*1 STATES CHAPMAN UNITED et al. v. May 30, Argued March 1991 Decided
No. 90-5744. *2 Rehnquist, White, J., Court, opinion C. delivered the which Blackmun, O’ConnoR, Scalia, Kennedy, SouteR, JJ., joined. Stevens, Marshall, J., J., dissenting opinion, joined, filed a in which post, p. 468. Christopher Kelly,
T. Court, by appointment the cause and filed briefs for argued petitioners. Bergerson Donald Thomas filed briefs for Stanley Marshall, under 12.4, this Court’s Rule reversal. respondent urging Larkin, Jr., Paul *3 J. the argued cause the United Starr, brief were Solicitor General him on the States. With Attorney Deputy Mueller, Assistant General Solicitor and * Bryson. General the delivered of the opinion Rehnquist Chief Justice Court. 841(b)(l)(B)(v)
Section of Title of the United States for a Code calls minimum sentence of five mandatory years for the offense of more than one of a “mix- distributing gram ture or substance a detectable amount of containing lysergic (LSD).” diethylamide acid We hold that it is the weight LSD, of the blotter and not the paper containing weight LSD, the which determines for the minimum pure eligibility sentence.
Petitioners Richard L. John M. Chapman, Schoenecker, Patrick Brumm (1,000 and were convicted of 10 sheets selling doses) 841(a). of blotter in paper containing LSD, violation of The District Court included the total of the weight and paper the of the determining LSD to be used cal- weight sentences. culating petitioners’ the Accordingly, although of the LSD alone was weight approximately milligrams, the 5.7 combined and grams weight blotter re- paper
*Alan Ellis Kevin Zeese filed a brief for the Drug Policy and Founda- tion et al. as amici curiae urging reversal. mandatory imposition minimum sentence in the
suited 841(b)(l)(B)(v) § distributing years required of five gram a mixture or substance de- more than of a grams The entire 5.7 was also used tectable amount of LSD. level under the United States base offense to determine the (1990) (Sentenc- Sentencing Commission, Guidelines Manual Guidelines).1 claiming appealed, ing that Petitioners weight only paper medium, carrier and that its blotter weight drug for in the of the sentenc- should not be included Alternatively, they argued ing purposes. that the statute Sentencing require so in- were construed as Guidelines paper or carrier medium when cal- other clusion of blotter right weight drug, culating this would violate the of the equal protection incorporated in the Due Process Clause of the Fifth Amendment. Appeals for the Circuit en banc held
The Court of
Seventh
weight
paper
other
should
or
carrier
blotter
con-
included
the “mixture
substance
computing
taining
amount” of LSD when
a detectable
distributing
sentence for defendant convicted
LSD.
Appeals
Congress had a
found that
rational
Court of
also
along
including
basis for
the carrier
drug,
the statute
Guide-
and therefore
v. Mar-
did not
the Constitution. United States
lines
violate
*4
granted
shall,
certiorari,
We
“any person subsection of this section who violates knowingly intentionally [making it or manu- unlawful dispense, possess or intent to distribute, facture, dispense, distribute, sub- or a controlled manufacture, stance] shall be sentenced as follows: months; Chapman was sentenced to was to 96 Schoenecker sentenced imprisonment. Brief months; to months’ and Brumm was sentenced 4. for Petitioners
“(1)(B) (a) In the case of a violation of subsection involving— this section
“(v) gram1 or more of a mixture or substance contain- lysergic diethylamide ing a amount acid detectable (LSD); person imprison- shall be sentenced to a term of
“such may years not be less than 5 . . . ment .which 841(b)(1)(A)(v)provides mandatory for a minimum Section (a) years’ imprisonment a in violation subsection volving grams more a or “10 or of mixture substance contain 2D1.1(c) ing [LSD].” amount a detectable Section Sentencing Commission, Guidelines Manual (1991)parallels statutory language requires the base upon offense level to be determined based of a “mixture or substance a detectable amount of” LSD.
