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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-8223
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH VERNON HOSTER,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
(April 7, 1993)
Before WISDOM,* GARWOOD and HIGGINBOTHAM, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Keith Vernon Hoster (Hoster) pleaded
guilty to one count of possession, with intent to distribute, of an
unspecified amount of amphetamine. He was sentenced under the
Sentencing Guidelines both on the basis of the amount of the
amphetamine involved in the subject transaction and on the basis of
a quantity of a precursor chemical, phenylacetic acid, also
involved in the transaction that was treated as conduct relevant to
the charged offense. He appeals on various issues. Because the
*
Because of illness, Judge John Minor Wisdom was not present
at the oral argument of this case; however, having had available
the tape of the oral argument, he participated in this decision.

district court miscalculated the effect of the phenylacetic acid on
Hoster's base offense level, we reverse and remand. We reject
Hoster's other contentions on appeal.
Facts and Proceedings Below
On November 14, 1991, Texas Department of Public Safety
Narcotic Sergeant Robert Wilkerson and Hill County, Texas,
Sheriff's Office Investigator Coy West, working in an undercover
capacity, arranged to sell amphetamine and the precursor chemical
phenylacetic acid to Hoster and Mark Steven Roberts (Roberts).
Hoster had previously negotiated with West over the telephone to
purchase one pound of amphetamine and a drum of 110 pounds of
phenylacetic acid.
On November 14, Investigator West met Hoster and Roberts at a
Diamond Shamrock station in Hillsboro, Texas. Hoster and Roberts
arrived at the station independently. Hoster left his vehicle, a
white 1990 GMC pickup, and got into West's automobile. After
introductions, he gave West a white envelope containing $12,000 in
cash,1 a car title to a 1986 Chevrolet Corvette, and additional
papers indicating that Hoster was signing the Corvette over to
West.2 After Hoster paid for the amphetamine and phenylacetic
1
Inspector West's testimony at Hoster's sentencing hearing
indicated that the price negotiated and paid for the amphetamine
was $13,000 instead of $12,000. The government's factual
statement at Hoster's rearraignment set the amount at $12,000.
2
According to the affidavit filed with the original criminal
complaint in this case, the cash was consideration for the
amphetamine, and the title to the vehicle was consideration for
the phenylacetic acid. Hoster expressed an intent to use the
phenylacetic acid, within the four or five days following this
transaction, to manufacture amphetamine, which would in turn be
sold for money to redeem his Corvette.
2

acid, he and West arranged for the transfer of the substances to
Roberts, who had been waiting nearby in a 1987 Dodge Shadow.
Roberts, now driving Hoster's GMC pickup, followed West to a
Love's Truck Stop in Hillsboro where Sergeant Wilkerson was
waiting. West and Roberts entered Wilkerson's vehicle. Upon
Roberts' request to see the amphetamine, Wilkerson produced a clear
plastic bag containing one pound of amphetamine powder and a set of
scales. Roberts examined the texture of the amphetamine and, at
the officers' invitation, weighed the package.3 After indicating
that the weight of the amphetamine was acceptable, Roberts declined
to inspect the phenylacetic acid, saying "No, let's just throw it
in the back of the truck." He took the amphetamine and placed it
in the pickup, then returned to Wilkerson's vehicle, presumably to
get the drum of phenylacetic acid. At this time, Wilkerson gave a
prearranged signal, and Roberts was arrested. The arrest occurred
before Roberts unloaded the drum containing the phenylacetic acid
from Wilkerson's vehicle.
Hoster had remained behind at the first gas station and did
not take part in the events at the Love's station.4 He was
subsequently arrested at another location in Hillsboro.
On December 3, 1991, Hoster was indicted on one count of
3
Information provided by the Texas Department of Public
Safety revealed that the amphetamine weighed 16 ounces and was
65% pure.
4
At the hearing on his guilty plea, Hoster agreed with
factual basis as read by the attorney for the government.
Although he could not personally verify the events occurring at
the Love's site, his attorney indicated that Hoster did not
dispute the government's version of those events.
3

