United States v. James Falbo

991 F.2d 796, 1993 U.S. App. LEXIS 15085, 1993 WL 96865

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 1, 1993
• Docket: 92-1933
• Status: Unpublished

Opinion

991 F.2d 796

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
James FALBO, Defendant-Appellant.

No. 92-1933.

United States Court of Appeals, Sixth Circuit.

April 1, 1993.

Before MARTIN and NORRIS, Circuit Judges and COFFIN, Senior Circuit Judge.*

PER CURIAM.

Defendant, James Falbo, challenges the district court's calculation of the base offense level used in fixing his sentence. He contends that the weight of the blotter paper used as a carrier should not have been included in determining the weight of the substance containing LSD. The issue raised by the appeal has been decided by the United States Supreme Court and by this court. In Chapman v. United States, 111 S.Ct. 1919, 1922 (1991), the Supreme Court examined the language "mixture or substance containing a detectable amount" of LSD in 21 U.S.C. § 841(b)(1)(B)(v) and 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 was expressly followed in an opinion of this court in United States v. Andress, 943 F.2d 622 (6th Cir.1991), cert. denied, 112 S.Ct. 1192 (1992).

Nevertheless, defendant asks us to adopt views expressed in a dissenting opinion in Chapman. As we are not at liberty to do so, the sentence is affirmed.

* The Honorable Frank M. Coffin, Senior Circuit Judge, United States Court of Appeals for the First Circuit, sitting by designation