UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20500

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MATTHEW L. MORGAN,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

May 23, 2002

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For Matthew Morgan’s appeal from his guilty plea convictions

for conspiracy to possess, and possession, with intent to

distribute ten grams or more of a mixture or substance containing

a det ectable amount of lysergic acid diethylamide (LSD), in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(v), 846, and 18

U.S.C. § 2, primarily at issue is whether, for sentencing purposes,

the district court erred in considering the weight of the liquid

solution in which the LSD was contained.

Consistent with the holdings of three circuits, discussed

infra

, only the weight of the LSD in the solution should have been

considered for that purpose. Although, as a result, we V ACATE the

judgment (including 151 months impriso nment), we R EMAND for2

imposition of the ten-year minimum sentence mandated by 21 U.S.C.

§ 841 (b)(1)(A)(v).

I.

In August 2000, Drug Enforcement Administration (DEA) Agents

arranged, through an informant, to purchase 2000 dosage units of

LSD from James Ray Gay. Gay and the informant traveled together to

an apartment complex; Gay took into the complex $2,600 in marked

money provided by the informant; and Gay returned with three sheets

of blotter paper. According to subsequent analysis, the paper

containe d 1,246 dosage units of LSD, with a net weight of 7.9

grams.

Later that month, DEA Agents again arranged, through the

informant, to purchase an additional 2000 dosage units from Gay.

The informant gave Gay $2,500 in marked money to purchase the LSD.

DEA Agents observed: Gay and the informant drive together to the

apartment complex at which the earlier purchase had been made; Gay

exit that vehicle, enter Apartment 19 in that complex, and remain

for several m inutes; and Gay return to the vehicle holding

something. Gay gave the informant two sheets of blotter paper and

ten bottles containing liquid, which the informant placed in the

vehicle’s trunk. Gay was arrested at the scene. Subsequent

analysis determined: the paper contained 627 dosage units of LSD,

with a net weight of 4.1 grams; the liquid solution had a net

weight of 18.2 grams and contained a detectable amount of LSD.

Shortly after Gay’s arrest, DEA Agents entered Apartment 19,

detained Morgan and two others, and obtained a search warrant for3

the premises. The Agents found: 13 bottles, labeled “Sweet

Breath”, containing a liquid solution, which had a net weight of

23.6 grams, with a detectable amount of LSD; two sheets of blotter

paper, containing 128 dosage units of LSD, with a net weight of .83

grams; and $2,380 of the marked money, of which $2,000 was hidden

in Morgan’s shoe.

Morgan pl eaded guilty to conspiracy to possess, and

possession, with intent to distribute more than ten grams of LSD.

Prior to accepting the plea, the district court informed Morgan the

charges potentially subjected him to a ten-year mandatory minimum

sentence.

Citing U.S.S.G. § 2D1.1 cmt. n.(H), discussed infra

, the

Presentence Investigation Report (PSR) at tributed a .4 milligram

weight to each dosage unit found on the seized blotter paper, which

reflected a weight of 302 milligrams of LSD. The PSR counted the

entire weight of the liquid containing the LSD

— 41.8 grams.

Therefore, for sentencing purposes, the PSR used a total weight of

42.1 grams to assign a base offense lev el of 34; recommended a

three-level reduction for acceptance of responsibility, resulting

in a total offense level of 31; and placed Morgan’s criminal

history category at 4.

Morgan objected to the PSR, maintaining only the weight of the

pure LSD alone in the liquid, not the entire weight of the liquid,

should be considered and objecting to the Government’s failure to

determine that greatly lesser pure LSD weight. In an Addendum to4

the PSR, the Probation Officer recommended rejecting Morgan’s

objections.

At sentencing, the district court allowed Morgan to supplement

his objections with lab reports indicating only 113.5 milligrams of

LSD in the 41.8 grams of liquid solution. In that regard, Morgan

continued to object that only the weight of the pure LSD should be

considered. He did not object, however, to application of the tenyear minimum sentence mandated by 21 U.S.C. § 841(b). The district

court overruled Morgan’s objec t ions and considered the entire

weight of the solution (41.8 grams) for sentencing purposes. Based

upon the total weight of 42.1 grams, Morgan was sentenced, inter

alia , to 151 months imprisonment (the minimum under the guideline

range).

II.

The underlying facts (the relative weights of the pure LSD and

liquid solution) are not in dispute. At issue is only the court’s

using the weight of the solution. Its application of the

Sentencing Guidelines is reviewed de novo

. U nited St ates v.

Henderson , 254 F.3d 543 (5th Cir. 2001).

A.

