U.S. v. Neal, 94-1773

• Decision Date: 02 February 1995
• Docket Number: No. 94-1773,94-1773
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Meirl Gilbert NEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1405

46 F.3d 1405

UNITED STATES of America, Plaintiff-Appellee, v. Meirl Gilbert NEAL, Defendant-Appellant.

No. 94-1773.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 22, 1994.

Reargued En Banc Nov. 22, 1994.

Decided Feb. 2, 1995.

Byron G. Cudmore, Asst. U.S. Atty. (argued), Springfield, IL, for plaintiff-appellee.

Michael J. Costello (argued), Costello Law Office, Springfield, IL, for defendant-appellant.

Before POSNER, Chief Judge, and CUMMINGS, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

Defendant Meirl Gilbert Neal was convicted of conspiracy to distribute and possession with intent to distribute LSD-laced blotter paper and received a statutory minimum sentence of ten years imprisonment. Neal contests his sentencing, arguing that the district court misapplied the Sentencing Guidelines by including the actual weight of the LSD carrier medium in ascertaining whether Neal merited a mandatory minimum sentence. We hold that the district court properly calculated Neal's sentence and therefore affirm.

I.

Understanding Neal's objection to his sentence requires a brief history of Congress's and the Sentencing Commission's approach to drug-related sentencing. In 1986, Congress adopted a "market-oriented" approach to punishing drug trafficking, see Anti-Drug Abuse Act of 1986, Pub.L. 99-570, 100 Stat. 3207 (1986), aimed at punishing retail and wholesale dealers "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." Chapman v. United States, 500 U.S. 453, 461, 111 S.Ct. 1919, 1925, 114 L.Ed.2d 524 (1991). Acting under this principle, Congress set mandatory minimum sentences corresponding to the weight of a "mixture or substance containing a detectable amount" of various controlled substances, including LSD. See id. (citing 21 U.S.C. Secs. 841(b)(1)(A)(i)-(viii) and (B)(i)-(viii)). The statutory provision at issue both here and in Chapman, 21 U.S.C. Sec. 841(b)(1), provides for mandatory minimum sentences for distributing more than a certain amount of a "mixture or substance containing a detectable amount" of LSD. The Court, applying an "ordinary meaning" to the key terms "mixture" and "substance," concluded that the weight of the blotter paper containing LSD, and not the weight of the pure drug alone, determines eligibility for the mandatory minimum sentence. See Chapman, 500 U.S. at 461-63, 111 S.Ct. at 1925-26.

Until recently, the Sentencing Guidelines also used the entire weight of the "mixture or substance," including the weight of the carrier medium, to determine the applicable sentencing range for crimes involving LSD. See U.S.S.G. Sec. 2D1.1 and commentary. Effective November 1, 1993, however, the United States Sentencing Commission amended Sec. 2D1.1 by prescribing a uniform (and somewhat less stringent) formula for calculating LSD quantity. See United States v. Boot, 25 F.3d 52, 54 (1st Cir.1994). The new Guideline approach (Amendment 488) establishes a presumptive weight of 0.4 milligrams per dose of LSD, regardless of the carrier medium. U.S.S.G. Sec. 2D1.1. The district courts have discretion to apply this new formula retroactively, see 18 U.S.C. Sec. 3582(c)(2); U.S.S.G. Sec. 1B1.10(a) & (d), so that in appropriate circumstances a defendant may be considered for a reduction in a previously imposed sentence. United States v. Holmes, 13 F.3d 1217, 1222 (8th Cir.1994).

Defendant Neal was charged with conspiracy to distribute LSD, in violation of 21 U.S.C. Sec. 846, and possession with intent to distribute LSD, in violation of 21 U.S.C. Sec. 841(a)(1). Neal pleaded guilty to both counts on February 13, 1989. At sentencing, the district court held Neal accountable for blotter paper containing 11,456 doses or "hits" of LSD. The actual weight (including the carrier medium) of the 11,456 doses that Neal had possessed and conspired to distribute was 109.51 grams. This weight gave Neal, who fell into the Criminal History III category because of prior drunk driving convictions, a base offense level of 36. The offense level was reduced by two points for Neal's acceptance of responsibility, resulting in a final offense level of 34 and a sentencing range of 188 to 235 months. Accordingly, the district court sentenced Neal to 192 months of imprisonment on each count (the sentences to run concurrently) and five years of supervised release.

