United States v. Godinez-Perez

Filing

[10431325] Remanded. Terminated on the merits after oral hearing. Written, signed, published. Judges Tymkovich, Briscoe (authoring) and Murphy. Mandate to issue. [15-3159]

FILED
Appellate Case: 15-3159

Document: 01019739534

United States Court of Appeals
Date Filed: 12/22/2016 Circuit 1
Tenth Page:

December 22, 2016
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

No. 15-3159

EMANUEL GODINEZ-PEREZ,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 2:14-CR-20066-JAR-1)

Melody Brannon, Federal Public Defender, District of Kansas, Topeka, Kansas,
for Defendant-Appellant.
Carrie N. Capwell, Assistant United States Attorney, (Barry R. Grissom, United
States Attorney, with her on the brief), Kansas City, Kansas, for PlaintiffAppellee.

Before TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Emanuel Godinez-Perez (Godinez) pleaded guilty to three
criminal counts arising out of his role in a conspiracy to distribute and possess
with intent to distribute more than 500 grams of methamphetamine. The district

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court sentenced Godinez to a term of imprisonment of 108 months, to be followed
by a two-year term of supervised release. Godinez now appeals his sentence.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Godinez that
the district court erred in calculating his base offense level and, in turn, his
advisory Guidelines sentencing range. Specifically, the court erred in failing to
make particularized findings regarding relevant conduct attributable to Godinez.
Consequently, we remand to the district court with directions to vacate Godinez’s
sentence and resentence him.
I
A
In June and July of 2014, law enforcement agents from the Kansas Bureau
of Investigation (KBI) and the United States Department of Homeland SecurityHomeland Security Investigations (HSI) used a confidential informant (CI) to
make two controlled purchases of methamphetamine from an individual named
“Manuel” in Kansas City, Kansas. Law enforcement agents ultimately determined
that “Manuel” was Godinez and they arrested him, along with Jose MeneraAlvarez and Gilbert Cano-Bahena, both of whom were involved with Godinez in
the distribution of the methamphetamine. During the course of the investigation,
law enforcement agents seized ten different quantities of methamphetamine,
totaling approximately 1,505.26 grams. Laboratory testing revealed that these
quantities of methamphetamine ranged in purity from 96.1% to 100%. Based
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upon these purity figures, the net weight of the methamphetamine was estimated
to be 1,479.8 grams.
B
On July 25, 2014, a criminal complaint was filed charging Godinez,
Menera-Alvarez, and Cano-Bahena with conspiracy to distribute and possess with
intent to distribute 500 grams or more of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, and 18 U.S.C. § 2, and possession with
the intent to distribute 50 grams or more of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), 846, and 18 U.S.C. § 2. The complaint also
alleged two separate counts of distribution solely against Godinez. On August 6,
2014, a federal grand jury returned an indictment setting forth the same four
charges.
On January 22, 2015, Godinez appeared before the district court and
entered a plea of guilty, without benefit of a plea agreement, to the charges
against him. The district court directed the probation office to prepare a
presentence investigation report (PSR).
On April 27, 2015, the probation office submitted the PSR to the district
court and the parties. The PSR concluded that Godinez’s “offense involv[ed] at
least 1.5 kilograms but less than 4.5 kilograms of ‘Ice’” (high-grade
methamphetamine), and thus assigned Godinez a base offense level of 36,
pursuant to U.S.S.G. § 2D1.1. ROA, Vol. 3 at 13. The PSR in turn applied a
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two-level reduction pursuant to the safety-valve provision of U.S.S.G. §
2D1.1(b)(17), as well as two-level and one-level reductions pursuant to U.S.S.G.
§ 3E1.1(a) and (b), all of which resulted in a total offense level of 31. That total
