Richards v. US

• Citation: 796 F. Supp. 1456
• Decision Date: 05 June 1992
• Docket Number: No. 91-C-1304A.,91-C-1304A.
• Parties: Larry D. RICHARDS, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Utah

796 F. Supp. 1456

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

No. 91-C-1304A.

United States District Court, D. Utah, C.D.

June 5, 1992.

Loni F. DeLand, Salt Lake City, Utah, for plaintiff.

Wayne T. Dance, Asst. U.S. Atty., Salt Lake City, Utah, for defendant.

ORDER GRANTING MOTION UNDER 28 U.S.C. § 2255

ALDON J. ANDERSON, Senior District Judge.

Presently before the court is plaintiff's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On August 10, 1990, based on his plea of guilty to one count of possession with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1),¹ plaintiff was sentenced to the custody of the Bureau of Prisons for one hundred eighty-eight (188) months. Plaintiff currently is incarcerated at El Reno, Oklahoma.

The material facts underlying plaintiff's arrest and conviction are as follows. At the time of his arrest, plaintiff was in possession of approximately 8.5 gallons of a liquid mixture in which a detectable amount of methamphetamine was suspended. Statement of Defendant in Advance of Plea of Guilty, Case No. 89-CR-168A, Doc. No. 67 at 5. Plaintiff stipulated that the weight of the liquid mixture was thirty-two kilograms. Id. The court sentenced plaintiff according to 21 U.S.C. § 841(b)(1)(A)(viii) and U.S.S.G. § 2D1.1. Section 841(b)(1)(A)(viii) provides that a person whose violation of section 841(a) involves "100 grams or more of methamphetamine ... or 1 kilogram or more of a mixture or substance containing a detectable amount of methamphetamine" shall be subject to a minimum mandatory sentence of ten years, a fine of up to $4,000,000, and supervised release of at least five years. Section 2D1.1 of the Sentencing Guidelines requires that a person convicted of possessing with intent to manufacture a controlled substance in amounts of "at least 30 KG but less than 100 KG of Methamphetamine, or at least 3 KG but less than 10 KG of Pure Methamphetamine" shall be subject to a base offense level of 38. U.S.S.G. § 2D1.1(c)(3).²

Of crucial import to this case is the footnote to section 2D1.1(c) of the sentencing guidelines which provides, in relevant part, that "unless otherwise specified, the weight of a controlled substance set forth in the table 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. * (emphasis added). Despite the agreement of the government and plaintiff that the mixture here involved was not pure methamphetamine base and, in fact, was diluted by other chemicals, the court felt compelled by the above-referenced footnote to sentence plaintiff as if the entire liquid mixture were methamphetamine base.³ Accordingly, the court applied the base offense level appropriate to the entire weight of the mixture in arriving at its sentence of 188 months.

On December 26, 1991, plaintiff filed the present motion to vacate, set aside, or correct his sentence. The basis of plaintiff's motion is that, in sentencing him, the court erroneously applied the sentencing guidelines. Specifically, plaintiff alleges that the court erred in its calculation of his base offense level because it used the total weight of the liquid mixture containing methamphetamine base. Plaintiff alleges that the 8.5 gallons of liquid mixture in his possession contained only "traceable" amounts of methamphetamine, that the mixture, as of the time of the seizure, was not in marketable, digestible, ingestible, or otherwise usable form, and that the mixture was a toxic by-product left over from the methamphetamine manufacturing process and of no market worth. Plaintiff argues that the court should have used an "extraction" method whereby the actual amount of marketable methamphetamine should have been removed from the mixture and that amount should have been used as the basis for calculating his base offense level.

The government responds to Plaintiff's motion with four arguments: (1) that plaintiff waived his argument because he failed to pursue it on direct appeal; (2) that plaintiff waived his argument by not including it in a previous post-sentence motion; (3) that plaintiff waived the argument by failing to lodge an objection with the court at the time of sentencing; and (4) that the court properly sentenced plaintiff under the applicable legal rules.⁴ Because the court believes that its application of the sentencing guidelines and the relevant legal rules was erroneous in light of subsequent cases construing those rules, it grants plaintiff's motion.

