United States v. Pope

United States Court of Appeals,

Eleventh Circuit.

No. 94-2029.

UNITED STATES of America, Plaintiff-Appellant,

v.

Michael Stanley POPE, Jr., Defendant-Appellee.

July 26, 1995.

Appeal from the United States District Court for the Middle
District of Florida. (No. 91-280-CR-T-22(A)), Anne C. Conway,
Judge.

Before DUBINA and BLACK, Circuit Judges, and HENDERSON, Senior
Circuit Judge.

PER CURIAM:

The United States appeals from the judgment of the United

States District Court for the Middle District of Florida granting

Michael Stanley Pope, Jr.'s motion to modify his term of

imprisonment. For the reasons stated below, we reverse and remand.

I. BACKGROUND

On January 23, 1992, Pope pleaded guilty pursuant to a written

plea agreement to charges of conspiracy to possess with intent to

distribute (Count One), and possession with intent to distribute

(Count Two), more than ten grams of lysergic acid diethylamide

("LSD"), in violation of 21 U.S.C. §§ 841(a)(1) and 846. According

to the stipulated facts contained in the plea agreement, the

charges involved the sale of 1,200 doses of the drug, which, when

the carrier medium (blotter paper) was counted, weighed 14.4 grams.

Based upon 21 U.S.C. § 841(b)(1)(A)(v) (governing violations

involving "10 grams or more of a mixture or substance containing a

detectable amount of ... (LSD)"), and the Supreme Court's decision
in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114

L.Ed.2d 524 (1991) (for purposes of § 841(b)(1)(A)(v), the term

"mixture or substance" means the entire weight of the carrier

medium), Pope was subject to a minimum, mandatory, ten-year term of

imprisonment.1 At Pope's sentencing, and in accordance with the

plea agreement, the government moved for a downward departure as

permitted by 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.2 Guided by

the government's recommendation with respect to the extent of the

departure warranted, the court sentenced Pope to 78 months in

prison to be followed by 60 months of supervised release.3

Effective November 1, 1993, the United States Sentencing

Commission (Commission) amended the guideline and the explanatory

commentary governing sentences for LSD offenses. The new guideline

directs that, "[i]n the case of LSD on a carrier medium (e.g., a

1
As they do now, at the time of Pope's sentencing on April
30, 1992, the Sentencing Guidelines provided that "[u]nless
otherwise specified, the weight of a controlled substance ...
refers to the entire weight of any mixture or substance
containing a detectable amount of the controlled substance."
U.S.S.G. § 2D1.1(c) n.* (1992). Under the guidelines, Pope's
base offense level was 32. See U.S.S.G. § 2D1.1(a)(3), (c)(6)
(1992). The government recommended and the court adopted a
two-level reduction for acceptance of responsibility, which
resulted in an adjusted offense level of 30. With a criminal
history category of I, Pope was subject to a guidelines range of
97 to 121 months' imprisonment. However, because of the
statutorily mandated minimum of ten years, Pope's guidelines
range became 120 to 121 months. See U.S.S.G. § 5G1.1 (1992).
2
Both the statute and the guideline authorize the court,
upon motion of the government, to impose a sentence below the
statutory minimum to reflect a defendant's substantial assistance
in the investigation or prosecution of another person who has
committed an offense.
3
The government advised the court that Pope's assistance
merited another two-level reduction in his offense level,
bringing it down to 28. The guidelines range based on this
offense level was 78 to 97 months.
sheet of blotter paper), do not use the weight of the LSD/carrier

medium. Instead, treat each dose of LSD on the carrier medium as

equal to 0.4 mg of LSD for the purposes of the Drug Quantity

Table." U.S.S.G. § 2D1.1(c) n.* (1993) (Amendment 488).

Calculated under the amended guideline, the weight of the LSD

involved in Pope's offenses was 480 milligrams. On November 10,

1993, Pope petitioned the district court to exercise its

discretion, as permitted by 18 U.S.C. § 3582(c)(2), to reduce his

term of imprisonment to reflect the lower sentencing range

resulting from the amended guideline.4 Pope requested specifically

that the court resentence him predicated on a guidelines offense
5
level of 16, which produced a range of 21 to 27 months. The

district court granted Pope's motion over the government's written

opposition and modified his term of imprisonment to 21 months,

followed by 36 months of supervised release.

