The Supreme Court/The Supreme Court.iso/pc/ascii/misc/1p7169.za

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SUPREME COURT OF THE UNITED STATES
JAMES ARMIN FOWNER v. UNITED STATES
on petition for writ of certiorari to the united
states court of appeals for the tenth circuit
No. 91-7169.  Decided May 18, 1992

  The petition for a writ of certiorari is denied.

  Justice White, dissenting.
  This case presents the question whether the weight of
uningestible waste material should be included in calculat-
ing the weight of a -mixture or substance- containing a
detectable amount of a controlled substance for purposes of
2D1.1 of the U. S. Sentencing Guidelines.  The petitioner
was arrested in possession of 79.7 grams of methamphet-
amine, as well as approximately 24 gallons of a liquid
mixture containing detectable amounts of a controlled
substance.  At trial, an expert testified that the liquid was
a waste byproduct of methamphetamine manufacturing.
Petitioner claims that his sentence should not have been
based on the entire weight of the 24 gallons of liquid
because it is an uningestable waste.  In the decision below,
the Court of Appeals for the Tenth Circuit held that it was
unnecessary to make a determination whether the liquid
was waste and intended to be discarded.  Following Tenth
Circuit precedent, the Court of Appeals held that so long as
the liquid contained a detectable amount of a controlled
substance, its entire weight was properly included in the
calculation of the defendant's sentence under the Guide-
lines.  See also U. S. v. Dorrough, 927 F. 2d 498 (CA10
1991); U. S. v. Callihan, 915 F. 2d 1462, 1463 (CA10 1990).
  Several Courts of Appeals have followed a different
rationale, holding that sentencing calculations may not be
based on the total weight of mixtures containing un-
ingestable -waste- material.  In U. S. v. Rolande-Gabriel,
938 F. 2d 1231 (CA11 1991), the defendant had been
arrested in possession of a liquid substance containing
cocaine base, a cutting agent, and liquid waste.  The Court
of Appeals there noted that the liquid waste did not
facilitate the use, marketing or access of the drug, and
concluded that its use in sentencing calculations was
irrational.  937 F. 2d, at 1237.  The Court of Appeals
therefore held that the weight of unusable waste material
should not be used for sentencing purposes.  Similarly, in
U. S. v. Jennings, 945 F. 2d 129 (1991), the Court of
Appeals for the Sixth Circuit ruled that it would be inap-
propriate to sentence defendants on the basis of the entire
weight of an undistributable methamphetamine -cooking-
mixture containing a small amount of methamphetamine
mixed with poisonous unreacted chemicals and by-products.
See also U. S. v. Touby, 909 F. 2d 759, 773 (CA3 1990), aff'd
on other grounds, 500 U. S. ___ (1991) (suggesting that,
while weight of cutting ingredients may properly be
included in sentencing calculation,  weight of unconsumable
manufacturing by-products may not).
  Several other Courts of Appeals, like the court below,
have taken a contrary approach.  In U. S. v. Mahecha-
Onofre, 936 F. 2d 623 (CA1), cert denied, ___ U. S. ___
(1991), cocaine had been chemically bonded to the acrylic
material of which two suitcases were constructed.  When
calculating the defendant's sentence, the district court
included the total weight of the suitcases, minus all metal
parts.  936 F. 2d, at 625.  The Court of Appeals noted that,
unlike blotter paper or cutting agents, the suitcase material
obviously could not be consumed and that the cocaine had
to be separated from the suitcase material before it could be
used; however, the Court held, this distinction did not make
a difference for sentencing purposes.  Id., at 626.  Similarly,
in U. S. v. Beltran-Felix, 934 F. 2d 1075 (1991), cert denied,
___ U. S. ___ (1991), the Court of Appeals for the Ninth
Circuit held that, for purposes of sentencing under 21
U. S. C. 841(b)(1)(B), a solution containing amphetamine
need not be a -marketable mixture- in a distributable state.
In U. S. v. Baker, 883 F. 2d 13 (CA5 1989), the Court of
Appeals for the Fifth Circuit followed an analogous course.
Although most of a liquid containing methamphetamine
was waste material, the Court of Appeals upheld the use of
the weight of the whole solution for sentencing purposes.
Id., at 14, 15.
  The issue is a recurring one.  Because of the conflict,
identical conduct in violation of the same federal laws may
give rise to widely disparate sentences in different areas of
the country.  I would grant certiorari to resolve this conflict.