United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Mr. Abuzuhrieh's
Objections to the Pre-Sentence Investigation Report
(“PSR”) [Doc. 154], and Mr. Abuzuhrieh's
Sealed Sentencing Memorandum, [Doc. 155], both filed on
September 29, 2016. The United States responded to Mr.
Abuzuhrieh's Objections on November 3, 2016, [Doc. 169],
and Mr. Abuzuhrieh replied on December 30, 2016, [Doc. 177].
This Court held an evidentiary hearing on January 18, 2017,
to hear expert testimony pertaining to Mr. Abuzuhrieh's
first objection. [Doc. 182]. The parties submitted briefs
following the evidentiary hearing. [Docs. 183, 184, 185]. The
Court, having considered the PSR, Objections, briefs,
relevant law, and expert testimony, and being otherwise fully
informed, finds that Mr. Abuzuhrieh's Objections are well
taken in part and will be sustained in part. Furthermore, in
considering the sentencing factors under 18 U.S.C. §
3553(a), the Court finds that a sentence within the
Guidelines range would be “greater than
necessary” and that a downward variance is warranted.
Abuzuhrieh was tried and convicted of crimes involving
“spice, ” or products containing synthetic
cannabinoid chemicals. The following facts were elicited at
trial and/or attested in Mr. Abuzuhrieh's Sentencing
Memorandum or the PSR. Mr. Abuzuhrieh was born in 1977 and
grew up in the Palestinian neighborhood of Beit Hanina, in
East Jerusalem, amidst violent conflict and limited
opportunities for Palestinian youth. [Docs. 146 at 3; 155 at
6]. In September 2001, in his mid-twenties, Mr. Abuzuhrieh
and his wife and young son moved to the United States for a
more stable life and to raise their family. Id. at
7. They moved to Albuquerque to join Mr. Abuzuhrieh's
brother, who owned a small grocery store. Id. Mr.
Abuzuhrieh worked at his brother's store while saving
money to open his own store. Id. From 2009-2011, Mr.
Abuzuhrieh ran his own grocery store in Albuquerque, but had
to close the store when it did not make enough money.
Id. at 8. Mr. Abuzuhrieh returned to work for his
brother until sometime in late 2012 or early 2013, when he
acquired the “Ace Smoke Shop & Grocery” in
Moriarty, New Mexico, later moving the store to
Albuquerque's Northeast Heights neighborhood.
Id. at 9-10.
addition to selling a variety of legal smoke shop items, Mr.
Abuzuhrieh also sold “spice” or
“potpourri” out of his shop. [Doc. 133 at 146].
The term “spice” refers to a product made by
applying a synthetic cannabinoid chemical to inert plant
material, giving users a similar psychedelic experience to
using marijuana without testing positive for marijuana in a
drug test. [Doc. 182 at 7-8, 21-22]. Spice is also
colloquially known and often labeled as
“potpourri.” Mr. Abuzuhrieh started selling spice
when he began his smoke shop business. Two of the substances
at issue in this case, XLR-11 and UR-144, were emergency
scheduled on May 16, 2013; the third substance at issue,
5F-PB-22, was emergency scheduled on February 10, 2014. All
three substances are Schedule I synthetic cannabinoid drugs.
Enforcement Agency (DEA) officials made two undercover
purchases at Mr. Abuzuhrieh's store. One was made on
August 14, 2014, from Mr. Abuzuhrieh's employee, Islam
Kandil, and one was made on August 18, 2014, from Mr.
Abuzuhrieh. [Doc. 132 at 31- 38; 45-54]. In both instances,
the undercover agent asked for spice by requesting
“1.5s, ” and both Mr. Kandil and Mr. Abuzuhrieh
during their respective sales reached into a drawer under the
cash register, hidden from customer view, to pull out the
packets of spice for sale. Id. The spice in both
purchases tested positive for XLR-11. [Doc. 75]. The
undercover and arresting agents testified at trial that there
were no spice products or advertisements for spice on display
in the store. [Docs. 132 at 30; 133 at 18].
