FILED
                                                                       United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                        Tenth Circuit

                               FOR THE TENTH CIRCUIT                       September 14, 2020
                           _________________________________
                                                                           Christopher M. Wolpert
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                           No. 19-3003
                                                   (D.C. No. 5:17-CR-40111-DDC-1)
 ADAM WAYNE PURVIS,                                            (D. Kan.)

          Defendant - Appellant.
                         _________________________________

                               ORDER AND JUDGMENT *
                           _________________________________

Before LUCERO, HOLMES, and EID, Circuit Judges.
                  _________________________________

      Defendant Adam Wayne Purvis pleaded guilty to possession with intent to

distribute methamphetamine. At sentencing, Purvis sought a four-level downward

variance based on his argument that the methamphetamine Sentencing Guideline was

overly punitive. The district court denied Purvis’s request. On appeal, Purvis

contends that the district court erred because it failed to recognize that it had the

authority to vary downwards from the methamphetamine Sentencing Guideline. We

conclude that the district court understood its discretion to vary downwards and

affirm.



      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      On May 29, 2018, Purvis pleaded guilty to possession with intent to distribute

50 grams or more of methamphetamine. The Presentence Investigation Report set

Purvis’s base offense level at 36 due to his possession of between 1.5 and 4.5

kilograms of “ice” methamphetamine. Following a three-level reduction for

acceptance of responsibility, Purvis was assigned an advisory Sentencing Guidelines

range of 188 to 235 months’ imprisonment.

      Purvis then filed a supplemental sentencing memorandum requesting a four-

level downward variance based on his argument that the methamphetamine Guideline

was overly punitive. Purvis’s memorandum incorporated the arguments made by the

defendant in United States v. Rodriguez-Chavarria (D. Kan. Case No. 17-40121-01-

DDC). He asserted that methamphetamine should not be sentenced more harshly

than crack cocaine because crack is more dangerous to users and society. Both

Congress’s mandatory minimum laws and the Sentencing Guidelines punish

methamphetamine approximately 5.5 times more harshly than crack. 18 U.S.C.

§ 2D1.1(c); 21 U.S.C. § 841.

      The district court denied Purvis’s request for a downward variance. 1 It stated

that Purvis’s arguments “can’t provide a basis to displace policy decisions that

Congress has made and that the Sentencing Commission has based on them.” ROA




      1
       Despite this denial, Purvis still received a below-Guidelines sentence of 142
months due to the government’s recommendation.
                                           2
Vol. II at 79. As an explanation for its decision, the district court cited to its analysis

of the same arguments in United States v. Rodriguez-Chavarria.

       The district court’s analysis began by explaining what it believed was the basis

for the Sentencing Guidelines’ graduated scale of punishment for different drugs.

The district court disagreed with Purvis’s claim that the basis for the Guidelines

punishment scale was the harmfulness of each drug. Instead, the court explained that

the Guidelines created punishments in proportion to the mandatory minimum

provisions set by Congress. ROA Supp. at 14 (“The . . . Sentencing Commission

took the mandatory minimum provisions . . . and made them proportionately

applicable to every drug trafficking offense.”).

       The district court then emphasized that Congress acted to increase

methamphetamine penalties four times between 1988 and 1999. The court also noted

that in 1990, when Congress reduced the mandatory minimum quantities for crack, it

left the quantities for methamphetamine unchanged.

       Finally, the district court concluded that it was unconvinced by Purvis’s

argument that methamphetamine should be punished more leniently than crack

because methamphetamine is less harmful to users and society. The district court

stated, “when I’m forced to choose . . . between my own assessment of empirical data

about various drugs’ relative harm and the judgment made by members of Congress,

I choose the latter. That’s consistent with my view of the courts in our system of

government . . . .”

–20.



                                             3
      On appeal, Purvis contends that the district court erred because it failed to

recognize that it had the authority to vary downwards from the methamphetamine

Sentencing Guideline. We disagree.

                                          II.

      We review a criminal defendant’s sentence for both procedural and substantive

reasonableness. United States v. Lewis, 

, 1231 (10th Cir. 2010). 2 In

this case, Purvis raises only a procedural-reasonableness challenge. A sentence is

procedurally unreasonable if the district court “fail[s] to calculate (or improperly

calculate[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to

consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts,

or fail[s] to adequately explain the chosen sentence.”

