Court Strikes Down Guideline Reform; Rules That LSD Weight Plus Weight of Carrier Used Should Decide Sentence

SENTENCING March 1995

In a setback for reformers and the U.S. Sentencing Commission, a majority of the U.S. Court of Appeals for the Seventh Circuit ruled Feb. 2 that the total weight of LSD and its carrier medium should be used to determine a defendant's eligibility for a mandatory minimum sentence (U.S. v. Neal, No. 94-1773, 1995WL40576 (7th Cir. 1995); 56 CrL 1435).

Meirl Gilbert Neal was convicted of conspiracy to distribute and possession with intent to distribute LSD-laced blotter paper and received a mandatory minimum sentence of 10 years in prison. He appealed on the grounds that the district court erred in calculating his base offense level by including the weight of the blotter paper in determining whether he should receive a mandatory minimum sentence.

The majority decided that the U.S. Sentencing Commission guidelines amendment number 488, which construes each dose of LSD as weighing 0.4 milligrams for the purposes of determining the base offense level, is too lenient in light of Congress' intent in writing mandatory minimums. The Commission, the majority wrote, makes an attempt in the amendment to overturn Congress' decision to employ mandatory minimums based on the weight of any "mixture or substance" containing LSD.

Moreover, the majority ruled that the courts are bound to follow the U.S. Supreme Court's ruling in Chapman v. U.S. (500 U.S. 483 (1991); 49 CrL 2230). In Chapman, the Supreme Court ruled the weight of the carrier medium should be included when determining weight for sentencing purposes.

Three dissenting judges argued that when the Commission wrote amendment number 488 Congress did not respond and thus tacitly approved of the Commission's interpretation of LSD weight. Further, the Commission amendment did not contradict the spirit of either Congress' intent in establishing mandatory minimums or the Supreme Court's ruling in Chapman.