Amendment issue resolved by the Supreme Court in Booker and remedied by the Supreme Court’s
declaring the U.S. Sentencing Guidelines to be advisory and no longer mandatory. The Seventh
Circuit in Macedo, did not hold, in remanding the case for re-sentencing, that judicial findings based
on a preponderance of the evidence for sentencing purposes were impermissible. Therefore, this
court must evaluate the sentencing evidence under that standard in determining the appropriate
sentencing guideline range.

In its filing of April 28, 2005, the government stated:

[T]he government is willing to concede in the particular circumstances of this case

the defendant should be found responsible for only .3 grams of cocaine and 1.19

grams of cocaine base for Counts 1 and 3 respectively.
(Dkt. No. 74, p. 13).
The government’s concession in the particular circumstances of this case came after the court
“expressed concerns regarding the fundamental fairness of stating a specific drug type in the
indictment, but imposing a sentence based on a higher weight and differing drug type,” even though
the greater weight and more harshly considered illegal drug in terms of severity under the sentencing
guidelines is consistent with the government’s evidence. Id. The court appreciates the government’s
concession on this point in this case. The government should always, in enforcing the federal
criminal law, be guided by the concepts of fundamental fairness, and should not evaluate the
fundamental fairness in a particular case only as a mere acknowledgment when a court raises
concerns.

Based upon the court’s evaluation of the evidence, the court finds that the evidence
establishes that the defendant is responsible for the distribution of a total amount cocaine base that

is less than 50 grams. The amount of crack cocaine, proven by a preponderance of the evidence, that


The Seventh Circuit’s opinion in Macedo must be read in the context of the procedural

history, in which Macedo’s trial attorney had objected appropriately to preserve the Sixth

sentence.

We turn now to the district court’s application of the Sentencing Guidelines. In
this case, we analyze the district court’s use of the Guidelines not to assess the
propriety of their application—for after Booker they serve no longer as a
mandatory prescription but rather as an advisory reference, Booker, 125 S. Ct. at
756-57-—but rather to ascertain those facts upon which the district court felt
authorized, even obliged, to base its sentence of Macedo. The Guidelines
recognize various qualities of methamphetamine—“methamphetamine,”
“methamphetamine (Actual),” and “Ice.” See generally U.S.S.G. § 2D1.1. These
distinctions are of appreciable significance under the Guidelines’ regime, because
the quality of methamphetamine with which a defendant is found to have been
involved can help determine the base offense level assigned to the defendant for
purposes of calculating his sentence. Indeed, the base offense level is a factor
upon which Guidelines sentencing is predominantly based.

As the findings catalogued above reveal, the jury found Macedo guilty of offenses
involving 600 grams or more of plain old “methamphetamine” —not
“methamphetamine (actual)” or “Ice.” Had the district court relied solely on those
jury findings, Macedo’s base offense level under the Guidelines would have been
32. See U.S.S.G. §§ 2D1.1(a)(3) and 2D1.1(c)(4) (providing a base level of 32 for
offenses involving “[a]t least 500 G but less than 1.5 KG of Methamphetamine”).
The district court, however, went further. At sentencing it found by a
preponderance of the evidence that the actual weight of the charged mixtures was
878.8 grams (based on uncontested results of government lab analysis) and that
91% of those mixtures, or 799.7 grams, constituted “methamphetamine (actual).”
Based on these supplemental factual findings, the district court sentenced Macedo
pursuant to Sections 2D1.1(a)(3) and 2D1.1(c)(4) of the Guidelines, which carries
with them a base offense level of 36 for offenses involving “at least 500 G but less
than 1.5 KG of Methamphetamine (actual), or at least 500 G but less than 1.5 KG
of ‘Ice.”” (emphasis added). Thus, based on solely judge-found facts, the district
court increased Macedo’s base offense level by four levels (from 32 to 36). Such
sentencing in reliance on supplemental facts not admitted by Macedo or proven to
the jury beyond a reasonable doubt—namely, involvement with 799.7 grams of
methamphetamine (actual) as opposed to involvement with merely 600 grams of
methamphetamine-—squarely offends our new understanding of the Sixth
Amendment as divined by Booker.

Macedo, 406 F.3d at 788-790.


the defendant distributed, and is therefore accountable for in this case, is 49.21 grams which consists
of: .65 grams as is specifically charged in Count Two; 1.19 grams as is specifically charged in Count
Three; and 47.37 grams as charged in Count Four which is consistent with the jury’s finding of
“more than 5 grams but less than 50 grams” as to Count Four.

Consequently, defendant’s Base Offense Level pursuant to the Drug Quantity Table at
§ 2D1.1 of the 2003 Guidelines Manual is a Level 30.

