United States District Court, Central District of Illinois, Springfield Division
December 4, 1995
UNITED STATES OF AMERICA, PLAINTIFF,
ROBERT BLANKENSHIP, DEFENDANT.
The opinion of the court was delivered by: Richard Mills, District Judge:
Methamphetamine — revisited.
And a mandatory minimum sentence.
This cause is before the Court on Defendant's Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
This is the Court's preliminary consideration of this matter
pursuant to Rule 4 of the Rules Governing Proceedings in the
United States District Courts Under 28 U.S.C. § 2255, which
provides: "If it plainly appears from the face of the motion
and any annexed exhibits and the prior proceedings in the case
that the movant is not entitled to relief in district court,
the judge shall make an order for its summary dismissal and
cause the movant to be notified."
This case concerns whether Blankenship was prejudiced by the
Court's failure to specifically find, at the time of
sentencing, that the offense involved d- rather than
l-methamphetamine. Although framed in terms of ineffective
assistance of counsel (a Sixth Amendment claim) the crux of
this case is the relationship of statutes and the Sentencing
For several years, the Sentencing Guidelines allowed different
sentences depending upon which isomer of methamphetamine was
involved in a criminal offense. The statute that imposes
mandatory minimum sentences for certain drug offenses, however,
treats the isomers identically.
Blankenship claims that he should have received the benefit of
the Guidelines' approach to methamphetamine sentencing. He is
unable to show that he was prejudiced, however, because this
Court complied with the mandatory-minimum statute.
Defendant Robert Blankenship was found guilty by a jury of the
sole count of the indictment, which charged that he violated
21 U.S.C. § 841(a)(1) and 846 by participating in a conspiracy
involving more than 100 grams of methamphetamine or more than
one kilogram of a mixture containing methamphetamine.*fn1
At sentencing, the Court found Blankenship responsible for
1.817235 kilograms of methamphetamine and sentenced him to the
mandatory minimum of 120 months. Blankenship's attorney
objected to the computation of drug amounts in the Presentence
Investigation Report, but he did not challenge the application
of the mandatory minimum. Blankenship appealed his conviction
but did not raise any of the arguments he raises in the instant
B. Methamphetamine Sentencing
The impact of the distinction between two forms of the drug
known as methamphetamine has been the subject of much
litigation. Defendants have raised a variety of creative
arguments for why their sentences for crimes involving
methamphetamine should be shortened. The reason for the recent
flurry of litigation is the confusing way the Sentencing
Commission chose to deal with methamphetamine. See United
States v. Cook, 49 F.3d 663, 665 n. 3 (10th Cir. 1995) ("[T]he
guidelines' entire approach to methamphetamine sentencing is
confusing and difficult to apply.").
While some points of the law in this area are open to debate,
the basic scientific and textual background of the controversy
is well established. Recently, the Third Circuit provided the
following helpful description of the precise nature of
The methamphetamine molecule, like most organic molecules,
exists in different
"isomeric" forms. Isomers "are compounds that have the same
molecular formula by different structural formulas." Harold
Hart, Organic Chemistry: A Short Course 15 (6th ed. 1983)
("Organic Chemistry Text"). Just as people are either
right-or left-handed, a molecule can sometimes exist in
right- and left-handed forms. See Organic Chemistry Text at
125-126; Roger Hegestrom & Dilip K. Kondepudi, The
Handednesss of the Universe, Scientific American, Jan. 1990,
at 108 ("Hegestrom & Kondepudi Article"); United States v.
Patrick, 983 F.2d 206, 209 (11th Cir. 1993). A molecule
"that exhibits the property of handedness" is called a chiral
molecule. The two form of the chiral molecules are called
Each enantiomer is labelled either Dextro of Levo, or D or L.
Hegestrom & Kondepudi Article at 109. . . . Although
enantiomers only differ with respect to chirality, the human
body "is highly sensitive to enantiomeric differences."
