U.S. v. Berroa-Medrano

• Decision Date: 06 September 2002
• Docket Number: No. 01-2212.,01-2212.
• Citation: 303 F.3d 277
• Parties: UNITED STATES of America v. Juan D. BERROA-MEDRANO a/k/a Kalin a/k/a Jose Rafael Rivero Jose Rivero, Appellant
• Court: U.S. Court of Appeals — Third Circuit

303 F.3d 277

UNITED STATES of America v. Juan D. BERROA-MEDRANO a/k/a Kalin a/k/a Jose Rafael Rivero Jose Rivero, Appellant

No. 01-2212.

United States Court of Appeals, Third Circuit.

Argued February 25, 2002.

Filed September 6, 2002.

Paul J. Hetznecker, Philadelphia, for Appellant.

Patrick L. Meehan, United States Attorney, Laurie Magid, for Policy and Appeals.

Robert A. Zauzmer (argued), Assistant United States Attorney, Senior Appellate Counsel, Barbara J. Cohan, Assistant United States Attorney, Philadelphia, for Appellees.

Before ROTH, FUENTES and GIBSON,^* Circuit Judges.

FUENTES, Circuit Judge.

This case requires us to consider what constitutes a "mixture or substance containing a detectable amount" of a controlled substance for purposes of sentencing. Pursuant to a plea agreement, defendant Juan Berroa-Medrano ("Berroa") pled guilty to a single count of conspiracy to distribute heroin, but reserved the right to challenge at sentencing the weight of the heroin in question. At sentencing, although one of the two packages Berroa admitted to distributing contained mostly drug cutting agents and only trace amounts of heroin, the court used the total weight of the two packages as the basis to sentence Berroa to a 100-month prison term. On appeal, Berroa challenges the sentence on the grounds that the court improperly considered the gross weight of the two packages, about 1 kilogram, rather than the net weight of the heroin itself. Because we conclude that the District Court was entitled to consider the entire weight of any mixture or substance that contained a trace amount of heroin, we affirm.

I.

A.

The facts of this case are fairly straight-forward. Berroa entered into an agreement with his co-defendant Mustafa Alabed to sell an undetermined amount of heroin to an individual who was actually a confidential informant. On October 28, 1997, the informant, equipped with a wireless transmitter, met with Alabed to arrange for the purchase of one kilogram of heroin.

The informant and Alabed met inside Alabed's carpet store in Philadelphia, and then, to complete the transaction, walked across the street to a building that Alabed was renovating. Inside the building, the two men met Berroa, who was holding a cereal box. Berroa handed the box to the informant, who opened it and found that it contained two separately wrapped packages, one large and one small, each containing an off-white substance that appeared to be heroin. The informant inspected the packages without removing the contents, and returned the box to Berroa, asking the defendants whether the heroin was from the same batch as a sample that had been given to him earlier in the day by Alabed. Alabed assured him that it was. The informant left the building, ostensibly to retrieve the payment for the heroin, but instead informed the drug enforcement agents of what had transpired. When he informed them that he believed Berroa was carrying a gun, the agents decided to wait for backup. Before backup arrived, however, Berroa fled the scene.

Once the backup officers arrived, Alabed was arrested and the cereal box containing the two packages of off-white powder was seized. The larger of the packages, which was approximately the size and shape of a kilo of heroin, was field-tested by the agents with negative results for the presence of heroin. However, the smaller package, which was on top of the larger one inside the cereal box, field-tested positive for heroin. The smaller package contained slightly more than one ounce of off-white powder. Subsequent laboratory analysis disclosed that the larger package weighed slightly less than one kilogram (983.9 grams) and was comprised almost exclusively of procaine and lidocaine, common heroin cutting agents. The lab also determined that the larger package contained traces of heroin, but the purity of the drug could not be determined due to its small quantity. The smaller package, weighing 32 grams, contained a similar mix of cutting agents, but with heroin detected at a purity of 3%.

B.

On December 3, 1997, a federal grand jury indicted Berroa, in absentia, along with Alabed, and charged him with conspiracy to distribute heroin in violation of 21 U.S.C. § 846; distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and distribution of heroin near a school in violation of 21 U.S.C. §§ 860(a) and 841(a)(1).¹ Berroa was further charged with using and carrying a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c). Berroa was arrested approximately one year later in December 1998, in Camden, New Jersey, on state criminal charges unrelated to the instant case. Thereafter, he was removed to the Eastern District of Pennsylvania to face the federal indictment.

