Filed: Jul. 24, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-20721 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OWEN FRANKLIN JENSEN, IV, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-545-1 - July 23, 2002 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. PER CURIAM:* Owen Franklin Jensen, IV, appeals his sentence following his guilty-plea conviction for one count of possession with in
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-20721 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OWEN FRANKLIN JENSEN, IV, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-545-1 - July 23, 2002 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. PER CURIAM:* Owen Franklin Jensen, IV, appeals his sentence following his guilty-plea conviction for one count of possession with int..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20721
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OWEN FRANKLIN JENSEN, IV,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-545-1
--------------------
July 23, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Owen Franklin Jensen, IV, appeals his sentence following his
guilty-plea conviction for one count of possession with intent to
distribute 10 grams or more of a mixture containing a detectable
amount of LSD and one count of conspiracy to possess with intent
to distribute 10 grams or more of a mixture containing a
detectable amount of LSD, violations of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(v), 846. Jensen argues that the district court erred
in using the total weight of the liquid in which the LSD was
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-20721
-2-
suspended to calculate his base offense level. He contends that
his base offense level should have been calculated using the
weight of the pure LSD only. This court reviews “a district
court’s interpretation of the sentencing guidelines de novo and
its application of the guidelines to the facts for clear error.”
See United States v. Cho,
136 F.3d 982, 983 (5th Cir. 1998).
After Jensen was sentenced, we decided United States v.
Morgan, F.3d (5th Cir. May 23, 2002, No. 01-20500),
which presented the same issue that Jensen raises in the instant
appeal. In Morgan, we held that “when the controlled substance
is LSD contained in a liquid solution, the weight of the pure LSD
alone should be used in determining the base offense level under
the Guidelines.”
Id. at 5 (emphasis in original); see also
United States v. Keresztury, F.3d (5th Cir. June 5, 2002,
No. 01-50909).
In the instant case, the district court erred in using the
total weight of the LSD and the liquid to determine Jensen’s base
offense level. Accordingly, Jensen’s sentence is VACATED, and
this case is REMANDED for resentencing consistent with Morgan.