United States v. Kamper

• Decision Date: 08 May 2012
• Docket Number: No. 1:11–CR–3–001.,1:11–CR–3–001.
• Citation: 860 F.Supp.2d 596
• Parties: UNITED STATES of America v. Glenn KAMPER.
• Court: U.S. District Court — Eastern District of Tennessee

860 F.Supp.2d 596

UNITED STATES of America

v.Glenn KAMPER.

No. 1:11–CR–3–001.

United States District Court,

E.D. Tennessee,

at Chattanooga.

May 8, 2012.

Jay Woods, U.S. Department of Justice, Chattanooga, TN, for United States of America.

Mary Ellen Coleman, Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, TN, for Glenn Kamper.

SENTENCING MEMORANDUM

CURTIS L. COLLIER, Chief Judge.

On January 26, 2012, the Court held a sentencing hearing for Defendant Glenn Kamper (“Defendant” or “Kamper”). At that hearing, the Court heard argument from Defendant and the government on Defendant's motion for determination of appropriate marijuana-to-MDMA ¹ ratio pursuant to Kimbrough v. United States (Court File No. 162),² and then denied the motion. Given the novelty of the issue,³ the Court has written this opinion to explain more fully its decision.

I. BACKGROUNDA. Defendant's Offense

The government charged Kamper and six codefendants on January 25, 2011 with conspiracy to distribute MDMA in violation of federal law between October 2009 and January 2011 (Court File No. 12). Kamper was also charged with distribution of MDMA in connection with an event that occurred on January 19, 2011. On July 19, 2011, Kamper pleaded guilty to the conspiracy count in the indictment pursuant to a plea agreement (Court File No. 108). In that plea agreement, Kamper stipulated to the following facts:

Based on information received from confidential informants, agents from the Drug Enforcement Administration (“DEA”), the Federal Bureau of Investigation, and the Chattanooga Police Department investigated a group of individuals responsible for the distribution of 3, 4–methlenedioxymethamphetamine, also known as “MDMA” or “ecstasy,” a Schedule I controlled substance in the Chattanooga, Tennessee, area. The organization was responsible for the distribution of MDMA, though some evidence also showed that the MDMA was locally produced.

The defendant entered into an agreement with others to distribute MDMA.

On November 15 and 17, 2010, a confidential source purchased a total of thirty-five grams of a mixture and substance containing MDMA from the defendant's codefendants under controls. On January 19, 2011, DEA executed a search warrant on one of the above co-defendant's residence and located 447.5 grams of a mixture and substance containing MDMA. Following interviews pursuant to Miranda rights waivers, agents identified the defendant as being involved with the MDMA seized as described above. Agents took statements of co-defendants that the defendant had provided at least 1/2 ounce of a mixture and substance containing MDMA per month to one of the cooperating co-defendants. A series of text messages to the defendant prompted the delivery of another ounce of MDMA to the cooperating co-defendant; ultimately, 27.5 grams of a mixture and substance containing MDMA was delivered.

( Id. at pp. 2–3). According to the Presentence Investigation Report (“PSR”) prepared on Kamper, the total quantity of MDMA involved in the conspiracy was 1,218.75 grams (PSR, ¶ 22). Kamper did not object at sentencing to being held responsible for this amount.

Prior to sentencing, Kamper filed two motions. First, he moved for a determination of appropriate marijuana-to-MDMA ratio pursuant to Kimbrough v. United States (Court File No. 162), to which the government responded (Court File No. 167). Second, Kamper moved for a variance under the factors in 18 U.S.C. § 3553⁴ (Court File No. 174); the government filed no response. In this opinion, the Court addresses Kamper's arguments concerning the proper MDMA-to-marijuana ratio.

B. MDMA–to–Marijuana Ratio

Kamper's motion draws on a broader history of the development of the MDMA-to-marijuana ratio under the United States Sentencing Guidelines (“Guidelines” or “USSG”). Before 2001, the Guidelines established one gram of MDMA as equivalent to thirty-five grams of marijuana. United States Sentencing Commission (“Commission”), Report to Congress: MDMA Drug Offenses, Explanation of Recent Guideline Amendments 6 (2001) (“MDMA Report”). In 2000, however, Congress passed the Ecstasy Anti–Proliferation Act, which directed the Commission to review and increase penalties for any offense relating to the manufacture and trafficking of MDMA, and required the Commission to submit a report on the resulting amendments to Congress. Pub.L. No. 106–310, 114 Stat. 1101, 1241–45. The MDMA Report followed.

