UNITED STATES of America, Plaintiff-Appellee,
Steven R. SASSI, Defendant-Appellant.
United States Court of Appeals, Seventh Circuit.
Submitted Aug. 12, 1994.*
Decided Aug. 22, 1994.
33 F.3d 56
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Before POSNER, Chief Judge, and COFFEY and EASTERBROOK, Circuit Judges.
In 1992 Steven Sassi was sentenced to 135 months' imprisonment for conspiracy to distribute LSD. Later the Sentencing Commission revised the way the weight of LSD is determined under the Guidelines. Instead of counting the weight of both LSD and carrier medium, the court now treats each dose as weighing 0.4 mg. See U.S.S.G. Sec. 2D1.1. This amendment, effective in November 1993, is applicable retroactively. U.S.S.G. Sec. 1B1.10; see also 18 U.S.C. Sec. 3582(c)(2). The district court calculated the range under the amended Guideline as 70 to 87 months' imprisonment. Nonetheless, the court resentenced Sassi to 120 months' imprisonment because of a statutory minimum sentence. 21 U.S.C. Sec. 841(b)(1)(A).
The district court handled this resentencing exactly right. The range under the Guidelines fell, but the statutory minimum did not. We know from Chapman v. United States, 500 U.S. 453 (1991), that the weight of the carrier medium counts in the statutory calculation. The Sentencing Commission could not change this and did not try. United States v. Boot, 25 F.3d 52 (1st Cir.1994). An application note to the revised Sec. 2D1.1 states that the new formula "does not override the applicability of 'mixture or substance' for the purpose of applying any mandatory minimum sentence".
Sassi's argument that the 120-month sentence exceeds constitutional limits fails for two reasons. First, this argument could have been raised on his original appeal (when the sentence was 135 months) but was not. It has therefore been forfeited. Second, Chapman sustained against constitutional attack the methodology that produced the 120-month sentence.
This appeal, defendant's second, has been submitted to the original panel, which has unanimously concluded that further oral argument is unnecessary