
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 97-1468                                    UNITED STATES,                                      Appellee,                                          v.                                   MANUEL VALERIO,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                        and Dowd, Jr.,* Senior District Judge.                                        _____________________                                _____________________               Randy Olen,  with whom  John M. Cicilline  was on  brief for               __________              _________________          appellant.               Margaret E.  Curran, Assistant United States  Attorney, with               ___________________          whom Sheldon Whitehouse,  United States Attorney, and  Kenneth P.               __________________                                __________          Madden,  Assistant  United  States Attorney,  were  on  brief for          ______          appellee.                                 ____________________                                   January 26, 1998                                 ____________________                                        ____________________          *  Of the Northern District of Ohio, sitting by designation.                    DOWD, Senior District Judge.   The sole issue raised by                    DOWD, Senior District Judge.                          _____________________          this  appeal of  the  defendant's sentence,  based on  his guilty          plea,  is  whether the  defendant  was entitled  to  have cocaine          base(crack)  separated  from  the  cocaine  powder,  as  packaged          together in three containers. The defendant asserted that the two          forms of cocaine should have been  separated prior to calculating          the offense level.   The sentencing court disagreed  and we agree          with the sentencing court and thus affirm.                    The  defendant  was  charged   in  an  indictment  with          possession  with intent  to deliver  cocaine in  violation of  21          U.S.C.   841(a)(1).   He entered a plea of  guilty.  On June  28,          1996, Providence Rhode  Island police officers executed  a search          warrant at  the  defendant s home  and  seized three  bags,  each          containing cocaine powder and  cocaine base.  The total  combined          weight of powder and cocaine base was 123.4 grams.  Additionally,          the  police discovered a separate container containing 7.43 grams          of crack cocaine.1                                          ____________________          1  The  defendant entered his plea of guilty on December 6, 1996.          The United States  Attorney recited the factual basis  in part as          follows:                    . . . that on June 28, 1996, at approximately                    6:00   p.m.,   Providence   police   officers                    executed a search  warrant at  a first  floor                    apartment . .  . which  was the  home of  the                    defendant  Manuel Valerio.   At the  time the                    officers executed the  warrant, the defendant                    was  at home  . .  .  he was  advised of  his                    Miranda  warning by  the officers.   At  that                    _______                    time  he agreed  to show the  police officers                    where the drugs  in his  house were  located.                    He  led the officers to the master bedroom in                    the apartment.  Under the bed he pulled out a                    bag  of rice.  Examination of that bag showed                                         -2-                    The  district  court  calculated the  defendant s  base          offense level as  32 pursuant to   2D1.1(c)(4)  of the Sentencing          Guidelines  drug quantity table.2   The government argued and the          sentencing court agreed  that Note A to    2D1.1(c) applied which          indicates that if  a mixture or substance contains  more than one          controlled  substance, "the  weight  of  the  entire  mixture  or          substance is assigned to the controlled substance that results in          the greater  offense level."   Consequently, the three  bags with          weight of 123.4 grams  was treated as crack cocaine.3   The Court                                        ____________________                    that it contained  three plastic  bags.   The                    plastic bags each contained a substance later                    determined  in total to  be 123.4 grams  of a                    mixture containing powder cocaine and cocaine                    base  . .  . in  a  bedroom closet,  officers                    seized  a baby  wipes container.   Inside  of                    that were  two bags  of cut  and  also a  bag                    containing 7.43 grams of cocaine base.                      The defendant  agreed with the  above factual                    basis.            2   This  subsection applies  to offenses  involving at  least 50          grams, but less than 150 grams of crack cocaine.            3  Prior  to sentencing, the defendant moved  for the opportunity          to  have a  forensic  chemist separate  and  measure the  cocaine          powder and the cocaine base.   The motion was unopposed. However,          the defendant did not follow up on the request.  Nonetheless, the          defendant  argues that had  the crack cocaine  been isolated from          the  cocaine powder, the resulting  base offense level would have          been 26, with a net offense level of 25, which when combined with          the defendant's Criminal History of II, would have provided for a          range of 63-78 months.  