Solvent Is Not LSD "Carrier Medium" For Sentencing Purposes

SENTENCING October 1995

In only the second case of its kind, the Fourth Circuit U.S. Court of Appeals ruled on July 13 that the solvent in liquid LSD should not be considered a carrier medium for sentencing purposes under the U.S. Sentencing Guidelines (U.S. v. Turner, No. 94-5415, 59 F.3d 481, (4th Cir. 1995)).

There have been a number of cases addressing an ambiguity about LSD carrier medium weights between the Guidelines and the statutory mandatory sentences (see "Supreme Court Agrees to Hear LSD Carrier Medium Case," NewsBriefs, September 1995). The statute prohibits distribution of a "mixture or substance containing a detectable amount" of LSD. The Supreme Court in Chapman v. U.S., 500 U.S. 453, (1991), determined that "mixture or substance" included blotter paper containing the drug.

In 1993, the Sentencing Guidelines were amended [Amendment 488] to assign an arbitrary 0.4 milligram weight to each dose of LSD in a case in which the number of doses was clear regardless of the actual weight of the carrier medium. The amendment makes only one mention of liquid LSD:

In the case of liquid LSD (LSD that has not been placed on a carrier medium), using the weight of the LSD alone to calculate the offense level may not adequately reflect the seriousness of the offense. In such a case, an upward departure may be warranted.

The defendant argued that the court should find out how many doses of LSD were dissolved in the liquid, and then multiply that number by 0.4 milligrams. The Court of Appeals ruled that the solvent was not a carrier medium, so the Guideline would not apply.

The court remanded the case back to district court to determine the actual weight of the LSD in the liquid or the number of doses and either multiply that number by 0.4 milligrams as provided by Amendment 488 or by 0.05, what it called "the weight of actual LSD per dose." Remarkably, the Court of Appeals was quite comfortable with a calculation of the weight using the actual weight per dose of 0.05 grams, provided that the sentence does not fall below the statutory minimum. Significantly, the Court of Appeals did not instruct the district court on what material (i.e., the solvent) ought to be included in finding if the LSD mixture or substance weighed more than the trigger for a mandatory minimum sentence.