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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 94-40122
Summary Calendar

UNITED STATES of AMERICA,
Plaintiff-Appellant,
versus
CANDACE JOHNSON O'LEARY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Louisiana

(September 28, 1994)
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:
Candace Johnson O'Leary (O'Leary) was convicted of one count
of conspiracy to manufacture methamphetamine and sentenced to
imprisonment for 151 months. This Court affirmed her conviction
on direct appeal, but vacated her sentence and remanded for
resentencing because of the district court's misapplication of
the sentencing guidelines. On remand, the district court revised
its calculation of the amount of drugs and resentenced O'Leary to
151 months' imprisonment. Finding that the district court
properly followed our mandate, we affirm.
I.
FACTS AND PROCEDURAL HISTORY
O'Leary was convicted of conspiracy to manufacture
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methamphetamine, a controlled substance. Authorities seized 51
pounds of phenylacetic acid (PA), which was used in calculating
O'Leary's base offense level. In the first presentence report
(PSR), the probation officer converted the 51 pounds of PA to
19.32 pounds of phenylacetone (P2P), then converted 19.32 pounds
of P2P to 3,645 kilograms of marijuana, which resulted in a base
offense level under the sentencing guidelines of 34.
In an unpublished opinion on direct appeal, this Court found
that the probation officer had "apparently used the Drug
Equivalency Table ("DET") to determine how much methamphetamine
could be manufactured from 51 pounds of PA." We found that the
use of the DET in calculating the base offense level was error
and remanded for resentencing. We further stated that "[t]he
sentence should be determined according to the formula enumerated
in [United States v. Hoster, 988 F.2d 1374, 1380-83 (5th Cir.
1993)]," and remanded for resentencing "consistent with" Hoster.
Upon resentencing, using a "standard" DEA formula for the
conversion of PA to methamphetamine, the probation officer
converted 51 pounds of PA to 20.043 pounds of P2P, which he then
converted to 19.32 pounds, or 8.76 kilograms, of methamphetamine.
8.76 kilograms of methamphetamine resulted in the same base
offense level of 34. The probation officer stated that he took
this Court's ruling and "the limited impact of U.S. v. Hoster"
into consideration in his recalculation. The court overruled
O'Leary's objections and adopted the revised calculations.
II.
CALCULATION OF BASE OFFENSE LEVEL ON REMAND
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O'Leary argues that the district court failed to recalculate
her base offense level in accordance with Hoster, 988 F.2d at
1381-82, as mandated by this Court. In our opinion remanding for
resentencing, we found that the district court erred by using the
DET to determine how much methamphetamine could be manufactured
from 51 pounds of PA. We stated that this calculation was an
impermissible use of the DET and remanded for resentencing
"according to the formula enumerated in Hoster."
In Hoster, this Court held that the district court plainly
erred by failing to consider the effect of U.S.S.G. � 2D1.11 on
the sentence of a defendant who had been convicted of possessing
amphetamine with the intent to distribute it. 988 F.2d at 1381-
83. Section 2D1.11(a) provides that the base offense level for
unlawfully possessing a listed chemical is set forth in the
Chemical Quantity Table. Hoster had agreed to purchase one pound
of amphetamine and 110 pounds of PA from an undercover agent.
Id. at 1376. PA is a "listed chemical." To calculate his
sentence, the district court considered the attempted possession
of the PA as relevant conduct. Id. at 1380. The PSR converted
the PA to phenylacetone, converted the amphetamine and
phenylacetone to marijuana using the � 2D1.1 DET, and then added
the two amounts to come up with a base offense level of 34. Id.
This Court determined that, pursuant to � 2D1.11, comment.
(n.3), when a defendant is convicted of an offense involving a
listed chemical and a related offense involving a controlled
substance, the appropriate method for calculating the defendant's
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sentence is to follow the grouping rules set out in � 3D1.2(d) on
the basis of the aggregate quantity of the substances involved.
Id. at 1382. Applying this method resulted in a six-level
reduction for the defendant. Id. at 1382-83. We then concluded
that the district court plainly erred by not taking � 2D1.11 into
account. Id. at 1383.
