(caption unavailable)

*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that this opinion should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-1842
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JEFFREY WAYNE TYREE,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(3:90 CR 014 D)
( March 12, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Jeffrey Wayne Tyree was convicted and sentenced following his
guilty plea to charges in a superseding criminal information that
he intentionally and knowingly used a telephone to facilitate the
possession of a listed chemical, 21 U.S.C. § 841(d)(1), with intent

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1 Although the penalty for violating § 843(b) is, in part, a
maximum sentence of 4 years, see § 843(c), the maximum sentence
for violating § 841(d)(1) is 10 years. See § 841(d).
2
to manufacture a controlled substance in violation of 21 U.S.C. §
841(d)(1).
The Presentence Report (PSR) indicated that a confidential
informant notified drug enforcement authorities that Tyree was
attempting to purchase phenylacetic acid, a precursor chemical used
to manufacture methamphetamine, from a janitorial supply company.
PSR ¶ 5. Tyree was later observed at a restaurant loading a
cardboard drum into his vehicle from another vehicle owned by an
employee of the janitorial supply company. Id. at ¶ 6. As he
attempted to drive away, Tyree was arrested by DEA agents and the
cardboard drum, containing phenylacetic acid, was found within
Tyree's vehicle and seized. Id. at ¶¶ 6, 9. Tyree, after being
informed of his constitutional rights, told one agent that he
purchased the drum for $8000 and that the chemical would yield
about 15 pounds of amphetamine. Id. at ¶ 8. The factual resume
made part of the plea agreement shows that Tyree purchased the
chemical with the intention of manufacturing methamphetamine. The
drum weighed 110 pounds. PSR, ¶¶ 1, 13.
In determining the base offense level, the PSR relied on
U.S.S.G. § 2D1.1, the guideline for § 841(d)(1), because Tyree's
guilty plea established facts that proved a more serious offense
than the offense of conviction.1 PSR ¶ 12; see § 1B1.2, comment.
(n.1). The PSR calculated a base offense level by converting 110
pounds of phenylacetic acid into 44 pounds of phenylacetone, then

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3
converting 44 pounds into grams, or 19,958.4 grams. The PSR
further reported that, "[f]or conversion purposes, 1 gram of
[phenylacetone], when possessed for the purpose of manufacturing
methamphetamine, equals 2.08 grams of cocaine; 19,958.4 grams of
[phenylacetone] times 2.08 grams of cocaine equals 41,513.5 grams
or 41.5 kilograms of cocaine." PSR ¶ 13. The Drug Quantity Table
under § 2D1.1(c)(5) fixes a base offense level of 34 for drug-
equivalency quantities between 15 and 50 kilograms. PSR ¶ 13.
The PSR calculated a total offense level of 34 and a criminal
history category of II. PSR ¶¶ 13-20, 27. Tyree's sentence was
reduced markedly because of his plea agreement, which was based on
a violation of § 843(b). Because the corresponding guideline
range of 168 to 210 months for § 841(d)(1) offenses exceeds the
statutory maximum of 48 months for § 843(b) offenses, the guideline
range is fixed at 48 months. Id. at ¶ 34-35; see § 5C1.1(a). The
district court accordingly sentenced Tyree to 48 months
incarceration.
Tyree filed a § 2255 motion to vacate, set aside, or correct
sentence, alleging that he had insufficient time to read the PSR
before sentencing and that his sentence was based on incorrect
information. A magistrate judge recommended that the district
court deny his motion, concluding that he failed to establish "good
cause" for not directly appealing his sentence. Tyree filed
objections to the magistrate judge's recommendations, alleging, in
part, that counsel failed to inform him of his right to appeal.
The district court adopted the findings and recommendations of the

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magistrate judge and denied Tyree's motion, noting that, because
the statutory maximum became the guideline sentence with no
apparent basis to reduce it, it was not necessary, under Fed. R.
Crim. P. 32(a)(2), for the court to inform Tyree of his right to
appeal.
Tyree appealed and this Court reversed and remanded for an
evidentiary hearing to determine whether counsel had informed Tyree
of his right to appeal. United States v. Tyree, (No. 91-7301) (May
20, 1992) (unpublished). This Court held, in part, that, "[s]hould
the district court find that Tyree's attorney failed to inform him
of his right to appeal, Tyree will be entitled to an out-of-time
appeal."
On remand, an evidentiary hearing was held before a magistrate
judge, who found that counsel did not inform Tyree of his right to
appeal. The magistrate judge recommended that (1) Tyree be granted
an out-of-time appeal, (2) Tyree's original sentence be vacated,
and (3) he be resentenced. The district court granted an out-of-
time appeal but did not vacate Tyree's original sentence.
OPINION
The sentence
Tyree argues that the district court erred when it sentenced
him based on information he provided to a DEA agent. This argument
lacks merit.
A sentence imposed by the trial court will be upheld so long
as the sentence was determined by a proper application of the
guidelines to facts that are not clearly erroneous. United States

