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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-5523
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL RUFF and
MICHAEL RAYMOND PERSYN,
Defendants-Appellants.
______________________________________________
Appeals from the United States District Court for the
Western District of Texas
______________________________________________
(February 12, 1993)
Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
This appeal compels us to examine once again the question of
whether a sentencing judge may consider the entire amount of a
mixture containing a detectable amount of methamphetamine rather
than only the actual weight of the illegal substance within the
mixture. Although we acknowledge that this case presents a
slightly different factual situation than those we have previously
addressed, the rule adopted by this Circuit applies equally here to
require that the entire amount be considered. We affirm the
district court's ruling on this issue. We affirm, with one

exception, on the remaining issues before us.
Factual Background and Proceedings Below
San Antonio, Texas, police officer John Langerlaan
(Langerlaan), a deputized special agent for the Drug Enforcement
Administration (DEA), was working undercover on November 28, 1990,
when he met Cathy Wadle (Wadle) and Tedrick Portenier (Portenier),
who told him they had established an amphetamine laboratory and
gave him a list of the chemicals and laboratory equipment that they
needed to manufacture amphetamine and methamphetamine. Langerlaan
informed Wadle and Portenier that he could help them procure the
necessary materials.
On November 30, Langerlaan delivered some ether to Wadle; she
gave him a small amount (approximately one-eighth ounce) of
amphetamine as a gratuity for the ether. Wadle told him that the
laboratory was on a farm near Devine, Texas. Surveillance measures
taken by Langerlaan and other agents revealed that Portenier
obtained the ether from Wadle that evening and drove to
Castroville, Texas, where he met with an individual driving a gray
1989 Mazda pickup truck, which was registered to defendant-
appellant Michael Ruff (Ruff).
Langerlaan met with Portenier on December 1 and agreed to
furnish him with acetic anhydride, which Portenier needed to start
a new manufacturing process. Portenier gave Langerlaan a five or
six gram sample of methamphetamine. In subsequent conversations
with Langerlaan, Portenier and Wadle implicated Ruff and defendant-
appellant Michael Persyn (Persyn) as partners with Portenier in the
manufacturing of amphetamine and methamphetamine; Portenier
2

identified Persyn as the owner of the farm where the laboratory was
located.
On December 19, 1990, Langerlaan delivered some laboratory
equipment and a container of acetic anhydride to Portenier; the
container had a false bottom, in which Langerlaan had placed a
tracking device. Surveillance agents followed the tracking device
to Ruff's house and later to Portenier's residence.
On December 28, on the pretext that he had not been paid for
the ether, Langerlaan persuaded Wadle to show him the location of
the farm where the laboratory was located. During the drive to the
farm, Wadle informed him that she had been to the farm on two
occasions in November 1990 and had seen a fully functional
amphetamine laboratory upon her first visit in the early part of
that month. The mailbox in front of the farmhouse bore the letters
"M & L Persyn." Langerlaan and Wadle did not stop at the farm on
that day, ostensibly because Langerlaan did not want to get Wadle
mixed up in his payment problems.
Based upon these events, as well as further meetings and
conversations with Portenier, Langerlaan obtained search warrants
for the residences of Portenier, Wadle, Ruff, and Persyn. These
warrants were executed on January 17, 1991. Papers and phone lists
were found linking these four individuals together; drug
paraphernalia was found at Persyn's and Wadle's houses. At the
farm, the agents found the remnants of a laboratory containing
precursor chemicals, ether, and jars of liquids containing
phenylacetone (P2P) and methamphetamine.
3

