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United States v. Nawanna

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

May 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TYSON SCOTT NAWANNA, 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 U.S. DISTRICT COURT JUDGE NORTHERN DISTRICT OF IOWA

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 3

         A. Pre-Sentencing Proceedings ...................................................... 3

B. Methamphetamine Guidelines Arguments ..................................... 6

         II. LEGAL ANALYSIS ...................................................................... 10

         A. Policy Disagreements With Guidelines ....................................... 10

1. Standards .................................................................. 10

2. Policy disagreement with the methamphetamine Guidelines .................................................................. 11

a. Previously recognized flaws .................................... 11

b. The flaw of drug purity as a proxy for culpability .......................................................... 12

B. Application ......................................................................... 20

         III. CONCLUSION ............................................................................ 24

         The United States Sentencing Guidelines[1] differentiate between methamphetamine mixture and actual (pure) methamphetamine or “ice.”[2] That difference is the primary basis for the defendant's motion for a downward variance. Even though he is a first-time drug offender who has never been in prison, he argues that he faces a “breathtakingly high” Guidelines sentencing range of 360 months to life, where the methamphetamine at issue was treated as actual (pure) methamphetamine or ice. He argues that the harsh methamphetamine Guidelines overstate his culpability and should be rejected on policy grounds. Specifically, his argument, of first impression for me, is that the methamphetamine Guidelines are based on a flawed premise, set out in U.S.S.G. § 2D1.1, cmt. n.27(C), that drug purity is a proxy for culpability. The prosecution responds that, although I am free to place whatever weight I wish on the various advisory Guidelines, the defendant's advisory Guidelines sentencing range is appropriate in this case, because it reflects the dangerous role the defendant played in dealing pure methamphetamine. Thus, this case requires me, once again, to consider the question of the merits of the advisory Guidelines sentencing range for a defendant convicted of methamphetamine offenses. In United States v. Hayes, 948 F.Supp.2d 1009 (N.D. Iowa 2013), I followed the lead of two other federal district judges by reducing a methamphetamine defendant's advisory Guidelines sentencing range by one third, on the basis of a policy disagreement with the methamphetamine Guidelines. This sort of variance was for low level, non-violent, addict offenders. This opinion, which supplements my rationale on the record at the defendant's sentencing hearing, explains why I find that a similar reduction, based on a different calculation, is appropriate in this case.

         I. INTRODUCTION

         A. Pre-Sentencing Proceedings

         In a March 22, 2017, Indictment, defendant Tyson Scott Nawanna was charged with three methamphetamine offenses. Count 1 charged that, from about 2015 and continuing to on or about March 16, 2016, Nawanna conspired to distribute 500 grams or more of methamphetamine mixture containing 50 grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Counts 2 and 3 charged that, on or about January 16, 2016, and March 1, 2016, respectively, Nawanna distributed 5 grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). On May 18, 2017, Nawanna pleaded guilty to all three counts of the Indictment, without a plea agreement, before United States Magistrate Judge Kelly K.E. Mahoney, who recommended that I accept Nawanna's guilty plea. On June 6, 2017, I accepted Nawanna's guilty plea. After various continuances, Nawanna's sentencing hearing was set for January 24, 2018.

         On January 17, 2018, the United States Probation Officer filed a Presentence Investigation Report (PSR). Because this opinion focuses on the methamphetamine Guidelines, my summary of the PSR will focus on the Offense Conduct statement and the Guidelines calculations.

