Opinion
Case No. 00-40001-01-RDR
August 15, 2002
MEMORANDUM AND ORDER
This order is issued to record and elaborate upon the rulings of the court in connection with the sentencing hearing conducted on August 8, 2002. Before proceeding any further, the court wishes to commend both counsel in the case for the quality of their presentations.
Background
Defendant was originally arrested on drug charges by Cherokee County, Kansas law enforcement officers on December 31, 1999. He was released on bond, but arrested again on January 4, 2000. As a result of searches occurring after each arrest, methamphetamine and materials to make methamphetamine were seized from defendant or locations under his control. The federal charges stemming from these arrests were first filed on January 14, 2000. Ultimately, defendant was charged in a three-count indictment.
On April 12, 2000, defendant pleaded guilty pursuant to a plea bargain to: attempting to manufacture methamphetamine (Count one) and possession with the intent to distribute methamphetamine (Count three). In exchange for his plea to these counts, the prosecution agreed not to file a sentencing information pursuant to 18 U.S.C. § 851 and to dismiss Count two at the time of sentencing. Count two was a gun charge under 18 U.S.C. § 924(c). As a result of this plea bargain, defendant avoided the possibility of receiving a mandatory life sentence if the § 851 information had been filed and a consecutive five-year sentence under § 924(c).
On September 1, 2000, defendant was sentenced to two concurrent terms of 168 months. This sentence was based upon a base offense level of 34, an adjusted offense level of 33, and a criminal history category of III. Defendant appealed this sentence and on September 4, 2001 the Tenth Circuit filed an order reversing the sentence because the sentencing court had "based its sentencing decision on a quantity of drugs not supported by the record." 2001 WL 1006137 (10th Cir. 2001). The sentencing court had to find a quantity of drugs for which defendant could be held accountable in order to determine a base offense level under U.S.S.G. § 2D1.1. This, in turn, required the court to project the amount of methamphetamine which could be produced from the empty packages of precursor materials seized from defendant's possession on the basis of an estimated yield percentage. The original sentence was based upon a 100% yield calculation. The Tenth Circuit held that this was not supported by the evidence. The government asked the Circuit to hold that this error was harmless and to adopt a 70% yield percentage. The 70% figure had support in the evidence and would have produced the same Guidelines range. The Circuit declined to do so and remanded the case with the instruction that "the district court is free to select any drug estimate that is supported by the facts, keeping in mind the admonition to err on the side of caution if none of the estimates is more likely than the others to be the correct quantity." Id.
After remand new counsel was appointed for defendant and the case was transferred to the undersigned judge for resentencing. At the resentencing hearing, defendant was sentenced to two concurrent terms of 135 months. This sentence was based upon a finding of a base offense level of 32, an adjusted offense level of 31, and a criminal history category of III, using the version of the Guidelines effective at the time of the crimes in this case. The base offense level was based upon a yield percentage of 50%. The court further indicated that we would have made a downward departure to this sentence had we used a 70% yield percentage.
Drug quantity and yield percentage
According to the presentence report, which is substantially unchallenged, 15.95 grams of methamphetamine and packages which originally contained as much as 469.8 grams of ephedrine were seized from defendant as a result of the traffic stops and searches in this case. ¶¶ 18 and 19 of the report. As already discussed, in cases such as the one at bar the determination of the base offense level requires a calculation of drug quantity. See U.S.S.G. § 2D1.1. In making that determination, the court must first decide what version of the Guidelines to apply, the Guidelines which are currently effective or the Guidelines which were effective at the time of the crimes in this case.
Section 1B1.11 of the Guidelines states that the Guidelines Manual in effect at the time of sentencing should be employed in its entirety unless the court determines that the ex post facto clause of the Constitution would be violated. In the instant case, the ex post facto clause of the Constitution would be violated by applying the current version of the Guidelines. After the crimes in this case were committed, the Guidelines were amended to increase the offense level for the quantity of methamphetamine projected in this case. See Amendment 594 to U.S.S.G., effective November 2000. In addition, a scale for ephedrine possession has been established which increased the base offense level for possession of that chemical. See Amendment 611 to U.S.S.G., effective May 2001. Accordingly, the court applied the Guidelines manual in effect at the time of the crimes in this case.
As mentioned before, this case was remanded so that this court could determine a yield percentage, and thus a drug quantity, which was supported by the facts, keeping in mind that the court should err on the side of caution if none of the estimates was more likely than the others to be correct.
The evidence regarding yield percentage was presented primarily by two expert witnesses who testified at the first sentencing hearing. In addition, defendant has asked the court to give weight to the comments contained in the Guidelines Manual with reference to Amendment 611.
Defendant's expert witness was Dr. Keith Buszek, a chemistry professor at Kansas State University. Although Dr. Buszek had no experience with methamphetamine laboratories at the time of his testimony, he is an expert in the type of reactions which take place during the methamphetamine manufacturing process. He examined the recipe that was seized from defendant's residence and concluded that it would be difficult to make more than 150 grams of methamphetamine with the recipe and the amount of precursor chemicals credited to defendant. This would be less than a 50% yield. Dr. Buszek rendered this opinion while acknowledging that underground literature and scientific literature on this topic reported a maximum yield of 72 to 80% for similar clandestine methamphetamine manufacturing recipes. Dr. Buszek projected his lower estimate on the basis of the diagram and the misspelled words that were part of the recipe. Dr. Buszek also discussed the difficulty of obtaining high-yield reactions even under university laboratory conditions. The government's expert was Dwain Worley, who works as a chemist for the Kansas Bureau of Investigation. Mr. Worley has a bachelor's degree in chemistry. He has extensive experience with clandestine methamphetamine labs. Mr. Worley was given defendant's recipe and based his analysis upon the iodine ratios used in the recipe and the amount of iodine he was told was contained in empty iodine bottles found in the searches of defendant's property. The result Mr. Worley calculated was 913 grams of methamphetamine, assuming a 100% theoretical yield. Dr. Worley agreed that 100% yields do not happen, but he testified that while experimenting under conditions "fairly close" to clandestine laboratories, he has been able to obtain approximately a 90% yield. He felt that 72 to 80% was a reasonable actual yield for a clandestine laboratory. Mr. Worley stated that "typically" a clandestine lab would produce a higher yield than Dr. Buszek estimated for defendant's lab, but he admitted that he had not seen defendant's lab conditions and that a wide range of lab conditions is found in investigations.
Defendant was a poor student in high school, and there is no reason to believe he was scientifically or chemically literate.
Dr. Buszek disagreed with extrapolating a methamphetamine yield from iodine, which is a reagent in the manufacturing process, as opposed to ephedrine or pseudoephedrine, which are precursor materials. This was also the position taken by DEA chemist Fredericka Laux in the case of U.S. v. Evans, Case No. 00-40082-01/02, where lithium was used as a reagent. A portion of her testimony was introduced as evidence by the defense. Ms. Laux stated that the DEA bases production capability reports upon precursors, not reagents. Defendant's exhibit #410. These witnesses indicated that methamphetamine cannot be made without a precursor material which becomes part of the methamphetamine molecule. Reagents are necessary to the chemical reaction, but can be used in different quantities without directly limiting the amount of methamphetamine which is produced. In contrast, the amount of precursor material does limit the amount of methamphetamine which can be produced.
The information reported in the Guidelines manual as commentary regarding Amendment 611 indicates that, according to DEA data, the typical actual yield for clandestine methamphetamine laboratories is 50 to 75%. Supplement to Appendix C of the Guidelines Manual at pp. 112-13 (November 1, 2001). We find no distinction in terms of the Rules of Evidence between this information and the yield percentages reported by the expert witnesses from underground or scientific literature.
To summarize this evidence, no witness has seen the laboratory in question or interviewed defendant on the subject. No witness has attempted to make methamphetamine using defendant's recipe. There is no detailed evidence regarding the conditions of production in this case. The conditions and materials involved in a methamphetamine laboratory can have a significant impact upon the percentage yield. Field conditions vary widely in the experience of investigators. Both expert witnesses have seen defendant's recipe and considered it similar to, but not the same as, those reported in the underground literature. While the recipe apparently contains ratios for the use of iodine, there is no evidence that defendant followed the ratios in the recipe. Cf., U.S. v. Coleman, 148 F.3d 897 (8th Cir.) cert. denied, 525 U.S. 899 (1998) (case cited by prosecution in support of iodine analysis where co-conspirator testified as to how iodine actually was used in proportion with other chemicals). Indeed, since the empty ephedrine packaging that was seized was consistent with only about half the ephedrine predicted by the empty iodine packaging that was found, there is at least a small indication that more iodine may have been used than was dictated by the ratios in the recipe.
