United States v. Ramos, s. 15–1592

• Decision Date: 09 February 2016
• Docket Number: Nos. 15–1592,15–1602.,s. 15–1592
• Parties: UNITED STATES of America Plaintiff–Appellee v. Earl James RAMOS, also known as E.J. Defendant–Appellant. United States of America Plaintiff–Appellee v. Mary Ann Ramos Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

814 F.3d 910

UNITED STATES of America Plaintiff–Appellee

v.Earl James RAMOS, also known as E.J. Defendant–Appellant.

United States of America Plaintiff–Appellee

v.Mary Ann Ramos Defendant–Appellant.

Nos. 15–1592

15–1602.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 21, 2015.

Filed: Feb. 9, 2016.

Corrected Feb. 23, 2016.

Rehearing and Rehearing En Banc Denied April 4, 2016.^*

John Leonard Lane, argued and on the brief in No. 15–1592, Cedar Rapids, IA, for appellant.

Michael Kevin Lahammer, argued and on the brief in No. 15–1602, Cedar Rapids, IA, for appellant.

Mark Tremmel, AUSA, argued, Dan Chatham, AUSA, on the brief, Cedar Rapids, IA, for appellee.

Before RILEY, Chief Judge, BRIGHT and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Mary Ann Ramos and her son, Earl James Ramos, were convicted on several drug-distribution counts. Mary Ramos argues that the district court¹ erred by denying her motion for judgment of acquittal. Both defendants contend that the court improperly calculated their advisory sentencing guidelines range. We affirm.

I.

Mary Ramos managed an iWireless store in Cedar Rapids, Iowa. On May 28, 2013, two Drug Enforcement Administration ("DEA") agents posed as customers and entered her store. When the agents asked Mary if she sold "potpourri," Mary nodded and retrieved packets labeled "Mr. Happy" and "Mr. Nice Guy." The agents selected cotton-candy-flavored "Mr. Nice Guy." While walking to the register, Mary asked if the agents needed rolling papers. They declined and then paid $26.75 for the 10.2 gram packet. Although the "Mr. Nice Guy" packet bore a label indicating that its contents were "100% Cannabinoid Free/DEA Compliant," later testing at a DEA laboratory revealed that the packet contained organic plant material sprayed with the Schedule I controlled substance XLR–11, a synthetic cannabinoid.

Several weeks later, a confidential informant working with the Tri–County Drug Enforcement Task Force called Mary and asked to meet at 9:50 p.m. When Mary asked what the caller was "trying to get," the informant requested "Mr. Nice Guy" and "whatever jar you got." Mary said that she had "Blue" but did not have "Mr. Nice Guy." Mary instead offered the caller "Mr. Happy" and "Insane," which were available in quantities of twelve and ten grams, respectively. The informant asked for "Mr. Happy," and he stated that he wished to spend "around 80 or 90" on "the bath salt" and the "Mr. Happy." Mary drove to meet the informant at a gas station in a nearby town and sold the informant one packet of "Mr. Happy" and one jar of "Blue" for a total of $75. Mary did not charge the informant tax for the purchase nor did she later process the transaction through her register at the iWireless store. A later DEA test determined that the "Blue" weighed 0.2 grams and contained pyrrolidinopentiophene (á-PVP), a substance with a chemical structure substantially similar to the Schedule I controlled substance methylenedioxypyrovalerone ("MDPV") and with a pharmacological effect substantially similar to MDPV, cocaine, and methamphetamine.

Not long after these incidents, the DEA and Cedar Rapids police executed a search warrant at Mary's store. The agents and officers recovered "Blue" from a drawer under the register counter. They also located hundreds of packets containing synthetic cannabinoids around the store, including in a drawer under the counter, a back storage room, and the back office. None of the synthetic cannabinoid products were advertised in the store. Nearly all of these products contained XLR–11, and some also contained UR–144, a second synthetic cannabinoid. Labels on many of these packets noted that the product should not be consumed by humans. The agents and officers also found smoking paraphernalia, including glass pipes and rolling papers. They found no loose tobacco in the store.

The DEA and Cedar Rapids police also searched Mary's car and home. In the car, the agents and officers found an unloaded handgun and four boxes of ammunition immediately next to a box containing several containers of "Blue." They also found packets containing synthetic cannabinoids in the back pocket of the driver's seat. In Mary's home, the officers and agents found more synthetic cannabinoids and another box of "Blue." The box's label read "scouring powder" and bore the image of a silhouetted woman in front of a disco ball. Each jar of "Blue" contained between 0.2 and 0.4 grams of á-PVP.

