                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-8-2003

USA v. Gori
Precedential or Non-Precedential: Precedential

Docket 02-2409




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"USA v. Gori" (2003). 2003 Decisions. Paper 597.
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                          PRECEDENTIAL

                                      Filed April 8, 2003

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                    No. 02-2409


          UNITED STATES OF AMERICA
                         v.
              VINCENT LOUIS GORI,
                              Vincent Gori,
                                      Appellant

    Appeal from the United States District Court
            for the District of New Jersey
     (D.C. Criminal Action No. 00-cr-00247-5)
      District Judge: Honorable Joel A. Pisano

    Submitted Under Third Circuit LAR 34.1(a)
                March 14, 2003
Before: BECKER, Chief Judge, RENDELL and AMBRO,
                  Circuit Judges

            (Opinion filed April 8, 2003)
                  Justin T. Loughry, Esquire
                  Loughry and Lindsay, L.L.C.
                  714 East Main Street, Suite 1A
                  Moorestown, New Jersey 08057
                    Attorney for Appellant
                                   2


                          Christopher J. Christie
                           United States Attorney
                          George S. Leone
                           Chief, Appeals Division
                          Sabrina G. Comizzoli, Esquire
                          Office of the United States Attorney
                          970 Broad Street
                          Newark, New Jersey 07102-2535
                            Attorneys for Appellee


                   OPINION OF THE COURT

AMBRO, Circuit Judge:
  Vincent Gori challenges the sentence imposed for his
involvement in a conspiracy to distribute a controlled
substance. We affirm the District Court.

                                   I.
   The Government charged Gori, under 21 U.S.C. § 846,
with one count of conspiracy to violate 21 U.S.C.
§ 841(a)(1), which makes it illegal “to manufacture,
distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled
substance.”1 Although the indictment did not allege the
precise weight of drugs involved in the conspiracy, it
charged Gori with “intent to distribute more than 500
grams of methamphetamine.” 21 U.S.C. § 841(b)(1)(A)(viii)
mandates a minimum ten-year sentence for distributing
more than 500 grams of a “mixture or substance containing
a detectable amount of methamphetamine, its salts,
isomers, or salts of its isomers.”
   Gori pled guilty, but specifically refused to stipulate to
the amount of drugs involved. He waived his right to a jury
trial on this issue and agreed that the District Court should

1. 21 U.S.C. § 846 states that conspiracy to violate, inter alia, § 841
“shall be subject to the same penalties as those prescribed for [§ 841],
the commission of which was the object of the . . . conspiracy.”
                             3


determine, beyond a reasonable doubt, the amount of
methamphetamine       he   distributed.  Based      on    the
Government’s evidence of eight transactions, in which Gori
sold a total of 969.8 grams of a mixture containing
methamphetamine to an undercover law-enforcement
officer, the Court found that more than 500 grams of a
mixture containing methamphetamine were involved in the
conspiracy. Therefore, it sentenced Gori to the statutory
minimum of ten years under § 841(b)(1)(A)(viii). In addition,
the Court refused to grant Gori’s motion for a downward
departure from the United States Sentencing Guidelines
(“U.S.S.G.”) based on his claim that the average purity of
the mixtures he sold in those eight transactions was only
2.7 percent. This appeal followed.

                             II.
A.   Due process
   Gori contends that his indictment did not specifically
allege the amount of methamphetamine involved in the
conspiracy, thereby denying him due process. He argues
that “the amount of drugs allegedly involved should be held
to constitute an element of the offense” and thus the
Government’s “failure to allege the specific amount of drugs
involved constitutes a failure to charge a crime.” Gori
further argues that the Government’s failure to mention in
its indictment the specific amount of drugs involved violates
Apprendi v. New Jersey, 530 U.S. 466 (2000). He reasons
that the U.S.S.G.’s guideline ranges are essentially
statutory maximum punishments for distribution of various
amounts of drugs. Moving from one sentencing range to a
higher range is, in Gori’s view, equivalent to increasing the
punishment for a crime beyond a statutory maximum,
requiring that the factors responsible for the increase in
range (here, the amount of drugs involved) be alleged in the
indictment and proved to a factfinder beyond a reasonable
doubt.
  We discern no due process violation. The indictment
stated clearly the crime charged against Gori. Moreover, the
indictment’s allegation that the conspiracy involved “more
than 500 grams of methamphetamine” put Gori on notice
                              4


