United States v. Le'Ann Koss ( 2016 )

Case: 14-51173 Document: 00513371865 Page: 1 Date Filed: 02/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-51173 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, February 5, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
LE’ANN KOSS,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before STEWART, Chief Judge, and KING and HIGGINSON, Circuit Judges.
CARL E. STEWART, Chief Judge:
Appellant Le’Ann Koss (“Koss”) pleaded guilty to two federal drug
offenses involving quantities of marijuana and was sentenced to 70 months’
imprisonment on each offense, to run concurrently. On appeal, Koss raises
several challenges to her sentence, all of which relate to the district court’s
determination that two substances involved in the offenses—a homemade
“marijuana butter” and a “brown chunky substance”—were substances
containing detectable amounts of Tetrahydrocannabinol (“THC”) for purposes
of calculating their marijuana equivalency using the 1:167 gram conversion
ratio in the Sentencing Guidelines’ Drug Equivalency Table for Schedule I
Marijuana. See USSG § 2D1.1, comment. (n.8(D)). Finding no procedural or
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substantive error in the sentence imposed, and no ambiguity regarding the
Guidelines’ listing of THC, we AFFIRM.
BACKGROUND AND PROCEEDINGS
In 2013, law enforcement agencies received information suggesting that
the Koss family was involved in the growth and interstate transfer of high-
grade marijuana. A subsequent investigation revealed that, for several years,
members of the Koss family had grown large amounts of marijuana at
residences in California (purportedly under the guise of medical marijuana
collectives) and used various individuals to transport the marijuana to Texas
for distribution. During the course of a later presentence interview, Koss
admitted that she had, on several occasions, obtained marijuana from one of
her sons involved in the marijuana operation; distributed that marijuana to
another individual who thereafter sold it; and essentially acted as a
bookkeeper for one of her sons by collecting money in exchange for marijuana,
writing down sales information, and paying the son’s bills. During the same
interview, Koss detailed that she had a number of medical conditions, that she
self-medicated these conditions with marijuana, and that she had made
marijuana-infused butter to ingest and aid in her self-medication.
The investigation eventually resulted in a superseding indictment that
charged Koss and six co-defendants, including her husband and two of their
sons, with one count of conspiracy to possess with intent to distribute in excess
of 50 kilograms of marijuana and one count of aiding and abetting possession
with intent to distribute in excess of 50 kilograms of marijuana. Koss pleaded
guilty to both offenses without a plea agreement.
For sentencing purposes, the presentence investigation report (“PSR”)
held Koss personally accountable for “at least 954.679 kilograms of marijuana.”
This amount included 7.03 grams of a “brown chunky substance” and 5.42
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kilograms of “marijuana butter,” 1 both of which law enforcement seized during
a search of Koss’ Texas residence. The PSR noted that, according to laboratory
testing completed by the Texas Department of Public Safety (“DPS”), both
substances contained detectable amounts of THC. Accordingly, the PSR used
the Sentencing Guidelines’ Drug Equivalency Table for Schedule I
Marijuana—which provides that one gram of a mixture or substance
containing a detectable amount of organic or synthetic THC is the equivalent
of 167 grams of marijuana—and calculated that the two substances were the
equivalent of 906.31 kilograms of marijuana. See USSG § 2D1.1, comment.
(n.8(D)); see also id. § 2D1.1(c), (Notes to Drug Quantity Table (A)). The PSR
then added that amount to 48.365 kilograms of marijuana otherwise involved
in the conspiracy to arrive at the total amount of 954.679 kilograms of
marijuana attributable to Koss for sentencing purposes. 2
Based on the 954.679 kilograms of marijuana attributable to her, the
PSR calculated Koss’ base offense level as 30 under USSG § 2D1.1(c)(5). Koss
received a three-level reduction for acceptance of responsibility, which reduced
her offense level to 27. That level, combined with Koss’ criminal history
category of I, yielded a Guidelines-sentencing range of 70 to 87 months on each
offense.
Koss filed a pre-sentencing objection to the PSR’s use of the 1:167 gram
ratio to convert the marijuana butter to its marijuana equivalent for purposes
1 In the PSR and the Texas Department of Public Safety lab reports discussed infra,
the marijuana butter at issue is referred to as a “moldy, foul smelling green substance.”
