In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1857

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES D. STEWART,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 02-CR-50024—Philip G. Reinhard, Judge.

____________

ARGUED NOVEMBER 12, 2003—DECIDED MARCH 16, 2004

____________

Before BAUER, MANION, and ROVNER, Circuit Judges.

BAUER, Circuit Judge. James D. Stewart pleaded guilty,

pursuant to a plea agreement, to one count of conspiring to

manufacture, distribute, and possess with intent to manufacture and distribute methamphetamine in violation of 21

U.S.C. § 846 and § 841(a)(1). Stewart contends that the

district court erred in finding him subject to a ten-year

mandatory minimum sentence under 21 U.S.C. § 841(b)(1)

(A)(viii) by including in the drug quantity for sentencing

purposes 825 grams of a solution generated during a

thwarted attempt to produce methamphetamine. Stewart

argues that the solution could not be used to calculate drug

weight under § 841(b) because it was not usable or consum-
2 No. 03-1857

able. Instead, Stewart argues, only the 2.4 grams of actual

methamphetamine present in the 825-gram solution should

have been counted, in which case he would not be subject to

a ten-year mandatory minimum sentence. Because we

conclude that the government’s evidence does not support

inclusion of the entire solution in the drug quantity, we

vacate Stewart’s sentence and remand for resentencing.

I. BACKGROUND

In March 2002, Stewart and a co-defendant were arrested

while in Stewart’s vehicle. In the back seat was a thermos

containing the telltale ingredients of the pair’s attempt to

manufacture methamphetamine. At Stewart’s sentencing

hearing, DEA Special Agent Marc Folven gave conflicting

testimony about the contents of the thermos when it was

seized. On direct examination he said it contained crushed

pseudoephedrine tablets, anhydrous ammonia, lithium

strips from batteries, and ether. On cross-examination,

however, Agent Folven omitted mention of the ether. The

first two ingredients, when combined, together with a

catalyst such as lithium, react to form a solution containing

methamphetamine. After the reaction is complete, the

undissolved solid materials are normally filtered out, and

ether is then used as a solvent to separate the solution into

two parts—a top layer constituting “methamphetamine

base” and the rest liquid byproduct. Agent Folven conceded

that Stewart would have needed to take additional steps to

produce usable methamphetamine. First, to further process

the contents of the thermos into methamphetamine base,

Stewart had to filter out the remaining solid materials and

separate the liquid byproducts leaving the base. From

there, to further process the liquid methamphetamine base

into the powdered form typically consumed by methamphetamine users, Stewart had to add hydrochloric acid

gas—often made from drain cleaner and salt—to crystallize
No. 03-1857 3

the methamphetamine base into powder. Following this

final stage of processing, the liquid remaining after the

methamphetamine base crystalized into powder would be

considered waste, but would contain trace amounts of

methamphetamine.

Although the record developed by the government is ambiguous, it appears that the investigating agents filtered

the solid materials from the contents of the thermos, and

weighed only the remaining solution in arriving at the 825-

gram figure. A DEA chemist estimated, and both parties

stipulated, that the entire 825 grams contained 2.4 grams

of pure methamphetamine, which, after processing, Stewart

could distribute in powder form. In addition to the contents

of the thermos, Stewart and his co-defendant also had with

them in the car when they were arrested several bags of

fully processed powdered methamphetamine weighing 18

grams total and containing 3.1 grams of pure methamphetamine.

Stewart pleaded guilty to a count alleging that he conspired to manufacture, distribute, and possess with intent

to manufacture and distribute 500 or more grams of

methamphetamine, but reserved the right to challenge at

sentencing the drug amount. For guidelines purposes the

district court determined that Stewart’s offense involved at

least five grams but not more than 20 grams of actual, or

pure, methamphetamine and thus calculated his imprisonment range to be 100 to 125 months. See U.S.S.G.

