

                      [NOT FOR PUBLICATION]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-
