§252 Drug Offenses LSD, Ecstasy, PCP, Pills, Etc.
Commission increases penalties for fentanyl, cathinones and synthetic cannabinoids (“bath salts”). (240) (252) After a multi-year study, the Commission added a new specific offense characteristic at §2D1.1(b)(13) to provide a 4-level increase for knowingly misrepresenting as another substance a substance containing fentanyl or a fentanyl analogue. The Commission set the marijuana equivalency for fentanyl at 1:2,500, and fentanyl analogues at 1:10,000. The Commission also added synthetic cathinones to the Drug Equivalency Tables, and made one gram of a synthetic cathinone (except a Schedule III, IV, or V substance) equal to 380 grams of marihuana, with a base offense level of 12. Proposed Amendment 3, effective Nov. 1, 2018.
6th Circuit upholds “conservative” estimate of pills involved in trafficking ring. (252)(254) Defendant was part of a trafficking ring that ran opiate pills from Detroit to Tennessee. Defendant collected pills in Detroit, and recruited O’Neal to live in a Detroit stash house. The group shipped pills to Buchanan in Tennessee. The Sixth Circuit rejected defendant’s argument, raised for the first time on appeal, that the district court failed to explain the amount of drugs for which it held him accountable. The PSR attributed to defendant 110 oxycodone pills and 2 oxymorphone pills, drawn from Buchanan’s statement that, for years, he bought 50 to 60 pills at a time from defendant and that the latter was his main source of supply for oxycodone. The report attributed another 186,300 oxycodone pills to defendant, drawn from O’Neal’s statement that she mainly received oxycodone pills, about 300 every day from July 2014 to March 12, 2015. The probation officer conservatively started counting on the last day of July and assumed all of the pills were oxycodone, which carries a lower penalty than oxymorphone. There was no plain error. U.S. v. Bradley, __ F.3d __ (6th Cir. Aug. 1, 2018) No. 17-5725.
6th Circuit requires court to follow correct drug weighing despite mistake with earlier defendants. (252)(716) Defendant was part of a trafficking ring that ran opiate pills from Detroit to Tennessee. Initially, the U.S. Attorney’s office mistakenly measured the weight of oxymorphone and oxycodone by the weight of the active ingredients in the pills, even though the guidelines measure oxymorphone by total weight. U.S.S.G. § 2D1.1(c), note (A)-(B). The U.S. Attorney’s Office realized the error before defendant pleaded guilty and notified him and his co-defendants about the new and proper weighing of the drugs. Defendant contended that the district court should have considered the sentence disparities between the defendants whose sentences preceded the U.S. Attorney’s Office’s change in drug-weight-calculation method and those who followed it. The Sixth Circuit rejected the argument. Once the government realized its mistake, the guidelines did not permit it to weigh oxymorphone in the old manner. This was not the kind of disparity that § 3553(a)(6) addressed. There is nothing “unwarranted” about correct sentencing calculations. U.S. v. Bradley, __ F.3d __ (6th Cir. Aug. 1, 2018) No. 17-5725.
8th Circuit holds defendant accountable for pills from other transactions by pill mill. (252)(275) Defendant, a registered nurse, was convicted of conspiracy charges based on her involvement in a “pill mill” conducted under the guise of a legitimate clinic. From nearly the time she was hired until the clinic closed, defendant was the only employee present on a daily basis who was licensed to write prescriptions for hydrocodone and Xanaxx. The district court’s drug quantity calculations included a number of pills directly attributable to defendant, as well as pills from other transactions by the pill mill. The Eighth Circuit found that the record amply provided a basis for the district court’s calculation. The jury found beyond a reasonable doubt that defendant had knowledge of the conspiracy. Given the “pill mill” nature of the conspiracy, the drug quantities involved were reasonably foreseeable to defendant. U.S. v. King, __ F.3d __ (8th Cir. Aug. 2, 2018) No. 17-1140.
D.C. Circuit upholds method used to calculate PCP weight. (252) Defendant pled guilty to distributing a mixture or substance containing phencyclidine (PCP). At sentencing, the district court heard testimony from Metropolitan Police Department (MPD) officers who processed the PCP that defendant sold. The officers introduced photos showing that after they seized multiple vials containing clear liquid in defendant’s possession, they field tested each vial for PCP. Then, the officer calibrated a scale, combined all of the liquid PCP into a beaker, and weighed the aggregate PCP. Next, the officer removed a one-ounce sample from the aggregated liquid PCP in the beaker, packaged it, and sent it to the DEA’s Mid-Atlantic lab for testing. The officer used this same methodology to process the vials from both the first and second drug sales. The district court credited this testimony and evidence in upholding MPD procedures. Defendant argued on appeal that that the district court erred in calculating the drug weight, and that MPD’s testing procedures were not authorized by 28 CFR §50.21. The D.C. Circuit found no error. MPD’s drug processing procedures did not need to be authorized by any federal regulations to provide valid, satisfactory proof of drug quantity. U.S. v. Mack, 841 F.3d 514 (D.C. Cir. 2016).
1st Circuit upholds court’s “conservative” estimate of oxycodone attributable to defendant. (252) Defendant pled guilty to conspiring to distribute oxycodone. His PSR calculated a base offense level at 32 based on his distribution of about 200 30-milligram oxycodone pills per week for 18 months. At sentencing, the district court rejected his request to trim the time frame from 18 to 12 months, citing defendant’s admission that he had been purchasing oxycodone for about two years. The court took into account defendant’s personal use of oxycodone by reducing his base offense level from 32 to 30. The First Circuit upheld the district court’s calculation of the oxycodone attributable to defendant. The court focused in on defendant’s own purchases, and limited its consideration to sales made by defendant himself. As for the length of the conspiracy, the court supportably chose to give credence to defendant’s own estimate of the period of his involvement. Ultimately, the court held defendant responsible for less than half of the amount sought by the government. The court’s drug quantity determination was conservative and not clearly erroneous. U.S. v. Demers, 842 F.3d 8 (1st Cir. 2016).
1st Circuit holds that oxycodone sentence at bottom of guideline range was reasonable. (252)(742) Defendant pled guilty to conspiring to distribute oxycodone. The district court calculated a guideline range of 57-71 months, and imposed a 57-month sentence, rejecting defendant’s request for a downward variance. The First Circuit upheld the sentence as reasonable, finding the district court articulated a plausible rationale for the sentence. The court noted that it had adjusted defendant’s base offense level downward, and stated that “[t]he [oxycodone] quantities involved in this case are simply too great to justify [both] the total offense level adjustment made by the Court and a substantial variance.” The sentence was at the bottom of defendant’s guideline range. Although a co-defendant received a sentence six months shorter than defendant, she received a one-level departure under §5H1.6 based on her family ties and responsibilities, a departure that defendant did not seek and for which he was not eligible. U.S. v. Demers, 842 F.3d 8 (1st Cir. 2016).
5th Circuit agrees that THC was “most closely related controlled substance” to AM-2201. (252)(770) Defendants plead guilty to conspiracy to distribute AM–2201, a controlled substance analogue. Because AM–2201 was not listed in the Drug Quantity Table or the Drug Equivalency Table, the court had to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance” to AM–2201. The Fifth Circuit upheld the district court’s conclusion that THC was the most closely related. The district court gave this matter “studied attention.” It held a day-long evidentiary hearing during which two experts testified at length. Both sides presented scientific evidence and cross-examined the other side’s expert, and the district court issued a well-reasoned oral decision. U.S. v. Malone, __ F.3d __ (5th Cir. July 6, 2016) No. 14-31426, superseding and replacing U.S. v. Malone, 809 F.3d 251 (8th Cir. 2015).
5th Circuit rejects Kimbrough claim where district court acknowledged discretion to vary. (252)(740) Defendants plead guilty to conspiracy to distribute AM–2201, a controlled substance analogue. The district court ruled that THC was the “most closely related controlled substance” to AM–2201, resulting in the use of a 1:167 ratio to convert THC into marijuana. Defendants pointed to contradictory statements made by the district court to argue on appeal that the court did not recognize its discretion under Kimbrough v. U.S., 552 U.S. 85 (2007) to vary from the 1:167 ratio for converting THC into marijuana. The Fifth Circuit initially agreed that the record was unclear as to whether the court properly understood its discretion under Kimbrough, but found any error was harmless. Nevertheless, the panel granted a limited remand to allow the district court to clarify its comments. At a non-evidentiary hearing, the court issued an oral ruling acknowledging that it had the discretion to vary from the 1:167 ratio under Kimbrough, but declined to do so. The panel then withdrew its harmless error analysis and reaffirmed its rejection of defendant’s Kimbrough claim. U.S. v. Malone, __ F.3d __ (5th Cir. July 6, 2016) No. 14-31426, superseding and replacing U.S. v. Malone, 809 F.3d 251 (8th Cir. 2015).
8th Circuit upholds use of 1:167 THC to marijuana ratio for synthetic cannabinoids. (252) Defendant was the owner and operator of a head shop that sold synthetic drugs. Based on expert testimony, the court determined that the synthetic cannabinoids that defendant distributed were “most closely related” to THC. The court then applied the 1:167 conversion ratio from the drug equivalency tables in the guidelines. See U.S.S.G. § 2D1.1, Notes 6 & 8(D). The Eighth Circuit found no error. Although defendant argued that the 1:167 ratio lacked scientific support because recreational marijuana contains a higher level of THC than the guideline ratio assumed, a sentencing court may use guideline commentary “as a tool for calculating the base offense level.” The district court did not err by relying on the guideline commentary from § 2D1.1 to apply a 1:167 THC to marijuana conversion ratio. U.S. v. Carlson, __ F.3d __ (8th Cir. Jan. 14, 2016) No. 14-2986.
5th Circuit finds THC was “most closely related controlled substance” to AM-2201. (252)(770) Defendants plead guilty to conspiracy to distribute AM–2201, a controlled substance analogue. Because AM–2201 was not listed in either the Drug Quantity Table or the Drug Equivalency Tables, the court had to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance” to AM–2201. The district court ruled that THC was the “most closely related controlled substance.” Defendants challenged this finding on appeal, criticizing the animal studies cited by the government expert as unreliable and incapable of providing meaningful insight into the effects of AM–2201 on human users. The Fifth Circuit affirmed. The animal studies were “reasonably reliable,” and thus admissible at sentencing. The panel also upheld the district court’s conclusion that THC was the “most closely related controlled substance” to AM–2201. The district court gave this matter “studied attention.” It held a day-long evidentiary hearing during which two experts testified at length. Both sides presented scientific evidence and cross-examined the other side’s expert. After carefully considering all of this evidence, the district court issued a well-reasoned oral decision. Nothing in the record left the panel with “the definite and firm conviction that a mistake has been committed.” U.S. v. Malone, __ F.3d __ (5th Cir. Dec. 11, 2015) No. 14-31426.
5th Circuit affirms even though unclear that court understood discretion to vary from marijuana ratio. (252)(742) Defendants plead guilty to conspiracy to distribute AM–2201, a controlled substance analogue. The district court ruled that THC was the “most closely related controlled substance” to AM–2201, resulting in the use of a 1:167 ratio to convert THC into marijuana. Defendants argued on appeal that the court did not recognize its discretion under Kimbrough v. U.S. to vary from the 1:167 ratio. The Fifth Circuit agreed that the record was unclear on this issue, but found any error harmless. There was nothing in the record to indicate that the district court was inclined to vary from the 1:167 ratio or pronounce a lesser sentence. The court did not suggest that it was “hamstrung” by its lack of discretion, or say that it was “troubled” by defendants’ sentences. To the contrary, the district court repeatedly commented on the “seriousness of the offense” and declined to accept the extent of the government’s recommended § 5K1.1 departures. The district court also explicitly endorsed the 1:167 ratio on at least two occasions, commenting both times that it was designed to capture the “relative harm” of THC as compared to marijuana. U.S. v. Malone, __ F.3d __ (5th Cir. Dec. 11, 2015) No. 14-31426.
