                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                                FEB 5 1999
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                            No. 97-1313
                                                      (D.C. No. 95-CR-137-S)
 GARY L. NORMAN, a.k.a.
                                                             (D. Colo.)
 “STITCH,”

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before PORFILIO, BALDOCK, and EBEL, Circuit Judges.


      Defendant-Appellant Gary L. Norman appeals his September 1997

sentencing on federal drug charges. He argues that the district court erred in

deriving his base offense level from the amount of actual (pure)

methamphetamine found in his possession instead of the total weight of the

methamphetamine mixture. Norman also argues that the court erred in calculating




      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
the drug quantity by failing to deduct amounts of methamphetamine he possessed

for personal use (as opposed to distribution).

      Norman’s first argument fails under the clear language of the Sentencing

Guidelines. His second argument fails because, even excluding amounts of

methamphetamine reasonably held for personal use, his base offense level would

not have differed. We affirm.

                                 BACKGROUND

      On August 11, 1995, Norman entered a plea of guilty to possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B)(viii), and possession of a firearm while under felony indictment, in

violation of 18 U.S.C. § 922(n). These charges stemmed from an arrest in

January 1995, in which Norman had been pulled over for erratic driving. His

vehicle contained weapons and ammunition, a plastic baggie with 0.49g of

methamphetamine mixture, and a sparkplug box containing an additional 25.3g of

methamphetamine mixture, for a total of 25.79g.

      The felony indictment underlying Norman’s firearms count related to a

similar traffic incident in October 1994, in which Norman was found with

weapons and a total of 10.1g of methamphetamine mixture. 1


      1
       In the October 1994 incident, the police found in Norman’s pocket a vial
containing 0.3g of methamphetamine, as well as a baggie near the vehicle
                                                                    (continued...)

                                        -2-
      Norman’s presentence report listed his relevant conduct as including both

the 25.79g of methamphetamine seized in the January 1995 arrest, and the 10.1g

of methamphetamine recovered during the October 1994 traffic incident. The

combined 35.89g of methamphetamine mixture yielded 19.95g of actual

methamphetamine. 2

      The district court derived Norman’s base offense level for the drug offense

from the 19.95g of actual methamphetamine, giving him a base offense level of

26. Norman received a two-level enhancement for the firearms offense and a

three-level reduction for acceptance of responsibility, resulting in a total offense

level of 25. Given Norman’s criminal history category of II, the Guidelines

yielded a sentencing range of 63-78 months on the possession with intent to

distribute charge. The district court sentenced Norman to 63 months on the drug

charge and 60 months on the weapons charge, to run concurrently with the

sentence imposed in his related case (stemming from the October 1994 incident).


      1
        (...continued)
containing 9.8g of methamphetamine, for a total of 10.1g. Norman was ultimately
convicted by a jury on both the drugs and gun charges in this earlier case, which
came before this court on appeal. See United States v. Norman, 129 F.3d 1393
(10th Cir. 1997) (affirming district court’s calculation of drug quantity and
criminal history points, but reversing district court’s enhancement for obstruction
of justice).
      2
       The weight of the pure methamphetamine contained in a mixture or
substance is referred to in the Sentencing Guidelines as “methamphetamine
(actual).” U.S.S.G. § 2D1.1, note (B) to the Drug Quantity Table.

                                        -3-
      Norman argues on appeal that the district court should have established his

base offense level using the 35.89g quantity of methamphetamine mixture (for a

base offense level of 18), rather than the 19.95g of actual methamphetamine

(which resulted in a base offense level of 26). Norman also submits that the court

should have deducted from its drug quantity calculation any methamphetamine he

possessed solely for personal use.

                                     DISCUSSION

      Because the objections were timely raised in this case, we review the

district court’s factual findings for clear error and review its legal interpretation

of the Sentencing Guidelines de novo. See United States v. Norman, 129 F.3d

1393, 1398 (10th Cir. 1997).

