United States v. Hanlin ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
2-23-1995
USA v Hanlin
Precedential or Non-Precedential:
Docket 94-3498
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"USA v Hanlin" (1995). 1995 Decisions. Paper 59.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-3498
UNITED STATES OF AMERICA
v.
PATRICK HANLIN,
COURTLY JAY MULLER,
Patrick Hanlin,
Appellant
Appeal from United States District Court
for the Western District of Pennsylvania
(D.C. No. 90-cr-00006-01E)
Argued on January 30, 1995
Before: SCIRICA, ROTH AND SAROKIN, Circuit Judges
(Opinion Filed February 23, 1995)
William P. Weichler, Esquire (Argued)
Ambrose, Friedman & Weichler
319 West 8th Street
Erie, PA 16502-1495
Attorney for Appellant
Frederick W. Thieman
United States Attorney
Bonnie R. Schlueter (Argued)
Assistant U.S. Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
ROTH, Circuit Judge:
Patrick Hanlin ("Hanlin") appeals the district
court's denial of his motion for a reduction in sentence. For
the reasons stated herein, the district court's judgment is
affirmed.
I.
On February 27, 1990, a jury in the Western
District of Pennsylvania convicted Hanlin of: (1) conspiracy to
distribute and possession with intent to distribute LSD, in
violation of 21 U.S.C. § 846; and (2) possession with intent to
distribute in excess of 10 grams of LSD, in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(A)(v). Hanlin's offense
involved 24.448 grams of a blotter paper/LSD mixture or, as
alternatively quantified, 3354 dosage units of LSD. At his
original sentencing, the district court determined that the
proper weight of the LSD for sentencing purposes was the weight
of the pure LSD (3354 LSD dosage units x .05 milligrams per
dosage unit1 = 167.7 mgs of LSD) rather than the combined weight
1 The Drug Enforcement Administration has determined that
the standard dosage unit of pure LSD is 0.05 mgs per dose.
U.S.S.G. § 2D1.1, comment. (backg'd).
of the LSD plus the paper carrier medium. Based upon this
finding, the district court sentenced Hanlin to two terms of 30
months of imprisonment, to run concurrently, three years of
supervised release, and a $50 special assessment on each count of
conviction.
Both parties appealed. Hanlin challenged the
sufficiency of the evidence to sustain his conviction, and the
government challenged the district court's decision to use the
weight of the pure LSD, rather than the combined weight of the
LSD and the paper carrier medium.
On July 15, 1991, in an unpublished opinion, this
Court vacated Hanlin's sentence and remanded the case to the
district court for resentencing in accordance with the Supreme
Court's decision in Chapman v. United States, 500 U.S. 453, 111
S. Ct. 1919 (1991). See United States v. Hanlin, Nos. 90-3616,
90-3688, 90-3689 & 90-3706 (3d Cir. July 15, 1991). The Chapman
decision dictates that the weight of the blotter paper, upon
which LSD is found, must be included when determining the
appropriate sentence for trafficking in LSD under 21 U.S.C. §
841(b)(1).
Applying the Chapman decision, the district court
determined the weight of the LSD/paper combination to be 24.448
grams and, accordingly, sentenced Hanlin to 120 months on both
counts of conviction, to run concurrently, two three-year terms
of supervised release, and a special assessment of $50 on each
count of conviction. App. 66-69. The court was constrained to
impose the 120-month sentence because 21 U.S.C. § 841(b)(1)(A)(v)
mandates a minimum ten-year sentence for a person convicted of
possession with intent to distribute in excess of 10 grams "of a
mixture or substance containing a detectable amount of" LSD, and
Hanlin had been in possession of 24.448 grams of such a LSD/paper
"mixture."
On March 31, 1994, Hanlin filed the present motion
for a reduction of sentence, relying on the amendment to
Guideline § 2D1.1(c) ("Amendment 488"), effective as of November
of 1993. The amended guideline, in an explicatory footnote,
provides:
In the case of LSD on a carrier medium (e.g.,
a sheet of blotter paper), do not use the
weight of the LSD/carrier medium. Instead,
treat each dose of LSD on the carrier medium
as equal to 0.4 mg of LSD for the purposes of
the Drug Quantity Table.
U.S.S.G. § 2D1.1(c).
