United States v. Stanley J. Marshall, United States of America v. Richard L. Chapman, John M. Schoenecker, and Patrick Brumm

Two cases consolidated for decision in banc present three questions concerning the application and constitutionality of the statute and sentencing guidelines that govern sales of lysergic acid diethylamide (LSD). Stanley J. Marshall was convicted after a bench trial and sentenced to 20 years’ imprisonment for conspiring to distribute, and distributing, more than ten grams of LSD, enough for 11,751 doses. 706 F.Supp. 650. Patrick Brumm, Richard L. Chapman, and John M. Schoenecker were convicted by a jury of selling ten *1315 sheets (1,000 doses) of paper containing LSD. Because the total weight of the paper and LSD was 5.7 grams, a five-year mandatory minimum applied. The district court sentenced Brumm to 60 months (the minimum), Schoenecker to 63 months, and Chapman to 96 months’ imprisonment. All four defendants confine their arguments on appeal to questions concerning their sentences.

The three questions we must resolve are these: (1) Whether 21 U.S.C. § 841(b)(1)(A)(v) and (B)(v), which set mandatory minimum terms of imprisonment— five years for selling more than one gram of a “mixture or substance containing a detectable amount” of LSD, ten years for more than ten grams — exclude the weight of a carrier medium. (2) Whether the weight tables in the sentencing guidelines likewise exclude the weight of any carrier. (3) Whether the statute and the guidelines are unconstitutional to the extent their computations are based on anything other than the weight of the pure drug. Marshall presents some additional questions concerning his sentence that are important only if we get past these three.

I

According to the Sentencing Commission, the LSD in an average dose weighs 0.05 milligrams. Twenty thousand pure doses are a gram. But 0.05 mg is almost invisible, so LSD is distributed to retail customers in a carrier. Pure LSD is dissolved in a solvent such as alcohol and sprayed on paper or gelatin; alternatively the paper may be dipped in the solution. After the solvent evaporates, the paper or gel is cut into one-dose squares and sold by the square. Users swallow the squares or may drop them into a beverage, releasing the drug. Although the gelatin and paper are light, they weigh much more than the drug. Marshall’s 11,751 doses weighed 113.32 grams; the LSD accounted for only 670.72 mg of this, not enough to activate the five-year mandatory minimum sentence, let alone the ten-year minimum. The ten sheets of blotter paper carrying the 1,000 doses Chapman and confederates sold weighed 5.7 grams; the LSD in the paper did not approach the one-gram threshold for a mandatory minimum sentence. This disparity between the weight of the pure LSD and the weight of LSD-plus-carrier underlies the defendants’ arguments.

A

If the carrier counts in the weight of the “mixture or substance containing a detectable amount” of LSD, some odd things may happen. Weight in the hands of distributors may exceed that of manufacturers and wholesalers. Big fish then could receive paltry sentences or small fish draconian ones. Someone who sold 19,999 doses of pure LSD (at 0.05 mg per dose) would escape the five-year mandatory minimum of § 841(b)(1)(B)(v) and be covered by § 841(b)(1)(C), which lacks a minimum term and has a maximum of “only” 20 years. Someone who sold a single hit of LSD dissolved in a tumbler of orange juice could be exposed to a ten-year mandatory minimum. Retailers could fall in or out of the mandatory terms depending not on the number of doses but on the medium: sugar cubes weigh more than paper, which weighs more than gelatin. One way to eliminate the possibility of such consequences is to say that the carrier is not a “mixture or substance containing a detectable amount” of the drug. Defendants ask us to do this.

Defendants’ submission starts from the premise that the interaction of the statutory phrase “mixture or substance” with the distribution of LSD by the dose in a carrier creates a unique probability of surprise results. The premise may be unwarranted. The paper used to distribute LSD is light stuff, not the kind used to absorb ink. Chapman’s 1,000 doses weighed about 0.16 ounces. More than 6,000 doses, even in blotter paper, weigh less than an ounce. Because the LSD in one dose weighs about 0.05 milligrams, the combination of LSD-plus-paper is about 110 times the weight of the LSD. The impregnated paper could be *1316 described as “0.9% LSD”. 1 Gelatin carrying LSD could be described as “2.5% LSD”, if the weight for gelatin given in United States v. McGeehan, 824 F.2d 677, 680 (8th Cir.1987), is accurate.