According in Commission, the LSD an average weighs milligrams; dose 0.05 there are therefore pure gram. pure in 20,000 doses dose is such an infini that it to retail tesimal amount must be sold customers Pure is dissolved in a solvent “carrier.” such as alco sprayed paper gelatin, and either the solution is on or or hol, paper dipped evaporates, the solution. The solvent leaving trapped paper gel. minute amounts of LSD or paper gel squares or is cut into “one-dose” Then and sold by squares, the dose. Users either swallow the lick them drop beverage, released, until the them into a thereby releasing drug. Although gelatin paper are light, they weigh much more than the LSD. The ten sheets paper carrying by petitioners 1,000 of blotter doses sold weighed grams; weighed only 5.7 the LSD itself about 50 milligrams, gram necessary trig not even close to the one *5 §841(b)(1)(B)(v). ger 5-year mandatory minimum the of 458 841(b) require that should not that the argue
Petitioners computing appro- the carrier be included when the weight distribution, for words “mixture LSD the priate sentence to or are and should not be construed ambiguous substance” dose, LSD sold by reach result. Because illogical an the carrier rather the LSD should by weight, weight than determining not be included when a defendant’s sentence be- culpability. argue cause it irrelevant to that includ- They results, carrier leads to anomalous viz: ing the weight 19,999 doses major caught pure wholesaler subject would not be minimum sen- 5-year mandatory a minor with 200 doses on blotter tence, pusher paper, while cube, subject dose would sugar or even one on be Thus, they contend, minimum sentence.2 mandatory excluded, weight of the carrier should be determined, should be should pure LSD used sentence. to set appropriate Guidelines, Likewise, selling under same those subject widely varying depending number would be sentences of doses upon example, selling carrier medium was For those which used. following disparate doses would receive the sentences: omitted). (footnotes Brief Petitioners 11 using vary among paper, Even dealers blotter the sentences can because paper the blotter varies from dealer to dealer. Petitioners’ weight of LSD, 1,000 grams, weighed doses of 5.7 or 5.7 paper, blotter Rose, (CA7 milligrams per In States v. F. 2d dose. United 1989), per paper weighed grams, milligrams on 7.3 15.4 472 doses blotter (CA6 Elrod, 1,990 1990), F. on dose. In States v. 2d doses milligrams weighed grams, per or 5.5 dose. In United paper blotter (DC 5,000 Healy, Supp. 1990), doses on blotter States per paper weighed grams, milligrams 44.133 or 8.8 dose. *6 petitioners’ reading think that We of the statute —a read- ing penalty weight drug that makes the turn on the net of the gross weight drug rather than the the carrier and to- gether plausible not a one. The statute refers to a'“mix- —is containing long ture or substance amount.” detectable So as it contains a detectable amount, the entire mixture or sub- weighed calculating stance is to be when the sentence. reading This is confirmed the structure of the statute. respect drugs, including to various With heroin, cocaine, provides mandatory it LSD, minimum sentences for involving weights crimes certain of a “mixture or substance containing drugs. respect a detectable amount” of the With (PCP) drugs, namely phencyclidine to other however, methamphetamine, provides mandatory for a minimum weight sentence either based on the of a mixture or substance containing drug, a detectable amount of the or on lower weights pure methamphetamine. example, PCP or For 841(b)(1)(A)(iv) provides mandatory 10-year for a minimum any person grams sentence for who distributes “100 or more kilogram of. . . PCP ... or or more of a mixture or sub containing stance a detectable amount of. . . PCP. . . .” respect drugs, Congress clearly Thus, with to these two dis tinguished pure drug between the and a “mixture or sub pure drug. stance a detectable amount of” the respect drugs petitioners But with such as LSD, which dis Congress tributed, declared that sentences should be based exclusively weight on the of the “mixture or substance.” Congress weight pure knew how to indicate that drug to be used to sentence, was determine the and did not respect make that distinction with to LSD.
Petitioners maintain that could not have in- weight sentencing to include the tended of an LSD carrier for purposes nearly because the carrier will constitute all of the weight of the unit, will, therefore, the sentence be entire drug. on carrier, based rather than the point drugs The same can be made about like heroin and co- Congress clearly dilutant, intended the however, and caine, agent, cutting in the medium to included or carrier sentencing ingredients purposes. drugs Inactive ofthose pure cocaine, are heroin or and mixture combined heavily drug. diluted form of then sold to consumers as *7 of the mixture cases, In the concentration some g., Buggs, very v. 904 2d 1070 E. States F. low. United (CA7 1990)(1.2% heroin); Dorsey, 198 United States (1978) (2% heroin); App. 2d 922 313, D. C. (CA8) (2.7% heroin), Smith, 972 8.5% 601 F. 2d States v. (1979). But, 879 the carrier is denied, 444 U. S. cert. containing a detectable amount of “mixture or substance language weight drug,” of of the statute the then under the weight pure not the of the substance, mixture controlling. drug, is Congress’ attempts illegal drug history of to control
The why Congress chose the course that shows distribution sentencing. Comprehensive Drug respect did to 91-513, Act Pub. L. 1970, and Control of Abuse Prevention drugs by according poten- to 1236, 84 divided schedules Stat. 1(c), listed schedule which listed tial for abuse. LSD was compound, preparation, “any material, mixture, or which following hallucinogenic any quantity of sub- contains 202(c). § including L. That 91-513, LSD. Pub. stances,” quantity drug pos- penalties link law did drug depended upon penalties instead whether sessed; or not. as a narcotic was classified Act Substances Penalties Amendments The Controlled chapter Comprehensive 1984, which was Crime L. first made 98-473, 2068, Pub. 98 Stat. Control Act quantity dependent upon punishment of the controlled The maximum for distribution involved. sentence substance years. grams 21 U. S. C. offive or more LSD was set at II). (1982 841(b)(l)(A)(iv) Supp. amend- ed., The 1984 penalty provide “to a more rational ments were intended major trafficking Rep. drug offenses,” S. structure for the (1983),by eliminating sentencing dispara p. 98-225, No. by classifying drugs and nonnarcotic. as narcotic ties caused upon the were based instead Id., at 256. Penalties McGeehan, pure involved. See (CA8 1987), denied, cert. 484 U. S. F. 2d (1988). originated penalties for LSD distribution
The current Anti-Drug 99-570, L. 100 Stat. Abuse Act of Pub. approach adopted a “market-oriented” 3207. quantity drug trafficking, punishing which the total under pure drug the amount of distributed, rather than what is length of the sentence. to determine the involved, is used pt. pp. Rep. To im 11-12, 98-845, H. R. No. mandatory principle, Congress plement minimum set corresponding of a “mixture or sub sentences amount of” the various con a detectable stance 841(b)(1) §§ including S. C. substances, LSD. U. trolled *8 (B)(i)-(viii). (A)(i)-(viii) penalties It intended the and according trafficking graduated to be they drugs uncut, found — cut or in whatever form were the ready impure, ready pure or for distribution for wholesale or punish retail not want to retail level. did at the severely, though they deal smaller traffickers less even keep pure drug, quantities such traffickers because Rep. supra, going. 99-845, markets H. R. No. the street pt. p. 12. paper blot- case, the used this and
We think that
blotter
customarily
paper
LSD, is a “mixture
used to distribute
ter
In so
a detectable amount” LSD.