§ 2D1.1(a)(3), (c)(7). But for purposes of § 841(b) and its

mandatory minimums, the district court concluded that the

825-gram solution from the thermos triggered a ten-year

mandatory minimum under § 841(b)(1)(A)(viii) because it

constituted “500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine.” As

a result, the district court adjusted the guideline range to

120 to 125 months, see U.S.S.G. § 5G1.1(c), and sentenced

Stewart to 120 months.
4 No. 03-1857

In determining whether Stewart was subject to a mandatory minimum sentence under § 841(b), the district court

purported to rely upon United States v. Johnson, 999 F.2d

1192, 1194-96 (7th Cir. 1993), in which we held that waste

water left over from the production of crack cocaine, even

though it held trace amounts of cocaine, could not be used

in calculating drug weight under the sentencing guidelines

because it “was not marketable and could not in any way be

used as a drug.” The district court reasoned that, unlike the

waste water in Johnson, the entire 825-gram solution

should be counted because it could be sold to someone who

could either finish processing it into methamphetamine

powder, or mix the solution with a soft drink and ingest it

directly. The government concedes in its brief, however,

that the solution was not ingestible in the form it was

seized, and that in concluding otherwise the court apparently misconstrued Agent Folven’s testimony. What Agent

Folven said is that methamphetamine base can be mixed

into a soft drink, but he did not testify that Stewart’s

solution was methamphetamine base. Indeed, the agent’s

testimony leaves little doubt that further processing of

Stewart’s solution would be required to separate the methamphetamine base. The solution could not have been safely

ingested because it still contained anhydrous ammonia, a

corrosive chemical that can be toxic if inhaled. See United

States v. Morrison, 207 F.3d 962, 964 (7th Cir. 2000); see

also United States v. Innie, 7 F.3d 840, 845 (9th Cir. 1993)

(liquid contained methamphetamine “along with unreacted

chemicals and by-products both of which are poisonous if

ingested”); United States v. Jennings, 945 F.2d 129, 137

(6th Cir. 1991) (defendants were “attempting to distill

methamphetamine from the otherwise uningestable [sic]

byproducts of its manufacture”).

The government, though, does not clarify whether Agent

Folven was also referring to methamphetamine base, rather

than to the solution possessed by Stewart, when he testified
No. 03-1857 5

about whether the solution could be sold to others. The

transcript evidences that he meant that methamphetamine

base could be sold: 

Q. If you could explain. When is the methamphetamine actually produced in any form for the first

time that it’s produced during this process?

A. It’s when the anhydrous ammonia, the lithium

strips, and the pseudoephedrine are combined. It

starts producing the methamphetamine. I mean,

it’s not powder form, it’s a liquid type of form, but

that’s when that chemical reaction takes place to

produce the methamphetamine.

Q. So, the methamphetamine at that point is in a liquid form?

A. Yes, sir.

Q. So, the methamphetamine, does it have any—in the

liquid form, does it have any value, as far as marketability? Could it be sold and used at that point?

A. Yes, sir.

Q. And how is that?

A. There’s been people that will buy the liquid meth,

also, and people that use the liquid meth out there,

also, methamphetamine base. They’ll drink it or

other various ways to use it that way.

Q. Can it be injected?

A. Probably not in that way. I think it’s more or less

drank that way.

Q. But you can—you say it does have a market in that

stage.

A. Yes, sir.
6 No. 03-1857

Q. And did I also hear your answer is that some people

might use it in that stage?

A. Yes, sir.

Q. How?

A. It’s a very pure form of meth. I’ve interviewed other

users, and they’ve said that they’ve drank it before.

Sentencing Tr. at 38-39. If Agent Folven was referring to

methamphetamine base throughout this portion of his testimony, then there is no evidence that the solution possessed by Stewart had reached the stage in processing

where it could have been sold to others for completion.

The district court also read three opinions from other

circuits as holding that when a defendant is caught in the

process of manufacturing drugs, the sentencing court can

include in the drug weight anything found no matter its

stage of completion. Two of the three cases, though, actually

reach the opposite conclusion—that what is unusable; i.e.,

not consumable as a drug, must be excluded in calculating

drug weight. See United States v. Newsome, 998 F.2d 1571,

1575-79 (11th Cir. 1993) (“the gross weight of ‘unusable

mixtures’ should not be equated with the weight of a

controlled substance for sentencing purposes”; applying

sentencing guidelines); United States v. Sprague, 135 F.3d

1301, 1306 (9th Cir. 1998) (drug weight must exclude

substances that must be removed to render solution

containing methamphetamine usable; applying guidelines).

