United States v. Gregory Alan Kinder , 64 F.3d 757 ( 1995 )

WINTER, Circuit Judge:

This appeal involves the question of whether an amendment to the United States Sentencing Guidelines altering the method for determining the relevant weight of LSD for Guidelines purposes also alters the method for determining whether a mandatory minimum sentence applies under 21 U.S.C. § 841(b). We hold that it does not.

Gregory Kinder pleaded guilty to distributing LSD. In May 1993, Kinder was sentenced to 120 months of imprisonment for possessing with intent to distribute 2235 tablets of LSD. He now appeals from the district court’s denial of his motion to modify that sentence.

At the time Kinder was sentenced, the Sentencing Guidelines provided that the sentencing range depended upon the total weight of the LSD and its carrier medium. Kinder’s 2235 tablets of LSD weighed a total of 21 grams. Therefore, his sentencing range was 97 to 121 months.¹ However, Kinder was subject to a mandatory minimum sentence of ten years for possessing with intent to distribute ten grams or more of a mixture or substance containing LSD. See 21 U.S.C. § 841(b)(l)(A)(v). Because a sentence cannot be lower than a statutorily required mandatory minimum term of imprisonment, no matter what the Guidelines range, Kinder received a sentence of 120 months imprisonment.

On November 1, 1993, the Sentencing Guidelines were amended to alter the method for determining the relevant weight of LSD. Section 2Dl.l(c) now 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. § 2Dl.l(c). As a result, the Guidelines now provide for a fixed weight of .4 milligram per dose, representing the total weight of both the drug, which is assigned a presumptive weight of .05 milligram, and the carrier medium, which is assigned a presumptive weight of .35 milligram. See U.S.S.G. § 2D1.1, comment, (backg’d.). Under Section 2Dl.l(c), which may be applied retroactively, see U.S.S.G. § 1B1.10, p.s., Kinder’s 2235 doses of LSD would be treated as weighing 894 milligrams (2235 x .4 milligram), or approximately .89 gram, rather than the actual weight of 21 grams. Kinder argues that the amendment to the Guidelines also alters the method by which weight is to be calculated for purposes of determining whether the mandatory minimum sentence applies. As a consequence, he argues, the weight of the LSD he possessed is now calculated at less than 10 grams, and he is not subject to the ten-year mandatory minimum sentence of imprisonment. Rather, his sentence should be within the Guidelines range of 41-51 months. We disagree.

Section 841(b)(l)(A)(v) provides:

In the case of a violation ... involving 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD) ... such person shall be sentenced to a term of imprisonment which may not be less than 10 years....

Before the November 1, 1998 amendment to the Guidelines, the Supreme Court had held that, in determining whether the mandatory minimum sentence applied, the weight of any mixture or substance containing a detectable amount of LSD — that is, the actual total weight of LSD and the carrier medium — was the weight to be used. See Chapman v. United States, 500 U.S. 458, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). The Court concluded that “Congress clearly intended the ... carrier medium to be included in the weight” of the drug where, as in the present case, the carrier is a “mixture or substance containing a detectable amount of the drug.” Id. at 460, 111 S.Ct. at 1925. The Court thus construed Section 841(b) to mean 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.” Id. at 459, 111 S.Ct. at 1924.

We conclude that the amendment to the Guidelines had no effect on the method of determining weight for the purpose of applying the mandatory minimum sentence. In the Commentary accompanying the revised guideline, the Sentencing Commission expressly stated that the amendment does not affect the determination of drug quantity for purposes of the mandatory minimum sentence statute. The Commentary, which is set out in pertinent part in the margin,² must be treated as “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with or a plainly erroneous reading of that guideline.” Stinson v. United States, — U.S.-,-, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). The Commentary states that the new Guidelines method for determining LSD quantities “does not override the applicability of ‘mixture or substance’ for the purpose of applying any mandatory minimum sentence. (see Chapman; § 561.1(b).” U.S.S.G. § 2D1.1 comment, (backg’d).

Kinder urges us to construe the Commentary to mean that the Guidelines new fixed weight-per-dose standard incorporates the holding of Chapman requiring inclusion of the weight of the carrier medium, that is to say, the amendment calculates the combined weight of the LSD and the weight of the carrier medium, as did Chapman. However, the amendment assigns to the medium a fixed weight of .35 milligrams, while Chapman held that the actual weight was to govern. The plain meaning of the Commentary thus is that Chapman’s holding as to use of the actual weight of the medium continues to apply for purposes of mandatory minimum sentences. If the Commentary meant that the revised approach fully incorporated the holding in Chapman, then it would not have used the term “does not override.” Nor would it have cited to Section 5Gl.l(b), the Guideline that acknowledges the primacy of a statutory mandatory minimum sentence over a Guidelines sentence.

