                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          DEC 6 1999
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 99-6115
                                                    (D.C. No. 98-CR-57)
 PAUL A. HARRIS,                                       (W.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Defendant-Appellant Paul A. Harris appeals from the sentence imposed

based upon his conviction of conspiracy to manufacture methamphetamine, 21

U.S.C. § 846. Mr. Harris was sentenced, after an evidentiary hearing, to 121

months imprisonment and five years supervised release. On appeal, Mr. Harris

contends that the district court should have applied the guidelines pertaining to


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
nominal methamphetamine, rather than methamphetamine (actual). We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.

      Mr. Harris was arrested in a motel room containing chemicals and

accouterments used in the manufacture of methamphetamine, though no

completed samples of the drug were discovered. Mr. Harris admitted to the police

that he had been manufacturing the drug, and told them the quantity of raw

materials he had used. The trial court’s estimates of quantity are based in part on

these admissions.

      The guidelines direct the sentencing court to use the greater of the offense

levels determined either by the total weight of the mixture or substance containing

methamphetamine (“nominal”), or the weight of the amphetamine itself contained

in the mixture, based on its purity (“actual”). See USSG § 2D1.1(c) note B.

      The nominal amount produced was estimated to be between 640 and 840

grams, resulting in an offense level of 32. Mr. Harris does not contest this

calculation. Based on the evidence of the amount of materials Mr. Harris used,

and assuming a purity level of 82-83%, the actual amount of pure amphetamine

produced was estimated to be approximately 708 grams, resulting in an offense

level of 34. 1 Mr. Harris challenges this latter amount, contending that the purity



      The trial court found Mr. Harris to be eligible for a two level “Safety
      1

Valve” adjustment under U.S.S.G. § 5C1.2. Thus, the decision in this case will
determine whether Mr. Harris ultimately has an offense level of 30 or 32.

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of the substance he produced was unknown, and that the samples found in the

motel room that were analyzed were found to be “substantially less than 80%

concentration of methamphetamine.”

      The guidelines direct the sentencing court to estimate quantity if necessary.

U.S.S.G. § 2D1.1 cmt. 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.”). The sentencing court’s factual findings concerning

quantity are reviewed by this court for clear error. See United States v. Lopez,

100 F.3d 113, 120 (10th Cir. 1996). The government must prove the quantity of

drugs for sentencing purposes by a preponderance of the evidence. See United

States v. Sloan, 65 F.3d 861, 865 (10th Cir. 1995).

      In this case, the district court relied on the testimony of an Oklahoma City

Police Department detective to establish an approximation of actual

methamphetamine produced. The detective testified that based on his experience,

as well as conversations with chemists from the DEA and Oklahoma State Bureau

of Investigation, the materials Mr. Harris admitted having possessed could

produce approximately 864 grams of 82-83% pure methamphetamine, or

approximately 708 grams of actual methamphetamine. He considered this to be a

conservative estimate.

      At the time of his testimony, the detective had participated in the


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investigation of between 200-300 methamphetamine lab sites and had spent over

five years with the DEA Task Force in Oklahoma City. He stated that he did not

recall ever having seen a finished batch of methamphetamine that was below 80

percent pure, and that most of the batches he had seen were in the high 80s up to

98 percent pure.

      Given the evidence before it, the district court did not commit clear error.

The fact that the only samples found in Mr. Harris’ motel room were substantially

below 80 percent pure is not dispositive. The detective testified that the samples

were consistent with waste material left over from the manufacturing process, and

would not be indicative of the purity of the finished product. Finally, we note

that even at a significantly lower purity than the already conservative estimate of

82-83% purity, Mr. Harris would still fall into the range specifying an offense

level of 34.

      AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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