United States v. Gregory Alan Kinder

appeal. That on by the Cunans whose ta —raised claimant, partnership third-party only granting the defendants, no us with basis leaves criminal included partners 93- Appeal No. seek for- relief that the potential Cunans challenge the permitted was 2278, i.e., properties. Maine return of the assets feitability partnership without albeit provision, forfeiture RICO’s the indict- allegations of factual

disputing TV. Wu, v. States United ment. See also reasons, we vacate foregoing For the (E.D.Va.1993) (speculating 491, 494 F.Supp. of the Massachusetts 1994 order March defendant spouse of third-party proper- dismissing Maine District Court restraining intervene might be entitled indictment, and 37 of the from Count ties to contest in order proceeding order proceed- to that court remand the case rate, order). At of the breadth opinion. with this ings consistent well on argument falls judicata res Cunans’ line. side the forbidden arguments holding is limited

Our Specifically, the Cu- by the Cunans.

made consider, we do argue, do not nans may some Process Clause the Due

whether given parties interested require that

times restraining or challenge a opportunity

an if neces der, of the indictment the merits on America, Appellee, forfeiture. STATES entry of an order UNITED sary, before the Harvey, 814 F.2d v. States Cf . (§ 853(e)(1)(A) (4th vio 905, 929 KINDER, Gregory it autho Defendant- to the extent Alan process

lates due restraining Appellant. post-indictment parte, rizes ex post-re opportunity for without orders 94-1333. Docket No. trial criminal than the hearing other straint Crozier, 111 F.2d itself); Appeals, Court United States 853(e)(1)(A) Cir.1985) (§ 1376, 1382-84 Circuit. Second guaranteeing by not process due violates Argued Jan. op defendants criminal parties or third re post-indictment challenge a portunity Aug. Decided has been after forfeiture straining order until permitted ordered). Here, court district restraining participate

the Cunans fact, granted the proceedings;

order provided process than more Cunans

the statute.

III. appeals in the Cunans’ holding moots

Our (from entry of a Judge Young’s No. 94-2036 (from order) No. 93-2278

restraining to disen- denial motion

Judge Carter’s assets). the Portland release cumber or Judge Carter not matter

does to disencum- motion granted the have

should subsequently en- Young

ber, Judge Massachu- restraining order

tered a cannot order prosecution,

setts judica- ground sole

challenged —res grams.

of 21 Therefore, his sentencing range was 97 to However, 121 months.1 subject Kinder was a mandatory minimum years sentence of ten for possessing with intent to grams distribute ten or more aof mixture containing or substance LSD. See 841(b)(l)(A)(v). 21 U.S.C. Because a sen- tence cannot be lower than a statutorily re- quired mandatory minimum of impris- term onment, no matter what the Guidelines range, Kinder received a sentence of 120 imprisonment. months 1, 1993, On November Marybeth McCaffrey, Sessions Du- Keiner were Guidelines amended to alter the method Barnes, P.C., (Bon- &mont Middlebury, VT determining weight relevant of LSD. Barnes, nie Sessions Keiner Dumont & 2Dl.l(c) Section provides: now Barnes, P.C., brief), on the for defendant- In the case of on a carrier medium appellant. (e.g., a sheet of paper), blotter do not use Darrow, B. William Atty., Asst. U.S. Bur- weight of the medium. LSD/carrier (Charles lington, Tetzlaff, VT R. Atty. Instead, treat each dose of LSD on the VT, for the D. of Chief, David Kirby, V. carrier medium equal mg to 0.4 of LSD Div., brief), Crim. on the appellee. purposes Drug Quantity Table. Before: GRAAFEILAND, VAN