The Sentencing Commission chose the 0.4 mg per
dose approach in the hope of alleviating "unwarranted disparity
among offenses involving the same quantity of actual LSD (but of
different carrier weights)" and to bring sentences for LSD in
line proportionately with sentences involving other more
dangerous controlled substances, such as PCP. U.S.S.G. App. C,
amend. 488. Although the Drug Enforcement Administration's
standard dosage unit for pure LSD is 0.05 mg, the Sentencing
Commission chose to use 0.4 mg per dosage weight in order to
assign some weight to the carrier medium. Id. The Commission
did this in recognition that: (1) "offense levels for most other
controlled substances are based upon the weight of the mixture
containing the controlled substance without regard to purity;"
and (2) the Chapman decision holds that "the term ``mixture or
substance' in 21 U.S.C. § 841(b)(1) includes the carrier medium
in which LSD is absorbed." Id.
In his motion for a reduction of sentence, Hanlin
asserted that Amendment 488 created a conflict between the
Sentencing Guidelines and the Supreme Court's interpretation in
Chapman of 21 U.S.C. § 841(b)(1), which imposes the mandatory
minimum sentence. Particularly, Hanlin pointed out that, if the
court were to calculate the weight of the LSD involved in his
offense under Amendment 488 (3354 dosage units x 0.4 mgs per
dosage unit = 1341.6 mgs or 1.34 grams of LSD), he would not be
subject to the 10-year mandatory minimum sentence under §
841(b)(1). He claimed that he must be resentenced in accordance
with the weight calculation of Amendment 488; otherwise, his
rights to due process and equal protection would be violated.
The Government responded to Hanlin's motion,
asserting that the district court must comply with the holding of
Chapman, which requires the entire weight of the carrier medium
(i.e., blotter paper) to be included in the weight measurement
applicable to determine the mandatory minimum sentence under §
841(b)(1). The Government further pointed out that the
Commentary to § 2D1.1(c), as modified by Amendment 488, provides
that, in spite of the new 0.4 mg dosage weight allocated to LSD,
"this 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). Thus, the Government concluded that Hanlin's motion
for a reduction of sentence should be denied.
On August 19, 1994, the district court denied
Hanlin's motion, reasoning that the commentary to § 2D1.1 (quoted
above) contradicts Hanlin's contention that the court must use
Amendment 488's weight calculation for purposes of the mandatory
minimum sentence statute. App. 97-99. This appeal followed.
Applying the plenary standard of review, we affirm.
II.
Hanlin argues that the district court erred, in
determining his eligibility for a mandatory minimum sentence, by
employing the "entire weight" approach adopted by the Supreme
Court in Chapman rather than calculating the weight of the LSD
pursuant to amended § 2D1.1(c).2 Although it might be sensible
to use only one weight calculation method under both 21 U.S.C. §
841(b)(1) and U.S.S.G. § 2D1.1(c), it appears that neither the
Sentencing Commission nor Congress, when it permitted the 1993
amendments to take effect in November 1993, had that intent.
In Chapman, the Supreme Court held that "it is the
weight of the blotter paper containing LSD, and not the weight of
the pure LSD, which determines eligibility for the minimum
sentence" under § 841(b)(1) of Title 21. 500 U.S. at 455; 111 S.
Ct. at 1922. In reaching this conclusion, the Court reasoned
2
The amendment to Guidelines § 2D1.1(c) is applicable
retroactively within the discretion of the district court. See
U.S.S.G. § 1B1.10; 18 U.S.C. § 3582(c)(2); see also United States
v. Telman, 28 F.3d 94, 96 (10th Cir. 1994).
that, because the statute refers to the weight of a "mixture or
substance containing a detectable amount" of LSD, so long as the
blotter paper/LSD "mixture or substance" does contain a
detectable amount of LSD, the "entire mixture or substance is to
be weighed when calculating the sentence." Id. at 459; 111 S.
Ct. at 1924 (emphasis added). In addition, the Court noted that
Congress has treated other drugs, e.g., PCP and methamphetamine,
differently by basing mandatory minimum sentences either upon the
weight of the mixture or substance containing a detectable amount
or upon a lower weight of the pure drug. The Court reasoned that
Congress's failure to provide a similar net weight of pure drug
alternative for LSD indicates its intent that courts use the
gross weight of the mixture or substance. Id.
The Court found further support for its "entire
weight" approach in the fact that the present mandatory minimum
penalties for LSD originated from the 1986 Anti-Drug Abuse Act in
which "Congress adopted a ``market-oriented' approach to punishing
drug trafficking." Id. at 460-61; 111 S. Ct. at 1925. The Court
noted that Congress's market approach relied upon the total
quantity of the drug distributed -- cut or uncut -- rather than
upon the purity of the drug. Id. at 461; 111 S. Ct. at 1925.
The Court explained that this approach was motivated by
Congress's recognition that retail traffickers are the ones who
keep the street markets going and, therefore, should not be
punished less severely than their higher-ups even though they
deal in smaller quantities of the pure drug. Id.
