No. 94-9088

In the Supreme Court of the United States

OCTOBER TERM, 1995

MEIRL GILBERT NEAL, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

PAUL R.Q. WOLFSON
Assistant to the Solicitor General

ELIZABETH D. COLLERY
Attorney

Department of Justice
Washington, D.C. 20530
(202)514-2217
      
---------------------------------------- Page Break ----------------------------------------

QUESTION PRESENTED

Whether the weight assigned to a dosage unit of
LSD by the Sentencing Commission to calculate a
defendant's offense level under the Sentencing Guide-
lines also governs the determination of the weight of
the "mixture or substance" containing LSD under
the mandatory minimum sentencing provisions of 21
U.S.C. 841(b).

(I)

---------------------------------------- Page Break ----------------------------------------

TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statute and Sentencing Guideline involved . . . . 2
Statement . . . . 2
Summary of argument . . . . 14
Argument:
The constructive dosage weight in the revised
LSD Sentencing Guideline does not govern the
weight of a "mixture or substance" containing
LSD under the mandatory minimum sentencing"
statute . . . . 16
I.  The Sentencing Commission did not intend
that its revised LSD Guideline reapplied
to the "mixture or substance" calculation
under Section 841(b) . . . . 17
II. The revised LSD Guideline cannot be ap-
plied as a construction of the mandatory
minimum sentencing statute . . . . 24
A. The Sentencing Commission does not
have authority to define the reach of
"mixture or substance" in Section
841(b) . . . . 17
B. Because the new LSD Guideline is in-
consistent with Chapman, it does not
govern sentences under the mandatory
minimum statute . . . . 33
III. Congress did not override Chapman when
it permitted the revised LSD Guideline to
take effect . . . . 37
Conclusion . . . . 40

(III)

---------------------------------------- Page Break ----------------------------------------

IV

TABLE OF AUTHORITIES

Cases:                    

Page

Central Bank of Denver, N.A. v. First Interstate
Bank of Denver, N.A., 114 S. Ct. 1439( 1994) . . . . 38
Chapman v. United States, 500 U.S. 453 (1991) . . . . 4, 6, 7,
14, 16, 24, 29, 34, 35, 36
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) . . . . 30
Crandon v. United States, 494 U.S. 152(1990) . . . . 27
Deal v. United States, 113 S. Ct. 1993 (1993)  . . . .  27
Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101 (1989) . . . . 38
INS v. Chadha, 462 U. S. 919 (1983) . . . . 38
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) . . . . 33
Maislin Industries, U.S., Inc. v. Primary Steel,
inc., 497 U.S. 116 (1990) . . . . 26-27, 33
Mistretta v. United States, 488 U.S. 361 (1989) . . . . 25, 30
Pinkerton v. United States, 328 U.S. 640 (1946) . . . . 32
Schneidewind v. ANR Pipeline Co., 485 U.S. 293
(1988) . . . . 38
Sibbach v. Wilson & Co., 312 U.S. 1 (1941) . . . . 38, 39
Smith v. United States, 113 S. Ct. 2050 (1993 ) . . . . 28
Stinson v. United States, 113 S. Ct. 1913
(1993) . . . . 17, 21, 26, 30
Taylor v. United States, 495 U.S. 575 (1990) . . . . 27
United States v. Andress 47 F.3d 839 (6th Cir.
1995) . . . . 17
United States v. Bollwage, 47 F.3d 431 (11th Cir.
1995), petition for cert. pending, No. 94-8475 . . . . 17
United States v. Boot, 25 F.3d 52 (lst Cir. 1994) . . . . 17
United States v. Consuegra, 22 F.3d 788(8th Cir.
1994) . . . . 31
United States v. Doe, 934 F.2d 353 (D.C. Cir.),
cert. denied, 502 U.S. 896 (1991) . . . . 30-31
United States v. Granderson, 114 S. Ct. 1259
(1994) . . . . 27

---------------------------------------- Page Break ----------------------------------------

V

Cases-Continued:

Page

United States v. Hanlin, 48 F.3d 121 (3d Cir.
1995) . . . . 17
United States v. Irvin, 2 F.3d 72 (4th Cir.
1993), cert. denied, 114 S. Ct. 1086 (1994) . . . . 32, 33
United States v. Kinder, 64 F.3d 757 (2d Cir.
1995) . . . . 17, 22
United States v. Martinez, 987 F.2d 920 (2d Cir.
1993) . . . . 32, 33
United States v. McFadden, 13 F.3d 463 (1st Cir.
1994) . . . . 29
United States v. McGeehan, 824 F.2d 677 (8th
Cir. 1987), cert. denied, 484 U.S. 1061 (1988) . . . . 4
United States v. Mueller, 27 F.3d 494 (10th Cir.
1994) . . . . 17
United States v. Muschik, 49 F.3d 512 (9th
Cir. 1995), petition for cert. pending,
No. 95-156 . . . . 17, 22, 35, 37
United States v. Palacio, 4 F.3d 150 (2d Cir.
1993), cert. denied, 114 S. Ct. 1194 (1994) . . . . 28
United States v. Purdue, 36 F.3d 429 (5th Cir.
1994), cert. denied, 115 S. Ct. 1969 (1995) . . . . 17
United States v. Shabazz, 933 F.2d 1029 (D.C.
Cir.), cert. denied, 502 U.S. 964 (1991) . . . . 31, 32
United States v. Stoneking, 60 F.3d 399 (8th
Cir. 1995), petition for cert. pending,
No. 95-5410 . . . . 17, 22, 35, 37
United States v. Thomas, 36 F.3d 1095 (4th Cir.
1994), petition for cert. pending, No. 94-8233 . . . . 17
United States v. Young, 997 F.2d 1204 (7th Cir.
1993) . . . . 32, 33
Williams v. United States, 503 U.S. 193 (1992) . . . . 30

Constitution, statutes, Sentencing Guidelines and rule:

U.S. Const. Art. I, 7 . . . . 38
Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,
100 Stat. 3207 . . . . 2
Comprehensive Crime Control Act of 1984,
Pub. L. No. 98-473, Tit. II, 98 Stat. 1976 . . . . 3

---------------------------------------- Page Break ----------------------------------------

VI

Statutes, Sentencing Guidelines and rule-Continued:

Page

Controlled Substances Act, Pub. L. No. 91-513,
Tit. II, 401, 84 Stat. 1260-1262 (1970) . . . . 3
Controlled Substances Penalties Amendments Act
of 1984, Pub. L. No. 98-473, Tit. II, Ch. V, 98 Stat.
2068 . . . . 3, 4
Rules Enabling Act, 28 U.S.C. 2071 et seq . . . . 38 
Sentencing Reform Act of 1984, Pub. L. No. 98-473,
Tit. II, Ch. II, 98 Stat. 1987 . . . . 8
18 U.S.C. 3553(e) . . . . 25
18 U.S.C. 3582(c)(2) . . . . 2
21 U.S.C. 841 . . . . 2
21 U.S.C. 841(a) . . . . 31
21 U.S.C. 841(b) . . . . passim
21 U.S.C. 841(b)(1)(A) . . . . 3, 18, 31
21 U.S.C. 841(b)(1)(A)(iv) . . . . 
21 U.S.C. 841(b)(1)(A)(v) . . . . 2, 3, 11, 20, 36
21 U.S.C. 841(b)(1)(A)(vi) . . . . 4
21 U.S.C. 841(b)(1)(A)(viii) . . . . 4
21 U.S.C. 841(b)(1)(B) . . . . 3, 31
21 U.S.C. 841(b)(1)(B)(iv) . . . . 4
21 U.S.C. 841(b)(1)(B)(v) . . . . 3, 9
21 U.S.C. 841(b)(1)(B)(vi) . . . . 4
21 U.S.C. 841(b)(1)(B)(viii) . . . . 4
21 U.S.C. 841(b)(1)(C) . . . . 3, 25, 31
21 U.S.C. 841(b)(1)(D) . . . . 31
21 U.S.C. 846 . . . . 2, 32, 33
28 U.S.C. 991(a) . . . . 30
28 U.S.C. 994(p) . . . . 8
28 U.S.C. 994(r) . . . . 26
Sentencing Guidelines:
Ch. 1, Pt. B:  
1B1.3 (Nov. 1, 1994) . . . . 32
Ch. 2, Pt. D:
2D1.1 (Apr. 13, 1987) . . . . 4
Drug Quantity Table . . . . 5
Commentary . . . . 5

---------------------------------------- Page Break ----------------------------------------

VII

Sentencing Guidelines and rule-Continued:     

Page

2D1.1 (Nov. 1, 1989) . . . . 5, 6
Application Note 1 . . . . 6
Application Note 10 . . . . 5
2D1.1 (Nov. 1, 1994) . . . . 9, 11, 12, 14, 20
Commentary . . . . 6, 9, 10, 18, 20, 21, 30, 35
Application Note 1 . . . . 19, 23,24
Amendment 484 . . . . 23, 24
2D1.1(c) (Nov. 1, 1989) . . . . 6
2D1.1(c) (Nov. 1, 1994) . . . . 2, 8, 18, 19, 22, 35
Amendment 488 . . . . passim
Ch. 5:
Pt. A (Apr. 13, 1987) . . . . 5
Pt. G:
5G1.1(a) (Nov. 1, 1994) . . . . 18
5G1.1(b) (Apr. 13, 1987) . . . . 5
5G1.1(b) (Nov. 1, 1994) . . . . 10, 15, 18, 23
Fed. R. Civ. P. 35 . . . . 38

Miscellaneous:

57 Fed. Reg. (1992):
p. 62,832 . . . . 7
p. 62,853 . . . . 7
58 Fed. Reg. (1993):
p. 27,148 . . . . 8
pp. 27,155-27, 156 . . . . 8
H.R. Rep. No. 845, 99th Cong., 2d Sess. Pt. 1
(1986) . . . . 4
S. Rep. No. 225, 98th Cong., 1st Sess. (1983) . . . . 28
United States Sentencing Comm'n, Guidelines
Manual (Nov. 1, 1989) . . . . 6
United States Sentencing Comm'n, Guidelines
Manual (Nov. 1, 1994) . . . . 6, 8, 11, 21, 24
United States Sentencing Comm'n, Sentencing
Guidelines and Policy Statements (Apr. 13,
1987) . . . . 4
United States Sentencing Comm'n, Special Report
to the Congress: Mandatory Minimum Penalties
in the Federal Criminal Justice System (Aug.
1991) . . . . 26, 27

---------------------------------------- Page Break ----------------------------------------

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-9088

MEIRL GILBERT NEAL, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (J.A. 35-63) is
reported at 46 F.3d 1405. The order of the district
court reducing petitioner's sentence (J.A. 31-34) is
reported at 846 F. Supp. 1362.

