Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.united States of America, Plaintiff-appellee, v. John Chlumsky, Defendant-appellant, 937 F.2d 617 (10th Cir. 1991)

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U.S. Court of Appeals for the Tenth Circuit - 937 F.2d 617 (10th Cir. 1991) July 5, 1991

Before McKAY and SETH, Circuit Judges, and BROWN,*  District Judge.

ORDER AND JUDGMENT** 

SETH, Circuit Judge.


After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Appellant pled guilty to distributing 970 "dosage units" of lysergic acid ("LSD") in violation of 21 U.S.C. § 841(a) (1). He was sentenced to 120 months imprisonment. On appeal he challenges the weight calculation used by the district court in sentencing to determine the mixture of substances containing LSD. Specifically, appellant argues that the district court misapplied the Sentencing Guidelines by including the weight of the blotter paper used to prepare the "dosage units" in the total weight calculation. Construing 21 U.S.C. § 841 and U.S.S.G. Sec. 2D1.1 in this manner, he claims, violates the due process and equal protection clauses of the Fifth Amendment.

We reject both of appellant's arguments in light of the Supreme Court's decision in Chapman v. United States, 59 U.S.L.W. 4530 (May 30, 1991). First, the Court in Chapman held that when the mixture or substance contains a detectable amount of LSD, the entire mixture or substance is to be weighed when calculating the sentence. Id. at 4531. The Court's ruling is consistent with our decision in United States v. Larsen, 904 F.2d 562, 563 (10th Cir.) ("the weight of the blotter paper was properly considered under the enhanced penalty provisions of Sec. 841(b) (1) (B) (v)").

Second, the Chapman decision specifically rejects appellant's constitutional argument. Citing with approval our decision in United States v. Mendes, 912 F.2d 434 (10th Cir.), the Court found that "Congress had a rational basis for its choice of penalties for LSD distribution." Chapman, 59 U.S.L.W. at 4533. The fact that distributors with varying degrees of culpability could receive the same sentence did not make the penalty scheme unconstitutional. Id.

Accordingly, the decision of the United States District Court for the District of Wyoming is AFFIRMED.

 *

Honorable Wesley E. Brown, United States District Judge for the District of Kansas, sitting by designation

 **

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3