Second Circuit Rules LSD 0.4 mg/dose Formula Inapplicable to Mandatory Sentencing

IN THE COURTS November 1995

A majority of the Second Circuit U.S. Court of Appeals ruled on August 16 that the U.S. Sentencing Commission's 0.4 mg/dose weight assignment for applying the Sentencing Guidelines does not apply to mandatory minimum sentence determinations (U.S. v. Kinder, No. 94-1333, 57 CrL 1526, 64 F.3d 757 (2nd Cir. 1995)).

As was reported in previous issues of NewsBriefs, the U.S. Sentencing Commission amended the Guidelines in November 1993 to assign an arbitrary weight of 0.4 mg per dose for determining sentences under the Guidelines. Before the amendment, sentences were determined by the total weight of the LSD and the carrier medium. This "total weight" scheme is still used to determine mandatory minimums in most circuits, and was supported by the U.S. Supreme Court in Chapman v. U.S., 500 U.S. 453 (1991).

The Second Circuit ruled that mandatory minimum sentences must be based on the total weight of the LSD and the carrier medium. The court did note that a disparity is created in the differential application of the Guidelines and the mandatory minimum sentences, but said either Congress or the Supreme Court would need to act to correct it.

One judge, Pierre N. Leval, dissented from the ruling, writing that the disparity is "absurd." Although courts have no power to change either Chapman or the statutes, he wrote, there is no explicit prohibition preventing courts from adopting the 0.4 mg/dose scheme.

The First and the Seventh Circuits have also ruled that the Commission's weight scheme cannot be applied to mandatory sentences (U.S. v. Boot, 25 F.3d 52, 55 CrL 1257 (1st Cir. 1994); U.S. v. Neal, 46 F.3d 1405, 56 CrL 1435 (7th Cir. (en banc) 1995), cert granted 63 USLW 3889, 57 CrL 3073, June 19, 1995). The Third and the Sixth Circuits have expressed agreement with the Commission's weight per dose scheme, but have ruled that they do not have the power to override Chapman (U.S. v. Hanlin, No. 94-3498, 48 F.3d 121 (3rd Cir. 1995); U.S. v. Andress, No. 94-5495, 47 F.3d 839 (6th Cir. 1995)). Only the Ninth Circuit has ruled that courts can use the Commission's weight determination for both the Guideline and mandatory minimum sentences (U.S. v. Muschik, 49 F.3d 512, 56 CrL 1520 (9th Cir. 1995)). The Ninth Circuit found that rather than "overriding" Chapman, Amendment 488 simply "standardizes" how "mixture or substance" might be interpreted by courts. The Eighth Circuit issued an opinion in U.S. v. Stoneking similar to the Ninth Circuit's ruling, but it was vacated and is pending appeal (34 F.3d 651, 55 CrL 1554 (2nd Cir. 1994)).

The Supreme Court has agreed to hear cases from the Seventh and Ninth Circuits this term testing the application of Amendment 488 to mandatory minimum sentences, U.S. v. Neal and U.S. v. Muschik. Arguments in Neal are scheduled for December (for more information about Neal and the LSD sentencing controversy, see "Supreme Court Agrees to Hear LSD Carrier Medium Case," NewsBriefs, September 1995; "Court Strikes Down Guideline Reform, Rules that LSD Weight Plus Weight of Carrier Should Decide Sentence," NewsBriefs, March 1995).