CURTIS L. COLLIER, Chief Judge.
On January 26, 2012, the Court held a sentencing hearing for Defendant Glenn Kamper ("Defendant" or "Kamper"). At that hearing, the Court heard argument from Defendant and the government on Defendant's motion for determination of appropriate marijuana-to-MDMA
The government charged Kamper and six codefendants on January 25, 2011 with conspiracy to distribute MDMA in violation of federal law between October 2009
(Id. at pp. 2-3). According to the Presentence Investigation Report ("PSR") prepared on Kamper, the total quantity of MDMA involved in the conspiracy was 1,218.75 grams (PSR, ¶ 22). Kamper did not object at sentencing to being held responsible for this amount.
Prior to sentencing, Kamper filed two motions. First, he moved for a determination of appropriate marijuana-to-MDMA ratio pursuant to Kimbrough v. United States (Court File No. 162), to which the government responded (Court File No. 167). Second, Kamper moved for a variance under the factors in 18 U.S.C. § 3553
Kamper's motion draws on a broader history of the development of the MDMA-to-marijuana ratio under the United States Sentencing Guidelines ("Guidelines" or "USSG"). Before 2001, the Guidelines established one gram of MDMA as equivalent to thirty-five grams of marijuana. United States Sentencing Commission ("Commission"), Report to Congress: MDMA Drug Offenses, Explanation of Recent Guideline Amendments 6 (2001) ("MDMA Report"). In 2000, however, Congress passed the Ecstasy Anti-Proliferation Act, which directed the Commission to review and increase penalties for
To comply with the Congressional directive, the Commission sought input from a wide range of participants. First, the Commission "began reviewing the available scientific and popular literature on MDMA," and involved the Department of Justice in this process. MDMA Report, p. 3. Second, the Commission heard from DEA officials regarding the trafficking pattern of MDMA and law enforcement challenges associated with the drug. Third, the Commission invited representatives from the National Institute on Drug Abuse ("NIDA") to talk about the health and pharmacological effects associated with MDMA. Moreover, the Commission sought considerable public input. It delayed a vote on the MDMA amendment until after it held its annual public meeting. Additionally, it received "literally hundreds of letters, e-mails, and other written submissions ... from a diverse array of constituents, including clinicians, physicians, psychologists, academic researchers, users, defense attorneys, and other interest groups." Id. at 4.
Having considered input from this wide array of sources, the Commission concluded penalties for MDMA offenses should be more severe than for powder cocaine, which has a 200:1 marijuana equivalency, but less severe than for heroin, which has a 1000:1 marijuana equivalency. Id. at 5. The Commission decided on less severe sentences for MDMA offenses than for heroin because:
Id. The Commission then offered three reasons for imposing higher sentences for MDMA offenses than for powder cocaine: "(1) unlike MDMA, powder cocaine is not neurotoxic, (2) powder cocaine is not aggressively marketed to youth in the same manner as MDMA, and (3) powder cocaine is only a stimulant, but MDMA acts as both a stimulant and a hallucinogen." Id. The Commission ultimately established an MDMA-to-marijuana equivalency ratio of 1:500 grams. Id.
Kamper asks this Court to categorically reject the current 1:500 MDMA-to-marijuana ratio under the Guidelines and replace it with a lower one. In making this request, Kamper in essence asks the Court to step into the shoes of Congress and the Commission and legislate a change to the drug equivalency table under the Guidelines. Were the Court to take this step, it would reach beyond the bounds of the Constitution's vesting of the "judicial Power of the United States" in the federal judicial branch. U.S. Const. art. III, § 1. In upholding the constitutionality of the Sentencing Commission against a separation of powers challenge, the Supreme Court observed "because Congress vested the power to promulgate sentencing guidelines in an independent agency, not a court, there can be no serious argument that Congress combined legislative and judicial power within the Judicial Branch."