or substance
holding,
conclusion of the Courts
we confirm the unanimous
Appeals
Neither the stat-
have addressed the issue.3
Larsen,
(CA10
1990); United States v.
United States
v.
ute nor the they any have common- “substance,” nor do established and given meaning. their terms, therefore, must be law Those meaning. ordinary States, 498 U. S. Moskal v. United See (1990). portion “a A “mixture” is to include defined consisting components not that do of two or more of matter proportion thor- another that however fixed one bear a oughly commingled retaining separate regarded ex-
are as a Dictionary International Third New istence.” Webster’s may of two substances A “mixture” also consist particles together are that the of one diffused so blended English particles among Diction- of the other. Oxford (2d 1989). paper ary applied is to blotter ed. ultimately paper into solvent, which absorbed evaporates, evaporates. solvent the LSD is left After the paper. “mix” can said to with in form that be behind paper, they crystals so that are are inside The LSD commingled chemically com- but the LSD does it, separate paper. Thus, retains a existence bine with the paper liquid by dropping into a or be and can swallowing released among paper itself. The LSD is diffused paper. cut- Like heroin or cocaine mixed with fibers of the distinguished ting agents, be from the blot- the LSD cannot cutting easily separated agents paper, it. Like nor from ter drugs ingested, paper, other that are blotter used with carrying ingested gel, sugar LSD can and often or cube drug. with the argue “mixture” “substance” that the terms
Petitioners dictionary meaning given because then the cannot be their *9 glass interpreted carriers like a vial to include clause couldbe drugs being transported, in which the are or an automobile making phrase But such nonsense is thus nonsensical. necessary giving the term “mixture” its dic- result of not the meaning. tionary not in a bot- The term does include LSD Rose, Taylor, (CAT 1989); States F. 2d 1989). (CA5 2d 127-128 drug easily distinguished tie, or in a car, because the separated drug from, from, such a “container.” The clearly glass not mixed with a vial or automobile; nor has the drug chemically may bonded with the vial or car. It be true weights packaging that the gen- of containers and materials erally determining are not included a sentence for dis- clearly tribution, but that is because those items are also drug. mixed or otherwise combined with the argue excluding Petitioners of the LSD determining carrier when a sentence is consistent with estab- principles statutory they lished argue construction. First, lenity requires ambiguous that the rule of an statute of this type to be construed in favor of the defendant. Petitioners argue also that the statute should be construed to avoid a se- question interpretation rious constitutional and an of the stat- require ute that violating would it to be struck down as due process. lenity, applicable
The rule of however, is not unless there “grievous ambiguity uncertainty is a language in the structure of the Act,” States, Huddleston v. United 415 U. S. (1974), 814, 831 such that “‘seize[d] even after a court has every thing from which aid can be derived,’” it is still “left ambiguous with an statute.” Bass, United States v. (1971) (quoting U. S. Fisher, United States v. (1805)). lenity] [of Cranch 358, 386 “The rule comes into operation process construing at the end of the what Con- gress expressed, beginning has overriding not at the as an being wrongdoers.” consideration of lenient to Callanan v. States, g., 364 U. S. also, See e. supra, statutory States, Moskal v. United at 107-108. The language and structure indicate that the of a carrier should be included aas “mixture or substance determining detectable amount” of LSD when the sentence for 841(b) straightforward reading an A LSD distributor. produce glaringly unjust,’” does not a result “so ‘absurd or (1984)(citation Rodgers, United States v. 466 *10 Congress’ in- omitted), about a “reasonable doubt” as to raise supra, is 108. There no States, v. Moskal United tent. lenity in these circumstances.4 rule of reason to resort argue which cast doubt that constructions also Petitioners citing constitutionality avoided, Pub- be should on a statute’s Department 440, 465-466 Justice, v. lic Citizen “ (1989). ‘[E]very must be resorted construction reasonable unconstitutionality,”’ Ed- from to save a statute to, order Building Corp. & Florida Coast v. ward J. DeBartolo Gulf (1988), 568, Council, S. but 485 U. Trades Construction paper impregnated reading to include blotter “mixture” 841(b), crystals only construction of a reasonable is not “grave con- about the not raise doubts” it is one that does but Fuey stitutionality provision. v. Jin (1916). Moy, of construction canon 241 U. S. way interpret in a a statute strive to that