### The Honorable Donald J. Stohr, United States District Judge 1 

### for the Eastern District of Missouri. ___________ No. 94-3493

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Steven Griggs, * * Defendant - Appellant. *

___________ Submitted: June 13, 1995 Filed: November 30, 1995

___________ Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and JOHN R. GIBSON, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.

Steven Griggs appeals the sentence imposed upon him following a guiltyplea to charges of conspiracy to manufacture and distribute 10 0 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1 ) (1988). H e argues that the district court erred in determining his base 1 offense level by using the wrong table in the Sentencing Guidelines, b y reducing the precursor chemicals to an equivalent amount of methamphetamin e and by holding him re sponsible for dextro-methamphetamine, in not finding the government violated its plea bargain agreement by providing informatio n outside of the stipulated facts, and in failing to comply with Federal Rul e of Criminal Procedure 32 in conducting the

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sentencing hearing. We affirm the sentence imposed.

On Octobe r 8, 1992, Griggs pleaded guilty to the first count of a three-count indictmen t against him. In doing so, he specifically pleaded guilty to conspiracy to: (1) possess phenylacetic acid with intent t o
man ufacture methamphetamine; (2) manufacture 100 grams or more o f methamphetamine; (3) possess with intent to distribute 100 grams or more of met hamphetamine; and (4) distribute 100 grams or more o f methamphetamine. In conjunction with his guilty plea, Griggs signed a written stipulation to facts relevant for sentencing, including that he ha d manufactured methamphetamine on six different occasions and that on each occasion he used approximately five pounds of ph enylacetic acid to produce twenty -two ounces of methamphetamine. Griggs also admitted that h e instructed a coconspirator, Bruce Harrington, to acquire twenty-five pound s of p henylacetic acid for the purpose of manufacturing methamphetamine

. Finally, Griggs and the government agreed that Griggs was entitled to a two-point reduction in his offense level for acc eptance of responsibility, a two-point addition for possession of a weapon, and a two-point addition for supervising a coconspirator.
In consideration for Griggs' guilty plea and stipulation to the above fact s, the government agreed to dismiss Counts Two and Three agains t Griggs. It also agreed to make a nonbinding recommendation to the distric t court that Griggs' sentence be 188 months. Fina lly, the government agreed to bring no additional charges against Griggs arising out of th e investigation in his case.
Griggs f ailed to appear at his January 8, 1993 sentencing hearing

. Lawenforcement officials apprehended Griggs on January 2, 1994. The y found a total of 5.6 kilograms of methamphetamine in Griggs' possession an d on his property at the time of his arrest.

### -3- The United States Probation Office p repared a presentence report for Grig gs' sentencing. Using the facts to which Griggs stipulated, th e presentence report st ated that Griggs made 20 to 22 ounces, or 567 to 623 grams, of methamphetamine on 6 different occasions, using 5 pounds o f pheny lacetic acid each time. Thus, over these 6 occasions, Griggs ha d produced a total of 3 .4 to 3.7 kilograms of methamphetamine. In addition to this methamphetamine, the presentence report held Griggs responsible fo r the 25 pounds of phenylacetic acid which Griggs instructed Harrington to obtain. Based on Griggs' stipulation that he used 5 pounds of phenylaceti c acid to produce 567 to 623 grams of methamphetamine, the presentence repor t converted the 25 pounds of phenylacetic acid to 2.8 to 3.1 kilograms o f methamphetamine. The presentence report also held Griggs responsible for the 5.6 kilograms of methamphetamine found durin g his arrest on January 2, 1994. After adding all of the above amounts together, the presentenc e report he ld Griggs responsible for a total of 11.8 to 12.4 kilograms o f methamphetamine.
The presentence report fixed Griggs' base offense level at thir ty-six using the amount of methamphetamine for which Griggs was responsible and the Dr ug Quantity Table in subsection 2D1.1(c) of the Sentencin g Guidelines. Relying in part on Griggs' stipulation, the presentence repor t added two points to Griggs' base offense level for Griggs' possession of
a firearm during the offense, and two points for Griggs' being a superviso r during the offense. The presentence report also added two points because Griggs obs tructed justice by failing to appear at his January 8, 199 3 senten cing hearing. With these additions, the presentence report foun d Griggs' total offense level to be forty-two.

