[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
January 27, 2005
No. 03-13406 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 01-00126-CR-WTM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DORIAN GRANT,
Defendant-Appellant..
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 27, 2005)
Before CARNES, HULL and HILL, Circuit Judges.
HILL, Circuit Judge:
This case is one of first impression in this circuit. It involves the weight of
drugs used in re-sentencing the defendant, Dorian Grant, in a drug conspiracy.
Grant pled guilty to one count of conspiracy to possess with intent to
distribute and conspiracy to distribute 10 grams or more of a ‘mixture or
substance’ containing a detectable amount of lysergic acid dietyhlamide (LSD) in
violation of 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(v), and 846.1
The LSD that Grant and his co-conspirators trafficked in was in liquid form.
The district court sentenced Grant to 108 months’ imprisonment.
Subsequently, that sentence was vacated and Grant was sentenced to 54 months’
imprisonment.
Grant now appeals his re-sentencing.2 We affirm the judgment of the
district court.
I. BACKGROUND
1
In return for Grant’s plea, the government agreed to dismiss count 2 of the indictment
(possessing LSD with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)).
At his initial sentencing hearing, the district court informed Grant that the maximum statutory
penalty it could impose would be a sentence of imprisonment of “not less than ten years nor more
than life.” Grant acknowledged to the court that he understood.
2
Grant has not contended either in district court or this court that the
Apprendi/Blakely/Booker line of decisions affect the validity of his sentence. Apprendi v. New
Jersey, 120 S.Ct. 2348 (2000); Blakely v. Washington, 124 S.Ct. 2531 (2004); United States v.
Booker, 125 S.Ct. 738 (2005).
2
A. Factual Background
The facts are not in dispute. The LSD distributed by college senior Grant
and his co-conspirators was contained in water. The weight of the pure LSD alone
was 0.1263 grams, the equivalent of 2526 dosage units or “hits.” The aggregate
weight of the water and the pure LSD was 103.7 grams (liquid LSD), or
approximately one-third of the liquid contents found in a soda can.
B. Procedural Background
1. Initial Sentencing
Grant’s indictment charged, and Grant pleaded guilty to, a count containing
a specific drug quantity, i.e., 10 grams or more of a mixture or substance
containing a detectable amount of LSD. Accordingly, Grant faced a statutory
minimum sentence of 10 years. Sections 841(b)(1)(A)(v) and 846.3 Using the
December 16, 2000, edition of the sentencing guidelines manual, the probation
officer, in his presentence investigation report (PSI), attributed 103.7 grams of
LSD to Grant, the weight of the liquid LSD. Grant did not object to the PSI.4
3
Section 841(b)(1)(A)(v) reads in part: “[i]n the case of a violation of subsection (a) of
this section involving . . . 10 grams or more of a mixture or substance containing a detectable
amount of [LSD] . . . . such person shall be sentenced to a term of imprisonment which may not
be less than 10 years or more than life . . . .”
4
Based upon this calculation, the maximum statutory penalty Grant faced was
imprisonment for not less than ten years and not more than life; not more than a $4,000,000 fine;
and at least five years’ supervised release. His projected guideline sentencing range was 151 to
3
Prior to hearing, the government filed a motion for downward departure
pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, for Grant’s substantial
assistance to authorities in investigating and prosecuting others involved in the
LSD conspiracy. In response, the district court departed downwardly from the
120-month statutory minimum sentence and sentenced Grant to 108 months’
imprisonment. Sections 841(b)(1)(A)(v), 846; Section 3553(e); Sections
5K1.1and 5G1.1(b).5 He was specially assessed $100 and given five years’
supervised release.
While Grant’s appeal was pending, his defense counsel alerted the
government and the court to a case that had been overlooked at sentencing. See
United States v. Camacho, 261 F.3d 1071 (11th Cir. 2001), cert. denied, 123 S.Ct.
