*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-50474

Summary Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RONALD LADD FALDYN,

Defendant-Appellant.

_______________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

(A-90-CR-79)

_______________________________________________________________

May 08, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Ronald Ladd Faldyn appeals the district court's denial of his

motion for a reduction of sentence pursuant to 18 U.S.C. §

3582(c)(2) and U.S.S.G. § 1B1.10. We affirm.

Pursuant to a plea agreement, Faldyn pleaded guilty to two

offenses: maintaining a place for manufacturing methamphetamine in

violation of 21 U.S.C. 856(A)(1); and endangering human life while

illegally manufacturing methamphetamine in violation of 21 U.S.C.

§ 858. The district court sentenced Faldyn to concurrent prison
 

1Section 3582(c)(2) provides in pertinent part:

(c) Modification of an imposed term of imprisonment.

 ...

 

(2) in the case of a defendant who has been sentenced to

a term of imprisonment based on a sentencing range that

has subsequently been lowered . . . the court may reduce

the term of imprisonment, after considering the factors

set forth in section 3553(a) to the extent that they are

applicable, if such a reduction is consistent with

applicable policy statements issued by the Sentencing

Commission.

18 U.S.C. § 3582(c)(2).

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terms of 150 months for the first offense and 120 months for the

second. Faldyn's prison sentence constituted a significant

downward departure of seven levels from Faldyn's original

sentencing range under the United States Sentencing Guidelines

("U.S.S.G." or the "Guidelines"). This reduction was attributable

to Faldyn's acceptance of responsibility and his post-arrest

cooperation with the government. U.S.S.G. §§ 3E1.1, 5K1.1(a). 

Faldyn appealed his sentence, and this court affirmed.

United States v. Faldyn, No. 91-81813, slip op. (5th Cir. Nov. 21,

1991). We noted in our decision that, under the Guidelines, the

district court should have used a sentencing range of 151-188

months in sentencing Faldyn. However, the court mistakenly used a

lower range of 135-168 months in arriving at Faldyn's 150-month

prison term. 

Faldyn later filed a motion with the district court for a

reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2)1 and
 

2U.S.S.G. § 1B1.10 provides in pertinent part:

§ 1B1.10. Retroactivity of Amended Guideline Range (Policy

Statement)

(a) Where a defendant is serving a term of

imprisonment, and the guideline range applicable to

that defendant has subsequently been lowered as a

result of an amendment to the Guidelines Manual ...

a reduction in the defendant's term of imprisonment

is authorized under 18 U.S.C. § 3582(c)(2). ... (b)

In determining whether, and to what extent, a

reduction in sentence is warranted for a defendant

eligible for consideration under 18 U.S.C. §

3582(c)(2), the court should consider the sentence

that it would have imposed had the amendment(s) to

the guidelines ... been in effect at the time the

defendant was sentenced. 

U.S.S.G. § 1B1.10.

 

3Amendment 484 modified the Commentary to § 2D1.1 of the

Guidelines in order to address an inter-circuit conflict regarding

the meaning of the term "mixture or substance." In pertinent part,

the new language added to the Commentary provides: "Mixture or

substance does not include materials that must be separated from

the controlled substance before the controlled substance can be

used. Examples of such materials include ... waste water from an

illicit laboratory used to manufacture a controlled substance."

Amendment 484, U.S.S.G. App. C (1995). 

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U.S.S.G. § 1B1.10.2 In his motion, Faldyn asked the court to

reduce his 150-month prison sentence to 30 months because of the

retroactive effect of Amendment 4843 to the Guidelines. Faldyn

claimed that he was eligible for resentencing under Amendment 484,

which would require a recalculation of his sentence based upon the

actual amount of methamphetamine (excluding any manufacturing

byproducts such as waste water) that was seized from him. Faldyn

maintained that he was sentenced for 14.8 kilograms of controlled

substances that contained only trace amounts of methamphetamine and
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consisted primarily of manufacturing byproducts. According to

Faldyn, a quantitative analysis of the seized substances had never

been performed. He therefore asked that the actual amounts of

methamphetamine be established by the district court at a

resentencing.

The district court, without calculating the sentence that

Faldyn would have received if Amendment 484 had been in place when

Faldyn was originally sentenced and without conducting a hearing,

denied Faldyn's motion for a reduction of sentence. United States

v. Faldyn, No. A-90-CR-079(6) (W.D. Tex. June 9, 1995) (order

denying motion for reduction of sentence is referred to hereinafter

as the "Order"). 

On appeal, Faldyn argues that the district court abused its

discretion in denying his motion for reduction by (1) refusing to

hold an evidentiary hearing to compute the actual quantity of

methamphetamine contained in the substances that were seized; and

(2) failing to consider the sentence that would have been imposed

if Amendment 484 had been in effect at the time that Faldyn was

originally sentenced. See 18 U.S.C. § 3582(c)(2); U.S.S.G. §

1B1.10.

