TERRI ANN MEITINGER, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-5116

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 4-6) is reported at
901 F.2d 27.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 10, 1990.
 The petition for a writ of certiorari was filed on July 9, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the Sentencing Guidelines apply to a conspiracy that
commenced before, but continued after, the effective date of the
Sentencing Reform Act of 1984.

   2. Whether application of the Sentencing Guidelines to a conspiracy
that commenced before, but continued after, the effective date of the
Sentencing Reform Act of 1984 violates the Ex Post Facto Clause of the
Constitution, Art. I, Section 9, Cl. 3.

   3. Whether the Sentencing Guidelines requirement that the base
offense level for offenses involving Dilaudid be calculated from the
gross weight of the tablets containing the controlled substance,
instead of the net weight of the active ingredients, is consistent
with the Controlled Substances Act.

                               STATEMENT

   Petitioner pleaded guilty in the United States District Court for
the District of Maryland to one count of conspiring to distribute
Dilaudid, in violation of 21 U.S.C. 846.  Petitioner was sentenced
under the Sentencing Guidelines to 97 months' imprisonment, to be
followed by a three-year term of supervised release;  a $50 special
assessment was also imposed.  The court of appeals affirmed.

   1. a. The facts are stipulated in the plea agreement.  See C.A.
App. 31-33.  Between April 1986 and December 1987, petitioner and
seven others conspired to obtain large quantities of Dilaudid through
forged prescriptions and ship it to Chicago, Illinois, for
distribution.  They participated in a traveling "script ring." The
ring obtained the name and DEA registration number of legitimate
physicians who practiced medicine in locations far from those where
the forged prescriptions ("scripts") were passed.  They purchased from
a printer in the area where the "script" was to be passed prescription
blanks using the physician's actual name and DEA number and a false
address, and using as the physician's telephone number the number of
an answering service retained by the conspirators to respond to
inquiries about the prescriptions.  They then forged prescriptions for
100 4-milligram Dilaudid tablets and had them filled in pharmacies
throughout the area.  If a pharmacist called to question a
prescription, the answering service would take a message and a
co-conspirator would return the call, pretending to be the prescribing
physician and confirming the prescription.

   In April 1986, Ronald Jorgenson recruited petitioner for the
conspiracy.  Between April 1986 and December 1987, the conspirators
traveled to more than ten locations, including Maryland.  Petitioner
acted as a forger and as a "walker" who passed the forged
prescriptions at pharmacies.  C.A. App. 31-33.

   Dilaudid, a highly addictive painkiller, is a Schedule II
controlled substance.  /1/ Dilaudid tablets consist of a mixture of
pure drug and inert ingredient.  The government recovered 125 scripts
passed by the conspirators, each for 100 4-milligram Dilaudid tablets.
 /2/ The agreed statement of facts specified that "(a)n unknown but
significant number of scripts were passed but have not yet been
recovered." C.A. App. 33.  The total weight of the tablets represented
by the recovered prescriptions was at least 1125 grams, at least 50
grams of which was pure Dilaudid.  Ibid.

   b. Petitioner was sentenced pursuant to the Sentencing Guidelines.
See generally United States Sentencing Comm'n, Guidelines Manual (Oct.
1987) (Guidelines).  Guideline Section 2D1.1 instructs that
"(c)onsistent with the provisions of the Anti-Drug Abuse Act, if any
mixture of a compound contains any detectable amount of a controlled
substance, the entire amount of the mixture or compound shall be
considered in measuring the quantity" of the drug for purposes of
calculating a base offense level.  See Guidelines Section 2D1.1(a)(3),
at 2.39 n.* (Oct. 1987).  The Guidelines provide for an escalating
base offense level according to the weight of the drug involved;  a
Drug Quantity Table contained in Guideline Section 2D1.1 sets forth
the applicable levels.

   Consistent with the Guidelines, the district court calculated
petitioner's base offense level by considering the gross weight of the
Dilaudid tablets, rather than by considering only the weight of active
ingredients.  After converting the total weight of the tablets into
its heroin equivalent, see Guideline Section 2D1.1, at 2.41
Application Note No. 10, the court determined that petitioner's base
offense level was 32.  /3/ Taking into account the remaining
Guidelines factors, the district court determined that petitioner's
Guidelines range was 97-121 months' imprisonment.  /4/ The court then
imposed the minimum Guidelines sentence.

      The district court rejected petitioner's claim that the Ex

Post Facto Clause barred use of the Guidelines to calculate the
sentence for a conspiracy that took place both before and after the
effective date of the Guidelines.  It also concluded that, in
determining the applicable Guideline, the weight of the tablets,
including the inert ingredients, not just the net weight of the active
ingredients, should be considered.  C.A. App. 64-65.

   2. The court of appeals affirmed.  Pet. App. 4-6.  It held that the
Ex Post Facto Clause did not bar application of the Guidelines to the
total weight of drugs involved in a conspiracy that continued after
the effective date of the Guidelines.  The court reasoned that
conspiracy is a continuing offense and that petitioner pleaded guilty
to a conspiracy that continued through December 1987.  Pet. App. 5-6.
Relying on its decision in United States v. Daly, 893 F.2d 33 (4th
Cir. 1989), the court also held that the district court properly based
the sentence on the gross weight of the Dilaudid tablets, rather than
on the net weight of the active drug.  Pet. App. 6.

                               ARGUMENT

   1. Petitioner contends that the Sentencing Guidelines do not apply
to this case.  Pet. 17-22.  Petitioner also maintains that reading the
Guidelines in that manner avoids Ex Post Facto Clause problems.  Pet.
21-22.

   The text of the Sentencing Reform Act of 1984, as amended, provided
that it would take effect (with certain exceptions not relevant here)
"on the first day of the first calendar month beginning 36 months
after the date of enactment (October 16, 1984)," i.e., November 1,
1987.  The Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II,
ch. II, Section 235(a)(1), 98 Stat. 2031, as amended by the Sentencing
Reform Amendments Act of 1985, Pub. L. No. 99-217, Section 4, 99 Stat.
1728, and the Criminal Law and Procedure Technical Amendments Act of
1986, Pub. L. No. 99-646, 100 Stat. 3599.  /5/ On December 7, 1987,
Congress amended the Act to specify that it "shall apply only to
offenses committed after the taking effect of (the Sentencing Reform
Act)." The Sentencing Act of 1987, Pub. L. No. 100-182, Section 2(a),
101 Stat. 1266.  Interpreting those laws, the courts of appeals have
uniformly held that the Sentencing Reform Act of 1984 and the
Guidelines apply to so-called "continuing" or "straddle" offenses,
i.e., offenses that commenced before, but continued after November 1,
1987.  See, e.g., United States v. Walton, 908 F.2d 1289, 1299-1300
(6th Cir. 1990), cert. denied, No. 96-5626 (Oct. 9, 1990);  United
States v. Pippin, 903 F.2d 1478, 1480-1482 & n.2 (11th Cir. 1990);
United States v. Wayne, 903 F.2d 1188, 1196-1197 (8th Cir. 1990);
United States v. Terzado-Madruga, 897 F.2d 1099, 1123-1124 (11th Cir.
1990);  United States v. Williams, 897 F.2d 1034, 1040 (10th Cir.
1990);  United States v. Sheffer, 896 F.2d 842, 844-845 (4th Cir.
1990), petition for cert. pending, No. 90-5112;  United States v.
Tharp, 892 F.2d 691, 693-695 (8th Cir. 1989);  United States v. Rosa,
891 F.2d 1063, 1068-1069 (3d Cir. 1989);  United States v. Story, 891
F.2d 988, 991-995 (2d Cir. 1989);  United States v. Lee, 886 F.2d 998,
1003 (8th Cir. 1989), cert. denied, 110 S. Ct. 748 (1990);  United
States v. Boyd, 885 F.2d 246, 248 (5th Cir. 1989);  United States v.
White, 869 F.2d 822, 826 (5th Cir.), cert. denied, 109 S.Ct. 3172
(1989).  See also United States v. Thomas, 895 F.2d 51, 57 (1st Cir.
1990);  United States v. Watford, 894 F.2d 665, 670-671 (4th Cir.
1990).  Those cases are consistent with the well settled rule that a
statute increasing the punishment for an offense, such as a
conspiracy, applies to any such offense that continues past the date
of the new statute.  See, e.g., United States v. Borelli, 336 F.2d
376, 386 n.5 (2d Cir. 1964) (Friendly, J.), cert. denied, 379 U.S. 960
(1965), and cases cited at pp. 9-10, infra.  /6/

   Petitioner's reliance on the legislative history of the Sentencing
Act of 1987 is misplaced.  Although the courts of appeals have noted
that there is some conflict in the legislative history, every court
that has examined the legislative history has concluded that the
Sentencing Reform Act of 1984 applies to continuing offenses.  See
United States v. Pippin, 903 F.2d at 1480 n.2;  United States v.
Tharp, 892 F.2d at 693-695;  United States v. Story, 891 F.2d at
994-995.

   There is also no merit to peitioner's Ex Post Facto claim.  The
circuits have uniformly held that application of the Guidelines to a
so-called "continuing" or "straddle" offense does not violate the Ex
Post Facto Clause.  See, e.g., United States v. Walton, 908 F.2d at
1299-1300;  United States v. Pippin, 903 F.2d at 1480-1482;  United
States v. Wayne, 903 F.2d at 1196-1197;  United States v.
Terzado-Madruga, 897 F.2d at 1124;  United States v. Sheffer, 896 F.2d
at 845;  United States v. Tharp, 892 F.2d at 693;  United States v.
Rosa, 891 F.2d at 1068-1069;  United States v. Story, 891 F.2d at 995;
 United States v. Boyd, 885 F.2d at 248;  United States v. White, 869
F.2d at 826.  Those decisions are correct.

   In the sentencing context, the Ex Post Facto Clause prohibits
Congress from enacting a law that "changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime when
committed." Miller v. Florida, 482 U.S. 423, 429 (1987) (quoting
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase,
J.)).  See also Collins v. Youngblood, 110 S. Ct. 2715, 2719 (1990);
Dobbert v. Florida, 432 U.S. 282, 292 (1977).  A conspiracy begins
with the initial agreement to violate the law and continues until all
its objectives are achieved or abandoned.  See Fiswick v. United
States, 329 U.S. 211, 216 (1946);  United States v. Kissel, 218 U.S.
601, 607-609 (1910);  United States v. Dynalectric Co., 859 F.2d 1559
(11th Cir. 1988), cert. denied, 109 S. Ct. 1641 (1989).  Because a
conspiracy is a continuing offense, the courts have consistently held,
before and after the Guidelines became law, that application to a
defendant of law increasing the penalty for a conspiracy that
continues after the effective date of the increase does not violate
the Ex Post Facto Clause.  See, e.g., United States v. Tharp, 892 F.2d
at 693;  United States v. Story, 891 F.2d at 994;  United States v.
Giry, 818 F.2d 120, 135 (1st Cir.), cert. denied, 484 U.S. 855 (1987);
 United States v. Gibbs, 813 F.2d 596, 602 (3d Cir.), cert. denied,
484 U.S. 822 (1987);  United States v. Baresh, 790 F.2d 392, 404 (5th
Cir. (1986);  United States v. Todd, 735 F.2d 146, 150-151 (5th Cir.
1984), cert. denied, 469 U.S. 1189 (1985);  United States v.
Campanale, 518 F.2d 352, 365 (9th Cir. 1975), cert. denied, 423 U.S.
1050 (1976);  Leyvas v. United States, 371 F.2d 714, 717-718 (9th Cir.
1967);  United States v. Borelli, 336 F.2d at 386 n.5;  United States
v. Goldberger, 197 F.2d 331 (3d Cir.), cert. denied, 344 U.S. 833
(1952);  Huff v. United States, 192 F.2d 911, 914-915 (5th Cir. 1951),
cert. denied, 342 U.S. 946 (1952).  Cf. Gryger v. Burke, 334 U.S. 728,
732 (1948) (Ex Post Facto Clause not violated by applying a habitual
criminal law to a defendant who committed one of the predicate
felonies before the statute was enacted).  Petitioner's criminal
conduct continued until December 1987, past the effective date of the
Guidelines.  Accordingly, the Ex Post Facto Clause does not prohibit
applying the Guidelines to this case.

   Finally, this issue is obviously of diminishing importance, since
it relates only to crimes that began before November 1, 1987, but
continued beyond that date.  In the absence of a conflict among the
circuits, this question does not warrant review by this Court.

   2. Petitioner contends that, even if there is no bar to applying
the Sentencing Guidelines to a continuing offense that straddles the
effective date of the Act, the Ex Post Facto Clause precludes use of
conduct occurring before that effective date to calculate the base
offense level under the Guidelines.  Pet. 22-25.  That claim also
lacks merit.

   The courts of appeals uniformly agree that the consideration of
drug quantities involved in transactions that occurred before November
1, 1987, in the calculation of a defendant's base offense level for a
drug offense under the Guidelines does not violate the Ex Post Facto
Clause.  See United States v. Cusack, 901 F.2d 29, 32 (4th Cir. 1990);
 United States v. Terzado-Madruga, 897 F.2d at 1124;  United States v.
Sheffer, 896 F.2d at 845;  United States v. Ykema, 887 F.2d 697, 700
(6th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990);  United States
v. Allen, 886 F.2d 143, 145-146 (8th Cir. 1989).  Cf. Gryger v. Burke,
334 U.S. at 752.  Petitioner points to no case in which a court of
appeals has accepted petitioner's claim.  Instead, petitioner relies
solely on cases deciding the question whether restitution under the
Victim and Witness Protection Act (VWPA) may be imposed for conduct
that occurred before the effective date of the restitution provisions.
 Compare United States v. Oldaker, 823 F.2d 778 (4th Cir. 1987);
United States v. Martin, 788 F.2d 184 (3d Cir. 1986);  and United
States v. Corn, 836 F.2d 889 (5th Cir. 1988), with United States v.
Bortnovsky, 879 F.2d 30 (2d Cir. 1989).  As the Fourth Circuit
explained in United States v. Sheffer, 896 F.2d at 845, those cases
have no application to the question whether the Guidelines apply to
the conduct in a drug conspiracy that straddles the effective date of
the Sentencing Reform Act of 1984.  See also United States v. Ykema,
887 F.2d at 700;  United States v. Allen, 886 F.2d at 145-146.  As
Sheffer explained, restitution is ordered to be paid to identifiable
victims for identifiable losses, whereas a drug conspiracy is "one
unity offense." 896 F.2d at 845.  What is more, the VWPA added
restitution, for the first time, as a possible sentence to be imposed
on a defendant who was sentenced to prison;  under previous law
restitution could only be imposed as a condition of probation.
Compare 18 U.S.C. 3663 (1988) ad 18 U.S.C. 3651 (1982) (repealed).  By
contrast, the Guidelines do not alter the maximum prison term for the
offense of conviction;  they only fix the appropriate range within
that maximum term at which sentence should be imposed for a particular
quantity of drugs.

   Petitioner acknowledges, Pet. 24-25, that even if conduct occurring
before November 1, 1987, could not be used to calculate the Guidelines
base offense level, a district court could nevertheless depart upwards
from the Guidelines range in reliance on that conduct, because such
conduct would be "an aggravating * * * circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines." 18 U.S.C. 3553(b).  Where
such conduct occurs, the courts of appeals have ruled that the
district court may depart from the Guidelines range by analogizing
such conduct to similar circumstances covered by the Guidelines.  See,
e.g., United States v. Davis, No. 89-6194 (10th Cir. 1990);  United
States v. Pearson, 911 F.2d 186 (9th Cir. 1990);  United States v.
Gardner, 905 F.2d 1432, 1445 (10th Cir. 1990);  United States v.
Ferra, 900 F.2d 1057 (7th Cir. 1990).  Thus, it makes no practical
difference to petitioner whether the district court arrived at the
sentence in this case by considering petitioner's pre-November 1,
1987, conduct in calculating the base offense level or in departing
upwards from that level.

   Lastly, this question, like the first one, is also of diminishing
importance, since it relates only to crimes that began before November
1, 1987, but continued beyond that date.  In the absence of a conflict
among the circuits, this question does not warrant review by this
Court.

   3. Finally, petitioner claims that the Guidelines are inconsistent
with the Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207,
in calculating the Guideline range for Dilaudid according to the gross
weight of the tablets rather than according to the net weight of the
active ingredients in the tablets.  Pet. 25-30.  Petitioner points to
no conflict among the circuits, and the court of appeals correctly
held that the Guidelines validly require consideration of the gross
weight of the drugs covered by the forged prescriptions seized by the
government in computing the base offense level.

   As we explained in our Brief in Opposition in Stone v. United
States, No. 90-193, /7/ the courts of appeals have consistently
rejected the claim that a sentence must rest on the net weight of a
pure controlled substance, rather than on the weight of the pure
controlled substance plus the compound or carrier within which it is
contained.  See United States v. Touby, 909 F.2d 759, 772-773 (3d Cir.
1990) (4-methylaminorex ("Euphoria"));  United States v. Marshall, 908
F.2d 1312 (7th Cir. 1990) (en banc) (LSD);  United States v. McKeever,
906 F.2d 129, 133 (5th Cir. 1990) (phenylacetone);  United States v.
Mueller, 902 F.2d 336, 345 (5th Cir. 1990) (methamphetamine);  United
States v. Skelton, 901 F.2d 1204 (4th Cir. 1990) (PCPy, an analog of
PCP);  United States v. Elrod, 898 F.2d 60 (6th Cir. 1990) (LSD),
cert. denied, No. 89-7689 (Oct. 1, 1990);  United States v. Bayerle,
898 F.2d 28 (4th Cir. 1990) (Dilaudid and dolaphine (methadone));
United States v. Bishop, 894 F.2d 981, 985-987 (8th Cir. 1990) (LSD),
cert. denied, No. 89-7708 (Oct. 1, 1990);  United States v. Daly, 883
F.2d 313, 316-318 (4th Cir. 1989) (LSD);  United States v. Taylor, 868
F.2d 125, 127-128 (5th Cir. 1989) (LSD);  United States v. McGeehan,
824 F.2d 677 (8th Cir. 1987) (LSD), cert. denied, 484 U.S. 1061
(1988).  Cf. United States v. Murphy, 899 F.2d 714 (8th Cir. 1990)
(the purity of drugs is not a factor in determining sentence);  United
States v. Butler, 895 F.2d 1016 (5th Cir. 1989) (statute and
Guidelines required sentence based on total weight of 38 1/2 pound
mixture that contained only small amount of methamphetamine);  United
States v. Baker, 883 F.2d 13, 15 (5th Cir.) (same), cert. denied, 110
S. Ct. 517 (1989);  United States v. Whitehead, 849 F.2d 849 (4th
Cir.) (purity of a drug is not a factor), cert. denied, 109 S. Ct. 534
(1988).  Petitioner nonetheless claims that, although consideration of
gross weight is required for the drug offenses specifically enumerated
in 21 U.S.C. 841(b)(1)(A) and 841(b)(1)(B), a different result is
requred for other drug offenses punishable under 21 U.S.C.
841(b)(1)(C).  That contention does not withstand analysis.

   In enacting the Anti-Drug Abuse Act of 1986, Congress provided a
range of escalating minimun and maximum penalties for persons who
commit offenses involving increased weights of "any mixture or
substance containing a detectable amount" of enumerated Schedule I and
II controlled substance.  21 U.S.C. 841(b)(1)(A) and (b)(1)(B).  That
formulation plainly requires consideration of the gross weight of
material containing a controlled substance, not the net weight of the
controlled substance itself.  In so providing, Congress expressly
changed the prior law, which before 1984 imposed penalties based only
on the type of drug involved, rather than on its weight.  21 U.S.C.
841(b) (Supp. III 1985).  /8/ In addition to providing minimum
penalties for offenses involving certain quantities of drugs, Congress
also provided a catchall penalty provision for offenses involving
lesser quantities of Schedule I and II controlled substances.  21
U.S.C. 841(b)(1)(C).  This provision does not specifically describe
the method for calculating the weight of the controlled substances to
be used in sentencing.  Similarly, the penalty provision for offenses
involving Schedule IV controlled substances does not specifically
describe a method for calculating the weight of the controlled
substances.  21 U.S.C. 841(b)(2).

   In implementing the requirements of the Anti-Drug Abuse Act, the
Sentencing Commission's Drug Quantity Table adopts the formulation
that Congress set forth in the Anti-Drug Abuse Act itself;  the entire
weight of a "mixture or substance containing a detectable amount" is
considered.  Thus, the Guidelines provide that "(t)he scale amounts
for all controlled substances refer to the total weight of the
controlled substance.  Consistent with the provisions of the Anti-Drug
Abuse Act, if any mixture of a compound contains any detectable amount
of a controlled substance, the entire amount of the mixture or
compound shall be considered in measuring the quantity." Guidelines
Section 2D1.1(a)(3) Drug Quantity Table, p. 2.39 n.*.  /9/ See also
id. p. 2.47 Application Note No. 10 ("The Commission has used the
sentences provided in, and the equivalences derived from, the statute
(21 U.S.C. Section 841(b)(1)), as the primary basis for the guidelines
sentences").  /10/

   Petitioner's challenge to the Sentencing Commission's approach
draws no support from the text of the Anti-Drug Abuse Act;  rather,
that Act is fully consistent with the Commission's formulation.
Nowhere does the Act require a different method of computing
quantities for offenses under subsection (b)(1)(C) than for other drug
offenses.  Moreover, the Act's structure supports, if not requires,
the Commission's approach of applying a consistent standard to
determining the quantities of a drug involved in an offense, and in
graduating penalties accordingly.

   Dilaudid is a Schedule II narcotic drug, the distribution of which
is punishable under 21 U.S.C. 841(b)(1)(C).  Subsection (b)(1)(C) is
not limited in its reach to the illegal manufacture, possession, or
distribution of pharmaceutical products such as Dilaudid.  Rather,
that provision covers all Schedule I or II controlled substances
offenses except as provided in Sections 841(b)(1)(A), 841(b)(1)(B), or
841(b)(1)(D).  Consequently, the same controlled substances that are
punishable by mandatory minimum sentences under subsections (b)(1)(A)
and (b)(1)(B) when high quantities of total mixtures are involved are
also punishable under subsection (b)(1)(C) when lesser quantities of
total mixtures are involved.  It follows, of course, that the "total
mixture" approach for drugs such as heroin, cocaine, PCP, and LSD must
be applied under subsection (b)(1)(C).  /11/ Since Congress
contemplated that sentences under subsection (b)(1)(C) for at least
some drugs would be based on the total-mixture approach, the
Commission was fully justified in applying that approach to all drug
offenses punishable under subsection (b)(1)(C).  There is no support
in the statute or in its legislative history for requiring two
different methods for calculating the quantity of drugs involved under
the same statutory provision.

   Not only does the Sentencing Commission's approach accord with the
statute, it also provides an eminently sensible approach to
calculating appropriate sentences according to the relative
seriousness of the offense.  Providing for a base offense level
according to the total weight of tablets containing Dilaudid is
consistent with the way that carrier mediums and cutting agents for
other controlled substances are treated.  "Drugs are rarely taken in
undiluted form";  instead, "(t)he active agent is combined with
inactive ones." United States v. Rose, 881 F.2d 386, 388 (7th Cir.
1989).  Dilaudid is no exception.  Although it is true that the weight
of the inert substance may exceed the weight of the pure drug, and
that the same total weight may contain different amounts of pure drug,
that observation applies equally to substances such as heroin and LSD.
 See United States v. Marshall, 908 F.2d at 1316.  The drug offender
himself determines whether to traffic in low dosage or high dosage
tablets;  a large number of low dosage tablets may simply indicate an
intention to reach a larger number of relatively modest users.  The
Sentencing Commission could rationally conclude that the seriousness
of any offense involving a controlled substance is best measured by a
total mixture approach.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   KAREN SKRIVSETH

      Attorney

   OCTOBER 1990

   /1/ Dilaudid (hydromorphone hydrochloride) is a Schedule II
narcotic belonging to the opium family.  See C.A. App. 12, 69-71;  21
C.F.R. 1038.12, 1308.02(e)(1).  The evidence at sentencing indicated
that "like morphine, adequate doses (of Dilaudid) will relieve even
the most severe pain," but brief use may produce some physical
dependence and use for several weeks will result in physical and
psychic dependence.  C.A. App. 70, 71.

   /2/ Petitioner incorrectly implies that only three forged scripts
were passed after November 1, 1987.  Pet. 10.  That assumption is
based on the dates of Counts Six (November 4, 1987), Seven (November
17, 1987), and Eight (November 28, 1987) of the indictment.  In fact,
the government recovered numerous scripts dated on or about those
dates.  There were also scripts dated after November 1, 1987, that
were not charged as substantive counts.  Gov't C.A. Br. 3-4 n.1.  In
any case, even if only three scripts had been passed after that date,
the analysis of the issues would be the same.

   /3/ The government recovered prescription forms for at least 1125
grams of Dilaudid, or the equivalent of 2812.5 grams of heroin.  Under
the Guidelines in effect on the date of the offense and the date of
sentencing, offenses involving between one kilogram and 2.9 kilograms
of heroin or its equivalent have a base offense level of 32.  See
Guidelines App. C, Amdmt. 125 at C.62 (Nov. 1, 1989).

   /4/ Petitioner's Guidelines range was based on an adjusted offense
level of 30 and a Criminal History Category of I.  The adjusted
offense level was derived from a base offense level of 32, with 2
points subtracted under Guidelines Section 3E1.1(a) for acceptance of
responsibility, 2 points added under Guidelines Section 3B1.1(c) for
petitioner's role as an organizer of the criminal activity, and 2
points subtracted as a downward departure from the Guidelines pursuant
to Guidelines Section 5K1.1 and the government's agreement as part of
the plea bargain to recommend such a departure if petitioner made a
good faith effort to provide substantial assistance in the
investigation or prosecution of other offenders.  C.A. App. 35;  Pet.
App. 28.

   /5/ The Senate Report on Section 235(a)(1) explained that:

         The (Act) will apply to any offense or other event occurring
      on or after the effective date.  A sentence imposed before the
      effective date of the guidelines as to an individual imprisoned
      or on probation or parole on that date would not be affected by
      this (Act).  As to an offense committed prior to the effective
      date, the preexisting law will apply as to all substantive
      matters including the imposable sentence.  If a trial occurs or
      a sentence is imposed on or after the effective date for an
      offense committed before the effective date, the procedural and
      administrative provisions of the (Act) will apply except to the
      extent that such provisions are inconsistent with the
      preexisting law.

S. Rep. No. 225, 98th Cong., 1st Sess. 189 (1983).

   /6/ As petitioner points out, Pet. 13, one district court declined
to apply the Guidelines to a continuing offense.  United States v.
Davis, 718 F. Supp. 8 (S.D.N.Y. 1989).  But that case involved
singular circumstances, in which "all the actual narcotics
distribution was committed before November 1, 1987." Id.  at 10.  In
any event, no court of appeals has declined to apply the Guidelines to
a continuing offense.

   /7/ We have provided counsel for petitioner with a copy of that
brief.

   /8/ The House Judiciary Committee explained the rationale for
Congress's decision to change the method by which most controlled
substances were considered for sentencing purposes, from the pure
weight of the controlled substance to the total weight of any "mixture
or substance" containing a detectable amount of a proscribed drug:

      After consulting with a number of DEA agents and prosecutors
      about the distribution patterns for these various drugs, the
      Committee selected quantities of drugs which if possessed by an
      individual would likely be indicative of operating at such a
      high level.  The Committee's statement of quantities is of
      mixtures, compounds or preparations that contain a detectable
      amount of the drug -- these are not necessarily quantities of
      pure substance.  One result of this market-oriented approach is
      that the Committee had not generally related these quantities to
      the number of doses of the drug that might be present in a given
      sample.  The quantity is based on the minimum quantity that
      might be controlled or directed by a trafficker in a high place
      in the processing and distribution chain.

H.R. Rep. No. 845, 99th Cong., 2d Sess., Pt. I, at 11-12 (1986).

   /9/ The reference in the footnote to a "mixture of a compound"
appears to be a typographical error in view of the Commission's use of
the phrase "mixture or compound" in the following clause and next
sentence of the footnote (emphasis added).  This is especially true
since the Anti-Drug Abuse Act, on which the Guidelines provisions is
modeled, is framed in the disjunctive.

   /10/ The recent clarifying amendments to the Guidelines are to the
same effect.  The footnote now accompanying Section 2D1.1's Drug
Quantity Table states:

      Unless otherwise specified, the weight of a controlled substance
      set forth in the table refers to the entire weight of any
      mixture or substance containing a detectable amount of the
      controlled substances.  If a mixture or substance contains more
      than one controlled substance, the weight of the entire mixture
      or substance is assigned to the controlled substance that
      results in the higher offense level.  In the case of a mixture
      or substance containing PCP or methamphetamine, use the offense
      level determined for the entire weight of the mixture or
      substance or the offense level determined by the weight of the
      pure PCP or methamphetamine, whichever is greater.

Guidelines Section 2D1.1, p. 2.45 n.* (1989).

   /11/ Between the effective date of the 1984 Controlled Substances
Penalties Amendments Act of 1984, Pub. L. No. 98-473, title II, ch. 5
(21 U.S.C. 841(b) (Supp. III 1985)), and the effective date of the
1986 Anti-Drug Abuse Act of 1986, Dilaudid penalties, along with the
penalties for all Schedule I or II narcotics drugs that were not
cocaine-related, were expressly dependent on the amount of "a mixture
or substance containing a detectable amount of a (Schedule I or II)
narcotic drug." 21 U.S.C. 841(b)(1)(A) (Supp. III 1985).  Offenses
involving 100 grams or more of such drugs were punishable by a maximum
of 20 years in prison;  lesser quantities were subject to a maximum
sentence of 15 years' imprisonment.  21 U.S.C. 841(b)(1)(B) (Supp. III
1985).  Under the Anti-Drug Abuse Act of 1986, all quantities of
Dilaudid were made subject to a maximum term of imprisonment of 20
years.  21 U.S.C. 841(b)(1)(C).  There is nothing in the legislative
language or history to suggest that Congress intended to alter the
method of calculation of sentences for offenses involving Dilaudid and
other Schedule I and II narcotics drugs from consideration of the
amount of the substance or mixture containing the controlled substance
to consideration only of the net weight of the controlled substance.
On the contrary, the obvious intent was to increase the maximum
penalty for all but the most serious Dilaudid offenses.