11th Circuit holds doctor in “pill mill” accountable for all drugs he prescribed. (252)(270) Defendant, a doctor, was convicted of conspiracy to dispense controlled substances and related charges based on his involvement in a pill-mill scheme operated out of the East Health Center. Based on the drug amounts prescribed by defendant in East Health Center’s records, the district court held defendant accountable for all of the hydrocodone, oxycodone, and Xanax that he personally prescribed while he was at the Center. The Eleventh Circuit upheld this drug quantity determination. Defendant’s argument that there was no “reliable evidence as to what portion of the relevant prescriptions were legitimately used to treat pain” was not supported by the record. The trial evidence showed that East Health Center was a pill mill that did not serve a legitimate medical purpose. It was a cash-based pill mill for pill-seeking addicts, mostly from out-of-state. Abundant evidence showed that defendant was aware of its illegitimacy. The fact that he reduced some patients’ prescriptions did not establish that he was treating those patients for medical purposes. Rather, his statements suggested that he reduced the prescriptions to protect himself from legal scrutiny. U.S. v. Azmat, 805 F.3d 1018 (11th Cir. 2015).
Commission sets hydrocodone’s marihuana equivalency at 6,700 to 1. (252) The Drug Enforcement Administration recently moved hydrocodone from Schedule III to the more restrictive Schedule II. Accordingly, the Commission recognized that the treatment of hydrocodone as a Schedule III Substance in the Drug Equivalency Table in Application Note 8(D) was obsolete. In addition, the Commission noted that new pharmaceuticals contain higher concentrations of hydrocodone. Accordingly, the Commission moved hydrocodone from the Drug Equivalency Table to the Drug Quantity Table with a marihuana equivalency of 1 gram of hydrocodone equal to 6,700 grams of marijuana—the same as oxycodone. Proposed Amendment 4, effective November 1, 2015.
1st Circuit finds tying marijuana equivalency to actual oxycodone in pill is rational. (252) Defendant was convicted of possessing and distributing oxycodone. He argued that the marijuana equivalent for oxycodone, as amended by Amendment 657, was irrationally high. The amendment changed the marijuana equivalency from 500 grams per gram of pill weight, regardless of the amount of oxycodone contained in each pill, to 6,700 grams per gram of actual oxycodone. The First Circuit held that the Sentencing Commission had a rational basis for the amendment, and therefore, any equal protection claim by defendant failed. The amendment was intended to address “propotionality issues” that arose under the pre-amendment version, under which pills containing greatly differing amounts of actual oxycodone had the same marijuana equivalence. It was not irrational for the Commission to set higher marijuana equivalencies, and thereby increased punishment, for offenses involving higher amounts of oxycodone. U.S. v. Eksala, 596 F.3d 74 (1st Cir. 2010).
1st Circuit affirms estimate of methamphetamine production based on amount of pseudoephedrine seized. (252) The 1st Circuit affirmed the district court’s estimation that defendants were responsible for 10 to 30 kilograms of methamphetamine based upon the seizure of a laboratory with a 50 kilogram drum of pseudoephedrine. The district court reasonably concluded that quantity of methamphetamine seized did not reflect the scale of the offense in view of the equipment in the lab and storage facility, the quantities of precursor chemicals, and one defendant’s admission that his “chemist” had ingredients to produce 40 pounds of methamphetamine. The fact that the 50-kilograms drum of pseudoephedrine only contained 23 kilograms when it was seized did not affect the calculation, since a DEA chemist testified that the 23 kilograms would have produced 13 kilograms of methamphetamine, a quantity sufficient to warrant the same base offense level. The court had before it defendant’s chemical list, reflecting chemical quantities sufficient to produce at least 29 kilograms of methamphetamine. U.S. v. Barnett, 989 F.2d 546 (1st Cir. 1993).
2nd Circuit requires evidentiary hearing to determine composition of pills. (252) About 23,000 blue and white pills were found in defendant’s possession. A DEA lab found that the pills were comprised of NBenzylpiperazine (BZP), along with an “unmeasurable” amount of methamphetamine, MDMA (ecstasy), caffeine, procaine, and Trifluoromethylphenylpiperazine (TFMPP). At sentencing, the parties disputed whether the appropriate substitute under § 2D1.1 for the mixture was MDMA. The district court, however, concluded that no evidentiary hearing was necessary to credit the DEA lab reports. The Second Circuit remanded for an evidentiary hearing, holding that there was insufficient evidence in the record to conclude that the appropriate substitute under the Sentencing Guidelines for the mixture contained in the pills was MDMA. Unlike other cases, the record on appeal did not allow the appellate court to conclude that the pills found in defendant’s van were a mixture of BZP and TFMPP containing a similar chemical structure to MDMA, designed to mimic the effects of MDMA, or containing a similar potency to MDMA. The record appeared to indicate that the substance was almost exclusively composed of BZP, with “unmeasurable” amounts of other substances. U.S. v. Figueroa, 647 F.3d 466 (2d Cir. 2011).
2nd Circuit upholds finding that mixture was most similar to ecstasy. (252) Federal agents found 28,000 yellow pills in defendant’s car at a Border Patrol checkpoint. The pills contained a combination of 1-Benzylpiperazine (BZP) and 3-Triflouromethylphenyl (TFMPP). Defendant pled guilty to one count of possession with intent to distribute 8.475 grams of BZP. Because BZP is not “specifically referenced” in the guidelines, the court used the “marijuana equivalent of the most closely related controlled substance referenced in” the guidelines. Note 5 to § 2D1.1. The Second Circuit upheld the district court’s finding that MDMA, or ecstasy, was most closely related to the BZP-TFMPP combination. The court relied on the DEA’s determination that BZP and TFMPP are used in combination precisely because the mixture “mimic[s] the effects” of MDMA on the central nervous system. The fact that the pills were initially identified by agents as MDMA and had a “street price” similar to that of MDMA lent further support to this conclusion. U.S. v. Chowdhury, 639 F.3d 583 (2d Cir. 2011).
2nd Circuit says adding drugs manufactured to drugs distributed counted drugs twice. (252) The 2nd Circuit found that by adding the amount of methamphetamine defendant distributed to the amount he manufactured, the district court improperly counted the same drugs twice. The amount of drugs defendant manufactured was based on all the precursor chemicals defendant had ever ordered dating back to 1982. It was therefore an estimate of the total production capabilities of defendant’s lab. Because there was no evidence that defendant distributed any drugs other than those that he manufactured, the approximation of the drugs he manufactured included the quantity that he distributed. U.S. v. Spencer, 4 F.3d 115 (2nd Cir. 1993).
2nd Circuit finds court used wrong category of methamphetamine in Drug Quantity Table. (252) There are two categories of methamphetamine in the Drug Quantity Table: methamphetamine and methamphetamine (actual). Methamphetamine refers to the total end result of the chemical reaction which yields a mixture of methamphetamine and various impurities. Methamphetamine (actual) refers to the amount that is pure methamphetamine-amine. The 2nd Circuit held that the district court mistakenly thought that because both chemists testified that the procedures they were explaining would lead to a reaction that contained only a certain percentage of pure methamphetamine, the numbers that they were discussing referred to the amount of the mixed end product. In fact, the chemists were referring to the pure methamphetamine and not the total weight of the methamphetamine and the impurities. U.S. v. Spencer, 4 F.3d 115 (2nd Cir. 1993).
2nd Circuit finds court used wrong ratio of chemicals in determining methamphetamine produced. (252) The 2nd Circuit ruled that the district court used the wrong ratio to determine the methamphetamine that defendant could have produced from the precursor chemicals found in his lab. Several experts testified about various methods of manufacturing methamphetamine. The district court adopted a method using a 10 to 1 ratio, stating that it had a greater yield and was therefore cheaper to manufacture. In fact, the expert’s testimony and calculations indicated that the 5 to 1 ratio yielded the higher quantity of methamphetamine. Although on resentencing the court could still choose the 10 to 1 ratio, it should consider that the expert testified that this ratio would actually lead to a smaller quantity of methamphetamine. U.S. v. Spencer, 4 F.3d 115 (2nd Cir. 1993).
2nd Circuit rules evidence insufficient to determine that amount of drugs was foreseeable to defendant. (252) Defendant was convicted of possessing certain “listed chemicals” with intent to manufacture cocaine. A chemist testified that the chemicals might be used to produce eight to ten kilograms of cocaine, and the sentence was based on an intent to produce in excess of five kilograms. The 2nd Circuit reversed, ruling that there was insufficient evidence to support a finding that defendant actually knew or could have foreseen that more than five kilograms could have been produced. The cocaine “recipe” was not written in defendant’s handwriting and there was no evidence that defendant had any knowledge of how much cocaine might have been produced with the chemicals. Moreover, some ingredients were missing. Although the absence of those ingredients might not prevent a court from determining the amount of drugs that probably could have been produced, they were costly and difficult to obtain. Since no reliable estimate could be made, defendant should have been sentenced under guideline § 2D1.10. U.S. v. Perrone, 936 F.2d 1403 (2nd Cir. 1991).
2nd Circuit upholds determination that stocked laboratory was capable of producing 800 grams of pure PCP. (252) The 2nd Circuit upheld the district court’s determination that defendant’s laboratory as stocked was capable of producing 800 grams of pure PCP. Although there was contradicting testimony from two experts, the district court resolved the issue in favor of the government chemist. The government chemist stated that it is common for clandestine PCP laboratories not to use a purification process, but under the guidelines, “pure PCP” appears to mean PCP which has not been “cut” or adulterated, rather than PCP which has been subjected to the maximum possible purification. U.S. v. Macklin, 927 F.2d 1272 (2nd Cir. 1991).
2nd Circuit upholds estimate of PCP that could be produced from seized chemicals despite government’s failure to test chemicals. (252) Based on the chemicals seized and the formula defendants intended to use, a government expert testified that defendants could have produced 550 grams of PCP. The expert stated that she had seen all of the chemical containers seized, but did not test the substances in every container. Instead, she noted the physical characteristics of the substances, and believed them to be consistent with the labels on the containers, many of which were factory sealed. She considered the chemicals dangerous and had them destroyed. The 2nd Circuit found no error in the district court’s reliance on this estimation. U.S. v. Macklin, 927 F.2d 1272 (2nd Cir. 1991).
3rd Circuit holds that sentence below advisory range was reasonable. (252) Defendant smuggled about 10,000 pills of ecstasy into the U.S. She was traveling with two companions, and the total amount of ecstasy smuggled by defendant and her co-conspirators was 35,000 pills. The district court sentenced her to 23 months, which was seven months below her advisory sentencing range. A more culpable co-defendant who was held accountable for more than three times the number of ecstasy tablets as defendant received only a 30-month sentence. The Eighth Circuit held that the 23-month sentence was reasonable. The panel lacked jurisdiction to review her claim that the district court should have granted a downward departure based on aberrant behavior. The court properly considered defendant’s relevant conduct—Booker did not alter the consideration of relevant conduct. Finally, although defendant argued that the court should not have permitted a sentencing disparity between co-defendants, this was a post-Booker sentencing, the court was aware of its new responsibility under 18 U.S.C. §3553(a), and the sentence was reasonable. U.S. v. Giaquinto, 441 F.3d 195 (3d Cir. 2006).
3rd Circuit holds that trace amounts of heroin, together with cutting agents, constituted a “mixture.” (252) Police seized two packages from defendant. The larger box field tested negative for heroin. However, later lab tests disclosed that the larger package weighed 983.9 grams, and was comprised almost exclusively of procaine and lidocaine, common heroin cutting agents. The large package contained trace amounts of heroin, but the purity of the drug could not be determined due to its small quantity. The smaller package, weighing 32 grams, contained a similar mix of cutting agents, but with heron detected at a purity of 3%. The Third Circuit held that the district court properly held defendant accountable for the combined gross weight of both packages. Even when a drug contains a very slight amount of a controlled substance, the entire package must count towards a defendant’s sentence. The panel rejected defendant’s claim that an immeasurably small “trace” of a controlled substance, together with a cutting agent, does not constitute a “mixture” or “substance.” The traces of heroin disclosed during lab testing, although in amounts too small to determine its purity, constituted a detectable amount. The district court did not err when it included the entire weight of the larger package in calculating defendant’s sentence. U.S. v. Berroa-Medrano, 303 F.3d 277 (3d Cir. 2002).
