USA v. Rodriguez

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSE ALBERTO RODRIGUEZ, JR.,
Defendant.
Case No. 3:17-cr-00031-TMB
ORDER REGARDING
DISPARITY IN
METHAMPHETAMINE
SENTENCING
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.
1 The Court interchangeably uses the terms “actual” and “pure” to refer to methamphetamine with
a base minimum level of purity: specifically, any methamphetamine determined to be at least 80%
pure or higher.
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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
2 See 28 U.S.C. §§ 991(a), 991(b)(1), 994(f). See also 18 U.S.C. 3553(a).
3 See Mistretta v. United States, 488 U.S. 361, 362 (1989) (citing 18 U.S.C. § 3551 et seq.).
4 543 U.S. 220, 246 (2005).
5 Gall v. United States, 552 U.S. 38, 49 (2007).
6 To calculate the Guideline range for a particular defendant, the Court begins by determining the
offense guideline section applicable to the offense of conviction. U.S.S.C. § 1B1.1(a)(1). Then,
the Court looks to the base offense level for that offense contained in chapter two of the Guidelines.
Id. at 1B1.1(a)(2).
7 See U.S.S.G. § 2D1.1
8 United States v. Hayes, 948 F.Supp.2d 1009, 1024 (N.D. Iowa 2013). See also United States v.
Austin, 	No. 	1:18-CR-023-BLW, 	2018 	WL 	4087987, 	at 	*2 	(D. 	Idaho 	Aug. 	27, 	2018)
(“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.” (citing U.S.S.G. § 2D1.1, Notes to
Drug Quantity Table (B))).
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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,
9 Id. This reflects the distinction established by Congress in the mandatory minimum sentences for
methamphetamine. See 21 U.S.C. §§ 841(b)(1)(A)(viii), 841(b)(1)(B)(viii). See also United States
Sentencing 	Commission: 	Methamphetamine 	Report 	(1999), 	at 	18–19; 	available 	at
https://www.ussc.gov/sites/default/files/pdf/research/working-group-reports/drugs/199911_Meth
_Report.pdf. This has led some courts to conclude that the methamphetamine guideline ranges
were “a product of political calculation and compromise rather than empirical analysis,” asserting
that no “empirical data from the Sentencing Commission or in the academic literature . . . would
justify the ratio.” United States v. Hendricks, 307 F.Supp.3d 1104, 1106–07 (D. Idaho. 2018).
10 Because of this distinction, “there are two methods for determining a defendant's base offense
level in methamphetamine powder cases, either by the weight of the actual methamphetamine
contained within a mixture or by the weight of the entire mixture containing a detectable amount
of methamphetamine.” Hayes, 948 F.Supp.2d at 1024 (citing § 2D1.1(c)). The Guidelines direct:
“[i]n the case of a mixture or substance containing [methamphetamine], use the offense level
determined by the entire weight of the mixture or substance, or the offense level determined by
the weight of the [actual methamphetamine], whichever is greater.” U.S.S.G. § 2D1.1, Notes to
Drug Quantity Table (B).
11 See generally U.S.S.G. § 2D1.1(c).
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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
12 Kimbrough v. United States, 552 U.S. 85, 90 (2007) (citing Booker, 543 U.S. at 244).
13 Gall, 552 U.S. at 49. See also Kimbrough, 552 U.S. at 90–91. Note, however, that “district courts
are required to properly calculate and consider the [G]uidelines when sentencing, even in an
advisory guideline system.” U.S.S.G. Ch. One, Pt. A, Subpt. 2.
14 Id. at 50.
15 Id.
16 Hayes, 948 F.Supp.2d at 1013 (quoting Nelson v. United States, 555 U.S. 350, 352 (2009) (per
curiam) (emphasis in the original)).
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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.
17 Hendricks, 307 F.Supp.3d at 1106. See also Kimbrough, 552 U.S. at 571–72.
18 Hayes, 948 F.Supp.2d at 1014 (citing Spears, 555 U.S. at 263–67 and Kimbrough, 552 U.S. at
109–10).
