Petition for Writ of Certiorari — Bayerle v. United States

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® Supreme Court, U.S,

EILED

In Che ) wey

JQSEPH F. SPANIOL, JR.

Supreme Court Of The United State

OCTOBER TERM, 1989

RAYMOND FRANCIS BAYERLE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Domenic R. lamele

LEVY & IAMELE

114 E. Lexington Street

Suite 702

Baltimore, Maryland 21202

(301) 752-6160

Counsel for Petitioner

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LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmond. Virginia 23219 (804) 648-3664

~—

QUESTION PRESENTED

WHETHER THE FEDERAL SENTENCING

GUIDELINES VIOLATE A DEFENDANT'S

FIFTH AMENDMENT RIGHT TO DUE

PROCESS AND EQUAL PROTECTION OF

LAW WHEN THE " ANY DETECTABLE

TRACE" STANDARD IS EMPLOYED TO

DETERMINE A QUANTITY OF A

PRESCRIPTION DRUG WHICH IS

GREATER THAN THE SPECIFIC

QUANTITY PRESCRIBED?

TABLE OF CONTENTS

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Statutory Provisions Involved...3

Statement of the Case........... 3

Reasons for Granting Certiorari

TO SENTENCE ON THE BASIS OF THE GROSS

WEIGHT AND TRANSFORMATION OF

PHARMACOLOGICALLY PRESCRIBED DRUGS TO

A HEROIN EQUIVALENCY, IS AN UNCONSTITUTIONAL

VIOLATION OF PETITIONER'S DUE PROCESS

RIGHTS TO BE SENTENCED ON ACCURATE AND

RELIABLE INFORMATION........... 10

ee ee pee eue eee s 23

DPPC RSG eS GG eB Sect eccecssceees 26

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TABLE OF AUTHORITIES

Cases

United States v. Bayerle, 898 F.2d 28 (4th

CES sc SISO) Ch Ce cho ceseeecsdceeacesass passim

United States v. Tucker, 404 U.S. 443

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United States v. Whitehead, 849 F.2d 849

fl: Bei Fe): PrP eres 8

CONSTITUTIONAL PROVISIONS

Fifth Amendment of the United States

ComSts Cutis «co ccs onc0cs0seb bees bee passim

1B U.S.C. SSID) cccccvsasesscsscesesseses 5

21 U.S.C. §811l(c) (1), 829(a), 960 (6) (1)

Si Perr rerarre re Cee ETC Te ee ee eo ee 3

40 OU.8.C. Blade case ve vc seid ecvewestvceas 3

Federal Sentencing Guidelines........... 3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

RAYMOND FRANCIS BAYERLE,

PETITIONER

Vv.

UNITED STATES OF AMERICA

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

The Petitioner, Dr. Raymond F.

Bayerle, respectfully prays that a writ of

certiorari be issued to review the

judgment of the United States Court of

Appeals for the Fourth Circuit entered on

March 9, 1990.

OPINION BELOW

On March 9, 1990, the United States

Court of Appeals for the Fourth Circuit

affirmed in part, dismissed in part by

published opinion the decision of the

United States District Court for the

District of Maryland to impose upon

Petitioner a Sentence of 121 months in

accordance with the Federal Sentencing

Guidelines. United States v. Bayerle, 898

F.2d 28 (4th Cir. 1990) App. 1.

JURISDICTION

On March 9, 1990, the United States

Court of Appeals for the Fourth Circuit

affirmed in part, dismissed in part by

published opinion the decision of the

United States District Court for the

District of Maryland to impose upon

Petitioner a sentence of 121 months in

accordance with the Federal Sentencing

Guidelines. The jurisdiction of this

Court is invoked under 28 U.S.C. Section

1254 (1). See Supreme Court Rule. 17.1

(a), (c).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved

are: United States Constitution, Fifth

Amendment, 18 U.S.C. § 3953(b), 21 U.S.C.

§81l1l(c) (1), 841 (a), 960(6) (1) (A), 28

U.S.C. 991 and the Federal Sentencing

Guidelines. All statutory provisions are

found in the Appendix.

STATEMENT OF THE CASE

The instant case presents this Court

with a novel issue and one of public

concern.

On September 28, 1988, Dr. Raymond

Francis Bayerle was arrested pursuant to a

Warrant for Arrest issued by the United

States District Court for the District of

Maryland. The Grand Jury sitting in that

Court indicted Dr. Bayerle, charging him

with conspiracy to distribute, and

possession with intent to distribute and

dispense dilaudid (hydromorphone) and

dolophine (methodone), in violation of

Title 21, United States Code, §841; both

drugs are Schedule II Narcotic Controlled

Substances.

Dr. Bayerle pled guilty to the

charges against hii. Because of his

acceptance of responsibility and

cooperation with the United States

Attorney's office, the government

recommended a reduced Base Offense Level

Gf 32. Pending sentencing, the Court

released Dr. Bayerle to the Volunteers of

America Halfway House.

On June 9, 1989, the Honorable John

R. Hargrove of the United States District

Court for the District of Maryland

sentenced Dr. Bayerle to the lowest

sentence for that Base Offense Level, 121

months. App. 6. The sentence was based

entirely on the gross weight of the pills.

The events leading up to the arrest

and conviction of Dr. Bayerle can be

briefly stated. Dr. Bayerle, a respected

and well liked doctor, practiced emergency

room medicine for approximately 10 years.

Due to the daily, constant pressure of

emergency room medicine, and work in

excess of eighty hours per week, Dr.

Bayerle left emergency room medicine.

Shortly thereafter, Dr. Bayerle's family,

friends, and co-workers noticed an

alarming changes in his personality.

From January, 1982, to September,

1988, Dr. Bayerle's condition worsened to

the point where he became psychologically

dysfunctional. It was during this period

that he was approached by several

individuals (prior patients) to whom he

eventually sold completed prescriptions

for dilaudid and dolophine. As Dr.

Bayerle's mental condition deteriorated,

he was unable to resist the repeated

requests by these individuals. Dr.

Bayerle then began selling prescription at

a rate of $1.00-$2.00 for each

prescribed pill. In all, Dr. Bayerle sold

prescriptions for approximately 33,420

dilaudid tablets and 4,150 dolophine

tablets; however, at least one third of

these were legitimate prescriptions for

patients who were under medical treatment

by Dr. Bayerle at his clinic.!}

Unlike most controlled substance

mixtures, the weight and amount of

narcotics in prescription drugs is

determined and controlled by the

physician. As such, the exact amount of

narcotics in each pill of any prescription

is exactly known by the prescribing

doctor. In this case, Dr. Bayerle

prescribed 4 mgs. of narcotic substance

1) This fact was stipulated by the

United States Assistant Attorney at

the sentencing hearing.

for each dilaudid tablet; notwithstanding

the fact that each tablet weighed exactly

.09 grams.

Dr. Bayerle appealed to the United

States Court of Appeals for the Fourth

Circuit, arguing that his Due Process

rights had been violated because his

sentence was based on the gross weight

of the pharmacological drugs which had

been converted to a heroin equivalency,

instead of the actual weight of the

controlled substance involved. The Fourth

Circuit affirmed the District Court's

sentencing procedure. 898 F.2d at 3l.

The Court found that Dr. Bayerle's Due

Process rights were not violated by 21

U.S.C. §841(b) (1) because the gross weight

scheme was rationally related to the

legislative goals behind the law. Id. at

31.

In reaching its decision, the Court

analogized the constitutionality of the

Drug Equivalency ‘Tables with the

constitutionality of sentencing by the

guantity of the contraband without regard

to its purity. Specifically, the

Court used United States v. Whitehead, 849

F.2d 849 (4th Cir. 1988) to justify its

decision in the present case. In

Whitehead, the Defendant challenged the

Classification for sentencing purposes by

the quantity of the contraband without

regard to its purity. 849 F.2d at 859.

The court upheld the statute in question,

21 U.S.C. §841(b)(1) finding that the

rational basis test was satisfied. 849

F.2d at 859-60.

The Fourth Circuit reasoned that,

"the equivalency tables complained of here

are simply an extension of the scheme we

upheld in Whitehead." Bayerle, 898 F.2d

at 31. Because the Court perceived the

Drug Equivalency Tables as an extension

of the "detectable amount" standard, the

a ——

Drug Equivalency Tables satisfied the

rational basis test. Id. at 32.

In its determination, the Fourth

Circuit erroneously overlooked United

States v. Tucker, 404 U.S. 443 (1972).In

Tucker, the defendant was found guilty of

armed robbery. Before imposing

sentencing, the District Judge conducted

an inguiry into the Defendant's

background. The inquiry showed three

previous felony convictions. The judge

then sentenced him to the maximum term, 25

years. Tucker, 464 U.S. at 444.

Several years later, two of the three

previous felony convictions were found to

be constitutionally infirm because of the

lack of counsel. As such the Defendant

filed a motion in Federal District Court

claiming that the introduction at trial of

his prior invalid convictions tainted the

jury's verdict. Id. at 445.

Upon review, this Court held

Iai eaceiesiaaiitiatinneaeciile

that although a judge at sentencing has

broad discretion, he may not impose a

sentence based on data founded in part on

misinformation and material untruths. Id.

et 447.

By using the detectable amount

standard for prescription drugs, the

Sentencing Guidelines force a judge to use

misinformation and material untruths.

This petition for a Writ of Certiorari

follows the Fourth Circuit's affirmance in

part and dismissal in part of the District

Court's sentencing of Dr. Bayerle.

REASONS FOR GRANTING CERTIORARI

TO SENTENCE ON THE BASIS OF THE

GROSS WEIGHT AND TRANSFORMATION OF

PHARMACOLOGICALLY PRESCRIBED DRUGS TO A

HEROIN EQUIVALENCY, IS AN UNCONSTITUTIONAL

VIOLATION OF PETITIONER'S DUE PROCESS

RIGHTS TO BE SENTENCED ON ACCURATE AND

RELIABLE INFORMATION.

The facts of this case as summarized

in the opinion of the Fourth Circuit

establish that the pre-sentence report

used to determine Dr. Bayerle's base

ecffense level, calculated the combined

gross weight of the dilaudid and dolophine

tablets, which were then standardized

through the use of the Drug Equivalency

Takles, set out in the commentary to

U.S.S.G. Section 2D 1.1. The total gross

weight was converted to its heroin

equivalency. The report established a

base offense level from the heroin

equivalency in accordance with the drug

quantity table in Section 2D 1.1l(c).

United State v. Bayerle, 898 F.2d at 30.

This resulted in a significant increase in

the prison term for Dr. Bayerle. In the

instant case, the amount of controlled

substance converted was contained in

33,420 dilaudid tablet. and 4,150

dolophine tablets. Each dilaudid had no

more than four (4) milligrams of dilaudid

per pill. Each dolophine tablet had no

more than ten (10) milligrams of dolophine

per tablet. On the basis of the total

alleged, there were 133,680 milligrams for

all of the tablets of dilaudid involved.

This converts into 133 grams and, divided

by approximately 28 grams per ounce,

results in the controlled substance being

only four ounces. The heroin equivalency

multiplier as related to the dilaudid is

arbitrary and capricious, because when one

uses the 2.5 multiplier to bring the

amount of dilaudid to a heroin equivalency

based on the gross weight of the pills, it

results in 332.5 grams or 11.87 ounces of

the controlled substance; almost 8 ounces

more than the actual controlled substance

involved.

As to the dolophine tablets, as

stated there were 4,150 pills. Each of

these tablets had ten (10) milligrams of

dolophine. There were 41,500 miliigrams

of dolophine or 41.5 grams. Dividing this

figure by approximately 28 grams. per

cunce, there was a total of dolophine of

1.5 ounces. This calculation benefits Dr.

Bayerle, which validates even more that

the conversion into heroin equivalency is

arbitrary and capricious. On one hand it

is beneficial, while on the other it

proves harmful. There is simply no

uniform consistency when the heroin

equivalency calculation is used.

This formula for calculation of

sentences results in a_ substantial Due

Process violation against Dr. Bayerle and

other persons who violate prescription

drug statutes. The potential prison term

is unnecessarily increased. In the

present case, Dr. Bayerle's sentence

should have been four to six years rather

than the ten years (Base Offense level of

32) he received, if the prescriptive drugs

had not been subjected to being

transformed into a heroin equivalency,

based on total gross weight of the pills.

The question presented in the

instant case is a novel one for this

Court, as it was for the Fourth Circuit.

The Fourth Circuit rejected Dr. Bayerle's

position. The Court erroneously relied

upon United States v. Whitehead, 849 F.2d

849 (4th Cir. 1988) in deciding this case.

In Whitehead, the appellants challenged

as arbitrary and capricious, 21 U.S.C.

§841(b) (1) (B), classification of

penalties. This classification focuses

upon the quantity of contraband found

without regard to its purity or the role

of the offender. Appellants further

alleged that absent any rational basis,

the statute violated their Fifth Amendment

Due Process and Equal Protection Rights.

In response to their challenge, the court

delved into the legislative history of the

Narcotics Penalties and Enforcement Act.

The Court determined that the history

clearly indicated Congress consciously

chose the "any detectable amount standard"

Soe

(also referred to as the "market oriented

approach") to classifying various

penalties for drug offenses. According to

the legislative history, Congress wanted

to concentrate on persons "responsible for

creating and delivering large quantities,"

including sellers of "substantial street

quantities." Whitehead, 849 F.2d at 859,

(quoting H.R. Rep. No. 845, 99th Cong. 2d.

Sess., Pt. 1 at 12 (1986) (Report of the

House Committee of the Judiciary)).

Therefore, the Court upheld the standard

of any detectable amount of substance for

sentencing purposes.

The Court in Bayerle extended Whitehead

by analogizing the Drug Equivalency Tables

to be an extension of the "any detectable

amount standard." The Court used the

commentary to §2Dl.1 to support its

decision. The commentary states that the

commission "has used the sentences

provided in and equivalencies derived from

ne eitninterentaniateiile

the statute (21 U.S.C. §841(b) (1)) in the

Drug Equivalency Tables in order to

provide conversion factors for hosts of

illegal substances not explicitly treated

within the statute." U.S.S.G. §2D1.1,

comment. (n. 10). The Court went on to

quote a note to §2Dl.1(c) that stated,

"the weight of a controlled

substance...refers to the entire weight of

any mixture or substance containing a

aGetectable amount of a controlled

substance". Although the note refers only

to the Drug Quantity Table, the Court held

that the Drug Equivalency Tables were

simply an extension of the Drug Quantity

Tables as upheld in Whitehead. Bayerle,

898 F.2d at 3l.

The Drug Equivalency Tables neglect

to focus upon controlled substances

distributed through the means of

a prescription. This oversight results

in an arbitrary and capricious system that

is against public policy. The lack of

recognition of the weight and type of

prescription drugs is unreasonable.

The thrust of the present issue

is the use of inaccurate, unreliable

information used to incarcerate a

defendant. This Court held in United

States v. Tucker, 404 U.S. 443, 447

(1972), that Due Process rights are

violated when a sentencing judge utilizes

inaccurate and unreliable information to

sentence a Defendant. The sentence is then

based upon "misinformation" of a

"constitutional magnitude." When accurate

information is available and reliable,

there is no justification for violating

Fifth Amendment Due Process Rights by

using erroneous and non-scientific weight

to determine a Defendant's potential

prison term. The Fourth Circuit

overlooked the principles set forth in

Tucker.

The trial court in the present case

before this Court, made use of unreliable

and inaccurate information. The equating

of prescription drugs to a vague,

unscientific formula to determine a length

of sentence violated Dr. Bayerle's Fifth

Amendment Due Process and Equal Protection

rights.

The Controlled Substance Penalties Act

of 1983, the Anti-drug Abuse Act, and the

Sentencing Commission's Guidelines have

shifted the emphasis on drug offense

sentence determination from the type of

drugs to the quantity of drugs. This

shift has made the calculation of drug

weight and classification the decisive

factor in the length of a sentence, thus

increasing the constitutional significance

of its accuracy.

The information used by the Criminal

Justice System to determine the length of

time a Defendant should spend incarcerated

must be accurate and reliable.

It should at the very least withstand a

preponderance of the evidence standard.

The Criminal Justice System cannot be

permitted to rely on questionable

information especially when accurate,

reliable information is so readily

available.

The Sentencing Commission addressed

the nettlesome problem of calculating

street drug weight by using the "any

detectable amount" standard: if there is

any detectable trace of any controlled

substance within a compound, the entire

gross weight of the compound determines

the length of the sentence. See

Sentencing Guidelines, page 2.39, title 21

U.S.C. Sec. U.S.C., Sec. 960 (b) (1) (A).

It is clear in this case, that the only

amount that was intended to be distributed

was the exact scientific amount for which

the prescription was written. To

infer otherwise goes against the scientific

principles that doctors and

pharmacologists use in prescribing all

medicines which require prescriptions.

Any policy justifications for sentencing

based on the overall amount of street

drugs is absent when sentencing guidelines

are calculated for the sale of

pharmaceutical drugs. Pharmaceutical

drugs are highly regulated by both federal

statute and regulation.* In the case of

pharmaceutical drugs, there is no public

policy reason that outweighs a Defendant's

Due Process and Equal Protection rights.

To further substantiate that

pharmaceutical drugs should be treated in

a separate category, and thus not subject

2) See 21 U.S.C. 825, (labeling a

package); 21 U.S.C. 826 (production

quotas and regulations); 21 U.S.C. 823

(registration of manufacturers); 21

C.F.R. 1301 (registration of manu-

facturers); 21 C.F.R. 1302 et. seq.

(labeling and packaging).

to the Drug Equivalency Table, Congress

recognized that pharmaceutical

drugs are highly monitored by the previously

noted federal statutes and regulations.

Title 21, Sec. 829, of the United States

Code is entitled "Prescriptions," and

focuses on the illegal distribution

through use of prescriptive controlled

substances. Within Sections 21, Sec. 841

and 960, the penalties for prescription

drugs are not identified and categorized.

This oversight results in fundamental

unfairness and a system that is

imbalanced. Without a specified category

for addressing controlled substances sold

through use of a prescription,

misinterpretation and confusion is

created. This results in a violation of

an individual's Fifth Amendment Due

Process and Equal Protection rights.

The errors in the instant case have

been further compounded by the Sentencing

Commission creation of a system by which

all controlled substances, with or without

any legitimate medicinal value, are

equated to heroin, a drug with no

legitimate recognized medical value. (The

Guidelines, age 2.38). The Commission's

decision to measure various drugs against

heroin was an arbitrary and capricious

one. There is no rational basis to use

this system in the case of prescriptive

controlled substances. A more rational

system for measuring equivalencies would

recognize and differentiate between drugs

which have a legitimate use and those

which do not. Dr. Bayerle contends that

his Due Process and Equal

Protection rights were violated by an

arbitrary Criminal Justice System that

equates prescription drugs to heroin. The

Sentencing Commission's failure to consider

and make a distinction between the format

in which a controlled substance is sold is

against public policy.

The question presented is clearly of

the utmost importance in light of the

Fourth Circuit's decision and the required

use of the Federal Sentencing Guidelines.

CONCLUSION

The calculation of gross weight

in the manner of the present case violates

the Constitutional protections established

for Dr. Bayerle and the general public in

the Fifth Amendment to the United State

Constitution. The issue presented in this

case is a novel one that deserves this

Court's review. The Sentencing

Guidelines, although deemed constitutional

as a whole, have yet to be evaluated in

the use of prescriptive controlled

substances. It serves no purpose to

utilize a system that is arbitrary and

capricious in cases involving these types

of controlled substances. Congress

recognized the differences between street

and prescription controlled substances by

separating them into different offenses.

The Sentencing Guidelines should also

reflect this differentiation. The

transformation of prescriptive controlled

substances into a heroin equivalency lacks

any rational basis. In upholding the

District Court's use of gross weight and

the Drug Equivalency Tables to determine

the length of incarceration, the Fourth

Circuit found that there was no

distinction between prescriptive and

street controlled substances, and that

transformation of prescriptive controlled

substances into a heroin equivalency is

within Congressional intent. The question

should be settled by this Court.

The Court should issue a Writ of

Certiorari to the United States Court of

Appeals for the Fourth Circuit so that

this Court may determine a fair, accurate

and reliable method to be used in

sentencings involving prescription drugs.

Respectfully submitted,

Domenic R. Iamele

Levy & Iamele

Suite 702

114 E. Lexington Street

Baltimore, Maryland 21202

752-6160

Counsel for Petitioner

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a ——— ee ee a 2 le a Ae ee a — em

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

RAYMOND FRANCIS BAYERLE,

PETITIONER

Vv.

UNITED STATES OF AMERICA,

RESPONDENT

APPENDIX

TABLE OF CONTENTS

United States v. Bayerle,

SSE F.2d (1990) .ccccccccccccccs App.

Judgment and Commitment Order..App.

