UNITED STATES of America, Plaintiff-Appellee v. Le‘Ann KOSS, Defendant-Appellant.
No. 14-51173.
United States Court of Appeals, Fifth Circuit.
Feb. 5, 2016.
Before STEWART, Chief Judge, and KING and HIGGINSON, Circuit Judges.
Denton Bryan Lessman (argued), Waco, TX, for Defendant-Appellant.
CARL E. STEWART, Chief Judge:
Appellant Le‘Ann Koss (“Koss“) pleaded guilty to two federal drug offenses involving quantities of marijuana and was sentenced to 70 months’ imprisonment on each offense, to run concurrently. On appeal, Koss raises several challenges to her sentence, all of which relate to the district court‘s determination that two substances involved in the offenses—a homemade “marijuana butter” and a “brown chunky substance“—were substances containing detectable amounts of Tetrahydrocannabinol (“THC“) for purposes of calculating their marijuana equivalency using the 1:167 gram conversion ratio in the Sentencing Guidelines’ Drug Equivalency Table for Schedule I Marijuana. See
BACKGROUND AND PROCEEDINGS
In 2013, law enforcement agencies received information suggesting that the Koss family was involved in the growth and interstate transfer of high-grade marijuana. A subsequent investigation revealed that, for several years, members of the Koss family had grown large amounts of marijuana at residences in California (purportedly under the guise of medical marijuana collectives) and used various individuals to transport the marijuana to Texas for distribution. During the course of a later presentence interview, Koss admitted that she had, on several occasions, obtained marijuana from one of her sons involved in the marijuana operation; distributed that marijuana to another individual who thereafter sold it; and essentially acted as a bookkeeper for one of her sons by collecting money in exchange for marijuana, writing down sales information, and paying the son‘s bills. During the same interview, Koss detailed that she had a number of medical conditions, that she self-medicated these conditions with marijuana, and that she had made marijuana-infused butter to ingest and aid in her self-medication.
The investigation eventually resulted in a superseding indictment that charged Koss and six co-defendants, including her husband and two of their sons, with one count of conspiracy to possess with intent to distribute in excess of 50 kilograms of marijuana and one count of aiding and abetting possession with intent to distribute in excess of 50 kilograms of marijuana. Koss pleaded guilty to both offenses without a plea agreement.
For sentencing purposes, the presentence investigation report (“PSR“) held Koss personally accountable for “at least 954.679 kilograms of marijuana.” This amount included 7.03 grams of a “brown
Based on the 954.679 kilograms of marijuana attributable to her, the PSR calculated Koss’ base offense level as 30 under
Koss filed a pre-sentencing objection to the PSR‘s use of the 1:167 gram ratio to convert the marijuana butter to its marijuana equivalent for purposes of calculating her base offense level. In that filing, Koss argued that the PSR incorrectly used the 1:167 gram ratio because that ratio was only applicable to substances made using pure THC, not substances like the marijuana butter that contained THC as an active ingredient merely because it was made using marijuana itself. Along the same lines, Koss argued that the Guidelines’ Drug Equivalency Tables “clearly anticipate greater punishment for substances with higher concentration or potency” and, thus, the marijuana butter could not be treated as a substance containing THC for sentencing purposes because no quantification had been done on the purity or concentration of THC in the butter.