This is by no means an unusual dilution rate for illegal drugs. Heroin sold on the street is 2% to 3% opiate and the rest filler. Jerome J. Platt, Heroin Addiction: Theory, Research, and Treatment 48-50 (1986). Sometimes the mixture is even more dilute, approaching the dilution rate for LSD in blotter paper. E.g., United States v. Buggs, 904 F.2d 1070, 1072 (7th Cir.1990), (conviction for sale of 9.95 grams of 1.2% heroin). Heroin and crack cocaine, like LSD, are sold on the streets by the dose, although they are sold by weight higher in the distributional chain. All of the “designer drugs” and many of the opiates are sold by the dose, often conveniently packaged in pills. The Sentencing Commission lists MDA, PCP, psilocin, psilocybin, metha-qualone, phenmetrazine, and amphetamines (regular and meth-) along with LSD as drugs sold by the dose in very dilute form. 55 Fed.Reg. 19197 (May 8, 1990) (amending Application Note 11 to U.S.S.G. 2D1.1). Other drugs, such as dilaudid and dola-phine, are sold by the pill rather than weight, and it is safe to assume that all have far less than 100% active ingredients.

Just as it is hasty to assume that the carrier produces a unique dilution factor for LSD, so it is unwarranted to assume that LSD as it leaves the refinery is pure, and therefore weighs only 0.05 mg per dose. Solid LSD weighs that little, but is it shipped dry? Neither the record nor the sparse literature tells us. LSD is applied to a carrier in a solvent such as alcohol. How dilute is this solution? If we assume that one drop of liquid is applied to each square of blotter paper, then the liquid is only 0.1% LSD. 2 We do not know whether one drop per dose is right, but, if it is, the solution weighs 8.5 times as much per dose as blotter paper: a dose of LSD in alcohol weighs 0.0487 grams, while a dose of LSD in blotter paper weighs 0.0057 grams. 3 A manufacturer caught with wholesale quantities of LSD solution that had not been applied to blotter paper would face sentences higher than those who possess only the paper containing the drug.

So there may be nothing extraordinary about LSD, no reason to think that the statute operates differently for LSD than for heroin. Heroin comes into this country pure; it is sold diluted on the street, creating the possibility that § 841 will require higher sentences for retailers than for smugglers or refiners. The dilution factor for retail heroin is not significantly different from the factor for LSD on blotter paper. LSD in solution weighs more than LSD on blotter paper; pure heroin weighs (much) less per dose than the dilute heroin sold on the street. Heroin is sold in different cities at different dilution rates; that implies that the weight of a packet of heroin for a single administration weighs more in some cities than in others. The percentage difference exceeds the gap between paper and gelatin, the common carriers of LSD. Office of Intelligence, Drug Enforcement Administration, Domestic Monitor Program: Summary Report Fiscal Year 1989. So although § 841 creates the possibility of erratic application in LSD cases, it is important to recognize that the *1317 normal case involves neither extreme weight (LSD in orange juice) nor extreme purity (19,999 doses weighing less than a gram). With this understanding, we turn to the statute.

B

It is not possible to construe the words of § 841 to make the penalty turn on the net weight of the drug rather than the gross weight of carrier and drug. The statute speaks of “mixture or substance containing a detectable amount” of a drug. “Detectable amount” is the opposite of “pure”; the point of the statute is that the “mixture” is not to be converted to an equivalent amount of pure drug.

