U.S. v. Beltran, s. 96-3085

• Decision Date: 11 September 1997
• Docket Number: 96-3087,96-3086,Nos. 96-3085,s. 96-3085
• Citation: 122 F.3d 1156
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sergio Meza BELTRAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Romulo OBESO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Maria CARDENAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1156

122 F.3d 1156

UNITED STATES of America, Plaintiff-Appellee, v. Sergio Meza BELTRAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Romulo OBESO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Maria CARDENAS, Defendant-Appellant.

Nos. 96-3085, 96-3086, 96-3087.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1997.

Decided Sept. 11, 1997.

Michael Burdette, Des Moines, IA, (F. Montgomery Brown, on the brief), for appellant Sergio Meza Beltran.

Nicholas Drees, Des Moines, IA, (Paul A. Zoss, on the brief), for appellant Romulo Obeso.

Mark E. Weinhardt, Des Moines, IA, for appellant Maria Cardenas.

Robert Dopf, Assistant U.S. Attorney, Des Moines, IA, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY, ¹ District Judge.

HANSEN, Circuit Judge.

Sergio Meza Beltran, Romulo Obeso, and Maria Cardenas appeal their sentences on federal drug charges, arguing that the district court ² erred by concluding that it lacked authority to depart under 18 U.S.C. § 3553(b) (1994) on the basis of a low purity level of a methamphetamine mixture. Defendant Beltran additionally asserts that the district court erred by denying his request for a sentencing reduction based upon his alleged mitigating role in the offense. We affirm.

On December 23, 1995, a confidential informant informed law enforcement officers that he had observed the defendants in a hotel room with approximately three pounds of methamphetamine. At the request of case agents, the confidential informant placed a telephone call to the hotel room and made arrangements to purchase one pound of methamphetamine for the price of $15,000. Later that evening, officers searched the hotel room, seized approximately 884.73 grams of methamphetamine, and arrested each of the defendants.

The defendants were charged with one count of conspiring to distribute methamphetamine, one count of conspiring to possess with intent to distribute methamphetamine, and various charges of illegally entering the United States. Beltran and Obeso each pleaded guilty to one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 846, and one count of illegal re-entry into the United States by an alien previously convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Cardenas pleaded guilty to one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 846, and one count of possession of a counterfeit alien registration card, in violation of 18 U.S.C. § 1546(a).

At sentencing, each defendant was held accountable for the entire quantity of the methamphetamine seized, which a laboratory report indicated to be a mixture containing less than one percent pure methamphetamine. The district court denied the defendants' 18 U.S.C. § 3553(b) motion for a downward departure based upon the low purity of the methamphetamine and also denied Beltran's request for a sentence reduction based upon his alleged mitigating role in the offense. The district court sentenced Beltran as a career offender to 188 months of imprisonment and sentenced Obeso to 97 months of imprisonment. After concluding that Cardenas was not subject to the statutory mandatory minimum sentence because she met the criteria of 18 U.S.C. § 3553(f) (the safety-valve provision), the district court sentenced her to 37 months of imprisonment, a sentence to which she stipulated.

The defendants appeal their sentences, challenging the district court's refusal to grant a downward departure under 18 U.S.C. § 3553(b) based upon the low purity level of the methamphetamine mixture involved in this crime. The defendants argue that the low purity (less than one percent actual methamphetamine) was a circumstance not contemplated by the Sentencing Commission in formulating the Drug Quantity Table and that this circumstance takes this particular case out of the heartland of cases provided for in the drug quantity guideline.

The district court denied the departure motion, concluding that it lacked authority to depart on this basis. "We have jurisdiction to review a district court's decision not to depart [from the Sentencing Guidelines] only where the decision is based on the district court's legally erroneous determination that it lacked authority to consider a particular mitigating factor." United States v. Field, 110 F.3d 587, 591 (8th Cir.1997) (emphasis omitted). Whether a particular factor is a permissible basis for departure is a question of law, which we review without deference to the district court's resolution of the issue. Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996); United States v. Kalb, 105 F.3d 426, 428 (8th Cir.1997).

In determining a sentence under the United States Sentencing Guidelines, the district court may depart below the applicable sentencing range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b); see U.S. Sentencing Guidelines Manual § 5K2.0, p.s. (1995). "To determine whether a circumstance was adequately taken into consideration by the Commission, Congress instructed courts to 'consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.' " Koon, --- U.S. at ----, 116 S.Ct. at 2044 (quoting 18 U.S.C. § 3553(b)). Thus, we must determine whether the Sentencing Commission explicitly considered the purity level of methamphetamine in a mixture, and if so, whether the circumstance is a forbidden basis for departure or one that may, in an appropriate situation, take the case outside the heartland of cases generally covered by the guideline. See USSG § 5K2.0, p.s. (indicating that a circumstance not ordinarily relevant to a departure decision may be relevant if it "is present to an unusual degree and distinguishes the case from the 'heartland' cases covered by the guidelines in a way that is important to the statutory purposes of sentencing").

We begin our discussion in this case with a look at the relevant statutory language and find that Congress explicitly considered the purity level of methamphetamine when it determined the penalties to be imposed for its illegal use. When describing the mandatory minimum and maximum penalties for manufacturing, distributing, or dispensing a controlled substance, Congress made a distinction between pure methamphetamine and "a mixture or substance containing a detectable amount of methamphetamine." 21 U.S.C. § 841(b). Congress provided a 10-year minimum sentence (20 years if death or serious bodily injury results) for manufacturing, distributing, or dispensing either "100 grams or more of methamphetamine" "or 1 kilogram or more of a mixture or substance containing a detectable amount of methamphetamine." 21 U.S.C. § 841(b)(1)(A)(viii) (emphasis added). Similarly, Congress provided a 5-year minimum sentence for manufacturing, distributing, or dispensing either "10 grams or more of methamphetamine" "or 100 grams or more of a mixture or substance containing a detectable amount of methamphetamine." Id. § 841(b)(1)(B)(viii) (emphasis added). Thus, Congress chose to expressly distinguish between pure methamphetamine and lower purity mixtures containing a detectable amount of methamphetamine, specifically providing that a lesser amount of pure methamphetamine will invoke the same statutory minimum penalty as a much greater amount of a...