Consistent with the holdings by three cir cuits, Morgan

contends that, when LSD is contained in a liquid solution, the

weight of the pure LSD alone (the LSD) should be used to determine

the offense level. United States v. Camacho , 261 F.3d 1071, 1074

(11 th Cir. 2001); United States v. Ingram, 6 7 F.3d 126, 128 (6 th

Cir. 1995); United States v. Turner

, 59 F.3d 4 81, 485 (4 t h Cir.5

1995); see United States v. Jordan , 842 F. Supp. 1031, 1033 (M.D.

Tenn. 1994). The Government counters that these circuits’

approaches are neither logically necessary nor consistent with the

relevant statutes.

A graduated system of penalties is provided for by 21 U.S.C.

§ 841, based upon the quantity of the “mixture or substance

containing a detectable amount of

... LSD”. 21 U.S.C. §

841(b)(1)(A)(v). Along this line, Note (H) to U.S.S.G. § 2D1.1(c)

(“DRUG QUANTITY TABLE”) was adopted subsequent to Chapman v. United

States

, 500 U.S. 453, 456 (1991) (weight of carrier medium included

in the weight of LSD)

. See U.S.S.G. app. C amend. 488 (1998).

Note (H), which became effective 1 November 1993, sta tes, in

relevant part:

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 e ach 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) cmt. n.(H) (emphasis added).

Similarly, Application Note 16 to U.S.S.G. § 2D1.1 was adopted

subsequent to Chapman

, in the amendment to the Guidelines that

adopted Note (H). Application Note 16 provides, in pertinent part:

“In the case of liquid LSD (LSD that has not been placed onto a

carrier medium), using the weight of the LSD alone to calculate the

offense level may not adequately reflect the ser iousness of the

offense. In such a case, an upward departure may be warranted”.

§ 2D1.1 cmt. n.16 (emphasis added). (Morgan was sentenced under

the year 2000 edition of the Sentencing Guidelines Manual. In the6

2001 edition, Application Note 16 is now Application Note 15. S ee

U.S.S.G. § 2D1.1 (2001).)

Note (H) excludes only the weight of a carrier medium when LSD

is on it; the Note does not address LSD’s being contained in a

liquid solution. And, Note (A) instructs: “ U nless other wise

specified

, the weight

... refers to the entire weight of any

mixture or substance”. § 2D1.1(c) cmt. n.(A) (emphasis added).

Therefore, according to the Gov ernment, because an alternative

weight is specified only when LSD is on a carrier medium, the

aggregate weight of the LSD and the liquid solution should be used

for sentencing in this case, because the solution is “a mixture or

substance containing a detectable amount” of LSD. 21 U.S.C. §

841(b)(1)(A)(v).

Application Note 1 of U.S.S.G. § 2D1.1 provides:

Mixture or substance does not include

materials that must be separated from the

controlled substance before the control led

sub stance can be used. Examples of such

materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in

a cocaine/beeswax statue, and waste water from

an illicit laboratory used to manufacture a

controlled substance. If such material cannot

readily be separated from the mixture or

substance that appropriately is counted in the

Drug Quantity Table, the co urt may use any

reasonable method to approximate the weight of

the mixture or substance to be counted.

U.S.S.G. § 2D1.1 cmt. n.1.

As a result, the Government contends: LSD is saleable when

contained in a liquid solution; accordi ngly, the solution should

not be excluded from th e “mixture or substance”, because the

solution does not have to “be separated from the controlled7

substance before the controlled substance can be used”. § 2D1.1

cmt. n.1. Moreover, to make dosage units, the liquid solution is

sprayed onto blotter paper, see Turner

, 59 F.3d at 485; therefore,

the Government maintains the solution containing the LSD is “used”

to manufacture doses of LSD.

The Government’s contentions have considerable force.

Nevertheless, they do not persuade us that the approach of our

three sister circuits is incorrect.

First, b ecause Note 16 specifies upward departures may be

warranted when senten cing based upon the weight of “liquid LSD”

(LSD contained in a liquid soluti on), liquid LSD is a mixture or

substance that the Guidelines have apparently excluded

— “otherwise

spe cified” — from use as the “entire weight of any mixture or

substance” for sentencing purposes. See U.S.S.G. § 2D1.1(c) cmt.

n.(A).

Second, for LSD, Application Note 1’s reference to “use” of a

controlled substance is to consumption of that substance, not using

it to make a marketable product. S ee, e.g., U.S.S.G. § 2D1.1 cmt.

n.1 (excluding waste water used in the manufacture of a controlled

substance); Camacho, 261 F.3d at 1074; Turner

, 59 F.3d at 485 (the

liquid solution evaporates prior to consumption), 487 n.6 (drug

users do not ingest liquid LSD because of the inability to control

dosage and because the solution is usually a toxic substance) & 488

n.8.

Along thi s line, and as quoted above, Application Note 1

p rovides: “If such material cannot readily be separated fromthe8

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”.