3rd Circuit uses weight of entire pills rather than weight of controlled substance in pills. (252) The uncontested lab report showed that defendant’s 26,400 Endocet pills had a combined weight of 14.49 kilograms. Under the Drug Equivalency Tables in Note 10 to § 2D1.1(c), one gram of oxycodone, the controlled substance in Endocet, is equivalent to 500 grams of marijuana. This resulted in an equivalency of 7245 kilograms of marijuana. The Third Circuit held that the district court did not err when it attributed to defendant the gross weight of the Endocet pills rather than the net weight of the oxycodone. Application Note A to the Drug Quantity Table provides that “[u]nless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of a mixture or substance containing a detectable amount of the controlled substance.” See also U.S. v. Gurgiolo, 894 F.3d 56 (3d Cir. 1990) (reversing calculation of drug quantity based on net weight of oxycodone in Percocet pills). The panel also rejected defendant’s argument based on Amendment 517, applicable to Schedule I or II Depressants, which equates one unit or one pill to one gram of marijuana. Oxycodone is not a Schedule II Depressant. It is a Schedule II Opiate, a classification distinguishable from Schedule II Depressants. U.S. v. Butch, 256 F.3d 171 (3d Cir. 2001).
4th Circuit says court need not “err on the side of caution” in approximating drug quantity. (252) The district court combined the 2996 pills of ecstasy found in defendant car with the “drug equivalent” of the $67,987.96 of currency found with it. The court determined the “drug equivalent” of the currency by dividing the value of the currency by $20, the estimated cost of a single pill of ecstasy. Defendant did not dispute that the currency was drug money, but argued that the court improperly failed to “err on the side of caution” in its valuation of ecstasy at $20 per pill. The Fourth Circuit held that sentencing courts are not required to “err on the side of caution” in approximating drug amounts; it must only determine that it was more likely than not that the defendant was responsible for at least the drug quantity attributable to him. Here, because the court accepted the valuation of $20 per dose from the PSR, defendant had “the affirmative duty to show that the information contained in the report [was] inaccurate or unreliable.” The PSR’s estimate was supported by a DEA officer. Because defendant failed to produce any evidence to suggest that the $20 per pill amount was unreliable, it was not clear error for the district court to accept the PSR’s price. U.S. v. Kiulin, 360 F.3d 456 (4th Cir. 2004).
5th Circuit upholds use of presumed typical weight of 250 mg per MDMA pill suggested by Guidelines. (252) Defendant pled guilty to conspiracy to possess with intent to distribute methylenedioxymethamphetamine (MDMA). The district court found that he was accountable for 45,331 MDMA pills. The district court used the “presumed weight” of 250 mg per MDMA pills suggested by the Typical Weight Per Unit Table contained in the application notes of § 2D1.1. Defendant argued that the court should have used the figure of 100 mg per pill because each of the approximately 5000 pills analyzed by the DEA lab report contained 100 mg of MDMA. The Fifth Circuit found no error. The relevant weight is not the actual weight of MDMA detected in each pill, but the entire weight of any “mixture or substance containing a detectable amount” of MDMA. The district court did not err in applying the presumed typical weight of 250 mg indicated by the Sentencing Guidelines. U.S. v. Tushnet, 526 F.3d 823 (5th Cir. 2008).
5th Circuit holds that court erred in using entire weight of LSD/vodka solution. (252) Defendant sold a mixture of LSD and vodka in a single bottle. Together, the LSD and vodka weighed 18.53 grams. Defendant contended that the sentencing court erred when it used the entire weight of the LSD/vodka solution in determining his base offense level of 32. The Fifth Circuit agreed. In the recently decided U.S. v. Morgan, 292 F.3d 460 (5th Cir. 2002), it joined other circuits in holding that “when the controlled substance is LSD contained in a liquid solution, the weight of the pure LSD alone should be used in determining the base offense level under the Guidelines.” Because Morgan controlled, the inclusion of the weight of the vodka constituted reversible error. U.S. v. Keresztury, 293 F.3d 750 (5th Cir. 2002).
5th Circuit rules court erred in including weight of liquid solution containing LSD. (252) Police found 13 bottles containing a liquid solution with a detectable amount of LSD. The PSR and the district court counted the entire weight of the liquid containing the LSD, 41.8 grams. The Fifth Circuit reversed, holding, consistent with the view of three other circuits, that when LSD is contained in a liquid solution, the weight of the pure LSD alone should be used to determine the offense level. First, because Note 16 specifies upward departures may be warranted when sentencing based upon the weight of “liquid LSD,” liquid LSD is a mixture or substance that the guidelines have apparently excluded from use as the “entire weight of any mixture or substance” for sentencing purposes. Second, Application Note 1’s reference to material that must be separated from the drug before the drug can be “used” refers to the consumption of that substance, not using it to make a marketable product. Moreover, the .4 milligram conversion factor used for LSD on a carrier medium is not used with liquid LSD. Application Note 16’s express authorization for upward departures would be meaningless if the guidelines intended the entire weight of the combined LSD and liquid solution to be counted; and using the weight of pure LSD alone will eliminate sentencing discrepancies when LSD contained in a liquid solution is involved. U.S. v. Morgan, 292 F.3d 460 (5th Cir. 2002).
5th Circuit bases sentence on total benzyl chloride even though half had been converted to List II chemical. (252) In March 1997, defendant had one liter (1100 grams) of benzyl chloride, a List II chemical, delivered to his house. In September 1997, a second liter was delivered. DEA agents arrested him after the second delivery. He pled guilty to possessing benzyl chloride with the intent to manufacture a controlled substance, phenyl acetone. The court based his sentence on a total of 2200 grams of benzyl chloride. Defendant argued that at the time of his arrest he had converted the first liter into about 500 grams of benzyl cyanide, a List I chemical. He argued that when an offense involves both List I and List II chemicals, the guidelines direct the use of whichever chemical provides the highest base offense level. The Fifth Circuit rejected this argument. The ultimate fate of the first liter of benzyl chloride was irrelevant for sentencing purposes. Defendant was not convicted of possessing benzyl chloride and benzyl cyanide. He admitted possessing two liters of benzyl chloride during the period bracketed by the indictment. The court properly sentenced defendant for the aggregate amount he possessed over the relevant time. U.S. v. Arnold, 148 F.3d 515 (5th Cir. 1998).
5th Circuit says “mixture” amendment does not address sentence based on laboratory capacity. (252) Defendant was convicted of methamphetamine charges. After sentencing, he moved to modify his sentence under Amendment 484, which amended the application notes to § 2D1.1 to explain that the term “mixture or substance” does not include the weight of materials that must be separated from a controlled substance before use. The Fifth Circuit found that Amendment 484 did not apply since defendant was sentenced based on the capacity of his laboratory. When a defendant is sentenced based on laboratory capacity, it is the size and production capacity of the laboratory, not the actual amount of methamphetamine seized, that matters. The government expert testified that defendant’s lab had the capacity to produce 10 pounds of DL-methamphetamine, which defendant did not dispute was 50 percent D-meth and 50 percent L-meth. Thus, the lab could produce five pounds of D-meth and defendant was still subject to the same 240-month mandatory minimum. U.S. v. Allison, 63 F.3d 350 (5th Cir. 1995).
5th Circuit applies 2D1.1 rather than 2D1.11 to conspiracy to manufacture methamphetamine. (252) Defendant was convicted of conspiring to manufacture methamphetamine. In an unpublished opinion, the 5th Circuit held that the district court erroneously used the Drug Equivalency Table to determine how much methamphetamine could be manufactured from the phenylacetic acid seized from defendant. In defendant’s second appeal, the 5th Circuit held that defendant’s conspiracy sentence was properly calculated under § 2D1.1 rather than § 2D1.11. Section 2D1.11(c) provides that § 2D1.1 is the correct guideline where, as here, the offense involves an attempt to manufacture a controlled substance, and the resulting offense level is greater than determined under § 2D1.11. Thus, § 2D1.1 was the applicable provision. U.S. v. O’Leary, 35 F.3d 153 (5th Cir. 1994).
5th Circuit remands where sentence based on producible amphetamine rather than phenylacetone. (252) Defendant was convicted of conspiracy to manufacture amphetamine and phenylacetone. He argued that the district court erred in calculating his sentence based upon the amount of amphetamine producible from the chemicals recovered from his lab, rather than from the amount of phenylacetone producible from such chemicals. He argued that using the phenylacetone would produce a lower offense level. The 5th Circuit agreed that remand was necessary because it was impossible to tell which drug the jury focused upon in convicting defendant. To obtain a conviction, the government was only required to prove that one or the other drug was produced. On remand, if the equivalency table yields a lower offense level for phenylacetone, the district court must sentence defendant using the lower offense level. U.S. v. Bounds, 985 F.2d 188 (5th Cir. 1993), abrogation on other grounds recognized by U.S. v. Medina, 161 F.3d 867 (5th Cir. 1998).
5th Circuit affirms sentence based upon weight of mixture in the formative stages of manufacturing process. (252) Defendants were convicted of manufacturing methamphetamine. They contended that it was improper to base their sentences upon the full weight of the chemical mixture found in their laboratory, because it only contained a small quantity of methamphetamine. The 5th Circuit rejected their claim that the Supreme Court’s decision in Chapman v. U.S., 111 S.Ct. 1919 (1991) effectively overruled the line of cases holding that a district court should consider the total weight of a substance containing a detectable amount methamphetamine. The court expressly declined the follow recent cases in other circuits which have refused to include poisonous by-products or uningestible carriers in the weight of a drug. U.S. v. Sherrod, 964 F.2d 1501 (5th Cir. 1992).
5th Circuit upholds sentencing based on chemicals and glassware supplied by the government. (252) Defendant was arrested after undercover DEA agents assisted defendant in purchasing chemicals and equipment to produce methamphetamine. Defendant contended that government agents improperly predetermined his sentence by supplying the chemicals and glassware. The 5th Circuit rejected this argument. The argument was not raised at trial and therefore had to be rejected absent plain error. Although a previous case had found plain error in the determination of a defendant’s sentence when the government had supplied the chemicals used in a drug conspiracy, in that case the defendant did not understand the amount of drugs that could be produced by the chemicals provided by the government. Here, there was evidence that defendant understood the amount of drug to be produced. U.S. v. Evans, 941 F.2d 267 (5th Cir. 1991).
5th Circuit upholds calculation of drugs based on laboratory’s production capabilities. (252) In calculating the quantity of methamphetamine, the district court considered the amount that could have been produced in defendant’s laboratory from the phenylacetic acid that was seized at his residence. Defendant contended this was improper because several necessary precursor chemicals were absent, and synthesis required an intermediate step. When the officers entered the premises, the lab was disassembled. The 5th Circuit upheld the calculation. Defendant admitted manufacturing methamphetamine in the past. Officers smelled a strong odor associated with the manufacture of methamphetamine prior to obtaining a warrant and at the time of the search. Beakers containing trace amounts of the absent precursor chemicals were also found in the laboratory. The 5th Circuit also rejected defendant’s argument that consideration of the phenylacetic acid punished him for possession of a legal chemical, which was not listed as a precursor at the time of his arrest. The chemical is a necessary ingredient in the manufacture of methamphetamine, and has virtually no legitimate use in the home. U.S. v. Smallwood, 920 F.2d 1231 (5th Cir. 1991).
