From: goldsman@cc.gatech.edu (Michael G. Goldsman)
Subject: Dissent and Majority Opinions...
Organization: College of Computing, Georgia Institute of Technology
Date: Tue, 12 Jan 1993 15:12:59 GMT
Reply-To: goldsman@cc.gatech.edu (Michael G. Goldsman)
X-Posted-From: denver.cc.gatech.edu
NNTP-Posting-Host: sol.ctr.columbia.edu


Well I pulled the full texts off of hermes..  here goes...

-Mike


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Subject: 90-5744 -- DISSENT, CHAPMAN v. UNITED STATES

    


    SUPREME COURT OF THE UNITED STATES 


No. 90-5744 



RICHARD L. CHAPMAN, JOHN M. SCHOENECKER 
and PATRICK BRUMM, PETITIONERS v. 
UNITED STATES 


on writ of certiorari to the united states court of appeals for the seventh
circuit 

[May 30, 1991] 



    Justice Stevens, with whom Justice Marshall joins, dissenting.
    The consequences of the majority's construction of 21 U. S. C. MDRV 841
are so bizarre that I cannot believe they were intended by Congress. 
Neither the ambiguous language of the statute, nor its sparse legislative
history, supports the interpretation reached by the majority today. 
Indeed, the majority's construction of the statute will necessarily produce
sentences that are so anomalous that they will undermine the very
uniformity that Congress sought to achieve when it adopted the Sentencing
Guidelines.
    This was the conclusion reached by five Circuit judges in their two
opinions dissenting from the holding of the majority of the Court of
Appeals for the Seventh Circuit sitting en banc in this case. {1}  In one
of the dissenting opinions, Judge Cummings pointed out that there is no
evidence that Congress intended the weight of the carrier to be considered
in the sentence determination in LSD cases, and that there is good reason
to believe Congress was unaware of the inequitable consequences of the
Court's interpretation of the statute.  United States v. Marshall, 908 F.
2d 1312, 1327-1328 (CA7 1990).  As Judge Posner noted in the other
dissenting opinion, the severity of the sentences in LSD cases would be
comparable to those in other drug cases only if the weight of the LSD
carrier were disregarded.  Id., at 1335.
    If we begin with the language of the statute, {2} as did those judges
who dissented from the Seventh Circuit's en banc decision, it becomes
immediately apparent that the phrase "mixture or substance" is far from
clear.  As the majority notes, neither the statute  {3} nor the Sentencing
Guidelines  {4} define the terms "mixture" or "substance."  Ante, at 7. 
The majority initially resists identifying the LSD and carrier as either a
mixture or a substance; instead, it simply refers to the combination, using
the language of the statute, as a "mixture or substance containing a
detectable amount of the drug."  See ante, at 4, 5, 6, 7.  Eventually,
however, the majority does identify the combination as a mixture: "After
the solvent evaporates, the LSD is left behind in a form that can be said
to `mix' with the paper.  The LSD crystals are inside the paper, so that
they are commingled with it, but the LSD does not chemically combine with
the paper."  Ante, at 8. {5}  Although it is true that ink which is
absorbed by a blotter "can be said to `mix' with the paper," ibid., I would
not describe a used blotter as a "mixture" of ink and paper.  So here, I do
not believe the word "mixture" comfortably describes the relatively large
blotter which carries the grains of LSD that adhere to its surface. {6}
    Because I do not believe that the term "mixture" encompasses the LSD
and carrier at issue here, and because I, like the majority, do not think
that the term "substance" describes the combination any more accurately, I
turn to the legislative history to see if it provides any guidance as to
congressional intent or purpose.  As the Seventh Circuit observed, the
legislative history is sparse, and the only reference to LSD in the debates
preceding the passage of the 1986 amendments to MDRV 841 was a reference
that addresses neither quantities nor weights of drugs.  908 F. 2d, at
1327; see also 132 Cong. Rec. S14030 (Sept. 27, 1986) (statement of Sen.
Harkin).
    Perhaps more telling in this case is the subsequent legislative
history. {7}  In a letter to Senator Joseph R. Biden, Jr., dated April 26,
1989, the Chairman of the Sentencing Commission, William W. Wilkens, Jr.,
commented on the ambiguity of the statute:


" `With respect to LSD, it is unclear whether Congress intended the carrier
to be considered as a packaging material, or, since it is commonly consumed
along with the illicit drug, as a dilutant ingredient in the drug mixture.
. . .  The Commission suggests that Congress may wish to further consider
the LSD carrier issue in order to clarify legislative intent as to whether
the weight of the carrier should or should not be considered in determining
the quantity of LSD mixture for punishment purposes.' "  908 F. 2d, at
1327-1328.


Presumably in response, Senator Biden offered a technical amendment, the
purpose of which was to correct an inequity that had become apparent from
several recent court decisions. {8}  According to Senator Biden, "[t]he
amendment remedies this inequity by removing the weight of the carrier from
the calculation of the weight of the mixture or substance."  135 Cong. Rec.
S12748 (Oct. 5, 1989). {9}  Although Senator Biden's amendment was adopted
as part of Amendment No. 976 to S. 1711, the bill never passed the House of
Representatives.  Senator Kennedy also tried to clarify the language of 21
U. S. C. MDRV 841.  He proposed the following amendment:


    "CLARIFICATION OF `MIXTURE OR 


SUBSTANCE.'
    "Section 841(b)(1) of title 21, United States Code, is amended by
inserting the following new subsection at the end thereof:
    " `(E) In determining the weight of a "mixture or substance" under this
section, the court shall not include the weight of the carrier upon which
the controlled substance is placed, or by which it is transported.' "  136
Cong. Rec. S7069-S7070 (May 24, 1990).


