HaCKeRz KrOnIcKLeZ 3/HaCKeRz_KrOnIcKLeZ.iso/drugs/lsd.supreme-court

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  CHAPMAN ET AL. v. UNITED STATES
 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
 THE SEVENTH CIRCUIT
 No. 90-5744. Argued March 26, 1991 -- Decided May 30,
 1991
 A pure dose of the hallucinogenic drug LSD is so small that
it must be sold to retail customers in a ``carrier'' created by
dissolving pure LSD and, inter alia, spraying the resulting
solution on paper. That paper is then cut into ``one-dose''
squares, which users swallow, lick, or drop into a beverage to
release the drug. Petitioners were convicted in the District
Court of selling 10 sheets (1,000 doses) of blotter paper con-
taining LSD, in violation of 21 U. S. C. 841(a). Section
841(b)(1)(B) calls for a5-year mandatory minimum sentence
for the offense of distributing more than one gram of ``a
mixture or substance containing a detectable amount'' of
LSD. Although petitioners' pure LSD weighed only 50 mil-
ligrams, the court included the total weight of the paper and
LSD, 5.7 grams, in calculating their sentences, thus requiring
the impositionof the mandatory minimum sentence. The 5.7
grams was also usedto determine the base offense level
under the United States Sentenc-ing Commission Guidelines
Manual (Sentencing Guidelines). The Court of Appeals
affirmed, rejecting petitioners' arguments that the carrier
medium's weight should not be included for sentencing pur-
poses, and, alternatively, that construing the statute and the
Sentencing Guide-lines to require the carrier medium's inclu-
sion would violate the right to equal protection incorporated
in the Due Process Clause of the Fifth Amendment.
 Held:

 1. The statute requires the weight of the carrier medium to
be in-cluded when determining the appropriate sentencing
for trafficking in LSD. Pp. 3-9.

 (a) Since the statute refers to a ``mixture or substance
containing a detectable amount,'' the entire mixture or sub-
stance is to be weighed when calculating the sentence. This
reading is supported by the history of Congress' attempts to
control illegal drug distribution and by the stat-ute's struc-
ture. Congress knew how to indicate that the weight of a
pure drug was to be used to determine a sentence, having
done so with respect to PCP and methamphetamine by pro-
viding for a mandatory minimum sentence based either on
the weight of the mixture or sub-stance containing a detect-
able amount of the drugs, or on lower weights of the pure
drugs. And Congress clearly intended the dilutant, cutting
agent, or carrier medium of heroin and cocaine to be includ-
ed in those drugs' weight for sentencing purposes. Pp. 3-7.

 (b) The blotter paper used here, and blotter paper cus-
tomarily used to distribute LSD, is a ``mixture or substance
containing a detectable amount'' of LSD. Since neither the
statute nor the Sentencing Guide-lines define ``mixture,''
and it has no established common law meaning, it must be
given its ordinary meaning, see Moskal v. United States, 498
U. S. ---, ---, which is ``a portion of matter consisting of two
or more components . . . that however thoroughly commin-
gled are regarded as retaining a separate existence,''
Webster's Third New International Dic-tionary. The LSD
crystals left behind when the solvent evaporates are inside of
the paper, so they are commingled with it, but the LSD does
not chemically combine with the paper and, thus, retains a
separate ex-istence. Using the dictionary definition would
not allow the clause to be interpreted to include LSD in a
bottle or in a car, since, unlike blotter paper, those con-
tainers are easily distinguished and separated from LSD. Nor
is there a reason to resort to the rule of lenity to construe
the statute in petitioners' favor, since a straightforward read-
ing of 841(b) does not produce a result so absurd or glaring-
ly unjust as to raise a rea-sonable doubt about Congress' in-
tent. Pp. 7-9.

 2. This statutory construction is not unconstitutional.
Determining the lengths of sentences in accordance with the
LSD carrier's weight is not arbitrary and, thus, does not
violate due process. The penalty scheme is intended to pun-
ish severely large-volume drug traffickers at any level, and it
increases the penalty for such persons by measuring the
quantity of the drugs according to their street weight in the
diluted form in which they are sold, not their active
component's net weight. Thus, it was rational for Congress
to set penalties based on the weight of blotter paper, the
chosen tool of the trade for those trafficking in LSD.
Congress was also justified in seeking to avoid arguments
about the accurate weight of pure drugs which might have
been extracted from the paper if it had chosen to calibrate
sentences according to that weight. And, since the paper
seems to be the carrier of choice, the vast majority of cases
will do exactly what the sentencing scheme was designed to
do -- punish more heavily those who deal in larger amounts
of drugs. That distributors with varying degrees of culpabili-
ty might be subject to the same sentence does not mean that
the penalty system for LSD distribu-tion violates due pro-
cess. Moreover, the fact that there may be plausi-ble argu-
ments against describing blotter paper impregnated with LSD
as a ``mixture or substance'' containing LSD does not mean
that the stat-ute is unconstitutionally vague, especially since
any debate would center around the appropriate sentence,
not the conduct's criminality, and since all but one of the
courts that have decided the issue have held that the carrier
medium's weight must be included in determining the
appropri-ate sentence. Pp. 10-14.
 908 F. 2d 1312, affirmed.


 CHAPMAN v. UNITED STATES

 Syllabus 107

 REHNQUIST, C. J., delivered the opinion of the Court, in
which WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY,
and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opin-
 ion, in whic h MARSHALL, J., joined.
 --   [rbj@uunet 1] stty sane   unk-
nown mode: sane



SUPREME COURT OF THE UNITED

 90-5744 -- DISSENT

 CHAPMAN v. UNITED STATES 131

 STATES

  No. 90-5744



  RICHARD L. CHAPMAN, JOHN M. SCHOENECKER
 AND PATRICK BRUMM, PETITIONERS v.
 UNITED STATES
  ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE SEVENTH CIRCUIT

  [May 30, 1991]


 JUSTICE STEVENS, with whom JUSTICE MARSHALL joins,
dissenting.

 The consequences of the majority's construction of 21 U.
S. C. 841 are so bizarre that I cannot believe they were in-
tended by Congress. Neither the ambiguous language of the
statute, nor its sparse legislative history, supports the in-
terpretation reached by the majority today. Indeed, the
majority's construction of the statute will necessarily produce
sentences that are so anomalous that they will undermine the
very uniformity that Congress sought to achieve when it
adopted the Sentencing Guidelines.

 This was the conclusion reached by five Circuit judges in
their two opinions dissenting from the holding of the majori-
ty of the Court of Appeals for the Seventh Circuit sitting en
banc in this case.

 ***BEGIN FOOTNOTE 16***
 ``[T]he use of sentencing guidelines and policy statements
will assure that each sentence is fair as compared to all other
sentences.'' Ibid.
***END FOOTNOTE 16***

In one of the dissenting opinions, Judge Cummings pointed
out that there is no evidence that Con-gress intended the
weight of the carrier to be considered in the sentence deter-
mination in LSD cases, and that there is good reason to be-
lieve Congress was unaware of the inequita-ble consequences
of the Court's interpretation of the statute. United States v.
Marshall, 908 F. 2d 1312, 1327-1328 (CA7 1990). As Judge
Posner noted in the other dissenting opin-ion, the severity of
the sentences in LSD cases would be com-parable to those in
other drug cases only if the weight of the LSD carrier were
disregarded. Id., at 1335.

 If we begin with the language of the statute,

 ***BEGIN FOOTNOTE 2***
 See United States v. Turkette, 452 U. S. 576, 580 (1981) (``In
determin-ing the scope of a statute, we look first to its
language'').
***END FOOTNOTE 2***

 as did those judges who dissented from the Seventh
Circuit's en banc de-cision, it becomes immediately apparent
that the phrase ``mixture or substance'' is far from clear. As
the majority notes, neither the statute

 ***BEGIN FOOTNOTE 3***
 The statutory definitional section applicable to 841, 21 U. S.
C. 802, does not define ``mixture or substance.''
***END FOOTNOTE 3***

 nor the Sentencing Guidelines

 ***BEGIN FOOTNOTE 4***
 The Guidelines merely provide that ``[u]nless otherwise
specified, the weight of a controlled substance set forth in
the [offense level] table refers to the entire weight of any
mixture or substance containing a detectable amount of the
controlled substance.'' U. S. Sentencing Comm'n, Federal
Sentencing Guidelines Manual 2.47 (1991).
***END FOOTNOTE 4***

define the terms ``mixture'' or ``substance.'' Ante, at 7. The
majority initially resists identifying the LSD and carrier as ei-
ther a mixture or a substance; instead, it simply refers to the
combination, using the language of the statute, as a ``mix-
ture or substance containing a detectable amount of the
drug.'' See ante, at 4, 5, 6, 7. Eventually, however, the ma-
jority does identify the combination as a mixture: ``After the
solvent evaporates, the LSD is left behind in a form that can
be said to `mix' with the paper. The LSD crystals are inside
the paper, so that they are commingled with it, but the LSD
does not chemically combine with the paper.'' Ante, at 8.

 ***BEGIN FOOTNOTE 5***
 The majority of the Seventh Circuit also identified the com-
bination as a ``mixture,'' see 908 F. 2d, at 1317-1318; how-
ever, other Circuits that have addressed the question have
either identified the combination as a sub-stance, see, e. g.,
United States v. Bishop, 894 F. 2d 981, 986 (CA8 1990); Unit-
ed States v. Daley, 883 F. 2d 313, 317 (CA4 1989); United
States v. Taylor, 868 F. 2d 125, 127 (CA5 1989), or have
simply held that the com-bination fell within the statutory
language of a ``mixture or substance,'' without distinguishing
between the two. See, e. g., United States v. Elrod, 898 F. 2d
60, 61 (CA6 1990); United States v. Larsen, 904 F. 2d 562,
563 (CA10 1990).
***END FOOTNOTE 5***

Although it is true that ink which is absorbed by a blot-ter
``can be said to `mix' with the paper,'' ibid., I would not
describe a used blotter as a ``mixture'' of ink and paper. So
here, I do not believe the word ``mixture'' comfortably de-
scribes the relatively large blotter which carries the grains of
LSD that adhere to its surface.

 ***BEGIN FOOTNOTE 6***
 The point that the ``mixture or substance'' language remains
ambiguous is highlighted by the Sentencing Commission's
own desire to clarify the meaning of the terms. A Sentenc-
ing Commission Notice, issued on March 3, 1989, invited
public comment on whether the Commission should exclude
the weight of the carrier for sentencing purposes in LSD
cases. A section in the Guidelines Manual, entitled ``Ques-
tions Most Frequently Asked About the Sentencing Guide-
lines,'' contains a question about the ``mixture or substance''
language, which reflects the Commission's continuing uncer-
tainty as to whether the blotter paper should be weighed:

  With respect to blotter paper, sugar cubes, or other
 mediums on which LSD or other controlled substances
 may be absorbed, the Commission has not definitively
 stated whether the carrier medium is considered part of
 a drug `mixture or substance' for guideline application
 purposes. In order to ensure consistency between the
 guidelines and the statute, Application Note 1 to 2D1.1
 states that the term `mixture or substance' has the same
 meaning for guideline purposes as in 21 U. S. C. 841.
 Thus, the court must determine whether, under this sta-
 tute, LSD carrier medium would be considered part of
 an LSD mixture or substance. To date, all circuit courts
 that have addressed the issue appear to be answering the
 question affirmatively.'' Federal Sentencing Guidelines
 Manual, supra, at 599.
***END FOOTNOTE 6***

 Because I do not believe that the term ``mixture'' encom-
passes the LSD and carrier at issue here, and because I, like
the majority, do not think that the term ``substance'' de-
scribes the combination any more accurately, I turn to the
legislative history to see if it provides any guidance as to
con-gressional intent or purpose. As the Seventh Circuit
ob-served, the legislative history is sparse, and the only
refer-ence to LSD in the debates preceding the passage of
the 1986 amendments to 841 was a reference that addresses
neither quantities nor weights of drugs. 908 F. 2d, at 1327;
see also 132 Cong. Rec. S14030 (Sept. 27, 1986) (statement
of Sen. Harkin).

