                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                           F I L E D
                           REVISED APRIL 27, 2006
                                                                            April 21, 2006
                     UNITED STATES COURT OF APPEALS
                          for the Fifth Circuit                         Charles R. Fulbruge III
                                                                                Clerk


                                No. 04-41721


                          UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,


                                    VERSUS


                             DAVID HENRY TREFT,

                                                        Defendant-Appellant.




            Appeal from the United States District Court
                  for the Eastern District of Texas




Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.

DeMOSS, Circuit Judge:

     On June 1, 2004, a jury found David Henry Treft guilty of

knowingly     or    intentionally      manufacturing,        distributing,          or

dispensing,    or    possessing     with     the    intent    to       manufacture,

distribute,    or   dispense,    500   grams   or    more    of    a    mixture     or

substance containing a detectable amount of methamphetamine, its

salts, isomers, or salts of its isomers in violation of 21 U.S.C.

§   841(a)(1).      The    presentence     investigation       report        (“PSR”)
recommended a base offense level of 30 for Treft under the United

States Sentencing Guidelines (“U.S.S.G.”), based on the discovery

of 36 empty pseudoephedrine pill packages — which, according to the

PSR, contained 77.76 grams of pseudoephedrine when full — in

Treft’s trash and 99.9 grams of marijuana in Treft’s home. The PSR

further recommended that the court not consider the 4128.2 grams of

liquid containing trace amounts of methamphetamine also found in

Treft’s home for sentencing purposes pursuant to note 1 of the

commentary to § 2D1.1, although the PSR noted that the same liquid

should be counted for minimum mandatory sentencing purposes under

21 U.S.C. § 841(b). Treft objected to the PSR’s estimate regarding

pseudoephedrine and to its use of facts not found by a jury beyond

all reasonable doubt in calculating his sentence. He also requested

that the district court grant a two-level adjustment pursuant to

U.S.S.G. § 2D1.1(b)(6) for satisfying the criteria in § 5C1.2, the

“safety valve” provision. The district court rejected Treft’s

objections and his request for a safety valve adjustment and

sentenced him to the statutory minimum of 10 years’ imprisonment

under 21 U.S.C. § 841(b)(1)(A). Treft appealed, challenging his

conviction and sentence. For the following reasons, we affirm both.

                     I. Facts and Proceedings

     In late 2002, an individual complained to the police about

chemical odors coming from Treft’s home. The police subsequently

searched Treft’s trash and found thirty-six empty pseudoephedrine

packages, peeled lithium batteries, and other items used in the

                                2
production of methamphetamine. Based on this information, the

police obtained a search warrant and searched Treft’s residence.

There, the police discovered 0.66 grams of methamphetamine, 99.9

grams of marijuana, 4128.2 grams of a liquid that tested positive

for methamphetamine, $13,000 in cash, and other evidence of an

active methamphetamine laboratory.

     On December 10, 2003, a federal grand jury returned a one-

count indictment, charging Treft with knowingly or intentionally

manufacturing, distributing, or dispensing, or possessing with the

intent to manufacture, distribute, or dispense, 50 grams or more of

methamphetamine, its salts, isomers, or salts of its isomers and

500 grams or more of a mixture or substance containing a detectable

amount of methamphetamine, its salts, isomers, or salts of its

isomers, all in violation of 21 U.S.C. § 841(a)(1). Treft plead not

guilty to the charges against him and proceeded to trial. At the

conclusion of the Government’s case, Treft moved for a judgment of

acquittal, which the district court granted as to the 50 grams of

pure methamphetamine but denied as to the 500 grams of a mixture or

substance containing a detectable amount of methamphetamine. The

jury found Treft guilty of the remaining charge, and the court

ordered the preparation of a PSR for sentencing.