WINTER, LEVAL, Judges. Circuit 2Dl.l(c). U.S.S.G. result, As a the Guide- lines provide now for a fixed of .4 WINTER, Judge: Circuit dose, per representing the total appeal This involves of wheth- weight of both the drug, assigned which is er an amendment to the United States Sen- presumptive weight of .05 milligram, and the tencing Guidelines altering the method for medium, which assigned pre- determining the relevant weight of LSD for sumptive weight of milligram. .35 purposes Guidelines also alters the method 2D1.1, U.S.S.G. (backg’d.). Un- for determining a mandatory whether mini- 2Dl.l(c), der may Section which applied applies mum sentence under 21 retroactively, see 1B1.10, U.S.S.G. p.s., 841(b). We hold that it does not. Kinder’s 2235 doses of LSD would be treated Gregory pleaded Kinder guilty to distrib- (2235 as weighing milligrams x .4 milli- uting May 1993, LSD. In Kinder was sen- gram), or approximately gram, rather tenced to 120 imprisonment months of than the actual grams. of 21 Kinder possessing with intent to distribute 2235 tab- argues that the amendment to the Guidelines lets of LSD. He appeals now from the dis- also alters the method is to trict court’s denial his modify motion to calculated for of determining that sentence. mandatory minimum sentence applies. At the time sentenced, consequence, Kinder As a argues, he provided Guidelines possessed that the LSD he sen- is now calcu- tencing range depended upon lated at the total less than grams, and he is not weight of the LSD and its subject carrier medium. ten-year mandatory minimum Kinder’s 2235 tablets of weighed a total imprisonment. Rather, his sen- 1. The 97 to 121 range imposed months under the LSD, least grams 10 but less than adjusted Guidelines in use time of re- downward three acceptance levels for respon- flected a base offense level of 32 under Section sibility 3El.l(b), under Section in Criminal His- (c)(6), 2D1.1 applicable to an involving offense tory Category II. that the amendment range We conclude the Guidelines within should be tence method effect on the had no disagree. We 41-51 months. apply purpose of weight for the determining 841(b)(l)(A)(v) provides: Section sentence. ing the involving 10 ... a violation case of the the revised Commentary accompanying the or substance mixture or more grams ex the guideline, lysergic of amount containing detectable a does amendment that the pressly stated (LSD) person ... such diethylamide acid drug quantity for of determination affect the imprison- of a term sentenced shall mandatory minimum sen the purposes of than be less may not ment Commentary, which is The statute. tence years.... must margin,2 part in the in pertinent out set 1998 amendment the Before November violates unless it as “authoritative be treated held had Guidelines, Supreme Court the the statute, or is federal or a Constitution the mandatory the determining that, read plainly a erroneous with or inconsistent any weight of applied, the minimum v. United guideline.” Stinson ing of that containing a detectable or mixture substance — States, U.S.-,-, 113 S.Ct. is, total actual the of LSD —that amount (1993). Commen 1915, 123 L.Ed.2d medium —was and the carrier weight of LSD method Guidelines tary that the new states Chapman v. used. weight the quantities “does not determining LSD for 111 S.Ct. or sub of ‘mixture applicability the override conclud- The Court 114 L.Ed.2d any man applying of purpose for the stance’ ... the clearly intended “Congress ed (see Chapman; datory sentence. weight” to be included medium carrier 561.1(b).” § 2D1.1 U.S.S.G. case, the where, present the (backg’d). containing or substance is a “mixture carrier Commen- to construe the urges us Kinder drug.” Id. at amount a detectable fixed new that the tary to mean construed thus The Court S.Ct. incorporates the standard weight-per-dose long as it 841(b) “[s]o to mean that Section Chapman requiring inclusion of LSD], holding of [of amount a contains detectable medium, the carrier weight of weighed is to be or substance mixture entire the combined calculates say, the amendment Id. calculating the sentence.” when weight of the of the LSD weight at 1924. (A) other most levels for ognizes that offense Commentary portion of the pertinent 2. The upon the are based substances controlled states: containing the controlled weight of the mixture weights of LSD carrier media Because (B) regard purity, and without substance weight widely typically far exceed vary States, 500 U.S. Chapman United decision 453, itself, Commis- substance controlled (1991) 114 L.Ed.2d basing levels offense has sion determined or substance” “mixture (holding that the term carrier weight LSD on the entire the carrier includes in 21 U.S.C. disparity produce unwarranted medium would absorbed). At the which LSD medium quantity of involving same among offenses time, is less per dose weight selected same (but weights), as carrier LSD different actual equate the per that would weight dose than the those for disproportionate to well as sentences medium on carrier level for LSD offense substances, other, dangerous PCP, controlled more of doses the same number that for involving Consequently, in cases comparative as PCP. such assess- substance controlled medium, Com- in a carrier likely contained violent LSD to induce is more ments indicate per weight dose of established is LSD.... ancillary mission has crime than acts and determining the purposes upon the Com- milligram Thus, decided approach 0.4 for LSD level. offense levels base offense will harmonize mission Drug sub- weight LSD exceeds other dosage controlled with those offenses dosage of varied standard undue influence avoid an Administration's Enforcement stances (i.e., level. quanti- applicable offense weight on the of 0.05 carrier unit for LSD Nonetheless, dose) assign not override approach does per in order ty of actual "mixture substance” applicability Because medium. weight to the carrier some mini- applying purpose of oral- and consumed typically is marketed 5Gl.l(b)). (see Chapman; § medium, some mum sentence the inclusion ly aon carrier comment, (backg’d.). § 2D1.1 U.S.S.G. rec- carrier medium to the attributable medium, Chapman. However, as did the result of independent judicial an inter- assigns amendment pretation medium a term, rather fixed milligrams, Chap- while deference to the reasonable interpretation man that the held gov- actual was to adopted by agency.” Id. at 154. Palacio ern. plain meaning Commentary thus precludes the Commission altering from Chapman’s thus is that holding as to use of rule. the actual of the medium continues to acknowledge We quantity apply of mandatory minimum drug present actual in each dose is so If Commentary sentences. meant that small, the different calculation methods di- approach revised fully incorporated the rected Guidelines holding Chapman, then it would not have mandatory minimum sentence may statute used the term “does not override.” Nor lead to disparities dramatic in offenders’ sen- would it have 5Gl.l(b), cited to Section for tences identical doses of LSD. For ex- Guideline that acknowledges primacy of a ample, an involving offense 100 doses LSD statutory mandatory minimum sentence over in a carrier medium weighing a total of 10 a Guidelines sentence. grams would ten-year result in a This conclusion is further bolstered imprisonment term of for a first-time offend- fact that the Commentary only relates er. If another first-time offender carried the levels, offense a term relevant to Sen- same number of doses a carrier medium tencing Guidelines but not to mandatory min- weighing a total of gram, less one his or imum 841(b). sentences under Section expected her range imprisonment would Commentary thus describes the merits of the months, be 10 to 16 upon based a Criminal approach Commission’s “harmoniz[ing] of- History Category of I and a base offense fense for levels LSD offenses with those = (100 level x 12 40 milli- other controlled avoid[ing] substances and grams). However, disparities these are en- undue influence of varied carrier weight on tirely 841(b) a function of Section and the applicable (emphasis level” add- offense Chapman decision. Until there is either ed) just before that, acknowledging “nonethe- congressional action or a reinterpretation of less,” approach not does “override the Supreme Court, Section Chap- applicability of ‘mixture or substance’ man governs meaning of the term “mix- purpose applying any mandatory minimum ture or substance” of determin- sentence.” The use of the term “nonethe- ing quantity under 21 841(b), less” indicates that the Commission meant will be calculated for sen- that in spite of the merits of approach, its tencing under a weight system. dual Chapman prevails pertinent. where Moreover, the Sentencing Our conclusion is identical to that reached lacks authority displace by every appeals court that has considered method for determining drug quantity date, the issue to Boot, under see United States v. 841(b). Section (1st In Palacio, United States v. Cir.1994); United States v. — (2d Cir.1993), F.3d 150 denied, Hanlin, (3d cert. 48 F.3d 121 Cir.1995); United -, U.S. 114 S.Ct. Pardue, (5th L.Ed.2d 543 States v. Cir.1994) 36 F.3d 429 (1994), — a defendant challenged curiam), (per denied, definition cert. U.S.-, 841(b) cocaine base under Section on the (1995); L.Ed.2d United ground proposed that a amendment to the Andress, (6th States v. 47 F.3d 839 Guidelines defined “cocaine differently. base” (per curiam); Neal, United States v. 46 F.3d We held that the Sentencing (7th Cir.1995) (in Commission has banc), grant cert. — power no change prior judicial ed, interpre -, tation of the statutory term “cocaine base.” (1995); L.Ed.2d 826 United States v. Muel Id. at 154-55. that, We ler, further (10th held in the Cir.1994); 27 F.3d 494 United absence guidance of new Congress, from Stoneking, (8th States v. 60 F.3d 399 Cir. reinterpret not a statutory 1995) (m term banc); “when Pope, States v. our initial construction (11th solely statute is Cir.1995), F.3d 1567 except one, see asserts, and I majority op. jority Muschik, 49 F.3d power lacks the the Commission agree, Cir.1995). Indeed, the Commission alter statute. light of the contends also Kinder Commentary clear made 2D1.1, his sentence to Section

