USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1808
UNITED STATES,
Appellee,
v.
CHRISTOPHER N. SIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Cyr, Stahl and Lynch,
Circuit Judges.
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Donald Thomas Bergerson on brief for appellant.
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Jay P. McCloskey, United States Attorney, and F. Mark Terison,
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Assistant United States Attorney, on brief for appellee.
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December 18, 1996
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Per Curiam. Defendant Christopher Sia appeals from the
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denial of his motion for reduction of sentence under 18
U.S.C. 3582(c)(2). For the reasons that follow, we vacate
and remand for further proceedings.
I.
The background need only be briefly recounted.
Defendant pled guilty to four drug charges in 1991 and was
sentenced to 293 months in prison. The offenses involved LSD
appearing both on blotter paper and in liquid form.
Thereafter, the Sentencing Commission retroactively revised
the methodology for calculating the weight of LSD. See
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U.S.S.G. App. C (Amendment 488) (amending 2D1.1) (effective
November 1, 1993). At the recommendation of the Probation
Office, the district court undertook a sua sponte
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reconsideration of defendant's sentence in light of the
amendment (as it did in over a dozen other LSD cases in the
district).
Applying the new formula to the blotter LSD, but deeming
it inapplicable to the liquid LSD, the court reduced the
amount of "heroin equivalent" attributable to defendant from
99 kilograms to 50 kilograms. Even with such reduction,
however, defendant remained subject to the same offense level
(of 38) and the same sentencing range as before.
Accordingly, on November 12, 1993, without filings from
defendant, the court issued an amended judgment finding that
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"the term of incarceration imposed herein is unaffected by
the change in the law." Defendant through counsel filed an
appeal but then had second thoughts; counsel moved to
withdraw and the appeal was dismissed in May 1994.
In May 1996, defendant filed the instant pro se motion
for reduction, contending in a lengthy memo that Amendment
488 did in fact apply to the liquid LSD as well as the
blotter LSD. The government filed an opposition, and the
district court denied the motion in a margin order stating:
"After full review of the written submissions hereon, the
within motion is hereby denied." Defendant, with new
counsel, filed a timely appeal.
II.
We do not understand the government here to be seriously
contending that Amendment 488 is inapplicable to liquid LSD.
The sole reference to liquid LSD in the amendment implies
otherwise.1 All courts to address the issue, although
1
differing over the precise methodology to be employed, agree
that the full weight of the liquid LSD is no longer to be
included in calculating drug quantities. See, e.g., United
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States v. Ingram, 67 F.3d 126 (6th Cir. 1995); United States
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1 See U.S.S.G. 2D1.1 n.16 ("In the case of liquid LSD
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(LSD that has not been placed onto a carrier medium), using
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the weight of the LSD alone to calculate the offense level
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may not adequately reflect the seriousness of the offense.
In such a case, an upward departure may be warranted.")
(emphasis added).
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v. Turner, 59 F.3d 481 (4th Cir. 1995); United States v.
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Jordan, 842 F. Supp. 1031 (M.D. Tenn. 1994). And in a
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separate appeal from Maine involving the same government
appellee, this court remanded for resentencing based on "the
government's concession that the weight of the 'liquid LSD'
should have been recalculated" in accordance with Amendment
488; we there agreed that "the commentary arguably
contemplates some adjustment where liquid LSD is involved."
United States v. Lowden, 36 F.3d 1090, 1994 WL 497586, at *1
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(1st Cir. 1994) (table) (per curiam).2
2
Instead, the government interposes various procedural
objections that, in its view, foreclose defendant from
seeking such relief at this juncture. It first contends
that, just as in the habeas context, a defendant is precluded
from filing a "successive" or "repetitive" 3582(c)(2)
motion except under narrow circumstances. Yet even on the
assumption that defendant's earlier appeal from the court's
sua sponte order constituted such a motion, the analogy is
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strained. A habeas petition is governed by specific rules
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2 As it did below, the government only intimates on
2
appeal that the amendment might be inapplicable--suggesting
that the Probation Office did not earlier apply the revised
formula to liquid LSD because the drug was not "on" a carrier
medium "as required by the amendment" but rather "in" it.
Yet the amended commentary uses the words "on" and "in"
interchangeably. And the amendment's definition of liquid
LSD as "LSD that has not been placed onto a carrier medium,"
see note 1 supra, indicates that the liquid solvent does not
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constitute a carrier medium. See, e.g., Ingram, 67 F.3d at
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128; Turner, 59 F.3d at 485.
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restricting multiple filings; a 3582(c)(2) motion is not.
See, e.g., United States v. Hollenbeck, 932 F. Supp. 53, 56
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(N.D.N.Y. 1996). And the concerns giving rise to such
constraints in the habeas context are implicated here to a
far lesser extent. Instead, a motion under 3582(c)(2)
would appear more akin to one under the former version of
Fed. R. Crim. P. 35. And it was agreed that successive
motions were permissible under that rule. See, e.g., Heflin
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v. United States, 358 U.S. 415, 418 n.7 (1959); Ekberg v.
