§251 Drug Offenses, Methamphetamine
9th Circuit finds no plain error in failing to resolve meth issue raised by presentence report. (251)(760) At his sentencing for drug trafficking, the district court found that defendant was a career offender under § 4B1.1 based in part on his prior convictions under California Health & Safety Code § 11378. The presentence report raised the issue of whether the prior convictions involved geometric isomers of methamphetamine, but the district court did not resolve that issue. For the first time on appeal, defendant argued the court’s failure to rule of the question violated Fed. R. Crim. P. 32(i)(3)(B). Reviewing for plain error, the Ninth Circuit ruled that defendant’s substantial rights were not affected because a prior Ninth Circuit case held that geometric isomers of methamphetamine do not exist. U.S. v. Ceja, __ F.4th __ (9th Cir. Jan. 26, 2022) No. 20-50204.
4th Circuit says court is not required to reject “ice” guidelines. (251) Defendants pleaded guilty to methamphetamine offenses, and the district court sentenced them under the “ice” guidelines. Defendants argued that the district court should have rejected on policy grounds the 10-1 disparity between the guidelines for “ice” and ordinary methamphetamine. The Fourth Circuit found no error, because of the vast nature of the conspiracy and the “appropriateness” of using the “ice” guidelines. U.S. v. Williams, __ F.4th __ (4th Cir. Nov. 23, 2021) No. 20-4002.
4th Circuit finds “ice” was foreseeable to meth defendants. (251)(254)(270) At defendant’s sentencing for conspiracy to distribute methamphetamine, the district court found that certain quantities of “ice” were foreseeable for each defendant. Defendants argued that it was not foreseeable that they would distribute “ice,” as opposed to regular methamphetamine. The Fourth Circuit affirmed, holding that although the 80% threshold for “ice” may be proven by lab results, the district court had “latitude” to use DEA reports, statements from coconspirators, and the testimony of experts about what was trafficked in the region. U.S. v. Williams, __ F.4th __ (4th Cir. Nov. 23, 2021) No. 20-4002.
8th Circuit says it cannot force variance based on policy disagreement with meth guidelines. (251)(741) Defendant pleaded guilty to trafficking in methamphetamine. His guidelines range was 235 to 293 months, but the district court varied downward to 192 months. Defendant argued that the sentence should have been even lower because the court should have disagreed on policy grounds with the guidelines for pure methamphetamine and a mixture containing methamphetamine. The Eighth Circuit held that it had no authority to force the district court to vary based on a policy disagreement with the guidelines. U.S. v. Wickman, __ F.3d __ (8th Cir. Feb. 25, 2021) No. 20-1186.
5th Circuit upholds guidelines sentence despite claim that it was based on inaccurate information. (251) (742) Defendant pleaded guilty to methamphetamine trafficking. His guidelines range was 188 to 235 months, and he was sentenced to 235 months. Defendant argued that his sentence was substantively unreasonable because the district court relied on inaccurate information. The Fifth Circuit found that the district court did not rely on inaccurate information, and that the sentence was not substantively unreasonable. U.S. v. Kearby, __ F.3d __ (5th Cir. Nov. 25, 2019) No. 18-10874.
6th Circuit says chemicals for manufacturing methamphetamine created risk to minor. (240)(251) Defendant was arrested while he was traveling in a car with a seven-year-old child, in possession of methamphetamine manufacturing materials. Defendant pleaded guilty to attempting to manufacture methamphetamine. At sentencing, an expert testified that the chemicals were hazardous. The district court enhanced defendant’s offense level by six under § 2D1.1(b)(14)(d) because his offense posed a “substantial risk of harm to the life of a minor.” The Sixth Circuit upheld the enhancement, finding no clear error in the district court’s factual findings supporting the enhancement and that the manner in which the chemicals were stored caused a “grave risk of explosion.” U.S. v. Owen, __ F.3d __ (6th Cir. Oct. 10, 2019) No. 18-5739.
8th Circuit affirms that drug sentence was based on career offender guideline. (251)(520) Defendant pleaded guilty to possession with intent to distribute methamphetamine. The district court found that defendant was a career offender under § 4B1.1, calculated his sentencing range as 262 to 327 months, and sentenced him to 188 months. On appeal, defendant argued that the district court used the methamphetamine quantity to calculate his sentence, but the Eighth Circuit found that the district court properly used the career offender guidelines. U.S. v. Nation, __ F.3d __ (8th Cir. July 9, 2019) No. 18-2296.
5th Circuit upholds drug quantity determination in meth conspiracy. (251) At defendant’s trial for conspiracy to possess with intent to distribute more than 500 grams of methamphetamine, defendant’s coconspirators testified to defendant’s purchase of approximately 14 kilos of methamphetamine. That testimony was corroborated by phone records. The presentence report set defendant’s offense level based on 13.6 kilograms of methamphetamine, and the district court adopted that quantity at sentencing. The Fifth Circuit rejected defendant’s claim that the quantity rested on “conflicting” and “contradictory” testimony from the two coconspirators. U.S. v. Piper, __ F.3d __ (5th Cir. Jan. 10, 2019) No. 17-10913.
5th Circuit affirms finding that methamphetamine was imported. (251) At defendant’s sentencing for conspiracy to possess methamphetamine with intent to distribute, the district court applied a two-level increase under § 2D1.1(b)(5) for “importation,” based on a DEA report that a coconspirator had imported the methamphetamine from Mexico. Reviewing for clear error, the Fifth Circuit affirmed, finding sufficient evidence that the DEA report was not conclusory, as defendant argued. U.S. v. Piper, __ F.3d __ (5th Cir. Jan. 10, 2019) No. 17-10913.
7th Circuit rejects claim that “ice” and “methamphetamine” should be treated the same. (251)(741) Defendant pleaded guilty to distributing methamphetamine. The defendant conceded that he distributed 63.8 grams of “ice,” a variant of methamphetamine that the guidelines define as “d-methamphetamine hydrochloride of at least 80% purity.” Defendant’s guidelines range was 130 to 162 months. Defendant argued that his sentence should have been based on distribution of “methamphetamine” instead of “ice,” which would have reduced his sentencing range to 77 to 96 months. The district court rejected defendant’s argument but varied down to 125 months. The Seventh Circuit affirmed, rejecting defendant’s arguments that the district court should have ignored the guidelines’ 10-1 ratio of “ice” to “methamphetamine.” U.S. v. Bostock, __ F.3d __ (7th Cir. Dec. 10, 2018) No. 18-1897.
8th Circuit holds drug quantity admitted at sentencing is binding on appeal. (251)(855) Defendant was part of a large conspiracy to distribute methamphetamine, but he pleaded only to a single count of possession with intent to distribute methamphetamine. On appeal, defendant argued for the first time that under § 2D1.1 the district court should have excluded the amount that he possessed for personal use from the total amount of methamphetamine. Reviewing for plain error, the Eighth Circuit found none. Having admitted the drug quantity at sentencing, defendant cannot assert on appeal that the district court erred in finding that drug quantity. U.S. v. Escobar, __ F.3d __ (8th Cir. Nov. 26, 2018) No. 17-1014.
7th Circuit finds Texas deferred adjudication was a prior conviction for mandatory minimum. (245)(251) Defendant was convicted of an offense involving at least 50 grams of methamphetamine. The government filed an information under 21 U.S.C. § 851 for an enhanced sentence based on defendant’s two prior felony drug convictions, and the district court imposed a mandatory life sentence. On appeal, defendant argued that his prior conviction in Texas should not count as a prior felony drug conviction because the state court granted him a deferred adjudication and he was discharged from probation. Citing previous decisions, the Seventh Circuit held that, for purposes of § 851, a deferred adjudication in Texas constitutes a prior conviction. U.S. v. Lopez, __ F.3d __ (7th Cir. Oct. 24, 2018) No. 17-1391.
11th Circuit upholds preponderance standard at sentencing. (245)(251) Defendant was convicted of conspiracy to distribute 500 grams or more of methamphetamine, and the government filed an information under 21 U.S.C. § 851 seeking a mandatory minimum sentence based on defendant’s prior felony drug conviction. Section 851 requires the prior conviction to be proved beyond a reasonable doubt. At defendant’s sentencing, the district court used a preponderance standard. Reviewing for plain error, the Eleventh Circuit found no effect on defendant’s substantial rights because there was sufficient evidence for the court to find beyond a reasonable doubt that defendant had been convicted of possession of cocaine. The outcome would not have been different if the court had applied the correct standard. U.S. v. Hernandez, __ F.3d __ (11th Cir. Oct. 26, 2018) No. 17-15666.
7th Circuit upholds sentence for “ice,” even though codefendants were sentenced for methamphetamine. (251) Defendant pleaded guilty to transporting methamphetamine as part of a 20-person conspiracy. Defendant was the last to be sentenced. Although the court found that the coconspirators distributed methamphetamine, it found that defendant had distributed ice, an especially pure form of methamphetamine that carries a higher offense level. Reviewing for plain error, the Seventh Circuit found sufficient evidence to support the district court’s finding that defendant distributed exceptionally pure methamphetamine. The court also rejected defendant’s claim that his offense level was higher than that of his coconspirators, finding that the coconspirators had been sentenced based on a greater amount of methamphetamine. U.S. v. Castaneda, __ F.3d __ (7th Cir. Oct. 2, 2018) No. 18-1541.
7th Circuit finds denial of acceptance not inconsistent with drug quantity finding. (251)(480) Defendant pleaded guilty to distributing methamphetamine in a large conspiracy. At sentencing, the district court set defendant’s offense level based on three kilograms of ice, an exceptionally pure form of methamphetamine. The court also denied a reduction for acceptance of responsibility under § 3E1.1, finding implausible defendant’s assertion that he only “occasionally” transported meth. The Seventh Circuit affirmed, finding that the denial of the reduction for acceptance of responsibility was not inconsistent with the district court’s “conservative” estimate of the amount of drugs that defendant delivered. U.S. v. Castaneda, __ F.3d __ (7th Cir. Oct. 2, 2018) No. 18-1541.
8th Circuit affirms court’s rejection of policy argument about meth guidelines. (251)(742) Defendant argued that the court erred by not varying downward based on a policy disagreement with the guidelines range imposed in cases involving methamphetamine. He noted that in U.S. v. Battiest, 553 F.3d 1132, 1136 (8th Cir. 2009) the court stated that “the Supreme Court held it was not an abuse of discretion for a district court to vary from the Guidelines based on its policy disagreement concerning the disparity between crack and powder cocaine sentences.” The Eighth Circuit found no error. Battiest further stated that the Supreme Court “did not mandate that district courts consider the crack/powder sentencing disparity and [sentencing courts] do not act [] unreasonably, abuse[] [their] discretion, or otherwise commit[] error if they do not.” Here, the district court expressly considered defendant’s policy argument and rejected it. This was within its discretion. U.S. v. Sharkey, __ F.3d __ (8th Cir. July 18, 2018) No. 17-1480.
10th Circuit upholds sentence based on “Ice” rather than methamphetamine mixture. (251)(765) Defendant pled guilty to counts arising out of his role in a methamphetamine distribution conspiracy. He argued for the first time on appeal that the district court erred in calculating his guidelines range on the basis of Ice, rather than on the basis of a methamphetamine mixture. Guideline §2D1.1 defines the term “Ice” as “a mixture or substance containing d methamphetamine hydrochloride of at least 80% purity.” It also provides that “[i]f a mixture of substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.” The PSR found that since the meth mixture was over 80% pure, it was considered “Ice” for the purposes of the guideline. Defendant did not object to this or any other portion of the PSR. Consequently, the district court properly adopted these findings and determination as its own. U.S. v. Godinez-Perez, __ F.3d __ (10th Cir. Dec. 22, 2016) No. 15-3159.
10th Circuit says meth amendment precluded sentence reduction. (192)(251) Defendant was convicted of methamphetamine offenses, and his sentence was upheld on appeal. Thereafter, the Sentencing Commission adopted Amendment 782 which lowered the base offense levels for certain drug weights, and Amendment 750, which had the opposite effect—increasing the marijuana equivalency of each gram of meth. Defendant successfully moved for a sentence reduction under 18 U.S.C. §3582(c)(2), arguing that the only relevant amendment was Amendment 782. He did not dispute that §1B1.10(b)(1) required application of both amendments, but argued that his prior appeal settled the issue of drug weight, and that applying Amendment 750 would violate the ex post facto clause. The Tenth Circuit rejected the argument, finding that Amendment 750 precluded a sentence reduction. At resentencing, the district court was required to recalculate drug weight based on the law at that time. By then, Amendment 750 had been made retroactive. The ex post facto clause is not violated by a guideline amendment that merely “narrows a district courts’ discretion to decrease a defendant’s sentence” and does not increase the punishment for his crime. U.S. v. Womack, __ F.3d __ (10th Cir. Aug. 12, 2016) No. 15-6202.
9th Circuit reverses where court used drug quantify greater than found by jury. (245)(251) At defendant’s trial for possession of methamphetamine with intent to distribute, the jury found by special verdict that defendant’s offense involved less than 50 grams. At sentencing, the district court found that defendant’s offense involved more than 50 grams. The court then sentenced defendant to 240 months, the maximum sentence for a defendant convicted of a meth offense involving less than 50 grams. The Ninth Circuit held that the district court was not entitled to make a drug quantity finding in excess of that found by the jury, even though that finding did not increase defendant’s maximum sentence. U.S. v. Pimentel-Lopez, __ F.3d __ (9th Cir. July 15, 2016) No. 14-10210.
8th Circuit accounts for additional meth quantity in drug proceeds or shipments that were not caught. (251)(254) Defendant pled guilty to methamphetamine conspiracy charges. The court attributed to him 4.5 kilograms of actual meth. Defendant did not dispute 4.472 kilograms of actual meth, but argued that the court erred in attributing the additional 28 grams. The Eighth Circuit upheld the drug quantity calculation, based on either of two different methods. First, the court could have converted the drug proceeds that had been found in the co-conspirator houses into at least 28 grams of meth. The court also could have considered meth in packages defendant admitted he sent but were not intercepted by the government. During his proffer interview, defendant admitted to managing the shipment of four packages of actual meth. Two of those packages were intercepted and contained 1,968 grams and 2,363 grams of high purity methamphetamine. The drugs in the other two packages could have accounted for the additional 28 grams. U.S. v. Alcade, __ F.3d __ (8th Cir. Apr. 12, 2016) No. 15-1329.
6th Circuit says jury was not required to determine amount of iodine. (251) Defendant worked for a store that sold Polar Pure, an iodine-based water purification product that could be used to manufacture methamphetamine. He was convicted of conspiracy and distribution of iodine knowing it would be used to manufacture meth, in violation of 21 U.S.C. §§841(c)(2), 843(a)(6), and 846. The district court found that defendant was involved in 1.3 kilograms or more of iodine. Citing U.S. v. Dado, 759 F.3d 550 (6th Cir. 2014), defendant argued that drug quantity was an element of §841, and therefore the jury should have found a specific quantity of iodine. The Sixth Circuit found no error. Dado involved the statutory minimum and maximum in §841(b)(1)(A), and thus, required a jury finding under Apprendi. Here, however, the amount of iodine had no impact on the statutory maximum penalty, so the district court was authorized to determine the iodine quantity for which defendant was responsible. U.S. v. Honeycutt, __ F.3d __ (6th Cir. Mar. 4, 2016) No. 14-5790.
9th Circuit finds insufficient evidence of mandatory minimum quantity of meth. (245)(251) Defendant told a confidential informant that he could produce a pound of methamphetamine. The transaction fell through, but defendant was charged with possession of more than 50 grams of methamphetamine with intent to distribute. The government did not seize any drugs, but at trial an FBI agent testified that only four of the 30 controlled purchases that it had made between 2008 and 2014 involved meth below 90% in purity. The Ninth Circuit found the evidence insufficient to show that defendant possessed any particular amount of meth, so he was not subject to the mandatory minimum sentence for 50 grams or more of methamphetamine. U.S. v. Lemus, __ F.3d __ (9th Cir. Mar. 2, 2016) No. 14-50355.
5th Circuit says court need not distinguish between d-meth and L-meth. (251) Defendant challenged his methamphetamine sentence, arguing that the district court erred by not distinguishing between d-methamphetamine and L-methamphetamine when calculating the quantity of methamphetamine (actual) attributable to him. Unlike d-meth, L-meth “produces little or no physiological effect when ingested.” However, a 1995 amendment to §2D1.1 indicates that courts need not distinguish between d-meth and L-meth. Amendment 518 explained that it deleted “the distinction between d- and L-methamphetamine in the Drug Equivalency Tables in the Commentary to §2D1.1. L-methamphetamine … is rarely seen and is not made intentionally, but rather results from a botched attempt to produce d-methamphetamine.” In light of Amendment 518, the Fifth Circuit concluded that the district court did not need to distinguish between d-meth and L-meth when calculating the quantity of methamphetamine (actual) attributable to defendant. U.S. v. Ramirez-Olvera, __ F.3d __ (5th Cir. Sept. 22, 2015) No. 14-11276.
Supreme Court allows sentence for crack cocaine even though jury found conspiracy to sell cocaine or crack. (251) Petitioners were charged with conspiring to sell mixtures containing cocaine and cocaine base. The jury was instructed that the government had to prove that the conspiracy involved measurable amounts of “cocaine or cocaine base,” and it returned a general guilty verdict. The judge found that each petitioner’s conduct involved both cocaine and crack and sentenced based on the crack guidelines. On appeal, for the first time, petitioners argued that the word “or” in the jury instruction required the judge to assume that the conspiracy involved only cocaine. In a unanimous opinion written by Justice Breyer, the Supreme Court affirmed the crack sentence, holding that under the guidelines, the judge, not the jury determines the kind and quantity of controlled substances. Moreover, even if the jury had found the substance was cocaine, the “relevant conduct” section of the guidelines, 1B1.3, requires the judge to consider all drugs that are “part of the same course of conduct or common scheme or plan as the offense of conviction.” Petitioners’ argument might have made a difference if the guideline sentence for crack had exceeded the statutory maximum for powder cocaine, but the sentences here were within the statutory limits for powder cocaine. Edwards v. U.S., 523 U.S. 511, 118 S.Ct. 1475 (1998).
Supreme Court holds LSD statute includes weight of blotter paper even though LSD guideline does not. (251) The Supreme Court in Chapman v. U.S., 500 U.S. 453 (1991), ruled that 21 U.S.C. §841(b) requires the court to include the weight of the carrier medium, typically blotter paper, in determining the weight of the LSD for mandatory minimum sentencing purposes. Thereafter, effective November 1, 1993, the Sentencing Commission revised the method of calculating the weight of LSD in the Sentencing Guidelines, instructing courts to give each dose of LSD on a carrier medium a constructive or presumed weight of 0.4 milligrams. This Amendment 488 was made retroactive by Amendment 502. In the present case, defendant argued that the presumptive weight in the sentencing guidelines should also be used to calculate the weight for mandatory minimum sentencing purposes under the statute, 841(b). The Ninth Circuit adopted this position in U.S. v. Muschik, 49 F.3d 512, 518 (9th Cir. 1995), but every other circuit has rejected the argument. In a unanimous opinion written by Justice Kennedy, the Supreme Court agreed with the majority of the circuits and rejected the Ninth Circuit’s view. The court concluded that the Commission’s choice of an alternative methodology for weighing LSD “does not alter our interpretation of the statute in Chapman.” Thus, in sentencing under § 841(b)(1), the court must use the actual weight of the blotter paper with its absorbed LSD. Neal v. U.S., 516 U.S. 284, 116 S.Ct. 763 (1996).
Two Supreme Court Justices would review “uningestible waste” case. (251) Three petitions for writ of certiorari raised the question of whether waste byproducts that are not ingestible or marketable may be included in calculating the weight of a “mixture or substance” containing a “detectable amount of . . . methamphetamine” under §2D1.1 of the sentencing guidelines. Dissenting from the denial of the petitions, Justices White and Blackmun expressed concern that the circuits are “deeply split” on the issue, and as a result of this conflict, individuals convicted of violating federal law are subject to widely disparate sentences depending only on the federal circuit in which their cases are brought. The Justices noted that these petitions marked the sixth time the issue has come before the court in two terms. Sewell v. U.S., 507 U.S. 953, 113 S.Ct. 1367 (1993).
Supreme Court includes weight of blotter paper in determining the sentence for LSD. (251) In a 7-2 opinion written by Chief Justice Rehnquist, the Supreme Court held that 21 U.S.C. § 841(b)(1)(B) which calls for a five year mandatory minimum sentence for distributing more than 1 gram of “a mixture or substance detaining a detectable amount” of LSD, requires that the weight of the carrier medium — in this case blotter paper — be included when determining the appropriate sentence. The court ruled that since the word “mixture” has no established common law meaning, it must be given its ordinary meaning. “The LSD crystals left behind when the solvent evaporates are inside of the paper, so they are comingled with it.” The court also rejected the defendant’s arguments that this interpretation violated due process or was unconstitutionally vague. Justices Stevens and Marshall dissented. Chapman v. U.S., 500 U.S. 453, 111 S.Ct. 1919 (1991).
1st Circuit holds that “yield analysis” claim did not preserve argument that aggregate weight of mixture was wrong starting point for calculation. (251) Police seized large quantities of ephedrine and pseudoephedrine, common precursor chemicals for the manufacture of methamphetamine, from defendant’s home. He claimed on appeal that the district court erred when it used the aggregate weight of the entire mixture containing the precursor chemicals to calculate his sentence. However, at sentencing, trial counsel had argued that the court ought to estimate the weight by using a “yield analysis” that calculated how much meth could be processed from pseudoephedrine. Thus, defendant did not object to using the 53.08 grams of the mixture as the starting point of the sentencing calculation. The Eighth Circuit held that defendant failed to preserve his argument that the aggregate weight of the mixture was the wrong starting point for the sentencing calculation. Although defendant sought to re-characterize trial counsel’s objection as one challenging the use of the 53.08 grams of mixture as the starting point of the calculation, in fact, counsel bypassed this ground and focused instead on a legal theory as to how the guidelines ought to apply to the 53.08 grams. By failing to object to the use of the aggregate weight of the mixture, defendant’s trial counsel forfeited that issue for appeal. U.S. v. Goodhue, 486 F.3d 52 (1st Cir. 2007).
1st Circuit finds no plain error in court’s use of total weight of meth mixture to determine base offense level. (251) Police found a number of chemicals at defendant’s home, including 65.87 grams of red phosphorous and two mixtures containing undetermined amounts of ephedrine and pseudoephedrine. Ephedrine and pseudoephedrine are common precursor chemicals for the manufacture of methamphetamine. The district court based defendant’s sentence on the total weight of the mixtures containing undetermined amounts of meth precursor components. Defendant argued, for the first time on appeal, that in the absence of evidence of the pure weights of the controlled substances, the court erred by not applying § 2D1.11 to the 65.76 grams of red phosphorous. The First Circuit found no plain error. Section 2D1.11 is straightforward where the weights of the pure precursor chemicals are known. It is more difficult where the precursor chemicals are mixed with other substances that do not constitute controlled substances. It does not directly address the general issue of such mixtures, except that when a mixture is in a “tablet” form, only the weight of the pure precursor chemicals is applied to the drug quantity table, not the total weight of the tablet. However, Note A to § 2D1.1 states that unless otherwise specified, the weight of a controlled substance refers to the entire weight of any mixture or substances containing a detectable amount of the substance. The court considered the inconsistency of using the aggregate weight of mixtures containing undetermined amounts of ephedrine and pseudoephedrine under § 2D1.11 in light of the tablet note’s exclusion of substance weight not derived from a controlled substance. The court addressed this situation by applying three methods (one suggested by defense counsel, the other by the prosecutor, and the third from the court’s own independent judgment). All three methods derived from the starting point of 53.08 grams of mixture attributable to defendant, and all three methods resulted in the same base offense level of 28. There was no plain error. U.S. v. Goodhue, 486 F.3d 52 (1st Cir. 2007).
1st Circuit holds that failure to object to court’s failure to determine weight of precursor chemicals obviated need for hearing. (251) Police seized large quantities of ephedrine and pseudoephedrine, common precursor chemicals for the manufacture of methamphetamine, from defendant’s home. He claimed, for the first time on appeal, that the court erred when it used the aggregate weight of the entire mixture containing the precursor chemicals to calculate his sentence, and that it should have determined the weight of the ephedrine and pseudoephedrine. The First Circuit found this argument akin to a claim that the court ought to have held an evidentiary hearing on the weight of the pure precursor chemicals, and rejected it. Defendant failed to object to the court’s application of the sentencing guidelines without an evidentiary hearing as to the pure weight of the controlled substance. This effectively obviated the need for an evidentiary hearing. U.S. v. Goodhue, 486 F.3d 52 (1st Cir. 2007).
1st Circuit says role increase and departure for drug purity are not double counting. (251) (Defendant and his co-defendant arranged the sale of very pure heroin (87-96% pure) to a DEA confidential informant. He complained that a leadership enhancement and an upward departure based on the heroin’s high purity was double counting, because Note 9 to § 2D1.1 explains that a drug’s high purity is probative of the defendant’s role in the chain of distribution. The First Circuit found no double counting, since the leadership enhancement was not based on an inference from the heroin purity. Defendant used “mules” and “lackeys” to make deliveries for him and exercised leadership in some of these deliveries. Furthermore, note 9 does not say that drug purity and a defendant’s leadership role are mutually exclusive sentencing considerations. U.S. v. Rodriguez, 63 F.3d 1159 (1st Cir. 1995).
1st Circuit says amendment did not require court to only use weight of actual P2P in mixture. (251) Defendant manufactured P2P in a laboratory. Relying on a commentary amendment to § 2D1.1(c), he argued that the district court wrongly considered the total weight of the mixtures he produced rather than the actual P2P in those mixtures. The amendment provides that the weight of materials that must be separated from the controlled substance before use should be excluded. The First Circuit held that because the mixtures did not contain surplus materials that needed to be separated from the P2P before it was usable, the weight of the entire mixture was properly considered by the district court. The commentary excludes only materials that are unusable or unmarketable, such as those used to transport controlled substances. Experts testified that the mixtures produced by defendant could be used to make methamphetamine without separation. U.S. v. Campbell, 61 F.3d 976 (1st Cir. 1995).
