Full opinion text
MEMORANDUM SENTENCING OPINION BENNETT, Chief Judge. In the course of interpreting certain language in 38 U.S.C. § 445, Justice William 0. Douglas observed, “[Common sense often makes good law.” Peak v. United States, 353 U.S. 43, 46, 77 S.Ct. 613, 1 L.Ed.2d 631 (1957). This court believes that common sense also makes good law in the interpretation of 21 U.S.C. § 841, where a defendant’s mandatory minimum sentence for possession of methamphetamine with intent to distribute it under § 841 depends upon whether the court “counts” the weight of over 3,000 grams of a toxic medium or only the 26.2 grams of actual (pure) methamphetamine contained in the medium. The Circuit Courts of Appeals to consider the question are split on the proper interpretation of the mandatory minimum sentencing provisions of § 841 when a medium containing a controlled substance is unusable or unmarketable. However, a majority of those courts has adopted the “unusable/unmarketable rule,” which excludes from the calculation of drug quantity the weight of any medium that prevents the controlled substance from being usable or marketable without further processing. Because this court must not “produce a result demonstrably at odds with the intentions of [a statute’s] drafters,” United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), this court also adopted the “unusable/unmarketable rule” at the defendant’s sentencing hearing and imposed a mandatory minimum sentence of five years based upon the weight of the actual (pure) methamphetamine contained in the toxic medium, rather than the ten-year mandatory minimum sentence, advocated by the government, based upon the weight of the entire toxic medium containing the methamphetamine. The court deems it appropriate to explain in this written ruling why the “plain meaning” of § 841, the rules of statutory interpretation, and the Supreme Court’s reading of the statute as applied to LSD in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), when viewed from a common sense perspective, dictated this court’s conclusion on the complicated question of the applicable mandatory minimum sentence in this case. I. INTRODUCTION A. Factual Background Defendant Jose Oehoa-Heredia and a co-defendant were passengers in a taxicab with Douglas County, Nebraska, license plates and a large advertisement for an Omaha radio station in its back window when the taxicab was stopped by a Trooper with the Iowa State Patrol for speeding on Interstate 29 near Sioux City, Iowa, on October 31, 1999. The driver of the taxicab explained to the State Trooper that he had picked up his two passengers at a bus depot in Omaha, and that they had asked him to drive them to Sioux City, where they said they were going to work in a packing house. Ochoa-Heredia was carrying a resident alien card and his companion had a California driver’s license. When the State Trooper asked Ochoa-Heredia and his companion if they would mind opening their bags, Ochoa-Heredia agreed. The taxicab driver opened the trunk of the vehicle revealing three duffle bags, one brown, one light teal, and one dark teal in color. Ochoa-Heredia identified two of the bags as his, the brown one and the light teal one, but a search of those bags revealed nothing. When the State Trooper started to ask Ochoa-Here-dia another question, Ochoa-Heredia opened the third bag as well, the dark teal one, revealing a cylindrical object, the size and shape of a soda bottle, wrapped in duct tape and Saran Wrap. Ochoa-Heredia denied knowing what the object was and both he and his companion denied ownership of the dark teal bag. However, the taxicab driver asserted that the trunk of the taxicab had been empty before he picked up the two men in Omaha. Upon a search of the dark teal bag, the State Trooper found six more suspicious bottles. A drug dog called to the scene “hit” on the bag in which the suspicious bottles were located and a field test of some of their contents was positive for methamphetamine. Ochoa-Heredia and his companion were then arrested. A crimina^'st in the chemistry section of the Iowa Department of Criminal Investigation (DCI) Criminalistics Laboratory testified at the trial of Ochoa-Heredia’s companion that the bottles contained approximately 20.8 grams of actual (pure) methamphetamine in some sort of medium, but that the total weight of the methamphetamine and the medium was in excess of 3,000 grams. See Trial Transcript, United States v. Huerta-Orozco, No. CR 99-4069, Excerpt of Testimony of Staci Schmeiser, p. 21, l. 7 to p. 23, l. 21; see also Government’s Trial Exhibit 19. The criminalist testified that the results of an initial test of the medium were “consistent with freon,” but that she did not have a standard of freon to run in the laboratory to confirm that analysis. Id. at p. 20, l. 17; see also id. at p. 24, l. 2-12. At Ochoa-Heredia’s sentencing hearing, the parties stipulated on the record that the medium, whether freon or not, was toxic, and that further processing would be required to remove the pure methamphetamine from the medium before the methamphetamine could be used. B. Procedural Background Ochoa-Heredia and his companion were indicted on November 17, 1999, on a one-count indictment charging them with possession of 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine with intent to distribute it. On December 22, 1999, the defendants filed a joint motion to suppress much of the evidence from the traffic stop of the taxicab, including the bottles containing methamphetamine and the unknown medium. On April 18, 2000, the undersigned accepted in part a report and recommendation by a magistrate judge on the defendants’ motion to suppress. Specifically, the undersigned (1) denied the defendants’ motion with respect to all evidence secured as a result of the search of the duffle bag in which the methamphetamine was found; (2) denied the motion with respect to any statements made by the defendants up to the point at which the first bottle containing methamphetamine was found and Ochoa-Heredia’s co-defendant was told to take a seat in the taxicab; but (3) granted the motion as to any statements made by either of the defendants after the first bottle containing methamphetamine was found and Ochoa-Heredia’s co-defendant was told to take a seat in the taxicab. The trial of Ochoa-Heredia and his companion was originally scheduled to begin on July 3, 2000. However, shortly before that trial date, Ochoa-Heredia decided to plead guilty to the offense charged. Ochoa-Heredia pleaded guilty before a magistrate judge on September 14, 2000. The undersigned accepted the magistrate judge’s report and recommendation regarding the guilty plea on October 2, 2000. Ochoa-Heredia’s co-defendant elected to go to trial. After a jury trial that began on October 31, 2000, he was convicted on the offense charged on November 2, 2000. Ochoa-Heredia came on for sentencing pursuant to his guilty plea on December 21, 2000. At the sentencing, the United States withdrew some of its objections to the pre-sentence investigation report (PSIR) prepared by the United States Probation Office and advised the court that the parties had stipulated to a base offense level of 26 and a