FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MATTHEW STEWART,

Defendant-Appellant.

No. 13-10048

D.C. No.

2:10-cr-00564-

LDG-VCF-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Lloyd D. George, District Judge, Presiding

Argued and Submitted

March 11, 2014—San Francisco, California

Filed July 31, 2014

Before: Sidney R. Thomas, Raymond C. Fisher

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Fisher
2 UNITED STATES V. STEWART

SUMMARY*

Criminal Law

Affirming a sentence for distributing a controlled

substance, the panel reaffirmed this court’s holding that

because 18 U.S.C. § 944(h) does not limit career offender

status under the Sentencing Guidelines to defendants with

two predicate federal convictions, the Sentencing

Commission did not exceed the scope of its delegated

authority by including prior state convictions as an additional

basis for career offender status.

The panel also held that the district court was mistaken

about the impact of the purity of the controlled substance, but

that the defendant’s sentence was nonetheless reasonable

under the totality of the circumstances.

COUNSEL

Jeremy M. Delicino, Salt Lake City, Utah, for DefendantAppellant.

Peter S. Levitt (argued), Assistant United States Attorney,

Elizabeth O. White, Appellate Chief, Daniel G. Bogden,

United States Attorney, Las Vegas, Nevada, for PlaintiffAppellee.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. STEWART 3

OPINION

FISHER, Circuit Judge:

Matthew Stewart pled guilty to two counts of distributing

a controlled substance in violation of 21 U.S.C. § 841(a)(1). 

Because he had two prior state felony convictions for

controlled substance offenses, the district court sentenced him

as a career offender. See United States SentencingGuidelines

Manual (U.S.S.G.) §§ 4B1.1, 4B1.2. Stewart appeals his

sentence, arguing that the Sentencing Commission exceeded

its statutory authority under 28 U.S.C. § 994(h) by including

state convictions as predicate offenses for purposes of

defining a career offender. He further contends his sentence

is substantively unreasonable because of the very low purity

of the controlled substance he sold and the career offender

guidelines’ over-representation of his criminal history. We

once again hold that the Commission’s career offender

guidelines are a permissible interpretation of the relevant

statutes. See United States v. Rivera, 996 F.2d 993, 994–97

(9th Cir. 1993). We further conclude that the district court

was mistaken about the impact of the purity of the controlled

substance, but that Stewart’s sentence was nonetheless

reasonable under the totality of the circumstances. We

therefore affirm.

I

In July 2010, federal Drug Enforcement Agency (DEA)

officers learned from a confidential source that Stewart was

potentially a “gallon producer” and distributor of gammahydroxybutyric acid (GHB). Acting on this tip, the DEA

initiated a series of controlled buys of GHB from Stewart. 

On three separate occasions over the next several months,
4 UNITED STATES V. STEWART

Stewart sold water bottles – each containing a detectable

amount of GHBdissolved in water – to an undercover officer:

a single water bottle for $160; eight water bottles for $1,700;

and 16 water bottles containing approximately two gallons of

total liquid for an unknown price. Agents arrested Stewart

and conducted a search of his residence, where they seized

additional water bottles containing liquid with a detectable

amount of GHB. Laboratory testing on all of the seized

bottles confirmed the presence of GHB in 11,359 milliliters

of total liquid, or about three gallons.

Stewart pled guilty to two counts of distributing a

controlled substance under 21 U.S.C § 841(a)(1). Absent

application of the career offender guidelines, Stewart would

have had a criminal history category of III. But because

Stewart had two prior state felony convictions for drug

distribution, he qualified as a career offender with an

automatic criminal history category of VI. See U.S.S.G.

§ 4B1.1(a)–(b). Stewart’s first conviction was for the sale of

ecstasy tablets in 2002, and his second was for the sale of

cocaine in 2005. Based on the 20-year statutory maximum

term of imprisonment for the offense to which Stewart pled

guilty, 21 U.S.C. § 841(b)(1)(C), the career offender

guidelines reset Stewart’s offense level to 32, see U.S.S.G.

