U.S. v. Upthegrove, 91-2991

• Citation: 974 F.2d 55
• Decision Date: 03 September 1992
• Docket Number: No. 91-2991,91-2991
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pete UPTHEGROVE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 55

974 F.2d 55

UNITED STATES of America, Plaintiff-Appellee, v. Pete UPTHEGROVE, Defendant-Appellant.

No. 91-2991.

United States Court of Appeals, Seventh Circuit.

Submitted June 16, 1992.

Decided Sept. 3, 1992.

Andrew B. Baker, Jr., Asst. U.S. Atty., Dyer, Ind., for plaintiff-appellee.

Fred R. Hains, South Bend, Ind., for defendant-appellant.

Before CUMMINGS, POSNER and MANION, Circuit Judges.

PER CURIAM.

Pete Upthegrove pleaded guilty to one count of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846. On appeal, Upthegrove's appointed counsel filed a motion to withdraw, believing any appeal would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the Anders brief, counsel identifies several issues that Upthegrove conceivably could argue on appeal. Although none of these arguments merits reversal, one issue is of first impression in this Circuit: whether the poor quality of the marijuana involved in the offense is a factor justifying a discretionary downward departure under the United States Sentencing Guidelines. We have therefore chosen to address this issue in a published opinion; the rest are decided today in an unpublished order.

Upthegrove picked marijuana as part of a broad marijuana distribution network. The type of marijuana he picked is commonly referred to as "Indian ditch weed." It is a low grade marijuana typically used as filler with higher grade marijuana. At sentencing, the district court refused to grant a downward departure from the applicable guideline range for the poor quality of the marijuana. Ordinarily, we lack jurisdiction to consider discretionary refusals to depart downward. United States v. Gant, 902 F.2d 570, 572 (7th Cir.1990). In this case, however, the district court did not exercise its discretion, but instead concluded that it had no authority to depart. In such a case, we have appellate jurisdiction. United States v. Poff, 926 F.2d 588, 590-91 (7th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 96, 116 L.Ed.2d 67 (1991). Nonetheless, we agree with the district court that a downward departure based on the low quality of the relevant drug is improper. Although this Court has not squarely addressed this particular issue in the past, the Sentencing Guidelines and the case law do provide strong guidance.

The section of the guidelines entitled "Grounds for Departure" explains that:

the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."

U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). It is clear from the text of the guidelines that the Sentencing Commission adequately took into consideration the quality of the drugs. The Sentencing Commission made an explicit decision to focus on the weight and not the purity of the drugs in determining the offense level. Section 2D1.1(a)(3) of the guidelines indicates that the base offense level for the majority of drug offenses is to be set by reference to the Drug Quantity Table, a table based solely on the weight of the substance involved. Section 2D1.1(c) further explains: "Unless otherwise specified, the weight of a controlled substance set forth in the [Drug Quantity T]able refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." Application Note 9 of section 2D1.1 "otherwise specifies" that in cases where an unusually pure form of the drug is involved, an upward departure may be warranted. There is no corresponding provision suggesting a downward departure for low quality drugs. If district courts could depart from the Drug Quantity Table anytime they are faced with drugs of less than "average" purity, the Sentencing Commission's decision to focus on the weight of the drugs in sentencing would be eviscerated.

Nor does the case...