United States v. Nabors

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 95-20314 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH EUGENE NABORS, a/k/a Raymond Michael Nabors,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas (CR-H-88-306-1) - - - - - - - - - - April 16, 1996 Before JOHNSON, KING, and DEMOSS, Circuit Judges.

PER CURIAM:*

Raymond Michael Nabors appeals the denial of his 18 U.S.C.

§ 3582(c)(2) motion for modification of his term of imprisonment

for manufacturing phenylacetone. Nabors argues: that the

district court failed to distinguish among types of

methamphetamine during sentencing; that the district court should

have based his sentence on production of L-methamphetamine rather

than pure methamphetamine as a matter of lenity and because he

could not have produced pure methamphetamine; that a university

chemist calculated that he could produce only one-quarter pound

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-20314 -2-

of methamphetamine, and a more experienced manufacturer could

produce only 1.27 pounds, from the chemicals he had on hand; that

the district court should have considered retroactive application

of U.S.S.G. § 2D1.11, which provides offense levels for

possession of listed chemicals, when addressing his § 3582

motion; and that § 2D1.1 already takes relevant conduct into

account by penalizing possession of phenylacetone for production

of methamphetamine more seriously than possession for any other

reason.

Regarding the quantity of drugs on which the district court

based Nabors's sentence, we have reviewed the record and the

briefs of the parties and we find no reversible error. We

therefore affirm the denial of Nabors's § 3582 motion essentially

for the reasons given by the district court.

Nabors did not raise his contentions regarding types of

methamphetamine or retroactive application of § 2D1.11 in the

district court. Nor did Nabors present any scientific evidence

to the district court regarding the manufacture of

methamphetamine. We find no plain error regarding retroactive

application of § 2D1.11 or types of methamphetamine that could

have been produced. See United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994)(en banc), cert. denied, 115 S. Ct. 1266

(1995).

Finally, we will not supplement the record on appeal to

include Nabors's alleged expert evidence; Nabors did not present

that evidence to the district court. See United States v. No. 95-20314 -3-

Okoronkwo, 46 F.3d 426, 435 (5th Cir.), cert. denied, 116 S. Ct.

107 (1995).

AFFIRMED.