RICHARD L. CHAPMAN, ET AL., PETITONERS V. UNITED STATES OF AMERICA

   No. 90-5744

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Seventh Circuit

   Brief For The United States

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Constitutional, statutory, and sentencing guidelines
     provisions involved
   Statement
   Summary of argument
   Argument:
      I. The Anti-Drug Abuse Act of 1986 and the Sentencing
         Guidelines require that the combined
         weight of the LSD and its carrier medium be
         used in calculating the total weight of the drug
         for sentencing purposes
         A. Sentences for LSD offenses are based on the
            gross weight of the drug and its carrier
            medium, not the net weight of the pure
            drug
         B. LSD-infused blotter paper constitutes "a
            mixture or substance containing a detectable
            amount" of LSD
         C. Neither the rule of lenity nor the canon of
            construing laws to avoid unconstitutionality
            applies in this case
     II. Congress acted rationally in including the
         weight of LSD carrier mediums for sentencing
         purposes
         A. A convicted defendant does not have a "fundamental
            right" to have the courts at sentencing
            reassess the appropriate penalty for
            his crime
         B. Including the weight of an LSD carrier
            medium does not violate the Due Process
            Clause by making the defendant's sentence
            hinge on an arbitrary factor
         C. Including the weight of an LSD carrier
            medium as part of the statutory "mixture
            or substance" does not render the statute
            unconstitutionally vague
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (J.A. 38-87) is reported at 908
F.2d 1312.  The opinion of the district court (J.A. 13-17) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 17, 1990.
J.A. 88-89.  The petition for a writ of certiorari was filed on
September 17, 1990.  The jurisdiction of this Court rests on 28 U.S.C.
1254(1).

 CONSTITUTIONAL, STATUTORY, AND SENTENCING GUIDELINES PROVISIONS
INVOLVED

   Pertinent constitutional, statutory, and Sentencing Guidelines
provisions are reprinted in Appendix A to this brief.

                          QUESTIONS PRESENTED

   1. Whether, in determining the weight of LSD for sentencing
purposes, the district court correctly considered the combined weight
of the LSD and the bloter paper used as a carrier medium for the drug.

   2. Whether the Constitution bars Congress or the Sentencing
Commission from requiring courts, in sentencing defendants for LSD
offenses, to consider the combined weight of the LSD and the blotter
paper that is used as a carrier medium for the drug.

                               STATEMENT

   Following a joint jury trial in the United States District Court
for the Western District of Wisconsin, petitioners were convicted of
distributing lysergic acid diethylamide (LSD), in violation of 21
U.S.C. 841(a)(1).  Petitioner Chapman was sentenced to 96 months'
imprisonment;  Schoenecker was sentenced to 63 months' imprisonment;
and Brumm was sentenced to 60 months' imprisonment.  J.A. 20, 26, 32.
The en banc court of appeals consolidated their case with that of
respondent Marshall.  Marshall was convicted of distributing ten or
more grams of a mixture or substance containing a detectable amount of
LSD, in violation of 21 U.S.C. 841(a)(1), and of conspiring to commit
that offense, in violation of 21 U.S.C. 846.  He was sentenced to 240
months' imprisonment.  /1/ The en banc court of appeals affirmed the
judgment in both cases.

   1. LSD is a hallucinogenic or psychedelic drug.  When the effects
of LSD were discovered in 1943, scientists believed that the drug
might help them understand mental illness, but it soon became evident
that the dangers of the drug far outweighed any scientific value it
might have, and LSD was universally outlawed.

   LSD is an extremely powerful drug.  It is more than 100 times as
potent as psilocybin and psilocin, other hallucinogenic drugs, and
from 4,000 to 10,000 times as potent as mescaline, a naturally
occurring substance with hallucinogenic properties.  LSD is also
highly dangerous.  Under some conditions, LSD can induce confusion,
disorientation, illusions, hallucinations, delusions, paranoid
ideations, and other alterations of mood and thinking.  /2/ Today, LSD
has no legitimate medical use, and it is listed under the federal drug
laws as a Schedule I Controlled Substance.  21 U.S.C. 812.  See Tr.
66-67.  /3/

   LSD is bought and sold by the dose, not by its weight.  /4/ Tr. 30.
 According to the Sentencing Commission, the average dose of LSD is
0.05 milligrams, which means that a gram of the pure drug can produce
20,000 doses.  United States Sentencing Comm'n, Guidelines Manual 2.53
(1990).  Since a single dose of LSD is almost infinitesimal, the drug
is typically distributed through a carrier medium, such as perforated
"blotter" paper or gelatin.  The LSD is dissolved in a solvent, such
as alcohol or water, and it is then sprayed or dropped with a pipette
onto the paper or gelatin;  alternatively, the blotter paper is dipped
into the solution.  After the solvent evaporates, the blotter paper or
gelatin can be sold as a unit or cut into small one-dose squares.
Users can swallow the entire square;  they can drop it into a beverage
that releases the drug;  or they can lick the LSD off the paper.  J.A.
39-40;  Tr. 8-10, 30-35, 38-40, 48-50, 68-69.  /5/

   2. On April 17, 1989, undercover police officer Dan Roman of the
Madison, Wisconsin, Police Department spoke with petitioner Chapman
over the telephone to discuss the purchase of LSD.  Chapman told
Officer Roman that he could supply 20 sheets or approximately 2,000
doses of LSD, but that his source was out of town.  Chapman and the
officers agreed to meet at a local bar two nights later in order to
complete the sale.  When they met that evening, Chapman told Officer
Roman that he could supply the officer only 1,000 doses of LSD and
that the price would be $1,750.  Chapman and Roman agreed to make the
exchange one hour later.  Chapman then left the bar and met with
petitioners Schoenecker and Brumm.  Schoenecker later accompanied
Chapman to the bar, where Chapman sold the LSD to Officer Roman.  The
defendants were arrested minutes later.  At the time of their arrests,
Schoenecker and Brumm had with them the pre-recorded bills that
Officer Roman had used to purchase the LSD.  J.A. 4-8.

   3. Chapman, Schoenecker, and Brumm were charged with distributing
approximately five grams of LSD, in violation of 21 U.S.C. 841(a)(1).
J.A. 9.  All three pleaded guilty.  With respect to sentencing, they
argued that under the statute and the Sentencing Guidelines their
sentences should be calculated on the basis of the weight of the LSD
alone, without including the weight of the blotter paper that was used
as a carrier medium for the drug.

   The district court rejected their argument.  The court noted that
both the Sentencing Guidelines and the statute set the penalties for
LSD offenses according to the weight of any "mixture or substance
containing a detectable amount" of LSD.  See 21 U.S.C 841(b)(1)(B);
Sentencing Guidelines Section 2D1.1, Drug Quantity Table n.*.  The
court concluded that the LSD-infused blotter paper that Chapman sold
to Officer Roman was a "mixture or substance" containing the LSD.
Therfore, the court held, the 5.7 gram weight of the blotter paper and
the drug should be used as the basis for sentencing, rather than the
weight of the pure drug, which the government stipulated was less than
one gram.  See J.A. 8, 12, 13.  Because the LSD-infused blotter paper
weighted more than one gram, the court held that 21 U.S.C.
841(b)(1)(B)(v) required that the defendants be sentenced to at least
five years' imprisonment.  And because the drug-infused blotter paper
weighed more than four but less than seven grams, the court held that
petitoners' base offense level under the Sentencing Guidelines was 28.
 J.A. 13-17.  See Guidelines Section 2D1.1, Drug Quantity Table.

   The district court held that Congress and the Sentencing Commission
had not acted irrationally in setting the penalties for LSD offenses
on the basis of the combined weight of the carrier medium and the
drug.  J.A. 15-16.  "Presumably," the court wrote, Congress "wanted to
impose heavy penalties on the transportable form of the drug, since it
was in that form that (LSD) posed the greatest danger.  It was not
irrational for Congress to make that choice or, having made it, to
decline to provide separate penalties for every possible medium in
which the drug might be distributed." J.A. 16.  The court also
rejected the defendants' argument that LSD should be treated
differently from other drugs because of the way that LSD is
distributed.  Cocaine, the court explained, is rarely sold in pure
form;  it is frequently mixed with some cutting agent.  Yet "(u)nder
both the statute and the sentencing guidelines, persons who sell 500
grams of heavily cut cocaine can be subjected to the same penalties as
persons who sell 500 grams of pure cocaine." Ibid.

   The government moved pursuant to Sentencing Guidelines Section
5K1.1 for a downward departure below the indicated Guidelines range
because the defendants had provided substantial cooperation in the
government's investigation.  The government declined, however, to file
a motion under 18 U.S.C. 3553(e), which would have allowed the court
to reduce the defendants' sentences below the mandatory minimum
five-year sentence set by 21 U.S.C. 841(b)(1)(B)(v).  The court then
sentenced petitioners to terms of imprisonment that were below the
Sentencing Guidelines range, but at or above the statutory mandatory
minimum.

   4. A divided court of appeals, sitting en banc, affirmed
petitioners' sentences.  J.A. 38-87.  The court noted that both the
federal drug statutes and the Sentencing Guidelines provide an
escalating range of punishments for drug offenses based on the weight
of any "mixture or substance containing a detectable amount" of a
controlled substance.  In light of that language, the court found that
"(i)t is not possible to construe the words of Section 841 to make the
penalty turn on the net weight of the drug rather than the gross
weight of carrier and drug." J.A. 43.  Thus, in accord with the
conclusion reached by other courts of appeals, the court held that an
LSD carrier medium, such as blotter paper, constitutes a "mixture or
substance containing a detectable amount" of the drug and must be
included in calculating the drug's weight.  J.A 44-48.

   The court of appeals also concluded that this scheme was rational,
and therefore constitutional, for several reasons.  J.A. 50-62.
First, the court noted that the use of blotter paper makes LSD easier
to transport, conceal, and sell.  The paper therefore plays an
important role in facilitating the distribution of the drug.  Second,
the court held that because blotter paper was the carrier medium used
in virtually all cases involving LSD, it was rational for the statutes
and the Sentencing Guidelines to address "the main cases rather than
the exceptions." J.A. 60.  Third, the court concluded that it was
reasonable for Congress to include the weight of the blotter paper in
calculating the weight of the drug, since it would be costly and
technologically difficult to extract and accurately weight the amount
of LSD contained in the blotter paper.  Ibid.  Finally, the court
noted, petitioners selected the lightest and most common carrier
medium available for distributing their LSD;  they were therefore "in
no position to complain" that the statute or the Sentencing Guidelines
were unconstitutional as applied to them.  J.A. 61.

   Five judges dissented.  They concluded that Congress did not intend
that LSD carrier mediums, such as blotter paper, should be considered
a "mixture or substance" for purposes of determining the weight of LSD
for sentencing purposes.  Even if Congress intended the weight of the
carrier medium to be included in calculating the weight of the LSD,
however, the dissenters believed that such a sentencing scheme would
offend due process principles because, in their view, it is irrational
to make the difference in a defendant's sentence turn on the weight of
an inert ingredient.  J.A. 63-72 (Cummings, J., dissenting);  id. at
73-87 (Posner, J., dissenting).

                          SUMMARY OF ARGUMENT

   The courts below correctly held that the sentence for distributing
LSD rests on the gross weight of the drug and its carrier medium, not
on the net weight of the pure drug, and that a weight-based sentencing
scheme for LSD offenses is not irrational.

   1. The Anti-Drug Abuse Act of 1986 and the Sentencing Guidelines
created a set of graduated penalties that vary according to the weight
of the "mixture or substance containing a detectable amount of" LSD,
not according to the weight of the pure drug.  Congress and the
Sentencing Commission adopted a weight-based penalty system in order
to punish severely offenders who distribute large quantities of drugs,
regardless of their purity.  The Act and the Guidelines included LSD
within that penalty scheme, and there is no reason to fashion a
special exception for LSD that is not found in the text of either the
statute or the Guidelines.

   LSD-infused blotter paper is a "mixture or substance containing a
detectable amount of" the drug, because LSD binds itself to the paper
in the application process (and therefore "mixes" with the paper) or
because the paper is designed to be ingested along with the drug (and
therefore is a "substance" containing LSD).  The role of blotter paper
in the distribution of LSD does not differ materially from the role
played by carriers in the distribution chain in the case of other
drugs.  Because a dose of LSD is infinitesimal, some carrier is
necessary for LSD to be distributed.  Blotter paper serves that role:
It allows LSD to be sold in an easily concealable, transferable, and
ingestible form.

   2. The penalty scheme established by the Anti-Drug Abuse Act of
1986 is not unconstitutional.  That scheme does not infringe a
defendant's "fundamental right to liberty," since a lawfully convicted
defendant may be sentenced to any punishment defined by law that is
not cruel and unusual.  The penalty scheme can be challenged only on
the ground that it is irrational, and this one is not.

   Congress acted rationally in requiring the courts to include the
weight of LSD-infused blotter paper when calculating a defendant's
sentence for distributing LSD.  The weight of the carrier serves as a
rough proxy for the size of the trafficker's criminal enterprise.
Moreover, any claim that a defendant's sentence does not correspond to
the particular facts of his case could also be lodged against a fixed
sentence for distributing LSD, but determinate sentences are clearly
constitutional.  Finally, the Act and the Sentencing Guidelines allow
the courts room to adjust a sentence upward or downward in order to
reflect the role a defendant played in the distribution scheme.

   Including the weight of an LSD carrier does not render the 1986 Act
unconstitutionally vague.  The text of the statute gave the defendants
fair warning that the weight of the carrier would be counted.  It is
not necessary that a statute be "definitively construed" in order for
it to overcome a claim of unconstitutional vagueness;  all that is
required is that the defendants have fair notice of how the statute
may be read.

                               ARGUMENT

   I. THE ANTI-DRUG ABUSE ACT OF 1986 AND THE SENTENCING GUIDELINES
REQUIRE THAT THE COMBINED WEIGHT OF THE LSD AND ITS CARRIER MEDIUM BE
USED IN CALCULATING THE TOTAL WEIGHT OF THE DRUG FOR SENTENCING
PURPOSES

   Trafficking in LSD is prohibited by the federal drug laws, 21
U.S.C. 812 and 841(a), and is severely punished.  Distribution of less
than one gram of LSD is punishable by up to 20 years' imprisonment, 21
U.S.C. 841(b)(1)(C);  trafficking in greater amounts brings even
stiffer penalties.  A first offender who distributes one gram or more
of a "mixture or substance containing a detectable amount of" LSD must
be sentenced to a five-year term of imprisonment and may be
incarcerated for up to 40 years.  21 U.S.C 841(b)(1)(B)(v).  A first
offender who distributes ten or more grams must receive a sentence of
ten years' imprisonment and may be confined for life.  21 U.S.C.
841(b)(1)(A)(v).

   The question in this case involves the appropriate method for
calculating a defendant's sentence under Section 841(b)(1) for an LSD
violation.  The district court based its sentence calculation on the
weight of both the pure LSD and the blotter paper that served as a
carrier medium for the drug.  The defendants maintain that Congress
and the Sentencing Commission did not intend the weight of an LSD
carrier to be used in calculating the weight of the drug for
sentencing purposes.  That is so, they contend, even though a carrier
medium such as blotter paper is ordinarily used to distribute LSD, and
even though that carrier medium can be an ordinarily is ingested along
with the drug.

   Six courts of appeals have considered the defendant's argument, and
every one has rejected it.  See United States v. Larsen, 904 F.2d 562
(10th Cir. 1990), petition for cert. pending, No. 90-5509;  United
States v. Elrod, 893 F.2d 60 (6th Cir.), cert. denied, 111 S. Ct. 104
(1990);  United States v. Bishop, 894 F.2d 981, 985-987 (8th Cir.
1990);  United States v. Daly, 883 F.2d 313, 316-318 (4th Cir. 1989),
cert. denied, 110 S. Ct. 2622 (1990);  United States v. Rose, 881 F.2d
386 (7th Cir. 1989);  United States v. Taylor, 868 F.2d 125, 127-128
(5th Cir. 1989).  /6/ Those courts have determined that the
defendants' argument is inconsistent with the text and purpose of the
Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, and
with the Sentencing Guidelines.  For the reasons given below, those
courts are correct.

