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U.S. v Kamper

Case No. 12-5167 (C.A. 6, Apr. 9, 2014)

Defendants-appellants Glenn Kamper and Joe Head appeal their respective 144-month sentences imposed for their roles in a conspiracy to manufacture and distribute MDMA (also known as 3,4-methylenedioxymethamphetamine or “ecstasy”) in Chattanooga, Tennessee. Head and Kamper both appeal their sentences as procedurally and substantively unreasonable. Kamper argues that the MDMA-to-marijuana equivalency ratio underlying his Guidelines sentencing range is based on faulty science, and that the district court erred when it justified its refusal to reject the Guidelines ratio with institutional concerns. We conclude that the district court misunderstood its authority to reject and replace a Guidelines equivalency ratio based on policy disagreements, but conclude that the district court’s error was harmless. We reject Kamper’s other arguments regarding the reasonableness of his sentence as without merit. Head argues that the district court erred in applying sentencing enhancements for his aggravating role in the criminal conspiracy and for obstruction of justice. We conclude that Head’s sentence must be vacated because the district court erred in applying a sentencing enhancement for obstruction of justice. Accordingly, we AFFIRM the judgment of the district court with respect to Kamper, but REVERSE the judgment of the district court with respect to Head and REMAND for resentencing.

I. BACKGROUND



A. The Conspiracy



In early 2009, Glenn Kamper, Joe Head, and Jonathan St. Onge devised a plan to manufacture and distribute MDMA in Chattanooga, Tennessee. K.R. 243 (Trial Tr. at 116) (Page ID #1201). Each of the men filled a different role in the conspiracy: Kamper was the administrator, Head was in charge of manufacturing, and St. Onge organized the distribution. Kamper first proposed the idea of dealing drugs, he supplied the initial start-up funds and “provided cash flow,” and he ensured that the process stayed “on an even keel.” Id. at 116 (Page ID #1201). Head had access to chemical supplies through his laboratory job at a water treatment facility, and he used his education and training in chemistry to devise a method of producing MDMA from the sassafras plant. Id. at 117 (Page ID #1202). St. Onge drew on his experience dealing other drugs to organize a distribution network among deejays and others involved in the “rave scene.” Id. at 118–19, 139 (Page ID #1203–04, 1224).

The three men initially manufactured MDMA at Kamper’s home, but they later relocated to a house in Georgia. Id. at 124–25 (Page ID #1209–10). During the manufacturing process, Head extracted a compound naturally produced in the sassafras plant and used several toxic chemicals to transform the natural compound into a synthetic compound. None of the other conspirators had the education or training necessary to understand or execute the manufacturing process: “[Head] was the brains behind everything, all the chemical work.” Id. at 133 (Page ID #1218). At times, other co-conspirators, including St. Onge, Kamper’s boyfriend Jared Pietzsch, and Head’s roommate Jeremy Harvey, assisted Head with “menial tasks” related to the production process, such as “cutting up little squares of aluminum foil [and] holding things that were heavy.” Id. at 121–22 (Page ID #1206–07). However, they would generally “stay away from the [manufacturing] process” even when they were in the house at the same time. Id. at 151 (Page ID #1236).
 

 

Judge(s): Karen Nelson Moore
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Constitutional Law , Criminal Justice , Education , Employment , Government / Politics , Property , Technology
 
Circuit Court Judge(s)
Richard Griffin
Edward Korman
Karen Moore

 
Trial Court Judge(s)
Curtis Collier

 
Appellant Lawyer(s) Appellant Law Firm(s)
Allison Ehlert Ehlert Appeals
Nikki Pierce Federal Defender Services of Eastern Tennessee Inc
Amy Baron-Evans Office of the Federal Public Defender

 
Appellee Lawyer(s) Appellee Law Firm(s)
Luke McLaurin U.S. Department of Justice
Jay Woods U.S. Department of Justice

 

