United States v. Johnson

          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, ...