1 The deputy also detected a package of rolling papers and Jackson admitted that he had a small bag of marijuana in his clothes bag. United States Court of Appeals,

Eleventh Circuit

No. 95-9558. UNITED STATES of America, Plaintiff-Appellee,

v. Nicholas JACKSON, Defendant-Appellant. June 20, 1997. Appeal from the United States District Court fo r the Middle District of Georgia. (No. 7:95-CR-5-1- WDO), Wilbur D. Owens, Jr., Judge. Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and CLARK, Senior Circuit Judge. CLARK, Senior Circuit Judge: Defendant-appellant Nicholas Jackson pled guilty to one count of traveling interstate in aid of racketeering, i.e., the distribution of cocaine, in violati on of 21 U.S.C. § 952. The district court sentenced Jackson to 46 months' imprisonment. Jack son appeals, arguing that the district court erred in using the weight of the entire contents of the package, containing 99 percent sugar and 1 percent cocaine, to calculate the base offense level under the sentencing guidelines.

I. BACKGROUND Jackson was the passenger in a car stopped by Lowndes County, Georgia, Deputy Sheriff Bryan Fleming for an improper tag. During th e traffic stop, the deputy obtained the driver's permission to search the vehicle. Before search ing the vehicle, the deputy performed a weapons "pat down" of Jackson, and detected a firm, square item concealed in his clothing. 1 At this point, Jackson broke away from the deputy and ran into the near by woods. After a short chase, Jackson was taken into custody. A package containing powder cocaine was found about four feet from where he was apprehended. Fleming shoved a pocketknife into th e package, and it came out with a white powder. Although the package weighed 1014.4 grams, an ultraviolet spectroscopy showed that approximately2 A small bag of marijuana was subsequently located in a blue bag located in the back seat of the car. The net weight of the marijuana was established as 1.1 grams.

3 U.S.S.G. § 1B1.3(a).

4 U.S.S.G. § 2D1.1, Drug Equivalency Tables. The tables mandate that each of the drugs be converted to its marijuana equivalent. U.S.S.G. § 2D1.1, comment (n. 10).

5 U.S.S.G. § 2E1.2(a) [which directs that the base offense level shall be the greater of (1) base offense level 6, or (2) the underlying unlawful activity in respect to which the travel was undertaken]. The underlying offense is the distri bution of cocaine in violation of 21 U.S.C. § 841(a)(1). The base offense level is then found at U.S.S.G. § 2D1.1, comment. (n. 6) [which directs that when there are multiple drug types, the quantities of the drugs be added]. The base offense level is calculated by including all the drugs, not just those included in the counts of conviction. See § 1B1.3(a)(2), comment (background) and § 3D1.2(d).

6 U.S.S.G. § 2D1.1, Drug Equivalency Tables. [One gram of cocaine equals 200 grams of marijuana]. The probation officer used the we ight of the cocaine mixture, 1,014.4 grams, and added the 1.1 grams of marijuana.

7 U.S.S.G. § 2D1.1. 10 grams, or about 1 percent, were cocaine. 2 Jackson was indicted on two counts of possessi ng with intent to distribute cocaine (Count One), and traveling in interstate commerce with th e intent to promote, carry on, and facilitate the transportation and concealment of cocaine (Count Two). He pled guilty to Count Two, and Count

One was dismissed. The probation officer submitted a presentence report calculating the guidelines' range. The base offense level was calculated by considering the relevant conduct, 3 finding the marijuana equivalency, 4 and adding the quantities of drugs. 5 Under the equivalency tables, the quantity of drugs was 202,881.1 kilograms of marijuana. 6 The Drug Quantity Table provides for a base offense level of 26 for this amount of marijuana or its equivalent. 7 Adjustments to this offense level netted three and, accordingly, the probation officer found the guideline range to be 46 to 57 months. Jackson objected, arguing that the appropriate quan tity of cocaine should be only the ten grams of cocaine that was located on the sugar. At the sentencing hearing, Georgi a Bureau of Investigation chemist Larry Wheeler testified that the contents of the package "appeared to be uniform throughout" but that "some of it was in8 R2 at 4.