In the case at bar, on remand for resentencing, the district
court did not expressly mention � 2D1.11. Section 2D1.11(c)(1),
however, cross references � 2D1.1 as the correct guideline when
the offense involves the manufacturing of controlled substances.
That section provides that if "the offense involved unlawfully
manufacturing a controlled substance, or attempting to
manufacture a controlled substance unlawfully, apply � 2D1.1
. . . if the resulting offense level is greater than that
determined above." Commentary note 2 explains this subsection to
mean, with respect to "attempt," that the defendant "completed
the actions sufficient to constitute the offense of . . .
attempting to manufacture a controlled substance unlawfully."
O'Leary's offense of conviction was conspiracy to
manufacture methamphetamine, rather than manufacturing or
attempting to manufacture methamphetamine. In United States v.
Bellazerius, however, this Court recently stated that conspiracy
to manufacture methamphetamine is an offense encompassed by
� 2D1.11(c)(1). 24 F.3d 698, 703-04 (5th Cir. 1994). Rejecting
an argument similar to O'Leary's, we concluded that the district
court did not err by using the Drug Quantity Table found in �
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2D1.1 rather than the Chemical Quantity Table for precursor
chemicals found in � 2D1.11 to sentence two defendants convicted
of conspiracy to manufacture methamphetamine. Id.
Additionally, we cited United States v. Myers, 993 F.2d 713
(9th Cir. 1993), in support of the conclusion reached in
Bellazerius. 24 F.3d at 704 n.18. In Myers, the Ninth Circuit
noted that Appendix A listed � 2D1.1 as the guideline applicable
to 21 U.S.C. � 841(a), and that � 2D1.11 cross-referenced � 2D1.1
as the correct guideline when the offense involves the
manufacturing of controlled substances. Myers, 993 F.2d at 716.
The Ninth Circuit concluded that because the defendant pleaded
guilty to conspiracy to manufacture methamphetamine with intent
to distribute, there was "no reason the offense of his conviction
should not determine the guideline used to calculate his
sentence." Id.
O'Leary argues that "Bellazerius is inapplicable because Ms.
O'Leary has never asked, as did those defendants, that her [base
offense level] be based solely on � 2D1.11. Rather, she asks
only that that provision's effect on � 2D1.1 be taken into
account as is specifically required by this Court's mandate to
follow Hoster." O'Leary further argues that if Bellazerius is
read to conflict with this Court's mandate, the law of the case
doctrine controls.
However, regardless of our decision in Bellazerius, O'Leary
"completed the actions sufficient to constitute . . . attempting
to manufacture a controlled substance unlawfully." See � 2D1.11,
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comment. (n.2). O'Leary attempted a "cook," an attempt to
produce methamphetamine from PA, in March 1989, supplied
materials necessary for a cook, and acted as a go-fer, user,
transporter, and helper with cooks. A hand-written formula was
also discovered in O'Leary's handwriting. See United States v.
Acuna, 9 F.3d 1442, 1447-48 (9th Cir. 1993) (evidence showed
defendant "intended to manufacture methamphetamine and . . . took
a substantial step towards the completion of that objective").
O'Leary's offense of conviction was conspiracy to
manufacture methamphetamine, an offense encompassed by the cross-
referencing provision in � 2D1.11(c)(1), and her base offense
level of 34 under � 2D1.1 was greater than that under � 2D1.11
(possession of 20 kilograms or more of PA yields a base offense
level of 28). Thus, � 2D1.1 was the applicable provision.
Further, as instructed, the district court considered Hoster and
did not use the DET to determine how much methamphetamine could
be manufactured from 51 pounds of PA. Although the district
court did not specifically state that it used the cross-
referencing provision in � 2D1.11(c)(1) to arrive at its
application of � 2D1.1, the court reached the correct result by
applying � 2D1.1. As the court recognized, Hoster's effect on
O'Leary's sentencing was limited by the fact that, unlike Hoster,
O'Leary was convicted of conspiracy to manufacture a controlled
substance. Thus, the district court's resentencing of O'Leary
was not inconsistent with Hoster or our instructions on remand.
III. CONCLUSION
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