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different from the ratio that is in the guidelines. 95 (1993). were that the case, a defendant’s constitutional right to testify on his own behalf file name: 14a0070p.06 sentencing enhancement. so in this case, in light of this motion, the court will deny the motion. 4 sentencing enhancement for obstruction of justice. accordingly, we affirm the judgment of plaintiff-appellee, no. 12-5167 usa v. kamper et al. page 3 you gotta love this though . . . they moved me about a week and a half ago, into § 3553(a) objectives to the particular facts of the individual case. id. thus, while recognizing whether the district court committed “significant procedural error, such as failing to calculate (or booker, 543 u.s. at 264). the court also recognized that the sentencing commission “has the united states court of appeals desperation in the face of debt rather than by greed, and (3) his personal characteristics, obstruction of justice and in withholding acceptance-of-responsibility credits based upon an to-marijuana ratio embraced by the guidelines.3 or prosecution of the offense.” u.s.s.g. § 2d1.1(b)(14)(d). a defendant has obstructed justice disagreement. the district court erred by concluding, to the contrary, that “[i]t is not clear to the no. 12-5167 usa v. kamper et al. page 7 we must determine the appropriate standard of review to apply. although we ordinarily review adopting the reject-and-replace approach would lead to widespread sentencing disparities as each argued: amy baron-evans, office of the federal public defender, boston, they yield an excessive sentence in a particular case”). congress, and through congressional delegation, in the commission. because error. vonner, 516 f.3d at 386. the government argues that, by failing specifically to assert an conspirator is responsible for the acts of others.” id. at 76–77 (page id #986–87). the district decided and filed: april 9, 2014 happens to snitches and how snitches are not well-received in jails and in prisons. after considering other objections, the district court returned to the equivalency ratio snitches being killed once they get to prison. . . . should the court assume that 3 _________________ and a sentence in this case should be sufficient that those people will not use their court addressed kamper’s argument that the ratio is flawed at great length and explained that, to valid institutional and equality concerns, the supreme court nonetheless concluded that district day, but at least he stays far away from me and walks the other way whenever he again adhered to the approach it adopted in phelps and mcelheney, and declined to reject glenn kamper (12-5167) and joe head (12- package shipped to carlos zamora-chang earlier in the day. when they intercepted the package, district court considered kamper’s personal characteristics, but ultimately concluded that app’x at 10. the district court “must not rely on the guidelines for reasons that kimbrough enhancement, a defendant must have managed or supervised “one or more other participants,” california, for appellant in 12-5800. luke a. mclaurin, united states attorney’s range for drug offenders in each drug type, http://isb.ussc.gov/content/pentaho- 28, the probation office recommended applying a two-level obstruction-of-justice enhancement knowledge for illicit purposes. the people that sell ecstasy, they can be easily §§ 841(a)(1), 841(b)(1)(c), and 846. k.r. 12 (indictment) (page id #21–23). authority than the other two conspirators. k.r. 224 (sentencing hr’g tr. at 67) (page id #977). no. 12-5167 usa v. kamper et al. page 10 and st. onge created a “three-headed organization” in which they shared control of the criminal the honorable edward korman, united states district judge for the eastern district of new york, sitting selected guidelines ratio. in the context of child-pornography crimes, we have cautioned that “when a guideline kamper presentence report (“psr”) ¶ 15; head psr ¶ 15. while observing the residence on obstruction of justice and for his aggravating role as a manager or organizer of the conspiracy. 1. mdma-to-marijuana ratio #1218). at times, other co-conspirators, including st. onge, kamper’s boyfriend jared pietzsch, education, and employment history indicated a lesser need for incapacitation. kamper’s first arguments at the sentencing hearing explaining why the district court had authority to reject the a district court may increase a defendant’s offense level by three levels if he “was a enterprise. h.r. 245 (sentencing hr’g at 41–42) (page id #1624–25). therefore, regardless of commission in 2000 to increase the penalties connected to mdma crimes based on the perceived harmfulness of sentences. u.s. sentencing commission’s interactive sourcebook, sentences relative to the guideline manager or supervisor (but not an organizer or leader) and the criminal activity involved five or head’s sentence. at least vary from the guidelines range calculated using the flawed ratio. k.r. 162 (ratio and not merely the criminal scheme. id. at cmt. 2; see also united states v. gort-didonato, 109 authority in appropriate cases to reject the guidelines sentencing ranges based on articulated no. 12-5167 usa v. kamper et al. page 12 whether under 3553(a) the guideline provides the court with a sentence that is personal characteristics. kamper raises essentially similar arguments regarding the failure to and with that decision the court recognizes it has the authority to adopt a ratio defendants-appellants. selected by congress for child pornography offenses, but concluding that the district court “did “engage in the rulemaking process” because they are not popularly elected, representative commission’s superior claim to making “value judgments concerning the relative harm of a “whether specific facts actually constitute an obstruction of justice.” united states v. bazazpour, comes bristling with congress’s own empirical and value judgments—or even just value judgments—the district although the supreme court first announced the “reject and replace” authority in the mdma-to-marijuana equivalency ratio embedded in the sentencing guidelines. he also argues _________________ district court had explicitly addressed the issue. simmons, 587 f.3d at 355 (“[i]t is unnecessary error was harmless because the record makes clear that the district court would have imposed the the district court need not explicitly discuss each § 3553(a) factor, the statement of reasons must aggravating role as a manager or supervisor of the conspiracy. “this court has yet to clarify the no. 12-5167 usa v. kamper et al. page 24 because we find no reversible procedural error, we next turn to kamper’s contention that id. at 60–61 (page id #1643–44). after considering the other §3553(a) factors, the district court court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] united states v. kamper, 860 f. supp. 2d 596, 599–600 (e.d. tenn. 2012). the district court guidelines equivalency ratio based on policy disagreements, but conclude that the district court’s head first attempts to join kamper’s argument regarding the lack of empirical support for § 3b1.1(a). kamper reply br. at 27–30. because he failed to raise this argument in his initial appellate brief, we about the mdma manufacturing process but was actually conducting that process id. at 84 (page id #994). pursuant to u.s.s.g. § 3c1.1, the district court applied the offenders by type of drug. in 2012, only 27.9% of judges who sentenced mdma offenders gave within-guidelines 224 (sentencing hr’g tr. at 139) (page id #1049); see united states v. simmons, 587 f.3d 348, consider the [18 u.s.c.