that, if convicted, he would receive a sentence of at least
ten years under § 841(b)(1)(A)(viii).
  Moreover, this case does not offend Apprendi. It holds
that sentence enhancements, other than a prior conviction,
that increase a criminal defendant’s punishment beyond
the statutory maximum for the crime charged must also be
included in the indictment and proved beyond a reasonable
doubt. Apprendi, 530 U.S. at 490. Gori’s sentence — the
statutory minimum — logically cannot exceed the statutory
maximum. Hence Apprendi is not brought into play. See
United States v. Williams, 235 F.3d 858, 863 (3d Cir. 2000)
(holding that Apprendi is not implicated by applications of
the U.S.S.G. that do not result in a sentence exceeding the
statutory maximum sentence for the substantive crime
charged).
B. Aggregation of multiple transactions to determine
amount of methamphetamine involved
   Gori alleges the District Court erred in determining that
more than 500 grams of methamphetamine were involved
in the conspiracy because no single sale or transaction
involved over 500 grams. He argues that § 841(b)(1)(A)
penalizes a “violation” of § 841(a) and that each sale or
transaction should be viewed as a separate violation. He
cites United States v. Winston, 37 F.3d 235, 240-41 (6th
Cir. 1994), for the proposition that a court may not
aggregate multiple drug transactions in determining the
amount of drugs involved for § 841(b) purposes.
  We disagree. Winston’s holding disallowing aggregation of
multiple drug transactions for § 841(b) purposes did not
extend to multiple drug transactions as part of a
conspiracy. Here, all eight drug transactions comprise the
conspiracy to which Gori pled guilty. While no Third Circuit
case squarely addresses this issue, we find persuasive
United States v. Pruitt, 156 F.3d 638, 644-45 (6th Cir.
1998), which aggregated multiple transactions committed
as part of a conspiracy in determining whether the amount
of drugs involved reached § 841(b)’s threshold. The Court
reasoned that “a conspiracy is a single, unified offense.” Id.
at 644; see also United States v. Walker, 160 F.3d 1078,
1093 (6th Cir. 1998) (“[A] conspiracy is a single violation of
                                    5


the drug laws, and the fact that this particular conspiracy
was characterized by separate transactions is a fact of no
legal significance.”); United States v. Reyes, 930 F.2d 310,
312 (3d Cir. 1991) (noting that, because “the conspiracy
count . . . does not charge three separate offenses but a
single offense, i.e., a conspiracy having multiple objectives[,]
. . . [t]he allegation in a single count of a conspiracy to
commit several crimes is not duplicitous”) (alteration in
original) (quoting Braverman v. United States, 317 U.S. 49,
54 (1942)).
   Even were we not to aggregate transactions in applying
§ 846, Gori’s sentence would still be proper. United States
v. Boone, 279 F.3d 163 (3d Cir. 2002), in interpreting the
U.S.S.G., noted that “a sentence in a criminal conspiracy is
based upon all relevant conduct and not merely offense
conduct.” Id. at 177. Therefore, in computing Gori’s
sentence under the U.S.S.G., the District Court was entitled
to take into account the 500 grams of methamphetamine
mixture involved in the conspiracy.2
C.   Whether what Gori sold was a “mixture”
   Gori alleges that he did not sell more than 500 grams of
a mixture containing methamphetamine, for which
§ 841(b)(1)(A)(viii) prescribes a penalty. He reasons that,
because the drugs he sold were so diluted they were
effectively unmarketable, they were not a “mixture.” He
therefore contends that his sentence should reflect not the
total weight (i.e., methamphetamine plus cutting agent) of
the drugs he sold, but only the weight of the pure
methamphetamine contained therein — twenty-seven
grams.
  We reject this argument as well. While § 841 does not
explicitly define “mixture,” the Supreme Court has said that
a drug combined with a carrier medium “used to facilitate

