United States v. Thomas Malone, Jr.
828 F.3d 331
| 5th Cir. | 2016Background
- Malone and Green, owners of NutraGenomics, pleaded guilty to conspiracy to distribute AM-2201 (a synthetic cannabinoid analogue) and admitted possession/distribution of at least 1,400 kg of AM-2201 and $10,000,000 in proceeds; sentenced to 117 months imprisonment after cooperating.
- PSRs converted AM-2201 to THC (finding THC the “most closely related controlled substance”) and then converted THC to marijuana using the Guidelines 1:167 THC:marijuana ratio, leading to a marijuana-equivalent quantity that produced base offense level 38.
- Defense challenged both (a) the identification of THC as the most closely related substance and (b) use of the 1:167 conversion ratio; experts testified at an evidentiary hearing with disagreement over animal-study inferences and lack of scientific basis for the 1:167 ratio.
- District court found by a preponderance of the evidence that THC was the most closely related substance, declined to vary under Kimbrough from the 1:167 ratio, granted §5K1.1 motions but applied 30% reductions (less than defendants sought), and imposed 117-month sentences.
- On appeal, defendants raised five sentencing errors: misidentification of the related substance, failure to recognize Kimbrough discretion, improper consideration of non-assistance factors in §5K1.1 departures, departures too small, and improper balancing of §3553(a) factors; Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether THC is the “most closely related controlled substance” to AM-2201 for Guidelines conversion | Malone & Green: animal studies are unreliable; marijuana (leaf) is more closely related because consumed similarly | Government: biochemical, functional, animal, and human case evidence supports THC as most closely related | Court: Affirmed district court; evidentiary standard at sentencing lower than trial ("sufficient indicia of reliability"); no clear error in finding THC most closely related |
| Whether district court erred by not varying under Kimbrough from the 1:167 THC:marijuana ratio | Malone & Green: district court signaled it lacked awareness of Kimbrough discretion and thus wrongly refused to vary | Government: Guidelines ratios may be applied absent policy variance; district court ultimately acknowledged Kimbrough discretion on remand | Court: After limited remand, district court acknowledged Kimbrough authority but declined to vary; rejection affirmed |
| Whether district court considered improper non-assistance factors in setting extent of §5K1.1 departures | Malone & Green: court cited seriousness of offense and harm when explaining smaller-than-requested departures, violating Desselle rule | Government: conceded some improper consideration but argued harmless or one-way ratchet applies | Court: Error (mixing steps) existed but was harmless given district court would reach same overall sentence; Desselle rule stands prohibiting non-assistance factors in determining extent of §5K1.1 departures |
| Whether court can review size of §5K1.1 departures | Malone & Green: departures were unreasonably small given cooperation | Government: district court has discretion on extent; only legal violations reviewable | Court: No jurisdiction to review discretionary size absent legal error; affirmed (only legal-error claims are reviewable) |
| Whether district court misweighed §3553(a) factors | Malone & Green: court overemphasized negative factors and underweighted mitigation/cooperation | Government: court considered mitigating factors and departures reflect cooperation | Court: No reversible error; discretionary balancing not disturbed |
Key Cases Cited
- Kimbrough v. United States, 552 U.S. 85 (recognition of district court discretion to vary from Guidelines based on policy disagreement)
- Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194 (5th Cir.) (critique of animal-study reliability in trial context)
- United States v. Desselle, 450 F.3d 179 (5th Cir.) (extent of §5K1.1 departures must be based solely on assistance-related concerns)
- United States v. Hashimoto, 193 F.3d 840 (5th Cir.) (limited appellate jurisdiction over extent of §5K1.1 departures)
- United States v. Burns, 526 F.3d 852 (5th Cir.) (defendant entitled to sentencing judge aware of Kimbrough discretion)