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United States v. Pereda

United States District Court, D. Colorado

February 6, 2019

ARLENE PEREDA, a/k/a “Marisol” Defendant.



         Defendant Arlene Pereda was charged by Indictment dated May 15, 2018, with 4 counts relating to Possession with Intent to Distribute Methamphetamine, Felon in Possession, and Possessing a Firearm in Furtherance of a Drug Trafficking Crime. On September 18, 2018, pursuant to a plea agreement, Ms. Pereda entered a plea of guilty to, and was convicted of, Count 2 charging a violation of 18 U.S.C. 841(a)(1) and (b)(1)(A)(viii) - Possession With Intent to Distribute 500 Grams or More of a Mixture Containing Methamphetamine. On January 16, 2019, the Court sentenced Ms. Pereda to 188 months imprisonment, which constitutes a downward variance from the recommended imprisonment range under the United States Sentencing Guidelines. There are several reasons for the variance, including the Court's policy disagreement with the Guidelines' treatment of offenses involving actual/pure methamphetamine. This Memorandum Opinion further explains the Court's policy disagreement.


         Ms. Pereda was originally set to be sentenced on December 18, 2018. As initially calculated based on “Ice” or methamphetamine actual, the total offense level in this case was 37 and Ms. Pereda's criminal history category was IV which results in a Guideline range of 292-365 months imprisonment. (Doc. # 55-1 at 2.) However, the Court continued Ms. Pereda's sentencing so the parties could provide additional briefing as to whether application of the United States Sentencing Guidelines (“USSGs” or “Guidelines”) to determine the offense level for “Ice” methamphetamine results in a sentencing range that is greater than necessary to achieve the objectives of sentencing, and grossly over-punishes methamphetamine dealers, as compared to dealers of other types of illegal drugs, thus justifying a downward variance from the guidelines. The parties both submitted additional briefing on January 9, 2019. (Doc. ## 64, 65.) The Court also ordered the Probation Office to provide an addendum to the Presentence Investigation Report calculating the advisory guideline range under the Guidelines relating to a mixture containing a detectable amount of methamphetamine, rather than actual/pure methamphetamine. The Probation Office determined that, if calculated as a mixture, Ms. Pereda's advisory Guideline range would be 188 to 235 months, based on a total offense level of 33 and a Criminal History Category of IV.[1] (Doc. # 61 at 2.)

         It is clear that Ms. Pereda would spend significantly less time in prison if her advisory Guideline sentence were based on a mixture containing a detectable amount of methamphetamine rather than pure methamphetamine. For the reasons set forth below, the Court found that the advisory Guideline range for “Ice” or methamphetamine actual results in a sentencing range that is greater than necessary to achieve the objectives of sentencing. Thus, the Court imposed a sentence that constituted a downward variance from the Guidelines to satisfy the sentencing objectives set forth in 18 U.S.C. § 3553(a).


         The current Guidelines establish base offense levels for methamphetamine offenses that depend on the drug's purity. For example, a defendant whose offense involves 150 grams of a methamphetamine mixture is treated the same as another defendant whose offense involves 15 grams-ten times less-of actual/pure methamphetamine. United States v. Requena, No. 4:18-cr-00175-BLW, 2019 WL 177932, at *2 (D. Idaho January 11, 2019); United States v. Ferguson, No. 17-204 (JRT/BRT), 2018 WL 3682509, at *1 (D. Minn. Aug. 2, 2018) (citing U.S.S.G. § 2D1.1(c)(2)).

         However, that was not always the case. Unlike the current Guidelines, the 1987 Guidelines' Drug Quantity Table did not distinguish between actual/pure methamphetamine and methamphetamine mixtures but indicated that “purity of the controlled substance . . . may be relevant in the sentencing process because it is probative of the defendant's role or position in the chain of distribution.” U.S.S.G. § 2D1.1 (1987) cmt. 9.

         In 1988, Congress established mandatory-minimum sentences for methamphetamine offenses. See Anti-Drug Abuse Act of 1988 (codified at 21 U.S.C. § 841(b)(1)). The mandatory minimums had a 10-to-1 ratio based on purity and an “offense involving 100g of a methamphetamine mixture or 10g of actual/pure methamphetamine had a 5-year mandatory minimum; and an offense involving 1kg of a methamphetamine mixture or 100g of actual/pure methamphetamine had a 10-year mandatory minimum.” Ferguson, 2018 WL 3682509, at *1.

         Subsequently, in 1989, the United States Sentencing Commission revised the Drug Quantity Table in § 2D1.1 by incorporating the statutory penalties and by distinguishing actual/pure methamphetamine from methamphetamine mixtures at the same 10-to-1 ratio. Id.

         Similarly, in 1998, Congress amended the statutory penalties for methamphetamine offenses by halving the amounts that triggered the respective mandatory-minimum sentences. Id. (citing Methamphetamine Trafficking Penalty Enhancement Act of 1998, Pub. L. No. 105-277). As in 1989, the Commission followed Congress's lead again and accordingly increased the base offense levels for methamphetamine offenses. Id. Therefore, the Commission twice amended the Guidelines for methamphetamine so that “the base offense levels (for a defendant with a criminal history category of I) would exactly align with the mandatory-minimum sentences-and the Commission did so each time right after Congress created or changed the minimum sentences.” Id.

         III. ANALYSIS

         District courts may impose sentences that vary from the Guidelines based on a policy disagreement with the Guidelines. Spears v. United States, 555 U.S. 261, 267 (2009) (per curiam); Kimbrough v. United States, 552 U.S. 85, 101-02 (2007); Rita v. United States, 551 U.S. 338, 351 (2007). Although each criminal sentence is an individualized determination, see 18 U.S.C. § 3553(a), a district court's policy disagreement with the Guidelines may justify categorical variances, not just variances based on individualized determinations. Spears, 555 U.S. at 267. “Several [courts of appeals] have expressly held that Spears and Kimbrough mean that district courts have broad authority to premise a variance or disagreement with the policy of any guideline.” United States v. Trejo, 624 Fed.Appx. 709, 713 (11th Cir. 2015) (collecting cases); see United States v. Zauner, 688 F.3d 426, 431 (8th Cir. 2012) (Bright, J., concurring); Ferguson, 2018 WL 3682509, at *2.

         “[T]he Commission fills an important institutional role: It has the capacity courts lack to ‘base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.'” Kimbrough, 552 U.S. at 108-09 (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)). Normally, the Commission's recommendation of a sentencing range reflects a rough approximation of sentences that might achieve § 3553(a)'s objectives. Id. at 109 (quoting Rita, 551 U.S. at 350). “In light of these discrete institutional strengths, a district court's decision to vary from the advisory Guidelines may attract greatest respect when the ...

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