United States District Court, W.D. Virginia, Abingdon Division
Cagle Juhan, Assistant United States Attorney, Abingdon,
Virginia, for United States.
Williams, Jr., Williams Law Office, PLC, Pennington Gap,
Virginia, for Defendant James Robert Johnson.
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.
A. Horn, Neil Horn PC, Roanoke, Virginia, for Defendant
Bradley Scott Williams.
OPINION AND ORDER
P. Jones United States District Judge.
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.
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),
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.
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.
James Robert Johnson.
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
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.
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.
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.
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."
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.
Larry Levi Bennett.
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 ...