September 22, 2014, Mr. Abuzuhrieh was arrested at his shop
and, after waiving his rights, admitted to selling spice.
[Doc. 133 at 32]. The shop was searched pursuant to a search
warrant, and around one kilogram of spice was seized from Mr.
Abuzuhrieh's shop. [Doc. 146 at 5]. Furthermore, a
property manager happened to arrive during Mr.
Abuzuhrieh's arrest, and he asked DEA agents whether he
could obtain a key that Mr. Abuzuhrieh had to another unit in
the building, Suite H, explaining that Mr. Abuzuhrieh had
been renting Suite H and that he possessed the only key to
the unit. [Doc. 132 at 136-42]. After Mr. Abuzuhrieh gave
agents permission to search Suite H, agents seized a
substantially larger supply of spice. [Doc. 154 at 19]. In
total, 62 kg of spice were seized. [Doc. 146 at 5]. Officers
did not find any pure synthetic cannabinoid chemical.
14, 2015, a six-count Superseding Indictment was filed,
charging Mr. Abuzuhrieh in Counts 1 (Conspiracy, in violation
of 21 U.S.C. §§ 846, 841(a)(1)), 3 (Distribution of
XLR-11, in violation of § 841(a)(1)), 4 (Possession With
Intent to Distribute XLR-11, in violation of §
841(a)(1)), 5 (Possession With Intent to Distribute UR-144,
in violation of § 841(a)(1)), and 6 (Possession With
Intent to Distribute 5F-PB-22, in violation of §
841(a)(1)). [Doc. 75].
trial, Mr. Abuzuhrieh testified in his defense that he was
not aware until after his arrest that the spice he had been
selling was illegal under federal law. [Doc. 133 at 188]. He
testified that at the time he was looking to start selling
spice, he had researched spice online and seen on multiple
websites that spice was “100% legal.” [Doc. 133
at 151-55]. Mr. Abuzuhrieh also testified that although two
members of his family had run-ins with law enforcement over
their sale of spice, Mr. Abuzuhrieh had not known that the
spice he was selling contained federally controlled
substances. [Doc. 133 at 206-09, 215-18]. Nevertheless, after
a four-day jury trial, Mr. Abuzuhrieh was convicted of all
submitted by the United States Probation Officer recommends a
base offense level of 34 and a total offense level of 40.
[Doc. 146 at 7]. The PSR arrives at the base offense level by
citing the drug quantity seized in this case as 62 kg.
Because the controlled substances in this case are not listed
on the Drug Quantity Table, U.S.S.G. § 2D1.1, the PSR
consults the Drug Equivalency Tables in the Guidelines and
equates the substances at issue to the same weight of
tetrahydrocannabinol (“THC”), which is the
psychoactive ingredient in marijuana. [Doc. 146 at 6-7
(citing U.S.S.G. § 2D1.1 cmt. n.8(D))]. According to the
Drug Equivalency Tables, one gram of THC is equivalent to 167
grams of marijuana. Multiplying the 62 kg at issue by 167,
the PSR states that the total drug quantity attributable to
Mr. Abuzuhrieh for sentencing purposes is 10, 354 kg of
marijuana, making his base offense level 34.
also calls for two-level enhancements for each of the
following, bringing the total offense level in the PSR to 40:
(1) maintaining a premises for the purpose of distributing a
controlled substance (citing U.S.S.G. § 2D1.1(b)(12)),
(2) being an organizer, leader, manager, or supervisor of
criminal activity (citing § 3B1.1(c)), and (3)
obstructing justice by committing perjury at trial (citing
§ 3C1.1). [Doc. 146 at 7]. Because Mr. Abuzuhrieh has no
prior convictions and is in criminal history category I, the
PSR calculates the advisory Guidelines range to be 292 to 365
the parties later agreed that the weight of spice attributed
to Mr. Abuzuhrieh for sentencing purposes wrongfully included
the weight of packaging materials and the weight of potpourri
estimated not to contain synthetic cannabinoids, reducing the
weight from 62 kg to 34.5 kg. [Doc. 154 at 16-17].