JURISDICTION

The judgment of the court of appeals was entered on
February 2, 1995. The petition for a writ of certiorari
was filed on May 2, 1995, and was granted on June 19,
1995 (J.A. 64). The jurisdiction of this Court rests on
28 U.S.C. 1254(1).

(1)

---------------------------------------- Page Break ----------------------------------------

2

STATUTE AND SENTENCING GUIDELINE
INVOLVED

The pertinent text of 21 U.S.C. 841(b) is set forth in
Appendix A to petitioner's brief (Pet. Br. App. 1-
5). The pertinent parts of Sentencing Guidelines
2D1.1(c) and of the Sentencing Commission's com-
mentary thereto are set forth in Appendix D to peti-
tioner's brief (Pet. Br. App. 29-31).

STATEMENT

Following a guilty plea in the United States
District Court for the Central District of Illinois,
petitioner was convicted on one count of possession of
lysergic acid diethylamide (LSD) with intent to
distribute it, in violation of 21 U.S.C. 841, and one
count of conspiracy to possess LSD with intent to
distribute it, in violation of 21 U.S.C. 846. He was
originally sentenced to 192 months' imprisonment, to
be followed by five years' supervised release. J.A. 11,
13-14. Following an amendment to the Sentencing
Guidelines relating to LSD offenses, petitioner moved
for a reduction in his sentence, pursuant to 18 U.S.C.
3582(c)(2). J.A. 18-23. The district court reduced peti-
tioner's sentence-to 120 months' imprisonment, the
mandatory minimum term required by 21 U.S.C.
841(b)(1)(A)(v), but declined to reduce the sentence
further. J.A. 31-34. The en bane court of appeals
affirmed, with three judges dissenting. J.A. 35-63.
1. In the Anti-Drug Abuse Act of 1986, Pub. L. No.
99-570, 100 Stat. 3207, Congress established mandat-
ory minimum sentences for offenses involving traf-
ficking in controlled substances, including LSD. See
21 U.S.C. 841(b). A first offender who distributes one
gram or more of a "mixture or substance containing a
detectable amount of" LSD must be sentenced to at

---------------------------------------- Page Break ----------------------------------------

3

least five years' imprisonment and may be imprisoned
for up to 40 years. 21 U.S.C. 841(b)(1)(B)(v). A first
offender who distributes ten or more grams of a
"mixture or substance" containing LSD must receive
a sentence of at least ten years' imprisonment and
may be confined for life. 21 U.S.C. 841(b)(1)(A)(v).1 A
first offender who distributes less than one gram of a
"mixture or substance" containing LSD is not sub-
ject to a statutory mandatory minimum term, but he
may be imprisoned, by statute, for up to 20 years (see
21 U.S.C. 841(b)(1)(C)), and he must be sentenced pur-
suant to the Sentencing Guidelines.
The mandatory minimum sentences in the Anti-
Drug Abuse Act generally turn, not on the weight of
the pure drug involved in the offense, but rather on
the weight of a "mixture or substance" containing the
illegal drug. In that respect, the Anti-Drug Abuse
Act was a significant departure from previous law. 2

___________________(footnotes)

1 The minimum sentences are doubled if the defendant has
a prior conviction for a felony drug offense.  21 U.S.C.
841(b)(1)(A) (flush paragraph) and (B) (flush paragraph). If
death or serious bodily harm results from use of the LSD, a
first offender who distributes one gram or more of a mixture
or substance containing LSD must be sentenced to at least 20
years' imprisonment and fined severely, and a repeat offender
who distributes one gram or more of an LSD mixture or
substance must be confined for life. Ibid.

2 The Controlled Substances Act, enacted in 1970, estab-
lished penalties for the distribution of controlled substances
according to the kind of drug involved, not its weight. The
distribution of schedule I or II controlled substances carried a
heavier punishment than the distribution of other drugs. See
Pub. L. No. 91-513, Tit. II, 401, 84 Stat. 1260-1262 (1970). The
Controlled Substances Penalties Amendments Act of 1984,
enacted as part of the Comprehensive Crime Control Act of
1984, introduced the principle that the sentence should vary

---------------------------------------- Page Break ----------------------------------------

4

Congress's reliance on the weight of the "mixture or
substance: reflects a "market-oriented" approach to
punishing drug traffickers, under which sentences
are based on the actual material distributed or
intended to be distributed. See H.R. Rep. No. 845,
99th Cong., 2d Sess. Pt. 1, at 11-12, 17 (1986). Con-
gress graduated the penalties according to the weight
of the drugs in the form in which they are found-cut
or uncut, pure or impure, ready for wholesaling or
ready for distribution at the retail level. 3.
2. In 1987, after the enactment of the Anti-Drug
Abuse Act, the United States Sentencing Commis-
sion (Commission) adopted Sentencing Guidelines to
address trafficking in controlled substances. United 
States Sentencing Comm'n, Sentencing Guidelines
and Policy Statements 2D1.1 (Apr. 13, 1987) (April
1987 Guidelines). The April 1987 Guidelines followed
the statutory mandatory minimum structure in sev-
eral respects. The Commission established a Drug
Quantity Table to designate base offense levels that

___________________(footnotes)

according to the weight of the drug chargeable to the defen-
dant. In the case of LSD, the 1984 Act imposed a maximum
term of 20 years' imprisonment for the distribution of five or
more grams of LSD, and a maximum term of 15 years' im-
prisonment for the distribution of lesser amount of LSD. See
Pub. L. No. 98-473, Tit. II, Ch. V, 98 Stat. 2068. In each case,
the relevant weight was that of pure LSD. United States v. 
McGeehan, 824 F.2d 677, 681 (8th Cir. 1987), cert. denied, 484
U.S. 1061 (1988).

3 There are a few exceptions to that principle. For phen-
cyclidine, propanamide, and methamphetamine, Congress
tied mandatory minimum sentences to amounts of both
the pure drug and a mixture or substance containing the
drug. 21 U.S.C. 841(b)(1)(A)(iv), (vi) and (viii); 21 U.S.C.
841(b)(1)(B)(iv), (vi) and (viii). See Chapman v. United
States, 500 U.S. 453, 459 (1991).

---------------------------------------- Page Break ----------------------------------------

5

depended on the quantities of drugs involved in
offenses. Those base offense levels generally yielded
sentencing ranges corresponding to the ones re-
quired by the Anti-Drug Abuse Act; for example, an
offense involving one gram of LSD was assigned a
base offense level of 26, which yielded a sentencing
range of 63 to 78 months' imprisonment, just above
the statutory mandatory minimum term of five
years. 4. The Guidelines also provided (and continue to
provide) that, if application of the Guidelines results
in a sentence below the minimum sentence required
by statute, the statutory minimum shall be the
Guideline sentence. See id. 5G1.1(b). A footnote to
the Drug Quantity Table in the April 1987 Guidelines
stated that, "[consistent with the provisions of the
Anti-Drug Abuse Act, if any mixture of [sic] a
compound contains any detectable amount of a con-
trolled substance, the entire amount of the mixture or
compound shall be considered in measuring the
quantity." Id. 2D1.1 (Drug Quantity Table) n.*.
The Commission revised its Guidelines and com-
mentary on a number of occasions over the following
years, but, until 1993, it retained the same general
approach for drug trafficking offenses.  Thus, in
Application Note 10 to Guidelines 2D1.1, added
October 1, 1987, the Commission noted that it had
"used the sentences provided in * * * the statute (21
U.S.C. 841(b)(1)), as the primary basis for the
guideline sentences."  In the November 1, 1989,
version of the Guidelines, the Commission provided
that, "[u]nless otherwise specified, the weight of a

___________________(footnotes)

4 April 1987 Guidelines 2D1.1 (Drug Quantity Table);
id. Ch. 5, Pt. A (Sentencing Table); see also id. 2D1.1
(Commentary).

---------------------------------------- Page Break ----------------------------------------

6

controlled substance set forth in the [drug quantity]
table refers to the entire weight of any mixture or
substance containing a detectable amount of the
controlled substance." United States Sentencing
Comm'n, Guidelines Manual 2D1.1(c) n.* (Nov. 1,
1989) (1989 Guidelines). Application Note 1 to Guide-
lines 2D1.1, added November 1, 1989, reiterated that
"'[m]ixture or substance' as used in this guideline
has the same meaning as in 21 U.S.C. 841." See 1989
Guidelines App. C, Amend. 123.
3. In several prosecutions following the enactment
of the statutory mandatory sentencing provisions,
federal courts considered the proper treatment of
LSD distributed on a carrier medium for purposes of
those provisions. Because LSD is a very powerful
drug, it typically is not sold or ingested in its pure
form, but is distributed on a carrier medium, such as
blotter paper, infused with minute quantities of the
drug. The person using the LSD for its hallu-
cinogenic effect can swallow the entire piece of 
blotter paper, lick the LSD from the paper, or drop
the paper into a liquid. See Chapman v. United 
States, 500 U.S. 453, 457 (1991). As a rule, the weight
of the carrier medium greatly exceeds the weight of
the pure LSD that it contains. 5. Defendants charged
with LSD offenses argued that only the weight of the
pure LSD, and not the weight of the carrier medium,
should be included when courts calculated the weight

___________________(footnotes)

5 For example, the Drug Enforcement Administration es-
timates that the weight of the pure LSD contained in an aver-
age dose is 0.05 milligram (see Guidelines 2D1.1, Commentary
(Background) (Nov. 1, 1994)), while the weight of the average
dose of LAD on blotter paper (by far the most popular carrier)
is 8 milligrams. United States Sentencing Comm'n, Guidelines
Manual App. C, Amend. 488 (Nov. 1, 1994).

---------------------------------------- Page Break ----------------------------------------

7

of the "mixture or substance containing a, detectable
amount of" LSD under Section 841(b).
In Chapman v, United States, supra, this Court
rejected that contention and ruled that courts must
use the entire weight of the carrier medium and the
LSD to determine whether a mandatory minimum
sentence is applicable.  Construing the statutory
terms "mixture" and "substance" in light of their
"ordinary meaning," 500 U.S. at 462, the Court con-
cluded that the penalty turns on "the gross weight of
the carrier and drug together," rather than the "net
weight of the [pure] drug," id. at 459, and therefore
held that LSD-infused blotter paper is a "mixture or
substance containing a detectable amount" of LSD,
id. at 461-463. The Court noted that, when LSD is
applied to blotter paper, "[t]he LSD is diffused among
the fibers of the paper * * * [and] cannot be distin-
guished from the blotter paper, nor easily separated
from it." Id. at 462. Accordingly, the Court stated,
"the weight of a carrier should be included as
a `mixture or substance containing a detectable
amount' of LSD when determining the sentence for
an LSD distributor." Id. at 463; see also id. at 455
(We hold that it is the weight of the blotter paper
containing LSD, and not the weight of the pure
LSD, which determines eligibility for the minimum
sentence.").
4. After Chapman, the Commission reconsidered
its own approach to the treatment of LSD under the
Guidelines. The Commission originally proposed that
Guidelines sentences for LSD offenses be based on
the weight of the pure LSD involved in the offense,
rather than the "mixture or substance" contain-
ing LSD. See 57 Fed. Reg. 62,832, 62,853 (1992). The
Commission subsequently embraced an entirely new

---------------------------------------- Page Break ----------------------------------------

8

approach, however, when it promulgated Amendment
488 to the Guidelines, which revised Guidelines
2D1.1(c) with respect to LSD offenses. 6.
Although the amended Guideline nominally con-
tinues to use drug weights to calculate the defen-
dant's base offense level, the Commission abandoned
its prior reliance on the actual weight of the entire
"mixture or substance" to calculate the base offense
level. Instead, the Commission adopted a system of
sentencing based on the number of doses of LSD
involved in offenses. To implement that new ap-
proach, the Commission assigned to each dose of LSD
a constructive weight of 0.4 milligram. The revised
Guideline 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.
United States Sentencing Comm'n, Guidelines
Manual 2D1.1(c) n.* (Nov. 1, 1994). 7.
As amended, the LSD Guideline results in lower
drug weights, which translate into lower Guidelines

___________________(footnotes)

6 The Sentencing Reform Act of 1984 requires that the
Commission submit amendments to the Guidelines to Congress
for review for at least 180 days. The amendments take effect if
they are not disapproved or modified by Congress during that
period. See 28 U.S.C. 994(p). The Commission transmitted
Amendment 488 to Congress on April 29, 1993 (see 58 Fed.
Reg. 27,148, 27, 155-27,156 (1993)), and it took effect on Novem-
ber 1, 1993.

7 Amendment 488 took effect on November 1, 1993. Unless
otherwise specified, all further references to the Guidelines in
this brief are to the November 1, 1994, edition, which incor-
porates other amendments not relevant to this case.

---------------------------------------- Page Break ----------------------------------------

9

sentencing ranges. For example, the actual weight of
the average dose of LSD on blotter paper, including
the carrier, is 8 milligrams (see note 5, supra), which
is 20 times the constructive weight of 0.4 milligram
per dose chosen by the Commission. Thus, a first-
time offender who distributed 1,000 "average" doses of
LSD would, under Chapman and the former Guide-
lines, receive a sentence based on 8 grams of a "mix-
ture or substance" containing LSD; that offender
would be subject to a five-year mandatory term of
imprisonment under 21 U.S.C. 841(b)(1)(B)(v) and a
Guidelines sentencing range of 97 to 121 months'
imprisonment (reflecting a base offense level of 30).
Under the revised LSD Guideline, that offender
would be chargeable with only 400 milligrams of LSD,
which would yield a base offense level of 20 and a
Guidelines sentencing range of 33 to 41 months'
imprisonment.
The Commission also amended the background to
the commentary on Section 2D1.1 to explain its view
that, "[b]ecause the weights of LSD carrier media
vary widely and typically far exceed the weight of the
controlled substance itself, the Commission has
determined that basing offense levels on the entire
weight of the LSD and carrier medium would produce
unwarranted disparity among offenses involving the
same quantity of LSD (but different carrier
weights)." Guidelines 2D1.1, Commentary (Back-
ground). "Consequently," the Commission stated, "in
cases involving LSD contained in a carrier medium,
[we have] established a weight per dose of 0.4
milligram for purposes of determining the base
offense level." Ibid. The Commission remarked that
the figure of 0.4 milligram per dose does not represent
the actual weight of either the pure LSD or the LSD

---------------------------------------- Page Break ----------------------------------------

10

with the carrier, but was chosen as a constructive
figure to represent the drug and some amount of the
carrier:

The dosage weight of LSD selected exceeds the
Drug Enforcement Administration's standard
dosage unit of LSD of 0.05 milligram (i.e., the
quantity of actual LSD per dose) in order to
assign some weight to the carrier medium.
Because LSD typically is marketed and consumed
orally on a carrier medium, the inclusion of some
weight attributable to the carrier medium
recognizes (A) that offense levels for most other
controlled substances are based upon the weight
of the mixture containing the controlled sub-
stance without regard to purity, and (B) the
decision in Chapman v. United States, [500 U.S.
453] (1991) (holding that the term "mixture or
substance" in 21 U.S.C. 841(b)(1) includes the
carrier medium in which LSD is absorbed).

Guidelines 2D1.1, Commentary (Background).

The Commission also stated that its new approach
"will * * * avoid an undue influence of varied carrier
weight on the applicable offense level." Guidelines
2D1.1, Commentary (Background). "Nonetheless,"
the Commission observed, "this approach does not
override the applicability of `mixture or substance' for
the purpose of applying any mandatory minimum
sentence."  Ibid. (citing Chapman and Guidelines
5G1.1(b)).
5. In a series of transactions that took place in
February and March 1988, petitioner sold LSD on
blotter paper to an undercover agent of the Illinois
State Police and-a confidential source working with
the police. Original Presentence Report (PSR) 8-13

---------------------------------------- Page Break ----------------------------------------

11

(May 9, 1989). The narcotics sold contained 11,456
dosage units of LSD. Updated PSR 3 (Mar. 4, 1994).
The total weight of the LSD sold by petitioner, in-
cluding the blotter paper, was 109.51 grams. Original
PSR 13.
Because the total weight of the LSD, including the
blotter paper, exceeded ten grams, petitioner was
subject to the ten-year mandatory minimum sentence
specified in 21 U.S.C. 841(b)(1)(A)(v). Under the ver-
sion of the Sentencing Guidelines in effect on the date
of his sentencing (June 19, 1989), an offense involving
more than 100 grams of LSD yielded a base offense
level of 36. Petitioner received a reduction in his
offense level of two points, to 34, for acceptance of
responsibility. Original PSR 14-15. Because peti-
tioner had prior convictions, he was in criminal his-
tory category III, and his Guidelines sentencing
range was 188 to 235 months' imprisonment. Id. at 17-
18. The district court sentenced petitioner to 192
months' imprisonment. J.A. 13.
6. On December 10, 1993, petitioner filed a motion
to modify his sentence, relying on the retroactive
application of the new version of the LSD Guideline. 8.
He contended that the weight of the LSD, as cal-
culated by the new version of Guidelines 2D1.1, was
only 4.28 grams, 9. and therefore he was no longer
subject to the ten-year mandatory minimum sentence
for offenses involving ten grams or more of LSD. J.A.

___________________(footnotes)

8 The Commission authorized retroactive application of
Amendment 488.  See United States Sentencing Comm'n,
Guidelines Manual App. C, Amend. 502.

