965 F.

2d 1124
60 USLW 2463

UNITED STATES, Appellee,

v.
Jesus M. LOPEZ-GIL, Defendant, Appellant.
No. 90-2059.

United States Court of Appeals,

First Circuit.
Heard Oct. 10, 1991.
Decided Jan. 3, 1992.
Opinion on Rehearing May 12, 1992.

Rachel Brill with whom Aida M. Delgado Colon, Acting Federal Public
Defender, Old San Juan, P.R., was on brief, for defendant, appellant.
Jose A. Quiles with whom Jeanette Mercado-Rios, Asst. U.S. Atty., San
Juan, P.R., and Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., were
on brief, for appellee.
Before CAMPBELL, Circuit Judge, BROWN* and BOWNES, Senior
Circuit Judges.
BOWNES, Senior Circuit Judge.

Appellant Jesus M. Lopez-Gil was convicted by a jury of knowing and

intentional possession, with intent to distribute, approximately 18 kilograms of
cocaine, in violation of 21 U.S.C. 841(a)(1); of knowing and intentional
importation of cocaine into the United States, in violation of 21 U.S.C.
952(a); and of possession of cocaine on board an aircraft without the cocaine
being entered on the cargo manifest or the official supply list, in violation of 21
U.S.C. 955.1 Lopez-Gil appeals his conviction on the ground that there was
insufficient evidence at trial to support a conviction for importation of cocaine.
He appeals his sentence on two grounds: that the court erred in its
determination of the type and quantity of the cocaine in calculating his base
offense level under the sentencing guidelines; and that the court erred in failing
to make a downward adjustment for his role as a courier of the cocaine.

We affirm the conviction but remand for resentencing.

BACKGROUND
3

On November 2, 1989, Lopez-Gil, a Colombian national, arrived at the Luis

Munoz Marin International Airport in San Juan, Puerto Rico aboard Iberia
Flight Number 924. He was en route to Madrid, Spain from Quito, Ecuador.
The flight made two stops, one in Bogota, Columbia and another in San Juan.
Upon routine inspection and interview of the flight's passengers in the in-transit
lounge, 2 Customs Contraband Enforcement Team (CET) officials detained
Lopez-Gil because he appeared nervous and was perspiring when questioned.

During their inspection of the cargo, CET officials opened one of two black
fiberglass suitcases and upon ripping the lining, discovered glue marks and
bulges. CET field tested both suitcases and they reacted positive for cocaine.
Lopez-Gil's name and address were on each suitcase. Claim tags attached to his
plane ticket matched those on the suitcases.

A Drug Enforcement Administration (DEA) chemist, Ivette Maria Vallejo,

tested the suitcases under laboratory conditions and found cocaine secreted
within the fiberglass. She weighed the suitcases without the metal trimming or
metal parts and determined a net weight of approximately 14 kilograms.
Vallejo extracted the controlled substance from the fiberglass and the resin with
chloroform, and then ran methanol and ether through the controlled substance
to clean it for testing. She conducted infrared and mass spectrometer tests on
the controlled substance which tested positive for cocaine. She determined the
net weight of the cocaine to be approximately 2.6 kilograms.

Pursuant to the United States Sentencing Commission, Guidelines Manual

2D1.1 (November 1990) ("Sentencing Guidelines") the district court assigned
Lopez-Gil a base offense level of 40. The court based its calculation on its
determination that the controlled substance was cocaine base and by using the
net weight of the two suitcases and the cocaine substance. The court found that
because Lopez-Gil "acted as a courier and apparently had no proprietary interest
in the cocaine as such, a sentence in the lower end of the guideline range is
warranted." Sent. Tr. p. 14. The court refused to grant him a two-level reduction
for minor involvement. The court sentenced Lopez-Gil to a term of
imprisonment of 292 months and to a term of supervised release of 5 years, as
to each count, to be served concurrently. He now appeals from that judgment
and sentence.

IMPORTATION OF COCAINE

Lopez-Gil asserts that the evidence was insufficient for the jury to convict him
of importing cocaine into the United States, in violation of 21 U.S.C. 952(a).
He contends that because he was in-transit when arrested in San Juan, with his
destination being Spain and not the United States, he cannot be convicted of a
crime requiring the elements of knowledge of and intention to import cocaine
into the United States. Our duty is to determine whether a reasonable jury
could, after hearing all the evidence, conclude that the defendant was guilty of
the specific crime charged beyond a reasonable doubt. United States v.
Piedrahita-Santiago, 931 F.2d 127 (1st Cir.1991). We find that it could.