19 Spears, 555 U.S. at 265.
20 United States v. Mitchell, 624 F.3d 1023, 1029 (9th Cir. 2010). See also United States v.
Henderson, 649 F.3d 955, 963 (9th Cir. 2011).
21 Austin, 2018 WL 4087987, at *2 (citing Kimbrough, 552 U.S. at 109).
22 This ratio was first introduced in the 1989 Sentencing Guidelines. United States v. Dunn,
No. 1:18-CR-00062-BLW-1, 2018 WL 5809944, at *2 n. 2 (D. Idaho Nov. 6, 2018 (“Congress
first introduced the methamphetamine purity distinction in the 1988 Anti-Drug Abuse Act, in
which the weight quantity of methamphetamine mixture triggering each mandatory minimum was
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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:
set at ten times the quantity of the pure methamphetamine triggering that same statutory minimum
penalty. 	The 	Commission 	responded 	by amending the 	Guidelines 	to 	reflect 	the 	10-to-1
mixture/pure substance ratio.” (citing United States Sentencing Commission, Methamphetamine:
Final Report, at 7 (Nov. 1999), http://www.ussc.gov/sites/
default/files/pdf/research/working-group-reports/drugs/199911_Meth_Report.pdf.)).
23 Kimbrough, 552 U.S. at 109–110; Spears, 555 U.S. at 264. See also United States v. Valdez, 268
F. App'x 293, 297 (5th Cir. 2008) (holding that “the district judge can disagree with the Guidelines'
policy that purity is indicative of role”).
24 Hendricks, 307 F.Supp.3d at 1107. See also Dunn, 2018 WL 5809944, at *3 (“Simply put, the
presumed purity of 10% for untested methamphetamine is no longer valid.”); 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% and that it is now uncommon to find methamphetamine of a low level of purity
being sold.”).
25 See Dunn, 2018 WL 5809944, at *2. Some district courts have suggested that this presumption
“based on the assumption that most methamphetamine was produced in a home lab where purity
levels of approximately 10% were typical . . . until approximately 20 years ago.” Id.
26 United States Sentencing Commission, Methamphetamine: Final Report, at 7 (Nov. 1999),
http://www.ussc.gov/sites/default/files/pdf/research/working-group-
reports/drugs/199911_Meth_Report.pdf.
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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 district29 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
27 Review: Global Patterns of Methamphetamine Use. Wolters Kluwer Health, Inc. 2015, available
at https://www.ncbi.nlm.nih.gov/pubmed/26001916. Notably, this same study also indicated that
due to changes in how methamphetamine is synthesized, “such an increase in purity does not
always translate to an increase in potency.” Id. This statement undercuts the Government’s
repeated assertion that methamphetamine with a greater purity level is uniformly more dangerous
than less pure forms of the drug. See Dkt. 93 at 9–10.
28 J.C. Maxwell and B.A. Rutkowski, The prevalence of methamphetamine and amphetamine
abuse in North America: A review of indicators, 1992 – 2007, Drug and Alcohol Review (May
2008), 27, 229–235. Moreover, to the extent that Government argues the distinction is appropriate
because pure methamphetamine is more profitable, that assertion is not supported by available
information. 	See 	id 	(stating 	that 	during 	this 	same 	period, 	“price 	of 	a 	gram 	of 	[pure
methamphetamine] across the United States decreased from $120 – 700 to $ 30 – 700”).
29 The United States Probation Office for the District of Alaska compiled an informal survey for
the purposes of assisting the Court in drafting this Order. The informal survey identified criminal
cases in the District of Alaska where defendants were sentenced for violations under 21 U.S.C.
§ 841 and/or § 846 between 2015 and the present, and identified relevant sentencings. The informal
survey excluded cases where defendants were sentenced for methamphetamine offenses as well as
other charges, or where defendants possessed controlled substances other than or in addition to
methamphetamines.
