1

We have detailed the factual background of this case in

United States v. Newsome, 998 F.2d 1571, 1574 (11th Cir.1993),

cert. denied, --- U.S. ----, ----, 114 S.Ct. 734, 737, 126

L.Ed.2d 698, 700 (1994). 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8404.

UNITED STATES of America, Plaintiff-Appellee,

v.

Edwin Eugene TROUT, Defendant-Appellant.

Nov. 9, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 2:90-00021-CR-5-WCO), William C.

O'Kelley, Judge.

Before EDMONDSON, COX and BIRCH, Circuit Judges.

PER CURIAM:

This appeal presents a first-impression issue for our circuit

concerning whether 21 U.S.C. § 841(b)(1) was unconstitutionally

vague prior to its amendment in 1990. The district court concluded

that it was not and, following the rule of lenity, resentenced the

defendant-appellant under section 841(b)(1)(B)(viii). We AFFIRM.

I. BACKGROUND

Defendant-appellant Edwin Eugene Trout was convicted of

conspiring to manufacture and to possess methamphetamine in

violation of 21 U.S.C. § 846, manufacturing methamphetamine in

violation of 21 U.S.C. § 841, and possessing methamphetamine with

intent to distribute in violation of 21 U.S.C. § 841.1 In Trout's

first appeal, we remanded for resentencing because the district

court improperly had treated as methamphetamine the gross weight of
 2

After reviewing the record, we conclude that Trout's five

remaining issues on appeal lack merit and do not warrant

extensive discussion. The district court properly enhanced

Trout's sentence under U.S.S.G. § 3B1.1(b) for his role as a

manager or supervisor; as the chemist in charge of a

methamphetamine laboratory, Trout "exercised management

responsibility over the property, assets, or activities of a

criminal organization," id., comment. (n. 2). Additionally, the

district court correctly applied U.S.S.G. § 4A1.2(e) because

Trout had been incarcerated for a prior conviction within fifteen

years of committing the present offenses; U.S.S.G. § 4A1.1(d)

because Trout had been serving summary probation at the time of

these crimes; and U.S.S.G. § 4B1.1 because Trout's two prior

felony convictions for crimes of violence have no time

limitations for purposes of categorizing Trout as a career

offender. Trout's argument that his conviction for conspiracy

should not count as a drug conviction for purposes of career

offender guidelines was conceded by the government and accepted

by the district court at resentencing; thus, that issue is moot. 

chemical mixtures that contained only trace amounts of

methamphetamines. United States v. Newsome, 998 F.2d 1571, 1579

(11th Cir.1993), cert. denied, --- U.S. ----, ----, 114 S.Ct. 734,

737, 126 L.Ed.2d 698, 700 (1994). On remand, the district court

sentenced Trout to concurrent forty-year prison terms on the

conspiracy and manufacture charges and to a consecutive five-year

prison term for possession; the court also sentenced Trout to ten

years of supervised release.

 Trout appeals from his resentencing. His main contention is

that section 841(b)(1) is unconstitutionally vague or,

alternatively, that the district court failed to follow the rule of

lenity when applying this ambiguous sentencing provision to his

case. Additionally, Trout argues that the district court erred by

sentencing him under the harsher Guidelines applicable to

D-methamphetamine, rather than those applicable to

L-methamphetamine.2
II. DISCUSSION

 The constitutionality of section 841(b) is a question of law

subject to de novo review. United States v. Osburn, 955 F.2d 1500,

1503 (11th Cir.), cert. denied --- U.S. ----, ----, 113 S.Ct. 223,

290, 121 L.Ed.2d 160, 215 (1992). Concerning Sentencing Guidelines

issues, we review the district court's findings of fact for clear

error and its application of law to those facts de novo. United

States v. Rojas, 47 F.3d 1078, 1080 (11th Cir.1995).

A. Vagueness

Trout first argues that the sentencing provision of section

841 is unconstitutionally vague. Because of a technical error in

the 1988 Anti-Drug Abuse Amendments Act, sections

841(b)(1)(A)(viii) and 841(b)(1)(B)(vii) once prescribed two

different punishments for the same offense. Under section

841(b)(1)(A)(viii), a first-time offender could receive "not ...

less than 10 years or more than life" imprisonment for violations

of section 841(a) involving 100 grams or more of a mixture or

substance containing methamphetamine; under section

841(b)(1)(B)(viii), a first-time offender could receive "not ...

less than 5 years and not more than 40 years" imprisonment for the

identical crime. Although a 1990 amendment to section

841(b)(1)(A)(viii) substituted the words "1 kilogram or more" for

"100 grams or more," the ambiguity was unresolved at the time of

Trout's crimes at issue in this case.

