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United States v. Saldana

United States District Court, W.D. Michigan, Southern Division

July 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
NOEL FRANCISCO SALDANA, Defendant.

          SENTENCING MEMORANDUM

          JANET T. NEFF UNITED STATES DISTRICT JUDGE.

         The Court issues this memorandum in conjunction with the written Judgment of Sentence to memorialize its policy disagreement with the methamphetamine trafficking guidelines and set forth the Court's methodology for sentencing in methamphetamine cases.

         I

         This is a nine-defendant methamphetamine conspiracy case. Defendant Noel Francisco Saldana was indicted on a multi-count Indictment and subsequently charged in a Superseding Indictment. Defendant entered a plea to Count One of the Superseding Indictment, which charged him with conspiring to possess and distribute 50 grams or more of methamphetamine, a schedule II controlled substance, contrary to 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(viii). The Court summarized the offense behavior at Sentencing on July 2, 2018 as follows:

Between July 2016 and December 2017, Mr. Saldana headed a major methamphetamine distribution organization in West Michigan obtaining large quantities of the drug from co-defendant Jesus Ramirez-Luna, who got the drugs from a supplier in Mexico. Regular shipments were made to the Defendant sometimes on a biweekly basis, but certainly more than once a month.

         Defendant's advisory guidelines were based on a total offense level 41, criminal history category V for advisory guidelines of 360 months to life, with a mandatory statutory minimum of 120 months. Defendant moved for a variance (ECF No. 312), arguing, in pertinent part, that the sentencing guidelines for pure methamphetamine are not justified by empirical data and lead to sentencing disparities (ECF No. 315 at PageID.1625-1626).

         II

         The United States Sentencing Guidelines (U.S.S.G.) are the “starting point and the initial benchmark” for federal sentencing. Gall v. United States, 552 U.S. 37, 49 (2007); United States v. McBride, 434 F.3d 470, 475-76 (6th Cir. 2006). In practice, this means that a district court must begin at the proper base offense level, apply any applicable enhancements or reductions to arrive at the adjusted offense level, and use the resulting offense level with the appropriate criminal history category to arrive at a sentencing range. United States v. Thompson, 515 F.3d 556, 561 (6th Cir. 2008). “Once the district court has calculated the appropriate Guidelines range, it then considers that range in light of the other relevant § 3553(a) factors in fashioning the sentence.” Id. The court must ultimately “impose a sentence sufficient, but not greater than necessary, ” to accomplish the goals of sentencing, including “to reflect the seriousness of the offense, ” “to promote respect for the law, ” “to provide just punishment for the offense, ” “to afford adequate deterrence to criminal conduct, ” and “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2); Kimbrough v. United States, 552 U.S. 85, 101 (2007).

         In determining the base offense level, the Sentencing Guidelines have established a 10:1 ratio between pure or “actual” methamphetamine and an equivalent weight of methamphetamine mixture. The 10:1 ratio was first introduced in the 1989 Sentencing Guidelines. United States v. Hartle, No. 4:16-CV-00233-BLW, 2017 WL 2608221, at *2 (D. Idaho June 15, 2017). No “empirical data from the Sentencing Commission or in the academic literature” appears to justify this ratio. Id. See also United States v. Harry, No. CR17-1017-LTS, 2018 WL 2717224, at *4 (N.D. Iowa June 6, 2018) (“There seems to be no empirical evidence supporting the need for a drastically-increased sentence based solely on the purity of the methamphetamine at issue.”), appeal filed, No. 18-2221 (8th Cir. June 6, 2018).

         “Rather, these distinctions seem to be tiered to a similar 10:1 ratio used in the mandatory minimum sentences imposed by Congress.” Hartle, supra. 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 set at ten times the quantity of the pure methamphetamine triggering that same statutory minimum penalty. Id. at *2, n.2. The Sentencing Commission responded by amending the Guidelines to reflect the 10:1 mixture/pure substance ratio. Id. (citing U.S. Sentencing Comm'n, Methamphetamine: Final Report, at 7 (Nov. 1999)). The 10:1 ratio is “by its very nature, a product of political calculation and compromise rather than empirical analysis.” Id.

         The purpose for increasing a defendant's sentence based on drug purity was apparently “to punish defendants who have prominent roles in drug distribution.” United States v. Ibarra-Sandoval, 265 F.Supp.3d 1249, 1255 (D.N.M. 2017). An application note entitled “Upward Departure Based on Unusually High Purity” sets forth the following rationale:

Trafficking in controlled substances, compounds, or mixtures of unusually high purity may warrant an upward departure, except in the case of PCP, amphetamine, methamphetamine, hydrocodone, or oxycodone for which the guideline itself provides for the consideration of purity (see the footnote to the Drug Quantity Table). The purity of the controlled substance, particularly in the case of heroin, may be relevant in the sentencing process because it is probative of the defendant's role or position in the chain of distribution. 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. As large quantities are normally associated with high purities, this factor is particularly relevant where smaller quantities are involved.

U.S.S.G. § 2D1.1, cmt. n.27(C) (emphasis added).

         As the Supreme Court has noted, the Sentencing Commission “fills an important institutional role: It has the capacity courts lack to ‘base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.'” Kimbrough, 552 U.S. at 108-09 (citation omitted). However, district courts may vary from the Guidelines on policy grounds. Id. at 106-07 (holding that “district courts are free to deviate from the Guidelines based on disagreements with the crack/powder ratio”). In Kimbrough, the Supreme Court indicated 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.” 552 U.S. at 89 (quoting Rita v. United States, 551 U.S. 338, 351 (2007)). In Spears v. United States, 555 U.S. 261, 264 (2009), the Court further indicated that a guideline may be rejected on a categorical basis “and not simply based on an individualized determination that [it] yield[s] ...


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