Id. . . .
Methamphetamine exists in these two isomeric forms.
L-methamphetamine is a compound that produces little or no
physiological effect when ingested. [United States v.]
Carroll, 6 F.3d [735, 743 (11th Cir. 1993)]
D-methamphetamine, on the other hand, produces the
physiological effect desired by its users. Id.
United States v. Bogusz, 43 F.3d 82
, 88-89 (3d Cir. 1994),
cert. denied sub nom O'Rourke v. United States, ___ U.S. ___,
115 S.Ct. 1812, 131 L.Ed.2d 736 (1995).
Congress did not distinguish between the two forms of
methamphetamine when it included methamphetamine offenses in
the mandatory minimum sentence provisions of
21 U.S.C. § 841(b)(1)(A). Instead of providing a mandatory minimum only for
offenses involving the powerful drug d-methamphetamine,
Congress imposed the same minimum penalty for all offenses
involving "100 grams or more of methamphetamine, its salts,
isomers and salts of its isomers or 100 grams or more of a
mixture or substance containing a detectable amount of
methamphetamine. its salts, isomers, or salts of its
isomers," 21 U.S.C. § 841(b)(1)(A)(viii) (1988) (emphasis
Under the statute, a person convicted of certain drug offenses
involving the requisite amount of "methamphetamine, its salts,
isomers and salts of its isomers" or "a mixture or substance
containing a detectable amount of methamphetamine, its salts,
isomers, or salts of its isomers . . . shall be sentenced to a
term of imprisonment which may not be less than 10 years or
more than life. . . ." 21 U.S.C. § 841(b)(1)(A). See
generally, United States v. McCusker; Nos. Crim.A. 92-33-04,
Civ. A. 95-3494, 1995 WL 613103 (E.D.Pa. Oct. 19, 1995), at *3,
*5 (describing in detail the history of methamphetamine
sentencing). Confusion over methamphetamine sentencing resulted
because, until recently, the Sentencing Guidelines provided
different base offense levels for two isomers of
methamphetamine. The Drug Quantity Table, U.S.S.G. § 2D1.1(c),
refers only to "Methamphetamine," distinguishing only between
the weight of the drug itself and of the mixture containing the
drug. The Drug Equivalency Tables (used to determine offense
levels for less common drugs and for combined amounts of
different drugs), however, refer to both "Methamphetamine" and
"L-Methamphetamine." U.S.G.G. § 2D1.1. comment (n. 10) (Drug
Equivalency Table). The ratios in the Drug Equivalency Tables
result in one gram of "Methamphetamine" being treated as the
equivalent of 25 grams of 1-methamphetamine. Id.
As a result of this approach, Courts have concluded that when
the Guidelines referred to "Methamphetamine" they meant
d-methamphetamine. See United States v. Deninno, 29 F.3d 572,
579 (10th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct.
1117, 130 L.Ed.2d 1081 (1995). That interpretation does not
carry over to § 841(b). See McCusker; 1995 WL 613103, at * 5
(noting that if the term "methamphetamine", as used in the
statute, meant only d-methamphetamine, 1-methamphetamine would
have to be considered a legal drug, something it is clearly
not). To argue that the statute imposes a mandatory minimum
sentence for offenses involving d-methamphetamine would
contradict the clear language of the statute.*fn3 Section
841 refers not to "Methamphetamine" but to methamphetamine and
its isomers — d-and l-methamphetamine. See McCusker, 1995 WL
613103, at * 5.*fn4
The Sentencing Commission recently resolved this problem with
Amendment 518, which deletes the reference to
l-methamphetamine. The Commission designed Amendment 518 to
simplify sentencing and end litigation over the type of
methamphetamine involved. See United States Sentencing
Commission, Amendments to the Sentencing Guidelines, Oct. 2,
1995, at 72. Additionally, the Commission noted that
l-methamphetamine "is a rather weak form of methamphetamine, is
rarely seen and is not made intentionally, [but] . . . results
from a botched attempt to produce d-methamphetamine." Id.
