UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 99-4634

NEWTON COCKERILL, a/k/a Poochie,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-98-524-DWS)

Submitted: May 16, 2000

Decided: June 28, 2000

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Rene Josey, United States Attorney, Jane B. Taylor,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Newton Cockerill appeals the 200-month sentence imposed by the
district court after his guilty plea to conspiracy to possess metham-
phetamine with intent to distribute, 21 U.S.C.A.§ 846 (West 1999)
(Count One), and distribution of methamphetamine, 21 U.S.C.A.
§ 841(a) (West 1999) (Count Seven). Cockerill contends that the dis-
trict court plainly erred in using the base offense level for one to three
kilograms of "actual" methamphetamine rather than the level for a
methamphetamine mixture, see U.S. Sentencing Guidelines Manual
§ 2D1.1(c) (1998). He further claims that the court both plainly erred
and violated the Ex Post Facto Clause by using the 1998 Guidelines
Manual in sentencing him. Cockerill has also requested leave to file
a pro se supplemental brief.1 We now grant his motion to submit a
supplemental brief. Having considered all the issues raised, and find-
ing no error, we affirm the sentence imposed by the district court.

In February 1998, Cockerill helped an informant buy sixty grams
of methamphetamine from Thomas Secor. Cockerill was later charged
with participating in a methamphetamine conspiracy with Secor,
Anderson Benenhaley, and others, from 1994 to 1998, and with the
February 1998 distribution of methamphetamine to the informant.
Cockerill pled guilty in October 1998. As required by his plea agree-
ment, he took a polygraph test in April 1999 in which he denied any
involvement with a purchase of methamphetamine in California by
Benenhaley and Secor in July 1996. The test results indicated that
Cockerill had been deceitful. After the test, Cockerill was interviewed
by two federal agents and admitted that he had a part in the California
methamphetamine purchase. Subsequently, Secor testified at Benen-
haley's trial that, in July 1996, Cockerill offered to pay him $5000 to
drive to California and bring back methamphetamine that Benenhaley
_________________________________________________________________
1 Before Cockerill submitted his brief, he requested permission to file
a pro se brief of 120 pages. We responded that his brief should not
exceed 50 pages. Without waiting to receive a response, however, Cock-
erill submitted a pro se brief of 115 pages plus exhibits. Despite his fail-
ure to comply with the limit, we have considered all the issues he raised
and find that none of them has merit.

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planned to buy. Secor refused to go for less than $7500, and Cockerill
told him Benenhaley would pay him the extra $2500. Secor then
drove Benenhaley to California and transported the methamphetamine
to South Carolina while Benenhaley flew back. On his return, Secor
received a small portion of the methamphetamine and was paid by
Benenhaley and Cockerill. (JA-I at 108-110, 116). He described the
methamphetamine as, "the good stuff," by which he meant that "[i]t
is undiluted, unadulterated. It is not cut. It is pure."

In the presentence report, the sixty grams of methamphetamine
sold to the informant in February 1998 and the 1.8 to 2.2 kilograms
of pure methamphetamine purchased by Benenhaley in California in
1996 were attributed to Cockerill, giving him an offense level of 36.
(JA-II at 205-06). Cockerill objected to the offense level, stating that
he "was not involved in any way in obtaining drugs, via a trip to Cali-
fornia, which involved Anderson Benenhaley and David Secor."
However, at the sentencing hearing, he admitted his involvement in
the California purchase and withdrew his objection. The district court
adopted the probation officer's recommended findings and guideline
range.

Cockerill now claims that the district court committed plain error
in calculating the offense level based on the assumption that the
methamphetamine Benenhaley purchased in California in 1996 was
pure methamphetamine rather than a methamphetamine mixture. The
Drug Quantity Table provides that, for offenses involving metham-
phetamine, the offense level is determined by the weight of the pure
methamphetamine--described in § 2D1.1 as methamphetamine
(actual)--or by the entire weight of a mixture containing metham-
phetamine, whichever is greater. See USSG§ 2D1.1(c), Note *(B).
However, the base offense level for 1 to 3 kilograms of methamphet-
amine (actual) is 36, while the base offense level for 1.5 to 5 kilo-
grams of methamphetamine mixture is 34. See USSG § 2D1.1(c).
Cockerill argues that Secor's testimony was insufficient evidence that
pure methamphetamine was purchased. He maintains that, in the
absence of reliable evidence of the purity of the methamphetamine,
the sentencing court must treat the substance as a mixture.