A superseding indictment1 charged Portenier, Wadle, Ruff, and
Persyn with (1) conspiracy to manufacture amphetamine and
methamphetamine; and (2) conspiracy to distribute amphetamine and
methamphetamine. Persyn was charged with an additional count of
possession of P2P with intent to manufacture methamphetamine (count
three). Ruff pleaded guilty to the manufacturing conspiracy
charge; Persyn was convicted in a jury trial of all three counts.2
Persyn challenges his conviction based on the validity of the
search warrant for his residence and the sufficiency of the
evidence on count three; he challenges his sentence on the grounds
that the district court erred in including the entire amount of
liquids containing mere traces of methamphetamine for the purposes
of calculating his base offense level. Ruff contends that he was
not involved in the methamphetamine aspect of the conspiracy and
that therefore it was error for the district court to consider the
methamphetamine and P2P found at the laboratory in assessing his
sentence.
Discussion
I.
Persyn's Claims on Appeal
A.
Validity of Search Warrant
Persyn argues that the district court erred in denying his
motion to suppress the evidence seized from his farm because the
1
The original indictment charged all four with two counts:
(1) conspiracy to manufacture amphetamine; and (2) conspiracy to
distribute amphetamine.
2
Wadle and Portenier entered plea agreements with the
government; they are not parties to the present appeal. Ruff,
Wadle, and Portenier all testified for the government at Persyn's
trial.
4

search warrant did not, on its face, reveal probable cause. He
contends that the search warrant was based on stale information
provided by Wadle; Persyn also challenges Wadle's reliability as an
informant.
An allegation that the information supplied in an affidavit
for a search warrant is stale is to be considered on the facts of
each case. United States v. Webster, 734 F.2d 1048, 1056 (5th Cir.
1984). Such a finding depends upon "the nature of the unlawful
activity and, when the information of the affidavit clearly shows
a long-standing, ongoing pattern of criminal activity, even if
fairly long periods of time have lapsed between the information and
the issuance of the warrant, the information need not be regarded
as stale." Id. Here, it was clear from the affidavit's recital of
Langerlaan's conversations with Portenier that the conspirators
were engaged in manufacturing amphetamines and methamphetamines on
an ongoing basis. The affidavit reflects that at their first
meeting, Portenier requested some ether to complete a manufacturing
process;3 shortly thereafter, he asked for acetic anhydride to
begin a new batch. Nothing suggested either that the conspirators
would not continue in their operation or that the laboratory would
be moved. Further, the delay from December 28, 1990, when, as the
affidavit reflects, Wadle told Langerlaan that she had seen the
laboratory in actual operation in "the first part of November,
1990" and had seen the functional laboratory again (though not
3
Ether is used to "powder out" the amphetamine or
methamphetamine from the liquid stage of the manufacturing
process.
5

while actually in operation) the week before Thanksgiving, until
January 16, 1991, when the warrant was obtained, is not significant
in light of the affidavit's recitals that Langerlaan continued to
meet with Portenier and to gather information from him during that
time. The information provided by Langerlaan in his search warrant
affidavit was not stale.
In any event, the results of the search were admissible, even
if the affidavit was in some way deficient, under the Supreme
Court's holding in United States v. Leon, 104 S.Ct. 3405 (1984),
allowing the admission of evidence seized in reasonable, good-faith
reliance on a search warrant that is later found to be defective.
Leon, 104 S.Ct. at 3411. In setting forth this exception to the
exclusionary rule, the Court noted that suppression remains an
appropriate remedy: (1) if the magistrate or judge issuing the
warrant relied upon a deliberately or recklessly false affidavit;
(2) if the magistrate wholly abandoned his judicial role and did
not act in a neutral and detached manner; (3) if the warrant was
based upon an affidavit so lacking any indicia of probable cause
that official belief in its existence would be unreasonable; and
(4) if the warrant itself was facially deficient so that executing
officers could not reasonably presume it to be valid. Id. at 3421.
Persyn does not claim that any of these situations occurred in the
present case, nor does our review of the record suggest any basis
for so concluding.
The district court did not err in denying Persyn's motion to
suppress the evidence seized at the farm pursuant to the search
warrant.
6