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, we review challenges to the reasonableness of a sentence for abuse of discretion. united equivalency ratio underlying his guidelines sentencing range is based on faulty science, and that 60–62 (page id #970–72) (citing united states v. phelps, 366 f. supp. 2d 580 (e.d. tenn. rejected, such as institutional competence, deference to congress, or the risk that other judges the district court also erred by applying the sentencing enhancement for head’s court also made an explicit finding that this statement, made under oath, was false, reasoning that 2012). therefore, we find no error in the district court’s explanation of kamper’s sentence. low). therefore, we conclude that the district court had the power to exercise his discretion to should impose a lower sentence, which is what the court did in mcelheney. at kamper’s sentencing hearing and in the sentencing memorandum issued following the consider § 3553(a) factors as examples of both procedural and substantive error. “this blurring 278, 290 (6th cir. 2012). no. 12-5167 usa v. kamper et al. page 20 that he, head, and st. onge shared decision-making authority and that he had no greater cir. 2010). to be sure, the district court is not required to reject the guidelines range, even if it this common knowledge? snitches “are not well-received in jails and in prisons.” id. at 84 (page id #994). had the district enhancement.” castilla-lugo, 699 f.3d at 460. thus, the district court misapplied the law when the policy justifications underlying the ratio or his determination that the ratio regularly produces the sentence his arguments that (1) the guidelines ratio was flawed and without empirical being compliant while on supervised release, and the defendant agreeing to the facts in the states v. lawrence, 308 f.3d 623, 632 (6th cir. 2002). perjury is “(1) a false statement under authority both to reject and to replace a guidelines ratio purely based on his disagreement with the government, supports the district court’s finding and demonstrates kamper’s knowledge that no. 12-5167 usa v. kamper et al. page 21 explaining its decision in greater detail. the district court summarized its authority to depart considerations.” kimbrough, 552 u.s. at 101 (internal quotation marks and alteration omitted). to consider his arguments; such an objection must be preserved by an objection after the months of imprisonment. accordingly, we affirm the judgment of the district court regarding time kamper identified him as a snitch, st. onge was cooperating with the government and court this broad reject-and-replace power does (or should) exist outside the universe of crack-to- judge adopted a different equivalency ratio to produce widely varying sentencing ranges. id. at district court declined to apply the weapons-related enhancement, h.r. 245 (sentencing hr’g tr. to head: in response to kamper’s argument that the three men shared equal authority, the district court to determine that the guidelines based upon the ratio may result in a sentence that trial, the jury convicted head for his role in the conspiracy. h.r. 131 (jury verdict) (page id the district judge explicitly recognized that evidence and testimony and to answer the empirical questions implicated in making judgments disagreement is not a proper basis for a judge to vary,” the resulting sentence is procedurally v. conclusion ┐ the district court made several statements during the hearing and in its written memorandum harmless in light of the district court’s statements that it would choose to use the guidelines ratio no. 12-5167 usa v. kamper et al. page 8 sees me when we are out in the big common room when we are not in our cells. court erred because it failed to make a factual finding that head managed or supervised other sentencing commission indicates that he actually believed it was not proper to vary from the and confirmed in spears to the crack-powder cocaine context.”). we have recognized courts’ four-level enhancement for his role as a leader or organizer of the conspiracy pursuant to the court then would see if a departure upward or downward is proper. after during head’s sentencing hearing because head had raised no objection that would prompt the ii. standard of review no. 12-5167 usa v. kamper et al. page 2 that the guidelines’ mdma-to-marijuana ratio should not be rejected because it was not “snitch.” we review the district court’s findings of fact for clear error, but determine de novo reasonable. “the essence of a substantive-reasonableness claim is whether the length of the could be undermined by the prospect that he would be punished at sentencing for doing so. id. at courts have the authority to reject a guidelines equivalency ratio if they conclude that it appeal from the united states district court with this objection, kamper filed a motion (the “ratio motion”) requesting that the district court between jurisdictions with fast-track programs and jurisdictions without such programs); 5 level dangerous-weapons enhancement pursuant to § 2d1.1(b)(1). head’s advisory sentencing “rave scene.” id. at 118–19, 139 (page id #1203–04, 1224). 59, 66 (2001). we need not resolve the question in the instant case because we conclude that the no. 12-5167 usa v. kamper et al. page 18 opinion sentencing because it “cannot be ‘preserved’ in advance of a sentencing event that has yet to erred by failing properly to recognize its authority to reject and replace the guidelines ratio, the therefore, the court held that “it would not be an abuse of discretion for a district court to and admit to the facts of the conspiracy: “the acts of putting in jeopardy the safety and/or life of herrera-zuniga, 571 f.3d at 583–86 (permitting a district court to reject the guidelines range for categorically the equivalency ratio embodied in the sentencing guidelines. mdma-to-marijuana equivalency ratio and replace it with a more appropriate ratio. a district kamper first proposed the idea of dealing drugs, he supplied the initial start-up funds and frequently other judges deviated from the guidelines in mdma cases. id. at 608. the district court in the instant case misunderstood its authority to reject the guidelines’ sentencing as an attempt to dissuade similarly educated individuals from abusing their sentencing disparities remained a concern, but concluded that “advisory guidelines combined 763–64 (6th cir. 2012) (reasoning that courts have the authority to reject the guidelines range (453.6 grams) of marijuana from benjamin park, who shared a residence with hutchinson. district court’s application of a u.s.s.g. § 3b1.1 enhancement traditionally has been subject to guidelines ratio and substitute a lower ratio. direct the district court to increase a defendant’s offense level by two levels if he “willfully in kimbrough. we have held that, when a district judge explicitly acknowledges his authority to § 4b1.2, “[i]n light of the fact-bound nature of the decision.” buford v. united states, 532 u.s. k.r. 224 (sentencing hr’g tr. at 132) (page id #1042) (“[kamper’s] involvement with these adopting a particular guideline. but at the end of the day the court will determine defendant makes, particularly when those arguments are raised only in passing.” united states v. cdf/renderxcdf?solution=sourcebook&path=&action=table_xx.xcdf&template=mantle&table satisfied. see united states v. olano, 507 u.s. 725, 734 (1993). 5800), second, the district court noted that, even if it had authority to reject the drug equivalency address the merits of his substantive arguments regarding the mdma-to-marijuana ratio. k.r. occur.” see lamb, 431 f. app’x at 424. rather, kamper argues that the court abused its sentencing practices will help to ‘avoid excessive sentencing disparities.’” id. at 107 (quoting does not mean that the court must disagree with that guideline or that it must reject the #989). support, (2) he was less culpable than similarly situated defendants because he was motivated by #1642). the court determined that it was especially important to consider deterrence in demonstrate that the district court at least considered each factor when determining the after considering head’s objections to the psr, the district court determined head’s │ district court reject the guidelines ratio and select a different equivalency ratio. kamper’s (page id #1623). kamper’s education and background supported a longer sentence, rather than a reduced sentence. § 3553(a).” united states v. tristan-madrigal, 601 f.3d 629, 632–33 (6th cir. 2010). a knowledge of or involvement in manufacturing mdma: decision to inform other inmates that st. onge was cooperating with the government can be enhancements for his aggravating role in the criminal conspiracy and for obstruction of justice. court based its finding solely on the assumption that kamper had been exposed to popular media § 3b1.1(a). the probation officer recommended denying an adjustment for acceptance of [m]y assumption is, with his years and his education and some experience, he’s (citing united states v. haj-hamed, 549 f.3d 1020, 1023 (6th cir. 2008)). we first evaluate do so.” id. at 609. no. 1:11-cr-3—curtis l. collier, district judge. #264). underlying the mdma-to-marijuana ratio and the sentencing practices of federal district courts id. at 117–18 (page id #1027–28). the sentencing judge concluded that the guidelines range § 2d1.1, cmt. 8(d). to kamper’s base offense level of 28, the probation officer recommended guidelines equivalency ratio, and it is clear that the district court considered those arguments. because of the difference in [his] leadership, [his] age, [his] experience, [and his] abilities.”). in section 3553(a). mdma manufacturing process but was actually conducting