* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### AUG 21 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Respondent-Appellee,

v. EVAN MITCHELL ANDERSON,

Petitioner-Appellant. No. 00-4118 (D.C. Nos. 97-CV-300-S & 89-CR-172-S) (D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 The district court also granted petitioner a certif icate of appealability. We read that certificate to include the issue of wh ether the district court abused its discretion in denying petitioner leave to amend his § 2255 motion. -2- Petitioner Evan Mitchell Anderson appeals from an o rder of the district court denying relief on his petition filed pursuantto 28 U.S.C. § 2255. We affirm in part, reverse in part, and remand for further pr oceedings. Petitioner was convicted by a jury on six counts, a ll related to petitioner’s production of methamphetamine. His case was affirm ed by this court on direct appeal. See United States v. Anderson , 940 F.2d 593 (10th Cir. 1991). Petitioner’s § 2255 motion was referred to a magistrate judge who recommended that it be denied. Petitioner objected to this re commendation and requested leave to amend the motion. The district court adopted th e report and recommendation of the magistrate judge in its entirety and denied leave to amend. Petitioner appeals. 1 On appeal, petitioner argues that the district court erred in denying him relief because of ineffective assistance of counsel . Specifically, he argues that counsel failed to require the government to prove w hich isomer of methamphetamine he had produced, l-methamphetamine or d-methamphetamine; he failed to object to the inclusion of two specifi c quantities of the precursor chemical l-ephedrine in the calculation of his sent ence, and failed to present-3-

evidence of a lower conversion ratio. Petitioner a lso argues that the district court wrongly refused him leave to amend his motion. When reviewing the district court’s denial of a § 2 255 motion, we review the district court’s legal ruling de novo and its f actual findings for clear error. United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998). We will not find that counsel has been ineffective unless his or herperformance “fell below an objective standard of reasonableness,” Strickland v. Washington , 466 U.S. 668, 687-88 (1984), and we find it reasonably probable that “but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694.
Type of methamphetamine isomer At the time of petitioner’s sentence, the sentencin g guidelines treated manufacture of l-methamphetamine much less severelythan manufacture of d-methamphetamine. See, e.g., United States v. Dudden , 65 F.3d 1461, 1470 (9th Cir. 1995). We therefore first consider petit ioner’s claim that his attorney should have objected to his sentence calculation ba sed on “d” rather than “l” methamphetamine and that petitioner should have bee n afforded an evidentiary hearing in his § 2255 proceeding in district court in order to establish which type of isomer he had produced. In order to obtain a co nviction, the government need only prove that the substance involved was methamphetamine. United States v.2 The distinction between the two methamphetamine iso mers for

sentencing purposes was eliminated in a sentencing guideline amendment effective November 1, 1995. Now all methamphetamin e is treated as “d” methamphetamine. United States v. Svacina , 137 F.3d 1179, 1186 (10th Cir. 1998). -4- Deninno , 29 F.3d 572, 579-80 (10th Cir. 1994). At the tim e of petitioner’s sentencing, the need to distinguish between “d” and “l” methamphetamine applied only at the sentencing phase where the government w as required to prove the type of methamphetamine only by a preponderance of the evidence. Id. at 580. 2
Circumstantial evidence is sufficient to meet this burden. United States v. Glover , 97 F.3d 1345, 1350 n.5 (10th Cir. 1996). Here, there was considerable circumstantial evidenc e regarding the type of isomer produced by petitioner. Petitioner had purc hased 37,000 grams of the precursor chemical l-ephedrine from a supplier in C olorado some months before his arrest. When law enforcement officials raided his lab, they confiscated l-ephedrine and other chemicals used in the manufac ture. While there was no direct evidence that petitioner had produced d-meth amphetamine, there was testimony from a DEA chemist that petitioner used t he manufacturing method involving the reduction of ephedrine with hydriodic acid and red phosphorus. R. Supp. Vol. V at 110. When this method is used w ith l-ephedrine, d-methamphetamine is produced. United States v. Decker , 55 F.3d 1509, 1512 (10th Cir. 1995) (relying on testimony that the l-e phedrine method produces3 L-methamphetamine would not have produced such a re action because it is

nearly inert and produces only “minor physiological effects.” United States v. Decker , 55 F.3d 1509, 1510 (10th Cir. 1995). -5- d-methamphetamine). There is no evidence that peti tioner possessed anything other than l-ephedrine. Further, a user of his pro duct testified that the drug gave her high levels of energy and kept her awake. 3 We find this evidence to be more than sufficient to establish that petitioner produc ed d-methamphetamine thus rendering any evidentiary hearing in the district court unnecessary, see United
States v. Marr , 856 F.2d 1471, 1472 (10th Cir. 1988) (observing that no evidentiary hearing is required “where the districtcourt finds the case record conclusively shows the prisoner is entitled to no r elief”). Any effort by petitioner’s counsel to require the government to a dduce more proof regarding the type of isomer manufactured by petitioner would not have changed the outcome of petitioner’s case. He has therefore notsuffered the prejudice necessary to sustain a claim of ineffective assistance of counsel. See Strickland , 466 U.S. at 687.
Amounts of l-ephedrine attributable to petitioner Petitioner next argues that two distinct amounts of l-ephedrine, seized by authorities at different times, should not have bee n included in the overall amount of l-ephedrine he possessed for sentencing purposes and that counsel was-6-

ineffective for not seeing that these amounts were excluded from the calculations. We find no merit in this argument. The original presentence report (PSR) included the 37,000 grams petitioner had purchased in Colorado as well as the other two discrete amounts to arrive at a total of slightly more than 48,000 grams. PSR at5. Defendant, presumably through his attorney, objected to this amount, argu ing that the two separate seizures were part of the original 37,000 grams fro m Colorado. The PSR was revised to reflect possession of only 37,000 grams. The testimony of the DEA chemist that petitioner could produce 29 kilograms of methamphetamine was based on 37,000 grams of l-ephedrine. R. Supp. Vol . V at 128. Petitioner was sentenced based on the manufacture of 29 kilograms. We fail to see the point of petitioner’s sentencing argument. Because these tw o amounts were not included in the calculus of petitioner’s sentence, there is no double jeopardy issue nor any issue based on relevant conduct. Petitioner’s contention that the two amounts shouldbe subtracted from the 37,000 grams finds no support in the record. In fa ct, subtracting those amounts from the 37,000 grams would result in their being e xcluded twice for sentencing purposes. Most importantly, this court on direct appeal found no error in the district court’s reliance on the 37,000 gram/29 kil ogram amounts in arriving at petitioner’s sentence. Andersen , 940 F.2d at 597. Although cloaked in the-7-

guise of an ineffective assistance claim, this is t he same issue decided on direct appeal and cannot be raised again in a § 2255 motion. United States v. Cox , 83 F.3d 336, 342 (10th Cir.1996).

Conversion ratio At petitioner’s trial, the DEA chemist implied thatan 80 percent conversion ratio was appropriate to determine how much methamp hetamine could be manufactured from 37,000 grams of l-ephedrine. In his § 2255 proceeding, petitioner offered a letter from Howard McClain, Jr ., the chief of the Drug Control Section of the DEA, dated some six weeks af ter petitioner was sentenced, indicating that a conversion ratio of 62.5 percent would be appropriate. Petitioner argues that his counsel was ineffective for failing to produce this type of evidence at his sentencing. In response to this argument, the district court or dered additional briefing from the government “as to how the calculation of p etitioner’s sentence would be affected if ONLY the lower conversion rate noted in the letter of Howard McClain, Jr., of the DEA were applied instead of th e 80% rate actually applied[.]” R. Vol. I doc. 24. In its response, the governmen t stated: “[T]he only conversion rate that should be used in this case, a ssuming Mr. McClain’s observations regarding conversion ought to be appli ed retroactively in petitioner’s case, a position the Magistrate rejected, but the g overnment, in fairness, does not-8-

contest, is what McClain referred to as the ‘average actual yield.’” Id. doc. 25 at 2. The “average actual yield” referred to in th e McClain letter is 62.5 percent. Applying the 1989 guidelines, the government conclu ded that petitioner’s sentence would remain the same irrespective of whic h conversion ratio was used. The district court, therefore, rejected the content ion that petitioner’s counsel had been ineffective based on his failure to present ev idence regarding an alternate conversion ratio. In its brief to the district cou rt, however, the government analyzed the issue using the incorrect guidelines. Generally, a sentencing court must apply the guidel ines in effect at the time of the sentencing unless doing so would create ex post facto problems. United States v. Sullivan, No. 00-8012, 2001 WL 777000, at * 2 (10th Cir. Jul y 11, 2001) ( to be published at 255 F.3d 1256). The 1989 guidelines became effect ive on November 1, 1989, before petitioner’s sentencing but after petitioner’s criminal conduct had occurred. Under the 1988 guid elines, one gram of methamphetamine equaled two grams of cocaine for se ntencing purposes. U.S. Sentencing Guidelines Manual, Drug Equivalency Tables at 2.42 (1988). The 1989 guidelines raised that ratio, equating one gram of methamphetamine with five grams of cocaine. U.S. Sentencing Guidelines Manual, Drug Equivalency Tables at 2.48 (1989). Thus, sentencing petitioner underthe 1989 guidelines for conduct which occurred before those guidelines became effective4 We are unsure whether the sentencing court used the 1988 guidelines or the

1989 version because the transcript of the sentenci ng proceeding is not included in the record on appeal. We agree with the surmise of the magistrate judge, however, that because of the potential ex post fact o problem, the sentencing court most likely relied on the 1988 guidelines. R. Vol. I, doc. 18 n.3. -9- would subject him to harsher punishment than he wou ld have received at the time the offenses had been committed. This is a classic ex post facto problem. See Sullivan , 2001 WL 777000, at *2. Petitioner, therefore, sh ould have been, and probably was, sentenced under the 1988 guidelines. 4 Had the government relied on the correct version of the guidelines in its brief to the district court analyzing the effect of the 62.5 percent conversion ratio, it could not have concluded that the sentences would be the same unde r either ratio. Under the 1988 guidelines, petitioner would have received a l esser sentence had the 62.5 percent conversion ratio been used. That aside, we have found no law dealing with the p roper conversion ratio in methamphetamine cases available to counsel at th e time of petitioner’s sentencing. In view of the concession by the government, however, that 62.5 percent was a fair ratio and should be applied , we remand for an evidentiary hearing to determine whether this data or any conve rsion rate information less than the 80 percent adduced at trial was reasonablyavailable to petitioner’s attorney at the time of the trial or sentencing suc h that his failure to acquire such information would constitute ineffective assistance of counsel.-10-

Guideline Application Petitioner argues that he was sentenced under the w rong edition of the sentencing guidelines. As noted above, we suspect that was not the case. It may not matter, however, because if petitioner was resp onsible for 37,000 grams of l-ephedrine and 29 kilograms of methamphetamine based on an 80 percent conversion ratio, petitioner’s sentence is the same under either version of the guidelines. It is only when one accepts petiti oner’s arguments that the l-ephedrine amount should be less than 37,000 grams and/or, as discussed above, that the conversion ratio should be less than 80 pe rcent that different sentences can result. We have rejected the argument that the l-ephedrine should be less than 37,000 grams. However, we are remanding this case to determine whether counsel was ineffective in failing to present evide nce of a conversion rate of less than 80 percent. If, after an evidentiary hearing, the district court concludes that petitioner’s counsel was ineffective for failing to present reasonably available evidence of a lower conversion rate, the district c ourt should then determine the proper conversion rate and resentence petitioner un der the 1988 guidelines.5 Apprendi v. New Jersey , 530 U.S. 466 (2000); Jones v. United States ,

526 U.S. 227 (1999); Castillo v. United States , 530 U.S. 120 (2000). -11- Denial of Leave to Amend As mentioned above, in conjunction with his objecti ons to the report and recommendation of the magistrate judge, petitioner also requested leave to amend his complaint to add a claim based on the Apprendi/Jones/Castillo 5line of cases. The district court, without comment, denied leave t o amend. “[T]he decision to grant leave to amend a complaint , after the permissive period, is within the trial court’s discretion, Fed . R. Civ. P. 15(a), and will not be disturbed absent an abuse of that discretion.” Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (quotation omitted). Generally, a court must explain why permission to amend has been denied. Id. However, “failure to state a reason can be harmless error where the reason is apparent.” Id. (quotation omitted). Leave to amend should be freely given in the absenc e of a good reason not to allow amendment. Foman v. Davis , 371 U.S. 178, 182 (1962). One good reason not to allow amendment is when the amendment will be futile. Id. That is the situation facing petitioner. Since petitioner’s request for leave to amend and, indeed, since the filing of the appellate briefs, this court has made it clear that petitioner could not prevail6 Contrary to petitioner’s suggestion, this case differs from United States v.

Gorecki , No. 95-4129, 1996 WL 211740 (10th Cir. Apr. 30, 1 996), where the defendant was entitled to leave to amend as a matte r of right. -12- on the substance of the Apprendi argument he wished to include in his § 2255 petition. Subparagraph (b)(1)(C) of 28 U.S.C. § 84 1 states that “[i]n the case of a controlled substance in schedule I or II, . . . such person shall be sentenced to a term of imprisonment of not more than 20 years.” Methamphetamine is a schedule II controlled substance. United States v. Killion , 7 F.3d 927, 935 (10th Cir. 1993). Because petitioner was sentencedto 220 months’ imprisonment, his sentence is less than the twenty-year statutorymaximum for the offenses of which he was convicted. Under our recent holdings in United States v. Thompson , 237 F.3d 1258, 1262 (10th Cir.), cert. denied, 121 S. Ct. 1637 (2001) and United States v. Heckard , 238 F.3d 1222, 1235-36 (10th Cir. 2001), petitioner’s case does not present an Apprendi violation. Amendment of the petition, therefore, would have been futile, and itwas not an abuse of discretion to deny leave to amend. Because the reason for den ial is apparent, the district court’s failure to explain its denial was harmless error. 6-13-

The judgment of the United States District Court fo r the District of Utah is AFFIRMED in part, and REVERSED in part, and REMANDED for further proceedings consistent with this order and judgment

.

Entered for the Court

Wade Brorby Senior Circuit Judge