USA v. Rose., Criminal Action No. 2:09cr134-MHT.

• Decision Date: 14 July 2010
• Docket Number: Criminal Action No. 2:09cr134-MHT.
• Citation: 722 F.Supp.2d 1286
• Parties: UNITED STATES of America v. Fanseco M. ROSE.
• Court: U.S. District Court — Middle District of Alabama

722 F.Supp.2d 1286

UNITED STATES of America

v.Fanseco M. ROSE.

Criminal Action No. 2:09cr134-MHT.

United States District Court, M.D. Alabama,Northern Division.

July 14, 2010.

Susan R. Redmond, Tommie Brown Hardwick, U.S. Attorney's Office, Montgomery, AL, for United States of America.

Joseph L. Fitzpatrick, Jr., J. Fitzpatrick & Associates, Montgomery, AL, for Fanseco M. Rose.

OPINION

MYRON H. THOMPSON, District Judge.

Defendant Fanseco M. Rose pleaded guilty to one count of possession with intent to distribute a schedule I controlled substance in violation of 21 U.S.C. § 841(a)(1). Rose filed two objections to the presentence investigation report (PSR) completed by the United States Probation Department, and he requested a ‘departure’ from the established base-offense level pursuant to U.S.S.G. § 5H1.6 as well as a ‘variance’ under 18 U.S.C. § 3553(a).

At sentencing, the court overruled both of Rose's objections to the PSR and granted his requests for a departure and a variance. This opinion explains why.

I. BACKGROUND

Rose is a 51-year-old resident of Lithonia, Georgia. On July 20, 2009, Rose and a friend were pulled over, by an officer for the High Intensity Drug Trafficking Area Task Force, on I-85 near Montgomery, Alabama for speeding. Rose agreed to allow the officer to search his rental vehicle.

In the search, the officer found a Glock .40 caliber semi-automatic pistol, 15 rounds of ammunition, and two plastic bags containing pills that the officer thought were MDMA (3,4-methylenedioxymethamphetamine), also known as ‘ecstasy.’ Rose and his friend were arrested and questioned. During the interrogation, Rose stated that the person who rented the car for him owned the gun, and Rose admitted that someone asked him to deliver the package of pills from Atlanta, Georgia to Mobile, Alabama.

Although a field test indicated that the pills were MDMA, laboratory tests revealed that they were actually BZP (Benzylpiperazine) mixed with TFMPP (N-Trifluoromethylphenyl-piperazine) and caffeine. The substance weighed 587.918 grams. Neither BZP nor TFMPP is listed in the United States Sentencing Guidelines or in the drug-equivalency table. See U.S.S.G. § 2D1.1. Rose was indicted for possession with intent to distribute a schedule I controlled substance, 21 U.S.C. § 841(a)(1), and possession of a firearm during a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). As stated, he pleaded guilty to the drug charge, and the government agreed to move to dismiss the firearm charge.

Prior to his sentencing hearing, Rose lodged two objections to the PSR. He also requested a departure based on loss of caretaking or financial support, U.S.S.G. § 5H1.6, and a variance under 18 U.S.C. § 3553(a).

II. DISCUSSION

Although this court is no longer bound to follow the United States Sentencing Guidelines, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it still must consult the Guidelines and take them into account when sentencing. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005); see also 18 U.S.C. §§ 3553(a)(4) & (5). After calculating the correct guideline range, the court may impose a sentence outside that range as long as the sentence is reasonable. See Crawford, 407 F.3d at 1179. The factors set forth in 18 U.S.C. § 3553(a) inform the court whether a sentence is reasonable. See Booker, 543 U.S. at 263, 125 S.Ct. 738.

The court's obligation at sentencing may be summarized as follows: review the PSR (which is prepared by the Probation Department) for accuracy and rule on any objection; calculate the total-offense level and criminal-history score; rule on any upward or downward departure request; determine the final guideline range; and, finally, with the appropriate guideline range in mind, determine and impose a sentence that serves the purposes set forth in § 3553(a). ¹ Because neither the government nor Rose has questioned the accuracy of the factual information listed in the PSR, the court turned first to Rose's objections. ²

A. Objections

First objection: Rose objected to the Probation Department's determination that the pills found in his possession were most similar to MDMA for sentencing purposes. BZP is not listed in the drug-quantity table or the drug-equivalency table. See U.S.S.G. § 2D1.1(c) & cmt. n. 10(E). Therefore, in order to calculate Rose's base-offense level, the court was required to use the “marihuana equivalency of the most closely related controlled substance referenced in [the] guideline.” U.S.S.G. § 2D1.1 cmt. n. 5. Rose argued that BZP is more closely related to amphetamine than it is to MDMA, and that BZP is much less potent than amphetamine. He contended that the court should account for BZP's lesser potency when establishing the base-offense level.

