                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 10 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30414

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00062-JWS-1

  v.
                                                 MEMORANDUM *
MICHAEL JAMES LEWIS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                       Argued and Submitted July 30, 2010
                               Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

       Michael James Lewis appeals the sixty-month sentence imposed after he

pled guilty to three counts of distributing methamphetamine in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C). He argues that the district court incorrectly




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
calculated drug quantity under U.S.S.G. § 2D1.1 and that it incorrectly applied the

18 U.S.C. § 3553(a) factors. We affirm.

      We review the district court’s interpretation of the Sentencing Guidelines de

novo. United States v. Stoterau, 524 F.3d 988, 997 (9th Cir. 2008). The district

court did not err in reading the Guidelines to require combining the

l-methamphetamine and the d-methamphetamine that Lewis distributed when it

determined the amount of actual methamphetamine involved in Lewis’s offenses.

In 1995, the Sentencing Commission amended the Guidelines to “delete[] the

distinction between d- and l-methamphetamine in the Drug Equivalency Tables in

the Commentary to § 2D1.1.” U.S.S.G. app. C, amend. 518 (Nov. 1, 1995)

[hereinafter Amendment 518]. L-methamphetamine is now, in general, “treated the

same as d-methamphetamine” for sentencing purposes. Id. The specific reference

to d-methamphetamine in the Guidelines’ definition of “ice” does not undermine

Amendment 518’s general rule of equal treatment, but merely carves out an

exception to it in a limited context.

      We reject Lewis’s claim, to the extent he raises it, that Amendment 518 is

unconstitutional because it is not rationally related to a legitimate government

interest. See, e.g., United States v. Fine, 975 F.2d 596, 604 (9th Cir. 1992) (en

banc) (“The Due Process Clause of the Fifth Amendment precludes the imposition


                                           2
of punishment based on arbitrary distinctions, and, in the sentencing context,

‘essentially duplicates’ an argument based on equal protection.”). Treating all

forms of methamphetamine alike is rationally related to the Commission’s asserted

and legitimate interests in simplifying guideline application and reducing litigation

over whether any given methamphetamine is of the d- or l- variety. See

Amendment 518.

      The district court did not misapply the 18 U.S.C. § 3553(a) factors when it

declined to hear expert testimony on the differences between d- and l-

methamphetamine. We review a decision not to hold an evidentiary hearing at

sentencing for abuse of discretion. United States v. Pearson, 274 F.3d 1225, 1234

(9th Cir. 2001). The district court here determined that the proffered expert

testimony—which sought to prove l-methamphetamine’s relative

innocuousness—would be relevant to its § 3553(a) analysis only if Lewis could

establish that he had intended to distribute l-methamphetamine. The court invited

Lewis to establish that this was his intention, and Lewis explicitly declined to do

so. The court did not abuse its discretion in concluding, as a result, that the

testimony Lewis sought to introduce was irrelevant or in excluding it on that basis.

      AFFIRMED.




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