criminal history category of 1. The government also stipulated that the mixture or substance at issue in Ochoa-Heredia’s offense contained approximately 26.2 grams of actual (pure) methamphetamine. In essence, the government’s remaining objections to the PSIR boiled down to the government’s contention that the mandatory minimum sentence for the offense to which Ochoa-Heredia had pleaded guilty is ten years, while Ochoa-Heredia argued for, and the Probation Office had computed, a mandatory minimum sentence of five years. The difference arose from the government’s contention that the mandatory minimum sen-fence should be based on the weight of the entire mixture or substance in which the methamphetamine was detected, more than 3,000 grams, while Ochoa-Heredia and the Probation Office advocated a mandatory minimum sentence based only on the weight of the actual (pure) methamphetamine contained in the bottles, that is, 26.2 grams. The court concluded at Ochoa-Heredia’s December 21, 2000, sentencing hearing, based on its review of the facts in this case and the legal authorities the court found most persuasive, that the weight of the medium should be excluded from the calculation of Ochoa-Heredia’s mandatory minimum sentence. Therefore, based on a finding that the offense involved approximately 26.2 grams of actual (pure) methamphetamine, the court sentenced Ochoa-Heredia to a mandatory minimum sentence of five years imprisonment pursuant to 21 U.S.C. § 841(b)(l)(B)(viii). The court now commits to writing its rationale for this conclusion on the complicated question of the applicable mandatory minimum sentence in this case. II. LEGAL ANALYSIS The government contends — albeit without the benefit of filing a brief, or even a list of authorities — that, in this case, inclusion of the entire weight of the medium in the bottles is required by the plain language of 21 U.S.C. § 841(b), and that such a reading of the statute is supported by an en banc decision of the Tenth Circuit Court of Appeals. Ochoa-Heredia, however, relies on various decisions of other Circuit Courts of Appeals espousing a “marketability” or “usability” method for determining drug quantity for purposes of mandatory minimum sentences under 21 U.S.C. § 841(b), which excludes from the calculation of drug quantity the weight of any medium that prevents the controlled substance from being usable or marketable without further processing. The parties recognize that there is a split in authority among the Circuit Courts of Appeals to consider the question of the applicability of this “unusable/unmarketable rule” to mandatory minimum sentences, and that the Eighth Circuit Court of Appeals has not settled the question in this Circuit. Therefore, this court must examine authorities on both sides of the split to resolve the question of the appropriate mandatory minimum sentence in this case. A. Suggestions From Supreme Court Precedent Two Supreme Court decisions, Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), and Neal v. United States, 516 U.S. 284, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996), which concerned determination of mandatory minimum sentences for drug trafficking offenses involving LSD, provide some guidance on the question presented here— indeed, some courts hold that they are controlling on the question. Therefore, this court’s analysis begins with the decisions in Chapman and Neal. 1. Chapman In Chapman, the defendants were convicted of selling 10 sheets of blotter paper containing 1,000 doses of LSD in violation of 21 U.S.C. § 841(a). Chapman, 500 U.S. at 455, 111 S.Ct. 1919. Although the LSD alone weighed only about 50 milligrams, the blotter paper in which the LSD was contained weighed 5.7 grams, and the district court’s use of the weight of the blotter paper resulted in a mandatory minimum sentence of five years pursuant to 21 U.S.C. § 841(b)(l)(B)(v). Id. at 455-56, 111 S.Ct. 1919. Before the Supreme Court, the defendants contended that the blotter paper was only a carrier medium, and that its weight should not have been included in the weight of the drug for sentencing purposes. Id. at 456, 111 S.Ct. 1919. The Court rejected the defendants’ argument, holding instead “that it is the weight of the blotter paper containing LSD, and not the weight of the pure LSD, which determines eligibility for the minimum sentence.” Id. at 455, 111 S.Ct. 1919. Because this holding would seem to suggest that, in Ochoa-Heredia’s case, this court must use the weight of the medium containing the methamphetamine to determine the mandatory minimum sentence, not simply the weight of the actual (pure) methamphetamine contained in the medium, as Ochoa-Heredia contends, the Supreme Court’s reasoning in Chapman should be considered in more detail. In Chapman, the Court noted that a pure dose of LSD is such an infinitesimal amount that it must be sold to retail customers in a “carrier,” such as blotter paper, which the user either licks, ingests, or drops in a beverage to release the LSD. Id. at 457, 111 S.Ct. 1919. The defendants argued that § 841(b) should not require the inclusion of the weight of the carrier when computing the appropriate sentence for LSD distribution, on the ground that the words “mixture or substance” in the statute were ambiguous and should not be construed to reach an illogical result, such as lower sentences for wholesalers caught with thousands of doses of LSD in pure form, and hence low weight, versus a minor pusher with few doses in a medium that increased the total weight of the “mixture or substance” past the amount required to trigger a mandatory minimum sentence. Id. at 458, 111 S.Ct. 1919. The Court, however, concluded that the defendants’ reading of the statute was “not a plausible one,” because the statute refers to a “mixture or substance containing a detectable amount,” and, “[s]o long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence.” Id. at 459, 111 S.Ct. 1919. The Court “confirmed” this reading by comparing the mandatory minimum sentencing provision for LSD, heroin, and cocaine, with that for other drugs, such as methamphetamine and PCP: the provision for the first group of controlled substances refers only to a “mixture or substance containing a detectable amount” of the illegal substance, while that for methamphetamine and PCP provides for a mandatory minimum based either on the weight of a “mixture or substance containing a detectable amount” or the weight of the actual (pure) drug involved. Id. Thus, the Court concluded, “Congress knew how to indicate that the weight of the pure drug was to be used to determine the sentence, and did not make that distinction with respect to LSD.” Id. The Court reasoned that, as to LSD, cocaine, and heroin, “Congress clearly intended the dilutant, cutting agent, or carrier medium to be included in the weight of those drugs for sentencing purposes.” Id. at 459-60, 111 S.Ct. 1919. The Court recognized that, “[i]n some cases, the concentration of the drug in the mixture is very low, ... [b]ut, if the carrier is a ‘mixture or substance containing a detectable amount of the drug,’ then under the language of the statute the weight of the mixture or substance, and not the weight of the