CHARLES LARSEN, ET AL., PETITIONERS V. UNITED STATES OF AMERICA No. 90-5509 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A) is reported at 904 F.2d 562. JURISDICTION The judgment of the court of appeals was entered on June 4, 1990. The petition for a writ of certiorari was filed on August 21, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, in determining the weight of lysergic acid diethylamide (LSD) for sentencing purposes, the court correctly considered the combined weight of the LSD and the blotter paper used as a carrier medium for the drug. STATEMENT Petitioners pleaded guilty in the United States District Court for the District of Wyoming to a single count of distributing lysergic acid diethylamide (LSD), in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. Petitioner Larsen was sentenced to a term of ten years' imprisonment, to be followed by a eight-year term of supervised release. Petitioner Brennan was sentenced to a term of five years' imprisonment, to be followed by a four-year term of supervised release. The court of appeals affirmed. 1. On September 18, 1987, a five-count indictment was returned in the District of Wyoming charging petitioners and others with conspiracy to distribute LSD (Count I) and distribution of LSD (Counts II-V). Petitioners thereafter pleaded guilty to Count III of the indictment. That court charged that, on May 21, 1987, petitioners sold 200 dosage units of blotter paper impregnated with LSD to an undercover officer. The weight of the LSD-imbedded paper totalled 1.22 grams; however, the weight of pure LSD from which the paper was prepared was less than one gram. In accordance with the directive in 21 U.S.C. 841(b)(1)(B)(v) that a mandatory minimum penalty applies to offenses involving "1 gram or more of a mixture or substance containing a detectable amount of (LSD)," the district court relied on the 1.22-gram combined weight of the LSD and the medium paper and found that Section 841(b)(1)(B)'s mandatory minimum sentencing provisions were triggered. The court therefore sentenced petitioner Brennan to the mandatory minimum five-year term of imprisonment provided in the statute for offenses involving more than one gram of LSD. /1/ The court sentenced petitioner Larsen to a mandatory minimum ten-year term of imprisonment, because Larsen had a prior drug conviction that doubled the minimum penalty applicable to offenses involving more than one gram of LSD. 2. The court of appeals affirmed petitioners' sentences. Pet. App. A1-A4. In accord with the conclusion reached by other courts of appeals considering the same issue, the court of appeals held that LSD carrier mediums -- especially blotter paper, which is "one of the least weighty" and "most commonly used carrier mediums for LSD" -- constitute "mixture(s) or substance(s) containing a detectable amount" of the drug and therefore must be included in calculating the drug's weight. Id. at A3-A4. As the court stated, "Congress knew that distributors like (petitioners) would be faced with the enhanced sentencing provision and intended it to apply in circumstances like th(ose) before us." Id. at A4. ARGUMENT Relying principally on the decision in United States v. Healy, 729 F. Supp. 140 (D.D.C. 1990), appeal pending, petitioners contend that the sentencing judge erred in relying upon the combined weight of the LSD and the blotter paper used as a carrier medium in determining that they were liable to the mandatory minimum penalty provisions contained in 21 U.S.C. 841(b)(1)(B). Pet. 4-13. Petitioners argue that such a result is contrary to the intended meaning of the Act and, in any event, would be unconstitutionally arbitrary even if it were intended. Petitioners' claim is contrary to the plain language of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207. Moreover, petitioners' claim has been rejected by every court of appeals (six in all) that has considered this question. See United States v. Marshall, 908 F.2d 1312 (7th Cir. 1990) (en banc), petition for cert. pending sub nom. Chapman v. United States, No. 90-5744; United States v. Elrod, 898 F.2d 60 (6th Cir. 1990); United States v. Bishop, 894 F.2d 981, 985-987 (8th Cir. 1990); United States v. Daly, 883 F.2d 313, 316-318 (4th Cir. 1989), cert. denied, 110 S. Ct. 2622 (1990); 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), aff'd, 908 F.2d 1312 (7th Cir. 1990) (en banc); United States v. Bishop, 704 F. Supp. 910 (N.D. Iowa 1989), aff'd, 894 F.2d 981 (8th Cir. 1990). This Court recently declined to review the same claim in Daly v. United States, certiorari denied, 110 S.Ct. 2622 (1990). No different result is warranted here. /2/ Finally, for the reasons given in our brief in opposition in Chapman v. United States, No. 90-5744 (a copy of which has been provided to petitioners), there is no merit to petitioners' arguments. Accordingly, petitioners' claim does not warrant review by this Court. /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General ROBERT J. ERICKSON Attorney NOVEMBER 1990 /1/ Petitioners' offense occurred before the date that the Sentencing Guidelines became effective. Their claim, therefore, is directed entirely at the "mixture or substance" language contained in 21 U.S.C. 841. We note that, like the federal drug statute, United States Sentencing Comm'n Guidelines Manual Section 2D1.1 Drug Quantity Table n.* (1990) directs 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 for purposes of sentencing under the Guidelines. /2/ The same claim is pending before the Court in Follett v. United States, No. 90-590 (filed Oct. 3, 1990), Chapman v. United States, No. 90-5744 (filed Sept. 17, 1990), and Bolton v. United States, No. 90-5624 (filed Sept. 4, 1990). /3/ Although the Sentencing Guidelines are not applicable to this case, petitioners note, Pet. 6, that, in interpreting language similar to that contained in Section 841(b), staff members of the Sentencing Commission have stated that, for purposes of calculating sentencing ranges under the Guidelines, "packaging materials" are not "part of the controlled substance mixture." Petitioners further assert that those comments "implicity acknowledge() that blotter paper can be viewed as a packaging material." Pet. 6. The document petitioners cite neither supports their position nor has any legal significance. The Technical Assistance Service of the Sentencing Commission has issued an informal document in which it 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 controlled substance. See Questions Most Frequently Asked About the Sentencing Guidelines Question 29, reprinted at T. Hutchison & D. Yellen, Federal Sentencing Law and Practice, Supp. App. 4, at 141 (1989) ed.). That document states, however, 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 133-134. In addition, with respect to the question whether carrier mediums should be counted in calculating the total weight of a controlled substance, that document states that "the courts may have to make a determination." Id. at 141. The courts of appeals have done so, and all agree on the answer.