Policy Disagreement Variances: Attacking the Meth Purity Ratio.

As federal judges noted in the advisory sentencing memo, the United States Sentencing Guidelines and the federal statutes that dictate the statutory minimum sentences for drug offenses are separate legal concepts. While a purity-related Policy Disagreement Variance can decrease a defendant’s recommended advisory sentence by treating methamphetamine as having a purity ratio lower than the ratio of 10:1, it cannot, in and of itself, reduce a sentencing court’s authority to impose the statutory minimum sentence based on the total methamphetamine amount found in the mixture or the amount of actual methamphetamine.

Under 21 U.S.C. § 841, there are several different statutory methamphetamine penalties in place, including:

• 21 U.S.C. § 841(b)(1)(A): an ordinary penalty of at least ten years and up to life imprisonment for violations involving the listed substances and quantities
• 21 U.S.C. § 841(b)(1)(B): a minimum sentence of five years to forty
• 21 U.S.C. § 841(b)(1)(C): an ordinary maximum sentence of twenty years, subject to specified exceptions including mandatory minimums and higher maximums
• 21 U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 841(b)(1)(B) additionally provide for sentences of twenty years to life in cases involving death or serious bodily injury resulting from the use of the substance.

As outlined by 21 U.S.C. § 841, the amounts of actual methamphetamine or methamphetamine mixture that trigger the statutory minimum sentences in subsections (A) and (B) are specified as:

• 21 U.S.C. § 841(b)(1)(A): fifty grams of actual methamphetamine or five hundred grams of a mixture or substance containing a detectable amount of methamphetamine
• 21 U.S.C. § 841(b)(1)(B): five grams of actual methamphetamine or fifty grams of a mixture or substance containing a detectable amount of methamphetamine

Thus, the statutory methamphetamine thresholds also create a ten-to-one mixture-to-actual quantity ratio, creating a second reason to pursue a Purity Ratio Defense in appropriate circumstances. When a federal defendant can prove that this ratio does not hold in their case, i.e., that the purity of the methamphetamine in their case is much lower than what the statutory thresholds assume, this can help remove a defendant from statutory penalties in the higher federal methamphetamine statutes and allow sentencing courts to impose sentences within a much lower range. While removing methamphetamine defendants’ statutory minimum penalties is often difficult, it can make it possible to avoid a ten-year or five-year mandatory minimum sentence if the actual purity ratio is sufficiently low. If you or your loved one is facing methamphetamine charges, you should reach out to our federal methamphetamine attorneys. We can provide invaluable insight into any potential defenses that are available in your case.

Why does the ten-to-one ratio produce a policy dispute under the Guidelines?

The ten-to-one ratio is not just a calculation problem; it is a policy problem, as well. Under U.S.S.G. § 2D1.1, the amount of actual methamphetamine or methamphetamine mixture used in drug offence calculations is broken down into:

• Actual Methamphetamine: According to the Guideline Commentary, this is defined as the weight of the controlled substance itself contained in the mixture or substance.
• Methamphetamine Mixture: The entire weight of any mixture or substance containing a detectable amount of methamphetamine.

Once the amount is broken down into actual methamphetamine and/or methamphetamine mixture, the Guidelines determine the marijuana equivalency for the substance:

The discrepancy between the marijuana equivalency of actual methamphetamine and methamphetamine mixture is what creates the ten-to-one methamphetamine ratio. In those cases, federal judges stated, “the 10:1 ratio between ice and mixed methamphetamine is not necessarily flawed; it just doesn’t reflect how the methamphetamine market actually works... and in fact, the Guideline Commentary expressly acknowledges this. Rather than treating a defendant’s possession of ice as conclusively establishing at least 80 percent methamphetamine purity, it is a better approach to treat a defendant’s possession of ice as establishing at least some purity but not necessarily the 80 percent threshold.”

By applying the same two kilograms marijuana equivalency they used for methamphetamine mixture cases, the two judges were treating actual methamphetamine and methamphetamine mixture with a one-to-one ratio. District courts have the discretion to adopt a “policy-related” departure from the federal sentencing guidelines when necessary to apply statutory sentencing considerations. This allows them to set aside a guideline, as long as they clearly establish that they are not abandoning the guidance, but doing so as a means to further statutory discretion. For methamphetamine defendants facing federal charges, this is one area where the sentencing Guidelines can be challenged on policy grounds.

Which purity evidence can move a meth case from actual to mixture treatment?

According to the case notes: “” When calculating Moore’s sentenec using actual methamphetamine, the result was a proposed offense level of thirty, which corresponds to a proposed guideline range of 130 to 162 months. Moore’s counsel attempted to get Moore’s sentence reduced by presenting the drugs as a methamphetamine mixture, and his counsel argued that this would result in a proposed offense level of twenty-four and, accordingly, a proposed guideline range of 77 to 96 months. The United States Sentencing Guidelines, under U.S.S.G. § 2D1.1, Notes to Drug Quantity Table (B), define methamphetamine (actual) as the weight of the controlled substance itself contained in the mixture or substance; Note (C) defines “Ice” as a mixture or substance containing d-methamphetamine hydrochloride of at least 80 percent purity. While this was enough to overturn the district court’s original sentence, the Seventh Circuit stated: “ had not pointed to any error.” Ultimately, Moore’s counsel were able to establish the status of Moore’s drugs as a mixture, though the case came to a close without further discussion of any of the evidence Moore presented: With the evidence Moore submitted, the Seventh Circuit overturned Moore’s sentencing of 130 to 162 months (based on actual methamphetamine), remanded the case for further proceedings, and ordered that Moore’s sentence be recalculated as a mixture.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.