United States District Court, D. New Hampshire
McCAFFERTY, UNITED STATES DISTRICT JUDGE
Michael Bean is awaiting sentencing on one count of
conspiracy to distribute and possess with intent to
distribute 50 grams or more of methamphetamine in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii). He
moves this court to issue an order declaring a categorical
policy disagreement with the “purity-driven”
methamphetamine sentencing guidelines. The government
objects. The court heard oral argument on the motion on
January 14, 2019. For the following reasons, the court grants
a four-defendant methamphetamine conspiracy case. Bean
pleaded guilty to Count 1 of the multi-count second
superseding indictment (doc. no. 41) on November 21, 2018.
Count 1 charges him with conspiracy to distribute and possess
with intent to distribute 50 grams or more of methamphetamine
in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(viii). Bean stipulated in his plea agreement
that the conduct underlying this charge involved his receipt
of parcels of methamphetamine through the mail from Nevada,
distribution of methamphetamine to buyers in New Hampshire,
and transfer of proceeds through the mail or by wire transfer
back to Nevada to purchase more drugs. In the plea agreement,
the parties agreed that the government would recommend that
Bean be sentenced at the bottom of the applicable advisory
sentencing guidelines range and that the “quantity of
actual Methamphetamine for which [Bean] is accountable at
sentencing is at least 500 grams but less than 1.5
kilograms.” Doc. no. 79 at 6.
asks this court to declare a categorical policy disagreement
with the guidelines applicable to methamphetamine offenses,
which treat quantities of actual methamphetamine and
“ice” more harshly than the same quantities of a
mixture containing a detectable amount of methamphetamine.
Bean requests that the court apply the guidelines for
methamphetamine mixtures to all methamphetamine offenses.
Bean's sentencing is scheduled for March 5, 2019.
United States v. Booker, 543 U.S. 220, 245 (2005),
the Supreme Court held that the United States Sentencing
Guidelines (“guidelines”) are “effectively
advisory” and that they “serve as one factor
among several courts must consider in determining the
appropriate sentence.” Kimbrough v. United
States, 552 U.S. 85, 90 (2007). Although advisory, the
guidelines remain the “starting point and the initial
benchmark” for sentencing. Gall v. United
States, 552 U.S. 38, 49-50 (2007); see also United
States v. Millan-Isaac, 749 F.3d 57, 68 (1st Cir. 2014)
(holding district court's failure to calculate
defendant's guidelines sentence range is “serious
guidelines cannot be the court's only consideration,
however. Gall, 552 U.S. at 49. The sentencing court
must also consider the sentencing factors in 18 U.S.C. §
3553(a), including the nature of the offense, the history and
characteristics of the defendant, and the goals of deterrence
and protection of the public to determine what sentence is
“sufficient, but not greater than necessary.” 18
U.S.C. § 3553(a). The court must make an
“individualized assessment based on the facts
presented” about whether to vary upward or downward
from the guidelines sentencing range. See Gall, 552
U.S. at 50. In doing so, the court may not presume that the
guidelines range is reasonable. Id. at 49-50.
courts are entitled to vary from the guidelines sentencing
range not only on the basis of individualized determinations
specific to each defendant, but also on the basis of a
categorical policy disagreement with the guidelines
themselves. The Supreme Court held in Kimbrough that
a district court could deviate on policy grounds from the
100:1 ratio for crack and powder cocaine in the guidelines.
Kimbrough, 552 U.S. at 106-07, 110. The Court
clarified this holding in Spears v. United States,
555 U.S. 261 (2009). In Spears, the Supreme Court
stated that Kimbrough recognized “district
courts' authority to vary from the crack cocaine
Guidelines based on [a] policy disagreement with
them, and not simply based on an individualized determination
that they yield an excessive sentence in a particular
case.” Spears, 555 U.S. at 264.
First Circuit has interpreted Kimbrough as
empowering a sentencing court to disagree with guidelines
other than the crack cocaine guidelines that were at issue in
that case. United States v. Stone, 575 F.3d 83, 89
(1st Cir. 2009). In fact, a sentencing court commits
procedural error if it fails to acknowledge its discretion to
vary from the guidelines sentencing range based on a
categorical policy disagreement. Id.
guidelines at issue here are those determining a
defendant's base offense level according to the quantity
and purity of methamphetamine involved. See U.S.S.G.
§ 2D1.1(c) (drug quantity table). Base offense levels
for federal drug crimes are calculated according to the Drug
Quantity Table in the guidelines, which uses a graduated
scale based on the type and quantity of drugs involved.
See id. Methamphetamine is quantified based on
purity. See id.
guidelines refer to three categories of methamphetamine
according to relative purity: methamphetamine,
methamphetamine (actual), and ice. See U.S.S.G.