Under § 841, the mandatory minimum sentence may be imposed for
an offense involving more than 100 grams of methamphetamine or
one kilogram of a substance containing methamphetamine,
regardless of which enantiomer was involved in the offense.
See McCusker, 1995 WL 613103, at *6; United States v.
Massey, 57 F.3d 637, 638 (8th Cir. 1995) (per curiam)
("Regardless of which type of methamphetamine was going to be
manufactured in this case, the statutory mandatory minimum of
120 months would apply, and Massey could not have been
sentenced below this figure."); see also United States v.
Allison, 63 F.3d 350, 354 (5th Cir. 1995) (noting the impact
of mandatory minima and maxima on potential sentences for
methamphetamine offenses), cert. denied, ___ U.S. ___, 116
S.Ct. 405, 133 L.Ed.2d 324 (1995); United States v. Dover;
No. 94-8040, 46 F.3d 1152 (10th Cir. Jan. 4, 1995) (Table of
decisions, text in Westlaw, 1995 WL 3981 at * 3) ("The statute
. . . draws no distinction between the two forms of
methamphetamine."), cert. denied, ___ U.S. ___, 116 S.Ct. 91,
133 L.Ed.2d 47 (1995). Even before Amendment 518, the
Guidelines recognized that the mandatory minimum trumps the
guideline sentence. U.S.S.G. §§ 5G1.1(b), (c)(2).
II. ANALYSIS OF BLANKENSHIP'S § 2255 CLAIMS
Blankenship asserts three grounds for his § 2255 motion: (1)
ineffective assistance of counsel because his attorney did not
discover or raise the methamphetamine scoring issue; (2)
sentencing based on inaccurate information; and (3) miscarriage
of justice. Blankenship recognizes that he is procedurally
defaulted on all but his first claim.*fn5 As cause
for these claims he raises ineffective assistance of counsel
and what he terms "actual innocence of the sentence imposed."
Blankenship's second argument for cause is insufficient.*fn6
Therefore, the Court will discuss only Blankenship's
ineffective assistance claim.
To establish ineffective assistance of counsel, a defendant
must show that counsel performed in a deficient manner and that
counsel's deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984). A court need not address counsel's
performance first, but may proceed directly to the prejudice
inquiry. Id. at 697, 104 S.Ct. at 2069. The prejudice
standard is quite high: "The defendant must show that there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Id. at 694, 104 S.Ct. at 2068; see also United
States v. Delgado, 936 F.2d 303, 310 (7th Cir. 1991) (setting
forth the standard for reviewing claims of ineffective
assistance), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117
L.Ed.2d 137 (1992).
In addition to the question of outcome determination, the
Supreme Court recently held that, to show prejudice, a
defendant must show that counsel's errors rendered "the
proceedings . . . fundamentally unfair or unreliable. . . ."
Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180 (1993). The Seventh Circuit has also made it
abundantly clear that when ineffective assistance claims relate
to the length of the sentence imposed, prejudice requires a
significant impact on the length of the sentence. See Durrive
v. United States. 4 F.3d 548, 551 (7th Cir. 1993); cf. Scott
v. United States, 997 F.2d 340 (7th Cir. 1993) (suggesting
that defendants cannot complain collaterally about their
sentences so long as they fall within the statutorily
Blankenship cannot show that he was prejudiced by his
attorney's failure to raise the methamphetamine scoring issue.
