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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 90-4467
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant
versus
JAMES EDWIN SHERROD,
Defendant-Appellant
Cross-Appellee,
and
STEVEN LEE SHERROD, a/k/a William Wayne
Embry and LONNIE JERRELL COOPER,
Defendants-Appellants,
JERRY WAYNE SEWELL, II and
JERRY WAYNE SEWELL, SR.,
Defendants-Appellants
Cross-Appellees.
______________________________________________
Appeals from the United States District Court for the
Eastern District of Texas
______________________________________________
(June 23, 1992)
Before GARWOOD and DEMOSS, Circuit Judges, and LITTLE,* District
Judge.
*
United States District Judge, Western District of Louisiana,
sitting by designation.

GARWOOD, Circuit Judge:
A jury convicted the five defendants-appellants now before
this Court of three counts involving, inter alia, conspiracy to
manufacture
and
the
manufacture
of
phenylacetone
and
methamphetamine. We affirm the convictions and sentences of all
five defendants.
Proceedings Below
Defendants Jerry Wayne Sewell, Sr. (Sewell, Sr.), Jerry Wayne
Sewell II (Sewell II), Lonnie Jarrell Cooper (Cooper), James
Sherrod, and Steven Sherrod were charged in a May 1989 superseding
indictment.1 Also charged in this indictment were co-defendants
Jack Rhodes (Rhodes), Dan Hill (Hill), Lisa Ervin (Ervin), and
Darlene Roznovsky (Roznovsky).2 The indictment contained three
counts: (1) conspiracy to (a) manufacture phenylacetone (P2P),
amphetamine, and methamphetamine, (b) possess amphetamine and
methamphetamine with the intent to distribute, and (c) distribute
amphetamine and methamphetamine; (2) manufacturing P2P; and (3)
manufacturing a mixture containing methamphetamine. The conspiracy
charge and the charge of manufacturing the methamphetamine mixture
alleged enhanced penalty provisions for violations of 21 U.S.C. 壯
1
The original indictment, filed in March 1989, charged these
defendants with two counts, neither of which contained an
enhanced penalty provision: (1) conspiracy to manufacture P2P,
amphetamine, and methamphetamine; and (2) manufacturing P2P.
2
These four co-defendants entered into plea arrangements with
the Government. Each testified at trial for the Government,
except Hill, who testified for the defense. None of these four
are parties to the present appeal.
2

846 and 841(a)(1) involving a kilogram or more of a mixture or
substance containing a detectable amount of methamphetamine.
Following a jury trial in October and November 1989,
defendants were convicted and sentenced on all three counts. They
appeal their convictions and sentences on constitutional and
evidentiary grounds. The Government cross-appeals the sentences of
James Sherrod, Sewell, Sr., and Sewell II, alleging noncompliance
with the sentencing guidelines and statutory minimum sentence
provisions.
Factual Background
In early 1989, law enforcement officials from the Sheriff's
Department of Calcasieu Parish, Louisiana, began working with a
confidential informant, Danny Johnson (Johnson),3 to identify and
apprehend individuals involved in drug trafficking in the area.
Among the names given to the authorities by Johnson was that of
defendant Sewell, Sr.,4 from whom Johnson had previously obtained
methamphetamine. One of the primary goals of Johnson's cooperation
with the Calcasieu Parish Sheriff's Department was to locate the
laboratory source of Sewell, Sr.'s methamphetamine.
When Johnson first began work as an informant, the law
enforcement officials' focus was on Sewell, Sr.'s connections with
a source of methamphetamine in San Antonio, Texas, known as "Fred."
3
Johnson had agreed to act as a government informant in
return for special treatment respecting drug charges pending
against him.
4
Johnson also named Ervin, Roznovsky, and Cooper as
associates of Sewell, Sr. who were involved in drug dealing.
3

Because of financial problems with Fred, however, Sewell, Sr. began
making arrangements to manufacture amphetamine and methamphetamine
independently.
Preparations were begun for making the drugs: several
conversations concerning the conspiracy were held in Cooper's auto
mechanic shop in Mossville, Louisiana; Rhodes, an associate of
Sewell, Sr. from Oklahoma, located a chemist, or "cook";5 Cooper
compiled a list of the chemicals and equipment necessary for the
laboratory process; Sewell II and Roznovsky collected equipment and
chemicals stored on Sewell, Sr.'s property; Sewell II, Steven
Sherrod, and Rhodes helped load the items into Rhodes' car, a 1977
Cadillac, for transport to the laboratory site, which was in a
semi-rural area near Orange, Texas.
On March 8, 1989, Johnson, Rhodes, Steven Sherrod, and James
Sherrod drove to Dallas in the Cadillac. In Dallas, they met
Roznovsky who had gone there to purchase the remaining chemicals
and laboratory equipment. These items were placed in the trunk of
the Cadillac, along with the equipment and chemicals that had come
from Sewell, Sr. The four men then continued on to Lake Charles,
Louisiana, where Johnson had an apartment.
Law enforcement officials, in close contact with Johnson, kept
the Cadillac under surveillance and contacted the Texas Department
of Public Safety (DPS) to arrange a stop of the vehicle in order to
5
Defendant Steven Sherrod introduced his uncle, defendant
James Sherrod, to Rhodes at the beginning of March, 1989. James
Sherrod was a chemist in the Dallas area.
4

obtain the identity of its occupants.6 A DPS patrolman stopped the
car near Beaumont on the pretext that a tail light was
malfunctioning. He ascertained that the occupants were Johnson,
Rhodes, and James Sherrod; Steven Sherrod produced false
identification giving his name as William Wayne Embry. The DPS
officer, as requested by Louisiana law enforcement officers, did
not search the car.
Once the four men arrived in Lake Charles, Johnson contacted
Cooper to get directions to the laboratory. Cooper arranged to
lead them to the laboratory the next morning. The next day, the
group met Cooper at a local truck stop and followed him to an auto
mechanic shop near Orange, Texas, owned by Hill. The group
unloaded the items from the trunk and carried them to the
laboratory, which was set up in an old school bus located behind
Hill's trailer. The group discovered that one of the laboratory
flasks was the wrong size. Sewell, Sr., who had remained in Bells,
Texas, sent Roznovsky to Orange with the proper equipment.
James Sherrod began working in the laboratory on March 9.
Hill was also there working on a batch of methamphetamine that he
had started before the others arrived. Steven Sherrod and Rhodes
stayed in Johnson's apartment in Lake Charles. Johnson made
several trips to the laboratory to check on things, reporting by
telephone to Sewell, Sr. and Cooper and keeping the law enforcement
officials apprised of the situation.
6
Johnson had identified James Sherrod and Steven Sherrod to
the authorities only as the "cook" and the "bodyguard,"
respectively.
5

The Calcasieu Parish Sheriff's Department, joined by agents
from the Drug Enforcement Agency (DEA) and officers from the Orange
County police and sheriff departments, maintained a constant
surveillance of the Hill property. Early in the morning of March
11, DEA agents obtained a warrant to search the Hill property. The
officers planned to wait to execute the warrant until Sewell, Sr.
arrived at the laboratory to inspect the finished product. During
the afternoon of March 11, however, officers near the laboratory
observed Rhodes and Steven Sherrod arrive in the Cadillac, open the
trunk of the vehicle, and drive away a few minutes later. Fearing
that the defendants were dismantling the laboratory to move it or
that Rhodes and Steven Sherrod were removing evidence, officers
stopped the Cadillac after it had crossed the state line into
Louisiana. Shortly thereafter, the agents executed the search
warrant at the laboratory site.
In the school bus, the agents found chemical mixtures in a
cake pan, a Coca-Cola syrup canister, and a Mason jar. The agents
took samples from each of these containers; tests of these samples
revealed methamphetamine.7 Precursor chemicals were also found in
the bus.8

At the same time they obtained the search warrant, the agents
also obtained from the magistrate issuing the warrant an order
7
The methamphetamine mixtures found were in the process of
formation.
8
The DEA agents found 4,750 grams of P2P, a precursor
chemical necessary for the manufacture of amphetamine and
methamphetamine.
6

permitting them to destroy the chemical mixtures (except for
retained samples), provided that photographs were taken of the
mixtures and their containers before the destruction.9 The order
did not contain any provision allowing for the destruction of the
containers themselves. Nevertheless, the agents at the scene
decided to destroy the containers as well because they were
contaminated by the hazardous chemical mixtures.10 Samples of the
mixtures from at least two of the containers were retained, and
later tested.
Defendants were arrested and indicted on conspiracy and
manufacturing charges.
Discussion
I.
Cross Appeal.
The Government cross-appeals the sentences of Sewell, Sr. and
Sewell II, contending that the district court erred in applying the
statutory minimum penalty provisions of 21 U.S.C. � 841(b)(1)(B)
instead of those of section 841(b)(1)(A).11
9
Agents participating in the search took still photographs
and made a video of the laboratory scene.
10
Destruction of the containers was proper according to DEA
policy and Environmental Protection Agency guidelines.
11
Only the sentences of the Sewells will be considered in the
determination of this issue; the sentences of the other
defendants fall within the scope of either subsection.
We note that although many other sections of the 1988 Anti-
Drug Abuse Amendments Act did not become effective until March
18, 1989 (120 days after enactment on November 18, 1988),
Subtitle N of P.L. 100-690, which added sections
841(b)(1)(A)(viii) and 841(b)(1)(B)(viii), does not contain a
provision for delayed effectiveness. A statute that does not
provide otherwise becomes effective upon enactment. United
States v. Robles-Pantoja, 887 F.2d 1250, 1257 (5th Cir. 1989).
7

The version of 21 U.S.C. � 841 that was in effect at the time
of the offenses set forth two different penalties for identical
violations of section 841(a)12 involving one hundred grams or more
of a mixture or substance containing a detectable amount of
methamphetamine.13 Under section 841(b)(1)(A), the penalty for a
first-time offender was a term of imprisonment which could not be
less than ten years or more than life; for a defendant with two or
more final convictions for a felony drug offense, the penalty was
"a mandatory term of life imprisonment without release." Section
841(b)(1)(B) provided a penalty for the same violation of a term of
imprisonment which could not be less than five years and not more
than forty years; if the defendant had a prior final conviction for
a drug-related felony, the sentence was for a term of imprisonment
not less than ten years and not more than life.
Sewell, Sr. and Sewell II were convicted of manufacturing 17.5
kilograms of a mixture containing a detectable amount of
methamphetamine and were sentenced under section 841(b)(1)(B).
Sewell II received the statutory minimum sentence of five years'
imprisonment on each count, running concurrently. Sewell, Sr. had
Because there is no provision to the contrary, the amendments
under which the defendants were sentenced became effective in
November 1988, prior to the conduct for which the defendants were
convicted.
12
21 U.S.C. � 841(a)(1) makes unlawful the knowing or
intentional manufacture of a controlled substance.
13
This overlap of penalties was due to a technical error in
the 1988 Anti-Drug Abuse Amendments Act, which was corrected by
amendment in 1990. Section 841(b)(1)(A) now applies to
violations involving one kilogram or more of a substance
containing a detectable amount of methamphetamine.
8

