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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2272
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL DIMEO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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John A. Ciraldo, with whom Perkins, Thompson, Hinckley & Keddy
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was on brief for appellant.
Michael M. DuBose, Assistant United States Attorney, with whom
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Jay P. McCloskey, United States Attorney, was on brief for appellee.
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July 7, 1994
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CYR, Circuit Judge. After the district court, acting
CYR, Circuit Judge
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sua sponte, reduced its original sentence in response to a recent
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amendment to the Sentencing Guidelines, see United States Sen-
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tencing Commission, Guidelines Manual, 2D1.1, comment.
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(backg'd.) (Nov. 1993), defendant Paul Dimeo appealed the revised
sentence on the ground that the district court erred in not
reducing the prison term below the minimum mandated by statute.
Finding no error, we affirm.
Appellant Dimeo pled guilty to conspiring to distribute
more than one gram of lysergic acid diethylamide ("LSD"). See 21
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U.S.C. 841(a)(1) and 846. For purposes of determining both
the statutory mandatory minimum sentence ("MMS"), see 21 U.S.C.
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841(b)(1)(B)(v) (prescribing five-year MMS for distributing "1
gram or more of a mixture or substance containing a detectable
amount of [LSD]"), and the applicable Guideline sentencing range
("GSR"), see U.S.S.G. 2D1.1(c) (Nov. 1991),1 the district
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court included the entire weight of the paper carrier medium used
in distributing the 900 LSD doses. See Chapman v. United States,
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500 U.S. 453 (1991) (construing "mixture or substance," in 21
U.S.C. 841(b), as "requir[ing] the weight of the carrier medium
to be included"). The 63-month prison term originally imposed
under the Guidelines (BOL: 26; CHC: I; GSR: 63-78 months)
trumped the five-year MMS under 21 U.S.C. 841(b)(1)(B)(v) for
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1See United States v. Dimeo, 753 F. Supp. 23, 26 (D. Me.
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1990), aff'd, 946 F.2d 880 (1st Cir. 1991) (table).
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2
distributing one gram or more of LSD. See U.S.S.G. 5G1.1(c).
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Effective November 1, 1993, however, the Sentencing
Commission amended U.S.S.G. 2D1.1, see 28 U.S.C. 944(p), by
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prescribing a less stringent (0.4 milligram per-dose) formula for
calculating LSD quantity than the regime previously upheld in
Chapman. See U.S.S.G. 2D1.1, comment. (backg'd.) (Nov. 1993)
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(hereinafter, "Amendment 488"). As the Commission provided that
Amendment 488 may be given retroactive effect consistent with 18
U.S.C. 3582(c)(2),2 see United States v. Boot, F.3d ,
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(1st Cir. 1994) [No. 93-2317, slip op. at 3-4 (1st Cir. June 7,
1994)], the district court later reduced the LSD quantity for
Guidelines sentencing purposes from 6.25 grams to 0.36 of a gram,
and the GSR to 21-27 months, but did not reduce Dimeo's sentence
below the five-year MMS, and Dimeo appealed.3
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2Section 3582(c)(2) provides that the district court, on its
own motion, may reduce a sentence imposed under the Sentencing
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Guidelines if "such a reduction is consistent with applicable
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policy statements issued by the Sentencing Commission." 18
U.S.C. 3582(c)(2).
3On November 1, 1993, the United States Probation Office
recommended a reduction in Dimeo's guideline sentence pursuant to
Amendment 488 but advised against any reduction in the five-year
MMS. The district court received no input from the parties and
conducted no hearing. Dimeo's former counsel, even though not
reappointed until after the district court had entered its
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revised sentence on November 15, 1993, nevertheless alertly
contacted the clerk of the district court on October 27, 1993,
inquiring as to the procedure for resolving issues relating to
any reduction in Dimeo's sentence. For whatever reason, the
record on appeal reflects no written or oral presentation from
Dimeo in the district court either before or after the sentence
reduction. Thus, the claims Dimeo asserts on appeal were never
presented to the district court, and are deemed waived. United
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States v. Elwell, 984 F.2d 1289, 1298 (1st Cir.) (claims not
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3
On appeal, Dimeo claims for the first time that by
permitting Amendment 488 to take effect Congress signaled its
intention that LSD weight be calculated under a unitary method
for both GSR and MMS purposes, thereby implicitly overruling
Chapman.4 Further, also for the first time, Dimeo asserts a
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constitutional challenge to the coexistence of these two diver-
gent regimes for determining LSD quantity, as violative of due
process and equal protection. Even if these claims were not
deemed waived in the district court for failure to raise them
either before or after entry of the revised judgment, see supra
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note 3, they fail for other reasons.
A sentence reduction pursuant to Amendment 488 is
expressly conditioned on conformance with 18 U.S.C. 3582(c)(2),
which confers no power on the district court to reduce a minimum
sentence mandated by statute. Furthermore, as discussed in Boot,
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slip op. at 7, a MMS reduction would exceed the power conferred
upon the district court under 18 U.S.C. 3582(c)(2), see supra
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raised in district court are waived), cert. denied, 113 S. Ct.
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2429 (1993).
4This claim is foreclosed by our recent decision in Boot,
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slip op. at 7. We note, further, that the constitutional chal-
lenge belatedly asserted by appellant may entail considerable
risk. Chapman conclusively establishes the constitutionality of
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the "mixture or substance" methodology for MMS purposes. Id.
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Were a court to conclude that the "mixture or substance" method-
ology and the 0.4 milligram per-dose formula cannot coexist
constitutionally, it seems virtually certain that Amendment 488,
rather than the "mixture or substance" methodology upheld in
Chapman, would be struck down, and with it the Guidelines sen-
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tence reduction. But see infra at pp. 4-5.
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4
note 2, since it would be inconsistent with the Sentencing
Commission policy statement accompanying Amendment 488: "None-
theless, this [new Guidelines] approach does not override the
applicability of 'mixture or substance' for the purpose of
applying any mandatory minimum sentence (see Chapman; 5G1.1(b)-
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)." U.S.S.G. 2D1.1, comment. (backg'd.). See also Boot, slip
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op. at 7.
Affirmed.
Affirmed.
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Document Info
Docket Number： 93-2272
Filed Date： 7/8/1994
Precedential Status： Precedential
Modified Date： 9/21/2015