1 Local Rule 47.5 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of well-settled

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should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 95-10266

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RICKY HAROLD ROJAS,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

(2:91-CR-26)

____________________________________________________

December 8, 1995

Before POLITZ, Chief Judge, and DAVIS and BENAVIDES, Circuit

Judges.

PER CURIAM:1

Appellant Ricky Rojas appeals the district court's order

denying his motion under 18 U.S.C. § 3582(e)(2) for reduction of

his sentence below the statutory mandatory minimum provided by 21

U.S.C. § 841(b)(1)(A)(v). We affirm.

I.

On January 13, 1992, Ricky Harold Rojas pleaded guilty to

possession with intent to distribute 11 grams of lysergic acid

diethylamide (LSD) in violation of 21 U.S.C. § 841(a)(1). The
2

district court sentenced him to 130 months imprisonment, followed

by three years of supervised release, which was within the

sentencing guideline range of 121 to 151 months. Rojas did not

directly appeal his sentence. 

After amendment 488 to the sentencing guidelines changed the

method of calculating the quantity of LSD under U.S.S.G. § 2D1.1,

Rojas filed a motion for reduction of his sentence pursuant to 18

U.S.C. § 3582(c)(2). He asserted that recalculating the quantity

of LSD pursuant to amendment 488 would result in a guideline range

of 41 to 51 months. The district court granted the motion and

reduced Rojas's sentence to 120 months, the statutory minimum for

possession of LSD in excess of 10 grams. 21 U.S.C. §

841(b)(1)(A)(v). Rojas filed a timely notice of appeal. 

II.

Rojas argues that the district court erred by not sentencing

him within the guideline range calculated under the amendment to

§ 2D1.1(c) and by failing to reduce his sentence below the

statutory mandatory minimum of 120 months. 

Rojas first argues that the new method of calculating LSD

outlined in amendment 488 for U.S.S.G. § 2D1.1 should also be used

for determining the quantity of LSD for 21 U.S.C. § 841. This

argument is foreclosed by United States v. Pardue, 36 F.3d 429, 431

(5th Cir. 1994), cert. denied, 115 S. Ct. 1969 (1995), where a

Fifth Circuit panel held that the method of calculating the amount

of LSD for the purpose of determining the mandatory minimum

sentence under § 841 is not changed by amendment 488. See also,
 

2There exists a circuit split on this issue of LSD

calculation. The Supreme Court has granted writ on this question

in United States v. Neal, 46 F.3d 1405 (7th Cir.), cert. granted

115 S.Ct. 2576 (1995), with oral argument set for December 4,

1995. We, however, are bound by Fifth Circuit precedent until

the Supreme Court reaches a contrary decision.

3

United States v. Whitebird, 55 F.3d 1007 (5th Cir. 1995).2 The

court in Pardue relied in part on the commentary to § 2D1.1(c)

which provides that the new method of calculating the amount of LSD

for guidelines purposes "does not override the applicability of

`mixture or substance' for the purposes of applying any mandatory

minimum sentence (see Chapman; § 5G1.1(b))." § 2D1.1, comment.

(backg'd). The Supreme Court in Chapman v. United States, 500

U.S. 453, 460-62 (1991) held that the weight of the carrier medium

for LSD must be included in calculating the amount for a mandatory

minimum sentence. Section 2D1.1's reference to § 5G1.1(b) refers

to the guideline provision which mandates that if the statutory

mandatory minimum sentence exceeds the maximum guideline range, the

statutory mandatory minimum becomes the guideline range. 

In this case, the statutory mandatory minimum sentence of 120

months exceeds the maximum guideline range of 51 months and, thus,

the district court properly reduced Rojas's sentence to the

statutory mandatory minimum sentence of 120 months. 

Rojas next argues that the rule of lenity should apply since

amendment 488 created an ambiguity in application of § 841 and §

2D1.1. We do not find any ambiguity in these two sections that

would warrant applying the rule of lenity under United States v.

Granderson, 114 S.Ct. 1259, 1267 (1994). See also, United States

v. Mueller, 27 F.3d 494, 496 (10th Cir. 1994). 
 

3 Although it has no significance to this case, the

presentence report and the plea agreement erroneously stated that

the maximum sentence was 20 years rather than the correct maximum

sentence of life. 21 U.S.C. § 841(b)(1)(A)(v).

 

4After the en banc decision of United States v. Johnson, 1

F.3d 296 (5th Cir. 1993), Rule 11 violations are all treated

under a harmless error analysis of whether the omission affected

substantial rights of the defendant. At the time of the plea

hearing, the defendant was facing a sentence of 121 to 151 months

under the sentencing guidelines. It is unlikely that knowledge

of a mandatory minimum sentence of 120 months would have affected

his plea.

4

Rojas finally argues that the statutory mandatory minimum

sentence should not apply because he was not notified that he was

subject to a mandatory minimum. The district judge did not inform

him of a statutory mandatory minimum during the plea hearing; the

presentence report stated that the minimum sentence was not

applicable (probably reflecting that the sentencing guideline

minimum was higher than the statutory minimum); and the plea

agreement indicated only a maximum sentence of 20 years. 

The record indicates that Rojas was not informed of a

mandatory minimum sentence of 10 years.

3 Failure of the district

court to advise the defendant of a statutory mandatory minimum

sentence during the plea hearing is a Rule 11 violation which is

usually considered in a direct appeal to vacate the guilty plea.4

Rojas, however, does not ask to withdraw his guilty plea. Rather,

he argues in this motion to reduce his sentence under § 3582 that,

because the district court failed to advise him of the statutory

mandatory minimum sentence, his due process rights were violated

and the minimum sentence does not apply. 

For due process purposes, § 841(b) provided notice to Rojas of

the mandatory minimum sentence to which he was exposed for his §
5

841(a) violation. The only arguable complaint Rojas has is that

the district court violated Rule 11. For this alleged violation he

might seek to set aside his guilty plea under § 2255. This he has

not done. The district court correctly denied the only relief

Rojas seeks in this § 3582 motion to reduce sentence.

For the above reasons, we affirm the district court's ruling.

AFFIRMED