On December 10, 1993, Neal filed a pro se motion to reduce his sentence because of the intervening amendment to the Sentencing Guidelines. The district court elected to apply the amendment retroactively and recalculated the weight of the 11,456 doses as 4.58 grams. The recalculation gave Neal a base offense level of 28. Subtracting three points for acceptance of responsibility (Neal was allowed an additional one-point reduction for a timely plea), the district court placed Neal at a final offense level of 25, which provides in the Criminal History III category a sentencing range of 70 to 87 months.

However, the district court held that it had to follow the Chapman definition of "mixture or substance" in calculating the weight of the LSD for determining the applicability of any minimum penalty under Sec. 841(b)(1). The weight of the LSD blotter paper for which Neal was convicted, 109.51 grams, mandated a minimum sentence of ten years. 846 F.Supp. 1362. 21 U.S.C. Sec. 841(b)(1)(A)(v) (providing for a mandatory minimum ten year sentence for conviction involving more than 10 grams of LSD); U.S.S.G. Sec. 5G1.1(b). The court therefore set Neal's sentence at 120 months. Neal objected, asserting that court should have used the 4.58 gram calculation, which would require a mandatory minimum of only five years for a conviction involving more than one gram of LSD, 21 U.S.C. Sec. 841(b)(1)(B)(v), and allow the court to impose a sentence between 70 and 87 months. The court overruled Neal's objection and this appeal followed.

II.

The sole issue on appeal is whether the district court properly determined that an amendment to the Sentencing Guidelines prescribing a presumptive per dose weight of LSD applies to the calculation of a defendant's base offense level but not to his eligibility for a statutory mandatory minimum sentence. ¹ An interpretation of the Guidelines and its amendments presents a question of law which we review de novo. United States v. Jones, 983 F.2d 1425, 1429 (7th Cir.1993). The particular question raised here is one of first impression in our circuit. Cf. United States v. Tucker, 20 F.3d 242, 244 (7th Cir.1994) (making reference to the presumptive weight for LSD under the Guidelines in the context of determining whether a defendant was subject to a mandatory minimum sentence for distribution of cocaine); United States v. Sassi, 33 F.3d 56 (7th Cir.1994) (table) (unpublished opinion, text at 1994 WL 450134, 1994 U.S.App. LEXIS 30412) (disposing of similar issues without published opinion).

Neal makes three basic arguments for using the per-dose weight calculation instead of the Chapman weight calculation in deciding whether to impose a mandatory minimum penalty for Neal's conduct under 21 U.S.C. Sec. 841(b)(1). First, Neal submits that the presumptive weight approach reflected in U.S.S.G. Sec. 2D1.1, as amended, applies to the determination of both a defendant's base offense level and his eligibility for the statutory mandatory minimum sentence. Neal argues that Chapman does not conflict with this interpretation because Congress, through its inaction, has accepted the Guidelines amendment as the authoritative definition of the phrase "mixture or substance" for purposes of both the Guidelines and the mandatory minimum sentencing scheme. Neal also maintains that to the extent Chapman requires inclusion of the weight of the carrier medium, the amended Guidelines' weight calculation does include, in part, the weight of the carrier and is thus merely an application of Chapman. Second, Neal suggests that the "dual weight" sentencing scheme used by the district court is so illogical and unjust that it violates the Due Process Clause. Third, Neal contends that the dual method of weight calculation under the amended Guidelines creates an ambiguity that requires us to invoke the rule of lenity and impose a lesser punishment. We address each argument in turn.

A.

Under the district court's interpretation of federal law, a single amount of LSD is assigned two different weights for sentencing purposes: one weight for determining the base offense level under the Guidelines and another weight for determining eligibility for the mandatory minimum sentence provided in 21 U.S.C. Sec. 841(b)(1)(A)(v). The Guidelines, as the Supreme Court has observed, "were meant to establish a range of determinate sentences for categories of offenses and defendants according to various specified factors," Mistretta v. United States, 488 U.S. 361, 368, 109 S.Ct. 647, 653, 102 L.Ed.2d 714 (1989), in order to provide certainty and fairness and to eliminate unwarranted disparities in the sentences imposed upon similarly situated defendants. See 28 U.S.C. Sec. 991(b)(1)(B). At the same time, however, the Commission itself has long recognized that Congress has been of two minds with respect to sentencing federal criminals:

The sentencing guidelines system is essentially a system of finely calibrated sentences. For example, as the quantity of drugs increases, there is a proportional increase in the sentence. In marked contrast, the mandatory minimums are essentially a flat, tariff-like approach to sentencing. Whereas guidelines seek a smooth continuum, mandatory minimums result in "cliffs." The "cliffs" that result from mandatory minimums compromise proportionality, a fundamental premise for just punishment, and a primary goal of the Sentencing Reform Act.

United States Sentencing Commission, Special Report to...