United States v. Elmer Arias Acosta

963 F.2d 551, 113 A.L.R. Fed. 663, 1992 U.S. App. LEXIS 10879

• Court: Court of Appeals for the Second Circuit
• Decided: May 13, 1992
• Docket: 780, Docket 91-1527
• Status: Published

Opinions

McLAUGHLIN, Circuit Judge:

Both Congress and the Sentencing Commission have made clear that, to penalize drug traffickers, their sentences should be based on the entire weight of mixtures containing a detectable amount of a controlled substance. See 21 U.S.C. § 841; U.S.S.G. § 2D1.1(c) note *. Accordingly, the Supreme Court has recently held that, for sentencing purposes, the weight of LSD includes the weight of its carrier medium—in that case, blotter paper. Chapman v. United States, — U.S. —, 111 S.Ct. 1919, 1922, 114 L.Ed.2d 524 (1991). Here, defendant’s base offense level was calculated based on the weight of both the cocaine and a creme liqueur in which he had dissolved the cocaine before importing it. Because we see a functional difference between carrier mediums and the creme liqueur, we conclude that the weight of the liqueur should not have been calculated in the base offense level. Accordingly, we reverse.

BACKGROUND

The facts of this case, while unusual, are not in dispute. On February 25, 1991, after a brief trip to Medellin, Colombia, Elmer Arias Acosta returned to the United States, arriving at John F. Kennedy International Airport aboard Avianca Airways Flight 020. United States Customs Inspectors searched defendant’s luggage and noticed six bottles of creme liqueur. Their suspicions aroused because the caps of the bottles appeared to be glued on, the Inspectors seized the bottles, field tested the contents, and determined that the liqueur contained cocaine. The Customs Inspectors then placed defendant under arrest.

The Drug Enforcement Administration subsequently conducted a laboratory analysis and determined that the liquid and cocaine mixture weighed 4.662 kilograms. The government chemist then distilled the cocaine from the liquid and calculated the weight of just the cocaine to be 2.245 kilograms.

On May 29, 1991, defendant pleaded guilty to one count of importing an unspecified amount of cocaine into the United States, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), & 960(b)(3). Based on the combined weight of the liquid and cocaine mixture (4.662 kilograms), the Probation Department calculated defendant’s base offense level at 30. See U.S.S.G. § 2D1.1(c) (Drug Quantity Table). The presentence report stated that both a two-level reduction for acceptance of responsibility and a four-level reduction for “minimal role” were appropriate. Probation thus placed defendant’s total offense level at 24, which, when combined with a criminal history category I, resulted in a guideline range of 51-63 months.

At sentencing, defendant objected that the weight of the creme liqueur should not have been included in the weight calculation. He argued that because the cocaine alone weighed 2.245 kilograms, his base offense level should have been 28, rather than 30.¹ See id. This two-point reduction would have resulted in a guideline range of 41-51 months. Judge Glasser, with obvious reluctance, rejected defendant’s argument, holding that Chapman mandated the inclusion of the weight of the creme liqueur in the overall weight calculation. Judge Glasser accepted Probation’s calculation of the guideline range (51-63 months) and sentenced defendant to 51 months of imprisonment.

Defendant now appeals his sentence.²

DISCUSSION

The government concedes that the creme liqueur was merely a mask to conceal the cocaine and that before the cocaine could be distributed, it would have to be distilled out of the liqueur. Similarly, the government does not contest the defendant’s argument that the creme liqueur was not ingestible and therefore was not marketable. With that, the issue becomes rather simple: Does the sentencing scheme require that the weight of an unusable portion of a mixture, which makes the drugs uningestible and unmarketable, be included in the overall weight calculation? We think not.

Section 2D 1.1 is the applicable guideline for defendants convicted of importing controlled substances. United States Sentencing Guidelines, Guidelines Manual (1990) (Appendix A-Statutory Index). This section states that “[u]nless otherwise specified, the weight of a controlled substance set forth in the [Drug Quantity Table] refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” U.S.S.G. § 2D1.1(c) note *. In turn, application note 1 to § 2D1.1 states: “ ‘Mixture or substance’ as used in this guideline has the same meaning as in 21 U.S.C. § 841.” This leads us inexorably to Chapman, where the Supreme Court focused on the meaning of the term “mixture or substance” in 21 U.S.C. § 841.