    Although such subsequent legislation must be approached with
circumspection because it can neither clarify what the enacting Congress
had contemplated nor speak to whether the clarifications will ever be
passed, the amendments, at the very least, indicate that the language of
the statute is far from clear or plain.
    In light of the ambiguity of the phrase "mixture or substance" and the
lack of legislative history to guide us, it is necessary to examine the
congressional purpose behind the statute and to determine whether the
majority's reading of the statute leads to results that Congress clearly
could not have intended.  The figures in the Court's opinion, see ante, at
4, n. 2, are sufficient to show that the majority's construction will lead
to anomalous sentences that are contrary to one of the central purposes of
the Sentencing Guidelines, which was to eliminate disparity in sentencing. 
"Congress sought reasonable uniformity in sentencing by narrowing the wide
disparity in sentences imposed for similar criminal offenses 

    committed by similar offenders."  U. S. Sentencing Comm'n, 

Federal Sentencing Guidelines Manual 1.2 (1991). {10}  As the majority's
chart makes clear, widely divergent sentences may be imposed for the sale
of identical amounts of a controlled substance simply because of the nature
of the carrier. {11}  If 100 doses of LSD were sold on sugar cubes, the
sentence would range from 188-235 months, whereas if the same dosage were
sold in its pure liquid form, the sentence would range only from 10-16
months.  See ante, at 4, n. 2.  The absurdity and inequity of this result
is emphasized in Judge Posner's dissent:


    "A person who sells LSD on blotter paper is not a worse criminal than
one who sells the same number of doses on gelatin cubes, but he is subject
to a heavier punishment.  A person who sells five doses of LSD on sugar
cubes is not a worse person than a manufacturer of LSD who is caught with
19,999 doses in pure form, but the former is subject to a ten-year
mandatory minimum noparole sentence while the latter is not even subject to
the five-year minimum.  If defendant Chapman, who received five years for
selling a thousand doses of LSD on blotter paper, had sold the same number
of doses in pure form, his Guidelines sentence would have been fourteen
months.  And defendant Marshall's sentence for selling almost 12,000 doses
would have been four years rather than twenty.  The defendant in United
States v. Rose, 881 F. 2d 386, 387 (7th Cir. 1989), must have bought an
unusually heavy blotter paper, for he sold only 472 doses, yet his blotter
paper weighed 7.3 grams -- more than Chapman's, although Chapman sold more
than twice as many doses.  Depending on the weight of the carrier medium
(zero when the stuff is sold in pure form), and excluding the orange juice
case, the Guidelines range for selling 198 doses (the amount in Dean) or
472 doses (the amount in Rose) stretches from ten months to 365 months; for
selling a thousand doses (Chapman), from fifteen to 365 months; and for
selling 11,751 doses (Marshall), from 33 months to life.  In none of these
computations, by the way, does the weight of the LSD itself make a
difference -- so slight is its weight relative to that of the carrier --
except of course when it is sold in pure form.  Congress might as well have
said: if there is a carrier, weigh the carrier and forget the LSD.
    "This is a quilt the pattern whereof no one has been able to discern. 
The legislative history is silent, and since even the Justice Department
cannot explain the why of the punishment scheme that it is defending, the
most plausible inference is that Congress simply did not realize how LSD is
sold."  908 F. 2d, at 1333. {12}


    Sentencing disparities that have been described as "crazy," ibid., and
"loony," id., at 1332, could well be avoided if the majority did not insist
upon stretching the definition of "mixture" to include the carrier along
with the LSD.  It does not make sense to include a carrier in calculating
the weight of the LSD because LSD, unlike drugs such as cocaine or
marijuana, is sold by dosage rather than by weight.  Thus, whether one dose
of LSD is added to a glass of orange juice or to a pitcher of orange juice,
it is still only one dose that has been added.  But if the weight of the
orange juice is to be added to the calculation, then the person who sells
the single dose of LSD in a pitcher rather than in a glass will receive a
substantially higher sentence.  If the weight of the carrier is included in
the calculation not only does it lead to huge disparities in sentences
among LSD offenders, but also it leads to disparities when LSD sentences
are compared to sentences for other drugs.  See n. 12, supra; 908 F. 2d, at
1335.
    There is nothing in our jurisprudence that compels us to interpret an
ambiguous statute to reach such an absurd result.  In fact, we have
specifically declined to do so in the past, even when the statute was not
ambiguous, on the ground that Congress could not have intended such an
outcome. {13}  In construing a statute, Learned Hand wisely counseled us to
look first to the words of the statute, but "not to make a fortress out of
the dictionary; but to remember that statutes always have some purpose or
object to accomplish, whose sympathetic and imaginative discovery is the
surest guide to their meaning."  Cabell v. Markham, 148 F. 2d 737, 739
(CA2), aff'd, 326 U. S. 404 (1945).  In the past, we have recognized that
"frequently words of general meaning are used in a statute, words broad
enough to include an act in question, and yet a consideration of . . . the
absurd results which follow from giving such broad meaning to the words,
makes it unreasonable to believe that the legislator intended to include
the particular act."  Holy Trinity Church v. United States, 143 U. S. 457,
459 (1892).  These words guided our construction of the statute at issue in
Public Citizen v. Department of Justice, 491 U. S. 440, 454 (1989), when we
also noted that "[l]ooking beyond the naked text for guidance is perfectly
proper when the result it apparently decrees is difficult to fathom or
where it seems inconsistent with Congress' intention . . . ."  Id., at
455.
    Undoubtedly, Congress intended to punish drug traffickers severely, and
in particular, Congress intended to punish those who sell large quantities
of drugs more severely than those who sell small quantities. {14}  But it
did not express any intention to treat those who sell LSD differently from
those who sell other dangerous drugs. {15}  The majority's construction of
the statute fails to embody these legitimate goals of Congress.  Instead of
punishing more severely those who sell large quantities of LSD, the Court
would punish more severely those who sell small quantities of LSD in
weighty carriers, and instead of sentencing in comparable ways those who
sell different types of drugs, the Court would sentence those who sell LSD
to longer terms than those who sell proportionately equivalent quantities
of other equally dangerous drugs. {16}  The Court today shows little
respect for Congress' handiwork when it construes a statute to undermine
the very goals that Congress sought to achieve.
    I respectfully dissent.
    