The dis trict court sentenced Griggs on September 23, 1994. At th e senten cing hearing, Griggs made only one objection to the presentenc e report. Griggs askedthe district court for a two-point reduction in his offense level for his acceptance of

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responsibility even t hough the presentence report did not give him such a reduction. The court, after determining that th is case was an exceptional one, granted Griggs' request for a two-point reduction for acceptance of responsibility. After this request, Griggs made no more objections.

Th e district court sentenced Griggs in accordance with th e presentence report as modified by Griggs' request. Griggs' offense level
was forty and his criminal history category was I. Accordingly, th e Sentencing Guidelines gave the district court a sentencing range of 292 to 365 months. The district court sentenced Griggs to 292 months. Griggs no w appeals his sentence.

I.
Griggs argues that the district court incorrectly calculated hi s sentence under the Sentencing Guidelines by usin g the Drug Quantity Table, rather than the Chemical Quantity Table, to calculate his base offens e level and by converting the phenylacetic acid he conspired to possess into methamphetamine.
Griggs failed to object to the district court's use of the Dru g Quantity Table or its conversion of the phenylacetic acid. Thus, we canno t
reverse t he district court unless its actions are plain error. Fed. R

. Crim. P. 52(b); United States v. Olano , 113 S. Ct. 1770, 1776-79 (1993). Plain erro r is an obvious error which harms substantial rights of th e defendant. Olano , 113 S. Ct. at 1776-78. If the error is plain, we may correct it at our discretion. Id. at 1778-79. We should, however, correc t
a p lain error that seriously affects the fairness, integrity, or publi c reputation of judicial proceedings. Id. at 1779.

In this case, we apply the United States Sentencing Commission , Guidelines Manual of November 1993 because it wa s in effect at the time of Griggs' sentencing hearing and there are no

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Ex Post Facto Clause concerns. United States v. Gullickson , 981 F.2d 344, 346 (8th Cir. 1992). Section 2D1.11 of the Sentencing Guidelines governs the u se of the Chemical Quantity Table in sentencing. Subsectio n 2D1 .11(c)(1) states that "[i]f the offense involved unlawfull y
ma nufacturing a controlled substance, or attempting to manufacture a controlled substance unlawfully, apply § 2D1.1 . . . if the resultin g offense level is greater than that determined" u nder subsections 2D1.11(a) and 2D1.11(b). Section 2D1.11 further explains that subsectio n 2D1.11(c)(1) applies when the defendant has "completed the action s sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to manufacture a controlled substance unlawfully." USSG § 2D1.11, comment. (n.2).
To calculate a defendant's base offense level using the Drug Qu antity Tab le in section 2D1.1, a court must first determine the amount o f methamphetamine for which the defendant should be held responsible. USSG § 2D1 .1(c). In determining this amount, the court may approximate th e quanti tyof methamphetamine by looking at the circumstances of th e defen dant's drug conspiracy. USSG § 2D1.1, comment. (n.12). Once th e court has determined the amount of methamphetami ne for which the defendant is responsible, the c ourt finds that amount on the Drug Quantity Table to determine the defendant's base offense level. USSG § 2D1.1(c).
Griggs ar gues that the district court should have used the Chemical Quantity Table in sec tion 2D1.11 of the Sentencing Guidelines to sentence him, rather than the Drug Quantity Table in section 2D1.1. Griggs contend s that t he court improperly converted the phenylacetic acid which h e conspired to obtain to an amount of methamphetamine for sentencing under the Drug Quantity Table. According to Griggs, the district court should have determined his s entence by using the weight of the phenylacetic acid for which he was responsible and the Chemical Quantity Table in sectio n 2D1.11. Griggs cites United States v. Hoster , 988 F.2d 1374 (5th Cir.

