United States v. Raymond J. Stewart ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4533
RAYMOND J. STEWART,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-96-123)
Submitted: December 29, 1999
Decided: January 24, 2000
Before NIEMEYER and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
John R. McGhee, Jr., KAY, CASTO & CHANEY, P.L.L.C., Charles-
ton, West Virginia, for Appellant. Rebecca A. Betts, United States
Attorney, Michael L. Keller, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Raymond J. Stewart appeals the sentence imposed by the district
court for conspiring to distribute methamphetamine in violation of 21
U.S.C. § 846 (1994). This court previously remanded this case for
resentencing so that the district court could apply the 1994 edition of
the U.S. Sentencing Guidelines. See United States v. Stewart, No. 98-
4452 (4th Cir. Apr. 12, 1999) (unpublished). On remand, the district
court employed the proper edition of the Guidelines and determined
that Stewart should be sentenced based on the guidelines applicable
to d-methamphetamine. Finding no clear error in the district court's
factual determination, we affirm Stewart's sentence.
In this appeal, Stewart challenges his sentence asserting that the
district court erred in finding that the drug involved in the conspiracy
was d-methamphetamine, as opposed to l-methamphetamine. Both l-
methamphetamine (short for "levomethamphetamine") and d-
methamphetamine (short for "dextromethamphetamine") are isomeric
forms of methamphetamine. See United States v. McEntire, 153 F.3d
424, 431 (7th Cir. 1998). Thus, while they have the same chemical
formula, they have different chemical structures and markedly differ-
ent effects on a user. See id. L-methamphetamine produces little or no
physiological effect when ingested, while d-methamphetamine "pro-
duces a profound physiological effect, creating the high desired by the
drug's users." Id.The Sentencing Guidelines applicable to Stewart's offense, specifi-
cally the 1994 edition, treated the two isomers of methamphetamine
differently. See id.; Stewart, No. 98-4452, slip op. at 9. One gram of
l-methamphetamine was converted to forty grams of marijuana, while
one gram of d-methamphetamine was equated with one kilogram of
marijuana. See USSG § 2D1.1 comment. (Drug Equivalency Tables)
(1994). Consequently, the district court's conclusion that the drug was
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d-methamphetamine resulted in a significantly higher sentence. Stew-
art claims he should have been sentenced under the more lenient pro-
visions governing l-methamphetamine.
The government must prove by a preponderance of the evidence
the type of drug involved in an illegal conspiracy. See United States
v. O'Bryant, 136 F.3d 980, 981-82 (5th Cir. 1998). The district
court's determination of the type of drug involved is a finding of fact
which is reviewed for clear error. See McEntire , 153 F.3d at 431.
After reviewing the evidence of record, including testimony regarding
the intoxicating effect of the substance Stewart distributed and the
amount he paid for the methamphetamines, we are not left with the
"definite and firm conviction" that the district court made a mistake
in concluding that the controlled substance was d-methamphetamine.
See United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948); see also United States v. Scrivner, 114 F.3d 964, 968-69 (9th
Cir. 1996); United States v. Loveless, 139 F.3d 587, 593 (8th Cir.
1998).
Accordingly, Stewart's sentence is affirmed. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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