a court should useful close is an unconstitutional construction will avoid “ judiciary lan- to rewrite ‘not a license cases, but by legislature.’” Mon- guage United States v. enacted (1989). argument is santo, 600, 611 Petitioners’ 491 U. S. explain unavailing we below. for the reasons here guaranteed argue process of law that the due Petitioners determining by by Fifth Amendment is violated them the lengths with the sentences accordance of their they arbitrary. which insist is “carrier,” the LSD factor depri- preliminarily right They argue be free from that the to arbitrary liberty sentences funda- as a result of vations of may statutory provision at issue mental, and therefore that the point the views of some Members 4Petitioners containing a detectable amount or substance phrase use of the “mixture in precise. These views were manifested was less than LSD” LSD carrier me in the Senate that would have excluded troduction of bills Neither of the bills was clause. diums from the “mixture or substance” they law, even amount to sub questionable and it is whether enacted into in history guide legislative sequent an unreliable legislative — itself Underwood, (1988); Quern See Pierce 487 U. S. 566-567 tent. Mandley, n. 10 S.U. *11 only upheld compelling has a in the Government interest question. subjected in the classification But we have never process analysis, the criminal to this sort of truncated and we Every person right to do so decline now. has a fundamental liberty may punish in the sense that the Government proves guilt beyond him unless and until it his a reasonable doubt at a criminal trial in conducted accordance with the rel- guarantees. evant constitutional Bell v. Wolfish, person and n. 16 520, 535, 536, But a has who been eligible may impose, convicted for, so is and the court what- punishment by ever is authorized statute for offense, his so long penalty as that is not cruel and unusual, McMillan v. Pennsylvania, (1986); 79, 92, 477 U. S. n. 8 Meachum v. (1976), long penalty Fano, 215, 427 U. S. and so as the arbitrary not based on an distinction that would violate Due Process Clause of the Fifth Amendment. In this con- States, as we noted in v. text, 354, Jones United 463 U. S. (1983), argument equal protection 362, n. 10 an based on es- sentially duplicates argument process. an based on due Congress find that
We had a rational basis for its choice penalties penalty for LSD distribution. The scheme set Anti-Drug punish in out Abuse Act of 1986is intended to severely large-volume drug any traffickers at level. H. R. Rep. pt. assigns 99-845, No. at 17. It more severe penalties larger quantities drugs. to the distribution of By measuring quantity drugs according of the to the they weight” drugs “street the diluted form which according sold, are component, rather than to the net of the active the statute and the Guidelines in- penalty persons possess large quantities crease the who drugs, regardless purity. of their That is a rational sentenc- ing scheme.5 5Every Appeals Court of to have addressed the issue has held that this Mendes, See United States v. sentencing scheme is rational. 912 F. 2d (CA10 1990); Murphy, see United States 438-439 899 F. 2d (CA8 2d, 1990); 986-987; Bishop, United States respect respect as it is with to LSD as true with
This is
by weight,
Although
drugs.
but
is not sold
LSD
other
strictly speaking, used to
not,
medium is
and carrier
dose,
drug,
facilitate the dis-
is used to
that medium
“dilute” the
paper
drug.
makes
easier to
Blotter
tribution
transport,
of the trade
sell.
It
a tool
store, conceal, and
drug,
it was rational
and therefore
traffic in the
for those who
penalties
tool. Con-
on this chosen
to set
based
arguments
justified
seeking
gress
about
to avoid
was also
might
drugs
pure
ex-
have been
which
accurate
paper
to calibrate sen-
had it chosen
from
tracted
blotter
*12
weight.
according to that
tences
sentencing
scheme
do not claim that
Petitioners
arbitrary array
actually produced
of sen-
an
has
issue here
any
in District Court contain
motions
tences, nor did their
they
sentencing.
disparities
proof
Rather,
chal-
in
of actual
inevitably
ground
it
lenge
that will
its face on the
the Act on
hypothetical
arbitrary punishments.
can
cases
While
lead to
very
involving very heavy
imagined
and
little
carriers
be
considering
import in
a claim
those cases are of no
LSD,
persons
petitioners,
LSD car-
a standard
as
who used
such
paper
choice, the carrier of
seems to be
rier. Blotter
exactly
majority
what the
do
of cases will therefore
the vast
punish
heavily
designed
sentencing
more
was
scheme
do—
drugs.
larger
of
who
in
amounts
those
deal
selling
argue
numbers
those
different
Petitioners
culpabil-
degrees therefore,
different
and,
with
doses,
ity,
subject
sentence because
minimum
to the same
will
objection
choosing
could
carriers.6 The same
different
(CA11),
denied,
Holmes,
1175,
U.