three prior convictions for drug-related felonies and therefore was
subject to the more serious penalty. He received concurrent
sentences of 360 months on all counts.
The Government contends that the Sewells should have been
sentenced under section 841(b)(1)(A). Under this provision, Sewell
II would have received a minimum sentence of ten years and Sewell,
Sr. would have received a mandatory life sentence.
Although we would tend to agree with the Government under the
current version of the statute, we are unable to do so under the
version in effect at the time of the offense. United States v.
Kinder, 946 F.2d 362, 367-68 (5th Cir. 1991) (remanding for
resentencing under section 841(b)(1)(B) because the district court
violated the rule of lenity). Following Kinder, we hold that the
district court did not err in sentencing the Sewells under section
841(b)(1)(B).
II.
Sentences of Lonnie Cooper and James Sherrod.
The Government also cross-appeals the sentence of James
Sherrod, arguing that the district court should have increased his
Guidelines range three levels for supervisor/manager status based
upon his role as the chemist. See U.S.S.G. � 3B1.1(b).14 Cooper
raises the opposite claim, contending that the district court erred
in finding him to be a supervisor/manager and in raising his
14
In determining whether a defendant played a
supervisor/manager role in an offense, a court should consider
such factors as the exercise of decision-making authority, the
degree of participation in planning or organizing the offense,
and the degree of control and authority exercised over others.
U.S.S.G. � 3B1.1, Application Note 3.
9

Guidelines level by the required three levels. Cooper contends not
only that he was not a manager or supervisor but that he was
entitled to a reduction of two to four levels because of his
minimal or minor role in the group. See U.S.S.G. � 3B1.2.15
This Court will uphold the district court's Guidelines
sentence if it results from a legally correct application of the
Guidelines to factual findings that are not clearly erroneous.
United States v. Ponce, 917 F.2d 841, 842 (5th Cir. 1990), cert.
denied, 111 S.Ct. 1398 (1991); United States v. Manthei, 913 F.2d
1130, 1133 (5th Cir. 1990); United States v. Suarez, 911 F.2d 1016,
1018 (5th Cir. 1990). A finding of fact is not clearly erroneous
if it is plausible in light of the record viewed in its entirety.
Anderson v. Bessemer City, 470 U.S. 564, 573-76 (1985). We review
legal conclusions concerning the Guidelines de novo. Manthei, 913
F.2d at 1133.
After reviewing the record, we conclude that the factual
findings made by the district court in this respect were not
clearly erroneous. Although James Sherrod, as the chemist, was
undoubtedly a necessary member of the conspiracy, the record
supports the district court's finding that he did not manage any
part of the conspiracy. Likewise, although Cooper claims that he
15
Application Note 1 to section 3B1.2(a) defines a minimal
participant as one who is "plainly among the least culpable of
those involved in the conduct of a group," as indicated by "the
defendant's lack of knowledge or understanding of the scope and
structure of the enterprise and of the activities of others."
A minor participant is one who is "less culpable than most
other participants, but whose role could not be described as
minimal." Section 3B1.2, Application Note 3.
10

played a minimal or minor role in the conspiracy, the district
court's finding that Cooper coordinated the set up of the
laboratory is based on ample evidence in the record, and adequately
supports the determination that he was neither a minimal nor a
minor participant.16
Finding no error, we affirm the sentences of James Sherrod and
Lonnie Cooper.
III. Issues Related to the Finding that the Conspiracy Involved
17.5 Kilograms.
The defendants raise three issues related to the district
court's finding that the conspiracy involved 17.5 kilograms of the
methamphetamine mixture. First, they contend that their rights to
due process and confrontation were violated because the mixtures
(other than retained samples) and containers were destroyed before
anyone made an accurate measurement of the amount of the mixture.
Second, they claim that the district court erred in finding that
the laboratory contained 17.5 kilograms of the mixture. Finally,
they argue that the district court should not have sentenced them
on the basis of the entire 17.5 kilograms because the mixture
contained only a little pure methamphetamine. We reject each of
these contentions.
A.
Destruction of physical evidence
16
For example, there is evidence that Cooper compiled a list
of chemicals and equipment needed at the laboratory, that Cooper
called Hill several days before the activity at the laboratory to
inform Hill that some people were coming to use the lab, and that
Sewell, Sr. instructed Johnson and Roznovsky to keep Cooper
informed of the status of the activity at the lab.
11

Each defendant claims he was denied his constitutional rights
to due process and confrontation because the Government destroyed
the chemical mixtures (other than retained samples) and containers
without accurately measuring the mixtures or allowing the
defendants the opportunity to measure them.17
This issue has been addressed by a prior panel of this Court
in an opinion deciding the appeal of co-defendant Jack Rhodes. See
United States v. Rhodes, No. 90-4538 (5th Cir. September 27, 1991)
(unpublished opinion). It is a general rule in this Circuit that
one panel may not overrule the decision of a prior panel in the
absence of an intervening contrary or superseding decision by the
court en banc or the Supreme Court. See, e.g., Pruitt v. Levi
Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991). Thus we are
bound to follow the decision in Rhodes on issues previously
decided.
This Court in Rhodes held that the destruction of the
methamphetamine and containers did not deprive co-defendant Rhodes
of his rights to due process or confrontation. "The process due a
defendant who believes that the sentencing information is incorrect
17
We note that proof of the quantity of drugs involved does
not go to guilt or innocence of the section 846 and section
841(a) violations charged, but rather only to the sentence. See
Barnes v. United States, 586 F.2d 1052, 1056 (5th Cir. 1978).
Here, the indictment alleged that the quantity involved was more
than one kilogram of a mixture containing methamphetamine. Cf.
United States v. Alvarez, 735 F.2d 461, 468 (11th Cir. 1984).
There was no real dispute that the mixture involved did contain
methamphetamine (the retained samples and the test results were
made available to defendants) and that the quantity of the
mixture was more than one kilogram; the dispute was whether it
was only four or five kilograms or more than seventeen.
12

