United States v. Peter Sepling ( 2019 )


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  •                                                                       PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 17-3274
    _____________
    UNITED STATES OF AMERICA
    v.
    PETER SEPLING,
    Appellant
    ________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (No. 3-11-cr-00195-001)
    District Judge: Hon. A. Richard Caputo
    ________________
    Argued on May 23, 2019
    Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges
    (Opinion filed November 29, 2019)
    Sean E. Andrussier
    Abbey McNaughton                [ARGUED]
    Nicolas Rodriguez
    Kelsey Smith
    Duke University School of Law
    210 Science Drive
    Box 90360
    Durham, NC 27708
    Counsel for Appellant
    
    The Court wishes to express its gratitude to the Duke University School of Law
    Appellate Advocacy Clinic for agreeing to represent Mr. Sepling pro bono. The Court
    Stephen R. Cerutti, II
    Office of United States Attorney
    228 Walnut Street, P.O. Box 11754
    220 Federal Building and Courthouse
    Harrisburg, PA 17108
    Counsel for Appellee
    William S. Houser           [ARGUED]
    Francis P. Sempa
    Office of United States Attorney
    235 North Washington Avenue
    P.O. Box 309, Suite 311
    Scranton, PA 18503
    Counsel for Appellee
    ________________
    OPINION OF THE COURT
    ________________
    McKEE, Circuit Judge
    Peter Sepling moved under 
    28 U.S.C. § 2255
     for the District Court to vacate the
    judgment of sentence imposed following his guilty plea based upon his attorney’s alleged
    ineffectiveness during his sentencing in 2014. Sepling asks us to vacate the order of the
    District Court denying this motion. We agree that he was prejudiced by his counsel’s
    ineffectiveness and we will therefore vacate the District Court’s denial of Sepling’s §
    2255 motion and remand for further proceedings consistent with this opinion.
    expresses particular appreciation to Sean E. Andrussier, Esq., Director of the Appellate
    Advocacy Clinic, and the clinical law students: Abbey McNaughton (who presented an
    exceptional oral argument), Nicolas Rodriguez, and Kelsey Smith. Together, they
    submitted an excellent brief and provided exemplary representation to Mr. Sepling.
    2
    I.      Background
    Sentencing Counsel represented Peter Sepling and negotiated a plea agreement
    with the Government. Pursuant to that Rule 11(c)(1)(C) agreement, Sepling pled guilty to
    importing gamma butyrolactone (GBL), a schedule I controlled substance analogue, in
    violation of Title 21, U.S.C. § 952.1 The agreement provided in part that Sepling’s
    sentence would be calculated without consideration of, or reference to, the career
    offender section of the Sentencing Guidelines.2 The plea agreement also stipulated that
    Sepling would “refrain from any further violations of state, local or federal law while
    awaiting . . . sentencing under this agreement” and that a failure to abide by the
    stipulations of the agreement could cause the Government to withdraw it.3 After the court
    accepted Sepling’s plea, he was released on bond pending sentencing.
    Despite the provisions of the plea agreement, Sepling became involved in a
    conspiracy to import methylone, another Schedule I controlled substance, shortly after he
    was released on bond. Law enforcement officials arrested him and charged him with
    conspiracy to import methylone in violation of 
    21 U.S.C. § 963
    . A search incident to that
    arrest uncovered 3 kilograms of the substance and a later investigation revealed that the
    conspiracy involved approximately ten kilograms of the drug. An Assistant Public
    Defender was appointed to represent Sepling on the new charges. She negotiated an
    unwritten agreement with the Government in which the Government agreed to withdraw
    1
    JA38, 45.
    2
    JA53.
    3
    JA62-63.
    3
    the conspiracy charge in exchange for Sepling accepting responsibility for conspiring to
    import methylone. In addition, the Government agreed that, rather than prosecuting
    Sepling on the new charges arising from his involvement with methylone, Sepling’s
    involvement would be factored into the sentence he would receive for his prior GBL
    conviction as relevant conduct. Since Sepling did not face a separate prosecution
    involving methylone, the Assistant Public Defender ceased representing Sepling once the
    Government agreed not to prosecute.
    Pursuant to the initial plea agreement arising from his involvement with GBL,
    Sepling’s unmodified Guideline range was 27 to 33 months incarceration. His criminal
    history category did not change after factoring in his subsequent arrest for methylone.
    However, the relevant conduct involving his subsequent arrest for methylone
    dramatically increased his base offense level.
    “The [Sentencing] Commission has used the sentences provided in, and
    equivalences derived from, . . . (
    21 U.S.C. § 841
    (b)(1)), as the primary basis for the
    guideline sentences.”4 But that section only offers guidance for sentences involving the
    most common controlled substances. The Guidelines use the drug conversion table in
    § 2D1.1 to prescribe sentences for controlled substances not listed in 
    21 U.S.C. § 841
    (b)(1)).5 For controlled substances less common than those in the 2D1.1 conversion
    table, the sentencing court must select an analogue from the drug conversion table that is
    4
    U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.8(A) (U.S. Sentencing Comm’n
    2013) [hereinafter U.S.S.G].
    5
    Id. at cmt. n.8(D).
    4
    most analogous to the substance defendant possessed and proceed as if the defendant had
    actually possessed the analogous substance listed in the conversion table. Sepling’s
    relevant conduct involved methylone, which is not listed in the Guideline table. The
    Probation Officer preparing Sepling’s Pre-Sentence Report (PSR) therefore analogized
    methylone to Methylenedioxymethamphetamine or “MDMA.” MDMA is a more
