*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50691

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RONNIE LYNN MCQUEEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(W-97-CR-020-2)

April 21, 1998

Before WISDOM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

Ronnie McQueen pleaded guilty to conspiracy to possess with

intent to distribute somewhat over 300 grams of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Though the sentencing

guidelines prescribed a prison term of 46-57 months, the district

court sentenced McQueen to the mandatory 120-month minimum sentence
 

2 Section 841(b)(1)(A)(viii) provides that in cases “involving

100 grams or more of methamphetamine, its salts, isomers, and salts

of its isomers or one kilogram or more of a mixture or substance

containing a detectable amount of methamphetamine, its salts,

isomers, or salts of its isomers, [the defendant] shall be

sentenced to a term of imprisonment which may not be less than 10

years or more than life.”

 

3 United States v. Kinder, 946 F.2d 362, 367-68 and n. 2 (5th

Cir. 1991).

 

4 United States v. Myers, No. 94-50423, slip op. at 4 (5th

Cir. March 28, 1995) (unpublished).

2

prescribed by § 841 for certain quantities of methamphetamine.2 On

direct appeal, McQueen argues that his sentence must be vacated

because (1) the “100 grams or more of methamphetamine” that trigger

the statutory minimum sentence refer only to that quantity of pure

methamphetamine, and (2) the district court did not make sufficient

findings as to the purity of the methamphetamine attributable to

him. McQueen’s argument is persuasive. We therefore vacate his

sentence and remand the cause to the district court for

resentencing.

We have held that the “100 grams or more of methamphetamine”

language of § 841(b)(1)(A)(viii) refers only to pure

methamphetamine.3 We have further held that a district court may

impose the statutory minimum sentence only if the government

presents evidence from which it might be reasonably inferred that

the total amount of methamphetamine attributable to a defendant

“had a sufficient percentage of purity so as to contain at least

100 grams of pure methamphetamine.”4

In the case at bar, the government did not adduce evidence

sufficient to permit the district court to find, by a preponderance
 

5 United States v. Bogusz, 43 F.3d 82, 87 (5th Cir. 1994).

 

6 In fact, the district court incorrectly stated at McQueen’s

sentencing hearing that “purity is not relevant.” 

3

of the evidence,5 that the methamphetamine attributable to Cruz

contained at least 100 grams of pure methamphetamine. The record

merely demonstrated that Cruz and his coconspirators were

distributing methamphetamine of high quality. Without more, we

cannot agree with the government’s contention that the district

court properly inferred that the defendants distributed at least

100 grams of pure methamphetamine.6 

We remand to the district court to permit the government to

present evidence from which it might be reasonably inferred that

the total amount of methamphetamine attributable to McQueen was

sufficiently pure as to contain at least 100 grams of pure

methamphetamine. Only if the government meets its burden may the

district court reimpose the statutory minimum sentence of 120

months. 

VACATED AND REMANDED.