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United States v. Brunken

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Submitted: February 10, 2009

Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.

Tracy Brunken and Amy Whitlock were indicted for conspiring to distribute at least five hundred grams of methamphetamine mixture and fifty grams of pure methamphetamine and distribution of a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A) and (C), and 846). Brunken was convicted of both counts after a two day jury trial. The district court*fn1 sentenced Brunken to 152 months in prison, granting a 36-month variance from the advisory guidelines range because his mother’s death contributed to his methamphetamine use. Whitlock pleaded guilty, cooperated, and testified against Brunken at his trial. The Probation Officer determined that her advisory guidelines sentencing range was 151-188 months in prison (total offense level 31; criminal history category IV). But Whitlock was subject to a mandatory minimum sentence of 240 months because of a previous state court drug conviction. The government filed substantial assistance motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. The district court granted the motions, concluded that Whitlock’s assistance was substantial but not extraordinary, and reduced her sentence by 37.5 percent to 150 months, almost twice the downward departure recommended by the government. Brunken and Whitlock appeal their sentences. We consolidated the appeals and now affirm.

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