    common street drug known as “ecstasy,” and the Guidelines specify a sentencing range
    for MDMA by establishing a ratio to convert it to a comparable amount of marijuana.6
    The sentencing table conversion for MDMA equates a unit of that drug to 500
    units of marijuana. Consequently, the District Court started its sentencing determination
    using this 500:1 ratio.7 Sepling believed that he was only responsible for 3 kilograms of
    methylone. However, the PSR held him responsible for ten kilograms based on
    information received from the law enforcement officers involved in his subsequent arrest.
    Using MDMA as the methylone analogue, the PSR suggested that Sepling’s relevant
    conduct for his involvement with methylone was equivalent to conspiring to distribute
    5,000 kilograms (five and a half U.S. tons) of marijuana.8
    6
    Id. at cmt. n.8(A)(i).
    7
    Id. at cmt. n.8(D).
    8
    This is about the same weight as a large SUV. See How Much Does a Large SUV
    Weigh,
    https://www.google.com/search?q=how+much+does+a+large+suv+weigh&oq=how+mu
    ch+does+a+large+suv+weigh&aqs=chrome..69i57.7776j1j7&sourceid=chrome&ie=UTF
    -8 (last viewed on October 10, 2019).
    5
    Under the Guidelines, offenses involving at least 3,000 but less than 10,000
    kilograms of marijuana have a base level of 34.9 After receiving a two-level variance
    because of an anticipated amendment to the Sentencing Guidelines (Amendment 782,
    enacted July 18, 2014), Sepling’s base level was reduced to 32. The resulting sentencing
    range was a period of incarceration between 188 months and 235 months. Sentencing
    Counsel did not object to that sentencing calculation, nor did he file a sentencing
    memorandum.10
    During the ensuing sentencing hearing, Sentencing Counsel did object to the ten-
    kilogram weight assessed against Sepling, but did not take issue with the 500:1
    conversion ratio that would drive the sentence pursuant to the 500:1 ratio of ecstasy (the
    substance determined to be equivalent to the methylone for purposes of “relevant
    conduct”) to marijuana.
    During that hearing, Sentencing Counsel informed the court that he had “never
    heard [of methylone] . . . until [Sepling] got rearrested.”11 Sentencing Counsel then
    explained that he had attempted to learn about the drug from the Government. Counsel
    further explained that the Government “tried to educate me… as Mr. Sepling tried to
    educate me. My understanding of the drug, which is very little, is that drug is –he
    [Sepling] will explain [to] the Court –it’s like a watered down ecstasy.”12 The
    Government also knew next to nothing about methylone.
    9
    U.S.S.G. § 2D1.1(c)(3).
    10
    JA33.
    11
    JA76.
    12
    JA76-77.
    6
    Rather than doing any research into the pharmacological effect of methylone in
    order to competently represent his client and inform the District Court’s application of
    the Guidelines table, Sentencing Counsel relied upon his client to explain the effects of
    methylone. Sentencing Counsel thus “decided to outsource to Sepling any discussion of
    methylone at the hearing.”13 At Sentencing Counsel’s request, Sepling offered the
    following testimony in an attempt to provide some indicia of an appropriate comparison
    of methylone to more common substances in the Guidelines equivalency table: “It’s like
    ecstasy. If ecstasy is a ten…[t]his stuff is six and lasts about an hour and a half.”14 Then,
    in a remarkable exchange that is central to this appeal, Sentencing Counsel, the
    Government, and the District Court all confessed that they did not possess any
    substantive knowledge of methylone:
    The Court: … [A]lthough he’s an addict and although it’s a controlled
    substance, the Methylone is driving [the Sentencing Guidelines
    calculation.] And that’s a serious—that’s a serious business because I
    know—I read about ecstasy. I don’t know anything about Methylone, but I
    will accept the fact that it’s somewhat less of an impact than ecstasy. I
    assume that’s correct.
    Government: I can’t answer that, Judge.
    The Court: You can’t answer that, no?
    Sentencing Counsel: I don’t know either, Judge.
    The Court: Neither do I. But in any event, it’s a controlled substance. It’s
    mind altering. It affects people’s behavior. It’s not a good thing. So I will
    consider that.15
    Of course, all controlled substances are regulated because they are not “a good thing,” at
    least insofar as they are used recreationally rather than medicinally pursuant to a doctor’s
    13
    Appellant Brief 17.
    14
    JA80.
    15
    JA92.
    7
    supervision. They are also all potentially “mind altering” and “affect[] people’s
    behavior.” However, Sentencing Counsel made no attempt to provide any information
    specific to methylone that would have reduced the ratio of 500:1 which drove his client’s
    sentence even though the court appropriately confessed to knowing nothing about
    methylone—other than the fact that it was listed as a controlled substance.
    The District Court sentenced Sepling to a period of incarceration of 102 months.
    In sentencing him, the court explained, “[y]ou’ve committed a serious crime here, and
    it’s—in particular the methylone and that you put people in harm’s way, and this is why
    I’m sentencing you.”16
    Sepling thereafter filed a pro se motion under 
    28 U.S.C. § 2255
     to set aside or
    correct his sentence based upon Sentencing Counsel’s alleged deficient representation,
    which the District Court denied.17
    II.    The Sixth Amendment
    In Strickland v. Washington, the Supreme Court elaborated upon “the
    constitutional requirement of effective assistance” of counsel.18 The Court explained that
    “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s
    conduct so undermined the proper function of the adversarial process that the trial cannot
    be relied on as having produced a just result.”19 Two factors are crucial to determining if
    defense counsel’s assistance falls short of the constitutional guarantee. “First, the
    16
    JA94.
    17
    JA108-138.
    18
    Strickland v. Washington, 
    466 U.S. 668
    , 686 (1984).
    19
    
