
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1808                                    UNITED STATES,                                      Appellee,                                          v.                                 CHRISTOPHER N. SIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Cyr, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Donald Thomas Bergerson on brief for appellant.            _______________________            Jay P. McCloskey,  United States  Attorney, and  F. Mark  Terison,            ________________                                 ________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                  December 18, 1996                                 ____________________                 Per Curiam.  Defendant  Christopher Sia appeals from the                 __________            denial of  his  motion for  reduction  of sentence  under  18            U.S.C.    3582(c)(2).  For the reasons that follow, we vacate            and remand for further proceedings.                                          I.                 The   background  need   only   be  briefly   recounted.            Defendant  pled guilty to four  drug charges in  1991 and was            sentenced to 293 months in prison.  The offenses involved LSD            appearing  both   on  blotter  paper  and   in  liquid  form.            Thereafter, the Sentencing  Commission retroactively  revised            the methodology  for  calculating the  weight  of LSD.    See                                                                      ___            U.S.S.G. App. C (Amendment 488) (amending   2D1.1) (effective            November 1, 1993).   At the  recommendation of the  Probation            Office,   the  district   court   undertook   a  sua   sponte                                                             ____________            reconsideration  of  defendant's  sentence  in light  of  the            amendment  (as it did in over a  dozen other LSD cases in the            district).                   Applying the new formula to the blotter LSD, but deeming            it  inapplicable  to the  liquid LSD,  the court  reduced the            amount of "heroin equivalent"  attributable to defendant from            99  kilograms to  50 kilograms.   Even  with such  reduction,            however, defendant remained subject to the same offense level            (of   38)  and   the   same  sentencing   range  as   before.            Accordingly,  on  November  12,  1993,  without  filings from            defendant, the court issued  an amended judgment finding that                                         -2-            "the term  of incarceration  imposed herein is  unaffected by            the change in the  law."  Defendant through counsel  filed an            appeal  but  then  had  second  thoughts;  counsel  moved  to            withdraw and the appeal was dismissed in May 1994.                 In May 1996,  defendant filed the instant  pro se motion            for reduction,  contending in  a lengthy memo  that Amendment            488 did  in fact  apply  to the  liquid LSD  as  well as  the            blotter  LSD.  The  government filed  an opposition,  and the            district court denied the  motion in a margin order  stating:            "After  full review  of the  written submissions  hereon, the            within  motion  is  hereby  denied."    Defendant,  with  new            counsel, filed a timely appeal.                                         II.                 We do not understand the government here to be seriously            contending that Amendment 488  is inapplicable to liquid LSD.            The sole  reference to  liquid LSD  in the amendment  implies            otherwise.1    All  courts  to address  the  issue,  although                      1            differing over the precise  methodology to be employed, agree            that the full  weight of the  liquid LSD is  no longer to  be            included in  calculating drug quantities.   See, e.g., United                                                        ___  ____  ______            States  v. Ingram, 67 F.3d 126 (6th Cir. 1995); United States            ______     ______                               _____________                                            ____________________               1  See  U.S.S.G.   2D1.1 n.16 ("In the  case of liquid LSD               1  ___            (LSD that has not  been placed onto a carrier  medium), using                                                                    _____            the  weight of the LSD  alone to calculate  the offense level            _____________________________________________________________            may not  adequately reflect  the seriousness of  the offense.            In such  a  case, an  upward  departure may  be  warranted.")            (emphasis added).                                         -3-            v.  Turner, 59  F.3d 481  (4th Cir.  1995); United  States v.                ______                                  ______________            Jordan, 842  F. Supp.  1031  (M.D. Tenn.  1994).   And  in  a            ______            separate  appeal from  Maine  involving the  same  government            appellee, this court remanded  for resentencing based on "the            government's concession  that the weight of  the 'liquid LSD'            should have  been recalculated" in accordance  with Amendment            488;   we  there   agreed  that   "the  commentary   arguably            contemplates some adjustment  where liquid LSD is  involved."            