pure drug, is controlling.” Id. at 460, 111 S.Ct. 1919 (internal citations omitted). Looking next to legislative history, and specifically to the “history of Congress’ attempts to control illegal drug distribution,” the Court found that, in the Anti-Drug Abuse Act of 1986, Pub.L. 99-570, 100 Stat. 3207, “Congress adopted a ‘market-oriented’ approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence.” Id. at 461, 111 S.Ct. 1919 (citing H.R.Rep. No. 99-845, pt. 1, p. 11-12, 17 (1986)). As a result, “Congress set mandatory minimum sentences corresponding to the weight of a ‘mixture or substance containing a detectable amount of the various controlled substances” in 21 U.S.C. §§ 841 (b)(1)(A)(i)— (viii) and (B)(i)-(viii). Id. Congress’s intent, the Court concluded, was for “the penalties for drug trafficking to be graduated according to the weight of the drugs in whatever form they were found — cut or uncut, pure or impure, ready for wholesale or ready for distribution at the retail level. Congress did not want to punish retail traffickers less severely, even though they deal in smaller quantities of the pure drug, because such traffickers keep the street markets going.” Id. (citing H.R.Rep. No. 99-845, pt. 1, p. 12 (1986)). Moreover, in the particular case then before it, the Court concluded that “the blotter paper used in this case, and blotter paper customarily used to distribute LSD, is a ‘mixture or substance containing a detectable amount’ of LSD.” Id. at 461, 111 S.Ct. 1919. The Court found that neither “mixture” nor “substance” is defined in the statute or by common law, and thus, both terms must be given their “ordinary meaning.” Id. at 461-62, 111 S.Ct. 1919. 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.” Webster’s Third New International Dictionary 1449 (1986). A “mixture” may also consist of two substances blended together so that the particles of one are diffused among the particles of the other. 9 Oxford English Dictionary 921 (2d ed.1989). LSD is applied to blotter paper in a solvent, which is absorbed into the paper and ultimately evaporates. After the solvent evaporates, the LSD is left behind in a form that can be said to “mix” with the paper. The LSD crystals are inside of the paper, so that they are commingled with it, but the LSD does not chemically combine with the paper. Thus, it retains a separate existence and can be released by dropping the paper into a liquid or by swallowing the paper itself. The LSD is diffused among the fibers of the paper. Like heroin or cocaine mixed with cutting agents, the LSD cannot be distinguished from the blotter paper, nor easily separated from it. Like cutting agents used with other drugs that are ingested, the blotter paper, gel, or sugar cube carrying LSD can be and often is ingested with the drug. Chapman, 500 U.S. at 462, 111 S.Ct. 1919. The Court rejected the defendants’ suggestion that the dictionary definitions of “mixture” and “substance” should not control, because those definitions could be construed to include carriers such as glass vials or an automobile. The Court concluded that “such nonsense is not the necessary result of giving the term ‘mixture’ its dictionary meaning. The term does not include LSD in a bottle or LSD in a car, because the drug is easily distinguished from, and separated from, such a ‘container,’ ” and no mixing or chemical bonding between the drug and the glass vial or automobile has occurred. Id. at 462-63, 111 S.Ct. 1919. Nor did a straightforward reading of the statute produce an absurd or unjust result requiring application of the rule of lenity, which may only be'invoked to construe an ambiguous statute. Id. at 463, 111 S.Ct. 1919. Finally, the Court rejected various constitutional challenges to the statute, which are not at issue here. Id. at 464-68, 111 S.Ct. 1919. Before considering the impact of Chapman on the present case, it is appropriate to consider its sibling, Neal, and its progeny in the various Circuit Courts of Appeals, where the courts have considered application of Chapman to circumstances involving drugs other than LSD. 2. Neal Like Chapman, the Supreme Court’s decision in Neal v. United States, 516 U.S. 284, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996), involved calculation of the weight of LSD for purposes of sentencing, albeit in a unanimous decision. The critical issue, however, was whether the Court’s interpretation of § 841(b), for purposes of calculating the quantity of LSD applicable to determination of mandatory minimum sentences, as set forth in Chapman, had been changed by a 1993 amendment to the United States Sentencing Guidelines, which revised the method of calculating the weight of LSD for purposes of sentencing under the Sentencing Guidelines. See Neal, 516 U.S. at 285-87,116 S.Ct. 763. The amendment to the Guidelines, effective retroactively, “ [departing from its former approach of weighing the entire mixture or substance containing LSD, ... instructed courts to give each dose of LSD on a carrier medium a constructive or presumed weight of 0.4 milligrams.” Id. at 287, 116 S.Ct. 763 (citing U.S.S.G. § 2Dl.l(c), n. (H), as amended by Amendment 488). On a motion to modify sentence, the defendant in Neal contended that application of the amended Sentencing Guideline to the quantity of LSD in his case reduced the quantity involved well below the amount necessary to impose a ten-year mandatory minimum sentence. Id. The district court, however, read Chapman to require consideration of the weight of the blotter paper used as a carrier medium in the defendant’s case to determine the mandatory minimum sentence, which consequently was ten years, but the district court reduced the defendant’s sentence to the mandatory minimum, because the Sentencing Guidelines no longer authorized a sentence in excess of the ten-year mandatory minimum. Id. at 287-88, 116 S.Ct. 763. On appeal, the Seventh Circuit Court of Appeals, sitting en banc, like the district court, had concluded that “a dual system now prevails in calculating LSD weights in cases like this,” that is, one system for determining the weight for mandatory minimum sentences and another system for determining weight for purposes of setting the sentencing range under the Sentencing Guidelines. Id. at 288, 116 S.Ct. 763. The Supreme Court “granted certiorari to resolve a conflict in the Courts of Appeals over whether the revised Guideline governs the calculation of the weight of LSD for purposes of § 841(b)(1).” Id. The Court in Neal concluded that its determination of the issue was controlled by Chapman: In Chapman, we interpreted the provision of the Act that provided a mandatory minimum sentence of five years for trafficking in an LSD “mixture or substance” that weighed one gram or more, see § 841(b)(l)(B)(v). We construed “mixture” and “substance” to have their ordinary meaning, observing that the terms had not been defined in the statute or the Sentencing Guidelines and had no distinctive common-law meaning. 