How to determine drug quantity and purity when drugs were never seized? US v. Houston

Donald Lee Houston pleaded guilty to manufacturing, attempting to manufacture, and aiding and abetting the manufacture of five or more grams of actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Houston now appeals his sentence, arguing the district court clearly erred in finding that he is accountable for more than 50 but less than 150 grams of actual methamphetamine, which resulted in a base offense level of 32. The issue on appeal, one of first impression, is whether the government proved that the methamphetamine quantities Houston admitted he helped manufacture were “actual” methamphetamine quantities, rather than mixture quantities. United States v. Houston, 338 F.3d 876, 878 (8th Cir. 2003)

On this record, we can only conclude that the district court, like the author of the PSR, simply assumed that the quantities Houston admitted to Agent Brugman were actual methamphetamine quantities. We think the assumption unwarranted. When a lay person is asked in general terms how much methamphetamine he helped someone else cook, his answer will almost certainly be in terms of the size of the resulting mixture, not the net weight of one of its components. The quantity itself is supported, but the finding that it was actual methamphetamine is clearly erroneous.

Anton Vialtsin, Esq.
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