United States v. Kamper

• Decision Date: 09 April 2014
• Docket Number: Nos. 12–5167,12–5800.,s. 12–5167
• Citation: 748 F.3d 728
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Glenn KAMPER (12–5167) and Joe Head (12–5800), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

748 F.3d 728

UNITED STATES of America, Plaintiff–Appellee,

v.Glenn KAMPER (12–5167) and Joe Head (12–5800), Defendants–Appellants.

Nos. 12–5167, 12–5800.

United States Court of Appeals,

Sixth Circuit.

Argued: Nov. 21, 2013.

Decided and Filed: April 9, 2014.

ARGUED: Amy Baron–Evans, Office of the Federal Public Defender, Boston, Massachusetts, for Appellant in 12–5167. Allison L. Ehlert, Ehlert Appeals, El Cerrito, California, for Appellant in 12–5800. Luke A. McLaurin, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF: Amy Baron–Evans, Office of the Federal Public Defender, Boston, Massachusetts, Nikki C. Pierce, Federal Defender Services of Eastern Tennessee, Inc., Greeneville, Tennessee, for Appellant in 12–5167. Allison L. Ehlert, Ehlert Appeals, El Cerrito, California, for Appellant in 12–5800. Luke A. McLaurin, United States Attorney's Office, Knoxville, Tennessee, Jay Woods, United States Attorney's Office, Chattanooga, Tennessee, for Appellee.

Before MOORE and GRIFFIN, Circuit Judges; KORMAN, District Judge. ^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendants-appellants Glenn Kamper and Joe Head appeal their respective 144–month sentences imposed for their roles in a conspiracy to manufacture and distribute MDMA (also known as 3, 4–methylenedioxymethamphetamine or “ecstasy”) in Chattanooga, Tennessee. Head and Kamper both appeal their sentences as procedurally and substantively unreasonable. Kamper argues that the MDMA-to-marijuana equivalency ratio underlying his Guidelines sentencing range is based on faulty science, and that the district court erred when it justified its refusal to reject the Guidelines ratio with institutional concerns. We conclude that the district court misunderstood its authority to reject and replace a Guidelines equivalency ratio based on policy disagreements, but conclude that the district court's error was harmless. We reject Kamper's other arguments regarding the reasonableness of his sentence as without merit. Head argues that the district court erred in applying sentencing enhancements for his aggravating role in the criminal conspiracy and for obstruction of justice. We conclude that Head's sentence must be vacated because the district court erred in applying a sentencing enhancement for obstruction of justice. Accordingly, we AFFIRM the judgment of the district court with respect to Kamper, but REVERSE the judgment of the district court with respect to Head and REMAND for resentencing.

I. BACKGROUND

A. The Conspiracy

In early 2009, Glenn Kamper, Joe Head, and Jonathan St. Onge devised a plan to manufacture and distribute MDMA in Chattanooga, Tennessee. K.R. 243 (Trial Tr. at 116) (Page ID # 1201).¹ Each of the men filled a different role in the conspiracy: Kamper was the administrator, Head was in charge of manufacturing, and St. Onge organized the distribution. Kamper first proposed the idea of dealing drugs, he supplied the initial start-up funds and “provided cash flow,” and he ensured that the process stayed “on an even keel.” Id. at 116 (Page ID # 1201). Head had access to chemical supplies through his laboratory job at a water treatment facility, and he used his education and training in chemistry to devise a method of producing MDMA from the sassafras plant. Id. at 117 (Page ID # 1202). St. Onge drew on his experience dealing other drugs to organize a distribution network among deejays and others involved in the “rave scene.” Id. at 118–19, 139 (Page ID # 1203–04, 1224).

The three men initially manufactured MDMA at Kamper's home, but they later relocated to a house in Georgia. Id. at 124–25 (Page ID # 1209–10). During the manufacturing process, Head extracted a compound naturally produced in the sassafras plant and used several toxic chemicals to transform the natural compound into a synthetic compound. None of the other conspirators had the education or training necessary to understand or execute the manufacturing process: “[Head] was the brains behind everything, all the chemical work.” Id. at 133 (Page ID # 1218). At times, other co-conspirators, including St. Onge, Kamper's boyfriend Jared Pietzsch, and Head's roommate Jeremy Harvey, assisted Head with “menial tasks” related to the production process, such as “cutting up little squares of aluminum foil [and] holding things that were heavy.” Id. at 121–22 (Page ID # 1206–07). However, they would generally “stay away from the [manufacturing] process” even when they were in the house at the same time. Id. at 151 (Page ID # 1236).