    Id.
    8
    defendant must show that counsel’s performance was deficient…. Second, the defendant
    must show that the deficient performance prejudiced the defense.” 20
    In denying Sepling’s § 2255 petition, the District Court found that Sentencing
    Counsel’s performance was not deficient. The District Court explained: “Although
    sentencing counsel acknowledged that he knew little about methylone, he appropriately
    likened the drug to a ‘watered down ecstasy.’”21 The District Court concluded that
    because Sentencing Counsel’s statements regarding methylone were consistent with
    Sepling’s, Sepling could not now demonstrate any deficient performance. Similarly, the
    District Court found that Sepling also could not establish prejudice under Strickland’s
    second prong because the court, in sentencing Sepling, determined that the Guidelines
    were not fair and granted him a substantial downward variance.22 The District Court
    denied the motion without a hearing and then denied Sepling’s request for a certificate of
    appealability.
    III.   Arguments on Appeal23
    In this appeal, Sepling again asserts that his Sentencing Counsel provided
    ineffective assistance by failing to investigate and educate himself and the court about
    20
    Id. at 687.
    21
    JA13.
    22
    JA14.
    23
    The District Court exercised jurisdiction over Sepling’s petition for post-conviction
    relief under 
    28 U.S.C. § 2255
    . We exercise jurisdiction over this appeal under 
    28 U.S.C. § 2253
    (a) and 
    28 U.S.C. § 1291
    . Our review of the District Court’s assessment of
    whether counsel’s “performance was deficient” and whether “deficient performance
    prejudiced the defense” is plenary. United States v. Jenkins, 
    333 F.3d 151
    , 153 (3d Cir.
    2003).
    9
    methylone, the substance driving his sentence, or MDMA, its guideline analogue. Sepling
    adds that by advising him that he had no appealable issues, Sentencing Counsel was
    again ineffective. The Government argues that Sepling’s sentence was not based on the
    Guidelines, but instead on the sentencing factors as articulated in 
    18 U.S.C. § 3553
    (a)
    and, therefore, his claims of ineffective assistance of counsel are frivolous. The
    Government also argues that Sentencing Counsel achieved a downward variance from the
    Guidelines’ suggested sentence and therefore could not have been constitutionally
    derelict.
    IV. Discussion
    It is now firmly established that a defendant’s constitutional right to effective
    representation extends to sentencing hearings.24 The fact that counsel’s dereliction may
    only have resulted in a comparatively “small” increase in the amount of time a defendant
    is incarcerated neither negates nor lessens the Sixth Amendment’s guarantee. “Authority
    does not suggest that a minimal amount of additional time in prison cannot constitute
    prejudice.”25 Moreover, since Strickland, the Supreme Court has explicitly stated that
    “any amount of actual jail time has Sixth Amendment significance.”26 Indeed, an interval
    that may appear to be insignificant to those of us in air-conditioned courtrooms, who
    return to the warmth and comfort of our homes each night, may be quite oppressive and
    punitive to someone confined in the sterile isolation of a prison cell situated behind
    24
    Glover v. United States, 
    531 U.S. 198
     (2001).
    25
    
    Id. at 203
    .
    26
    
    Id.
    10
    concrete walls and razor wire. Accordingly, if Sepling can show that Sentencing Counsel
    was constitutionally ineffective, he can then satisfy the prejudice prong of Strickland if
    there is “a reasonable probability that, but for counsel’s unprofessional errors, the result
    of the [sentencing] would have been different.”27
    A. Sentencing Counsel’s Performance
    We have no problem concluding that Sentencing Counsel’s representation here fell
    far “below an objective standard of reasonableness.” 28 As noted above, the relevant
    conduct involving methylone, incorporated into Sepling’s sentencing for his involvement
    with GBL, was the driving factor in the calculation of Sepling’s base level under the
    Sentencing Guidelines and the District Court’s sentence. During the sentencing hearing,
    Sentencing Counsel challenged only the weight of methylone used to calculate Sepling’s
    Guideline sentence.29 Although Sentencing Counsel argued that Sepling’s relevant
    conduct should have been based on the 3 kilograms he was apprehended with, without
    consideration of the additional 7 kilograms involved in the methylone conspiracy, he
    made absolutely no effort to challenge the court’s reliance on the 500:1 ratio derived
    from comparing methylone to MDMA. Sepling argues that, at a minimum, Sentencing
    Counsel was required to undertake a sufficient investigation of methylone to avoid a
    sentence derived from the selection of a purportedly false equivalent in the Guideline
    27
    Strickland, 
    466 U.S. at 694
    .
    28
    