conspiracy to possess, with intent to distribute, amphetamine, a
Schedule II controlled substance. On February 10, 1992, Hoster and
the government entered a plea agreement, whereby Hoster agreed to
plead guilty to a superseding information in return for the
government's agreement to dismiss the indictment.5 The superseding
information charged Hoster with possession, with intent to
distribute, amphetamine, and aiding and abetting, all in violation
of 21 U.S.C. � 841(a)(1) and 18 U.S.C. � 2.
The plea agreement provided that the government would refrain
from prosecuting Hoster for any other Title 21 or 18 offenses of
which the government was then aware. In addition, the government
agreed to seek a section 5K1.1 reduction at sentencing for
substantial assistance to authorities.
After a hearing on the plea agreement, the district court
accepted the plea and ordered that a presentence investigation
report (PSR) be created. In preparing the PSR, the probation
officer erroneously classified both the amphetamine and the
phenylacetic acid purchased by Hoster on November 14, 1991, as
offense conduct, instead of considering the phenylacetic acid as
relevant conduct. The PSR calculated Hoster's base offense level
by converting both the amphetamine and the phenylacetic acid to a
marihuana equivalent and arriving at a base offense level of 34.6
5
Hoster waived his right to be prosecuted by indictment.
6
It is unclear how the probation officer converted the
phenylacetic acid. This precursor chemical is not listed in
section 2D1.1's Drug Quantity or Drug Equivalency Tables, and the
Guidelines do not expressly establish any method for equating it
with marihuana or any other controlled substance or immediate
precursor.
4

In addition, the PSR included as relevant conduct certain
events occurring in 1989, when law enforcement authorities executed
a search warrant in Johnson County, Texas, and discovered an
operating clandestine laboratory. The PSR included 25 pounds of
amphetamine, as relevant conduct, based upon an estimate of the
amount of amphetamine produced at that laboratory each month.
Evidence collected from that search implicated Hoster in the
manufacturing of amphetamine at the laboratory. No prosecution
resulted from this search.7
Hoster objected to the PSR on several grounds. First, he
argued that the 1989 events concerning the amphetamine laboratory
were not relevant conduct within the meaning of the Guidelines and
that inclusion of that information constituted a violation of the
government's agreement in the plea bargain agreement not to
prosecute Hoster for any other then-known narcotics violations.
Hoster also claimed that the factual statement in the PSR which
indicated that he had purchased the 110 pounds of phenylacetic acid
on November 14 was incorrect, because the phenylacetic acid was
never delivered to him or to his co-defendant Roberts, and because
The government suggests that the probation officer equated
the 110 pounds of phenylacetic acid with the same amount of
phenylacetone, which unlike phenylacetic acid is listed on the
Drug Equivalency Table. One hundred ten pounds, or 49.83
kilograms, of phenylacetone, possessed for a purpose other than
the manufacture of methamphetamine, equates with 3,737.25
kilograms of marihuana. Considered either alone or with the 90.6
kilograms of marihuana, the result of the conversion of the
amphetamine, this amount results in a base offense level of 34,
U.S.S.G. � 2D1.1(c)(5), which is the level recommended by the PSR
and adopted by the district court.
7
In addition to Hoster, Roberts and a third person, Jimmy
Daniel, were also implicated in the 1989 events.
5

