U.S. v. Carlson

• Decision Date: 05 July 1996
• Docket Number: 94-2662 and 94-2797,Nos. 93-3456,s. 93-3456
• Citation: 87 F.3d 440
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David CARLSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carina LEVERIZA, a/k/a Carina Franz, a/k/a Karen, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter FRANZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 440

87 F.3d 440

UNITED STATES of America, Plaintiff-Appellee, v. David CARLSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Carina LEVERIZA, a/k/a Carina Franz, a/k/a Karen,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Walter FRANZ, Defendant-Appellant.

Nos. 93-3456, 94-2662 and 94-2797.

United States Court of Appeals Eleventh Circuit.

July 5, 1996.

Brent D. Shore, Tromberg Shore Harrison & Safer, Jacksonville, FL, for David Carlson.

Thomas A. Larkin, Jacksonville, FL, for Carina Leveriza.

Ralph E. Elliott, Jr., Jacksonville, FL, for Walter Franz.

James H. Klindt, Asst. U.S. Atty., Tamra Phipps, Peggy Morris Ronca, Jacksonville, FL, for Appellee in all cases.

Appeals from the United States District Court for the Middle District of Florida.

Before EDMONDSON and DUBINA, Circuit Judges, and LOGAN ^*, Senior Circuit Judge.

LOGAN, Senior Circuit Judge:

Defendants David Carlson, Walter A. Franz and Carina Leveriza-Franz (Leveriza) appeal their convictions, and Carlson also appeals his sentence in these consolidated cases. Each pleaded guilty to one count of conspiracy to manufacture and distribute 3,4-Methylenedioxymethamphetamine (MDMA), in violation of 21 U.S.C. §§ 813, 841(a) and 846. All defendants contend that 21 U.S.C. §§ 802(32) and 813 are unconstitutionally vague, and that MDMA was neither validly scheduled as a controlled substance nor as a controlled substance analogue under the Analogue Act, 21 U.S.C. § 813, during the time charged in the indictment. In addition, Carlson argues that the district court improperly denied his collateral attack on the Drug Enforcement Administration (DEA) order of February 1988 scheduling MDMA and erroneously applied the special skill enhancement of the Sentencing Guidelines, USSG § 3B1.3, to increase his sentence. Franz asserts that the government breached his plea agreement by withdrawing its motion for downward departure for substantial assistance.

I

Defendants participated in a large and sophisticated conspiracy for the manufacture and distribution of MDMA. ¹ Defendant Leveriza, a chemist, originally worked for Michael Clegg, producing and crystallizing MDMA for sale and distribution. Clegg's laboratory manufactured approximately ten kilograms of MDMA each month. Defendant Franz and Bud Franklin purchased the MDMA lab from Clegg in 1984 and relocated it to Mexico in 1985 when MDMA became illegal in the United States. Because they lacked an effective distribution network Franz and Franklin enlisted Clegg in 1987 to establish MDMA distribution in the United States. Under this arrangement, the Mexican lab produced twenty kilograms of MDMA per month beginning in the fall of 1987. Franz and Franklin shipped the MDMA to California where it was tabulated or poured into capsules for distribution.

In 1988 Clegg decided to expand to Europe. He hired defendant Carlson, another chemist, to manufacture MDMA in Panama to distribute in Europe. After the 1989 U.S. invasion of Panama, Carlson established yet another lab, this time in Brazil. By 1990 Leveriza and Franz had married and moved to Brazil to assist in the MDMA manufacturing process. Carlson left Brazil and moved to California. In 1991, to finance the expansion of the European market, Franz and Clegg agreed to increase output from the Brazilian lab to fifty kilograms per month. This higher output for a ten-month period completely funded the Brazilian lab and European operation.

When a confidential informant learned of and reported these activities to the DEA, an undercover agent investigated and infiltrated the operation. That investigation led to defendants' arrests and indictments. Defendants pleaded guilty, reserving the right to appeal issues they raised in their motions to dismiss. See United States v. Franz, 818 F.Supp. 1478 (M.D.Fla.1993).

II

We review defendants' contention that the Controlled Substance Analogue Enforcement Act of 1986 (the Analogue Act), 21 U.S.C. § 802(32), is unconstitutionally vague under a de novo standard. United States v. Trout, 68 F.3d 1276, 1279 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1032, 134 L.Ed.2d 110 (1996). "Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). We thus focus on the Analogue Act as applied in the instant cases. "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). Defendants primarily raise the "notice" prong of the vagueness doctrine.

