UNITED STATES of America, Appellee, v. Robert James STONEKING, Appellant.
No. 94-1236.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 6, 1994. Decided July 3, 1995.
48 F.3d 1044 | 60 F.3d 399
3. Other Issues. Doyle further argues that the district court erred in refusing to instruct the jury on entrapment as a defense to the drug trafficking charges, and in refusing to grant a mistrial when the prosecutor said in rebuttal closing argument that entrapment was not an issue in the case. Saleem further argues that there was a prejudicial variance because the indictment charged a thirty-day conspiracy and the evidence showed Saleem participating only the last day; that the evidence of guilt was insufficient as a matter of law; and that he should have been granted a two-point sentencing reduction because he played a minor role in the offenses. In a pro se supplemental brief, Saleem also argues that he was the victim of an unlawful warrantless arrest; that law enforcement officers testified falsely and inconsistently about details of events at the Burger King restaurant, and the prosecution knowingly used that false testimony; that the prosecution failed to disclose the non-incriminating results of some searches; that the prosecutor argued unfairly in closing; that the prosecution inaccurately edited a pretrial transcript in opposing Saleem‘s motion to set aside the jury verdict; and that he was not present at his arraignment in violation of
The judgments of the district court are affirmed.
McMILLIAN, Circuit Judge.
Robert James Stoneking appeals from a final order entered in the District Court1 for the Southern District of Iowa denying his motion to reduce his sentence. A panel of this court reversed and remanded for resentencing. On the court‘s own motion, the case was reheard en banc following supplemental briefing. For the reasons discussed below, we affirm the order of the district court.
The following statement of background facts is taken in large part from the panel opinion which was vacated by the order granting rehearing en banc. Stoneking was indicted on four counts of distribution of lysergic acid diethylamide (LSD), a Schedule I controlled substance. Under a plea agreement, he entered a plea of guilty to one count of conspiracy to distribute LSD in violation of
Dean Stowers, Des Moines, IA, argued, for appellant.
Lester A. Paff, Asst. U.S. Atty., Des Moines, IA, argued, for appellee.
Later, on motions of the government, the district court reduced Stoneking‘s sentence
Still later, the guideline that determines the calculation of the amount of LSD involved in a drug offense was modified by Amendment 488. See
On its own motion, the district court requested supplemental briefing from the parties on whether a further reduction in Stoneking‘s sentence would be appropriate in light of the amended guideline. Information from the probation office showed that Stoneking had been responsible for distribution of 1773 dosage units of LSD. Under the amended guideline, the number of dosage units is multiplied by 0.4 mg per dose, resulting in a recalculated weight of 709 mgs. The district court thus determined that recalculation of the sentence under the amended guideline would result in a guideline sentencing range of 33-41 months (offense level 20 and criminal history category I). After consideration of the arguments of the parties, the district court declined to reduce Stoneking‘s sentence through recalculation of the weight of the LSD under the amended guideline. The district court found that “since [Stoneking] would have been subject to the statutory [mandatory] minimum sentence contained in
For reversal Stoneking argues the district court erred in calculating the weight of LSD on the basis of the LSD and carrier medium, instead of using the per dose weight set forth in the amended guideline, to determine the applicability of a mandatory minimum sentence. He argues the amended guideline should apply to determine the weight of LSD for both the applicability of a minimum mandatory sentence and the applicable guideline sentencing range. In other words, Stoneking argues a single or unitary method should be used to calculate the weight of LSD for sentencing purposes, that is, the per dose weight set forth in the amended guideline, and not a “dual” method, that is, one to determine the applicability of a minimum mandatory sentence and another to determine the applicable guideline sentencing range. He argues that the dual method is so arbitrary and capricious that it violates due process.
As noted above,
The guidelines themselves provide the answer to the question of how to reconcile the amended guideline and the mandatory minimum sentence. In general, when a statute and a guideline conflict, the statute controls. The guidelines specifically address the conflict between a guideline sentencing range and a mandatory minimum sentence and provide that “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable Guideline range, the statutorily required minimum sentence shall be the Guideline sentence.”
Even if the commentary did not state that it does not purport to override Chapman, we do not think the amended guideline could do so. The Sentencing Commission cannot override Congress or the Supreme Court‘s decision in Chapman to establish new mandatory minimum sentences by amending the guidelines. See United States v. Neal, 46 F.3d at 1409; United States v. Boot, 25 F.3d 52, 55 (1st Cir. 1994).
