                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALSNovember 7, 2011
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 10-5104
 v.                                          (D.Ct. No. 4:10-CR-00030-GKF-2)
                                                        (N.D. Okla.)
 JASON EDGAR KORT,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
HOLMES, Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Appellant Jason Edgar Kort pled guilty to conspiracy to possess and

distribute more than 500 grams of methamphetamine. He now appeals his 135-

month sentence on grounds the district court erred in denying both his request for

an additional two-level downward departure based on his substantial assistance to

the government and his motion for a variance based on the same assistance to the

government and an alleged sentencing disparity. We exercise jurisdiction under

18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm.



                      I. Factual and Procedural Background

      From December 2009 to February 27, 2010, Mr. Kort attempted to expand

his Oklahoma methamphetamine distribution activities and increase his profits by

finding and utilizing a new out-of-state methamphetamine source. In so doing, he

conspired with and directed the activities of several others concerning the

purchase of methamphetamine on four different occasions, including: (1) 226.8

grams of a mixture or substance containing methamphetamine between February 1

and February 12, 2010; (2) 226.8 grams of a mixture or substance containing

methamphetamine on February 17, 2010; (3) 81.4 grams of methamphetamine

with a purity level of 81.7%, or 66.5 grams of ‘Ice,” and 110.3 grams of

methamphetamine with a purity level of 80.9%, or 89.2 grams of “Ice,” on

February 23, 2010; and (4) 324.4 grams of methamphetamine with a purity level




                                        -2-
of 83.3%, or 270.2 grams of “Ice,” and 129.2 grams of a mixture or substance

containing methamphetamine on February 25, 2010.



      On February 27, 2010, authorities arrested Mr. Kort, and thereafter, a grand

jury indicted Mr. Kort and his co-conspirators, charging them with conspiring to

possess and distribute 500 grams or more of a mixture or substance containing a

detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(viii). After Mr. Kort pled guilty and the district court accepted his plea,

a probation officer prepared a presentence report calculating his sentence under

the applicable 2009 United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”). The probation officer set Mr. Kort’s base offense level at 34

pursuant to the Drug Quantity Table under U.S.S.G. § 2D1.1(c)(3). The probation

officer arrived at the offense level of 34 by converting the quantity of “Ice” and

other methamphetamine substance for which Mr. Kort was responsible into its

marijuana equivalent. One gram of “Ice” equals twenty kilograms of marijuana,

while one gram of a mixture or substance containing methamphetamine equals

only two kilograms of marijuana. See U.S.S.G. § 2D1.1, cmt. n.10(E) (Drug

Equivalency Table). In this case, the 425.9 grams of “Ice” for which Mr. Kort

was responsible equated to 8,518 kilograms of marijuana, and the 582.8 grams of

a mixture or substance containing a detectable amount of methamphetamine




                                         -3-
equated to 1,165.6 kilograms of marijuana. These amounts resulted in a total of

9,683.6 kilograms of marijuana for a base offense level of 34.



      The probation officer also increased by four levels Mr. Kort’s offense level

under U.S.S.G. § 3B1.1(a) for being an organizer or leader of a conspiracy

involving five or more participants but recommended a three-level offense

reduction under U.S.S.G. § 3E1.1(a) and (b) for his acceptance of responsibility,

for a total offense level of 35. A total offense level of 35, together with Mr.

Kort’s criminal history category of III, resulted in a recommended advisory

Guidelines range of 210 to 262 months imprisonment. The probation officer also

found no factors warranting a departure from the Guidelines calculations or a

variance under the sentencing factors in 18 U.S.C. § 3553(a).



      Mr. Kort moved for a variance under 18 U.S.C. § 3553(a)(6), claiming a

disparity existed between his sentence and those convicted for similar quantities

which did not reach the 80% purity threshold for “Ice.” Mr. Kort reasoned he

should not be held more culpable simply because the methamphetamine for which

he was responsible had purity levels of 81.7%, 80.9%, and 83.3%, which barely

exceeded the 80% purity threshold. He also moved for a variance under

§ 3553(a)(2) based on his substantial assistance to the government in providing

information concerning others involved in drug trafficking activities.

