United States District Court, D. Alaska
ORDER REGARDING DISPARITY IN METHAMPHETAMINE
SENTENCING
TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
The
purpose of this order is to articulate the Court's
concern with how methamphetamine is treated by the United
States Sentencing Guidelines (“U.S.S.G.,
“Sentencing Guidelines, ” or
“Guidelines”) generally and as applied in this
case. Specifically, it is intended to more fully explain the
Court's sentencing methodology going forward in regard to
base offense level determinations for methamphetamine as
found in the Sentencing Guidelines. For the reasons explained
below, the Court finds that the Guideline's distinction
between pure or “actual”[1]methamphetamine and less pure
mixtures when determining a base offense level undermines the
sentencing goals articulated in 18 U.S.C. § 3553(a) and
creates an arbitrary distinction that is unrelated to a
defendant's culpability. Accordingly, the Court will
routinely grant downward variances-subject to individual
exceptions-to correct this disparity.
II.
BACKGROUND
The
Sentencing Guidelines were enacted to promote the dual goals
of uniformity and proportionality in
sentencing.[2] The United States Sentencing Commission,
established in 1984 by the Sentencing Reform Act, is
responsible for creating the Guidelines for all federal
offenses.[3]Although originally intended to be
mandatory, following the Supreme Court's decision in
United States v. Booker, [4] the Guidelines now serve an
advisory purpose, and are “the starting point and the
initial benchmark” in sentencing criminal
defendants.[5]
The
Drug Quantity Table found in § 2D1.1(c) of the
Guidelines is the starting point for calculating the base
offense level for drug crimes under the
U.S.S.G.[6] For most drug offenses, the base offense
level reflects the type and quantity of drug(s)
involved.[7] For methamphetamine, however, the
Guidelines “distinguish between two forms of
methamphetamine powder: actual and
mixture.”[8] The base offense level for methamphetamine
depends on the purity of the drug involved, using a 10:1
ratio to distinguish between pure, or “actual, ”
methamphetamine and an equivalent total weight of a mixture
containing methamphetamine.[9] The result is that 10 grams of
pure methamphetamine is treated the same as 100 grams of
methamphetamine mixture for calculating a defendant's
Guidelines sentencing range.[10]
In
practice, the distinction between actual methamphetamine and
a mixture containing methamphetamine can significantly affect
the base offense level of methamphetamine criminal
sentencing, and can-and as discussed below, does-ultimately
result in divergent sentencing outcomes for similarly
situated defendants. For example, a criminal defendant
charged with possession of 25 grams of mixed methamphetamine
starts with a base offense level of 18 under the Sentencing
Guidelines; however, should the same 25 grams of
methamphetamine be determined to be at least 80 percent pure,
the base offense level increases to a level of
26.[11]Assuming no other sentencing enhancements
or downward variations and a criminal history of I, a
defendant possessing 25 grams of mixed methamphetamine faces
a Guidelines range of 27-33 months, whereas a defendant
possessing 25 grams of pure or actual methamphetamine faces a
Guidelines range of 63-78 months.
III.
LEGAL STANDARD
Pursuant
to the Supreme Court's decision in United States v.
Booker, the Sentencing Guidelines are “one factor
among several courts must consider in determining an
appropriate sentence.”[12] While “the Guidelines
should be the starting point and initial benchmark” of
the sentencing process, and must be considered as a factor in
sentencing, they “are not the only
consideration.”[13] After calculating the Guidelines
range, the Court “should then consider all of the [18
U.S.C.] § 3553(a) factors” to make an
“individualized assessment based on the facts
presented.”[14] In making this determination, the Court
“may not presume that the Guidelines range is
reasonable.”[15] “The Supreme Court has emphasized
this point, noting ‘[o]ur cases do not allow a
sentencing court to presume that a sentence within the
applicable Guidelines range is reasonable,' and that
‘[t]he Guidelines are not only not mandatory
on sentencing courts; they are also not to be
presumed reasonable.'”[16] Ultimately,
in sentencing, the Court is guided by the principle of
parsimony: “[t]he 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).”[17]
It is
well settled-and neither party disputes-that
“[s]entencing judges may impose sentences that vary
from the Guidelines range based on a policy disagreement with
the Guidelines.”[18] In fact, under Spears v. United
States, the deviation need not be “based on an
individualized determination;” rather, district courts
can “reject and vary categorically” from certain
Guidelines for policy reasons, among them the factors
identified in § 3553(a).[19] Ultimately, “sentencing
judges can reject any Sentencing Guideline, provided
that the sentence imposed is reasonable.”[20] “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.'”[21]
IV.
DISCUSSION
Under
the Sentencing Guidelines, the base offense level for
methamphetamine offenses depends on the purity of the drug,
and the Guidelines calculation relies on a 10:1 ratio between
actual and mixed methamphetamine.[22] The Court disagrees with
this distinction on policy grounds.
The
distinction between actual and mixed methamphetamine does not
comport with the reality of how methamphetamine is created,
trafficked, and sold today, and creates an arbitrary
distinction between defendants that runs contrary to the
§ 3553(a) factors. For the reasons explained below, the
Court will thus routinely vary from this distinction in the
advisory guidelines as is authorized under Kimbrough
and Spears.[23]
First,
as has been noted by several other district courts, the
current reality is that “methamphetamine is almost
always imported from foreign drug labs and the purity levels
are much higher.”[24] Under the current Guidelines range,
the presumed purity of untested methamphetamine is 10
percent.[25] As of 1999, however, the Sentencing
Commission indicated that average nationwide purity rates
were around 50 percent.[26] This number has continued to rise:
across North America, after a brief period of decline between
2005 and 2008, “the purity of methamphetamine continues
to increase steadily . . . reaching about 93 percent in
2012.”[27]“Between 2002 and 2005 . . . the
average purity increased from 49 percent to 69
percent.”[28]
These
global trends in the methamphetamine market are reflected by
the trends observed within the District of Alaska. An
informal survey of defendants sentenced for methamphetamine
related drug charges in this district[29] found that
where purity of seized methamphetamine was sent to a
laboratory for testing, the results indicate that purity
generally exceeded 89 percent. Notably, there is only one
criminal sentencing since 2015 where purity testing was
performed on seized methamphetamine and the resulting base
level offense was determined using mixed methamphetamine; in
other words, since 2015, where the methamphetamine was sent
for testing, in all but one case the purity was at least 80
percent and, thus, the defendant was subject to the
heightened base offense level. These findings are similar to
those that from other district courts that have examined this
issue.[30] Ultimately, this shift in the landscape
means that pure methamphetamine is not unique or rare, nor
does current data suggest that the purity of methamphetamine
is in any way an indicator of heightened culpability for a
particular defendant.[31]
In
practice, the result of this trend in purity levels overall
means that when methamphetamine is tested for purity,
defendants will nearly always be subject to a substantially
higher Guidelines penalty range. The difference in practical
terms is substantial:
“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 testing is 51-63 months.
With purity testing, the Guidelines range balloons to 97-121
...