United States v. Boot ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2317
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER LEE BOOT,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court, issued June 7, 1994, is amended as
follows:
Page 4, n.1, last line should read: . . . comment. (backg'd.).
Page 7, l.5 from bottom should read: . . . comment. (backg'd.).
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2317
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER LEE BOOT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Cyr, Circuit Judge.
Richard S. Emerson, Jr., with whom Childs, Emerson, Rundlett,
Fifield & Childs was on brief for appellant.
Michael M. DuBose, Assistant United States Attorney, with whom
Jay P. McCloskey, United States Attorney, was on brief for appellee.
June 7, 1994
CYR, Circuit Judge. After the district court reduced
CYR Circuit Judge
its original sentence in response to a recent amendment to the
Sentencing Guidelines, see United States Sentencing Commission,
Guidelines Manual 2D1.1 (Nov. 1993), defendant Christopher Lee
Boot brought the present appeal challenging the court's concur-
rent refusal to reduce his prison term below the minimum mandated
by statute. Finding no error, we affirm.
I
BACKGROUND
Appellant Boot pled guilty to distributing 11.6 grams
of lysergic acid diethylamide (LSD) within 1000 feet of a school.
See 21 U.S.C. 841(a)(1); 860(a) (1993). For purposes of
determining both the statutory mandatory minimum sentence ("MMS"-
), see id. 841(b)(1)(B)(v) (prescribing five-year MMS for
distributing "1 gram or more of a mixture or substance containing
a detectable amount" of LSD), and the applicable Guidelines
sentencing range (GSR), see U.S.S.G. 2D1.1(c) (Nov. 1991), the
district court included the entire weight of the carrier medium
used to distribute the 599 doses of LSD. See Chapman v. United
States, 500 U.S. 453, 468 (1991) (broadly construing "mixture or
substance," in 21 U.S.C. 841(b)(1)(B)(v), as "requir[ing] the
weight of the carrier medium to be included"); U.S.S.G. 2D1.1,
footnote * (Nov. 1991) ("Unless otherwise specified, the weight
of a controlled substance set forth in the [Drug Quantity Table]
3
refers to the entire weight of any mixture or substance contain-
ing a detectable amount of the controlled substance."); id.,comment. (backg'd.). (n.1) (Nov. 1991) ("'Mixture or substance'
as used in this guideline has the same meaning as in 21 U.S.C.
841."). As a result, the 121-month prison term originally
imposed under the Guidelines (BOL: 32; CHC: I; GSR: 121-151
months) trumped the five-year MMS required under 21 U.S.C.
841(b)(1)(B)(v) for distributing one gram or more of LSD. See
U.S.S.G. 5G1.1(c).
Effective November 1993, however, the Sentencing
Commission amended U.S.S.G. 2D1.1 ("Amendment 488"), see 28
U.S.C. 994(p) (empowering Commission to promulgate amendments
to U.S.S.G., subject only to express congressional "veto"), by
prescribing a somewhat less stringent (0.4 milligram "per dose")
formula for calculating LSD quantity than the regime upheld in
Chapman.1 The Commission has ordained that its new 0.4 milli-
1The Commission spelled out the competing policy goals
addressed by Amendment 488 in new application note 18:
Because the weights of LSD carrier media vary
widely and typically far exceed the weight of the
controlled substance itself, the Commission has deter-
mined 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
LSD (but different carrier weights), as well as sen-
tences disproportionate to those for other, more dan-
gerous controlled substances, such as PCP. Consequent-
ly, in cases involving LSD contained in a carrier
medium, the Commission has established a weight per
dose of 0.4 milligram for purposes of determining the
base offense level.
4
gram per-dose formula may receive retroactive application in
appropriate circumstances to effect reductions in sentences
previously imposed. See U.S.S.G. 1B1.10(a), (d) (1993); 18
U.S.C. 3582(c)(2); United States v. Holmes, 13 F.3d 1217, 1222
(8th Cir. 1994) (district courts have discretion to apply Amend-
ment 488 retroactively in appropriate circumstances).2
The dosage weight of LSD selected exceeds the Drug
Enforcement Administration's standard dosage unit for
LSD of 0.05 milligram (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, 111 S. Ct. 1919 (1991) (holding that the term
"mixture or substance" in 21 U.S.C. 841(b)(1) in-
cludes the carrier medium in which LSD is absorbed).
At the same time, the weight per dose selected is less
than the weight per dose that would equate the offense
level for LSD on a carrier medium with that for the
same number of doses of PCP, a controlled substance
that comparative assessments indicate is more likely to
induce violent acts and ancillary crime than is LSD.
(Treating LSD on a carrier medium as weighing 0.5
milligram per dose would produce offense levels equiva-
lent to those for PCP.) Thus, the approach decided
upon by the Commission will harmonize offense levels
for LSD offenses with those for other controlled sub-
stances and avoid any undue influence of varied carrier
weight on the applicable offense level.