Neither party disputes that the moldy, foul smelling green substance was, as Koss described
in her presentence interview, a homemade marijuana-infused butter. Accordingly, we refer
to the substance as such herein.
2 Koss concedes in her brief that the 48.365 kilograms of marijuana otherwise
attributable to her is not at issue on appeal.
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of calculating her base offense level. In that filing, Koss argued that the PSR
incorrectly used the 1:167 gram ratio because that ratio was only applicable to
substances made using pure THC, not substances like the marijuana butter
that contained THC as an active ingredient merely because it was made using
marijuana itself. Along the same lines, Koss argued that the Guidelines’ Drug
Equivalency Tables “clearly anticipate greater punishment for substances with
higher concentration or potency” and, thus, the marijuana butter could not be
treated as a substance containing THC for sentencing purposes because no
quantification had been done on the purity or concentration of THC in the
butter.
In a separate presentencing memorandum, Koss further fleshed out her
objection to the use of the 1:167 gram ratio for the marijuana butter calculation
and added a challenge to the PSR’s use of the same ratio to calculate the
marijuana equivalency of the brown chunky substance. Koss argued that the
PSR mischaracterized the marijuana butter as a substance containing THC
and that the substance was actually “a substance containing marijuana,” the
equivalency of which should have been calculated using the 1:1 gram ratio in
USSG § 2D1.1, comment. (n.8(D)). Koss also represented that the PSR
mischaracterized the brown chunky substance and that the substance was
actually hashish, the equivalency of which should have been calculated using
the 1:5 gram ratio for “Cannabis Resin or Hashish” in USSG § 2D1.1, comment.
(n.8(D)). All combined, Koss claimed that she should be held accountable only
for a total of 53.82 kilograms of marijuana, consisting of: “5.42 kilograms of a
substance containing marijuana” (which converts to 5.42 kilograms of
marijuana equivalent); “7.03 grams of hashish” (which converts to 0.035
kilograms of marijuana equivalent); and 48.365 kilograms of marijuana
otherwise involved in the conspiracy. Based on her math and the 53.82
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kilograms of marijuana, Koss argued that her base offense level should have
been 20 under USSG § 2D1.1 (c)(10), which, combined with her criminal history
category of I, meant that her Guidelines-sentencing range should have been 33
to 41 months on each offense.
At sentencing, Koss, through counsel, re-urged her objections to the
offense level calculations pertaining to the marijuana butter and the brown
chunky substance. Koss did not challenge the results of the lab reports as
inaccurate or otherwise offer evidence disputing the reports; rather, Koss
continued to argue that the reports failed to classify the two substances in a
manner that was consistent with the Guidelines, i.e., the reports failed to
quantify the concentration of THC in the marijuana butter so as to justify the
1:167 gram THC ratio as opposed to the 1:1 gram marijuana ratio and similarly
failed to classify the brown chunky substance as hashish for purposes of the
1:5 gram hashish ratio as opposed to the 1:167 gram THC ratio. The district
court overruled Koss’ objections and adopted the PSR’s offense level and
Guidelines-range calculations, explaining that “the probation office has
correctly used the information it has and the only information it has which is
th[e] lab report[s] and it has correctly applied the guidelines in arriving at the
amount of controlled substance that should be used.” The court then sentenced
Koss to a within-Guidelines sentence of 70 months’ imprisonment on each
count, to run concurrently, and five years of supervised release. Koss timely
appealed.
DISCUSSION
On appeal, Koss presents several procedural and substantive challenges
to her sentence, all of which derive from her argument that the district court
erred when it used the 1:167 gram ratio in reference to the 5.42 kilograms of
marijuana butter and the 7.03 grams of the brown chunky substance. Koss
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also contends that the separate listing of THC in the Drug Equivalency Table
for Schedule I Marijuana, see USSG § 2D1.1, comment. (n.8(D)), is
unconstitutionally ambiguous such that the rule of lenity should apply. We
address each argument in turn. 3
I.
We first address whether the district court committed procedural or
substantive error in imposing Koss’ sentence. We review sentences “for
reasonableness using a two-step process.” United States v. Groce, 784 F.3d
291, 294 (5th Cir. 2015). First, we must “ensure that the district court
committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C. § 3553(a)] factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). Under this
3 In its brief, the Government raised a separate issue in Koss’ favor: whether the
district court erred when sentencing Koss to 70 months’ imprisonment because the amount
of marijuana for which the PSR held her personally accountable (48.635 kilograms, excluding
amounts of mixtures or substances containing detectable amounts of “THC” that were
considered as relevant conduct for sentencing purposes but were not charged in the
indictment) was less than the amount of marijuana charged in the indictment (in excess of
50 kilograms) for purposes of the twenty-year statutory maximum in 21 U.S.C. § 841(b)(1)(C).
