FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 January 27, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-13406 

________________________

D.C. Docket No. 01-00126-CR-WTM-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DORIAN GRANT,

Defendant-Appellant..

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(January 27, 2005)

Before CARNES, HULL and HILL, Circuit Judges.
 In return for Grant’s plea, the government agreed to dismiss count 2 of the indictment 1

(possessing LSD with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)). 

At his initial sentencing hearing, the district court informed Grant that the maximum statutory

penalty it could impose would be a sentence of imprisonment of “not less than ten years nor more

than life.” Grant acknowledged to the court that he understood.

 Grant has not contended either in district court or this court that the 2

Apprendi/Blakely/Booker line of decisions affect the validity of his sentence. Apprendi v. New

Jersey, 120 S.Ct. 2348 (2000); Blakely v. Washington, 124 S.Ct. 2531 (2004); United States v.

Booker, 125 S.Ct. 738 (2005). 

2

HILL, Circuit Judge:

This case is one of first impression in this circuit. It involves the weight of

drugs used in re-sentencing the defendant, Dorian Grant, in a drug conspiracy. 

Grant pled guilty to one count of conspiracy to possess with intent to

distribute and conspiracy to distribute 10 grams or more of a ‘mixture or

substance’ containing a detectable amount of lysergic acid dietyhlamide (LSD) in

violation of 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(v), and 846.1

The LSD that Grant and his co-conspirators trafficked in was in liquid form.

The district court sentenced Grant to 108 months’ imprisonment. 

Subsequently, that sentence was vacated and Grant was sentenced to 54 months’

imprisonment. 

Grant now appeals his re-sentencing. We affirm the judgment of the 2

district court.

I. BACKGROUND
 Section 841(b)(1)(A)(v) reads in part: “[i]n the case of a violation of subsection (a) of 3

this section involving . . . 10 grams or more of a mixture or substance containing a detectable

amount of [LSD] . . . . such person shall be sentenced to a term of imprisonment which may not

be less than 10 years or more than life . . . .”

 Based upon this calculation, the maximum statutory penalty Grant faced was

4

imprisonment for not less than ten years and not more than life; not more than a $4,000,000 fine;

and at least five years’ supervised release. His projected guideline sentencing range was 151 to

3

A. Factual Background

The facts are not in dispute. The LSD distributed by college senior Grant

and his co-conspirators was contained in water. The weight of the pure LSD alone

was 0.1263 grams, the equivalent of 2526 dosage units or “hits.” The aggregate

weight of the water and the pure LSD was 103.7 grams (liquid LSD), or

approximately one-third of the liquid contents found in a soda can. 

B. Procedural Background

1. Initial Sentencing

Grant’s indictment charged, and Grant pleaded guilty to, a count containing

a specific drug quantity, i.e., 10 grams or more of a mixture or substance

containing a detectable amount of LSD. Accordingly, Grant faced a statutory

minimum sentence of 10 years. Sections 841(b)(1)(A)(v) and 846. Using the

3

December 16, 2000, edition of the sentencing guidelines manual, the probation

officer, in his presentence investigation report (PSI), attributed 103.7 grams of

LSD to Grant, the weight of the liquid LSD. Grant did not object to the PSI.4
188 months’ imprisonment. 

 U.S.S.G. § 5G1.1(b), entitled “Sentencing on a Single Count of Conviction,” reads in 5

full: “Where a statutorily required minimum sentence is greater than the maximum of the

applicable guideline range, the statutorily required minimum sentence shall be the guideline

sentence.”

4

Prior to hearing, the government filed a motion for downward departure

pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, for Grant’s substantial

assistance to authorities in investigating and prosecuting others involved in the

LSD conspiracy. In response, the district court departed downwardly from the

120-month statutory minimum sentence and sentenced Grant to 108 months’

imprisonment. Sections 841(b)(1)(A)(v), 846; Section 3553(e); Sections

5K1.1and 5G1.1(b). He was specially assessed $100 and given five years’

5

supervised release.