9 R1-22, govt. exh. 3 at 1; R2 at 8.

10 R2 at 10, 12.

11 R2 at 14.

12 R2 at 32.

13 R2 at 27, 30. lumps, some of it was in powder." 8 He said that tests on the powder were positive for cocaine, but tests on several lumps were negative for cocaine. Wheeler read a letter that he had written in response to questions from the U.S. Attorney, saying that during the testing he: made no attempt to weigh the lumps or the powder separately. At this time it would be impossible for me to determine the extent of mixing that occurred during my analysis and subsequent repackaging and storing of the evidence.... My own intuition about this case is that most likely this block of powder was prepared to be sold as "rip-off" and that th e cocaine present was originally contained in an area at the surface of the block. This, so that an authentic sample could be given if requested. There would be no reason that I know of, to mix the amount of cocaine present in this case with this large a quantity of powder (sugar). 9 Wheeler explained that sugar would be consumed when used as a cutting agent and sold as

cocaine. On cross-examination Wheeler said th at "(t)his is not 1000 grams of cocaine." He explained that "(t)his 10 grams was not unifo rmly mixed throughout the powder and the lumps because some of the lumps had no co caine in them.... It didn't start out being at the time that I first analyzed it, being 1014 grams with an equal mixture of 1% cocaine throughout...." 10 He also said that "(t)hose lumps were not a mixture of cocaine and anything else...." 11 He said that he did not think that a mixture of 10 gram s of cocaine and 1004 grams of s ugar would have been marketable

or detectable to a field test for cocaine. James W. Swift, a City of Macon Police Department officer assigned to the Drug Enforcement Administration Task Force, described the package as "... one kilo rip-off of cocaine ... (and) (i)f you paid more than $100, you didn't get your money's worth." 12 He said that, usually, when cocaine is packaged "... to be rip-off, it' s not going to be just laced on top, it's going to be mixed through." 1314 United States v. Smith, 51 F.3d 980, 981 (11th Cir.1995) [citing United States v. Carroll, 6 F.3d 735, 742 (11th Cir.1993), cert. denied, 510 U.S. 1183, 114 S.Ct. 1234, 127 L.Ed.2d 577 (1994) ].

15 U.S.S.G. § 2D1.1(c), (n*) (Drug Quantity Table).

16 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).

17

Id. at 459, 111 S.Ct. at 1924. The district court found "by a preponderance of the evidence that more than 500 grams of the mixture was cocaine and sugar and contained a detectable amount of cocaine" and that Presentence Report properly computed the guideline range.

II. DISCUSSION Jackson argues that the district court erre d in using the weight of the entire package containing the cocaine because, since it containe d only 1 percent cocaine, there was no "mixture." He also argues that, even if there was a mixture, it did not fit into the definition of a "mixture" under the Guidelines because the dilution of 10 grams of cocaine and 1000 grams of sugar would constitute an unusable drug. The government responds that the entire content weight applies because the package contained a detectable amount of cocaine. A district court's determination of the drug qua ntity used to establish a base offense level

is reviewed for clear error. 14 Jackson's sentence was based on 21 U.S.C. § 841(b)(1)(B)(ii), which applies to "500 grams or more of a mixture or s ubstance containing a detectable amount of" cocaine. The United States Sentencing Guidelines provide th at, unless otherwise specified, the weight of a controlled substance, as set forth in the Drug Quantity Table, refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. 15 Because marijuana and cocaine are not otherwise specified, th e relevant weight is the entire weight of any mixture or substance containing a detectable amount of marijuana (or its equivalent).

In Chapman v. United States, 16 the Supreme Court held that, "[s]o long as [the mixture] contains a detectable amount [of a controlled subs tance], the entire mixture or substance is to be weighed when calculating the sentence." 17 Noting that "[n]either the statute nor the Sentencing

Guidelines define the terms "mixture' and "substa nce,' nor do they have an established common-law18 Id. at 462, 111 S.Ct. at 1925-1926 [citing Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990) ].