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v. Buenrostro, 868 F.2d 135, 136-37 (5th Cir. 1989), cert. denied,
495 U.S. 923 (1990). Furthermore, where no challenge to the
underlying facts is raised, the court is free to adopt the facts
reported in the PSR without further inquiry. United States v.
Rodriguez, 897 F.2d 1324, 1326-27 (5th Cir.), cert. denied, 111 S.
Ct. 158 (1990). Information relied upon by the court in sentencing
must have some indicia of reliability. See U.S.S.G. § 6A1.3(a),
p.s.
Objections regarding sentencing raised for the first time on
appeal are reviewed for plain error. United States v. Goldfaden,
959 F.2d 1324, 1327 (5th Cir. 1992); United States v. Lopez, 923
F.2d 47, 50 (5th Cir.), cert. denied, 111 S. Ct. 2032 (1991).
Plain error occurs when failure to consider the issue results in
"manifest injustice." Lopez, 923 F.2d at 50.
The record does not support Tyree's assertion that it
sentenced him according to his statement to a DEA agent that the
phenylacetic acid would produce fifteen pounds of amphetamine.
Rather, the district court adopted the calculations in the PSR
which resulted in considerably higher yields of amphetamine. The
findings by the Probation Department, unopposed by Tyree at the
sentencing hearing, contained the necessary indicia of reliability.
Nor does Tyree demonstrate how the district court erred when it
applied the sentencing guidelines.
For reasons set forth above, the sentence imposed by the
district court was not plain error.
The criminal information

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Tyree argues that the charge for which he pleaded guilty was
invalid because he never had the "intent to manufacture a
controlled substance" and because the charge was not supported by
an underlying crime. He argues further that "phenylacetic acid" is
not a listed chemical.
General principles addressing the adequacy of a charging
instrument apply equally to the indictment and criminal
information. See Fed. R. Crim. P. 7(c). An indictment is
sufficient if it contains the elements of the offense, fairly
informs the defendant of the charges, and enables the defendant to
plead acquittal or a conviction as a defense to future prosecutions
for the same offense. United States v. Moody, 923 F.2d 341, 351
(5th Cir.), cert. denied, 112 S. Ct. 80 (1991). The indictment
must contain the essential facts constituting the offense and must
allege each material element of the offense. United States v.
Harper, 901 F.2d 471, 473 (5th Cir. 1990). It is generally
sufficient when the indictment tracks the statutory language
defining the offense. Moody, 923 F.2d at 351. A failure to raise
objections to an indictment during pretrial proceedings will result
in waiver of rights otherwise violated. United States v. Wylie,
919 F.2d 969, 972 (5th Cir. 1990); see Fed. R. Crim. P. 12(b)(2),
12(f).
Tyree failed to challenge the indictment or superseding
criminal information during pretrial proceedings. In such cases,
this Court should read the criminal information liberally. Wylie,
919 F.2d at 972. The criminal information charged that Tyree

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[o]n or about December 28, 1989 . . . intentionally and
knowingly did unlawfully use a communication facility,
that is, a telephone, in facilitating the possession of
a listed chemical with the intent to manufacture a
controlled substance, a felony pursuant to Title 21,
United States Code, Section 841(d)(1) . . . [and] used
said telephone to discuss with a person known to the
United States Attorney and the defendant, the purchase
and delivery of phenylacetic acid, a chemical used in
manufacturing a controlled substance [. . . i]n violation
of Title 21, United States Code, Section 843(b).
The criminal information tracked the statutory language and
contained the essential facts constituting material elements of the
offense. See 21 U.S.C. § 843(b). Tyree's "plea agreement/factual
resume" provided the "elements of the offense" and material facts
underlying his guilty plea. Because phenylacetic acid is a "listed
precursor chemical" pursuant to 21 U.S.C. § 802(34)(H), Tyree's
argument that the chemical is not listed lacks merit.
Tyree argues for the first time on appeal that the plea
agreement was coerced and that he had no opportunity to read the
factual resume. The transcript of the plea hearing, however, shows
that the guilty plea was valid and supported by a factual basis.
The district court also accepted the plea agreement and noted that
it dropped Tyree's minimum sentence from 168 to 48 months.
For reasons set forth above, the district court did not
plainly err when it convicted and sentenced Tyree for violating
§ 843(b) as charged in the criminal information.
Good behavior
Tyree argues for the first time on appeal that his "good
behavior" and "unusual personal characteristics," including high
work performance ratings, merit his release from confinement.