B.
Possession of P2P
Persyn filed a motion to dismiss or for an instructed verdict
as to count three of the superseding indictment, which charged that
"on or about January 17, 1991" Persyn did "possess" phenylacetone
(P2P)
"with
the intent to manufacture a quantity of
methamphetamine." Persyn asserted, as he does on appeal, that the
government's evidence revealed that the amount of P2P found on that
date was insufficient to manufacture methamphetamine. The district
court denied the motion, and the jury convicted Persyn of this
count. Persyn now claims that the evidence is insufficient to
sustain this conviction.
The only evidence of P2P produced at trial was the P2P found
in liquids seized at the farm laboratory on January 17, 1991. DEA
agent Tom Wade testified that he had taken samples from the jars of
liquids found at the laboratory on that date and had made estimates
of the amounts of these liquids. DEA chemist William Glanville
testified that eight of these samples contained P2P; the gross
amounts of the liquids from which these eight samples were taken
equalled approximately one hundred ounces. Glanville testified
upon cross-examination, however, that the net amount of the P2P in
each of these eight samples was a mere trace, too small to measure.
He stated that these solutions were probably the residue from a
manufacturing process and admitted that the amounts of P2P found
were insufficient for use in manufacturing either amphetamine or
methamphetamine.
Although it might well be possible to infer from the evidence
of P2P residue that Persyn had possessed P2P with the intent to
7

manufacture methamphetamine (and had in fact used P2P for that
purpose), the date alleged in the superseding indictment for count
three was "on or about January 17, 1991." The P2P that Persyn
possessed on that date, however, was insufficient to manufacture
methamphetamine.
There is nothing in the record to suggest that the government
tried this case on any theory other than that count three was based
on the P2P solutions found at the laboratory on January 17. There
was no direct evidence of an earlier possession, nor was there any
clear attempt to show that Persyn had possessed P2P at an earlier
time.4
Because the only P2P that the evidence shows Persyn possessed
as alleged was not enough for manufacturing purposes, we must
reverse Persyn's conviction on count three of the superseding
indictment, as he could not have possessed that P2P with the intent
to manufacture methamphetamine.
4
There is a passing reference in Portenier's testimony that
he detected the smell of "PTP" (presumably P2P) at the laboratory
in early November 1990. The district court instructed the jury
that it was not necessary that the possession of P2P occur on the
exact date alleged in the indictment (January 17, 1991), and that
the evidence would be sufficient if it established that the
offense was committed on a date reasonably near the date alleged.
While the instructions did not explain what a reasonable time
would be, we do not believe that under the facts of this case
possession of P2P in the early part of November 1990 is
reasonably near January 17, 1991. There is no proof that the P2P
detected by Portenier in early November was the source of, or
from the same batch or acquisition as, the traces of P2P found in
the laboratory in mid-January. Absent this proof, the possession
in November could be a separate offense and not part of the
charged offense. See United States v. Vaughn, 859 F.2d 863 (11th
Cir. 1988) (discussing requirement of proof of separate
possessions of controlled substances in order to sustain
consecutive sentences on separate charged possessions), cert.
denied, 109 S.Ct. 2064 (1989).
8

C.
Quantities of Methamphetamine and P2P
Persyn claims that it was error for the district court to
consider the entire weight of the mixtures containing
methamphetamine and P2P for sentencing purposes because these
liquids contained only a trace of the controlled substances.
We will uphold a sentence imposed under the sentencing
guidelines so long as it results from a correct application of the
guidelines to factual findings that are not clearly erroneous.
United States v. Alfaro, 919 F.2d 962, 964 (5th Cir. 1990). We
review the district court's legal determinations de novo. United
States v. Mourning, 914 F.2d 699, 704 (5th Cir. 1990).
The law of this Circuit is that a defendant's sentence is
based upon the entire weight of a mixture containing a detectable
amount of methamphetamine or P2P rather than only the weight of the
controlled substance. See United States v. Sherrod, 964 F.2d 1501,
1509-1511 (5th Cir.) (affirming sentence based upon entire amount
of mixture containing methamphetamine), cert. denied, 113 S.Ct. 832
(1992) and cert. dismissed, 113 S.Ct. 834 (1992); United States v.
McKeever, 906 F.2d 129, 133-134 (5th Cir. 1990) (declining to
consider dilution of substance containing P2P for drug conversion
purposes), cert. denied, 111 S.Ct. 790 (1991). While we
acknowledge that there is a split among the circuits on this issue,
see Walker v. United States, 113 S.Ct. 443 (1992) (White, J.,
dissenting from denial of certiorari), we are bound by the decision
of a prior panel, absent en banc reconsideration or a superseding
contrary decision of the Supreme Court. In re Dyke, 943 F.2d 1435,
1442 (5th Cir. 1991).
9