9 As petitioner notes (Pet. Br. 4 n.4), the weight of the LSD
involved in his offense, as calculated under the revised LSD
Guideline, is in fact 4.58 grams. The difference does not affect
the sentence calculation.

---------------------------------------- Page Break ----------------------------------------

12

18-23. An updated version of his PSR concluded that,
under the new Guidelines, his offense level was 25,
which yielded a Guidelines sentencing range of 70 to
87 months' imprisonment. Updated PSR 4-5.
The district court concluded that petitioner was
still subject to the ten-year mandatory minimum
sentence. J.A. 31-34. The court noted that the back-
ground commentary to the amendment to Guidelines
2D1.1 stated that the Commission did not intend to
overrule this Court's decision in Chapman for the
purpose of applying "any mandatory minimum sen-
tence." See J.A. 33. The court thus concluded that
"the mandatory minimum sentence of 120 months
mandated by 21 U.S.C. 841(b)(1)(A)(v) supersedes
[petitioner's] revised guideline range of 70 to 87
months.')  Ibid.. The court did, however, reduce
petitioner's term of imprisonment to 120 months,
since the Guidelines no longer require a sentence in
excess of the mandatory minimum level. J.A. 34.
7. The court of appeals, sitting en banc, affirmed
petitioner's revised sentence. J.A. 35-63. The court
acknowledged that, "[u]nder the district court's inter-
pretation of federal law, a single amount of LSD is
assigned two different weights for sentencing pur-
poses: one weight for determining the base offense
level under the Guidelines and another weight for
determining eligibility for the mandatory minimum
sentences provided in 21 U.S.C. 841(b)(1)(A)(v)."
J.A. 41. The court nonetheless concluded that the
district court's interpretation was correct, for the
post-amendment commentary to Guidelines 2D1.1
"clearly indicates that the Commission promulgated
Amendment 488 in full recognition that it would
create a `dual weight' system of calculating the
weight of LSD for sentencing purposes and that

---------------------------------------- Page Break ----------------------------------------

13

where the Guidelines approach conflicted with the
statutory mandatory minimum scheme, the latter
would prevail." J.A. 43. Therefore, the court con-
cluded, "[e]ven if an amendment to the Sentencing
Guidelines could super[s]ede the Supreme Court's
interpretation of a separate statute, [the Guidelines
commentary] make[s] clear that the amendment to
2D1.1 purported to do no such thing." J.A. 43-44.
The court also remarked that Chapman's auth-
oritative construction of the term "mixture or
substance" must continue to govern the application of
the mandatory minimum statute because "[t]he Com-
mission is without authority to override Chapman[,]
* * * '[as the Sentencing Commission has] only the
power to guide judicial discretion within the statu-
tory limits.'" J.A. 44-45.
The court rejected petitioner's argument that
using the Commission's new dosage weight formula
to calculate the base offense level while continuing to
rely on the actual weight of the drug and carrier to
determine eligibility for the mandatory minimum
sentence created an arbitrary distinction in violation
of due process. The court concluded that the dual-
weight scheme has a rational basis: "[T]hose who
deal more LSD will be punished more heavily than
those who deal less, and at a certain point there is a
qualitative leap in the seriousness of the deed that
will give rise to a sudden rather than an incremental
increase." J.A. 47. The court further concluded that
the rule of lenity was not applicable to this case
because there is no ambiguity in the sentencing
structure set up by Congress and the Sentencing
Commission. J.A. 47-48.
Circuit Judge Ripple, joined by Judges Cummins
and Rovner, dissented. J.A. 50-63. The dissent argued

---------------------------------------- Page Break ----------------------------------------

14

that the amended LSD Guideline is consistent with
this Court's construction of Section 841(b) in Chap-
man because it simply assigns a fixed, uniform
weight to carrier media. J.A. 53. The dissent also
stressed that Congress had allowed the amended
Guideline to take effect without modification or delay,
and "hence with congressional approval." J.A. 61.
Because, in the `dissent's view, "Amendment 488
remains true to the Chapman mandate that the
weight of the carrier must be included," J.A. 62, the
dissent would have held that the weight assigned to
LSD by the amended version of Guidelines 2D1.1
also governs the weight of a "mixture or substance"
containing LSD for the purpose of applying the
mandatory minimum statute.
    
SUMMARY OF ARGUMENT

I. The Sentencing Commission's revised LSD
Guideline has no application to sentencing under the
mandatory minimum penalty statute, 21 U.S.C. 841(b).
When the Commission promulgated Amendment 488
and adopted a constructive dosage weight approach to
Guidelines sentencing for LSD offenses, it did not
intend that the revised Guideline be used for sen-
tencing under Section 841(b). The Commission stated
that the new constructive weight of 0.4 milligram per
dose of LSD was to be used in applying the Guide-
lines' Drug Quantity Table, which has relevance only
to Guidelines sentencing, and gave no indication that
the 0.4-milligram figure should have any application
outside that context. In its commentary accompany-
ing the revised Guideline, the Commission acknowl-
edged the controlling force of Chapman v. United
States, 500 U.S. 453 (1991), which requires that, under
Section 841(b), the weight of the entire mixture or

---------------------------------------- Page Break ----------------------------------------

15

substance be used. It also confirmed that, under
Guidelines 5G1.1(b), a statutory mandatory mini-
mum sentence trumps any- Guidelines sentencing
range.
II. In any event, the Commission has no authority
to overrule the decision in Chapman. Congress has
not delegated to the Commission the authority to
construe terms in Section W(b) or to alter the
sentencing policy established in that statute, which
requires minimum sentences to be based on the
weight of the entire mixture or substance containing
LSD. Even if the Commission intended the new LSD
Guideline to be an interpretation of Section 841(b),
that interpretation would not be entitled to any
deference.
Furthermore, even if the Commission's views were
generally relevant in construing Section 841(b), the
new LSD Guideline still could not be given effect.
First, it conflicts with this Court's definitive con-
struction of Section 841(b) in Chapman. Chapman
requires that the weight of the entire mixture or
substance be taken into account; the new LSD
Guideline expressly and purposely abrogates that
requirement. Second, even without the construction
in Chapman, the new Guideline could not be squared
with the language of Section 841(b), for there is no.
room in the statute for sentences based on something
other than the actual weight of the mixture or
substance distributed by the defendant, such as the
constructive weight adopted by the Commission.
III. Congress's failure to modify or disapprove
Amendment 488 during the six months between its
submission by the Commission and its effective date
has no legal significance, other than to allow the
Amendment to take effect for Guidelines sentencing.

---------------------------------------- Page Break ----------------------------------------

16

Congress can alter Section 841(b), as construed in
Chapman, only through the constitutionally speci-
fied processes of bicameralism and presentment. Its
inaction on a proposed Guideline does not have the
effect of a statutory amendment. Furthermore, be-
cause the Commission confined the operation of
Amendment 488 to Guidelines sentencing, there was
no reason for Congress to believe that it would have
any effect on sentencing under Section 841(b).
        
ARGUMENT

THE CONSTRUCTIVE DOSAGE WEIGHT IN THE
REVISED LSD SENTENCING GUIDELINE DOES
NOT GOVERN THE WEIGHT OF A "MIXTURE OR
SUBSTANCE" CONTAINING LSD UNDER THE MAN-
DATORY MINIMUM SENTENCING STATUTE

In Chapman v. United States, 500 U.S. 453, 459
(1991), this Court held that, when sentencing courts
calculate the weight of a "mixture or substance con-
taining a detectable amount" of LSD under the
mandatory minimum sentencing statute, 21 U.S.C.
841(b), they must use the actual, entire weight of the
drug and its carrier medium. A recent amendment to
the Sentencing Guidelines instructs courts to apply a
constructive weight of 0.4 milligram per dose of LSD
distributed on a carrier medium when calculating a
defendant's base offense level under the Guidelines.
The question presented in this case is whether the
Sentencing Commission's new approach should also
be employed to determine the applicability of a
statutory mandatory minimum sentence. The court
of appeals correctly concluded that the amendment of
the LSD Guideline has no effect on the statutory

---------------------------------------- Page Break ----------------------------------------

17

method of determining the weight of a "mixture or
substance" containing LSD. 10.

I. THE SENTENCING COMMISSION DID NOT INTEND
THAT ITS REVISED LSD GUIDELINE BE APPLIED
TO THE "MIXTURE OR- SUBSTANCE" CALCULA-
TION UNDER SECTION 841(b)

Petitioner argues that the new LSD Guideline
must be applied to sentencing under Section 841(b)
because the Commission intended that result, because
the courts owe deference to the Commission's action,
and because Congress sanctioned application of the
new Guideline to mandatory minimum sentencing.
His argument fails at the threshold. In both the re-
vised Guideline itself and the Background Commen-
tary explaining that Guideline (which is entitled to
deference under Stinson v. United States, 113 S. Ct.
1913 (1993)), the Commission made clear that it did
                                                       
___________________(footnotes)

10  The court of appeals' conclusion is consistent with pub-
lished decisions in seven other circuits. United States v. Boot,
25 F.3d 52, 55 (lst Cir. 1994); United States v. Kinder, 64 F.3d
757 (2d Cir. 1995); United States v. Hanlin, 48 F.3d 121 (3d
Cir. 1995); United States v. Pardue, 36 F.3d 429, 431 (5th Cir.
1994), cert. denied, 115 S. Ct. 1969 (1995); United States v.
Andress, 47 F.3d 839 (6th Cir. 1995); United States v.
Stoneking, 60 F.3d 399 (8th Cir. 1995) (en bane), petition for
cert. pending, No. 95-5410; United States v. Mueller, 27 F.3d
494, 496-497 (10th Cir. 1994). Two other courts of appeals have
reached the same result in unpublished decisions. See United
States v. Thomas, 36 F.3d 1095 (4th Cir. 1994) (Table) (No. 94-
6053), petition for cert. pending, No. 948233; United States v.
Bollwage, 47 F.3d 431 (11th Cir. 1995) (Table) (No. 94-2120),
petition for cert. pending, No. 94-8475. Only the Ninth Circuit
has agreed with petitioner's argument that the revised LSD
Guideline now governs the statutory minimum sentencing stat-
ute. United States v. Muschik, 49 F.3d 512 (1995), petition for
cert. pending, No. 95-156.