Although the Guidelines paralleled the language in
the mandatory minimum statute at the time Chapman was decided,
id. at 457, 111 S. Ct. at 1923, and Amendment 488 changed that
parallel language by adopting the 0.4 mg per dose approach, the
amendment did not invalidate the holding of Chapman. To the
contrary, the amended language expressly excluded the use of the
0.4 mg approach in determining the applicability of statutory
mandatory minimum sentences. Moreover, all the Circuits that
have addressed this issue have so found. See United States v.
Pardue, 36 F.3d 429, 431 (5th Cir. 1994); United States v.
Mueller, 27 F.3d 494, 496-97 (10th Cir. 1994); United States v.
Boot, 25 F.3d 52, 55 (1st Cir. 1994); United States v. Tucker, 20
F.3d 242, 244 (7th Cir. 1994) (analogizing penalties for cocaine
base to those for LSD).3 We conclude that Amendment 488 neither
invalidated nor implicitly overruled the Supreme Court's holding
in Chapman.
Furthermore, Hanlin's mandatory minimum sentence
would not be affected by a lesser sentence that might be computed
under the Sentencing Guidelines. As already stated, Amendment
488 specifically provides that the 0.4 mg approach "does not
override the definition of mixture or substance for the purposes
of applying any mandatory minimum sentence (see Chapman; §
3
In United States v. Stoneking, 34 F.3d 651, 652 (8th Cir.
1994), the court held that the statutory mandatory minimum
sentence is determined by weight of LSD, as provided by Amendment
488's 0.4 mg per dose approach. However, the Eighth Circuit
vacated the panel opinion and judgment in Stoneking and the case
was set for oral argument before the court en banc on December 6,
1994.
5G1.1(b))." U.S.S.G. § 2D1.1, comment. (backg'd). In addition,
Guideline § 5G1.1(b) specifies that a statutorily required
minimum sentence shall be the guideline sentence where that
mandatory sentence is greater than the maximum of the guideline
range. Therefore, Hanlin's 10-year mandatory sentence,
calculated on a drug amount which includes the gross weight of
the mixture, takes precedence over any lesser Guidelines'
sentencing range.
Indeed, even if the Sentencing Commission had
intended the 0.4 mg per dose approach to be used in conjunction
with the mandatory minimum statute, Chapman would still control.
The Supreme Court in Chapman specifically stated that "[s]o long
as it contains a detectable amount [of LSD], the entire mixture
or substance is to be weighed when calculating the sentence."
Chapman, 500 U.S. at 459; 111 S. Ct. at 1924 (emphasis added).
The 0.4 mg approach adopted in Amendment 488 does not allow for
the entire weight of the mixture to be used in calculating the
defendant's sentence and, therefore, conflicts with Chapman if
applied to the mandatory minimum statute. See United States v.
Tannis, 942 F.2d 196, 198 (3d Cir. 1991) (guidelines cannot
supersede statute). In sum, as the First Circuit noted in Boot,
25 F.3d at 55, until Congress or the Supreme Court revisits the
issue, two different formulas will be used for calculating LSD
quantity--one for statutory mandatory minimums and another for
Guidelines sentencing range purposes. The superior formula is
the Guidelines' formula because it recognizes that weighing the
entire carrier medium produces unwanted disparity among offenses
involving the same quantity of LSD but different carrier weights,
as well as among sentences for other more dangerous drugs; the
formula of 0.4 mg per-dose correctly assigns some weight to the
carrier medium, and recognizes that LSD is sold by dosage rather
than weight. However, until Congress expresses a desire to
coordinate the calculation of LSD quantity under the Guidelines
and 21 U.S.C. § 841(b)(1), we are bound by the Supreme Court's
Chapman formula which requires that the entire carrier medium be
weighed for minimum mandatory sentencing purposes.4
III.
In conclusion, we hold that Chapman governs the
definition of "mixture or substance" for purposes of conviction
and sentencing under 21 U.S.C. § 841(b)(1) and requires that the
entire weight of the carrier/LSD mixture be used in calculating
the drug amount. Thus, even if Hanlin's Guidelines' sentencing
range might be reduced by application of Amendment 488, the 10-
year sentence, imposed on Hanlin, would not be affected because
Hanlin remains subject to the mandatory minimum sentence provided
for by 21 U.S.C. § 841(b)(1) and Chapman. Accordingly, we affirm
the district court's denial of Hanlin's motion for a reduction of
sentence.
4
We find Hanlin's other arguments, that application of the
mandatory minimum sentence violated his right to due process and
that the rule of lenity required the LSD involved in his
conviction be weighed pursuant to amended § 2D1.1, to be without
merit.