September 13, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1088
UNITED STATES,
Appellee,
v.
AARON S. LOWDEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
Arlene C. Halliday on brief for appellant.
Jay P. McCloskey, United States Attorney, and Michael M. DuBose,
Assistant United States Attorney, on brief for appellee.
Per Curiam. In light of the government's concession
that the weight of "liquid LSD" should have been recalculated
in accordance with the 1993 amendment to U.S.S.G. 2D1.1(c),
the amended sentence is hereby vacated and the case remanded
for resentencing. See Loc. R. 27.1. The parties cannot by
agreement create error where none exists but we agree that,
at least on the surface, the commentary arguably contemplates
some adjustment where liquid LSD is involved.
The government requests that we take this opportunity to
set forth the proper methodology for calculating the weight
of liquid LSD under the sentencing guidelines. For several
reasons, we think such a step would be premature. The matter
was never presented to the district court (due in part to the
different position advanced by the government below) and has
not been fully addressed in this court (due in part to the
intervening motion to withdraw submitted by defense counsel).
At least at first glance, several contrasting methods for
resolving the issue appear plausible. See, e.g., United
States v. Jordan, 842 F. Supp. 1031, 1033-34 (M.D. Tenn.
1994);1 U.S.S.G. 2D1.1(c), comment. (n.18). Depending on
the findings reached by the district court on remand, the
possible sentencing ranges or sentences may each fall short
of the applicable five-year mandatory minimum--rendering
1. This case was not cited by appellant and we commend
government counsel for calling it to the court's attention.
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resolution of the issue unnecessary. And defendant will have
new counsel on remand. For these reasons, we think it
preferable to have the district court address the matter in
the first instance, on the basis of all arguments the parties
deem pertinent.
The motion of defendant's counsel to withdraw is
allowed. The motion for appointment of replacement counsel
is denied without prejudice; defendant is directed to file
such a motion with the district court. As defendant will
soon have been incarcerated for five years--the mandatory
minimum--we urge the district court to address these matters
as promptly as possible.
The amended sentence is vacated and the case remanded
for resentencing. The motion to withdraw is allowed. The
motion for appointment of counsel is denied without prejudice
to its submission to the district court.
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