§ 2D1.1(c), Notes to Drug Quantity Table (B)-(C).
“Methamphetamine” refers to the gross weight of a
mixture containing a detectable amount of methamphetamine
(hereinafter referred to as “methamphetamine
mixture”). See id. at Notes to Drug Quantity
Table (A). “Methamphetamine (actual)” denotes the
weight of actual methamphetamine contained in the mixture
(hereinafter referred to as “actual
methamphetamine”). See id. at (B).
“Ice” means the weight of a mixture of at least
80% purity. Id. at (C). The guidelines direct the
court to determine a defendant's base offense level using
either the total weight of methamphetamine mixture or the
weight of the actual methamphetamine contained within the
mixture, whichever results in the greater base offense level.
See id. at (B). Actual methamphetamine and ice are
treated identically under the guidelines, i.e., the
same weights of ice and actual methamphetamine result in the
same base offense levels. See, e.g., U.S.S.G. §
2D1.1(c)(3) (500 grams of actual methamphetamine and 500
grams of ice both qualify for base offense level of 34).
guidelines establish a 10:1 ratio in their treatment of
quantities of methamphetamine mixture and actual
methamphetamine or ice. For example, 5 kilograms of
methamphetamine mixture, 500 grams of actual methamphetamine,
and 500 grams of ice are all treated the same way under the
guidelines: all receive a base offense level of
government argues, and the court agrees, that the 10:1 ratio
at issue here is not a ratio based on different
forms of methamphetamine. Rather, the applicable
statutes and guidelines distinguish between different
concentrations of methamphetamine in a mixture.
See United States v. Stoner, 927 F.2d 45, 47 (1st
Cir. 1991) (rejecting defendant's argument that statute
distinguished between “pure” methamphetamine and
methamphetamine mixture as different forms of the drug). In
this way, the ratio imposed by the methamphetamine guidelines
is different from the 100:1 crack-cocaine ratio at issue in
Kimbrough. While the guidelines distinguish between
two forms of cocaine (cocaine and cocaine base/crack), they
do not distinguish between different forms of
methamphetamine. See U.S.S.G. § 2D1.1(c).
Despite the differences between the guidelines governing
methamphetamine and cocaine, the government concedes that-as
applied-there is a 10:1 ratio between quantities of actual
methamphetamine and methamphetamine mixture that result in
the same base offense level. That 10:1 ratio is the focus of
argues that this court should categorically reject, on policy
grounds, the 10:1 ratio between quantities of actual
methamphetamine and methamphetamine mixture in the
guidelines. A growing number of district courts have declared
a categorical policy disagreement with the purity-driven
methamphetamine guidelines. See United States v.
Hoover, No. 4:17-CR-327-BLW, 2018 WL 5924500, at *4 (D.
Idaho Nov. 13, 2018) (Winmill, J); United States v.
Ferguson, No. CR 17-204 (JRT/BRT), 2018 WL 3682509, at
*3-4 (D. Minn. Aug. 2, 2018); United States v.
Saldana, No. 1:17-cr-271-1, 2018 U.S. Dist. LEXIS
110790, at *7-10 (W.D. Mich. July 3, 2018); United States
v. Harry, 313 F.Supp.3d 969, 974 (N.D. Iowa 2018)
(Strand, J.); United States v. Nawanna, 321
F.Supp.3d 943, 955 (N.D. Iowa 2018) (Bennett, J.); United
States v. Ibarra-Sandoval, 265 F.Supp.3d 1249, 1256
(D.N.M. 2017). This court finds the collective reasoning
employed in these decisions persuasive and joins them by
declaring a categorical policy disagreement with the
methamphetamine guidelines for the following reasons: (1)
there appears to be no empirical basis for the Sentencing
Commission's harsher treatment of offenses involving
higher purity methamphetamine; (2) methamphetamine purity is
no longer an accurate indicator of a defendant's role in
a drug-trafficking conspiracy; and (3) the methamphetamine
guidelines create unwarranted sentencing disparities between
methamphetamine offenses and offenses involving other major
Lack of Empirical Justification
Supreme Court has acknowledged that the Sentencing Commission
plays an important institutional role: “It has the
capacity courts lack to base its determinations on empirical
data and national experience, guided by professional staff
with appropriate expertise.” Kimbrough, 552
U.S. at 109 (internal quotation marks omitted). In general,
the Commission has used its empirical and experiential
approach to develop sentencing guidelines that reflect a fair
sentencing range. See id. at 96, 109. However, where
the guidelines are not the result of the Commission's
exercise of its characteristic institutional role (reliance
on empirical studies and data), the guidelines are a less
reliable estimation of a fair sentence and are therefore
entitled to less deference. See id. at ...