§ 4B1.1(b)(3). Applying a criminal history category of VI

and a three-level downward adjustment for acceptance of

responsibility, the district court calculated a guidelines range

of 151 to 188 months of imprisonment. Although the district

court found that a sentence within this range would be

appropriate, it nonetheless sentenced Stewart to 120 months’

imprisonment. Stewart timely appealed his sentence. 
UNITED STATES V. STEWART 5

II

The Sentencing Commission’s authority for the career

offender guidelines rests on 28 U.S.C. § 994. Section 994(h)

directs the Commission to “assure” that the guidelines specify

a sentence “at or near” the statutorymaximum for a defendant

who: (1) has been convicted of a crime of violence or a

controlled substance offense; and (2) has two or more prior

felony convictions, each of which is a crime of violence or a

controlled substance offense. See 28 U.S.C. § 994(h).

Carrying out this mandate, the Commission promulgated

the career offender guidelines, which categorize an adult

defendant as a “career offender” when the defendant (1) is

convicted of “a felony that is either a crime of violence or a

controlled substance offense” and (2) “has at least two prior

felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 4B1.1(a); see also

United States v. Mitchell, 624 F.3d 1023, 1026 (9th Cir.

2010). The guidelines define a “controlled substance

offense” as “an offense under federal or state law” that

“prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance,” or possession of a

controlled substance with the intent to do the same. U.S.S.G.

§ 4B1.2(b).

Stewart acknowledges that he was properlycategorized as

a career offender under the guidelines, based on his federal

conviction for distributing GHB and his two prior state drug

distribution convictions. See U.S.S.G. §§ 4B1.1, 4B1.2. He

argues, however, that the career offender guidelines are

invalid because they conflict with the plain language of

§ 994(h), which he interprets as requiring a guidelines

sentence at or near the statutory maximum only for
6 UNITED STATES V. STEWART

defendants with two prior federal, not state, drug trafficking

convictions. His argument relies on the language of § 994(h),

which specifies career offender treatment only for a defendant

who has two or more previous convictions for a controlled

substance offense “described in” certain federal controlled

substances statutes:

The Commission shall assure that the

guidelines specify a sentence to a term of

imprisonment at or near the maximum term

authorized for categories of defendants in

which the defendant is eighteen years old or

older and –

(1) has been convicted of a felony that is –

(A) a crime of violence; or

(B) an offense described in section 401 of

the Controlled Substances Act (21 U.S.C.

841), sections 1002(a), 1005, and 1009 of

the Controlled Substances Import and

Export Act (21 U.S.C. 952(a), 955, and

959), and chapter 705 of title 46; and

(2) has previously been convicted of two or

more prior felonies, each of which is –

(A) a crime of violence; or

(B) an offense described in section 401 of

the Controlled Substances Act (21 U.S.C.

841), sections 1002(a), 1005, and 1009 of

the Controlled Substances Import and
UNITED STATES V. STEWART 7

Export Act (21 U.S.C. 952(a), 955, and

959), and chapter 705 of title 46.

28 U.S.C. § 994(h). On the strength of this language, Stewart

argues that the Commission exceeded its authority when it

adopted guidelines imposing career offender status for

previous state controlled substance convictions.

We rejected this veryargument in United States v. Rivera,

996 F.2d 993, 994–97 (9th Cir. 1993), and we now reaffirm

Rivera’s continuing validity. In Rivera, we held that the

guidelines were a “sufficiently reasonable” interpretation of

the ambiguous language of § 994(h), because this section is

not limited to predicate offenses under federal law but

extends to conduct involving controlled substances that could

have been charged federally. See id. We further noted that

the career offender guidelines were consistent with Congress’

intent to punish repeat drug traffickers regardless of whether

their predicate convictions were state or federal. See id. at

996.

Stewart argues that Rivera cannot be reconciled with the

Supreme Court’s subsequent decision in United States v.

LaBonte, 520 U.S. 751 (1997), because Rivera applied an

erroneous standard of review. We do not agree that LaBonte

undermines Rivera’s holding. LaBonte held that the

Commission’s definition of “offense statutory maximum” in

§ 4B1.1 was invalid because it was “at odds with the plain

language” and “ordinary meaning” of 28 U.S.C. § 994(h). 

