UNITED STATES оf America, Plaintiff-Appellee, v. Kevin D. JOHNSON, Defendant-Appellant.
No. 91-1621.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 1, 1992. Decided July 29, 1993.
999 F.2d 1192
III.
The district court did not err in refusing to admit the witness‘s insufficiently corroborated exculpatory statement, and the court correctly sentenced Groce as an armed career criminal under
Stephen B. Clark, Asst. U.S. Atty. (argued), Michael Jude Quinley, Office оf the U.S. Atty., Crim. Div., Fairview Heights, IL, for plaintiff-appellee.
Daniel S. Alexander (argued), Chicago, IL, for defendant-appellant.
Before CUDAHY and RIPPLE, Circuit Judges, and LAY, Senior Circuit Judge.*
LAY, Senior Circuit Judge.
Kevin D. Johnson was charged with knowingly and intentionally possessing with intent to distribute more than 50 grams of cocaine in violation of
I. FACTS
On July 25, 1990, Special Agent Donald Veal executed a search warrant on Kevin Johnson‘s residence at 1416 North 40th
II. DISCUSSION
A. Calculation of the base offense level
Johnson asserts that the court erred in including the weight of the liquid in Government Exhibit 7 to determine his base offense level. The total weight of the cocaine base recovered, including cutting agents and adulterants, but not including the water was 47.4 grams.2 The weight of the waste water was 31.89 grams. Inclusion of the weight of the waste water with the 47.4 grams increased the base offense level by two points and the mandatory sentence from five years to ten years. Johnson argues that the liquid was waste material leftover from the cocaine base manufacturing process and that it should not be included under the Sentencing Guidelines.3
Section 2D1.1 of the Sentencing Guidelines states:
Unless otherwise specified, the weight of a controlled substance set forth in the [Drug Quantity Tablе] refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.
Exhibit 7 contained a “trace amount of cocaine” suspended in liquid, but the suspended particles could not be weighed. Because the liquid was not marketable and could not in any way be used as a drug, Johnson argues that it is not a “mixture” as contemplated by Congress. The government urges that to accept defendant‘s argument would be to ignore the plain meaning of the statute and its interpretation by the Supreme Court. We disagree.
In Chapman v. United States, — U.S. —, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), the Supreme Court addressed the meaning of the terms “mixture or substance” under
[Congress] intended the penalties for drug trafficking to be graduated according to the weight of the drugs in whatever form they were found—cut or uncut, pure or impure, ready for wholesale or ready for distribution at the retail level. Congress did not want to punish retail traffickers less severely, even though they deal in smaller quantities of the pure drug, because such traffickers keep the street markets going.
Id. (citing H.R.Rep. No. 99-845, supra at pt. 1, p. 12) (emphasis added). Congress therefore set mandatory minimum sentences corresponding to the weight of the “mixture or substance containing a detectable amount of” the various controlled substancеs, including LSD. Chapman, at —, 111 S.Ct. at 1925.
The Court concluded that the blotter paper was a “mixture or substance containing a detectable amount” of LSD. Adopting an ordinary dictionary definition of the word “mixture,”5 the Court stated:
The LSD is diffused among the fibers of the paper. Like heroine or cocaine mixed with cutting agents, the LSD cannot be distinguished from the blotter paper, nor easily separated from it. Like cutting agents used with other drugs that are ingested, the blotter paper, gel, or sugar cube carrying LSD can be and often is ingested with the drug.
Id. at —, 111 S.Ct. at 1926. The Court further stressed that Congress had a rational basis for its choice of penalties for LSD distribution. The penalty scheme assigns more severe penalties to the distribution of larger quantities of drugs.
By measuring the quantity of the drugs according to the “street weight” of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the stаtute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity.
Id. at —, 111 S.Ct. at 1927-28.
The government urges that the statute and Chapman require inclusion of the total weight of the waste water because it is clearly a mixture as that word is commonly understood. The government focuses on the fact that the cocaine residue and the water are “two substances blended together so that the particles of one are diffused аmong the particles of the other.” Chapman, at —, 111 S.Ct. at 1926. We do not agree that Congress intended or that Chapman requires such a narrow understanding of the term “mixture” in this context.
