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United States v. Abuzuhrieh

United States District Court, D. New Mexico

April 18, 2017




         THIS 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.


         Mr. 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.

         In 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.

         Drug 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].

         On 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.

         On July 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].

         At 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 counts.

         The PSR 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.

         The PSR 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 months.

         However, 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.

         Mr. 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.

         This 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 variance.


         In 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 offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(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. § 3553(a)(1), (3)-(7).

         In the 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. Id.

         Before 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 guideline.

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)).

         When 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).[1]


         As to 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 ...

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