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7th Circuit: Ice Methamphetamine Sentence Enhancement Requires Proof of Purity

Scott Carnell pleaded guilty to a conspiracy to distribute 50 grams or more of meth under 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. The Government sought to classify the 2.37 kg of meth attributed to the conspiracy as “ice,” which is treated as “pure” meth or “methamphetamine (actual)” instead of a mixture as long as it is at least 80% pure. Guidelines § 2D1.1, note C.

Over Carnell’s objection, the U.S. District Court for the Southern District of Illinois sustained this classification because the Government introduced evidence where the codefendants referred to the drugs as “ice,” lab reports stating the substance was “crystalline,” and law enforcement testimony about the habits and practices of meth dealers and users who said the drugs were of high purity. However, the lab reports merely confirmed the substance was meth but did not measure its purity because the two agencies conducting the testing lacked the capability to do so.

Carnell was sentenced to 192 months in prison based on a Guidelines offense level of 36 (after adjustments). He appealed, claiming the Government failed to meet its burden to prove the purity of the substance in question.

The Government bears the burden of establishing that the meth involved is the meth described in the Guidelines. United States v. McEntire, 153 F.3d 424 (7th Cir. 1998). However, the sentencing court “must only find that a preponderance of reliable evidence supports the drug quantity finding.” United States v. Tankson, 836 F.3d 873 (7th Cir. 2016).

When reviewing the Guidelines, the sentencing court’s interpretation “begin[s] with the text of the provision and the plain meaning of the words in the text.” United States v. Hill, 645 F.3d 900 (7th Cir. 2011). And when “Congress includes particular language in one section of a statute but omits it in another,” a court must presume that Congress intended a difference in meaning. Russello v. United States, 464 U.S. 16 (1983). Application notes to the Guidelines are considered “as part of the Guidelines themselves, and not mere commentary on them.” United States v. Arnaout, 431 F.3d 994 (7th Cir. 2005).

The Guidelines advocates upward departures for drugs of a higher purity except for “PCP, amphetamine, methamphetamine, hydrocodone, or oxycodone for which the guideline itself provides for the consideration of purity.” § 2D1.1, commentary app. note 27(C). This is done using the “actual” weight. For example, 10 grams of PCP at 50% purity contains 5 grams of PCP (actual). Additionally, the Guidelines treats a meth mixture that is at least 80% pure as “actual” meth. § 2D1.1, note C.

The Government, citing United States v. Padilla, 520 F.3d 766 (7th Cir. 2008), and United States v. Anderson, 450 F.3d 294 (7th Cir. 2006), argued it could establish the identity of the drug in question based solely on the testimony and “experience of users, dealers and law enforcement officers.”

According to testimony by law enforcement at Carnell’s sentencing, meth that is 80% pure can be crystalline or powder, the same as meth that is (even significantly) less than 80%. It is impossible to distinguish them visually. So the fact the meth at issue was crystalline doesn’t establish that it was at least 80% pure.

The Court expressed doubt that the drug users could make the distinction accurately enough to satisfy the Government’s burden. There is no “evidence [that] even drug dealers and heavy users can detect the difference between 79% and 80% pure methamphetamine.” In fact, the Court stated that “[c]ommon sense suggests otherwise.” Thus, the Court concluded that experience with drugs alone is insufficient to meet the Government’s burden of establishing purity with the required degree of accuracy.

The Court declined to authoritatively determine how much of the meth in a conspiracy must be tested in order to establish purity or even what would constitute a representative sample. This, in fact, may be a difficult issue to sort out given the frequency with which the Government relies on testimony about drug quantities it never actually seizes from defendants.

The Seventh Circuit held that a defendant’s statements and law enforcement expertise alone cannot establish the purity of meth to meet the Government’s burden to prove it is “ice” for Guidelines enhancement purposes.

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Related legal case

United States v. Carnell



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