Sewell v. United States
507 U.S. 953
SCOTUS
1993
Check Treatment

Dissenting Opinion

Justice White, with whom Justice Blackmun joins,

dissenting.

These petitions raise yet again the question whether waste byproducts that are not ingestible or marketable may be included in calculating the weight of a “mixture or substance containing a detectable amount of . . . methamphetamine” for purposes of §2D1.1 of the United States Sentencing Commission, Guidelines Manual (Nov. 1991). The Circuits are deeply split on this issue. As I noted in Walker v. United States, 506 U. S. 967, 968 (1992), the Courts of Appeals for the Second, Third, and Ninth Circuits have joined the Sixth and Eleventh Circuits in adopting an approach consistent with that urged by petitioners. By contrast, the Court of Appeals for the Fifth Circuit, joined by the First and Tenth Circuits, has adopted a contrary approach. Ibid. In the decision below, the Court of Appeals for the Fifth Circuit adhered to this position, reaffirming its disagreement with the holding of the Sixth Circuit in United States v. Jennings, 945 F. 2d 129 (CA6 1991), and recognizing inconsistency with approaches adopted by the Second and Eleventh Circuits. United States v. Sherrod, 964 F. 2d 1501, 1509-1511, and n. 22 (CA5 1992). The conflict is enduring and the issue important. As a result of the conflict, those convicted of violating federal law are subject to widely disparate sentences, depending only on the federal circuit in which their cases are brought. The issue is a recurring one. Respondent concedes that the Circuits are in conflict, but notes that it did not oppose certiorari in United States v. Mahecha-Onofre, 936 F. 2d 623 (CAI), and this Court nonetheless denied review there, 502 U. S. 1009 (1991), and since has denied review of the issue four more times. Respondent is correct. See Cooper v. United States, 506 U. S. 1041 (1992) (White and Blackmun, JJ., dissenting from denial of certiorari); Walker v. United States, supra (White and Blackmun, JJ., dissenting from denial of certiorari); Fowner *954v. United States, 504 U. S. 933 (1992) (White, J., dissenting from denial of certiorari); Beltran-Felix v. United States, 502 U. S. 1065 (1992) (White, J., dissenting from denial of certiorari). This marks the sixth time this issue has come before the Court in two Terms. The Court should resolve this persistent conflict.





Lead Opinion

C. A. 5th Cir. Certiorari denied. Reported below: 964 F. 2d 1501.