                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-1857
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                 v.

JAMES D. STEWART,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Western Division.
          No. 02-CR-50024—Philip G. Reinhard, Judge.
                          ____________
  ARGUED NOVEMBER 12, 2003—DECIDED MARCH 16, 2004
                   ____________



  Before BAUER, MANION, and ROVNER, Circuit Judges.
  BAUER, Circuit Judge. James D. Stewart pleaded guilty,
pursuant to a plea agreement, to one count of conspiring to
manufacture, distribute, and possess with intent to manu-
facture and distribute methamphetamine in violation of 21
U.S.C. § 846 and § 841(a)(1). Stewart contends that the
district court erred in finding him subject to a ten-year
mandatory minimum sentence under 21 U.S.C. § 841(b)(1)
(A)(viii) by including in the drug quantity for sentencing
purposes 825 grams of a solution generated during a
thwarted attempt to produce methamphetamine. Stewart
argues that the solution could not be used to calculate drug
weight under § 841(b) because it was not usable or consum-
2                                               No. 03-1857

able. Instead, Stewart argues, only the 2.4 grams of actual
methamphetamine present in the 825-gram solution should
have been counted, in which case he would not be subject to
a ten-year mandatory minimum sentence. Because we
conclude that the government’s evidence does not support
inclusion of the entire solution in the drug quantity, we
vacate Stewart’s sentence and remand for resentencing.


                   I. BACKGROUND
   In March 2002, Stewart and a co-defendant were arrested
while in Stewart’s vehicle. In the back seat was a thermos
containing the telltale ingredients of the pair’s attempt to
manufacture methamphetamine. At Stewart’s sentencing
hearing, DEA Special Agent Marc Folven gave conflicting
testimony about the contents of the thermos when it was
seized. On direct examination he said it contained crushed
pseudoephedrine tablets, anhydrous ammonia, lithium
strips from batteries, and ether. On cross-examination,
however, Agent Folven omitted mention of the ether. The
first two ingredients, when combined, together with a
catalyst such as lithium, react to form a solution containing
methamphetamine. After the reaction is complete, the
undissolved solid materials are normally filtered out, and
ether is then used as a solvent to separate the solution into
two parts—a top layer constituting “methamphetamine
base” and the rest liquid byproduct. Agent Folven conceded
that Stewart would have needed to take additional steps to
produce usable methamphetamine. First, to further process
the contents of the thermos into methamphetamine base,
Stewart had to filter out the remaining solid materials and
separate the liquid byproducts leaving the base. From
there, to further process the liquid methamphetamine base
into the powdered form typically consumed by methamphet-
amine users, Stewart had to add hydrochloric acid
gas—often made from drain cleaner and salt—to crystallize
No. 03-1857                                               3

the methamphetamine base into powder. Following this
final stage of processing, the liquid remaining after the
methamphetamine base crystalized into powder would be
considered waste, but would contain trace amounts of
methamphetamine.
  Although the record developed by the government is am-
biguous, it appears that the investigating agents filtered
the solid materials from the contents of the thermos, and
weighed only the remaining solution in arriving at the 825-
gram figure. A DEA chemist estimated, and both parties
stipulated, that the entire 825 grams contained 2.4 grams
of pure methamphetamine, which, after processing, Stewart
could distribute in powder form. In addition to the contents
of the thermos, Stewart and his co-defendant also had with
them in the car when they were arrested several bags of
fully processed powdered methamphetamine weighing 18
grams total and containing 3.1 grams of pure methamphet-
amine.
  Stewart pleaded guilty to a count alleging that he con-
spired to manufacture, distribute, and possess with intent
to manufacture and distribute 500 or more grams of
methamphetamine, but reserved the right to challenge at
sentencing the drug amount. For guidelines purposes the
district court determined that Stewart’s offense involved at
least five grams but not more than 20 grams of actual, or
pure, methamphetamine and thus calculated his imprison-
ment range to be 100 to 125 months. See U.S.S.G.
§ 2D1.1(a)(3), (c)(7). But for purposes of § 841(b) and its
mandatory minimums, the district court concluded that the
825-gram solution from the thermos triggered a ten-year
mandatory minimum under § 841(b)(1)(A)(viii) because it
constituted “500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine.” As
a result, the district court adjusted the guideline range to
120 to 125 months, see U.S.S.G. § 5G1.1(c), and sentenced
Stewart to 120 months.
4                                               No. 03-1857

