Office of the Public Defender - Northern District of Texas



SEQ CHAPTER \h \r 1IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISIONUNITED STATES OF AMERICA § §v. § Criminal Case No. §FILED UNDER SEAL) § SEQ CHAPTER \h \r 1DEFENDANT ’S SENTENCING MEMORANDUM Defendant, through Assistant Federal Public Defender, Lauren A. Woods, files the following Sentencing Memorandum, requesting a significant downward variance for the following reasons: Nature and Circumstances of the OffenseA downward variance of at least 4-levels is appropriate because: (1) the Methamphetamine Guidelines erroneously equate increased drug purity with increased culpability; (2) the Drug Trafficking Guidelines were not based on empirical evidence, but rather, statutory directives; and (3) the Methamphetamine Guidelines treat all three different chemical forms of methamphetamine—d-meth, l-meth, and dl-meth—equally, disregarding the vastly different degrees of harm associated with each form. Higher Purity Does Not Equal Higher CulpabilityThe Guidelines punish “pure” meth, or “methamphetamine (actual)” 10 times more severely than methamphetamine that either has not been tested or is treated as a “mixture” or “substance” containing methamphetamine. This distinction is flawed because it is based solely upon a DEA decision unrelated to criminal conduct in this case, and it substantially overrepresents the seriousness of the offense because nearly all of the methamphetamine seized in the United States today has a purity above 90%. The Commission justifies treating meth (actual) more harshly than meth (mixture) by presuming that:The purity of the controlled substance . . . may be relevant in the sentencing process because it is probative of the defendant’s role or position in the chain of distribution. . . [and] the fact that a defendant is in possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs. This assumes that each successive layer of middlemen would dilute (“step-on”) meth in order to increase the quantity for re-sale, resulting in increasingly diluted drugs as the drugs journeyed to the eventual end user. This may or may not have been true at one time, but “there is no support in the legislative history to explain the formula underlying greater methamphetamine purity to greater months of imprisonment.” Indeed, the DEA recently reported that methamphetamine per-gram purity levels averaged above 90%, meaning that the “average” meth bought by a user on the streets today incorrectly paints him as a presumptive kingpin. Furthermore, as purity climbed, price plummeted 80% from $293 per gram in 2007 to only $66 per gram in 2015. Accordingly, when the average purity of methamphetamine is more than 90% (and thus, not unusually pure, as characterized by the Guidelines), focusing on meth purity fails to distinguish culpability among drug distributors. The Sentencing Commission, as early as 1999, identified another problem with purity analysis—selective testing. The Commission reported:Because of the high purity level of street-level methamphetamine and the higher penalties associated with meth-actual, nearly all cases in which an analysis of drug purity is conducted theoretically should be sentenced using the actual quantity of pure drug contained in the mixture of the substance… It is notable, however, that only 36.8 percent of methamphetamine cases (excluding Ice) are sentenced under the meth-actual calculation.As earlier stated, the average per-gram purity of today’s methamphetamine is above 90%. Thus, the presence of the lab report in this case results in an arbitrary re-structuring of the Guidelines relative to other similarly situated defendants. Current statistics showing the number of defendants sentenced for mixture versus actual methamphetamine could not be found in the Commission’s annual sourcebook of statistics. If the ratio is anywhere near what it was in the past, however, then methamphetamine defendants are facing seriously disparate sentences. The majority of offenders would be punished using the meth (mixture) guideline, not because of any factual differences between their cases and this one, but simply because drugs are sent to the lab for testing infrequently or selectively. The effect is that although Mr. conduct is virtually the same as that of other defendants (sentenced under the meth (mixture) guideline), he would be receiving significantly higher punishment merely because of a lab report. Indeed, the lab report in this case increases guideline range from 168-210 months to 262-327 months.Notably, U.S. District Judge Terry Means in the Northern District of Texas, has made it a routine practice to downwardly vary from the sentencing guidelines based on the “meaningless” differentiation the guidelines create between methamphetamine and methamphetamine actual. In United States v. Flores, a case involving “methamphetamine (actual),” the defendant had a total offense level of 29, a criminal history category of IV, and a guideline range of 121-151 months. Prior to stating Mr. Flores’s sentence, Judge Means explained his intent to sentence Mr. Flores “as though the methamphetamine attributable to him were simple methamphetamine and not