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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 94-50186
Summary Calendar
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PATRICIA ANN SHAW,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________________________________
(August 10, 1994)
Before DUHÉ, WIENER, and STEWART, Circuit Judges.
PER CURIAM:
Patricia A. Shaw pleaded guilty in 1988 to manufacture of
methamphetamine, conspiracy to manufacture and possess with intent
to distribute methamphetamine, and unlawful possession of a machine
gun. Based on an offense level of 39 and a criminal history
category of I, Shaw's sentencing guidelines range was 262 to 327
months. The court departed downward because of Shaw's cooperation
and sentenced her to a prison term of 180 months on each of the
drug charges and a 40-month term on the weapons violation, to run
concurrently. We affirmed Shaw's sentence on direct appeal, United
States v. Shaw, 883 F.2d 10, 13 (5th Cir.) cert. denied, 493 U.S.
983 (1989), and affirmed the district court's denial of her motion

to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
Shaw subsequently moved pro se to modify the terms of her
sentence under 18 U.S.C. § 3582(c)(2). She argued that: (1)
byproducts of the drug manufacturing process that the Sentencing
Commission
subsequently
and
retroactively
excluded
from
consideration for sentencing purposes were used in calculating her
sentence, resulting in a sentence that should be reduced; and (2)
the district court assumed that she was responsible for one of two
types of methamphetamine listed in the guidelines, which resulted
in a greater offense level than the other type, without any
evidentiary support for which kind of methamphetamine had been
seized.
The district court denied Shaw's § 3582(c)(2) motion on the
grounds that even excluding the byproducts, she still possessed
enough methamphetamine to produce the same offense level she was
originally assigned and because her argument about the different
types of methamphetamine was not supported by the record. Shaw
appeals. We affirm.
Shaw argues that, because of a retroactive amendment to the
guidelines, the district court used the wrong version of the
guidelines in recalculating the amount of drugs for which she could
be punished.
Prior to November 1993, U.S.S.G. § 2D1.1 provided that
"[u]nless otherwise specified, the weight of a controlled substance
set forth in the table refers to the entire weight of any mixture
or substance containing a detectable amount of the controlled
2

substance." § 2D1.1(c) (footnote to drug quantity table) (Nov.
1993). Amendment 484 changed an application note to § 2D1.1 by
explaining that a mixture or substance generally "does not include
materials that must be separated from the controlled substance
before the controlled substance can be used." U.S.S.G. App. C,
amendment 484. An example of such a material that is excluded from
determining the weight of the mixture or substance is "waste water
from an illicit laboratory used to manufacture a controlled
substance." Id. Chemicals seized before the end of processing are
likewise excluded from consideration at sentencing. Id. (citing
United States v. Sherrod, 964 F.2d 1501 (5th Cir. 1992), cert.
denied, 113 S.Ct. 832 (1992), cert. dismissed, 113 S.Ct. 834
(1992), and cert. denied, 113 S.Ct. 1367, 1422 (1993)). The
Sentencing Commission gave this amendment retroactive effect.
U.S.S.G. § 1B1.10(d).
The district court ruled that even accepting Shaw's premise
that approximately 35 pounds of waste byproduct should not have
been considered in the drug quantity originally attributed to her,
the amount that remained, 11 kilograms of methamphetamine, still
corresponded to a base offense level of 36 under the 1993 guideline
in effect now and thus it was unnecessary to resentence her. Shaw
does not challenge this calculation, but argues that the court
should have used the 1987 guidelines after recalculating the drug
quantities. She contends that the court violated her right to be
free from ex post facto laws by using the 1993 guidelines.
The Supreme Court has held that a criminal law is ex post
3

facto if the law is "retrospective" and "disadvantage[s] the
offender affected by it" by altering "substantial personal rights."
Miller v. Florida, 482 U.S. 423, 430, (1987). In this case, the
court's reliance on the 1993 guidelines did not disadvantage Shaw
by altering "substantial personal rights." As the district court
noted it had already granted Shaw a significant departure in her
sentence, and under the circumstances she was not entitled to a
further reduction.
If the district court had originally used the 11 kilograms of
methamphetamine when applying the 1987 guidelines, Shaw's base
offense level would have been 34 instead of 36; her adjusted
offense level would have been 37 instead of 39; and her applicable
sentencing range would have been 210 to 262 months rather than 262
to 327 months.
Research discloses no opinion addressing the interaction of §
3582 and U.S.S.G. § 1B1.10. By the terms of the statute, however,
application of § 3582(c)(2) is discretionary: "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." The guideline is also written so
that its application is discretionary: "a reduction in the
defendant's term of imprisonment may be considered . . ." when an
applicable guideline range has subsequently been lowered by the
Sentencing Commission and given retroactive effect. U.S.S.G.
§ 1B1.10(a).
4

