
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 93-2317                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                CHRISTOPHER LEE BOOT,                                Defendant, Appellant.                                                                                      __________________                                     ERRATA SHEET             The  opinion of  this Court, issued  June 7, 1994,  is amended as        follows:             Page 4, n.1, last line should read:  . . . comment. (backg'd.).             Page 7, l.5 from bottom should read:  . . . comment. (backg'd.).                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-2317                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                CHRISTOPHER LEE BOOT,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Richard  S. Emerson,  Jr., with  whom Childs,  Emerson, Rundlett,             _________________________             ___________________________        Fifield & Childs was on brief for appellant.         ________________             Michael M.  DuBose, Assistant  United States Attorney,  with whom             __________________        Jay P. McCloskey, United States Attorney, was on brief for appellee.         ________________                                                                                      ____________________                                     June 7, 1994                                                                                      ____________________                    CYR, Circuit  Judge.  After the  district court reduced                    CYR  Circuit  Judge                         ______________          its  original sentence in response  to a recent  amendment to the          Sentencing  Guidelines, see United  States Sentencing Commission,                                  ___          Guidelines Manual   2D1.1  (Nov. 1993), defendant Christopher Lee          _________________          Boot brought  the present appeal challenging  the court's concur-          rent refusal to reduce his prison term below the minimum mandated          by statute.  Finding no error, we affirm.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Appellant Boot  pled guilty to  distributing 11.6 grams          of lysergic acid diethylamide (LSD) within 1000 feet of a school.          See  21 U.S.C.    841(a)(1);    860(a) (1993).   For  purposes of          ___          determining both the statutory mandatory minimum sentence ("MMS"-          ),  see  id.    841(b)(1)(B)(v)  (prescribing  five-year MMS  for              ___  ___          distributing "1 gram or more of a mixture or substance containing          a  detectable  amount" of  LSD),  and  the applicable  Guidelines          sentencing range (GSR), see U.S.S.G.   2D1.1(c) (Nov. 1991),  the                                  ___          district court included  the entire weight of  the carrier medium          used to distribute  the 599 doses of LSD.   See Chapman v. United                                                      ___ _______    ______          States, 500 U.S.  453, 468 (1991) (broadly construing "mixture or          ______          substance," in  21 U.S.C.   841(b)(1)(B)(v),  as "requir[ing] the          weight  of the carrier medium to be included"); U.S.S.G.   2D1.1,          footnote *  (Nov. 1991) ("Unless otherwise  specified, the weight          of  a controlled substance set forth in the [Drug Quantity Table]                                          3          refers  to the entire weight of any mixture or substance contain-          ing  a detectable  amount  of the  controlled substance.");  id.,                                                                       ___          comment. (backg'd.).  (n.1) (Nov. 1991) ("'Mixture  or substance'          as used in this guideline has the same meaning as  in 21 U.S.C.            841.").    As a  result,  the  121-month prison  term  originally          imposed under  the Guidelines (BOL:   32; CHC:  I;  GSR:  121-151          months)  trumped the  five-year MMS  required under  21  U.S.C.            841(b)(1)(B)(v)  for distributing one gram  or more of  LSD.  See                                                                        ___          U.S.S.G.   5G1.1(c).                      Effective  November  1993,   however,  the   Sentencing          Commission  amended U.S.S.G.    2D1.1 ("Amendment  488"), see  28                                                                    ___          U.S.C.   994(p)  (empowering Commission to promulgate  amendments          to U.S.S.G.,  subject only  to express congressional  "veto"), by          prescribing a somewhat less  stringent (0.4 milligram "per dose")          formula for  calculating LSD quantity  than the regime  upheld in          Chapman.1   The Commission has  ordained that its  new 0.4 milli-          _______                                        ____________________               1The  Commission  spelled  out  the  competing  policy goals          addressed by Amendment 488 in new application note 18:                    Because  the  weights of  LSD  carrier  media vary               widely  and  typically far  exceed  the  weight of  the               controlled substance itself, the Commission  has deter-               mined that  basing offense levels on  the entire weight               of the LSD and carrier medium would produce unwarranted               disparity among offenses involving the same quantity of               LSD (but  different carrier  weights), as well  as sen-               tences disproportionate to  those for other, more  dan-               gerous controlled substances, such as PCP.  