   In determining whether Stewart was subject to a man-
datory minimum sentence under § 841(b), the district court
purported to rely upon United States v. Johnson, 999 F.2d
1192, 1194-96 (7th Cir. 1993), in which we held that waste
water left over from the production of crack cocaine, even
though it held trace amounts of cocaine, could not be used
in calculating drug weight under the sentencing guidelines
because it “was not marketable and could not in any way be
used as a drug.” The district court reasoned that, unlike the
waste water in Johnson, the entire 825-gram solution
should be counted because it could be sold to someone who
could either finish processing it into methamphetamine
powder, or mix the solution with a soft drink and ingest it
directly. The government concedes in its brief, however,
that the solution was not ingestible in the form it was
seized, and that in concluding otherwise the court appar-
ently misconstrued Agent Folven’s testimony. What Agent
Folven said is that methamphetamine base can be mixed
into a soft drink, but he did not testify that Stewart’s
solution was methamphetamine base. Indeed, the agent’s
testimony leaves little doubt that further processing of
Stewart’s solution would be required to separate the meth-
amphetamine base. The solution could not have been safely
ingested because it still contained anhydrous ammonia, a
corrosive chemical that can be toxic if inhaled. See United
States v. Morrison, 207 F.3d 962, 964 (7th Cir. 2000); see
also United States v. Innie, 7 F.3d 840, 845 (9th Cir. 1993)
(liquid contained methamphetamine “along with unreacted
chemicals and by-products both of which are poisonous if
ingested”); United States v. Jennings, 945 F.2d 129, 137
(6th Cir. 1991) (defendants were “attempting to distill
methamphetamine from the otherwise uningestable [sic]
byproducts of its manufacture”).
  The government, though, does not clarify whether Agent
Folven was also referring to methamphetamine base, rather
than to the solution possessed by Stewart, when he testified
No. 03-1857                                              5

about whether the solution could be sold to others. The
transcript evidences that he meant that methamphetamine
base could be sold:
   Q. If you could explain. When is the methamphet-
      amine actually produced in any form for the first
      time that it’s produced during this process?
   A. It’s when the anhydrous ammonia, the lithium
      strips, and the pseudoephedrine are combined. It
      starts producing the methamphetamine. I mean,
      it’s not powder form, it’s a liquid type of form, but
      that’s when that chemical reaction takes place to
      produce the methamphetamine.
   Q. So, the methamphetamine at that point is in a li-
      quid form?
   A. Yes, sir.
   Q. So, the methamphetamine, does it have any—in the
      liquid form, does it have any value, as far as mar-
      ketability? Could it be sold and used at that point?
   A. Yes, sir.
   Q. And how is that?
   A. There’s been people that will buy the liquid meth,
      also, and people that use the liquid meth out there,
      also, methamphetamine base. They’ll drink it or
      other various ways to use it that way.
   Q. Can it be injected?
   A. Probably not in that way. I think it’s more or less
      drank that way.
   Q. But you can—you say it does have a market in that
      stage.
   A. Yes, sir.
6                                               No. 03-1857

    Q. And did I also hear your answer is that some people
       might use it in that stage?
    A. Yes, sir.
    Q. How?
    A. It’s a very pure form of meth. I’ve interviewed other
       users, and they’ve said that they’ve drank it before.
Sentencing Tr. at 38-39. If Agent Folven was referring to
methamphetamine base throughout this portion of his tes-
timony, then there is no evidence that the solution pos-
sessed by Stewart had reached the stage in processing
where it could have been sold to others for completion.
  The district court also read three opinions from other
circuits as holding that when a defendant is caught in the
process of manufacturing drugs, the sentencing court can
include in the drug weight anything found no matter its
stage of completion. Two of the three cases, though, actually
reach the opposite conclusion—that what is unusable; i.e.,
not consumable as a drug, must be excluded in calculating
drug weight. See United States v. Newsome, 998 F.2d 1571,
1575-79 (11th Cir. 1993) (“the gross weight of ‘unusable
mixtures’ should not be equated with the weight of a
controlled substance for sentencing purposes”; applying
sentencing guidelines); United States v. Sprague, 135 F.3d
1301, 1306 (9th Cir. 1998) (drug weight must exclude
substances that must be removed to render solution
containing methamphetamine usable; applying guidelines).
Only one of the cases arguably supports the district court’s
drug quantity finding. See United States v. Beltran-Felix,
934 F.2d 1075, 1076 (9th Cir. 1991) (holding that entire
weight of solution containing small amount of methamphet-
amine should be used to calculate mandatory minimum
sentence under § 841(b) even though solution was in early
stage of production).
No. 03-1857                                                      7