Persyn attempts to distinguish the present factual situation,
claiming that because the traces of methamphetamine found at the
farm were too small to measure, they may not be considered for
sentencing purposes. This argument strives to rewrite the language
of both the Drug Abuse Prevention statute5 and the United States
Sentencing Commission's Guidelines,6 which speak of "detectable,"
rather than "measurable," amounts of methamphetamine. The plain
meaning of the words "detectable amount" would include any
quantity, however small, which can be discerned by accepted methods
of analysis.
Although the amounts of methamphetamine and P2P found in some
of the liquids seized at Persyn's farm were mere traces, the DEA
chemist was nonetheless able to detect their presence within the
mixture. As the liquids thus contained "detectable" amounts of
5
This statute provides, inter alia, penalties for offenses
involving certain quantities of "a mixture or substance
containing a detectable amount of methamphetamine, its salts,
isomers, or salts of its isomers." 21 U.S.C. � 841(b)(1).
6
A footnote to the Drug Quantity Table which follows U.S.S.G.
section 2D1.1 provides:
"Unless 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. . . .
The terms `PCP (actual)' and `Methamphetamine (actual)'
refer to the weight of the controlled substance,
itself, contained in the mixture or substance. For
example, a mixture weighing 10 grams containing PCP at
50% purity contains 5 grams of PCP (actual). 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 PCP
(actual) or methamphetamine (actual), which ever is
greater." U.S.S.G. � 2D1.1, Footnote to Drug Quantity
Table (1991) (emphasis added).
10

these controlled substances, the district court properly considered
the entire amount of the mixtures in calculating the base offense
level.
Our attention has been called to the case of United States v.
One Gates Learjet, Serial No. 28004, 861 F.2d 868 (5th Cir. 1988),
in an effort to support the argument that a "measurable" amount of
methamphetamine is required for sentencing purposes. There, the
district court ordered forfeiture of an aircraft, finding that it
had been used to transport controlled substances. The sole
evidence of this illegal use, however, was a trace of cocaine found
in the dust vacuumed from the airplane; this trace was visible only
with the use of a microscope and was too small to measure except by
sophisticated scientific procedures. One Gates Learjet, 861 F.2d
at 869. A DEA chemist testifying for the government admitted that
the quantity of cocaine could have been brought on board the
airplane on the shoe of a passenger or crew member (and thus need
not have been the residue of a load of cocaine transported by the
aircraft). Id. at 872. This Court concluded that there was no
showing of probable cause that would support forfeiture and
reversed the order of the district court. Id. at 872-873.
The trace of cocaine at issue in One Gates Learjet was found
insufficient to show that the aircraft had been used for an illegal
purpose. In contrast, in the case before us, there is no doubt
that the defendants were engaged in the illegal activity of
manufacturing methamphetamine. Not only did the chemist in this
case testify that the traces of methamphetamine and P2P found at
Persyn's farm were probably the residue from a manufacturing
11

process, but the admissions of Persyn's co-defendants, testifying
for the government, reveal the illegal nature of the conspiracy.
Further, at issue here is Persyn's sentence. We are not
forced to rely solely on these traces in order to sustain Persyn's
conviction for conspiracy to manufacture and distribute amphetamine
and methamphetamine.
Finally, we do not consider the district court's factual
findings concerning the amounts of controlled substances involved
for sentencing purposes to be clearly erroneous. In addition to
the traces of methamphetamine and P2P seized at Persyn's farm, the
government's evidence included other more substantial amounts of
methamphetamine, amphetamine, and precursor chemicals, supporting
the conclusion that the traces at issue were not casually present
but were part of the result of the manufacturing process.
We affirm the district court's assessment of Persyn's sentence
on counts one and two of the superseding indictment.7
7
Persyn was sentenced on each of the three counts to
concurrent terms of 121 months' imprisonment followed by
concurrent three year supervised release terms. No fine was
levied on any count. A $50 special assessment was imposed on
each. The presentence report, adopted by the district court,
calculated the guideline range for each count wholly by reference
to the range for the conspiracy counts (calculated by reference
to the drug quantities), grouping all offenses together under
U.S.S.G. � 3D1.2(d). There were no adjustments to the base
offense level. The guideline range for each count was thus
exactly the same, 121 months' to 151 months' imprisonment and 3
to 5 years' supervised release (likewise the statutory maximum
for each count was 20 years). In these circumstances, our
reversal of Persyn's conviction on count three does not require
resentencing on counts one and two, as it is clear beyond doubt
that nothing respecting count three influenced the sentences on
the other counts.
12

