United States v. Cotton ( 1994 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


                                                     
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        No. 93-1695

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                              BRIAN COTTON a/k/a "EARL",

                                      Appellant.

                                                     
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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Frank H. Freedman, U.S. District Judge]
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                                        Before

                                Selya, Cyr and Boudin,

                                   Circuit Judges.
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             Harry L. Miles for appellant.
             ______________
             Kevin O'Regan,  Assistant United  States Attorney,  with whom  A.
             _____________                                                  __
        John Pappalardo, United States Attorney, was on brief for appellee.
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                                   January 28, 1994
                                                     
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                    CYR, Circuit Judge.   Appellant was sentenced  pursuant
                    CYR, Circuit Judge.
                         _____________

          to  U.S.S.G.   2D1.1(c)  and  its  accompanying Footnote*,  which

          provide  that the entire weight  of a methamphetamine mixture and

          the net weight  of the pure methamphetamine in the mixture are to

          be determined,  and the court  is to use whichever  weight yields

          the greater sentence.  Appellant claims  that Footnote* should be

          disregarded in favor of the "market-oriented" approach supposedly

          approved  in Chapman v.  United States, ___ U.S.  ___, 111 S. Ct.
                       _______     _____________

          1919 (1991), for  use in all  drug-related sentencings, based  on

          the mixture weight, i.e., the total  product to be marketed.  The
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          "either/or" approach under U.S.S.G.   2D1.1(c)  and its Footnote*

          is       directly       patterned        on       21       U.S.C.

            841(b)(1)(A)(viii),(B)(viii).    Appellant concedes  that  this

          claim is effectively precluded  by our decision in United  States
                                                             ______________

          v. Stoner,  927 F.2d  45, 47 (1st  Cir.), cert. denied,  ___ U.S.
             ______                                 ____  ______

          ___, 112 S.  Ct. 129 (1991), which upheld  the "either/or" provi-

          sion in 21 U.S.C.   841(b)(1)(B)(viii),  but urges that we recon-

          sider Stoner in light of Chapman.
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                    Appellant overlooks  the  fact that  Congress  has  not

          adopted a unitary approach to drug-crime punishment but  an array

          of distinctive  sentencing  schemes  for  various  categories  of

          drugs.   See 21  U.S.C.   841(b).   Indeed, the  Court in Chapman
                   ___                                              _______

          specifically  adverted to  the  "either/or" sentencing  treatment

          prescribed in methamphetamine (and PCP) cases, and concluded that

          "Congress knew  how to indicate that the  weight of the pure drug

          was to be used to determine  the sentence, and did not make  that


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          distinction with  respect to LSD."   Chapman, 111 S.  Ct. at 1924
                      ____  _______ __ ___     _______

          (emphasis  added).    The  "market-oriented"  approach  appellant

          infers from  Chapman would  blunt the power  of Congress  to pre-
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          scribe criminal sanctions and frustrate its mandate  in 21 U.S.C.

            841(b)(1)(A)(iv),(viii) &  (B)(iv),(viii), as well  as U.S.S.G.

            2D1.1(c) and the plain language of Footnote*.  See id. at 1926-
                                                           ___ ___

          28  (upholding legislative power to establish distinct sentencing

          schemes for different  drugs).  We therefore  reaffirm Stoner and
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          affirm the sentence imposed by the district court.1

                    Affirmed.
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               1Appellant's remaining  claim  is that  the  district  court
          erred in  not departing downward  based on the  "unusual" circum-
          stance that he  was sentenced in accordance  with U.S.S.G.   2D1-
          .1(c) and Footnote*.   Assuming  we have  jurisdiction, but  see,
                                                                  ___  ___
          e.g., United States v. Tucker, 892 F.2d 8, 10-11 (1st Cir. 1989),
          ____  _____________    ______
          mere imposition  of sentence  in accordance  with the  applicable
          guidelines does not constitute an "unusual" circumstance warrant-
          ing departure, see United States  v. Rivera, 994 F.2d 942, 949-52
                         ___ _____________     ______
          (1st Cir. 1993).

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