Stoneking also argues the dual weight method creates an arbitrary and capricious distinction between drug offenders and violates due process. We disagree. The dual weight method does not violate due process because it increases the penalty for those persons who are involved in greater quanti
In sum, the district court did not err in calculating the weight of LSD on the basis of the LSD and carrier medium, instead of using the per dose weight set forth in the amended guideline, to determine the applicability of a mandatory minimum sentence. The district court correctly sentenced Stoneking to the mandatory minimum sentence.2
Stoneking also argues the district court should have granted him a 3-point reduction for acceptance of responsibility under Amendment 459, Guideline
Accordingly, the order of the district court is affirmed.
BEAM, Circuit Judge, with whom FAGG, BOWMAN and WOLLMAN, Circuit Judges, join, dissenting.
I dissent. To find that weights of LSD must be calculated differently under the
mandatory minimum statute than under the Sentencing Guidelines not only defies rational analysis but also thwarts the avowed Congressional goal of sentencing uniformity. Such a result is not compelled by Chapman v. United States, 500 U.S. 453, 468 (1991), nor intended by Congress.
The court‘s opinion holds that Guideline Amendment 488 and
Following the lead of other circuits that have similarly erred, the court accepts the premise that Chapman requires the entire carrier medium, whether actually impregnated with LSD or not, to be weighed. Supra at 401; see also United States v. Neal, 46 F.3d 1405, 1408-09 (7th Cir.) (en banc), cert. granted, 63 U.S.L.W. 3898 (U.S. June 20, 1995).1 To the contrary, Chapman requires only that the entire “mixture” be weighed. Chapman, 500 U.S. at 459. The entire carrier medium is not necessarily part of the offending “mixture.” Our task, aided by the expertise of the Sentencing Commission, should be to refine the definition of “mixture” to comply with the Supreme Court‘s exhortation that some weight of a carrier of LSD be taken into account at sentencing.2 The real issue is not whether the amendment and the statute conflict, for
they do not, but whether the guideline approach is prohibited by the mandatory minimum sentencing statute and Chapman. It is not.
I. BACKGROUND
The mandatory minimum statute in issue imposes five-year and ten-year minimum sentences for the manufacture, distribution or possession with intent to manufacture or distribute, ten grams and one gram, respectively, of a “mixture or substance” containing a detectable amount of lysergic acid diethylamide (LSD).
The Background Notes to Section 2D1.1 show that guideline sentences are designed to match mandatory minimum sentences:
“[t]he base offense levels in § 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 [the mandatory minimum statute] or are proportional to the levels established by statute. . . . Levels 32 [approximately 10 years] and 26 [approximately 5 years] in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act [the mandatory minimum statute]; however, further refinement of drug amounts is essential to provide a logical sentencing structure for drug offenses.”
Before promulgation of either the amendment now in issue, or the Chapman decision which inspired it, the Guidelines stated: “Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.”
In Chapman, the issue presented was whether the phrase “mixture or substance” meant the weight of the LSD plus that of its carrier or simply that of the pure drug. 500 U.S. at 458-59. The Supreme Court held that “mixture” meant the LSD and the material that it is “absorbed in,” “mixed with,” or “bonded to.” Id. at 462-63. The Court stated that, in the case of blotter paper, “[t]he LSD is diffused among the fibers of the paper,” so “reading ‘mixture’ to include blotter paper impregnated with LSD crystals is a reasonable construction of
In response to Chapman, the Sentencing Commission amended the Guidelines.4
The Background notes explain the rationale behind the amendments:
Because the weights of LSD carrier media vary widely and typically far exceed the weight of the controlled substance itself, the Commission has determined that basing offense levels on the entire weight of the LSD and carrier medium would produce unwarranted disparity among offenses involving the same quantity of actual LSD (but different carrier weights), as well as sentences disproportionate to those for other, more dangerous controlled substances, such as PCP. Consequently, in cases involving LSD contained in a carrier medium, the Commission has established a weight per dose of 0.4 milligram[s] for purposes of determining the base offense level.