 Perhaps more telling in this case is the subsequent legisla-
tive history.

 ***BEGIN FOOTNOTE 7***
 Of course subsequent legislative history is generally not
relevant and always must be used with care in interpreting
enacted legislation. Com-pare Sullivan v. Finkelstein, 496 U.
S. --- , --- , n. 8 (1990) (slip op., at 10-11, n. 8), with id., at
--- (slip op., at 1-2) (SCALIA, J., concurring in part). It can,
however, provide evidence that an effect of a statute was
simply overlooked.
***END FOOTNOTE 7***

In a letter to Senator Joseph R. Biden, Jr., dated April 26,
1989, the Chairman of the Sentencing Com-mission, William
W. Wilkens, Jr., commented on the ambigu-ity of the sta-
tute:


 `With respect to LSD, it is unclear whether Congress in-
 tended the carrier to be considered as a packaging ma-
 terial, or, since it is commonly consumed along with the
 illicit drug, as a dilutant ingredient in the drug mix-ture.
 . . . The Commission suggests that Congress may wish
 to further consider the LSD carrier issue in order to clar-
 ify legislative intent as to whether the weight of the car-
 rier should or should not be considered in deter-mining
 the quantity of LSD mixture for punishment pur-poses.'
 '' 908 F. 2d, at 1327-1328.
 Presumably in response, Senator Biden offered a technical
amendment, the purpose of which was to correct an inequity
that had become apparent from several recent court deci-
sions.

 ***BEGIN FOOTNOTE 8***
 See, e. g., United States v. Bishop, 704 F. Supp. 910 (ND
Iowa 1989).
***END FOOTNOTE 8***

According to Senator Biden, ``[t]he amendment rem-edies
this inequity by removing the weight of the carrier from the
calculation of the weight of the mixture or sub-stance.'' 135
Cong. Rec. S12748 (Oct. 5, 1989).

 ***BEGIN FOOTNOTE 9***
 Senator Biden offered the following example to highlight the
inequities that resulted if the carrier weight were included in
determining the weight of the ``mixture or substance'' of
LSD:


 ``The inequity in these decisions is apparent in the fol-
 lowing example. A single dose of LSD weighs approxi-
 mately .05 mg. The sugar cube on which the dose may
 be dropped for purposes of ingestion and transporta-
 tion, however, weighs approximately 2 grams. Under 21
 U. S. C. 841(b) a person distributing more than one
 gram of a `mixture or sub-stance' containing LSD is
 punishable by a minimum sentence of 5 years and a
 maximum sentence of 40 years. A person distributing
 less than a gram of LSD, however, is subject only to a
 maximum sentence of 20 years. Thus a person distri-
 buting a 1,000 doses of LSD in liquid form is subject to
 no minimum penalty, while a person handing another
 person a single dose on a sugar cube is subject to the
 mandatory five year penalty.'' 135 Cong. Rec. S12748
 (Oct. 5, 1989).
***END FOOTNOTE 9***

Although Senator Biden's amendment was adopted as part of
Amend-ment No. 976 to S. 1711, the bill never passed the
House of Representatives. Senator Kennedy also tried to
clarify the language of 21 U. S. C. 841. He proposed the fol-
lowing amendment:

``CLARIFICATION OF `MIXTURE OR
 SUBSTANCE.'


``Section 841(b)(1) of title 21, United States Code, is
amended by inserting the following new subsection at the
end thereof:


 `` `(E) In determining the weight of a ``mixture or
 sub-stance'' under this section, the court shall not in-
 clude the weight of the carrier upon which the controlled
 sub-stance is placed, or by which it is transported.' '' 136
 Cong. Rec. S7069-S7070 (May 24, 1990).

 Although such subsequent legislation must be approached
with circumspection because it can neither clarify what the
enacting Congress had contemplated nor speak to whether
the clarifications will ever be passed, the amendments, at the
very least, indicate that the language of the statute is far
from clear or plain.