1058
cert.
486
S.
F.
1177-1178
v.
838
2d
(CA9 1988);
Klein,
United
(1988);
1489,
F.
1501
United States
v.
860
2d
Savinovich,
(CA9
505,
1989);
v.
United States
Hoyt,
States
v.
879 F. 2d
512
(1988);
States
United
834,
(CA9),
denied,
U. S. 943
2d
cert.
488
1988).
Ramos,
(CA9
228, 231-232
v.
861 F. 2d
of carrier and
make their own choice
distributors of LSD
6Wenote that
is,
almost all dis-
potential
As
sentences.
could act to minimize their
imposed fixed sentence for dis-
a statute that
be made to
any
any
tributing any quantity
carrier.
LSD,
form,
sentencing
considering
de-
scheme—not
individual
Such a
clearly
grees
culpability
be constitutional. Con-
—would
punishments
gress
power
to define criminal
without
has
any sentencing
parte
giving
Ex
the courts
discretion.
States, 242
Determinate sentences
U. S.
United
country’s penal
inception,
codes from its
were found
this
(1978),
Grayson,
45-46
v.
438 U. S.
see United States
g.,
present.
until
e.
See,
and some have remained
(mandatory
§1111
imprisonment
life
under federal
U. C.S.
848(b)
statute);
(mandatory
first-degree-murder
C.
drug “super-kingpin”
imprisonment for violation of
stat-
life
ute);
ed.)
(1982
(flat
§2114
25-year sentence for
18 U. S. C.
carrier)
robbery
postal
(upheld against
proc-
armed
of a
due
(CA8),
challenge
Smith,
appropriate of the conduct. and not the sentence upheld We the defendant’s conviction (1984), though Ap Rodgers, of even the Court 466 U. S. peals in which had resided had the Circuit the defendant applying position. to one in his as not construed statute contrary, Appeals all of the of that have Here, Courts on except District Court, and all one United issue, decided the (DC 1990), Healy, Supp. 140 have held that States v. carrier medium must be included deter of the mining appropriate sentence. requires the of the carrier that the statute
We hold appropriate determining when medium be included trafficking in this construction LSD, and that sentence process unconstitutionally nor is neither a violation due judgment Accordingly, Appeals vague. Court
Affirmed. joins, with whom Justice Stevens, Marshall Justice dissenting. consequences majority’s of 21 construction they I so bizarre that cannot believe were are C. by ambiguous language Congress. Neither the intended legislative history supports sparse nor its the statute by today. interpretation majority Indeed, the reached necessarily produce majority’s of the statute construction will they are so anomalous that will undermine the sentences that uniformity Congress sought very to achieve when au- Sentencing Guidelines. thorized the Judges This the conclusion reached five Circuit was opinionsdissenting holding majority from the their two sitting Appeals en for the Seventh Circuit of the Court dissenting opinions, Judge case.1 In one of the banc in this Wood, Cudahy, joined Judges Bauer and and Posner Judge 1Chief Marshall, dissent, see States Cummings’ 908 F. 2d Judge *14 (CAT 1990), joined Judge judges all of these also Posner’s dissent. id., at 1331. See Cummings pointed out that there is no evidence that Con- gress weight intended the of the carrier to be considered in the sentence determination LSD cases, that there is good inequita- reason to believe was unaware of the consequences interpretation ble of the Court’s of the statute. (CA7 United States v. Marshall, 908 F. 2d 1327-1328 1990). Judge dissenting opin- As Posner noted in the other severity ion, of the sentences in LSD cases would be com- parable only to those other cases disregarded. LSD carrier were Id., at 1335. begin language
If we with the statute,2 as did those judges who dissented from the Seventh Circuit’s en banc immediately apparent phrase decision, it becomes that the majority “mixture or substance” is far from clear. As the Sentencing notes, neither the statute3 nor the Guidelines4 define the terms “mixture” or Ante, “substance.” at 461- majority initially identifying 462. The resists the LSD and carrier as either a mixture or a substance; instead, simply using language refers combination, containing as a statute, “mixture or substance a detectable drug. amount” of the See ante, 459, 460, 461. Eventu- ally, majority identify however, does the combination as evaporates, a mixture: “After the solvent the LSD