IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-10257 

Summary Calendar

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UNITED STATES OF AMERICA

Plaintiff-Appellee,

v.

ROCKY DALE MCKEEVER

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Texas

(3:88-CR-136-H) 

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August 20, 1996

Before KING, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Rocky Dale McKeever appeals the district court’s denial of

his motion for reduction of sentence under 18 U.S.C. § 3582

(c)(2). We vacate the district court’s order and remand.

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*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this opinion should not be published and is not precedent except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.
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I. BACKGROUND

Rocky Dale McKeever (“McKeever”) was charged with conspiracy

to manufacture amphetamine and phenylacetone in violation of 21

U.S.C. § 846, and with possession of more than 500 grams of

phenylacetone with intent to manufacture amphetamine in violation

of 21 U.S.C. § 841(a)(1). Reserving the right to appeal the

denial of his motion to suppress, under Federal Rule of Criminal

Procedure 11(a)(2), McKeever pled guilty to conspiracy and was

sentenced to 216 months of imprisonment, followed by a five-year

term of supervised release.

McKeever challenged the validity of the search warrant on

appeal and a panel of this court vacated the district court’s

denial of the motion to suppress and remanded. United States v.

McKeever, 894 F.2d 712 (5th Cir. 1990). However, we granted

rehearing en banc and vacated the panel’s decision, affirmed the

district court’s denial of the suppression motions, and remanded

the case to the original panel for consideration of the remaining

sentencing issues. United States v. McKeever, 905 F.2d 829 (5th

Cir. 1990)(en banc). McKeever’s conviction was affirmed. United

States v. McKeever, 906 F.2d 129 (5th Cir. 1990), cert. denied,

498 U.S. 1070 (1991). McKeever then filed a motion, pursuant to

18 U.S.C. § 3582(c)(2), to reduce his sentence based on a
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retroactive amendment to the United States Sentencing Guidelines. 

The magistrate judge recommended that relief be denied. The

district court adopted the findings of the magistrate judge and

denied relief. McKeever then filed a motion for reconsideration,

contending that he never received notice of the magistrate

judge’s findings due to a clerical error by the clerk’s office

and he wished to file objections to the magistrate judge’s

findings and recommendation. The district court granted the

motion and McKeever filed objections to the magistrate judge’s

findings and recommendations. The district court entered an

order denying McKeever’s objections. McKeever now appeals.

II. DISCUSSION

McKeever argues that his sentence should be reduced because

two flasks seized from his residence contained waste water which

should not have been used in calculating the total weight of

heroin equivalent for purposes of his sentencing. At the crime

scene, law enforcement officials seized, among other things, two

five-gallon buckets which contained wash solution, small amounts

of amphetamine and cocaine, and two flasks containing 26 liters

of a substance with detectable amounts of phenylacetone. The

total weight of all substances seized was 4,806.812 grams of

heroin equivalent. However, when calculating McKeever’s

sentence, the district judge excluded the wash solution in the

two five-gallon buckets; thus McKeever’s sentence was based on
 

1"Mixture or substance does not include materials that must

be separated from the controlled substance before the controlled

substance can be used. Examples of such materials include. . .

waste water from an illicit laboratory used to manufacture a

controlled substance.” U.S.S.G. App. C, amend. 484 (1993).

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the 26 liters found in the two flasks and the small amounts of

cocaine and amphetamine. Twenty-six liters is equivalent to

26,000 grams under the Measurement Conversion Table of the United

States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1. The 26,000

grams was multiplied by .075 to determine the heroin equivalent. 

U.S.S.G. § 2D1.1., Drug Equivalency Tables. The result is 1950

grams of heroin equivalent. The small amounts of amphetamine and

cocaine found weighed 18.042 grams. Adding these together the

total weight was 1,968.042 grams, the weight used in calculating

McKeever’s sentence.

At trial, the Government’s expert chemist testified that she

analyzed samples of the substance found in the two flasks. She

found that the first sample contained 27% phenylacetone and the

second sample contained 28% phenylacetone. According to her

calculations, the two flasks contained a total of 7,200 grams of

phenylacetone. McKeever requests a reduction in his sentence

based on amendment 484 to the United States Sentencing

Guidelines, which specifies that certain materials, including

waste water from an illicit lab, should be excluded when

calculating the weight of controlled substances seized for

sentencing purposes. U.S.S.G. App. C, amend. 484 (1993).1 
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The Government contends that McKeever has already received

the benefit of this amendment because the district court excluded

the wash solution in the five-gallon buckets. McKeever contends

that the amount of solution in the flasks that was not

phenylacetone should also be excluded as waste water.

Indeed, the chemist did testify that the samples she took

were representative samples and contained 27% and 28%

phenylacetone, respectively. It is unclear whether the other 73%

and 72% are substances which need to be separated from the

phenylacetone before it can be measured for purposes of

calculating the sentence. If so, then this situation is one

which amendment 484 was intended to cover. Because it is unclear

what substances composed the rest of the solution, we vacate the

district court’s order denying McKeever’s motion for reduction of

sentence and remand for further proceedings.

VACATED and REMANDED.