1st Circuit suggests defendant seek retroactive application of LSD amendment in district court. (251) Defendant sought to be resentenced under an amendment that became effective after he was sentenced. The amendment altered the method for computing the weight of LSD, and was made retroactive by the Sentencing Commission. The 1st Circuit nonetheless affirmed defendant’s original sentence. Recomputing the weight of the LSD presents issues of fact and might involve other questions about which defendant and the government differ. The statute that provides for retroactive adjustment, 18 U.S.C. § 3582(c)(2), allows a defendant to file a motion with the district court seeking such an adjustment. The court stated that its affirmance of defendant’s sentence was without prejudice to his right to file such a motion. U.S. v. Tracy, 36 F.3d 199 (1st Cir. 1994).
1st Circuit considers entire weight of pharmaceutical pills. (251) Defendant and his son, both pharmacists in the same pharmacy, conspired to dispense about 18,000 pills without a prescription. The 1st Circuit held that the district court properly included the weight of the entire pill and not just the weight of the active narcotic ingredients for sentencing purposes. The court simply followed the instructions in § 2D1.1. U.S. v. Limberopoulos, 26 F.3d 245 (1st Cir. 1994).
1st Circuit holds that amendment to LSD guideline did not govern statute. (251) In Chapman v. U.S., 500 U.S. 453 (1991), the Supreme Court construed the term “mixture or substance” in 21 U.S.C. § 841(b)(1)(B)(v), as including the weight of LSD’s carrier medium in the total weight of the LSD. Effective November 1, 1993, the Sentencing Commission amended guideline § 2D1.1 to prescribe a less stringent formula for calculating LSD quantity. The 1st Circuit held that Chapman continues to control the meaning of the term “mixture or substance” in 21 U.S.C. § 841(b)(1)(B)(v). Thus, an LSD quantity calculation is controlled by Chapman for mandatory minimum purposes, and by the Commission amendment for guideline sentencing purposes. U.S. v. Boot, 25 F.3d 52 (1st Cir. 1994).
1st Circuit upholds “either/or” approach to determining methamphetamine sentence. (251) Under section 2D1.1(c) and its accompanying footnote, the court is to determine the entire weight of a methamphetamine mixture and the net weight of the pure methamphetamine in the mixture, and then use whichever yields the greater sentence. Defendant argued that the footnote should be discarded in favor of the “market-oriented” approach in Chapman v. U.S., 111 S.Ct. 1919 (1991). The 1st Circuit upheld the “either/or” approach outlined in section 2D1.1(c) and its footnote, which is patterned on 21 U.S.C. § 841(b)(1)(A)(viii) and (B)(viii). The market-oriented approach that defendant inferred from Chapman would blunt the power of Congress to prescribe criminal sanctions and frustrate its mandate in the statute from which the guideline was patterned. U.S. v. Cotton, 15 F.3d 4 (1st Cir. 1994).
1st Circuit rules that defendant waived drug purity challenge. (251) The Drug Quantity Table prescribes a base offense level of 40 for offenses involving 10-30 kilograms of “methamphetamine (actual)”, but only 36 for the same quantity of adulterated methamphetamine. Defendant argued for the first time on appeal that since the record did not establish the purity of the methamphetamine for which he was responsible, his base offense level should have based on adulterated methamphetamine. The 1st Circuit found that this claim was waived, since it was never raised below. Although defense counsel consistently referred to base offense levels corresponding to adulterated methamphetamine, he did not expressly raise this issue either at sentencing or in opposition to the PSR. U.S. v. Barnett, 989 F.2d 546 (1st Cir. 1993).
1st Circuit upholds consideration of gross weight of LSD-bearing liquid. (251) The 1st Circuit affirmed the district court’s decision to base defendant’s sentence on the gross weight of LSD-impregnated blotter paper and LSD-bearing liquid that he sold to an undercover agent. In Chapman v. U.S., 111 S.Ct. 1919 (1991), the Supreme Court held that sentencing based on the weight of blotter paper containing LSD did not violate due process. Even assuming that Chapman left room for a constitutional challenge in a case involving a particularly heavy or unusual carrier, this was not such a case. Blotter paper appeared to be the “carrier of choice” for LSD, and defendant presented no evidence that the liquid here (apparently water) was an unusual medium in which to mix LSD. U.S. v. Lowden, 955 F.2d 128 (1st Cir. 1992).
1st Circuit includes suitcase bonded with cocaine in total weight of cocaine. (251) Defendant was arrested carrying suitcases made of cocaine. The 2.5 kilograms of cocaine had been chemically bonded with the acrylic suitcase material. The 1st Circuit affirmed the district court’s decision to include the total weight of the suitcase, less all metal parts (about 12 kilograms), instead of the weight of the cocaine. It found that the reasoning of the Supreme Court in Chapman v. U.S., 500 U.S. 453, 111 S.Ct. 1919 (1991), was applicable in all but one respect. Chapman held that the weight of blotter paper carrying LSD should be included in the calculation of the weight of the LSD. The difference in this case is that unlike blotter paper, the suitcase material cannot be consumed, and the cocaine must be separated from the suitcase material prior to ingestion. However, this fact alone did change the outcome, “for ‘ingestion’ would not seem to play a critical role in the definition of ‘mixture’ or ‘substance.’” Moreover, the effort required to create a chemically bonded cocaine/acrylic suitcase suggested a serious drug smuggling effort of a sort that might warrant increased punishment. U.S. v. Mahecha-Onofre, 936 F.2d 623 (1st Cir. 1991).
1st Circuit holds that failure to consider purity of drugs does not violate due process. (135) Defendant argued that the sentencing guidelines violate due process because they fail to consider the purity of drugs involved when calculating sentences. The 8th Circuit held the argument to be without merit, as “basing sentencing on the quantity of drugs without regard to purity is reasonably related to the proper legislative purpose of penalizing large volume drug traffickers more harshly.” U.S. v. Luster, 896 F.2d 1122 (8th Cir. 1990).
2nd Circuit holds guidelines’ LSD amendment does not apply to mandatory minimums. (251) Defendant argued that the amendment to § 2D1.1(c) which equated each dose of LSD to 0.4 mg of LSD for sentencing purposes also applied in determining whether a statutory mandatory minimum applies. The Second Circuit disagreed, concluding that the guideline amendment did not effect the method of determining weight for mandatory minimum purposes. The commentary clearly states that the new guidelines’ method does not override the statutory “mixture or substance” approach used to apply any mandatory minimum sentence. Moreover, the Sentencing Commission lacks authority to displace the statutory method. Judge Leval dissented. U.S. v. Kinder, 64 F.3d 757 (2d Cir. 1995).
2nd Circuit reverses consideration of weight of alcohol in which cocaine was mixed. (251) Defendant was arrested attempting to smuggle several liqueur bottles containing a liqueur/cocaine mixture into the United States. Based on U.S. v. Acosta, 963 F.2d 551 (2nd Cir. 1992), the 2nd Circuit reversed the district court’s consideration of the combined weight of the liqueur/cocaine mixture for sentencing purposes. The cocaine was neither usable nor ingestible without a chemical extraction process, and was therefore not ready for either retail or wholesale distribution. Therefore, it was not unreasonable to consider the liquid waste the functional equivalent of packaging material which quite clearly is not to be included in the weight calculation. U.S. v. Salgado-Molina, 967 F.2d 27 (2nd Cir. 1992).
2nd Circuit says drug weight cannot include unusable portion of uningestible and unmarketable mixture. (251) Defendant brought six bottles containing a mixture of creme liqueur and cocaine into the United States. The creme liqueur was merely a mask to conceal the cocaine. Before the cocaine could be distributed, it would have to be distilled out of the liqueur. In its mixture form, the creme liqueur was not ingestible and therefore not marketable. The 2nd Circuit held that it was improper to base defendant’s sentence on the total weight of the creme liqueur/cocaine mixture, rather than the weight the cocaine by itself. The court distinguished Chapman v. U.S., 111 S.Ct. 1919 (1991), which held that for sentencing purposes, the weight of LSD includes weight of its carrier medium blotter paper. In Chapman, the LSD and blotter paper were both ingestible. However, in this case, the liquid waste could be viewed as the equivalent of packaging material. The critical issue is marketability, not purity. A defendant’s culpability must be based on the amount of usable drugs he brings to market. U.S. v. Acosta, 963 F.2d 551 (2nd Cir. 1992).
3rd Circuit holds that low drug purity was not reason to base sentence solely on pure meth found in mixture. (251) Defendant argued that he did not sell more than 500 grams of a mixture containing methamphetamine, because the drugs were so diluted they were effectively unmarketable and thus did not constitute a “mixture.” He argued that his sentence should be based on only the weight of the pure meth involved, about 27 grams. The Third Circuit rejected this argument. While § 841 does not explicitly define “mixture,” the Supreme Court has said that a drug combined with a carrier medium “used to facilitate the distribution of the drug” is a mixture.” Chapman v. U.S., 500 U.S. 466 (1991). Whether a drug plus its carrier is a mixture turns not on the purity of the controlled substance, but rather on how “combined” the substances are, and whether the impure drug is “marketable.” The district court did not clearly err in finding that the drugs defendant sold, which ranged between 1.2 percent and 5.9 percent pure and were on average 2.7 percent pure, contained a “detectable amount of methamphetamine.” The district court correctly refused to depart downward based on the low purity of the drug. If courts could depart whenever they were faced with less than average purity, “the Sentencing Commission’s decision to focus on the weight of the drugs in sentencing would be eviscerated.” U.S. v. Gori, 324 F.3d 234 (3d Cir. 2003).
3rd Circuit upholds drug quantity finding where only three kilograms were needed to support sentence. (251) Based on the testimony of a DEA chemist that the amount of methylamine found at two labs would produce 73.2 kilograms of pure methamphetamine, the district court found that defendant’s offense level was 38. Defendant presented no evidence to contradict the court’s findings. Rather, defendant argued that the actual amount involved was lower than 73.2 kilograms because he could have sold some of the methylamine and the chemist admitted that some methylamine gas could have evaporated during the cooling process. The Third Circuit held that the district court’s finding was not clearly erroneous because only three kilograms of actual methamphetamine were required to place defendant at base offense level of 38. Defendant did not provide any evidence that 70.2 kilograms would be lost due to either factor. U.S. v. Chorin, 322 F.3d 274 (3d Cir. 2003).
3rd Circuit holds LSD guideline inapplicable for mandatory minimum purposes. (251) Chapman v. U.S., 500 U.S. 453 (1991) requires an LSD sentence to be based on the combined weight of the LSD and the blotter paper carrier medium. Defendant moved to reduce his sentence under the November 1993 amendment to guideline § 2D1.1(c) which assigns a weight of .4 mg to a dose of LSD. The Third Circuit refused to reduce defendant’s sentence, holding that the amendment does not apply in computing sentences for mandatory minimum purposes. The amended language expressly excludes the use of the .4 mg amount in computing statutory mandatory minimum sentences. Thus, even if defendant’s guideline range were reduced by applying the amendment, his 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1) would not be affected. U.S. v. Hanlin, 48 F.3d 121 (3d Cir. 1995).
3rd Circuit holds that 65.1 grams of cocaine and 2976 grams of boric acid was not a “mixture.” (251) Defendants attempted to sell a DEA informant three one-kilogram packages purporting to be cocaine. The packages actually contained 65.1 grams of cocaine and 2976 grams of boric acid, but they were constructed to fool an unsuspecting buyer into believing that they were comprised entirely of cocaine. The 3rd Circuit held that the boric acid and cocaine blocks were not a “mixture” for purposes of sentencing under section 2D1.1. First, the boric acid and cocaine were not mixed in the package: each had distinct colors and could be distinguished with the naked eye. Although they were in close proximity, they remained separate layers in the package. Second, boric acid is not a traditional carrier medium for cocaine. Finally, the boric acid did not facilitate the distribution of the cocaine, it functioned more like packaging material. The court agreed with the usable/unusable distinction adopted by the 2nd, 6th, 9th and 11th Circuits. U.S. v. Rodriguez, 975 F.2d 999 (3rd Cir. 1992).
3rd Circuit holds that total weight of drugs found should be used for determining offense level. (251) Defendant argued that 100 grams of Euphoria found in defendant’s bedroom was only 2.7 % pure, and that only the amount of pure Euphoria, rather than the total weight of the product, could be used in calculating the guideline base. The 3rd Circuit rejected this argument, noting that defendant made no attempt at trial or at the sentencing hearing to prove that the other ingredients contained in the Euphoria were manufacturing by-products rather than a “cut.” U.S. v. Touby, 909 F.2d 759 (3rd Cir. 1990), affirmed on other grounds, sub nom. Touby v. U.S., 500 U.S. 160, 111 S.Ct. 1752 (1991).
3rd Circuit holds that Schedule II substances are subject to full weight conversion. (251) Defendant was sentenced to 7-1/2 years for four counts of illegally distributing Schedule II, III and IV substances. In determining the sentence the district court used the total weight of Schedule III and IV substances and the “pure” weight of the Schedule II substances. The 3rd Circuit held that the court erred in not considering the entire weight of the Schedule II substance, as the guidelines erect a presumption in favor of weighing the entire substance to determine heroin equivalence. Further the statutes defining drug related offenses base sentences on gross weights of mixtures or substances containing controlled substance. “In short, where Congress provides for full weight conversion of Schedule I, III and IV substances, there is no self-evident reason to conclude that it meant to treat Schedule II drugs differently.” U.S. v. Gurgiolo, 894 F.2d 56 (3rd Cir. 1990).
4th Circuit excludes weight of liquid solvent from weight of “liquid LSD.” (251) Defendant sold 80 doses of LSD on blotter paper, and 7.6 milliliters of “liquid LSD.” He moved to reduce his sentence under Amendment 488, which established a uniform weight of 0.4 mgs per dose for LSD on a carrier medium. The district court construed the amendment as affecting only the LSD on the blotter paper. The Fourth Circuit held that in cases involving liquid LSD, application note 18 (also added by Amendment 488) requires the court to use the weight of the pure LSD alone, excluding any liquid solvent. Application note 18 states that in the case of “liquid LSD (LSD that has not been placed onto a carrier medium) using the weight of the LSD alone to calculate the offense level may not adequately reflect the seriousness of the offense. An upward departure may be warranted.” Thus, the plain language of the note supports using the weight of the LSD alone, excluding the weight of the liquid solvent. If the court cannot ascertain the weight of the pure LSD, it should determine the number of dosage units and multiply by 0.05 mg. The court is free to depart if the conversion factor does not reflect the seriousness of the offense. U.S. v. Turner, 59 F.3d 481 (4th Cir. 1995).
4th Circuit bases sentence on gross weight of drugs prescribed rather than active ingredients. (251) Defendant, a physician, was convicted of distributing controlled substances for other than legitimate medical purposes. He argued that his sentence under § 2D1.1 should be based on the weight of the drugs’ active ingredients rather than the gross weight of the controlled substances and their carriers. The Fourth Circuit found that it was bound by circuit precedent to reject his claim. U.S. v. Singh, 54 F.3d 1182 (4th Cir. 1995).
4th Circuit approves “gross weight approach” in drug equivalency tables. (251) The presentence report calculated the combined weight of the drugs and used the Drug Equivalency Tables to convert the total to a heroin equivalency. Defendant argued that a sentence based on the gross weight of the pharmacological drugs he prescribed violated his due process rights. The Fourth Circuit disagreed, ruling that the drug equivalency tables are merely an extension of the quantity based approach previously upheld in U.S. v. Whitehead, 849 F.2d 849 (4th Cir. 1988). The court also found it consistent for a sentencing court to consider purity in determining a defendant’s role in the offense under guideline § 2D1.1 and not to consider purity in the drug equivalency tables. U.S. v. Bayerle, 898 F.2d 28 (4th Cir. 1990).
4th Circuit rules weight of LSD blotter paper is to be considered in determining base offense level. (251) The 4th Circuit, agreeing with several others, held that the combined gross weight of uncut LSD and any other carrier mediums seized may be used for the purpose of determining base offense levels under the drug quantity tables of § 2D1.1. While questionable results may follow from this holding the clear language of guideline § 2D1.1 and the Anti Drug Abuse Act of 1986 mandate this result. U.S. v. Daly, 883 F.2d 313 (4th Cir. 1989).
5th Circuit says fact that meth was imported was sufficient to apply enhancement. (251) Defendant pled guilty to methamphetamine conspiracy charges, and received a two-level increase under § 2D1.1(b)(5), which applies if the offense involved the importation of methamphetamine. In U.S. v. Rodriguez, 666 F.3d 944 (5th Cir. 2012), the court explained that “[t]he scope of actions that ‘involve’ the importation of drugs is larger than the scope of those that constitute the actual importation.” Based on Rodriguez, defendant argued that the enhancement applies only if a defendant has proximity, familiarity, and repeated business with the importers. The Fifth Circuit disagreed, holding that the distribution (or possession with intent to distribute) of imported methamphetamine, even without more, may subject a defendant to the § 2D1.1(b)(5) enhancement. Because the meth defendant possessed was imported from Mexico, the enhancement was proper. U.S. v. Foulks, 747 F.3d 914 (5th Cir. 2014).
5th Circuit holds that § 2D1.1(b)(5) enhancement does not require knowledge that meth was imported. (251) Section 2D1.1(b)(5) provides for a two-level increase if “the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defen-dant knew were imported unlawfully ….” Defendant argued that knowledge of the unlawful importation was required for the finished product as well as for the ingredients. The Fifth Circuit disagreed, ruling that the enhancement for an offense involving “the importation of amphetamine or methamphetamine” has no scienter requirement. The plain language of § 2D1.1(b)(5) unambiguously limits the qualification, “that the defendant knew were imported unlawfully,” to contraband that was manufactured from one or more of the listed chemicals; it does not apply to “the importation of amphetamine or methamphetamine,” i.e., the end products of such manufacturing. U.S. v. Serfass, 684 F.3d 548 (5th Cir. 2012).
5th Circuit holds that offense “involved the importation” of methamphetamine. (251) Defendant pled guilty to meth charges, and received a § 2D1.1(b)(4) increase for an offense that “involved the importation” of methamphetamine. The meth was transported from Mexico to Dallas, then stored in the “stash house” of its local leader, who sold the meth to Vazquez, who sold it to defendant. Defendant argued that the enhancement was improper because the importation was complete before she came into possession of the meth. The Fifth Circuit upheld the enhancement. Even if the importation was complete after the drugs were delivered to the stash house, that would mean only that defendant did not import the drugs, not that her possession did not involve importation. The scope of actions that “involve” the importation of drugs is larger than the scope of those that constitute actual importation. “Involved” means “included in the process of.” Defendant’s proximity familiarity, and repeated business with the importers justified the enhancement. There was sufficient evidence to support the finding that defendant knew the drugs were imported. U.S. v. Rodriguez, 666 F.3d 944 (5th Cir. 2012).
5th Circuit infers that unseized meth had similar purity to seized meth. (251) Defendant pled guilty to methamphetamine charges. The Fifth Circuit found sufficient evidence to support the district court’s finding that defendant was responsible for 1.66 kilograms of meth. There was testimony that she purchased about eight ounces of meth from Vasquez on six to ten occasions. The three samples of a meth mixture recovered from defendant had purities of 97.1%, 97.6% and 98.2% methamphetamine. There was also testimony that Vasquez was defendant’s sole supplier. Further, all of the transactions between defendant and Vasquez were at the constant price of $1,100 per ounce of mixture. It was not clear error to infer that the unseized drugs had similar purity levels. In order to reach 1.66 kilograms, the district court only had to conclude that the unseized mixture was more than 80% pure, a conclusion for which there was ample evidence. U.S. v. Rodriguez, 666 F.3d 944 (5th Cir. 2012).
5th Circuit holds that determination of pseudoephedrine quantity was not plain error. (251) Defendant pled guilty to methamphetamine and pseudoephedrine charges. The PSR attributed 1136.88 grams of pseudoephedrine to him, and defendant did not object to this quantity at sentencing. The PSR did not, however, explain how the probation officer arrived at this quantity. On appeal, defendant argued that it was not clear whether the 1136.788 grams represented pure pseudoephedrine or the total tablet weight. The Fifth Circuit held that the determination of the quantity of pseudoephedrine to be used to calculate a defendant’s offense level was a question of fact. A question of fact “capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” Because the court could have reviewed the pharmacy logs had defendant objected at sentencing, there was no plain error. U.S. v. Conn, 657 F.3d 280 (5th Cir. 2011).
5th Circuit rejects due process challenge to methamphetamine ratios. (251) Section 2D1.1’s Drug Equivalency Table provides that one gram of a mixture of substance containing methamphetamine is equivalent to two kilograms of marijuana, whereas one gram of actual methamphetamine is equivalent to 20 kilograms of marijuana. The Fifth Circuit rejected defendant’s argument that the 10:1 ratio was irrational and its application arbitrary, such that it violated due process. The 10:1 ratio was supported by a rational basis because the pure product is more concentrated and can be cut into larger quantities for resale. The sentencing scheme punishes more severely the sophisticated cooks who could otherwise manipulate the guidelines by producing smaller quantities of more concentrated meth. The application is not arbitrary. The choice of which multiplier to use is not determined by the language of the indictment. Even if the indictment alleges possession of a mixture or substance, the guidelines’ commentary directs the court to apply the offense level determined by the weight of the pure meth in the mixture or substance if doing so would result in a higher offense level. U.S. v. Molina, 469 F.3d 408 (5th Cir. 2006).
5th Circuit reverses increase where no evidence of minor during defendant’s participation in meth conspiracy. (251) Defendant supplied ammonia tanks to Baldwin, the leader of a methamphetamine manufacturing conspiracy, and helped him store the tanks in a shed in Baldwin’s backyard. Police conducted a raid at the premises on May 24 as Baldwin was in the shed starting to manufacture meth. Baldwin’s wife was in the house with their infant daughter, who was less than 30 days old. The district court applied a six-level increase under § 2D1.1(b)(5) (C) increase for causing a substantial risk of harm to the life of a minor. The Fifth Circuit reversed, because there was no evidence of the presence of a minor during defendant’s participation in the conspiracy, nor evidence indicating that danger to a minor was reasonably foreseeable to him. Defendant’s participation in the conspiracy ceased no later than April 11. A wiretap and surveillance of Baldwin’s home began on that date, but DEA agents testified that defendant did not participate in any of the calls, and was not observed by surveillance cameras during this phase of the operation. Although Baldwin had other children, there was no evidence that any child other than the newborn was living in Baldwin’s house, or had even visited during the term of defendant’s involvement in the conspiracy. There was no evidence that defendant had encountered the pregnant wife personally, that he was aware of her pregnancy, or that he knew of the birth of Baldwin’s daughter after his last participation in the conspiracy. U.S. v. Simpson, 334 F.3d 453 (5th Cir. 2003).
5th Circuit holds that failure to object to calculation of P2P was ineffective assistance. (251) Police found in defendant’s methamphetamine lab a flask containing a detectable amount of phenylacetone (P2P), which is an input in the production of meth. The flask did not contain pure P2P, but a mixture containing 1.5 milligrams of P2P per milliliter of the mixture. The district court found that the offense involved 2500 milliliters of P2P, and did not, as required by the sentencing guidelines, subtract from the P2P mixture the volume of non-usable byproduct. See Application Note 1 to § 2D1.1. The Fifth Circuit found that the sentencing court clearly erred in concluding that defendant’s offense involved 2500 milliliters of P2P. Moreover, defense counsel was ineffective in failing to object to the court’s drug quantity finding. The amendment to the guidelines, defining what materials the court should exclude before weighing an illicit mixture, became effective about 19 months before defendant’s sentencing. By the time of sentencing, this circuit had ruled that non-consumable substances should be excluded from a sentencing calculation. See U.S. v. Towe, 26 F.3d 614 (5th Cir. 1994). The amount of P2P directly affected defendant’s sentence, and was prejudicial. U.S. v. Stricklin, 290 F.3d 748 (5th Cir. 2002).
5th Circuit says defendant entitled to PSR addendum prior to court’s consideration of § 3553 motion. (251) In 1989, defendant was sentenced to 20 years based on 8.5 gallons of an acetone mixture that contained a small amount of methamphetamine. Years later, defendant moved to modify his sentence based on a 1993 amendment that excludes from guideline calculations the weight of any waste products contained in a methamphetamine mixture. The probation office prepared an addendum to the original PSR using the 1994 edition of the guidelines. Defendant was never given a copy of the addendum to review. Without a hearing, the district court denied defendant’s motion. The Fifth Circuit held that defendant was entitled to notice of the contents of the addendum so that he could have the opportunity to respond to it or contest it. The court’s failure to disclose the addendum to defendant was not harmless. In the case of a retroactively applied guideline amendment, § 1B1.10(b) directs a court to consider the sentence it would have imposed had the amendment been in effect at the time the defendant was sentenced. The addendum to the PSR improperly used the 1994 edition of the guidelines, resulting in a guideline range that was considerably longer than the same calculation using the 1988 edition. U.S. v. Mueller, 168 F.3d 186 (5th Cir. 1999).
5th Circuit says amendment requires exclusion of material that must be separated from controlled substance before use. (251) Defendant pled guilty to a methamphetamine conspiracy and his sentence was based on the 9,892 grams of material found in a 2 1/2 gallon plastic container, even though only 5.96 grams of the material was methamphetamine. Thereafter, the Sentencing Commission adopted amendment 484 to guideline § 2D1.1, excluding from the guideline calculation any material that must be separated from a controlled substance before it can be used. The Commission made this amendment retroactive. Defendant then filed a 28 U.S.C. § 2255 motion to be resentenced under the new amendment. The district court denied relief. On appeal, the Fifth Circuit reversed, holding that although the § 2255 motion was not the proper remedy, the court should have reconsidered defendant’s sentence under 18 U.S.C. § 3583(c)(2), which gives a court power to resentence where a guideline amendment has been made retroactive by the Commission. The government conceded that the disputed material here had to be separated from the remaining liquid before it could be used. U.S. v. Levay, 76 F.3d 671 (5th Cir. 1996).