II. DISCUSSION

On appeal, the government maintains that the district court

was without authority to modify Pope's sentence on the basis of the

amended guideline because Chapman 's entire weight rule still

4
A defendant's sentence may be reduced under § 3582(c)(2)
when the guidelines range has subsequently been lowered by the
Commission and mitigation is consistent with the applicable
policy statements. The policy statement governing Amendment 488
provides for its retroactive application. See U.S.S.G. §
1B1.10(a), (d) (1993).
5
The offense level for an LSD offense involving 480
milligrams is 20. U.S.S.G. § 2D1.1(a)(3), (c)(12) (1993). We
presume that Pope's request was grounded upon that base offense
level, reduced further by the four-level reduction he received
earlier for acceptance of responsibility and substantial
assistance to the government. We note that under the statutory
scheme, there is no mandatory, minimum sentence for an LSD
offense involving 480 milligrams. See 21 U.S.C. § 841(b)(1)(C).
governs for purposes of calculating the mandatory, minimum sentence

under 21 U.S.C. § 841(b)(1)(A)(v), and the ten-year statutory

minimum replaced the guidelines range of imprisonment. See

U.S.S.G. § 5G1.1(b) (where the statutorily required minimum

sentence is greater than the maximum of the guidelines range, the

statutory minimum becomes the guidelines sentence).6 Pope urges us

to hold that the amendment comports with Chapman because it assigns

some weight to the mixture or substance containing the LSD.

Our review of the application of the law to sentencing issues

is de novo. United States v. Chavarria-Herrara,15 F.3d 1033, 1036

(11th Cir.1994). Whether Amendment 488 changed the method by which

to calculate the weight of LSD for purposes of the statutory

sentencing scheme, or whether the Chapman interpretation of the

term "mixture or substance" as stated in the statute still

controls, is a topic our circuit has not yet addressed in a

published opinion and one which has divided our sister circuit

courts.7 See United States v. Smith, 39 F.3d 1143, 1146 n. 2 (11th

6
The government also contends that, although the original
downward departure Pope received for substantial assistance was
proper under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, the
modification to his sentence cannot be justified as a further
downward departure guided by the amendment. Pope did not base
his request for modification upon the downward departure
provisions, and it is clear from the record that the district
court did not rely on such reasoning in reducing his term of
imprisonment. We therefore confine our inquiry to the sole issue
considered by the district court, that is, whether Amendment 488
affects the calculation of weight in LSD offenses for purposes of
determining whether a defendant is subject to a mandatory,
minimum sentence under 21 U.S.C. § 841(b)(1).
7
To date, the First, Third, Fifth, Sixth, Seventh and Tenth
Circuit Courts have continued to follow Chapman. See United
States v. Andress, 47 F.3d 839 (6th Cir.1995); United States v.
Hanlin, 48 F.3d 121 (3d Cir.1995); United States v. Neal, 46
F.3d 1405 (7th Cir.) (en banc), cert. granted, 63 U.S.L.W. 3889,
Cir.1994). After we heard oral argument in this case, another

panel of the Eleventh Circuit issued an unpublished, per curiam

opinion, in which the court held that Chapman continues to govern

the determination of a mandatory, minimum sentence prescribed by 21

U.S.C. § 841(b)(1). See United States v. Reigle, 53 F.3d 1284

(11th Cir.1995). Although unpublished opinions are not binding on

another panel of our court, we may consider them as persuasive

authority. See 11th Cir.R. 36-2. In light of Reigle, and the fact

that the majority rule among the circuit courts is that Amendment

488 does not affect Chapman 's applicability to the statutory

analysis, we now follow suit.

Contrary to Pope's contention, the amended guideline cannot be

squared completely with Chapman. Simply stated, in Chapman, the

Court directed that "the entire mixture or substance [containing

the LSD] is to be weighed when calculating the sentence." Chapman,

500 U.S. at 459, 111 S.Ct. at 1924, 114 L.Ed.2d at 534 (emphasis

added). The amendment to the Sentencing Guidelines dictates that

only part of the carrier medium may be counted at the time sentence

is imposed and it assigns a uniform weight to each dosage of the

drug without regard to the identity of the medium.8 Thus, the

--- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---- (U.S. June 19,
1995) (No. 94-9088); United States v. Pardue, 36 F.3d 429 (5th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1969, 131
L.Ed.2d 858 (1995); United States v. Mueller, 27 F.3d 494 (10th
Cir.1994); United States v. Boot, 25 F.3d 52 (1st Cir.1994).
The Eighth and Ninth Circuits have held that the standardized
weight supplied by the amendment should be utilized. See United
States v. Muschik, 49 F.3d 512 (9th Cir.1995); United States v.
Stoneking, 34 F.3d 651 (8th Cir.), vacated and reh'g granted en
banc, (Sept. 16, 1994).
8
The standard weight assigned to the carrier medium by the
amendment is 0.35 milligram, which is the difference between 0.4
amendment cannot be reconciled with Chapman in that Chapman

requires that the entire, actual weight of the carrier medium,

whatever its composition, be taken into account.

Central to the question before us is the issue of whether the

Commission may, by amending the guidelines, change the manner in

which a court or Congress has directed the calculation of a

statutorily required sentence. At oral argument the government

maintained that the Commission has no such power. However, in

United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir.1994), a panel

of this court rejected a similar argument in the context of the

statutory and guidelines formulas governing penalties for cocaine

offenses.