2. As Gori’s Pre-Sentence Report noted, under U.S.S.G. § 2D1.1(c)(4), this
amount of methamphetamine dictates an offense level of 32 and hence
a sentence of 121 to 151 months (when the Criminal History Category is
I). The Pre-Sentence Report recommended a two-point decrease for
acceptance of responsibility, leaving an offense level of 30 and a
sentencing range between 97 and 121 months. The District Court
sentenced Gori to 120 months imprisonment.
                                    6


the distribution of the drug” is a mixture. Chapman v.
United States, 500 U.S. 453, 466, 468 (1991) (holding that
§ 841 requires that LSD blotter paper be included in weight
of a “mixture” containing a detectable amount of LSD); see
United States v. Berroa-Medrano, 303 F.3d 277, 281, 284-
85 (3d Cir. 2002) (rejecting argument that highly impure
heroin “is neither a ‘mixture’ nor a ‘substance’ . . . as
intended by [§ 841] or the Sentencing Guidelines”); United
States v. Gurgiolo, 894 F.2d 56, 60-61 (3d Cir. 1990)
(“Drugs containing detectable amounts of [illegal]
substances . . . should be weighed as a whole, irrespective
of purity.”) (emphasis added). Thus, 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, see Chapman, 500 U.S. at 462, and
whether the impure drug is “marketable,” see Berroa-
Medrano, 303 F.3d at 284. For example, a drug plus a
bottle in which it is packaged would not be a mixture,
Chapman, 500 U.S. at 463, whereas a drug combined with
a cutting agent would be a mixture, Berroa-Medrano, 303
F.3d at 284.3

3. Our holding is also consistent with the U.S.S.G.’s method of
calculating a drug’s weight. See U.S.S.G. § 2D1.1(c), Note A (“[T]he
weight of a controlled substance . . . refers to the entire weight of any
mixture or substance containing a detectable amount of the controlled
substance.”) (emphasis added); id. § 2D1.1, cmt. n.1 (“ ‘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.”) (emphasis
added). Compare United States v. Rodriguez, 975 F.2d 999, 1005-07 (3d
Cir. 1992) (“bricks” with cocaine layered on top and boric acid inside —
constructed to deceive the buyer into believing he was purchasing pure
cocaine — is not a “mixture” because “boric acid . . . did not facilitate
the distribution of the cocaine”; rather, “the whole mass, if mixed, would
render the resulting product unsalable and unusable — and probably
even toxic”), with United States v. Touby, 909 F.2d 759, 772-73 (3d Cir.
1990) (considering entire weight of Euphoria pill for U.S.S.G. purposes
even though the pill was only 2.7 percent pure). Gori does not bring a
challenge under the U.S.S.G., however. Rather, he alleges that his
involvement in the conspiracy did not implicate § 841(b)(1)(A)(viii)’s
statutory penalty provision because the drugs he sold did not fall into
the statutory definition of “mixture.”
                              7


