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United States v. Farris

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

October 9, 2019

UNITED STATES OF AMERICA
v.
SHAWN WAYNE FARRIS, ET AL., Defendants.

          S. Cagle Juhan, Assistant United States Attorney, Abingdon, Virginia, for United States.

          Don M. Williams, Jr., Williams Law Office, PLC, Pennington Gap, Virginia, for Defendant James Robert Johnson.

          Correy A. Diviney, Strickland, Diviney & Segura, Roanoke, Virginia, for Defendant Larry Levi Bennett.

          Patrick J. Kenney, Law Office of Patrick J. Kenney, PLC, Roanoke, Virginia, for Defendant Donald Shane Hawthorne.

          Neil A. Horn, Neil Horn PC, Roanoke, Virginia, for Defendant Bradley Scott Williams.

          OPINION AND ORDER

          James P. Jones United States District Judge.

         In this multi-defendant drug conspiracy case, four defendants have objected to being sentenced according to the U.S. Sentencing Guidelines Manual's advisory sentencing ranges for "ice" methamphetamine, a higher-purity methamphetamine. The defendants contend that they should instead be sentenced according to the guidelines for methamphetamine mixtures that are less pure. They argue that the government has not shown that it was reasonably foreseeable to them that the conspiracy involved ice methamphetamine. Alternatively, they contend that I should reject on policy grounds the guidelines' higher sentencing ranges for ice methamphetamine. In this opinion, I resolve these objections.

         I.

         In 2017, law enforcement became aware of a drug trafficking organization ("DTO") led by Shawn Wayne Farris, that was transporting and distributing methamphetamine from California to southwest Virginia and northeast Tennessee. On October 24, 2018, a grand jury of this court returned an Indictment charging Farris and 27 other defendants in Count One with conspiring to distribute and possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A)(viii), 846.

         At present, 16 of the defendants have entered into plea agreements in which they stipulate that they were involved in the distribution of ice methamphetamine. However, the four defendants at issue here - James Robert Johnson, Larry Levi Bennett, Donald Shane Hawthorne, and Bradley Scott Williams - pleaded guilty to Count One without plea agreements and have made no stipulations as to the purity of the methamphetamine with which they were involved.

         The Presentence Investigation Report ("PSR") prepared for each of these defendants states that "[w]hile all of the methamphetamine involved in this conspiracy was crystal methamphetamine, also known as 'Ice,' it will simply be referred to as methamphetamine throughout this report." See, e.g., PSR for James Robert Johnson 4, ECF No. 614. The PSRs and the evidence presented at each sentencing hearing also show the following facts regarding each defendant's individual involvement in the DTO as relevant to the present issues.

         A. James Robert Johnson.

         In March of 2016, a confidential source reported to law enforcement that she had used methamphetamine belonging to Johnson and she had also obtained a total of 20 grams of methamphetamine from him. In addition, a search of an unindicted coconspirator's cell phone in June of 2016 revealed text messages with Johnson, in which the coconspirator had ordered methamphetamine from Johnson on multiple occasions.

         In March of 2017, a confidential source reported to law enforcement that she had been selling methamphetamine for the past two years and Johnson had been her source until August of 2016. She also reported that Andrea Stickel, another defendant in this case, had been Johnson's source. In November of 2017, another confidential source told law enforcement that Johnson distributed methamphetamine, and she had observed him obtaining it from Stickel. Stickel was previously involved in a relationship with Johnson and they distributed methamphetamine together.

         (XXXXX), [1] a defendant in this case, told law enforcement that Johnson had supplied him with methamphetamine. (XXXXX), another of Johnson's codefendants, told law enforcement that Stickel and Johnson had sold methamphetamine every week between January 2015 and March 2018, and he, Johnson, and Stickel had all been supplied methamphetamine by Farris, the leader of the DTO. Stickel, (XXXXX) and (XXXXX) have all stipulated in their plea agreements that their guideline range should be calculated with respect to ice methamphetamine. Stickel Plea Agreement 4, ECF No. 285; (XXXXX) Plea Agreement 3, ECF No. (XXXXX) Plea Agreement 3, ECF No. (XXXXX). DEA laboratory reports of drugs seized from 10 of Johnson's coconspirators (other than Stickel, (XXXXX) and (XXXXX)) were introduced, and showed that the drugs had purity levels greater than 80%. Gov't Ex. 2, ECF No. 634.

         Following his arrest, Johnson told law enforcement officers that he had obtained 3.5 to 28.25 grams of methamphetamine "a couple of times a week for two years," indicating between 364 to 2, 948 grams in total. PSR ¶ 147, ECF No. 614.

         An ATF special agent, Justin Masuhr, testified at Johnson's sentencing that most of the methamphetamine now discovered by law enforcement is of ice purity and is imported from Mexico, and "more generally preferred" in this geographical area. Homemade methamphetamine, of a lesser purity, is "almost to zero now."

         The PSR determined that based upon Johnson's involvement with coconspirators Farris, Stickel, (XXXXX) and (XXXXX). Johnson should be held accountable for a drug weight of at least 4.5 kilograms of ice methamphetamine. PSR ¶ 148, ECF No. 614. Based upon that drug weight, Johnson would have a Base Offense Level of 38. With a Total Offense Level of 35, and a Criminal History Category of II, his sentencing range would be 188 to 235 months imprisonment. If I sustained Johnson's objection to the attribution of ice purity, his Base Offense Level would be 32, and the sentencing range would be 97 to 121 months imprisonment.[2]

         B. Larry Levi Bennett.

         On December 8, 2016, law enforcement conducted a controlled purchase of seven grams of methamphetamine from Bennett. A DEA laboratory analyzed the purchased methamphetamine and found that it was not ice ...


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