                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 21 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Respondent-Appellee,

    v.                                                   No. 00-4118
                                                  (D.C. Nos. 97-CV-300-S &
    EVAN MITCHELL ANDERSON,                             89-CR-172-S)
                                                          (D. Utah)
                Petitioner-Appellant.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and McKAY , Circuit Judges, and           BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
       Petitioner Evan Mitchell Anderson appeals from an order of the district

court denying relief on his petition filed pursuant to 28 U.S.C. § 2255. We affirm

in part, reverse in part, and remand for further proceedings.

       Petitioner was convicted by a jury on six counts, all related to petitioner’s

production of methamphetamine. His case was affirmed by this court on direct

appeal. See United States v. Anderson , 940 F.2d 593 (10th Cir. 1991).

Petitioner’s § 2255 motion was referred to a magistrate judge who recommended

that it be denied. Petitioner objected to this recommendation and requested leave

to amend the motion. The district court adopted the report and recommendation

of the magistrate judge in its entirety and denied leave to amend. Petitioner

appeals. 1

       On appeal, petitioner argues that the district court erred in denying him

relief because of ineffective assistance of counsel. Specifically, he argues that

counsel failed to require the government to prove which isomer of

methamphetamine he had produced, l-methamphetamine or d-methamphetamine;

he failed to object to the inclusion of two specific quantities of the precursor

chemical l-ephedrine in the calculation of his sentence, and failed to present




1
       The district court also granted petitioner a certificate of appealability.
We read that certificate to include the issue of whether the district court abused
its discretion in denying petitioner leave to amend his § 2255 motion.

                                          -2-
evidence of a lower conversion ratio. Petitioner also argues that the district court

wrongly refused him leave to amend his motion.

       When reviewing the district court’s denial of a § 2255 motion, we review

the district court’s legal ruling de novo and its factual findings for clear error.

United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998). We will not find

that counsel has been ineffective unless his or her performance “fell below an

objective standard of reasonableness,”   Strickland v. Washington , 466 U.S. 668,

687-88 (1984), and we find it reasonably probable that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different,”

id. at 694.


Type of methamphetamine isomer

       At the time of petitioner’s sentence, the sentencing guidelines treated

manufacture of l-methamphetamine much less severely than manufacture of

d-methamphetamine.     See, e.g., United States v. Dudden   , 65 F.3d 1461, 1470

(9th Cir. 1995). We therefore first consider petitioner’s claim that his attorney

should have objected to his sentence calculation based on “d” rather than “l”

methamphetamine and that petitioner should have been afforded an evidentiary

hearing in his § 2255 proceeding in district court in order to establish which type

of isomer he had produced. In order to obtain a conviction, the government need

only prove that the substance involved was methamphetamine.        United States v.

                                           -3-
Deninno , 29 F.3d 572, 579-80 (10th Cir. 1994). At the time of petitioner’s

sentencing, the need to distinguish between “d” and “l” methamphetamine applied

only at the sentencing phase where the government was required to prove the type

of methamphetamine only by a preponderance of the evidence.       Id. at 580. 2

Circumstantial evidence is sufficient to meet this burden.    United States v.

Glover , 97 F.3d 1345, 1350 n.5 (10th Cir. 1996).

       Here, there was considerable circumstantial evidence regarding the type of

isomer produced by petitioner. Petitioner had purchased 37,000 grams of the

precursor chemical l-ephedrine from a supplier in Colorado some months before

his arrest. When law enforcement officials raided his lab, they confiscated

l-ephedrine and other chemicals used in the manufacture. While there was no

direct evidence that petitioner had produced d-methamphetamine, there was

testimony from a DEA chemist that petitioner used the manufacturing method

involving the reduction of ephedrine with hydriodic acid and red phosphorus.

R. Supp. Vol. V at 110. When this method is used with l-ephedrine,

d-methamphetamine is produced.        United States v. Decker , 55 F.3d 1509, 1512

(10th Cir. 1995) (relying on testimony that the l-ephedrine method produces


2
       The distinction between the two methamphetamine isomers for
sentencing purposes was eliminated in a sentencing guideline amendment
effective November 1, 1995. Now all methamphetamine is treated as “d”
methamphetamine. United States v. Svacina , 137 F.3d 1179, 1186 (10th Cir.
1998).

                                            -4-
d-methamphetamine). There is no evidence that petitioner possessed anything

other than l-ephedrine. Further, a user of his product testified that the drug gave

her high levels of energy and kept her awake.      3
                                                       We find this evidence to be more

than sufficient to establish that petitioner produced d-methamphetamine thus

rendering any evidentiary hearing in the district court unnecessary,       see United

States v. Marr , 856 F.2d 1471, 1472 (10th Cir. 1988) (observing that no

evidentiary hearing is required “where the district court finds the case record

conclusively shows the prisoner is entitled to no relief”). Any effort by

petitioner’s counsel to require the government to adduce more proof regarding

the type of isomer manufactured by petitioner would not have changed the

outcome of petitioner’s case. He has therefore not suffered the prejudice

necessary to sustain a claim of ineffective assistance of counsel.       See Strickland ,

466 U.S. at 687.


Amounts of l-ephedrine attributable to petitioner

       Petitioner next argues that two distinct amounts of l-ephedrine, seized by

authorities at different times, should not have been included in the overall amount

of l-ephedrine he possessed for sentencing purposes and that counsel was



3
       L-methamphetamine would not have produced such a reaction because it is
nearly inert and produces only “minor physiological effects.” United States v.
Decker , 55 F.3d 1509, 1510 (10th Cir. 1995).