5th Circuit rules that quantity of precursor may be relied upon in setting offense level. (252) The 5th Circuit held that it is proper to consider quantities of precursor chemicals possessed by drug conspirators when setting the base offense level. Section 2D1.4 provides that a defendant convicted of an incomplete conspiracy shall be sentenced as if the object of the conspiracy had been completed. Since a chemist testified that 12 pounds of P2P would produce 12 pounds of amphetamine, it was proper for the district court to consider the P2P as actual methamphetamine when calculating the offense level. U.S. v. Stephenson, 887 F.2d 57 (5th Cir. 1989), abrogation on other grounds recognized by U.S. v. Johnon, 961 F.2d 1188 (5th Cir. 1992).
6th Circuit holds operator of pain clinic responsible for drugs prescribed to addicts and phantom patients. (252) Defendant and her husband were convicted of various crimes associated with their operation of several pain-management clinics. To determine the offense level, the district court aggregated drug quantities from three sources: the hydrocodone defendant ordered directly from drug distributors; the pain medication prescribed to phantom patients (her family members); and the oxycodone prescribed to Baldridge, a known drug addict. The Sixth Circuit affirmed. Although defendant was acquitted of the distribution to two phantom patients, the jury said nothing about other, uncharged phantoms, such as defendant’s family members. The fact that Baldridge lied to the doctors did not absolve defendant from responsibility for the drugs prescribed to him. Drug addicts routinely walked into defendant’s clinic, handed over cash, got no “real pain assessment,” told an obvious lie, and then walked out of the clinic minutes later with a drug prescription. The doctor’s and other conspirators’ actions were reasonably foreseeable acts in furtherance of jointly undertaken activity. U.S. v. Sadler, 750 F.3d 585 (6th Cir. 2014).
6th Circuit says court misunderstood its authority to reject guideline ratio, but error was harmless. (252) Defendant was convicted of conspiracy to manufacture and distribute methylenedioxymethamphetamine (MDMA), or “ecstasy.” He argued that the MDMA-to-marijuana equivalency ratio in the guidelines was based on faulty science, and asked the district court to select a new MDMA-to-marijuana equivalency ratio, or at least vary from the guidelines. The district court refused, finding it lacked authority to reject the equivalency ratio. The Sixth Circuit held that the district court misunderstood its authority to reject and replace a guidelines equivalency ratio based on policy disagreements, but concluded that the error was harmless. The court recognized that in certain situations a court may reject a policy statement, but believed it was not proper to vary from the guidelines ratio based on policy disagreements. The district court was concerned about separation of powers, institutional competence, and sentencing variation among district judges. These constitutional and institutional objections were rejected by the Supreme Court in Kimbrough v. U.S., 552 U.S. 85 (2007). However, the error was harmless because it was clear the district court would have imposed the same sentence even if it had properly understood its authority. U.S. v. Kamper, 748 F.3d 728 (6th Cir. 2014).
6th Circuit finds any error in drug amount harmless given same offense level for distribution leading to death. (252) Defendant, a former doctor, was convicted of drug charges based on his improper prescription of pain medications to drug addicts and other patients. Twelve of his patients died. He argued that the district court did not account for legitimate prescriptions in arriving at its drug-quantity determination. The Sixth Circuit found any error was harmless. Even if the district court erred by concluding that defendant’s drug quantity warranted a base offense level of 38, defendant’s convictions for unlawful distribution leading to death, standing alone, warranted the same base offense level. See § 2D1.1(a)(2) (specifying a base offense level of 38 for defendant convicted under § 841(b)(1)(C) and death or serious bodily injury resulted from the use of the substance). U.S. v. Volkman, 736 F.3d 1013 (6th Cir. 2013).
6th Circuit affirms within-Guidelines sentence against procedural and substantive challenges. (252) Defendant pleaded guilty to trafficking in more than 8,000 MDMA pills. At sentencing, the district court calculated his sentencing range as 70 to 87 months. Defendant argued that the court should impose a sentence below the Guidelines range because he and his family fled from Iraq as refugees, he had dropped out of school in 10th Grade to support his disabled parents, he faced deportation back to Iraq, and he became involved in drugs only because of an “economic opportunity” offered by a co-worker. The district court acknowledged the reasons that, defendant argued, supported a below-Guidelines sentence, but it did not discuss each argument. The court imposed a 70-month sentence based on the seriousness of the offense and defendant’s role in it. The Sixth Circuit held that the district court had adequately considered the factors set forth in 18 U.S.C. § 3553(a), even if it could have “said more” about defendant’s arguments. For that reason, the court found that the sentence was procedurally and substantively reasonable. U.S. v. Petrus, 588 F.3d 347 (6th Cir. 2009).
6th Circuit holds that safety valve defendant should have LSD weighed using guideline dosage amounts. (252) In Chapman v. United States, 500 U.S. 453 (1991), the Supreme Court held that a court should consider the weight of the LSD and any carrier medium in determining the LSD’s weight for mandatory minimum purposes. Amendment 488 to the guidelines, effective November 1995, provides that the weight of a LSD mixture is calculated by multiplying the number of doses by .4 milligrams. In Neal v. United States, 516 U.S. 284 (1996), the Supreme Court concluded that Amendment 488 did not affect Chapman and applies only to calculating the weight of an LSD mixture under the guidelines. Defendant was eligible for safety valve relief under 18 U.S.C. § 3553(f), which directs the sentencing court to impose a sentence without regard to any statutory minimum sentence. The Sixth Circuit held that because defendant was not being sentenced under the mandatory minimum statute, the district court erred in using the gross weight of the LSD gel tabs to determine his sentence. Defendant’s eligibility for safety valve protection entitled him to be sentenced without regard to the 10-year mandatory minimum. Therefore, the governing law for determining the weight of defendant’s LSD was Amendment 488. U.S. v. Powers, 194 F.3d 700 (6th Cir. 1999).
6th Circuit upholds estimate of meth to be produced where arrest interrupted “cooking” process. (252) Police arrested defendant and others while they were making methamphetamine. The production process takes about 12 hours and the chemicals had been “cooking” for almost seven hours. Police turned off the crock pot in which the methamphetamine was being “cooked,” but a DEA chemist did not take samples until several hours later. It was undisputed that some methamphetamine had been produced at the time of the raid. The Sixth Circuit upheld the court’s estimate that defendant would have produced 250 grams if allowed to complete the process. The contents of the crock pot weighed 4180 grams. A forensic chemist testified to a conversion of 60 percent of the ingredient ephedrine, by weight, into methamphetamine. He used a 60 percent figure based on studies of other scientists suggesting clandestine labs yield 50‑76 percent of ephedrine and also consulted with other scientists at other laboratories. The district court used the lowest estimate, a 50 percent yield. U.S. v. Jennings, 83 F.3d 145 (6th Cir. 1996).
6th Circuit rejects use of yield from previous case absent evidence of laboratory capacity. (252) Defendant possessed 1.8 kilograms of ephedrine, which he intended to use to produce methcathinone. The district court relied on yields discussed in U.S. v. Baker, 852 F.Supp. 609 (W.D. Mich. 1994), affirmed by U.S. v. Pavkik, (unpublished) (6th Cir. Feb. 13, 1995), to find that defendant could produce 900 grams of methcathinone from his 1.8 kilograms of ephedrine. The Sixth Circuit reversed for lack of evidence comparing the capacity of defendant’s laboratory to the laboratory in Baker. U.S. v. Mahaffey, 53 F.3d 128 (6th Cir. 1995).
6th Circuit upholds estimate based on chemist’s affidavit despite inconsistency with trial testimony. (252) The 6th Circuit upheld the district court’s determination that defendant was responsible for 200 pounds of methamphetamine, based upon a DEA chemist’s affidavit that the 27.4 liters of acetic anhydride found in defendant’s laboratory could be used to produce 38.9 kilograms of phenyl-2-propane, which could be used to make either 43.2 kilograms of methamphetamine or 39.2 kilograms of amphetamine. Although this conflicted with the chemist’s trial testimony that no acetic anhydride was found in the lab, the district court found that the chemist was mistaken at trial. U.S. v. Brannon, 7 F.3d 516 (6th Cir. 1993).
6th Circuit upholds sentencing for amount of drugs defendant intended to produce with precursor chemical. (252) Defendant was arrested in possession of phenylacetic acid, a precursor of methamphetamine. Defendant pled guilty to violating 21 U.S.C. § 841(d), possession of a “listed chemical” with the intent to manufacture and distribute a controlled substance. The district court found that defendant intended to produce 500 grams of methamphetamine with the precursor chemical, and sentenced him on that basis. Defendant contended that he should be punished according to the amount of the listed chemical he possessed, not the amount of methamphetamine that he could have produced. The 6th Circuit upheld the district court’s calculation. The court acknowledged that a problem is created because violators of § 841(d) have not sold or made any controlled substance, while the guidelines fix sentences based on the amount of controlled substance involved. However, it rejected defendant’s theory because it found that punishing violations of § 841(d) according to the amount of controlled substances that a defendant intended to produce was “more in line with the spirit of the law.” U.S. v. Kingston, 922 F.2d 1234 (6th Cir. 1990).
7th Circuit considers illegal prescriptions to additional patients as relevant conduct. (252) Defendant, a nurse practitioner, was charged with prescribing a variety of controlled substances, including oxycontin, vicodin, and fentanyl, to nine people, each of whom she knew did not have a legitimate need for the medications. She pled guilty to one count, and the remaining were dismissed. However, at sentencing, the district court included as relevant conduct prescriptions written to four patients. The Seventh Circuit affirmed. The government is required to address every patient to whom a medical professional defendant has written an allegedly unlawful prescription. The government is not required to systematically discuss every single prescription that every single patient received. Here, the government presented ample evidence to prove that the prescriptions had no legitimate medical purpose and were written outside the usual course of appropriate medical practice. The court did not improperly mix the criminal and civil standards of liability. It is impossible to sensibly discuss whether a doctor was acting outside the usual course of professional practice without mentioning the usual standard of care. U.S. v. Rosenberg, 585 F.3d 355 (7th Cir. 2009).
7th Circuit calculates statutory drug quantity by focusing on pure methamphetamine. (252) Defendant argued that the district court erred in calculating his drug quantity by determining the amount of pure methamphetamine his lab could produce. He argued that pure methamphetamine should not be considered, because it is not marketable. The 7th Circuit disagreed. The plain language of 18 U.S.C. section 841(b)(1)(A)(viii) anticipates that a sentence can be based on the quantity of pure methamphetamine or any mixture in which methamphetamine is detected. The district court’s assessment of the capacity of defendant’s lab was not clearly erroneous. U.S. v. Shaffer, 993 F.2d 625 (7th Cir. 1993).
8th Circuit finds no plain error in using MDMA tables for BZP offense. (252) Defendant pled guilty to distributing and conspiring to distribute Benzylpiperazine (BZP). The district court found that BZP was sufficiently equivalent to Methylenedioxymethamphetamine (MDMA), also known as “Ecstasy,” to compute defendant’s drug quantity. Defendant argued that the district court failed to consider his argument that BZP was insufficiently similar to MDMA, in both potency and properties, to justify use of the MDMA tables in sentencing a BZP offense. The Eighth Circuit disagreed. The court stated at sentencing that it had reviewed all of defendant’s evidence, stressed it had “thought about this a long time,” and acknowledged that he had made some good arguments. Moreover, the court actually continued defendant’s sentencing for over five months and ordered a second addendum to the PSR for the specific purpose of addressing defendant’s BZP argument. The court adequately explained why BZP and MDMA were sufficiently related. It examined BZP’s multiple deleterious effects on its users and the community as compared to other drugs listed in the guidelines. There was no significant procedural error. U.S. v. Bennett, 659 F.3d 711 (8th Cir. 2011).