520 U.S. at 756, 757 (quoting Moskal v. United States,

498 U.S. 103, 108 (1990)) (internal quotation marks omitted). 

The Court noted that “Congress has delegated to the

Commission ‘significant discretion in formulating’” the

sentencing guidelines, but the Commission’s promulgations
8 UNITED STATES V. STEWART

must nonetheless “bow to the specific directives of

Congress.” Id. at 757 (quoting Mistretta v. United States,

488 U.S. 361, 377 (1989)); see also United States v. Tercero,

734 F.3d 979, 982 (9th Cir. 2013) (explaining that LaBonte

invalidated a guidelines provision as being “in direct conflict”

with the authorizing statute).

Admittedly, we applied a different standard of review in

Rivera, asking “whether the Sentencing Guideline [was]

‘sufficiently reasonable’ in light of the congressional

directive to the Commission,” 996 F.2d at 994, rather than

whether there was a direct conflict with the statute. 

Nevertheless, our inquiry was consistent with the analysis

applied in LaBonte because a guideline that constitutes a

“sufficientlyreasonable” interpretation of the enabling statute

cannot be in direct conflict with the statute’s plain mandate.

In Rivera, we first found § 994(h) to be ambiguous,

because “it is not at all clear that Congress intended to

exclude state [controlled substance] convictions” as predicate

offenses triggering career offender status. 996 F.2d at

995–96. Only then did we conclude that the Commission’s

interpretation was a sufficiently reasonable implementation

of congressional intent. See id. Although § 994(h) could be

interpreted as Stewart prefers – that career offender status

does not depend on prior state felony convictions – there is no

direct conflict between the Commission’s contrary

interpretation and section 994(h)’s plain language. See id. at

995; see also United States v. Beasley, 12 F.3d 280, 283 (1st

Cir. 1993) (holding that a “literal reading” of this section

supports the Commission’s interpretation); United States v.

Whyte, 892 F.2d 1170, 1174 (3d Cir. 1989) (holding that the

Commission’s interpretation “is authorized, if not required,

by section 994(h)”). Because Rivera is not “clearly
UNITED STATES V. STEWART 9

irreconcilable with the reasoning or theory” of LaBonte, we

remain bound by its holding. Miller v. Gammie, 335 F.3d

889, 893 (9th Cir. 2003) (en banc).1

Even if we were free to reconsider Rivera, we would

reach the same result. As we explained there, “the language

of § 994(h) suggests that the predicate drug convictions need

not be federal as long as they are for conduct that could have

been charged federally.” 996 F.2d at 996 (citing Whyte,

892 F.2d at 1174). We reasoned that:

Section 994(h)(2)(B) provides that offenses

“described in” the federal statutes listed in

that subsection serve as predicates for career

offender status. If Congress had intended

only federal offenses to serve as predicates for

career offender status, it could have done so

by providing that only “convictions obtained

under” the federal statutes would be the basis

for career offender status. The fact that

Congress used the words “described in”

indicates the focus is not upon whether the

predicate offense is federal or state; rather, the

focus is upon the type of conduct involved.

1 Since LaBonte, we have consistently upheld the sentences of

defendants who were classified as career offenders based on their prior

convictions for state felony controlled substance offenses, without

commenting on the validity of the guidelines. See, e.g., United States v.

Lee, 704 F.3d 785, 788–92 (9th Cir. 2012); Mitchell, 624 F.3d at 1027;

United States v. Charles, 581 F.3d 927, 934 (9thCir. 2009); United States

v. Crawford, 520 F.3d 1072, 1077–80 (9th Cir. 2008); United States v.

Sandoval-Venegas, 292 F.3d 1101, 1106–07 (9th Cir. 2002). This

consistent enforcement of the guidelines is a further indication that

LaBonte did not disturb our holding in Rivera.
10 UNITED STATES V. STEWART

Id.2 Thus, the career offender guidelines, which include

controlled substance offenses under both federal and state law

as qualifying predicate offenses, are “consistent with the type

of conduct Congress intended to penalize” in § 994(h). Id.

