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- CHAPMAN ET AL. v. UNITED STATES
- CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
- THE SEVENTH CIRCUIT
- No. 90-5744. Argued March 26, 1991 -- Decided May 30,
- 1991
- A pure dose of the hallucinogenic drug LSD is so small that
- it must be sold to retail customers in a ``carrier'' created by
- dissolving pure LSD and, inter alia, spraying the resulting
- solution on paper. That paper is then cut into ``one-dose''
- squares, which users swallow, lick, or drop into a beverage to
- release the drug. Petitioners were convicted in the District
- Court of selling 10 sheets (1,000 doses) of blotter paper con-
- taining LSD, in violation of 21 U. S. C. 841(a). Section
- 841(b)(1)(B) calls for a5-year mandatory minimum sentence
- for the offense of distributing more than one gram of ``a
- mixture or substance containing a detectable amount'' of
- LSD. Although petitioners' pure LSD weighed only 50 mil-
- ligrams, the court included the total weight of the paper and
- LSD, 5.7 grams, in calculating their sentences, thus requiring
- the impositionof the mandatory minimum sentence. The 5.7
- grams was also usedto determine the base offense level
- under the United States Sentenc-ing Commission Guidelines
- Manual (Sentencing Guidelines). The Court of Appeals
- affirmed, rejecting petitioners' arguments that the carrier
- medium's weight should not be included for sentencing pur-
- poses, and, alternatively, that construing the statute and the
- Sentencing Guide-lines to require the carrier medium's inclu-
- sion would violate the right to equal protection incorporated
- in the Due Process Clause of the Fifth Amendment.
- Held:
-
- 1. The statute requires the weight of the carrier medium to
- be in-cluded when determining the appropriate sentencing
- for trafficking in LSD. Pp. 3-9.
-
- (a) Since the statute refers to a ``mixture or substance
- containing a detectable amount,'' the entire mixture or sub-
- stance is to be weighed when calculating the sentence. This
- reading is supported by the history of Congress' attempts to
- control illegal drug distribution and by the stat-ute's struc-
- ture. Congress knew how to indicate that the weight of a
- pure drug was to be used to determine a sentence, having
- done so with respect to PCP and methamphetamine by pro-
- viding for a mandatory minimum sentence based either on
- the weight of the mixture or sub-stance containing a detect-
- able amount of the drugs, or on lower weights of the pure
- drugs. And Congress clearly intended the dilutant, cutting
- agent, or carrier medium of heroin and cocaine to be includ-
- ed in those drugs' weight for sentencing purposes. Pp. 3-7.
-
- (b) The blotter paper used here, and blotter paper cus-
- tomarily used to distribute LSD, is a ``mixture or substance
- containing a detectable amount'' of LSD. Since neither the
- statute nor the Sentencing Guide-lines define ``mixture,''
- and it has no established common law meaning, it must be
- given its ordinary meaning, see Moskal v. United States, 498
- U. S. ---, ---, which is ``a portion of matter consisting of two
- or more components . . . that however thoroughly commin-
- gled are regarded as retaining a separate existence,''
- Webster's Third New International Dic-tionary. The LSD
- crystals left behind when the solvent evaporates are inside of
- the paper, so they are commingled with it, but the LSD does
- not chemically combine with the paper and, thus, retains a
- separate ex-istence. Using the dictionary definition would
- not allow the clause to be interpreted to include LSD in a
- bottle or in a car, since, unlike blotter paper, those con-
- tainers are easily distinguished and separated from LSD. Nor
- is there a reason to resort to the rule of lenity to construe
- the statute in petitioners' favor, since a straightforward read-
- ing of 841(b) does not produce a result so absurd or glaring-
- ly unjust as to raise a rea-sonable doubt about Congress' in-
- tent. Pp. 7-9.
-
- 2. This statutory construction is not unconstitutional.
- Determining the lengths of sentences in accordance with the
- LSD carrier's weight is not arbitrary and, thus, does not
- violate due process. The penalty scheme is intended to pun-
- ish severely large-volume drug traffickers at any level, and it
- increases the penalty for such persons by measuring the
- quantity of the drugs according to their street weight in the
- diluted form in which they are sold, not their active
- component's net weight. Thus, it was rational for Congress
- to set penalties based on the weight of blotter paper, the
- chosen tool of the trade for those trafficking in LSD.
- Congress was also justified in seeking to avoid arguments
- about the accurate weight of pure drugs which might have
- been extracted from the paper if it had chosen to calibrate
- sentences according to that weight. And, since the paper
- seems to be the carrier of choice, the vast majority of cases
- will do exactly what the sentencing scheme was designed to
- do -- punish more heavily those who deal in larger amounts
- of drugs. That distributors with varying degrees of culpabili-
- ty might be subject to the same sentence does not mean that
- the penalty system for LSD distribu-tion violates due pro-
- cess. Moreover, the fact that there may be plausi-ble argu-
- ments against describing blotter paper impregnated with LSD
- as a ``mixture or substance'' containing LSD does not mean
- that the stat-ute is unconstitutionally vague, especially since
- any debate would center around the appropriate sentence,
- not the conduct's criminality, and since all but one of the
- courts that have decided the issue have held that the carrier
- medium's weight must be included in determining the
- appropri-ate sentence. Pp. 10-14.
- 908 F. 2d 1312, affirmed.
-
-
- CHAPMAN v. UNITED STATES
-
- Syllabus 107
-
- REHNQUIST, C. J., delivered the opinion of the Court, in
- which WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY,
- and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opin-
- ion, in whic h MARSHALL, J., joined.
- -- [rbj@uunet 1] stty sane unk-
- nown mode: sane
-
-
-
- SUPREME COURT OF THE UNITED
-
- 90-5744 -- DISSENT
-
- CHAPMAN v. UNITED STATES 131
-
- STATES
-
- No. 90-5744
-
-
-
- RICHARD L. CHAPMAN, JOHN M. SCHOENECKER
- AND PATRICK BRUMM, PETITIONERS v.
- UNITED STATES
- ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
- APPEALS FOR THE SEVENTH CIRCUIT
-
- [May 30, 1991]
-
-
- JUSTICE STEVENS, with whom JUSTICE MARSHALL joins,
- dissenting.
-
- The consequences of the majority's construction of 21 U.
- S. C. 841 are so bizarre that I cannot believe they were in-
- tended by Congress. Neither the ambiguous language of the
- statute, nor its sparse legislative history, supports the in-
- terpretation reached by the majority today. Indeed, the
- majority's construction of the statute will necessarily produce
- sentences that are so anomalous that they will undermine the
- very uniformity that Congress sought to achieve when it
- adopted the Sentencing Guidelines.
-
- This was the conclusion reached by five Circuit judges in
- their two opinions dissenting from the holding of the majori-
- ty of the Court of Appeals for the Seventh Circuit sitting en
- banc in this case.
-
- ***BEGIN FOOTNOTE 16***
- ``[T]he use of sentencing guidelines and policy statements
- will assure that each sentence is fair as compared to all other
- sentences.'' Ibid.
- ***END FOOTNOTE 16***
-
- In one of the dissenting opinions, Judge Cummings pointed
- out that there is no evidence that Con-gress intended the
- weight of the carrier to be considered in the sentence deter-
- mination in LSD cases, and that there is good reason to be-
- lieve Congress was unaware of the inequita-ble consequences
- of the Court's interpretation of the statute. United States v.
- Marshall, 908 F. 2d 1312, 1327-1328 (CA7 1990). As Judge
- Posner noted in the other dissenting opin-ion, the severity of
- the sentences in LSD cases would be com-parable to those in
- other drug cases only if the weight of the LSD carrier were
- disregarded. Id., at 1335.
-
- If we begin with the language of the statute,
-
- ***BEGIN FOOTNOTE 2***
- See United States v. Turkette, 452 U. S. 576, 580 (1981) (``In
- determin-ing the scope of a statute, we look first to its
- language'').
- ***END FOOTNOTE 2***
-
- as did those judges who dissented from the Seventh
- Circuit's en banc de-cision, it becomes immediately apparent
- that the phrase ``mixture or substance'' is far from clear. As
- the majority notes, neither the statute
-
- ***BEGIN FOOTNOTE 3***
- The statutory definitional section applicable to 841, 21 U. S.
