United States v. Clifford Reed ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 3, 2021
Decided September 7, 2021
Before
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20‐3054
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 1:16‐CR‐00731(1)
CLIFFORD REED, William T. Hart,
Defendant‐Appellant. Judge.
ORDER
Clifford Reed pleaded guilty to selling heroin laced with other controlled
substances, but he argues that the statutory penalty scheme for his crimes—as
interpreted by the Supreme Court in Chapman v. United States, 500 U.S. 453 (1991)—is
unconstitutional. But Chapman controls this case, and Reed’s arguments that this court
should set it aside lack support, so we affirm.
No. 20‐3054 Page 2
The facts in this case are straightforward and undisputed. In 2016, Clifford Reed
sold a kilogram of heroin to a government informant. The heroin was laced with
fentanyl and carfentanil (both controlled substances) and mixed with other, inert
substances to dilute it for sale. Reed acknowledged that carfentanil was dangerous,
referring to it as “elephant tranquilizer” and suggesting that heroin laced with
carfentanil had caused eight recent deaths. Nevertheless, he asked the informant to help
him purchase two kilograms of carfentanil to mix with future supplies of heroin. At that
point, law enforcement agents stopped the car Reed and the informant were in,
searched it and found the heroin, and arrested Reed.
The mixture that Reed sold to the informant weighed 996 grams, and he was
eventually charged with distributing 100 grams or more of a mixture containing heroin,
400 grams or more of a mixture containing fentanyl, and 100 grams or more of a
mixture containing carfentanil. 21 U.S.C. § 841(a)(1). Reed was initially charged with
distributing more than a kilogram of heroin, but in a superseding indictment, the
government revised its charge to lower the actual weight. Reed pleaded guilty to all
three charges.
In the presentence report, the Probation Office calculated Reed’s offense level by
assigning the weight of the entire mixture to the drug resulting in the highest offense
level, carfentanil. Since his crime involved more than 300 grams but less than 1
kilogram of carfentanil, the Probation Office assigned him a base offense level of 32.
U.S.S.G. § 2D1.1(a)(5) and (c)(4). After a two‐level reduction for accepting responsibility,
and based on a criminal history category of VI, the Probation Office arrived at a
guideline range of 168 to 210 months’ imprisonment. It also found that his crime had a
statutory minimum sentence of 120 months’ imprisonment.
Reed objected to the PSR, arguing that he deserved a lower sentence because he
posed less of a danger than a hypothetical offender who sold 996 grams of pure heroin
or pure carfentanil. He introduced an expert’s analysis of how much pure heroin
(3.300%), fentanyl (0.082%), and carfentanil (0.077%) was in the mixture he sold. Based
on these estimates—rather than the amount of the total mixture—he proposed that the
correct guideline range should be only 37 to 46 months (based on an offense level of 14
rather than 30). For similar reasons, he argued that applying the statutory minimum
would violate his Fifth Amendment right to due process. Reed acknowledged that his
arguments went against Chapman and pointed to the dissent as a basis for relief.
See Chapman, 500 U.S. at 468 (Stevens, J. dissenting).
No. 20‐3054 Page 3
The district court ruled that Chapman was controlling and that Reed’s base
offense level had been correctly calculated at 32. But it ruled in Reed’s favor on another
of his objections not relevant here, lowering his criminal history category to V and his
guideline range to 151 to 188 months. In its discretion, the court granted Reed a
downward variance and sentenced him to the 120‐month statutory minimum.
Reed appeals solely on the question whether the weight of the mixture or the
weight of the controlled substances should have been used to calculate his statutory
minimum sentence and guideline range. He raises two arguments. First, this court
should interpret the words “mixture” and “substance” so as not to include cases like his
where the controlled substance is a small percent of the mixture. Second, the court
should alternatively strike the statute, 21 U.S.C. § 841(b), as unconstitutional (at least as
applied to him) because it “treat[s] dissimilarly situated defendants the same.”
Neither of these arguments is persuasive, but Reed has a bigger problem. The
Supreme Court already addressed these issues in Chapman v. United States, 500 U.S. 453(1991), and ruled against the positions that he asks us to take. The Supreme Court there
explained that the purpose of the “mixture or substance” language is to punish street
traffickers like Reed who distribute drugs cut with inert substances so that they can be
sold to consumers. Further, Chapman dismisses the idea that such a punishment regime
is unconstitutional.