While Grant’s appeal was pending, his defense counsel alerted the

government and the court to a case that had been overlooked at sentencing. See

United States v. Camacho, 261 F.3d 1071 (11 Cir. 2001), cert. denied, 123 S.Ct.

th

1940 (2003) (for sentencing guideline purposes, the weight of pure LSD alone

should be used to determine a defendant’s base offense level). In response, the

government filed a motion for summary remand. This court construed the
5

government’s motion as a confession of error, vacated Grant’s sentence, and

remanded the case for re-sentencing. 

2. Re-sentencing

At re-sentencing, over objections of defense counsel, the district court again

found the 120-month statutory minimum sentence under Section 841(b)(1)(A)(v)

to be the baseline from which to sentence Grant a second time. At hearing, the

district court stated that, “[i]n the Court’s opinion there’s no question that liquid

LSD is a mixture or substance containing a detectable amount of LSD, thereby

triggering Section 841(b)(1)(A)(v) . . . I agree with the probation officer that the

total weight of the liquid LSD solution must be used to determine the mandatory

minimum sentence.” (Emphasis added.)

This time the district court departed downwardly, not by twelve months, but

by sixty-six months. It imposed a sentence upon Grant of fifty-four months, half

his original sentence. See Sections 841(b)(1)(A)(v), 846; Section 3553(e);

Sections 5K1.1, 5G1.1(b). Grant now appeals his re-sentencing.

II. ISSUES PRESENTED

A. In applying the mandatory statutory minimum penalty provision, should

the district court consider the weight of the liquid LSD, as “a mixture or substance
6

containing a detectable amount of LSD” under Section 841(b)(1)(A)(v), or the

weight of the pure LSD alone?

B. As the sentence first entered by the district court was twelve months

below the statutory mandatory minimum, is it bound, upon remand, to consider the

statutory base offense level, 120 months, or may it consider the sentencing

guidelines base offense level, fifteen to twenty-one months under Section

2D1.1(c)?

III. STANDARD OF REVIEW

This court reviews the district court’s application of the sentencing

guidelines de novo and its findings of fact for clear error. Camacho, 261 F.3d at

1073, citing United States v. Trujillo, 146 F.3d 838, 847 (11 Cir. 1998). th

IV. DISCUSSION

A. Contentions of the Parties

1. The First Issue

a. Grant’s Contentions as to the Weight of Liquid LSD Issue

Grant contends that he should be sentenced to no more than fifteen to

twenty-one months’ imprisonment under the sentencing guidelines, based upon his

criminal history, with adjustment for acceptance of responsibility. See Camacho,

261 F.3d at 1074. He argues that, ‘as he was convicted of’ selling .1234 grams of
 Grant does not reference the plea agreement in which he pled guilty to a specific number 6

of grams of drugs.

7

pure LSD, this is the amount of drugs in which he trafficked under Camacho. Id.

6

He claims that in this circuit only the weight of the pure LSD alone, not the liquid

LSD, can be used in determining his sentence under the sentencing guidelines. Id.

In making this argument, Grant acknowledges that the analysis set forth in

Camacho stopped short at the sentencing guidelines, and did not reach the drug

weight issue in the context of the penalty statute. Nevertheless, he claims the

same result should occur. He does this by trying to distinguish Chapman v. United

States, 111 S.Ct. 1919 (1991) and Neal v. United States, 116 S.Ct. 763 (1996),

from his case. 

The Supreme Court held in both Chapman and Neal that LSD impregnated

into blotter paper is a ‘mixture or substance’ containing LSD within the meaning

of the penalty statute; therefore the weight of the carrier medium should be

included in determining the appropriate sentence for trafficking in LSD. 

Chapman, 111 S.Ct. at 1924-26; Neal, 116 S.Ct. at 769. Grant avers, however,

that neither Chapman nor Neal involved liquid LSD and should be read only in the

context of LSD mounted on a carrier medium such as blotter paper. 
 Grant concedes that consumers can get high by drinking liquid LSD, although this is not 7

the way LSD is typically marketed.