    
    
    
    
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1
    Chief Judge Bauer and Judges Wood, Cudahy and Posner joined Judge
Cummings' dissent, see United States v. Marshall, 908 F. 2d 1312, 1326 (CA7
1990), and all of these judges also joined Judge Posner's dissent.  See
id., at 1331.

2
    See United States v. Turkette, 452 U. S. 576, 580 (1981) ("In
determining the scope of a statute, we look first to its language").

3
    The statutory definitional section applicable to MDRV 841, 21 U. S. C.
MDRV 802, does not define "mixture or substance."

4
    The Guidelines merely provide that "[u]nless otherwise specified, the
weight of a controlled substance set forth in the [offense level] table
refers to the entire weight of any mixture or substance containing a
detectable amount of the controlled substance."  U. S. Sentencing Comm'n,
Federal Sentencing Guidelines Manual 2.47 (1991).

5
    The majority of the Seventh Circuit also identified the combination as
a "mixture," see 908 F. 2d, at 1317-1318; however, other Circuits that have
addressed the question have either identified the combination as a
substance, see, e. g., United States v. Bishop, 894 F. 2d 981, 986 (CA8
1990); United States v. Daley, 883 F. 2d 313, 317 (CA4 1989); United States
v. Taylor, 868 F. 2d 125, 127 (CA5 1989), or have simply held that the
combination fell within the statutory language of a "mixture or substance,"
without distinguishing between the two.  See, e. g., United States v.
Elrod, 898 F. 2d 60, 61 (CA6 1990); United States v. Larsen, 904 F. 2d 562,
563 (CA10 1990).

6
    The point that the "mixture or substance" language remains ambiguous is
highlighted by the Sentencing Commission's own desire to clarify the
meaning of the terms.  A Sentencing Commission Notice, issued on March 3,
1989, invited public comment on whether the Commission should exclude the
weight of the carrier for sentencing purposes in LSD cases.  A section in
the Guidelines Manual, entitled "Questions Most Frequently Asked About the
Sentencing Guidelines," contains a question about the "mixture or
substance" language, which reflects the Commission's continuing uncertainty
as to whether the blotter paper should be weighed:

"With respect to blotter paper, sugar cubes, or other mediums on which LSD
or other controlled substances may be absorbed, the Commission has not
definitively stated whether the carrier medium is considered part of a drug
`mixture or substance' for guideline application purposes.  In order to
ensure consistency between the guidelines and the statute, Application Note
1 to MDRV 2D1.1 states that the term `mixture or substance' has the same
meaning for guideline purposes as in 21 U. S. C. MDRV 841.  Thus, the court
must determine whether, under this statute, LSD carrier medium would be
considered part of an LSD mixture or substance.  To date, all circuit
courts that have addressed the issue appear to be answering the question
affirmatively."  Federal Sentencing Guidelines Manual, supra, at 599.

7
    Of course subsequent legislative history is generally not relevant and
always must be used with care in interpreting enacted legislation.  Compare
Sullivan v. Finkelstein, 496 U. S. --- , --- , n. 8 (1990) (slip op., at
10-11, n. 8), with id., at --- (slip op., at 1-2) (Scalia, J., concurring
in part).  It can, however, provide evidence that an effect of a statute
was simply overlooked.

8
    See, e. g., United States v. Bishop, 704 F. Supp. 910 (ND Iowa 1989).

9
    Senator Biden offered the following example to highlight the inequities
that resulted if the carrier weight were included in determining the weight
of the "mixture or substance" of LSD:

    "The inequity in these decisions is apparent in the following example. 
A single dose of LSD weighs approximately .05 mg.  The sugar cube on which
the dose may be dropped for purposes of ingestion and transportation,
however, weighs approximately 2 grams.  Under 21 U. S. C. MDRV 841(b) a
person distributing more than one gram of a `mixture or substance'
containing LSD is punishable by a minimum sentence of 5 years and a maximum
sentence of 40 years.  A person distributing less than a gram of LSD,
however, is subject only to a maximum sentence of 20 years.  Thus a person
distributing a 1,000 doses of LSD in liquid form is subject to no minimum
penalty, while a person handing another person a single dose on a sugar
cube is subject to the mandatory five year penalty."  135 Cong. Rec. S12748
(Oct. 5, 1989).

10
    "Sentencing disparities that are not justified by differences among
offenses or offenders are unfair both to offenders and to the public.  A
sentence that is unjustifiably high compared to sentences for similarly
situated offenders is clearly unfair to the offender; a sentence that is
unjustifiably low is just as plainly unfair to the public."  S. Rep. No.
98-225, pp. 45-46 (1983).
"The bill creates a sentencing guidelines system that is intended to treat
all classes of offenses committed by all categories of offenders
consistently."  Id., at 51.
    "A primary goal of sentencing reform is the elimination of unwarranted
sentencing disparity."  Id., at 52 (footnote omitted).

See S. Rep. No. 97-307, pp. 963, 968 (1981) (same).

11
    See, e. g., United States v. Healy, 729 F. Supp. 140, 143 (DC 1990);
United States v. Daley, 883 F. 2d, at 316-318.

12
    His comparison between the treatment of LSD and other more harmful
drugs is also illuminating:

    "That irrationality is magnified when we compare the sentences for
people who sell other drugs prohibited by 21 U. S. C. MDRV 841.  Marshall,
remember, sold fewer than 12,000 doses and was sentenced to twenty years. 
Twelve thousand doses sounds like a lot, but to receive a comparable
sentence for selling heroin Marshall would have had to sell ten kilograms,
which would yield between one and two million doses.  Platt, Heroin
Addiction: Theory, Research, and Treatment 50 (2d ed. 1986); cf. Diamor
phine 63, 98 (Scott ed. 1988).  To receive a comparable sentence for
selling cocaine he would have had to sell fifty kilograms, which would
yield anywhere from 325,000 to five million doses.  Washton, Cocaine
Addiction: Treatment, Recovery and Relapse Prevention 18 (1989); Cocaine
Use in America: Epidemiologic and Clinical Perspectives 214 (Kozel & Adams,
eds., National Institute on Drug Abuse Pamphlet No. 61, 1985)).  While the
corresponding weight is lower for crack -- half a kilogram -- this still
translates into 50,000 doses."  908 F. 2d, at 1334.

13
    See, e. g., Gozlon-Peretz v. United States, 498 U. S. --- (1990)
(Congress must have intended supervised release to apply to those who
committed drug offenses during the interim period after the Anti-Drug Abuse
Act of 1986 was enacted but before the Sentencing Reform Act became
effective even though the latter, which defined the term, had not yet
become effective); Sheridan v. United States, 487 U. S. 392, 403 (1988)
("If the Government has a duty to prevent a foreseeably dangerous
individual from wandering about unattended, it would be odd to assume that
Congress intended a breach of that duty to give rise to liability when the
dangerous human instrument was merely negligent but not when he or she was
malicious"); see also Green v. Bock Laundry Machine Co., 490 U. S. 504, 509
(1989) ("The Rule's plain language commands weighing of prejudice to a
defendant in a civil trial as well as in a criminal trial.  But that
literal reading would compel an odd result in a case like this"); id., at
527 (Scalia, J., concurring in judgment) ("We are confronted here with a
statute which, if interpreted literally, produces an absurd, and perhaps
unconstitutional, result").

14
    "The [House] Committee strongly believes that the Federal government's
most intense focus ought to be on major traffickers, the manufacturers or
the heads of organizations, who are responsible for creating and delivering
very large quantities of drugs."  H. R. Rep. No. 99-845, pp. 11-12 (1986).

15
    "The result [of the Code] is a consistent pattern of maximum sentences
for equally serious offenses instead of the current almost random maximum
sentences caused by the piecemeal approach to creation of Federal criminal
laws in the past."  S. Rep. No. 97-307, p. 968 (1981) (footnote omitted). 
16
    "[T]he use of sentencing guidelines and policy statements will assure
that each sentence is fair as compared to all other sentences."  Ibid.
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Subject: 90-5744 -- OPINION, CHAPMAN v. UNITED STATES

    


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES 


No. 90-5744 



RICHARD L. CHAPMAN, JOHN M. SCHOENECKER 
and PATRICK BRUMM, PETITIONERS v. 
UNITED STATES 


on writ of certiorari to the united states court of appeals for the seventh
circuit 

[May 30, 1991] 



    Chief Justice Rehnquist delivered the opinion of the Court.
    Section 841(b)(1)(B)(v) of Title 21 of the United States Code calls for
a mandatory minimum sentence of five years for the offense of distributing
more than one gram of a "mixture or substance containing a detectable
amount of lysergic acid diethylamide (LSD)."  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.
    Petitioners Richard L. Chapman, John M. Schoenecker, and Patrick Brumm
were convicted of selling 10 sheets (1000 doses) of blotter paper
containing LSD, in violation of 21 U. S. C. MDRV 841(a).  The District
Court included the total weight of the paper and LSD in determining the
weight of the drug to be used in calculating petitioners' sentences. 
Accordingly, although the weight of the LSD alone was approximately 50
milligrams, the 5.7 grams combined weight of LSD and blotter paper resulted
in the imposition of the mandatory minimum sentence of five years required
by 21 U. S. C. MDRV 841(b)(1)(B)(v) for distributing more than one gram of
a mixture or substance containing a detectable amount of LSD.  The entire
5.7 grams was also used to determine the base offense level under the
United States Sentencing Commission Guidelines Manual (1990) (Sentencing
Guidelines). {1}  Petitioners appealed, claiming that the blotter paper is
only a carrier medium, and that its weight should not be included in the
weight of the drug for sentencing purposes.  Alternatively, they argued
that if the statute and Sentencing Guidelines were construed so as to
require inclusion of the blotter paper or other carrier medium when
calculating the weight of the drug, this would violate the right to equal
protection incorporated in the Due Process Clause of the Fifth Amendment.
    The Court of Appeals for the Seventh Circuit en banc held that the
weight of the blotter paper or other carrier should be included in the
weight of the "mixture or substance containing a detectable amount" of LSD
when computing the sentence for a defendant convicted of distributing LSD. 
The Court of Appeals also found that Congress had a rational basis for
including the carrier along with the weight of the drug, and therefore the
statute and the Sentencing Guidelines did not violate the Constitution. 
United States v. Marshall, 908 F. 2d 1312 (CA7 1990).  We granted
certiorari, 498 U. S. --- (1990), and now affirm.
    21 U. S. C. MDRV 841(b)(1)(B) provides that