     The PSR prepared for sentencing recommended a base offense

level of 30 for Treft under U.S.S.G. § 2D1.1, based on the

discovery of 36 empty pseudoephedrine pill packages, which once

contained 77.76 grams of pseudoephedrine, in Treft’s trash and 99.9

                                3
grams of marijuana in Treft’s home. The 4128.2 grams of liquid

containing traces of methamphetamine also found in Treft’s home

were not considered for sentencing purposes pursuant to note 1 of

the commentary to U.S.S.G. § 2D1.1,1 although that same liquid was

considered for purposes of 21 U.S.C. § 841(b).2 After discussing

Treft’s criminal history and offender characteristics, the PSR

concluded that the guideline range for sentencing was 120 to 121

months, considering the statutory minimum term of imprisonment

under 21 U.S.C. § 841(b) of 10 years and the maximum term of

imprisonment under the guidelines of 121 months. Treft submitted

written   objections       to   the    PSR,   complaining   that    the   PSR’s

calculation of the amount of pseudoephedrine attributable to him

was unreasonable and that the PSR should not have incorporated

facts   not   found   by    a   jury    beyond   all   reasonable    doubt   in



  1
    Note 1 reads, in substantial part,
   “Mixture or substance” as used in this guideline has the same
   meaning as in 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.
U.S.S.G. § 2D1.1 cmt. n.1 (2003) (emphasis added). The district
court used the 2003 U.S. Sentencing Guidelines Manual in sentencing
Treft.
  2
    Section 841(b)(1)(A) provides, in part,
   In the case of a violation of subsection (a) of this section
   involving . . . 500 grams or more of a mixture or substance
   containing a detectable amount of methamphetamine, its salts,
   isomers, or salts of its isomers; such person shall be
   sentenced to a term of imprisonment which may not be less than
   10 years or more than life . . . .
21 U.S.C. § 841(b)(1)(A) (2000) (emphasis added).

                                         4
calculating his sentence. He also requested that the district court

grant a two-level adjustment pursuant to U.S.S.G. § 2D1.1(b)(6) for

satisfying the criteria in § 5C1.2, the “safety valve” provision.

The district court rejected Treft’s objections and his request for

a safety valve adjustment and, adopting the PSR’s recommendations,

sentenced      him   to   10   years’       imprisonment.   Treft   appealed,

challenging his conviction and sentence.3

         On appeal, Treft argues (1) that the evidence is insufficient

to support his conviction, (2) that he was sentenced in violation

of the Sixth Amendment, and (3) that the district court erred in

denying Treft’s request for safety valve relief.

                               II. Discussion

A.       Sufficiency of the Evidence

         In an ordinary sufficiency of the evidence case, we review a

defendant’s claim that the evidence is insufficient to support his

conviction in the light most favorable to the verdict, accepting

all credibility choices and reasonable inferences made by the jury.

United States v. Wise, 221 F.3d 140, 147 (5th Cir. 2000); United

States v. Lage, 183 F.3d 374, 382 (5th Cir. 1999). We must uphold

the conviction if a rational jury could have found that the


     3
   Treft’s original appeal was not timely filed, and this Court
remanded the case to the district court for a determination of
whether his failure to file in a timely manner was excusable.
United States v. Treft, No. 04-41721 (5th Cir. Jan. 5, 2005). The
district court found the untimely filing excusable and returned the
case to this Court for further proceedings. United States v. Treft,
No. 4:03-CR-190 (E.D. Tex. Feb. 23, 2005).

                                        5
government proved the essential elements of the crime charged

beyond a reasonable doubt. Wise, 221 F.3d at 147; Lage, 183 F.3d at

382. This standard of review is the same regardless of whether the

evidence is direct or circumstantial. Wise, 221 F.3d at 147; Lage,

183 F.3d at 382.

      However, this is not an ordinary sufficiency of the evidence

case.   Treft    does   not    challenge       the     factual    basis     for    his

conviction; he challenges the legal basis for attributing 500 grams

of a mixture or substance containing methamphetamine to him.

According   to    Treft,      (1)   the       liquid    containing        traces    of

methamphetamine found in his home should not have been counted for

purposes of 21 U.S.C. § 841 because it was an unmarketable mixture

under Chapman v. United States, 500 U.S. 453 (1991), and (2) there

is insufficient evidence to support his conviction if that liquid

is not counted. Thus, this case hinges on a legal determination of

whether   Chapman’s     marketability         test   applies     in   §   841     cases

involving methamphetamine. We apply a de novo standard of review to

legal determinations, see United States v. Bellew, 369 F.3d 450,

452 (5th Cir. 2004), but where, as here, a defendant raises a legal

argument for the first time on appeal,4 we review for plain error,


  4
   Granted, Treft moved for a judgment of acquittal at trial, but
he did not raise his Chapman claim at that time. Moreover, he
dropped his motion for judgment of acquittal as to the 500 grams of
a mixture or substance containing methamphetamine once the district
court granted it as to the 50 grams of pure methamphetamine. Thus,
he failed to satisfy the purpose of requiring a defendant to object
to preserve an issue for review: “to call the court’s attention to

                                          6
see United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)

(en banc), abrogated in part by Johnson v. United States, 520 U.S.

461 (1997). We will find reversible error only if there was an

error, the error was clear or obvious, and the error affected the

defendant’s   substantial   rights.   Calverley,   37   F.3d   at   162-64

(citing United States v. Olano, 507 U.S. 725 (1993)).

