United States v. Matthew Follett , 905 F.2d 195 ( 1990 )

McMILLIAN, Circuit Judge.

Matthew Follett appeals from a final judgment entered in the District Court¹ for the Southern District of Iowa finding him guilty, following a guilty plea, of possession with intent to distribute 2,500 dosage units of LSD in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(B)(v). The district court sentenced Follett to 84 months imprisonment, 4 years supervised release, a $20,000 fine, and a $50 special assessment, plus the costs of incarceration and supervised release. For reversal, Follett argues the district court erred in (1) refusing to depart downward from the applicable guideline sentencing range because of his psychological problems and diminished mental capacity, (2) finding that he was not a minor participant, (3) holding the sentencing guidelines are not unconstitutional, and (4) calculating the quantity of drugs involved in the offense. For the reasons discussed below, we affirm the judgment of the district court.

This case arose out of the related cases of William Emanuel and Michael McGuire, who were involved in the distribution of LSD in and around Iowa City, Iowa. After his arrest Emanuel, who was Follett’s supplier, called Follett to discuss a drug transaction. Follett told Emanuel that he had sold 20 sheets of LSD in 7 days and had customers waiting for approximately 15-30 sheets of LSD. Emanuel told Follett that he did not want to “touch anything” because of his arrest. Follett agreed to deal directly with Emanuel’s supplier in California. Follett was unable to complete the transaction because the California supplier refused to make any sales involving Emanuel following Emanuel’s arrest. Although no controlled purchase was ever made from Follett, Emanuel testified to a grand jury that he had sold Follett approximately 2,500 dosage units of LSD.

Follett was initially charged with possession with intent to distribute in excess of 10 grams of LSD in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(v), and conspiracy to distribute LSD in violation of 21 U.S.C. § 846. Following plea negotiations, Follett was charged by information with possession with intent to distribute 2,500 dosage units of LSD in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(B)(v). Follett entered a guilty plea. The plea agreement stipulated that, subject to Follett’s objection to including the weight of the carrier paper to determine the total quantity of the drug involved, that Follett possessed in excess of 1 gram of a mixture or substance containing LSD, that he could have reasonably foreseen a total quantity of 7 to 9.9 grams of LSD, and that he had accepted responsibility. At the sentencing hearing, Follett presented evidence establishing that he has a history of psychological problems.

The district court found that the base offense level, based upon the quantity of LSD involved in the offense, which included the weight of the carrier paper, was 30, pursuant to Guidelines § 2D1.1(a)(3), and then subtracted 2 points for acceptance of responsibility. The district court refused a 2 point reduction for minor participant status, Guidelines § 3B1.2, and refused to depart downward on the basis of diminished mental capacity, Guidelines § 5K2.13. The applicable guideline sentencing range at an adjusted offense level of 28 and criminal history category I is 78-97 months. The district court sentenced Follett to 84 months imprisonment, 4 years supervised release, a $20,000 fine, and a $50 special assessment, plus the costs of incarceration and supervised release. This appeal followed.

Follett first argues the district court erred in refusing to depart downward on the basis of his psychological problems and diminished mental capacity. The district court’s refusal to depart downward is not reviewable on appeal. United States v. Evidente, 894 F.2d 1000, 1004 (8th Cir.1990).

Follett next argues the district court erred in failing to find that he was a minor participant pursuant to Guidelines § 3B1.2 and thus entitled to a 2 point reduction in the offense level. The district court’s finding that Follett was not a minor participant is a finding of fact subject to review under the clearly erroneous standard. See, e.g., United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir.1989) (per curiam). The record adequately supports the district court’s finding that Follett was not a minor participant. The district court’s finding is not clearly erroneous.

Follett next argues that the sentencing guidelines are unconstitutional on several grounds. This court has upheld the sentencing guidelines against challenges on each ground Follett raises. See United States v. Barnerd, 887 F.2d 841, 842 (8th Cir.1989) (per curiam) (guidelines do not unconstitutionally limit defendant’s right to present evidence); United States v. Lane, 883 F.2d 56, 57 (8th Cir.1989) (per curiam) (guidelines not unconstitutionally mechanical); United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989) (no constitutional right to individualized sentence in non-capital cases).

Finally, Follett argues that the district court should not have included the weight of the carrier paper in determining the quantity of LSD. This argument was rejected in United States v. Bishop, 894 F.2d 981, 985-86 (8th Cir.1990) (weight of distribution medium should be included in weight calculation).

Accordingly, the judgment of the district court is affirmed.

1 . The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa.