Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)Annotate this Case
UNITED STATES of America, Plaintiff-Appellee,v.Alphonse James DUCOTE, Defendant-Appellant.
Nos. 90-50106, 90-50343.
United States Court of Appeals, Ninth Circuit.
Submitted June 4, 1991.* Decided June 17, 1991.
Before GOODWIN, PREGERSON and ALARCON, Circuit Judges.
Defendant Alphonse James Ducote pleaded guilty to possession with intent to distribute lysergic acid diethylamide (LSD) in violation of 21 U.S.C. § 841(a) (1). In these consolidated appeals, Ducote contends that the district court erred by including the weight of the blotter paper "carrying" the LSD in determining the weight of the LSD "substance or mixture" under the Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual, Sec. 2D1.1 at 2.47 (Nov. 1990).
Initially, the government argues that we lack jurisdiction over Ducote's appeals because the notice of appeal in appeal no. 90-50343 was not filed within the 10 day period required for criminal appeals under Fed. R. App. P. 4(b). Appeal No. 90-50343 is not a direct criminal appeal, however, but an appeal from the district court's denial of a 28 U.S.C. § 2255 motion. As such, Ducote had 60 days--not 10 days--from entry of the district court's order to file his notice of appeal. See Section 2255 Proceedings Rule 11; Fed. R. App. P. 4(a). Defendant's notice of appeal filed on May 1, 1990 from the district court order entered April 2, 1990 was therefore timely.
On the merits, the Supreme Court's recent decision in United States v. Chapman, No. 90-5744, 59 U.S.L.W. 4530 (May 30, 1991), forecloses Ducote's argument. The Court held that the weight of the carrier medium (and specifically blotter paper) must be used in determining the appropriate sentence for trafficking in LSD. The district court did not err in including the weight of the blotter paper in determining Ducote's sentence.