Only one of the cases arguably supports the district court’s

drug quantity finding. See United States v. Beltran-Felix,

934 F.2d 1075, 1076 (9th Cir. 1991) (holding that entire

weight of solution containing small amount of methamphetamine should be used to calculate mandatory minimum

sentence under § 841(b) even though solution was in early

stage of production).
No. 03-1857 7

1 The Court used the following definitions: “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 another. 9 Oxford English Dictionary 921 (2d ed.

1989).” Chapman, 500 U.S. at 462.

II. DISCUSSION

On appeal Stewart argues that sentencing courts, when

applying the statutory penalties of § 841(b), should be constrained to exclude from the drug weight any unusable

portion of a solution containing methamphetamine, just as

they must do under the sentencing guidelines. The government counters that the plain language of § 841(b) requires

inclusion of the full weight of any solution containing a detectable amount of methamphetamine, regardless of what

else is in the solution.

A. Only usable or consumable mixtures or substances can

be included in drug quantity under § 841(b)

Under § 841(b), a person who commits a drug offense

involving 500 grams or more of a “mixture or substance

containing a detectable amount of methamphetamine” must

be imprisoned for at least 10 years. The Supreme Court, in

Chapman v. United States, 500 U.S. 453, 461 (1991),

considered the meaning of “mixture or substance” under §

841(b). The Court defined the terms in accord with their

plain, dictionary meanings1

 and held that “blotter paper

customarily used to distribute LSD is a ‘mixture or substance containing a detectable amount’ of LSD.” The Court

explained that this result was consistent with the purpose

of § 841, as expressed in the statute’s legislative history.
8 No. 03-1857

The Court noted that Congress had “adopted a ‘marketoriented’ approach to punishing drug trafficking.” Id. (citing

H.R. Rep. No. 99-845, at 11-12, 17 (1986)). Under a marketoriented approach, “the total quantity of what is distributed, rather than the amount of pure drug involved, is used

to determine the length of the sentence.” Id. The Court

reasoned that this sentencing scheme was rational because

it “assigns more severe penalties to the distribution of

larger quantities of drugs,” including the “street weight” of

diluted drugs. Id. at 465. The Court also noted that because

carrier mediums (e.g., blotter paper for LSD) and cutting

agents (i.e., substances added to decrease purity or increase

amount of drugs for sale) aid in the distribution of drugs,

their weight should be included for sentencing. Id. at 465-

66. The Court explained that “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.” Id. at 460. 

Prior to Chapman, in the context of reviewing drug

quantity findings under the sentencing guidelines, this

court and several others had held that any “mixture or

substance” containing a detectable amount of drug should

be counted in the drug weight, without regard to whether

it was usable or consumable. See, e.g., United States v.

Garcia, 925 F.2d 170, 172-73 (7th Cir. 1991) (characterizing

damp marijuana as a “mixture” of water and marijuana);

Beltran-Felix, 934 F.2d at 1076-77 (holding that solution

that had not yet been processed into usable methamphetamine was a “mixture” under § 841(b)); United States v.

Mueller, 902 F.2d 336, 345 (5th Cir. 1990) (holding that

solution that had not yet been processed into usable

methamphetamine was a “mixture” under guidelines).

Chapman, though, sparked divergent views about calculating drug quantity, both under § 841(b) and the guide-
No. 03-1857 9

lines. The First and Tenth Circuits held after Chapman

that the “plain language” of § 841(b) compels including in

the drug weight for statutory purposes any part of a solid or

liquid containing a detectable amount of drug. See United

States v. Richards, 87 F.3d 1152, 1157 (10th Cir. 1996)

(holding that solution not yet processed into usable methamphetamine was a “mixture”); United States v. MahechaOnofre, 936 F.2d 623, 625-26 (1st Cir. 1991) (holding that

cocaine combined with acrylic material to form part of

suitcase was a “mixture”).

