USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 97-1468

UNITED STATES,

Appellee,

v.

MANUEL VALERIO,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Dowd, Jr.,* Senior District Judge.

_____________________

_____________________

Randy Olen,
__________

with whom

John M. Cicilline
_________________

was on

brief for

appellant.
Margaret E. Curran, Assistant United States
___________________
whom Sheldon Whitehouse,
__________________
Madden,
______
appellee.

Assistant

United

Attorney, with

United States Attorney, and

States Attorney,

were

on

Kenneth P.
__________

brief for

____________________

January 26, 1998

____________________

____________________

Of the Northern District of Ohio, sitting by designation.

DOWD, Senior District Judge.

DOWD, Senior District Judge.
_____________________

The sole issue raised by

this

plea,

appeal of

is

the

defendant's sentence,

whether the

base(crack)

separated

based on

defendant

was entitled

from

cocaine

the

to

powder,

his guilty

have cocaine

as

packaged

together in three containers. The defendant asserted that the two

forms of cocaine should have been

the offense level.

separated prior to calculating

The sentencing court disagreed

and we agree

with the sentencing court and thus affirm.

The

possession

U.S.C.

defendant

with intent

841(a)(1).

1996, Providence Rhode

warrant at

the

was

charged

to deliver

in

an

cocaine in

He entered a plea of

indictment

violation of

guilty.

On June

Island police officers executed

defendant s home

containing cocaine powder and

and

seized three

cocaine base.

21

28,

a search

bags,

The total

with

each

combined

weight of powder and cocaine base was 123.4 grams.

the

Additionally,

police discovered a separate container containing 7.43 grams

of crack cocaine.1
____________________

The

defendant entered his plea of guilty on December 6, 1996.

The United States

Attorney recited the factual basis

follows:

. . . that on June 28, 1996, at approximately

6:00

p.m.,

Providence

executed a search
apartment . .
defendant

warrant at

. which

Manuel Valerio.

at home

Miranda
_______
time

. .

warning by

he agreed

where the drugs

He

home of

At the

floor
the

time the

warrant, the defendant

he was

advised of

the officers.

to show the
in his

At

his
that

police officers

house were

located.

led the officers to the master bedroom in

the apartment.
bag

officers

a first

was the

officers executed the

was

police

of rice.

Under the bed he pulled out a

Examination of that bag showed

-2-

in part as

The

district

offense level as

Guidelines

calculated the

32 pursuant to

drug quantity table.2

sentencing court agreed

indicates that if

controlled

court

2D1.1(c)(4)

defendant s

of the Sentencing

The government argued and the

that Note A to

2D1.1(c) applied which

a mixture or substance contains

substance, "the

weight

base

of

the

entire

more than one

mixture

or

substance is assigned to the controlled substance that results in

the greater

offense level."

weight of 123.4 grams

Consequently, the three

was treated as crack cocaine.3

bags with

The Court

____________________

that it contained

three plastic

bags.

The

plastic bags each contained a substance later

determined

in total to

be 123.4 grams

of a

mixture containing powder cocaine and cocaine

base
seized

. .

. in

a baby

that were

bedroom closet,

wipes container.

two bags

of cut

officers
Inside

and

also a

of
bag

containing 7.43 grams of cocaine base.

The defendant

agreed with the

above factual

basis.

This

subsection applies

to offenses

involving at

least 50

grams, but less than 150 grams of crack cocaine.

3
to

Prior
have a

to sentencing, the defendant moved

forensic

chemist separate

powder and the cocaine base.

and

for the opportunity

measure the

The motion was unopposed. However,

the defendant did not follow up on the request.

defendant

argues that had

cocaine

the crack cocaine

Nonetheless, the

been isolated from

the

cocaine powder, the resulting

base offense level would have

been 26, with a net offense level of 25, which when combined with

the defendant's Criminal History of II, would have provided for a

range of 63-78 months.
to 26,

the weight of the

the 7.43 grams

have to have

separated cocaine base,

been less

than 12.57

for a

to why counsel

grams of cocaine

20 grams.

It

for the defendant

that the "separated" crack cocaine

have weighed less than 12.57 grams.

