                               _____________

                                No. 95-3810
                               _____________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *   Appeal from the United States
                                     *   District Court for the
     v.                              *   District of Nebraska.
                                     *
John D. Behler,                      *
                                     *
           Defendant-Appellant.      *


                               _____________

                     Submitted:   April 8, 1996

                            Filed: November 18, 1996
                               _____________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.

     John D. Behler appeals his sentence after remand following his
conviction of four counts of federal drug trafficking crimes.   In his first
appeal, we affirmed Behler's convictions but remanded for resentencing on
three counts.   See United States v. Behler, 14 F.3d 1264, 1273 (8th Cir.),
cert. denied, 115 S. Ct. 419 (1994).     On remand, the district court held
a resentencing hearing and imposed a new sentence on those counts.   Behler
appeals, contending that the district court improperly restricted the scope
of the resentencing hearing, erred in its determination of the type of
methamphetamine involved in the conspiracy and distribution scheme, and
failed to fully apply the proper Sentencing Guidelines.         Behler also
contends that we should reverse his conviction for violating 18 U.S.C.
§ 924(c) (1988) (the firearms count), in light of the
Supreme Court's recent decision in Bailey v. United States, 116 S. Ct. 501
(1995).    We affirm in part and remand in part.


                                        I.


     From March 1, 1984, through May 16, 1989, John Behler was involved
in a drug trafficking scheme.      During that time, he made several trips to
Colorado to purchase methamphetamine.        Each time, he returned to Nebraska
with one to two ounces of methamphetamine, which he distributed to various
customers.     Behler was tried by a jury and convicted of the following
federal    drug     trafficking   crimes:      (I)   conspiracy      to    distribute
methamphetamine in violation of 21 U.S.C. § 846, extending from March 1,
1984, through May 16, 1989; (II) using or carrying a firearm in relation
to a drug trafficking offense in violation of 18 U.S.C. § 924(c); (III) use
of a telephone in furtherance of a drug felony in violation of 21 U.S.C.
§ 843(b); and (IV) distribution of methamphetamine in violation of 21
U.S.C. § 841(a)(1).        Behler, 14 F.3d at 1267.          At Behler's original
sentencing, the district court grouped counts I, III, and IV together,
imposing a 168-month concurrent sentence for each.          The court also imposed
a 60-month consecutive sentence for count II, the firearm charge.


     In Behler's first appeal, we affirmed his convictions, his sentence
on count II, and several sentencing determinations made by the district
court.    We vacated the sentences for counts I and IV and remanded them for
resentencing, concluding that the sentence on these counts was harsher
under the 1992 Guidelines in effect at the time of sentencing than it would
be under the 1987 version of the Guidelines in effect at the time of the
offense.   Behler, 14 F.3d at 1271.    The 1992 Guidelines provided alternate
methods of determining a base offense level for a given quantity of
methamphetamine -- using either the weight of the substance or mixture
containing    the    methamphetamine   or    the   actual   weight    of   only   the
methamphetamine itself, whichever results in the greatest




                                        2
offense level.        Id. at 1271.           By contrast, the 1987 version of the
Guidelines provided only one manner of calculating quantity, and this
method would have produced a lesser base offense for Behler.                   Id.    Thus,
we remanded for resentencing of these counts under the 1987 Guidelines.
We   also   vacated       the    sentence    for    count    III   and   remanded    it   for
resentencing, concluding that the 168-month term of imprisonment, which
resulted from grouping the closely related counts, exceeded the statutory
maximum term of imprisonment for that offense.                     Id. at 1273 n.6.       We
affirmed the district court's use of the preponderance of the evidence
standard    of    proof     to   determine    the    drug    quantity    involved    in   the
conspiracy.       Id. at 1272.       We affirmed the district court's reliability
determinations relating to witnesses whose testimony the district court
relied on in determining the amount of methamphetamine involved in the drug
conspiracy.      Id. at 1273.      We also affirmed the district court's imposition
of a three-level enhancement for Behler's role in the offense and a two-
level enhancement for obstructing justice.             Id.    Finally, we found no error
in the district court's ex parte discussion with the probation officer
during sentencing or the procedure of sealing the probation officer's
recommendation.       Id.


      On remand, the district court determined that our opinion precluded
it from revisiting the quantity determination (399 grams), the role in the
offense determination, the obstruction of justice enhancement, and the
issues involving the ex parte discussion with the probation officer and
sealing of the probation officer's recommendation.                 The district court held
resentencing hearings to allow both sides to present evidence concerning
the type of methamphetamine involved in the conspiracy and distribution
scheme and found by a preponderance of the evidence that the entire amount
consisted of dextro-methamphetamine (d-methamphetamine).                     The district
court rejected Behler's challenge to the five-year term of supervised
release.      Applying the 1987 Sentencing Guidelines, the district court
imposed a sentence of 108 months to




                                              3
run concurrently on counts I and IV, and a concurrent term of 48 months on
count III.   Behler appeals.


                                     II.


     Behler's   arguments   on   appeal    challenge   the    district   court's
interpretation of our prior opinion and application of the Sentencing
Guidelines on resentencing.      When reviewing a sentence, we review the
district court's factual findings for clear error and "give due deference
to the district court's application of the guidelines to the facts."          18
U.S.C. § 3742(e); United States v. McKinney, 88 F.3d 551, 556 (1996).


                                     A.


     Behler asserts that because we "vacated" his sentence on counts I and
IV, he should have been allowed a fresh opportunity to present any evidence
and argument on the enhancements or the quantity of methamphetamine
attributed to him.   "Once a sentence has been vacated or a finding related
to sentencing has been reversed and the case has been remanded for
resentencing, the district court can hear any relevant evidence on that
issue that it could have heard at the first hearing."          United States v.
Cornelius, 968 F.2d 703, 705 (8th Cir. 1992).      On remand, however, "all
issues decided by the appellate court become the law of the case," United
States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995), and the sentencing
court is bound to proceed within the scope of "any limitations imposed on
its function at resentencing by the appellate court."        Cornelius, 968 F.2d
at 705.


     In our prior opinion, we vacated Behler's sentence on counts I and
IV because we determined that it was harsher under the 1992 Guidelines in
effect at the time of sentencing, which the district court used to
determine Behler's sentence, than it would have been under the 1987
Guidelines in effect at the time of the offenses.




                                     4
See United States v. Bell, 991 F.2d 1445, 1452 (8th Cir. 1993) (holding
that an ex post facto violation occurs "if the defendant is sentenced under
the Guidelines in effect at the time of sentencing when those Guidelines
produce a sentence harsher than one permitted under the Guidelines in
effect at the time that crime is committed.")          Thus, we instructed, "we
remand those counts for resentencing consistent with United States v. Bell
and this opinion."     Behler, 14 F.3d at 1273.      In the opinion, we found no
error    in   and   specifically    affirmed   the   district   court's   quantity
determination and the enhancements imposed for role in the offense and
obstruction of justice.     Id. at 1272-73.


        Before resentencing Behler, the district court issued an order
detailing the scope of the resentencing hearing.       The court concluded that
resentencing under the 1987 Guidelines should proceed as follows:


        (1) using the determination of the amount of methamphetamine
        involved in the conspiracy, as found at the time of the
        original sentencing, (2) imposing a three-level enhancement for
        the defendant's role in the offense, (3) imposing a two-level
        enhancement for obstruction of justice, and (4) leaving
        undisturbed the conclusion that the matters of the discussion
        in chambers during the sentencing hearing and the sealing of
        the recommendation of the probation officer were without error.
        Other than that, there are no limitations imposed by the
        circuit court's opinion and I am at liberty and the parties are
        at liberty to proceed with the resentencing as if no sentencing
        had taken place on Counts I, III, and IV.


(Appellant's Addend. at 4.)        We conclude that the district court properly
interpreted our opinion and properly limited the scope of resentencing in
this case in accordance with our instructions.




                                          5
                                            B.


       At resentencing, the district court held an evidentiary hearing
requiring the government to prove what type of methamphetamine should be
attributed to Behler.          Both the government and Behler presented expert
testimony.   The government tested only about 4.5 grams (the amount seized)
of the total 399 grams attributed to Behler.             This 4.5 gram amount, Behler
concedes, tested to be d-methamphetamine.               The district court found that
it was more probable than not that the entire amount was d-methamphetamine.
Behler challenges the district court's finding, asserting that, except for
the amount seized at the time of Behler's arrest, the drugs were not d-
methamphetamine      but   a    mixture    of    dextro-levo-methamphetamine        (d,l-
methamphetamine).


       Under the Sentencing Guidelines, d-methamphetamine is sentenced more
harshly than l-methamphetamine, and "the government must prove that the
methamphetamine attributed to the defendant is more likely than not d-
methamphetamine."     United States v. Jennings, 12 F.3d 836, 838 & n.3 (8th
Cir. 1994); see USSG § 2D1.1.             When the government seizes and tests an
amount of a controlled substance that is less than the whole for which the
defendant is responsible, the sentencing court is permitted to infer from
these samples that the whole quantity attributable to the defendant
contained the same substance.        See United States v. Koonce, 884 F.2d 349,
353 n.5 (8th Cir. 1989).        We will not reverse the district court's finding
that   the   methamphetamine       involved       was    more   likely   than     not   d-
methamphetamine unless it is clearly erroneous.            Jennings, 12 F.3d at 838.


       In this case, the district court did not clearly err by concluding
that   the   whole   amount     should     be    categorized    and   sentenced    as   d-
methamphetamine.      There is no evidence in this record that the substance
was d,l-methamphetamine.         Nonetheless, even assuming that the controlled
substance was the mixture or




                                             6
substance d,l-methamphetamine as Behler contends, there is no sentencing
error because the calculation would not change.


     In a note defining "Controlled Substances and Quantity," the 1987
Sentencing Guidelines provide as follows:


     The scale amounts for all controlled substances refer to the
     total weight of the controlled substance. Consistent with the
     provisions of the Anti-Drug Abuse Act, if any mixture of a
     compound contains any detectable amount of a controlled
     substance, the entire amount of the mixture or compound shall
     be considered in measuring the quantity.     If a mixture or
     compound contains a detectable amount of more than one
     controlled substance, the most serious controlled substance
     shall determine the categorization of the entire quantity.


USSG § 2D1.1 n.* (Oct. 1987).   Since d,l-methamphetamine is a mixture or
substance containing both l-methamphetamine and the more serious substance
of d-methamphetamine,1 this more serious controlled substance determines
the category of the whole quantity for sentencing purposes.   See Decker,
55 F.3d at 1512-13 (holding d,l-methamphetamine is a mixture or substance
the entire weight of which should be sentenced as d-methamphetamine).
Accordingly, the district court did not clearly err in sentencing Behler
under the provisions for d-methamphetamine.




     1
      There is some dispute among the circuits concerning whether
d,l-methamphetamine is merely a mixture of d-methamphetamine and l-
methamphetamine or a separate, singular substance. Compare United
States v. Carroll, 6 F.3d 735, 743 (11th Cir. 1993), cert. denied,
510 U.S. 1183 (1994) (noting there are three distinct forms of
methamphetamine -- d-methamphetamine, l-methamphetamine, and d,l-
methamphetamine), with United States v. Bogusz, 43 F.3d 82, 89 n.
10 (3d Cir. 1994), cert. denied, 115 S. Ct. 1812 (1995) (holding
d,l-methamphetamine is not a separate compound but only a mixture
of the two). We find this dispute to be immaterial to our analysis
for reasons explained above and by other courts. See United States
v. Decker, 55 F.3d 1509, 1512 & n.7, 1513 (10th Cir. 1995); see
also United States v. Watkins, 912 F. Supp. 417, 418-20 (E.D. Ark.
1996).

                                    7
                                           C.


      Behler argues that the district court's refusal to reconsider the
quantity    determination     violated     the   Ex   Post   Facto   Clause   of   the
Constitution.   Specifically, Behler contends that he should be attributed
a lesser quantity determination on the distribution and conspiracy charges
because, under the 1987 Guidelines, the district court would have been free
to   consider   his   state   of    mind   and   thus   to   disregard   amounts    of
methamphetamine that he purchased for or diverted to his own personal use.
Behler also contends that he would have received more favorable rulings
with respect to the sentencing enhancements under the 1987 Guidelines, but
the district court erroneously refused to reconsider them on remand.


      Behler did not raise these ex post facto arguments in his first
appeal.    Our determination in the first appeal that there was no error in
the district court's calculation of the quantity attributable to Behler or
with respect to the sentencing enhancements is now the law of the case.
See Bartsh, 69 F.3d at 866.        Furthermore, even if the district court should
have considered Behler's state of mind and did not, this would not have
affected the drug quantity determination in this particular case.
      Behler is correct in his assertion that the 1987 Guidelines required
generally, that "[t]o determine the seriousness of the offense conduct,"
the sentencing court must consider "the defendant's state of mind or motive
in committing the offense of conviction."         USSG § 1B1.3(a)(2) (Oct. 1987).
This scienter requirement was subsequently eliminated from the Guidelines.
See United States v. Lam Kwong-Wah, 924 F.2d 298, 304 (D.C. Cir. 1991).
The quantity determination in this case, however, was derived solely from
Behler's own purchases.       Behler's state of mind cannot yield a quantity
determination in conflict with his own conduct.              He made the trips to
Colorado, he purchased the methamphetamine, and he brought it back to
Nebraska to distribute it.         See Behler,




                                           8
14 F.3d at 1266-67.   In other words, Behler was not held accountable for
any quantities of methamphetamine that were brought to the conspiracy by
some other conspirator, unknown or unforeseeable to Behler.


     Behler contends, however, that amounts he diverted to his own
personal use were not intended for distribution and for this reason should
not have been counted in the quantity determination.    We disagree.   While
Behler's purchases for personal use may not be sufficient to establish that
he was a member of the conspiracy, once the conspiracy and his membership
in it has been established (as in this case), then those amounts are
relevant to determining the quantity of controlled substances that the
defendant knew the conspiracy distributed.     United States v. Fregoso, 60
F.3d 1314, 1328 (8th Cir. 1995) (citing United States v. Innamorati, 996
F.2d 456, 492 (1st Cir.), cert. denied, 510 U.S. 955 (1993)).   We conclude
that there is no ex post facto violation in the district court's quantity
determination.


     We have already concluded that the district court did not err by
refusing to reconsider the Guideline enhancements for role in the offense
or obstructing justice.   In any event, Behler has given no indication how
the 1987 Guidelines would have changed the district court's application of
the role-in-the-offense enhancement or our affirmance of this issue in the
first appeal.    As to the obstruction of justice enhancement, Behler
contends that the 1987 Guidelines would have given him the benefit of the
following favorable standard:   "suspect testimony and statements should be
evaluated in a light most favorable to the defendant."       USSG § 3C1.1,
comment. (n.2) (Oct. 1987).     Under the Guidelines applicable at the time
of his original sentencing, the commentary stated, "false testimony or
statements by the defendant . . . should be evaluated in a light most
favorable to the defendant."     USSG § 3C1.1, comment. (n.1) (Nov. 1992).
While there was undoubtedly a change in this guideline, the change does not
affect




                                      9
Behler because he would not have been entitled to this standard under
either   version of the Guidelines.       The standard enunciated in this
commentary applies when a defendant has given false or suspect statements
or testimony.    We have held that this commentary simply does not apply to
a situation where the defendant is charged with obstructing justice by
threatening a witness.     See United States v. Capps, 952 F.2d 1026, 1029
(8th Cir. 1991) (holding this commentary does not apply when the alleged
obstruction consists of threats against witnesses rather than testimony or
statements), cert. denied, 504 U.S. 990 (1992).    Accordingly, Behler's ex
post facto argument fails on the enhancements as well.


                                     D.


     Behler also contends that the district court erred by sentencing him
to five years of supervised release and not applying the 1987 Guidelines
for the supervised release determination.      The October 1987 supervised
release guideline designates only a three-year term of supervised release
"for a defendant convicted of a Class A or B felony."   USSG § 5D3.2(b)(1).
In December 1987, however, Congress amended this by public law to provide
for a five-year term of supervised release for a Class A or B felony, and
the Guidelines reflected this change by January 15, 1988.


     While we generally adhere to a "one book" rule in applying the
Guidelines, United States v. Cooper, 63 F.3d 761, 762 (8th Cir. 1995),
cert. denied, 116 S. Ct. 1548 (1996), as Behler urges us to do, we cannot
do so with a blind eye to an existing statutory amendment that lengthens
the sentence.    The 1987 Guidelines provide that "[i]f application of the
guidelines results in a sentence below the minimum sentence required by
statute, the statutory minimum shall be the guideline sentence."       USSG
§ 5G1.1(b).     The congressional enactment, effective while Behler's crime
was still occurring, trumps the written Guidelines in effect at the time.
See United States v. Stoneking, 60 F.3d 399, 402 (1995) (en banc),




                                     10
cert. denied, 116 S. Ct. 926 (1996).         Accordingly, we reject Behler's
argument that he should only receive a three-year term of supervised
release.


                                    III.


     Finally, Behler contends that his conviction on the firearms count,
18 U.S.C. § 924(c), should be vacated in light of Bailey v. United States,
116 S. Ct. 501 (1995), decided by the Supreme Court after Behler's
resentencing but before this appeal.     We must first determine whether the
issue is properly before us in this appeal.      We conclude that it is.


     Our cases indicate that in situations where the defendant was tried
and sentenced before the Supreme Court decided Bailey, the Bailey issue is
properly preserved for our direct appeal review only where the issue was
raised in some way at trial or where the defendant's initial brief argued
that the firearms conviction was in some way infirm.    See United States v.
Herron, 97 F.3d 234, 237 n.4 (8th Cir. 1996) (issue properly raised in
initial appeal brief); United States v. Willis, 89 F.3d 1371, 1378 n.3 (8th
Cir.) (issue properly raised by challenging the sufficiency of the evidence
on 924(c) conviction), cert. denied, 117 S. Ct. 273 (1996); United States
v. Webster, 84 F.3d 1056, 1065 n.6 (8th Cir. 1996) (issue properly raised
in initial appeal brief); United States v. McKinney, 79 F.3d 105, 109 (8th
Cir. 1996) (not preserved because defendant did not challenge § 924(c)
instruction or our previous cases at trial, and initial appeal brief did
not argue that firearms conviction was in any way infirm).


     In Behler's initial direct appeal, he challenged the sufficiency of
the evidence on his § 924(c) conviction.     We fully considered his argument
and held that the evidence was "more than sufficient" to support his
conviction on the firearms count.          Behler, 14 F.3d at 1271.    After
affirming both his conviction and




                                    11
his sentence on the § 924(c) count, we remanded for resentencing on only
those sentencing issues discussed above.      The firearms count was not
subject to further litigation on resentencing.   Two months after Behler's
resentencing, however, the Supreme Court decided Bailey.       Behler then
raised the Bailey issue in his resentencing appeal brief which was his
first opportunity to connect the Bailey issue to his previously raised
sufficiency of the evidence challenge to the § 924(c) conviction.   In this
unusual circumstance, we conclude that Behler properly preserved the
issue.2


      The district court instructed the jury that it could find the
defendant guilty of the firearms count if the defendant either "carried"
or "used" the firearm and "the carrying or use of the firearm was during
and in relation to" the drug trafficking crime. (Appellant's Reply Br. at
4.)   The court separately defined the phrase "used a firearm" to mean
"having a firearm available to aid in the commission of the crime."   (Id.)
The court did not separately define the term "carry."   Because Behler did
not object to this instruction as given, we may reverse only if the
district court committed plain error under the law as it exists at the time
of this appeal.   Webster, 84 F.3d at 1066-67.   See also United States v.
Olano, 507 U.S. 725 (1993) (plain error standard).




