Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

MEMORANDUM^* 

Appellant Randy Allen Eldridge pleaded guilty to one count of conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. § 841(a) (1). Eldridge was sentenced to 78 months' incarceration, to be followed by 4 years' supervised release. Eldridge appeals his sentence, arguing the district court miscalculated the quantity of methamphetamine involved, and erroneously declined to depart downward from the Guideline range. We affirm.

The duration of the sentence for narcotics convictions is based in part upon the quantity of narcotics involved. See Guidelines Sec. 2D1.1(a) (3). "Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance." Guidelines Sec. 2D1.4 Application Note 2. Here, federal agents seized 23.91 grams of methamphetamine. The district court correctly determined this amount did not reflect the scale of the offense.

Federal agents searching Eldridge's home found a fully operational methamphetamine laboratory and 10 pounds of ephedrine, a chemical used in the manufacturing of methamphetamine. The parties agree this ephedrine would have been used by Eldridge's co-conspirators to produce substantially more methamphetamine than the amount actually seized. Government chemists testified that 10 pounds of ephedrine would yield 8 pounds of methamphetamine. The district court accepted this testimony and, in apparent reliance upon Application Note 2, sentenced Eldridge as if 8 pounds of methamphetamine had been seized.

Relying upon language in Guidelines Sec. 2D1.4 Application Note 1, stating that "the weight under negotiation in an uncompleted distribution" should be used in calculating the offense level, Eldridge argues his offense level should have been based upon only 5 pounds of methamphetamine because his co-conspirator, Steven Pavlovich, reached an agreement with his ephedrine supplier to produce 5 pounds of methamphetamine for every 10 pounds of ephedrine supplied.

We need not address the applicability of Note 1 because the record reveals no agreement between Pavlovich and his ephedrine supplier regarding the amount of methamphetamine to be produced. Pavlovich merely represented to the supplier that he was capable of manufacturing 5 pounds of methamphetamine if he was supplied with 10 pounds of ephedrine. The district court was within its discretion rejecting Pavlovich's out-of-court prediction in favor of the testimony of expert witnesses.

Eldridge contends the district court erred in failing to depart downward based upon Eldridge's reduced mental capacity at the time of the crime. However, Guidelines Sec. 5K2.13, upon which Eldridge relies, merely gives the sentencing judge discretion to depart downward. Guidelines Sec. 5K2.13. The sentencing court's discretionary refusal to depart downward is unreviewable. United States v. Morales, 898 F.2d 99, 102-03 (9th Cir. 1990). Eldridge's claim that the district court erroneously believed Eldridge's voluntary drug use foreclosed the exercise of discretion under this section is without any support in the record.

AFFIRMED.