revision alter, or even purport it did Due Pro- violative unconstitutional put so address, statute.2 Pun- and Unusual Cruel and the Clause cess easily answered. claims of these Neither Clause. ishments court, but district before raised quite however, question is view, my meritless. any event courts, in inter- It is whether different. Affirmed.3 statute, may, mandatory sentence preting from guidance should, voluntarily take dissenting: Judge, LEVAL, Circuit Commission, adopt reject dissenting, amI recognize I of LSD quantities measuring formula colleagues my but only of ing the views the Guidelines. for use promulgated considered to have the circuits of most also an- affirmative support Strong reasons me considerable gives This question. Courts the however, parts question. that these to both swers persuaded, amI pause. of a interpretation course, significant errors: in may, of two result from decisions ruling of an interpretive question adopt raised an First, they misconceive if created in body, even question on the least, administrative they fail to focus (or, expert context, long (but as argument). so parallel) the defendants’ a favors different most that consistent Supreme Court’s interpretation considering resulting Second, in in- In this 500 the statute. v. United commands decision for- 1919, 114 L.Ed.2d of the stance, adoption Commission’s 453, U.S. holding and read the terms neither (1991), dictum contravene they take would mula an having interpreta- decided Court’s 841, Supreme Supreme Court § nor fact, Court, why courts consid never Chapman. As which of it tion issue fol- formula: the Commission’s adopt ered. should would of the guidance lowing the ques- that opinion asserts majority manner in a the statute interpreting avoid United to the amendment tion is “whether irra- arbitrary and appalling produces that altering the Sentencing Guidelines States morally and resulting from sentences tional weight determining the relevant method details; the Commis- irrelevant functionally alters also for Guidelines finding of by a prompted rule was sion’s weight un- determining” its method which disparities, sentencing unwarranted statute.1 Ma- mandatory minimum der mandatory statutory a eligibility for to his arguments but the merits not address 3. We do - sentence.”), U.S. granted, cert. colleague minimum -, dissenting by our made (1995); 132 L.Ed.2d Su- directed are best believe (1st Boot, 54-55 25 F.3d v. States United preme Court. argument 1994) (rejecting defendant's Cir. position majority’s favoring the circuits adoption 1. Other [the acquiescence in "congressional similarly. United posed the have tantamount be considered 488] must Amendment (11th Cir. Pope, F.3d States v. Chapman re displacement legislative changed the 1995) ("[w]hether Amendment Dimeo, 28 F.3d v. States United gime”); weight of LSD calculate method argument Cir.1994) (addressing defendant’s (1st purposes of for scheme”); take ef 488 to Amendment "by permitting Andress, F.3d States signaled its intention Congress fect ("whether change (6th ... unitary method under weight be calculated is determined [LSD] weight ...of way the Chapman”). overruling implicitly thereby a corre effected Sentencing Guidelines mandating statute change ... under sponding “Nonetheless, override approach does not Neal, sentence”); minimum for the substance' 'mixture or applicability of ("The banc) Cir.1995) (en applying purpose of an amend ... appeal is whether sole issue 5G1.1(b)).” USSG (see Chapman; applies to ... Sentencing Guidelines ment to 2D1.1, (backg’d). level offense base defendant's the calculation occur under the mandatory statute to assign weight some to the carrier medium.” same extent as under the Guidelines. Fur- Id. The “inclusion of some attribut- thermore, to do so bring sentences able to medium,” the carrier the Commen- governed by the Guidelines gov- and those tary explains, “recognizes ... the decision in erned the mandatory statutes into harmo- Chapman ... (holding that the term ‘mix- ny, while failing produce to do so will intoler- ture or substance’ in 21 841(b)(1) able inconsistencies. includes the carrier medium which LSD is absorbed).” Id. The change is made in Significance A. The Amendment 488 order “harmonize offense levels for LSD Both section U.S.C., of Title offenses with those for other controlled sub- and the Sentencing require stances [such as PCP] and avoid an undue to determine of “a mixture or varied carrier on the influence substance containing a detectable amount applicable of’ offense level.” (emphasis Id. add- 841(b)(1), LSD. ed). Under an offense involv- ing more than one or grams ten triggers a Insofar pertains as it Guidelines, mandatory minimum sentence of five or ten meaning of all this is reasonably clear. The years, 2Dl.l(c) respectively. Under (Drug Commission has found in the case of Table) Quantity of the U.S. Sentencing LSD, the use of the actual Guidelines, the weight of the mixture or sub- produces unwarranted disparity in stance will determine the defendant’s base sentencing. Recognizing, however, that un- offense level. der the Supreme Court’s decision Chap- Prior to the adoption of Amendment 488 in man the term “mixture or substance” forbids 1993, the Guidelines required that offense carrier, exclusion of the the Commission has levels Drug under the Quantity Table be assigned a weight standard to the carrier of determined weight “entire mix- (seven milligram 0.35 weight times the ture containing substance a detectable LSD) pure for each milligram .05 dose of amount 2Dl.l(c) of [LSD].” See USSG n.* LSD, for a total milligram. of .4 This in- (1992). rule, Under the new the Guidelines cludes the carrier while “avoid[ing] undue instruct, influence of varied carrier weight on the In the case of LSD on a carrier medium comment, offense level.” 2D1.1, § USSG (e.g., a sheet of blotter paper), do not use (backg’d). of the LSD/carrier medium. question, then, for courts interpreting Instead, treat each dose of LSD is whether may, should, and carrier medium equal as to 0.4 mg of LSD borrow from the wisdom expertise for purposes of Drug Quantity Table. adopting interpretive * 2Dl.l(c) (1993). USSG n. method for avoiding unwarranted disparity in The Commentary goes on explain why Guideline sentencing, in order to cure the change was made. For peculiar reasons problem same in sentencing under the man- LSD, “basing offense levels on the entire datory statute. weight of the LSD and carrier medium produce unwarranted disparity B. The irrational results produced by use among involving offenses quantity same LSD carriers full (but of actual LSD different weights).” 2D1.1, Using the actual of the carrier me- (backg’d) (emphasis added). The Commis- quantify dium to the “mixture or substance” sion has therefore “established a per produces appalling disparities in LSD sen- dose of milligram 0.4 for purposes of deter- tencing. Functionally irrelevant differences mining the base offense level. The dosage between one carrier and another generate weight of LSD selected exceeds the Drug extremely disparate sentences. This is be- Enforcement Administration’s standard dos- of properties cause peculiar to LSD and the age unit for (i.e., LSD of 0.05 way it is sold and First, consumed. drug quantity dose) of actual per LSD in order to itself is infinitesimally light in comparison to Chap is consumed. drink as the ingested An aver- as carrier. used often

