Tag Archives: methamphetamine actual

Sentencing Commission Proposes Drug Table, Meth, Supervised Release Changes – Update for January 27, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘ICE’ MAY BE MELTING

In December, the United States Sentencing Commission announced proposed Sentencing Guidelines amendments for public comment on the sweeping if rather tedious topics of guideline simplification, criminal history, firearm offenses, circuit conflicts and retroactivity. 

drugdealer250127At the time, Sentencing Commission Chairman, Judge Carlton W. Reeves (Southern District of Mississippi) hinted that the USSC could be announcing some additional proposed amendments this month.

Last Friday, the Commission provided an upbeat end to a tough week for federal criminal justice, proposing defendant-friendly amendments to Guidelines on supervised release, the drug quantity tables, and enhanced offense levels for “ice” and pure methamphetamine.

The draft amendments, released for public comment, also propose cracking down on distribution of drugs laced with fentanyl as well as an increased enhancement for packing a machine gun during a drug crime.

The biggest surprise is a proposed change to adopt one of three options, any of which would reduce the top base offense level for drug quantity in the Guidelines. A Guidelines sentence for a drug offender is driven by the weight of the drugs attributed to him or her.  If Tom the Trafficker, with no prior convictions, was involved in a cocaine conspiracy that sold 1,000 lbs of cocaine (10 lbs. a week) over two years – even if he only sold an 8-ball a day five days a week for two years (about 4 lbs) – his Guidelines base offense level would be 38 with a sentencing range starting at 20 years in prison.

The three options the Sentencing Commission is considering would drop the levels in the drug quantity table to Level 30, 32 or 34 instead of the current 38.  At Level 30, our hypothetical Tom would be looking at an advisory sentencing range of 8 years instead of 20.

The Commission said it “has received comment over the years indicating that [Guideline] 2D1.1 overly relies on drug type and quantity as a measure of offense culpability and results in sentences greater than necessary to accomplish the purposes of sentencing.”

meth240618The second proposed amendment would essentially wipe out the drug quantity table’s 10-to-1 focus on meth purity and eliminate any enhanced penalty for crystal meth, known as “ice.” Commission data show that in the last 22 years, the offenses involving meth mixtures has remained steady while the number of offenses involving “meth (actual)” and “ice” have risen substantially. A recent Commission report found that today’s meth is “highly and uniformly pure, with an average purity of 93.2% and a median purity of 98.0%.”

In other words, if all meth is pure, applying the higher base offense level for pure meth becomes the norm rather than the exception. This is a drug-crime equivalent of the Lake Wobegon effect, humorist Garrison Keilor’s representation that in Lake Wobegon, all the children are above average.

The meth purity change could decrease Guideline base offense levels by up to 4.

A note: Judge Reeves, wearing his district court hat instead of USSC hat, wrote a thoughtful opinion two years ago in which he refused to apply the purity enhancement on the same grounds that the Commission cites now as a rationale for changing the Guidelines.

supervisedleash181107The other significant change is to supervised release, which would dramatically reduce the cases in which it is added to the end of a sentence. Among its many changes – focused on making supervised release more about rehabilitation and less about punishment – the proposed amendment would also adopt inmate-friendly standards for early termination of supervised release, making getting off supervised release after a year much easier to do.

The Sentencing Commission proposal says nothing about whether the drug quantity table reduction or meth changes – if they are adopted – would be retroactive. Retroactivity would be decided in a separate proceeding, and the USSC is in the middle of a painful re-evaluation of when and whether retroactivity should be allowed.

For now, the proposed amendments will be out for public comment until March 3, 2025, with reply comments due by March 18, 2025. The Commission will decide what it will adopt as final amendments by May 1, and those will become effective (absent Congressional veto) on November 1, 2025.

US Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 24, 2025)

– Thomas L. Root

Nothing to See Here Anymore,’ BOP Tells Court About FCI Dublin – Update for June 25, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

But first, a mea culpa…

THOSE PESKY DETAILS

embarrassedLast week, I reported on a U.S. Sentencing Commission methamphetamine study that debunked the idea that there was anything special about meth with purity over 90%, despite the fact that 80% plus pure meth comes with much higher Guideline sentencing ranges.

I reported that the study found that meth tested by the government in fiscal year (FY) 2022 averaged over 90% pure with a median purity of 98%, “measurements dramatically higher than just two years before, when meth purity ranged from 10 to 80%.”

An alert reader questioned my data. It turns out he was correct.

According to the DEA, meth purity ranged from 10% to 80% in the year 2000, NOT 2020. My embarrassment at my error tests out at 100% purity, and I thank my reader for pointing out the mistake.

USSC, Methamphetamine Trafficking Offenses In The Federal Criminal Justice System (June 13, 2024)

‘WE BURIED THE DUBLIN PROBLEM, SO LET’S STOP TALKING ABOUT IT,’ BOP TELLS COURT

The Federal Bureau of Prisons has asked the U.S. District Court in Oakland to dismiss a class action lawsuit demanding systemic changes at FCI Dublin as moot, on the grounds that no one is imprisoned there anymore.

“The injunctive claims addressing conditions of confinement at FCI Dublin—a facility where no inmates are confined—must be dismissed as moot,” the motion filed last Tuesday argues. The plaintiff’s money damages claims, consideration of which have been stayed until August, would remain on file.

The suit was filed last August by female inmates, alleging rampant sexual assault and retaliation by Dublin staff. BOP abruptly shut down the facility in April shortly after Judge Yvonne Gonzalez Rogers appointed a special master to oversee changes at the prison.

paniccrowd240625

The BOP’s motion admits that Dublin was in “dire need of immediate change.” The agency said, “Following its own deliberative process, BOP leadership determined that it needed to close FCI Dublin and transfer all female adults in custody (AICs) to other federal facilities. The transfer process was conducted subject to various court orders and in coordination with the Court’s special master. That process is now complete, and the AICs previously confined at Dublin are now at new facilities. If Dublin is eventually reopened, it will not be used to house female AICs again.”

The Court has described the closure of Dublin as “hasty and chaotic” but the BOP claims it “was carefully planned” and that the Court was privately advised a month before the April 15 mass movement.

A group of Congressional representatives is investigating allegations that the transfers were conducted inhumanely.

Motion to Dismiss, California Coalition for Women Prisoners v, BOP, ECF 326, Case No 4:23-cv-4155 (ND Cal, June 18, 2024)

KQED-TV, Biden Administration Seeks to Dismiss Lawsuit Over Bay Area Women’s Prison Abuses (June 18, 2024)

– Thomas L. Root

Raising the Bar on Methamphetamine Purity – Update for June 18, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SENTENCING COMMISSION METH STUDY ACKNOWLEDGES REALITY

reeves230706Ever since U.S. District Judge Carlton Reeves (Southern District of Mississippi)—who happens to have a side gig as chairman of the U.S. Sentencing Commission—ruled that these days everybody’s methamphetamine was so pure that the “methamphetamine actual” and “ice” purity enhancement in § 2D1.1 of the Guidelines made no sense, people have been asking me when the USSC is going to catch up with reality and throw out the higher sentencing ranges for 90% pure and higher meth.

I thought that we might have seen it in this year’s proposed amendments, but it didn’t happen. However, a Sentencing Commission study released last week suggests that the Commission may be looking for a change in next year’s amendment cycle.

It’s important, too. Over the past 20 years, meth trafficking offenses have risen by 168%, now accounting for half of all federal drug trafficking cases.

The study found that meth tested in fiscal year (FY) 2022 averaged over 90% pure with a median purity of 98%. Furthermore, the meth was uniformly tested at high purity whether it was classified for sentencing as a meth mixture (91% average purity), meth actual (93%) or ice (98%). These purity averages are dramatically higher than just two years before, back when methamphetamine purity ranged from 10 to 80%.

meth240618Under 21 U.S.C. § 841(b)(1)(A)(viii) and (B)(viii), it takes ten times as much weight of a meth mixture as it does actual meth or ice to trigger mandatory minimum penalties. So let’s say you’re a criminal newbie caught with a pound of meth of average purity. That would be 458 grams. If you are sentenced for 458 grams of “a mixture containing methamphetamine,” your advisory sentencing range would be 78-97 months. But if the government pushes for sentencing your pound as “methamphetamine actual,” you would have a mandatory minimum sentence of 120 months with a sentencing range topping out at 135 months.

As the late Johnny Cochrane is reputed to have said (at least by South Park) in his fictional but brilliant Chewbacca defense, “That does not make sense.”

chewbacca240618The Commission can change its Guidelines (and likely will in the next year or two), but altering 21 U.S.C. § 841(b) would require Congressional action.

Meth trafficking sentences averaged 91 months in FY 2022, the longest average among major federal drug trafficking offenses, more than fentanyl (65 months) and heroin (66 months). Meth trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

USSC, Methamphetamine Trafficking Offenses In The Federal Criminal Justice System (June 13, 2024)

United States v. Robinson, Case No. 3:21-cr-00014 (S.D.Miss., December 23, 2022)

– Thomas L. Root