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United States Court of Appeals,
Fifth Circuit.
No. 94-40247
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
William Earl MIMMS, Defendant-Appellant.
Feb. 1, 1995.
Appeal from the United States District Court for the Eastern
District of Texas.
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:
William Earl Mimms (Mimms) appeals the amount that the
district court reduced his sentence pursuant to his 28 U.S.C. §
2255 motion. Finding the calculation of phenylacetone (P2P)
clearly erroneous, we vacate and remand.
I. PROCEDURAL HISTORY
William Earl Mimms pleaded guilty to conspiracy to manufacture
and distribute amphetamine in violation of 21 U.S.C. § 846. In
1991, pursuant to the sentencing guidelines, the district court
properly sentenced him to 151 months imprisonment. Mimms
apparently did not take a direct appeal. In 1993, Mimms filed this
action under 28 U.S.C. § 2255, seeking to have his sentence reduced
by applying an amendment to U.S.S.G. § 2D1.1(c), which adopted a
new method for calculating the quantity of drugs to be used in
determining the offense level and guideline range. The district
court held a hearing at which two expert chemists testified. After
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making new findings regarding the quantity of drugs involved, the
court reduced Mimms' sentence from 151 months to 115 months.
II. ANALYSIS
A. Treating the claim under 18 U.S.C. § 3582(c)(2).
In the court below, Mimms, proceeding pro se and in forma
pauperis, filed this action to reduce his sentence under § 2255.
"Relief under 28 U.S.C.A. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could
not have been raised on direct appeal and would, if condoned,
result in a complete miscarriage of justice." United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir.1992). Even if a defendant
alleges a constitutional error, he may not raise an issue for the
first time on collateral review without showing both cause for his
procedural default and actual prejudice resulting from the error.
United States v. Shaid, 937 F.2d 228, 232 (5th Cir.1991) (en banc),
cert. denied, --- U.S. ----, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992).
Mimms raises this issue for the first time on collateral
review. However, because the amendment upon which Mimms relies (§
2D1.1(c)) did not become effective until November 1, 1993, Mimms
could not have raised this claim on a direct appeal. Nevertheless,
we have held that this precise claim is not cognizable in a § 2255
action because the sentence was valid at the time of imposition,
and thus, "does not give rise to a complete miscarriage of
justice." United States v. Towe, 26 F.3d 614, 616 (5th Cir.1994).
However, Mimms could have brought this claim pursuant to 18
U.S.C. § 3582(c)(2). Towe, 26 F.3d at 616; United States v.
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Segler, 37 F.3d 1131, 1134 (5th Cir.1994). Section 3582(c)(2)
allows a court to reduce a defendant's sentence if the term of
imprisonment was based on a guideline range that subsequently has
been lowered and such a reduction would be consistent with the
applicable policy statements in the guidelines. Towe, 26 F.3d at
616. The applicable policy statement provides that the amendment
at issue may be applied retroactively. U.S.S.G. 1B1.10, p.s.
Under § 3582(c)(2), the district court has the discretion whether
to reduce the sentence. United States v. Shaw, 30 F.3d 26, 28-29
(5th Cir.1994).
Here, in response to the § 2255 motion, the government did not
argue that the claim was not cognizable, but rather acknowledged
that the amendment should be applied retroactively and moved for an
evidentiary hearing to determine the amount of drugs to be used in
the new sentence calculation. The district court, after an
evidentiary hearing, determined that Mimms was entitled to a
reduction under the amended § 2D1.1(c). Because the government had
no objection1 and a hearing was held to determine the reduction
pursuant to § 2D1.1(c), we will not put form over substance. The
trial court has already conducted the hearing that would be allowed
under § 3582(c)(2). For these reasons and in the interest of
judicial economy, we treat this action as a proceeding under §
3582(c)(2).
1Indeed, the government does not now contest the reduction
in the court below or argue that the claim was not cognizable.
To the contrary, it argues that the court below properly
calculated the new sentence pursuant to the amended guideline.
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B. Whether the district court's finding that Exhibit 2B contained
20% phenylacetone was clearly erroneous.
Mimms argues that the district court committed clear error by
misinterpreting the expert's testimony and by miscalculating the
quantity of drugs to be used to determine his new offense level and
new guideline sentence. Apparently, we have not expressly stated
the standard of review for findings of fact made in a proceeding
under § 3582(c)(2). We review the district court's factual
findings in a § 2255 proceeding for clear error. United States v.
Gipson, 985 F.2d 212, 214 (5th Cir.1993). Likewise, on direct
appeal, we review findings of fact made in regard to sentencing for
clear error. United States v. Humphrey, 7 F.3d 1186, 1189 (5th
Cir.1993) (citing 18 U.S.C. § 3742(e)). Accordingly, we now hold
that findings of fact made during a § 3582(c)(2) proceeding are
reviewed under the clearly erroneous standard. A finding of fact
will be set aside as clearly erroneous only if, although there is
evidence to support it, we are left with the definite and firm
conviction that a mistake has been committed. United States v.
Fitzhugh, 984 F.2d 143, 146 n. 12 (5th Cir.), cert. denied, ---
U.S. ----, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993).
