United States v. Lowden ( 1994 )

USCA1 Opinion

        September 13, 1994      [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 94-1088

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   AARON S. LOWDEN,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
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                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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            Arlene C. Halliday on brief for appellant.
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            Jay P. McCloskey,  United States Attorney, and Michael M.  DuBose,
            ________________                               __________________
        Assistant United States Attorney, on brief for appellee.


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                 Per  Curiam.   In light  of the  government's concession
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            that the weight of "liquid LSD" should have been recalculated

            in accordance with the 1993 amendment to U.S.S.G.   2D1.1(c),

            the amended sentence is hereby vacated and the case  remanded

            for resentencing.  See Loc. R.  27.1.  The parties cannot  by
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            agreement  create error where none exists  but we agree that,

            at least on the surface, the commentary arguably contemplates

            some adjustment where liquid LSD is involved.

                 The government requests that we take this opportunity to

            set forth  the proper methodology for  calculating the weight

            of liquid LSD  under the sentencing guidelines.   For several

            reasons, we think such a step would be premature.  The matter

            was never presented to the district court (due in part to the

            different position advanced by  the government below) and has

            not been fully  addressed in this  court (due in part  to the

            intervening motion to withdraw submitted by defense counsel).

            At  least at  first glance,  several contrasting  methods for

            resolving  the issue  appear  plausible.   See, e.g.,  United
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            States  v.  Jordan, 842  F. Supp.  1031, 1033-34  (M.D. Tenn.
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            1994);1 U.S.S.G.    2D1.1(c), comment. (n.18).   Depending on

            the findings  reached by  the district  court on  remand, the

            possible sentencing  ranges or sentences may  each fall short

            of  the  applicable  five-year  mandatory  minimum--rendering


                                
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            1.  This case  was  not cited  by  appellant and  we  commend
            government counsel for calling it to the court's attention.

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            resolution of the issue unnecessary.  And defendant will have

            new  counsel on  remand.   For  these  reasons, we  think  it

            preferable to have  the district court address  the matter in

            the first instance, on the basis of all arguments the parties

            deem pertinent. 

                 The  motion  of  defendant's   counsel  to  withdraw  is

            allowed.   The motion for appointment  of replacement counsel

            is denied  without prejudice;  defendant is directed  to file

            such a motion  with the  district court.   As defendant  will

            soon  have been  incarcerated  for five  years--the mandatory

            minimum--we urge the district  court to address these matters

            as promptly as possible. 

                 The amended  sentence is  vacated and the  case remanded
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            for  resentencing.  The motion  to withdraw is  allowed.  The
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            motion for appointment of counsel is denied without prejudice
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            to its submission to the district court. 
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