                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
     ___________

     No. 96-3085
     ___________
United States of America,              *
                                       *
           Plaintiff-Appellee,         *
                                       *
     v.                                *
                                       *
Sergio Meza Beltran,                   *
                                       *
           Defendant-Appellant.        *
                                       *

     __________                         Appeals from the United States
                                               District Court for the
     No. 96-3086                               Southern District of Iowa.
     ___________

United States of America,               *
                                        *
           Plaintiff-Appellee,          *
                                        *
     v.                                         *
                                        *
Romulo Obeso,                           *
                                        *
           Defendant-Appellant.         *
      ___________

      No. 96-3087
      ___________

United States of America,                 *
                                          *
             Plaintiff-Appellee,          *
                                          *
     v.                                           *
                                          *
Maria Cardenas,                           *
                                          *
             Defendant-Appellant.         *

                                    ___________

                         Submitted:    February 11, 1997
                                          Filed: September 11, 1997
                                    ___________

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY,1
      District Judge.
                                ___________

HANSEN, Circuit Judge.

      Sergio Meza Beltran, Romulo Obeso, and Maria Cardenas appeal their
sentences on federal drug charges, arguing that the district court2 erred
by concluding that it lacked authority to depart under 18 U.S.C. § 3553(b)
(1994) on the basis of a




      1
       The Honorable Richard H. Battey, Chief Judge, United States District Court for
the District of South Dakota, sitting by designation.
      2
        The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.

                                         -2-
low purity level of a methamphetamine mixture.         Defendant Beltran
additionally asserts that the district court erred by denying his request
for a sentencing reduction based upon his alleged mitigating role in the
offense. We affirm.

      On December 23, 1995, a confidential informant informed law
enforcement officers that he had observed the defendants in a hotel room
with approximately three pounds of methamphetamine. At the request of case
agents, the confidential informant placed a telephone call to the hotel
room and made arrangements to purchase one pound of methamphetamine for the
price of $15,000. Later that evening, officers searched the hotel room,
seized approximately 884.73 grams of methamphetamine, and arrested each of
the defendants.

      The defendants were charged with one count of conspiring to
distribute methamphetamine, one count of conspiring to possess with intent
to distribute methamphetamine, and various charges of illegally entering
the United States. Beltran and Obeso each pleaded guilty to one count of
conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§
841(a) and 846, and one count of illegal re-entry into the United States
by an alien previously convicted of an aggravated felony, in violation of
8 U.S.C. §§ 1326(a) and (b)(2). Cardenas pleaded guilty to one count of
conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§
841(a) and 846, and one count of possession of a counterfeit alien
registration card, in violation of 18 U.S.C. § 1546(a).
      At sentencing, each defendant was held accountable for the entire
quantity of the methamphetamine seized, which a laboratory report indicated
to be a mixture containing less than one percent pure methamphetamine. The
district court denied the defendants' 18 U.S.C. § 3553(b) motion for a
downward departure based upon the low purity of the methamphetamine and
also denied Beltran's request for a sentence reduction based upon his
alleged mitigating role in the offense.      The district court sentenced
Beltran as a career offender to 188 months of imprisonment and sentenced




                                    -3-
Obeso to 97 months of imprisonment. After concluding that Cardenas was not
subject to the statutory mandatory minimum sentence because she met the
criteria of 18 U.S.C. § 3553(f) (the safety-valve provision), the district
court sentenced her to 37 months of imprisonment, a sentence to which she
stipulated.

      The defendants appeal their sentences, challenging the district
court's refusal to grant a downward departure under 18 U.S.C. § 3553(b)
based upon the low purity level of the methamphetamine mixture involved in
this crime.    The defendants argue that the low purity (less than one
percent actual methamphetamine) was a circumstance not contemplated by the
Sentencing Commission in formulating the Drug Quantity Table and that this
circumstance takes this particular case out of the heartland of cases
provided for in the drug quantity guideline.
      The district court denied the departure motion, concluding that it
lacked authority to depart on this basis. "We have jurisdiction to review
a district court's decision not to depart [from the Sentencing Guidelines]
only where the decision is based on the district court's legally erroneous
determination that it lacked authority to consider a particular mitigating
factor."    United States v. Field, 110 F.3d 587, 591 (8th Cir. 1997)
(emphasis omitted). Whether a particular factor is a permissible basis for
departure is a question of law, which we review without deference to the
district court's resolution of the issue. Koon v. United States, 116 S.
Ct. 2035, 2047 (1996); United States v. Kalb, 105 F.3d 426, 428 (8th Cir.
1997).
      In determining a sentence under the United States Sentencing
Guidelines, the district court may depart below the applicable sentencing
range if "the court finds that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that described." 18 U.S.C.
§ 3553(b); see U.S. Sentencing Guidelines Manual § 5K2.0, p.s. (1995). "To
determine whether a circumstance was adequately taken into consideration
by the Commission,