21 U.S.C. Section B29...cacees -App.

21 U.S.C. Section 841. ...cceces App.

21 U.S.C. Section 960........2. App.

21 U.S.C. Section 991.....ccccs App.

Federal Sentencing Guidelines. .App.

Fifth Amendment of the United

SCAtSS CONBEICUCION. .cccccccere App.

898 Fed.2d 28

UNITED STATES of America,

Plaintiff, Appellee,

Vv.

Raymond Francis BAYERLE,

De fendant-—Appellant.

No. 89-5166.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 7, 1989.

Decided March 9, 1990.

Defendant was convicted in the United

States District Court for the District of

Maryland, John R. Hargrove, J., of drug

offenses, and he appealed. The Court of

Appeals, Butzner, Senior Circuit Judge, held

that: (1) court could not review trial

court's refusal to depart downward from

the guidelines, and (2) sentencing

defendant based on gross weight of

pharmacological drugs which he prescribed

did not violate due process.

Affirmed in part and dismissed in

part.

App. 1

Domenic Ralph Iamele, Levy & Iamele,

argued, Baltimore, Md., for

defendant-appellant.

Miriam Krinsky, argued, Breckinridge

L. Willcox, U.S. Atty., Gregory Welsh,

Asst. U.S. Atty., on brief, Baltimore,

Md., for plaintiff-appellee.

Before RUSSELL and WILKINS, Circuit

Judges, and BUTZNER, Senior Circuit

Judge.

BUTZNER, Senior Circuit Judge:

Dr. Raymond Francis Bayerle pleaded

guilty to a variety of federal charges,

including conspiracy to distribute

dilaudid (hydromorphone) and dolaphine

(methadone) in violation of 21 U.S.C.

Section 846. On appeal he challenges the

sentence imposed for the drug offenses on

several grounds. We conclude that the

district court's refusal to depart

downward is not appealable, and we see no

merit in Bayerle's other assignments of

App. 2

error. Accordingly, we dismiss part of

the appeal and otherwise affirm the

district court judgment.

Bayerle was a licensed physician in

Maryland when, according to the stipulated

facts in Bayerle's plea agreement, he sold

completed prescriptions for dilaudid and

dolaphine. The purchasers were

coconspirators who used the prescriptions

to buy drugs for resale. Bayerle

illegally prescribed over 37,000 tablets

in this manner from January 1987 to

September 1988. For these services he

received first $1 and later $2 per tablet.

{1] Because Bayerle's offenses

continued until after November 1, 1987,

his sentence is subject to the guidelines

promulgated by the United States

Sentencing Commission. The guideline

range for Bayerle's offenses is 121 to 137

months.

App. 3

Bayerle contends that the district

court should have departed downward from

the guideline range. He relies on U.S.C.

Section 3553(b) and two policy statements

in the Guidelines Manual as the basis for

his argument. Section 3553(b) directs a

sentencing court to depart from the

guideline range when the court "finds that

there exists an aggravating or mitigating

circumstance of a kind, or to a degree,

not adequately taken into consideration by

the Sentencing Commission... that should

result in a sentence different from that

described." Section 5K2.0, a policy

statement in the Guidelines Manual,

introduces in turn a nonexhaustive list of

factors which "may warrant departure from

the guidelines, under some circumstances,

in the discretion of the sentencing

judge." One such factor is the

"diminished capacity” of the defendant,

defined by Section 5K2.13.

App. 4

According to Bayerle, the sentencing

court should have imposed a sentence below

the -guideline range because he presented

evidence of emotional illness, which he

claims contributed to his illegal behavior

and hence diminished his capacity within

the meaning of Section 5K2.13. The

district court's error under this view

amounts to one of fact. Bayerle reads

Section 3553(b), in conjunction with

Section 5K2.13, to require a downward

departure whenever there is sufficient

evidence of diminished capacity. The

district court, however, concluded that

"diminished capacity... is not, in my

Opinion, a very good reason to dispense

drugs. I think that you had the capacity

to understand what you were doing. That's

what all the doctors said, what all the

psychiatrists said..." The district court

based its finding about Bayerle's capacity

on the report of an examination conducted

App. 5

at a federal correctional institution.

The report concluded that "[a])t the time

of the offense Dr. Bayerle was able to

appreciate the nature and quality of his

actions." The court imposed a sentence at

the lower end of the guideline range, 121

months.

The government argues that a court's

refusal to depart downward from the

guideline range is not appealable and

that, alternatively, the court did not err

in refusing to depart.*

Recently, seven circuits have decided

that refusals to depart downward from the

*Our court, in an earlier opinion,

reviewed a decision not to depart downward

without commenting on whether a defendant

could appeal a refusal to depart. United

States v. Sheffer, No. 89-5573, slip op.

at 8, 896 F.2d 842, 845 (4th Cir. Feb. 20,

1990). The issue was not directly

presented in that case; consequently,

Sheffer does not control the discussion

here. See also United States v. McCrary,

887 F.2d 485, 488-89 (4th Cir.1989).

App. 6

CREE OO Naat RN eel NR,

guideline range are not appealable.

United States v. Tucker, 892 F.2d 8 (lst

Cir. 1989); United States v. Colon, 884

F.2d 1550 (2d Cir. 1989); United States

v.Denardi, 892 F.2d 269 (3d Cir.1989);

United States v. Buenrostro, 868 F.2d 135

(5th Cir.1989); United States v. Draper,

888 F.2d 1100 (6th Cir.1989); United

States v. Franz, 886 F.2d 973 (7th

Cir.1989); United States v. Fossett, 881

F.2d 976 (11th Cir.1989). Some of the

opinions reason that the courts of appeals

lack jurisdiction to entertain appeals

from refusals to depart. Others rest this

decision on the statutory limitations of a

defendant's right to appeal. Compare

Franz, 886 F.2d at 981 n. 8; Denardi, 892

F.2d at 272 (no jurisdictions to review)

with Fossett, 881 F.2d at 978-79; Colon,

884 F.2d at 1552-56 (Statute confers no

right to appeal).

[2,3] Title 28, Section 1291 of the

App. 7

United States Code confers jurisdiction on

us Of appeals from final orders of

district courts. A sentence is a final

order. We therefore have jurisdiction to

consider the district court's sentencing

order in light of the statute governing a

defendant's appeal. Cf. Bell v. Hood, 327

U.S. 678, 680-83, 66 S.Ct. 773,774=-75, 90

L.Ed. 939 (1946). In any event, the

reasons for denying review are essentially

the same under either jurisdictional or

statutory theories. Because we are

persuaded by the sound precedent that

denies review of refusals to depart

downward, we find it necessary to

reiterate in detail the reasons our

colleagues in other courts of appeals have

marshalled to reach this result.

Title 18, Section 3742 of the United

States Code gives specific circumstances

under which a defendant may appeal a

sentence:

App. 8

i dain nee eee cine

TD ee tec PTE eh ee

Aiea Le ale Ht a AS

Oa cet “Hinata nate son

(a) Appeal by a defendant-A

defendant may file a notice of appeal in

the district court for review of an

otherwise final sentence if the sentence-

(1) was imposed in violation of

law;

(2) was imposed as a result of an

incorrect application of the sentencing

guidelines; or

(3) is greater than the sentence

specified in the applicable guideline

range to the extent that the sentence

includes a greater fine or term of

imprisonment, probation or supervised

release than the maximum established in

the guideline range, or includes a more

limiting condition of probation or

supervised release under Section

3563(b) (6) or (b) (11) than the maximum

established in the guideline range; or

(4) was imposed for an offense for

which there is no sentencing guideline and

App. 9

is plainly unreasonable.

In a recent case which considers a

district court's refusal to depart

downward, Judge Seitz succinctly analyzed

Section 3742:

We look in vain for language

governing a defendant's right to appeal

the denial of relief under the foregoing

circumstances. The portion of the statute

providing for appeals by a defendant (18

U.S.C., Section 3742) simply does not

authorize such an appeal. Certainly

Section 3742(a)(2) (incorrect application

of guidelines) does not apply in the

present context. Otherwise, as the

government suggests, 4a discretionary

refusal to go below the guidelines would

seem also to apply to situations in which

a defendant challenged an enhanced

departure. Such a result would render

Section 3742(a)(3) largely superfluous.

Finally, although not relied on by

App. 10

NA hn oad I roel ee an aeaty eed, . %

the defendant, we do not believe that 18

U.S.C., Section 3553(b) (permitting a

deviation from the guidelines under

certain circumstances), when read with

Section 3553(a) (factors to be considered

in imposing a sentence) converts an

unappealable exercise of discretion into

an error of law that may be reviewed under

Section 3742(a) (1) in some amorphous

circumstances. If such a result is

desirable, it is for Congress to Say so.

We conclude that Section 3742(a) does

not authorize an appeal in the present

circumstances.

Denardi, 892 F.2d at 272 (footnote

omitted).

III

[4] There is an exception to the

precept that a defendant cannot appeal a

refusal to depart downward. Section

3742(a) (1) provides for review of a

sentence "imposed in violation of law." A

App. li

defendant can appeal if this very narrow

situation arises. Franz, 886 F.2d at 980;

Fossett, 881 F.2d at 979; Buenrostro, 868

F.2a@ at 139. Thus, if the refusal to

depart downward were based on the district

court's mistaken view that it lacked the

authority to depart, the defendant could

appeal. See. U.S.S.G. Ch. 3, PR. &

(listing some factors justifying

departure pursuant to 18 U.S.C. Section

3553(b)); Colon, 884 F.2d at 1553;

Fossett, 881 F.2d at 979; United States v.

Russel, 870 F.2d 18 (lst Cir.1989).

Bayerle contends that he may appeal

because the court mistakenly believed it

was without authority to depart. The

record, however, refutes this contention.

The court knew that it could depart. It

refused it because it concluded that the

evidence did not justify departure.

[5] Bayerle also argues that his

App. 12

sentence is unconstitutional. He contends

that sentencing him based on the gross

weight of the pharmacological drugs he

prescribed violates his due process

rights. The presentence report calculated

the combined weight of the dilaudid and

dolaphine and used the Drug Equivalency

Tables set out in the commentary to

Section 2Dl.1 to convert the total to a

heroin equivalency. The report

established a base cffense level from the

heroin equivalency in accordance with the

Drug Quantity Table in Section 2Dl.1l(c).

Use of the pills' gross weight to figure

Bayerle's base offense level amounts to a

due process violation, we are told,

because the potency of these drugs varies

both with their form and the dosage of a

given pill. Gross weight does not account

for the difference between a 4mg. and an 8

mg. dilaudid, for example, because the

gross weight remains the same even though

App. 13

one pill has twice the potency of the

other. Similarly, the equivalency table

makes no adjustment for the increased

potency of the drug in liquid as compared

to the pill form.