Mimms' original sentence was based on the entire quantities of
the substances found to have a detectable amount of controlled
substance in accordance with the version of § 2D1.1(c) in effect in
1991. In 1993, § 2D1.1(c) was amended to provide that:
[m]ixture or substance does not include materials that must be
separated from the controlled substance before the controlled
substance can be used. Examples of such materials include ...
waste water from an illicit laboratory used to manufacture a
controlled substance. If such material cannot readily be
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separated from the mixture or substance that appropriately is
counted in the Drug Quantity Table, the court may use any
reasonable method to approximate the weight of the mixture or
substance to be counted.
§ 2D1.1(c), comment. (n.1); U.S.S.G.App. C, amend. 484.
For Mimms' original sentence, the court used the entire weight
of the mixture in Exhibit 2B, consisting of three containers
holding 32.40 pounds of a slurry-liquid substance containing a
detectable amount of P2P.2 In the current proceedings, based on the
expert testimony at the hearing, the court below found that Exhibit
2B, after deducting the weight of the containers, contained 20 per
cent P2P by weight, amounting to 6.18 pounds of P2P.
Mimms argues that Max Courtney, a chemist appointed by the
court for Mimms, testified that only 20 per cent of the 91.55 grams
of liquid poured from Exhibit 2B was P2P, as opposed to the court's
finding that 20 per cent (6.18 pounds) of the entire weight of
Exhibit 2B (31.9 pounds) was P2P. He asks this Court to find that
Exhibit 2B contained at most 91.55 grams of P2P and reduce his
sentence further accordingly. The government argues that the court
used a reasonable method to calculate the quantity of P2P. See §
2D1.1(c), comment. (n.1).
Courtney testified that he reviewed the report and notes of
Kenneth Evans, the chemist who performed the original analysis of
the substances. The exhibits were destroyed after sentencing and
were no longer available for Courtney to conduct his own analysis.
In regard to Exhibit 2B, Courtney testified that it consisted of
2There were other exhibits containing varying quantities of
drugs but those amounts are not in dispute on this appeal.
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three jugs containing white substance and a small amount of liquid.
The liquid portion was poured from all three containers, and the
crystalline portion remained in the jugs. The liquid portion
weighed 91.55 grams, and this liquid appeared to be from a reaction
mixture. Usually, the liquid from the reaction mixture runs about
20 per cent P2P. He could not determine the exact amount of P2P
because Evans did not perform a quantitative analysis. The worst
case scenario would be 91.55 grams of P2P.
Evans testified that he could not quantify the amount of P2P
in Exhibit 2B because the substance was slurry or slushy and that
he was unable to separate the liquid portion from the solid
material in it. He testified that he poured out a representative
sample of 91.55 grams to test and found a detectable amount of P2P.
He testified that it could be a trace amount, or it could be more.
However, he thought that there was less than 91.55 grams of P2P in
Exhibit 2B.
The district court obtained the 20 per cent figure from
Courtney's testimony. However, Courtney did not testify that 20
per cent of the entire weight of Exhibit 2B was P2P. The 20 per
cent figure referred to "the liquid from the reaction mixture."
The weight of the liquid from the reaction mixture was 91.55 grams.
Further, Courtney's interpretation of Evans' notes conflicts with
Evans' testimony about the nature of Exhibit 2B. Courtney
testified that his interpretation of Evans' notes was that the
sample of 91.55 grams which was tested was the liquid portion of
the exhibit and was not a representative sample. Both experts
6

agreed that P2P is a clear liquid, that the crystalline solid in
Exhibit 2B could not be P2P, and that Exhibit 2B also contained a
detectable amount of sodium acetate.
Purporting to rely upon Courtney's testimony, the district
court found that Exhibit 2B contained 6.18 pounds of P2P,
calculated by taking 20 per cent of the entire weight of the
exhibit minus the weight of the containers. The court stated that
reliance on the expert testimony of a chemist experienced in
analysis of such materials as to the quantity of P2P typically
found in such material is a reasonable method to approximate the
weight of the substance to be counted. This was obviously a
reference to the language in the commentary to § 2D1.1(c), which
provides that if materials such as waste water cannot be readily
separated from the mixture or substance to be counted, the court
may use any reasonable method to approximate the weight of the
mixture or substance to be counted. § 2D1.1(c), comment. (n.1).
Although reliance on expert testimony clearly is a reasonable
method, the court's finding in this instance apparently is based on
a misinterpretation of the expert's testimony.3 The testimony of
neither expert supports the court's finding that 20 per cent of the
entire amount of Exhibit 2B was P2P. Indeed, both experts opined
that Exhibit 2B contained less than 91.55 grams of P2P.
Accordingly, their testimony indicates that the actual amount of
3The government argues that this Court should not consider
Courtney's affidavit because it was not part of the record below.
Because the district court's error is clear from reading the
transcript of the hearing, the affidavit does not add anything to
the record.
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P2P in Exhibit 2B was significantly less than the 6.18 pounds found
by the court. A review of the entire evidence leaves one with the
definite and firm conviction that a mistake was made.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is VACATED and REMANDED to the district court for further factual
findings in accordance with this opinion.

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