                                       No. 96-1328


United States of America,                        *
                                                 *
         Appellee,                               *
                                                 * Appeal from the United States
           v.         *                          District Court for the Western
                                                 * District of Missouri.
Dennis E. McMullen,                              *
                                                 *
         Appellant.                              *




                                Submitted:   May 14, 1996

                                 Filed:   June 12, 1996


Before MORRIS SHEPPARD ARNOLD, HEANEY, and HENLEY, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Dennis       McMullen      was   indicted     for   conspiracy   to   distribute
methamphetamine and possession with intent to distribute methamphetamine.
Several months later, a grand jury returned two additional two-count
indictments against him.          The first charged McMullen with attempting to
kill a federal witness and solicitation of a federal crime, the second with
conspiracy      and   attempt    to   manufacture    methcathinone.    McMullen   was
arraigned on the new charges on the day his first trial was scheduled to
begin.    After conferring with his counsel, he pleaded guilty to one count
of each of the three indictments.


     Four months later, McMullen filed a motion to withdraw his guilty
pleas.     In the motion, he claimed that his counsel gave him erroneous
advice about the relevant sentencing laws and that he
would not have pleaded guilty but for that advice.           Following a brief
hearing, the district court allowed him to withdraw his pleas to the later
indictments but refused to allow him to withdraw his plea to the original
one.   McMullen then filed a new motion to withdraw that plea, which the
district court denied.       (McMullen later re-entered guilty pleas in the
other two cases.)


       At McMullen's sentencing hearing, Special Agent Anthony Grootens of
the Drug Enforcement Administration outlined McMullen's criminal enterprise
for the court.     Grootens testified that McMullen made several trips to
California   to   purchase   methamphetamine   from   a   number   of   different
suppliers.   He then brought the methamphetamine to Missouri, where several
distributors sold the drugs for him.    Grootens also described a "drug book"
in which McMullen recorded the names of distributors who owed him money.
Grootens's testimony was corroborated in part by Patrolman Mike Madewell
of the Monett, Missouri, Police Department.     Finally, Dr. Philip Whittle,
director of the Missouri Southern State College Regional Crime Laboratory,
reviewed the results of tests analyzing 150.9 grams of methamphetamine that
was seized from McMullen.     Dr. Whittle testified that all 150.9 grams were
dextro-methamphetamine (d-methamphetamine) rather than levo-methamphetamine
(l-methamphetamine).


       At the sentencing hearing, the court found that 1,389 grams of
methamphetamine were involved in the conspiracy; it also found that all of
the drugs were d-methamphetamine.       The court gave McMullen a two-level
enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, and a
four-level enhancement for being an "organizer or leader" in a criminal
enterprise, see U.S.S.G § 3B1.1(a).     McMullen was sentenced to 262 months
in prison and five years supervised release.




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        On appeal, McMullen challenges the district court's refusal to allow
him to withdraw his remaining guilty plea.          He also claims that the
district court erred in finding that all of the methamphetamine involved
was d-methamphetamine.      Finally, he contends that he should not have
received a four-level leadership enhancement.


                                      I.
        McMullen argues that the district court should have allowed him to
withdraw his guilty plea to the original indictment because his attorney
was constitutionally ineffective.    McMullen contends that he knew nothing
about the subsequent indictments until he arrived for trial.      He further
claims that he had not intended to plead guilty to the original indictment
when he appeared on the date of his trial and that he did so only because
his attorney gave him erroneous advice.     Counsel told him that if he did
not   plead guilty to all three indictments, and he was subsequently
convicted, his sentences would run consecutively.    In fact, McMullen could
not have been sentenced consecutively unless the district court determined
that an upward departure was required, a possibility not raised by this
case.    See, e.g., United States v. Marsanico, 61 F.3d 666, 668-69 (8th Cir.
1995), and U.S.S.G. § 5G1.2(c), § 5G1.3(b).     His attorney admits that he
gave McMullen erroneous advice, and there appears to be no question that
he is correct in this.


        The determination of whether a defendant may withdraw a guilty plea
is left to the sound discretion of the trial court.        See, e.g., United
States v. Newson, 46 F.3d 730, 732 (8th Cir. 1995).         A defendant may
withdraw his plea only if he has a "fair and just reason" to do so.      See
Fed. R. Crim. P. 32(e) and United States v. Capito, 992 F.2d 218, 219 (8th
Cir. 1993).    Defense counsel's performance can serve as the requisite "fair
and just reason" for withdrawal only if McMullen demonstrates both that his
attorney's




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performance was deficient and that he was prejudiced by it.                         See, e.g.,
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).              That is, he must prove "that
there is a reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial."                         Id.
at 59.


