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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 94-50536
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELMER DEAN ALLISON,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
(August 15, 1995)
Before WISDOM, GARWOOD and DAVIS Circuit Judges.
GARWOOD, Circuit Judge:
Appellant Elmer Dean Allison (Allison) appeals the district
court's denial of his motion to modify his sentence under 18 U.S.C.
з 3582(c)(2). We affirm.
Facts and Proceedings Below
On November 30, 1988, the Central Texas Narcotics Task Force
executed a search warrant at Allison's residence and property in
McGregor, Texas. During the search, the officers found an
operating methamphetamine laboratory, drug-making paraphernalia,

guns, and ammunition. The officers were accompanied by Deborah
Reagan (Reagan), a chemist with the Texas Department of Public
Safety. After Allison's arrest, he was released on an unsecured
bond, left the state, and failed to appear for a scheduled hearing.
Allison was arrested in Dayton, Ohio, on February 1, 1990. He was
returned to Texas for trial.
On August 1, 1990, a jury convicted Allison of conspiracy to
manufacture methamphetamine in violation of 21 U.S.C. зз 841(a)(1)
and 846 (Count One), possession of a firearm by a convicted felon
in violation of 18 U.S.C. зз 922(g)(1) and 924(c) (Count Two), use
of a firearm during and in relation to a drug trafficking offense
in violation of 18 U.S.C. з 924(c) (Count Three), and failure to
appear in court after having been released on bond in violation of
18 U.S.C. з 3146 (Count Four). The original Presentence Report
(PSR) calculated that methamphetamine in an amount equivalent to
12.23 kilograms of heroin had been seized from the laboratory at
Allison's residence.1 Because the conspiracy involved the
equivalent of more than 10 kilograms of heroin, the PSR determined
Allison's base offense level for Count One to be 36. See U.S.S.G.
з 2D1.1(c)(2). The PSR recommended a two-level increase in
Allison's offense level for obstruction of justice, bringing his
total offense level to 38. Given Allison's criminal history
category of V, his sentencing guideline range was 360 months to
life, but the statutory maximum for the drug conspiracy count was
1
The PSR listed the following amounts: 279.92 grams of
methamphetamine, 65 pounds of methamphetamine, 25 ounces of
methamphetamine, 297.09 grams of phenylacetone.
2

240 months. 21 U.S.C. з 841(b)(1)(c). The district court adopted
the factual findings and guideline application in the PSR and
sentenced Allison to the statutory maximum on Count One.2 We
affirmed Allison's convictions and sentence. United States v.
Allison, 953 F.2d 870 (5th Cir.), cert. denied, 112 S.Ct. 2319
(1992), modified on reh'g, 986 F.2d 896 (5th Cir. 1993).
Allison filed two motions under 28 U.S.C. з 2255 to vacate,
set aside, or correct his sentence. The district court denied both
motions. No appeal was taken. In its order denying Allison's
second section 2255 motion, the district court declined to address
Allison's challenge to his sentence based on Amendment 484 to
U.S.S.G. з 2D1.1, noting that such an argument was properly raised
in a motion for modification of sentence under 18 U.S.C. з
3582(c)(2). Allison then filed the instant section 3582(c)(2)
motion, arguing that, under Amendment 484, he could only be
sentenced on the basis of the 279.92 grams of methamphetamine in
his possession at the time of his arrest. The district court
appointed counsel for Allison, ordered the preparation of a second
addendum to the PSR, and scheduled an evidentiary hearing on the
motion. After the July 22, 1994, evidentiary hearing, the district
court denied the motion. Allison now appeals the district court's
denial of his з 3582(c)(2) motion.
2
The district court also sentenced Allison to a
concurrent 120-month term on Count Two, a consecutive 60-month
term on Count Three, and a consecutive 46-month term on Count
Four. In addition, the district court sentenced Allison to
three-year concurrent terms of supervised release on each count
and ordered him to pay a $1,000 fine and a $50 special assessment
on each count. Allison does not challenge these sentences.
3

