In 2019, Scott Carnell pled guilty to conspiring to distribute 2.7 kilograms of meth in Southern Illinois. At his sentencing, the judge held that Carnell had been dealing “ice,” or meth of at least 80 percent purity, which triggered a drastic sentencing enhancement—an additional seven to eight years of prison time, per the federal guidelines. If not for the ice enhancement, Carnell would have been facing between nine and eleven years; because of the ice enhancement, the judge sentenced him to 16 years in prison.
The government’s proof that Carnell was dealing ice was flimsy at best. The prosecutor pointed to the fact that Carnell and his co-defendants referred to what they sold as “ice,” and that “no one complained” about the product. A detective testified about the difference in appearance between ice, a “crystalline-type substance” and meth, which was “powdery.” Although the government did not test the purity of Carnell’s meth, they claimed that samples obtained from seizures in unrelated cases were somehow indicative of the purity of his drugs.
Carnell, for his part, explained that he and his co-defendants were basically bullshitting, calling their product “ice” when it was actually just regular meth.
Challenging the ice enhancement was a risky proposition for Carnell, since a court could also revisit other aspects of his sentence and impose any other applicable enhancements. The Seventh Circuit Court of Appeals, however, agreed with him, noting that it defied “common sense” that a “dealer, user, or police officer could somehow detect the difference between 79% pure methamphetamine and 80% pure methamphetamine.” Even if the government had properly tested Carnell’s supply, they added, there would still remain troubling questions about what proof, exactly, was necessary to constitutionally impose an enhancement like this one.
On remand to the district court, the probation office issued a new pre-sentencing report that did away with the proposed ice enhancement. But the new report also revisited Carnell’s criminal history, adding new sentencing enhancements due to two Illinois state law convictions that were finalized between his sentencing and his appeal. Last June, two years after his original sentencing, the judge adopted the probation officer’s recommendations in full. Carnell was sentenced to 165 months—nearly 14 years in prison.
Carnell appealed again, arguing that he had appealed a specific, unfair aspect of his sentence, and that the rest should remain intact. This time, the Seventh Circuit ruled against him, reasoning that Congress allowed district court judges to “sentence and resentence real persons in real time.” This, per the Seventh Circuit, affords judges the flexibility to consider events that take place after someone’s original sentencing, for better or worse. Carnell’s “victory” thus became a hollow one. His release date is scheduled for July 17, 2032.
Carnell is hardly the only defendant to receive an ice enhancement on shoddy evidence, and federal judges have acknowledged that it produces arbitrary, unfair disparities in sentencing. Yet some appeals courts, unlike the Seventh Circuit here, have held circumstantial evidence sufficient to impose it: The Eighth Circuit, for example, has held that the testimony of users and cops is enough. Generally, the burden of proof is lower at sentencing than at trial, but the notion that someone can eyeball the purity of meth by mathematical percentage and perhaps double a defendant’s prison sentence places that bar in hell.
In 2008, the Court held in Greenlaw v. United States that an appeals court judge cannot increase a defendant’s sentence unless the prosecutor requests that. What Greenlaw doesn’t protect against, however, are the myriad mechanisms available to prosecutors and judges who want to hand out as many years as possible. A plea bargaining process in which prosecutors have the upper hand and judges are willing to punish people who dare appeal their sentences sends a clear message to defendants: comply with what you get, no matter how unjust that sentence may be, or you will regret it.