that process himself.” h.r. 245 there are other people who have training in chemistry, training in biology, training to distribute mdma and possessing mdma with intent to distribute in violation of 21 u.s.c. powder ratio cases.” kamper, 860 f. supp. 2d at 604. guideline for policy reasons and may reject the guidelines range because of that disagreement the court recognizes that it has the authority to impose a sentence outside of the not raise it at his sentencing hearing, and did not join in kamper’s motion requesting that the elements to be satisfied, we would risk undermining a criminal defendant’s constitutional right to i. background to be sure, the record arguably demonstrates that head was responsible for directing and-replace power” to solely cases involving crack cocaine. id. the district court also noted that sentenced head to 144 months of imprisonment. id. at 61 (page id #1644). vary downward. k.r. 224 (sentencing hr’g tr. at 118) (page id #1028). id. at 51 (page id #1634). that, the court would then look at the [18 u.s.c. §] 3553(a) factors and determine may result from the fact that such an error can come in at least two forms: the procedural error ordinarily produces sentences greater than necessary to achieve the purposes of sentencing. see and impose the same sentence in any event, we turn to kamper’s alternative arguments regarding in laboratory work, who could also use that knowledge to manufacture ecstasy. mcdaniel, 398 f.3d 540, 551 n.10 (6th cir. 2005). however, the supreme court cast doubt on i’ve also made sure that everyone else in this pod, about 35 guys, knows that he is considered the appropriate factors. united states v. hogan, 458 f. app’x 498, 504 (6th cir. inconsistencies, they are not in conflict with each other. therefore, we need not grant primacy to the oral sentence. no. 12-5167 usa v. kamper et al. page 22 “h.r.” refers to record documents in head’s case, no. 12-5800. discretion standard, procedural claims raised for the first time on appeal are reviewed for plain range was calculated as 168 to 210 months of imprisonment. impose a sentence outside of the guidelines, based upon the kimbrough decision, defendants is much, much more serious than the typical leader or organizer of a conspiracy, discretion. admission by kamper that he told other inmates in his jail pod that st. onge was a “rat” and a competence, separation-of-powers concerns, or any other grounds that suggest the district court about the mdma manufacturing process does constitute perjury, and, because it context of the crack-to-powder cocaine ratio, we have clarified that district judges may exercise that he should have received a downward adjustment for accepting responsibility by pleading other individuals in menial tasks, such as holding heavy equipment and cutting foil squares. preservation analysis should be conducted “‘with an eye to the realities of the facts and district court committed procedural error by failing to recognize its authority to reject the joe head appeal their respective 144-month sentences imposed for their roles in a conspiracy to id. at 62 (page id #972). the three men initially manufactured mdma at kamper’s home, but they later relocated the court concludes that the sentencing commission is in a better position than for institutional reasons even if it could assume such powers, the court denied thus, although the district court at kamper’s sentencing hearing, we cannot conclude that the elements of the plain-error test are ┘ administrator, head was in charge of manufacturing, and st. onge organized the distribution. 2. enhancement for obstruction of justice tennessee, for appellee. guidelines ratio based on policy disagreements. kamper, 860 f. supp. 2d at 603–09; k.r. 224 another individual speaks a lot more than the defendant’s entering a guilty plea, the defendant consider and adequately to explain why it rejected several of his arguments for leniency.5 at 37) (page id #1620), but applied the remaining two enhancements related to managerial role moreover, we uphold the district court’s decision to withhold an adjustment for court makes a specific finding that the defendant’s statement that he had no idea motion) (page id #378–402). in the ratio motion, kamper argued that the mdma guidelines disagrees with the ratio on policy grounds: “[t]he fact that a district court may disagree with a opposed to other cases, to deter others with this knowledge from using this or failing to adequately explain the chosen sentence.” gall v. united states, 552 u.s. 38, 51 that the district court miscalculated his guidelines range by applying enhancements for powder cocaine ratio); see also united states v. staten, 435 f. app’x 422, 426 & n.1 (6th cir. court’s failure to respond explicitly to kamper’s motivation argument is not unreasonable manufacture and distribute mdma in chattanooga, tennessee. k.r. 243 (trial tr. at 116) kamper filed several objections to the conclusions contained in his psr. he argued that counsel if the sentence is procedurally sound, we next evaluate whether it was substantively was inappropriate for kamper based on the drug quantity involved, but expressed concern that melesio, 532 f. app’x 596, 599 (6th cir. 2013); see also castillo-lugo, 699 f.3d at 459. the much interchangeable. the rare knowledge that you have, though, is not because “a sentencing judge is not required to explicitly address every mitigating argument that a circumstances of each sentencing proceeding’” (quoting vonner, 516 f.3d at 391)). no explicit the district court clearly identified which portion of head’s testimony that it believed to vary but also makes “remarks about the proper role of courts [that] reveal his belief that a policy kamper’s motion. arm of the enterprise. several months later, the ci arranged to purchase an additional pound finally, he makes a number of subsidiary arguments relating to the district court’s failure to factors. marijuana ratio and instead sentenced the defendant under the same ratio as that used for cocaine kamper’s letter to head, written after he told other inmates that st. onge was cooperating with advisory and that courts could therefore “vary from guidelines ranges based solely on policy (6th cir. 2005) (finding that the district court erred in sentencing the defendant, but concluding because the district court erred in imposing these sentencing enhancements as explained erred in failing to address the defendant’s argument for varying downward based on the crack-to- not accepted responsibility for his criminal conduct.” u.s.s.g. § 3e1.1, cmt. 4. the district chemicals to transform the natural compound into a synthetic compound. none of the other from most defendants that the court sees in this courtroom, and that’s because you are a skilled, office, knoxville, tennessee, for appellee. on brief: amy baron-evans, office of denied kamper’s ratio motion. the court compared the vast resources and institutional role of in late 2009. id. at 127 (page id #1212). in november 2010, a confidential informant (“ci”) principle in our constitution that separates legislative and adjudicative functions.” id. at 604. for accepting responsibility, united states v. gregory, 315 f.3d 637, 640 (6th cir. 2003) (citation enhancement applied because each of the three co-conspirators was “jointly the manager or this court to take into account all of the various value judgments involved in an enhancement for obstruction of justice is appropriate if a defendant received an court then concluded that kamper’s active role in planning and organizing the conspiracy process: “[head] was the brains behind everything, all the chemical work.” id. at 133 (page id 04, institutional competence, id. at 606–07, and sentencing variation among district judges, id. at error was harmless. we reject kamper’s other arguments regarding the reasonableness of his manufacturing mdma, the managerial-role enhancement did not apply because he had never interchangeable. knowledge: conclude when sentencing a particular defendant that the crack/powder disparity yields a no. 12-5167 usa v. kamper et al. page 14 at sentencing, the district court discussed kamper’s objection to the mdma-to- sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 u.s.c. no. 12-5167 usa v. kamper et al. page 9 january 19, 2011, law-enforcement officers saw st. onge arrive with a large package, which they reviewed for plain error. bostic, 371 f.3d at 872–73. although the district court did not discuss district court rejected kamper’s assertion that he was ignorant of jailhouse culture in this respect: is greater than necessary to comply with the factors set forth in section 3553. long as the obstructive conduct related to the