"neither of them exercised care[,] custody, or control over that
precurser [sic] chemical at any time." He contended that inclusion
of the phenylacetic acid also violated the plea bargain agreement,
for the same reason as claimed for the 1989 conduct. Hoster
further complained that the PSR should have recommended a two point
reduction for acceptance of responsibility. Finally, he challenged
the PSR's computation of his offense level.8
The district court stated its belief that the PSR was correct
in considering the 1989 events and in including the 25 pounds of
amphetamine as relevant conduct, but nevertheless, "out of an
abundance of caution," expressly declined to consider those events
in sentencing Hoster. The court did consider the 110 pounds of
phenylacetic acid, which were part of the November 14, 1991,
transaction, as "relevant conduct." Using the PSR's method of
conversion of the 110 pounds of phenylacetic acid, however, the
resulting base offense level of 34 would have been the same even
had the court included the 25 pounds of amphetamine from the 1989
conduct.
The district court adopted the PSR's calculation of the base
offense level as 34, which, with a criminal history category of I,
yielded an imprisonment range of 151 to 188 months. The court
sentenced Hoster to 170 months' imprisonment and 5 years'
8
Hoster suggested that the offense level should be based
solely on the one pound of amphetamine, which when converted to
marihuana according to the Guideline's Drug Equivalency Tables,
results in a base offense level of 24. U.S.S.G. � 2D1.1(c)(10);
Application Note 10 to � 2D1.1. Hoster then figured in the two
point reduction for acceptance of responsibility, resulting in an
offense level of 22, which, with his criminal history category of
I, provides a punishment range of 41-51 months' imprisonment.
6

supervised release, imposed a fine of $5,000, without interest, and
ordered Hoster to pay a special assessment of $50. Hoster filed a
timely notice of appeal.
Discussion
We will uphold a sentence imposed under the Sentencing
Guidelines so long as it is the result of 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).
I.
Relevant Conduct
In the plea agreement, the government agreed not to prosecute
Hoster for any offense, other than the possession of the sixteen
ounces of amphetamine to which Hoster pleaded guilty, of which the
government was then aware. Paragraph 7 of the agreement provided:
"In exchange for Defendant's plea, the United States
Attorney agrees to refrain from prosecuting Defendant
Hoster for other Title 21, and Title 18, United States
Code, violations of which the United States is now aware,
which may have been committed by the Defendant in the
Western District of Texas. That is, this action now
pending is the extent of the Federal prosecution against
the Defendant in the Western District of Texas based upon
all facts at hand."
Hoster complains that the district court's inclusion of the
phenylacetic acid as relevant conduct for sentencing purposes
violated the government's agreement not to prosecute him for
additional offenses.9
The law of this Circuit holds otherwise. Consideration of
relevant conduct in the selection of a defendant's sentence within
the range of permissible punishment established by Congress for his
9
The PSR included the phenylacetic acid as offense conduct;
the district court, however, described it as relevant conduct.
7

offense of conviction is not the equivalent of prosecuting the
defendant for an offense additional to his offense of conviction.
United States v. Kinder, 946 F.2d 362, 367 (5th Cir. 1991), cert.
denied, 112 S.Ct. 1677 (1992). In Kinder, the defendants purchased
269 grams of methamphetamine from an undercover officer. They
pleaded guilty to a charge of conspiring to possess more than one
hundred grams in exchange for the government's promise not to
prosecute them for additional offenses. The district court
considered seventeen ounces of methamphetamine referred to by one
defendant during the investigation for sentencing purposes. This
court held that the inclusion of that additional quantity did not
violate the plea bargain. "Inclusion of the other 17 ounces in
sentencing is not equivalent to prosecution." Id. See also
United States v. Rodriguez, 925 F.2d 107 (5th Cir. 1991).
The district court did not violate the plea agreement by
considering relevant but uncharged conduct in selecting a
punishment within the statutory range for the offense of
conviction.
The district court also did not err in including the
phenylacetic acid as conduct relevant to Hoster's offense of
possession of one pound of amphetamine.
Guideline section 1B1.3(a)(2) allows the sentencing court to
consider, for purposes of calculating a base offense level, "all
such acts and omissions that were part of the same course of
conduct or common scheme or plan as the offense of conviction."
Thus all quantities of drugs involved in a common scheme are
considered in reaching the base offense level, even if the
8

defendant is convicted only of distributing or possessing part of
the entire quantity. See � 3D1.2, Application Note 4, Example (4);
United States v. Mendoza-Burciaga, 981 F.2d 192, 198 (5th Cir.
1992).
It is clear that both the amphetamine and the phenylacetic
acid were part of the same course of conduct. Hoster's
negotiations with Investigator West concerned the purchase of both
amphetamine and phenylacetic acid, to be paid for and delivered at
the same time and place. When Hoster arrived at the Diamond
Shamrock station, he paid West for both the amphetamine and the
phenylacetic acid. The fact that his co-defendant, Roberts, was
arrested before he took actual possession of the phenylacetic acid
does not change the fact that the delivery of both substances was
to occur at the same time when Roberts met the agents at the Love's
station. Both the amphetamine and the phenylacetic acid were part
of the same transaction involving the same buyer and seller,
occurring at the same time and place. The district court did not
err in considering the possession of the 110 pounds of phenylacetic
acid as relevant conduct.
II.
Rule 11(c)(1)
Hoster contends that the district court failed to advise him
of a minimum mandatory sentence before accepting his guilty plea,
in violation of FED. R. CRIM. P. 11(c)(1). It is clear from the
language of the rule that it pertains only to minimum statutory
sentences.10
10
Rule 11(c)(1) provides in pertinent part:
9

Hoster pleaded guilty to possession of an unspecified amount
of amphetamine, with the intent to distribute it, in violation of
21 U.S.C. � 841(a)(1).11 Subsection 841(b) provides the statutory
penalties for violations of subsection (a). For the possession of
any amount of amphetamine,12 subsection (b)(1)(C) provides that a
defendant
"shall be sentenced to a term of imprisonment of not more
than 20 years and if death or serious bodily injury
results from the use of such substance shall be sentenced
to a term of imprisonment of not less than twenty years
or more than life, a fine not to exceed the greater of
that authorized in accordance with the provisions of
Title 18, or $1,000,000 if the defendant is an individual
or $5,000,000 if the defendant is other than an
individual, or both."
As Hoster's offense did not result (and was not alleged to have
resulted) in death or serious injury (or, indeed, in any injury),
"Before accepting a plea of guilty or nolo contendere,
the court must address the defendant personally in open
court and inform the defendant of, and determine that
the defendant understands, the following:
"(1) the nature of the charge to which the plea is
offered, the mandatory minimum penalty provided by
law, if any, and the maximum possible penalty
provided by law, including the effect of any
special parole or supervised release term, the
fact that the court is required to consider any
applicable sentencing guidelines but may depart
from those guidelines under some circumstances . .
. ." (Emphasis added.)
11
This section makes it unlawful for any person knowingly or
intentionally "to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a
controlled substance." Amphetamine is a Schedule II controlled
substance. 21 U.S.C. � 812(c).
12
The language of the statute includes amphetamine in its
description of "a controlled substance in schedule I or II except
as provided in subparagraphs (A), (B) and (D)," as none of the
exceptions encompass amphetamine.
10

the minimum penalty provisions that the statute does provide are
not applicable here, and Hoster does not contend otherwise.
The district court did inform Hoster at the Rule 11 hearing
that the maximum possible punishment for possession of amphetamine
with intent to distribute and aiding and abetting that possession
was twenty years' incarceration followed by at least three and up
to five years of supervised release, a fine up to a million
dollars, and a fifty dollar mandatory special assessment. Hoster
indicated that he understood this.
Hoster seems to argue that the district court should have
informed him of a minimum sentence range under the Guidelines. As
discussed above, the language of Rule 11(c) concerns only the
statutory penalties; the rule certainly does not require the
district court to predict the Guideline range applicable to a
defendant before accepting a guilty plea and before a PSR is
prepared. United States v. White, 912 F.2d 754, 756 (5th Cir.),
cert. denied, 111 S.Ct. 529 (1990).
As the statute provided no mandatory minimum sentence, the
district court's advice to Hoster was not deficient under Rule 11.13
III. Calculation of Base Offense Level
The district court accepted the PSR's calculation of Hoster's
13
The government argues that the district court need not have
informed Hoster of any minimum mandatory sentence because the
superseding information to which he pleaded guilty did not allege
a specific quantity of amphetamine. We do not reach this
contention, however, in light of our holding that the district
court was not required to advise Hoster of any minimum mandatory
sentence in this particular case because there is no statutory
mandatory minimum sentence for Hoster's offense of possession of
one pound (or any other quantity) of amphetamine.
11

offense level. The probation officer considered both the one pound
of amphetamine and the 110 pounds of phenylacetic acid as offense
conduct. The district court correctly considered the phenylacetic
acid as relevant conduct. Apparently, the probation officer
converted the phenylacetic acid to phenylacetone, converted the
amphetamine and phenylacetone to marihuana using the section 2D1.1
Drug Equivalency Tables, and then added the two amounts of
marihuana together to come up with a base offense level of 34.
This method of conversion, and the resulting base offense level,
was apparently accepted by the district court.
Hoster argues for the first time on appeal that the district
court relied on the wrong guideline in calculating the effect of
the phenylacetic acid on his base offense level.14 He contends that
for this purpose the court should have looked to section 2D1.11, a
new provision, as of 1991, controlling offenses involving precursor
chemicals (such as phenylacetic acid), rather than to section
2D1.1, the section governing controlled substance (such as
amphetamine) and immediate precursor offenses.15
Because he did not raise this issue below, we review the
district court's actions only for plain error. United States v.
14
Hoster did not object at his sentencing hearing to the PSR's
method of conversion of the phenylacetic acid to marihuana via
phenylacetone, presumably because his contention was that he
should be sentenced on the basis of the amphetamine alone.
15
Hoster committed the offense to which he pleaded guilty on
November 14, 1991. He was sentenced pursuant to the Guidelines
on April 15, 1992. Both of these events occurred during the
reign of the 1991 amendments to the Sentencing Guidelines, which
became effective on November 1, 1991. Hence the new provision,
section 2D1.11, applies to Hoster's sentencing.
12

Surasky, 974 F.2d 19 (5th Cir. 1992), petition for cert. filed,
(February 1, 1993). Plain error is "error so obvious that [this
Court's] failure to notice it would seriously affect the fairness,
integrity, or public reputation of [the] judicial proceeding and
result in a miscarriage of justice." Id. at 21.
In Surasky, the defendant pleaded guilty to possession of a
listed chemical, phenylacetic acid, with the intent to manufacture
a controlled substance, methamphetamine, in violation of 21 U.S.C.
section 841(d). The sentencing court adopted the PSR's
calculations, which converted the phenylacetic acid possessed by
Surasky to phenylacetone and then to methamphetamine according to
a formula devised by the Drug Enforcement Administration to arrive
at a base offense level of 28. Surasky objected to this manner of
figuring his sentence for the first time on appeal; he argued that
the district court should have used the Guidelines' Drug
Equivalency Table to convert the phenylacetic acid to cocaine or
heroin, which would have resulted in an offense level of 26. This
Court concluded that, because the Guidelines do not require the use
of the Drug Equivalency Tables, the district court did not commit
plain error by failing to use them.
The present case differs from Surasky in two important
aspects. First, and most importantly, Guidelines section 2D1.11
applies to Hoster's sentencing but was not in effect for Surasky's.
This section, for the first time in the Guidelines, recognizes
offenses involving precursor chemicals such as phenylacetic acid
and sets forth offense levels and conversion tables for computing
a defendant's sentence. Second, the discrepancy between the
13