Accordingly, notwithstanding Mr. Abuzuhrieh's Objections,
the agreed-upon quantity attributable to Mr. Abuzuhrieh for
sentencing purposes is 5, 761.5 kg of marijuana, changing the
base offense level to 32. If each of the above enhancements
applies, the total offense level would be 38, resulting in a
revised advisory Guidelines range of 235 to 293 months.
Abuzuhrieh submitted six objections to the PSR, disputing all
of the above steps in the PSR's calculation of a total
offense level. First, Mr. Abuzuhrieh objects to equating the
substances at issue to THC, arguing that the 34.5 kg of spice
at issue should instead be equated to marijuana using a 1:1
ratio. [Doc. 154 at 2]. Second, Mr. Abuzuhrieh objects that
he should not be held responsible for the substances seized
in Suite H, which he argues belonged to his supplier.
Id. at 17-19. Third, Mr. Abuzuhrieh objects that the
enhancement for maintaining premises for the purpose of
distributing controlled substances should not apply because
his smoke shop made substantial legitimate sales.
Id. at 19-21. Fourth, Mr. Abuzuhrieh objects that
the enhancement for being a leader or supervisor of criminal
activity should not apply because Mr. Abuzuhrieh was merely
an “end-distributor, ” arguing instead that he
qualifies for a safety-valve downward departure under
U.S.S.G. § 5C1.2(a). Id. at 21-24. Fifth, Mr.
Abuzuhrieh objects that the enhancement for obstruction of
justice should not apply because he did not commit perjury by
testifying that he did not know spice was illegal.
Id. at 24-28. Finally, Mr. Abuzuhrieh objects to the
assertion in the PSR that a downward departure is not
warranted on account of his family ties and responsibilities
under U.S.S.G. § 5H1.6, arguing that he has special
family circumstances warranting a downward departure,
particularly as the sole breadwinner for his wife and six
young children, one of whom has developmental disabilities,
and as a non-citizen who faces possible deportation to the
occupied West Bank. Id. at 28-30.
Court held an evidentiary hearing on January 18, 2017, at
which Mr. Abuzuhrieh and the United States presented
competing expert testimony regarding Mr. Abuzuhrieh's
first objection: whether the substances at issue are properly
equated to THC and whether the 1:167 marijuana equivalency
ratio would be appropriately applied in this case. [Doc.
182]. Dr. Jordan Trecki, a DEA-employed pharmacologist,
testified for the United States in favor of equating the
entire weight of spice at issue to THC, and in favor of
applying the 1:167 marijuana equivalency ratio for THC. Dr.
Nicholas Cozzi, a professor and researcher at the University
of Wisconsin Madison School of Medicine and Public Health,
testified against equating the substances seized to THC and
against application of the 1:167 ratio to the entire weight
of potpourri at issue. Mr. Abuzuhrieh's wife, Hala
Zahrieh, also testified briefly in support of Mr.
Abuzuhrieh's arguments for a downward departure or
REGARDING THE SENTENCING GUIDELINES
United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court eliminated the mandatory provisions from the
Sentencing Reform Act, rendering the U.S. Sentencing
Guidelines advisory. Under 18 U.S.C. § 3553(a), which
remains intact, Congress directed sentencing courts to impose
a sentence “sufficient, but not greater than
necessary” to comply with four sentencing purposes:
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner . . . .
18 U.S.C. § 3553(a)(2)(A)-(D). To achieve these
purposes, § 3553(a) asks sentencing courts to consider
(i) the Guidelines, (ii) the nature of the offense and the
defendant's character, (iii) the available sentences,
(iv) a policy favoring uniformity in sentences for defendants
who commit similar crimes, and (v) the need to provide
restitution to victims. See 18 U.S.C. §
Tenth Circuit, although the sentencing court must balance the
§ 3553(a) factors without presuming in favor of the
Guidelines range, a sentence within the Guidelines range is
presumptively reasonable at the appellate level. United
States v. Terrell, 445 F.3d 1261, 1264 (10th Cir. 2006).
