United States v. Valerio

• Court: Court of Appeals for the First Circuit
• Decided: January 27, 1998
• Docket: 97-1468
• Status: Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit

                                 ____________________



          No. 97-1468



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   MANUEL VALERIO,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                        and Dowd, Jr.,* Senior District Judge.
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                                _____________________



               Randy Olen,  with whom  John M. Cicilline  was on  brief for
               __________              _________________

          appellant.

               Margaret E.  Curran, Assistant United States  Attorney, with
               ___________________

          whom Sheldon Whitehouse,  United States Attorney, and  Kenneth P.
               __________________                                __________

          Madden,  Assistant  United  States Attorney,  were  on  brief for
          ______

          appellee.


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                                   January 26, 1998

                                 ____________________


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          *  Of the Northern District of Ohio, sitting by designation.



DOWD, Senior District Judge.   The sole issue raised by
                    DOWD, Senior District Judge.
                          _____________________



          this  appeal of  the  defendant's sentence,  based on  his guilty



          plea,  is  whether the  defendant  was entitled  to  have cocaine



          base(crack)  separated  from  the  cocaine  powder,  as  packaged



          together in three containers. The defendant asserted that the two



          forms of cocaine should have been  separated prior to calculating



          the offense level.   The sentencing court disagreed  and we agree



          with the sentencing court and thus affirm.



                    The  defendant  was  charged   in  an  indictment  with



          possession  with intent  to deliver  cocaine in  violation of  21



          U.S.C.   841(a)(1).   He entered a plea of  guilty.  On June  28,



          1996, Providence Rhode  Island police officers executed  a search



          warrant at  the  defendant s home  and  seized three  bags,  each



          containing cocaine powder and  cocaine base.  The total  combined



          weight of powder and cocaine base was 123.4 grams.  Additionally,



          the  police discovered a separate container containing 7.43 grams



          of crack cocaine.1  

                              
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          1  The  defendant entered his plea of guilty on December 6, 1996.

          The United States  Attorney recited the factual basis  in part as

          follows:



                    . . . that on June 28, 1996, at approximately

                    6:00   p.m.,   Providence   police   officers

                    executed a search  warrant at  a first  floor

                    apartment . .  . which  was the  home of  the

                    defendant  Manuel Valerio.   At the  time the

                    officers executed the  warrant, the defendant

                    was  at home  . .  .  he was  advised of  his

                    Miranda  warning by  the officers.   At  that
                    _______

                    time  he agreed  to show the  police officers

                    where the drugs  in his  house were  located.

                    He  led the officers to the master bedroom in

                    the apartment.  Under the bed he pulled out a

                    bag  of rice.  Examination of that bag showed



                                         -2-



The  district  court  calculated the  defendant s  base



          offense level as  32 pursuant to   2D1.1(c)(4)  of the Sentencing



          Guidelines  drug quantity table.2   The government argued and the



          sentencing court agreed  that Note A to    2D1.1(c) applied which



          indicates that if  a mixture or substance contains  more than one



          controlled  substance, "the  weight  of  the  entire  mixture  or



          substance is assigned to the controlled substance that results in



          the greater  offense level."   Consequently, the three  bags with



          weight of 123.4 grams  was treated as crack cocaine.3   The Court



                              
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                    that it contained  three plastic  bags.   The

                    plastic bags each contained a substance later

                    determined  in total to  be 123.4 grams  of a

                    mixture containing powder cocaine and cocaine

                    base  . .  . in  a  bedroom closet,  officers

                    seized  a baby  wipes container.   Inside  of

                    that were  two bags  of cut  and  also a  bag

                    containing 7.43 grams of cocaine base.  



                    The defendant  agreed with the  above factual

                    basis.  



          2   This  subsection applies  to offenses  involving at  least 50

          grams, but less than 150 grams of crack cocaine.  



          3  Prior  to sentencing, the defendant moved  for the opportunity

          to  have a  forensic  chemist separate  and  measure the  cocaine

          powder and the cocaine base.   The motion was unopposed. However,

          the defendant did not follow up on the request.  Nonetheless, the

          defendant  argues that had  the crack cocaine  been isolated from

          the  cocaine powder, the resulting  base offense level would have

          been 26, with a net offense level of 25, which when combined with

          the defendant's Criminal History of II, would have provided for a

          range of 63-78 months.  In order  to lower the base offense level

          to 26,  the weight of the  separated cocaine base,  when added to

          the 7.43 grams  of crack cocaine in the  separate container would

          have to have  been less  than 12.57  grams of cocaine  base as   

          2D1.1(c)(7) provides  for a  base offense level  of 26  where the

          crack  cocaine is not more than  20 grams.  It  is not clear from

          the record as  to why counsel  for the defendant  is of the  view

          that the "separated" crack cocaine  in the three containers would

          have weighed less than 12.57 grams.  