        The    district    court     failed    to    determine      whether    McMullen     was
prejudiced by his counsel's errors.                   In fact, the court never asked
McMullen whether his counsel's inaccurate advice caused him to plead
guilty.       McMullen made only one statement at the hearing.                 When asked if
he wished to speak, he responded, "I just wish I could withdraw because I
didn't understand completely what the situation of the morning was.                      I was
stressed out, Your Honor."            We are unable to determine from this record
whether the court should have allowed McMullen to withdraw his remaining
plea.     We therefore remand the case for an evidentiary hearing on this
issue.    If the court finds that McMullen would not have pleaded guilty but
for his counsel's erroneous advice, then he is entitled to withdraw his
plea.


                                              II.
        McMullen also raises two sentencing issues.                   Although we address
these issues at this time, our discussion is, of course, relevant only if
the district court does not allow McMullen to withdraw his plea.


                                              A.
        McMullen first contends that the district court erroneously found
that     all    of   the   methamphetamine          involved   in    the   conspiracy       was
d-methamphetamine          instead    of      l-methamphetamine.              The    type    of
methamphetamine involved in the conspiracy substantially affects the length
of McMullen's sentence.        Until the relevant guideline was amended in 1995,
sentences for l-methamphetamine were lighter than for d-methamphetamine.
(One gram of l-methamphetamine was




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equivalent to 40 grams of marijuana; one gram of d-methamphetamine was
equivalent to 1,000 grams of marijuana.    See U.S.S.G. § 2D1.1, application
note 10 (Nov. 1994).)   Although McMullen was sentenced after the amendment
became effective, he committed the crime before that time.   The applicable
rule is therefore the one in effect when the crime was committed, see
U.S.S.G. § 1B1.11(b)(1); application of the amended guideline would violate
the ex post facto clause of the Constitution, because the amendment
increased the sentence for l-methamphetamine.   See, e.g., California Dep't
of Corrections v. Morales, 115 S. Ct. 1597, 1602 n.3 (1995).


     For sentencing purposes, the government bears the burden of proving,
by a preponderance of the evidence, what type of methamphetamine was
involved in the conspiracy.   See, e.g., United States v. Jennings, 12 F.3d
836, 838 (8th Cir. 1994).     At the sentencing hearing, the district court
rehearsed several considerations that evidently influenced its finding that
all of the drugs were d-methamphetamine.    First, the district judge noted
that he had presided over a number of methamphetamine trials, but that none
of them had involved l-methamphetamine.    Second, the court indicated that
McMullen would not have paid the price that he did if the drugs had been
l-methamphetamine.   Third, the court did not believe that l-methamphetamine
would have been sent from California to Missouri.       Finally, all of the
methamphetamine recovered by the police was d-methamphetamine.


     We agree with McMullen that, if the district court based its finding
on judicial experience, on the price of the drugs, or on the fact that the
drugs originated in California, it was in error. The district court is not
entitled to rely on its judicial      experience to determine the type of
methamphetamine involved, see, e.g., United States v. Wessels, 12 F.3d 746,
754 (8th Cir. 1993), cert. denied, 115 S. Ct. 105 (1994), and the
government presented no evidence about the relative prices of d- and
l-methamphetamine




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or the probability that l-methamphetamine would be transported across the
country.    The court was, however, entitled to consider the fact that the
seized drugs were d-methamphetamine.       See, e.g., Jennings, 12 F.3d at 838.
We are unable to tell from the record whether the court gave dispositive
weight to any of the considerations that were not entitled to be weighed.
On remand, therefore, we instruct the court to make further findings on
this issue, considering only such matters as are entitled to go in the
balance.


                                         B.
        McMullen claims finally that he should not have received a four-level
leadership enhancement.    See U.S.S.G. § 3B1.1(a).     McMullen claims that he
does not qualify for this enhancement because he was not a leader or
organizer in the conspiracy and because the conspiracy did not involve five
or more participants.     He asserts that he simply sold drugs to individuals
for their personal use.    See, e.g., United States v. Pena, 67 F.3d 153, 156
(8th Cir. 1995).


        We disagree with McMullen's characterization of the evidence.           "We
have broadly interpreted the terms 'organizer' and 'leader,'"                United
States v. Maxwell, 25 F.3d 1389, 1399 (8th Cir.), cert. denied, 115 S. Ct.
610 (1994), and the guidelines require only that McMullen organized or led
one   participant   to   trigger   the   enhancement,   see   U.S.S.G.   §   3B1.1,
application note 2, and Pena, 67 F.3d at 157.           Here, the government's
evidence supported the district court's conclusion.           Both Special Agent
Grootens and Patrolman Madewell testified that McMullen employed several
distributors to sell drugs for him.       Their testimony also rebuts McMullen's
claim that the other participants in the enterprise were merely drug users.
The district court did not clearly err in accepting these asseverations as
true.




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                                  III.
     For the foregoing reasons, we affirm in part, reverse in part, and
remand the case for proceedings not inconsistent with this opinion.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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