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1993), to support his argument. Griggs argues t hat he would have received a shorter sentence if the district court had use d this method to calculate his sentence.
We reject Griggs' argument that the district court should have used the Chemical Quantity Table in sentencing him. Griggs admitted that he an d Harr ington manufactured methamphetamine on his ranch approximately si x times. Thus, under subsection 2D1.11(c)(1), the district court was correc t in using the Drug Qua ntity Table in section 2D1.1 because Griggs' offense invo lved the unlawful manufacture of methamphetamine and section 2D1. 1 gives a higher base offense level than section 2D1.11. USSG § 2D1.11(c)(1).

The district court was also correct in converting the phenylaceti c acid for which Griggs was responsible to an amou nt of methamphetamine. To find Griggs' base offense level on the Drug Quan tity Table, the court must determine how much methamphetamine was involved in Griggs' drug conspiracy

. As the co mmentary to section 2D1.1 indicates, the court may look at th e circum stances of Griggs' conspiracy to approximate the amount o f methamphe tamine. USSG § 2D1.1, comment. (n.12). In this case, th e distric t court properly approximated the amount of methamphetamine b y calculating how much methamphetamine Griggs could have produced from the phenylacetic acid he conspired to obtain.
Griggs ci tes Hoster to support his argument that the district court should have used the Chemical Quantity Table in section 2D1.11. Hoster , howeve r, is factually different from Griggs' situation. Unlike Griggs , Hoster pleaded guilty to only possession of meth amphetamine with intent to distribute. Hoster , 988 F.2d at 1376. Griggs pleaded guilty to a fourpart conspiracy which consisted of conspiracy to possess phenylacetic acid withintent to manufacture methamphetamine and conspiracy to manufacture methamphetamine. See id. at 1381; United States v. O'Leary , 35

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F.3 d 153, 155 (5th Cir. 1994) (per curiam). Additionally, we are no t persuad ed by Hoster 's reasoning because the court in Hoster failed t o discuss subsection 2D1.11(c)(1) and its impact on a defendant's sentencing

. Hoster , 988 F.2d at 1 380-83. Cf. O'Leary , 35 F.3d at 154-55. Nothing in Hoster leads us to conclude that the district court erred in sentencin g Griggs.

II.
Griggs argues that the government violated its plea agreement wit h himby a llowing the district court to consider conduct outside th e stipulated facts for his sentencing.

Adistrict court must examine all the circumstances surrounding a convicted defendant's offense when sentencing under the Sentencin g Guidelin es. USSG § 1B1.3(a). The court can use conduct for which th e defendant has not been convicted or charged in d etermining the defendant's sentence. USSG § 1B1.3(a); United States v. Galloway , 976 F.2d 414 (8th Cir. 1992) (en banc), cert. denied , 113 S. Ct. 1 420 (1993). Additionally, any plea agreement entered into by the defendant and the government cannot limit the district court in examining the defendant's conduct fo r sentencing. USSG § 6B1.4(d); United States v. Lutfiyya , 26 F.3d 1468, 146 9 (8th Cir. 1994) (per curiam).

Th e government, however, must abide by its plea agreement with a defendant. When a guilty plea rests in any significant degree on a promis e of the government, so that it is part of the inducement or consideration, the government must fulfill that promise. Santobello v. New York , 404 U.S

. 257 , 262 (1971). Consequently, the defendant's plea agreement is full y binding on the government.
Griggs argues that the government violated its plea agreement wit h him during his sentencing by offering the court information outside of the stipulated facts contained in the plea agreement.