We have confronted and rejected this

argument before in a slightly different

context. In United States v. Whitehead,

849 F.2d 849 (4th Cir.1988), the Defendant

challenged the classification for

sentencing purposes of cocaine "by [the]

quantity to [the] contraband without

regard to its purity.” 849 F.2d at 859.

The statute in question there, 21 U.S.C.

Section 841(b) (1), provided that so long

as a ovesine mixture contained a

"detectable amount" of cocaine, the gross

weight of the mixture would be the basis

for sentencing. We upheld the statute,

finding the gross weight scheme rationally

related to the legislative goal behind the

law. 849 F.2d at 859-60; accord United

App. 14

AO ALR NRE Te i ER Nh Ot Ae ii thi!

States v. Holmes, 838 F.2d 1175, 1177-78

(llth Cir. 1988)

[6] The equivalency tables complained

of here are simply an extension of the

scheme we upheld in Whitehead. The

commentary to Section 2Dl.1 states that

the Commission "has used the sentences

provided in, and equivalences derived

from, the statute (21 U.S.C. Section

841(b)(1))" in the Drug Equivalency Tables

in order to provide "conversion factors"

for a host of illegal substances not

explicitly treated in the statute.

U.S.S.G. Section 2Dl.1, comment. (n. 10).

A note to Section 2Dl.l(c) adds that "the

weight of a controlled substance... refers

to the entire weight of any mixture or

substance containing a detectable amount

of the controlled substance” (emphasis

added). Although the note refers to the

Drug Quantity Table in 2Dl.l(c), we read

it to apply as well to the Drug

App. 15

States v. Holmes, 838 F.2d 1175, 1177-78

(lith Cir. 1988)

[6] The equivalency tables complained

of here are simply an extension of the

scheme we upheld in Whitehead. The

commentary to Section 2Dl.1 states that

the Commission “has used the sentences

provided in, and equivalences derived

from, the statute (21 U.S.C. Section

841(b)(1))" in the Drug Equivalency Tables

in order to provide “conversion factors"

for a host of illegal substances not

explicitly treated in the statute.

U.S.S.G. Section 2D1.1, comment. (n. 10).

A note to Section 2Dl.l(c) adds that "the

weight of a controlled substance... refers

to the entire weight of any mixture or

substance containing a detectable amount

of the controlled substance" (emphasis

added). Although the note refers to the

Drug Quantity Table in 2Dl.1l1(c), we read

it to apply as well to the Drug

App. 16

Equivalency Tables which follow.

Consequently, the equivalency tables are

premised upon the same “detectable amount"

standard approved in Whitehead. Just as

we upheld the quantity-based approach in

Whitehead for 21 U.S.C. Section 841(b) (1),

we uphold it in the Drug Equivalency

Tables.

[7] Our conclusion is not swayed by

Bayerle's observation that the guidelines

permit consideration of drug purity in

determining a defendant's role in a drug

offense. Commentary to Section 2Dl.1

explains that "[t]rafficking in controlled

substances...of unusually high purity may

warrant an upward departure [from the

guideline range]... because [the purity

may be] probative of the defendant's role

or position in the chain of distribution."

U.S.S.G. Section 2D1l.1, comment. (n. 9).

Although Bayerle finds it contradictory

for a sentencing court to consider drug

App. 1?

purity there and not in the equivalency

tables, we find no such difficulty. The

commentary merely identifies a situation

which might warrant an upward departure.

It is entirely consistent with the

equivalency tables. Cf. United States v.

Baker, 883 F.2d 13, 15 (5th Cir. 1989).

We dismiss Bayerle's complaint that

the district court erred by not departing

downward. We have no occasion to review

this assignment or error on its merits

because it is not appealable. In all

other respects we affirm the judgment of

the district court.

App. 18

UNITED STATES DISTRICT COURT

District of Maryland

UNITED STATES OF AMERICA

Vv.

RAYMOND FRANCIS BAYERLE

JUDGMENT INCLUDING SENTENCE

UNDER THE SENTENCING REFORM ACT

Case Number HAR-88-0336

Gregory Welsh

Attorney for the United States

Domenic R. Iamele (RET)

Defendant's Attorney

THE DEFENDANT :

x Pleaded guilty to count(s) 1 and 23.

Accordingly, the Defendant is adjudged

guilty of such count(s),

which involve the following offenses:

Title & Section Nature of Offense

21:846 Conspire to distr. &

dispsne, and to possess

w/ intent to distr.

Sch.II NCS, Dilaudid &

Dolophine.

26:5861(e) Transfer firearms.

Count No(s).

The defendant is sentenced as provided in

App. 19

_ : | ~s ° —— “4 ’ :

pages 2 through 4 of this Judgment.

The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

x Count (s) 2 thru 22 and 24 and

25 and are dismissed on the

motion of the United States.

x It is ordered that the defendant

shall pay to the United States

a special assessment of $100.00.

It us further ordered that the

defendant shall notify the United

States Attorney for this district within

30 days of any change of

residence or mailing address until

all fines, restitution, costs,

and special assessments imposed by

this Judgment are fully paid.

Defendant's Soc. Sec. No.:

June 9, 1989

date of imposition of Sentence

Defendant's mailing address:

4601 E. Monument Street

Baltimore, Maryland

Signature of Judicial Officer

JOHN R. HARGROVE

Name & Title of Judicial Officer

Date

App. 20

Judgment-Page 2 of 4

Defendant: RAYMOND F. BAYERLE

eae

Case Number: HAR-88-0336

IMPRISONMENT

The Defendant is hereby committed

to the custody of the United

States Bureau of Prisons to be imprisoned

for a term of 121 months.

App. 21

Judgment-Page 3 of 4

Defendant: RAYMOND F. BAYERLE

Case Number: HAR-88-0336

SUPERVISED RELEASE

Upon release from imprisonment,

the Defendant shall be on supervised

release for a term of 3 years.

While on supervised release, the

Defendant shall not commit another

Federal, state or local crime and

shall comply with the standard conditions

that have been adopted by this court (set

forth on the following page.) If this

judgment imposes a restitution obligation,

it shall be a condition of supervised

release that the defendant pay any such

restitution that remains unpaid at the

commencement of the term of supervised

release.

App. 22

bes

As SRO TS Pica etl SUNN in Bell elec WRAL teenie celal

Judgment-Page 4 of 4

Defendant: RAYMOND F. BAYERLE

Case Number: HAR-88-0336

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on probation

or supervised release pursuant to this

judgement:

1) The defendant shall not commit another

Federal, state or local crime;

2) the defendant shall not leave the

judicial district without the permission

of the court or probation officer;

3) the defendant shail report to the

probation officer as directed by the court

or probation officer and shall submit a

truthful and complete written report

within the first five days of each month;

4) the defendant shall answer truthfully

all inguiries by the probation officer and

follow the instructions of the probation

App. 23

officer;

5) the defendant shall support his or her

dependants and meet other family

responsibilities;

6) the defendant shall work regularly at

a lawful occupation unless excused by the

probation officer for schooling, training,

or other acceptable reasons;

7) the defendant shall notify the

probation officer within seventy-two hours

of any change in residence or employment;

8) the defendant shall refrain from

excessive use of alcohol and shall not

purchase, possess, use, distribute, or

administer any narcotic or other

controlled substance, or any paraphernalia

related to such substances, except as

prescribed by a physician;

9) the defendant shall not frequent

places where controlled substances are

illegally sold, used, distributed, or

administered;

App. 24

10) the defendant shall not associate

with any persons engaged in criminal

activity, and shall not associate with any

person convicted of a felony unless

granted permission to do so by the

probation officer;

11) the defendant shall permit a

probation officer to visit him or her at

any time at home or elsewhere and shall

permit confiscation of any contraband

observed in plain view by the probation

officer;

12) the defendant shall notify the

probation officer within seventy-two hours

of being arrested or questioned by a law

enforcement officer;

13) the defendant shall not enter into

any agreement to act as an informer or a

special agent of a law enforcement agency

without the permission of the court;

14) as directed by the probation officer,

the defendant shall notify third parties

App. 25

of risks that may be occasioned by the

defendant's criminal record or personal

history or characteristics, and shall

permit the probation officer to make such

notifications and to confirm the

defendant's compliance with such

notification requirement.

These conditions are in addition to any

other conditions imposed by this Judgment.

App. 26

Sa Da a Sialic Heli

Title 21 U.S.C.A., Section 829, Drug Abuse

Prevention and Control

(a) Except when dispensed directly by

a practitioner, other than a pharmacist,

to an ultimate user, no controlled

substance in schedule II, which is a

prescription drug as determined under the

Federal Food, Drug, and Cosmetic Act. may

be dispensed without the written

prescription of a practitioner, except

that in emergency situations, as

prescribed by the Secretary of regulatiou

after consultation with the Attorney

General, such drug may be dispensed upon

Oral prescription in accordance with

section 503(b) of that Act. Prescriptions

shall be retained in conformity with the

requirements of section 827 of this title.

No prescription for a controlled substance

in schedule II may be refilled.

Schedule II and IV substances

(b) Except when dispensed directly

App. 27

by a practitioner, other than a

pharmacist, to an ultimate user,

no controlled substance in schedule III

or IV, which is a prescription drug as

determined under the Federal — Drug,

and Cosmetic Act, may be dispensed without

a written or oral prescription in

conformity with section 503(b) of that

Act. Such prescription may not be filled

or refilled more than six months after the

date thereof or be refilled more than

five times after the date of the

prescription unless renewed by the

practitioner.

Schedule V substances

Schedule V which is a drug may be

distributed or dispensed other than for a

medical purpose.

Non-prescription drugs with abuse

potential

(ad) Whenever it appears to the

App. 28

Me ee ee

A hhh Cath at catalan Shen cer ebi OM Hiab ag ipien, di caplet

Attorney General that a drug not

considered to be a prescription drug under

the Federal Food, Drug, and Cosmetic Act

should be so considered because of its

abuse potential, he shall so advise the

Secretary and furnish to him all available

data relevant thereto (Pub.L. 91-513,

Title II, § 309, Oct. 27, 1970, 84 Stat.

1260.)

App. 29

Title 21 U.S.C.A., Section 841, Prohibited

acts A

Unlawful acts

(a) Except as authorized by this

subchapter, it shall be unlawful for any

person knowingly or intentionally-

(1) to manufacture, distribute, cr

dispense, or possess with intent to manu-

facture, distribute, or dispense, a

controlled substance; or

(2) to create, distribute, or

dispense, or possess with intent to

distribute or dispense, a counter-

feit substance.