is the opportunity to show that the information is materially
untrue." Rhodes, at p. 4 (citing United States v. Rodriguez, 897
F.2d 1324, 1328 (5th Cir.), cert. denied, 111 S. Ct. 158 (1990)).
The defendants were aware long prior to their sentencings that
the Government would request sentencing based upon the
methamphetamine mixture being in the amount of 17.5 kilograms. The
evidence produced by the Government at the trial in October and
November 1989 was that the laboratory contained 17.5 kilograms of
the methamphetamine mixture. In addition, the presentence reports
for each defendant calculated the Guidelines sentencing level using
the 17.5 kilogram figure.
The defendants were afforded ample opportunity to attempt to
show that the Government's evidence was incorrect. James Sherrod
and Hill testified about the quantity of drugs at James Sherrod's
sentencing hearing, and James Sherrod testified on this issue again
at Sewell, Sr.'s sentencing hearing. Counsel for all defendants
were present at both hearings and were given an opportunity to
question the witnesses. That the district court obviously found
the Government's evidence more credible does not prove a due
process violation.
The defendants also were not deprived of their right to
confrontation. This right is substantially limited at a sentencing
hearing; the district court may even base its findings on out-of-
court statements. Rhodes, at p. 5; Rodriguez, 897 F.2d at 1328.
Although the defendants did not choose to make use of the
opportunity, they could have called the DEA chemist, George Lester,
13

to the stand at the sentencings to testify regarding the
calculations of the volumes of the canister and the pan.
We hold that the destruction of the methamphetamine mixtures
(other than the retained samples) and their containers did not
deprive the defendants of their constitutional rights.18
B.
Factual findings of the amount of methamphetamine
mixture
The defendants contend that the district court erred in
finding that the amount of the methamphetamine mixture found in the
laboratory was 17.5 kilograms.
This Court will uphold a district court's findings about the
quantity of drugs involved unless they are clearly erroneous.
United States v. Ponce, 917 F.2d 841, 842 (5th Cir. 1990). A
clearly erroneous finding is one that is not plausible in the light
18
For due process considerations, see California v. Trombetta,
104 S.Ct. 2528, 2529 (1984) (defendant's due process rights
violated only if the evidence destroyed (1) possessed an
exculpatory value that was apparent before it was destroyed and
(2) was of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means);
United States v. Binker, 795 F.2d 1218, 1230 (5th Cir. 1986)
(applying Trombetta in the context of destruction of marijuana),
cert. denied, 107 S.Ct. 1287 (1987); United States v. Webster,
750 F.2d 307 (5th Cir. 1984) (same), cert. denied, 105 S.Ct. 2340
(1985).
On the issue of the right to confrontation, see United
States v. Herndon, 536 F.2d 1027, 1029 (5th Cir. 1976)
(destruction of a sample of "moonshine" liquor did not deprive a
defendant of his Sixth Amendment right to confront witnesses as
the Confrontation Clause is restricted to "witnesses" and does
not include physical evidence; production of the sample or
laboratory notes was not necessary to fully "confront" the
government's expert); United States v. Gordon, 580 F.2d 827, 837
(5th Cir.) (following Herndon), cert. denied, 99 S.Ct. 731
(1978).
14

of the record viewed in its entirety. Anderson v. Bessemer City,
105 S.Ct. 1504 (1985).
In determining drug quantities, the district court may
consider any evidence which has "sufficient indicia of
reliability." U.S.S.G. � 6A1.3, comment; United States v. Manthei,
913 F.2d 1130, 1138 (5th Cir. 1990). This evidence may include
estimates of the quantity of drugs for sentencing purposes. United
States v. Coleman, 947 F.2d 1424, 1428 (10th Cir. 1991), cert.
denied, 112 S.Ct. 1590 (1992). The district court's factual
findings of the amount of drugs involved must be supported by what
it could fairly determine to be a preponderance of the evidence.
United States v. Thomas, 932 F.2d 1085, 1091 (5th Cir. 1991), cert
denied, 112 S.Ct. 887 (1992).
All of the Government records created at the time of the
arrest and search of the laboratory were based on the DEA agents'
estimates that the amounts of the mixtures in the cake pan, Coke
canister, and Mason jar totalled 4.5 kilograms. These estimates
were not based on any accurate measurements made at the scene, but
were conservative guesses of the amounts of the mixtures. The
Government's trial evidence, however, was that the laboratory
contained 17.5 kilograms of the methamphetamine mixture. This
evidence consisted of the testimony of DEA Special Agent Shoquist
and George Lester, a chemist for the DEA.19 Before the trial began,
Shoquist obtained and measured the capacity of a standard Coke
19
Both Shoquist and Lester were present at the time of the
search of the laboratory; Lester made the early estimates of 4.5
kilograms.
15

