* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

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

### MAY 24 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN RICHARD HOUSEL, SR., Defendant-Appellant. No. 00-3252 (D.C. No. 99-CR-40063-DES)

(D. Kan.)

ORDER AND JUDGMENT *

Before EBEL , KELLY and LUCERO , Circuit Judges.
John Richard Housel pleaded guilty to distributing and attempting to distribute a total of about one and a half pounds o f marijuana. (Doc. 44 (plea agreement); Doc. 1 (indictment).) On appeal, House l asserts that the Presentence Investigation Report (PSR) incorrectly calculated that he was responsible for the equivalent of more than 10,431 kilograms of marijuana. Housel’s counsel below- 2 -

initially filed several objections to the PSR but w ithdrew them at sentencing, asserting that they would not affect Housel’s sente nce. (Doc. 61 (sentencing transcript), at 2-3.) The district court adopted t he PSR’s findings and application of the guidelines, and sentenced Housel to ten year s’ imprisonment. (PSR ¶ 84; Doc. 56 (judgment), at 2,7.) Because he did not raise his argument below, Housel has waived review of all but plain error. United States v. Dwyer , 245 F.3d 1168, 1170 (10th Cir. 2001). To reverse, we must find (1) error that is (2) plai n, (3) affects the defendant’s substantial rights, and (4) “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Johnson v. Un ited States , 520 U.S. 461, 467 (1997) (alteration omitted). Factual disputes not raised below do not amount to plain error. United States v. Svacina , 137 F.3d 1179, 1187 (10th Cir. 1998). We therefore accept the factual findings of the PSR an d review only whether the PSR’s application of the guidelines to these facts was plain error. The PSR determined that Housel’s related conduct in cluded attempting to manufacture methamphetamine. (PSR ¶¶ 21-22, 106.) An informant had reported that Housel was setting up a methamphetamine lab an d needed to locate red phosphorus, iodine crystals, and ephedrine tablets. (PSR ¶ 6.) Housel told an undercover officer that he had the needed cookware and was merely waiting for the precursor chemicals. (PSR ¶ 8.) After some ne gotiations, Housel purchased1 Housel does not appear to challenge this calculatio n.

2 Even when the underlying offense is possession of alisted chemical, the Sentencing Guidelines state that § 2D1.1 should be applied if the defendant’s actions constitute an attempt to manufacture a cont rolled substance and if that section results in a higher offense level. § 2D1.1 1(c) & Application Note 2. - 3 - phosphorus, iodine, and pseudoephedrine from the of ficer. (PSR ¶¶ 8, 12, 14.) Laboratory analysis indicated that from the quantity of phosphorus, Housel could have produced 1043 grams of methamphetamine. 1 (PSR ¶ 14.) Using the table in § 2D1.1 of the Sentencing Guidelines, the PSR conve rted the methamphetamine to 10,430 kilograms of marijuana and added it to the 1 .13 kilograms of marijuana the transactions underlying the charged offenses. (PSR ¶ 23.) Housel argues that this related conduct should have been treated as possession of a listed chemical, for which sentence s are ordinarily calculated under § 2D1.11. Pseudoephedrine and iodine are both listed chemicals. See 21 U.S.C. § 802(34), (35). The PSR, however, treated Housel’s conduct as amounting to an attempt to manufacture methamphetam ine, a controlled substance, and the sentence for this offense is gov erned by § 2D1.1. 2 We decline to disturb the PSR’s factual determination or to ho ld that application of § 2D1.1 was plain error in this case. The cases that Housel relies on most heavily are re adily distinguishable because they did not involve attempts to manufactur e methamphetamine. In United States v. Hoster , 988 F.2d 1374, 1382 (5th Cir. 1993), the court fo und that- 4 -

it was plain error to aggregate the quantities of acontrolled substance (amphetamine) and a listed chemical (phenylacetic a cid) by treating phenylacetic acid as equivalent to phenylacetone, which is liste d in the conversion tables under § 2D1.1. The court noted that “there is nothing in the Guidelines by which one could infer a relationship between phenylacetic aci d and phenylacetone.” Id. at 1382 n.21. Similarly, in United States v. Wagner , 994 F.2d 1467, 1472 (10th Cir. 1993), we found that it was plain error to convert P 2 P – a controlled substance that is a precursor chemical to methamphetamine – i nto methamphetamine and then convert that into marijuana to aggregate quant ities under § 2D1.1. We held instead that the P 2 P should have been converted directly to marijuana in accordance with the Guidelines’ table. Id. In this case, however, Housel’s offense was attempting to manufacture methamphetami ne, so the quantity of methamphetamine that he was capable of making was r elevant. See United States v. Griggs , 71 F.3d 276, 280 (8th Cir. 1995). Housel’s brief seems to suggest that his counsel be low erred in failing to preserve proper objections to the PSR. (Opening Br . at 5.) He has not directly raised a claim of ineffective assistance of counsel , and we rarely consider the issue on direct appeal. See United States v. Galloway , 56 F.3d 1239, 1240-41 (10th Cir. 1995) (en banc). If Housel wishes to pu rsue this argument, he must do so in a collateral proceeding under 28 U.S.C. § 225 5.- 5 -

We AFFIRM Housel’s sentence.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge