U.S. v. Ochoa-Heredia, CR 99-4069-MWB.

• Decision Date: 03 January 2001
• Docket Number: No. CR 99-4069-MWB.,CR 99-4069-MWB.
• Citation: 125 F.Supp.2d 892
• Parties: UNITED STATES of America, Plaintiff, v. Jose OCHOA-HEREDIA, Defendant.
• Court: U.S. District Court — Northern District of Iowa

125 F.Supp.2d 892

UNITED STATES of America, Plaintiff, v. Jose OCHOA-HEREDIA, Defendant.

No. CR 99-4069-MWB.

United States District Court, N.D. Iowa, Western Division.

January 3, 2001.

Shawn Wehde, Assistant United States Attorney, Waterloo, IA, for Plaintiff.

Teresa A. O'Brien, Sioux City, IA, for Defendant.

MEMORANDUM SENTENCING OPINION

BENNETT, Chief Judge.

                TABLE OF CONTENTS
                I. INTRODUCTION ............................................................. 893
                    A. Factual Background .................................................... 893
                    B. Procedural Background ................................................. 894
                II. LEGAL ANALYSIS ........................................................... 895
                    A. Suggestions From Supreme Court Precedent .............................. 896
                       1. Chapman ............................................................ 896
                       2. Neal ............................................................... 898
                

                B. Decisions Of The Circuit Courts Of Appeals ........................... 901
                       1. Eighth Circuit precedent .......................................... 901
                       2. Richards and plain meaning ........................................ 903
                          a. The majority decision .......................................... 903
                          b. The dissenting opinions ........................................ 907
                       3. Other circuits and the "unusable/unmarketable rule" ............... 909
                          a. The Tenth Circuit Court of Appeals after Richards .............. 909
                          b. The First Circuit Court of Appeals ............................. 910
                          c. Courts adopting the "unusable/unmarketable rule" ............... 911
                             i. Pre-amendment applications of the rule ...................... 911
                             ii. Post-amendment applications ................................ 921
                    C. Applicability Of The "Unusable/Unmarketable Rule ..................... 923
                       1. Proper framing of the question .................................... 924
                       2. Plain meaning and legislative intent .............................. 925
                       3. Guidance of other courts .......................................... 927
                III. CONCLUSION ............................................................. 929
                

In the course of interpreting certain language in 38 U.S.C. § 445, Justice William O. Douglas observed, "[C]ommon sense often makes good law." Peak v. United States, 353 U.S. 43, 46, 77 S.Ct. 613, 1 L.Ed.2d 631 (1957). This court believes that common sense also makes good law in the interpretation of 21 U.S.C. § 841, where a defendant's mandatory minimum sentence for possession of methamphetamine with intent to distribute it under § 841 depends upon whether the court "counts" the weight of over 3,000 grams of a toxic medium or only the 26.2 grams of actual (pure) methamphetamine contained in the medium. The Circuit Courts of Appeals to consider the question are split on the proper interpretation of the mandatory minimum sentencing provisions of § 841 when a medium containing a controlled substance is unusable or unmarketable. However, a majority of those courts has adopted the "unusable/unmarketable rule," which excludes from the calculation of drug quantity the weight of any medium that prevents the controlled substance from being usable or marketable without further processing. Because this court must not "produce a result demonstrably at odds with the intentions of [a statute's] drafters," United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), this court also adopted the "unusable/unmarketable rule" at the defendant's sentencing hearing and imposed a mandatory minimum sentence of five years based upon the weight of the actual (pure) methamphetamine contained in the toxic medium, rather than the ten-year mandatory minimum sentence, advocated by the government, based upon the weight of the entire toxic medium containing the methamphetamine. The court deems it appropriate to explain in this written ruling why the "plain meaning" of § 841, the rules of statutory interpretation, and the Supreme Court's reading of the statute as applied to LSD in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), when viewed from a common sense perspective, dictated this court's conclusion on the complicated question of the applicable mandatory minimum sentence in this case.

I. INTRODUCTION

A. Factual Background

Defendant Jose Ochoa-Heredia and a co-defendant were passengers in a taxicab with Douglas County, Nebraska, license plates and a large advertisement for an Omaha radio station in its back window when the taxicab was stopped by a Trooper with the Iowa State Patrol for speeding on Interstate 29 near Sioux City, Iowa, on October 31, 1999. The driver of the taxicab explained to the State Trooper that he had picked up his two passengers at a bus depot in Omaha, and that they had asked him to drive them to Sioux City, where they said they were going to work in a packing house. Ochoa-Heredia was carrying a resident alien card and his companion had a California driver's license.

