
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1695                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              BRIAN COTTON a/k/a "EARL",                                      Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Harry L. Miles for appellant.             ______________             Kevin O'Regan,  Assistant United  States Attorney,  with whom  A.             _____________                                                  __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                                                                      ____________________                                   January 28, 1994                                                                                      ____________________                    CYR, Circuit Judge.   Appellant was sentenced  pursuant                    CYR, Circuit Judge.                         _____________          to  U.S.S.G.   2D1.1(c)  and  its  accompanying Footnote*,  which          provide  that the entire weight  of a methamphetamine mixture and          the net weight  of the pure methamphetamine in the mixture are to          be determined,  and the court  is to use whichever  weight yields          the greater sentence.  Appellant claims  that Footnote* should be          disregarded in favor of the "market-oriented" approach supposedly          approved  in Chapman v.  United States, ___ U.S.  ___, 111 S. Ct.                       _______     _____________          1919 (1991), for  use in all  drug-related sentencings, based  on          the mixture weight, i.e., the total  product to be marketed.  The              _______         ____          "either/or" approach under U.S.S.G.   2D1.1(c)  and its Footnote*          is       directly       patterned        on       21       U.S.C.            841(b)(1)(A)(viii),(B)(viii).    Appellant concedes  that  this          claim is effectively precluded  by our decision in United  States                                                             ______________          v. Stoner,  927 F.2d  45, 47 (1st  Cir.), cert. denied,  ___ U.S.             ______                                 ____  ______          ___, 112 S.  Ct. 129 (1991), which upheld  the "either/or" provi-          sion in 21 U.S.C.   841(b)(1)(B)(viii),  but urges that we recon-          sider Stoner in light of Chapman.                ______             _______                    Appellant overlooks  the  fact that  Congress  has  not          adopted a unitary approach to drug-crime punishment but  an array          of distinctive  sentencing  schemes  for  various  categories  of          drugs.   See 21  U.S.C.   841(b).   Indeed, the  Court in Chapman                   ___                                              _______          specifically  adverted to  the  "either/or" sentencing  treatment          prescribed in methamphetamine (and PCP) cases, and concluded that          "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                                          2          distinction with  respect to LSD."   Chapman, 111 S.  Ct. at 1924                      ____  _______ __ ___     _______          (emphasis  added).    The  "market-oriented"  approach  appellant          infers from  Chapman would  blunt the power  of Congress  to pre-                       _______          scribe criminal sanctions and frustrate its mandate  in 21 U.S.C.            841(b)(1)(A)(iv),(viii) &  (B)(iv),(viii), as well  as U.S.S.G.            2D1.1(c) and the plain language of Footnote*.  See id. at 1926-                                                           ___ ___          28  (upholding legislative power to establish distinct sentencing          schemes for different  drugs).  We therefore  reaffirm Stoner and                                                                 ______          affirm the sentence imposed by the district court.1                    Affirmed.                    ________                                        ____________________               1Appellant's remaining  claim  is that  the  district  court          erred in  not departing downward  based on the  "unusual" circum-          stance that he  was sentenced in accordance  with U.S.S.G.   2D1-          .1(c) and Footnote*.   Assuming  we have  jurisdiction, but  see,                                                                  ___  ___          e.g., United States v. Tucker, 892 F.2d 8, 10-11 (1st Cir. 1989),          ____  _____________    ______          mere imposition  of sentence  in accordance  with the  applicable          guidelines does not constitute an "unusual" circumstance warrant-          ing departure, see United States  v. Rivera, 994 F.2d 942, 949-52                         ___ _____________     ______          (1st Cir. 1993).                                          3