     Because we find that there was no error committed regarding

the calculation of methamphetamine quantity in this case, we affirm

Treft’s conviction. The law in this Circuit is clear: the Chapman

marketability test does not apply when determining whether a liquid

is a mixture or substance containing methamphetamine under § 841.

See United States v. Anderson, 987 F.2d 251, 257-58 (5th Cir.

1993); United States v. Sherrod, 964 F.2d 1501, 1509-11 (5th Cir.

1992); see also United States v. Palacios-Molina, 7 F.3d 49, 52-53

(5th Cir. 1993) (“[I]t would appear that [Chapman’s] market-

oriented analysis was not intended to apply to methamphetamine or

PCP. In fact, this Circuit has recognized as much.”). Treft gives

no reason why we should change our law, other than citing a Seventh

Circuit case, United States v. Stewart, 361 F.3d 373, 377-80 (7th

Cir. 2004), that conflicts with Fifth Circuit precedent. Absent an




the potential error ‘in such a manner so that the district court
may correct itself and thus, obviate the need for [appellate]
review.’” United States v. Gutierrez-Ramirez, 405 F.3d 352, 355
(5th Cir. 2005) (quoting United States v. Rodriguez, 15 F.3d 408,
414 (5th Cir. 1994)).

                                  7
intervening Supreme Court or en banc decision or a change in

statutory law,5 we are bound to follow a prior panel's decision.

United States v. Anderson, 853 F.2d 313, 320 (5th Cir. 1988).

Accordingly, we find that Treft’s challenge to the calculation of

the quantity of methamphetamine found in his home must fail and,

therefore, affirm Treft’s conviction.

B.       Booker Challenge

         The record demonstrates, and the Government does not dispute,

that Treft made a Blakely objection at sentencing by objecting to

the district court’s adoption of the PSR, which used facts – empty

pseudoephedrine packages discovered in his trash and marijuana

discovered in his home – not found by a jury beyond a reasonable

doubt in calculating his sentence. Accordingly, Treft preserved his

Booker challenge and we review for harmless error. United States v.

Saldana, 427 F.3d 298, 313-14 (5th Cir. 2005) (holding that a

Booker challenge is preserved when a Blakely objection – even one

that is “less than crystal clear” – is made at sentencing).

         Harmless error, as defined by the Federal Rules of Criminal

Procedure, is “any error, defect, irregularity or variance that

does not affect substantial rights,” and such an error must be

     5
   The definition of “mixture of substance” in the commentary to
U.S.S.G. § 2D1.1 has been amended since we decided Anderson and
Sherrod, but the definition in 21 U.S.C. § 841(b) has not. Thus,
Anderson and Sherrod govern the definition of “mixture or
substance” under § 841. See Neal v. United States, 516 U.S. 284,
290 (1996); United States v. Morgan, 292 F.3d 460, 465 (5th Cir.
2002).

                                    8
disregarded. FED. R. CRIM. P. 52(a); Saldana, 427 F.3d at 314. The

government bears the burden of proving beyond a reasonable doubt

that an error is harmless. Saldana, 427 F.3d at 314. In the Booker

context, although it is plainly erroneous to sentence a defendant

based on facts not found by a jury beyond a reasonable doubt, id.;

United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), we

will affirm a defendant’s sentence if the government demonstrates

that the Booker error was harmless, Saldana, 427 F.3d at 314.

According to the Government in this case, the district court would

have sentenced Treft to ten years’ imprisonment under 21 U.S.C.

§    841(b)(1)(A)   regardless    of    whether   it   considered   the

pseudoephedrine packages discovered in his trash or the marijuana

discovered in his home. We agree with the Government. Section

841(b)(1)(A) mandates a minimum sentence of ten years’ imprisonment

for a conviction under § 841(a) involving 500 grams or more of a

mixture   or   substance   containing    methamphetamine.   Treft   was

convicted of such an offense. The district court could not have

sentenced Treft to anything less than ten years in prison. Thus,

any error committed by the court in considering facts not found by

a jury beyond all reasonable doubt was harmless.

C.    “Safety Valve” Adjustment

      We review a district court’s findings of fact regarding

U.S.S.G. § 5C1.2 for clear error and its legal interpretation of

that section de novo. United States v. Miller, 179 F.3d 961, 963-64


                                   9
(5th Cir. 1999).

      U.S.S.G. § 5C1.2, also known as the “safety valve” provision,

limits the applicability of statutory minimum sentences in certain

cases, specifically, those involving less culpable defendants who

fully assist the Government. U.S.S.G. § 5C1.2, cmt. (“Background”)

(2003);   Miller,   179   F.3d   at    964.   To   receive   safety   valve

protection, a defendant must satisfy the five criteria listed in

§ 5C1.2; if he does so, the court will “impose a sentence in

accordance with the applicable guidelines without regard to any

statutory minimum sentence.” U.S.S.G. § 5C1.2(a). Furthermore,

under § 2D1.1(b)(6), the court will decrease the defendant’s base

offense level by two levels once the safety valve is triggered.

U.S.S.G. § 2D1.1(b)(6). The district court in this case rejected

Treft’s request for a two-level safety valve adjustment, finding

that he had not satisfied the fifth criterion of the safety valve

provision.6 Treft argues on appeal that the district court erred

because it based its decision to reject his request on his failure

to plead guilty. According to Treft, the district court determined

that Treft had not satisfied § 5C1.2(a)(5) because he insisted on

going to trial.

      Section 5C1.2(a)(5) requires that “not later than the time of

the sentencing hearing, the defendant . . . truthfully provide[] to

the Government all information and evidence the defendant has

  6
   The parties do not dispute whether Treft satisfied the first
four criteria in § 5C1.2.

                                      10
concerning the offense or offenses that were part of the same

course   of   conduct   or   of   a    common     scheme   or   plan.”   U.S.S.G.

§ 5C1.2(a)(5). Although it may be the case, as Treft contends, that

a court may not deny safety valve relief simply because a defendant

pleads not guilty, that is not what the district court did in this

case. First, the record demonstrates that the district court went

to great lengths to determine whether Treft had provided the

information and evidence required by § 5C1.2(a)(5), even continuing

sentencing to November 5, 2004 to gather more information.7 And,

more importantly, the parties stipulated on the second day of

sentencing that Treft had not provided the Government with “all

information     or   evidence         regarding     Treft’s     methamphetamine

production/distribution.” (R. at 103.) Accordingly, Treft was not

eligible for a safety valve adjustment regardless of whether he

plead guilty or went to trial. The district court did not err in

denying Treft’s request for safety valve relief.

                              III. Conclusion

      Accordingly, we AFFIRM Treft’s conviction and sentence.




  7
   In fact, the record indicates that Treft’s safety valve argument
is disingenuous because the district court never stated that it was
basing its safety valve decision on Treft’s plea of not guilty.
Rather, the district court simply indicated that it would be a rare
case in which a defendant both plead not guilty and provided the
government with all the information and evidence required by
§ 5C1.2(a)(5); the court did not state that such a case could never
exist.

                                        11
PRISCILLA R. OWEN, Circuit Judge, concurring:



      I join the court’s opinion regarding its disposition of the

Sixth Amendment and “safety valve” issues.         I additionally agree

that based on binding precedent in this circuit, the district court

properly calculated the amount of methamphetamine attributable to

Treft in imposing the minimum statutory sentence of ten years under

21 U.S.C. § 841(b)(1)(A)(viii).1         However, I write separately

because I respectfully suggest that the court, en banc, should

reconsider its construction of 21 U.S.C. § 841(b)(1)(A)(viii) and

its interpretation of the Supreme Court’s decision in Chapman v.

United States.2    How the Supreme Court would apply the rationale of

Chapman to the facts before us is far from clear, but it at least

seems   clear   that   the   “market-oriented   approach”   discussed   in

Chapman applies to methamphetamine the same way that it applied to

LSD in Chapman.3

      To me, the question distills to this:        in light of Chapman,


  1
   The statute provides: “In the case of a violation of subsection
(a) of this section involving . . . 50 grams or more of
methamphetamine, its salts, isomers, and salts of its isomers or
500 grams or more of a mixture or substance containing a detectable
amount of methamphetamine, it salts, isomers, or salts of its
isomers; such person shall be sentenced to a term of imprisonment
which may not be less than 10 years . . . .”
  2
   500 U.S. 453 (1991).
  3
   See id. at 461 (discussing the method for calculating the weight
of an LSD mixture or substance for purposes of determining the
appropriate statutory penalty for illegal distribution of LSD).

                                    12
would the Supreme Court hold that only the weight of the illegal

drug can be used in sentencing when it is a small percentage of an

unusable, unmarketable mixture that resulted from a “bad batch” or

an interruption in the manufacturing process, or conversely, would

the Court hold that a “bad batch” or substance seized in mid-

processing      is    a     mixture     within    the     meaning     of    section

841(b)(1)(A)(viii) either because the mixture is a “tool of the

trade” or because the illegal drug chemically bonded or was mixed

with the other material.         On balance, it seems the plain meaning of

the statute should govern.            In the case before us, the “bad batch”

was   a   mixture     weighing    500    grams    or    more   that   contained    a

detectable amount of methamphetamine, and therefore, the statutory

minimum sentence applies.         Whether due process would be implicated

is another question left open in Chapman, but it is not a question

raised in this appeal.

                                          I

      Officers arrested Treft at his home after finding considerable

evidence that he was manufacturing methamphetamine. They found .66

grams of methamphetamine in finished form and two jars containing

a liquid mixture that weighed 4,128.8 grams. Testing revealed that

the   mixture    in    the    jars    contained    less    than     two    grams   of

methamphetamine.          Treft told the officers that the liquid was “a

batch that didn’t turn out,” and the evidence was undisputed that

the 4,128.8 grams of liquid was unusable and unmarketable.


                                         13
          Treft’s case proceeded to a jury trial, and the jury was

instructed that in order to find Treft guilty, they had to find

that “the quantity of the substance was at least 500 grams or more

of       a mixture   or   substance    containing   a   detectable   amount    of

methamphetamine.”         During deliberations, the jury sent the judge a

note inquiring whether the mixture could be 500 grams or more or

whether there had to be 500 grams of methamphetamine.            The district

court       responded     that   the    “substance”     need   not     be     pure

methamphetamine and that the “mixture or substance” must be at

least 500 grams or more.         The jury then found Treft guilty.            The

district court imposed a 120-month sentence, the minimum sentence

required under 21 U.S.C. § 841(b)(1)(A)(viii).

                                         II

          Treft contends that the evidence is insufficient to support

the jury’s finding and thus the statutory minimum sentence. If the

two grams or less of methamphetamine in the 4,128.8-gram mixture is

all that can be counted, then Treft is correct.                  The outcome

depends on the construction of the phrase “500 grams or more of a

mixture       or     substance   containing    a    detectable       amount    of

methamphetamine, its salts, isomers, or salts of its isomers,”

which is found in section 841(b)(1)(A)(viii), a minimum sentencing

provision.4


     4
   21 U.S.C. § 841(b)(1)(A)(viii) (prescribing penalties for
manufacturing,    distributing, dispensing    or   possessing
methamphetamine).

                                         14
       In Chapman, the Supreme Court construed an almost identical

phrase used in another sentencing provision in section 841(b),

prescribing a minimum sentence of five years for distributing one

or more grams “‘of a mixture or substance containing a detectable

amount of’” LSD.5       The defendants in Chapman sold 10 sheets of

blotter paper containing 10,000 doses of LSD.                 The LSD alone

weighed about 50 milligrams, but if the weight of the paper was

included, the weight was 5.7 grams.           The Supreme Court held that

the weight of the paper should be included.6            The Court discussed

the anomalous results that could obtain from its conclusion that

section 841(b) required the inclusion of a drug carrier medium

(such as blotter paper or a sugar cube), but was nevertheless

convinced     that   Congress   intended     those   results.7    The    Court

explained that “[s]o long as it contains a detectable amount, the

entire mixture or substance is to be weighed when calculating the

sentence.”8 The Court also concluded, “Congress adopted a ‘market-

oriented’ approach to punishing drug trafficking, under which the

total quantity of what is distributed, rather than the amount of

pure   drug   involved,   is    used   to   determine   the   length    of   the



  5
   Chapman, 500 U.S. at 455 (quoting and construing 21 U.S.C.
§ 841(b)(1)(B)(v)).
  6
   Id. at 468.
  7
   Id. at 458.
  8
   Id. at 459.

                                       15
sentence.”9

        During the course of the opinion in Chapman, the Supreme Court

contrasted the subpart of section 841(b) addressing sentences

involving LSD with sentences involving PCP or methamphetamine. The

Court said,

        The statute refers to a “mixture or substance containing
        a detectable amount.”      So long as it contains a
        detectable amount, the entire mixture or substance is to
        be weighed when calculating the sentence.

             This reading is confirmed by the structure of the
        statute.    With respect to various drugs, including
        heroin, cocaine, and LSD, it provides for mandatory
        minimum sentences for crimes involving certain weights of
        a “mixture or substance containing a detectable amount”
        of the drugs.    With respect to other drugs, however,
        namely phencyclidine (PCP) or methamphetamine, it
        provides for a mandatory minimum sentence based either on
        the weight of a mixture or substance containing a
        detectable amount of the drug, or on lower weights of
        pure   PCP    or   methamphetamine.       For    example,
        § 841(b)(1)(A)(iv) provides for a mandatory 10-year
        minimum sentence for any person who distributes “100
        grams or more of . . . PCP . . . or 1 kilogram or more of
        a mixture or substance containing a detectable amount of
        . . . PCP . . . .”     Thus, with respect to these two
        drugs, Congress clearly distinguished between the pure
        drug and a “mixture or substance containing a detectable
        amount of” the pure drug. But with respect to drugs such
        as LSD, which petitioners distributed, Congress declared
        that sentences should be based exclusively on the weight
        of the “mixture or substance.”     Congress knew how to
        indicate that the weight of the pure drug was to be used
        to determine the sentence, and did not make that
        distinction with respect to LSD.10

