BRIAN MICHAEL DALY, PETITIONER V. UNITED STATES OF AMERICA No. 89-6872 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. I) is reported at 883 F.2d 313. JURISDICTION The judgment of the court of appeals was entered on August 24, 1989. A petition for rehearing was denied on December 4, 1989 (Pet. App. II). The petition for a writ of certiorari was filed on March 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Sentencing Guidelines base offense level for the crime of conspiring to distribute lysergic acid diethylamide (LSD) is calculated by using the combined weight of both the LSD and the "blotter" paper that served as the carrier medium for the drug. 2. Whether the "street value" of LSD is a proper basis for a downward departure from the applicable Sentencing Guidelines range. STATEMENT Pursuant to a plea agreement, petitioner waived indictment and pleaded guilty in the United States District Court for the District of Maryland to a one-count information charging him with conspiring to possess and distribute lysergic acid diethylamide (LSD), in violation of 21 U.S.C. 846 and 841(a)(1). Petitioner was sentenced under the Sentencing Guidelines /1/ to 84 months' imprisonment, to be followed by a three-year term of supervised release. The court of appeals affirmed. 1. As part of the plea agreement, it was stipulated that petitioner was arrested in possession of 755.09 grams of paper impregnated with LSD that he intended to distribute, and that the weight of the crystal LSD from which the paper was prepared was approximately 2.33 grams. C.A. App. 8-9. In accordance with the directive in Guidelines Section 2D1.1 Drug Quantity Table n.*, that "the entire amount of the mixture or compound" that "contains any detectable amount of a controlled substance * * * shall be considered in measuring the quantity" of the drug involved, the district court calculated the base offense level for petitioner's offense in light of the 755-gram combined weight of the LSD and the medium paper. Since more than 100 grams of LSD was involved, petitioner's base offense level was level 36. The district court adjusted the offense level downward by two points to level 34 to account for petitioner's acceptance of responsibility. See Guidelines Section 3E1.1. Because he had no prior criminal history, petitioner was classified as a category I offender. The resulting Guidelines range indicated a term of 151-188 months' imprisonment. /2/ The district court departed below the indicated Guidelines range and imposed a sentence of 84 months' imprisonment. C.A. App. 138-139. The court did so because petitioner had cooperated with the government following his arrest and guilty plea; /3/ because, with the exception of some relatively minor drug offenses in his youth, petitioner did not have a serious prior criminal record; and because two related LSD traffickers operating in the area, both of whom were sentenced for crimes that occurred before the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. and 28 U.S.C. 991-998, became effective, had received sentences below the Guidelines range that applied to petitioner's case. C.A. App. 138-139. 2. The court of appeals affirmed petitioner's sentence. First, the court held "that, for the purposes of determining base offense levels under Section 2D1.1's Drug Quantity Table, LSD 'carrier mediums' constitute 'substance(s) containing a detectable amount' of the drug * * * and therefore must be 'included in calculating the drug's weight.'" Pet. App. I, at 317. As the court explained, its holding was in accord with the conclusion reached by other courts considering the same issue; it comported with the "plain language" of the Guidelines; and it treated LSD "carriers" in a manner that was consistent with the way that the Guidelines treat other "'cutting agents.'" Id. at 317-318. The court of appeals also held that the district court properly declined to depart downward in order to reflect the comparatively low "street value" that LSD had when compared with other controlled substances. Pet. App. I, at 319. ARGUMENT 1. Relying principally on the district court's decision in United States v. Healy, 729 F. Supp. 140 (D.D.C. 1990), appeal pending (D.C. Cir.), petitioner contends, Pet. 4-10, that the district court erred in calculating the offense level for his conduct based on the combined weight of the LSD and the blotter paper used as a carrier medium. Petitioner maintains that the court should have calculated his offense level based only on the 2.33 grams of pure LSD that he conspired to distribute, which would have resulted in a substantially lower sentence under the Guidelines. See page 3 note 2, supra. Petitioner's claim, however, is inconsistent with the plain language of the Guidelines and the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, from which the applicable Guidelines provision is drawn. Petitioner's claim also has been rejected by every court of appeals that has addressed this question. United States v. Bishop, 894 F.2d 981, 985-987 (8th Cir. 1990); United States v. Rose, 881 F.2d 386, 388, 389-390 (7th Cir. 1989); United States v. Taylor, 868 F.2d 125, 127-128 (5th Cir. 1989). Accord United States v. Marshall, 706 F. Supp. 650 (C.D. Ill. 1989); United States v. Bishop, 704 F. Supp. 910 (N.D. Iowa 1989), aff'd, 894 F.2d 981 (8th Cir. 1990). Cf. United States v. Butler, 895 F.2d 1016 (5th Cir. 1989) (statute and Guidelines required sentence based on total weight of 38 1/2 pound mixture that contained only small amount of methamphetamine); United States v. Baker, 883 F.2d 13 (5th Cir. 1989) (accord). Review by this Court is therefore unwarranted. In enacting the Anti-Drug Abuse Act of 1986, Congress provided a range of escalating penalties for persons who commit offenses involving increasing weights of any "mixture or substance containing a detectable amount of (LSD)." 21 U.S.C. 841(b)(1) (A)(v) & (B)(v). That formulation amended the prior law, which imposed penalties based only on the weight of LSD itself. 21 U.S.C. 841(b)(1)(A)(iv) (Supp. III 1982). The 1986 amendment therefore required sentencing courts to take into account the weight of any carrier medium when calculating the appropriate sentence for an LSD-related offense. United States v. McGeehan, 824 F.2d 677, 681 (8th Cir. 1987), cert. denied, 484 U.S. 1061 (1988). That amendment demonstrated that "Congress was aware of the differences between LSD and LSD combined with a carrier substance," ibid. -- a difference that was especially apparent to Congress, since in enacting the 1986 amendments Congress retained separate penalty ranges for offenses involving pure amounts of PCP and offenses involving "a mixture or substance containing a detectable amount of * * * PCP." 21 U.S.C. 841(b)(1)(A)(iv) and (B)(iv). See Pet. App. I, at 317-318. /4/ The Sentencing Commission used the same formulation in specifying the various offense levels under the Drug Quantity Table. As the Guidelines provide: "The scale amounts for all controlled substances refer to the total weight of the controlled substance. Consistent with the provisions of the Anti-Drug Abuse Act, if any mixture of a compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be considered in measuring the quantity." Guidelines Section 2D1.1(a)(3) Drug Quantity Table p. 2.39 n.* (Oct. 1987). /5/ See also id. p. 2.47 Application Note 10 ("The Commission has used the sentences provided in, and the equivalences derived from, the statute (21 U.S.C. Section 841(b)(1)), as the primary basis for the guideline sentences"). /6/ There is "no ambiguity" in the language of the statute or the Guidelines. Taylor, 868 F.2d at 127. /7/ As the court below correctly recognized, "determining sentences on the basis of the aggregate weight of the drug itself and the 'carrier medium' clearly comports with the 'plain language' of the Anti-Drug Abuse Act itself and Section 2D1.1 of the Guidelines, which expressly adopts that statute's 'mixture or substance' formulation as the benchmark for most drug quantity determinations." Pet. App. I, at 317. With respect to LSD-related offenses, blotter paper infused with LSD satisfies that definitional formulation, because the paper is unquestionably "a substance," i.e., "a distinguishable kind of physical matter," that contains a "detectable amount" of LSD. Bishop, 894 F.2d at 985 (citation omitted). Moreover, treating LSD mediums in that manner is consistent with the way that carrier mediums and cutting agents for other controlled substances are treated. "Drugs are rarely taken in undiluted form"; instead, "(t)he active agent is combined with inactive ones." Rose, 881 F.2d at 388. LSD is no exception. As has been noted, "(t)he pure chemical compound of LSD is extremely potent -- far too potent to be of any use to those who would ingest it. It is therefore necessary to dilute the solid LSD and convert it into an easily ingestible form." Bishop, 894 F.2d at 985 (quoting Marshall, 706 F. Supp. at 652). Tiny amounts of LSD must be infused onto a carrier medium -- customarily blotter paper or a sugar cube -- which is ingested along with the drug. See Bishop, 894 F.2d at 985; Rose, 881 F.2d at 388; Marshall, 706 F. Supp. at 652. Accordingly, as the court below recognized, "LSD 'carriers' serve precisely the same function as the more familiar 'cutting agents' which are typically used with other drugs -- and which are to be counted * * * in determination of sentences that are inherently dependent on the 'quantities of drugs involved.'" Pet. App. I, at 318. Since Congress certainly recognized that a carrier medium "serves the purpose of making the LSD ready for retail sale and ingestion," Congress "intended the weight of the carrier to be included" in calculating the weight of any "mixture or substance" containing a detectable amount of LSD. Bishop, 894 F.2d at 985. /8/ Petitioner seeks to avoid the plain language of the statute by arguing that it is irrational to include the weight of the carrier medium in calculating the weight of a substance containing a detectable