IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-11368

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RONALD BOWMAN ARNOLD,

also known as Bo Arnold,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

July 27, 1998

Before POLITZ, Chief Judge, WISDOM and WIENER, Circuit Judges.

PER CURIAM:

In this direct criminal appeal of his sentence only,

Defendant-Appellant Ronald Bowman Arnold challenges the district

court’s method of calculating the amount of a “listed” chemical

that he possessed. Finding no reversible error, we affirm.

I

FACTS AND PROCEEDINGS

Arnold pleaded guilty to an indictment charging that, from

January 1997 throu gh September 3, 1997, he knowingly and

intentionally possessed benzyl chloride, a list II chemical under1 21 U.S.C. § 802(35)(c) (1994).

2 21 U.S.C. § 841(d)(1) (1994).

3 See U.S. S ENTENCING G UIDELINES M ANUAL § 2D1.11(d)(4) (1997).

4 Neither Arnold’s written ob jections to the PSR nor the

probation office’s response to such objections are included in the

r ecord; however, the contents of such items were outlined dur ing

the sentencing hearing.

2 21 U.S.C. § 802, 1 with the intent to manufacture a controlled

substance, phenyl acetone, in violation of 21 U.S.C. § 841(d)(1). 2

The factual resumé provided that, pursuant to his purchase order,

one liter (1,100 grams) of benzyl chloride was delivered to

Arnold’s home in March 1997. After Arnold ordered a second liter

(1,100 grams) of benzyl chloride in September 1997, agents of the

Drug Enforcement Administration (DEA) were notified. The agents

observed the delivery of the second bottle of benzyl chloride, and

Arnold was arrested.

The presentence investigation report (PSR) recommended a base

offense level of 24 b ased on Arnold’s possession of a total of

2,200 grams of benzyl chloride. 3 Arnold objected, arguing that

althou gh he had ordered two different liters of benzyl chloride

during severa l months, he had converted the first liter into

approximately 500 grams of benzyl cyanide. 4 At the sentencing

hearing he argued that at the time of his arr est he was in

possession of 1,100 grams of benzyl chloride, a List II chemical,

and 500 grams of benzyl cyanide, a List I chemical. Arnold

insisted that, under the U. S. Sentencing Guidelines (the

“Guidelines”), when an offense involves both List I and List II3

che micals, “you look at whichever chemical provides the highest

base offense level in order to determine what the base offense

level should be.” Arnold surmised that, because 500 grams of

benzyl cyanide had a corresponding base offense level of 20 and

1,100 grams o f benzyl chloride also had a corresponding base

offense level of 20, the correct base offense level was 20, the

highest base offense level corresponding to the chemicals present

on the date of his arrest.

The Government countered by addressing the testimony of one of

the DEA agents involved in Arnold’s arrest. The agent testified

that, at the time of Arnold’s arrest, all that remained of the

first liter of benzyl chloride was a small portion in the bottom of

the bottle. The agent testified further that Arnold stated that he

had spilled t he first liter. Regarding Arnold’s more recent

contention that he had used the first liter of benzyl chloride to

manufacture a controlled substance, the agent testified that a

yield of “much more than 500 grams” of benzyl cyanide would result;

that if Arnold had converted the first liter of benzyl chloride, a

yield of approximately one liter, or 1,100 grams, of benzyl cyanide

could be expected.

Observing that Arnold had pleaded guilty to a continuing

offense during which time he poss essed 2,200 grams of benzyl

chloride, the dis trict court overruled Arnold’s objection to the

PSR and concluded that 24 was the appropriate base offense level.

The court sentenced Arnold to 52 months of imprisonment, and Arnold

timely appealed.4 II

ANALYSIS

As his sole point of error on appeal, Arnold contends that the

district court erred in overruling hi s objection to the PSR. He

reasserts the sentencing methodology that he proposed at the

sentencing hearing, arguing that “[n]othing in U.S.S.G. § 2D1.11 or

in the case law suggests that [such is] incorrect.” He also urges

that the district court should have made a finding as to the amount

of benzyl cyanide he possessed at the time of his arrest, but that

even assuming that he possessed 1,110 grams of benzyl cyanide “(as

the DEA agent asserts),” the resulting base offense level would

have resulted in a sentencing range lower than the sentence imposed

by the court. He further argues that, were a question to arise

concerning the proper application of § 2D1.11, “the resulting

answer would enure to his benefit under the rule of lenity.”

