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 1995-08

United States v. Thomas ( 1995 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-40040
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNOLD G. THOMAS,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:89-CR-178-2
- - - - - - - - - -
(October 17, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Arnold G. Thomas appeals the denial of an
    18 U.S.C. § 3582
    (c)(2) motion for sentence reduction pursuant to Amendment
484 to the Sentencing Guidelines.   In the alternative, Thomas
argues that Amendment 371 to U.S.S.G. § 2D1.11 should have been
used to calculate his sentence.
Amendment 484 changed application note 1 to U.S.S.G. § 2D1.1
by explaining that the term "mixture or substance" does not
*
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that this opinion should not be published.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. 95-40040
-2-
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 (Nov. 1993).    Amendment 484 has been given
retroactive effect.   Id.; see § 1B1.10(d) (Nov. 1993).
However, Thomas's base offense level was determined by the
amount of drugs that could have been produced from the 550 pounds
of phenylacetic acid that the conspiracy sought to purchase.
Thomas did not contend that the phenylacetic acid contained waste
products.   Amendment 484 is not applicable to Thomas's case.
Thomas's § 2D1.11 argument was not raised in the district
court.   "[I]ssues raised for the first time on appeal are not
reviewable by this court unless they involve purely legal
questions and failure to consider them would result in manifest
injustice."   Varnado v. Lynaugh,
    920 F.2d 320
    , 321 (5th Cir.
1991) (internal quotations and citation omitted).    In any event,
the argument is meritless.    See United States v. O'Leary,
    35 F.3d 153
    , 154-55 (5th Cir. 1994); United States v. Bellazerius,
    24 F.3d 698
    , 703 (5th Cir.), cert. denied,
    115 S. Ct. 375
     (1994).
The decision of the district court is AFFIRMED.