offense levels as computed by the district court and the defendant
in Surasky was a matter of two levels. Here, as will be seen
below, we calculate Hoster's offense level to be 28, six levels
lower than the level 34 the district court used.
We conclude that the district court plainly erred in not
considering the effect of section 2D1.11 on Hoster's sentence.
Seeing the need to consider section 2D1.11 and doing so,
however, are two different matters. The Guidelines do not provide
an express method for combining section 2D1.11 precursor chemicals
with section 2D1.1 controlled substances or immediate precursors
where, as here, the presence of the precursor chemical is merely
conduct relevant to possession of a controlled substance. The Drug
Equivalency Table of section 2D1.1 converts controlled substances
and immediate precursors to marihuana; the Chemical Equivalency
Table of section 2D1.11 converts precursor chemicals to ephedrine.
There is no cross-equivalency table, nor is there any indication
elsewhere in the Guidelines as to how quantities of controlled
substances and precursor chemical are to be aggregated when
relevant conduct is involved.
Further, there are no cases directly on point. Those cases
that discuss both sections 2D1.1 and 2D1.11 concern conduct
occurring before section 2D1.11 became effective. In addition,
these cases generally involve the precursor chemical as offense
conduct, e.g., offense of possession of a listed chemical with
intent to manufacture a controlled substance, 21 U.S.C. � 841(d),
14

rather than as relevant conduct.16
The grouping rules of section 3D1 provide some guidance.
Application Note 3 to section 2D1.11 addresses instances when a
defendant is convicted of both an offense involving a listed
chemical, covered by section 2D1.11, and a related offense
involving an immediate precursor or other controlled substance,
under section 2D1.1. In such a case, the appropriate procedure is
to determine the offense level under each guideline separately and
then to group the counts together pursuant to the rules of section
3D1.2(b).
Section 3D1.2(b) allows grouping "[w]hen counts involve the
same victim and two or more acts or transactions connected by a
common criminal objective or constituting part of a common scheme
or plan."17 We note that an offense under section 2D1.1 and another
under section 2D1.11 could also, perhaps more properly, be grouped
16
See United States v. Leed, 981 F.2d 202 (5th Cir. 1993)
(prior to amendment adding section 2D1.11, section 2D1.1 applied
to offense of possession of phenylacetic acid with intent to
manufacture amphetamine); United States v. Surasky, 974 F.2d at
19 (defendant pleaded guilty to possession of phenylacetic acid
with intent to manufacture methamphetamine); United States v.
Voss, 956 F.2d 1007 (10th Cir. 1992) (noting that addition of
section 2D1.11, although not governing that case because conduct
occurred prior to effective date of section, supported finding
that section 2D1.1 did not apply to charges of possession of
listed chemicals with intent to manufacture), petition for cert.
filed (December 7, 1992); United States v. Hyde, 977 F.2d 1436
(11th Cir. 1992) (affirming sentence of defendant who pleaded
guilty to possession of phenylacetic acid with knowledge that it
would be used to manufacture methamphetamine where sentence was
based on amount of methamphetamine which could have been produced
from the listed chemical), petition for cert. filed, (February 8,
1993).
17
The term "victim," for purposes of drug offenses for which
there are no identifiable victims, is the societal interest that
is harmed. Section 3D1.2, application note 2.
15

under section 3D1.2(d), which specifically lists the two sections
together. Section 3D1.2(d) applies "[w]hen the offense level is
determined largely on the basis of . . . the quantity of a
substance involved."
Once multiple counts have been grouped together according to
the rules of 3D1.2, the next step is to determine the offense level
applicable to each group by applying the rules of section 3D1.3.
It is at this step that the difference between grouping pursuant to
3D1.2(b) or 3D1.2(d) becomes evident.
Section 3D1.3(a) governs to determine the offense level for
groups formed under section 3D1.2(b). In this case, the offense
level applicable to the group is the highest offense level of the
counts in the group. In other words, the offense level for each
count in the group is determined according to the applicable
guidelines, with adjustments as provided by Chapter Three of the
Guidelines, which are not applicable here;18 the highest of those
levels becomes the offense level for the group.19
If offenses are grouped under section 3D1.2(d), however,
section 3D1.3(b) provides that the offense level applicable to the
18
Parts A, B, and C of Chapter Three provide for adjustments
based on the type of victim, the defendant's role in the offense,
and any obstruction of justice that is present.
19
Were we to group the amphetamine and phenylacetic acid
according to the rules of 3D1.2(b), as though they were both
counts of conviction, we would calculate the offense level for
each and take the higher. The 1 pound, or 453.6 grams of
amphetamine, converts to 90.72 kilograms of marihuana and yields
a base offense level of 24. Section 2D1.1(c)(10). The 110
pounds, or 49.89 kilograms, of phenylacetic acid results in a
base offense level of 28. Section 2D1.11(d)(1). Following
3D1.3(a), the group offense level would be 28.
16