8th Circuit upholds use of Typical Weight Per Unit Table where conspiracy involved variety of ecstasy pills. (252) Defendant was arrested when he arrived in Minnesota to deliver 12,000 ecstasy pills he had arranged to sell to an FBI informant. The government analyzed the pills (which were blue), and determined they weighed between 320 and 325 mg. Defendant argued that the pills attributed to him should have been standardized at 46.8 mg per pill because that was the weight attributed to the pills seized from Kieu, a co-conspirator. Kieu testified that he bought pink pills from defendant at one point in the conspiracy. At sentencing, the district court used the default weight of 250 mg suggested in the Guidelines because there was testimony that the pills defendant was selling varied in color and potency. The Eighth Circuit found that in light of evidence that the conspiracy involved a variety of pills, many of which were not available for chemical analysis, it was not error for the court to use the Typical Weight Per Unit Table. Note 11 to § 2D1.1 directs a court to use the Typical Weight Per Unit Table unless “any more reliable estimate of the total weight is available from case-specific information.” U.S. v. Nguyen, 608 F.3d 368 (8th Cir. 2010).
8th Circuit upholds organizer or leader enhancement for drug conspirator. (252) Defendant participated in a conspiracy that transported MDMA from Oakland to St. Louis, where the drugs were sold. Defendant’s role in the conspiracy was to acquire the drugs from a supplier, ship or transport the drugs to St. Louis, and arrange for the proceeds to be returned to the drug supplier in California. While defendant was incarcerated during the conspiracy, he introduced an accomplice to the supplier and arranged for the deliveries to continue. At sentencing, the district court enhanced defendant’s offense level by four levels under § 3B1.1 because he was an organizer or leader of the conspiracy. The Eighth Circuit affirmed, rejecting defendant’s arguments that the evidence showed that he was only a “middleman,” not an organizer or leader and that the enhancement was improper because other conspirators received lesser role enhancements. U.S. v. Williams, 605 F.3d 556 (8th Cir. 2010).
8th Circuit holds that ecstasy amendments did not become effective until publication in Federal Register. (252) In January 2001, the Sentencing Commission published a notice of proposed increased penalties for ecstasy offenses, though no effective date was specified. The Commission held a public hearing on March 19, 2001, and on April 20, 2001, the Chair of the Commission sent a letter along with the Supplement to the Guidelines Manual to recipients of the guideline manual. The letter noted that certain amendments, including those at issue here, would take effect on May 1, 2001. Finally, on June 6, 2001, the amendments were published in the Federal Register with an effective date of May 1, 2001. In their final form, the amendments contained one-half of the proposed increase announced in January. On May 11, 2001, defendant was found in possession of 960 tablets of ecstasy. The Eighth Circuit held that the earliest possible effective date for the Ecstasy Act enhancements was June 6, 2001, the date the amendments were published. The amendments were not retroactive to May 1, and therefore, the district court erred when it sentenced defendant under the new scheme. U.S. v. DeLeon, 330 F.3d 1033 (8th Cir. 2003).
8th Circuit relies on co-conspirator’s formula to determine lab’s meth production. (252) Defendants were involved in manufacturing methamphetamine at a farmhouse. A co-conspirator detained for purchasing suspiciously large amounts of iodine told police about the lab. After FBI agents surrounded the house, the occupants set the lab on fire. After the fire, police found traces of ephedrine, iodine, and red phosphorus, which are methamphetamine ingredients. The co-conspirator testified that defendants’ formula for methamphetamine was 3 parts ephedrine to 2 parts iodine to one part red phosphorus. Using this formula and 81.5 pounds of iodine, the district court found that the conspiracy had produced at least 16.67 kilograms of methamphetamine. The Eighth Circuit upheld the court’s use of the co-conspirator’s formula to determine the lab’s production of methamphetamine. The estimate was conservative¾the 81.5 pounds of iodine used by the court was only part of the total iodine the co-conspirator testified to purchasing. Moreover, although defendants claimed that their yield was less than 100%, the court’s estimate took this into account. Even a yield assumption of 50-55% would have resulted in 60 pounds or 27 kilograms, of methamphetamine. The court’s use of only 16.67 kilograms was therefore conservative. U.S. v. Coleman, 148 F.3d 897 (8th Cir. 1998).
8th Circuit says court erred in rejecting as “irrelevant” defendant’s testimony about lab capacity. (252) Police seized an operational methamphetamine laboratory from defendant’s residence. A chemist who analyzed defendant’s lab testified that it was capable of producing 0.75 grams of methamphetamine from one gram of ephedrine. A certified lab investigator testified that he believed the .75 gram figure was appropriate based on defendant’s experience as a cook, the seized evidence, and information others had given regarding the quantity of methamphetamine defendant was dealing. Defendant testified that although he had been cooking methamphetamine for 4 to 5 years, he had never yielded .75 of a gram from one gram of ephedrine, and that his usual yield was 0.25 grams. The court adopted the government’s position and found defendant’s testimony “irrelevant.” The Eighth Circuit disagreed. The court could have found defendant’s testimony on methamphetamine yield not credible, but the court did not make such a finding. The court erroneously turned the inquiry into what an average cook was capable of yielding, not what defendant could have produced based on the seized chemicals. U.S. v. Cole, 125 F.3d 654 (8th Cir. 1997).
8th Circuit approves use of Drug Quantity Table rather than Chemical Quantity Table. (252) Defendant pled guilty to conspiracy to manufacture and distribute methamphetamine. He stipulated that he had manufactured methamphetamine six times, each time using about five pounds of phenylacetic acid to produce 22 ounces of methamphetamine. Using these figures, the court held defendant accountable for 3.4 to 3.7 kilograms of methamphetamine. Defendant also admitted instructing a co-conspirator to acquire 25 pounds of phenylacetic acid for the purpose of making phenylacetic acid. The district court converted the 25 pounds of phenylacetic acid to 2.8 to 3.1 kilograms of methamphetamine for sentencing purposes. The Eighth Circuit held that the court properly used the Drug Quantity Table, rather than the Chemical Quantity Table, to calculate defendant’s base offense level. Under § 2D1.11(c)(1), a court must apply § 2D1.1 rather than § 2D1.11 if the offense involved manufacturing a controlled substance and it would result in a higher offense level. Defendant admitted that he manufactured methamphetamine on his ranch six times. The court also correctly converted the phenylacetic acid to an amount of methamphetamine. A court may look to the circumstances of defendant’s conspiracy to approximate the amount of methamphetamine. U.S. v. Griggs, 71 F.3d 276 (8th Cir. 1995).
8th Circuit upholds estimate based on precursor chemicals missing from warehouse where defendant worked. (252) Chemicals that could be used to manufacture methamphetamine disappeared from a chemical supply company warehouse defendant managed. Defendant was eventually convicted of methamphetamine and money laundering. A chemist testified that using one method of manufacture, 38.9 kilograms of methamphetamine could have been produced from the missing chemicals. Using another method, an additional 180.5 kilograms could have been manufactured. A drug dealer’s ledger showed defendant sold about 21 kilograms of methamphetamine to the dealer over a 12-18 month period out of a 2-year course of dealing between the two. The 8th Circuit upheld the court’s estimate that defendant was accountable for 38.9 kilograms of methamphetamine. The quantity determination was based on a conservative estimate of the known precursor chemicals available to defendant. U.S. v. McCormick, 29 F.3d 352 (8th Cir. 1994).
8th Circuit refuses to apply new “listed chemical” guideline retroactively. (252) Defendant argued that he should be resentenced using the new “listed chemical” guideline, §2D1.11 by reason of 18 U.S.C. §3582(c)(2), which authorizes a district court to reduce a sentence in certain circumstances where a sentencing range has been subsequently reduced by the Commission. The 5th Circuit rejected the request. The amendment that added section 2D1.11 is not listed in section 1B1.10(d) and therefore a reduction in the defendant’s term of imprisonment under section 3582(c) was not consistent with this policy statement. U.S. v. Wilson, 997 F.2d 429 (8th Cir. 1993).
8th Circuit upholds estimate based on most abundant precursor chemical at laboratory. (252) The 8th Circuit upheld basing defendants’ offense levels under section 2D1.4 on the most abundant precursor chemical seized at their methamphetamine laboratory. The amount of methamphetamine seized was far less than the capability of the laboratory using the precursor chemicals on hand. Therefore, section 2D1.4 required the district court to estimate a larger quantity for sentencing purposes. There is no requirement that an estimate be based upon the least abundant precursor. The quantity estimate was realistic: one of the defendants had prior experience as a methamphetamine cook and the laboratory was fully equipped except for readily available household products. The fact that one defendant shot another did not necessarily end the conspiracy. While the shooting likely interrupted the enterprise, given the substantial resources invested in setting up the lab, it was not erroneous to base the methamphetamine estimate on the full use of the precursor chemicals. U.S. v. Funk, 985 F.2d 391 (8th Cir. 1993).
8th Circuit upholds calculation of methamphetamine laboratory’s capacity. (252) The district court found defendants were responsible for between 30 and 100 kilograms of methamphetamine based upon the presentence report’s conclusion that defendants were able to produce 75 kilograms of methamphetamine at their laboratory. The 8th Circuit upheld the district court’s calculation. With respect to the disputed five pounds produced at the laboratory, the district court could have reasonably relied on one defendant’s statement that a co-defendant probably “cooked” another five pounds. As to the existence of an empty drum of precursor chemicals found in Chanute, Kansas, the court could have reasonably relied on the testimony of a Kansas agent and two chemists who observed the seized drug. Additionally, one defendant, during negotiations with undercover agents, admitted that he had previously purchased two 110 pound drums of precursor chemicals. Senior Judge Bright concurred separately to comment upon the “cruel” sentences imposed by the guidelines upon these first offenders. U.S. v. Stockton, 968 F.2d 715 (8th Cir. 1992).
8th Circuit upholds use of precursor chemicals to calculate methamphetamine quantity. (252) The 8th Circuit held that the district court correctly approximated the amount of methamphetamine defendant’s laboratory could have produced using the quantity of precursor chemicals and the size of the laboratory. A DEA chemist who inspected the lab testified that defendant could have produced 400 grams of methamphetamine using the precursor chemicals that were present. The presentence report determined that defendants had sufficient chemicals to produce 226.8 grams, and this was the figure used by the district court. The DEA chemist also testified that defendants had a valid recipe to “cook” methamphetamine. The fact that one of the necessary precursor chemicals was missing did not change the analysis. An approximation does not require that every precursor chemical be present. U.S. v. Beshore, 961 F.2d 1380 (8th Cir. 1992).
8th Circuit affirms reliance upon laboratory’s production capability despite defendant’s abandonment. (252) Defendant argued that it was error to base his offense level calculation upon the amount of amphetamine defendant’s laboratory was capable of producing since defendant had abandoned the laboratory and had no intention of producing anything further. The 8th Circuit rejected this argument, finding the district court had properly based defendant’s offense level on the quantity of drugs defendant’s laboratory could have produced. “That [defendant] may have abandoned his efforts to manufacture the drug neither affected the laboratory’s production capacity nor altered the fact that when he set up the laboratory he intended to produce a large quantity of amphetamine.” U.S. v. Fulcher, 943 F.2d 824 (8th Cir. 1991).
8th Circuit affirms consideration of precursor chemicals in determining base offense level. (252) The 8th Circuit found no error in the district court’s consideration of precursor chemicals found with defendant’s drug laboratory equipment. If the amount of drugs seized does not reflect the scale of the manufacturing offense, a sentencing court can consider evidence concerning the amount of drugs a defendant was capable of producing from precursor chemicals. Here, the district court heard expert testimony estimating the amount of methamphetamine that could be produced from the precursor chemicals, as well as testimony about the amount of drugs made in previous “cooks.” The district court arrived at a correct calculation of base offense level after hearing this evidence. U.S. v. Rogers, 939 F.2d 591 (8th Cir. 1991).
9th Circuit discourages use of “theoretical maximum yield” in calculating drug quantity. (252) At defendant’s sentencing for conspiracy to manufacture ecstasy, the government presented evidence of the “theoretical maximum yield” of ecstasy that defendant and his coconspirators could have produced. The district court relied in part on this evidence to set defendant’s offense level. The Ninth Circuit reaffirmed that use of a “theoretical maximum yield” analysis to determine the quantity of a drug was “discouraged,” and remanded for a recalculation of the quantity. U.S. v. Forrester, 616 F.3d 929 (9th Cir. 2010).