    Id. at 688
    .
    29
    JA71-72 (arguing that the ten-kilogram weight came from Sepling’s coconspirators and
    that therefore the Government must produce those coconspirators to establish that
    Sepling possessed ten kilograms of methylone).
    11
    tables that would unfairly and inaccurately inflate Sepling’s sentence. We agree.
    Sentencing Counsel’s failure to develop even a rudimentary understanding of methylone
    and how it compares to MDMA precluded him from assessing whether MDMA was an
    appropriate analogue, making a compelling, fact-based argument about the seriousness of
    methylone, or arguing in favor of a smaller ratio than 500:1 as a starting point for crafting
    an appropriate sentence.
    “[A] district court should begin all sentencing proceedings by correctly
    calculating the applicable Guidelines range,” 30 but it is a responsibility of counsel to
    ensure that the presentencing report’s calculations are correct and that the court has the
    information needed to conduct a fair sentencing hearing. While the Supreme Court has
    consistently noted the importance of pre-sentencing hearing investigations,31 this does not
    absolve sentencing counsel of the duty to make an independent investigation into the
    basis of a client’s sentence. In Strickland, the Supreme Court advised courts to draw from
    “[p]revailing norms of practice as reflected in American Bar Association standards and
    the like, e.g., ABA Standards for Criminal Justice 4-1 to 4-8.6,” in determining what is
    required of counsel.32 Not surprisingly, the ABA Standards at the time of Sepling’s
    sentencing advised that counsel “should present to the court any ground which will assist
    in reaching a proper disposition favorable to the accused” and “be prepared to
    30
    Gall v. United States, 
    552 U.S. 38
    , 49 (2007).
    31
    See, e.g., Wiggins v. Smith, 
    539 U.S. 510
     (2003); see also Williams v. Taylor, 
    529 U.S. 362
     (2000).
    32
    Strickland, 
    466 U.S. at 688
    .
    12
    supplement or challenge [a presentence report] if necessary.”33Although we certainly
    respect and appreciate the role of the Probation Office in preparing PSRs, the Probation
    Officer is an officer of the court and counsel cannot delegate the solemn responsibility of
    representing a client to a representative of the Probation Office. Because methylone is not
    amongst the substances listed in 2D1.1, Sentencing Counsel should have been
    sufficiently informed about methylone to evaluate the Probation Officer’s selection of
    MDMA as an analogue for sentencing purposes. Methylone may be considered an
    analogue of MDMA if it has “a stimulant, depressant, or hallucinogenic effect on the
    central nervous system that is substantially similar to the stimulant, depressant, or
    hallucinogenic effect on the central nervous system.”34 “In determining the appropriate
    sentence, the court also may consider whether the same quantity of analogue produces a
    greater effect on the central nervous system than the controlled substance for which it is
    an analogue.”35
    We realize, of course, that “[a] fair assessment of attorney performance requires
    that every effort be made to eliminate the distorting effects of hindsight, to reconstruct
    the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
    counsel’s perspective at the time.”36 Nevertheless, it is clear from the transcript of the
    33
    ABA Standards for Criminal Justice Prosecution Function and Defense Function 4-
    8.1(b) (3d ed. 1993), available at
    https://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/pr
    osecution_defense_function.pdf.
    34
    See U.S.S.G. § 2D1.1 cmt. n. 6 (2013) (adopting the definition of “controlled substance
    analogue” from 
    21 U.S.C. § 802
    (32)(A)(ii)).
    35
    
    Id.
    36
    Strickland, 
    466 U.S. at 689
    .
    13
    sentencing proceeding that Sentencing Counsel’s stewardship “was not colorably based
    on tactical considerations but merely upon a lack of diligence.”37 Sentencing Counsel
    quite candidly informed the court that he knew nothing about methylone. Moreover, it is
    clear from the sentencing proceeding that he made absolutely no attempt to sufficiently
    inform himself about whether methylone “has a stimulant, depressant, or hallucinogenic
    effect on the central nervous system that is substantially similar to the stimulant,
    depressant, or hallucinogenic effect on the central nervous system of [MDMA],” or
    “[w]hether a lesser 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 [MDMA].”38 Unsurprisingly, Sentencing Counsel was ill-equipped to challenge the
    500:1 ratio that resulted from determining that MDMA or ecstasy was analogous to
    methylone.
    Congress enacted the Ecstasy Anti-Proliferation Act in 2000 in response to
    demands that it address the rapidly escalating abuse of ecstasy.39 Prior to enactment of
    that Act, the Guidelines had a ratio of 35:1 for ecstasy offenses.40 The Sentencing
    Commission responded to the demands by increasing the MDMA ratio from 35:1 to
    500:1.41 A reasonable inquiry into the then-current research on the issue would have
    37
    United States v. Gray, 
    878 F.2d 702
    , 712 (3d Cir. 1989).
    38
    U.S.S.G. § 2D1.1 cmt. n. 6.
    39
    Ecstasy Anti-Proliferation Act of 2000, Pub. L. No. 106-310, § 3662, 
    114 Stat. 1101
    ,
    1241 (2000).
    40
    U.S. Sentencing Comm’n, Report to Congress: MDMA Drug Offenses, Explanation of
    Recent Guideline Enhancement 6 (May 2001).
    41
    
