United States District Court, M.D. Alabama, Northern Division
OPINION
Myron
H. Thompson, United States District Judge
Defendant
Brandon Anthony Johnson pled guilty to one count of
conspiracy to distribute, etc., 500 grams or more of
methamphetamine and one count of actually distributing, etc.,
more than 500 grams of a mixture containing methamphetamine.
See 21 U.S.C. §§ 841(a)(1) and 846. He essentially
served as middleman in these crimes, arranging for a package
containing 900.1 grams of methamphetamine mixture to be
mailed from where he was in California to a co-defendant in
Alabama.
Johnson
avoided an otherwise applicable 10-year mandatory-minimum
sentence because he qualified for "safety valve"
relief, as expanded by the First Step Act of 2018, Pub. L.
No. 115-391, 132 Stat. 5194, § 402 (2018). With the
mandatory minimum off the table, the government advocated for
a prison sentence within his United States Sentencing
Guidelines range of 108 to 135 months. Johnson, on the other
hand, sought a downward variance based both on the policy
objections to the methamphetamine guidelines that district
courts have increasingly raised in recent years, as well as
his personal history and characteristics. He proposed a
48-month sentence.
As
orally explained at his sentencing and elaborated below, the
court granted Johnson's motion for a downward variance
based on the policy disagreements with the methamphetamine
guidelines that this court shares with a growing number of
district courts across the country. Specifically, sentence
lengths are inordinately driven by the quantity and purity of
the methamphetamine involved in the offense. Both quantity
and purity are unreliable proxies for the offender's role
in the crime and his culpability. In fact, the guidelines do
not give enough weight to the offender's role, which
better indicates culpability.
Simply
put, the methamphetamine guidelines overemphasize quantity
and purity, and underemphasize criminal role. Furthermore,
the court's authority to vary downward based on these
objections was at its apex, given that the methamphetamine
guidelines are not the result of the Sentencing
Commission's empirical research or expertise.
The
government did not dispute any of these criticisms of the
methamphetamine guidelines; instead, it contended that those
critiques did not apply to Johnson's particular
circumstances. The court disagrees. The policy flaws directly
and instructively impacted Johnson, who had a relatively
low-level role in the crime, yet still confronted a high
Guidelines range due to the quantity and purity of the
methamphetamine involved.
Ultimately,
the court 'varied' downward to impose a 64-month
prison sentence, to be followed by three years of supervised
release.
I.
BACKGROUND
A
federal grand jury returned a superseding indictment charging
Johnson with one count of conspiracy (that is, conspiracy to
distribute and possess with intent to distribute 500 grams or
more of methamphetamine), and one count of distribution (that
is, distributing and possessing with intent to distribute
more than 500 grams of a mixture containing methamphetamine).
He pled guilty to both counts.
The
United States Probation Office's Presentence
Investigation Report (PSR) found a base-offense level of 34
applied to Johnson's offenses based on the quantity and
purity of methamphetamine. Specifically, the offenses
involved two packets of methamphetamine mixture contained in
a single package. The first packet weighed 445.72 grams, and
had 70 % purity, resulting in 312 grams of "actual"
methamphetamine. United States Sentencing Commission,
Guidelines Manual § 2D1.1(c), Note B (Nov. 2018)
(USSG).[1] The second weighed 455.38 grams and had 73
% purity, resulting in 332.43 grams of actual
methamphetamine. The total weight of actual methamphetamine
was thus 644.43 grams, triggering a base-offense level of 34.
See USSG § 2D1.1(C)(3). Probation subtracted three
levels for Johnson's acceptance of responsibility, see
USSG § 3E1.1(a)-(b), and determined that his
criminal-history category was II. The total offense level of
31 and criminal-history category of II yielded a Guidelines
range of 121 to 151 months of imprisonment. Probation
recommended a term of 136 months--16 months higher than the
mandatory minimum 120-month sentence for counts one and two
under 21 U.S.C. Trejo, § 841(b) (1) (A) .
Johnson
contended that he qualified for the "safety valve"
under 18 U.S.C. § 3553(f), as amended by the First Step
Act, and that he was therefore not subject to a
mandatory-minimum sentence. Johnson Sentencing Memorandum
(doc. no. 169) at 2-4. In addition, he requested a downward
variance based on policy disagreements with the
methamphetamine guidelines, as well as his history and
personal characteristics. These personal circumstances
included that both his parents passed away soon after he
committed these offenses and that he played college football
and hopes to coach after serving his sentence.
