United States v. Alvarado-Tizoc, No. 10-1613 (7th Cir. 2011)
Annotate this CaseDefendants pled guilty to conspiracy to distribute more than 400 grams of substances containing a detectable amount of fentanyl and more than a kilogram of substances containing a detectable amount of heroin. Fentanyl is a powerful heroin substitute; retailers to whom defendants sold it diluted it so that the mixture sold to customers was less than one percent fentanyl. The judge attributed the entire amount of the retail sales to the defendants on the ground that their wholesaling was a "jointly undertaken criminal activity" and imposed sentences of 200, 170, and 121 months in prison. The Seventh Circuit vacated two of the sentences. Quantities sold by retailers cannot be attributed to defendants on a conspiracy theory, based on the sales alone, but the larger number of doses that result from selling fentanyl is partly reflected in the drug-equivalency tables in the Guidelines. The judge should have calculated the Guideline ranges on the basis of just the defendants' sales and then have adjusted their sentences to reflect considerations not taken into account by the 2.5:1 ratio, such as the many more retail doses that a given quantity of fentanyl produces than the same quantity of heroin.
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