Lopez-Gil acknowledges that this circuit interprets the crime of importation to

mean that the defendant's intended final destination for the controlled substance
does not have to be the United States. In United States v. Mejia-Lozano, 829
F.2d 268 (1st Cir.1987), we sustained a conviction for importation of cocaine,
in violation of 21 U.S.C. 952(a). The defendant, who was en route to
Switzerland, had disembarked into an in-transit holding area in San Juan. We
found that 21 U.S.C. 952(a) does not require that the accused form the
specific intent to bring drugs into the country--or even that she be aware that
her international flight would stop in the United States. We held that "the
offense was complete the moment defendant, knowingly in possession of
cocaine, landed in this country with the contraband, regardless of her
knowledge of the aircraft's itinerary or the planned terminus of her journey." Id.
at 272. In order to convict the defendant of importing drugs, "[i]t is sufficient
that the defendant knowingly possessed the contraband, and brought it into the
jurisdiction of the United States." Id. at 271. Accord United States v. OrtizAlarcon, 917 F.2d 651, 652 (1st Cir.1990); United States v. Franchi-Forlando,
838 F.2d 585 (1st Cir.1988); United States v. McKenzie, 818 F.2d 115 (1st
Cir.1987). The holding in Mejia-Lozano controls. We affirm Lopez-Gil's
conviction for importing cocaine into the United States.

SENTENCING
1. Weight
9

Lopez-Gil argues that the district court erred in its determination of the weight
of the controlled substance (14 kilograms) for sentencing purposes. The court
included the net weight of the suitcases in its calculation of the defendant's base
offense level of 40. Lopez-Gil contends that the correct weight for calculation
purposes should have been the net weight of the cocaine mixture only (2.6
kilograms). The difference in terms of sentencing between the two calculations
is substantial. Had the court used the 2.6 kilogram weight in calculating the
base offense level under the Sentencing Guidelines, Lopez-Gil would have

received a base offense level of 28, assuming that the substance is cocaine and
not cocaine base as we will discuss next. Sentencing Guidelines 2D1.1(b)(8).
Based on the trial court's findings, the defendant would probably have received
78 months for each count. Using 40 as the base offense level, the court
sentenced the defendant to concurrent sentences of 292 months for each count.
10

In United States v. Mahecha-Onofre, 936 F.2d 623 (1st Cir.1991), we

interpreted the recent Supreme Court holding in Chapman v. United States, --U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), to require that in
determining the weight of the cocaine for sentencing purposes, the weight of
the suitcases should be included. The facts in Mahecha-Onofre are similar to
the ones in the instant case. Mahecha-Onofre was a passenger on Iberia
Airlines Flight 910, which stopped in San Juan on its way from Bogota,
Colombia, to Madrid, Spain. Customs officials found two suitcases emanating a
strong chemical odor and upon conducting a field test on them found that the
suitcases themselves were made of cocaine. Later testing revealed that the
suitcases contained approximately 2.5 kilograms of cocaine bonded chemically
with the acrylic suitcase material. Mahecha-Onofre appealed on the ground,
inter alia, that the court committed a legal error, when, for sentencing purposes,
it counted the total weight of the suitcases, minus all metal parts (about 12
kilograms), instead of the weight of the cocaine itself (about 2.5 kilograms).

11

We held that the court properly included the weight of the suitcases for
sentencing purposes. Our analysis ascertained that "the suitcase/cocaine
'mixture' or 'substance' fits the statutory and Guideline definitions as the
Supreme Court has recently interpreted them in Chapman." Mahecha-Onofre,
936 F.2d at 626. We interpreted Chapman to mean that,

12
Unlike
blotter paper or cutting agents, the suitcase material obviously cannot be
consumed; and the cocaine must be separated from the suitcase material before use.
We do not believe, however, that this fact alone can make a difference to the
outcome, for "ingestion" would not seem to play a critical role in the definition of
"mixture" or "substance."
13

Id.

14

In Chapman, the defendants were convicted of selling sheets of blotter paper

containing LSD, in violation of 21 U.S.C. 841(a). The district court used the
total weight of the paper and LSD together in calculating the sentences under
the statute and the base offense level under the Sentencing Guidelines. The
Supreme Court held that the statute requires the weight of the carrier medium
to be included when determining the appropriate sentencing for trafficking in

LSD. The Court found that "the blotter paper used in this case, and blotter
paper customarily used to distribute LSD, is a 'mixture or substance containing
a detectable amount' of LSD." Chapman, 111 S.Ct. at 1925. The Court
determined that "[n]either the statute nor the Sentencing Guidelines define the
terms 'mixture' and 'substance,' nor do they have any established common law
meaning. Those terms, therefore, must be given their ordinary meaning." Id.
15

The Court reasoned that under the plain meaning of the term mixture, the
blotter paper would be part of the LSD mixture.

16 heroin or cocaine mixed with cutting agents, the LSD cannot be distinguished
Like
from the blotter paper, nor easily separated from it. Like cutting agents used with
other drugs that are ingested, the blotter paper, gel, or sugar cube carrying the LSD
can be and often is ingested with the drug.
17

Id. 111 S.Ct. at 1926. Accounting for the likelihood of progeny with "absurd"
interpretations, the Court differentiated between a carrier medium, like blotter
paper which can be ingested, and containers.

18 term [mixture] does not include LSD in a bottle, or LSD in a car, because the
The
drug is easily distinguished from, and separated from, such a "container." The drug
is clearly not mixed with a glass vial or automobile; nor has the drug chemically
bonded with the vial or car. It may be true that the weights of containers and
packaging materials generally are not included in determining a sentence for drug
distribution, but that is because those items are also clearly not mixed or otherwise
combined with the drug.
19

Id.