- C. 802, does not define ``mixture or substance.''
- ***END FOOTNOTE 3***
-
- nor the Sentencing Guidelines
-
- ***BEGIN FOOTNOTE 4***
- The Guidelines merely provide that ``[u]nless otherwise
- specified, the weight of a controlled substance set forth in
- the [offense level] table refers to the entire weight of any
- mixture or substance containing a detectable amount of the
- controlled substance.'' U. S. Sentencing Comm'n, Federal
- Sentencing Guidelines Manual 2.47 (1991).
- ***END FOOTNOTE 4***
-
- define the terms ``mixture'' or ``substance.'' Ante, at 7. The
- majority initially resists identifying the LSD and carrier as ei-
- ther a mixture or a substance; instead, it simply refers to the
- combination, using the language of the statute, as a ``mix-
- ture or substance containing a detectable amount of the
- drug.'' See ante, at 4, 5, 6, 7. Eventually, however, the ma-
- jority does identify the combination as a mixture: ``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
- the paper, so that they are commingled with it, but the LSD
- does not chemically combine with the paper.'' Ante, at 8.
-
- ***BEGIN FOOTNOTE 5***
- The majority of the Seventh Circuit also identified the com-
- bination as a ``mixture,'' see 908 F. 2d, at 1317-1318; how-
- ever, other Circuits that have addressed the question have
- either identified the combination as a sub-stance, see, e. g.,
- United States v. Bishop, 894 F. 2d 981, 986 (CA8 1990); Unit-
- ed States v. Daley, 883 F. 2d 313, 317 (CA4 1989); United
- States v. Taylor, 868 F. 2d 125, 127 (CA5 1989), or have
- simply held that the com-bination fell within the statutory
- language of a ``mixture or substance,'' without distinguishing
- between the two. See, e. g., United States v. Elrod, 898 F. 2d
- 60, 61 (CA6 1990); United States v. Larsen, 904 F. 2d 562,
- 563 (CA10 1990).
- ***END FOOTNOTE 5***
-
- Although it is true that ink which is absorbed by a blot-ter
- ``can be said to `mix' with the paper,'' ibid., I would not
- describe a used blotter as a ``mixture'' of ink and paper. So
- here, I do not believe the word ``mixture'' comfortably de-
- scribes the relatively large blotter which carries the grains of
- LSD that adhere to its surface.
-
- ***BEGIN FOOTNOTE 6***
- The point that the ``mixture or substance'' language remains
- ambiguous is highlighted by the Sentencing Commission's
- own desire to clarify the meaning of the terms. A Sentenc-
- ing Commission Notice, issued on March 3, 1989, invited
- public comment on whether the Commission should exclude
- the weight of the carrier for sentencing purposes in LSD
- cases. A section in the Guidelines Manual, entitled ``Ques-
- tions Most Frequently Asked About the Sentencing Guide-
- lines,'' contains a question about the ``mixture or substance''
- language, which reflects the Commission's continuing uncer-
- tainty as to whether the blotter paper should be weighed:
-
- With respect to blotter paper, sugar cubes, or other
- mediums on which LSD or other controlled substances
- may be absorbed, the Commission has not definitively
- stated whether the carrier medium is considered part of
- a drug `mixture or substance' for guideline application
- purposes. In order to ensure consistency between the
- guidelines and the statute, Application Note 1 to 2D1.1
- states that the term `mixture or substance' has the same
- meaning for guideline purposes as in 21 U. S. C. 841.
- Thus, the court must determine whether, under this sta-
- tute, LSD carrier medium would be considered part of
- an LSD mixture or substance. To date, all circuit courts
- that have addressed the issue appear to be answering the
- question affirmatively.'' Federal Sentencing Guidelines
- Manual, supra, at 599.
- ***END FOOTNOTE 6***
-
- Because I do not believe that the term ``mixture'' encom-
- passes the LSD and carrier at issue here, and because I, like
- the majority, do not think that the term ``substance'' de-
- scribes the combination any more accurately, I turn to the
- legislative history to see if it provides any guidance as to
- con-gressional intent or purpose. As the Seventh Circuit
- ob-served, the legislative history is sparse, and the only
- refer-ence to LSD in the debates preceding the passage of
- the 1986 amendments to 841 was a reference that addresses
- neither quantities nor weights of drugs. 908 F. 2d, at 1327;
- see also 132 Cong. Rec. S14030 (Sept. 27, 1986) (statement
- of Sen. Harkin).