   A. Sentences For LSD Offenses Are Based On The Gross Weight Of The
Drug And Its Carrier Medium, Not The Net Weight Of The Pure Drug

   1. The graduated set of penalties for LSD offenses found in the
Anti-Drug Abuse Act of 1986 makes the defendant's sentence turn on the
weight of the "mixture or substance containing a detectable amount" of
LSD that a person distributes, not the weight of the pure drug.  Thus,
the statute makes it quite clear that if the drug and the carrier
medium together can be considered a "mixture or substance," it is the
gross weight of the drug and the carrier medium that determines the
applicable penalty, not the weight of the pure drug that may be
contained in the carrier medium.

   Other provisions of the 1986 Act make clear that Congress knew how
to distinguish between the weight of a pure drug and the weight of a
"mixture or substance" containing some quantity of the drug, and that
the reference to "mixture or substance" was not simply a careless way
of referring to the amount of the pure drug distributed.  With respect
to both phencyclidine (PCP) and methamphetamine, the Act in several
places imposes penalties based either on an amount of the pure drug or
a larger amount of a "mixture or substance" containing the drug.  See
21 U.S.C. 841(b)(1)(A)(iv), (B)(iv), (B)(viii.  PCP and
methamphetamine are the only drugs for which the Act provides a
penalty gauged according to the weight of the pure drug.  The
reference to the pure weight of those drugs, and the use of a larger
amount of the "mixture or substance" containing those drugs as an
alternative basis for sentencing for PCP and methamphetamine crimes,
both indicate that where Congress referred to the weight of a "mixture
or substance" containing a drug, it meant to trigger the statutory
penalty scheme by reference to the combined weight of the drug and its
carrier medium.

   2. The genesis of the "mixture or substance" clause in the
Anti-Drug Abuse Act of 1986 reinforces the plain meaning of the text.
The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.
L. No. 91-513, Tit. II, 84 Stat. 1260-1261, established penalties for
the distribution of controlled substances according to the type 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 21 U.S.C. 841(b)(1)-(3) (1982);
H.R. Rep. No. 1444, 91st Cong., 2d Sess. Pt. 1, at 4-5, 10-11, 46-51
(1970);  S. Rep. No. 613, 91st Cong., 1st Sess. 24-26 (1969).  The
distribution of LSD, a Schedule I controlled substance, was punishable
by a maximum of five years' confinement.  21 U.S.C. 841(b)(1)(B)
(1982).

   The Controlled Substances Penalties Amendments Act of 1984, enacted
as Chapter V of the Comprehensive Crime Control Act of 1984, Pub. L.
No. 98-473, 98 Stat. 2068, modified the penalty system by introducing
the principle that the sentence should vary according to the weight of
the controlled substance that is chargeable to the defendant.  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.  21
U.S.C. 841(b)(1)(A)(iv) (Supp. II 1984).  Distribution of lesser
amounts of LSD were subject to a maximum term of 15 years'
imprisonment.  21 U.S.C. 841(b)(1)(B) (Supp. II 1984).  See S. Rep.
No. 225, 98th Cong., 1st Sess 255-259 (1983).  In each case, however,
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).

   Congress again modified the penalty system for controlled
substances in the Narcotics Penalties and Enforcement Act of 1986,
Title I of the Anti-Drug Abuse Act of 1986.  That Act adopted a
so-called "market-oriented approach" to punishing drug trafficking,
under which the total quantity of what is distributed, rather than the
amount of pure drug involved, is used to determine the length of the
sentence.  H.R. Rep. No. 845, 99th Cong., 2d Sess. Pt. 1, at 11-12, 17
(1986).  To implement that principle, Congress created terms of
imprisonment and set mandatory minimum sentences to correspond to the
weight of a "mixture or substance containing a detectable amount of"
the various Schedule I and II controlled substances, including LSD.
21 U.S.C. 841(b)(1)(A)(i)-(viii) and (B)(i)-(viii).

   Chapman maintains that the legislative history of the Anti-Drug
Abuse Act of 1986 shows that Congress did not intend to include the
weight of the LSD-infused carrier medium.  Chapman Br. 21-25.  But
Chapman does not point to anything in the legislative history of that
Act to support that claim.  Instead, he relies on a passage in a 1981
Senate Report on a bill that Congress did not enact into law, the
proposed Criminal Code Reform Act of 1981 (S. 1630).  In that report,
the Senate Judiciary Committee proposed amending the federal drug laws
to base the penalty for LSD trafficking on the weight of the pure
drug.  In so doing, the Committee noted that five grams of LSD is
"approximately 100,000 times the average user dosage." S. Rep. No.
307, 97th Cong., 1st Sess. 868 (1981).  That estimate is correct,
Chapman argues, only if the weight of LSD carriers is not counted.
Chapman Br. 23.  Chapman therefore maintains that Congress must have
assumed that the mandatory minimum sentencing provisions of the 1986
Act would not be triggered by "low level dealers" like himself.
Chapman Br. 24.

   That argument is unpersuasive.  The cited passage came in the midst
of a discussion about amending the penalty scheme in the 1970 Act in
order to correlate the penalty with the amount of pure drug
distributed.  S. Rep. No. 307, supra, at 867-869.  Congress adopted a
"pure drug" sentencing scheme when it subsequently enacted the
Controlled Substances Penalties Amendments Act of 1984.  See 21 U.S.C.
841(b)(1) (Supp. II 1984);  S. Rep. No. 225, supra, at 225-259.  But
the Anti-Drug Abuse Act of 1986 rejected the principle that a
defendant's punishment should be gauged by the quantity of the pure
drug involved.  Since the 1986 Act modified the 1984 statute to make a
"mixture or substance containing a detectable amount of" LSD the
relevant quantity, there is no reason to assume that Congress
continued to believe that sentences for LSD offenses should be
graduated according to the amount of pure LSD sold, as had been the
case under the 1984 statute.  /7/

   3. Informulating the scheme for sentencing LSD offenders, the
Sentencing Commission followed Congress's lead and graduated sentences
according to the weight of the "mixture or substance" containing the
controlled substance, rather than the actual weight of the controlled
substance itself.  The Commission devised a Drug Quantity Table to set
the offense levels for different quantities of drugs.  See Guidelines
Section 2D1.1(c).  That Table incorporates the "mixture or substance"
formulation from the Anti-Drug Abuse Act of 1986 to calculate the
weight of a drug for the various base offense levels under that Table.
 See United States Sentencing Comm'n, Guidelines Manual 2.47 n.*
(1990).  /8/ See also id. at 2.48, Application Note 1 ("'Mixture or
substance' as used in this guideline has the same meaning as in 21
U.S.C. Section 841.");  id. at 2.49, Application Note 10 ("The
Commission has used the sentences provided in, and the equivalences
derived from, the statute (21 U.S.C. Section 841(b)(1)), as the
primary basis for the guideline sentences.");  id. at 2.53
(distinguishing between "the weight of the actual controlled
substance, and * * * the weight of the mixture or substance containing
the controlled substance").

   The Sentencing Guidelines also contain a Conversion Table for use
in determining the defendant's base offense level in cases where the
number of doses, but not the weight of a drug, is known.  The
Sentencing Commission specifically noted that, in connection with LSD,
"the weight per unit shown is the weight of the actual controlled
substance, and not generally the weight of the mixture or substance
containing the controlled substance.  Therefore, use of this table
provides a very conversative estimate of the total weight." Id. at
2.53 (emphasis added).  See App., infra, 2a.  As the court below
recognized, J.A. 48-49, that Table shows that the Sentencing
Commission believes that the known weight of an LSD carrier must be
included as part of the weight of the "mixture or substance" under the
Act and the Guidelines.

   Accordingly, it is beyond serious dispute that both Congress and
the Sentencing Commission have required that courts fashion sentences
for LSD offenders based on the weight of the drug and the carrier
medium involved, rather than the weight of the pure drug itself.  In
light of the statutory language and the corresponding approach
employed in the Sentencing Guidelines, it is not surprising that the
courts of appeals have consistently rejected the argument that a
sentence should rest on the net weight of the pure controlled
substance, as Chapman and Marshall suggest.  /9/

   B. LSD-infused Blotter Paper Constitutes "A Mixture Or Substance
Containing A Detectable Amount" Of LSD

   Neither the 1986 Act nor the Sentencing Guidelines define the terms
"mixture" and "substance." Absent some clear indication to the
contrary, those terms therefore must be given their ordinary meaning.
See Moskal v. United States, 111 S. Ct. 461, 465 (1990);  Russello v
United States, 464 U.S. 16, 21 (1983).  A "mixture" is defined to
include "a portion of matter consisting of two or more components that
do not bear a fixed proportion to one another and that however
thoroughly commingled are regarded as retaining a separate existence,"
while a "substance" includes "a distinguishable kind of physical
matter." Webster's Third New International Dictionary 1449, 2279
(1986).  Those definitions are clearly broad enough to include
LSD-infused blotter paper as a "mixture or substance containing a
detectable amount of" LSD.

   LSD is applied to blotter paper in a solvent, such as alcohol,
which is absorbed into the paper and ultimately evaporates.  When the
solvent evaporates, the LSD is left behind in a form that can be said
to "mix" with the paper.  J.A. 44-45;  Tr. 48.  Alternatively,
LSD-infused blotter paper can be viewed as a "substance" that
"contain(s)" the LSD, since the entire unit in effect constitutes a
form of LSD that is convenient to distribute and ingest.  United
States v. Daly, 883 F.2d at 317;  United States v. Bishop, 704 F.
Supp. at 911.  Accordingly, whether the LSD-infused blotter paper is
viewed as a "mixture," as the Seventh Circuit concluded, J.A. 44-45,
or a "substance," as the Fourth and Eighth Circuits held, United
States v. Bishop, 894 F.2d at 986;  United States v. Daly, 883 F.2d at
317, the entire unit is a "mixture or substance containing a
detectable amount" of LSD within the meaning of the statute and the
Sentencing Guidelines, and the weight of the carrier medium must
therefore be added to the weight of the pure drug to determine the
appropriate penalty.

   Chapman argues (Br. 16-17) that it is wrong to treat blotter paper
as a "cutting agent," because the paper does not increase the number
of doses that can be distributed.  In fact, however, the use of
blotter paper as a carrier medium has exactly that effect.  It makes
it possible to divide a small volume of a highly potent drug into a
large number of easily separable units containing a single dose --
something that could not easily be done by distributing the drug in
pure form, straight from the bottle.

   Pure LSD is extremely potent;  only a tiny amount is necessary to
achieve the hallucinogenic effect that users seek.  "Single dosage"
units of LSD are so small that the liquid chemical must be added to
some carrier for the drug to be distributed at the street level.  /10/
In order for it to be marketable, therefore, pure liquid or solid LSD
must be converted into an easily carried, dispensed, and ingested
form.

   Blotter paper fills that role perfectly.  United States v. Bishop,
894 F.2d at 985;  United States v. Rose, 881 F.2d at 388;  United
States v. Marshall, 706 F. Supp. at 652;  T. Cox, supra, at 308-309.
Because it is so well suited to carrying very small quantities of LSD
in a readily distributable, concealable, and ingestible form, blotter
paper serves a vital function in the wholesale and retail distribution
of LSD.  See United States v. Bishop, 894 F.2d at 985 ("The blotter
paper serves the purpose of making the LSD ready for retail sale and
ingestion by the user.").  The Fourth Circuit was therefore correct in
noting that "LSD 'carriers' serve precisely the same function as the
more familiar 'cutting agents' which are typically used with other
drugs," since carriers enable a dealer to distribute the drug in large
quantities in an easily ingestible form.  United States v. Daly, 883
F.2d at 318.  "What is important is that the blotter paper itself can
be and is ingested with the drug much the same as any dilutant or
cutting agent would be ingested." Ibid. (quoting United States v.
Bishop, 704 F. Supp. at 911).  See also United Stats v. Elrod, 898
F.2d at 62;  United States v. Bishop, 894 F.2d at 985.  Treating
blotter paper as a "mixture or substance containing a detectable
amount of" LSD is consistent with the way that carrier mediums and
cutting agents are treated in the case of other controlled substances.

   Congress made clear in the 1986 Act that it intended the penalties
to be graduated according to the weight of the drugs in the form in
which they were found -- cut or uncut, pure or impure, ready for
wholesaling, or ready for distribution at the retail level.  See H.R.
Rep. No. 845, supra, Pt. 1, at 12 (quantities of drugs triggering the
new threshold penalties "are not necessarily quantities of pure
substance"), 17-18.  For LSD, that means including the weight of a
carrier medium such as blotter paper if the drug is found in a state
ready for retail distribution, as it was in this case.

   Chapman argues that the "mixture or substance" clause cannot be
given its dictionary meaning because, if it is, the clause could be
read to include carriers like "a sugar cube, a heavy jar, or a Buick."
Chapman Br. 12.  For that reason, he argues, the "mixture or
substance" clause is ambiguous.  That argument is unpersuasive.  To
paraphrase United States v. Monsanto, 109 S. Ct. 2657, 2663 (1980),
the fact that the Act reaches a carrier like a sugar cube "'does not
demonstrate ambiguity' in the statute;  'It demonstrates breadth.'" At
the same time, the Act does not reach "substances" like bottles and
cars because they are not ingested along with the drug.  When LSD is
carried in a jar, the LSD and the jar are not a "mixture or substance"
any more than cocaine and tinfoil are a "mixture or substance" when
cocaine is carried in a tinfoil packet.  The court of appeals
therefore correctly recognized that one gram of LSD in a glass bottle
that weighs 50 grams is just one gram of LSD, not 51 grams of a
"mixture or substance" containing LSD.  J.A. 44.

   C. Neither The Rule Of Lenity Nor The Canon Of Construing Laws To
Avoid Unconstitutionality Applies In This Case

   1. Chapman invokes the rule of lenity, claiming that since it is
unclear whether a carrier medium is a "mixture or substance"
containing a detectable amount of LSD, the Act should be construed to
omit any reliance on the carrier medium when determining the total
weight of LSD-infused blotter paper.  But the rule of lenity is not
applicable unless there is a "grievous ambiguity or uncertainty in the
language and structure of the Act," Huddleston v. United States, 415
U.S. 814, 831 (1974), such that even "(a)fter (a court has) 'seize(d)
everything from which aid can be derived * * *' (it is still) left
with an ambiguous statute." United States v. Bass, 404 U.S. 336, 347
(1971) (quoting United States v. Fisher, 6 U.S. (2 Cranch) 358, 386
(1805)).  Lenity "only serves as an aid for resolving an ambiguity;
it is not to be used to beget one.  * * * The rule comes into
operation at the end of the process of construing what Congress has
expressed, not at the beginning as an overriding consideration of
being lenient to wrongdoers." Callanan v. United States, 364 U.S. 587,
596 (1961).  See also, e.g., Moskal v. United States, 111 S. Ct. at
465;  Russello v. United States, 464 U.S. at 29;  United States v.
Turkette, 452 U.S. 576, 587-588 n.10 (1981).

   The statute and the Sentencing Guidelines direct that the weight of
any ingestible LSD carrier medium containing a detectable amount of
LSD be included for sentencing purposes;  the legislative history of
the Act does not undermine that conclusion in any way;  and a
straightforward reading of the statute does not produce a result "so
'absurd or glaringly unjust,'" United States v. Rodgers, 466 U.S. 475,
484 (1984) (quoting Sorrells v. United States, 287 U.S. 435, 450
(1932)), as to raise a "reasonable doubt" about Congress's intent,
Moskal v. United States, 111 S. Ct. at 465.  Under these
circumstances, there is no occasion to resort to the rule of lenity.

   In an effort to show that the "mixture or substance" clause is
ambiguous, Chapman relies on the fact that one district court has held
that the clause excludes LSD-infused blotter paper.  Chapman Br. 18,
citing United States v. Healy, 729 F. Supp. at 142-144.  This Court,
however, recently rejected precisely that type of claim in Moskal v.
United States, supra.  In Moskal, the Court made clear that a law
cannot be deemed "ambiguous" simly because there is "a division of
judicial authority" over its proper interpretation;  otherwise, "one
court's unduly narrow reading of a criminal statute would become
binding on all other courts, including this one." 111 S. Ct. at 465.
That one district court has disagreed with six circuits over the
interpretation of Section 841 therefore hardly means that the law is
ambiguous;  indeed, the unanimity of the courts of appeals on the
subject tends to suggest just the opposite.

   As other support for his argument, Chapman claims that "(s)ome
members of Congress agree that the use of the phrase 'mixture or
substance containing a detectable amount of LSD' was less than
precise." Chapman Br. 18.  Chapman relies upon two items:  (1) a
letter by Sentencing Commission Chairman Wilkins to Senator Biden in
which Chairman Wilkins said that Congress might wish to clarify 21
U.S.C. 841 by expressly including or excluding LSD carrier mediums,
and (2) two bills introduced by Senators Biden and Kennedy that would
have excluded LSD carrier mediums from the "mixture or substance"
clause.

   In 1989, Senator Biden forwarded to Sentencing Commission Chairman
Wilkins a letter written on behalf of Sidney Bishop, the defendant in
United States v. Bishop, supra, complaining about the inclusion of
carrier mediums in the calculation of sentences for LSD offenses.
Chairman Wilkins replied by explaining that the Sentencing Commission
had previously solicited public comment on this issue, 54 Fed. Reg.
9136 (1989), and that "(a)fter thorough consideration, it was the
Commission's view that the term mixture under the guidelines should be
defined as having the same meaning as under the Controlled Substances
Act." Marshall C.A. App. 164.  Chariman Wilkins also stated that "(i)t
is indisputable that, in general, under the Anti Drug Abuse Act of
1986, Congress rejected linking punishment levels to drug purity," yet
"(w)ith respect to LSD, it was unclear whether Congress intended the
carrier to be considered as packaging material, or since it is
commonly consumed along with the illicit drug, as a dilutant
ingredient in the drug mixture." Id. at 165;  J.A. 46-47.  Chairman
Wilkins suggested that Congress may wish to clarify its intent by
expressly choosing one approach or the other.  Marshall C.A. App. 165;
 J.A. 47.

   Senator Biden thereafter introduced an amendment to the
Administration's crime bill, S. 1711, 101st Cong., 1st Sess. (1989),
that would have amended the Anti-Drug Abuse Act of 1986 by omitting
the weight of and LSD carrier medium.  See 135 Cong. Rec. S12,748
(daily ed. Oct. 5, 1989) (prepared statement describing Amendment No.
976).  The bill passed by the Senate, however, did not contain Senator
Biden's amendment.  135 Cong. Rec. S13,433-S13,469 (daily ed. Oct. 16,
1989).  Senator Kennedy introduced a different bill that also would
have excluded carrier mediums, see 136 Cong. Rec. S7069-S7070 (daily
ed. May 24, 1990) (Amendment No. 1716 to S. 1970), but that amendment
likewise did not become law.

   All this is ultimately of little weight.  As this Court has stated
time an again, subsequent legislative history is a treacherous guide
to congressional intent, especially if it takes the form of amendments
proposed by individual legislators.  See Pierce v Underwood, 487 U.S.
552, 566-567 (1988);  Quern v. Mandley, 436 U.S. 725, 736 n.10 (1978);
 Illinois Brick Co. v. Illinois, 431 U.S. 720, 733-734 & n.14 (1977);
Sullivan v. Finkelstein, 110 S. Ct. 2658, 2667 (1990) (Scalia, J.,
concurring in part).  As the court of appeals recognized, the
materials Chapman cites reflect only an "ongoing debate()," and not
"the views of (a subsequent) Congress." J.A. 46.  In any event, the
fact that clarifying legislation has been proposed does not mean that
the statutory text in question provides no guidance and must be
construed in favor of the defendant.  Congress often proposes and
adopts clarifying amendments to statutes to resolve questions of
statutory construction without the need for litigation.  But
Congress's efforts to save the courts from sometimes difficult
exercises in statutory construction should not be parlayed into a
maxim that the rule of lenity must be applied any time Congress -- or
some Members of Congress -- have proposed clarifying legislation of
some kind.

   The same principle applies to the observations of Chairman Wilkins
regarding the "mixture or substance" clause.  In his letter to Senator
Biden, Chairman Wilkins acknowledged that it was open to debate
whether Congress intended to include LSD carrier mediums within the
"mixture or substance" clause of Section 841(b)(1).  For that reason,
he suggested that Congress might wish to settle the matter by
legislation.  But Chairman Wilkins' reference to the failure of the
statute to resolve that issue explicitly does not mean that he, or the
Sentencing Commission, regarded the "mixture or substance" clause as
insolubly ambiguous as applied to LSD.  /11/

   2. Chapman invokes the canon initially and most prominently set
forth in Church of the Holy Trinity v. United States, 143 U.S. 457
(1892), that the "spirit" of a law should prevail over its "letter"
when it appears unlikely that Congress intended the harsh outcome that
the language seems to compel.  Chapman maintains that the "mixture or
substance" clause should not be read in "(a) lockstep" fashion that
its text dictates.  Chapman Br. 21 n.24;  id. at 18-21.  His appeal to
the spiritual dimension of the law scarcely justifies disregarding the
plain meaning of statutory text and the Guidelines.

   Because LSD is sold by the dose, not by its weight, Chapman argues
that the weight of an LSD carrier should not be counted for sentencing
purposes.  But "(t)he short answer is that Congress did not write the
statute that way." Russello v. United States, 464 U.S. at 23.
Congress rejected a "pure drug" system of sentencing in favor of a
system that depends on the combined weight of the drug and its
carriers medium or dilutant, regardless of the amount of the pure drug
-- or the number of doses -- that may be contained in a carrier of a
particular weight.

   Chapman maintains that Congress could not have intended to include
the weight of an LSD carrier medium for sentencing purposes, because
the carrier will constitute nearly all of the weight of the entire
unit and because the weight of the unit will vary greatly depending on
the choice of carriers having different weights, such as blotter
paper, gelatin, or sugar cubes.  Chapman Br. 9-14.  But the same point
can be made about drugs like heroin and cocaine, as to which Congress
clearly intended the dilutant or carrier medium to be included in the
weight for sentencing purposes.

   In the case of heroin or cocaine, inactive ingredients, or "cutting
agents," are combined with the pure drug, and the mixture is then sold
as a heavily diluted form of the drug.  In some cases, the
concentration of the drug in the carrier is very low.  E.g., United
States v. Buggs, 904 F.2d 1070 (7th Cir. 1990) (1.2% heroin);  United
States v. Dorsey, 591 F.2d 922 (D.C. Cir. 1979) (2% heroin);  United
States v. Smith, 601 F.2d 972 (8th Cir.) (2.7% and 8.5% heroin
quantities), cert. denied, 444 U.S. 899 (1979);  J. Platt, Heroin
Addiction:  Theory, Research, and Treatment 48-50 (2d ed. 1986) (2-3%
heroin).  Those concentrations are somewhat higher, but still of the
same order of magnitude as the concentration of the LSD in the blotter
paper sold by Chapman (0.877%) and Marshall (0.59%).  J.A. 41 & n.1.

   Moreover, as in the case of LSD when different carrier mediums are
used, the level of purity of heroin and cocaine on the market varies
greatly.  E.g., United States v. Monu, 782 F.2d 1209 (4th Cir. 1986)
(14-18% heroin);  United States v. Mendes, 912 F.2d 434 (10th Cir.
1990) (47% heroin);  United States v. Beissel, 901 F.2d 1467 (8th Cir.
1990) 77% cocaine);  United States v. Williams, 894 F.2d 208 (6th Cir.
1990) (87% cocaine);  Office of Intelligence, DEA, Domestic Monitor
Program ii (Apr.-June 1990) (purity of retail purchases of heroin
ranged from 0.6% to 75.9%);  id. at 6 (heroin purity in ten selected
cities ranged from 3.1% in Baltimore to 41.4% in New York).  Of
course, decreasing heroin or cocaine purity by adding increasing
amounts of a cutting agent can dramatically increase the total weight
of the drug, and thus increase the sentencing level under a
weight-based sentencing scheme.  Yet Chapman does not suggest that
Congress did not intend to adopt a weight-based approach in the case
of those drugs.  Since the effect is similar in the case of LSD, the
dilution rate in the case of that drug is not a sufficient reason for
disregarding the text of Section 841 with respect to LSD alone.

