Opinion
Civil No. 03-980 ADM, Criminal No. 99-229(3) ADM/AJB.
July 30, 2004
Jon M. Hopeman, Esq., and Eric J. Riensche, Esq., Felhaber Larson Fenlon Vogt, P.A., Minneapolis, MN, on behalf of Petitioner Mateo R. Morales.
Jeffrey S. Paulsen, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Respondent United States of America.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On May 7, 2004, an evidentiary hearing was held in this matter before the undersigned United States District Judge, pursuant to prior order of the Court on Petitioner Mateo Morales' ("Petitioner") Motion to Vacate, Set Aside, Grant a New Trial, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket Nos. 269, 289]. See Order of 12/18/03 [Docket No. 296] ("2255 Order"). The hearing was limited to the sole issue of the amount of methamphetamine to be properly attributed to Petitioner, based upon his assertion that his constitutional right to be sentenced on the basis of reliable information was violated by the lack of trial evidence of the Defendants' particular drug production capabilities. Petitioner argues that the proof adduced only supports a finding of a trace quantity of methamphetamine and that his sentence should therefore be reduced to the 210-240 month range. The government contends that Petitioner has had an abundance of substantive legal due process and that the evidence continues to sustain the 360-month sentence initially imposed. The facts underlying and giving rise to the present issues are set forth in the 2255 Order and are incorporated by reference for the instant memorandum opinion.
These respective positions were based upon the ranges set forth in the United States Sentencing Commission Guidelines Manual ("Guidelines"), which have acquired newfound uncertainty since the time of Petitioner's § 2255 Motion and hearing. See Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004); United States v. Mooney, 2004 WL 1636960 (8th Cir. July 23, 2004). The current applicability and role of the Guidelines is addressed below.
II. DISCUSSION
At the evidentiary hearing, both parties presented experts to testify regarding the production of methamphetamine in professional and clandestine laboratories. The government's chemist, Dr. James DeFrancesco ("Dr. DeFrancesco") of the Federal Drug Administration, testified that he was familiar with the "cooking" method used by Petitioner and the co-Defendants in this case and that he had produced methamphetamine using this "Birch Reduction" method. He cited a study published in a professional journal in which the chemists obtained a yield of 89%, plus or minus 9%, of actual methamphetamine from pseudoephedrine in professional laboratory conditions. See Gov't Ex. 2. Dr. Francesco stated that the Iowa study previously cited by Petitioner, finding yields of 40-60%, accurately reflected a likely production of pure methamphetamine when manufactured in a clandestine laboratory, although he and others in the field believe a clandestine yield as high as 80% would be a reasonable estimate.
Petitioner's expert, Dr. Terry Martinez ("Dr. Martinez"), opined that the recipe introduced at Defendants' trial was not viable for a number of reasons. He identified seven potential "gaps" in information he believed could lead to mistakes that would result in a reduced or zero yield. See Pet.'s Mem. at 6-7, 10. Dr. Martinez conceded, however, that the recipe in this case was personalized for Frank Rizzi, one of Petitioner's co-Defendants, and therefore that some experience or knowledge may have been presumed that would have allowed the cook to fill in the missing details. He further testified that the Birch Reduction method, when properly followed, can yield 40-50% actual methamphetamine. Although Dr. Martinez stated that the Iowa study did not include a recipe identical to the "Rizzi recipe," he considers it the authoritative research on illegal production of methamphetamine and concurs with the results.
Even though Petitioner's conviction and sentence were affirmed on direct appeal, Petitioner did not raise the specific issue of drug quantity, and given its driving force in the length of the sentence imposed, Petitioner was given an opportunity to challenge the evidence of the amount of methamphetamine properly attributed to him. Upon second review, the evidence sustains the finding that Defendants' conspiracy involved at least 50 grams of methamphetamine, the minimum amount necessary to trigger the sentencing range in which Petitioner fell. See 21 U.S.C. § 841(b); Guidelines § 4B1.1. Petitioner has not refuted the 40-50% yield figures, or the 172 grams of pseudoephedrine possessed by Defendants at various times, as introduced at trial. See Tr. Day 2 at 54-59; Tr. Day 3 at 94-95. Even applying the lowest percentage to this quantity of precursor places Petitioner above the 50 gram level.
The only evidence presented that Defendants lacked manufacturing capability was Dr. Martinez's testimony regarding the various pitfalls in their recipe. However, it was undisputed that the recipe was indicated explicitly for Defendant Rizzi and that if he had the requisite knowledge or experience, each precise detail of the process need not be included. Moreover, the significant preparatory efforts and expenses expended by Defendants evince their faith in the production abilities of the conspiracy. See, e.g., Tr. Day 2 at 54-55, 69-70; Tr. Day 3 at 77-89 (large number and retail cost of pseudoephedrine packages purchased; testimony regarding theft and transportation of 35 gallons of anhydrous ammonia from out-state Minnesota; testimony of plan for Defendant Rizzi to "cook" methamphetamine). Accordingly, under the applicable law at the time of Petitioner's sentencing, and the attendant preponderance of the evidence standard, the § 2255 Motion would be denied and Petitioner's sentence would stand
Since the time of the hearing, however, the legal landscape with regard to sentencing, enhancements and assignment of fact-finding roles has changed dramatically. Based upon the Supreme Court's recent ruling in Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004), and the Eighth Circuit's interpretation of Blakely as rendering the Guidelines unconstitutional, counsel for Petitioner seeks permission to brief and present oral argument on the issues raised by these cases. See United States v. Mooney, 2004 WL 1636960 (8th Cir. July 23, 2004); Motion for Relief [Docket No. 307]. Because the Guidelines and the determination of the amount of methamphetamine appropriately attributed to Petitioner are at the heart of this matter, the Court grants Petitioner's present Motion and requests memoranda from both parties regarding the applicability and implications ofBlakely, Mooney and Teague v. Lane, 489 U.S. 288 (1989), to the instant case. As no court has held or intimated that the Guidelines are not, at minimum, available as an advisory tool, the results in this case may not be affected by the wake ofBlakely and Mooney. Nonetheless, the issues of the potential retroactivity and impact of these opinions on Petitioner's particular circumstances warrant further exploration.
III. ORDER
IT IS HEREBY ORDERED that Petitioner and Respondent United States of America agree to a briefing schedule for submission of responsive memoranda, and advise the calendar clerk upon reaching an agreement. In the unlikely event of a failure to agree to a schedule, the Court will establish the schedule.