United States v. Larry D. Richards

wiretap evidence could cure its failure seal non-tampering. 495

by putting proof on The Court reached that view

U.S. at 264-65. Congress’s choice—not its own. It

based on could

is hard for me to see how the Court government Ojeda Rios that

hold “timely” the failure to seal the

could not cure recording by showing evidence of

wiretap consistently

non-tampering and hold prove burden to he was

defendant has the

prejudiced by the total failure to seal at all.

Congress integrity determined that the has tapes specific sealing insured be

requirements. I believe this such, presumes prejudice,

choice and as

requirement proof by the defendant that

prejudice congressionally has been exists

preempted. As the has

pointed out: suppression require intended to satisfy any

where there is failure to directly statutory requirements that

those substantially implement congres- intercept limit

sional intention to the use clearly

procedures to those situations call- employment for the of this extraordi-

nary investigative device. Giordano, 505, 527,

Thus, Mr. is entitled to a new trial in Gomez wiretap government’s

which the evidence is

suppressed. reasons, foregoing respectfully I

For the

dissent. America,

UNITED STATES

Plaintiff-Appellant,

Larry RICHARDS, D. Defendant-

Appellee.

No. 94-4052. Appeals,

United States Court of

Tenth Circuit.

Oct.

SEYMOUR, Judge. Chief action, Richards filed a present In Mr. pursuant to 18 modify his sentence motion to 3582(c)(2). doing, In so he relies U.S.C. commentary sentencing upon amended waste water from guidelines which excludes or substance” for of “mixture the definition methamphetamine. weighing granted the motion and court The district sentence from 188 reduced Mr. Richards’ appeal, gov- to 60 months. On months commentary ernment concedes applicable guideline range but changed cannot alter the asserts pur- for definition of “mixture or substance” poses of the minimum sentence. government contends that Mr. thus subject remains to a stat- Richards’ sentence utory mandatory minimum of 120 months. We affirm.

I. pled guilty pos- Mr. Richards manufacture metham- session with intent to phetamine, in violation of U.S.C. 841(a)(1). statutory penalty provision sentencing guideline provide and the relevant measuring possible for metham- two methods purposes: phetamine for weight pure drug or the of the Dance, Wayne T. Assistant United States containing a detecta- (Scott Matheson, Jr., Attorney M. drug. amount of the U.S.C. ble briefs), Attorney, with him on the Salt 841(b)(1);1 2D1.1.2 Mr. Rich- Utah, City, Plaintiff-Appellant. for Lake possessed grams metham- ards phetamine, which combined with waste was DeLand, DeLand, Loni F. McRae & Salt weighing 32 kilo- water to form a mixture Utah, City, Defendant-Appellee. Lake Ree., Consequently, grams. vol. IV at 14. SEYMOUR, him months of Judge, the court sentenced to 188 Before Chief BALDOCK, VAZQUEZ, imprisonment years supervised Judge, and and five Circuit Judge.* release.3 District Vazquez, Judge, 2. The Guidelines determine sentenc- * The Honorable Martha District Mexico, designation. drugs. sitting by of the of New levels based on District addition, they provide "[i]n case 841(b)(l)(A)(viii)provides mandatory

1.Section containing mixture or substance ... metham- years imprisonment persons minimum of phetamine, use the offense level determined 841(a) possess grams violating section who "100 substance, weight of the mixture or or the entire kilogram methamphetamine or ... or 1 more the offense level determined containing or or more of mixture (actual), methamphetamine ... whichever methamphetamine.” amount of detectable 2Dl.l(c). greater.” U.S.S.G. 841(b)(l)(B)(viii) a mini- Section mandates years person five for a convict- mum sentence of 841(a) grams at a level possessing 3. The court classified Mr. Richards under section "10 grams methamphetamine Guidelines because the to- ... or 100 more of containing containing mixture the metham- tal more of a mixture or substance kilograms. phetamine methamphetamine,” was 32 detectable amount of 841(b) challenged Mr. Richards that sentence on construed section to include waste wa- First, separate substance,” occasions. he filed a part three ter as of a “mixture or pursuant motion to vacate the sentence to 28 government maintains that Mr. Richards re- court which the district de- subject statutory mandatory mains to a mini- a second motion nied. Then he filed under imprisonment years, mum term of of ten granted section 2255. The district court trumps guideline which- sentence. motion, appeal, holding reversed on but we We review de novo the district court’s petition constituted an abuse that the second interpretation statutory provisions and the Richards, writ. v. United States sentencing guidelines. See United States v. Cir.1993). F.3d 1369 His latest avenue (10th Cir.1991). 1447, Agbai, 930 F.2d 3582(e)(2), attack is 18 which U.S.C. modify prison allows a district court to II. of a “who has term defendant been sentenced government argument The bases its on the imprisonment to a term of based on a sen- commentary notion that amended to the sen- tencing range subsequently that has been tencing guidelines change cannot Sentencing the estab- lowered Commission....” judicial interpretation lished of a statute. Al- motion, In the current Mr. Richards al- assertion, though agree with this it is leged agreed court and the district inquiry disagree irrelevant to our because we commentary amended to section 2D1.1 of the definitively that we have construed the stat- sentencing guidelines mandates his sen- ute itself to include waste water in its defini- tence be reduced from 188 months to 60 tion of “mixture or substance.” The amend- commentary provides that months. The now commentary may ed therefore instruct our or substance does not include ma- “[m]ixture separated terials that must be from the con- of the statute. trolled substance before the controlled sub- government asserts that the Sentenc 2D1.1, stance can be used.” U.S.S.G. com- ing authority Commission does not have commentary ment. n. 1. The amended be- supersede precedent interpreting “mix 1993, came on effective November purposes ture or substance” for of section Sentencing expressly Commission made it 841(b). Neal, See United States v. 46 F.3d 1B1.10(c). retroactive. U.S.S.G. The com- (7th Cir.1995) (en bane), cert. mentary lists “waste water from illicit — - -, granted, laboratory” example as an aof (1995) (“The Commission is comprise