To comply with the Congressional directive, the Commission sought input from a wide range of participants. First, the Commission “began reviewing the available scientific and popular literature on MDMA,” and involved the Department of Justice in this process. MDMA Report, p. 3. Second, the Commission heard from DEA officials regarding the trafficking pattern of MDMA and law enforcement challenges associated with the drug. Third, the Commission invited representatives from the National Institute on Drug Abuse (“NIDA”) to talk about the health and pharmacological effects associated with MDMA. Moreover, the Commission sought considerable public input. It delayed a vote on the MDMA amendment until after it held its annual public meeting. Additionally, it received “literally hundreds of letters, e-mails, and other written submissions ... from a diverse array of constituents, including clinicians, physicians, psychologists, academic researchers, users, defense attorneys, and other interest groups.” Id. at 4.

Having considered input from this wide array of sources, the Commission concluded penalties for MDMA offenses should be more severe than for powder cocaine, which has a 200:1 marijuana equivalency, but less severe than for heroin, which has a 1000:1 marijuana equivalency. Id. at 5. The Commission decided on less severe sentences for MDMA offenses than for heroin because:

(1) there are many more heroin cases in the federal system than MDMA cases, (2) heroin is more addictive than MDMA, (3) heroin has many more emergency room visits and deaths associated with its use than MDMA because, unlike MDMA which generally is taken orally, heroin is injected, (4) heroin has more violence associated with both its users and distribution system than MDMA, in part because MDMA users typically do not resort to violence to support their drug use, and (5) heroin causes greater secondary health effects, such as the spread of HIV and hepatitis, because it is injected.

Id. The Commission then offered three reasons for imposing higher sentences for MDMA offenses than for powder cocaine: “(1) unlike MDMA, powder cocaine is not neurotoxic, (2) powder cocaine is not aggressively marketed to youth in the same manner as MDMA, and (3) powder cocaine is only a stimulant, but MDMA acts as both a stimulant and a hallucinogen.” Id. The Commission ultimately established an MDMA-to-marijuana equivalency ratio of 1:500 grams. Id.

II. DISCUSSION

Kamper asks this Court to categorically reject the current 1:500 MDMA-to-marijuana ratio under the Guidelines and replace it with a lower one. In making this request, Kamper in essence asks the Court to step into the shoes of Congress and the Commission and legislate a change to the drug equivalency table under the Guidelines. Were the Court to take this step, it would reach beyond the bounds of the Constitution's vesting of the “judicial Power of the United States” in the federal judicial branch. U.S. Const. art. III, § 1. In upholding the constitutionality of the Sentencing Commission against a separation of powers challenge, the Supreme Court observed “because Congress vested the power to promulgate sentencing guidelines in an independent agency, not a court, there can be no serious argument that Congress combined legislative and judicial power within the Judicial Branch.” Mistretta v. United States, 488 U.S. 361, 394, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (emphasis added). Although United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Guidelines advisory, neither that decision nor its progeny permits a federal court to extend the Article III judicial power to include the legislative and rulemaking powers vested in Congress, and through Congressional delegation, in the Commission. Because the Court cannot take on the powers of Congress and the Commission to establish sentencing policy, and because the Court would refrain from doing so in this case for institutional reasons even if it could assume such powers, the Court denied Kamper's motion.

A. Sentencing Methodology and Kimbrough v. United States

Shortly after the United States Supreme Court held the Guidelines advisory in Booker, this Court announced the methodology under which it would impose sentence on a criminal defendant. United States v. Phelps, 366 F.Supp.2d 580 (E.D.Tenn.2005). The Court further explained this methodology in United States v. McElheney, 630 F.Supp.2d 886 (E.D.Tenn.2009), and most recently, in United States v. Rothwell, 847 F.Supp.2d 1048, No. 1:11–CR–72, 2012 WL 953705 (E.D.Tenn. Mar. 21, 2012). In brief, the Court follows a three-step process. First, after resolving any objections to the PSR or any outstanding factual or legal disputes related to a defendant's criminal history or offense of conviction, the Court determines the proper advisory Guidelines range. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (“[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range ....”) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); see also United States v. Bistline, 665 F.3d 758, 761 (6th Cir.2012) (“Although the Sentencing Guidelines are now only advisory, they still ‘should be the starting point and the initial benchmark’ for choosing a defendant's sentence.”) (quoting Gall, 552 U.S. at 49, 128 S.Ct. 586). Second, after determining whether, pursuant to the USSG Manual, any departures from the...