   3. Finally, Chapman argues (Br. 28) that carriers should be
excluded from the "mixture or substance" clause based on the maxim
that a court should strive to interpret a statute in a way that will
avoid an unconstitutional construction.  That canon is "quite often
useful in close cases, or when statutory language is ambiguous," but
it is "not a license for the judiciary to rewrite language enacted by
the legislature." United States v. Monsanto, 109 S. Ct. at 2664
(quoting United States v. Albertini, 472 U.S. 675, 680 (1985)).  That
canon comes into play only if there are "fair alternatives" to the
supposedly unconstitutional interpretation, United States v. Rumely,
345 U.S. 41, 45 (1953), or a different construction of a law is
"fairly possible," Crowell v. Benson, 285 U.S. 22, 62 (1932).  See
also United States v. Batchelder, 442, U.S. 114, 122 (1979);  Swain v.
Pressley, 430 U.S. 372, 377-378 & n.11 (1977).  But this body of
authority is unavailing here;  the text of the Act is simply not, for
the reasons stated above, insolubly ambiguous, and its application
prescribed by the court of appeals is constitutional, for the reasons
stated below.

   II. CONGRESS ACTED RATIONALLY IN INCLUDING THE WEIGHT OF LSD
CARRIER MEDIUMS FOR SENTENCING PURPOSES

   A. A Convicted Defendant Does Not Have A "Fundamental Right" To
Have The Courts At Sentencing Reassess The Appropriate Penalty For His
Crime

   Chapman and Marshall maintain that the penalty scheme of the
Anti-Drug Abuse Act of 1986 is unconstitutional.  They contend that a
criminal defendant has a "fundamental right to fair treatment in
sentencing," that a sentencing scheme must be subject to "strict
scrutiny," and that "a legislative scheme that impairs that right can
thus survive only if it is justified by a compelling and substantial
government interest." Chapman Br. 29-32;  Marshall Br. 83-88.

   That contention is unsupportable.  This Court has consistently
applied a "rational basis" standard of review in assessing the
constitutionality of sentencing provisions.  /12/ That standard of
review follows quite naturally from the general principles describing
the operation of the criminal adjudicatory process.  Every person has
a fundamental right to liberty (and life) in the sense that the
government may not punish a person unless and until it proves his
guilt beyond a reasonable doubt at a criminal trial in accordance with
relevant guarantees.  Bell v. Wolfish, 441 U.S. 520, 535-536 & n.16
(1979).  See United States v. Salerno, 481 U.S. 739, 746-747 (1987).
But the corollary to that rule is that if a person has been fairly
convicted of a crime, he is eligible for and the government can impose
whatever punishment is authorized by statute for his offense, as long
as that penalty is not cruel and unusual.  McMillan v. Pennsylvania,
477 U.S. 79, 92 n.8 (1986);  Meachum v. Fano, 427 U.S. 215, 224
(1976).  /13/ Accordingly, once a defendant has been validly convicted
of a crime, the Due Process Clause requires no more than that the
statutory scheme under which he is sentenced not be arbitrary or
irrational.  /14/

   B. Including The Weight Of An LSD Carrier Medium Does Not Violate
The Due Process Clause By Making The Defendant's Sentence Hinge On An
Arbitrary Factor

   Congress devised the penalty scheme in the Anti-Drug Abuse Act of
1986 with the goal of severely punishing large-volume drug
traffickers.  H.R. Rep. No. 845, supra, Pt. 1, at 12, 17.  The Act's
penalty scheme assigns more severe penalties to the distribution of
larger quantities of drugs, and therefore serves the purpose of
attacking large-scale drug distribution at any level.  By measuring
the quantity of the drugs according to the "street weight" of the
drugs in the diluted form in which they are sold, rather than
according to the net weight of the active component, the statute and
the Sentencing Guidelines increase the penalty for persons who possess
large quantities of drugs, regardless of their purity.  That is a
rational sentencing scheme, as every court of appeals that has
addressed the issue has held.  /15/

   First, it is typically the case that, up to the point that the
market will allow, diluting a drug increases the trafficker's profits
and allows him to distribute his wares more widely.  Tying the penalty
to the amount of the substance in its diluted form is therefore
consistent with combatting the evils of wide distribution and large
profit.  Second, many narcotics prosecutions must be brought without
an opportunity to test the drugs.  For example, in a conspiracy or
attempt case, the drugs may never actually be produced or seized, and
it may therefore be impossible to know the purity of the substance
that was to be supplied.  It is far simpler, in a case in which a
defendant agrees to produce a kilogram of cocaine, to charge him with
responsibility for selling a kilogram of the drug, without inquiring
whether the drug was likely to be substantially diluted when he
produced it.

   Although tying the penalty to the combined weight of the drug and
the carrier medium might be viewed as resulting in lighter sentences
for persons at the top of the distribution chain, who often possess
drugs in purer form, that is not necessarily so, since the statute and
the Sentencing Guidelines contain various measures that work to
increase the penalties for high-level traffickers.  The Act creates a
broad sentencing range for distributing a particular amount of LSD,
and the court can sentence the defendant within that range in a manner
reflecting his status.  Major drug traffickers can be prosecuted for
conducting a "continuing criminal enterprise." See 21 U.S.C. 848;
Garrett v. United States, 471 U.S. 773 (1985).  Similarly, the
Sentencing Guidelines allow a court to sentence a defendant at the
higher end of the indicated range, or to depart upward from that
range, if the drug sold is "unusually pure" and "indicate(s) a
prominent role in the criminal enterprise and proximity to the source
of the drugs." Guidelines Manual 2.48-2.49.  See United States v.
Iguaran-Palmar, No. 89-2143 (1st Cir. Feb. 4, 1991), slip op. 5-6.
The Sentencing Guidelines also require the court to increase the
defendant's base offense level if he was "an organizer or leader" or a
"manager or supervisor" of a criminal enterprise, Sentencing
Guidelines Section 3B1.1 (a)-(c), if he is a "career offender," id.
Section 4B1.1, or if he makes his living from crime, id. Section
4B1.3.  Accordingly, the penalty scheme is not irrational because,
acting alone, the "mixture or substance" clause may result in higher
penalties for traffickers who are lower on the distribution chain.

   The statute and the Sentencing Guidelines also operate rationally
in the case of LSD.  Congress could have set the penalty scale based
on the weight of the pure drug or the approximate number of doses
sold, but having chosen a weight-based approach instead, it was not
irrational for Congress to include the weight of the carrier medium
for LSD.  As in the case of other drugs, the weight of the drug and
carrier medium that the trafficker uses to distribute it serves as a
rough proxy for the size of the defendant's criminal enterprise.

   Chapman and Marshall do not claim that the sentencing scheme
devised by Congress and the Sentencing Commission has produced an
arbitrary array of sentences.  Nor did their motions in the district
court contain any such proof.  /16/ Instead, they challenged the Act
on its face on the ground that it will inevitably lead to lengthy and
arbitrary punishments by including the weight of an LSD carrier.
Chapman and Marshall contend that the penalty scheme of the 1986 Act
is irrational because LSD is sold by the dose, not by weight.  A
person who uses blotter paper instead of gelatin to distribute LSD,
they argue, commits the same crime, sells the same number of doses and
amount of the drug, receives the same profit, inflicts the same
societal injury, deserves the same moral blame, and, therefore, should
receive the same punishment.  Yet a person who uses blotter paper
instead of gelatin can receive a more severe sentence, because paper
is the heavier of the two mediums.  Chapman Br. 29-44;  Marshall Br.
66-81, 83-97.

   There are several answers to this claim.  First, it is the
trafficker who selects the carrier for the drug.  He therefore has
control over the extent to which he is exposed to greater sentences
because of his use of a heavier carrier.

   Second, while curious hypothetical cases can be imagined, involving
very heavy carriers and very little LSD (a single does on a plate of
lasagna), those hypothetical cases are of little value in addressing a
claim by persons such as the defendants in this case, who used a
standard LSD carrier.  See J.A. 61 (noting that blotter paper "seems
to be the norm these days").  No First Amendment concern is remotely
implicated here, so neither Chapman nor Marshall has standing to
challenge the sentence that a trafficker would receive for using much
heavier carriers to distribute LSD.  See, e.g., Osborne v. Ohio, 110
S. Ct. 1691, 1697 & n.8 (1990);  United States v. Salerno, 481 U.S. at
745.