that cannot a “mixture or sub- authority without [Supreme to override comment, 2D1.1, stance.” U.S.S.G. n. 1. precedent].”); v. Pala government concedes that this amend- (2d Cir.1993) (“[OJnee cio, 4 F.3d applicable to Mr. Richards. have construed we will not rein [a] that, It does not contest his assertion terpret guidance init the absence of new guidelines, his sentence must be based on denied, U.S. -, Congress.”), from pure methamphetamine the amount of (1994). 1194,127 This that his level must therefore be argument assumption on the that we rests gov- reduced from a to an level 38 18. The authoritatively construing have asserts, however, ernment that the Sentenc- 841(b). section ing Commission’s decision to exclude waste Neal, held that an Seventh Circuit water from “mixture or substance” does not sentencing guideline prescribing a phrase amended alter the definition of that Claiming presumptive per context. that we have dose of LSD4 did 1, (but following 4. On November amend- of actual LSD different carrier Commentary weights), disproportionate ment to the Guide- as well as sentences other, weights dangerous lines became effective: “Because the those stances, more controlled sub- vary widely typically Consequently, LSD carrier media far such as PCP. in cases medium, involving exceed the itself, of the controlled substance LSD contained in a carrier weight per the Commission determined that has established a has bas- Commission ing milligram offense levels on the entire dose of determin- LSD of 0.4 U.S.S.G., C, produce App. level.” and carrier medium would unwarranted the base offense disparity among involving offenses the same Amendment 488 841(b) (1994); United States 127 L.Ed.2d interpretation of section not alter (10th Cir.1991) Chapman Dorrough, established Callihan, L.Ed.2d 524 (same); (1991). Neal, Cir.1990) (same). at 1408-09. argues, It how- “ 841(b) to include section construed ever, that or substance’ ‘[m]ixture because paper containing “hits” weight of blotter has the same 2D1.1] in [section as used in the measurement LSD 841,” in 21 as 111 S.Ct. at or substance.” comment, implicitly § 2D1.1 n. we have Citing Chapman, as well. We are settled the issue recognized that its new itself Commission persuaded. measuring approach to LSD Dorrough, we construed Callihan and applicability not override the purposes “does in section 2D1.1 of “mixture or substance” purpose for the or substance’ of ‘mixture any cita- guidelines reference or without any minimum sentence.” applying construction, merely or its tion to the statute backg’d; see also United 2D1.1 U.S.S.G. ad- relying on the Commission’s (1st Cir.1994) Boot, 52, 55 v. 25 F.3d States any compound “if monition that mixture (“[W]e Congress simply that ac- conclude any amount of a con- contains detectable in reach of Amend- quiesced the restrictive substance, the entire amount of the trolled in duly noted the Commission ment 488 18.”). in compound mixture or shall be considered application note Callihan, measuring quantity.” 915 F.2d Likewise, in Palacio the Second Circuit * 2D1.1, n. (quoting at 1463 table sentencing guidelines’ amended held that the (Oct. 1987)); Dorrough, also 927 F.2d see alter its “cocaine base” did not definition of Callihan). (relying 502 on statutory interpretation conflicting in States v. same term established determining We later were faced with Jackson, Cir.), cert. de F.2d 158 Supreme Court whether the United States - nied, decision, Chapman v. United Palacio, 4 F.3d L.Ed.2d com Recognizing that the amended 154-55. (1991), supersedes ear the Tenth Circuit’s mentary in determin would be authoritative weight prod óf waste position lier guidelines, ing base offense levels under by-product ucts that are the interpretation of the court noted that its own manufacturing process but that contain a binding pur in for the statute Jackson was a controlled sub detectable amount of mandatory mini poses determining calculating may be used in a defen stance initial of [the] mum where “our construction § 2D1.1 of dant’s base offense level under solely indepen the result of an [was] statute court, citing guidelines. The district judicial interpretation of a dent Dorrough, v. United States term.” Id. (10th Cir.1991), and v. United States agree that We amended Callihan, Cir. any sentencing guidelines cannot alter 1990), that of unusable ruled prior, independent construction of section containing by-products a detectable waste 841(b) However, may we we have made. P-2-P for amount of are to be included specifically interpreted the stat have never sentencing purposes under the Guidelines. require apart from the ute Killion, Killion, F.Supp. at 1167. how in inclusion of waste water its definition ever, that the district court maintains “mixture or substance.” including by erred in waste have government concedes that we calculating products in his sentence be interpreted in “mixture or substance” Dorrough and Callihan were decid cause context of section 2D1.1 of the effectively overruled prior to and were 16; Aplt.Br. guidelines. see United States by Chapman. (10th Cir.1993) Killion, (weight v. 7 F.3d 927 7 F.3d at 929. We held by-products may be used to calcu of waste interpretation of sec- 2D1.1), Supreme Court’s recent late base offense level under section denied, U.S.-, did not overrule Colli- tion 841 Dorrough. ly Noting Id. at 934. construed the term han circuits, acknowledged split among 841; merely of section fol- had of those courts held prior lowed the in- Commission’s emphasis Chapman and its on the marketa terpretation guideline. via its bility paper mandated that of the blotter sep Because we have not ourselves “sentencing may calculations under 2D1.1 arately interpreted “mixture or substance” on the of mixtures con be based statutory purposes, we are now faced unusable, taining unmarketable materials.”5 job construing with this task. “Our stat Acosta, (citing Id. at 932 United States v. utes is to effectuate the intent reflected (2d Cir.1992); F.2d 551 United States v. language legis of the enactment and the (3d Cir.1992); Rodriguez, 975 F.2d 999 Unit process....” lative State Colorado v. Jennings, ed States v. 945 F.2d 129 Co., Mining Idarado Cir.1991); Johnson, United States (10th Cir.1990). Although a combination of (7th Cir.1993); F.2d 1192 methamphetamine and waste water seems to Robins, (9th Cir.1992); 967 F.2d 1387 “mixture,” dictionary fit within a definition of Rolande-Gabriel, required “‘produce we are not a result (11th Cir.1991)). however, Recognizing, demonstrably at odds with the intentions of prior we were “bound ”6 its drafters.’ United States v. Ron Pair panels absent en banc reconsideration or a Enter., Inc., 235, 242, 489 U.S. 109 S.Ct. superceding contrary by decision the Su 1026, 1031, (quoting 103 L.Ed.2d 290 Court,” 930, preme joined id. the First Contractors, Inc., v. Oceanic 458 U.S. “expressly declining and Fifth in Circuits to Griffin 564, 571, 102 3245, 3250, S.Ct. contrary precedent” overrule to the where “ ” (1982)); Co., see also NLRB v. Lion Chapman speak’ Oil ‘did not to the issue. Id. 282, 288, 330, Walker, 333-34, 1 (quoting U.S. at 933 United States v. S.Ct. L.Ed.2d (5th denied, 409, Cir.), F.2d cert. said in Lion Oil Co.: 443, 121 113 S.Ct. complete If the above words are in read (1992)). holding held that narrow in We Act, isolation from their context in the Chapman regarding of an LSD interpretation possible. such an is Howev pre carrier medium did not affect our “clear er, statute, expounding “In a we must not construing cedent” section 2D1.1 to include guided by single be a sentence or member by-products. waste than Id. 934. Rather sentence, provisions but look interpret merely rejected Killion law, object policy.” the whole and to its and the notion that the Court’s inter Moreover, in Mastro Plastics we cautioned pretation in of the statute a different context against accepting a construction that required change prior us construction produce incongruous “would results.” Moreover, guideline. express of the Killion (quoting Id. at at 334 Mastro S.Ct. ly stated that is the Guideline we are “[i]t NLRB, Corp. Plastics v. construing.” Id. at 935. believe a fair We 349, 359, 359-60, 76 S.Ct. 100 L.Ed. 309 reading construing of Killion is that it was (1956) (citations omitted)). required by prior section 2D1.1 as Tenth cases, approach follow the judicial We making Circuit not a definitive 841(B). Thus, Court, interpretation Congress’ which intent in of U.S.C. looked for independently legisla- language we have not and authoritative- both section 841’s and the adopting approach enough judge just 5. The six circuits 6. to use rea- “Thus it not for the logical more, soned that "it is to include the might dictionary. If he should do no he materials that are marketable or facilitate the marketability every come out with a result which sensible man drug question, and to in recognize quite opposite what would to be exclude the of materials that do not.” intended; really would was which contradict or (10th v. United States F.3d plain purpose.” leave unfulfilled its Hand, Learned Cir.1993). Those courts also based their inter- Rendering Judge How Far Is a Free in enacting pretation Congress, on the fact that in Decision?, (Irv- Spirit Liberty " in The section ‘was concerned with mixtures ed., 1952). ing Dilliard eventually will reach the streets—consumable ” (quoting mixtures.' States v. Rodri- (3d Cir.1992)). guez, 975 F.2d “mixture,” transported was caine history. Chapman, 500 U.S. tive authority). distinguishing prior The Court found Fifth Circuit at 1924-25. ap “adopted Mahecha-Onofre, ‘market-oriented’ Congress States v. But see United drug trafficking,” which punishing (1st denied, proach Cir.), 936 F.2d 625-26 according distribut punished 648, 116 1009, 112 S.Ct. drug than the amount ed “rather Sherrod, (1991); 964 F.2d United States 461, 111 at 1925. Id. at involved.” Cir.1992); United States 1509-10 Chapman found that “a carrier Accordingly, Beltran-Felix, 1075, 1076 the distribution ... used to facilitate medium Cir.1991). distinction This usable/unusable rationally in drug” included was con applied two circuits has been Id. at punishment. weight used to determine water, methamphetamine in see waste text Here, Chapman’s at 1928. 129; Jennings, 945 F.2d Congress’ “market-oriented” recognition of (11th Cir.1993), Newsome, 998 F.2d 1571 not treat unusable approach dictates in the context of cocaine two circuits they if were usable. mixtures as 1192; Johnson, water, waste see distinguished between Five circuits have Palacios-Molina, 7 F.3d 49. drug mixtures inter usable and unusable This of “mixture of section 841 preting “mixture” statutory purposes per also substances” 2D1.1. States v. and section See United definition mits us to refer (2d Cir.1992) Acosta, congruent interpretation of the “adopt a (“[E]ven though liqueur the cocaine/creme original Pala term as an matter.” may dictionary definition of fall within the cio, created the ‘mixture,’ legislative history convinces us charged Sentencing Commission 1984 and liqueur weight of the creme must be “ ‘establishing] sentencing task of it with the excluded.”); Rodriguez, 975 States v. Cir.1992) (“We crimi policies practices for the Federal 999, find that F.2d 1007 justice system.’” v. adopted nal Stinson differentiation the usable/unusable — Second, Sixth, Ninth, States, U.S. -, -, 1913, and Eleventh 113 the S.Ct. Circuits, ap First Circuit 1916, (quoting rather than the 123 L.Ed.2d 598 28 reasoning Chapman.”) 991(b)(1)). proach, best follows the Commentary promulgated -, Jennings, v. 945 F.2d United States it is authoritative “unless the Commission Cir.1991) (6th 129, (“[I]nterpreting the 136 or a federal violates Constitution require of the entire statute to inclusion with, plainly erroneous or is inconsistent sentencing in would this case [mixture] of, guideline.” reading Id. at [the relevant] produce illogical an result and be con both authority sweeping 1915. Because of its trary legislative underlying matters, “significant sentencing discretion” Johnson, statute.”); 999 United States Mistretta v. United 488 U.S. (“To (7th Cir.1993) 1192, read 647, 657-58, 102 L.Ed.2d 109 S.Ct. requiring inclusion of statute or as (1989), may draw on the Commission’s mixtures, weight of all whether or not sentencing interpretations of federal stan marketable, usable, they ingestible, or are endeavoring dards when to reach our own absurd and irrational results con leads to statute. intent.”); trary Sentencing specifically The Commission Rolande-Gabriel, 1231, 938 F.2d States v. in its amended addressed the current issue (11th Cir.1991) (“The Chap 2D1.1, clearly exclud- to section plain meaning interpreta man found that weight of waste water from the mea- an irration “mixture” does not create tion of or substance.” surement of a “mixture in the context of LSD and standard al result comment, n. 1. com- 2D1.1 U.S.S.G. mediums; however, present carrier mentary provides: court to fail it be irrational for the ease would not include ma- Mixture or substance does distinguish and unusable between usable separated from the mixtures_”). terials that must be also United States before the controlled Palacios-Molina, 49, controlled substance 53-54 Cir.1993) Examples of such can be used. (holding liquids in which co- waste fiberglass harmonizing materials include the in a co- statutory tance of penalty suitcase, caine/fiberglass provisions bonded beeswax sentencing guidelines. statue, Shewmaker, in a and waste wa- See United States v. eoeaine/beeswax 1124, laboratory Cir.1991), denied, ter from an illicit used to manu- cert. facture controlled substance. U.S. 112 S.Ct. 116 L.Ed.2d 788 (1992); Shorthouse, see also United States v. examples above mirror the facts of (9th Cir.1993) (“The upon Killion and two First Circuit cases sentencing, scheme of including [g]uide- which it relies. n. F.8d at 938 lines, must be harmoniously construed as a addition, Sentencing spe Commission — whole.”), denied, -, cert. cifically stated its intent to resolve the inter- (1994). Further expressed circuit conflict when it its reasons more, because the mandatory mini amending commentary. automatically mum becomes the (1993); Fed.Reg. See 58 *27155 Kil sentence greater when than the maxi (waste lion, water); 7 F.3d 927 mum applicable guideline range, see (1st Cir.) (co Lopez-Gil, 965 F.2d 1124 5Gl.l(b), allowing waste water to caine/fiberglass suitcase), bonded cert. de comprise a “mixture or substance” under the nied, statute effectively nullify would the Commis (1992); United States v. Restre- policy light sion’s choice.9 In persua of this (1st Cir.1991) (co- po-Contreras, 942 F.2d 96 authority, sive we hold that section 841 does statue), denied, caine/beeswax include the by-products waste in the measurement of a “mixture or sub fact, recognized possibili Killion itself stance.” ty pending that the amendment before the Commission would soon resolve the issue.7 Mueller, Citing United States v. (citing F.3d at 931 n. 6 Fed.Reg. (10th Cir.1994), government F.3d 494 (1993) (to C, U.S.S.G.App. be codified no. suggests that we must construe the mandato 484) 1993)).8 (proposed May ry minimum statute as it would have been