is left be- paper. hind a form that can be said ‘mix’ with the The crystals paper, they are inside of the so that are com- mingled chemically it, but the LSD does not combine Turkette, (1981) (“In See United States 452 U. S. determin statute, ing scope of a we language”). look first to its statutory § applicable definitional section 21 U. S. C. does not define “mixture substance.” “[ujnless merely provide specified, The Guidelines otherwise weight of a controlled substance set forth in the [offense level] table refers any to the entire mixture or substance a detectable amount of the controlled substance.” Commis §2D1.1(e) (1991) (USSG). sion, Guidelines Manual
470 Although paper.” true ink at 462.5 it is that Ante, with the by ‘mix’ the a blotter “can be said to which absorbed is paper,” “mix- I a used blotter as a ibid., would not describe paper. I do not believe the word here, ture” ink and So relatively large comfortably the blotter describes “mixture” grains to its the that adhere surface.6 which carries LSD term “mixture” encom- I do believe that the Because not passes I, and because like here, LSD and carrier at issue the majority, the term “substance” de- do not think that any accurately, I turn to the the combination more scribes 5 a also identified the combination as majority Circuit Seventh however, 1317-1318; “mixture,” 2d, F. Circuits that have 908 other see question have either identified the combination as sub addressed the (CA8 stance, 981, 1990); v. F. 986 see, g., Bishop, 894 2d e. United States (CA4 1989); v. Daly, v. F. 2d 317 United 883 States (CA5 1989), simply have held the com- Taylor, F. 2d 127 or that substance,” statutory language of a “mixture or bination within the fell See, g., e. United distinguishing without between the two. States (CA6 Larsen, Elrod, 1990); F. 2d States 2d 1990). (CA10 point language ambiguous 6The the “mixture or remains substance” Sentencing clarify desire to highlighted Commission’s own Notice, issued March meaning Sentencing the terms. A Commission on 3, 1989, public on whether the Commission should exclude invited comment sentencing purposes in cases. A of the carrier for LSD section Manual, “Questions Frequently in the entitled Most Asked Guidelines Guidelines,” question contains about the “mixture About the continuing language, or substance” which reflects the Commission’s uncer paper tainty weighed: should be as to whether the blotter cubes, sugar or respect paper, “With to blotter other mediums on which absorbed, may the Commission has LSD other controlled substances definitively part the carrier medium is considered of a stated whether application guideline purposes. In order drug ‘mixture or substance’ statute, consistency Application guidelines to ensure between § the term ‘mixture or the same Note 2D1.1 states that substance’ has Thus, C. meaning guideline purposes as in U. S. 841. the court statute, whether, under this LSD carrier medium would must determine date, part of LSD mixture or substance. To all circuit be considered an appear answering question have the issue to be courts that addressed USSG, supra, at affirmatively." 599. any legislative history provides guidance as to con- see gressional purpose. intent or As the Seventh ob- Circuit legislative history only sparse, served, the and the refer- preceding passage ence to the debates *16 amendments to 841 that was reference addresses neither quantities weights drugs. nor 2d, 1327; of 908 F. at see also (1986)(statement Harkin). Cong. 132 Rec. 26761 of Sen. Perhaps telling subsequent legisla- more in this the case is history.7 Joseph In tive to Biden, letter Senator R. Jr., April the 26, 1989, dated the Chairman of Com- ambigu- Wilkens, Jr., W. mission, William commented on the ity of the statute:
“ respect LSD, to unclear ‘With is whether packaging intended the carrier to be considered as a ma- commonly along or, since terial, it is consumed with the drug, ingredient illicit as a dilutant in the mix- suggests Congress may . . . ture. The Commission wish to further carrier in consider the LSD issue order clarify legislative weight intent whether as to the of in the carrier should should not or be considered deter- mining quantity punishment pur- LSD mixture poses.’” 2d, at 1327-1328.