Consequent-               ly,  in  cases involving  LSD  contained  in a  carrier               medium,  the Commission  has established  a weight  per               dose of  0.4 milligram for purposes  of determining the               base offense level.                                          4          gram  per-dose  formula may  receive  retroactive application  in          appropriate  circumstances  to  effect  reductions  in  sentences          previously imposed.   See  U.S.S.G.    1B1.10(a), (d)  (1993); 18                                ___          U.S.C.    3582(c)(2); United States v. Holmes, 13 F.3d 1217, 1222                                _____________    ______          (8th Cir. 1994) (district courts  have discretion to apply Amend-          ment 488 retroactively in appropriate circumstances).2                                          ____________________                    The dosage weight of LSD selected exceeds the Drug               Enforcement Administration's standard  dosage unit  for               LSD of 0.05 milligram (i.e., the quantity of actual LSD                                      ____               per dose) in order to assign some weight to the carrier               medium.  Because LSD typically is marketed and consumed               orally  on  a carrier  medium,  the  inclusion of  some               weight  attributable to  the carrier  medium recognizes               (A)  that  offense  levels for  most  other  controlled               substances  are based  upon the  weight of  the mixture               containing the  controlled substance without  regard to               purity,  and  (B) the  decision  in  Chapman v.  United                                                    _______     ______               States, 111  S. Ct. 1919 (1991) (holding  that the term               ______               "mixture  or substance"  in 21  U.S.C.    841(b)(1) in-               cludes the  carrier medium  in which LSD  is absorbed).               At  the same time, the weight per dose selected is less               than the weight per dose that would equate  the offense               level for LSD  on a  carrier medium with  that for  the               same  number of  doses of  PCP, a  controlled substance               that comparative assessments indicate is more likely to               induce violent  acts and  ancillary crime than  is LSD.               (Treating  LSD  on a  carrier  medium  as weighing  0.5               milligram per dose would produce offense levels equiva-               lent to  those for  PCP.)   Thus, the  approach decided               upon by the  Commission will  harmonize offense  levels               for LSD  offenses with those for  other controlled sub-               stances and avoid any undue influence of varied carrier               weight on the applicable offense level.          U.S.S.G.   2D1.1, comment. (n.18).               2Section 3582 provides, in pertinent part:               The court may not modify a term of imprisonment once it               has been imposed except that                   ....                                          5                    Absent  the  MMS   complication  posed  by   21  U.S.C.            841(b)(1)(B)(v), Amendment 488 would have resulted in a dramat-          ic decrease in  appellant's prison sentence, since  it sliced the          GSR  from  121-151 months  (11.6 grams  of  LSD) to  27-33 months          (0.239 gram).   Due to 21 U.S.C.    841(b)(1)(B)(v), however, the          district court  refused to reduce  Boot's prison  term below  the          five-year  MMS.   See U.S.S.G    5G1.1(b)  ("Where  a statutorily                            ___          required minimum  sentence  is greater  than the  maximum of  the          applicable  guideline  range,  the statutorily  required  minimum          sentence shall be the guidelines range.").                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    The long and the short of the district court ruling was          that  the LSD quantity  calculation is controlled  by Chapman for                                                                _______          MMS purposes and by Amendment  488 for GSR purposes.   Boot coun-                                        ____________________                    (2)  in  the case  of  a  defendant who  has  been               sentenced to a term of imprisonment based on a sentenc-               ing  range that  has subsequently  been lowered  by the               Sentencing  Commission pursuant to  28 U.S.C.   994(o),               upon motion  of the  defendant or  the Director of  the               Bureau  of Prisons, or on its own motion, the court may               reduce the term of  imprisonment, after considering the               factors set forth in section 3553(a) to the extent that               they are applicable,  if such  reduction is  consistent               with applicable  policy statements  issued by the  Sen-               tencing Commission.             