 In light of the ambiguity of the phrase ``mixture or sub-
stance'' and the lack of legislative history to guide us, it is
necessary to examine the congressional purpose behind the
statute and to determine whether the majority's reading of
the statute leads to results that Congress clearly could not
have intended. The figures in the Court's opinion, see ante,
at 4, n. 2, are sufficient to show that the majority's construc-
tion will lead to anomalous sentences that are contrary to one
of the central purposes of the Sentencing Guidelines, which
was to eliminate disparity in sentencing. ``Congress sought
reasonable uniformity in sentencing by narrowing the wide
disparity in sentences imposed for similar criminal offenses
 committed by similar offenders.'' U. S. Sentencing Comm'n,
 Federal Sentencing Guidelines Manual 1.2 (1991).

 ***BEGIN FOOTNOTE 16***
 ``[T]he use of sentencing guidelines and policy statements
will assure that each sentence is fair as compared to all other
sentences.'' Ibid.
***END FOOTNOTE 16***

As the majority's chart makes clear, widely divergent sen-
tences may be imposed for the sale of identical amounts of a
con-trolled substance simply because of the nature of the
car-rier.

 ***BEGIN FOOTNOTE 16***
 ``[T]he use of sentencing guidelines and policy statements
will assure that each sentence is fair as compared to all other
sentences.'' Ibid.
***END FOOTNOTE 16***

If 100 doses of LSD were sold on sugar cubes, the sentence
would range from 188-235 months, whereas if the same
dosage were sold in its pure liquid form, the sentence would
range only from 10-16 months. See ante, at 4, n. 2. The ab-
surdity and inequity of this result is emphasized in Judge
Posner's dissent:


 ``A person who sells LSD on blotter paper is not a
 worse criminal than one who sells the same number of
 doses on gelatin cubes, but he is subject to a heavier
 pun-ishment. A person who sells five doses of LSD on
 sugar cubes is not a worse person than a manufacturer
 of LSD who is caught with 19,999 doses in pure form,
 but the former is subject to a ten-year mandatory
 minimum no-parole sentence while the latter is not even
 subject to the five-year minimum. If defendant Chap-
 man, who re-ceived five years for selling a thousand
 doses of LSD on blotter paper, had sold the same
 number of doses in pure form, his Guidelines sentence
 would have been fourteen months. And defendant
 Marshall's sentence for selling almost 12,000 doses
 would have been four years rather than twenty. The de-
 fendant in United States v. Rose, 881 F. 2d 386, 387 (7th
 Cir. 1989), must have bought an unusually heavy blotter
 paper, for he sold only 472 doses, yet his blotter paper
 weighed 7.3 grams -- more than Chapman's, although
 Chapman sold more than twice as many doses. Depend-
 ing on the weight of the carrier medium (zero when the
 stuff is sold in pure form), and excluding the orange
 juice case, the Guide-lines range for selling 198 doses
 (the amount in Dean) or 472 doses (the amount in
 Rose) stretches from ten months to 365 months; for sel-
 ling a thousand doses (Chapman), from fifteen to 365
 months; and for selling 11,751 doses (Marshall), from
 33 months to life. In none of these computations, by
 the way, does the weight of the LSD itself make a
 difference -- so slight is its weight relative to that of the
 carrier -- except of course when it is sold in pure form.
 Congress might as well have said: if there is a carrier,
 weigh the carrier and for-get the LSD.


 ``This is a quilt the pattern whereof no one has been
 able to discern. The legislative history is silent, and
 since even the Justice Department cannot explain the
 why of the punishment scheme that it is defending, the
 most plausible inference is that Congress simply did not
 realize how LSD is sold.'' 908 F. 2d, at 1333.