In Chapman, the defendants were convicted of distributing LSD, dissolved in blotter paper, in violation of 21 U.S.C. § 841(a). The pure LSD weighed approximately 50 milligrams; the combined weight of the LSD and the blotter paper — the carrier medium onto which the LSD had been sprayed — was 5.7 grams. Because the statute required a mandatory minimum sentence of five years for distributing one gram or more of a mixture or substance containing a detectable amount of LSD, see 21 U.S.C. § 841(b)(1)(B)(v), the Court had to determine whether Congress intended to include the weight of the carrier medium in the calculation. Examining the legislative history of the statute, as well as the ordinary meaning of the word “mixture”, the Chapman Court held that “it is the weight of the blotter paper containing LSD, and not the weight of the pure LSD, which determines eligibility for the minimum sentence.” Chapman, 111 S.Ct. at 1922.

As to legislative history, the Court concluded that Congress had 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.” Id. at 1925 (citing H.R.Rep. No. 99-845, pt. 1, 11-12, 17 (1986) (“House Report”)). This led the Chapman Court to write that Congress intended “penalties for drug trafficking to be graduated according to the weight of the drugs in whatever form they were found — cut or uncut, pure or impure, ready for wholesale or ready for distribution at the retail level.” Id.

Focusing next on the dictionary definition of the word “mixture,” the Chapman Court stated:

Like heroin or cocaine mixed with cutting agents, the LSD cannot be distinguished from the blotter paper, nor easily separated from it. Like cutting agents used with other drugs that are ingested, the blotter paper ... carrying LSD can be and often is ingested with the drug.

Id. at 1926. Rejecting the defendants’ due process argument, the Chapman Court also noted Congress’ rational concern for the amount of drugs that reach the streets, whether pure or impure:

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.

Id. at 1927-28.

The Chapman Court stressed that its decision would not result in widely divergent sentences for equally culpable defendants because Congress had made clear that those who distribute more of a drug by increasing the amount of dilutants in it are, in fact, more culpable. See Chapman, 111 S.Ct. at 1927-28 (citing House Report at 12, 17). This is because they are responsible for more of the noxious substance reaching the streets, albeit in diluted form. Purity is not the focal point of culpability; rather, Congress was concerned with the amount of consumable drugs on the market, whether pure or impure. See Chapman, 111 S.Ct. at 1927-28; see also United States v. Rolande-Gabriel, 988 F.2d 1231, 1237 (11th Cir.1991) (“The entire weight of drug mixtures which are usable in the chain of distribution should be considered in determining a defendant’s sentence.”).

The government argues that Chapman speaks plainly and directly to the present case and mandates the inclusion of the creme liqueur in the weight calculation. We disagree.

Our starting point is the word “mixture”. We note that, in Chapman, the LSD and the blotter paper were held to be a mixture because they were commingled and, like cocaine diluted with cutting agents, the LSD and the blotter paper were not easily distinguishable and were both ingestible. See Chapman, 111 S.Ct. at 1926. Functionally, i.e., in terms of drug trafficking, the LSD and the blotter paper, like an egg and cheese omelet, became a single product. By contrast, the cocaine/creme liqueur was not an ingestible mixture, and at least one other court has noted that distilling cocaine from liquid waste is not particularly difficult. See Rolande-Gabriel, 938 F.2d at 1237 (government chemist easily distilled liquid waste from cocaine). Because the creme liqueur must be separated from the cocaine before the cocaine may be distributed, it is not unreasonable to consider the liquid waste as the functional equivalent of packaging material, see id., which quite clearly is not to be included in the weight calculation. See Chapman, 111 S.Ct. at 1926.

Consequently, even though the cocaine/creme liqueur may fall within the dictionary definition of “mixture”, the legislative history convinces us that the weight of the creme liqueur must be excluded. Function, not form, is critical. Congress was concerned with mixtures that will eventually reach the streets, i.e., consumable mixtures. See id. at 1926, 1927-28 (citing House Report at 11-12, 17).

Viewed through a market-oriented prism, there is no difference in culpability between individuals bringing the identical amount and purity of drugs to market but concealing the drugs in different amounts of unusable mixtures. If, for example, A imports two kilograms of pure cocaine mixed in ten kilograms of liqueur, while B smuggles his two kilograms of pure cocaine in twenty kilograms of liqueur, they have both brought the same amount of usable drugs to market, viz, two kilograms of cocaine. It defies logic to say that they should be sentenced differently under a statute that was concededly designed to penalize dealers based on the amount of drugs they place on the market. Sentencing these individuals differently would not only ignore Congress’ express intent, it would also fly in the face of the fundamental underpinnings of the Guidelines, namely, uniformity and proportionality in sentencing. See 28 U.S.C. § 991(b)(1)(B) (Sentencing Commission established to “avoid[ ] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct”); U.S.S.G., Ch. 1, Pt. A, at 1.2 (policy statement) (Congress sought uniformity and proportionality in sentencing); United States v. Palta, 880 F.2d 636, 639 (2d Cir.1989); Rolande-Gabriel, 938 F.2d at 1237.