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Tyree supports his argument with copies of performance ratings from
the federal prison's central file and various academic
certificates.
Tyree does not challenge the validity of any ruling made by
the district court. This Court need not address this issue because
it is frivolous.
Time to review PSR
Tyree argues that, because his attorney requested additional
time to go over the PSR with him, the district court's failure to
permit it violated local rule 10.9, Fed. R. Crim. P. 32(a)(1)(A),
and Burns v. United States, ___ U.S. ___, 111 S. Ct. 2182, 2187,
115 L. Ed. 123 (1991). This argument lacks merit.
A defendant is entitled to an opportunity to review the PSR
and file objections. See Fed. R. Crim. P. 32(a). The district
court complied with Rule 32(a)(1)(A), which requires that the
district court ascertain whether the defendant has gone over the
PSR with his attorney.
The local rule upon which Tyree relies requires written
consent by the defendant where the defendant is given less than ten
days to file written objections to the PSR. Rule 10.9, Local Rules
for Northern District of Texas, amended January 1, 1989. At the
sentencing hearing, Tyree's attorney informed the district court
that, because Tyree had only seen the PSR that day, he believed
that the hearing should be postponed to allow more time for Tyree
to review the PSR. The district judge, however, allowed Tyree an
opportunity at the sentencing hearing to discuss the PSR with his

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attorney. This was an acceptable alternative to Tyree and his
attorney. Tyree went through the PSR with his attorney and found
"nothing factually wrong with the presentence investigation
report." At that time, Tyree's attorney indicated that they were
both ready to proceed with the sentencing hearing. Because there
were no objections, the local rule was irrelevant, or
alternatively, it was waived. The district court concluded that
Tyree had an "ample opportunity to point out inaccuracies in the
PSR." That ruling was not plain error.
Nor does Tyree's argument trigger reversal under Burns, an
upward-departure case. Tyree was sentenced within the range
determined by the sentencing guidelines, therefore his sentence was
not an upward departure requiring "reasonable notice." See United
States v. Williams, 937 F.2d 979, 981 (5th Cir. 1991) (citing
Burns, 111 S. Ct. at 2187). Nonetheless, in light of the above,
Tyree received "reasonable notice."
Not only is Tyree bound by his guilty plea to the facts stated
therein, see, e.g., United States v. Broce, 488 U.S. 563, 570, 109
S. Ct. 757, 102 L. Ed.2d 927 (1989), but the PSR put Tyree on
notice to assure that all information in the PSR was correct. See
United States v. Gaudet, 966 F.2d 959, 962 (5th Cir.), petition for
cert. filed, (Nov. 16, 1992) (No. 92-6597). Having failed to
oppose the facts and conclusions set forth by the PSR, Tyree must
show that the district court plainly erred when it adopted the PSR
and sentenced him accordingly. For reasons set forth above, Tyree
has not made such a showing.

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Procedural bar of § 2255 issues
Tyree argues that the district court erred when it dismissed
claims in his § 2255 petition as procedurally barred under United
States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc), cert.
denied, 112 S. Ct. 978 (1992). Although this argument lacks merit
and was previously rejected by this Court, United States v. Tyree,
at 4 (No. 91-7301) (May 20, 1992) (unpublished), Tyree misstates
the standard of review. Because the Tyree was granted this out-of-
time appeal for failure of counsel to inform Tyree of his right to
appeal, any issues properly raised are directly before this Court.
The procedural bar under Shaid, which applies to § 2255 motions, is
thus irrelevant. As set forth above, Tyree's arguments lack merit
even under the broader review afforded to issues on direct appeal.
Judgment affirmed.

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