                                         -4-
      In response, the government filed a sealed motion objecting to Mr. Kort’s

motion for a variance but moving for a four-level downward departure in his

offense level under U.S.S.G. § 5K1.1 for his substantial assistance, which would

result in a Guidelines range of 135 to 168 months imprisonment. In requesting

the downward departure, the government described the type of information and

assistance Mr. Kort provided. Mr. Kort replied to the government’s motion,

stating the government accurately outlined his assistance. However, he claimed

an additional two-level downward departure was warranted pursuant to: (1) the

guilty plea of another after he agreed to testify against him; and (2) U.S.S.G.

§ 5K1.1(a)(4), because of the potential danger or risk of injury to himself and his

family resulting from his assistance to the government.



      At sentencing, Mr. Kort, through counsel, made no objections to the

findings of fact used in the calculation of his sentence or the calculation of the

Guidelines range. However, Mr. Kort continued to seek a variance, and both

parties provided argument on the downward departure issue previously raised,

including the type of assistance Mr. Kort provided to the government, the degree

of departure warranted, and the steps taken to ensure Mr. Kort’s safety during his

incarceration, especially in light of a threatening note he received. While Mr.

Kort’s counsel continued to argue for an additional two-level departure and a 120-

month sentence, government counsel argued Mr. Kort’s assistance to date only

                                          -5-
justified the four-level downward departure requested but stated the government

could foreseeably file a Rule 35(b) motion for a reduction of sentence if Mr. Kort

became a witness in the prosecution of others. It also explained it had contacted

the Bureau of Prisons, advising it of safety and separation concerns regarding Mr.

Kort and confirmed it would also set out in writing and provide to the Bureau of

Prisons information on such safety and separation concerns.



      After hearing and considering the parties’ arguments, the district court

granted the government’s motion for a four-level downward departure under

§ 5K1.1, stating it concurred with the government that Mr. Kort’s substantial

assistance warranted a four-level reduction and explaining the government was in

the best position to judge such assistance and the level of reduction warranted. In

denying Mr. Kort’s request for an additional two-level departure, it pointed out

the government had indicated a Rule 35(b) motion for a reduction in sentence may

be warranted in the future and confirmed the government would notify the Bureau

of Prisons regarding the safety and separation concerns related to Mr. Kort’s

assistance to the government.



      The district court also considered and denied Mr. Kort’s request for a

downward variance based on both his substantial assistance to the government

and the perceived sentencing disparity between him and other similarly-situated

                                        -6-
defendants who possessed similar quantities of methamphetamine which did not

reach the 80% purity level. The district court explained it had found no reason

“to impose a sentence below the departure guideline range” after approving the

significant four-level downward departure and also found “no sentencing

disparities” in Mr. Kort’s case. In finding no sentencing disparities, it noted it

had considered the purity of the methamphetamine for which Mr. Kort was

responsible and, relying on the Sentencing Commission’s application note 9 to

§ 2D1.1 on departures, explained possession of unusually pure narcotics indicated

a prominent role in the criminal enterprise and proximity to the source of the

drugs. See U.S.S.G. § 2D1.1, cmt. n.9.



      In imposing Mr. Kort’s sentence, the district court recognized the advisory

nature of the Guidelines and explained it had considered those Guidelines,

together with the sentencing factors in 18 U.S.C. § 3553(a), including the nature

of the offense; Mr. Kort’s criminal history and characteristics, including his

substantial assistance to law enforcement; and the need for the sentence to avoid

unwarranted disparities among defendants, reflect the seriousness of the offense,

promote respect for the law, provide just punishment, and protect the public from

further crimes. Based on these factors, it determined a sentence of 135 months –

at the low end of the revised Guidelines range – was an appropriate and

reasonable sentence.

                                          -7-
                                  II. Discussion

                             A. Disparity of Sentence

      On appeal, Mr. Kort contends the district court erred in denying his request

for a variance based on a sentencing disparity between himself and similarly-

situated defendants. In support, he continues to claim his sentence is

disproportionate to others because he received an enhancement under U.S.S.G.