United States v. Lowden, 36 F.3d 1090, 1994  WL 497586, at *1            _____________    ______            (1st Cir. 1994) (table) (per curiam).2                                                 2                 Instead,  the  government interposes  various procedural            objections  that,  in  its  view,  foreclose  defendant  from            seeking such  relief at  this  juncture.   It first  contends            that, just as in the habeas context, a defendant is precluded            from  filing  a  "successive"  or "repetitive"     3582(c)(2)            motion except under  narrow circumstances.   Yet even on  the            assumption that  defendant's earlier appeal  from the court's            sua sponte  order constituted such  a motion, the  analogy is            __________            strained.  A  habeas petition is  governed by specific  rules                                            ____________________               2    As it  did below,  the  government only  intimates on               2            appeal that the  amendment might be  inapplicable--suggesting            that the Probation  Office did not earlier  apply the revised            formula to liquid LSD because the drug was not "on" a carrier            medium  "as required  by the amendment"  but rather  "in" it.            Yet  the amended  commentary  uses the  words  "on" and  "in"            interchangeably.   And the  amendment's definition of  liquid            LSD as "LSD that has not been placed  onto a carrier medium,"            see  note 1 supra, indicates that the liquid solvent does not            ___         _____            constitute a carrier medium.   See, e.g., Ingram, 67  F.3d at                                           ___  ____  ______            128; Turner, 59 F.3d at 485.                 ______                                         -4-            restricting multiple  filings; a   3582(c)(2)  motion is not.            See, e.g., United States  v. Hollenbeck, 932 F. Supp.  53, 56            ___  ____  _____________     __________            (N.D.N.Y.  1996).   And  the  concerns  giving rise  to  such            constraints in the  habeas context are  implicated here to  a            far  lesser extent.   Instead,  a motion  under    3582(c)(2)            would appear more  akin to  one under the  former version  of            Fed.  R. Crim.  P. 35.    And it  was agreed  that successive            motions were permissible under that rule.   See, e.g., Heflin                                                        ___  ____  ______            v. United States,  358 U.S.  415, 418 n.7  (1959); Ekberg  v.               _____________                                   ______            United States, 167 F.2d 380, 384 (1st Cir. 1948).3                                                             3            _____________                 The  government also insists that defendant, having pled            guilty to an indictment charging distribution of at least ten            grams  of LSD and having stipulated to a heroin equivalent of            99 kilograms  for sentencing  purposes, cannot now  renege on            such agreements.  Yet the indictment and the stipulation were            both  based  upon  a  "mixture  or  substance"  containing  a            detectable amount  of LSD--a methodology  later discarded  by            Amendment 488.  Our  decision in United States v.  Lindia, 82                                             _____________     ______            F.3d  1154, 1159 n.3 (1st Cir. 1996), on which the government            relies, does not dictate that such stipulated drug quantities            were  immune  from  later   modification  resulting  from  an                                            ____________________               3    Neither  below  nor  on  appeal  has  the  government               3            contended that  this court's dismissal of  the earlier appeal            constitutes  the law  of  the case  binding  on the  district            court.   The matter is therefore waived.  See, e.g., Castillo                                                      ___  ____  ________            v. United States, 34 F.3d 443, 445 (7th Cir. 1994).  We would               _____________            be inclined  not to rely on  the doctrine in any  event.  See                                                                      ___            note 4 infra.                   _____                                         -5-            intervening amendment.  Indeed, under  the government's view,            the district  court would  have been precluded  from reducing            the quantity of  drugs attributable to defendant  in the 1993            amended judgment.                 In  the alternative,  the government  contends  that the            district  court properly denied the motion  as an exercise of            discretion.  To  be sure, given  the discretion entrusted  to            the lower  court in this context,  "most resentencing battles            will  be  won  or  lost in  the  district  court,  not  in an            appellate venue."   United States v.  