
USCA1 Opinion

	




        September 13, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1088                                    UNITED STATES,                                      Appellee,                                          v.                                   AARON S. LOWDEN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Arlene C. Halliday on brief for appellant.            __________________            Jay P. McCloskey,  United States Attorney, and Michael M.  DuBose,            ________________                               __________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   In light  of the  government's concession                 ___________            that the weight of "liquid LSD" should have been recalculated            in accordance with the 1993 amendment to U.S.S.G.   2D1.1(c),            the amended sentence is hereby vacated and the case  remanded            for resentencing.  See Loc. R.  27.1.  The parties cannot  by                               ___            agreement  create error where none exists  but we agree that,            at least on the surface, the commentary arguably contemplates            some adjustment where liquid LSD is involved.                 The government requests that we take this opportunity to            set forth  the proper methodology for  calculating the weight            of liquid LSD  under the sentencing guidelines.   For several            reasons, we think such a step would be premature.  The matter            was never presented to the district court (due in part to the            different position advanced by  the government below) and has            not been fully  addressed in this  court (due in part  to the            intervening motion to withdraw submitted by defense counsel).            At  least at  first glance,  several contrasting  methods for            resolving  the issue  appear  plausible.   See, e.g.,  United                                                       ___  ____   ______            States  v.  Jordan, 842  F. Supp.  1031, 1033-34  (M.D. Tenn.            ______      ______            1994);1 U.S.S.G.    2D1.1(c), comment. (n.18).   Depending on            the findings  reached by  the district  court on  remand, the            possible sentencing  ranges or sentences may  each fall short            of  the  applicable  five-year  mandatory  minimum--rendering                                            ____________________            1.  This case  was  not cited  by  appellant and  we  commend            government counsel for calling it to the court's attention.                                         -2-            resolution of the issue unnecessary.  And defendant will have            new  counsel on  remand.   For  these  reasons, we  think  it            preferable to have  the district court address  the matter in            the first instance, on the basis of all arguments the parties            deem pertinent.                  The  motion  of  defendant's   counsel  to  withdraw  is            allowed.   The motion for appointment  of replacement counsel            is denied  without prejudice;  defendant is directed  to file            such a motion  with the  district court.   As defendant  will            soon  have been  incarcerated  for five  years--the mandatory            minimum--we urge the district  court to address these matters            as promptly as possible.                  The amended  sentence is  vacated and the  case remanded                 ________________________________________________________            for  resentencing.  The motion  to withdraw is  allowed.  The            _____________________________________________________________            motion for appointment of counsel is denied without prejudice            _____________________________________________________________            to its submission to the district court.             ________________________________________                                         -3-