Blankenship was not prejudiced because he received the minimum
permissible sentence. Blankenship does not argue that his
offense involved less than one kilogram of a substance
containing some type of methamphetamine. Instead, he argues
that because it is unknown whether his methamphetamine was d-
or l-methamphetamine, he should have been sentenced as if it
was l-methamphetamine, under the Guidelines' approach. But,
regardless of what type of methamphetamine was involved,
Blankenship received the proper sentence — the one required by
21 U.S.C. § 841(b). See Stone v. United States, No. 95-1153,
65 F.3d 172 (8th Cir. 1995) (Table of Decisions, text in
Westlaw, 1995 WL 492891) ("In the present case, counsel was not
ineffective for not raising the issue of the methamphetamine
type because regardless of which type was going to be
manufactured, the statutory mandatory minimum of 120 months
applied."); see also Massey, 57 F.3d at 638; McCusker, 1995
WL 613103, at * 6.
Blankenship's attempt to show prejudice also fails because he
does not allege that the substance involved in his offense was
anything other than d-methamphetamine. United States v.
Carper, No. 95-1762, 1995 WL 631730 (8th Cir. Oct. 30, 1995)
(unpublished order) (holding that absent an allegation that
"the substance involved was L-methamphetamine, or that he
believed it was," defendant was not prejudiced); see also
United States v. Stewart, No. 94-1551. 66 F.3d 339 (Table of
Decisions, text in Westlaw at 1995 WL 539473, at * 2); United
States v. Acklen, 47 F.3d 739, 744 (5th Cir. 1995) (holding
that if the defendant could "tender some specific, verified
basis or evidence, beyond his mere naked assertion or belief
that the drug was in fact l-methamphetamine," he might be
entitled to an evidentiary hearing). Blankenship does not offer
any evidence that might prove he was entitled to a lower
sentence under the Guidelines. He simply states "[i]f the issue
had been raised, the Court, in the absence of any evidence,
would have been required to
sentence Petitioner under the less harsh penalties for
L-methamphetamine. . . ."
Finally, Blankenship does not argue that counsel's failure to
raise the methamphetamine scoring issue resulted in a
fundamentally unfair and unreliable proceeding.
Blankenship cites a number of cases that hold that the
government must prove that the substance involved in an offense
is in fact d-methamphetamine before the court may impose the
more stringent penalties for that substance under the
Sentencing Guidelines. Deninno, 29 F.3d 572; United States
v. Wessels, 12 F.3d 746 (8th Cir. 1993), cert. denied, ___
U.S. ___, 115 S.Ct. 105, 130 L.Ed.2d 53 (1994); United States
v. Carroll, 6 F.3d 735 (11th Cir. 1993), cert. denied sub nom
Jessee v. United States, ___ U.S. ___, 114 S.Ct. 1234, 127
L.Ed.2d 577 (1994); United States v. Patrick, 983 F.2d 206
(11th Cir. 1993); United States v. Koonce, 884 F.2d 349 (8th
Cir. 1989). While these cases certainly provide guidance for
the Court in future methamphetamine sentencing, they do not
help Blankenship's cause. For one reason or another these cases
are inapposite. For instance, Koonce involved conduct that
occurred before mandatory minimum sentences were applied to
methamphetamine. See Koonce, 884 F.2d at 351 (noting that the
arrest occurred on February 12, 1988 — methamphetamine was
added to the mandatory minimum statute in November of 1988).
Other cases simply do not address the mandatory minimum issue.
See McCusker, 1995 WL 613103 (discounting as guidelines
driven, several cases).
Blankenship has raised two procedurally defaulted claims and
one claim of ineffective assistance of counsel in his § 2255
motion. The only legally sufficient argument Blankenship
tendered as cause for his default is ineffective assistance of
counsel. Because Blankenship received the mandatory minimum
sentence allowed for his offense, and because he has not
alleged that the substance was anything other than the
substance that he believed the Court assumed it to be,
Blankenship cannot show that he was prejudiced by his
attorney's alleged error. Because Blankenship cannot show
prejudice as a result of his procedural defaults, or as a
result of his attorney's alleged error, his motion must be
It plainly appears from the face of the motion and the prior
proceedings in this case that Blankenship is not entitled to
Ergo, Defendant's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence is DENIED.