    Id.
    14
    allowed Sentencing Counsel to argue that the response was exaggerated.42 During the
    public comment period on the proposed ratio, the Federation of American Scientists
    issued a statement claiming there is “no justification, either pharmacologically or in
    policy terms” for the suggested increase.43 The MDMA ratio has also drawn intense
    criticism since its enactment. Shortly after it went into effect, a scientist upon whose
    research the Commission relied heavily to support the 500:1 ratio44 was forced to retract
    multiple studies, including a study allegedly proving that a single night of taking MDMA
    may cause brain damage. 45 The scientist had mistakenly used methamphetamine instead
    of ecstasy in his research, claiming the vials were mislabeled.46 Sentencing Counsel also
    had access to a host of later scientific and academic research supporting an argument that
    42
    We offer the following only to show the arguments and resources that were reasonably
    available to Sentencing Counsel at the time of Sepling’s sentencing. While Sentencing
    Counsel was not constitutionally required to investigate each one of these resources or to
    make each one of these arguments, his failure to make any of these arguments or failure
    to make any investigation to educate himself about the substance at issue so undermines
    our confidence in the sentence that was imposed as to establish prejudice under
    Strickland and render his performance constitutionally deficient. Although these
    materials are not contained in the record, they were available when Sepling was
    sentenced and we offer them only to illustrate the kind of research that Sentencing
    Counsel could have brought to the District Court’s attention.
    43
    Amanda Kay, Comment, The Agony of Ecstasy: Reconsidering the Punitive Approach
    to United States Drug Policy, 29 Fordham Urban L.J. 2133, 2172 (2002).
    44
    U.S. Sentencing Comm’n, supra note 40 at 8-9, fn. 15-17 (acknowledging that Dr.
    Ricaurte’s work has been severely criticized by other medical researchers, but explaining
    that publication in peer-reviewed journals “lends credence to [his] work.”).
    45
    Donald G. McNeil Jr., Research on Ecstasy Is Clouded by Errors, N.Y. Times (Dec. 2,
    2003), https://www.nytimes.com/2003/12/02/science/research-on-ecstasy-is-clouded-by-
    errors.html.
    46
    Id. The retraction drew public criticism from other prominent scientists who accused
    Dr. Ricaurte of “playing games with his data” to show that recreational drugs are
    dangerous and win federal grants, and “running a cottage industry showing that
    everything under the sun is neurotoxic.” Id.
    15
    MDMA is not as harmful as the Commission proposed when selecting the ratio in 2001.47
    Further supporting an argument in favor of a downward variance, publicly available data
    from the Drug Enforcement Agency showed that, by 2013, “survey, seizure, and
    treatment data suggest availability and abuse of [MDMA] may have peaked.”48 Finally,
    then-available research shows that MDMA was responsible for significantly fewer
    emergency room visits than marijuana or cocaine.49 The available evidence would have
    47
    Id. (explaining that Dr. Stephen Kish from the Center for Addiction and Mental Health
    in Toronto, after reviewing all available research on MDMA, concluded that there was no
    evidence that ecstasy caused Parkinson’s-like tremors or any lasting brain damage). See
    also John H. Halpern et al., Residual Neurocognitive Features of Long-Term Ecstasy
    Users with Minimal Exposure to Other Drugs, 106 Addiction 777, 777, 783-84 (2011)
    (finding “little evidence of decreased cognitive performance” in ecstasy users compared
    to non-users and cautioning against “ascribing neuropsychological deficits to ecstasy
    exposure.”); Stephen J. Kish et al., Decreased Cerebral Cortical Serotonin Transporter
    Binding in Ecstasy Users: A Positron Emission Tomography/[ (11)C] DASB and
    Structural Brain Imaging Study, 133 Brain: A J. of Neurology 1779, 1791 (2010) (noting
    that this study “did not find a global, massive reduction of brain [serotonin transporter]
    binding” as claimed by previous studies on the neurotoxicity of MDMA); Alyssa C.
    Hennig, Comment, An Examination of Federal Sentencing Guidelines' Treatment of
    MDMA ("Ecstasy"), 1 Belmont L. Rev. 267, 287-301 (2014) (reviewing scientific studies
    and social science data on MDMA and concluding that Commission exaggerated the
    danger of MDMA by relying on unsound science, ignoring available studies showing
    MDMA likely does not cause lasting brain damage, and overstating social concerns about
    MDMA use); Amanda Kay, Comment, The Agony of Ecstasy: Reconsidering the Punitive
    Approach to United States Drug Policy, 29 Fordham Urb. L. J. 2133, 2160-64 (2002)
    (discussing scientific research on MDMA and explaining that, while there is still a lack of
    consensus in the scientific community on the neurotoxicity of MDMA, media coverage
    and prevention education are often misleading and scientists have argued that concerns
    about the effects of MDMA on the brain have previously been overstated).
    48
    U.S. Dep’t of Justice, Drug Enforcement Administration: 2013 National Drug Threat
    Assessment Summary 17 (Nov. 2013) (noting that only 10% of law enforcement agencies
    reported high levels of MDMA availability, seizures of MDMA dropped significantly
    from 2011 to 2012, and use among youths had declined since 2010).
    49
    See U.S. Dep’t of Health and Human Servs., Drug Abuse Warning Network, 2011:
    National Estimates of Drug-Related Emergency Department Visits 26 (2011) (finding
    16
    supported a well-reasoned argument from Sentencing Counsel that the 500:1 ratio was
    not supported by then-current scientific research and seriously overstated the societal
    threat of MDMA.
    Legal research by Sentencing Counsel would also certainly have revealed that the
    500:1 ratio resulting from equating MDMA to methylone had been rejected by other
    courts before Sepling’s sentencing. In United States v. McCarthy, after a two-day
    evidentiary hearing that included expert testimony, the court rejected the 500:1 ratio, and
    instead settled on a 200:1 ratio after “no witness testified that MDMA was more harmful
    than cocaine.”50 The McCarthy court pointed to scientific research undermining the
    Sentencing Commission’s finding that MDMA permanently damages brain.51 Going a
    step further, the court criticized the Commission’s “opportunistic rummaging” through
    scientific and empirical evidence to select a 500:1 ratio when then-available research
    suggested MDMA was responsible for comparatively fewer emergency room visits than
    marijuana and cocaine, was less addictive than cocaine, and associated with substantially
    less violence than cocaine.52 The court concluded that “[t]he Commission’s selective
    analysis is incompatible with the goal of uniform sentencing based on empirical data.”53
    In rejecting Sepling’s Sixth Amendment claim, the District Court discounted cases
    that MDMA was responsible for only 1.8% of drug-related emergency room visits in
    2011, compared to cocaine with 40.3% and marijuana with 36.4%).
    50
    United States v. McCarthy, No. 09 Cr. 1136 (WHP), 
    2011 WL 1991146
    , at *4
    (S.D.N.Y. May 19, 2011).
    51
    