In a separate presentencing memorandum, Koss further fleshed out her objection to the use of the 1:167 gram ratio for the marijuana butter calculation and added a challenge to the PSR‘s use of the same ratio to calculate the marijuana equivalency of the brown chunky substance. Koss argued that the PSR mischaracterized the marijuana butter as a substance containing THC and that the substance was actually “a substance containing marijuana,” the equivalency of which should have been calculated using the 1:1 gram ratio in
At sentencing, Koss, through counsel, re-urged her objections to the offense level calculations pertaining to the marijuana butter and the brown chunky substance. Koss did not challenge the results of the lab reports as inaccurate or otherwise offer evidence disputing the reports; rather, Koss continued to argue that the reports failed to classify the two substances in a manner that was consistent with the Guidelines, i.e., the reports failed to quantify the concentration of THC in the marijuana butter so as to justify the 1:167 gram THC ratio as opposed to the 1:1 gram marijuana ratio and similarly failed to classify the brown chunky substance as hashish for purposes of the 1:5 gram hashish ratio as opposed to the 1:167 gram THC ratio. The district court overruled Koss’ objections and adopted the PSR‘s offense level and Guidelines-range calculations, explaining that “the probation office has correctly used the information it has and the only information it has which is th[e] lab report[s] and it has correctly applied the guidelines in arriving at the amount of controlled substance that should be used.” The court then sentenced Koss to a within-Guidelines sentence of 70 months’ imprisonment on each count, to run concurrently, and five years of supervised release. Koss timely appealed.
DISCUSSION
On appeal, Koss presents several procedural and substantive challenges to her sentence, all of which derive from her argument that the district court erred when it used the 1:167 gram ratio in reference to the 5.42 kilograms of marijuana butter and the 7.03 grams of the brown chunky substance. Koss also contends that the separate listing of THC in the Drug Equivalency Table for Schedule I Marijuana, see
We first address whether the district court committed procedural or substantive error in imposing Koss’ sentence. We review sentences “for reasonableness using a two-step process.” United States v. Groce, 784 F.3d 291, 294 (5th Cir. 2015). First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [
Relevant here, “[t]he district court‘s calculation of the quantity of drugs involved in an offense is a factual determination.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (quoting United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)). Such a factual finding is “entitled to considerable deference and will be reversed only if [it is] clearly erroneous.” Id. (quotation marks and citation omitted). Generally, “[a] factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole,” and, “[u]ltimately, the district court need only determine its factual findings at sentencing by a preponderance of the relevant and sufficiently reliable evidence.” Id. at 246-47 (quotation marks and citations omitted).
If we are convinced that the district court‘s factual determinations were not clearly erroneous and that the sentence imposed is otherwise procedurally sound, we proceed to the second step of our review and consider the substantive reasonableness of the sentence. See Groce, 784 F.3d at 294. “Appellate review for substantive reasonableness is highly deferential, because the sentencing court is in a better position to find facts and judge their import under the
A.
Koss argues that the district court committed several procedural errors in imposing her sentence. Specifically, Koss challenges as error the district court‘s application of the 1:167 gram ratio in
1.
Despite Koss’ arguments, we are not convinced that the district court erred in interpreting and applying the Guidelines. Each of Koss’ arguments here begins with one of two non-starters, to wit, either the notion that federal statutes and the Sentencing Guidelines are silent and provide no legal definition of THC or the notion that the Guidelines fail to provide adequate guidance on how to calculate the marijuana equivalency of mixtures or substances containing detectable amounts of THC. Contrary to the first assertion, the Code of Federal Regulations defines the term THC in detail. See
As to the second assertion, Koss points to no infirmity in the Guidelines’ careful directions for how to calculate the marijuana equivalency of substances—like the marijuana butter and the brown chunky substance at issue—that contain detectable amounts of THC. As is relevant here, the Guidelines instruct that a defendant‘s base offense level for violations of
In addition,
Section 2D1.1(c) also expressly carves out caveats for certain controlled substances where the relevant weight for purposes of calculating a defendant‘s base offense level is the weight of the controlled substance itself, not the entire weight of the substance and its carrier medium, which requires evidence of purity or concentration. Specifically,
Though requiring several steps, the language of
At sentencing, the district court adopted the PSR‘s calculation that 954.679 kilograms of marijuana were attributable to Koss in relation to the charged offenses. This amount was based, in relevant part, on the DPS lab reports, which indicated that the marijuana butter and the brown chunky substance contained detectable amounts of THC and that each substance had a net weight of 5.42 kilograms and 7.03 grams, respectively. Because THC is not a substance listed in the Drug Quantity Table, the PSR referred to the Drug Equivalency Table for Schedule I Marijuana in
Consequently, using the full weight of the substances, the PSR converted the 5.42 kilograms of marijuana butter to 905.14 kilograms of marijuana equivalent and the 7.03 grams of the brown chunky substance to 1.7401 kilograms of marijuana equivalent. The PSR then added those two amounts to 48.365 kilograms of marijuana otherwise involved in the conspiracy to arrive at a total of 954.679 kilograms of marijuana attributable to Koss for sentencing purposes. That total drug quantity resulted in a base offense level of 30 under
Based on the foregoing, we conclude that the district court‘s step-by-step application of the 1:167 gram ratio to calculate the marijuana equivalency of the marijuana butter and the brown chunky substance, and the resulting Guidelines-sentencing range, was sound. Thus, the district court committed no procedural error, unless, as Koss argues, the sentencing evidence was insufficient to show that the marijuana butter and the brown chunky substance were indeed substances containing detectable amounts of THC. We next discuss Koss’ factual challenges to that effect.
