                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2002

USA v. Berroa-Medrano
Precedential or Non-Precedential: Precedential

Docket No. 01-2212




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PRECEDENTIAL

       Filed September 6, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2212

UNITED STATES OF AMERICA

v.

JUAN D. BERROA-MEDRANO
a/k/a KALIN
a/k/a JOSE RAFAEL RIVERO
       Jose Rivero,
          Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania
(Crim. No. 97-00641-02)
District Judge: The Honorable James McGirr Kelly

Argued February 25, 2002

Before: ROTH, FUENTES and GIBSON,* Circuit Jud ges

(Opinion Filed: September 6, 2002)

       PAUL J. HETZNECKER, ESQ.

       1420 Walnut Street
       Suite 911
       Philadelphia, PA 19102
        Attorney for Appellant
_________________________________________________________________

* The Honorable John R. Gibson, United States Circuit Judge for the
Eighth Circuit, sitting by designation.




       PATRICK L. MEEHAN
       United States Attorney

       LAURIE MAGID
       Deputy United States Attorney
        for Policy and Appeals

       ROBERT A. ZAUZMER (argued)
       Assistant United States Attorney
       Senior Appellate Counsel

       BARBARA J. COHAN
       Assistant United States Attorney
       615 Chestnut Street
       Suite 1250
       Philadelphia, Pennsylvania 19106
        Attorneys for Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:

This case requires us to consider what constitutes a
"mixture or substance containing a detectable amount" of a
controlled substance for purposes of sentencing. Pursuant
to a plea agreement, defendant Juan Berroa-Medrano
("Berroa") pled guilty to a single count of conspiracy to
distribute heroin, but reserved the right to challenge at
sentencing the weight of the heroin in question. At
sentencing, although one of the two packages Berroa
admitted to distributing contained mostly drug cutting
agents and only trace amounts of heroin, the court used
the total weight of the two packages as the basis to
sentence Berroa to a 100-month prison term. On appeal,
Berroa challenges the sentence on the grounds that the
court improperly considered the gross weight of the two
packages, about 1 kilogram, rather than the net weight of
the heroin itself. Because we conclude that the District
Court was entitled to consider the entire weight of any
mixture or substance that contained a trace amount of
heroin, we affirm.

                                2


I.

A.

The facts of this case are fairly straightforward. Berroa
entered into an agreement with his co-defendant Mustafa
Alabed to sell an undetermined amount of heroin to an
individual who was actually a confidential informant. On
October 28, 1997, the informant, equipped with a wireless
transmitter, met with Alabed to arrange for the purchase of
one kilogram of heroin.

The informant and Alabed met inside Alabed’s carpet
store in Philadelphia, and then, to complete the
transaction, walked across the street to a building that
Alabed was renovating. Inside the building, the two men
met Berroa, who was holding a cereal box. Berroa handed
the box to the informant, who opened it and found that it
contained two separately wrapped packages, one large and
one small, each containing an off-white substance that
appeared to be heroin. The informant inspected the
packages without removing the contents, and returned the
box to Berroa, asking the defendants whether the heroin
was from the same batch as a sample that had been given
to him earlier in the day by Alabed. Alabed assured him
that it was. The informant left the building, ostensibly to
retrieve the payment for the heroin, but instead informed
the drug enforcement agents of what had transpired. When
he informed them that he believed Berroa was carrying a
gun, the agents decided to wait for backup. Before backup
arrived, however, Berroa fled the scene.

Once the backup officers arrived, Alabed was arrested
and the cereal box containing the two packages of off-white
powder was seized. The larger of the packages, which was
approximately the size and shape of a kilo of heroin, was
field-tested by the agents with negative results for the
presence of heroin. However, the smaller package, which
was on top of the larger one inside the cereal box, field-
tested positive for heroin. The smaller package contained
slightly more than one ounce of off-white powder.
Subsequent laboratory analysis disclosed that the larger
package weighed slightly less than one kilogram (983.9

                                3


grams) and was comprised almost exclusively of procaine
and lidocaine, common heroin cutting agents. The lab also
determined that the larger package contained traces of
heroin, but the purity of the drug could not be determined
due to its small quantity. The smaller package, weighing 32
grams, contained a similar mix of cutting agents, but with
heroin detected at a purity of 3%.