substances 1923; S.Ct. at man, only milli- U.S. weighs pure LSD age dose Marshall, tiny so is of LSD dose standard gram.3 J., banc) (Posner, Cir.1990) (en sepa- transfer to store difficult it is v. Unit nom. dissenting), more sub into a much incorporated rately unless aff'd 1919, 114 Thus, dose U.S. an individual ed carrier.4 substantial form, liquid drop of a LSD, consisting L.Ed.2d capsule, or gelatin in a conventionally placed produce bi- of LSD characteristics These sugar aor paper square of blotter a small one types when of two zarre irrationalities and the evaporates liquid cube, where by refer- or substance” “mixture measures me- the carrier with crystals bond remaining one the carrier: weight of to the actual ence dium. one carrier use of resulting from commonly encoun- Second, diluents unlike involving another; the second opposed drugs, carrier of other in the trade tered offenses of sentences comparison multiply employed to not LSD are media weight of drugs. The other offenses with In the by dilution.5 of doses number anything slight that is so actual elements, cocaine, inert of heroin case will liquid form 20,000 pure doses short mannite, employed lactose and such trigger gram required one reach the a seller give the drug, so as to dilute of five mandatory minimum lowest even resulting in eventually sell, larger volume Chapman, 500 841(b)(1)(B). years under number larger distribution wider a theOn at 1923-24. Thus, individu- doses. individual weaker sugar cube will hand, single on a dose a other drug by consumers purchased al dose one excess grams 2.27 involve —well amount substantially in the vary will markets five-year sen- a requiring thus gram, not so This they contain. pure 841(b)(1)(B). single And a tence under dose, by the LSD, is sold juice will glass eight-ounce in an dose contains dose individual gross volume. times quantity 22 grams, involve 226.85 LSD, pure re- amount relatively standard 10-year require a necessary to larger than quarter-inch reposes on gardless penalty. mandatory minimum cube, inor sugar paper, square of blotter produce dras- doses will of five transfer A juice. orange glass of eight-ounce on depending tically sentences different number expand words, than rather other capsules, contained the doses a fixed from be served can of doses Com- If cubes. sugar or paper, blotter serves drug, the pure quantity mg per dose .4 weight of standard mission’s separate its and facilitate dose isolate the ease the in each purposes, all governed Chap- transfer, consumption. storage, 2be would five doses weight of aggregate at man, at U.S. (for less level at a sentence calling for mg, is LSD Furthermore, ingestion, LSD) for a months 10-16 or ofmg original carri- from transferred sometimes weights were if actual But first offender. Thus, while carrier. much heavier into er a for a follows: be as would used, the results by tiny dose of many consume capsules, gelatin done transaction cube sugar or square holding the blotter (5 mg), x 2.25 mg 11.25 weight would crystals to dis- drug mouth, allowing the 12, and the would level offense base drop the carrier saliva, some will into solve actual months. be 10-16 would liquid; other juice or glass into a blotter inch done transaction % weight of a gradually is and the crystals dissolve much); (or as times mg approximately 13.95 dosage found Sentencing Commission 3. The 44,400 (or times as grams sugar cube 2.22 mg, noted a mg and much). to .08 vary .02 weights from table from figures are derived as dose con- These a standard describes DEA that the taining at S.Ct. amend. 458 n. App.C, at Chapman, 500 U.S. mg LSD. n. 2. (ormg 44 times weighs 2.20 capsule gelatin 4. A at 1928. S.Ct. 5.Chapman, paper LSD); square of blotter a as the as much squares (5 would come to 70 x mg mg), twenty times over single a dose served in producing an offense level of 14 and a sen- glass juice. tence for a first offender of 15-21 months— I recognize that these irrationalities are of drastically different gelatin from cap- consequence no ifus result from the sugar sules. But if used, cubes were command of a statute Supreme actual (5 grams be 11.35 x Court has found to be constitutional.8 I sub- grams) 2.27 and the mandatory ten-year sen- mit, however, that neither nor the 841(b)(1)(A) tence of Section would apply. Chapman ruling, requires these absurd re- The switch capsules from sugar cubes sults, and that courts are free accept takes the sentence from months to 10 interpretive guidance from the Sentencing years.6 produce that would a more ration- moral, There is no social penological al sentencing Supreme scheme. The Court, objective to be served disparities. those course, did find in Chapman that Morally socially irrelevant choices car- inclusion of carrier medium irration- rier will determine whether the defendant al. 500 U.S. at 1927. That spends months, a few years, five years or ten is because the carrier serves a function jail. discrepancies These Judge led Rich- trade. Id. at 111 S.Ct. at 1928. ard Posner to observe that punish- “[t]o base Here, however, question is different. ment on of the carrier medium not, in Chapman, as question of whether makes about as much sense basing punish- to exclude the carrier. ment on of the defendant.” Mar- whether the Commission’s chosen method for shall, 908 F.2d at 1333. including the carrier medium in calculating The irrationality of using the full weight of Guidelines sentences should also apply in the carrier medium for LSD is further illus- determining mandatory minimum sentences. trated by comparing LSD other common If the adopted the Commission’s for- illegal drugs subject to the mandatory stat- mula to account for LSD carriers a stan- ute. Section requires ten-year weight, dardized these irrational and unwar- mandatory minimum sentence possession disparities ranted would largely disappear. of one kilogram of heroin or kilograms five cocaine. A kilogram of heroin already dilut- C. The hearing ed to street purity levels of will involve thou- doses, sands of as will kilograms five (as co- majority opinion well as major- caine.7 In no reasonable case ity could a kilo- of courts that have issue),9 considered the gram heroin, or five kilograms cocaine, interpret Chapman holding that courts constitute single dose. an amazing What must include the entire of LSD carri- contrast to grams (the ten of LSD amount er substances to determine the weight of the that triggers ten-year a mandatory sen- “mixture or substance” under 841. With- tence), which, above, as noted is achieved question, out the Chapman opinion used 6. weights Per unit are derived the from ity table set specific a application, long so as some Chapman, forth in 2, 500 U.S. at 458 n. 111 S.Ct. rational basis can be Congress's found for overall at 1924 n. 2. sentencing scheme. logic Given the of "as- signfing] penalties more severe to the distribu- Single 7. bags dose of purchased larger tion quantities heroin of id.., drugs,” on the of together street generally contain mg 20 to powder 50 with of the "seeking value of to arguments avoid (irrespective purity). of kilogram A about of the weight pure diluted accurate drugs of which powder 20,000 50,000 contains from might to have doses. been extracted paper,” from blotter 466, id. at 111 S.Ct. at the Court found that Congress's 8. Supreme The decision to base Court ruled on the that mixture, sentencing according pure involved, rather than on the weight the actual of the passed carrier was not so constitutional muster. irrational as to violate due process equal protection. or 465-66, 500 atU.S. 111 S.Ct. at however, 1927-28. ruling, That Neal, did 9.See United States v. 46 F.3d disagree not illogicalities of pointed (7th the Cir.1995); Andress, 840; at F.3d out above. point The Court's was Hanlin, rather that the States (4th v. Cir.1995); F.3d Constitution high degree tolerates a Boot, of irrational- 25 F.3d at 55. adopted Sentencing Commission After the stated, for message. that conveying words later, it year a than 488 more Amendment detect- it contains a long as “so that example, more offers the issue that apparent became mixture drug], the entire a [of amount able to exclude Refusal options. two than when calculat- weighed to be is substance or necessarily does carrier of the weight 459, 111 S.Ct. at 500 U.S. sentence.” ing the weight of the full of require inclusion at 1924.10 rule now new The Commission’s carrier. be included can carrier that shows properly however, be cannot answer, An unwar- enormous ways. To avoid different question. considering without understood functionally ir- disparities caused ranted was Court being argued issue The carrier one between differences relevant LSD, media carrier whether, case formula another, devised quantification from the be excluded should weight per carrier a uniform adopts that petitioner- The or substance.” “mixture reasonably cannot Supreme Court The dose. pecu- because that argued defendants be- approach, rejected that have be said to be LSD, should carrier characteristics liar the issue. considered it never cause example, the (like, for excluded altogether Muschik, F.3d which packages or foil envelopes glassine (Amendment presents sold). thus Court The cocaine heroin option”). “third “[petitioners stating, analysis began course, deference courts, owe The lower 841(b) require that should that argue treat new toBut Supreme Court. to the when included be carrier Supreme decided, because ifas question appropriate computing read superficial language seems Court’s at 111 S.Ct. at 500 U.S. beyond distribution.” deference. it, goes ing to answer (1st Cir. Hurley, 63 1923.11 United States responsibility 1995).12 our It abdicates thus the Court confronting The itself. Supreme Court disserves an- possible only two present appeared lower the benefit entitled Court or ex- medium carrier include swers: a new it considers before judgment courts’ argument — rejected Court it. The clude v. United Austin question. rejection that exclusion, expressing 2812, 125 L.Ed.2d -,-, statement equivalent seemingly appeals, through (1993) (remanding to court medium con from the carrier foreclosed” “thought the entire was that which But, context question, sidering 8th Amendment included. must the lower allow we assertion dictates “[p]rudence the Court’s Chapman, first question in [this] included consider to be medium as fore issue instance”). treat When Court’s nothing more mean could considered, never fact was closed, exclusion. argument rejection of required, stated illegality was awareness stated, statutory lan- "[t]he opinion also 10. speci- statutory ‘willfulness’ give effect "to indicate structure guage and de- prove [the fication, ha[s] Government sub- a ‘mixture included carrier should structuring he undertook of LSD amount’ knew fendant] containing a detectable stance at-, LSD dis- for an S.Ct. at determining the sentence Id. unlawful.” when notwith- Hurley observed 500 U.S. in statement, tributor.” First Circuit had Supreme Court standing this argument petitioner’s noted also Court 11. decided— had not therefore not considered—and dose, by rather is sold ”[b]ecause that by satisfy the disregard would also reckless whether should carrier weight the LSD weight, the proceed- therefore willfulness. requirement of determining the defen- when be included illegality did disregard of reckless that ed to rule culpa- to is irrelevant dant’s Hurley, F.3d at satisfy the statute. indeed 458, S.Ct. bility.” U.S. precise instruc- ("Ratzlaf formulate did not the address Supreme Court "reckless Should tion. question whether Hurley raised knowledge on actual might insist satis- again, it anti-structuring law would issue disregard” of part aof disregard' is nothing of willfulness. But'... requirement less. fy the willfulness.”). States,-U.S.-, S.Ct. instruction v. United standard Ratzlaf Court, (1994), Supreme 126 L.Ed.2d no argument government’s rejecting deprive the Supreme Court of prior our teetable amount” of LSD. 21 U.S.C. analysis as a testing ground for the decision § 841(b)(1). The Supreme Court ruled in it must eventually make. Chapman that this statutory pre- command The fact that the Supreme Court cludes sentencing has re assessment based solely cently granted certiorari to consider this on the pure drug without consideration of the question in the case of Neal, United States v. carrier. If the weight promul- assessment 46 F.3d 1405 Cir.1995), grant cert. gated by the Amendment were incompatible - ed, -, U.S. 115 S.Ct. 132 with command, this there would ques- no (1995), L.Ed.2d 826 suggests that the Court tion for debate. But the ap- Commission’s itself does not question consider the to have proach is not incompatible with the statute or been decided Chapman;13 it would not with Chapman. likely granted have certiorari merely to reit erate decision recently made. Because a In its Commentary to Amendment majority appeals courts of have treat pains takes point out that its ed Chapman dictum as conclusive of an formula assigns weight to carrier media. issue considered, never Supreme Court more, What is it explains that it does so in will have virtually no guidance from lower order comply with the Chapman decision courts on question impression. of first I 841. The Commentary explains that conclude that Supreme Court’s decision the Commission deliberately “selected [a dos in Chapman is simply neutral as to this age weight that] exceeds the ... standard question. Assuredly, Chapman tells us that dosage unit for (ie. LSD of 0.05 milligram may carrier not be excluded in computing the quantity of actual dose).” LSD per weight of a mixture or substance contain 2D1.1, (backg’d). This ing LSD 841. It tells us nothing, was done “in order to assign weight some however, as to whether that inclusion must (The carrier medium.” Id. achieved adding the carrier’s full multiplier is weight, approximately eight or whether times the courts adopt should weight of the drug.) standard multiplier that the Sentencing Commission ex Com plains mission promulgated has “the inclusion use of some weight under the Guidelines to avoid attributable to the unwarranted carrier medium recognizes disparities (A) resulting from the differing offense levels for most other con weights of different carriers.14 trolled substances upon are based of the mixture containing the controlled sub D. The Commission’s rule is consistent stance regard without purity, (B) 84.1(b). §with decision in Chapman v. Section requires consideration 114 L.Ed.2d 524

