United States v. Dimeo

• Court: Court of Appeals for the First Circuit
• Decided: July 8, 1994
• Docket: 93-2272
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-2272
                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                     PAUL DIMEO,

                                Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
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Before

                                Selya, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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John A.  Ciraldo, with whom  Perkins, Thompson, Hinckley  & Keddy
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        was on brief for appellant. 
             Michael  M. DuBose, Assistant  United States Attorney,  with whom
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        Jay P. McCloskey, United States Attorney, was on brief for appellee. 
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                                     July 7, 1994
                                                     
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CYR, Circuit Judge.   After the district  court, acting
                    CYR, Circuit Judge
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          sua sponte, reduced its original sentence in response to a recent
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          amendment to the  Sentencing Guidelines,  see United States  Sen-
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          tencing   Commission,  Guidelines   Manual,      2D1.1,  comment.
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          (backg'd.) (Nov. 1993), defendant Paul Dimeo appealed the revised

          sentence  on the  ground that  the  district court  erred in  not

          reducing the prison  term below the minimum  mandated by statute.

          Finding no error, we affirm. 

                    Appellant Dimeo pled guilty to conspiring to distribute

          more than one gram of lysergic acid diethylamide ("LSD").  See 21
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          U.S.C.     841(a)(1) and 846.   For purposes of  determining both

          the statutory mandatory  minimum sentence ("MMS"), see  21 U.S.C.
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            841(b)(1)(B)(v) (prescribing five-year  MMS for distributing "1

          gram or  more of a  mixture or substance containing  a detectable

          amount of [LSD]"), and the  applicable Guideline sentencing range

          ("GSR"),  see U.S.S.G.    2D1.1(c)  (Nov.  1991),1  the  district
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          court included the entire weight of the paper carrier medium used

          in distributing the 900 LSD doses.  See Chapman v. United States,
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          500  U.S. 453 (1991)  (construing "mixture  or substance,"  in 21

          U.S.C.   841(b), as "requir[ing] the weight of the carrier medium

          to be included").   The 63-month  prison term originally  imposed

          under the  Guidelines (BOL:   26; CHC:   I;  GSR:   63-78 months)

          trumped the five-year  MMS under 21 U.S.C.    841(b)(1)(B)(v) for

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               1See United  States v.  Dimeo, 753 F.  Supp. 23, 26  (D. Me.
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          1990), aff'd, 946 F.2d 880 (1st Cir. 1991) (table).
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                                          2

distributing one gram or more of LSD.  See U.S.S.G.   5G1.1(c).
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                    Effective  November 1,  1993,  however, the  Sentencing

          Commission amended U.S.S.G.    2D1.1, see 28 U.S.C.    944(p), by
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          prescribing a less stringent (0.4 milligram per-dose) formula for

          calculating LSD  quantity than  the regime  previously upheld  in

          Chapman.   See U.S.S.G.   2D1.1, comment.  (backg'd.) (Nov. 1993)
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          (hereinafter, "Amendment 488").  As  the Commission provided that

          Amendment 488 may be given retroactive effect consistent  with 18

          U.S.C.   3582(c)(2),2 see United States v. Boot,     F.3d     ,  
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           (1st Cir. 1994) [No. 93-2317, slip op. at 3-4 (1st Cir.  June 7,

          1994)],  the district  court later  reduced the LSD  quantity for

          Guidelines sentencing purposes from 6.25 grams to 0.36 of a gram,

          and the GSR to 21-27 months, but did not  reduce Dimeo's sentence

          below the five-year MMS, and Dimeo appealed.3 

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               2Section 3582(c)(2) provides that the district court, on its
          own motion,  may reduce a  sentence imposed under  the Sentencing
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          Guidelines if  "such a  reduction is  consistent with  applicable
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          policy  statements  issued  by the  Sentencing  Commission."   18
          U.S.C.   3582(c)(2).  

               3On November  1, 1993,  the United  States Probation  Office
          recommended a reduction in Dimeo's guideline sentence pursuant to
          Amendment  488 but advised against any reduction in the five-year
          MMS.  The  district court received no input from  the parties and
          conducted no  hearing.  Dimeo's  former counsel, even  though not
          reappointed  until after  the  district  court  had  entered  its
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          revised  sentence  on  November  15,  1993, nevertheless  alertly
          contacted the  clerk of the  district court on October  27, 1993,
          inquiring as  to the procedure  for resolving issues  relating to
          any  reduction  in Dimeo's  sentence.   For whatever  reason, the
          record on  appeal reflects no  written or oral  presentation from
          Dimeo in the  district court either before or  after the sentence
          reduction.  Thus,  the claims Dimeo asserts on  appeal were never
          presented to the  district court, and are deemed  waived.  United
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          States  v. Elwell,  984 F.2d  1289, 1298  (1st Cir.)  (claims not
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                                          3

On appeal,  Dimeo  claims for  the first  time that  by

          permitting Amendment  488 to  take effect  Congress signaled  its

          intention that LSD  weight be calculated  under a unitary  method

          for  both  GSR and  MMS  purposes, thereby  implicitly overruling

          Chapman.4   Further,  also for  the first  time, Dimeo  asserts a
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          constitutional challenge to  the coexistence of these  two diver-

          gent regimes  for determining LSD  quantity, as violative  of due

          process  and equal  protection.   Even if  these claims  were not

          deemed waived  in the  district court for  failure to  raise them

          either before or  after entry of the revised  judgment, see supra
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          note 3, they fail for other reasons.  

                    A  sentence  reduction  pursuant  to Amendment  488  is

          expressly conditioned on conformance with 18 U.S.C.   3582(c)(2),

          which confers  no power on the district court to reduce a minimum

          sentence mandated by statute.  Furthermore, as discussed in Boot,
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          slip op.  at 7, a MMS reduction  would exceed the power conferred

          upon  the district court under 18  U.S.C.   3582(c)(2), see supra
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          raised in  district court are  waived), cert. denied, 113  S. Ct.
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          2429 (1993).  

               4This claim  is foreclosed by  our recent decision  in Boot,
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          slip  op. at 7.  We  note, further, that the constitutional chal-
          lenge belatedly  asserted  by appellant  may entail  considerable
          risk.  Chapman conclusively  establishes the constitutionality of
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          the "mixture  or substance"  methodology for  MMS purposes.   Id.
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          Were a court to conclude  that the "mixture or substance" method-
          ology  and  the  0.4 milligram  per-dose  formula  cannot coexist
          constitutionally, it seems virtually certain  that Amendment 488,
          rather  than the  "mixture or  substance"  methodology upheld  in
          Chapman, would  be struck down,  and with it the  Guidelines sen-
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          tence reduction.  But see infra at pp. 4-5.
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note  2,  since  it  would be  inconsistent  with  the Sentencing

          Commission policy statement accompanying  Amendment 488:   "None-

          theless, this  [new Guidelines]  approach does  not override  the

          applicability  of  'mixture  or  substance'  for the  purpose  of

          applying any mandatory minimum sentence (see Chapman;   5G1.1(b)-
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          )."  U.S.S.G.   2D1.1, comment.  (backg'd.).  See also Boot, slip
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          op. at 7.

                    Affirmed. 
                    Affirmed.
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