Adopting interpretation opposite construed at sentencing, the time of before Commission for Commission clarified the defi applying statutory mandatory mini nition “mixture or substance.” We inter mum unnecessary would lead to pret conflict and foreclosing Mueller as us reducing from recognized impor- confusion. We have mandatory the a sentence below a minimum but Commission, 7. We thus noted in establishing Sentencing Killion: 9.In the open We “sought do not address and leave uniformity for consid- reasonable in sen- possibility split among eration the tencing by the narrowing disparity the wide in sen- respect question with circuits to this has been imposed tences for similar criminal offenses by addressed the United States by committed similar offenders.” U.S.S.G. Ch. (1993) Fed.Reg. Commission. See 58 (to 27-148 statement). (policy Part A.3 C, U.S.S.G.App. be codified at no. 484 adopting commentary, 1993)). the new (proposed May Commis- In the event that the attempted implement policy by sion give to this elimi- previously Commission chooses to sen- nating highly disparate tenced defendants the benefit of a new sentences for the Guide- same opinion line it is not drugs. example, our intention prior For to the new seeking appropriate foreclose Killion from re- commentary, acryl- if the beeswax statue lief. ic suitcase contained the amount same of cocaine 7 931 n. 6. more, weighed considerably but the suitcase defendant with the would receive suitcase Indeed, rejected 8. when we Mr. Richards’ second higher much sentence. Under the new commen- writ, petition habeas as an abuse of the we noted tary, the defendants would be classified argument proposed his that "a amendment to the sentencing range. adopt same If we a conflict- sentencing guidelines retroactively apply will substance,” ing interpretation of “mixture or products exclude the of the waste in de- mandatory impose signifi- minimum would still termining his sentence.” United States v. Rich- cantly higher ards, stated, sentence on the defendant with the 1372 n. 1. We then "If States, suitcase. See also v. United the amendment does become effective and the apply 458 n. n. Commission does it retroac- (1991) tively, may remedy (detailing disparate Richards have a under 18 sentences 3582(c)(2).” § imposed Chapman). U.S.C. alia, gram “1 or more of mandatory minimum inter distributes mandating how containing a Mueller, detectable mixture or substance an interpreted. statute will be U.S.C. of’ LSD. amount by Chapman’s case, we were bound LSD added). 841(b)(l)(B)(v) (emphasis The Su- minimum interpretation determine, therefore, had to Here, preme Court we are free to 496. Id. at statute.10 paper and LSD distribut- the blotter whether of first as an issue interpret the statute constituted a “mixture by the defendants required to inter are not impression. We purposes of the statute. or substance” an outdated in accordance with pret a statute current, with the guideline and in conflict that, LSD, in addition to noted The Court “mix thus construe guideline. We applicable or terms “mixture substance” 841 uses the con in 841 to be section ture or substance” with a number of controlled in connection (cid:127) commentary as with the sistent substances, terms. but does not define the join majority of doing, we In so revised. recognized that The Court therefore Congress’ mar adopting in circuits sister “mixture or repeats phrase substance” as approach to times, including ket-oriented in reference to numerous Chapman. in Although Supreme methamphetamine. articulated interpreted judgment district We AFFIRM LSD, involving inter- of a case the context court. throughout statutory phrase used preted a Analyzing using § 841. time-honored BALDOCK, dissenting. Judge, Circuit construction, principles of majority’s interpre join the I unable to am did because statute Court concluded “mixture or 841’s terms tation substance,” the words “mixture not define case. The the instant substance” ordinary meaning. The given had to be their interpret § as free to we are concludes Court determined: (1) impression because: of first issue por- to include “a A “mixture” is defined (2) so; previously done have not consisting more of two or tion of matter Supreme Court’s pro- that do not bear a fixed components Chap purposes of 841 substance” portion one another and however man v. United regarded commingled are as thoroughly applies separate retaining a existence.” Webster’s I Op. at n. 10. conclude LSD cases. Dictionary 1449 International Third New Court’s au we are bound may consist of “mixture” also A sub interpretation of “mixture or thoritative together blended so two substances Chapman, in all of 841. See stance” among the particles of one are diffused Fur 1925-26. English particles the other. Oxford ther, statutory analysis 1989). Dictionary 921 ed. it contravenes settled rules of flawed because Chapman, 500 U.S. S.Ct. at respect I therefore construction. definitions, con- Applying these the Court fully dissent. paper that and LSD constitute cluded blotter I. plain that a “mixture” under the of crystals are diffused term the LSD because Chapman, Supreme Court defined paper. among of the blotter the fibers pur- for “mixture or the terms substance” weighed paper and LSD Because the blotter con- poses Specifically, § the Court 841. “1 grams, the defendants distributed 5.7 weight of question whether the fronted of a mixture or substance gram or more containing paper LSD or blotter As containing a amount of’ LSD. detectable in deter- pure alone should be used LSD result, subject defendants were a mining eligibility for a manda- a defendant’s 841(b)(l)(B)(v)’s mandatory five § minimum tory under 21 sentence minimum imprisonment. year term of 841(b)(l)(B)(v). 