the “mixture or substance containing (1991) a de- (holding the term ‘mixture or 13. Unfortunately, grant puts of certiorari 100 doses of vary LSD would between 10-16 question, again, once as whether the “amend- pure months for LSD to 188-235 months if the ment change[s] [the] Guidelines doses were sugar embedded in cubes. 500 U.S. [the] manner of computing [the] at 458 n. 111 S.Ct. at 1924 n. 2. The fact that changed Commission has a rule that fur- 841(b)(1)].” [§ -, -U.S. support nished Supreme for the opinion Court's L.Ed.2d 826 Because question raises some whether Supreme Court cannot amend a ques- answer to this would adhere However, to their holding. rest I preordained. tion seems hope I Supreme little or no on that my consideration for Court will also consider the argument. place, In the first the reference to the may, should, voluntarily guid- take prior Commission's rule footnote, occurs in a ance from the Commission's new rule in inter- suggesting Supreme that the preting Court did not rest statute. heavily decision on the Commission’s use of 14. A further reason full view medium to control controlling is that the Supreme Court's Guideline decision sentences. The important far more influenced point fact that the Supreme that the Chapman Court in in Guidelines at that required time of fact inclusion did not decide that full should be full of the used; carrier Chapman medium. only decided that the carrier should not noted that for this reason Guideline sentences for be excluded.

767 (or for indeed party juice at laced 841(b)(1) includes § 21 U.S.C. in substance’ offender). single-dose is ab LSD which medium carrier mea short, because sorbed).” Id. with 488 inconsistent Amendment Nor is in Amendment of approach surement “market-orient adopt a to intent Congress’s (unlike the defen medium carrier cludes Chapman, sentencing. to approach ed” it satisfies Chapman), position dants’ 1925;16 Mus at 461, 111 S.Ct. to in § 841 of directive and the Chapman mul Commission’s The chik, 517. F.3d at containing or substance” “mixture clude of LSD of punishment bases formula tiplier Stoneking, v. held. LSD. of doses number actual on fenses J., banc) (Beam, (en LSD appropriate particularly This Mus by weight. dissenting). dose, than rather is sold nor price Neither chik, F.3d at think Commis- reason to is there Nor LSD when increase purchases of number of Con- intent contravenes formula sion’s sugar cubes opposed capsules, sold of provisions LSD passing gress Note, the Punishment Let paper. blotter of contrary, the use 841(b)(1). To the § Newton, State Fit Crime: bring mandato- would formula Commission’s Purity Problem and of conformity with into for LSD ry sentences 1267, 1279- Prosecutions, La.L.Rev. other for provided mandatory sentences based offenses (1992). To sentence application The drugs. utterly fails the carrier weight of full on 841(b) result would under punishing objective to LSD of rule Congress’s further 2,500 dos- for drugs five-year sentences of mandatory the volume according to dealers for ten-year sentences mandatory market. es, consumers reaching /., (Posner, ten- dis five- mandatory Marshall, F.2d at The 25,000 doses. of- cocaine senting). for heroin year sentences that quantities for play into come