The structure of the statute reinforces this conclusion. The 10-year minimum applies to any person who possesses, with intent to distribute, “100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP)”, § 841(b)(1)(A)(iv). Congress distinguished the pure drug from a “mixture or substance containing a detectable amount of” it. All drugs other than PCP are governed exclusively by the “mixture or substance” language. Even brute force cannot turn that language into a reference to pure LSD. Congress used the same “mixture or substance” language to describe heroin, cocaine, amphetamines, and many other drugs that are sold after being cut — sometimes as much as LSD. There is no sound basis on which to treat the words “substance or mixture containing a detectable amount of”, repeated verbatim for every drug mentioned in § 841 except PCP, as different things for LSD and cocaine although the language is identical, while treating the “mixture or substance” language as meaning the same as the reference to pure PCP in 21 U.S.C. § 841(b)(1)(A)(iv) and (B)(iv).

Although the “mixture or substance” language shows that the statute cannot be limited to pure LSD, it does not necessarily follow that blotter paper is a “mixture or substance containing” LSD. That phrase cannot include all “carriers”. One gram of crystalline LSD in a heavy glass bottle is still only one gram of “statutory LSD”. So is a gram of LSD being “carried” in a Boeing 747. How much mingling of the drug with something else is essential to form a “mixture or substance”? The legislative history is silent, but ordinary usage is indicative.

“Substance” may well refer to a chemical compound, or perhaps to a drug in a solvent. LSD does not react chemically with sugar, blotter paper, or gelatin, and none of these is a solvent. “Mixture” is more inclusive. Cocaine often is mixed with mannitol, quinine, or lactose. These white powders do not react, but it is common ground that a cocaine-mannitol mixture is a statutory “mixture”.

LSD and blotter paper are not commingled in the same way as cocaine and lactose. What is the nature of their association? The possibility most favorable to defendants is that LSD sits on blotter paper as oil floats on water. Immiscible substances may fall outside the statutory definition of “mixture”. The possibility does not assist defendants — not on this record, anyway. LSD is applied to paper in a solvent; after the solvent evaporates, a tiny quantity of LSD remains. Because the fibers absorb the alcohol, the LSD solidifies inside the paper rather than on it. You cannot pick a grain of LSD off the surface of the paper. Ordinary parlance calls the paper containing tiny crystals of LSD a mixture.

United States v. Rose, 881 F.2d 386 (7th Cir.1989), like every other appellate decision that has addressed the question, 4 con- *1318 eludes that the carrier medium for LSD, like the “cut” for heroin and cocaine, is a “mixture or substance containing a detectable amount” of the drug. Although a chemist might be able to offer evidence bearing on the question whether LSD and blotter paper “mix” any more fully than do oil and water, the record contains no such evidence. Without knowing more of the chemistry than this record reveals, we adhere to the unanimous conclusion of the other courts of appeals that blotter paper treated with LSD is a “mixture or substance containing a detectable quantity of” LSD.

C

Two reasons have been advanced to support a contrary conclusion: that statutes should be construed to avoid constitutional problems, and that some members of the sitting Congress are dissatisfied with basing penalties on the combined weight of LSD and carrier. Neither is persuasive.

A preference for giving statutes a constitutional meaning is a reason to construe, not to rewrite or “improve”. E.g., United States v. Monsanto, — U.S.-, 109 S.Ct. 2657, 2664, 105 L.Ed.2d 512 (1989); United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985). Canons are doubt-resolvers, useful when the language is ambiguous and “a construction of the statute is fairly possible by which the question may be avoided”, Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296-97, 76 L.Ed. 598 (1932) (emphasis added). “[Sjubstance or mixture containing a detectable quantity” is not ambiguous, avoidance not “fairly possible”. Neither the rule of lenity nor the preference for avoiding constitutional adjudication justifies disregarding unambiguous language.

The canon about avoiding constitutional decisions, in particular, must be used with care, for it is a closer cousin to invalidation than to interpretation. It is a way to enforce the constitutional penumbra, and therefore an aspect of constitutional law proper. Constitutional decisions breed penumbras, which multiply questions. Treating each as justification to construe laws out of existence too greatly enlarges the judicial power. And heroic “construction” is unnecessary, given our conclusion in Part III that Congress possesses the constitutional power to set penalties on the basis of gross weight.