20

In elucidating congressional intent, the Court determined that "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." Id. 111 S.Ct. at 1925,
citing H.R.Rep. No. 99-845, pt. 1, pp. 11-12, 17 (1986). The court concluded,

21 measuring the quantity of the drugs according to the "street weight" of the drugs
By
in the diluted form in which they are sold, rather than according to the net weight of
the active component, the statute and the Sentencing Guidelines increase the penalty
for persons who possess large quantities of drugs, regardless of their purity. This is a
rational sentencing scheme.
22

Id. 111 S.Ct. at 1928.

23

We recognize that the Sixth and Eleventh Circuits have interpreted Chapman
differently from this circuit. 3 See United States v. Jennings & Stepp, 945 F.2d
129 (6th Cir.1991), United States v. Rolande-Gabriel, 938 F.2d 1231 (11th
Cir.1991).

24

In Jennings & Stepp, the defendants were convicted of, inter alia, possession
with intent to distribute over 100 grams of methamphetamine, in violation of 21
U.S.C. 841(a)(1). In computing the base offense under the Sentencing
Guidelines the district court weighed the total amount of the mixture in a
crockpot (4 kilograms). The mixture included methamphetamine, along with
unreacted chemicals and by-products, both of which are poisonous if ingested.
The Sixth Circuit adopted Chapman's "market-oriented" approach to punishing
drug trafficking. The court held that the district court erred in including the
poisonous and unusable parts of the mixture for sentencing purposes. Jennings
& Stepp, 945 F.2d at 136-137. The court believed that the legislative intent
underlying the sentencing scheme of both the statute and the Sentencing
Guidelines compelled its conclusion. Id.

25

The Eleventh Circuit, in Rolande-Gabriel, held that the district court erred in
using the weight of unusable non-drug liquid in calculating the base offense
level (241.6 grams) under the Sentencing Guidelines. 938 F.2d at 1237. Like
the Sixth Circuit, the Eleventh Circuit in reaching its conclusion applied the
Chapman standard of usability, consumability, and readiness for wholesale or
retail distribution. The court determined that because the government chemist
easily distinguished the unusable liquid from the drug powder and its cutting
agent, the unusable liquid is similar to the "packaging" material referred to by
the Supreme Court in Chapman. Id. The Eleventh Circuit reasoned that its
holding comported with the Sentencing Guidelines' stated purpose of
sentencing uniformity.4 See Sentencing Guidelines, ch. 1, pt. A, at 1.1-1.4. The
court concluded that to weigh the unusable liquid mixture would result in an
"absurd and glaringly unjust result."5 Id.

26

We recognize that if this case were before the Sixth or Eleventh Circuit today,
the result would be different. We, however, follow First Circuit precedent and
affirm the district court's use of the suitcases' weight in calculating Lopez-Gil's
sentence under the Sentencing Guidelines.

2. Type of Substance**
27
28

We examine next Lopez-Gil's assertion that the district court erred in its
classification of the cocaine substance as cocaine base, instead of cocaine, for
sentencing purposes. In reaching our conclusion, we must determine whether

the substance at issue constitutes cocaine base or cocaine as defined by the

statute and the Sentencing Guidelines. In prior cases interpreting 21 U.S.C.
841(b), we have held that the use of the term "cocaine base" is not
unconstitutionally vague. See, e.g., United States v. Barnes, 890 F.2d 545 (1st
Cir.1989), cert. denied, 494 U.S. 1019, 110 S.Ct. 1326, 108 L.Ed.2d 501
(1990). The issue before us today requires us to determine the correct definition
of cocaine base as a matter of statutory interpretation. This issue is one of first
impression for us. The interpretation of the term "cocaine base" is a legal
question which we review de novo. See United States v. Shaw, 936 F.2d 412,
414 (9th Cir.1991).
29

The trial testimony of the DEA chemist, Vallejo, described the chemical
processes she used to obtain a sample of the controlled substance. She testified
that she found, as a result of the chemical analysis, "cocaine as the base." Trial
Tr. p. 107 (emphasis added). Trial counsel recalled Vallejo during the presentencing hearing, Vallejo testified that the controlled substance was not
crack.

30Miss Vallejo, you were the person that analyzed the narcotic drug found in the
Q
luggage?
A Yes, sir.
31
32And in the report that you submitted at the time of the trial you stated there that it
Q
was cocaine base, is that correct?
A Yes, sir....
33
Q Miss Vallejo, was the cocaine base found in the luggage crack?
34
A No, it was in the state it was received, no. It was not crack.
35
Q Most or some of the analysis made of cocaine base could be crack?
36
A Yes.
37
Q And in this case it was not?
38
A No.
39
THE COURT: It was not crack?
40
THE
41 WITNESS: It was not crack.

42

Trial Tr., Vol. V, p. 5-6. Our analysis proceeds on the basis that the controlled
substance was not crack.

43

In examining the statute and the Sentencing Guidelines, we find that neither
defines the term "cocaine base."6 The Guidelines' drug equivalency table
equates cocaine base with "crack." Sentencing Guidelines, 2D1.1 ("1 gm of
Cocaine Base ('Crack') equals 100 gm of cocaine/20 gm of heroin").