In contrast, after Chapman this court and six others have

generally applied what has come to be known as the

“market-oriented” approach when defining “mixture or

substance.” Under a “market-oriented” approach, only usable or consumable mixtures or substances are included in

the drug quantity for sentencing purposes. See, e.g., United

States v. Tucker, 20 F.3d 242, 244 (7th Cir. 1994) (including

weight of moisture in fully processed, consumable crack);

Johnson, 999 F.2d at 1196-97 (excluding weight of unusable

waste water in solution composed of waste water and traces

of cocaine base); United States v. Coleman, 166 F.3d 428,

432 (2d Cir. 1999) (including weight of moisture in fully

processed, consumable crack); United States v. Acosta, 963

F.2d 551, 553-54 (2d Cir. 1992) (excluding weight of creme

liqueur from solution containing creme liqueur—used to

conceal the drug—and cocaine); United States v. BerroaMedrano, 303 F.3d 277, 284 (3d Cir. 2002) (including entire

weight of heroin that was heavily diluted with common

cutting agents); United States v. Rodriguez, 975 F.2d 999,

1007 (3d Cir. 1992) (excluding weight of unusable and toxic

boric acid from packages containing boric acid and a thin

layer of cocaine); United States v. Robins, 967 F.2d 1387,

1389 (9th Cir. 1992) (excluding weight of cornmeal combined with cocaine); United States v. Rolande-Gabriel, 938

F.2d 1231, 1237-38 (11th Cir. 1991) (excluding weight of

unusable liquid carrier medium where cocaine was dis-
10 No. 03-1857

solved in liquid). Although some circuits have applied a

market-oriented approach only to § 2D1.1, we have made

clear that the same analysis governs both the statutory

penalties and those of the guidelines. See Tucker, 20 F.3d at

244; Johnson, 999 F.2d at 1196-97.

At the time Chapman was decided, the United States

Sentencing Commission was explicit that the language of

§ 2D1.1, referring to “the entire weight of any mixture or

substance containing a detectable amount of the controlled

substance,” had the same meaning as that in § 841(b).

U.S.S.G. § 2D1.1, comment. (n.1) (superceded effective Nov.

1, 1993); see also Neal v. United States, 516 U.S. 284, 290

(1996). Responding to the inter-circuit conflict arising after

Chapman, the Sentencing Commission in 1993 amended

Application Note 1 to § 2D1.1 to make explicit that sentencing courts should exclude “materials that must be separated

from the controlled substance before the controlled substance can be used.” See id. App. C, Amdt. 484; § 2D1.1,

comment. (n.1) (effective Nov. 1, 1993). Before this amendment, courts interpreting the language “any mixture or

substance” in § 2D1.1 presumably believed that their

analyses applied equally to both the guidelines and

§ 841(b). Indeed, although in Johnson we were specifically

addressing a drug weight for calculation under the guidelines, our opinion rests squarely on our reading of § 841(b)

and Chapman, not on any language unique to § 2D1.1.

Thus, Johnson’s reasoning also answers the question posed

in this case about § 841(b), and the government does not

even contend that Johnson is limited to the guidelines. 

In fact, in Johnson we explicitly interpreted Chapman

to require a market-oriented approach in determining the

meaning of “mixture or substance” under both § 841(b)

and the pre-amendment version of § 2D1.1: “To read the

statute or Chapman as requiring inclusion of the weight of

all mixtures, whether or not they are usable, ingestible, or

marketable, leads to absurd and irrational results con-
No. 03-1857 11

trary to congressional intent.” Johnson, 999 F.3d at 1197

(emphasis in original). We recognized that persons who possess solutions at an early stage of the manufacturing

process, or waste product in its aftermath, are not attempting to increase the amount of salable drug by adding a

dilutant, cutting agent, or carrier medium, as was the

concern in Chapman. See id. at 1196; see also Richards, 87

F.3d at 1159 (Seymour, J., dissenting). The partially processed solution may tell us how much of a drug can be

produced, and the waste might tell us how much was produced, but neither material is usable in that form. Consequently, rather than weighing everything, it would seem

reasonable to include only the amount of usable or consumable substances, Johnson, 999 F.2d at 1196, or the amount

of drug that the defendant could have extracted from

something that is unusable at the time of arrest, Jennings,

945 F.2d at 137.

As Stewart argues, weighing everything for sentencing

purposes can lead to irrational results. We said as much in

Johnson, posing the hypothetical of a farmer plowing remnants of his marijuana crop into the topsoil or a defendant

dumping drugs into the toilet and the sentencing court

considering the earth in the field or the water in the toilet

bowl as part of a mixture that should be weighed along with

the drugs. Johnson, 999 F.2d at 1196 n.8. We reasoned that

such results would be contrary to legislative intent because

Congress was concerned with mixtures that eventually will

reach the streets. Id. (citing Chapman, 500 U.S. at 463).