Presumably response, Senator offered Biden a technical purpose inequity amendment, the of which towas correct an apparent that had from several recent become court deci- According sions.8 “The to Senator Biden: amendment rem- inequity by removing weight edies this of the carrier weight from the calculation or mixture sub- history subsequent legislative generally Of course is not relevant and always interpreting legislation. be used with enacted must care Com Finkelstein, id., 617, 628-629, (1990), Sullivan pare n. 8 (Scalia, J., can, however, concurring part). at It provide 631-632 evi simply effect dence that an of a statute was overlooked. (ND 1989). g., Bishop, United See, e. States Supp. 704 P. Iowa (1989).9 Although Cong. Rec. 23518 Senator stance.” adopted part of was as Amendment Biden’s amendment passed 1711, the bill never the House of No. 976 to S. Kennedy clarify Representatives. also tried Senator §841. proposed following language He U. S. C. amendment: OR OF ‘MIXTURE
“CLARIFICATION SUBSTANCE.’ 841(b)(1) Code, States of title
“Section following by inserting new subsection amended end thereof: “‘(E) determining the of a “mixture or sub- In section, the shall include the this court stance” under upon which the controlled sub- carrier transported.’” placed, by which it is stance *17 (1990). Cong. 12454 Rec. approached
Although subsequent legislation must be such clarify circumspection it can what the neither because speak contemplated enacting nor to whether had passed, amendments, the at the will ever be the clarifications following example highlight inequities to the the Senator Biden offered determining were included the if the carrier that resulted or of LSD: of the “mixture substance” example. A apparent following in the inequity in is “The these decisions sugar mg. cube on weighs approximately .05 single of LSD dose transporta- dropped purposes ingestion for may be which the dose 841(b) tion, however, grams. Under U. S. C. weighs approximately gram of or than one a ‘mixture substance’ con- person distributing more a years by and a maxi- punishable a minimum sentence of taining LSD is gram less than years. person distributing A a of 40 mum sentence LSD, years. Thus a however, subject only a maximum of 20 to sentence 1,000 subject no liquid LSD in form is to [sic] doses of person distributing a person single dose on a penalty, person handing another while a minimum mandatory year penalty.” Cong. Rec. subject five sugar cube is language very is far of the statute that the least, indicate plain. or from clear ambiguity phrase light “mixture or sub- of the
In history guide legislative us, to it is and the lack stance” necessary congressional purpose the the behind to examine majority’s reading of and to determine whether statute Congress clearly could not that leads to results the statute opinion, figures ante, see in the Court’s have intended. The majority’s con- to show that at n. are sufficient contrary are anomalous sentences that will lead to struction purposes Sentencing Guidelines, central to one “Congress sentencing. disparity in to eliminate which was by narrowing uniformity sentencing sought reasonable imposed disparity for similar criminal of- in sentences wide United States Sen- similar offenders.” fenses committed (1991).10 §1.2 tencing As Commission, Guidelines Manual widely divergent majority’s sentences clear, chart makes may imposed amounts of a con- the sale of identical simply of the nature of car- because trolled substance sugar cubes, the If 100 were sold on rier.11 doses range months, from 188-235 whereas sentence would pure liquid dosage the sentence form, sold its same were range only 10-16 months. See n. 2. ante, from would justified by among “Sentencing differences of disparities are public. A to offenders and sen fenses offenders are unfair both similarly high compared to situated unjustifiably sentences tence that is offender; unjustifiably clearly that is unfair sentence offenders *18 98-225, pp. Rep. No. 45-46 plainly public.” unfair to the S. just low is as system sentencing guidelines that is intended to treat all “The a bill creates categories consistently.” by all of offenders offenses committed classes of Id., at 51. is unwarranted goal sentencing “A reform the elimination of primary omitted). (footnote Id., disparity.”
sentencing (1981) (same). 97-307, pp. Rep. S. No. See (DC 1990); Supp. 11See, Healy, g., United States e. 2d, F. at 316-318. Daly, absurdity inequity emphasized is in and of this result Judge dissent: Posner’s person paper is a
“A who sells LSD on blotter than who criminal one sells same number worse subject pun- gelatin he cubes, on but is to a heavier doses person sugar A who sells five doses LSD on ishment. person is a worse than a manufacturer LSD cubes not pure caught form, in but the 19,999 is doses who ten-year subject mandatory to minimum no- is a former subject parole latter not even sentence while the five-year Chapman, minimum. If re- defendant who selling years for a of LSD ceived five thousand doses on pure paper, in had the same number of doses blotter sold form, his fourteen Guidelines sentence would have been selling And defendant Marshall’s sentence for months. years would have four rather 12,000 almost doses been twenty. The v. Rose, defendant in United than States (7th 1989), bought F. must an 2d Cir. have unusually heavy paper, only for he blotter sold yet paper grams weighed doses, his blotter 7.3 — more although Chapman Chapman’s, more than sold than many weight Depending as on twice doses. (zero pure when in carrier medium form), the stuff is sold excluding orange juice case, the Guide Dean) (the selling range lines 198doses amount (the Rose) from 472 doses amount stretches ten selling months; months to 365 thousand doses (Chapman), selling months; from fifteen to 365 and for (Marshall), 11,751 from life. In doses 33 months to computations, by way, none of these does slight itself make a difference—so is its except relative that of of course carrier — pure Congress might when it is sold form. as well weigh carrier, have said: there carrier for- get the LSD. *19 quilt pattern