In order  to lower the base offense level          to 26,  the weight of the  separated cocaine base,  when added to          the 7.43 grams  of crack cocaine in the  separate container would          have to have  been less  than 12.57  grams of cocaine  base as             2D1.1(c)(7) provides  for a  base offense level  of 26  where the          crack  cocaine is not more than  20 grams.  It  is not clear from          the record as  to why counsel  for the defendant  is of the  view          that the "separated" crack cocaine  in the three containers would          have weighed less than 12.57 grams.                                           -3-          found  that the  offense level was  31 with a  Guideline Range of          121-151  months by assessing a two  level increase for possession          of  a  firearm and  a  three  level  decrease for  acceptance  of          responsibility.                      The  government moved for a downward departure based on          substantial  assistance (   5K1.1)  and  the  Court  reduced  the          sentence below the mandatory  minimum to a term of 60 months from          which the defendant now appeals.4                      The  emerging issues in  determining the weight  of the          offending  controlled substances5  was partially  responsible for          the subsequent amendment 484 to the Sentencing Guidelines  and in          which the  defendant takes comfort  in this case.   Amendment 484          which  became  effective   November  1,  1993  and   amended  the          commentary to   2D1.1 by deleting "21 U.S.C.   841" and inserting          in lieu thereof:                    "21  U.S.C.      841,  except   as  expressly                    provided.    Mixture  or  substance does  not                    include materials that must be separated from                    the   controlled    substance   before    the                    controlled substance can  be used.   Examples                    of such materials include the fiberglass in a                    cocaine/fiberglass  bonded suitcase,  beeswax                                        ____________________          4  The  defendant's sentencing range, prior to  departure was 121          to 151 months.   The prosecution advocated a  seven year sentence          and  the defendant  a three  year sentence.   The  district court          indicated  it would,  in effect,  cut  the sentence  in half  and          sentence  the defendant  to the  sixty-month  term.   Defendant's          counsel reasons that had the cocaine powder and cocaine base been          separated for sentencing purposes with a resulting range of 63 to          78 months, cutting the sentence in  half would have resulted in a          32 month sentence.  Hence, the appeal.            5   See United States  v. Mahecha-Onofre, 936  F.2d 623 (1st Cir.                  _____________     ______________          1991) and  United States  v. L pez-Gil, 965  F.2d 1124  (1st Cir.                     _____________     _________          1992).                                         -4-                    in a cocaine/beeswax statute, and waste water                    from   an   illicit    laboratory   used   to                    manufacture a controlled substance.  If  such                    material cannot readily be separated from the                    mixture  or substance  that appropriately  is                    counted in the Drug Quantity Table, the court                    may use any  reasonable method to approximate                    the  weight of the mixture or substance to be                    counted.                    An  upward   departure  nonetheless   may  be                    warranted  when  the   mixture  or  substance                    counted  in   the  Drug  Quantity   Table  is                    combined with  other, non-countable  material                    in an unusually sophisticated manner in order                    to avoid detection.".                    It is without dispute that the defendant possessed with          intent  to  distribute  a  substance  containing  two  controlled          substances.  Nonetheless, because the two are not ingested in the          same manner, (the  powder is  inhaled  and the  crack  is smoked)          the  defendant argues  they  must  be  separated  for  sentencing          purposes  in reliance  on the  Amended Commentary  to U.S.S.G.             2D1.1  as the  cocaine powder  and cocaine  base come  within the          concept of "materials  that must be separated from the controlled          substance before the controlled substance can be used."  However,          as indicated in United States v.  Campbell, 61 F.3d 976, 982 (1st                          _____________     ________          Cir. 1995), cert. denied, 116  S. Ct. 1556 (1996) "the commentary                      ____________          excludes only materials  that are unusable or  unmarketable, such          as those  used to  transport the  controlled substance,  or waste          products  that are discarded  before the controlled  substance is          put  into the  distribution  chain."   (Citations  omitted).   As          neither  the  cocaine  powder  or  cocaine  base  is unusable  or          unmarketable,  the revisions  to the  commentary to  U.S.S.G.                                             -5-          2D1.1  provided by  Amendment 484  are  of no  assistance to  the          defendant.6                      Accordingly, the district court's judgment is AFFIRMED.                                                                  AFFIRMED                                        ____________________          6  Defendant's counsel, at the  sentencing hearing, advocated the          separation contending that finding the two substances together is          illogical and went on to state that he could not explain  why the          cocaine base  and cocaine  powder were mixed.   No  testimony was          offered as to why they were mixed,  but in our view the motive or          lack of motive for the mixture is not relevant.                                           -6-