Cockerill relies on United States v. Rusher, 966 F.2d 868, 879 (4th
Cir. 1992), in which the defendants challenged the five-year manda-

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tory minimum sentence they received for possessing 72 grams of
methamphetamine at 86-91% purity.2 Rusher held that the proper
method for determining the amount of pure methamphetamine pos-
sessed was "to multiply the purity of the drug times its quantity . . . ."
Rusher, 966 F.2d at 880 (following United States v. Stoner, 927 F.2d
45, 46-47 (1st Cir. 1991)). Rusher is inapposite because, in Cock-
erill's case, the methamphetamine purchased in California was not
seized and its purity could not be analyzed. The only evidence of its
purity was Secor's testimony. Cockerill argues that, in the absence of
a laboratory analysis of the methamphetamine purchased in Califor-
nia, the district court was required to treat the methamphetamine as
a mixture. However, Rusher does not compel this result. Cockerill
further argues that the court should have treated the methamphet-
amine as 28% pure, because the sixty grams of methamphetamine
Cockerill helped to distribute to the informant in February 1998 was
analyzed and was 28% pure. Because the methamphetamine distrib-
uted to the informant obviously had been cut, its purity did not pro-
vide any information as to the purity of the methamphetamine from
which it was derived, or whether it was from the methamphetamine
obtained in 1996 by Benenhaley.

Cockerill also relies on United States v. Bogusz , 43 F.3d 82, 87 (3d
Cir. 1994), in which the Third Circuit held that"methamphetamine
(actual) refers to the net amount of methamphetamine hydrochloride
produced . . . after all impurities, byproducts, or cutting agents are
removed." Bogusz further held that the government has the burden of
proving the purity of the methamphetamine if the defendant is sen-
tenced for methamphetamine (actual). Id. at 88. In Cockerill's case,
the bulk of the methamphetamine used to calculate his offense level
was not seized and could not be analyzed, but there was evidence
through Secor's testimony that it was of very good quality. The sen-
tencing guidelines do not require absolute certainty about the amount
of drugs or their purity when the drugs are not seized or the amount
seized does not reflect the scale of the offense. See USSG § 2D1.1,
_________________________________________________________________
2 A 5-year sentence was required at the time under 21 U.S.C.
§ 841(b)(1)(B)(viii) when the offense involved"10 grams or more of
methamphetamine, its salts, isomers, and salts of its isomers, or 100
grams of a mixture or substance containing a detectable amount of
methamphetamine . . . ."

                     4
comment. (n.12). In such cases, the district court may estimate the
quantity, and may use whatever reliable evidence is available. Id.; see
also USSG § 6A1.3(a) (in resolving disputed sentencing factors, dis-
trict court may consider any information with sufficient indicia of
reliability to support its probable accuracy).

Here, the district court noted that Secor had been"an excellent wit-
ness," in contrast to Cockerill, whose testimony at the sentencing
hearing the court found unconvincing. In the absence of an objection
from Cockerill, we find that the district court did not plainly err in
accepting Secor's testimony as evidence that the methamphetamine
Benenhaley obtained in California was pure methamphetamine. Con-
sequently, the district court properly determined that Cockerill was
responsible for more than one kilogram of pure methamphetamine,
and sentenced him accordingly.

Cockerill's ex post facto argument is premised on the assumption
that the 1.8 to 2.2 kilograms of methamphetamine purchased in Cali-
fornia in 1996 should have been treated as a methamphetamine mix-
ture rather than as pure methamphetamine.3 However, there was no
change in the base offense level for 1-3 kilograms of methamphet-
amine (actual) from 1996 to 1998; the offense level was 36 in the
1995 Guidelines Manual and remained so through the 1998 Guide-
lines Manual. The base offense level for 1-3 kilograms of metham-
phetamine (a mixture) was 32 in the 1995 Guidelines Manual. The
1997 and 1998 manuals provided a base offense level of 32 for 500
grams to 1.5 kilograms of methamphetamine mixture, 34 for 1.5 to 5
kilograms of methamphetamine mixture, and 36 for 5-15 kilograms
of methamphetamine mixture.
_________________________________________________________________
3 The Guidelines Manual in effect on the date of sentencing is to be
used unless the district court determines that its use would violate the Ex
Post Facto Clause of the Constitution. See United States v. Morrow, 925
F.2d 779, 782-83 (4th Cir. 1991); USSG § 1B1.11(b)(1). A violation
occurs when the guidelines in effect on the date of sentencing inflict a
greater punishment than those in effect on the last date of the offense of
conviction; relevant conduct occurring later is not considered. See USSG
§ 1B1.11, comment. (n.2). If the defendant has been convicted of two
crimes, only one of which occurred after a revised edition of the Guide-
lines Manual took effect, the revised edition should be applied to both
offenses. See USSG § 1B1.11(b)(3).

                    5
Because Cockerill was held responsible for at least 1.8 kilograms
of pure methamphetamine and 60 grams of methamphetamine mix-
ture, the change did not affect his sentence calculation. As explained
above, the district court did not plainly err in holding Cockerill
responsible for 1.8 kilograms of pure methamphetamine. Conse-
quently, the district court did not plainly err in applying the 1998
Guidelines Manual.

We therefore affirm the sentence. Cockerill's motion to file a pro
se supplemental brief is granted. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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