19

Id. at 462, 111 S.Ct. at 1926 [quoting Webster's Third New International Dictionary 1449 (1986) ].

20

Id. at 462, 111 S.Ct. at 1926 [citing 9 Oxford English Dictionary 921 (2d ed.1989)].

21 Id. at 455, 111 S.Ct. at 1922.

22

Id. at 461, 111 S.Ct. at 1925.

23 Jackson was sentenced on December 4, 1995. The sentencing court must use the guidelines in effect at the time of sentencing. United States v. Camacho, 40 F.3d 349, 354 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995).

24 U.S.S.G. § 2D1., comment. (n. 1) (Nov. 1995). meaning," the Supreme Court gave the terms their ordinary meaning. 18 Therefore, the Supreme Court defined a "mixture" as " "a portion of matte r 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' " 19 or "two substances blended toge ther so that the particles of one are diffused among the particles of the other." 20 The Supreme Court based its reasoning on Congress's intent to punish "the to tal quantity of what is distribute d, rather than the amount of pure drug involved[.]" 21 The Court observed that, in using the words "mixture or substance," Congress "intended the penalties for drug tra fficking to be graduated according to the weight of the drugs in whatever form they were found—cut or uncut, pur e or impure, ready for wholesale or ready for

distribution at the retail level." 22 Effective November 1, 1993 23 , the United States Sentencing Commission amended the guidelines to provide a "[m]ixture or substance does not include materials that must be separated

from the controlled substance before the controlled substance can be used," such as "fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statute, and waste water from an illicit laboratory used to manufacture a controlled substance." If such material cannot be readily separated from the mixture or substance that appropriately is counted in the Drug Quantity Table, the court may use any reasonable method to approxima te the weight of the mixture or substance to

be counted. 24 In promulgating the amendment, the Sentencing Commission addressed the25 U.S.S.G. App. C, amend. 484.

26

Id.

27 United States v. Pope, 58 F.3d 1567, 1572 (11th Cir.1995) (hol ding that "the entire weight rule of Chapman must still be followed for purposes ... of the mandatory, minimum sentence for an LSD conviction despite Guidelines' amendments"), cert. denied, --- U.S. ----, 116 S.Ct. 1831, 134 L.Ed.2d 935 (1996).

28 938 F.2d 1231 (11th Cir.1991).

29 Although Rolande-Gabriel objected to the inclusi on of the weight of the "liquid carrier" in the determination of her base offense level, it does not appear that she objected to the inclusion of the weight of the cutting agent. The entire mixture weighed 241.6 grams; the powder extracted from the liquid weighed 72.2 grams and consisted of 7.2 grams of cocaine base and 65 grams of a cutting agent. Id. at 1232, 1236. "inter-circuit conflict regarding the meaning of the term "mixture or substance' as used in § 2D1.1 by expressly providing that this term does not incl ude portions of a drug mixture that have to be separated from the controlled substance before the controlled substance can be used." 25 The Commission noted that, subsequent to Chapman, the issue had arisen in two types of cases: (1) where a controlled substance is bonded to, or suspended in, another substance, and the controlled substance is not usable until it is separated from the other substance; and (2) where the waste from

the manufacture of a controlled substance is conf iscated before the chemical processing of the controlled substance is completed, and no weight is provided for the controlled substance in the waste because it is too small to quantify. 26 Other than the "exclusion of materials which must be separated from the controlled substance before the controlled substance can be used," it appears that the "entire weight rule of Chapman " must be followed. 27

In United States v. Rolande-Gabriel, 28 this court adopted a "marketable" approach about whether a sentencing calculation should be based on the entire mixture of co caine, a cutting agent, and "liquid waste," or on the mixture of cocaine a nd the cutting agent that remained after the liquid

was removed. 29 In distinguishing Chapman, this court noted that "[w]hile the LSD [in Chapman was] ready for sale, use, or consumption when it is placed on standard carrier mediums such as blotter paper, ... the cocaine mixture in this cas e was obviously unusable while mixed with the liquid30 Id. at 1237.

