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UNITED STATES v. HEALY

January 18, 1990

UNITED STATES OF AMERICA
v.
MICHAEL A. HEALY


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 Defendant Michael Healy was convicted of one count of unlawful distribution of LSD for selling 5000 "hits" of LSD impregnated in blotter paper to an undercover police officer. His sentencing has raised two issues involving interpretation of the Federal Sentencing Guidelines. The first concerns the LSD weight to be used in fixing the Guidelines sentence range. The second concerns whether the defendant's alleged reduced mental capacity justifies departure from the Guidelines range. The first issue has been fully presented and is ripe for decision.

 Tracking the language of the federal drug prohibition statute at 21 U.S.C. § 841, the Federal Sentencing Guidelines normally fix sentences for LSD distribution based on the weight not of the pure LSD itself but of the "mixture or substance" containing LSD at issue in each case. *fn1"

 In its pure form, LSD tartrate is a water-soluble crystalline material. The LSD sold by Healy was in the form of liquid impregnated into 5000 squares of blotter paper. The user is expected to place a square in the mouth and eventually swallow the paper along with the drug it carries.

 The issue before the Court is whether or not impregnated blotter paper is a "mixture or substance" containing LSD within the meaning of the Guidelines and thus should be weighed in calculating the sentence. The weight of the impregnated squares was 44.133 grams. The weight of the liquid LSD alone was only 125 milligrams. If the blotter paper is included, the Guidelines sentence range is 151 to 188 months. If it is excluded, the applicable range is 21 to 27 months. *fn2"

 Although LSD is sold in various carrier mediums -- primarily blotter paper, sugar cubes, gelatin capsules or liquid -- courts addressing this issue have indicated that the weight of any LSD carrier medium must be included in fixing Guidelines sentence ranges. See United States v. Daly, 883 F.2d 313 (4th Cir. 1989) and cases cited therein. However, the issue has not been resolved in this circuit and, for reasons stated below, the Court is obliged to reach a different result.

 The Guidelines state that the phrase "mixture or substance" as used therein "has the same meaning as in 21 U.S.C. § 841." United States Sentencing Commission Guidelines Manual "Guidelines Manual") at 2.46. However, the statutory definitional section applicable to § 841, 21 U.S.C. § 802, does not define "mixture or substance." The Guidelines only provide that "unless otherwise specified, the weight of the controlled substance set forth in the [offense level] table refers to the entire weight of any mixture of substance containing a detectable amount of the controlled substance." Guidelines Manual at 2.45.

 Thus the question of whether impregnated blotter paper is a "mixture or substance" containing LSD is left unresolved by the statute and the Guidelines. Indeed, a November 30, 1988, Sentencing Commission publication entitled "Questions Most Frequently Asked About the Sentencing Guidelines" stated that the Commission has not taken a position on the issue of whether blotter paper should be weighed. *fn3"

 Other courts have included blotter paper weight in fixing Guideline sentences because they have considered LSD blotter paper to be equivalent to "cutting agents" used with other controlled substances. See Daly, 883 F.2d at 316-18; United States v. Bishop, 704 F. Supp. 910, 911 (N.D.Iowa 1989). This approach does not fully address the meaning of the term "mixture or substance containing" LSD. Ordinary accepted English language meanings do not bring impregnated blotter paper within the definition of either "substance" or "mixture."

 LSD-impregnated blotter paper is not a "substance." A substance is a "species of matter of a definite chemical composition," or "any particular kind of corporeal matter." 17 Oxford English Dictionary 64 (1989). A piece of paper soaked in ink, beer or LSD is not a kind or species of matter.

 LSD-impregnated paper also does not appear to be a "mixture." A mixture is "a coexistence of different ingredients or of different groups or classes of things mutually diffused through each other." 9 Oxford English Dictionary 921 (1989). In modern physical science, a mixture is the product of "the mechanical mixing of two substances as distinguished from (chemical) combination. . . . In a mixture the substances are unchanged. . . ." Id. To "mix" is "to put together . . . so that the particles or members of each are more or less evenly diffused among those of the rest; to unite . . . in this manner with another or others; to mingle, blend." Id. at 915. There is no proof that when paper is impregnated with LSD the "substances are unchanged" and "more or less evenly diffused."

 The phrase a "mixture or substance containing" LSD would have meaning in the Guidelines and statutory contexts even if blotter paper and perhaps certain other carrier mediums are not within the definition; Congress could have intended the term to refer to a liquid into which LSD tartrate has been dissolved.

 In addition, a comparison of the LSD overall weight table in the Guidelines with another Guidelines table entitled, "Typical Weight per Unit Table," Guidelines Manual at 2.51, indicates that to the extent the Sentencing Commission has focused on LSD sentences, it has proceeded as if blotter ...


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