Discussion
We review a district court's decision whether to reduce a
sentence under section 3582(c)(2) for abuse of discretion. United
States v. Pardue, 36 F.3d 429, 430 (5th Cir. 1994), cert. denied,
115 S.Ct. 1969 (1995); United States v. Shaw, 30 F.3d 26, 28 (5th
Cir. 1994). In exercising this discretion, the Guidelines instruct
the district court to "consider the sentence that it would have
imposed had the amendment(s) . . . been in effect at the time
the defendant was sentenced." U.S.S.G. з 1B1.10(b). We review a
district court's findings of fact under section 3582(c)(2) for
clear error. United States v. Mimms, 43 F.3d 217, 220 (5th Cir.
1995).
At the time of Allison's original sentencing, the drug
quantity table in section 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 substance."
Amendment 484 modified the application note to section 2D1.1:
"Mixture or substance [as used in this guideline] does
not include materials that must be separated from the
controlled substance before the controlled substance can
be used. . . If such material cannot readily be
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."
Section 1B1.10(c) provides that Amendment 484 should be applied
retroactively.
Allison argues that the district court abused its discretion
by refusing to modify his sentence based on Amendment 484,
4

asserting that under this amendment his sentence could only be
based on the 279.92 grams of methamphetamine that he possessed when
he was arrested.3 The second addendum to the PSR provided two
separate bases for denying Allison's section 3582(c)(2) motion.
First, it recalculated the drug amount attributable to Allison to
be 1,413.92 grams.4 With the two-point enhancement for obstruction
of justice, Allison's total offense level based on 1,413.92 grams
of methamphetamine was 34. The sentencing guideline range for a
defendant with a total offense level of 34 and a criminal history
category of V is 235 to 293 months. The statutory maximum sentence
for Count One is 240 months, making the guideline range 235 to 240
months. Because Allison's original sentence of 240 months on Count
3
Using the 279.92 gram amount and applying a two-point
enhancement for obstruction of justice, Allison calculates his
sentencing guideline range to be 140 to 175 months.
4
The second addendum to the PSR, citing Amendment 484,
agreed not to count the 42 pounds and the 25 ounces of liquid
mixtures in recalculating the drug amount. In addition, the
second addendum to the PSR concluded that the 23 pounds of ether
wash should not be counted as methamphetamine under Amendment
484. It also noted that 54.52 grams of methamphetamine powder
were seized at Allison's residence and that four reaction
mixtures (exhibits 5-8) were found during the search. Because
all liquid exhibits were destroyed after trial, there was no
evidence concerning the weights of exhibits 5, 6, and 8. The
weight of exhibit 7, however, was known to be 225.4 grams.
Moreover, in his section 3582(c)(2) motion, Allison acknowledged
that exhibit 7 was methamphetamine and that "[a]t the time of his
arrest [he] was in possession of 279.92 grams of
methamphetamine."
The second addendum to the PSR then considered exhibits 5,6,
and 8. (The original PSR did not consider these exhibits, and no
tests were ever performed on them). Relying on Reagan's
estimations, it calculated that exhibits 5, 6, and 8 would have
produced 2.5 pounds (or 1,134 grams) of methamphetamine. Based
on these amounts, the second addendum to the PSR calculated the
total drug amount to be 1,413.92 grams.
5

One was within this range, the district court declined to modify
Allison's sentence.
Alternatively, the second addendum to the PSR stated that the
large amount of wash found at Allison's residence, as well as the
supplies seized, were relevant to the size and capability of the
laboratory. The second addendum to the PSR noted that "the
Government intends to specifically address the capability of the
lab issue on the date of the resentencing hearing." At the
evidentiary hearing, Reagan testified that, based on her
observations during the search and on her substantial experience in
visiting over 180 clandestine methamphetamine laboratories, the
methamphetamine laboratory at Allison's residence had the
capability to produce 10 pounds or more of finished
methamphetamine. Allison presented no evidence at the evidentiary
hearing and thus never rebutted Reagan's testimony that the
laboratory had the capability to produce 10 pounds of finished
methamphetamine.5 In its July 22, 1994, order denying Allison's
section 3582(c)(2) motion, the district court specifically stated
5
At oral argument, Allison asserted that the second
addendum to the PSR stated that the laboratory had the capacity
to produce 2.5 pounds of methamphetamine. Allison confuses the
distinction between the amount of the controlled substance seized
and the size and capability of the laboratory. The PSR
determined that, based on Reagan's estimations, exhibits 5, 6,
and 8 would produce 2.5 pounds (or 1,134 grams) of
methamphetamine and used this amount in calculating the amount of
methamphetamine attributable to Allison. The 2.5 pound figure is
only the amount of the methamphetamine that would be produced by
cooking exhibits 5, 6, and 8. It is not, however, the capacity
of the laboratory, which Reagan testified was 10 pounds. The
second addendum to the PSR specifically stated that the
government would present evidence concerning the capability of
the laboratory at the evidentiary hearing.
6

