December 22, 2016
UNITED STATES OF AMERICA, Plaintiff - Appellee,
EMANUEL GODINEZ-PEREZ, Defendant-Appellant.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. No. 2:14-CR-20066-JAR-1)
Brannon, Federal Public Defender, District of Kansas, Topeka,
Kansas, for Defendant-Appellant.
N. Capwell, Assistant United States Attorney, (Barry R.
Grissom, United States Attorney, with her on the brief),
Kansas City, Kansas, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.
BRISCOE, Circuit Judge.
Emanuel Godinez-Perez (Godinez) pleaded guilty to three
criminal counts arising out of his role in a conspiracy to
distribute and possess with intent to distribute more than
500 grams of methamphetamine. The district court sentenced
Godinez to a term of imprisonment of 108 months, to be
followed by a two-year term of supervised release. Godinez
now appeals his sentence. Exercising jurisdiction pursuant to
28 U.S.C. § 1291, we agree with Godinez that the
district court erred in calculating his base offense level
and, in turn, his advisory Guidelines sentencing range.
Specifically, the court erred in failing to make
particularized findings regarding relevant conduct
attributable to Godinez. Consequently, we remand to the
district court with directions to vacate Godinez's
sentence and resentence him.
and July of 2014, law enforcement agents from the Kansas
Bureau of Investigation (KBI) and the United States
Department of Homeland Security-Homeland Security
Investigations (HSI) used a confidential informant (CI) to
make two controlled purchases of methamphetamine from an
individual named "Manuel" in Kansas City, Kansas.
Law enforcement agents ultimately determined that
"Manuel" was Godinez and they arrested him, along
with Jose Menera-Alvarez and Gilbert Cano-Bahena, both of
whom were involved with Godinez in the distribution of the
methamphetamine. During the course of the investigation, law
enforcement agents seized ten different quantities of
methamphetamine, totaling approximately 1, 505.26 grams.
Laboratory testing revealed that these quantities of
methamphetamine ranged in purity from 96.1% to 100%. Based
upon these purity figures, the net weight of the
methamphetamine was estimated to be 1, 479.8 grams.
25, 2014, a criminal complaint was filed charging Godinez,
Menera-Alvarez, and Cano-Bahena with conspiracy to distribute
and possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A)(viii), 846, and 18 U.S.C. § 2, and
possession with the intent to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B)(viii), 846, and 18 U.S.C. § 2. The
complaint also alleged two separate counts of distribution
solely against Godinez. On August 6, 2014, a federal grand
jury returned an indictment setting forth the same four
January 22, 2015, Godinez appeared before the district court
and entered a plea of guilty, without benefit of a plea
agreement, to the charges against him. The district court
directed the probation office to prepare a presentence
investigation report (PSR).
April 27, 2015, the probation office submitted the PSR to the
district court and the parties. The PSR concluded that
Godinez's "offense involv[ed] at least 1.5 kilograms
but less than 4.5 kilograms of 'Ice'"
(high-grade methamphetamine), and thus assigned Godinez a
base offense level of 36, pursuant to U.S.S.G. § 2D1.1.
ROA, Vol. 3 at 13. The PSR in turn applied a two-level
reduction pursuant to the safety-valve provision of U.S.S.G.
§ 2D1.1(b)(17), as well as two-level and one-level
reductions pursuant to U.S.S.G. § 3E1.1(a) and (b), all
of which resulted in a total offense level of 31. That total
offense level, combined with the calculated criminal history
category of I, resulted in an advisory Guidelines sentencing
range of 108 to 135 months. Neither party filed objections to
did, however, file a sentencing memorandum asking the
district court "to sentence him to less than 60 months
in the Bureau of Prisons." Id., Vol. 1 at 36.