As for the pending legislation: subsequent debates are not a ground for avoiding the import of enactments. E.g., Pierce v. Underwood, 487 U.S. 552, 566-68, 108 S.Ct. 2541, 2550-52, 101 L.Ed.2d 490 (1988); Illinois Brick Co. v. Illinois, 431 U.S. 720, 733-34 & n. 14, 97 S.Ct. 2061, 2068-69 & n. 14, 52 L.Ed.2d 707 (1977); Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 352-53, 42 L.Ed.2d 320 (1974). Although the views of a subsequent Congress are entitled to respect, ongoing debates do not represent the views of Congress. Judge Wilkins, Chairman of the Sentencing Commission, wrote a letter to Senator Biden, Chairman of the Judiciary Committee, remarking that “it is unclear whether Congress intended the carrier to be considered as a packaging material, or since it is commonly consumed along with the illicit drug, as a dilutent ingredient in the drug mixture”. The Chairman of the Commission invited the Chairman of the Committee to introduce legislation choosing one or the other explicitly.

Senator Biden introduced an amendment to S. 1711, the Administration’s omnibus drug bill, stating in materials read into the Congressional Record that the amendment changes the statute to omit the weight of the carrier. 135 Cong.Rec. S 12748 (daily ed. Oct. 5, 1989). So far as we can determine, the language he actually introduced did not contain the text to which his prepared statement referred. No language of this kind appears in the version the Senate passed. 135 Cong.Rec. S 13433 (daily ed. Oct. 16, 1989) (text of bill that Senate sent to House). The House is yet to act. Senator Kennedy has introduced an amendment to other legislation affecting the criminal code, which, like Senator Biden’s, would *1319 exclude the carrier. Amendment No. 1716 to S.1970, 136 Cong.Rec. S 7069 (daily ed. May 24, 1990). But this proposal, too, awaits enactment. Both Senator Kennedy’s proposal and Senator Biden’s statement are more naturally understood as suggestions for change than as evidence of today’s meaning. At all events, the Senators were speaking for themselves, not for Congress as an institution. See Quern v. Mandley, 436 U.S. 725, 736 n. 10, 98 S.Ct. 2068, 2075 n. 10, 56 L.Ed.2d 658 (1978).

Statements supporting proposals that have not been adopted do not inform our reading of the text an earlier Congress passed and the President signed, see Fireston e Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989). We may not, in the name of faithful interpretation of what the political branches enacted, treat as authoritative the statements of legislators supporting change. Opinion polls of Senators are not law. See Covalt v. Carey Canada Inc., 860 F.2d 1434, 1438-39 (7th Cir.1988). See also In re Sinclair, 870 F.2d 1340 (7th Cir.1989).

II

Only Brumm received a mandatory minimum sentence. Everyone else could have received the same sentence if all mini-ma were excised from § 841, and if the weights in the statute were read as referring to pure LSD rather than to LSD-plus-carrier. The sentences of Marshall (20 years), Chapman (8 years), and Schoenecker (63 months) are derived largely from the sentencing guidelines. Understandably, these defendants argue that whether or not the statute counts the carrier medium, the quantity table in the guidelines does not.

This is not a strong argument. The guidelines speak of “mixture or substance”, the statutory language. Footnote * to the quantity table at U.S.S.G. 2D1.1 says that “[ujnless otherwise specified, the weight of the 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.” Only PCP and methamphetamine are “otherwise specified”. Application Note 9 reiterates that the footnote allows purity adjustments only for PCP and methamphetamine. Application Note 1 to § 2D1.1 says that “ ‘Mixture or substance’ as used in this guideline has the same meaning as in 21 U.S.C. § 841.” As we observed in United States v. Pinto, 875 F.2d 143 (7th Cir.1989), and United States v. White, 888 F.2d 490 (7th Cir.1989), these notes are taken seriously as contemporaneous explanations by the authors. To conclude that the carrier medium is a statutory “mixture or substance” is to conclude that its weight counts under the guidelines as well.