    Id. at *2
    .
    52
    
    Id. at *3-4
    .
    53
    
    Id. at *4
    .
    17
    applying a 200:1 drug equivalency ratio for MDMA.54 Sentencing Counsel’s lack of
    preparation placed him in a position of being unable to effectively argue that the District
    Court should nevertheless consider those cases in deciding upon an appropriate ratio.
    Readily available research would have informed Sentencing Counsel that the 500:1 ratio
    is arguably much too high for MDMA.
    Even if we assume that MDMA is the appropriate analogue for methylone,
    Sentencing Counsel, in addition to challenging the 500:1 ratio for MDMA, could have
    argued for a further downward variance based on the properties of methylone. Methylone
    is a type of synthetic cathinone that was listed as a Schedule I controlled substance in
    2013, but was not mentioned in the Sentencing Guidelines until 2018.55 While the current
    Guidelines provide that a downward variance from the suggested ratio of 380:1 for
    synthetic cathinones “may be warranted in cases involving methylone, a substance of
    which a greater quantity is usually needed to produce an effect on the central nervous
    system similar to the effect produced by a typical synthetic cathinone,”56 our inquiry is
    54
    See, e.g., United States v. Qayyem, No. 10 Cr. 19 (KMW), 
    2012 WL 92287
    , at *5
    (S.D.N.Y. Jan. 11, 2012) (“[T]he 500:1 marijuana equivalency ultimately chosen by the
    Commission does not accurately reflect the then-existing research, nor is it supported by
    more recent evidence. The Court therefore adopts a 200:1 MDMA-to-marijuana
    equivalency.”)
    55
    See U.S. Sentencing Comm’n, U.S. Sentencing Guidelines Manual (2018), Supplement
    to Appendix C, Amendment 807 (Nov. 1, 2018) (explaining that “[s]ynthetic
    cathinones…are human-made substances chemically related to cathinone, a stimulant
    found in the khat plant” and adding a 380:1 conversion ratio for synthetic cathinones to
    the drug conversion tables); see also Schedule of Controlled Substances: Placement of
    Methylone Into Schedule I, 
    78 Fed. Reg. 21818
    -01 (Apr. 12, 2013).
    56
    U.S.S.G. § 2D1.1 cmt. 27(D) (2018).
    18
    limited to the information that was available to Sentencing Counsel when Sepling was
    sentenced in 2014.57
    The District Court accepted that methylone was “somewhat” less serious than
    MDMA.58 However, Sentencing Counsel could have forcefully argued that methylone
    does not have “somewhat less of an impact” than MDMA, but rather is significantly less
    serious.59 An appropriate investigation would have revealed that the Drug Enforcement
    Administration released a report describing the chemical structure of methylone and
    noting that it “was about half as potent as MDMA.”60 Some scientific studies have also
    suggested that methylone is less potent than MDMA,61 causes no lasting serotonin
    depletion even after repeated high doses,62 and poses a low risk of addiction compared to
    other controlled substances.63 Moreover, publicly available data at the time of sentencing
    57
    See Yarborough v. Gentry, 
    540 U.S. 1
    , 6 (2003) (per curiam) (“The Sixth Amendment
    guarantees reasonable competence, not perfect advocacy judged with the benefit of
    hindsight.”).
    58
    JA92.
    59
    See United States v. Kamper, 
    748 F.3d 728
    , 742 (6th Cir. 2014) (holding that district
    courts may exercise their discretion “to reject the MDMA-to-marijuana ratio…based on a
    reasoned policy disagreement”).
    60
    See Drug Enforcement Admin., Drug & Chemical Evaluation Section, 3,4-
    Methylenedioxymethcathinone (Methylone) (October 2013), available at
    https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-
    comment/20170310/McAvoy.pdf, pg. 27.
    61
    Michael H. Baumann et al., The Designer Methcathinone Analogs, Mephedrone and
    Methylone, Are Substrates for Monoamine Transporters in Brain Tissue, 37
    Neuropsychopharmacology 1192, 1200 (2012).
    62
    
    Id. at 1201
     (“[W]e found that repeated high-dose administration of…methylone
    produce[s] acute hyperthermia and motor stimulation, but no lasting changes in brain
    tissue monoamines.”).
    63
    Lucas Watterson et al., The Reinforcing and Rewarding Effects of Methylone, a
    Synthetic Cathinone Commonly Found in “Bath Salts,” 9 J. Addiction Res. & Therapy 1,
    11 (2012) (finding that “methylone possesses a relatively low abuse liability” in an
    19
    would have disclosed to Sentencing Counsel that less than one percent of emergency
    room visits in 2011 involved synthetic cathinones, such as methylone.64 And that of these
    visits only 7,578—or about 0.3% of the total visits—were due to synthetic cathinones
    alone rather than being used in combination with other drugs.65
    We do not suggest that MDMA and methylone are without harmful effects, which
    the Government may demonstrate with countervailing empirical evidence at resentencing.
    Nor do we imply that Sentencing Counsel was constitutionally required to discover and
    utilize every one of these available resources. Rather, the aforementioned research
    illustrates the variety of fact- and policy-based arguments in favor of a greater downward
    variance at Sentencing Counsel’s disposal at the time of sentencing. Yet, it is apparent
    that he made absolutely no attempt to inform himself of such information or present it to
    the District Court.
    animal study and “predict[ing] that methylone dependence may be possible in a subset of
    [humans], but that consumption patterns would also generally stay intermittent and
    typically not advance to compulsive use.”). But see J.S. Bonano et al., Abuse-related and
    Abuse-limiting Effects of Methcathinone and the Synthetic "Bath Salts" Cathinone
    Analogs Methylenedioxypyrovalerone (MDPV), Methylone and Mephedrone on
    Intracranial Self-stimulation in Rats, 231 Psychopharmacology 199, 204-05 (2014)
    (“[M]ethylone…produced mixed effects that included abuse-related facilitation of low
    [self-stimulation] rates and abuse-limiting depression of high [self-stimulation] rates.”).
    64
    U.S. Dep’t of Health & Human Servs., Substance Abuse and Mental Health Serv.
    Admin., The DAWN Report, (Sept. 17, 2013), available at
    https://www.samhsa.gov/data/sites/default/files/spot117-bath-salts-2013/spot117-bath-
    salts-2013.pdf. While the report does not provide data specific to methylone, Sentencing
    Counsel could reasonably argue that methylone alone accounts for an even smaller
    number of emergency room visits since the data encompasses all cathinone drugs
    combined.
    65
    