Penalties

(b} Except as otherwise provided in

section 845, 845a, or 845b of this title,

any person who violated subsection (a) of

this section shall be sentenced as

follows:

(1) (A) In the case of a violation

of subsection (a) of this section

App. 30

involving--

(i) 1 kilogram or more of a mixture

or substance containing a detectable

- - 2 2

amount of heroin;

(ii) 5 kilograms or more of a mixture

or substance containing a detectable

amount of--

hha ail ded iat es oe ee ae A eae ee ae ae

(I) coca leaves, except coca

leaves and extracts of coca leaves from

which cocaine, ecgonine, and derivatives

of ecgonine or their salts have been

removed;

(II) cocaine, its salts, optical

and geometric isomers, and salts of

isomers;

(III) ecgonine, its derivatives,

their salts, isomers, and salts of

isomers; or

(IV) any compound mixture, or

preparation which contains any quantity

of any of the substance! referred to in

subclauses (1) through (III);

App. 31

(iii) 50 grams or more of a mixture or

substance described in clause (ii) which

contains cocaine base;

(iv) 100 grams or more of

phencyclidine (PCP) or 1 kilogram

or more of a mixture or substance

containing a detectable amount of

phencyclidine (PCP);

(v) 10 grams or more of a

mixture or substance containing a

detectable amount of lysergic acid

diethylamide (LSD);

(vi) 400 grams or more of a

mixture or substance containing a

detectable amount of N-phenyl-

N-[1-(2-phenylethyl) -4piperidiny1l]

propanamide or 100 grams of more of a

mixture or substance containing a

detectable amount of any analogue of N-

pheny1l-N-[1-(2-phenylethy1l) -4-

piperidinyl] propanamide;

(vii) 1000 kilograms or more of a

App. 32

mixture or substance containing a

detectable amount of marihuana, or

1,000 or more marihuana plants

regardless of weight; or

(viii) 100 grams or more of

methamphetamine, its salts, isomers, and

salts of its isomers or 100 grams or more

of a mixture or substance containing a

detectable amount of methamphetamine, its

salts, isomers, or salts of its isomers;

such persons shall be sentenced to a term

of imprisonment which may not be less than

10 years or more than life and if death or

serious bodily injury results from the use

of such substance shall be not less than

20 years or more than life, a fine not to

exceed the greater of that authorized in

accordance with the provisions of Title

18, or $4,000,000 if the defendant is an

individual or $10,000,000 if the defendant

is other than an individual, or both. If

any person commits such a violation after

App. 33

a prior conviction for a felony drug

offense has become final, such person

shall be sentenced to a term of

imprisonment which may not be less than

20 years and not more than life

imprisonment and if death or serious

bodily injury results from the use of such

substance shall be sentenced to life

imprisonment, a fine not to exceed the

greater of twice that authorized in

accordance with the provisions of Title

18, or $8,000,000 if the defendant is an

individual or $20,000,000 if the defendant

is other than an individual, or both. If

any person commits a violation of this

subparagraph or of section 845, 845a, or

845b of this title after two or more prior

convictions for a felony drug offense have

become finai, such person shall be

sentenced to a mandatory term of life

imprisonment without release and fined in

accordance with the preceding sentence.

App. 34

For purposes of this subparagraph, the

term "felony drug offense" means an

offense that is a felony under any

provision of this subchapter or any other

Federal law that prohibits or restricts

conduct relating to narcotic drugs,

marihuana, or depressant or stimulant

substances or a felony under any law of a

State or a foreign country that prohibits

or restricts conduct relating to narcotic

drugs, marihuana, or depressant or

stimulant substances. Any sentence under

this subparagraph shall, in the absence of

such a prior conviction, impose a term of

supervised release of at least 5 years in

addition to such term of imprisonment and

shall, if there was such a prior

conviction, impose a term of supervised

release of at least 10 years in addition

to such term of imprisonment. Nothwith-

standing any other provision of law, the

court shall not place on probation or

App. 35

suspend the sentence of any person

sentenced under this subparagraph. No

person sentenced under this subparagraph

shall be eligible for parole during the

term of imprisonment therein.

(B) In the case of a violation of

subsection (a) of this section involving-

(i) 100 grams or more of a mixture

or substance containing a detectable

amount of heroin;

(ii) 500 grams or more of a mixture

or substance containing a detectable

amount of--

(I) coca leaves, except coca

leaves and extracts of coca leaves from

which cocaine, ecgonine, and derivatives

of ecgonine or their salts have been

removed;

(II) cocaine, its salts, optical

and geometric isomers, and salts of

isomers;

(III) ecgonine, its derivatives,

App. 36

ltt

their salts, isomers, and salts of

isomers; or

(IV) any compound mixture, or

preparation which contains any quantity

of any of the substance! referred to in

subclauses (1) through (III);

(iii) 5 grams or more of a mixture or

substance described in clause (ii) which

contains cocaine base;

(iv) 10 grams or more of

phencyclidine (PCP) or 190 grams

Or more of a mixture or substance

containing a detectable amount of

phencyclidine (PCP);

(v) 1 gram or more of a

mixture or subst2nce containing a

detectable amount of lysergic acid

diethylamide (LSD);

(vi) 40 grams or more of a

mixture or substance containing a

detectable amount of N-phenyl-

N-[1-(2-phenylethyl) -4piperidiny1]

App. 37

propanamide or 10 grams of more of a

mixture or substance containing a

detectable amount of any analogue of N-

phenyl-N-[1-(2-phenylethyl) -4-

piperidinyl] propanamide;

(vii) 100 kilograms or more of a

mixture or substance containing a

detectable amount of marihuana, or

100 or more marihuana plants

regardless of weight; or

(viii) 10 grams or more of

methamphetamine, its salts, isomers, and

salts of its isomers or 100 grams or more

of a mixture or substance containing a

detectable amount of methamphetamine, its

salts, isomers, or salts of its isomers;

such persons shall be sentenced to a term

of imprisonment which may not be less than

5 years and not more than 40 years and if

death or serious bodily injury results

from the use of such substance shall be

not less than 20 years or more than life,

App. 38

i tit

a fine not to exceed the greater of that

authorized in accordance with the

provisions of Title 18, or $2,000,000 if

the defendant is an individual or

$5,000,000 if the defendant is other than

an individual, or bot’. If any person

commits such a violation after one or more

prior convictions for an offense

punishable under this paragraph, or for a

felony under any other provision of this

subchapter or subchapter II of this

chapter or other law of a State, the

United States, or a foreign country

relating to narcotic drugs, marihuana, or

depressant or stimulant substances, have

become final, such person shall be

sentenced to a term of imprisonment which

may not be less than 10 years and not more

than life imprisonment and if death or

serious bodily injury results from the use

of such substance shall be sentenced to

life imprisonment, a fine not to exceed

App. 39

the greater of twice that authorized in

accordance with the provisions of Title

18, or $4,000,000 if the defendant is an

individual or $10,000,000 if the defendant

is other than an individual, or both. Any

sentence imposed under this subparagraph

shall, in the absence of such a prior

conviction, include a term of supervised

release of at least 4 years in addition to

such term of imprisonment and shall, if

there was such a prior conviction, include

a term of supervised release of at least 8

years in addition to such term of

imprisonment. Notwithstanding any other

provision of law, the court shall not

place on probation or suspend the sentence

of any person sentenced under this

subparagraph shall be eligible for parole

during the term of imprisonment imposed

therein.

substance in schedule I or II except as

App. 40

provided in subparagraphs (A), (B),

and (D), such person shall be sentenced

to a term of imprisonment of not more than

20 years and if death or serious bodily

injury results from the use of such

substance shall be sentenced to a term of

imprisonment of not less than twenty years

Or more than life, a fine not to exceed

the greater of that authorized in

accordance with the provisions of Title

18, or $1,000,000 if the defendant is an

individual or $5,000,000 if the defendant

is other than an individual, or both. If

any person commits such a violation after

one or more prior conviction for an

offense punishable under this paragraph,

or for a felony under any other provision

of this subchapter or subchapter II of

this chapter or other law of a State, the

United States or a foreign country

relating to narcotic drugs, marihuana, or

depressant or stimulant substances, have

App. 41

become final, such person shall be

sentenced to a term of imprisonment

of not more than 30 years and if death or

serious bodily injury results from the use

of such substance shall be sentenced to

life imprisonment, a fine not to exceed

the greater of twice that authorized in

accordance with the provisions of Title

18, or $2,000,000 if the defendant is an

individual or $10,000,000 if the defendant

is other than an individual, or both. Any

sentence imposing a term of imprisonment

under this paragraph shall, in the absence

of such a prior conviction, impose a term

of supervised release of at least 6 years

in addition to such term of imprisonment.

Notwithstanding any other provision of

law, the court shall not place on

probation or suspend the sentence of any

person sentenced under the provisions of

this subparagraph which provide for a

mandatory term of imprisonment if death or

App. 42

serious bodily injury results, nor shall a

person so sentenced be eligible for parole

during the term of such a sentence.

(D) In the case of less than 50

kilograms of marihuana, except in the case

of or more marihuana plants regardless of

weight, 10 kilograms of hashish, or one

kilogram of hashish oil or in the case of

any controlled substance in schedule III,

such person shall, except as provided in

paragraphs (4) and (5) of this subsection,

be sentenced to a term of imprisonment of

not more than 5 years, a fine not to

exceed the greater of that authorized in

accordance with the provisions of Title

18, or $250,000 if the defendant is an

individual or $1,000,000 if the defendant

is other than an individual, or both. If

any person commits such a violation after

one or more prior conviction of him for

an offense punishable under this

paragraph, or for a felony under any other

App. 43

provision of this subchapter or subchapter

II of this chapter or other law of a

State, the United States, or a foreign

country relating to narcotic drugs,

marihuana, or depressant or stimulant

substances, have become final, such person

shall be sentenced to a term of

imprisonment of not more than 10 years, a

fine not to exceed the greater of twice

that authorized in accordance with the

provisions of Title 18, or $500,000 if the

defendant is an individual or $2,000,000

if the defendant is other than an

individual, or both. Any sentence

imposing a term of imprisonment under

this paragraph shall, in the absence

of such a prior conviction, impose a

term of supervised release of at least

2 years in addition to such a term of

imprisonment and shall, if there was

such a prior conviction, impose a term of

supervised release of at least 4 years in

App. 44

addition to such term of imprisonment.

