SENTENCING OPINION AND STATEMENT OF REASONS PURSUANT TO 18 U.S.C. § 3553(c) EXPLAINING A POLICY DISAGREEMENT WITH THE METHAMPHETAMINE GUIDELINES
TABLE OF CONTENTS
I. INTRODUCTION.......................................................1011
A. Indictment, Guilty Plea, And Sentencing Hearing.......................1011
B. Arguments Of The Parties............................................1011
II. ILLEGAL ANALYSIS...................................................1012
A. Sentencing Methodology .............................................1012
B. Policy Disagreement With The Methamphetamine Guidelines............1014
1. Background on policy disagreement based variances .................1014
2. Flaws in the methamphetamine Guidelines..........................1018
a. Creation of methamphetamine Guidelines.......................1018
i. The Sentencing Commission’s institutional role............1018
ii. The methamphetamine Guidelines are not based on empirical data.......................................1022
b. The methamphetamine Guidelines are excessive..................1027
c. The methamphetamine Guidelines ranges are not heartlands......1029
C. Application.........................................................1031
III. CONCLUSION.........................................................1033
TV. APPENDIX............................................................1033
This case raises the question of the merits of the United States Sentencing Guidelines
This Sentencing Memorandum supplements findings made on the record at defendant Willie Hayes’s sentencing hearing on June 3, 2013.
I. INTRODUCTION
A. Indictment, Guilty Plea, And Sentencing Hearing
On March 21, 2012, an Indictment was returned against Hayes, with the charge that he did knowingly and unlawfully combine, conspire, confederate, and agree, with others whose identities are both known and unknown to the Grand Jury, to knowingly, intentionally, and unlawfully possess with the intent to distribute 5 grams or more actual (pure) methamphetr amine or 50 grams of a methamphetamine mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance within 1,000 feet of Irving Elementary School, located in Sioux City, Woodbury County, Iowa, in violation of 21 U.S.C. §§ 846(a)(1), 841(b)(1)(B), 860, and 846. On January 30, 2013, Hayes pled guilty before U.S. Magistrate Judge Leonard T. Strand to Count 1 of the four-count superseding indictment, pursuant to a plea agreement (docket no. 76). Count 1 charged Conspiracy to Possess with the Intent to Distribute 35 Grams or More of Methamphetamine Actual, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). On that same day, I accepted Hayes’s guilty plea. A probation officer then prepared a presentence report (“PSR”). The PSR found that Hayes was a Career Offender because of two predicate felony convictions. On May 23, 2013, Hayes filed a Motion For Downward Departure And Variance (docket no. 92) and a well-drafted Sentencing Brief (docket no. 93) in which he raised several issues, including a cutting-edge issue on the methamphetamine Guidelines. For reasons only known to the prosecution, the government chose not to file a written resistance to Hayes’s Motion.
At the sentencing hearing, Hayes moved for a downward departure and variance. He argued that there was an over-representation of criminal history, and asked that I decline to qualify the reckless use of firearm with bodily injury (PSR ¶¶ 20, 26) and the burglary offense (PSR ¶ 34) as predicate, offenses. Next, Hayes argued that the application of the Career Offender enhancement overstates the seriousness of Hayes’s criminal record, his risk of reof-fending, and his culpability in relation to his federal offense. Hayes contended that the use of methamphetamine weight overstates the seriousness of Hayes’s offense and his risk of reoffending. The prosecution made a motion for downward departure based on substantial assistance under U.S.S.G. § 5K1.1. After oral arguments and Hayes’s allocution, I sentenced Hayes. This opinion explains and amplifies one of the rationales for my sentence. Many issues were covered at the sentencing hearing, but this opinion is limited to the issue of the methamphetamine Guidelines.
B. Arguments Of The Parties
Hayes requests that I vary down from the applicable Guidelines range, based on the factors of 18 U.S.C. § 3553(a) and
I viewed the prosecution’s failure to file a resistance to Hayes’s Motion For Downward Departure And Variance (docket no. 92) as a waiver to argument on the methamphetamine Guidelines issue. See N.D. IA. L.R. Rule 7(f) (“If no timely resistance to a motion is filed, the motion may be granted without notice. If a party does not intend to resist a motion, the party is encouraged to file a statement indicating the motion will not be resisted.”). However, I still allowed the prosecution to present arguments at the sentencing hearing. I considered the prosecution’s arguments, none of which were remotely persuasive, and I determined that the prosecution’s position did not undermine the powerful rationale articulated by Judge Gleeson in United States v. Ysidro Diaz, No. 11-CR-00821-2 (JG),
II. LEGAL ANALYSIS
A. Sentencing Methodology
Following the Supreme Court’s decision in Gall v. United States, the Eighth Circuit Court of Appeals has repeatedly stated the methodology for determining a defendant’s sentence as follows:
The district court should begin “by correctly calculating the applicable Guidelines range.” “[T]he Guidelines should be the starting point and the initial benchmark^ but] [t]he Guidelines are not the only consideration!;.]” The district judge should allow “both parties an opportunity to argue for whatever sentence they deem appropriate,” and then should “consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.”
United States v. Hill,
The Supreme Court has recognized that a party’s argument for a sentence outside the calculated Guidelines range may “take either of two forms.” Rita v. United States,
As a matter of procedure, the Eighth Circuit Court of Appeals has instructed that district courts should “continue to engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines’ structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a).” See United States v. Washington,
Although “a court of appeals may apply a presumption of reasonableness when conducting substantive review of a sentence within the advisory range, ‘the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.’ ” United States v. Henson,
As the Eighth Circuit Court of Appeals has also explained, “[w]e may not require “ ‘extraordinary’ circumstances to justify a sentence outside the Guidelines.” Feemster,
must “make an individualized assessment based on the facts presented.” [Gall,552 U.S. at 50 ,128 S.Ct. 586 .] If the court concludes that a sentence outside of the Guidelines range is warranted, then it must “consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. “[A] major departure should be supported by a more significant justification than a minor one.” Id. After the district court determines the “appropriate sentence,” it must then “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id.
Feemster,
At sentencing, my first step was to determine the advisory Guidelines range for Hayes. Second, I determined whether any traditional (non-substantial assistance) departures, either upward or downward, were warranted. Third, I considered whether to vary from the advisory Guidelines range based on my independent obligation to apply the 18 U.S.C. § 3553(a) factors, including any policy disagreements. I recognized that I may not rely on the 18 U.S.C. § 3553(a) factors sentencing factors to impose a sentence below the mandatory minimum required by statute, even when the prosecution has filed and I grant a substantial assistance motion under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). See United States v. Madison,
B. Policy Disagreement With The Methamphetamine Guidelines
In this section, I discuss my policy disagreement with the Guidelines range for methamphetamine offenses.
1. Background on policy disagreement based variances
Sentencing judges may impose sentences that vary from the Guidelines range based on a policy disagreement with the Guidelines. See, e.g., Spears v. United States,
The Supreme Court clarified the issue of the district court’s authority to vary from Guidelines sentences in Spears, which also involved the disparity between crack and powder cocaine sentences. In Spears, the Court explained that “a guideline may be rejected 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.” United States v. Beier-mann,
For the reasons discussed below, I join the few federal judges who have expressed a disagreement with the methamphetamine Guidelines. Judge Bataillon of the District of Nebraska has recognized the flaws in the methamphetamine Guidelines in a series of opinions. See, e.g., United States v. Goodman,
For policy reasons, and to conform to statutory mandatory minimum sentences, the Commission did not employ its characteristic empirical approach when setting the Guidelines ranges for drug offenses. Kimbrough,552 U.S. at 96 ,128 S.Ct. at 567 ; Fifteen-Year Assessment at 15, 72-73. Instead, the Commission attempted “to accommodate and, to the extent possible, rationalize mandatory minimum provisions established by the 1986 Anti-Drug Abuse Act” by anchoring the Guidelines to the mandatory minimum sentences. United States Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (August 1991), accessed at umw.ussc.gov/reports.htm (hereinafter, “Mand.Min.Rep’t”), Summary at ii; Rep’t at 17 n.58.
The Commission thus adopted “the 1986 [Anti-Drug-Abuse] Act’s weight-driven scheme.” Kimbrough, 552 U.S.at 96, 128 S.Ct. at 567 ; see Chapman v. U.S.,500 U.S. 453 , 461,111 S.Ct. 1919 ,114 L.Ed.2d 524 (1991) (stating that the Anti-Drug Abuse Act of 1986 provided for mandatory minimum sentences based on the weight of various controlled substances according to a “market-oriented” approach, creating a penalty scheme intended to punish large-volume drug traffickers severely). “The 1986 Act uses the weight of the drugs involved in the offense as the sole proxy to identify ‘major’ and ‘serious’ dealers.”FN1 Kimbrough,128 S.Ct. at 567 . The resulting Guidelines ranges for drug trafficking offenses are driven by the quantity of drugs, and keyed to statutory mandatory minimum sentences based on weight. Gall,128 S.Ct. at 594 & n. 2; Neal v. United States,516 U.S. 284 , 291-92,116 S.Ct. 763 ,133 L.Ed.2d 709 (1996) (noting that in spite of “incongruities between the Guidelines and the mandatory sentencing statute,” the Commission developed Guidelines to parallel the mandatory minimum sentences set out in 21 U.S.C. § 841(b)(1), using the quantities and sentences derived from the statute and “[t]he weight ranges reflect the Commission’s assessment of equivalent culpability among defendants who traffic in different types of drugs ... ”).
Noting that larger drug dealers were subject to a mandatory minimum of ten years for a first offense and twenty years for a subsequent conviction for the same offense, the Sentencing Commission stated that “[the Act] sought to cover mid-level players in the drug distribution chain by providing a mandatory minimum penalty of five years.” Id. at 10. Later, in “[p]erhaps the most far-reaching provision of the Omnibus Anti-Drug Abuse Act of 1988,” Congress made the mandatory minimum penalties that were previously applicable to substantive distribution and importation/exportation offenses apply also to conspiracies to commit those substantive offenses, increasing “the potential that the applicable penalties could apply equally to the major dealer and the mid- or low-level participant.” Id. at 10.
