On February 21, 2006, this Court issued a decision on Defendant Kevin Martin's prior appeal from his sentence. See United States v. Martin, 438 F.3d 621 (6th Cir. 2006) (" Martin I"). The substance of that Opinion will be addressed more fully below, but because the essential facts have not changed, we repeat below Section I.B. from this Court's prior Opinion:
As we have explained before, "[p]rior to Booker, sentences outside of the Guideline range were severely limited; now, `with greater latitude' a `district court need only consider [the Guideline range] along with its analysis of the section 3553(a) factors.'" United States v. Martin, 438 F.3d 621, 641 (6th Cir. 2006) (Martin, J., concurring) (quoting McBride, 434 F.3d at 476). Additionally,
In the Sixth Circuit, the terms "same occasion" and "common scheme" employed in the Commentary to § 4A1.2 had, even by the time Horn was sentenced in this Court, been construed so narrowly as to drive exceptions based upon them virtually into extinction. See, e.g., United States v. Martin, 438 F.3d 621, 640 (6th Cir. 2006) (Martin, J., concurring) ("We have reached the point, I believe, that only truly simultaneous crimes — which rarely, if at all, exist — or those crimes with explicit evidence that they were planned together, will render offenses `related.'"). In addition, the term "consolidated" under the Guidelines in effect at the time of Horn's sentencing had sparked significant confusion and inconsistency, with some circuits interpreting the term "consolidated" as requiring a formal order of consolidation, regardless of whether the crimes were actually tried in the same suit or sentenced in one proceeding, while others did not. The Sixth Circuit, like most other appellate courts, had held that, in the absence of a formal consolidation order, defendants must show something more than just a single sentencing hearing or a concurrent sentence to establish that sentences were "related," even where a formal consolidation order was not necessarily required.
In arguing that his 70-month prison sentence is procedurally unreasonable, Harris contends that the district court erred by not basing its heroin/fentanyl conversion on scientific or law-enforcement data. Harris relies entirely upon this court's decision in United States v. Martin, 438 F.3d 621 (6th Cir. 2006). In Martin, the defendant challenged the validity of Guidelines ratios used to estimate the amount of methamphetamine that can be manufactured from a precursor chemical (pseudoephedrine), arguing that the Sentencing Commission had failed to follow a statutory command that such ratios be "based on scientific, law enforcement, and other data the Sentencing Commission considers appropriate."
In United States v. Stacy we noted that the Sentencing Commission had based its ratio of pseudoephedrine to methamphetamine on the typical yield from clandestine laboratories. 769 F.3d 969, 977 (7th Cir. 2014); see also United States v. Martin, 438 F.3d 621, 625 (6th Cir. 2006) (discussing Sentencing Commission's adoption of conversion ratio for pseudoephedrine to methamphetamine). In Stacy we also rejected the notion that Congress obviously viewed pseudoephedrine crimes as less serious than manufacturing methamphetamine.
He contends that the court should have addressed whether the United States Sentencing Commission's adoption of a yield ratio of 50% for conversion of pseudoephedrine to methamphetamine unfairly results in stiffer punishment for those who procure pseudoephedrine than for those who actually make methamphetamine. See U.S.S.G. § 2D1.1, cmt. n. 8(D) (listing conversion ratios to marijuana of 1g to 10kg for pseudoephedrine and 1g to 20kg for actual methamphetamine); United States v. Martin, 438 F.3d 621, 625 (6th Cir.2006) (discussing adoption of 50% yield ratio). Stacy does contend that the probation officer miscalculated the base offense level for count one by converting the amount of pseudoephedrine directly into an amount of marijuana.
Plain error review entails first determining whether there was an error in the district court. United States v. Martin, 438 F.3d 621, 628 (6th Cir. 2006) (quoting United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993)). If there was no error, the analysis ends.
Until 2000, district courts did something akin to what Vaughn suggests. Instead of converting pseudoephedrine directly to its marijuana equivalent, courts relied on expert testimony to approximate the amount of methamphetamine that each defendant convicted of a manufacture-related offense could produce from pseudoephedrine. See United States v. Martin, 438 F.3d 621, 625 (6th Cir. 2006). The estimated conversion ratio used by courts was therefore tailored to individual circumstances instead of uniform across all defendants. See id. at 626 (citing United States v. Hamilton, 81 F.3d 652, 654 (6th Cir. 1996)).
21, 2000)), by" replacing "the individualized determination of how much of a controlled substance certain chemicals would yield" for sentencing in federal methamphetamine cases, with conversion ratios for " ‘the quantity of controlled substance that could reasonably have been manufactured ... determined by using a table of manufacturing conversion ratios for ... pseudoephedrine, which table shall be established by the Sentencing Commission based on scientific, law enforcement, and other data the Sentencing Commission considers appropriate .’ Pub. L. No. 106-310, § 3651(b), 114 Stat. 1238 -39 (2000)." United States v. Martin , 438 F.3d 621, 624-25 (6th Cir. 2006) (emphasis added by court). "These tables adopt a 50% conversion ratio for pseudoephedrine, such that [two] grams of the chemical is equivalent to [one] gram of methamphetamine.
Absent "clear evidence to the contrary," we must "presume that [public officials] have properly discharged their official duties." United States v. Martin , 438 F.3d 621, 634 (6th Cir. 2006) (alteration in original) (quoting United States v. Chem. Found., Inc. , 272 U.S. 1, 14–15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) ); see also U.S. Postal Serv. v. Gregory , 534 U.S. 1, 10, 122 S.Ct. 431, 151 L.Ed.2d 323 (2001) ("[A] presumption of regularity attaches to the actions of Government agencies."); Jones v. FBI , 41 F.3d 238, 242 (6th Cir. 1994) ("[A]gency actions ... are normally entitled to a presumption of good faith."); Comprehensive Health of Planned Parenthood Great Plains v. Hawley , 903 F.3d 750, 756 (8th Cir. 2018) (holding that courts must presume state officials will act in good faith when state law grants them discretion to waive regulations on abortion facilities). The district court made no findings of fact as to whether the Inspector General would act in good faith; instead it assumed that the Inspector General would act based on "whim."