In determining the most closely related controlled substance, the court is required, to the extent practicable, to consider the following:

“(A) Whether the controlled substance not referenced in this guideline has a chemical structure that is substantially similar to a controlled substance referenced in this guideline.

“(B) Whether the controlled substance not referenced in this guideline has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance referenced in this guideline.

“(C) Whether a lesser or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in this guideline.”

U.S.S.G. § 2D1.1 cmt. n. 5.

BZP's ‘action’ has been described as like that of both amphetamine and MDMA; it produces cardiovascular changes, including increases in heart rate and systolic blood pressure, as well as euphoria. On its own, BZP is like amphetamine in that it is a central-nervous-system stimulant, although it is ten to 20 times less potent. The pills found in Rose's possession, however, were not pure BZP, but contained a mixture of BZP, TFMPP, and caffeine. When combined with TFMPP (a hallucinogen), BZP mimics the molecular mechanism of MDMA but with a lower potency; in this form, BZP-TFMPP has gained popularity as a party drug similar to that of MDMA. Gov't's Ex. E at 45.

Because the BZP found in Rose's possession contained TFMPP, the evidence before the court suggested that MDMA, and not amphetamine, is “the most closely related controlled substance referenced in [the] guideline.” U.S.S.G. § 2D1.1 cmt. n. 5. While BZP on its own may arguably be most similar to amphetamine, BZP-TFMPP is most “closely related” to MDMA, albeit less potent. Therefore, Rose's first objection was overruled as to probation's decision to calculate the base-offense level using MDMA. Then, in determining the correct base-offense level, the court next addressed BZP-TFMPP's diminished potency.

Both the government and Rose agreed that the court may account for the potency of the drugs possessed in fashioning an appropriate sentence. However, the government argued that the court should acknowledge BZP-TFMPP's lesser potency with only a 18 U.S.C. § 3553(a) variance as opposed to changing the base-offense level. The court agreed with the government. After there has been a determination of the listed drug most closely related to the unlisted drug, the Sentencing Guidelines do not provide a method to adjust the base-offense level for any potency difference remaining between the listed drug and the unlisted drug. This potency adjustment, if warranted, may therefore be appropriately addressed as a variance. Cf. Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (holding that federal district court did not abuse its discretion by concluding that Sentencing Guidelines' crack cocaine/powder cocaine disparity yields sentence greater than necessary to achieve sentencing statute's objectives in a particular case).

Second objection: Rose protested probation's decision to levy a two-level enhancement against him for possessing a firearm while unlawfully trafficking the BZP-TFMPP-caffeine pills. See U.S.S.G. § 2D1.1(b)(1). He asserts that he did not know a firearm was in the rental car and that he never had possession over the gun. When the police officers confronted Rose with the weapon, he stated that the gun belonged to a man who rented the vehicle for him and that this man worked as a security guard. U.S.S.G. § 2D1.1 cmt. n. 3 provides: “[T]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”

The court heard testimony from a law enforcement officer, as well as Rose himself, regarding the firearm. In light of the testimony and after watching a video of Rose's arrest, the court found that the enhancement should apply. While the court credited Rose's statement that the gun belonged to a man who rented the vehicle for him, the court agreed with probation and the government that it was not “clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1 cmt. n. 3. The court, therefore, overruled Rose's second objection to the PSR.

B. Departure

Rose requested a three-level departure, pursuant to U.S.S.G. § 5H1.6, based upon loss of caretaking or financial support. Section 5H1.6 explains that, “In sentencing a defendant ... family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted,” but that the court may consider whether “The defendant's service of a sentence within the applicable guideline range will cause a substantial, direct, and specific loss of essential caretaking, or essential financial support, to the defendant's family,” U.S.S.G. §...