Tenth Circuit enforces need for proper guideline calculation

The Tenth Circuit discusses at length post-Booker sentencing realities today in US v. Todd, No. 06-6334 (10th Cir. Feb. 12, 2008) (available here).  That discussion starts this way:

On two separate occasions, police apprehended Jared Lee Todd and recovered from him small vials that contained, in total, approximately 37 grams of methamphetamine. In conversations with police, Mr. Todd admitted that his drug dealings went much further, and that he had purchased for redistribution at least two ounces of methamphetamine every month over the last year (680.4 grams in total).  Other facts presented to the district court tended to confirm Mr. Todd’s admission.  After a jury convicted Mr. Todd of two counts of possessing methamphetamine with intent to distribute, the district court, in calculating the total attributable drug quantity for purposes of the United States Sentencing Guidelines, used only the 37 grams of methamphetamine actually confiscated from Mr. Todd. The court then proceeded to expressly rely on the recommended sentencing Guidelines range for that amount in assigning a sentence to Mr. Todd.

While the Supreme Court’s recent opinion in Gall v. United States, 128 S. Ct. 586 (2007), underscores the discretion district courts are properly due in sentencing, it also reiterates that courts must begin their analysis by calculating correctly the applicable Guidelines sentencing range.  Though a district court may choose ultimately to depart or vary from the Guidelines, a properly calculated Guidelines range is, the Court explained, “the starting point and the initial benchmark” in any sentencing decision. Id. at 596. In this case, all of the evidence on record, including testimony of Mr. Todd’s own admission, indicated that he possessed with the intent to distribute quantities of methamphetamine far in excess of 37 grams.  In light of this overwhelming evidentiary imbalance, we are obliged to hold that the district court’s use of that drug quantity when calculating the advisory Guidelines range was clearly erroneous, and, given its reliance on the Guidelines when passing sentence, we cannot say the court’s error was harmless.