        The foregoing contrast forms the basis of the Fifth Circuit’s



  9
   Id. at 461.
  10
       Id. at 459.

                                   16
conclusion that the market-oriented approach discussed in Chapman

does not apply to methamphetamine or PCP offenses.11 I respectfully

submit that Chapman does not require such a conclusion.                        The

Supreme Court was simply saying that with regard to methamphetamine

or    PCP, a        statutory   minimum   sentence    applies   if   the   offense

involved either a certain weight of a pure drug or a mixture of a

specified weight containing a detectable amount of a drug.                      In

reality, methamphetamine will rarely be entirely pure.12                       The

statutory minimum sentence applies if the offense involves “50

grams or more of methamphetamine . . . or 500 grams or more of a

mixture        or     substance    containing     a   detectable      amount    of

methamphetamine.”13        A substance that is 99% methamphetamine and 1%

inert        material   weighing   51     grams   would   trigger    the   minimum

sentence, regardless of whether it is considered “methamphetamine”

or “a mixture or substance.”              As the Seventh Circuit has pointed


     11
    See, e.g., United States v. Palacios-Molina, 7 F.3d 49, 53 (5th
Cir. 1993) (observing in dicta that “the Supreme Court embarked on
its market-oriented analysis only after specifically recognizing
that the drugs methamphetamine and PCP were singled out for
different treatment under the Guidelines. . . . [I]t would appear
that the market-oriented analysis was not intended to apply to
methamphetamine or PCP” (citation omitted)); United States v.
Sherrod, 964 F.2d 1501, 1510 (5th Cir. 1992) (“[I]t does not appear
that the Chapman Court intended its market-oriented analysis to be
applied to methamphetamine or PCP.”).
     12
    See United States v. Blake, 116 F.3d 1202, 1203-04 (7th Cir.
1997) (discussing the chemical composition of methamphetamine and
the likelihood that most samples of the drug will contain
contaminants).
     13
          21 U.S.C. § 841(b)(1)(A)(viii).

                                           17
out,     “[a]s   a     practical    matter,     this   means    that    the   higher

thresholds       for    mixtures    will    matter     only    when    the    PCP   or

methamphetamine         mixture    contains     less   than    10   percent   active

ingredient.”14

        In determining what is or is not a “mixture or substance,” the

same principles apply, including the market-oriented approach,

regardless of whether the drug is methamphetamine, PCP, LSD or one

of the other drugs identified in section 841(b). Congress used the

same phrase, “[specified weight] or more of a mixture or substance

containing a detectable amount of [specified drug],” at least

sixteen times in section 841(b).15              Only the quantity and the drug

vary among those subsections. There is no indication from the text

of section 841(b) or from Chapman that Congress intended the same

phrase to have different meanings, depending on the type of drug to

which the phrase was appended.

        The question not clearly resolved by Chapman is how its

rationale applies when detectable amounts of a drug are contained



  14
       Blake, 116 F.3d at 1204.
  15
    21 U.S.C. § 841(b)(1)(A)(i) (heroin); id. § 841(b)(1)(A)(ii)
(coca leaves, cocaine, and other drugs); id. § 841(b)(1)(A)(iv)
(PCP); id. § 841(b)(1)(A)(v) (LSD); id. § 841(b)(1)(A)(vi) (N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]    propanamide);    id.
§   841(b)(1)(A)(vii)   (marijuana);  id.   §   841(b)(1)(A)(viii)
(methamphetamine);    id.   §   841(b)(1)(B)(i)    (heroin);   id.
§ 841(b)(1)(B)(ii) (coca leaves, cocaine, and other drugs); id.
§ 841(b)(1)(B)(iv) (PCP); id. § 841(b)(1)(B)(v) (LSD); id.
§ 841(b)(1)(B)(vi) (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide); id. § 841(b)(1)(viii) (methamphetamine).

