                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              MAY 3 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 99-3266
                                                             (D. Kan.)
 DENNIS LEE,                                      (D.Ct. No. 96-CR-40055-SAC)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Dennis Lee appeals his sentence after pleading guilty to one


      *
          This order and judgment is not binding precedent except under the doctrines of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.
count of conspiracy to possess with intent to manufacture or distribute in excess

of one kilogram of methamphetamine. Specifically, Mr. Lee appeals the type of

methamphetamine the district court attributed to him in calculating his sentence

under United States Sentencing Guideline § 2D1.1(c)(3). We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.



      As part of a plea agreement, Mr. Lee pled guilty to Count I of an

indictment for conspiracy to possess with intent to manufacture or distribute in

excess of one kilogram of methamphetamine. The indictment indicated the

conspiracy began on or about March 1, 1993. After Mr. Lee pled guilty, a

probation officer prepared a presentencing report. In calculating Mr. Lee’s

sentence, the probation officer recommended a base offense level of 34 under

United States Sentencing Guideline § 2D1.1(c)(3) because the conspiracy

involved 7,999 grams of “methamphetamine.”



      Mr. Lee filed objections to the presentencing report, including an objection

on grounds the methamphetamine involved in the conspiracy consisted of L-

methamphetamine rather than D-methamphetamine. Mr. Lee argued the

distinction was important because the conspiracy occurred before the November

1, 1995 amendment to U.S.S.G. § 2D1.1(c)(3), which eliminated the distinction


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between L- and D-methamphetamine for the purposes of sentencing. 1 In sum, Mr.

Lee argued that because the current version of § 2D1.1(c)(3) does not apply in his

case, the district court must calculate his sentence to reflect the lesser sentences

previously given for L- rather than D-methamphetamine possession and

manufacturing. 2



      At Mr. Lee’s sentencing hearing, the government offered the testimony of

Special Agent Larry Dixon with that of the Kansas Bureau of Investigation. Mr.

Dixon testified Mr. Lee produced his methamphetamine using “an ephedrine

reduction method.” Agent Dixon testified he received this information from Mr.

Lee, Mr. Lee’s live-in girlfriend, and another co-conspirator. The government

next offered the testimony of Dwaine Worley, a forensic chemist, who testified

the ephedrine reduction method of manufacturing methamphetamine always


      1
          “Under the old guidelines, a sentence for [L-methamphetamine] was
significantly less than one for D-methamphetamine.” See United States v. Svacina, 137
F.3d 1179, 1186 (10th Cir. 1998). The November 1, 1995 amendment eliminated this
distinction, so that all forms of methamphetamine are now treated as type D-
methamphetamine. Id. (relying on U.S.S.G. App. C at 344, Amendment 518).

      2
         Mr. Lee points out that under the prior version of § 2D1.1, one gram of L-
methamphetamine is equivalent to forty grams of marijuana under the Drug Equivalency
Tables, so that he must have distributed 250 times as much L-methamphetamine as D-
methamphetamine to receive the same sentence he received applying the current version
of § 2D1.1(c)(3).


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produces D-methamphetamine.



      In addition to this testimony, the district court made findings and

conclusions of law at the sentencing hearing concerning Mr. Lee’s objections to

the presentencing report’s application of the current version of § 2D1.1. The

district court acknowledged the November 1, 1995 amendment eliminated the

distinction between the two types of methamphetamine so that the completion

date of the conspiracy controlled what version of § 2D1.1 applied. Because a

conspiracy is a prototypical continuing offense, the district court determined the

conspiracy at issue in this case did not end until Mr. Lee’s indictment on July 24,

1996, so that the current version of § 2D1.1, enacted on November 1, 1995,

applied. Later, in a written memorandum filed with the final presentencing

report, the district court reiterated these same conclusions. In addition, the

district court stated “[e]ven if this were not so, based upon the evidence presented

during the sentencing hearing, the court would conclude that the government

carried its burden of proving by a preponderance of the evidence that the

manufacture and distribution of D-methamphetamine was the object of this

defendant’s drug trafficking conspiracy.”



      On appeal, Mr. Lee raises the same issue addressed by the district court


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concerning the application of the current version of U.S.S.G. § 2D1.1(c)(3) in

calculating his sentence. We review the district court’s application of the

sentencing guidelines de novo, and its factual findings under a clearly erroneous

standard. United States v. Morales, 108 F.3d 1213, 1225 (10th Cir. 1997). It is

well established conspiracy is a continuing offense for which a conspirator, like

Mr. Lee, may be sentenced under a law enacted during the course of the

conspiracy and which increases the penalty. See United States v. Stanberry, 963

F.2d 1323, 1327 (10th Cir. 1992); accord United States v. Boyd, 149 F.3d 1062,

1068 (10th Cir. 1998), cert. denied, 526 U.S. 1147 (1999); United States v.

Massey, 48 F.3d 1560, 1568 (10th Cir.), cert. denied, 515 U.S. 1167 (1995).



      In applying this principle, we must determine if the district court correctly

determined the conspiracy ended in July 1996 so that the current version of

U.S.S.G. § 2D1.1 should be applied in calculating Mr. Lee’s sentence. In this

case, Mr. Lee pled guilty to Count I of the indictment for a conspiracy, as “set out

in the Grand Jury Indictment and supporting testimony.” During the plea hearing,

the government introduced into evidence a summary of the grand jury testimony

as well as the testimony of eight individuals, which supported Count 1 of the

indictment and established that between March 1, 1993 and continuing until July

24, 1996, Mr. Lee conspired to possess, manufacture and distribute one kilogram


                                         -5-
of methamphetamine. Mr. Lee agreed that the witnesses would testify to this if

called to testify against him, and that he did the things set forth in Count I of the

indictment. For the purposes of determining when the conspiracy ended, we

believe this is sufficient evidence. Thus, we hold the district court correctly

concluded the conspiracy ended July 24, 1996, requiring application of the current

version of U.S.S.G. § 2D1.1(c)(3) in calculating Mr. Lee’s sentence at a base

offense level of 34. Moreover, even if the conspiracy ended prior to enactment of

the current version of this sentencing guideline, we agree with the district court’s

finding the government provided sufficient evidence at the sentencing hearing to

establish the conspiracy involved the manufacture of D-, rather than L-,

methamphetamine for the purpose of sentencing Mr. Lee.



      For the foregoing reasons, we AFFIRM the district court’s judgment

concerning Mr. Lee’s conviction and sentence.


                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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