(emphasis added). Every other circuit to consider this

question agrees. See United States v. Jemine, 555 F. App’x

624, 625 (7th Cir. 2014); United States v. Najar, 225 F.3d

660, 2000 WL 799331, at *3 (6th Cir. 2000) (unpublished

table decision); United States v. Gonsalves, 121 F.3d 1416,

1417–19 (11th Cir. 1997); United States v. Brown, 23 F.3d

839, 840–41 (4th Cir. 1994), abrogated on other grounds by

Koon v. United States, 518 U.S. 81 (1996); United States v.

Consuegra, 22 F.3d 788, 789–90 (8th Cir. 1994); Beasley,

12 F.3d at 282–84; Whyte, 892 F.2d at 1174.

Our post-Rivera decision in United States v. Heim,

15 F.3d 830 (9th Cir. 1994), offers a further reason for

rejecting Stewart’s challenge. We stated there that Congress

did not intend § 994(h) to establish “an exhaustive list . . . of

[the] types of cases in which terms at or close to authorized

maxima should be specified.” Id. at 832 (quoting S. Rep. No.

98-225 (1983)) (internal quotation marks omitted). On the

contrary, § 994(h) establishes only “the minimum obligation

of the Commission,” United States v. Damerville, 27 F.3d

254, 257 (7th Cir. 1994), or “the irreducible minimum that

the Commission must do by way of a career offender

guideline,” United States v. Piper, 35 F.3d 611, 618 (1st Cir.

2 Section 994(h) “provides a narrow list of drug offenses that require the

‘at or near the maximum’ career offender treatment, including distribution

under [21 U.S.C.] § 841, importation of certain controlled substances

under 21 U.S.C. § 952(a), and manufacturing and distributing on board

vessels under 46 U.S.C. § 70503.” United States v. Knox, 573 F.3d 441,

448 (7th Cir. 2009).
UNITED STATES V. STEWART 11

1994). Under its extensive statutory authority to develop the

guidelines, see 28 U.S.C. § 994(a)–(f); United States v.

Mendoza-Figueroa, 65 F.3d 691, 692 (8th Cir. 1995) (en

banc), the Commission may go beyond the minimum

requirements of § 994(h), so long as the resulting guidelines

do not conflict with any “specific directives of Congress,”

LaBonte, 520 U.S. at 757. Thus, because section 994(h) does

not limit career offender status to defendants with two

predicate federal convictions, the Commission did not exceed

the scope of its delegated authority by including prior state

convictions as an additional basis for career offender status. 

Cf. Heim, 15 F.3d at 832.

III

Stewart also challenges the substantive reasonableness of

his 120-month sentence. Neither party challenges the district

court’s sentencing procedure, so we evaluate the substantive

reasonableness of Stewart’s sentence under an abuse of

discretion standard. See United States v. Edwards, 595 F.3d

1004, 1014 (9th Cir. 2010). We consider the totality of the

circumstances, including the degree of the court’s variance

from the guidelines sentencing range and its discretionary

weighing of the factors set forth in 18 U.S.C. § 3553(a). See

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc). “[A]lthough the ‘Guidelines should be the starting

point and the initial benchmark,’ district courts may impose

sentences within statutory limits based on appropriate

consideration of all of the factors listed in § 3553(a), subject

to appellate review for ‘reasonableness.’” Pepper v. United

States, 131 S. Ct. 1229, 1241 (2011) (quoting United States

v. Gall, 552 U.S. 38, 49–51 (2007)). “[W]e may reverse if,

upon reviewing the record, we have a definite and firm

conviction that the district court committed a clear error of
12 UNITED STATES V. STEWART

judgment in the conclusion it reached upon weighing the

relevant factors.” United States v. Ressam, 679 F.3d 1069,

1087 (9th Cir. 2012) (en banc) (quoting United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009))

(internal quotation marks omitted).

There is no dispute that Stewart’s third drug distribution

conviction qualified him as a career offender under the

guidelines. As a career offender, Stewart’s offense level was

set by reference to the 20-year statutorymaximum penalty for

distributing GHB, a penalty that applies regardless of the

quantity or purity of GHB involved in the offense. See

U.S.S.G. § 4B1.1(b)(3); 21 U.S.C. § 841(b)(1)(C).3 Based on

this offense level and the criminal history category of VI

imposed by the career offender guidelines, the district court

correctly calculated Stewart’s guidelines range as 151 to 188

months’ imprisonment, after a three-level downward

adjustment for acceptance of responsibility.

