U.S. v. Daly, 88-5672

• Decision Date: 24 August 1989
• Docket Number: No. 88-5672,88-5672
• Citation: 883 F.2d 313
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian Michael DALY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 313

883 F.2d 313

UNITED STATES of America, Plaintiff-Appellee, v. Brian Michael DALY, Defendant-Appellant.

No. 88-5672.

United States Court of Appeals,

Fourth Circuit.

Argued June 8, 1989.

Decided Aug. 24, 1989.

Fred Warren Bennett, Federal Public Defender, for defendant-appellant.

John Vincent Geise, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., Quincie Hopkins, Law Clerk, on brief), for plaintiff-appellee.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

PHILLIPS, Circuit Judge:

Brian Michael Daly appeals the sentence imposed after he entered a plea of guilty on a single charge of conspiracy to distribute a Schedule I controlled dangerous substance, lysergic acid diethylamide (LSD), in violation of 21 U.S.C. Sec. 846. Finding no merit in the appellant's various assignments of error, we affirm.

I

The pertinent facts are not in dispute. For approximately nine months beginning in October of 1984, the federal Drug Enforcement Agency (DEA) conducted a major "sting operation" targeted against the principals in a large LSD distribution network thought to be operating in the Baltimore City metropolitan area. In July of 1985, the investigation led to the arrest of one Frank Baldwin, an LSD distributor who later agreed to serve as a government informant. Baldwin's cooperation led DEA agents to Sandals H. Morrow, who apparently had supplied Baldwin's distribution network for a number of years. After his arrest, Morrow executed a plea agreement and, like Baldwin, agreed to cooperate in the ongoing investigation.

Morrow ultimately told DEA interviewers that the appellant, Brian Daly, had been supplying large quantities of LSD to Morrow, Baldwin and others for several months. With Morrow's cooperation, the government then arranged a "sting" transaction with Daly. On February 25, 1988, when Daly appeared for a planned "drop," undercover DEA agents arrested him and seized approximately 755 grams of "blotter paper" impregnated with LSD. Tests later revealed that the "uncut" LSD contained in the paper weighed approximately 2.33 grams.

Daly also agreed to plead guilty and cooperate in the DEA investigation. Here, he does not challenge the validity of the conviction subsequently entered on his guilty plea. Instead, he claims that the district court committed several errors in imposing sentence.

Because Daly committed his offense after November 1, 1987, the district court sentenced him pursuant to the Guidelines. See Sentencing Reform Act of 1984, Pub.L. No. 98-473, Sec. 235, 98 Stat.1988, 2031 (1984) (as amended) (savings clause/effective date), reprinted at 18 U.S.C.A. Sec. 3551 (West 1985 & Supp.1989). In turn, the court obtained from the United States Probation Office the presentence report required in all Guidelines cases by 18 U.S.C. Sec. 3552(a). See also Fed.R.Crim.P. 32(c). That report recommended that the court assign to Daly a "base offense level" of 36--that is, the base level corresponding in the Drug Quantity Table accompanying Guidelines Sec. 2D1.1 to any offense involving the possession or distribution of 100 or more grams of LSD. The report also suggested, however, that Daly was entitled to a two-level downward adjustment for "acceptance of responsibility." Guidelines Sec. 3E1.1. This in turn yielded an "adjusted" base offense level of 34 and a "guidelines sentencing range" of 151-188 months, given that the defendant also qualified for assignment to "criminal history category I." See id. Sec. 4A1.1 (computation of criminal history category) and Chapter 5, Part A (Sentencing Table).

At the ensuing sentencing hearing, Daly objected to the presentence report and argued that the Probation Office had misapplied the Drug Quantity Table accompanying Sec. 2D1.1. In his view, probation officers should have determined his "base offense level" under the Table on the assumption that the quantity of drugs involved in the offense was 2.33 grams (the net weight of the LSD contained in the seized blotter paper), rather than 755 grams (the gross weight of the blotter paper and the "uncut" LSD). This would in turn have yielded an adjusted base offense level of 24 and a guidelines sentencing range of 51-63 months, as opposed to the 151-188 month range recommended in the presentence report. ¹

Daly also urged the district court to grant one or more "downward departures" under 18 U.S.C. Sec. 3553(b) and sentence him outside the recommended guideline range. ² Departure was warranted, he argued, because: (1) the seized LSD had a street value of only $12,000; ³ (2) the defendant had significant "family ties and responsibilities"; (3) Daly established that he came from a troubled family and had an "unstable upbringing"; (4) he had cooperated with the government after his arrest; and (5) nonparoleable sentencing under the Guidelines would result in punishment "grossly disproportionate" to the non-Guidelines sentences the district court had imposed for Baldwin (probation) and Morrow (six years imprisonment, with possibility of parole after 20 months), each of whom had committed "similar" offenses.