§ 2D1.1 for 80% pure methamphetamine, or “Ice,” even though one-half of the

methamphetamine for which he was responsible was barely over the 80% purity

range at 81.7%, 80.9%, and 83.3%. He contends the 80% threshold imposed on

him is “arbitrary” because it makes him more culpable than someone who

possessed 79.9% pure methamphetamine. He also suggests the district court

impermissibly relied on application note 9 to § 2D1.1 to conclude the

methamphetamine in his case was “unusually pure” and he had a higher role in

the criminal enterprise, when he already received an adjustment for his role as an

organizer or leader. He argues his purchase of 80% pure methamphetamine did

not make the transactions he participated in “more dangerous” and that he only

bought the type of methamphetamine available to him, thereby intimating he did

not intend to purchase “Ice” purity levels of methamphetamine. In making these

contentions, Mr. Kort acknowledges the district court properly calculated the

advisory Guidelines.




                                        -8-
      We begin by addressing our standard of review and the principles

applicable to the issues raised. We review a sentence for reasonableness, using a

deferential abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 803, 806 (10th Cir. 2008). Our reasonableness review “includes both a

procedural component, encompassing the method by which a sentence was

calculated, as well as a substantive component, which relates to the length of the

resulting sentence.” Id. at 803. A challenge to the procedural reasonableness of a

sentence includes not only whether the district court properly calculated the

sentence under the Guidelines but whether it failed to consider the § 3553(a)

factors or to adequately explain the chosen sentence. See United States v. Sayad,

589 F.3d 1110, 1116 (10th Cir. 2009). In considering the district court’s

application of the Guidelines, we review factual findings for clear error and legal

determinations de novo. See United States v. Kristl, 437 F.3d 1050, 1054 (10th

Cir. 2006).



      In turn, substantive review involves “whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth

in § 3553(a).” Sayad, 589 F.3d at 1116 (quotation marks and citation omitted).

In reviewing a sentence for substantive reasonableness under the § 3553(a)

factors, we give substantial deference to the district court. See id. As a result, a

sentence is substantively unreasonable only if it is arbitrary, capricious,

                                         -9-
whimsical, or manifestly unreasonable. Id. Moreover, if the sentence is within

the correctly-calculated Guidelines range, we may apply a presumption of

reasonableness to the sentence. See Kristl, 437 F.3d at 1054. A defendant may

rebut this presumption by demonstrating the sentence is unreasonable when

viewed under the § 3553(a) factors. See id. at 1054-55.



      While Mr. Kort states he is not challenging the calculation of his sentence,

he nevertheless challenges the application of the base offense level of 34 in

calculating his sentence and the district court’s reliance on other provisions of the

Guidelines for the purpose of calculating or explaining his sentence. As a result,

we consider both the procedural and substantive reasonableness of his sentence.



      We begin by pointing out “Ice” is “a mixture or substance containing d-

methamphetamine hydrochloride of at least 80% purity” and reiterating that one

gram of “Ice” equals twenty kilograms of marijuana, while one gram of a mixture

or substance containing methamphetamine only equals two kilograms of

marijuana. See U.S.S.G. § 2D1.1, n.(C) (Drug Quantity Table) and cmt. n.10(E)

(Drug Equivalency Table). These provisions are used to determine a base offense

level for “Ice” and other methamphetamine, which in this case was 34. While

these provisions are merely advisory, the district court did not abuse its discretion




                                         -10-
in using them to calculate the quantity and quality of Mr. Kort’s

methamphetamine, and, as Mr. Kort admits, those calculations are accurate.



      Nevertheless, Mr. Kort contends the Sentencing Commission’s

recommended 80% threshold for “Ice” is an arbitrary benchmark. The Sentencing

Commission provides a background note to § 2D1.1 which explains:

      The base offense levels in § 2D1.1 are either provided directly by the
      Anti-Drug Abuse Act of 1986 or are proportional to the levels
      established by statute, and apply to all unlawful trafficking. Levels
      32 and 26 in the Drug Quantity Table are the distinctions provided by
      the Anti-Drug Abuse Act; however, further refinement of drug
      amounts is essential to provide a logical sentencing structure for drug
      offenses. To determine these finer distinctions, the Commission
      consulted numerous experts and practitioners, including authorities at
      the Drug Enforcement Administration, chemists, attorneys, probation
      officers, and members of the Organized Crime Drug Enforcement
      Task Forces, who also advocate the necessity of these distinctions.
      Where necessary, this scheme has been modified in response to
      specific congressional directives to the Commission.

U.S.S.G. § 2D1.1(c), cmt. background. Given the Sentencing Commission based

the drug quantities and conversion rates provided in § 2D1.1 on Congressional

directives and appropriate reliance on experts and practitioners in the field, Mr.

Kort has not shown they are arbitrary or that the district court erred or otherwise

abused its discretion in utilizing them, including using the 80% threshold and

calculations for “Ice” methamphetamine.




                                         -11-
      In addition, the Guidelines contemplate both an increased base offense

level for methamphetamine with a purity level over 80% under U.S.S.G. § 2D1.1

and an upward enhancement for one’s role as an organizer or leader under

U.S.S.G. § 3B1.1(a). Contrary to Mr. Kort’s contentions, these provisions do not

appear to be mutually exclusive sentencing considerations. Moreover, in this

case, Mr. Kort’s four-level leadership role enhancement was not based on the

purity level of the methamphetamine but on his directing the activities of those

purchasing “Ice” and other methamphetamine on his behalf. Thus, the criteria for

his leadership enhancement was based on different criteria than his base offense

level, causing no impermissible overlap or double counting.



      As to the district court’s reliance on application note 9 to § 2D1.1, it is

clear it referred to the application note only for the purpose of explaining why the

Sentencing Commission would recommend a lengthier sentence for trafficking

drugs with higher purity thresholds. Application note 9, which does not deal with

methamphetamine or base offense levels but with other types of drugs and upward

departures for their unusually high purity, states:

      The purity of the controlled substance ... may be relevant in the
      sentencing process because it is probative of the defendant’s role or
      position in the chain of distribution. Since controlled substances are
      often diluted and combined with other substances as they pass down
      the chain of distribution, the fact that a defendant is in possession of
      unusually pure narcotics may indicate a prominent role in the
      criminal enterprise and proximity to the source of the drugs.

                                         -12-
U.S.S.G. § 2D1.1, cmt. n.9. While application note 9 does not apply to

methamphetamine, it is evident the Sentencing Commission recommends a higher

offense level for “Ice” methamphetamine, in part, because a drug of such high

purity can be “cut” with other substances for distribution in larger quantities.

Thus, the district court did not abuse its discretion in referring to this application

note to explain the Sentencing Commission’s reason for imposing lengthier

sentences for drugs of higher purity.



      It is also apparent the district court considered all of Mr. Kort’s arguments

concerning his perceived sentencing disparity and nevertheless rejected those

arguments. It also considered the § 3553(a) factors, including the need to avoid

disparity in sentencing, and provided the requisite general statement of the

reasons for its imposition of his sentence, including the fact that it found no

sentencing disparity existed and that a sentence at the low end of the Guidelines

range would provide a sufficient, but not greater than necessary, sentence for the

purpose of punishing him for his crime. Because the district court properly

calculated the sentence under the Guidelines, considered Mr. Kort’s arguments

and the § 3553(a) factors, and adequately explained the chosen sentence, Mr.

Kort’s sentence is procedurally reasonable. See Sayad, 589 F.3d at 1116.




                                          -13-
      Having determined Mr. Kort’s sentence is procedurally reasonable, it is

entitled to a presumption of substantive reasonableness which he may rebut by

demonstrating the sentence is unreasonable when viewed under the § 3553(a)

factors. Kristl, 437 F.3d at 1054-55. His only attempt to do so is to argue the

80% threshold for “Ice” is arbitrary when considered with similarly-situated

defendants attributed with methamphetamine of a lesser purity, including those

hypothetical defendants with similar quantities of methamphetamine reaching

only a 79.9% threshold. While one of the sentencing factors to be considered

under § 3553(a) is the need for the sentence to avoid unwarranted disparities

among defendants, the Guidelines recommend a higher offense level for Mr.