                      II. DISCUSSION
  On appeal Stewart argues that sentencing courts, when
applying the statutory penalties of § 841(b), should be con-
strained to exclude from the drug weight any unusable
portion of a solution containing methamphetamine, just as
they must do under the sentencing guidelines. The govern-
ment counters that the plain language of § 841(b) requires
inclusion of the full weight of any solution containing a de-
tectable amount of methamphetamine, regardless of what
else is in the solution.


    A. Only usable or consumable mixtures or substances can
       be included in drug quantity under § 841(b)
  Under § 841(b), a person who commits a drug offense
involving 500 grams or more of a “mixture or substance
containing a detectable amount of methamphetamine” must
be imprisoned for at least 10 years. The Supreme Court, in
Chapman v. United States, 500 U.S. 453, 461 (1991),
considered the meaning of “mixture or substance” under §
841(b). The Court defined the terms in accord with their
plain, dictionary meanings1 and held that “blotter paper
customarily used to distribute LSD is a ‘mixture or sub-
stance containing a detectable amount’ of LSD.” The Court
explained that this result was consistent with the purpose
of § 841, as expressed in the statute’s legislative history.


1
  The Court used the following definitions: “A ‘mixture’ is defined
to include ‘a portion of matter consisting of two or more compo-
nents that do not bear a fixed proportion to one another and that
however thoroughly commingled are regarded as retaining a
separate existence.’ Webster’s Third New International Dictionary
1449 (1986). A ‘mixture’ may also consist of two substances
blended together so that the particles of one are diffused among
the particles of another. 9 Oxford English Dictionary 921 (2d ed.
1989).” Chapman, 500 U.S. at 462.
8                                                No. 03-1857

The Court noted that Congress had “adopted a ‘market-
oriented’ approach to punishing drug trafficking.” Id. (citing
H.R. Rep. No. 99-845, at 11-12, 17 (1986)). Under a market-
oriented approach, “the total quantity of what is distrib-
uted, rather than the amount of pure drug involved, is used
to determine the length of the sentence.” Id. The Court
reasoned that this sentencing scheme was rational because
it “assigns more severe penalties to the distribution of
larger quantities of drugs,” including the “street weight” of
diluted drugs. Id. at 465. The Court also noted that because
carrier mediums (e.g., blotter paper for LSD) and cutting
agents (i.e., substances added to decrease purity or increase
amount of drugs for sale) aid in the distribution of drugs,
their weight should be included for sentencing. Id. at 465-
66. The Court explained that “Congress clearly intended the
dilutant, cutting agent, or carrier medium to be included in
the weight of those drugs for sentencing purposes. Inactive
ingredients are combined with pure heroin or cocaine, and
the mixture is then sold to consumers as a heavily diluted
form of the drug.” Id. at 460.
  Prior to Chapman, in the context of reviewing drug
quantity findings under the sentencing guidelines, this
court and several others had held that any “mixture or
substance” containing a detectable amount of drug should
be counted in the drug weight, without regard to whether
it was usable or consumable. See, e.g., United States v.
Garcia, 925 F.2d 170, 172-73 (7th Cir. 1991) (characterizing
damp marijuana as a “mixture” of water and marijuana);
Beltran-Felix, 934 F.2d at 1076-77 (holding that solution
that had not yet been processed into usable methamphet-
amine was a “mixture” under § 841(b)); United States v.
Mueller, 902 F.2d 336, 345 (5th Cir. 1990) (holding that
solution that had not yet been processed into usable
methamphetamine was a “mixture” under guidelines).
  Chapman, though, sparked divergent views about calcu-
lating drug quantity, both under § 841(b) and the guide-
No. 03-1857                                                9