In support of his request, Godinez argued that he was
"clearly the LEAST culpable of the three"
defendants in the case because the other two were suppliers
and Godinez "only had direct or indirect control over
601.57 of the 1505.39 grams of methamphetamine that
comprise[d] his drug quantity calculation." Id.
at 36, 38. More specifically, Godinez argued that
"601.57 grams [we]re a result of actual sales by"
him, and that "887.25 grams [we]re a result of the
execution of a search warrant on a storage unit that did not
belong to [him], " and was not "under his
control." Id. at 37.
also argued in his sentencing memorandum that "[t]here
[we]re more general reasons to consider a variance for
[him]." Id. To begin with, he argued that
"the methamphetamine guideline lacks empirical support,
" id., and "penalize[s] methamphetamine
much, much more severely than any other drug, "
id. at 41. Second, Godinez argued that "the
unique focus on methamphetamine purity in [§] 2D1.1
further undermines the goals of [18 U.S.C. §]
3553(a)." Id. at 42. "For example, "
he argued, his "base offense level would have been 32
instead of 36 had the drug quantity been calculated as a
mixture." Id. And, he argued, that would have
"result[ed] in a sentence range of 70-87 months absent
the differential calculation for drug purity."
Id. Lastly, Godinez argued that his case was treated
differently than other criminal prosecutions in the District
of Kansas because the probation office in his case calculated
the amount at issue "as 'Ice'" even though
the "actual amount [wa]s available." Id.
29, 2015, Godinez appeared before the district court for
sentencing. The district court, again without objections from
either party, adopted the PSR's sentencing calculations.
Defense counsel asked the district court to vary downward
from the advisory Guidelines sentencing range and impose a
term of imprisonment of no greater than 60 months. The
district court denied Godinez's request and sentenced him
to 108 months' imprisonment, to be followed by a two-year
term of supervised release.
was entered in the case that same day. Godinez filed a timely
notice of appeal and challenges only his sentence.
of relevant conduct - drug quantity
first issue, Godinez complains that "the district court
made no particularized findings on the record about the
relevant conduct attributable to [him] individually, but
instead held him responsible for the entirety" of the
methamphetamine that was seized by law enforcement officials.
Aplt. Br. at 8. Because Godinez did not raise this specific
argument in the district court, our review is limited to
plain error under Federal Rule of Criminal Procedure
52(b).Molina-Martinez v. United States,
136 S.Ct. 1338, 1343 (2016). We "ha[ve] discretion to
remedy a forfeited error provided certain conditions are
met." Id. The defendant must establish (1) the
existence of "an error that has not been intentionally
relinquished or abandoned, " (2) "the error [is]
plain-that is to say, clear or obvious, " and (3)
"the error . . . ha[s] affected the defendant's
substantial rights." Id. "Once these three
conditions have been met, the court of appeals should
exercise its discretion to correct the forfeited error if the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings." Id.
(quotation marks omitted).
argues that the district court in this case was required to
"make particularized findings about relevant
conduct-here, the drug quantity and type-attributable to the
defendant, rather than just default to the overall
conspiracy." Aplt. Br. at 10-11. Godinez further argues
that "the PSR failed to offer any particularized
findings about individual relevant conduct, " and the
district court in turn "made no findings particular to
the scope of [Godinez's] agreement, either as to quantity
or type of methamphetamine." Id. at 11. And, he
argues, "[t]he record does not support that [he] agreed
to jointly undertake the distribution of more than 1.5
kilograms of [I]ce." Id.
1B1.3 of the United States Sentencing Guidelines, which
addresses relevant conduct for purposes of sentencing, states
that a defendant's base offense level "shall be
determined on the basis of . . . all acts and omissions
committed, aided, abetted, counseled, commanded, induced,
procured or willfully caused by the defendant, " as well
as, "in the case of a jointly undertaken criminal
activity . . ., all acts and omissions of others that were .
. . within the scope of the jointly undertaken criminal
activity, . . . in furtherance of that criminal activity, and
. . . reasonably foreseeable in connection with that criminal
activity." U.S.S.G. § 1B1.3(a)(1)(A) and (B).
"This includes any controlled substance that was handled
by another member of the conspiracy if it was '(A) in
furtherance of the jointly undertaken criminal activity; and
(B) reasonably foreseeable in connection with that criminal
activity.'" United States v.
Figueroa-Labrada, 720 F.3d 1258, 1265 (10th Cir. 2013)
(quoting U.S.S.G. § 1B1.3, cmt. n.2).
Note 3(B) to § 1B1.3 states that "[b]ecause a count
may be worded broadly and include the conduct of many
participants over a period of time, the scope of the
'jointly undertaken criminal activity' is not
necessarily the same as the scope of the entire conspiracy,
and hence relevant conduct is not necessarily the same for
every participant." U.S.S.G. § 1B1.3, cmt. n.3(B).
Application Note 3(B) further states that "[i]n order to
determine the defendant's accountability for the conduct
of others under subsection (a)(1)(B), the [district] court
must first determine the scope of the criminal activity the
particular defendant agreed to jointly undertake
(i.e., the scope of the specific conduct and
objectives embraced by the defendant's agreement)."
Id. Consistent with this Application Note, we have
held that "[a] sentencing court must make particularized
findings to support the attribution of a coconspirator's
actions to the defendant as relevant conduct, whether or not
the defendant asks it to do so or disputes the
attribution." Figueroa-Labrada, 720 F.3d at
1264. In other words, even if the defendant does not lodge
any objections to the PSR, the district court must still make
these particularized findings. Id.
case, the district court adopted the factual findings
contained in the PSR and otherwise made no independent
factual findings of its own at the time of sentencing.
Unfortunately, however, the factual findings contained in the
PSR and adopted by the district court did not address the
scope of the criminal activity that Godinez agreed to jointly
undertake. Nor did the PSR's factual findings otherwise
include information specifically linking Godinez to all of
the quantities of methamphetamine that were seized during the
investigation. Consequently, we conclude, and government
counsel essentially agreed at oral argument, that the
district court erred in failing to make such findings, and
that its error was plain in light of existing Tenth Circuit
question then becomes whether the district court's error
affected Godinez's substantial rights. To address this
question, we begin by reviewing the allegations set forth in
the charges that are encompassed by Godinez's guilty
plea. Count 1 of the indictment in this case alleged that
"[b]eginning on or about June 16, 2014, and continuing
until July 16, 2014, " Godinez and his two codefendants
"knowingly and intentionally combined, conspired, and
agreed . . . to distribute and possess with intent to
distribute more than 500 grams of a mixture and substance
containing a detectable amount of methamphetamine." ROA,
Vol. 1 at 24. Count 2 of the indictment alleged that
"[o]n or about June 17, 2014, " Godinez
"knowingly and intentionally distributed 50 grams or
more of a mixture and substance containing a detectable
amount of methamphetamine." Id. at 25. Count 3
of the indictment alleged that "[o]n or about July 9,
2014, " Godinez "knowingly and intentionally
distributed 50 grams or more of a mixture and substance
containing a detectable amount of methamphetamine."
Id. Lastly, Count 4 alleged that "[o]n or about
July 16, 2014, " Godinez and his two codefendants,
"aiding and abetting each other, knowingly and
intentionally possessed with intent to distribute 50 grams or
more of a mixture and substance containing a detectable
amount of methamphetamine." Id.
petition to enter a plea of guilty, Godinez admitted all of
these allegations. By doing so, Godinez admitted to
distributing or possessing with intent to distribute 650
grams or more of methamphetamine. That amount greatly exceeds
the specific amounts that he personally distributed to the CI
on June 17 and July 9, 2014 (those two transactions totaled
172.2 grams). Thus, Godinez effectively admitted that
additional amounts of methamphetamine in his possession or
the possession of his codefendants, totaling approximately
478 grams or more, were attributable to him. But it does not
account for all of the methamphetamine that was attributed to
him by the PSR and, in turn, the district court.