fenses doses.15 of individual numbers similar involve Commentary does Commission’s The E. Congress of quantity gram ten measure- its application rule out not year mandato- ten triggering the selected §to ment 8M formula where play, into not come does ry sentence majority unhesitatingly with agree I form, short unmixed, liquid LSD is direct courts does Amendment that unlikely Con- most seems 200,000 doses. measuring LSD method use its unusual that, owing to gress realized mandatory determining weight for year sentence LSD, ten characteristics Indeed, the Com- § 841. sentences dose. single triggered also might does approach “this that asserts mentary inten- guess difficult Although it is or sub- ‘mixture applicability override surmise, on based I would Congress, tions any man- applying purpose stance’ Congress se- dosage volumes other (see Chapman; minimum sentence datory sentences, that mandatory trigger lected comment, 2D1.1, 5G1.1).” USSG achieved far better intentions those (backg’d). for- Commission’s application by the con- however, more takes majority, requires interpretation by an mula go me to seems position a first troversial ten-year sentence quoted last in this It finds far. too of LSD- glass single passes a who offender grams or (PCP) or 100 phencyclidine or more 7, supra. 15. See footnote containing a or substance aof mixture more (PCP) adopted a mar- Congress phencyclidine Chapman noted amount detectable quantity (West Supp.1988) on approach 841(b)(l)(B)(iv) based ket-oriented dilute, in narcotics, pure or expressly added). consumable (emphasis solely the volume brought based preference to one furthermore, amendment noted, exception to this PCP is drug. pure Id. conformity those into LSD sentences 841(b)(1)(B) pro- purity. Section disregard of (backg’d). 2D1.1, PCP. grams upon "10 either based vides “plain meaning”17 “express[ ] ride” statute, minimum since state[ment]” instructing courts not to use the it “clearly cannot,” but whether pro- statute approach of Amendment 488 in connection hibits guideline approach). §with maj. op. 759-60, which we We can only guess at what this sentence must treat as “authoritative” under Stinson signifies. It me, seems to however, that the — -, -, 113 least likely of its several possible meanings is 1913, 1915, L.Ed.2d 598 an instruction to the courts should The majority argues that the Commission continue to 841(b)(1) § sentence under would not have phrase used the “does not manner which the Commission finds in the override” it unless meant that the revised preceding paragraph to “produce unwarrant- approach was inconsistent Chapman. ed disparity.” I can find nothing in the Maj. op. at 759. “Nor would it have cited to Guidelines’ commentary or rules to support 5Gl.l(b), section the Guideline that acknowl- the conclusion that the Commission’s inten- edges primacy of the statutory mandato- tions would be undermined if courts took ry minimum sentence over a guidance Guidelines sen- from Amendment 488 and applied it tence.” Id. I see no logic in argu- these to the mandatory statute well. ments. What the Commission has expressly stated sentence obscure. What the Com- in the same Commentary is that “basing mission by meant it is difficult to fathom. offense levels on the entire Whatever was mean, intended to it is most LSD and carrier medium produce un- certainly not an “express statement” with a warranted disparity.” 2Dl.l(c), USSG “plain meaning.” comment, The dissent from the Sev- (backg’d). It has expressly stated enth opinion Circuit’s in Neal reads the sen- approach its will “avoid an undue influ- tence not as a all, direction at merely but ence of varied applica- factual observation that the new measure- ble offense level.” Id. It has taken pains to system ment does not conflict with the obli- suggest that its measurement method “rec- gation to include mixture or substance. ognizes ... the decision in Chapman ... Neal, 46 F.3d at 1416 (Ripple,./., dissenting). holding that the term ‘mixture or substance’ interpretation This bolstered the text in 21 includes the carrier preceding the Commission’s which medium.” Id. earthly What sense would it pains takes point out the consistency of then make for the Commission to command the new guidance with the obligation under that courts not use enlightened method 841 to include the carrier. when formulating statutory sentences? A second possibility is that the sentence It is clear that the same unwarranted dis- signifies merely recognition parities the Sen- and “undue influence of varied carri- tencing Commission of the limits of its au- weight” er will occur under the mandatory thority and undertaking. says It nothing statute, just as under the Guidelines. It is more than that Amendment 488 does not clear that the Commission believes its ap- purport to instruct courts how to interpret proach to measuring LSD weight is more the mandatory statute, leaving this reasonable. It would thus beyond bizarre interpretive task to the courts. The refer- comprehension for the Commission to direct ence 5G1.1, which the majority courts not to employ this enlightened ap- sees as clincher, may be nothing proach more when interpreting the statute. than a recognition that, however the courts seems most unlikely that the Commission interpret the mandatory intended this sentence to instruct courts command will of prevail course guideline over that they should continue to use a measure- prescriptions. See Stoneking, 60 F.3d at 408 system ment the Commission finds so (Beam, J., (issue dissenting) is not whether problematic. As I read the amended text of Commission intended its approach to “over- Guideline 2D1.1 in its totality, it tells us writes, majority plain "[t]he meaning of apply continues to of mandatory the Commentary ... Chapman's is that holding minimum sentences.” Maj. op. at 760. as to use of the actual of the medium /.) Cir.1995) (Posner, (nonbinding policy weight of the full the use of Sentencing are in statements us it tells disparities; unwarranted produces great weight because to “entitled nonetheless con- or substance mixture how to measure expert is the Sentencing Commission the base appropriate find the taining to sentencing”); body federal Guidelines; it and the offense level (6th Sparks, F.3d instructing courts how from simply refrains (courts advisory policy state- must consider the “mixture or substance” compute to of Guide- Chapter ments by required mandatory mínimums purpose of lines). Sentencing Commis- role of the The 841(b)(1).18 § sion, invites such as mandated to the limited Its is deference. task Commission; the junction