5th Circuit finds no ineffective assistance in failure to argue that D,L-meth is different from D-meth. (251) The district court sentenced defendant for possessing 9.761 grams of D-methamphetamine. However, a lab report showed that two of the three samples of methamphetamine tested were D,L-methamphetamine. In a 28 U.S.C. § 2255 motion, defendant argued that the government failed to prove the quantity of D-meth, as opposed to L-meth, in the samples used to calculate his sentence. He further contended that his counsel was ineffective for failing to raise this issue at sentencing. The Fifth Circuit rejected this argument. Defendant’s first claim could have been raised on direct appeal and was not. Section 2255 does not reach errors not of a constitutional or jurisdictional magnitude that could have been raised in a direct appeal. Counsel’s failure to object to treating D,L-meth like D-meth was not unreasonable, given the absence of any reference to D,L-methamphetamine in the guidelines and the lack of case law at the time on the subject. Judge Garza dissented. U.S. v. Seyfert, 67 F.3d 544 (5th Cir. 1995).
5th Circuit refuses retroactive application of LSD amendment where statutory minimum was controlling. (251) Defendant moved to reduce his sentence under 18 U.S.C. 3582(c)(2) based on the retroactive 1993 amendment to the LSD guideline in § 2D1.1(c). Before the amendment, the full weight of the carrier medium was considered, and defendant had a guideline range of 70-87 months. Under the new guideline, defendant would have had a guideline range of 24-30 months. However, the Fifth Circuit is one of the circuits that have held that the guideline amendment did not override the Supreme Court’s holding in Chapman v. U.S., 500 U.S. 453 (1991) that the weight of the carrier medium must be included in determining the statutory mandatory minimum. Accordingly, the Fifth Circuit upheld the district court’s refusal to reduce defendant’s sentence because he was still subject to a 60-month statutory minimum under 21 U.S.C. § 841(b)(1). U.S. v. Whitebird, 55 F.3d 1007 (5th Cir. 1995).
5th Circuit reverses where court misunderstood what portion of mixture was controlled substance. (251) Defendant’s original sentence was based on the entire weight of three containers holding 32.4 pounds of a slurry-liquid substance containing a detectable amount of phenylacetone. Defendant moved to reduce his sentence under a 1993 amendment to § 2D1.1(c), which provided that the weight of waste material is not included in the weight of a controlled substance. The district court found, based on expert testimony, that defendant was accountable for 6.18 pounds of phenylacetone, calculated by taking 20 percent of the entire weight of the mixture. The Fifth Circuit reversed, noting that neither expert testified that 20 percent of the entire mixture was phenylacetone. Rather, both experts said the mixture contained less than 91.55 grams of phenylacetone. Thus, the actual amount was significantly less than the 6.18 pounds found by the court. U.S. v. Mimms, 43 F.3d 217 (5th Cir. 1995).
5th Circuit refuses to apply amendment retroactively where defendant received substantial downward departure. (251) Based on the guideline amendment that retroactively excluded byproducts of drug manufacturing from drug quantity, defendant moved to modify her sentence under 18 U.S.C. § 3582(c)(2). She also claimed that the district court erroneously assumed that she was responsible for the type of methamphetamine that carries a higher offense level. The 5th Circuit upheld the court’s refusal to reduce defendant’s sentence, since she was already the beneficiary of a substantial § 5K1.1 downward departure. Application of § 3583(c) (2) is discretionary. Section 1B1.10(d) also states that a reduction based on the retroactive amendment of a guideline “may” be considered. There was no abuse of discretion. Defendant’s claim that she should have been sentenced based on L-methamphetamine was not cognizable under § 3582(c)(2). U.S. v. Shaw, 30 F.3d 26 (5th Cir. 1994).
5th Circuit says 2255 motion should have been treated as retroactivity motion under 3582(c)(2). (251) In a 28 U.S.C. § 2255 motion, defendant sought resentencing under the retroactive amendment to § 2D1.1 excluding the weight of waste materials used in manufacturing amphetamine. The district court denied the motion. On appeal, the 5th Circuit agreed that defendant’s claim was not cognizable under § 2255, but said the court should have treated it as a motion to modify his sentence under 18 U.S.C. § 3582(c)(2). It was unclear whether defendant was sentenced based on 28.26 pounds of phenylacetone, or based on 28.26 pounds of a substance containing 12 percent phenylacetone. On remand the district court should determine the actual amount of controlled substance in light of the amendment. U.S. v. Towe, 26 F.3d 614 (5th Cir. 1994).
5th Circuit excludes weight of liquid used to transport cocaine. (251) Defendant was arrested at the airport carrying two bottles containing a thick liquid which had cocaine distilled in it. The 5th Circuit held that the district court should not have considered the weight of the transport liquid. Under the market-oriented approach adopted by Congress, culpability should be based on the amount of usable drug mixture that a defendant brings to the market. Here, the liquid transport medium was to be separated out before distribution. This decision did not conflict with 5th Circuit decisions holding that the weight of toxic liquid by-products from the manufacture of methamphetamine should be considered at sentencing. Both methamphetamine and PCP were singled out for different treatment under the guidelines, and the market-oriented approach was not intended to apply. Moreover, the liquids involved in the methamphetamine cases were either precursor chemicals or by-products of the manufacturing process. U.S. v. Palacios-Molina, 7 F.3d 49 (5th Cir. 1993).
5th Circuit refuses to reduce cocaine weight to account for purity. (251) Defendant argued that because the cocaine involved in his offense was not 100 percent pure, the weight should be reduced to take account of the purity. The 5th Circuit rejected this argument, holding that under the plain language of section 2D1.1, the entire weight of a mixture containing cocaine, not the weight of the cocaine alone, should be considered at sentencing. U.S. v. Cartwright, 6 F.3d 294 (5th Cir. 1993).
5th Circuit includes lye water with rings of phenylacetone on its surface. (251) Police found in defendant’s methamphetamine laboratory various drugs and chemicals, including 13 plastic jugs containing 104 pounds of lye water with gold oilfish rings of phenylacetone on the water’s surface. The 5th Circuit affirmed the consideration of the weight of the lye water in the offense level calculations, despite defendant’s claim that the water was not usable or marketable and was easily separable from the phenylacetone. Chapman v. U.S., 111 S.Ct. 1919 (1991) did not overrule Circuit precedent providing for the inclusion of liquid waste when determining the relevant amount of drugs for sentencing. U.S. v. Eastland, 989 F.2d 760 (5th Cir. 1993).
5th Circuit affirms sentence based on entire weight of substance containing only a trace of methamphetamine. (251) Relying on U.S. v. Sherrod, 964 F.2d 1501 (5th Cir.), the 5th Circuit affirmed that the district court properly based defendant’s sentence on the entire weight of a substance containing only a trace amount of methamphetamine. U.S. v. Anderson, 987 F.2d 251 (5th Cir. 1993).
5th Circuit approves consideration of entire weight of mixture containing only a trace of controlled substance. (251) Drug agents seized jars of liquids containing phenylacetone (P2P) and methamphetamine from defendant’s laboratory. The 5th Circuit affirmed that it was proper to consider the entire weight of the mixtures, even though many of the jars contained only a trace of the controlled substance. Under Circuit precedent, a defendant’s sentence is based on the entire weight of a mixture containing a detectable amount of methamphetamine or P2P rather than only the weight of the controlled substance. The fact that the traces of methamphetamine may have been too small to measure was not relevant, since the guidelines speak of “detectable,” rather than “measurable” amounts of methamphetamine. A detectable amounts includes any quantity, however small, which can be discerned by accepted methods of analysis. U.S. v. Ruff, 984 F.2d 635 (5th Cir. 1993).
5th Circuit uses weight of liquid waste containing methamphetamine to calculate offense level. (251) At defendants’ methamphetamine laboratory, police seized a quantity of a toxic liquid substance containing methamphetamine. At trial, a chemist testified that the liquid was probably a waste product left over from the manufacturing process. The government stipulated that over 95 percent of the volume or weight of the liquid was solvents. Relying on U.S. v. Baker, 883 F.2d 13 (5th Cir.), the 5th Circuit upheld the use of total weight of the liquid waste containing methamphetamine to determine the base offense level. The Supreme Court’s decision in Chapman v. U.S., 111 S. Ct. 1919 (1991) did not involve methamphetamine nor a liquid, and did not address the propriety of using the weight of liquid waste containing methamphetamine as a basis for computing a defendant’s base offense level. U.S. v. Walker, 960 F.2d 409 (5th Cir. 1992).
5th Circuit affirms that weight of blotter paper containing LSD determines weight of drug. (251) Following the Supreme Court’s decision in Chapman v. U.S., 500 U.S. 453, 111 S.Ct. 1919 (1991), the 5th Circuit found no error in the district court’s inclusion of the weight of the blotter paper containing LSD in the total weight of the LSD involved. U.S. v. McCusker, 936 F.2d 781 (5th Cir. 1991).
5th Circuit upholds sentence based on total weight of liquid containing a detectable amount of methamphetamine. (251) Defendant argued that in calculating his offense level under the drug quantity table, the district court erred in including the amount of acetone mixed with the methamphetamine. The 5th Circuit rejected the argument, relying on its decision in U.S. v. Baker, 883 F.2d 13, 15 (5th Cir. 1989) which held that it was proper to use the total weight of a liquid containing any detectable amount of methamphetamine. U.S. v. Mueller, 902 F.2d 336 (5th Cir. 1990).
5th Circuit rules that drug guideline’s method of calculating offense level did not violate statutory directive. (251) Defendant argued that because the guidelines calculation of offense level allows for consideration of the total weight of a mixture in which a controlled substance is found, it promotes unwarranted sentencing disparities in violation of Congressional directive. The 5th Circuit rejected the challenge, holding that the guidelines method of calculating offense levels based upon quantity rather than purity was fully consistent with past Congressional actions which classify drugs without reference to purity. Furthermore, to minimize the risk of unwarranted sentence disparity, § 2D1.1 application note 9 allows for upward departure in the event of unusually high purity. Finally, purity can always be considered when making the determination where in the appropriate range the sentence should actually be set. U.S. v. Baker, 883 F.2d 13 (5th Cir. 1989).
5th Circuit holds failure to allow defendant to challenge factual basis for increase in offense level required reversal. (251) The district court increased the defendant’s offense level based upon the unusual purity of the drug. However, it failed to allow the defendant to challenge the evidentiary basis for the departure. The 5th Circuit vacated the sentence. Rule 32 requires that a defendant have the opportunity to challenge matters relating to sentencing in order to ensure accuracy. Without an opportunity for the parties to address the issue, there was no evidence on which the trial court could determine whether 93% pure cocaine was of “unusually high purity.” The defendant simply had no notice that this was an issue in the case. U.S. v. Otero, 868 F.2d 1412 (5th Cir. 1989).
5th Circuit finds low level purity of drug is not grounds for offense level reduction. (251) Defendant appealed her sentence, claiming that the sentencing court erroneously refused to reduce her offense level to reflect the low purity of the methamphetamine. The 5th Circuit affirmed the sentence, stating that the guidelines fail to provide for such a reduction. Section 2D1.1, which provides for an offense level increase for drugs of unusually high purity does not create a corresponding reduction in a “weak” drug case. U.S. v. Davis, 868 F.2d 1390 (5th Cir. 1989).
5th Circuit rules that weight of controlled substance used in fixing offense includes the weight of LSD “blotter” paper. (251) Defendant contended that the district court erred in taking into account the weight of the “blotter” paper on which the LSD was contained. In the case of LSD, the distribution medium is generally heavier than the drug itself. The 5th Circuit affirmed his sentence, stating that his argument was foreclosed by § 2D1.1. The drug quantity table for that section provides that the quantity of all controlled substances shall include the entire amount of the mixture of compound if “any mixture of a compound contains any detectable amount of a controlled substance.” U.S. v. Taylor, 868 F.2d 125 (5th Cir. 1989).
5th Circuit holds drug guideline’s method of calculating offense level did not violate statutory directive. (251) Drug defendant argued that because the guidelines’ calculation of offense level allows for consideration of the total weight of a mixture in which a controlled substance is found, it promotes unwarranted sentencing disparities in violation of Congressional directive. The 5th Circuit rejected the challenge, holding that the guidelines method of calculating offense levels based upon quantity rather than purity was fully consistent with past Congressional actions which classify drugs without reference to purity. Furthermore, to minimize the risk of unwarranted sentence disparity, § 2D1.1 Application Note 9 allows for upward departure in the event of unusually high purity. Finally purity can always be considered when making a determination where in the appropriate range the sentence should actually be set. U.S. v. Baker, 883 F.2d 13 (5th Cir. 1989).
6th Circuit applies cross-reference for defendant who sold large quantities of iodine to meth cooks. (251) Defendant was convicted under 21 U.S.C. § 841(C)(2) of selling over 3,000 gallons of iodine knowing that it would be used to manufacture methamphetamine. Section 2D1.11 (c) provides for a cross-reference if the offense involved unlawfully manufacturing or attempting to manufacture a controlled substance. The Sixth Circuit upheld the application of the cross-reference, agreeing that the evidence supported the court’s finding that defendant’s conduct “involved” the manufacture of methamphetamine. Defendant purchased large amounts of iodine from wholesalers, well beyond any amount that reasonably could be sold for legitimate purposes. He in turn sold the same volume of iodine to known meth cooks. He accepted only cash for the iodine purchases, although accepted credit cards or checks for other purchases. The pattern of sales to meth cooks cemented this conclusion. U.S. v. Swafford, 639 F.3d 265 (6th Cir. 2011).
6th Circuit holds that methamphetamine enhancement was not double counting. (251) Defendant was convicted of endangering human life while manufacturing methamphetamine and conspiracy to manufacture methamphetamine. For the endangering life conviction, the court found that the base offense level was 37 under § 2D1.10(a)(1), which calls for an offense level of three plus the offense level from the Drug Quantity Table. Three levels were added under § 2D1.10 (b)(1)(A) because the offense involved methamphetamine. Defendant argued that the court engaged in double counting because § 2D1.10(a)(1) considered the involvement of meth in the offense as an enhancing factor via the Drug Quantity Table, and § 2D1.10(b)(1)(A) required an additional enhancement due to the involvement of methamphetamine in the offense. Agreeing with the Eighth Circuit’s decision in U.S. v. Fortney, 357 F.3d 818 (6th Cir. 2007), the Sixth Circuit found no double counting occurred. There was no double counting in the determination of the base offense level for the endangerment count because only the base offense level from the Drug Quantity Table was incorporated by reference into the base offense level. As for the three-level increase, Congress directed the Commission to adopt a separate increase for endangering that is caused by the manufacture of methamphetamine, and the Commission implemented this mandate in Amendment 608. It is not double counting when the guidelines impose cumulative enhancements that reflect “conceptually separate notions relating to sentencing.” U.S. v. Eversole, 487 F.3d 1024 (6th Cir. 2007).
6th Circuit upholds 50 percent ratio for converting pseudoephedrine to methamphetamine. (251) Defendant’s sentence was calculated using the 50 percent ratio in § 2D1.1 for converting the quantity of the precursor chemical pseudoephedrine attributable to defendant into a corresponding quantity of methamphetamine. See Amendment 611 (2003). The Sentencing Commission promulgated the conversion ratio in response to a 2000 statute that required it to establish a table of such ratios “based on scientific, law enforcement, and other data the Sentencing Commission considers appropriate.” The Sixth Circuit held defendant did not demonstrate that the Sentencing Commission failed to follow the Congressional command in formulating the 50 percent ratio. The panel agreed that the plain language of the statute required the Commission to base the conversion ratios, at a minimum, on both scientific and law enforcement data. However, the record did not support defendant’s claim that the Commission failed to rely on both kinds of data in formulating the conversion ratio. The panel refused to conclude that the Commission’s recognition in the public record that the chosen ratio mirrored the one found in a DEA report necessarily meant the ratio was based solely on law enforcement data. The conversion ratio was not arbitrary and capricious nor otherwise unconstitutional. The 50 percent yield rate was a reasonable middle ground between two extremes, and was borne out by earlier cases in which the court endorsed the 50 percent rate as a valid approximation. U.S. v. Martin, 438 F.3d 621 (6th Cir. 2006).
6th Circuit holds Apprendi did not require type of methamphetamine be submitted to jury. (251) The district court found that with the precursor chemicals they possessed, defendants could have produced 616 grams of methamphetamine. The court also included in its drug quantity calculation 58.2 grams of pure meth in liquid form that were seized from defendants during a traffic stop. Defendants’ sentence were calculated under the 1993 guidelines, which distinguished between D-methamphetamine and L-methamphetamine. Defendants did not dispute that the 58.2 grams of liquid meth seized was D-meth, but contended that there was no evidence that D-meth would have been created from the hydriodic acid they possessed. Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), they also contended that their 5th and 6th Amendment rights were violated because the jury did not determine whether they intended to create D- or L-methamphetamine. The Sixth Circuit found no error. First, defendants’ sentences did not trigger Apprendi because the type of methamphetamine attributed to them did not increase their sentences beyond the statutory maximum. Second, there is no market for L-methamphetamine because it has only 1/10 of the potency of D-methamphetamine, and its main ingredient is difficult to obtain. See U.S. v. Owusu, 199 F.3d 329 (6th Cir. 2000). U.S. v. Laster, 258 F.3d 525 (6th Cir. 2001).
6th Circuit says Amendment 488 can be used to measure departures in liquid LSD cases. (251) Defendant possessed 6.2 grams of “liquid LSD,” which consisted of 5.1 mg of the drug dissolved in an unidentified liquid. In 1994, defendant moved to reduce his sentence based on Amendment 488 to § 2D1.1(c), which standardized the weight of each dose of LSD as 0.4 mg, regardless of actual weight of the carrier medium. The district court found Amendment 488 inapplicable, since defendant’s LSD was not attached to a carrier medium, but on appeal, the Sixth Circuit found Amendment 488 applicable. Application note 18 says that using the weight of liquid LSD alone may not adequately reflect the seriousness of the offense, and a departure may be warranted. Thus, after determining a sentence using the weight of the LSD alone, a court can use the 0.4 mg standard to determine the level of departure. But in any event, the Amendment does not apply for mandatory minimum purposes, and the weight of the liquid LSD, 6.2 grams, triggers a five-year mandatory minimum. U.S. v. Ingram, 67 F.3d 126(6th Cir. 1995).
6th Circuit says LSD guideline does not apply for mandatory minimum purposes. (251) Defendant attempted to possess 3200 doses of LSD with intent to distribute. The weight of the LSD, in combination with its blotter paper carrier medium, was 20.87 grams. The district court imposed a mandatory minimum 10 year sentence under 21 U.S.C. § 841(b)(1)(A)(v). After defendant was sentenced, the Sentencing Commission amended guideline § 2D1.1 to provide that each dose of LSD should be treated as weighing .4 milligrams. Under the new formula, defendant was only involved with 1.28 grams. The Sixth Circuit held that this amendment did not apply for mandatory minimum purposes. The Sentencing Commission stated in its amendment that its approach does not override the definition of mixture or substance for purposes of applying any mandatory minimum sentence. Given this, Congress could not have intended for the amendment to override Chapman v. U.S., 500 U.S. 452 (1991). U.S. v. Andress, 47 F.3d 839 (6th Cir. 1995).
6th Circuit uses full weight of dilaudid tablets rather than weight of active narcotic ingredient. (251) Defendant conspired to obtain 4500 dilaudid tablets. He argued that the court should have calculated his offense level using the weight of the active narcotic ingredient (hydromorphone) in the 4500 tablets, rather than the full weight of the 4500 tablets. The 6th Circuit approved using the weight of the dilaudid tablets rather than the weight of the hydromorphone. This is in accord with unpublished 6th Circuit opinions and cases in six other circuits. The 1993 amendment to the asterisk note to § 2D1.1(c) does not compel a different result. The amendment applies to the unique case of LSD. U.S. v. Landers, 39 F.3d 643 (6th Cir. 1994).
6th Circuit, en banc, affirms that defendant can be sentenced for drug quantity under negotiation. (251) An undercover agent agreed to transfer to defendant 500 grams of cocaine, but the agent only transferred 85 grams of cocaine in a small plastic bag placed inside a mixture of 985 grams of powdered plaster of Paris. On rehearing en banc, the 6th Circuit did not review whether the weight of the plaster of Paris could be properly considered at sentencing, since the government conceded it could not be considered. But the court held that defendant could be sentenced on the basis of the entire 500 grams of cocaine he negotiated to purchase. Application note 1 to section 2D1.4 clearly authorizes the consideration of the weight of drugs under negotiation in an uncompleted distribution, and section 1B1.3 permits an unconvicted attempt or conspiracy to be considered as relevant conduct to a possession offense. The fact that attempts and conspiracies are inchoate crimes is immaterial so long as the conduct was part of the same course of conduct, common scheme or plan. Judge Nelson, joined by Judges Guy, Suhrheinrich and Batchelder, concurred. Chief Judge Merrit, joined by Judges Martin and Jones, dissented. U.S. v. Davern, 970 F.2d 1490 (6th Cir. 1992) (en banc).
6th Circuit refuses to base sentence on total weight of methamphetamine and poisonous by-products. (251) Defendants were arrested while in the process of “cooking” a batch of methamphetamine. Defendants contended that it was error to calculate their sentence based upon the total weight of the mixture, 4180 grams, rather than the approximately 100 grams of methamphetamine that would have been produced if the chemicals had been allowed to react completely. The 6th Circuit agreed that to the extent the mixture consisted of a small amount of methamphetamine and poisonous chemicals and by-products not intended for ingestion, it would be improper to use the total weight to calculate defendants’ sentences. As the Supreme Court made clear in Chapman v. U.S., 111 S.Ct 1919 (1991), Congress intended any dilutant, cutting agent, or carrier medium to be included for sentencing purposes, since this increases the amount of drug available to consumers. But this was not the case here. U.S. v. Jennings, 945 F.2d 129 (6th Cir. 1991), opinion clarified, 966 F.2d 184 (6th Cir. 1992).
6th Circuit affirms use of weight of carrier medium in determining weight of LSD. (251) Defendant argued that the weight of the carrier medium should not be used in calculating the weight of LSD for determining the offense level, as the carrier medium is not a “substance” within the meaning of 21 U.S.C. § 841(b)(1)(A) (v). The 6th Circuit disagreed, holding that the plain language of the 1986 amendments to the penalty provision clearly demonstrates Congress’ intent to include the carrier medium when determining the net weight of LSD. While persons may be punished more harshly depending on the carrier medium they choose, it is clear that Congress intended to punish all who carry ten grams or more of LSD regardless of whether it is pure LSD or a detectable amount combined with a carrier medium. U.S. v. Elrod, 898 F.2d 60 (6th Cir. 1990).
6th Circuit upholds cocaine offense level based on total amount, without regard to purity. (251) Defendant argued that 108.8 grams of 87% pure cocaine was less than 100 grams of cocaine for sentencing purposes. The 6th Circuit rejected the argument, noting that under U.S.S.G. 2D1.1, if a mixture or compound contains a detectable amount of a controlled substance, the entire amount of the mixture or compound shall be considered in measuring the quantity. U.S. v. Williams, 894 F.2d 208 (6th Cir. 1990).
7th Circuit reverses for using gross weight of pseudoephedrine pills, instead of weight of pure drugs. (251) Defendant was convicted of possessing pseudoephedrine, knowing it would be used to manufacture methamphetamine. The Seventh Circuit held that it was plain error for the district court to use the gross weight of the pseudoephedrine tablets in calculating defendant’s sentence, instead of the weight of the pure drugs contained therein. The Guidelines require district courts to calculate the base offense level using the weight of the recovered pseudoephedrine contained in the tablets, not the weight of the entire tablet. See Note C to § 2D1.11. The error affected defendant’s substantial rights because, had the court calculated the base offense level using the weight of the pure drugs, his guideline range would have been 97-121 months, rather than the 151-188 month range calculated by the district court. U.S. v. Jumah, 599 F.3d 799 (7th Cir. 2010).
7th Circuit upholds increase for substantial risk of harm during attempt to make methamphetamine. (251) Guideline § 2D1.1(b) (6)(B) provides for a three-level increase if an offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life. The Seventh Circuit held that the circumstances of defendant’s offense supported the increase. Police recovered from defendant’s trailer one gallon of muriatic acid, a toxic substance that can cause severe burns, one gallon of Coleman fuel (or ether) that is flammable and can be explosive, and glass jars containing meth. When the officers entered the trailer, ether was being burned, creating a white fog that engulfed the trailer, creating a strong odor and forcing the officers to leave. One officer testified that in his experience, continual contact with such a fog and odor would cause him to become queasy and ill. The extent of the manufacturing operation was significant, exhibiting a level of sophistication not normally seen. The location of the trailer was within a mobile home trailer park. While details were sketchy as to the specifics of the park, defendant did not dispute that the area was residential, rather than rural. U.S. v. Chamness, 435 F.3d 724 (7th Cir. 2006).
7th Circuit remands where court used facts not admitted by defendant or found by jury to determine drug quantity. (251) Defendant argued that the court erred by enhancing his sentence based on a factual finding made solely by the sentencing judge with respect to the purity and quantity of methamphetamine involved in his offenses. The jury found defendant guilty of offenses involving 600 grams or more of plain old “methamphetamine” – not “methamphetamine (actual) or “Ice.” The district court found by a preponderance of the evidence that the actual weight of the charged mixtures was 878.8 grams (based on uncontested results of government lab analysis) and that 91 percent of those mixtures, or 799.7 grams, constituted “methamphetamine (actual).” The Seventh Circuit agreed that the court’s use of supplemental facts not admitted by defendant or proven to the jury beyond a reasonable doubt violated the Sixth Amendment, as interpreted by U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Macedo, 406 F.3d 778 (7th Cir. 2005).
7th Circuit holds that indictment’s incorrect designation of drug schedule did not cause Apprendi violation. (251) In the indictment, the government mislabeled methamphetamine as a schedule III drug, rather than correctly labeling it a schedule II drug. The Seventh Circuit held that the incorrect labeling did not implicate Apprendi v. New Jersey, 530 U.S. 466 (2000). The indictment listed the specific drug and quantity charged and the jury found him guilty of conspiring to import, possess and attempt to possess a specific drug type and amount. The special verdict form properly tracked the relevant language of § 841(b)(1). The use of this form satisfied Apprendi in that the drug type and amount sufficient to trigger the higher statutory maximums were found by the jury beyond a reasonable doubt. U.S. v. Macedo, 406 F.3d 778 (7th Cir. 2005).
