United States of America, Plaintiff-appellee, v. Thomas Edward Simpson, Defendant-appellant, (94-5201),andrew J. Marini, Defendant-appellant, (94-5202),jacob H. Stamper, Defendant-appellant, (94-5318), 99 F.3d 1140 (6th Cir. 1996)

ORDER

Thomas Edward Simpson (94-5201), Andrew J. Marini (94-5202), and Jacob H. Stamper (94-5318) appeal district court orders granting in part and denying in part their motions for modification of sentence filed pursuant to 18 U.S.C. § 3582(c) (2). All counsel involved in Case Nos. 94-5201 and 94-5202 have waived oral argument, and Stamper is proceeding pro se. Stamper's appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1993, a jury convicted Simpson of three counts of possession with intent to distribute Lysergic Acid Diethylamide (LSD). The district court sentenced Simpson to 63 months of imprisonment and imposed a five year term of supervised release. On appeal, this court affirmed Simpson's conviction and sentence. United States v. Simpson, No. 93-6005, 1994 WL 245582 (6th Cir. June 6, 1994) (unpublished per curiam).

In 1992, Marini pleaded guilty to three counts of possession with intent to distribute LSD. The district court sentenced Marini to 97 months of imprisonment and imposed a four year term of supervised release. Marini's appeal with this court was voluntarily dismissed. (No. 93-5034).

In 1992, Stamper pleaded guilty to six counts of possession with intent to distribute LSD and one count of conspiracy to possess with intent to distribute LSD. The district court sentenced Stamper to 163 months of imprisonment and imposed a five year term of supervised release. On appeal, this court affirmed Stamper's conviction and sentence. United States v. Stamper, No. 93-5065,1993 WL 501572 (6th Cir. Dec. 6, 1993) (unpublished per curiam).

Simpson, Marini, and Stamper subsequently filed motions for modification of sentence in the district court, relying on an amendment to USSG § 2D1.1(c) which retroactively modified the manner in which the amount of LSD is to be determined under the guidelines. The district court granted each motion in part and denied each motion in part. The court reduced Simpson's and Marini's sentences to 60 months of imprisonment and the court reduced Stamper's sentence to 120 months of imprisonment. All three defendants have filed timely appeals. Stamper requests the appointment of counsel.

Upon review, we conclude that the district court properly resentenced Simpson, Marini, and Stamper. The appellants' argument that the district court should have discounted the weight of the carrier medium in calculating their mandatory minimum sentences is without merit. The court properly included the weight of the carrier medium in arriving at the appellants' mandatory minimum sentences. See Neal v. United States, 116 S. Ct. 763, 768-69 (1996). These calculations did not violate the appellants' equal protection or due process rights. United States v. Dimeo, 28 F.3d 240, 241 (1st Cir. 1994).

Accordingly, we deny Stamper's request for counsel and affirm the district court's judgments as to all three defendants, expressly doing so as to Stamper pursuant to Rule 9(b) (3), Rules of the Sixth Circuit.