U.S. v. Turner, 94-5415
| Decision Date | 13 July 1995 |
| Docket Number | No. 94-5415,94-5415 |
| Citation | 59 F.3d 481 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey TURNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: James C. West, Jr., West & Jones, Clarksburg, WV, for appellant. Samuel Gerald Nazzaro, Jr., Asst. U.S. Atty., Wheeling, WV, for appellee. ON BRIEF: William D. Wilmoth, U.S. Atty., Wheeling, WV, for appellee.
Before ERVIN, Chief Judge, RUSSELL, Circuit Judge, and WILLIAMS, United States District Judge for the District of Maryland, sitting by designation.
Reversed and remanded by published opinion. Judge RUSSELL wrote the opinion, in which Chief Judge ERVIN and Judge WILLIAMS joined.
Defendant-Appellant Jeffrey Turner appeals the decision of the district court denying his motion under 18 U.S.C. Sec. 3582(c)(2) for an order reducing his sentence for drug-related convictions. Turner argues that Amendment 488 to the Sentencing Guidelines, which amended U.S.S.G. Sec. 2D1.1(c) and became effective November 1, 1993, applies retroactively to his case and reduces the weight of liquid lysergic acid diethylamide (LSD) which the district court should have considered in determining his base offense level. The district court applied the amendment retroactively but did not reduce Turner's offense level because it reasoned that the amendment did not alter the proper inclusion of the entire weight of pure LSD and liquid solvent for quantities of "liquid LSD." We find, however, that Amendment 488 instructs that the weight of the pure LSD alone in the relevant transactions involving liquid LSD should have been used to calculate Turner's base offense level. We therefore reverse and remand for resentencing.
On March 23, 1991, a federal grand jury in the Northern District of West Virginia returned a five-count indictment against Jeffrey Turner and Wesley Horner. The indictment specifically charged Turner with three counts: conspiracy to possess with intent to distribute in excess of one gram of LSD (Count 1); distribution of LSD within 1,000 feet of a school (Count 2); and aiding and abetting in the possession with the intent to distribute marijuana within 1,000 feet of a school (Count 5). During the three-day jury trial ending on September 12, 1993, the government presented evidence demonstrating that Turner was involved in four drug transactions, three involving LSD and one involving marijuana. The jury found Turner guilty on all counts.
By an order entered January 6, 1992, the district court sentenced Turner to 108 months imprisonment as to each of the three counts on which he was convicted, with the sentences to run concurrently. The district court also sentenced Turner to six years of supervised release, $220 restitution, and $150 special assessment. In arriving at the applicable Sentencing Guideline range, the district court considered the following to be the relevant quantities of LSD for sentencing purposes:
Sale on February 5, 1991--80 doses of LSD x .00625 grams per 0.50 grams
dose
Sale on February 15, 1991--4.6 milliliters of "Liquid LSD" (1 4.60 grams
ml = 1 gram)
Sale on February 19, 1991--3.0 milliliters of "Liquid LSD" (1 3.00 grams
ml = 1 gram)
______________
8.10 grams LSD
These quantities together with the one pound of marijuana from a reverse buy on March 22, 1991, and a one-level upward adjustment for distribution within 1,000 feet of a school produced a total offense level of 31. 1 This level and Turner's criminal history category of I corresponded to an imprisonment range of 108 to 135 months.
On November 15, 1993, Turner moved the district court under 18 U.S.C. Sec. 3583(c)(2) for an order reducing his term of imprisonment based upon Amendment 488 to the Sentencing Guidelines. In Amendment 488, which became effective on November 1, 1993, the United States Sentencing Commission amended Sec. 2D1.1(c) by establishing a uniform weight of 0.4 milligrams (mg) per dose to be used in determining the offense level in cases involving LSD on a carrier medium. Turner contended that the amendment applies retroactively to reduce his sentence.
By an order filed December 6, 1993, the district court directed the probation office to prepare a revised presentence report. In the report, the probation officer did not recommend reducing Turner's sentence because the officer construed the amendment as affecting the weight calculation only of the 80 doses of LSD on the blotter paper carrier medium from the sale on February 5, 1991. The officer therefore decreased the weight for this transaction from 0.50 grams to 0.032 grams (80 X 0.4 mg). This application did not reduce Turner's base offense level because his offense level was based primarily on his distribution of 7.6 milliliters of "liquid LSD." 2 On December 20, 1993, Turner filed objections to the report and asserted that the liquid LSD should be quantified under Amendment 488 by multiplying the number of doses in the liquid by the 0.4 mg conversion factor per dosage weight and not by using the total weight of the liquid LSD.
By an order filed May 19, 1994, the district court adopted the findings of the revised presentence report and declined to reduce Turner's sentence. The court applied the amendment to the LSD quantities distributed on blotter paper but did not apply the amendment to the transactions on February 15 and 19, 1991, involving the sale of liquid LSD in plastic bottles. The court reasoned that "in calculating the Guidelines involving liquid LSD, the 0.4 mg conversion factor should not be used because there is no carrier medium involved." Joint Appendix (J.A.) 10-11. In determining Turner's base offense level, the court therefore included the entire weight of the liquid LSD, 7.6 grams, using the proper one milliliter to one gram conversion ratio under the Measurement Conversion Table in U.S.S.G. Sec. 2D1.1, comment. (n. 10).
