U.S. v. Bennett, 10–3335.

• Decision Date: 19 October 2011
• Docket Number: No. 10–3335.,10–3335.
• Citation: 659 F.3d 711
• Parties: UNITED STATES of America, Appellee,v.Brandon L. BENNETT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

659 F.3d 711

UNITED STATES of America, Appellee,

v.Brandon L. BENNETT, Appellant.

No. 10–3335.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2011.Filed: Oct. 19, 2011.

Stephen C. Moss, Asst. Fed. Public Defender, Kansas City, MO (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.Lajuana M. Counts, Asst. U.S. Atty., Kansas City, MO (Beth Phillips, U.S. Atty., Stefan C. Hughes, Asst. U.S. Atty., on the brief), for appellee.Before MURPHY and SMITH, Circuit Judges, and SCHREIER,¹ District Judge.SMITH, Circuit Judge.

Brandon Bennett pleaded guilty to distributing and conspiring to distribute Benzylpiperazine (BZP) in violation of federal law. At sentencing, Bennett objected to the district court's ² conclusion that BZP was sufficiently equivalent to Methylenedioxymethamphetamine (MDMA)—the chemical name for the drug commonly called “Ecstasy”—to compute Bennett's drug quantity under the Sentencing Guidelines. The district court denied Bennett's objection and sentenced Bennett at the bottom of the advisory Guidelines range to 57 months' imprisonment. Bennett appeals and, for the reasons that follow, we affirm.

I. Background

On August 11, 2008, Jackson County, Missouri Drug Task Force officers purchased 50 tablets of BZP for $400 from Bennett through a confidential informant. On August 21, 2008, an undercover detective purchased five tablets of BZP for $50 from Bennett. On August 29, 2008, a second detective purchased 100 BZP tablets for $775. On September 4, 2008, authorities purchased another 100 tablets for $750.

On October 29, 2008, authorities arrested Bennett after a failed attempt to purchase another 100 BZP tablets. Bennett waived his Miranda rights and promptly confessed to selling the tablets and purchasing them from his codefendant, Randy “Roller Coaster” Robinson. Subsequently, Bennett pleaded guilty to two counts of distributing BZP, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and one count of conspiring to distribute BZP, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846.

Before his sentencing hearing, Bennett filed a sentencing memorandum arguing that the “sentencing guidelines contain no reference to BZP at all” and that, “[b]ecause the Sentencing Commission has not studied BZP, the court has no basis to defer to the advisory guideline range as a reasonable sentence.” Bennett attached to his sentencing memorandum a study from the National Drug Intelligence Center indicating that the typical dosage of BZP ranges from 20 to 200 milligrams, and that “BZP is 10 to 20 times less potent than amphetamine.” Bennett also cited a district court case from the Middle District of Alabama in which the district judge concluded that BZP was less potent than Ecstasy and varied downward on that basis. See United States v. Rose, 722 F.Supp.2d 1286 (M.D.Ala.2010).

On May 25, 2010, the district court continued Bennett's sentencing to further review Bennett's objections to BZP and MDMA's relatedness. In response, United States Probation authored a second addendum to the Presentence Investigation Report (PSR) in which it calculated Bennett's base offense level pursuant to U.S.S.G. § 2D1.1, Application Note 5. That provision directs the sentencing court to determine the amount, for sentencing purposes, of a controlled substance based on the marihuana equivalency of the most closely related controlled substance referenced in the Guidelines. The PSR determined that BZP was most closely related to MDMA/Ecstasy. According to the drug equivalency table, one gram of MDMA equals 500 grams of marihuana.³ Approximately 330 grams of BZP was attributed to Bennett, which is roughly equal to 165 kilograms of marihuana, yielding a base offense level of 26.

On October 5, 2010, the district court reconvened Bennett's sentencing hearing. The court opened the hearing, stating:

THE COURT: And I believe Mr. Moss has filed a sentencing memorandum on August 30th, 2010, as well. And I will advise the—the parties and so the record is clear, I have reviewed all those documents. I have reviewed—I've received some more—another letter, at least one other letter in support of Mr. Bennett. And I have reviewed all the letters in this file from his parents, sisters, and other people, and I have reviewed the presentence investigation report again.

(Emphases added.)

The district court itemized each of the § 3553(a) factors and analyzed Bennett's offense and circumstances in relation to those factors. Before announcing the sentence, the district court said:

THE COURT: So I've—I've thought about this a long time. Mr.—Mr. Moss has made some pretty good arguments during the course of this case that required me to do some research and required the probation people to—to look at this drug that we're dealing with this, this BZP. While it may not be in the sentencing guidelines, it is illegal. It does affect the community. It does hurt children. It does hurt people in our community. So with that said, I—I think I fashioned a sentence that I hope is consistent with our—with the guidelines, and also consistent with the goals of 3553(a).

Concluding BZP was sufficiently related to Ecstasy, the district court calculated Bennett's advisory Guidelines range at 57 to 71 months' imprisonment. Bennett requested a downward variance of 36 months based on the lack of BZP and Ecstasy relatedness, but the district court sentenced Bennett at the bottom of the advisory Guidelines range to 57 months' imprisonment.

II. Discussion

On appeal, Bennett maintains that the district court committed prejudicial procedural error by failing to consider Bennett's objections that BZP is insufficiently similar to MDMA, in both potency and properties, to justify the use of the MDMA quantity tables in calculating the Guidelines range applicable to a BZP offense.

“In reviewing for procedural error, we review the district court's application of the [G]uidelines de novo and its factual findings for clear error.” United States v. Dixon, 650 F.3d 1080, 1083 (8th Cir.2011) (citing United States v. Paz, 622 F.3d 890, 891 (8th Cir.2010)). Moreover, when the defendant does not object at sentencing to an alleged procedural defect, we review only for plain error. United States v. Townsend, 618 F.3d 915, 918 (8th Cir.2010). However, because a review of the transcript reveals that Bennett did contemporaneously object to the district court's application of the § 3553(a) factors, plain-error review does not apply here.

In reviewing a criminal defendant's sentence, we “ ‘must first ensure that the district court committed no significant procedural error.’ ” United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “ ‘Procedural error’ includes ‘failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.’ ” Id. (emphases added) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Here, Bennett maintains that the district court procedurally erred when it (1) “ignored undisputed scientific studies and legal authority that demonstrated BZP is significantly less serious, less harmful, and less dangerous than both MDMA and amphetamine”; and (2) failed to adequately explain its reasons for rejecting Bennett's evidence and argument concerning BZP's and MDMA's lack of commonality. Both of Bennett's arguments are meritless.

Concerning Bennett's first point that the district court wholly “ignored” his objection that BZP and MDMA lacked sufficient equivalency, the record reflects that the district court appropriately...