U.S. v. Rolande-Gabriel, ROLANDE-GABRIE

• Decision Date: 14 August 1991
• Docket Number: D,ROLANDE-GABRIE,No. 90-5500,90-5500
• Citation: 938 F.2d 1231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maryefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1231

938 F.2d 1231

60 USLW 2174

UNITED STATES of America, Plaintiff-Appellee, v. Mary ROLANDE-GABRIEL, Defendant-Appellant.

No. 90-5500.

United States Court of Appeals Eleventh Circuit.

Aug. 14, 1991.

Alison M. Igoe, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Raymond A. Pierson, Linda Collins Hertz and Carol E. Herman, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Circuit Judge, RONEY ^*, Senior Circuit Judge, and PITTMAN ^**, Senior District Judge.

PITTMAN, Senior District Judge:

Appellant Mary Rolande-Gabriel pled guilty to importation of cocaine in violation of 21 U.S.C. Secs. 952(a)(1) and 960(a)(1). The district court assigned appellant a category 20 under the sentencing guidelines. Rolande-Gabriel asserts the district court erred in using the weight of an unusable non-drug liquid in calculating her base offense level under the sentencing guidelines. Roland-Gabriel further claims that the district court erred in refusing to dismiss the indictment after the government destroyed evidence in the case.

I. FACTS

On February 4, 1990, Rolande-Gabriel arrived in Miami, Florida from Port-au-Prince, Haiti. A Customs Service canine patrol detected drugs on Rolande-Gabriel while she was in the Miami airport. Based on the canine detection, Rolande-Gabriel was searched by Customs officials and was found to have within her clothing sixteen plastic bags containing a liquid substance. A field test revealed the liquid contained cocaine.

On March 22, 1990, the government filed with the district court a laboratory analysis of the contents of the bags. The report stated the gross weight of the contents was 241.6 grams. The government's chemist stated that when he received the bags, the contents were in a "liquid form" with "some white powder, all in there, almost like a real saturated salt solution, but not all [of] the salt was dissolved." The chemist emptied the bags of their contents into a container and established the weight as 241.6 grams. After weighing the contents, the chemist extracted a powder substance from the liquid and disposed of what he characterized as "liquid waste." The remaining powder weighed 72.2 grams. An analysis of the powder revealed that it was comprised of 7.2 grams of cocaine base and 65 grams of a cutting agent.

Rolande-Gabriel filed a motion to dismiss the indictment against her due to the destruction of the liquid. The district court denied the motion on grounds that Rolande-Gabriel did not suffer prejudice from the destruction of the liquid. Rolande-Gabriel subsequently pled guilty to importation of cocaine. Pursuant to U.S.S.G. Sec. 2D1.1 (1990), the district court calculated Rolande-Gabriel's base offense level category at 20. The court based its calculation on the gross weight of the contents of the bags. The district court then granted appellant a 2-level reduction for acceptance of responsibility and another 2-level reduction for minor involvement in the overall offense. Based on the foregoing, the district court sentenced Rolande-Gabriel to 21 months in prison with 3 years supervised release. She has remained incarcerated since February 4, 1990.

II. DISCUSSION

Rolande-Gabriel argues that under U.S.S.G. Sec. 2D1.1, the district court should not have included the weight of the liquid carrier medium in determining her base offense level. Section 2D1.1 provides that a defendant's sentence is to be calculated based on the weight of the controlled substance or mixtures containing a controlled substance. It is Rolande-Gabriel's position that the liquid was merely a carrier medium unrelated to the cocaine's use, and that the drug was in an unusable form until the powder was extracted from the liquid. Rolande-Gabriel argues that the term "mixture" does not include the liquid carrier medium used in this case because the drug was not usable. According to Rolande-Gabriel, widely divergent sentences will arise from the inclusion of unusable carrier mediums. For example, a defendant with one ounce of usable cocaine and a defendant with one ounce of usable cocaine mixed with an unusable liquid having a total weight of ten ounces, would receive substantially different sentences for essentially the same offense. Rolande-Gabriel's argument is premised on the contention that the inclusion of the weight of the liquid would be contrary to the sentencing guidelines' stated purpose of sentencing uniformity.

