Eighth Circuit Says Cops Don't Have to Test the Ice

By Robyn Hagan Cain on January 11, 2013 | Last updated on March 21, 2019

Juan Daniel Lugo pleaded guilty to conspiring to manufacture, distribute, and possess methamphetamine and marijuana with intent to distribute. The district court sentenced him to a prison term of 240 months. Lugo later challenged his sentence based on the government's failure to test the substance for which he was sentenced.

So was it "ice" or some knock-off meth-mix? According to the Eighth Circuit Court of Appeals, it doesn't matter.

Lugo's presentence report (PSR) recommended a total offense level of 39, based on a base offense level of 38 for the quantity of drugs, a 4-level increase for Lugo's aggravating role as the leader and organizer of the conspiracy, and a 3-level reduction for Lugo's acceptance of responsibility.

At his sentencing hearing, Lugo objected to the PSR on several grounds, suggesting that the meth in his case was mischaracterized as "actual" methamphetamine (a mixture or substance containing d-methamphetamine hydrochloride of at least 80 percent purity, also known as "ice") as opposed to a substandard meth slushy. The district court -- acknowledging the often difficult task of determining drug quantity -- reduced Lugo's base offense level from 38 to 36, just to be safe. In explaining its decision, the court referred to the drugs in question as ice.

Lugo subsequently appealed the sentence, arguing that the district court clearly erred in finding that the drug involved in the conspiracy was "ice" and not a mixture containing methamphetamine.

The Eighth Circuit wasn't sympathetic to Lugo's arguments. The appellate court found that the district court didn't clearly err in sentencing Lugo on the basis of "ice" methamphetamine, despite the government's failure to test whether the seized methamphetamine was, in fact, "ice."

The appellate court based its decision on its ruling in U.S. v. Walker as well as the flexible Guidelines approach to sentencing.

(In Walker, the court agreed that a sentencing judge could categorize a substance using co-conspirators' methods of identifying the substance based on its appearance, form, price, and quality. The flexible Guidelines approach mirrors the Walker approach, allowing the sentencing court broad discretion to consider a wide range of relevant evidence about a substance. Such evidence can include the source of the controlled substance, the price generally obtained for the substance, its appearance and form, and users and distributors' reports of the identity and quality.)

The Eighth Circuit panel unequivocally explained, "It is not clear error for the district court to sentence on the basis of 'ice' methamphetamine despite the government's failure to test the purity of the seized substance."

If you hoped to overturn your client's sentence with a similar lack-of-testing argument, it's time to look for a new strategy.

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