B.

On December 3, 1997, a federal grand jury indicted
Berroa, in absentia, along with Alabed, and charged him
with conspiracy to distribute heroin in violation of 21
U.S.C. S 846; distribution of heroin in violation of 21 U.S.C.
S 841(a)(1) and 18 U.S.C. S 2; and distribution of heroin
near a school in violation of 21 U.S.C. SS 860(a) and 841(a)(1).1
Berroa was further charged with using and carrying a
firearm in connection with a drug trafficking offense in
violation of 18 U.S.C. S 924(c). Berroa was arrested
approximately one year later in December 1998, in
Camden, New Jersey, on state criminal charges unrelated
to the instant case. Thereafter, he was removed to the
Eastern District of Pennsylvania to face the federal
indictment.

On February 22, 1999, Berroa pled guilty, pursuant to a
written plea agreement, to a single count of a superseding
information charging distribution of heroin in violation of
21 U.S.C. S 841(a)(1).2 The plea agreement provided for
dismissal of the remaining charges. Additionally, Berroa’s
plea agreement contained a provision stating that the
parties "have not agreed on the quantity of drugs on which
the defendant’s sentence should be calculated under[the
relevant sentencing guidelines], and reserve their right to
_________________________________________________________________

1. Alabed later pled guilty to a single count of distribution of heroin, in
violation of 21 U.S.C. S 841(a)(1), and was sentenced to 60 months
imprisonment followed by a five-year term of supervised release.

2. 21 U.S.C. S 841(a)(1) states, in relevant part, that "it shall be unlawful
for any person knowingly or intentionally . . . to manufacture, distribute,
or dispense, or [to] possess with intent to manufacture, distribute, or
dispense, a controlled substance."

                                4


present their respective positions to the Court and
Probation Department." App. Br. at 4.

On May 2, 2001, the District Court sentenced Berroa.
The District Court concluded that under the United States
Sentencing Guidelines, the entire contents of each package
must be included in calculating Berroa’s sentence. The
court therefore determined that Berroa’s offense conduct
involved more than one kilogram of heroin, and that,
accordingly, Berroa’s sentencing guideline range was 168-
210 months. However, because of the unusually low purity
of the drug, the court granted Berroa a downward
departure under U.S.S.G. S 2D1.1(b)(6), and sentenced him
to 100 months imprisonment, 5 years supervised release,
and a fine of $2,500.3 Berroa timely appealed.

II.

We have jurisdiction to review Berroa’s sentence
pursuant to 28 U.S.C. S 1291. We review de novo a district
court’s application of the Sentencing Guidelines. United
States v. Henry, 282 F.3d 242, 246 (3d Cir. 2002).
_________________________________________________________________

3. Application Note 9 to U.S.S.G. S 2D1.1 specifically indicates that an
upward departure may be appropriate where the controlled substance is
of an unusually high purity. The comment further explains that the
purity of a controlled substance, "particularly in the case of heroin, may
be relevant in the sentencing process because it is probative of the
defendant’s role or position in the chain of distribution." Given the
Sentencing Commission’s omission of any discussion of a downward
departure for low drug purity, some courts have decided that a
downward departure is permissible while others have disagreed. Compare
United States v. Mikaelian, 168 F.3d 380, 390 (9th Cir. 1999) (stating
that "the low purity of heroin involved in a crime cannot be categorically
excluded as a basis for a downward departure"), with United States v.
Upthegrove, 974 F.2d 55, 56-57 (7th Cir. 1992) (holding that "downward
departure based on the low quality of the relevant drug is improper"
partly because the Application Notes contain "no corresponding provision
suggesting a downward departure for low quality drugs").

In this case, the Government acknowledged the District Court’s
discretion to depart downward based on low purity and does not
challenge the exercise of the Court’s discretion in this regard on appeal.
Gov’t Br. at 28-29 & n.10. Accordingly, we need not reach this issue
here.