Shortly after the United States Supreme Court held the Guidelines advisory in Booker, this Court announced the methodology under which it would impose sentence on a criminal defendant. United States v. Phelps, 366 F.Supp.2d 580 (E.D.Tenn.2005). The Court further explained this methodology in United States v. McElheney, 630 F.Supp.2d 886 (E.D.Tenn.2009), and most recently, in United States v. Rothwell, 847 F.Supp.2d 1048, No. 1:11-CR-72, 2012 WL 953705 (E.D.Tenn. Mar. 21, 2012). In brief, the Court follows a three-step process. First, after resolving any objections to the PSR or any outstanding factual or legal disputes related to a defendant's criminal history or offense of conviction, the Court determines the proper advisory Guidelines range. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ("[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range ....") (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); see also United States v. Bistline, 665 F.3d 758, 761 (6th Cir.2012) ("Although the Sentencing Guidelines are now only advisory, they still `should be the starting point and the initial benchmark' for choosing a defendant's sentence.") (quoting Gall, 552 U.S. at 49, 128 S.Ct. 586). Second, after determining whether, pursuant to the USSG Manual, any departures from the advisory Guideline range apply, USSG ch. 5, pt. K; Phelps, 366 F.Supp.2d at 586, the Court considers whether a departure from the advisory Guideline range is warranted. This second step can also be seen as extension of the first step because "[o]nly after a court has correctly departed upward or downward (if it departs at all) from the initial Guideline range has the court determined the proper advisory Guideline range for sentencing purposes." Rothwell, 847 F.Supp.2d at 1056, 2012 WL 953705, at *5. Finally, taking account of the panoply of considerations under 18 U.S.C. § 3553, the Court imposes an appropriate sentence. When selecting a sentence in this third and final step, the Court conducts an "individualized assessment based on the facts presented," Gall, 552 U.S. at 50, 128 S.Ct. 586, and may then either impose a sentence within the applicable Guideline range (after any clearly applicable departures) if such is consistent with the court's consideration of the § 3553(a) factors, or impose a non-Guideline sentence if such is justified by the § 3553(a) factors, see United States v. Vonner, 516 F.3d 382, 387 (6th Cir.2008) (en banc).
When determining a sentence in this final step, the Court's ultimate objective is to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2). In achieving these purposes, an appropriate consideration for drug trafficking
In May 2011, faced with the same issue currently before this Court, Judge William H. Pauley III became the first federal judge to reject the current 1:500 MDMA-to-marijuana ratio found in the Guidelines. See McCarthy, 2011 WL 1991146, at *1. Both sides in McCarthy offered two expert witnesses who were subject to direct and cross examination, as well as extensive questioning from Judge Pauley. Kamper has submitted the entire 400-page transcript from the two-day evidentiary hearing, and the Court has reviewed it. After permitting each side to submit briefs after the hearing, Judge Pauley issued a nine-page memorandum in May 2011. The court reviewed the scientific and other evidence offered during the two-day hearing, and rejected both McCarthy's position that the proper MDMA-to-marijuana ratio was either 1:1 or 1:35 and the government's position that the current 1:500 ratio was appropriate.
Considering the three factors on which the Sentencing Commission primarily relied in concluding MDMA was more harmful than cocaine — that: 1) MDMA is neurotoxic while cocaine is not; 2) MDMA is aggressively marketed to youth while cocaine is not; and 3) cocaine is only a stimulant, but MDMA acts as both a stimulant and a hallucinogen — the court found these bases no longer entirely supportable, but also not entirely repudiated. Expert opinion differed on whether MDMA is in fact neurotoxic or not. Second, although prevalence of MDMA usage has significantly decreased since the early 2000s, the court found MDMA was indeed uniquely marketed to the younger population. Finally, the court noted "the Commission's statement that cocaine is only a stimulant,
While Judge Pauley noted MDMA's "significant negative impacts," he nonetheless concluded "the Commission's analysis of these impacts — particularly as compared to cocaine — was selective and incomplete." Id. The court noted cocaine is responsible for more emergency room visits than MDMA (even taking into account greater overall usage of cocaine), cocaine is more addictive than MDMA,
Ultimately, the court concluded 1:200 — the same ratio used for cocaine-to-marijuana — was the appropriate MDMA-to-marijuana ratio. Although the court found the scientific and other evidence indicated several ways in which MDMA was less harmful than cocaine, the court was cognizant that "MDMA also presents in own unique dangers." Id. In a footnote, the court observed "much of the evidence indicates that MDMA is less harmful than cocaine, suggesting that an even lower equivalency may be appropriate given a sufficient factual foundation in a later case." Id. at *4 n. 2.
In both their written submissions and orally at the sentencing hearing, Kamper and the government advanced a number of arguments. Kamper filed a 25-page motion urging the Court to reject the current MDMA-to-marijuana ratio of 1:500, and instead use a ratio of 1:1, or, in the alternative, return to the 1:35 ratio in place prior to the Commission's 2001 amendment to the current ratio. The government advocated the Court retain the current 1:500 MDMA-to marijuana ratio.