841(b)(l)(B)(v), § § a Under mandatory mini- therefore defined the subject to a The Court defendant he, using §in or substance” imprisonment if terms “mixture year mum term of five Killion, 7 deciding only issue. F.3d at Chapman the LSD that was 10. We have held plain a familiar tool of construction: the lan- (1994), we held that guage doing, Chapman of the statute. In so the Court “deeid[ed] the LSD is- sue.” authoritatively Op. at that 1537 n. 9. determined the words This conclusion misreads consequently rejects Killion and appearing wherever controlling Supreme precedent. ordinary dictionary in 841 have their Thus, meanings. purposes Killion, government agents found 66.3 “mixture” is “two togeth- substances blended grams yellow of a liquid containing 52.9 particles er so that the of one are diffused grams (“P-2-P”) of Phenyl-2-Propanone among particles Chap- of the other.” grams 17.5 of a dark brown substance con- man, 1926 taining unquantifiable trace of P-2-P at (citing English Dictionary 9 Oxford Thus, defendant’s agents house. found a 1989)). ed. total grams of 83.8 of a containing substance P-2-P. The pled guilty defendant to manu- Applying plain meaning of “mixture” facturing grams 83.8 of P-2-P. In comput- ease, set forth in to the instant ing the defendant’s base offense level under methamphetamine waste water and consti- 2D1.1, U.S.S.G. the district court included together tute “two substances blended so gram entire 83.8 yellow particles that among of one are diffused liquid and dark brown substance. The de- particles of the other.” Id. Waste water challenged fendant the district court’s com- therefore, methamphetamine, constitute putation level, of his base contending offense “mixture or substance” for erroneously the court included the possessed 841. See id. Defendant a thir- weight of unusable by-products waste ty-two kilogram mixture of waste water and yellow liquid and dark brown in methamphetamine, containing twenty-eight determining his base offense level. The grams Thus, methamphetamine. De- rejected court challenge, defendant’s cit- possessed kilogram fendant “1 or more of a ing Tenth precedent Circuit holding containing mixture or substance a detectable gram entire 83.8 should be used methamphetamine.” amount of 21 U.S.C. yellow liquid because the and dark brown 841(b)(l)(A)(viii). Defendant is therefore substance contained a “detectable amount” of subject to a minimum sentence P-2-P. Id. at 931. years. ten Id statutorily Because the re- appeal, On we noted that our quired greater minimum sentence is than the requiring construed 2D1.1 as the entire maximum applicable sentence under weight of a containing mixture a detectable guideline range, Defendant must be sen- amount aof controlled substance be used tenced years imprison- to minimum ten determining a defendant’s base offense level. 5Gl.l(b); ment. see United urged defendant us to reconsider our Campbell, position light Chapman. Specifically, Cir.1993) (“Statutes trump guidelines where Chapman adopted defendant contended conflict.”). the two approach, whereby “market-oriented” a de- majority, however, concludes that usable, punished only fendant is market- Chapman does not control the instant case. parts able mixture. We refused to Specifically, asserts depart precedent, from our however. We United States v. 7 F.3d 927 Chapman’s concluded that “market-orient- Cir.1993), approach 114 ed” specifically discussion1 was di- denied Chapman, substances, 1. In the Court noted that: including controlled LSD. It in- penalties drug trafficking tended the to be Congress adopted ap- a "market-oriented” graduated according drugs to the proach punishing drug trafficking, to they in whatever form were found—cut or un- distributed, which the total of what is cut, pure impure, ready or for wholesale or involved, pure drug rather than the amount of ready for distribution at the retail level. length is used to determine the of the sentence. 461, Chapman, 500 U.S. at 111 S.Ct. at 1925 implement principle, Congress To that (citation set omitted). Killion, In we held that the corresponding minimum sentences approach Court’s "market-oriented” discussion to the aof “mixture or substance applied only con- question in the context of the LSD taining a detectable amount of” the various before the Court. 1540 2524, 576, 593, Turkette, 101 S.Ct. U.S. 452 sentencing issue before LSD to the rected (1981). 2533-34, “[W]e 246 will 69 L.Ed.2d the Court. meaning of the lan- plain not restrict assertion, how- Contrary to ‘clearly by Congress absent guage chosen Chapman’s that ever, conclude did not we ” contrary.’ to the legislative intent expressed of “mixture meaning plain (10th 1544, Stewart, 1555 57 Johns v. at to LSD eases. limited was substance” Turkette, 580, Cir.1995) 452 at (quoting U.S. Instead, that the Court 931, we noted 2527). meaning of plain “The at ‘mixture 101 S.Ct. term meaning “analyzed the i.e., conclusive, except in legislation should be 21 or substance’ 811 ”— application Id. at 931 statute. the literal of the entire [in which] ‘rare eases added). Thus, majority’s con- demonstrably (emphasis produce a result a statute will ” have held that “[w]e clusion of its drafters.’ the intentions at odds with issue,” op. at 1538 deciding the LSD Enters., Inc.,