United States v. Hubel,
The court has considered the Sentencing Guidelines, but, because they were promulgated pursuant to Congressional directive rather than by application of the Sentencing Commission’s unique area of expertise, the court affords them less deference than it would to empirically-grounded Guidelines. See Kimbrough,552 U.S. at 107-10 ,128 S.Ct. at 574-75 . The Guidelines’ quantity-driven, “market-oriented” approach is not a proxy for culpability in every case, nor does it always correlate to the purposes of sentencing under 18 U.S.C. § 3553(a). Drug quantity is only an accurate measure when it corresponds to a defendant’s position in the typical hierarchy that characterizes most drug conspiracies. Where the defendant falls in this hierarchy is an important factor in the court’s assessment of a defendant’s ultimate culpability. Although the quantity-based system was designed to punish bigger distributors more harshly, charging practices and the government’s control over the number and amount of controlled buys from undercover or cooperating agents can result in an erroneous impression that a long-term, small-quantity distributor is a large-quantity distributor.
Id. at 853. This position is consistent with Judge Bataillon’s long-standing disagreement with the methamphetamine Guidelines on policy grounds. See United States v. Woody,
Other courts have held that a district court judge may disagree with the methamphetamine Guidelines on policy grounds. See, e.g., United States v. Valdez,
Beyond methamphetamine, other courts have disagreed with the drug-trafficking Guidelines on the same grounds with different types of drugs. See, e.g., United States v. Ysidro Diaz, No. 11-CR-00821-2 (JG),
2. Flaws in the methamphetamine Guidelines
This section describes the flaws in the methamphetamine Guidelines, which support my policy disagreement.
a. Creation of methamphetamine Guidelines
i. The Sentencing Commission’s institutional role
The Sentencing Reform Act of 1984 (“SRA”), a chapter of the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, 98 Stat. 2068, created the Sentencing Commission.
In developing the Guidelines, the original Commissioners were unable to reconcile different philosophical perspectives to create a governing philosophy for the Guidelines. U.S. Sentenoing Guidelines Manual § 1A.1.3 (1987). Justice Breyer, then Judge and original sentencing commissioner, described the process towards compromise:
Faced, on the one hand, with those who advocated “just deserts” but could not produce a convincing, objective way to rank criminal behavior in detail, and, on the other hand, with those who advocated “deterrence” but had no convincing empirical data linking detailed and small variations in punishment to prevention of crime, the Commission reached an important compromise. It decided to base the Guidelines primarily upon typical, or average, actual past practice.
Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L.Rev. 1, 7 (1988). Pre-Guidelines sentencing data was the “starting point” for the Commission’s compromise. U.S. Sentencing Guidelines Manual § 1A.1.3 (1987). “The information derived provided a numerical anchor for guideline development.” U.S. Sentencing Comm’n, Supplementary Report On The Initial Sentencing Guidelines And Policy Statements 22 (1987), available at http:// www.fd.org/docs/selecb-topics— sentencing/Supplementary-Report.pdf [hereinafter Supplementary Report]. According to Justice Breyer, the Sentencing Commission developed the first set of Guidelines through an empirical approach, examining 10,000 presentence reports, and determining average sentences imposed before the Guidelines, Rita,
However, the Sentencing Commission has not always followed the “characteristic institutional role” described in the SRA and by the Court in Rita, resulting in Guidelines that are unlikely to properly reflect 18 U.S.C. § 3553(a) considerations. See Kimbrough,
Even though the mandatory minimum sentences for drug-trafficking offenses in the Anti-Drug Abuse Act of 1986 (“ADAA” or “1986 Act”) were much higher than the pre-guidelines sentences for the same offense, the Commission incorporated the mandatory minimum provisions of the ADAA into the Guidelines, which are based on drug type and quantity. “It jettisoned its data entirely and made the quantity-based sentences in the ADAA proportionately applicable to every drug trafficking offense.” Diaz,
For the kingpins — the masterminds who are really running these operations— and they can be identified by the amount of drugs with which they are involved — we require a jail term upon conviction. If it is their first conviction, the minimum term is 10 years.... Our proposal would also provide mandatory minimum penalties to the middle-level dealers as well. Those criminals would also have to serve time in jail. The minimum sentences would be slightly less than those for the kingpins, but they nevertheless would have to go to jail — a minimum of 5 years for the first offense.
There is certainly reason to question the Commission’s empirical process, and the Commission’s efforts in crafting the drug-trafficking Guidelines have been subject to methodological criticism. Regarding the Commission’s methodology, the Supplementary Report lacks complete information and contains inconsistencies. Bernard E. Harcourt, From The Ne’er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, 66 L. & Contemp. Probs. 99, 123-25 (2003) (“[The Commission’s] actual methodology is somewhat mysterious; the methodological appendix to the sentencing guidelines does not meet social science standards and seems almost deliberately intended to obfuscate discussion of the methods used.” Id at 123. Also, the Commission’s data did not provide a complete picture for the Commissioners because analysis of the length of sentences did not reveal all the influential factors involved in the sentencing decision. See Carissa Byrne Hessick, Appellate Review of Sentencing Policy Decisions After Kim-brough, 93 Marq. L. Rev. 717, 728 n.64 (2009) (noting that Justice Breyer acknowledged the Commission’s uncertainty as to how a sentencing judge would weigh various factors). Also, the data was skewed because the Commission excluded sentences of probation in its analysis, which constituted about half of the pre-Guidelines sentences. See, e.g., Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers, 56 Stan. L. Rev. 1211, 1222 (2004) (“Before the guidelines, almost 50% of federal sentences were to straight probation. Under the initial guidelines, that figure dropped to around 15 %.”).
