United States v. Jeff Root

69 F.3d 540, 1995 U.S. App. LEXIS 36034, 1995 WL 623799

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 23, 1995
• Docket: 95-1397
• Status: Unpublished

Opinion

69 F.3d 540

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within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

No. 95-1397.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 18, 1995.1
Decided Oct. 23, 1995.

Before POSNER, Chief Judge, and CUMMINGS and BAUER, Circuit Judges.

ORDER

Jeff Root appeals the sentence imposed by the district court. Root pled guilty to conspiracy to distribute 3,902 doses of LSD, in violation of 21 U.S.C. Sec. 846, and in 1994 he was sentenced to a statutory mandatory minimum sentence of 120 months' imprisonment. The weight of the LSD used to determine the base offense level was calculated in accordance with 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.

Root wishes to be sentenced under the Sentencing Commission's revised Sec. 2D1.1 of the Guidelines, effective November 1, 1993, which permits an alternative method of weighing that uses a presumptive weight of 0.4 grams for each dosage of LSD. The Guidelines' method would measure Root's LSD at only 1.56 grams (instead of the statutory weight of 27 grams), which would have placed Root in the 57-to-61 month range. The court, however, found that Chapman required it to impose the 10-year statutory mandatory minimum, 21 U.S.C. Sec. 841(b)(1)(A)(v). Our opinion in United States v. Neal, 46 F.3d 1405 (1995) (en banc), cert. granted, 63 U.S.L.W. 3889 (U.S. June 19, 1995) (No. 94-9800), now mandates this holding. Neal also rejects the due process arguments raised by Root. Root cites United States v. Muschik, 49 F.3d 512 (9th Cir.1995). The Ninth Circuit is the only circuit taking a position that opposes our holding in Neal, and we decline to follow it.

Since the amount of 27 grams of LSD puts Root well beyond the ten gram limit, the statute requires a ten year sentence, which the district court properly imposed. On the basis of Neal, the judgment of the district court is AFFIRMED.

1 After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that the parties could file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Cir.R. 34(f). Upon consideration of the Appellee's statement, the appeal is submitted on the briefs and the record