"any person who violates subsection (a) of this section [making it unlawful
to knowingly or intentionally manufacture, distribute, dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled
substance], shall be sentenced as follows:
    "(1)(B) In the case of a violation of subsection (a) of this section
involving -- 

    . . . . .   



    "(v) 1 gram or more of a mixture or substance containing a detectable
amount of lysergic acid diethylamide (LSD);

    . . . . .   



"such person shall be sentenced to a term of imprisonment which may not be
less than 5 years . . . ."


Section 841(b)(1)(A)(v) provides for a mandatory minimum of 10 years
imprisonment for a violation of subsection (a) involving "10 grams or more
of a mixture or substance containing a detectable amount of [LSD]." 
Section 2D1.1(c) of the Sentencing Guidelines parallels the statutory
language and requires the base offense level to be determined based upon
the weight of a "mixture or substance containing a detectable amount of"
LSD.
    According to the Sentencing Commission, the LSD in an average dose
weighs 0.05 milligrams; there are therefore 20,000 pure doses in a gram. 
The pure dose is such an infinitesimal amount that it must be sold to
retail customers in a "carrier."  Pure LSD is dissolved in a solvent such
as alcohol, and either the solution is sprayed on paper or gelatin, or
paper is dipped in the solution.  The solvent evaporates, leaving minute
amounts of LSD trapped in the paper or gel.  Then the paper or gel is cut
into "one-dose" squares and sold by the dose.  Users either swallow the
squares, lick them until the drug is released, or drop them into a
beverage, thereby releasing the drug.  Although gelatin and paper are
light, they weigh much more than the LSD.  The ten sheets of blotter paper
carrying the 1,000 doses sold by petitioners weighed 5.7 grams; the LSD by
itself weighed only about 50 milligrams, not even close to the one gram
necessary to trigger the 5-year mandatory minimum of MDRV 841(b)(1)(B)(v).
    Petitioners argue that MDRV 841(b) should not require that the weight
of the carrier be included when computing the appropriate sentence for LSD
distribution, for the words "mixture or substance" are ambiguous, and
should not be construed to reach an illogical result.  Because LSD is sold
by dose, rather than by weight, the weight of the LSD carrier should not be
included when determining a defendant's sentence because it is irrelevant
to culpability.  They argue that including the weight of the carrier leads
to anomalous results, viz: a major wholesaler caught with 19,999 doses of
pure LSD would not be subject to the 5-year mandatory minimum sentence,
while a minor pusher with 200 doses on blotter paper, or even one dose on a
sugar cube, would be subject to the mandatory minimum sentence. {2}  Thus,
they contend, the weight of the carrier should be excluded, the weight of
the pure LSD should be determined, and that weight should be used to set
the appropriate sentence.
    We think that petitioner's reading of the statute -- a reading that
makes the penalty turn on the net weight of the drug rather than the gross
weight of the carrier and drug together -- is not a plausible one.  The
statute refers to a "mixture or substance containing a detectable amount." 
So long as it contains a detectable amount, the entire mixture or substance
is to be weighed when calculating the sentence.
    This reading is confirmed by the structure of the statute.  With
respect to various drugs, including heroin, cocaine, and LSD, it provides
for mandatory minimum sentences for crimes involving certain weights of a
"mixture or substance containing a detectable amount" of the drugs.  With
respect to other drugs, however, namely PCP or methamphetamine, it provides
for a mandatory minimum sentence based either on the weight of a mixture or
substance containing a detectable amount of the drug, or on lower weights
of pure PCP or methamphetamine.  For example, MDRV 841(b)(1)(A)(iv)
provides for a mandatory 10-year minimum sentence for any person who
distributes "100 grams or more of phencyclidine (PCP) or 1 kilogram or more
of a mixture or substance containing a detectable amount of phencyclidine
(PCP)."  Thus, with respect to these two drugs, Congress clearly
distinguished between the pure drug and a "mixture or substance containing
a detectable amount of" the pure drug.  But with respect to drugs such as
LSD, which petitioners distributed, Congress declared that sentences should
be based exclusively on the weight of the "mixture or substance."  Congress
knew how to indicate that the weight of the pure drug was to be used to
determine the sentence, and did not make that distinction with respect to
LSD.
    Chapman maintains that Congress could not have intended to include the
weight of an LSD carrier for sentencing purposes because the carrier will
constitute nearly all of the weight of the entire unit, and the sentence
will, therefore, be based on the weight of the carrier, rather than the
drug.  The same point can be made about drugs like heroin and cocaine,
however, and Congress clearly intended the dilutant, cutting agent, or
carrier medium to be included in the weight of those drugs for sentencing
purposes.  Inactive ingredients are combined with pure heroin or cocaine,
and the mixture is then sold to consumers as a heavily diluted form of the
drug.  In some cases, the concentration of the drug in the mixture is very
low.  E. g., United States v. Buggs, 904 F. 2d 1070 (CA7 1990) (1.2%
heroin); United States v. Dorsey, 198 U. S. App. D. C 313, 591 F. 2d 922
(DC 1978) (2% heroin); United States v. Smith, 601 F. 2d 972 (CA8) (2.7%
and 8.5% heroin), cert. denied, 444 U. S. 879 (1979).  But, if the carrier
is a "mixture or substance containing a detectable amount of the drug,"
then under the language of the statute the weight of the mixture or
substance, and not the weight of the pure drug, is controlling.
    The history of Congress's attempts to control illegal drug distribution
shows why Congress chose the course that it did with respect to sentencing.
The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L.
91-513, 84 Stat. 1236, divided drugs by schedules according to potential
for abuse.  LSD was listed in schedule I(c), which listed "any material,
compound, mixture, or preparation, which contains any quantity of the
following hallucinogenic substances," including LSD.  Pub. L. 91-513, MDRV
202(c).  That law did not link penalties to the quantity of the drug
