90-5744 -- DISSENT v. UNITED STATES

No. 90-5744

L. CHAPMAN, JOHN M. SCHOENECKERand PATRICK BRUMM, PETITIONERS v.UNITED STATES

[May 30, 1991]

Justice Stevens, with whom Justice Marshall joins, dissenting.

The consequences of the majority's construction of 21 U.S.C. 841 are so bizarre that I cannot believe they were intended by Congress. Neither the ambiguous language of the statute, nor its sparse legislative history, supports the interpretation reached by the majority today. Indeed, the majority's construction of the statute will necessarily produce sentences that are so anomalous that they will undermine the very uniformity that Congress sought to achieve when it adopted the Sentencing Guidelines.

This was the conclusion reached by five Circuit judges in their two opinions dissenting from the holding of the majority of the Court of Appeals for the Seventh Circuit sitting en banc in this case. ^[n.1] In one of the dissenting opinions, Judge Cummings pointed out that there is no evidence that Con- gress intended the weight of the carrier to be considered in the sentence determination in LSD cases, and that there is good reason to believe Congress was unaware of the inequita- ble consequences of the Court's interpretation of the statute. United States v. Marshall, 908 F. 2d 1312, 1327-1328 (CA7 1990). As Judge Posner noted in the other dissenting opin- ion, the severity of the sentences in LSD cases would be com- parable to those in other drug cases only if the weight of the LSD carrier were disregarded. Id., at 1335.

If we begin with the language of the statute, ^[n.2] as did those judges who dissented from the Seventh Circuit's en banc de- cision, it becomes immediately apparent that the phrase "mixture or substance" is far from clear. As the majority notes, neither the statute ^[n.3] nor the Sentencing Guidelines ^[n.4] define the terms "mixture" or "substance." Ante, at 7. The majority initially resists identifying the LSD and carrier as either a mixture or a substance; instead, it simply refers to the combination, using the language of the statute, as a "mix- ture or substance containing a detectable amount of the drug." See ante, at 4, 5, 6, 7. Eventually, however, the majority does identify the combination as a mixture: "After the solvent evaporates, the LSD is left behind in a form that can be said to `mix' with the paper. The LSD crystals are inside the paper, so that they are commingled with it, but the LSD does not chemically combine with the paper." Ante, at 8. <sup>[n.5]</sup> Although it is true that ink which is absorbed by a blot- ter "can be said to `mix' with the paper," ibid., I would not describe a used blotter as a "mixture" of ink and paper. So here, I do not believe the word "mixture" comfortably de- scribes the relatively large blotter which carries the grains of LSD that adhere to its surface. ^[n.6]

Because I do not believe that the term "mixture" encom- passes the LSD and carrier at issue here, and because I, like the majority, do not think that the term "substance" de- scribes the combination any more accurately, I turn to the legislative history to see if it provides any guidance as to con- gressional intent or purpose. As the Seventh Circuit ob- served, the legislative history is sparse, and the only refer- ence to LSD in the debates preceding the passage of the 1986 amendments to 841 was a reference that addresses neither quantities nor weights of drugs. 908 F. 2d, at 1327; see also 132 Cong. Rec. S14030 (Sept. 27, 1986) (statement of Sen. Harkin).

Perhaps more telling in this case is the subsequent legisla- tive history. ^[n.7] In a letter to Senator Joseph R. Biden, Jr., dated April 26, 1989, the Chairman of the Sentencing Com- mission, William W. Wilkens, Jr., commented on the ambigu- ity of the statute:

" `With respect to LSD, it is unclear whether Congress intended the carrier to be considered as a packaging ma- terial, or, since it is commonly consumed along with the illicit drug, as a dilutant ingredient in the drug mix- ture. . . . The Commission suggests that Congress may wish to further consider the LSD carrier issue in order to clarify legislative intent as to whether the weight of the carrier should or should not be considered in deter- mining the quantity of LSD mixture for punishment pur- poses.' " 908 F. 2d, at 1327-1328.

Presumably in response, Senator Biden offered a technical amendment, the purpose of which was to correct an inequity that had become apparent from several recent court deci- sions. ^[n.8] According to Senator Biden, "[t]he amendment rem- edies this inequity by removing the weight of the carrier from the calculation of the weight of the mixture or sub- stance." 135 Cong. Rec. S12748 (Oct. 5, 1989). ^[n.9] Although Senator Biden's amendment was adopted as part of Amend- ment No. 976 to S. 1711, the bill never passed the House of Representatives. Senator Kennedy also tried to clarify the language of 21 U.S.C. 841. He proposed the following amendment:

"CLARIFICATION OF `MIXTURE OR SUBSTANCE.'