---------------------------------------- Page Break ----------------------------------------

18

not intend that courts apply its revised Guideline to
determine the applicability of a mandatory minimum
sentence under Section 841(b).
The Commission has always recognized that its
discretion in setting sentencing ranges is limited
by maximum and minimum sentences prescribed
by statutes,  Guidelines 5G1.1(a) provides that,
"[w]here the statutorily authorized maximum sen-
tence is less than the minimum of the applicable
guideline range, the statutorily authorized maxi-
mum sentence shall be the guideline sentence."
Conversely, Guidelines  5G1.1(b) states that,
"[w]here a statutorily required minimum sentence is
greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence
shall be the guideline sentence." Those two Guide-
lines make clear that the Commission claims no
authority to override any statutory sentencing
directive.
In general, the Commission has coordinated the
Guidelines sentencing ranges for drug offenses with
the mandatory minimum sentences of the Anti-Drug
Abuse Act. In the current Guidelines, as in previous
versions, the Drug Quantity Table in Guidelines
2D1.1(c) sets the base offense levels for most drug
offenses at levels that correspond to the applicable
statutory minimum sentences.  See Guidelines
2D1.1, Commentary (Background). 11. In addition, the
          
___________________(footnotes)

11 For example, the Drug Quantity Table assigns a base of-
fense level of at least 32 to offenses involving amounts of drugs
that trigger a ten-year minimum sentence under 21 U.S.C.
841(b)(l)(A). That offense level yields a Guidelines sentencing
range (for a first offender) of 121-151 months' imprisonment,
which has "a lower limit as close to the statutory minimum as
possible." Guidelines  2D1.1, Commentary (Background).

---------------------------------------- Page Break ----------------------------------------

19

Commission has provided that, "[u]nless otherwise
specified, the weight of a controlled substance set
forth in the [Drug Quantity Table] refers to the
entire weight of any mixture or substance containing
a detectable amount of the controlled substance."
Guidelines  2D1.1(c) n.*. The Commission has
explained that the term "mixture or substance" for
Guidelines purposes should have "the same meaning
as in 21 U.S.C. 841, except as expressly provided."
Guidelines 2D1.1, Application Note 1. Under" the
Commission's approach, therefore, drugs involved in
an offense will usually have the same weight for
Guidelines sentencing as they have for sentencing
under Section 841(b).
After Chapman was decided, the Commission de-
cided to take a different approach to LSD sentencing
under the Guidelines than it has taken for other drug
trafficking offenses. Guidelines 2D1.1(c) n.* directs
the courts to use "the entire weight of any mixture or
substance" containing a controlled substance, "[u]n-
less otherwise specified." In Amendment 488, which
revised the asterisk note to Guidelines 2D1.1(c) as
of November 1, 1993, the Commission did "otherwise
specify]," by instructing courts not to "use the
weight of the LSD/carrier medium" but rather to
"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." Guidelines 2D1.1(c) n.*.
Read together, the new Guideline and accompany-
ing commentary demonstrate that the Commission
intended its new dosage weight approach to be applied
only to sentencing under the Guidelines. The aster-
isk note to Guidelines 2D1.1(c) (which is part of the
Guideline itself) instructs sentencing courts to treat
each dose of LSD on a carrier medium as equal to 0.4

---------------------------------------- Page Break ----------------------------------------

20

milligram "for the purposes of the Drug Quantity
Table." Application of the Drug Quantity Table,
which is arranged by weights of various drugs,
determines the defendant's base offense level; that
offense level, after adjustments and when considered
with the defendant's criminal history, yields the
defendant's Guidelines- sentencing range. The Drug
Quantity Table has no operation or significance
outside the Guidelines, and the Commission gave no
indication that the new LSD footnote to the Table
should be treated as an extraordinary exception to
that fact. To the contrary, the commentary to revised
Guidelines 2D1.1 reiterates that "the Commis-
sion has established a weight per dose [of LSD]
of 0.4 milligram for purposes of determining the
base offense level." Guidelines 2D1.1, Commentary
(Background) (emphasis added). 12
The Commission also directly addressed the effect
of the revised LSD Guideline on mandatory minimum
sentences in its commentary to the new Guideline.

___________________(footnotes)

12 The weight of 0.4 milligram assigned by the Commission
to each dose of LSD is a small fraction of the actual weight of
the average dose of LSD with its carrier medium. Thus, if the
dosage weight approach were applied to sentencing under
Section 841(b), it would dramatically raise the threshold for
application of the mandatory minimum statute. Under Chap-
man, a defendant who sells 1,250 doses on blotter paper of
average weight (8 milligrams) is subject to a ten-year man-
datory minimum sentence under Section 841(b)(l)(A)(v). If a
weight of 0.4 milligram per dose were used, however, the ten-
year mandatory minimum sentence would not apply unless
the defendant sold 25,000 doses of LSD. Had the Commis-
sion intended to limit the operation of Section 841(b) so
dramatically, it undoubtedly would have acknowledged the
intended effect of its amendment and discussed whether its
actions were consistent with the statute and Chapman.

---------------------------------------- Page Break ----------------------------------------

21

After expressing its view that the revision was
needed to avoid sentence disparities caused by "varied
carrier weight," the Commission cautioned, "[n]one-
theless, this approach does not override the appli-
cability of `mixture or substance' for the purpose of
applying any mandatory minimum sentence (see
Chapman; 5G1.1(b))." Guidelines  2D1.1, Commen-
tary (Background). 13. The meaning of that commen-
tary is evident: The Commission recognized that
courts must continue to apply Chapman's directive
to use the actual weight of the entire "mixture or
substance" when determining the applicability of
mandatory minimum sentences for LSD offenses,
even while using the constructive dosage weight to
calculate base offense levels that dictate Guidelines
sentencing ranges.
The Commission's statement in the commentary
about the intended reach of the revised Guideline is
binding on the courts.  Under Stinson v. United
States, 113 S. Ct. at 1920, the Commission's commen-
tary construing a particular Guideline is controlling
as long as it does not "run afoul of the Constitution or
                                                
___________________(footnotes)

13 The explanatory commentary accompanying Amendment
488 reiterates that point in language that even more clearly
demonstrates that the Commission did not intend to disturb the
construction of Section 841(b) adopted in Chapman. The Com-
mission there stated, "[n]onetheless, this approach does not
override the definition of mixture or substance for purposes of
applying any mandatory minimum sentence (see Chapman;
5G1.1(b))." United States Sentencing Comm'n, Guidelines
Manual App. C, Amend. 488 (emphasis added). The Commis-
sion's use of the term "definition" in place of "applicability,"
which is the term used in the Commentary to the Guideline,
suggests that the Commission understood the construction of
the statute to be fixed by this Court and not subject to revision
by the Commission.

---------------------------------------- Page Break ----------------------------------------

22

a federal statute, and is not `plainly erroneous or
inconsistent' with [the Guideline]." Petitioner does
not suggest that limiting the Commission's dosage
weight approach to Guidelines sentencing presents
any constitutional difficulties; indeed, that limitation
avoids constitutional problems involving bicamer-
alism and presentment raised by petitioner's argu-
ment that Congress ratified the revised Guideline by
failing to prevent it from taking effect. See pp. 37-38,
infra. And the commentary does not conflict with
Section 841(b), since it acknowledges the superior
force of that statute over the Guideline.  It is
consistent also with Guidelines 2D1.1(c) n.*, for
both texts acknowledge that Amendment 488 is
restricted to application of the Drug Quantity Table.
2. Petitioner contends that, in acknowledging that
the dosage weight approach does not "override" the
Chapman construction of "mixture or substance,"
the Commission meant only to suggest that its
revision was consistent with Chapman. Pet. Br. 31-
34. He argues that the revised Guideline reflects the
Commission's recognition that the weight of the
carrier medium must somehow be taken into account
to give meaning to the terms "mixture or substance"
for LSD offenses, and that the commentary merely
confirms that recognition.  That argument is
incorrect. 14.
The revised LSD Guideline does retain some
aspects of the "mixture or substance" requirement

___________________(footnotes)

14 A panel of the Ninth Circuit and several dissenting judges
in other circuits have advanced essentially the same argument.
See Muschik, 49 F.3d at 516; J.A. 55-59, 63 (dissent to decision
below); Kinder, 64 F.3d at 768-769 (Leval, J., dissenting);
Stoneking, 60 F.3d at 408-409 (Beam, J., dissenting).