9th Circuit reverses for failure to make specific drug quantity finding. (252) Defendant pleaded guilty to a conspiracy to manufacture and distribute ecstasy. At sentencing, the government presented evidence of the amount of ecstasy the conspiracy could produce; defendant disputed that evidence and argued for a lower quantity. The district court failed to make specific findings as to the amount of ecstasy involved in the offense and instead accepted the government’s proposed offense level. The Ninth Circuit held that the district court erred in failing to resolve the dispute between the parties and in failing to make specific findings as to the amount of ecstasy involved in defendant’s offense. U.S. v. Forrester, 616 F.3d 929 (9th Cir. 2010).
9th Circuit says ecstasy amendment was not retroactive. (252) On June 6, 2001, the Sentencing Commission published temporary amendments to the guidelines that increased the penalty for offenses involving ecstasy. The Commission stated that the amendments were retroactive to May 1, 2001. On November 1, 2001, the Commission made the amendment permanent. The Ninth Circuit held that the Commission could not make the temporary amendment retroactive to May 1, 2001, and that the amendment became effective only on June 6, 2001, when it was promulgated. U.S. v. Forrester, 616 F.3d 929 (9th Cir. 2010).
9th Circuit says end date of conspiracy with ex post facto concerns is not “relevant conduct.” (252) On June 6, 2001, the Commission amended the Guidelines to increase the penalties for ecstasy. Defendant pleaded guilty to an indictment that alleged that he participated in a conspiracy to distribute ecstasy that continued until October 18, 2001, and the court imposed a sentence under the June 6, 2001 amendment. The Ninth Circuit reversed, holding that that defendant’s guilty plea did not constitute an admission that he engaged in conduct that occurred after the effective date of the new amendment. Moreover, on remand, the government would not be allowed to show that the conspiracy continued after the effective date of the amendment, because unlike an overt act, the end date of a conspiracy with ex post facto concerns is not “relevant conduct” under guideline section 1B1.3. Judge Hall dissented from this remand limitation. U.S. v. Forrester, 616 F.3d 929 (9th Cir. 2010).
9th Circuit estimates drug quantity based on lab capacity over time. (252) The district court doubled its estimate of defendants’ lab capacity based on its finding that defendants manufactured methamphetamine on at least two occasions. Defendants argued that this was error because U.S.S.G. § 2D1.1, Application Note 12 says the sentence should be based on lab capacity—which the defendants argued meant the amount of methamphetamine that could be manufactured at one time. The Ninth Circuit found this definition too narrow, noting that the cases make it clear that the “capacity” of a drug lab is the amount of drugs which could have been produced during the course of the offense. The plain language of Application Note 12 suggests that lab capacity is merely one of the factors which the district court may consider. There is no suggestion that “capability” is the “end point” of the district court’s calculations. U.S. v. August, 86 F.3d 151 (9th Cir. 1996).
9th Circuit upholds estimate of quantity of methamphetamine produced by lab. (252) The Ninth Circuit noted that it has specifically allowed calculating “potential” methamphetamine based on seized precursor chemicals, such as ephedrine. It has “also approved a sentencing court’s reliance on expert testimony that estimates production capability, even when the expert must assume the availability of precursor chemicals that were not seized or were found in short supply.” In this case, the government seized only empty ephedrine containers and no actual precursor chemicals. Nevertheless, the sentencing court’s estimate was upheld based on expert testimony that the chemical by-products found in the shed were characteristic of the red phosphorus method of producing methamphetamine. Since the court could estimate drug quantity, it did not err in refusing to depart by analogy to guideline § 2D1.11 which applies to convictions for possession of listed chemicals. U.S. v. Basinger, 60 F.3d 1400 (9th Cir. 1995).
9th Circuit extrapolates meth quantity from amount of precursor chemicals. (252) Defendant argued that guideline § 2D1.4 and Application Note 2 violated due process because his sentence was based on the amount of precursor chemicals seized, but no actual lab was found. The Ninth Circuit rejected the argument, ruling that neither immediate nor ongoing lab production was required to trigger extrapolation of lab capacity under § 2D1.4. The court also found no merit in defendant’s argument that he should have been sentenced for only the 3.3 grams of methamphetamine found in his apartment, rather than the estimated 19.5 kilograms producible from the chemicals he was gathering together. U.S. v. Foster, 57 F.3d 727 (9th Cir. 1995).
9th Circuit upholds quantity determination in meth case where only ephedrine sold. (252) Defendant was convicted of attempting to sell methamphetamine based on his sale of ephedrine to an undercover agent. The sentencing court based the sentence on the amount of methamphetamine that was the subject of the attempt rather than the amount of ephedrine actually sold. The 9th Circuit found it was proper to apply §2D1.1 rather than the precursor chemical guideline in §2D1.11. Note 12 of §2D1.1 addresses attempted sales that are not completed and provides that the weight under negotiation shall be used to calculate the weight. Here, defendant agreed to sell the undercover officer 1/4 pound of methamphetamine. Section 2D1.11 did not apply because there was no evidence defendant intended the ephedrine to be used in the manufacture of a controlled substance. U.S. v. Steward, 16 F.3d 317 (9th Cir. 1994).
9th Circuit upholds sentence under 2D1.1 rather than 2D1.11 for attempt to manufacture meth. (252) Defendant pled guilty to conspiracy to possess listed chemicals with intent to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(d)(2). He argued that the court erred by calculating the base offense level under the guideline for unlawful manufacturing, section 2D1.1, instead of the guideline for possession of listed chemicals, section 2D1.11. In an extensive discussion, the 9th Circuit found that defendant attempted to manufacture methamphetamine by possessing listed chemicals and glassware and promising to sell methamphetamine for $10,000 a pound. Guideline section 2D1.4 states that “the offense level should be the same as if the object of the . . . attempt had been completed.” This directs that defendant’s offense level be calculated under section 2D1.1, the guideline for unlawful manufacturing. Since that offense level was higher than the guideline for possession of listed chemicals, 2D1.11, the district court did not err in basing defendant’s sentence on 2D1.1. U.S. v. Acuna, 9 F.3d 1442 (9th Cir. 1993).
9th Circuit bases sentence on amount of chemicals during conspiracy, even though purchased earlier. (252) Defendant, who operated a chemical supply company, claimed that he purchased almost all of the phenylacetic acid before the conspiracy began, so his sentence should only have been based on the amount he purchased afterward. The 9th Circuit rejected the argument, noting that defendant was conspiring to manufacture and distribute methamphetamine during the time of the charged conspiracy. “That he bought the chemicals earlier is of no import.” U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).
9th Circuit upholds agent’s estimate of methamphetamine to be produced from precursor chemicals. (252) Although the guidelines did not provide a conversion table at the time defendant was sentenced, they did provide for an approximation to be made, in section 2D1.4 Commentary Note 2. Here, the agent’s conservative estimate that one could manufacture methamphetamine equal to one-fourth the quantity of precursor chemicals was satisfactory. Defendant had purchased such a huge quantity of precursor chemicals that even if one used a much lower conversion rate, one would still arrive at the highest base offense level of 36. U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).
9th Circuit uses guideline for conspiracy to manufacture meth, not listed chemical guideline. (252) Defendant was convicted of conspiracy to manufacture methamphetamine-amine in violation of 21 U.S.C. section 841(a), for his role in brokering the sale of ephedrine. He argued that the district court should have applied guideline section 2D1.11, which covers possession of listed chemicals, rather than 2D1.1, covering manufacturing a controlled substance. The 9th circuit found no error, noting that defendant had been convicted of conspiracy to manufacture methamphetamine, not conspiracy to possess a listed chemical. Appendix 8 of the guideline manual lists section 2D1.1 as the applicable guideline, and that section was properly applied. U.S. v. Myers, 993 F.2d 713 (9th Cir. 1993).
9th Circuit upholds extrapolation to determine capacity of methamphetamine lab. (252) Two defendants were convicted of conspiracy to manufacture and distribute methamphetamine and related substantive offenses. In determining the offense level, the district court relied on the glassware and accoutrements and concluded that the lab had a 9 kilo potential. The 9th Circuit upheld these findings, concluding that the extrapolation was reasonable based on evidence of a very well-equipped lab. The array of glassware and chemicals indicated the conspirators used more than one method and manufactured more than one type of methamphetamine. The absence of a required chemical did not preclude the assumption it could have been obtained and there was evidence the conspirators intended to secure any missing substances. U.S. v. Williams, 978 F.2d 1133 (9th Cir. 1992).
9th Circuit says calculation of lab capacity is not limited by least abundant precursor chemical. (252) Defendant argued that the court’s calculation of lab capacity is limited by the quantity of the least abundant precursor chemical. The 9th Circuit rejected the argument, holding that the court “properly calculated the capacity of each lab by looking at all chemicals found there.” U.S. v. Lillard, 929 F.2d 500 (9th Cir. 1991).
9th Circuit upholds finding that methamphetamine lab was capable of producing 18 pounds. (252) The government’s expert estimated that defendant’s lab had already produced 12 pounds of methamphetamine and was capable of producing an additional 6 pounds. He based this conclusion of his analysis of the chemicals and materials present at the lab at the time of the arrest. Defendant did not challenge any of the facts underlying the government’s analysis. Instead his expert drew different inferences from the facts. Under the circumstances, the 9th Circuit ruled that the trial court’s finding was not clearly erroneous. U.S. v. Upshaw, 918 F.2d 789 (9th Cir. 1990).
9th Circuit affirms reliance on lab capacity to determine quantity of drugs. (252) When defendant’s methamphetamine laboratory was raided, only a small quantity of the drug was found. Defendant admitted producing four pounds of methamphetamine during the period for which he was charged, but the government informed the probation office that the lab was capable of producing twelve pounds. The sentencing judge calculated defendant’s sentence using the twelve-pound figure. The 9th Circuit concluded that the amount of drugs seized did not “reflect the scale of the offense”; accordingly, commentary to the guidelines specifically authorized consideration of the capacity of the lab in determining “the amount [of drugs] made . . . [or] the amount that could have been made, had the police not discovered the laboratory.” U.S. v. Putney, 906 F.2d 477 (9th Cir. 1990).
10th Circuit remands where court neglected 2D1.11 in listed chemical case. (252) Defendant pled guilty to possessing phenylacetic acid, a listed chemical but not a controlled substance. The district court applied 2D1.1, but the 10th Circuit reversed. 2D1.11 is the appropriate guideline in cases involving listed chemicals. Though that guideline includes a cross-reference to 2D1.1 for cases in which the defendant was attempting to manufacture a controlled substance, the district court’s error may have been material, for in cases in which the defendant cannot fairly be charged with the entire quantity of controlled substance, 2D1.1 could yield a lower result than 2D1.11 would yield. U.S. v. Wagner, 994 F.2d 1467 (10th Cir. 1993), superseded on other grounds by statute as stated in U.S. v. Smith, 433 F.3d 714 (10th Cir. 2006).
10th Circuit upholds calculation of laboratory capacity despite missing chemicals. (252) Defendant argued that it was improper to calculate his sentence based on his methamphetamine laboratory’s productivity, since it was impossible for him to produce any methamphetamine because one of the necessary precursor chemicals was missing. The 10th Circuit held that it was proper to base defendant’s sentence on the amount of methamphetamine the lab could have produced had the missing chemical been available. U.S. v. Sturmoski, 971 F.2d 452 (10th Cir. 1992).
10th Circuit affirms determination of laboratory capacity based on hearsay in presentence report. (252) To establish the lab’s capacity, the presentence report noted that a 22-liter flask and heating mantle were seized from the lab. The report then quoted a DEA chemist, who said that it is “customary” to half-fill a flask with liquid because a heating mantle heats only one-half of the flask. Based on the chemist’s statements, the report then concluded that the lab could manufacture 2.3 kilograms of methamphetamine at a time. Defendant offered no evidence that contradicted the presentence report, nor did he present an expert of his own. The figures were supported by the trial testimony of a DEA expert who identified the flask found in defendant’s home as a 22-liter, round-bottom cook flask that is used with a heating mantle and other equipment to produce methamphetamine. The 10th Circuit affirmed, ruling that because the presentence report figures were supported by trial testimony, the district court’s reliance on those figures did not violate due process. U.S. v. Short, 947 F.2d 1445 (10th Cir. 1991).
