Sentencing – Drug quantity

Listen to this article

Sentencing
Drug quantity

It was error for the district court, in calculating drug quantity for drug dealers who made only wholesale sales, to base the sentence on the quantity that would be sold by the retailers after diluting the product.

“There was insufficient evidence that the retailers to whom the defendants sold heroin and fentanyl were, so far as their relation to the defendants was concerned, anything more than buyers. The government points out that the defendants ‘specifically sought out, and received, information about [the retailers’] heroin business . . . and thus purposefully kept apprised of their operation. For instance, they asked specific questions about how much money [one of the retailers] made from the heroin he obtained from them’ and informed them that ‘the “new heroin” [which was actually fentanyl] could be diluted even further.’ All this just shows a wholesaler’s natural motivation to gauge demand for his product and if possible increase that demand and so be able to raise his price. The government also notes that the defendants were ‘exclusive supplier[s]’ of the retailers and therefore had a ‘vested interest in the success and profitability’ of the operation. But exclusive dealing is common and every wholesaler has a vested interest in the success of his retailers. And finally the fact that the buyers diluted the fentanyl they received (and that this was foreseeable to the defendants) no more proved a conspiracy than the fact that a seller of chocolate syrup to a soda fountain knows that the syrup will be mixed with milk or soda to make chocolate milk shakes or chocolate sodas rather than being sold in its original, undiluted form makes the seller a conspirator in the retail sale of adulterated chocolate drinks.”

Affirmed in part, and Vacated in part.

10-1613, 10-1616 & 10-1757 U.S. v. Alvarado-Tizoc

Appeals from the United States District Court for the Northern District of Illinois, Kendall, J., Posner, J.

Full Text