      A. Calculation of the Drug Quantity Based on the Weight of the Actual
      Methamphetamine

      Section 841(b) of Title 21 establishes penalties for possession with intent to

distribute methamphetamine based either on the weight of “a mixture or substance

containing a detectable amount of methamphetamine” or on lower weights of pure

methamphetamine. See 21 U.S.C. §§ 841(b)(1)(A)(viii), (b)(1)(B)(viii); Chapman

v. United States, 500 U.S. 453, 459 (1991) (noting distinction). The Sentencing

Guidelines reflect this statutory penalty scheme. For example, under U.S.S.G. §

2D1.1(c) (Drug Quantity Table), a defendant will receive a base offense level of

26 for possessing either 100 - 400g of methamphetamine (mixture), or 10 - 40g of

                                         -4-
methamphetamine (actual). Similarly, a defendant will receive a base offense

level of 18 for possession of either 20 - 40g of methamphetamine mixture, or 2 -

4g of methamphetamine (actual). In this case, the 19.95g of actual

methamphetamine in this case fell within the 10 - 40g range established for

offense level 26; by comparison, the 35.89g representing the total weight of the

methamphetamine mixture would have fallen within the 20 - 40g range prescribed

for offense level 18.

      Norman contends that the court erred by using the 19.95g of actual

methamphetamine in calculating his base offense level, and that under Chapman,

the court should have instead used the total weight of the methamphetamine

mixture, or 35.89g. See Chapman, 500 U.S. at 461 (holding that weight of blotter

paper on which LSD was distributed was “mixture or substance containing a

detectable amount” of LSD, and was therefore properly considered in calculating

sentence). Norman submits that to permit the government to select the weight

that results in a higher sentence violates the rule of lenity established in

Huddleston v. United States, 415 U.S. 814, 831 (1974).

      Norman’s argument overlooks the plain command of U.S.S.G. § 2D1.1(c),

note *:

      In the case of a mixture or substance containing . . .
      methamphetamine, use the offense level determined by the entire
      weight of the mixture . . . or the offense level determined by the
      weight of the . . . methamphetamine (actual), whichever is greater.

                                          -5-
U.S.S.G. § 2D1.1(c), note * (emphasis added).

      This language directs the district court to use whichever drug quantity

calculation results in the higher offense level. See United States v. Decker, 55

F.3d 1509, 1513 (10th Cir. 1995); see also United States v. Newton, 31 F.3d 611,

614 (8th Cir. 1994) (relying on § 2D1.1(c), note * to reject argument that

sentencing court erred in relying on actual weight of methamphetamine rather

than total weight of mixture). The district court therefore properly established

appellant’s base offense level based on the weight of the actual

methamphetamine.

      Moreover, the rule of lenity argued by appellant is not applicable unless

there is a “‘grievous ambiguity or uncertainty in the language and structure of the

Act.’” Chapman, 500 U.S. at 463 (quoting Huddleston at 831). Because there is

no such ambiguity in 21 U.S.C. § 841(b) or U.S.S.G. § 2D1.1(c), note *, see

Decker, 55 F.3d at 1513, appellant’s argument fails.

      B. Deductions for personal use

      Norman contends that the district court should have omitted from its drug

quantity calculation any methamphetamine Norman possessed solely for his

personal use. Norman relies on United States v. Kipp, 10 F.3d 1463 (9th Cir.

1993), in which the Ninth Circuit reversed and remanded a defendant’s sentence

on possession with intent charges, instructing the district court to make factual


                                        -6-
findings as to the quantity of drugs possessed for distribution and to deduct from

that quantity any amounts possessed strictly for personal consumption. Id. at

1465-66. Norman does not identify a specific quantity of methamphetamine held

for personal use; nevertheless, he urges this Court to follow Kipp and remand the

case for specific findings regarding the amounts possessed for personal use and to

instruct the district court to deduct such amounts from the total drug quantity.

      The Tenth Circuit has neither adopted Kipp nor expressly ruled on this

particular issue. 3 However, even assuming that we were to follow Kipp in this

case, it would not alter Norman’s base offense level determination.

