USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1808

UNITED STATES,

Appellee,

v.

CHRISTOPHER N. SIA,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

___________________

____________________

Before

Cyr, Stahl and Lynch,

Circuit Judges.
______________

____________________

Donald Thomas Bergerson on brief for appellant.

_______________________
Jay P. McCloskey,
________________

United States

Attorney, and

F. Mark Teris
______________

Assistant United States Attorney, on brief for appellee.

____________________

December 18, 1996

____________________

Per Curiam.
__________

denial of

his

Defendant

motion for

Christopher Sia appeals from the

reduction

of sentence

under

18

U.S.C.

3582(c)(2).

For the reasons that follow, we vacate

and remand for further proceedings.

I.

The

Defendant

background

need

only

pled guilty to four

be

drug charges in

sentenced to 293 months in prison.

appearing

both

on

blotter

Thereafter, the Sentencing

the methodology

for

briefly

Office,

the

paper

and

reconsideration

of

in

liquid

Commission retroactively

calculating the

At the

district

1991 and was

The offenses involved LSD

weight

U.S.S.G. App. C (Amendment 488) (amending

November 1, 1993).

recounted.

defendant's

undertook

sentence

revised

of LSD.

See
___

2D1.1) (effective

recommendation of the

court

form.

Probation

sua
sponte
____________

in light

of

the

amendment

(as it did in over a

dozen other LSD cases in the

district).

Applying the new formula to the blotter LSD, but deeming

it

inapplicable

to the

liquid LSD,

amount of "heroin equivalent"

99

kilograms to

the court

reduced the

attributable to defendant from

50 kilograms.

Even

with such

reduction,

however, defendant remained subject to the same offense level

(of

38)

and

Accordingly,

the

on

same

November

defendant, the court issued

sentencing

12,

1993,

range

without

as

before.

filings from

an amended judgment finding that

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"the term

of incarceration

the change in the

law."

appeal

had

but

then

imposed herein is

unaffected by

Defendant through counsel

second

thoughts;

counsel

filed an

moved

to

withdraw and the appeal was dismissed in May 1994.

In May 1996,

for reduction,

defendant filed the instant

contending in

488 did

in fact

blotter

LSD.

The

apply

to the

a lengthy memo

liquid LSD

government filed

pro se motion

that Amendment

as

well as

an opposition,

the

and the

district court denied the

"After

full review

within

motion

is

motion in a margin order

of the

hereby

written submissions

denied."

stating:

hereon, the

Defendant,

with

new

counsel, filed a timely appeal.

II.

We do not understand the government here to be seriously

contending that Amendment 488

The sole

reference to

otherwise.1
1

All

liquid LSD

courts

differing over the precise

that the full

included in

States
______

is inapplicable to liquid LSD.

weight of the

in the amendment

to address

the

issue,

implies

although

methodology to be employed, agree

liquid LSD is

calculating drug quantities.

no longer to

be

See, e.g., United

___ ____ ______

v. Ingram, 67 F.3d 126 (6th Cir. 1995); United States

______
_____________

____________________

1
1

See
___

U.S.S.G.

(LSD that has not

2D1.1 n.16 ("In the

case of liquid LSD

been placed onto a carrier

medium), using
_____

the weight of the LSD alone to calculate the offense level

_____________________________________________________________
may not

adequately reflect

In such

case, an

upward

the seriousness of
departure may

(emphasis added).

-3-

be

the offense.
warranted.")

v.

Turner, 59
______

Jordan, 842
______

separate

F.3d 481

F. Supp.

appeal from

(4th Cir.

1031

(M.D. Tenn.

Maine

should have

488;

we

1994).

involving the

appellee, this court remanded

government's concession

1995); United States v.

______________

same

that the weight of

agreed

that

contemplates some adjustment

in

government

for resentencing based on "the

the 'liquid LSD'

been recalculated" in accordance

there

And

"the

with Amendment

commentary

where liquid LSD is

United States v. Lowden, 36 F.3d 1090, 1994

_____________
______

arguably

involved."

WL 497586, at *1

(1st Cir. 1994) (table) (per curiam).2

2

Instead,

objections

the

that,

government interposes

in

its

view,

various procedural

foreclose

defendant

from

seeking such

relief at

this

juncture.

It first

contends

that, just as in the habeas context, a defendant is precluded

from

filing

"successive"

motion except under

assumption that

sua sponte
__________

strained.

or "repetitive"

narrow circumstances.

Yet even on

defendant's earlier appeal

order constituted such

habeas petition is

3582(c)(2)

the

from the court's

a motion, the

analogy is

governed by specific

rules

____________________

2
2

As it

did below,

appeal that the

the

government only

amendment might be

that the Probation

intimates on

inapplicable--suggesting

Office did not earlier

apply the revised

formula to liquid LSD because the drug was not "on" a carrier
medium
Yet

"as required

the amended

interchangeably.

by the amendment"

commentary
And the

uses the

words

"in" it.

"on" and

amendment's definition of

LSD as "LSD that has not been placed

see
___

but rather

"in"
liquid

onto a carrier medium,"

note 1 supra, indicates that the liquid solvent does not

_____

constitute a carrier medium.

See, e.g., Ingram, 67

___ ____ ______

F.3d at

128; Turner, 59 F.3d at 485.

______

-4-

restricting multiple

filings; a

See, e.g., United States

___ ____ _____________

(N.D.N.Y.

1996).

constraints in the

And

3582(c)(2)

motion is not.

v. Hollenbeck, 932 F. Supp.

__________

the

concerns

habeas context are

giving rise

53, 56

to

such

implicated here to

far

lesser extent.

would appear more

Fed.

