U.S. v. Richards, 94-4052

• Decision Date: 11 October 1995
• Docket Number: No. 94-4052,94-4052
• Citation: 67 F.3d 1531
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Larry D. RICHARDS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1531

67 F.3d 1531

UNITED STATES of America, Plaintiff-Appellant, v. Larry D. RICHARDS, Defendant-Appellee.

No. 94-4052.

United States Court of Appeals Tenth Circuit.

Oct. 11, 1995.

Wayne T. Dance, Assistant United States Attorney (Scott M. Matheson, Jr., United States Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff-Appellant.

Loni F. DeLand, McRae & DeLand, Salt Lake City, Utah, for Defendant-Appellee.

Before SEYMOUR, Chief Judge, BALDOCK, Circuit Judge, and VAZQUEZ, District Judge. ^*

SEYMOUR, Chief Judge.

In the present action, Mr. Richards filed a motion to modify his sentence pursuant to 18 U.S.C. Sec. 3582(c)(2). In so doing, he relies upon amended commentary to the sentencing guidelines which excludes waste water from the definition of "mixture or substance" for purposes of weighing methamphetamine. The district court granted the motion and reduced Mr. Richards' sentence from 188 months to 60 months. On appeal, the government concedes that the commentary changed the applicable guideline range but asserts that the commentary cannot alter the definition of "mixture or substance" for purposes of the statutory minimum sentence. The government thus contends that Mr. Richards' sentence remains subject to a statutory mandatory minimum of 120 months. We affirm.

I.

In 1989, Mr. Richards pled guilty to possession with intent to manufacture methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1). The statutory penalty provision and the relevant sentencing guideline provide two possible methods for measuring methamphetamine for sentencing purposes: the weight of the pure drug or the weight of the "mixture or substance" containing a detectable amount of the drug. See 21 U.S.C. Sec. 841(b)(1); ¹ U.S.S.G. Sec. 2D1.1. ² Mr. Richards possessed 28 grams of pure methamphetamine, which was combined with waste water to form a mixture weighing 32 kilograms. Rec., vol. IV at 14. Consequently, the court sentenced him to 188 months of imprisonment and five years of supervised release. ³

Mr. Richards challenged that sentence on three separate occasions. First, he filed a motion to vacate the sentence pursuant to 28 U.S.C. Sec. 2255, which the district court denied. Then he filed a second motion under section 2255. The district court granted this motion, but we reversed on appeal, holding that the second petition constituted an abuse of the writ. United States v. Richards, 5 F.3d 1369 (10th Cir.1993). His latest avenue of attack is 18 U.S.C. Sec. 3582(c)(2), which allows a district court to modify the prison term of a defendant "who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission...."

In the current motion, Mr. Richards alleged and the district court agreed that the amended commentary to section 2D1.1 of the sentencing guidelines mandates that his sentence be reduced from 188 months to 60 months. The commentary now provides that "[m]ixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used." U.S.S.G. Sec. 2D1.1, comment. n. 1. The amended commentary became effective on November 1, 1993, and the Sentencing Commission expressly made it retroactive. U.S.S.G. Sec. 1B1.10(c). The commentary lists "waste water from an illicit laboratory" as an example of a substance that cannot comprise a "mixture or substance." U.S.S.G. Sec. 2D1.1, comment. n. 1.

The government concedes that this amended commentary is applicable to Mr. Richards. It does not contest his assertion that, under the guidelines, his sentence must be based on the amount of pure methamphetamine and that his sentencing level must therefore be reduced from a level 38 to an 18. The government asserts, however, that the Sentencing Commission's decision to exclude waste water from "mixture or substance" does not alter the definition of that phrase in the statutory context. Claiming that we have construed section 841(b) to include waste water as part of a "mixture or substance," the government maintains that Mr. Richards remains subject to a statutory mandatory minimum term of imprisonment of ten years, which trumps the guideline sentence.

We review de novo the district court's interpretation of statutory provisions and the sentencing guidelines. See United States v. Agbai, 930 F.2d 1447, 1448 (10th Cir.1991).

II.

The government bases its argument on the notion that amended commentary to the sentencing guidelines cannot change the established judicial interpretation of a statute. Although we agree with this assertion, it is irrelevant to our inquiry because we disagree that we have definitively construed the statute itself to include waste water in its definition of "mixture or substance." The amended commentary may therefore instruct our interpretation of the statute.