Most of the arguments Kamper offers are drawn directly from the evidence reviewed by Judge Pauley in the McCarthy evidentiary hearing. First, Kamper contends the current MDMA-to-marijuana ratio lacks an empirical basis because it relies on now-discredited science. Specifically, he asserts the Commission's MDMA Report based its scientific findings on studies rife with methodological errors, including inadequate controls, inappropriate dosage levels,
The government opposes Kamper's motion. Although the government seeks to discredit both Kamper's arguments and the McCarthy decision, it devotes most of its brief to attacking the latter. Indeed, the government in its written submission does not offer a significant challenge to the scientific evidence — most, although not all, of which suggests the Commission relied on faulty MDMA studies — cited by Kamper.
Finally, the government reminds the Court under Kimbrough, "the fact that a district court may disagree with a Guideline for policy reasons and may reject the Guidelines range because of that disagreement does not mean that the court must disagree with that Guideline or that it must reject the Guidelines range if it disagrees." United States v. Brooks, 628 F.3d 791, 800 (6th Cir.2011) (emphasis in original).
Although sympathetic to Kamper's underlying claim that the scientific support justifying the current 1:500 MDMA-to-marijuana ratio has eroded significantly since the Commission adopted it in 2001, the Court declined his invitation at sentencing to follow Judge Pauley in McCarthy by categorically rejecting that ratio and categorically adopting its own. The Court did so because it understands its primary responsibility to be the exercise of judicial power under Article III of the Constitution through adjudication of the cases before it, which does not generally
Kimbrough did not alter this fundamental structural principle. Read broadly, Kimbrough authorizes a federal district court judge to reject a policy judgment by the Commission. Even this broad reading, however, is consistent with the long-standing power of the courts to strike down a law. See Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803) (establishing judicial review of legislative acts). The harder question, not answered until Spears, was whether a court could affirmatively legislate a new crack-to-powder ratio. Spears provides courts with the incidental power to replace a categorically rejected ratio for the purpose of correctly calculating a defendant's Guideline range. Thus, under Kimbrough and Spears, a court must not only decide to categorically reject a ratio, it must also categorically adopt a new one.
Instead of the reject-and-replace approach Kamper advocates, this Court will apply its three-step sentencing process in a manner consistent with its role as an adjudicative — not a legislative — entity.
Moreover, this approach does not amount to "institutionalized subterfuge." Spears, 555 U.S. at 266, 129 S.Ct. 840. The Supreme Court in Spears wanted to avoid a situation where a district court judge categorically disagrees with a Guideline but instead of forthrightly expressing that disagreement, couched its disagreement in terms of an "individualized assessment" that conveniently always produced a non-Guideline variance. Such an approach would be deeply flawed because it would not alert the Commission to the policy disagreement and the perceived underlying problem with the Guideline provision, would not allow for sentencing transparency, would not permit proper appellate review, and would be at heart dishonest. This concern does not apply here, however, because the Court has no categorical disagreement with the MDMA-to-marijuana ratio. Thus, while the Court may find reason to vary outside the advisory Guideline range for some MDMA defendants, it may well sentence within the Guideline range for others.
Finally, the process described above avoids a troubling administrative problem inherent in Kamper's reject-and-replace approach. Federal law provides for 677 district court judgeships. See 28 U.S.C. § 133. Under Kamper's approach, every single one of these judges could reject the MDMA-to-marijuana ratio under the Guidelines and replace that ratio. There could then theoretically be 677 different MDMA-to-marijuana ratios: one judge may decide to keep 1:500; another judge would determine 1:200 is appropriate; a third judge would set the ratio at 1:32.5; and so on. This approach would almost certainly produce the kind of unwarranted sentencing disparities § 3553 attempts to avoid. See § 3553(a)(7). A sentence for an MDMA defendant would be based not on the facts and law of each case, but on the ratio employed by the particular sentencing judge, where even different judges in the same courthouse could rely on different ratios. In the face of such a haphazard process, the public would rightfully lose respect for the courts.
Thus, the Court concludes its role as an adjudicative body counsels in favor of denying Kamper's motion to categorically reject the MDMA-to-marijuana ratio and legislate a new one. The authority under Kimbrough and Spears to reject and adopt a Guideline provision on policy grounds is best limited to the unique situation at issue
Even if Kimbrough and Spears permit a district court judge to reject a drug equivalency ratio in USSG § 2D1.1 on policy grounds and substitute a new ratio for the rejected one, the Court would not exercise that power here. As a general matter, these cases do not invite district court judges to use this power lightly. See also Bistline, 665 F.3d at 764 ("[W]hen a guideline comes bristling with Congress's own empirical and value judgments-or even just value judgments-the district court that seeks to disagree with the guideline on policy grounds faces a considerably more formidable task than the district court did in Kimbrough.").