United

States, 

, 51 (2007)).

      To avoid procedural error in drug-trafficking cases, district courts must

“recognize that they have the authority to vary downward” from the Sentencing

Guidelines based on a policy disagreement with them.

see also Spears v.

United States, 

, 264 (2009). Generally, because the Sentencing

Guidelines were developed using an empirical approach based on past sentencing

data, a district court’s authority to vary from the Guidelines is strongest when the

court’s decision is based on the circumstances of an individual case and weakest



      2
         In Dorsey v. United States, 

(2012), the Supreme Court ruled
that the Fair Sentencing Act’s lower mandatory minimums apply to the post-Act
sentencing of pre-Act offenders, indirectly overruling Lewis on that issue only.
                                            4
when the court’s decision is based on a categorical policy disagreement with the

Guidelines. 

; Kimbrough v. United States, 

, 96

(2007). But the Guidelines for drug-trafficking offenses are not based on this

empirical approach. 

. Consequently, a district court’s

variance based on a categorical policy disagreement with the drug-trafficking

Guidelines “is not suspect.” 

. While a district court is not

required to vary from the Guidelines in a drug-trafficking case, it must understand

that it has the authority to do so. 

, 1232.

      We review the procedural reasonableness of a sentence for abuse of discretion.

United States v. Gieswein, 

, 1058 (10th Cir. 2018). In doing so, we

review factual findings for clear error and legal determinations de novo. United

States v. Lopez-Avila, 

, 1218–19 (10th Cir. 2011). Here, Purvis argues

that he properly raised his argument below and that therefore his challenge should be

reviewed de novo as an error of law under Lopez-Avila. The United States argues

that plain error review applies because Purvis failed to raise his argument in district

court. See United States v. Tena-Arana, 738 F. App’x 954, 958–61 (10th Cir. 2018)

(unpublished) (distinguishing Lopez-Avila and applying plain error). 3 We need not

decide which standard of review is appropriate, however, because Purvis’s argument

fails under any standard. See United States v. Browning, 

, 1158 (10th

Cir. 2001).


      3
        We cite this case for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                            5
                                           III.

       Purvis asserts that the district court committed a procedural error at sentencing

because it failed to understand that it had the authority to vary downwards from the

methamphetamine Sentencing Guideline. We reject Purvis’s argument because the

district court understood its authority to vary downwards.

       As support for his argument, Purvis points mainly to two statements made by

the district court. First, the district court concluded that Purvis’s arguments “can’t

provide a basis to displace policy decisions that Congress has made and that the

Sentencing Commission has based on them.” ROA Vol. II at 79. Second, the district

court stated, “when I’m forced to choose . . . between my own assessment of

empirical data about various drugs’ relative harm and the judgment made by

members of Congress, I choose the latter. That’s consistent with my view of the

courts in our system of government, and in particular the role that the courts play in

that system.” ROA Supp. at 19–20. When these statements are viewed in the context

of the district court’s entire analysis, however, they do not indicate that the district

court failed to understand its authority to vary downwards from the

methamphetamine Sentencing Guideline.

       Although the district court ultimately rejected Purvis’s argument that

methamphetamine should be sentenced more leniently than crack cocaine because

crack is more dangerous to users and society, the district court did not reject Purvis’s

argument because it believed that it lacked the authority to vary downwards. The

district court’s analysis began by explaining what it believed was the basis for the

                                             6
Sentencing Guidelines’ graduated scale of punishment for different drugs. The

district court disagreed with Purvis’s claim that the basis for the Guidelines’

punishment scale was the harmfulness of each drug. Instead, the court explained that

the Guidelines created punishments in proportion to the mandatory minimum

provisions set by Congress.

(“The . . . Sentencing Commission took the

mandatory minimum provisions . . . and made them proportionately applicable to

every drug trafficking offense.”).

      As a result, the district court found Purvis’s arguments unconvincing because

they relied on the false premise that the Sentencing Guidelines were mainly

concerned with punishing drug crimes in accordance with each drug’s harmfulness.

Because the district court believed that the actual basis for the Guidelines was

Congress’s mandatory minimum provisions, it decided not to vary downwards based

on Purvis’s argument about which drug is more harmful.

