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UNITED STATES v. JAMES

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA


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 methamphetamine is d-methamphetamine, its commonly understood type, until the defense raises the possibility that "methamphetamine" means l-methamphetamine). *fn5"

 Petitioner points out that the Government failed to prove at sentencing whether Petitioner possessed l-methamphetamine or d-methamphetamine. Since Petitioner never raised the issue of methamphetamine type during the guilty plea hearing or at sentencing, however, the Government never had to carry the burden of proof as to methamphetamine type.

 Petitioner argues that he was denied effective assistance of counsel precisely because his attorney did not require the Government to carry its burden of proof regarding the type of methamphetamine involved in Petitioner's offense. Petitioner argues that prejudice to the defense resulted from counsel's failure when this Court arbitrarily determined Petitioner's sentence under the Sentencing Guidelines' base offense level for the more harshly punished generic methamphetamine rather than l-methamphetamine.

 A petitioner who claims ineffective assistance of counsel has a heavy burden. Counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). See also United States v. Hamilton, 792 F.2d 837, 839 (9th Cir. 1986) (review of counsel's performance is highly deferential and courts indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance).

 Generally, to prevail on a claim of ineffective assistance of counsel, Petitioner must show that: (1) his attorney's performance was unreasonable under prevailing professional standards, and (2) that there is "a reasonable probability that but for counsel's unprofessional errors, the result would have been different." United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (citing Strickland, 466 U.S. at 687-91, 694).

 First, Petitioner has not shown that counsel's failure to require the Government to prove that the methamphetamine involved was d-methamphetamine was unreasonable under prevailing professional standards. The Drug Quantity Table in § 2D1.1 of the Sentencing Guidelines specifies base offense levels for offenses involving "methamphetamine." Petitioner pleaded guilty to possession of a mixture containing "methamphetamine" with intent to distribute. No party to the case so much as mentioned "l-methamphetamine." The Government, the defense, and this Court all reasonably concluded that the Sentencing Guidelines' base offense levels for methamphetamine should be used to calculate Petitioner's sentence.

 As Petitioner accurately points out, defense counsel did not insist that the Government prove that the methamphetamine involved in Petitioner's offense was d-methamphetamine rather than l-methamphetamine. Experience in literally hundreds of cases involving methamphetamine, however, compels this Court to point out that no defense counsel in any of those cases ever attempted to require the Government to prove type of methamphetamine either at trial or at sentencing. Subsequent to Petitioner's sentencing, case law has illuminated the Sentencing Guidelines' differentiation between l-methamphetamine and other types of methamphetamine. Nevertheless, "we do not look at counsel's performance through the distorting lenses of hindsight, but rather examine counsel's performance according to what was reasonable at the time." Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989), vacated on other grounds, 113 S. Ct. 367 (1992). This Court finds that counsel's performance was reasonable under prevailing professional standards.

 Second, Petitioner has not established a "reasonable probability" that the result of his sentencing would have been different had counsel required the Government to prove the type of methamphetamine involved in Petitioner's offense. Petitioner would only be able show that he would have received a lesser sentence by proving that the substance involved in his offense was indeed l-methamphetamine.

 Petitioner submitted an affidavit to this Court enumerating for the first time the reasons for his belief that the drug involved in the offense was l-methamphetamine. Petitioner states, "I used [the drugs] and they proved not to be very good. It took more of them to achieve my normal 'high.'" Petitioner may have attempted to prove too much. As discussed above, l-methamphetamine is differentiated from d-methamphetamine in the Sentencing Guidelines because l-methamphetamine has "little or no physiological effect." Bogusz, 43 F.3d at 89. That Petitioner was able to achieve his "normal high," albeit by ingesting a greater amount of methamphetamine than usual, tends to show that Petitioner did not in fact possess l-methamphetamine.

 Petitioner also states in his affidavit that his supplier said the drugs were being produced in Mexico by recycling "Vicks" inhalers. Petitioner asserts that he saw Vicks inhalers in the trunk of his supplier's car and that the supplier asked Petitioner for assistance in obtaining more inhalers. Finally, Petitioner states his belief that Vicks inhalers do not contain d-methamphetamine.

 The Government submitted an affidavit by Forensic Chemist Joanne M. Katz of the Drug Enforcement Agency, which addressed the subject of Vicks inhalers, inter alia:

 

I have never encountered nor do I know of any incidence of the clandestine manufacture of l-methamphetamine . . . nor have I encountered a laboratory that involved the extraction of l-methamphetamine from Vicks inhalers. Examination of all methamphetamine exhibits analyzed in the last ten years at the DEA Southwest Laboratory shows d-methamphetamine or d,l-methamphetamine only. No exhibits of methamphetamine were determined to be in the form of l-methamphetamine. While it is possible to manufacture l-methamphetamine, it is not probable.

 

Government's Resp. and Opp'n Ex. 4 Katz Aff.

 Petitioner correctly observes that Katz's affidavit would be insufficient at sentencing to carry the Government's burden of proving that Petitioner possessed d-methamphetamine. That ship has sailed, however. The burden of proof is now on the Petitioner to show a reasonable probability that the result of his sentencing would have been different because he possessed l-methamphetamine. After careful consideration of the assertions and credibility of each affidavit, this Court finds that Petitioner has not established a reasonable probability that the substance involved in his offense was l-methamphetamine rather than d-methamphetamine. Consequently, Petitioner has not shown a reasonable probability that but for counsel's failure to require the Government to prove methamphetamine type, the result of Petitioner's sentencing would have been different.

 III. Conclusion

 Petitioner James has not satisfied the heavy burden of showing ineffective assistance of counsel. Petitioner's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 is DENIED.

 IT IS SO ORDERED.

 Date: 8/2/95

 JOHN S. RHOADES, SR.

 UNITED STATES DISTRICT JUDGE


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