In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1292

United States of America,

Plaintiff-Appellee,

v.

Marla Lynn Cones,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Indiana,
South Bend Division.
No. 3:97-CR-2(02)RM--Robert L.
Miller, Jr., Judge.


Argued October 1, 1999--Decided October 28, 1999



  Before Cudahy, Easterbrook, and Kanne,
Circuit Judges.

  Easterbrook, Circuit Judge. Customs
officials intercepted a package
originating in Vietnam and containing 248
grams of heroin bound for "Porsche Jones"
in Elkhart, Indiana. The drug had been
placed inside a book. Agents made a
controlled delivery. No one was home when
the agents first attempted to deliver the
package, and they left a standard Postal
Service notice. On the second attempt,
again no one was there, but a note
instructed the Postal Service to "Leave
Package for Porsche Jones between door!"
The agents did just that, then watched.
Three hours later, Marla Cones (whose
nickname is "Porche") arrived, learned
that the note directing the Postal
Service to redeliver the parcel had been
removed, and quickly left. Her car,
driven by Azibuike Iroh, performed a
series of maneuvers that seemed
calculated to detect or evade
surveillance. Iroh drove Cones to see the
friend to whose home the package had been
delivered. A half hour after the initial
visit to the mailbox, the car returned
and Cones retrieved the parcel. When the
car drove away a second time, the driver
again attempted to elude pursuit--but
failed. Cones and Iroh were arrested and
charged with heroin smuggling. A jury
found Iroh guilty, and we affirmed last
year. United States v. Doe, 149 F.3d 634
(7th Cir. 1998). Cones was convicted by
the judge following a bench trial.

  Iroh and Cones each asserted that the
other was solely responsible for the
drugs. Neither persuaded the trier of
fact; judge and jury concluded that Cones
and Iroh were partners in crime. The
package was mailed to a friend’s
apartment, where few knew that Cones
would receive mail, and it bore a
variation of her name that could not have
been widely known. Still, Cones contends,
the evidence was insufficient. She
maintains that she arranged for the
package to go to a friend’s place only
because some mail had been stolen
recently from her own mailbox. She blames
Iroh for duping her into acting as a
conduit for drugs--which Cones insists
that Iroh ordered. What evidence was
there, she inquires, that she knew the
package contained drugs?

  There was plenty of evidence. Drug
dealers don’t mail narcotics to strangers
without prior arrangement. Cones was no
stranger to the drug trade; she was
carrying a small amount of crack cocaine
when arrested. She obtained the package
in a manner that suggests knowledge that
the contents were illicit. Why visit a
friend’s house twice, with evasive
driving before and after retrieving the
parcel, if she thought that the package
contained only a book? Why did she think
that Iroh would order a book from Vietnam
to be delivered to an alias at a third
party’s house? Normal people would be
more than a little suspicious. (Cones
knew that the package was not addressed
to her right name and told her friend to
write "Porsche Jones" on the postal
slip.) What is more, this is not the
first time a "book" had arrived from
Vietnam. Near the time of the first, Iroh
gave Cones some $5,000. A trier of fact
sensibly could infer that Cones knew that
the first package contained drugs and
that the second was likely to do so too.

  Cones offers three objections to her
sentence. The first two are frivolous.
The district court’s conclusion that
Cones committed perjury at trial, and the
consequent enhancement for obstruction of
justice, is well supported by the
evidence--so well supported that her
lawyer did not object, dooming the
appellate contest by forfeiture as well
as by the district court’s findings.
Likewise with the district court’s
decision not to reduce her offense level
for playing a minor role. Cones was held
responsible only for the drugs in the
second package from Vietnam, and she was
not a minor participant in that
transaction. United States v. Mojica, 185
F.3d 780, 790-91 & n.10 (7th Cir. 1999);
United States v. Brown, 136 F.3d 1176,
1185-86 (7th Cir. 1998); United States v.
Burnett, 66 F.3d 137, 140 (7th Cir.
1995). But her third objection is more
substantial.