    Id.
    20
    In rejecting Sepling’s § 2255 motion, the District Court suggested that Sentencing
    Counsel’s performance did not fall below an objective standard of reasonableness
    because, “[a]lthough sentencing counsel acknowledged that he knew little about
    methylone, he appropriately likened the drug to a ‘watered down ecstasy’” and
    “counsel’s characterization of the drug was consistent with Petitioner’s statements at
    sentencing.”66
    This misses the point. As the Drug Enforcement Agency has shown, methylone is
    not only less potent than MDMA, it is also structurally different from MDMA. There was
    no reason for Sentencing Counsel to expect Sepling to appreciate the pharmacological
    impact of the equivalent weights of the various drugs he may have consumed, or for the
    court to credit his untutored descriptions of methylone as scientific knowledge.
    Moreover, even absent constitutionally diligent research efforts, Sentencing
    Counsel could have reminded the court that there was no way to know if the street drugs
    Sepling had a history of using had been adulterated or mixed with something that
    enhanced or exaggerated the drug’s effect on him. There was also no way of knowing the
    quantity of drug required to produce equivalent effects. Finally, there was no way of
    knowing if a given drug’s effect on Sepling was typical. Yet, not only did Sentencing
    Counsel fail to object to the court’s reliance on Sepling as an expert witness, he actually
    encouraged his client to testify as such.
    66
    JA13.
    21
    Sentencing Counsel cannot adequately represent a client at a sentencing involving
    a controlled substance not specified in the Guidelines without undertaking a reasonable
    inquiry into that substance in order to challenge the ratio set forth in the equivalency
    table, when appropriate. While a sentencing court “may give weight to any relevant
    information before it, including uncorroborated hearsay, provided that the information
    has sufficient indicia of reliability to support its accuracy,”67 there was no such indicia of
    reliability here. Likewise, “lay testimony and circumstantial evidence may be sufficient,
    without the introduction of an expert chemical analysis, to establish the identity of the
    substance involved in an alleged narcotics transaction,”68 but here there was no dispute
    over the identity of this substance. The knowledge required in this case was both complex
    and technical. The testimony of a defendant with a history of drug abuse about the kind
    of high s/he gets from an unspecified quantity of a drug of unknown purity is no
    substitute for the kind of information that could be provided by an informed defense
    attorney or from expert testimony that the court may wish to consider. Finally, we can see
    no justification for Sentencing Counsel not even making an inquiry into how and why the
    Probation Officer selected MDMA as the appropriate guideline analogue for methylone.
    The Sixth Amendment right to effective representation requires that counsel
    provide the sentencing court with more than the unscientific speculation that was the
    hallmark of this sentencing hearing when that speculation is detrimental to the client. Yet,
    67
    United States v. Wilkinson, 
    590 F.3d 259
    , 269 (4th Cir. 2010).
    68
    United States v. Bryce, 
    208 F.3d 346
    , 353 (2d Cir.1999) (quoting United States v.
    Dolan, 
    544 F.2d 1219
    , 1221 (4th Cir.1976)).
    22
    here, by Sentencing Counsel’s own admission, he appeared before the court, representing
    a client facing nearly twenty years in prison, without investigating the pharmaceutical
    qualities or appropriate analogues for the substance driving that sentence.69 Although we
    realize that “it is critical that courts be highly deferential to counsel’s reasonable strategic
    decisions and guard against the temptation to engage in hindsight,” 70 no such ‘Monday
    morning quarterbacking’ is involved in our decision here as counsel’s dereliction is
    obvious. “Ineffectiveness is generally clear in the context of complete failure to
    investigate because counsel can hardly be said to have made a strategic choice against
    pursuing a certain line of investigation when s/he has not yet obtained the facts on which
    such a decision could be made.”71
    B. Prejudice to Sepling
    Sepling also satisfies Strickland’s second prong. The Government argues that,
    even if Sepling meets the first prong of Strickland, he cannot satisfy its prejudice prong
    because he received a sentence below his Guidelines range. Similarly, the District Court
    concluded that Sepling was not prejudiced because the court accepted that “methylone
    [has] somewhat less of an impact than ecstasy” and “the guidelines were more severe
    than they ought to be and did not ‘suit [the court] in terms of fairness.’”72 However,
    Sepling sustains his burden under Strickland if our confidence in the sentence that he
    69
    JA76.
    70
    Marshall v. Hendricks, 
    307 F.3d 36
    , 85 (3d Cir. 2002) (internal quotation marks
    omitted).
    
    71 Gray, 878
     F.2d at 711.
    72
    JA14.
    23
    received is undermined.73 It is. Properly prepared counsel could have made a strong
    argument, grounded in readily available research, that methylone is significantly less
    serious than MDMA. Sentencing Counsel not only failed to raise any such argument, but
    he even resisted the District Court’s suggestion that methylone may not be as dangerous
    as MDMA. When the District Court invited counsel to confirm that methylone had
    “somewhat less of an impact than ecstasy,” Sentencing Counsel responded: “I don’t
    know.”74 Indeed, he did not.
    The District Court, in explaining Sepling’s sentence, identified its considerations.
    First, the court stated that “[t]he sentence [the court imposes] has to reflect the
    seriousness of this offense.”75 By considering this, the court sought “to avoid
    unwarranted sentencing differences among defendants who have similar records who
    have been found guilty of similar crimes.”76 Then the court conceded that, while it had
    “plenty of comparators on drug distribution and drug sales,” for methylone it didn’t
    “really have any comparators.”77 Finally, the court conceded that it could not determine
    “whether [methylone or MDMA] equate in terms of conversion to marijuana or not.”78 If
    73
    Rompilla v. Beard, 
    545 U.S. 374
    , 393 (2005) (holding that the failure to investigate and
    discover mitigating evidence at the sentencing stage was ineffective assistance of counsel
    because “mitigating evidence, taken as a whole, might well have influenced the jury’s
    appraisal” of the defendant’s culpability and therefore “the likelihood of a different result
    if the evidence had gone in is sufficient to undermine confidence in the outcome actually
    reached at sentencing”) (internal quotations and citations omitted).
    74
    JA92.
    75
    JA93.
    76
    