(2) In the case of a controlled

substance in schedule IV, such person

shall be sentenced to a term of

imprisonment of not more than 3 years, a

fine not to exceed the greater of that

authorized in accordance with the

provisions of Title 18, or $250,000 if

the defendant is an individual or

$1,000,000 if the defendant is other

than an individual, or both. If any

person commits such a violation after one

Or more prior convictions of him for an

offense punishable under this paragraph,

or for a felony under any other provision

of this subchapter or subchapter II of

this chapter or other law of a State, the

United States, or a foreign country

relating to narcotic drugs, marihuana, or

depecnennt or stimulant substances, have

become final, such person shall be

sentenced to a term of imprisonment of not

App. 45

more than 6 years, a fine not to exceed

the greater of twice that authorized in

accordance with the provisions of Title

18, or $500,000 if the defendant is an

individual or $2,000,000 if the defendant

is other than an individual, or both. Any

sentence imposing a term of imprisonment

under this paragraph shall, in the absence

of such a prior conviction, impose a term

of supervised release of at least one year

in addition to such term of imprisonment

and shall, if there was such a prior

conviction, impose a term of supervised

release of at least 2 years in addition

to such term of imprisonment.

(3) In the case of a controlled

substance in schedule V, such person shall

be sentenced to a term of imprisonment of

not more than one year, a fine not to

exceed the greater of that authorized in

accordance with the provision of Title 18,

or $100,000 if the defendant is an

App. 46

individual or $250,000 if the defendant is

other than an individual, or both. If any

person commits such a violation after one

or more convictions of him for an offense

punishable under this paragraph, or for a

crime under any other provision of this

chapter or subchapter II of this chapter

or other law of a State, the United

States, or a foreign country relating to

narcotic drugs, marihuana, or depressant

or stimulant substances, have become

final, such person shall be sentenced to a

term of imprisonment of not more than 2

years, a fine not to exceed the greater of

twice that authorized in accordance with

the provisions of Title 18, or $200,000

if the defendant is an individual or

$500,000 if the defendant is other than

an individual, or both.

(4) Notwithstanding paragraph

(1) (D) of this subsection any person who

violated subsection (a) of this section

App. 47

by distributing a small amount of

marihuana for no remuneration shall be

treated as provided in section 844 of this

title and section 3607 of Title 18.

(5) Any person who violated

subsection (a) of this section by

cultivating a controlled substance on

Federal property shall be imprisoned as

provided in this subsection and shall be

fined any amount not to exceed--

(A) the amount authorized in

accordance with this section;

(B) the amount authorized in

accordance with the provisions of

Title 18;

an individual; or

(D) $1,000,000 if the defendant

is other than an individual;

or both

(6) Any person who violated

App. 48

, ae ow i. Se

subsection (a) of this section, or

attempts to do so, and knowingly or

intentionally used a poison, chemical,

Or other hazardous substance on Federal

land, and,by such use--

(A) creates a serious hazard to

humans, wildlife, or domestic animals.

(B) degrades or harms the

environment or natural resources, or

stream, river, or body of water,

shall be fined in accordance with Title

18, or imprisoned not more than five

years, or both.

App. 49

Title 21 U.S.C. Section 841

Prohibited acts A

(a) except as authorized by this sub-

chapter, it shall be unlawful for any

person knowingly or intentionally -

(1) to manufacture, distribute,

or dispense or possess with intent to

manufacture, distribute, or dispense

a controlled substance; or

(2) to create, distribute, or

dispense, or possess with intent to

distribute or dispense, a counterfeit

substance.

Title 21 U.S.C., Section 960(b)(1)(A)

(b) Penalties

(1) In the case of a violation

of subsection (a) of this section

involving--

(A) 1 kilogram or more of a

mixture of substance containing a detect-

able amount of heroin;

(B) 5 kilograms or more of

App. 50

a mixture or substance containing a

detectable amount of--

(i) coca leaves, except

coca leaves and extracts of coca leaves

from which cocaines, ecgonine, and deri-

vatives of ecgonine or their sales have

been removed;

(ii) cocaine, its salts,

optival and geometric isomers, and salts

or isomers;

(iii) ecgonine, its deriva-

tives, their salts, isomers, and salts of

isomers;

(iv) any compound, mixture,

or preparation which contains any quantity

of any of the substances referred to in

Clauses (i) through (iii).

Title 28 U.S.C., Section 991

United States Sentencing Commission;

establishment and purposes

(a) There is established as an inde-

pendent commission in the judicial branch

App. 51

of the United States a United States Sen-

tencing Commission which shall consist of

seven voting members and one nonvoting

member. The President, after consultation

with representatives of judges, prosecut-

ing attorneys, defense attorneys, law

enforcement officials, senior citizens,

victims of crime, and others interested in

the criminal justice process, shall

appoint the voting members of the Commis-

sion, by and with the advice and consent

of the Senate, as the Chairman. At least

three of the members shall be Federal

judges selected after considering a list

of six judges recommended to the President

by the Judicial Conference of the United

States. Not more than four of the members

of the Commission shall be members of the

same political party. The Attorney

General, or his designee, shall be an ex

officio, nonvoting member of the Commis-

sion. The Chairman and members of the

App. 52

Commission shall be subject to removal

from the Commission by the President only

for neglect of duty or malfeasance in

office or for any other good cause shown.

(b) The purposes of the United

States Sentencing Commission are to--

(1) establish sentencing policies

and practices of the Federal criminal

justice system that--

(A) assure the meeting of the

purposes of sentencing as set forth in

section 3553(a)(2) of title 18, United

States Code [18 USCS Section 3553(a)(2)];

(B) provide certainty and fair-

ness in meeting the purposes of sentenc-

ing, avoiding unwarranted sentencing dis-

parities among defendants with similar

records who have been found guilty of

similar criminal conduct while maintain-

ing sufficient flexibility to sermit in-

dividualized sentences when warranted by

mitigating or aggravating factors not

App. 53

taken into account in the establishment of

general sentencing practices; and

practicable, advancement in knowledge of

human behavior as it relates to the crim-

inal justice process; and

(2) develop means of measuring the

degree to which the sentencing, penal, and

correctional practices are effective in

meeting the purposes of sentencing as set

forth in section 3553(a)(2) of title 18,

United States Code.

FEDERAL SENTENCING GUIDELINES

Part A-Introduction, p.1.12

5. A Concluding Note

The Commission emphasizes that

its approach in this initial set of guide- —

lines is one of caution. It has examined

the many hundreds of criminal statutes in

the United States Code. It has begun with

those that are the basis for a significant

number of prosecutions. It has sought to

App. 54

— ee a” | | Tee eee eee ee "ate sy. @ cane ee A Tt ee ff a ss.” e

place them in a rational order. It has

developed additional distinctions relevant

to the application of these provisions,

and it has applied sentencing ranges to

each resuiting category. In doing so, it

has relied upon estimates of existing sen-

tencing practices as revealed by its own

statistical analyses, based on summary re-

ports of some 40,000 convictions, a sample

of 10,000 augmented presentence reports,

the parole guidelines and policy judg-

ments.

| The Commission recognizes that some

will criticize this approach as overly

cautious, as representing too little a

departure from existing practice. Yet, it

will cure wide disparity. The Commission

is a permanent body that can amend the

guidelines each year. Although the data

available to it, like all data, are imper-

fect, experience with these guidelines

will lead to additional information and

App. 55

provide a firm empirical basis for re-

vision.

Finally, the guidelines will apply to

approximately 90 percent of all cases in

the federal courts. Because of time con-

straints and the nonexistence of statisti-

cal information, some of fenses that occur

infrequently are not considered in this

initial set of guidelines. They will,

however, be addressed in the near future.

Their exclusion from this initial submis-

sion does not reflect any judgment about

their seriousness. The Commission has

also deferred promulgation of guidelines

pertaining to fines, probation and other

Sanctions for organizational defendants,

with the exception antitrust violations.

The Commission also expects to address

this area in the near future.

Part D-Offenses Involving Drugs, p. 2.37

1. Unlawful Manufacturing, Import-

ing, Exporting, Trafficking, Or

App. 56

Possession; Continuing Criminal Enterprise

Section 2Dl.1 Unlawful Manufacturing,

Importing, Exporting or

Trafficking (Including

Possession with Intent

to Commit these Offenses)

(a) Base Offense Level:

(1) 43, for an offense that re-

sults in death or serious

bodily injury with a prior

conviction for a similar

drug offense; or

(2) 38, for an offense that re-

sults in death or serious

bodily injury and involved

controlled substances (ex-

cept Schedule III, IV and V

controlled substances and

less than: (A) fifty kilo-

grams of marihuana, (B) ten

kilograms of hashish, and

App. 57

(3)

Oil); or

For any other offense, the

base offense level is the

level specified in the Drug

Quantity Table below.

(b) Specific Offense Characteristic

(1)

If a firearm or other

dangerous weapon was pos-

sessed during commission of

the offense, increase by 2

levels.

Part D-Drug Quantity Table, Commentary,

and Drug Equivalency Table, p. 2.38-2.42

DRUG QUANTITY TABLE

Controlled Substance Base Offense Level

II Stimulants,

Cocaine Base,

and Quantity

10 KG Heroin or equiva- Level 36

lent Schedule I or II

Opiates, 50 KG Cocaine or

equivalent Schedule I or

500 G

10 KG PCP or

App. 58

1 KG Pure PCP, 100 G LSD or

equivalent Schedule I or II

Hallucinogens, 4 KG Fentanyl

or 1 KG Fentanyl Analogue,

10,000 KG Marihuana, 100,000

Marihuana Plants, 2000 KG

Hashish, 200 KG Hashish Oil

(or more of any of the above)

