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United States v. Moreno

United States District Court, W.D. Virginia, Harrisonburg Division

August 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MIGUEL ANGEL MORENO, Defendant.

          MEMORANDUM OPINION

          Michael F. Urbanski, Chief United States District Judge.

         Defendant 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.[1] 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.

         At 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.

         Miguel 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 Moreno's conduct.

         As 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.

         I.

         In 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 Guidelines."

         Although 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.

         II.

         The 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."[2] 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 ice.[3] "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 13, 2019).

         The 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).

         III.

         As recognized by an emerging chorus of district courts around the country, [4] 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 ...


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