United States v. A. Nevarez-Espino ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1623
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Alfredo Manuel Nevarez-Espino, * [PUBLISHED]
*
Appellant. *
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Submitted: October 18, 2006
Filed: December 27, 2006
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Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Alfredo Manuel Nevarez-Espino pleaded guilty to possession with intent to
distribute in excess of 500 grams of a mixture or substance containing
methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). The District
Court1 sentenced Nevarez to 108 months of imprisonment. Nevarez argues that the
District Court erred in interpreting the sentencing guidelines and requests a remand
for resentencing. We hold that the District Court did not err in its interpretation of the
guidelines.
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
The guidelines provide alternative methods for making a drug-quantity
determination in methamphetamine cases—either the entire weight of the
methamphetamine mixture or the weight of the actual (pure) methamphetamine may
be used. U.S. Sentencing Guidelines Manual § 2D1.1(c) (2005). The guidelines
further instruct: "In the case of a mixture or substance containing . . .
methamphetamine, use the offense level determined by the entire weight of the
mixture or substance, or the offense level determined by the weight of the . . .
methamphetamine (actual), whichever is greater." Id. § 2D1.1(c)(B). Here, the
District Court used the total weight of pure methamphetamine (550.89 grams) in
calculating a total-offense level of 31, which resulted in an advisory range of 108 to
135 months of imprisonment. Nevarez argued for a total-offense level of 27, which
would have resulted in an advisory range of 70 to 87 months of imprisonment, based
on the total weight of the methamphetamine mixture (1,058.9 grams). Nevarez
contends that the District Court erred in interpreting the guidelines to "unambiguously
call for" use of the weight of the pure methamphetamine to determine quantity. Sent.
Tr. at 22.
We review the District Court's interpretation and application of the guidelines
de novo. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005). “When
construing the Guidelines, we look first to the plain language, and where that is
unambiguous we need look no further.” United States v. Bah, 439 F.3d 423, 427 (8th
Cir. 2006) (internal citations and quotations omitted). The District Court's
interpretation of the guidelines was wholly consistent with the Guidelines Manual,
which calls for use of the methamphetamine weight that will yield the greater offense
level. Therefore, we find no error and affirm the District Court.
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