United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2004 Decided December 10, 2004
No. 03-3091
UNITED STATES OF AMERICA,
APPELLEE
v.
WAYNE BYFIELD ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 89cr00322-01)
Lisa B. Wright, Assistant Federal Public Defender,
argued the cause for appellant Wayne Byfield. With her on
the briefs was A. J. Kramer, Federal Public Defender. Neil H.
Jaffee, Assistant Federal Public Defender, entered an
appearance for appellant Wayne Byfield.
Patricia A. Heffernan, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Roy W. McLeese,
III, John P. Gidez and Robert D. Okun, Assistant U.S.
Attorneys.
Before: EDWARDS, RANDOLPH, Circuit Judges and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Appellant Wayne
Byfield proposes that a person cannot smoke a mixture of
roughly equal parts sugar and cocaine base. Accordingly, he
says, for sentencing purposes the sugar should be subtracted
from the total weight of the material he was convicted of
possessing. Because the government provided virtually no
evidence contradicting his factual claim, we reverse and
remand.
***
Byfield is serving a 292-month prison term under a
1992 conviction for possession of more than 50 grams of
cocaine base with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). In earlier passes at
the case, we reversed a district court’s mistaken grant of
Byfield’s motion for judgment of acquittal notwithstanding
the verdict, United States v. Byfield, 928 F.2d 1163 (D.C. Cir.
1991), and affirmed his ensuing conviction, United States v.
Byfield, 1 F.3d 45 (Table) (D.C. Cir. 1993) (per curiam). In
2002 Byfield moved pro se for modification of his sentence
under 18 U.S.C. § 3582(c)(2). The district court denied
Byfield’s motion, and he filed a timely notice of appeal.
18 U.S.C. § 3582(c)(2) permits a court to “reduce the
term of imprisonment” of a properly filing defendant whose
“term . . . [was] based on a sentencing range that has
subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o).” Section 1B1.10 of the
Guidelines enumerates retroactive amendments that qualify a
defendant for § 3582(c)(2) relief. Those named include the
amendment invoked by Byfield, Amendment 484 to U.S.S.G.
3
§ 2D1.1, which says that, for sentencing purposes, a drug
“[m]ixture or substance” under § 2D1.1 “does not include
materials that must be separated from the controlled substance
before the controlled substance can be used.” Byfield was
sentenced under § 2D1.1 before Amendment 484 took effect
in 1993.
Byfield was convicted for possessing a mixture of
cocaine base (commonly known as crack) and mannitol
(sugar) that weighed 607.8 grams. Applying the pre-
Amendment 484 version of § 2D1.1 to that weight, the
sentencing court sentenced Byfield to the minimum within the
Level 38 sentencing range (292-365 months). The mixture,
however, comprised about 340 grams (56%) cocaine base and
about 267 grams (44%) mannitol. If the mannitol “must be
separated from the [cocaine base] before the [cocaine base]
can be used,” as Byfield claims, he would qualify for the
Level 36 sentencing range (235-93 months).
Byfield also noted that the initial sentencing and trial
record included no expert testimony that a mixture of sugar
and cocaine base could be smoked. He therefore sought a
hearing, offering to “produce expert testimony that sugar isn’t
a usable substance in cocaine base.”
The district court denied Byfield’s requests for a
modification and for a hearing. “Sugar,” the court held, “is
simply a cutting agent, which . . . may be properly included in
the weight of drugs . . . for sentencing purposes,” citing
Chapman v. United States, 500 U.S. 453, 458-59 (1991). We
review the court’s decision not to conduct a hearing for an
abuse of discretion. United States v. Tidwell, 178 F.3d 946,
949 (7th Cir. 1999).
4
***
We begin by clarifying Byfield’s evidentiary burden.
Section 6A1.3 of the Guidelines allows hearings “[w]hen any
factor important to the sentencing determination is reasonably
in dispute.” U.S.S.G. § 6A1.3. The government conflates
Byfield’s burden of proof for an Amendment 484
modification with his burden for securing a hearing under
§ 6A1.3. Relying on United States v. Sprague, 135 F.3d 1301
(9th Cir. 1998), it argues that Byfield must show “by a
preponderance of evidence that the mixture or substance . . .
contained materials that must be separated to render the
controlled substance usable.” Id. at 1306-07. Once Byfield
made that showing, the burden would shift to the government
“to establish the . . . weight of the controlled substance.” Id.
at 1307.
Whether Sprague is correct, it is inapposite. Sprague
purports only to describe the defendant’s burden of proof
regarding whether a retroactive amendment is applicable. See
id. But § 6A1.3 sets a far lower threshold for a hearing,
requiring only that an important factor be “reasonably in
dispute.” See United States v. Sisti, 91 F.3d 305, 312 (2d Cir.