And while we thus agreed that “cutting agents and

dilutants can be factored into the weight calculation,” id. at

1197, we also concluded that substances which do not

“ ‘facilitate the distribution,’ ” should not be counted because

“there is no rational basis to a sentence based on the entire

weight of a useless mixture,” id. at 1196 (quoting Chapman,

500 U.S. at 466).
12 No. 03-1857

Although two circuits have declined to apply a marketoriented approach, nothing in those cases undermines our

reasoning in Johnson. In fact, we made clear in Johnson

that we disagreed with the First Circuit when that court

included the entire weight of acrylic material combined

with cocaine in Maheche-Onofre and gave no consideration

to the fact that the material was not ingestible. See Johnson, 999 F.2d at 1196 n.9.

B. No distinction for methamphetamine in marketoriented approach

Four of the seven circuits, including this one, that have

read Chapman to permit counting only usable or consumable substances as part of drug weight have not yet had

occasion to apply this approach to methamphetamine. The

Sixth Circuit, one of the three courts that after Chapman

have undertaken to decide whether methamphetamine

presents a special situation warranting a unique rule, held

in a case interpreting the pre-amendment version of § 2D1.1

that a market-oriented approach should apply to methamphetamine just like any other drug. See Jennings, 945 F.2d

at 137 (directing district court to include only the amount

of methamphetamine that defendants might have produced

from solution in preliminary stage of production). In

contrast, the Fifth Circuit has held that a market-oriented

approach should not apply to methamphetamine. See

United States v. Palacios-Molina, 7 F.3d 49, 53 (5th Cir.

1993) (stating that Chapman’s market-oriented analysis

applies to cocaine, but does not apply to methamphetamine

or PCP). The Fifth Circuit, in Palacios-Molina, noted that

in Chapman the Supreme Court had observed that methamphetamine and PCP are treated differently than other
No. 03-1857 13

2 “The terms ‘PCP (actual)’ and ‘Methamphetamine (actual)’ refer

to the weight of the controlled substance, itself, contained in the

mixture or substance. For example, a mixture weighing 10 grams

containing PCP at 50% purity contains 5 grams of PCP (actual).

In the case of a mixture or substance containing PCP or methamphetamine, use the offense level determined by the entire weight

of the mixture or substance, or the offense level determined by the

weight of the PCP (actual), or methamphetamine (actual),

whichever is greater.” U.S.S.G. § 2D1.1, Drug Quantity Table

(November 1992).

3 For example, at the time Palacios-Molina was decided,

§ 841(b)(1)(a)(viii) provided for a mandatory minimum of 10 years

for a violation involving “100 grams or more of methamphetamine,

its salts, isomers, and salts of its isomers or 1 kilogram or more of

a mixture or substance containing a detectable amount of

methamphetamine, its salts, isomers, or salts of its isomers,”

while the 10-year mandatory minimum for heroin, cocaine, and

LSD was based only on a mixture or substance containing a detectable amount of the drug. Although Congress did not explain

why it based the mandatory minimum sentences for methamphetamine and PCP on the amount of pure drug as well as a mixture,

one commentator has suggested that the likely reason is that

those drugs are more commonly sold in pure forms. See Todd E.

Gonyer, comment, Federal Sentencing in a Post-Chapman World:

What is a ‘Mixture or Substance’ Anyhow?, 46 U. Kan. L. Rev. 983,

991 n.69 (1998).

drugs under the guidelines2 and § 841(b),3 in that sentencing could be based on either the weight of a mixture or the

pure drug. Palacios-Molina, 7 F.3d at 53; United States v.

