Why Federal Sentences for Distributing Methamphetamine are Disproportionately Longer Than for Cocaine or Heroin, and What Can Be Done About It

It would probably surprise most people to learn that, in practice, in many federal courts, a sentence for distributing 1.7 kilos of methamphetamine will be about the same as if the defendant had distributed 450 kilos of cocaine or 90 kilos of heroin.  Why is methamphetamine treated as SO much more serious than cocaine or heroin? There are two main reasons. Both have to do with the Federal Sentencing Guidelines, which recommend a range of months in prison, depending on the crime and the defendant’s criminal history, and both have to do with the Guidelines’ outdated approach to meth.

First, the Federal Sentencing Guidelines for methamphetamine are based on outdated assumptions.  Fifteen years ago, most methamphetamine in the United States was made by local “cooks” who made meth in their own “labs” from ingredients like pseudoephedrine from cold tablets, red phosphorous from matches, and other household chemicals.  The meth they made was of low purity and quality. Federal and state governments reacted by making it much harder for the cooks to get things like the large quantities of cold tablets they needed to cook their meth. This drove up the price, and gave Mexican cartels a profitable market opportunity.  Now, most meth comes from “superlabs” in Mexico, which churn out large quantities of very pure meth at lower prices. In effect, they have pushed the “mom and pop meth labs” out of business.

Unlike cocaine and heroin, the Federal Sentencing Guidelines for meth consider the quantity of “a mixture and substance containing” meth, and “actual” meth.  A given quantity of “actual” meth is considered the same, for sentencing purposes, as ten times that amount of a “mixture and substance.” For example, the Federal Sentencing Guidelines consider 1.5 kilos of a mixture and substance containing meth to be about the same as 15 kilos of “actual” meth.  This made more sense in the old days, when meth was of low purity. These days, meth coming from Mexico is almost always over 90% pure, and it is not uncommon to see levels of 98%. All law enforcement has to do is send seized meth off to a lab for testing to determine its purity.

To determine the amount of “actual” meth in a mixture or substance containing meth, you multiply the amount of the mixture times the purity.  If the purity is 92%, for example, and the quantity is one kilo, the amount of actual meth is 1 * 92% = 920 grams.

Now, let’s see how a mixture and substance containing meth that is 1.7 kilos and 92% pure (fairly typical) works out compared to cocaine and heroin under the Federal Sentencing Guidelines.  1.7 kilos * 92% = 1.56 kilos of “actual” meth. Compare that quantity to cocaine and heroin:

Between 1.5-4.5 kilos of actual meth is treated the same as 150-450 kilos of cocaine, or 30-90 kilos of heroin.  Under section 2D1.1(c), of the Federal Sentencing Guidelines, each of these ranges results in a Base Offense Level of 36.  Without any other adjustments, and assuming no criminal history, this results in a recommended sentencing range of 188-235 months (15 years and 8 months to 19 years and 7 months).

But there’s more.  The Federal Sentencing Guidelines include an addition of two Offense Level Points if the defendant’s offense involved importing methamphetamine.  There is not a comparable provision for imported cocaine or heroin, though.

Many judges (incorrectly, in my view) treat this provision as meaning that if the methamphetamine was ever imported, no matter how far removed from the defendant’s conduct and regardless of whether the defendant knew it was imported or had anything to do with the importing.  I believe these two extra points were meant for people who actually had something to do with importing meth, not just for someone who distributes meth that was imported at some unknown time in the past by some unknown people, but many judges do not treat it this way.

It is fairly accepted among most courts that evidence of high purity is enough, by itself, to show that meth was imported.  This is because meth made in the United States tends to be of such low quality and purity. So, for many judges, all that is needed for an extra two points on a defendant’s Offense Level is proof of high purity.  

Since most meth these days is imported, when judges treat the importation enhancement as meaning nothing more than that the meth was imported, then almost every meth case will include this two-point increase, even though there is no similar increase for cocaine or heroin.

Going back to our example, if someone is responsible for 1.7 kilos of meth that is 92% pure, the purity alone will be enough for some judges to add two points for presumed importation.  This takes the Offense Level from 36 to 38. Level 38 is the same as 450 kilos or more of cocaine and 90 kilos or more of heroin. The recommended sentence for a level 38, with no other adjustments and no criminal history, is 235-293 months (19 years and 7 months to 24 years and 5 months).    

Therefore, in many courts, in practice, 1.7 kilos of meth is roughly equivalent to 450 kilos of cocaine or 90 kilos of heroin.

What can be done about this?  In addition to strategies that may work in any kind of drug case, such as cooperating with the government in order to get a sentence reduction or arguing that the “safety valve” provision applies, there are some meth-specific strategies that criminal defense lawyers should consider.   First, object to the enhancement for importation unless the defendant was personally involved in the importing of the meth. I have briefed this issue, and there are powerful arguments in favor of it. Second, ask the court for a downward variance based on how the Sentencing Guidelines treat meth in an outdated way, both as to the mixture/actual distinction and as to the importation enhancement.

Any federal drug case involves complicated issues and the interplay of the applicable Federal Sentencing Guidelines.  If you or a loved one is accused of a federal drug crime, you should hire an experienced federal criminal defense lawyer who is not only skilled in trial, but who is also an expert in federal criminal sentencing.