U.S. v. Acosta

• Citation: 963 F.2d 551
• Decision Date: 13 May 1992
• Docket Number: No. 780,D,780
• Parties: , 60 USLW 2768 UNITED STATES of America, Appellee, v. Elmer Arias ACOSTA, Defendant-Appellant. ocket 91-1527.
• Court: U.S. Court of Appeals — Second Circuit

Page 551

963 F.2d 551

113 A.L.R.Fed. 663, 60 USLW 2768

UNITED STATES of America, Appellee, v. Elmer Arias ACOSTA, Defendant-Appellant.

No. 780, Docket 91-1527.

United States Court of Appeals, Second Circuit.

Argued Jan. 16, 1992.

Decided May 13, 1992.

John D. Patten, New York City, for defendant-appellant.

Charles D. Hammerman, Asst. U.S. Atty., E.D.N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Susan Corkery, Asst. U.S. Atty., E.D.N.Y., of counsel), for appellee.

Before VAN GRAAFEILAND, CARDAMONE and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Both Congress and the Sentencing Commission have made clear that, to penalize drug traffickers, their sentences should be based on the entire weight of mixtures containing a detectable amount of a controlled substance. See 21 U.S.C. § 841; U.S.S.G. § 2D1.1(c) note *. Accordingly, the Supreme Court has recently held that, for sentencing purposes, the weight of LSD includes the weight of its carrier medium--in that case, blotter paper. Chapman v. United States, --- U.S. ----, 111 S.Ct. 1919, 1922, 114 L.Ed.2d 524 (1991). Here, defendant's base offense level was calculated based on the weight of both the cocaine and a creme liqueur in which he had dissolved the cocaine before importing it. Because we see a functional difference between carrier mediums and the creme liqueur, we conclude that the weight of the liqueur should not have been calculated in the base offense level. Accordingly, we reverse.

BACKGROUND

The facts of this case, while unusual, are not in dispute. On February 25, 1991, after a brief trip to Medellin, Colombia, Elmer Arias Acosta returned to the United States, arriving at John F. Kennedy International Airport aboard Avianca Airways Flight 020. United States Customs Inspectors searched defendant's luggage and noticed six bottles of creme liqueur. Their suspicions aroused because the caps of the bottles appeared to be glued on, the Inspectors seized the bottles, field tested the contents, and determined that the liqueur contained cocaine. The Customs Inspectors then placed defendant under arrest.

The Drug Enforcement Administration subsequently conducted a laboratory analysis and determined that the liquid and cocaine mixture weighed 4.662 kilograms. The government chemist then distilled the cocaine from the liquid and calculated the weight of just the cocaine to be 2.245 kilograms.

On May 29, 1991, defendant pleaded guilty to one count of importing an unspecified amount of cocaine into the United States, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), & 960(b)(3). Based on the combined weight of the liquid and cocaine mixture (4.662 kilograms), the Probation Department calculated defendant's base offense level at 30. See U.S.S.G. § 2D1.1(c) (Drug Quantity Table). The presentence report stated that both a two-level reduction for acceptance of responsibility and a four-level reduction for "minimal role" were appropriate. Probation thus placed defendant's total offense level at 24, which, when combined with a criminal history category I, resulted in a guideline range of 51-63 months.

At sentencing, defendant objected that the weight of the creme liqueur should not have been included in the weight calculation. He argued that because the cocaine alone weighed 2.245 kilograms, his base offense level should have been 28, rather than 30. ¹ See id. This two-point reduction would have resulted in a guideline range of 41-51 months. Judge Glasser, with obvious reluctance, rejected defendant's argument, holding that Chapman mandated the Defendant now appeals his sentence. ²

                inclusion of the weight of the creme liqueur in the overall weight calculation.   Judge Glasser accepted Probation's calculation of the guideline range (51-63 months) and sentenced defendant to 51 months of imprisonment
                

DISCUSSION

The government concedes that the creme liqueur was merely a mask to conceal the cocaine and that before the cocaine could be distributed, it would have to be distilled out of the liqueur. Similarly, the government does not contest the defendant's argument that the creme liqueur was not ingestible and therefore was not marketable. With that, the issue becomes rather simple: Does the sentencing scheme require that the weight of an unusable portion of a mixture, which makes the drugs uningestible and unmarketable, be included in the overall weight calculation? We think not.

