United States v. Lowden , 36 F.3d 1090 ( 1994 )

36 F.3d 1090

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
Aaron S. LOWDEN, Defendant, Appellant.

No. 94-1088

United States Court of Appeals,
First Circuit.

September 13, 1994

Appeal from the United States District Court for the District of Maine [Hon. Gene Carter, U.S. District Judge ]

Arlene C. Halliday on brief for appellant.

Jay P. McCloskey, United States Attorney, and Michael M. DuBose, Assistant United States Attorney, on brief for appellee.

D.Me.

VACATED AND REMANDED.

Before Cyr, Boudin and Stahl, Circuit Judges.

Per Curiam.

1

In light of the government's concession that the weight of "liquid LSD" should have been recalculated in accordance with the 1993 amendment to U.S.S.G. Sec. 2D1.1(c), the amended sentence is hereby vacated and the case remanded for resentencing. See Loc. R. 27.1. The parties cannot by 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.

2

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 States v. Jordan, 842 F. Supp. 1031, 1033-34 (M.D. Tenn. 1994);1 U.S.S.G. Sec. 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 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.

3

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.

4

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

1

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