Acknowledging its authority to depart below this

recommended sentencing range, the court imposed a 120-

month sentence, 31 months below the low end of the

applicable career offender guidelines range. Stewart

3

In this respect, GHB is different from other controlled substances. For

many controlled substances, including marijuana, cocaine,

methamphetamine and heroin, the statutory maximum is tied to the

quantity of drugs involved in the offense. See 21 U.S.C.

§ 841(b)(1)(A)–(B), (D). As a consequence, the offense level under the

career offender guidelines for offenses involving these drugs may increase

as drug quantity increases. See U.S.S.G. § 4B1.1(b). For GHB, however,

there is a single statutory maximum of 20 years regardless of the quantity

of GHB involved. Thus, for purposes of determining Stewart’s offense

level under the career offender guidelines, the quantity of GHB involved

in his offense is immaterial.
UNITED STATES V. STEWART 13

nevertheless argues that his sentence is unreasonable because

of (1) the very low purity of the GHB mixture involved in the

offense; (2) the career offender guidelines’ overrepresentation of the seriousness of his criminal history and

risk of recidivism; and (3) the systemic shortcomings of the

career offender provisions as applied in any case, including

his.

The district court explicitly considered and rejected

Stewart’s arguments in light of the guidelines and the

§ 3553(a) factors, making an “individualized assessment

based on the facts presented.” Gall, 552 U.S. at 50. As we

shall explain, the district court was likely mistaken in its

assumption about the significance of the GHB mixture’s

purityunder the non-career offender guidelines. Nonetheless,

we affirm the reasonableness of Stewart’s sentence under the

totality of the circumstances. Stewart was indisputably a

career offender, and the district court correctly calculated his

applicable guidelines range and otherwise evaluated the

relevant factors in sentencing him to a below-guidelines

sentence.

A. Purity or Concentration of GHB Mixture

Stewart contends that the extremely low purity of the

GHBmixture warranted a significant variance from the career

offender guidelines, and that even a below-guideline, 120-

month sentence was unreasonable. According to laboratory

testing, one sample of the liquid Stewart sold contained

0.055% pure GHB. Another sample contained just 0.046%

GHB. When used for approved therapeutic purposes, GHB

is distributed in a solution of 50% purity – over 900 times

more concentrated than the most concentrated mixture

Stewart sold to the undercover agent. Stated another way,
14 UNITED STATES V. STEWART

Stewart sold about three gallons of water that contained

roughly five to six total grams of dissolved GHB. This is the

equivalent of only a single prescribed dose of GHB, or a

maximum of six “doses” for illicit purposes.4

The district court accepted Stewart’s evidence of low

purity but rejected his argument for a variance. Agreeing

with the presentence report (PSR), it concluded that absent

the career offender provisions, Stewart would be sentenced

based on the entire 11 liters of the GHB mixture he sold

without regard to purity, yielding a guidelines range of 46 to

57 months.5 Because the district court viewed purity as

irrelevant for determining drug quantity under the guidelines,

it found that the very low purity of the GHB mixture was

irrelevant to anyvariance from the career offender provisions.

We disagree with the district court’s conclusion that

Stewart’s non-career-offender sentencing range would have

been based on 11 liters of GHB. First, purity or dilution is a

relevant consideration for crafting a sentence that is

“sufficient, but not greater than necessary,” under § 3553(a). 

Just as an upward variance or departure may be justified

4

See U.S. Dep’t of Justice, Drug Enforcement Admin., Drugs of Abuse:

A DEA Resource Guide 54 (2011 ed.) (stating that the average dose of

GHB when illicitly used is approximately one to five grams), available at

http://www.justice.gov/dea/pr/multimedia-library/publications/drug_of_

abuse.pdf.

 

5

 Under the guidelines, one milliliter or gram of GHB is the equivalent

of 8.8 grams of marijuana for purposes of calculating a base offense level. 