offense of conviction or a closely related offense. the designation “k.r.” refers to record documents in kamper’s case, no. 12-5167. the designation and news regarding the treatment of informants in jail, we might have found error. however, pursuant to §3c1.1, a three-level managerial-role enhancement pursuant to §3b1.1(b), and a two- warranting remanding the case for resentencing. see united states v. vandewege, 561 f.3d 608, court that seeks to disagree with the guideline on policy grounds faces a considerably more formidable task than the the approach that is suggested in mcelheney, and that would be to determine #1003–04). st. onge requested that he be transferred to a different pod. id. at 93 (page id of mdma. pietzsch soon arrived at st. onge’s residence with the requested mdma, and he appropriate sentence. united states v. battaglia, 624 f.3d 348, 351 (6th cir. 2010). manufacture and distribute mdma (also known as 3,4-methylenedioxymethamphetamine or thoroughly each of kamper’s arguments, its reasoning was sufficient to show that it considered the district court erred when it justified its refusal to reject the guidelines ratio with institutional onge and used his phone to contact kamper with an order for an additional ounce (28.35 grams) finally, kamper argues that the district court committed procedural error by failing to iii judicial power to include the legislative and rulemaking powers vested in another pod here and they totally fucked up and put me into the same pod as that review, we conclude that the district court erred in applying the aggravating-role enhancement to the reasonableness of his sentence. reject the mdma-to-marijuana ratio embedded in the guidelines. offenses. kamper argued that the district court in the instant case should likewise reject the purposes of 3553. if such a sentence is greater than necessary, then the court offense and failed adequately to consider relevant factors, such as kamper’s motivation and his anticipated being called as a witness at head’s trial. st. onge testified that, after kamper began concerned about them “taking a physical action” against him or ostracizing him. k.r. 224 probably watched some television shows, he’s probably gone to some movies it concluded that the enhancement applied to head because he, kamper, and st. onge were finally, kamper objected to the enhancement for obstruction of justice and the denial of . . . there are other people, there are not a large number of people, but reasonably construed as an indirect threat, and the district court did not err in applying the obstruction-of-justice enhancement to kamper’s sentence, concluding that “sending a letter to no. 12-5167 usa v. kamper et al. page 4 himself. so the court finds that this adjustment is appropriate in this case. the massachusetts, for appellant in 12-5167. allison l. ehlert, ehlert appeals, el cerrito, head also argues that the district court erred procedurally and substantively when it a. procedural reasonableness 58) (page id #917–68). the district judge also expressed concern that there were not statistics (sentencing hr’g tr. at 58–62) (page id #968–72) (“the court concludes that the sentencing to a house in georgia. id. at 124–25 (page id #1209–10). during the manufacturing process, 605. the district court also reiterated its concern that no statistics were available regarding how (page id #1201).1 by a professional staff with appropriate expertise.” id. at 109 (internal quotation marks omitted). they found that it contained an ounce of mdma. kamper psr ¶ 17; head psr ¶ 17. on mine-run case.” spears, 555 u.s. at 265 (“a sentencing judge who is given the power to reject states v. camacho-arellano, 614 f.3d 244, 247 (6th cir. 2010). in considering whether the │ with or destroyed evidence, or otherwise obstructed justice in connection with the investigation commission.” kamper, 860 f. supp. 2d at 604; see also k.r. 224 (sentencing hr’g tr. at 118) 690 f.3d 796, 805 (6th cir. 2012). we review the district court’s determination that a defendant they knew he was cooperating with the government. id. at 82–84 (page id #992–94). the when the district court misunderstands its own authority, ordinarily grounds exist enhancements for aggravating role and obstruction of justice to their sentences. they also argue specifically, kamper asserts that the district court neglected to explain how it incorporated into to the extent that kimbrough suggested otherwise, the district court limited the “broad reject- procedurally by misapprehending the law and applying the aggravating-role enhancement based spreading rumors about him, the other inmates became “rile[d] up” and st. onge became sentencing enhancement for his aggravating role as the organizer or leader of the conspiracy pursuant to u.s.s.g. whether the guideline is correct. after the court determines the correct guideline, 2004), kamper neglected to preserve his procedural argument that the sentencing court failed to court “would have imposed the same sentence if [it] had known of [its] discretion to vary (sentencing hr’g tr. at 93–94) (page id #1003–04). the district court made the factual finding before been to jail, he did not understand that other inmates might physically threaten st. onge if the mdma-to-marijuana ratio embodied in the sentencing guidelines. as a threshold matter, suborn perjury.” id. at cmt. 4(b). however, the sentencing enhancement does not apply to every an adjustment for acceptance of responsibility. kamper argued that he did not intend to threaten of failing actually to consider all the relevant factors, and the substantive error of imposing a obstruction-of-justice enhancement applied because head had committed perjury by denying any replaced. the people that—the middle people, the money people, they’re pretty madden, 515 f.3d 601, 611 (6th cir. 2008). furthermore, the record clearly indicates that the motion relied heavily on united states v. mccarthy, no. 09 cr. 1136, 2011 wl 1991146 court reasoned that kamper’s behavior in jail outweighed his willingness to enter a guilty plea 2 kamper’s motivations and personal characteristics when determining his sentence. the district alternative basis upon which to calculate the sentence. therefore, the supreme court recognized will set different ratios.” id. at 11–12 (footnote omitted).2 that the rejection of one ratio “necessarily implies adoption of some other ratio to govern the guidelines.” united states v. cole, 343 f. app’x 109, 115 (6th cir. 2009); see also herrera- managed or directed another person. the district court determined that the managerial-role > see united states v. penson, 526 f.3d 331, 334 (6th cir. 2008). sentencing guidelines, asserting that the ratio was based on discredited science. in connection own legal decisionmaking authority.” rita v. united states, 551 u.s. 338, 356 (2007). although no. 12-5167 usa v. kamper et al. page 5 § 3553(a) factors justify the sentence, we apply a presumption of reasonableness to within- technically trained individual with a very, very scarce and rare knowledge.” id. at 59 (page id “kimbrough authorizes a federal district court judge to reject a policy judgment by the has not accepted responsibility for the offense for clear error. united states v. coss, 677 f.3d production process, such as “cutting up little squares of aluminum foil [and] holding things that head also argues that the district court improperly applied sentencing enhancements for a rat and a snitch and now hardly anyone talks to him any more since no one likes tr. at 263) (page id #1348). he also flatly stated that he had never produced mdma. id. after challenges to the procedural reasonableness of a sentence under the deferential abuse-of- for the sixth circuit abused his education and skills: “you stand out from all the other defendants, and you stand out court in any capacity: he did not make the ratio argument in his sentencing memorandum, did reject the mdma-to-marijuana ratio embedded in the guidelines based on a reasoned policy (page id #1236). range in mdma cases. id. at 33 (page id #943). after the sentencing hearing, the district court published a written memorandum he should not have received either the obstruction of justice or leadership role enhancement and district court did in kimbrough.” bistline, 665 f.3d at 764. in the instant case, congress directed the sentencing by designation. bodies: “[t]his court questions whether endowing district court judges with the general power united states’ in the federal judicial branch. u.s. const. art iii, §1. . . . although before moore and griffin, circuit judges; korman, district judge.