U.S. v. Johnson, 91-1621

• Decision Date: 29 July 1993
• Docket Number: No. 91-1621,91-1621
• Citation: 999 F.2d 1192
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin D. JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1192

999 F.2d 1192

UNITED STATES of America, Plaintiff-Appellee, v. Kevin D. JOHNSON, Defendant-Appellant.

No. 91-1621.

United States Court of Appeals Seventh Circuit.

Argued Dec. 1, 1992.

Decided July 29, 1993.

Stephen B. Clark, Asst. U.S. Atty. (argued), Michael Jude Quinley, Office of the U.S. Atty., Crim. Div., Fairview Heights, IL, for plaintiff-appellee.

Daniel S. Alexander (argued), Chicago, IL, for defendant-appellant.

Before CUDAHY and RIPPLE, Circuit Judges, and LAY, Senior Circuit Judge. ^*

LAY, Senior Circuit Judge.

Kevin D. Johnson was charged with knowingly and intentionally possessing with intent to distribute more than 50 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) (1981), and using and carrying a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(C) (1984). The jury found Johnson guilty of the drug charge, but not guilty of the firearm charge. At sentencing, the district court assigned Johnson a base offense level 32 under the Sentencing Guidelines for the quantity of drugs involved and then adjusted upward three levels for his role in the offense. Johnson was sentenced to 188 months imprisonment and he now appeals. We affirm in part and reverse and remand in part.

I. FACTS

On July 25, 1990, Special Agent Donald Veal executed a search warrant on Kevin Johnson's residence at 1416 North 40th Street in East St. Louis, Illinois. James O'Neill, a former neighbor of the Johnsons, had informed Agent Veal that Johnson was running a "crack house" from an abandoned residence across the street from the Roosevelt Projects. ¹ During the search of Johnson's bedroom, officers uncovered a .22 caliber revolver, over $25,000 in cash, various amounts of cocaine base, including a jar containing crystallized crack, a jar containing liquid with a "trace amount" of crack (Government Exhibit 7), and other assorted drug paraphernalia. Agents also found several envelopes addressed to Kevin Johnson at the 1416 North 40th Street address and to a residence at 1125 North 44th Street.

II. DISCUSSION

A. Calculation of the base offense level

Johnson asserts that the court erred in including the weight of the liquid in Government Exhibit 7 to determine his base offense level. The total weight of the cocaine base recovered, including cutting agents and adulterants, but not including the water was 47.4 grams. ² The weight of the waste water was 31.89 grams. Inclusion of the weight of the waste water with the 47.4 grams increased the base offense level by two points and the mandatory sentence from five years to ten years. Johnson argues that the liquid was waste material leftover from the cocaine base manufacturing process and that it should not be included under the Sentencing Guidelines. ³

Section 2D1.1 of the Sentencing Guidelines states:

Unless 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. Application note 1 adds: " 'Mixture or substance' as used in this guideline has the same meaning as in 21 U.S.C. § 841." ⁴

Exhibit 7 contained a "trace amount of cocaine" suspended in liquid, but the suspended particles could not be weighed. Because the liquid was not marketable and could not in any way be used as a drug, Johnson argues that it is not a "mixture" as contemplated by Congress. The government urges that to accept defendant's argument would be to ignore the plain meaning of the statute and its interpretation by the Supreme Court. We disagree.

In Chapman v. United States, --- U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), the Supreme Court addressed the meaning of the terms "mixture or substance" under 21 U.S.C. § 841. In Chapman, defendants had been convicted of selling ten sheets of blotter paper containing LSD in violation of 21 U.S.C. § 841(a). Although the weight of the LSD alone was approximately 50 milligrams, the trial court included the weight of the blotter paper--the carrier medium on which the LSD had been sprayed--to find the defendants responsible for 5.7 grams of LSD. This finding resulted in a five year mandatory minimum sentence. The Court upheld the trial court's use of the weight of the blotter paper containing LSD to determine the defendants' minimum sentences. Chapman, at ----, 111 S.Ct. at 1922.

