Appeal from United States District Court for the Western District of Pennsylvania. (D.C. No. 90-cr-00006-01E).
Before: Scirica, Roth And Sarokin, Circuit Judges.
Patrick Hanlin ("Hanlin") appeals the district court's denial of his motion for a reduction in sentence. For the reasons stated herein, the district court's judgment is affirmed.
On February 27, 1990, a jury in the Western District of Pennsylvania convicted Hanlin of: (1) conspiracy to distribute and possession with intent to distribute LSD, in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute in excess of 10 grams of LSD, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(v). Hanlin's offense involved 24.448 grams of a blotter paper/LSD mixture or, as alternatively quantified, 3354 dosage units of LSD. At his original sentencing, the district court determined that the proper weight of the LSD for sentencing purposes was the weight of the pure LSD (3354 LSD dosage units x .05 milligrams per dosage unit*fn1 = 167.7 mgs of LSD) rather than the combined weight of the LSD plus the paper carrier medium. Based upon this finding, the district court sentenced Hanlin to two terms of 30 months of imprisonment, to run concurrently, three years of supervised release, and a $50 special assessment on each count of conviction.
Both parties appealed. Hanlin challenged the sufficiency of the evidence to sustain his conviction, and the government challenged the district court's decision to use the weight of the pure LSD, rather than the combined weight of the LSD and the paper carrier medium.
On July 15, 1991, in an unpublished opinion, this Court vacated Hanlin's sentence and remanded the case to the district court for resentencing in accordance with the Supreme Court's decision in Chapman v. United States, 500 U.S. 453, 111 S. Ct. 1919 (1991). See United States v. Hanlin, Nos. 90-3616, 90-3688, 90-3689 & 90-3706 (3d Cir. July 15, 1991). The Chapman decision dictates that the weight of the blotter paper, upon which LSD is found, must be included when determining the appropriate sentence for trafficking in LSD under 21 U.S.C. § 841(b)(1).
Applying the Chapman decision, the district court determined the weight of the LSD/paper combination to be 24.448 grams and, accordingly, sentenced Hanlin to 120 months on both counts of conviction, to run concurrently, two three-year terms of supervised release, and a special assessment of $50 on each count of conviction. App. 66-69. The court was constrained to impose the 120-month sentence because 21 U.S.C. § 841(b)(1)(A)(v) mandates a minimum ten-year sentence for a person convicted of possession with intent to distribute in excess of 10 grams "of a mixture or substance containing a detectable amount of" LSD, and Hanlin had been in possession of 24.448 grams of such a LSD/paper "mixture."
On March 31, 1994, Hanlin filed the present motion for a reduction of sentence, relying on the amendment to Guideline § 2D1.1(c) ("Amendment 488"), effective as of November of 1993. The amended guideline, in an explicatory footnote, provides:
In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the purposes of the Drug Quantity Table.
The Sentencing Commission chose the 0.4 mg per dose approach in the hope of alleviating "unwarranted disparity among offenses involving the same quantity of actual LSD (but of different carrier weights)" and to bring sentences for LSD in line proportionately with sentences involving other more dangerous controlled substances, such as PCP. U.S.S.G. App. C, amend. 488. Although the Drug Enforcement Administration's standard dosage unit for pure LSD is 0.05 mg, the Sentencing Commission chose to use 0.4 mg per dosage weight in order to assign some weight to the carrier medium. Id. The Commission did this in recognition that: (1) "offense levels for most other controlled substances are based upon the weight of the mixture containing the controlled ...