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REVISED 3/9/98
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-60221
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN H. O'BRYANT,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________________________________________________
March 3, 1998
Before DAVIS, JONES, and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
In this appeal O'Bryant challenges the district court's
sentence predicated on drug weight of "methamphetamine." O'Bryant
argues that the government did not establish that the drug was not
l-methamphetamine, which carries a much shorter sentence because it
is "a rather weak form of methamphetamine" that "is rarely seen and
is not made intentionally, but rather results from a botched
attempt to produce d-methamphetamine." U.S.S.G § 2D1.1 (Appendix
C, am. 518). We agree with the majority of courts that have placed

on the government the burden of proving the harsher sentence
required for the stronger drug, d-methamphetamine. We must
accordingly reverse and remand for resentencing.
Evidence from the government laboratory technician
established at trial that the substance possessed by O'Bryant for
purposes of distribution was "methamphetamine," without specifying
which variety of the drug. O'Bryant argued at sentencing that the
substance was not d-methamphetamine but his contention was also
unsupported by any evidence.
The government relies on this court's decision in United
States v. Acklen, 47 F.3d 739, 744 (5th Cir. 1995), wherein we
concluded that when the defendant raises the possibility that the
substance is l-methamphetamine rather than d-methamphetamine, the
government bears the burden of proving that the substance involved
was indeed d-methamphetamine only after the defendant has "tendered
some specific verified basis or evidence, beyond his mere naked
assertion or belief, that the drug was in fact l-methamphetamine."
This principle, the government asserts, applies the general rule in
guidelines cases that an objector to the sentence must prove by a
preponderance of the evidence the entitlement to an adjustment.
United States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990).
Acklen, however, is distinguishable as a § 2255 habeas
case in which the petitioner contended that his lawyer was
ineffective for failing to raise the l-meth issue at sentencing.
This court agreed that failure to do so could be deficient
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performance. It further held that "prejudice" would exist, and a
habeas hearing would be required, if the defendant could come up
with some proof that in fact his crime involved l-meth. In Acklen,
the requirement that defendant produce proof was solely for the
purpose of establishing the basis of a habeas evidentiary hearing
-- a hearing which should not be granted unless the defendant makes
the substantial showing of a denial of rights. While the
petitioner's mere say-so about l-meth would not be sufficient to
advance his habeas case, that rule does not necessarily apply to
the government's initial burden of proof at sentencing.
Not only is Acklen not controlling, but the district
court's reasoning that "methamphetamine" necessarily refers to the
more-common d-meth rather than l-meth, the only substance
separately defined for sentencing purposes, has been rejected by
the circuit courts as unpersuasive. See, e.g., United States v.
Patrick, 983 F.2d 206 (11th Cir. 1993); United States v. Trout, 68
F.3d 1276, 1281 (11th Cir. 1995); United States v. Dudden, 65 F.3d
1461, 1471-72 (9th Cir. 1995); United States v. McMullen, 86 F.3d
135 (8th Cir. 1996). These courts have noted that the government
generally bears the burden of proof of facts relevant for
sentencing. In United States v. Bogusz, 43 F.3d 82, 91-92 (3d Cir.
1994), the court held that the government may meet its burden by
presenting either chemical analysis, expert testimony, or
circumstantial evidence that d-methamphetamine was the subject of
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the crime. Perhaps such other evidence exists in this record, but
the district court did not refer to it, and neither he nor the
government relies upon any other evidence to support the finding.
Following this well-established body of caselaw on the
disparity between d-meth and l-meth for sentencing purposes, we
must conclude that the district court erred in relying for an
enhanced sentence on evidence that did not prove that O'Bryant
possessed d-meth. This case is again REVERSED and REMANDED for
resentencing consistent with this opinion.
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