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United States v. Bean

United States District Court, D. New Hampshire

March 1, 2019

United States
v.
Michael Bean

          ORDER

          LANDYA McCAFFERTY, UNITED STATES DISTRICT JUDGE

         Defendant 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 Bean's motion.

         BACKGROUND

         This is 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.

         Bean 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.

         DISCUSSION

         In 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 procedural error”).

         The 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.

         District 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.

         The 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.

         The 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.

         The 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).[1] 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).

         The 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 34.[2] See id.

         The 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 Bean's motion.

         Bean 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).[3] 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 drugs.

         I. Lack of Empirical Justification

         The 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 ...


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