amount of LSD since the weight of the substance -- and, hence, the indicated penalty range -- will vary greatly according to the weight of the carrier medium. It is the offender, however, who selects the carrier medium that will affect the potential length of his sentence. In any event "(a) lighter carrier than paper * * * is hard to imagine." Rose, 881 F.2d at 388. Due to its extremely high potency and dangerous effects, Congress in enacting the controlled substance statute and the Sentencing Commission in promulgating the Guidelines assigned severe penalty ranges for offenses involving relatively small amounts of LSD. That determination was not irrational. Ibid. The blotter paper in this case, impregnated with only 2.33 grams of crystal LSD, was sufficient to provide over 23,000 dosage units of LSD. See Guidelines Section 2D1.1 Dosage Equivalency Table (Jan. 15, 1988). /9/ In short, petitioner was precisely the kind of major LSD trafficker that both the statute and the Sentencing Guidelines sought to punish as severely as offenders who traffic in substantial quantities of heroin or cocaine. /10/ 2. Petitioner also contends that the district court should have departed below the Guidelines range based on the comparatively low "street value" of the LSD that he attempted to sell. Pet. 10-13. In petitioner's view, because he stood to realize only $12,000 from the sale of a quantity of LSD that placed him in level 36 under the Guidelines, he should not be treated as harshly as offenders who stand to make far higher profits from dealing in level 36 quantities of cocaine or heroin. That claim also does not warrant further review. /11/ Section 3553(b) of Title 18 authorizes courts to depart from the indicated Guidelines range only to account for factors "of a kind, or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." As the text of 21 U.S.C. 841 and Guidelines Section 2D1.1 indicate, Congress and the Sentencing Commission determined that the total weight of a substance containing a detectable amount of a controlled substance should be the determinative factor in setting the appropriate sentencing range. In so doing, Congress and the Sentencing Commission determined that relatively small amounts of LSD, due to that drug's potency and dangerousness, should be treated for sentencing purposes in the same manner as larger amounts of cocaine or heroin. See Bishop, 894 F.2d at 897 (number of doses irrelevant in setting penalty level); Rose, 881 F.2d at 389. Since both Congress and the Sentencing Commission fully considered the manner in which drug offenses should be calculated and the relative severity levels of different quantities of different drugs, the "street value" of LSD is not a proper basis for any departure from the Guidelines range. Accordingly, as the court below correctly held, Pet. App. I, at 319: It is obviously not for the sentencing court to reconfigure Section 2D1.1's Drug Quantity Table on th(e) basis (of "street value"). Doing so would necessarily require case-by-case revisitation of "quantity" and "purity" issues that are exhaustively covered by the Guidelines as presently constituted, hence an impermissible departure from the sentencing philosophy embodied in Section 2D1.1 and the Anti-Drug Abuse Act itself. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney MAY 1990 /1/ See United States Sentencing Comm'n, Guidelines Manual (Nov. 1, 1989) (Guidelines). /2/ By contrast, the Drug Quantity Table categorizes offenses involving between 1-3.9 grams of LSD as level 26 offenses. Thus, if only the weight of the pure LSD had been considered, together with the downward adjustment for acceptance of responsibility, petitioner's indicated sentencing range would have been 51-63 months' imprisonment. See Pet. App. I, at 315 & n.1. /3/ Pursuant to Guidelines Section 5K1.1, the government moved for a downward departure on that basis. C.A. App. 105. /4/ The House Judiciary Committee explained the rationale for Congress's decision to change the method by which most controlled substances were considered for sentencing purposes, from the pure weight of the controlled substance to the total weight of any "mixture or substance" containing a detectable amount of a proscribed drug: After consulting with a number of DEA agents and prosecutors about the distribution patterns for these various drugs, the Committee selected quantities of drugs which if possessed by an individual would likely be indicative of operating at such a high level. The Committee's statement of quantities is of mixtures, compounds or preparations that contain a detectable amount of the drug -- these are not necessarily quantities of pure substance. One result of this market-oriented approach is that the Committee has not generally related these quantities to the number of doses of the drug that might be present in a given sample. The quantity is based on the minimum quantity that might be controlled or directed by a trafficker in a high place in the processing and distribution