Other courts have treated the guideline and statute as
discretionary. United States v. Mueller, No. 93-1481, 1994 U.S.
App. LEXIS 15495 at *7 n.5 (10th Cir. June 22, 1994); United States
v. Connell, 960 F.2d 191, 197 (1st Cir. 1992); United States v.
Coohey, 11 F.3d 97, 101 (8th Cir. 1993); United States v. Wales,
977 F.2d 1323, 1327-28 (9th Cir. 1992); see United States v.
Marcello, 13 F.3d 752, 757-58 (3d Cir. 1994).
The guidelines instruct the court that "[i]n determining
whether a reduction in sentence is warranted for a defendant
eligible for consideration under . . . § 3582(c)(2), the court
should consider the sentence that it would have originally imposed
had the guidelines, as amended, been in effect at that time." §
1B1.10(b). In this case the district court responded to Shaw's
argument that she was entitled to a lower sentence by explaining:
Because the [c]ourt granted a downward
departure and sentenced Movant below the
guideline range, the [c]ourt sees no basis to
resentence Movant. Movant's adjusted offense
level provided for 262-327 months. Movant was
sentenced to 180 months. The [c]ourt was
extremely lenient in its downward departure
and would not resentence Movant below this.
Moreover, the facts of this case do not, under
any circumstances, justify a further downward
departure.
R. 2, 333. Thus, implicitly, the district court considered at
least some of the factors set forth in § 3553(a)1 and the
applicable policy statements issued by the Sentencing Commission.
1 These factors include: the nature and circumstances of the
offense and the history and characteristics of the defendant; the
need for the sentence imposed; and the kinds of sentences
available. 18 U.S.C. § 3553(a).
5

There is no indication that the court was under the mistaken
impression that it could not reduce Shaw's sentence further under
§ 3582(c)(2).
The absence of authority explaining how to interpret the
guideline and statute under consideration raise a number of
questions about how the two are to be utilized. It is not evident
what the court is supposed to do, in a case such as this, when
there has been a departure in the original sentencing decision.2
Additionally, it is not clear if the court is supposed to use the
guidelines in effect at the time of the § 3582(c)(2) motion or the
guidelines in effect at the time of the original sentencing
determination if the court decides to exercise its discretion and
lower the sentence.
We need not decide these issues, however, because the ultimate
determination on departure is discretionary and the district court
considered the factors delineated in § 3553(a) and the Sentencing
Commission's policy statements. Because the court determined after
that consideration, that it would not depart further under the
circumstances presented, the district court did not abuse its
discretion.
Shaw also argues that the district court erred in sentencing
her in the first instance by assuming that she had been
2 Section 1B1.10(c) provides that "a reduction in a defendant's
term of imprisonment may, in no event, exceed the number of months
by which the maximum of the guideline range applicable to the
defendant (from Chapter Five, Part A) has been lowered." However,
it does not explain what effect a departure has on this
determination.
6

manufacturing
regular
methamphetamine
rather
than
L-
methamphetamine. Under the 1987 guideline's drug equivalency
tables, L-methamphetamine was equivalent to 0.2 grams of cocaine
while regular methamphetamine was equivalent to 2 grams of cocaine.
§ 2D1.1.
A section § 3582(c)(2) motion is not the appropriate vehicle
for raising this issue because Appellant is not seeking retroactive
application of a subsequently lowered guideline range. She is
attempting to relitigate an issue which she admits she failed to
bring up at sentencing. The issue is not cognizable under §
3582(c)(2), which only applies to retroactive guideline amendments.
U.S.S.G. § 1B1.10(d); United States v. Miller, 903 F.2d 341, 349
(5th Cir. 1990).
AFFIRMED.
7