United States v. Hayes, No. CR 12–4040–MWB.

• Court: United States District Courts. 8th Circuit. Northern District of Iowa
• Writing for the Court: MARK W. BENNETT
• Citation: 948 F.Supp.2d 1009
• Parties: UNITED STATES of America, Plaintiff, v. Willie HAYES, Defendant.
• Decision Date: 07 June 2013
• Docket Number: No. CR 12–4040–MWB.

948 F.Supp.2d 1009

UNITED STATES of America, Plaintiff,
v.
Willie HAYES, Defendant.

No. CR 12–4040–MWB.

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

June 7, 2013.

[948 F.Supp.2d 1010]

Robert A. Knief, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

Jay Elliott Denne, Munger, Reinschmidt & Denne, Sioux City, IA, for Defendant.

SENTENCING OPINION AND STATEMENT OF REASONS PURSUANT TO 18 U.S.C. § 3553(c) EXPLAINING A POLICY DISAGREEMENT WITH THE METHAMPHETAMINE GUIDELINES
MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.
INTRODUCTION
1011

A.	Indictment, Guilty Plea, And Sentencing Hearing	1011
B.	Arguments Of The Parties	1011

II.
ILLEGAL ANALYSIS
1012

A.	Sentencing Methodology	1012
B.	Policy Disagreement With The Methamphetamine Guidelines	1014

1.	Background on policy disagreement based variances	1014
2.	Flaws in the methamphetamine Guidelines	1018

a.
Creation of methamphetamine Guidelines
1018

i.	The Sentencing Commission's institutional role	1018
ii.	The methamphetamine Guidelines are not based on; empirical data	1022

b.	The methamphetamine Guidelines are excessive	1027
c.	The methamphetamine Guidelines ranges are not heartlands	1029

C.
Application
1031

III.	CONCLUSION	1033
IV.	APPENDIX	1033

This case raises the question of the merits of the United States Sentencing Guidelines ¹ range, pursuant to

[948 F.Supp.2d 1011]

U.S.S.G. § 2D1.1, for defendants convicted of methamphetamine offenses. In my nineteen years on the federal bench, I have sent over 3,500 people to prison, the majority of whom are drug offenders. Methamphetamine is the primary drug type involved in drug-trafficking offenses in the Northern District of Iowa. In 2011, methamphetamine offenses made up 18.1% of the drug trafficking offenses across the country. Booker Report, Part C: Drug Trafficking Offenses, Methamphetamine, at 1. That same year, methamphetamine offenses made up 72.3% of the drug trafficking offenses in the Northern District of Iowa. Id. at 2.

This Sentencing Memorandum supplements findings made on the record at defendant Willie Hayes's sentencing hearing on June 3, 2013.

I. INTRODUCTION A. Indictment, Guilty Plea, And Sentencing Hearing

On March 21, 2012, an Indictment was returned against Hayes, with the charge that he did knowingly and unlawfully combine, conspire, confederate, and agree, with others whose identities are both known and unknown to the Grand Jury, to knowingly, intentionally, and unlawfully possess with the intent to distribute 5 grams or more actual (pure) methamphetamine or 50 grams of a methamphetamine mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance within 1,000 feet of Irving Elementary School, located in Sioux City, Woodbury County, Iowa, in violation of 21 U.S.C. §§ 846(a)(1), 841(b)(1)(B), 860, and 846. On January 30, 2013, Hayes pled guilty before U.S. Magistrate Judge Leonard T. Strand to Count 1 of the four-count superseding indictment, pursuant to a plea agreement (docket no. 76). Count 1 charged Conspiracy to Possess with the Intent to Distribute 35 Grams or More of Methamphetamine Actual, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). On that same day, I accepted Hayes's guilty plea. A probation officer then prepared a presentence report (“PSR”). The PSR found that Hayes was a Career Offender because of two predicate felony convictions. On May 23, 2013, Hayes filed a Motion For Downward Departure And Variance (docket no. 92) and a well-drafted Sentencing Brief (docket no. 93) in which he raised several issues, including a cutting-edge issue on the methamphetamine Guidelines. For reasons only known to the prosecution, the government chose not to file a written resistance to Hayes's Motion.

At the sentencing hearing, Hayes moved for a downward departure and variance. He argued that there was an over-representation of criminal history, and asked that I decline to qualify the reckless use of firearm with bodily injury (PSR ¶ ¶ 20, 26) and the burglary offense (PSR ¶ 34) as predicate offenses. Next, Hayes argued that the application of the Career Offender enhancement overstates the seriousness of Hayes's criminal record, his risk of reoffending, and his culpability in relation to his federal offense. Hayes contended that the use of methamphetamine weight overstates the seriousness of Hayes's offense and his risk of reoffending. The prosecution made a motion for downward departure based on substantial assistance under U.S.S.G. § 5K1.1. After oral arguments and Hayes's allocution, I sentenced Hayes. This opinion explains and amplifies one of the rationales for my sentence. Many issues were covered at the sentencing hearing, but this opinion is limited to the issue of the methamphetamine Guidelines.