* zuniga, 571 f.3d at 585 (“we thus see no reason to limit the authority recognized in kimbrough “no one likes a rat in jail.” k.r. 172 (kamper ltr.) (page id #445). therefore, kamper’s in early 2009, glenn kamper, joe head, and jonathan st. onge devised a plan to defendant who testifies and is subsequently convicted. united states v. dunnigan, 507 u.s. 87, testify on his own behalf. we therefore conclude that the district court failed to make the individuals involved in the conspiracy. indeed, the district court implicitly rejected defense united states v. booker, [543 u.s. 220 (2005)], rendered the guidelines advisory, grounds, it would not have done so. see kamper, 860 f. supp. 2d at 605 (“[t]he court has no solely upon head’s management of the criminal activity. under either deferential or de novo guidelines because it disagreed with policy judgments that created wide sentencing disparities calculation of the defendant’s guidelines range is reversible procedural error. accordingly, we #969–70). the sentencing judge then described the framework he had used in past cases, id. at discretion during sentencing to accept or reject a defendant’s policy arguments for rejecting a the power to legislate a new mdma-to-marijuana ratio, [it] must decline kamper’s invitation to kamper does not argue that the district court committed procedural error by failing even other inmates had become “rile[d] up” and he began to fear that they would “tak[e] a physical demonstrate that the district court erred by failing appropriately to recognize his authority to sentence may be substantively unreasonable if the district court “fail[ed] to consider relevant id #1201). head had access to chemical supplies through his laboratory job at a water treatment guidelines range. however, a district court must base any decision not to replace the sentencing [b]ecause of this rare skill, the court deems it important in this case, as (page id #1028). however, his analysis of the proper institutional roles of the courts and the 94–95. rather, the obstruction-of-justice enhancement applies only if the district court oath (2) concerning a material matter (3) with the willful intent to provide false testimony.” united states arriving at his own guideline system, the better approach would be objection after the court’s inquiry, see united states v. bostic, 371 f.3d 865, 872–73 (6th cir. factual basis.” k.r. 224 (sentencing hr’g tr. at 102–03) (page id #1012–13). considering the │ court to do so. however, given our discussion regarding the district court’s analysis of this issue and head’s roommate jeremy harvey, assisted head with “menial tasks” related to the “(1) identif[ies] those particular portions of defendant’s testimony that it considers to be recommended for full-text publication │ first, the district court maintained that its authority was confined to the adjudicative on policy disagreement with them, and not simply based on an individualized determination that judgments involved in adopting a particular guideline.”). specifically, the district court chose adjustment under § 3b1.1 for aggravating role and “engaged in witness intimidation, tampered whether head actually did supervise other individuals in the conspiracy, the district court erred or intimidate st. onge, who was a cooperating witness for the government when kamper told with appellate review for reasonableness and ongoing revision of the guidelines in response to dealing other drugs to organize a distribution network among deejays and others involved in the 1 different roles. . . . [t]hey were organizing the conspiracy. and then the conspiracy and each policy disagreements in a range of contexts. see, e.g., united states v. bistline, 665 f.3d 758, mdma, equivalent to 609.375 kilograms of marijuana. to the resulting base offense level of argued: november 21, 2013 “ecstasy”) in chattanooga, tennessee. head and kamper both appeal their sentences as experience, [and his] abilities.” id. at 132 (page id #1042). although remand is not necessary in this case, we note that our opinion does not objection after the bostic inquiry was required here because kamper had already argued and the the evidence at trial was sufficient to establish that mr. head not only had an idea on appeal.”). therefore, we review the district court’s ruling on this issue for abuse of range, it nonetheless still has the authority to do so. see bistline, 665 f.3d at 763. knoxville, tennessee, jay woods, united states attorney’s office, chattanooga, unwarranted sentencing disparities. perjurious; and (2) either make[s] a specific finding for each element of perjury or, at least, specialized knowledge in improper ways. kamper failed to raise the other two arguments before the district court, and they are thus sentence as without merit. head argues that the district court erred in applying sentencing a. the conspiracy mdma from the sassafras plant. id. at 117 (page id #1202). st. onge drew on his experience sentencing policy, and because the court would refrain from doing so in this case karen nelson moore, circuit judge. defendants-appellants glenn kamper and the disparity created by the crack-to-powder ratio must also possess the power to apply a to the threatened person.” united states v. jackson, 974 f.2d 104, 105 (9th cir. 1992). at the ratio underlying the guidelines based on policy disagreements. the court reasoned that, after its sentence. the sentencing judge explained that head was particularly culpable because he had thus, we find neither procedural nor substantive error during kamper’s sentencing kamper, including the flawed guidelines ratio and his personal characteristics. sentenced him for his role in the conspiracy. on appeal, he adopts kamper’s argument that the 2005), and united states v. mcelheney, 630 f. supp. 2d 886 (e.d. tenn. 2009)), and concluded: been comfortable in the jail pod, he found that after kamper spread word that he was a snitch the organizer of a conspiracy, because of the difference in [his] leadership, [his] age, [his] regarding national sentencing policy. id. at 606–07. the district court also deferred to the capacity courts lack to base its determinations on empirical data and national experience, guided from the [manufacturing] process” even when they were in the house at the same time. id. at 151 not to vary because of concerns about the separation of powers, kamper, 860 f. supp. 2d at 603– (s.d.n.y. may 19, 2011), a case in which a district court had rejected the guidelines mdma-to- sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case.” id. for the foregoing reasons, we affirm the district court’s judgment with respect to [was] a recognition of district courts’ authority to vary from the crack cocaine guidelines based the government: he gave detailed testimony regarding the conspiracy’s goals and operations, and the drug. children’s health act of 2000, pub. l. no. 106-310, § 3663(b)(1), 114 stat. 1101, 1243 (2000). that the district court erred when it refused to reject the mdma-to-marijuana ratio used in the an argument that the mdma guidelines range is flawed must confront the merits of any appellant in 12-5800. luke a. mclaurin, united states attorney’s office, commission’s ratio on reasoned policy arguments, not on its lack of authority or institutional c. head’s trial and sentencing guidelines. placed to make factual findings of perjury in the first instance, even if we believe there is │ the mdma-to-marijuana ratio. however, head failed to raise this argument before the district beyond the bounds of the constitution’s vesting of the ‘judicial power of the hearing. the district court did not abuse its discretion in imposing on kamper a sentence of 144 b. substantive reasonableness the enhancement related to his role as a leader or organizer of the conspiracy. kamper argued when his “statements can be reasonably construed as a threat, even if they are not made directly purported error, regarding the mdma-to-marijuana ratio, is clearly without merit. the district k.r. 172 (kamper ltr. at 3) (page id #445). st. onge testified that, although he had initially standard of review when a district court imposes a . . . role enhancement.” united states v. “[t]he evidence at trial was sufficient to establish that mr. head not only had an idea about the guidelines range if it disagrees.” brooks, 628 f.3d at 800; see also united states v. on review. see united states v. murdock, 398 f.3d 491, 499–500 (6th cir. 2005). after an indictment was filed against him, kamper pleaded guilty. he was incarcerated mr. kamper has lived such a sheltered life that he’s never been exposed to any of (page id #1009). finally, the district court also concluded that such conduct indicated that neither that decision nor its progeny permits a federal court to extend the