"Section 841(b)(1) of title 21, United States Code, is amended by inserting the following new subsection at the end thereof:

" `(E) In determining the weight of a "mixture or sub- stance" under this section, the court shall not include the weight of the carrier upon which the controlled sub- stance is placed, or by which it is transported.' " 136 Cong. Rec. S7069-S7070 (May 24, 1990).

Although such subsequent legislation must be approached with circumspection because it can neither clarify what the enacting Congress had contemplated nor speak to whether the clarifications will ever be passed, the amendments, at the very least, indicate that the language of the statute is far from clear or plain.

In light of the ambiguity of the phrase "mixture or sub- stance" and the lack of legislative history to guide us, it is necessary to examine the congressional purpose behind the statute and to determine whether the majority's reading of the statute leads to results that Congress clearly could not have intended. The figures in the Court's opinion, see ante, at 4, n. 2, are sufficient to show that the majority's construc- tion will lead to anomalous sentences that are contrary to one of the central purposes of the Sentencing Guidelines, which was to eliminate disparity in sentencing. "Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses

committed by similar offenders." U. S. Sentencing Comm'n,

Federal Sentencing Guidelines Manual 1.2 (1991). ^[n.10] As the majority's chart makes clear, widely divergent sentences may be imposed for the sale of identical amounts of a con- trolled substance simply because of the nature of the car- rier. ^[n.11] If 100 doses of LSD were sold on sugar cubes, the sentence would range from 188-235 months, whereas if the same dosage were sold in its pure liquid form, the sentence would range only from 10-16 months. See ante, at 4, n. 2. The absurdity and inequity of this result is emphasized in Judge Posner's dissent:

"A person who sells LSD on blotter paper is not a worse criminal than one who sells the same number of doses on gelatin cubes, but he is subject to a heavier pun- ishment. A person who sells five doses of LSD on sugar cubes is not a worse person than a manufacturer of LSD who is caught with 19,999 doses in pure form, but the former is subject to a ten-year mandatory minimum no- parole sentence while the latter is not even subject to the five-year minimum. If defendant Chapman, who re- ceived five years for selling a thousand doses of LSD on blotter paper, had sold the same number of doses in pure form, his Guidelines sentence would have been fourteen months. And defendant Marshall's sentence for selling almost 12,000 doses would have been four years rather than twenty. The defendant in United States v. Rose, 881 F. 2d 386, 387 (7th Cir. 1989), must have bought an unusually heavy blotter paper, for he sold only 472 doses, yet his blotter paper weighed 7.3 grams -- more than Chapman's, although Chapman sold more than twice as many doses. Depending on the weight of the carrier medium (zero when the stuff is sold in pure form), and excluding the orange juice case, the Guide- lines range for selling 198 doses (the amount in Dean) or 472 doses (the amount in Rose) stretches from ten months to 365 months; for selling a thousand doses (Chapman), from fifteen to 365 months; and for selling 11,751 doses (Marshall), from 33 months to life. In none of these computations, by the way, does the weight of the LSD itself make a difference -- so slight is its weight relative to that of the carrier -- except of course when it is sold in pure form. Congress might as well have said: if there is a carrier, weigh the carrier and for- get the LSD.

"This is a quilt the pattern whereof no one has been able to discern. The legislative history is silent, and since even the Justice Department cannot explain the why of the punishment scheme that it is defending, the most plausible inference is that Congress simply did not realize how LSD is sold." 908 F. 2d, at 1333. ^[n.12]

Sentencing disparities that have been described as "crazy," ibid., and "loony," id., at 1332, could well be avoided if the majority did not insist upon stretching the definition of "mix- ture" to include the carrier along with the LSD. It does not make sense to include a carrier in calculating the weight of the LSD because LSD, unlike drugs such as cocaine or mari- juana, is sold by dosage rather than by weight. Thus, whether one dose of LSD is added to a glass of orange juice or to a pitcher of orange juice, it is still only one dose that has been added. But if the weight of the orange juice is to be added to the calculation, then the person who sells the single dose of LSD in a pitcher rather than in a glass will receive a substantially higher sentence. If the weight of the carrier is included in the calculation not only does it lead to huge dis- parities in sentences among LSD offenders, but also it leads to disparities when LSD sentences are compared to sen- tences for other drugs. See n. 12, supra; 908 F. 2d, at 1335.

