United States v. Carnell, No. 19-2207 (7th Cir. 2020)
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Carnell pled guilty to a conspiracy to distribute a mixture containing methamphetamine, 21 U.S.C. 841(a)(1), 841(b)(1)(B) and 846.. The Sentencing Guidelines distinguish between mixtures involving run-of-the-mill methamphetamine and methamphetamine that is at least 80% pure. U.S.S.G. 2D1.1, note C (ice). Ice sentences are substantially higher than those for non-ice methamphetamine. Carnell claims that the government failed to meet its burden of proving that the substance in which he dealt was ice methamphetamine.
The Seventh Circuit reversed in part. Ice, unlike other drugs, is subject to lab tests and precise definitions, which eliminates the value of any evidence in the nomenclature category, such as “everyone referred to the drugs as ice.” In this case, the two methamphetamine samples that were tested by DEA laboratories and found to be 100% pure had no connection to the Carnell conspiracy. Courts cannot rely on the expertise of a drug user, dealer, or law enforcement officer alone to determine that methamphetamine is more than 80% pure as opposed to 79% pure. The court declined to address the question of whether all of the methamphetamine attributable to a defendant must be tested, and if not, what would constitute a reliably representative sample. In this case, none of the ice attributable to the conspiracy was tested.
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