600 U.S. at 461-462, 111 S.Ct. at 1925-1926. Reasoning that the “LSD is diffused among the fibers of the paper ... [and] cannot be distinguished from the blotter paper, nor easily separated from it,” id., at 462, 111 S.Ct. at 1926, we held that the actual weight of the blotter paper, with its absorbed LSD, is determinative under the statute, id., at 468, 111 S.Ct. at 1929. Neal, 616 U.S. at 289, 116 S.Ct. 763. The Court in Neal rejected the defendant’s assertion that the method approved in Chapman for calculation of mandatory minimum sentences for LSD was no longer appropriate in light of the Sentencing Commission’s amendment to the applicable Sentencing Guidelines. Id. at 289-90, 116 S.Ct. 763. While acknowledging that the Commission’s expertise and the design of the Guidelines may be of potential weight and relevance in other contexts, we conclude that the Commission’s choice of an alternative methodology for weighing LSD does not alter our interpretation of the statute in Chapman. In any event, principles of stare decisis require that we adhere to our earlier decision. Neal, 516 U.S. at 290, 116 S.Ct. 763. More specifically, the Court noted that, although the goal of the Sentencing Guidelines— “ ‘proportional’ ” and “ ‘finely calibrated’ ” sentences — was at odds with the function of mandatory minimum sentences, see id. at 291-92, 116 S.Ct. 763 (quoting United States Sentencing Commission, Special Report To Congress: Mandatory Minimum Penalties In The Federal Criminal Justice System 26 (Aug. 1991)), “the Commission has sought to make the Guidelines parallel to the scheme of § 841(b)(1) in most instances.” Id. (citing U.S.S.G. § 2D.1.1, cmt., n. 10). Moreover, As a general rule, the Commission adopts the same approach to weighing drugs as the statute does: “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 substance.” 1995 USSG § 2Dl.l(c), n. (A); see also 1995 USSG § 2D.1.1, comment., n. 1 (“ ‘Mixture or substance’ as used in this guideline has the same meaning as in 21 U.S.C. § 841, except as expressly provided”); 1987 USSG § 2D1.1, n. * (weighing rule intended to be “[c]onsis-tent with the provisions of the Anti-Drug Abuse Act”). For most narcotics, there will be no inconsistency in the calculations of drug quantities. Neal, 516 U.S. at 292,116 S.Ct. 763. The Court noted that the Commission had found LSD to be an exception, requiring departure from the general rule, if the Sentencing Guidelines were to fulfill their goal to promote proportionate sentencing. Id. Consequently, the Commission had amended the Sentencing Guidelines, for purposes of determining sentencing ranges, to disregard the weight of a “carrier medium” in the calculation of the weight of LSD, and instead, to treat each dose of LSD on a carrier medium as equal to 0.4 mg of LSD. Id. at 293, 116 S.Ct. 763 (citing U.S.S.G. § 201.1(c), n. (H)). The Court expressed its doubt that, in amending the Guideline to provide a presumptive weight for each dose of LSD, the Commission had intended to displace the “actual weight method that Chapman requires for statutory minimum sentences,” id., not least because the Commission had itself observed that “ ‘this approach [for Sentencing Guidelines purposes] does not override the applicability of “mixture or substance” for the purpose of applying any mandatory minimum sentence (see Chapman; § 5Gl.l(b)).’ ” Id. at 294, 116 S.Ct. 763 (quoting 1995 U.S.S.G. § 2D1.1, cmt., backg’d). The Court also concluded that “[t]he Commission’s dose-based method cannot be squared with Chapman.” Id. In these circumstances, we need not decide what, if any, deference is owed the Commission in order to reject its alleged contrary interpretation. Once we have determined a statute’s meaning, we adhere to our ruling under the doctrine of stare decisis, and we assess an agency’s later interpretation of the statute against that settled law. Lechmere, Inc. v. NLRB, 502 U.S. 527, 536-537, 112 S.Ct. 841, 847-848, 117 L.Ed.2d 79 (1992); Maislin Industries, U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 131, 110 S.Ct. 2759, 2768, 111 L.Ed.2d 94 (1990). Neal, 516 U.S. at 295, 116 S.Ct. 763. Consequently, the Court held “that § 841(b)(1) directs a sentencing court to take into account the actual weight of the blotter paper with its absorbed LSD, even though the Sentencing Guidelines require a different method of calculating the weight of an LSD mixture or substance,” thus affirming the judgment of the Seventh Circuit Court of Appeals, which had recognized a “dual system” for determining drug quantity in LSD cases. Id. at 296, 116 S.Ct. 763. Neal thus suggests, first, that the “actual weight” method established in Chapman, which considers the weight of the medium in which a detectable amount of a controlled substance is found in calculating the weight of the drug, is controlling for purposes of determining a mandatory minimum sentence under § 841(b), at least for LSD, whatever different or contrary method may be established by the Sentencing Guidelines. Second, Neal stands for the proposition that a “dual system” for calculation of drug quantity may obtain, and in fact does obtain for LSD: The Chapman method applies to determinations of quantity for purposes of statutory mandatory minimum sentences, while any different or contrary method of determining drug quantity under the Sentencing Guidelines applies only to determination of sentencing range. The present dispute over the weight of methamphetamine for purposes of a mandatory minimum sentence plays out in the context of the decisions in Chapman and Neal, although both of those cases involved LSD on an ingestible “carrier,” while the present case involves methamphetamine contained in a toxic medium from which the methamphetamine could only be retrieved and made usable by further processing. Thus, the question presented here is whether these factual distinctions make a difference in the way this court should calculate the weight of methamphetamine involved for purposes of determining Ochoa-Heredia’s mandatory minimum sentence. That question is also presented in a different context than it was in Chapman. After the Supreme Court’s decision in Chapman, the United States Sentencing Commission amended U.S.S.G. § 2D1.1, effective November 1, 1993, to redefine “mixture or substance” for purposes of the Sentencing Guidelines to exclude “materials that must be separated from the controlled substance before the controlled substance can be used.” See, e.g., United States v. Jackson, 115 F.3d 843, 846 (11th Cir.1997). The amended application note, in its entirety, now states the following: “Mixture or substance” as used in this guideline has the same meaning as in 21 U.S.C. § 841, except as expressly provided. Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used. Examples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from an illicit laboratory used to manufacture a controlled substance. If such material cannot readily be separated from the mixture or substance that appropriately is counted in the Drug Quantity Table, the court may use any reasonable method to approximate the weight of the mixture or substance to be counted. An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other, non-countable material in an unusually sophisticated manner in order to avoid detection. Similarly, in the case of marihuana having a moisture content that renders the marihuana unsuitable for consumption without drying (this might occur, for example, with a bale of rain-soaked marihuana or freshly harvested marihuana that had not been dried), an approximation of the weight of the marihuana without such excess moisture content is to be used. U.S.S.G. § 2D1.1, application note 1. The Sentencing Commission expressly made this amendment retroactive. U.S.S.G. § lB1.10(c). The Sentencing Commission explained that, in promulgating the amendment, it was addressing the “inter-circuit conflict regarding the meaning of the term ‘mixture or substance’ as used in § 2D1.1 by expressly providing that this term does not include portions of a drug mixture that have to be separated from the controlled substance before the controlled substance can be used.” U.S.S.G., App. C, amend. 484; see also Jackson, 115 F.3d at 846. Although the government never asserted such a contention, the court nonetheless recognizes that Neal could be read to support the conclusion that this amendment to the Sentencing Guidelines, like the amendment to the Guidelines provisions governing determination of quantity of LSD for Guidelines sentencing purposes, cannot supplant the Supreme Court’s interpretation in Chapman of the terms “mixture or substance” in the statute defining mandatory minimum sentences. See Neal, 516 U.S. at 295-96, 116 S.Ct. 763. However, for further guidance on the question of whether distinctions in the controlled substance, toxicity of the medium, and circumstances of a new definition of “mixture or substance” for Guidelines sentencing purposes make a difference to the determination of Ochoa-Heredia’s statutory mandatory minimum sentence, this court turns to interpretations by the Circuit Courts of Appeals of the impact of Chapman and Neal on mandatory minimum sentences for controlled substances, especially controlled substances other than LSD. B. Decisions Of The Circuit Courts Of Appeals 1. Eighth Circuit precedent This court would be remiss if it did not first consider what, if any, guidance concerning the applicability of the “unusable/unmarketable rule” to mandatory minimum sentence determinations can be drawn from Eighth Circuit precedent. The nearest approach by the Eighth Circuit Court of Appeals to the issue presented here, as Ochoa-Heredia points out, is in United States v. Dierling, 131 F.3d 722 (8th Cir.1997), cert. denied sub nom. Younger v. United States, 523 U.S. 1054, 118 S.Ct. 1379, 140 L.Ed.2d 525 (1998). In that case, Younger argue[d] that the court erred by partially basing his sentence on 300 grams of a substance containing methamphetamine that was found in a jar seized during a stop of his vehicle and on other seized substances containing methamphetamine. Younger contends that these substances were only 0.5% methamphetamine and were therefore undistributable or unmarketable under United States v. Jennings, 945 F.2d 129 (6th Cir.1991), amended on other grounds, 966 F.2d 184 (6th Cir.1992), cert. denied, 519 U.S. 975, 117 S.Ct. 411, 136 L.Ed.2d 324 (1996), and United States v. Jackson, 115 F.3d 843 (11th Cir.1997). The methamphetamine in Jennings likely contained uningestible, poisonous by-products, and Jackson held that only “usable” or “marketable” amounts of controlled substances should be counted for sentencing. 115 F.3d at 846-48. Dierling, 131 F.3d at 737. Thus, the Eighth Circuit Court of Appeals was presented with the question now before this court. However, the court in Dierling found that it was “not necessary to consider whether the marketability test should apply in this circuit.” Id. at 737 n. 10. This was so, because “[ajppellants have not presented evidence that the contents of the jar or any of the methamphetamine introduced at trial was tainted or unmarketable.” Id. at 737. The court noted that the defendant “argued at his sentencing hearing that the jar contained waste water left over from the manufacture of methamphetamine, [but] he d[id] not make that argument on appeal.” Id. at 737 n. 9. In the absence of a supporting factual basis for applying what it called “the marketability test,” the Eighth Circuit Court of Appeals resolved the weight issue as follows: The guidelines specify that 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 substance.” USSG § 2Dl.l(c). (n. *) (Drug Quantity Table). Since 0.5% is a detectable amount, the guidelines require that the drug calculations include the methamphetamine Younger challenges. See United States v. Smith, 49 F.3d 362, 367 (8th Cir.) (plain meaning of the guidelines is controlling), cert. denied, 514 U.S. 1131, 115 S.Ct. 2009, 131 L.Ed.2d 1008 (1995). Dierling, 131 F.3d at 737. Thus, Dierling does not resolve, or even particularly guide, this court’s analysis, with the exception that the factual basis for consideration of the question, which was absent in Dier-ling, is present here, because the parties have stipulated that the medium in the bottles in Ochoa-Heredia’s case is indeed toxic, and hence the methamphetamine is unmarketable without further processing. Unfortunately, just as Dierling does not provide specific guidance on the question that now confronts this court, no other decisions of the Eighth Circuit Court of Appeals do either. In United States v. Warren, 149 F.3d 825 (8th Cir.1998), the court recognized the general principle that Chapman controls the interpretation of the weight of drugs for mandatory minimum sentencing purposes, but the issue before the court in Warren concerned a typographical error in the statutory provisions determining mandatory minimum sentences for methamphetamine. See Warren, 149 F.3d at 827. Similarly, two decisions of the Eighth Circuit Court of Appeals only follow the rule for LSD cases that was later confirmed in Neal, i.e., that a “dual system” for determining quantity in such cases exists, one for mandatory minimum sentencing purposes, and one for Guideline sentencing purposes. See United States v. Van Thournout, 100 F.3d 590, 596 (8th Cir.1996) (considering the “ambiguity” on the question of the applicable method of determining weight of LSD for purposes of determining mandatory minimum sentences after Chapman and an amendment to U.S.S.G. § 2D1.1, amendment 488, and finding that the issue had been decided for the circuit in United States v. Stoneking, 60 F.3d 399, 402 (8th Cir.1995), cert. denied, 516 U.S. 1119, 116 S.Ct. 926, 133 L.Ed.2d 855 (1996)). Because the Eighth Circuit Court of Appeals has not addressed the question now before the court, nor, this court finds, has it addressed similar issues in such a way that this court can draw guidance from its decisions, this court must turn to decisions from other Circuit Courts of Appeals, in which the issue has been decided, for guidance. 