R. Crim.

Instead,

akin to

P. 35.

a motion

one under the

And it

358 U.S.

415, 418 n.7

3582(c)(2)

former version

was agreed

motions were permissible under that rule.

v. United States,
_____________

under

of

that successive

See, e.g., Heflin

___ ____ ______

(1959); Ekberg
______

v.

United States, 167 F.2d 380, 384 (1st Cir. 1948).3

3
_____________

The

government also insists that defendant, having pled

guilty to an indictment charging distribution of at least ten

grams

of LSD and having stipulated to a heroin equivalent of

99 kilograms

for sentencing

such agreements.

both

based

upon

detectable amount

purposes, cannot now

renege on

Yet the indictment and the stipulation were

"mixture

or

substance"

of LSD--a methodology

containing

later discarded

by

Amendment 488.

F.3d

Our

decision in United States v.

_____________

Lindia, 82
______

1154, 1159 n.3 (1st Cir. 1996), on which the government

relies, does not dictate that such stipulated drug quantities

were

immune

from

later

modification

resulting

from

an

____________________

3
3

Neither

contended that
constitutes
court.

below

nor

on

appeal

has

this court's dismissal of

the law

of

the case

government

the earlier appeal

binding

The matter is therefore waived.

the

on the

See, e.g., Castillo

___ ____ ________

v. United States, 34 F.3d 443, 445 (7th Cir. 1994).

_____________
be inclined

not to rely on

the doctrine in any

note 4 infra.
_____

-5-

district

We would

event.

See
___

intervening amendment.

the district

Indeed, under

court would

the quantity of

the government's view,

have been precluded

drugs attributable to defendant

from reducing

in the 1993

amended judgment.

In

district

the alternative,

court properly denied the motion

discretion.

the lower

the government

To

be sure, given

court in this context,

contends

that the

as an exercise of

the discretion entrusted

to

"most resentencing battles

will

be

won

or

lost in

appellate venue."

1411

the

district

United States v.
_____________

court,

not

in an

LaBonte, 70 F.3d
_______

1396,

(1st Cir. 1995), cert. granted, 116 S. Ct. 2545 (1996).

_____________

Yet the court here

or more of

seemingly denied the motion based

the arguments advanced

As a result, it is possible

by the government

on one

below.

that the district court may have

misapprehended that Amendment 488 was

inapplicable to liquid

LSD (a misapprehension shared by this court, we might add, at

the time

of

possible that

mistaken

defendant's earlier

the lower

notion

that

court denied

defendant's

impermissible "successive"

____________________

appeal).

motion.4
4

relief

request

Given

It is

likewise

based on

the

constituted

an

these

possible

4
4

It is also

contention

conceivable (despite the lack

from the

itself bound by this

government) that

the lower

of any such
court felt

court's earlier decision on law

of the

case grounds--a rationale with which it would be difficult to

quarrel.

Even if

discretion[;]

it

so, that doctrine only "directs

does

not

Arizona v. California, 460

_______
__________
the
of

limit

the

U.S. 605, 618 (1983).

circumstances presented--particularly
the law

in the

wake of

tribunal's

defendant's

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a court's
power."
And under

the clarification
earlier appeal--we

misapprehensions, urged by the government, the district court

might

choose

now to

do something

different.

We

think a

remand is appropriate and vacate the sentence.

As a

final argument,

the government suggests

that the

lower court calculated the revised sentencing range under the

amendment, determined that an

upward departure to 293 months

would be warranted, and then denied the motion simply because

defendant was

mentioned

already

the possibility

passing below, and there

court engaged in

of

any

at that

possible

of

level.

an upward

departure

government

departure only

is no indication that

any such undertaking.

such

Yet the

Given

here

(if

in

the district

the magnitude

defendant's

calculations bear out, he will be subject to an offense level

of 32, with

a range of 121 to 151

months), the government's

conjecture

suffice.

on

At

encourages

the

ambiguous

the

same time,

an upward departure

record

we

before

note that

in cases of

us

does

not

Amendment

488

liquid LSD, and

the court remains free to take such action on remand.

In

deciding

warranted, and

whether

if

so to

what

reduction

extent, the

of

sentence

district

is

court

should first calculate the revised sentencing range under the

amendment.

This inquiry will require ascertaining either the

weight of "pure" LSD

number

of dosage

dissolved in the liquid solvent

units

contained therein.

or the

Defendant

has

____________________

thinkit would be inappropriate to invoke that doctrine here.

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proffered a figure for the weight of pure LSD, one apparently

drawn

are

from government laboratory

not in

the

Alternatively,

attributed a

record, that

reports; as

figure

those reports

cannot be

confirmed.

he notes that the original presentence report

total of

7500 dosage units

grams of liquid LSD for which

extrapolation, and

on the

to 419 of

he was responsible.

assumption that the

the 485

By way of

remaining 66

grams were of comparable strength, he derives

of

dosage

units

(8,680)

for

the

full

485

a total number

grams.

defendant's factual assumptions prove valid, the court

be

persuaded

to adopt

such

an

approach.

additional evidence may be received.

If

might

Alternatively,

We leave these matters

for resolution by the district court in the first instance.5

5

Vacated and remanded for further proceedings. See Loc.

________________________________________________________

R. 27.1.
________

____________________

5
5

We

express no view as to whether

the number of dosage

units should be multiplied by 0.05 mg (the presumptive weight

of

pure LSD per dose), see Turner,

___ ______

0.4 mg
F.3d

(the amendment's
at 128.

Indeed,

59 F.3d at 485-91, or by

conversion factor), see

___
it may

prove unnecessary

Ingram, 67
______
to choose

between these competing approaches in the instant case.

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