United States v. Thomas Malone, Jr.
809 F.3d 251
| 5th Cir. | 2015Background
- Malone and Green, owners of NutraGenomics, sold synthetic cannabinoid AM-2201 (including as "Mr. Miyagi") after JWH-018 was banned; they admitted distributing ≥1400 kg of AM-2201 and earning ≥$10,000,000.
- They pleaded guilty to one count of conspiracy to distribute AM-2201 (a controlled substance analogue) in exchange for dismissal of other charges and agreed to cooperate.
- PSRs treated AM-2201 as most closely related to THC and used the Guidelines' THC-to-marijuana conversion ratio of 1:167, yielding a marijuana-equivalent quantity that placed both defendants at base offense level 38.
- Defense contested both the choice of THC as the "most closely related" substance and the 1:167 conversion ratio; experts for both sides testified at an evidentiary hearing.
- District court found THC was the most closely related substance, declined to vary the 1:167 ratio under Kimbrough, granted §5K1.1 motions but gave only 30% reductions from the top of the guideline range, and sentenced both to 117 months.
- Defendants appealed on five sentencing grounds; the Fifth Circuit affirmed in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether THC is the "most closely related" controlled substance to AM-2201 | Malone/Green: animal-study-based evidence is unreliable; Allen supports excluding such evidence | Gov't: animal and pharmacological studies reasonably show THC/AM-2201 act similarly; district court's factual finding should stand | Affirmed: district court's factual finding not clearly erroneous given evidentiary hearing and deference to sentencing factfinding |
| 2. Whether court must or should vary the 1:167 THC:marijuana ratio under Kimbrough | Malone/Green: court should exercise Kimbrough discretion to reject arbitrary ratio | Gov't: Guidelines remain controlling; 1:167 can be applied absent Commission change | Held: Even if district court misstated scope of Kimbrough, any error was harmless — sentence would be the same |
| 3. Whether non-assistance factors improperly influenced the size of §5K1.1 departures | Malone/Green: court cited seriousness/harm when limiting departures, violating Desselle | Gov't: any error harmless; Desselle interpreted not to bar downward limitation here | Held: Court erred by mixing steps and citing non-assistance factors, but error was harmless on this record |
| 4. Whether extent of §5K1.1 departures and §3553(a) balancing were unreasonable | Malone/Green: departures were too small and §3553(a) factors misweighed | Gov't: district court has wide discretion over departure extent and balancing; defendants received guideline sentences | Held: No reversible error; appellate court lacks jurisdiction to second-guess extent of §5K.1.1 departures absent legal error, and §3553(a) balancing was reasonable |
Key Cases Cited
- Kimbrough v. United States, 552 U.S. 85 (Sup. Ct. 2007) (district courts may vary from Guidelines based on policy disagreement)
- United States v. Burns, 526 F.3d 852 (5th Cir. 2008) (sentencing judge must be aware of Kimbrough discretion)
- United States v. Duarte, 569 F.3d 528 (5th Cir. 2009) (district courts need not parse empirical basis for each Guidelines element)
- United States v. Desselle, 450 F.3d 179 (5th Cir. 2006) (extent of §5K1.1 departure must be based solely on assistance-related concerns)
- Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194 (5th Cir. 1996) (criticizing reliability of certain animal studies in trial context)
- United States v. Hashimoto, 193 F.3d 840 (5th Cir. 1999) (limited appellate review of the extent of §5K1.1 departures)