group is the offense level corresponding to the aggregated quantity
involved in the counts, again with the Chapter Three adjustments,
which do not apply here.
Although the Guidelines are not clear about whether offenses
(or offenses and relevant conduct) involving sections 2D1.1 and
2D1.11 should be grouped under section 3D1.2(b) or section
3D1.2(d), we determine that the more appropriate method here is
under the latter.20 Section 3D1.2(d) mentions sections 2D1.1 and
2D1.11 explicitly and allows grouping on the basis of the quantity
of the substance or substances involved. As this section more
narrowly describes this controlled substance case, we look to it
for instruction in how to calculate Hoster's base offense level.
Using section 3D1.2(d) creates a problem of how to aggregate
the quantities of amphetamine and phenylacetic acid involved.
Nowhere do the Guidelines provide a table for equating the
precursor chemicals from section 2D1.11 with the immediate
precursors and controlled substances of section 2D1.1.21
The solution that seems most reasonable to us, which treats
the phenylacetic acid as relevant conduct while still allowing its
presence to reflect on the seriousness of the offense conduct, is
20
Although Application Note 3 to section 2D1.11 references the
grouping rule of section 3D1.2(b), this was in the context of
separate offenses under sections 2D1.1 and 2D1.11. Because we
are faced here with only a single offense, the grouping rules are
not dispositive. We use them only for instruction.
21
The PSR seems to have equated the phenylacetic acid with
phenylacetone and then proceeded to convert the phenylacetone and
the amphetamine to marihuana. The problem with this approach is
that there is nothing in the Guidelines by which one could infer
a relationship between phenylacetic acid and phenylacetone.
17

to convert the phenylacetic acid to marihuana by equating the
amounts of each that give rise to the same offense level. In other
words, Hoster possessed 110 pounds, or 49.89 kilograms, of
phenylacetic acid. The Chemical Quantity Table of section 2D1.11
provides a level of 28 for offenses involving 20 or more kilograms
of phenylacetic acid. The Drug Quantity Table of section 2D1.1
provides an offense level of 28 for violations involving at least
400 kilograms but less than 700 kilograms of marihuana. Giving the
defendant the benefit of lenity, we equate his possession of 49.89
kilograms of phenylacetic acid with possession of 400 kilograms of
marihuana, because both yield the same offense level.
We then convert the amphetamine to marihuana according to
section 2D1.1's Drug Equivalency Tables and arrive at the figure of
90.72 kilograms of marihuana.22 Adding the 90.72 kilograms of
marihuana from the amphetamine conversion to the 400 kilograms of
marihuana from the phenylacetic acid conversion results in a sum of
490.72 kilograms of marihuana. The offense level for this amount
of marihuana is 28.
It is purely coincidental that the final offense level of 28
reached by this method is the same as if we had calculated the
offense level by considering each substance separately and taking
the higher level. The two results need not coincide in other cases
involving different amounts or different substances.23
22
One pound, or 453.6 grams, of amphetamine is the equivalent
of 90.72 kilograms of marihuana (453.6 grams x 200 grams = 90,720
grams, or 90.72 kilograms).
23
An alternate method of converting phenylacetic acid (here
110 pounds or 49.89 kilograms) to marihuana would be the
18