-3-

when added to

separate container would

base offense level

cocaine is not more than

the record as

to lower the base offense level

of crack cocaine in the

2D1.1(c)(7) provides
crack

In order

of 26

base as

where the

is not clear from

is of the

view

in the three containers would

found

that the

121-151

of

offense level was

months by assessing a two

firearm and

three

level

31 with a

Guideline Range of

level increase for possession

decrease for

acceptance

of

responsibility.

The

substantial

government moved for a downward departure based on

assistance (

5K1.1)

sentence below the mandatory

and

the

Court

reduced

the

minimum to a term of 60 months from

which the defendant now appeals.4

The

offending

emerging issues in

controlled substances5

determining the weight

was partially

responsible for

the subsequent amendment 484 to the Sentencing Guidelines

which the

which

defendant takes comfort

became

commentary to

effective

November

in this case.

1,

1993

2D1.1 by deleting "21 U.S.C.

and

of the

and in

Amendment 484

amended

the

841" and inserting

in lieu thereof:

"21

U.S.C.

841,

provided.

Mixture

except
or

as

expressly

substance does

not

include materials that must be separated from

the

controlled

substance

controlled substance can

before

be used.

the

Examples

of such materials include the fiberglass in a

cocaine/fiberglass

bonded suitcase,

beeswax

____________________

The

defendant's sentencing range, prior to

to 151 months.
and

The prosecution advocated a

the defendant

indicated
sentence

a three

it would,

year sentence.

in effect,

the defendant

to the

cut

departure was 121

seven year sentence

The

the sentence

sixty-month

district court
in half

term.

and

Defendant's

counsel reasons that had the cocaine powder and cocaine base been

separated for sentencing purposes with a resulting range of 63 to

78 months, cutting the sentence in
32 month sentence.

Hence, the appeal.

See United States

_____________

1991) and
1992).

half would have resulted in a

v. Mahecha-Onofre, 936
______________

United States
_____________

v. L pez-Gil, 965
_________

F.2d 623 (1st Cir.

F.2d 1124

(1st Cir.

-4-

in a cocaine/beeswax statute, and waste water

from

an

illicit

laboratory

manufacture a controlled substance.

used
If

to
such

material cannot readily be separated from the

mixture

or substance

that appropriately

is

counted in the Drug Quantity Table, the court

may use any
the

reasonable method to approximate

weight of the mixture or substance to be

counted.

An

upward

warranted
counted

departure
when

in

the

the
Drug

nonetheless
mixture

or

Quantity

may

be

substance
Table

is

combined with

other, non-countable

material

in an unusually sophisticated manner in order

to avoid detection.".

It is without dispute that the defendant possessed with

intent

to

distribute

substances.

2D1.1

powder is

defendant argues

purposes

in reliance

as the

substance

containing

two

controlled

Nonetheless, because the two are not ingested in the

same manner, (the

the

they

on the

cocaine powder

concept of "materials

inhaled

must

be

and the

crack

is smoked)

for

sentencing

separated

Amended Commentary

and cocaine

to U.S.S.G.

base come

within the

that must be separated from the controlled

substance before the controlled substance can be used."

as indicated in United States v.

_____________

Cir. 1995), cert. denied, 116

____________

However,

Campbell, 61 F.3d 976, 982 (1st

________

S. Ct. 1556 (1996) "the commentary

excludes only materials

that are unusable or

as those

used to

products

that are discarded

put

into the

neither

the

unmarketable,

transport the

distribution

cocaine

powder

the revisions

unmarketable, such

controlled substance,

before the controlled

chain."

or

cocaine

to the

-5-

(Citations

base

or waste

substance is

omitted).

As

is unusable

or

commentary to

U.S.S.G.

2D1.1

provided by

Amendment 484

are

of no

assistance to

the

defendant.6

Accordingly, the district court's judgment is AFFIRMED.

AFFIRMED

____________________

Defendant's counsel, at the

sentencing hearing, advocated the

separation contending that finding the two substances together is

illogical and went on to state that he could not explain
cocaine base

and cocaine

powder were mixed.

offered as to why they were mixed,

No

why the

testimony was

but in our view the motive or

lack of motive for the mixture is not relevant.

-6-