In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1292 

United States of America,

Plaintiff-Appellee,

v.

Marla Lynn Cones,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana,

South Bend Division.

No. 3:97-CR-2(02)RM--Robert L.

Miller, Jr., Judge.

Argued October 1, 1999--Decided October 28, 1999

 Before Cudahy, Easterbrook, and Kanne,

Circuit Judges.

 Easterbrook, Circuit Judge. Customs

officials intercepted a package

originating in Vietnam and containing 248

grams of heroin bound for "Porsche Jones"

in Elkhart, Indiana. The drug had been

placed inside a book. Agents made a

controlled delivery. No one was home when

the agents first attempted to deliver the

package, and they left a standard Postal

Service notice. On the second attempt,

again no one was there, but a note

instructed the Postal Service to "Leave

Package for Porsche Jones between door!"

The agents did just that, then watched.

Three hours later, Marla Cones (whose

nickname is "Porche") arrived, learned

that the note directing the Postal

Service to redeliver the parcel had been

removed, and quickly left. Her car,

driven by Azibuike Iroh, performed a

series of maneuvers that seemed

calculated to detect or evade

surveillance. Iroh drove Cones to see the

friend to whose home the package had been

delivered. A half hour after the initial

visit to the mailbox, the car returned

and Cones retrieved the parcel. When the
car drove away a second time, the driver

again attempted to elude pursuit--but

failed. Cones and Iroh were arrested and

charged with heroin smuggling. A jury

found Iroh guilty, and we affirmed last

year. United States v. Doe, 149 F.3d 634

(7th Cir. 1998). Cones was convicted by

the judge following a bench trial.

 Iroh and Cones each asserted that the

other was solely responsible for the

drugs. Neither persuaded the trier of

fact; judge and jury concluded that Cones

and Iroh were partners in crime. The

package was mailed to a friend’s

apartment, where few knew that Cones

would receive mail, and it bore a

variation of her name that could not have

been widely known. Still, Cones contends,

the evidence was insufficient. She

maintains that she arranged for the

package to go to a friend’s place only

because some mail had been stolen

recently from her own mailbox. She blames

Iroh for duping her into acting as a

conduit for drugs--which Cones insists

that Iroh ordered. What evidence was

there, she inquires, that she knew the

package contained drugs?

 There was plenty of evidence. Drug

dealers don’t mail narcotics to strangers

without prior arrangement. Cones was no

stranger to the drug trade; she was

carrying a small amount of crack cocaine

when arrested. She obtained the package

in a manner that suggests knowledge that

the contents were illicit. Why visit a

friend’s house twice, with evasive

driving before and after retrieving the

parcel, if she thought that the package

contained only a book? Why did she think

that Iroh would order a book from Vietnam

to be delivered to an alias at a third

party’s house? Normal people would be

more than a little suspicious. (Cones

knew that the package was not addressed

to her right name and told her friend to

write "Porsche Jones" on the postal

slip.) What is more, this is not the

first time a "book" had arrived from

Vietnam. Near the time of the first, Iroh

gave Cones some $5,000. A trier of fact

sensibly could infer that Cones knew that

the first package contained drugs and

that the second was likely to do so too.

 Cones offers three objections to her

sentence. The first two are frivolous.

The district court’s conclusion that
Cones committed perjury at trial, and the

consequent enhancement for obstruction of

justice, is well supported by the

evidence--so well supported that her

lawyer did not object, dooming the

appellate contest by forfeiture as well

as by the district court’s findings.

Likewise with the district court’s

decision not to reduce her offense level

for playing a minor role. Cones was held

responsible only for the drugs in the

second package from Vietnam, and she was

not a minor participant in that

transaction. United States v. Mojica, 185

F.3d 780, 790-91 & n.10 (7th Cir. 1999);

United States v. Brown, 136 F.3d 1176,

1185-86 (7th Cir. 1998); United States v.

Burnett, 66 F.3d 137, 140 (7th Cir.

1995). But her third objection is more

substantial.

