1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-23-1995

USA v Hanlin

Precedential or Non-Precedential:

Docket 94-3498

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Recommended Citation

"USA v Hanlin" (1995). 1995 Decisions. Paper 59.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/59
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-3498 

 

 UNITED STATES OF AMERICA 

v. 

 PATRICK HANLIN, 

 COURTLY JAY MULLER, 

 Patrick Hanlin, 

 

 Appellant 

 

 Appeal from United States District Court 

 for the Western District of Pennsylvania 

 (D.C. No. 90-cr-00006-01E) 

 

 Argued on January 30, 1995 

 Before: SCIRICA, ROTH AND SAROKIN, Circuit Judges

 (Opinion Filed February 23, 1995) 

 

William P. Weichler, Esquire (Argued) 

Ambrose, Friedman & Weichler 

319 West 8th Street 

Erie, PA 16502-1495 

 Attorney for Appellant 

Frederick W. Thieman 

United States Attorney 

Bonnie R. Schlueter (Argued) 

Assistant U.S. Attorney 

633 U.S. Post Office & Courthouse 
Pittsburgh, PA 15219 

 Attorneys for Appellee 

 

 OPINION OF THE COURT 

 

ROTH, Circuit Judge: 

 Patrick Hanlin ("Hanlin") appeals the district 

court's denial of his motion for a reduction in sentence. For 

the reasons stated herein, the district court's judgment is 

affirmed. 

I. 

 On February 27, 1990, a jury in the Western 

District of Pennsylvania convicted Hanlin of: (1) conspiracy to 

distribute and possession with intent to distribute LSD, in 

violation of 21 U.S.C. § 846; and (2) possession with intent to 

distribute in excess of 10 grams of LSD, in violation of 21 

U.S.C. § 841(a)(1) and 841(b)(1)(A)(v). Hanlin's offense 

involved 24.448 grams of a blotter paper/LSD mixture or, as 

alternatively quantified, 3354 dosage units of LSD. At his 

original sentencing, the district court determined that the 

proper weight of the LSD for sentencing purposes was the weight 

of the pure LSD (3354 LSD dosage units x .05 milligrams per 

dosage unit1 = 167.7 mgs of LSD) rather than the combined weight 

 

 1 The Drug Enforcement Administration has determined that 

the standard dosage unit of pure LSD is 0.05 mgs per dose. 

U.S.S.G. § 2D1.1, comment. (backg'd). 
of the LSD plus the paper carrier medium. Based upon this 

finding, the district court sentenced Hanlin to two terms of 30 

months of imprisonment, to run concurrently, three years of 

supervised release, and a $50 special assessment on each count of 

conviction. 

 Both parties appealed. Hanlin challenged the 

sufficiency of the evidence to sustain his conviction, and the 

government challenged the district court's decision to use the 

weight of the pure LSD, rather than the combined weight of the 

LSD and the paper carrier medium. 

 On July 15, 1991, in an unpublished opinion, this 

Court vacated Hanlin's sentence and remanded the case to the 

district court for resentencing in accordance with the Supreme 

Court's decision in Chapman v. United States, 500 U.S. 453, 111 

S. Ct. 1919 (1991). See United States v. Hanlin, Nos. 90-3616, 

90-3688, 90-3689 & 90-3706 (3d Cir. July 15, 1991). The Chapman

decision dictates that the weight of the blotter paper, upon 

which LSD is found, must be included when determining the 

appropriate sentence for trafficking in LSD under 21 U.S.C. § 

841(b)(1). 

 Applying the Chapman decision, the district court 

determined the weight of the LSD/paper combination to be 24.448 

grams and, accordingly, sentenced Hanlin to 120 months on both 

counts of conviction, to run concurrently, two three-year terms 

of supervised release, and a special assessment of $50 on each 

count of conviction. App. 66-69. The court was constrained to 

impose the 120-month sentence because 21 U.S.C. § 841(b)(1)(A)(v) 
mandates a minimum ten-year sentence for a person convicted of 

possession with intent to distribute in excess of 10 grams "of a 

mixture or substance containing a detectable amount of" LSD, and 

Hanlin had been in possession of 24.448 grams of such a LSD/paper 

"mixture." 

 On March 31, 1994, Hanlin filed the present motion 

for a reduction of sentence, relying on the amendment to 

Guideline § 2D1.1(c) ("Amendment 488"), effective as of November 

of 1993. The amended guideline, in an explicatory footnote, 

provides: 

 In the case of LSD on a carrier medium (e.g., 

a sheet of blotter paper), do not use the 

weight of the LSD/carrier medium. Instead, 

treat each dose of LSD on the carrier medium 

as equal to 0.4 mg of LSD for the purposes of 

the Drug Quantity Table. 

U.S.S.G. § 2D1.1(c). 

 The Sentencing Commission chose the 0.4 mg per 

dose approach in the hope of alleviating "unwarranted disparity 

among offenses involving the same quantity of actual LSD (but of 

different carrier weights)" and to bring sentences for LSD in 

line proportionately with sentences involving other more 

dangerous controlled substances, such as PCP. U.S.S.G. App. C, 

amend. 488. Although the Drug Enforcement Administration's 

standard dosage unit for pure LSD is 0.05 mg, the Sentencing 

Commission chose to use 0.4 mg per dosage weight in order to 

assign some weight to the carrier medium. Id. The Commission 

did this in recognition that: (1) "offense levels for most other 

controlled substances are based upon the weight of the mixture 
containing the controlled substance without regard to purity;" 

and (2) the Chapman decision holds that "the term `mixture or 

substance' in 21 U.S.C. § 841(b)(1) includes the carrier medium 

in which LSD is absorbed." Id. 

 In his motion for a reduction of sentence, Hanlin 

asserted that Amendment 488 created a conflict between the 

Sentencing Guidelines and the Supreme Court's interpretation in 

Chapman of 21 U.S.C. § 841(b)(1), which imposes the mandatory 

minimum sentence. Particularly, Hanlin pointed out that, if the 

court were to calculate the weight of the LSD involved in his 

offense under Amendment 488 (3354 dosage units x 0.4 mgs per 

dosage unit = 1341.6 mgs or 1.34 grams of LSD), he would not be 

subject to the 10-year mandatory minimum sentence under § 

841(b)(1). He claimed that he must be resentenced in accordance 

with the weight calculation of Amendment 488; otherwise, his 

rights to due process and equal protection would be violated. 

 The Government responded to Hanlin's motion, 

asserting that the district court must comply with the holding of 

Chapman, which requires the entire weight of the carrier medium 

(i.e., blotter paper) to be included in the weight measurement 

applicable to determine the mandatory minimum sentence under § 

841(b)(1). The Government further pointed out that the 

Commentary to § 2D1.1(c), as modified by Amendment 488, provides 

that, in spite of the new 0.4 mg dosage weight allocated to LSD, 

"this approach does not override the applicability of `mixture or 

substance' for the purpose of applying any mandatory minimum 

sentence (see Chapman; § 5G1.1(b))." U.S.S.G. § 2D1.1, comment. 
(backg'd). Thus, the Government concluded that Hanlin's motion 

for a reduction of sentence should be denied. 

 On August 19, 1994, the district court denied 

Hanlin's motion, reasoning that the commentary to § 2D1.1 (quoted 

above) contradicts Hanlin's contention that the court must use 

Amendment 488's weight calculation for purposes of the mandatory 

minimum sentence statute. App. 97-99. This appeal followed. 

Applying the plenary standard of review, we affirm. 

II.

 Hanlin argues that the district court erred, in 

determining his eligibility for a mandatory minimum sentence, by 

employing the "entire weight" approach adopted by the Supreme 

Court in Chapman rather than calculating the weight of the LSD 

pursuant to amended § 2D1.1(c).2 Although it might be sensible 

to use only one weight calculation method under both 21 U.S.C. § 

841(b)(1) and U.S.S.G. § 2D1.1(c), it appears that neither the 

Sentencing Commission nor Congress, when it permitted the 1993 

amendments to take effect in November 1993, had that intent. 

 In Chapman, the Supreme Court held that "it is the 

weight of the blotter paper containing LSD, and not the weight of 

the pure LSD, which determines eligibility for the minimum 

sentence" under § 841(b)(1) of Title 21. 500 U.S. at 455; 111 S. 

Ct. at 1922. In reaching this conclusion, the Court reasoned 

 

 

2 The amendment to Guidelines § 2D1.1(c) is applicable 

retroactively within the discretion of the district court. See

U.S.S.G. § 1B1.10; 18 U.S.C. § 3582(c)(2); see also United States 

v. Telman, 28 F.3d 94, 96 (10th Cir. 1994). 
that, because the statute refers to the weight of a "mixture or 

substance containing a detectable amount" of LSD, so long as the 

blotter paper/LSD "mixture or substance" does contain a 

detectable amount of LSD, the "entire mixture or substance is to 

be weighed when calculating the sentence." Id. at 459; 111 S. 

Ct. at 1924 (emphasis added). In addition, the Court noted that 

Congress has treated other drugs, e.g., PCP and methamphetamine, 

differently by basing mandatory minimum sentences either upon the 

weight of the mixture or substance containing a detectable amount 

or upon a lower weight of the pure drug. The Court reasoned that 

Congress's failure to provide a similar net weight of pure drug 

alternative for LSD indicates its intent that courts use the 

gross weight of the mixture or substance. Id.

 The Court found further support for its "entire 

weight" approach in the fact that the present mandatory minimum 

penalties for LSD originated from the 1986 Anti-Drug Abuse Act in 

which "Congress adopted a `market-oriented' approach to punishing 

drug trafficking." Id. at 460-61; 111 S. Ct. at 1925. The Court 

noted that Congress's market approach relied upon the total 

quantity of the drug distributed -- cut or uncut -- rather than 

upon the purity of the drug. Id. at 461; 111 S. Ct. at 1925. 