                                   -4-
Congress instructed courts to 'consider only the sentencing guidelines,
policy statements, and official commentary of the Sentencing Commission.'"
Koon, 116 S. Ct. 2044 (quoting 18 U.S.C. § 3553(b)).         Thus, we must
determine whether the Sentencing Commission explicitly considered the
purity level of methamphetamine in a mixture, and if so, whether the
circumstance is a forbidden basis for departure or one that may, in an
appropriate situation, take the case outside the heartland of cases
generally covered by the guideline. See USSG § 5K2.0, p.s. (indicating
that a circumstance not ordinarily relevant to a departure decision may be
relevant if it "is present to an unusual degree and distinguishes the case
from the 'heartland' cases covered by the guidelines in a way that is
important to the statutory purposes of sentencing").
      We begin our discussion in this case with a look at the relevant
statutory language and find that Congress explicitly considered the purity
level of methamphetamine when it determined the penalties to be imposed for
its illegal use.     When describing the mandatory minimum and maximum
penalties for manufacturing, distributing, or dispensing a controlled
substance, Congress made a distinction between pure methamphetamine and “a
mixture or substance containing a detectable amount of methamphetamine.”
21 U.S.C. § 841(b). Congress provided a 10-year minimum sentence (20 years
if death or serious bodily injury results) for manufacturing, distributing,
or dispensing either “100 grams or more of methamphetamine” “or 1 kilogram
or more of a mixture or substance containing a detectable amount of
methamphetamine.”    21 U.S.C. § 841(b)(1)(A)(viii) (emphasis added).
Similarly, Congress provided a 5-year minimum sentence for manufacturing,
distributing, or dispensing either “10 grams or more of methamphetamine”
“or 100 grams or more of a mixture or substance containing a detectable
amount of methamphetamine.”     Id. § 841(b)(1(B)(viii) (emphasis added).
Thus, Congress chose to expressly distinguish between pure methamphetamine
and   lower   purity   mixtures    containing  a   detectable   amount   of
methamphetamine, specifically providing that a lesser amount of pure
methamphetamine will invoke the same statutory minimum penalty as a much
greater amount of a mixture.




                                    -5-
      The text of the Sentencing Guidelines mirrors this statutory language
and plainly indicates that the Sentencing Commission adequately took into
consideration the purity level of methamphetamine in formulating the
Guidelines. While the Guidelines generally "focus on the weight and not
the purity of the drugs in determining the offense level," United States
v. Upthegrove, 974 F.2d 55, 56 (7th Cir. 1992), the Commission set forth
two methods of determining a base offense level in methamphetamine cases--
one based on the weight of the mixture, which "refers to the entire weight
of any mixture or substance containing a detectable amount of the
controlled substance," USSG § 2D1.1*Notes to Drug Quantity Table (A)
(emphasis added); and one based on the pure weight of the methamphetamine,
which refers to the actual weight of the methamphetamine itself contained
in the mixture, id. § 2D1.1*Notes to Drug Quantity Table (B).
Specifically, the Drug Quantity Table of the Sentencing Guidelines directs
the sentencing court to use the method which results in the greatest
offense level: "In the case of a mixture or substance containing PCP or
methamphetamine, use the offense level determined by the entire weight of
the mixture or substance, or the offense level determined by the weight of
the PCP (actual) or methamphetamine (actual), whichever is greater." Id.
(emphasis added).      The Sentencing Guidelines further provide that
trafficking in drug mixtures with unusually high purity levels may warrant
an upward departure, "except in the case of PCP or methamphetamine for
which the guideline itself provides for the consideration of purity." USSG
§ 2D1.1, comment. (n.9) (emphasis added).
      As already noted, the Commission explicitly considered the purity of
methamphetamine when formulating the Drug Quantity Table applicable to
methamphetamine violations. In doing so, the Commission constructed a
method for determining the base offense level that precludes the district
court from sentencing on the basis of drug purity, except in instances
where the purity of the methamphetamine results in a greater offense level
than the offense level resulting from the weight of the entire substance
or mixture. A departure below this "greater" offense level solely on the
basis of a mixture's low methamphetamine purity would directly contradict
and




                                    -6-
effectively eviscerate the Commission's explicit formula directing courts
to sentence methamphetamine violations by the method yielding the greatest
base offense level. See Upthegrove, 974 F.2d at 56 (noting, "If district
courts could depart from the Drug Quantity Table anytime they are faced
with drugs of less than 'average' purity, the Sentencing Commission's
decision to focus on the weight of the drugs in sentencing would be
eviscerated."); see also United States v. Davis, 868 F.2d 1390, 1393 (5th
Cir. 1989) (holding that the possibility of an upward departure on the
basis of high purity drugs under the Guidelines does not create a
corresponding inference that a reduction is appropriate for low purity
drugs). Because the Commission has already adequately considered how to
handle a case involving a low purity of methamphetamine present in a
mixture, including one so low as to be merely "detectable," we believe that
the existence of such a circumstance is a “forbidden factor” under Koon,
116 S. Ct. at 2045, which cannot be used as a basis for a downward
departure. The district court did not err by concluding that it lacked
authority to grant a downward departure on this basis.
      Additionally, Beltran argues that the district court erred by denying
his request for a mitigating role in the offense reduction under USSG §
3B1.2. We disagree. It is undisputed that Beltran is a career offender
within the meaning of USSG § 4B1.1.        The career offender guideline
implements the Congressional directive that "certain 'career' offenders
receive a sentence of imprisonment 'at or near the maximum term
authorized.'" USSG 4B1.1, comment. (backg'd.); see 28 U.S.C. § 994(h).
The offense level reductions provided in USSG 3B1.2 for a mitigating role
in the offense simply do not apply in the career offender context. The
career offender guideline trumps all other offense level adjustments, with
the exception of reductions for the acceptance of responsibility. USSG §
4B1.1. As a career offender, Beltran was subject to a base offense level
of 34, which was appropriately reduced by his acceptance of responsibility
under USSG § 3E1.1. See id. Because Beltran indisputably was a career
offender, his objection to the district court's determination concerning
his role in the




                                    -7-
offense is without merit. See United States v. McNeil, 90 F.3d 298, 300
(8th Cir.), cert. denied, 117 S. Ct. 596 (1996).

     Accordingly, we affirm the sentences imposed by the district court.

     A true copy.

          Attest:

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




                                  -8-
