U.S. v. Lowden, 90-1605

• Decision Date: 08 January 1992
• Docket Number: No. 90-1605,90-1605
• Citation: 955 F.2d 128
• Parties: UNITED STATES of America, Appellee, v. Aaron S. LOWDEN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 128

955 F.2d 128

UNITED STATES of America, Appellee, v. Aaron S. LOWDEN, Defendant, Appellant.

No. 90-1605.

United States Court of Appeals First Circuit.

Heard Jan. 8, 1992.

Decided Jan. 29, 1992.

Anthony J. Mavronicolas, New York City, by Appointment of the Court, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and James L. McCarthy, Asst. U.S. Atty., Bangor, Me., were on brief, for U.S.

Before TORRUELLA, Circuit Judge, ALDRICH and LEVIN H. CAMPBELL, Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Defendant Aaron Lowden appeals from the sentence imposed by the district court following his plea of guilty to distribution of LSD, a violation of 21 U.S.C. § 841(a)(1). Lowden had sold to an undercover agent three sheets of blotter paper and a vial of liquid, both of which mediums contained LSD.

At the sentencing hearing, Lowden established that the net weight of the LSD was significantly less than the gross (combined) weight of the paper, liquid and LSD contained therein. With respect to the gross weight, the district court received evidence of three different measurements of the contraband. First, the presentence report, based on a government chemist's September 1989 analysis, stated that the gross weight of the LSD-impregnated blotter paper was 2 grams, and that of the LSD-bearing liquid 5.7 grams, for a total of 7.7 grams. A second analysis, performed for the government in December 1989, found the gross weight of the paper to be 2.0 grams and of the liquid 4.03 grams, for a total of 6.03 grams. The third analysis, performed by a chemist for the defense in May 1990, found the gross weight of the paper to be 1.9 grams and of the liquid 4.1 grams, for a gross total of 6.0 grams.

The district court rejected Lowden's argument that only the net weight of the LSD found in the paper and liquid should be considered in sentencing. And in determining the gross weight, the court found that the gross weight given in the presentence report was correct. The latter conclusion was based on the defense chemist's testimony that some of the liquid and paper could have been consumed during the first government chemist's analysis, and that some of the liquid could have evaporated between the first analysis and the second and third.

The district court accordingly found Lowden to have possessed 7.7 grams of substances containing LSD, which meant that his base offense level was 30. Had the court accepted the reports of either of the other two chemists, the total weight of the substances would have been less than 7 grams, and the offense level 28. Finally, the district court rejected Lowden's argument that it should depart downward because the counting of the carrier medium would lead to the disparate sentences the Guidelines were designed to eliminate. Although agreeing that two defendants with the same amount of LSD could hypothetically receive different sentences depending solely on the weight of the carrier medium with which they mixed the LSD, the district court did not find this possibility to be a basis for departure. The district court sentenced Lowden to 87 months (slightly more than seven years), the lowest sentence for his guideline range. We affirm.

Lowden argues that the standard of proof for determining the weight of the substances is "beyond a reasonable doubt," and that, because there was insufficient evidence to find that they weighed 7.7 grams, his conviction violated due process. Assuming, arguendo, that the argument for a "reasonable doubt" standard was properly preserved for appeal, it is clearly without merit. See United States v. Wright, 873 F.2d 437 (1st Cir.1989) (citing McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)) ("[c]ase law clearly establishes that the government need not prove the facts used for sentencing 'beyond a reasonable doubt.' The Supreme Court has held that the 'preponderance standard satisfies due process' "). Under the preponderance standard, there was more than ample evidence from which the district court could have concluded that the combined weight of the liquid, paper and LSD was 7.7 grams. District court findings of fact in a sentencing hearing may be overturned only if clearly erroneous. United States v. Diaz-Villafane, 874 F.2d 43 (1st Cir.1989). Given the first chemist's analysis measuring the gross weight of 7.7 grams, and the testimony explaining how later analyses might have found a lower gross weight, the district court's finding was not clear error.

Lowden further argues that including the weight of the two carrier mediums for purposes of determining his sentence violated the due process clause of the federal Constitution, because such inclusion could result in the arbitrary imposition of different sentences on defendants dealing in identical amounts of LSD, depending on the carrier medium used. ¹ It does not appear that Lowden raised this constitutional argument below. Although he did claim that the use of gross weights was arbitrary, he did so solely in order to buttress a request that the court depart from the guidelines. Lowden never contended below that the arbitrariness rose to the level of a constitutional violation. That argument is, therefore, waived. See United States v. La Guardia, 902 F.2d 1010 (1st Cir.1990).

Assuming, arguendo, that we...