The original Commission failed to explain why it applied the “quantity-based” approach of the ADAA mandatory minimums to every drug trafficking sentence. Fifteen-Year Assessment. In 2004, the Commission acknowledged that “documents published at the time of guideline promulgation do not discuss why the [original] Commission extended the ADAA’s quantity-based approach in this way.” Id Although the Commission researched past sentencing practices, the “data was skewed, and at times, ignored.” Judge Nancy Gertner, From Omnipotence to Impotence: American Judges and Sentencing, 4 Ohio St. J. Crim. 523, 534 (2007). The legislative history on the Commission’s development of the Guidelines is sparse. Id at 535. In his dissent in Spears, Judge Bye quoted the Commission’s 2002 report to underscore the haste in which the ADAA passed through Congress:
“Congress bypassed much of its usual deliberative process” when it passed the Anti-Drug Abuse Act of 1986 “[b]ecause of the heightened concern and national sense of urgency surrounding drugs generally and crack cocaine specifically[.]” 2002 Report at 5. “As a result, there were no committee hearings and no Senate or House Reports accompanying the bill that ultimately passed.... Thus, the legislative history for the bill that was enacted into law is limited primarily to statements made by senators and representatives during floor debates.” Id at 5-6.
United States v. Spears,
Recent legislative direction was an important consideration and, if particularly clear, essentially superseded the current-practice analyses. Thus, the sentences for drug offenses, which reflect the recent passage of the Anti-Drag Abuse Act, are much higher than in current practice. The guidelines for drug offenses do, however, draw upon current practice to some extent.
Supplementary Report at 18. In Breyer’s analysis of the Guidelines process, he described the ADAA as a “change in the law independent of the Guidelines.” Breyer, supra, at 24 n. 121. “It is important to remember that the Guidelines consider only past sentencing practices, and that some federal legislation contains stricter minimum sentences [ADAA] that will increase the federal prison population significantly.” Id. at 24. This perspective suggests the Commission did not have any control regarding the adoption of the ADAA to the Guidelines. Breyer’s thorough explanation of the Commission’s creation of the Guidelines lacks any discussion of the role of mandatory minimum penalty statutes or any Congressional directives related to the ADAA. See Paul J. Hofer, Empirical Questions and Evidence in Rita v. United States, 85 Denv. U.L. Rev. 27, 47 (2007).
In Kimbrough, the Supreme Court found that the Guidelines’ 100:1 powder/crack ratio was not based on the Sentencing Commission’s empirical research, but, instead, was simply borrowed from the ratio Congress used to set minimum and maximum sentences in the ADAA. Id. at 95-96,
ii. The methamphetamine Guidelines are not based on empirical data
The methamphetamine Guidelines have evolved through a series of amendments over the years, and the penalties for methamphetamine offenses have increased dramatically.
The initial sentencing Guidelines, following the mandatory minimum quantity thresholds established in the ADAA “did not list methamphetamine in the drug table because they were not subject to the 1986 Act. U.S. Sentencing Comm’n, Methamphetamine: Final RepoRT of the WORKING Group 7 (1999), available at http:// www.ussc.gov/Research/Working_Group_ Reports/Drugs/199911_Meth_Report.pdf [hereinafter Methamphetamine Report], When the initial Guidelines took effect on November 1, 1987, methamphetamine was listed in the “Drug Equivalency Tables” as a Schedule II stimulant with an equivalency equal to twice that of cocaine. Id. While the reasoning is unknown, the Commission made 1 gram of methamphetamine equal to 2 grams of cocaine. Methamphetamine Offenses, at 1. If Hayes were sentenced for the same offense in 1987, he would have a base offense level of 16 and a Guidelines range of 46-57 months. U.S. SENTENCING COMM’N, GuIDELINES MANUAL 239 (1987); Defendant’s Brief at 28-30.
The Anti-Drug Abuse Act of 1988 established mandatory mínimums for methamphetamine trafficking offenses. Methamphetamine Report 7. The Commission incorporated the mandatory mínimums to correspond the Guidelines ranges at base offense levels 26 and 32 to the triggering quantities. Methamphetamine Offenses, at 1. Pursuant to the 1988 Act, 10 grams of methamphetamine or 100 grams methamphetamine mixture triggered the 5-year minimum, and 100 grams methamphetamine or 1 kilogram methamphetamine mixture triggered the 10-year minimum. Methamphetamine Report at 7-8. Thus, there was a 10:1 quantity ratio between the 10-year and 5-year mínimums. Id. at 8. The 1988 Act also used a 10:1 ratio for mixture to pure substance.