ENTER:

Qin. 3. Neecre

AMES F. HOLDERMAN
‘United States District Judge

DATE: June 20, 2005


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA )
) No. 03 CR 799
v. )
) Honorable James F. Holderman
WILLIE H. JONES )
)
)

MEMORANDUM OPINION
REGARDING THE SENTENCING OF WILLIE H. JONES

JAMES F. HOLDERMAN, District Judge:

The four-count indictment in this case charged the defendant Willie H. Jones with the
distribution of a controlled substance on four separate occasions. Each separate count alleged a
specific type and amount of the alleged controlled substance as follows:

Count One, April 17, 2002, “approximately .30 grams of mixtures containing
cocaine”;

Count Two, May 2, 2002, “approximately .65 grams of mixtures containing cocaine
base, also known as crack cocaine”;

Count Three, May 17, 2002, “approximately 1.19 grams of mixtures containing
cocaine base, also known as crack cocaine”;

Count Four, September 11, 2002, “in excess of five grams of mixtures containing
cocaine base, also known as crack cocaine.”

The case went to trial and the jury found the defendant guilty of each of the four counts.
Additionally, the jury, in response to a special interrogatory on the verdict form, found “beyond a
reasonable doubt that the total amount of cocaine base defendant distributed as charged in Count

Four was [mJore than 5 grams but less than 50 grams.” (Dkt. No. 35).


Defendant’s post-trial motions were denied and the case has proceeded toward sentencing.
The government's initial sentencing position as to Count One, the April 17, 2002 transaction, was
that the amount the court should consider in sentencing the defendant, was not the .3 grams of
cocaine charged in the indictment of which the defendant was found guilty, but .56 grams of cocaine
base also known as crack. The government espoused this position in its initial sentencing arguments
because Government Exhibit 16, a more complete report of the analysis than had been initially
prepared by the investigating officers, the DuPage County Sheriff's Office, of the drugs purchased
from the defendant on April 17, 2002, established that .56 grams of crack, not the .3 grams of
cocaine charged in the indictment in Count One that the jury had considered and in finding the
defendant guilty, was purchased from the defendant.

As to Count Three, which related to the May 17, 2002 transaction, the government’s initial
sentencing position as to the amount of drugs that the court should consider in sentencing the
defendant was not the 1.19 grams of crack charged in Count Three of which the jury found the
defendant guilty, but 1.88 grams of crack. The government made this argument because Government
Exhibit 14, had not shown any analysis of a second bag marked “3B,” purchased from the defendant
on May 17, 2002. A report prepared over a year later dated December 5, 2003 of the DuPage County
Sheriff's Office analyzed the “3B” bag and found an additional .69 grams of crack, that had not been
previously reported. Adding that later-reported crack to the earlier-reported crack for May 17, 2002,
brought the total crack purchased from the defendant on May 17, 2002 to 1.88 grams, rather than the
amount of 1.19 grams alleged in Count Three of the indictment.

As to Count Four, the September 11, 2002 transaction, the jury found the defendant guilty

and also found beyond a reasonable doubt the defendant distributed “more than 5 grams but less than


50 grams” of cocaine base on the date. The government’s evidence introduced at trial as
Government Exhibit 16, showed that the package distributed by the defendant on
September 11, 2002 contained 47.37 grams of crack, which is the amount for which the government
contends the defendant is responsible on that date. Defendant’s counsel has argued as to Count Four
that because the jury found an amount of “more than 5 grams but less than 50 grams,” the most crack
cocaine for which the defendant could be held responsible on September 11, 2002, for purposes of
sentencing as alleged in Count Four is 5.1 grams.

At the request of the parties, sentencing of the defendant Willie Jones was delayed pending
the United States Supreme Court’s determination in United States v. Booker. After Booker was
decided by the Supreme Court, counsel for each side in this case provided supplemental materials
regarding the ramifications of Booker in the Seventh Circuit. When the materials submitted by
counsel, did not include any discussion of the April 14, 2005 Seventh Circuit decision in United
States v. Macedo, 406 F.3d 778 (7th Cir. 2005), the court called that opinion to counsels’ attention,
because the facts of the Macedo case and this case appeared similar, in that the government was
seeking an enhanced sentenced based upon a drug quantity and a type of drug not charged in the

indictment considered to the jury.'

'The Seventh Circuit summarized the circumstances in the Macedo case as follows:
Pursuant to special verdict forms, the jury here found Macedo guilty beyond a
reasonable doubt of, among other charges, (1) “conspiracy to import 500 grams or
more of mixtures containing a detectible amount of methamphetamine,” (2)
possession of “50 grams or more, but less than 500 grams of mixtures containing
a detectible amount of methamphetamine,” and (3) attempt to possess “SO grams
or more, but less than 500 grams of mixtures containing a detectible amount of
methamphetamine.” Thus, in total the jury found that Macedo’s offenses of
conviction involved a total of 600 or more grams of mixtures containing
methamphetamine. Under Booker, these findings proven to the jury beyond a
reasonable doubt provide a legitimate basis upon which a judge may impose

3