7th Circuit holds that only actual methamphetamine present in solution could be counted for mandatory minimum purposes. (251) Defendant argued that the district court erred in subjecting him to a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(viii) by including in the drug quantity for sentencing purposes 825 grams of a solution generated during a thwarted attempt to produce methamphetamine. The 7th Circuit agreed. Only usable or consumable mixtures or substances can be included in drug quantity under § 841(b). In Chapman v. U.S., 500 U.S. 453 (1991), the Supreme Court found that Congress had adopted a market-oriented” approach to punishing drug trafficking, and that carrier mediums and cutting agents that aid in the distribution of drugs should be included in the drug weight. The Seventh Circuit and six other circuits have interpreted Chapman’s “market-oriented” approach to require only usable or consumable mixtures or substances be included in the drug quantity for sentencing purposes; Chapman does not mandate the inclusion of unusable, uningestible or unmarketable substances. See U.S. v. Johnson, 999 F.2d 1192 (7th Cir. 1993). The panel rejected the argument that the market-oriented approach does not apply to methamphetamine, even though Congress allows sentencing based on the pure amount of meth as an alternative to weighing a mixture containing the meth. U.S. v. Stewart, 361 F.3d 373 (7th Cir. 2004).
7th Circuit finds insufficient evidence to support use of 100% conversion ratio. (251) Police found in defendant’s bedroom a large quantity of pills containing psuedoephedrine, a precursor to methamphetamine. The PSR estimated the production capacity of defendant’s meth lab using a 100% yield, i.e. converting the psuedoephedrine into meth at a one-to-one ratio. A defense expert testified that the 100% conversion rate was theoretical and that professional chemists can only obtain a 90% yield using professional equipment. Based on a scientific study in Iowa, the expert indicated that an average yield for a clandestine lab was from 40% to 50%, and that at most, a clandestine lab can obtain an 80% yield. A government chemist testified that DEA chemists do a theoretical conversion rate of 100% because it is difficult to obtain an accurate measure of the production capacity of a clandestine lab. She admitted, as a practical matter, that it is impossible to obtain a 100% yield, indicated that an average yield for a clandestine lab was from 40% to 60%, and that she had noted yields as high as 85%. She did not dispute the findings of the Iowa study. The Seventh Circuit found the record void of any evidence supporting the district court’s use of the 100% conversion ratio. The record contained no evidence of the sorts of yields defendant could, with his equipment and recipe, obtain in his meth lab. On remand, the district court must undertake a more precise inquiry into the quantity of meth attributable to defendant. U.S. v. Eschman, 227 F.3d 886 (7th Cir. 2000).
7th Circuit finds error in one calculation was overcome by other calculations. (251) Defendant was convicted of a methamphetamine conspiracy. The court found that more than three kilograms of actual meth were attributable to defendant. Defendant objected to the court’s finding that he received about 26 ounces of 94% pure meth from his son, arguing that his son’s testimony established that he always cut his supply before distributing it to others. The Seventh Circuit upheld the court’s use of the three-kilogram figure, because any error in computing the quantity of methamphetamine from defendant’s son was compensated for by the conservative nature of the other calculations. For example, the court applied a very conservative estimate of 25% purity to a 12-pound shipment that defendant drove from California to Missouri, finding that the total amount of meth attributable to defendant from this batch was 1417.5 grams. At trial, the lowest purity of any of the meth found in defendant’s possession was 38%. Applying this higher figure to the 12-pound shipment would more than cover the deficiency alleged by defendant. U.S. v. Marshall, 157 F.3d 477 (7th Cir. 1998).
7th Circuit says evidence of lab, precursor chemicals, and individuals not necessary to find D-meth. (251) Defendants pled guilty to conspiracy to distribute methamphetamine. Both challenged the type of methamphetamine used by the judge to calculate their sentence. They contended that because there was no evidence as to where the meth was produced, what labs produced the meth, what chemicals were used, nor which individuals produced the meth, it could not all be classified as D-meth. The Seventh Circuit found no error. Evidence of the lab, the chemicals, and the individuals producing the meth is not necessary in order for the court to find the substance was D-meth. The fact that the meth samples tested varied in purity, and thus might have come from different batches of meth, was not a problem. Despite the variance in purity, all of the samples tested positive for D-methamphetamine. Even if the meth came from different sources, there was sufficient evidence that this was a conspiracy dealing in D-meth. U.S. v. McEntire, 153 F.3d 424 (7th Cir. 1998).
7th Circuit approves upward departure based on high-purity of heroin. (251) Defendant was arrested after receiving a controlled delivery of a package containing 262 grams of 70% pure white heroin. A DEA agent testified that this heroin would have generated 2.5 kilograms of low-purity heroin for distribution to users. The district court departed upward by six levels to account for the high purity of the heroin. This departure resulted in the base offense level defendant would have received for 2.5 kilograms of low-purity, street level heroin. The Seventh Circuit affirmed. The upward departure was not inconsistent with Congress’s intent that drug penalties be related to the weight of the drugs found. The upward departure allowed the sentencing court to translate the high-purity heroin into its equivalent weight on the street. Section 2D1.1 ensures that traffickers above the retail level are not punished less severely merely because they received the drug in concentrated form, before it is diluted to its street-level weight. U.S. v. Doe, 149 F.3d 634 (7th Cir. 1998).
7th Circuit applies mandatory minimum where amount of meth in mixture exceeded 10 grams. (251) Section 841(b)(1)(B)(viii) provides for a five year mandatory minimum sentence for offenses involving 10 grams or more of methamphetamine, or 100 grams or more of a mixture or substance containing methamphetamine. Defendant possessed 40 grams of a methamphetamine mixture that was 79% drug and 21% cut. He therefore possessed more than 10 grams of methamphetamine, but less than 100 grams of a methamphetamine mixture. Defendant contended that he did not possess more than 10 grams of methamphetamine because that drug was mixed with inert substances, but not enough to yield more than 100 grams of mixture. The Seventh Circuit held that the minimum sentence applies if the amount of active drug used to create the mixture exceeds 10 grams. Methamphetamine need not be “pure” to count as methamphetamine. Under defendant’s scenario, a distributor with 99 grams of 99% pure methamphetamine would not face a minimum sentence while a distributor holding 10 grams of 100% methamphetamine would go to jail for at least 5 years. U.S. v. Blake, 116 F.3d 1202 (7th Cir. 1997).
7th Circuit does not decide whether “safety valve” can be applied if original sentencing was before 9/23/94. (251) Defendant moved to reduce his sentence under 18 U.S.C. § 3583(c)(2) based on the retroactive LSD guideline amendment. The district court ruled that under U.S. v. Neal, 46 F.3d 1405 (7th Cir. 1995), the amendment did not alter the fact that defendant was still subject to a mandatory minimum sentence of 10 years. The district court found that the “safety valve” in 18 U.S.C. § 3553(f) provided no relief from the mandatory minimum because the “safety valve” applies only to sentences imposed after September 23, 1994 and his original sentence was imposed July 5, 1989. On appeal, the Seventh Circuit reaffirmed Neal, but found it unnecessary to address whether the safety valve could be applied on resentencing. At defendant’s original sentencing, the district court found he was an organizer or a leader, which disqualified him from safety valve protection. This finding was affirmed on defendant’s first appeal. U.S. v. Marshall, 83 F.3d 866 (7th Cir. 1996).
7th Circuit uses weight of entire Dilaudid tablet rather than weight of hydromorphone. (251) Defendants were convicted of conspiring over a four year period to possess and distribute over 60,000 Dilaudid tablets. They argued that the court should have used the weight of the hydromorphone in each tablet rather than the weight of the entire tablet to determine their offense level, since the Drug Equivalency Table uses the term “hydromorphone” rather than Dilaudid. The Seventh Circuit found itself bound by its decision in U.S. v. Lacour, 32 F.3d 1157 (7th Cir. 1994), which held that a sentence should be based on the gross weight of the Dilaudid tablets. U.S. v. Neville, 82 F.3d 750 (7th Cir. 1996).
7th Circuit holds that sentencing scheme of using gross weight of Dilaudid tablets has rational basis. (251) Defendant was convicted of conspiring to possess and distribute Dilaudid tablets, a prescription drug containing hydromorphone. He argued that the sentencing scheme of using the gross weight of the Dilaudid tablets lacks a rational basis and leads to arbitrary punishment because Dilaudid tablets are manufactured with different doses of hydromorphone. The Seventh Circuit upheld the sentencing scheme, noting that the Supreme Court rejected a similar challenge in Chapman v. U.S. 500 U.S. 453 (1991). In a case involving LSD, the Court found that Congress can include the weight of a carrier medium in the drug quantity because the medium is used to facilitate the distribution of the drug. Moreover, by setting penalties according to the gross weight of the drugs, Congress reasonably sought to avoid arguments about the accurate weight of pure drugs. Dilaudid presents an even more compelling case for inclusion than LSD because its active ingredient is diffused throughout the tablets and cannot be easily separated from the carrier medium. U.S. v. Sasson, 62 F.3d 874 (7th Cir. 1995).
7th Circuit approves inference that substance that did not harden when cooked was cocaine. (251) Defendant sold cocaine and cocaine base. He argued that the district court erred in attributing to him two kilograms he sold to a cooperating witness. The witness testified that after receiving the substance he attempted to “cook” one ounce, but that it would not harden as it cooled. The witness then returned the two kilograms to defendant for a refund. Relying on government evidence that cocaine hardens when cooked, defendant argued that the government did not prove that the substance he sold was cocaine. The Seventh Circuit disagreed, since there was ample evidence that defendant sold cocaine, and the witness never testified that he believed the substance was a look-alike substance not containing drugs. The government could not be expected to anticipate all possible arguments and could not be faulted for not presenting other explanations for the substance’s failure to harden. U.S. v. Saulter, 60 F.3d 270 (7th Cir. 1995).
7th Circuit uses actual weight of LSD and its carrier medium for mandatory minimum purposes. (251) Defendant was accountable for 3000 doses of LSD, which under the sentencing guidelines’ new formula of 0.4 milligrams per dose, resulted in a weight of 1.2 grams and a sentencing range of 46 to 57 months. However, the district court determined that total weight of the LSD distributed by defendant, including the blotter paper, was 12.589 grams, resulting in a mandatory minimum 120-month sentence. The 7th Circuit, following its recent en banc decision in U.S. v. Neal, 46 F.3d 1405 (7th Cir. 1995) (en banc),, affirmed. A court is required to use the actual weight of the LSD and its carrier medium to determine the applicability of a statutory mandatory minimum. U.S. v. Cichon, 48 F.3d 269 (7th Cir. 1995).
7th Circuit, en banc, holds guideline LSD amendment inapplicable to statutory minimum. (251) In Chapman v. U.S., 500 U.S. 453 (1991), the Supreme Court held that, for purposes of calculating statutory minimum sentences under 21 U.S.C. § 841(b)(1), the weight of the blotter paper containing LSD is included. On November 1, 1993, the Sentencing Commission amended guideline § 2D1.1 to set a uniform weight per dose of LSD, regardless of the weight of the carrier medium. The Seventh Circuit, en banc, held that this amendment affects only the calculation of defendant’s guideline base offense level, not the statutory minimum sentence. The Supreme Court has authoritatively construed “mixture or substance” in § 841(b)(1) to include the carrier medium. The Sentencing Commission cannot, and did not intend to, override Chapman. This dual sentencing scheme does not violate due process. There was no ambiguity that would require application of the rule of lenity. Judge Ripple, joined by Judges Cummings and Rovner, dissented. U.S. v. Neal, 46 F.3d 1405 (7th Cir. 1995) (en banc), aff’d, Neal v. U.S., 516 U.S. 284, 116 S.Ct. 763 (1996).
7th Circuit approves using total weight of dilaudid tablets. (251) Defendant conspired to possess more than 60,000 dilaudid tablets. The 7th Circuit held that defendant’s sentence was properly calculated based on the total weight of the dilaudid tablets. The absence of the “mixture or substance” language in 21 U.S.C § 841(b) (1)(C) does not preclude a court from using the weight of the mixture in calculating a sentence. The absence is explained by the fact that distribution of any amount of a controlled substance classified as a Schedule II controlled substance is punishable by a maximum of 20 years. U.S. v. Lacour, 32 F.3d 1157 (7th Cir. 1994).
7th Circuit finds defendant accountable for quantity he would have possessed but for arrest. (251) Police intercepted a kilogram of cocaine being delivered to defendant, replaced all but 22.5 grams of the cocaine with dirt, and arranged for the cocaine/dirt mixture to be delivered to defendant. The 7th Circuit found that defendant was properly accountable for the full kilogram he attempted to possess, but did not, due to government intervention. Defendant’s sentencing range reflected the seriousness of his crime. The government’s actions in substituting dirt for the cocaine did not provide defendant with a sentencing windfall. Ambriz v. U.S., 14 F.3d 331 (7th Cir. 1994).
7th Circuit excludes waste water from weight of cocaine base. (251) The 7th Circuit held that the district court improperly considered the weight of water left over from the cocaine base manufacturing process, in calculating defendant’s base offense level. The decision in Chapman v. U.S., 111 S.Ct. 1919 (1991) does not require the waste water to be included. The waste water did not serve as a dilutant, cutting agent or carrier medium for the cocaine base, and did not facilitate its distribution. The liquid was merely a by-product with no use or market value. Under a market-oriented approach, when the mixture is not ingestible and therefore not marketable, there is no reason to base a sentence based on the entire weight of a useless mixture. Judge Ripple concurred to emphasize that the opinion did not address whether the waste water could have been included had defendant been charged with manufacturing, rather than distributing, crack cocaine. U.S. v. Johnson, 999 F.2d 1192 (7th Cir. 1993).
7th Circuit upholds purity departure in case involving large quantity of cocaine. (251) Application note 9 to 2D1.1 states that unusually high purities may justify upward departures, especially in the case of small quantities of heroin. Defendant argued that a departure based on purity was inappropriate in his case, which involved a large quantity of cocaine. Upholding the departure, the 7th Circuit noted that the examples in the note are merely examples of cases in which purity is likely to be especially probative. Purity may nevertheless justify departure in other cases. The court also rejected the argument that purity should not be considered because it was simply the product of the amount of buy money the government agent decided to supply. U.S. v. Connor, 992 F.2d 1459 (7th Cir. 1993).
7th Circuit affirms sentencing defendant on the basis of total weight of Dilaudid tablets. (251) The 7th Circuit affirmed the district court’s decision to sentence defendant on the total weight of the Dilaudid tablets he sold to an undercover agent, rather than the net weight of the drug in the tablets. Circuit court and Supreme Court precedent hold that it is rational to measure the quantity of drugs according to their “street weight” in the diluted form in which they are sold, rather than according to the net weight of the active ingredient. The D.C. Circuit has recently applied this reasoning to the drug Dilaudid. U.S. v. Blythe, 944 F.2d 356 (7th Cir. 1991).
7th Circuit, en banc, includes weight of carrier medium in calculating LSD sentence. (251) 21 U.S.C. § 841(b)(1) sets a mandatory minimum term of imprisonment of five years for selling more than one gram of a “mixture or substance containing a detectable amount” of LSD. One defendant was convicted of selling 10 sheets of paper containing LSD. Because the total weight of the paper and the LSD was 5.7 grams, defendant received the five year mandatory minimum sentence. The en banc 7th Circuit held that the weight referred to in § 841 was the gross weight of the drug plus the carrier medium, not just the net weight of the drug. Although conceding that this could cause “odd things” to happen, the court found the language of the statute unambiguous. The 7th Circuit also held that the drug quantity table set forth in the guidelines referred to the gross weight of the LSD and the carrier medium. The court rejected the argument that the sentences violated the 8th Amendment or due process. Judge Cummings dissented, joined by Chief Judge Bauer, and Judges Wood, Cudahy and Posner, finding that the inclusion of the weight of the medium violated the statute and due process. Judge Posner also wrote a separate dissent, joined by the other dissenters, finding that the majority’s interpretation made the punishment scheme for LSD irrational and violative of due process. U.S. v. Marshall, 908 F.2d 1312 (7th Cir. 1990) (en banc), aff’d. Chapman v. U.S., 500 U.S. 453, 111 S.Ct. 1919 (1991).
7th Circuit rules weight of drug medium is to be considered in selling base offense level. (251) The Seventh Circuit held that the paper carrier upon which LSD is sold constitutes a substance or mixture containing a detectable amount of [LSD], and therefore its weight is to be considered in setting the base offense level under § 2D1.1. U.S. v. Rose, 881 F.2d 386 (7th Cir. 1989).
8th Circuit says alleged failure to address defendant’s objection to drugs in PSR was harmless. (251) Defendant argued that the district court committed procedural error by failing to rule on his objections to the PSR’s calculation of the total amount of methamphetamine in his offense. Without addressing the merits, the Eighth Circuit found that any error was harmless because it did not affect the sentence. Defendant objected to paragraph 17 of the PSR, specifically the conversion of $1,344 seized during his January 19 arrest into 11.03 grams of methamphetamine. He did not object, however, to the amounts of meth attributed to him in paragraphs 7, 9, and 13, which made him accountable for at least 20.5 grams of meth. The base offense level for the amount of meth defendant did not object to (20.5 grams) was the same as for the amount of meth actually used in the PSR (31.53 grams). U.S. v. Freeman, 718 F.3d 1002 (8th Cir. 2013).
8th Circuit finds explosion in meth lab created substantial risk of harm. (251) Defendant was convicted of conspiracy to manufacture meth. The Eighth Circuit upheld an increase under § 2D1.1(b)(13)(C)(ii) for creating a substantial risk of harm to human life. The district court relied on evidence that an explosion occurred in defendant’s lab at the time of his arrest when the lab was disposed of down the drain of the sink. Several government witnesses testified about the risk of explosion involved with the “shake and bake” method of manufacturing methamphetamine, a risk well demonstrated by the explosion of defendant’s lab and the harm and resulting fire. Further, defendant conducted his meth lab operation in a residential area, where the risk of harm to human life was greater than in a remote, less populated area. Given these circumstances, the evidence was sufficient to support the district court’s application of the substantial-risk-of-harm enhancement. U.S. v. Wells, 706 F.3d 908 (8th Cir. 2013).
8th Circuit allows reliance on co-conspirator testimony that drug was “ice.” (251) Defendant pleaded guilty to methamphetamine charges. He argued on appeal that the district court clearly erred in finding that the drug involved in the conspiracy was “ice” and not a mixture containing methamphetamine. Specifically, he contended that the government failed to meet its burden of proving the purity of the meth because it did not conduct any testing on the seized substances. The Eighth Circuit held that laboratory testing was not required, and the district court properly relied on a co-conspirator’s testimony to determine that the meth involved in the offense was “ice.” Defendant’s case was indistinguishable from U.S. v. Walker, 688 F.3d 416 (8th Cir. 2012), where the court relied on co-conspirator testimony that consistently identified the meth as “ice” based on its appearance, form, price and quality. Here, the court heard testimony from a co-conspirator that the meth from defendant was “powdery and rocky and … clear” and “white.” The co-conspirator also testified that defendant had referred to the substance as “ice,” that she sold it to her customers as “ice,” and that it was “much cleaner” than anhydrous meth. U.S. v. Lugo, 702 F.3d 1086 (8th Cir. 2013).
8th Circuit upholds application of meth importation enhancement. (251) Defendant pled guilty to conspiracy to distribute methamphetamine and alien re-entry after removal. Section 2D1.1(b)(5) provides for a two-level enhancement “[i]f the offense involved the importation of … methamphetamine or the manufacture of … methamphetamine from listed chemicals that the defendant knew were imported unlawfully….” The Eighth Circuit upheld the application of the importation enhancement. Defendant admitted to a DEA agent that a courier who delivered a meth load came from Mexico. The agent testified that the meth seized during the arrest, given its type and purity, likely came from a Mexican “super lab.” Defendant also made wire-tapped calls to cell phones with Mexican area codes. Although those phones were operable in the U.S., defendant made calls to Mexican meth sources, and made references to the border and places in Mexico (although authorities never recorded him discussing meth importation, and no cooperating co-conspirator testified to importation). Defendant also sent drug proceeds to Mexico. U.S. v. Rivera-Mendoza, 682 F.3d 730 (8th Cir. 2012).
8th Circuit holds defendant accountable for pseudoephedrine purchased by co-conspirators while he was incarcerated. (251) The evidence showed that defendant cooked methamphetamine for himself and others at multiple locations using pseudoephedrine pills provided by various individuals between 2006 and 2008. He argued for the first time on appeal that the court erred in holding him accountable for the entire amount of pseudoephedrine that he and his associates purchased between 2006 and 2008 because he was incarcerated during part of this time. The Eighth Circuit found no plain error. Although incarceration may constitute withdrawal from a conspiracy, it does not necessarily terminate an individual’s liability for the actions of a conspiracy. Here, there was no evidence that defendant affirmatively withdrew from the conspiracy, and it was reasonably foreseeable that the conspiracy would continue while he was incarcerated. U.S. v. Hodge, 594 F.3d 614 (8th Cir. 2010).
8th Circuit holds that court was not required to reduce drug quantity based on lab’s margin of error. (251) The government presented evidence supported by lab reports that 155.18 grams of methamphetamine was attributable to defendant. Both parties stipulated to a 10% margin of error. The district court held defendant accountable for 155.18 grams of meth, and defendant argued on appeal that he should have received the benefit of the 10% margin of error, which would have yielded a lower advisory guideline range. The Eighth Circuit held that the district court was not required to use the lab’s margin of error to drive the drug quantity down into a lower offense level. There was no evidentiary basis for applying the margin of error in one direction or another. The court’s quantity determination was well supported by the record. U.S. v. Montes-Medina, 570 F.3d 1052 (8th Cir. 2009).
8th Circuit holds that biphase liquid was not waste water to be excluded from drug quantity calculation. (251) Defendant was convicted of five drug counts related to manufacturing and distributing methamphetamine. In the shed next to defendant’s home, police had found a mason jar containing 62.46 grams of a biphase liquid consistent with meth production. Samples of the liquid tested positive for meth. The district court included the 62.46 grams of biphase liquid to calculate an offense level of 26. Defendant objected to counting the biphase liquid, arguing that it was waste water which could not be counted as a “mixture or substance” under 18 U.S.C. § 841(b) or U.S.S.G. § 2D1.1. The Eighth Circuit agreed that the entire weight of the biphase liquid was properly included under § 841(b)(1)(B) and in determining his advisory guideline range. The biphase liquid was not “waste water.” A government expert testified at trial that it could be usable, trafficable or stored for future meth manufacturing. Defendant did not submit any evidence that the biphase liquid was waste water. U.S. v. Clarke, 564 F.3d 949 (8th Cir. 2009).
8th Circuit holds that meth sentence was not unreasonably lenient. (251) Defendant pled guilty to methamphetamine conspiracy charges. Although his advisory guideline range was 188-235 months, the court granted a post-Booker variance under 18 U.S.C. § 3553(a) to impose an overall sentence of 96 months. The Eighth Circuit held that while the variance was substantial (49% below the bottom of the advisory guideline range), the sentence was not unreasonably lenient. The court did not consider any improper factors or fail to consider relevant factors. Defendant’s criminal history, his role in the offense, the need for general deterrence, the need for specific deterrence, defendant’s acceptance of responsibility, and his agreement not to contest removal were all relevant and proper factors under 18 U.S.C. § 3553(a). U.S. v. Jimenez-Gutierrez, 491 F.3d 923 (8th Cir. 2007).
8th Circuit agrees that meth lab posed risk to minors despite district court’s failure to address guideline factors. (251) The guideline for methamphetamine manufacturing, § 2D1.1(b) (8)(C), requires a six-level enhancement if the offense created a substantial risk of harm to the life of a minor. An application note says that in determining whether to give the enhancement, the court should look at the quantity of chemicals, the manner in which they were stored, and the location of the lab, among other factors. From the house where defendant and his girlfriend lived with the girlfriend’s three-year-old son, police seized chemicals and equipment used to manufacture methamphetamine, including butane fuel, lye, lighter fluid, iodine, sulfuric acid, and liquids from which methamphetamine could be recovered. At defendant’s sentencing for methamphetamine manufacturing, a government expert testified that the chemicals could burn the skin or irritate the lungs and could pose a serious danger to a minor. Relying on the expert, the district court enhanced defendant’s offense level under § 2D1.1(b)(8)(C), but did not mention the factors in the application note. The Eighth Circuit found that the expert’s testimony addressed the factors and upheld the enhancement. U.S. v. Patterson, 481 F.3d 1029 (8th Cir. 2007).
8th Circuit finds 87-month sentence reasonable for meth manufacture and firearms possession. (251) Police officers seized a disassembled methamphetamine lab and a sawed-off shotgun from defendant’s house. He pleaded guilty to being a felon in possession of a firearm, possessing a sawed-off shotgun, and attempting to manufacture methamphetamine. The district court sentenced defendant to 87 months, which was at the bottom of the advisory guidelines range. The Eighth Circuit rejected defendant’s challenge to the reasonableness of that sentence, noting that even if a guidelines sentence is not presumptively reasonable, it was entitled to some consideration. U.S. v. Patterson, 481 F.3d 1029 (8th Cir. 2007).
8th Circuit holds that court could use total weight of pure methamphetamine to calculate offense level. (251) Defendant pled guilty to possession with intent to distribute more than 500 grams of a mixture or substance containing methamphetamine. The guidelines provide alternative methods for determining drug quantity in meth cases – the court is to use the offense level determined by either the entire weight of the meth mixture or the weight of the actual (pure) methamphetamine, “whichever is greatest.” See § 2D1.1(c). The court here used the weight of pure meth (550.89 grams), resulting in an offense level of 31, and a guideline range of 108-135 months. Defendant argued for an offense level of 27, which would have resulted in an advisory range of 70-87 months. The Eighth Circuit found no error. The district court’s interpretation of the guidelines was consistent with the guidelines manual, which calls for use of the methamphetamine weight that will yield the greater offense level. U.S. v. Nevarez-Espino, 471 F.3d 926 (8th Cir. 2006).