The district court refused to adjust Daly's base offense level under the Drug Quantity Table to account for the large disparity between the weight of the blotter paper and the LSD impregnated therein. The court granted a substantial downward departure (from the 151-month guideline range minimum to a final sentence of 84 months), however, both to reflect the defendant's cooperation with government agents and to ameliorate the manifest disparity between the recommended guideline range and the sentences of Daly's "co-conspirators."

This appeal followed.

II

We turn first to the most difficult of the various questions presented in this case--namely, whether the Drug Quantity Table accompanying Sec. 2D1.1 of the Guidelines may be applied so as to reflect the gross weight of blotter paper or other "carriers" of "uncut" LSD.

Shortly before the sentencing guidelines went into effect, Congress enacted the Anti-Drug Abuse Act of 1986, Pub.L. 99-570, 100 Stat. 3207 (1986), which enhanced the penalties imposed by preexisting statutes for most federal drug offenses. The Act accomplished this purpose by establishing a new "benchmark" for the measurement of drug quantities, hence the assessment of minimum penalties. Pursuant to various amendments to 21 U.S.C. Sec. 841(b), for example, penalties for the possession or distribution of most drugs, including LSD, were thenceforth to be assessed not (as under prior law) according to the involved quantity of the drug itself, but instead according to the involved quantity of any "mixture or substance containing a detectable amount" of the drug.

In promulgating the Guidelines, the Sentencing Commission adopted a similar approach. For the purpose of determining base offense levels under Sec. 2D1.1's Drug Quantity Table, and "[c]onsistent with the provisions of the Anti-Drug Abuse Act, 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." Guidelines Sec. 2D1.1, at 2.39 n. * (emphasis supplied).

Distributors normally "cut" LSD by impregnating the pure, liquid drug in sugar cubes or blotter paper. Users then take the drug by ingesting the sugar or paper. The dispositive question in this case, therefore, is whether blotter paper impregnated with LSD constitutes a "mixture or substance containing a detectable amount" of the drug. As the Sentencing Commission itself has apparently recognized, however, this facially straightforward question admits of no simple answers. The reason, as the appellant here knows all too well, is that the use of "mixture or substance" quantities as the benchmark for determining base offense levels under the Guidelines sometimes produces striking disparities in sentencing--at least where the drug involved is LSD.

[I]ncluding carrier weight as part of the LSD mixture may significantly affect the applicable sentence under the guidelines ..., depending on the nature of the carrier. For example, a sugar cube weighs approximately 2,270 mg., a piece of blotter paper the size used to hold one dose weighs about 14 mg., and a dose of [uncut] LSD weighs about .05 mg. Therefore, if the carrier was weighed as part of the mixture, a person selling 100 doses of LSD would have an offense level of 36, or 26, or 12, depending on whether the LSD was impregnated on sugar cubes, blotter paper, or was in liquid form.

Letter from Commission Chairman William W. Wilkins, Jr., to Senator Joseph R. Biden, Jr., dated April 26, 1989, at 2 [hereinafter "Biden Letter"]. ⁴ Of course, herein lies the anomaly about which Daly now complains. Where LSD is involved, sentences are liable to be widely disparate--again, depending on the substance in which the drug is found.

Unfortunately, the Sentencing Commission has taken no action to address the perceived "carrier medium" problem. Indeed, the Commission recently suggested that, because "[w]ith respect to LSD ... it is unclear whether Congress intended the carrier to be considered as a packaging material, or since it is commonly consumed along with the illicit drug, as a dilutant ingredient in the drug mixture," new legislation resolving the matter might be required. Id. In the interim, the expectation apparently is that courts remain faithful to the "plain language" of the statute and the Guidelines--notwithstanding that, as will appear, those courts have in turn been forced to ignore the possibility that manifestly aberrational and largely circumstantial disparities in sentencing will result.

So far as we are aware, every court to address the question has held that, for the purpose of determining base offense levels under Sec. 2D1.1's Drug Quantity Table, LSD "carrier mediums" constitute "substance[s] containing a...