United States v. Robert James Stoneking

60 F.3d 399, 1995 U.S. App. LEXIS 16164, 1995 WL 396156

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 3, 1995
• Docket: 94-1236
• Status: Published

Opinions

McMILLIAN, Circuit Judge.

Robert James Stoneking appeals from a final order entered in the District Court¹ for the Southern District of Iowa denying his motion to reduce his sentence. A panel of this court reversed and remanded for resen-tencing. On the court’s own motion, the case was reheard en bane following supplemental briefing. For the reasons discussed below, we affirm the order of the district court.

The following statement of background facts is taken in large part from the panel opinion which was vacated by the order granting rehearing en banc. Stoneking was indicted on four counts of distribution of lysergic acid diethylamide (LSD), a Schedule I controlled substance. Under a plea agreement, he entered a plea of guilty to one count of conspiracy to distribute LSD in violation of 21 U.S.C. § 846. In the plea agreement, he admitted that he had conspired to distribute LSD weighing more than 10 grams, including its carrier medium, blotter paper. (According to the presentence report (PSR), the actual combined weight of the LSD and the blotter paper was 10.54 grams.) Under 21 U.S.C. § 841(b)(l)(A)(v), a mandatory minimum sentence of 10 years is imposed for a drug offense involving “10 grams or more of a mixture or substance containing a detectable amount of [LSD].” The plea agreement acknowledged that the offense carried that statutory mandatory minimum sentence. The district court initially imposed a sentence of 10 years (120 months) in conformity with the mandatory minimum sentence. (The PSR calculation was offense level 30 and criminal history category I for a sentencing guideline range of 97 to 121 months.)

Later, on motions of the government, the district court reduced Stoneking’s sentence to 78 months (July 1993) and then to 72 months (September 1993) for substantial assistance to the government. The motions to reduce encompassed the downward departure below a mandatory minimum sentence contemplated by both U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).

Still later, the guideline that determines the calculation of the amount of LSD involved in a drug offense was modified by Amendment 488. See U.S.S.G. § 2Dl.l(c) (1993) (effective Nov. 1, 1993). At the time of Stoneking’s initial sentencing, the Guidelines directed that “the weight of a controlled substance ... refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” U.S.S.G. § 2Dl.l(c) (Drug Quantity Table) (1992). The amended guideline alters the method of determining the weight of pure LSD and its carrier medium for sentencing purposes. Amendment 488 now instructs that “[i]n the ease of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the purposes of the Drug Quantity Table.” U.S.S.G. § 2Dl.l(c) (1993). A typical single dose of pure LSD is estimated to weigh .05 mg. See U.S.S.G. § 2D1.1, comment, (n.10) (Typical Weight Per Unit Table) (1990).

On its own motion, the district court requested supplemental briefing from the parties on whether a further reduction in Sto-neking’s sentence would be appropriate in light of the amended guideline. Information from the probation office showed that Sto-neking had been responsible for distribution of 1773 dosage units of LSD. Under the amended guideline, the number of dosage units is multiplied by 0.4 mg per dose, resulting in a recalculated weight of 709 mgs. The district court thus determined that recalculation of the sentence under the amended guideline would result in a guideline sentencing range of 33^41 months (offense level 20 and criminal history category I). After consideration of the arguments of the parties, the district court declined to reduce Stone-king’s sentence through recalculation of the weight of the LSD under the amended guideline. The district court found that “since [Stoneking] would have been subject to the statutory [mandatory] minimum sentence contained in 21 U.S.C. § 841(b)(1)(A), [Sto-neking] is still subject to a 120-month sentence and the amended guideline provides no basis for relief from that mandatory minimum sentence.” United States v. Stoneking, Crim. No. 91-114, slip op. at 1 (S.D.Iowa Dee. 22, 1993). The district court held that the amended guideline was in conflict with the mandatory minimum sentence and thus did not apply. (The district court later reduced Stoneking’s sentence to 60 months to ensure uniformity in departure for substantial assistance among the several participants in the conspiracy; that reduction is not relevant to this appeal.) This appeal followed.

For reversal Stoneking argues the district court erred in calculating the weight of LSD on the basis of the LSD and carrier medium, instead of using the per dose weight set forth in the amended guideline, to determine the applicability of a mandatory minimum sentence. He argues the amended guideline should apply to determine the weight of LSD for both the applicability of a minimum mandatory sentence and the applicable guideline sentencing range. In other words, Stone-king argues a single or unitary method should be used to calculate the weight of LSD for sentencing purposes, that is, the per dose weight set forth in the amended guideline, and not a “dual” method, that is, one to determine the applicability of a minimum mandatory sentence and another to determine the applicable guideline sentencing range. He argues that the dual method is so arbitrary and capricious that it violates due process.