8

In essence, Grant is arguing that the LSD here was in an intermediate

wholesale distribution form, unlike the retail consumer form found in Chapman

and Neal. He claims it is much too bulky and much too diluted to be marketed

directly to consumers. It is merely two separate substances contained together in 7

a vial, with no fixed ratio between them. He asserts that there is no enfolding, no

bonding, no impregnating. Similar to clothes contained in a suitcase, or

individuals confined by a courtroom, the LSD is merely encased in water, not

mixed with it or in it.

b. The Government’s Contentions as to the Weight of the LSD Issue

The government avers that this is a straightforward case. The statute

provides for a 10-year mandatory minimum sentence for possession with intent to

distribute 10 grams or more of a mixture or substance containing a detectable

amount of LSD. Section 841(b)(1)(A)(v). Insofar as the penalty statute is

concerned, Grant pled guilty to conspiracy to distribute a specific amount of drugs,

i.e., 10 grams or more. Id. 

Although the facts in Chapman involved LSD mounted on a carrier

medium, i.e., blotter paper, the government argues that the Supreme Court
9

nevertheless defined ‘mixture’ according to its plain and ordinary terms. 

Chapman, 111 S.Ct. at 1925-26. In the case of liquid LSD, the two components

are intermingled, although they can perhaps be regarded as having a separate

existence. Id. (where Webster’s Third New International Dictionary 1449 (1986)

defines a “mixture” 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”). 

The government claims that what Grant distributed, what he was charged

with, and what he pled guilty to, meet the statutory criteria for the imposition of

the ten year mandatory minimum sentence. In addition, the government argues

that it is the weight of the liquid LSD that should be considered, not the weight of

the pure LSD, because the weight of the pure LSD is so minuscule that it does not

adequately reflect the seriousness of the crime, i.e., 2526 drug-induced highs. See

Camacho, 261 F.3d at 1075, citing United States v. Turner, 59 F.3d 481, 486 (4th

Cir.1995)(quoting Section 2D1.1(c), comment. (n.16)).

 In support of its argument that the district court acted properly in this case,

the government cites case law from other circuits holding that liquid LSD is a

‘mixture or substance’ for purposes of the statutory mandatory minimum sentence,

and that the guidelines range is trumped by Section 5G1.1(b). See United States v.
10

Morgan, 292 F.3d 460, 461 (5 Cir.), cert. denied, 123 S.Ct. 45 (2002)(vacating

th

guidelines sentence in liquid LSD case and remanding for imposition of 10-year

minimum sentence mandated by Section 841(b)(1)(A)(v)); see also United States

v. Keresztury, 293 F.3d 750, 759 (5 Cir. 2002)(following Morgan in liquid LSD th

case); United States v. Ingram, 67 F.3d 126, 129 (6 Cir. 1995)(in pre-Neal liquid

th

LSD case, directing district court to apply mandatory minimum sentence on

remand if guidelines range is less); cf. Turner, 59 F.3d at 491-92 (in pre-Neal

liquid LSD case suggesting that district court consider on remand whether

statutory minimum sentence under Section 841(b)(1) and Section 5G1.1(b)

override otherwise applicable guidelines range).

2. The Second Issue

a. Grant’s Contentions to the Vested Downward Departure at Resentencing Issue

Grant claims that the district court erred in finding that Section 5G1.1(b)

applied upon remand. Citing no authority, he claims that it does not apply to cases

in which the defendant has already been granted a downward departure from the

statutory minimum. 

Where ordinarily, Grant claims, Section 5G1.1(b) trumps the otherwise

applicable guidelines range of Section 2D1.1(c), substituting the statutory
11

minimum of ten years, it does not apply on remand once a defendant has already

earned a downward departure under Section 3553(e) and Section 5K1.1. Grant

concedes that he is surprised to find no decisional law squarely addressing this

issue.

b. The Government’s Contentions as to the Vested Downward

Departure at Re-Sentencing Issue

In rebuttal of Grant’s argument that he has a vested right to have no

statutory mandatory minimum sentence be applied on remand, the government

cites United States v. Stinson, 97 F.3d 466 (11 Cir. 1996). Stinson holds that an th

original sentence is wiped away by a vacatur, leaving the district court with a

clean slate upon which to write at a defendant’s re-sentencing. Id. at 469.