3-9.9 KG Heroin or equivalent

Schedule I or II Opiates,

15-49.9 KG Cocaine or equiva-

lent Schedule I or II Stimu-

lants, 150-499 G Cocaine Base,

3-9.9 KG PCP or 300-999 G

Pure PCP, 30-99 G LSD or

equivalent Schedule I or II

Hallucinogens, 1.2-3.9 KG

Fentanyl or 300-999 G Fentanyl

Analogue, 3000-9999 KG Mari-

huana 30,000-99,999 Marihuana

Plants, 600-1999 KG Hashish,

60-199 KG Hashish Oil

App. 59

Level 34

1-2.9 KG Heroin or equivalent Level 32**

Schedule I or II Opiates, 5-

14.9 KG Cocaine or equivalent

Schedule I or II Stimulants,

50-149 G Cocaine Base, 1-2.9

KG PCP or 100-299 G Pure PCP,

10-29 G LSD or equivalent

Schedule I or II Hallucinogens,

4-1.1 KG Fentanyl or 100-299 G

Fentanyl Analogue, 1000-2999 KG

Marihuana, 10,000-29,999 Mari-

huana Plants, 200-599 KG Hashish

20-59.9 KG Hashish Oil

700-999 G Heroin or equivalent Level 30

Schedule I or II Stimulants, 35-49

G Cocaine Base, 700-999 G PC} or

70-99 G Pure PCP, 7-9.9 G LSD or

equivalent Schedule I or II Hallu-

cinogens, 280-399 G Fentanyl or

70-99 G Fentanyl Analogue, 700-999

KG Marihuana, 7000-9990 Marihuana

Plants, 140-199 KG Hashish, 14-19.9

App. 60

KG Hashish Oil

400-699 G Heroin or equivalent Level 28

Schedule I or JI Opiates, 2-3.4

KG Cocaine or equivalent Sched-

ule I or II Stimulants, 20-34.9

G Cocaine Base, 400-699 G PCP

or 40-69 G Pure PCP, 4-6.9 G

LSD or equivalent Schedule I

Or II Hallucinogens, 160-279

G Fentanyl or 40-69 G Fentanyl

Analogue, 400-699 KG Marihuana,

4000-6999 Marihuana Plants,

80-139 KG Hashish, 8.0-13.9 KG

Hashish Oil

100-399 G Heroin or equivalent Level 26**

Schedule I or II Opiates, 5-1.9

KG Cocaine or equivalent Sched-

ule I or II Stimulants, 5-19 G

Cocaine Base, 100-399 G PCP or

10-39 G Pure PCP, 1-3.9 G LSD

Or equivalent Schedule I or II

Hallucinogens, 40-159 G Fentanyl

App. 61

or 10-39 G Fentanyl Analogue,

100-399 KG Marihuana, 1000-

3999 Marihuana Plants, 20-79

KG Hashish, 2.0-7.9 KG Hashish

Oil

80-99 Heroin or equivalent Level 24

Schedule I or II Opiates,

400-499 G Cocaine or equiva-

lent Schedule I or II Stimu-

lants, 4-4.9 G Cocaine Base,

80-99 G PCP or 809.9 G Pure

PCP, 800-999 MG LSD or equiva-

lent Schedule I or II Hallucino-~

gens, 32-39 G Fentanyl or 8.9-9

G Fentanyl Analogue, 80-99 KG

Marihuana, 800-999 Marihuana

Plants, 16-19.9 KG Hashish,

1.6-1.9 KG Hashish Oil

60-79 G Heroin or equivalent Level

Schedule I or II Opiates,

300-399 G Cocaine or equiva-

lent Schedule I or II

App. 62

Stimulants, 3-3.9 G. Cocaine

Base, 60-79 G PCP or 6-7.9G

Pure PCP, 600-799 MG LSD or

equivalent Schedule I or II

Hallucinogens, 24-31.9 G Fen-

tanyl or 6-7.9 G Fentanyl

Analogue, 60-79 KG Marihuana,

600-799 Marihuana Plants,

12-15.9 KG Hashish, 1.2-1.5

KG Hashish Oil

40-59 G Heroin or equivalent

Opiates, 200-299 G Cocaine

Or equivalent Schedule I or

II Stimulants, 2-2.9 G Cocaine

Base, 40-59 G PCP or 4-5.9 G

Pure PCP, 400-599 MG LSD or

equivalent Schedule I or II

Hallucinogens, 16-23.9 G

Fentanyl or 4-5.9 G Fentanyl

Analogue, 40-59 KG Marihuana,

400-599 Marihuana Plants, 8-11.9

Level 20

KG Hashish, .8-1.1 KG Hashish Oil,

App. 63

20 KG+ Schedule III or other

Schedule I or II controlled sub-

stances

20-39 G Heroin or equivalent Level 18

Schedule I or II Opiates, 100-

199 G Cocaine or equivalent

Schedule I or II Stimulants,

1-1.9 G Cocaine Base, 20-39 G

PCP or 2-3.9 G Pure PCP, 200-399

MG LSD or equivalent Schedule I

or II Hallucinogens, 8-15.9 G

Fentanyl or 2-3.9 G Fentanyl

Analogue, 20-39 KG Marihuana,

200-399 Marihuana Plants, 5-7.9

KG Hashish, 500-799 G Hashish Oil,

10-19 KG Schedule III or other

Schedule I or II controlled sub-

stances

10-19 G Heroin or equivalent Level 16

Schedule I or II Opiates, 50-99

G Cocaine or equivalent Sched-

ule I or II Stimulants, 500-999

App. 64

Su si

MG Cocaine Base, 10-19.9 G PCP

or 1-1i1.9 G Pure PCP, 100-199

MG LSD or equivalent Schedule

I or II madiweinopenn: 4-7.9

G Fentanyl or 1-1.9 G Fentanyl

Analogue, 10-19 KG Marihuana,

100-199 Marihuana Plants, 24.9

KG Hashish, 200-499 G Hashish Oil,

5-3.9 KG Schedule III or other

Schedule I or II controlled sub-

stances

5-9.9 G Heroin or equivalent Level 14

Schedule I or II Opiates,

25-49 G Cocaine or equivalent

Schedule I or II Stimulants,

250-499 MG Cocaine Base, 5-9.9

G PCP or 500-999 MG Pure PCP,

50-99 MG LSD or equivalent

Schedule I or II Hallucinogens,

2-3.9 G Fentanyl or .5-.9 G

Fentanyl Analogue, 5-9.9 KG

Marihuana, 50-99 Marihuana Plants,

App. 65

1-1.9 KG Hashish, 100-199 G

Hashish Oil, 2.5-4.9 KG Sched-

ule III or other Schedule I or

II controlled substances

Less than the following: Level 12

5 G Heroin or equivalent

Schedule I or II Opiates, 25

G Cocaine or equivalent Sched-

ule I or II Stimulants, 250 MG

Cocaine Base, 5 G PCP or 500

MG Pure PCP, 50 MG LSD or

equivalent Schedule I or II

Hallucinogens, 2 G Fentanyl

or 500 MG Fentanyl Analogue;

2.5-4.9 KG Marihuana, 25-49

Marihuana Plants, 500-999 G

Hashish, 50-99 G Hashish Oil,

1.25-2.4 KG Schedule III or

other Schedule I or II con-

trolled substances, 20 KG+

Schedule IV

App. 66

1-24 KG Marihuana, 10-24 Mari- Level 10

huana Plants, 200-499 G Hashish

Oil, 50-1.24 KG Schedule III or

other Schedule I or II con-

trolled substances 8-19 KG

Schedule IV

250-999 G Marihuana Plants, Level 8

50-199 G Hashish, 10-19 G

Hashish Oil, 125-449 G Sched-

ule III or other Schedule I

or II controlled substances,

2 KG Schedule IV, 20 KG Sched-

ule V

* The scale amounts for all controlled

substances refer to the total weight

of the controlled substances. Con-

sistent with the provisions of the

Anti-Drug Abuse Act, if any mixture

of a compound contains any detectable

amount of a controlled dangerous sub-

stance, the entire amount of the

App. 67

Statutory Provisions: 21 U.S.C. Section

mixture or compound shall be con-

sidered in measuring the quantity.

If a mixture or compound contains a

detectable amount of more than one

controlled substance, the most

serious controlled substance shall

determine the categorization of the

entire quantity.

Statute specifies a mandatory mini-

mum sentence.

COMMENTARY

841, 960.

Application Notes:

"Similar drug offense" as used in Sec-

tion 2Dl.1(a)(1) means a prior con-

viction as described in 21 U.S.C.

Section 841(b) or 962(b).

The statute and guideline also apply

to "counterfeit" substances, which

are defined in 21 U.S.C. Section 802

to mean controlled substances that

App. 68

are freely labeled so as to appear to

have been legitimately manufactured

or distributed.

Definitions of "firearm" and "danger-

ous weapon" are found in the Commen-

tary to Section 1Bl.1 (Application

Instructions). The enhancement for

weapon possession reflects the in-

creased danger of violence when drug

traffickers possess weapons. The

adjustment should be applied if the

weapon was present, unless it is

clearly improbable that the weapon

was connected with the offense. For

example, the enhancement would not be

applied if the defendant, arrested at

his residence, had an unloaded hunt-

ing rifle in the closet. The

enhancement also applies to offenses

that referenced Section 2Dl.1, i.e.,

Section 2D1.2-2D1.4. The adjustment

is to be applied even if several

App. 69

Lo,

counts are involved and the weapon

was present in any of them.

Distribution of "a small amount of

marihuana for no remuneration", 21

U.S.C. Section 841(b)(4), is treated

as simple possession, to which Sec-

tion 2D2.1 applies.

Any reference to a particular con-

trolled substance in these guide-

lines include all salts, isomers,

and all salts of isomers. Any refer-

ence to cocaine includes ecgonine and

coca leaves, except extracts of coca

leaves from which cocaine and ecgo-

nine have been removed.

Where there are muitiple transactions

or multiple drug types, the quanti-

ties of drugs are to be added.

Tables for making the necessary con-

versions are provided below.

Where a mandatory (statutory) minimum

sentence applies, this mandatory

App. 70

i swith bina calle a

a SRS Ber te i. eee res oy

aoe Md at

minimum sentence may be "waived"

and a lower sentence imposed (in-

cluding a sentence below the applic-

able guideline range), as provided

in 28 U.S.C. Section 994(n), by

reason of a defendant's "substan-

tial assistance in the investiga-

tion or prosecution of another

person who has committed an

offense". See Section 5Kl.1

(Substantial Assistance to Auth-

orities).

A Defendant who used special skills

in the commission of the offense may

be subject to an enhancement under

Section 3Bl/3 (Abuse of Position of

Trusts or Use of Special Skill).

Certain professionals often occupy

essential positions in drug traffick-

ing schemes. These professionals in-

Clude doctors, pilots, boat captains,

financiers, bankers, attorneys,

App. 71

chemists, accountants, and others

whose special skill, trade, profes-

sion, or position may be used to sig-

nificantly facilitate the commission

of a drug offense.

Trafficking in controlled substances,

compounds, or mixtures of unusually

high purity may warrant an upward

departure. The purity of the con-

trolled 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 distribu-

tion. 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

App. 72

10.

source of the drugs. As large quan-

tities are normally associated with

high purities, this factor is parti-

cularly relevant where similar quan-

tities are involved. Congress pro-

vided an exception to purity con-

siderations in the case of phencycli-

dine (PCP). 21 U.S.C. Section 841

(b)(1)(A). The legislation desig-

nates amounts of pure PCP and mix-

tures in establishing mandatory

sentence. The first row of the

table illustrates this distinction

as one kilogram of PCP OR 100 grams

of pure PCP. Allowance for higher

sentences based on purity is not

appropriate for PCP.