---------------------------------------- Page Break ----------------------------------------

23

found in the counterpart mandatory minimum pro-
visions of Section 841(b). Thus, the Commission did
not move to a sentencing scheme based on the weight
of the pure drug; rather, it adopted a constructive
weight of 0.4 milligram to represent the combined
weight of the drug and its carrier. That does not
mean, however, that the Commission intended that its
revision have any application beyond sentencing
under the Guidelines. Most telling in that regard is
the Commission's citation to Guidelines 5G1.1(b) at
the very end of the new background commentary.
Guidelines 5G1.1(b) confirms that, in the event of a
conflict between a mandatory minimum sentencing
statute and a Guidelines sentencing range (as where
the entire Guidelines range is below the statutory
minimum sentence), the statute prevails. See p. 18,
supra. By citing Guidelines 5G1.1(b) and empha-
sizing that, "[nonetheless, [the revised] approach
does not override" the statutory "mixture or sub-
stance" requirement, the Commission demonstrated
its understanding that the requirements of the
statute, as construed in Chapman, would prevail over
any inconsistent sentencing range calculated under
the Guidelines.
Petitioner suggests, however (Pet. Br. 33), that the
Commission's acknowledgment of the "mixture or
substance" element in Amendment 488 is best ex-
plained by reference to the simultaneously promul-
gated Amendment 484, in which the Commission
excluded from its own definition of "mixture or
substance" materials "that must be separated from
the controlled substance before the controlled sub-
stance can be used." See Guidelines 2D1.1, Ap-
plication Note 1. The commentary "'accompanying
Amendment 488, however, gave no indication that the

---------------------------------------- Page Break ----------------------------------------

24

revision of the LSD Guideline had any relation to the
separate subject with which Amendment 484 was
concerned. Amendment 484 resolved an issue, for
Guidelines sentencing purposes, that was arguably
not treated in Chapman. 15. Amendment 488, however,
dealt specifically with the issue presented in Chap-
man under counterpart Guidelines provisions, limited
that Amendment's reach to Guidelines sentencing,
and acknowledged that the Chapman rule remained
controlling in the event of a conflict between the
Guidelines and the statute.

II. THE REVISED LSD GUIDELINE CANNOT BE AP-
PLIED AS A CONSTRUCTION OF THE MANDATORY
MINIMUM SENTENCING STATUTE

A. The Sentencing Commission Does Not Have
Authority To Define The Reach Of "Mixture
Or Substance" In Section 841(b)

Even if the Commission had intended its dosage
weight approach to LSD offenses to govern senten-
cing under Section 841(b), the revised Guideline none-
theless could not be given effect in that context. With
respect to certain drug offenses, Congress has not
given the Commission its customary discretion in

___________________(footnotes)

15 In Chapman, the Court noted that "[i]t may be true that
the weights of containers and packaging materials general-
ly are not included in determining a sentence for drug
distribution."  500 U.S. at 463,  Amendment 484 addresses
much more specifically the treatment of substances associated
with the production or distribution of drugs, such as "the
fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a
cocaine/beeswax statue, and waste water from an illicit labora-
tory used to manufacture a controlled substance."  United
States Sentencing Comm'n, Guidelines Manual App. C, Amend.
484; Guidelines 2D1.1, Application Note 1.

---------------------------------------- Page Break ----------------------------------------

25

setting sentencing ranges. Nor has Congress dele-
gated to the Commission the task of construing the
"mixture or substance" element in the sentencing
statute. Instead, Congress has set the minimum sen-
tence itself and has placed in the statute the condition
for application of that minimum sentence the actual
weight of drugs and carrier medium involved in the
offense. Congress has left no room for the Com-
mission to modify or interpret that requirement. 16
1. As the Court noted in Mistretta v. United
States, 488 U.S. 361, 364 (1989), "Congress * * * has
the power to fix the sentence for a federal crime,
* * * and the scope of judicial discretion with respect
to a sentence is subject to congressional control."
For most federal crimes, Congress has set only a
maximum penalty and has delegated to the Sen-
tencing Commission the task of establishing the
permissible "range of sentences below that maximum.
See generally id. at 364-365, 369. But for some
offenses, including those subject to the Anti-Drug
Abuse Act, Congress has further established federal
sentencing policy by imposing mandatory minimum
penalties. The Commission cannot direct courts to
impose a sentence outside those statutory limits, for,
as the court of appeals correctly observed, the
Commission's authority includes "only the power to

___________________(footnotes)
                                                                
16 With respect to offenses involving less than one gram of
a mixture or substance containing LSD, Congress has left
the Commission its customary discretion, and the new
Guideline can be applied to such offenses. See 21 U.S.C.
841(b)(1)(C); p. 3, supra. The new Guideline can also be
applied if the sentencing court, on motion by the government,
departs downward from the mandatory minimum sentence
because of the defendant's substantial assistance to the
prosecution. See 18 U.S.C. 3553(e).

---------------------------------------- Page Break ----------------------------------------

26

guide judicial discretion within the statutory limits."
J.A. 45; see 28 U. S.C. 994(r) (Commission may
recommend to Congress that it raise or lower
statutory maximum penalties).  "The Sentencing
Commission promulgates guidelines by virtue of an
express congressional delegation of authority for
rulemaking," Stinson v. United States, 113 S. Ct. at
1919, and its authority reaches only as far as Con-
gress has extended it.
Mandatory minimum penalties specified by Con-
gress may well diverge from the Guidelines sen-
tencing ranges that would apply in their absence.
The Commission has, in fact, criticized mandatory
minimum sentencing statutes (including the Anti-
Drug Abuse Act of 1986) for creating a "cliff" effect
in sentencing, such that small incremental increases
in the quantities of drugs involved in offenses lead to
large increases in the severity of sentences. See
United States Sentencing Comm'n, Special Report to
the Congress: Mandatory Minimum Penalties in the
Federal Criminal Justice System 30-31 (Aug. 1991)
[hereinafter Mandatory Minimum Penalties]. But
whatever the policy arguments against mandatory
minimum statutes, those arguments have no rele-
vance to the issue at hand, for it cannot be disputed
that such statutes must be given controlling effect in
cases in which they apply. In cases like this one,
moreover, the existence of any "cliff" effect results
less from any mandatory minimum statute than from
the Commission's decision dramatically to lower sen-
tences for LSD offenses. When the Commission's
views about sentencing policy depart from those of
Congress, it may become difficult to achieve entirely
consistent sentencing, but that is a matter for
Congress, not the courts, to address. Cf. Maislin

---------------------------------------- Page Break ----------------------------------------

27

Industries, U.S., Inc. v. Primary Steel, Inc., 497 U.S.
116, 138 (1990) (Scalia, J., concurring).
Petitioner is therefore wide of the mark when he
argues (Pet. Br. 9, 25) that the Court should not
interpret Section 841(b) as an "implied repeal" of the.
Commission's general authority to set sentencing
policy. Section 841(b) is an express exception to
the system of Guidelines sentencing and has long
been recognized as such. See Mandatory Minimum
Penalties 26 ("In numerous * * * respects * * *
mandatory minimums are both structurally and
functionally at odds with sentencing guidelines and
the goals the guidelines seek to achieve."); id. at 28
(describing mandatory minimums in Section 841(b) as
"illustrative" of sentencing approach substantially
different from that pursued in the Guidelines).
2. Petitioner contends that the courts should give
effect to the Commission's new LSD Guideline in
sentencing under Section 841(b) because the Com-
mission purportedly has authority to define terms in
that statute. Pet. Br. 20-28. Nothing in the Anti-
Drug Abuse Act, however, suggests that Congress
vested the Commission with the authority to inter-
pret or to define the statutory phrase "mixture or
substance." And absent delegation of authority to an
agency, sentencing statutes are construed and applied
by the courts, using traditional tools of statutory
construction. See, e.g., United States v. Granderson, 
114 S. Ct. 1259 (1994); Deal v. United States, 113 S. Ct.
1993 (1993); Taylor v. United States, 495 U.S. 575-
(1990); see also Crandon v. United States, 494 U.S-
152, 177 (1990) (Scalia, J. concurring in the judgment)
("The law in question, a criminal statute, is not ad-
ministered by any agency but by the courts."). This
Court has previously described as "dubious" the argu-

---------------------------------------- Page Break ----------------------------------------

28

ment that the Guidelines are even "relevant" to
interpretation of parallel terms in criminal statutes,
which, like mandatory minimum provisions, are ad-
dressed to the courts, not the Commission. Smith v.
United States, 113 S. Ct. 2050, 2055 (1993); see also
United States v. Palacio, 4 F.3d 150,155 (2d Cir. 1993)
("[U]nless the Sentencing Commission is construing
its own authority as an agency, its view of the
substantive meaning of a criminal statute is unlikely
to be entitled to any deference.") (citation omitted),
cert. denied, 114 S. Ct. 1194 (1994). 17
Petitioner notes (Pet. Br, 21-22) that the Com-
mission necessarily makes interpretations of federal
criminal statutes in the course of fashioning Guide-
lines, because the Commission must strive to define
the conduct that each statute prohibits to set an
appropriate sentencing range. But the only products
of that effort that are entitled to deference are the
Guidelines sentencing ranges themselves and the
Commission's commentary that explains them; the
Commission is not authorized to render interpre-
tations of substantive federal criminal law. Similarly,
the Commission may consider mandatory minimum
statutes in developing the Guidelines, but Congress

___________________(footnotes)

17 petitioner suggests (Pet. Br. 24) that, in the legislative
history of the Sentencing Reform Act of 1984, Congress con-
templated a role for the Commission in administering manda-
tory minimum penalty laws. The discussion cited by petition-
er, however, merely refers to such laws as part of existing
sentencing practice and, at most, suggests that they would con-
tinue to exist even-after Congress's comprehensive reform of
sentencing. See S. Rep. No. 225, 98th Cong., 1st Sess. 66 (1963).
The Senate Report did not suggest that the Commission was
being delegated authority to construe terms in mandatory
minimum statutes.