   Finally, the same objection could be lodged against a statute that
imposed a fixed sentence for distributing any quantity of LSD, in any
form, with any carrier.  Had Congress enacted such a statute, opting
for a pure determinate sentencing system, a person who sold 1 dose of
LSD would receive the same punishment as one who sold 10,000 doses.
Although such a sentencing scheme would be lacking in flexibility, it
would clearly be constitutional.  Congress has the power to define
criminal punishments and to deny the courts any sentencing discretion.
 This Court expressly so held in Ex parte United States, 242 U.S. 27,
42 (1916), reasoning that "the authority to define and fix the
punishment for crime is legislative." As has been noted, "in
non-capital cases, the (once) established practice of individualized
sentences rests not on constitutional commands, but on public policy
enacted into statutes." Lockett v. Ohio, 438 U.S. 586, 604-605 (1978)
(plurality opinion).  See also Mistretta v. United States, 488 U.S.
361, 364 (1989).  /17/

   The current sentencing scheme for narcotics violations contains
elements of both determinate and discretionary sentencing.  Like any
determinate sentencing scheme, the Anti-Drug Abuse Act of 1986 and the
corresponding Sentencing Guidelines may lead to seemingly inequitable
results in some cases.  But that is not a sufficient reason to hold
the sentencing scheme unconstitutional.  As the Court explained in
City of Dallas v. Stanglin, 490 U.S. 19, 26-27 (1989) (quoting
Dandridge v. Williams, 397 U.S. 471, 485 (1970) (citations omitted)),
"(i)f the classification has some reasonable basis, it does not offend
the Constitution simply because the classification is not made with
mathematical nicety or because in practice it results in some
inequality.  The problems of government are practical ones and may
justify, if they do not require, rough accommodations -- illogical, it
may be, and unscientific."

   At the same time, the penalty scheme for the distribution of LSD is
not as draconian or inflexible as Chapman and Marshall suggest.  The
Sentencing Reform Act of 1984 and the Sentencing Guidelines grant the
courts the discretion to depart downward from the Guidelines
sentencing range in appropriate cases.  18 U.S.C. 3553(b);  Sentencing
Guidelines Section 5K2.0 (Policy Statement).  Moreover, the Act and
the Guidelines authorize a court under proper circumstances to depart
downward even from the sentence imposed by a mandatory minimum
sentencing law.  If a defendant offers the government substantial
assistance and the government moves for a reduction in the defendant's
sentence, a district court can reduce a defendant's sentence below a
statutory mandatory minimum provision.  18 U.S.C. 3553(e);  Sentencing
Guidelines Section 5K1.1 (Policy Statement).  Those provisions can
soften the effects of a rigid sentencing scheme.  Indeed, that is what
happened in this case, where Chapman, Schoenecker, and Brumm all
benefited from those departure provisions.  The government filed a
motion under Sentencing Guidelines Section 5K1.1, asking the district
court to reduce their sentences below the Guidelines sentencing range,
and the court did so.  Thus, as illustrated by the sentences imposed
in this case, the inclusion of the weight of the carrier medium in
calculating the statutory and Guidelines offense level does not
necessarily produce results so arbitrary or irrational as to violate
the Due Process Clause.

   C. Including The Weight Of An LSD Carrier Medium As Part Of The
Statutory "Mixture Or Substance" Does Not Render The Statute
Unconstitutionally Vague

   Marshall maintains that including the weight of an LSD carrier for
sentencing pirposes renders the statute unconstitutionally vague.
Marshall Br. 81-83.  That claim clearly lacks merit.

   Because Section 841 does not infringe First Amendment freedoms,
Marshall's challenge must be evaluated in light of the facts of his
case.  The relevant issue is whether he had fair notice that he would
be subject to sentencing on the basis of the combined weight of the
LSD and the carrier medium.  United States v. Powell, 423 U.S. 87, 92
(1985);  United States v. Mazurie, 419 U.S. 544, 550 (1975).  If he
did, he cannot complain that the Act could be unconstitutionally vague
when applied to others.  Hoffman Estates v. The Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 (1982).

   Marshall had such notice.  The "mixture or substance" clause is
sufficiently clear "to give a person of ordinary intelligence fair
notice" that his contemplated conduct is covered by the statute.
United States v. Harriss, 347 U.S. 612, 617 (1954).  Moreover, in
1987, a year before Marshall's offense, the Eighth Circuit had
indicated in United States v. McGeehan, 824 F.2d at 681, that the
Anti-Drug Abuse Act of 1986 required the courts at sentencing to
include the weight of an LSD carrier, and no court had held to the
contrary.  Finally, Marshall does not suggest that in deciding to use
blotter paper as a carrier medium, he relied on his belief that any
penalty he would suffer would be based only on the weight of the pure
LSD that he was distributing, rather than the combined weight of the
drug and the paper.  /18/

   Marshall contends that the statute was impermissibly vague because
it had not yet been "definitively construed" when he distributed LSD.
Marshall Br. 82.  Under that test, however, no statute could ever
afford fair notice until it had been construed by this Court.  No
decision by this Court supports that conclusion, and United States v.
Rodgers, 466 U.S. at 484, is to the contrary.  Rodgers held that a
defendant had fair notice of the meaning of a statute even though the
court of appeals for the circuit in which the charged conduct took
place had previously ruled that that conduct was not a crime.
Marshall's claim of lack of fair notice falls, a fortiori, in light of
Rodgers.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   PAUL J. LARKIN, JR.

      Assistant to the Solicitor General

   FEBRUARY 1991

   /1/ Marshall was convicted of distributing 11,751 doses of LSD.
Marshall has filed a separate certiorari petition (No. 90-929) seeking
review of the judgment below, but he is also a respondent in this
case, pursuant to this Court's Rule 12.4, and he has filed a separate
brief as respondent supporting petitioners.  For the sake of clarity
and convenience, we will use the terms "Chapman" and "Marshall" to
refer to the two cases and the two briefs.

   /2/ Those effects sometimes manifest themselves in psychotic
states, bizarre or violent behavior, or attempts at suicide.  In most
cases the psychosis clears within hours or days, but in some cases it
can persist for months.  T. Cox et al., Drugs and Drug Abuse:  A
Reference Text 86-89, 95-97, 307-315 (1983);  A. Goodman et al.,
Goodman and Gilman's The Pharmacological Basis of Therapeutics 562-565
(7th ed. 1985);  A. Hoffmann, LSD:  My Problem Child 45, 67-70 (1983).

   /3/ "Tr." refers to the trial transcript in the case of respondent
Marshall.  That record was before the court of appeals, because the
court consolidated Marshall's case with Chapman's.

   /4/ In forensic chemistry, the term "dose" or "dosage unit" refers
to a tablet, a capsule, or a piece of paper that is used to distribute
a drug.  Tr. 40.

   /5/ For other descriptions of how LSD is prepared, distributed, and
ingested, see United States v. Larsen, 904 F.2d 562, 563 (10th Cir.
1990), petition for cert. pending, No. 90-5509;  United States v.
Elrod, 898 F.2d 60, 61 (6th Cir.), cert. denied, 111 S. Ct. 104
(1990);  United States v. Bishop, 894 F.2d 981, 985-987 (8th Cir.
1990), aff'g 704 F. Supp. 910, 911 (N.D. Iowa 1989);  United States v.
Daly, 883 F.2d 313, 317-318 (4th Cir. 1989), cert. denied, 110 S. Ct.
2622 (1990);  United States v. Rose, 881 F.2d 386, 388 (7th Cir. 1989)
United States v. Healy, 729 F. Supp. 140, 141 (D.D.C. 1990), appeal
pending (D.C. Cir.);  United States v. Marshall, 706 F. Supp. 650,
651-652 (C.D. Ill. 1989), aff'd, 908 F.2d 1312 (7th Cir. 1990) (en
banc) (decision below), cert. granted sub nom. Chapman v. United
States, No. 90-5744.

   /6/ One district court has ruled to the contrary.  United States v.
Healy, 729 F. Supp. 140 (D.D.C. 1990).  The government has taken an
appeal from that ruling.

   /7/ Chapman cites United States v. McGeehan, 824 F.2d at 681, to
support his argument, Chapman Br. 25, but that case involved the 1984
statute, not the 1986 Act.  In United States v. Bishop, 894 F.2d at
985-987, the Eighth Circuit rejected Chapman's submission.

   /8/ The footnote accompanying the Drug Quantity Table in Sentencing
Guidelines Section 2D1.1 states:

         Unless otherwise specified, the weight of a controlled
      substance set forth in the table refers to the entire weight of
      any mixture or substance containing a detectable amount of the
      controlled substance.  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.  In the case of a mixture
      or substance containing PCP or methamphetamine, use the offense
      level determined for the entire weight of the mixture or
      substance or the offense level determined by the weight of the
      pure PCP or methamphetamine, whichever is greater.