F. The of It is Guidelines. creation of court; appropriate- and the duty of all, “establishing] sen- with of charged, first ness of deference Federal practices for the tencing policies and to told courts neither has The Commission system.” 28 U.S.C. justice criminal 841(b), § nor instructed apply its formula 991(b)(1). practices it is policies and The nonetheless so. not to do them “(A) must assure promulgate charged to solu- may wise borrow courts arises whether sentencing as set meeting purposes relevant adminis- promulgated tions 3553(a)(2) below] [discussed in section forth closely determining a relat- agency trative ..., (B) certainty ...; and fairness provide issue. ed sentencing disparities unwarranted avoid[] (C) reflect, practicable, to the extent doing ... to courts and legal is no obstacle There knowledge of human behav- that courts advancement suggested been It never so. has pro- justice the criminal it relates to expertise when- ior as ignore administrative must 991(b)(1).19 Each See 28 U.S.C. cess.” required to defer it. they are ever statutory Hill, aspects of the Commission’s these F.3d United States interpreting statutes that the function history 488 in- nizes belongs legislative of Amendment event, Finally, any is this to courts. slightly more favorable cludes a statement history not a reliable legislative and commentary mere argument. historical majority’s amendment, meaning of the duplicates source for largely accompanying the Amendment with especially it is in tension where incorporated the amended into language at 1569 sentence, Pope, 58 itself. amendment Commentary. how- Its last Guidelines ever, at-, Stinson, "Nonetheless, (citing -U.S. slightly It different. states (where guideline in- commentary it and approach does not this override definition inconsistent, Sentencing Re- terprets applying purposes of or substance for mixture compliance with the Act commands form sentence.” added). guideline)). (emphasis App.C, amend. supports the Although better this sentence 991(b)(1) provides that text of The full adopted version majority's argument shall: Commentary, I would new Guidelines practices sentencing policies (1) establish by the Commis- as a read it direction still not system justice that— criminal the Federal should continue sion purposes of (A) meeting assure including car- the full construe 3553(a)(2) of First, section set forth in weight. for several reasons. This is rier Code; 18, United States above, would be title an intention as noted such (B) certainty in meet- and fairness provide immediately preceding incompatible with the avoiding sentencing, un- ing for- Commission's explanation use among defen- sentencing disparities disparity con- warranted mula avoids unwarranted have been Second, records who with similar if dants the statute. forms to while intended, conduct guilty criminal of similar it found maintaining what the Commission that was flexibility permit indi- incorporated sufficient version be odd by miti- when warranted sentences vidualized to communicate into Guidelines failed taken into aggravating factors not Third, gating or language is alto- message. same general sen- in the establishment likely mean- account compatible a far more gether tencing practices; and commentary ing. Stating that a Commission reflect, ad- (C) practicable, to the extent statutory definition "does not override” a knowledge behavior of human recognition vancement stating the obvious—a merely process.... justice the criminal relates to power. can- the Commission’s limits 991(b)(1). definition, recog- 28 U.S.C. not override mission undoubtedly directly Martinez, relates In United States v. 987 F.2d 920 problem (2d of assessing LSD sentences. Cir.1993), government contended that the defendant responsible should be held un Moreover, pursuit in objec- of these 841(b)(1) der quantities for all that were tives the Commission developed has enor- included in conspiracy of which he was a expertise sentencing mous in matters. The part, applying without “reasonably fore Supreme Court previously recognized has seeable” limitations of the Guideline. Id. at respect 924. This disagreed. that, court We held “[developing proportionate penalties where the Guideline was not inconsistent hundreds of different pre- crimes ... is statute, would, with the cisely intricate, the sort of interest of labor-intensive fashioning task for which rational structure of delegation expert body sentencing to an especially is laws and appropriate.” harmonizing the Mistretta v. Guidelines with Unit- States, 361, 379, mandatory statute, ed 488 647, U.S. 109 S.Ct. adopt 658, (1989). 102 L.Ed.2d 714 See also culpability Unit- Guidelines standard of for the R.L.C., 841(b)(1) 291, 298, §§ ed States v. 503 U.S. statutory and 846 mínimums. 1329, 1334, (1992) 117 L.Ed.2d 559 Id. at explained 925-26. We adopt that to (courts imposing government’s sentences under Juvenile arguments for sentencing Delinquency Act 841(b)(1) must also punish- §§ refer to under and 846 “would be devas ments authorized Guide- tating to the approach” Guidelines because of lines, which “limit legitimacy of [courts’] disparity it would create between sen [sentencing] exercise of power”). tences covered the Guidelines and those covered statutory mínimums. Id. at quite courts, It is common for in the ab- 926. Other circuits have reached the same directly sence of applicable administrative result. See United States Young, 997 F.2d rulings, to policy look to agency guidance (7th Cir.1993); United States v. in statutory interpretation. Indeed, we have Irvin, Cir.1993), F.3d cert. de examples closely parallel this case. —nied, -, 114 S.Ct. lB1.3(a)(l)(B) Section of the Sentencing (1994). L.Ed.2d 401 courts, Guidelines directs “jointly cases of closely Martinez is activity,” analogous undertaken criminal to our situa- to consider as tion.20 In each relevant conduct case the reasonably “all Commission has foreseeable promulgated guidance acts” of the co-conspirators commentary defendant’s di- only rected determine the to the defendant’s base Guidelines and not to level. offense lB1.3(a)(l)(B). interpretation statutory ease mínimums drug conspiracy, prescribed by Nonetheless, this will make the defendant the ra- responsible, harmony on the tional vertical base-offense-level overall axis, quantities drugs contemplated scheme consistency favors interpretation. co-conspirators, his McFadden, if their conspiring as States v. 13 F.3d (1st quantities these “reasonably C.J., (Breyer, foresee- dissenting) (giv- able” to the importance defendant. This en guidelines system Guideline sec- to Con- conveys tion suggestion no gress, whatsoever that it try courts should to reconcile sentenc- applies also ing guidelines calculation of quanti- and mandatory minimum stat- ties mandatory greatest minimum sen- utes to degree possible “in light of tences under 21 §§ and 846. their purposes sense”); Irvin, and common recognize I adoption theless, that our of the standards interpreting Relevant Conduct Guideline in Martinez our court and expressly others have relied on the was somewhat closer to traditional in- guideline Commission's expertise. rule and its terpretation because that standard was consis- 925-26; Irvin, See id. at ("Although at 77 judicial tent with the doctrine of Pinkerton v. decision, controlling of our support we find 640, 647-48, 328 U.S. 66 S.Ct. interpretation 841(b) §§ for our and 846 in the 1180, 1184, (1946) (a 90 L.Ed. 1489 conspirator sentencing guidelines.”); Jones, United States v. responsible for the substantive crimes of an- (8th Cir.) (same), 965 F.2d cert. de other committed in conspiracy furtherance of the —nied, U.S.-, 121 L.Ed.2d only to the extent acts reasonably those were foreseeable). Martinez, 987 F.2d at 926. None- (1992) judicial (noting over 75 L.J. and sen- (mandatory minimum

