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. *

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 Submitted: June 13, 1995

 Filed: November 30, 1995

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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

guilty plea to charges of conspiracy to manufacture and distribute 100

grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1)

(1988). He argues that the district court erred in determining his base 1

offense level by using the wrong table in the Sentencing Guidelines, by

reducing the precursor chemicals to an equivalent amount of methamphetamine

and by holding him responsible for dextro-methamphetamine, in not finding

the government violated its plea bargain agreement by providing information

outside of the stipulated facts, and in failing to comply with Federal Rule

of Criminal Procedure 32 in conducting the
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sentencing hearing. We affirm the sentence imposed.

On October 8, 1992, Griggs pleaded guilty to the first count of a

three-count indictment against him. In doing so, he specifically pleaded

guilty to conspiracy to: (1) possess phenylacetic acid with intent to

manufacture methamphetamine; (2) manufacture 100 grams or more of

methamphetamine; (3) possess with intent to distribute 100 grams or more

of methamphetamine; and (4) distribute 100 grams or more of

methamphetamine. In conjunction with his guilty plea, Griggs signed a

written stipulation to facts relevant for sentencing, including that he had

manufactured methamphetamine on six different occasions and that on each

occasion he used approximately five pounds of phenylacetic acid to produce

twenty-two ounces of methamphetamine. Griggs also admitted that he

instructed a coconspirator, Bruce Harrington, to acquire twenty-five pounds

of phenylacetic 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 acceptance 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

facts, the government agreed to dismiss Counts Two and Three against

Griggs. It also agreed to make a nonbinding recommendation to the district

court that Griggs' sentence be 188 months. Finally, the government agreed

to bring no additional charges against Griggs arising out of the

investigation in his case.

Griggs failed to appear at his January 8, 1993 sentencing hearing.

Law enforcement officials apprehended Griggs on January 2, 1994. They

found a total of 5.6 kilograms of methamphetamine in Griggs' possession and

on his property at the time of his arrest.
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The United States Probation Office prepared a presentence report for

Griggs' sentencing. Using the facts to which Griggs stipulated, the

presentence report stated that Griggs made 20 to 22 ounces, or 567 to 623

grams, of methamphetamine on 6 different occasions, using 5 pounds of

phenylacetic acid each time. Thus, over these 6 occasions, Griggs had

produced a total of 3.4 to 3.7 kilograms of methamphetamine. In addition

to this methamphetamine, the presentence report held Griggs responsible for

the 25 pounds of phenylacetic acid which Griggs instructed Harrington to

obtain. Based on Griggs' stipulation that he used 5 pounds of phenylacetic

acid to produce 567 to 623 grams of methamphetamine, the presentence report

converted the 25 pounds of phenylacetic acid to 2.8 to 3.1 kilograms of

methamphetamine. The presentence report also held Griggs responsible for

the 5.6 kilograms of methamphetamine found during his arrest on January 2,

1994. After adding all of the above amounts together, the presentence

report held Griggs responsible for a total of 11.8 to 12.4 kilograms of

methamphetamine.

The presentence report fixed Griggs' base offense level at thirty-six

using the amount of methamphetamine for which Griggs was responsible and

the Drug Quantity Table in subsection 2D1.1(c) of the Sentencing

Guidelines. Relying in part on Griggs' stipulation, the presentence report

added two points to Griggs' base offense level for Griggs' possession of

a firearm during the offense, and two points for Griggs' being a supervisor

during the offense. The presentence report also added two points because

Griggs obstructed justice by failing to appear at his January 8, 1993

sentencing hearing. With these additions, the presentence report found

Griggs' total offense level to be forty-two.

The district court sentenced Griggs on September 23, 1994. At the

sentencing hearing, Griggs made only one objection to the presentence

report. Griggs asked the district court for a two-point reduction in his

offense level for his acceptance of
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responsibility even though the presentence report did not give him such a

reduction. The court, after determining that this 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.

The district court sentenced Griggs in accordance with the

presentence report as modified by Griggs' request. Griggs' offense level

was forty and his criminal history category was I. Accordingly, the

Sentencing Guidelines gave the district court a sentencing range of 292 to

365 months. The district court sentenced Griggs to 292 months. Griggs now

appeals his sentence.

I.

Griggs argues that the district court incorrectly calculated his

sentence under the Sentencing Guidelines by using the Drug Quantity Table,

rather than the Chemical Quantity Table, to calculate his base offense

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 Drug

Quantity Table or its conversion of the phenylacetic acid. Thus, we cannot

reverse the 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 error is an obvious error which harms substantial rights of the

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, correct

a plain error that seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id. at 1779.

In this case, we apply the United States Sentencing Commission,

Guidelines Manual of November 1993 because it was 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 use of the Chemical Quantity Table in sentencing. Subsection

2D1.11(c)(1) states that "[i]f the offense involved unlawfully

manufacturing a controlled substance, or attempting to manufacture a

controlled substance unlawfully, apply § 2D1.1 . . . if the resulting

offense level is greater than that determined" under subsections 2D1.11(a)

and 2D1.11(b). Section 2D1.11 further explains that subsection

2D1.11(c)(1) applies when the defendant has "completed the actions

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 Quantity

Table in section 2D1.1, a court must first determine the amount of

methamphetamine for which the defendant should be held responsible. USSG

§ 2D1.1(c). In determining this amount, the court may approximate the

quantity of methamphetamine by looking at the circumstances of the

defendant's drug conspiracy. USSG § 2D1.1, comment. (n.12). Once the

court has determined the amount of methamphetamine for which the defendant

is responsible, the court finds that amount on the Drug Quantity Table to

determine the defendant's base offense level. USSG § 2D1.1(c).