-
- Perhaps more telling in this case is the subsequent legisla-
- tive history.
-
- ***BEGIN FOOTNOTE 7***
- Of course subsequent legislative history is generally not
- relevant and always must be used with care in interpreting
- enacted legislation. Com-pare Sullivan v. Finkelstein, 496 U.
- S. --- , --- , n. 8 (1990) (slip op., at 10-11, n. 8), with id., at
- --- (slip op., at 1-2) (SCALIA, J., concurring in part). It can,
- however, provide evidence that an effect of a statute was
- simply overlooked.
- ***END FOOTNOTE 7***
-
- In a letter to Senator Joseph R. Biden, Jr., dated April 26,
- 1989, the Chairman of the Sentencing Com-mission, William
- W. Wilkens, Jr., commented on the ambigu-ity of the sta-
- tute:
-
-
- `With respect to LSD, it is unclear whether Congress in-
- tended the carrier to be considered as a packaging ma-
- terial, or, since it is commonly consumed along with the
- illicit drug, as a dilutant ingredient in the drug mix-ture.
- . . . The Commission suggests that Congress may wish
- to further consider the LSD carrier issue in order to clar-
- ify legislative intent as to whether the weight of the car-
- rier should or should not be considered in deter-mining
- the quantity of LSD mixture for punishment pur-poses.'
- '' 908 F. 2d, at 1327-1328.
- Presumably in response, Senator Biden offered a technical
- amendment, the purpose of which was to correct an inequity
- that had become apparent from several recent court deci-
- sions.
-
- ***BEGIN FOOTNOTE 8***
- See, e. g., United States v. Bishop, 704 F. Supp. 910 (ND
- Iowa 1989).
- ***END FOOTNOTE 8***
-
- According to Senator Biden, ``[t]he amendment rem-edies
- this inequity by removing the weight of the carrier from the
- calculation of the weight of the mixture or sub-stance.'' 135
- Cong. Rec. S12748 (Oct. 5, 1989).
-
- ***BEGIN FOOTNOTE 9***
- Senator Biden offered the following example to highlight the
- inequities that resulted if the carrier weight were included in
- determining the weight of the ``mixture or substance'' of
- LSD:
-
-
- ``The inequity in these decisions is apparent in the fol-
- lowing example. A single dose of LSD weighs approxi-
- mately .05 mg. The sugar cube on which the dose may
- be dropped for purposes of ingestion and transporta-
- tion, however, weighs approximately 2 grams. Under 21
- U. S. C. 841(b) a person distributing more than one
- gram of a `mixture or sub-stance' containing LSD is
- punishable by a minimum sentence of 5 years and a
- maximum sentence of 40 years. A person distributing
- less than a gram of LSD, however, is subject only to a
- maximum sentence of 20 years. Thus a person distri-
- buting a 1,000 doses of LSD in liquid form is subject to
- no minimum penalty, while a person handing another
- person a single dose on a sugar cube is subject to the
- mandatory five year penalty.'' 135 Cong. Rec. S12748
- (Oct. 5, 1989).
- ***END FOOTNOTE 9***
-
- Although Senator Biden's amendment was adopted as part of
- Amend-ment No. 976 to S. 1711, the bill never passed the
- House of Representatives. Senator Kennedy also tried to
- clarify the language of 21 U. S. C. 841. He proposed the fol-
- lowing amendment:
-
- ``CLARIFICATION OF `MIXTURE OR
- SUBSTANCE.'
-
-
- ``Section 841(b)(1) of title 21, United States Code, is
- amended by inserting the following new subsection at the
- end thereof:
-
-
- `` `(E) In determining the weight of a ``mixture or
- sub-stance'' under this section, the court shall not in-
- clude the weight of the carrier upon which the controlled
- sub-stance is placed, or by which it is transported.' '' 136
- Cong. Rec. S7069-S7070 (May 24, 1990).
