U.S. v. Bishop

• Decision Date: 22 January 1990
• Docket Number: 89-1278,89-1450 and 89-1522,89-1279,Nos. 89-1221,s. 89-1221
• Citation: 894 F.2d 981
• Parties: UNITED STATES of America, Appellee, v. Sidney Wayne BISHOP, a/k/a "Sid", Appellant. UNITED STATES of America, Appellee, v. Jerald James AYERS, Appellant. UNITED STATES of America, Appellee, v. Jimmy Steven JILEK, Appellant. UNITED STATES of America, Appellee, v. William J. EMANUEL, Appellant. UNITED STATES of America, Appellee, v. Michael Joseph MCGUIRE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 981

894 F.2d 981

UNITED STATES of America, Appellee, v. Sidney Wayne BISHOP, a/k/a "Sid", Appellant.

UNITED STATES of America, Appellee, v. Jerald James AYERS, Appellant.

UNITED STATES of America, Appellee, v. Jimmy Steven JILEK, Appellant.

UNITED STATES of America, Appellee, v. William J. EMANUEL, Appellant.

UNITED STATES of America, Appellee, v. Michael Joseph MCGUIRE, Appellant.

Nos. 89-1221, 89-1278, 89-1279, 89-1450 and 89-1522.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 15, 1989.

Decided Jan. 22, 1990.

Rehearing and Rehearing En Banc Denied in No. 89-1279 March

7, 1990.

Rehearing and Rehearing En Banc Denied in No. 89-1278 March

8, 1990.

Rehearing and Rehearing En Banc Denied in No. 89-1221 March

12, 1990.

Michael E. Sheehy, Cedar Rapids, Iowa, for appellant Bishop.

Stephen A. Swift, Cedar Rapids, Iowa, for appellant Ayers.

Russell Schroeder, Jr., Charles City, Iowa, for appellant Jilek.

Patricia M. Hulting, Des Moines, Iowa, for appellant William J. Emanuel.

Paul D. Scott, Des Moines, Iowa, for appellant Michael Joseph McGuire.

Paul C. Lillois, Cedar Rapids, Iowa, Lester A. Paff, Des Moines, Iowa, for appellee U.S.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and ROSS, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

These cases raise the common issue of whether, in sentencing a defendant convicted of possessing or distributing lysergic acid diethylamide (LSD) under the United States Sentencing Guidelines, the offense level is based solely upon the weight of the pure LSD or upon the combined weights of the LSD and the blotter paper used as a carrier for the drug. All of the appealing defendants were sentenced under the Guidelines based upon the weight of both the pure drug and the blotter paper. The appellants collectively argue that including the weight of the blotter paper in determining the weight of the controlled substance contravenes the intent of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(A)(v) (1982 & Supp. V 1987), violates the due process and equal protection clauses of the Constitution, and conflicts with the goals of the Guidelines; and that the statutory language is unconstitutionally vague. For the reasons discussed below, we affirm the judgments of the district courts.

Sidney Wayne Bishop, Jerald James Ayers, and Jimmy Steven Jilek were charged as co-defendants with various offenses involving the distribution of LSD. Bishop, appellant in 89-1221, pled guilty to one count of distributing approximately one gram or more of a mixture or substance containing LSD in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(v), and 18 U.S.C. Sec. 2; and to one count charging him with conspiracy to distribute and possession with intent to distribute approximately ten grams or more of a mixture or substance containing LSD in violation of 21 U.S.C. Sec. 846.

Ayers, appellant in 89-1278, pled guilty to the second of the two counts enumerated above. Jilek, appellant in 89-1279, was convicted after a trial by a jury of four counts: two counts of distributing one gram or more of a mixture or substance containing LSD in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(v), and 18 U.S.C. Sec. 2; one count of distributing ten grams or more of a mixture or substance containing LSD in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A)(v), and 18 U.S.C. Sec. 2; and to one count of conspiracy to distribute and possession with intent to distribute ten grams or more in violation of 21 U.S.C. Sec. 846.

Before sentencing, all parties stipulated that the total weight of the three exhibits giving rise to the prosecution (the sheets of blotter paper impregnated with LSD) was 19.75 grams, and that the estimated amount of pure LSD contained within the blotter paper, not including the weight of the blotter paper itself, was 263 milligrams. The order observed that the base offense level would be 18 if the offense level was based on the weight of the LSD without the blotter paper. The district court ¹ determined that the sentence should be based upon the total weight of the impregnated blotter paper which resulted in a base offense level of 32. 704 F.Supp. 910, 913 (N.D.Iowa 1989).

