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 for 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 violation of 21 U.S.C. § 952. The district court

sentenced Jackson to 46 months' imprisonment. Jackson 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 the traffic stop, the deputy obtained the driver's

permission to search the vehicle. Before searching 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 nearby 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 the package, and it came out with a white powder.

Although the package weighed 1014.4 grams, an ultraviolet spectroscopy showed that approximately
 2

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). 

 5U.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 distribution 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 weight of the cocaine mixture, 1,014.4 grams, and

added the 1.1 grams of marijuana. 

 7U.S.S.G. § 2D1.1. 

10 grams, or about 1 percent, were cocaine.2

Jackson was indicted on two counts of possessing with intent to distribute cocaine (Count

One), and traveling in interstate commerce with the 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 quantity of cocaine should be only the ten grams of

cocaine that was located on the sugar.

At the sentencing hearing, Georgia Bureau of Investigation chemist Larry Wheeler testified

that the contents of the package "appeared to be uniform throughout" but that "some of it was in
 8

R2 at 4. 

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

 10R2 at 10, 12. 

 11R2 at 14. 

 12R2 at 32. 

 13R2 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 the 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 that "(t)his is not 1000 grams of cocaine." He

explained that "(t)his 10 grams was not uniformly mixed throughout the powder and the lumps

because some of the lumps had no cocaine 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 grams of cocaine and 1004 grams of sugar 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."13
 14United 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) ]. 

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

 16500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). 

 17Id. 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 erred in using the weight of the entire package

containing the cocaine because, since it contained 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 quantity 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 substance containing a detectable amount of" cocaine.

The United States Sentencing Guidelines provide that, 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, the 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 substance], 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 "substance,' nor do they have an established common-law
 18Id. 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) ]. 

 19Id. at 462, 111 S.Ct. at 1926 [quoting Webster's Third New International Dictionary 1449

(1986) ]. 

 20Id. at 462, 111 S.Ct. at 1926 [citing 9 Oxford English Dictionary 921 (2d ed.1989)]. 

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

 22Id. at 461, 111 S.Ct. at 1925. 

 23Jackson 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). 

 24U.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 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' "19 or "two substances blended together 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 total quantity of what is distributed, 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 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."22

 Effective November 1, 199323, 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 approximate the weight of the mixture or substance to

be counted.24 In promulgating the amendment, the Sentencing Commission addressed the
 25U.S.S.G. App. C, amend. 484. 

 26Id. 

 27United States v. Pope, 58 F.3d 1567, 1572 (11th Cir.1995) (holding 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). 

 28938 F.2d 1231 (11th Cir.1991). 

 29Although Rolande-Gabriel objected to the inclusion 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 include 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 confiscated 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 cocaine, a cutting agent,

and "liquid waste," or on the mixture of cocaine and 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 case was obviously unusable while mixed with the liquid
 30Id. at 1237. 

 31Id. 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 methamphetamine 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). 

 32United 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). 

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

 34United 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" approach has been adopted by the Second32, Third33, Fifth34,
 35United States v. Jennings, 945 F.2d 129 (6th Cir.1991) (remanding a sentencing calculation

for further consideration, finding that it would inappropriate 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). 

 36United 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). 

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

 38Although 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. 

 39United 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). 

 40United 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). 

 41Rodriguez, 975 F.2d at 1001. 

 42Id. 

 43Id. 

Sixth35, Seventh36 and Ninth37 Circuits38, and rejected by the First39 and Tenth40 Circuits.

Two of the circuits have addressed facts 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 boric acid; (2) the cocaine was set on top of the
 44Id. at 1005. 

 45Id. 

 46Id. at 1007. 

 47Robins, 967 F.2d at 1388. 

 48Id. 

 49Id. at 1389. 

 50Id. at 1389-1390. 

 51Id. at 1391. 

boric acid; (3) the cocaine and boric 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 possible 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 usable 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 wrapping 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 cornmeal 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 have
 52Id. 

 53The 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 sugar, 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 more than $100, and probably would not have been

detectable if mixed with the sugar. Although the 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 contents of the package could have been used to

cut the cocaine without rendering the resulting mixture unmarketable.

III. CONCLUSION

The evidence establishes that the contents 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 the weight of the entire unmarketable package.

Jackson's sentence is VACATED and this cause is REMANDED for resentencing.