For what it is worth, the guidelines, demonstrate the view of the Sentencing Commission that the statutory weights include dilutents and carriers. None of the references to purity in the guidelines makes sense if the weights in the statute deal with pure drugs to start with. The Commission’s most recent words reinforce the conclusion that it understands both the statute and the guidelines to include the weight of the carrier medium for LSD. Recently the Commission transmitted to Congress a proposed amendment to U.S.S.G. 2D1.1 Application Note 11, the conversion table for cases in which only the number of doses is known. See 55 Fed.Reg. 19197 (May 8, 1990). This table gives LSD a weight of 0.05 mg per dose (20,000 doses per gram). The amendment specifies that the number of doses is not to be used to derive the weight of the “mixture or substance” if the actual weight is known, a caution necessary only if “mixture or substance” includes the carrier medium. Lest the smallest ambiguity remain, the Commission puts an asterisk after LSD and adds (emphasis added): “[T]he weight per unit shown is the weight' of the actual controlled substance, and not generally the weight of the mixture or substance containing the controlled substance. Therefore, use of this table provides a very conservative estimate of the total weight.” Couldn’t be clearer that the Sentencing Commission believes that the weight of the carrier is part of the total “mixture or *1320 substance” under both the statute and the guidelines.

Ill

A constitutional question remains, given our construction of the statute and guidelines. The provision of the Constitution reading on sentences is the eighth amendment, forbidding the infliction of “cruel and unusual punishment”. Marshall, alone among the four defendants, invokes the eighth amendment. It offers weak support at best. Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1984), holds that 40 years is not constitutionally excessive for distributing nine ounces of marijuana. Marshall got 20 for a more serious crime. Many federal courts have held that sentences in this range may be imposed for selling similar volumes of LSD. 5 Other courts have sustained life without parole for drug offenses. 6 LSD causes psychoses, sometimes leading to suicide or violent aggression. Terrence C. Cox, Michael R. Jacobs, A. Eugene LeBlanc & Joan A. Marshman, Drugs and Drug Abuse: A Reference Text 311-15 (1983); Albert Hofmann, LSD: My Problem Child 67-73 (1979). Society believes that the sale of hallucinogens is a serious crime, and severe sentences constitutionally may attend the crimes troubling to the people. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); United States v. Sanchez, 859 F.2d 483 (7th Cir.1988); United States v. Rhodes, 779 F.2d 1019 (4th Cir.1985).

A

Although these defendants received sentences within the limits set by the eighth amendment — the provision of the Bill of Rights expressly addressed to quantum of punishment — they insist that their sentences are unconstitutional under the due process clause of the fifth amendment. Yet defendants received ample “process”. Their complaint is about substance, not process. Substantive due process, a judicial invention, is least applicable when a provision of the Constitution directly addresses the subject. Graham v. Connor, — U.S. -, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (substantive due process is not an appropriate way to analyze excessive force in arrests, given the fourth amendment); see also Chicago Board of Realtors, Inc. v. Chicago, 819 F.2d 732, 742-45 (7th Cir.1987); United States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir.1989) (concurring opinion). This is not an appropriate case for the deployment of that elusive doctrine.

Defendants’ arguments are not so much about the sentences handed out for LSD in blotter paper as they are objections to the possibility that other persons will receive sentences much too long (LSD in orange juice) or too short (19,999 doses in pure form). But these are only possibilities, which have nothing to do with these sentences. Defendants’ sentences bear rational relations to their offenses. That is all the Constitution requires, unless criminal defendants are entitled to assert third parties’ rights to better sentencing practices— which they are not. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987); Schall v. Martin, 467 U.S. 253, 269 n. 18, 104 S.Ct. 2403, 2412 n. 18, 81 L.Ed.2d 207 (1984); United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522-23, 4 L.Ed.2d 524 (1960).