The Chapman Court‘s inclusion of the weight of the blotter paper is rational in light of congressional intent and the unique characteristics of LSD. Congress intended penalties to be based on the “street weight of the drug” in the form in which it is sold. Its focus was on the weight of drug mixtures “ready for wholesale or ready for distribution at the retail level.” Id. at —, 111 S.Ct. at 1925. The unique characteristics of LSD thus required inclusion of the weight of the blotter paper. An average dose of LSD weighs approximately .05 milligrams.6
The unique characteristics of LSD do not exist in the present case. The waste water does not serve as a dilutant, cutting agent or carrier medium for the cocaine base. It does not “facilitate the distribution,” Chapman, — U.S. at —, 111 S.Ct. at 1928, of the cocaine in that cocaine is not dependent on the water for ingestion, and unlike a dilutant or cutting agent, the waste water does not in any way increase the amount of drug available at the retail level. The liquid, with just a trace of cocaine base, is merely a byproduct of the manufacturing process7 with no use or market value. The waste water is not ready for distribution at the wholesale or retail level because it will never be distributed at all.8 Under a market-oriented approach, when the mixture is not ingestible and therefore not marketable, there is no rational basis to a sentence based on the entire weight of a useless mixture. United States v. Acosta, 963 F.2d at 555.
To read the statute or Chapman as requiring inclusion of the weight of all mixtures, whether or not they are useable, ingestible, or marketable, leads to absurd and irrational results contrary to congressional intent. The defendant asks us to imagine a marijuana farmer who harvеsts his crop, leaving a few traces of the illegal plants on the ground. The farmer then plows his field to prepare for next year‘s crop and in so doing mixes the traces of marijuana with the soil. Is the farmer accountable for all the marijuana he harvested as well as the combined weight of all his topsoil?9 As the Second Circuit pointed out, it is function not form that is critical. Acosta, 963 F.2d at 554. Congress was clearly concerned with mixtures that will evеntually reach the streets, i.e. consumable mixtures. Chapman, — U.S. at —, 111 S.Ct. at 1926, 1927-28.
We also find that a broad application of Chapman, as urged by the government, undermines the primary concern of the Sen-
We do not dispute that cutting agents and dilutants can be factored into the weight calculation. Nor do we have a case where a suitcase or object is the carrier medium of a blended drug. In the present case, the waste water was not a carrier and was not a useable, ingestible or marketable mixture. We hold that it was error to include the weight of the liquid in the sentencing calculus.
B. Role in the offense enhancement
Johnson argues that the district court erred in enhancing his sentence three levels pursuant to
District courts are encouraged to support findings of facts in sentencing proceedings with subsidiary findings, both to “aid the district court in identifying relevant factors in applying the Guidelines and to guide the reviewing court to the evidentiary basis for a sentencing determination.” United States v. Hernandez, 931 F.2d 16, 18 n. 2 (7th Cir. 1991) (per curiam). See also United States v. Lanese, 890 F.2d 1284, 1294 (2d Cir.1989) (“Since on the record before this court, it is unclear whether there is sufficient evidence to support the district court‘s determination as to the number of ‘participants’ for purposes of § 3B1.1(b), we remand to the district court for a specific findings as to the identities of the ‘particiрants‘“). In United States v. Jewel, 947 F.2d 224, 235-36 (7th Cir.1991), this court found that the district court erred by failing to indicate which of the alleged participants each defendant supervised or managed. The case was remanded to the district court for a specific finding as to the identities of the “participants” because the district court “left unclear the evidentiary basis for [its] sentencing determination.” Id. at 235.
In the present case, special Agent Don Veal testified at trial that informant James O‘Neill told him that Johnson used ten to fifteen teenagers to distribute the crack on the streets from the abandoned house at 1425 44th Street. There is strong evidence that O‘Neill, according to Agent Veal, was not always reliable and tended to exaggerate claims. Although hearsay evidence may be considered for sentencing purposes, United States v. Beal, 960 F.2d 629, 634 (7th Cir. 1992), this was the only evidence offered to prove that Johnson was a supervisоr or manager of at least five participants. There was expert testimony that the defendant was a schizophrenic and not capable of directing or managing a large scale operation. The informant never identified any of the teenage “distributors.” Five teenage males were found “camping out” at the abandoned house, but there is absolutely no evidence tying
We find the presence of the young men at the abandoned house, without evidence of drug activity, to be without weight and should not be considered in determining whether there should be a three рoint enhancement. Indeed we can think of a plentitude of reasons why teenage boys would be hanging out in an abandoned house across the street from the Projects that do not lead to the presumption that they were participants in a crack ring.