44

One other circuit has addressed the issue of defining the term "cocaine base."
The Ninth Circuit recently concluded that "Congress and the Commission must
have intended 'cocaine base' to include 'crack,' or 'rock cocaine,' which we
understand to mean cocaine that can be smoked, unlike cocaine hydrochloride."
United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991). The Ninth Circuit
examined the legislative history of 21 U.S.C. 841(b). The court found that
Congress when it used the term "cocaine base" meant "cocaine freebase,"
which refers to cocaine that can be smoked. Id. at 416. The court cited to the
following House report:

45

In the summer of 1986, the wave of cocaine abuse epidemic which had been
growing for a decade began to crash upon American cities in the form of
"crack." Crack, the street name for cocaine freebase, a preparation of cocaine
hydrochloride and sodium bicarbonate, can be smoked and consequently
produces intense moments of the cocaine "rush,"....

46

H.R.Rep. No. 99-846, 99th Cong., 2d Sess. 4 (1986) (emphasis added).

47

Both the House and the Senate each had a version of a bill to amend 21 U.S.C.
841(b). The House bill, H.R. 5394, 99th Cong., 2d Sess. 101 (1986),
provided for tougher penalties for "cocaine freebase." The Senate bill, S. 2878,
99th Cong., 2d Sess. 1002, 132 Cong.Rec. S13649 (daily ed. Sept. 25, 1986),
provided penalties for "cocaine base." Congress ultimately enacted the Senate
version. Nothing in the legislative history shows that the Senate version
intended a different meaning for "cocaine base" from the House use of "cocaine
freebase." Rather, the legislative materials demonstrate that Congress, in
passing the legislation, was concerned primarily with the crack epidemic, and it
described crack as cocaine that is smoked rather than snorted. Shaw, 936 F.2d
at 416 (citing to statements made by the legislation's sponsors, Rep. Frank
Annunzio, 132 Cong.Rec. H6544 (daily ed. Sept. 10, 1986), Sen. Chic Hecht,
Id. at S13770 (Sept. 26, 1986)). Our examination of the legislative history
concurs with the findings reached by the Ninth Circuit.

48

We, as other circuits, have addressed this issue indirectly by ruling that the term
"cocaine base" is not unconstitutionally vague. In our discussion of the term, we
have inferred that cocaine base means crack. In United States v. Barnes, the
forensic chemist testified at trial that cocaine base differs from cocaine
hydrochloride in its molecular structure. She said that "cocaine base is
commonly called 'crack' cocaine which is generally smoked." 890 F.2d at 548.
We found that "[c]ocaine hydrochloride is water soluble, formed in crystals or
flakes, and generally snorted by users. Cocaine base is not water soluble,
concentrated in a hard rock-like form, and generally smoked." Id. at 552. We
also found that possession of the substance in question "is specifically what
Congress intended to punish. The chunks seized were in the form of cocaine
known as 'crack,' which was a primary target of the Narcotics Penalties and
Enforcement Act of 1986." Id. at 553. We held in Barnes that because the
substance in issue was not a new form or derivative of cocaine which was not
originally contemplated by Congress, the term "cocaine base" did not violate
the defendant's due process rights. Id. Accord United States v. Thomas, 932
F.2d 1085 (5th Cir.1991); United States v. Pinto, 905 F.2d 47 (4th Cir.1990);
United States v. Levy, 904 F.2d 1026 (6th Cir.1990); United States v. Luster,
896 F.2d 1122 (8th Cir.1990).

49

The government contends that "cocaine base" as used in Barnes and Shaw is not
equated with "crack," but rather includes crack. We find the government's
contention to be unfounded for two reasons. First, both the Barnes and Shaw
courts, along with the other courts cited above, did not distinguish between
cocaine base and crack. While they may not have explicitly held that cocaine
base equals crack, a complete, rather than selective, reading of the opinions
compels the conclusion that that was indeed the courts' meaning.

50

Second, the government has not introduced any evidence of the existence of a
new derivative/form of cocaine base that is separate and distinct from crack, nor
are we aware of any. Our understanding is that there are two forms of cocaine
that people use: one is cocaine, which is generally snorted, and the other is
crack, which is generally smoked. While there exists a wide variety of each
type according to purity, quality, and grade, the cocaine user has the option of
using either cocaine or crack, not a third variation.

51

We conclude that "cocaine base" means "crack" for purposes of 21 U.S.C.

841(b) and the Sentencing Guidelines. The trial evidence shows that the
controlled substance was not crack. We hold, therefore, that the district court
erred in using "cocaine base" as the standard for sentencing the defendant. We
must remand to the district court for a new sentencing determination.

3. Mitigating Role in Sentencing Process

52

Lopez-Gil contends that the trial court erred in refusing to make a downward
adjustment of two points after determining that he acted only as a courier. The
Sentencing Guidelines in section 3B1.2(b) provides for a downward reduction
by two points in the sentencing of a defendant whose role in the offense "makes
him substantially less culpable than the average participant." Id. 3B1.2
(background commentary). A defendant has the burden of proving entitlement
to such a downward adjustment, United States v. Ocasio, 914 F.2d 330, 332
(1st Cir.1990), and can only prevail on appeal by demonstrating that the district
court's determination as to his role in the offense was clearly erroneous. United
States v. Rosado-Sierra, 938 F.2d 1, 2 (1st Cir.1991).