The Crime Control Act of 1990 instructed the Commission to increase the methamphetamine Guidelines for Ice by two levels. Methamphetamine Report at 9. The Commission amended the Guidelines in 1991, making both Ice and actual methamphetamine four to eight levels higher than mixture. Methamphetamine Offenses, at 3. “[T]he Commission reasoned that it could best achieve the enhanced punishment purpose of the instruction in a manner consistent with the Guidelines’ structure by treating Ice, a form of methamphetamine that typically was 80 to 90 percent pure, as if it were 100 percent pure methamphetamine.” Methamphetamine Report at 9.
In 1991, the Commission amended the Drug Equivalency Tables to simplify the Guidelines calculations for when multiple drugs are involved by expressing the equivalences for all controlled substances
In the Comprehensive Methamphetamine Control Act of 1996, Congress instructed the Commission to amend the Guidelines by increasing the punishment for methamphetamine trafficking offenses. Id. The Commission added a two-level enhancement if the defendant knew the chemicals were imported unlawfully, a two-level enhancement for an environmental offense, and it cut the quantity in half for methamphetamine mixture. Id. at 11. “As a result, the quantity of methamphetamine mixture needed to trigger a Guidelines range corresponding to the statutory mandatory minimum sentences was 50 grams for five years (compared to 100 grams under the statute) and 500 grams for ten years (compared to 1000 grams in the statute).” Methamphetamine Offenses, at 6. The ratio between mixtures to actual methamphetamine changed from 10:1 to 5:1. Methamphetamine RepoRt at 11.
In the Methamphetamine Trafficking Penalty Enhancement Act of 1998, Congress cut the quantities of both methamphetamine mixture and actual methamphetamine necessary to trigger the five and ten year mandatory mínimums. Id. at 12. “As a result, offenses involving 5 grams of methamphetamine (actual) are assigned a base offense level 26, and offenses involving 50 grams of methamphetamine (actual) are assigned a base offense level 32.” Methamphetamine Offenses, at 10. Therefore, after October 21, 1998, the five-year mandatory minimum is triggered by 5 grams of methamphetamine or 50 grams of methamphetamine, and the ten-year mandatory minimum is triggered by 50 grams of methamphetamine mixture or 500 grams of methamphetamine mixture. Methamphetamine RepoRt at 12. Equal treatment of methamphetamine actual and crack was “an overt objective noted and apparently sought by some sponsors of the legislation.” Id.
The current Guidelines distinguish between two forms of methamphetamine powder: actual and mixture. 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. U.S.S.G. § 2Dl.l(c).
In 2010, a mandatory minimum penalty applied in 83.1% of methamphetamine cases, the highest rate of any drug type. Mandatory Minimum RepoRT at 153. For methamphetamine cases carrying a mandatory minimum, more than half (58%) of the offenders received relief from a mandatory minimum at sentencing. Id. at 227. About one quarter of those methamphetamine offenders (26.8%) received relief from the safety valve. Id. For providing substantial assistance to the prosecution, 21.2% of the methamphetamine offenders received relief from the mandatory minimum penalty. 10% of methamphetamine offenders received relief from both the safety valve and substantial assistance motions. Id. For methamphetamine offenders subject to the mandatory minimum at sentencing, the average sentence length in 2011 was 144 months. Id. at 229. This is the highest average sentence length for any drug- type. Id. For methamphetamine offenders who received relief from the mandatory minimum, the average sentence length was 72 months. Id. at 230. Less than forty percent (38.3%) of all methamphetamine offenders subject to a mandatory minimum in 2011 received a sentence within the Guidelines, range. Id. at 231.
“No other drug is punished more severely based on purity.” Amy Baron-Evans, Deconstructing the Meth Guidelines, Presentation for the Sentencing Resource Counsel, Federal Public and Community Defenders, at 12, available at txn. fd.org/Meth.pps. The Commission assumed that offenses involving actual methamphetamine are more severe than offenses involving mixtures of methamphetamine. The Commission reasoned: “Since controlled substances are often diluted and combined with other substances .as they pass down the chain of distribution, 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.” U.S.S.G. § 2D1.1., cmt. n.26(c). While it may seem logical to punish a' pure substance more than mixed substance, there is no support in the legislative history to explain the formula underlying greater methamphetamine purity to greater months of imprisonment. See Amy Baron-Evans, Deconstructing the Meth Guidelines, Presentation for the Sentencing Resource Counsel, Federal Public and Community Defenders, at 12, available' at txn.fd.org/Meth.pps. This issue is heightened when the offender was merely a courier or mule who has no knowledge of the purity of the methamphetamine he or she is transporting. In an exchange in United States v. Santulones, the court recognized the unwarranted disparity created by the methamphetamine Guidelines:
AUSA: But the Sentencing Commission has evolved its calculation of the guidelines based upon the evolution of whatever information was available to them.
The Court: Which may or may not be politics.
AUSA: Right, sir.... I don’t know that it has any scientific basis. All I know, Your Honor, it’s been looked at over time and has changed and evolved, which would imply that there was been — it could have been political, but it would certainly imply that somebody has looked at something ...
