US v. Scholz
| Decision Date | 22 November 1995 |
| Docket Number | No. CR-N-94-0075-ECR.,CR-N-94-0075-ECR. |
| Citation | 907 F. Supp. 329 |
| Parties | UNITED STATES of America, Plaintiff v. David Neel SCHOLZ, Defendant. |
| Court | U.S. District Court — District of Nevada |
COPYRIGHT MATERIAL OMITTED
Ronald C. Rachow, Asst. U.S. Atty., Reno, NV, for Plaintiff.
John W. Aebi, Aebi & McCarthy, Carson City, NV, for Defendant.
Defendant David Neel Scholz is presently before the court for sentencing. Defendant Scholz has pleaded guilty to violations of 21 U.S.C. §§ 841 and 846, admitting that he, along with his wife and brother, operated several marihuana manufacturing facilities in and around Reno, Nevada. Scholz's drug farms formed part of an extensive marihuana production and distribution network controlled by one William Hall.
The court must in sentencing Mr. Scholz address several issues. First is the effect of a recent amendment to the United States Sentencing Guidelines concerning the calculation of quantity in marihuana prosecutions. Second is the degree to which Scholz can be deemed a manager or leader of the illegal activities. Third is the question whether Scholz is entitled to a downward departure for substantial assistance despite the government's failure to move for such departure.
The Guideline Amendment in question, Amendment 516 to U.S.S.G. § 2D1.1(c), became effective November 1, 1995, and must be given full retroactive effect. U.S.S.G. § 1B1.10 (1994 & Amends.1995) (authorizing sentence reductions where guidelines are amended during defendant's term of imprisonment). The amendment purports to change the "equivalency" rating for marihuana offenses under 21 U.S.C. § 841(b)(1). The former guidelines tracked precisely the statutory equivalency rating of one marihuana plant = one kilogram of marihuana. U.S.S.G. § 2D1.1(c)(4) (1994); 21 U.S.C. § 841(b)(1)(A)(vii) (1994). The guideline amendment, however, reduces the equivalency to one plant = 0.1 kilogram (100 grams). Amend. 516 to U.S.S.G. § 2D1.1(c) (1995).
Defendant Scholz concedes that the marihuana farm he operated on Marla Street in Reno, Nevada contained more than 1,000 marihuana plants at the time of his arrest (Sentencing Memorandum and Motion for Departure, Doc. # 413, at 5). The Sentencing Guidelines' Drug Quantity Table which appears at U.S.S.G. § 2D1.1(c) provides a base offense level of 32 for violations of 21 U.S.C. § 841(b)(1)(A) ().
In his motion for downward departure, Defendant Scholz argues that Guideline Amendment 516 should operate to reduce his mandatory minimum sentence under the statute to 5 years under § 841(b)(1)(B). His argument would have this court apply the one plant = 0.1 kg equivalency rating, thereby reducing the amount of marihuana he has admitted producing from 1,000 kg to 100 kg. Defendant cites United States v. Muschik, 49 F.3d 512 (9th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3086 (U.S. July 25, 1995) (No. 95-156), as support for the proposition that because sentencing guideline amendments are sent to Congress for review before taking effect, that this court should "harmonize" the apparently conflicting statute and guideline.
Muschik's holding that the sentencing guideline amendment setting a uniform medium weight for LSD offenses under 21 U.S.C. 841(b)(1) does not conflict with the statutory per-gram measurement scheme rests on the unique nature of LSD offenses. LSD, unlike any other controlled substance, is sold by dose rather than by weight. The statutory per-gram measurement is exceedingly unhelpful in determining the amount of LSD involved; LSD is effective in infinitesimal amounts. The U.S. Supreme Court was forced to recognize this fact in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). The Court ruled that in LSD prosecutions under 21 U.S.C. § 841, the sentencing court must calculate the quantity of LSD involved by weighing not only the quantity of active drugs but also the medium on which the drug is transported. 500 U.S. at 468, 111 S.Ct. at 1929.
The Sentencing Guideline Commission sought to eliminate the potential for disparity in LSD sentences which would result from the fact that, under Chapman, an LSD dose deposited on a sugar cube would far outweigh the same dose carried on blotter paper. The Commission therefore adopted Amendment 488, the provision at issue in Muschik, which set a uniform medium weight to be included in the quantity calculus for LSD offenses. In so doing, the Commission was attempting to harmonize the per-gram statutory measurement with the Court's recognition in Chapman that at least some of the medium weight ought to be included in the measurement.
