United States v. Asbury, No. 21-1385 (7th Cir. 2022)
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Asbury came to a controlled buy with 82.2 grams of 99% pure methamphetamine. He was charged with distributing at least 50 grams of the drug, 21 U.S.C. 841(a)(1), (b)(1)(A)(viii). The indictment alleged that Asbury had a prior conviction for a serious drug offense. The PSR, “reflecting reports from others,” proposed holding Asbury responsible for 15,819.3 grams of a mixture containing methamphetamine, plus 82.2 grams of the pure drug. When the judge asked whether the prosecution had any additional evidence, he was told that it did not. Rather than nail down the factual basis for the additional drug-quantity allegations, the court addressed whether the distribution of drugs other than those directly involved in the offense could be considered as relevant conduct, then adopted the PSR, raising Asbury’s offense level from 30 to 36, then added two levels for perjury, resulting in a guidelines range of 360 months to life. Had the offense level been 32, his range would have been 210-262 months. Because of Asbury’s prior conviction, his statutory minimum sentence was 180 months. The court addressed 18 U.S.C. 3553(a)’s factors, stating that any error in Asbury’s offense level, “would not affect my sentence," and imposed a 360-month sentence.
The Seventh Circuit vacated and remanded for resentencing. The district court erred in calculating Asbury’s relevant conduct. The judge’s brief statement did not establish that the guideline error was immaterial.
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