The Court: I find that there is no empirical data or study to suggest that actual purity should be punished more severely by an arbitrary increase of the four levels in this case or at the higher level. It seems to be black box science, as best I can determine. I probably would not allow it under Daubert, based on what I know at present. It seems to be contrary to any empirical evidence, and really undermines Section 3553(a), as it does create an unwarranted disparity. It seems to me that this is not even a rough approximation to comply with 3553, and is not really based on any consultation or criminal justice goals or data.
Jennifer Niles Coffin, Where Procedure Meets Substance: Making the Most of the Need for Adequate Explanation in Federal Sentencing, Champion, Mar. 2012, at 36 (quoting Transcript of Sentencing Hearing, United States v. Santillanes, No. 07-619 (D.N.M. Sept. 19, 2009), available on PACER at https://ecf.mmd.uscourts.gov/ docl/12111917143). With its focus on quantity, the Guidelines’ system “was designed to punish bigger distributors more harshly, but that result cannot be achieved when the presumptive purity assigned under the Guidelines’ scheme does not correlate to the actual purity of the drug being distributed and does not reflect the reality of the market for that drug.” Ortega,
In United States v. Newhouse,
Compared to methamphetamine, marijuana, once stripped from the plant, takes 20,000 times greater quantity (100,000 grams) to trigger a five-year mandatory minimum. Compared to methamphetamine, powder cocaine takes 100 times greater quantity (500 grams) to trigger a five-year mandatory minimum. Compared to methamphetamine, heroin takes twenty times greater quantity (100 grams) to trigger a five-year mandatory minimum. Compared to methamphetamine, crack, after the passage of the Fair Sentencing Act, now takes nearly six times greater quantity (28 grams) to trigger a five-year mandatory minimum. See 21 U.S.C. § 841.
Newhouse,
This review of the history of the methamphetamine Guidelines illustrates how the Guidelines were crafted by Congressional directive and not precise analysis and empirical research. “A district court’s authority to vary from the applicable Guidelines range due to a policy disagreement is at its greatest when the offense Guidelines at issue are not the product of the Commission’s empirical analysis and technical expertise.” Diaz,
b. The methamphetamine Guidelines are excessive
The methamphetamine offense Guidelines are excessive because they subject all defendants to harsh treatment, regardless of their role in the offense. “The Commission’s lineage of the Guidelines ranges for drug trafficking offenses to the ADAA’s weight-driven regime has resulted in a significantly more punitive sentencing grid than Congress intended in passing the ADAA.” Diaz,
The Guidelines’ quantity-driven, “market-oriented” approach is not a proxy for culpability in every case, nor does it always correlate to the purposes of sentencing under 18 U.S.C. § 3553(a). Drug quantity is only an accurate measure when it corresponds to a defendant’s position in the typical hierarchy that characterizes most drug conspiracies. Where the defendant falls in this hierarchy is an important factor in the court’s assessment of a defendant’s ultimate culpability. Although the quantity-based system was designed to punish bigger distributors more harshly, charging practices and the government’s control over the number and amount of controlled buys from undercover agents can result in an erroneous impression that a long-term, small-quantity distributor is a large-quantity distributor.
Hubel,
False uniformity occurs when we treat equally individuals who are not remotely equal because we permit a single consideration, like drug quantity, to mask other important factors. Drug quantity under the Guidelines treats as similar the drug dealers who stood to gain a substantial profit, here the purchaser who escaped, and the deliveryman, Cabrera, who received little more than piecework wages.
Id. at 273 (varying downward and rejecting the cocaine Guidelines on the basis of “the over-emphasis on quantity and the under-emphasis on role in the offense”). Judge Gertner identifies two fundamental problems with the Guidelines system: “the overemphasis on quantity and the under emphasis on role in the offense.” Id. at 275.
The methamphetamine Guidelines range is overinclusive, because it subjects all defendants to harsh treatment, not just the managers and leaders of the drug enterprise. The Commission’s analysis of a 15-percent sample of fiscal year 2009 drug cases indicates that the mandatory minimum penalties for drug offenses have a wider reach than Congress intended:
The majority of offenders in nearly every function, including low-level Secondary and Miscellaneous functions, were convicted of an offense carrying a mandatory minimum penalty, although higher level functions tended to be convicted of such statutes at higher rates. The Commission’s analysis found that, for every function, the quantity of drugs involved in the offense resulted in a base offense level that included or exceed the five-year mandatory minimum penalty. Furthermore, the Commissions’ analysis revealed that the quantity of drugs involved in an offense was not closely related to the offender’s function in the offense.
MANDATORY MINIMUM REPORT.
The Commission organizes offenders on a continuum of decreasing culpability:
• High-Level Supplier/Importer: Imports or supplies large quantities of drugs (one kilogram or more); is near the top of the distribution chain; has ownership interest in the drugs; usually supplies drugs to other drug distributors and generally does not deal in retail amounts.
• Organizer/Leader: Organizes or leads a drug distribution organization; has the largest share of the profits; possesses the most decision-making authority.
• Grower/Manufacturer: Cultivates or manufactures a controlled substance and is the principal owner of the drugs. .