---------------------------------------- Page Break ----------------------------------------

29

left it to the courts to interpret and enforce the
mandatory minimum provisions of federal sentencing
law. 18
Petitioner suggests that Chapman construed a
"technical term" in the penalty statute, and that the
Commission may therefore have a role in redefining
that term. Pet. Br. 23, 28. He also suggests that
deference to the Commission's "interpretation" of
that supposedly technical term is appropriate because
the 0.4 milligram dosage weight is the product of the
Commission's "technical expertise" regarding the
portion of the carrier medium that can be said to have
"mixed" with the LSD. Pet. Br. 42.44. The Chap-                                                    
man decision, however, did not describe the phrase
"mixture or substance" as technical.  Rather, the
Court observed that, because the words are not
defined by the statute and do not have any established                                  
common law meaning, they "must be given their
ordinary meaning." 500 U.S. at 462. Nor did the
Commission purport to base Amendment 488 on a
scientific conclusion about the actual dispersion of

___________________(footnotes)

18 The primary situation in which the Commission might
have occasion to "construe" mandatory minimum penalty stat-
utes would be to coordinate Guidelines sentencing ranges with
applicable statutory minimum sentences, or to acknowledge
discontinuities.  Nothing in that exercise suggests that the
Commission would be entitled to deference in its understanding
of the mandatory minimum statutes. Petitioner asserts that
courts should reconcile statutory sentencing provisions with
the Commission's resolution of parallel issues under the
Guidelines. Pet. Br. 24 (citing, inter alia, United States v,
McFadden, 13 F.3d 463, 467-468 (1st Cir. 1994) (Breyer, C. J.,
dissenting)).  But unless Congress directs otherwise, the
meaning of a sentencing statute does not fluctuate based on the
Commission's attempts to formulate the separate Guidelines
sentencing regime.

---------------------------------------- Page Break ----------------------------------------

30

LSD crystals among carrier media. Rather, the
Commission based its dosage weight approach on
policy judgments, different from those of Congress
codified in Section 841(b), regarding the appropriate
sentences in LSD cases. See Guidelines 2D1.1,
Commentary (Background).
Although petitioner disclaims strict reliance on the
familiar principles of deference to agency interpre-
tation expounded in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984),
he suggests that "the Commission is a judicial
agency and its rulemaking may therefore be binding
on courts on sentencing matters."  Pet. Br. 14.
Congress did establish the Commission as "an
independent commission in the judicial branch." 28
U.S.C. 991(a). The Commission, however, plainly "is
not a court and does not exercise judicial power."
Mistretta, 488 U.S. at 384-385; see id. at 393. The
Commission therefore has neither the judicial power
to "say what the law is" with respect to Section 841(b)
nor the congressionally delegated administrative
power to interpret terms in that statute.
Certain interpretations by the Sentencing Com-
mission are entitled to deference; in particular, Com-
mission commentary interpreting the Guidelines is
entitled to the same deference as that given to an
agency's interpretation of its legislative rules. See
Stinson v. United States, 113 S. Ct. at 1919; see also
Williams v. United States, 503 U.S. 193, 200-201
(1992) (Commission's policy statement interpreting
Guideline is authoritative guide to its meaning). In
addition, courts have deferred to the Commission's
reasonable interpretations of language in its own
organic statute, the Sentencing Reform Act. See,
e.g., United States v. Doe, 934 F.2d 353, 359 (D.C.

---------------------------------------- Page Break ----------------------------------------

31

Cir.), cert. denied, 502 U.S. 896 (1991); United States
v. Consuegra, 22 F.3d 788, 789 (8th Cir. 1994). But the
Commission's revised LSD Guideline is not, an exer-
cise of any power delegated by the Anti-Drug Abuse
Act, and it lacks any force in the interpretation or
construction of that Act.
3. Petitioner relies on lower-court decisions in
which, he argues, the courts have construed pro-
visions in sentencing statutes to conform them to the
Sentencing Guidelines. See Pet. Br. 22, 24, 26-27 He
suggests that those cases confirm the Commission's 
authority "to define and construe technical terms
within the drug penalty statute." Id. at 23. That
argument cannot be sustained.
In United States v. Shabazz, 933 F.2d 1029 (D.C.
Cir.), cert. denied, 502 U.S. 964 (1991), the court, per
then-Judge Thomas, upheld a Sentencing Guideline
providing for sentences to be based on the weight of a
"mixture or substance" containing hydromorphone
against a contention that the Anti-Drug Abuse Act
required sentences to be based on the pure drug. 19.
The court of appeals concluded that "mixture or
substance" sentencing was within the Commission's

___________________(footnotes)

19 Hydromorphone is a schedule II controlled substance, and
trafficking in it is made criminal by 21 U.S.C. 841(a). Traf-
ficking in hydromorphone, however, is not subject to the man-
datory minimum penalties set forth in Section 841(b)(1)(A) or
(B). Nor is hydromorphone covered by the penalties in Section
841(b)(1)(D), which relate to marijuana, hashish, and schedule
III, IV and V substances. By default, therefore, the penalties
for hydromorphone are found in Section 841(b)(1)(C). With
certain exceptions, Section 841(b)(1)(C) provides only a maxi-
mum penalty of 20 years' imprisonment for drug offenses
covered by that Section, and it do-es not contain the "mixture
or substance" language found elsewhere in Section 841(b).

---------------------------------------- Page Break ----------------------------------------

32

discretion because, in the statute, "Congress said
absolutely nothing about how the sentence imposed
should be tailored to the weight of the hydromorphone
involved.'' 933 F.2d at 1035. That conclusion is consis-
tent with our argument here. If Congress does not
require any particular sentencing treatment, then
the Commission may exercise its own delegated
discretion. But if Congress speaks to a particular
sentencing issue, then its direction must be given
controlling effect over an inconsistent Guideline.
Petitioner also relies (Pet. Br. 25-26) on a series of
cases in which the courts concluded that a traditional
principle of conspiracy law, limiting a defendant's
liability for actions of a co-conspirator to those acts
that were reasonably foreseeable consequences of the
conspiracy, should be applied to the federal drug
conspiracy statute, 21 U.S.C. 846. See Pinkerton v.
United States, 328 U.S. 640, 647-648 (1946). In those
cases, the courts observed that the Sentencing Guide-
lines incorporated the Pinkerton rule in Guidelines
1B1.3, and that applying Pinkerton in prosecutions
under Section 846 had the virtue of harmonizing the
sentencing principles of the Guidelines and the
statutes. See, e.g., United States v. Irvin, 2 F.3d 72,
77-78 (4th Cir. 1993), cert. denied, 114 S. Ct. 1086
(1994); United States v. Young, 997 F.2d 1204, 1210
(7th Cir. 1993); United States v. Martinez, 987 F.2d
920, 926 (2d Cir. 1993).
The desire for such consistency, however, was not
an overriding basis for the decisions in those cases;
nor did the courts reach their decisions because of
deference to the Commission. See Irvin, 2 F.3d at 77
(Guidelines rule "not controlling of our decision");
Young, 997 F.2d at 1210 (framing question as whether
Guidelines' approach "is also applicable to cases in

---------------------------------------- Page Break ----------------------------------------

33

which the sentence is governed not by the Guidelines
but by the statutory mandate"). In each case, the
court independently examined the reach of Section
846 and concluded, based on Congress's assumptions
and purpose in enacting that statute, that Congress
had not intended to depart from the Pinkerton rule.
See Irvin, 2 F.3d at 75-77; Young, 997 F.2d at 1210;
Martinez, 987 F.2d at 925. Similarly, the sentencing
determination in this case calls for application of a
statute, as construed by the courts. The Commis-
sion's new LSD Guideline is not relevant to that task.

B. Because The New LSD Guideline Is Incon-
sistent With Chapman, It Does Not Govern
Sentences Under The Mandatory Minimum
Statute

Even if the Commission did have a role to play in
construing, Section 841(b), such that principles of
deference would normally be relevant, the new LSD
Guideline nonetheless could not be applied to the
mandatory minimum statute. Stare decisis requires
that the Commission's approach be evaluated for its
conformity to governing precedents construing the
language of Section 841(b), including Chapman.
Because the revised LSD Guideline is inconsistent
with Chapman, it does not govern cases like this one.
This Court has held that, "[o]nce we have deter-
mined a statute's clear meaning, we adhere to that
determination under the doctrine of stare decisis, and
we judge an agency's later interpretation of the
statute against our prior determination of the
statute's meaning." Lechmere, Inc. v. NLRB, 502
U.S. 527, 536-537 (1992); Maislin Industries, 497 U.S.
at 131. Thus, even in the context of a statute that is
administered by an agency usually entitled to defer-

---------------------------------------- Page Break ----------------------------------------