The
court held a sentencing hearing, during which it determined
that Johnson qualified for the safety valve.[2]Applying the
safety valve decreased Probation's initial calculation of
a 31 total offense level by two levels, leaving it at 29. See
USSG § 2D1.1 (b) (18) . However, because the government
informed the court that, in contrast to what Probation had
anticipated, it would not move for the reduction by a third
level for acceptance of responsibility pursuant to USSG
§ 3E1.1 (b), the total offense level increased back up
to 30. Accordingly, Johnson's offense level was 30 and
criminal-history category remained II, producing a Guidelines
range of 108 to 135 months. The court adjourned the hearing
to allow the government to respond to Johnson's policy
arguments. At the second hearing, the government did not
dispute the substance of Johnson's policy criticisms.
Rather, it argued that those criticisms did not apply to him
in light of his role in the offenses. Accordingly, the court
inquired further into the parties' view of Johnson's
role. Both parties agreed that the criminal conduct for which
he was being sentenced involved essentially arranging for the
mailing of 900.1 grams of methamphetamine from California to
his co-defendant Roger Dale Walker, in Elmore County,
Alabama. And initially, based on this conduct, both parties
also agreed that Johnson essentially acted as a
'mule' in the transaction. Ultimately, the court
found that Johnson's role was somewhere between a courier
and broker or middleman.[3]
II.
DISCUSSION
Sentencing
courts may vary from the applicable Guidelines ranges based
on their disagreement with a Guidelines policy. See
United States v. Kimbrough, 552 U.S. 85, 109-10
(2007); see also United States v. Irey, 612 F.3d
1160, 1212 (11th Cir. 2010) (en banc)
("Kimbrough allows a district court to vary
from the Guidelines based solely on its judgement that the
polices behind the guidelines are wrong."); United
States v. Flores-Perez, 2018 WL 4293305, at *4 (11th
Cir. 2018) (unpublished) (noting that Kimbrough
"empowered' district courts with discretion to vary
downward based on a policy disagreement with the applicable
guidelines"); see also Pepper v. United States,
562 U.S. 476, 501 (2011) ("[A] district court may in
appropriate cases impose a non-Guidelines sentence based on a
disagreement with the Commission's views.").
Johnson
makes two overarching policy arguments for a downward
variance. First, he contends, the methamphetamine guidelines
are not based on the Sentencing Commission's empirical
research or expertise, but rather are the vestige of
mandatory-minimum sentencing laws. Second, those guidelines
impose unduly harsh sentences premised on the mistaken idea
that the higher the quantity and purity of drugs involved in
the crime, the higher the defendant's position in the
drug trade. The court will address each argument in turn.
A. Lack
of Empirical Support
In
Kiinbrough, the Supreme Court made clear that a
sentencing court may vary downward at least in part based on
the lack of empirical support underpinning the applicable
guidelines. 552 U.S. at 109-110. There, the Court upheld the
district court's decision to vary downward because of its
policy disagreement with the crack-versus-powder-cocaine
sentencing disparity enshrined in USSG § 2D1.1, the
guideline for drug-trafficking crimes that is also at issue
here. See Kimbrough, 552 U.S. at 91. As the Court
explained, the Commission generally developed the Guidelines
"using an empirical approach based on data about past
sentencing practices." Id. at 96.[4] Crucially,
however, the Commission "did not use this empirical
approach in developing the Guidelines sentences for
drug-trafficking offenses." Id. Instead, the
Commission formulated Guideline 2D1.1(c) based on the
"weight-driven scheme" in the Anti-Drug Abuse Act
of 1986 (1986 Act), Pub. L. No. 99-570, 100 Stat. 3207
(1986). Id. Consequently, Guideline 2D1.1(c) does
"not exemplify the Commission's exercise of its
characteristic institutional role" to "base its
determinations on empirical data and national
experience." Id. at 109 (internal quotation
marks omitted). The Commission's deviation from its
characteristic institutional role in creating Guideline
2D1.1(c) afforded the district court with greater leeway to
vary from that guideline. See Id. at 109-110.
Several
district courts have granted variances at least in part
because the drug-trafficking guidelines are not rooted in
empirical evidence. For example, in United
States v. Diaz, the court placed "almost no
weight" on the Guidelines range for the defendant
middleman in a heroin sale, given that "Guidelines
ranges for drug trafficking offenses are not based on
empirical data, Commission expertise, or," as discussed
later in this opinion, "the actual culpability of
defendants." 2013 WL 322243, at *1 (E.D.N.Y. Jan. 28,
2013) (Gleeson, J.). The court reasoned, based on
Kimbrough, that a "district court's
authority to vary from the applicable Guidelines range due to
a policy disagreement is at its greatest when the offense
Guideline at issue is not the product of the Commission's
empirical analysis and technical expertise."