plea hearing, the district court asked government counsel to
recite the factual basis for the plea. In response,
government counsel discussed the specific seizures of
methamphetamine that occurred during the course of the
investigation of Godinez and his codefendants. These
seizures, which were subsequently listed in the PSR's
factual findings, included the following:
Weight of Meth Mixture
Weight of Actual Meth
6/17/14 Controlled Buy
Bag 1 - 27.79 grams
Bag 2 - 28.12 grams
7/9/14 Controlled Buy
Bag 1 - 54.85 grams
Bag 2 - 54.67 grams
7/9/14 Storage Unit Search
Crystals - 9.32 grams
Bag 1 - 321.57 grams
Bag 2 - 375.47 grams
Bag 3 - 180.9 grams
7/16/14 Search of Vehicle
7/16/14 Search of Apartment
1, 505.26 grams
1, 479.8 grams
Id., Vol. 3 at 12.
portion of this methamphetamine was unquestionably
attributable to Godinez. To begin with, the methamphetamine
that was seized following the two controlled buys was
attributable to Godinez because it is undisputed that he was
the one who directly sold the methamphetamine to the CI.
Similarly, the 436 grams of methamphetamine that were seized
from a vehicle on July 16, 2014, were attributable to Godinez
because they were the result of a one-pound methamphetamine
transaction that he had verbally negotiated with the CI that
day but had not yet consummated, and because the vehicle from
which the methamphetamine was seized was owned by Godinez. To
be sure, codefendant Cano-Bahena was actually driving the
vehicle at the time the methamphetamine was seized. But the
record indicates that Cano-Bahena was acting as Godinez's
supplier for that transaction. Lastly, the 16.57 grams of
methamphetamine that were seized from Cano-Bahena's
apartment later that same day also are reasonably
attributable to the conspiracy outlined in the indictment.
More specifically, the district court could have reasonably
found that Cano-Bahena, in connection with the conspiracy,
directly possessed this methamphetamine with the intent to
distribute it. The district court also could have reasonably
found that Godinez, in turn, constructively possessed the
same methamphetamine for the same purpose. Together, these
amounts total 618 grams of methamphetamine mixture or 596.7
grams of actual methamphetamine.
more difficult question concerns the 887.26 grams of
methamphetamine mixture that were seized from the storage
unit on July 9, 2014. The events that led to the search of
the storage unit and the seizure of the methamphetamine are
described as follows in the PSR:
13. On July 9, 2014, agents utilized the CI to make a
controlled purchase of four ounces of methamphetamine for $3,
600 from Godinez-Perez in Kansas City, Kansas. The CI
contacted Godinez-Perez by calling cellular phone number
(816) 719-XXXX. During the call, Godinez-Perez told the CI
that he was still at work and would not be able to meet with
[the CI] until around 6:30 p.m.
14. Agents were conducting surveillance at XXX Central
Avenue, Kansas City, Kansas, when they observed three
Hispanic males leaving the apartments and driving away in a
Chevrolet Trailblazer bearing Kansas license plate 201 XXX
[and registered to Godinez]. Agents with HSI and KBI followed
the Trailblazer to a gas station in Gardner, Kansas. The
Hispanic males exited the Trailblazer and were observed
making phone calls on their cellular phones. A few minutes
later the Hispanic males were observed driving away from the
gas station and were followed to the Price Chopper in
Gardner, Kansas and seen parking in the parking lot. A short
time later, a black Jeep Patriot bearing Kansas license plate
826 XXX was observed slowly driving past the Trailblazer. The
Trailblazer was seen backing out of the parking stall and
following the Jeep Patriot to an apartment complex on East
Lincoln Street in Gardner, Kansas. Four Hispanic males were
observed standing near the vehicles[, ] which were parked in
front of one of the apartments.
15. Agents checked the registration of the Jeep Patriot
Kansas[, ] license plate 826 XXX[, ] and found it was for a
2014 Jeep Patriot registered to Sandra Patricia XXXXXXX of
16. A few minutes later, agents observed the Chevrolet
Trailblazer and Jeep Patriot leaving the apartment complex
and driving to the Central Self Storage facility located at
1702 Kansas City Road in Olathe, Kansas. Agents observed the
Hispanic males entering Unit 17[D]. After being at the
storage unit for several minutes, both vehicles were observed
leaving the facility.