8th Circuit rejects 90-month downward variance for methamphetamine defendant as unreasonable. (251) Defendant pled guilty to methamphetamine conspiracy charges. The district court sentenced defendant to 120 months’ imprisonment, 90 months below the advisory guideline range. As grounds for the variance, the court noted that no guns or violence were involved in the offense, defendant was young (24), defendant was addicted to methamphetamine, and there was a need to avoid sentencing disparity between defendant and a co-conspirator. The Eighth Circuit held that the sentence was unreasonable; the factors cited by the court did not justify the extent of the court’s downward variance. The court gave too much weight to the lack of violence and firearms. The presence or absence of these factors were already considered in determining the advisory guideline range. See § 2D1.1(b)(1). An extraordinary reduction cannot be based largely on the youth of the defendant because relative youth is a factor that may apply to many defendants. Third, drug addiction or abuse is not a proper reason to impose a downward variance, absent exceptional circumstances. Finally, defendant was not similarly situated to the co-conspirator who received a lighter sentence. The co-conspirator was a minor participant in the methamphetamine distribution ring, and had a lighter criminal history. U.S. v. Plaza, 471 F.3d 876 (8th Cir. 2006).
8th Circuit says court cannot impose downward variance based on same factors used for safety valve relief. (251) Defendant pled guilty to methamphetamine conspiracy charges. His advisory guideline range was 108-135 months, but the district court sentenced defendant to 60 months’ imprisonment. The court cited (1) the presence of the same factors that made defendant eligible for the § 3553(f) safety-valve, including that this was his first offense, that the crime did not involve violence, and that he was not a leader or manager, (2) the drugs used to calculate his offense level was substantially the result of six controlled purchases by law enforcement, (3) he faced deportation following his term of imprisonment, (4) he had lived an underprivileged life, and (5) his motivation for the crime was to gain money to provide treatment for his son’s cancer. The Eighth Circuit reversed. The court erred in considering the same facts that it considered in finding defendant eligible for the safety valve. Substantial variances based upon factors already taken into account in a defendant’s guideline sentencing range seriously undermine sentencing uniformity. The court also clearly erred when it found that police made six controlled purchases – they only made three, and the second and third purchases did not increase defendant’s guideline range. Given defendant’s history of reentering the country following deportation, the fact that he would be deported following his imprisonment would not support a variance. Finally, while defendant’s underprivileged background and need for money to pay for his son’s medical treatment were relevant, they did not by themselves support a variance of this magnitude. U.S. v. Morales-Uribe, 470 F.3d 1282 (8th Cir. 2006).
8th Circuit reversed where chosen base offense level was not supported by drug quantity finding. (251) Defendant pled guilty to conspiracy to distribute methamphetamine. The Eighth Circuit ruled that the district court committed plain error by reaching a base offense level that was not supported by its drug quantity finding. At sentencing, the court found defendant responsible for “at least 10,000 kilograms of marijuana equivalent” but then concluded that this amount called for an offense level of 38. This was error, since an offense level of 38 must be supported by a finding of at least 30,000 kilograms of marijuana equivalent. See U.S.S.G. § 2D1.1 (c)(1). A finding of at least 10,000 kilograms, without more, would only support a base offense level of 36. Although the government argued that the court obviously meant to say at least “30,000 kilograms of marijuana equivalent,” a review of the record revealed that this conclusion was not so obvious. U.S. v. Plancarte-Vazquez, 450 F.3d 848 (8th Cir. 2006).
8th Circuit upholds 155-month sentence for methamphetamine conspiracy as reasonable. (251) Defendant was convicted of conspiring to distribute more than 500 grams of a methamphetamine mixture. The Eighth Circuit upheld his 155-month sentence as reasonable. A sentence is reasonable and not an abuse of discretion if the sentencing court considered the matters contained in 18 U.S.C. § 3553(a), does not consider inappropriate matters, and makes no clear error of judgment. The record here reflected that the judge weighed the sentencing guideline range (235-293 months), the assistance that defendant provided to the government, the degree to which courts in the district generally reduce a sentence for substantial assistance, defendant’s role in the conspiracy and other matters set out in § 3553(a). The record provided no basis for concluding that the sentencing judge abused his discretion in sentencing defendant to 155 months, which was about 1/3 less than the low end of the guideline range. The fact that a co-conspirator received a lesser sentence was irrelevant. U.S. v. Sanchez, 429 F.3d 753 (8th Cir. 2005).
8th Circuit upholds estimate of meth lab’s capacity. (251) Defendant argued that the district court overestimated the efficiency of his methamphetamine lab and the quantity of the precursor materials used. He argued that his cooks only produced a yield of 15% from the precursor materials, rather than the 30% found by the court. The Eighth Circuit found no clear error. District courts determine the drug quantity attributable to a defendant by a preponderance of the evidence and make credibility decisions in the process. The district court heard the evidence and found the drug quantities had been proven by a preponderance of the evidence. U.S. v. Carpenter, 422 F.3d 738 (8th Cir. 2005).
8th Circuit says court erred in holding defendant accountable for actual methamphetamine rather than meth mixture. (251) Defendant pled guilty to conspiracy to manufacture methamphetamine. The PSR assessed 315-420 grams of actual methamphetamine to defendant based on his admission of completing 30 cooks yielding about 10.5 grams per cook. Defendant timely objected to the drug quantity amount, asserting that the actual meth yielded was not 315 grams, but considerably less because he did not produce pure methamphetamine. Defendant did not contest the court’s finding that he was responsible for at least 315 grams of a mixture of methamphetamine, but that the court erred in holding him responsible for 315 grams of actual meth. To calculate the actual methamphetamine, the district court was required to apply the percentage of actual meth found in the methamphetamine seized from defendant’s garage to the unrecovered 315 gram of methamphetamine he acknowledged. Police seized three batches of actual methamphetamine of varying purity levels (15%, 17% and 19%) from defendant’s garage on the night of his arrest. The district court did not apply any of the percentages, as required under the guidelines, to the gross amount produced. Based on U.S. v. Houston, 338 F.3d 876 (8th Cir. 2003), the court clearly erred. U.S. v. Mesner, 377 F.3d 849 (8th Cir. 2004).
8th Circuit says court may use entire drug quantity to calculate endangering offense level. (251) Defendant was convicted of conspiracy to manufacture methamphetamine, 21 U.S.C. §§ 841 (b)(1)(A) and 848, and endangering human life in manufacturing a controlled substance, 21 U.S.C. § 858. He argued that the court erred in using the entire drug quantity from § 2D1.1 to calculated his endangering offense level under § 2D1.10 because, although he stipulated to creating a substantial risk to human life on one day, the government failed to prove that he created a substantial risk to human life on the other occasions, and that production must be included to reach at least 50 grams of meth. The Eighth Circuit rejected this argument as contrary to § 2D1.10(a)(1), which provides that the base offense level under § 2D1.10 is based on “the offense level from the Drug Quantity Table in § 2D1.1.” Here, all the drug quantity attributed to defendant under § 2D1.1 was manufactured methamphetamine. Therefore, it was unnecessary to consider how this provision should be construed in a multi-count drug case in which methamphetamine constituted only a portion of the total drug quantity calculated under § 2D1.1. U.S. v. Fortney, 357 F.3d 818 (8th Cir. 2004).
8th Circuit says methamphetamine amendment did not violate substantive due process. (251) Defendant was convicted of conspiracy to manufacture methamphetamine, 21 U.S.C. §§ 841 (b)(1)(A) and 848, and endangering human life in manufacturing a controlled substance, 21 U.S.C. § 858. Under Amendment 608, the court added three levels to his conspiracy offense level because the offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life. See § 2D1.1(b)(6)(A). Amendment 608 also required a three-level increase to his endangering offense level, because the offense involved the manufacture of methamphetamine. See § 2D1.10 (b)(1)(A). Defendant argued that Amendment 608 violated his substantive due process rights because it created a “super” methamphetamine manufacturing offense whose guideline range would likely exceed the guideline range for more “serious” manufacturing or conspiracy offense. The Eighth Circuit found this contention without merit. Congress directed the Sentencing Commission to increase by at least three levels the offense level then applicable “to any offense relating to the manufacture [of] methamphetamine.” Methamphetamine Anti-Proliferation Act of 2000, § 3612(a)(1). The Commission obeyed this mandate by adding three-level increases to both § 2D1.1 and § 2D1.10. An amendment that implements a directive of Congress does not implicate substantive due process concerns. U.S. v. Fortney, 357 F.3d 818 (8th Cir. 2004).
8th Circuit says methamphetamine enhancements did not result in double counting. (251) Defendant was convicted of conspiracy to manufacture methamphetamine and endangering human life in manufacturing a controlled substance. Under Amendment 608, the court added three points to his conspiracy offense level because the offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life. See § 2D1.1(b)(6)(A). Amendment 608 also required a three-level increase to his endangering offense level, because the offense involved the manufacture of methamphetamine. See § 2D1.10(b)(1)(A). Defendant argued that this resulted in double counting because the same three-level increase was already imposed in determining his conspiracy offense level. The Eighth Circuit disagreed. Under the grouping rules, only the offense level for the most serious offense in the group was used as the group offense level. Defendant’s conduct in creating a risk of harm by manufacturing methamphetamine was an offense characteristic that increased the total offense level for his conspiracy count. But only the base offense level from the Drug Quantity Table in § 2D1.1 was incorporated into the base offense level for his endangering count. Thus, no double counting occurred by the manner in which the endangering base offense level was determined. Moreover, it is not double counting when the guidelines impose cumulative enhancements that reflect conceptually separate motions relating to sentencing, as §§ 2D1.10(a)(1) and 2D1.10 (1)(A) do. U.S. v. Fortney, 357 F.3d 818 (8th Cir. 2004).
8th Circuit holds defendant accountable for full 1.5 kilograms produced by meth conspiracy. (251) The Eighth Circuit upheld the district court’s finding that defendant was accountable for more than 1.5 kilograms but less than 5 kilograms of methamphetamine. First, defendant could be held accountable for the entire drug quantity produced by various members of the conspiracy. Defendant introduced his co-conspirators to each other and initiated the meth enterprise. He expected to receive a sizable portion of the proceeds from the enterprise. The amount of methamphetamine produced by the conspirators clearly exceeded 1.5 kilograms. May testified that he helped cook five or six “eight-balls” of meth (about 3.5 grams each) on 30 to 36 occasions, for a conservative estimate of 525 grams. Sandberg testified that on two different trips he purchased about $1400 or $1500 worth of pseudoephedrine, or about 34,000 sixty-milligram tablets. Using the DEA chemist’s production ratio, this would have resulted in the production of 1.8 kilograms of meth. Two other conspirators testified about their production, respectively, of 1.1 kilograms and 224 grams of meth. These totals were clearly in excess of 1.5 kilograms needed to support defendant’s sentence. U.S. v. Zimmer, 299 F.3d 710 (8th Cir. 2002).
8th Circuit upholds estimate of potential meth production from iodine defendant possessed. (251) Defendant was convicted of attempting to manufacture methamphetamine. He argued that the district court abused its discretion when it based its drug quantity calculation, in part, on his possession of 20 pounds of iodine, noting that the guidelines do not include iodine as a precursor chemical. The Eighth Circuit found no error, because iodine does not need to be listed in the guidelines as a list I or list II chemical in order to use it to estimate the quantity of methamphetamine defendant was capable of producing. The guidelines’ table of “Listed Chemicals and Quantity” apply to § 2D1.11’s “Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical,” but § 2D1.1 is applicable to § 841 convictions. Under Note 12 to § 2D1.1, the court may estimate drug quantity by considering the size or capability of any laboratory involved. Here, the government presented expert testimony regarding the production capability from the variety of chemicals and equipment found in defendant’s possession. The expert concluded that, from the 20 pounds of iodine defendant possessed, he could produce between 1.3 and 1.8 kilograms of meth, assuming the presence of phosphorous and pseudoephedrine in sufficient quantities and a 60 to 80 percent yield. Defendant’s own expert acknowledged that the government’s estimate was conservative. U.S. v. Hollingsworth, 298 F.3d 700 (8th Cir. 2002).
8th Circuit says jury should have determined whether drug calculation should be based on most or least abundant precursor. (251) Based on the 20 pounds of iodine defendant possessed, he could have produced between 1.3 to 1.8 kilograms of methamphetamine, assuming the presence of other chemicals in sufficient quantities. The district court held him accountable for 1.3 kilograms of meth. On appeal, the government conceded that defendant’s 32-year sentence violated Apprendi because it exceeded the maximum in § 841(b)(1)(C) for offenses involving an unspecified quantity of methamphetamine. However, it argued that the error was harmless because the amount of precursor chemicals was not contested and defendant argued only that the calculation should have been based upon the least abundant precursor chemical rather than the most abundant. The Eighth Circuit ruled that defendant’s challenge to the method of calculating drug quantity was sufficient to controvert the element of drug quantity for purposes of harmless error analysis. The fact that the evidence was contested did not make it improper to rely on the most abundant precursor. However, where the calculation will potentially increase the sentence above the statutory maximum, the quantity question, including the propriety of basing the quantity calculation on the most or least abundant precursor, must be submitted to the jury. U.S. v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001), overruled on other grounds by U.S. v. Diaz, 296 F.3d 680 (8th Cir. 2002).
8th Circuit upholds reliance on co-conspirators to estimate meth produced by conspiracy. (251) The PSR found that the actual amount of methamphetamine seized grossly underestimated the quantity for which defendant was responsible and recommended that the drug quantity be based on the statements of cooperating co-defendants, including Deal and Ware. Based on their estimates, the PSR concluded that the most conservative estimate of the amount of meth produced by defendant was 77 grams per week for an 18-week period, for a total of 1386 grams. The district court found that defendant was accountable for between 500 and 1500 grams of meth, and the Eighth Circuit affirmed. Pursuant to Deal’s testimony, the court could have arrived at a figure far in excess of 500 grams. Although Ware arguably testified to a smaller amount of meth, Ware defined “cook as the actual process of hydriotic acid and ephedrine and red phosphorous under heat,” while Deal “expanded that definition to any part of the process.” The testimony of co-conspirators is sufficient evidence on which the court may base the quantity of drugs used for sentencing. U.S. v. Atkins, 250 F.3d 1203 (8th Cir. 2001).
8th Circuit holds that lab’s production capability was foreseeable to defendant. (251) The Cates drug lab had 25 grams of methamphetamine and 454 grams of pseudoephedrine. An affidavit submitted at sentencing indicated that the potential meth yield from the 454 grams of pseudoephedrine was 261 grams. The Eighth Circuit upheld the district court’s decision to hold defendant accountable for 286 grams, the sum of 25 grams and the estimated yield of 261 grams. A sentencing court may rely on evidence submitted at trial or during the sentencing hearing and on uncontested statements from the defendant’s PSR. The evidence at trial was more than sufficient to establish defendant’s connection to the Cates lab. Defendant ordered, picked up, and delivered to James Cates 12 pounds of black iodine, a meth precursor. A government witness testified that the amount of precursor chemicals defendant delivered to Cates, when combined with a third ingredient, was enough to produce up to 2500 grams of meth. The production of the Cates lab was both within the scope of the criminal activity contemplated by the conspiracy defendant joined, and was reasonably foreseeable to her. U.S. v. Davidson, 195 F.3d 402 (8th Cir. 1999).
8th Circuit uses weight of mixture containing meth because it had higher offense level. (251) The Sentencing Guideline contain two methods for determining an defendant’s offense level in methamphetamine cases. One method is based on the weight of the actual meth contained within a mixture. The other method is based on the weight of the entire mixture containing a detectable amount of meth. See USSG § 2D1.1(c), Notes to Drug Quantity Table. Defendant argued that the district court should have considered only the actual weight of the meth rather than adopt a method that resulted in a higher base offense level. The Eighth Circuit found no error, since the Drug Quantity Table specifically directs district courts to use the method that results in the greatest offense level for the defendant. U.S. v. Fairchild, 189 F.3d 769 (8th Cir. 1999).
8th Circuit assumes that unseized methamphetamine had same purity as seized meth. (251) The district court based defendant’s sentence on between 300 and 1000 grams of actual methamphetamine, or 3 to 10 kilograms of a mixture including methamphetamine. One witness testified that he picked up and delivered at least 567 grams of drugs produced at the lab, including 122.25 grams that the police seized and subsequently determined to be 88 percent pure meth. The amount seized was therefore 107.58 grams of actual meth. If all 567 of the grams delivered by the witness were of the same purity, the amount of actual meth would be 498.96 grams. The Eighth Circuit found no error in the district court’s assumption that the 444.7 grams not seized had the same purity as the portion that was seized. Expert testimony tended to prove that the purity of meth produced in a lab is usually between 85 and 95 percent. Since the 88 percent was within this range, and the remainder of the meth was produced in the same lab by the same “cooks” who produced the portion determined to have a purity of 88 percent, the assumption that the purity would be consistent was reasonable. U.S. v. Mosby, 177 F.3d 1067 (8th Cir. 1999).
8th Circuit relies on amount of precursor chemicals to determine production capacity of meth lab. (251) Defendant and a co-conspirator maintained a methamphetamine laboratory in defendant’s cabin. They manufactured eight to 12 grams of meth on seven occasions, and on one occasion, unsuccessfully attempted to make 100 grams. At sentencing, a DEA chemist testified that based on the amount of precursors such as ephedrine and pseudoephedrine, the production capacity of defendant’s lab was 112 grams of actual methamphetamine. On the day he was arrested, defendant admitted that his objective was to manufacture 100 grams of meth. The Eighth Circuit held that the district court did not err holding defendant responsible for at least 100 grams but less than 300 grams of actual methamphetamine. It is appropriate to rely upon the testimony of a qualified expert to determine the manufacturing capability of a lab. U.S. v. Hunt, 171 F.3d 1192 (8th Cir. 1999).
8th Circuit says no D-meth finding was necessary where conspiracy extended past date distinction was eliminated. (251) Defendant argued that the district court erred in failing to make a finding as to whether L- or D-methamphetamine was involved in his conspiracy. Prior to November 1, 1995, the guidelines distinguished between the two types of meth and mandated harsher sentences for offenses involving D-meth. This distinction was eliminated by Amendment 518, which became effective November 1, 1995. The Eighth Circuit held that no D-meth finding was necessary because defendant’s conspiracy continued until July 11, 1996. Conspiracy is a continuing offense for which the completion date controls which version of the guidelines applies. Because Amendment 518 was effective at the completion date, no finding on the type of methamphetamine involved in the offense was required. The court also rejected another defendant’s claim that he withdrew from the conspiracy when he was arrested in October 1995. A participant must affirmatively withdraw from a conspiracy to end his legal liability. A co-conspirator testified that this second defendant did not take the affirmative action necessary to terminate his participation in the conspiracy. Also, the jury found defendant guilty of a conspiracy that began in October 1994 and ended on July 11, 1996. U.S. v. Maggard, 156 F.3d 843 (8th Cir. 1998).
8th Circuit rules percentage of d-meth above detectable amount was irrelevant. (251) Defendant argued that the district court erred by not allowing him to do an independent analysis of the methamphetamine to quantify the amount of d-meth or l-meth present in each sample. The Eighth Circuit found that the percentage of d-meth in the substance was irrelevant for sentencing purposes since each specimen contained at least a detectable amount of d-meth. The more serious d-meth found in a mixture, regardless of its percentage to the whole, determines the category of the entire quantity for sentencing purposes. In addition, although the government’s evidence was available to defendant for inspection and analysis at any time after its seizure, he did not seek an independent analysis of the substance until after trial and prior to sentencing. U.S. v. Ortega, 150 F.3d 937 (8th Cir. 1998).
8th Circuit includes substance containing 0.5% meth that was not tainted or unmarketable. (251) Defendant argued 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. He claimed that these substances were only 0.5% methamphetamine and were therefore undistributable or unmarketable. The Eighth Circuit found no error because defendant presented no evidence that the contents of the jar or any of the methamphetamine introduced at trial was tainted or unmarketable. Because 0.5% is a detectable amount, the guidelines required it to be included in calculating drug quantity under the guidelines. U.S. v. Dierling, 131 F.3d 722 (8th Cir. 1997).
8th Circuit bars downward departure based on low purity level of meth mixture. (251) Police seized from defendant a mixture containing less than one percent pure methamphetamine. The district court denied defendants’ motion for a downward departure based upon the low purity of the methamphetamine. The Eighth Circuit held that the Sentencing Commission explicitly considered the purity level of methamphetamine in a mixture, and therefore low purity was not a proper basis for departure. The guidelines set forth two methods for determining a base offense level in methamphetamine cases. One is based on the weight of the mixture, which refers to the entire weight of any mixture containing a detectable amount of the controlled substance. The other is based on the weight of the pure methamphetamine, which refers to the actual weight of the methamphetamine itself contained in the mixture. The Drug Quantity Table directs the sentencing court to use the method that results in the greater offense level. A departure below this “greater” offense level solely on the basis of a mixture’s low purity would directly contradict and effectively eviscerate the Commission’s explicit formula. U.S. v. Beltran, 122 F.3d 1156 (8th Cir. 1997).
8th Circuit holds use of D-meth guideline is not clear error. (251) Defendants argued for the first time on appeal that the court erred in basing their sentence on the guidelines for D-methamphetamine rather than L-methamphetamine. The Eighth Circuit held that the use of the D-methamphetamine guideline was not clear error. Although there were no explicit references at sentencing regarding the type of methamphetamine, the PSR referenced two tests performed on the seized methamphetamine that revealed the substance was D-methamphetamine. Defendants did not object to their PSRs. Therefore, the district court did not commit clear error by sentencing defendants for D-methamphetamine. U.S. v. Fairchild, 122 F.3d 605 (8th Cir. 1997).
8th Circuit holds type of methamphetamine irrelevant for mandatory minimum purposes. (251) Defendant was convicted of conspiring to distribute methamphetamine. He argued that the district court erred in determining that the substance involved was D-methamphetamine rather than L-methamphetamine. The Eighth Circuit found that defendant’s claim lacked merit since defendant was sentenced to the mandatory minimum 60-month sentence required by 21 U.S.C. § 841(b). The statute makes no distinction between D-methamphetamine and L-methamphetamine. U.S. v. Emmanuel, 112 F.3d 977 (8th Cir. 1997).
8th Circuit categorizes all as d‑meth even though only 4.5 of 399 grams were tested. (251) The government presented evidence that the 4.5 grams of meth seized from defendant were d‑methamphetamine. The district court determined that the entire 399 grams attributed to defendant were d‑meth, but defendant contended they were a mixture of dextro-levo-methamphetamine, or d,l‑methamphetamine. The Eighth Circuit held that the district court properly based defendant’s sentence on 399 grams of d‑meth. There was no evidence in the record that the substance was d,l‑meth. Moreover, even if the substance was d,l‑meth, it would not change the sentencing calculation. Since d,l‑meth is a mixture or substance containing both l‑meth and the more serious d‑meth, this more serious substance determined the category of the whole quantity for sentencing purposes. U.S. v. Behler, 100 F.3d 632 (8th Cir. 1996).
8th Circuit reaffirms Chapman approach to LSD for mandatory minimum purposes. (251) The district court imposed a 60‑month mandatory minimum sentence for conspiracy to distribute 8.5 grams of LSD. This total included the weight of the carrier medium, in accordance with Chapman v. U.S., 500 U.S. 452 (1991). After Chapman, the Sentencing Commission amended the LSD guideline to provide a uniform .4 mg per dose of LSD. But the Eighth Circuit, applying U.S. v. Stoneking, 60 F.3d 399 (8th Cir. 1995), held that the amended LSD guideline did not alter Chapman’s requirement to include the weight of the carrier medium when computing the statutory mandatory minimum sentence. Defendant remained subject to the mandatory minimum despite the guideline amendment. U.S. v. Van Thournout, 100 F.3d 590 (8th Cir. 1996).
8th Circuit estimates purity of methamphetamine from purity of prior delivery. (251) Defendant argued that the district court incorrectly found that he received three pounds of methamphetamine compound in April, when he only received two pounds. The Eighth Circuit held that any error was harmless because it did not affect his guideline calculation. Section 2D1.1(c) requires a court to use the greater of the offense level determined by the entire weight of the mixture or substance or the offense level determined by the weight of the actual methamphetamine. Using defendant’s figures, he delivered a total of 1.67 kilograms of methamphetamine compound for an offense level of 32, rather than 34. However, the court must also determine the quantity of actual methamphetamine involved. Although the April transaction was never recovered, its purity could be estimated from a similar June transaction. Using this purity level of 28%, the two pound mixture delivered to defendant in April had 254 grams of actual methamphetamine. Adding this to two other packages of methamphetamine seized from defendant resulted in a total of 495.2 grams of actual methamphetamine, for an offense level of 34. U.S. v. Byler, 98 F.3d 391 (8th Cir. 1, 1996).
8th Circuit bases sentence on full weight of substance that was 85 percent pure cocaine. (251) The district court sentenced defendant based on the full weight of the 500‑gram cocaine substance seized from him. Defendant argued that since the cocaine was only 85 percent pure, he should have been sentenced based on the “pure” cocaine. The Eighth Circuit held that defendant was properly sentenced for the full weight of the cocaine substance. Under 21 U.S.C. § 841(b)(1), as long as a mixture or substance contains a detectable amount of the controlled substance, the entire mixture or substance is to be weighed when calculating the sentence. U.S. v. Polk, 97 F.3d 1096 (8th Cir. 1996).
8th Circuit finds counsel not ineffective in failing to object to D‑meth at sentencing. (251) Defendant contended in a § 2255 motion that his trial counsel was ineffective for failing to object to the assumption at sentencing that the offense involved D‑methamphetamine rather than L‑methamphetamine. The Eighth Circuit held that defendant did not show a reasonable probability that the result would have been different had his counsel objected. The sole basis for defendant’s claim that his offense involved L-methamphetamine was his own sworn statement that the drugs he used had a caffeine‑like effect with no long‑term effects. Defendant’s statement was unsupported and self-serving and did not establish a basis for relief. The government’s evidence showed that defendant was a drug dealer who obtained drugs from one of the large methamphetamine dealers in town. The government witnesses included several long‑time users who testified that they had purchased drugs from defendant. U.S. v. Apfel, 97 F.3d 1074 (8th Cir. 1996).
