FILED
NOT FOR PUBLICATION SEP 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30414
Plaintiff - Appellee, D.C. No. 3:09-cr-00062-JWS-1
v.
MEMORANDUM *
MICHAEL JAMES LEWIS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted July 30, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Michael James Lewis appeals the sixty-month sentence imposed after he
pled guilty to three counts of distributing methamphetamine in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C). He argues that the district court incorrectly
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
calculated drug quantity under U.S.S.G. § 2D1.1 and that it incorrectly applied the
18 U.S.C. § 3553(a) factors. We affirm.
We review the district court’s interpretation of the Sentencing Guidelines de
novo. United States v. Stoterau, 524 F.3d 988, 997 (9th Cir. 2008). The district
court did not err in reading the Guidelines to require combining the
l-methamphetamine and the d-methamphetamine that Lewis distributed when it
determined the amount of actual methamphetamine involved in Lewis’s offenses.
In 1995, the Sentencing Commission amended the Guidelines to “delete[] the
distinction between d- and l-methamphetamine in the Drug Equivalency Tables in
the Commentary to § 2D1.1.” U.S.S.G. app. C, amend. 518 (Nov. 1, 1995)
[hereinafter Amendment 518]. L-methamphetamine is now, in general, “treated the
same as d-methamphetamine” for sentencing purposes. Id. The specific reference
to d-methamphetamine in the Guidelines’ definition of “ice” does not undermine
Amendment 518’s general rule of equal treatment, but merely carves out an
exception to it in a limited context.
We reject Lewis’s claim, to the extent he raises it, that Amendment 518 is
unconstitutional because it is not rationally related to a legitimate government
interest. See, e.g., United States v. Fine, 975 F.2d 596, 604 (9th Cir. 1992) (en
banc) (“The Due Process Clause of the Fifth Amendment precludes the imposition
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of punishment based on arbitrary distinctions, and, in the sentencing context,
‘essentially duplicates’ an argument based on equal protection.”). Treating all
forms of methamphetamine alike is rationally related to the Commission’s asserted
and legitimate interests in simplifying guideline application and reducing litigation
over whether any given methamphetamine is of the d- or l- variety. See
Amendment 518.
The district court did not misapply the 18 U.S.C. § 3553(a) factors when it
declined to hear expert testimony on the differences between d- and l-
methamphetamine. We review a decision not to hold an evidentiary hearing at
sentencing for abuse of discretion. United States v. Pearson, 274 F.3d 1225, 1234
(9th Cir. 2001). The district court here determined that the proffered expert
testimony—which sought to prove l-methamphetamine’s relative
innocuousness—would be relevant to its § 3553(a) analysis only if Lewis could
establish that he had intended to distribute l-methamphetamine. The court invited
Lewis to establish that this was his intention, and Lewis explicitly declined to do
so. The court did not abuse its discretion in concluding, as a result, that the
testimony Lewis sought to introduce was irrelevant or in excluding it on that basis.
AFFIRMED.
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