The government does concede that Grant had the right to have a Section

5K1.1 motion filed on his behalf at re-sentencing. One was filed. In response, the

district court halved Grant’s original sentence of 108 months to 54 months.

B. The First Issue - The Weight of the LSD 

1. The Statutes and the Sentencing Guidelines

Section 841(b)(1)(A)(v) provides for a mandatory minimum of 10 years’

imprisonment for a violation of subsection (a) [making it unlawful to knowingly or

intentionally manufacture, distribute, dispense, or possess with intent to
12

manufacture, distribute, or dispense, a controlled substance] involving “10 grams

or more of a mixture or substance containing a detectable amount of [LSD].” The

sentencing guidelines parallel the statutory language and requires the base offense

level to be determine based upon the weight of a “mixture or substance containing

a detectable amount of” LSD. Section 2D1.1(c).

2. Supreme Court Cases and Sentencing Guidelines’ Amendment 488

In 1991, in Chapman, the Supreme Court held that the phrase “mixture or

substance containing . . . . LSD” in Section 841(b)(1) refers to “the weight of the

carrier medium upon which the drug is mounted.” Chapman, 111 S.Ct. at 1929.

Two years later, the sentencing commission promulgated an amendment to the

guidelines, reducing the penalties for trafficking in carrier-mounted LSD by

calculating base offense levels, not at the weight of the LSD plus carrier medium

as in Chapman, but by using a standard dosage formula of 0.4 mg. per dose of

LSD (amendment 488). See U.S.S.G. § 2D1.1(c), n. (H). 

In 1996, in Neal, the Supreme Court held that, when calculating penalties

under the statute, amendment 488 does not overcome Chapman’s definition of

“mixture or substance,” and principles of stare decisis require that it adhere to its

earlier decision in Chapman. Neal, 116 S.Ct. at 766. In sum, the sentencing

commission has no authority to amend the penalty statute, the guidelines’
 Counsel for Grant in this case argued before the Supreme Court in Neal, raising the 8

identical issue as he does here, i.e., that, as the sentencing commission is the agency charged with

interpretation of penalty statutes and expert in sentencing matters, its construction of Section

841(b)(2) should be given deference under Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 104 S.Ct. 2778 (1984). See Neal, 116 S.Ct. at 766. The Supreme Court rejected

this argument in Neal, and not surprisingly, we reject it here. 

13

calculation is independent of the statutory calculation, and the statute controls if

they conflict. Id. at 768. The sentencing commission’s dose-based method 8

cannot be squared with Chapman. Id.

3. Eleventh Circuit Precedent

Grant’s initial sentence was vacated and remanded by this court for resentencing by the district court in light of Camacho, at that time, a case of first

impression. This court held in Camacho that, as to the sentencing guidelines, with

regard to LSD contained in a liquid solution, the weight of the pure LSD alone

should be used to ascertain the appropriate base offense level. See also Turner, 59

F.3d 481(prior to Neal, in liquid LSD case, for purposes of the sentencing

guidelines, only the weight of the pure LSD should be used in determining

defendant’s base offense level); United States v. Ingram, 67 F.3d 126, 128 (6 Cir. th

1995); United States v. Jordan, 842 F.Supp. 1031, 1033-34 (M.D.Tenn. 1994)(in

liquid LSD case, only the weight of the pure LSD should be used). As Camacho
14

did not examine the drug weight issue in the context of the penalty statute, as is

present in this appeal, this is an issue of first impression in this circuit. 

4. Other Circuits’ Precedent

Two circuits have held in liquid LSD cases that, although the weight of the

pure LSD alone should be used in determining a defendant’s base offense level

under the sentencing guidelines, a district court could consider the weight of the

liquid LSD when determining the applicability of the mandatory statutory

minimum. See Morgan, 292 F.3d 460; Ingram, 67 F.3d 126. Both cases are

distinguished from the case before us, as, Morgan was reviewed by the Fifth

Circuit for plain error and Ingram was decided prior to Neal. Nevertheless we

find them helpful in our discussion. See also Keresztury, 293 F.3d 750 (5 Cir. th

2002).

5. The Facts Before Us

Morgan most closely aligns with the facts before us. Although the amount

of pure LSD in Morgan was less than 10 grams, Morgan’s guilty plea included his

possessing, with intent to distribute, 10 grams or more of LSD, triggering the tenyear minimum sentence mandated by Section 841(b)(1)(A)(v). Morgan, 292 F.3d

at 464-66. Under Section 5G1.1(b), the Morgan court used the statutory minimum

because it was greater than the maximum sentence under the guidelines. Id.
15

(holding that the market-oriented approach used in Chapman warrants including

the weight of the liquid solution in determining a mandatory minimum sentence).

The same is true in Grant’s case. Unlike the defendant in Camacho, Grant’s

indictment charged, and Granted pleaded guilty to, a count containing a specific

drug quantity, i.e., 10 or more grams. Accordingly, Grant faced a statutory

minimum sentence of ten years. Section 841(b)(1)(A)(v); Section 5G1.1(b).

Similarly to the defendant in Morgan, Grant was informed by the district

court at his initial sentencing that the maximum statutory penalty it could impose

would be a sentence of imprisonment of “not less than ten years nor more than

life.” See note 1 supra. Grant acknowledged to the court that he understood. 

While Grant earnestly urges us to extend the weight of the pure LSD rationale of

Camacho to statutory minimum cases, our reading of Chapman makes it clear that

we may not do so. See Chapman, 111 S.Ct. at 1926.

We conclude that the district court should use the weight of the liquid LSD

in applying Grant’s statutory minimum sentence. Under Chapman, liquid LSD

can be characterized as the carrier medium of choice at the wholesale level. Id.

LSD on blotter paper, LSD in gel form or LSD on a sugar cube can be

characterized as the carrier mediums of choice at the retail end of the distribution

chain. Id. As the Supreme Court noted, LSD drug dealers are free to choose their
16

own carrier medium, scrutinize its weight, and, by so doing, act to minimize their

potential sentences. Id. at 1929 n.6. 

C. The Second Issue - Vested Downward Departure at Re-Sentencing Issue

Without citing any authority, Grant claims that Section 5G1.1(b) does not

apply to cases on remand in which the defendant has already been granted a

downward departure from the statutory minimum. The obvious invalidity of this

claim may explain why it has not been heretofore asserted and decided.

Grant claims that once the district court made the decision to departure

downward at his initial sentencing, it became no longer a sentencing option, but an

“accomplished historical fact,” and, “starting over” as if the downward departure

had not yet “vested” would, in essence, punish Grant for having successfully

challenged his sentence. See North Carolina v. Pearce, 89 S.Ct. 2072 (1969). His

argument overlooks the fact that his resulting sentence is half that first imposed. 

Grant does acknowledge that the law of this circuit, as well as that of six

other circuits is, as a general matter, that when a sentence is remanded on appeal,

the sentencing process commences again de novo. See Stinson v. United States, 97

F.3d 466, 469 (11 Cir. 1996). The vacatur of Grant’s original sentence voids the th

sentence in its entirety and the slate is wiped clean. Id. 
17

The district court was free to reconstruct the sentence utilizing any of the

sentence components. Id. (citations omitted). Here the district court properly

started at the statutory minimum and departed downward. See also United States

v. Head, 178 F.3d 1205, 1206-08 (11 Cir. 1999). th

V. CONCLUSION

The judgment of the district court is affirmed.

AFFIRMED.