United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1734

___________ United States of America, * * Appellee, * * Appeal from the Unite d States v. * District Court for the * Western District of Arkansas Charles Victor Cole, * * {TO BE PUBLISHED} Appellant. *

___________ Submitted: August 20, 1997

Filed: Septembe r 22, 1997

___________ Bef ore McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

___________ PER CURIAM.

In 1996, authorities seized an operationa l methamphetamine laboratory--including glassware , ephedrine, pseudoephedrine, and manufacturin g paraphernalia--from the residence of Charles Victor Cole; theyalso seized some actual methamphetamine in liqui d and powder form. Cole later pleaded guilty to one count of m anufacturing methamphetamine, in violation of 2 1 U.S.C. § 8 41(a)(1), and the district court sentenced him to 1 51 months imprisonment and 3 years supervise d-2-

release

. Cole appeals his sentence, arguing that th e dist rict court erred in calculating the amount o f meth amphetamine that could be produced from the seize d chem icals and glassware, because the court used a “theoretical” ratio of 1 gram of ephedrine to .75-3-

of a gram of methamphetamine rather than Cole & s lowe r calculation, to which he testified at sentencing. Col e al so argues that the court erred in denying him a n acceptance-of-responsibilityadjustment. We affirm th e denial of the acceptance-of-responsibility ad justment, as it is undisputed that Cole repeatedly tested positive for meth amphetamine while he was released on bond followin g his arrest for manufacturing methamphetamine. See U.S

. Sent encing Guidelines Manual § 3E1.1, comment. (n.3 ) (1995) ; United States v. Campos , 87 F.3d 261, 264 (8t h Cir.), cert. denied , 117 S. Ct. 536 (1996) (standard o f review); United States v. Poplawski , 46 F.3d 42, 43 (8th Cir.) (defendant & s relatedcriminal conduct while free on bond awaiting disposition of case may be considered i n determinin g acceptance of responsibility), cert. denied , 51 5 U.S. 1109 (1995). Nevertheless, we vacate Cole & s sent ence and remand for further application of th e Sentencing Guidelines as to drug quantity.

At sentencing, Cole testified that, although he ha d been cooking methamphetamine for 4 to 5 years, he ha d never yielded .75 of a gram from 1 gram of ep hedrine, and tha t he usually yielded .25 of a gram. The chemist wh o
an alyzed Cole & s laboratory testified that the .75 figur e
was a n average based upon yields seen in the field; a certified lab investigator testified that he believed the .75 figu re was appropriate in this case based on Cole & s expe rience as a cook, the seized evidence, an d info rmation others had given regarding the quantity o f
me thamphetamine Cole was dealing. In denying Cole & s obje ction to the drug quantity recommended in th e presentence report, the court determined the testimony of the lab investigator and the chemist established that a-4-

“m ean” yield was .75, and found irrelevant Cole & s
asse rtion that he never reached the .75 average , concluding the pertinent question was “what c ould be done at a laboratory, not what he, in fact, did.” Because the amount o f methamphetamine seized in this
case d id not reflect the scale of Cole & s offense, th e dist rict court was required to approximate the quantit y of t he controlled substance, considering the size an d
ca pabilityof Cole & s laboratory. See U.S. Sentencin g Gu idelines Manual § 2D1.1, comment. (n.12) (1995)

. Although the-5-

di strict court could have found Cole & s testimony o n meth amphetamine yield not credible, the court did no t make s uch a finding. Rather, the district court foun d Cole & s testimony irrelevant , erroneously turning th e inquir yinto what an average cook was capable o f yielding, not what Cole could have produced based on the seized chemicals. In doing so, the district cour t committed error, and we therefore remand this matter s o that t he court may apply the correct legal standard i n evaluatingCole & s testimony and determining drug quantity

. BEAM, Circuit Judge, concurring in part and d issenting in part.

I concur in the court & s opinion as t o the acceptanceof -responsibilityissue, but I dissent from the court & s conclusionthat the district court committed legal error by stat ing Cole & s testimony was irrelevant. I believ e that the district court & s statement, taken in the context of the court & s discourse at sentencing, simply evinced it s belief that the government witnesses & testimony as to wha t Cole could produce was more credible than Cole & s testimony on that po int. In my view, the court then relied on the credi ted testimony in approximating drug quantity, a s dire cted by the applicable commentary. See U.S

. Sente ncing Guidelines Manual § 2D1.1, comment. (n.12 ) (199 5); see United States v. Adipietro , 983 F.2d 1468 , 1472 (8th Cir. 1993) (determinations concerning witnes s credibility are virtually unreviewable on appeal).
A true copy.

Attest:-6- CLERK, U.S. COURT OF APPEALS, EIGHT H CIRCUIT.