United States v. Hoster ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50135
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH VERNON HOSTER,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-91-CR-168-1
- - - - - - - - - -
(October 18, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Keith Hoster has appealed the district court's denial of his
motion to reduce his prison term, which he requested on authority
of 18 U.S.C. § 3582(c)(2). We affirm.
Hoster asserts, based on Amendment 484 to the Sentencing
Guidelines, § 2D1.1, comment. (n.1), that the 110 pounds of
phenylacetic acid should not have been included in the total drug
quantity used to determine his base offense level. He reasons
that acid is not a "drug" but a "chemical," which cannot be
counted because it never was processed into amphetamine. Hoster
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-50135
-2-
asserts that this court's opinion on his direct appeal
erroneously provided a "made up" method to allow such
calculation, in violation of the Guidelines.
Amendment 484 is not applicable to Hoster's sentence because
the phenylacetic acid was not and was not treated as a "mixture
or substance containing a detectable amount of the controlled
substance," to quote a footnote to the Drug Quantity Table,
U.S.S.G. § 2D1.1(c). The district court properly considered
Hoster's purchase of phenylacetic acid as relevant conduct.
U.S.S.G. § 1B1.3(a)(2); see United States v. Hoster, 988 F.2d
1374, 1379 (5th Cir. 1993).
Hoster's contention that this court decided his direct
appeal incorrectly is foreclosed by rules of stare decisis.
First, a panel of this court may not overrule a prior dispositive
panel decision unless there has been a superseding decision of
the court sitting en banc or of the Supreme Court. United States
v. Crouch, 51 F.3d 480, 483 (5th Cir. 1995). Furthermore, a
panel of this Court will "follow the prior decisions in a case as
the law of that case" unless "(i) the evidence on a subsequent
trial was substantially different, (ii) controlling authority has
since made a contrary decision of the law applicable to such
issues, or (iii) the decision was clearly erroneous and would
work a manifest injustice." Alberti v. Klevenhagen, 46 F.3d
1347, 1351 n.1 (5th Cir. 1995) (citation and quotation marks
omitted). Accordingly, this court will not reexamine any issue
of law which the court determined upon Hoster's direct appeal.
AFFIRMED.