The Court explained that this approach was motivated by 

Congress's recognition that retail traffickers are the ones who 

keep the street markets going and, therefore, should not be 

punished less severely than their higher-ups even though they 

deal in smaller quantities of the pure drug. Id. 
 Although the Guidelines paralleled the language in 

the mandatory minimum statute at the time Chapman was decided, 

id. at 457, 111 S. Ct. at 1923, and Amendment 488 changed that 

parallel language by adopting the 0.4 mg per dose approach, the 

amendment did not invalidate the holding of Chapman. To the 

contrary, the amended language expressly excluded the use of the 

0.4 mg approach in determining the applicability of statutory 

mandatory minimum sentences. Moreover, all the Circuits that 

have addressed this issue have so found. See United States v. 

Pardue, 36 F.3d 429, 431 (5th Cir. 1994); United States v. 

Mueller, 27 F.3d 494, 496-97 (10th Cir. 1994); United States v. 

Boot, 25 F.3d 52, 55 (1st Cir. 1994); United States v. Tucker, 20 

F.3d 242, 244 (7th Cir. 1994) (analogizing penalties for cocaine 

base to those for LSD).3 We conclude that Amendment 488 neither 

invalidated nor implicitly overruled the Supreme Court's holding 

in Chapman. 

 Furthermore, Hanlin's mandatory minimum sentence 

would not be affected by a lesser sentence that might be computed 

under the Sentencing Guidelines. As already stated, Amendment 

488 specifically provides that the 0.4 mg approach "does not 

override the definition of mixture or substance for the purposes 

of applying any mandatory minimum sentence (see Chapman; § 

 

 

3 In United States v. Stoneking, 34 F.3d 651, 652 (8th Cir. 

1994), the court held that the statutory mandatory minimum 

sentence is determined by weight of LSD, as provided by Amendment 

488's 0.4 mg per dose approach. However, the Eighth Circuit 

vacated the panel opinion and judgment in Stoneking and the case 

was set for oral argument before the court en banc on December 6, 

1994. 
5G1.1(b))." U.S.S.G. § 2D1.1, comment. (backg'd). In addition, 

Guideline § 5G1.1(b) specifies that a statutorily required 

minimum sentence shall be the guideline sentence where that 

mandatory sentence is greater than the maximum of the guideline 

range. Therefore, Hanlin's 10-year mandatory sentence, 

calculated on a drug amount which includes the gross weight of 

the mixture, takes precedence over any lesser Guidelines' 

sentencing range. 

 Indeed, even if the Sentencing Commission had 

intended the 0.4 mg per dose approach to be used in conjunction 

with the mandatory minimum statute, Chapman would still control. 

The Supreme Court in Chapman specifically stated that "[s]o long 

as it contains a detectable amount [of LSD], the entire mixture 

or substance is to be weighed when calculating the sentence." 

Chapman, 500 U.S. at 459; 111 S. Ct. at 1924 (emphasis added). 

The 0.4 mg approach adopted in Amendment 488 does not allow for 

the entire weight of the mixture to be used in calculating the 

defendant's sentence and, therefore, conflicts with Chapman if 

applied to the mandatory minimum statute. See United States v. 

Tannis, 942 F.2d 196, 198 (3d Cir. 1991) (guidelines cannot 

supersede statute). In sum, as the First Circuit noted in Boot, 

25 F.3d at 55, until Congress or the Supreme Court revisits the 

issue, two different formulas will be used for calculating LSD 

quantity--one for statutory mandatory minimums and another for 

Guidelines sentencing range purposes. The superior formula is 

the Guidelines' formula because it recognizes that weighing the 

entire carrier medium produces unwanted disparity among offenses 
involving the same quantity of LSD but different carrier weights, 

as well as among sentences for other more dangerous drugs; the 

formula of 0.4 mg per-dose correctly assigns some weight to the 

carrier medium, and recognizes that LSD is sold by dosage rather 

than weight. However, until Congress expresses a desire to 

coordinate the calculation of LSD quantity under the Guidelines 

and 21 U.S.C. § 841(b)(1), we are bound by the Supreme Court's 

Chapman formula which requires that the entire carrier medium be 

weighed for minimum mandatory sentencing purposes.4 

 III. 

 In conclusion, we hold that Chapman governs the 

definition of "mixture or substance" for purposes of conviction 

and sentencing under 21 U.S.C. § 841(b)(1) and requires that the 

entire weight of the carrier/LSD mixture be used in calculating 

the drug amount. Thus, even if Hanlin's Guidelines' sentencing 

range might be reduced by application of Amendment 488, the 10-

year sentence, imposed on Hanlin, would not be affected because 

Hanlin remains subject to the mandatory minimum sentence provided 

for by 21 U.S.C. § 841(b)(1) and Chapman. Accordingly, we affirm 

the district court's denial of Hanlin's motion for a reduction of 

sentence. 

 

 

4 We find Hanlin's other arguments, that application of the 

mandatory minimum sentence violated his right to due process and 

that the rule of lenity required the LSD involved in his 

conviction be weighed pursuant to amended § 2D1.1, to be without 

merit.