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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-30208
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD PARDUE,

Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(October 17, 1994)
Before DUHИ, WIENER and STEWART, Circuit Judges.
PER CURIAM:

In this sentencing guidelines appeal, Defendant-Appellant
Donald Pardue complains of the district court's denial of his
motion for modification of sentence pursuant to 18 U.S.C.
ї 3582(c)(2). He asserts that the district court abused its
discretion in denying his modification motion that was based on a
post-sentencing amendment to the guidelines affecting the
determination of the quantity of Lysergic Acid Diethylamide (LSD)

to be used in calculating sentences. For the reasons set forth
below, we affirm.
I
FACTS AND PROCEEDINGS
Pardue pleaded guilty to conspiracy to possess with intent to
distribute approximately 16 grams of LSD in violation of 21 U.S.C.
її 841(a)(1) and 846, and was sentenced to 120 months'
imprisonment. He filed a motion for modification of his sentence
pursuant to 18 U.S.C. ї 3582(c)(2), requesting that his sentence be
reduced in light of an amendment to U.S.S.G. ї 2D1.1(c). The
subject amendment incorporated a new method for calculating the
quantity of LSD to be used in determining a defendant's offense
level and guideline range. The district court initially granted
the motion and referred the case to the Probation Office to
recalculate the sentencing range in accordance with the revised
guideline provision; however, the court then changed its ruling and
denied the motion after the Probation Office reported that the new
guideline could not be applied retroactively to Pardue because he
was subject to a statutory mandatory minimum incarceration of ten
years. Pardue timely appealed the district court's denial of his
motion.
II
ANALYSIS
Pardue argues that (1) the district court committed reversible
error when it held that the mandatory minimum contained in
21 U.S.C. ї 841 overrode the amendment to ї 2D1.1 of the
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Guidelines; (2) this ruling violated his right to due process;
(3) the rule of lenity should govern because the provisions of
ї 2D1.1 and ї 841 are ambiguous; and (4) the mandatory minimum of
ї 841 constitutes cruel and unusual punishment in light of the
amendment to ї 2D1.1.
Section 3582(c)(2) provides that
in the case of a defendant who has been
sentenced to a term of imprisonment based on a
sentencing range that has subsequently been
lowered . . . the court may reduce the term of
imprisonment, after considering the factors
set forth in section 3553(a) to the extent
that they are applicable, if such a reduction
is
consistent with applicable policy
statements
issued
by
the
Sentencing
Commission.
18 U.S.C. ї 3582(c)(2). The decision to reduce a sentence under
ї 3582(c)(2) is discretionary. United States v. Shaw, 30 F.3d 26
(5th Cir. Aug. 10, 1994, No. 94-50186), slip p. 5976, 1994
WL 416465. We therefore review challenges for abuse of discretion.
A ї 3582(c)(2) motion applies only to guideline amendments
that operate retroactively, as listed in the policy statement,
U.S.S.G. ї 1B1.10(d). United States v. Miller, 903 F.2d 341, 349
(5th Cir. 1990). The amendment to ї 2D1.1(c) regarding the
calculation of the quantity of LSD (Amendment 488) is one of the
guideline amendments that operates retroactively according to that
policy statement. U.S.S.G. ї 1B1.10(d), p.s.
The amendment to ї 2D1.1 provides that
[i]n the case of LSD on a carrier medium
(e.g., a sheet of blotter paper), do not use
the weight of the LSD/carrier medium.
Instead, treat each dose of LSD on the carrier
medium as equal to 0.4 mg of LSD for the
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purposes of the Drug Quantity Table.
U.S.S.G. ї 2D1.1(c); U.S.S.G. App. C, amend. 488. Pardue argues
that the district court should have reduced his sentence to fall
within the guideline range produced by using this method of
calculation. The district court held that it could not reduce
Pardue's sentenceSQwhich, at 120 months, was already at the
mandatory minimum of ten yearsSQbelow the mandatory minimum.
This is an issue of first impression in our circuit. We
conclude that the district court's ruling is correct based on a
logical reading of the policy statement to ї 2D1.1(c). This policy
statement provides that the new approach to calculating the amount
of LSD "does not override the applicability of `mixture or
substance' for the purpose of applying any mandatory minimum
sentence (see Chapman; ї 5G1.1(b))." U.S.S.G. ї 2D1.1, comment.
(backg'd.). The Chapman citation refers to Chapman v. United
States, 500 U.S. 453, 111 S.Ct. 1919, 1925, 114 L.Ed.2d 524 (1991),
in which the Supreme Court held that the term "mixture or
substance" in 21 U.S.C. ї 841(b) required the weight of the carrier
medium for LSD to be included for purposes of determining the
mandatory minimum sentence. The citation to ї 5G1.1(b) refers to
the sentencing guideline provision which states that, if the
statutorily required mandatory minimum is greater than the upper
end of the guideline range, the mandatory minimum becomes the
guideline sentence.
A common sense interpretation of this policy statement leads
to the inescapable conclusion that the mandatory minimum of ї 841,
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calculated according to Chapman, overrides the retroactive
application of the new guideline. We take additional comfort in
the fact that two other circuits have reached this same conclusion.
See United States v. Dimeo, 28 F.3d 240 (1st Cir. 1994); United
States v. Boot, 25 F.3d 52, 53 (1st Cir. 1994); United States v.
Mueller, 27 F.3d 494, 495-97 (10th Cir. 1994).
Pardue's other arguments, advancing issues of due process,
cruel and unusual punishment, and the application of the rule of
lenity, are raised for the first time on appeal. We need not and
therefore do not consider these issues first raised on appeal, but
note in passing that similar arguments were considered and rejected
by the two circuits cited above.
AFFIRMED.
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