31 Id. at 1238. In conclusion, this court stated that Rolande-Gabriel "should have been sentenced based on the 72.2 grams of usable powder consisting of cutting agent and cocaine base." Also see United States v. Bristol, 964 F.2d 1088, 1089-1090 (11th Cir.1992) (the weight of wine used as a medium to transport cocaine should not have been included in the determination of base offense level); United States v. Newsome, 998 F.2d 1571, 1578 (11th Cir.1993) (discarded "sludge" from methamphetami ne production, which would "never find [its] way to ... consumers," should not have been included in calculation), cert. denied, 510 U.S. 1062, 114 S.Ct. 737, 126 L.Ed.2d 700 (1994).

32 United States v. Acosta, 963 F.2d 551 (2nd Cir.1992) (holding that the weight of creme liqueur in which the cocaine was dissolved for transport should not be included in the sentencing calculation as it was an unusable portion of the mixture, making the drugs uningestible and unmarketable).

33 United States v. Rodriguez, 975 F.2d 999, 1007, reh'g denied (3rd Cir.1992).

34 United States v. Palacios-Molina, 7 F.3d 49, 53-54 (5th Cir.1993) (the liquid in which cocaine was mixed should have been excluded because it was not part of the marketable mixture and was the functional equivalent of packaging material; the cocaine was not marketable until it was distilled). waste material." 30 This court held that "[t]he entire weight of drug mixtures which are usable in the chain of distribution should be considered in determining a defendant's sentence." 31 The marketable or "usable" appro ach has been adopted by the Second 32 , Third 33 , Fifth 34 ,35 United States v. Jennings, 945 F.2d 129 (6th Cir.1991) (remanding a sentencing calculation for further consideration, finding that it would ina ppropriate to include the weight of the entire mixture in container used in the distillation of methamphetamine, which included methamphetamine, and poisonous unreacted chemicals and by-products, and holding that the district court would be limited to the amount of methamphetamine the defendants were capable of producing).

36 United States v. Johnson, 999 F.2d 1192, 1196-1197 (7th Cir.1993) (the weight of the liquid containing a trace amount of cocaine should be excluded as it (1) did not serve as a dilutant, cutting agent or carrier medium, or facilitate the distribution, and (2) was not a useable, ingestible or marketable mixture).

37 United States v. Robins, 967 F.2d 1387, 1389 (9th Cir.1992).

38 Although the Fifth and the Ninth Circuits had rejected the "marketable" approach as to waste water in methamphetamine cases, United States v. Sherrod, 964 F.2d 1501, 1509, 1510 (5th Cir.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993), and United States v. Beltran-Felix, 934 F.2d 1075, 1076 (9th Cir.1991), cert. denied, 502 U.S. 1065, 112 S.Ct. 955, 117, 117 L.Ed.2d 123 Ed.2d 123 (1992), those opinions pre-date the Guidelines' amendment excluding waste water.

39 United States v. Campbell, 61 F.3d 976, 983-984 (1st Cir.1995) (finding that the weight of the entire mixture containing the controlled substance should be included in the sentencing calculation where the surplus materials did not need to be separated from the controlled substance before the controlled substance was usable), cert. denied, --- U.S. ----, 116 S.Ct. 1556, 134 L.Ed.2d 657 (1996).

40 United States v. Richards, 87 F.3d 1152, 1157 (10th Cir.) ( en banc ) (holding that "the plain meaning of § 841(b), and Supreme Court precedent" require that the weight of the entire mixture of liquid by-products and methamphetamine be used to calculate the defendant's sentence), cert. dismissed, --- U.S. ----, 117 S.Ct. 540, 136 L.Ed.2d 396 (1996).

41 Rodriguez, 975 F.2d at 1001.

42

Id.

