USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1695
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN COTTON a/k/a "EARL",
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Harry L. Miles for appellant.
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Kevin O'Regan, Assistant United States Attorney, with whom A.
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John Pappalardo, United States Attorney, was on brief for appellee.
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January 28, 1994
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CYR, Circuit Judge. Appellant was sentenced pursuant
CYR, Circuit Judge.
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to U.S.S.G. 2D1.1(c) and its accompanying Footnote*, which
provide that the entire weight of a methamphetamine mixture and
the net weight of the pure methamphetamine in the mixture are to
be determined, and the court is to use whichever weight yields
the greater sentence. Appellant claims that Footnote* should be
disregarded in favor of the "market-oriented" approach supposedly
approved in Chapman v. United States, ___ U.S. ___, 111 S. Ct.
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1919 (1991), for use in all drug-related sentencings, based on
the mixture weight, i.e., the total product to be marketed. The
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"either/or" approach under U.S.S.G. 2D1.1(c) and its Footnote*
is directly patterned on 21 U.S.C.
841(b)(1)(A)(viii),(B)(viii). Appellant concedes that this
claim is effectively precluded by our decision in United States
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v. Stoner, 927 F.2d 45, 47 (1st Cir.), cert. denied, ___ U.S.
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___, 112 S. Ct. 129 (1991), which upheld the "either/or" provi-
sion in 21 U.S.C. 841(b)(1)(B)(viii), but urges that we recon-
sider Stoner in light of Chapman.
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Appellant overlooks the fact that Congress has not
adopted a unitary approach to drug-crime punishment but an array
of distinctive sentencing schemes for various categories of
drugs. See 21 U.S.C. 841(b). Indeed, the Court in Chapman
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specifically adverted to the "either/or" sentencing treatment
prescribed in methamphetamine (and PCP) cases, and concluded that
"Congress knew how to indicate that the weight of the pure drug
was to be used to determine the sentence, and did not make that
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distinction with respect to LSD." Chapman, 111 S. Ct. at 1924
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(emphasis added). The "market-oriented" approach appellant
infers from Chapman would blunt the power of Congress to pre-
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scribe criminal sanctions and frustrate its mandate in 21 U.S.C.
841(b)(1)(A)(iv),(viii) & (B)(iv),(viii), as well as U.S.S.G.
2D1.1(c) and the plain language of Footnote*. See id. at 1926-
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28 (upholding legislative power to establish distinct sentencing
schemes for different drugs). We therefore reaffirm Stoner and
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affirm the sentence imposed by the district court.1
Affirmed.
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1Appellant's remaining claim is that the district court
erred in not departing downward based on the "unusual" circum-
stance that he was sentenced in accordance with U.S.S.G. 2D1-
.1(c) and Footnote*. Assuming we have jurisdiction, but see,
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e.g., United States v. Tucker, 892 F.2d 8, 10-11 (1st Cir. 1989),
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mere imposition of sentence in accordance with the applicable
guidelines does not constitute an "unusual" circumstance warrant-
ing departure, see United States v. Rivera, 994 F.2d 942, 949-52
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(1st Cir. 1993).
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