2. Richards and plain meaning The court will begin its consideration of pertinent decisions of the other Circuit Courts of Appeals with the decision upon which the government specifically relies, the majority opinion in the en banc decision of the Tenth Circuit Court of Appeals in United States v. Richards, 87 F.3d 1152 (10th Cir.) (en banc), cert. dismissed, 519 U.S. 1003, 117 S.Ct. 540, 136 L.Ed.2d 396 (1996). This approach seems appropriate, notwithstanding that it lands the court in the middle of the split among the Circuits, chronologically, as well as analytically. First, beginning with the decision in Richards seems justified, because that decision effectively lays out the government’s position here, particularly in the absence of a brief from the government. Second, the decision in Richards also identifies what the Tenth Circuit Court of Appeals took to be the positions of several of the other Circuit Courts of Appeals on this critical issue. Third, the decision in Richards squarely addresses the question of the applicability of the “unusable/unmarketable rule,” as embodied in U.S.S.G. § 2D1.1, application note 1, to mandatory minimum sentences under 21 U.S.C. § 841(b). Prior to the amendment to U.S.S.G. § 2D1.1, application note 1, as the discussion to follow will show, courts were not always entirely clear about whether or not they were considering the applicability of the “unusable/unmarketable rule” to determination of mandatory minimum sentences or to Guidelines sentencing ranges. a. The majority decision In Richards, Judge Baldock, writing for a majority of the en banc court, set out both the issue and its resolution in the first paragraph of his opinion: This case requires us to determine whether a combination of liquid by-products and methamphetamine constitute a “mixture or substance containing a detectable amount of methamphetamine” for purposes of sentencing under 21 U.S.C. § 841(b). Applied to the facts, we must decide whether thirty-two kilograms of liquid by-products containing methamphetamine, or twenty-eight grams of pure methamphetamine alone, should be used to calculate Defendant Larry D. Richards’ sentence under § 841(b). We conclude that the plain language of § 841(b), and Supreme Court precedent, require us to use the entire thirty-two kilogram weight of the methamphetamine and liquid by-product mixture to calculate Defendant’s sentence. Richards, 87 F.3d at 1153. In Richards, the defendant sought to extract pure methamphetamine from thirty-two kilograms of a liquid mixture, used in the process of synthesizing methamphetamine, which contained 28 grams of pure methamphetamine. Id. However, “[bjefore he was able to do so, law enforcement officials seized the liquid mixture and arrested Defendant.” Id. The defendant pleaded guilty to possession of 1000 grams or more of a liquid mixture containing a detectable amount of methamphetamine with intent to manufacture methamphetamine in powder form. Id. In 1990, “[alp-plying U.S.S.G. § 2D.1 [prior to amendment], the court sentenced Defendant based upon the entire thirty-two kilogram liquid mixture to 188 months imprisonment.” Id.; see also United States v. Richards, 5 F.3d 1369,1370 (10th Cir.1993) (opinion regarding second or successive petition to vacate sentence pursuant to 28 U.S.C. § 2255, identifying the time of the conviction and sentencing). Thereafter, as noted above, the United States Sentencing Commission amended U.S.S.G. § 2D1.1, effective November 1, 1993, to redefine “mixture or substance” for purposes of the Sentencing Guidelines to exclude “materials that must be separated from the controlled substance before the controlled substance can be used.” Id. The defendant in Richards moved to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) on the ground that the amended Sentencing Guideline required the district court to reduce his sentence to the mandatory minimum of five years, based on the amount of pure methamphetamine at issue in his case, excluding the weight of liquid byproducts. Id. at 1153-54. The government argued that the defendant was still subject to a ten-year mandatory minimum, because the amended commentary to U.S.S.G. § 2D1.1 did not alter the statutory definition of “mixture or substance” in 21 U.S.C. § 841(b) for mandatory minimum sentences. Id. at 1154. The district court agreed with the defendant, and a divided appellate panel affirmed. Id. The Tenth Circuit Court of Appeals granted en banc review “to determine whether the Sentencing Commission’s amended construction of ‘mixture or substance’ authoritatively defines the terms ‘mixture or substance’ in § 841, or whether the statutory terms retain their plain meaning as construed by the Supreme Court in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).” Id. The Tenth Circuit Court of Appeals recognized that several Circuit Courts of Appeals had embraced the “marketable” approach asserted by the defendant, under which “the unusable and unmarketable portion of the drug mixtures should be excluded from the calculation of [the defendant’s] statutory sentence.” Id. at 1154-55. The Tenth Circuit Court of Appeals, however, found that it need not interpret for itself the meaning of the terms “mixture or substance” in 21 U.S.C. § 841(b), because “[t]he Supreme Court has authoritatively construed the terms in Chapman.” Id. After reviewing the analysis in Chapman, the Tenth Circuit Court of Appeals summarized that decision as follows: [T]he Supreme Court ruled that both the plain language of the statute and its legislative history demonstrate that the weight of an entire mixture or substance containing a detectable amount of a controlled substance determines a defendant’s eligibility for a mandatory minimum sentence under § 841. Id. at 459-63, 111 S.Ct. at 1924-26. The Court did not rule, however, that only a usable, marketable, or consumable mixture constitutes a “mixture or substance” under § 841. In the Court’s words, “[s]o long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence.” Id. at 459, 111 S.Ct. at 1924. Richards, 87 F.3d at 1156. Moreover, the court in Richards concluded that, in Neal, the Supreme Court had “reaffirmed that Chapman sets forth the governing definition of ‘mixture or substance’ for purposes of § 841,” by holding “that Chapman’s plain meaning interpretation of ‘mixture or substance’ governs the determination of a defendant’s statutory mandatory minimum sentence under § 841, even where the Sentencing Commission adopts a conflicting definition in the sentencing guidelines.” Id. at 1156-57 (citing Neal, 516 U.S. at 294-96, 116 S.Ct. 763). The Tenth Circuit Court of Appeals therefore concluded that “Chapman’s plain-meaning interpretation of ‘mixture or substance’ in § 841 governs our resolution in this case”: Although the Court in Chapman specifically interpreted “mixture or substance” in 21 U.S.C. § 841(b)(l)(B)(v), its interpretation is not limited to that subsection. Under settled canons of statutory construction, we presume that identical terms in the same statute have the same meaning. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479, 112 S.Ct. 2589, 2596, 120 L.Ed.2d 379 (1992); Boise Cascade Corp. v. United States EPA, 942 F.2d 1427, 1432 (9th Cir.1991). Accordingly, the plain meaning of “mixture or substance” governs Defendant’s mandatory minimum sentence calculation under § 841(b). Chapman, 500 U.S. at 461-62, 111 S.Ct. at 1925-26; Neal, 516 U.S. at 292-93, 116 S.Ct. at 768-69. Applying the plain meaning of “mixture,” the methamphetamine and liquid by-products Defendant possessed constitute “two substances blended together so that the particles of one are diffused among the particles of the other.” Chapman, 500 U.S. at 462, 111 S.Ct. at 1926 (citing 9 Oxford English Dictionary 921 (2d ed.1989)). Liquid by-products containing methamphetamine therefore constitute a “mixture or substance containing a detectable amount of methamphetamine” for purposes of § 841(b). Defendant possessed a thirty-two kilogram mixture of methamphetamine and liquid by-products. Thus, Defendant possessed “1 kilogram or more of a mixture or substance containing a detectable amount of methamphetamine.” 