U.S .S.G. § 2D1.1 cmt. n.1. As demonstrated by the lab reports

Morgan submitted at sentencing, by the chemical nature of the

solution to evaporate when the LSD-liquid solution is applied to a

carrier medium, a nd by the other opinions on this issue, the LSD

can be readily separated from this type of solution to determine

the quantity of LSD (the “pure LSD alone”).

Therefore, we agree with the Fourth Circuit’s reasoning in

Turner

, 59 F.3d at 486-88: pursuant to Note (H), the .4 milligram

conversion factor used for LSD on a carrier medium is not used with

liquid LSD; Application Note 16’s express authorization for upward

departures would be meaningless if the Guidelines intended the

entire weight of the combined LSD and liquid solution to be

counted; and using the weight of pure LSD alone will eliminate

sentencing discrepancies when LSD contained in a liquid solution is

involved.

Accordingly, for this issue of first impression for our

circuit, we hold: when the controlled substance is LSD contained

in a liqu id solution, the weight of the p ure LSD alone should be

used in determining the base offense level un der the Guidelines

.

See Camacho

, 261 F.3d at 1074-75; United States v. Sia

, No. 9 6

-

1808, 1996 WL 728191 (1st Cir.) (unpublished); Ingram, 67 F.3d at

128; Turner , 59 F.3d at 485; Jordan , 842 F. Supp. at 1033.9 B.

This holding, however, does not end o ur review of Morgan’s

sentence. Even though the amount of pure LSD involved is less than

ten grams, his guilty plea included his possessing, with intent to

distribute, ten grams or more of LSD

, triggering the ten- year

minimum sentence mandated by 21 U.S.C. § 841(b)(1)(A)(v). Pursuant

to U.S.S.G. § 5G1.1(b), the statutory minimum sentence is employed

when it is greater than the maximum sentence based upon the

Guidelines. (Using the weight of the pure LSD alone, the amount

f or sentencing Morgan under the Guidelines would have been 41 5.5

milligrams, resulting in a senten ce much less than the mandatory

minimum.)

Along this line, Morgan was informed on at least two occasions

by the district court that he faced a mandatory minimum ten-year

sentence. The court did not impose the mandatory minimum because,

as calculated by the court, Morga n’s sentence based upon the

Guidelines exceeded the mandatory minimum by 31 months.

Morgan objected to the applicability of the mandatory minimum

f or the first time on appeal. Accordingly, any challenge to the

ten-year mandatory minimum is reviewed only for plain error. E .g.,

United States v. Calverley

, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc), cert. denied , 513 U.S. 1196 (1995).

As discussed below, for purposes of imposing the mandatory

minimum, there was no error in including the liquid solution for

calculating the weight of the LSD. Moreover, even had there been

error, it was neither “clear” nor “obvious” for plain error10

purposes. S ee id. at 162-63. Finally, even if there was clear or

obvious error, Morgan’s substantial righ ts are not affected; he

chose to plead guilty to the charge warranting a mandatory minimum

ten-year sentence.

Amendments to the Guidelines do not override Chapman for the

purpose of statutory mandatory minimums. S ee U.S.S.G. § 2D1.1 cmt.

background; United States v. Whitebi rd , 55 F.3d 1007, 1010 (5th

Cir. 1995) (Guidelines’ deemed weight of .4 milligrams per dose

does not overrule Chapman ’s use of the weight of the carrier medium

when determining the mandatory minimum sentence); United States v.

Pardue

, 36 F.3d 429, 431 (5th Cir . 1994), c ert. denied

, 514 U.S.

1113 (1995). As demonstrated by the sale to Gay and the

confidential informant of the bottles of liquid solution containing

the LSD, the “market-oriented approach” followed in C hapman

, 500

U.S. at 461 (internal quotation marks omitted), 4 65-66, warrants

including the weight of the liquid solution when determining the

mandatory minimum sentence. It is true that LSD is not consumed

when contained in the liquid solution at issue here, but

distribution of LSD by traffickers occurs in this manner.

Accordingly, the mandatory minimum for LSD implemented by 21

U.S.C. § 841(b)(1)(A)(5) is rational. S ee id; cf. United States v.

Palacios-Molina , 7 F.3d 49, 53 (5th Cir. 1993) (cocaine contained

in wine)

. Again, Morgan admitted, and pled guilty, to possessing,

with intent to dist ribute, more than ten grams of a mixture or

substance containing a detectable amount of LSD.11 III.

For the foregoing reasons, the judgment is VACATED , and this

case is REMANDED for resentencing and entry of judgment to include

120 months imprisonment, in accordance with the mandatory minimum

sentence required by 21 U.S.C. § 841(b)(1)(A)(v).

VACATED and REMANDED