Reed acknowledged at oral argument that the majority opinion in Chapman
undercuts his arguments. He suggests, however, that Chapman may not control his case
because, unlike in Chapman, the diluting agents here made up the vast majority of the
total weight. But Chapman makes no such distinction.
Reed further argues that this court can disregard or overturn Chapman for three
reasons: (1) the majority’s opinion is wrong; (2) it leads to unfair results; and (3) later
cases “have moved away from the majority’s holding in Chapman.”
We cannot disregard binding precedent from the Supreme Court. Cross v. United
States, 892 F.3d 288, 303 (7th Cir. 2018). This is true even if we believe a Supreme Court
opinion is unpersuasive or leads to unfair results. See id. And even if later Supreme
Court cases have questioned the reasoning of Chapman (the cases he cites do not), “the
Court of Appeals should follow the case which directly controls, leaving to [the
No. 20‐3054 Page 4
Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989).
Relying primarily on the dissent in Chapman, Reed also argues that the terms
“mixture” and “substance” in the statute are ambiguous. Since the majority’s
interpretation leads to an “absurd result,” this court should interpret it differently. But
Reed does not propose a definition of “mixture” or “substance” that would not include
his brick of heroin. And Chapman provides definitions that do apply to his case,
including “two substances blended together so that the particles of one are diffused
among the particles of the other.” Chapman, 500 U.S. at 462 (quoting 9 OXFORD ENGLISH
DICTIONARY 921 (2d ed.1989)). In fact, both the majority and the dissent in Chapman
agreed that heroin cut with other substances is a mixture under § 841(b).
Further, the statutory history makes clear that Reed’s crime is exactly the sort
that Congress intended to punish more severely when it adopted the current
punishment regime. As described in Chapman, Congress tried several punishment
schemes to deter the sale of controlled substances before enacting the current law. 500
U.S. at 460. As relevant here, the Comprehensive Drug Abuse Prevention and Control
Act of 1970 prescribed penalties with no regard for the quantity of the drug distributed.
Pub. L. 91‐513, 84 Stat. 1236. Unsatisfied with the results of that Act, Congress then tied
the prescribed punishments to the quantity of pure drug involved. See Comprehensive
Crime Control Act of 1984, Pub. L. 98‐473, 98 Stat. 2068. The current scheme took effect
when Congress modified § 841(b)(1)(A) to punish street traffickers more heavily by
tying the prescribed sentences to the weight of a “mixture or substance containing a
detectable amount of” the drug. See Chapman, 500 U.S. at 460–61 (“Congress did not
want to punish retail traffickers less severely, even though they deal in smaller
quantities of the pure drug, because such traffickers keep the street markets going.”)
(citing H.R. Rep. No. 99‐845, pt. 1, at 12 (1986)).
Reed next argues that the statute violates his Fifth Amendment right to due
process. He does not provide any standards for evaluating such a right, apart from
saying that his sentence is “absurd and irrational.” But the Supreme Court held in
Chapman that the penalty scheme at issue “is a rational sentencing scheme” that is
“intended to punish severely large‐volume drug traffickers at any level.” Id. at 465
(citing H.R. Rep. No. 99‐845, pt. 1, at 12, 17). By punishing drug traffickers based on the
No. 20‐3054 Page 5
“street weight” of their product (regardless of purity), Congress hoped to disrupt the
business of selling drugs to consumers. Id.Reed says that he is entitled to be sentenced based on his relative culpability. He
maintains that he should not be punished as severely as a wholesaler who is responsible
for selling far more doses of the same substances. He adds that he is being punished
more severely than necessary to achieve the goals of sentencing stated in 18 U.S.C.
§ 3553(a). But these arguments were refuted directly in Chapman. “That distributors of
varying degrees of culpability might be subject to the same sentence does not mean that
the penalty system for [controlled substance] distribution is unconstitutional.” Chapman,
500 U.S. at 467.
Finally, to the extent Reed persists in his argument that his guideline range
should have been based on the weight of pure drugs that he sold, rather than the
weight of the mixture, that argument fails. Even if the guidelines suggested a shorter
prison term, the district court would still be bound by the statutory minimum to which
Reed was sentenced. See Koons v. United States, 138 S. Ct. 1783, 1787 (2018).
For these reasons, we AFFIRM the judgment.