                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 22, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 02-10703
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DONNY RAY WARD,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:01-CR-149-1
                      --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Donny Ray Ward appeals following his convictions for

possession of methamphetamine with intent to distribute,

21 U.S.C. § 841 (Count One), (2) possession of unregistered

destructive devices, 26 U.S.C. §§ 5845, 5861(d), 5871 (Count

Two), and possession of a firearm in furtherance of a drug

trafficking crime, 18 U.S.C. § 924(c) (Count Three).     We AFFIRM

IN PART, VACATE IN PART, and REMAND.



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                             No. 02-10703
                                  -2-

     Ward first challenges the district court’s determination

that he is accountable for 60.6 grams of methamphetamine

(actual), and his corresponding sentence of 121 months’

imprisonment under Count One.     See U.S.S.G. § 2D1.1(c)(4)

(Drug Quantity Table).    This court reviews de novo the sentencing

court’s interpretation and application of the Sentencing

Guidelines.     See United States v. Charles, 301 F.3d 309, 313-14

(5th Cir. 2002)(en banc)).    This court reviews a district court’s

factual findings concerning the quantity of drugs attributable

to a defendant for clear error.     See United States v. Maseratti,

1 F.3d 330, 340 (5th Cir. 1993).

     Ward contends that, because he was charged with possession

of methamphetamine with intent to distribute, the district

court could sentence him based only on the quantity of drugs

he possessed.    Because the precursor materials found on Ward’s

premises were part of the same course of conduct or part of a

common scheme or plan as the count of conviction, the district

court was required under the Sentencing Guidelines to consider

them in calculating Ward’s sentence.     See U.S.S.G. § 1B1.3,

comment. (backg’d).

     Ward also argues that the district court’s determination

that the pseudoephedrine found on his premises could be used to

manufacture 56.1 grams of methamphetamine (actual) was error

because the district court lacked reliable information as to the

quantity or purity of the drug that could have reasonably been
                            No. 02-10703
                                 -3-

extracted in a clandestine laboratory.     A review of the

sentencing proceedings show that the district court simply

accepted the calculations and estimates of the Government’s

experts as to drug quantity over that of Ward’s expert,

Dr. Booker.   A district court does not clearly err in crediting

one expert’s analysis over that of another.     See United States

v. Doggett, 230 F.3d 160, 167 (5th Cir. 2000).

     We do not reach the merits of Ward’s argument that 1.2 grams

of methamphetamine were for his personal use because this amount

does not affect the applicable Guideline range.     See United

States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994); U.S.S.G.

§ 2D1.1(c)(4).   As Ward concedes, his argument that 21 U.S.C.

§ 841(A) & B are facially unconstitutional is foreclosed.        See

United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

     Citing Amendment 599 to the Sentencing Guidelines, Ward

argues that the district court erred in applying a two-level

enhancement pursuant to § 2D1.1(b)(1).     He also contends that the

district court erred in sentencing him to the statutory maximum

of 120 months’ imprisonment for Count Two.     Because Ward did not

raise these issues in the district court, he must satisfy the

plain error standard.   See United States v. Olano, 507 U.S. 725,

731-37 (1993).

     The Government concedes that the district court erred in

applying the enhancement.   We agree that the application of the

two-level enhancement was error.   See U.S.S.G. § 2K2.4, comment.
                            No. 02-10703
                                 -4-

(n.2).   We disagree with the remainder of the Government’s

analysis, however, because the grouping of Count One and Count

Two was proper.   See U.S.S.G. § 3D1.2(d).     Under a correct

application of the Guidelines, Ward’s sentences on Count One and

Count Two are to be based on a total offense level of 29.

Because the district court misapplied the Guidelines, and Ward’s

sentences on Count One and Count Two fall outside the applicable

range under the Guidelines, we exercise our discretion under

plain error review, VACATE Ward’s sentences on Count One and

Count Two, and REMAND for resentencing.      See Olano, 507 U.S. at

735-37; United States v. Alarcon, 261 F.3d 416, 424 (2001).

     Ward has not shown that his conviction under 18 U.S.C.

§ 924(c) was plain error.   See United States v. Ceballos-Torres,

218 F.3d 409, 410-15 (5th Cir. 2000).      Accordingly, Ward’s

conviction under Count Three is AFFIRMED.      Given the above

determination, we reject Ward’s argument that the district court

plainly erred in failing to apply a two-level reduction under the

“safety-valve” provisions of the Sentencing Guidelines.      See

U.S.S.G. §§ 2D1.1(6), § 5C1.2(a)(2).

     To the extent that Ward raises ineffective assistance of

counsel claims or other arguments for the first time in his reply

brief, we do not consider his arguments.      See Price v. Roark,

256 F.3d 364, 369 n.2 (5th Cir. 2001); United States v. Higdon,

832 F.2d 312, 313-14 (5th Cir. 1987).

     AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