On February 22, 1999, Berroa pled guilty, pursuant to a written plea agreement, to a single count of a superseding information charging distribution of heroin in violation of 21 U.S.C. § 841(a)(1).² The plea agreement provided for dismissal of the remaining charges. Additionally, Berroa's plea agreement contained a provision stating that the parties "have not agreed on the quantity of drugs on which the defendant's sentence should be calculated under[the relevant sentencing guidelines], and reserve their right to present their respective positions to the Court and Probation Department." App. Br. at 4.

On May 2, 2001, the District Court sentenced Berroa. The District Court concluded that under the United States Sentencing Guidelines, the entire contents of each package must be included in calculating Berroa's sentence. The court therefore determined that Berroa's offense conduct involved more than one kilogram of heroin, and that, accordingly, Berroa's sentencing guideline range was 168-210 months. However, because of the unusually low purity of the drug, the court granted Berroa a downward departure under U.S.S.G. § 2D1.1(b)(6), and sentenced him to 100 months imprisonment, 5 years supervised release, and a fine of $2,500.³ Berroa timely appealed.

II.

We have jurisdiction to review Berroa's sentence pursuant to 28 U.S.C. § 1291. We review de novo a district court's application of the Sentencing Guidelines. United States v. Henry, 282 F.3d 242, 246 (3d Cir.2002).

III.

A.

The District Court calculated Berroa's sentence using the Drug Quantity Table, subsection (c) of U.S.S.G. § 2D1.1.⁴ Application Note (A) of the "Notes to Drug Quantity Table" provides that, "[u]nless 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. Sentencing Guidelines Manual § 2D1.1(c), cmt. n.A. (emphasis added). The language is derived from the mandatory minimum sentence provision of the statute under which Berroa was convicted. Section 841(b) provides minimum penalties for anyone violating § 841(a), including "100 grams or more of a mixture or substance containing a detectable amount of heroin" 21 U.S.C. § 841(b)(1)(B)(i) (emphasis added). The District Court examined this language and determined that, under the circumstances of Berroa's case, it was required to include the combined weight of both packages in calculating Berroa's sentence. The judge commented that, although it was "unusual" in his experience that a lab was "unable to determine the purity of [the drug in question,]" he could not "ignore [that] ... [t]here was a detectable amount of a [controlled] substance" in the larger package. App. at A46. Therefore, the court determined that Berroa's base offense level, including a 2-step increase for obstruction of justice based on a false identity charge, was 34, resulting in a guideline range of 168-210 months imprisonment.⁵

The District Court was not without precedent in deciding to include the entire contents of the larger, highly adulterated package in sentencing Berroa. For example, this Court recently determined that, even when a drug contains a very slight amount of a controlled substance, the entire package must count toward a defendant's sentence. See United States v. Butch, 256 F.3d 171, 177-80 (3d Cir.2001) (instructing that the District Court must include the gross weight of Endocet pills in calculating a defendant's mandatory minimum sentence under § 841(b), even though the controlled substance (oxycodone) in the pills was merely 0.8% of the total weight of the pills); see also United States v. Touby, 909 F.2d 759, 772-73 (3d Cir.1990) (holding that the entire weight of 100-gram slab of Euphoria must be considered by sentencing court, even though the controlled substance only comprised 2.7% of the total weight); United States v. Buggs, 904 F.2d 1070, 1077, 1079-80 (7th Cir.1990) (upholding sentence under § 841(b) for mixture containing 1.2% heroin). Nevertheless, Berroa attempts to distinguish his case by arguing that an immeasurably small "trace" of a controlled substance, together with an overwhelming amount of cutting agent, is neither a "mixture" nor a "substance," either as those terms are commonly understood or as intended by the statute or the Sentencing Guidelines.

The Supreme Court has observed that since the terms "mixture" and "substance" have "not been defined in the statute or the Sentencing Guidelines and [have] no distinctive common-law meaning," they should be "construed ... to have their ordinary meaning." Neal v. United States, 516 U.S. 284, 289, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996) (citing Chapman v. United States, 500 U.S. 453, 461-62, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)). In Chapman, the Supreme Court analyzed a provision of the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. § 841, et seq., that calls for a mandatory minimum sentence of five years for the distribution of any "mixture or substance" containing LSD that weighed one gram or more. Chapman 500 U.S. at 455, 111 S.Ct. 1919 (quoting 21 U.S.C. § 841(b)(1)(B)...