offense level, combined with the calculated criminal history category of I,
resulted in an advisory Guidelines sentencing range of 108 to 135 months.
Neither party filed objections to the PSR.
Godinez did, however, file a sentencing memorandum asking the district
court “to sentence him to less than 60 months in the Bureau of Prisons.” Id., Vol.
1 at 36. In support of his request, Godinez argued that he was “clearly the
LEAST culpable of the three” defendants in the case because the other two were
suppliers and Godinez “only had direct or indirect control over 601.57 of the
1505.39 grams of methamphetamine that comprise[d] his drug quantity
calculation.” Id. at 36, 38. More specifically, Godinez argued that “601.57 grams
[we]re a result of actual sales by” him, and that “887.25 grams [we]re a result of
the execution of a search warrant on a storage unit that did not belong to [him],”
and was not “under his control.” Id. at 37.
Godinez also argued in his sentencing memorandum that “[t]here [we]re
more general reasons to consider a variance for [him].” Id. To begin with, he
argued that “the methamphetamine guideline lacks empirical support,” id., and
“penalize[s] methamphetamine much, much more severely than any other drug,”
id. at 41. Second, Godinez argued that “the unique focus on methamphetamine
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purity in [§] 2D1.1 further undermines the goals of [18 U.S.C. §] 3553(a).” Id. at
42. “For example,” he argued, his “base offense level would have been 32 instead
of 36 had the drug quantity been calculated as a mixture.” Id. And, he argued,
that would have “result[ed] in a sentence range of 70-87 months absent the
differential calculation for drug purity.” Id. Lastly, Godinez argued that his case
was treated differently than other criminal prosecutions in the District of Kansas
because the probation office in his case calculated the amount at issue “as ‘Ice’”
even though the “actual amount [wa]s available.” Id. at 45.
On June 29, 2015, Godinez appeared before the district court for
sentencing. The district court, again without objections from either party,
adopted the PSR’s sentencing calculations. Defense counsel asked the district
court to vary downward from the advisory Guidelines sentencing range and
impose a term of imprisonment of no greater than 60 months. The district court
denied Godinez’s request and sentenced him to 108 months’ imprisonment, to be
followed by a two-year term of supervised release.
Judgment was entered in the case that same day. Godinez filed a timely
notice of appeal and challenges only his sentence.
II
Determination of relevant conduct - drug quantity
In his first issue, Godinez complains that “the district court made no
particularized findings on the record about the relevant conduct attributable to
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[him] individually, but instead held him responsible for the entirety” of the
methamphetamine that was seized by law enforcement officials. Aplt. Br. at 8.
Because Godinez did not raise this specific argument in the district court, our
review is limited to plain error under Federal Rule of Criminal Procedure 52(b). 1
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). We “ha[ve]
discretion to remedy a forfeited error provided certain conditions are met.” Id.
The defendant must establish (1) the existence of “an error that has not been
intentionally relinquished or abandoned,” (2) “the error [is] plain—that is to say,
clear or obvious,” and (3) “the error . . . ha[s] affected the defendant’s substantial
rights.” Id. “Once these three conditions have been met, the court of appeals
should exercise its discretion to correct the forfeited error if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.
(quotation marks omitted).
Godinez argues that the district court in this case was required to “make
particularized findings about relevant conduct—here, the drug quantity and
type—attributable to the defendant, rather than just default to the overall
conspiracy.” Aplt. Br. at 10-11. Godinez further argues that “the PSR failed to