34

ence to its construction of ambiguous terms as was
the case in both Lechmere and Maislin-this Court's
definitive construction of a statutory provision
controls any subsequent administrative interpre-
tations of the statute. Agency interpretations that
are inconsistent with the judicial construction cannot
be given effect.
Chapman was indisputably a construction of the
"clear meaning" of Section 841(b). In that case, the
Court rejected the petitioners' argument that the
statutory words "mixture or substance" are ambig-
uous. 500 U.S. at 458-459. The Court reasoned that,
since "Congress clearly distinguished between the
pure drug and a `mixture or substance containing a
detectable amount of' the pure drug[,] * * * under
the language of the statute the weight of the mixture
or substance * * * is controlling." Id. at 459460.
The Court therefore held that, "[s]o long as it
contains a detectable amount, the entire mixture or
substance is to be weighed when calculating the
sentence." Id. at 459 (emphasis added). The Court
also employed traditional tools of statutory con-
struction, including reference to the ordinary mean-
ing of the words, to arrive at the conclusion that
LSD-infused blotter paper is a "mixture or
substance." Id. at 462. The Court rejected the peti-
tioners' reliance on the rule of lenity because, it
concluded, the statute is not ambiguous, and the
"straightforward reading" of the statute does not
produce a result demonstrably at odds with Con-
gress's likely intent. Id. at 463-464, And, although
the Court was well aware that "those selling the
same number of doses [c]ould be subject to widely
varying sentences depending upon which carrier
medium [is] used" (id. at 458 n.2), it held that

---------------------------------------- Page Break ----------------------------------------

35

Congress had a rational basis for tying penalties to
the weight of drugs in the from in which they are
actually sold (id. at 465).
The new LSD Guideline is inconsistent with Chap-
man's rule that "the entire mixture or substance" is
to be weighed when calculating the sentence. The
Guideline specifically directs courts not to use the
entire weight of the entire mixture or substance: "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." Guidelines 2D1.1(c) n.*.
The binding background commentary to the Guideline
explains that the Commission deliberately chose not
to tie the base offense levels to the "entire weight of
the LSD and carrier medium" because doing so, in the
Commission's view, "would produce unwarranted
disparity among offenses" involving LSD. Guidelines
2D1.1, Commentary (Background).
Petitioner suggests, however, that the revised
LSD Guideline can be viewed as simply a standard
definition of the amount of a carrier medium that
constitutes a "mixture." Pet. Br. 47-49. 20. There is no
hint in the Guideline or the commentary, however,
that the Commission viewed its amendment in that
fashion. Furthermore, even if the Commission had
adopted that view, the result would be inconsistent
with Chapman. An important basis for the decision
in Chapman was the Court's recognition that Con-
gress had adopted a "market-oriented" approach to
punishing drug trafficking, under which "the total
quantity of what is distributed" determines the

___________________(footnotes)

20 As petitioner observes, the Ninth Circuit and several
dissenting judges have also taken that position. Muschik, 49
F.3d at 516; Stoneking, 60 F.3d at 407 (Beam, J., dissenting).

---------------------------------------- Page Break ----------------------------------------

36

length of the sentence. 500 U.S. at 461. Congress
"intended the penalties for drug trafficking to be
graduated according to the weight of the drugs in
whatever form they were found." Ibid. There is no
room in that sentencing scheme-which applies to
many other drugs as well as LSD-for the operation
of the Commission's system based on the constructive
weight of LSD.
Indeed, the amended Guideline could not be squared
with the language of Section 841(b), even if the
question in Chapman were still open. The statute
requires that the sentence be based on "a mixture or
substance" containing LSD. 21 U.S.C. 841(b)(1)(A)(v).
Petitioner argues that "a" mixture or substance need
not be the heaviest possible mixture of drug and
carrier, and that the Commission has authority to
specify "the" mixture or substance to be used in
calculating the weight of the LSD. Pet. Br. 38. But
in Section 841(b) Congress plainly referred to any
particular mixture or substance containing LSD
involved in the defendant's offense and made the
weight of that mixture or substance the basis for
invoking the mandatory penalties. Congress did not
refer to a hypothetical, average mixture or substance.
One might argue-as the petitioners did in Chap-
man-that the weight of only the pure drug should be
taken into account; but one cannot reasonably argue
that something more than the pure drug, but less
than the entire mixture or substance, should be used.
Under petitioner's approach, the meaning of the
statutory language could change frequently, depend-
ing on the Commission's interpretation. Petitioner
evidently is content with the Commission's current
directive, based on a constructive weight of 0.4
milligram per dose of LSD. In the future, however,

---------------------------------------- Page Break ----------------------------------------

37

the Commission might conclude that LSD offenses
were not being punished severely enough and might
assign a constructive weight of (for example) 1
milligram, or even 8 milligrams, to each dose of LSD.
See note 5, supra (8 milligrams is average weight of
dose of LSD carried on blotter paper). The Com-
mission might even revert to a system based on the
actual weight of the entire mixture or substance.
Even if, in unusual cases, it might be difficult to
determine whether a particular material is a
"mixture or substance," the statutory terms are not
so pliable that they can mean an actual mixture or
substance, and also any constructive mixture or
substance weighing any amount less than an actual
mixture or substance. No accepted theory of statu-
tory interpretation supports such a peculiar result.

III. CONGRESS DID NOT OVERRIDE CHAPMAN WHEN
IT PERMITTED THE REVISED LSD GUIDELINE TO
TAKE EFFECT

Finally, petitioner contends (Pet. Br. 10-11, 28-31)
that Congress itself overrode Chapman and approved
the application of the new LSD Guideline to Section
841(b) when it failed to modify or disapprove the
Guideline before it took effect six months after the
Commission transmitted it to Congress. 21. That argu-
ment fails for several reasons.
First, as discussed above (pp. 20-21, supra), the
commentary to the amended Guideline specifically
disclaims any intent to "override" the definition of
"mixture or substance" established in Chapman, and
it acknowledges the controlling force of mandatory

___________________(footnotes)

21 See also Muschik, 49 F.3d at 517; Stoneking, 60 F.3d at 409
(Beam, J., dissenting).

---------------------------------------- Page Break ----------------------------------------

38

minimum sentencing statutes. As a result, Congress
had no reason to believe that Amendment 488 would
affect the calculation of mandatory minimum senten-
ces under Section 841(b), and its failure to block that
Amendment cannot be viewed as congressional ap-
proval of such a change.
Second, the premise of petitioner's argument, that
Congress's failure to block a Guidelines amendment
could alter the meaning of Section 841(b), is incon-
sistent with basic constitutional principles.  This
Court's construction of Section 841(b) is controlling
unless and until Congress amends the law. Congress
cannot change the law through inaction; under
Article I, Section 7, of the Constitution, a statute can
be amended only if a bill is passed by both Houses of
Congress and signed by the President (or if Congress
validly overrides a presidential veto). INS v. Chadha,
462 U.S. 919, 951-959 (1983). This Court has also
instructed on numerous occasions that Congress's
failure to enact legislation is an unreliable basis for
conclusions about its intent. See, e.g., Central Bank
of Denver, N.A. v. First Interstate Bank of Denver,
N.A., 114 S. Ct. 1439, 1453 (1994); Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 114 (1989);
Schneidewind v. ANR Pipeline Co., 485 U.S. 293,
306 (1988).
Sibbach v. Wilson & Co., 312 U.S. 1 (1941), is not to
the contrary. In that case, the Court sustained the
validity of Rule 35 of the Federal Rules of Civil Pro-
cedure against the contention that it contravened
the statutory restriction that the Rules not affect
substantive rights. The Court observed that, pur-
suant to the Rules Enabling Act, it had submitted
Rule 35 to Congress for consideration, and that the
Rule had not taken effect until the expiration of a six-

---------------------------------------- Page Break ----------------------------------------

39

month period of congressional review. 312 U.S. at 14-
15. The Court noted that report-and-wait provisions
are "frequently * * * employed to make sure that
the action under the delegation squares with the
Congressional purpose," and it concluded that "[e]vi-
dently the Congress felt the rule was within the
ambit of the statute as no effort was made to eliminate
it from the proposed body of rules." Id. at 15.
As a general matter, it is doubtful that any
inference about Congress's intent may be drawn from
its failure to overturn a rule submitted to it for
review under a report-and-wait provision. 22. Even if an
inference could be drawn in some cases, none that
assists petitioner could be drawn here. Congress may
well have satisfied itself that the revised LSD Guide-
line is consistent with the Commission's authority,
and with Congress's own general policy principles,
insofar as it concerns sentencing under the Guide-
lines. That, in turn, may have been sufficient for
Congress to allow the Guideline to, take effect. The
revised LSD Guideline. is not, however, an exercise of
any power delegated by Congress to the Commission

___________________(footnotes)
                                
22 As Justice Frankfurter, joined by Justices Black, Douglas,
and Murphy, observed in Sibbach, 312 U.S. at 18 (dissenting
opinion):

[L]ittle significance attaches to the fact that the Rules, in
accordance with the statute, remained on the tables of two
Houses of Congress without evoking any objection * * *
and thereby automatically came into force.  Plainly the
Rules are not acts of Congress and can not be treated as
such. Having due regard to the mechanics of legislation
and the practical conditions surrounding the business of
Congress when the Rules were submitted, to draw any
inference of tacit approval from non-action by Congress is
to appeal to unreality.

---------------------------------------- Page Break ----------------------------------------

40

to implement Section 841(b), Contrary to petitioner's
suggestion (Pet. Br. 31), Congress's failure to block
implementation of Amendment 488 does not imply its
approval of the new Guideline to sentencing under
Section 841(b).
      
CONCLUSION

The judgment of the court of appeals should be
affirmed.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

PAUL R.Q. WOLFSON
Assistant to the Solicitor General

ELIZABETH D. COLLERY
Attorney

OCTOBER 1995

---------------------------------------- Page Break ----------------------------------------