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Gri ggs argues that the government should not have informed the distric t court about his instr uctions to Harrington to purchase twenty-five pounds of phenylacetic acid, his possession of a firearm, or his possession o f methamphetamine during his January 2, 1994 arrest. He also asserts that it was improper for the district court to use th is information to sentence him. Finally, Griggs argues that the district court should not have used conduct for which the government agreed not to charge him to increase his sentence. Griggs objects to the district court' s use of his possession of a firearm and his possession of methamphetamine during his 1994 arrest for sentencing because the government agreed not to charge him for tha t conduct. Griggs cites United States v. Nelson , 837 F.2d 1519 (11th Cir.), cert. denied , 488 U.S. 829 (1988), in support of his argument. Grigg s failed to raise these arguments during his sentencing hearing, thus, we ma y reverse only for plain error. See Olano , 113 S. Ct. at 1776-79.
The government did not violate its plea agreement with Griggs i n this case. First, the events of January 2, 1994, occ urred after Griggs entered into his plea agreeme nt with the government. Second, nowhere in the plea agreement did the gov ernment agree to limit the information it would give the district court for sentencing. Additionally, when the court aske d Griggs if anyone had made any other offer, promise, or assurance of an y kind outside of the w ritten plea agreement to induce him to plead guilty, he said, "No." Grigg s' attorney stated in Griggs' presence that the plea agreem ent was the entire agreement between Griggs and the government

. Later in the plea hearing, Griggs had an opportu nity to speak to the court and he did not contradict his attorney's answer to the court's question. In light of these facts, we see no basis for concluding that the governmen t vio lated its plea agreement with Griggs by providing the district cour t information outside of the stipulated facts.
The district court did not err in using Griggs' uncharged

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conduct to determine Griggs' sentence. In determining Griggs' sentence, the district court must examine all of the relevant conduct of his offense , whe ther uncharged, charged, or charged and dismissed. USSG § 1B1.3(a)

. Griggs' plea agreemen t did not limit the government or the district court to the stipulated fac ts for determining his sentence. The district court
was cor rect in considering all of Griggs' relevant conduct during it s sentencing of Griggs.

The Eleventh Circuit's opinion in Nelsondoes not affect ou r
conc lusions in Griggs' case. In Nelson , the government promised th e defendants that it wo uld not deviate from a statement of stipulated facts in exchange for their guilty pleas. 837 F.2d at 1521. In this case, the government did not make such a promise to Griggs. Thus, Nelson i s factu allydifferent from this case and does not change our analysis o f Griggs' arguments.

III.
Griggs argues that the district court violated Federal Rule o f Criminal Procedure 32 by failing to adequately determine whether Griggs ha d
an oppor tunity to read and discuss the presentence report with hi s attorney. The district court specifically asked Griggs' attorney at the senten cing hearing in Griggs' presence whether he had reviewed an d discussed the presentence report with Griggs. Griggs' attorney answered that he had reviewed and discussed the report with Griggs. Later in the sentencing hearing, Griggs had an opportunity to speak to the court and he did not contradict his attorney's answers to the court's questions. W e conclude that the district court complied with R ule 32. See United States v. Mays , 798 F.2d 78, 80 (3d Cir. 1986).

IV.
In his reply brief, Griggs argues that the district court

### The distric t court only impliedly found that some portion of 2 

### Griggs' methamphetamine was dextro-methamphetamine. Unde r subsection 2D1.1(c), the weight of a mixture of two controlle d substances is assigned to the controlled substance that results in the greater offense level. USSG § 2D1.1(c), note *. Thus, th e district court need only have found that some portion of Griggs ' methamphetamine mixture was de xtro-methamphetamine to sentence him for dextro-methamphetamine or "methamphetamine" using the ful l weight of the mixture. -10- erred in assuming tha t Griggs was responsible for dextro-methamphetamine, rather than levo-methamphetamine, and improperly sentenced him based o n that assumption. The district court adopted the presentence report at the sentencing hearing. By doing so, the district court impliedly found that Griggs was responsible for dextro-met hamphetamine. We cannot say that it 2

was plain error for the district court to make such a finding of fact. Cf

. United St ates v. Massey , 57 F.3d 637, 638 (8th Cir. 1995) (per curiam) ; United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994), cert. denied , 115 S. Ct. 1117 (1995). Contra United States v. Ramsdale , 61 F.3d 825, 83 2 (11th Cir. 1995). Additionally, Griggs raises t his argument for the first time in h is reply brief to this court. Generally, we do not conside r arguments raised for the first time in a reply brief, and there is n o adequate reason to deviate from that rule in thi s case. Weiner v. Eastern Ark. Planting Co. , 975 F.2d 1350, 1357 n.6 (8th Cir. 1992).
We affirm the sentence imposed by the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.