possessed; penalties instead depended upon whether the drug was classified
as a narcotic or not.
    The Controlled Substances Penalties Amendments Act of 1984, which was a
chapter of the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98
Stat. 2068, first made punishment dependent upon the quantity of the
controlled substance involved.  The maximum sentence for distribution of 5
grams or more of LSD was set at 20 years.  21 U. S. C. MDRV
841(b)(1)(A)(iv) (1982 ed., Supp. II).  The 1984 amendments were intended
"to provide a more rational penalty structure for the major drug
trafficking offenses," S. Rep. No. 98-225, 255 (1983), by eliminating
sentencing disparaties caused by classifying drugs as narcotic and
non-narcotic.  Id., at 256.  Penalties were based instead upon the weight
of the pure drug involved.  See United States v. McGeehan, 824 F. 2d, 677,
681 (CA8 1987), cert. denied, 484 U. S. 1061 (1988).
    The current penalties for LSD distribution originated in the Anti-Drug
Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207 (1986).  Congress adopted
a "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.
98-845, pt. 1, pp. 11-12, 17 (1986).  To implement that principle, Congress
set mandatory minimum sentences corresponding to the weight of a "mixture
or substance containing a detectable amount of" the various controlled
substances, including LSD.  21 U. S. C. 15 841(b)(1)(A)(i)-(viii) and
(B)(i)-(viii).  It intended the penalties for drug trafficking to be
graduated according to the weight of the drugs in whatever form they were
found -- cut or uncut, pure or impure, ready for wholesale or ready for
distribution at the retail level.  Congress did not want to punish retail
traffickers less severely, even though they deal in smaller quantities of
the pure drug, because such traffickers keep the street markets going.  H.
R. Rep. No. 99-845, supra, at pt. 1, p. 12.
    We think that the blotter paper used in this case, and blotter paper
customarily used to distribute LSD, is a "mixture or substance containing a
detectable amount" of LSD.  In so holding, we confirm the unanimous
conclusion of the Courts of Appeals that have addressed the issue. {3} 
Neither the statute nor the Sentencing Guidelines define the terms
"mixture" and "substance," nor do they have any established common law
meaning.  Those terms, therefore, must be given their ordinary meaning. 
See Moskal v. United States, 498 U. S. ---, --- (1990).  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."  Webster's Third New International Dictionary 1449 (1986).  A
"mixture" may also consist of two substances blended together so that the
particles of one are diffused among the particles of the other.  9 Oxford
English Dictionary 921 (2d ed. 1989).  LSD is applied to blotter paper in a
solvent, which is absorbed into the paper and ultimately evaporates.  After
the solvent evaporates, the LSD is left behind in a form that can be said
to "mix" with the paper.  The LSD crystals are inside of the paper, so that
they are comingled with it, but the LSD does not chemically combine with
the paper.  Thus, it retains a separate existence and can be released by
dropping the paper into a liquid, or by swallowing the paper itself.  The
LSD is diffused among the fibers of the paper.  Like heroin or cocaine
mixed with cutting agents, the LSD cannot be distinguished from the blotter
paper, nor easily separated from it.  Like cutting agents used with other
drugs that are ingested, the blotter paper, gel, or sugar cube carrying LSD
can be and often is ingested with the drug.
    Petitioner argues that the terms "mixture" or "substance" cannot be
given their dictionary meaning because then the clause could be interpreted
to include carriers like a glass vial or an automobile in which the drugs
are being transported, thus making the phrase nonsensical.  But such
nonsense is not the necessary result of giving the term "mixture" its
dictionary meaning.  The term does not include LSD in a bottle, or LSD in a
car, because the drug is easily distinguished from, and separated from,
such a "container."  The drug is clearly not mixed with a glass vial or
automobile; nor has the drug chemically bonded with the vial or car.  It
may be true that the weights of containers and packaging materials
generally are not included in determining a sentence for drug distribution,
but that is because those items are also clearly not mixed or otherwise
combined with the drug.
    Petitioners argue that excluding the weight of the LSD carrier when
determining a sentence is consistent with established principles of
statutory construction.  First, they argue that the rule of lenity requires
an ambiguous statute of this type to be construed in favor of the
defendant.  Petitioners also argue that the statute should be construed to
avoid a serious constitutional question and an interpretation of the
statute that would require it to be struck down as violating due process.
    The rule of lenity, however, 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 after a court has " `seize[d] every thing 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, 2 Cranch
358, 386 (1805)).  "The rule [of lenity] 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, supra, at ---.  The statutory language and structure
indicate that 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.  A straightforward reading of MDRV 841(b)
does not produce a result "so `absurd or glaringly unjust,' " United States
v. Rodgers, 466 U. S. 475, 484 (1984) (citation omitted), as to raise a
"reasonable doubt" about Congress's intent.  Moskal v. United States,
supra.  There is no reason to resort to the rule of lenity in these
circumstances. {4}
    Petitioners also argue that constructions which cast doubt on a
statute's constitutionality should be avoided, citing Public Citizen v.
United States Dept. of Justice, 491 U. S. 440, 465-466 (1989).  " `[E]very
reasonable construction must be resorted to, in order to save a statute
from unconstitutionality,' " Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building and Construction Trades Council, 485 U. S. 568, 575 (1988),
but reading "mixture" to include blotter paper impregnated with LSD
crystals is not only a reasonable construction of MDRV 841(b), but it is
one that does not raise "grave doubts" about the constitutionality of the
provision.  United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916).  The
canon of construction that a court should strive to interpret a statute in
a way that will avoid an unconstitutional construction is useful in close