canister of the kind that had been destroyed. Also, he reworked
his estimate of the volume of the cake pan based on measurements of
the pan made at the time of the search. Based upon these
calculations of the volumes of the cake pan and canister, Lester
testified that the methamphetamine mixture found in the laboratory
totalled 17.5 kilograms.
Defendants have not overcome their difficult burden of showing
that the district court's reliance on the 17.5 kilogram figure was
clearly erroneous. Here, the sworn testimony of the two Government
agents is a sufficient "indicia of reliability" to support the
district court's findings. The district court, after hearing the
testimony and viewing all the evidence, found the 17.5 kilogram
estimate to be credible. The mere existence of a discrepancy
between the original estimate and the evidence introduced at trial
does not render the district court's use of the 17.5 kilogram
16

amount clearly erroneous.20 See United States v. Rhodes, at pp.
3-4.
We hold that the district court did not err in sentencing the
defendants based upon the calculation that 17.5 kilograms of drugs
were involved.
C.
Purity of the methamphetamine mixture
The defendants contend that use of the 17.5 kilogram figure
for sentencing constitutes error because the mixture was not pure
methamphetamine, and that the district court should have considered
only the amount of methamphetamine that could have been produced.
20
We note in passing that, although the defendants rely
vociferously on the apparent discrepancy between the original
estimate of 4.5 kilograms and the final calculation of 17.5
kilograms, the effect of the Drug Equivalency Table of the
Sentencing Guidelines (as in effect when the offenses were
committed; those in effect at sentencing provided a higher base
offense level for the same quantity) weakens this reliance.
Because both P2P and methamphetamine were found in the
laboratory, the defendants' sentences were calculated by use of
the Drug Equivalency Table. The P2P and the methamphetamine were
converted into "equivalent" amounts of cocaine, and the total
amount of cocaine was used to determine the offense level. If
the 4.5 kilogram figure were used, with the 4,750 grams of P2P,
the resulting equivalent of 12.95 kilograms of cocaine would
establish an offense level of 32. Using the 17.5 kilogram amount
of methamphetamine, again with the 4,750 grams of P2P, the total
amount of cocaine is 38.95 kilograms, resulting in an offense
level of 34.
The breaking point between levels 32 and 34 is between 14.9
and 15.0 kilograms of cocaine. The 4.5 kilogram figure, which
the evidence revealed was clearly a conservative estimate, when
converted with the P2P, produces a total amount of cocaine that
is only two kilograms (of cocaine) away from the breaking point.
Thus, although the defendants point out repeatedly that the 17.5
kilograms is almost four times greater than 4.5 kilograms, the
same sentencing increase would have resulted if the Government's
final calculations had been of 5.5 kilograms of the
methamphetamine mixture, merely one kilogram (of methamphetamine
mixture) more than the original "conservative" estimate.
17

This Circuit has held that consideration of the total weight
of a substance containing a detectable amount of methamphetamine is
proper in determining the defendant's sentence. See United States
v. Walker, No. 91-8396, slip op. at 4301-4302 (5th Cir. April 24,
1992); United States v. Mueller, 902 F.2d 336, 345 (5th Cir. 1990);
United States v. Butler, 895 F.2d 1016, 1018 (5th Cir. 1989), cert.
denied, 111 S.Ct. 82 (1990); United States v. Baker, 883 F.2d 13,
15 (5th Cir.), cert. denied, 110 S.Ct. 517 (1989).
The defendants argue, however, that a recent Supreme Court
decision has in effect overruled these cases. See Chapman v.
United States, 111 S.Ct. 1919 (1991). In Chapman, the Court held
that the weight of blotter paper on which LSD was customarily
distributed was a "`mixture or substance containing a detectable
amount' of LSD," and so was properly considered in determining the
proper sentence under the guidelines. Id. at 1925. The Court made
clear that Congress intended the carrier medium to be included in
the entire weight of the mixture to determine the proper sentence.
Id. at 1924. In making this analysis, the Court noted that
"Congress adopted a `market-oriented' approach to punishing drug
trafficking, under which the total quantity of what is distributed,
rather than the amount of pure drug involved, is used to determine
the length of the sentence." Id. at 1925.
Both the Sixth and Tenth Circuits have addressed this issue in
the context of methamphetamine since Chapman. See United States v.
Jennings, 945 F.2d 129 (6th Cir. 1991); United States v. Fowner,
947 F.2d 954 (10th Cir. 1991) (unpublished opinion), cert. denied,
18

60 U.S.L.W. 3778 (May 18, 1992). In Jennings, the Sixth Circuit
refused to sentence the defendants on the basis of the total weight
of a mixture that contained a small amount of methamphetamine and
a large percentage of poisonous by-products. 945 F.2d at 136. The
court pointed out that methamphetamine is not mixed with other
chemicals in order to dilute the methamphetamine and increase the
amount of saleable mixture; instead, the defendants "were
attempting to distill methamphetamine from the otherwise
uningestable byproducts of its manufacture." Id. at 137. The
court concluded that the district court on remand was limited to
sentencing the defendants for the amount of methamphetamine they
were capable of producing.
In our recent Walker decision, we expressly declined to follow
the Jennings approach.
The interpretation urged by the defendants and adopted by the
Sixth Circuit appears to be inconsistent with the statute, the
Sentencing Guidelines, and important passages in Chapman.
We note that both the statute and the Sentencing Guidelines
distinguish between "pure" methamphetamine and mixtures containing
methamphetamine. 21 U.S.C. 壯 841(b)(1)(A)(viii) and
841(b)(1)(B)(viii) each expressly set the same penalties based on
possession of a much smaller quantity of methamphetamine or
possession of a much larger quantity of a "mixture or substance
containing a detectable amount of methamphetamine." Similarly, the
footnote to the Drug Quantity Table following section 2D1.1
provides that
19