This conclusion is further bolstered by the fact that the Commentary relates only to offense levels, a term relevant to the Sentencing Guidelines but not to mandatory minimum sentences under Section 841(b). The Commentary thus describes the merits of the Commission’s approach as “harmoniz[ing] offense levels for LSD offenses with those for other controlled substances and avoid[ing] an undue influence of varied carrier weight on the applicable offense level” (emphasis added) just before acknowledging that, “nonetheless,” the approach does not “override the applicability of ‘mixture or substance’ for the purpose of applying any mandatory minimum sentence.” The use of the term “nonetheless” indicates that the Commission meant that in spite of the merits of its approach, Chapman prevails where pertinent.

Moreover, the Sentencing Commission lacks the authority to displace the Chapman method for determining drug quantity under Section 841(b). In United States v. Palacio, 4 F.3d 150 (2d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1194, 127 L.Ed.2d 543 (1994), a defendant challenged the definition of cocaine base under Section 841(b) on the ground that a proposed amendment to the Guidelines defined “cocaine base” differently. We held that the Sentencing Commission has no power to change a prior judicial interpretation of the statutory term “cocaine base.” Id. at 154-55. We further held that, in the absence of new guidance from Congress, we would not reinterpret a statutory term “when our initial construction of a statute is solely the result of an independent judicial interpretation of a statutory term, rather than deference to the reasonable interpretation adopted by an agency.” Id. at 154. Palacio thus precludes the Commission from altering the Chapman rule.

We acknowledge that, because the quantity of actual drug present in each dose is so small, the different calculation methods directed by the Sentencing Guidelines and the mandatory minimum sentence statute may lead to dramatic disparities in offenders’ sentences for identical doses of LSD. For example, an offense involving 100 doses of LSD in a carrier medium weighing a total of 10 grams would result in a ten-year mandatory term of imprisonment for a first-time offender. If another first-time offender carried the same number of doses in a carrier medium weighing a total of less than one gram, his or her expected range of imprisonment would be 10 to 16 months, based upon a Criminal History Category of I and a base offense level of 12 (100 x .4 milligram = 40 milligrams). However, these disparities are entirely a function of Section 841(b) and the Chapman decision. Until there is either congressional action or a reinterpretation of that Section by the Supreme Court, Chapman governs the meaning of the term “mixture or substance” for purposes of determining LSD quantity under 21 U.S.C. § 841(b), and LSD weight will be calculated for sentencing under a dual weight system.

Our conclusion is identical to that reached by every court of appeals that has considered the issue to date, see United States v. Boot, 25 F.3d 52 (1st Cir.1994); United States v. Hanlin, 48 F.3d 121 (3d Cir.1995); United States v. Pardue, 36 F.3d 429 (5th Cir.1994) (per curiam), cert. denied, — U.S.-, 115 S.Ct. 1969, 131 L.Ed.2d 858 (1995); United States v. Andress, 47 F.3d 839 (6th Cir.1995) (per curiam); United States v. Neal, 46 F.3d 1405 (7th Cir.1995) (in banc), cert. granted, — U.S. -, 115 S.Ct. 2576, 132 L.Ed.2d 826 (1995); United States v. Mueller, 27 F.3d 494 (10th Cir.1994); United States v. Stoneking, 60 F.3d 399 (8th Cir.1995) (m banc); United States v. Pope, 58 F.3d 1567 (11th Cir.1995), except one, see United States v. Muschik, 49 F.3d 512 (9th Cir.1995).

Kinder also contends that, in light of the revision to Section 2D1.1, his sentence is unconstitutional as violative of the Due Process Clause and the Cruel and Unusual Punishments Clause. Neither of these claims was raised before the district court, but they are in any event meritless.

Affirmed.³

1 . The 97 to 121 months range imposed under the Guidelines in use at the time of sentencing reflected a base offense level of 32 under Section 2D 1.1 (c)(6), applicable to an offense involving at least 10 but less than 30 grams of LSD, adjusted downward three levels for acceptance of responsibility under Section 3El.l(b), in Criminal History Category II.

2 . The pertinent portion of the Commentary states:

Because the weights of LSD carrier media vary widely and typically far exceed the weight of the controlled substance itself, the Commission has determined 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 actual LSD (but different carrier weights), as well as sentences disproportionate to those for other, more dangerous controlled substances, such as PCP. Consequently, 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.

The dosage weight of LSD 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, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (holding that the term “mixture or substance” in 21 U.S.C. § 841(b)(1) includes 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.... Thus, the approach decided upon by the Commission will harmonize offense levels for LSD offenses with those for other controlled substances and avoid an undue influence of varied carrier weight on the applicable offense level. Nonetheless, this approach does not override the applicability of "mixture or substance” for the purpose of applying any mandatory minimum sentence (see Chapman; § 5Gl.l(b)). U.S.S.G. § 2D 1.1 comment, (backg’d.).

3 . We do not address the merits of the arguments made by our dissenting colleague because we believe that they are best directed to the Supreme Court.