                                5


III.

A.

The District Court calculated Berroa’s sentence using the
Drug Quantity Table, subsection (c) of U.S.S.G.S 2D1.1.4
Application Note (A) of the "Notes to Drug Quantity Table"
provides that, "[u]nless otherwise specified, the weight of a
controlled substance set forth in the table refers to the
entire weight of any mixture or substance containing a
detectable amount of the controlled substance" U.S.
Sentencing Guidelines Manual S 2D1.1(c), cmt. n.A.
(emphasis added). The language is derived from the
mandatory minimum sentence provision of the statute
under which Berroa was convicted. Section 841(b) provides
minimum penalties for anyone violating S 841(a), including
"100 grams or more of a mixture or substance containing a
detectable amount of heroin" 21 U.S.C. S 841(b)(1)(B)(i)
(emphasis added). The District Court examined this
language and determined that, under the circumstances of
Berroa’s case, it was required to include the combined
weight of both packages in calculating Berroa’s sentence.
The judge commented that, although it was "unusual" in
his experience that a lab was "unable to determine the
purity of [the drug in question,]" he could not "ignore [that]
. . . [t]here was a detectable amount of a[controlled]
substance" in the larger package. App. at A46. Therefore,
the court determined that Berroa’s base offense level,
including a 2-step increase for obstruction of justice based
on a false identity charge, was 34, resulting in a guideline
range of 168-210 months imprisonment.5
_________________________________________________________________

4. U.S.S.G. S 2D1.1 establishes the base offense level for offenses
involving the "Unlawful Manufacturing, Importing, Exporting, or
Trafficking" of controlled substances, and includes possession with the
intent to commit these felonies.

5. Conversely, if the court had decided to include only the contents of the
smaller package, or even the contents of the smaller package along with
the net weight of the heroin in the larger package, Berroa’s base offense
level, considering his criminal history category of II, would have been 18.
Even with a 2-step increase for obstruction of justice, Berroa’s sentence
would have been significantly reduced to 30-37 months.

                                6


The District Court was not without precedent in deciding
to include the entire contents of the larger, highly
adulterated package in sentencing Berroa. For example,
this Court recently determined that, even when a drug
contains a very slight amount of a controlled substance, the
entire package must count toward a defendant’s sentence.
See United States v. Butch, 256 F.3d 171, 177-80 (3d Cir.
2001) (instructing that the District Court must include the
gross weight of Endocet pills in calculating a defendant’s
mandatory minimum sentence under S 841(b), even though
the controlled substance (oxycodone) in the pills was merely
0.8% of the total weight of the pills; see also United States
v. Touby, 909 F.2d 759, 772-73 (3d Cir. 1990) (holding that
the entire weight of 100-gram slab of Euphoria must be
considered by sentencing court, even though the controlled
substance only comprised 2.7% of the total weight); United
States v. Buggs, 904 F.2d 1070, 1077, 1079-80 (7th Cir.
1990) (upholding sentence under S 841(b) for mixture
containing 1.2% heroin). Nevertheless, Berroa attempts to
distinguish his case by arguing that an immeasurably small
"trace" of a controlled substance, together with an
overwhelming amount of cutting agent, is neither a
"mixture" nor a "substance," either as those terms are
commonly understood or as intended by the statute or the
Sentencing Guidelines.

The Supreme Court has observed that since the terms
"mixture" and "substance" have "not been defined in the
statute or the Sentencing Guidelines and [have] no
distinctive common-law meaning," they should be
"construed . . . to have their ordinary meaning." Neal v.
United States, 516 U.S. 284, 289 (1996) (citing Chapman v.
United States, 500 U.S. 453, 461-62 (1991)). In Chapman,
the Supreme Court analyzed a provision of the
Comprehensive Drug Abuse Prevention and Control Act, 21
U.S.C. S 841, et seq., that calls for a mandatory minimum
sentence of five years for the distribution of any"mixture or
substance" containing LSD that weighed one gram or more.
Chapman 500 U.S. at 455 (quoting 21 U.S.C.
S 841(b(1)(B)(v)). The question before the Court was
whether, for sentencing purposes, the weight of LSD should
also include the blotter paper that is routinely sold with
LSD. Id. at 458. The Chapman court reasoned that,

                                7


because the LSD was "diffused among the fibers of the
paper . . . [and] cannot be distinguished from the blotter
paper nor easily separated from it," the entire package
constituted a mixture, and therefore, the total weight of the
blotter paper along with the absorbed LSD must be
considered under the statute. Id. at 462.