1

As we have noted, Godinez hinted at the issue in his sentencing
memorandum by arguing that the 887.25 grams of methamphetamine that were
seized as “a result of the execution of a search warrant on a storage unit did not
belong to [him], nor [were those narcotics] under his control.” ROA, Vol. 1 at
37. Ultimately, however, Godinez failed to object to the drug quantity
calculations set forth in the PSR and adopted by the district court.
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offer any particularized findings about individual relevant conduct,” and the
district court in turn “made no findings particular to the scope of [Godinez’s]
agreement, either as to quantity or type of methamphetamine.” Id. at 11. And, he
argues, “[t]he record does not support that [he] agreed to jointly undertake the
distribution of more than 1.5 kilograms of [I]ce.” Id.
Section 1B1.3 of the United States Sentencing Guidelines, which addresses
relevant conduct for purposes of sentencing, states that a defendant’s base offense
level “shall be determined on the basis of . . . all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured or willfully caused by
the defendant,” as well as, “in the case of a jointly undertaken criminal activity
. . . , all acts and omissions of others that were . . . within the scope of the jointly
undertaken criminal activity, . . . in furtherance of that criminal activity, and
. . . reasonably foreseeable in connection with that criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(A) and (B). “This includes any controlled substance that was
handled by another member of the conspiracy if it was ‘(A) in furtherance of the
jointly undertaken criminal activity; and (B) reasonably foreseeable in connection
with that criminal activity.’” United States v. Figueroa-Labrada, 720 F.3d 1258,
1265 (10th Cir. 2013) (quoting U.S.S.G. § 1B1.3, cmt. n.2).
Application Note 3(B) to § 1B1.3 states that “[b]ecause a count may be
worded broadly and include the conduct of many participants over a period of
time, the scope of the ‘jointly undertaken criminal activity’ is not necessarily the
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same as the scope of the entire conspiracy, and hence relevant conduct is not
necessarily the same for every participant.” U.S.S.G. § 1B1.3, cmt. n.3(B).
Application Note 3(B) further states that “[i]n order to determine the defendant’s
accountability for the conduct of others under subsection (a)(1)(B), the [district]
court must first determine the scope of the criminal activity the particular
defendant agreed to jointly undertake (i.e., the scope of the specific conduct and
objectives embraced by the defendant’s agreement).” Id. Consistent with this
Application Note, we have held that “[a] sentencing court must make
particularized findings to support the attribution of a coconspirator’s actions to
the defendant as relevant conduct, whether or not the defendant asks it to do so or
disputes the attribution.” Figueroa-Labrada, 720 F.3d at 1264. In other words,
even if the defendant does not lodge any objections to the PSR, the district court
must still make these particularized findings. Id.
In this case, the district court adopted the factual findings contained in the
PSR and otherwise made no independent factual findings of its own at the time of
sentencing. Unfortunately, however, the factual findings contained in the PSR
and adopted by the district court did not address the scope of the criminal activity
that Godinez agreed to jointly undertake. Nor did the PSR’s factual findings
otherwise include information specifically linking Godinez to all of the quantities

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of methamphetamine that were seized during the investigation. 2 Consequently,
we conclude, and government counsel essentially agreed at oral argument, that the
district court erred in failing to make such findings, and that its error was plain in
light of existing Tenth Circuit precedent.
The question then becomes whether the district court’s error affected
Godinez’s substantial rights. To address this question, we begin by reviewing the
allegations set forth in the charges that are encompassed by Godinez’s guilty plea.
Count 1 of the indictment in this case alleged that “[b]eginning on or about June
16, 2014, and continuing until July 16, 2014,” Godinez and his two codefendants
“knowingly and intentionally combined, conspired, and agreed . . . to distribute
and possess with intent to distribute more than 500 grams of a mixture and
substance containing a detectable amount of methamphetamine.” ROA, Vol. 1 at
24. Count 2 of the indictment alleged that “[o]n or about June 17, 2014,”
Godinez “knowingly and intentionally distributed 50 grams or more of a mixture
and substance containing a detectable amount of methamphetamine.” Id. at 25.
Count 3 of the indictment alleged that “[o]n or about July 9, 2014,” Godinez
“knowingly and intentionally distributed 50 grams or more of a mixture and