See also Rita v. United States, 551 U.S. 338, 351
(2007); Gall v. United States, 552 U.S. 38,
46-47 (2007). This does not mean, however, that sentencing
courts do not have discretion to issue a sentence below the
Guidelines range based on policy concerns as applied towards
a particular defendant. Importantly, sentencing courts may
disagree with disparities in how certain drugs are treated
under the Guidelines. In Kimbrough v. U.S., 552 U.S.
85, 91 (2007), the Supreme Court considered whether “a
sentence . . . outside the guidelines range is per se
unreasonable when it is based on a disagreement with the
sentencing disparity for crack and powder cocaine
offenses.” The Court held that a sentencing judge
“may consider the disparity between the Guidelines'
treatment of crack and powder cocaine offenses” as part
of the Court's analysis of the § 3553(a) factors, in
order to render a sentence that is no “greater than
necessary” in meeting sentencing objectives.
considering the § 3553(a) factors, a sentencing court
must determine the imprisonment range under the Guidelines by
finding the base offense level and then adding any applicable
enhancements to arrive at a total offense level. District
courts must start by calculating the proper Guidelines range
before considering whether to vary a sentence outside of the
advisory Guidelines range. See, e.g., U.S. v.
Pacheco-Soto, 386 F.Supp.2d 1198, 1204 (D.N.M. 2005)
(Vázquez, J.) (“Although the Guidelines are no
longer mandatory, courts must continue to consult them when
making sentencing decisions. Thus, the Court will . .
.determine a Guidelines range by ruling on objections to the
PSR and resolving factual disputes to the extent they
exist.”). Under U.S.S.G. § 1B1.3(a), the base
offense level is determined based on the following:
(1)(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused
by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a
criminal plan, scheme, endeavor, or enterprise undertaken by
the defendant in concert with others, whether or not charged
as a conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity, that occurred during the commission of the
offense of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or responsibility
for that offense;
(2) solely with respect to offenses of a character for which
§ 3D1.2(d) would require grouping of multiple counts,
all acts and omissions described in subdivisions (1)(A) and
(1)(B) above that were part of the same course of conduct or
common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts and omissions
specified in subsections (a)(1) and (a)(2) above, and all
harm that was the object of such acts and omissions; and
(4) any other information specified in the applicable
U.S.S.G. § 1B1.3(a)(1)-(4). In assessing relevant
conduct for sentencing purposes, evidence need not be
admissible and may be considered if it has sufficient indicia
of reliability. § 6A1.3. Furthermore, “the Due
Process Clause does not require sentencing facts in the
ordinary case to be proved by more than a preponderance
standard.” United States v. Washington, 11
F.3d 1510, 1516 (10th Cir. 1993) (citing McMillan v.
Pennsylvania, 477 U.S. 79, 84 (1986)).
applying enhancements under the Guidelines, the Sixth
Amendment requires that any facts increasing the penalty for
a crime “beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi v. New Jersey, 530 U.S. 460,
490 (2000). However, a defendant may only assert an error
under this rule if the facts at issue increased the sentence
beyond the statutory maximum. United States v.
O'Flanagan, 339 F.3d 1229, 1232 (10th Cir. 2003).
Otherwise, again, “sentencing facts in the ordinary
case need only be proven by a preponderance.”
United States v. Olsen, 519 F.3d 1096, 1105 (10th
Cir. 2008) (quoted authority omitted).
Mr. Abuzuhrieh's first objection, the Court finds that
although it shares many of Mr. Abuzuhrieh's concerns
about the appropriateness of applying the 1:167 ratio in this
case, having found that the substances at issue are most
closely similar to THC, the Court must overrule the ...