United States v. Witt

          MEMORANDUM EXPLAINING POLICY DISAGREEMENT WITH METHAMPHETAMINE SENTENCING GUIDELINES

          B. Lynn Winmill, Chief Judge United States District Court

         INTRODUCTION

         The United States Sentencing Guidelines were designed to promote the twin goals of uniformity and proportionality in sentencing. The task was not easy to achieve, and efforts have continued to identify and eliminate sources of unwarranted disparities in federal sentencing. I write here to join several colleagues in expressing my belief that the methamphetamine Guidelines contain one such unwarranted disparity.^[1] Due to increases in the average purity of methamphetamine sold today, purity is no longer an accurate indicator of a defendant's culpability or role in a drug enterprise, and the presumptive purity assigned to untested drugs does not reflect market realities. Moreover, whether a substance was lab tested for purity can have an arbitrary and unwarranted effect on the sentence imposed. The result is a scheme that undermines the sentencing goals laid out in 18 U.S.C § 3553(a).

         The purpose of this memorandum is to provide a reasoned explanation for my policy disagreement with the Guidelines and to lay out my methodology for sentencing in methamphetamine cases.

         LEGAL STANDARD

         In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the Sentencing Guidelines are just “one factor among several courts must consider in determining an appropriate sentence.” Kimbrough v. United States, 552 U.S. 85, 105 (2007). While the Guidelines must serve as the “starting point and the initial benchmark” of this inquiry, the sentencing court “may not presume that the Guidelines range is reasonable.” Gall v. United States, 552 U.S. 38, 49-50 (2007). The court's central task must be to impose a sentence “sufficient, but not greater than necessary, ” to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2).

         District courts may vary from the Guidelines on policy grounds. The Supreme Court expressly recognized this authority in Kimbrough, where it held that “district courts are free to deviate from the Guidelines based on disagreements with the crack/powder ratio.” 552 U.S. at 106-07. The Court went on to state in Spears v. United States, 555 U.S. 261 (2009) (per curiam), that a guideline may be rejected on a categorical basis “and not simply based on an individualized determination that [it] yield[s] an excessive sentence in a particular case.” Id. at 264. The Ninth Circuit has since held that Kimbrough and Spears permit sentencing judges to “reject any Sentencing Guideline [based on a policy disagreement], provided that the sentence imposed is reasonable.” United States v. Mitchell, 624 F.3d 023, 1030 (9th Cir. 2010) (emphasis added).

         In Kimbrough, the Court explained that “a district court's decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case ‘outside the heartland' to which the Commission intends individual Guidelines to apply.” Kimbrough, 552 U.S. at 89 (quoting Rita v. United States, 551 U.S. 338, 351 (2007)). This is especially true where the Guidelines provisions “do not exemplify the Commission's exercise of its characteristic institutional role[, ]” which is “to base its determinations on empirical data and national experience.” Id. at 109.

         DISCUSSION

         Base Offense Levels for federal drug crimes are calculated using the Drug Quantity Table found in § 2D1.1(c) of the Sentencing Guidelines, which uses a graduated scale based on the type and quantity of drugs involved. Methamphetamine, unlike most controlled substances, is to be quantified based on purity, using either the weight of a mixture containing the drug or the weight of the pure drug itself contained within the mixture, whichever yields the greater offense level. See U.S.S.G. § 2D1.1, Notes to Drug Quantity Table (B).

         In determining the Base Offense Level, there is a 10:1 ratio between pure or “actual” methamphetamine and an equivalent weight of methamphetamine mixture. For example, 15 grams of pure methamphetamine is treated the same as 150 grams of methamphetamine mixture. The 10:1 ratio was first introduced in the 1989 Sentencing Guidelines. I have tried to determine whether there is any empirical data from the Sentencing Commission or in the academic literature which would justify the ratio. I have found none. Rather, these distinctions seem to be tiered to a similar 10:1 ratio used in the mandatory minimum sentences imposed by Congress. See 21 U.S.C. § 841(b)(1)(A)(viii) & § 841(b)(1)(B)(viii).^[2] That determination was, by its very nature, a product of political calculation and compromise rather than empirical analysis.

         The practical effect of the ratio is to impose a presumed purity of 10% for untested methamphetamine mixtures. The ratio may therefore have been based on the assumption that most methamphetamine was produced in a home lab where purity levels of approximately 10% were typical, or where purer methamphetamine was “stepped on” by diluting it with other inert substances to increase profitability. From my experience, purity levels of seized drugs in the 10% range were common until approximately 20 years ago. Realities on the ground have since changed.

         Today, methamphetamine is almost always imported from foreign drug labs and the purity levels are much higher. A recent 2015-16 survey of drug purity levels in the District of Idaho revealed an average purity level of 92.6% with a low of 88% and a high of 100%.^[3] A 1999 report of the U.S. Sentencing Commission indicates that average nationwide purity rates had already jumped to 50% at the turn of the century. See United States Sentencing Commission, Methamphetamine: Final Report, at 7 (Nov. 1999), http://www.ussc.gov/sites/default/files/ pdf/research/working-group-reports/drugs/199911MethReport.pdf; see also United States v. Ortega, No. 8:09CR400, 2010 WL 1994870, at *1 (D. Neb. May 17, 2010) (“The government acknowledged at the sentencing hearing that the purity of most methamphetamine on the street now is 40%-50%[.]”).

         Simply put, the presumed purity of 10% for untested methamphetamine is no longer valid. This, in turn, has led to substantial and unwarranted disparities in sentencing based solely on whether methamphetamine is lab tested. In many cases, the Guidelines range where testing has been performed is double that where a drug's purity is unknown. Take, for example, a case involving a methamphetamine mixture of 150 grams and 90% purity. Had purity testing been performed, the base offense level would be 30, while the base offense level for untested methamphetamine would be 24. Assuming no adjustments and a Criminal History Category of I, the Guidelines range without purity ...