UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 97-2186
v.	(D. New Mexico)
GEORGE TANNEHILL,

Defendant - Appellant.	(D.C. No. CR 88-31-05)

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

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.

George E. Tannehill III, a federal inmate appearing pro se, appeals the district court's denial of his motion pursuant to 18 U.S.C. § 3582(c)(2). We affirm.

In August 1988, Mr. Tannehill pled guilty to a conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. In October 1988, based on an offense level of 36 and a criminal history category of III, he was sentenced to 144 months' imprisonment or, in the alternative, to 235 months' imprisonment followed by five years' supervised release.1 After filing two unsuccessful § 2255 motions, Mr. Tannehill filed a motion to reduce his sentence pursuant to § 3582(c)(2). This motion was denied by the district court in May 1997, and Mr. Tannehill filed a timely notice of appeal.2

On appeal, Mr. Tannehill asserts that Amendment 484 to U.S.S.G. § 2D1.1 lowered the sentencing range for his offense and thus justifies relief under § 3582(c)(2).3 Under § 3582(c)(2), if, after a defendant is sentenced, the Sentencing Commission lowers the applicable sentencing range, the defendant may move for a reduction of sentence in accordance with the factors outlined in § 3553(a).4

Mr. Tannehill is correct that Amendment 484 was enacted subsequent to his sentencing and can be applied retroactively. See U.S.S.G. § 1B1.10(a), (d), p.s. (Nov. 1, 1993). Amendment 484 provides: "Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used." U.S.S.G. App. C, amend. 484. Mr. Tannehill asserts that the 428 jars of methamphetamine oil seized from him were weighed wet, thus amounting to 600 pounds of methamphetamine rather than the 38 pounds which would have been calculated had the mixture been weighed dry. Appellant's Br. at 2. Because the oil in the mixture must be removed before the methamphetamine can be used, Amendment 484, if applied, could lower Mr. Tannehill's guideline sentencing range.

However, even if the amendment does potentially lower Mr. Tannehill's guideline range,

[t]he retroactive application of a change in the offense level of the Sentencing Guidelines is not required by § 1B1.10(a), but rather falls within the district court's discretion. . . . Under the abuse of discretion standard we will not reverse a district court's decision unless we have "a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances."

Dorrough, 84 F.3d at 1311 (quoting Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994)). Here, the district court declined to reduce Mr. Tannehill's sentence, stating that "nothing in the record indicates that [his] sentence was based exclusively on the amount of controlled substance recovered." R. Vol. I at tab 6, Mem. Op. and Order at 2. The court noted that although "[n]either of the parties, nor the record, provides the calculation by which Defendant's sentence was determined," the sentence could have been correctly calculated on the basis of two other factors: (1) the aggregate amount of narcotics based on the conspiracy; and (2) the approximated amount of narcotics based on the estimated capability of the laboratory. Id. at 1, 3. The district court concluded that because the sentence could remain undisturbed on either of these grounds, Mr. Tannehill's arguments are unavailing. We agree. See United States v. Youngpeter, 986 F.2d 349, 354 (10th Cir. 1993) (calculating sentence with reference to the entire quantity of drugs manufactured by the conspiracy); United States v. Sturmoski, 971 F.2d 452, 456, 462 (10th Cir. 1992) (estimating drug quantity based on the capability of the laboratory and the amount of precursor chemicals seized).5 We find no abuse of discretion in the district court's refusal to reduce Mr. Tannehill's sentence.

Accordingly, the district court's denial of Mr. Tannehill's § 3582(c)(2) motion is AFFIRMED.6

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge