No. 95-156 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 UNITED STATES OF AMERICA, PETITIONER v. RICHARD LEE MUSCHIK PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ------------------------ Page Break -------------------- TABLE OF CONTENTS Page Opinions below . . . .1 Jurisdiction . . . .1 Statutory provisions and Sentencing Guideline involved . . . . 2 Statement . . . . 3 Reasons for granting the petition . . . .7 Conclusion . . . . 8 Appendix A . . . . 1a Appendix B . . . . 15a Appendix C . . . . 21a Appendix D . . . . 24a Appendix E . . . . 26a Appendix F . . . . 28a TABLE OF AUTHORITIES Cases Chapman v. United States, 500 U.S.453( 1991) . . . 4, 5 Neal v. United States, cert. granted, No. 94-9088 (June 19, 1995) . . . . 7, 8 Statutes and rules: 21 U.S.C. 841(1988 & Supp. V1993) . . .2 . 21 U.S.C. 841(b)(1988 &Supp. V1993) . . . . .2, 4, 5, 6, 7, 8 21 U.S.C. 841(b)(1)(A)(v) . . . . 2, 4 21 U.S.C. 841(b)(1)(B)(v) . . . . 5 21 U. S.C. 846 . . . . 3 21 U. S. C. 851(b) . . . . 4 Sentencing Guidelines (Nov. 1, 1993): 2D1.1 . . . . 4, 5, 6, 7 Commentary . . . . 4-5 2D1.1(c) . . . . 3, 4, 5, 7 5G1.1(b) . . . . 5 MiscelIaneous: United States Sentencing Common, Guidelines Manual (Nov. 1,1993) . . . . 4, 5 (III) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER. TERM, 1995 No. UNITED STATES OF AMERICA, PETITIONER v. RICHARD LEE MUSCHIK PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The Solicitor General, on behalf of the United States, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, la- 14a) is reported at 49 F.3d 512. A prior opinion of the court of appeals (App., infra, 15a-20a) is unreported, but the judgment is noted at 995 F.2d 234 (Table). JURISDICTION The judgment of the court of appeals was entered on February 28, 1995. A petition for rehearing was denied on May 1, 1995. App., infra, 26a-27a. The juris- diction of this Court is invoked under 28 U.S.C. 1254(1). (1) ------------------------ Page Break -------------------- 2 STATUTORY PROVISIONS AND SENTENCING GUIDELINE INVOLVED 1. Section 841 of Title 21, United States Code (1988 & Supp. V 1993) provides, in pertinent part: (a) Unlawful acts *** [I]t shall be unlawful for any person knowingly or intentionally- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.] ***** (b) Penalties * * * [A]ny person who violates subsection (a) of this section shall be sentenced as follows: (l)(A) In the case of a violation of subsection (a) of this section involving * * * ***** (v) 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD); * * * such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life[.] * * * If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment[.] ------------------------ Page Break -------------------- 3 2. Section 846 of Title 21, United States Code, provides: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 3. Sentencing Guidelines 2D1.l(c) n.* (Nov. 1, 1993) provides, in pertinent park "In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the purposes of the Drug Quantity Table." STATEMENT After entering a guilty plea in the United States District Court for the District of Montana, re- spondent was convicted of conspiracy to distribute lysergic acid diethylamide (LSD), in violation of 21 U.S.C. 846, and was sentenced to 20 years' imprison- ment, to be followed by ten years' supervised release. The court of appeals vacated respondent's sentence and remanded for resentencing. App., infra, 2a, 28a. 1. On March 12, 1992, respondent pleaded guilty to conspiracy to distribute LSD, in violation of 21 U.S.C. 846. At a sentencing hearing, the district court determined that respondent's offense involved 14,200 dosage units of LSD, and that the combined weight of the LSD and the blotter paper on which it was carried was 101 grams. Because the offense involved more than ten grams of a "mixture or substance" containing LSD (including the carrier medium), and because respondent had a prior felony conviction for a drug offense, the district court sentenced respondent to a mandatory minimum ------------------------ Page Break -------------------- 4 sentence of 20 years' imprisonment, pursuant to 21 U.S.C. 841(b)(l)(A)(v).1 See Chapman v. United States, 500 U.S. 453, 468 (1991) (Section 841(b) "requires the weight of the carrier medium to be included when determining the appropriate [mandatory minimum] sentence for trafficking in LSD"). The court of appeals affirmed respondent's conviction but remanded for resentencing under the procedures required by 21 U.S.C. 851(b) before a defendant's sentence may be increased based on a prior conviction. App., infra, 15a-20a. 2. On November 1, 1993, before respondent's resen- tencing, the Sentencing Commission amended Guide- lines 2D1.l(c), through Amendment 488, to provide: In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the purposes of the Drug Quantity Table. Guidelines 2D1.I(c) n.* (Nov. 1, 1993); see United States Sentencing Comm'n, Guidelines Manual App. C, at 951 (Nov. 1, 1993). The Commission also amended the background to the commentary on Sec- tion 2D1.1 to explain that its approach "harmonize[d] offense levels for LSD offenses with those for other controlled substances and avoid[ed] an undue influence of varied carrier weight on the applicable ___________________(footnotes) 1 When a drug offense involves ten grams or more of a "mixture or substance containing a detectable amount" of LSD, Section 841(b) (l)(A)(v) requires a minimum sentence of ten years' imprisonment. If a defendant has a prior conviction for a felony drug offense, Section 841(b)(l)(A)(v) requires a mini- mum sentence of 20 years' imprisonment. --------------------- Page Break -------------------- 5 offense level." Guidelines 2D1.1, commentary (back- ground) (NOV. 1, 1993). The Commission further explained, however, that its "approach does not override the applicability of `mixture or substance' for the purpose of applying any mandatory minimum sentence." Ibid. (citing Chapman and Guidelines 5G1.l(b) (Nov. 1, 1993)). Respondent was resentenced on December 6, 1993. Using the standard weight of 0.4 milligrams per dosage unit of LSD set forth in amended Guidelines 2D1.1, the presentence report recalculated the weight of the 14,200 dosage units to be 5.68 grams, which would have resulted in respondent's receiving a mandatory minimum ten-year term of imprisonment under 21 U.S.C. 841(b)(l)(B)(v).z The district court concluded, however, that this Court's decision in Chapman v. United States, supra, rather than the standard weight assigned to doses of LSD in Guide- lines 2D1.1(c), governs the determination of the weight of the LSD for purposes of applying the man- datory minimum sentencing provisions of Section 841(b). App., infra, 24a-25a. Accordingly, based on the combined weight of the LSD and the blotter paper, 101 grams, the district court again sentenced respondent to 20 years' imprisonment. Id. at 21a, 25a. 3. The court of appeals vacated the sentence and remanded for resentencing. App., infra, 1a-14a. The ___________________(footnotes) 2 When a drug offense involves one gram or more of a "mixture or substance containing a detectable amount" of LSD, Section 841(b)(1)(B)(v) imposes a mandatory minimum sen- tence of five years' imprisonment. If a defendant also has a prior conviction for a felony drug offense, Section 841(b)(1)(B)(v) imposes a mandatory minimum sentence of ten years' imprisonment. ---------------------- Page Break -------------------- 6 court of appeals held that the standard weight assigned to doses of LSD in amended Guidelines 2D1.1 also governs the determination of the weight of the "mixture or substance" containing LSD for purposes of applying the mandatory minimum sentencing provisions of Section 841(b). App., infra, 6a-13a. The court acknowledged that, in Chapman, this Court held that Section 841(b) requires the weight of the carrier medium to be included when determining the appropriate sentence under the statute for LSD offenses. App., infra, 5a. The court reasoned, however, that the Sentencing Commission's assign- ment of a standard weight to a dosage unit of LSD is consistent with Chapman's directive to take carrier weight into account because the Sentencing Com- mission had "merely standardized] the amount of [the] carrier medium" that is mixed with the drug. Id. at 9a. The court stated that the Sentencing Commission had chosen the weight of 0.4 milligrams per dose in order to "perpetuate the rationale behind Chapman" (id, at 9a n.6); according to the Sentencing Commission, the LSD accounted for only 0.05 milligrams per dose, and the remaining 0.35 grams represented the weight of the carrier. Ibid. The court also believed that applying the Sentencing Commission's standard weight furthered the "market-oriented" approach to sentencing for drug crimes emphasized in Chapman because "LSD, unlike most other drugs, is not sold by weight but by dose," Id. at 10a. The court noted that Amendment 488 had taken effect only after the Sentencing Commission had transmitted the amended Guideline for review by Congress, which took no action to modify or delay it. ------------------------ Page Break -------------------- 7 Observing that "Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judi- cial decisions might suggest," App., infra, 12a, the court believed that it "should not assume that Con- gress has made conflicting policy decisions regarding LSD weight in the areas of mandatory minimum and Guideline sentencing when those decisions may be so easily harmonized." Ibid. The court thus concluded that using the amended version of Guidelines 2D1.l(c) to determine LSD weight under the mandatory-minimum statutes was consistent with Chapman since "[t]he Commission intended to leave Chapman intact-through the amendment, the Commission merely intended to standardize the amount of carrier medium that can be viewed as `mixed' with LSD." App., infra, 13a. The court rejected the contrary conclusion of four other circuits because that conclusion "results in a dual system of calculating LSD weight." Ibid. REASONS FOR GRANTING THE PETITION This case presents the same issue that is presented in Neal v. United States, cert. granted, No. 94-9088 (June 19, 1995). The issue in both cases is whether the weight assigned to a dose of LSD by the Sen- tencing Commission for purposes of calculating a defendant's offense level under Sentencing Guidelines 2D1.1 also governs the determination of the weight of the "mixture or substance" containing LSD for purposes of applying the mandatory minimum sen- tencing provisions of 21 U.S.C. 841(b). In this case, the Ninth Circuit held that the dosage weight set by Sentencing Guidelines 2D1.1(c) should be used in ------------------------ Page Break -------------------- 8 determining whether respondent should be sentenced to the statutory minimum sentence provided by Section 841(b). The Court granted certiorari in Neal to review a contrary decision of the Seventh Circuit on the same issue. Because the Court's decision in Neal will govern this case, we suggest that the Court hold the petition in this case and dispose of it in light of the decision in Neal. CONCLUSION The petition for a writ of certiorari should beheld pending the decision in Neal v. United States, cert. granted, No. 94-9088 (June 19, 1995), and then disposed of as appropriate in light of the decision in that case. Respectfully submitted. DREW S. DAYS, III Solicitor General JULY 1995 ------------------------ Page Break -------------------- APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 93-30461 D.C. No. CR 91-00072-CCL UNITED STATES OF AMERICA, PLAINTIFF -APPELLEE v. RICHARD LEE MUSCHIK, DEFENDANT-APPELLANT Appeal from the United States District Court for the District of Montana . . [Filed FEB. 28, 1995] OPINION Before: HARLINGTON WOOD, JR .,* PROCTER HUG, JR., and THOMAS TANG, Circuit Judges. Wood, JR., Circuit Judge: Following the Ninth Circuit's remand, Richard Lee Muschik was resentenced on December 6, 1993, to a prison term of twenty years pursuant to the ___________________(footnotes) * The Honorable Harlington Wood, Jr., Senior United States Circuit Judge for the Seventh Circuit, is sitting by designation. (la) ------------------------ Page Break -------------------- 2a mandatory minimum sentence set forth in 21 U.S.C. 841(b)(1)(A). Muschik had been earlier found guilty of escape in violation of 18 U. S. Cl. 751 and pleaded guilty to conspiracy to distribute lysergic acid dieth- ylamide (''LSD'') in violation of 21 U.S.C. 841(a)(l) and 846. In his appeal, Muschik argues that the district court erroneously concluded that ten grams or more of LSD were involved in this case. Muschik contends that the entire weight of the carrier me- dium should not be included when the weight of LSD is calculated. Instead, Muschik argues that the formula set forth in the November 1, 1993 amendment to U.S.S.G. 2D1.l(c) should be used to determine the net weight of LSD involved for sentencing purposes. For the reasons given below, we vacate the sentence imposed by the district court and remand for resen- tencing in accordance with this opinion. I. BACKGROUND Richard Lee Muschik was arrested on May 24, 1991, by the Drug Enforcement Administration ("DEA") pursuant to a Complaint charging him with conspiracy to possess with intent to distribute and actual distribution of LSD in violation of 21 U.S.C. 841(a)(l) and 846. On October 23, 1991, Muschik escaped from federal custody while awaiting trial on the drug charges. Muschik was apprehended again on November 28, 1991, and detained. On January 28,1992, Muschik was convicted of escape in violation of 18 U.S.C. 751. On March 12, 1992, Muschik pleaded guilty to conspiracy to distribute LSD in violation of 18 U.S.C. 841(a)(l) and 846. On May 26, 1992, the district court combined the escape and drug charges for sentencing and then determined that the amount of ------------------------ Page Break -------------------- 3a LSD involved required application of the mandatory minimum provision of 21 U.S.C. 841(b)(l)(A). Pur- suant to this statute, and in light of Muschik's prior state felony drug conviction, Muschik was sentenced to a term of twenty years. Muschik appealed these convictions and the sentence. We affirmed the escape and drug convic- tions, but vacated the district court's sentence and remanded for resentencing in strict compliance with the inquire and inform provisions of 21 U.S.C. 851(b) regarding the enhancement of Muschik's sentence for recidivism. United States v. Muschik, 995 F.2d 234 (9th Cir. 1993). Prior to the district court's resentencing, the U.S. Sentencing Commission amended the Sentencing Guidelines and changed the manner in which the weight of LSD is calculated for sentencing purposes. U.S.S.G. 2D1.l(c) (1993) (as amended by U.S.S.G. app. C, amend. 488 (1993)) ("Amendment 488"). Under the prior method, which includes the entire weight of the carrier medium, it was determined that Muschik possessed 101 grams of LSD. In preparation for re- sentencing, the United States Probation Office recal- culated the weight of this LSD under the amended guidelines, which establish a standard weight of 0.4 milligram per dosage of LSD, and arrived at a weight of 5.68 grams. On December 6, 1993, the district court never- theless resentenced Muschik to a term of twenty years a term of the same length as it had imposed originally. Muschik appeals. ------------------------ Page Break -------------------- 4a II. ANALYSIS We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Conkins, 987 F.2d 564,571 (9th Cir. 1993). The district court's other legal determinations in this regard are also reviewed de novo. United States v. Anderson, 895 F.2d 641,644 (9th Cir. 1990). To the extent that the district court has made any factual determinations, the clearly erroneous stan- dard applies. Id. A. Title 21 U.S.C. 841(b)(1)(A)(v) imposes a man- datory minimum sentence of ten years imprisonment for a violation of 841(a)1 where there is involved "10 grams or more of a mixture or substance containing a detectable amount" of LSD. Section 841(b)(1)(B)(v) imposes a mandatory minimum sentence of five years imprisonment where there is involved "1 gram or more of a mixture or substance containing a detec- table amount?' of LSD. Both sections provide for a ___________________(footnotes) 1 In relevant part, 841(a) provides: "(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . . " Muschik actually pleaded guilty to conspiracy to distribute LSD in violation of 21 U.S.C. 846, but that section states: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. " ------------------------ Page Break -------------------- 5a doubling of the mandatory minimum sentence where the defendant has one or more prior felony drug convictions. Thus, it is obvious that properly deter- mining the weight of LSD involved in a given case is of paramount importance for sentencing purposes. The calculation of LSD weight is difficult, how- ever, because the quantity of the actual drug present in each dose is infinitesimal-the DEA assigns a standard weight for LSD of only 0.05 milligram per dosage unit. To facilitate transportation, distribution and use of LSD, it is commonly dissolved in solvent and then spread upon a medium-usually blotter paper, gelatin, or a sugar cube, This inactive carrier medium typically far outweighs the LSD itself; thus, there exists the potential for wide variances in sentencing based upon nothing more than the happenstance weight of the particular carrier chosen by a given defendant. In Chapman v. United States, 500 U.S. 453, 468 (1991), the Supreme Court held that the term "mix- ture or substance" present in 21 U.S.C. 841(b)(l) includes the entire weight of the carrier medium.z The district court relied upon Chapman to calculate the weight of LSD involved in this case. With the __________________(footnotes) 2 The Chapman Court answered concerns of possible unfairness that may result where variations in the weight of the inert carrier medium cause otherwise similarly situated defendants to receive different sentences by stating Although LSD is not sold by weight, but by dose, and a carrier medium is not, strictly speaking, used to "dilute" the drug, that medium is used to facilitate the distribution of the drug. Blotter paper makes LSD easier to transport, store, conceal, and sell. It is a tool of the trade for those who traffic in the drug, and therefore it was rational for Congress to set penalties based on this chosen tool. Chapman, 500 U.S. at 466. ------------------------ Page Break -------------------- 6a entire weight of the carrier medium thus included, the amount of LSD involved was determined to be 101 grams-well over the ten gram benchmark required for the imposition of the ten year mandatory minimum sentence established by 21 U.S.C. 841(b)(l)(A). In light of Muschik's prior state felony drug conviction, the district court followed 841(b)(l)(A) and doubled the mandatory minimum sentence to twenty years. B. Muschik does not contest the holding of Chapman directly, but instead contends that the November 1, 1993 amendment to 2D1.l(c) of the Sentencing Guidelines compels a recalculation of the weight of the LSD as the amendment postdates both the Chapman decision and the Ninth Circuit's remand for resentencing. Since there is no ex post facto clause problem involved here, as Muschik is certainly not disadvantaged by the amendment, the Guidelines that are in effect upon Muschik's resentencing must be applied. United States v. Fagan, 996 F.2d 1009, 1018 (9th Cir. 1993). The question presented here concerns the actual nature of the changes wrought by the amendment to 2D1.l(c) and the relation of that amendment to Chapman and the mandatory minimum statutes. III. We begin by noting that this precise issue has already been addressed, with differing results, by several other circuits. We find the reasoning of the Eighth Circuit as expressed in United States v. Stoneking, 34 F.3d 651 (1994), a late case not cited to us by the parties, persuasive and herein adopt it for ------------------------ Page Break -------------------- 7a our own.3 Nor did the district court have the benefit of this late case. We reject the contrary result reached by the Seventh, Fifth, Tenth and First Cir- cuits. See United States v. Neal, 46 F.3d 1405 (7th Cir. 1995) (en bane); United States v. Purdue, 36 F.3d 429 (5th Cir.1994); United States v. Mueller, 27 F.3d 494 (10th Cir. 1994); United States v. Boot, 25 F.3d 52 (1st Cir. 1994). A. As an initial matter, it is clear that where a statute and a Guideline conflict, the statute controls.4 There- fore, to grant full effect to Amendment 488, we must find that the amendment does not conflict with the mandatory minimum provisions at issue here. Our review of the amendment, the relevant provisions of the statute, and the policy considerations behind each leads us to conclude that Amendment 488 and the statute do not conflict, As discussed above, the Supreme Court in Chap- man held that the term "mixture or substance" found in 21 U.S.C. 841(b)(l) "requires the weight of the carrier medium to be included when determining the appropriate sentence for trafficking in LSD." Chap- man, 500 U.S. at 468. At the time Chapman was decided, however, neither the Sentencing Guidelines ___________________(footnotes) 3 The Eighth Circuit subsequently vacated the Stoneking opinion and granted an en bane rehearing. As of the date of our decision in this case, the en banc Stoneking opinion has not yet been issued. Regardless of the Eighth Circuit's eventual decision in this case, we remain impressed by the reasoning ex- pressed in the original opinion. 4 See, e.g., U.S.S.G. 5G1.1(b) (1993) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required mini- mum sentence shall be the guideline sentence."). ------------------------ Page Break -------------------- 8a nor 841(b)(l) defined the words "mixture" or "substance." Therefore, the Supreme Court utilized dictionary-supplied definitions.5 The Supreme Court determined that blotter paper fell within its definition of "mixture or substance" because "[t]he LSD crys- tals are inside of the paper, so that they are commin- gled with it, but the LSD does not chemically com- bine with the paper. Thus, it retains a separate existence . . . The LSD is diffused among the fibers of the paper." Id. at 462. One important factor behind the Chapman decision was that the Supreme Court was there presented with only two choices: utilize the negligible net weight of the pure LSD or utilize the gross weight of the pure LSD together with its carrier medium. "Faced with that choice, the Court could only choose the gross weight, in keeping with the fact that the weights of other drugs include dilutants and cutting agents, and in keeping with the market-oriented approach adopted by the Guidelines." Stoneking, 34 F.3d at 654; see also Neal, 46 F.3d at 1414-15 (Ripple, J., dissenting). The advent of Amendment 488 pre- sents a third option: A court may now utilize an assigned rational weight for the calculation of sen- tences. It is our belief that the assignment of a uniform and rational weight to LSD on a carrier medium does not ___________________(footnotes) 5 The Supreme Court found: A "mixture" is defined to include "a portion of matter consisting of two or more components that do not bear a fixed proportion to one another and that however thoroughly commingled are regarded as retaining a separate existence." . . . A "mixture" may also consist of two substances blended together so that the particles of one are diffused among the particles of the other. Id. at 462 (citations omitted). ------------------------ Page Break -------------------- 9a conflict with Chapman, In fact, the background commentary to 2D1.1, as amended by Amendment 488, expressly states that "this approach does not override the applicability of `mixture or substance' for the purpose of applying any mandatory minimum sentence (see Chapman; 5G1.l(b))." Rather than "overriding" Chapman's interpretation of "mixture or substance: the formula set forth in Amendment 488 merely standardizes the amount of carrier medium that can be properly viewed as "mixed" with the pure drug. Chapman held that it was rational to include the weight of the carrier medium for sentencing purposes since that medium facilitates the transportation, storage, concealment, and sale of the drug. Chap- man, 500 U.S. at 466. Amendment 488 accounts for this facilitation by selecting a standard dosage weight eight times the actual weight of the pure LSD6 which simultaneously eliminates the potential for undue sentencing disparities? the existence of ___________________(footnotes) 6 The background commentary to U.S.S.G. 2D1.1, as amended by Amendment 488, makes clear the Sentencing Commission's intent to perpetuate the rationale behind Chapman The dosage weight of LSD selected exceeds the [DEA]'s standard dosage unit for LSD of 0.05 milligram (i.e., the quantity of actual LSD per dose) in order to assign some weight to the carrier medium. Because LSD typically is marketed and consumed orally on a carrier medium, the inclusion of some weight attributable to the carrier medium recognizes . . . the decision in Chapman v. United States, [500 U.S. 453] (1991) (holding that the term "mixture or substance" in 21 U.S.C. 841(b)(1) includes the carrier medium in which LSD is absorbed). 7 For example, before Amendment 488 took effect, a drug trafficker would receive the mandatory minimum sentence of five years for one gram or more of LSD under 21 U.S.C. ------------------------ Page Break -------------------- 10a which even the Chapman Court acknowledged. See Chapman, 500 U.S. at 466. As the Eighth Circuit found, [b]y assigning a sentencing weight per dose that is eight times the actual weight of the pure drug, the Sentencing Commission has determined, in effect, that .05 mg of LSD can be absorbed in, or chemically bonded with, a carrier eight times its weight. Thus, Amendment 488 remains true to the Chapman mandate that the weight of the carrier must be included if the carrier can be said to be bonded with or mixed with the drug. Stoneking, 34 F.3d at 654 (footnote omitted). The framework of Chapman thus remains intact while the theoretical foundation upon which it sits is strengthened. B. Amendment 488 also leaves intact another concern behind the Chapman decision, the maintenance of a "market-oriented" approach to drug sentencing. This approach looks to "the total quantity of what is distributed, rather than the amount of pure drug in- volved . . . to determine the length of the sentence." Chapman, 500 U.S. at 461 (citation omitted). Stand- ardizing the weight value of LSD furthers this market-oriented approach because LSD, unlike most other drugs, is not sold by weight but by dose. The price of a dose of LSD is set without any regard to the weight of carrier medium. Amendment 488 thus furthers the market-oriented approach by hinging sentencing upon the number of doses sold, rather ___________________(footnotes) 841(b) (l)(B) by selling either 1/2 of a sugar cube dose, 72 blotter paper doses, or 445 gelatin capsule doses. See Chapman, 500 U.S. at 458 n.2. ----------------------- Page Break -------------------- 11a than upon the type of medium that happens to be involved. By setting a weight figure eight times higher than the pure drug, the amendment remains true to Chapman by sufficiently recognizing retail realities and adequately punishing retail traffickers. C. The Sentencing Commission also intended for Amendment 488 to correct the pre-amendment situation wherein LSD sentences were dispropor- tionate to those sentences imposed for other, more dangerous substances, such as phencyclidine ("PCP"). [T]he weight per dose selected is less than the weight per dose that would equate the offense level for LSD on a carrier medium with that for the same number of doses of PCP, a controlled substance that comparative assessments indicate is more likely to induce violent acts and ancillary crime than is LSD. (Treating LSD on a carrier medium as weighing 0.5 milligram per dose would produce offense levels equivalent to those for PCP.) Thus, the approach decided upon by the Commission will harmonize offense levels for LSD offenses with those for other controlled substances . . . . U.S.S.G. 2D1.1, comment. (backg'd) (1993) (as amended by Amendment 488). Iv. After Amendment 488 was sent to Congress for review, it took effect without modification or delay, and thus with congressional approval, on November 1, 1993. Such a refinement of the sentencing scheme through the action of the Commission, with the knowledge and consent of Congress, is an expected ------------------------ Page Break -------------------- 12a and necessary element of the process contemplated by the present sentencing system. As the Supreme Court has noted, "in charging the Commission `periodically [to] `review `and revise' the Guidelines, Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest." Braxton v. United States, 500 U.S. 344,348 (1991) (quoting 28 U.S.C. 994(o)). The Commission performed its congressionally dele- gated role by amending 2D1.1 in light of Chapman. Congress did not challenge the revision. We should not assume that Congress has made conflicting policy decisions regarding LSD weight in the areas of mandatory minimum and Guideline sentencing when those decisions may be so easily harmonized. "The judiciary has an obligation to presume that those who sit in the Congress intend that the country be governed by a sentencing system that, although composed of both mandatory minimum sentences and the guideline ranges, operates as an integrated and fair system of criminal justice." Neal, 46 F.3d at 1411 (Ripple, J., dissenting). Those Circuits which reached the opposite result on this issue did so, in our view, after misinterpreting the statement in the amended background com- mentary that "[nonetheless, this approach does not override the applicability of `mixture or substance' for the purpose of applying any mandatory minimum sentence." See, e.g., Neal, 46 F.3d at 1408-09; Pardue, 36 F.3d at 431; Boot, 25 F.3d at 55. As we have endeavored to demonstrate, there is much more to Amendment 488 than this single sentence. Read as a whole, the amended background commentary demon- strates the intent of the Sentencing Commission to ------------------------ Page Break -------------------- 13a lessen the "undue influence" that different carrier weights have on the offense level and to harmonize offense levels for different controlled substances while taking into account Chapman's interpretation of the term "mixture or substance." The Commission intended to leave Chapman intact-through the amendment, the Commission merely intended to standardize the amount of carrier medium that can be viewed as "mixed" with LSD. As discussed in the amended background commentary, the Commission selected a weight value eight times the actual weight of the pure LSD in an express effort to recognize the impact of Chapman on weight calculation. The conclusion reached by the other Circuits results in a dual system of calculating LSD weight-one rule for calculations under the Sentencing Guidelines and another rule for the mandatory minimum statutes. We decline to find that the Commission, whose mission it is to promote uniformity and fairness in sentencing, effectuated such a nonuniform and unfair result. v. By giving effect to Amendment 488 as written, we advance the basic objectives Congress sought to achieve in providing for the development of the Sentencing Guidelines, namely the creation of an effective, fair, and uniform sentencing system. The United States Probation Office recalculated the weight of Muschik's LSD utilizing the standard set forth in the amendment and arrived at a total of 5.68 grams. As this revised figure is more than one gram but less than ten grams, Muschik's mandatory mini- mum sentence will drop to ten years under 21 U.S.C. 841(b)(l)(B) when coupled with Muschik's prior state felony drug conviction. ------------------------ Page Break -------------------- 14a We have also considered the other arguments ad- vanced by appellant and found them to be without merit. VI. CONCLUSION For the reasons set forth above, we VACATE the sentence imposed by the district court and REMAND for resentencing in accordance with this opinion. ------------------------ Page Break -------------------- 15a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NO. 92-30233 D.C. NOS. CR 91-072-01-CCL, CR-91-040-01-CCL UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. RICHARD LEE MUSCHIK, DEFENDANT-APPELLANT [FILED June 11, 1993] MEMORANDUM* Appeal from the United States District Court for the District of Montana Argued and Submitted June 7,1993 Seattle, Washington Before: WRIGHT, FARRIS, and D.W. NELSON, Circuit JUDGES. Muschik appeals his convictions for escape from federal custody, 18 U.S.C. 751, and conspiracy to distribute LSD, 21 U.S.C. 841(a)(l) and 846 and his 20-year mandatory minimum sentence, 21 U.S.C. 841(b)(l)(A). We affirm his convictions but vacate __________________(footnotes) * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by the Ninth Circuit Rule 36-3. ----------------------- Page Break -------------------- 16a his sentence and remand to the district court for strict compliance with 21 U.S.C. 851(b)'s inquire and inform provisions. I Muschik raises numerous issues in this consoli- dated appeal. In his drug case, he argues that (1) his counsel was ineffective, (2) the court erred in denying his motions to sever and to withdraw his plea, (3) the government and the court did not comply with sentence enhancement procedures under 21 U.S.C. 851 and (4) a 20-year sentence is cruel and unusual punishment. In his escape ease, he asserts that the court erred in denying his motion to exclude evidence about his pending drug charges and admitting evidence of his prior convictions. II A. Drug Appeal 1. Ineffective Assistance-of Counsel Generally, we do not address ineffective assis- tance claims on direct appeal. United States v. Laughlin, 933 F.2d 786,788 (9th Cir. 1991). We will do so only when the record is developed sufficiently to permit the issue's resolution or where representation is so inadequate that it obviously interferes with a defendant's Sixth Amendment rights. United States v. Daly, 974 F.2d 1215, 1218 (9th Cir. 1992) (per curiam). This is not one of those rare cases. We decline to address this issue. 2. Denial of Motion to Withdraw Guilty Plea A defendant has no "right" to withdraw a guilty plea and bears the burden of showing a fair and just reason for withdrawal. United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987). We review for an ------------------------ Page Break -------------------- 17a abuse of discretion the district court's denial of Muschik's motion to withdraw his guilty plea. See United States v. Oliveros-Orosco, 942 F,2d 644, 645 (9th Cir. 1991). Muschik made two withdrawal motions, one through his appointed counsel, the other pro se. The court did not abuse its discretion in denying either motion. As to the first, it found that the plea agreement did not require a second interview. It also concluded that Muschik's promise to identify 100 drug dealers if allowed out of prison to work as an informant did not constitute substantial assistance. As to the second motion, the court found that Mus- chik's claims were directly contrary to statements he had made under oath at his change of plea hearing and that he did not challenge the adequacy of the hearing, but simply ignored it. The court concluded correctly that the hearing was adequate and Muschik's plea voluntary. It also found properly that the alleged omissions of his attorney occurred after his plea change. 3. Motion to Sever Because Muschik's plea was unconditional and made knowingly and voluntarily, he has waived any claims of constitutional violations occurring before entry of his plea. See United States v. Cortez, 973 F.2d 764,766-68 (9th Cir. 1992). 4. Failure to Give Proper Notice and to Comply with 21 U.S.C. 851(b) If the government files an information seeking enhanced punishment based on a prior conviction, the court shall after conviction but before pronouncement of sentence inquire of the [defendant] whether he ------------------------ Page Break -------------------- 18a affirms or denies that he has been previously con- victed as alleged in the information, and shall inform him that any challenge to a prior con- viction which is not made before sentence is im- posed may not thereafter be raised to attack the sentence. 21 U.S.C. 851(b) (emphasis added). Congress enacted 851 to fulfill the due process requirement that "a defendant receive reasonable notice and an opportunity to be heard regarding the possibility of an enhanced sentence for recidivism." United States v. Belanger, 970 F.2d 416, 418 (7th Cir. 1992). "[F]ailure to comply with Section 851(b) renders the sentence illegal." United States v. Garrett, 565 F.2d 1065, 1072 (9th Cir. 1977), cert. denied, 435 U.S. 974 (1978). The government relies on United States v. Garcia, 954 F.2d 273 (5th Cir. 1992) and argues that substantial compliance with 851(b)'s inquire and inform requirements should suffice.1 In that case, the court did not inform Garcia of the proper timing of a challenge to his prior convictions. 954 F.2d at 276-77. It did, however, question him about his priors and received his admission that they were his. Id. at 277. Here, the government recognizes that the court did not fulfill either 851(b)'s inquire or inform require- ment. Garcia itself stresses that where "there was a `complete failure to comply with 851(b)' . . . remand[] ___________________(footnotes) 1 The government argues that Muschik's signing of the plea agreement, his acknowledgment at the change of plea hearing that he faced a minimum 20-year sentence, his ad- mission of the conviction during cross-examination in his es- cape trial, his attorney's acknowledgment at sentencing that Muschik faced an enhanced sentence and his failure to comply with the notice provisions of 851(c) constitute substantial compliance. ------------------------ Page Break -------------------- 19a for resentencing `in full compliance with the pro- cedures of the enhancement statute''' is required. Id. We must vacate Muschik's sentence and remand for strict compliance with 851(b).2 5. Cruel and Unusual Punishment Although the argument has been made in similar cases without success, we need not reach it since we vacate the sentence. B. Escape Appeal 1. Denial of Motion in Limine to Exclude Evidence of Underlying Charge Federal Rule of Evidence 403 allows a court to exclude relevant evidence if its probative value is sub- stantially outweighed by unfair prejudice. We review for an abuse of discretion the district court's balan- cing of probative value versus unfair prejudice. United States v. Layton, 767 F.2d 549, 553 (9th Cir. 1985). The court did not err. Evidence regarding the underlying charge was probative of Muschik's possi- ble motive for escaping. The potential of a 20-year mandatory minimum sentence could provide strong incentive to escape. As the court observed, the na- ture of the charges would have been admitted anyway when Muschik testified about the United States Mar- shal's drug dealer statement. Muschik would have no reason to fear the Marshal who made the statement had Muschik not been facing drug charges. The admission of the evidence may have preju- diced him by focusing the jury on the underlying drug ___________________(footnotes) 2 Because we vacate Muschik's sentence we need not address his argument that the government did not comply with 851(a)(1). If an error exists, we assume that it is a cler- ical one, which can be corrected. See 21 U.S.C. 851(a)(1). ----------------------- Page Break -------------------- 20a crime. The danger of unfair prejudice, however, did not substantially outweigh the evidence's probative value. The court instructed the jury that, any evi- dence of other crimes was to be considered only to the extent that it related to the defendant's intent. The court also did not err in reasoning that the jury was entitled to know the type of drug to prevent it from making incorrect, and possibly prejudicial, conclu- sions. 2. Admission of Prior Crimes Although possibly prejudicial, the admission of this evidence was harmless error. United States v. Lui, 941 F.2d 844, 848 (9th Cir. 1991). The remaining evidence overwhelming] y demonstrated Muschik's guilt. Muschik admitted that he was in federal custody at the time of his escape. The government introduced evidence that DEA agents lawfully arrested him and that he did not have permission to leave. He testified that the Lake County jailers told him that he should leave the jail and that they assisted in his escape. He also testified, however, that he and three other inmates grabbed the jailer on duty, handcuffed him, took his keys and escaped. Those are not the actions of someone who has permission to leave. The evidence of his prior crimes was also harmless as to Muschik's duress defense. He did not show an immediate threat or that he surrendered to the proper authorities after attaining a position of safety. See United States v. Beltran-Rios, 878 F.2d 1208,1213-14 (9th Cir. 1989). AFFIRMED in part, VACATED in part and REMANDED. ------------------------ Page Break -------------------- 21a APPENDIX C UNITED STATES DISTRICT COURT DISTRICT OF MONTANA MISSOULA DIVISION [Entered Dec. 6, 1993] JUDGMENT Defendant Richard Lee Muschik having been found guilty of escape in violation of 18 U.S.C. 751 and having pleaded guilty to Count One of a five count indictment charging him in Count One with con- spiracy to distribute a controlled substance in vio- lation of 21 U.S.C. 846, and having appeared before the court for sentencing on December 2, 1993, IT IS THE JUDGMENT OF THE COURT, pursuant to the Sentencing Reform Act of 1984 and 21 U.S.C. 841(b)(l)(A), that Richard Lee Muschik is hereby committed to the custody of the Bureau of Prisons for a term of two hundred forty (240) months. Upon release from incarceration, the defendant shall be placed on supervised release for a term of ten (10) years. Within 72 hours of release from the cus- tody of the Bureau of Prisons, the defendant shall ------------------------ Page Break -------------------- 22a report in person to the probation office in the district to which the defendant is released. While on supervised release, the defendant shall not commit another federal, state, or local crime, shall not illegally possess a controlled substance, shall not own or possess a firearm or other dangerous weapon, shall comply with the standard conditions that have been adopted by this court, and are attached hereto, and shall comply with the following additional con- ditions: 1. Defendant shall provide access to any financial information requested by the United States Probation Office; 2. Defendant shall participate in a program approved by the United States Probation Office for substance abuse, which may include testing to determine if the defendant has reverted to the use of drugs or alcohol; 3. Defendant shall participate in a mental health counseling program as directed by the United States Probation Office; and 4. Defendant shall submit to a search of his person, residence, and/or vehicle at the request of the United States Probation Office. ------------------------ Page Break -------------------- 23a IT IS FURTHER ORDERED that the defendant shall pay to the United States a special assessment of $100, which shall be due immediately. Done and dated this 6 day of December, 1993. /s/ Charles C Lovell CHARLES C. LOVELL United States District Judge ------------------------ Page Break -------------------- 24a APPENDIX D IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION Criminal Docket No. No. 91-40-M-CCL; No. 91-72-M-CCL UNITED STATES OF AMERICA, PLAINTIFF vs. RICHARD LEE MUSCHIK, DEFENDANT TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE CHARLES C. LOVELL UNITED STATES DISTRICT JUDGE Taken at: UNITED STATES COURTHOUSE 301 SOUTH PARK HELENA, MONTANA 59601 DECEMBER 2,1993 [181 ***** THE COURT Very well. Mr. Muschik, do you have anything further that you would like to say? THE DEFENDANT: No, your Honor. THE COURT: Are you ready for the Court to impose sentence? THE DEFENDANT: Yes, I am. ------------------------ Page Break -------------------- 25a THE COURT And Mr. Brooke, is there any reason, legal or otherwise, why sentence ought not be imposed? MR. BROOKE: No, your Honor. THE COURT: The issue before the Court at this point is simply, it seemed to me whether this Court is obligated to follow the ruling of the United States Supreme Court in the Chapman case and whether the Court is obligated to enforce what Congress has enacted as a mandatory minimum sen- tence. And I think the answer to that is that it's the duty of the Court to follow those authorities in this case, under these particular facts. I stated before that I think the sentence imposed was a little bit longer sentence of incarceration than this Court would have imposed without the man- datory minimum. [19] And that remains the case today. But I think the Court is compelled to follow the authority that Congress has laid down and that the Supreme Court of the United States has laid down. And accordingly, it's the judgment of the Court that the defendant is hereby remanded to the custody of the Attorney General for a term of 20 years. And upon release from imprisonment, the defendant will be placed on supervised release for a term of ten years. ***** ------------------------ Page Break -------------------- 26a APPENDIX E UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 93-30461 D.C. No. CR 91-00072-CCL UNITED STATES OF AMERICA, PLAINTIFF-ApPELLEE v. RICHARD LEE MUSCHIK, DEFENDANT-APPELLANT