1940 (2003) (for sentencing guideline purposes, the weight of pure LSD alone
should be used to determine a defendant’s base offense level). In response, the
government filed a motion for summary remand. This court construed the
188 months’ imprisonment.
5
U.S.S.G. § 5G1.1(b), entitled “Sentencing on a Single Count of Conviction,” reads in
full: “Where 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.”
4
government’s motion as a confession of error, vacated Grant’s sentence, and
remanded the case for re-sentencing.
2. Re-sentencing
At re-sentencing, over objections of defense counsel, the district court again
found the 120-month statutory minimum sentence under Section 841(b)(1)(A)(v)
to be the baseline from which to sentence Grant a second time. At hearing, the
district court stated that, “[i]n the Court’s opinion there’s no question that liquid
LSD is a mixture or substance containing a detectable amount of LSD, thereby
triggering Section 841(b)(1)(A)(v) . . . I agree with the probation officer that the
total weight of the liquid LSD solution must be used to determine the mandatory
minimum sentence.” (Emphasis added.)
This time the district court departed downwardly, not by twelve months, but
by sixty-six months. It imposed a sentence upon Grant of fifty-four months, half
his original sentence. See Sections 841(b)(1)(A)(v), 846; Section 3553(e);
Sections 5K1.1, 5G1.1(b). Grant now appeals his re-sentencing.
II. ISSUES PRESENTED
A. In applying the mandatory statutory minimum penalty provision, should
the district court consider the weight of the liquid LSD, as “a mixture or substance
5
containing a detectable amount of LSD” under Section 841(b)(1)(A)(v), or the
weight of the pure LSD alone?
B. As the sentence first entered by the district court was twelve months
below the statutory mandatory minimum, is it bound, upon remand, to consider the
statutory base offense level, 120 months, or may it consider the sentencing
guidelines base offense level, fifteen to twenty-one months under Section
2D1.1(c)?
III. STANDARD OF REVIEW
This court reviews the district court’s application of the sentencing
guidelines de novo and its findings of fact for clear error. Camacho, 261 F.3d at
1073, citing United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998).
IV. DISCUSSION
A. Contentions of the Parties
1. The First Issue
a. Grant’s Contentions as to the Weight of Liquid LSD Issue
Grant contends that he should be sentenced to no more than fifteen to
twenty-one months’ imprisonment under the sentencing guidelines, based upon his
criminal history, with adjustment for acceptance of responsibility. See Camacho,
261 F.3d at 1074. He argues that, ‘as he was convicted of’ selling .1234 grams of
6
pure LSD, this is the amount of drugs in which he trafficked under Camacho.6 Id.
He claims that in this circuit only the weight of the pure LSD alone, not the liquid
LSD, can be used in determining his sentence under the sentencing guidelines. Id.
In making this argument, Grant acknowledges that the analysis set forth in
Camacho stopped short at the sentencing guidelines, and did not reach the drug
weight issue in the context of the penalty statute. Nevertheless, he claims the
same result should occur. He does this by trying to distinguish Chapman v. United
States, 111 S.Ct. 1919 (1991) and Neal v. United States, 116 S.Ct. 763 (1996),
from his case.
The Supreme Court held in both Chapman and Neal that LSD impregnated
into blotter paper is a ‘mixture or substance’ containing LSD within the meaning
of the penalty statute; therefore the weight of the carrier medium should be
included in determining the appropriate sentence for trafficking in LSD.
Chapman, 111 S.Ct. at 1924-26; Neal, 116 S.Ct. at 769. Grant avers, however,
that neither Chapman nor Neal involved liquid LSD and should be read only in the
context of LSD mounted on a carrier medium such as blotter paper.
6
Grant does not reference the plea agreement in which he pled guilty to a specific number
of grams of drugs.
