CA1: First writes dictum treatise on how to separate meth from chaff under § 2D1.11.

US v. Goodhue, No. 05-2825.  This is a fairly technical sentencing cases, but it is worth reading, because it will make you a better person.  It is pretty sad, because it begins with a woman lying unconscious in a room with all sorts of drug needles and meth-stuff.  He plead guilty under 21 U.S.C. § 841(c)(1).  Update: Look below for a step-by-step approach to separating mixed contraband from non-contraband at sentencing.

First of all, the government concedes that district court miscalculated Goodhue’s Criminal History Category under USSG § 2D1.11.  The First gives the District Court to recalculate the whole sentence, including making any adjustments for “reasonableness.”

However, Goodhue also argues that the “base offense” level was incorrectly calculated, because the District Court “used the aggregate weight of the entire mixture containing undetermined amounts of ephedrine and pseudoephedrine to calculate the sentence... The district court calculated the applicable advisory guideline range under section 2D1.11 by starting from a drug weight of 53.08 grams -- the weight of the entire mixture -- instead of the isolated weights of the ephedrine and pseudoephedrine components within the mixtures.”  Strangely, trial counsel later conceded that the base offense level wouldn’t change. So, the issue becomes whether the aggregation and mixture issues were forfeited (which is different than waived).

The First disposes of this argument because 1) he seems to be arguing for an evidentiary hearing on appeal, and if he had an evidentiary hearing, the review would be deferential; 2) there was no reason to separate out various different illegal substances, when the District Court already excluded the non-controlled substances, and therefore, “it cannot be held that the district court committed plain error by not interpreting section 2D1.11 as requiring the use of the weight of the red phosphorous as a default.”

Strangely, the First decides to give some guidance on future applications of 2D1.11.  So, I broke it down for you:

The dictum explains how a sentencing court should weigh “non-tablet mixture containing methamphetamine precursors.”  The basic principles are thus:

1. Relevant drug weight for sentencing purposes is the weight of the precursor chemicals themselves;
2. Government has burden to prove the weight of the precursor chemicals;
3. Government has burden to show that the isolation and weighing of the precursors is not feasible  – and “The court would also be warranted in considering whether the government has engaged in affirmative misconduct in failing to conduct the necessary test to isolate and measure.”;
4. If isolation is feasible, the government bears the burden of proving the actual weight of the pure precursor components, and the weight of the pure precursor components will then be applied in aggregate directly to the drug quantity charts in section 2D1.11
5. Burden is on the government to demonstrate that no part of a mixture is a substance that must be separated before the substance may be used., but see next, if they can’t be separated.
6. If isolation of chemicals isn’t feasible, see Application Note 1 in section 2D1.1 (“An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other, non-countable material in an unusually sophisticated manner in order to avoid detection.” and some stuff about wet pot)