   Guideline 2D1.1(c) provides a base
offense level of 26 for a person who is
responsible for between 100 and 400 grams
of "any mixture or substance containing a
detectable amount" of heroin. Two extra
levels for obstruction of justice
produced a total offense level of 28, and
a sentencing range of 78 to 97 months for
a person with a criminal history category
of I. The district court decided to
depart upward six levels on the ground
that the substance in the book, which was
71% heroin, was of "unusually high
purity." See sec.2D1.1 Application Note
9:

   Trafficking in controlled
   substances, compounds, or mixtures
   of unusually high purity may warrant
   an upward departure, except in the
   case of pcp or methamphetamine for
   which the guideline itself provides
   for the consideration of purity (see
   the footnote to the Drug Quantity
   Table). The purity of the 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. Since controlled
   substances are often diluted and
   combined with other substances as
   they pass down the chain of
   distribution, the fact that a
   defendant is in possession of
   unusually pure narcotics may
   indicate a prominent role in the
   criminal enterprise and proximity to
   the source of the drugs. As large
   quantities are normally associated
   with high purities, this factor is
   particularly relevant where smaller
   quantities are involved.

Level 34 has a sentencing range of 151 to
188 months’ imprisonment, and the judge
chose the bottom of this range--which is
54 months higher than the top of the
range for level 28. Cones wants us to
hold that the departure is unauthorized.

  The district judge’s rationale for the
extra six levels is that 250 grams of 70%
pure heroin would produce 2.5 to 5.8
kilograms of heroin at traditional
street-level purities, which run from 3%
to 7%. A person responsible for between 1
and 3 kilograms of heroin has a base
offense level of 32; the 3-10 kilogram
range draws a base offense level of 34.
The district court’s six-level departure
put Cones in the equivalent of level 32,
on the ground that she received the
equivalent of 2.5 kilos of street-purity
heroin. The question we must consider is
whether a conversion to street-level
purity is an authorized reason for
departure.

  A judge may depart from the Guidelines
when "there exists an aggravating or
mitigating circumstance of a kind, or to
a degree, not adequately taken into
consideration by the Sentencing
Commission". 18 U.S.C. sec.3553(b). See
also Koon v. United States, 518 U.S. 81
(1996). Drug purity cannot reasonably be
described as a circumstance that the
Commission has overlooked or inadequately
considered. Both the relevant statutes
and the Guidelines use the formula
"mixture or substance containing a
detectable amount" of a given drug. E.g.,
21 U.S.C. sec.841(b)(1)(A)(i). The
possibility of converting to a uniform
purity--whether 100% purity or "street-
level" purity--was considered and
deliberately rejected. See United States
v. Marshall, 908 F.2d 1312 (7th Cir.
1990) (en banc), affirmed under the name
Chapman v. United States, 500 U.S. 453
(1991); United States v. Neal, 46 F.3d
1405 (7th Cir. 1995) (en banc), affirmed,
516 U.S. 284 (1996). When defendants who
sold a highly dilute drug objected that
the "detectable amount" approach greatly
magnifies their punishment compared with
people who sell a more concentrated drug,
both this court and the Supreme Court
responded in the cases just cited that
this outcome is the result of deliberate
choices by Congress and the Sentencing
Commission. Statutes and Guidelines allow
conversion to a uniform purity for pcp and
methamphetamine, and the Guidelines now
allow a conversion for lsd, which
reinforces the conclusion that for other
drugs Congress and the Commission have
rejected a common-purity approach. For
the same reasons that Chapman and Neal
preclude reducing the effective quantity
at defendants’ behest on the ground that
the drugs had been diluted to street
level, we now hold that judges should not
increase the effective quantity at
prosecutors’ behest on the ground that
street-level purity is the superior
measure. Chapman and Neal do not depend
on whose ox is being gored. For drugs
other than lsd, pcp, and methamphetamine,
the sentence must be calculated without
an adjustment to a uniform purity level.