21 U.S.C. § 841(b)(l)(A)(viii). Under § 841, Defendant is subject to a mandatory minimum ten-year term of imprisonment. Id. Richards, 87 F.3d at 1157. The majority in Richards rejected the “Defendant’s invitation to define the statute in accord with the Sentencing Commission’s amendment under a ‘congruent’ approach,” because the Sentencing Commission’s amendment of U.S.S.G. § 2D1.1 for purposes of determining Guidelines sentencing range could not override the Supreme Court’s interpretation of the statute establishing mandatory minimum sentences. Id. The majority also rejected the “marketable” approach adopted by several other Circuit Courts of Appeals: Defendant relies on authority from the Second, Third, Sixth, Seventh, and Eleventh Circuits ruling that only usable or marketable portions of drug mixtures constitute “mixtures” for purposes of sentencing under § 841. Acosta, 963 F.2d at 553-54; Rodriguez, 975 F.2d at 1007; Jennings, 945 F.2d at 136-37; Johnson, 999 F.2d at 1196-97; Rolande-Gabriel, 938 F.2d at 1237-38. As we explained in United States v. Killion, 7 F.3d 927 (10th Cir.1993), cert. denied, 510 U.S. 1133, 114 S.Ct. 1106, 127 L.Ed.2d 418 (1994), “[tjhese courts reason that it is logical to include the weight of materials that are marketable or facilitate the marketability of the drug in question, and to exclude the weight of materials that do not.” Id. at 932. The Second Circuit observed, “[vjiewed through a market-oriented prism, there is no difference in culpability between individuals bringing the identical amount and purity of drugs to market but concealing the drugs in different amounts of unusable mixtures.” Acosta, 963 F.2d at 554. In essence, Defendant contends that it is fairest to sentence based only on the marketable or usable portions of drug mixtures defendants bring to the marketplace. Congress, however, did not adopt this approach. One searches in vain to find the words “marketable,” “usable,” or “consumable” in the plain language of § 841 or its legislative history. Congress did not enact these concepts into the statutory scheme. Instead, Congress recognized the reality of the illicit drug market when it stated that a defendant is eligible for a mandatory minimum sentence if the defendant commits a drug offense involving a “mixture or substance containing a detectable amount of’ a controlled substance. In no way did Congress limit § 841 to usable or marketable mixtures containing controlled substances. “Detectable amount,” and not usable, marketable, or consumable, is therefore the hallmark of an § 841 “mixture or substance.” See Chapman, 500 U.S. at 459, 111 S.Ct. at 1924 (“So long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence.”). Hence, as long as the defendant possesses the specified quantity of a “mixture or substance containing a detectable amount of’ a controlled substance, Congress requires a mandatory minimum sentence. Such a broad sentencing scheme may result in sentencing disparities. Policy decisions, however, vest in the legislative branch, not the judicial: “Congress, not this Court, has the responsibility for revising its statutes.” Neal, 516 U.S. at 295, 116 S.Ct. at 769. Accordingly, we reject Defendant’s version of the “marketable” approach. Richards, 87 F.3d at 1157-58. Thus, the majority in Richards held that the defendant was subject to a mandatory minimum sentence based upon the entire 32 kilograms of liquid by-product in which a detectable amount of methamphetamine was found. Id. at 1158. The government urges this court to adopt the view of the majority in Richards and determine the weight of methamphetamine involved in this case, for purposes of determining Ochoa-Heredia’s mandatory minimum sentence, based on the weight of the entirety of the “mixture or substance” in which the methamphetamine was found, that is, by including the weight of the unknown medium, which results in a drug quantity of over 3,000 grams of a mixture or substance containing only 26.2 grams of detectable methamphetamine. However, the reasoning of the dissenters from the majority decision in Richards is also entitled to due consideration. b. The dissenting opinions Two judges joined Chief Judge Seymour in her dissenting opinion in Richards. See Richards, 87 F.3d at 1158 (Seymour, C.J., dissenting, joined by Porfilio, J., and Henry, J.). Like the majority, Judge Seymour wasted no time in laying out the dissenters’ position: The majority bases its construction of 21 U.S.C. § 841(b) upon its determination that the Supreme Court’s ruling in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), governs this case. I agree with that premise, but not with the majority’s reading of Chapman. The majority has divorced the holding in Chapman from its underlying circumstances and rationale, and has applied the holding to produce a result which in this case is directly at odds with that rationale. Because I agree with the majority of my sister circuits addressing the issue that Congress intended its reference to “mixture or substance” in section 841(b) to refer to a marketable or usable mixture, I dissent. Richards, 87 F.3d at 1158. The dissenters reasoned that, in construing statutes, the court was required to “ ‘effectuate the intent reflected in the language of the enactment and the legislative process,’ ” id. (quoting Colorado v. Idarado Mining Co., 916 F.2d 1486, 1494 (10th Cir.1990)), but it was “not required to ‘produce a result demonstrably at odds with the intentions of [a statute’s] drafters.’ ” Id. (quoting United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)) (other internal quotation marks omitted). For that reason, the dissenters noted that “[t]he Court in Chapman looked for Congress’ intent in both the language of 21 U.S.C. § 841 and in its legislative history.” Id. at 1159 (citing Chapman, 500 U.S. at 460-61, 111 S.Ct. 1919). Specifically, The Court found that “Congress adopted a ‘market-oriented’ approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence.” Id. at 461, 111 S.Ct. at 1925 (emphasis added). The Court said: By measuring the quantity of the drugs according to the “street weight” of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the statute ... increased] the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme. This is as true with respect to LSD as it is with respect to other drugs. 