                                         -3-



found  that the  offense level was  31 with a  Guideline Range of



          121-151  months by assessing a two  level increase for possession



          of  a  firearm and  a  three  level  decrease for  acceptance  of



          responsibility.  



                    The  government moved for a downward departure based on



          substantial  assistance (   5K1.1)  and  the  Court  reduced  the



          sentence below the mandatory  minimum to a term of 60 months from



          which the defendant now appeals.4  



                    The  emerging issues in  determining the weight  of the



          offending  controlled substances5  was partially  responsible for



          the subsequent amendment 484 to the Sentencing Guidelines  and in



          which the  defendant takes comfort  in this case.   Amendment 484



          which  became  effective   November  1,  1993  and   amended  the



          commentary to   2D1.1 by deleting "21 U.S.C.   841" and inserting



          in lieu thereof:



                    "21  U.S.C.      841,  except   as  expressly

                    provided.    Mixture  or  substance does  not

                    include materials that must be separated from

                    the   controlled    substance   before    the

                    controlled substance can  be used.   Examples

                    of such materials include the fiberglass in a

                    cocaine/fiberglass  bonded suitcase,  beeswax

                              
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          4  The  defendant's sentencing range, prior to  departure was 121

          to 151 months.   The prosecution advocated a  seven year sentence

          and  the defendant  a three  year sentence.   The  district court

          indicated  it would,  in effect,  cut  the sentence  in half  and

          sentence  the defendant  to the  sixty-month  term.   Defendant's

          counsel reasons that had the cocaine powder and cocaine base been

          separated for sentencing purposes with a resulting range of 63 to

          78 months, cutting the sentence in  half would have resulted in a

          32 month sentence.  Hence, the appeal.  



          5   See United States  v. Mahecha-Onofre, 936  F.2d 623 (1st Cir.
                  _____________     ______________

          1991) and  United States  v. L pez-Gil, 965  F.2d 1124  (1st Cir.
                     _____________     _________

          1992).



                                         -4-



in a cocaine/beeswax statute, and waste water

                    from   an   illicit    laboratory   used   to

                    manufacture a controlled substance.  If  such

                    material cannot readily be separated from the

                    mixture  or substance  that appropriately  is

                    counted in the Drug Quantity Table, the court

                    may use any  reasonable method to approximate

                    the  weight of the mixture or substance to be

                    counted.



                    An  upward   departure  nonetheless   may  be

                    warranted  when  the   mixture  or  substance

                    counted  in   the  Drug  Quantity   Table  is

                    combined with  other, non-countable  material

                    in an unusually sophisticated manner in order

                    to avoid detection.".



                    It is without dispute that the defendant possessed with



          intent  to  distribute  a  substance  containing  two  controlled



          substances.  Nonetheless, because the two are not ingested in the



          same manner, (the  powder is  inhaled  and the  crack  is smoked)



          the  defendant argues  they  must  be  separated  for  sentencing



          purposes  in reliance  on the  Amended Commentary  to U.S.S.G.   



          2D1.1  as the  cocaine powder  and cocaine  base come  within the



          concept of "materials  that must be separated from the controlled



          substance before the controlled substance can be used."  However,



          as indicated in United States v.  Campbell, 61 F.3d 976, 982 (1st
                          _____________     ________



          Cir. 1995), cert. denied, 116  S. Ct. 1556 (1996) "the commentary
                      ____________



          excludes only materials  that are unusable or  unmarketable, such



          as those  used to  transport the  controlled substance,  or waste



          products  that are discarded  before the controlled  substance is



          put  into the  distribution  chain."   (Citations  omitted).   As



          neither  the  cocaine  powder  or  cocaine  base  is unusable  or



          unmarketable,  the revisions  to the  commentary to  U.S.S.G.    


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2D1.1  provided by  Amendment 484  are  of no  assistance to  the



          defendant.6  



                    Accordingly, the district court's judgment is AFFIRMED.
                                                                  AFFIRMED


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          6  Defendant's counsel, at the  sentencing hearing, advocated the

          separation contending that finding the two substances together is

          illogical and went on to state that he could not explain  why the

          cocaine base  and cocaine  powder were mixed.   No  testimony was

          offered as to why they were mixed,  but in our view the motive or

          lack of motive for the mixture is not relevant.  



                                         -6-