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U.S. v. DeJulius

August 5, 1997

UNITED STATES OF AMERICA APPELLANT,

v.

MICHAEL DEJULIUS APPELLEE.



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 94-cr-00522-1)

BEFORE: STAPLETON and LEWIS, Circuit Judges and WALLS, *fn* District Judge.

LEWIS, Circuit Judge.

Filed August 5, 1997

ARGUED MAY 8, 1997

OPINION OF THE COURT

Michael DeJulius pleaded guilty to federal charges relating to a conspiracy to distribute nineteen pounds of methamphetamine. The district court sentenced DeJulius to 70-months imprisonment -- 30 months below the mandatory minimum sentence required by 21 U.S.C. Section(s) 841(b)(1)(A)(viii) for possession or distribution of 100 grams or more of methamphetamine. The government appeals on the basis that the district court erred by not applying the ten-year mandatory minimum sentence. We agree with the government and will reverse.

I.

On December 14, 1994, a federal grand jury returned an indictment charging DeJulius and four co-defendants on numerous counts arising from a conspiracy to manufacture and distribute methamphetamine. On May 15, 1995, DeJulius pleaded guilty to all charges against him. *fn1 The Presentence Investigation Report ("PSR") attributed nineteen pounds of methamphetamine to DeJulius, resulting in a base offense level of 34. DeJulius then received a 3-level acceptance of responsibility reduction, lowering his total offense level to 31. Taking into account his criminal history category of I and the applicability of the ten-year mandatory minimum for a quantity of methamphetamine over 100 grams, the PSR calculated the applicable guideline range at 120-135 months.

On August 15, 1995, DeJulius filed a sentencing memorandum objecting to the PSR. DeJulius's primary objection was to the quantity of methamphetamine attributed to him. Specifically, DeJulius argued that the ten-year mandatory minimum was not applicable unless the government could prove that the methamphetamine in question was actually D-methamphetamine as opposed to L-methamphetamine. *fn2

In response to DeJulius's objections, the district court held a sentencing hearing to determine whether the ten-year mandatory minimum sentence should apply. At the hearing, the government presented substantial evidence regarding both the quantity and quality of the methamphetamine attributable to DeJulius. This evidence included the testimony of Bradley Campbell, a forensic chemist employed by the DEA. Campbell stated that the methamphetamine attributable to DeJulius weighed 446.6 grams and contained 25%, or 111.6 grams, DL-methamphetamine hydrochloride. The district court adopted Campbell's testimony, finding that 111.6 grams of DL-methamphetamine were attributable to DeJulius. See United States v. DeJulius, No. 94-522-01, slip op. at 9 (E.D. Pa. July 15, 1996). *fn3 The court also concluded, however, that 111.6 grams of DL-methamphetamine was an insufficient quantity to trigger application of the ten-year mandatory minimum statute.

In reaching this conclusion, the court reasoned that DL-methamphetamine should be divided into its components -- D-methamphetamine and L-methamphetamine -- and that only D-methamphetamine could be counted toward the 100 grams required by the ten-year mandatory minimum. Assuming that our opinion in United States v. Bogusz, 43 F.3d 82 (3d Cir. 1994), dictated this result, the court reasoned:

I take this to mean that the [Bogusz] court expected we would convert DL-methamphetamine into its components, 50% D-methamphetamine and 50% L-methamphetamine, and calculate the value of each half separately for sentencing purposes, converting the L-half to its equivalent in marijuana. Performing that calculation in this case, the 111.6 grams of pure DL-methamphetamine attributable to the defendant are to be counted as 55.8 grams of D-methamphetamine, or methamphetamine (actual), and 55.8 grams of L-methamphetamine. DeJulius, slip op. at 19.

Thus, the district court concluded that because only D-methamphetamine could be considered "methamphetamine" under 21 U.S.C. Section(s) 841(b)(1)(A)(viii), and only 55.8 grams of D-methamphetamine could be attributed to the defendant, the ten-year mandatory minimum did not apply. *fn4 Instead, the court applied the five-year mandatory minimum provided by 21 U.S.C. Section(s) 841(b)(1)(B)(viii) for conduct involving ten grams or more of methamphetamine. *fn5 After ...


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