cases, but it is " `not a license for the judiciary to rewrite language
enacted by the legislature.' "  United States v. Monsanto, 491 U. S. 600,
611, 2664 (1989).  Petitioners' argument is unavailing here for the reasons
we explain below.
    Petitioners argue that the due process of law guaranteed them by the
Fifth Amendment is violated by determining the lengths of their sentences
in accordance with the weight of the LSD "carrier," a factor which they
insist is arbitrary.  They argue preliminarily that the right to be free
from deprivations of liberty as a result of arbitrary sentences is
fundamental, and therefore the statutory provision at issue may be upheld
only if the government has a compelling interest in the classification in
question.  But we have never subjected the criminal process to this sort of
truncated analysis, and we decline to do so now.  Every person has a
fundamental right to liberty in the sense that the Government may not
punish him unless and until it proves his guilt beyond a reasonable doubt
at a criminal trial conducted in accordance with the relevant
constitutional guarantees.  Bell v. Wolfish, 441 U. S. 520, 535, 536, and
n. 16 (1979).  But a person who has been so convicted is eligible for, and
the court may impose, whatever punishment is authorized by statute for his
offense, so 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), and so long as the penalty is not based on an arbitrary
distinction that would violate the Due Process Clause of the Fifth
Amendment.  In this context, as we noted in Jones v. United States, 463 U.
S. 354, 362, n. 10 (1983), an argument based on equal protection
essentially duplicates an argument based on due process.
    We find that Congress had a rational basis for its choice of penalties
for LSD distribution.  The penalty scheme set out in the Anti-Drug Abuse
Act of 1986 is intended to punish severely large-volume drug traffickers at
any level.  H. R. Rep. No. 99-845, Pt. 1, at 12, 17.  It assigns more
severe penalties to the distribution of larger quantities of drugs.  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.
{5}
    This is as true with respect to LSD as it is with respect to other
drugs.  Although LSD is not sold by weight, but by dose, and a carrier
medium is not, strictly speaking, used to "dilute" the drug, that medium is
used to facilitate the dis tribution of the drug.  Blotter paper makes LSD
easier to transport, store, conceal, and sell.  It is a tool of the trade
for those who traffic in the drug, and therefore it was rational for
Congress to set penalties based on this chosen tool.  Congress was also
justified in seeking to avoid arguments about the accurate weight of pure
drugs which might have been extracted from blotter paper had it chosen to
calibrate sentences according to that weight.
    Petitioners do not claim that the sentencing scheme at issue here has
actually produced an arbitrary array of sentences, nor did their motions in
district court contain any proof of actual disparities in sentencing. 
Rather, they challenge the Act on its face on the ground that it will
inevitably lead to arbitrary punishments.  While hypothetical cases can be
imagined involving very heavy carriers and very little LSD, those cases are
of no import in considering a claim by persons such as petitioners, who
used a standard LSD carrier.  Blotter paper seems to be the carrier of
choice, and the vast majority of cases will therefore do exactly what the
sentencing scheme was designed to do -- punish more heavily those who deal
in larger amounts of drugs.
    Petitioners argue that those selling different numbers of doses, and,
therefore, with different degrees of culpability, will be subject to the
same minimum sentence because of choosing different carriers. {6}  The same
objection could be made to a statute that imposed a fixed sentence for dis
tributing any quantity of LSD, in any form, with any carrier.  Such a
sentencing scheme -- not considering individual degrees of culpability --
would clearly be constitutional.  Congress has the power to define criminal
punishments without giving the courts any sentencing discretion.  Ex parte
United States, 242 U. S. 27 (1916).  Determinate sentences were found in
this country's penal codes from its inception, see United States v.
Grayson, 438 U. S. 41, 45-46 (1978), and some have remained until the
present.  See, e. g., 18 U. S. C. MDRV 1111 (mandatory life imprisonment
under federal first-degree-murder statute; 21 U. S. C. MDRV 848(b)
(mandatory life imprisonment for violation of drug "super-kingpin"
statute); 18 U. S. C. MDRV 2114 (1982 ed.) (flat 25-year sentence for armed
robbery of a postal carrier) (upheld against due process challenge in
United States v. Smith, 602 F. 2d 834 (CA8), cert. denied, 444 U. S. 902
(1979), and Smith v. United States, 284 F. 2d 789, 791 (CA5 1960)).  A
sentencing scheme providing for "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).  That
distributors of varying degrees of culpability might be subject to the same
sentence does not mean that the penalty system for LSD distribution is
unconstitutional.
    We likewise hold that the statute is not unconstitutionally vague. 
First Amendment freedoms are not infringed by MDRV 841, so the vagueness
claim must be evaluated as the statute is applied to the facts of this
case.  United States v. Powell, 423 U. S. 87, 92 (1975).  The fact that
there may be plausible arguments against describing blotter paper
impregnated with LSD as a "mixture or substance" containing LSD does not
mean that the statute is vague.  This is particularly so since whatever
debate there is would center around the appropriate sentence, and not the
criminality of the conduct.  We upheld the defendant's conviction in United
States v. Rodgers, 466 U. S. 475 (1984), even though the Court of Appeals
for the circuit in which the defendant had resided had construed the
statute as not applying to one in his position.  Here, on the contrary, all
of the Courts of Appeals that have decided the issue, and all except one
district court, United States v. Healy, 729 F. Supp. 140 (DC 1990), have
held that the weight of the carrier medium must be included in determining
the appropriate sentence.
    We hold that the statute requires the weight of the carrier medium to
be included when determining the appropriate sentence for trafficking in
LSD, and this construction is neither a violation of due process, nor
unconstitutionally vague.  Accordingly, the judgment of the Court of
Appeals is