 Guideline 2D1.1(c) provides a base

offense level of 26 for a person who is

responsible for between 100 and 400 grams

of "any mixture or substance containing a

detectable amount" of heroin. Two extra

levels for obstruction of justice

produced a total offense level of 28, and

a sentencing range of 78 to 97 months for

a person with a criminal history category

of I. The district court decided to

depart upward six levels on the ground

that the substance in the book, which was

71% heroin, was of "unusually high

purity." See sec.2D1.1 Application Note

9:

 Trafficking in controlled

 substances, compounds, or mixtures

 of unusually high purity may warrant

 an upward departure, except in the

 case of pcp or methamphetamine for

 which the guideline itself provides

 for the consideration of purity (see

 the footnote to the Drug Quantity

 Table). The purity of the controlled

 substance, particularly in the case

 of heroin, may be relevant in the

 sentencing process because it is

 probative of the defendant’s role or

 position in the chain of

 distribution. Since controlled

 substances are often diluted and

 combined with other substances as

 they pass down the chain of

 distribution, the fact that a

 defendant is in possession of

 unusually pure narcotics may

 indicate a prominent role in the

 criminal enterprise and proximity to
 the source of the drugs. As large

 quantities are normally associated

 with high purities, this factor is

 particularly relevant where smaller

 quantities are involved.

Level 34 has a sentencing range of 151 to

188 months’ imprisonment, and the judge

chose the bottom of this range--which is

54 months higher than the top of the

range for level 28. Cones wants us to

hold that the departure is unauthorized.

 The district judge’s rationale for the

extra six levels is that 250 grams of 70%

pure heroin would produce 2.5 to 5.8

kilograms of heroin at traditional

street-level purities, which run from 3%

to 7%. A person responsible for between 1

and 3 kilograms of heroin has a base

offense level of 32; the 3-10 kilogram

range draws a base offense level of 34.

The district court’s six-level departure

put Cones in the equivalent of level 32,

on the ground that she received the

equivalent of 2.5 kilos of street-purity

heroin. The question we must consider is

whether a conversion to street-level

purity is an authorized reason for

departure.

 A judge may depart from the Guidelines

when "there exists an aggravating or

mitigating circumstance of a kind, or to

a degree, not adequately taken into

consideration by the Sentencing

Commission". 18 U.S.C. sec.3553(b). See

also Koon v. United States, 518 U.S. 81

(1996). Drug purity cannot reasonably be

described as a circumstance that the

Commission has overlooked or inadequately

considered. Both the relevant statutes

and the Guidelines use the formula

"mixture or substance containing a

detectable amount" of a given drug. E.g.,

21 U.S.C. sec.841(b)(1)(A)(i). The

possibility of converting to a uniform

purity--whether 100% purity or "streetlevel" purity--was considered and

deliberately rejected. See United States

v. Marshall, 908 F.2d 1312 (7th Cir.

1990) (en banc), affirmed under the name

Chapman v. United States, 500 U.S. 453

(1991); United States v. Neal, 46 F.3d

1405 (7th Cir. 1995) (en banc), affirmed,

516 U.S. 284 (1996). When defendants who

sold a highly dilute drug objected that

the "detectable amount" approach greatly

magnifies their punishment compared with

people who sell a more concentrated drug,
both this court and the Supreme Court

responded in the cases just cited that

this outcome is the result of deliberate

choices by Congress and the Sentencing

Commission. Statutes and Guidelines allow

conversion to a uniform purity for pcp and

methamphetamine, and the Guidelines now

allow a conversion for lsd, which

reinforces the conclusion that for other

drugs Congress and the Commission have

rejected a common-purity approach. For

the same reasons that Chapman and Neal

preclude reducing the effective quantity

at defendants’ behest on the ground that

the drugs had been diluted to street

level, we now hold that judges should not

increase the effective quantity at

prosecutors’ behest on the ground that

street-level purity is the superior

measure. Chapman and Neal do not depend

on whose ox is being gored. For drugs

other than lsd, pcp, and methamphetamine,

the sentence must be calculated without

an adjustment to a uniform purity level.