53

We have found that a defendant who is a drug courier is not entitled as of right
to a reduction of the offense level as a minimal or minor participant. United
States v. Paz Uribe, 891 F.2d 396, 399 (1st Cir.1989), cert. denied, 495 U.S.
951, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990) ("even if the court found that Paz
was only a courier, he would not automatically be entitled to a reduction."). The
Sentencing Guidelines do not obligate a court to adjust for mitigating
circumstances but rather permit such an adjustment. See Sentencing Guidelines,
ch. 1, pt. A, 1.5-1.6. The district court, therefore, was within its discretionary
powers in deciding not to reduce Lopez-Gil's base offense level.

54

We affirm the district court's refusal to adjust downward.

55

Affirmed in part, reversed in part and remanded for further sentencing

proceedings.

56

JOHN R. BROWN, Senior Circuit Judge, concurring and dissenting in part.***

57

I concur fully in the court's decision to affirm the conviction. I respectfully

dissent, however, in the court's determination of the controlled substance's
weight and in the finding that the controlled substance was in fact cocaine and
not cocaine base.

A Suitcase Mix or A Cocaine Mix

58

As in this court's earlier decision in Mahecha-Onofre,7 the court reads

Chapman8 to require that the weight of the suitcase material be included as part
of the "mixture" or "substance" for sentencing purposes. I disagree.

59

I am keenly aware that, consistent with the practices of the First Circuit, as a
visiting judge, I am bound the same as a First Circuit judge by the court's prior
decisions. But, as would a judge in active service, I have the privilege, if not the
duty, to point out deficiencies in a prior decision and to encourage en banc
review--a situation in which again the role of a visiting judge is unique in the
sense that he or she is not qualified either to request or cast a full vote for en
banc review, and certainly never participate in the en banc decision to reject the
challenged action. It is in that spirit that my compulsory affirmance translates
into a dissent.

60

Like the Sixth9 and Eleventh10 Circuits, I would interpret Chapman as applying
only to carrier mediums that are usable, consumable, and which make the drug
ready for wholesale or retail distribution. The Supreme Court, in Chapman,
specifically stated:

61
Congress
adopted a market-oriented approach to punish 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 sentence.11
62

Although the Supreme Court probably did not contemplate the astounding facts
found here,12 their intent was sufficiently evident in reasoning that:

63 cannot be distinguished from the blotter paper, nor easily separated from it.
LSD
Like cutting agents used with other drugs that are ingested, the blotter paper, gel or
sugar cube carrying LSD can be and often is ingested with the drug.... The term
["mixture"] does not include LSD in a bottle, or LSD in a car, because the drug is
easily distinguished from, and separated from, such a 'container.'13
64

The suitcases in this case were more like traditional containers than ingestible
carriers. The two suitcases were black in color and made of fiberglass, each
weighing about nine kilograms, or approximately 18 pounds, when empty. The
controlled substance was separated from the suitcase fabric, first, by physically
removing all suitcase attachments resulting in "net weights" of 6.9 and 7.15
kilograms, and, second, via various chemical processes.14

65

The cocaine was not usable as long as it was mixed with the fiberglass suitcase
material. It could not be swallowed, snorted or otherwise absorbed into the
body. Further, the record does not show that there was any likelihood that the
fiberglass and cocaine mixture would be sold or that it was even marketable on
the retail or wholesale cocaine market, either prior to or after the chemical
extraction by DEA Chemist Vallejo. In fact, it is for these very reasons that

Chemist Vallejo first removed the suitcases' metal frames before determining
the "net weight" of the mixture.15 Similarly, all other suitcase materials should
have been separated from the cocaine before weighing the mixture.
66

Because sentences are fixed largely by the weight of the drug sold or used, it
makes no physical or legal sense to permit non-usable carrier mediums to play
such a determining role in denying a person of his liberty. To the contrary, this
is more than a simple matter of chemical solutions and resulting mixtures.
Here, using the weight of the entire fiberglass mixture increased Lopez-Gil's
sentence by more than five years.16 As have the Sixth and Eleventh Circuits, I
would conclude that the total weight of the drug mixture should be counted for
sentencing purposes, only when the total mixture is in usable, distributive form,
i.e., when it is capable of being smoked, inhaled or otherwise swallowed or
consumed.

Cocaine, Cocaine Base & Crack Legal or Chemical Problem

67
68

During the sentencing phase of the trial, DEA Chemist Vallejo identified the
controlled substance as cocaine base. She also testified that the substance "was
not crack." (Sent. Tr. at 5). Finding this testimony contradictory, the court first
characterizes the question of "what is cocaine base" as a legal one, and then
finds as a matter of law that cocaine base equals crack cocaine.

69

Neither the statute, 21 U.S.C. 841(b), nor the Sentencing Guidelines define
the term "cocaine base." Although the majority cites Shaw17 and Barnes18 for
the proposition that cocaine base equals crack, I, like the Government, would
read these cases as merely holding that cocaine base includes crack cocaine.

