87 F.3d 1152 (10th Cir. 1996), 94-4052, United States v. Richards

Docket Nº:94-4052.
Citation:87 F.3d 1152
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Larry D. RICHARDS, Defendant-Appellee.
Case Date:June 28, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1152

87 F.3d 1152 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellant,

v.

Larry D. RICHARDS, Defendant-Appellee.

No. 94-4052.

United States Court of Appeals, Tenth Circuit

June 28, 1996

Wayne T. Dance, Assistant United States Attorney, Scott M. Matheson, Jr., United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellant.

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

Before SEYMOUR, Chief Judge, and PORFILIO, ANDERSON, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges. [*]

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ON REHEARING EN BANC

BALDOCK, Circuit Judge.

This case requires us to determine whether a combination of liquid by-products and methamphetamine constitute a "mixture or substance containing a detectable amount of methamphetamine" for purposes of sentencing under 21 U.S.C. § 841(b). Applied to the facts, we must decide whether thirty-two kilograms of liquid by-products containing methamphetamine, or twenty-eight grams of pure methamphetamine alone, should be used to calculate Defendant Larry D. Richards' sentence under § 841(b). We conclude that the plain language of § 841(b), and Supreme Court precedent, require us to use the entire thirty-two kilogram weight of the methamphetamine and liquid by-product mixture to calculate Defendant's sentence. We accordingly reverse and remand.

I.

Methamphetamine is commonly synthesized via a process that yields methamphetamine in a liquid solution. Operators of clandestine methamphetamine laboratories attempt to extract the pure methamphetamine from the liquid mixture. Defendant possessed thirty-two kilograms of a liquid mixture containing twenty-eight grams of pure methamphetamine. Defendant sought to extract the pure methamphetamine from the liquid mixture. Before he was able to do so, law enforcement officials seized the liquid mixture and arrested Defendant.

Defendant pleaded guilty to possession of 1000 grams or more of a liquid mixture containing a detectable amount of methamphetamine, with intent to manufacture methamphetamine in powder form, 21 U.S.C. § 841(a), (b)(1)(A)(viii). The presentence report determined that the thirty-two kilogram liquid mixture contained twenty-eight grams of pure methamphetamine. Applying U.S.S.G. § 2D1.1, the court sentenced Defendant based upon the entire thirty-two kilogram liquid mixture to 188 months imprisonment. See U.S.S.G. § 2D1.1 application note * ("In the case of a mixture or substance containing ... methamphetamine, use the offense level determined by the entire weight of the mixture or substance or the offense level determined by the weight of the pure ... methamphetamine, whichever is greater.").

Defendant did not appeal his sentence. Instead, he filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The district court denied the motion. Defendant filed a second motion under § 2255. In his second motion, Defendant argued that the district court misapplied the sentencing guidelines by including both the weight of liquid by-products and extractable methamphetamine in determining his base offense level. The district court granted this motion.

On appeal, we concluded that Defendant's second petition constituted an abuse of the writ and reversed. United States v. Richards, 5 F.3d 1369 (10th Cir.1993). We noted, however, that the United States Sentencing Commission had proposed an amendment to § 2D1.1, which if adopted and applied retroactively, might afford Defendant relief under 18 U.S.C. § 3582(c)(2). 1

Effective November 1, 1993, the Sentencing Commission amended the commentary following U.S.S.G. § 2D1.1 and defined "mixture or substance" for purposes of the Sentencing Guidelines as follows:

"Mixture or substance" as used in this guideline has the same meaning as in 21 U.S.C. § 841, except as expressly provided. Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used. Examples of such materials include ... waste water from an illicit laboratory used to manufacture a controlled substance.

U.S.S.G. § 2D1.1 application note 1. The Sentencing Commission expressly made this amendment retroactive. U.S.S.G. § 1B1.10(c).

Thereafter, Defendant filed the instant motion for modification of sentence under

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§ 3582(c)(2). Defendant argued that the amended commentary to § 2D1.1 mandated that the court exclude the liquid by-products and recalculate his sentence based only upon the twenty-eight grams of pure methamphetamine. Defendant maintained that the district court must accordingly reduce his 188 month sentence to 60 months. 21 U.S.C. § 841(b)(1)(B)(viii) (providing a mandatory minimum five-year term of imprisonment for possession with intent to manufacture "10 grams or more of methamphetamine.").

