United States v. Qayyem
| Decision Date | 10 January 2012 |
| Docket Number | 10 Cr. 19(KMW) |
| Parties | UNITED STATES OF AMERICA v. BASHER QAYYEM, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Pursuant to a written plea agreement, Defendant Basher Qayyem ("Qayyem") pled guilty to one count of conspiracy to distribute and possess with intent to distribute 3,4-methylenedioxymethamphetamine ("MDMA"), commonly known as ecstasy, and 1 -benzylpiperazine ("BZP"), in violation of 21 U.S.C. §§ 841 and 846. Qayyem argues that prior to imposing sentence, this Court must resolve two issues: (1) whether the current 500:1 marijuana equivalency1 for MDMA set forth in the United States Sentencing Guidelines ("the Guidelines") is too harsh in light of recent research on the harmful effects of MDMA relative to other drugs; and (2) whether BZP, a Schedule I controlled substance not specifically referenced in the Guidelines, is most closely related to MDMA, a referenced controlled substance, when combined with 3-Trifluoromethylphenylpiperazine ("TFMPP"), a noncontrolled substance.2
For the following reasons, the Court finds that the 500:1 marijuana equivalency prescribed by the Guidelines for MDMA-related offenses is greater than necessary to serve the objectives of sentencing, and it instead adopts a 200:1 marijuana equivalency. It also finds that the referenced controlled substance that is most closely related to a combination of BZP and
TFMPP is MDMA.
On October 2, 2009, Qayyem was arrested for his involvement in three separate transactions in which a co-conspirator sold pills containing MDMA and pills containing BZP to a confidential source through controlled buys conducted by the Drug Enforcement Administration ("DEA"). In the first transaction, the confidential source purchased three pills, which, after being sent to a DEA laboratory for testing, were determined to consist of .73 grams of MDMA. In the second transaction, the confidential source bought 515 pills determined to contain 153 grams of BZP. In the third transaction, the confidential source purchased an additional 540 pills consisting of 160 grams of BZP. The lab reports issued by the DEA stated that the pills containing BZP also contained TFMPP, a noncontrolled substance.3 On July 5, 2011, Qayyem pled guilty to one count of conspiracy to distribute and possess with intent to distribute a total of .73 grams of MDMA and 313 grams of BZP.
Under United States v. Booker, 543 U.S. 220 (2005), the Guidelines are only advisory. A district judge must consider the range prescribed by the Guidelines as one factor among several when determining an appropriate sentence, but she "may determine that, in the particular case, a within-Guidelines sentence is greater than necessary to serve the objectives of sentencing."Kimhrough v. United States, 552 U.S. 85, 91 (2005) (internal quotation omitted). A judge may depart from the Guidelines range "based solely on a policy disagreement with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses." United States v. Cavern, 550 F.3d 180, 192 (2d Cir. 2008) (citing Kimhrough, 552 U.S. at 107-08). In particular, a court is free to reject guidelines that it determines are based "on assumptions about... relative harmfulness . . . that more recent research and data no longer support." Kimhrough, 552 U.S. at 95, 98 (). A district court that disagrees with the Guidelines ratio may replace the ratio with one that, "in [its] judgment, corrects the disparity." Spears v. United States, 555 U.S. 261, 265 (2009) ()
Under the Guidelines, the current MDMA-to-marijuana equivalency is 500:1; that is, 1 gram of MDMA is deemed to be equivalent to 500 grams of marijuana for sentencing purposes. See U.S.S.G. § 2D1.1 Application Note 10(D). The 500:1 ratio was established in 2001, pursuant to the Ecstasy Anti-Proliferation Act of 2000 ("the Act"), which directed the United States Sentencing Commission ("the Commission") to increase penalties for offenses relating to the manufacture and trafficking of MDMA. Prior to the Act's passage, the Guidelines provided for a 35.T marijuana equivalency.
The Commission stated that its adoption of a 500:1 marijuana equivalency "reflects the unique pharmacological and physiological harm of ecstasy, the fact that the drug is aggressively marketed to and used by youth, and its importation and trafficking patterns." United StatesSentencing Commission, Report to the Congress: MDMA Drug Offenses—Explanation of Recent Guideline Amendments 5 (2001) (hereinafter "Report"), The Commission's decision was guided in part by its determination that MDMA was more dangerous than powder cocaine, which has a 200:1 marijuana equivalency under the Guidelines, but less dangerous than heroin, which has a 1000:1 marijuana equivalency. See Report 4-5.