2

In its appellate response brief, the government notes that the PSR contains
the statement that “the defendant is accountable for 1.505 kilograms of ‘Ice.’”
Aplee. Br. at 6 (quoting ROA, Vol. 3 at 12 (PSR at ¶ 31)). But this was not an
independent, particularized finding. At no point does the PSR differentiate
between the drugs attributable to the conspiracy as a whole and those attributable
to Godinez individually.
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substance containing a detectable amount of methamphetamine.” Id. Lastly,
Count 4 alleged that “[o]n or about July 16, 2014,” Godinez and his two
codefendants, “aiding and abetting each other, knowingly and intentionally
possessed with intent to distribute 50 grams or more of a mixture and substance
containing a detectable amount of methamphetamine.” Id.
In his petition to enter a plea of guilty, Godinez admitted all of these
allegations. By doing so, Godinez admitted to distributing or possessing with
intent to distribute 650 grams or more of methamphetamine. That amount greatly
exceeds the specific amounts that he personally distributed to the CI on June 17
and July 9, 2014 (those two transactions totaled 172.2 grams). Thus, Godinez
effectively admitted that additional amounts of methamphetamine in his
possession or the possession of his codefendants, totaling approximately 478
grams or more, were attributable to him. But it does not account for all of the
methamphetamine that was attributed to him by the PSR and, in turn, the district
court.
At the plea hearing, the district court asked government counsel to recite
the factual basis for the plea. In response, government counsel discussed the
specific seizures of methamphetamine that occurred during the course of the
investigation of Godinez and his codefendants. These seizures, which were
subsequently listed in the PSR’s factual findings, included the following:

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Date/Occurrence
Weight of Meth Mixture Weight of Actual Meth
6/17/14 Controlled Buy Bag 1 - 27.79 grams
27.3 grams
Bag 2 - 28.12 grams
27.9 grams
7/9/14 Controlled Buy

Bag 1 - 54.85 grams
Bag 2 - 54.67 grams

52.8 grams
52.9 grams

7/9/14 Storage Unit
Search

Crystals - 9.32 grams
Bag 1 - 321.57 grams
Bag 2 - 375.47 grams
Bag 3 - 180.9 grams

9.3 grams
318.2 grams
374.8 grams
180.8 grams

7/16/14 Search of
Vehicle

436 grams

419.3 grams

7/16/14 Search of
Apartment

16.57 grams

16.5 grams

TOTALS

1,505.26 grams

1,479.8 grams

Id., Vol. 3 at 12.
A portion of this methamphetamine was unquestionably attributable to
Godinez. To begin with, the methamphetamine that was seized following the two
controlled buys was attributable to Godinez because it is undisputed that he was
the one who directly sold the methamphetamine to the CI. Similarly, the 436
grams of methamphetamine that were seized from a vehicle on July 16, 2014,
were attributable to Godinez because they were the result of a one-pound
methamphetamine transaction that he had verbally negotiated with the CI that day
but had not yet consummated, and because the vehicle from which the
methamphetamine was seized was owned by Godinez. To be sure, codefendant
Cano-Bahena was actually driving the vehicle at the time the methamphetamine
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was seized. But the record indicates that Cano-Bahena was acting as Godinez’s
supplier for that transaction. Lastly, the 16.57 grams of methamphetamine that
were seized from Cano-Bahena’s apartment later that same day also are
reasonably attributable to the conspiracy outlined in the indictment. More
specifically, the district court could have reasonably found that Cano-Bahena, in
connection with the conspiracy, directly possessed this methamphetamine with the
intent to distribute it. The district court also could have reasonably found that
Godinez, in turn, constructively possessed the same methamphetamine for the
same purpose. Together, these amounts total 618 grams of methamphetamine
mixture or 596.7 grams of actual methamphetamine.
The more difficult question concerns the 887.26 grams of
methamphetamine mixture that were seized from the storage unit on July 9, 2014.
The events that led to the search of the storage unit and the seizure of the
methamphetamine are described as follows in the PSR:
13.

On July 9, 2014, agents utilized the CI to make a controlled
purchase of four ounces of methamphetamine for $3,600 from
Godinez-Perez in Kansas City, Kansas. The CI contacted
Godinez-Perez by calling cellular phone number (816) 719XXXX. During the call, Godinez-Perez told the CI that he was
still at work and would not be able to meet with [the CI] until
around 6:30 p.m.

14.

