Magallon

This case presents a question of first impression in this circuit: does the district court commit plain error in sentencing a defendant for a drug crime involving methamphetamine when the district court sentences the defendant under the Sentencing Guideline formula for D-methamphetamine rather than L-methamphetamine and the government has presented no evidence as to which type of methamphetamine was involved? Our answer is that the court commits plain error in this circumstance, the error affects the defendant’s substantial rights, and the failure to correct the error would seriously affect the fairness and integrity of judicial proceedings. We therefore vacate the defendants’ sentences and remand their cases to the district court for resentencing.

I

Jose Louis Magallon, Robert Gonzales, Luis E. Estrada-Hernandez, and Gerardo Delgado-Garibay (collectively “defendants”) were each convicted after a jury trial of conspiring to manufacture and distribute methamphetamine and/or manufacturing or aiding and abetting in the manufacture of “methamphetamine” in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 2 .

The drug methamphetamine exists in two isomeric forms. United…