No such problems of weight and measurement inhere in prosecutions for marihuana offenses. 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. In convictions under 21 U.S.C. § 841(b)(1) involving 1,000 kilograms or more of marihuana, or 1,000 marihuana plants regardless of weight, the mandatory minimum prison sentence is 10 years. 21 U.S.C. § 841(b)(1)(A)(vii).
Therefore, if Defendant Scholz is sentenced under the statutory minimum, the court may not recalculate the amount of marihuana discovered in Defendant Scholz' possession by multiplying Amendment 516's 100-gram equivalency by the number of plants discovered in the Marla Street marihuana farm. To do so would be to ignore clear statutory language. The phrase "regardless of weight" would, under the interpretation advanced in Defendant's Motion for Downward Departure, become meaningless.
It is beyond question that where the language of a sentencing guideline conflicts with statutory language, the statute controls. U.S.S.G. § 5G1.1(b); United States v. Muschik, 49 F.3d 512, 515 (9th Cir.1995). Muschik, which attempted to resolve an ambiguity in the law created by the Supreme Court in Chapman, does not permit this court to ignore the "regardless of weight" language in the statute itself.
For these reasons, then, Defendant Scholz' argument that Muschik requires this court to find a violation of 21 U.S.C. § 841(b)(1)(B) () rather than § 841(b)(1)(A) () must be rejected.1
The necessity of finding Defendant Scholz's drug manufacturing violation to be within the 1,000 kilogram/1,000 marihuana plant penalty provision of the statute notwithstanding, Scholz may yet avoid the mandatory 10 year sentence by proving facts entitling him to sentencing under the guidelines, rather than under the statutory minimum. U.S.S.G. § 5C1.2.
U.S.S.G. § 5C1.2 requires the court to impose sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence upon finding the defendant to have met the criteria set out in 18 U.S.C. § 3553(f)(1) to (5). There are five requirements: (1) The defendant has no more than 1 criminal history point, (2) the offense did not involve violence, the credible threat thereof, or the possession of a firearm or dangerous weapon, (3) the offense did not result in death or serious bodily harm to anyone, (4) the defendant was not an organizer, leader, manager or supervisor of others and was not engaged in a continuing criminal enterprise, and (5) the defendant gave the government all the information and evidence in his possession regarding the offense. U.S.S.G. 5C1.2.
If, therefore, Defendant Scholz can prove the foregoing factual predicate, this court will then be required by U.S.S.G. § 5C1.2 to impose the guideline sentence. Under the recent amendment to U.S.S.G. 2D1.1(c), he would then be entitled to a sentence calculated under the 1 plant = 0.1 kilogram equivalency rating.
With respect to subparagraphs 1, 2, 3, and 5 of U.S.S.G. § 5C1.2, there appears little question but that Defendant Scholz satisfies these requirements. There is no prior criminal history, there was no violence associated with the offense, no weapons appear to be involved, and the defendant appears to have fully cooperated with the law enforcement authorities.
Subparagraph 4, on the other hand, raises a substantial question regarding Defendant Scholz' managerial status. The government has already sought to prove Scholz' managerial status; the Presentence Report in this case recommends a two-unit base offense level increase pursuant to U.S.S.G. § 3B1.1(c). Addendum to Presentence Report at 1. Application Note 5 to U.S.S.G. § 5C1.2 specifically incorporates U.S.S.G. § 3B1.1(c)'s definition of "organizer, leader," etc.
Our inquiry into Scholz' managerial status is thus identical for both purposes. It is important to note, however, that the Defendant is entitled to the benefit of any doubt as to his managerial status: Because there is no evidence that Scholz does not meet criteria 1, 2, 3, or 5 of § 5C1.2, he is entitled to a departure from the statutory minimum pursuant to U.S.S.G. § 5C1.2 if the government does not prove his managerial status under U.S.S.G. § 3B1.2(a) by a preponderance of the evidence. United States v. Hoac, 990 F.2d 1099, 1110 (9th Cir.1993); United States v. Mares-Molina, 913 F.2d 770, 772 (9th Cir.1990).
If, on the other hand, Scholz was a manager, then he is not entitled to avoid the statutory minimum under U.S.S.G. § 5C1.2, and he is subject to a two-unit base offense level increase under U.S.S.G. § 3B1.1(c).
To continue reading
Request your trial
-
US v. Emigh
...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 an......
-
US v. Mintz, Civil Action No. 91-40045-01-DES.
...the minimum sentence shall be five years. A. Applicable mandatory minimum sentence Like Mr. Mintz, the defendant in United States v. Scholz, 907 F.Supp. 329 (D.Nev. 1995), was convicted of possession with the intent to distribute more than 1,000 marijuana plants in violation of 21 U.S.C. § ......