US v. Emigh

• Decision Date: 09 July 1996
• Docket Number: No. 92-13-CR-FTM-21,92-123-CR-FTM-21.,92-13-CR-FTM-21
• Citation: 933 F. Supp. 1055
• Parties: UNITED STATES of America, Plaintiff, v. Thomas EMIGH, Defendant.
• Court: U.S. District Court — Middle District of Florida

933 F. Supp. 1055

UNITED STATES of America, Plaintiff, v. Thomas EMIGH, Defendant.

Nos. 92-13-CR-FTM-21, 92-123-CR-FTM-21.

United States District Court, M.D. Florida.

July 9, 1996.

Robert Barclift, Asst. U.S. Atty., United States Attorney's Office, Ft. Myers, Florida, for United States of America.

Rosemary Thalmueller Cakmis, Office of Federal Public Defender, Orlando, FL, for Defendant.

Order

GAGLIARDI, Senior District Judge.

I. Introduction

The Defendant moves this Court to reduce his sentence in light of a recent amendment to the United States Sentencing Guidelines which changed the marihuana plant-to-weight ratio for purposes of calculating a defendant's appropriate guideline range. U.S.S.G. § 2D1.1(c) (1995) (as amended by U.S.S.G. amend. 516 (1995)) ("Amendment 516"). The new guideline is retroactive. U.S.S.G. § 1B1.10(c). The Defendant advances two theories as to why his prior sentence should be reduced. First, the Defendant asserts that the new guideline ratio should govern the computation of the drug's weight for purposes of determining the statutory mandatory minimum. This theory is unsupportable given the unambiguous language of the statute. Second, the Defendant argues in the alternative that, even if the new plant-to-weight ratio does not affect the statutory mandatory minimum under 21 U.S.C. § 841, his sentence should nonetheless be reduced to the minimum of sixty months. For the reasons set forth below, the Court is also without authority to reduce Defendant's sentence on this alternative theory.

II. Facts

On April 28, 1995, the Defendant was sentenced for one count of manufacturing and possessing with intent to distribute marihuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii), and one count of failing to appear for sentencing in violation of 18 U.S.C. § 3146(a)(1). This Court imposed a cumulative sentence of seventy months imprisonment, ascribing sixty months to the marihuana violation and the balance of ten months to the Defendant's failure to appear.

According to his Presentence Investigation Report, the Defendant's sentence was based on 112 marihuana plants. At the time of his sentencing, the applicable guideline treated each marihuana plant as equivalent to one kilogram of marihuana. U.S.S.G. § 2D1.1(c)(4) (1994). Pursuant to Amendment 516 to the Guidelines, however, each plant is now equivalent to 100 grams of marihuana, "provided, however, that if the actual weight of the marihuana is greater, use the actual weight of the marihuana." U.S.S.G. § 2D1.1.(c) (1995) (as amended by U.S.S.G. amend. 516). However, the statute governing the mandatory minimum sentences for offenses involving marihuana has not been changed to conform with the amended guideline. The statute continues to impose a mandatory five-year term of incarceration for any offense involving "100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight," (emphasis added), 21 U.S.C. § 841(b)(1)(B)(vii). Where a conflict arises between a statute and the guidelines, the statute controls. U.S.S.G. § 5G1.1(b).

III. Discussion

Both parties in this case have argued that a recent Eleventh Circuit decision, United States v. Pope, 58 F.3d 1567 (11th Cir. 1995), is controlling. In Pope the court held that an amended guideline prescribing a revised method for calculating the weight of LSD did not affect the method for calculating the weight of the drug for purposes of the statutory mandatory minimum. Id. The Supreme Court, in a recent unanimous opinion, reached the same result as Pope. Neal v. United States, ___ U.S. ___, ___, 116 S.Ct. 763, 769, 133 L.Ed.2d 709 (1996). The Government argues that Pope dictates the outcome of this case.

The Court concludes that the differences in the two mandatory minimum statutes — 21 U.S.C. §§ 841(b)(1)(A)(v) and (b)(1)(B)(vii) — render the LSD cases inapposite. At issue in Pope was an amended guideline directing courts to disregard the weight of LSD/carrier medium in calculating the weight of the drug for the purposes of the guidelines' drug quantity table, and instead to treat each dose of LSD on the carrier medium as equal to .4 mg of LSD. U.S.S.G. § 2D1.1.(c) (1993) (as amended by U.S.S.G. amend. 488) ("Amendment 488"). The question before the Eleventh Circuit was how, if at all, the amended guideline's construction of the phrase "mixture or substance containing a detectable amount of LSD" should affect the calculation of weight under the statute governing mandatory minimum sentences, which used identical language. Complicating the issue was a Supreme Court holding, announced prior to the enactment of the amended guideline, interpreting the statute to require the inclusion of the entire weight of the carrier medium. Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). Because the phrase "mixture or substance" is not self-defining, the Supreme Court was required to decide in Neal which construction — the Supreme Court's in Chapman, or the Commission's in the amended guideline — courts should apply under the statute prescribing mandatory minimum sentences.

The relevant statute in this case, in contrast, is not ambiguous. It provides for a five-year term of imprisonment for any person convicted of an offense involving "100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight," (emphasis added), 21 U.S.C. § 841(b)(1)(B)(vii). Thus, the competing theories of interpretation available in the LSD context have no force here. United States v. Scholz, 907 F.Supp. 329, 332 (D.Nev.1995). Although the inconsistency between the amended guideline and the statute produces a seemingly arbitrary disparity and results in a dual system between the guidelines and the statute, Congress' acquiescence to the guideline cannot alter the explicit language of the statute, which imposes a mandatory minimum sentence for violations involving one hundred or more plants "regardless of weight." United States v. Mintz, 928 F.Supp. 1063 (D.Kan.1996) (applying guideline equivalency ratio for purposes of determining statutory minimum would ignore clear language of statute). The eradication of this anomaly requires Congressional action, not judicial legerdemain, to bring the statutory quantities into line with the guidelines. As stated in Scholz:

It may be true, as an empirical matter, that the one plant = one kilogram equivalency rating provided by the statute greatly exaggerates the drug-producing potential of an average marihuana plant. Nonetheless, the statutory language is crystal clear ... The phrase "regardless of weight" would, under the interpretation advanced in Defendant's Motion for Downward Departure, become meaningless.

Scholz, 907 F.Supp. at 332. See also United States v. Silvers, 84 F.3d 1317, 1325 (10th Cir.1996) (declining to resentence defendant under Amendment 516 where statutory minimum sentence would render amended guideline inoperative); United States v. Breen, 928 F.Supp. 977, 979-80 (D.Alaska 1996) (same); United States v. Mullanix, No. 96-374-FR, 1996 WL 172746 at *2 (D.Or. Apr. 1, 1996) (same); United States v. Guder, No. 96-3064-SAC, 1996 WL 172975 (D.Kan. March 19, 1996) (same); United States v. Brown, No. 95-CV-1675, 1996 WL 12025 (N.D.N.Y. Jan. 12, 1996) (same). Thus, to the extent that Defendant's motion relies on an argument that the amended guideline equivalency rates should inform the statutory mandatory minimum sentence, it must fail.

Defendant further argues, and the Government concedes, that this Court nonetheless has the authority to reduce the Defendant's sentence to the statutory minimum of sixty months under 18 U.S.C. § 3582(c)(2). Motion for Correction of Sentence, Nov. 20, 1995, at 3; Government's Resp. to Def.'s Mot. to Correct Sentence, Nov. 28, 1995, at 3-4. Defendant's position appears to proceed along the following lines: the new guidelines range for his offense level of sixteen, recalculated pursuant to Amendment 516, would be twenty-four to thirty months. Adding the ten month sentence for the failure to appear count, the resulting guideline range would be thirty-four to forty months, which falls short of the statutory minimum. The guidelines then require the substitution of the statutorily required minimum sentence. U.S.S.G. § 5G1.1(b) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence."); see also U.S.S.G. § 5G1.2(b) (referring court to § 5G1.1 to determine total punishment for sentences based on multiple counts). Therefore, Defendant contends, the Court may properly reduce the Defendant's sentence to sixty months notwithstanding the statutory command in 18 U.S.C. § 3146(b)(2) that "a term of imprisonment under this section shall be consecutive to the sentence of imprisonment for any other offense."

Although there is support in the Guidelines for this approach, particularly in the commentary to Guideline § 2J1.6, there is more compelling support for the proposition that the Court must substitute the statutory minimum applicable to the underlying offense for the corresponding guidelines range prior to adding the portion of the sentence attributable to the failure to appear count. The only judicial decision at all relevant to the issue supports the latter approach. United States v. Packer, 70 F.3d 357, 360 (5th Cir.1995), petition for cert. filed, (U.S. March 28, 1996) (No. 95-2002).

The Court recognizes that some provisions within the guidelines are consistent with the approach Defendant appears to espouse — that is, that courts should calculate the total punishment for both offenses before substituting the statutory minimum for the underlying offense. Section 1B1.1 of the Guidelines, entitled "Application Instructions,"...