"[u]nless otherwise specified, the weight of a controlled
substance set forth in the table refers to the entire weight
of any mixture or substance containing a detectable amount of
the controlled substance. . . . In the case of a mixture or
substance containing PCP or methamphetamine, use the offense
level determined by the entire weight of the mixture or
substance or the offense level determined by the weight of the
pure PCP or methamphetamine, whichever is greater." U.S.S.G.
� 2D1.1, Drug Quantity Table (November 1990).
The Drug Table distinguishes between methamphetamine and "pure"
methamphetamine.21
The Chapman Court itself noted the statute's and the
Sentencing Guidelines' disparate treatment of methamphetamine vis-
a-vis other types of drugs:
"With respect to various drugs, including heroin,
cocaine, and LSD, it provides for mandatory minimum
sentences for crimes involving certain weights of a
`mixture or substance containing a detectable amount' of
the drugs. With respect to other drugs, however, namely
PCP or methamphetamine, it provides for a mandatory
minimum sentence based either on the weight of a mixture
or substance containing a detectable amount of the drug,
or on lower weights of pure PCP or methamphetamine. . .
. Thus, with respect to these two drugs, Congress clearly
distinguished between the pure drug and a `mixture or
substance containing a detectable amount of' the pure
drug. But with respect to drugs such as LSD, which
petitioners distributed, Congress declared that sentences
should be based exclusively on the weight of the `mixture
or substance.' Congress knew how to indicate that the
weight of the pure drug was to be used to determine the
sentence, and did not make that distinction with respect
to LSD." Chapman, 111 S.Ct. at 1924 (emphasis in
original).
21 The Sentencing Guidelines promulgated in November 1991,
although not applicable in this case, have changed the language
in the Drug Quantity Table. Instead of referring to
Methamphetamine and "Pure Methamphetamine," the Sentencing
Guidelines now use the language Methamphetamine and
Methamphetamine (actual). This change was probably intended to
forestall challenges raised by defendants that their
methamphetamine was not "pure" because it was not one hundred
percent methamphetamine.
20

After distinguishing between the statutory treatment of LSD
and methamphetamine, the Court went on to consider whether Congress
intended that the weight of LSD carriers be included for sentencing
purposes. It is in this context, after expressly distinguishing
the treatment of methamphetamine and PCP, that the Court
established its market-oriented analysis. Thus it does not appear
that the Chapman Court intended its market-oriented analysis to be
applied to methamphetamine or PCP, and indeed Jennings is the only
case that has applied the market-oriented analysis of Chapman to
methamphetamine.
In an unpublished opinion, the Tenth Circuit affirmed a
sentence that was based on twenty-four gallons of a liquid mixture
that contained detectable amounts of methamphetamine, but that the
defendant claimed was waste. Fowner, 947 F.2d 954 (Table case).
The court concluded, without citing Chapman or Jennings, that so
long as the mixture contained a detectable amount of
methamphetamine, the entire weight of the mixture should be
included in calculating the base offense level.22
22
The result reached in Fowner is also more consistent with
other circuit decisions involving mixtures of cocaine. See
United States v. Restrepo-Contreras, 942 F.2d 96 (1st Cir. 1991)
(finding that entire weight of cocaine and beeswax statute was to
be included for sentencing), cert. denied, 112 S.Ct. 955 (1992);
United States v. Mahecha-Onofre, 936 F.2d 623 (1st Cir.) (holding
that entire weight of suitcases composed of cocaine bonded
chemically with acrylic suitcase material was includable for
sentencing purposes), cert. denied, 112 S.Ct. 648 (1991); United
States v. Hood, No. 91-2216 (10th Cir. Feb. 5, 1992) (unpublished
disposition) (holding that liquid waste surrounding cocaine base
was properly included in determining weight of drug for
sentencing purposes). But see United States v. Elmer Acosta, No.
91-1527 (2d Cir. May 13, 1992) (concluding that weight of creme
liqueur in which cocaine was dissolved was improperly included in
21

We are not faced with a situation where a defendant discards
some independently acquired methamphetamine by throwing it into his
fishpond or stock tank. Instead, the defendants here were
convicted of manufacturing methamphetamine (and phenylacetone or
P2P), and conspiracy to do so, and the samples tested by the
Government of the mixtures found in the laboratory were in the
formative stages of the manufacturing process. These circumstances
provide strong support for consideration of the weight of the
entire mixture for sentencing purposes.
Following Walker, we hold that the district court did not err
in sentencing the defendants on the basis of the entire 17.5
kilograms of the methamphetamine mixture.
IV.
Delegation Issue.
Two of the defendants contend that the DEA lacked authority to
designate P2P as a Schedule II substance.23 We find no merit in
this argument.
These defendants assert that the DEA Administrator's order
designating P2P as a Schedule II substance is void because the
authority to make such a designation is the non-delegable
responsibility of the Attorney General. This argument is precluded
by the statute itself: 21 U.S.C. � 871 establishes the propriety
of the delegation at issue. Subsection (a) of section 871 provides
calculating offense level because liqueur was not ingestible);
United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir. 1991)
(holding that the term "mixture" in U.S.S.G. � 2D1.1 does not
include unusable mixtures of cocaine and liquid waste).
23
Sewell II and James Sherrod raise this issue.
22