   Furthermore, we decline to read a “purity” requirement
into § 841’s definition of “mixture” because the statute
already provides that a drug must contain a “detectable
amount of methamphetamine” to give rise to criminal
liability. See 21 U.S.C. § 841(b)(1)(A)(viii). Congress has
made the policy decision that purity is not an element of
§ 841(b)(1)(A)(viii). For us to go further crosses the Rubicon
to the forbidden shore of judicial legislation. We decline the
invitation.
  Whether the drugs Gori sold contain a “detectable
amount of methamphetamine” is a question of fact, the
determination of which we overturn only if clearly
erroneous. See United States v. Miele, 989 F.2d 659, 663
(3d Cir. 1993). We do not believe the District Court clearly
erred in finding that drugs Gori sold, which ranged between
1.2 percent and 5.9 percent pure and were on average 2.7
percent pure, contained a “detectable amount of
methamphetamine.” Cf. United States v. Touby, 909 F.2d
759, 772-73 (3d Cir. 1990) (considering entire weight of
Euphoria pill for U.S.S.G. purposes even though the pill
was only 2.7 percent pure).
D. Failure to grant a downward departure due to the
methamphetamine’s dilution
  Gori challenges the District Court’s failure to depart
downward from the U.S.S.G. due to the low purity (as
noted, 2.7 percent on average) of the methamphetamine
mixture he sold. We may review a claim for downward
departure only when the District Court was not aware of its
authority to grant a downward departure. United States v.
Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991) (“If we
determine the district court was aware of its authority to
depart from the Guidelines, and chose not to, we are
without power to inquire further into the merits of its
refusal to grant [appellant’s] request.”); United States v.
Denardi, 892 F.2d 269, 272 (3d Cir. 1989); see also Miele,
989 F.2d at 668 n.11. In this case we have jurisdiction
because the District Court did not believe it had the
authority to depart downward.
  The District Court was correct in refusing to depart
downward, because to do so based on the low quality of a
                              8


drug is an improper exercise of discretion. See, e.g., United
States v. Beltran, 122 F.3d 1156, 1159-60 (8th Cir. 1997);
United States v. Upthegrove, 974 F.2d 55, 56-57 (7th Cir.
1992); United States v. Davis, 868 F.2d 1390, 1393 (5th
Cir. 1989); cf. United States v. Benish, 5 F.3d 20, 27-28 (3d
Cir. 1993) (stating that the District Court lacked discretion
to depart downward based on the age and sex of marijuana
plants, which made them “possibly weak”).
   Downward departures are proper only “if the court finds
‘that there exists an aggravating or mitigating circumstance
of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different
from that described.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C.
§ 3553(b)). In this case, as the Upthegrove Court noted, the
Sentencing Commission explicitly decided to make a
defendant’s sentence turn on a drug’s weight, not its purity.
Upthegrove, 974 F.2d at 56. “If district courts could depart
from the Drug Quantity Table anytime they are faced with
drugs of less than ‘average’ purity, the Sentencing
Commission’s decision to focus on the weight of the drugs
in sentencing would be eviscerated.” Id.
E. Claim that methamphetamines are a Schedule III
drug rather than a Schedule II drug
  Finally, Gori argues that 21 U.S.C. § 812(c) classifies
powdered methamphetamine as a Schedule III drug, for
which the maximum punishment is five years, rather than
the ten years he received for a Schedule II drug. Gori
acknowledges that 21 C.F.R. § 1308.12(d) reclassifies
methamphetamine as a Schedule II drug, but nonetheless
contends that the statute’s classification must take
precedence over that in the regulation.
  Whatever the validity of this argument, it is irrelevant
here. Section 841(b)(1)(A)(viii) imposes a minimum ten-year
penalty for illegal activity involving “500 grams or more of
a mixture or substance containing a detectable amount of
methamphetamine, its salts, isomers, or salts of its
isomers.” The clear language of § 841(b)(1)(A)(viii) indicates
that its ten-year minimum penalty depends on whether a
defendant has dealt in more than 500 grams of a
                              9


methamphetamine mixture and not at all on the schedule
in which methamphetamine belongs.
  Moreover, Gori is wrong that § 812’s classification of
methamphetamine supersedes the subsequent regulation.
21 U.S.C. § 811(a)(1) expressly authorizes the Attorney
General to “transfer between such schedules any drug or
other substance” upon making findings and in accordance
with typical notice and comment rulemaking procedures.
21 C.F.R. § 1308.12(d) was properly promulgated. See, e.g.,
United States v. Roark, 924 F.2d 1426, 1428 (8th Cir.
1991). Therefore the Attorney General validly reclassified
methamphetamine as a Schedule II drug.
                        * * * * * *
  We affirm the District Court’s sentence.

A True Copy:
        Teste:

                  Clerk of the United States Court of Appeals
                              for the Third Circuit