See U.S.S.G. § 2D1.1 cmt. n.8(D). Thus, without accounting for purity,

the 11,359 milliliters of the GHB mixture Stewart distributed yields an

offense level of 24, and after a reduction for acceptance of responsibility,

a guidelines range of 46 to 57 months’ imprisonment based on his

category III criminal history.
UNITED STATES V. STEWART 15

based on the unusually high purity of a drug, see U.S.S.G.

§ 2D1.1 cmt. n.26(C), a downward variance for a mixture of

unusually low purity may be justified in appropriate

circumstances to better reflect the nature and seriousness of

the offense, see 18 U.S.C. § 3553(a)(1)–(2).

Second, the district court was likely mistaken in its

assumption about the significance of the GHB mixture’s

purity under the non-career offender guidelines. Typically,

drug quantity under the guidelines includes the entire weight

or volume of any mixture containing a detectable amount of

controlled substance, without regard to purity or

concentration. See U.S.S.G. § 2D1.1(c) n.(A). For the

weight or volume of a mixture to be considered in its entirety,

however, it first must be useable as an illicit drug. See United

States v. Sprague, 135 F.3d 1301, 1305 (9th Cir. 1998)

(holding that under the “marketable material approach,” “the

weight of an unusable material mixed with a controlled

substance should not be included in the weight for

sentencing”). Therefore, a defendant’s drug quantity “does

not include materials that must be separated from the

controlled substance before the controlled substance can be

used,” whether or not the materials can in fact be separated. 

U.S.S.G. § 2D1.1 cmt. n.1; see also United States v. Byfield,

391 F.3d 277, 280 (D.C. Cir. 2004) (“[U]sability [is] essential

for calculating the weight of a drug quantity for § 2D1.1

sentencing purposes.”); United States v. Stewart, 361 F.3d

373, 377 (7th Cir. 2004) (“[O]nly usable or consumable

mixtures or substances are included in the drug quantity for

sentencing purposes.”).

We have explained that “packaging material” and “the

weight of waste washings in a mixture containing only trace

amounts of a controlled substance” are two examples of
16 UNITED STATES V. STEWART

substances that must “be separated from the [controlled

substance] before it could be used.” Sprague, 135 F.3d at

1305–06. “On the other hand, the weight of a consumable

cutting or diluting agent used to increase the total amount of

a marketable controlled substance would not be excluded as

it need not be separated to render the drug useable.” Id. at

1305 (emphasis added).

Although we have not located any case specifically

addressing highly diluted GHB, courts have addressed

analogous circumstances for other controlled substances. In

United States v. Robins, 967 F.2d 1387 (9th Cir. 1992), for

example, we held that the weight of cornmeal mixed with

cocaine should not be used in determining the base offense

level, because the 2,779 grams of cornmeal at issue “had to

be separated from the [one-tenth of a gram of] cocaine before

the cocaine could be effectively used.” Id. at 1388–89. The

cornmeal was “the functional equivalent of packaging

material,” because the cornmeal-cocaine mixture could not be

used without separating out the drug first. Id. at 1389. As did

Stewart here, the defendant in Robins attempted to defraud an

undercover agent by masking the very small quantity of a

controlled substance actually being sold. Id. at 1388.

When confronted with an unuseable or unmarketable

mixture, “rather than weighing everything, [a district court

should] . . . include only the amount of usable or consumable

substances, or the amount of drug that the defendant could

have extracted from something that is unusable at the time of

arrest.” Stewart, 361 F.3d at 378–79 (internal citations

omitted). This logic has been applied to an “unmarketable”

mixture containing over 1000 grams of sugar and only 10

grams of cocaine, see United States v. Jackson, 115 F.3d 843,

848–49 (11th Cir. 1997); a mixture containing
UNITED STATES V. STEWART 17

methamphetamine and other substances that had to be

evaporated or filtered out before the drug could be used, see

Sprague, 135 F.3d at 1306; a solution of waste water

containing a trace amount of cocaine, see United States v.

Johnson, 999 F.2d 1192, 1196–97 (7th Cir. 1993); and large

quantities of cocaine diluted in wine or liqueur, see United

States v. Palacios-Molina, 7 F.3d 49, 54 (5th Cir. 1993);

United States v. Acosta, 963 F.2d 551, 554–56 (2d Cir. 1992).

