United States v. Malone
| Decision Date | 06 July 2016 |
| Docket Number | Cons w/ 15-30011,No. 14-31426,14-31426 |
| Citation | 828 F.3d 331 |
| Parties | United States of America, Plaintiff–Appellee v. Thomas William Malone, Jr., Defendant–Appellant. United States of America, Plaintiff–Appellee v. Drew T. Green, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Camille Ann Domingue, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Lafayette, LA, for Plaintiff–Appellee.
Steven Howard Sadow, Esq., Law Office of Steven H. Sadow, P.C., Atlanta, GA, for Defendant–Appellant.
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
IT IS ORDERED that the petitions for panel rehearing and the petitions for rehearing en banc are DENIED. We WITHDRAW Part II.B of the opinion previously filed on December 11, 2015, and SUBSTITUTE the following amended opinion.
Thomas William Malone, Jr. and Drew T. Green pleaded guilty to one count of conspiracy to distribute and possess with the intent to distribute AM–2201, a controlled substance analogue, in violation of 21 U.S.C. §§ 846, 841(b)(1)(c), 813, 802(32)(A). The district court sentenced them both to 117 months of imprisonment followed by three years of supervised release. They appeal their sentences on several different grounds. We AFFIRM.
Thomas William Malone, Jr. and Drew T. Green were the owners of NutraGenomics Mfg L.L.C. Prior to March 2011, NutraGenomics distributed JWH-018 throughout the United States. When new federal and state laws banned this substance, NutraGenomics discontinued its distribution and began selling several new synthetic cannabinoids, one of which was AM–2201. Malone and Green sold AM–2201 both in bulk and as part of a product called “Mr. Miyagi”—a mixture of AM–2201 and vegetable material that visually resembled marijuana. Though Mr. Miyagi was, with a wink, labeled as potpourri not fit for human consumption, the expectation was that the user would smoke the product in order to get high off its active ingredient, AM–2201. Malone and Green brought in Boyd A. Barrow and Joshua Espinoza to manufacture and distribute Mr. Miyagi, both now co-defendants. They in turn sold a large quantity of Mr. Miyagi to Richard Buswell, who distributed it at stores throughout Louisiana.
On September 4, 2012, a federal grand jury in the Western District of Louisiana returned a superseding indictment charging Malone, Green, and several co-defendants with one count of conspiracy to distribute and possess with the intent to distribute AM–2201, a controlled substance analogue, one count of conspiracy to introduce and cause to be introduced misbranded drugs into interstate commerce, and one count of conspiracy to commit money laundering. Within about two weeks, Malone and Green had reached plea agreements with the Government in which they agreed to cooperate and plead guilty to the count of conspiracy to distribute AM–2201 in exchange for the dismissal of the remaining counts. They pled guilty to one count of conspiracy to distribute and possess with the intent to distribute a Schedule I Controlled Dangerous Substance, in violation of 21 U.S.C. §§ 846, 841(b)(1)(c), 813, 802(32)(A). As part of their pleas, Malone and Green admitted to distributing not less than 1400 kilograms of AM–2201, and earning not less than $10,000,000 from the conspiracy.
The guilty pleas were accepted, and the probation office prepared presentence reports (“PSRs”). Because AM–2201 is not listed in either the Drug Quantity Table or the Drug Equivalency Tables, the PSRs had to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance” to AM–2201.1 The Sentencing Guidelines require that three factors guide this inquiry:
Based upon the consideration of these factors, the PSRs determined that Tetrahydrocannabinol, or THC, was the “most closely related controlled substance” to AM–2201. The Drug Equivalency Tables specify a 1 to 167 ratio for converting THC into marijuana; that is, the Sentencing Guidelines treat one gram of THC as equivalent to 167 grams of marijuana.3 Using this ratio, the PSRs concluded that Appellants should be held responsible for 233,800 kilograms of marijuana4 —and that the base offense level for both should be set at 38, the highest level set forth by the Drug Quantity Table.5
Appellants objected to the use of a 1:167 ratio to convert the 1400 kilograms of AM–2201 into marijuana. Instead, they argued that a 1:1 ratio was appropriate because marijuana, not THC, is the “most closely related controlled substance” to AM–2201. Alternatively, they asked the district court to exercise its discretion under Kimbrough v. United States6 to reject the 1:167 ratio. These objections prompted an evidentiary hearing. Two experts—one for the Government and one for the defense—testified at length in the hearing about the available scientific data on AM–2201. The Government's expert, Dr. Jordan Trecki, relied on five different categories of evidence to support his opinion that THC is the “most closely related substance” to AM–2201: (1) a “binding study” showing that THC and AM–2201 bind to the same cannabinoid receptor; (2) a “functional assay” showing that THC and AM–2201 both activate this receptor; (3) a drug discrimination study showing that (a) rats cannot tell the difference between THC and AM–2201 and that (b) AM–2201 is more potent than THC; (4) a “tetrad study” showing that rats react similarly