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United States v. Gurgiolo

argued: January 9, 1990.

UNITED STATES OF AMERICA
v.
DALE R. GURGIOLO, APPELLANT



On appeal from the United States District Court for the Western District of Pennsylvania; D.C. Crim. No. 89-00023.

Gibbons, Chief Judge, Scirica, Circuit Judge, Waldman,*fn* District Judge.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Chief Judge:

Dale R. Gurgiolo appeals from a judgment of sentence entered by the District Court of the Western District of Pennsylvania on July 11, 1989. The district court sentenced Gurgiolo to seven and a half years imprisonment on four counts of federal drugs violations, to which he had pleaded guilty. Gurgiolo now challenges this sentence on the grounds the district court misconstrued the Federal Sentencing Guidelines when it calculated the base offense level attributable to Schedule III substances. The government cross-appeals, arguing that the court miscalculated the weight of the Schedule II substances involved in Gurgiolo's offenses. We will reverse the district court's judgment of sentence on both grounds.*fn1

I.

According to the scheme established by the Federal Sentencing Guidelines, a criminal defendant's sentence depends on two factors. The first factor is the "offense level," a numerical value ranging from 1 to 43 that corresponds to the severity of the crime. See United States Sentencing Comm'n, Federal Sentencing Guidelines Manual §§ 1B1.1, 2A1.1-2X5.1. To calculate this offense level, one starts by looking to the Guidelines, which assign a "base offense level" to all federal crimes. For example, the Guidelines assign a base offense level of 43 to first degree murder, whereas the base offense level for trespass is 4. See id. This value may then be adjusted upwards or downwards in light of certain mitigating or aggravating factors, such as the extent to which the defendant accepts responsibility (a mitigating factor), or whether the defendant obstructed justice in the course of the proceedings against him (an aggravating factor). See id. at §§ 3A1.1-3E1.1.1. The second major factor upon which a defendant's sentence depends is his "criminal history category." See id. at § 4A1.1-4B1.3. There are six such categories. The lengthier the criminal history, the higher the category into which the defendant is placed.

Once these two factors are calculated, the defendant's sentence may then be determined by referring to a chart in the Guidelines entitled the "Sentencing Table." This chart cross-tabulates the defendant's offense level against his criminal history category, and yields a range of months for which the defendant may be imprisoned. See Id. at § 5.2. For example, if a defendant's offense level is 17 and his criminal history category is III, the Sentencing Table dictates a prison sentence of 30 to 37 months. Id.

This methodology becomes more complicated when the offense involves illegal drugs. This wrinkle arises because the severity of a particular drug-related crime, and hence its appropriate numerical offense level, depends not just on the general nature of the crime, but on the quantity and type of drug involved in the particular offense. To solve this problem, the Guidelines provide "Drug Quantity Tables" that set forth base offense levels for drug violations according to the type and weight of certain drugs. See id. at § 2D1.1. Under these tables, the base offense level rises in direct relation to the weight and seriousness of the drug. For example, a crime involving between 40 and 60 grams of heroin is given a base level of 20, whereas a crime involving from 60 to 80 grams of heroin is given a base level of 22, and so on.

Yet another complication arises, however, when a crime involves a variety of different drugs. In such circumstances, it is necessary to convert the weights of the different drugs involved in the crime to a single, uniform value for purposes of determining the base offense level. The Guidelines achieve this result by setting forth in "Drug Equivalency Tables" certain conversion factors by which the weights of different drugs can be translated into an "equivalent" weight in heroin. See id. According to this table, for example, 1 gram of codeine is equivalent to .08 grams of heroin. An individual charged with trafficking 100 grams of codeine thus should receive the base offense level that applies to a crime involving 8 grams of heroin (100 x .08 = 8).

II.

During the period when Dale Gurgiolo committed his offenses, he was a licensed pharmacist who practiced in Pittsburgh, Pennsylvania. In July of 1987, Federal Drug Enforcement agents began to suspect that Gurgiolo was involved in illegally selling various pharmaceutical drugs to distributors. After a lengthy investigation, these agents obtained a warrant to search Gurgiolo's pharmacy, which they executed in November of 1988. Upon conducting this search, the agents found that Gurgiolo's records reflected considerable shortages in oxycodone, hydrocodone, codeine, glutethimide, and diazepam. Gurgiolo eventually confessed to selling these drugs unlawfully to individuals without valid prescriptions.

On March 22, 1989, a grand jury indicted Gurgiolo on four counts of federal drugs violations: (1) conspiracy to distribute and possession with intent to distribute oxycodone, hydrocodone, codeine, glutethimide, and diazepam (listed as Schedule II, III, and IV controlled substances) under 21 U.S.C. § 846; (2) possession with intent to distribute codeine (listed as a Schedule III controlled substance) under 21 U.S.C. § 841(a)(1); (3) possession with intent to distribute glutethimide (listed as a Schedule III substance) under 21 U.S.C. § 841(a)(1); and (4) possession with intent to distribute diazepam (listed as a Schedule IV substance) under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). Gurgiolo pleaded guilty to all four counts on April 28, and the district court ordered a presentence report.

The district court followed the steps dictated by the Guidelines in calculating Gurgiolo's sentence. Having a clean criminal record, Gurgiolo was placed in the lowest criminal history category of I. Determining his base offense level was more difficult, however, given the combination of unconventional drugs involved in his crimes. The presentence report filed by the Probation Office concluded that the appropriate offense level in Gurgiolo's case was 26: referring to the Drug Equivalency Tables, the report converted each of the drugs involved in Gurgiolo's offenses into heroin equivalencies. According to the report, the total heroin equivalency was 307.7891 grams, to which the Guidelines assign a base offense level of 26. The report adjusted this figure upward by two points in light of Gurgiolo's abuse of his position as a pharmacist, but readjusted it downward by the same value in ...


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