17. Agents followed the Chevrolet Trailblazer back to Central
Avenue in Kansas City, Kansas[;] the Jeep Patriot was
observed heading back towards Gardner, Kansas[, ] and
surveillance was discontinued.
18. The CI received a phone call from Godinez-Perez
indicating that he was ready to meet at the same location as
before. The CI met with Godinez-Perez in a seafood restaurant
parking lot located near 12th and Central Avenue, Kansas
City, Kansas. The CI purchased four ounces of methamphetamine
from Godinez-Perez for $3, 600. During the meeting
Godinez-Perez quoted the CI prices for pound and kilogram
quantities of methamphetamine. A field test . . . showed a
presumptive positive result for the presence of
methamphetamine, weighing 56.9 and 57 grams per bag.
19. Agents contacted the Olathe Police Department, which
agreed to use a K-9 drug detection unit to conduct an open
air sniff on the Central Self Storage Units, 1702 Kansas City
Road, Olathe, Kansas. The certified K-9 alerted only on
storage unit 17D after sniffing several other units in the
20. A search warrant was obtained for Central Self Storage
Unit 17D from Johnson County, Kansas District Court. During
the search of storage unit 17D, agents seized plastic bags
containing 762.03 and 217.72 grams of methamphetamine. They
also seized 517.09 grams of marijuana, digital scales and
Id., Vol. 3 at 9-10. The PSR contains no other
mention of the storage unit. Thus, although the information
contained in the PSR would have allowed the district court to
reasonably infer that the 109.52 grams of methamphetamine
distributed by Godinez to the CI on July 9, 2014, originated
from the storage unit, it was insufficient to allow the
district court to determine who directly or constructively
possessed the 887.26 grams of methamphetamine that were
seized later that day by law enforcement officers during the
search of the storage unit.
attempt to connect Godinez with the 887.26 grams of
methamphetamine seized from the storage unit, the government
notes that it was Godinez and Cano-Bahena who traveled from
Kansas City, Kansas, to the storage unit on July 9, 2014, and
obtained the 113.9 grams of methamphetamine that Godinez
distributed to the CI later that day. Although the government
is correct on this point,  the government fails to acknowledge a key
fact that is set forth in the PSR. Godinez and Cano-Bahena
did not drive directly from the apartment to the storage
unit, but instead made three intervening stops: at a gas
station where they made a series of telephone calls, then at
a grocery store where they were met by a Jeep Patriot, and
finally at an apartment complex where they met with an
unidentified Hispanic male who apparently had been driving
the Jeep Patriot. Only after making those three stops did
Godinez and Cano-Bahena drive to the storage unit,
accompanied again by the unidentified Hispanic male driving
the Jeep Patriot. All of which suggests that the storage unit
may not have been owned, rented, or otherwise controlled by
Godinez or a coconspirator, whether or not
other words, the limited evidence contained in the record on
appeal is not so one-sided that the district court would have
had no choice but to attribute to Godinez, as part of the
conspiracy to which he pled guilty, the 887.26 grams of
methamphetamine that were stored in and seized from the
the record, which lacks particularized findings by the
district court, does not reasonably foreclose the possibility
that the 887.26 grams of methamphetamine that were stored in
and seized from the storage unit were not "within the
scope of the criminal activity that [Godinez] jointly
undertook, " and thus were not attributable to him.
Figueroa-Labrada, 720 F.3d at 1265.
turn conclude that Godinez's substantial rights were
impacted by the district court's error. The PSR assigned
Godinez a base offense level of 36, noting that U.S.S.G.
§ 2D1.1 "provides that an offense involving at
least 1.5 kilograms but less than 4.5 kilograms of
'Ice' has a base offense level of 36."
