TIMOTHY JOHN DEAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6394 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 Seventh Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals (Pet. App. A) is reported at 908 F.2d 215. JURISDICTION The judgment of the court of appeals was entered on July 27, 1990. The petition for a writ of certiorari was filed on October 24, 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 On January 18, 1989, a four-count indictment was returned in the United States District Court for the Western District of Wisconsin charging petitioner with distributing lysergic acid diethylamide (LSD), in violation of 21 U.S.C. 841(a)(1) (Counts 2 and 4), and with using the mails to facilitate a drug offense, in violation of 21 U.S.C. 843(b) (Counts 1 and 3). Pursuant to a plea agreement, petitioner thereafter pleaded guilty to the distribution charged in Count 4; in return, the government agreed to dismiss the remaining charges and to file a motion allowing the court to sentence petitioner below the minimum statutory and Guidelines ranges to account for his substantial assistance to the government. See 18 U.S.C. 3553(e); Sentencing Guidelines Section 5K1.1. Petitioner was sentenced to a term of six years' imprisonment, to be followed by an eight-year term of supervised release. The court of appeals affirmed. Pet. App. A. 1. The facts are not in dispute. Postal inspectors placed a mail cover on a residence occupied by William Meihack and Olympia Poulos in Minocqua, Wisconsin. On October 17, 1988, a postal inspector made a controlled delivery to that residence of a parcel of mail bearing petitioner's return address. Following the controlled delivery, law enforcement officers executed a search warrant for the residence and recovered blotter paper impregnated with 198 "hits" of LSD. The combined weight of the LSD and the blotter paper used as the carrier medium was 1.09 grams. Poulos and Meihack subsequently admitted that they had ordered the LSD from petitioner and that they had received it through the mail. After his arrest, petitioner similarly admitted that he had mailed the LSD to Poulos and Meihack. 2. The district court calculated the sentencing range for petitioner's offense in light of the 1.09-gram combined weight of the LSD and the medium paper involved in the offense to which petitioner pleaded guilty. Thus, because petitioner's offense involved "1 gram or more of a mixture or substance containing a detectable amount of (LSD)" and because petitioner was a recidivist drug offender, 21 U.S.C. 841(b)(1)(B)(v) required the imposition of a mandatory minimum sentence of ten years' imprisonment and authorized the imposition of a maximum sentence of life imprisonment. The total weight of the "mixture or substance containing a detectable amount of (LSD)" also affected the sentencing range available under the Sentencing Guidelines. Because "the instant offense of conviction (wa)s a felony that (wa)s * * * a controlled substance offense," and because petitioner had "at least two prior felony convictions of * * * a controlled substance offense," petitioner was subject to the enhanced penalty provisions of Sentencing Guidelines Section 4B1.1 as a "career offender." /1/ Based on petitioner's maximum liability of life imprisonment under Section 841(b)(1)(B)(v) -- which depended, in part, on the weight of the "mixture or substance" containing LSD -- petitioner's offense level was set at level 37 under the "career offender" Guideline. As in the case of all "career offenders," petitioner's criminal history score was automatically set at category VI. The resulting penalty range under the Sentencing Guidelines was therefore a term of 360 months to life imprisonment. Had the weight of the pure LSD alone been considered, petitioner would not have been liable to a mandatory minimum sentence and his base offense level under the Guidelines' "career offender" provision would have been three levels lower. /2/ As provided in the plea agreement, the government made a motion pursuant to Section 3553(e) and Sentencing Guidelines Section 5K1.1 urging the court to depart below both the Guidelines range and the statutory mandatory minimum in imposing sentence in order to reflect the substantial assistance that petitioner had provided to the government. Pet. C.A. App. 12. The district court thereafter agreed to depart below the minimum levels set by statute and the Sentencing Guidelines "because of the government's motion based on (petitioner's) substantial assistance" and because of the court's belief that petitioner was "not as culpable as some others who deal in LSD." Id. at 15. Accordingly, the court sentenced petitioner to a term of six years' imprisonment, to be followed by an eight-year term of supervised release. Id. at 17. 3. The court of appeals affirmed petitioner's sentence. Pet. App. A. /3/ In pertinent part, the court held that it "was not unconstitutional" for the sentencing judge "to count the weight of the blotter paper as part of the 'mixture or substance'" containing a detectable amount of LSD. Id. at 6. ARGUMENT Petitioner contends that the sentencing judge erred in calculating the sentencing range for his conduct based upon the combined weight of the LSD and the blotter paper that was used as a carrier medium. Petitioner argues that such a result is contrary to the intent of the federal drug statute and the Sentencing Guidelines (Pet. 9-14) and would be unconstitutionally arbitrary even if it were intended (Pet. 4-8). The question whether the combined weight of LSD and the blotter paper that is used as a carrier medium may be considered in determining the weight of LSD for sentencing purposes is currently pending before this Court in Chapman v. United States, cert. granted, No. 90-5744 (Dec. 10, 1990). This case is likely to be affected by the Court's disposition of Chapman. The petition should therefore be held pending this Court's decision in Chapman and then disposed of accordingly. CONCLUSION The petition for a writ of certiorari should be held pending the decision in Chapman v. United States, No. 90-5744. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General ROBERT J. ERICKSON Attorney JANUARY 1991 /1/ Petitioner had three prior felony convictions for felonies involving the trafficking in marijuana or cocaine. /2/ Under 21 U.S.C. 841(b)(1)(C), recidivist drug offenders who are convicted of a new offense involving less than one gram of LSD are subject to a maximum punishment of 30 years' imprisonment. In turn, offenses having a maximum penalty of more than 25 years' imprisonment, but less than life, are treated as level 34 offenses under the "career offender" Guideline. /3/ Under the terms of the plea agreement, both parties reserved the right to challenge on appeal any sentence that was imposed.