 Application Note 9 does not invite

district judges to disregard the rule

that the entire mixture or substance must

be weighed without regard to purity. The

Note makes a different point: that higher

purity often is associated with a higher

position in the distribution network,

which may justify a higher sentence.

Higher-ups do more damage to society, and

the drugs found in their possession when

arrested may be only a small fraction of

the drugs that have passed through their

hands. Moreover, people higher in the

chain often are harder to detect and

prosecute. Greater social harm, and a

lower probability of detection, both

justify higher sentences in order to

maintain deterrence. Guideline 3B1.1

provides directly for an enhancement when

evidence establishes that the defendant

was an organizer, leader, manager, or

supervisor. If the criminal activity

involved five or more persons, or was

otherwise extensive, the offense level

goes up by 3 or 4; otherwise the increase

is 2 levels. Application Note 9 permits

an increase when it is not possible to

establish a supervisory role in the

conventional way, and the position in the

organization must be inferred from the

purity of the drug. Like other courts of

appeals, we think that this is the only

function of Application Note 9: a higher

sentence is appropriate only when purity

"is probative of the defendant’s role or
position in the chain of distribution."

United States v. Iguaran-Palmar, 926 F.2d

7, 10 (1st Cir. 1991) (dictum); United

States v. Mendoza, 121 F.3d 510, 515 (9th

Cir. 1997). The note does not authorize

courts to substitute a uniform-purity

approach for the contrary method

deliberately adopted by Congress and the

Sentencing Commission. What is more, when

higher purity implies a higher role in a

criminal organization, departure should

be limited to the number of levels that

could be awarded under sec.3B1.1;

otherwise a less formal method of proof

would undermine the decision to cap at 4

the number of offense levels that may be

assigned to bigwigs. An original source

of drugs might receive a greater

adjustment, we suggested in Marshall, 908

F.2d at 1324, but few defendants in

heroin or cocaine prosecutions fit that

description.

 Perhaps there are rare cases in which an

increase under sec.3B1.1 could be coupled

with a departure under Application Note

9, for a total of more than 4 levels,

though this smacks of double counting,

but we need not decide today whether

cases such as United States v. Rodriguez,

63 F.3d 1159, 1168-69 (1st Cir. 1995),

which allow this duplication, are

persuasive. Our point is that departure

should reflect the considerations

identified in Application Note 9 rather

than judicial disagreement with the

Guidelines’ failure to calculate

sentences based on a purity-adjusted

measure of drug quantity. This conclusion

is compatible with our decision to affirm

a six-level departure for Iroh. His only

argument was that departure for purity is

never proper, a line of argument rejected

as at odds with Application Note 9. See

Doe, 149 F.3d at 640. Cones has made a

different and better argument than her

co-defendant.

 Did Cones occupy a prominent or

especially dangerous role in the chain of

distribution? We need not remand to find

out, because the district court has

addressed this question already. After

quoting the passage in Application Note 9

that mentions "a prominent role in the

criminal enterprise and proximity to the

source of the drugs", the judge

continued: "There isn’t any evidence to

tell me that that describes you. There

isn’t any evidence to tell me that that
describes Mr. Iroh. . . . I simply do not

know." At oral argument, the prosecutor

also disclaimed any contention that Cones

was hard to apprehend; to the contrary,

he implied that every member of a

distribution chain deserves a higher

sentence (because breaking a single link

breaks the chain) and that Cones deserves

extra harsh treatment because recipients

of drugs mailed to this country are espe

cially easy to catch. (The proposition

that sentences should rise the easier the

defendant is to apprehend gets things

backwards.) The district judge made it

clear that his only reason for adjusting

Cones’s sentence was a belief that drug

quantities as a rule should be converted

to street-level purity. As Koon said,

however, departures must be limited to

unusual cases, ones not handled by the

Guidelines’ general rules. There is

nothing at all unusual about Cones’s

case, and the district judge’s reason

would apply to a large portion of all

federal drug prosecutions.

 Cones’s conviction is affirmed, but her

sentence is vacated, and the case is

remanded with instructions to resentence

her within the range for level 28.