United States v. Kort
440 F. App'x 678
10th Cir.2011Background
- Kort pled guilty to conspiracy to possess and distribute more than 500 grams of methamphetamine.
- District court calculated base level 34 using Ice and methamphetamine quantities converted to marijuana equivalents; leadership enhancement added four levels; total offense level 35.
- Guidelines produced a 210–262 month range; district court found no departure or variance warranted initially.
- Government moved for four-level downward departure for substantial assistance; Kort sought an additional two-level departure and a variance based on assistance and disparity.
- District court granted four-level departure, denied an additional two-level departure and denied a downward variance; Kort was sentenced to 135 months at the low end of the range.
- Kort appeals alleging sentencing disparity and improper/undue weight given to government’s view on assistance; panel affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disparity/variance for purity | Kort argues 80% Ice threshold is arbitrary and creates disparity with lower-purity defendants. | Court properly used 80% threshold and Note 9 to explain higher punishment for purer meth. | No reversible disparity; sentence within guidelines and adequately explained. |
| Additional two-level departure for substantial assistance | Kort seeks extra two-level departure based on ongoing assistance and witness/escalating risks. | District court acted within discretion; government guidance properly weighed; potential Rule 35(b) future consideration. | Court lacked jurisdiction to grant more than four-level departure; affirmed denial of additional two-level departure. |
| Downward variance for substantial assistance | Kort contends district court failed to grant variance despite substantial assistance and safety concerns. | District court properly weighed assistive value; gave four-level departure per §5K1.1 and noted potential future Rule 35(b) action. | No abuse; variance denied and sentence sustained. |
| Application notes and purity rationale | Relying on application note 9 to justify higher offense level for high-purity Ice is improper for methamphetamine. | Note 9 rationale applicable to explaining higher levels; district court did not abuse discretion. | Use of application note 9 not an abuse; justification for higher level upholds. |
Key Cases Cited
- United States v. Smart, 518 F.3d 800 (10th Cir. 2008) (standard of review for reasonableness of sentences)
- United States v. Sayad, 589 F.3d 1110 (10th Cir. 2009) (procedural and substantive reasonableness review; factors 3553(a))
- United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006) (presumption of reasonableness attached to within-Guidelines sentences)
- United States v. Bergman, 599 F.3d 1142 (10th Cir. 2010) (jurisdiction to review downward-departure denials)