lines. The First and Tenth Circuits held after Chapman
that the “plain language” of § 841(b) compels including in
the drug weight for statutory purposes any part of a solid or
liquid containing a detectable amount of drug. See United
States v. Richards, 87 F.3d 1152, 1157 (10th Cir. 1996)
(holding that solution not yet processed into usable meth-
amphetamine was a “mixture”); United States v. Mahecha-
Onofre, 936 F.2d 623, 625-26 (1st Cir. 1991) (holding that
cocaine combined with acrylic material to form part of
suitcase was a “mixture”).
  In contrast, after Chapman this court and six others have
generally applied what has come to be known as the
“market-oriented” approach when defining “mixture or
substance.” Under a “market-oriented” approach, only usa-
ble or consumable mixtures or substances are included in
the drug quantity for sentencing purposes. See, e.g., United
States v. Tucker, 20 F.3d 242, 244 (7th Cir. 1994) (including
weight of moisture in fully processed, consumable crack);
Johnson, 999 F.2d at 1196-97 (excluding weight of unusable
waste water in solution composed of waste water and traces
of cocaine base); United States v. Coleman, 166 F.3d 428,
432 (2d Cir. 1999) (including weight of moisture in fully
processed, consumable crack); United States v. Acosta, 963
F.2d 551, 553-54 (2d Cir. 1992) (excluding weight of creme
liqueur from solution containing creme liqueur—used to
conceal the drug—and cocaine); United States v. Berroa-
Medrano, 303 F.3d 277, 284 (3d Cir. 2002) (including entire
weight of heroin that was heavily diluted with common
cutting agents); United States v. Rodriguez, 975 F.2d 999,
1007 (3d Cir. 1992) (excluding weight of unusable and toxic
boric acid from packages containing boric acid and a thin
layer of cocaine); United States v. Robins, 967 F.2d 1387,
1389 (9th Cir. 1992) (excluding weight of cornmeal com-
bined with cocaine); United States v. Rolande-Gabriel, 938
F.2d 1231, 1237-38 (11th Cir. 1991) (excluding weight of
unusable liquid carrier medium where cocaine was dis-
10                                               No. 03-1857

solved in liquid). Although some circuits have applied a
market-oriented approach only to § 2D1.1, we have made
clear that the same analysis governs both the statutory
penalties and those of the guidelines. See Tucker, 20 F.3d at
244; Johnson, 999 F.2d at 1196-97.
  At the time Chapman was decided, the United States
Sentencing Commission was explicit that the language of
§ 2D1.1, referring to “the entire weight of any mixture or
substance containing a detectable amount of the controlled
substance,” had the same meaning as that in § 841(b).
U.S.S.G. § 2D1.1, comment. (n.1) (superceded effective Nov.
1, 1993); see also Neal v. United States, 516 U.S. 284, 290
(1996). Responding to the inter-circuit conflict arising after
Chapman, the Sentencing Commission in 1993 amended
Application Note 1 to § 2D1.1 to make explicit that sentenc-
ing courts should exclude “materials that must be separated
from the controlled substance before the controlled sub-
stance can be used.” See id. App. C, Amdt. 484; § 2D1.1,
comment. (n.1) (effective Nov. 1, 1993). Before this amend-
ment, courts interpreting the language “any mixture or
substance” in § 2D1.1 presumably believed that their
analyses applied equally to both the guidelines and
§ 841(b). Indeed, although in Johnson we were specifically
addressing a drug weight for calculation under the guide-
lines, our opinion rests squarely on our reading of § 841(b)
and Chapman, not on any language unique to § 2D1.1.
Thus, Johnson’s reasoning also answers the question posed
in this case about § 841(b), and the government does not
even contend that Johnson is limited to the guidelines.
  In fact, in Johnson we explicitly interpreted Chapman
to require a market-oriented approach in determining the
meaning of “mixture or substance” under both § 841(b)
and the pre-amendment version of § 2D1.1: “To read the
statute or Chapman as requiring inclusion of the weight of
all mixtures, whether or not they are usable, ingestible, or
marketable, leads to absurd and irrational results con-
No. 03-1857                                                 11