On the record before us, we do not feel that the district court focused with sufficient precision on the enhancement for Johnson‘s role in the offense. We therefоre remand to the district court for a further finding in this regard.
C. Downward departure based on mental condition
At trial, both prosecution and defense psychiatrists diagnosed Kevin Johnson as borderline mentally retarded and schizophrenic. Beginning in 1983, Johnson had been hospitalized for acute schizophrenia and suffered from hallucinations, distorted thinking patterns, and hearing command voices. In Johnson‘s first trial of this case, the court declared a mistrial at the close of all evidence duе to Johnson‘s incompetency.
Johnson argues that the district court erred in not departing downward based on his severe mental condition as authorized by
A decision not to depart is reviewable on appeal if it is the product of a conclusion that the judge lacks authority to depart. United States v. Poff, 926 F.2d 588, 590 (7th Cir.1991). However, we do not review a purely discretionary refusal to depart. See United States v. Franz, 886 F.2d 973, 978 (7th Cir.1989). At sentencing, Judge Beatty stated: “I might consider departing as talked about by [defense counsel], but I‘m not sure that would be appropriate, but for that reason, I am going to sentence the defendant to the low end of the range, ie. 188 months . . .” We find it clear from this language that Judge Beatty believed he had the authority to depart, but declined to do so because he did not think it appropriate. We therefore find no error.
The case is remanded to the district court for resentenсing.
RIPPLE, Circuit Judge, concurring.
I join in the result reached by today‘s majority, reversal of the sentence imposed upon Mr. Johnson. I write separately to emphasize that we are only called upon to consider a case in which the defendant is charged with possession with intent to distribute narcotics.
After careful analysis of Chapman and its progeny, the majority focuses upon the passage in Chapman that discusses the “market-oriented” approach to punishing drug trafficking. See Chapman, — U.S. —, —, 111 S.Ct. 1919, 1925, 114 L.Ed.2d 524 (1991); Majority Op. at 1194-95. I believe that this part of the Chapman analysis clearly supports the majority‘s conclusion that “when the mixture is not ingestible and therefore not marketable, there is no rational basis to a sentence based on the entire weight of a useless mixture.” Majority Op. at 1196. As the majority has acknowledged in passing in footnote 7 of its opinion, we need not reach whether there would be any rational basis for a sentence based upon the entire weight of a non-ingestible mixture that is the by-product of a drug manufacturing process, if manufacturing of the drug had been charged in the original indictment. Although possession with intent to distribute and manufacturing are proscribed by the same section of the United States Code, they are separate offenses composed of separate elements. See
DONALD P. LAY
SENIOR CIRCUIT JUDGE
Notes
In the case of a violation of subsection (a) of this section involving—50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life....
The Second Circuit in United States v. Acosta, 963 F.2d 551 (2d Cir.1991), disagreed with the reasoning of the First Circuit in the above two decisions. In not calculating the weight of a creme liquor, used to transport the 2.245 kilograms of pure cocaine, the Second Circuit reasoned that the cocaine was not usable until distilled out of the creme liquor. The court stated:
Congress has made clear that the weight of drugs sold at the wholesale or retail level, rather than their purity, is the yardstick of culpability. The problem, however, is that under a market-oriented approach, when the mixture is not ingestible (and therefore not marketable), there is no reason to base a sentence on the entire weight of a useless mixture. The issue here is marketability, not purity. This distinction was highlighted by the Eleventh Circuit when it held that the sentence was to be based on the amount of the usable mixture—not the pure cocaine, but the cocaine mixed with the ingestible cutting agents. For this reason, we are constrained to disagree with the First Circuit.
Acosta, 963 F.2d at 555 (citations and footnote omitted).
Aggravating Role
Based on the defendant‘s role in the offense, increase the offense level as follows:
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.