In stark contrast to the LSD in Chapman, the “mixture” here was useless because it was not ready for distribution at either the wholesale or the retail level. It could not be ingested or mixed with cutting agents unless and until the cocaine was distilled from the creme liqueur. After distillation, it could be sold at the wholesale level or diluted with cutting agents and sold at the retail level. Only at that point, could Congress’ rationale for penalizing a defendant with the entire amount of a “mixture” sensibly apply.

The Eleventh Circuit confronted a remarkably similar situation in Rolande-Gabriel, where the defendant pleaded guilty to importing cocaine by concealing it in a liquid. The entire weight of the liquid waste and the cocaine (which had already been mixed with cutting agents) was 241 grams. The weight of the pure cocaine was 7.2 grams, and the cutting agents weighed 65 grams. The Eleventh Circuit held that, while it was proper to base the defendant’s sentence on the weight of the usable mixture (the cocaine and the cutting agents), the weight of the unusable liquid should not factor into the sentencing calculus. The Rolande-Gabriel court distinguished Chapman on the ground that the mixture with the liquid waste was unusable, and concluded that the overriding concern of the Guidelines in promoting rational and uniform sentences required that .the liquid waste be excluded from the weight calculation. See Rolande-Gabriel, 938 F.2d at 1235-38. The Sixth Circuit has agreed with this conclusion. See United States v. Jennings, 945 F.2d 129, 136-37 (6th Cir.1991).

The only other circuit to address this issue post-Chapman is the First Circuit. See United States v. Mahecha-Onofre, 936 F.2d 623, 625-26 (1st Cir.) (cocaine chemically bonded to acrylic suitcase), cert. denied, — U.S. —, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991); United States v. Restrepo-Contreras, 942 F.2d 96, 99 (1st Cir.1991) (cocaine mixed with beeswax), cert. denied, — U.S. —, 112 S.Ct. 955, 117 L.Ed.2d 123 (1992). In Mahecha-Onofre, the defendant argued that because the acrylic to which the cocaine had chemically bonded was not ingestible it should not be included in the weight calculation. Refusing to accept this argument, the First Circuit stated:

[O]ne reason why Congress and the Sentencing Commission have specified that courts not consider drug “purity” in imposing sentence is that “weight” and “purity” both, roughly speaking, correlate with the seriousness of the crime.

Mahecha-Onofre, 936 F.2d at 626.

We do not disagree with this statement. However, we do not believe that it sufficiently disposes of the ingestibility/market-ability argument. Congress has made clear that the weight of drugs sold at the wholesale or retail level, rather than their purity, is the yardstick of culpability. See Chapman, 111 S.Ct. at 1927-28 (citing House Report at 12, 17). The problem, however, is that, under a market-oriented approach, when the mixture is not ingestible (and therefore not marketable), there is no reason to base a sentence on the entire weight of a useless mixture. The issue here is marketability, not purity. This distinction was highlighted by the Eleventh Circuit when it held that the sentence was to be based on the amount of the usable mixture — not the pure cocaine, but the cocaine mixed with the ingestible cutting agents. See Rolande-Gabriel, 938 F.2d at 1237. For this reason, we are constrained to disagree with the First Circuit.³

The government highlights certain language in Chapman where the Court stated that blotter paper “facilitate[s] the distribution of the drug. Blotter paper makes LSD easier to transport, store, conceal, and sell.” Chapman, 111 S.Ct. at 1928. The Court also referred to blotter paper as a “tool of the trade for those who traffic in [LSD].” Id. Building on these passages, the government argues that defendant should be charged with the weight of the creme liqueur because it was his chosen tool of the importation trade. We are not persuaded by this argument.

True, creme liqueur, like blotter paper, may be used to transport and conceal drugs. The distinction, however, is that, unlike creme liqueur, the blotter paper, or some other carrier medium, is necessary to the distribution and consumption of LSD. LSD must be placed on a carrier medium to reach the market. That is not true of cocaine. Creme liqueur is merely a device to mask cocaine while it is being transported. The government’s argument that because creme liqueur may be used to transport and conceal cocaine the liqueur must therefore be weighed for sentencing purposes ignores the Guidelines’ touchstone for measuring culpability in drug trafficking cases—the amount of the commodity, i.e., consumable or marketable drugs, that the defendant moves in the chain of distribution. Put another way, it is not how one trafficks in the commodity (in this case mixing it with six, as opposed to sixteen or twenty-six, etc., bottles of liqueur) that is important but, rather, how much of the commodity one transports or distributes that is relevant in calculating the weight of a controlled substance for sentencing purposes.

The government also seeks to avoid Chapman’s discussion of Congress’ market-oriented approach by arguing that this is an importation case (21 U.S.C. §§ 952 & 960), whereas Chapman was a distribution case (21 U.S.C. § 841). This is unpersuasive. The Guidelines provide that, for purposes of calculating weight, the phrase “mixture or substance” should be given the same meaning it has in 21 U.S.C. § 841. See U.S.S.G. § 2D1.1 App. Note 1. The congressional intent underlying § 841—as defined in Chapman—is clear and unavoidable. The government cannot have it both ways; the Sentencing Commission directs us to § 841 to define “mixture or substance,” and we therefore follow Chapman’s interpretation.

Furthermore, we do not believe that there is a valid conceptual distinction between drugs in the importation market and drugs in the distribution market. Even in the importation market, drugs must be distilled from uningestible mixtures to be sent down the chain of distribution.

CONCLUSION

We emphasize the limited nature of our holding. The government concedes that the creme liqueur is not a cutting agent or dilutant which, when mixed with cocaine, is ingestible. Cutting agents, of course, must always be factored into the weight calculation. So long as the mixture is ingestible, it is marketable. However, proper administration of the Guidelines, in light of Congress' market-oriented approach, mandates that a defendant’s culpability be based on the amount of usable drugs that he brings to market, whether he operates on the wholesale, retail, or, as here, the importation market. Because the creme liqueur/cocaine is not an ingestible mixture, we hold that it was improper to include the weight of the creme liqueur in the weight calculation.

Reversed and Remanded.

1 . Defense counsel’s argument strayed in the direction of a request for a downward departure, the denial of which “is not appealable when the Guidelines provision was correctly applied and the sentence is not in violation of the law." United States v. Richardson, 923 F.2d 13, 15 (2d Cir.1991). However, because it is clear that defendant's challenge dealt with the proper application of the Guidelines, and was not merely an unsuccessful attempt to obtain a downward departure, we have jurisdiction to entertain this appeal. 18 U.S.C. § 3742(a)(2); see United States v. Colon, 884 F.2d 1550, 1552-53 (2d Cir.), cert. denied, 493 U.S. 998, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989).

2 . We note that the 51 month sentence imposed falls within the overlap of the two possibly applicable guideline ranges. We have held that when a sentence falls within the overlap and the sentencing judge makes clear that the same sentence would be imposed regardless of which of the two guideline ranges is applicable, we will not engage in the metaphysics of determining which is the appropriate range. See United States v. Rodriguez, 928 F.2d 65, 68 n. 1 (2d Cir.1991); United States v. Bermingham, 855 F.2d 925, 934 (2d Cir.1988). Here, the record is clear that Judge Glasser would have imposed a sentence less than 51 months had he believed the lower range was applicable, and, therefore, we address defendant’s claim of error.

3 . Several pre-Chapman decisions are arguably, but not necessarily, contrary to the result we reach today. See, e.g., United States v. Garcia, 925 F.2d 170 (7th Cir.1991); United States v. Berry, 876 F.2d 55 (8th Cir.1989); United States v. Yu-Chong, 920 F.2d 594 (9th Cir.1990). In Garcia, the Seventh Circuit stated that it was rejecting the defendant’s claim that the weight of the moisture in the seized marijuana should not be included because it made the marijuana unmarketable. The Garcia court, however, specifically noted that moisture is arguably included in the definition of the drug and stated that Garcia's marketability theory was particularly suspect because damp marijuana is not necessarily unmarketable. See Garcia, 925 F.2d at 172, 173 n. 1. In Berry, the Eighth Circuit held that marijuana stalks must be considered in the weight calculation, but never indicated whether the stalks made the marijuana unusable. See Berry, 876 F.2d at 56. In fact, as to marijuana, Congress has specifically noted that all parts of a marijuana plant are to be considered in the weight calculation; and one likely reason for this is that all parts of the plant may be granulated and sold. See United States v. Lewis, 762 F.Supp. 1314, 1315-18 (E.D.Tenn.), aff’d, 951 F.2d 350 (6th Cir.1991). Finally, in Yu-Chong, the Ninth Circuit rejected the defendants’ claim that certain heroin additives should be excluded from the weight calculation. In dispatching this argument, the Ninth Circuit explicitly stated that defendants had failed to show “that the substance sold was without substantial value, or that it was not consumable by the ultimate user." Yu-Chong, 920 F.2d at 598 (emphasis added).