18 U.S.C.   3582(c)(2).                                          6          ters  that  by permitting  Amendment 488  to take  effect without          modification in November 1993,  Congress evinced its clear inten-          tion  to establish  a  unitary per-dose  "mixture and  substance"                                 _______          formula  for calculating  LSD weight in  MMS and  GSR sentencings          alike.   Thus, unless  Amendment 488 is  to be converted  into an          instrument  for  promoting  sentencing  disparity,  congressional          acquiescence  in its  adoption must  be considered  tantamount to          legislative  displacement  of  the  Chapman regime.    We  do not                                              _______          agree.3                     Although the  precise issue  presented is one  of first          impression  in  the courts  of  appeals,4  the  Supreme Court  in          Chapman concluded that Congress intended,  at the time it enacted          _______                                    __ ___ ____ __ _______                                        ____________________               3Contrary to Boot's contention,  Amendment 488, as presently          interpreted,  eliminates considerable past  and future sentencing                        __________          disparity in LSD cases, see U.S.S.G.   2D1.1, comment. (n.18), by                                  ___          substituting, in all non-MMS cases, a uniform 0.4  milligram per-          dose  formula  for calculating  the  LSD  "mixture or  substance"          weight in  place of the entire  actual weight of the  LSD and its          carrier medium.  See supra note 1.  The very substantial 61-month                           ___ _____          reduction  in Boot's  sentence  underscores the  point.   Further          efforts at reducing sentencing disparity in LSD cases must  await          improved coordination  between Amendment  488 and  its preemptive          counterpart    the  MMS regime     long recognized as an  "ad hoc          deviation"  from  the  unitary  policy goals  of  the  Sentencing          Guidelines, United  States v. McFadden,  13 F.3d 463,  468 (1994)                      ______________    ________          (Breyer, C.J., dissenting).               4No  district court  has  yet adopted  the unitary  approach          advocated by Boot.   See United States  v. Reddick, ___ F.  Supp.                               ___ _____________     _______          ___,  ___ (W.D.N.Y.  1994) [1994 U.S.  Dist. LEXIS 5978,  at * 15          (W.D.N.Y.  Apr. 20, 1994)];  United States  v. Neal, ___ F. Supp.                                       _____________     ____          ___, ___ (C.D. Ill. 1994)  [1994 U.S. Dist. LEXIS 4101, at  * 3-4          (C.D. Ill. Mar.  29, 1994)];  Woolston v. United  States, 840  F.                                        ________    ______________          Supp. 1,  ___ (D. Me.  1993).  Cf.  United States v.  Tucker, ___                                         ___  _____________     ______          F.3d ___, ___ (7th Cir. 1994) [1994 U.S. App. LEXIS 5408, at * 6-          7 (7th Cir. Mar. 23, 1994)].                                           7          the MMS statute in 1986, see Anti-Drug Abuse Act of 1986, Pub. L.          ___ ___ _______ __ ____  ___          99-570,  100 Stat. 3207 (1986), that the pivotal term "mixture or          substance containing a detectable amount" of controlled substance          required the sentencing court to include the entire weight of the                                                       ______ ______          LSD and its carrier medium.  Chapman, 500 U.S. at 461  ("Congress              ___                      _______          adopted a 'market-oriented' approach to punishing  drug traffick-          ing," and  intended courts  to sentence defendants  "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.").                                           III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    Until the  Supreme Court  or the Congress  revisits the          issue,  Chapman  governs the  meaning  of  the  term "mixture  or                  _______          substance" in  21  U.S.C.   841(b)(1)(B)(v),  as  the  Commission          itself acknowledged when it promulgated Amendment 488 in November          1993:   "Nonetheless,  this  [new Guidelines]  approach does  not          override  the applicability  of  'mixture or  substance' for  the          purpose of applying any  mandatory minimum sentence (see Chapman;                                                               ___ _______             5G1.1(b))."   U.S.S.G.    2D1.1, comment.  (backg'd.). (n.18).          Without more      and there is no more     we conclude that  Con-          gress simply acquiesced in the restrictive reach of Amendment 488          duly noted by the Commission in application note 18.  Id.                                                                 ___                                          8                    Affirmed.                    Affirmed.                    ________                                          9