Section 2D1.1 is the applicable guideline for defendants convicted of importing controlled substances. United States Sentencing Guidelines, Guidelines Manual (1990) (Appendix A-Statutory Index). This section states that "[u]nless otherwise specified, the weight of a controlled substance set forth in the [Drug Quantity 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) note *. In turn, application note 1 to § 2D1.1 states: " 'Mixture or substance' as used in this guideline has the same meaning as in 21 U.S.C. § 841." This leads us inexorably to Chapman, where the Supreme Court focused on the meaning of the term "mixture or substance" in 21 U.S.C. § 841.

In Chapman, the defendants were convicted of distributing LSD, dissolved in blotter paper, in violation of 21 U.S.C. § 841(a). The pure LSD weighed approximately 50 milligrams; the combined weight of the LSD and the blotter paper--the carrier medium onto which the LSD had been sprayed--was 5.7 grams. Because the statute required a mandatory minimum sentence of five years for distributing one gram or more of a mixture or substance containing a detectable amount of LSD, see 21 U.S.C. § 841(b)(1)(B)(v), the Court had to determine whether Congress intended to include the weight of the carrier medium in the calculation. Examining the legislative history of the statute, as well as the ordinary meaning of the word "mixture", the Chapman Court held that "it is the weight of the blotter paper containing LSD, and not the weight of the pure LSD, which determines eligibility for the minimum sentence." Chapman, 111 S.Ct. at 1922.

As to legislative history, the Court concluded that Congress had 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." Id. at 1925 (citing H.R.Rep. No. 99-845, pt. 1, 11-12, 17 (1986) ("House Report ")). This led the Chapman Court to write that Congress intended "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." Id.

Focusing next on the dictionary definition of the word "mixture," the Chapman Court stated:

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 Id. at 1926. Rejecting the defendants' due process argument, the Chapman Court also noted Congress' rational concern for the amount of drugs that reach the streets, whether pure or impure:

blotter paper ... carrying LSD can be and often is ingested with the drug.

By measuring the quantity of the drugs according to the "street weight" of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the statute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme.

Id. at 1927-28.

The Chapman Court stressed that its decision would not result in widely divergent sentences for equally culpable defendants because Congress had made clear that those who distribute more of a drug by increasing the amount of dilutants in it are, in fact, more culpable. See Chapman, 111 S.Ct. at 1927-28 (citing House Report at 12, 17). This is because they are responsible for more of the noxious substance reaching the streets, albeit in diluted form. Purity is not the focal point of culpability; rather, Congress was concerned with the amount of consumable drugs on the market, whether pure or impure. See Chapman, 111 S.Ct. at 1927-28; see also United States v. Rolande-Gabriel, 938 F.2d 1231, 1237 (11th Cir.1991) ("The entire weight of drug mixtures which are usable in the chain of distribution should be considered in determining a defendant's sentence.").

The government argues that Chapman speaks plainly and directly to the present case and mandates the inclusion of the creme liqueur in the weight calculation. We disagree.

Our starting point is the word "mixture". We note that, in Chapman, the LSD and the blotter paper were held to be a mixture because they were commingled and, like cocaine diluted with cutting agents, the LSD and the blotter paper were not easily distinguishable and were both ingestible. See Chapman, 111 S.Ct. at 1926. Functionally, i.e., in terms of drug trafficking, the LSD and the blotter paper, like an egg and cheese omelet, became a single product. By contrast, the cocaine/creme liqueur was not an ingestible mixture, and at least one other court has noted that distilling cocaine from liquid waste is not particularly difficult. See Rolande-Gabriel, 938 F.2d at 1237 (government chemist easily distilled liquid waste from cocaine). Because the creme liqueur must be separated from the cocaine before the cocaine may be distributed, it is not unreasonable to consider the liquid waste as the functional equivalent of packaging material, see id., which quite clearly is not to be included in the weight calculation. See Chapman, 111 S.Ct. at 1926.

Consequently, even though the cocaine/creme liqueur may fall within the dictionary definition of "mixture", the legislative history convinces us that the weight of the creme liqueur must be...