
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-2272                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     PAUL DIMEO,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             John A.  Ciraldo, with whom  Perkins, Thompson, Hinckley  & Keddy             ________________             ____________________________________        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.         ________________                                                                                      ____________________                                     July 7, 1994                                                                                      ____________________                    CYR, Circuit Judge.   After the district  court, acting                    CYR, Circuit Judge                         _____________          sua sponte, reduced its original sentence in response to a recent          ___ ______          amendment to the  Sentencing Guidelines,  see United States  Sen-                                                    ___          tencing   Commission,  Guidelines   Manual,      2D1.1,  comment.                                 ___________________          (backg'd.) (Nov. 1993), defendant Paul Dimeo appealed the revised          sentence  on the  ground that  the  district court  erred in  not          reducing the prison  term below the minimum  mandated by statute.          Finding no error, we affirm.                     Appellant Dimeo pled guilty to conspiring to distribute          more than one gram of lysergic acid diethylamide ("LSD").  See 21                                                                     ___          U.S.C.     841(a)(1) and 846.   For purposes of  determining both          the statutory mandatory  minimum sentence ("MMS"), see  21 U.S.C.                                                             ___            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 Guideline sentencing range          ("GSR"),  see U.S.S.G.    2D1.1(c)  (Nov.  1991),1  the  district                    ___          court included the entire weight of the paper carrier medium used          in distributing the 900 LSD doses.  See Chapman v. United States,                                              ___ _______    _____________          500  U.S. 453 (1991)  (construing "mixture  or substance,"  in 21          U.S.C.   841(b), as "requir[ing] the weight of the carrier medium          to be included").   The 63-month  prison term originally  imposed          under the  Guidelines (BOL:   26; CHC:   I;  GSR:   63-78 months)          trumped the five-year  MMS under 21 U.S.C.    841(b)(1)(B)(v) for                                        ____________________               1See United  States v.  Dimeo, 753 F.  Supp. 23, 26  (D. Me.                ___ ______________     _____          1990), aff'd, 946 F.2d 880 (1st Cir. 1991) (table).                 _____                                          2          distributing one gram or more of LSD.  See U.S.S.G.   5G1.1(c).                                                 ___                    Effective  November 1,  1993,  however, the  Sentencing          Commission amended U.S.S.G.    2D1.1, see 28 U.S.C.    944(p), by                                                ___          prescribing a less stringent (0.4 milligram per-dose) formula for          calculating LSD  quantity than  the regime  previously upheld  in          Chapman.   See U.S.S.G.   2D1.1, comment.  (backg'd.) (Nov. 1993)          _______    ___          (hereinafter, "Amendment 488").  As  the Commission provided that          Amendment 488 may be given retroactive effect consistent  with 18          U.S.C.   3582(c)(2),2 see United States v. Boot,     F.3d     ,                                  ___ _____________    ____  ___      ____  _           (1st Cir. 1994) [No. 93-2317, slip op. at 3-4 (1st Cir.  June 7,          1994)],  the district  court later  reduced the LSD  quantity for          Guidelines sentencing purposes from 6.25 grams to 0.36 of a gram,          and the GSR to 21-27 months, but did not  reduce Dimeo's sentence          below the five-year MMS, and Dimeo appealed.3                                         ____________________               2Section 3582(c)(2) provides that the district court, on its          own motion,  may reduce a  sentence imposed under  the Sentencing                       ___          Guidelines if  "such a  reduction is  consistent with  applicable                     __          policy  statements  issued  by the  Sentencing  Commission."   18          U.S.C.   3582(c)(2).                 3On November  1, 1993,  the United  States Probation  Office          recommended a reduction in Dimeo's guideline sentence pursuant to          Amendment  488 but advised against any reduction in the five-year          MMS.  The  district court received no input from  the parties and          conducted no  hearing.  Dimeo's  former counsel, even  though not          reappointed  until after  the  district  court  had  entered  its          ___________          revised  sentence  on  November  15,  1993, nevertheless  alertly          contacted the  clerk of the  district court on October  27, 1993,          inquiring as  to the procedure  for resolving issues  relating to          any  reduction  in Dimeo's  sentence.   For whatever  reason, the          record on  appeal reflects no  written or oral  presentation from          Dimeo in the  district court either before or  after the sentence          reduction.  Thus,  the claims Dimeo asserts on  appeal were never          presented to the  district court, and are deemed  waived.  United                                                                     ______          States  v. Elwell,  984 F.2d  1289, 1298  (1st Cir.)  (claims not          ______     ______                                          3                    On appeal,  Dimeo  claims for  the first  time that  by          permitting Amendment  488 to  take effect  Congress signaled  its          intention that LSD  weight be calculated  under a unitary  method          for  both  GSR and  MMS  purposes, thereby  implicitly overruling          Chapman.4   Further,  also for  the first  time, Dimeo  asserts a          _______          constitutional challenge to  the coexistence of these  two diver-          gent regimes  for determining LSD  quantity, as violative  of due          process  and equal  protection.   Even if  these claims  were not          deemed waived  in the  district court for  failure to  raise them          either before or  after entry of the revised  judgment, see supra                                                                  ___ _____          note 3, they fail for other reasons.                      A  sentence  reduction  pursuant  to Amendment  488  is          expressly conditioned on conformance with 18 U.S.C.   3582(c)(2),          which confers  no power on the district court to reduce a minimum          sentence mandated by statute.  Furthermore, as discussed in Boot,                                                                      ____          slip op.  at 7, a MMS reduction  would exceed the power conferred          upon  the district court under 18  U.S.C.   3582(c)(2), see supra                                                                  ___ _____                                        ____________________          raised in  district court are  waived), cert. denied, 113  S. Ct.                                                  _____ ______          2429 (1993).                 4This claim  is foreclosed by  our recent decision  in Boot,                                                                      ____          slip  op. at 7.  We  note, further, that the constitutional chal-          lenge belatedly  asserted  by appellant  may entail  considerable          risk.  Chapman conclusively  establishes the constitutionality of                 _______          the "mixture  or substance"  methodology for  MMS purposes.   Id.                                                                        ___          Were a court to conclude  that the "mixture or substance" method-          ology  and  the  0.4 milligram  per-dose  formula  cannot coexist          constitutionally, it seems virtually certain  that Amendment 488,          rather  than the  "mixture or  substance"  methodology upheld  in          Chapman, would  be struck down,  and with it the  Guidelines sen-          _______          tence reduction.  But see infra at pp. 4-5.                            ___ ___ _____                                          4          note  2,  since  it  would be  inconsistent  with  the Sentencing          Commission policy statement accompanying  Amendment 488:   "None-          theless, 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.).  See also Boot, slip                                                        ___ ____ ____          op. at 7.                    Affirmed.                     Affirmed.                    ________                                                                  5