The dosage weight of LSD selected exceeds the Drug Enforcement Administration‘s standard dosage unit for LSD of 0.05 milligram[s] (i.e., the quantity of actual LSD per dose) in order to assign some weight to the carrier medium. Because LSD typically is marketed and consumed orally on a carrier medium, the inclusion of some weight attributable to the carrier medium recognizes (A) that offense levels for most other controlled substances are based upon the weight of the mixture containing the controlled substance without regard to purity, and (B) the decision in Chapman v. United States, 500 U.S. 453 (1991) (holding that the term “mixture or substance” in
Thus, as specifically stated in the last sentence of the Background note, when read in context, the amendment was designed to be faithful to Chapman and sentencing uniformity. Unfortunately, the court‘s opinion chooses to misread this final sentence as an admission by the Commission that the amended guideline definition of mixture has no application to the calculation of a mandatory minimum sentence.
II. DISCUSSION
While statutes, the Guidelines, and case law are involved here, the analysis need not be difficult. The straightforward task of sentencing an LSD offender under both the mandatory minimum statute and the Guidelines, and the harmonization of the two, can be achieved by accurately analyzing Chapman. However, examination of the intentions of both Congress and the Sentencing Commission, albeit an unnecessary exercise, lends further support to the application of the amended guideline to Stoneking‘s sentence. This approach maintains a “match” between a guideline sentence and a mandatory minimum sentence, and avoids a constitutional issue.7
A. Chapman and the Mandatory Minimum Statute
My analysis begins with the initial and undisputed premise that when a statute and a guideline conflict, the statute controls.8 See, e.g.,
At the time of the Chapman decision, neither the mandatory minimum statute nor the Guidelines defined “mixture.” The Supreme Court therefore resorted to the dictionary definition of the term.9 Chapman, 500 U.S.
“a portion of matter consisting of two or more components that do not bear a fixed proportion to one another and that however thoroughly commingled are regarded as retaining a separate existence.” A “mixture” may also consist of two substances blended together so that the particles of one are diffused among the particles of the other.
Id. (citations omitted) (quoting Webster‘s Third New Int‘l Dictionary 1449 (1986)).
Thus, the Supreme Court‘s definition of “mixture” depends on the LSD being “commingled” with its carrier medium (most commonly paper or sugar cubes) and “blended together so that the particles of one are diffused among the particles of the other.” Id. The Court dispensed with the “nonsense” of including the weight of a glass jar containing the LSD or a car in which it is transported. Id. at 462-63. There, “[t]he drug is clearly not mixed with a glass vial or automobile; nor has the drug chemically bonded with the vial or car.” Id. at 463.
Under this definition, only the part of the carrier medium into which the pure drug is commingled, blended or diffused constitutes the “mixture.” Thus, weighing the entire mixture does not dictate weighing the entire carrier medium. For example, if a drop of LSD were deposited onto one corner of a sheet of paper, the opposite corner would not contain any particles of the pure drug, so would not be part of the “mixture.” The Supreme Court said only that, to satisfy the “market-based approach” adopted by the Guidelines, some of the carrier, i.e., the “mixture,” must be weighed. Id. at 459, 461, 468.
By rejecting the “nonsense” of weighing packaging materials (such as the vial) and by acknowledging that “hypothetical cases can be imagined involving very heavy carriers and very little LSD,” the Supreme Court implied that there is a point at which a line must be drawn. Id. at 463, 466. It remains the function of a sentencing judge (aided by the Guidelines) to draw that line and make a factual determination on drug quantity. United States v. Olderbak, 961 F.2d 756, 763 (8th Cir.), cert. denied, 506 U.S. 959 (1992). Inherent in that function is the duty to determine what combination of pure drug and carrier medium constitutes a “mixture.”10
What Amendment 488 actually does is establish a standard uniform amount of carrier that judges can attribute as “mixed” with the drug. Sentencing judges are entitled to rely on the expertise of the Sentencing Commission in setting such a uniform weight in much
B. Congressional Intent
In addition to ascribing an unnecessarily broad meaning to Chapman, the court deduces curious intentions on the part of the Sentencing Commission and Congress. The court concludes that the Sentencing Commission intended, and Congress agreed, that the determination of whether a mandatory minimum sentence applies would be made without reference to the weight established by the new guideline. It arrives at this conclusion by depending, with no heed to context, on the isolated caveat in the guideline commentary that “this approach does not override the applicability of ‘mixture or substance’ for the purpose of applying any mandatory minimum sentence.”