2.
In addition to her general challenges to the district court‘s interpretation and application of the Guidelines, Koss challenges the sufficiency of the evidence supporting the district court‘s drug quantity determination. Specifically, Koss argues that the preponderance of the sentencing evidence did not support the district court‘s determination that the marijuana butter and the brown chunky substance were in fact substances containing detectable amounts of THC for purposes of applying the 1:167 gram ratio in the Drug Equivalency Table for Schedule I Marijuana, see
We conclude that the district court‘s determination that the marijuana butter and the brown chunky substance were substances containing detectable amounts of THC for purposes of the 1:167 gram ratio was not clearly erroneous in light of the available sentencing evidence. At sentencing, the district court relied upon the information in the PSR, namely and as is relevant here, the DPS lab reports, to determine the total drug quantity attributable to Koss for sentencing purposes. As set forth above, the DPS lab reports indicated that the marijuana butter and the brown chunky substance did in fact contain detectable amounts of THC and that each substance had a net weight of 5.42 kilograms and 7.03 grams, respectively. Such information in the PSR is presumed reliable, and Koss bore the burden “to demonstrate by competent rebuttable evidence that the information [was] materially untrue, inaccurate or unreliable.” United States v. Gomez-Alvarez, 781 F.3d 787, 796 (5th Cir. 2015) (quotation marks and citation omitted); see also United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013) (“Generally, a PSR bears sufficient indicia of reliability to permit the sentencing court to rely on it at sentencing. . . . [I]n the absence of rebuttal evidence, the sentencing court may properly
Koss did not attempt to present such rebuttal evidence, nor did she object to the admission of the DPS lab reports at sentencing or object to the results of the lab reports as inaccurate or materially untrue. As the Government points out in its brief, Koss did not call the Government‘s laboratory technician or any other chemist to testify; she did not offer any evidence of flaws in the DPS lab‘s practices; she did not take the stand at sentencing to explain how she made the marijuana butter6 or to clarify the contents of the brown chunky substance; nor did she call any witnesses to explain the contents of either substance. Absent contrary evidence, we hold that the DPS lab reports—which reflected that the marijuana butter and the brown chunky substance were in fact substances containing a detectable amount of THC—were sufficient to support application of the 1:167 gram ratio by a preponderance of the evidence and that the district court did not clearly err in calculating the marijuana equivalency of the marijuana butter and the brown chunky substance using that ratio.