 "So long as overlapping criminal provisions clearly define

the conduct prohibited and the punishment authorized, the notice

requirements of the Due Process Clause are satisfied." United
States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2204, 60

L.Ed.2d 755 (1979). Whether section 841(b)(1), prior to its 1990

amendment, was unconstitutionally vague is an issue of first

impression in this circuit. However, the Fifth Circuit has

addressed this precise question on a number of occasions. See

United States v. Kinder, 946 F.2d 362, 367-68 (5th Cir.1991), cert.

denied, 503 U.S. 987, 112 S.Ct. 1677, 118 L.Ed.2d 394, and cert.

denied, 504 U.S. 946, 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992);

United States v. Harris, 932 F.2d 1529, 1535-36 (5th Cir.1991),

cert. denied, 502 U.S. 897, 917, 112 S.Ct. 270, 324, 116 L.Ed.2d

223, 265 (1991), and cert. denied, 502 U.S. 1049, 112 S.Ct. 914,

116 L.Ed.2d 814 (1992); United States v. Shaw, 920 F.2d 1225,

1227-28 (5th Cir.), cert. denied, 500 U.S. 926, 111 S.Ct. 2038, 114

L.Ed.2d 122 (1991). Despite the ambiguity, the Fifth Circuit

concluded that section 841(b)(1) was not unconstitutionally vague

"because Congress defined clearly the conduct prohibited

(possession of 100 grams of a substance containing

methamphetamine), and defendants knew they faced imprisonment of at

least five years." Kinder, 946 F.2d at 367-68. We accept this

reasoning and conclude that section 841(b)(1) provided Trout with

sufficient notice to satisfy due process. Although Trout may not

have known under which provision he would be sentenced if convicted

for the manufacture or possession of more than 100 grams of

methamphetamine, he clearly knew that such conduct was illegal and

punishable by at least five years imprisonment.

B. Rule of Lenity

 Trout next contends that the district court failed to follow
 3

Contrary to the Trout's suggestion, the Fifth Circuit in

United States v. Allison, 953 F.2d 870, 872-73 (5th Cir.1992),

did not require courts to apply section 841(b)(1)(C) when

confronted with an ambiguous choice between sections

841(b)(1)(A)(viii) and 841(b)(1)(B)(viii). Instead, the district

the rule of lenity because the court did not sentence him under

section 841(b)(1)(C), a less severe catchall provision with a

maximum penalty of twenty years imprisonment. "When a criminal

statute is ambiguous in its application to certain conduct, the

rule of lenity requires it to be construed narrowly. "[W]here

there is ambiguity in a criminal statute, doubts are resolved in

favor of the defendant.' " United States v. McLemore, 28 F.3d

1160, 1165 (11th Cir.1994) (citation omitted) (alteration in

original) (quoting United States v. Bass, 404 U.S. 336, 348, 92

S.Ct. 515, 523, 30 L.Ed.2d 488 (1971)). While we have not

confronted this issue in the context of section 841(b)(1), the

Fifth Circuit has held that the rule of lenity applies to

sentencing under section 841(b)(1) prior to its 1990 amendment.

See United States v. Sherrod, 964 F.2d 1501, 1505 (5th Cir.1992)

(upholding a sentence imposed under section 841(b)(1)(B)(viii) for

a defendant convicted of manufacturing 17.5 kilograms of a mixture

containing methamphetamine, where offense occurred prior to 1990

amendment to section 841(b)(1)), cert. denied, --- U.S. ----, 113

S.Ct. 832, 121 L.Ed.2d 701, and cert. dismissed, --- U.S. ----, 113

S.Ct. 834, 122 L.Ed.2d 111 (1992), and cert. denied, --- U.S. ----,

113 S.Ct. 1367, 122 L.Ed.2d 745 (1993); Kinder, 946 F.2d at 368

(remanding case for resentencing where district court, prior to the

1990 amendment, sentenced a defendant under the harsher section

841(b)(1)(A)(viii) rather than section 841(b)(1)(B)(viii)).3
court in Allison chose to sentence the defendants under section

841(b)(1)(C). Consequently, the Fifth Circuit concluded that the

defendant had suffered no injury in fact under the ambiguous

statutes and, therefore, lacked standing to raise the issue on

appeal. 