article 353–58 (6th cir. 2008) (finding plain-error review appropriate for a claim that the district court other inmates that st. onge was a rat and a snitch. kamper claimed that, because he had never grams of mdma, which was the equivalent of 609.375 kilograms of marijuana. see u.s.s.g. “great leeway” granted to district courts when determining whether a defendant deserves credit were heavy.” id. at 121–22 (page id #1206–07). however, they would generally “stay away 1 persuaded that the policy arguments undermining the guidelines range outweighed other kamper. therefore, although a district court must find particularly persuasive policy reasons to reject the mdma guidelines ratio in the guidelines, institutional considerations counseled against using such authority. id. at the extent it found that the guidelines ratio produced a sentence greater than necessary, it would kamper had not accepted responsibility, and it refused to apply a downward adjustment pursuant guidelines. the court also specifically recognizes that it has the authority to marijuana equivalency ratio at length. the sentencing judge heard argument from both parties at 110. defender services of eastern tennessee, inc., greeneville, tennessee, for categorical disagreement with the mdma-to-marijuana ratio.”); id. at 606 (“even if kimbrough the district court’s use of the guidelines’ mdma-to-marijuana equivalency ratio was conspirators had the education or training necessary to understand or execute the manufacturing action” against him or make him an outcast. k.r. 224 (sentencing hr’g tr. at 93–94) (page id above, we conclude that the court miscalculated head’s guidelines range. we need not address and substitute a new ratio for the rejected one, the court would not exercise that power here.”); congress and the commission and legislate a change to the drug equivalency responsibility because kamper’s behavior toward st. onge was inconsistent with such a same sentence even had it understood its authority. argues that his sentence was substantively unreasonable because the district court both weighed in mdma cases . . . the court, even assuming it had the power to legislate a new mdma-to- his sentence is greater than necessary to achieve the appropriate sentencing objectives. kamper disagreements are not a proper basis to vary.” united states v. johnson, 407 f. app’x 8, 10 (6th │ head extracted a compound naturally produced in the sassafras plant and used several toxic his “involvement with these defendants is much, much more serious than the typical leader or whether that guideline sentence is no greater than necessary to achieve the we conclude that head’s sentence must be vacated because the district court erred in applying a with the procedural arguments, kamper’s substantive arguments are without merit. the district once a district court has rejected a guidelines ratio, however, it must find some evidence, and that the ratio selected was based on disproven and discredited science. the ratio not kamper’s only objection to his sentence. at the sentencing hearing, kamper also objected to and spears permit a district court judge to reject a drug equivalency ratio . . . on policy grounds the court cannot take on the powers of congress and the commission to establish _________________ guilty. he also objected to the mdma-to-marijuana equivalency ratio contained in the illegal reentry offenses because it concluded that the sentences applied to such offenses were too available showing how many judges across the nation were sentencing outside of the guidelines h.r. 243 (trial tr. at 121–22, 152–53) (page id #1206–07, 1237–38). however, the district the court thinks instead of each individual district judge across the 3. additional procedural-reasonableness arguments however, the court determined that sentencing judges are in a superior position to apply the district court erred in applying the enhancement under either standard. applying a two-level enhancement for obstruction of justice pursuant to § 2d1.1(b)(14)(d) and a categorically from the . . . guidelines based on a policy disagreement.” united states v. kamper also argues that the district court erred in imposing a sentencing enhancement for acceptance of responsibility. witness intimidation “ordinarily indicates that the defendant has pursuant to sixth circuit i.o.p. 32.1(b) issue before sentencing each defendant: (sentencing hr’g at 51) (page id #1634). however, the conclusion that the defendant told an on appeal, both kamper and head challenge the procedural and substantive district court’s evaluation of proper policy arguments. district courts still have considerable decision in united states v. booker, 543 u.s. 220 (2005), the guidelines became merely make[s] a finding that encompasses all of the factual predicates for a finding of perjury.” united their discretion to reject guidelines ratios because of policy disagreements in “all aspects of the for the eastern district of tennessee at chattanooga that the error “does not necessarily mean that he is entitled to resentencing” if it was harmless). improperly calculating) the guidelines range, treating the guidelines as mandatory, failing to although both the transcript of the sentencing hearing and the written memorandum contain internal states v. macias-farias, 706 f.3d 775, 781–83 (6th cir. 2013). the district court failed to make johnson, 553 f.3d 990, 996 n.1 (6th cir. 2009); united states v. hazelwood, 398 f.3d 792, 801 scientific or policy-based arguments and articulate its reasons for rejecting such arguments. see in making this request, kamper in essence asks the court to step into the shoes of in kimbrough v. united states, 552 u.s. 85 (2007), the supreme court considered kamper first argues that the district court erred by misunderstanding its authority to reject commission is in a better position than this court to take into account all of the various value factual findings concerning the materiality of the matter or head’s intent, and we are “not well- head raised objections to each enhancement recommended by the probation office. the to engage in rulemaking in the sentencing context would run afoul of the important structural (sentencing hr’g tr. at 51) (page id #1634); h.r. 244 (trial tr. at 263) (page id #1348). the respect to the investigation, prosecution, or sentencing of the instant offense of conviction,” so spears v. united states, 555 u.s. 261, 264 (2009) (announcing that the “point of kimbrough id. at 609 (“thus, in the face of considerable uncertainty about both the science and policies . . . and the court will exercise its authority to use not a different ratio but select a new mdma-to-marijuana equivalency ratio to compute a more appropriate sentence, or foreclose a district court, after appropriate analysis, from sentencing a defendant convicted of an see united states v. herrera-zuniga, 571 f.3d 568, 580 (6th cir. 2009) (reasoning that the issue- commission now publishes statistics demonstrating the rate of variance from the guidelines range for drug to § 3e1.1. id. at 99–100 (page id #1009–10). the district court ultimately sentenced kamper from time to time. and there are a lot of television shows and movies about what consider his personal characteristics or to weigh properly the various § 3553(a) sentencing respect to head and remand for resentencing. was also arrested. upon searching pietzsch, law enforcement officers found a record of a fedex u.s.s.g. § 3c1.1. a defendant may obstruct justice by “committing, suborning, or attempting to 2011); united states v. lamb, 431 f. app’x 421, 423–24 (6th cir. 2011). purchased mdma from christopher hutchinson, a co-conspirator involved in the distribution a rat in jail. . . . 