* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The 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. 

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

### AUG 1 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. GLEN E. BRUMMETT,

Defendant-Appellant. No. 99-6279 (D.C. No. 98-CR-185-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Defendant Glen E. Brummett pleaded guilty to posses sion of pseudoephedrine with intent to manufacture methamph etamine. On appeal, he1 The court also considered a small amount of marijuana seized from

Brummett, but the quantity of marijuana does not af fect the sentence. -2- challenges only the sentence imposed by the distric t court, contending that the court should not have based his sentence on the amo unt of “actual” methamphetamine he could have produced. We have ju risdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm. Charges against Brummett resulted from an investigation into an alleged conspiracy to manufacture and distribute drugs with in the Federal Correctional Institution at El Reno, Oklahoma. The investigatio n targeted Brummett, a counselor employed at the facility, and Roy Wells, an inmate, and led to a seven-count indictment against Brummett and Wells. Brummett pleaded guilty to count five, possession of a List I controlled subst ance (pseudoephedrine) with intent to manufacture methamphetamine and aiding an d abetting, in violation of 21 U.S.C. § 841(d)(1) and 18 U.S.C. § 2. The distr ict court determined that based on the amount of pseudoephedrine Brummett possessedand the manufacturing method he used, he could have produced 100.25 grams of methamphetamine (actual), resulting in a base offense level of thirty-two. 1 The court granted him a two-level reduction pursuant to USSG §§ 2D1.1(b)(6) and 5C1.2 for the exception to the mandatory minimum sentence. With the result ing offense level of thirty, together with Brummett’s criminal history category of I, the applicable sentencing2 Wells also pleaded guilty to one count of the indic tment, possession of

pseudoephedrine with intent to manufacture methamph etamine, in violation of 21 U.S.C. § 841(d)(1), and was sentenced, inter ali a, to the statutory maximum of twenty years’ imprisonment. In a separate order an d judgment, we have affirmed Wells’ sentence. See United States v. Wells , No. 99-6315 (10th Cir. August ___, 2000). -3- range was 97 to 121 months, and the court sentencedBrummett, inter alia, to 97 months’ imprisonment. 2 On appeal, Brummett challenges on two grounds the d istrict court’s determination of the purity of methamphetamine on w hich the court based its sentence. First, he contends that the government b reached the plea agreement by arguing for a sentence based on “actual” or “pure” methamphetamine rather than on a mixture containing methamphetamine. Second, h e contends that the district court erred in finding that the methamphetamine he could have produced would have been actual methamphetamine rather than a mixt ure. “We review the district court’s legal interpretation and application of the sentencing guidelines de novo and review the court’s factual findings for clear e rror, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Henry , 164 F.3d 1304, 1310 (10th Cir.), cert. denied , 527 U.S. 1029 (1999). The court’s determination of the drug quantity for which a defe ndant is responsible is a factual matter we review for clear error. See United States v. Wacker , 72 F.3d 1453, 1477 (10th Cir. 1995).3 The 1998 version of the United States Sentencing Gu idelines applies to this

case. -4- The sentencing guidelines 3 provide two ways of calculating the base offense level for methamphetamine convictions: one based on the quantity of a mixture containing methamphetamine, and the other b ased on the amount of pure or actual methamphetamine contained in the mixture. See USSG § 2D1.1(c) n.(B); United States v. Gigley , 213 F.3d 509, 518 (10th Cir. 2000). For comparable quantities, pure methamphetamine generat es a higher offense level than a mixture containing methamphetamine. Here, t he district court’s determination that Brummett could produce 100.25 gr ams of pure methamphetamine resulted in a base offense level of thirty-two, while Brummett contends that had the court used the appropriate mi xture quantity of 277 grams, the offense level would have been twenty-eight. Th e sentencing guidelines direct the district court to use either the offense level determined based on the entire weight of the mixture or that based on the weight o f the actual methamphetamine contained in the mixture, whichever is greater. See USSG § 2D1.1(c) n.(B); Gigley , 213 F.3d at 519. Brummett’s plea agreement contained two stipulation s he contends are relevant to his argument on appeal:

(5) All parties believe, based on the available fac ts, that defendant Glen E. Brummett’s methamphetamine manufacturing-5-

process had a 60 percent reduction rate in converti ng pseudoephedrine to methamphetamine; (6) All parties believe, based on the available fac ts (including an [Oklahoma State Bureau of Investigation] chemist ’s report), that defendant Glen E. Brummett possessed 514.3 grams of pseudoephedrine for the purpose of manufacturing methamphetamine . . . . Appellant’s Suppl. App. at 8. Brummett contends that the government breached the plea agreement because it stipulated in the agreement to the amount of methamphetamine he could produce, but then argued that he should be sentenced based on actual methamphetamine . He acknowledges that he failed to raise this iss ue in the district court and thus requests that we review it for plain error. See Appellant’s Reply Br. at 2. However, as this citation indicate s, he failed to raise this issue until his reply brief, and we do not consider, even under a plain error standard, issues raised for the first time in a reply. See United States v. Murray , 82 F.3d 361, 363 n.3 (10th Cir. 1996); United States v. Hardwell , 80 F.3d 1471, 1495 (10th Cir. 1996). Brummett also contends that the district court erre d in finding that he was capable of producing 100.25 grams of pure methamphe tamine. Because no methamphetamine was seized, the district court base d its determination of the amount and type of drug for which Brummett was to b e held responsible on the parties’ stipulations as to the amount of pseudoeph edrine seized, the reduction4 The chemist testified that the sixty percent reduct ion rate, which he

described as conservative, accounted for the fact t hat “40 percent of this is lost throughout this process from grinding up [pseudoeph edrine] tablets in a blender and pouring them into another container, what is le ft behind; from the reaction itself. This 40 percent is to account for that and to account for any errors which may occur . . . [and which may include] inefficienc ies in the actual lab.” Appellant’s App. at 42-43.

5 The molar ratio represents weight lost due to the l oss of an oxygen molecule during the chemical reaction. See Appellant’s App. at 41-42. -6- rate of Brummett’s manufacturing method (referred t o as the “Nazi method”) and the testimony of a chemist employed by the OklahomaState Bureau of Investigation. See USSG § 2D1.1, comment. (n.12) (“Where there is no drug seizure . . . , the court shall approximate the qua ntity of the controlled substance . . . [considering, inter alia,] the size or capabi lity of any laboratory involved.”); United States v. Short , 947 F.2d 1445, 1456-57 (10th Cir. 1991) (estimati ng drug quantity based on characteristics of drug laboratory). The chemist testified that given the amount of pseudoephedrine seized, the sixty percent reduction rate, 4 and a ten percent loss due to the molar ratio, 5 Brummett could have produced 105.53 grams of what he described as “pure” methamphetamin e. Because the chemist also testified that the Nazi method was 95 to 99 pe rcent efficient, the district court reduced the 105.53 grams by five percent to 1 00.25 grams. Although the chemist testified he thought that the reduction rat e already took into account this 95 percent efficiency rate, he testified that the 1 00.25 grams would not have any-7-

impurities in it. Based on this evidence, the court determined that Brummett was accountable for 100.25 grams of actual methamphetam ine. Brummett contends essentially that the chemist was incorrect, that his process could not have produced pure methamphetamin e, and that “[i]t is impossible for the government to prove, or the court to accept, a purity level of methamphetamine that was never produced.” Appellant’s Br. at 17. He cites no evidence contradicting the chemist’s testimony, how ever, and the chemist’s calculations, as adjusted by the court for the 95 p ercent efficiency of the Nazi method, were designed to determine the amount of pu re methamphetamine Brummett could produce. Moreover, we see no reasonwhy the court cannot rely on expert testimony regarding this issue. See United States v. Hunt , 171 F.3d 1192, 1196 (8th Cir. 1999) (upholding sentence base d on expert’s testimony of amount of actual methamphetamine defendant’s laboratory could have produced). In short, the court’s finding that Brummett was acc ountable for 100.25 grams of actual methamphetamine for sentencing purposes was not clearly erroneous.
AFFIRMED. Entered for the Court
Stephen H. Anderson Circuit Judge