Koss argues that the DPS lab reports provided an insufficient starting point for the district court‘s use of the 1:167 gram ratio. As to the brown chunky substance, Koss contends that the DPS lab reports were insufficient because the reports fail to account for the fact that the substance was actually hashish. Thus, Koss argues, application of the 1:167 gram ratio for a substance containing THC was inappropriate because
As to the marijuana butter, Koss’ challenge is two-fold. First, Koss contends that the DPS lab reports were insufficient to support application of the 1:167 gram ratio because the reports failed to quantify the concentration or purity of THC in the
Second, Koss argues that the DPS lab reports were insufficient to support application of the 1:167 gram ratio to the marijuana butter because the reports merely indicate that the butter contained THC. Koss maintains that this was insufficient because all five substances listed in the Drug Equivalency Table for Schedule I Marijuana—marijuana or cannabis (granulated, powdered, etc.); hashish oil; cannabis resin or hashish; and organic and synthetic THC—each contains THC as an active ingredient, and thus, a lab report that merely indicates that a substance contains THC could just as well mean that the substance contained marijuana itself and that a less harsh ratio should apply. We recognize the logical underpinnings of this argument. However, the plain language of the Guidelines states that mixtures or substances containing a detectable amount of THC are properly calculated using the 1:167 gram ratio. The DPS lab reports indicated that the marijuana butter was in fact a substance containing a detectable amount of THC, and Koss put on no evidence at sentencing tending to suggest that the reports’ results were inaccurate or that the DPS lab practices failed to test the marijuana butter in a manner that was consistent with the Guidelines. We therefore cannot conclude that the district court‘s determination was clearly erroneous.
In sum, we reject each of Koss’ procedural challenges to her sentence. Contrary to her assertions, we are convinced that the district court properly interpreted and applied the Guidelines, including its adoption of the PSR‘s use of the 1:167 gram ratio in
B.
Koss presents several challenges to the substantive reasonableness of her sentence, and we review each under the deferential abuse-of-discretion standard of review.7 For the
Koss further argues that her sentence was substantively unreasonable because the sentencing evidence suggested that she was merely a medical marijuana user who made marijuana butter to treat her medical conditions. Such arguments merely reiterate the mitigating circumstances presented to the district court. Koss has not shown that the district court improperly accounted for any of the
If anything, Koss’ mitigation arguments related to her medical uses for marijuana fail to account for the “totality of the circumstances” surrounding the charged offenses. See Gall, 552 U.S. at 51 (noting that the review of a sentence imposed for substantive reasonableness must “take into account the totality of the circumstances“). Beyond detailing Koss’ history with medical marijuana, the sentencing evidence also established that the charged conspiracy involved the interstate transfer and subsequent distribution of large quantities of high-grade marijuana and that Koss facilitated this drug operation to some extent by acting as a bookkeeper for one of the main conspirators and, at times, personally distributing marijuana. Because Koss has failed to rebut the presumption of reasonableness that attaches to her within-Guidelines sentence, and because Koss’ arguments fail to account for the totality of the circumstances surrounding the charged offenses, we conclude that the district court did not abuse its discretion in sentencing Koss to the low end of the applicable Guidelines-sentencing range. Accordingly, we reject Koss’ challenges to the substantive reasonableness of her sentence.
II.
Procedural and substantive challenges aside, Koss contends that the listing of THC in the Drug Equivalency Table for Schedule I Marijuana, see
We review Koss’ constitutional claim that the rule of lenity is applicable de novo. See United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001) (per curiam). “The rule-of-lenity fosters the constitutional due-process principle ‘that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited.’ ” Id. (quoting Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979)). The rule “applies only when, after consulting traditional canons of statutory construction,” this court is left with an ambiguous statute. Id. (quoting United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994)).
In interpreting the Guidelines, this court applies “the ordinary rules of statutory construction.” United States v. Serfass, 684 F.3d 548, 551 (5th Cir. 2012). If “the language of the guideline is unambiguous, the plain meaning of that language is controlling unless it creates an absurd result.” Id. Only where that language is ambiguous does the rule of lenity apply and require that the ambiguity be resolved in favor of a criminal defendant. Id.