                                           18
in an unmarketable mixture or substance.     Not only did the Supreme

Court say that “Congress adopted a ‘market-oriented’ approach to

punishing drug trafficking, under which the total quantity of what

is distributed, rather than the amount of pure drug involved, is

used to determine the length of the sentence,”16 the Court also said

that the quantity of drugs is to be measured by the “‘street

weight’”:

        The penalty scheme set out in the Anti-Drug Abuse Act of
        1986 is intended to punish severely large-volume drug
        traffickers at any level. . . . It assigns more severe
        penalties to the distribution of larger quantities of
        drugs. By measuring the quantity of the drugs according
        to the “street weight” of the drugs in the diluted form
        in which they are sold, rather than according to the net
        weight of the active component, the statute and the
        Sentencing Guidelines increase the penalty for persons
        who possess large quantities of drugs, regardless of
        their purity. That is a rational sentencing scheme.17

        The discussion of a market-oriented approach and the street

weight of drugs has led some circuits to conclude that only the

amount of a drug in an unusable or nonmarketable mixture containing

detectable amounts of a drug should be used for sentencing purposes

under section 841(b)’s “mixture or substance” provisions, or that

the sentence should be based on the amount of the drug that likely

could have been manufactured.18        This is a logical, reasonable

  16
       United States v. Chapman, 500 U.S. 453, 461 (1991).
  17
       Id. at 465.
  18
    See, e.g., United States v. Stewart, 361 F.3d 373, 382 (7th Cir.
2004) (holding that only the amount of pure drug contained in an
825-gram solution generated during a thwarted attempt to produce
methamphetamine or the amount of usable drug likely to be produced

                                  19
method of sentencing, but it is not necessarily the scheme section

841(b), as interpreted by Chapman, intended.   As this circuit has

noted, there are passages in Chapman that support the conclusion

that the entire amount of a mixture or substance containing a

detectable amount of a drug should be used for sentencing purposes

even if the mixture or substance is waste or unmarketable.19   The


after the solution was fully processed could be used in sentencing
under the statute); United States v. Jennings, 945 F.2d 129, 136
(6th Cir. 1991) (holding, where the mixture was seized during
processing, “[i]t seems fortuitous, and unwarranted by the statute,
to hold the defendants punishable for the entire weight of the
mixture when they could have neither produced that amount of
methamphetamine    nor   distributed    the    mixture   containing
methamphetamine”); cf. United States v. Gori, 324 F.3d 234, 238 (3d
Cir. 2003) (holding in a methamphetamine case that “whether a drug
plus its carrier is a mixture turns not on the purity of the
controlled substance contained therein, but rather on how
‘combined’ the substances are and whether the impure drug is
‘marketable’”) (citation omitted).      But see United States v.
Sprague, 135 F.3d 1301, 1306 n.4 (9th Cir. 1998) (stating “[w]e
held that a defendant should be given the mandatory minimum
sentence under Section 841 based on the entire weight of a liquid
solution containing methamphetamine and by-products of the
production process”); United States v. Richards, 87 F.3d 1152, 1158
(10th Cir. 1996) (en banc) (holding that unusable and unmarketable
portion of a methamphetamine mixture seized in the midst of
manufacturing should be included for sentencing purposes under
section 841(b)); United States v. Innie, 7 F.3d 840, 845, 847 (9th
Cir.   1993)   (holding   that   entire    weight   of   unfinished
methamphetamine mixture should be included even though it was
poisonous if ingested).
  19
    United States v. Anderson, 987 F.2d 251, 257-58 (5th Cir. 1993)
(rejecting argument that a sentence for attempting to manufacture
methamphetamine should be based on the amount of the pure drug, not
on the weight of the substance that contained a detectable amount,
and observing that “the argument now advanced by Anderson [is]
inconsistent with § 841(b), the sentencing guidelines, and passages
in Chapman”); United States v. Walker, 960 F.2d 409, 412 (5th Cir.
1992) (concluding that “much of the language in Chapman supports”
the conclusion that “the total weight of a liquid substance

                                20
Supreme Court said in Chapman, “So long as it contains a detectable

amount, the entire mixture or substance is to be weighed when

calculating the sentence,” and “if the carrier is a ‘mixture or

substance containing a detectable amount of the drug,’ then under

the language of the statute the weight of the mixture or substance,

and not the weight of the pure drug, is controlling.”20            The Court

also held in Chapman that the terms “mixture” and “substance” “must

be given their ordinary meaning” and discussed the definition of

“mixture” found in a dictionary.21          The Court additionally observed

that     “[b]lotter   paper   makes   LSD    easier   to   transport,   store,

conceal, and sell.     It is a tool of the trade for those who traffic

in the drug, and therefore it was rational for Congress to set

penalties based on this chosen tool.”22            “Bad batches” and waste

products containing small amounts of illegal drugs would seem just

as much a “tool of the trade” as the blotter paper.23



containing methamphetamine” should be used in calculating a
sentence “despite [the] fact that most of the liquid was waste
material”).
  20
       Chapman, 500 U.S. at 459, 460.
  21
    Id. at 462 (citing WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1449
(1986)).
  22
       Id. at 466.
  23
    See, e.g. United States v. Innie, 7 F.3d 840, 845, 847 (9th
Cir. 1993) (concluding that entire mixture seized during
manufacturing,   which    contained    four   to   eight    percent
methamphetamine and would be poisonous if ingested, “can be said to
facilitate   the    distribution    of   methamphetamine    because
methamphetamine could not have been produced without it”).