Guidelines Manual Drug Quantity Table 2.47 n.*.

   The version of this footnote in the original Guidelines Manual
Section 2D1.1(a)(3) Drug Quantity Table 2.39 n.* (1987) referred to a
"mixture of a compound" (emphasis added), not a "mixture or a
compound." The use of the term "of" in the original Guidelines Manual
was obviously a typographical error, since the Commission used the
phrase "mixture or compound" in the following clause of the same
footnote (emphasis added), and since the Anti-Drug Abuse Act, on which
that Sentencing Guideline provision is modeled, is framed in the
disjunctive.  The 1990 version of the Guidelines has corrected the
error.

   /9/ E.g., United States v. Dorsey, Nos. 90-1214 et al. (8th Cir.
Dec. 24, 1990), slip op. 6-9 & n.5 (PCP);  United States v. Touby, 909
F.2d 759, 772-773 (3d Cir. 1990) (4-methylaminorex ("Euphoria")),
cert. granted, No. 90-6282;  United States v. McKeever, 906 F.2d 129,
133 (5th Cir. 1990) (phenylacetone), cert. denied, No. 90-5917 (Jan.
22, 1991);  United States v. Mueller, 902 F.2d 336, 345 (5th Cir.
1990) (methamphetamine);  United States v. Skelton, 901 F.2d 1204 (4th
Cir. 1990) (PCPy, an analog of PCP);  United States v. Meitinger, 901
F.2d 27, 29 (4th Cir.) (dilaudid), cert. denied, 111 S. Ct. 519
(1990);  United States v. Elrod, 898 F.2d at 62-63 (LSD);  United
States v. Bayerle, 898 F.2d 28 (4th Cir.) (dilaudid and dolaphine
(methadone)), cert. denied, 111 S. Ct. 65 (1990);  United States v.
Butler, 895 F.2d 1016 (5th Cir. 1989) (statute and Sentencing
Guidelines required a sentence based on total weight of 38 1/2-pound
mixture that contained only small amount of methamphetamine), cert.
denied, 111 S. Ct. 82 (1990);  United States v. Biship, 894 F.2d at
985-986 (LSD);  United States v. Baker, 883 F.2d 13, 15 (5th Cir.)
(methamphetamine), cert. denied, 110 S. Ct. 517 (1989);  United States
v. Rojas, 868 F.2d 1409, 1409-1410 (5th Cir. 1989) (cocaine).

   /10/ "To give some idea of the small bulk involved, it would only
require 3 ozs of the drug to provide effective doses for every man(,)
woman, and child in a city the size of Glasgow!" B. Wells, Psychedelic
Drugs 47 (1973).

   /11/ Prior to Chairman Wilkins' letter, the Technical Assistance
Service of the Sentencing Commission issued an informal commentary
entitled Questions Most Frequently Asked About the Sentencing
Guidelines, reprinted in T. Hutchison & D. Yellen, Federal Sentencing
Law and Practice Supp. App. 4 (1989).  In that commentary, the staff
noted that "the Commission has not addressed the issue" whether the
weight of "blotter paper or sugar cubes on which LSD or some other
controlled substance has been absorbed" should be included in
calculating the total weight of the controlled substance.  See T.
Hutchison & D. Yellen, supra, Supp. App. 4, at 141.  The staff
commentary, however, simply indicates that the Commission sought to
ensure that the Guidelines would be construed in pari materia with the
statute with respect to the "mixture or substance" clause.  Thus, the
commentary explains that the courts would have to determine whether
carriers should be counted in calculating the total weight of a
controlled substance.  Ibid.  The courts of appeals have done so, and
all agree on the answer.

   /12/ See, e.g., Stanford v. Kentucky, 109 S. Ct. 2969, 2979 (1989)
(plurality opinion) (dictum);  Dobbert v. Florida, 432 U.S. 282, 301
(1977);  Marshall v. United States, 414 U.S. 417, 421-422 (1974);
McGinnis v. Royster, 410 U.S. 263 270 (1973);  Leary v. United States,
395 U.S. 6 (1969);  Turner v. United States, 396 U.S. 398 (1970);  Tot
v. United States, 319 U.S. 463 (1943);  Finley v. California, 222 U.S.
28 (1911).

   /13/ There is no force to Marshall's contention (Br. 89-97) that
the Eighth Amendment renders his sentence unlawful.  In Hutto v.
Davis, 454 U.S. 370 (1982), this Court held that a 40-year sentence is
not excessive for distributing nine ounces of marijuana.  Marshall
received half that penalty for a more serious crime;  Chapman and his
cohorts received even lighter sentences.  The courts of appeals have
routinely upheld comparable sentences for similar conduct and have
frequently upheld sentences of life imprisoment without parole for
drug trafficking crimes.  See App. B, infra.  The sentences imposed in
this case are not unduly harsh by comparison.

   /14/ Chapman's and Marshall's argument fares no better when phrased
in equal protection terms, because the equal protection principles
they invoke in this context spring entirely from the Due Process
Clause, see Bolling v. Sharpe, 347 U.S. 497 (1954), and their equal
protection argument "essentially duplicates" their due process
argument.  Jones v. United States, 463 U.S. 354, 362 n.10 (1983).

   /15/ See United States v. Mendes, 912 F.2d at 439;  United States
v. Murphy, 899 F.2d 714, 717 (8th Cir. 1990);  United States v.
Bishop, 894 F.2d at 986-987;  United States v. Mendoza, 876 F.2d 639,
641 (8th Cir. 1989);  United States v. Holmes, 838 F.2d 1175,
1177-1178 (11th Cir.), cert. denied, 486 U.S. 1058 (1988);  United
States v. Klein, 860 F.2d 1489, 1501 (9th Cir. 1988);  United States
v. Hoyt, 879 F.2d 505, 512 (9th Cir. 1989);  United States v.
Savinovich, 845 F.2d 834, 839 (9th Cir.), cert. denied, 488 U.S. 943
(1988);  United States v. Ramos, 861 F.2d 228, 231-232 (9th Cir.
1988).

   /16/ See Defendant Chapman's Motion Challenging Applicability of
Mandatory Minimum Sentence and Sentencing Guidelines at Sentencing
(Oct. 4, 1989);  Memorandum in Support of Defendant Chapman's Motion
Challenging Applicability of Mandatory Minimum Sentence and Sentencing
Guidelines at Sentencing (Oct. 4, 1989);  Notice of Motion and Motion
to Adopt Co-defendants' Sentencing Motions (Oct. 11, 1989);  Motion
for Order Declaring 21 U.S.C. Sec. 841 Mandatory Minimum Sentence for
LSD Violates the Due Process and Equal Protection Clause of the United
States Constitution (Oct. 2, 1989).

   /17/ Determinate sentences were found in the Nation's penal codes
during its earliest days, see United States v. Grayson, 438 U.S. 41,
45-46 (1978);  United States v. Pinto, 875 F.2d 143, 145 (7th Cir.
1989), and some have survived into modern times.  See, e.g., 18 U.S.C.
1111 (mandatory life imprisonment under federal first-degree murder
statute);  21 U.S.C. 848(b) (mandatory life imprisonment for violation
of drug "super-kingpin" statute);  18 U.S.C. 2114 (1982) (flat 25-year
sentence for armed robbery of a postal carrier upheld against due
process challenge in, e.g., United States v. Smith, 602 F.2d 834 (8th
Cir.), cert. denied, 444 U.S. 902 (1979), and Smith v. United States,
284 F.2d 789, 791 (5th Cir. 1960)).

   /18/ The district court found that the gross weight of the
LSD-infused blotter paper distributed by Marshall was 113.32 grams.
706 F. Supp. at 651.  Under the Sentencing Guidelines, the
distribution of 100 or more grams of an LSD-infused carrier results in
a base offense level of 36.  Marshall received a two-level increase to
level 38 under Sentencing Guidelines Section 3B1.1(c) for being an
organizer, leader, manager, or supervisor of the LSD distribution
scheme.  Marshall also fit into Criminal History Category I.  With a
total offense level of 38 and a Criminal History Category of I, the
Sentencing Guidelines set a range of 235-293 months' imprisonment.
Guidelines Manual 5.2 Sentencing Table (Oct. 1987);  Marshall
Presentence Report 14-18 (June 5, 1989).

   APPENDIX