United States v. Valerio ( 1998 )

[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
No. 97-1468
UNITED STATES,
Appellee,
v.
MANUEL VALERIO,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Boudin, Circuit Judge,
Coffin, Senior Circuit Judge,
and Dowd, Jr.,* Senior District Judge.
Randy Olen, with whom John M. Cicilline was on brief for
appellant.
Margaret E. Curran, Assistant United States Attorney, with
whom Sheldon Whitehouse, United States Attorney, and Kenneth P.
Madden, Assistant United States Attorney, were on brief for
appellee.
January 26, 1998
* Of the Northern District of Ohio, sitting by designation.
DOWD, Senior District Judge. The sole issue raised by
DOWD, Senior District Judge.
this appeal of the defendant's sentence, based on his guilty
plea, is whether the defendant was entitled to have cocaine
base(crack) separated from the cocaine powder, as packaged
together in three containers. The defendant asserted that the two
forms of cocaine should have been separated prior to calculating
the offense level. The sentencing court disagreed and we agree
with the sentencing court and thus affirm.
The defendant was charged in an indictment with
possession with intent to deliver cocaine in violation of 21
U.S.C. 841(a)(1). He entered a plea of guilty. On June 28,
1996, Providence Rhode Island police officers executed a search
warrant at the defendant s home and seized three bags, each
containing cocaine powder and cocaine base. The total combined
weight of powder and cocaine base was 123.4 grams. Additionally,
the police discovered a separate container containing 7.43 grams
of crack cocaine.1
1 The defendant entered his plea of guilty on December 6, 1996.
The United States Attorney recited the factual basis in part as
follows:
. . . that on June 28, 1996, at approximately
6:00 p.m., Providence police officers
executed a search warrant at a first floor
apartment . . . which was the home of the
defendant Manuel Valerio. At the time the
officers executed the warrant, the defendant
was at home . . . he was advised of his
Miranda warning by the officers. At that
time he agreed to show the police officers
where the drugs in his house were located.
He led the officers to the master bedroom in
the apartment. Under the bed he pulled out a
bag of rice. Examination of that bag showed
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The district court calculated the defendant s base
offense level as 32 pursuant to 2D1.1(c)(4) of the Sentencing
Guidelines drug quantity table.2 The government argued and the
sentencing court agreed that Note A to 2D1.1(c) applied which
indicates that if a mixture or substance contains more than one
controlled substance, "the weight of the entire mixture or
substance is assigned to the controlled substance that results in
the greater offense level." Consequently, the three bags with
weight of 123.4 grams was treated as crack cocaine.3 The Court
that it contained three plastic bags. The
plastic bags each contained a substance later
determined in total to be 123.4 grams of a
mixture containing powder cocaine and cocaine
base . . . in a bedroom closet, officers
seized a baby wipes container. Inside of
that were two bags of cut and also a bag
containing 7.43 grams of cocaine base.
The defendant agreed with the above factual
basis.
2 This subsection applies to offenses involving at least 50
grams, but less than 150 grams of crack cocaine.
3 Prior to sentencing, the defendant moved for the opportunity
to have a forensic chemist separate and measure the cocaine
powder and the cocaine base. The motion was unopposed. However,
the defendant did not follow up on the request. Nonetheless, the
defendant argues that had the crack cocaine been isolated from
the cocaine powder, the resulting base offense level would have
been 26, with a net offense level of 25, which when combined with
the defendant's Criminal History of II, would have provided for a
range of 63-78 months. In order to lower the base offense level
to 26, the weight of the separated cocaine base, when added to
the 7.43 grams of crack cocaine in the separate container would
have to have been less than 12.57 grams of cocaine base as
2D1.1(c)(7) provides for a base offense level of 26 where the
crack cocaine is not more than 20 grams. It is not clear from
the record as to why counsel for the defendant is of the view
that the "separated" crack cocaine in the three containers would
have weighed less than 12.57 grams.
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found that the offense level was 31 with a Guideline Range of
121-151 months by assessing a two level increase for possession
of a firearm and a three level decrease for acceptance of
responsibility.
The government moved for a downward departure based on
substantial assistance ( 5K1.1) and the Court reduced the
sentence below the mandatory minimum to a term of 60 months from
which the defendant now appeals.4
The emerging issues in determining the weight of the
offending controlled substances5 was partially responsible for
the subsequent amendment 484 to the Sentencing Guidelines and in
which the defendant takes comfort in this case. Amendment 484
which became effective November 1, 1993 and amended the
commentary to 2D1.1 by deleting "21 U.S.C. 841" and inserting
in lieu thereof:
"21 U.S.C. 841, except as expressly
provided. Mixture or substance does not
include materials that must be separated from
the controlled substance before the
controlled substance can be used. Examples
of such materials include the fiberglass in a
cocaine/fiberglass bonded suitcase, beeswax
4 The defendant's sentencing range, prior to departure was 121
to 151 months. The prosecution advocated a seven year sentence
and the defendant a three year sentence. The district court
indicated it would, in effect, cut the sentence in half and
sentence the defendant to the sixty-month term. Defendant's
counsel reasons that had the cocaine powder and cocaine base been
separated for sentencing purposes with a resulting range of 63 to
78 months, cutting the sentence in half would have resulted in a
32 month sentence. Hence, the appeal.
5 See United States v. Mahecha-Onofre, 936 F.2d 623 (1st Cir.
1991) and United States v. L pez-Gil, 965 F.2d 1124 (1st Cir.
1992).
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in a cocaine/beeswax statute, and waste water
from an illicit laboratory used to
manufacture a controlled substance. If such
material cannot readily be separated from the
mixture or substance that appropriately is
counted in the Drug Quantity Table, the court
may use any reasonable method to approximate
the weight of the mixture or substance to be
counted.
An upward departure nonetheless may be
warranted when the mixture or substance
counted in the Drug Quantity Table is
combined with other, non-countable material
in an unusually sophisticated manner in order
to avoid detection.".
It is without dispute that the defendant possessed with
intent to distribute a substance containing two controlled
substances. Nonetheless, because the two are not ingested in the
same manner, (the powder is inhaled and the crack is smoked)
the defendant argues they must be separated for sentencing
purposes in reliance on the Amended Commentary to U.S.S.G.
2D1.1 as the cocaine powder and cocaine base come within the
concept of "materials that must be separated from the controlled
substance before the controlled substance can be used." However,
as indicated in United States v. Campbell, 61 F.3d 976, 982 (1st
Cir. 1995), cert. denied, 116 S. Ct. 1556 (1996) "the commentary
excludes only materials that are unusable or unmarketable, such
as those used to transport the controlled substance, or waste
products that are discarded before the controlled substance is
put into the distribution chain." (Citations omitted). As
neither the cocaine powder or cocaine base is unusable or
unmarketable, the revisions to the commentary to U.S.S.G.
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2D1.1 provided by Amendment 484 are of no assistance to the
defendant.6
Accordingly, the district court's judgment is AFFIRMED.
AFFIRMED
6 Defendant's counsel, at the sentencing hearing, advocated the
separation contending that finding the two substances together is
illogical and went on to state that he could not explain why the
cocaine base and cocaine powder were mixed. No testimony was
offered as to why they were mixed, but in our view the motive or
lack of motive for the mixture is not relevant.
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