But see United States v. Berroa-Medrano, 303 F.3d 277,

283–84 (3d Cir. 2002) (holding that a defendant who agreed

to sell a package containing one kilogram of common heroin

cutting agents and only a trace amount of heroin is

accountable for the entire weight of the package). This is in

contrast to those cases where, despite dilution or

contamination, the controlled substance mixture “was ready

for sale and for use as it was.” United States v. Coleman,

166 F.3d 428, 432 (2d Cir. 1999) (emphasis omitted).

Thus, when GHB is dissolved in water at a useable

concentration, the entire volume of the GHB mixture must be

considered in determining drug quantity, because the water

serves only as a dilutant of the GHB, facilitating its use and

distribution. See Sprague, 135 F.3d at 1305. On the other

hand, when reliable scientific evidence shows that GHB is

diluted past the point of usability, the drug quantity should be

based on an approximation of the amount of usable GHB

mixture dissolved in the total liquid. See U.S.S.G. § 2D1.1

cmt. n.1. The water is not merely a dilutant in this latter

circumstance, but a “material[] that must be separated from

the [GHB] before the [GHB] can be used.” Id. An unuseable

GHB mixture “[does] not constitute ‘a drug product moving

through the chain of distribution in the manner envisioned by

Congress.’” Robins, 967 F.2d at 1390 (quoting United States

v. Chan Yu-Chong, 920 F.2d 594, 597 (9th Cir. 1990)).
18 UNITED STATES V. STEWART

The district court understandably did not analyze the

usability of Stewart’s GHB mixture because Stewart did not

raise the issue of usability in the district court. We strongly

suspect, however, that the GHB mixture was unusable, which

would have a significant effect on Stewart’s non-career

offender guidelines range. At the concentration Stewart sold

the mixture (0.00055 grams of GHB per milliliter of water),

one would have to consume about a half-gallon of liquid to

obtain a single “usable” dose of GHB, even assuming that

GHB this dilute would have any effect at all. If the GHB was

in fact unusable, the relevant benchmark for purposes of

sentencing would be an approximation of the amount of

usable mixture he distributed, that is, a useable solution

containing six grams of dissolved GHB. See Stewart,

361 F.3d at 378–79 (holding that a court must determine “the

amount of drug that the defendant could have extracted from

something that is unusable at the time of arrest”); Acosta,

963 F.2d at 555 (holding that a sentence should “be based on

the amount of the usable mixture – not the pure cocaine, but

the cocaine mixed with the ingestible cutting agents” (citing

United States v. Rolande-Gabriel, 938 F.2d 1231, 1237 (11th

Cir. 1991)).6,7

 

6

 Here, for example, the drug quantity might be one liter or less, based

on the total volume of liquid in which six grams of pure GHB could be

diluted to produce a usable product.

7 The district court also reasoned that no variance was warranted

because, given the price Stewart charged for the GHB, he “intended his

buyers to believe that his product was of a sufficient purity to produce an

intended effect.” In these circumstances, the court concluded that Stewart

would be held accountable for the entire volume of the GHB mixture

under the non-career offender guidelines, whether or not the GHB was

usable. We again disagree. A defendant who agrees to sell a specified

quantity of a controlled substance is typically held accountable for the

agreed-upon quantity, “unless the sale is completed and the amount
UNITED STATES V. STEWART 19

Accordingly, Stewart’s non-career offender guidelines

range likely would have been far lower than the 46 to 57

months calculated by the district court, based on a much

smaller volume of usable GHB mixture. Moreover, whether

or not the district court miscalculated Stewart’s non-career

offender range, the purity or diluteness of a drug mixture can

be a relevant factor for determining whether a sentence is

“sufficient, but not greater than necessary” under § 3553(a). 

The district court was incorrect to presume otherwise.

B. Career Offender Guidelines

Stewart also argues that his sentence is unreasonable

because the career offender guidelines over-represent the

seriousness of his criminal history and risk of recidivism, and

that the these provisions are inherently flawed as applied in

any case. He contends he was a low-level dealer selling

drugs to support his own addiction, and his two past drug

distribution crimes were only minor offenses. The district

court rejected his arguments, although it nonetheless varied

downward, and its reasoning is supported by the record.