Like the LSD and blotter paper in Chapman, the traces of
heroin in the package used to sentence Berroa were
diffused within the procaine and lidocaine, and the heroin
could neither be distinguished nor easily separated from
the contents of the package. Thus, the entire contents of
the larger of the two packages used to sentence Berroa
appears to satisfy the criteria identified by the Chapman
court for identifying a "mixture" or a "substance."

Nevertheless, Berroa attempts to distinguish his case
from Chapman by relying on this court’s decision in United
States v. Rodriguez, 975 F.2d 999 (3d Cir. 1992). In
Rodriguez, the defendants had taped a thin layer of cocaine
(approximately 65 grams) over a much heavier block of
boric acid (approximately 3 kilograms) and, attempting to
pass the entire package off as 3 kilograms of cocaine, sold
this block to undercover government agents as a"gag bag."6
This Court held that, unlike the blotter paper/LSD mixture
in Chapman, the sentencing court in Rodriguez should have
excluded the weight of the boric acid, and only considered
the weight of the much lighter cocaine in calculating the
defendant’s base offense level under U.S.S.G. S 2D1.1.
Rodriguez, 975 F.2d at 1007.
Berroa argues that, like the defendants in Rodriguez, he
did not actually intend to sell a kilo of heroin to the
informant, but rather meant to "rip him off " by selling him
a highly diluted "gag bag." He claims that the
immeasurably small amount of heroin in the larger package
proves this intent. Therefore, he concludes that as in
Rodriguez, the sentencing court should not consider the
weight of the non-controlled substances in calculating his
sentence.
_________________________________________________________________

6. "Gag bag" is street parlance for a highly diluted or completely fake
container of drugs. Gov’t Br. at 14-15.

                                8


However, Berroa’s reading of this Court’s holding in
Rodriguez is too narrow. In Rodriguez, this Court placed as
much emphasis on the plain meaning of the term
"mixture," in the context of that case, as it did on the intent
of the seller. The Rodriguez court observed that, unlike the
circumstances in Chapman, in their case: 1) the boric acid
and the cocaine remained distinct although in close
proximity; 2) the boric acid was not being used as a cutting
agent; 3) the boric acid, being highly toxic, was not
intended to be consumed; and, 4) the boric acid did not
facilitate the distribution of cocaine. Id. at 1004-05. Relying
on these characteristics, we concluded that the
combination of cocaine and boric acid did not constitute a
"mixture or substance" as contemplated by the Sentencing
Commission in promulgating S 2D1.1, and that the clear
intent of the seller was to use the cocaine "only to
effectuate the scam by masking the identity of the boric
acid blocks." Id. at 1006.

Berroa’s case is clearly distinguishable. First, the trace of
heroin in the larger package was not "distinct although in
close proximity," but instead was inextricably combined
with the procaine and lidocaine. Second, while Berroa may
argue that the procaine and the lidocaine in the larger
package were not truly used as cutting agents but simply
used to trick the buyer into buying a "gag bag," procaine
and lidocaine are among the most common cutting agents
for street heroin. See Hurtado v. United States , 2001 WL
135742 at *1 (E.D.N.Y. 2001). Indeed, we note that this
Court and other courts of appeals have upheld sentences
for distribution of a controlled substance where procaine
and/or lidocaine were part of the "cut." See, e.g., United
States v. Agee, 597 F.2d 350, 352 (3d Cir. 1979) (upholding
conviction for sale of heroin that had been diluted with
"quinine, procaine and reducing sugar"); United States v.
Nelson, 499 F.2d 965, 966 (8th Cir. 1974) (affirming
conviction for distribution of heroin "laced with procaine
and lactose, the latter two being cutting powders").
Furthermore, neither one of these common cutting agents
is toxic, and each is regularly "consumed" by the
purchasers of heroin in the normal course of using the
drug. See United States v. Gray, 982 F.2d 1020, 1021 (6th
Cir. 1993) (noting that, at trial, the defendant had admitted