8th Circuit finds adequate proof that substance was D‑ rather than L‑methamphetamine. (251) The district court ruled that the government failed to prove that defendants had distributed D‑methamphetamine and accordingly sentenced them under the lower guideline for distributing L‑methamphetamine. The Eighth Circuit found that the district court clearly erred in making this determination. A co‑conspirator linked two samples of methamphetamine to one defendant and one sample to the other. Laboratory testing revealed that both samples were D‑methamphetamine. Moreover, a government expert testified at the sentencing hearing that L‑methamphetamine has little, if any, stimulating effect to the central nervous system. Defendants made numerous multi-pound drug transactions over a period of time, and the co‑conspirator testified that he never received any complaints from his customers about the methamphetamine he received from defendants. U.S. v. Maza, 93 F.3d 1390 (8th Cir. 1996).
8th Circuit says court may estimate purity of unrecovered drugs based on seized drugs. (251) During a four-month period, defendant sold methamphetamine to an undercover agent on three occasions. At the time of the first sale, the agent saw that defendant had additional “eight balls” of methamphetamine, which defendant said he was going to sell to other persons. Using the purity from the methamphetamine actually seized from defendant, the district court estimated that each unrecovered eight ball contained 1.2 grams of actual methamphetamine. The 8th Circuit held that the district court properly relied on the purity level of the drugs actually seized to estimate the purity level of the drugs in defendant’s possession at the time of the first drug sale. U.S. v. Newton, 31 F.3d 611 (8th Cir. 1994).
8th Circuit approves sentence based on actual weight of methamphetamine. (251) Defendant argued that in sentencing him, the district court improperly relied on the actual weight of methamphetamine, rather than the total weight of the mixture or substance containing methamphetamine. The 8th Circuit found no error. Section 2D1.1(c) provides that in the case of a mixture or substance containing methamphetamine, the court is to use the offense level determined by the entire level weight of the mixture or substance, or the offense determined by the weight of the actual methamphetamine, whichever is greater. U.S. v. Newton, 31 F.3d 611 (8th Cir. 1994).
8th Circuit considers entire weight of Dilaudid tablets rather than just hydromorphone. (251) The 8th Circuit upheld the consideration of the entire weight of Dilaudid tablets possessed by defendant, rather than just the weight of the hydromorphone contained in the tablets. Section 841(b)(1)(b), which provides penalties for distribution of “street drugs,” includes the words “mixture or substance containing a detectable amount of” the controlled substance. But the absence of similar language in the provisions regarding pharmaceuticals does not dictate a different result. Senior Judge Bright dissented. U.S. v. Young, 992 F.2d 207 (8th Cir. 1993).
8th Circuit reaffirms that blotter paper should be included in weight calculation for LSD offense. (251) Defendant contended that the weight of blotter paper should not have been included in the weight calculations for his LSD offense. The 8th Circuit rejected this claim, noting that an 8th Circuit panel had recently decided this question adversely to defendant. U.S. v. Ruklick, 919 F.2d 95 (8th Cir. 1990).
8th Circuit upholds sentencing based on total PCP mixture involved without regard to purity. (251) Defendant contended that it violated due process to sentence him on the basis of the total quantity of PCP and ether mixture which he possessed, without any regard for the quantity of pure PCP contained in the mixture. Following Circuit precedent, the 8th Circuit rejected this contention. It was not arbitrary or irrational to sentence on the basis of the quantity of the PCP mixture involved, since it “is reasonably related to the proper legislative purpose of penalizing large volume drug traffickers more harshly. Although the ether-PCP ratio was high, this would have enabled defendant to distribute more PCP-laced cigarettes. U.S. v. Brown, 921 F.2d 785 (8th Cir. 1990).
9th Circuit interprets plea agreement to mean meth mixture, not ice. (251) Defendant pleaded guilty to supplying three kilograms of ice, a form of methamphetamine. Under Note (C) to the Drug Quantity Table in § 2D1.1(c), the offense level for ice depends on the quantity only if the methamphetamine is at least 80% average purity. Mixtures of methamphetamine are subject to a lower offense level for the same quantities. Three tests on the drugs seized from defendant showed purity levels of 33%, 57%, and less than 80%, although not all the drugs involved in defendant’s offense were tested. The Ninth Circuit held that the plea agreement should be read to mean that defendant supplied three kilograms of a mixture containing methamphetamine, not ice. U.S. v. Lee, 725 F.3d 1159 (9th Cir. 2013).
9th Circuit, in reversing, says court should consider defendant’s old age at resentencing. (251) Defendant, a 72-year-old woman, was convicted of distributing methamphetamine and was sentenced to 96 months, which was below the mandatory minimum of 120 months, based on her substantial assistance to the government. Defendant argued that the sentence was substantively unreasonable in part because a 96-month sentence meant she was likely to die in prison. After finding other errors in sentencing, the Ninth Circuit stated that on remand, the district court “should give more serious consideration to whether to impose a sentence that effectively condemns a 72-year-old woman who provided extensive assistance to the government to death in prison for an offense of the nature involved.” U.S. v. Lee, 725 F.3d 1159 (9th Cir. 2013).
9th Circuit affirms importation increase even though defendant who did not personally import drugs. (251) The guideline for drug offenses, § 2D1.1(b)(5)(A), provides for a two-level increase in offense level if the defendant’s offense involved the importation of methamphetamine. Defendant pleaded guilty in the District of the Northern Mariana Islands to possession of 947 grams of methamphetamine with intent to distribute it. Defendant argued that the enhancement could be applied only if the government proved that defendant himself imported the methamphetamine. The Ninth Circuit held that a defendant need not be personally involved in the importation of methamphetamine to receive an enhancement under § 2D1.1(b)(5). U.S. v. Biao Huang, 687 F.3d 1197 (9th Cir. 2012).
9th Circuit finds sufficient evidence to show knowledge that meth was imported. (251) Defendant pleaded guilty to possession of 947 grams of methamphetamine with intent to distribute. Section 2D1.1(b)(5), requires a two-level increase in offense level if the methamphetamine was imported. Without deciding whether the government must prove that defendant knew the methamphetamine was imported, the Ninth Circuit held that the evidence showed that defendant knew that fact. The court relied on the close relationship between defendant and his accomplice, together with the accomplice’s statement that the methamphetamine came from China. U.S. v. Biao Huang, 687 F.3d 1197 (9th Cir. 2012).
9th Circuit finds high-end sentence reasonable for meth trafficking. (251) Defendant sold small amounts of methamphetamine to an informant. After these sales, the informant arranged a 900-gram sale, and defendant and his accomplice were arrested when they tried to sell 947 grams to the informant. Defendant pleaded guilty without a plea agreement to conspiracy to distribute methamphetamine and four counts of possession of methamphetamine with intent to distribute. The district court calculated defendant’s guidelines range as 108-135 months, and sentenced him to 135 months. Defendant’s accomplice, who received the same sentence, pleaded guilty pursuant to a plea agreement and promised to cooperate. Although defendant claimed that the accomplice did not actually cooperate because he did not provide the source of the methamphetamine, the presentence report and the government both told the district court that the accomplice had cooperated. The Ninth Circuit held that defendant’s sentence was not substantively unreasonable. U.S. v. Biao Huang, 687 F.3d 1197 (9th Cir. 2012).
9th Circuit affirms within-guideline sentence for meth distribution by career offender. (251) Defendant pleaded guilty to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841. Because defendant qualified as a career offender, his offense level increased to 34. With a three-level reduction for acceptance of responsibility, defendant had a sentencing range of 188-235 months. The district court sentenced him to 224 months. On appeal, defendant argued that this sentence was unreasonable because he was not a “major dealer” and because his coconspirator (and girlfriend) received a lower sentence. The Ninth Circuit found that this sentence was not unreasonable. U.S. v. Dewey, 599 F.3d 1010 (9th Cir. 2010).
9th Circuit finds 168-month, within-Guidelines sentence reasonable in meth case. (251) At defendant’s sentencing on his conviction for conspiracy to distribute methamphetamine, the district court calculated the Guideline range as 168-210 months, based on an offense level of 35 and a criminal history category of I. Defendant then argued for a sentence of 120 months, and the government sought a sentence of 151 months. The district court imposed a 168-month sentence, based on defendant’s history and characteristics, the need for the sentence imposed, and the need to avoid unwarranted disparities. On appeal, defendant claimed that the sentence was unreasonable because, among other factors, his criminal history consisted only of misdemeanors, his involvement in the drug-trafficking organization was shorter than that of other coconspirators, and he had demonstrated remorse. The Ninth Circuit held that the district court adequately considered the factors in 18 U.S.C. § 3553(a) and that the sentence was reasonable. U.S. v. Rivera, 527 F.3d 891 (9th Cir. 2008).
9th Circuit says that expert’s meth estimate lacked reliable evidentiary basis. (251) At defendant’s sentencing for manufacturing methamphetamine, the district court determined the quantity of meth involved in the offense based in part on an expert’s testimony. That testimony rested in part on the expert’s assessment of the quantity of meth that could be produced using a 5,000-milileter flask found in defendant’s meth lab, even though that flask was apparently still in its original packaging. Although methamphetamine precursor chemicals were found in the lab, no methamphetamine was recovered. The expert did not know the purity of those chemicals and admitted that he could not reliably estimate the amount of meth that could be produced unless he knew the purity. The expert also admitted that his estimate represented the maximum theoretical yield from the lab. The Ninth Circuit held that the expert’s estimate had no reliable evidentiary basis and that the district court erred in relying on it. U.S. v. Chase, 499 F.3d 1061 (9th Cir. 2007).
9th Circuit holds that defense expert should have been appointed to assist in meth quantity determination. (251) Prior to his sentencing hearing on his conviction for methamphetamine manufacturing, defendant unsuccessfully requested the appointment of an expert to calculate the quantity of drugs that should be attributed to him. At sentencing, a government expert testified that approximately 500-750 grams of methamphetamine could have been produced using the equipment found at one of defendant’s meth labs. Based on the number of empty boxes of a precursor chemical, the expert conceded, however, that the quantity may have been as low as 40 to 60 grams. The district court attributed 500 grams of meth to defendant from the lab. On appeal, the Ninth Circuit held that the district court abused its discretion in failing to appoint an expert to assist defendant in calculating the quantity of meth and rebutting the government’s expert. U.S. v. Chase, 499 F.3d 1061 (9th Cir. 2007).
9th Circuit says that risk enhancement requires potential harm other than harm inherent in meth manufacture. (251) The controlled substance guideline, § 2D1.1(b)(5) (B), provides that a defendant’s offense level should be increased to 27 or by seven levels if the offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life or the environment. Defendant rented a motel room in which she and her coconspirators set up a methamphetamine manufacturing operation. At sentencing, defendant submitted an expert report stating that although methamphetamine manufacturing is dangerous, the expert could not conclude that the operation in which defendant participated posed a danger to anyone outside the motel room. The government’s expert reported that methamphetamine manufacturing posed a substantial risk of fire. The district court imposed the enhancement for substantial risk of harm. The Ninth Circuit reversed and held that the government must show a substantial risk of harm in addition to those inherent in the manufacture of methamphetamine. The court remanded to allow the district court to consider the factors in the commentary to the guidelines for determining whether the operation posed a substantial risk. U.S. v. Staten, 466 F.3d 708 (9th Cir. 2006).
9th Circuit says 30 years is not cruel and unusual sentence for methamphetamine trafficking. (251) Defendant was convicted of manufacturing methamphetamine. Based on the quantity of methamphetamine involved in his offense, he had an offense level of 38. The district court added enhancements for possession of firearms in connection with the offense and obstruction of justice. Defendant fell into criminal history category I, and his resulting sentencing range was 360 months to life. The district court sentenced him to 360 months. The Ninth Circuit held that in light of defendant’s “serious drug offenses,” his sentence was not grossly disproportionate to his crime and did not violate the Eighth Amendment’s cruel and unusual punishments clause. U.S. v. Barajas-Avalos, 377 F.3d 1040 (9th Cir. 2004).
9th Circuit says basing extent of departure on later-amended guideline violated Ex Post Facto Clause. (251) Defendant pleaded guilty to importing red phosphorous and iodine, both methamphetamine precursor chemicals, in violation of 21 U.S.C. § 843(a)(7). At sentencing, the district court applied guideline § 2D1.12 but departed upward by 14 levels on the ground that defendant’s offense was “large-scale.” To determine the extent of the departure, the court used as a guide § 2D1.11, which applies to crimes involving importation of listed chemicals. However, because iodine was not added to § 2D1.11 until after the offense was committed, the district court based the extent of the departure on the amount of hydriodic acid that could have been produced from the iodine and red phosphorus defendant imported. The Ninth Circuit held that the extent of the departure was unreasonable because it was based on hydriodic acid, not iodine, and therefore rested on a guideline that did not apply to the offense of conviction. The court also held that because iodine was not listed in § 2D1.11 at the time of the offense, the departure also violated the Ex Post Facto Clause. U.S. v. Alfaro, 336 F.3d 876 (9th Cir. 2003).
9th Circuit reverses where drug quantity was based on unproven ability to extract precursors from tea. (251) When arrested, defendant was trying to extract precursor ingredients for methamphetamine from mahuang tea, but he told officers that he had not succeeded in extracting the ingredients. In setting defendant’s offense level for a methamphetamine offense, the district court relied on a forensic report stating that defendant could have extracted the precursors from the tea and estimating the quantity that the tea would have produce. Defendant countered with an expert report expressing doubt that it was possible to extract the methamphetamine ingredients from the tea and stating that in any event defendant lacked the necessary equipment or skills. The Ninth Circuit held that the forensic report’s calculations were not supported by sufficient supporting data and were not reliable. U.S. v. Rosacker, 314 F.3d 422 (9th Cir. 2002).
9th Circuit upholds conversion of methamphetamine to marijuana equivalency. (251) Defendant was responsible for 1,189.9 grams of methamphetamine from drug transactions at the end of October and from the amount recovered from his home. Based on purities of 43-45%, the 1,189.9 grams converted to 840.4 grams of methamphetamine (actual). The Ninth Circuit held that it was proper to base defendant’s sentence on this amount plus seven pounds of meth sold during June and August of 1998. Because the actual purity of the seven pounds was not known, the district court properly treated it as “generic” meth and converted the 3,175.2 grams into its marijuana equivalent. See USSG § 2D1.1, Note 10. The court adopted the conversion rates based on the table set forth in § 2D1.1 and properly found defendant responsible for 6,350.4 kilograms of marijuana for the seven pounds of methamphetamine (generic), and 8,404 kilograms of marijuana for the 840.4 grams of methamphetamine (actual). U.S. v. Aquino, 242 F.3d 859 (9th Cir. 2001).
9th Circuit uses purity of drugs seized to estimate the purity of the remainder. (251) Defendant conspired to sell 6.8 kilograms of methamphetamine. He displayed half of the negotiated amount and promised to deliver the entire 6.8 kilograms the following day. The police arrested him during the transaction and seized 3.2 kilograms, of which about 2.62 kilograms was pure methamphetamine. The Ninth Circuit held that the district court properly used the purity of the drugs actually seized to estimate the purity of the total quantity of drugs the defendant agreed to deliver. Thus, the district court was entitled to assume that the remaining 3.6 kilograms would be 80% pure methamphetamine and that the full 6.8 kilograms would contain about 5.5 kilograms of pure methamphetamine. This is in accord with the Seventh and Eighth Circuits in U.S. v. Jarrett, 133 F.3d 519, 529-31 (7th Cir. 1998) and U.S. v. Newton, 31 F.3d 611, 614 (8th Cir. 1994). The defendant may escape this presumption by proving that he never intended to deliver or was incapable of delivering the agreed-upon amount. But no such proof was offered here. U.S. v. Lopes-Montes, 165 F.3d 730 (9th Cir. 1999).
9th Circuit includes weight of sterilized marijuana seeds in drug quantity. (251) Defense counsel asked that the marijuana be weighed only after removing any sterilized marijuana seeds. The district court denied the request, ruling that guideline § 2D1.1 requires that sterilized seeds be weighed together with pure marijuana for sentencing purposes. On appeal, the Ninth Circuit affirmed. The court held that “[a]lthough perhaps insufficiently ‘homogeneous’ to be classified as a ‘substance,’ a package consisting of the pure drug marijuana and sterilized seeds falls comfortably within the definition of ‘mixture.’“ Accordingly, the district court properly found that sterilized marijuana seeds came within the definition of ‘mixture or substance’ in guideline § 2D1.1 and 21 U.S.C. § 841. The seeds did not have to be removed before the marijuana was used, so they did not come within the exception in commentary note 1 to § 2D1.1. U.S. v. Garcia, 149 F.3d 1008 (9th Cir. 1998).
9th Circuit retroactively excludes weight of all “unmarketable” material from meth mixtures. (251) Defendant was sentenced in 1990 based on the total weight of liquid mixtures in which the presence of methamphetamine was detected. At the time, Application Note 1 to § 2D1.1 provided that “mixture or substance as used in this guideline has the same meaning as in 21 U.S.C. § 841.” Thereafter, Amendment 484 retroactively added an exception, stating that “mixture or substance does not include material that must be separated from the controlled substance before the controlled substance can be used.” The Ninth Circuit held that this amendment adopted a “marketable material” approach, which required the district court to exclude not only “waste” materials, but also any intermediary solutions that would have been removed before final sale or use. The Ninth Circuit held that its interpretation applied retroactively, and remanded the case to the district court to reconsider defendant’s motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Because the liquid mixture had long since been destroyed, the court said the district court could employ “alternative means” to calculate the weight of the unusable liquid. For example, the court could use its best estimate of the production capacity of the laboratory, under Application Note 12 to § 2D1.1. U.S. v. Sprague, 135 F.3d 1301 (9th Cir. 1998).
9th Circuit says all “non-marketable” materials must be excluded from mixtures, not just “waste.” (251) Application Note 1 to § 2D1.1 originally provided that “mixture or substance as used in this guideline has the same meaning as in 21 U.S.C. § 841.” However, in 1993, Amendment 484 added an exception, stating that “mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used.” This amendment was included in the list of retroactive amendments in § 1B1.10. Before this amendment, the courts generally held that the entire weight of a mixture containing methamphetamine and liquid byproducts should be used in sentencing because the mixture is integral to producing the drug. See U.S. v. Beltran-Felix, 934 F.2d 1075, 1076 (9th Cir. 1991); U.S. v. Innie, 7 F.3d 840, 845-47 (9th Cir. 1993). However in the present case, the Ninth Circuit held that Amendment 484 adopted a “marketable material approach” which requires the court to subtract not only “waste” materials but also intermediary solutions which must be removed before the drug¾here methamphetamine¾can be sold or used. The court emphasized that its decision applied only to calculations under the guidelines, and the Beltran-Felix rule continued to apply when calculating statutory mandatory minimum sentences. U.S. v. Sprague, 135 F.3d 1301 (9th Cir. 1998).
9th Circuit, applying Koon, permits downward departure for lack of knowledge of purity of drugs. (251) As the middle-man between the informant and the suppliers, defendant had no control over, or knowledge of, the purity of the methamphetamine he delivered. The district court ruled that it had no discretion to depart based on lack of knowledge of the purity of the drugs, but on appeal, the Ninth Circuit reversed, emphasizing that after Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), courts may not create additional categories of factors that they deem inappropriate as grounds for departure. The factors expressly prohibited by the guidelines are few. The court noted that application note 14 to § 2D1.1 permits a downward departure under certain circumstances when a defendant’s own conduct or that of his co-conspirators results in an offense level greater than justified by his capability. This note did not apply to defendant, but neither did it “occupy the field.” Although application note 9 precludes an upward departure on the basis of unusually high purity, it says nothing about whether a district court can depart downward. The court said that what falls within the “heartland” of a guideline is within the discretion and special expertise of the district court in the first instance. The case was remanded to permit the district court to exercise its discretion. U.S. v. Mendoza, 121 F.3d 510 (9th Cir. 1997).
9th Circuit finds no “plain error” in sentencing defendants for D-meth. (251) Defendants did not object at trial or sentencing about the type of methamphetamine involved in their case. The presentence report and the district court proceeded as if the methamphetamine at issue was the “more common controlled substance,” i.e. D-meth. Nevertheless, for the first time on appeal, defendants argued that the district court should have required the government to prove that the methamphetamine was D-meth as opposed to L-meth. The Ninth Circuit rejected the argument, agreeing with the Tenth Circuit’s decision in U.S. v. Deninno, 29 F.3d 572 (10th Cir. 1994), cert. denied, 115 S.Ct. 1117 (1995), that where defendants do not object at trial or sentencing about the type of methamphetamine involved in their case, it is not plain error for the district court to sentence without making a factual finding that the methamphetamine is D-meth as opposed to L-meth. The court noted that under U.S. v. Turman, 104 F.3d 1191, 1194 (9th Cir. 1997), plain error “is error that is so clear cut, so obvious, a competent district judge should be able to avoid it without benefit of objection.” U.S. v. Scrivner, 114 F.3d 964 (9th Cir. 1997).
9th Circuit bars collateral attack on D-L-meth sentence where issue was not raised earlier. (251) Four years after his conviction, defendant filed a 28 U.S.C. § 2255 motion claiming that the sentencing court erred failing to require the government to prove that he possessed D- rather than L-methamphetamine. The district court denied that motion and on appeal, the Ninth Circuit affirmed. The court agreed with the Fifth Circuit’s opinion in U.S. v. Seyfert, 67 F.3d 544 (5th Cir. 1995), that because the defendant failed to raise any objection to the type of methamphetamine either at sentencing or at direct appeal, he was barred from raising the issue in a § 2255 motion. The court also rejected defendant’s ineffective assistance of counsel claim, finding that counsel’s failure to raise this issue did not fall below prevailing professional standards. Nor did the district court err in refusing to grant an evidentiary hearing on the ineffective assistance claim. U.S. v. McMullen, 98 F.3d 1155 (9th Cir. 1996).
9th Circuit acknowledges that carrier medium must be included in weight of LSD for mandatory minimum purposes. (251) In its original opinion in this case, U.S. v. Muschik, 49 F.3d 512 (9th Cir. 1995), the Ninth Circuit held that the guideline weight of 0.4 mg per dosage unit of LSD must be used not only for calculating the guideline sentence, but also when computing mandatory minimum sentences for LSD under 21 U.S.C. § 841(b)(1), regardless of the actual weight of the carrier medium. That decision was overruled by the Supreme Court’s decision in Neal v. U.S., 516 U.S. 284 (1996), and the Supreme Court thereafter vacated the Ninth Circuit’s decision in this case. On remand, the Ninth Circuit followed the Neal decision and held that in calculating the mandatory minimum sentence under 21 U.S.C. § 841(b)(1), the entire weight of the LSD, including the carrier medium, must be included. U.S. v. Muschik, 89 F.3d 641 (9th Cir. 1996).
9th Circuit says amendment excluding waste water from drug mixture was clarifying and retroactive. (251) Effective November 1, 1993, Amendment 484 changed Application Note 1 to U.S.S.G. § 2D1.1 to state that “mixture or substance” does not include “materials that must be separated from the controlled substance before [it] can be used,” such as waste-water. Defendant’s original 1989 sentence included the weight of waste water in the methamphetamine manufacturing process. He was resentenced after the November, 1993, amendment, but the district court ruled that Amendment 484 was a substantive amendment, which, if applied, would have required the court to use the 1994 guidelines manual in its entirety, yielding a longer sentence. On appeal, the Ninth Circuit reversed, holding that Amendment 484 was a “clarifying” amendment even though it changed Ninth Circuit law, and therefore it was retroactive. Although U.S.S.G. § 1B1.11 directs that the guidelines’ manual in effect on a particular date should be applied in its entirety, if an earlier edition of a manual is applied, “the court shall consider subsequent amendments to the extent that such amendments are clarifying rather than substantive changes.” U.S. v. Innie, 77 F.3d 1207 (9th Cir. 1996).
9th Circuit says government did not show that methamphetamine was D-meth. (251) In this “no dope” case, the methamphetamine was never recovered or tested by the government nor did the government discover the laboratory where the drug was manufactured, or present any evidence of production method or materials. Nevertheless, the district court found that the methamphetamine was D-meth based on affidavits from DEA chemists stating that clandestine laboratories almost always manufacture D-meth or DL-meth, a mixture of D- and L-meth. One chemist said he had never found pure L-meth, which has few, if any stimulating properties. Both chemists acknowledged that a clandestine lab might manufacture L-meth by mistake. There was testimony at trial that the methamphetamine looked “kind of funny, orange,” and that it was so “funny looking that it was hard to sell.” A witness’s wife had used it and said it was “not the best . . .pretty different.” On this evidence, the Ninth Circuit held that the government had not met its burden to show that the drug was D-meth and the district court clearly erred in so finding. U.S. v. Dudden, 65 F.3d 1461 (9th Cir. 1995).
9th Circuit applies D-methamphetamine guideline, despite “rule of lenity.” (251) Defendant argued that the “rule of lenity” required him to be sentenced based on L-methamphetamine, which is treated less harshly by the guidelines. But an expert testified that the evidence taken from the shed indicated that the methamphetamine production process could only result in the production of D-methamphetamine. The Ninth Circuit said the rule of lenity “does not apply unless a statute is grievously ambiguous.” There was no ambiguity here, and the defendant was properly sentenced based on the laboratory’s capacity to produce D-methamphetamine. U.S. v. Basinger, 60 F.3d 1400 (9th Cir. 1995).
9th Circuit reverses departure for “cheating” DEA agents in drug deal. (251) Instead of delivering three kilos of cocaine to the undercover DEA agents, defendant delivered three bricks of sawdust with about 25 grams of cocaine in a hollowed-out space. The district court departed upward five levels for the increased likelihood of violence during an attempted drug fraud. Defendant also received a five-year consecutive sentence under 18 U.S.C. § 924(c) for carrying a firearm in connection with the crime. On appeal, the 9th Circuit reversed the departure, holding that § 924(c) “necessarily reflect[s] concern for the increased risk of violence that attends attempted drug frauds (and attempted arrests) when weapons are present.” Since this factor was already considered in the 924(c) count, it was it was improper to use it to depart on the drug count. Judge Rymer dissented. U.S. v. Zamora, 37 F.3d 531 (9th Cir. 1994).
