U.S. v. Muschik

• Decision Date: 28 February 1995
• Docket Number: No. 93-30461,93-30461
• Citation: 49 F.3d 512
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee MUSCHIK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 512

49 F.3d 512

UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee MUSCHIK, Defendant-Appellant.

No. 93-30461.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 3, 1994.

Decided Feb. 28, 1995.

William M. Brooke, Moore, O'Connell & Refling, Bozeman, MT, for defendant-appellant.

Kris A. McLean, Asst. U.S. Atty., Helena, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before: WOOD, Jr., ^* HUG, and TANG, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge:

Following the Ninth Circuit's remand, Richard Lee Muschik was resentenced on December 6, 1993, to a prison term of twenty years pursuant to the mandatory minimum sentence set forth in 21 U.S.C. Sec. 841(b)(1)(A). Muschik had been earlier found guilty of escape in violation of 18 U.S.C. Sec. 751 and pleaded guilty to conspiracy to distribute lysergic acid diethylamide ("LSD") in violation of 21 U.S.C. Secs. 841(a)(1) and 846. In his appeal, Muschik argues that the district court erroneously concluded that ten grams or more of LSD were involved in this case. Muschik contends that the entire weight of the carrier medium should not be included when the weight of LSD is calculated. Instead, Muschik argues that the formula set forth in the November 1, 1993 amendment to U.S.S.G. Sec. 2D1.1(c) should be used to determine the net weight of LSD involved for sentencing purposes. For the reasons given below, we vacate the sentence imposed by the district court and remand for resentencing in accordance with this opinion.

I. BACKGROUND

Richard Lee Muschik was arrested on May 24, 1991, by the Drug Enforcement Administration ("DEA") pursuant to a Complaint charging him with conspiracy to possess with intent to distribute and actual distribution of LSD in violation of 21 U.S.C. Secs. 841(a)(1) and 846. On October 23, 1991, Muschik escaped from federal custody while awaiting trial on the drug charges. Muschik was apprehended again on November 28, 1991, and detained. On January 28, 1992, Muschik was convicted of escape in violation of 18 U.S.C. Sec. 751.

On March 12, 1992, Muschik pleaded guilty to conspiracy to distribute LSD in violation of 18 U.S.C. Secs. 841(a)(1) and 846. On May 26, 1992, the district court combined the escape and drug charges for sentencing and then determined that the amount of LSD involved required application of the mandatory minimum provision of 21 U.S.C. Sec. 841(b)(1)(A). Pursuant to this statute, and in light of Muschik's prior state felony drug conviction, Muschik was sentenced to a term of twenty years.

Muschik appealed these convictions and the sentence. We affirmed the escape and drug convictions, but vacated the district court's sentence and remanded for resentencing in strict compliance with the inquire and inform provisions of 21 U.S.C. Sec. 851(b) regarding the enhancement of Muschik's sentence Prior to the district court's resentencing, the U.S. Sentencing Commission amended the Sentencing Guidelines and changed the manner in which the weight of LSD is calculated for sentencing purposes. U.S.S.G. Sec. 2D1.1(c) (1993) (as amended by U.S.S.G. app. C, amend. 488 (1993)) ("Amendment 488"). Under the prior method, which includes the entire weight of the carrier medium, it was determined that Muschik possessed 101 grams of LSD. In preparation for resentencing, the United States Probation Office recalculated the weight of this LSD under the amended guidelines, which establish a standard weight of 0.4 milligram per dosage of LSD, and arrived at a weight of 5.68 grams.

for recidivism. United States v. Muschik, 995 F.2d 234 (9th Cir.1993).

On December 6, 1993, the district court nevertheless resentenced Muschik to a term of twenty years--a term of the same length as it had imposed originally. Muschik appeals.

II. ANALYSIS

We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Conkins, 987 F.2d 564, 571 (9th Cir.1993). The district court's other legal determinations in this regard are also reviewed de novo. United States v. Anderson, 895 F.2d 641, 644 (9th Cir.1990). To the extent that the district court has made any factual determinations, the clearly erroneous standard applies. Id.

A.

Title 21 U.S.C. Sec. 841(b)(1)(A)(v) imposes a mandatory minimum sentence of ten years imprisonment for a violation of Sec. 841(a) ¹ where there is involved "10 grams or more of a mixture or substance containing a detectable amount" of LSD. Section 841(b)(1)(B)(v) imposes a mandatory minimum sentence of five years imprisonment where there is involved "1 gram or more of a mixture or substance containing a detectable amount" of LSD. Both sections provide for a doubling of the mandatory minimum sentence where the defendant has one or more prior felony drug convictions. Thus, it is obvious that properly determining the weight of LSD involved in a given case is of paramount importance for sentencing purposes.

