UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 97-4702

JOHN MELVIN SUTHERLAND,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-97-149)

Submitted: June 2, 1998

Decided: July 7, 1998

Before WIDENER, MURNAGHAN, and ERVIN, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James H. Renfrow, Jr., Dillon, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Alfred W. Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

John Melvin Sutherland pled guilty to conspiracy to possess with
intent to distribute and to distribute methamphetamine, 21 U.S.C.
§ 846 (1994), and received a sentence of forty-two months imprison-
ment. He appeals his sentence, contending that the sentencing scheme
established for methamphetamine offenses in 21 U.S.C.A. § 841(b)
(West 1981 & Supp. 1998), and USSG § 2D1.1 1 is unconstitutional,
and that the district court clearly erred in finding that he had more
than a minimal role in the offense. See USSG§ 3B1.2. We affirm.

On October 19, 1996, Donald King was arrested with 24.7 grams
of methamphetamine in his possession after he met with a cooperating
defendant. King told federal agents that his friend, John Sutherland,
was holding an additional six ounces of methamphetamine for him.
The agents went to Sutherland's house, where Sutherland consented
to a search and handed over a package containing 346.4 grams of
methamphetamine (gross weight). Asked if there were any other
drugs in the house, Sutherland pointed out a container holding a small
amount of marijuana and 13.3 grams of methamphetamine (gross
weight) in a number of plastic bags. Laboratory analysis of the larger
amount of methamphetamine disclosed a total of 70.1 grams of pure
methamphetamine.

Sutherland's offense level was calculated using the 70.1 grams of
pure methamphetamine he possessed. Under the sentencing guide-
lines, one gram of pure methamphetamine2 is the equivalent of ten
kilograms of marijuana, while one gram of methamphetamine mixture
is the equivalent of one kilogram of marijuana; the greater offense
level is to be used. See USSG § 2D1.1, comment. (n.10(d)) (Drug
Equivalency Table for Cocaine and Other Schedule I and II Stimu-
lants). The 70.1 grams converted to 701 kilograms of marijuana, giv-
ing Sutherland a base offense level of 30.
_________________________________________________________________
1 U. S. Sentencing Guidelines Manual (1995).
2 Pure methamphetamine is called"methamphetamine (actual)" in the
Drug Table and conversion table. See USSG§ 2D1.1(c), n.*(B).

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At sentencing, Sutherland argued that his sentence should be calcu-
lated using the mixture rather than the pure methamphetamine, so as
to give him a base offense level of 26 rather than 30. He pointed out
that many of his co-defendants' sentences were calculated using the
mixture conversion method because no methamphetamine was seized
from them which could be analyzed. He argued that his involvement
in the conspiracy was limited and that he should not be penalized
more harshly than the others. The government did not oppose use of
the mixture conversion method, but the district court decided that it
could not disregard the guidelines' direction to use the method which
produced the greater offense level. With reductions in his offense
level for minor role and acceptance of responsibility, Sutherland's
guideline range was 63-78 months. He was subject to a statutory
minimum sentence of sixty months because his offense involved more
than ten grams of methamphetamine. See 21 U.S.C.A.
§ 841(b)(1)(B)(viii). The district court departed downward on the
government's motion under USSG § 5K1.1, p.s., and imposed a sen-
tence of forty-two months imprisonment.

On appeal, Sutherland contends that the sentencing scheme for
methamphetamine offenses is unconstitutional because it lacks a
rational basis and is subject to arbitrary enforcement. He maintains
that the penalty provisions allow the sentencing court to make an arbi-
trary election to use either pure methamphetamine or the weight of
the methamphetamine mixture and provide no guidance in determin-
ing which method to apply. Because this argument was not made at
sentencing, the district court did not rule on it, and we review for
plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 731-32 (1993). Sutherland must show that an error
occurred, that the error was plain, and that the error affected his sub-
stantial rights. See Olano, 507 U.S. at 732; United States v. Cedelle,
89 F.3d 181, 184 (4th Cir. 1996). Even if Sutherland can meet this
burden, we must decide whether the error is one which seriously
affects the fairness, integrity, or public reputation of judicial proceed-
ings and thus should be corrected. See Olano, 507 U.S. at 732.

Sutherland is incorrect when he argues that the sentencing scheme
permits the court arbitrarily to select either pure methamphetamine or
the total weight of the mixture as the basis for the sentence. If the
weight of the pure methamphetamine is known, the guideline requires

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the court to use the method which produces the greater offense level.
Acknowledging this fact, Sutherland maintains that using the greater
offense level is "arbitrary, irrational and unfair" because other defen-
dants in the same conspiracy were sentenced using the mixture
method. However, the Seventh Circuit has held that the methamphet-
amine sentencing scheme set out in § 841 and USSG § 2D1.1 has a
rational basis. See United States v. Turner, 93 F.3d 276, 287 (7th Cir.
1996). We find that the district court did not plainly err in this case
in failing to decide, sua sponte, that the penalty scheme lacks a ratio-
nal basis.

Next, Sutherland argues that the district court should have awarded
him a four-level adjustment for having a minimal role in the offense.
The defendant's role in the offense is a factual question which we
review under the clearly erroneous standard. See United States v.
Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995). Critical to a finding
that a defendant is a minimal participant in a concerted criminal activ-
ity is his lack of knowledge or understanding of the scope and struc-
ture of the enterprise and the activities of others. See USSG
§ 3B1.2(b), comment. (n.1). Here, the district court found that,
because Sutherland admitted buying methamphetamine from other
conspirators and using it with them over a period of years and
because, on the date of his arrest, he provided knowing assistance by
storing a large amount of methamphetamine, he had more than a min-
imal role. We cannot say that this determination was clearly errone-
ous.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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