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Weak Cocaine Still Measured by Weight: 5th Cir

By Brett Snider, Esq. on July 24, 2013 | Last updated on March 21, 2019

In a slightly less ludicrous move than returning illegal drugs which aren't strong enough, the Fifth Circuit denied a federal convict who complained that the government shouldn't consider his weak cocaine by weight for sentencing purposes since it is so impure.

David Villarreal argued before Court that it was unreasonable for the district court to use the 5.9 kilograms of 3.2% pure cocaine found in his car because it was "substantially diluted," even though it substantially enhanced his sentence.

Does being a really poor quality drug distributor allow you to reinterpret federal law?

Border Checkpoints and Lousy Coke

Thanks to our nation’s wonderful system of border checkpoints where, other than some Ninth Circuit exceptions regarding electronic privacy, almost everything in a border crosser’s vehicle, person, and effects is open for warrantless search, Villarreal was caught with 8.4 kilos of cocaine.

Two and a half kilos of the seized booger sugar were only .41% pure cocaine, but the district court found that Villarreal was guilty of possessing with intent to distribute the other 5.9 kilos.

The heart of the matter came with the penalty under 21 U.S.C. § 841(b)(1)(A) which assigns a minimum of 10 years and a maximum of life in prison for possession with intent to distribute five or more kilograms of “a mixture or substance containing a detectable amount” of cocaine.

You Mix the Lime With the Cocaine-Nut

The Villarreal court was tasked by the appellant with reviewing the district court’s application of federal law in both sentencing and guilt (the latter by a showing of substantial evidence), but both correspond to the interpretation of the “mixture” portion of the federal statute.

Lucky for the Fifth Circuit, there’s a Supreme Court case directly on point, Chapman v. U.S., in which the Court affirmed that the full weight of a diluted LSD mixture was appropriate in determining guilt and sentencing under § 841(b).

While it’s true that LSD and cocaine are different drugs and diluted or adultered in different ways, the Villarreal Court opined that Chapman instructs a court to consider the “entire mixture” so long as it contains a detectable amount.

Detectable Amount

At an annoyingly definitional level, you could imagine that a detectable amount would be any amount that is detectable by testing equipment, even the very weak .41% cocaine found in the appellant’s car.

However, the chemist in the district court trial testified that even the low 3.2% purity level of the 5.9 kg. of cocaine haunting Villarreal was such that it could “be ingested by a drug consumer,” so the Court had no problem with upholding his conviction based on that weight.

In addition, the comments from the relevant Federal Sentencing Guidelines state that “mixture” means the same as in § 841, and that only “materials that must be separated” before using the drug may be appropriated subtracted from the total weight (e.g. beeswax, fiberglass, etc.)

Since Villarreal’s cocaine was the ready-to-snort variety with no beeswax, the Fifth Circuit upheld his conviction and sentence as in line with federal law.

Bottom Line

Federal punishment schemes which increase by weight can be harsh, but the Congressional scheme isn’t intending to cut slack to drug dealers who dilute their products.

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