Affirmed. 


    
    
    
    
    

------------------------------------------------------------------------------
1
    Chapman was sentenced to 96 months; Schoenecker was sentenced to 63
months; and Brumm was sentenced to 60 months' imprisonment.  Brief for
Petitioners 4.

2
    Likewise, under the Sentencing Guidelines, those selling the same
number of doses would be subject to widely varying sentences depending upon
which carrier medium was used.  For example, those selling 100 doses would
receive the following disparate sentences:




||Base\| 

|Weight of\offense\Guidelines\ 

"Carrier|100 doses\level\range (months)^ 


Sugar cube|227 ^gr.|36\188-235 ^ 

Blotter paper|1.4 ^gr.|26\63-78 ^ 

Gelatin capsule|225 ^mg.|18\27-33 ^ 

Pure[ ] LSD|5 ^mg.|12\10-16"  ^ 



Brief for Petitioners (footnotes omitted).
    Even among dealers using blotter paper, the sentences can vary because
the weight of the blotter paper varies from dealer to dealer.  Petitioners'
blotter paper, containing 1,000 doses of LSD, weighed 5.7 grams, or 5.7
milligrams per dose.  In United States v. Rose, 881 F. 2d 386, 387 (CA7
1989), 472 doses on blotter paper weighed 7.3 grams, or 15.4 milligrams per
dose.  In United States v. Elrod, 898 F. 2d 60 (CA6 1990), 1,990 doses on
blotter paper weighed 11 grams, or 5.5 milligrams per dose.  In United
States v. Healy, 729 F. Supp. 140, 141 (DC 1990), 5000 doses on blotter
paper weighed 44.133 grams, or 8.8 milligrams per dose.

3
    United States v. Larsen, 904 F. 2d 562 (CA10 1990); United States v.
Elrod, 898 F. 2d 60 (CA6), cert. denied, 498 U. S. --- (1990); United
States v. Bishop, 894 F. 2d 981, 985-987 (CA8 1990); United States v. Daly,
883 F. 2d 313, 316-318 (CA4 1989), cert. denied, 498 U. S. --- (1990);
United States v. Rose, 881 F. 2d 386 (CA7 1989); United States v. Taylor,
868 F. 2d 125, 127-128 (CA5 1989).

4
    Petitioner points to the views of some members of Congress that the use
of the phrase "mixture or substance containing a detectable amount of LSD"
was less than precise.  These views were manifested by the in troduction of
bills in the Senate that would have excluded LSD carrier mediums from the
"mixture or substance" clause.  Neither of the bills was enacted into law,
and it is questionable whether they even amount to subsequent legislative
history -- itself an unreliable guide to legislative intent.  See Pierce v.
Underwood, 487 U. S. 552, 566-567 (1988); Quern v. Mandley, 436 U. S. 725,
736, n. 10 (1978).

5
    Every Court of Appeals to have addressed the issue has held that this
sentencing scheme is rational.  See United States v. Mendes, 912 F. 2d, 434
(CA 10 1990); see United States v. Murphy, 899 F. 2d 714, 717 (CA8 1990);
United States v. Bishop, 894 F. 2d at 986-987; United States v. Holmes, 838
F. 2d 1175, 1177-1178 (CA11), cert. denied, 486 U. S. 1058 (1988); United
States v. Klein, 860 F. 2d 1489, 1501 (CA9 1988); United States v. Hoyt,
879 F. 2d 505, 512 (CA9 1989); United States v. Savinovich, 845 F. 2d 834,
839 (CA9), cert. denied, 488 U. S. 943 (1988); United States v. Ramos, 861
F. 2d 228, 231-232 (CA9 1988).

6
    We note that distributors of LSD make their own choice of carrier, and
could act to minimize their potential sentences.  As it is, almost all dis
tributors choose blotter paper, rather than the heavier and bulkier sugar
cubes.
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