II.
Ruff's Claim on Appeal
Ruff claims that the district court erred in accepting the
probation officer's calculations of his base offense level in the
presentence investigation report (PSI). Specifically, Ruff
contends that the evidence revealed that his involvement in the
conspiracy extended only to the manufacture of amphetamine and that
he had nothing to do with the manufacturing of methamphetamine; he
argues that it was error to include the methamphetamine and P2P
found at the lab in the total amount of controlled substances used
to calculate his base offense level.8
Ruff disregards the fact that he pleaded guilty to conspiracy
to manufacture amphetamine and methamphetamine. At his plea
hearing, the attorney for the government read the factual basis for
the plea. This summary included allegations implicating Ruff in
the conspiracy to manufacture methamphetamine: (1) Portenier
stated that he was solicited by Ruff and Persyn to help them find
chemicals to be used in the manufacture of amphetamine and
methamphetamine; (2) agents executing search warrants found
documents that revealed the association among the four co-
8
The probation officer computed the offense level on the
basis of the controlled substances found at Persyn's farm: 11.6
grams of amphetamine, 995.15 grams of methamphetamine, and
2858.85 grams of P2P. These substances, converted according to
the Drug Equivalency Tables, are the equivalent of 2186.68 grams
of heroin (under the 1990 Sentencing Guidelines, which were
applied in Ruff's sentencing), an amount that yields a base
offense level of 32. The district court reduced the base offense
level two points for acceptance of responsibility and another
four points upon the government's motion for a downward departure
due to cooperation, resulting in an offense level of 26. Had the
district court considered only the amphetamine, Ruff's base
offense level would have been 12, prior to any reduction.
13

defendants and that contained recipes and records for the
manufacture and distribution of methamphetamine and amphetamine;
(3) Portenier provided Langerlaan with samples of both amphetamine
and methamphetamine; and (4) liquids seized at Persyn's farm were
analyzed to contain P2P and methamphetamine. Further evidence of
Ruff's involvement in manufacturing methamphetamine was provided by
Wadle's testimony at Persyn's trial.
Ruff, under oath, agreed with the prosecutor's summary,
admitting to the evidence pertaining to methamphetamine and to his
association with the co-conspirators. He acknowledged that he
understood that the government would be required to prove those
facts beyond a reasonable doubt should he elect to proceed to
trial. Ruff did not take advantage of the district court's offer
to allow him to withdraw his plea and has not challenged this plea
on appeal.
In his objections to the PSI and at his sentencing hearing,
however, Ruff denied all involvement with the methamphetamine
aspect of the conspiracy. Unlike his statements made at his plea
hearing, these new assertions were not made under oath. See United
States v. Johnson, 823 F.2d 840, 842 (5th Cir. 1987) (holding that
district court abused its discretion in relying exclusively on
government attorney's version of the crime). Further, even if the
district court considered this denial, it clearly accepted Ruff's
sworn testimony at his plea hearing over his unsworn recantation at
sentencing. We will not disturb the district court's credibility
choices absent clear error, which we do not find here. United
States v. Doucette, No. 91-4994 (5th Cir. December 9, 1992).
14

Finally, immediately after overruling Ruff's objections to the
inclusion of the methamphetamine evidence for sentencing purposes,
the district court once again gave Ruff the opportunity to withdraw
his plea. This he declined to do.
Because we conclude that the district court's findings were
not clearly erroneous, we affirm Ruff's sentence.
Conclusion
For the reasons stated above, we affirm the district court's
denial of Persyn's motion to suppress the evidence acquired
pursuant to the search warrant issued for his farm. In addition,
we affirm his conviction and sentence on counts one and two of the
superseding indictment. We reverse Persyn's conviction and
sentence on count three of that indictment. Finally, we affirm
Ruff's conviction and sentence.
AFFIRMED as to Ruff; AFFIRMED in part and REVERSED in
part as to Persyn
15