                    UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                               No. 95-30490
                             Summary Calendar


                      UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,


                                     VERSUS


                        ROBERT JOSEPH KNIGHT,

                                                        Defendant-Appellant.




             Appeal from the United States District Court
                 For the Western District of Louisiana
                                  (93-CA-2148)
                             February 13, 1996


Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:1
     Appellant Robert Joseph Knight ("Knight") appeals the district

court's denial of his 28 U.S.C. § 2255 motion.               We affirm.

                FACTS AND DISTRICT COURT PROCEEDINGS

     Officers    executing    a    search     warrant   at   a   house   outside

Lafayette,     Louisiana,    found     a    chemical     distillation      unit,

glassware, chemistry textbooks, handwritten "recipes" for


     1
      Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
phenylacetone and methamphetamine, and chloracetone (a precursor

chemical to phenylacetone).             Knight was arrested during the raid.

Knight's        briefcase   contained          drug    paraphernalia     and     more

handwritten instructions for manufacturing methamphetamine.                       No

methamphetamine was found.

     Knight, Juan Lee Lopez, Leslie McBride, and Stephen Sheets

were charged with conspiracy to manufacture phenylacetone and

methamphetamine and possession of a firearm in relation to a

narcotics offense. McBride and Sheets pleaded guilty to conspiracy

and testified against Knight and Lopez.

     McBride       and   Sheets   testified       that   Knight    and   Lopez   had

solicited McBride (who had some knowledge of chemistry) to "cook"

approximately six ounces of methamphetamine.                   Sheets agreed to

allow McBride to "cook" the substance at Sheets' house.                        Lopez

provided    the     money   to    purchase       the   necessary   chemicals     and

glassware and agreed to distribute the finished methamphetamine.

Knight provided the "recipe" for making methamphetamine.

     Government       chemist     Leo    Polte    testified   that     the   illicit

laboratory had the capacity to manufacture approximately 150 grams

or six ounces of methamphetamine.2               The jury convicted Knight and

Lopez      of     conspiracy       to     manufacture       phenylacetone        and

methamphetamine.

     The probation officer calculated that Knight's base offense

level was 26 because the offense involved more than 100 but less

than 400 grams of methamphetamine.                Knight objected based on the

     2
         Six ounces is actually 186.6 grams.

                                           2
fact that no drugs had been seized.   The district court held that

it was proper to estimate the quantity of drugs involved in the

conspiracy based on the capacity of the laboratory. The court then

accepted the probation officer's determination that Knight's base

offense level was 26.     The district court granted a two-level

reduction for acceptance of responsibility and imposed a 77-month

sentence.

     On direct appeal, this court affirmed the district court's

determination of the quantity of drugs involved in the offense.   We

affirmed the convictions but vacated Knight's sentence and remanded

for a determination of whether he was entitled to a reduction in

offense level for acceptance of responsibility.     On remand, the

district court found that Knight had not accepted responsibility

and sentenced Knight to a term of 92-months' imprisonment.    This

court affirmed the sentence.

     Knight filed an amended 28 U.S.C. § 2255 motion alleging (1)

that counsel was ineffective at sentencing for failing to challenge

the Government's proof of the type of methamphetamine involved in

the offense; (2) that his sentence violates principles of due

process because the Government failed to prove that the conspiracy

involved d-methamphetamine as opposed to l-methamphetamine; and (3)

that he is entitled to be resentenced based upon the retroactive

application of an amendment to the application notes to U.S.S.G. §

2D1.1.

     A magistrate judge determined that Knight was not entitled to

§ 2255 relief and recommended that the district court deny the


                                3
motion.    In untimely objections to the magistrate judge's report,

Knight argued, inter alia, that the magistrate judge had erred by

rejecting    his     argument      that    counsel       had    been   ineffective    at

sentencing for failing to object to the lack of proof that the

conspiracy involved d-methamphetamine. After an independent review

of   the   record,    the    district      court       accepted      the   findings   and

conclusions of the magistrate judge and denied the § 2255 motion.

The court did not address Knight's objections to the magistrate

judge's recommendation.