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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 months—an increase in the Guidelines range of over 90%
attributable to the fact of testing alone.”32
Yet the reason why testing is or is not performed in any given case is often arbitrary: in Alaska,
testing for purity is almost always performed and reported for sentencings where the case started
under the jurisdiction of a federal law enforcement agency. However, for cases referred by a state
or local law enforcement agency, testing for purity—and whether the results of that testing are
subsequently reported for sentencing purposes—occurs in only approximately half of such cases.
Moreover, there are cases where the results of lab testing were not ready at the time of sentencing—
or were not reported at all for sentencing purposes—resulting in an arbitrary distinction as to
whether 	any 	particular 	defendant’s 	base 	level 	offense 	is 	grounded 	on 	actual 	or 	mixed
methamphetamine. For instance, in three separate identified sentencings, the presentence report
30 Hendricks, 307 F.Supp.3d at 1107 (“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%.”).
31 See Austin, 2018 WL 4087987, at *3 (“Purity is also a less meaningful proxy for culpability
where nearly all methamphetamine sold is of 90 percent purity or greater.”).
32 Dunn, 2018 WL 5809944, at *3.
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noted that a lab report detailing the purity level of the methamphetamine was not yet received by
the time of the issuance of a final presentence report, and that the recommendations and analysis
was therefore based on the lower Guidelines range.33
Taken in sum, this suggests that the Guidelines sentencing ranges—which are grounded in
outdated assumptions about purity of methamphetamine and where results for any particular
defendant can depend on the availability of testing—no longer align with the goals articulated in
18 U.S.C. § 3553(a). Specifically, 18 U.S.C. § 3553(a)(2)(A) identifies “the need for the sentence
imposed . . . to reflect the seriousness of the offense,” and 18 U.S.C. § 3553(a)(6) directs the Court
“to avoid unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct.” Yet the Court finds that the current Guidelines methodology leads
to just such disparities and arbitrary differences. The enhanced base offense level for actual
methamphetamine does not reflect culpability, severity of offense, or proximity to the source, but
today is often simply an indicator that lab testing was performed and received in time for
sentencing. This runs directly counter to §3553a(2)(A), divorcing the recommended penalty under
the Guidelines from any indicator of the “seriousness of the offense.” And, perhaps more
importantly, the differences in Guidelines ranges for actual versus mixed methamphetamine can
result in materially different base offense levels depending primarily on whether the seized drugs
33 Here the Government’s arguments reflect the arbitrary nature of the enhanced base offense level
due to the purity level of methamphetamine. In supplemental briefing on this issue, the
Government argues that the “fact that some defendants may have received a windfall because their
drugs were not subjected to purity analysis is not a reason to depart downward on cases where the
methamphetamine turns out to be predictably pure.” Dkt. 93 at 10. But whether defendants receive
a “windfall”—as the Government notes—depends almost entirely on the discretion of the
Government actors involved in a particular case or the ability of the Government to test the
methamphetamine at issue in the case. Such an enhancement in the base offense level is arbitrary
where testing in cases is not uniformly applied across similarly situated criminal defendants.
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were, in fact, tested, a fact unrelated to any conduct or action by the defendant. This creates just
the type of arbitrary distinction against which § 3553(a)(6) is meant to guard.
The Court thus finds that the methamphetamine Guideline ranges produce advisory
sentencing ranges that fail to achieve these factors. Because of this, the Court will routinely grant
downward variances to correct for the disparity that can result based solely on whether
methamphetamine was tested and the purity.
V. 	CONCLUSION
For the foregoing reasons, and absent a showing of unique circumstances in a specific
criminal matter, the Court will routinely grant downward variances from the Guidelines range for
methamphetamine offenses where the base offense level is enhanced due to the tested purity of the
methamphetamine to ensure that sentences are not greater than necessary to accomplish the
purposes of sentencing under 18 U.S.C. § 3553(a).
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 5th day of April, 2019.
/s/ 	Timothy M. Burgess___
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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