43 Id. Sixth 35 , Seventh 36 and Ninth 37 Circuits 38 , and rejected by the First 39 and Tenth 40 Circuits.

Two of the circuits have addressed fact s similar to that presented here. In United States v. Rodriguez, the packages contained 97% boric acid and 3% cocaine. 41 The packages were constructed with a base of boric acid, covered on top by a piece of yellow tape , with a thin layer of cocaine spread on the surface of the tape. 42 Each package had cocaine placed into a triangular hole or window dug into the boric acid just below the tape, and was wrapped in plastic and brown

paper. 43 The Third Circuit held that the boric acid and cocaine were not a mixture because (1) the cocaine was not mixed among the particles of the bor ic acid; (2) the cocaine was set on top of the44 Id. at 1005.

45 Id.

46

Id. at 1007.

47 Robins, 967 F.2d at 1388.

48 Id.

49

Id. at 1389.

50

Id. at 1389-1390.

51 Id. at 1391. boric acid; (3) the cocaine and bor ic acid could be distinguished visually by their different colors; (4) the cocaine was easily separated from the boric acid; (5) the boric acid was not used or intended to be used as a cutting agent; and (6) the boric acid did not facilitate the distribution of the

cocaine. 44 The court noted that "it does not seem po ssible that the ... boric acid, which comprised over 97 percent of the weight of the contents of the package could have been used to cut the ... cocaine without rendering the resulting mixture unmarketable." 45 The court held that the defendants should be sentenced based on the weight of the us able cocaine, and not on the weight of the boric

acid. 46

In United States v. Robins, the packages contained 2,779 grams of cornmeal and one-tenth gram of cocaine. 47 The packages were constructed by wrappi ng the plastic bags of cornmeal in duct tape, with a V-shaped cut into the tape and filled with cocaine. 48 The district court had found "that

the cocaine was "stirred' into the cornmeal' in the V-shaped cutmark areas of the packages. 49 " The

Ninth Circuit held that the cornmeal and cocaine were not a mixture because (1) they were each easily distinguished; (2) cornmeal is not a "tool of the trade," a carrier medium or a cutting agent, and did not facilitate the distribution of cocaine; (3) they had to be separated before the cocaine could be effectively used; and (4) although the co rnmeal was "consumable," it was not used as a cutting agent to increase the amount of drug available to consumers. 50 The court noted that "the cornmeal was not used to distribut[e] ... the cocaine ," but was used to "trick a purchaser into buying cornmeal thinking it was cocaine." 51 The court held that the weight of the cornmeal should not have52 Id.

53 The portion that was a "mixture" may have resulted from cocaine that was mixed into the sugar by the arresting officer's knife, or during the chemist's analysis and repackaging. As the cocaine and sugar were weighed separately, it does not appear that an approximation of the weight of the mixture or cocaine under § 2D1, comment. (n. 1) is necessary. been included in calculating the sentence. 52 Here, the package contained 1104.4 grams of suga r, and 10 grams of cocaine. The chemist testified that the package was probably constructed so that "the cocaine present was originally

contained in an area at the surface of the block." Although tests for cocaine on the powder in the package were positive, tests on several lumps of the sugar were negative. The chemist said that it would be impossible to determine the extent of the mixing that occurred during the analysis and repackaging. There was testimony from the chemist and the police officer that the cocaine, as packaged, was not marketable, was not worth mo re than $100, and probably would not have been detectable if mixed with the sugar. Although th e cocaine and sugar are not easily distinguished, sugar is commonly used as a cutting agent, and the sugar was "consumable." The sugar was not used as a cutting agent but was used to trick a purchaser into thinking it was cocaine. And, consistent with the Third Circuit's analysis in Rodriguez, it does not seem possible that the sugar, which comprised over 99 percent of the weight of c ontents of the package could have been used to cut the cocaine without rendering the resulting mixture unmarketable.

III. CONCLUSION
The evidence establishes that the conten ts of the package was not a mixture. 53 Jackson should have been sentenced based on the ten grams of cocaine. We, therefore, hold that the district court erred in basing Jackson's sentence upon th e weight of the entire unmarketable package. Jackson's sentence is VACATED and this cause is REMANDED for resentencing.