-
- Although such subsequent legislation must be approached
- with circumspection because it can neither clarify what the
- enacting Congress had contemplated nor speak to whether
- the clarifications will ever be passed, the amendments, at the
- very least, indicate that the language of the statute is far
- from clear or plain.
-
- In light of the ambiguity of the phrase ``mixture or sub-
- stance'' and the lack of legislative history to guide us, it is
- necessary to examine the congressional purpose behind the
- statute and to determine whether the majority's reading of
- the statute leads to results that Congress clearly could not
- have intended. The figures in the Court's opinion, see ante,
- at 4, n. 2, are sufficient to show that the majority's construc-
- tion will lead to anomalous sentences that are contrary to one
- of the central purposes of the Sentencing Guidelines, which
- was to eliminate disparity in sentencing. ``Congress sought
- reasonable uniformity in sentencing by narrowing the wide
- disparity in sentences imposed for similar criminal offenses
- committed by similar offenders.'' U. S. Sentencing Comm'n,
- Federal Sentencing Guidelines Manual 1.2 (1991).
-
- ***BEGIN FOOTNOTE 16***
- ``[T]he use of sentencing guidelines and policy statements
- will assure that each sentence is fair as compared to all other
- sentences.'' Ibid.
- ***END FOOTNOTE 16***
-
- As the majority's chart makes clear, widely divergent sen-
- tences may be imposed for the sale of identical amounts of a
- con-trolled substance simply because of the nature of the
- car-rier.
-
- ***BEGIN FOOTNOTE 16***
- ``[T]he use of sentencing guidelines and policy statements
- will assure that each sentence is fair as compared to all other
- sentences.'' Ibid.
- ***END FOOTNOTE 16***
-
- If 100 doses of LSD were sold on sugar cubes, the sentence
- would range from 188-235 months, whereas if the same
- dosage were sold in its pure liquid form, the sentence would
- range only from 10-16 months. See ante, at 4, n. 2. The ab-
- surdity and inequity of this result is emphasized in Judge
- Posner's dissent:
-
-
- ``A person who sells LSD on blotter paper is not a
- worse criminal than one who sells the same number of
- doses on gelatin cubes, but he is subject to a heavier
- pun-ishment. A person who sells five doses of LSD on
- sugar cubes is not a worse person than a manufacturer
- of LSD who is caught with 19,999 doses in pure form,
- but the former is subject to a ten-year mandatory
- minimum no-parole sentence while the latter is not even
- subject to the five-year minimum. If defendant Chap-
- man, who re-ceived five years for selling a thousand
- doses of LSD on blotter paper, had sold the same
- number of doses in pure form, his Guidelines sentence
- would have been fourteen months. And defendant
- Marshall's sentence for selling almost 12,000 doses
- would have been four years rather than twenty. The de-
- fendant in United States v. Rose, 881 F. 2d 386, 387 (7th
- Cir. 1989), must have bought an unusually heavy blotter
- paper, for he sold only 472 doses, yet his blotter paper
- weighed 7.3 grams -- more than Chapman's, although
- Chapman sold more than twice as many doses. Depend-
- ing on the weight of the carrier medium (zero when the
- stuff is sold in pure form), and excluding the orange
- juice case, the Guide-lines range for selling 198 doses
- (the amount in Dean) or 472 doses (the amount in
- Rose) stretches from ten months to 365 months; for sel-
- ling a thousand doses (Chapman), from fifteen to 365
- months; and for selling 11,751 doses (Marshall), from
- 33 months to life. In none of these computations, by
- the way, does the weight of the LSD itself make a
- difference -- so slight is its weight relative to that of the
- carrier -- except of course when it is sold in pure form.
- Congress might as well have said: if there is a carrier,
- weigh the carrier and for-get the LSD.
-
-
- ``This is a quilt the pattern whereof no one has been
- able to discern. The legislative history is silent, and
- since even the Justice Department cannot explain the
- why of the punishment scheme that it is defending, the
- most plausible inference is that Congress simply did not
- realize how LSD is sold.'' 908 F. 2d, at 1333.
-
- ***BEGIN FOOTNOTE 16***
- ``[T]he use of sentencing guidelines and policy statements
- will assure that each sentence is fair as compared to all other
- sentences.'' Ibid.