10th Circuit upholds use of precursor drugs purchased by defendant to calculate actual amount of drug defendant produced. (252) The 10th Circuit upheld the district court’s use of precursor chemicals to calculate the quantity of methamphetamine defendant produced. The 29-kilogram figure was supported by evidence that defendant purchased 37 kilograms of the precursor chemical L-ephedrine, and a DEA chemist’s testimony that defendant could have produced approximately 29 kilograms of methamphetamine from that quantity of the precursor chemical. U.S. v. Andersen, 940 F.2d 593 (10th Cir. 1991).
10th Circuit affirms estimation of drugs defendant was capable of producing despite missing ingredients. (252) Because other ingredients were necessary before a final product could be produced, defendant argued that it was improper for the district court to determine for sentencing purposes that he could have produced 41.7 pounds of methamphetamine. The 10th Circuit found no merit in this contention, finding this issue controlled by U.S. v. Havens, 910 F.2d 703 (10th Cir. 1990). Defendant’s argument that the guidelines limit a court’s ability to estimate producible quantities to those instances where a “laboratory” is seized was also without merit. U.S. v. Leopard, 936 F.2d 1138 (10th Cir. 1991).
10th Circuit affirms use of stipulated projections of drug quantities. (252) Defendant contended that only the actual quantity of methamphetamine discovered at his laboratory should have been used to calculate his offense level, rather than the stipulated projections of drug quantities which could have been produced at the lab. The 10th Circuit affirmed the use of the stipulated projections of drug quantities. The stipulation was based on expert testimony estimating the drug quantity in terms of the amount capable of being produced, which is an acceptable method of computation under the guidelines and by the courts. U.S. v. Haar, 931 F.2d 1368 (10th Cir. 1991).
10th Circuit upholds estimating quantity of producible drugs. (252) Defendant was arrested in possession of large amounts of all of the chemical ingredients necessary for producing methamphetamine, except for one ingredient and a heating source. Defendant pled guilty to attempting to manufacture methamphetamine, and the district court sentenced him on the basis of expert testimony as to the ultimate amount of methamphetamine that defendant could produce when the additional ingredient and heating source were added to the chemicals in his possession. The 10th Circuit held that a district court may, upon proper testimony, estimate the ultimate quantity of producible drugs in defendant’s possession. The 10th Circuit rejected defendant’s argument that this procedure was too speculative and therefore violated due process, even though two defendants found with identical amounts of precursor chemicals could be found guilty of attempted manufacture of widely differing quantity of drugs. “It is not a denial of due process to determine facts based on estimates derived from expert testimony.” U.S. v. Havens, 910 F.2d 703 (10th Cir. 1990).
11th Circuit holds that court was required to consider weight of liquid LSD rather than weight of pure LSD alone. (252) Defendant was convicted of conspiracy charges relating to the distribution of LSD in liquid form. The weight of the pure LSD was 0.1263 grams, the equivalent of 2526 dosage units. The aggregate weight of the water and pure LSD was 103.7 grams. Defendant argued that only the weight of the pure LSD alone, not the liquid LSD, could be used in determining his sentence under the guidelines. He contended that the LSD was in an intermediate wholesale distribution form, and was much too bulky and too diluted to be marketed directly to the consumer. The Eleventh Circuit held that the district court should use the weight of the liquid LSD in applying defendant’s sentence. Under Chapman v. U.S., 500 U.S. 453 (1991), liquid LSD can be characterized as the carrier medium of choice at the wholesale level. LSD on blotter paper, LSD in gel form or LSD on a sugar cube can be characterized as the carrier mediums of choice at the retail end of the distribution chain. LSD dealers are free to choose their own carrier medium and minimize their potential sentences. U.S. v. Grant, 397 F.3d 1330 (11th Cir. 2005).
11th Circuit bases sentence on weight of pure LSD in liquid, rather than weight of liquid. (252) Unless otherwise specified, the weight of a controlled substance in USSG § 2D1.1(c) refers to the weight of any “mixture or substance” containing a detectable amount of the controlled substance. However, in cases involving LSD in a carrier medium, the weight of the medium is not used, but rather, each dose of LSD is treated as equal to 0.4 milligrams. USSG § 2D1.1(c)(H). However, LSD in a liquid solution is more problematic, because a liquid solution is not considered a carrier medium. See Note 16 to § 2D1.1(c) (upward departure may be warranted with “liquid LSD (LSD that has not been placed onto a carrier medium)” because the weight of the LSD alone may not reflect seriousness of offense). The Eleventh Circuit, agreeing with the Fourth Circuit in U.S. v. Turner, 59 F.3d 481 (4th Cir. 1995), held that the weight of the pure LSD alone, rather than the weight of the liquid, should have been used to calculate defendant’s offense level. The term “liquid LSD” in the guidelines refers to pure LSD dissolved or suspended in a liquid solvent, which was the case here. At resentencing, the court should determine the amount of pure LSD involved and then consider whether an upward departure to reflect the seriousness of the offense was necessary. U.S. v. Camacho, 261 F.3d 1071 (11th Cir. 2001).
11th Circuit rejects departure for pharmacist who knowingly filled forged prescriptions. (252) Defendant, a registered pharmacist, knowingly filled numerous forged prescriptions. Under U.S. v. Lazarchik, 924 F.2d 211 (11th Cir. 1991), a court must base a sentence on the total weight of the pills distributed, rather than the weight of the drug itself. The district court departed downward because: (a) defendant’s conduct was not the target of § 841(a)(1); (b) defendant lost his pharmacist’s license; (c) the computation of the drug weights created a disparity when compared to drugs that are not mixed with other compounds; (d) defendant made only a nominal profit; and (e) defendant had a medical problem that “apparently affected his mental functioning.” The Eleventh Circuit found the first four grounds did not justify a departure and the court did not make adequate findings to support the fifth. Knowingly filling phony prescriptions for persons with no medical need for the drugs falls within the heartland of a drug trafficking offense. A departure based on defendant’s loss of his pharmacist license would negate the enhancement for abuse of his position as a pharmacist. The third ground for departure directly contradicts the rule in Lazarchik. It is not unusual for drug defendants to have difficulty in making a profit. Finally, a “significantly reduced mental capacity” only warrants a departure under § 5K2.13 if linked to the commission of the offense. The district court made no specific findings that defendant’s diminished capacity contributed to his commission of the crime. U.S. v. Steele, 178 F.3d 1230 (11th Cir. 1999).
11th Circuit upholds one-to-one ratio between phenylacetic acid and methamphetamine. (252) Defendant was involved in a scheme to transport phenylacetic acid (“PA”), a listed precursor chemical used in the manufacture of methamphetamine, from Florida to Oregon. The Eleventh Circuit upheld the one-to-one equivalency ratio between the PA ordered and methamphetamine attributed to defendant for sentencing purposes. The only evidence on this issue was the trial testimony of a DEA chemist who stated that one kilogram of PA would be converted to about 1.1 kilograms of methamphetamine. Defendant did not contradict this testimony or offer an alternative method for computing the ratio of PA to methamphetamine. U.S. v. Ramsdale, 61 F.3d 825 (11th Cir. 1995).
11th Circuit remands because sentencing court did not state basis for determining drug quantity. (252) Defendant was convicted of possession of a listed chemical with intent to manufacture a controlled substance. He argued that a DEA chemist’s testimony on the amount of methamphetamine that could have been produced by the phenylacetic acid possessed by defendant was too speculative. The 11th Circuit remanded because the district court did not state the testimony or evidence it relied upon in reaching its drug quantity determination. The record did not show the factors considered by the sentencing court in making its drug quantity determination or the evidentiary basis for the computation. U.S. v. Hudacek, 24 F.3d 143 (11th Cir. 1994) (en banc), vacating U.S. v. Hudacek, 7 F.3d 203 (11th Cir. 1993).
11th Circuit upholds determination of laboratory capacity based on varying estimates. (252) The 11th Circuit upheld the district court’s determination that 1.9 kilograms of methamphetamine were producible from defendant’s laboratory. The district court was presented with a range of estimates based on the chemicals received during the course of the conspiracy. At the low end was testimony of defense experts that 150 grams were producible using one method and 1.5 kilograms using a more productive method. At the high end a DEA chemist estimated 19.1 kilograms at 100 percent yield and 9.55 kilograms at 50 percent yield. The district court properly used expert testimony about the chemicals acquired for use in the conspirators’ lab to approximate the conspiracy’s capacity for production of methamphetamine. U.S. v. Carroll, 6 F.3d 735 (11th Cir. 1993).
11th Circuit approves consideration of projected yield from methamphetamine oil. (252) The 11th Circuit approved the district court’s consideration at sentencing of 4.99 kilograms of methamphetamine, which represented the projected yield of 4.12 kilograms of methamphetamine oil that was found in defendant’s car. There is no principled distinction for sentencing purposes between “precursor chemicals” destined for conversion into a controlled substance and combinations of those chemicals that have been partially processed and are closer to the finished product at the time they are discovered. U.S. v. Newsome, 998 F.2d 1571 (11th Cir. 1993).
11th Circuit uses guideline for attempt to manufacture methamphetamine for possession of phenylacetic acid. (252) Defendant was convicted of possessing phenylacetic acid, with knowledge that it would be used to manufacture methamphetamine, in violation of 21 U.S.C. section 841(d)(2). Applying U.S.S.G. 2D1.1, the district court found that 100 pounds of phenylacetic acid could yield approximately 30 kilograms of methamphetamine, and used this to arrive at a base offense level of 36. The 11th Circuit affirmed the result, but used a different methodology. The version of the guidelines applicable to defendant did not address violations of section 841(d)(2). Section 841(d)(2) makes an independent crime out of what would otherwise be an attempt to manufacture methamphetamine under 21 U.S.C. section 846. Since guideline section 2D1.4 governs attempts to manufacture methamphetamine and uses the same Drug Quantity Table as section 2D1.1, it yielded the same offense level as the district court’s approach. U.S. v. Hyde, 977 F.2d 1436 (11th Cir. 1992).
D.C. Circuit upholds finding that three defendants could foresee all PCP sold by street gang. (252) Three defendants were members of the M Street Crew, which operated a massive drug ring in Washington, D.C. The D.C. Circuit upheld the district court’s decision to attribute to each defendant 30 or more kilograms of PCP. The court could properly find that more than 30 kilograms of PCP were involved in the M Street Crew conspiracy, and that this quantity was reasonably foreseeable to each defendant individually. Defendant Robinson was engaged in selling activities almost daily, and was the source of PCP when Franklin, the conspiracy’s leader, was not available. Robinson had regular and constant communications with Franklin about the quantity of PCP on the street. Defendant Wilson was involved in the day-to-day activities of the Crew, and had close proximity to Franklin, and was involved in directing sales. Although defendant Blackson was incarcerated following his arrest, he never withdrew from the conspiracy, and immediately went back to trafficking after his release, so that he knew the full amount of PCP sold by the M Street Crew, including the full amount sold while he was incarcerated. U.S. v. Wilson, 605 F.3d 985 (D.C. Cir. 2010).