(“[B]ased on that

premise, the defendant argues that the Sentencing Commission just isn’t very good at

gauging the relative harmfulness of various drugs . . . . My conclusion is that the

Sentencing Commission engaged in a qualitatively different endeavor . . . .”).

Instead, the district court chose to impose a sentence based on what it believed was

the actual basis for the Guidelines—“the judgment made by members of Congress”

when they set the mandatory minimum penalties.

court’s

analysis indicates that it understood its authority to vary downwards but chose not to

do so because it was unconvinced by Purvis’s argument.



                                           7
       Although Purvis contends that certain statements made by the district court

demonstrate its failure to understand its authority to vary downwards, we interpret

the district court’s statements in light of its entire analysis. See United States v.

Kamper, 

, 742–43 (6th Cir. 2014) (concluding the district court’s

analysis showed that it “actually believed” it lacked the authority to vary downwards

even though it explicitly stated that it had discretion to do so). Furthermore, the

district court’s statements cited by Purvis do not indicate that the district court

misunderstood its authority.

       For example, the district court concluded that Purvis’s arguments “can’t

provide a basis to displace policy decisions that Congress has made and that the

Sentencing Commission has based on them.” ROA Vol. II at 79. But this conclusion

could have meant that the district court believed Purvis’s arguments “can’t provide a

basis” to vary downwards simply because the court decided that they were

unconvincing. Indeed, if the district court had concluded that Purvis’s arguments

were unavailing solely because it lacked the authority to vary downwards, the district

court likely would not have provided such a detailed analysis in response to Purvis’s

arguments. See ROA Supp. at 12–20.

       Purvis also cites to the district court’s comment that when “forced to choose

. . . between my own assessment of empirical data about various drugs’ relative harm

and the judgment made by members of Congress, I choose the latter. That’s

consistent with my view of the courts in our system of government, and in particular

the role that the courts play in that system.”

–20. In this statement, the

                                             8
district court indicated that it had a choice but that it chose to defer to Congress’s

judgment rather than to base Purvis’s sentence on its own assessment of the

harmfulness of various drugs. Even though the district court commented that this

decision was “consistent with [its] view of the courts in our system,” that does not

demonstrate that the district court had relinquished its authority to vary downwards.

is distinguishable from the statements made by

district courts in cases where they were found to have misunderstood their authority

to vary downwards. In those cases, the district courts ceded their authority to

Congress more explicitly. E.g., Moore v. United States, 

, 2 (2008) (“I’m

applying the law as it currently stands. If that is going to be changed, that is a

congressional matter. Congress is the one who looks at the guidelines and decides

whether or not they should be put . . . in force . . . . It isn’t the judges.”); 

(“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.”); United States v. Tabor, 

, 690 (8th

Cir. 2008) (“As a judge, I should defer to the choice of penalties that Congress has

made for crack cocaine even though I would quickly do something different if it were

within my proper role to choose.”).

       Finally, in United States v. Lewis, we held that the district court understood its

authority to vary downwards when it made comments like those made by the district

                                             9
court here about the proper role of courts in our system of 

. In Lewis, the district court declined to vary downwards. It explained that “the

law right now is not that [the crack/cocaine disparity] should be one to one” and

“[u]ntil congress actually acts, the court would consider the law that’s presently in

effect.”

(first alteration in original). Like the district court in Lewis, the

district court here preferred to impose a sentence based on the Sentencing Guidelines

rather than its own assessment of the harmfulness of various drugs. Accordingly, the

district court did not misunderstand its authority to vary downwards. See

(“[T]he district court has no obligation to duplicate the efforts of the Sentencing

Commission or Congress and decide what guidelines policy it would impose if it

were the sole decision-maker.”). Although the district court in this case did not

explicitly state that it had “the right to issue a variance” as the district court did in

Lewis

the district court here still analyzed Purvis’s arguments and

considered varying downwards.




                                             10
                                         IV.

      Because the district court understood that it had the authority to vary

downwards from the methamphetamine Sentencing Guideline, we AFFIRM the

district court’s judgment. Appellant’s unopposed motion to supplement the record,

which was provisionally granted on 7/24/2019, is hereby granted.




                                           Entered for the Court


                                           Allison H. Eid
                                           Circuit Judge




                                          11