Criminal Practice – Record supports sentencing court’s drug conspiracy conclusion

Where defendants challenged their sentence for conspiracy to distribute and possess ice-level purity methamphetamine, it was not clearly erroneous for the district court to rely on testing results and circumstantial and direct evidence to conclude the conspiracy was centered on ice methamphetamine and that each appellant knew or should have known that fact.

Background

Bradley Scott Williams, Larry Levi Bennett, James Robert Johnson and Shawn Wayne Farris each pled guilty to conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine. While their pleas did not specify that the methamphetamine was of ice-level purity, the district court at sentencing found that the conspiracy involved ice and that each was responsible for its distribution. Based on those findings, the district court sentenced appellants using ice guidelines.

Williams, Bennett, Johnson and Farris challenge their sentences, arguing first that the court should have categorically rejected the ice guidelines on policy grounds due to the 10-to-1 sentencing disparity between ice methamphetamine and lower-purity methamphetamine. Williams, Johnson and Bennett further argue that it was not reasonably foreseeable to them that the conspiracy involved ice, which the guidelines define as methamphetamine that is at least 80% pure. Separately, Johnson argues that the district court failed to consider his argument that his presentence report substantially overrepresented his criminal history.

Sentencing disparity

Under United States v. Booker, 543 U.S. 220 (2005), sentencing guidelines are “effectively advisory.” For that reason, district courts have discretion to reject the ice guidelines on policy grounds and, as appellants note, some have done so. But just because you can does not mean you must.

Here, the district court decided not to reject the ice guidelines because of the vastness of this conspiracy and the danger posed by ice and the appropriateness of treating higher purity methamphetamine more seriously than lower purity methamphetamine. The district court had discretion as to whether or not to reject the ice guidelines. This court finds no abuse of that discretion in the district court’s decision.

Individualized assessment

Appellants next argue that the district court erred in applying the ice guidelines. Appellants argue that the district court failed to perform an individualized assessment of whether the conspiracy’s involvement in ice, as opposed to the sale of a lower purity methamphetamine, was reasonably foreseeable to each appellant. This court has not specifically addressed the type of evidence required to establish that it was reasonably foreseeable to a defendant that the conspiracy of which he was a part involves ice.

It concludes that the district court must have latitude to consider whatever reliable evidence is available to make its 80% purity determination. That can include evidence of a drug’s source, price and appearance as well as statements or testimony by co-conspirators, users or dealers. However, while such evidence may be used, it must be sufficiently reliable and specific that it actually supports the government’s position that the drug’s purity is 80% or above.

Here, given the evidence presented as to each of the appellants, it was not clearly erroneous for the district court to determine that the government met its burden of proving the conspiracy involved ice. The district court did not err in determining that the testing results of some of the methamphetamine in the conspiracy, as well as the circumstantial and direct evidence as a whole, was sufficient to establish that this conspiracy was centered on ice methamphetamine and that each appellant knew or should have known that fact.

Johnson

Johnson contends that two additional points were added to his criminal history calculation for being on probation for a DUI charge during 30 days of the conspiracy. That DUI offense also added one point to the criminal history calculation. Thus, at the sentencing phase, Johnson argued that his presentence report overrepresented the seriousness of his criminal history, warranting a downward variance. Johnson also requested a two-level variance so that he would benefit from the First Step Act’s safety valve application. He claims that the district court was required to address his arguments and its failure to do so constitutes an abuse of discretion. The district court, however, sufficiently addressed Johnson’s arguments.

Affirmed.

United States v. Williams (Lawyers Weekly No. 001-191-21, 20 pp.) (A. Marvin Quattlebaum Jr., J.) Case Nos. 20-4002, 20-4086, 20-4123, and 20-4225. Nov. 23, 2021. From W.D. Va. at Abingdon (James P. Jones, S.J.) Nicholas David Smith for Appellants. Samuel Cagle Juhan for Appellee.