* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MANUEL DIAZ SANCHEZ, Defendant-Appellant. No. 97-7089 (E. District of Oklahoma) (D.C. No. CR-91-12-S)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordere d submitted without oral argument.-2-

Manuel D. Sanchez, proceeding pro se , appeals the district court’s denial of his “Motion to Modify Sentence” brought pursuant to 18 U.S.C. § 3582(c)(2). According to Sanchez, the district court erred in d enying the Motion to Modify without first holding a hearing. This court exerci ses jurisdiction pursuant to 28 U.S.C. § 1291 and affirms

. Sanchez was indicted in a multi-count, multi-defend ant controlled substance distribution conspiracy on March 15, 1991 . On May 29, 1991, Sanchez pleaded guilty to count eight of the indictment, wh ich alleged a violation of 21 U.S.C. § 841(a)(1), possession of marijuana withintent to distribute. In determining Sanchez’s base offense level for purpos es of sentencing, the district court considered, over Sanchez’s objection, a large quantity of cocaine as relevant conduct. This court affirmed Sanchez’s sentence ondirect appeal. United States v. Sanchez , No. 91-7100, 1992 WL 74128 (10th Cir. April 6, 19 92). Sanchez thereafter filed a petition pursuant to 28 U.S.C. § 2255 challenging his sentence. The district court denied the petition and this cou rt affirmed. United States v. Sanchez , No. 96-7039, 1997 WL 8842 (10th Cir. January 10, 1997). Soon thereafter, Sanchez initiated this action, his third attempt to have his sentence modified, by filing a Motion to Modify wit h the district court pursuant to1 Section 3582(c)(2) provides as follows: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that ha s subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applica ble, if such a reduction is consistent with applicable policy stat ements issued by the Sentencing Commission.

2 U.S.S.G. § 2D1.1 establishes the base offense level for controlled substance crimes. -3- 18 U.S.C. § 3582(c)(2). 1 Although Sanchez’s arguments are nearly incomprehensible, he appeared to argue that Amendme nts 484 and 516 to the United States Sentencing Guidelines, effective Nove mber 1, 1995, changed the manner in which his base offense level should be ca lculated and, therefore, entitled him to a sentencing reduction pursuant to §3582(c)(2). The district court denied the Motion by minute order on July 15, 1997. It is from this minute order that Sanchez appeals. Sanchez argues on appeal that the district court er red when it denied his Motion to Modify without first holding a hearing. Because Sanchez’s arguments regarding the Amendments are both frivolous and mer itless, the district court did not err in denying Sanchez’s Motion without first h olding a hearing. Amendment 484 resolved an inter-circuit conflict byamending the commentary to guideline § 2D1.1. 2 The newly amended commentary makes clear that in establishing the weight of a controlled sub stance, the courts should not-4-

include “materials that must be separated from the controlled substance before the controlled substance can be used.” U.S.S.G. § 2D1. 1 commentary. In an absurd reading of Amendment 484, Sanchez apparently argues that the Amendment prevents the combining of different types of drugs ( i.e. , marijuana and cocaine) in determining a defendant’s base offense level. Thus , according to Sanchez’s reading of the Amendment, the district court was ob ligated to consider either the marijuana or the cocaine but not both in determining his base offense level. In contrast to Sanchez’s reading of Amendments 484, the purpose of the Amendment is clear: the base offense level for drug crimes should be based on the actual weight of the illegal drugs, excluding u nusable byproducts and packaging materials from the calculations. Amendme nt 484 does not eliminate consideration, under the relevant conduct provision s, of controlled substances other than those found in the count of conviction. Because Sanchez’s argument based on Amendment 484 is completely without merit, the district court did not err in denying the Motion to Modify on this ground without first holding a hearing. Sanchez’s arguments with regard to Amendment 516 ar e similarly flawed. Amendment 516 altered the equivalency used to conve rt marijuana plants to usable marijuana for purposes of calculating a defe ndant’s base offense level. Prior to the Amendment, § 2D1.1 provided that “In the case of an offense3 It must be further noted that the 5 KG of cocaine attributed to Sanchez as

relevant conduct, an attribution upheld by this cou rt on direct appeal and on collateral proceedings, is alone sufficient to supp ort a base offense level of 32. U.S.S.G. § 2D1.1(4). -5- involving marijuana plants, if the offense involved (A) 50 or more marihuana plants, treat each plaint as equivalent to 1 KG of marihuana; (B) fewer than 50 marihuana plants, treat each plant as equivalent to 100 G of marihuana.” After the Amendment, § 2D1.1 simply provided that, without regard to the number of plants at issue, each plant should be considered as equivalent to 100 G of marijuana. Sanchez asserts, without explanation, that he is entitled to a reduction in his base offense level based on Amendment 516. The rec ord makes clear, however, that Sanchez pleaded guilty to involvement in a plo t to distribute 1200 pounds of marijuana. His case did not involve plants and, th erefore, did not call into question the issue of conversion between plants andusable marijuana. Accordingly, Amendment 516 is completely inapplicab le to his case. 3-6-

Because Sanchez’s Motion to Modify is both frivolou s and meritless, the district court did not err in denying the Motion wi thout a hearing. Accordingly, the Order of the district court denying the Motion to Modify is hereby
AFFIRMED

. ENTERED FOR THE COURT,

Michael R. Murphy Circuit Judge