As noted above, 21 U.S.C. § 841(b)(l)(A)(v) provides for a mandatory minimum sentence of 10 years for a conviction for a drug offense involving more than 10 grams of a “mixture or substance containing a detectable amount” of LSD. In Chapman v. United States, 500 U.S. 453, 461, 111 S.Ct. 1919, 1925, 114 L.Ed.2d 524 (1991), the Supreme Court concluded that the key term “mixture or substance” in 21 U.S.C. § 841(b)(1) required sentencing based on the entire weight of the LSD and its carrier medium and not the weight of the pure drug alone. The Court defined “mixture or substance” to require the LSD to be “commingled” with the carrier medium and thus rejected the argument that an inclusive definition could require including the weight of substantially heavier “containers” such as a glass vial or a car in which the LSD is transported. 500 U.S. at 462-63, 111 S.Ct. at 1925-26 (drug and carrier medium must be “blended together so that the particles of one are diffused among the particles of the other”; LSD transported in glass vial or in a car has not “chemically bonded” with either vial or ear). As noted above, at the time Chapman was decided, the guideline then provided that “the weight of a controlled substance ... refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” U.S.S.G. § 2Dl.l(c) (1992). In short, at that time, the guideline and the statute were consistent. However, the amended guideline substituted a new and substantially less stringent method for calculating drug weight. The difference is illustrated by the facts of the present case. Under the old guideline and Chapman, the total weight was 10.54 grams, but under the amended guideline, the total weight is less than 1 gram (709 mgs). The sentencing consequences are dramatic. Under the old guideline and Chapman, Stone-king is subject to the 10-year mandatory minimum sentence. However, under the amended guideline, the minimum mandatory sentence provisions would not apply at all and the applicable guideline sentencing range would be 33 — 41 months.

The guidelines themselves provide the answer to the question of how to reconcile the amended guideline and the mandatory minimum sentence. In general, when a statute and a guideline conflict, the statute controls. The guidelines specifically address the conflict between a guideline sentencing range and a mandatory minimum sentence and provide that “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable Guideline range, the statutorily required minimum sentence shall be the Guideline sentence.” U.S.S.G. § 5Gl.l(b). Even more specifically, the commentary to the amended guideline anticipated that the amended guideline would create a dual method of calculating the weight of LSD for sentencing purposes and expressly stated that “this approach [referring to the per dose method set forth in the amended guideline] does not override the applicability of ‘mixture or substance’ for the purpose of applying any mandatory minimum sentence,” citing Chapman and U.S.S.G. § 5Gl.l(b). This commentary is a “binding interpretation” of the amended guideline which federal courts cannot disregard as long as the commentary does not “run afoul of the Constitution or a federal statute, and it is not ‘plainly erroneous or inconsistent’ with [that guideline].” Stinson v. United States, — U.S. -, -, 113 S.Ct. 1913, 1920, 123 L.Ed.2d 598 (1993). The commentary at issue does not violate the Constitution or a federal statute and is not plainly erroneous or inconsistent with the amended guideline. Thus, the commentary to the amended guideline clearly indicates that where the per dose approach conflicts with the mandatory minimum sentence approach, the mandatory minimum approach prevails. See United States v. Andress, 47 F.3d 839, 840-11 (6th Cir.1995); United States v. Hanlin, 48 F.3d 121, 124-25 (3d Cir.1995); United States v. Neal, 46 F.3d 1405, 1408-09 (7th Cir.1995) (banc) (see list of cases at 1410-11), cert. granted, — U.S. -, 115 S.Ct. 2576, 132 L.Ed.2d 826 (1995). But see United States v. Muschik, 49 F.3d 512, 515-16 (9th Cir.1995) (relying upon analysis in panel opinion in the present case).

Even if the commentary did not state that it does not purport to override Chapman, we do not think the amended guideline could do so. The Sentencing Commission cannot override Congress or the Supreme Court’s decision in Chapman to establish new mandatory minimum sentences by amending the guidelines. See United States v. Neal, 46 F.3d at 1409; United States v. Boot, 25 F.3d 52, 55 (1st Cir.1994).

Stoneking also argues the dual weight method creates an arbitrary and capricious distinction between drag offenders and violates due process. We disagree. The dual weight method does not violate due process because it increases the penalty for those persons who are involved in greater quantities of LSD as measured by the actual weight of the LSD as it is distributed, including the carrier medium. This is a rational basis for punishment. See Chapman, 500 U.S. at 465, 111 S.Ct. at 1927-28 (sentencing on basis of “street weight” is rational); United States v. Neal, 46 F.3d at 1409-10 & n. 5 (describing how mandatory minimum sentencing creates very steep “cliff’ unlike guidelines which reflect gradual increase).

In sum, the district court did not err in calculating the weight of LSD on the basis of the LSD and carrier medium, instead of using the per dose weight set forth in the amended guideline, to determine the applicability of a mandatory minimum sentence. The district court correctly sentenced Sto-neking to the mandatory minimum sentence.²

Stoneking also argues the district court should have granted him a 3-point reduction for acceptance of responsibility under Amendment 459, Guideline § 3E1.1(b)(2) (1992). The district court allowed a 2-point reduction under the old guideline. Amendment 459 is not one of the amendments listed in U.S.S.G. § 1B1.10 comment, (app. n. 1) as eligible for retroactive consideration under 18 U.S.C. § 3582(c)(2), and this court has held that it does not apply retroactively. United States v. Dowty, 996 F.2d 937, 939 (8th Cir.1993) (per curiam). We hold that the district court did not err in refusing to apply Amendment 459 retroactively.

Accordingly, the order of the district court is affirmed.

1 . The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa.

2 . The district court granted the government’s motions to depart from the guidelines for substantial assistance pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 and sentenced Stoneking to sentences below the applicable mandatory minimum sentence. The district court's granting the government’s motions for downward departure and sentencing Stoneking to sentences below the applicable mandatory minimum sentence on the basis of substantial assistance are completely separate from the issue addressed in the text of the effect of Amendment 488 on the calculation of the weight of LSD for purposes of determining the applicability of a mandatory minimum sentence.