The government relies on United States v. Dorrough, 927 F.2d 498 (10th Cir.1991), and United States v. Callihan, 915 F.2d 1462 (10th Cir.1990), for the proposition that, when calculating the base offense level for a crime involving possession of a mixture in which a detectable amount of a controlled substance is present, the total weight of the mixture is the proper basis for applying the sentencing guidelines. Both Dorrough and Callihan stem from the same factual circumstances. In Callihan, the defendant entered a plea of guilty to conspiring to manufacture, possess with intent to distribute, and distribute amphetamine. Callihan, 915 F.2d at 1463. At the time of the defendant's arrest, 94 kilograms of a chemical mixture containing phenalytic acid, sodium acetate, acetic anhydride, and phenyl-2-propanone ("P-2-P") were seized. Id. When heated, the chemical mixture seized would have produced more P-2-P, a controlled substance and a precursor of amphetamine. However, at the time of the seizure, only 2.95 kilograms of P-2-P were actually present in the mixture. Id. The court literally construed the footnote to section 2D1.1 and held that the district court did not err in basing the defendant's sentence on the weight of the entire 94 kilogram mixture rather than on the 2.95 kilograms of P-2-P actually present. Id. The court explained that "the footnote meant what it said: that the scale weight of a mixture or compound containing a controlled substance is the entire amount of the mixture or compound." Id. (citations omitted).

In Dorrough, the defendant was convicted of attempting to manufacture P-2-P and amphetamine and for possession of P-2-P with intent to manufacture amphetamine. Dorrough, 927 F.2d at 499. The base offense level for defendant's sentence was based on the same 94 kilogram mixture as was involved in Callihan. Id. at 502. Rather than arguing that the base offense level should be based on the actual amount of P-2-P present, the defendant argued that the base offense level should be based on the amount of P-2-P that could have been produced from the seized chemicals. Id. The defendant specifically argued that the amount of waste material in the mixture should not have been counted for purposes of sentencing. Id. The court rejected the defendant's argument and affirmed the sentence relying on both the footnote to section 2D1.1 of the guidelines and Callihan. Id.

It thus appears that plaintiff's argument that his sentencing should not have been based on the entire amount of the seized mixture is without legal support in this circuit. However, after both Callihan and Dorrough were rendered, the United States Supreme Court decided Chapman v. United States, ___ U.S. ___, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). There the Court held that, under 21 U.S.C. § 841(b)(1)(B)(v),⁵ the weight of blotter paper on which lysergic acid diethylamide ("LSD") was applied and which acted as a carrier medium is to be included in the weight of the controlled substance for purposes of sentencing. Id. 111 S.Ct. at 1925-26. Section 841(b)(1)(B)(v) refers to "1 gram or more of a mixture or substance containing a detectable amount of LSD." The Court held that the combination of blotter paper and LSD formed a mixture or substance and therefore the entire weight of the mixture should be considered under section 841(b). Id. at 1926. The Court noted that

the LSD is diffused among the fibers of the paper. Like heroin or cocaine mixed with cutting agents, the LSD cannot be distinguished from the blotter paper, nor easily separated from it. Like cutting agents used with other drugs that are ingested, the blotter paper, gel, or sugar cube carrying LSD can be and often is ingested with the drug.

Id.

At first blush, Chapman appears to support the government's reliance on Callihan and Dorrough. In Chapman, however, the Court explained the legislative intent underlying 21 U.S.C. § 841:

The current penalties for LSD distribution originated in the Anti-Drug Abuse Act of 1986, Pub.L. 99-570, 100 Stat. 3207 (1986). Congress adopted a "market-oriented" approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence. H.R.Rep. No. 99-845, pt. 1, pp. 11-12, 17 (1986). To implement that principle, Congress set mandatory minimum sentences corresponding to the weight of a "mixture or substance containing a detectable amount of" the various controlled substances, including LSD. 21 U.S.C. §§ 841(b)(1)(A)(i)-(viii) and (B)(i)-(viii). It intended the penalties for drug trafficking to be graduated according to the weight of the drugs in whatever form they were found — cut or uncut, pure or impure, ready for wholesale or ready for distribution at the retail level. Congress did not want to punish retail traffickers less severely, even though they deal in smaller quantities of the pure drug, because such traffickers keep the street markets going. H.R.Rep. No. 99-845, supra, at pt. 1, p. 12.

Id. at 1925 (emphasis added).

Since the Supreme Court decided Chapman, the Sixth, Eleventh and Second Circuits have seized upon the Court's marketbased approach in resolving issues under section 2D1.1 of the sentencing guidelines. In United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991), the Eleventh Circuit held...