 We conclude that the rule of lenity does not require a

sentencing court to apply section 841(b)(1)(C) when it is unclear

whether a defendant's sentence is governed by section

841(b)(1)(A)(viii) or section 841(b)(1)(B)(viii). While the rule

of lenity directs us to apply the lesser penalty when a statute

presents an ambiguous choice between two punishments, the rule does

not require us to forsake both possibilities and to search for an

even more lenient alternative. "The rule of lenity only serves as

an aid for resolving an ambiguity, it is not an inexorable command

to override common sense and evident statutory purpose." United

States v. Brame, 997 F.2d 1426, 1428 (11th Cir.1993). It is clear

that Congress intended for either section 841(b)(1)(A)(viii) or

section 841(b)(1)(B)(viii) to apply in situations involving more

than 100 grams of mixtures containing methamphetamines; the

statute is not so ambiguous that the district court should have

resorted to sentencing under section 841(b)(1)(C).

 In this case, the government conceded at resentencing that

section 841(b)(1) was ambiguous and agreed that the district court

should sentence Trout under section 841(b)(1)(B)(viii), which

provided a lesser punishment than section 841(b)(1)(A)(viii). The

district court accepted this recommendation and sentenced Trout

under section 841(b)(1)(B)(viii). Because the district court

sentenced Trout under less severe section 841(b)(1)(B)(viii), the

rule of lenity was applied. See Kinder, 946 F.2d at 368 (remanding
 4

In Patrick, we stated: "Although the [controlled

substance] was tested to determine that it contained

methamphetamine, proof of which type of the drug was involved

would have been impossible without the administration of the more

sophisticated "plane polarized light' test, or the "optically

active column' test. No such testing was performed." Patrick,

983 F.2d at 208 (emphasis added). 

for resentencing under section 841(b)(1)(B)(viii) to implement the

rule of lenity). Trout's alternative argument concerning

application of the rule of lenity is meritless.

C. D-methamphetamine versus L-methamphetamine

 Trout also argues that the government failed to establish

that materials seized from one of Trout's coconspirators contained

D-methamphetamine rather than L-methamphetamine, a less potent

isomer of the same drug. D-methamphetamine carries a heavier

penalty under the Sentencing Guidelines than does an equivalent

amount of L-methamphetamine. See U.S.S.G. § 2D1.1; United States

v. Patrick, 983 F.2d 206, 208 (11th Cir.1993). In Patrick, we held

that the government must prove by a preponderance of the evidence

that controlled substances contain D-methamphetamine rather than

L-methamphetamine. Id. Trout would have us read Patrick as

imposing an even stricter burden on the government by requiring the

performance of one of two specific, laboratory procedures to

distinguish between D-methamphetamine and L-methamphetamine.4

We decline to interpret Patrick to establish this sort of

static, scientific orthodoxy. Our decision there depended less on

the particular tests employed by government experts than it did on

the testimony offered by those same experts. In Patrick, the

government's expert witnesses referred to the seized materials as

"methamphetamine," but they did not offer any testimony to
establish whether they intended D-methamphetamine or

L-methamphetamine. See id. at 209. We concluded that the

government failed to satisfy its burden to prove which isomer was

present in the illegal sample. Id. at 209, 211.

 In contrast, the government did provide such direct evidence

in this case; on numerous occasions, government witnesses

specifically identified the seized materials as containing

D-methamphetamine and described the tests used to analyze these

materials, see, e.g., R19-177. At trial, Trout offered no evidence

to suggest that the seized materials did not contain

D-methamphetamine or that the tests relied upon by the government

were incapable of distinguishing between the two isomers.

Consequently, the district court was not clearly erroneous in

concluding that the government had proven by a preponderance of the

evidence that the material seized from Trout's co-conspirator

contained D-methamphetamine.

III. CONCLUSION

Trout challenges his resentencing for convictions under 18

U.S.C. §§ 841 and 846. We conclude that section 841(b)(1), as it

existed at the time of Trout's offenses, was not unconstitutionally

vague; that the district court properly followed the rule of

lenity when applying this ambiguous provision to Trout; and that

the district court was not clearly erroneous in sentencing Trout

under the Guidelines applicable to D-methamphetamine. We AFFIRM.