                                                                                                                           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Precedential or Non-Precedential: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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                  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.