7
In essence, Grant is arguing that the LSD here was in an intermediate
wholesale distribution form, unlike the retail consumer form found in Chapman
and Neal. He claims it is much too bulky and much too diluted to be marketed
directly to consumers.7 It is merely two separate substances contained together in
a vial, with no fixed ratio between them. He asserts that there is no enfolding, no
bonding, no impregnating. Similar to clothes contained in a suitcase, or
individuals confined by a courtroom, the LSD is merely encased in water, not
mixed with it or in it.
b. The Government’s Contentions as to the Weight of the LSD Issue
The government avers that this is a straightforward case. The statute
provides for a 10-year mandatory minimum sentence for possession with intent to
distribute 10 grams or more of a mixture or substance containing a detectable
amount of LSD. Section 841(b)(1)(A)(v). Insofar as the penalty statute is
concerned, Grant pled guilty to conspiracy to distribute a specific amount of drugs,
i.e., 10 grams or more. Id.
Although the facts in Chapman involved LSD mounted on a carrier
medium, i.e., blotter paper, the government argues that the Supreme Court
7
Grant concedes that consumers can get high by drinking liquid LSD, although this is not
the way LSD is typically marketed.
8
nevertheless defined ‘mixture’ according to its plain and ordinary terms.
Chapman, 111 S.Ct. at 1925-26. In the case of liquid LSD, the two components
are intermingled, although they can perhaps be regarded as having a separate
existence. Id. (where Webster’s Third New International Dictionary 1449 (1986)
defines a “mixture” to include “a portion of matter consisting of two or more
components that do not bear a fixed proportion to one another and that however
thoroughly commingled are regarded as retaining a separate existence”).
The government claims that what Grant distributed, what he was charged
with, and what he pled guilty to, meet the statutory criteria for the imposition of
the ten year mandatory minimum sentence. In addition, the government argues
that it is the weight of the liquid LSD that should be considered, not the weight of
the pure LSD, because the weight of the pure LSD is so minuscule that it does not
adequately reflect the seriousness of the crime, i.e., 2526 drug-induced highs. See
Camacho, 261 F.3d at 1075, citing United States v. Turner, 59 F.3d 481, 486 (4th
Cir.1995)(quoting Section 2D1.1(c), comment. (n.16)).
In support of its argument that the district court acted properly in this case,
the government cites case law from other circuits holding that liquid LSD is a
‘mixture or substance’ for purposes of the statutory mandatory minimum sentence,
and that the guidelines range is trumped by Section 5G1.1(b). See United States v.
9
Morgan, 292 F.3d 460, 461 (5th Cir.), cert. denied, 123 S.Ct. 45 (2002)(vacating
guidelines sentence in liquid LSD case and remanding for imposition of 10-year
minimum sentence mandated by Section 841(b)(1)(A)(v)); see also United States
v. Keresztury, 293 F.3d 750, 759 (5th Cir. 2002)(following Morgan in liquid LSD
case); United States v. Ingram, 67 F.3d 126, 129 (6th Cir. 1995)(in pre-Neal liquid
LSD case, directing district court to apply mandatory minimum sentence on
remand if guidelines range is less); cf. Turner, 59 F.3d at 491-92 (in pre-Neal
liquid LSD case suggesting that district court consider on remand whether
statutory minimum sentence under Section 841(b)(1) and Section 5G1.1(b)
override otherwise applicable guidelines range).
2. The Second Issue
a. Grant’s Contentions to the Vested Downward Departure at Re-
sentencing Issue
Grant claims that the district court erred in finding that Section 5G1.1(b)
applied upon remand. Citing no authority, he claims that it does not apply to cases
in which the defendant has already been granted a downward departure from the
statutory minimum.
Where ordinarily, Grant claims, Section 5G1.1(b) trumps the otherwise
applicable guidelines range of Section 2D1.1(c), substituting the statutory
10
minimum of ten years, it does not apply on remand once a defendant has already
earned a downward departure under Section 3553(e) and Section 5K1.1. Grant
concedes that he is surprised to find no decisional law squarely addressing this
issue.
b. The Government’s Contentions as to the Vested Downward
Departure at Re-Sentencing Issue
In rebuttal of Grant’s argument that he has a vested right to have no
statutory mandatory minimum sentence be applied on remand, the government
cites United States v. Stinson, 97 F.3d 466 (11th Cir. 1996). Stinson holds that an
original sentence is wiped away by a vacatur, leaving the district court with a
clean slate upon which to write at a defendant’s re-sentencing. Id. at 469.
