United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski, Chief United States District Judge.
Miguel Angel Moreno was prosecuted for conspiracy to
distribute and attempted possession with the intent to
distribute methamphetamine resulting from his receipt of a
spare tire he knew contained controlled
substances. Far from a drug "kingpin,"
Moreno, a 22 year old United States citizen with no criminal
history other than driving offenses, qualified for the safety
valve under United States Sentencing Guidelines
("U.S.S.G.") § 5C1.2. Nonetheless, based
solely on the quantity and purity of the methamphetamine
found in the spare tire, Moreno faced a Guideline sentence
range of 135-168 months.
sentencing, the court articulated its reasons for a downward
variance to 36 months, believing that sentence to be
"sufficient, but not greater than necessary" to
comply with the purposes set forth in 18 U.S.C. §
3553(a)(2). The reasons for the downward variance included
Moreno's adverse childhood circumstances stemming from
the abandonment by his father and his mother's tragic
death when he was 13. In his teens, Moreno fell under the
influence of his brother, an incarcerated felon, who arranged
from prison to have methamphetamine shipped to Moreno.
According to Moreno's sentencing memorandum,
He was directed where and when to pick up the drugs, who and
how much to pay for them, and did not have a sophisticated
understanding of who was involved in the offense. Miguel was
involved in the drug distribution activities for no more than
six months. It is clear that but for his brother's
directions and persuasion, Mr. Moreno would not have been
involved in drug dealing at all.
Moreno's Sentencing Memorandum, ECF No. 26, at 3-4. The
government disagreed, contending that Moreno had a more
substantial retail role. United States' Sentencing
Memorandum, ECF No. 28, at 3. Moreno has had a stable work
history, and when faced with these charges, self reported and
performed well on bond prior to sentencing. There was no
suggestion of violence or involvement of firearms in
explained below, the court also varied downwards based on a
categorical policy disagreement with the methamphetamine
Guidelines. This memorandum opinion details the court's
reasons for the policy disagreement.
United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court instructed district courts to read the
Sentencing Guidelines as effectively advisory, serving as
"one factor among several courts must consider in
determining an appropriate sentence." Kimbrough v.
United States, 552 U.S. 85, 90 (2007). While "the
Guidelines should be the starting point and initial
benchmark" of the sentencing process, and must be
considered as a factor in sentencing, they "are not the
only consideration." Gall v. United States, 552
U.S. 38, 49 (2005). After calculating the Guidelines range
and allowing argument, "the district court should then
consider all of the § 3553(a) factors to determine
whether they support the sentence requested by a party. In so
doing, he may not presume that the Guidelines range is
reasonable. He must make an individualized assessment based
on the facts presented." Id. at 49-50. In
Spears v. United States, 555 U.S. 261, 265-66
(2009), the Supreme Court clarified its holding in
Kimbrough, holding that "district courts are
entitled to reject and vary categorically from the . . .
Guidelines based upon a policy disagreement with those
the Sentencing Guidelines are now advisory, the Supreme Court
has "nevertheless preserved a key role for the
Sentencing Commission." Kimbrough, 552 U.S. at
108. "Congress established the Commission to formulate
and constantly refine national sentencing standards."
Id. "[T]he sentencing statutes envision both
the sentencing judge and the Commission as carrying out the
same basic § 3553(a) objectives, the one, at retail, the
other at wholesale." Rita v. United States, 551
U.S. 338, 348 (2007). "Carrying out its charge, the
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.'
United States v. Pruitt, 502 F.3d 1154, 1171 (10th
Cir. 2007) (McConnell, J., concurring)."
Kimbrough, 552 U.S. at 108-09.
Drug Quantity Table found in § 2D1.1(c) of the
Guidelines is the starting point for calculating the base
offense level for drug crimes under the United States
Sentencing Guidelines ("U.S.S.G."). For most drug
offenses, the base offense level reflects the type and
quantity of drug(s) involved. Unlike other controlled
substances, the Guidelines distinguish between three
concentrations of methamphetamine, resulting in a 10:1 ratio
between actual methamphetamine and methamphetamine
mixture." For example, the highest base offense
level, Level 38, applicable here, applies to 45 kilograms or
more of methamphetamine mixture, but this offense level only
requires 4.5 kilograms of actual methamphetamine or
"The practical effect of the ratio is to impose a
presumed purity of 10% for untested methamphetamine
mixtures." United States v. Hoover, No.
4:170cr-327-BLW, 2018 WL 5924500, at *2 (D. Idaho November
methamphetamine Guidelines are not empirically based, but
rather derive the 10:1 purity ratio from the mandatory
minimum penalties contained in 21 U.S.C. § 841(b)(1)(A)
and 841(b)(1)(B). In 1988, Congress set mandatory minimum
sentences for methamphetamine offenses. And-Drug Abuse Act of
1988, Pub. L. No. 100-690, § 6470(g)-(h), 102 Stat.
4181, 4378 (codified at 21 U.S.C. § 841(b)(1). "The
following year, in 1989, the United States Sentencing
Commission revised the Drug Quantity Table in § 2D1.1 by
incorporating the statutory penalties and by differentiating
between actual/pure methamphetamine and methamphetamine
mixtures at the same 10-to-1 ratio." United States
v. Ferguson, No. CR 17-204 (JRT/BRT), 2018 WL 3682509,
at *2 (D. Minn. Aug. 2, 2018). After Congress reduced the
quantities of methamphetamine needed to meet the mandatory
minimum sentences in 1998, the Sentencing Commission followed
suit and increased the base offense levels for
methamphetamine offenses. "To summarize, the commission
twice amended the Guidelines for methamphetamine offenses so
that the base offense levels (for a defendant with a criminal
history category of I) would exactly align with the
mandatory-minimum sentences - and the Commission did so each
time right after Congress created or changed the minimum
sentences." Id. "Consequently, the drug
offense Guidelines are not a reflection of the
Commission's institutional strengths, and a district
court has more discretion to vary from the drug offense
Guidelines based on policy disagreements than in a case where
the applicable guidelines were promulgated pursuant to the
Commission's usual empirical approach." United
States v. Ibarra-Sandoval, 265 F.Supp.3d 1249, 1253 (D.
N.M. 2017) (citing Kimbrough, 552 U.S. at 89).
recognized by an emerging chorus of district courts around
the country,  one problem with the Sentencing
Commission's promulgation of the methamphetamine
Guidelines is that "the Sentencing Commission deviated
from the empirical approach when setting the Guideline ranges
for drug offenses. Rather, the Commission chose to instead
key the Guidelines to the statutory mandatory minimum
sentences that Congress established for those crimes."
Pereda, 2019 WL 463027, at *3 (D. Colo. Feb 6, 2019)
(citing Gall, 552 U.S. at 46 n.2, and United
States v. Diaz, No. 11-821, 2013 WL 322243, at *3-6
(E.D.N.Y. Jan. 28, 2013)). "This creates Guideline
ranges for actual (and ice) methamphetamine that are
excessive and not similar to other Guidelines, which are
intended to be representative of a 'heartland' or
'a set of typical cases ...