The Court's recognition of the institutional strengths (and limitations) of Congress and the Commission as measured against its own is not a new point. Shortly after Booker rendered the Guidelines advisory, this Court acknowledged "it is neither the purpose nor the province of the federal judiciary to gather evidence, hear testimony, and come to conclusions" about certain matters within the sentencing context. Phelps, 366 F.Supp.2d at 588. Simply put, the Court is not equipped to undertake the type of research and inquiry required to make an informed judgment about the scientific and other evidence at issue in determining a proper MDMA-to-marijuana ratio. Congress established the Commission to engage first in detailed factfinding and then to promulgate the Guidelines as part of its rulemaking power. Mistretta, 488 U.S. at 394-95, 109 S.Ct. 647 (noting the Congress "vested the power to promulgate sentencing guidelines in an independent agency, not a court," and that the Commission wields "rulemaking power and not the adjudicatory power exercised by individual judges when passing sentences"). Although Booker makes clear individual courts have the power to reject the Guidelines, neither Booker nor its progeny unsettles the structural commitment of the Commission as the leading policymaker on national sentencing issues implicating empirical questions. Kimbrough, 552 U.S. at 108-09, 128 S.Ct. 558 ("Carrying out its charge, the Commission fills an important institutional role: It has the capacity courts lack to `base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.'") (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir.2007) (McConnell, J., concurring)). Because determination of a proper MDMA-to-marijuana ratio under the Guidelines is a national question and implicates empirical research, the Court believes the Commission and its staff is far better suited to conduct the necessary
The Commission and Congress are better placed to determine the appropriate MDMA-to-marijuana ratio not only because such an inquiry involves empirical questions of national magnitude, but also because such a determination requires value judgments concerning the relative harm of a controlled substance. This Court has expressed particular reticence about second-guessing the gradations in punishment reflected in Congressional judgments that
Phelps, 366 F.Supp.2d at 589. As counsel for Kamper admitted at the sentencing hearing, the relative harm caused by MDMA — as compared to marijuana, cocaine, heroin, or any other controlled substance — is a subjective inquiry. Determining the harmfulness of a given controlled substance will depend on when and to what extent the effects of a substance are felt by a given individual, how long those effects last, whether the long-term or short-term effects prove more (or less) pernicious, and how to calibrate these and other inquiries into a series of metrics. By its nature, the question of harm involves non-scientific value judgments, and the Court concludes such judgments at a systematic level are best left to Congress and the Commission. Cf. Bistline, 665 F.3d at 764.
In asking this Court to reject the current 1:500 MDMA-to-marijuana ratio in favor of a lower one, Kamper relies heavily on Kimbrough v. United States.
Second, the Commission itself had come to the conclusion the crack-to-powder ratio should be amended, and had then long — but unsuccessfully — sought to have that ratio decreased. Indeed, in multiple reports spanning a number of years, the Commission criticized the crack-to-powder disparity as unwarranted. Kimbrough, 552 U.S. at 97-98, 128 S.Ct. 558. With regard to the MDMA-to-marijuana ratio, the Commission does not appear to have studied the issue, nor been asked to, since producing the MDMA Report in 2001. Thus, when Judge Jackson in Kimbrough rejected the crack-to-powder ratio, his policy disagreement squared with the Commission's own research and recommendations. Here, by contrast, a judge can find no support in the Commission's work to reject the MDMA-to-marijuana ratio. While this fact alone does not constrain a district court from rejecting the ratio, the absence of any significant study of this issue by the Commission since 2001 counsels caution.
The absence of significant study of a proper MDMA-to-marijuana ratio poses an additional challenge. Enabling the Commission's conclusion that the crack-to-powder disparity under the Guidelines was unwarranted was, inter alia, extensive statistical analysis the Commission performs on a quarterly basis. The Commission's statistical work is invaluable to district court judges. Indeed, statistical analysis of variances granted in child pornography cases has helped this Court determine the proper amount of deference owed to USSG § 2G2.2. See McElheney, 630 F.Supp.2d at 894-95 (relying on Commission statistics to determine "the Guidelines are no longer descriptive of national sentencing practices when more then half of all child pornography defendants are being sentenced outside the advisory Guidelines range"). At the sentencing hearing, neither counsel for Kamper nor the government were able to produce statistics on non-Guideline sentences under U.S.SG § 2D1.1 for offenses involving MDMA. If, as with child pornography, courts were imposing non-Guideline sentences on MDMA defendants in more than fifty percent of cases,
For the reasons discussed above, the Court denied Defendant's motion for determination of appropriate marijuana-to-MDMA ratio pursuant to Kimbrough v. United States (Court File No. 162).