was Pair 489 United States Ron applied 10, erroneous as and n. is overbroad 1031, 235, 242, 103 109 S.Ct. U.S. reading of simple case. As the instant to (1989) v. Ocean- (quoting 290 L.Ed.2d Griffin demonstrates, recog- already have Killion 564, 571, Contractors, Inc., 102 458 U.S. ic control- Chapman sets forth the nized (1982)). If S.Ct. or sub- of the terms ling definition from Congress’ intent is clear they appear in 841. See wherever stance” intent, our give to that language, we effect majority misreads at 931. Because id. turn to an complete, we do not inquiry is controlling Supreme apply it fails Chevron, U.S.A. agency construction. instant case Council, Inc., 467 U.S. Natural Res. Def. wrong thereby result. reaches 2778, 2781-82, 81 104 S.Ct. II. principles, we first examine Applying these controlling prece- ignoring addition language § 841. Because plain dent, majority’s interpretation of “mixture or terms sub- does not define the elementary of statuto- principles contravenes stance,” ordinary statutes, given their they “must be interpreting ry construction. Chapman, 500 U.S. at meaning.” is to “determine primary task first and intent, Moreover, give tools must “full using ‘traditional at 1925. S.Ct. ” NLRB v. Unit- plain meaning construction.’ of 841’s terms effect” Union, 484 Workers Food & Commercial restrict and not their 413, 421, 112, 123, L.Ed.2d (1) 108 S.Ct. U.S. scope unless we: find plain definitional Cardoza-Fonseca, (1988) (quoting INS clearly congressional intent expressed 1207, 1221, 421, 446, 107 S.Ct. 480 U.S. Turkette, contrary, S.Ct. added). (1987)) We (emphasis L.Ed.2d 2527; that this is a “rare conclude language of the statute. plain examine §of 841’s application where a literal case” Lujan, 4 F.3d Phillips Petroleum Co. v. demonstrably at produce result terms “will Cir.1993). that Con- We assume of its drafters.” odds with the intentions ordinary expressed in the gress’ Enters., Ron Pair Fly, Park N meaning words it uses. at 1031. Inc., Fly, Park v. Dollar Inc. majority this is “rare concludes 658, 661-62, 83 L.Ed.2d §of application 841’s case” where a literal (1985). Thus, does not when the statute demonstrably at produce result terms will terms, “must be the terms particular define majori- Congress’ intentions. odds with Chapman, ordinary meaning.” given their therefore, ty, must demonstrate Con- 1925; see also U.S. at convey § 841 to its gress did not intend Sup- Operations v. Martin Marietta