605. these are the very constitutional and institutional objections rejected by the supreme court the guidelines too heavily despite evidence that they overstate the seriousness of an mdma be perjurious: head’s claim that he had “no idea” how to manufacture mdma. h.r. 245 thannavong, 533 f. app’x 589, 592–94 (6th cir. 2013) (affirming a district court’s conclusion rat asshole jonathan [st. onge]!!! so now i have to look at his pathetic face every greater or less than necessary to accomplish the purposes of sentencing as stated does not also make factual findings regarding the other two elements of perjury. see united obstruction of justice and his aggravating role in the conspiracy. the sentencing guidelines “provided cash flow,” and he ensured that the process stayed “on an even keel.” id. at 116 (page head protested his innocence and went to trial. st. onge was a cooperating witness for future sentencing of adopting a new ratio in kamper’s case. k.r. 224 (sentencing hr’g tr. at 7– innocent and had “no idea” what the process of manufacturing mdma entailed. h.r. 244 (trial not seriously attempt to refute” the policy and value judgments underlying the guidelines); indicating that, even had it recognized its authority to reject the guidelines ratio on policy concluding that their courtrooms are the wrong forum for setting a [new] ratio.” johnson, 407 f. review this issue for plain error. the district court did not discuss the equivalency-ratio issue sentence that does not fairly reflect those factors.” camacho-arellano, 614 f.3d at 247 n.1. as evidence in the record that supports such findings.” id. at 783. were we to presume the 606–09. it recognized that the sentencing commission is in a better position to gather scientific i think from time to time there are even newspaper stories about cooperators and united states v. watkins, 691 f.3d 841, 851 (6th cir. 2012). to them amounts to threatening or intimidating, indirectly or directly, the person.” id. at 99 rather than the legislative function. id. at 603–06. it reasoned that courts have no authority to head’s additional arguments regarding procedural and substantive errors because an incorrect although not publicly available at the time of kamper’s sentencing, the united states sentencing no. 12-5167 usa v. kamper et al. page 11 v. the roles that each conspirator played. head also testified at his trial, maintaining that he was cannot or should not reject an aspect of the guidelines. that is, a district court confronted with to 144 months of imprisonment. id. at 134 (page id #1044). regarding the science and policy considerations underlying the ratio, and the implications for the federal public defender, boston, massachusetts, nikki c. pierce, federal guidelines sentences. united states v. vonner, 516 f.3d 382, 389–90 (6th cir. 2008) (en banc). more participants or was otherwise extensive.” u.s.s.g. § 3b1.1(b). to qualify for this in his presentence report (“psr”), kamper was held responsible for a total of 1,218.75 the probation office determined that head was responsible for 1,218.75 grams of b. kamper’s guilty plea and sentencing the district court with respect to kamper, but reverse the judgment of the district court with states v. brooks, 628 f.3d 791, 795 (6th cir. 2011). sentences must be both procedurally and court errs when it “fail[s] to appreciate the scope of its discretion” and “indicates that policy 610 (6th cir. 2009). however, no remand is required if the record establishes that the district supervisor of the entire operation.” id. at 40 (page id# 1623). it also concluded that the hearing, the district court made inconsistent findings regarding its authority to reject the mdma- necessary factual findings to support a sentencing enhancement for obstruction of justice. activities of the criminal organization may warrant an upward departure but not an nos. 12-5167/5800 f.3d 318, 321 (6th cir. 1997). “[m]anagement or supervision of the property, assets, or for a party to repeat previously made objections in order to secure the lower standard of review reasonableness of their sentences. they argue that the district court erred in applying “obvious lie” under oath is insufficient to support the sentencing enhancement if the district court _________________ of kamper’s conduct, which led others into crime, and the mitigating circumstances asserted by kamper’s sentence but vacate the judgment with respect to head’s sentence and remand that kamper had enough general experience when he spread rumors about st. onge to know that the sentencing commission to its own, more circumscribed abilities. id. at 59–60 (page id people or telling people in a jail that someone else is a rat and snitch and that bad things happen this directive is true even when congress has expressed empirical or value judgments that underlie the deleterious consequences of allowing such a practice. first, the court noted that unwarranted #1003). marijuana ratio, must decline kamper’s invitation to do so.”).4 kamper also argues for the first time in his reply brief that the district court erred by imposing a whether district courts could use their discretion to reject the crack/powder cocaine sentencing omitted), we conclude that the district court did not clearly err. facility, and he used his education and training in chemistry to devise a method of producing (2007). the district court must provide a statement of reasons sufficient “to satisfy the appellate each of the men filled a different role in the conspiracy: kamper was the court imposed a below-guidelines sentence that fairly reflects a balance between the seriousness substantively reasonable. united states v. castilla-lugo, 699 f.3d 454, 458–59 (6th cir. 2012) controlled substance.” id. at 607. thus, the district court concluded that “even assuming it had * obstructed or impeded, or attempted to obstruct or impede, the administration of justice with sentencing factors” or gave an “unreasonable amount of weight to any pertinent factor.” united no. 12-5167 usa v. kamper et al. page 15 no. 12-5167 usa v. kamper et al. page 16 pending sentencing, and by some mistake he was housed in the same jail pod as st. onge, who de novo review for legal conclusions and clear-error review for factual findings. united states v. explicitly argued that the district court misunderstood its authority, kamper raised several the conspirators sold approximately two to three ounces of mdma per month beginning iii. kamper no. 12-5167 usa v. kamper et al. page 13 explained: “i don’t see why three people could not be organizers and leaders. they each have ultimately, the district court declined to reject the ratio embraced by the guidelines and unreasonable. johnson, 407 f. app’x at 10. here, the sentencing materials read as a whole imprisonment. for resentencing of head. § 3553(a) factors). however, the district courts “are not free to cede their discretion by were passed in response to congressional policy directives rather than statistical or scientific assertion of the argument does not by itself preserve the issue for codefendants. accordingly, we no. 12-5167 usa v. kamper et al. page 17 vacate head’s sentence and remand for resentencing. iv. head “jointly the manager or supervisor of the entire operation.” h.r. 245 (sentencing hr’g tr. at 40) procedurally and substantively unreasonable. kamper argues that the mdma-to-marijuana _num=table45. because this statistical information was not available to the district court, we may not consider it reduction. kamper’s advisory sentencing range was calculated as 151 to 188 months of united states of america, thannavong, 533 f. app’x at 592–93. because we conclude that the district court’s error here is factor into the § 3553(a) analysis is not error, so long as the record shows that the district court discretion by misunderstanding its authority to reject the guidelines ratio. although he never deem it waived. united states v. perkins, 994 f.2d 1184, 1191 (6th cir. 1993). does constitute perjury, the defendant also has obstructed justice. from the guidelines ratio as follows: merited an aggravating-role enhancement pursuant to u.s.s.g. § 3b1.1. id. at 79 (page id and obstruction of justice. head argued that even though he had been in charge of found to contain 447.5 grams of mdma. kamper psr ¶ 16; head psr ¶ 16. they arrested st. │ mdma offense either in accordance with the current guidelines range or in accordance with the control over another person, and instead based its decision on the conclusion that kamper, head, no. 12-5167 usa v. kamper et al. page 19 table under the guidelines. were the court to take this step, it would reach the district court’s disagreement with kamper regarding how his personal characteristics should was cooperating with law enforcement. on august 24, 2011, kamper wrote the following letter concerns. we conclude that the district court misunderstood its authority to reject and replace a appellant in 12-5167. allison l. ehlert, ehlert appeals, el cerrito, california, for counsel’s argument that head was not eligible for the enhancement because he did not exercise no. 12-5167 usa v. kamper et al. page 6 no. 12-5167 usa v. kamper et al. page 23 camacho-arellano, 614 f.3d at 250 (recognizing the court’s authority to vary from the │ this standard when it held that deferential review applied to a district court’s application of in so holding, the court responded to a number of arguments regarding the potential january 25, 2011, kamper, head, and several other co-conspirators were indicted for conspiring different ratio which, in his judgment, corrects the disparity.”) a sentencing judge thus has the


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