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UNITED STATES v. JAMES

August 2, 1995

United States of America, Respondent-Plaintiff,
v.
Allen J. James, Petitioner-Defendant.



The opinion of the court was delivered by: RHOADES

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

 This matter comes before the Court on Petitioner Allen J. James' motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed by this Court. For the reasons given below, Petitioner's motion is DENIED.

 I. Background

 On December 19, 1990, a federal grand jury returned a one-count indictment charging Petitioner James with possession with intent to distribute approximately one and one-half pounds of methamphetamine, in violation of 21 U.S.C. § 841 (a)(1). On June 21, 1991, pursuant to a plea agreement, Petitioner pled guilty to a superseding bill of information charging Petitioner with possession with intent to distribute approximately 437 grams of a mixture containing methamphetamine. On September 23, 1991, this Court sentenced Petitioner to 78 months in custody and four years supervised release.

 On February 16, 1993, Petitioner filed a petition for modification of imposed term of imprisonment. The District Court filed an order denying the requested relief on February 19, 1993. Petitioner filed a notice of appeal on March 22, 1993. The Court of Appeals affirmed the District Court's order on January 11, 1994.

 On February 27, 1995, Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On March 2, 1995, this Court ordered the Government to show cause why Petitioner's § 2255 motion should not be granted. The Government filed a response and opposition to Petitioner's motion on April 4, 1995. Petitioner filed a traverse to the Government's response on April 17, 1995.

 On April 18, 1995, Petitioner filed a motion for bail pending a decision on the § 2255 motion, and this Court ordered the Government to show cause why Petitioner should not be released on bail. The Government filed a response and opposition to Petitioner's motion for bail on April 23, 1995. Petitioner filed a traverse to the Government's response on May 15, 1995.

 On May 22, 1995, this Court ordered further briefing and denied Petitioner's motion for bail. The Government filed further response and opposition to Petitioner's motion on June 2, 1995. Petitioner filed a traverse to the Government's further response on June 21, 1995, and his own supplemental briefing on June 27, 1995.

 II. Discussion

 Petitioner James asks this Court to vacate his sentence on the ground of ineffective assistance of counsel. Petitioner contends that his counsel failed to require the Government to prove that the methamphetamine involved in Petitioner's offense was d-methamphetamine and not l-methamphetamine. Petitioner further contends that his counsel's deficient performance prejudiced the defense because this Court arbitrarily calculated Petitioner's sentence under the United States Sentencing Guidelines based on generic "methamphetamine," which produced a higher base offense level and thus a longer sentence than if the sentence had been calculated on l-methamphetamine. *fn1"

 Methamphetamine exists in at least two forms, d-methamphetamine and 1-methamphetamine. *fn2" D-methamphetamine and l-methamphetamine are both isomers of methamphetamine, that is, they consist of identical molecules differently arranged. United States v. Bogusz, 43 F.3d 82, 88-89 (3d Cir. 1994), cert. denied sub nom. O'Rourke v. United States, 115 S. Ct. 1812 (1995). The Drug Quantity Table of section 2D1.1 of the Sentencing Guidelines does not differentiate among the types of methamphetamine. The Drug Equivalency Table, however, specifies different marijuana equivalencies for l-methamphetamine and generic methamphetamine. *fn3" Because l-methamphetamine is "grossly different" from other forms of methamphetamine in that l-methamphetamine "produces little or no physiological effect when ingested," the Sentencing Guidelines treat l-methamphetamine far less severely. *fn4" United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995), quoting Bogusz, 43 F.3d at 89.

 The term "methamphetamine" is often used generically in indictments, plea bargains, and in the presentation of evidence at trial. Evidence regarding generic "methamphetamine" at trial will not affect conviction because the Government only needs to establish the involvement of methamphetamine--not the type of methamphetamine--to prove guilt under the relevant narcotics statutes. United States v. Deninno, 29 F.3d 572, 579-80 (10th Cir. 1994), cert. denied, 130 L. Ed. 2d 1081, 115 S. Ct. 1117 (1995).

 At sentencing, however, the distinction between d-methamphetamine and l-methamphetamine becomes relevant because of a dramatic difference in sentencing ranges under the Sentencing Guidelines. Without specific evidence at trial or detailed provisions in a plea agreement, use of the word "methamphetamine" may leave open the question of whether the drug involved was d-methamphetamine or l-methamphetamine.

 The Government generally bears the burden at sentencing to prove by a preponderance of the evidence the type of methamphetamine involved in a drug offense. United States v. Bogusz, 43 F.3d 82, 91 (3d Cir. 1994); United States v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994); United States v. Patrick, 983 F.2d 206, 208 (11th Cir.), reh'g denied, 986 F.2d 505 (1993). However, the Government is only required to shoulder its burden of proof if the defendant raises the issue of methamphetamine type at trial or at the sentencing hearing. United States v. Acklen, 47 F.3d 739, 742 n.4 (5th Cir. 1995) ("The government bears the burden of proving that the substance involved was [d-] methamphetamine only after the defense has raised the issue at sentencing."); United States v. Koonce, 884 F.2d 349, 353 (8th Cir. 1989) (government has no obligation to prove that ...


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