We reject Koss’ first lenity argument—that neither federal statutes nor the Guidelines define THC, which creates a problem of “definitional ambiguity“—for the same reasons previously discussed in light of the statutory definition of THC at
As we meticulously set forth above,
Nor can we say that following the plain language of the Guidelines in this case, which leads to an application of the 1:167 gram ratio to the marijuana butter and the brown chunky substance, leads to an absurd result. See Serfass, 684 F.3d at 551-52 (noting that, under traditional canons of statutory construction, the plain language of the Guidelines controls “unless it creates an absurd result“). Indeed, the facts of this case, particularly the circumstances surrounding the marijuana butter, highlight why the Sentencing Commission would have sound reasons not to limit the reach of the 1:167 gram ratio based on considerations of purity. It could be difficult for the Guidelines to provide individualized guidance for all marijuana byproducts and edibles, the components of which
This is not to say that following the plain language of the Guidelines in this case does not lead to a harsh result. As Koss repeatedly urged at sentencing, we recognize the harshness that results from application of the 1:167 gram ratio, which is the stiffest penalty in the Drug Equivalency Table for Schedule I Marijuana, to homemade marijuana-edibles like the marijuana butter involved in the offenses with which Koss was charged. But, harshness without ambiguity does not require application of the rule of lenity, nor should it trigger an analysis of the Guidelines’ scientific bases and empirical precision.8 Cf. Albernaz v. United States, 450 U.S. 333, 342, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (“The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” (internal quotation marks and citation omitted)). The language of
Koss argues that ambiguity in the Drug Equivalency Table for Schedule I Marijuana is apparent if, again, one accepts her assertion that the Guidelines contemplate harsher punishments for substances containing more potent or concentrated controlled substances. Koss extends this assertion by arguing that, because the 1:167 gram ratio for THC is the harshest penalty in the Schedule I Marijuana Table, the only rational reading of the Table is that application of the 1:167 gram ratio is only appropriate where there is evidence that a mixture or substance contains a high concentration or purity of THC. This argument fails for several reasons. First, as
Finally, Koss argues that applying the rule of lenity in this case is appropriate under United States v. Bowen, 127 F.3d 9 (1st Cir. 1997), a case addressing whether the term “hashish oil” in
Two key features in Bowen drove the First Circuit‘s decision that lenity was required: first, federal statutes and the Sentencing Guidelines provided no definition of hashish oil at the time of the defendants’ conduct; and second, each party tendered experts who attempted to bridge this definitional gap by testifying as to reasonable definitions of the term hashish oil in connection with the “black, tar-like” substance at issue. Bowen, 127 F.3d at 13-15. In light of these two features, and based on the rule of lenity, the First Circuit held that the sentencing court erred in applying a broader definition of hashish oil, as opposed to a narrower definition that would have reduced the defendants’ sentences. Id. at 14-15.
Neither of these Bowen drivers is present here. First, as we have previously mentioned several times, the Code of Federal Regulations defines the term “THC” in detail. See
In sum, despite Koss’ harshness arguments and novel theory related to the
III.
Having carefully reviewed the record and Koss’ arguments on appeal, we conclude that Koss’ sentence, which was admittedly driven by the PSR‘s treatment of the marijuana butter and the brown chunky substance, was procedurally and substantively sound in light of the evidence that was available at sentencing. Because we also find no ambiguity in the controlling portions of the Guidelines that would warrant application of the rule of lenity, we AFFIRM.
Stanley ROBINSON, Petitioner-Appellant v. UNITED STATES of America, Respondent-Appellee.
No. 15-50045 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 5, 2016.
Before DAVIS, JONES, and HAYNES, Circuit Judges.
Joseph H. Gay, Jr., Asst. U.S. Atty., U.S. Attorney‘s Office, San Antonio, TX, Bradley M. Endicott, Saint Paul, MN, for Respondent-Appellee.
PER CURIAM:
Stanley Robinson, federal prisoner # 25071-044, moves for leave to proceed in forma pauperis (IFP) in this appeal from the dismissal of his
We have construed Robinson‘s motion as a challenge to the district court‘s determination that his appeal has not been brought in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations omitted).
Section 2255 provides “the primary means of collaterally attacking a federal sentence.” Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section 2241, on the other hand, is used to challenge “the manner in which a sentence is executed.” Id. A petition filed under
Robinson has not shown that he will raise a nonfrivolous issue on appeal. See Howard, 707 F.2d at 220. Accordingly, Robinson‘s IFP motion is DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202; 5th Cir. R. 42.2.