its finding that Allison's "activities indicated a significant drug
lab operation."6
Allison bases his argument on appeal solely on the actual
amount of methamphetamine seized, ignoring the fact that the
capacity of the laboratory provides a separate, independent basis
upon which he can be sentenced. See U.S.S.G. з 2D1.1, Application
Note 12 ("Where there is no drug seizure or the amount seized does
not reflect the scale of the offense, the court shall approximate
the quantity of the controlled substance. In making this
determination, the court may consider, for example, the price
generally obtained for the controlled substance, financial or other
records, similar transactions in controlled substances by the
defendant, and the size or capability of any laboratory involved.")
(emphasis added); see also United States v. Smallwood, 920 F.2d
1231, 1237 (5th Cir.) (holding that this application note permits
the district court to base the defendant's sentence on the
production capability of a methamphetamine laboratory), cert.
denied, 111 S.Ct. 2870 (1991).
We note that Amendment 484 does not speak to the situation in
which the district court is sentencing the defendant based on the
size and capability of the laboratory involved; instead, the
6
We note that Allison told the police at the time of his
arrest that the methamphetamine laboratory had been "cooking
constantly for two weeks." In his objections to the original
PSR, Allison denied that he ever made such a statement. The
addendum to the PSR, however, concluded that Allison did in fact
make the statement. This statement provides further support for
Reagan's testimony that the laboratory had the capacity to
produce 10 pounds of methamphetamine.
7

amendment instructs the district court that the full weight of
mixtures cannot be attributed to the defendant as the amount
seized. If the district court is sentencing the defendant based on
the size and capability of the laboratory, it is the size and
production capacity of the laboratory, not the actual amount of
methamphetamine seized, that is the touchstone for sentencing
purposes. Because we hold that the district court could properly
sentence Allison based on the size and capability of the
laboratory, we do not consider the merits of Allison's challenge to
the district court's calculations of the amount of drugs
attributable to him using exhibits 5, 6, and 8.
Allison also argues that his case should be remanded to the
district court because it is unclear whether the methamphetamine
was d-methamphetamine or l-methamphetamine. There are arguably
three different forms of methamphetamine: l-methamphetamine, d-
methamphetamine, and dl-methamphetamine. United States v. Carroll,
6 F.3d 735, 743 (11th Cir. 1993), cert. denied, 114 S.Ct. 1234
(1994); cf., United States v. Bogusz, 43 F.3d 82, 89 n.10 (3d Cir.
1994) (recognizing only two forms of methamphetamine, because it
considered dl-methamphetamine as "merely being a combination of the
two forms"), cert. denied, 115 S.Ct. 1812 (1995). During her
testimony at the evidentiary hearing, Reagan testified that "[i]n
these reactions produced by phenylacetone, the methamphetamine
produced is `DL' methamphetamine, a combination of the two
isomers." Reagan then agreed with the statement of Allison's
counsel that dl-methamphetamine "means one-half `D' and one-half
8

`L.'" See Carroll, 6 F.3d at 743 (stating that "DL-methamphetamine
. . . is composed of 50% L-methamphetamine and 50% D-
methamphetamine"). Allison never disputes this definition of dl-
methamphetamine. We interpret Reagan's testimony to mean that
Allison's laboratory had the capacity to produce 10 pounds of dl-
methamphetamine.7 Because dl-methamphetamine is one-half d-
methamphetamine, the laboratory had the capacity to produce 5
pounds (or 2.268 kilograms) of d-methamphetamine. According to the
drug quantity table in the sentencing guidelines, 2.268 kilograms
of d-methamphetamine yields a base offense level of 36. U.S.S.G.
з 2D1.1. The two-point enhancement for obstruction of justice
brings the total offense level to 38. Given Allison's criminal
history category of V, his guideline range would be 360 months to
life. U.S.S.G. Chap. V. Because the guideline sentencing range
provides for a higher sentence than statutory maximum sentence of
240 months, the statutory maximum becomes the guideline sentence.
See U.S.S.G. з5G1.1(c)(1). Thus, based on the unrebutted testimony
that the methamphetamine laboratory had the capacity to produce 10
pounds of dl-methamphetamine (which necessarily includes 5 pounds
of d-methamphetamine), Allison would receive the mandatory minimum
sentence of 240 months, the same sentence he originally received.
The district court therefore did not abuse its discretion in
refusing to modify Allison's sentence.
7
We note that there is no evidence that the laboratory
produced purely l-methamphetamine. Moreover, we question why
anyone would set up a laboratory to produce l-methamphetamine,
given that it "produces little or no physiological effect when
ingested." Bogusz, 43 F.3d at 89.
9

Conclusion
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
10