United States v. Major, Criminal No. 1:11cr16.

• Decision Date: 01 August 2011
• Docket Number: Criminal No. 1:11cr16.
• Citation: 801 F.Supp.2d 511
• Parties: UNITED STATES of America v. Joshua Brandon MAJOR.
• Court: U.S. District Court — Eastern District of Virginia

801 F.Supp.2d 511

UNITED STATES of America

v.Joshua Brandon MAJOR.

Criminal No. 1:11cr16.

United States District Court, E.D. Virginia,Alexandria Division.

Aug. 1, 2011.

Kimberly Riley Pedersen, United States Attorney's Office, Alexandria, VA, for United States of America.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

In this criminal prosecution, defendant pled guilty pursuant to a written plea agreement to one count of conspiracy to distribute N–Benzylpiperazine (BZP), in violation of 21 U.S.C. §§ 841 and 846, and one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The subsequent sentencing proceedings presented two significant issues requiring resolution, namely (i) the appropriate guidelines analysis for a drug offense involving BZP, a Schedule I controlled substance that is not specifically referenced in the guidelines, and (ii) whether defendant's three prior convictions for statutory burglary under Virginia law constituted predicate “violent felon [ies]” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), thus mandating a minimum fifteen-year custody sentence in this case. Following extensive briefing and oral argument, defendant was ultimately sentenced to concurrent sentences of three years on the drug conspiracy charge and fifteen years on the firearm charge, the mandatory minimum required under the ACCA. Recorded here are the reasons underlying the BZP and ACCA rulings made in the course of the sentencing proceedings.

I.

The starting point in the BZP analysis is, of course, the language of the guidelines themselves. In this regard, it is undisputed that BZP is a controlled substance that “is not specifically referenced” in the guidelines. U.S.S.G. § 2D1.1 cmt. n. 5. In that circumstance, the guidelines direct sentencing courts to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced” in the guidelines. Id. And, in determining the most closely related controlled substance, sentencing courts are advised to consider the following factors:

(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.

Id.

Despite the fact that BZP has been, and continues to be involved in criminal prosecutions across the country, it appears the Sentencing Commission has not yet advocated a formal position concerning “the most closely related controlled substance” to BZP for purposes of the guidelines analysis. This being the ease, sentencing courts must rely on published literature and chemical studies conducted by other external sources, such as the Drug Enforcement Administration (DEA). In this regard, the DEA's website expressly states that “the pharmacological effects of BZP are qualitatively similar to those of amphetamine.” NBenzylpiperazine (Street Names: BZP, A2, Legal E or Legal X). http:// www. deadiversion. usdoj. gov/ drugs_ concern/ bzp_ tmp/ bzp_ tmp. htm (last visited July 26.2011) (emphasis added).¹

The DEA's conclusion that BZP is “most closely related” to amphetamine for purposes of the guidelines analysis is consistent with recent judicial decisions from other circuits. See, e.g., United States v. Rose, 722 F.Supp.2d 1286, 1289 (M.D.Ala.2010) (stating that “[o]n its own, BZP is like amphetamine in that it is a central-nervous-system stimulant, although it is ten to 20 times less potent”). Other courts have also sensibly recognized that the fact that BZP is significantly less potent than amphetamine is an issue to be considered, not in determining the applicable base offense level under the guidelines, but instead in determining whether a variance from the advisory guidelines range is warranted in light of the factors set forth in 18 U.S.C. § 3553(a). See id. at 1291 (recognizing that defendant was entitled to a variance under § 3553(a), in part “[b]ecause the diminished potency of BZP ... was not accounted for in calculating [defendant's] offense level”).