trary to congressional intent.” Johnson, 999 F.3d at 1197
(emphasis in original). We recognized that persons who pos-
sess solutions at an early stage of the manufacturing
process, or waste product in its aftermath, are not attempt-
ing to increase the amount of salable drug by adding a
dilutant, cutting agent, or carrier medium, as was the
concern in Chapman. See id. at 1196; see also Richards, 87
F.3d at 1159 (Seymour, J., dissenting). The partially pro-
cessed solution may tell us how much of a drug can be
produced, and the waste might tell us how much was pro-
duced, but neither material is usable in that form. Conse-
quently, rather than weighing everything, it would seem
reasonable to include only the amount of usable or consum-
able substances, Johnson, 999 F.2d at 1196, or the amount
of drug that the defendant could have extracted from
something that is unusable at the time of arrest, Jennings,
945 F.2d at 137.
   As Stewart argues, weighing everything for sentencing
purposes can lead to irrational results. We said as much in
Johnson, posing the hypothetical of a farmer plowing rem-
nants of his marijuana crop into the topsoil or a defendant
dumping drugs into the toilet and the sentencing court
considering the earth in the field or the water in the toilet
bowl as part of a mixture that should be weighed along with
the drugs. Johnson, 999 F.2d at 1196 n.8. We reasoned that
such results would be contrary to legislative intent because
Congress was concerned with mixtures that eventually will
reach the streets. Id. (citing Chapman, 500 U.S. at 463).
And while we thus agreed that “cutting agents and
dilutants can be factored into the weight calculation,” id. at
1197, we also concluded that substances which do not
“ ‘facilitate the distribution,’ ” should not be counted because
“there is no rational basis to a sentence based on the entire
weight of a useless mixture,” id. at 1196 (quoting Chapman,
500 U.S. at 466).
12                                            No. 03-1857

  Although two circuits have declined to apply a market-
oriented approach, nothing in those cases undermines our
reasoning in Johnson. In fact, we made clear in Johnson
that we disagreed with the First Circuit when that court
included the entire weight of acrylic material combined
with cocaine in Maheche-Onofre and gave no consideration
to the fact that the material was not ingestible. See John-
son, 999 F.2d at 1196 n.9.


 B. No distinction for methamphetamine in market-
    oriented approach
  Four of the seven circuits, including this one, that have
read Chapman to permit counting only usable or consum-
able substances as part of drug weight have not yet had
occasion to apply this approach to methamphetamine. The
Sixth Circuit, one of the three courts that after Chapman
have undertaken to decide whether methamphetamine
presents a special situation warranting a unique rule, held
in a case interpreting the pre-amendment version of § 2D1.1
that a market-oriented approach should apply to metham-
phetamine just like any other drug. See Jennings, 945 F.2d
at 137 (directing district court to include only the amount
of methamphetamine that defendants might have produced
from solution in preliminary stage of production). In
contrast, the Fifth Circuit has held that a market-oriented
approach should not apply to methamphetamine. See
United States v. Palacios-Molina, 7 F.3d 49, 53 (5th Cir.
1993) (stating that Chapman’s market-oriented analysis
applies to cocaine, but does not apply to methamphetamine
or PCP). The Fifth Circuit, in Palacios-Molina, noted that
in Chapman the Supreme Court had observed that meth-
amphetamine and PCP are treated differently than other
No. 03-1857                                                      13

drugs under the guidelines2 and § 841(b),3 in that sentenc-
ing could be based on either the weight of a mixture or the
pure drug. Palacios-Molina, 7 F.3d at 53; United States v.
Sherrod, 964 F.2d 1501, 1509-10 (5th Cir. 1992). The Fifth
Circuit thus concluded that the Court had not intended to
extend the market-oriented approach to methamphetamine.
Id. The court also stated that, in contrast to the otherwise
innocuous transport liquid with which the cocaine was



2
   “The terms ‘PCP (actual)’ and ‘Methamphetamine (actual)’ refer
to the weight of the controlled substance, itself, contained in the
mixture or substance. For example, a mixture weighing 10 grams
containing PCP at 50% purity contains 5 grams of PCP (actual).
In the case of a mixture or substance containing PCP or metham-
phetamine, use the offense level determined by the entire weight
of the mixture or substance, or the offense level determined by the
weight of the PCP (actual), or methamphetamine (actual),
whichever is greater.” U.S.S.G. § 2D1.1, Drug Quantity Table
(November 1992).
3
   For example, at the time Palacios-Molina was decided,
§ 841(b)(1)(a)(viii) provided for a mandatory minimum of 10 years
for a violation involving “100 grams or more of methamphetamine,
its salts, isomers, and salts of its isomers or 1 kilogram or more of
a mixture or substance containing a detectable amount of
methamphetamine, its salts, isomers, or salts of its isomers,”
while the 10-year mandatory minimum for heroin, cocaine, and
LSD was based only on a mixture or substance containing a de-
tectable amount of the drug. Although Congress did not explain
why it based the mandatory minimum sentences for methamphet-
amine and PCP on the amount of pure drug as well as a mixture,
one commentator has suggested that the likely reason is that
those drugs are more commonly sold in pure forms. See Todd E.
Gonyer, comment, Federal Sentencing in a Post-Chapman World:
What is a ‘Mixture or Substance’ Anyhow?, 46 U. Kan. L. Rev. 983,
991 n.69 (1998).
14                                              No. 03-1857