Kort’s methamphetamine, which had a purity level over 80%. In turn, defendants

trafficking methamphetamine with lower purity levels are simply not similarly-

situated for the purpose of claiming an impermissible sentencing disparity.



      In addition, nothing in the record suggests Mr. Kort previously argued his

purchase of 80% pure methamphetamine did not make the transactions he

participated in “more dangerous” or that he only bought the type of

methamphetamine available to him. However, even if we credited and considered

these arguments, they are clearly insufficient, when weighed with the § 3553(a)

sentencing factors articulated by the district court, to tip the balance in Mr. Kort’s

favor for the purpose of finding his sentence substantively unreasonable.

                                         -14-
                              B. Substantial Assistance

      In addition to sentencing disparity, Mr. Kort contends the district court

erred in denying his request for an additional two-level downward departure

under U.S.S.G. § 5K1.1. In support, he renews his contention his assistance to

the government resulted in the guilty plea of another and placed himself and his

family in potential danger or risk of injury, as demonstrated by the threatening

note he received while at the local jail. He also claims the district court

impermissibly gave full weight to the government’s opinion on whether a further

degree of departure was warranted, thereby delegating away its Article III powers.

He also contends it failed to consider his request under § 5K1.1(a)(4) concerning

the risk or danger posed to himself or his family. Even if another two-level

downward departure was not warranted for such assistance, Mr. Kort requests a

remand to the district court to consider his motion for a variance on the same

grounds.



      We begin with Mr. Kort’s request for an additional downward departure.

“[W]e lack jurisdiction ... to review a district court’s discretionary decision to

deny a motion for downward departure on the ground that a defendant’s

circumstances do not warrant the departure.” United States v. Bergman, 599 F.3d

1142, 1150 (10th Cir.) (quotation marks and citation omitted), cert. denied, 131 S.

Ct. 219 (2010). “We may review a denial of a downward departure only if the

                                         -15-
denial is based on the sentencing court’s interpretation of the Guidelines as

depriving it of the legal authority to grant the departure.” Id. (quotation marks

and citation omitted). Here, the district court granted a four-level downward

departure, indicating it recognized its authority to make such departures. As a

result, we lack jurisdiction to consider Mr. Kort’s request for an additional two-

level departure.



      As to whether Mr. Kort’s government assistance warranted a downward

variance, we note the district court considered Mr. Kort’s argument and rejected

it. In so doing, it considered the government’s arguments on the degree of

departure warranted and concurred with the government that Mr. Kort’s

substantial assistance warranted a four-level reduction. Despite Mr. Kort’s

contentions, it was not an abuse of discretion to rely on the government’s

recommendation or state the government was in the best position to judge such

assistance and the level of reduction warranted. Indeed, reliance on the

government’s recommendation is contemplated by the Guidelines, as indicated by

an application note to § 5K1.1, which explicitly states: “[s]ubstantial weight

should be given to the government’s evaluation of the extent of the defendant’s

assistance, particularly where the extent and value of the assistance are difficult

to ascertain.” U.S.S.G. § 5K1.1, cmt. n.3. The district court also reasonably

pointed out the government had indicated a Rule 35(b) motion for a reduction in

                                         -16-
sentence may be warranted in the future for any continuing assistance to the

government and confirmed the government would notify the Bureau of Prisons

regarding the safety and separation concerns related to Mr. Kort’s assistance to

the government. For the purposes of procedural reasonableness, it is clear the

district court considered all of Mr. Kort’s contentions concerning his government

assistance and sufficiently explained Mr. Kort’s sentence, including why it

declined to provide a variance for such assistance. Mr. Kort has not provided

persuasive argument for the purpose of rebutting the substantive reasonableness

of his sentence on government assistance grounds nor otherwise shown his 135-

month sentence, which is at the low end of the Guidelines range, is arbitrary,

capricious, whimsical, or manifestly unreasonable.



                                  III. Conclusion

      For these reasons, we AFFIRM Mr. Kort’s sentence. In addition, we

GRANT the parties’ motions to file the briefs in this matter under seal.

Therefore, all briefs in this matter shall remain under seal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




                                         -17-