The conspirators sold approximately two to three ounces of MDMA per month beginning in late 2009. Id. at 127 (Page ID # 1212). In November 2010, a confidential informant (“CI”) purchased MDMA from Christopher Hutchinson, a co-conspirator involved in the distribution arm of the enterprise. Several months later, the CI arranged to purchase an additional pound (453.6 grams) of marijuana from Benjamin Park, who shared a residence with Hutchinson. Kamper Presentence Report (“PSR”) ¶ 15; Head PSR ¶ 15. While observing the residence on January 19, 2011, law-enforcement officers saw St. Onge arrive with a large package, which they found to contain 447.5 grams of MDMA. Kamper PSR ¶ 16; Head PSR ¶ 16. They arrested St. Onge and used his phone to contact Kamper with an order for an additional ounce (28.35 grams) of MDMA. Pietzsch soon arrived at St. Onge's residence with the requested MDMA, and he was also arrested. Upon searching Pietzsch, law enforcement officers found a record of a FedEx package shipped to Carlos Zamora–Chang earlier in the day. When they intercepted the package, they found that it contained an ounce of MDMA. Kamper PSR ¶ 17; Head PSR ¶ 17. On January 25, 2011, Kamper, Head, and several other co-conspirators were indicted for conspiring to distribute MDMA and possessing MDMA with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. K.R. 12 (Indictment) (Page ID # 21–23).

B. Kamper's Guilty Plea and Sentencing

After an indictment was filed against him, Kamper pleaded guilty. He was incarcerated pending sentencing, and by some mistake he was housed in the same jail pod as St. Onge, who was cooperating with law enforcement. On August 24, 2011, Kamper wrote the following letter to Head:

You gotta love this though ... they moved me about a week and a half ago, into another pod here and they totally fucked up and put me into the same pod as that rat asshole Jonathan [St. Onge]!!! So now I have to look at his pathetic face every day, but at least he stays far away from me and walks the other way whenever he sees me when we are out in the big common room when we are not in our cells. I've also made sure that everyone else in this pod, about 35 guys, knows that he is a rat and a snitch and now hardly anyone talks to him any more since no one likes a rat in jail....

K.R. 172 (Kamper Ltr. at 3) (Page ID # 445). St. Onge testified that, although he had initially been comfortable in the jail pod, he found that after Kamper spread word that he was a snitch the other inmates had become “rile[d] up” and he began to fear that they would “tak[e] a physical action” against him or make him an outcast. K.R. 224 (Sentencing Hr'g Tr. at 93–94) (Page ID # 1003–04). St. Onge requested that he be transferred to a different pod. Id. at 93 (Page ID # 1003).

In his presentence report (“PSR”), Kamper was held responsible for a total of 1,218.75 grams of MDMA, which was the equivalent of 609.375 kilograms of marijuana. SeeU.S.S.G. § 2D1.1, cmt. 8(D). To Kamper's base offense level of 28, the probation officer recommended applying a two-level enhancement for obstruction of justice pursuant to § 2D1.1(b)(14)(D) and a four-level enhancement for his role as a leader or organizer of the conspiracy pursuant to § 3B1.1(a). The probation officer recommended denying an adjustment for acceptance of responsibility because Kamper's behavior toward St. Onge was inconsistent with such a reduction. Kamper's advisory sentencing range was calculated as 151 to 188 months of imprisonment.

Kamper filed several objections to the conclusions contained in his PSR. He argued that he should not have received either the obstruction of justice or leadership role enhancement and that he should have received a downward adjustment for accepting responsibility by pleading guilty. He also objected to the MDMA-to-marijuana equivalency ratio contained in the Sentencing Guidelines, asserting that the ratio was based on discredited science. In connection with this objection, Kamper filed a motion (the “Ratio Motion”) requesting that the district court select a new MDMA-to-marijuana equivalency ratio to compute a more appropriate sentence, or at least vary from the Guidelines range calculated using the flawed ratio. K.R. 162 (Ratio Motion) (Page ID # 378–402). In the Ratio Motion, Kamper argued that the MDMA Guidelines were passed in response to congressional policy directives rather than statistical or scientific evidence, and that the ratio selected was based on disproven and discredited science. The Ratio Motion relied heavily on United States v. McCarthy, No. 09 Cr. 1136, 2011 WL 1991146 (S.D.N.Y. May 19, 2011), a case in which a district court had rejected the Guidelines MDMA-to-marijuana ratio and instead sentenced the defendant under the same ratio as that used for cocaine offenses. Kamper argued that the district court in the instant case should likewise reject the Guidelines ratio and substitute a lower ratio.

At sentencing, the district court discussed Kamper's objection to the MDMA-to-marijuana equivalency ratio at length. The sentencing judge heard argument from both parties regarding the science and policy considerations underlying the ratio, and the implications for future sentencing of adopting a new ratio in Kamper's case. K.R. 224 (Sentencing Hr'g Tr. at 7–58) (Page ID # 917–68). The district judge also expressed concern that there were not...