noting that a district court might adopt an initial, greater measurement of drug quantity where the district court received expert testimony that the quantity differential may have been attributable to 'static cling’
How later courts described this case
- noting that a district court might adopt an initial, greater measurement of drug quantity where the district court received expert testimony that the quantity differential may have been attributable to 'static cling’
- remanding for re-sentencing upon concluding that “the sentencing court’s decision to choose an arbitrary amount that differs from the weights submitted by both DEA agents amounts to clear error”
- remanding for determination whether offense involved 5,000 grams of cocaine and noting that, if so, defendant’s Eighth Amendment challenge to life sentence for third drug conviction would fail
- “[T]his Court is bound by the precedent set forth in United States v. Hill, 30 F.3d 48, 50-51 (6th Cir.1994) .... [which] held ... that a mandatory term of life imprisonment without release upon a third felony drug conviction did not violate the Eighth Amendment’s protection against cruel and unusual punishment.”
Written by the judges who cited it.
The opinion
BATCHELDER, Circuit Judge,
concurring in part and dissenting in part.
I agree with the majority’s opinion in all respects except for its decision to remand the case for resentencing to determine the amount of the drugs attributable to Flowal. I part company with the majority on this point because even though the district court improperly used intent to determine attributable quantity, the evidence, well developed in the record, clearly shows by much more than a preponderance that the weight attributable to Flowal could not be less than 5.005 kilograms; thus the district court’s error was harmless and a remand for resentencing is a waste of judicial resources.
“In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.” Helvering v. Gowran, 302 U.S. 238, 245 , 58 S.Ct. 154 , 82 L.Ed. 224 (1937); see also Dandridge v. Williams, 397 U.S. 471 , 475-76 n. 6, 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970); United States v. Holt State Bank, 270 U.S. 49, 55-57 , 46 S.Ct. 197 , 70 L.Ed. 465 (1926); United States v. American Ry. Express Co., 265 U.S. 425, 435-36 , 44 S.Ct. 560 , 68 L.Ed. 1087 (1924). This rule is applicable as well in criminal appeals. See United States v. Spach, 518 F.2d 866, 872 (7th Cir.1975); United States v. Finn, 502 F.2d 938, 940 (7th Cir.1974). The evidence in this case is that Michiels initially weighed the substance to be 5,008 grams, and then used 8 grams to test the substance, giving her a “reserve weight” of 5,000 grams remaining at the end of her testing. Malo-ney clearly explained that the 8 grams used in Michiels’s testing were destroyed in the process and not placed back into the evidence. He also explained that the 3 gram discrepancy between the amount 4,997 grams he found and Michiels reserve weight was probably the result of “static cling,” and also stated that discrepancies in the weight of cocaine can be a product of changes in air humidity. These explanations are certainly reasonable for confirming the correctness of Michiels’s reserve weight of 5,000 grams, and thus for confirming the 5,008 grams she determined before removing 8 grams for testing. See United States v. Hill, 79 F.3d 1477, 1487-88 (6th Cir.) (affirming district court’s use of greater weight assessed at first weighing, rather than lesser weight assessed at second weighing, by finding reasonable the second chemist’s explanation of *965 “atmospheric conditions in the laboratory” as accounting for 1.4 grams of a 2.2 gram discrepancy between first and second weighings of cocaine), cert. denied, — U.S.-, 117 S.Ct. 158 , 136 L.Ed.2d 102 (1996); United States v. Thomas, 11 F.3d 620, 631-32 (6th Cir.1993) (affirming district court’s use of greater, initially determined weight when subsequent decrease could be attributed to evaporation and amounts being removed from initial amount for testing purposes). However, the important point is that even if we disregard Maloney’s “static cling” and humidity explanations, the 8 grams used by Michiels for testing must still be added back onto Maloney’s figure, as his weight amount did not account for it. This leaves us with a total of 5,005 grams. See Thomas, 11 F.3d at 631-32 (adding weight of cocaine used in initial testing back onto figure determined by independent expert’s subsequent reweighing and finding sum, though less than that initially determined by first expert, to still be above relevant sentencing cut-off amount).
The majority opinion also notes different weighing techniques employed by the chemists, and their use of different scales. However, the weighing techniques were both appropriate, and the only variance in the weights attributable to the different techniques is the “static cling” justification already discussed above, as the only real difference between the two was Michiels’s subtracting the weight of the clean bag before the drugs were poured into it, while Maloney subtracted the weight of the bag into which the drugs had been placed by Michiels. Rather than helping Flowal, this further shows that a greater weight is more appropriate, as Michiels’s weighing method did not account for the cocaine residue that would have stuck to the plastic in which the drugs were originally placed. Also, the use of different scales is of no moment, as the electronic scales were calibrated annually by an outside calibrating organization and monthly by a chemist.
In short, what initially appears problematic, namely the fact that the first actual weight was 5.008 kilograms and the second was 4.997 kilograms, is not a problem when it is understood that the evidence clearly establishes that 8 grams of the 11 gram discrepancy is the amount used to chemically test the substance in the first instance, which was not accounted for in the second figure. Once it is appropriately added back on to that lower figure, we are left with an amount well above the 5.000 kilogram mark. The furor over the humidity and static cling were red herrings, since the 3 gram discrepancy for which those rationales provide justification only fuels a debate over whether the actual weight was 5.008 kilograms or 5.005 kilograms, a distinction of no moment for sentencing purposes. Accordingly, I would affirm.