         The PSR indicates that, between 2015 and late 2016, Nawanna conspired with others to distribute at least 33.158 grams of actual (pure) methamphetamine and 4, 406.39 grams of ice.[3] Although Nawanna objects to these quantities, he does not dispute the resulting base offense level on [**] procedural grounds. Nawanna maintained an aggravating role in the conspiracy, specifically, because he had one person who acted as his “driver” and another who acted as his “muscle.” On January 16, 2016, the date of the offense charged in Count 2, a confidential informant bought approximately one-half ounce of methamphetamine from Nawanna. Laboratory analysis of that methamphetamine confirmed that it weighed 12.9 grams, was 99.6 percent pure, and contained 12.8 grams of actual (pure) methamphetamine. On March 16, 2016, the date of the offense charged in Count 3, Nawanna was arrested during an undercover buy in which Nawanna agreed to sell a half ounce of methamphetamine to a cooperator. Surveillance officers saw a vehicle driven by Nawanna's “driver, ” in which Nawanna and his “muscle” were passengers, arrive at the arranged location. After Nawanna called the cooperator to come out to the vehicle, law enforcement officers detained Nawanna, his “driver, ” and his “muscle, ” and searched them and their vehicle. They found that the “muscle” was holding a loaded Smith and Wesson Model 63, .22 caliber revolver. The officers also seized a total of 12.78 grams of methamphetamine from the vehicle. That methamphetamine was not tested but was treated as ice for sentencing purposes. The officers also found an AR-15 in the trunk of the vehicle.

         The three counts of the Indictment are grouped for purposes of Guidelines calculations pursuant to U.S.S.G. § 3D1.2(d). Nawanna's base offense level is derived from the total of 88, 791.16 kilograms of marijuana equivalency, consisting of 33.158 grams of actual (pure) methamphetamine (663.16 kilograms marijuana equivalency) and 4, 406.39 grams[4] of ice (88, 127.80 kilograms marijuana equivalency), where 1 gram of actual (pure) methamphetamine or ice is deemed equivalent to 20 kilograms of marijuana. U.S.S.G. § 2D1.1, cmt. n.8(D). The base offense level for at least 3, 000 kilograms of marijuana but less than 90, 000 kilograms is 36. U.S.S.G. § 2D1.1(c)(2). Nawanna's offense level is increased by 2 levels for the specific offense characteristic of possession of a dangerous weapon, pursuant to U.S.S.G. § 2D1.1(b)(1), then increased by 3 levels as an adjustment for his role in the offense as a manager or supervisor (but not an organizer or leader) and criminal activity involving five or more participants, pursuant to U.S.S.G. § 3B1.1(b). With no adjustment for obstruction of justice, Nawanna's adjusted offense level is 41. The PSR also scores a 2-level decrease for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), and another 1-level decrease for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(b), assuming that the prosecution would make the required motion, which the prosecution did do. Thus, Nawanna's total offense level is 38.

         Nawanna had 12 criminal history points, based on prior offenses. Eight of Nawanna's criminal history points were for various automobile driving offenses. He had no prior felony or misdemeanor drug or firearm offenses. Because 8 of his criminal history points were for offenses that did not involve a sentence of at least 60 days, only 4 of those 8 could be counted, pursuant to U.S.S.G. § 4A1.1(c). Thus, Nawanna ultimately had 8 points scored for prior offenses. Nawanna also received 2 additional criminal points, pursuant to U.S.S.G. § 4A1.1(d), for committing the instant offense while under a criminal justice sentence for a prior offense, bringing his total to 10. With a criminal history category of V, based on 10 criminal history points, pursuant to U.S.S.G. § 4A1.1, and a total offense level of 38, Nawanna's advisory Guidelines sentencing range is 360 months to life.

         On January 17, 2018, Nawanna filed the Motion For Downward Variance now before me. Extensive briefing, some at my request, followed, including dueling reply briefs. I sentenced Nawanna on April 25, 2018.

         B. Methamphetamine Guidelines

         Arguments

         In Nawanna's original brief in support of his Motion For Downward Variance, Nawanna argues, inter alia, that the quantity and purity of methamphetamine involved in the offense play an outsized role in his advisory Guidelines sentencing range, because of the 10-to-1 ratio between actual (pure) methamphetamine (or ice) and methamphetamine mixture, pursuant to U.S.S.G. § 2D1.1, cmt. n.8(D). He contends that the ratio is based on an outdated premise that there is a supposed link between drug purity and culpability set out in U.S.S.G. § 2D1.1 cmt. n.27(C). That comment states, “[T]hat a defendant is in possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs.” Nawanna argues that, contrary to this premise, methamphetamine recently seized in the Sioux City area is often 97, 98, or 99 ...


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