In Munoz-Realpe, the defendant was convicted of importing

cocaine, in violation of 21 U.S.C. § 952(a). The question on

appeal was whether the substance the defendant imported, a liquid

that tested positive for cocaine base, should be treated as cocaine

base or cocaine hydrochloride for purposes of sentencing. In an

earlier case, United States v. Rodriguez, 980 F.2d 1375 (11th

Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 3003, 125 L.Ed.2d

695 (1993), the court held that the term "cocaine base" as employed

in 21 U.S.C. § 960(b) (providing mandatory, minimum sentences for

importing various drugs, depending upon weight), as well as

U.S.S.G. § 2D1.1 (setting offense levels for drug crimes),

encompassed all forms of cocaine base and not just cocaine base

which had been processed into "crack." Id. at 1378. After

milligram and 0.05 milligram, the typical weight per dose of pure
LSD according to Drug Enforcement Administration figures.
U.S.S.G. § 2D1.1, comment. (backg'd.) (1993) (Amendment 488).
Rodriguez was decided, the Commission amended U.S.S.G. § 2D1.1(c)

n.* to include a statement following the drug quantity table which

provided that, " "[c]ocaine base,' for the purposes of this

guideline, means "crack.' "Crack' is the street name for a form of

cocaine base, usually prepared by processing cocaine hydrochloride

and sodium bicarbonate, and usually appearing in a lumpy, rocklike

form." If the statutory penalty governing cocaine base had been

applied to the substance at issue in Munoz-Realpe, the defendant

would have been subject to a mandatory, minimum sentence of ten

years under 21 U.S.C. § 960(b). However, because it was not

"crack," the district court sentenced him according to the more

lenient provisions governing cocaine hydrochloride.

On appeal, the government argued that in spite of the

amendment to U.S.S.G. § 2D1.1(c) n.*, Rodriguez was still binding

precedent on the issue of whether the term "cocaine base," as used

in the mandatory, minimum sentencing provisions of 21 U.S.C. §

960(b), included all forms of cocaine base and not just crack

cocaine. The panel disagreed, explaining:

We believe that the precedential force of our Rodriguez ruling
has been eroded by subsequent Congressional action. When the
Sentencing Commission proposes an amendment to the Guidelines
themselves (as opposed to commentary or other explanatory
matter), the amendment is first submitted to Congress, which
may act to disapprove or change the proposed amendment within
a specified time (at least 180 days). If Congress takes no
action, the amendment becomes effective. By allowing the
amendment to take effect, Congress has given its imprimatur to
the new definition of "cocaine base"; Congress indicated that
it intends the term "cocaine base" to include only crack
cocaine. Because Congress has provided this new definition,
we think it is proper for us to look to the Guidelines in
determining the meaning of "cocaine base" in the mandatory
minimum statute, especially since both provisions seek to
address the same problem. There is no reason for us to assume
that Congress meant for "cocaine base" to have more than one
definition.
Munoz-Realpe, 21 F.3d at 377-78 (citations omitted).

Also, in Stinson v. United States, 508 U.S. ----, 113 S.Ct.

1913, 123 L.Ed.2d 598 (1993), the Supreme Court reiterated that "

"the Guidelines bind judges and courts in the exercise of their

uncontested responsibility to pass sentence in criminal cases.' "

Id. at ----, 113 S.Ct. at 1917, 123 L.Ed.2d at 606 (quoting

Mistretta v. United States, 488 U.S. 361, 391, 109 S.Ct. 647, 665,

102 L.Ed.2d 714, 743 (1989)). The issue in Stinson was whether an

amendment to the commentary accompanying a guideline was equally

binding. A panel of the Eleventh Circuit had previously determined

that the commentary was only persuasive authority. See United

States v. Stinson, 957 F.2d 813, 815 (11th Cir.1992), vacated, 508

U.S. at ----, 113 S.Ct. at 1920, 123 L.Ed.2d at 610. The Supreme

Court held, however, that commentary which interprets or explains

a guideline must be followed by the courts as well, "unless it

violates the Constitution or a federal statute, or is inconsistent

with, or a plainly erroneous reading of, that guideline." Stinson,

508 U.S. at ----, 113 S.Ct. at 1915, 123 L.Ed.2d at 603. Thus, the

Court made it clear that commentary to a guideline which comports

with constitutional and statutory concerns, is also binding unless

it conflicts with the guideline itself, in which case the guideline

controls.

With respect to LSD offenses, both the guideline and the

commentary to the guideline were amended. We have already

discussed the amendment to the guideline at U.S.S.G. § 2D1.1(c)

n.*. The added commentary explaining the amendment states:

Because the weights of LSD carrier media vary widely and
typically far exceed the weight of the controlled substance
 itself, the Commission has determined that basing offense
levels on the entire weight of the LSD and carrier medium
would produce unwarranted disparity among offenses involving
the same quantity of actual LSD (but different carrier
weights), as well as sentences disproportionate to those for
other, more dangerous controlled substances, such as PCP.
Consequently, in cases involving LSD contained in a carrier
medium, the Commission has established a weight per dose of
0.4 milligram for purposes of determining the base offense
level.

The dosage weight of LSD selected exceeds the Drug
Enforcement Administration's standard dosage unit for LSD of
0.05 milligram (i.e., the quantity of actual LSD per dose) in
order to assign some weight to the carrier medium. Because
LSD typically is marketed and consumed orally on a carrier
medium, the inclusion of some weight attributable to the
carrier medium recognizes (A) that offense levels for most
other controlled substances are based upon the weight of the
mixture containing the controlled substance without regard to
purity, and (B) the decision in Chapman v. United States, [500
U.S. 453], 111 S.Ct. 1919 [114 L.Ed.2d 524] (1991) (holding
that the term "mixture or substance" in 21 U.S.C. § 841(b)(1)
includes the carrier medium in which LSD is absorbed). At the
same time, the weight per dose selected is less than the
weight per dose that would equate the offense level for LSD on
a carrier medium with that for the same number of doses of
PCP, a controlled substance that comparative assessments
indicate is more likely to induce violent acts and ancillary
crime than is LSD. (Treating LSD on a carrier medium as
weighing 0.5 milligram per dose would produce offense levels
equivalent to those for PCP.) Thus, the approach decided upon
by the Commission will harmonize offense levels for LSD
offenses with those for other controlled substances and avoid
an undue influence of varied carrier weight on the applicable
offense level. Nonetheless, this approach does not override
the applicability of "mixture or substance" for the purpose of
applying any mandatory minimum sentence (see Chapman; §
5G1.1(b)).

U.S.S.G. § 2D1.1, comment. (backg'd.) (1993) (Amendment 488)

(emphasis added).

Several of the circuit courts (including our own, in Reigle ),

which have held that Amendment 488 does not override the entire

weight definition of "mixture or substance" announced in Chapman,

have focused on the last sentence of the above-quoted commentary to

find that the Commission did not intend for the amendment to alter
the manner in which weight is calculated under the statutory

scheme. See, e.g., United States v. Andress, 47 F.3d 839, 840-41

(6th Cir.1995); United States v. Pardue, 36 F.3d 429, 431 (5th

Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1969, 131 L.Ed.2d

858 (1995). Other courts have held that the amendment did change

the method of weight calculation for purposes of the mandatory,

minimum statute, but in a way which does not conflict with Chapman.

See United States v. Muschik, 49 F.3d 512 (9th Cir.1995); accord

United States v. Stoneking, 34 F.3d 651 (8th Cir.), vacated and

reh'g granted en banc, (Sept. 16, 1994). These courts have

construed the commentary as Pope urges us to do, that is, as

evidencing an intent by the Commission to comply with the statutory

mandate that the "mixture or substance" containing the LSD be

counted at sentencing, as well as Chapman 's holding that a carrier

medium such as blotter paper is a "mixture or substance" for

purposes of the statute. Muschik, 49 F.3d at 515-17; Stoneking,

34 F.3d at 653-54.

Without question, the method by which courts must determine

Sentencing Guidelines ranges of punishment for LSD offenses has

been recast by Amendment 488. Although the meaning of the amended

commentary is debateable, the amended guideline plainly sets forth

a standard, uniform weight for the mixture or substance containing

the LSD, and under Stinson, the guideline is controlling. See

Stinson, 508 U.S. at ----, 113 S.Ct. at 1918, 123 L.Ed.2d at 607

(if the commentary and the guideline it interprets are

inconsistent, the Sentencing Reform Act commands compliance with

the guideline). What is not clear is whether the Commission
intended to construct a new method for measuring LSD offenses under

the guidelines, while leaving intact Chapman 's entire weight

approach for purposes of the statutory analysis.

In view of the last sentence of the commentary and this

court's opinion in Reigle, we feel constrained to hold that the

entire weight rule of Chapman must still be followed for purposes

of determining whether a defendant is subject to the mandatory,

minimum sentence called for in 21 U.S.C. § 841(b)(1). While this

outcome may be difficult to reconcile with the reasoning expressed

in Munoz-Realpe, we feel that the factual differences in the two

cases preponderate in favor of the government's position.

III. CONCLUSION

In accordance with the foregoing reasons, we REVERSE the

modification of Pope's sentence on the basis of Amendment 488 and

REMAND the case to the district court with instructions to

reinstate his previously imposed sentence.