That someone else’s sentence might be disproportionate to their offenses is no reason for altering these defendants’ punishments. Effects of statutes on strangers are in general not sufficient to prevent application to oneself (this is not a first amendment case), and in particular *1321 the claim that someone else may not be punished severely enough is not a good objection to one’s own punishment. Wayte v. United States, 470 U.S. 598, 607-10, 105 S.Ct. 1524, 1530-32, 84 L.Ed.2d 547 (1985); FTC v. Universal-Rundle Corp., 387 U.S. 244, 87 S.Ct. 1622, 18 L.Ed.2d 749 (1967); Falls v. Town of Dyer, 875 F.2d 146 (7th Cir.1989). Prosecutors possess the power to excuse the big cheeses while landing on the small fry with hobnail boots. Discretion, even if it ends in grossly unequal treatment according to culpability, does not entitle a guilty defendant to avoid a sentence appropriate to his own crime. So too when the possibility may be attributed to the statute rather than (or in addition) to prosecutorial choice. See United States v. Batchelder, 442 U.S. 114, 124-26, 99 S.Ct. 2198, 2204-05, 60 L.Ed.2d 755 (1979), holding that it does not violate the due process clause to enact two statutes providing different penalties for identical conduct — the mirror image of the claim in this case that the statutes do too little to impose graduated penalties for different conduct.

Until this century Congress did not attempt to differentiate sentences according to culpability, and it did not authorize judges to do so. Statutes often set out flat penalties for specified crimes, such as the sanction of 25 years’ imprisonment for armed robbery of a postal carrier, 18 U.S.C. § 2114 (repealed in 1984), a term impervious to such variables as the amount taken and the use of violence. Courts thought identical (and severe) treatment of greatly different offenses constitutional. E.g., United States v. Smith, 602 F.2d 834 (8th Cir.1979); Smith v. United States, 284 F.2d 789, 791 (5th Cir.1960). We recounted the history briefly in Pinto, in the course of holding that the sentencing guidelines do not violate the due process clause by diminishing sentencing judges’ discretion to tailor sentences closely to offense and offender.

Pinto rests on a conclusion that the due process clause allows Congress to write with broad strokes, recognizing that there will be a poor fit between the statutory elements of the offense and the sentence attached to them if other important factors are left out. (Here the omitted factor is the purity of the “mixture or substance”.) Every other court of appeals has agreed with Pinto. 7 Judges, who in the era between the end of uniform penalties and the creation of the guidelines had discretion to impose such sentences as pleased them, also may create disparity. Some judges thought wholesalers the principal threat; some were offended by retailers; some thought young criminals especially deserving of punishment; others excused women when men would have received high sentences for identical conduct. It was this crazy-quilt of incompatible yet unreviewable sentences, Dorszynski v. United States, 418 U.S. 424, 440-41, 94 S.Ct. 3042, 3051-52, 41 L.Ed.2d 855 (1974), that the 1984 code and the guidelines were designed to replace. No one supposes, however, that the pre-guideline practice was unconstitutional, even though the potential for disparity had been realized.

Neither uniform sentences that disregard characteristics of offense and offender, nor sentences so thoroughly discretionary that they are not comparable from one judge to another, violate the due process clause. Both systems have been tried in the United States and deemed constitutional. If they are constitutional, so is § 841. Maybe Congress ought to make the statute books more rational. Maybe it ought to specify that the sentence increases as a function of the net rather than the gross weight of the drug, but the task of determining how close to make the fit between offense and sentence is legislative.