The court properly recognized that it could give less

deference to or depart from the career offender provisions

based on either Stewart’s individual circumstances or a

general policy disagreement with the provisions, see United

States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011);

delivered more accurately reflects the scale of the offense.” U.S.S.G.

§ 2D1.1 cmt. n.5 (emphasis added). Here, Stewart may have agreed to sell

gallons of usable GHB to the agent, but he delivered a large amount of an

apparently unusable product. Properly taking usability into account, the

amount of usable drug product Stewart delivered would “more accurately

reflect[] the scale of [his] offense.” Id.
20 UNITED STATES V. STEWART

United States v. Mitchell, 624 F.3d 1023, 1027–30 (9th Cir.

2010), but it found that application of these provisions would

not “result[] in a sentence greater than necessary” in this case. 

In the court’s view, Stewart had “demonstrated a willingness

to engage in criminal conduct,” and it accurately observed

that “both of his prior convictions as with the present

conviction concern not only a series of escalating transactions

but a demonstrated willingness . . . to engage in sales of

greater amounts of the controlled substances.” The court’s

determination that “[d]espite two prior convictions, each with

increasingly severe sentences, [Stewart] has demonstrated

that he will not be deterred from further criminal action,” is

supported by the record. The district court therefore

reasonably concluded that the substantial increase in sentence

called for by the career offender provision was not

“unwarranted or greater than necessary in the circumstances

of this case,” because it would serve “to protect the public

from further criminal action by [Stewart].”

Stewart has a different view of the seriousness of his past

offenses than the district court, but the district court’s

interpretation of Stewart’s criminal history and potential for

recidivism was not “illogical, implausible, or without support

in inferences that may be drawn from the facts in the record.” 

United States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010)

(quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th

Cir.2009) (en banc)) (internal quotation marks omitted). Its

findings also accord with the policy behind the career

offender guidelines, which focuses on enhancing the penalties

of recidivist distributors of controlled substances. See Rivera,

996 F.2d at 996; United States v. Sanchez, 517 F.3d 651, 668

(2d Cir. 2008) (“[Section] 994(h) reflects Congress’s policy

judgment that . . . drug trafficking felonies generally warrant

more severe sentences when committed by recidivists than
UNITED STATES V. STEWART 21

when committed by first- or second-time offenders.”). The

district court could have disagreed with the policy behind the

career offender guidelines and sentenced Stewart accordingly,

but it was not required to do so. See Mitchell, 624 F.3d at

1030.

C. Totality of the Circumstances

Considering the totality of the circumstances, the district

court did not abuse its discretion in sentencing Stewart to 120

months’ imprisonment. As explained, the district court relied

on a mistaken assumption when it declined to vary from the

career offender guidelines based on the purity of the GHB

mixture. But we are not persuaded the mistake affected the

court’s choice of sentence or the overall reasonableness of the

sentence it chose. The purity and usability of a drug mixture

are but a few of the many relevant factors that weigh into

imposition of an individualized sentence under § 3553(a). Cf.

Treadwell, 593 F.3d at 1012. Fundamentally, the district

court based Stewart’s sentence on its agreement with the

sentencing range provided by the career offender guidelines,

a range that does not depend on the quantity of GHB – usable

or otherwise – involved in an offense. The court reasonably

explained why no variance from these provisions would be

justified based on Stewart’s criminal history. It then varied

downward by 31 months from the low end of Stewart’s career

offender guidelines range with the hope that Stewart would

rehabilitate himself while incarcerated. We afford “due

deference to the District Court’s reasoned and reasonable

decision that the § 3553(a) factors, on the whole, justified the

sentence.” Gall, 552 U.S. at 59–60. Although we may “think

a different sentence is appropriate,” Carty, 520 F.3d at 993,

the district court did not make “a clear error of judgment in

the conclusion it reached upon weighing the relevant factors,”
22 UNITED STATES V. STEWART

Ressam, 679 F.3d at 1087 (quoting Amezcua-Vasquez,

567 F.3d at 1055) (internal quotation marks omitted).

IV

For the foregoing reasons, we affirm Stewart’s sentence.

AFFIRMED.