Id., Vol. 3 at 13. Had the PSR omitted from its
relevant conduct determination the methamphetamine that was
seized from the storage unit, Godinez's base offense
level would have been reduced to 34 (the same base offense
level that would have applied had the PSR relied solely on
Godinez's admissions when he pleaded guilty). That in
turn would have resulted in a total offense level of 29, and
an advisory Guidelines sentencing range of 87 to 108 months,
far different than the 108-to-135-month advisory Guidelines
range calculated by the district court. Thus, in sum, it is
apparent that the district court's error resulted in an
"erroneous, and higher, Guidelines range [that] set the
wrong framework for the sentencing proceedings."
Molina-Martinez, 136 S.Ct. at 1345. Consistent with
the Supreme Court's holding in Molina-Martinez,
we conclude that this is sufficient to establish "a
reasonable probability of a different outcome absent the
error." Id.; see id. at 1346 ("In
most cases a defendant who has shown that the district court
mistakenly deemed applicable an incorrect, higher Guidelines
range has demonstrated a reasonable probability of a
different outcome."). In other words, nothing in the
record in this case indicates that the district court
"based the sentence [it] selected on factors independent
of the Guidelines, " and "the record is [also]
silent as to what the district court might have done had it
considered the correct Guidelines range." Id.
left only with the question of whether the district
court's error seriously affects the fairness, integrity
or public reputation of judicial proceedings. We have adopted
a presumption that this question must be answered in the
affirmative whenever a defendant has established that an
unobjected-to sentencing error affects his substantial
rights. See United States v. Sabillon-Umana, 772
F.3d 1328, 1333 (10th Cir. 2014) ("[A]n obvious
misapplication of the sentencing guidelines will usually
satisfy the third and fourth elements of the plain error
test."). Because Godinez has established that the
district court's error in this case affected his
substantial rights, the presumption thus applies. Although we
have also held that this presumption can be overcome in
certain instances, we conclude that "[t]his case . . .
falls within the heartland of the presumption, not any
exception." Id. at 1334. The sentence imposed
by the district court-108 months-was at the very bottom of
the incorrectly-calculated advisory Guidelines range, and
nothing in the record indicates that the district court
selected this sentence independently from the advisory
Guidelines range. Further, as we have explained, the bottom
of the correctly-calculated advisory Guidelines range would
have been 21 months lower than the sentence that was imposed
by the district court. Thus, a very real possibility exists
that, absent the district court's error, it would have
imposed a substantially lower sentence.
these reasons, we conclude that the case must be remanded to
the district court with directions to vacate Godinez's
sentence and resentence him. Before doing so, however, we
proceed in the interests of judicial economy to review the
remaining challenges posed by Godinez on appeal.
of relevant conduct - drug type
of his first issue, Godinez argues that the district court
also erred in calculating his advisory Guidelines range on
the basis of Ice, rather than on the basis of a
methamphetamine mixture. In support, Godinez asserts that
"he admitted and was convicted of trafficking in a
mixture or substance containing a detectable amount of
methamphetamine." Aplt. Br. at 14. Nevertheless, he
asserts, the district court performed its sentencing
calculations on the basis of Ice.
2D1.1 of the Sentencing Guidelines defines the term
"Ice" as "a mixture or substance containing d
methamphetamine hydrochloride of at least 80% purity."
U.S.S.G. § 2D1.1, Notes to Drug Quantity Table, n. (C).
It also provides that "[i]f a mixture of substance
contains more than one controlled substance, the weight of
the entire mixture of substance is assigned to the controlled
substance that results in the greater offense level."
Id., Notes to Drug Quantity Table, n. (A).
in this case, and in turn the district court, properly
recognized and applied these principles. In outlining
Godinez's offense conduct, the PSR included a table that
listed the quantity (both "Net Weight of Methamphetamine
Mixture" and "Net Weight/Actual
Methamphetamine") and purity of each seizure of
methamphetamine that occurred during the course of the
investigation. Together, the total net weight of the
methamphetamine mixture was 1, 505.26 grams and the net
weight/actual methamphetamine, which took into account the
purity of the various quantities seized, was 1, 479.8 grams.