The government conceded that the amended commentary applied to Defendant and that the court could reduce Defendant's sentence. The government argued, however, that Defendant was still subject to a mandatory minimum ten-year term of imprisonment under 21 U.S.C. § 841(b)(1)(A)(viii). The government maintained that the amended commentary to § 2D1.1 did not alter § 841's definition of "mixture or substance." Applying the statutory definition the government asserted that Defendant possessed thirty-two kilograms of a "mixture or substance containing a detectable amount of methamphetamine," and therefore remained subject to a mandatory minimum ten-year term of imprisonment. 21 U.S.C. § 841(b)(1)(A)(viii). The government therefore maintained that the court could not reduce Defendant's sentence below ten years, or 120 months.

The district court agreed with Defendant. The court reasoned that § 2D1.1 and § 841 should "be interpreted harmoniously where reasonably possible," because, to give the statute a different meaning than the guideline would produce illogical and inconsistent results. Thus, the court interpreted § 841's terms "mixture or substance" consistent with the amended guidelines' definition and sentenced Defendant based on twenty-eight grams of methamphetamine, instead of thirty-two kilograms of a mixture containing methamphetamine. The court granted Defendant's motion to modify sentence, and resentenced him to 60 months imprisonment. A divided panel of this court affirmed, holding that the Supreme Court's "recognition of Congress' 'market-oriented' approach dictates that we not treat unusable drug mixtures as if they were usable"; and that, under a "congruent approach," § 841 should be interpreted consistent with the construction provided by the Sentencing Commission. United States v. Richards, 67 F.3d 1531, 1536 (10th Cir.1995). We granted en banc review to determine whether the Sentencing Commission's amended construction of "mixture or substance" authoritatively defines the terms "mixture or substance" in § 841, or whether the statutory terms retain their plain meaning as construed by the Supreme Court in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).

II.

The government maintains the district court erred by interpreting § 841's terms "mixture or substance" consistent with the Sentencing Commission's definition set forth in the amended commentary to § 2D1.1. The government contends that the Supreme Court defined § 841's terms "mixture or substance" in Chapman in accord with the plain, dictionary meanings of the words. The government argues that the liquid solution containing methamphetamine constitutes a "mixture" under the plain meaning of the word. Thus, the government asserts the district court erred in reducing Defendant's sentence because Defendant possessed thirty-two kilograms of a "mixture or substance containing a detectable amount of methamphetamine," within the meaning of § 841(b)(1)(A)(viii). Accordingly, the government asserts Defendant remains subject to a ten-year mandatory minimum sentence.

Defendant responds that the district court correctly construed § 841's terms "mixture or substance" in accord with the Sentencing Commission's amended guidelines definition. Defendant maintains that the unusable and unmarketable portion of the drug mixtures should be excluded from the calculation of his statutory sentence. Defendant relies on the rulings of other circuits that have embraced this "marketable" approach. 2 Applied to the

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facts, Defendant maintains that he should be sentenced for the twenty-eight grams of methamphetamine, not the unmarketable thirty-two kilograms of liquid.

A.

The parties' arguments require us to interpret the terms "mixture or substance" in 21 U.S.C. § 841(b). Congress did not define "mixture or substance" in § 841. We need not perform our own interpretive analysis, however. The Supreme Court has authoritatively construed the terms in Chapman.

In Chapman, the Court confronted the question whether the weight of blotter paper containing LSD or the weight of pure LSD alone should be used to determine a defendant's eligibility for a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B)(v). Under § 841(b)(1)(B)(v), a defendant is subject to a mandatory minimum five-year term of imprisonment if he, inter alia, distributes "1 gram or more of a mixture or substance containing a detectable amount of" LSD. The Supreme Court had to decide whether the blotter paper and LSD distributed by the defendants constituted a "mixture or substance" for purposes of the statute.

The Court noted that, in addition to LSD, § 841 uses the statutory phrase "mixture or substance" in connection with a number of controlled substances, including methamphetamine, but does not define it. Using time-honored principles of statutory construction, the Court...

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