United States District Court, D. New Mexico
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
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). 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).
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
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
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.
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. §
a total offense level of 36 and criminal history category of
indicated that the following grams of synthetic cannabinoids
are attributable to Defendant:
Search of Sean's Smoke Shop on May 7, 2014;
Search of Abdeljawad's van on May 7, 2014;
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;
Estimated on December 30, 2014, shipment from Saleem
UPS parcel intercepted on February 19, 2015:
49, 884.6 grams
U.S. Currency Forfeited $10, 904.81 (Smoke shop). DEA
typically purchased each gram for approximately $5
2, 180.962 grams (cash conversion)
52, 065.56 grams
Total Marijuana Equivalency:
1 gm Synthetic Tetrahydrocannabinol
167 gm of marihuana
8, 695 kilograms marihuana
PSR, at ¶ 35.
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.
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.
Conversion Ratio for Synthetic
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.
THC to Marijuana Ratio of 1:167 Applies Because Synthetic
Cannabinoids at Issue are
Substantially Similar to THC.
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
(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
U.S.S.G. 2D1.1 cmt n. 6.
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 ...