United States of America, Plaintiff-appellee, v. James Falbo, Defendant-appellant, 991 F.2d 796 (6th Cir. 1993)

Defendant, James Falbo, challenges the district court's calculation of the base offense level used in fixing his sentence. He contends that the weight of the blotter paper used as a carrier should not have been included in determining the weight of the substance containing LSD. The issue raised by the appeal has been decided by the United States Supreme Court and by this court. In Chapman v. United States, 111 S. Ct. 1919, 1922 (1991), the Supreme Court examined the language "mixture or substance containing a detectable amount" of LSD in 21 U.S.C. § 841(b) (1) (B) (v) and held that "it is the weight of the blotter paper containing LSD, and not the weight of the pure LSD, which determines eligibility for the minimum sentence." Chapman was expressly followed in an opinion of this court in United States v. Andress, 943 F.2d 622 (6th Cir. 1991), cert. denied, 112 S. Ct. 1192 (1992).

Nevertheless, defendant asks us to adopt views expressed in a dissenting opinion in Chapman. As we are not at liberty to do so, the sentence is affirmed.