Whether the use of Methamphetamine Actual to determine the Guideline Offense Level and potential sentence, when the Defendant was charged with and pled guilty to distribution of Methamphetamine Mixture, violates the Sixth Amendment and the Supreme Court's rulings in Apprendi and Alleyne

QUESTION PRESENTED FOR REVIEW The Appellant’s Appeal was denied on April 29, 2022 by the Sixth Circuit Court of Appeals. In this case, the Appellant raises one (1) issue for determination by this Honorable Court. The Defendant objected to use of Methamphetamine Actual as the drug to determine the Guideline Offense Level and thus the potential sentence, the Defendant here was charged in the Indictment with the distribution of 500 grams or more of Methamphetamine Mixture. In the Plea Agreement signed by the Defendant in this case and he pled guilty to the specific count of distribution of 500 grams or more of Methamphetamine Mixture. That only when it became time for sentencing purposes in the Presentence Report, the Government used the penalty provided in the United States Sentencing Guidelines for the drug Methamphetamine Actual. Here the Appellant entered into a plea agreement based on Methamphetamine Mixture not Methamphetamine Actual a substantially different drug with a specific purity level which greatly increased his potential sentence based on Guideline, however, this did not raise the mandatory minimum or maximum sentence, but raise his Guideline Range. This fact is contrary to the Apprendi decision and the Alleyne decision, the US Supreme Court in Apprendi v. New Jersery, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013) which both held that any fact that raises the defendant’s potential sentence is an 1 Element of the Crime and is a jury question, not a question for the Court. In Alleyne the Court said, As noted, the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. It is obvious, for example, that defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction, Alleyne v. United States, 570 U.S. 99 (2013). This Court has made it clear that facts that increase a defendant’s statutory maximum or minimum sentences are Elements of the Crime itself and that must be ; proved to a jury, however, the Court has not applied this same standard to judicial fact finding that results in the Guideline Range being higher while the sentence may be above the minimum but below the maximum sentence, that should not apply here, here the Defendant was charged with a specific crime, that of 2 Methamphetamine Mixture distribution, the punishment standard is much less stringent than Methamphetamine Actual and is in fact a separate drug with different penalties, further, that the type of drug should be an Element of the Crime/Indictment itself if it increases the potential sentence, especially in this case where he was charged with a crime involving Methamphetamine Mixture and pled guilty to the same crime involving Methamphetamine Mixture rather than Methamphetamine Actual that was used to compute his Guideline Range and greatly increased his potential sentence. 3