ROA, Vol. 3 at 12. The PSR in turn treated this total amount
as Ice, explaining:
Since the methamphetamine mixture is over 80% pure, it is
considered "Ice" for the purposes of the guideline.
USSG §2D1.1 Note to Drug Quantity Table (C). Note to
Drug Quantity Table (A) indicates that the weight of a
controlled substance set forth in the table refers to the
entire weight of any mixture or substance containing a
detectable amount of the controlled substance. If a mixture
or substance contains more than one controlled substance, the
weight of the entire mixture or substance is assigned to the
controlled substance that results in the greater offense
level. Therefore, the defendant is accountable for 1.505
kilograms of "Ice."
Id. Godinez did not object to this or any other
portion of the PSR. Consequently, the district court adopted
these findings and determination as its own. Godinez fails to
establish that this was error, let alone plain error, on the
part of the district court.
of downward variance - empirical basis for drug-related
also argues that the district court "relied on a
demonstrably wrong premise to deny [his] request for a
below-guideline variance." Aplt. Br. at 9. We review for
an abuse of discretion a district court's decision not to
grant a downward variance. United States v.
Franklin-El, 554 F.3d 903, 914 (10th Cir. 2009);
United States v. Smart, 518 F.3d 800, 805 (10th Cir.
2008) ("[W]hether any . . . disparity justifies a
sentencing variance in a given case raises a . . . question .
. . of substantive reasonableness, " which we review for
an abuse of discretion).
sentencing memorandum that he filed with the district court,
Godinez argued that the Sentencing Commission did not use an
"empirical approach in developing the Guidelines for
drug-trafficking offenses, " and instead "employed
the 1986 Act's weight-driven scheme." ROA, Vol. 1 at
41 (quoting Kimbrough v. United States, 552 U.S. 85,
96 (2007)). Godinez in turn argued that he was entitled to a
downward variance because "[t]he result of th[e]
[Sentencing Commission's] approach, unmoored from
empirical evidence or careful study, [wa]s to penalize
methamphetamine much, much more severely than any other
drug." Id. At the sentencing hearing, the
district court stated on the record: "I think the
[G]uidelines are the product of empirical research and
ongoing empirical study and, while not perfect, the focus on
quantity and purity of drugs does speak to a number of
factors that are relevant when one considers one's
relative culpability, vis-à-vis the culpability of
defendants across the nation." Id., Vol. 2 at
50. Godinez now argues on appeal that the district
court's statement was contrary to Kimbrough and
constituted reversible error.
government argues in response that the district court's
statement was not erroneous because this court has expressly
recognized that "the Sentencing Commission based the
drug quantities and conversion rates provided in § 2D1.1
on Congressional directives and appropriate reliance on
experts and practitioners in the field." Aplee. Br.
at 34 (emphasis added) (quoting United States v.
Kort, 440 F.App'x 678, 683 (10th Cir. 2011)). But
"reliance on experts and practitioners in the
field" is not necessarily empirical evidence. Instead,
empirical evidence is that which is "[b]ased on,
concerned with, or verifiable by observation or experience
rather than theory or pure logic." Empirical Evidence,
Oxford Dictionaries Online (2016),
definition/american_english/empirical. Thus, in the
sentencing context, empirical evidence would be that
"derived from the review of . . . individual sentencing
decisions." Gall v. United States, 552 U.S. 38,
46 (2007). Perhaps the "experts and practitioners"
that the Sentencing Commission sought guidance from
themselves relied on their own review of individual
sentencing decisions; but that much is not clear from our
decision in Kort. Thus, contrary to the
government's assertions, our decision in Kort
does not support the district court's statements in this
fact of the matter is that, in large part, "the
Guidelines are . . . the product of careful study based on
extensive empirical evidence derived from the review of
thousands of individual sentencing decisions."