70

Further, this question was not a legal issue to be decided by a panel of judges,
but rather a fact question for the trial judge. It was up to the trial judge to make
a specific factual finding as to the contents of the drug mixture, whether it be
cocaine or cocaine base. Again, whether Lopez-Gil serves an extra fourteen
years in prison turns on this determination,19 and deserves more than blanket
reliance upon what one or more appellate courts have stated, as Article III
wisdom does not include fine chemical distinctions.

71

Because the trial court failed to make such a finding, and the court finds no
fault with this procedure, I again dissent. I would remand this case to the district
court to determine with such factual information as is available whether the
substance was cocaine or cocaine base and for potential resentencing.

ON PETITION FOR REHEARING

May 12, 1992.

72
PER CURIAM:
73

We make clear at the outset that this Court is divided on the following two
issues crucial to the determination of Lopez-Gil's sentence: 1) as raised by
Judge Brown's dissenting opinion, whether the net weight of the suitcases
should have been used in calculating Lopez-Gil's sentence; and 2) as raised by
the Government's petition for panel rehearing, whether the controlled substance
should have been classified as "cocaine" or "cocaine base" for sentencing
purposes.

1) The Suitcase Issue

74

With respect to issue one, "the suitcase issue," Lopez-Gil failed to request a
rehearing, from either the panel or from the court en banc. Nevertheless, First
Circuit rules permit its Judges or the panel to request a vote on whether to
rehear a decision en banc. Because a majority of the Judges declined to rehear
en banc "the suitcase issue," Judge Brown respectfully dissents. The district
court included the net weight of the suitcases in its calculation of Lopez-Gil's
sentence. Judge Brown is of the conviction that the weight of foreign materials,
such as fiberglass suitcase material, should not be counted for sentencing
purposes unless they are usable and consumable.

2) Cocaine Base or Cocaine?

75
76

On the second issue, the Government filed a Petition for Panel Rehearing,
which the panel now addresses. The sole question on rehearing is whether
Lopez-Gil's sentence should be computed by classifying the controlled
substance as "cocaine" or "cocaine base." We held on appeal that the district
court erred in using cocaine base as the standard for sentencing.2 We GRANT
the Government's Petition for Panel Rehearing and REMAND to the district
court to specifically find whether the controlled substance was in fact cocaine
or cocaine base.

77

Lopez-Gil was convicted by a jury of 1) possession, with intent to distribute, of

approximately 14 kilograms of cocaine; 2) of importation of cocaine into the
United States; and 3) of possession of cocaine on board an aircraft. The district
court sentenced Lopez-Gil under Offense Level 40 to concurrent sentences of
292 months of confinement and five years of supervised release as to each of
the two counts. This sentence was based upon the court's conclusion that the

controlled substance was cocaine base. We modified the sentence on appeal,

holding that the term "cocaine base" means only crack cocaine. Based upon this
legal determination, we found that since the expert testimony at the sentencing
phase showed that the controlled substance clearly was not crack, the substance
should have been classified instead as cocaine and not "cocaine base." Under
our modification, based on our determination that the substance was cocaine,
Lopez-Gil faced concurrent sentences of only 121 months of confinement as to
each count under Offense Level 32. This resulted in a striking 18-year reduction
in Lopez-Gil's sentence.
78

The controversy surrounding the classification of the controlled substance

centers on DEA Chemist Vallejo's testimony at the sentencing phase of the
trial. After performing a chemical analysis, Vallejo testified at trial that she
found "cocaine as the base." During the pre-sentencing hearing, Vallejo also
testified that the cocaine base was not crack:

79Miss Vallejo, you were the person that analyzed the narcotic drug found in the
Q
luggage?
A Yes, sir.
80
81And in the report that you submitted at the time of the trial you stated there that it
Q
was cocaine base, is that correct?
A Yes....
82
Q Miss Vallejo, was the cocaine base found in the luggage crack?
83
A No, it was in the state it was received, no. It was not crack.
84
Q Most or some of the analysis made of cocaine base could be crack?
85
A Yes.
86
Q And in this case it was not?
87
A No.
88
The Court: It was not crack?
89
A It was not crack.
90
91

We reiterate that neither the statute, 21 U.S.C. 841(b), nor the Sentencing
Guidelines define the term "cocaine base." The legislative history of the statute

shows that Congress meant "cocaine freebase" when using the term "cocaine
base." Although we continue to believe that Congress indeed was concerned
primarily with the crack epidemic in enacting the legislation, the Government
now persuades us that it does not necessarily follow that the term "cocaine
base" includes only crack cocaine.
92

Judges have much to learn about various drug forms and their new
technologies, which are most certainly developing everyday. The fact that we
are not aware of the existence of a new derivative form of cocaine base that is
separate and distinct from crack, does not mean that there is no such substance.
District judges are forced to rely on the expert testimony of chemists who
specialize in drug analysis in order to determine the identity of a substance.

93

In this instance, Chemist Vallejo clearly testified that although the substance
was not crack, it was indeed cocaine base. This convincing testimony formed
the basis for the district court's sentence. Because the court did not specifically
find that the controlled substance was cocaine base, however, we remand this
issue to the district court to make the appropriate finding.