- ***END FOOTNOTE 16***
-
- Sentencing disparities that have been described as
- ``crazy,'' ibid., and ``loony,'' id., at 1332, could well be
- avoided if the majority did not insist upon stretching the
- definition of ``mix-ture'' to include the carrier along
- with the LSD. It does not make sense to include a car-
- rier in calculating the weight of the LSD because LSD,
- unlike drugs such as cocaine or mari-juana, is sold by
- dosage rather than by weight. Thus, whether one dose
- of LSD is added to a glass of orange juice or to a pitcher
- of orange juice, it is still only one dose that has been ad-
- ded. But if the weight of the orange juice is to be added
- to the calculation, then the person who sells the single
- dose of LSD in a pitcher rather than in a glass will re-
- ceive a substantially higher sentence. If the weight of
- the carrier is included in the calculation not only does it
- lead to huge dis-parities in sentences among LSD
- offenders, but also it leads to disparities when LSD sen-
- tences are compared to sen-tences for other drugs. See
- n. 12, supra; 908 F. 2d, at 1335.
-
- There is nothing in our jurisprudence that compels us to
- in-terpret an ambiguous statute to reach such an absurd
- result. In fact, we have specifically declined to do so in the
- past, even when the statute was not ambiguous, on the
- ground that Congress could not have intended such an out-
- come.
-
- ***BEGIN FOOTNOTE 16***
- ``[T]he use of sentencing guidelines and policy statements
- will assure that each sentence is fair as compared to all other
- sentences.'' Ibid.
- ***END FOOTNOTE 16***
-
- In construing a statute, Learned Hand wisely counseled us to
- look first to the words of the statute, but ``not to make a for-
- tress out of the dictionary; but to remember that statutes al-
- ways 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
- (CA2), aff'd, 326 U. S. 404 (1945). In the past, we have
- rec-ognized that ``frequently words of general meaning are
- used in a statute, words broad enough to include an act in
- ques-tion, and yet a consideration of . . . the absurd results
- which follow from giving such broad meaning to the words,
- makes it unreasonable to believe that the legislator intended
- to include the particular act.'' Holy Trinity Church v. United
- States, 143 U. S. 457, 459 (1892). These words guided our
- construc-tion of the statute at issue in Public Citizen v.
- Department of Justice, 491 U. S. 440, 454 (1989), when we
- also noted that ``[l]ooking beyond the naked text for gui-
- dance is perfectly proper when the result it apparently de-
- crees is difficult to fathom or where it seems inconsistent
- with Congress' inten-tion . . . .'' Id., at 455.
-
- Undoubtedly, Congress intended to punish drug traffick-
- ers severely, and in particular, Congress intended to punish
- those who sell large quantities of drugs more severely than
- those who sell small quantities.
-
- ***BEGIN FOOTNOTE 16***
- ``[T]he use of sentencing guidelines and policy statements
- will assure that each sentence is fair as compared to all other
- sentences.'' Ibid.
- ***END FOOTNOTE 16***
-
- But it did not express any intention to treat those who sell
- LSD differently from those who sell other dangerous drugs.
-
- ***BEGIN FOOTNOTE 16***
- ``[T]he use of sentencing guidelines and policy statements
- will assure that each sentence is fair as compared to all other
- sentences.'' Ibid.
- ***END FOOTNOTE 16***
-
- The majority's construc-tion of the statute fails to embody
- these legitimate goals of Congress. Instead of punishing
- more severely those who sell large quantities of LSD, the
- Court would punish more se-verely those who sell small
- quantities of LSD in weighty car-riers, and instead of sen-
- tencing in comparable ways those who sell different types of
- drugs, the Court would sentence those who sell LSD to
- longer terms than those who sell pro-portionately equivalent
- quantities of other equally dangerous drugs.
-
- ***BEGIN FOOTNOTE 16***
- ``[T]he use of sentencing guidelines and policy statements
- will assure that each sentence is fair as compared to all other
- sentences.'' Ibid.
- ***END FOOTNOTE 16***
-
- The Court today shows little respect for Congress' handiwork
- when it construes a statute to undermine the very goals that
- Congress sought to achieve.
-
- I respectfully dissent.
-
-
-
-
-