United States v. Pirnat ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5675
STEFFAN PIRNAT,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-92-311-A)
Submitted: March 21, 1996
Decided: April 2, 1996
Before NIEMEYER and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Pleasant S. Brodnax, III, Alexandria, Virginia; Mary E. Davis,
DAVIS & DAVIS, Washington, D.C., for Appellant. Helen F. Fahey,
United States Attorney, Thomas M. Hollenhorst, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Steffan Pirnat pled guilty to conspiracy to distribute more than 10
grams of lysergic acid diethylamide (LSD), 21 U.S.C.A. § 846 (West
Supp. 1995), and was sentenced in 1992 to a term of 151 months
imprisonment. His offense level was computed using the weight of
the LSD plus the weight of the carrier medium (blotter paper) under
the sentencing guidelines then in effect. United States Sentencing
Commission, Guidelines Manual § 2D1.1 (Nov. 1991).
When the Sentencing Commission revised USSG § 2D1.1 in 1993
and made the amendment retroactive,* Pirnat moved for modification
of his sentence under 18 U.S.C.A. § 3582(c)(2) (West Supp. 1995).
Under the revised guideline, the weight of the LSD alone is used to
determine the offense level. The new version of§ 2D1.1 lowered
Pirnat's sentencing guideline range to 70-87 months. However, the
district court sentenced him to the statutory minimum of 120 months,
finding that the statute controlled and that, under Chapman v. United
States, 500 U.S. 453, 468 (1991), the statute required the use of the
carrier medium in the weight of the LSD in determining whether the
mandatory minimum applied. See 18 U.S.C.A.§ 841(b)(1)(A)(v)
(West Supp. 1995).
Pirnat appeals this ruling. He contends that the amended guideline
does not conflict with Chapman, relying on United States v. Muschik,
49 F.3d 512, 518 (9th Cir. 1995). However, the Supreme Court has
now rejected the approach taken in Muschik. In Neal v. United States,
___ U.S. ___, 64 U.S.L.W. 4077 (U.S. Jan. 22, 1996) (No. 94-9088),
the Court held that the sentencing court must take into account the
entire weight of the carrier medium in determining the weight of the
"mixture or substance" containing LSD under§ 841(b)(1) even
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*USSG, App. C, Amend. 488, 502 (Nov. 1995).
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though the sentencing guidelines prescribe a different method. The
district court's decision was thus correct.
We therefore affirm the 120-month sentence imposed by the dis-
trict court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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