                                             -5-
ineffective for not seeing that these amounts were excluded from the calculations.

We find no merit in this argument.

       The original presentence report (PSR) included the 37,000 grams petitioner

had purchased in Colorado as well as the other two discrete amounts to arrive at

a total of slightly more than 48,000 grams. PSR at 5. Defendant, presumably

through his attorney, objected to this amount, arguing that the two separate

seizures were part of the original 37,000 grams from Colorado. The PSR was

revised to reflect possession of only 37,000 grams. The testimony of the DEA

chemist that petitioner could produce 29 kilograms of methamphetamine was

based on 37,000 grams of l-ephedrine. R. Supp. Vol. V at 128. Petitioner was

sentenced based on the manufacture of 29 kilograms. We fail to see the point of

petitioner’s sentencing argument. Because these two amounts were not included

in the calculus of petitioner’s sentence, there is no double jeopardy issue nor any

issue based on relevant conduct.

       Petitioner’s contention that the two amounts should be subtracted from the

37,000 grams finds no support in the record. In fact, subtracting those amounts

from the 37,000 grams would result in their being excluded twice for sentencing

purposes. Most importantly, this court on direct appeal found no error in the

district court’s reliance on the 37,000 gram/29 kilogram amounts in arriving

at petitioner’s sentence.   Andersen , 940 F.2d at 597. Although cloaked in the


                                          -6-
guise of an ineffective assistance claim, this is the same issue decided on direct

appeal and cannot be raised again in a § 2255 motion.   United States v. Cox ,

83 F.3d 336, 342 (10th Cir.1996).


Conversion ratio

      At petitioner’s trial, the DEA chemist implied that an 80 percent conversion

ratio was appropriate to determine how much methamphetamine could be

manufactured from 37,000 grams of l-ephedrine. In his § 2255 proceeding,

petitioner offered a letter from Howard McClain, Jr., the chief of the Drug

Control Section of the DEA, dated some six weeks after petitioner was sentenced,

indicating that a conversion ratio of 62.5 percent would be appropriate. Petitioner

argues that his counsel was ineffective for failing to produce this type of evidence

at his sentencing.

      In response to this argument, the district court ordered additional briefing

from the government “as to how the calculation of petitioner’s sentence would be

affected if ONLY the lower conversion rate noted in the letter of Howard

McClain, Jr., of the DEA were applied instead of the 80% rate actually applied[.]”

R. Vol. I doc. 24. In its response, the government stated: “[T]he only

conversion rate that should be used in this case, assuming Mr. McClain’s

observations regarding conversion ought to be applied retroactively in petitioner’s

case, a position the Magistrate rejected, but the government, in fairness, does not

                                           -7-
contest, is what McClain referred to as the ‘average actual yield.’”       Id. doc. 25

at 2. The “average actual yield” referred to in the McClain letter is 62.5 percent.

       Applying the 1989 guidelines, the government concluded that petitioner’s

sentence would remain the same irrespective of which conversion ratio was used.

The district court, therefore, rejected the contention that petitioner’s counsel had

been ineffective based on his failure to present evidence regarding an alternate

conversion ratio. In its brief to the district court, however, the government

analyzed the issue using the incorrect guidelines.

       Generally, a sentencing court must apply the guidelines in effect at the time

of the sentencing unless doing so would create ex post facto problems.         United

States v. Sullivan, No. 00-8012, 2001 WL 777000, at * 2 (10th Cir. July 11,

2001) ( to be published at 255 F.3d 1256). The 1989 guidelines became effective

on November 1, 1989, before petitioner’s sentencing but after petitioner’s

criminal conduct had occurred. Under the 1988 guidelines, one gram of

methamphetamine equaled two grams of cocaine for sentencing purposes.

U.S. Sentencing Guidelines Manual, Drug Equivalency Tables             at 2.42 (1988).

The 1989 guidelines raised that ratio, equating one gram of methamphetamine

with five grams of cocaine.    U.S. Sentencing Guidelines Manual, Drug

Equivalency Tables at 2.48 (1989). Thus, sentencing petitioner under the 1989

guidelines for conduct which occurred before those guidelines became effective


                                            -8-
would subject him to harsher punishment than he would have received at the time

the offenses had been committed. This is a classic ex post facto problem.