The Commission argued that the penalties for MDMA trafficking should be greater than those for cocaine because: "(1) unlike MDMA, powder cocaine is not neurotoxic, (2) powder cocaine is not aggressively marketed to youth in the same manner as MDMA, and (3) powder cocaine is only a stimulant, but MDMA acts as both a stimulant and a hallucinogen." Report 5. By contrast, the Commission determined that a lesser penalty structure was warranted for MDMA trafficking than for heroin trafficking because:
(1) there are many more heroin cases in the federal system than MDMA cases; (2) heroin is more addictive than MDMA; (3) heroin has many more emergency room visits and deaths associated with its use than MDMA, because, unlike MDMA, which is generally taken orally, heroin is injected; (4) heroin has more violence associated with both its users and distribution system than MDMA, in part because MDMA users typically do not resort to violence to support their drug use; and (5) heroin causes greater secondary health effects, such as the spread of HIV and hepatitis, because it is injected.
Report 5.
Qayyem argues that the Commission's adoption of the 500:1 MDMA-to-marijuana equivalency was based on "highly selective and incomplete analysis of the information" made available to the Commission, and that research post-dating the Report has further eroded the scientific basis for the Commission's conclusion that MDMA is more than twice as harmful as cocaine. (Def, Mem. at 3.) According to Qayyem, the most recent research indicates that, to the contrary, MDMA is less harmful than cocaine and ranks among the least harmful of many other controlled substances. Qayyem urges this Court to adopt a 100:1 marijuana equivalency, whichhe contends will accurately reflect MDMA's harm relative to other drugs, particularly cocaine.
Qayyem relies primarily on the findings set forth in a recent decision issued in this district, United States v. McCarthy, No. 09 Cr. 1136, 2011 WL 1991146, at *1 , in which Judge Pauley adopted a 200:1 marijuana equivalency for MDMA-related offenses after conducting an extensive evidentiary hearing to reevaluate the continuing validity of the research upon which the Commission relied. Although this Court has conducted its own review of much of the research, it credits and relies heavily upon the evidentiary findings set forth in McCarthy.
As noted, the Commission concluded that MDMA was less harmful than heroin with respect to five factors: (1) the number of cases in the federal system; (2) addiction potential; (3) emergency room visits; (4) violence associated with use and distribution; and (5) secondary health effects. The Commission failed to compare MDMA to cocaine using this same five-factor rubric; had it done so, it would have found that MDMA is also less harmful than cocaine with respect to each factor, with the exception of the fifth factor, secondary health effects, which are similar for MDMA and cocaine. See McCarthy, 2011 WL 1991146 at *7. Such a "selective analysis is incompatible with the goal of uniform sentencing based on empirical data." Id.
With respect to the number of cases in the federal system, there are approximately twice as many cocaine-related cases in the federal criminal justice system than there are MDMA-related cases. The most recent statistics released by the Bureau of Justice indicate that, in 2009, there were 8,491 DEA arrests for powder cocaine, compared to 4,701 such arrests for methamphetamines. U.S. Dep't of Justice, Federal Justice Statistics, 2009—Statistical Tables 6 (2009), available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2374; see alsoMcCarthy, 2011 WL 1991146 at *7 ().
The data on drug-related emergency room visits is particularly stark. In 2009, 422,896 emergency room visits (43.4%) involved cocaine abuse, whereas 22,816 visits (2.3%) were attributable to MDMA abuse. U.S. Dep't of Health & Human Services, Drug Abuse Warning Network, 2009: National Estimates of Drug-Related Emergency Department Visits 27-28 (2011); see also McCarthy, 2011 WL 1991146 at *6 (). Even controlling for the fact that cocaine is more widely used than MDMA, as of 2007, the former was approximately 16 times more likely to lead to hospitalization than the latter. McCarthy, 2011 WL 1991146 at *6.
As to violence associated with use and distribution, the evidence clearly indicates that cocaine trafficking is associated with higher incidences of violence than is MDMA. The Commission itself acknowledged this in its report, stating that there is a "lower presence of violence associated with...
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