           RETROACTIVE APPLICATION OF GUIDELINE AMENDMENTS

      Knight   argues       that   he     is       entitled    to   have   his   sentence

recomputed based upon the retroactive application of Amendment 484

to § 2D1.1.    Amendment 484 became effective November 1, 1993, and

it applies retroactively.           See United States v. Towe, 26 F.3d 614,

616 (5th Cir. 1994); U.S.S.G. § 1B1.10(c).                     Knight was resentenced

in August 1992, and this court affirmed his sentence in June 1993.

Because Amendment 484 had not become effective when Knight was

resentenced, Knight should have raised this argument in a motion

pursuant to 18 U.S.C. § 3582(c)(2), rather than a § 2255 motion.

See Towe, 26 F.3d at 616.               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.          Id.    The district court recognized that a §

2255 motion was not the proper vehicle to raise this issue but,




                                               4
"for the sake of completeness," it addressed and rejected the

merits of Knight's argument.

       In the interest of judicial economy and because the Government

does not object and the argument is obviously without merit, we

will   proceed    as   if   Knight    had      raised    this    argument   in   a   §

3582(c)(2) motion. See United States v. Mimms, 43 F.3d 217, 219-20

(5th Cir. 1995).

       Reduction of a defendant's sentence pursuant to § 3582(c)(2)

is discretionary, and this court reviews a district court's refusal

to lower a defendant's sentence for abuse of discretion.                     United

States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).                      The district

court's factual findings in a § 3582(c)(2) proceeding are reviewed

for clear error.       Mimms, 43 F.3d at 220.

       Amendment 484 provides that waste materials should be excluded

in determining the quantity of a controlled substance on which the

defendant's sentence is based.             See United States v. Allison, 63

F.3d 350, 351-52 (5th Cir.), cert. denied, 116 S. Ct. 405 (1995).

Although Amendment 484 applies retroactively, it is irrelevant to

Knight's sentence because his sentence was based, not on an actual

quantity of drugs which may have contained waste materials, but on

the estimated production capacity of the illicit laboratory.                     Id.

at 352-53.

         STANDARD OF REVIEW OF DENIAL OF SECTION 2255 MOTION

       Section 2255 identifies four specific grounds upon which a

federal prisoner may move to vacate, set aside, or correct his

sentence:        the   sentence      was       imposed   in     violation   of   the


                                           5
Constitution or laws of the United States; the court was without

jurisdiction to impose the sentence; the sentence exceeds the

statutory maximum sentence; or the sentence is "otherwise subject

to collateral attack."          28 U.S.C. § 2255; see United States v.

Cates, 952 F.2d 149, 151 (5th Cir.), cert. denied, 504 U.S. 962

(1992).

       A defendant who has been convicted and has exhausted or waived

his right to appeal is presumed to have been "fairly and finally

convicted."     United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.

1991) (en banc) (citation omitted), cert. denied, 502 U.S. 1076

(1992).     Therefore, a defendant who raises a constitutional or

jurisdictional issue for the first time on collateral review must

show   "both    `cause'   for    his   procedural   default,   and   `actual

prejudice' resulting from the error."         Id. at 232 (quoting Frady,

456 U.S. at 168).     The only exception to the cause and prejudice

test is the "extraordinary case . . . in which a constitutional

violation has probably resulted in the conviction of one who is

actually innocent."       Id. at 232 (internal quotations and citation

omitted).      The Government must invoke the procedural bar in the

district court, however.         United States v. Drobny, 955 F.2d 990,

994-95 (5th Cir. 1992).          The Government argued in the district

court that Knight's motion is procedurally barred.

       In reviewing a district court's denial of a § 2255 motion, we

review the district court's factual findings for clear error and we

review questions of law de novo.        United States v. Seyfert, 67 F.3d

544, 546 (5th Cir. 1995).


                                       6
                                 DUE PROCESS

      Knight contends that his sentence violates principles of due

process because the Government failed to prove that the object of

the       conspiracy     was     d-methamphetamine        rather      than    l-

methamphetamine.3        Knight could have, but did not raise this

argument on direct appeal.         Although he couches his argument as a

due process claim, this court has determined that it is not an

issue of constitutional or jurisdictional magnitude and, thus, may

not be raised for the first time in a § 2255 motion.              United States

v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995); United States v.

Acklen, 47 F.3d 739, 742 n.4 (5th Cir. 1995).

      Because Knight's due process claim does not fall within one of

the categories of claims cognizable on federal habeas corpus, we

need not reach the cause and prejudice analysis.