Because the district court did not take the new section 2D1.11
into account, and because the offense level of 34 as determined by
the district court is significantly higher than the level we reach,
the district court plainly erred in assessing Hoster's base offense
level.24
We remand to the district court for resentencing in accordance
with this opinion.
IV.
Acceptance of Responsibility
Finally, Hoster raises, for the first time in his reply brief,
that the district court should have reduced his offense level under
following.
Section 2D1.11 provides a base level of 28 for offenses
involving 20 or more kilograms of phenylacetic acid. Section
2D1.1 reveals that the amount of marihuana which produces a level
28 offense level is at least 400 but not more than 700 kilograms.
Using the 400 kilogram amount of marihuana, as the most favorable
to the defendant, the ratio of 20 kilograms of phenylacetic acid,
the lowest amount for level 28 under section 2D1.11, to 400
kilograms of marihuana is 1:20.
Multiplying the 49.89 kilograms of phenylacetic acid
involved here by this ratio results in a total of 997.8 kilograms
of marihuana (49.89 kilograms of phenylacetic acid x 20
kilograms), which carries a base offense level of 30. Adding in
the 90.72 kilograms of marihuana converted from the amphetamine
results in a total of 1088.52 kilograms of marihuana. The base
offense level for this amount of marihuana is 32.
We rejected this method of conversion because it would
punish Hoster's possession of phenylacetic acid, even as related
conduct, more seriously as converted to marihuana than if it were
calculated solely under the Chemical Quantity Table. The
Guidelines establish a maximum culpability level of 28 for the
possession of any amount of phenylacetic acid not less than 20
kilograms. Converting the phenylacetic acid to marihuana using
the ratio method results in the higher base offense level of 30.
We conclude that the method of conversion fairest to the
defendant is to merely equate the phenylacetic acid and marihuana
using the offense level rather than figuring in the total amount
of phenylacetic acid using the ratio.
24
Offense level 28, with Hoster's criminal history category of
I, would produce a guideline confinement range of 78 to 97
months.
19

U.S.S.G. � 3E1.1 for acceptance of responsibility.25 Ordinarily,
we will not consider a new claim raised for the first time in an
appellant's reply brief. United States v. Prince, 868 F.2d 1379,
1386 (5th Cir.), cert. denied, 110 S.Ct. 321 (1989). Even were we
to address this issue, we would not disturb the district court's
decision. The PSR did not recommend a reduction for acceptance of
responsibility, noting that Hoster had declined to discuss any
prior or subsequent drug activities on the advice of counsel.
Under the 1991 version of the Guidelines, the version applicable to
Hoster's sentencing, the district court did not clearly err in
denying a section 3E1.1 reduction.26
Conclusion
For the reasons stated above, Hoster's conviction is affirmed,
but his sentence is vacated and the cause is remanded to the
district court for resentencing not inconsistent herewith.
CONVICTION AFFIRMED; SENTENCE VACATED; CAUSE
REMANDED FOR RESENTENCING.
25
Hoster's original brief's passing statement, in connection
with a different matter, that he requested below, and that his
proper offense level should reflect, a reduction for acceptance
of responsibility, unaccompanied by argument or citation of
authority, and without any reference thereto in the statement of
issues or summary of the argument, plainly does not constitute
raising this issue.
26
The 1992 version of the Guidelines amends section 3E1.1 by,
inter alia, eliminating the phrase "a recognition and
affirmative" modifying acceptance of responsibility and by
substituting "for his offense" in lieu of "for his criminal
conduct." It also amends the comments to section 3E1.1 to
reflect that a defendant is not required to volunteer or
affirmatively admit relevant conduct beyond the offense of
conviction in order to be eligible for the reduction.
Application Note 1(a) to U.S.S.G. � 3E1.1 (effective November 1,
1992).
20