Agents were conducting surveillance at XXX Central Avenue,
Kansas City, Kansas, when they observed three Hispanic males
leaving the apartments and driving away in a Chevrolet
Trailblazer bearing Kansas license plate 201 XXX [and
registered to Godinez]. Agents with HSI and KBI followed the
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Trailblazer to a gas station in Gardner, Kansas. The Hispanic
males exited the Trailblazer and were observed making phone
calls on their cellular phones. A few minutes later the
Hispanic males were observed driving away from the gas
station and were followed to the Price Chopper in Gardner,
Kansas and seen parking in the parking lot. A short time later,
a black Jeep Patriot bearing Kansas license plate 826 XXX was
observed slowly driving past the Trailblazer. The Trailblazer
was seen backing out of the parking stall and following the
Jeep Patriot to an apartment complex on East Lincoln Street in
Gardner, Kansas. Four Hispanic males were observed standing
near the vehicles[,] which were parked in front of one of the
apartments.
15.

Agents checked the registration of the Jeep Patriot Kansas[,]
license plate 826 XXX[,] and found it was for a 2014 Jeep
Patriot registered to Sandra Patricia XXXXXXX of Gardner,
Kansas.

16.

A few minutes later, agents observed the Chevrolet Trailblazer
and Jeep Patriot leaving the apartment complex and driving to
the Central Self Storage facility located at 1702 Kansas City
Road in Olathe, Kansas. Agents observed the Hispanic males
entering Unit 17[D]. After being at the storage unit for several
minutes, both vehicles were observed leaving the facility.

17.

Agents followed the Chevrolet Trailblazer back to Central
Avenue in Kansas City, Kansas[;] the Jeep Patriot was
observed heading back towards Gardner, Kansas[,] and
surveillance was discontinued.

18.

The CI received a phone call from Godinez-Perez indicating
that he was ready to meet at the same location as before. The
CI met with Godinez-Perez in a seafood restaurant parking lot
located near 12th and Central Avenue, Kansas City, Kansas.
The CI purchased four ounces of methamphetamine from
Godinez-Perez for $3,600. During the meeting Godinez-Perez
quoted the CI prices for pound and kilogram quantities of
methamphetamine. A field test . . . showed a presumptive
positive result for the presence of methamphetamine, weighing
56.9 and 57 grams per bag.
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19.

Agents contacted the Olathe Police Department, which agreed
to use a K-9 drug detection unit to conduct an open air sniff on
the Central Self Storage Units, 1702 Kansas City Road, Olathe,
Kansas. The certified K-9 alerted only on storage unit 17D
after sniffing several other units in the facility.

20.

A search warrant was obtained for Central Self Storage Unit
17D from Johnson County, Kansas District Court. During the
search of storage unit 17D, agents seized plastic bags
containing 762.03 and 217.72 grams of methamphetamine.
They also seized 517.09 grams of marijuana, digital scales and
packaging material.

Id., Vol. 3 at 9-10. The PSR contains no other mention of the storage unit. Thus,
although the information contained in the PSR would have allowed the district
court to reasonably infer that the 109.52 grams of methamphetamine distributed
by Godinez to the CI on July 9, 2014, originated from the storage unit, it was
insufficient to allow the district court to determine who directly or constructively
possessed the 887.26 grams of methamphetamine that were seized later that day
by law enforcement officers during the search of the storage unit.
In an attempt to connect Godinez with the 887.26 grams of
methamphetamine seized from the storage unit, the government notes that it was
Godinez and Cano-Bahena who traveled from Kansas City, Kansas, to the storage
unit on July 9, 2014, and obtained the 113.9 grams of methamphetamine that
Godinez distributed to the CI later that day. Although the government is correct

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on this point, 3 the government fails to acknowledge a key fact that is set forth in
the PSR. Godinez and Cano-Bahena did not drive directly from the apartment to
the storage unit, but instead made three intervening stops: at a gas station where
they made a series of telephone calls, then at a grocery store where they were met
by a Jeep Patriot, and finally at an apartment complex where they met with an
unidentified Hispanic male who apparently had been driving the Jeep Patriot.
Only after making those three stops did Godinez and Cano-Bahena drive to the
storage unit, accompanied again by the unidentified Hispanic male driving the
Jeep Patriot. All of which suggests that the storage unit may not have been
owned, rented, or otherwise controlled by Godinez or a coconspirator, whether or
not indicted. 4 In other words, the limited evidence contained in the record on
appeal is not so one-sided that the district court would have had no choice but to
attribute to Godinez, as part of the conspiracy to which he pled guilty, the 887.26
grams of methamphetamine that were stored in and seized from the storage unit.
Consequently, the record, which lacks particularized findings by the district
court, does not reasonably foreclose the possibility that the 887.26 grams of

