United States v. Blankenship , 23 F. App'x 192 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4498
DALE BLANKENSHIP,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-01-10)
Submitted: December 10, 2001
Decided: January 24, 2002
Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
R. Clarke VanDervort, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, John C. Parr, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BLANKENSHIP
OPINION
PER CURIAM:
Dale Blankenship pled guilty to distribution of oxycodone in viola-
tion of 21 U.S.C. § 841(a)(1) (1994) pursuant to a plea agreement.
Blankenship appeals the sentence he received, alleging the amount of
drugs was incorrectly calculated. We affirm.
Blankenship contends he should be only held responsible for the
actual amount of oxycodone contained in each capsule he sold. He
contends the weight of the filler in the capsules should not be counted
in calculating the amount of drugs involved in his offense. We review
the proper method of calculating drug weight as a legal question sub-
ject to de novo review. United States v. Daughtrey, 874 F.2d 213,
217-18 (4th Cir. 1989).
Base offense levels for drug offenses are determined from the Drug
Quantity Table following USSG § 2D1.1. In a footnote to the Drug
Quantity Table, the Guidelines provide that "[u]nless otherwise speci-
fied, the weight of a controlled substance set forth in the table refers
to the entire weight of any mixture or substance containing a detect-
able amount of the controlled substance." USSG § 2D1.1. We have
held that this gross weight methodology applies to pharmaceuticals.
United States v. Meitinger, 901 F.2d 27, 29 (4th Cir. 1990); United
States v. Bayerle, 898 F.2d 28, 31-32 (4th Cir. 1990). Blankenship
nevertheless contends he should be held responsible only for the
active weight of the controlled substance. This argument was
addressed and foreclosed, however, in United States v. Bayerle, 898
F.2d at 31-32. We see no reason to depart from this well established
rule.
Accordingly, we affirm Blankenship’s sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED