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United States Court of Appeals,
Fifth Circuit.
No. 94-50081
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Edward TOWE, Defendant-Appellant.
July 27, 1994.
Appeal from the United States District Court for the Western
District of Texas.
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:
In 1990, Robert Edward Towe pleaded guilty to conspiracy to
manufacture amphetamine in violation of 21 U.S.C. § 846. The
district court sentenced Towe to 108 months of imprisonment and
five years of supervised release. Towe appealed his sentence,
arguing, inter alia, that the district court erred by grounding his
base offense level on the amount of precursor chemicals actually
seized by the police, rather than on the amount of amphetamine that
the seized chemicals could have produced. This Court found Towe's
argument without merit and affirmed the district court's sentence.
In 1992, Towe filed a motion under 28 U.S.C. § 2255, arguing
that the district court erred by not reducing his base offense
level for acceptance of responsibility. Concluding that Towe's
claim "is not cognizable under the limited scope of relief
available under § 2255," this Court affirmed the district court's
denial of Towe's motion.
1

In the instant § 2255 motion, Towe attacks his sentence on
three grounds. He argues that: (1) he was entitled to be
re-sentenced under the retroactive amendment to U.S.S.G. § 2D1.1
involving waste materials used in manufacturing amphetamine; (2)
he was entitled to be re-sentenced under the retroactive amendment
to § 2D1.1 involving "reverse sting operations"; and (3) the
district court erred by not reducing his base offense level for
acceptance of responsibility.1 Following the Government's response
to his motion, Towe moved to amend his motion to assert only his
first argument.
The district court addressed all three of Towe's arguments.
The court concluded that Towe's first two issues were without merit
and that Towe's third issue already had been raised and rejected.
The court also noted that "Movant demonstrates a tendency to abuse
the writ in requesting the same relief again." Towe's motion was
dismissed with prejudice. Subsequently, the district court denied
as moot Towe's motion to amend his § 2255 motion. This appeal
followed.
OPINION
The Government argues that Towe's claim is not cognizable in
this § 2255 proceeding because a district court's technical
application of the Guidelines does not give rise to a
constitutional issue. Relief under § 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
1Towe does not raise his original issues 2 and 3 on appeal.
2

would, if condoned, result in a complete miscarriage of justice.
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992).
Nonconstitutional claims that could have been raised on direct
appeal, but were not, may not be asserted in a collateral
proceeding.
Although Towe's claim that his sentence was calculated
incorrectly is not of constitutional dimension, Towe's challenge to
his sentence based on the amended § 2D1.1 provision could not have
been raised on direct appeal because he was sentenced in 1990, his
direct appeal was decided in 1991, and the amended guideline did
not go into effect until November 1, 1993. U.S.S.G., App.C, Amd.
484. Therefore, the issue is whether Towe has been subjected to a
complete miscarriage of justice by the district court's denial of
his § 2255 motion. Vaughn, 955 F.2d at 368. Towe's sentence was
valid at the time it was rendered. The district court's failure to
apply a guideline that was not effective at the time of sentencing
does not give rise to a complete miscarriage of justice.
However, in a motion to amend his § 2255 motion, Towe
requested that his motion be treated as a motion pursuant to 18
U.S.C. § 3582(c)(2). Under § 3582(c)(2), the court may reduce a
defendant's term of imprisonment if such a reduction is consistent
with the applicable policy statements issued in the Sentencing
Guidelines. When a defendant is serving a term of imprisonment,
and the Guideline range applicable to that defendant has been
lowered as a result of a retroactive amendment, such as Amendment
484, U.S.S.G.App. C, a reduction in the defendant's term of
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imprisonment may be considered under 18 U.S.C. § 3582(c)(2). See
U.S.S.G. § 1B1.10, p.s. The district court should have addressed
Towe's motion to amend and thus addressed Towe's motion as a motion
to modify his sentence pursuant to § 3582(c)(2). See Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)
(the denial of a motion to amend without substantial reason
appearing for the denial is not an exercise of discretion).
Towe argues that Amendment 484, which modified application
note 1 to § 2D1.1, requires that he be re-sentenced. He argues
that, although Amendment 484 was not effective until November 1,
1993, it is designated to have retroactive effect. The Guidelines
provided that Amendment 484 be applied retroactively; therefore,
it would apply to Towe's 1990 sentence. See § 1B1.10, p.s.
Unless otherwise specified, the weight of a controlled
substance set forth in the drug equivalency table refers to the
entire weight of any mixture or substance containing a detectable
amount of a controlled substance. § 2D1.1(c). Prior to 1993, §
2D1.1(c), comment. (n. 1.) provided that a "mixture or substance"
had the same meaning as that in 21 U.S.C. § 841 (prohibiting the
manufacture of controlled substance). This Court interpreted
application note 1 to allow the calculation of a base offense by
using the weight of a mixture containing a small amount of
controlled substance. See United States v. Sherrod, 964 F.2d 1501,
1509 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 832,
121 L.Ed.2d 701 (1992), --- U.S. ----, 113 S.Ct. 1367, 122 L.Ed.2d
745 (1993), --- U.S. ----, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993),
4

cert. dismissed, --- U.S. ----, 113 S.Ct. 834, 122 L.Ed.2d 111
(1992).
Amendment 484 altered application note 1 to provide that a
"[m]ixture or substance does not include materials that must be
separated from the controlled substance before the controlled
substance can be used." § 2D1.1, comment, n. (1). Noting that the
amendment addressed an inter-circuit conflict regarding the meaning
of the term "mixture or substance," as used in § 2D1.1, the
Guidelines indicate that waste products which are used to remove
impurities or form the precipitate of a controlled substance are
not to be used in calculating the base offense level. Amendment
484, U.S.S.G. App. C (1993) (citing Sherrod, 964 F.2d at 1509).
Towe argues that he was "arrested in an illicit drug
laboratory with a flask containing 28.26 pounds of a mixture or
substance containing 12.00 percent phenylacetone (1,538.2438
grams). The other 88.00 percent of the mixture or substance was
waste water and waste by-products of the manufacturing process
(weighing 24.8688 pounds) that were not controlled or marketable
substances[.]" The Government argues that Amendment 484 does not
apply to the facts of Towe's case because, although chemicals such
as formic acid, formaldehyde, and hydrochloric acid were present
"in this case," they were not included in determining the quantity
of drugs possessed. The district court agreed, concluding that the
28.26 pounds of substance upon which Towe's offense level was based
did not contain any additive chemicals. However, this Court's
opinion addressing Towe's direct appeal supports Towe's claim that
5

the total weight of the substance was considered, despite the
presence of waste materials. Although this Court stated that
Towe's offense level was based "on the 28.26 pounds of
phenylacetone actually seized," this Court cited authority holding
that "in most cases where a compound containing a detectable amount
of controlled substance has been seized, the total weight of this
compound will be considered." See United States v. McKeever, 906
F.2d 129, 133 (5th Cir.1990), cert. denied, 498 U.S. 1070, 111
S.Ct. 790, 112 L.Ed.2d 852 (1991).
This Court has not yet interpreted the application of
Amendment 484. Since the Amendment is applicable to the present
case, Towe's sentence would not be proper if based on an amount of
mixture which contained waste products. See § 2D1.1, comment. (n.
1). However, it is unclear whether Towe was sentenced based on
28.26 pounds of phenylacetone, or based on 28.26 pounds of a
substance containing only 12.00 percent phenylacetone. The
presentence report (PSR) states simply that the total amount of
drugs consisted of 28.26 pounds of phenylacetone, and the
transcript of the sentencing hearing is contradictory.
Under these circumstances, we believe justice will be best
served by vacating the district court's judgment and remanding the
case with directions to grant the motion to amend and thus to
address the § 3582(c)(2) motion. The district court should then
determine the actual amount of controlled substance upon which the
sentence was based in light of the application of Amendment 484.
The order dismissing Towe's § 2255 motion is VACATED, and the
6