Under these circumstances, the court does not believe there is better evidence supporting a 70% yield than evidence supporting a 50% yield. Of course, even a 50% yield, if applied to the 913 grams predicted by the government's iodine analysis, would support a higher drug quantity and base offense level than the court found in this case. But, the court sides with the opinion of Dr. Buszek and Fredericka Laux, and upon the evidentiary record before the court we do not believe the iodine analysis is as persuasive a guide to the capability of the laboratory in this case as the ephedrine analysis with a 50% yield.
Conditional downward departure
At the sentencing hearing, the court also stated that had a 70% yield been used and the original Guidelines range employed, there were grounds for making a downward departure from 168 months to 135 months in this case. Three arguments for making a downward departure were presented. First, defendant argued that his criminal history category overstated the seriousness of his criminal background. Defendant has three felony convictions for possession of methamphetamine and possession with intent to distribute which he sustained in March, May and June of 1998 in Oklahoma state court. The total amount of methamphetamine seized in these arrests and convictions does not appear to be substantially more than the 7.7 grams which was seized during the third arrest. Defendant received a suspended sentence for each conviction. Defendant has not been charged with a violent offense or accused of threatening violence. However, he is alleged to have violently resisted his arrest on January 4, 2000 and a weapon was found which led to a gun charge in the case at bar. Letters submitted to the court state that defendant is a nonviolent person who, in spite of a drug problem, has been a good employee. While he was on probation, defendant was arrested upon the instant charges on December 31, 1999. This added two points to his criminal history score. So, defendant received a criminal history category of III on the basis of three rather minor nonviolent drug crimes which happened over a short period of time and for which he was serving probation at the time of the offenses in this case.
The second grounds for departure argued by defendant contends that because the Sentencing Commission has adopted a sentencing philosophy which applies a 50% yield for defendants who committed similar drug crimes after May 1, 2001, he should receive the benefit of the same philosophy in his case.
Finally, defendant has argued that because one of the lead investigators in his case has been accused of investigative misconduct in several cases, including defendant's case, and because these allegations have caused many cases to be dismissed, a downward departure is merited in this case.
While the court does not believe it would choose to depart on the basis of any one of these factors, combined together the court is convinced that an atypical case is presented which would justify a downward departure from the original Guidelines range. As a general matter, a sentencing court may base a downward departure upon a combination of permissible factors. U.S.S.G. § 5K2.0, Commentary; U.S. v. Jones, 158 F.3d 492, 504 (10th Cir. 1998).
A reasonable argument can be made that defendant's criminal history category overstates the seriousness of his criminal conduct. Defendant's criminal history basically begins at the age of 35 and ends with defendant's arrest in this case less than two years later. The amounts of drugs involved in two of his prior arrests appear to be quite small, and defendant was granted probation on all three of his prior convictions. Defendant is nonviolent in the court's opinion. This is not necessarily an uncommon criminal background for cases in this court. But, it is uncommon that a defendant would have a criminal history category of III in this situation.
Defendant's case is also different from most cases because of timing. Current sentencing policy is based upon a conservative estimated yield percentage of 50%. It would be extraordinary compared to most cases currently being prosecuted to apply a higher percentage yield, particularly when this case, like many other cases, lacks any empirical results from defendant's lab. The court does not believe the evidence, viewed cautiously, justifies a higher yield. But, if it did, then the discrepancy between this case and other current cases would be a reason to consider this case outside the heartland of cases.
We acknowledge the government's suggestion that the 50% figure referred to in the commentary to Amendment 611 was tied to a more stringent penalty regime in Amendment 594 and that the "one-book rule" suggests that either both amendments or neither amendment be applied to this case. We are applying "one book" to this case and we reject the government's argument for two reasons. First, the amendments stem from different legislation (the Methamphetamine Trafficking Penalty Enhancement Act of 1998 and the Methamphetamine Anti-Proliferation Act of 2000) and became effective on different dates. Consequently, we are not convinced that a higher yield percentage would have been used by the Commission, for instance, if the more stringent penalties had not been enacted. Second, we agree with defense counsel that the court may consider the information contained in the commentary to Amendment 611 as factual support for defendant's argument without applying Amendment 611 or the current version of the Guidelines to this case as a matter of law.