F.3d at 78 1982).22 Merger since recon- “should be citations guidelines schemes tencing prac- legitimate altogether appropriate for courts to the extent ciled tical”).21 helpful administrative draw on a wise and context and for use one solution devised agency interpre- frequently borrow Courts arising a differ- apply to the same issue well, where Chev- contexts tations other ent context. an exam- required. As is not ron deference long analyzed anti- have ple, federal courts in majority argues, citing our decision according to the measurements claims trust (2d Palacio, 4 150 v. F.3d States Merger Department’s in the Justice outlined — denied, -, Cir.1993), 114 cert. were Merger Guidelines Guidelines. (1994), 1194, that the 127 L.Ed.2d 543 S.Ct. 1968 to aid officials promulgated in authority Sentencing Commission lacks deciding to whether Department of Justice judicial interpretation of a displace prior a to They pe- are violations. prosecute antitrust to me statutory again this seems term. Once notify business inter- riodically published to The issue here question. to misconceive by the being applied ests of the standards take direction not whether courts must Al- exercising its discretion. government in they may agency ruling, but from an whether acknowledged that the widely though it is pur accept guidance for the voluntarily such judiciary do not bind Merger Guidelines statutory in satisfactory pose achieving a corpo- determining whether to sanction in Palacio decided terpretation. We anticompeti- for acquisition merger rate rejected proposed having first effect, Corp. Federal Trade v. tive Fruehauf compelled to be interpretation, we would not (2d Cir.1979), 345, Comm’n, 353 F.2d 603 intervening ruling by adminis an reverse our as a benchmark commonly cite them courts has no interpretation. decision That trative Virgi- A. Newborn & legality. Steven may alter their bearing on courts Accep- Snider, Growing Judicial nia L. voluntarily ac- Guidelines, interpretation 60 Antitrust Merger tance of Inc., 981, Hughes, 985 908 F.2d v. Baker Guide ed States particular use 21. Courts also (D.C.Cir.1990); product relevant lines, commentary, its definition of to accompanying or their Foods, Inc., market, interpretation a different New York General provide a rule Kraft Kim, 77881, (S.D.N.Y.1995); guideline. States v. at *44 analogous In United 1995 WL behavior, (2d Cir.1990), determining we commen Unit- used collusive F.2d 678 896 indicia Archer-Daniels-Midland, F.Supp. departures histo the criminal 781 tary written ed States v. axis, Indeed, departures 1991). applied 1400, (S.D.Iowa it to ry with re- horizontal 1423 concentration, v. Cer axis. In United States measuring on the vertical spect market 50, (2d Cir.1989) vantes, and United F.2d 53 878 for- typically adopt recommended the Guidelines' 409, 405, (2d Coe, See, 412 Cir. 891 F.2d e.g., States v. Ball industry standard. mula as 1989), interpreted Ins., to bar the text of 4A1.3 Hosp. Hosp., Inc. v. Mutual Memorial directly moving sentencing judge from Stores, from 1325, (7th Cir.1986); Bon-Ton Category History inadequate 860, Criminal Co., F.Supp. May Dept. Stores Inc. v. sentence, require court to appropriate but to (W.D.N.Y.1994). catego adequacy higher of the next consider the Guidelines Coe, deferred to Courts have moving sequence ry before another. reasons, law, among other complex area expressly Although we had 891 F.2d (1) notwithstanding court's ulti Coe, 409, guidelines text because noted in id. promulgates agency authority, requirement impose procedural mate the same did not enforcing responsibility primary departures Part 5K has made under them on vertical axis rules, Kim, Mfg. Guidelines, Co. v. F.2d at antitrust Allis-Chalmers we later Inc., Indus., 414 F.2d requirements de imposed procedural Consol. White Cir.1969), denied, 4A1.3, (3d governing 396 U.S. axis rt. horizontal rived from ce (2) (1970); departures, departures under 24 L.Ed.2d 501 history criminal agency simply good policy that requirement later abandoned it is 5K. The Part possi Rodriguez, consistently interpreted as impractical. practice See United denied,-U.S. law, (2d Cir.), Community binding Publish cert. case 968 F.2d ble -, ers, F.Supp. Donrey Corp., L.Ed.2d 92 Inc. v. (W.D.Ark.1995). rationales These 1161 n. 14 judicial atten propriety of speak equally to the upon the example, courts have relied 22. For policies Commission's "nonentry” tion Merger listed indicia Guidelines’ sentencing generally. non-monopoly power, Unit- criminal suggestive of factors cepting uncompelled guidance from a con- volume of dealing, increases the sen- interpretation, structive administrative in or- years, tence from 10 months to 10 the sen- 3553(a) der to avoid irrational objectives results. It would tencing seriously an odd rule indeed that forbade courts from undermined. Such a sentence does not “re- doing so.23 offense”; flect the seriousness of the it does “provide just punishment”; punish- Indeed, general statutory mandate vastly “greater ment necessary” than governing imposition sentences, protect public and deter further crimes. 3553(a), directs courts to fashion a Indeed, creates, avoids, rather than unwar- rational sentencing policy, harmonious fur- disparity, justifiably ranted promotes thering goals sentencing. enumerated disrespect for the law. The statute impose directs court to “sufficient, sentence greater again, but Once I acknowledge that if such necessary” accomplish goals, deplorable stated consequences required by were including (A) “the need for the ... statute found the Supreme Court to be offense, to reflect the constitutional, seriousness of the no have choice but to law, promote respect for provide and to enforce the statute. But when courts have (B) just punishment offense, for the leeway afford some interpretation statutes, of adequate conduct; deterrence to surely criminal duty it is their to make use of it in (C) protect public [and] from further order to avoid irrational results. See Public crimes of directly the defendant.” More Justice, Citizen v. Dept. United States of point, the statute instructs 440, 454, courts to 2558, 2567, “consid- U.S. 109 S.Ct. er ... (1989) kinds ... sentence set (citing L.Ed.2d 377 Church forth ...; guidelines any pertinent policy Holy Trinity 457, v. United 143 U.S. statement issued 459, 511, 512, Commis- (1892)). 12 S.Ct. 36 L.Ed. 226 ...; sion If, [and] to avoid need unwar- adopting for purposes statutory ranted disparities among defen- interpretive sentences an promulgated rule dants with similar records who have Commission, been the courts guilty found of similar (empha- conduct.” Id. can avoid such consequences atrocious added). goals sis These apply only not can find a harmonious construction for the imposition of discretionary individual sen- good there can be no reason to fail to tences but interpretation also in the of rele- do so. See United States v. American vant sentencing guidelines Ass’ns, Inc., and statutes. Trucking 534, 543-44, 1059, 1063-64, 60 S.Ct. 84 L.Ed. 1345 objectives 3553(a) § set forth if be furthered courts were to interpret instance, Commission, this following with accordance the Commis- mandate 991(b)(1), under 28 U.S.C. has sion’s measurement formula. If presence history reviewed the recent of sentencing for glass (unlike orange juice, LSD offenses and prob- identified a serious cut) heroin is immaterial the harm or lem unwarranted disparities. The Com- argument 23. A may second 373-74, graphs, advanced 402 U.S. against position this always inappro- is that it is (1971) 28 L.Ed.2d 822 (requiring that priate adopt statutory for courts to interpreta- judicial proceedings for forfeiture of obscene impose tions requirements gener- technical 1305(a) materials under 19 U.S.C. com- ally thought legislative interpret in nature. To days mence within 14 and conclude within 60 of mixture containing or substance days). LSD to mean .4 for each dose is such a Second, in this case the court is not asked to bright-line rule. There two answers to this originate legislative question solution. The is concern. whether courts will take an administrative for- promulgated mula although judicial The first is to determine the formula- rules, bright-line unusual, tion of LSD under apply one set of solutions is it is not to the See, precedent. without e.g., County arising same statutory River- under a rule. McLaughlin, 58-59, side v. Accordingly, 500 U.S. court involved in rule- 1661, 1671, (1991) character, making legislative 114 L.Ed.2d 49 of a simply but ("prompt” processing suspects adapts of criminal re- a reasonable ruling administrative quires probable determination of cause judicial within interpretation character to the hours); Thirty-Seven Photo- statute. problem ingeniously solved mission has sentencing by THOMSON-CSF, S.A., Plaintiff- disparities of- Appellant, for such

adopting uniform findings, those ignore fenses. We need cure, in very sensible nor Commission’s penalties

interpreting AMERICAN ARBITRATION 841(b)(1). ASSOCIATION, Defendant, problem solution The Commission’s disparities will be ineffectual of unwarranted Computer 841(b) Evans & Sutherland to re- interpret long as courts Corporation, Defendant- ten-year quire a five- Appellee. single dose of LSD sentence whenever beverage. sugar cube or combined No. Docket 94-9118. trivial interpretation, even in Under single carrier for a cases the Appeals, States Court perpet- displace the Guidelines and dose will Second Circuit. sentencing disparities the Commis- uate the no escape. There will be sought sion April Argued consistency the sen- logical harmonious or Aug. Decided cases, system rather a tencing but of LSD sepa- arbitrary cliffs steep, characterized statutes, and drastic

rating guidelines from morally irrele- following from

consequences

vant details. two-part question— initial

I return to the may, and whether

whether

should, expertise defer to the Commission’s voluntarily adopting

and wisdom sen- for use formula may do no doubt There can be we

tences.

so, Chapman opinion as set- if we read Supreme Court only

tling questions those

actually As to considered.

should, application of the Commission’s produce a ra- would

formula to the statute

tional, harmonious fair offenses, place of one for LSD

scheme irrational, arbitrary, inconsistent. serve the intentions also better pro- interpretation that

Congress than an results. quirky and indefensible

duces such I there- can we ask?

What better reasons respectfully dissent.

fore

Case Details

Case Name: United States v. Gregory Alan Kinder

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 16, 1995

Citation: 64 F.3d 757

Docket Number: 816, Docket 94-1333

Court Abbreviation: 2d Cir.