combined, precursor chemicals and waste materials in-
volved in methamphetamine cases are not innocuous
because they are necessary to manufacturing. Palacios-
Molina, 7 F.3d at 53. The Ninth Circuit adopted similar
reasoning when it stated that its pre-Chapman decision in
Beltran-Felix, where the court endorsed including in drug
quantity the entire weight of a solution containing both
methamphetamine and unusable byproducts of the manu-
facturing process, is consistent with Chapman. Robins, 967
F.2d at 1390; see Beltran-Felix, 934 F.2d at 1076. According
to the Ninth Circuit, the “solution facilitated the distribu-
tion of the methamphetamine” since the drug “could not
have been produced without it,” and thus the entire solution
was properly counted for sentencing purposes. Robins, 967
F.2d at 1390. The Eighth Circuit, although it has not
affirmatively adopted a market-oriented approach, used
similar reasoning when it counted for statutory purposes a
partially processed solution containing methamphetamine
because the solution would eventually be processed into a
distributable product. See United States v. Kuenstler, 325
F.3d 1015, 1023 (8th Cir. 2003).
  Though the government makes no argument that our
adoption of the market-oriented approach in Johnson covers
some drugs but not methamphetamine, we observe for the
sake of completeness that we reject the Fifth and Ninth
Circuits’ reasoning. The fact that Congress allows sentenc-
ing based on the pure amount of methamphetamine as an
alternative to weighing a mixture containing the drug
simply begs the question of what is meant by “mixture” in
this context and in no way points to the conclusion that a
special rule should be carved out for methamphetamine.
Because Congress was concerned with distributable or
usable drugs, it makes no sense that methamphetamine in
an unusable and undistributable form be counted dif-
ferently than cocaine in an unusable and undistributable
form. Congress’s concern as identified in Chapman was not
No. 03-1857                                                 15

combinations of unrefined or unfinished drugs and sub-
stances that will not be consumed and may even be toxic,
but the amount of usable drug that will be available for
distribution to consumers. Under the Fifth and Ninth
Circuits’ reasoning, the waste water remaining after the
production of crack in Johnson would have to be counted as
“drug” weight because the crack “could not have been
produced without it,” see Robins, 967 F.2d at 1390, but we
instead held that this unusable byproduct does not count for
sentencing, see Johnson, 999 F.2d at 1196.


  C. Manufacturing versus distribution
  Essentially, the government expresses no real disagree-
ment with what we have said so far, but instead argues
that, even if it is improper to include the weight of the
unusable portion of a solution when imposing a sentence for
distribution offenses, Stewart’s conviction is for manu-
facturing and for this offense the full 825-gram solution still
should be counted. The government points to the concurring
opinion in Johnson, which cautions against reading our
opinion as answering whether the waste water generated
from producing crack could have been included for sentenc-
ing had the defendant been charged with manufacturing
cocaine, rather than possession with intent to distribute.
Johnson, 999 F.2d at 1199. But the concurrence does not
advocate a different rule for manufacturing offenses, and
the government, other than saying that there ought to be a
different rule for manufacturing cases, never explains why.
Further, to our knowledge no court, even after the concur-
rence in Johnson, has drawn any distinction between
possession and manufacturing offenses.
  The government’s argument fails for two reasons. Most
fundamentally, the government mischaracterizes the nature
of Stewart’s conviction. Stewart was convicted not of
distribution or manufacturing, but of conspiracy to do both.
16                                               No. 03-1857

