                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 3 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 98-4032
                                                     (D.C. No. 95-CV-451)
    RANDOLPH SHORT,                                        (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT           *




Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.



         Randolph Short was convicted of manufacturing methamphetamine.     1
                                                                                He

appealed his conviction and 151-month sentence, and the government cross-

appealed the sentence. This court affirmed the conviction but remanded for

imposition of a mandatory minimum sentence of twenty years under 21 U.S.C.

*
      This order and judgment is not binding precedent, except under the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.
1
       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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
§ 841(b)(1)(A).   See United States v. Short , 947 F.2d 1445 (10th Cir. 1991). In

May 1995, Short filed the instant motion challenging his sentence pursuant to 28

U.S.C. § 2255. The district court denied the motion, and Short appeals

proceeding pro se.

       In his § 2255 motion, Short contended that the district court improperly

determined his sentence under U.S.S.G. § 2D1.1 by basing it on the

methamphetamine production capacity of the materials with which he was

connected rather than the actual mixture of methamphetamine-containing water

seized from his home. In response, the government contended that this issue was

procedurally barred because essentially the same issue had been raised and

rejected on direct appeal.   See United States v. Prichard , 875 F.2d 789, 791 (10th

Cir.1989) (“Absent an intervening change in the law of a circuit, issues disposed

of on direct appeal generally will not be considered on a collateral attack by a

motion pursuant to § 2255.”). In reply, Short maintained that his claim should not

be procedurally barred. He also made passing reference to a new issue--that the

mandatory minimum sentence imposed as a result of his prior felony drug

conviction was improper under 21 U.S.C. § 851(a)(2) because the prior conviction

had not been prosecuted by indictment and he had not waived that requirement.

       In May 1997, Short filed a motion to amend his § 2255 motion contending

that he would be able to show that amendment 484 to the Sentencing Guidelines,


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which amended application note 1 to U.S.S.G. § 2D1.1, retroactively changed the

basis on which the amount of methamphetamine should have been calculated in

this case because it provided that waste substances in which drugs are contained

should be excluded from drug quantity determinations. He stated that he would

submit an amended motion as soon as he was able to do more legal research and

to obtain certain of his legal materials that were then unavailable. On August 7,

1997, the magistrate judge ordered that he file his amended motion within thirty

days. There is no indication in the record that he did so, and on December 2,

1997, the magistrate judge recommended that Short’s motion be dismissed as

procedurally barred.

       In his objections to the magistrate judge’s recommendation, Short

contended that he did timely file an amended motion, and a “supplemental

response” that the magistrate judge failed to consider.   2
                                                              On the merits, he

contended that amendment 484 was new law that should excuse any procedural

bar. He also reasserted his § 851(a)(2) argument. The district court adopted the

magistrate judge’s recommendation and dismissed the § 2255 motion without

addressing Short’s amendment 484 and § 851(a)(2) arguments.



2
       The district court’s docket sheet does not indicate that Short ever filed an
amended motion. It does indicate that he filed a “supplemental response” a few
weeks prior to the magistrate judge’s order allowing him to amend his motion, but
this document was not available for our review.

                                            -3-
         On appeal, Short contends that his procedural default should be excused

because amendment 484 constituted a change in law and that based on that

amendment, the district court overestimated the amount of methamphetamine for

which he was sentenced. He also reasserts his § 851(a)(2) argument. Even

assuming these arguments were properly before the district court and are available

for our consideration, they do not avail Short. Section 851(a)(2) provides that an

information seeking to enhance a sentence based on a prior conviction may not be

filed “if the increased punishment which may be imposed is imprisonment for a

term in excess of three years unless the person either waived or was afforded

prosecution by indictment    for the offense for which such increased punishment

may be imposed .” (Emphasis added). Short contends that the italicized language

refers to his prior state felony drug conviction, which he claims was not

prosecuted by indictment. That language, however, refers to the federal drug

offense for which he was being prosecuted and which was obviously prosecuted

by indictment.    See United States v. Adams , 914 F.2d 1404, 1407 (10th Cir.

1990).

         Amendment 484 is not applicable to his sentence because it applies only to

cases in which the drug being quantified is mixed with waste material, which

Short contends here was waste water. However, as he admitted in his original

motion, the district court determined the amount of methamphetamine for which


                                          -4-
he was to be sentenced based on his capability to produce 2.3 kilograms of

powdered methamphetamine, and the amount of waste was therefore not a

consideration. Moreover, even if he were correct that he should have been

accountable only for two and one-half gallons of water containing

methamphetamine, he would still be subject to the twenty-year mandatory

minimum because that mixture would weigh more than one kilogram.        See 21

U.S.C. § 841(b)(1)(A)(viii).

      Short’s application for leave to proceed in forma pauperis is   GRANTED .

The judgment of the United States District Court for the District of Utah is

AFFIRMED . The mandate shall issue forthwith.

                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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