United States District Court, D. Idaho
MEMORANDUM EXPLAINING POLICY DISAGREEMENT WITH
METHAMPHETAMINE SENTENCING GUIDELINES
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE.
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.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
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
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).
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
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.
Offense Levels for federal drug crimes are calculated using
the Drug Quantity Table found in § 2D 1.1(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).
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. § 84l(b)(1)(A)(viii) & §
84l(b)(1)(B)(viii). That determination was, by its very
nature, a product of political calculation and compromise
rather than empirical analysis.
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.
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%. 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),
11-Meth-Report.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%[.]").
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