                                      21
        The Chapman decision seems to have focused primarily, if not

exclusively, on the distribution of drugs.           The defendants in that

case were convicted of distributing, not manufacturing, an illegal

drug.24 The arguments and examples the defendants put forth focused

on distributing, not manufacturing, as did the Court’s responses to

those arguments and examples.              Perhaps this accounts for the

Court’s statements regarding a market-oriented approach and the

street weight of drugs and the Court’s failure to discuss the

implications those concepts might have when a conviction involved

manufacturing.25     But we can only speculate on that score.

        Because Chapman does not resolve the question of how to treat

unmarketable mixtures created in a manufacturing process with

clarity, we are left with the statute as written.             Section 841(b)

does not make any distinction between manufacturing and marketing

drugs.      Both   are   crimes   under    section   841(a)   for   which   the

punishments in section 841(b) are imposed.              If a substance or

mixture contains a detectable amount of a drug, then the weight of

that substance or mixture should be used for sentencing purposes



  24
       Chapman, 500 U.S. at 455-56.
  25
    But see United States v. Stewart, 361 F.3d 373, 381 (7th Cir.
2004) (rejecting the Government’s argument that unusable portions
of a solution should be included when the conviction was for
manufacturing and holding that “[i]t would be illogical to include
the entire weight of the 825-gram solution in the drug-quantity –
thus subjecting [the defendant] to a mandatory minimum sentence –
merely because [the defendant] was caught after he had combined the
raw materials, but before he had produced usable methamphetamine”).

                                      22
even if it is a “bad batch” and unusable.

       The Sentencing Commission amended the Guidelines after the

Chapman   decision   to   make   it   clear   that   the   weight   of   waste

materials containing a detectable amount of a drug should not be

included in determining the base offense level.26            The Guidelines

were also amended to provide that the weight of an LSD carrier

medium, such as blotter paper, cannot be used to determine an

offender’s base offense level.27           The Supreme Court has held,

however, that its interpretation of section 841(b) in Chapman

remains unchanged by Commission amendments.28          To the extent there

are conflicts between section 841(b) as interpreted by the Supreme


  26
    U.S. SENTENCING GUIDELINES MANUAL § 2D1.1, cmt. n.1 (2005) (defining
“mixture or substance” to exclude “materials that must be separated
from the controlled substance before the controlled substance can
be used” such as “waste water from an illicit laboratory used to
manufacture a controlled substance”); id. app. C, amend. 484
(effective November 1, 1993) (citing United States v. Sherrod, 964
F.2d 1501 (5th Cir. 1992), as a case the amendments were addressing
and stating “chemicals seized before the end of processing are also
not usable in that form because further processing must take place
before they can be used”); see also United States v. Levay, 76 F.3d
671, 673 (5th Cir. 1996) (holding that Amendment 484 to the
Guidelines “specifically addresses precursor chemicals mixed with
controlled substances,” and therefore only 5.96 grams of a mixture
weighing 9,892 grams could be used to calculate the base offense
level because “the disputed material here has to be separated from
the remaining liquid before it can be used”).
  27
    Id. § 2D1.1(c), cmt. n.(H) (2005); see also id. app. C, amend.
488 (effective November 1, 1993).
  28
    Neal v. United States, 516 U.S. 284, 290 (1996) (“[W]e conclude
that the Commission’s choice of an alternative methodology for
weighing LSD does not alter our interpretation of the statute in
Chapman. In any event, principles of stare decisis require that we
adhere to our earlier decision.”).

                                      23
Court and the Guidelines, the mandatory minimums in section 841(b)

govern.29

       The Court today reaches the correct result, and I concur.




  29
    Id. at 296 (“We hold that § 841(b)(1) directs a sentencing
court to take into account the actual weight of the blotter paper
with its absorbed LSD, even though the Sentencing Guidelines
require a different method of calculating the weight of an LSD
mixture or substance.”); see also United States v. Morgan, 292 F.3d
460, 465 (5th Cir. 2002) (“Amendments to the Guidelines do not
override Chapman for the purpose of statutory mandatory
minimums.”).

                                 24
