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The Calculation of Drug Weight For Sentencing Purposes in Colorado and In Federal Drug Crime Cases

By Colorado Drug Crimes – Criminal Defense Lawyer – H. Michael Steinberg 

When an offender is convicted in a Colorado Drug Crime case often the total weight of the drug seized is used to calculate the length of the sentence . This total weight calculation is not based on the pure form of the drug but on the entire “mixture or substance containing any detectable amount” of the illegal drug, rather than simply the weight of the illegal drug contained in the mixture or substance. This has an enormouse impact on the final sentence. 

Mandatory minimum sentences are typically the result of either poorly drafted or poorly contemplated statutes. Such laws establish a lack of understanding the realities of drug smuggling, distribution, and use.

An example of the misguided nature of this war on drugs” is demonstrated by laws imposing mandatory minimum sentences that are triggered by the total weight of the entire “mixture or substance containing a detectable amount” of the illegal drug, rather than simply the weight of the illegal drug contained in the mixture or substance.

The courts have had to struggle with the “mixture” language in several states. The language applies to a variety of controlled substances.

Cocaine

Drug smugglers have definitely been “creative” to smuggle mixtures containing cocaine.

In one case, defendants were apprehended at an airport with souvenir statues made out of cocaine mixed with beeswax. The lower court in that case determined the cocaine and beeswax comprising the statues to be a “mixture ” and determined that the entire weight of the souvenirs—the cocaine plus the beeswax—should be counted towards the weight that triggers the mandatory sentence.

In another case a man traveling with two “suitcases,” which were made of a combination of acrylic suitcase material and cocaine bonded together. In imposing a mandatory minimum sentence, the district court properly determined the calculable drug weight to include the entire weight of the suitcase, minus the metal parts.

Cases involving cocaine mixed with cornmeal and cocaine mixed with boric acid have resulted in the weight of the noncontrolled substance being disallowed from the total weight calculated for sentencing. However, cocaine mixed in bottles of wine or liquor has not been calculated on a total-weight of- the-mixture basis.

In some Federal Cases – a rule called ‘the rule of lenity’ has been applied to 21 U.S.C. § 841 “to avoid the absurd and irrational result that occurs by including the weight of a mixture with a controlled substance. The rationale is that the failure to do so would result in divergent and disproportionate sentences, which are contrary to the “uniformity in sentencing” and “just punishment” purposes of the sentencing guidelines and mandatory minimum sentences.

LSD

Lysergic acid diethylamide (LSD) is also a Schedule I controlled substance carrying a mandatory minimum sentencing provision that has engendered considerable debate and disparity in the courts.

A dose of LSD is so small, it has to be sold in combination with a “carrier.”

Some examples of common carriers include small pieces of blotter paper, gelatin capsules, or sugar cubes. When the LSD is combined with a carrier, the actual LSD comprises an extremely small part of the combined drug product’s weight. The weight of the carrier medium and, therefore, the applicable penalty may vary considerably.

In one well known federal case, Chapman v. United States, the United States Supreme Court upheld the prosecution’s contention that the combined weight of the paper and LSD should be used to calculate the sentence. The Supreme Court determined the paper was a “mixture or substance containing a detectable amount of LSD. The weight of the pure LSD in Chapman’s possession was fifty milligrams, but the combined LSD and blotter paper weight was 5.7 grams, enough to trigger a mandatory prison sentence

The weight of 100 doses of LSD on sugar cubes is 227 grams, and on blotter paper only 1.4 grams, while the weight of 100 doses of pure LSD is only 5 milligrams. Even the weight of blotter paper can vary greatly. LSD weighing over one gram requires a five-year sentence, while 10 grams requires a 10-year sentence, irrespective of the total number of doses.

In the Chapman case, the Defendant argued that the weight of the carrier was an arbitrary factor that should be excluded from the sentence calculation, that “mixture or substance” is impermissibly vague, and that due process and constitutional considerations required the exclusion of the carrier-weight.

But the Supreme Court held that the blotter paper used to distribute LSD was a “mixture or substance containing a detectable amount” of the drug. Like Colorado’s law, the statute and the guidelines failed to define “mixture,” so it was sufficient to give the word its ordinary dictionary meaning and they held that it was ‘rational’ for Congress to include the weight of the paper, given the congressional intent to punish large-volume drug operatives and the fact that blotter paper is the “chosen tool of the trade for those trafficking in LSD.”

The statute was held to neither be a violation of due process nor unconstitutionally vague, since”plausible arguments against describing blotter paper impregnated with LSD as a ‘mixture or substance’” were not enough to render the statute vague.

The Inclusion of the Drug’s Mixture or Carrier – Irrational Ignorance

Many thought that including the carrier weight on a substance that is sold by dose, instead of by weight as heroin and cocaine are sold, produced a seemingly irrational and harsh result. Justice Stevens made this point in his dissent to the majority opinion of the Court, “[t]he consequences of the majority’s construction of ( the law – 21 U.S.C. § 8410 are so bizarre that I cannot believe they were intended by Congress.” He went on to say that the most plausible explanation for this sentencing scheme is that Congress simply did not comprehend how LSD is sold.

The Total Quantity of the Substance – a ‘Market’ Approach

Justice Stevens put it well when he said that in this law Congress adopted a ‘market-oriented’ approach to punishing drug trafficking under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence.

Not A Separate Criminal Conviction – The Jury Must Find the Weight of the Drug – Not The Judge

Under § 18-18-405, the jury must make a finding that a defendant possessed – for eample 25 to 450 grams of a schedule II controlled substance. This finding acts a the basis for limiting the trial court’s sentencing discretion; but it is not the basis for a separate substantive conviction. People v. Salcedo, 985 P.2d 7 (Colo.App.1998)(vacating the defendant’s substantive conviction and sentence for possession of 28 grams or more of cocaine), rev’d–on other–grounds, 999 P.2d 833 (Colo.2000).

Thus, the separate judgment of conviction for this “offense” must not be permitted ossessed remains operative insofar as it relates to defendant’s substantive conviction and the resulting limitation of the trial court’s sentencing discretion.

An Arbitrary Standard: The Federal Sentencing Guidelines

(A) Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.

Federal Guideline footnote” mixture or substance” as used in this guideline has the same meaning as in 21 U.S.C. § 841, except as expressly provided. Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used. Examples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from an illicit laboratory used to manufacture a controlled substance. If such material cannot readily be separated from the mixture or substance that appropriately is counted in the Drug Quantity Table, the court may use any reasonable method to approximate the weight of the mixture or substance to be counted


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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