chain. H.R. Rep. No. 845, Pt. I, 99th Cong., 2d Sess. 11-12 (1986). /5/ The reference in the footnote to a "mixture of a compound" appears to be a typographical error in view of the Commission's use of the phrase "mixture or compound" in the following clause and next sentence of the footnote (emphasis added). This is especially true since the Anti-Drug Abuse Act, on which the Guidelines provision is modeled, is framed in the disjunctive. /6/ The recent clarifying amendments to the Guidelines are to the same effect. The footnote now accompanying Section 2D1.1's Drug Quantity Table states: Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the higher offense level. In the case of a mixture or substance containing PCP or methamphetamine, use the offense level determined for the entire weight of the mixture or substance or the offense level determined by the weight of the pure PCP or methamphetamine, whichever is greater. Guidelines Section 2D1.1 Drug Quantity Table p. 2.45 n.* (Nov. 1, 1989). See also id. p. 2.46 Application Note 1 ("'Mixture or substance' as used in this guideline has the same meaning as in 21 U.S.C. Section 841"). /7/ Petitioner argues that the rule of lenity should be applied since it is unclear whether a carrier medium is a "substance" containing a detectable amount of LSD. Pet. 8. But the rule of lenity is a tie-breaker. It comes into play only when a criminal law remains ambiguous after its text and legislative history are considered; it neither allows the infusion of ambiguity where none exists nor entails a preference for treating wrongdoers leniently. See, e.g., Russello v. United States, 464 U.S. 16, 29 (1983); Albernaz v. United States, 450 U.S. 333, 342-343 (1981). Here, as every court of appeals to address the question has held, the language of the statute and the Guidelines plainly require inclusion of the weight of any carrier medium that contains a detectable amount of LSD, and the legislative history of the statute does not undermine that language in any way. There is no occasion to resort to the rule of lenity in such circumstances. /8/ Petitioner contends that, because LSD is sold by units rather than by weight, "(s)praying LSD on blotter paper does not increase the supply available to the distributor or increase the supplier's profits." Pet. 7 n.1. However, as the various courts of appeals have properly recognized, spraying LSD on a carrier medium is indispensable to the distribution and ingestion of LSD, no less so than using chemical cutting agents to ready other drugs for distribution. Such a construction is consistent with the legislative history of the Anti-Drug Abuse Act, see page 6 note 4, supra, that expressly rejected a dosage approach to computing penalty ranges. It is also consistent with the directive in the Guidelines that makes the number of doses relevant for penalty purposes only when the weight of the controlled substance is unknown. See Bishop, 894 F.2d at 987. /9/ Petitioner is off by a magnitude of one thousand in suggesting, Pet. 7, that each gram of LSD produces only ten dosage units and, by extension, that the LSD that he possessed would only have yielded 23 dosage units. As the Dosage Equivalency Table instead indicates, a dosage unit of LSD contains only .0001 gram of LSD, so there are 10,000 dosage units in 1 gram of liquid LSD. Bishop, 894 F.2d at 984. Thus, the 2.33 grams of LSD that petitioner possessed was sufficient to yield in excess of 23,000 "hits" of LSD. /10/ As petitioner notes, Pet. 5-6, the Technical Assistance Service of the Sentencing Commission has issued an informal document in which it was noted that "the Commission has not addressed the issue" whether the weight of "blotter paper or sugar cubes in which LSD or some other controlled substance has been absorbed" should be included in calculating the total weight of a controlled substance. Questions Most Frequently Asked About the Sentencing Guidelines Question 29 (Nov. 23, 1988), reprinted at T. Hutchison & D. Yellen, Federal Sentencing Law and Practice Supplementary Appendices App. 4, at 141 (1989). That document, however, does not assist petitioner. The document states that it "is not commentary" and "does not necessarily represent the official position of the Commission, should not be considered as definitive, and is not binding upon the Commission, the court, or the parties in any case." Id. at pp. 133-134. In addition, with respect to the question whether carrier mediums should be counted in calculating the total weight of a controlled substance, the document states that "the court may have to make a determination." Id. at 141. The courts of appeals have done so, and all have agreed on the answer. /11/ The district court did substantially depart downward from the Guidelines range; petitioner argues that he was entitled to an even greater departure. It is not clear that such a claim is reviewable. See, e.g., United States v. Evidente, 894 F.2d 1000, 1003 (8th Cir. 1990). In any event, there is no merit to petitioner's claim.