U.S.S.G. 2D1.1, comment. (n.18).
2Section 3582 provides, in pertinent part:
The court may not modify a term of imprisonment once it
has been imposed except that
....
5
Absent the MMS complication posed by 21 U.S.C.
841(b)(1)(B)(v), Amendment 488 would have resulted in a dramat-
ic decrease in appellant's prison sentence, since it sliced the
GSR from 121-151 months (11.6 grams of LSD) to 27-33 months
(0.239 gram). Due to 21 U.S.C. 841(b)(1)(B)(v), however, the
district court refused to reduce Boot's prison term below the
five-year MMS. See U.S.S.G 5G1.1(b) ("Where a statutorily
required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum
sentence shall be the guidelines range.").
II
DISCUSSION
The long and the short of the district court ruling was
that the LSD quantity calculation is controlled by Chapman for
MMS purposes and by Amendment 488 for GSR purposes. Boot coun-
(2) in the case of a defendant who has been
sentenced to a term of imprisonment based on a sentenc-
ing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(o),
upon motion of the defendant or the Director of the
Bureau of Prisons, or on its own motion, the court may
reduce the term of imprisonment, after considering the
factors set forth in section 3553(a) to the extent that
they are applicable, if such reduction is consistent
with applicable policy statements issued by the Sen-
tencing Commission.
18 U.S.C. 3582(c)(2).
6
ters that by permitting Amendment 488 to take effect without
modification in November 1993, Congress evinced its clear inten-
tion to establish a unitary per-dose "mixture and substance"
formula for calculating LSD weight in MMS and GSR sentencings
alike. Thus, unless Amendment 488 is to be converted into an
instrument for promoting sentencing disparity, congressional
acquiescence in its adoption must be considered tantamount to
legislative displacement of the Chapman regime. We do not
agree.3
Although the precise issue presented is one of first
impression in the courts of appeals,4 the Supreme Court in
Chapman concluded that Congress intended, at the time it enacted
3Contrary to Boot's contention, Amendment 488, as presently
interpreted, eliminates considerable past and future sentencing
disparity in LSD cases, see U.S.S.G. 2D1.1, comment. (n.18), by
substituting, in all non-MMS cases, a uniform 0.4 milligram per-
dose formula for calculating the LSD "mixture or substance"
weight in place of the entire actual weight of the LSD and its
carrier medium. See supra note 1. The very substantial 61-month
reduction in Boot's sentence underscores the point. Further
efforts at reducing sentencing disparity in LSD cases must await
improved coordination between Amendment 488 and its preemptive
counterpart the MMS regime long recognized as an "ad hoc
deviation" from the unitary policy goals of the Sentencing
Guidelines, United States v. McFadden, 13 F.3d 463, 468 (1994)
(Breyer, C.J., dissenting).
4No district court has yet adopted the unitary approach
advocated by Boot. See United States v. Reddick, F. Supp.
, (W.D.N.Y. 1994) [1994 U.S. Dist. LEXIS 5978, at * 15
(W.D.N.Y. Apr. 20, 1994)]; United States v. Neal, F. Supp.
, (C.D. Ill. 1994) [1994 U.S. Dist. LEXIS 4101, at * 3-4
(C.D. Ill. Mar. 29, 1994)]; Woolston v. United States, 840 F.
Supp. 1, (D. Me. 1993). Cf. United States v. Tucker,
F.3d , (7th Cir. 1994) [1994 U.S. App. LEXIS 5408, at * 6-
7 (7th Cir. Mar. 23, 1994)].
7
the MMS statute in 1986, see Anti-Drug Abuse Act of 1986, Pub. L.
99-570, 100 Stat. 3207 (1986), that the pivotal term "mixture or
substance containing a detectable amount" of controlled substance
required the sentencing court to include the entire weight of the
LSD and its carrier medium. Chapman, 500 U.S. at 461 ("Congress
adopted a 'market-oriented' approach to punishing drug traffick-
ing," and intended courts to sentence defendants "according to
the weight of the drugs in whatever form they were found cut
or uncut, pure or impure, ready for wholesale or ready for
distribution at the retail level.").
III
CONCLUSION
Until the Supreme Court or the Congress revisits the
issue, Chapman governs the meaning of the term "mixture or
substance" in 21 U.S.C. 841(b)(1)(B)(v), as the Commission
itself acknowledged when it promulgated Amendment 488 in November
1993: "Nonetheless, this [new Guidelines] approach does not
override the applicability of 'mixture or substance' for the
purpose of applying any mandatory minimum sentence (see Chapman;
5G1.1(b))." U.S.S.G. 2D1.1, comment. (backg'd.). (n.18).
Without more and there is no more we conclude that Con-
gress simply acquiesced in the restrictive reach of Amendment 488
duly noted by the Commission in application note 18. Id.8
Affirmed.
9