to THC and JWH-018, an analogue of AM–2201; and (5) case studies showing that THC and AM–2201 have similar effects on human users. The defense expert, Dr. Nicholas Cozzi, devoted much of his testimony to criticizing the evidence relied upon by Dr. Trecki. In particular, Dr. Cozzi criticized Dr. Trecki for relying on animal studies—as opposed to human studies—and combining the results of several different studies—each of which was inconclusive standing alone—to form his opinion. When asked to provide his opinion, Dr. Cozzi remarked that it was “kind of a nonscience question,” but testified that marijuana was the “most closely related controlled substance” to AM–2201 because “it's consumed in the same way and it's consumed for the same effect.” Both experts agreed, however, that there was no scientific basis for the 1:167 ratio used to convert THC into marijuana.7
The next day, the district court issued an oral ruling on Appellants' objections. Citing the evidence relied upon by Dr. Trecki, the district court concluded that the Government had demonstrated by a preponderance of the evidence that THC was the “most closely related controlled substance” to AM–2201. The court further declined to rely upon Kimbrough to reject the 1:167 ratio. Though acknowledging that “the ratios in the sentencing guidelines are often arbitrary,” the district court stated that these ratios “seek to outline the relative harm of certain drugs.” The court also noted that Kimbrough involved the comparison of “one ratio for one drug to another ratio for another drug” while this case concerned just one ratio. The district court then held separate, closed hearings on the two § 5K1.1 motions filed by the Government on behalf of Appellants. After hearing brief testimony, the court agreed to grant both § 5K1.1 motions, but withheld any ruling on the extent of the sentencing reductions until it sentenced Malone and Green later that afternoon. The guideline range for both was the same: 135 to 168 months. Based on their cooperation, the district court awarded a 30% reduction from the top of this range and sentenced them both to 117 months of imprisonment followed by three years of supervised release.
Appellants raise five claims of sentencing error: (1) the district court erred in concluding that THC is the “most closely related controlled substance” to AM–2201; (2) the district court did not recognize its discretion under Kimbrough v. United States8 to vary from the 1:167 ratio for converting THC into marijuana; (3) the district court considered non-assistance-related factors in reducing the extent of their § 5K1.1 departures; (4) the district court awarded unreasonably small § 5K1.1 departures; and (5) the district court erred in balancing the 18 U.S.C. § 3553(a) factors. We address each claim of error in turn.
Malone and Green challenge the district court's conclusion that THC is the “most closely related controlled substance” to AM–2201. Like Dr. Cozzi, they criticize the animal studies cited by Dr. Trecki as unreliable and incapable of providing meaningful insight into the effects of AM–2201 on human users. Moreover, Appellants argue that this Court explicitly endorsed their arguments in Allen v. Pennsylvania Engineering Corp.9 In Allen, this Court concluded that the animal studies relied upon by the plaintiffs were “unreliable” and incapable of “furnish[ing] a scientifically valid basis for the conclusion” that the plaintiffs wished to draw.10 In effect, Appellants ask us to do the same here.
We decline to do so. Allen concerned the admission of expert testimony at trial —this is a sentencing case. “[T]he appropriate standard regarding the admissibility of evidence at sentencing is substantially lower than that governing admissibility at trial.”11 Under...
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...under Kimbrough and, if appropriate, its willingness to deviate from the advisory range on such grounds." See United States v. Malone , 828 F.3d 331, 340 (5th Cir. 2016) (citing Kimbrough v. United States , 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) ). In that same case, we supporte......
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Presenting Your Expert at Trial and Arbitration
...at p. 4. The judge cited Cooper v. Takeda Pharmaceuticals America, Inc., 239 Cal. App. 4th 555, 592 (2015) and United States v. Malone, 828 F.3d 331, 337 (5th Cir. 2016) as potentially barring a trial judge’s resolution of scientific controversy, but acknowledged that the remaining question......
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Presenting Your Expert at Trial and Arbitration
...at p. 4. The judge cited Cooper v. Takeda Pharmaceuticals America, Inc., 239 Cal. App. 4th 555, 592 (2015) and United States v. Malone, 828 F.3d 331, 337 (5th Cir. 2016) as potentially barring a trial judge’s resolution of scientific controversy, but acknowledged that the remaining question......
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Presenting Your Expert at Trial and Arbitration
...at p. 4. The judge cited Cooper v. Takeda Pharmaceuticals America, Inc., 239 Cal. App. 4th 555, 592 (2015) and United States v. Malone, 828 F.3d 331, 337 (5th Cir. 2016) as potentially barring a trial judge’s resolution of scientific controversy, but acknowledged that the remaining question......
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