*1322 B

Cases such as McCleskey v. Kemp, 481 U.S. 279, 306-08, 107 S.Ct. 1756, 1774-75, 95 L.Ed.2d 262 (1987), hold open the possibility of a constitutional objection under equal protection criteria when the punishment bears no relation whatever to the crime. See also Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974), holding that statutory limits on eligibility for low sentences may be examined, although only under the highly deferential rational basis test. Let us ask, then, whether the pattern of sentences under the drug laws is cockeyed. Other courts do not think so; they have uniformly rebuffed constitutional challenges to statutes that make punishment depend on gross rather than net weight. 8

Both the statute and the guidelines make the sentence increase with quantity. The greater the quantity, the greater the sentence. This is a rational way to proceed. Whether the potential created by failure to adjust for purity will be realized depends not only on the range of purity that actually occurs but also on what can be done about the extreme cases. Do we see major suppliers of LSD skipping out the courthouse door because their pure drug falls outside the mandatory minima, and the catchall statute (§ 841(b)(1)(C)) does not allow judges to craft sentences appropriate to their crimes? Do we see people going to jail for ten years because they sold one dose of LSD in a soft drink? If we don’t, then the potential for disparity does not require holding statute and guidelines unconstitutional.

We do not see an inverted system of penalties. Counsel have not called to our attention, and we could not find, even one prosecution for selling a single dose of LSD, let alone a single-dose prosecution that ended in a preposterously high sentence. In the broad middle ground of retail and wholesale sales, in which (to judge from recent decisions) LSD almost always is sold in blotter paper, § 841 and the guidelines work as they should: the more doses, the greater the weight; the greater the weight, the longer the sentence. Marshall, wholesaler of 11,751 doses, gets 20 years; the other three defendants, retailers of 1,000, get five to eight years. As for the high end: any manufacturer or wholesaler who is in the business in a big way will trigger either § 841(b)(1)(A)(v) {10 years to life for 10 grams or more of LSD} or § 841(b)(1)(B)(v) {5 to 40 years for 1 gram or more of LSD}. A person who cannot be linked to even one gram is not such a big fish after all.

Even a “minor manufacturer” is covered by § 841(b)(1)(C), which authorizes a maximum sentence of 20 years without parole. Although this subsection lacks a mandatory minimum, this is irrelevant to the sentence. Minimum sentences are designed for little fish, the ones judges would throw back if the legislature would let them. That a manufacturer caught with less than a gram of pure LSD would not draw a mandatory minimum is of no moment. He could and likely would get the 20 years per count authorized by § 841(b)(1)(C), and probably there would be more than one count. A manufacturer or wholesaler will *1323 be involved in a conspiracy, the sentence for which may be tacked on to the sentence for the amount possessed or sold.

That is not the half of it. The real punishment for a manufacturer or a major wholesaler of any drug is not set by § 841. It is set by the Continuing Criminal Enterprise statute, 21 U.S.C. § 848. This law, “a carefully crafted prohibition ... designed to reach the ‘top brass’ in the drug rings”, Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 2413, 85 L.Ed.2d 764 (1985), comes into play whenever a person organizes or supervises a criminal enterprise, involving at least five others, from which he earns substantial income. Major distributors fall within the statute, United States v. Bond, 847 F.2d 1233 (7th Cir.1988), as do those who aid and abet the drug chieftains, United States v. Pino-Perez, 870 F.2d 1230 (7th Cir.1989) (in banc). Persons who escape the jaws of § 841 walk into the maw of § 848. The CCE offense carries a minimum term of 20 years’ imprisonment. If the defendant is “the principal administrator” and the enterprise has gross receipts of $10 million per year, the mandatory penalty is life without parole, 21 U.S.C. § 848(b). There is in theory little risk, and in practice none, that the major players in the manufacture and distribution of LSD or any other illegal drug will be treated lightly compared with the four middlemen now before us. Defendants might have established that, despite all appearances, sentences are unrelated (or inversely related) to the amount of pure LSD involved. Yet they introduced no evidence to this effect, and none has been published in the social science literature. Persons who want a court to hold a statute unconstitutional need to do more than speculate. Ogden v. Saunders, 25 U.S. (12 Wheat.) 212, 270, 6 L.Ed. 606 (1827) (opinion of Washington, J.).

Although the parties say that