D.C. Circuit rejects assumption that heroin was diluted fourfold before street distribution. (252) To determine drug quantity, the district court assumed that all of the heroin in the conspiracy was of at least 79% purity. Second, the court multiplied by four the total quantity of heroin that Lama delivered to defendant over the course of the conspiracy, on the theory that the heroin would have been diluted and multiplied fourfold for street distribution. The D. C. Circuit found no error in the court’s assumption that all of heroin that Lama delivered to defendant was of the uniformly high purity of 79% as the search recovered in a search of defendant’s mother’s house. Defendants did not offer any plausible evidence that the purity levels during the course of the conspiracy were lower than 79%. Defendant’s recorded complaints about the quality of the deliveries and Lama’s price reduction did not establish that the quality of any shipment was lower than 79%, merely that defendant was unhappy with the purity level of the shipments. However, the court erred it finding that the conspirators routinely diluted the heroin fourfold to a purity level of 20%. The only evidence of the purity level of the heroin distributed on the street was 746 baggies of 27-29% pure heroin that was seized by police. Thus, the district court had little basis for assuming that the heroin was diluted to 20% purity. U.S. v. Stover, 329 F.3d 859 (D.C. Cir. 2003).
D.C. Circuit rejects resentencing where sentence was not based on amended provision. (252) Defendant filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his 1991 sentence based on Amendment 484. Effective November 1993, Amendment 484 altered Note 1 to USSG § 2D1.1 to exclude from drug quantities “materials that must be separated from the controlled substance before the controlled substance can be used.” The D.C. Circuit held that defendant was not entitled to be resentenced under Amendment 484 because he was not sentenced under Note 1, the provision altered by the amendment. Rather, defendant was sentenced under Note 12, which permits a court to estimate drug quantity when the amount of drugs seized does not reflect the scale of the offense. The district court based defendant’s sentence not on the amount of PCP or PCC he possessed, but rather on his capacity to produce a total of 897 grams of pure PCP. The 35 grams of pure PCP seized from defendant did not reflect the scale of the PCP conspiracy to which he pled guilty. Accordingly, the district court considered the capability of defendant’s operation, which was evidenced by the amount of PCC found in his possession. The district court did not include the weight of the PCC in the weight of the “mixture or substance” that was used to determine defendant’s sentence. Hence, neither Note 1 nor Amendment 484 applied. U.S. v. Young, 247 F.3d 1247 (D.C. Cir. 2001).
Commission makes 1 gram of BZP equivalent to 100 grams of marijuana. (252) Responding to concerns raised by the Second Circuit and others regarding offenses involving BZP (N- Benzylpiperazine), a Schedule I stimulant, the Commission concluded that BZP is a stimulant with pharmacologic properties similar to that of amphetamine, but is only one-tenth to one-twentieth as potent as amphetamine, depending on the particular user’s history of drug abuse. Accordingly, the Commission specified that 1 gram of BZP equals 100 grams of marijuana. This corresponds to one-twentieth of the marijuana equivalency for amphetamine, which is 1 gram of amphetamine equals 2 kilograms (or 2,000 grams) of marijuana. Amendment 762, effective Nov. 1, 2012.
Commission confirms increased penalties for steroids. (252) The Commission made permanent a March 27, 2006 amendment increasing the penalties for anabolic steroids in § 2D1.1. Amendment 687, effective November 1, 2006.
Commission increases penalties for GHB, analogues, and mass marketing of drugs or listed chemicals. (252) Implementing a directive in the Protect Act, the Commission provided an approximate five-year term (base offense level 26) for distribution of three gallons of GHB, a “date rape” drug, and an approximate ten-year penalty (offense level 32) for distributing thirty gallons of GHB. In additional Application Note 5 to § 2D1.1 was amended to provide a uniform mechanism for determining sentences in cases involving analogues of controlled substances or substances not specifically referenced in the guideline. The Commission also provided a two-level enhancement in § 2D1.1, 2D1.11 and 2D1.12 for mass marketing of a controlled substance, listed chemical, or prohibited equipment through the use of an interactive computer service. Amendment 667, effective November 1, 2004.
Commission bases oxycodone sentence on actual weight, not weight of pill. (252) Before this amendment, the penalties for oxycodone trafficking were based on the entire weight of the pill. However, the percentage of oxycodone varies greatly in the two most popular pills in which it is found, Percocet and OxyContin. To remedy this disproportionality, the amendment changed the Drug Equivalency Tables in § 2D1.1 to provide sentences for oxycodone offenses using the weight of the actual oxycodone instead of the weight of the entire pill. This keeps penalties for offenses involving 10 mg. OxyContin pills identical to levels that existed prior to the amendment, and decreases somewhat the penalties for offenses involving Percocet. Amendment 657, effective November 1, 2003.
Commission modifies table for ecstasy pills. (252) The Commission amended the Typical Weight Per Unit (Dose, Pill, or Capsule) Table in the commentary to § 2D1.1 to add a reference for MDMA at 250 milligrams per pill, and to revise the typical weight for MDA to 250 milligrams of the mixture or substance containing the controlled substance. Before this amendment, the Table listed the typical weight of MDA as 100 milligrams of the actual controlled substance. In its “Reasons for Amendment,” the Commission relied on information provided by the Drug Enforcement Administration that ecstasy usually is trafficked and used as MDMA in pills weighing approximately 250 to 350 milligrams. The Commission said that the absence of MDMA from the Table and the listing for MDA of an estimate of the actual weight of the controlled substance created the potential for misapplying the MDA estimate in a case in which MDMA is involved, which could result in underpunishment in some ecstasy cases. Amendment 640, effective November 1, 2002.
Commission increases penalties for “date rape” drugs. (252) Implementing recent legislation regarding “date rape” drugs, the Commission eliminated the maximum base offense level of 20 in the Drug Quantity Table of § 2D1.1 for Schedule I and II depressants, including the “date rape” drugs GHB and Flunitrazepam. Amendment 623, effective November 1, 2001.
Commission adopts emergency amendment increasing penalties for “ecstasy.” (252) Effective May 1, 2001, the Commission amended the Drug Equivalency Tables in § 2D1.1, Application Note 10, to increase substantially the marijuana equivalencies for “ecstasy” and any other controlled substance that is marketed as “ecstasy” and has either a chemical structure similar to MDMA or an effect on the central nervous system substantially similar to or greater than MDMA. Under the Drug Equivalency Tables, one gram of powder cocaine has a marijuana equivalency of 200 grams. The new amendment sets the marijuana equivalency for one gram of “ecstasy” at 500 grams. The new amendment was also made permanent in a proposed November 1, 2001 amendment. May 1, 2001 Amendment 609, repromulgated as Amendment 621, effective November 1, 2001.
Commission provides a new Chemical Quantity Table in § 2D1.11 for precursor chemicals. (252) In response to a directive in the Methamphetamine Anti-Proliferation Act of 2000, the Commission adopted an emergency amendment increasing the punishment for trafficking in List I chemicals. The amendment provides a new Chemical Quantity Table in § 2D1.11 specifically for ephedrine, pseudoephedrine, and phenylpropanolamine (PPA). The table ties the base offense levels for these chemicals to the base offense levels for methamphetamine (actual) set forth in § 2D1.1, assuming a 50% actual yield of the controlled substance from the chemicals. The new Chemical Quantity Table has a maximum base offense level of level 38 (as opposed to a maximum base offense level of 30 for all other precursor chemicals). The amendment also eliminates the Ephedrine Equivalency Table in § 2D1.11, and in its place, provides a general rule for the court to determine the base offense level in cases involving multiple precursors. The Commission repromulgated this as a permanent amendment adding GBL and GHB as a List I chemical, and adding Iodine to the chemical quantity table in § 2D1. May 1, 2001 Amendment 611, modified by Amendment 625, effective November 1, 2001.
Commission sets penalties for stealing or transporting anhydrous ammonia. (252) Congress recently added 21 U.S.C. § 864, making it a crime to steal or transport across state lines anhydrous ammonia knowing, intending, or having reasonable cause to believe that it will be used to make a controlled substance. The new offense is punishable by not more than four years’ imprisonment (with enhanced penalties for certain prior convictions). The Commission established the penalties for the new section by referencing it in §2D1.12 (Unlawful Possession, Manufacture, Distribution, or Importation of Prohibited Flask or Equipment). Amendment 626, effective November 1, 2001.
Commission proposes increased penalties for GBH, GBL, and iodine. (252) This proposed amendment implements the Date-Rape Prohibition Act of 2000, Pub. L. 106-172, which provides the emergency scheduling of GBH as a Schedule I Controlled Substance when the drug is used illicitly. The proposed amendment eliminates the maximum base offense level of level 20 in the Drug Quantity Table of § 2D1.1 for Schedule I and II depressants (including GBH). The same change is made with respect to Flunitrazepam, which, for sentencing purposes, is tied to Schedule I and II depressants. The proposed amendment also amends the Chemical Quantity Table in § 2D1.11 to include GBL, a precursor for GBH, as a List I chemical, and also adds iodine to the Chemical Quantity Table as a List II chemical. 2001 Proposed Amendment 11.
Commission increases Chemical Quantity Table by two levels effective May 1, 1997. (252) Section 302 of the comprehensive Methamphetamine Control Act of 1996 raised the statutory maximum penalties for possession and importation of precursor chemicals under 21 U.S.C. 841(d) and 960(d) from 10 to 20 years’ imprisonment. The Act also instructed the Commission to increase the guidelines by at least two levels, and to calculate the offense levels proportionately on the basis of the quantity of controlled substance that reasonably could be manufactured from the precursor chemical. In response, the Commission calculated this amount based on 50% of the theoretical yield, and adjusted the offense level in § 2D1.1 downward by eight levels from the level in the drug quantity table, § 2D1.1. The Commission also raised the penalties for List 1 chemicals in the Chemical Quantity Table, § 2D1.11(d) by two levels. The offense level for List 2 chemicals will remain the same. The Commission designated this as an emergency amendment, effective May 1, 1997, and it will also be sent to Congress as a non-emergency amendment effective November 1, 1997. The full text of the amendment is available at 60 Crim. L. Rptr. 2087 (February 26, 1997), and on the Commission’s web site.
Commission includes pills containing ephedrine as a listed chemical in §2D1.11. (252) In Amendment 519, effective November 1, 1995, the Commission amended guideline §2D1.11(d) to reflect changes required by the Domestic Chemical Diversion Act of 1993 which changed the designations of listed chemicals and added pills containing ephedrine as a list I chemical. Pills containing ephedrine previously were not covered by the statute and thus legally could be purchased “over the counter.” To avoid unwarranted disparity, this amendment adds a note to §2D1.11 providing that the amount of actual ephedrine contained in a pill is to be used in determining the offense level. The act also removes three chemicals from, and adds two others to, the listed chemicals controlled under the Controlled Substances Act.
Commission makes precursor chemical guideline retroactive. (252) On November 1, 1991, the Sentencing Commission adopted amendment 371, which created a new guideline, 2D1.11, covering possession and distribution of listed precursor chemicals with intent to manufacture a controlled substance, in violation of 21 U.S.C. §§ 841(d) and 960(d). At its July 26, 1994 meeting, the Sentencing Commission, on a 4-1 vote, made this amendment retroactive under § 1B1.10. This means that prisoners whose sentences would have been lower if the 1991 guideline had been applied to them may move to have their sentences reduced pursuant to 18 U.S.C. § 3582.
Commission creates new guideline for precursor chemicals. (252) Effective November 1, 1991, the Commission amended the guidelines to create a new guideline to address violations of the Chemical Diversion and Trafficking Act involving listed precursor and essential chemicals used in the manufacture of controlled substances. The new section, 2D1.11, bases the offense level on a Chemical Quantity Table which starts at level 12 and is capped at level 28. Another new section, 2D1.12 provides guidelines for offenses involving prohibited flasks or equipment. Violations of record keeping are addressed in new guidelines sections 2D1.13 and 2D3.5.
Commission creates new guideline for precursor chemicals. (252) Effective November 1, 1991, the Commission amended the guidelines to create a new guideline to address violations of the Chemical Diversion and Trafficking Act involving listed precursor and essential chemicals used in the manufacture of controlled substances. The new section, 2D1.11, bases the offense level on a Chemical Quantity Table which starts at level 12 and is capped at level 28. Another new section, 2D1.12 provides guidelines for offenses involving prohibited flasks or equipment. Violations of record keeping are addressed in new guidelines sections 2D1.13 and 2D3.5.