3

As noted, the PSR states only that “three Hispanic males” traveled in
Godinez’s vehicle from Kansas City, Kansas, to the storage unit, and does not
otherwise identify those individuals. Id. In his sentencing memorandum,
however, Godinez essentially conceded that he and Cano-Bahena were two of
those individuals.
4

Both in its brief and at oral argument, the government failed to identify
the owner of the storage unit.
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methamphetamine that were stored in and seized from the storage unit were not
“within the scope of the criminal activity that [Godinez] jointly undertook,” and
thus were not attributable to him. Figueroa-Labrada, 720 F.3d at 1265.
We in turn conclude that Godinez’s substantial rights were impacted by the
district court’s error. The PSR assigned Godinez a base offense level of 36,
noting that U.S.S.G. § 2D1.1 “provides that an offense involving at least 1.5
kilograms but less than 4.5 kilograms of ‘Ice’ has a base offense level of 36.” Id.,
Vol. 3 at 13. Had the PSR omitted from its relevant conduct determination the
methamphetamine that was seized from the storage unit, Godinez’s base offense
level would have been reduced to 34 (the same base offense level that would have
applied had the PSR relied solely on Godinez’s admissions when he pleaded
guilty). That in turn would have resulted in a total offense level of 29, and an
advisory Guidelines sentencing range of 87 to 108 months, far different than the
108–to–135–month advisory Guidelines range calculated by the district court.
Thus, in sum, it is apparent that the district court’s error resulted in an
“erroneous, and higher, Guidelines range [that] set the wrong framework for the
sentencing proceedings.” Molina-Martinez, 136 S. Ct. at 1345. Consistent with
the Supreme Court’s holding in Molina-Martinez, we conclude that this is
sufficient to establish “a reasonable probability of a different outcome absent the
error.” Id.; see id. at 1346 (“In most cases a defendant who has shown that the
district court mistakenly deemed applicable an incorrect, higher Guidelines range
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has demonstrated a reasonable probability of a different outcome.”). In other
words, nothing in the record in this case indicates that the district court “based
the sentence [it] selected on factors independent of the Guidelines,” and “the
record is [also] silent as to what the district court might have done had it
considered the correct Guidelines range.” Id. at 1347.
We are left only with the question of whether the district court’s error
seriously affects the fairness, integrity or public reputation of judicial
proceedings. We have adopted a presumption that this question must be answered
in the affirmative whenever a defendant has established that an unobjected-to
sentencing error affects his substantial rights. See United States v. SabillonUmana, 772 F.3d 1328, 1333 (10th Cir. 2014) (“[A]n obvious misapplication of
the sentencing guidelines will usually satisfy the third and fourth elements of the
plain error test.”). Because Godinez has established that the district court’s error
in this case affected his substantial rights, the presumption thus applies.
Although we have also held that this presumption can be overcome in certain
instances, we conclude that “[t]his case . . . falls within the heartland of the
presumption, not any exception.” Id. at 1334. The sentence imposed by the
district court—108 months—was at the very bottom of the incorrectly-calculated