B. Arguments Of The Parties

Hayes requests that I vary down from the applicable Guidelines range, based on the factors of 18 U.S.C. § 3553(a) and

[948 F.Supp.2d 1012]

policy disagreements with U.S.S.G. § 2D1.1(c)(5), because U.S.S.G. § 2D1.1(c)(5) yields an excessive sentence. Hayes argues that I should not rely on U.S.S.G. § 2D1.1(c)(5) and the PSR's weight of 38.1 grams of actual methamphetamine to determine Hayes's Guidelines sentence because the Commission strayed from its institutional role in crafting § 2D1.1(c)(5) and the Guidelines fail to promote the sentencing goals of 18 U.S.C. § 3553(a). Hayes examines the increase in Guidelines ranges for methamphetamine offenses over time, highlighting the manner in which the Commission drifted from its institutional role. Hayes asserts that his Guidelines range would have been 46–57 months in 1987 and it has increased roughly 360 % to his current Guidelines range of 168–210 months. Defendant's Brief at 28. Hayes, in an especially well-crafted brief, argues that the methamphetamine Guidelines should be given less deference than Guidelines that were properly crafted with empirical data and institutional expertise. Next, Hayes asserts that the methamphetamine Guidelines fail to promote the goals of sentencing in 18 U.S.C. § 3553(a) because they have a strong potential to overstate the seriousness of a defendant's record and risk of reoffending, resulting in unwarranted sentencing disparities.

I viewed the prosecution's failure to file a resistance to Hayes's Motion For Downward Departure And Variance (docket no. 92) as a waiver to argument on the methamphetamine Guidelines issue. See N.D. IA. L.R. Rule 7(f) (“If no timely resistance to a motion is filed, the motion may be granted without notice. If a party does not intend to resist a motion, the party is encouraged to file a statement indicating the motion will not be resisted.”). However, I still allowed the prosecution to present arguments at the sentencing hearing. I considered the prosecution's arguments, none of which were remotely persuasive, and I determined that the prosecution's position did not undermine the powerful rationale articulated by Judge Gleeson in United States v. Ysidro Diaz, No. 11–CR–00821–2 (JG), 2013 WL 322243 (E.D.N.Y. Jan. 28, 2013).

II. LEGAL ANALYSIS A. Sentencing Methodology

Following the Supreme Court's decision in Gall v. United States, the Eighth Circuit Court of Appeals has repeatedly stated the methodology for determining a defendant's sentence as follows:

The district court should begin “by correctly calculating the applicable Guidelines range.” “[T]he Guidelines should be the starting point and the initial benchmark[, but] [t]he Guidelines are not the only consideration [.]” The district judge should allow “both parties an opportunity to argue for whatever sentence they deem appropriate,” and then should “consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.”

United States v. Hill, 552 F.3d 686, 691 (8th Cir.2009) (quoting Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)) (internal citations omitted); United States v. Roberson, 517 F.3d 990, 993 (8th Cir.2008); see also United States v. Feemster, 572 F.3d 455, 461–62 (8th Cir.2009) ( en banc ).

The Supreme Court has recognized that a party's argument for a sentence outside the calculated Guidelines range may “take either of two forms.” Rita v. United States, 551 U.S. 338, 344, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). A party may “argue within the Guidelines' framework, for a departure,” id. (emphasis in original), or a party may “argue that, independent of the Guidelines, application of the factors set forth in 18 U.S.C. § 3553(a) warrants a

[948 F.Supp.2d 1013]

different] sentence.” ²Id. The Eighth Circuit Court of Appeals has made clear that, while “similar factors may justify either a variance or a traditional departure,” United States v. Woods, 670 F.3d 883, 888 (8th Cir.2012), district courts are not limited by the Guidelines' departure policy framework when determining whether and by what extent to vary, see United States v. Chase, 560 F.3d 828, 832 (8th Cir.2009); United States v. VandeBrake, 679 F.3d 1030, 1037 (8th Cir.2012); see also United States v. Villareal–Amarillas, 562 F.3d 892, 898 (8th Cir.2009) (“The judge is cabined, but also liberated, by the § 3553(a) factors.”).³

As a matter of procedure, the Eighth Circuit Court of Appeals has instructed that district courts should “continue to engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines' structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a).” See United States v. Washington, 515 F.3d 861, 866 (8th Cir.2008).

Although “a court of appeals may apply a presumption of reasonableness when conducting substantive review of a sentence within the advisory range, ‘the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.’ ” United States v. Henson, 550 F.3d 739, 740 (8th Cir.2008) (quoting Rita, 551 U.S....