Id. at 3.
Similarly,
in United States v. Hayes, Judge Bennett concluded
that the "methamphetamine Guidelines are entitled to
less deference than those Guidelines that were based on the
Commission's exercise of institutional expertise and
empirical analysis." 948 F.Supp.2d 1009, 1027 (N.D. Iowa
2013) (examining the history of the methamphetamine
guidelines, which evolved through a series of amendments
beginning with the establishment of mandatory minimums for
methamphetamine trafficking offenses in the Anti-Drug Abuse
Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181
(1988));[5] see also United States v.
Castellanos, 2008 WL 5423858, at *7 (D. Neb. Dec. 29,
2008) (Bataillon, C.J.) (holding in a
methamphetamine-sentencing case that, "because the drug
offense Guidelines 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"); United States v. Ibarra-Sandoval,
265 F.Supp.3d 1249, 1252 (D.N.M. 2017) (Brack, J.) (varying
downward in part because the "methamphetamine Guidelines
are not based on empirical data").
In
another opinion, United States v. Nawanna, Judge
Bennett specifically found that the methamphetamine
guidelines' 10-to-l ratio between methamphetamine mixture
and actual methamphetamine was not based on empirical
analysis. See 321 F.Supp.3d 943, 950-51 (N.D. Iowa
2018). The lack of evidence supporting the ratio served to
justify his downward variance on policy grounds. Id.
Consistent
with Kimbrough and the district court opinions
discussed above, reduced deference to the methamphetamine
guidelines is due here because they are not the result of
empirical study and expert analysis. Because the Commission
did not exercise "its characteristic institutional
role" in developing the methamphetamine guidelines,
Kimbrough, 552 U.S. at 109, this court has greater
latitude to make a downward variance based on policy
disagreements with them, see Diaz, 2013 WL 322243,
at *3 . The opinion will now address those disagreements.
B.
Quantity and Purity
i.
Quantity
USSG
§ 2D1. (c) sets forth "a drug quantity table based
on drug type and weight to set base offense levels for drug
trafficking offenses." Kimbrough, 552 U.S. at
96. The greater the quantity of drugs, the higher the
base-offense level, and thus sentencing range. This
quantity-based approach originated in the 1986 Act, which
"created a two-tiered scheme of five- and ten-year
mandatory minimum sentences for drug manufacturing and
distribution offenses." Id. at 95. In the 1986
Act, "Congress sought to link the ten-year mandatory
minimum trafficking prison term to major drug dealers and to
link the five-year minimum term to serious traffickers."
Id. (internal quotation marks omitted). The 1986 Act
used the weight (and thus quantity) of the drugs involved in
the offenses "as the sole proxy to identify
'major' and 'serious' dealers."
Id.[6] Even though the statute specified only the
two quantities of each drug that would trigger the mandatory
sentences, the Commission decided to extend the
quantity-based approach across the full range of possible
drug quantities. See Kimbrough, 552 U.S. at 97.
At the
time the Commission adopted the Guidelines, it failed to
explain why it decided to implement the quantity-based
approach for all trafficking offenses, and to thereby
"greatly elevate[]" the "importance of
quantity" as "compared to other offense
characteristics." United States Sentencing Commission,
Fifteen Years of Guidelines Sentencing: An Assessment of
How Well the Federal Criminal Justice System is Achieving the
Goals of Sentencing Reform, at 49-50 (2004),
https://www.ussc.gov/sites/default/files/pdf/research-heads
of organizations." United States Sentencing Commission,
Fifteen Years of Guidelines Sentencing: An Assessment of
How Well the Federal Criminal Justice System is Achieving the
Goals of Sentencing Reform, at 48 (2004),
and-publications/research-projects-and-surveys/miscellaneous/15-
year-study/15yearstudyfull.pdf (hereafter Fifteen Years
of Guidelines Sentencing) ; see also Kate Stith
& Jose A. Cabranes, Fear of Judging: Sentencing
Guidelines in the Federal Courts 69 (1998) (asserting
that the Commission had "nowhere stated, much less
explained, why these quantifiable differences in harm caused
are appropriate measurements of the extent of
individual culpability") .[7] In 2008, more than 20 years after
the Guidelines were originally promulgated, Judge Gertner
wrote that the Commission still had not "explained how
drug quantity is meant to measure offense seriousness, ...