See Sullivan , 2001 WL 777000, at *2. Petitioner, therefore, should have been,

and probably was, sentenced under the 1988 guidelines.     4
                                                               Had the government

relied on the correct version of the guidelines in its brief to the district court

analyzing the effect of the 62.5 percent conversion ratio, it could not have

concluded that the sentences would be the same under either ratio. Under the

1988 guidelines, petitioner would have received a lesser sentence had the 62.5

percent conversion ratio been used.

      That aside, we have found no law dealing with the proper conversion ratio

in methamphetamine cases available to counsel at the time of petitioner’s

sentencing. In view of the concession by the government, however, that

62.5 percent was a fair ratio and should be applied, we remand for an evidentiary

hearing to determine whether this data or any conversion rate information less

than the 80 percent adduced at trial was reasonably available to petitioner’s

attorney at the time of the trial or sentencing such that his failure to acquire such

information would constitute ineffective assistance of counsel.


4
       We are unsure whether the sentencing court used the 1988 guidelines or the
1989 version because the transcript of the sentencing proceeding is not included
in the record on appeal. We agree with the surmise of the magistrate judge,
however, that because of the potential ex post facto problem, the sentencing court
most likely relied on the 1988 guidelines. R. Vol. I, doc. 18 n.3.

                                          -9-
Guideline Application

      Petitioner argues that he was sentenced under the wrong edition of the

sentencing guidelines. As noted above, we suspect that was not the case. It may

not matter, however, because if petitioner was responsible for 37,000 grams

of l-ephedrine and 29 kilograms of methamphetamine based on an 80 percent

conversion ratio, petitioner’s sentence is the same under either version of

the guidelines. It is only when one accepts petitioner’s arguments that the

l-ephedrine amount should be less than 37,000 grams and/or, as discussed above,

that the conversion ratio should be less than 80 percent that different sentences

can result.

      We have rejected the argument that the l-ephedrine should be less than

37,000 grams. However, we are remanding this case to determine whether

counsel was ineffective in failing to present evidence of a conversion rate of less

than 80 percent. If, after an evidentiary hearing, the district court concludes that

petitioner’s counsel was ineffective for failing to present reasonably available

evidence of a lower conversion rate, the district court should then determine the

proper conversion rate and resentence petitioner under the 1988 guidelines.




                                         -10-
Denial of Leave to Amend

       As mentioned above, in conjunction with his objections to the report and

recommendation of the magistrate judge, petitioner also requested leave to amend

his complaint to add a claim based on the        Apprendi/Jones/Castillo   5
                                                                               line of cases.

The district court, without comment, denied leave to amend.

       “[T]he decision to grant leave to amend a complaint, after the permissive

period, is within the trial court’s discretion, Fed. R. Civ. P. 15(a), and will not be

disturbed absent an abuse of that discretion.”        Pallottino v. City of Rio Rancho,

31 F.3d 1023, 1027 (10th Cir. 1994) (quotation omitted). Generally, a court must

explain why permission to amend has been denied.            Id. However, “failure to state

a reason can be harmless error where the reason is apparent.”          Id. (quotation

omitted).

       Leave to amend should be freely given in the absence of a good reason not

to allow amendment.     Foman v. Davis , 371 U.S. 178, 182 (1962). One good

reason not to allow amendment is when the amendment will be futile.                Id. That

is the situation facing petitioner.

       Since petitioner’s request for leave to amend and, indeed, since the filing of

the appellate briefs, this court has made it clear that petitioner could not prevail



5
      Apprendi v. New Jersey , 530 U.S. 466 (2000); Jones v. United States ,
526 U.S. 227 (1999); Castillo v. United States , 530 U.S. 120 (2000).

                                            -11-
on the substance of the   Apprendi argument he wished to include in his § 2255

petition. Subparagraph (b)(1)(C) of 28 U.S.C. § 841 states that “[i]n the case of

a controlled substance in schedule I or II, . . . such person shall be sentenced to

a term of imprisonment of not more than 20 years.” Methamphetamine is

a schedule II controlled substance.     United States v. Killion , 7 F.3d 927, 935

(10th Cir. 1993). Because petitioner was sentenced to 220 months’ imprisonment,

his sentence is less than the twenty-year statutory maximum for the offenses of

which he was convicted. Under our recent holdings in          United States v.

Thompson , 237 F.3d 1258, 1262 (10th Cir.),         cert. denied, 121 S. Ct. 1637 (2001)

and United States v. Heckard , 238 F.3d 1222, 1235-36 (10th Cir. 2001),

petitioner’s case does not present an    Apprendi violation. Amendment of the

petition, therefore, would have been futile, and it was not an abuse of discretion

to deny leave to amend. Because the reason for denial is apparent, the district

court’s failure to explain its denial was harmless error.     6




6
      Contrary to petitioner’s suggestion, this case differs from United States v.
Gorecki , No. 95-4129, 1996 WL 211740 (10th Cir. Apr. 30, 1996), where the
defendant was entitled to leave to amend as a matter of right.

                                             -12-
      The judgment of the United States District Court for the District of Utah

is AFFIRMED in part, and REVERSED in part, and REMANDED for further

proceedings consistent with this order and judgment.


                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




                                       -13-
