US v. Bishop, CR 88-3005.
| Decision Date | 07 February 1989 |
| Docket Number | No. CR 88-3005.,CR 88-3005. |
| Citation | 704 F. Supp. 910 |
| Parties | UNITED STATES of America, Plaintiff, v. Sidney Wayne BISHOP, Jimmy Steven Jilek, and Jerald James Ayers, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Paul C. Lillios, Asst. U.S. Atty., Cedar Rapids, Iowa, for plaintiff.
Michael E. Sheehy, Cedar Rapids, Iowa, for defendant Bishop.
Russell H. Schroeder, Jr., Charles City, Iowa, for defendant Jilek.
Stephen A. Swift, Cedar Rapids, Iowa, for defendant Ayers.
The defendants came before the court for sentencing on January 30, 1989, accompanied by their respective counsel, i.e., Michael E. Sheehy, Esq. for the defendant Bishop, Russell Schroeder, Jr., Esq. for the defendant Jilek, and Stephen A. Swift, Esq. for the defendant Ayers. The United States was represented by Paul C. Lillios, Esq., Assistant United States Attorney. All three defendants have been found guilty, either by plea or jury verdict, of Count 7 of the Indictment, which charged them with conspiracy to distribute or possess with the intent to distribute more than 10 grams of lysergic acid diethylamide (LSD) in violation of 21 U.S.C. § 846. Defendants Bishop and Jilek have also been found guilty of other drug violation counts of the Indictment as well. However, for purposes of sentencing under the Sentencing Reform Act of 1984 and the newly promulgated Sentencing Guidelines, all the counts of conviction for the drug offenses are grouped and the base offense is driven by the quantity of controlled substances involved in the relevant offense conduct. Sentencing Guidelines, §§ 1B1.3(a)(2), 2D1.1(a)(3), 3D1.2(d).
1. The parties have stipulated that, for the purposes of sentencing, Exhibits 15, 16 and 17 (those being the sheets of blotter paper consisting of small perforated squares impregnated with LSD involved in the common conspiracy count and introduced as evidence in the Jilek trial) contain a total of 263 milligrams of LSD. The parties also stipulate that the total weight of the drug impregnated blotter paper in the three exhibits is 19.75 grams. If the offense level is determined by the weight of only the LSD, the base offense level would be a level 18, resulting in a potential guideline sentencing range of 27-33 months for a Category I offender (which all three defendants are). If the base offense level is determined by the gross weight of the LSD and the blotter paper used as its carrier medium, then the base offense level increases to a level 32 resulting in a potential sentencing range of 121-151 months for each defendant.
2. The testimony during the Jilek trial indicated that users of LSD either lick the LSD from the tab of blotter paper (dissolving the impregnated LSD with their saliva) or they simply chew and swallow the small square of blotter paper itself containing the absorbed LSD. The method of ingestion of the drug appears to be a matter of the personal preference of the user. What is important is that the blotter paper itself can be and is ingested with the drug much the same as any dilutant or cutting agent would be ingested.
3. At the sentencing hearing, the court ruled from the bench that the total weight of the blotter paper (which contains both the LSD and the paper) was the correct weight to use for sentencing purposes. The purpose of this memorandum and order is to put that decision and the court's reasoning for it of record in the file.
1. In order to determine whether the gross weight of the blotter paper and the LSD or the weight of the LSD alone is the relevant weight for purposes of sentencing, the court must examine the statute under which defendants are to be sentenced.
21 U.S.C. § 841 (emphasis added). The plain language of the statute indicates that Congress intended for the penalties imposed upon those convicted of violating 21 U.S.C. § 841(a) to be driven by the quantity of "a mixture or substance containing a detectable amount of LSD." 21 U.S.C. § 841(b)(1)(A)(v). The question the court must resolve is whether the blotter paper in which the LSD was dispersed is "a mixture or substance" under the statute. The court finds that the blotter paper, which held the LSD in this case, is a "substance" which contains a detectable amount of LSD. Therefore, the court finds that, under the plain language of the statute under which defendants are to be sentenced, the relevant weight for purposes of determining sentence is the weight of the blotter paper in which the LSD is disbursed.
A further examination of the statute confirms this conclusion. For example, as pointed out by the government, had Congress intended the penalties to be driven by the weight of pure LSD, apart from any mixture or substance in which it might be dispersed, it could have so provided in the statute. In fact, Congress did just that with regard to phencyclidine (PCP). 21 U.S.C. § 841(b)(1)(A)(iv) provides for the imposition of a penalty based upon either the quantity of pure PCP or the quantity of a "mixture or substance containing a detectable amount" of PCP. Id. Thus, Congress provided in one section of the statute for the imposition of penalties in cases involving PCP to be driven by either the quantity of pure PCP or the quantity of a mixture or substance containing a detectable amount of PCP, and in the next subsection of the same statute provided that penalties in cases involving LSD be determined only by the quantity of a mixture or substance containing a detectable amount of LSD. Therefore, the court finds that Congress intended for the penalties in cases involved LSD to be driven by the quantity of a mixture or substance containing a detectable amount of LSD and not by the quantity of pure LSD. In light of the plain language of the statute, the court need not examine the legislative history. U.S. v. Wood, 834 F.2d 1382, 1388 (8th Cir.1987).
The court notes that other cases bolster the conclusion that the relevant weight for purposes of sentencing is the...
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U.S. v. Marshall
...Act of 1988.The second amendment responds to an inequity discussed in several recent cases involving LSD. See, e.g., United States v. Bishop, 704 F.Supp. 910 (N.D.Iowa 1989). In these cases the courts determined that the weight of carriers such as sugar cubes, gelatin cubes, and blotter pap......
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...in part). It can, however, provide evidence that an effect of a statute was simply overlooked. 8. See, e.g., United States v. Bishop, 704 F.Supp. 910 (ND Iowa 1989). 9. Senator Biden offered the following example to highlight the inequities that resulted if the carrier weight were included ......
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U.S. v. Bishop
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