Mary was indicted for several drug-related counts—including distribution of a controlled substance (XLR–11), see 21 U.S.C. § 841(a)(1), distribution of a controlled substance analogue (á-PVP), see 21 U.S.C. §§ 813, 841(a)(1), possession with intent to distribute a controlled substance (XLR–11), see 21 U.S.C. § 841(a)(1), possession with intent to distribute a controlled substance analogue (á-PVP), see 21 U.S.C. §§ 813, 841(a)(1) —and possession of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c). At trial, the Government provided evidence regarding Mary's encounters with the undercover officers and the confidential informant. The Government also called expert witnesses to testify regarding the synthetic cannabinoids and á-PVP. Another Government witness testified regarding the street names of the drugs at issue.

At the conclusion of the trial, the district court instructed the jury. Regarding the controlled substance counts for XLR–11, the court explained that the Government had to prove that Mary "knew that the substance was some kind of prohibited drug." For the controlled substance analogue counts involving "Blue," the court instructed the jury:

[T]he government must prove: (1) the defendant knew that Alpha–PVP was intended for human consumption; and (2) the defendant knew (a) the chemical structure of Alpha–PVP is substantially similar to the chemical structure of a controlled substance in Schedule I or II; and (b) Alpha–PVP either has or was represented by the defendant 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 as a controlled substance in Schedule I or II.

After the jury returned its guilty verdicts on the drug-related counts,² Mary renewed her motion for judgment of acquittal. She argued that the Government had failed to offer sufficient evidence regarding her knowledge. The district court denied this motion.

Earl Ramos managed the Five Star Snacks and Iowa Wireless store in Waterloo, Iowa. Beginning in 2012, Earl sold synthetic cannabinoids—including XLR–11, UR–144, AM–2201, and JWH–081–and synthetic cathinones from his store. Earl elected not to go to trial and instead pleaded guilty to one count of distributing pentedrone, a controlled substance analogue, see 21 U.S.C. § 841(a)(1). The court accepted his plea.

Before sentencing Mary and Earl, the district court conducted a joint evidentiary hearing on the nature of the various synthetic cannabinoids sold by the defendants. Synthetic cannabinoids are Schedule I substances; however, they are not listed in the Guidelines Manual drug-equivalency tables. The court thus sought to determine whether the synthetic cannabinoids were more closely related to pure tetrahydrocannabinol ("THC") or marijuana, a plant that naturally contains THC. This decision guided the court's conclusion about which marijuana-equivalency ratio to use when calculating the defendants' base offense levels under the sentencing guidelines. USSG § 2D1.1 cmt. 6. If the synthetic cannabinoids were more closely related to THC, the Guidelines Manual dictated a 1:167 marijuana-equivalency ratio, meaning that one gram of the synthetic cannabinoid product would be treated as 167 grams of marijuana. USSG § 2D1.1 cmt. 8(D). In contrast, if marijuana were the more similar controlled substance, the applicable ratio would be 1:1. Id.

At the hearing, the Government called Dr. Jordan Trecki, a DEA pharmacologist, to testify regarding the pharmacological effect and potency of the synthetic cannabinoids. Dr. Trecki explained that each of the synthetic cannabinoids involved in the case has an effect on the central nervous system that is substantially similar to THC. He testified that all but two of the synthetic cannabinoids sold by the defendants are at least as potent as, if not more potent than, THC. Dr. Trecki also discussed the adverse side effects of various synthetic cannabinoids, including hallucinations, psychoses, severe agitation, and excited delirium. Finally, Dr. Trecki noted that synthetic cannabinoids are distinguishable from marijuana in several ways, including (1) the lack of a chemical moderating the effects of THC that is present in marijuana and (2) the synthetic drugs' increased likelihood of producing seizures, coma, and death. Based on this testimony, the court concluded that THC was the scheduled substance most closely related to the synthetic cannabinoids at issue. The court thus applied a 1:167 marijuana-equivalency ratio to determine the defendants' base offense levels and advisory sentencing guidelines ranges. The court ultimately sentenced Earl to 57 months' imprisonment, a sentence within his sentencing guidelines range, and Mary to 60 months' imprisonment, a downward variance from her advisory guidelines range of 97–121 months.

II.

The defendants raise several issues on appeal. Mary contends that the district court erred by denying her motion for judgment of acquittal because the evidence was insufficient to support her conviction. In addition, both Mary and Earl argue that the court improperly calculated their sentencing guidelines ranges based on the erroneous finding that THC was more closely related to the synthetic cannabinoids at issue.

A.

Our court reviews de novo the denial of a motion for judgment of acquittal. United States v. Malloy, 614 F.3d 852, 860 (8th Cir.2010). "In doing so, we ‘view the...