United States v. Le'Ann Koss
2016 U.S. App. LEXIS 2044
| 5th Cir. | 2016Background
- In 2013 investigators uncovered a family-run operation growing high-grade marijuana in California and transporting large quantities to Texas; Le’Ann Koss pleaded guilty to conspiracy and aiding and abetting possession with intent to distribute >50 kg of marijuana.
- At Koss’s Texas residence authorities seized 5.42 kg of homemade "marijuana butter" (described in lab reports as a moldy green substance) and 7.03 g of a "brown chunky substance." Texas DPS lab reports detected THC in both items.
- The PSR converted those items to marijuana-equivalents using the Sentencing Guidelines’ Schedule I Marijuana equivalency (1 g THC = 167 g marijuana), treating the full weight of each mixture as containing detectable THC; this produced ~906.31 kg marijuana-equivalent from those items and a total attributable amount of 954.679 kg.
- PSR assigned base offense level 30 (then 27 after acceptance), Criminal History I, Guidelines range 70–87 months; district court adopted PSR and sentenced Koss to 70 months concurrent on each count.
- On appeal Koss argued (1) the 1:167 ratio was misapplied to these mixtures (should have used 1:1 for substances containing marijuana or 1:5 for hashish), (2) evidence was insufficient to show "substances containing THC," and (3) the listing of THC in the equivalency table is ambiguous (invoking lenity).
Issues
| Issue | Plaintiff's Argument (Koss) | Defendant's Argument (Gov't / Court) | Held |
|---|---|---|---|
| Whether the Guidelines permit applying the 1:167 THC-to-marijuana ratio to whole-weight mixtures (marijuana butter, brown chunky substance) | 1:167 applies only to pure/synthetic THC or high‑potency THC; mixtures made using marijuana itself should be weighed 1:1 or treated as hashish (1:5) absent purity data | Guidelines and commentary direct that the full weight of any mixture containing a detectable amount of THC is used and conversion is 1:167; exceptions exist where notes explicitly require purity, but not for THC | Affirmed: district court properly applied 1:167 to whole weight; no procedural error in guideline interpretation |
| Sufficiency of evidence that items were "substances containing detectable THC" for sentencing | Lab reports merely show THC present; Koss argues reports do not classify concentration/purity or show items weren’t hashish | DPS lab reports recorded detectable THC and net weights; PSR presumed reliable; defendant bore burden to produce competent rebuttal evidence at sentencing but presented none | Affirmed: factual finding not clearly erroneous; lab reports sufficient and unchallenged |
| Substantive reasonableness of the within-Guidelines 70-month sentence | Sentence is substantively unreasonable given Koss was a medical marijuana user who made butter for self‑medication; application of harsh 1:167 ratio yields disproportionate result | Sentencing court considered §3553(a) factors and the totality of criminal conduct (interstate distribution conspiracy and Koss’s facilitation); within-Guidelines sentence enjoys presumption of reasonableness | Affirmed: no abuse of discretion; defendant failed to rebut presumption |
| Ambiguity of THC listing and applicability of rule of lenity | Listing of THC in equivalency table is ambiguous; absence of purity requirement creates constitutional vagueness—lenity should apply to reduce sentence | THC is defined in federal regulations; guideline text is plain: mixtures containing detectable THC are weighed in full and converted by 1:167; lenity applies only if ambiguity remains after construction | Affirmed: guideline language unambiguous; lenity inapplicable |
Key Cases Cited
- Groce v. United States, 784 F.3d 291 (5th Cir.) (two-step reasonableness review of sentence)
- Gall v. United States, 552 U.S. 38 (2007) (procedural requirements and review standard for sentences)
- Cisneros-Gutierrez v. United States, 517 F.3d 751 (5th Cir.) (de novo review of guideline interpretation; clear‑error review of factual findings)
- Betancourt v. United States, 422 F.3d 240 (5th Cir.) (drug-quantity factual determinations reviewed for clear error)
- Chapman v. United States, 500 U.S. 453 (1991) (entire weight of mixture containing detectable amount counts for §841 calculations)
- Haines v. United States, 803 F.3d 713 (5th Cir.) (drug-quantity controlling amount for statutory ranges)
- Malone v. United States, 809 F.3d 251 (5th Cir.) (district courts need not re-evaluate empirical basis of Guidelines ratios)
- Serfass v. United States, 684 F.3d 548 (5th Cir.) (ordinary canons of statutory construction apply to guideline interpretation)