Bartlett mixture or of “a meaning i.e., instead literal Cir.1994) Inc., port, amount containing a detectable of’ (“The their obliged give terms court is substance, must a controlled We possible.”). plain whenever § to really intended Congress that show meaning of the plain “full to the give effect” or substance con- “a mixture [usable] read by Congress. chosen words tabling a detectable amount of’ a controlled quantity fenced for total of usable support substance. To its Thus, contention that drug mixtures. to the extent the cir- the word “usable” should be read into the cuit court majority eases cited draw a Chapman’s majority cites dis- (marketable/unmarketable) usable/unusable legislative history § cussion of the to 841. distinction in interpreting § their read- “Chap- Specifically, majority reasons that ing is not in Chapman based or in accord man’s recognition Congress’ of ‘market-ori- clearly with expressed congressional intent.2 approach ented’ dictates that we not treat Chapman An examination of and its dis- drug they if unusable mixtures as were usa- cussion of the approach “market-oriented” Op. ble.” at 11. reveals the Court did not legislative find In Chapman, leg- the Court examined the history restricting plain meaning of history § islative 841 and concluded that § 841’s terms substance” to “us- Congress adopted a ap- “‘market-oriented’ drug able” majority mixtures. opinion The proach punishing drug trafficking.” identify this case fails to legislative history Chapman, at 1925. evidencing congressional such intent. In- noted, however, The Court that under the deed, Supreme Court noted in Chapman approach “market-oriented” adopted Con- after examining § legislative 841’s history gress total “the of what is distribut- that, under the approach, “market-oriented” ed, rather than the amount of drug Congress punish intended to drug traffickers involved, length is used to determine the of quantity” for the “total drugs distributed the sentence.” Id. (citing H.R.Rep. No. 99- “in they whatever form were found.” Id. (1986)) added). 1,11-12,17 pt. (emphasis added). (emphasis Chapman’s discussion of upon Based legislative its review of the histo- therefore, approach, “market-oriented” ry, Congress the Court concluded that in- fallacy demonstrates the majority’s “penalties drug tended trafficking to be Congress conclusion that intended to limit graduated according plain meaning of the terms “mixture or drugs they in whatever form were found— drug substance” to “usable” mixtures. The uncut, pure cut or impure, ready legislative history §to 841 underscores the ready wholesale or for distribution at the congressional expressed plain added). retail level.” (emphasis Thus, language punish of the statute to drug traf- recognized the Court Congress adopted that quantity” fickers for the “total drugs dis- approach the market-oriented because the tributed they “in whatever form found.” [are] reality drug-trafficking drugs is that are Id. Accordingly, Congress provided no re- often combined with other substances in a phrase strictions on the “mixture or sub- Congress mixture. punish drug intended to 841(b). 841(b). See stance” in possess large quantities offenders who Thus, drug severely. mixtures more the discussion in Neither 841’s Court, however, Congress, legislative nor gave any history Congress’ indi- “market- drug cation that offenders should approach be sen- oriented” contradicts the 2. reading seeks to buttress its drug could not have intended unusable mixtures by citing § 841 to other circuits that have punished drawn to be 841 because of the ab- applying § distinction in usable/unusable surd results that follow from such a conclusion. Acosta, (2d See United States v. See, Acosta, e.g., 963 F.2d at 554. 1992); Rodriguez, Cir. 999, United States v. Court, however, rejected the ar- 1992); Cir. United States v. Jen gument that "mixture or substance” should be (6th Cir.1991); nings, 945 F.2d Johnson, illogi- read to exclude carrier mediums to avoid States v. Cir. 1993); Chapman. Rolande-Gabriel, Chapman, cal results in United States v. Moreover, (11th Cir.1991). 111 S.Ct. at 1923-24. None of these cases, however, analysis language in Acosta and the other cite cases is flawed 841 or its legislative history expresses judiciary because it is not the Congress function of the plain concep- scope intended to limit the re-write definitional statutes fit our right sentencing poli- 841's terms tion of "mixture or substance” to what is the best or usable Instead, drug cy. Congress sentencing discrep- mixtures. these is aware of the cases limit the plain scope may sentencing of 841 to usable mixtures on ancies that follow from its grounds uniformity rectify discrepancies intended scheme and will those if it proportionality and therefore so chooses. First, is clear from congressional if intent § in this of interpretation restrictive simply apply the face of a the case. that intent and do not in accord with statute congression of no there is record Because Chevron, agency. of an reference the views plain defi the restrict intent to otherwise al 842-43, 104 at 2781-82. at S.Ct. 467 U.S. terms, apply the § scope 841’s nitional event, Moreover, any to com deference dictionary plain, their in accord with terms mentary promulgated at U.S. meanings. Chapman, 500 unwarranted because com is Commission Turkette, at 1925-26; 452 U.S. at S.Ct. mentary is not the construction Commission’s plain meaning 2527. Under 101 S.Ct. that it administers. See Chev of a statute methamphet “mixture,” and waste water ron, 104 S.Ct. at 2781-82 467 U.S. to blended “two substances amine constitute (court agency construction of stat defers to of one are dif particles gether so that the congressional it when ute that administers the other.” particles of among fused unclear). Commentary performs is 462, 111 at 1926 Chapman, 500 U.S. interprets guide it three functions: 921). Dictionary at English (quoting 9 Oxford (2) it application; explains their lines and methamphetamine there water and Waste warranting depar suggests circumstances or substance” for qualify as a “mixture fore (3) provides guidelines; and ture from particles of 841 because guidelines. background to the information among are diffused methamphetamine such, commentary is 1B1.7. As U.S.S.G. result, water. As particles of the waste interpretation of its agency’s own “akin to “mix kilograms of a possessed 32 Defendant States, legislative rules.” Stinson containing a detectable or substance ture 1913, 1919, 123 - U.S. -, -, 113 S.Ct. methamphetamine.” amount (1993). not, Commentary does subject 841(b)(l)(A)(viii). is therefore He however, interpret statutes. federal years mandatory minimum ten §to 841’s Thus, while 1B1.7. U.S.S.G. statutorily re imprisonment. Because respect binding with to authoritative and is greater than the is quired minimum sentence guide meaning application applicable sentence under maximum at -, lines, Stinson, 113 S.Ct. at sen range, Defendant must be meaning it is not authoritative as imprison years to a minimum ten tenced is therefore of a federal statute and entitled 5G1.1(b); Campbell, ment. no this court to deference at 175. F.2d Smith v. United interpretation. See 2050, 2055, - U.S. -, -, III. (1993) (dissent’s assumption that princi- applying time-honored Instead of sentencing guidelines are relevant to the focusing on ples construction criminal statute is federal intent, majority applies a Palacio, “dubious”); called the “con- method of construction novel (“[Ujnless (2d Cir.1993) the Sentenc on the sen- gruent” approach, which focuses construing its own author Commission Op. tencing intent. Un- commission’s agency ... its view of the substan ity as an “congruent” approach, the der unlikely meaning of a criminal statute is tive interprets the term “mixture or substance” deference.”), to any to be entitled de water in order to exclude waste - nied, sentencing guidelines commen- conform L.Ed.2d majority ignores con- tary. doing, the In so Second, majority’s interpretation of intent, is clear from the gressional which “congruent” under its essentially al- language plain canons of interpret approach ignores construc- settled Commission lows sense. Under the tion and defies common approach abdicates a federal statute. This rationale, “mixture or “say substance” judicial what the uniquely task (1 (Chapman) Madison, cases is,” one for LSD Marbury has law Cranch) (1803), methamphetamine meaning for and is and another L.Ed. views). (the Sentencing Commission’s eases respects. in several flawed construction, elementary Under maxims of one in LSD cases and another however, presume must that words “[w]e meaning in methamphetamine cases. It will more than once in used the same statute interesting be to see how “mixture or sub- meaning.” have the same Boise Cascade stance” will be defined in the six other sub- EPA, Corp. v. 841(b)(1)(A), sections of which deal with (9th Cir.1991) (citing Sutherland Stat. heroin, cocaine, PCP and other controlled 1984)). 46.05, §§ Const. 46.06 ed. substances. majority points nothing its (vii). 841(b)(l)(A)(i)-(iv), (vi), §§ legislative history, interpretive or case law to Because the district by failing court erred Congress indicate that intended the words to sentence Defendant ato minimum of ten “mixture or substance” have different defini- years imprisonment in accord with appli- tions in different subsections of 841. In- statutory mandatory cable minimum under deed, scheme, an eclectic definitional where- 841(b)(l)(A)(viii), I would I reverse. there- phrase an identical means what the dictio- respectfully fore dissent. nary says in one section of 841 and what guideline commentary another, says in can- Congress