advisory Guidelines range, and nothing in the record indicates that the district
court selected this sentence independently from the advisory Guidelines range.
Further, as we have explained, the bottom of the correctly-calculated advisory
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Guidelines range would have been 21 months lower than the sentence that was
imposed by the district court. Thus, a very real possibility exists that, absent the
district court’s error, it would have imposed a substantially lower sentence.
For these reasons, we conclude that the case must be remanded to the
district court with directions to vacate Godinez’s sentence and resentence him.
Before doing so, however, we proceed in the interests of judicial economy to
review the remaining challenges posed by Godinez on appeal.
Determination of relevant conduct - drug type
As part of his first issue, Godinez argues that the district court also erred in
calculating his advisory Guidelines range on the basis of Ice, rather than on the
basis of a methamphetamine mixture. In support, Godinez asserts that “he
admitted and was convicted of trafficking in a mixture or substance containing a
detectable amount of methamphetamine.” Aplt. Br. at 14. Nevertheless, he
asserts, the district court performed its sentencing calculations on the basis of Ice.
Section 2D1.1 of the Sentencing Guidelines defines the term “Ice” as “a
mixture or substance containing d methamphetamine hydrochloride of at least
80% purity.” U.S.S.G. § 2D1.1, Notes to Drug Quantity Table, n.(C). It also
provides that “[i]f a mixture of substance contains more than one controlled
substance, the weight of the entire mixture of substance is assigned to the
controlled substance that results in the greater offense level.” Id., Notes to Drug
Quantity Table, n.(A).
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The PSR in this case, and in turn the district court, properly recognized and
applied these principles. In outlining Godinez’s offense conduct, the PSR
included a table that listed the quantity (both “Net Weight of Methamphetamine
Mixture” and “Net Weight/Actual Methamphetamine”) and purity of each seizure
of methamphetamine that occurred during the course of the investigation.
Together, the total net weight of the methamphetamine mixture was 1,505.26
grams and the net weight/actual methamphetamine, which took into account the
purity of the various quantities seized, was 1,479.8 grams. ROA, Vol. 3 at 12.
The PSR in turn treated this total amount as Ice, explaining:
Since the methamphetamine mixture is over 80% pure, it is
considered “Ice” for the purposes of the guideline. USSG §2D1.1
Note to Drug Quantity Table (C). Note to Drug Quantity Table (A)
indicates that the weight of a controlled substance set forth in the
table refers to the entire weight of any mixture or substance
containing a detectable amount of the controlled substance. If a
mixture or substance contains more than one controlled substance,
the weight of the entire mixture or substance is assigned to the
controlled substance that results in the greater offense level.
Therefore, the defendant is accountable for 1.505 kilograms of “Ice.”
Id. Godinez did not object to this or any other portion of the PSR. Consequently,
the district court adopted these findings and determination as its own. Godinez
fails to establish that this was error, let alone plain error, on the part of the
district court.
Denial of downward variance - empirical basis for drug-related Guidelines
Godinez also argues that the district court “relied on a demonstrably wrong