The Court found that in passing the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207 (1986), Congress had adopted a "market-oriented" approach to punishing drug trafficking. Under this approach, the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of sentence. Chapman, at ----, 111 S.Ct. at 1925 (citing H.R.Rep. No. 99-845, pt. 1, pp. 11-1, 17 (1986)). The Court specifically determined that:

[Congress] 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.

Id. (citing H.R.Rep. No. 99-845, supra at pt. 1, p. 12) (emphasis added). Congress therefore set mandatory minimum sentences corresponding to the weight of the "mixture or substance containing a detectable amount of" the various controlled substances, including LSD. Chapman, at ----, 111 S.Ct. at 1925.

The Court concluded that the blotter paper was a "mixture or substance containing a detectable amount" of LSD. Adopting an ordinary dictionary definition of the word "mixture," ⁵ the Court stated:

The LSD is diffused among the fibers of the paper. Like heroine 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 ----, 111 S.Ct. at 1926. The Court further stressed that Congress had a rational basis for its choice of penalties for LSD distribution. The penalty scheme assigns more severe penalties to the distribution of larger quantities of drugs.

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.

Id. at ----, 111 S.Ct. at 1927-28.

The government urges that the statute and Chapman require inclusion of the total weight of the waste water because it is clearly a mixture as that word is commonly understood. The government focuses on the fact that the cocaine residue and the water are "two substances blended together so that the particles of one are diffused among the particles of the other." Chapman, at ----, 111 S.Ct. at 1926. We do not agree that Congress intended or that Chapman requires such a narrow understanding of the term "mixture" in this context.

The Chapman Court's inclusion of the weight of the blotter paper is rational in light of congressional intent and the unique characteristics of LSD. Congress intended penalties to be based on the "street weight of the drug" in the form in which it is sold. Its focus was on the weight of drug mixtures "ready for wholesale or ready for distribution at the retail level." Id. at ----, 111 S.Ct. at 1925. The unique characteristics of LSD thus required inclusion of the weight of the blotter paper. An average dose of LSD weighs approximately .05 milligrams. ⁶ The Supreme Court acknowledged that "LSD is not sold by weight, but by dose, and a carrier medium ... is used to facilitate the distribution of the drug. Blotter paper makes LSD easier to transport, store, conceal and sell." Id. at ----, 111 S.Ct. at 1928. Blotter paper or other LSD carriers are the only way that LSD can be distributed, ingested and weighed. "Functionally ... like an egg and cheese omelette, [they become] a single product." United States v. Acosta, 963 F.2d 551, 554 (2nd Cir.1992). Thus, inclusion of the weight of the blotter paper was not only rational, but also "necessary." Id.

The unique characteristics of LSD do not exist in the present case. The waste water does not serve as a dilutant, cutting agent or carrier medium for the cocaine base. It does not "facilitate the distribution," Chapman, --- U.S. at ----, 111 S.Ct. at 1928, of the cocaine in that cocaine is not dependent on the water for ingestion, and unlike a dilutant or cutting agent, the waste water does not in any way increase the amount of drug available at the retail level. The liquid, with just a trace of cocaine base, is merely a by-product of the manufacturing process ⁷ with no use or market value. The waste water is not ready for distribution at the wholesale or retail level because it will never be distributed at all. Under a market-oriented approach, when the mixture is not ingestible and therefore not marketable, there is no rational basis to a sentence based on the entire weight of a useless mixture. United States v. Acosta, 963 F.2d at 555.

To read the statute or Chapman as requiring inclusion of the weight of all mixtures, whether or not they are useable, ingestible, or marketable, leads to absurd and irrational results contrary to congressional intent. The defendant asks us to imagine a marijuana farmer who harvests his crop, leaving a few traces of the illegal plants on the ground. The farmer then plows his field to prepare for next year's crop and in so doing mixes the traces of marijuana with the soil. Is the farmer accountable for all the marijuana he harvested as well as the combined...