Finally, this case is tainted by the involvement of a deputy sheriff who is alleged to have repeatedly acted improperly in investigations. As a result of these allegations, this so-called "rogue officer" has resigned. Many cases in which he was involved at the county level have been dismissed. In addition, he has been investigated by the Kansas Bureau of Investigation. This investigation did not lead to charges being filed against the officer. However, the investigator for the KBI testified that there was a pattern of intentional misconduct, and that he would not believe the officer. The officer's partner at the time of defendant's investigation also recognized a pattern of misconduct (e.g., coercing consents to search and making false statements to obtain warrants) and complained to his supervisor about it. Nothing resulted from this complaint, but the Sheriff's Office was placed on some notice of potential problems about the time this case was pending in federal court. The KBI investigation was not initiated until a few days before the original sentencing hearing. The investigation of the instant case involves: a legitimate traffic stop, a legitimate search incident to arrest at the traffic stop, another legitimate traffic stop four days later, and a legitimate search pursuant to a warrant for defendant's residence. Evidence against defendant was gathered during the two traffic stops and the search of his residence. This case also involves: an alleged consent search of defendant's car at the first traffic stop; the giving of statements after a Miranda warning; an alleged consent search of defendant's shed following the first traffic stop; and a later search of the shed pursuant to a warrant the day following the first traffic stop. The alleged rogue officer was involved alone, it appears, in obtaining the alleged consents to search, in giving the Miranda warning, and in making the affidavit to support the search warrant for the shed. Of course, the government would have the burden upon a motion to suppress to prove that the consents were freely given and that a Miranda warning was given. A form granting written consent to search defendant's car and the shed was signed by defendant on December 31, 1999. But, the circumstances surrounding the execution of the consent could be a matter of dispute.
The Ninth Circuit has held that a district court may depart downward for investigative misconduct "when that misconduct causes demonstrable prejudice to the defendant's position at sentencing." U.S. v. Basalo, 258 F.3d 945, 949 (9th Cir. 2001); see also, U.S. v. Coleman, 188 F.3d 354, 359 (6th Cir. 1999) (improper investigative techniques are not factors considered by the Guidelines and can be sufficient to remove a case from the "heartland" of cases).
What arguably distinguishes this case from the heartland of cases is that there exists the possibility of investigative misconduct by an officer, combined with a history of other misconduct by that officer which could constitute impeachment material but which was unknown and not disclosed to the defense prior to the plea in this case. Whether the alleged investigative misconduct actually occurred is not clearly established. This is largely the fault of the defense which could have challenged the evidence obtained from consents and statements and warrants with information that was available to the defense. Whether the decision not to pursue this kind of challenge was made and whether defendant's plea bargaining position was weakened because the defense was unaware of the officer's alleged history of misconduct is a murky question. Plea bargaining positions can be weakened by the absence of such information. See U.S. v. Sanderson, 110 F. Supp.2d 1221, 1226 (N.D.Cal. 2001) (granting a departure on this basis). It is also not clear whether the prosecution knew of the alleged impeachment information in time to disclose it to the defense. Moreover, under the recent holding of U.S. v. Ruiz, 122 S.Ct. 2450 (2002), the prosecution may not have had a duty to disclose any impeachment material to the defense prior to the plea in this case. Nevertheless, it may distinguish this case from other cases (certainly those cases involving the officer which have been dismissed) that potentially helpful information was unknown to the defense that may normally be known in other cases, whether or not the prosecution may be faulted for nondisclosure.
To summarize, because there is some evidence of misconduct inside and outside this case by a rogue officer and because, if disclosed or known by the defense, this information may have strengthened defendant's position in plea bargaining, the court recognizes a viable argument for a downward departure.
In the end, the court is not convinced that any one of the three arguments for downward departure, by itself, would support a downward departure from the original Guidelines range (168 to 210 months) in this case. But, the fact remains that no cases in this court's memory have directly involved as much evidence of misconduct or an investigative officer whose credibility has been so directly besmirched by other law enforcement officers. Few cases involve Category III criminal histories on the basis of what appears to be a relatively minor short-term nonviolent criminal background. And, of course, no recent cases to which Amendment 611 has applied have used a percentage yield of 70%. In light of all of these factors, when comparing this case to the many drug cases seen by this court, this does not appear to be a case where the bottom of the Guidelines range should be 168 months. The court believes that the seriousness of the offense, the need for just punishment, deterrence, the protection of the sentencing pattern of the Guidelines and the need to avoid unwarranted sentencing disparities would favor a sentencing range of 135 to 168 months. This would have constituted a departure of one criminal history category and one offense level from the range produced by the original sentencing calculations, if those had been applied by this court at the resentencing hearing.
Conclusion
In conclusion, for the above-stated reasons, the court granted defendant's position at sentencing in part and sentenced defendant to two concurrent terms of 135 months. A copy of this order shall be attached to any copy of the presentence report transmitted to the Bureau of Prisons.
IT IS SO ORDERED.