NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0754n.06 No. 11-5576 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. J ASON CRABTREE, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TENNESSEE

BEF ORE: NORRI S, McKEAGUE , and KETH L EDGE, Circuit Judges.

PER C URI AM. J ason Crabtre e appe als the district court’ s sentence
. Crabtre e pleade d gu ilty to conspirac y to manufa cture methamphetamine, in violation of 21 U.S.C. §§ 841(a) (1) and 846. His role in the conspirac y was to procur e cer tain ingr edients

neces sary to make the methamphetamine, including pseudoephedr ine. At the s entenc ing hear ing,

a specia l a g ent from the Drug Enforc ement Administration testified that Crabtre e procur ed 149.76 g rams of pseudoephe drine in further ance of the conspirac y , that the actua l yiel d of the methamphetamine manufa ct u ri ng proce ss is approximately 70 perc ent, and that the resulting substance is approximately 80 perc ent pure methamphet a mi n e . T h e d is tric t c o u

r t found that Crabtre e

was re sponsible for 149.76 grams of pse udoephedr ine and, ba sed on the percenta g es di scussed by t h e specia l ag ent, that Crabtre e was responsible for approximately 105 g rams of a mix ture o r substan c e c o ntain in g me th a mp h e tamine and 84 g rams of actua l methamphetamine. Relying on those finding s, the district court conclude d that Crabtre e’s base offe nse level was 32, reg ardle ss of whetherNo. 11-5576 - 2 - it was ca lculated by

conver ting the pseudoephe drine to its marijuana equivalent or by considering the amount of actua l methamphetamine t h at would be produce d from the pseudoephe drine. The court subtracte d three levels from Crabtre e’s base offe nse level for acc eptanc e of responsibility

. Ba sed on the total offen s e l evel of 29 and a criminal history cate g ory of I V, the district court deter mined that Crabtre e’s guidelines rang e of imprisonment was 121 to 151 months. I t sentenc ed him to 121 mont hs in prison. On appea l, Crabtre e asser ts that the district court’s sentenc e was improper in two respe cts: (1) the court err ed by calc ulating his base offe nse level using the guideline fo r ac t ual methamphetamine instead of the guideline for a mix ture or substance containing methamphetamine; and (2) the sentenc e was proce durally unrea sonable beca use using the guid el ine for actua l methamphetamine to calc ul at e h i s base offe nse level resulted in a disparity betwee n Crabtre e’s sentenc e and the sentenc es of simil arly -situated defe ndants. “W e revie w the district court’s appli ca t i o n of the Sentencing Guidelines de novo and its finding s of fac t for clea r err or.” United States v. Bolton , 669 F.3d 780, 782 ( 6th Cir. 2012). The district court did not err in calc ulating Crabtre e’s base offe nse level and his resulting guidelines rang e. Initially , we note that the district court proper ly calc ulated Crabtre e’s base offe nse level by conver

ting the amount of pseudoephe drine attributable to him into its marijuana equivalent. See USSG § 2D1.1(c )(4) & comment. (n.10(A) , (E))

. Fur ther, to the extent that the district court d etermined Crabtre e’s base offe nse level using the guideline for actua l methamphetamine under § 2D1.1(c )(4) , rathe r than the guideline for a mix ture or substance containing met h am phetamine under § 2D1.1(c )(7) , it did so proper ly beca use use o f th e a c tua l methamphetamine guideline resulted in a hig her of

fense level. See USSG § 2D1.1(c ), Notes to DrugQuantity Table, N ote B . Be cause the district court proper ly calc ulated Crabtre e’s base offe nse level and his resulting guidelines rang e,No. 11-5576 - 3 - t h er e wa s no unwar

rante d disparity betwee n his sentenc e and the sentenc es of simil arly-situated defe ndants. Acc ording ly , we a ffirm the district c ourt’s sentenc e.