Federal Sentencing Drug Purity

In the federal criminal system, a great sentencing lawyer can make all of the difference. With punishment ranges that often go from 10 to life in prison, finding the best federal criminal attorney for your case becomes incredibly important.

One issue that regularly comes up is the issue of drug purity. In United States v. Moore, No. 21-2485 (7th Cir. 2022), the U.S. Court of Appeals for the Seventh Circuit provided a roadmap for federal criminal lawyers looking to contest drug purity findings.

What is drug purity and why does it matter at federal sentencing?

The federal sentencing guidelines establish advisory ranges for judges to use as a starting point in fashioning an appropriate criminal sentence. The federal sentencing guidelines use two general factors (1) the offense conduct and (2) a defendant’s criminal history to produce the advisory sentencing range.

 The purity of drugs found in a federal criminal case can increase the proposed advisory sentencing range significantly. This is particularly true in federal criminal cases involving methamphetamine. If the methamphetamine is found to be “actual” meth also known as “ice” or 100% pure, then the sentencing guideline range becomes much more harsh for a defendant.

Defendant pleads guilty to trafficking methamphetamine

Moore pled guilty to seven counts of violating 21 U.S.C. § 841(a)(1), including one count based on methamphetamine found in Mr. Moore’s home. After Mr. Moore pleaded guilty, a pre-sentence investigation report (PSR) was prepared to help the court determine Mr. Moore’s federal Sentencing Guideline Range. The PSR recommended a base offense level of 30 that rested on a converted drug weight for the 55.6 grams of meth found in Mr. Moore’s house.

The federal sentencing guidelines required the PSR to calculate the amount of “actual” methamphetamine. See U.S.S.G. § 2D1.1(5). The PSR writer consulted a lab report from the DEA which said: 1) the net weight of the meth was 55.6 grams, 2) the amount of pure substance was 55.6 grams, and the meth purity was 100%. This resulted in a proposed base offense level of 30 which produced a guideline range of 130-162 months in prison.

Mr. Moore’s attorney objected to the PSR’s recommended offense level in writing before sentencing. Mr. Moore argued that the government did not have evidence establishing that the reported purity level of 100% was accurate. Moore argued that without better evidence establishing how the purity level was determined, the court should treat the 55.6 grams as a “mixture” containing meth under the federal sentencing guidelines. If the court treated the meth as a “mixture”, Mr. Moore’s base offense level would be cut from 30 to 24; his resulting guideline range would be 77-96 months in prison.

Moore did more: he submitted an expert affidavit

Importantly, Mr. Moore did not just make a legal objection to the PSR drug quantity finding. Instead, Mr. Moore offered an affidavit from a chemist, who explained that exact purity could not be determined with the DEA’s method and the purity level of Mr. Moore’s drugs could be substantially lower than what the DEA report stated.

 The prosecution did not submit any additional evidence in response to the affidavit from Mr. Moore’s chemist. Instead, the government offered legal arguments about why the affidavit was insufficient and that Mr. Moore could have retested the drugs but chose not to do that. The government also argued that the DEA’s testing procedures were well accepted in the scientific community.

 The district court agreed with the government and overruled Mr. Moore’s objections. The court explained that it found the government established the purity level by a preponderance of the evidence so the base offense level was 30. The district court sentenced Mr. Moore to 120 months which was the bottom of the guideline range.

What is required to prove drug purity at federal sentencing hearings?

Mr. Moore appealed to the Seventh Circuit and challenged the purity finding. Facts like drug purity which can raise the guideline range must be established by the government with proof of preponderance of the evidence using only reliable evidence. United States v. Carnell, 972 F.3d 932. 938 (7th Cir. 2020). This is required in part to provide federal criminal defendants with due process of law.

 According to the court of appeals, Mr. Moore’s case was all about reliability. Mr. Moore, like all criminal defendants, had a due-process right to be sentenced based on reliable information. The appellate court agreed with Mr. Moore that the district court committed reversible error in making its purity findings.

 The appellate court stressed that in a particular federal criminal case where a person’s liberty is at stake they are entitled to hold the government to its burden of proof to establish purity by a preponderance of the evidence. Using the DEA lab reports without any testimony or affidavits was simply an “unsupported assumption” according to the court of appeals.

To be clear, it was not enough for Mr. Moore to simply object to the DEA’s purity finding. It was the affidavit of his chemist that met his burden to “furnish some evidence” to call into question the reliability of the purity determination. Producing some evidence is not a high standard, but it requires more than just a bare legal objection. For example, Mr. Moore could have also sought to perform independent testing of the meth, but he was not required to do that.

The court of appeals vacated Mr. Moore’s sentence and remanded his case for a re-sentencing using the lower base offense level for a mixture of meth instead of the pure meth.

Do you have a federal drug purity issue?

In federal sentencing, drug purity findings can mean the difference of years if not decades in prison. You need an experienced lawyer who knows the ins and outs of drug purity objections who can get it right the first time. At Newland Legal, we know how to get the best experts, make the right legal arguments, and put your case together in a compelling way at sentencing.

Only the top federal sentencing attorneys are intimately familiar with the issues involved in fighting drug purity findings in federal court. The federal criminal lawyers at Newland Legal have years of experience of fighting these cases all over the country.

 Do you or your loved one in federal criminal court have a drug purity claim? If so, contact the experienced federal attorneys of Newland Legal at (303) 948-1489 or zach@newlandlegal.com to discuss your case today.