*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20358

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICKY WAYNE GORDON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

 Southern District of Texas 

(CR-H-88-360)

_________________________________________________________________

 

November 22, 1995

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Gordon filed a motion to modify his prison term under 18

U.S.C. § 3582(c)(2). The district court entered a one-sentence

order denying the motion to modify on April 20, 1995.

Gordon's motion to modify his sentence was based on the 1993

amendment to U.S.S.G. § 2D1.1. Gordon argued that the amendment

provided that certain materials produced in the manufacturing
-2-

process could not be considered in determining the amount of

controlled substances involved in the offense. Gordon asserted

that removing these materials would have resulted in an amount of

methamphetamine that was less than two pounds.

Gordon's calculations are based on a fundamental

misunderstanding of the DEA report. The report gives the strength

of three samples of the oil in terms of milligrams of HCL salt

(usable methamphetamine) per milliliter of oil. For example,

exhibit 2 had 103 mg of HCL salt per ml of oil. Gordon misread

this to mean that exhibit 2 contained only 10.3 percent HCL salt by

weight. Additionally, the HCL salts weight given in the report

(69.7 grams) does not represent the entire 50 liters of

methamphetamine oil seized, but only represents the HCL salts

present in the tested samples. Only 44.8 milliliters were tested,

less than 1/1000th of the seized quantity of oil. The DEA reported

that their chemist concluded that the oil would yield between 25

and 30 pounds of usable methamphetamine. The PSR calculated the

base offense level as 36 based on the weight of 50 liters of the

oil. The PSR also calculated an alternate base offense level of 34

based on the weight of the usable methamphetamine derived from the

oil (30 pounds).

In any event, the district court sentenced Gordon using the

base offense level of 34 based on the usable product alone. The

district court imposed a sentence of 121 months, which is the

bottom of the range for offense level 32 and criminal history
-3-

category I. Therefore, Gordon was originally sentenced based on

only the usable amount of methamphetamine (as in the amended

guidelines), not on the total weight of the oil. The district

court did not abuse its discretion in denying the motion to reduce

Gordon's sentence pursuant to 18 U.S.C. § 3582(c)(2) because no

additional reduction was warranted under the amended guidelines. 

A F F I R M E D.