                      INEFFECTIVE ASSISTANCE OF COUNSEL

      Knight contends that his counsel was ineffective at sentencing

for failing to raise the issue of whether he should be sentenced

based on d-methamphetamine or l-methamphetamine.                   The district

court denied relief on the dual grounds that Knight had failed to

establish      that     his    counsel's    performance     was     objectively

unreasonable or that he would have received a lesser sentence if

counsel had questioned the type of methamphetamine involved in the

offense.        The    court    discussed    the   difference       between   d-


      3
       For sentencing purposes, the guidelines treat offenses
involving d-methamphetamine much more severely than those
involving l-methamphetamine. See United States v. Bogusz, 43
F.3d 82, 88 (3d Cir. 1994), cert. denied, 115 S. Ct. 1812 (1995).

                                       7
methamphetamine and l-methamphetamine, citing United States v.

Lande, 40 F.3d 329 (10th Cir. 1994), cert. denied, 115 S. Ct. 1988

(1995).    The Tenth Circuit concluded that clandestine laboratories

are generally designed to produce d-methamphetamine because l-

methamphetamine has little or no physiological effect.              The court

determined that there was "no reasonable probability that the

methamphetamine laboratory in question was in the business of

manufacturing an inert drug with little or no street value."

     This court has noted that l-methamphetamine "`produces little

or no physiological effect when ingested,'" Acklen, 47 F.3d at 742,

(quoting United States v. Bogusz, 43 F.3d 82, 98 (3d Cir. 1994)),

and "question[ed] why anyone would set up a laboratory to produce

l-methamphetamine," Allison, 63 F.3d at 353 n.7.                 However, in

Acklen, we held that counsel's failure at sentencing to challenge

the type    of   methamphetamine   involved   in    the   offense    was   not

objectively reasonable as a matter of law.         Acklen, 47 F.3d at 743.

Drugs were seized from Acklen's laboratory, and Acklen alleged that

a lab report not introduced into evidence identified the relevant

isomer of methamphetamine.     Id. at 741-42. The court stated that

"merely reading the commentary" to the sentencing guidelines would

have alerted counsel to the fact that this issue could have a

"potentially significant impact on sentencing."4           Id.    In Acklen,

the court remanded to give the defendant an opportunity to "tender


     4
      When both Acklen and Knight were sentenced, this court had
not yet addressed the issue in a published opinion, but at least
one other circuit had done so. See Acklen, 47 F.3d at 741, 743 &
n.7.

                                    8
some specific, verified basis or evidence, beyond his mere naked

assertion, that the drug was in fact l-methamphetamine."                              Id. at

744.   The court stated that such a showing could entitle Acklen to

discovery and an evidentiary hearing on his ineffective-assistance-

of-counsel claim.       Id.

          No    methamphetamine      was       actually    seized      in      this    case;

instead, the court sentenced Knight based on a chemist's estimate

of the production capacity of his laboratory which did not specify

which type of methamphetamine the laboratory would have produced.

       While Knight has stated a cognizable constitutional claim for

ineffective assistance of counsel, we must affirm the denial of

Knight's § 2255 motion because Knight cannot establish that he was

prejudiced by counsel's failure to object to the lack of proof of

the type of methamphetamine involved. See United States v. Walker,

68 F.3d 931, 933-34 (5th Cir. 1995) (§ 2255 case affirmed on the

ground that the defendant was unable as a matter of law to show

prejudice      from   counsel's     failure         to   object   to      an      allegedly

incorrect laboratory report).          The district court's determination

that it was implicit that the chemist's testimony referred to d-

methamphetamine       because     there        is   no   reason     for      an     illicit

laboratory      to    manufacture    l-methamphetamine            is        not     clearly

erroneous.      See Allison, 63 F.3d at 353 n.7; Acklen, 47 F.3d at

742; see also Lande, 40 F.3d at 330 (citing expert testimony that

in 26 combined years of experience, chemists had never encountered

a   clandestine        laboratory     designed            to   produce            pure    l-

methamphetamine).        Therefore, counsel's failure to raise the d-


                                           9
methamphetamine/l-methamphetamine   sentencing   issue   did   not

prejudice Knight.



                           CONCLUSION

     For the foregoing reasons, we affirm the district court's

denial of Knight's § 2255 motion.

     AFFIRMED.




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