The Government notes that Arnold pleaded guilty to a

continuing offense during which period he possessed 2,200 grams of

benzyl chloride. The Government thus argues that the trial court’s

factual finding that Arnold posse ssed such a quantity of the

List II chemical was not erroneous.

Arnold’s argument, however, is not based on the district

court’s factual determination that 2,200 grams of benzyl chloride

were involved in the offense. Rather, Arnold challenges the

district court’s application of the Guidelines in determining that

the issue of what became of the first liter of benzyl chloride was

immaterial for sentencing purposes.5 United States v. Fitzhugh , 984 F.2d 143, 146 (5th Cir.),

cert. denied

, 510 U.S. 895, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993).

6 See § 2D1.11 cmt. 6; § 2D.11(d) n. *C.

7 See United States v. Picquet

, 963 F.2d 5 4, 56 (5th Cir.),

cert. denied

, 506 U.S. 902, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992).

5 We review a district court’s application of the Guide lines

de novo

. 5 Arnold’s argument is based on the Guidelines’ provision

that if both List I and List II chemicals are involved, the

sentencing court should use the greater of the base offense level

for the List I chemicals or the List II chemicals. 6 He insists

that, despite his admitted possession of 2,200 grams of benzyl

chloride during the span covered by the indictment to which he

pleaded guilty, his sentence should be based only on the amount of

benzyl chloride, or its resultant product, on hand at the time of

his arrest.

Although there is no guideline authority or case law expressly

rejecting Arnold’s “logic,” common sense dictates that the ultimate

fate of the first liter of benzyl chloride is irrelevant for

sentencing purposes. The rule of lenity does not abrogate common

sense. 7

Arnold was not convicted of possessing both benzyl chloride

and benzyl cyanide. Rather, he admittedly possessed two liters of

benzyl chloride during the time bracketed by the indictment. Even

if no benzyl chloride had been di scovered at the time of his

arrest, the c ourt was well within the law when it sentenced him

based on the aggregate amount that he had possessed. Moreover, as

noted by the Government at the sentencing hearing, the Guidelines8 See

, e.g.

, § 2D1.11(c)(1)(providing that if offense involved

the manufacture of a controlled substance, the “manufacture”

guideline is applicable if it is greater than the “possession”

guideline).

9 910 F.2d 1321 (6th Cir. 1990), cert. denied

, 498 U.S. 1094,

111 S.Ct. 980, 112 L.Ed.2d 1065 (1991).

10 Id. at 1327.

1 1 Nos. 97-4387, 97-4386, 1998 WL 276299 (4th Cir. Apr. 6, 1998)

(per curiam).

6 do not contemplate rewarding a defendant for going one step further

in the manufacture of controlled substances. 8

III

CONCLUSION

Albeit a narrow one, the sentencing issue considered today is

res nova in this circuit. In holding that the trial court

correctly interpreted the applicable Guidelines provision when, in

calculating Arnold’s sentence, it used the quantity of the listed

chemical contained in the factual resumé produced at his sentencing

hearing following his plea of guilty to the charge for which he was

indicted, we join at least two other circuits that have approbated

such an approach. In U nited States v. Mill e r

, 9 the Sixth Circuit

noted that a sentencing court is permitted to consider the quantity

of drugs a defendant admits to buying or selling, notwithstanding

that he might have possessed a lesser quantity at the time of his

arrest. 10 Similarly, in U nited States v. Western

, 11 the Fourth

Circuit held that a defendant’s statement regarding the quantity of

drugs in which he trafficked may properly form a basis for an12 Id. at *5.

7

offense level calculation. 12 Here, Arnold pleaded guilty to

p ossessing 2200 grams of benzyl chloride. The district court

committed no error in using that quantity in its sentencing

calculus.

AFFIRMED.