methamphetamine actual, because . . . the differentiation is meaningless and result[s] in irrational sentencing disparity among defendants with similar offense and personal characteristics.” Judge Means continued, stating:I intend to count meth and meth actual the same, because you’re talking about the same exact ingredient. All of the methamphetamine being taken now is 90 something percent or 80 something percent. There is no real rational basis for the differentiation any more. So it will be my habit . . . to conclude that this differentiation is just as irrational or more than the crack and powder cocaine differentiation we had for years.Judge Means ultimately sentenced Mr. Flores to 105 months. In United States v. Worley, another case in front of Judge Means involving “methamphetamine (actual),” the defendant had a total offense level of 39, a criminal history category V, and an imprisonment range capped at 240 months. Had Mr. Worley’s offense level been calculated by using the methamphetamine guidelines, and not the methamphetamine (actual) guidelines, his base offense level would have been 32, and his guideline range would have dropped to 188-235. In that case, the Government not only had no objection to Judge Means reducing Mr. Flores’s guideline range to 188-235 based on his policy disagreement with the Methamphetamine Guidelines (despite one of the samples of methamphetamine at issue indicating a 96.8% purity level), but the Government also stated it was “comfortable” with the reduction. Again, Judge Means downwardly varied and sentenced Mr. Worley to 188 months, reasoning that it is “a foolish policy decision to punish greater for the larger amount—the greater percentage of purity.”The same logic Judge Means used in Flores and Worley applies to Mr. case. Mr. base offense level is 38 because he is being held accountable for 5.77 kilograms of “methamphetamine (actual).” Had Mr. base offense level been calculated using the methamphetamine (mixture) guideline, he would be starting at 34. This four-level increase, based solely on higher purity, is arbitrary and capricious because it does not accurately reflect increased culpability. As a result, a downward variance of 4-levels is necessary to avoid unwarranted sentencing disparities.The Flaws in U.S.S.G. § 2D1.1A downward variance is also supported by the flaws inherent in § 2D1.1. District Courts are permitted to reject a guideline “on categorical, policy grounds, even in a mine-run case, and not simply based on an individualized determination that it yields an excessive sentence in a particular case.” Here, Counsel requests the Court to reject the guidelines set forth in § 2D1.1 because they “do not exemplify the Commission’s exercise of its characteristic institutional role,” and they are not based on empirical evidence, but rather statutory directives correlating to mandatory minimum sentencing schemes. The drug trafficking guidelines have been directly tied to statutory directives since their inception in 1987, when the first version of the guidelines did not list methamphetamine in the drug table because they were not listed in the Anti-Drug Abuse Act of 1986. Roughly one year later, the Commission responded to the Anti-Drug Abuse Act of 1988, which set forth mandatory minimum penalties for meth trafficking, by incorporating the statutory penalties into the guidelines. This 1988 Act penalized meth (actual) ten times greater than meth (mixture); hence, the corresponding distinction in the guidelines between meth (actual) and meth (mixture). About two years later, the Commission amended the Guidelines in response to the Crime Control Act of 1990 by “making both Ice and actual methamphetamine four to eight levels higher than mixture.” Then, in 1996, Congress used the Comprehensive Methamphetamine Control Act of 1996 to instruct the Commission to increase the penalties for methamphetamine trafficking offenses. The Commission responded by adding a 2-level enhancement for the unlawful importation of methamphetamine or its precursor chemicals; adding another 2-level enhancement if the offense involved an environmental offense; and cutting in half “the quantities of methamphetamine mixture that correspond to each offense level listed for methamphetamine in the Drug Quantity Table.” Today, the base offense levels set forth in § 2D1.1’s Drug Quantity Table correspond to the mandatory minimum provisions set forth in 18 U.S.C. § 841(b)(1)(A) & (b)(1)(B).The Commission created the methamphetamine guidelines in much the same fashion as the crack/cocaine guidelines—merely by relying on Congressional directives instead of examining the nature of harms associated with the use of the drug. While methamphetamine is punished more extensively and more severely than any other drug type, “many drug abuse experts contend that methamphetamine is not the most harmful drug.” Recent statistics indicate that both the Government and district courts are beginning to recognize that the Sentencing Guidelines’ treatment of methamphetamine offenses is unreasonable. For instance, in 2013, 82.7% of methamphetamine offenders received mandatory minimum sentences, and 59.6% of those cases received a mandatory 10-year minimum sentence. In 2016, however, 54.1% of methamphetamine offenders received mandatory minimum sentences, 34.2% of which were 10-year minimum sentences. Further, 70.1% of all methamphetamine cases sentenced in 2015 received below-guideline sentences. Accordingly, the Court should afford the Guidelines here less deference than it would other provisions based on empirical evidence.