                                9


to using lidocaine in order "to adulterate cocaine for human
consumption"). Finally, the presence of the procaine and
lidocaine was intended to "facilitate the sale of[a controlled
substance]," since pure heroin would likely be toxic to most
any user. See Harrison’s Principles of Internal Medicine
2567 (Eugene Brumwald et. al. eds., 15th ed. 2001).
Clearly, the larger package for which Berroa was sentenced
was a "mixture" according to the Rodriguez standards.

Alternatively, Berroa argues that, even if the larger
package constituted a "mixture or substance," it was not a
"consumable," "marketable," or "ingestible" mixture of the
type that numerous courts have determined that Congress
and the Guidelines intended to punish. See Rodriguez, 975
F.2d at 1006 ("Congress was concerned with mixtures that
will eventually reach the streets--consumable mixtures.");
United States v. Acosta, 963 F.2d 551, 553 (2d Cir. 1992)
(determining that the Sentencing Guidelines do not require
that "the weight of an unusable portion of a mixture, which
makes the drugs uningestible and unmarketable, be
included in the overall weight calculation"); United States v.
Rolande-Gabriel, 938 F.2d 1231, 1237-38 (11th Cir. 1991)
(holding that "liquid waste" packed and transported with
cocaine was not to be considered part of the "mixture" used
to calculate a defendant’s sentence, as the liquid was
"unusable"). Berroa attempts to draw an analogy between
these cases and his own by emphasizing, once again, the
immeasurably small portion of controlled substance that
was included in the larger bag in his case. He argues that
this is not a "marketable" mixture since it is highly unlikely
that such a disproportionately low ratio of drugs to"cut"
was ever intended to be consumed or ingested, and that
therefore, the entire weight of the larger bag should have
been excluded in calculating his sentence underS 841(a)(1).

We disagree. In analyzing the cases upon which he relies,
Berroa ignores the single factor that was common to the
determination of each: that in order for the substance in
question to be marketable, ingestible, and/or consumable,
either the distributor or the dealer first had to separate the
controlled substance from the additional material. See
Rodriguez, 975 F.2d at 1006 (determining that block of
boric acid and cocaine was not a "marketable mixture"

                                10


because, inter alia, the "boric acid functioned more like
packaging material . . . from which the cocaine would have
to be removed [in order to] use"); Acosta, 963 F.2d at 555
("[T]he ‘mixture’ here was useless because. . . [i]t could not
be ingested or mixed with cutting agents unless and until
the cocaine was distilled from the creme liqueur); United
States v. Jennings 945 F.2d 129, 137-37 (6th Cir. 1991)
(finding that the district court erred in including poisonous
and other unusable parts of a methamphetamine mixture
that would otherwise have to be distilled in order to be
consumable); Rolande-Gabriel, 938 F.2d at 1237
(distinguishing Chapman because the cocaine mixture at
issue was easily separated from its liquid waste carrier
medium and had to be separated for the drug to be
consumed). The Second Circuit has explained that, in each
of these cases, the non-drug portion of the mixture was
"the functional equivalent of packaging material . . . which
quite clearly is not to be included in the weight
calculation." Acosta, 963 F.2d at 554 (citing Chapman, 500
U.S. at 462-63); see also U.S. Sentencing Guidelines
Manual S 2D1.1, cmt. n.1 (adopting the reasoning of these
cases by instructing that "[m]ixture or substance does not
include materials that must be separated from the
controlled substance before the controlled substance can be
used").

