UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5466

EMZY MONROE WALLS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Abingdon.

Samuel G. Wilson, District Judge.

(CR-91-40)

Submitted: February 29, 1996

Decided: April 5, 1996

Before MURNAGHAN, WILLIAMS, and MICHAEL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Daniel K. Read, Jr., JESSEE & READ, P.C., Abingdon, Virginia, for

Appellant. Robert P. Crouch, Jr., United States Attorney, Karen B.

Peters, Assistant United States Attorney, Thomas E. Booth, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Emzy Monroe Walls pled guilty in November 1991 to conspiracy

to possess methamphetamine and marijuana with intent to distribute.

21 U.S.C.A. § 841 (West 1981 & Supp. 1995). His offense involved

880 grams of methamphetamine. Walls was sentenced in February

1992 to 188 months imprisonment and his sentence was reduced to

120 months in July 1992 on the government's motion for a departure

for substantial assistance. He did not appeal his sentence.

In April 1994, Walls filed a 28 U.S.C.A. § 2255 (1988) motion

alleging error in that he had been sentenced on the assumption that

the methamphetamine involved in his offense was D-methamphetamine rather than L-methamphetamine. At the time, the applicable

guideline provided a lower sentence for an offense involving L-methamphetamine; one gram of methamphetamine was the equivalent of

1 kilogram of marijuana, while 1 gram of L-methamphetamine was

the equivalent of 40 grams of marijuana. United States Sentencing

Commission, Guidelines Manual, § 2D1.1, comment. (n.10) (Nov.

1991).* The government agreed to have Walls resentenced under the

guideline range for an L-methamphetamine offense. Walls was resentenced to a term of 100 months. It is this sentence he appeals.

Before the resentencing, Walls filed objections to the original presentence report. In addition to a recalculation of his base offense

level, he requested a 3-level adjustment for acceptance of responsibility, USSG § 3E1.1, and argued that the special skill adjustment previously awarded for his ability to manufacture methamphetamine did

not apply. USSG § 3B1.3.

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*A 1995 amendment to USSG § 2D1.1 eliminated the distinction.

USSG App. C, amendment 518.

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At sentencing, the district court found that the mandatory minimum

sentence set out in § 841(b)(1)(A)(viii) applied to all forms of methamphetamine. Therefore, although Walls's base offense level of 26

and criminal history category III yielded a guideline range of 78-97

months, his guideline range was 120 months. USSG§ 5G1.1(b).

Walls principally contests this ruling. We find no error.

Unlike the pre-1995 version of USSG § 2D1.1,§ 841 makes no

distinction between types of methamphetamine. The mandatory minimum sentence thus applies whether D-methamphetamine or L-methamphetamine is involved. See United States v. Massey, 57 F.3d 637,

638 (8th Cir. 1995). The district court was thus correct in finding that

Walls's guideline range was 120 months.

Because the guideline range could not have been less than 120

months, the adjustments for special skill and acceptance of responsibility had no effect on the sentence. Therefore, we find that Walls's

challenges to these adjustments do not merit discussion or relief.

Accordingly, we affirm the sentence. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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