§ 2D1.1 Unjust Treatment of the Different Chemical Forms of MethamphetamineFinally, a downward variance based on the nature and circumstances of the offense here is supported by the fact that the Guidelines treat all forms of methamphetamine the same, failing to take the varying degrees of harm associated with each form into account. Methamphetamine comes in three different chemical forms—d-meth, l-meth, and dl-meth. D-meth is the type associated with the intoxicating effects of illicit methamphetamine because, when compared to other forms of meth, it has the greatest physiological effect upon the user. L-meth, which is found in over-the-counter products such as Vicks Vapor Inhaler?, “’produces little or no physiological effect when ingested.’” Dl-meth is less potent than d-meth and more potent than l-meth. Accordingly, d-meth is a much more dangerous substance, and as such, should be punished more severely than l-meth or dl-meth. The form of methamphetamine produced is driven primarily by its method of production. D-meth is produced by the “ephedrine/pseudoephedrine reduction” method, and dl-meth is produced by the “P2P” method. Notably, nearly all of the methamphetamine seized in the United States today is manufactured using the P2P method. Consequently, nearly all of the methamphetamine being trafficked in the United States today is some form of dl-meth. Importantly, the earliest version of the Guidelines distinguished between l-meth and “methamphetamine,” proscribing lower penalties for the l-meth isomer due to its lesser associated harms. In 1995, however, the Sentencing Commission responded to a “litigation problem” arising from defendants arguing “that the government must specifically prove that their offense involved ‘d-meth’ in order for the more severe penalties to apply.” The Commission’s response was to amend the Drug Equivalency Tables to delete this distinction, punishing l-meth equal to d-meth. As a direct result of this amendment, a defendant transporting 5 kilos of pure l-meth or dl-meth will receive the same base offense level as a defendant transporting 5 kilos of pure d-meth.Here, Mr. has base offense level of 38 pursuant to the “methamphetamine (actual)” guideline. While the lab report testing the methamphetamine Mr. and co-defendant were transporting at the time of arrest indicates that “d-Methamphetamine Hydrochloride was confirmed in the composite,” there is no indication of whether that methamphetamine was 1% d-methamphetamine, 50% d-methamphetamine, or 100% d-methamphetamine. The other 3.78 kilograms of methamphetamine included in Mr. relevant conduct was never physically seized or tested, but merely presumed to be 99.1% or 93.4% pure based on two other lab results testing drugs seized from co-defendants . Importantly, these other two drug labs make no mention of d-meth, but rather, merely state that the substance(s) identified was “Methamphetamine Hydrochloride.” Because of the way the guidelines are structured today, Mr. C is receiving the same base offense level as someone who transported anywhere from 4.5 kilograms or more of “Ice,” or methamphetamine containing 80% or more d-methamphetamine. Accordingly, a downward variance is necessary to avoid a sentence that is “greater than necessary” to accomplish the goals of sentencing and to avoid unwarranted sentencing disparities between Mr. and other defendants who have either transported more methamphetamine than the quantity attributable to him or who have transported methamphetamine that is confirmed to be “Ice,” or 80% or more pure d-methamphetamine.ConclusionThe Guidelines here are to be treated merely as the Court’s “starting point and the initial benchmark.” Similar to the Supreme Court’s discussion in Kimbrough regarding the crack cocaine guidelines, the meth guidelines “do not exemplify the Commission's exercise of its characteristic institutional role,” and they were promulgated without taking account of “’empirical data and national experience.”’ As a result, the Guideline range provided in the PSR yields a sentence “greater than necessary” to achieve § 3553(a)’s purposes, “even in a mine-run case.” Mr. importantly, is not a “mine-run” case, and a significant downward variance is warranted.Respectfully submitted,319087516065500/s/ Lauren A. Woods LAUREN A. WOODSAssistant Federal Public DefenderNorthern District of TexasTexas Bar #24071222525 Griffin Street, Suite 629Dallas, Texas 75202Tel: (214) 767-2746Fax: (214) 767-2886lauren_woods@CERTIFICATE OF SERVICEI hereby certify that on March 22, 2017, I electronically filed the foregoing document with the clerk of the court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court 319087516065500/s/ Lauren A. Woods LAUREN A. WOODS ................
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