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Drug Sentence Vacated after Defendant Presents “Some Evidence” with objection: Moore

In Moore, the court determined the defendant provided "some evidence" for his objection that was not considered by the district court.

Facts: Moore pleads to a drug case but challenged the method of finding of drug weight.

Moore plead guilty to crimes involving 21 U.S.C. 841.  One of those counts involved meth in his home. Before sentencing, the probation officer consulted a lab report from the DEA. The DEA report had an amount of the weight of meth, how much was a pure substance, and a purity level. Specifically here, the lab report found that the meth was 100% pure.

Moore objected to the PSR’s recommended offense level of 30.  He argued that without more suitable evidence of how the purity was established, the court should treat the weight of drugs as a mixture containing meth. This would drastically reduce his offense level and his guideline range of punishment (55.6 grams of “actual meth” is an offense level of 30, whereas 55.6 grams of “a substance containing meth” is an offense level of 24)

Moore submitted an affidavit from a chemist that explained that exact purity could not be determined with the DEA’s method and that the purity level of the drugs could be lower than what was reported.

The government did not submit any additional evidence and argued that the affidavit was not conclusive that the government’s procedures were improper or led to a bad result and that the DEA’s testing procedures were well accepted in the scientific community. Critically, the government did not submit any additional evidence.

The court sided with the government, citing that Moore could have had an independent test and that the DEA protocols were well accepted among the scientific community.  Moore’s guideline range was 130-162 months, and Moore was sentenced to 120 months.

Appeal:  Moore Presented "Some Evidence"

On appeal, the Seventh Circuit noted that Moore had a right to be sentenced based on reliable information and that the government’s submitted DEA results were not supported by any affidavit. When the reliability was questioned, the government rested on the assumption that the DEA has reliable and generally accepted methods of testing drug purity.

The Seventh Circuit noted that the district court stated that there was no indication that the protocols were not reliable, but that does not consider that Moore submitted a report from a chemist. This meets the “some evidence” standard.

The court noted that the lab report only contained a brief explanation of the process involved. But that explanation “is all but opaque to generalist judges without substantial background in organic chemistry.”

Finally, the court was not persuaded by the government’s statements that requiring the prosecutors to demonstrate the reliability of the drug analysis would waste resources and allow defendants to clog up the courts. Many accused persons will have reason to know if contesting the purity would be worthwhile. The “some evidence” standard will weed out most objections.

The Seventh Circuit Vacated the Ruling and Remanded the case back down for resentencing. No. 21-2485

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