United States v. McQueen ( 1998 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50691
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RONNIE LYNN MCQUEEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(W-97-CR-020-2)
April 21, 1998
Before WISDOM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Ronnie McQueen pleaded guilty to conspiracy to possess with
intent to distribute somewhat over 300 grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Though the sentencing
guidelines prescribed a prison term of 46-57 months, the district
court sentenced McQueen to the mandatory 120-month minimum sentence
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
prescribed by § 841 for certain quantities of methamphetamine.2 On
direct appeal, McQueen argues that his sentence must be vacated
because (1) the “100 grams or more of methamphetamine” that trigger
the statutory minimum sentence refer only to that quantity of pure
methamphetamine, and (2) the district court did not make sufficient
findings as to the purity of the methamphetamine attributable to
him. McQueen’s argument is persuasive. We therefore vacate his
sentence and remand the cause to the district court for
resentencing.
We have held that the “100 grams or more of methamphetamine”
language of § 841(b)(1)(A)(viii) refers only to pure
methamphetamine.3 We have further held that a district court may
impose the statutory minimum sentence only if the government
presents evidence from which it might be reasonably inferred that
the total amount of methamphetamine attributable to a defendant
“had a sufficient percentage of purity so as to contain at least
100 grams of pure methamphetamine.”4
In the case at bar, the government did not adduce evidence
sufficient to permit the district court to find, by a preponderance
2
Section 841(b)(1)(A)(viii) provides that in cases “involving
100 grams or more of methamphetamine, its salts, isomers, and salts
of its isomers or one kilogram or more of a mixture or substance
containing a detectable amount of methamphetamine, its salts,
isomers, or salts of its isomers, [the defendant] shall be
sentenced to a term of imprisonment which may not be less than 10
years or more than life.”
3
United States v. Kinder, 946 F.2d 362, 367-68 and n. 2 (5th
Cir. 1991).
4
United States v. Myers, No. 94-50423, slip op. at 4 (5th
Cir. March 28, 1995) (unpublished).
2
of the evidence,5 that the methamphetamine attributable to Cruz
contained at least 100 grams of pure methamphetamine. The record
merely demonstrated that Cruz and his coconspirators were
distributing methamphetamine of high quality. Without more, we
cannot agree with the government’s contention that the district
court properly inferred that the defendants distributed at least
100 grams of pure methamphetamine.6
We remand to the district court to permit the government to
present evidence from which it might be reasonably inferred that
the total amount of methamphetamine attributable to McQueen was
sufficiently pure as to contain at least 100 grams of pure
methamphetamine. Only if the government meets its burden may the
district court reimpose the statutory minimum sentence of 120
months.
VACATED AND REMANDED.
5
United States v. Bogusz, 43 F.3d 82, 87 (5th Cir. 1994).
6
In fact, the district court incorrectly stated at McQueen’s
sentencing hearing that “purity is not relevant.”
3