Although the government wants to call this a manufactur-
ing case out of convenience, that is not how the government
charged it. Moreover, § 841(a)(1) makes criminal the
manufacture, possession, or distribution of controlled
substances, and § 841(b) says uniformly to consider the
weight of a “mixture or substance containing a detectable
amount of drug.” Nothing in the statute suggests that
“mixture or substance” should be defined differently
depending upon how § 841(a) is violated, and the govern-
ment cites no authority, not even legislative history, for this
proposition. At oral argument, the government simply
offered its view that higher penalties should be reserved for
manufacturing offenses because without the manufacture
of drugs, there can be no distribution.
   But what the government would prefer the rule to be as
a policy matter is irrelevant, and we see no basis to read
§ 841(b) differently for distribution and manufacturing
offenses. It is clear that if Stewart had completed process-
ing the 825 grams of liquid into usable methamphetamine
and discarded the waste before being caught, only the
amount of finished product would be attributed to him for
sentencing. See, e.g., United States v. King, 356 F.3d 774,
779-80 (7th Cir. 2004) (sentence based on 145 grams of
usable methamphetamine defendant sold to undercover
detective). Similarly, if Stewart had been caught with his
raw materials before starting to manufacture the meth-
amphetamine, only the amount of finished product that
could be produced from the raw materials would have been
attributed to him for sentencing. See United States v.
Eschman, 227 F.3d 886, 890-91 (7th Cir. 2000); U.S.S.G.
§ 2D1.1 comment. (n.12). It would be illogical to include the
entire weight of the 825-gram solution in the drug quan-
tity—thus subjecting Stewart to a mandatory minimum
sentence—merely because Stewart was caught after he had
combined the raw materials, but before he had produced
usable methamphetamine; to do so would reward defen-
No. 03-1857                                              17

dants able to complete the manufacturing process without
detection. See Newsome, 998 F.2d at 1578 (“We see no
principled distinction for sentencing purposes between
‘precursor chemicals’ destined for conversion into a con-
trolled substance and combinations of those chemicals that
have been partially processed and are closer to the finished
product at the time they are discovered.”).


  D. Marketable versus usable
  The government argues alternatively that, even under
Johnson’s market-oriented approach, the district court
should be affirmed because it found that the 825-gram
solution was “marketable” to others who could finish the
processing. As discussed above, the court may have mis-
interpreted the DEA agent’s testimony that the solution
possessed by Stewart could be sold to others. Moreover, we
hold that it is immaterial under a market-oriented ap-
proach whether a solution can be sold to others for further
processing if that solution is unusable and unconsumable.
  The government offers no support for its argument that
“marketable” as it uses the term is consistent with the
“marketable” or “market-oriented” approaches as analyzed
in the cases. All courts that have interpreted Chapman and
applied a market-oriented approach have used “marketable”
to mean “usable” or “consumable” or “ingestible” and have
declined to include the weight of materials that must be
separated from the drug before the drug can be consumed.
See Johnson, 999 F.2d at 1196 (“Under a market-oriented
approach, when the mixture is not ingestible and therefore
not marketable there is no rational basis to a sentence
based on the entire weight of a useless mixture.”); Tucker,
20 F.3d at 244 (Because users “need not wait until the
water evaporates before using the drug,” the seized combi-
nation of water, cocaine and baking soda “comport[s] with
the common understanding of ‘mixture’ recognized in
18                                             No. 03-1857

Chapman.”); Rodriguez, 975 F.2d at 1007 (holding that a
usable/unusable differentiation best follows the reasoning
in Chapman). Further, at oral argument the government
conceded that the 825-gram solution would likely have a
lower value than the 2.4 grams of pure methamphetamine
contained in the solution because of the labor yet to be
expended in removing the unusable ingredients. It would be
illogical to impose higher penalties for a solution that has
less value than the pure drug contained in the solution
merely because the solution arguably could be sold to
someone at some price.


                   III. CONCLUSION
  For the foregoing reasons, we reiterate our conclusion in
Johnson that only usable or consumable mixtures or sub-
stances can be used in determining drug quantity under
§ 841(b). Under this approach, only the amount of pure drug
contained in an unusable solution, or the amount of usable
drug that is likely to be produced after that unusable
solution is fully processed, may be included in the drug
quantity under the statute. Although the district court
purported to use a market-oriented approach, it did not
exclude the unusable portion of the 825-gram solution from
the drug quantity for purposes of § 841(b). Under a market-
oriented approach, as described above, Stewart would not
be subject to a ten-year mandatory minimum sentence,
which requires 500 or more grams of a mixture or 50 or
more grams of pure methamphetamine. Accordingly, we
VACATE Stewart’s sentence and REMAND with directions to
the district court to sentence Stewart within his guideline
range of 100-125 months.
No. 03-1857                                         19

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—3-16-04