The government does concede that Grant had the right to have a Section
5K1.1 motion filed on his behalf at re-sentencing. One was filed. In response, the
district court halved Grant’s original sentence of 108 months to 54 months.
B. The First Issue - The Weight of the LSD
1. The Statutes and the Sentencing Guidelines
Section 841(b)(1)(A)(v) provides for a mandatory minimum of 10 years’
imprisonment for a violation of subsection (a) [making it unlawful to knowingly or
intentionally manufacture, distribute, dispense, or possess with intent to
11
manufacture, distribute, or dispense, a controlled substance] involving “10 grams
or more of a mixture or substance containing a detectable amount of [LSD].” The
sentencing guidelines parallel the statutory language and requires the base offense
level to be determine based upon the weight of a “mixture or substance containing
a detectable amount of” LSD. Section 2D1.1(c).
2. Supreme Court Cases and Sentencing Guidelines’ Amendment 488
In 1991, in Chapman, the Supreme Court held that the phrase “mixture or
substance containing . . . . LSD” in Section 841(b)(1) refers to “the weight of the
carrier medium upon which the drug is mounted.” Chapman, 111 S.Ct. at 1929.
Two years later, the sentencing commission promulgated an amendment to the
guidelines, reducing the penalties for trafficking in carrier-mounted LSD by
calculating base offense levels, not at the weight of the LSD plus carrier medium
as in Chapman, but by using a standard dosage formula of 0.4 mg. per dose of
LSD (amendment 488). See U.S.S.G. § 2D1.1(c), n. (H).
In 1996, in Neal, the Supreme Court held that, when calculating penalties
under the statute, amendment 488 does not overcome Chapman’s definition of
“mixture or substance,” and principles of stare decisis require that it adhere to its
earlier decision in Chapman. Neal, 116 S.Ct. at 766. In sum, the sentencing
commission has no authority to amend the penalty statute, the guidelines’
12
calculation is independent of the statutory calculation, and the statute controls if
they conflict. Id. at 768.8 The sentencing commission’s dose-based method
cannot be squared with Chapman. Id.
3. Eleventh Circuit Precedent
Grant’s initial sentence was vacated and remanded by this court for re-
sentencing by the district court in light of Camacho, at that time, a case of first
impression. This court held in Camacho that, as to the sentencing guidelines, with
regard to LSD contained in a liquid solution, the weight of the pure LSD alone
should be used to ascertain the appropriate base offense level. See also Turner, 59
F.3d 481(prior to Neal, in liquid LSD case, for purposes of the sentencing
guidelines, only the weight of the pure LSD should be used in determining
defendant’s base offense level); United States v. Ingram, 67 F.3d 126, 128 (6th Cir.
1995); United States v. Jordan, 842 F.Supp. 1031, 1033-34 (M.D.Tenn. 1994)(in
liquid LSD case, only the weight of the pure LSD should be used). As Camacho
8
Counsel for Grant in this case argued before the Supreme Court in Neal, raising the
identical issue as he does here, i.e., that, as the sentencing commission is the agency charged with
interpretation of penalty statutes and expert in sentencing matters, its construction of Section
841(b)(2) should be given deference under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 104 S.Ct. 2778 (1984). See Neal, 116 S.Ct. at 766. The Supreme Court rejected
this argument in Neal, and not surprisingly, we reject it here.
13
did not examine the drug weight issue in the context of the penalty statute, as is
present in this appeal, this is an issue of first impression in this circuit.