      As discussed above, the district court properly relied on the weight of the

actual methamphetamine to establish Norman’s base offense level. The relevant

19.95g falls within a 10 - 40g range established at Level 26; obviously, as little

as 10 g of actual methamphetamine would trigger an offense level of 26. With this


      3
       We note that the Seventh Circuit recently relied on Kipp to hold that drugs
purchased for personal consumption (vs. resale) may not be considered as
“uncharged drug-related misconduct” to enhance a defendant’s sentence on
charges of possession with intent to distribute. See United States v. Wyss, 147
F.3d 631, 632-33 (7th Cir. 1998). On the other hand, the Eleventh Circuit has
expressly rejected Kipp, albeit in a case involving conspiracy rather than
possession. See United States v. Antonietti, 86 F.3d 206, 209-10 (11th Cir. 1996).
Several circuits, including ours, have ruled that drugs held for personal
consumption do qualify as relevant conduct for sentencing purposes when a
defendant is convicted of manufacturing or conspiring to distribute drugs. See
United States v. Snook, 60 F.3d 394, 396 (7th Cir. 1995); United States v. Wood,
57 F.3d 913, 920 (10th Cir. 1995); United States v. Innamorati, 996 F.2d 456, 492
(1st Cir. 1993).

                                         -7-
in mind, Norman’s efforts to decrease his offense level for the drug charge are

unavailing. This case is factually distinguishable from Kipp; Kipp involved a

plea agreement that expressly reserved the defendant’s right to argue the amount

of the drugs for sentencing purposes. See Kipp, 10 F.3d at 1464. No such

reservation appears in July 31, 1995 plea agreement in the record before us.

Indeed, Norman expressly agreed to plead guilty to possession with intent to

distribute a mixture containing 16.5g of actual methamphetamine -- an amount

that exceeds the 10g minimum sufficient to trigger offense level 26. 4

      In any event, the district court would have no reason to find on remand that

Norman possessed less than 10g of actual methamphetamine for distribution. The

only support for Norman’s claim that he personally used methamphetamine is

counsel’s own representations at sentencing that Norman is a “heavy user;” that

the probation reports indicate he used methamphetamine; and that the court

ordered that he participate in drug treatment. The strongest evidence that Norman

set aside some of the methamphetamine for personal use is that during the January


      4
        The plea agreement provides that Norman agreed to plead guilty to
“possession with intent to distribute a quantity of a mixture and substance
containing a detectable amount of d-Methamphetamine HCL (with a net weight of
approximately 16.5 grams d-Methamphetamine HCL (actual).” (July 31, 1995
Plea Agreement at 2.)
       The approximately 16.5g of actual methamphetamine referred to was
derived from the 25.79g of methamphetamine mixture seized in the January 1995
incident, and does not include the 10.1g of methamphetamine mixture (3+g of
actual methamphetamine) recovered in the separate October 1994 traffic incident.

                                        -8-
1995 arrest police seized a baggie containing 0.49g of methamphetamine separate

from the 25.3g stash found in a sparkplug box in his vehicle. Likewise, during

the October 1994 arrest, Norman had a vial in his pocket containing 0.3g of

methamphetamine separate from the 9.8g quantity discovered near his car. 5 Even

assuming both amounts (0.49g and 0.3g) to be 100% pure methamphetamine, and

deducting both from the 19.95g total, the sum remaining still greatly exceeds the

10g minimum for offense level 26.

      Thus, even if we were to agree with appellant that amounts held for

personal use should be deducted from the drug quantity calculation, Norman’s

base offense level would remain unaffected by any such deductions even remotely

supported by the facts in this case. Accordingly, the district court’s sentence is

AFFIRMED.

                                       ENTERED FOR THE COURT

                                       David M. Ebel, Circuit Judge


      5
       We note that Norman raised this same argument regarding deductions for
personal use in his earlier case (based on the charges stemming from October
1994). We stated:
      For the first time on appeal, Norman contends that the district court
      erred when it calculated drug quantities without deducting amounts
      which he possessed for personal use. We reject this claim outright.
      The district court adopted the drug quantity which Norman himself
      urged. Additionally, at trial Norman testified that the
      methamphetamine belonged to someone else, and he also testified
      that he had only used methamphetamine a few times.
United States v. Norman, 129 F.3d 1393, 1402 (10th Cir. 1997).

                                        -9-