In Judge Hansen's order, he referred to testimony during the Jilek trial indicating that users of LSD either licked the LSD from the tab of blotter paper, which dissolved the impregnated LSD with their saliva, or simply chewed and swallowed the small square of blotter paper containing the absorbed LSD. The method of ingestion was a matter of the user's personal preference. Judge Hansen observed that "[w]hat is important is that the blotter paper itself can be and is ingested with the drug much the same as any dilutant or cutting agent would be ingested." Id. at 911.

Judge Hansen analyzed the language of 21 U.S.C. Sec. 841, ² particularly focusing on the language "a mixture or substance containing a detectable amount of [LSD]." He found support for his conclusion that the blotter paper was a "substance" containing a detectable amount of LSD both in the language of the statute itself and in its contrasting treatment of PCP (phencyclidine). For PCP offenses, the statute provides for imposing a penalty based upon either the quantity of pure PCP or the quantity of the mixture or substance containing a detectable amount of PCP. From this he concluded that Congress intended that LSD sentences were to be determined by the quantity of a mixture or substance containing a detectable amount of LSD, and not by the quantity of pure LSD. Id. at 912.

Accordingly, Bishop was sentenced to 121 months, Ayers was sentenced to 78 months, and Jilek was sentenced to 148 months.

William J. Emanuel, appellant in 89-1450, pled guilty to a single count information charging him with violating 21 U.S.C. Sec. 841(b)(1)(A)(v) by possessing with the intent to distribute LSD in an amount weighing in excess of ten grams. Emanuel made the following stipulations for the purpose of the sentencing hearing: LSD is commonly sold in single dosage units contained on blotter paper or sugar cubes with each paper tab or cube containing one dose. According to the user's personal preference, the blotter paper or sugar may or may not be ingested. The Drug Enforcement Agency's dosage equivalency table, contained in the Federal Sentencing Guidelines Manual, page 69, states that the "dosage equivalents provided in these tables reflect the amount of the pure drug in an average dose." According to this table, the average dose of LSD contains .0001 gram pure LSD, and there are 10,000 dosage units in one gram of liquid LSD. The retail value of the 3500 dosage units possessed by Emanuel on October 14, 1988, the date of his arrest, was $3,500. It was also stipulated that a laboratory chemist had determined that the total LSD per weight of dosage unit in percentage per weight ranged from .46 percent to 2.74 percent.

In sentencing Emanuel, the district court ³ considered the weight of both the paper and the drugs. Pursuant to the presentence investigation report and the Guideline tables of Section 2D1.1, the heroin equivalency of the drugs attributed to Emanuel was 11,516.02 grams. This resulted in a base offense level of 36 with a downward departure of two levels for acceptance of responsibility. This made the total offense level 34 and resulted in a sentence of 151 months. The ten year mandatory minimum sentence of 21 U.S.C. Sec. 841(b)(1)(A)(v) was applied. If the sentence calculations had been based on dosage equivalency tables for the LSD only, not considering the paper weight, the heroin equivalency would have been 100.99 grams. This would result in a base offense level of 26, and after departing downward, a total offense level of 24.

Judge Vietor's comments from the bench at Emanuel's sentencing hearing reveal that he adopted the rationale of Judge Hansen in his order concluding that the sentences of Bishop, Jilek, and Ayers should be based upon the weight of the blotter paper and the LSD combined. He also relied upon this court's decision in United States v. McGeehan, 824 F.2d 677 (8th Cir.1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988).

Michael Joseph McGuire, appellant in 89-1522, was involved in at least one drug transaction with Emanuel, but was charged separately. McGuire pled guilty to a one count information charging him with distributing 3,500 dosage units of LSD in violation of 21 U.S.C. Sec. 841(a)(1). He entered into the stipulation referred to above in which Emanuel was also a party, and was sentenced to 151 months imprisonment (the mandatory minimum sentence was applied). In his order, Judge Vietor held that the weight of the blotter paper was to be included in determining the weight for sentencing purposes.

I.

The standard of review of sentences imposed under the Guidelines is mandated by statute. 18 U.S.C. Sec. 3742. Findings of fact are reviewed under the clearly erroneous standard. In the case before us, however, this principle does not apply since the parties stipulated to the facts which are relevant to the sentencing considerations, namely, the weight of LSD impregnated blotter paper which determined the sentences in question. The issue before us calls for a purely legal determination of whether, under the statutes and Guidelines, the sentence should be based upon the weight of the blotter paper and LSD combined or solely upon the weight of pure LSD. Since the issue is one of law, we review the district courts' orders on a de novo basis. We are satisfied that the district courts did not err in including the weight of the pure LSD as well as the weight of the blotter paper impregnated with LSD in sentencing the defendants.

This court has had earlier occasions to consider the statute in issue here. In United States v. McGeehan, 824 F.2d 677 (8th Cir.1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988), we discussed an earlier version of the statute which contained the...