4. Other Circuits’ Precedent
Two circuits have held in liquid LSD cases that, although the weight of the
pure LSD alone should be used in determining a defendant’s base offense level
under the sentencing guidelines, a district court could consider the weight of the
liquid LSD when determining the applicability of the mandatory statutory
minimum. See Morgan, 292 F.3d 460; Ingram, 67 F.3d 126. Both cases are
distinguished from the case before us, as, Morgan was reviewed by the Fifth
Circuit for plain error and Ingram was decided prior to Neal. Nevertheless we
find them helpful in our discussion. See also Keresztury, 293 F.3d 750 (5th Cir.
2002).
5. The Facts Before Us
Morgan most closely aligns with the facts before us. Although the amount
of pure LSD in Morgan was less than 10 grams, Morgan’s guilty plea included his
possessing, with intent to distribute, 10 grams or more of LSD, triggering the ten-
year minimum sentence mandated by Section 841(b)(1)(A)(v). Morgan, 292 F.3d
at 464-66. Under Section 5G1.1(b), the Morgan court used the statutory minimum
because it was greater than the maximum sentence under the guidelines. Id.
14
(holding that the market-oriented approach used in Chapman warrants including
the weight of the liquid solution in determining a mandatory minimum sentence).
The same is true in Grant’s case. Unlike the defendant in Camacho, Grant’s
indictment charged, and Granted pleaded guilty to, a count containing a specific
drug quantity, i.e., 10 or more grams. Accordingly, Grant faced a statutory
minimum sentence of ten years. Section 841(b)(1)(A)(v); Section 5G1.1(b).
Similarly to the defendant in Morgan, Grant was informed by the district
court at his initial sentencing that the maximum statutory penalty it could impose
would be a sentence of imprisonment of “not less than ten years nor more than
life.” See note 1 supra. Grant acknowledged to the court that he understood.
While Grant earnestly urges us to extend the weight of the pure LSD rationale of
Camacho to statutory minimum cases, our reading of Chapman makes it clear that
we may not do so. See Chapman, 111 S.Ct. at 1926.
We conclude that the district court should use the weight of the liquid LSD
in applying Grant’s statutory minimum sentence. Under Chapman, liquid LSD
can be characterized as the carrier medium of choice at the wholesale level. Id.
LSD on blotter paper, LSD in gel form or LSD on a sugar cube can be
characterized as the carrier mediums of choice at the retail end of the distribution
chain. Id. As the Supreme Court noted, LSD drug dealers are free to choose their
15
own carrier medium, scrutinize its weight, and, by so doing, act to minimize their
potential sentences. Id. at 1929 n.6.
C. The Second Issue - Vested Downward Departure at Re-Sentencing Issue
Without citing any authority, Grant claims that Section 5G1.1(b) does not
apply to cases on remand in which the defendant has already been granted a
downward departure from the statutory minimum. The obvious invalidity of this
claim may explain why it has not been heretofore asserted and decided.
Grant claims that once the district court made the decision to departure
downward at his initial sentencing, it became no longer a sentencing option, but an
“accomplished historical fact,” and, “starting over” as if the downward departure
had not yet “vested” would, in essence, punish Grant for having successfully
challenged his sentence. See North Carolina v. Pearce, 89 S.Ct. 2072 (1969). His
argument overlooks the fact that his resulting sentence is half that first imposed.
Grant does acknowledge that the law of this circuit, as well as that of six
other circuits is, as a general matter, that when a sentence is remanded on appeal,
the sentencing process commences again de novo. See Stinson v. United States, 97
F.3d 466, 469 (11th Cir. 1996). The vacatur of Grant’s original sentence voids the
sentence in its entirety and the slate is wiped clean. Id.
16
The district court was free to reconstruct the sentence utilizing any of the
sentence components. Id. (citations omitted). Here the district court properly
started at the statutory minimum and departed downward. See also United States
v. Head, 178 F.3d 1205, 1206-08 (11th Cir. 1999).
V. CONCLUSION
The judgment of the district court is affirmed.
AFFIRMED.
17