Griggs argues that the district court should have used the Chemical

Quantity Table in section 2D1.11 of the Sentencing Guidelines to sentence

him, rather than the Drug Quantity Table in section 2D1.1. Griggs contends

that the court improperly converted the phenylacetic acid which he

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 sentence by using the weight of the phenylacetic acid

for which he was responsible and the Chemical Quantity Table in section

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 that he would have received

a shorter sentence if the district court had used 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 and

Harrington manufactured methamphetamine on his ranch approximately six

times. Thus, under subsection 2D1.11(c)(1), the district court was correct

in using the Drug Quantity Table in section 2D1.1 because Griggs' offense

involved 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 phenylacetic

acid for which Griggs was responsible to an amount of methamphetamine. To

find Griggs' base offense level on the Drug Quantity Table, the court must

determine how much methamphetamine was involved in Griggs' drug conspiracy.

As the commentary to section 2D1.1 indicates, the court may look at the

circumstances of Griggs' conspiracy to approximate the amount of

methamphetamine. USSG § 2D1.1, comment. (n.12). In this case, the

district court properly approximated the amount of methamphetamine by

calculating how much methamphetamine Griggs could have produced from the

phenylacetic acid he conspired to obtain.

Griggs cites Hoster to support his argument that the district court

should have used the Chemical Quantity Table in section 2D1.11. Hoster,

however, is factually different from Griggs' situation. Unlike Griggs,

Hoster pleaded guilty to only possession of methamphetamine 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

with intent to manufacture methamphetamine and conspiracy to manufacture

methamphetamine. See id. at 1381; United States v. O'Leary, 35
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F.3d 153, 155 (5th Cir. 1994) (per curiam). Additionally, we are not

persuaded by Hoster's reasoning because the court in Hoster failed to

discuss subsection 2D1.11(c)(1) and its impact on a defendant's sentencing.

Hoster, 988 F.2d at 1380-83. Cf. O'Leary, 35 F.3d at 154-55. Nothing in

Hoster leads us to conclude that the district court erred in sentencing

Griggs.

II.

Griggs argues that the government violated its plea agreement with

him by allowing the district court to consider conduct outside the

stipulated facts for his sentencing.

A district court must examine all the circumstances surrounding a

convicted defendant's offense when sentencing under the Sentencing

Guidelines. USSG § 1B1.3(a). The court can use conduct for which the

defendant has not been convicted or charged in determining 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. 1420 (1993). Additionally,

any plea agreement entered into by the defendant and the government cannot

limit the district court in examining the defendant's conduct for

sentencing. USSG § 6B1.4(d); United States v. Lutfiyya, 26 F.3d 1468, 1469

(8th Cir. 1994) (per curiam).

The government, however, must abide by its plea agreement with a

defendant. When a guilty plea rests in any significant degree on a promise

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 fully

binding on the government.

Griggs argues that the government violated its plea agreement with

him during his sentencing by offering the court information outside of the

stipulated facts contained in the plea agreement. 
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Griggs argues that the government should not have informed the district

court about his instructions to Harrington to purchase twenty-five pounds

of phenylacetic acid, his possession of a firearm, or his possession of

methamphetamine during his January 2, 1994 arrest. He also asserts that

it was improper for the district court to use this 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 that

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. Griggs

failed to raise these arguments during his sentencing hearing, thus, we may

reverse only for plain error. See Olano, 113 S. Ct. at 1776-79.

The government did not violate its plea agreement with Griggs in this

case. First, the events of January 2, 1994, occurred after Griggs entered

into his plea agreement with the government. Second, nowhere in the plea

agreement did the government agree to limit the information it would give

the district court for sentencing. Additionally, when the court asked

Griggs if anyone had made any other offer, promise, or assurance of any

kind outside of the written plea agreement to induce him to plead guilty,

he said, "No." Griggs' attorney stated in Griggs' presence that the plea

agreement was the entire agreement between Griggs and the government.

Later in the plea hearing, Griggs had an opportunity 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 government

violated its plea agreement with Griggs by providing the district court

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,

whether uncharged, charged, or charged and dismissed. USSG § 1B1.3(a).

Griggs' plea agreement did not limit the government or the district court

to the stipulated facts for determining his sentence. The district court

was correct in considering all of Griggs' relevant conduct during its

sentencing of Griggs.

The Eleventh Circuit's opinion in Nelson does not affect our

conclusions in Griggs' case. In Nelson, the government promised the

defendants that it would 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 is

factually different from this case and does not change our analysis of

Griggs' arguments.

III.

Griggs argues that the district court violated Federal Rule of

Criminal Procedure 32 by failing to adequately determine whether Griggs had

an opportunity to read and discuss the presentence report with his

attorney. The district court specifically asked Griggs' attorney at the

sentencing hearing in Griggs' presence whether he had reviewed and

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. We

conclude that the district court complied with Rule 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 district court only impliedly found that some portion of 2

Griggs' methamphetamine was dextro-methamphetamine. Under

subsection 2D1.1(c), the weight of a mixture of two controlled

substances is assigned to the controlled substance that results in

the greater offense level. USSG § 2D1.1(c), note *. Thus, the

district court need only have found that some portion of Griggs'

methamphetamine mixture was dextro-methamphetamine to sentence him

for dextro-methamphetamine or "methamphetamine" using the full

weight of the mixture.

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erred in assuming that Griggs was responsible for dextro-methamphetamine,

rather than levo-methamphetamine, and improperly sentenced him based on

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-methamphetamine. We cannot say that it 2

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

United States 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, 832

(11th Cir. 1995). Additionally, Griggs raises this argument for the first

time in his reply brief to this court. Generally, we do not consider

arguments raised for the first time in a reply brief, and there is no

adequate reason to deviate from that rule in this 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.