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. Id. at 465-66, 111 S.Ct. at 1927-28 (emphasis added). Accordingly, the Court held that “the statute requires the weight of the carrier medium to be included when determining the appropriate sentence for trafficking in LSD.” Id. at 468, 111 S.Ct. at 1929. In my judgment, Chapman’s recognition of Congress’ “market-oriented” approach dictates that we not treat unusable drug mixtures as if they were usable. Here, as the majority points out, defendant pled guilty under 21 U.S.C. § 841(a), (b)(l)(A)(viii) to possession of 1000 grams or more of a liquid mixture containing a detectable amount of methamphetamine with intent to manufacture methamphetamine in powder form. Defendant was not intending to market the waste water, which would have been discarded in the manufacturing process. The waste water was neither a carrier medium for the distribution of methamphetamine nor a cutting agent. Richards, 87 F.3d at 1159 (Seymour, C.J., dissenting). In reaching this conclusion, the dissenters noted that “[f]ive circuits have distinguished between usable and unusable drug mixtures in interpreting ‘mixture’ for purposes of section 841 and U.S.S.G. § 2D1.1.” Id. at 1159-60. The dissenters also noted that “[t]his usable/unusable distinction has been applied by two circuits in the context of methamphetamine in waste water, and by two circuits in the context of cocaine waste water.” Id. at 1160 (internal citations omitted). Moreover, the dissenters reasoned, “[t]his interpretation of ‘mixture or substance’ for statutory purposes also would permit us to refer to the guideline definition and ‘adopt a congruent interpretation of the statutory term as an original matter.’ ” Id. (quoting United States v. Palacio, 4 F.3d 150, 154 (2d Cir.1993)). The dissenters relied on the purpose and authority of the Sentencing Commission as supporting application of the Commission’s interpretation to the statutory provision, and noted further that the Sentencing Commission had specifically and unambiguously excluded the weight of waste water from the measurement of a “mixture or substance” in the amended version of U.S.S.G. § 2D1.1, application note 1. Id. While adopting an interpretation contrary to the Sentencing Commission’s for purposes of determining mandatory minimum sentences will “lead to unnecessary conflict and confusion,” the dissenters concluded that “harmonizing” the interpretations would be more appropriate. Id. “Furthermore, because the statutory mandatory minimum automatically becomes the guideline sentence when it is greater than the maximum of the applicable guideline range, see U.S.S.G. § 5Gl.l(b), allowing waste water to comprise a ‘mixture or substance’ under the statute will effectively nullify the Commission’s policy choice.” Id. at 1160-61. “In light of this persuasive authority, [the dissenters] would hold that section 841 does not include the weight of waste by-products in the measurement of a ‘mixture or substance.’ ” Id. at 1161. Nor did the dissenters find that Chapman was to the contrary, finding a critical difference between a “carrier medium” for LSD and methamphetamine waste water: In deciding to the contrary, the majority relies upon the result in Chapman while rejecting Chapman’s conclusion that this result was the necessary product of Congress’ decision to adopt “a ‘market-oriented’ approach to punishing drug trafficking.” Chapman, 500 U.S. at 461, 111 S.Ct. at 1925. The majority disregards the Supreme Court’s holding that the market approach drove Congress’ drug sentencing scheme and makes it rationally based. See id. at 465-66, 111 S.Ct. at 1927-28. When section 841(b) is examined in light of this approach, it is clear that including a usable LSD carrier medium in the definition of “mixture or substance” furthers that approach, while including methamphetamine waste water does not. Accordingly, I respectfully dissent. Richards, 87 F.3d at 1161 (Seymour, C.J., dissenting). Judge Porfilio, who joined in Chief Judge Seymour’s dissent, added his own separate dissent consisting of the following: I join the dissent of Chief Judge Seymour in all respects. Because I believe the majority has effectively reduced the precept of following the plain language of legislation to a mere shibolith, I write only to remind the court of the wise admonition of Learned Hand that “one of the surest indexes of a mature judiciary [is] not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2nd Cir.), aff'd. 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945). Richards, 87 F.3d at 1161 (Porfilio, J., dissenting). 3. Other circuits and the “unusable/unmarketable rule” As both the majority and the dissenters in Richards acknowledge, all but one of the other Circuit Courts of Appeals to address the question have adopted a rule that, at least for some sentencing purposes, excludes an unusable or unmarketable medium from the determination of the weight of a controlled substance. However, as this court remarked above, the context in which the courts have adopted the rule — whether for purposes of determining mandatory minimum sentences or sentencing ranges under the Guidelines — has not always been clear. See, e.g., United States v. Jackson, 115 F.3d 843, (11th Cir.1997) (asserting that “[t]he marketable or “usable” approach has been adopted by the Second, Third, Fifth, Sixth, Seventh and Ninth Circuits, and rejected by the First and Tenth Circuits,” but not clearly delineating whether the rule was applied to both mandatory minimum sentences and Guidelines sentencing ranges, or only to the latter) (footnote citations omitted). This court finds that, to develop a true understanding of the positions and reasoning of the Circuit Courts of Appeals, it is necessary to determine the precise context in which courts have adopted or rejected application of the “unusable/unmarketable rule.” a. The Tenth Circuit Court of Appeals after Richards Not surprisingly, shortly after the en banc decision in Richards, a panel of the Tenth Circuit Court of Appeals cited Richards for the proposition that “it does not matter whether the substance is usable or marketable,” in holding that a defendant was not prejudiced by his counsel’s stipulation as to the weight of marijuana involved in his offense, including stalks and moisture, a stipulation that apparently-controlled both his mandatory minimum sentence and sentencing range under the Sentencing Guidelines. See United States v. Moreno, 94 F.3d 1453, 1456 (10th Cir.1996). The court in Moreno cited decisions of the Seventh and Eighth Circuit Courts of Appeals as recognizing that “ ‘stalks of the marijuana plant, although excluded from the guideline definition of marijuana, can still constitute part of a “mixture or substance” containing a detectable amount of marijuana for the calculation of weight of the controlled substance seized.’ ” Id. (quoting United States v. Garcia, 925 F.2d 170, 173 (7th Cir.1991), in turn citing United States v. Berry, 876 F.2d 55, 56 (8th Cir.1989)). Thus, despite its minority position, the Tenth Circuit Court of Appeals apparently has adhered to its rejection of the “usability” or “marketability” test in Richards for purposes of determining mandatory minimum sentences. b. The First Circuit Court of Appeals The only other Circuit Court of Appeals to reject application of the “unusable/unmarketable rule” to determination of mandatory minimum sentences is the First Circuit Court of Appeals. In United States v. Mahecha-Onofre, 936 F.2d 623 (1st Cir.), cert. denied, 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991) — a decision rendered before Richards and before the amendment to U.S.S.G. § 2D1.1, which figured prominently in the ar