The calculation of LSD weight is difficult, however, because the quantity of the actual drug present in each dose is infinitesimal--the DEA assigns a standard weight for LSD of only 0.05 milligram per dosage unit. To facilitate transportation, distribution and use of LSD, it is commonly dissolved in solvent and then spread upon a medium--usually blotter paper, gelatin, or a sugar cube. This inactive carrier medium typically far outweighs the LSD itself; thus, there exists the potential for wide variances in sentencing based upon nothing more than the happenstance weight of the particular carrier chosen by a given defendant.

In Chapman v. United States, 500 U.S. 453, 468, 111 S.Ct. 1919, 1929, 114 L.Ed.2d 524 (1991), the Supreme Court held that the term "mixture or substance" present in 21 U.S.C. Sec. 841(b)(1) includes the entire weight of the carrier medium. ² The district court

relied upon Chapman to calculate the weight of LSD involved in this case. With the entire weight of the carrier medium thus included, the amount of LSD involved was determined to be 101 grams--well over the ten gram benchmark required for the imposition of the ten year mandatory minimum sentence established by 21 U.S.C. Sec. 841(b)(1)(A). In light of Muschik's prior state felony drug conviction, the district court followed Sec. 841(b)(1)(A) and doubled the mandatory minimum sentence to twenty years.

B.

Muschik does not contest the holding of Chapman directly, but instead contends that the November 1, 1993 amendment to Sec. 2D1.1(c) of the Sentencing Guidelines compels a recalculation of the weight of the LSD as the amendment postdates both the Chapman decision and the Ninth Circuit's remand for resentencing. Since there is no ex post facto clause problem involved here, as Muschik is certainly not disadvantaged by the amendment, the Guidelines that are in effect upon Muschik's resentencing must be applied. United States v. Fagan, 996 F.2d 1009, 1018 (9th Cir.1993). The question presented here concerns the actual nature of the changes wrought by the amendment to Sec. 2D1.1(c) and the relation of that amendment to Chapman and the mandatory minimum statutes.

III.

We begin by noting that this precise issue has already been addressed, with differing results, by several other circuits. We find the reasoning of the Eighth Circuit as expressed in United States v. Stoneking, 34 F.3d 651 (8th Cir.1994), a late case not cited to us by the parties, persuasive and herein adopt it for our own. ³ Nor did the district court have the benefit of this late case. We reject the contrary result reached by the Seventh, Fifth, Tenth and First Circuits. See United States v. Neal, 46 F.3d 1405 (7th Cir.1995) (en banc); United States v. Pardue, 36 F.3d 429 (5th Cir.1994); United States v. Mueller, 27 F.3d 494 (10th Cir.1994); United States v. Boot, 25 F.3d 52 (1st Cir.1994).

A.

As an initial matter, it is clear that where a statute and a Guideline conflict, the statute controls. ⁴ Therefore, to grant full effect to Amendment 488, we must find that the amendment does not conflict with the mandatory minimum provisions at issue here. Our review of the amendment, the relevant provisions of the statute, and the policy considerations behind each leads us to conclude that Amendment 488 and the statute do not conflict.

As discussed above, the Supreme Court in Chapman held that the term "mixture or substance" found in 21 U.S.C. Sec. 841(b)(1) "requires the weight of the carrier medium to be included when determining the appropriate sentence for trafficking in LSD." Chapman, 500 U.S. at 468, 111 S.Ct. at 1929. At the time Chapman was decided, however, neither the Sentencing Guidelines nor Sec. 841(b)(1) defined the words "mixture" or "substance." Therefore, the Supreme Court utilized dictionary-supplied definitions. ⁵ The Supreme Court determined that blotter paper fell within its definition of "mixture or substance" because "[t]he LSD crystals One important factor behind the Chapman decision was that the Supreme Court was there presented with only two choices: utilize the negligible net weight of the pure LSD or utilize the gross weight of the pure LSD together with its carrier medium. "Faced with that choice, the Court could only choose the gross weight, in keeping with the fact that the weights of other drugs include dilutants and cutting agents, and in keeping with the market-oriented approach adopted by the Guidelines." Stoneking, 34 F.3d at 654; see also Neal, 46 F.3d at 1414-15 (Ripple, J., dissenting). The advent of Amendment 488 presents a third option: A court may now utilize an assigned rational weight for the calculation of sentences.

are inside of the paper, so that they are commingled with it, but the LSD does not chemically combine with the paper. Thus, it retains a separate existence ... The LSD is diffused among the fibers of the paper." Id. at 462, 111 S.Ct. at 1926.

It is our belief that the assignment of a uniform and rational...