that the Attorney General "may delegate any of his functions under
this subchapter to any officer or employee of the Department of
Justice."24 Section 871 has been in effect without amendment since
the original enactment of the Drug Abuse Prevention and Control Act
in 1970 and was thus in effect when the DEA Administrator placed
P2P on the Schedule II list of controlled substances.
The defendants ignore section 871 and instead rely on United
States v. Spain, 825 F.2d 1426 (10th Cir. 1987), to support their
contention. In Spain, the Tenth Circuit reversed a conviction for
possession of a substance which had been placed on Schedule I by
the DEA pursuant to 21 U.S.C. � 811(h), a provision added by the
1984 amendments. The court held that the 1973 delegation25 to the
DEA of the Attorney General's functions under the Drug Abuse
Prevention and Control Act of 1970, although previously upheld for
section 811(a), did not extend to section 811(h) because of the
substantive and procedural differences between section 811(h) and
section 811(a). Spain, 825 F.2d at 1429.
The designation provision in question here is section 811(e),
which grants the Attorney General the authority to add immediate
precursors of controlled substances to the list of those already
regulated. Although there are no cases deciding the validity of
delegation to the DEA under this provision, the Eleventh Circuit
upheld the original delegation of authority to the Attorney General
24
Sections 811 and 871 are both part of Subchapter I of
Chapter 13 of Title 21. The Administrator of the DEA is an
"officer or employee" of the Department of Justice.
25
See 28 C.F.R. � 0.100.
23

in United States v. Hope, 714 F.2d 1084 (11th Cir. 1983). The
court found the discretion created by section 811(e) to be
indistinguishable from that created by section 811(a). Hope, 714
F.2d at 1087. Even the Spain court has upheld the delegation to
the DEA of section 811(a) authority. Spain, 825 F.2d at 1427.
In addition, a recent Supreme Court decision disapproves of
Spain and holds that delegation to the DEA of authority under
section 811(h) is valid. Touby v. United States, 111 S. Ct. 1752,
1758 (1991).
In light of 21 U.S.C. � 871 and the decision of the Supreme
Court in Touby, defendants' reliance on Spain is misplaced. Their
argument that the DEA lacked authority to designate P2P as a
Schedule II substance fails.
V.
Rynal Issue.
The defendants argue that their convictions for manufacturing
methamphetamine violate the due process and equal protection
clauses because the manufacturer of Rynal, an over-the-counter
product containing methamphetamine, is not subject to the same
penalties.26
26
There is no authority to support defendants' position. The
defendants cite two cases that held that the removal of Rynal
from the schedules of controlled substances did not operate to
remove methamphetamine itself. See United States v. Roark, 924
F.2d 1426 (8th Cir. 1991); United States v. Housley, 751 F.Supp.
1446 (D. Nev. 1990), aff'd, 955 F.2d 622 (9th Cir. 1992).
Defendants seek to distinguish their claims on the basis that
this case concerns substances containing a detectable amount of
methamphetamine rather than "pure" methamphetamine. This
distinction is irrelevant in the context of the constitutional
claims raised by the defendants.
24

21 U.S.C. � 811(g)(1) allows the Attorney General to exclude
by regulation "any non-narcotic substance from a schedule if such
substance may, under the Federal Food, Drug, and Cosmetic Act, be
lawfully sold over the counter without a prescription." At the
time of the defendants' activity, the Attorney General had exempted
Rynal from the list of Schedule II substances pursuant to this
provision. 21 C.F.R. � 1308.22 (1989 Edition).27
Defendants claim that their due process rights have been
violated because the statutes create an ambiguity by subjecting
them to prosecution while exempting the manufacturer of Rynal. Two
unpublished opinions of the Ninth Circuit have rejected this
argument in similar contexts. See United States v. Farmer, No. 90-
16557 (9th Cir. March 9, 1992) (holding that 21 U.S.C. � 811 and 21
C.F.R. � 1308.22 provide fair notice); and United States v.
Worstell, No. 91-35208 (9th Cir. Dec. 16, 1991) (rejecting the
contention that the regulatory scheme is so ambiguous that it fails
to give sufficient notice that certain activity is deemed
criminal). Furthermore, the defendants have made no showing that
their product is eligible for the exemption or that they attempted
to make use of the procedure for obtaining an exemption for their
product and were denied.
Defendants contend that their conviction for manufacturing
methamphetamine violates the equal protection clause because the
manufacturer of Rynal is not similarly prosecuted. Because
27
Rynal has since been removed from the list of exempted
substances. See 21 C.F.R. � 1308.22 (1991).
25

defendants' situation does not implicate either a suspect
classification or the exercise of a fundamental right, the
different treatment of defendants and the manufacturer of Rynal is
subject only to rational basis analysis. Plyler v. Doe, 102 S.Ct.
2382, 2394-2395 (1982). The medicinal benefit of Rynal, together
with its reduced potential for abuse, satisfy this review. See
United States v. Worstell.28
We conclude that the defendants' convictions for manufacturing
methamphetamine do not violate the due process and equal protection
clauses.
VI.
Conspiracy Count Issue.
Sewell II claims that the conspiracy count was defective
because it alleged multiple criminal objectives and that the
district court erred in refusing to dismiss it on that ground.
The defendants were charged with one count of conspiracy in
violation of 21 U.S.C. � 846. The indictment alleged seven
objectives of the conspiracy: (1-3) to manufacture P2P,
amphetamine and methamphetamine; (4-5) to possess amphetamine and
methamphetamine with the intent to distribute; and (6-7) to
distribute amphetamine and methamphetamine. Each of the objectives
of the conspiracy is prohibited by 21 U.S.C. � 841.
28
Defendants also contend that the order exempting Rynal, 21
C.F.R. � 1308.22 (1989 Ed.), is properly read as exempting all
substances containing d1-methamphetamine hydrochloride because
the section 811(g)(1) exclusion authority is limited to
substance, not products. We do not so read the order, which is
plainly limited to the product Rynal, a spray manufactured by
Blaine Co. Nothing even remotely similar to Rynal is involved
here. The defendants may not use this criminal proceeding to
collaterally expand the plainly limited exclusion.
26