    Id.
    77
    
    Id.
    78
    
    Id.
    24
    Sentencing Counsel had provided the kind of information referenced above comparing
    methylone to MDMA, we are persuaded that there is a sufficient likelihood that Sepling
    could have received a lesser sentence to undermine our confidence in the outcome of the
    sentencing proceeding.
    Since the Supreme Court decided United States v Booker,79 courts have
    understood that federal Sentencing Guidelines are advisory, not mandatory. Nevertheless,
    “sentencing decisions are anchored by the Guidelines.”80 Indeed, at least two district
    courts applied a 200:1 conversion ratio for MDMA based on policy disagreements with
    the Guidelines,81 and one court of appeals held that district courts may exercise their
    discretion to reject the use of the “MDMA-to-marijuana ratio.”82 We appreciate that the
    District Court did award a downward variance to Sepling based upon the court’s
    conclusion that the 500:1 ratio derived from using MDMA may well overstate the
    seriousness of methylone. However, that does not negate the fact that Sepling may have
    received an even greater variance if Sentencing Counsel had been sufficiently informed
    about methylone.
    A significant variance from an arguably high and inaccurate guideline sentence is
    not a gift. The District Court expressed a desire to base Sepling’s sentence on the
    seriousness of distributing methylone. It is impossible to review the transcript of the
    sentencing proceeding without concluding that the District Court did not have sufficient
    79
    
    543 U.S. 220
     (2005).
    80
    Peugh v. United States, 
    569 U.S. 530
    , 541 (2013).
    81
    Qayyem, 
    2012 WL 92287
    , at *5; McCarthy, 
    2011 WL 1991146
    , at *1, 4-5.
    82
    Kamper, 748 F.3d at 742.
    25
    information to assess the actual seriousness of methylone. We therefore cannot dismiss
    the very real possibility that the court may have been amenable to a further downward
    variance based upon evidence specific to methylone’s reduced effect as compared to
    MDMA. That is sufficient to “undermine [our] confidence in the outcome.” 83
    This does not mean that the District Court had to accept the 35:1 ratio of MDMA
    to marijuana that existed before the Ecstasy Anti-Proliferation Act of 2000, nor do we
    suggest that any specific ratio was appropriate. We only conclude that it is sufficiently
    likely that the District Court would have started with a substantially lower ratio than
    500:1 in determining an appropriate sentence. That is enough to establish prejudice under
    Strickland. “[A]ny amount of actual jail time has Sixth Amendment significance.”84 And
    “[i]n most cases a defendant who has shown that the district court mistakenly deemed
    applicable an incorrect, higher Guidelines range has demonstrated a reasonable
    probability of a different outcome.”85
    The Government and District Court also claim that Sepling cannot establish
    prejudice because he was sentenced based upon the court’s application of the sentencing
    factors required under 
    18 U.S.C. § 3553
    (a) and not based upon the Guidelines range.86
    However, the District Court itself correctly acknowledged at sentencing that the selection
    of MDMA as an equivalent substance to methylone was “driving” the Guidelines
    83
    Strickland, 
    466 U.S. at 694
    .
    84
    Glover, 
    531 U.S. at 203
    .
    85
    Molina-Martinez v. United States, 
    136 S. Ct. 1338
    , 1346 (2016).
    86
    Gov’t Br. at 32-34.
    26
    calculation.87 Moreover, this argument also fails to appreciate that Section 3553(a)
    clearly states that a court must impose a sentence that is “sufficient but not greater than
    necessary, to comply with the purposes of [sentencing].”88 This requirement is often
    referred to as ‘‘the parsimony provision,’’ and the Supreme Court has referred to it as the
    ‘‘overarching instruction’’ of Section 3553(a).89 It is impossible for the District Court to
    comply with this principle if it does not have a reasonable understanding of the
    seriousness of the controlled substance at the heart of the sentencing.
    Because Sentencing Counsel’s dereliction put the District Court in a position
    where it was literally “flying blind” at sentencing, there was no way for a district court to
    know if the sentence imposed was the least serious penalty consistent with the Court’s
    objective in imposing the sentence. The District Court’s discretion was guided only by
    the unscientific statements of an abuser of multiple drugs who had no way of knowing if
    his experience was typical, whether the drugs he was referring to had been adulterated, or
    what dose of the active ingredient in a given mixture of ingested drugs was required to
    produce a certain effect on the user. The fact that the District Court acknowledged that
    methylone may be “somewhat” less severe than its Guidelines analogue of MDMA does
    not remedy these deficiencies.90
    87
    JA89, 92.
    88
    
    18 U.S.C. § 3553
    (a). See also Booker, 543 U.S. at 268.
    89
    See Kimbrough v. United States, 
    552 U.S. 85
    , 101 (2007).
    90
    JA92.
    27
    We conclude that Sentencing Counsel’s representation of Sepling at his sentencing
    hearing was ineffective. Therefore, we need not take up Sepling’s second claim that
    counsel was ineffective for advising him against pursuing an appeal.
    III. Conclusion
    For the foregoing reasons, we will vacate the District Court’s order denying
    Sepling’s § 2255 motion and remand for further proceedings consistent with this
    opinion.91
    91
    Upon consideration of the information about methylone and its Guideline analogue, the
    District Court is not precluded from imposing the same sentence on Sepling if it is
    satisfied the facts and law support it. See United States v. Headley, 
    923 F.2d 1079
    , 1085
    (3d Cir. 1991) (holding that sentencing counsel rendered ineffective assistance but
    remanding the matter to the district court so it could consider applicability of an
    adjustment if it deemed “such an adjustment [was] warranted”).
    28