There is nothing in our jurisprudence that compels us to in- terpret an ambiguous statute to reach such an absurd result. In fact, we have specifically declined to do so in the past, even when the statute was not ambiguous, on the ground that Congress could not have intended such an outcome. ^[n.13] In construing a statute, Learned Hand wisely counseled us to look first to the words of the statute, but "not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Cabell v. Markham, 148 F. 2d 737, 739 (CA2), aff'd, 326 U.S. 404 (1945). In the past, we have rec- ognized that "frequently words of general meaning are used in a statute, words broad enough to include an act in ques- tion, and yet a consideration of . . . the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act." Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). These words guided our construc- tion of the statute at issue in Public Citizen v. Department of Justice, 491 U.S. 440, 454 (1989), when we also noted that "[l]ooking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' inten- tion . . . ." Id., at 455.

Undoubtedly, Congress intended to punish drug traffick- ers severely, and in particular, Congress intended to punish those who sell large quantities of drugs more severely than those who sell small quantities. ^[n.14] But it did not express any intention to treat those who sell LSD differently from those who sell other dangerous drugs. ^[n.15] The majority's construc- tion of the statute fails to embody these legitimate goals of Congress. Instead of punishing more severely those who sell large quantities of LSD, the Court would punish more se- verely those who sell small quantities of LSD in weighty car- riers, and instead of sentencing in comparable ways those who sell different types of drugs, the Court would sentence those who sell LSD to longer terms than those who sell pro- portionately equivalent quantities of other equally dangerous drugs. ^[n.16] The Court today shows little respect for Congress' handiwork when it construes a statute to undermine the very goals that Congress sought to achieve.

I respectfully dissent.

Notes

1 Chief Judge Bauer and Judges Wood, Cudahy and Posner joined Judge Cummings' dissent, see United States v. Marshall, 908 F. 2d 1312, 1326 (CA7 1990), and all of these judges also joined Judge Posner's dissent. See id., at 1331.

2 See United States v. Turkette, 452 U.S. 576, 580 (1981) ("In determin- ing the scope of a statute, we look first to its language").

3 The statutory definitional section applicable to 841, 21 U.S.C. 802 does not define "mixture or substance."

4 The Guidelines merely provide that "[u]nless otherwise specified, the weight of a controlled substance set forth in the [offense level] table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." U. S. Sentencing Comm'n, Federal Sentencing Guidelines Manual 2.47 (1991).

5 The majority of the Seventh Circuit also identified the combination as a "mixture," see 908 F. 2d, at 1317-1318; however, other Circuits that have addressed the question have either identified the combination as a sub- stance, see, e. g., United States v. Bishop, 894 F. 2d 981, 986 (CA8 1990); United States v. Daley, 883 F. 2d 313, 317 (CA4 1989); United States v. Taylor, 868 F. 2d 125, 127 (CA5 1989), or have simply held that the com- bination fell within the statutory language of a "mixture or substance," without distinguishing between the two. See, e. g., United States v. Elrod, 898 F. 2d 60, 61 (CA6 1990); United States v. Larsen, 904 F. 2d 562, 563 (CA10 1990).

6 The point that the "mixture or substance" language remains ambiguous is highlighted by the Sentencing Commission's own desire to clarify the meaning of the terms. A Sentencing Commission Notice, issued on March 3, 1989, invited public comment on whether the Commission should exclude the weight of the carrier for sentencing purposes in LSD cases. A section in the Guidelines Manual, entitled "Questions Most Frequently Asked About the Sentencing Guidelines," contains a question about the "mixture or substance" language, which reflects the Commission's continuing uncer- tainty as to whether the blotter paper should be weighed:

"With respect to blotter paper, sugar cubes, or other mediums on which LSD or other controlled substances may be absorbed, the Commission has not definitively stated whether the carrier medium is considered part of a drug `mixture or substance' for guideline application purposes. In order to ensure consistency between the guidelines and the statute, Application Note 1 to 2D1.1 states that the term `mixture or substance' has the same meaning for guideline purposes as in 21 U.S.C. 841. Thus, the court must determine whether, under this statute, LSD carrier medium would be considered part of an LSD mixture or substance. To date, all circuit courts that have addressed the issue appear to be answering the question affirmatively." Federal Sentencing Guidelines Manual, supra, at 599.

7 Of course subsequent legislative history is generally not relevant and always must be used with care in interpreting enacted legislation. Com- pare Sullivan v. Finkelstein, 496 U. S. --- , --- , n. 8 (1990) (slip op., at 10-11, n. 8), with id., at --- (slip op., at 1-2) (Scalia, J., concurring in part). It can, however, provide evidence that an effect of a statute was simply overlooked.

8 See, e. g., United States v. Bishop, 704 F. Supp. 910 (ND Iowa 1989).

9 Senator Biden offered the following example to highlight the inequities that resulted if the carrier weight were included in determining the weight of the "mixture or substance" of LSD:

"The inequity in these decisions is apparent in the following example. A single dose of LSD weighs approximately .05 mg. The sugar cube on which the dose may be dropped for purposes of ingestion and transporta- tion, however, weighs approximately 2 grams. Under 21 U.S.C. 841(b) a person distributing more than one gram of a `mixture or sub- stance' containing LSD is punishable by a minimum sentence of 5 years and a maximum sentence of 40 years. A person distributing less than a gram of LSD, however, is subject only to a maximum sentence of 20 years. Thus a person distributing a 1,000 doses of LSD in liquid form is subject to no minimum penalty, while a person handing another person a single dose on a sugar cube is subject to the mandatory five year penalty." 135 Cong. Rec. S12748 (Oct. 5, 1989).

10 "Sentencing disparities that are not justified by differences among of- fenses or offenders are unfair both to offenders and to the public. A sen- tence that is unjustifiably high compared to sentences for similarly situated offenders is clearly unfair to the offender; a sentence that is unjustifiably low is just as plainly unfair to the public." S. Rep. No. 98-225, pp. 45-46 (1983).

"The bill creates a sentencing guidelines system that is intended to treat all classes of offenses committed by all categories of offenders consistently." Id., at 51.

"A primary goal of sentencing reform is the elimination of unwarranted sentencing disparity." Id., at 52 (footnote omitted).

See S. Rep. No. 97-307, pp. 963, 968 (1981) (same).

11 See, e. g., United States v. Healy, 729 F. Supp. 140, 143 (DC 1990); United States v. Daley, 883 F. 2d, at 316-318.

12 His comparison between the treatment of LSD and other more harmful drugs is also illuminating:

"That irrationality is magnified when we compare the sentences for peo- ple who sell other drugs prohibited by 21 U.S.C. 841. Marshall, re- member, sold fewer than 12,000 doses and was sentenced to twenty years. Twelve thousand doses sounds like a lot, but to receive a comparable sen- tence for selling heroin Marshall would have had to sell ten kilograms, which would yield between one and two million doses. Platt, Heroin Ad- diction: Theory, Research, and Treatment 50 (2d ed. 1986); cf. Diamor phine 63, 98 (Scott ed. 1988). To receive a comparable sentence for selling cocaine he would have had to sell fifty kilograms, which would yield any- where from 325,000 to five million doses. Washton, Cocaine Addiction: Treatment, Recovery and Relapse Prevention 18 (1989); Cocaine Use in America: Epidemiologic and Clinical Perspectives 214 (Kozel & Adams, eds., National Institute on Drug Abuse Pamphlet No. 61, 1985)). While the corresponding weight is lower for crack -- half a kilogram -- this still translates into 50,000 doses." 908 F. 2d, at 1334.

13 See, e. g., Gozlon-Peretz v. United States, 498 U. S. --- (1990) (Con- gress must have intended supervised release to apply to those who commit- ted drug offenses during the interim period after the Anti-Drug Abuse Act of 1986 was enacted but before the Sentencing Reform Act became effec- tive even though the latter, which defined the term, had not yet become effective); Sheridan v. United States, 487 U.S. 392, 403 (1988) ("If the Government has a duty to prevent a foreseeably dangerous individual from wandering about unattended, it would be odd to assume that Congress in- tended a breach of that duty to give rise to liability when the dangerous human instrument was merely negligent but not when he or she was mali- cious"); see also Green v. Bock Laundry Machine Co., 490 U.S. 504, 509 (1989) ("The Rule's plain language commands weighing of prejudice to a de- fendant in a civil trial as well as in a criminal trial. But that literal reading would compel an odd result in a case like this"); id., at 527 (Scalia, J., concurring in judgment) ("We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result").

14 "The [House] Committee strongly believes that the Federal govern- ment's most intense focus ought to be on major traffickers, the manufactur- ers or the heads of organizations, who are responsible for creating and delivering very large quantities of drugs." H. R. Rep. No. 99-845, pp. 11-12 (1986).

15 "The result [of the Code] is a consistent pattern of maximum sentences for equally serious offenses instead of the current almost random maximum sentences caused by the piecemeal approach to creation of Federal criminal laws in the past." S. Rep. No. 97-307, p. 968 (1981) (footnote omitted). 16 "[T]he use of sentencing guidelines and policy statements will assure that each sentence is fair as compared to all other sentences." Ibid.