Conversely, common cutting agents such as procaine and
lidocaine are added to heroin specifically to facilitate its use
by addicts--thereby improving its ingestibility--and to
increase its profitability for dealers and distributors--
thereby enhancing its marketability. Because it was aware
of this, Congress "clearly intended [that a] dilutant, cutting
agent, or carrier medium be included in the weight of
[drugs like heroin and cocaine] for sentencing purposes"
even though "[i]n some cases, the concentration of the drug
is very low." Chapman, 500 U.S. at 459-60. In Chapman,
the Supreme Court noted that "Congress adopted a
‘market-oriented’ approach to punishing drug trafficking,
under which the total quantity of what is distributed,
rather than the amount of pure drug involved, is used to
determine the length of the sentence." Id. at 461. The Court
observed that "Congress did not want to punish retail
traffickers less severely, even though they deal in smaller

                                11


quantities of the pure drug, because such traffickers keep
the street markets going." Id. The Court further explained
that Congress "intended the penalty for drug trafficking to
be graduated according to the weight of the drugs in
whatever form they were found--cut or uncut, pure or
impure, ready for wholesale or ready for distribution at the
retail level." Id. Thus it is clear that a small amount of
controlled substance combined with common cutting
agents is a "marketable mixture" and the weight of the
entire mixture must be included for sentencing purposes.
We find that Congress’ "market-oriented approach" to
punishing drug trafficking clearly implicates Berroa’s larger
package that included a large quantity of procaine and
lidocaine and only a trace of heroin.

Berroa makes a related argument that a ‘trace’ of heroin
is not a ‘detectable amount’ under the Guideline. Only one
Circuit appears to have held that an infinitesimally small
portion of controlled substance combined in a mixture with
common cutting agents should not be considered under the
Sentencing Guidelines. See United States v. Jackson, 115
F.3d 843, 848-49 (11th Cir. 1997) (holding that a package
which contained 99 percent sugar and 1 percent cocaine
was not a "marketable" mixture and that, therefore, only
the net weight of the cocaine was relevant to determining a
defendant’s sentence under the Sentencing Guidelines). To
the extent that Berroa relies on Jackson, we disagree. The
plain language of both the statute and the guidelines
clearly indicates that the presence of "any detectable
amount" of a controlled substance requires a sentencing
court to consider the entire weight of a mixture. Webster’s
Dictionary defines detectable as "capable of being detected"
and defines "detect" as "to discover or determine the
existence, presence or fact of." Webster’s Third New
International Dictionary 616 (1993). While the initial field
test in this case yielded negative results, subsequent
laboratory tests indicated traces of heroin in the larger
package. Since the lab test disclosed the existence or
presence of at least some heroin, there was a "detectable"
amount in the larger package.

Finally, we note Berroa’s argument that a downward
departure is warranted because the unusually low purity of

                                12


the heroin involved here places the case outside the
heartland of cases covered under the guidelines. However,
the District Court in fact granted Berroa a significant
departure, finding that to do otherwise would "shock the
conscience." App. at A 46. As we previously mentioned, in
sentencing Berroa, the court first arrived at a Guideline
sentencing range of 168-210 months, but then granted
Berroa a substantial departure for "low drug purity" under
U.S.S.G. S 2D1.1(b)(6). This departure resulted in a
sentencing reduction of over 5 years. Berroa’s 100-month
sentence, based on a mixture containing a very low amount
of controlled substance, might appear inequitable. Yet the
Court accounted for this concern. The Court’s sizeable
downward departure for low drug purity mitigates any
perceived unfairness here.7

Accordingly, we hold that the traces of heroin disclosed
during lab testing in this case, although in amounts too
small to determine its purity within a mixture, constitute a
detectable amount, and that the District Court did not err
when it included the entire weight of the larger package in
calculating Berroa’s sentence under U.S.S.G. S 2D1.1.

IV.

For the foregoing reasons, the judgment of the District
Court is affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________
7. As we previously noted, supra at n.3, the Government acknowledged
the District Court’s discretion to depart downward based on low drug
purity and does not challenge the court’s discretionary authority in this
regard on appeal.

                                13