  Application Note 9 does not invite
district judges to disregard the rule
that the entire mixture or substance must
be weighed without regard to purity. The
Note makes a different point: that higher
purity often is associated with a higher
position in the distribution network,
which may justify a higher sentence.
Higher-ups do more damage to society, and
the drugs found in their possession when
arrested may be only a small fraction of
the drugs that have passed through their
hands. Moreover, people higher in the
chain often are harder to detect and
prosecute. Greater social harm, and a
lower probability of detection, both
justify higher sentences in order to
maintain deterrence. Guideline 3B1.1
provides directly for an enhancement when
evidence establishes that the defendant
was an organizer, leader, manager, or
supervisor. If the criminal activity
involved five or more persons, or was
otherwise extensive, the offense level
goes up by 3 or 4; otherwise the increase
is 2 levels. Application Note 9 permits
an increase when it is not possible to
establish a supervisory role in the
conventional way, and the position in the
organization must be inferred from the
purity of the drug. Like other courts of
appeals, we think that this is the only
function of Application Note 9: a higher
sentence is appropriate only when purity
"is probative of the defendant’s role or
position in the chain of distribution."
United States v. Iguaran-Palmar, 926 F.2d
7, 10 (1st Cir. 1991) (dictum); United
States v. Mendoza, 121 F.3d 510, 515 (9th
Cir. 1997). The note does not authorize
courts to substitute a uniform-purity
approach for the contrary method
deliberately adopted by Congress and the
Sentencing Commission. What is more, when
higher purity implies a higher role in a
criminal organization, departure should
be limited to the number of levels that
could be awarded under sec.3B1.1;
otherwise a less formal method of proof
would undermine the decision to cap at 4
the number of offense levels that may be
assigned to bigwigs. An original source
of drugs might receive a greater
adjustment, we suggested in Marshall, 908
F.2d at 1324, but few defendants in
heroin or cocaine prosecutions fit that
description.

  Perhaps there are rare cases in which an
increase under sec.3B1.1 could be coupled
with a departure under Application Note
9, for a total of more than 4 levels,
though this smacks of double counting,
but we need not decide today whether
cases such as United States v. Rodriguez,
63 F.3d 1159, 1168-69 (1st Cir. 1995),
which allow this duplication, are
persuasive. Our point is that departure
should reflect the considerations
identified in Application Note 9 rather
than judicial disagreement with the
Guidelines’ failure to calculate
sentences based on a purity-adjusted
measure of drug quantity. This conclusion
is compatible with our decision to affirm
a six-level departure for Iroh. His only
argument was that departure for purity is
never proper, a line of argument rejected
as at odds with Application Note 9. See
Doe, 149 F.3d at 640. Cones has made a
different and better argument than her
co-defendant.

  Did Cones occupy a prominent or
especially dangerous role in the chain of
distribution? We need not remand to find
out, because the district court has
addressed this question already. After
quoting the passage in Application Note 9
that mentions "a prominent role in the
criminal enterprise and proximity to the
source of the drugs", the judge
continued: "There isn’t any evidence to
tell me that that describes you. There
isn’t any evidence to tell me that that
describes Mr. Iroh. . . . I simply do not
know." At oral argument, the prosecutor
also disclaimed any contention that Cones
was hard to apprehend; to the contrary,
he implied that every member of a
distribution chain deserves a higher
sentence (because breaking a single link
breaks the chain) and that Cones deserves
extra harsh treatment because recipients
of drugs mailed to this country are espe
cially easy to catch. (The proposition
that sentences should rise the easier the
defendant is to apprehend gets things
backwards.) The district judge made it
clear that his only reason for adjusting
Cones’s sentence was a belief that drug
quantities as a rule should be converted
to street-level purity. As Koon said,
however, departures must be limited to
unusual cases, ones not handled by the
Guidelines’ general rules. There is
nothing at all unusual about Cones’s
case, and the district judge’s reason
would apply to a large portion of all
federal drug prosecutions.

  Cones’s conviction is affirmed, but her
sentence is vacated, and the case is
remanded with instructions to resentence
her within the range for level 28.