The Commission has used the sentences

provided in, and equivalences derived

from, the statute (21 U.S.C. Section

841(b)(1)), as the primary basis for

the guideline sentences. The

App. 73

statute, however, provides direction

only for the more common controlled

substances, i.e., heroin, cocaine,

PCP, LSD and marihuana. The Drug

Equivalency Tables set forth below

provide conversion factors for other

substances, which the Drug Quantity

Table refers to as "equivalents" of

these drugs. For example, one gram

of a substance containing metham-

phetamine, a Schedule I stimulant,

is to be treated as the equivalent

of two grams of a substance contain-

ing cocaine in applying the Drug

Quantity Table.

The Drug Equivalency Tables also pro-

vide a means for combining differing

controlled substances to obtain a

single offense level. If all the

drugs are "equivalents" of the same

drug, e.g., stimulants that are

grouped with cocaine, convert them to

App. 74

that drug. In other cases, convert

each of the drugs to either the

heroin or marihuana equivalents,

add the quantities, and look up the

total in the Drug Quantity Table to

obtain the combined offense level.

Use the marihuana equivalents when

the only substances involved are

"Schedule I Marihuana," "Section III

Substances," "Section IV Substances,"

Schedule V Substances" or "Other

Schedule I or II Substances."

Otherwise, use the heroin equiva-

lents.

Note: Because of the statutory

equivalences, the ratios in the

Drug Equivalency Tables do not

necessarily reflect dosages based

on pharmacological equivalents.

Examples:

a. The defendant is convicted of

selling seventy grams of a substance

App. 75

' |

containing PCP (Level 22) and 250

milligrams of a substance containing

LSD (Level 18). Both PCP and LSD

are grouped together in the Drug

Equivalency Tables under the head-

ing "LSD, PCP and Other Schedule I

and II Hallucinogens," which provide

PCP equivalencies. The 250 milli-

grams of LSD is equivalent to

twenty-five grams of PCP. The

total is therefore ninety-five

grams of PCP, for which the Drug

Quantity Table provides an offense

level of 24.

b. The defendant is convicted of

selling 500 grams of marihuana

(Level 8) and five kilograms of

diazepam (Level 8). The diazepam,

a Schedule IV drug, is equivalent to

625 grams of marihuana. The total,

1.125 kilograms of marihuana, has

an offense level of 10 in the Drug

App. 76

Quantity Table.

c. The defendant is convicted of

selling eighty grams of cocaine

(Level 16) and five kilograms of

marihuana (Level 14). The cocaine

is equivalent to sixteen grams of

heroin; the marihuana, to five grams

of heroin. The total equivalent is

twenty-one grams of heroin, which

has an offense level of 18 in the

Drug Quantity Table.

DRUG EQUIVALENCY TABLES

Schedule I or II Opiates

1 gm of Alpha-

Methylfentanyl = 100 gm of heroin

gm of Dextro-

moramine = 0.67 gm of heroin

gm of Dipipanone = 0.35 gm of heroin

gm of 3-Methyl-

fentanyl = 125 gm of heroin

gm of 1-Methy1l-4-phenyl-4

propionoxypiperdine/MPPP =

App. 77

0.7 gm of heroin

1 gm of 1-(2 Phenylethyl)

-4-pheny1l-4-

acetyloxypiperdine/

PEPAP = 0.7 gm of heroin

1 gm of Alphaprodine = 0.1 gm of heroin

1 gm of Fentanyl (N-phenyl-

N-[1-(2 phenylethyl)-4-

piperdinyl] Propana-

mide) = 31.25 gm of heroin

1 gm of Hydromorphine/

Dihydromorphinone = 2.5 gm of heroin

1 gm of Levorphanol = 1.5 gm of heroin

1 gm of Meperidine/

Pethidine = 0.05 om of heroin

1 gm of Methadone = 0.5 gm of heroin

1 gm of 6-Monoacetyl-

morphine = 1 gm of heroin

1 gm of Morphine = 0.5 gm of heroin

1 gm of Oxycodone = 0.5 gm of heroin

1 gm of Oxymorphone = 5 gm of heroin

1 gm of Racemorphan = 0.8 gm of heroin

App. 78

1 gm of Codeine = 0.08 gm of heroin

1 gm of Dextropropoxy-

phene/Propoxyphene-

Bulk = 0.05 gm of heroin

1 gm of Ethylmorphine = 0.165 gm of heroin

1 gm of Hydrocodone/

Dihydrocodeinone = 0.5 gm of heroin

1 gm of Mixed Alkaloids

of Opium/Papaveretum = 0.25 gm of heroin

1 gm of Opium = 0.05 gm of heroin

Cocaine and Other Schedule I and II

Stimulants

1 gm of Cocaine = 0.2 gm of heroin

1 gm of N-Ethylampheta-

mine = 0.4 gm of cocaine/

0.08 gm of heroin

1 gm of Fenethylline = 0.2 gm of cocaine/

0.04 gm of heroin

1 gm of Amphetamine = 1.0 gm of cocaine/

0.2 gm of heroin

1 gm of Dextroampheta-

mine = 1.0 gm of cocaine/

App. 79

0.2 gm of heroin

1 gm of Methampheta-

mine = 2.0 gm of cocaine/

0.4 gm of heroin

1 gm of L-Methamphetamine/

Levomethamphetamine/

L-Desoxyephedrine = 0.2 gm of cocaine/

0.04 gm of heroin

1 gm of Phenmetrazine = 0.4 gm of cocaine/

0.08 gm of heroin

1 gm of Phenylacetone/

P2P (methanphetamine

precursor) = 0.833 gm of cocaine/

0.167 gm of heroin

1 gm of Cocaine Base

("Crack") = 100 gm of cocaine/

20 gm of heroin

Part K-Departures

2. GENERAL PROVISIONS

Section 5K2.0 Grounds for Departure

(Policy Statement)

Under 18 U.S.C. Section 3553(b) the

App. 80

sentencing court may impose a sentence

outside the range established by the

applicable guidelines, if the court finds

"that an aggravating or mitigating cir-

cumstance exists that was not adequately

taken into consideration by the Sentencing

Commission in formulating the guidelines."

Circumstances that may warrant departure

from the guidelines pursuant to this pro-

vision cannot, by their very nature, be

comprehensively listed and analyzed in

advance. The controlling decision as to

whether and to what extent departure is

warranted can only be made by the court at

the time of sentencing. Nonetheless, the

present section seeks to aid the court by

identifying some of the factors that the

Commission has not been able to fully take

into account in formulating precise guide-

lines. Any case may involve factors in

addition to those identified that have not

been given adequate consideration by the

App. 81

Commission. Presence of any such factor

may warrant departure from the guidelines,

under some circumstances, in the discre-

tion of the sentencing judge. Similarly,

the court may depart from the guidelines,

even though the reason for departure is

listed elsewhere in the guidelines (e.gq.,

as an adjustment or specific offense

characteristic), if the court determines

that, in light of unusual circumstances,

the guideline level attached to that

factor is inadequate.

Where the applicable guidelines, spe-

cific offense characteristics and adjust-

ments do take into consideration a factor

listed in this part, departure from the

guideline is warranted only if the factor

is present to a degree substantially in

excess of that which ordinarily is

involved in the offense of conviction.

Thus, disruption of a governmental func-

tion, Section 5K2.7, would have to be

App. 82

quite serious to warrant departure from

the guidelines when the offense of con-

viction is bribery or obstruction of

justice. When the offense of conviction

is theft, however, and when the theft

caused disruption of a governmental func-

tion, departure from the applicable

guideline more readily would be appro-

priate. Similarly, physical injury

would not warrant departure from the

guidelines when the offense of convic-

tion is robbery because the robbery

guideline includes a specific sentence

adjustment based on the extent of any

injury. However, because the robbery

guideline does not deal with injury to

more than one victim, departure would be

warranted if several persons were in-

jured.

Also, a factor may be listed as a

specific offense characteristic under one

guideline but not under all guidelines.

App. 83

OO EEeoO7

Simply because it was not listed does not

mean that there may be circumstances when

that factor would be relevant to sentenc-

ing. For example, the use of a weapon has

been listed as a specific offense char-

acteristic under many guidelines, but not

under immigration violations. Therefore,

if a weapon is a relevant factor to sen-

tencing for an immigration violation, the

court may depart for this reason.

Harms identified as a possible basis

for departure from the guidelines should be

taken into account when they are relevant

to the offense of conviction, within the

limitations set forth in Section 1Bl.3.

Section 5 K2.13 Diminished Capacity

(Policy Statement)

If the defendant committed a non-

violent offense while suffering

from significantly reduced mental

capacity not resulting from volun-

tary use of drugs or other

App. 84

of 18 in the

Drug Quantity Table.

DRUG EQUIVALENCY TABLES

Schedule I or II Opiates

1 gm of Alpha-

Methylfentanyl = 100 gm of heroin

1 gm of Dextro-

moramine = 0.67 gm of heroin

1 gm of Dipipanone = 0.35 gm of heroin

1 gm of 3-Methyl-

fent

App. 85

AMENDMENT V

(Rights of Accused in Criminal

Proceedings)

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offense to be twice

put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just

compensation.

App. 86

AFFIDAVIT

I, Lori Ann Toms, of Lawyers Printing Company,

Inc., attest that the following statement is true and exact

to the best of my knowledge and belief:

On this 7th day of june, 1990, I, Lori

Ann Toms, hereby certify that I filed with

the Clerk’s Office of the United States

Supreme Court the foregoing Petition for

Writ of Certiorari. I further certify

that, in accordance with Rule 29.5(c) of the

rule of the Supreme Court of the United

States, I mailed this same date the required

copies to the opposing counsel listed

below:

Gregory Welsh

United States Attorney

820 U.S. Court House

101 West Lombard Street

Baitimore, Maryland 21202-2692

(301) 539-2940

Counsel for Respondent -

United States of America

Fou (Urn Ao

‘Dori Ann Toms

Lawyers Printing Co., al

701 East Franklin Street

Suite B-115

Richmond, Virginia 23219

(804) 648-3664

STATE OF VIRGINIA )

CITY OF RICHMOND _)

) to-wit:

Lori Ann Toms appeared before me this 7th day of

June, 1990, and attested that the foregoing affidavit is

true and exact to the best of her knowledge and belief.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.