Filed: June 25, 1996
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 94-6071(L)
(CR-91-128-WS)
United States of America,
Plaintiff - Appellee,
versus
Randy Gale Dugger, et al,
Defendants - Appellants.
O R D E R
The Court amends its opinion filed March 19, 1996, as follows:
On page 3, first full paragraph, lines 1-2 -- the words "120
months" and the comma following the word "months" are deleted.
On page 3, first full paragraph, line 8 -- the third sentence
is modified to read:
In short, the district court had discretion to reduce
Appellants' guideline ranges, perhaps to the extent that
the statutory minimum sentence would become the guideline
sentence, see U.S.S.G. § 5G1.1(b).
For the Court - By Direction
/s/ Bert M. Montague
Clerk
Rehearing granted, June 21, 1996 for limited purpose of amending opinion (amended on June 25, 1996)
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-6071
RANDY GALE DUGGER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-6095
MICHAEL EDWARD DUGGER,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Richard C. Erwin, Senior District Judge.
(CR-91-128-WS)
Argued: October 31, 1995
Decided: March 19, 1996
Amended opinion filed: June 25, 1996
Before HALL and WILLIAMS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed in part and remanded in part by unpublished per curiam
opinion.
COUNSEL
ARGUED: Gail Starling Marshall, Rapidan, Virginia, for Appellant.
Lisa Blue Boggs, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee. ON BRIEF: Walter C. Holton, Jr.,
United States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Randy Gale Dugger and Michael Edward Dugger appeal decisions
of the district court denying their motions for modification of their
sentences, see 18 U.S.C.A. § 3582(c)(2) (West Supp. 1995). Appel-
lants argue that Amendment 488 to the Sentencing Guidelines,*
which established a uniform weight per dosage of lysergic acid dieth-
ylamide (LSD) on a carrier medium for purposes of determining a
defendant's base offense level, applies to determinations of LSD
quantity for purposes of applying the statutory minimum penalties of
21 U.S.C.A. § 841(b) (West Supp. 1995).
The Supreme Court rejected Appellants' position in Neal v. United
States, 64 U.S.L.W. 4077 (U.S. Jan. 22, 1996), holding that the adop-
tion of Amendment 488 by the Sentencing Commission does not alter
the manner in which the quantity of LSD on a carrier medium is cal-
culated for purposes of applying a statutory minimum sentence. See
Chapman v. United States, 500 U.S. 453, 461-62 (1991) (holding that
quantity of LSD on a carrier medium is determined, for purposes of
applying statutory penalties, by calculating the weight of the LSD and
its carrier medium). Based on Neal, we affirm the district court's
_________________________________________________________________
* United States Sentencing Commission, Guidelines Manual (Nov.
1993).
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determination that the adoption of Amendment 488 does not override
the method used for determining the quantity of LSD on a carrier
medium for purposes of applying the statutory minimum penalties.
Both Appellants received guideline sentences in excess of
the applicable statutory minimum. The Government concedes
that the district court had discretion to apply Amendment 488 retroac-
tively, see United States v. Turner, 59 F.3d 481, 483 (4th Cir. 1995),
and that retroactive application of Amendment 488 would reduce both
Appellants' guideline ranges to levels substantially below the applica-
ble statutory minimum, thereby making the statutory minimum sen-
tence the guideline sentence, see U.S.S.G. § 5G1.1(b). In short, the
district court had discretion to reduce Appellants' guideline ranges,
perhaps to the extent that the statutory minimum sentence would become
the guideline sentence, see U.S.S.G. § 5G1.1(b). The district court's
opinions denying Appellants' motions for sentence modification do not
make clear, however, whether the district court was aware that it
could reduce Appellants' sentences by applying Amendment 488 retro-
actively and chose not to do so, or was not aware that retroactive
application of Amendment 488 would affect Appellants' sentences.
Accordingly, we remand for the district court to articulate the reasons
underlying its decision. See United States v. Johnson, 935 F.2d 47, 50
(4th Cir.) (noting that district court must articulate reasons for sen-
tencing decisions), cert. denied, 502 U.S. 991 (1991).
AFFIRMED IN PART; REMANDED IN PART
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