The decision to reduce a sentence under 18 U.S.C. § 3582(c)(2)

is discretionary, and we therefore review the district court's

decision only for an abuse of that discretion. United States v.

Shaw, 30 F.3d 26, 28 (5th Cir. 1994). Our review of this record

reveals no such abuse.
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Our court has previously explained that section 3582(c)(2)

permits a district court to reduce a defendant's sentence where the

term of imprisonment was originally based on a Guideline range that

was subsequently lowered, and where the reduction would be

consistent with the applicable policy statements in the Guidelines.

United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). The

statute also directs the district court to consider the factors

enumerated in 18 U.S.C. § 3553(a), which include: the nature and

the circumstances of the offense and the history and

characteristics of the defendant; the need for the sentence imposed

to reflect the seriousness of the offense and to protect the public

from further crimes of the defendant; the kinds of sentences

available; any pertinent Guidelines policy statement; and the need

to avoid unwarranted sentencing disparities among defendants with

similar records found guilty of similar conduct. 18 U.S.C. §

3553(a); United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir.

1995). Our court has further explained that Amendment 484 of the

Guidelines effectively reduced certain sentencing ranges by

excluding from a controlled substance's weight those substances,

such as waste water, that must be separated out before the drug can

be used. United States v. Bergman, No. 94-20878, slip op. at 2

(5th Cir. Sept. 20, 1995); see also Amendment 484, U.S.S.G. App. C

(1995); U.S.S.G. § 2D1.1, comment (n.1) (1995).

Neither the district court in its Order nor the government on

appeal dispute Faldyn's eligibility for a reduction of sentence
-6-

under Amendment 484. Indeed, the district court's Order expressly

acknowledges Faldyn's argument that he is eligible for a sentence

reduction under Amendment 484 because waste water was used in

calculating Faldyn's base offense level. Order at 2. The district

court, however, declined to exercise its discretion to reduce

Faldyn's sentence in the light of its application of the section

3553(a) factors to the facts of Faldyn's case. After performing a

factual inquiry that included a review of the presentence

investigation report and the complete record of this case, the

district court specifically noted that Faldyn was involved with

many other persons in the manufacture and distribution of multipound quantities of methamphetamine and that his criminal history

reflected that he had been involved in the manufacture of

methamphetamine on other occasions. The district court concluded

that Faldyn's sentence was necessary to reflect the seriousness of

his offense, promote respect for the law, provide just punishment,

afford adequate deterrence, and protect the public from further

crimes that Faldyn might commit.

We agree with the district court that on this record the

section 3553(a) factors compel a conclusion that no reduction is

warranted in Faldyn's case. We are further persuaded, in the light

of these compelling factors, that a hearing to determine the actual

amount of methamphetamine contained in the seized substances and a

recalculation of Faldyn's sentence under the new Guidelines would

be a meaningless exercise and would serve no purpose consistent
 

4Our holding today does not contravene our holding in a prior

unpublished opinion, United States v. Bergman, No. 94-20878, slip

op. (5th Cir. Sept. 20, 1995). In Bergman, we remanded to the

district court for a determination of the actual amount of

phenylacetone (a precursor chemical necessary for the manufacture

of methamphetamine) present in the controlled substance that was

seized from the defendant because the actual amount was in doubt

and that amount had been the primary factor in determining the

defendant's sentence range. On the facts of the Bergman case, we

held that it was an abuse of discretion to deny a section

3582(c)(2) motion without further factual inquiry. Id. at 3.

Unlike Bergman, the district court in this case acknowledged

Faldyn's argument that the actual amount of methamphetamine was in

doubt and that waste water was used in calculating his base

sentence; the court then proceeded to perform the necessary factual

inquiry. The district court reviewed Faldyn's entire record and

analyzed the relevant statutory factors listed in 18 U.S.C. §

3553(a). The district court's factual inquiry and resulting legal

conclusions clearly support its decision to deny any further

reduction of Faldyn's sentence. 

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with the overall goals and policies of the Guidelines. Even if

such a hearing were to result in a determination that Faldyn's base

level under Amendment 484 would be lower than the already-reduced

sentence that he originally received, the district court would

still be required under section 3582(c)(2) to consider the

applicable section 3553(a) factors. Thus, based on the district

court's assumption of Faldyn's eligibility for a reduction of his

sentence under Amendment 484 and based on the section 3553(a)

factors that it has already articulated in its Order, the district

court would justifiably decline to reduce Faldyn's sentence

notwithstanding the results of a hearing or a sentence

recalculation.4 
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The district court's judgment is therefore

A F F I R M E D.