LaBonte, 70 F.3d  1396,                                _____________     _______            1411  (1st Cir. 1995), cert. granted, 116 S. Ct. 2545 (1996).                                   _____________            Yet the court here  seemingly denied the motion based  on one            or more of  the arguments advanced  by the government  below.            As a result, it is possible  that the district court may have            misapprehended that Amendment 488 was  inapplicable to liquid            LSD (a misapprehension shared by this court, we might add, at            the time  of  defendant's earlier  appeal).   It is  likewise            possible that  the lower  court denied  relief  based on  the            mistaken  notion  that  defendant's  request  constituted  an            impermissible "successive"  motion.4   Given  these  possible                                               4                                            ____________________               4   It is also  conceivable (despite the lack  of any such               4            contention  from the  government) that  the lower  court felt            itself bound by this  court's earlier decision on law  of the            case grounds--a rationale with which it would be difficult to            quarrel.  Even if  so, that doctrine only "directs  a court's            discretion[;]  it  does  not  limit  the  tribunal's  power."            Arizona v. California, 460  U.S. 605, 618 (1983).   And under            _______    __________            the  circumstances presented--particularly  the clarification            of  the law  in the  wake of  defendant's  earlier appeal--we                                         -6-            misapprehensions, urged by the government, the district court            might  choose  now to  do something  different.   We  think a            remand is appropriate and vacate the sentence.                 As a  final argument,  the government suggests  that the            lower court calculated the revised sentencing range under the            amendment, determined that an  upward departure to 293 months            would be warranted, and then denied the motion simply because            defendant was  already  at that  level.   Yet the  government            mentioned  the possibility  of  an upward  departure only  in            passing below, and there  is no indication that  the district            court engaged in  any such undertaking.  Given  the magnitude            of  any   possible  such   departure  here  (if   defendant's            calculations bear out, he will be subject to an offense level            of 32, with  a range of 121 to 151  months), the government's            conjecture  on  the  ambiguous  record  before  us  does  not            suffice.   At  the  same time,  we  note that  Amendment  488            encourages  an upward departure  in cases of  liquid LSD, and            the court remains free to take such action on remand.                 In  deciding   whether  a   reduction  of  sentence   is            warranted, and  if  so to  what  extent, the  district  court            should first calculate the revised sentencing range under the            amendment.  This inquiry will require ascertaining either the            weight of "pure" LSD  dissolved in the liquid solvent  or the            number  of dosage  units  contained therein.   Defendant  has                                            ____________________            thinkit would be inappropriate to invoke that doctrine here.                                          -7-            proffered a figure for the weight of pure LSD, one apparently            drawn  from government laboratory  reports; as  those reports            are  not in  the  record, that  figure  cannot be  confirmed.            Alternatively,  he notes that the original presentence report            attributed a  total of  7500 dosage units  to 419 of  the 485            grams of liquid LSD for which  he was responsible.  By way of            extrapolation, and  on the  assumption that the  remaining 66            grams were of comparable strength, he derives  a total number            of  dosage  units  (8,680)  for  the  full  485  grams.    If            defendant's factual assumptions prove valid, the court  might            be  persuaded  to adopt  such  an  approach.   Alternatively,            additional evidence may be received.   We leave these matters            for resolution by the district court in the first instance.5                                                                       5                 Vacated and remanded for  further proceedings.  See Loc.                 ________________________________________________________            R. 27.1.            ________                                            ____________________               5  We  express no view as to whether  the number of dosage               5            units should be multiplied by 0.05 mg (the presumptive weight            of  pure LSD per dose), see Turner,  59 F.3d at 485-91, or by                                    ___ ______            0.4 mg  (the amendment's  conversion factor), see  Ingram, 67                                                          ___  ______            F.3d  at 128.   Indeed,  it may  prove unnecessary  to choose            between these competing approaches in the instant case.                                         -8-
