United States v. Giggey

• Citation: 867 F.3d 236
• Decision Date: 14 August 2017
• Docket Number: No. 16-2391,16-2391
• Parties: UNITED STATES of America, Appellee, v. Leda GIGGEY, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

867 F.3d 236

UNITED STATES of America, Appellee,

v.Leda GIGGEY, Defendant, Appellant.

No. 16-2391

United States Court of Appeals, First Circuit.

August 14, 2017

Matthew S. Erickson on brief for appellant.

Richard W. Murphy, Acting United States Attorney, Renée M. Bunker, Assistant United States Attorney, Appellate Chief, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.

Before Kayatta, Selya and Barron, Circuit Judges.

SELYA, Circuit Judge.

Controlled substances continue to cast a dark shadow over a large segment of American society. That situation is made even worse by the proliferation of new permutations of such substances. Synthetic cathinones, colloquially known as bath salts, represent one of these permutations, and we recently had occasion to warn that their illegal use was becoming a mounting problem in the District of Maine. See United States v. Coombs , 857 F.3d 439, 443 & n.1 (1st Cir. 2017).

When drug offenses involve drugs not listed in the relevant tables incorporated in the sentencing guidelines, those drugs are converted into their marijuana equivalent for sentencing purposes. See USSG § 2D1.1, cmt. nn.6 & 8. This appeal requires us, for the first time, to pass upon the method and manner in which that conversion is effected with respect to synthetic cathinones. The court below used a conversion metric grounded in its finding that methcathinone is the drug referenced in the sentencing guidelines that is most closely related to the synthetic cathinone alpha-pyrrolidinopentiophenone (alpha-PVP). Using this metric, the court sentenced defendant-appellant Leda Giggey to a 72–month term of immurement. Discerning no clear error, we affirm.

I. BACKGROUND

We briefly rehearse the facts and travel of the case, drawing upon the plea agreement, the uncontested portions of the presentence investigation report, and the transcript of the disposition hearing. See United States v. Del Valle–Rodríguez , 761 F.3d 171, 173 (1st Cir. 2014) ; United States v. Dietz , 950 F.2d 50, 51 (1st Cir. 1991). Between 2012 and 2015, the defendant procured 2,120.75 grams—more than 21,000 individual doses—of synthetic cathinones, some from local suppliers and some from China. During this period, she became one of the foremost dealers of bath salts in Aroostock County, Maine. After some time had gone by, law enforcement officers threw a monkey wrench into her drug-distribution business: they executed a search warrant at her residence and found 1.07 grams of alpha-PVP, a drug ledger, two digital scales, and a cellular telephone replete with incriminating text messages. The defendant's arrest followed apace.

In due course, the defendant pleaded guilty to conspiracy to distribute and possession with intent to distribute controlled and analogue substances. See 21 U.S.C. §§ 813, 841(a)(1), 846. Federal drug laws classify proscribed drugs in five separate schedules, which are updated on an annual basis. See id. § 812(a). Because alpha-PVP was not listed on any of these schedules until March of 2014, see Schedules of Controlled Substances: Temporary Placement of 10 Synthetic Cathinones into Schedule I, 79 Fed. Reg. 12,938, 12,941 (Mar. 7, 2014) (codified at 21 C.F.R. § 1308.11 ), the government prosecuted the defendant under the Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act), Pub. L. No. 99–570, §§ 1201–1204, 100 Stat. 3207– 13, 3207–13 to –14 (codified at 21 U.S.C. §§ 802(32), 813 ). The Analogue Act facilitates the regulation of new drugs which, though not currently outlawed, exhibit substantial similarities to a controlled substance found in either Schedule I or II.¹ See 21 U.S.C. § 802(32)(A). The Analogue Act defines a "controlled substance analogue" as:

[A] substance (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

Id.

Drug quantity is an important integer in the sentencing calculus for most controlled substance offenses. See United States v. Dunston , 851 F.3d 91, 94 (1st Cir. 2017). The sentencing guidelines implement this concept through, inter alia, the use of a Drug Quantity Table, see USSG § 2D1.1(c), and Drug Equivalency Tables, see id. § 2D1.1, cmt. n.8(D).

