United States v. Sullivan ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5864
BRADLEY SULLIVAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-95-304)
Submitted: March 19, 1996
Decided: April 3, 1996
Before ERVIN and WILKINS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Lisa B. Kemler, MOFFITT, ZWERLING & KEMLER, P.C., Alexan-
dria, Virginia, for Appellant. Helen F. Fahey, United States Attorney,
Leslie B. McClendon, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Bradley Sullivan appeals his 120-month sentence imposed pursuant
to his guilty plea to conspiracy to possess with intent to distribute ten
grams or more of LSD.* The court sentenced Bradley under 21
U.S.C.A. § 841(b)(1)(A)(v) (West Supp. 1995), which mandates a
ten-year minimum sentence for a conviction of trafficking in more
than ten grams of a substance containing a detectable amount of LSD.
Because we find that the sentencing court properly determined the
weight of the LSD in determining that the ten-gram threshold was
met, we affirm Bradley's sentence.
Bradley alleges that a recent amendment to the Sentencing Guide-
lines that assigns a presumptive weight of 0.4 milligrams per dose of
LSD for purposes of determining a guidelines sentence alters the
method of weight calculation for purposes of § 841 as well. Before
the guidelines amendment, the weight of the carrier medium with the
absorbed LSD was included in determining the weight of the drug.
See Chapman v. United States, 500 U.S. 453, 455 (1991); United
States v. Daly, 883 F.2d 313, 318 (4th Cir. 1989), cert. denied, 496
U.S. 927 (1990).
The Supreme Court recently rejected Bradley's argument in Neal
v. United States, ___ U.S. ___, 64 U.S.L.W. 4077 (U.S. Jan. 22,
1996) (No. 94-9088). In Neal, the Court held that Chapman still
applies to cases involving statutory minimum sentences despite the
amendment to the Guidelines. Thus, the court properly calculated the
weight of LSD in sentencing Bradley, and since that weight exceeded
ten grams, Bradley was properly sentenced to the statutorily mandated
minimum. We dispense with oral argument because the facts and
_________________________________________________________________
*Bradley also was sentenced to five years of supervised release and
assessed a $50 special assessment.
2
legal contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED
3