In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-1897

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL T. BOSTOCK,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 17-cr-40030-001 — Sara Darrow, Judge.

____________________

ARGUED NOVEMBER 14, 2018 — DECIDED DECEMBER 10, 2018

____________________

Before EASTERBROOK, SYKES, and SCUDDER, Circuit Judges.

EASTERBROOK, Circuit Judge. Michael Bostock pleaded 

guilty to distributing methamphetamine and has been sentenced to 125 months’ imprisonment, which he contends is 

unreasonably high.

The statute that forbids sales of this drug distinguishes 

by its purity. For example, for the purpose of se[ing minimum and maximum sentences, “50 grams or more of meth-
2 No. 18-1897

amphetamine” is treated the same as “500 grams or more of 

a mixture or substance containing a detectable amount of 

methamphetamine”. 21 U.S.C. §841(b)(1)(A)(viii). The Sentencing Guidelines reflect this classification. The drug quantity table, U.S.S.G. §2D1.1(c), distinguishes among “Methamphetamine”, “Methamphetamine (actual)”, and “Ice”.

Note (A) to this table says that “methamphetamine” is the 

weight of any mixture or substance containing a detectable 

amount of the controlled substance; Note (B) defines the “actual” variant as the weight of the controlled substance disregarding any contaminants or cu[ing agents; Note (C) defines “ice” as the weight of “a mixture or substance containing d-methamphetamine hydrochloride of at least 80% purity.” The Guidelines treat the “actual” and “ice” variants as 

ten times the weight of the detectable-quality variant. So, for 

example, §2D1.1(c)(5) provides that 500 grams to 1.49 kilograms of methamphetamine, 50 to 149 grams of methamphetamine (actual), and 50 to 149 grams of ice all produce an 

offense level of 30. Bostock, who concedes distributing 63.8 

grams of ice, falls into this category. Given his criminal history category, the Guidelines recommended a sentence in 

the range of 130 to 162 months’ imprisonment.

The district court sentenced him slightly below the lower 

end of this range. Still, he contends that the judge should 

have proceeded as if he had sold 64 grams of “methamphetamine” rather than 64 grams of “ice.” If the judge had done 

that, the recommended sentence would have been in the 

range of 77 to 96 months in prison. The judge declined to 

disregard the Guidelines’ distinction between “methamphetamine” and “ice,” and that decision led to this appeal.
No. 18-1897 3

Bostock tried to persuade the judge that the distinction 

between “methamphetamine” and “ice” (or “methamphetamine (actual),” which we ignore from now on) is outmoded 

because most sellers have moved to higher-purity products. 

He also insisted that the distinction never had a sound empirical footing. Yet the 10-to-1 ratio is baked into the statute. 

Although the Sentencing Commission is not compelled to 

draw its recommendations from statutory text, it is entitled 

to do so, whether or not Congress was legislating in a datadriven way. The Commission cannot affect statutory minimum and maximum sentences, see Neal v. United States, 516 

U.S. 284 (1996), though subject to that constraint it can use 

ratios different from those that Congress prefers. Id. at 292–

94. Rejecting a legislative ratio is never required, however.

That holds for judges too. A court may deviate from a 

Guideline if persuaded that the Commission is mistaken, see 

Kimbrough v. United States, 552 U.S. 85 (2007); United States v. 

Corner, 598 F.3d 411 (7th Cir. 2010) (en banc), but is never required to do so. Indeed, we have held that a district judge is 

not required even to articulate a reason for sticking with the 

Guidelines and may give the silent treatment to stock arguments asking the court to disregard the Commission’s recommendations. See, e.g., United States v. Aguilar-Huerta, 576 

F.3d 365, 367–68 (7th Cir. 2009); United States v. SchmiB, 717 

F.3d 536, 542 (7th Cir. 2013).

When sentencing Bostock, the district judge did not ignore his challenge to the Sentencing Commission’s decision 

to distinguish “methamphetamine” from “ice.” Instead she 

explained at some length why she was not persuaded by the 

decisions of a few other judges who have treated “ice” the 

same as “methamphetamine.” Here Bostock sees an opening, 
4 No. 18-1897

for he maintains that the evidence does not support some of 

the judge’s statements.

For example, Bostock contends that the judge erred when 

remarking that “ice” is worse than “methamphetamine” because the purer substance is more valuable, and with “more 

value comes more danger.” There’s no record evidence of 

extra value, Bostock observes. True enough, but neither does 

the record contain evidence to the contrary. (Bostock neither 

disputed the judge’s observation, a step that might have

spurred the prosecutor to introduce evidence, nor introduced his own evidence, so our review is for plain error. See 

United States v. Oliver, 873 F.3d 601, 607–09 (7th Cir. 2017).) 

Judges know that higher-octane gasoline sells for more than 

weaker stuff and do not need evidence to infer that this is 

true of other products as well. Unless the laws of economics 

have been repealed in the Central District of Illinois, 60 

grams of a substance that can be cut to produce 500 grams of 

10% methamphetamine is worth more than 60 grams of 10% 

methamphetamine. The amount of the difference is unknown 

on this record, but the sign on the variable is known.

Bostock also contends that the judge erred in equating 

sellers of “ice” with large-scale dealers. It may well be that

the Commission (and Congress) were influenced by a belief 

that those selling higher-purity drugs are higher in the chain 

of distribution, but the district judge did not rely on that belief, which is not necessary to sustain a purity-based distinction in sentencing. The 10-to-1 ratio between “ice” and 

“methamphetamine” does not denigrate from marginal punishment for more serious criminals. Large-scale dealers operate on, well, a larger scale than 64-gram sales. The Guidelines increase the base offense level until it reaches 38 at 4.5 
No. 18-1897 5

kilograms of “ice” or 45 kilograms of “methamphetamine”; 

kingpins thus receive higher sentences. Bigwigs also receive 

enhancements under §3B1.1 for their supervisory roles. 

There’s no problem with holding Bostock, who did not receive a supervisory enhancement, responsible for the 

amount or purity of the drug he distributed.

It is not necessary to go through Bostock’s objections to 

the judge’s other statements. The bo[om line is that she 

stuck with the distinction between “methamphetamine” and 

“ice,” as she was entitled to do. She gave Bostock an individualized sentence that depended substantially on his criminal history category of VI—the judge found him undeterrable, with crimes increasing in gravity after each release from 

prison—and the need to protect the community from highquality methamphetamine made in industrial laboratories in 

other places, which had become a plague after police managed to shut down most of the local manufacturers. Bostock 

should count himself fortunate, given the judge’s observations, that his sentence is below rather than above the range 

recommended by the Sentencing Commission.

AFFIRMED