9th Circuit holds defendant responsible for unusable part of mixture containing meth. (251) The liquid methamphetamine mixture found in defendant’s motel room was four to eight percent pure. The district court rejected defendant’s argument that he should be sentenced only for the amount of the mixture that was consumable. On appeal, the 9th Circuit affirmed based on prior precedent. The court did not discuss the November 1, 1993 amendment to section 2D1.1 which provides that the term “mixture or substance” does not include portions of a drug mixture that must be separated from the controlled substance before it can be used. Nor did the court mention that on July 27, 1993, the Sentencing Commission made this amendment retroactive. U.S. v. Innie, 7 F.3d 840 (9th Cir. 1993).
9th Circuit holds that 2,779 grams of cornmeal and .10 grams cocaine was not a “mixture.” (251) The 9th Circuit concluded that the cornmeal was not used to facilitate the distribution of one tenth of a gram of cocaine, but the other way around, i.e., the cocaine was spread on strategic spots of the cornmeal package to trick the purchaser into buying cornmeal, believing it was cocaine. The panel held that this was not a “mixture” under 21 U.S.C. section 841 or U.S.S.G. section 2D1.11(c) because the cornmeal was not (1) used to dilute the cocaine, (2) seized as part of the product, moving through the chain of distribution, nor (3) a consumable carrier medium. The case was remanded for resentencing. U.S. v. Robins, 967 F.2d 1387 (9th Cir. 1992).
9th Circuit, following Chapman, holds that LSD includes weight of blotter paper. (251) Following the Supreme Court’s decision in Chapman v. U.S., 500 U.S. 453, 111 S.Ct. 1919 (1991), the 9th Circuit held that blotter paper is a “mixture or substance containing a detectable amount” of LSD, and therefore the district court erred in not including its weight when sentencing the defendant under 21 U.S.C. § 841(b)(1)(B)(v). U.S. v. Mosti, 936 F.2d 425 (9th Cir. 1991).
9th Circuit holds that “mixture” rule applies even though mixture containing drugs is not marketable. (251) Defendant pled guilty to possessing with intent to distribute approximately 29 grams of methamphetamine contained in a liquid solution of 192 grams. The district court sentenced him under 21 U.S.C. § 841(b)(1) (B)(viii) to the mandatory minimum term of five year imprisonment and four years of supervised release. On appeal, defendant argued that the 192 gram solution of methamphetamine “was not in a distributable state.” He argued that because the liquid solution was not yet “readily marketable,” it should not have been used to find that he possessed more than 100 grams of a mixture containing methamphetamine. The 9th Circuit rejected the argument, ruling that the statute does not require that the mixture be “marketable.” The court found no statutory exemption for the by products of methamphetamine manufacture. U.S. v. Beltran-Felix, 934 F.2d. 1075 (9th Cir. 1991).
9th Circuit reverses departure where no showing that 46% pure heroin was “of unusually high purity.” (251) Application Note 9 to guideline § 2D1.1 provides that trafficking in controlled substances of unusually high purity may warrant an upward departure, particularly in the case of heroin. Here however, the 9th Circuit found no evidence to support a finding that heroin of 46% purity is of “unusually high purity.” Nor did the district court make such a finding. Although the government purported to rely upon “narcotics experts” for the proposition that 46% purity is “consistent with what is considered to be of good quality,” it provided no factual proof, and in any event its contention that the heroin was either of “good quality” or “fairly high purity” was insufficient to warrant departure. U.S. v. Martinez-Duran, 927 F.2d 453 (9th Cir. 1991).
9th Circuit holds that heroin and unidentified white powder constituted a “mixture or substance” under § 2D1.1. (251) The DEA chemist testified that the material was “composed of a mixture of hard lumps similar to very carmelized brown sugar and a fine substance similar to flour or white sugar.” She also testified that to facilitate analysis of the purity of the material, she separated the lumps of heroin from the unidentified substance with a metal sieve. Defendant argued that as a matter of law, the heroin and unidentified powder did not constitute a mixture or substance for purposes of 21 U.S.C. § 841(b) and guideline § 2D1.1, “because of its heterogeneous nature and its easy mechanical separability into the two substances.” The 9th Circuit rejected this argument, holding that the definition of “mixture” does not “imply or require homogeneity.” The court found no evidence in the record to suggest that the unidentified substance was not consumable by the ultimate user. U.S. v. Chang Yu-Chong, 920 F.2d 594 (9th Cir. 1990).
10th Circuit holds that substance with 50 or more grams of meth triggers 10-year mandatory minimum. (251) The government seized from defendant’s vehicle a package containing material weighing 439.5 grams that was “85.1 percent pure methamphetamine.” Thus, there were 374 grams of actual or pure meth in the package. There is a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1) (A)(viii) for possession of “50 grams or more of methamphetamine … or 500 grams or more of a mixture of substance containing a detectable amount of methamphetamine.” Defendant argued that the 50-gram provision applies only when the meth is pure. The Tenth Circuit rejected this argument, noting that it was based on a misconception that “pure” methamphetamine is different from methamphetamine in a mixture. Circuit courts have repeatedly rejected the argument that “50 grams or more of methamphetamine” applies only when the material possessed by the defendant is pure methamphetamine (as opposed to meth found in a mixture or substance). U.S. v. Villegas, 554 F.3d 894 (10th Cir. 2009).
10th Circuit rejects DEA chemist’s estimate that relied on unverified field estimate. (251) Defendants used an abandoned house as a place to manufacture methamphetamine. At sentencing, a DEA chemist testified that she had concluded that the pseudoephedrine found in two coffee filters in the house was capable of producing 153.9 grams of methamphetamine. The conclusion was based on extrapolation from the two samples of pseudoephedrine that had been furnished to her. However, in determining the quantity of seized pseudoephedrine hydrochloride, the chemist relied on an unidentified officer’s estimate that one coffee filter contained about 100 grams and the other about 150 grams. The Tenth Circuit held that the district court improperly relied on the chemist’s estimate, since it was based on a field estimate that had no indicia of reliability. The chemist did not know who made the estimates of the amount of pseudoephedrine in the coffee filters, nor did she know how the estimates were made. Different powdery substances have different densities, and there was no evidence that the person who made the field estimate had any knowledge about the density of pseudoephedrine. Moreover, the chemist herself admitted that she would not attempt to estimate a substance’s weight based solely on its appearance. U.S. v. Higgins, 282 F.3d 1261 (10th Cir. 2002).
10th Circuit upholds reliance on extrapolation of lab’s manufacturing capacity. (251) Police seized from defendant’s residence materials consistent with the manufacture of methamphetamine, and two recipes for meth production. At trial, a government chemist testified that he tested one of the recipes and found that it did produce meth, and that based on his training and experience, he believed the other recipe also would produce meth. Extrapolating from the quantity of muriatic acid, a precursor chemical, that was found and apparently already used, the probation office arrived at theoretical yields for defendant’s lab of up to 23 pounds of meth. The PSR then used “the most conservative estimate” of six pounds of actual methamphetamine.” The Tenth Circuit upheld the district court’s use of the PSR’s six-pound estimate as the manufacturing capacity of defendant’ lab. Defendant’s challenge to the court’s determination of his meth lab’s capacity was very similar to one rejected in U.S. v. Short, 947 F.2d 1445 (10th Cir. 1991). In Short, as here, the expert testimony at trial identified materials found in the defendant’s home as elements of a viable meth cooking proceed, but did not testify as to the specific quantity that could be manufactured from the chemicals and equipment found. The Short court found no clear error in the district court’s reliance on the PSR’s approximations of the manufacturing yield factor. Moreover, here, as in Short, defendant did not produce an expert of his own to challenged the proffered figures. U.S. v. Becker, 230 F.3d 1224 (10th Cir. 2000).
10th Circuit holds that court erred in relying on meth mixture rather than pure meth in determining sentence. (251) Defendant’s offense involved 1678 grams of a methamphetamine mixture, or 1276 grams of pure methamphetamine. The Tenth Circuit held that the district court erred in basing defendant’s sentence on the quantity of the meth mixture rather than the quantity of pure meth. Section 2D1.1(c) note (B) directs the district court to “use the offense level determined by the entire weight of the mixture or substance, or the offense level determined by the weight of the … methamphetamine (actual), whichever is greater.” The district court should have used the quantity of methamphetamine (actual) to find the base offense level because it produced a higher sentence. U.S. v. Gigley, 213 F.3d 509 (10th Cir. 2000).
10th Circuit rejects claim that government manipulated purity of meth to increase sentence. (251) An undercover agent sold defendant 454 grams of a substance that was 70 percent pure meth. At sentencing, the district court found that the substance was 317.9 grams of actual meth and, because this exceeded 100 grams, sentenced defendant to life imprisonment. 21 U.S.C. § 841(b)(1)(A) (requiring a life sentence for offenses involving 100 grams or more of methamphetamine or one kilogram or more of a mixture containing a detectable amount of meth). Defendant claimed the government impermissibly manipulated his sentence by controlling the purity of the substance sold to him, and that his sentence should have been based on the weight of the total mixture rather than the weight of the meth. Under U.S. v. Lacey, 86 F.3d 956 (10th Cir. 1996), a claim of sentencing entrapment is analyzed under the “outrageous government conduct” standard. The Tenth Circuit ruled that defendant failed to meet this standard. He did not claim that he was induced to purchase a purer batch of drugs than he otherwise would. Moreover, the fact that he tested the meth himself and pronounced it “fine” would undermine any such claim. U.S. v. Eads, 191 F.3d 1206 (10th Cir. 1999).
10th Circuit finds counsel’s failure to object to D‑meth was ineffective assistance. (251) Both defendants were sentenced as if they were trafficking in D‑methamphetamine, without any proof or findings regarding the nature of the methamphetamine involved. In a § 2255 motion, defendants claimed their counsel was ineffective for not objecting to the government’s failure to prove the type of methamphetamine. The Tenth Circuit agreed that defense counsel’s failure to object was ineffective assistance. The argument was clearly meritorious, and counsel’s failure to raise it fell outside the range of reasonable professional competence. The court directed that on remand, the district court should determine the type of methamphetamine involved. U.S. v. Glover, 97 F.3d 1345 (10th Cir. 1996).
10th Circuit finds defendant could foresee converting pure drugs to street drugs. (251) Defendant delivered 24 ounces of pure heroin to the operator of a heroin distribution ring. The district court interpreted the commentary in note 10 to § 2D1.1 of the 1988 guidelines to require the conversion of pure drugs to the quantity to be sold at the street level. Accordingly, the court multiplied the 24 ounces by 7, the number of times the drug was to be cut for resale, to reach a figure of 168 ounces. In a § 2255 motion, defendant argued that his counsel’s failure to challenge this conversion was ineffective assistance. The Tenth Circuit held that the guidelines do not require the conversion of pure drugs, but defendant could be held responsible for the quantity to be sold at retail as relevant conduct. In a drug conspiracy case, a defendant is responsible for conduct in furtherance of the conspiracy that was reasonably foreseeable. The district court found that the later drug sales were a foreseeable result of his drug sales and were well within the scope of his agreement to provide heroin for subsequent distribution. Under these circumstances, defendant’s attorney had little to gain by raising the multiplier issue on appeal. Rogers v. U.S., 91 F.3d 1388 (10th Cir. 1996).
10th Circuit, en banc, holds amendment excluding liquid by‑products does not apply to mandatory minimum. (251) Effective November 1, 1993, the Sentencing Commission amended note 1 to § 2D1.1 to exclude unusable liquid byproducts in computing the weight of controlled substances. Here, defendant possessed 32 grams of a liquid mixture containing 28 grams of pure methamphetamine. The district court sentenced him based on the entire 32 kilograms. Defendant filed a § 3582(c)(2) motion for a sentence reduction. The government conceded that the amended commentary applied for guideline purposes, but contended that defendant was still subject to a mandatory minimum sentence under 21 U.S.C. § 841(b)(1) (A)(viii). The Tenth Circuit, en banc, held that the guideline amendment did not apply for mandatory minimum purposes. In Neal v. U.S., 116 S.Ct. 763 (1996), the Supreme Court reaffirmed that Chapman v. U.S. 500 U.S. 453 (1991) sets forth the governing definition of “mixture or substance” under § 841. Although Chapman interpreted “mixture or substance” in § 841(b)(1)(B)(v), identical terms in the same statute have the same meaning. Chief Judge Seymour, and Judges Porfilio and Henry dissented. U.S. v. Richards, 87 F.3d 1152 (10th Cir. 1996) (en banc).
10th Circuit declines to retroactively apply Amendment 484 to reduce sentence. (251) Defendant was convicted of attempting to manufacture P2P and amphetamine. His base offense level was determined by multiplying the entire 94 liters of the liquid mixture which defendant was using to make P2P by its cocaine equivalent. Defendant later moved to reduce his sentence based on Amendment 484 to § 2D1.1 (effective November 1993), which provides that materials that must be separated from a controlled substance before use should not be included in the weight calculations. The Tenth Circuit upheld the court’s refusal to retroactively apply the amendment. Retroactive application is not required by § 1B1.10(a), but falls within the district court’s discretion. The court properly considered the factors under § 3553(a), noting the case involved a clandestine lab engaged in the process of manufacturing amphetamines, P2P is a controlled substance and the guidelines take into account a percentage of waste in P2P as evidenced by a sizeable decrease in drug equivalency ratio. Moreover, the amendment would result in the same offense level as under the old guideline. U.S. v. Dorrough, 84 F.3d 1309 (10th Cir. 1996).
10th Circuit relies on last minute affidavit to support D-methamphetamine finding. (251) Defendant objected to the PSR’s use of the guidelines for D‑rather than L‑methamphetamine. At sentencing, the government admitted it bore the burden of proving the substance was D‑methamphetamine, but stated that as of the date of sentencing the lab results were not available. The district court, over defendant’s objection, granted the government a three hour continuance. At the continued hearing, the government presented a notarized affidavit from the lab that it had received by fax which stated that the substance was D‑methamphetamine. The Tenth Circuit upheld the court’s use of the last‑minute affidavit to base defendant’s sentence on D‑methamphetamine. The district court had discretion to grant or deny the government’s request for a continuance of the sentencing hearing. Moreover, even if the court abused its discretion in granting the continuance and admitting the affidavit, there was no indication that defendant suffered prejudice. The grounds on which defendant would have attempted to impeach the affidavit were “flimsy” at best. U.S. v. Miller, 84 F.3d 1244 (10th Cir. 1996), overruled on other grounds by U.S. v. Holland, 116 F.3d 1353 (10th Cir. 1997).
10th Circuit requires expert testimony on chemical nature of DL-methamphetamine. (251) Defendant mailed a package containing 440.7 grams of DL-methamphetamine, with 30% purity, or 132.2 grams of pure DL-meth. The district court, adopting the view that DL-meth is a third “molecular form” of meth, based his offense level on 132.2 grams of “pure methamphetamine.” Defendant contended that DL-meth is not “pure meth” under the guidelines, but a mixture of 50% D-meth and 50% L-meth. The Tenth Circuit found that to make that determination, it needed expert testimony defining the chemical nature of methamphetamine. The case was remanded to determine, by expert testimony, the chemical nature of DL-methamphetamine–whether it is simply a mixture of D-meth and L-meth, or something else. U.S. v. Cook, 49 F.3d 663 (10th Cir. 1995).
10th Circuit says government established that defendant manufactured D-methamphetamine. (251) Defendant objected to the calculation of his sentence on the basis of the isomer dextro-methamphetamine (“D-meth”) rather than the less potent isomer levo-methamphetamine (“L-meth”). The 10th Circuit held that the government established by a preponderance of the evidence that defendant manufactured the more potent D-meth. The government introduced affidavits from two DEA forensic chemists that in their 26 years combined experience, they had never encountered a clandestine lab producing pure L-meth. One chemist stated that L-meth has little stimulating effect. A co-conspirator testified that the methamphetamine he obtained from defendant had a significant stimulating effect because he would stay up for two to three days. U.S. v. Lande, 40 F.3d 329 (10th Cir. 1994).
10th Circuit upholds refusal to apply LSD amendment retroactively. (251) After defendant was sentenced, the Sentencing Commission amended § 2D1.1(c) to specify that the weight of LSD is 0.4 milligrams per dose. Applying this amendment to defendant would have reduced his base offense level from 29 to 15. The 10th Circuit upheld the district court’s denial of defendant’s motion to reduce his sentence. Under § 1B1.10(d), a district court “may” consider a reduction of a defendant’s sentence pursuant to this amendment. The reduction is not mandatory but is committed to the sound discretion of the trial court. The district court decided that defendant did not merit the reduction due to his personal and offense characteristics. There was no abuse of discretion. U.S. v. Telman, 28 F.3d 94 (10th Cir. 1994).
10th Circuit does not apply amendment excluding weight of waste water where it would not affect base offense level. (251) Defendant argued that the district court should not have included in its sentencing calculations 1.8 liters of waste water containing some P2P and methamphetamine. Under an amendment to the commentary to § 2D1.1 effective after defendant was sentenced, waste water that cannot be readily separated from an illegal substance is not considered a mixture or substance. The 10th Circuit did not decide whether the amendment should be applied retroactively, since it would not affect defendant’s sentence. Even if the waste water were excluded from the calculations, defendant would still have a base offense level of 34. U.S. v. Deninno, 29 F.3d 572 (10th Cir. 1994).
10th Circuit says mandatory minimum precluded benefits of LSD guideline amendment. (251) Defendant pled guilty to distributing more than a gram of LSD. His guideline range was 59 to 73 months, and he received the mandatory minimum sentence of 60 months. That sentence was later reduced to 39 months as a result of the government’s Rule 35 motion. After § 2D1.1(c) was amended to standardize the weight of LSD, defendant moved for a further reduction of sentence. The 10th Circuit held that because defendant was subject to the mandatory minimum sentence at the time of sentencing, he was not entitled to the benefits of the amended LSD guideline. Under the amended guideline, defendant would have had a guideline range of 18 to 24 months. However, the mandatory minimum sentence was 60 months, and the later Rule 35 reduction defendant received did not waive the mandatory minimum provisions beyond the reduction the court granted. U.S. v. Mueller, 27 F.3d 494 (10th Cir. 1994).
10th Circuit says Chapman did not overrule cases requiring consideration of weight of unusable by-products. (251) Under 10th Circuit cases decided before Chapman v. U.S., 111 S.Ct. 1919 (1991), the weight of unusable waste by-products containing a detectable amount of P-2-P are to be included for sentencing purposes. Defendant argued that Chapman overruled these cases and adopted a market-oriented approach under which waste by-products should be excluded. The 10th Circuit rejected this argument, reaffirming that so long as a mixture or substance contains a detectable amount of a controlled substance, its entire weight, including waste by-products of the drug manufacturing process, may be properly included in defendant’s base offense level. The focus on Chapman’s reference to a “market-oriented” approach ignores other language in the opinion stating that Congress intended the penalties for drug trafficking to be based on the weight of drugs in whatever form they were found. U.S. v. Killion, 7 F.3d 927 (10th Cir. 1993).
10th Circuit says motion to exclude unusable water from methamphetamine weight abused writ. (251) After defendant’s first motion under 28 U.S.C. § 2255 was denied, defendant brought a second motion claiming the court should have excluded unusable water from the weight of the methamphetamine at sentencing. The district court granted the motion, but on appeal the 10th Circuit reversed, holding that the second motion was an abuse of the writ of habeas corpus. Defendant could not show cause for the failure to raise the claim earlier. The fact that others had not raised the issue first was not sufficient cause. Failure to consider his claim would not be a fundamental miscarriage of justice, since he was not innocent. Moreover, 10th Circuit cases have consistently held that the weight of waste products from the drug manufacturing process should be included in computing a defendant’s sentence. This was not changed by the Supreme Court’s decision in Chapman v. U.S. 111 S.Ct. 1919 (1991). U.S. v. Richards, 5 F.3d 1369 (10th Cir. 1993).
10th Circuit holds that weight of carrier medium is included with LSD, despite lack of “mixture” language. (251) In Chapman v. U.S., 500 U.S. 453, 111 S.Ct. 1919 (1991), the Supreme Court held that the weight of the carrier medium is included when calculating the weight of LSD. Chapman dealt with 21 U.S.C. § 841(b)(1)(A)(v) and (B)(v), which imposes minimum and maximum penalties based upon specified weights of a “mixture or substance” containing a detectable amount of LSD. Subparagraph (C) of § 841(b)(1) covers violations involving less than one gram of LSD, and does not contain the “mixture or substance” language. Defendant contended that this meant that the weight of the carrier medium could not be included in calculating his sentence. The 10th Circuit rejected this argument, since the sentencing guidelines apply the “mixture or substance” language to all quantities of LSD in determining base offense levels. Defendant was not “charged” or sentenced under § (b)(1)(C), he was charged with violating § 841(a)(1). He was sentenced under the guidelines, which according to the Supreme Court, require the carrier medium to be used in determining the weight of the LSD. U.S. v. Leazenby, 937 F.2d 496 (10th Cir. 1991).
10th Circuit upholds calculation of P-2-P based on entire weight of liquid containing drug. (251) The district court determined defendant’s base offense level by multiplying the 94 liters of liquid containing P-2-P found in defendant’s laboratory by the .375 cocaine equivalency formula contained in the guidelines. Defendant’s chemist testified that the most P-2-P that could be produced from the laboratory was 8.85 kilograms. Defendant argued that the correct weight in a manufacturing case should be the maximum amount of drugs that could be produced from the manufacturing process, and that the waste product should not be included. The 10th Circuit found that the district court had properly calculated the drug equivalency. A footnote to the drug quantity table in guideline § 2D1.1(c) states that the weight of a controlled substance refers to “the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” U.S. v. Dorrough, 927 F.2d 498 (10th Cir. 1991).
10th Circuit calculates amount of drugs based on total weight of mixture containing the drugs. (251) Defendant was arrested with 94 kilograms of a mixture containing various chemicals. When heated under proper conditions, the mixture produces P2P, a precursor of amphetamine. The actual amount of P2P present in the mixture was 2.95 kilograms. The 10th Circuit found that defendant was properly sentenced based upon 94 kilograms of P2P, rather than the 2.95 kilograms of actual P2P contained in the mixture. A footnote to guideline § 2D1.1 provides that for guideline purposes, the weight of a mixture containing a controlled substance is the entire amount of the mixture. U.S. v. Callihan, 915 F.2d 1462 (10th Cir. 1990).
10th Circuit rules that weight of blotter paper is to be used in calculating weight of LSD. (251) The 8th Circuit held that 21 U.S.C. § 841(b)(1)(v) requires that the weight of the blotter paper be included in determining the weight of LSD involved in a drug offense. Blotter paper is similar to a cutting agent because it makes the LSD ready for retail sale and ingestion by the user. The court also stated that the legislative history of 21 U.S.C. § 841 “reveals that Congress intended the result we reach here.” U.S. v. Bishop, 890 F.2d 212 (10th Cir. 1989).
11th Circuit finds inference that cash came from drug trafficking was not speculative. (251) During a search of defendant’s house, officers found $17,500 in cash, and a receipt showing that defendant had paid over $15,000 in cash for a car. The court found that there was no plausible source of income available to defendant apart from his admitted participation in a drug conspiracy and that he was the source of the methamphetamine (27.7 grams) involved in a controlled drug purchase. The district court inferred that the cash constituted proceeds from trafficking in meth, and found that the cash proceeds represented the sale of over 1000 grams of meth. The Eleventh Circuit upheld the court’s inference that defendant’s cash was derived from dealing in methamphetamine. Defendant admitted his involvement in the charged conspiracy, and the only remaining issue was the level or degree of his participation. He was found to have possessed large sums of currency with no apparent explanation of its origin, and there was evidence that he was one of the sources of the meth involved in the conspiracy. The court’s inference that the cash came from trafficking in methamphetamine was not speculative. U.S. v. Chavez, 584 F.3d 1354 (11th Cir. 2009).
11th Circuit finds that post-offense rehabilitation justifies sentence 128 months below guideline range. (251) At defendant’s sentencing for possession of pseudoephedrine, eight witnesses testified that he had undergone a religious conversion after his arrest on drug-trafficking charges, maintained steady employment, kicked his methamphetamine addiction, inspired other addicts to overcome their addiction, and visited a juvenile home to encourage young people to change their lives. The district court found that defendant’s post-offense rehabilitation was extraordinary and imposed a sentence of 60 months, instead of a sentence within the advisory guidelines range of 188-235 months. On the government’s appeal, the Eleventh Circuit held that the 60-month sentence was not unreasonable. It rejected the government’s contention that the district court impermissibly relied on defendant’s religion. It also held that although some of defendant’s post-offense conduct simply constituted compliance with his bail conditions, the district court had reasonably found that defendant’s post-offense rehabilitation showed that he posed less risk to the community and did not require lengthy incarceration. U.S. v. Clay, 483 F.3d 739 (11th Cir. 2007).
11th Circuit holds that increase for discharge of hazardous substance applies only to offenses involving statutes listed in guidelines. (251) Guideline § 2D1.1(b)(6)(A), redesignated as § 2D1.1(b)(8)(a) in 2006, provides for a two-level enhancement for offenses involving either (1) an unlawful discharge, emission, or release into the environment of a hazardous substance; or (2) the unlawful transportation, treatment, storage, or disposal of a hazardous waste. Application Note 19 states that the enhancement applies if the conduct for which the defendant is accountable under § 1B1.3 involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by four listed environmental statutes. Defendants were convicted of methamphetamine conspiracy and related charges, and the district court applied the enhancement based on their discharge of anhydrous ammonia. The Tenth Circuit held that the enhancement is limited to offenses that involve violations of the four federal environmental statutes listed in the guidelines. The enhancement applies to “unlawful” discharges. The government bears the burden of establishing by a preponderance of the evidence the facts necessary to support a sentencing enhancement, and so must establish the violation of the environmental statute. U.S. v. Kinard, 472 F.3d 1294 (11th Cir. 2006).