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premise to deny [his] request for a below-guideline variance.” Aplt. Br. at 9. We
review for an abuse of discretion a district court’s decision not to grant a
downward variance. United States v. Franklin-El, 554 F.3d 903, 914 (10th Cir.
2009); United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008) (“[W]hether
any . . . disparity justifies a sentencing variance in a given case raises a . . .
question . . . of substantive reasonableness,” which we review for an abuse of
discretion).
In the sentencing memorandum that he filed with the district court, Godinez
argued that the Sentencing Commission did not use an “empirical approach in
developing the Guidelines for drug-trafficking offenses,” and instead “employed
the 1986 Act’s weight-driven scheme.” ROA, Vol. 1 at 41 (quoting Kimbrough v.
United States, 552 U.S. 85, 96 (2007)). Godinez in turn argued that he was
entitled to a downward variance because “[t]he result of th[e] [Sentencing
Commission’s] approach, unmoored from empirical evidence or careful study,
[wa]s to penalize methamphetamine much, much more severely than any other
drug.” Id. At the sentencing hearing, the district court stated on the record: “I
think the [G]uidelines are the product of empirical research and ongoing empirical
study and, while not perfect, the focus on quantity and purity of drugs does speak
to a number of factors that are relevant when one considers one’s relative
culpability, vis-à-vis the culpability of defendants across the nation.” Id., Vol. 2
at 50. Godinez now argues on appeal that the district court’s statement was
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contrary to Kimbrough and constituted reversible error.
The government argues in response that the district court’s statement was
not erroneous because this court has expressly recognized that “the Sentencing
Commission based the drug quantities and conversion rates provided in § 2D1.1
on Congressional directives and appropriate reliance on experts and practitioners
in the field.” Aplee. Br. at 34 (emphasis added) (quoting United States v. Kort,
440 F. App’x 678, 683 (10th Cir. 2011)). But “reliance on experts and
practitioners in the field” is not necessarily empirical evidence. Instead,
empirical evidence is that which is “[b]ased on, concerned with, or verifiable by
observation or experience rather than theory or pure logic.” Empirical Evidence,
Oxford Dictionaries Online (2016), http://www.oxforddictionaries.com/us/
definition/american_english/empirical. Thus, in the sentencing context, empirical
evidence would be that “derived from the review of . . . individual sentencing
decisions.” Gall v. United States, 552 U.S. 38, 46 (2007). Perhaps the “experts
and practitioners” that the Sentencing Commission sought guidance from
themselves relied on their own review of individual sentencing decisions; but that
much is not clear from our decision in Kort. Thus, contrary to the government’s
assertions, our decision in Kort does not support the district court’s statements in
this case.
The fact of the matter is that, in large part, “the Guidelines are . . . the
product of careful study based on extensive empirical evidence derived from the
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review of thousands of individual sentencing decisions.” Id.; see U.S.S.G. ch. 1,
pt. A1, § 3 (discussing how the Sentencing Commission took an “an empirical
approach that used as a starting point data estimating pre-guidelines sentencing
practice”). But “not all of the Guidelines are tied to this empirical evidence.”
Gall, 552 U.S. at 46 n.2. “For example,” the Court noted, “the Sentencing
Commission departed from the empirical approach when setting the Guidelines
range for drug offenses, and chose instead to key the Guidelines to the statutory
mandatory minimum sentences that Congress established for such crimes.” Id.
(citing U.S.S.G. § 1A1.1 (Nov. 2006)).
Returning to the district court’s challenged statement, it is unclear whether
its reference to “the [G]uidelines [being] the product of empirical research and
ongoing empirical study” was intended to refer to all of the Guidelines, including
§ 2D1.1 and its drug quantity table, or whether, instead, it was intended as a
general reference to most of the Guidelines. Thus, it is simply unclear whether
the district court’s statement was erroneous or not.
Assuming, for purposes of argument, that the district court’s statement was
intended to refer to all of the Guidelines and was thus erroneous, the question
becomes whether that erroneous statement had any impact on the district court’s
decision to deny Godinez’s request for a downward variance. The district court
expressly noted at the time it made the challenged statement that it was
“rejecting” Godinez’s request for a downward variance to the extent it was based
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on Godinez’s “arguments that pertain[ed] to the [S]entencing [G]uidelines
themselves and the [G]uidelines[’] focus on the purity of the drug.” ROA, Vol. 2
at 50. The district court explained:
[W]hile not perfect, the [Guidelines’] focus on quantity and purity of
drugs does speak to a number of factors that are relevant when one
considers one’s relative culpability, vis-á-vis the culpability of
defendants across the nation. For example, the pure—the more pure
the drug, the closer to the source. The quantity of the drug, you
know, is a direct reflection of the size of the organization or at least
the complexity or the opportunity that organization has to distribute
large quantities of drugs.
The [G]uidelines view some organization or person that is able to
deal in large quantity– quantities of drugs, of course, having more
significant and adverse effect on the community than one that deals
in small amounts and only has access to small amounts. And as the
government argued, the facts in this case illustrate that Mr. Godinez,
as well as his co-defendants, were able to—to deal in sizable
quantities of drugs, at least in the pound quantities, if not the
kilogram quantities, and were willing to start, you know, two, four
ounces of methamphetamine at a time. And the methamphetamine
was almost pure, 98 percent. All of which, of course, suggests that
they are players in an organization that is a significant organization
and has access to big quantities of drugs and pure quantities of drugs
relatively close to the ultimate source of the methamphetamine.
Id. at 50-51. Nothing about this statement is erroneous, and Godinez does not
suggest otherwise. Nor does Godinez argue that the district court abused its
discretion in concluding that the amount and purity of the methamphetamine
involved in this case was relevant for purposes of determining Godinez’s relative
role in the conspiracy at issue.

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III
The case is REMANDED to the district court with directions to VACATE
Godinez’s sentence and resentence him.

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