In Braverman v. United States, 63 S.Ct. 99, 102 (1942), the
Supreme Court held that when there is a single agreement to violate
several substantive statutes, the conspirators may not be
prosecuted for more than one violation of the general conspiracy
statute. This Court has held that a single conspiracy to import
heroin could not violate both the general conspiracy statute, 18
U.S.C. � 371, and the statute that specifically prohibits
conspiracies to import controlled substances, 21 U.S.C. � 963.
United States v. Mori, 444 F.2d 240, 245 (5th Cir.), cert. denied,
92 S.Ct. 238 (1971). Neither holding applies to these facts.
Although count one of the indictment here alleges seven
objectives of the conspiracy, the only conspiracy statute charged
is section 846. In addition, the only substantive statute
implicated is section 841. It is well established that a single
conspiracy may have several objectives. United States v. Elam, 678
F.2d 1234, 1250 (5th Cir. 1982). See also Frohwerk v. United
States, 39 S.Ct. 249 (1919) (conspiracy is a single crime, no
matter how diverse its objects). A single charge may allege
violations of more than one drug conspiracy statute. See United
States v. Rodriguez, 585 F.2d 1234 (5th Cir. 1978), en banc, 612
F.2d 906 (5th Cir. 1980) (finding that Congress intended to permit
the imposition of consecutive sentences for violations of 21 U.S.C.
� 963 [conspiracy to import a controlled substance] and 21 U.S.C.
� 846 [conspiracy to possess with intent to distribute], even
though such violations arise from a single conspiracy having
27

multiple objectives)29, aff'd sub nom. Albernaz v. United States,
101 S.Ct. 1137 (1981).
The defendants here were convicted under a single conspiracy
statute involving objectives prohibited by a single substantive
statute, and were given cumulative sentences for the conspiracy and
the substantive offenses. We hold that the indictment was not
defective and that the district court did not err in refusing to
dismiss it.
VII. Severance Issue.
Sewell II and James Sherrod claim that the district court
erred in refusing to sever their trials and in allowing the
Government to introduce evidence of extrinsic acts committed by
their co-defendants.
The burden to show the need for severance is on the defendant,
who must establish that he suffered compelling prejudice that the
court could not prevent. United States v. Loalza-Vasquez, 735 F.2d
153, 159 (5th Cir. 1984). Severance is not required where only one
conspiracy exists, even if the nature of the proof in each case
differs, so long as the court below gives sufficient cautionary
instructions. United States v. Rocha, 916 F.2d 219, 228 (5th Cir.
1990), cert. denied sub nom. Hinojosa v. United States, 111 S.Ct.
29
Rodriguez was overruled by United States v. Michelena-
Orovio, 719 F.2d 738, 756-757 (5th Cir. 1983), cert. denied, 104
S.Ct. 1605 (1984), to the extent that it held that a defendant's
guilt of conspiracy to possess with intent to distribute a
controlled substance could not be inferred from the quantity of
the substance that the defendant had conspired to import.
Michelena-Orovio did not change the rule that a defendant may be
convicted of violating both drug conspiracy statutes in
connection with a single conspiracy.
28

2057 (1991); United States v. Lamp, 779 F.2d 1088, 1093-94 (5th
Cir.), cert. denied, 476 U.S. 1144 (1986). The defendants here
were all charged in the same conspiracy. The district court
cautioned the jury numerous times to consider the evidence as to
each defendant separately.
Generally, the district court may adequately minimize
prejudice to a co-defendant from extrinsic act evidence by giving
limiting instructions. See United States v. Parziale, 947 F.2d
123, 129 (5th Cir. 1991), cert. denied, 112 S.Ct. 1499 (1992);
United States v. Posner, 865 F.2d 654, 658 n.1 (5th Cir. 1989);
United States v. Prati, 861 F.2d 82, 86-87 (5th Cir. 1988). Such
instructions were given in this case.
Finally, prejudice from either the extrinsic act evidence or
the failure to grant a severance was limited by the form of the
jury verdict submitted by the district court that strongly
reinforced the requirement that the jury consider each count and
each defendant separately.30
We find no error on the part of the district court in refusing
to allow a severance or in admitting extrinsic act evidence.
30
The verdict form had a separate guilty or not guilty answer
blank for each defendant as to each of the two substantive
counts. As to the conspiracy count, there was first an answer
blank as to whether the conspiracy charged was proved beyond a
reasonable doubt to have existed; then (conditional on an
affirmative answer to that question) separate answer blanks as to
each defendant as to whether he was found beyond a reasonable
doubt to be a member of the conspiracy, and (if so) then, as to
each defendant, which of the seven alleged objectives he
intended. All blanks were answered adversely to each of the
appellants.
29

Conclusion
The convictions and sentences of all appellants are
AFFIRMED.
30