As a practical matter, less commonly used drugs and new drugs are frequently not referenced in these tables. In such cases, the drug must be converted into the marijuana equivalent quantity of the most closely related controlled substance listed in the guidelines. Here, the government argued that methcathinone (a Schedule I controlled substance) was the appropriate comparator for alpha-PVP. The defendant countered that pyrovalerone (a Schedule V controlled substance) was more closely related to alpha-PVP than methcathinone and, therefore, was the appropriate comparator. The defendant's sentence turned, to a large extent, on the outcome of this dispute: if methcathinone was deemed to be the proper comparator, the defendant's guideline sentencing range (GSR) promised to be appreciably higher.

The district court convened the disposition hearing on November 8, 2016. Drug quantity was hotly contested in motion papers filed prior to the hearing. As matters turned out, the district court had confronted this same quandary in an earlier case. See United States v. Brewer , No. 1:15–cr–00003, 2016 WL 3580614 (D. Me. June 28, 2016). Rather than reinventing the wheel, the court opted to incorporate by reference its previous analysis, which found methcathinone to be the most closely related controlled substance to alpha-PVP for sentencing purposes.² On that basis, the court found the defendant responsible for the equivalent of 805.89 kilograms of marijuana.³

With this finding as the linchpin, the court made certain offense-level adjustments (not relevant here), calculated the defendant's total offense level (30), and placed her in criminal history category I. These subsidiary findings yielded a GSR of 97–121 months. After considering the factors limned in 18 U.S.C. § 3553(a), the court imposed a downwardly variant sentence of 72 months' imprisonment. This timely appeal ensued.⁴

II. ANALYSIS

At the outset, we pause to review the methodology used to determine drug quantity for crimes involving prohibited drugs not specifically referenced in the sentencing guidelines. To begin, the guidelines provide a series of base offense levels for controlled substance offenses. See USSG § 2D1.1. The most common controlled substances (for example, heroin, cocaine, marijuana, and the like) appear in the Drug Quantity Table, which specifies particular base offense levels depending upon the drug type and quantity involved in a given offense. See id. § 2D1.1(c). Many less common drugs are assigned ratios in the Drug Equivalency Tables, which permit conversion of a given quantity of any of these controlled substances into its "equivalent quantity of mari[j]uana." Id. § 2D1.1, cmt. n.8(A)(i); see United States v. Demers , 842 F.3d 8, 12 (1st Cir. 2016). In such instances, sentencing courts "[u]se the offense level that corresponds to the equivalent quantity of mari[j]uana [in the Drug Quantity Table] as the base offense level for the [actual drug] involved in the offense." USSG § 2D1.1, cmt. n.8(A)(iii); see United States v. Hurley , 842 F.3d 170, 171–72 (1st Cir. 2016).

Although the Drug Quantity Table and the Drug Equivalency Tables together cover a broad array of controlled substances, these tables do not exhaust the universe of prohibited drugs. When either a controlled substance or a controlled substance analogue does not appear in either of the tables, the sentencing court must calculate the offender's base offense level using the marijuana equivalent of "the most closely related controlled substance" that is referenced in the tables. USSG § 2D1.1, cmt. n.6; see Hurley , 842 F.3d at 171–72. To determine which drug is most closely related, three factors must be considered. They include

(1) whether the unreferenced controlled substance has a chemical structure that is substantially similar to a controlled substance referenced in the guidelines;

(2) whether the unreferenced controlled substance has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant, depressant, or hallucinogenic effect of a controlled substance referenced in the guidelines;

(3) whether a lesser or greater quantity of the unreferenced controlled substance is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in the guidelines.

See USSG § 2D1.1, cmt. n.6.

Once the proper comparator has been identified, the court calculates the unreferenced drug's marijuana equivalent using the marijuana equivalent value assigned to the comparator in the Drug Equivalency Tables. See id. § 2D1.1, cmt. nn.6 & 8. The offender's base offense level is then established by comparing this deduced marijuana equivalent quantity to the appropriate tier in the Drug Quantity Table. See id. § 2D1.1(c) & cmt. nn.6 & 8.

In the case at hand, the defendant challenges the district court's selection of methcathinone as the appropriate comparator for alpha-PVP on two distinct grounds. First, she asserts that the district court erred by restricting its search for a comparator drug to Schedule I and II...