When the State Trooper asked Ochoa-Heredia and his companion if they would mind opening their bags, Ochoa-Heredia agreed. The taxicab driver opened the trunk of the vehicle revealing three duffle bags, one brown, one light teal, and one dark teal in color. Ochoa-Heredia identified two of the bags as his, the brown one and the light teal one, but a search of those bags revealed nothing. When the State Trooper started to ask Ochoa-Heredia another question, Ochoa-Heredia opened the third bag as well, the dark teal one, revealing a cylindrical object, the size and shape of a soda bottle, wrapped in duct tape and Saran Wrap. Ochoa-Heredia denied knowing what the object was and both he and his companion denied ownership of the dark teal bag. However, the taxicab driver asserted that the trunk of the taxicab had been empty before he picked up the two men in Omaha. Upon a search of the dark teal bag, the State Trooper found six more suspicious bottles. A drug dog called to the scene "hit" on the bag in which the suspicious bottles were located and a field test of some of their contents was positive for methamphetamine. Ochoa-Heredia and his companion were then arrested.

A criminalist in the chemistry section of the Iowa Department of Criminal Investigation (DCI) Criminalistics Laboratory testified at the trial of Ochoa-Heredia's companion that the bottles contained approximately 20.8 grams of actual (pure) methamphetamine in some sort of medium, but that the total weight of the methamphetamine and the medium was in excess of 3,000 grams. See Trial Transcript, United States v. Huerta-Orozco, No. CR 99-4069, Excerpt of Testimony of Staci Schmeiser, p. 21, l. 7 to p. 23, l. 21; see also Government's Trial Exhibit 19. The criminalist testified that the results of an initial test of the medium were "consistent with freon," but that she did not have a standard of freon to run in the laboratory to confirm that analysis. Id. at p. 20, l. 17; see also id. at p. 24, l. 2-12. At Ochoa-Heredia's sentencing hearing, the parties stipulated on the record that the medium, whether freon or not, was toxic, and that further processing would be required to remove the pure methamphetamine from the medium before the methamphetamine could be used.¹

B. Procedural Background

Ochoa-Heredia and his companion were indicted on November 17, 1999, on a one-count indictment charging them with possession of 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine with intent to distribute it. On December 22, 1999, the defendants filed a joint motion to suppress much of the evidence from the traffic stop of the taxicab, including the bottles containing methamphetamine and the unknown medium. On April 18, 2000, the undersigned accepted in part a report and recommendation by a magistrate judge on the defendants' motion to suppress. Specifically, the undersigned (1) denied the defendants' motion with respect to all evidence secured as a result of the search of the duffle bag in which the methamphetamine was found; (2) denied the motion with respect to any statements made by the defendants up to the point at which the first bottle containing methamphetamine was found and Ochoa-Heredia's co-defendant was told to take a seat in the taxicab; but (3) granted the motion as to any statements made by either of the defendants after the first bottle containing methamphetamine was found and Ochoa-Heredia's co-defendant was told to take a seat in the taxicab.

The trial of Ochoa-Heredia and his companion was originally scheduled to begin on July 3, 2000. However, shortly before that trial date, Ochoa-Heredia decided to plead guilty to the offense charged. Ochoa-Heredia pleaded guilty before a magistrate judge on September 14, 2000. The undersigned accepted the magistrate judge's report and recommendation regarding the guilty plea on October 2, 2000. Ochoa-Heredia's co-defendant elected to go to trial. After a jury trial that began on October 31, 2000, he was convicted on the offense charged on November 2, 2000.

Ochoa-Heredia came on for sentencing pursuant to his guilty plea on December 21, 2000. At the sentencing, the United States withdrew some of its objections to the pre-sentence investigation report (PSIR) prepared by the United States Probation Office and advised the court that the parties had stipulated to a base offense level of 26 and a criminal history category of 1. The government also stipulated that the mixture or substance at issue in Ochoa-Heredia's offense contained approximately 26.2 grams of actual (pure) methamphetamine.² In essence, the government's remaining objections to the PSIR boiled down to the government's contention that the mandatory minimum sentence for the offense to which Ochoa-Heredia had pleaded guilty is ten years, while...