not be what intended.

Third, majority’s central focus on the

“congruent” approach and com- in interpreting

mission intent instead

of on principles statutory settled contrac- congressional implicates

tion and sepa- powers

ration of Principles concerns. courts, construction ensure that the RIOS, Plaintiff-Appellant, Gloria in exercising unique their role to declare means, properly upon what the law focus ascertaining BIGLER, Congress. the intent of F. Con- Calvin M.D. and Lauren A. trary majority’s approach, Welch, M.D., it is not the Defendants-Appellees. will of the Commission—“an in- No. 94-3240. dependent commission in the Judicial Branch 991(a) States,” of the United 28 U.S.C. —or Appeals, United States Court of court, paramount impor- that holds Tenth Circuit. statutory interpretation. Instead, tance in it Oct. is the Congress intent and will of demo- —the body representing cratic peo- the will of the ple By applying principles counts. —that statutory interpretation, we ensure that we

interpret apply statutes in accord with intent, regardless of what we

think say, the statutes should prop- and thus

erly respect unique roles of system.

the federal in our courts trilateral sum, by following applying principles statutory interpre-

time-honored

tation, would reach the same i.e., right apply would result —

plain meaning of “mixture or substance” to subject

the facts and conclude Defendant is years imprison-

to a minimum ten Instead, majority disregards

ment. Su-

preme and contravenes

principles construction. The net

effect of the decision results in the

phrase substance” in 841 hav-

Case Details

Case Name: United States v. Larry D. Richards

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 11, 1995

Citation: 67 F.3d 1531

Docket Number: 94-4052

Court Abbreviation: 10th Cir.