Supreme Court Agrees to Hear LSD Carrier Medium Case
On June 19, the Supreme Court agreed to hear a case involving sentencing of a defendant based on the total weight of LSD and the paper on which it was contained (57 CrL 3073; for case background, see "Court Strikes Down Guideline Reform; Rules that LSD Weight Plus Weight of Carrier Should Decide Sentence," NewsBriefs, March 1995; U.S. v. Neal, No. 94-1773, 46 F.3d 1405 (7th Cir. 1995)).
Meirl Gilbert Neal pleaded guilty on February 13, 1989 to conspiracy to distribute and possession with intent to distribute 11,456 doses of LSD (lysergic acid diethylamide). The weight of the LSD and the blotter paper on which the LSD was contained totalled 109.51 grams. Factoring in Neal's previous convictions for drunk driving, he was given a sentence of 188 to 235 months.
Neal was sentenced under the Anti-Drug Abuse Act of 1986, in which Congress established a weight-based sentencing scheme to target high-level drug traffickers. In that statute, Congress provided that drug sentences should be based on the total weight of a "mixture or substance" containing an illegal drug.
In the case of LSD, the statute prohibits distribution of a "mixture or substance containing a detectable amount" of LSD. The Supreme Court in Chapman v. U.S. (500 U.S. 453 (1991)) determined that "mixture or substance" included the blotter paper containing the drug.
Until 1993, the U.S. Sentencing Commission Sentencing Guidelines, the mandatory minimum provisions of the Controlled Substances Act, and the Court's ruling in Chapman were in agreement. Effective November 1, 1993, however, the Commission amended the Guidelines to assign an arbitrary 0.4 milligram per dose weight to LSD, regardless of the weight of the carrier medium. The Commission also provided that courts could apply the change retroactively.
The change in the Guidelines produced what has been referred to in the courts as the "dual sentencing" scheme. In LSD cases, courts must first determine the total weight of the LSD and the carrier medium to see if the amount is enough to trigger a mandatory minimum sentence. If the defendant does not qualify for the mandatory minimum, then the court must reevaluate the weight according to the presumptive weight-per-dose according to the Guidelines.
On December 10, 1993, Neal petitioned for a reduction in sentence because of the change in the Guidelines. A district court ruled to apply the Guideline change retroactively in Neal's case, which reduced the weight of the LSD to 4.58 grams. His sentencing range was reduced from the range of 188 to 235 months to a range of 70 to 87 months.
Notwithstanding that calculation, the district court ruled that it was required to follow the Supreme Court's ruling in Chapman and follow the mandatory minimum statute according to the total weight. Using this standard, it resentenced Neal to 120 months. Neal argued that the weight for determining whether a mandatory minimum sentence should be imposed should follow the Sentencing Commission weight-per-dose scheme, and appealed the ruling.
Neal argued that the total weight system mandated by Congress to determine mandatory minimum sentences in 1986 should not apply because Congress signaled its acceptance of the Commission Guideline change in 1993 by not acting to reject it. Changes to the Guidelines are usually sent to Congress on May 1 of every year. Congress must act on the changes before November 1, or the changes automatically go into effect.
Neal also argued that because of arbitrariness caused by the conflict between the Commission Guideline determination scheme and the total weight Congressional scheme, the court is required to follow the rule of lenity and apply the lower sentence.
The Court of Apeals for the Seventh Circuit found that even if it could overlook the Chapman ruling, the mandatory minimum scheme provided by Congress would still prevail over the Guidelines. Only in particular cases, provided for by Congress, would the Commission Guidelines prevail. In its Guideline change, the court ruled, the Commission acknowledged that it was creating a dual weight structure and that the Congressional scheme would prevail for the determination of mandatory minimum sentences. Further, the Court of Appeals found that the rule of lenity would not apply because there was no "absurd or glaringly unjust" consequence of the application of the mandatory minimum total weight scheme.
In a dissent, three judges wrote that the Guideline amendment is consistent with both Congressional mandate and Chapman because it factors in the weight of the carrier medium and was simply a "refinement of the earlier practice of weighing on an ad hoc basis whatever carrier the defendant happened to use." They also argued that Congress did approve the change in determining LSD weight by not acting on the Guideline change before it took effect.
[For a copy of this case, contact the National Drug Strategy Network office at 1899 L Street, NW, Suite 500, Washington, DC 20036, 202-835-9075, fax: 202-833-8561.]