681 F.3d 45
2d Cir.2012Background
- David pled guilty to conspiracy and possession charges related to ecstasy (BZP/TFMPP/caffeine) pills at the border and in Canada; the pills’ composition included TFMPP and caffeine per a DEA report not in district court record.
- District Court calculated a base offense level of 38 via marijuana equivalency for the mixture under §2D1.1, despite MDMA not being the exact substance charged.
- Court applied a two-level acceptance of responsibility reduction, yielding an adjusted level of 36 and a guideline range of 188–235 months.
- Court treated David’s Canadian criminal history as warranting an extended sentence beyond the CHC-based range.
- On appeal, David challenges the drug-quantity substitute, reliance on a dismissed indictment, sentence reasonableness, and ineffective assistance claims.
- This court remanded for resentencing after decisions in Chowdhury and Figueroa clarified the proper substitute and due process for the equivalency analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BZP should be matched to MDMA for §2D1.1 microwave equivalency. | David argues MDMA is not the proper substitute. | David contends BZP lacks MDMA-like effects requiring MDMA substitution. | Remanded for reevaluation of the substitute. |
| Whether reliance on a dismissed indictment affected sentencing validity. | David asserts improper reliance on dismissed indictment. | David contends no prejudice from the indicted record. | Remand for record clarification on use of the dismissed indictment. |
| Whether the sentence was procedurally proper given remand and new evidence. | David argues procedural error taints sentencing. | Court could impose a high sentence under proper procedure. | Remand to recompute under corrected guidelines; substantive review not reached. |
Key Cases Cited
- United States v. Chowdhury, 639 F.3d 583 (2d Cir. 2011) (BZP/TFMPP mixture treated as MDMA for §2D1.1 substitute; TFMPP considered.)
- United States v. Figueroa, 647 F.3d 466 (2d Cir. 2011) (BZP alone not shown to be MDMA substitute; remand for evidentiary determination.)