Defendants contend that the phrases "substantially similar" chemical structure and "substantially similar" effect on the central nervous system contained in the definition of a controlled substance analogue are not adequately defined in the Act. ² They assert they received no fair warning their conduct was illegal and the statute contains no standards for channeling prosecutorial discretion, relying on United States v. Forbes, 806 F.Supp. 232 (D.Colo.1992). ³

The district court properly rejected these contentions, in accord with United States v. Hofstatter, 8 F.3d 316 (6th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1101, 127 L.Ed.2d 413 (1994), United States v. Granberry, 916 F.2d 1008 (5th Cir.1990), and United States v. Desurra, 865 F.2d 651 (5th Cir.1989). See United States v. Raymer, 941 F.2d 1031, 1045-46 (10th Cir.1991) (recognizing MDMA qualified as controlled substance analogue under Analogue Act); People v. Silver, 230 Cal.App.3d 389, 394-95, 281 Cal.Rptr. 354 (2 Dist.1991) (upholding California statute that followed language of Analogue Act in prohibiting MDMA).

In Hofstatter the Sixth Circuit discussed the use of "substantially similar" in the definition of a "controlled substance analogue" in § 802(32)(A)(i) and found it sufficiently precise. It pointed out that the "intended for human consumption" language of 21 U.S.C. § 813 effectively "discourages arbitrary or discriminatory application of the law," 8 F.3d at 322, because that language allows for legitimate uses (such as growing crystals).

The Desurra court examined the procedural background of scheduling MDMA as a controlled substance and as an analogue and concluded that "[t]he legislative history of the Analogue Act makes clear that MDMA is a controlled substance analogue. The DEA's efforts [to schedule it as a controlled substance] if anything, gave [the Desurra ] defendants additional notice that MDMA was an illicit drug." 865 F.2d at 653.

The defendants here obviously had actual notice that possessing precursor chemicals was prohibited. Franz assisted in moving the lab from California to Mexico in 1985 when MDMA first became illegal in the United States. He and Leveriza set up the lab. They ordered chemicals needed to manufacture precursors of MDMA and to manufacture MDMA. Carlson established labs in both Panama and Brazil. One catalyst for passing the Analogue Act was "the development of MDMA by drug dealers trying to escape regulation of MDA [a Schedule I controlled substance]." Id. (citing S.Rep. No. 99-196, 99th Cong., 1st Sess. 2 (1985) and H.R.Rep. No. 99-848, 99th Cong.2d Sess. 4 (1986)). The Analogue Act is not unconstitutionally vague as applied to defendants.

III

Defendants next argue that the DEA did not validly schedule MDMA as a controlled substance. They specifically assert that the DEA should have held additional hearings after Grinspoon v. DEA, 828 F.2d 881 (1st Cir.1987), vacated the 1986 final rule originally labeling MDMA a Schedule I controlled substance.

MDMA followed a circuitous path toward Schedule I status. In 1984 the DEA Administrator recommended scheduling MDMA, issuing a notice of proposed rulemaking, and scheduling hearings that began in early 1985. An administrative law judge (ALJ) heard thirty-three witnesses and admitted ninety-five exhibits into evidence over the course of nine days of hearings. He ultimately recommended MDMA for Schedule III status, determining that MDMA had an accepted medical use and safety for use under medical supervision and that the government had not established a high potential for abuse of MDMA. The Administrator rejected that recommendation and placed MDMA on Schedule I, ⁴ effective November 13, 1986 (the 1986 final rule). 51 Fed.Reg. 36552-01 (1986). The Administrator focused on § 812(b)(1)(B) and (C) and the Food and Drug Administration's (FDA) refusal of new and investigational drug applications for MDMA. Thus, the Administrator concluded that because MDMA could not be marketed legally it lacked both any currently accepted medical use in treatment and accepted safety for use under medical supervision. The Administrator also concluded that MDMA had a high potential for abuse.

Grinspoon vacated the 1986 final rule labeling MDMA as a Schedule I controlled substance and remanded the case to the DEA "for further consideration." 828 F.2d at 891. The court held that the Administrator improperly relied on the absence of FDA approval to support the findings required by § 812(b)(1)(B) and (C). Shortly thereafter, on January 27, 1988, the DEA deleted MDMA from Schedule I pending the Administrator's reconsideration of the record from the earlier scheduling proceedings and issuance of another final rule.

The Administrator issued another final rule (the 1988 final rule) effective March 23, 1988 placing MDMA on Schedule I. The Administrator relied on the existing hearing record, specifically concluding that it was complete and had provided all interested parties an opportunity to present evidence and brief the issues.

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