Argued and Submitted October 15, 2012 Honolulu, Hawaii
Appeal from the United States District Court for the District of Guam Frances Tydingco-Gatewood, D.C. No. 1:08-cr-00020-FMTG-2 Chief District Judge, Presiding
Mark Eibert, Half Moon Bay, California, for Defendant-Appellant.
Karon V. Johnson, Assistant United States Attorney, Hagåtña, Guam, for Plaintiff-Appellee.
Before: Stephen Reinhardt, Sidney R. Thomas, and Richard A. Paez, Circuit Judges.
Vacating a sentence and remanding for resentencing, the panel held that the district court committed three significant errors in sentencing the defendant for her involvement in a large-scale methamphetamine distribution scheme in Guam.
The panel held that the district court failed to use the Guidelines as a starting point, instead determining the sentence it desired to impose and then deciding the extent of the Guidelines reduction to be afforded in order to make the sentence fit within the Guidelines.
The panel held that the district court incorrectly calculated the base offense level because it improperly held that the defendant had pled guilty to transporting methamphetamine of a certain purity.
The panel held that the district court failed to determine a revised minimum sentence under 18 U.S.C. § 3553(e), a determination it was required to make when considering substantial assistance.
The panel could not assess the defendant's claims that the district court failed to give adequate consideration to the 18 U.S.C. § 3553(a) factors, but advised the district court to give further consideration to the defendant's age and the likelihood that she will die in prison.
The district court committed three significant errors at Jackie Yong Lee's sentencing. First, the court failed to use the Guidelines as a starting point. Instead, it determined the sentence it desired to impose and then decided the extent of the Guidelines reduction to be afforded, in order to make the sentence fit within the Guidelines. This was the converse procedure to that which it was required to follow. Second, it incorrectly calculated the Guidelines range when it held that Lee pled guilty to transporting methamphetamine that was 80 percent pure. Third, it failed to determine a revised minimum sentence under 18 U.S.C. § 3553(e), a determination that it was required to make in this case. For these reasons, we vacate and remand for resentencing. We also address Lee's other arguments on appeal, because the issues are likely to arise again at resentencing.
The details of Jackie Yong Lee's crime and her involvement in the Ichihara drug network are neither relevant to this appeal nor clear from the record before us. We therefore set forth only a brief summary of Lee's criminal conduct. Richard Ichihara was in charge of a large-scale methamphetamine distribution scheme in Guam, for which he was ultimately sentenced to 30 years in prison. Lee was indicted for her involvement in Ichihara's drug network.
Ichihara and many others were indicted on ten counts or less of violating various federal drug laws because of their involvement in the drug network. Lee was indicted on three counts. Count II charged Lee and others with conspiracy to distribute "more than 50 grams of net weight of methamphetamine hydrochloride (ice), " in violation of 21 U.S.C. § 841(a)(1) and § 846. Count III charged Lee and others with conspiracy to distribute "more than 3, 000 grams of methamphetamine hydrochloride (ice), its salts, isomers, and salts of its isomers and more than 30, 000 grams of a mixture and substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of ...