The government asserts that the Sentencing Commission does not have authority to supersede our precedent interpreting "mixture or substance" for purposes of section 841(b). See United States v. Neal, 46 F.3d 1405, 1409 (7th Cir.1995) (en banc), cert. granted, --- U.S. ----, 115 S.Ct. 2576, 132 L.Ed.2d 826 (1995) ("The Commission is without authority to override [Supreme Court precedent]."); United States v. Palacio, 4 F.3d 150, 154 (2d Cir.1993) ("[O]nce we have construed [a] statute, we will not reinterpret it in the absence of new guidance from Congress."), cert. denied, --- U.S. ----, 114 S.Ct. 1194, 127 L.Ed.2d 543 (1994). This argument rests on the assumption that we have precedent authoritatively construing section 841(b).

In Neal, the Seventh Circuit held that an amended sentencing guideline prescribing a presumptive per dose weight of LSD ⁴ did not alter the interpretation of section 841(b) established in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). Neal, 46 F.3d at 1408-09. Chapman construed section 841(b) to include the weight of blotter paper containing "hits" of pure LSD in the measurement of a "mixture or substance." 500 U.S. at 461, 111 S.Ct. at 1925. Citing Chapman, the Sentencing Commission itself recognized that its new approach to measuring LSD for guideline purposes "does not override the applicability of 'mixture or substance' for the purpose of applying any mandatory minimum sentence." U.S.S.G. Sec. 2D1.1 backg'd; see also United States v. Boot, 25 F.3d 52, 55 (1st Cir.1994) ("[W]e conclude that Congress simply acquiesced in the restrictive reach of Amendment 488 duly noted by the Commission in application note 18.").

Likewise, the Second Circuit in Palacio held that the sentencing guidelines' amended definition of "cocaine base" did not alter its conflicting statutory interpretation of the same term established in United States v. Jackson, 968 F.2d 158 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 664, 121 L.Ed.2d 589 (1992). See Palacio, 4 F.3d at 154-55. Recognizing that the amended commentary would be authoritative in determining base offense levels under the guidelines, the court noted that its own interpretation of the statute in Jackson was binding for purposes of determining the mandatory minimum where "our initial construction of [the] statute [was] solely the result of an independent judicial interpretation of a statutory term." Id. at 154.

We agree that amended commentary to the sentencing guidelines cannot alter any prior, independent construction of section 841(b) we may have made. However, we have never specifically interpreted the statute apart from the guideline to require the inclusion of waste water in its definition of "mixture or substance."

The government concedes that we have interpreted "mixture or substance" only in the context of section 2D1.1 of the sentencing guidelines. Aplt.Br. at 16; see United States v. Killion, 7 F.3d 927 (10th Cir.1993) (weight of waste by-products may be used to calculate base offense level under section 2D1.1), cert. denied, --- U.S. ----, 114 S.Ct. 1106, 127 L.Ed.2d 418 (1994); United States v. Dorrough, 927 F.2d 498, 502 (10th Cir.1991) (same); United States v. Callihan, 915 F.2d 1462 (10th Cir.1990) (same). It argues, however, that because " '[m]ixture or substance' as used in [section 2D1.1] has the same meaning as in 21 U.S.C. Sec. 841," U.S.S.G. Sec. 2D1.1 comment. n. 1, we have implicitly settled the statutory issue as well. We are not persuaded.

In Callihan and Dorrough, we construed "mixture or substance" in section 2D1.1 of the guidelines without any reference or citation to the statute or its construction, merely relying on the Sentencing Commission's admonition that "if any mixture or compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be considered in measuring the quantity." Callihan, 915 F.2d at 1463 (quoting U.S.S.G. Sec. 2D1.1, table n. * (Oct. 1987)); see also Dorrough, 927 F.2d at 502 (relying on Callihan).

We later were faced with determining

whether the United States Supreme Court decision, Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), supersedes the Tenth Circuit's earlier position that the weight of waste products that are the by-product of a drug manufacturing process but that contain a detectable amount of a controlled substance may be used in calculating a defendant's base offense level under Sec. 2D1.1 of the guidelines. The district court, citing United States v. Dorrough, 927 F.2d 498, 502 (10th Cir.1991), and United States v. Callihan, 915 F.2d 1462, 1463 (10th Cir.1990), ruled that the weight of unusable waste by-products containing a detectable amount of P-2-P are to be included for sentencing purposes under the Guidelines. Killion, 788 F.Supp. at 1167. Killion, however, maintains that the district court erred in including the weight of waste by-products in calculating his sentence because Dorrough and Callihan were decided prior to and were...