Section 2D1.1 states that "[t]he 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.S.G. Sec. 2D1.1, n. 1 (1990). The commission's comments to section 2D1.1 state " 'Mixture or substance' as used in this guideline has the same meaning as in 21 U.S.C. Sec. 841." Id. at 2.48. The government contends this language requires that the weight of the liquid carrier medium, without regard to its use, be included in determining Rolande-Gabriel's sentence. The Eleventh Circuit has applied the language of 21 U.S.C. Sec. 841 and section 2D1.1 in two cases. In addition to the arguments of the parties and these Eleventh Circuit cases, we also must address a recent United States Supreme Court decision applying 21 U.S.C. Sec. 841 and U.S.S.G. Sec. 2D1.1. United States v. Chapman, --- U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). Because Chapman was not presented to this court by the parties in their briefs or at oral argument, we will address it after our discussion of the parties' arguments and the previous Eleventh Circuit cases.

In United States v. Smith, 840 F.2d 886 (11th Cir.1988), the Eleventh Circuit applied the "substance or mixture" language of 21 U.S.C. Sec. 841. Smith had been convicted of knowingly and intentionally possessing with intent to distribute a substance containing cocaine base. Id. at 888. The evidence at trial established that Smith was in possession of 9.2 grams of a mixture containing cocaine base. Id. Under 21 U.S.C. Sec. 841, a defendant receives enhanced punishment if he is found to have 5 grams or more of a mixture containing cocaine. Smith challenged his conviction and sentence, asserting that the term "mixture" was unconstitutionally vague. Id. at 888-89. The Eleventh Circuit, in upholding Smith's conviction, held that the statutory language was clear, not ambiguous. Id. at 889. The court held that under 21 U.S.C. Sec. 841, the entire weight of the substance, not the purity of the drug, was the determinative factor. Id. at 888-89. In reaching this conclusion, the court stated that "absent a clearly expressed legislative intent to the contrary, we take the plain meaning of 'mixture' as conclusive." Id. at 889 (citation omitted). The court further noted that "the legislative intent supports our holding that the plain meaning of 'mixture' is conclusive." Id. at 889, n. 2 (relying upon H.R.Rep. No. 845 (part I), 99th Cong., 2d Sess. 12 (1986)).

In United States v. Lazarchik, 924 F.2d 211 (11th Cir.1991), the defendant contended on appeal that the district court erred in using the gross weight of the drugs he sold rather than their net or pure weight. Id. at 213. Lazarchik argued that, based on the prefatory phrase to the Drug Quantity Table of section 2D1.1, "Consistent with the Guidelines," the guidelines had to be applied consistent with the Anti-Drug Abuse Act of 1986. Lazarchik claimed the "mixture" language of 21 U.S.C. Sec. 841 should not apply to his offenses since the Anti-Drug Abuse Act of 1986 did not apply the "mixture" language to pharmaceutical drugs. According to Lazarchik, when the Sentencing Commission incorporated the "mixture" language of 21 U.S.C. Sec. 841 into the guidelines, it also incorporated the distinction between pharmaceutical drugs and other drugs into the guidelines. 924 F.2d at 213-214.

The court disagreed with Lazarchik's analysis and held that "the first sentence of the Guidelines footnote unambiguously requires total weight to be used in calculating the equivalency of all controlled substances." Id. at 214. The court held that the prefatory phrase does not create an ambiguity in U.S.S.G. Sec. 2D1.1. with regard to pharmaceutical drugs because the language of the footnote applied to all drugs. Id.

The government contends that Smith and Lazarchik support the position that section 2D1.1 should be given a plain meaning interpretation; however, these cases are not dispositive of the issues in the present case. In both cases, the drug mixture was in a usable form, i.e. usable by or marketable to the consumer. In the present case, the drug was in an unusable mixture, i.e. unusable or unmarketable to the consumer, at the time of arrest. A mixture composed of an unusable carrier medium and an usable controlled substance is addressed for the first time by this court.

Smith is also distinguishable from this case on other, additional grounds. The issue in Smith was whether the term "mixture" in 21 U.S.C. Sec. 841 was unconstitutionally vague, not whether unusable carrier mediums are covered by the term "mixture." Smith, 840 F.2d at 888-89. Therefore, the holding of that case is limited to the constitutional vagueness issue. In addition, Smith predates the enactment of the Sentencing Guidelines. Therefore, in Smith, this court was not required to consider the extensive public policy concerns of the guidelines when it determined the meaning of "mixture."

Lazarchik is equally distinguishable from the present case. Although the court held the language of the footnote to be unambiguous, its holding dealt with whether a specific drug, a controlled substance mixed with cough syrup, was covered by section 2D1.1, and not with the meaning of "mixture." Lazarchik, 924 F.2d at 214. The unambiguous language to which the court in Lazarchik was referring was the...