“This is a the whereof no one has been legislative history silent, to able discern. The is and Department explain even since the Justice cannot why punishment defending, it scheme that is plausible Congress simply most inference is did not how 2d, realize LSD is sold.” F. at 1333.12 Sentencing disparities “crazy,” that have been described as “loony,” ibid., id., and well could be avoided the majority upon stretching did insist “mix- definition of along ture” include the carrier to with the LSD. It does not calculating weight make sense to include carrier in a drugs because unlike LSD, LSD such as mari- cocaine or juana, by dosage by weight. Thus, sold is rather than glass juice orange whether dose of is one LSD added to a pitcher orange juice, only or to a it is still one dose that has orange juice been But if added. is to be person single calculation, added to the then the who sells the pitcher glass dose rather a of LSD than in will receive substantially higher sentence. If the of the carrier is only huge in the included parities calculation not does lead to dis- among offenders, in sentences but also it leads comparison His between treatment of LSD and other more harmful drugs illuminating: is also irrationality magnified compare peo “That when we sentences Marshall,
ple drugs prohibited by who sell other C. 841. re 12,000 member, twenty years. than sold fewer doses and was sentenced lot, comparable Twelve thousand doses like a receive a sounds but to sen selling tence kilograms, heroin Marshall would have had to sell ten Platt, yield which would between and two million doses. one Heroin Ad 1986); (2d Research, Theory, diction: and Treatment 50 ed. cf. Diamor 1988). (Scott phine comparable ed. To receive a selling- sentence for fifty sell kilograms, yield any cocaine he would have had to which would 325,000 Washton, where million from five doses. Cocaine Addiction: (1989); Treatment, Recovery Relapse Prevention 18 Cocaine Use (Ivozel Adams, Epidemiologic Perspectives America: Clinical & 61, 1985)). eds., Drug Pamphlet Institute on No. National Abuse While corresponding weight kilogram lower for crack —half a still — this 2d, 50,000 translates into doses.” 908 F. at 1334. *20 compared disparities are to sen- to when LSD sentences drugs. supra; 908 F. at 1335. 12, 2d, tences for See n. other nothing jurisprudence compels that to in- There is in our us terpret ambiguous an an statute to reach such absurd result. specifically past, so in fact, In we declined to do have ambiguous, ground when was on the even the statute not Congress have an In that intended such outcome.13 could wisely construing us to statute, Learned Hand counseled a statute, but make a look first words of the “not to to the dictionary; fortress out but to remember that statutes of always purpose object accomplish, to whose have some discovery guide sympathetic imaginative is the surest to and meaning.” F. Markham, v. 148 their Cabell 2d 739 (1945). (CA2), past, 404 In the have rec- 326 U. S. we aff’d, ognized “frequently general meaning are that words of used ques- enough an in broad to include act in statute, a words yet and . . the absurd results which tion, a consideration of. meaning giving words, it followfrom such broad makes legislator in- that the intended to unreasonable to believe particular Holy Trinity act.” v. clude Church United guided States, These our S. words U. (1990) 13See, (Con States, g., e. v. 498 U. S. Gozlon-Peretz supervised apply must to gress intended release to those who commit have drug during period Anti-Drug ted the interim after the Abuse Act offenses was but before the Reform Act of 1984became enacted latter, term, yet even be though effective which defined had not (“If States, (1988) effective); v. United S. come 487 U. Sheridan duty prevent foreseeably dangerous to the Government has a individual unattended, wandering from it would be odd assume that Con about duty liability gress give intended a breach of that rise to when the dan gerous merely negligent human instrument was but not when he or she malicious"): Co., Laundry was also Green Bock Machine 490 U. S. see (1989) (“The plain preju language weighing Rule's commands in a civil tidal well as in a criminal trial. But that dice to defendant as this”); id., reading compel an in a like at 527 literal would odd result case (Scalia. J., (“We concurring judgment) are confronted here with a stat which, absurd, literally, produces perhaps interpreted an uncon ute result"). stitutional. De- Public Citizen at issue construction .statute (1989), also when we partment 440, Justice, 491 U. S. guidance “[Bookingbeyond text for naked noted apparently proper .decrees is dif- perfectly when the result with Con- it seems inconsistent or where to fathom ficult gress’ Id,., at 455. . . . intention punish
Undoubtedly, Congress traffick- intended to punish severely, particular, intended to ers severely drugs large quantities than more sell those who express any quantities.14 But it did not sell small those who *21 differently from those those who sell LSD to treat intention majority’s drugs.15 dangerous construc- sell other who goals embody legitimate of these fails to the statute tion of severely punishing those who Congress. more of Instead punish se- large quantities would more LSD, the Court sell weighty quantities car- verely LSDof who sell small those ways comparable sentencing those instead of riers, and types drugs, would sentence the Court sell different who pro- longer than those who sell terms LSD to those who sell dangerous equally equivalent quantities portionately other respect Congress’ today drugs.16 little shows The Court very to undermine it construes a statute when handiwork goals sought to achieve. respectfully dissent. I govern that the Federal strongly believes Committee [House] “The traffickers, major the manufac ought to be on intense focus ment’s most creating responsible for who are organizations, or the heads
turers 99-845, Rep. H. R. No. drugs." very large quantities delivering pp. 11-12 maximum sentences pattern of is a consistent Code] [of “The result maximum almost random of the current offenses instead equally serious criminal creation of Federal piecemeal approach to caused sentences omitted). (footnote (1981) 97-307, p. Rep. past.” No. in the S. laws will assure policy statements sentencing guidelines and use of “[T]he Ibid. sentences." compared to all other fair as that each sentence is