94

Accordingly, (1) we GRANT the Government's Petition for Panel

Reconsideration only with respect to Part 2 published at 1129; (2)
WITHDRAW Part 2 of this opinion; and (3) REMAND this issue to the district
court for further findings.3

95

JOHN R. BROWN, Senior Circuit Judge, dissenting:

96

I strongly dissent to the full court's refusal to rehear en banc "the suitcase
issue." Although there now may be some sentiment in this court that the
precedent-setting Mahecha-Onofre4 was incorrectly decided, the votes needed
for the court to rehear this issue en banc are still lacking.

97

In my small voice, I again dissent to the failure of the First Circuit to vote to
overturn its prior holding and follow the lead of the Sixth and Eleventh
Circuits.5 Carrier mediums that can not be digested, inhaled or otherwise
consumed, but still significantly increase the weight of the controlled
substance, have no place in drastically affecting the number of years a person
must serve in prison.

98

In this case, if upon remand the trial court finds that the substance was cocaine
base, Lopez-Gil will spend approximately five 6 more years in prison as a result
of including the weight of the unusable, non-consumable suitcase material.

Similarly, if the trial court finds that the substance was cocaine, Lopez-Gil will
face about three and one-half7 more years of imprisonment if the weight of the
suitcase is included.
99

Unfortunately, First Circuit Judges passively continue to accept the validity of

Mahecha-Onofre, while district courts continue to impose longer confinements
for which no real right of appeal exists since, as here, the court will find its
opinion bound by Mahecha-Onofre. No longer should the court sit idly by
when three, five or possibly many more years of a man's liberty are at stake on
the basis of a decision which is so materially and legally unsupported.
BOWNES, Senior Circuit Judge, dissenting:

100 I continue to adhere to the reasoning I set forth in detail in the original panel
opinion on the "crack" issue.

Of the Fifth Circuit, sitting by designation

The pertinent portions of the statute read as follows:

[I]t 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;....
21 U.S.C. 841(a)(1).
It shall be unlawful to import into the customs territory of the United States
from any place outside thereof ... any controlled substance....
21 U.S.C. 952(a).
It shall be unlawful for any person to bring or possess on board any ... aircraft
... arriving in or departing from the United States or the customs territory of the
United States, a controlled substance ... unless such substance or drug is a part
of the cargo entered in the manifest or part of the official supplies of the ...
aircraft.
21 U.S.C. 955.

The in-transit lounge is an enclosed area at the airport where international

passengers en route to a destination other than the United States are ushered

directly from the plane and held there during the customs check
3

In a pre-Chapman decision, the Fourth Circuit held that the combined weight of
the uncut LSD and carrier medium of blotter paper could be used to determine
the base offense level under the Sentencing Guidelines. United States v. Daly,
883 F.2d 313 (4th Cir.1989). The Eighth Circuit held, prior to Chapman, that
the trial court should have used the net weight (weight of mixture without the
packaging) instead of the gross weight (weight of mixture with the packaging)
for sentencing purposes. United States v. Luster, 896 F.2d 1122 (8th Cir.1990)

While the commission commentary to section 2D1.1 provides that the term
"mixture" has the same meaning as it does in 21 U.S.C. 841, which does not
differentiate between various types of mixtures, the court found that a strict
adherence to the committee's commentary would include all mixtures but result
in "disparate and irrational sentences." United States v. Rolande-Gabriel, 938
F.2d 1231, 1235 (11th Cir.1991). Therefore, the Eleventh Circuit reads
"mixture" in conjunction with the stated purposes behind the Sentencing
Guidelines; thereby weighing only "usable or consumable drug mixture." Id

The court reasoned,

Although it is logical to base sentences upon the gross weight of usable
mixtures, it is fundamentally absurd to give an individual a more severe
sentence for a mixture which is unusable and not ready for retail or wholesale
distribution while persons with usable mixtures would receive far less severe
sentences. For example, Rolande-Gabriel's sentence was based on a weight of
241.6 grams, despite the fact that only 72 grams of the mixture were usable;
however, a defendant possessing a usable mixture of cocaine mixed with a
cutting agent weighing 75 grams would receive a significantly smaller sentence
than Rolande-Gabriel. This is manifestly unjust and defeats the Sentencing
Guidelines' stated policy of sentencing uniformity and proportionality.
Rolande-Gabriel, 938 F.2d at 1237.

**

Part 2 of this opinion was withdrawn on ground of petition for panel

reconsideration, see p. 1133

We construe the statute and the Sentencing Guidelines to be consistent with

each other in their use of the term "cocaine base." The Sentencing Commission
has explained that it "used the sentences provided in, and equivalences derived
from, the statute (21 U.S.C. 841(b)(1)), as the primary basis for the guideline
sentences." Sentencing Guidelines, 2D1.1, comment. (n. 10). Thus, we
assume that the Commission intended the terms they used to have the same
meanings as the terms Congress used

*** Judge Brown's dissent was withdrawn in part on grant of petition for panel
reconsideration, see footnote 3 p. 1128
7

United States v. Mahecha-Onofre, 936 F.2d 623 (1st Cir.1991)

Chapman v. United States, --- U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d 524
(1991)

See United States v. Jennings & Stepp, 945 F.2d 129 (6th Cir.1991) (adopting
the "market-oriented" approach, the court held that the poisonous and other
unusable parts of the methamphetamine mixture should not have been counted
for sentencing purposes)