  ***BEGIN FOOTNOTE 16***
  ``[T]he use of sentencing guidelines and policy statements
 will assure that each sentence is fair as compared to all other
 sentences.'' Ibid.
 ***END FOOTNOTE 16***

 Sentencing disparities that have been described as
 ``crazy,'' ibid., and ``loony,'' id., at 1332, could well be
 avoided if the majority did not insist upon stretching the
 definition of ``mix-ture'' to include the carrier along
 with the LSD. It does not make sense to include a car-
 rier in calculating the weight of the LSD because LSD,
 unlike drugs such as cocaine or mari-juana, is sold by
 dosage rather than by weight. Thus, whether one dose
 of LSD is added to a glass of orange juice or to a pitcher
 of orange juice, it is still only one dose that has been ad-
 ded. But if the weight of the orange juice is to be added
 to the calculation, then the person who sells the single
 dose of LSD in a pitcher rather than in a glass will re-
 ceive a substantially higher sentence. If the weight of
 the carrier is included in the calculation not only does it
 lead to huge dis-parities in sentences among LSD
 offenders, but also it leads to disparities when LSD sen-
 tences are compared to sen-tences for other drugs. See
 n. 12, supra; 908 F. 2d, at 1335.

 There is nothing in our jurisprudence that compels us to
in-terpret an ambiguous statute to reach such an absurd
result. In fact, we have specifically declined to do so in the
past, even when the statute was not ambiguous, on the
ground that Congress could not have intended such an out-
come.

 ***BEGIN FOOTNOTE 16***
 ``[T]he use of sentencing guidelines and policy statements
will assure that each sentence is fair as compared to all other
sentences.'' Ibid.
***END FOOTNOTE 16***

In construing a statute, Learned Hand wisely counseled us to
look first to the words of the statute, but ``not to make a for-
tress out of the dictionary; but to remember that statutes al-
ways have some purpose or object to accomplish, whose
sympathetic and imaginative discovery is the surest guide to
their meaning.'' Cabell v. Markham, 148 F. 2d 737, 739
(CA2), aff'd, 326 U. S. 404 (1945). In the past, we have
rec-ognized that ``frequently words of general meaning are
used in a statute, words broad enough to include an act in
ques-tion, and yet a consideration of . . . the absurd results
which follow from giving such broad meaning to the words,
makes it unreasonable to believe that the legislator intended
to include the particular act.'' Holy Trinity Church v. United
States, 143 U. S. 457, 459 (1892). These words guided our
construc-tion of the statute at issue in Public Citizen v.
Department of Justice, 491 U. S. 440, 454 (1989), when we
also noted that ``[l]ooking beyond the naked text for gui-
dance is perfectly proper when the result it apparently de-
crees is difficult to fathom or where it seems inconsistent
with Congress' inten-tion . . . .'' Id., at 455.

 Undoubtedly, Congress intended to punish drug traffick-
ers severely, and in particular, Congress intended to punish
those who sell large quantities of drugs more severely than
those who sell small quantities.

 ***BEGIN FOOTNOTE 16***
 ``[T]he use of sentencing guidelines and policy statements
will assure that each sentence is fair as compared to all other
sentences.'' Ibid.
***END FOOTNOTE 16***

But it did not express any intention to treat those who sell
LSD differently from those who sell other dangerous drugs.

 ***BEGIN FOOTNOTE 16***
 ``[T]he use of sentencing guidelines and policy statements
will assure that each sentence is fair as compared to all other
sentences.'' Ibid.
***END FOOTNOTE 16***

The majority's construc-tion of the statute fails to embody
these legitimate goals of Congress. Instead of punishing
more severely those who sell large quantities of LSD, the
Court would punish more se-verely those who sell small
quantities of LSD in weighty car-riers, and instead of sen-
tencing in comparable ways those who sell different types of
drugs, the Court would sentence those who sell LSD to
longer terms than those who sell pro-portionately equivalent
quantities of other equally dangerous drugs.

 ***BEGIN FOOTNOTE 16***
 ``[T]he use of sentencing guidelines and policy statements
will assure that each sentence is fair as compared to all other
sentences.'' Ibid.
***END FOOTNOTE 16***

The Court today shows little respect for Congress' handiwork
when it construes a statute to undermine the very goals that
Congress sought to achieve.

 I respectfully dissent.