Beruflich Dokumente
Kultur Dokumente
____________________
____________________
July 7, 1994
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court, acting
Sentencing Guidelines,
Commission,
Guidelines
Manual,
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2D1.1,
Sen-
comment.
sentence
on the
ground that
the
district court
erred in
not
mandated by statute.
For purposes of
gram or
more of a
see U.S.S.G.
___
21 U.S.C.
determining both
See 21
___
a detectable
(Nov.
1991),1
the
district
court included the entire weight of the paper carrier medium used
in distributing the 900 LSD doses.
500
U.S.C.
(construing "mixture
or substance,"
in 21
to be included").
under the
The 63-month
Guidelines (BOL:
26; CHC:
I;
GSR:
imposed
63-78 months)
841(b)(1)(B)(v) for
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1See United States v. Dimeo, 753 F. Supp. 23, 26
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1990), aff'd, 946 F.2d 880 (1st Cir. 1991) (table).
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2
(D. Me.
November 1,
See U.S.S.G.
___
1993,
however, the
5G1.1(c).
Sentencing
944(p), by
quantity than
See U.S.S.G.
___
the regime
2D1.1, comment.
As
previously upheld
with 18
(1st Cir. 1994) [No. 93-2317, slip op. at 3-4 (1st Cir.
1994)],
in
the district
court later
June 7,
quantity for
On appeal,
Dimeo
permitting Amendment
claims for
488 to
take effect
weight be calculated
for
MMS
both
GSR and
Chapman.4
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Further,
purposes, thereby
also for
constitutional challenge to
gent regimes
process
deemed waived
the first
protection.
in the
time that
Congress signaled
under a unitary
time, Dimeo
its
method
asserts a
two diver-
quantity, as violative
Even if
by
implicitly overruling
and equal
the first
these claims
failure to
of due
were not
raise them
either before or
sentence
reduction
pursuant
to Amendment
upon
is
3582(c)(2),
488
at 7, a MMS reduction
U.S.C.
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raised in
S. Ct.
2429 (1993).
4This claim
is foreclosed by
in Boot,
____
slip op. at 7. We note, further, that the constitutional challenge belatedly asserted by appellant may entail considerable
risk. Chapman conclusively establishes the constitutionality of
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the "mixture or substance" methodology for MMS purposes.
Id.
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Were a court to conclude that the "mixture or substance" methodology and the 0.4 milligram per-dose formula cannot coexist
constitutionally, it seems virtually certain that Amendment 488,
rather than the "mixture or substance" methodology upheld in
Chapman, would be struck down, and with it the Guidelines sen_______
tence reduction. But see infra at pp. 4-5.
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4
note
2,
since
it
would be
inconsistent
with
Amendment 488:
theless, this
[new Guidelines]
approach does
applicability
of
substance'
'mixture
or
the Sentencing
not override
for the
U.S.S.G.
2D1.1, comment.
op. at 7.
Affirmed.
Affirmed.
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(backg'd.).
"None-
purpose
the
of
5G1.1(b)-