                  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 &amp; 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

                            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

                            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

                            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.
                  

                                9