We agree with both parties that district courts have discretion to apply Amendment 488 retroactively to reduce sentences previously imposed. See 18 U.S.C. Sec. 3582(c)(2); U.S.S.G. Sec. 1B1.10(a), (d); United States v. Hanlin, 48 F.3d 121, 124 n. 2 (3d Cir.1995); United States v. Boot, 25 F.3d 52, 54 (1st Cir.1994). The district court in this case applied the amendment retroactively but did not reduce Turner's sentence because it construed the amendment as not affecting the weight calculation for quantities of "liquid LSD." This appeal therefore presents the isolated issue of how Amendment 488 governs the determination of a defendant's base offense level in a case involving liquid LSD. Because this issue involves the legal interpretation of the amendment, we review the district court's interpretation de novo. United States v. Barton, 32 F.3d 61, 65 (4th Cir.1994). We review the district court's factual findings in this inquiry for clear error. See id. at 64.
Amendment 488 specifically amended U.S.S.G. Sec. 2D1.1(c) by adding the following paragraph to the notes at the end of the Drug Quantity Table:
In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the purposes of the Drug Quantity Table.
U.S.S.G. Sec. 2D1.1(c)(n. *). The amendment also amended the Commentary to Sec. 2D1.1 by inserting the following additional note at the end of the Application Notes:
18. LSD on a blotter paper carrier medium typically is marked so that the number of doses ("hits") per sheet readily can be determined. When this is not the case, it is to be presumed that each 1/4 inch by 1/4 inch section of the blotter paper is equal to one dose.
In the case of liquid LSD (LSD that has not been placed onto a carrier medium), using the weight of the LSD alone to calculate the offense level may not adequately reflect the seriousness of the offense. In such a case, an upward departure may be warranted.
U.S.S.G. Sec. 2D1.1, comment. (n. 18) (emphasis added).
The parties do not dispute that Amendment 488 applies to the February 5, 1991, transaction because that sale involved 80 doses of LSD on blotter paper. Rather, Turner objects to the district court's using the total weight of the liquid LSD obtained in the transactions on February 15 and 19, 1991. He argues that his base offense level should be determined by converting the dosage units of the liquid into LSD quantities using the 0.4 mg conversion factor of the amendment. Turner's indictment states that each of these two transactions involved liquid containing "approximately 100 dosage units" of LSD. J.A. 5-6. The revised presentence report and the relevant police reports similarly state that the confidential informants, working under the direction of the Morgantown, West Virginia, Police Department, negotiated purchases in each of these transactions for 100 dosage units of liquid LSD.
Assuming the liquid LSD from the two transactions contained 200 dosage units, both parties correctly recognize that application of the conversion factor in Amendment 488 to the liquid LSD in this case would dramatically reduce Turner's base offense level. If the conversion factor were applied, the quantities involved in the sales on February 15 and 19, 1991, would constitute 40 mg (.04 grams) of LSD for each transaction (100 X 0.4 mg). These revised figures sharply contrast with the 4.6 grams and 3.0 grams attributed to Turner by directly including the entire volume of liquid LSD. Combining these figures with the 32 mg from the February 5, 1991, transaction and the one pound of marijuana from the March 22, 1991, transaction would reduce Turner's base offense level from 31 to 17, including the one-level upward adjustment for distribution within 1,000 feet of...
To continue reading
Request your trial
-
United States v. Griffith
...the Sentencing Reform Act of 1984 were "honesty," "reasonable uniformity," and "proportionality" in sentencing); United States v. Turner, 59 F.3d 481, 488 (4th Cir.1995) (rejecting an interpretation of a Guideline that "would contradict two of the fundamental purposes of the Guidelines: uni......
-
United States v. Williams
...that amendment to Guidelines commentary required "us to scrap our earlier interpretation of that guideline"); United States v. Turner, 59 F.3d 481, 488 (4th Cir.1995) (explaining that the "Commission has the authority to review the work of the courts and revise the Guidelines by adopting an......
-
Anderson v. U.S.
...the controlled substance before the controlled substance can be used." U.S.S.G. § 2D1.1 (appl. note 1); see also United States v. Turner, 59 F.3d 481, 489-90 (4th Cir.1995). That amendment went into effect in 1993. It, therefore, was already in effect when Anderson was sentenced in 2001, an......
-
Brown v. United States
...the court should not have included a portion of a crockpot cook that was poisonous in determining relevant conduct. In United States v. Turner, 59 F.3d 481 (4th Cir. 1995), the Fourth Circuit dealt with the proper interpretation of GuidelineAmendment 488 in LSD cases. In United States v. Sp......
-
Federal Sentencing Guidelines - Rosemary T. Cakmis and Fritz Scheller
...In determining the weight of liquid LSD, the Eleventh Circuit relied heavily on the Fourth Circuit decision in United States v. Turner, 59 F.3d 481 (4th Cir. 1995), and the commentary to U.S.S.G. section 2Dl.l(c). Camacho, 261 F.3d at 1074-75. The commentary provides that "[i]n the case of ......