Id.; see U.S.S.G. ch. 1, pt. A1, § 3
(discussing how the Sentencing Commission took an "an
empirical approach that used as a starting point data
estimating pre-guidelines sentencing practice"). But
"not all of the Guidelines are tied to this empirical
evidence." Gall, 552 U.S. at 46 n.2. "For
example, " the Court noted, "the Sentencing
Commission departed from the empirical approach when setting
the Guidelines range for drug offenses, and chose instead to
key the Guidelines to the statutory mandatory minimum
sentences that Congress established for such crimes."
Id. (citing U.S.S.G. § 1A1.1 (Nov. 2006)).
to the district court's challenged statement, it is
unclear whether its reference to "the [G]uidelines
[being] the product of empirical research and ongoing
empirical study" was intended to refer to all of the
Guidelines, including § 2D1.1 and its drug quantity
table, or whether, instead, it was intended as a general
reference to most of the Guidelines. Thus, it is simply
unclear whether the district court's statement was
erroneous or not.
for purposes of argument, that the district court's
statement was intended to refer to all of the Guidelines and
was thus erroneous, the question becomes whether that
erroneous statement had any impact on the district
court's decision to deny Godinez's request for a
downward variance. The district court expressly noted at the
time it made the challenged statement that it was
"rejecting" Godinez's request for a downward
variance to the extent it was based on Godinez's
"arguments that pertain[ed] to the [S]entencing
[G]uidelines themselves and the [G]uidelines['] focus on
the purity of the drug." ROA, Vol. 2 at 50. The district
[W]hile not perfect, the [Guidelines'] focus on quantity
and purity of drugs does speak to a number of factors that
are relevant when one considers one's relative
culpability, vis-á-vis the culpability of defendants
across the nation. For example, the pure-the more pure the
drug, the closer to the source. The quantity of the drug, you
know, is a direct reflection of the size of the organization
or at least the complexity or the opportunity that
organization has to distribute large quantities of drugs.
The [G]uidelines view some organization or person that is
able to deal in large quantity- quantities of drugs, of
course, having more significant and adverse effect on the
community than one that deals in small amounts and only has
access to small amounts. And as the government argued, the
facts in this case illustrate that Mr. Godinez, as well as
his co-defendants, were able to-to deal in sizable quantities
of drugs, at least in the pound quantities, if not the
kilogram quantities, and were willing to start, you know,
two, four ounces of methamphetamine at a time. And the
methamphetamine was almost pure, 98 percent. All of which, of
course, suggests that they are players in an organization
that is a significant organization and has access to big
quantities of drugs and pure quantities of drugs relatively
close to the ultimate source of the methamphetamine.
Id. at 50-51. Nothing about this statement is
erroneous, and Godinez does not suggest otherwise. Nor does
Godinez argue that the district court abused its discretion
in concluding that the amount and purity of the
methamphetamine involved in this case was relevant for
purposes of determining Godinez's relative role in the
conspiracy at issue.
case is REMANDED to the district court with directions to
VACATE Godinez's sentence and resentence him.
 As we
have noted, Godinez hinted at the issue in his sentencing
memorandum by arguing that the 887.25 grams of
methamphetamine that were seized as "a result of the
execution of a search warrant on a storage unit did not
belong to [him], nor [were those narcotics] under his
control." ROA, Vol. 1 at 37. Ultimately, however,
Godinez failed to object to the drug quantity calculations
set forth in the PSR and adopted by the district
its appellate response brief, the government notes that the
PSR contains the statement that "the defendant is
accountable for 1.505 kilograms of 'Ice.'"
Aplee. Br. at 6 (quoting ROA, Vol. 3 at 12 (PSR at ¶
31)). But this was not an independent, particularized
finding. At no point does the PSR differentiate between the
drugs attributable to the conspiracy as a whole and those
attributable to Godinez individually.
noted, the PSR states only that "three Hispanic
males" traveled in Godinez's vehicle from Kansas
City, Kansas, to the storage unit, and does not otherwise
identify those individuals. Id. In his sentencing
memorandum, however, Godinez essentially conceded that he and
Cano-Bahena were two of those individuals.
in its brief and at oral argument, the government failed to
identify the owner of the storage unit.