That sentence makes a lot more sense when read in the context of the entire explanation given in the paragraphs above.11 Read in context, the commentary summarizes the goals the Commission sought to accomplish through the amendment: (1) to harmonize offense levels for different controlled substances; (2) to lessen the “undue influence” that different carrier weights have on the offense level; and (3) to take into account Chapman‘s interpretation of the terms “mixture or substance” when applying a mandatory minimum sentence. See Neal, 46 F.3d at 1414 (en banc) (J. Ripple, dissenting).
There is clearly much more to Amendment 488 than the single sentence relied on by the court. The entire paragraph of commentary, combined with other contemporaneous amendments enacted for other drugs,12 subsequent amendments,13 and proposed amendments,14 makes it clear that while the Commission meant to follow Chapman, the Commission also intended to standardize the amount of carrier that can be viewed as “mixed” with pure LSD. As discussed in the commentary, the Commission selected a weight value eight times the actual value of the pure LSD in express recognition of the impact of Chapman on weight calculation.
To assume the opposite is, at best, uncharitable—the Commission, whose mission it is to promote uniformity and fairness in sentencing would not intend to effectuate such a nonuniform and unfair result. See Muschik, 49 F.3d at 518. It is similarly unsound to ascribe to Congress the intention of singling out LSD drug offenders for treatment dis-
The court reaches its result because it perceives itself powerless to avoid absurdity. “Without more—and there is no more—we conclude that Congress simply acquiesced in the restrictive reach of [the amendment].” United States v. Boot, 25 F.3d 52, 55 (1st Cir. 1994). There is no need for Congress to speak anew. It is only logical to assume that, in allowing the amendment to go into effect without change, Congress agreed with its obvious underlying animus: that the Guidelines dovetail with the mandatory minimum statute. Such a refinement of the sentencing scheme through the action of the Commission, with the knowledge and consent of Congress, is an expected and necessary element of the process contemplated by the present sentencing system. Muschik, 49 F.3d at 517-18. In “charging the Commission ‘periodically to review and revise’ the Guidelines, Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest.” Braxton v. United States, 500 U.S. 344, 348 (1991) (quoting
III. CONCLUSION
Amendment 488 is a principled response to the holding in Chapman. The amendment clarifies the extent of carrier medium that we ought to consider “mixed” with the pure drug. Amendment 488, Section 841 and Chapman can and should be reconciled.
The amendment satisfies Chapman‘s requirements while promoting the sentencing uniformity Congress sought to achieve when it authorized the Sentencing Guidelines. The amended guideline, in conjunction with Chapman, eliminates the disparities in sentencing between drug traffickers who use blotter paper as a medium and those who use sugar cubes as a medium and between those apprehended with the drugs in hand and those who are convicted on dosage and other evidence. The amendment also maintains the “market-oriented” approach under which the total quantity of drugs distributed, rather than the amount of pure drug sold, is used to determine the length of the sentence.
Using two different methods of measurement is neither required by Chapman nor sensible. Accordingly, Stoneking‘s sentence should be adjusted according to the method of measurement delineated in Amendment 488.
Notes
Because the drug statutes and the Guidelines are heavily reliant on chemical formulae and chemistry terminology, we should properly refer to chemical definitions as “terms of art.” See TCI, 11 F.3d at 814-15 (applying a term of art rather than general definition).
A “substance” is defined as:
[a]ny chemical element or compound. All substances are characterized by a unique and identical constitution and are thus homogeneous. “A material of which every part is like every other part is said to be homogeneous and is called a substance.”
Hawley‘s Condensed Chemical Dictionary, 1098 (12th ed. 1993) (quoting Black & Conant, Practical Chemistry). A substance is clearly a more narrow classification than a “mixture,” which is defined as:
(mix). A heterogeneous association of substances which cannot be represented by a chemical formula. Its components may or may not be uniformly dispersed and can usually be separated by mechanical means.
Id. at 788.
The logical statutory construction of “mixture or substance” in reference to most drugs is that “substance” refers to the pure form of the drug and “mixture” refers to the adulterated or “cut” form of the drug. Thus, as the Supreme Court implicitly noted, drug-plus-carrier can rationally fit only within the definition of “mixture.”