UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4501

DAVID ZACKERY,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Chief District Judge.
(CR-94-141)

Argued: September 23, 1998

Decided: October 20, 1998

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Richard Angotti, ANGOTTI & STRAFACE, L.C.,
Morgantown, West Virginia, for Appellant. Robert H. McWilliams,
Jr., Assistant United States Attorney, Wheeling, West Virginia, for
Appellee. ON BRIEF: William D. Wilmoth, United States Attorney,
Paul T. Camilletti, Assistant United States Attorney, Wheeling, West
Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

David Zackery was charged with manufacturing methamphet-
amine, use of a firearm during a drug trafficking offense, and two
counts of possession with intent to distribute methamphetamine. He
pleaded guilty to the single count of manufacturing methamphet-
amine, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 70
months imprisonment. He now challenges his sentence, disputing the
district court's calculation of drug quantities. For the reasons men-
tioned below, we vacate Zackery's sentence and remand for resen-
tencing.

I.

The presentence report for Zackery listed quantities of drugs seized
on four different occasions. On October 4, 1994, the police searched
Zackery's house and seized a drug mixture weighing 51.01 grams,
including 0.969 grams of pure methamphetamine.1 They also seized
laboratory equipment, chemistry reference books, and a handgun. The
following day, the police searched his car and found a drug mixture
weighing 6.938 grams, including 0.069 grams of pure methamphet-
amine. During a traffic stop on November 22, 1994, the police con-
ducted a consent search of Zackery's car, finding two bags of
methamphetamine, weighing 15.1 grams and 30.1 grams, and pieces
of paper bearing methamphetamine residue. Finally, on December 14,
1994, the police searched his car and found two bottles of drugs. One
bottle contained 2.86 grams of methamphetamine crystals. The other
was filled with 265 ml. of a liquid containing traces of methamphet-
amine. The presentence report included the entire 265 ml. mixture as
relevant conduct, which Zackery disputed by presenting expert testi-
mony as to the nature of the mixture.
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1 It was only this mixture or substance that was charged in the manu-
facturing count, the count of conviction.

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The district court adopted the findings of the presentence report.
The drug quantity findings yielded an offense level of 26 under the
Sentencing Guidelines, which was reduced three levels for Zackery's
acceptance of responsibility. Based on a total offense level of 23 and
a criminal history category of IV, the guideline range for imprison-
ment was between 70 and 87 months. As mentioned, Zackery
received 70 months, and he appeals his sentence.

II.

Zackery argues, and the government agrees, that the district court
should not have included the entire 265 ml. of the liquid drug mixture
found in one of the bottles seized on December 14, 1994. Before the
defense expert could conduct his own tests on the liquid, it had evapo-
rated, leaving only a sticky residue in the bottle. However, the expert,
whose testimony is uncontested, said that the liquid was an unusable
(poisonous) by-product of the drug manufacturing process.

Under the Sentencing Guidelines, unusable materials are excluded
in determining the weight of a mixture or substance containing a
detectable amount of a controlled substance. Application Note 1,
U.S.S.G. §2D1.1 ("Mixture or substance does not include materials
that must be separated from the controlled substance before the con-
trolled substance can be used."). The district court therefore erred by
including the entire 265 ml. of liquid in its calculation. On remand,
the court should subtract the unusable portion of the liquid.2

III.

The only remaining question is whether Zackery is subject on
resentencing to a mandatory minimum sentence under 21 U.S.C.
§ 841(b)(1)(B). The government now concedes that he is not.3 Zack-
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2 The Guidelines specify that"[i]f such material cannot readily be sepa-
rated 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."
Application Note 1, U.S.S.G. §2D1.1.
3 In its initial brief the government argued that Zackery was subject on
resentencing to a mandatory prison term of five years. At oral argument

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ery pleaded guilty to a single count of manufacturing methamphet-
amine. Therefore, only the drugs attributable to the manufacturing
offense should be counted for purposes of determining whether the
mandatory minimum applies. See United States v. Estrada, 42 F.3d
228 (4th Cir. 1994). The government agrees that the drugs to be con-
sidered on this question are those seized in the police search of Zack-
ery's house on October 4, 1994. During that search the police seized
51.01 grams of a drug mixture containing 0.969 grams of pure
methamphetamine. The five-year mandatory minimum sentence only
applies if the entire drug mixture weighs at least 100 grams or the
weight of pure drugs is at least 10 grams. 21 U.S.C.
§ 841(b)(1)(B)(viii). Therefore, the mandatory minimum penalty does
not apply.4

We vacate Zackery's sentence and remand the case to the district
court for resentencing.

VACATED AND REMANDED
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the government pointed out that it was mistaken in its initial position,
and it has since advised us in writing that Zackery"is not subject to the
mandatory five year minimum penalty." Appellee's Supp. Br. at 1. We
appreciate the government's candor.
4 We express no opinion as to whether, for purposes of 21 U.S.C.
§ 841(b), unusable portions of a drug mixture should be excluded, as
happens under the Sentencing Guidelines.

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