Appeal from the United States District Court for the District of Montana [Filed May 1, 1995] ORDER Before: WOOD,* HUG, and TANG, Circuit Judges. The panel, as constituted in the above case, has voted to deny appellee's petition for rehearing. Judge Hug has voted to reject the suggestion for rehearing en bane, and Judges Wood and Tang have recom- mended rejection of the suggestion for rehearing en bane. ___________________(footnotes) * Honorable Harlington Wood, Jr., Senior United States Circuit Judge for the Seventh Circuit Court of Appeals, sitting by designation. ------------------------ Page Break -------------------- 27a The full court has been advised of the en bane suggestion and no active judge of the court has requested a vote on whether to rehear the matter en bane. Fed. R. App. P. 35(b). The petition for rehearing is DENIED and the suggestion for rehearing en bane is REJECTED. ----------------------- Page Break -------------------- 28a APPENDIX F UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 93-30461 CT/AG#: CR-91-00072-CCL CT/AG#: CR-91-00072-CCL UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. RICHARD LEE MUSCHIK, DEFENDANT-APPELLANT Appeal From the United States District Court for the District of Montana (Missoula). [FILED May 12, 1995] [Mandate Issued May 9, 1995] THIS CAUSE came on to be heard on the Transcript of the Record from the United States District Court for the District of Montana (Missoula) and was duly submitted. ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court, that the judgment of the said District Court in this cause be, and hereby is VACATED and REMANDED for resentencing. Filed and entered February 28, 1995 ------------------------ Page Break -------------------- No. 95-156 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 UNITED STATES OF AMERICA, PETITIONER v. RICHARD LEE MUSCHIK ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED Whether the weight assigned to a dosage unit of LSD by the Sentencing Commission for purposes of calculating a defendant's offense level under Sen- tencing Guidelines 2D1.1 also governs the deter- mination of the weight of the mixture or substance" containing LSD for purposes of applying the man- datory minimum sentencing provisions of 21 U.S.C. 841(b). ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 No. 95-156 UNITED STATES OF AMERICA, PETITIONER v. RICHARD LEE MUSCHIK ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES 1. Respondent contends (Br. in Opp. 2, 6) that the government's petition for a writ of certiorari was untimely because the United States filed a sug- gestion for rehearing en bane in the court of appeals. That contention is incorrect. The United States filed, in a single document, a petition for rehearing with a suggestion for rehearing en bane, and the filing was clearly labeled as both. See Br. in Opp. App. 16a, 18a. That filing was effective as both a petition for rehearing under Rule 40 of the Federal Rules of Appellate Procedure-which tolls the time for filing a petition for a writ of certiorari until the petition for rehearing is denied or a subsequent judgment is entered (see Sup. Ct. R. 13.3; Missouri v. Jenkins, 495 U.S. 33,45-46 (1990))-and a suggestion for rehearing (1) ------------------------ Page Break -------------------- 2 en bane under Rule 35 of the Federal Rules of Appel- late Procedure. Nothing in the Federal Rules of Appellate Proce- dure or the Ninth Circuit Rules precludes the filing of a petition for rehearing with a suggestion for re- hearing en bane in one document, and this Court has noted that parties frequently combine the two pleadings in one document. Missouri v. Jenkins, 495 U.S. at 47 n.16. The Ninth Circuit Rules anticipate that the two pleadings will be combined in one filing; Rule 35-1 states that, "[w]here a suggestion of the appropriateness of a rehearing en bane is made pursuant to FRAP 35(b) as a part of a petition for rehearing, a reference to such suggestion, as well as to the petition for rehearing, shall appear on the cover of the combined petition and suggestion." 9th Cir. R. 35-1 (emphasis added). The advisory committee notes to Ninth Circuit Rule 40-1 differentiate, for the purpose of prescribing the number of copies to be filed, the situation "[w]here a petition for a rehearing does not include a suggestion for a rehearing en bane" from the situation "[w]here a petition for rehearing does include a suggestion for a rehearing en bane." The Ninth Circuit also treated the government's papers in this case as both a petition for rehearing and a suggestion for rehearing en bane. The court of appeals' last order in the case states that "[t]he panel, as constituted in the above case, has voted to deny [the government's] petition for rehearing." Pet. App. 26a (emphasis added). The court therefore recognized that the government had fiIed a petition for panel rehearing under Rule 40. The court's order further states "The petition for rehearing is DENIED and the suggestion for rehearing en bane is REJECTED." Pet. App. 27a. Thus, "the Court of ------------------------ Page Break -------------------- 3 Appeals interpreted and actually treated the [govern- ment's] papers as including a petition for rehearing before the panel." Missouri v. Jenkins, 495 U.S. at 47. The 90-day period for filing a petition for a writ of certiorari runs from the date that the court denied the petition for rehearing, Sup. Ct. R. 13.3, and the petition for a writ of certiorari was filed within that period. 2. Respondent also suggests (Br. in Opp. 7) that this case should be argued in tandem with Neal v. United States, cert. granted, 115 S. Ct. 2576 (1995) (to be argued December 4, 1995), which presents the same issue. The issues have been fully briefed in Neal, in which (contrary to respondent's contention, Br. in Opp. 7), petitioner Neal is represented by counsel. Moreover, the fact that Neal received some benefit from the new LSD Guideline is not central to the government's argument in that case (ibid.). For this case, therefore, it is sufficient that the Court hold the petition pending the decision in Neal and then dispose of the petition as appropriate in light of that decision. ***** For the foregoing reasons, and the reasons set forth in the petition, the petition for a writ of certiorari should be held pending the decision in Neal v. United States, cert. granted, 115 S. Ct. 2576 (1995) and then disposed of as appropriate in light of the decision in that case. Respectfully submitted. DREW S. DAYS, III Solicitor- General OCTOBER 1995