In this case, using amphetamine as the most closely related drug to BZP results in a guidelines base offense level of 18 for defendant's drug conspiracy offense. Specifically, where, as here, the weight of the controlled substance is unknown, sentencing courts are directed to “multiply the number of doses, pills, or capsules by the typical weight per dose ... to estimate the total weight of the controlled substance.” U.S.S.G. § 2D1.1 cmt. n. 11. Here, the record reflects—and defendant admitted in his sworn statements of facts—that he is accountable for a total of 1.000 pills containing a detectable amount of BZP. See United States v. Major, 1:11cr16 (E.D.Va. Mar. 4, 2011) (Statement of Facts, ¶ 15) (providing that “the defendant was personally involved in the distribution of, and it was reasonably foreseeable to the defendant that the co-conspirators distributed 1,000 pills containing a delectable amount of N–Benzylpiperazine”). This quantity of pills, multiplied by the typical weight per dose of amphetamine results in an estimated weight of 10 grams of amphetamine. See U.S.S.G. § 2D1.1 cmt. n. 11 (providing that the typical weight per dose of amphetamine is 10 milligrams). Ten grams of amphetamine, in turn, equates to 20 kilograms of marijuana under the guidelines' equivalency table, resulting in a base offense level of 18 pursuant to U.S.S.G. § 2D1.1(c) (providing a base offense level of 18 for “[a]t least 20 KG but less than 40 KG of Marihuana”). Two additional levels were then added to this base offense level pursuant to U.S.S.G. § 2D1.1(b)(1), based on defendant's possession of a firearm, resulting in an adjusted offense level of 20 for the drug conspiracy charge.

As it happens, however, the BZP analysis and the resulting guidelines calculations were not ultimately determinative of defendant's final guidelines range of imprisonment given the higher offense level applicable to the related firearm offense. In this regard, the base offense level applicable to defendant's § 922(g) firearm offense was 20, pursuant to U.S.S.G. § 2K2.1(a)(4). Pour levels were then added to this base offense level under § 2K2.1(b)(6) as a result of defendant's possession of the firearm in connection with another felony offense—namely, the BZP conspiracy charge. These calculations resulted in an adjusted offense level of 24 for defendant's § 922(g) firearm offense. Thus, prior to any consideration of ACCA. application of the guidelines' grouping provisions set forth in U.S.S.G. § 3D1.2(c) resulted in a combined adjusted offense level of 24 for defendant's drug and firearm charges.

II.

Of course, the most significant question presented in the course of the sentencing proceedings was whether the ACCA mandated a minimum fifteen-year custody sentence on defendant's § 922(g) conviction The ACCA provides, in pertinent part, that any person convicted of unlawful possession of a firearm who has “three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another ... shall be fined under this title and imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). In this case, the government sought application of ACCA's enhanced penalty provisions based on three statutory burglary convictions from the Fairfax County Circuit Court, all from 1998 when defendant was 18 years old. Although defendant, by counsel, zealously contested application of the ACCA to the instant circumstances, a careful review of the record, as it existed at the time of the final sentencing hearing, ultimately revealed that ACCA's fifteen-year term of imprisonment was mandatory in this case.

To begin the analysis, ACCA defines the phrase “violent felony” as

any crime punishable by imprisonment for a term exceeding one year ... that—(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....

18 U.S.C. § 924(e)(2)(B). In determining whether a particular prior conviction constitutes a qualifying predicate ACCA conviction, sentencing courts must first apply the categorical approach. Under this approach, “a federal sentencing court may look only to the fact of conviction and the statutory definition of the offense of conviction to determine whether the offense is a ‘serious drug offense’ or a ‘violent felony’ under the ACCA.” United States v. Harcum, 587 F.3d 219, 222 (4th Cir.2009) (citing Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Yet. it is well-settled that the categorical approach “does not always reveal the nature of the asserted predicate offense encountered by a sentencing court.” Harcum, 587 F.3d at 223. Thus, “a sentencing court is entitled, in the proper circumstances, to go beyond the scope of the categorical approach and assess the underlying charging documents” or other specifically-approved documents or materials to ascertain whether the offense qualifies as an ACCA predicate offense. Id. (citing Taylor, 495...