criminal appeal), reinstated in relevant part on rehearing en banc,
 

2 We note the pendency of No. 94-50536, United States v. Allison, rising

the issue of whether a district court abuses its discretion in denying a

§ 3582(c)(2) motion based upon information available at the original sentencing

but not subjected to testing or relied upon by the sentencing court. The

district court, on remand, may wish to consult the Allison decision once it is

issued.

8

37 F.3d 160, 165 (5th Cir. 1994), cert. denied, 115 S. Ct. 1266

(1995). Nevertheless, the "unsworn assertions of the government's

attorney do not provide, by themselves, a sufficiently reliable

basis on which to sentence the defendant." United States v.

Patterson, 962 F.2d 409, 415 (5th Cir. 1992) (direct criminal

appeal); see also United States v. Alfaro, 919 F.2d 962, 966 & n.18

(5th Cir. 1990) (direct criminal appeal holding that factual

findings relative to sentence should not be based upon unsworn

assertions, as such statements "do not bear sufficient indicia of

reliability to support [their] probable accuracy" (internal

quotation omitted)). The district court erred by relying upon the

unsworn hypothetical estimate submitted by the government, because

it was unsupported by other evidence and, thus, did not bear

sufficient indicia of reliability. Patterson, 962 F.2d at 415.

The order denying reduction of sentence is VACATED. This

matter is REMANDED for further appropriate proceedings.2