10

See United States v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991) (the court
held that the weight of the unusable non-drug liquid in which the cocaine was
found should not have been used in calculating the base offense level)

11

Id. 111 S.Ct. at 1926 (emphasis added)

12

The court even recognized that "[w]hile hypothetical cases can be imagined
involving heavy carriers and very little LSD, those cases are of no import in
considering a claim by persons such as petitioners, who used a standard LSD
carrier." Id. 111 S.Ct. at 1928

13

Id. 111 S.Ct. at 1926

14

Specifically, DEA Chemist Vallejo testified that in order to separate the

controlled substance from the fiberglass suitcase material, she performed the
following procedure on the two suitcases:
1) Vallejo weighed the suitcases, including their metal frames, handles, wheels
and any labels affixed to the suitcase, and arrived at "gross weights" of 8.75 and
9 kilograms;
2) Vallejo disassembled the suitcases, by removing the frames, wheels, handles,
and rubber linings, and peeling off any labels. The remaining suitcase bodies
were weighed and calculated to have "net weights" of 6.9 and 7.15 kilograms,
totalling 14.05 kilograms. Vallejo next cut the suitcase sides into several
sections, creating a kind of "sawdust;"
3) After collecting the "sawdust" mixture, Vallejo extracted the controlled
substance from the mixture by combining it with a chloroform solvent, which
separated most of the fiberglass resin from the controlled substance. She then
used methanol and ether to clean and crystallize the substance. After several

tests using the gas chromatograph and mass spectrometer, Vallejo arrived at
respective purities of 28% and 9.3% for the mixture. Multiplying the "net
weights" of 6.9 and 7.15 kilograms by 28% and 9.3%, respectively, Vallejo
arrived at a second "net weight" for each suitcase, this time representing the
weight of the pure cocaine: 1932 grams for the first suitcase and 665 grams for
the second suitcase, totalling 2597 grams.
See Trial Tr. at 104-14.
15

Under Mahecha-Onofre, see n. 1, the resulting mix of cocaine and fiberglass

material was not usable in any way as a narcotic. One wonders why, out of
some notion of fairness, the weight of the metal frames was excluded in
calculating "net weight." The only distinguishing factor between the fiberglass
and the metal seems to be that the metal is non-chewable

16

The Sentencing Table used to compute criminal sentences has two primary
components: (i) the Offense Level (1-43) forms the vertical axis and is
determined by the kind and weight of controlled substance; and (ii) the
Criminal History Category forms the horizontal axis. Points are attributed in
this latter category based upon length and number of prior sentences, as well as
factors such as whether the offense was committed while the defendant was on
probation or escape status. The intersection of the Offense Level and Criminal
History Category is the Guideline Range in months of imprisonment
In this case, Lopez-Gil was sentenced to concurrent sentences of 292 months
for each count under Offense Level 40, based upon the trial court's conclusion
that the controlled substance was cocaine base and that its total weight was
14.050 kilograms. Had the trial court used only the weight of the cocaine, a
total of 2597 grams, as opposed to the entire mixture, Lopez-Gil would have
been sentenced under Offense Level 38 to concurrent sentences of only 235
months, a difference of about five years.

17

United States v. Shaw, 936 F.2d 412 (9th Cir.1991)

18

United States v. Barnes, 890 F.2d 545 (1st Cir.1989)

19

Using a total weight of 14.050 kilograms, the weight that the majority accepts
as correct, Lopez-Gil faces concurrent sentences of 292 months under Offense
Level 40, assuming the substance is cocaine base. If the substance can be
categorized as cocaine, however, Lopez-Gil will be sentenced for only 121
months under Offense Level 32
Because Judge Brown sits only by designation, he, of course, is without power
to either request or cast a vote for en banc review, and clearly could never

participate in the en banc decision.

2 U.S. v. Lopez-Gil, 965 F.2d 1124 (1st Cir.1992).
3

Because Judge Brown concurs fully in the decision to grant the Government's
Petition for Panel Rehearing and in its determination that this issue should be
remanded in order for the district court to find whether the substance was
cocaine or cocaine base, his dissent solely with respect to this issue is also
WITHDRAWN

In United States v. Mahecha-Onofre, 936 F.2d 623 (1st Cir.1991), we

interpreted Chapman v. United States, --- U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d
524 (1991), to require that the weight of the suitcase material be included for
sentencing purposes

Both the Sixth and Eleventh Circuits have held that the unusable parts of the
drug mixture should not be counted in determining a defendant's sentence.
United States v. Jennings & Stepp, 945 F.2d 129 (6th Cir.1991); United States
v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir.1991)

Given a weight of 14.05 kilograms of cocaine base, which includes the suitcase
material, the corresponding Offense Level is 40 resulting in a minimum
sentence of 292 months. If, however, only the weight of the cocaine base is
used, 2597 grams, the Offense Level is 38 resulting in a minimum sentence of
235 months, a difference of about five years

A weight of 14.05 kilograms of cocaine corresponds to a minimum sentence of

121 months, while a weight of 2597 grams of cocaine results in a minimum
sentence of 78 months, roughly a difference of three and one-half years