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SUPREME COURT OF THE UNITED STATES
JERRY WAYNE SEWELL, II
92-6455 v. __
UNITED STATES
JAMES EDWIN SHERROD
92-6484 v. __
UNITED STATES
JERRY WAYNE SEWELL, SR.
92-6591 v. __
UNITED STATES
ON PETITIONS FOR WRITS OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
Nos. 92-6455, 92-6484 AND 92-6591.
Decided February 22, 1993
The petitions for writs of certiorari are denied.
JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, dissenting.
These petitions raise yet again the question whether waste by-products that
are not ingestible or marketable may be included in calculating the weight of a
"mixture or substance containing a detectable amount of . . . methamphetamine"
for purposes of S2D1.1 of the United States Sentencing Commission Guidelines
Manual (Nov. 1991). The circuits are deeply split on this issue. As I noted in
Walker v. United States, 506 U. S. ___ (1992), the Courts of Appeals for the______ _____________
Second, Third, and Ninth Circuits have joined the Sixth and Eleventh Circuits in
adopting an approach consistent with that urged by petitioners. By contrast,
the Court of Appeals for the Fifth Circuit, joined by the First and Tenth
Circuits, has adopted a contrary approach. Ibid. In the decision below, the _____
Court of Appeals for the Fifth Circuit adhered to this position,2 SEWELL v. UNITED STATES ____
reaffirming its disagreement with the holding of the Sixth Circuit in United ______
States v. Jennings, 945 F. 2d 129 (CA6 1991) and recognizing inconsistency with______ ________
approaches adopted by the Second and Eleventh Circuits. United States v. ______________
Sherrod, 964 F. 2d 1501, 1509-1511, and n. 22 (CA5 1992). The conflict is_______
enduring and the issue important. As a result of the conflict, those convicted
of violating federal law are subject to widely disparate sentences, depending
only on the federal Circuit in which their cases are brought. The issue is a
recurring one. Respondent concedes that the Circuits are in conflict, but notes
that it did not oppose certiorari in United States v. Mahecha-Onofre, 936 F. 2d _____________ ______________
623 (CA1), and this Court nonetheless denied review there, 502 U. S. ___ (1991),
and since has denied review of the issue four more times. Respondent is
correct. See Cooper v. United States, 506 U. S. ___ (1992) (WHITE and BLACKMUN, ______ _____________
JJ., dissenting from denial of cert.); Walker v. United States, supra, (WHITE ______ _____________________
and BLACKMUN, JJ., dissenting from denial of cert.); Fowner v. United States, ______ _______________
504 U. S. ___ (1992) (WHITE, J., dissenting from denial of cert.); Beltran-Felix _____________
v. United States, 504 U. S. ___ (1992) (WHITE, J., dissenting from denial of _____________
cert.). This marks the sixth time this issue has come before the Court in two
terms. The Court should resolve this persistent conflict.