Holland

MEMORANDUM *

Cheryl Holland appeals the district court’s sentencing decision to depart upwards by 16 points, from an adjusted offense level of 14 to a final offense level of 30, her primary objection being that the court may have been influenced by a Sentencing Guideline not yet in effect. We reject Holland’s contention and affirm the district court’s departure. As the parties are familiar with the facts of this case, we recite them only as necessary to explain our decision.

First, we reject Holland’s assertion that Judge Whaley was affected by the yet-to-be-enacted 2003 version of Guideline 2D1.11. Judge Whaley explicitly disavowed any such influence:

The clear import of Judge Whaley’s statement is that he arrived at an offense level of 30 not because of a proposed sentencing guideline, but for an independent reason: the red phosphorus that Holland pled guilty to possessing was “responsible for significant amounts of methamphetamine.” We have no reason to disbelieve him.

We similarly decline to read Judge Whaley’s departure decision as relying on U.S.S.G. § 2D1.11 (2002) for an analogy to hydriodic acid. The decision was “base[d] ... on” the “significant amounts of…