247 F.3d 1247 (D.C. Cir. 2001)
United States of America, Appelleev.Jerome Young, a/k/a Akbar Muhammed, Appellant
No. 00-3007
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2001Decided May 11, 2001

Appeal from the United States District Court  for the District of Columbia  (No. 89cr00387-02)
A. J. Kramer, Federal Public Defender, argued the cause  and filed the briefs for appellant.
Thomas S. Rees, Assistant U.S. Attorney, argued the cause  for appellee. With him on the brief were Wilma A. Lewis,  U.S. Attorney at the time the brief was filed, John R. Fisher,  Mary-Patrice Brown and John Phillip Dominguez, Assistant  U.S. Attorneys.
Before:  Henderson, Randolph, and Garland, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
In this appeal, Jerome Young  challenges a criminal sentence he received in 1991 for conspiracy to manufacture and distribute phencyclidine (PCP). Although Young did not appeal from this sentence when it  was first imposed, he now seeks a sentence reduction based  on a subsequent amendment to the United States Sentencing  Guidelines (U.S.S.G.).  The district court denied Young's  motion, concluding that the amendment did not affect the  manner in which Young's sentence was calculated.  We agree  and therefore affirm.


2
* On December 4, 1989, Young pled guilty to one count of  conspiring to manufacture and distribute 100 grams or more  of pure PCP, in violation of 21 U.S.C. §§ 846 and  841(b)(1)(A)(iv), and to one count of using or carrying a  firearm in relation to a drug trafficking crime, in violation of  18 U.S.C.  924(c).  Judgment at 1.  Young's initial sentencing hearing occurred on February 26, 1990.  The presentence  report (PSR) stated that Young and a co-conspirator were  engaged in a PCP manufacturing operation, the first stage of  which had produced a quantity of piperidino cyclohexanecarbonitrile (PCC).1 The report stated--as  Young had acknowledged during his plea hearing--that at the  time of his arrest Young was in a van, travelling to a location  where he could acquire a quantity of phenylmagnesiumchloride (PMC), a chemical he planned to use to convert the PCC  into PCP.  1990 PSR p 12;  Change of Plea Tr. at 23, 28-32. The police stopped the van, arrested Young, and seized 682  grams of PCC crystals, a bottle containing 35 grams of pure  PCP, and a Walther PPK handgun.  According to the presentence report, the 682 grams of PCC, when combined with PMC, would have yielded 862 grams of pure PCP.  1990 PSR  p 13.2


3
The presentence report calculated the weight of the controlled substance involved in Young's crime by adding the 35  grams of pure PCP seized from Young to the 862 grams of  pure PCP that could have been manufactured from the PCC  in his possession, producing a total of 897 grams of pure PCP. 1990 PSR p 22;  see United States v. Young, 89-CR-00307-02,  slip op. at 2 (D.D.C. Dec. 15, 1999).  The Drug Quantity Table  of Sentencing Guideline  2D1.1(c) specified a base offense  level of 34 for a "mixture or substance" containing 300-1000  grams of pure PCP.  See U.S.S.G.  2D1.1(c) (1989);  id. at  n.*.  To this, the district court applied a two-level upward  adjustment for use of a special skill, U.S.S.G.  3B1.3 (1989),  and a two-level downward adjustment for acceptance of responsibility, U.S.S.G.  3E1.1(a) (1989), leaving Young's offense level unchanged at 34.  1990 Sentencing Tr. at 6, 24. Based on that offense level, and on the presentence report's  calculation of Young's criminal history category, the district  court sentenced Young to 188 months' imprisonment on the  PCP charge and to a mandatory consecutive term of 60  months on the firearm charge.  1990 Sentencing Tr. at 24-26.


4
Defendant agreed with the presentence report's description  of his offense conduct, and objected neither to the finding  that his crime involved 897 grams of pure PCP, nor to the  conclusion that this produced a base offense level of 34.  1990  PSR p 18;  id. at 16.  He did object, however, to the two-level  upward adjustment for use of a special skill, and ultimately  prevailed on that point on appeal.  See United States v. Young, 932 F.2d 1510, 1515 (D.C. Cir. 1991).  When the  district court resentenced Young on December 18, 1991, the  presentence report again stated that he had been arrested  with 35 grams of pure PCP and 682 grams of PCC, and that  the latter would have produced 862 grams of pure PCP.  1991  PSR p 13.  Based on a combined total of 897 grams of pure  PCP, the district court again--and again without objection-assigned Young a base offense level of 34 and applied a twolevel downward adjustment for acceptance of responsibility. 1991 PSR pp  22, 27.  Young was sentenced to 150 months'  imprisonment on the PCP count and to 60 consecutive months  on the firearm count.3  He did not file a direct appeal from  the resentencing.

II

5
On November 24, 1998, Young filed a motion to reduce his  1991 sentence with the same district judge who had sentenced  him twice before.  The motion was filed pursuant to 18 U.S.C.   3582(c)(2), which permits a court to modify a term of  imprisonment "in the case of a defendant who has been  sentenced ... based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Young asserted that his sentence should be reduced because  of Guideline Amendment 484, which, effective November 1,  1993, altered Application Note 1 to U.S.S.G.  2D1.1.  At the  time of Young's 1991 resentencing,4 Application Note 1 stated:  " 'Mixture or substance' as used in this guideline has the  same meaning as in 21 U.S.C.  841."  U.S.S.G.  2D1.1,  comment., n.1 (1991).  Amendment 484, in relevant part,  added that "[m]ixture or substance does not include materials  that must be separated from the controlled substance before  the controlled substance can be used."  U.S.S.G. app. C,  amend. 484.  The amendment went on to note that "[e]xamples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue,  and waste water from an illicit laboratory used to manufacture a controlled substance."  Id.


6
Young argued to the district court that, pursuant to  Amendment 484, the weight of the PCC should not have been  used in determining his offense level.  As support, he cited  commentary to the amendment which, he contended, clarifies  that the term "mixture or substance" does not include the  weight of "chemicals seized before the end of processing  [that] are not usable in that form because further processing  must take place before they can be used."  U.S.S.G. app. C,  amend. 484, comment.  The PCC at issue in this case, he  claimed, was such a chemical.


7
The district court denied Young's motion on two grounds. First, the court held that Amendment 484 does not apply to  PCC because PCC is not a material that, in the amendment's  words, "must be separated" from PCP before PCP can be  used.  The commentary's reference to seized chemicals, the  court concluded, refers to waste byproducts of the manufacture of a controlled substance and not to precursor chemicals  like PCC.  Young, slip op. at 3-4.


8
Second, the district court held that Amendment 484 would  not reduce Young's sentence in any event, because the court  had not sentenced Young under the provision altered by  Amendment 484--namely, Application Note 1 to Guideline   2D1.1.  Rather, Young had been sentenced under Application Note 12, which applies when the amount of drugs seized  does not reflect the scale of the offense.  The court said that,  in applying the latter note, it had based Young's sentence not  on the amount of PCP or PCC he possessed, but rather on his  capacity to produce a total of 897 grams of pure PCP. Accordingly, whatever changes were wrought by Amendment  484, they were inapplicable to Young's case.  Young, slip op.  at 5.

III

9
The parties are in accord that the issue presented in this  case is a legal one, and hence subject to our de novo review. See United States v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000). As we conclude that the district court's judgment was correct  even on that standard, we need not consider whether a more  deferential standard of review would be appropriate.  See id.  (describing applicable standards of review in Guidelines  cases).  Moreover, because we agree with the district court's  second rationale--that Young was not sentenced under a  provision affected by Amendment 484--we also need not  consider whether that amendment excludes the weight of a  precursor chemical like PCC from the weight of the "mixture  or substance" to which the Drug Quantity Table of  2D1.1(c)  applies.


10
The Drug Quantity Table of Guideline  2D1.1(c) establishes the base offense level that corresponds to the weight  and kind of controlled substance involved in a defendant's  offense.  As provided in the guideline, "[u]nless otherwise  specified, the weight of a controlled substance set forth in the  table refers to the entire weight of any mixture or substance  containing a detectable amount of the controlled substance." U.S.S.G.  2D1.1(c), n.*.  The guideline further provides that  "[i]n the case of a mixture or substance containing PCP," the  court should "use the offense level determined by the entire  weight of the mixture or substance, or the offense level  determined by the weight of the [pure] PCP ..., whichever is  greater."  Id. (emphasis added).


11
Prior to its 1993 amendment,  2D1.1 did not define "mixture or substance," other than to state, in Application Note 1, that the term "has the same meaning as in 21 U.S.C.  841." That statute establishes penalties for crimes involving "mixture[s] or substance[s]" containing specified narcotics, but  also does not define the term.  The effect of Amendment 484  is to clarify that, in using the Drug Quantity Table, the  sentencing court is to exclude from the weight of the "mixture  or substance" any "materials that must be separated from the  controlled substance before the controlled substance can be  used."  U.S.S.G. app. C, amend. 484.  Hence, if the court had  sentenced Young based on the weight of a mixture containing  both PCP and PCC, and in doing so had included the weight  of the PCC, it would be necessary to determine whether PCC  is the kind of material whose exclusion is required by Amendment 484.


12
But it is clear from both the district court's statements and  the presentence report that the court did not sentence Young  based on the weight of a mixture containing both PCP and  PCC.  Rather, he was sentenced based on the weight of a  quantity of pure PCP.  See Young, slip op. at 2;  1991 PSR  p 13.  That quantity consisted of the 35 grams of pure PCP  seized at the time of his arrest, plus the 862 grams of pure  PCP that could have been produced from the amount of PCC  also in Young's possession.  The resulting total of 897 grams  of pure PCP corresponds to an offense level of 34, as set forth  in the Drug Quantity Table.  See  2D1.1(c)(5) (specifying  offense level of 34 for offense involving 300-1000 grams of  pure PCP).


13
As the district court stated, and as the defendant himself  conceded below, the court calculated the amount of pure PCP  involved in Young's offense not by using Application Note 1 to   2D1.1, but rather by using Application Note 12.  Young,  slip op. at 5 ("[T]he use of Note 12 was the basis of Young's  sentence calculation in this case.");  Def.'s Resp. to Gov't's  Opp'n to Mot. to Modify Sentence at 2 ("[W]hen this Court  initially sentenced the defendant, it determined his offense  level by approximating the quantity of PCP that could be  produced from the 682 grams of precursor chemical, PCC....  See  2D1.1, Application Note 12.").  Under that  note, "[i]f the amount seized does not reflect the scale of the  offense," the court is directed to use Application Note 2 to   2D1.4.  Application Note 2, in turn, instructs the court to  "approximate the quantity of the controlled substance," and  provides that, in doing so, the court "may consider, for  example, ... the size or capability of any laboratory involved."  U.S.S.G.  2D1.4, comment., n.2.


14
The undisputed facts of this case established that the  amount of pure PCP seized from Young, 35 grams, did not  reflect the scale of the offense to which he pled guilty: conspiracy to manufacture and distribute 100 grams or more  of pure PCP.  See Judgment at 1.  The evidence--which  included Young's acknowledgment that he had been en route  to obtain the chemicals needed to convert the PCC he had on  hand into PCP, see Change of Plea Tr. at 23--established  that Young was conspiring to manufacture considerably more  than those 35 grams.  Accordingly, as the district court later  explained, it applied Application Note 12 and considered the  capability of Young's operation, which in this case was evidenced by the amount of PCC found in his possession.  See  Young, slip op. at 2, 5.  The court used that amount to  approximate the quantity of the controlled substance Young  was conspiring to manufacture:  pure PCP.  And it was that  quantity--the quantity of pure PCP involved--that dictated a  base offense level of 34.  See U.S.S.G.  2D1.1(c)(5) & n.*.


15
As this recitation makes clear, the district court did not  include the weight of the PCC in the weight of the "mixture  or substance" that was used to determine Young's sentence. Hence, neither Application Note 1 nor Amendment 484 applies.  Instead, employing Application Notes 12 and 2, the  court used the amount of PCC seized from Young as evidence  of the amount of pure PCP involved in Young's manufacturing conspiracy.5  Courts may rely on the amount of precursor


16
chemicals found in order to "approximate the quantity of the  controlled substance" involved in a manufacturing operation. U.S.S.G.  2D1.4, comment., n.2.  See, e.g., United States v.  Smith, 240 F.3d 927, 930-31 (11th Cir. 2001);  United States  v. Becker, 230 F.3d 1224, 1234-36 (10th Cir. 2000);  United  States v. Allison, 63 F.3d 350, 352-53 (5th Cir. 1995);  United  States v. Basinger, 60 F.3d 1400, 1409-10 (9th Cir. 1995); United States v. Evans, 891 F.2d 686, 687-88 (8th Cir. 1989). Indeed, Application Note 2's reference to "the size or capability of any laboratory involved" is listed merely as an "example" of the kind of evidence a court may consider in determining the amount of the controlled substance that was the  object of an incomplete conspiracy.  U.S.S.G.  2D1.4, comment., n. 2.6  As we have previously held, testimony about a  conspirator's intentions alone, even without physical evidence,  may be sufficient to establish the amount of drugs contemplated as the object of a conspiracy.  See United States v.  Lam Kwong-Wah, 924 F.2d 298, 305-06 & n.4 (D.C. Cir.  1991).  Where there is physical evidence, the case is that  much stronger.


17
In sum, the district court did not include the seized PCC in  determining the weight of a "mixture or substance" under  Application Note 1 to  2D1.1, but instead used the PCC as  evidence to calculate the weight of pure PCP that was the  object of Young's conspiracy, as prescribed by Application  Note 12 to  2D1.1 and Application Note 2 to  2D1.4.  As  defendant conceded at oral argument, the latter notes were  unaffected by Amendment 484.  See Allison, 63 F.3d at 353  (holding that "Amendment 484 does not speak to the situation  in which the district court is sentencing the defendant based  on the size and capability of the laboratory involved").  For  that reason, Young's motion to reduce his sentence pursuant  to 18 U.S.C.  3582(c) must fail.  That statute provides, in  relevant part, that a court "may not modify a term of  imprisonment once it has been imposed[,] except that" the  court may reduce a prison term "in the case of a defendant  who has been sentenced ... based on a sentencing range that  has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable  policy statements issued by the Sentencing Commission."  18  U.S.C.  3582(c) (emphasis added).  To implement that provision, the Sentencing Commission promulgated Guideline   1B1.10, which contains a list of guideline amendments and  states that "[i]f none of the amendments listed ... is applicable, a reduction in the defendant's term of imprisonment  under 18 U.S.C.  3582(c)(2) is not consistent with this policy  statement and thus is not authorized."  U.S.S.G.  1B1.10(a),  p.s. (2000).  Although Amendment 484 is included in the list  of amendments, because the amendment is not applicable to  Young's case, 18 U.S.C.  3582(c)(2) does not authorize a  reduction in his sentence.

IV

18
Young raises a number of additional challenges to his  sentence, based not on Amendment 484 but on asserted  deficiencies in the court's application of unamended provisions  of  2D1.1 and  2D1.4.7  In light of the foregoing, it is plain that those challenges cannot succeed either.  As the Sentencing Commission stated in its commentary to  1B1.10, when  adjudicating a motion based on  3582(c)(2), all "guideline  application decisions remain unaffected" other than those  subject to the listed amendments.  U.S.S.G.  1B1.10, p.s.,  comment., n.2 (2000);  see United States v. Bravo, 203 F.3d  778, 780-81 (11th Cir. 2000);  United States v. Wyatt, 115 F.3d  606, 609 (8th Cir. 1997).  Because Young does not allege that  his additional challenges are grounded upon Amendment 484,  or upon any other amendment to the Guidelines, we have no  cause to consider them further.

V

19
The district court's denial of defendant's motion to modify  his sentence is


20
Affirmed.



Notes:


1
 See generally United States v. Gates, 807 F.2d 1075, 1078 (D.C.  Cir. 1986) (describing PCP manufacturing process).


2
 The district court's opinion attributes this calculation to the  Drug Enforcement Agency chemist who analyzed the seized chemicals.  United States v. Young, 89-CR-00307-02, slip op. at 2  (D.D.C. Dec. 15, 1999).  We also note that at Young's plea hearing,  the government stated and Young accepted that the seized PCC, if  fully processed, would have yielded 831 grams of pure PCP.  The  record does not reveal why the weight listed in Young's PSR is  different from that stated during the plea hearing, but Young has  alleged neither that the PSR's determination was erroneous nor  that the difference adversely affected his sentence.


3
 During his resentencing, Young challenged the criminal history  category used in his 1990 sentencing proceeding.  Although Young  had not raised that issue during the appeal from his 1990 sentence,  the government and district court agreed that Young's criminal  history category had been miscalculated, and the court used a  recalculated criminal history category to determine the appropriate  sentence.


4
 "Under  1B1.11 of the Guidelines, ... resentencing occurs  under the version of the Guidelines in effect at the time of resentencing unless such an application would violate the ex post facto  clause of ... the Constitution."  United States v. Clark, 8 F.3d 839,  844 (D.C. Cir. 1993).  There are, in any event, no substantive  differences between the 1989 and 1991 versions of the guidelines  applicable to Young's sentence.  From this point forward, all references will be to the 1991 version unless otherwise noted.


5
 See Young, slip op. at 2 ("When the defendant was first sentenced the court determined his offense level by approximating the  quantity of PCP that could be produced from 682 grams of PCC."); id. at 5 ("Young could have easily produced 862 grams of pure PCP  with the PCC crystals he had already made once he obtained the  necessary [PMC]....  Young's production capability was the basis  of his sentence.");  see also Young Br. at 12-13 (conceding that "the  district court did not directly use the weight of the PCC in  determining [Young's] offense level," but that the weight of PCC  was used to determine the quantity of pure PCP "supposedly  capable of being produced from the PCC").


6
 In 1991, Note 2 was an application note to  2D1.4, which  provided that "if a defendant is convicted of a conspiracy ... to  commit any offense involving a controlled substance, the offense  level shall be the same as if the object of the conspiracy ... had  been completed."  U.S.S.G.  2D1.4.  The Sentencing Commission  deleted  2D1.4 in 1992, and moved the relevant text of Note 2 to  Application Note 12 of  2D1.1.  See U.S.S.G. app. C, amend. 447; United States v. Ynfante, 78 F.3d 677, 680-81 (D.C. Cir. 1996)  (holding that amended Note 12 applies to choate as well as inchoate  offenses).


7
 The principal deficiency Young asserts is that the district court  should have calculated the weight of PCP involved in his offense by  using the Drug Equivalency Table, U.S.S.G.  2D1.1, comment.,  n.10, rather than by using either Application Note 1 or 12 to   2D1.1.