11th Circuit holds that court properly considered weight of methamphetamine and cutting agent. (251) Police recovered from defendant’s house 1.2 kilograms of a mixture containing a detectible amount of methamphetamine and dimethyl sulfone, a common cutting agent for methamphetamine. At issue was whether this mixture satisfied the legal definition of a “mixture” under 21 U.S.C. § 841(B)(1) (a)(viii). In Chapman v. U.S. 500 U.S. 453 (1991), the Supreme Court ruled that it is proper to include the weight of a cutting agent when determining the total weight of a “mixture or substance containing a detectable amount” of a particular drug. Defendant argued that the mixture was so diluted it would not be marketable or usable in the streets. Because the methamphetamine was mixed with a cutting agent, the Eleventh Circuit held that the district judge properly considered the combined weight of the cutting agent and the meth. Congress has made a policy decision that purity is not an element of § 841(b)(1)(A)(viii). Since the weight of the mixture exceeded the 500-gram threshold necessary to trigger the mandatory minimum, the district court’s ten-year sentence was correct. U.S. v. Segura-Baltazar, 448 F.3d 1281 (11th Cir. 2006).
11th Circuit holds that court need not identify specific minor placed at risk by meth lab. (251) Defendant was involved with a meth lab in a hotel room that caused a fire in the hotel at 1 a.m.. The fire caused other occupants of the hotel, including several minors, to evacuate their rooms. Guideline § 2D1.1(b)(5)(C) provides for a six-level sentencing enhancement when the offense involved the manufacture of methamphetamine and created a substantial risk of harm to the life of a minor. The court applied the § 2D1.1(b)(5)(C) increase, noting that the fire occurred at 1 a.m., an hour when hotel guests are likely to be in their rooms; several rooms were occupied by families with children; a youth group was staying at the hotel for a sports tournament; and a family with two young children had to be moved to a different room as a result of the fire. The court did not specifically identify the minors who were at risk of harm. The Eleventh Circuit held that the court’s findings supported the increase, and it was not required to specifically identity the minors placed at risk. A court must still make findings regarding the presence of minors, however, it is not require to identify a specific minor. The court made such a finding here when it found that minors were staying at the hotel and that the fire created a substantial risk of harm to at least some of these minors. U.S. v. Florence, 333 F.3d 1290 (11th Cir. 2003).
11th Circuit uses estimate of meth lab’s 100% theoretical yield. (251) A government expert testified that (1) the precursor chemicals and other items found at defendants’ lab were consistent with the Birch Reduction method of manufacturing methamphetamine, (2) this method of production reported yields in excess of 95%, and (3) assuming a 100% theoretical yield, the lab could have produced up to 25.6 grams of meth. The expert admitted that as conditions change from day to day, a meth lab will not produce the same actual yield, and agreed that such variations could vary greatly “from one percent up to 100 percent.” The Eleventh Circuit upheld the use of the 100% theoretical yield to estimate that defendant’s lab could have produced 25.6 grams of meth. A district court may base its estimate of actual meth yield upon an expert’s calculation of the 100% theoretical yield, at least where there is no evidence presented by the defendants to rebut such an estimate. See U.S. v. Ramsdale, 61 F.3d 825 (11th Cir. 1995). The district court did not improperly shift the burden of proof to defendants to prove the appropriate drug quantity. Rather, it was stating that defendants had failed to fulfill their burden of coming forward with rebuttal evidence concerning the circumstances of the operation and relative skill of the operators. U.S. v. Blaylock, 275 F.3d 1030 (11th Cir. 2001).
11th Circuit upholds use of most abundant precursor to determine drug quantity. (251) Police searching one conspirator’s house found a recipe and drawing of how to make methamphetamine, and various different chemicals necessary to make meth. A government expert testified that 2011 grams of meth could be made using the most abundant precursor chemical; 91 grams using the least abundant precursor. The Eleventh Circuit upheld the district court’s use of the most abundant precursor to determine drug quantity. “While the district court should be accurate and cautiously moderate in estimating drug quantity, the court is not required to disregard calculations based on the most abundant precursor in favor of a lesser abundant precursor.” Courts are permitted to estimate drug quantity based on available precursors when the other necessary ingredients are absent. Thus, a court may also estimate drug quantity based on the most abundant precursor when other precursors are present. U.S. v. Smith, 240 F.3d 927 (11th Cir. 2001).
11th Circuit finds no prejudice from counsel’s failure to challenge D-meth sentence. (251) Defendant was convicted of four methamphetamine-related counts. In a § 2255 motion, defendant claimed his counsel had been ineffective for failing to challenge the court’s use of the D-methamphetamine guideline to fashion his sentence. The Eleventh Circuit rejected the claim since defendant could not show prejudice from his attorney’s performance. To show prejudice, defendant must show that he could establish that the methamphetamine he possessed and distributed was the L-type. However, based on the evidence in the case and statements from several circuit courts, the Sentencing Commission and other government agencies, there was no doubt that D-methamphetamine was involved here. L methamphetamine is an inert form of methamphetamine with little or no physiological effects. It is rarely seen, is not made intentionally, and is utterly worthless. Defendant here distributed a form of methamphetamine that had street value. To reach a contrary conclusion would require a finding that defendant made a conscious decision to distribute a worthless substance. Reece v. U.S., 119 F.3d 1462 (11th Cir. 1997).
11th Circuit rejects using entire weight where 99% was sugar and only 1% cocaine. (251) Defendant was arrested carrying a package weighing 1014.4 grams, of which 10 grams were cocaine and the remainder was sugar. The Eleventh Circuit held that the contents of the package was not a mixture and that defendant should have been sentenced based on the ten grams of cocaine rather than the weight of the entire package. A government expert testified that the package was probably intended to be sold as a “rip-off,” and that the cocaine was in an area at the surface of the block so that an authentic sample could be given. The cocaine, as packaged, was not marketable, was not worth more than $100, and probably would not have been detectable if mixed with the sugar. Although sugar can be used as a cutting agent, here it was used to trick a purchaser into thinking it was cocaine. The sugar, which comprised over 99 percent of the weight of the contents of the package, could not have been used to cut the cocaine without rendering the resulting mixture unmarketable. U.S. v. Jackson, 115 F.3d 843 (11th Cir. 1997).
11th Circuit says earlier finding of quantity of usable cocaine from liquid was law of the case. (251) Defendant imported 4173 grams of liquefied cocaine into the U.S. The district court decided that defendant had imported 2036 grams of usable cocaine and sentenced defendant accordingly. Defendant did not challenge this conclusion on appeal. He later moved to reduce his sentence based on Amendment 484, which provides that a sentence should be based only on the quantity of drugs that could be “used.” He conceded that the procedure followed in the district court (weighing the liquid and noting its purity) would show the total amount of cocaine in the liquid, but argued that this method would not show how much cocaine could actually be extracted from the liquid and rendered usable. The Eleventh Circuit ruled that the district court had already determined the quantity of usable cocaine as required by Amendment 484, and that under the law of the case doctrine this determination was binding. Defendant had the opportunity to appeal the district court’s decision that he imported 2036 grams of usable cocaine but did not. U.S. v. Escobar-Urrego, 110 F.3d 1556 (11th Cir. 1997).
11th Circuit holds that entire weight of LSD carrier medium must be considered for mandatory minimum purposes. (251) Defendant pled guilty to LSD charges, and was subject to a mandatory minimum 10-year sentence based on a combined weight of LSD and carrier medium that exceeded 10 grams. He only received a 78-month sentence because the court granted the government’s request for a substantial assistance departure. Defendant later petitioned the court to reduce his term of imprisonment under guideline Amendment 488, which equates each dose of LSD on a carrier medium as equal to 0.4 mg of LSD. The Eleventh Circuit, following the majority of circuits and an unpublished opinion in its own circuit, held that Amendment 488 does not apply for mandatory minimum purposes. The court acknowledged circuit precedent that suggests that a guideline amendment can affect a prior statutory interpretation. However, the last sentence of the amendment suggests that the Commission did not intend for the amendment to alter the method of weighing LSD for mandatory minimum purposes. U.S. v. Pope, 58 F.3d 1567 (11th Cir. 1995).
11th Circuit excludes weight of discarded by-product in methamphetamine manufacturing case. (251) Under section 2D1.1(c), the weight of a controlled substance refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. In U.S. v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir. 1991), the 11th Circuit held that the term “mixture” in section 2D1.1 does not include unusable mixtures. Here, the 11th Circuit held that under Rolande-Gabriel, unusable and discarded “sludge” from the methamphetamine manufacturing process should not be considered at sentencing. The sludge in question was toxic and unusable. It makes no sense to sentence defendants based on the weight of materials that would never find their way to methamphetamine consumers. U.S. v. Newsome, 998 F.2d 1571 (11th Cir. 1993).
11th Circuit vacates sentence based upon total weight of cocaine and wine mixture. (251) Defendants transported into the United States eight wine bottles containing wine, lactose and cocaine. The district court imposed sentences based on the total weight of the cocaine and the wine in which it was transported. Following U.S. v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir. 1991), the 11th Circuit reversed. The wine was merely a medium for transporting the cocaine, and the cocaine/wine mixture was not in a state to be consumed by the ultimate user. Thus, the wine was like “packaging material.” The sentencing court should have excluded the commercially unusable portions of the mixture containing cocaine. U.S. v. Bristol, 964 F.2d 1088 (11th Cir. 1992).
11th Circuit holds that weight of unusable liquid should not be included in weight of drugs. (251) Defendant possessed 241.6 grams of a liquid substance from which a chemist extracted 72.2 grams of a powder comprised of 7.2 grams of cocaine base and 65 grams of a cutting agent. The 11th Circuit held that weight of the liquid carrier medium was improperly included in the weight of the drugs under guideline § 2D1.1. Prior Circuit cases seeming to hold to the contrary were inapplicable because they dealt with drug mixtures that were in usable forms, “i.e. usable by or marketable to the consumer.” In this case, the drug was in an unusable mixture. The Supreme Court’s recent decision in U.S. v. Chapman, 111 S.Ct. 1919 (1991) was also not controlling because the LSD/blotter paper mixture considered by the Court was “usable, consumable, and ready for wholesale or retail distribution.” The liquid waste in this case was similar to packaging materials. The cocaine mixture was “easily distinguished from, and separated from” its liquid carrier waste medium. U.S. v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir. 1991).
11th Circuit upholds calculation of amount of pharmaceutical drugs based on gross weight. (251) Defendant, a pharmacist, pled guilty to distributing controlled substances. He argued that the district court erred in using the gross weight of the drugs sold rather than the net weight, or dosage weight, to compute the heroin equivalency. The 11th Circuit found that the drug quantity table unambiguously requires gross weight of the drugs to be used in calculating the heroin equivalency, even for pharmaceutical drugs. The reference to the Anti-Drug Abuse Act did not create an ambiguity. Moreover, even if it did, the Act does not reflect a Congressional intent to treat pharmaceutical drugs differently from street drugs. U.S. v. Lazarchik, 924 F.2d 211 (11th Cir. 1991).
D.C. Circuit rules dilaudid is a “mixture or substance” containing hydromorphone. (251) Dilaudid is the brand name of a pharmaceutically manufactured drug, the active ingredient of which is hydromorphone, a controlled substance. Defendants pled guilty to drug offenses involving dilaudid pills. They contended their sentences should have been calculated according to the net weight of the hydromorphone, rather than the gross weight of the dilaudid. The D.C. Circuit held that under guideline § 2D1.1, dilaudid is a “mixture or substance” containing hydromorphone. The court refused to adopt a definition of the term “mixture or substance” since the Supreme Court was expected to decide this issue soon. However, under the two tests adopted by the federal courts to date, dilaudid qualified as a mixture or substance: one cannot pick a grain of hydromorphone off the surface of a dilaudid tablet, and hydromorphone is more or less evenly diffused throughout a dilaudid tablet. U.S. v. Shabazz, 933 F.2d 1029 (D.C. Cir. 1991).
D.C. Circuit holds that sentence based on gross weight of drug did not violate 21 U.S.C. § 841(b)(1)(C). (251) Defendants pled guilty to drug offenses involving dilaudid pills, the active ingredient of which is hydromorphone, a controlled substance. They contended that sentencing them under guideline § 2D1.1 based on the total weight of the dilaudid, rather than the net weight of the hydromorphone violated 21 U.S.C. § 841(b)(1)(C). The D.C. Circuit rejected this reasoning, refusing to divine a Congressional intent that the total weight of the mixture or substance was irrelevant for all but the eight controlled substances specifically listed in the statute. The Sentencing Commission did not act unreasonably in refusing to treat hydromorphone differently. The court also rejected defendants’ argument that application note 11 to guideline § 2D1.1 prohibited sentencing them according to the total weight. Note 11 provides guidance on how to determine the weight of controlled substances for sentencing purposes if the weight of the controlled substance is unknown. The weight of the dilaudid was known, even though each pill was not weighed. U.S. v. Shabazz, 933 F.2d 1029 (D.C. Cir. 1991).
D.C. district court holds that weight of LSD does not include weight of blotter paper. (251) The defendant sold LSD in the form of liquid impregnated into 5,000 squares of blotter paper. The user was expected to place a square in the mouth and eventually swallow the paper along with the drug. Rejecting decisions from other circuits, district judge Gesell held that the weight of the blotter paper should not be included in calculating the guideline sentence for LSD. The court ruled that impregnated blotter paper is not a “mixture or substance” within the meaning of 21 U.S.C. § 841. U.S. v. Healy, 729 F.Supp. 140 (D.D.C. 1990).
Illinois and Iowa District Courts find relevant weight of LSD includes the weight of the distribution medium. (251) In determining the weight of LSD involved in a drug offense, both 21 U.S.C. § 841(b)(1)(A)(iv) and the dosage equivalency tables of guideline § 2D1.1 require that the weight of the distribution medium (blotter paper) be included. U.S. v. Bishop, 704 F.Supp. 910 (N.D. Iowa 1989); U.S. v. Marshall, 706 F.Supp. 650 (C.D. Ill. 1989).
Commission increases penalties for meth and date-rape drugs. (251) Section 731 of the PATRIOT Reauthorization Act created a new offense at 21 U.S.C. § 865, with a mandatory consecutive sentence of 15 years for smuggling methamphetamine or its precursor chemicals into the United States by a person enrolled in, or acting on behalf of someone or some entity enrolled in, any dedicated commuter lane, alternative or accelerated inspection system, or other facilitated entry program administered by the federal government for use in entering the United States. In response, the Commission referred the new offense to both §§ 2D1.1 and 2D1.11 and provided a new two-level enhancement in §§ 2D1.1(b)(5) and 2D1.11(b)(5) if the defendant is convicted under 21 U.S.C. § 865. Also, in response to a new offense in 21 U.S.C. § 841(g) (Internet Sales of Date Rape Drugs), the Commission provided a new two-level enhancement in § 2D1.1(b)(9) that is tailored to focus on the more serious conduct covered by the new statute. The Commission also eliminated the maximum base offense level of level 20 for ketamine offenses under 21 U.S.C. § 841(g). The amendment also provides a marihuana equivalency in Application Note 10 for ketamine (1 unit of ketamine = 1 gram of marihuana). In addition, the amendment adds to § 2D1.1, Application Note 10, a new drug equivalency for 1,4-butanediol (BD) and gamma butyrolactone (GBL), both of which are included in the definition of date rape drugs under 21 U.S.C. § 841(g). The amendment also addresses the new offense in 21 U.S.C. § 860a (Consecutive sentence for manufacturing or distributing, or possessing with intent to manufacture or distribute, methamphetamine on premises where children are present or reside). Amendment 705, effective November 1, 2007
Commission adds six levels for stealing or transporting stolen anhydrous ammonia. (251) A widely used source of nitrogen fertilizer for crops, anhydrous ammonia, also is used in the manufacture of methamphetamine. It must be stored and handled under high pressure, which requires specially designed and well-maintained equipment. Methamphetamine manufacturers often obtain anhydrous ammonia by siphoning large-volume tanks at fertilizer plants and farms and rarely have the knowledge or equipment required to properly handle it. The Commission explained that the new six-level enhancement at § 2D1.12 is intended to account for the inherent dangers created by such conduct, as well as the likely intended unlawful use. Amendment 667, effective November 1, 2004.
Commission updates statutory references for guideline dealing with listed chemicals. (251) The Commission updated the statutory references in § 2D1.11(b)(2) and accompanying commentary to conform to statutory designations of certain offenses, and also expanded application of § 2D1.11(b)(2) to include 21 U.S.C. § 960(d)(3) and (d)(4) among the statutes of conviction for which the three-level reduction at subsection (b)(2) is available. The amendment also added white phosphorus and hypophosphorous acid to the chemical quantity table in § 2D1.11(e). Both substances are List I chemicals that can be substituted for red phosphorous in the manufacture of methamphetamine. Amendment 667, effective November 1, 2004.
Commission updates statutory references for guideline dealing with listed chemicals. (251) The Commission updated the statutory references in § 2D1.11(b)(2) and accompanying commentary to conform to statutory designations of certain offenses, and also expanded application of § 2D1.11(b)(2) to include 21 U.S.C. § 960(d)(3) and (d)(4) among the statutes of conviction for which the three-level reduction at subsection (b)(2) is available. The amendment also added white phosphorus and hypophosphorous acid to the chemical quantity table in § 2D1.11(e). Both substances are List I chemicals that can be substituted for red phosphorous in the manufacture of methamphetamine. Amendment 667, effective November 1, 2004.
Commission makes penalties for amphetamine offenses comparable to methamphetamine. (251) Implementing the directive in the Methamphetamine Anti-Proliferation Act of 2000, the Commission adopted an emergency amendment effective May 1, 2001, increasing the penalties for amphetamine offenses to make them comparable to the base offense level for methamphetamine offenses. The Commission also proposed to make the emergency amendment permanent with modifications amending § 2D1.1 (b)(4) to make the enhancement for the importation of methamphetamine applicable to amphetamine offenses as well, and to make a conforming change in the commentary to § 2D1.1 in Application Note 19. May 1, 2001 Amendment 610, modified by Amendment 622, effective November 1, 2001.
Commission repromulgates emergency methamphetamine guideline with modifications. (251) Effective December 16, 2000, the Commission adopted an emergency amendment providing for a three-level increase and a minimum offense level of 27 for manufacturing amphetamine or methamphetamine if the defendant created a substantial risk of harm either to human life or the environment. This is increased to six levels if the risk was to a minor or an incompetent. In repromulgating this as a permanent amendment, the Commission made the two-level increase in § 2D1.1(b)(5) an alternative to the three levels for substantial risk of harm to human life or the environment. The emergency amendment also made the enhancements cumulative, and lists four factors in § 2D1.1 that the court “shall” consider in determining whether subsection (b)(6)(A) or (B) applies. A similar change is made to § 2D1.10. Finally, the amendment requires the court to consider any costs of environmental cleanup and harm to individuals and property in determining the amount of restitution, and in fashioning conditions of probation and supervised release. December 16, 2000 Amendment 608, modified by Amendment 620, effective November 1, 2001.
Commission increases guidelines for manufacturing amphetamine and methamphetamine. (251) Effective Dec. 16, 2000, the Sentencing Commission amended guideline § 2D1.1 to provide a three-level increase or “floor” of offense level 27 if the offense involved the manufacture of amphetamine or methamphetamine and created a substantial risk of harm to human life or the environment. The amendment also provides a 6-level increase if the risk was to the life of a minor or an incompetent. Moreover, guideline § 2D1.10 was amended to provide even greater guideline increases where the defendant is convicted under 21 U.S.C. § 858 of endangering human life while illegally manufacturing amphetamine or methamphetamine. The amendments also apply to attempts and conspiracies. A new Application Note 21 to § 2D1.1 and Application Note 1 to § 2D1.10 set out the factors to be considered in applying these increases, and also define “incompetent” and “minor.” The amendments were adopted in response to directives in the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. No. 106-310, Title 36, § 3612. The new amendment also corrects a typographical error in the Drug Quantity Table, changing the quantity for methamphetamine (actual) from kilograms to grams at offense level 36 in the Table. Amendment 608, effective December 16, 2000.
Commission seeks comment on proposed increase for trafficking in List I chemicals. (251) The proposed amendment addresses a three-part directive in the Methamphetamine Anti-Proliferation Act of 2000, § 3651 of Pub. L. 106-310, regarding enhanced punishment for trafficking in List I chemicals. First, the directive instructs the Commission to provide increased penalties for offenses involving ephedrine, EPA, or pseudoephedrine. The proposed amendment provides a new chemical table specifically for ephedrine, pseudoephedrine and PPA, tying the base offense level for these chemicals to the base offense levels for methamphetamine (actual) in § 2D1.1, assuming a 50% yield of the controlled substance from the chemicals. Second, the proposed amendment adds a conversion table for ephedrine, PPA and pseudoephedrine in the Drug Equivalency Tables in § 2D1.1. Third, the proposed amendment increases the base offense level for five additional List I chemicals associated with methamphetamine and amphetamine production. 2001 Proposed Amendment 3.
Commission proposes new guideline for anhydrous ammonia used to make methamphetamine. (251) The proposed amendment addresses the new offense, 21 U.S.C. § 864, of stealing or transporting across state lines anhydrous ammonia knowing, intending, or having reasonable cause to believe that it will be used to manufacture a controlled substance. The proposed amendment makes the applicable guideline § 2D1.12 (Unlawful Possession, Manufacture, Distribution, or Importation of Prohibited Flask or Equipment; Attempt or Conspiracy). The Commission says this guideline is appropriate because the new offense is similar to other offenses covered by § 2D1.12 and having the same penalty structure, such as 21 U.S.C. § 843(a)(6), which among other things makes it unlawful to possess any chemical, product, or material which may be used to manufacture a controlled substance. 2001 Proposed Amendment 10.
Commission increases methamphetamine trafficking penalties (251) Responding to directives in sections 301 and 303 of the Comprehensive Methamphetamine Control Act of 1996, Pub. L. 104-237, 110 Stat. 3099, the Commission increased the penalties for methamphetamine trafficking offenses. This penalty increase was accomplished by reducing by one-half the quantity of a mixture or substance containing methamphetamine corresponding to each offense level in the Drug Quantity Table. This part of the amendment makes no change, however, in the quantities of methamphetamine (actual) (i.e., “pure” methamphetamine) and “Ice” methamphetamine that correspond to the various offense levels. Second, in response to the directive in section 303 of the Act, the Commission provided an enhancement of two levels, with an invited upward departure in more extreme cases, for environmental violations associated with illicit manufacturing. Third, in response to recent increases in the importation of methamphetamine and precursor chemicals, the Commission provides an enhancement of two levels directed at such activity. An exception is provided for defendants who have a mitigating role in the offense. Amendment 555, effective November 1, 1997.
Note advocates excluding uningestible materials from weight of controlled substance. (251). A student author examines the circuit conflict over whether the weight of an uningestible or unmarketable carrier medium containing a detectable amount of a controlled substance should be included in the weight of a “mixture or substance.” He concludes that the weight of uningestible materials should not be considered at sentencing because it leads to disparate sentencing of similarly situated offenders. The author also suggests that the 1993 guideline amendments will not fully resolve this conflict because of ambiguous language in the definition of “mixture or substance.” Note, Federal Sentencing Guidelines: What is the Fair Interpretation of “Mixture or Substance?” 14 Pace L. Rev. 301-38 (1994).
Commission deletes distinction between D- and L-methamphetamine. (251) In Amendment 517, effective November 1, 1995, the Commission deleted the distinction between D- and L-methamphetamine in the Drug Equivalency Tables in the commentary to §2D1.1. The Commission noted that the listing of L-methamphetamine as a separate form of methamphetamine had led to litigation as to how DL- methamphetamine should be treated. Under this amendment, all forms of methamphetamine are treated alike.
Commission makes “mixture or substance” amendment and LSD amendment retroactive. (251) A November 1, 1993 amendment resolved an intercircuit conflict over the meaning of the term “mixture or substance” as used in section 2D1.1. The amendment provides that the term does not include portions of a drug mixture that must be separated from the controlled substance before the controlled substance can be used. The Sentencing Commission made this amendment retroactive under section 1B1.10. It also made retroactive the November 1, 1993 amendment to the LSD guideline, changing the calculation of offense levels for LSD on a carrier medium.
Commission changes terms “pure PCP” and “Pure Methamphetamine” to “PCP (actual)” and “Methamphetamine (actual).” (251) The November 1, 1991 amendment to section 2D1.1 substituted the term “actual” for the term “pure” when referring to the weight of the controlled substance itself contained in the mixture or substance. Further, the Drug Equivalency Table in Application Note 10 was amended by deleting all conversions to heroin, cocaine, or PCP and inserting in lieu thereof the appropriate conversion to marihuana.
Commission clarifies “mixture or substance” language. (251) In an amendment effective November 1, 1993, the Sentencing Commission amended the application notes to section 2D1.1 to resolve an inter-circuit conflict regarding the meaning of the term “mixture or substance.” The Commission clarified that the term does not include “materials that must be separated from the controlled substance before the controlled substance can be used,” such as “cocaine/fiberglass suitcases,” “cocaine/ beeswax statues,” and “wastewater from an illicit laboratory.”
Commission revises LSD guideline after Chapman. (251) In Chapman v. U.S., 111 S.Ct. 1919 (1991), the Supreme Court held that the term “mixture or substance” in 21 U.S.C. 841(b)(1) includes the carrier medium in which the LSD is absorbed. Nevertheless, the Commission noted that weights of carrier media vary widely and cause disparity in sentencing. Accordingly, in an amendment effective November 1, 1993, the Commission amended the notes following the Drug Quantity table to state, “[i]n the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD.” Despite this amendment, the Commission noted that for purposes of computing the amount of LSD for statutory mandatory minimum sentences, Chapman still controls.
Article explores meaning of “mixture.” (251) A student author argues that the Supreme Court’s decision in Chapman v. U.S., 111 S. Ct. 1919 (1991), yields a three-prong test for determining whether a substance is properly included in calculating the total weight of a “mixture” for purposes of the drug quantity table. First, does the alleged mixture meet the dictionary definition of the term? Second, is it ingestible? And third, will the alleged mixture reach the user market in its present form? This test remains important notwithstanding revisions to the guidelines. For example, the third prong would exclude consideration of the weight of alcohol in a cocaine-alcohol mixture though guideline amendments do not make that result clear. Note, Sifting Through the “Mixture” Problem to Determine a Drug Offender’s Sentence, 15 Western New England L. Rev. 395-423 (1993).