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United States, 167 F.2d 380, 384 (1st Cir. 1948).3
3
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The government also insists that defendant, having pled
guilty to an indictment charging distribution of at least ten
grams of LSD and having stipulated to a heroin equivalent of
99 kilograms for sentencing purposes, cannot now renege on
such agreements. Yet the indictment and the stipulation were
both based upon a "mixture or substance" containing a
detectable amount of LSD--a methodology later discarded by
Amendment 488. Our decision in United States v. Lindia, 82
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F.3d 1154, 1159 n.3 (1st Cir. 1996), on which the government
relies, does not dictate that such stipulated drug quantities
were immune from later modification resulting from an
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3 Neither below nor on appeal has the government
3
contended that this court's dismissal of the earlier appeal
constitutes the law of the case binding on the district
court. The matter is therefore waived. See, e.g., Castillo
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v. United States, 34 F.3d 443, 445 (7th Cir. 1994). We would
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be inclined not to rely on the doctrine in any event. See
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note 4 infra.
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intervening amendment. Indeed, under the government's view,
the district court would have been precluded from reducing
the quantity of drugs attributable to defendant in the 1993
amended judgment.
In the alternative, the government contends that the
district court properly denied the motion as an exercise of
discretion. To be sure, given the discretion entrusted to
the lower court in this context, "most resentencing battles
will be won or lost in the district court, not in an
appellate venue." United States v. LaBonte, 70 F.3d 1396,
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1411 (1st Cir. 1995), cert. granted, 116 S. Ct. 2545 (1996).
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Yet the court here seemingly denied the motion based on one
or more of the arguments advanced by the government below.
As a result, it is possible that the district court may have
misapprehended that Amendment 488 was inapplicable to liquid
LSD (a misapprehension shared by this court, we might add, at
the time of defendant's earlier appeal). It is likewise
possible that the lower court denied relief based on the
mistaken notion that defendant's request constituted an
impermissible "successive" motion.4 Given these possible
4
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4 It is also conceivable (despite the lack of any such
4
contention from the government) that the lower court felt
itself bound by this court's earlier decision on law of the
case grounds--a rationale with which it would be difficult to
quarrel. Even if so, that doctrine only "directs a court's
discretion[;] it does not limit the tribunal's power."
Arizona v. California, 460 U.S. 605, 618 (1983). And under
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the circumstances presented--particularly the clarification
of the law in the wake of defendant's earlier appeal--we
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misapprehensions, urged by the government, the district court
might choose now to do something different. We think a
remand is appropriate and vacate the sentence.
As a final argument, the government suggests that the
lower court calculated the revised sentencing range under the
amendment, determined that an upward departure to 293 months
would be warranted, and then denied the motion simply because
defendant was already at that level. Yet the government
mentioned the possibility of an upward departure only in
passing below, and there is no indication that the district
court engaged in any such undertaking. Given the magnitude
of any possible such departure here (if defendant's
calculations bear out, he will be subject to an offense level
of 32, with a range of 121 to 151 months), the government's
conjecture on the ambiguous record before us does not
suffice. At the same time, we note that Amendment 488
encourages an upward departure in cases of liquid LSD, and
the court remains free to take such action on remand.
In deciding whether a reduction of sentence is
warranted, and if so to what extent, the district court
should first calculate the revised sentencing range under the
amendment. This inquiry will require ascertaining either the
weight of "pure" LSD dissolved in the liquid solvent or the
number of dosage units contained therein. Defendant has
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thinkit would be inappropriate to invoke that doctrine here.
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proffered a figure for the weight of pure LSD, one apparently
drawn from government laboratory reports; as those reports
are not in the record, that figure cannot be confirmed.
Alternatively, he notes that the original presentence report
attributed a total of 7500 dosage units to 419 of the 485
grams of liquid LSD for which he was responsible. By way of
extrapolation, and on the assumption that the remaining 66
grams were of comparable strength, he derives a total number
of dosage units (8,680) for the full 485 grams. If
defendant's factual assumptions prove valid, the court might
be persuaded to adopt such an approach. Alternatively,
additional evidence may be received. We leave these matters
for resolution by the district court in the first instance.5
5
Vacated and remanded for further proceedings. See Loc.
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R. 27.1.
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5 We express no view as to whether the number of dosage
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units should be multiplied by 0.05 mg (the presumptive weight
of pure LSD per dose), see Turner, 59 F.3d at 485-91, or by
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0.4 mg (the amendment's conversion factor), see Ingram, 67
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F.3d at 128. Indeed, it may prove unnecessary to choose
between these competing approaches in the instant case.
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