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United States v. Abdeljawad

United States District Court, D. New Mexico

June 18, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
FIDAL ABDELJAWAD, Defendant.

          MEMORANDUM OPINION AND ORDER OVERRULING IN PART AND SUSTAINING IN PART DEFENDANT'S OBJECTIONS TO THE PRESENTENCE REPORT AND COURT'S DETERMINATION OF DEFENDANT'S ADVISORY SENTENCING GUIDELINE RANGE

         THIS MATTER comes before the Court following a sentencing hearing on December 12, 2017, regarding Defendant Fidal Abdeljawad's Sentencing Memorandum and Objections to the Presentence Report, filed November 2, 2017 (Doc. 131).[1] The Government filed a supplemental brief on January 2, 2018, and supplemented the record on January 10, 2018. Having reviewed the pleadings, and heard the arguments of counsel, the Court SUSTAINS in part and OVERRULES in part Defendant's objections to the Presentence Report (PSR).

         BACKGROUND

         The Superseding Indictment (Doc. 29) charged Defendant as follows:

Count 1 - conspiracy to possess with intent to distribute synthetic cannabinoids, in violation of 21 USC § 846;
Count 2 - On May 7, 2014, possession with intent to distribute mixture containing detectable amount of UR-144, XLR11, 5F-PB-22 and AB- FUBINACA, each Schedule I controlled substances, in violation of 21 USC § 841(a)(1) and (b)(1)(C).
Count 3 - On May 8, 2014, Defendant (and Ashley Watson) intentionally possessed with intent to distribute a mixture containing a detectable amount of UR-144, XLR11, 5F-PB-22 and AM-2201, each a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Count 4 - On or about February 19, 2015, the defendants unlawfully, knowingly and intentionally attempted to commit an offense defined in 21 U.S.C. 841(a)(1), that is, to possess with intent to distribute a mixture and substance containing a detectable amount of XLR11, a Scheduled I controlled substance.

         A jury found Defendant guilty on all four counts on May 5, 2017. Defendant was thus found guilty of possessing or attempting to possess with intent to distribute five Schedule I controlled substances, XLR11, UR-144, 5F-PB-22, AM-2201, and AB-FUNICA. All are synthetic cannabinoids, sprayed on plant material and designed to appear like Marihuana.

         On July 13, 2017, the United States Probation Office disclosed the PSR, indicating an advisory sentencing guideline range of 188 to 235 months based on a base offense level of 32. The PSR added two points for maintaining a premises for storing and distributing a controlled substance pursuant to U.S.S.G. § 2D1.1(b)(12) and two additional points for leading or supervising a criminal activity pursuant to U.S.S.G. § 3B1.1(c)[2] for a total offense level of 36 and criminal history category of I.

         The PSR indicated that the following grams of synthetic cannabinoids are attributable to Defendant:

Description:

Quantity:

Search of Sean's Smoke Shop on May 7, 2014;

379.8 grams

Search of Abdeljawad's van on May 7, 2014;

2.9 grams

Search of Cube Smart Storage Unit on May 8, 2014;

1, 567.6 grams

Estimated synthetic cannabinoid shipments received from Ramzi Kahala on behalf of Abdeljawad from February to May 2014;

42, 000 grams

Estimated synthetic cannabinoid shipments from Imad Al Qattawi to Abdeljawad on October 15, 2014;

5, 185 grams

Intercepted communication on December 17, 2014; however, insufficient information is available to reliability estimate the drug quantity;

Unknown

Estimated on December 30, 2014, shipment from Saleem Salam;

546 grams

UPS parcel intercepted on February 19, 2015:

203.3 grams

Aggregated Total:

49, 884.6 grams

U.S. Currency Forfeited $10, 904.81 (Smoke shop). DEA typically purchased each gram for approximately $5 per gram.

2, 180.962 grams (cash conversion)

Total:

52, 065.56 grams

Synthetic Tetrahydrocannabinol

Total Marijuana Equivalency:

1 gm Synthetic Tetrahydrocannabinol

167 gm of marihuana

8, 695 kilograms marihuana

PSR, at ¶ 35.

         On January 19, 2018, the Government filed a supplement asserting that additional shipping records were been obtained from Fed Ex (Doc. 151). The Government asserted that shipping records indicate that seven additional unseized shipments were sent to Ramzi Kahala, for Defendant, raising the total amount of synthetic tetrahydrocannabinol to 104, 883.56 grams. Moreover, the supplement included the shipment seized in May 2014 (7, 000 grams), which was apparently previously omitted from the PSR. Probation supplemented the PSR to include this updated total.

         The Court directed Defendant to respond to the supplement to the PSR (Doc. 152). Defendant responded on May 14, 2018, and did not object to the supplementation, but argued for a downward variance.

         DISCUSSION

         I. Conversion Ratio for Synthetic Cannabinoids.

         Defendant objects to the use of the THC to Marihuana equivalency ratio of 1:167. First, Defendant argues that the specific synthetic cannabinoid chemicals at issue are not substantially similar to THC, and therefore the Court should apply the 1:1 marihuana equivalency ratio instead. Second, Defendant challenges the validity of the 1:167 equivalency ratio used in the Guidelines.

         A. THC to Marijuana Ratio of 1:167 Applies Because Synthetic Cannabinoids at Issue are Substantially Similar to THC.

         Where, as here, a controlled substance is not specifically referenced in the Guidelines, the Court must calculate a defendant's base offense level by using the drug-equivalency ratio for the most closely related substance found in the Guidelines. U.S.S.G. 2D.1. cmt. n. 6. In determining the most closely related controlled substance, a court must consider:

(A) Whether the controlled substance not referenced in this guideline has a chemical structure that is substantially similar to a controlled substance referenced in this guideline.
(B) Whether the controlled substance not referenced in this guideline has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant, depressant, hallucinogenic effect on the central nervous system of a controlled substance reference din this guideline.
(C) Whether a less or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in this guideline.

U.S.S.G. 2D1.1 cmt n. 6.

         This similar-substance question is a factual determination. See United States v. Ramos, 814 F.3d 910, 918 (8th Cir. 2016). It appears that Defendant only challenges whether THC is the most closely related substance to UR-144, but the Court analyzes all the synthetic cannabinoids at issue below. The Government produced reliable evidence, in the form of expert reports and ...


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