United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1734

___________

United States of America, *

 *

Appellee, *

 * Appeal from the United

States

v. *

District Court for the

 *

Western District of Arkansas

Charles Victor Cole, *

 * {TO BE PUBLISHED}

Appellant. *

___________

 Submitted: August 20, 1997

 Filed: September

22, 1997

___________

Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

___________

PER CURIAM.

In 1996, authorities seized an operational

methamphetamine laboratory--including glassware,

ephedrine, pseudoephedrine, and manufacturing

paraphernalia--from the residence of Charles Victor Cole;

they also seized some actual methamphetamine in liquid

and powder form. Cole later pleaded guilty to one count

of manufacturing methamphetamine, in violation of 21

U.S.C. § 841(a)(1), and the district court sentenced him

to 151 months imprisonment and 3 years supervised
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release. Cole appeals his sentence, arguing that the

district court erred in calculating the amount of

methamphetamine that could be produced from the seized

chemicals and glassware, because the court used a

“theoretical” ratio of 1 gram of ephedrine to .75 
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of a gram of methamphetamine rather than Cole&s lower

calculation, to which he testified at sentencing. Cole

also argues that the court erred in denying him an

acceptance-of-responsibility adjustment. We affirm the

denial of the acceptance-of-responsibility adjustment, as

it is undisputed that Cole repeatedly tested positive for

methamphetamine while he was released on bond following

his arrest for manufacturing methamphetamine. See U.S.

Sentencing Guidelines Manual § 3E1.1, comment. (n.3)

(1995); United States v. Campos, 87 F.3d 261, 264 (8th

Cir.), cert. denied, 117 S. Ct. 536 (1996) (standard of

review); United States v. Poplawski, 46 F.3d 42, 43 (8th

Cir.) (defendant&s related criminal conduct while free on

bond awaiting disposition of case may be considered in

determining acceptance of responsibility), cert. denied,

515 U.S. 1109 (1995). Nevertheless, we vacate Cole&s

sentence and remand for further application of the

Sentencing Guidelines as to drug quantity.

At sentencing, Cole testified that, although he had

been cooking methamphetamine for 4 to 5 years, he had

never yielded .75 of a gram from 1 gram of ephedrine, and

that he usually yielded .25 of a gram. The chemist who

analyzed Cole&s laboratory testified that the .75 figure

was an average based upon yields seen in the field; a

certified lab investigator testified that he believed the

.75 figure was appropriate in this case based on Cole&s

experience as a cook, the seized evidence, and

information others had given regarding the quantity of

methamphetamine Cole was dealing. In denying Cole&s

objection to the drug quantity recommended in the

presentence report, the court determined the testimony of

the lab investigator and the chemist established that a
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“mean” yield was .75, and found irrelevant Cole&s

assertion that he never reached the .75 average,

concluding the pertinent question was “what could be done

at a laboratory, not what he, in fact, did.”

Because the amount of methamphetamine seized in this

case did not reflect the scale of Cole&s offense, the

district court was required to approximate the quantity

of the controlled substance, considering the size and

capability of Cole&s laboratory. See U.S. Sentencing

Guidelines Manual § 2D1.1, comment. (n.12) (1995).

Although the 
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district court could have found Cole&s testimony on

methamphetamine yield not credible, the court did not

make such a finding. Rather, the district court found

Cole&s testimony irrelevant, erroneously turning the

inquiry into what an average cook was capable of

yielding, not what Cole could have produced based on the

seized chemicals. In doing so, the district court

committed error, and we therefore remand this matter so

that the court may apply the correct legal standard in

evaluating Cole&s testimony and determining drug quantity.

BEAM, Circuit Judge, concurring in part and dissenting in

part.

I concur in the court&s opinion as to the acceptanceof-responsibility issue, but I dissent from the court&s

conclusion that the district court committed legal error

by stating Cole&s testimony was irrelevant. I believe

that the district court&s statement, taken in the context

of the court&s discourse at sentencing, simply evinced its

belief that the government witnesses& testimony as to what

Cole could produce was more credible than Cole&s testimony

on that point. In my view, the court then relied on the

credited testimony in approximating drug quantity, as

directed by the applicable commentary. See U.S.

Sentencing Guidelines Manual § 2D1.1, comment. (n.12)

(1995); see United States v. Adipietro, 983 F.2d 1468,

1472 (8th Cir. 1993) (determinations concerning witness

credibility are virtually unreviewable on appeal). 

A true copy.

Attest:
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 CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.