Sherrod, 964 F.2d 1501, 1509-10 (5th Cir. 1992). The Fifth

Circuit thus concluded that the Court had not intended to

extend the market-oriented approach to methamphetamine.

Id. The court also stated that, in contrast to the otherwise

innocuous transport liquid with which the cocaine was
14 No. 03-1857

combined, precursor chemicals and waste materials involved in methamphetamine cases are not innocuous

because they are necessary to manufacturing. PalaciosMolina, 7 F.3d at 53. The Ninth Circuit adopted similar

reasoning when it stated that its pre-Chapman decision in

Beltran-Felix, where the court endorsed including in drug

quantity the entire weight of a solution containing both

methamphetamine and unusable byproducts of the manufacturing process, is consistent with Chapman. Robins, 967

F.2d at 1390; see Beltran-Felix, 934 F.2d at 1076. According

to the Ninth Circuit, the “solution facilitated the distribution of the methamphetamine” since the drug “could not

have been produced without it,” and thus the entire solution

was properly counted for sentencing purposes. Robins, 967

F.2d at 1390. The Eighth Circuit, although it has not

affirmatively adopted a market-oriented approach, used

similar reasoning when it counted for statutory purposes a

partially processed solution containing methamphetamine

because the solution would eventually be processed into a

distributable product. See United States v. Kuenstler, 325

F.3d 1015, 1023 (8th Cir. 2003). 

Though the government makes no argument that our

adoption of the market-oriented approach in Johnson covers

some drugs but not methamphetamine, we observe for the

sake of completeness that we reject the Fifth and Ninth

Circuits’ reasoning. The fact that Congress allows sentencing based on the pure amount of methamphetamine as an

alternative to weighing a mixture containing the drug

simply begs the question of what is meant by “mixture” in

this context and in no way points to the conclusion that a

special rule should be carved out for methamphetamine.

Because Congress was concerned with distributable or

usable drugs, it makes no sense that methamphetamine in

an unusable and undistributable form be counted differently than cocaine in an unusable and undistributable

form. Congress’s concern as identified in Chapman was not
No. 03-1857 15

combinations of unrefined or unfinished drugs and substances that will not be consumed and may even be toxic,

but the amount of usable drug that will be available for

distribution to consumers. Under the Fifth and Ninth

Circuits’ reasoning, the waste water remaining after the

production of crack in Johnson would have to be counted as

“drug” weight because the crack “could not have been

produced without it,” see Robins, 967 F.2d at 1390, but we

instead held that this unusable byproduct does not count for

sentencing, see Johnson, 999 F.2d at 1196.

C. Manufacturing versus distribution

Essentially, the government expresses no real disagreement with what we have said so far, but instead argues

that, even if it is improper to include the weight of the

unusable portion of a solution when imposing a sentence for

distribution offenses, Stewart’s conviction is for manufacturing and for this offense the full 825-gram solution still

should be counted. The government points to the concurring

opinion in Johnson, which cautions against reading our

opinion as answering whether the waste water generated

from producing crack could have been included for sentencing had the defendant been charged with manufacturing

cocaine, rather than possession with intent to distribute.

Johnson, 999 F.2d at 1199. But the concurrence does not

advocate a different rule for manufacturing offenses, and

the government, other than saying that there ought to be a

different rule for manufacturing cases, never explains why.

Further, to our knowledge no court, even after the concurrence in Johnson, has drawn any distinction between

possession and manufacturing offenses. 

The government’s argument fails for two reasons. Most

fundamentally, the government mischaracterizes the nature

of Stewart’s conviction. Stewart was convicted not of

distribution or manufacturing, but of conspiracy to do both.
16 No. 03-1857

Although the government wants to call this a manufacturing case out of convenience, that is not how the government

charged it. Moreover, § 841(a)(1) makes criminal the

manufacture, possession, or distribution of controlled

substances, and § 841(b) says uniformly to consider the

weight of a “mixture or substance containing a detectable

amount of drug.” Nothing in the statute suggests that

“mixture or substance” should be defined differently

depending upon how § 841(a) is violated, and the government cites no authority, not even legislative history, for this

proposition. At oral argument, the government simply

offered its view that higher penalties should be reserved for

manufacturing offenses because without the manufacture

of drugs, there can be no distribution. 

But what the government would prefer the rule to be as

a policy matter is irrelevant, and we see no basis to read

§ 841(b) differently for distribution and manufacturing

offenses. It is clear that if Stewart had completed processing the 825 grams of liquid into usable methamphetamine

and discarded the waste before being caught, only the

amount of finished product would be attributed to him for

sentencing. See, e.g., United States v. King, 356 F.3d 774,

779-80 (7th Cir. 2004) (sentence based on 145 grams of

usable methamphetamine defendant sold to undercover

detective). Similarly, if Stewart had been caught with his

raw materials before starting to manufacture the methamphetamine, only the amount of finished product that

could be produced from the raw materials would have been

attributed to him for sentencing. See United States v.

Eschman, 227 F.3d 886, 890-91 (7th Cir. 2000); U.S.S.G.

§ 2D1.1 comment. (n.12). It would be illogical to include the

entire weight of the 825-gram solution in the drug quantity—thus subjecting Stewart to a mandatory minimum

sentence—merely because Stewart was caught after he had

combined the raw materials, but before he had produced

usable methamphetamine; to do so would reward defen-
No. 03-1857 17

dants able to complete the manufacturing process without

detection. See Newsome, 998 F.2d at 1578 (“We see no

principled distinction for sentencing purposes between

‘precursor chemicals’ destined for conversion into a controlled substance and combinations of those chemicals that

have been partially processed and are closer to the finished

product at the time they are discovered.”).

D. Marketable versus usable

The government argues alternatively that, even under

Johnson’s market-oriented approach, the district court

should be affirmed because it found that the 825-gram

solution was “marketable” to others who could finish the

processing. As discussed above, the court may have misinterpreted the DEA agent’s testimony that the solution

possessed by Stewart could be sold to others. Moreover, we

hold that it is immaterial under a market-oriented approach whether a solution can be sold to others for further

processing if that solution is unusable and unconsumable.

The government offers no support for its argument that

“marketable” as it uses the term is consistent with the

“marketable” or “market-oriented” approaches as analyzed

in the cases. All courts that have interpreted Chapman and

applied a market-oriented approach have used “marketable”

to mean “usable” or “consumable” or “ingestible” and have

declined to include the weight of materials that must be

separated from the drug before the drug can be consumed.

See Johnson, 999 F.2d at 1196 (“Under a market-oriented

approach, when the mixture is not ingestible and therefore

not marketable there is no rational basis to a sentence

based on the entire weight of a useless mixture.”); Tucker,

20 F.3d at 244 (Because users “need not wait until the

water evaporates before using the drug,” the seized combination of water, cocaine and baking soda “comport[s] with

the common understanding of ‘mixture’ recognized in
18 No. 03-1857

Chapman.”); Rodriguez, 975 F.2d at 1007 (holding that a

usable/unusable differentiation best follows the reasoning

in Chapman). Further, at oral argument the government

conceded that the 825-gram solution would likely have a

lower value than the 2.4 grams of pure methamphetamine

contained in the solution because of the labor yet to be

expended in removing the unusable ingredients. It would be

illogical to impose higher penalties for a solution that has

less value than the pure drug contained in the solution

merely because the solution arguably could be sold to

someone at some price.

III. CONCLUSION

For the foregoing reasons, we reiterate our conclusion in

Johnson that only usable or consumable mixtures or substances can be used in determining drug quantity under

§ 841(b). Under this approach, only the amount of pure drug

contained in an unusable solution, or the amount of usable

drug that is likely to be produced after that unusable

solution is fully processed, may be included in the drug

quantity under the statute. Although the district court

purported to use a market-oriented approach, it did not

exclude the unusable portion of the 825-gram solution from

the drug quantity for purposes of § 841(b). Under a marketoriented approach, as described above, Stewart would not

be subject to a ten-year mandatory minimum sentence,

which requires 500 or more grams of a mixture or 50 or

more grams of pure methamphetamine. Accordingly, we

VACATE Stewart’s sentence and REMAND with directions to

the district court to sentence Stewart within his guideline

range of 100-125 months.
No. 03-1857 19

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-16-04