United States of America v. Jason C. Russell

United States Court of Appeals
For the Eighth Circuit
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No. 22-2077
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jason C. Russell
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Joplin
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Submitted: April 10, 2023
Filed: April 26, 2023
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Before BENTON, ARNOLD, and GRASZ, Circuit Judges.
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ARNOLD, Circuit Judge.
After Jason Russell pleaded guilty to conspiring to distribute 500 grams or
more of a mixture or substance containing a detectable amount of methamphetamine,

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see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, the district court1 at sentencing found
that the methamphetamine Russell possessed was pure, leading to a higher Sentencing
Guidelines range than Russell believed was appropriate. Russell takes issue with the
court's finding and also says that the government breached an agreement not to seek
a Guidelines range that was based on pure methamphetamine. We affirm.
Critical to understanding the parties' dispute is the fact that the Guidelines treat
defendants involved with pure methamphetamine more harshly than defendants
involved with substances of the same weight containing methamphetamine mixtures.
In this case, Russell admitted that officers recovered 951 grams of methamphetamine
during a traffic stop of a car in which Russell was a passenger. If that
methamphetamine was pure, then Russell's base offense level for Guidelines purposes
would be 34. See USSG § 2D1.1(c)(3). If it was merely a substance containing a
mixture of methamphetamine, then his base offense level would be 30. See id.
§ 2D1.1(c)(5). Russell's presentence report said that laboratory tests revealed that the
methamphetamine was pure and so calculated Russell's Guidelines range to be
292–365 months' imprisonment. Had testing revealed that the substance was not pure,
Russell's range would have been 188–235 months.
Russell objected to the PSR, pointing out that he was charged with and pleaded
guilty to conspiring to distribute only a mixture or substance containing a detectable
amount of methamphetamine, not pure methamphetamine, and so he shouldn't be
sentenced on the ground that the conspiracy involved pure methamphetamine. The
court overruled Russell's contention, explaining that the purity of methamphetamine
"impacts the guidelines but it doesn't impact what crime he's being charged with."
The district court sentenced Russell to 292 months in prison.
1The Honorable Douglas Harpool, United States District Judge for the Western
District of Missouri.
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We agree with the district court. To obtain a conviction, the government had
to prove merely that Russell's conspiracy involved a mixture or substance containing
methamphetamine, so it makes sense that the government charged him that way. But
for sentencing purposes, the Guidelines consider whether that substance was pure
methamphetamine or not. See USSG § 2D1.1(c) & n.B. The government did not rest
merely on Russell's guilty plea to demonstrate that the methamphetamine was pure;
it had the methamphetamine tested to confirm that it was pure, and Russell has
expressly disavowed any challenge to the accuracy of the laboratory testing. The
district court therefore did not err. See, e.g., United States v. Aparicio, 963 F.3d 470,
474–75 (5th Cir. 2020); United States v. Godinez-Perez, 864 F.3d 1060, 1068–69
(10th Cir. 2016).
Russell takes a slightly different tack on appeal from the one he took before the
district court. He maintains that the government breached an agreement to him by
arguing that the court could sentence him based on the methamphetamine's purity. We
recognize that "[a]llowing the government to breach a promise that induced a guilty
plea violates due process." United States v. Thomas, 58 F.4th 964, 971 (8th Cir.
2023). But Russell has failed to demonstrate that the government made any such
promise here. Russell pleaded guilty without the benefit of a plea agreement. He
relies instead on a factual stipulation made during his guilty plea that the
methamphetamine recovered during the traffic stop "was tested and confirmed as
methamphetamine" and "weighed approximately 2.1 pounds (951 grams)." But that
stipulation says nothing about drug purity, nor does it contain any promise by the
government not to advocate for a Guidelines range based on pure methamphetamine
or a stipulation as to what Guidelines range was appropriate. It was merely an
observation that provided the necessary factual support for Russell's guilty plea.
Because Russell has failed to demonstrate that the government made the promises or
stipulations that he says it did, we discern no abuse of discretion here.
Affirmed.
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