• Wholesaler: Sells more than retail/user-level quantities (more than one ounce) in a single transaction, purchases two or more ounces in a single transaction, or possesses two ounces or more on a single occasion, or sells any amount to another dealer for resale.
• Manager/Supervisor: Takes instruction from higher-level individual and manages a significant portion of drug business or supervises at least one other coparticipant but has limited authority.
• Street-Level Dealer: Distributes retail quantities (less than one ounce) directly to users.
• Broker/Steerer: Arranges for drug sales by directing potential buyers to potential sellers.
• Courier: Transports or carries drugs using a vehicle or other equipment.
• Mule: Transports or carries drugs internally or on his or her person.
MANDATORY Minimum Report at 166-67. More than half of the methamphetamine offenders in every role category were subject to a mandatory minimum. Id. The majority of defendants in methamphetamine offenses are neither managers nor leaders. See U.S. Sentencing Comm’n, 2012 SourcebooK Of Federal Sentencing Statistics Table 40 (2012) (providing data that shows approximately 93.8% of methamphetamine defendants sentenced in 2012 were not leaders). However, the Guidelines ranges for methamphetamine offenses are triggered by quantity, so all offenders, whether they are managers or not, receive an elevated penalty as long as the offense meets the threshold quantity of methamphetamine. The vast majority of offenders are subjected to the harsh sentencing system that Congress intended for only the leaders. The leaders receive an escalated sentence.
The methamphetamine Guidelines are fundamentally flawed because they fail to consider additional factors beyond quantity. The system is too severe in the indiscriminate way it treats offenders. Efforts by Congress-and the Commission to mitigate the severity of the Guidelines “commendable in sprit, amount to gnats around the ankles of the elephant.” Diaz,
c. The methamphetamine Guidelines ranges are not heartlands
In the original Sentencing Guidelines Manual of 1987, the Commission described the role of the Guidelines:
The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
Despite the Commission’s intention to make each guideline a heartland, sentencing data over the years reveal that the Guidelines range for methamphetamine offenses do not constitute the typical case or heartland. “The Guidelines ranges are not now, and have never been, the ‘heartlands’ the Commission sought to establish.” Diaz,
The Court in Kimbrough explained that “a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case ‘outside the “heartland” to which the Commission intends individual Guidelines to apply.’ ”
In the first Guidelines Manual, the Commission described the Guidelines as an evolving system that the Commission would shape over time. U.S. Sentenoing Guidelines Manual § 1.4 (1987) (“these initial guidelines are but the first step in an evolutionary process”). Part of the Commission’s mission is to “periodically review and revise, in consideration of comments and data coming to its attention, the guidelines.” 28 U.S.C. § 994(o). The statutory mission in the current U.S. Sentencing Guidelines Manual advises that the “guidelines-writing process [is] evolutionary” and expects “that continuing research, experience, and analysis will result in modifications and revisions to the Guidelines through submission of amendments to Congress.” U.S. Sentencing Guidelines Manual § 1.A.2 (2012). Despite statistics illustrating the ill-fitting methamphetamine offense Guidelines, the Commission has not followed through on its commit
C. Application
The Guidelines were intended to be evolutionary in nature, and policy disagreements provide a valuable function in the process of constantly improving them. As Judge Gleeson observed, “These policy disagreements are healthy.” Diaz,
A variance based on a policy disagreement is particularly appropriate for methamphetamine offenses because the Guidelines range results in sentences greater than necessary to achieve sentencing objectives and the Guidelines are not based on empirical data and national experience. See Kimbrough,
I agree with Judge Gleeson’s analysis of the flaws in the Guidelines range for drug-trafficking offenses, as it pertains to methamphetamine offenses, which constitute the majority of drug-trafficking offenses in the Northern District of Iowa. Therefore, I will follow Judge Gleeson’s recommendation of reducing the penalty by one third for methamphetamine offenses in response to the fundamental problems with the methamphetamine Guidelines range. See Spears,
As I have done with policy disagreements in prior cases, I will calculate the Guidelines range under the existing Guidelines, and then I will calculate an alternative Guidelines range based on a one third reduction. Next, I will either use or vary from that alternative Guidelines range depending upon my consideration of the 18 U.S.C. § 3553(a) factors. This methodology for determining a defendant’s sentence is consistent with the three-step process reiterated by the Eighth Circuit Court of Appeals:
The first step in the sentencing process is to determine the proper guidelines range for the defendant’s sentence. Gall v. United States,552 U.S. 38 ,128 S.Ct. 586 , 596,169 L.Ed.2d 445 (2007); [United States v. Thundershield, 474 F.3d [503,] 506-07 (8th Cir.2007)]. A court should then consider whether a departure or a variance is appropriateand apply the factors in 18 U.S.C. § 3553(a). Gall, 128 S.Ct. at 596-97 ; Thundershield,474 F.3d at 506-07 .
United States v. Roberson,
In this case, I first calculated the defendant’s advisory sentencing Guidelines range based on the current Guidelines and considered whether any adjustments or departures from that Guidelines range were appropriate. This calculation, based on the current Guidelines, resulted in an advisory Guidelines range of 188 to 235 months. There is a mandatory minimum of five years and a statutory maximum of forty years. I overruled Hayes’s objection based on over-representation of criminal history. I granted Hayes’s objection to the career offender enhancement, in part, which reduced his criminal history level from 31 to 29, rather than the level 27 Hayes requested. The resulting Guidelines range was 151 to 188 months. Next, I determined whether any traditional “departure” was appropriate, see United States v. Washington,
III. CONCLUSION
I find that I have the discretion to vary from the Guidelines range for methamphetamine offenses and a variance is appropriate. I am placing less weight on the Guidelines range because of my fundamental policy disagreement with the Guidelines range for methamphetamine drug-trafficking offenses. A sentence pursuant to the Guidelines range would be greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. § 3553(a). For the reasons stated above, I find that defendant Willie Hayes should be sentenced to 75 months’ incarceration.
A Judgment of Conviction in accordance with this Sentencing Memorandum will issue this date.
IT IS SO ORDERED.
IV. APPENDIX
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Notes
. I refer to the United States Sentencing Commission as the "Commission” and the United States Sentencing Guidelines as the "Guidelines” throughout this opinion.
. As the Eighth Circuit Court of Appeals has explained:
" 'Departure' is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.” Irizarry v. United States,553 U.S. 708 ,128 S.Ct. 2198 ,171 L.Ed.2d 28 (2008). A variance, on the other hand, is a "non-Guidelines sentence[] based on the factors enumerated in 18 U.S.C. § 3553(a).” United States v. SolisBermudez,501 F.3d 882 , 884 (8th Cir.2007).
United States v. Mireles,
. See Irizarry,
. Although both the mandatory minimum statutes and the Guidelines calibrate punishment of drug traffickers according to quantity, the Supreme Court has acknowledged that mandatory minimum sentences are both structurally and functionally at odds with sentencing guidelines and the goals the Guidelines seek to achieve, noting that "the guidelines produce a system of finely calibrated sentences with proportional increases whereas the mandatory minimums result in 'cliffs.'” Neal,
. The Comprehensive Crime Control Act was a lengthy piece of legislation that revised many other aspects of the federal criminal justice system including the penalty schemes for federal drug offenders, bail reform measures, and the establishment of a crime victims fund. See Controlled Substances Penalties Amendments Act, Pub.L. 98-473, Tit. II, ch. V, 98 Stat. 2068 (penalty scheme revisions); the Bail Reform Act of 1984, Pub.L. 98-473, Tit. II, ch. I, 98 Stat. 1976 (bail); and Victims of Crime Act of 1984, Pub.L. 98-473, Tit. II, ch. XIV, 98 Stat. 2170 (creation of crime victims fund).
. As Justice Breyer recognized in his concurrence in Pepper:
The trial court typically better understands the individual circumstances of particular cases before it, while the Commission has comparatively greater ability to gather information, to consider a broader national picture, to compare sentences attaching to different offenses, and ultimately to write more coherent overall standards that reflect nationally uniform, not simply local, sentencing policies.
Pepper v. United States, - U.S. -,
. As the Court explained in Kimbrough, one of the Sentencing Commission's institutional strengths is its capacity to base "determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.” Kimbrough,
. For a comprehensive history of the methamphetamine amendments from 1988 to 2012, see Amy Baron-Evans, Promulgation and Amendment of U.S.S.G. § 2D1.1, Methamphetamine Offenses: 1998-2012, available at http://ca7.fd.org/Indiana_Southern/ Documents/Baron-Evans-% 20Meth% 20Pro-mulgation% 20and% 20Amendment% 20His-tory.pdf [hereinafter Methamphetamine Offenses].
. For comparison, in 1989, 1 gram pure methamphetamine =10 grams methamphetamine mixture = 10 grams heroin = 50 grams cocaine =10 kilograms marijuana = 500 milligrams crack. See Amy Baron-Evans, Variance, Departures, and Deconstructing the Meth Guidelines: Current Trends and Cautionary Tales, CJA Trial Panel Annual Training (Dec. 12, 2012), at 109, available at http://ca7.fd.org/Indiana_Southern/ Documents/B aron-Evans-%20Slides.pdf.
. As explained in the Mandatory Minimum RePORT:
Methamphetamine exists in two identifiable forms: (1) as a powder, soluble in water or alcohol; and (2) in crystalline form. The latter, commonly referred to as Ice, is the variant used for smoking the substance. As a powder, the drug is injected, swallowed, or snorted. The Drug Quantity Table specifically references Ice and methamphetamine; distinguishing the latter for sentencing purposes between the pure drug (meth-actual) and a mixture of the drug with adulterants (meth-mix). Methamphetamine-actual and -mix are not different forms of the substance but rather are alternative methods of measuring the severity of the offense both under the mandatory minimum statutes and the guidelines. In a given methamphetamine case (other than Ice), the applicable penalty is the greater of that for the weight of the methamphetamine-mixture, or the amount of actual/pure methamphetamine contained in the mixture, as determined by expert laboratory analysis.
Mandatory Minimum Report at 14 n.40.