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

                        FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                   Clerk


                             No. 02-51335
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSHAWA CLAY PHIPPS,

                                     Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                         USDC No. W-02-CR-132-1
                          --------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Joshawa Clay Phipps appeals the sentence he received on his

guilty-plea convictions of conspiracy to manufacture

methamphetamine (meth) and possession of meth with intent to

distribute it, in violation of 21 U.S.C. §§ 846 and 841(a)(1).

We AFFIRM.

     In July 2002, police seized 17,368 pills from a car in which

Phipps was a passenger.    The pills contained a total of 1042

     *
        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that this opinion should not be published and is not precedent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. 02-51335
                                 -2-

grams of pseudoephedrine.   The officers also found 99.22 grams of

meth on Phipps’s person.

     To determine Phipps’s base offense level under the

Sentencing Guidelines, the presentence report (PSR) used the

guideline Drug Equivalency Tables to convert the pseudoephedrine

and the meth to their marijuana equivalents, on authority of

U.S.S.G. § 2D1.1, comment. (n.10)(note 10).    The PSR notes that

the pseudoephedrine converts to 10,420 kilograms of marijuana and

the meth to 198.44 kilograms of marijuana.    The PSR determined

that Phipps’s base offense level was 36, based on the

pseudoephedrine, being equivalent to more than 10,000 but less

than 30,000 kilograms of marijuana.

     At sentencing Phipps argued that his base offense level

should be 32, based on his estimate that the pseudoephedrine

could have been used to manufacture only 880 grams of meth.     See

U.S.S.G. § 2D1.1(c)(4)(at least 500 grams but less than 1.5

kilogram of meth).   The district court agreed with the PSR and

sentenced Phipps accordingly.    Phipps now contends that the

district court reversibly erred.

     A defendant’s base offense level for a violation of

§ 841(a)(1) is determined by computing the quantity of drugs

involved in the offense for which he is accountable.    See

§ 2D1.1(c)(Drug Quantity Table); United States v. Vital, 68 F.3d

114, 117-18 (5th Cir. 1995).    If more than one controlled

substance is involved, however, note 10 directs that the Drug
                             No. 02-51335
                                  -3-

Equivalency Tables set forth in § 2D1.1 be used to determine the

appropriate offense level.    This distinguishes Phipps’s case from

three cases upon which he relies, in which the offense levels for

meth offenses were based on the quantity of meth that (it was

estimated) could have been produced using the amount of a single

listed chemical that each defendant possessed.   The fact that in

Phipps’s case the district court did not add to the total the

meth’s equivalent of approximately 200 kilograms of marijuana is

irrelevant, because it had no effect on the determination of

Phipps’s base offense level.

     Phipps argues that the rule of lenity requires that the

pseudoephedrine be converted to meth, based on his estimate of

the quantity of meth which could be manufactured.   This lacks

merit because his base offense level would have been 36 if he had

been charged with and convicted of having possessed the

pseudoephedrine alone instead of the meth offenses.   This is

because the relevant Drug Quantity Table, § 2D1.11(d), provides a

base offense level of 36 for offenses involving at least one

kilogram of pseudoephedrine, and Phipps concedes that he is

accountable for 1.042 kilogram thereof.

     AFFIRMED.