1996) (reasonable dispute if movant has a relevant “colorable
claim”). The government’s extension of Sprague from
Amendment 484 to § 6A1.3, by contrast, would force a party
to prove, before a hearing, that which he needs a hearing to
prove.
The government also suggests that § 6A1.3 may not
even apply to sentence modifications under 18 U.S.C.
§ 3582(c)(2), but gives no reason why it should not. We can
see no material distinction, for these purposes, between initial
sentencings and § 3582(c)(2) revisions.
5
The record in fact pits some evidence against nothing;
as we’ve said in another context, “something . . . outweighs
nothing every time.” Nat’l Ass’n of Retired Fed. Employees
v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). Byfield
asserted below that, when burned, the mannitol in the disputed
mixture would melt and prevent the cocaine base from
vaporizing to induce a high. On appeal, he also observes that
neither the Sentencing Commission nor the federal courts
have contradicted his assertion. See U.S. SENTENCING
COMM ’N, COCAINE AND FEDERAL SENTENCING POLICY 91
(1995) (not including sugar in a list of common cutting agents
for crack cocaine).
The government’s response in the district court and
here is that sugar is a cutting agent—that is, an added
substance that dilutes drugs to increase distributor
profits—that counts toward the weight of drugs for sentencing
purposes. It cites Chapman, which upheld the inclusion of
blotter paper in the weight of LSD for sentencing under
§ 841(b)(1)(B). 500 U.S. at 455.
Chapman does not really advance the government’s
case. After it was decided, Amendment 484 for the first time
made usability essential for calculating the weight of a drug
quantity for § 2D1.1 sentencing purposes. True, en route to
its conclusion under the prior law, Chapman made a rhetorical
point about ingestion: “Like cutting agents used with other
drugs that are ingested, the blotter paper . . . carrying LSD can
be and often is ingested with the drug.” 500 U.S. at 462. But
ingestibility was not the crux of the decision, which in any
event never mentioned the ingestibility of mannitol as a
cutting agent for cocaine base.
In fact, no decided case reaches the issue. While
Byfield overstated the relevance of some cited authorities, the
6
government’s effort to make affirmative use of appellate
decisions is equally amiss. For instance, while United States
v. Jackson, 115 F.3d 843 (11th Cir. 1997), referred to sugar as
a cutting agent that would be consumed, id. at 845, the drug in
question was cocaine, not cocaine base. Byfield’s assertion,
which the government at oral argument conceded was
perfectly plausible, is thus uncontradicted by any pertinent
holding or responsive evidence. And while Byfield did not
qualify as an expert, he was, as counsel observed, convicted
of knowingly possessing cocaine base with intent to
distribute, a conviction at least suggesting some familiarity
with drug buyers’ interests. Against the vacuum presented by
the government, this is enough of a smidgeon to put the
matter “reasonably in dispute.”
The government seeks to undercut Byfield’s request
for a hearing on the ground that he failed to ask explicitly for
a court-appointed expert or invoke 18 U.S.C. § 3006A. We
are at a loss to understand how that differs materially from
what Byfield did. To be sure, Byfield cited neither § 6A1.3
nor § 3006A. He instead simply requested a “re-sentencing
hearing” at which he and the government could “produce
expert testimony.” But statutory and Guidelines section
numbers are not talismans, and a pro se prisoner’s failure to
recite them doesn’t obviate the need for a hearing when the
record meets the threshold condition. See, e.g.,
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C.
Cir. 2002) (court has an “obligation to construe pro se filings
liberally”).
Given that Byfield’s proposition therefore remains
unrefuted, we hold that the district court abused its discretion
in denying Byfield a § 6A1.3 hearing. Compare United States
v. Small, 74 F.3d 1276, 1287 (D.C. Cir. 1996) (upholding
refusal to postpone sentencing to reweigh implicated drugs
7
because “[t]he district court made a reasoned factual
determination that the government had proved the weight of
the drugs”).
The hearing may in fact prove quite simple. The
government’s appellate brief points to scholarly authorities
for the proposition that cocaine base vaporizes when heated to
about the temperature of boiling water (100 degrees Celsius),
whereas mannitol melts at about 166-68 degrees Celsius. But
chemists we are not, and the government doesn’t claim that
these points meet the standards for judicial notice. The cited
items do suggest, however, that on remand, once Byfield is
given an opportunity to present expert evidence in support of
his contention, expert affidavits from the government may be
enough to refute his claims. The Commentary to § 6A1.3
says that the district court is to “determine the appropriate
procedure in light of the nature of the dispute,” and observes
that “lengthy sentencing hearings seldom should be
necessary,” and that “affidavits of witnesses may be adequate
under many circumstances.” See U.S.S.G. § 6A1.3
Commentary.
Accordingly, we reverse and remand with instructions
that the district court should allow the parties to present
evidence regarding whether Byfield is entitled to a reduced
sentence under Amendment 484 to U.S.S.G. § 2D1.1.
So ordered.