Opinion
NO. 00-336
July 17, 2001
ORDER AND REASONS
Before the Court is defendant Jon Quinones' Motion for Correction of Recommended Sentencing Guidelines. For the following reasons, the defendant's motion is DENIED.
BACKGROUND
Jon Quinones was indicted in a three-count superseding indictment on charges of distribution of cocaine base and cocaine hydrochloride. Quinones has pled guilty to the indictment and is scheduled to be sentenced on July 18, 2001. On October 25, 2000, Mary Gay, a forensic chemist for the Drug Enforcement Agency, weighed the drugs seized from Quinones. Gay found that the weight of the cocaine base charged in Count One was 3.5 grams, the cocaine hydrochloride charge in Count Two was 51.5 grams, and the cocaine base charge in Count Three was 52.9 grams. On January 18, 2001, Quinones pled guilty to all counts of the superseding indictment and signed a factual basis which set forth the drug weights as determined by Gay.
For purposes of sentencing, Quinones contests the accuracy of the Government's determination that the cocaine base charged in Count Three weighs 52.9 grams. On June 28. 2001, Quinones retained Dr. Augustine S. Aruna, Doctor of Pharmacy, to re-weigh the contested drugs. Aruna determined that the crack cocaine involved in Count Three weighs 46.82 grams. The Government argues that Aruna's measurement is inaccurate because (1) a significant amount of water evaporated from the crack cocaine between the time it was originally weighed in October 2000 and the time it was re-weighed in June 2001, (2) a portion of the crack was used for testing at the DEA laboratory and could not be replaced, (3) mass was lost each time the cocaine was removed from its packaging to be re-weighed, and (4) the scale used by Dr. Aruna was not calibrated.
Although Quinones did not challenge the drug weight at his rearraignment, he is entitled to do so at sentencing. See United States v. Naranjo, 755 F. Supp. 46 (D.R.I. Feb. 1, 1991) (holding that the quantity of cocaine in defendant's possession was not critical for purposes of trial or entry of guilty plea, but became important only for purposes of sentencing, at which time it could be contested).
LAW AND ANALYSIS
"At sentencing, the Government bears the burden of proving by a preponderance of the evidence the quantity of drugs chargeable to a defendant or defendants." United States v. Thomas, 11 F.3d 620, 631 (6th Cir. 1993). See also United States v. Rios-Quintero. 204 F.3d 214, 219 (5th Cir. 2000) (holding that the Government bears the burden of proving drug quantity). The Government has submitted the affidavit of Mary Gay, the forensic chemist at the DEA who originally weighed the crack cocaine involved in Count Three of the superseding indictment. Gay received a Bachelor of Science Degree in Chemistry from the University of Texas in 1997, has participated in several DEA chemistry training courses, has testified as an expert witness numerous times over the past two years, and has analyzed over 800 drug exhibits. The Court finds that GayiZ qualified as an expert in forensic chemistry.
In her affidavit, Gay states that (1) a substantial amount of water is used to convert cocaine hydrochloride and that it is common for that water to evaporate over time causing a loss of mass, (2) a portion of the cocaine base was used for testing could not be replaced for reweighing, (3) mass was lost each time the cocaine base was removed from its packaging to be reweighed, and (4) the scale used by Dr. Aruna for re-weighing was snot calibrated. In response to Gay's findings, Quinones argues that (1) there is no evidence that evaporation did in fact occur, (2) that nine-tenths of a gram was used for testing and can be added to Aruna's measurement, (3) that Gay was present at the reweighing to witness whether any drugs were lost, and (4) that Aruna's scale only exhibited a variance of .03 grams.
In light of the fact that Dr. Aruna weighed the drugs over eight months after Gay, the Court accepts Gay's opinion that evaporation and water caused the discrepancy between the first and second weighing. Accordingly, Quinones' Motion for Correction of Recommended Sentencing Guidelines is DENIED.