                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 15 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 97-7089
v.                                               (E. District of Oklahoma)
                                                  (D.C. No. CR-91-12-S)
MANUEL DIAZ SANCHEZ,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.



      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. 34.1.9. The cause is therefore ordered submitted without oral

argument.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The 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.
      Manuel D. Sanchez, proceeding pro se, appeals the district court’s denial of

his “Motion to Modify Sentence” brought pursuant to 18 U.S.C. § 3582(c)(2).

According to Sanchez, the district court erred in denying the Motion to Modify

without first holding a hearing. This court exercises jurisdiction pursuant to 28

U.S.C. § 1291 and affirms.

      Sanchez was indicted in a multi-count, multi-defendant controlled

substance distribution conspiracy on March 15, 1991. On May 29, 1991, Sanchez

pleaded guilty to count eight of the indictment, which alleged a violation of

21 U.S.C. § 841(a)(1), possession of marijuana with intent to distribute. In

determining Sanchez’s base offense level for purposes of sentencing, the district

court considered, over Sanchez’s objection, a large quantity of cocaine as relevant

conduct. This court affirmed Sanchez’s sentence on direct appeal. United States

v. Sanchez, No. 91-7100, 1992 WL 74128 (10th Cir. April 6, 1992). Sanchez

thereafter filed a petition pursuant to 28 U.S.C. § 2255 challenging his sentence.

The district court denied the petition and this court affirmed. United States v.

Sanchez, No. 96-7039, 1997 WL 8842 (10th Cir. January 10, 1997).

      Soon thereafter, Sanchez initiated this action, his third attempt to have his

sentence modified, by filing a Motion to Modify with the district court pursuant to




                                         -2-
18 U.S.C. § 3582(c)(2). 1 Although Sanchez’s arguments are nearly

incomprehensible, he appeared to argue that Amendments 484 and 516 to the

United States Sentencing Guidelines, effective November 1, 1995, changed the

manner in which his base offense level should be calculated and, therefore,

entitled him to a sentencing reduction pursuant to §3582(c)(2). The district court

denied the Motion by minute order on July 15, 1997. It is from this minute order

that Sanchez appeals.

      Sanchez argues on appeal that the district court erred when it denied his

Motion to Modify without first holding a hearing. Because Sanchez’s arguments

regarding the Amendments are both frivolous and meritless, the district court did

not err in denying Sanchez’s Motion without first holding a hearing.

      Amendment 484 resolved an inter-circuit conflict by amending the

commentary to guideline § 2D1.1. 2 The newly amended commentary makes clear

that in establishing the weight of a controlled substance, the courts should not

      1
       Section 3582(c)(2) provides as follows:
            [I]n the case of a defendant who has been sentenced to a term
      of imprisonment based on a sentencing range that has subsequently
      been lowered by the Sentencing Commission pursuant to 28 U.S.C. §
      994(o), upon motion of the defendant . . . the court may reduce the
      term of imprisonment, after considering the factors set forth in
      section 3553(a) to the extent that they are applicable, if such a
      reduction is consistent with applicable policy statements issued by
      the Sentencing Commission.
      2
       U.S.S.G. § 2D1.1 establishes the base offense level for controlled
substance crimes.

                                         -3-
include “materials that must be separated from the controlled substance before the

controlled substance can be used.” U.S.S.G. § 2D1.1 commentary. In an absurd

reading of Amendment 484, Sanchez apparently argues that the Amendment

prevents the combining of different types of drugs (i.e., marijuana and cocaine) in

determining a defendant’s base offense level. Thus, according to Sanchez’s

reading of the Amendment, the district court was obligated to consider either the

marijuana or the cocaine but not both in determining his base offense level.

      In contrast to Sanchez’s reading of Amendments 484, the purpose of the

Amendment is clear: the base offense level for drug crimes should be based on

the actual weight of the illegal drugs, excluding unusable byproducts and

packaging materials from the calculations. Amendment 484 does not eliminate

consideration, under the relevant conduct provisions, of controlled substances

other than those found in the count of conviction. Because Sanchez’s argument

based on Amendment 484 is completely without merit, the district court did not

err in denying the Motion to Modify on this ground without first holding a

hearing.

      Sanchez’s arguments with regard to Amendment 516 are similarly flawed.

Amendment 516 altered the equivalency used to convert marijuana plants to

usable marijuana for purposes of calculating a defendant’s base offense level.

Prior to the Amendment, § 2D1.1 provided that “In the case of an offense


                                         -4-
involving marijuana plants, if the offense involved (A) 50 or more marihuana

plants, treat each plaint as equivalent to 1 KG of marihuana; (B) fewer than 50

marihuana plants, treat each plant as equivalent to 100 G of marihuana.” After

the Amendment, § 2D1.1 simply provided that, without regard to the number of

plants at issue, each plant should be considered as equivalent to 100 G of

marijuana.

      Sanchez asserts, without explanation, that he is entitled to a reduction in his

base offense level based on Amendment 516. The record makes clear, however,

that Sanchez pleaded guilty to involvement in a plot to distribute 1200 pounds of

marijuana. His case did not involve plants and, therefore, did not call into

question the issue of conversion between plants and usable marijuana.

Accordingly, Amendment 516 is completely inapplicable to his case. 3




      3
        It must be further noted that the 5 KG of cocaine attributed to Sanchez as
relevant conduct, an attribution upheld by this court on direct appeal and on
collateral proceedings, is alone sufficient to support a base offense level of 32.
U.S.S.G. § 2D1.1(4).

                                         -5-
      Because Sanchez’s Motion to Modify is both frivolous and meritless, the

district court did not err in denying the Motion without a hearing. Accordingly,

the Order of the district court denying the Motion to Modify is hereby

AFFIRMED.

                                              ENTERED FOR THE COURT,



                                              Michael R. Murphy
                                              Circuit Judge




                                        -6-
