United States v. Darren Mogensen

65 F.3d 170, 1995 U.S. App. LEXIS 30481, 1995 WL 516397

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 25, 1995
• Docket: 94-2596
• Status: Unpublished

Opinion

65 F.3d 170

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Darren MOGENSEN, Defendant-Appellant.

No. 94-2596.

United States Court of Appeals, Seventh Circuit.

Submitted Aug. 25, 1995.1
Decided Aug. 25, 1995.

Before BAUER, EASTERBROOK and MANION, Circuit Judges.

ORDER

Pursuant to a written plea agreement, Darren Mogensen pleaded guilty to the sale of LSD. The parties stipulated that the weight of LSD attributable to Mogensen for sentencing guidelines purposes, included 1,700 doses, presumed to be 0.4 mg. per dose, see U.S.S.G. Sec. 2D1.1 (amendment 488, effective November 1, 1993), for a total of 680 mg. of LSD. The parties further agreed that the weight of the LSD with the carrier medium of blotter paper exceeded one gram.

The district court found that applying the new Sentencing Guidelines formula resulted in a sentencing range of 37 to 46 months. However, the court concluded that Chapman v. United States, 500 U.S. 453 (1991), which held that for sentencing purposes, the term "mixture or substance" in 21 U.S.C. Sec. 841(b)(1) includes the carrier medium in which LSD is absorbed, required a 60-month mandatory minimum sentence. The court therefore imposed a sentence of 60 months' imprisonment. We agree, for the reasons stated in United States v. Neal, 46 F.3d 1405 (7th Cir.1995) (en banc), cert. granted, 63 U.S.L.W. 3889 (U.S. June 19, 1995) (No. 94-9088).2

The judgment of the district court is AFFIRMED.

1 After preliminary examination of the briefs, the United States v. Neal statements of position, including the appellant's statement that oral argument was not necessary, and the record, the court determined that oral argument would not be helpful in this case. See Fed.R.App.P. 34(a); Cir.R. 34(f)

2 In his opening brief and reply brief, Mogensen argues that we should overturn Neal. However, in his February 1995 Statement of Position which this court requested in light of Neal, Mogensen states that he "concedes that the Neal opinion is now controlling precedent in this circuit with respect to the issue raised by defendant in his appeal and requires that the defendant's appeal be decided adversely to him."