      2
      Our affirmance of Behler's § 924(c) conviction in his initial
appeal became the law of the case.        "Under this doctrine, a
decision in a prior appeal is followed in later proceedings unless
a party introduces substantially different evidence, or the prior
decision is clearly erroneous and works a manifest injustice."
Bartsh, 69 F.3d at 866 (internal quotations omitted). We decline
to apply the law of the case doctrine to this issue because we
determine that to do so would be clear error and would work a
manifest injustice in light of the current law as enunciated by the
Supreme Court in Bailey. The "`law of the case' doctrine does not
apply when an intervening decision from a higher tribunal renders
a prior determination erroneous." Uhl v. Swanstrom, 79 F.3d 751,
755 (8th Cir. 1996).

                                    12
     The     government   concedes   that    the   district   court's    instruction
defining    the phrase "used a firearm" amounts to plain error.                  The
government argues, however, that the error is harmless beyond a reasonable
doubt because the jury was also instructed that the defendant may be found
guilty of carrying a firearm.


     The failure to define "carry," a term with a plain and clear meaning,
is not error.     We have held that where the defendant fails to offer an
instruction defining "carry," "the ordinary meaning of the word should
apply."    Willis, 89 F.3d at 1378.     We have listed the various dictionary
definitions of "carry," see United States v. White, 81 F.3d 80, 83 (1996),
and we need not reiterate them here.        Nevertheless, because we do not know
whether the jury agreed to convict Behler for "using" a firearm or for
"carrying" a firearm, we cannot say that the instructional error is
harmless in this case.3       The record does not demonstrate that Behler
engaged in active employment of a firearm, which is how Bailey defines
"use."     We conclude that the plain error in this case affected Behler's
substantial rights, because "[t]he instruction as given was erroneous with
regard to an essential element of the crime, that is, the definition of
`use.'"    United States v. Caldwell, No. 95-3701, 1996 WL 566842 at *5 (8th
Cir. Oct. 7, 1996).


     There is sufficient evidence in the record to satisfy the carry prong
of § 924(c).    In our prior opinion, we stated as follows:             "Wiegert and
Houston both testified that Behler always carried a .44 magnum handgun with
him on the trips to Colorado and everywhere else he went with the drugs.
Weigert stated that Behler called the gun `his protection.'"              Behler, 14
F.3d at 1270-71.    Weigert and Houston also testified that Behler either
carried the gun hidden in his coat pocket, see White, 81 F.3d at 83
(holding




     3
      Unlike White, where the defendant was convicted only on the
"carry" prong, here the defendant's indictment charged both
methods, and the single instruction submitted both alternatives but
was defective as to the "use" alternative.

                                       13
that to bear a firearm on or about one's person satisfies the "carry"
prong); or had it in his car when he went to Colorado to purchase the
methamphetamine, see Willis, 89 F.3d at 1379 (transporting firearms in a
passenger   compartment   of   vehicle    loaded   with   controlled   substances
satisfies the "carry" prong); United States v. Freisinger, 937 F.2d 383,
387 (8th Cir. 1991) (same).      We are satisfied that the record contains
sufficient evidence from which a properly instructed jury could have
convicted Behler under the "carry" prong of § 924(c).           Accordingly, we
reverse the conviction on the § 924(c) count for instructional error and
remand count II for a new trial consistent with this opinion.          Should the
government decide to dismiss count II to avoid another trial or if the
defendant is acquitted on this count, we provisionally vacate the sentence
on the drug counts (I and IV) so that the district court may consider
whether Behler's sentence on the drug counts should be enhanced under USSG
§ 2D1.1(b)(1) (Oct. 1987).     See Caldwell, 1996 WL 566842, at *7.        If the
defendant is convicted of count II on remand, the sentence on counts I and
IV is affirmed.


                                     IV.


     We have considered Behler's remaining arguments and find them to be
without merit.    Accordingly, we reverse and remand on count II, and we
otherwise affirm the judgment of the district court, except to the extent
it may be necessary for the district court to resentence on counts I and
IV as provided above.


     A true copy.


            Attest:


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




                                         14
