Application of the facts of this case to the weight per unit table is instructive. The parties agree that the number of doses at issue is 5000. If the LSD weight was unknown and the weight per unit table applicable, use of the table would indicate a weight of 250 milligrams, leading to an offense level of 18 and, given Healy's Criminal History category of I, a sentence of 27 to 33 months.
Because the weight of the drugs is known in this case, the Court must use the overall weight table only and not the weight per unit table. By including the weight of the blotter paper, the total weight -- 44.133 grams -- leads to an offense level of 34 and a sentence range of 151 to 188 months. Without the blotter paper, the only relevant weight is the 125 milligrams of LSD the DEA found on the paper (.025 milligrams per dose), leading to an offense level of 16 and a sentence range of 21 to 27 months. This latter result is far closer to the result that would be obtained using the weight per unit table and provides further indication that the Commission did not intend that courts include blotter paper weight in determining offense levels.
Buttressing this indication is a related judicial finding of congressional intent. In United States v. McGeehan, 824 F.2d 677, 681 (8th Cir. 1987), the court examined the relationship between the 1981 and 1986 amendments to section 841 and the legislative history and concluded, "The enhanced sentencing provisions of § 841 were not intended to reach a distributor of 1,000 or even 5,000 dosage units of LSD." Id. These enhanced sentences under § 841 apply to defendants who possess or sell more than one gram of a mixture or substance containing LSD. 21 U.S.C. §§ 841(b)(1)(A)(v), 841(b)(1)(B)(v). As noted, if blotter paper is included, the 5000 doses Healy sold weighed more than 44 grams.
It is settled that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," Rewis v. United States, 401 U.S. 808, 812, 28 L. Ed. 2d 493, 91 S. Ct. 1056 (1971), and the same principle is appropriate here when considering the Guidelines, which have the effect of statutory provisions on convicted persons. Thus any ambiguity in the Guidelines with respect to whether LSD-impregnated blotter paper is a "mixture or substance containing" LSD must be resolved in favor of the defendant.
Excluding blotter paper weight also comports with a central goal of the Guidelines as mandated by Congress, namely uniformity in sentencing. Guidelines Manual at 1.2. If the weights of the various LSD carrier mediums -- paper, sugar cubes, capsules and liquid -- are taken into account, widely divergent sentences may be imposed for sale of identical amounts of a controlled substance. See Daly, 883 F.2d at 316-18. It is basically illogical to graduate the severity of LSD sentences based on the weight of these carrier mediums. Graduation of sentences based on market value or number of dosages is far more sensible and fair in that it would punish on the basis of the individual's significance in the drug supply chain or the harm the distribution posed to society.
In this regard, the defendant notes that the minimum amount of cocaine that must be distributed to constitute a Guidelines level 32 offense is 5 kilograms, which, according to a federal government report, had a 1988 wholesale price of between $ 55,000 and $ 170,000. National Narcotics Intelligence Consumers Committee, The NNICC Report 1988: The Supply of Illicit Drugs to the United States 31 (1989). The minimum amount of LSD for a level 32 offense is 10 grams. Ten grams of the LSD in this case, if the blotter paper is weighed, contains about 1135 doses, which would have a wholesale value of between $ 397.25 and $ 1702.50, based on an estimated 1988 wholesale price of 35 cents to $ 1.50 per dose. Id. at 52.
Surely the Sentencing Commission did not intend that a person caught with $ 1000 worth of LSD would face the same sentence as one caught with $ 100,000 worth of cocaine, especially considering the relative impacts of the two drugs.
In sum, the statute and Guidelines do not clearly mandate that LSD blotter paper be weighed. Policy and legal considerations as well as the Sentencing Commission's own formulae suggest that it not be weighed. Accordingly, the Court in this instance will consider only the weight of the liquid LSD, and thus fixes the basic offense level at 16, corresponding to a guideline range of 21 to 27 months imprisonment.