Because the Government raised this issue for the first time in its response brief, and Koss
addressed the issue for the first time in reply, we have discretion whether to address the
merits of this issue. See United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). We
exercise this discretion only to briefly note that the resolution of this issue is controlled by
this circuit’s recent case law, which suggests that the controlling drug quantity amount “for
determining statutory minimum and maximum sentences . . . [is] the quantity of drugs with
which [the defendant] was directly involved or that was reasonably foreseeable to him.”
United States v. Haines, 803 F.3d 713, 740–42 (5th Cir. 2015) (emphasis added). As we held
in the appeal of one of Koss’ co-conspirators, what thus matters here is that the charged
conspiracy involved the transportation and distribution of well over 50 kilograms of
marijuana, an amount that was reasonably foreseeable by Koss based on the circumstances
of the offenses even if she did not personally participate in dealing or transporting that
quantity of drugs. See United States v. Koss, 624 F. App’x 871, 873–74 (5th Cir. 2015) (per
curiam).
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first step, we review the district court’s interpretation and application of the
Guidelines de novo and its findings of fact for clear error. See United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Relevant here, “[t]he district court’s calculation of the quantity of drugs
involved in an offense is a factual determination.” United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005) (quoting United States v. Alford, 142 F.3d
825, 831 (5th Cir. 1998)). Such a factual finding is “entitled to considerable
deference and will be reversed only if [it is] clearly erroneous.” Id. (quotation
marks and citation omitted). Generally, “[a] factual finding is not clearly
erroneous as long as it is plausible in light of the record as a whole,” and,
“[u]ltimately, the district court need only determine its factual findings at
sentencing by a preponderance of the relevant and sufficiently reliable
evidence.” Id. at 246–47 (quotation marks and citations omitted).
If we are convinced that the district court’s factual determinations were
not clearly erroneous and that the sentence imposed is otherwise procedurally
sound, we proceed to the second step of our review and consider the substantive
reasonableness of the sentence. See Groce, 784 F.3d at 294. “Appellate review
for substantive reasonableness is highly deferential, because the sentencing
court is in a better position to find facts and judge their import under
the § 3553(a) factors with respect to a particular defendant.” United States v.
Scott, 654 F.3d 552, 555 (5th Cir. 2011) (quotation marks and citation omitted).
“We apply an abuse-of-discretion standard of review, and within-Guidelines
sentences enjoy a presumption of reasonableness.” Id. That “presumption is
rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
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balancing sentencing factors.” Id. (quoting United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009)).
A.
Koss argues that the district court committed several procedural errors
in imposing her sentence. Specifically, Koss challenges as error the district
court’s application of the 1:167 gram ratio in USSG § 2D1.1, comment. (n.8(D)),
to the marijuana butter and the brown chunky substance because “neither
[federal] statutes nor the Sentencing Guidelines provide any qualifying
definition for THC (synthetic or organic) or any direction on how to apply its
ratio provisions.” As a challenge to the district court’s interpretation and
application of the Guidelines, we review this argument de novo. See Cisneros-
Gutierrez, 517 F.3d at 764. Alternatively, Koss challenges the sufficiency of
the evidence supporting the district court’s factual determination that the
marijuana butter and the brown chunky substance were indeed “substances
containing THC” for purposes of the 1:167 gram ratio. As a challenge to the
district court’s calculation of the quantity of drugs involved in the offenses, we
review Koss’ latter argument for clear error. Id.
1.
Despite Koss’ arguments, we are not convinced that the district court
erred in interpreting and applying the Guidelines. Each of Koss’ arguments
here begins with one of two non-starters, to wit, either the notion that federal
statutes and the Sentencing Guidelines are silent and provide no legal
definition of THC or the notion that the Guidelines fail to provide adequate
guidance on how to calculate the marijuana equivalency of mixtures or
substances containing detectable amounts of THC. Contrary to the first
assertion, the Code of Federal Regulations defines the term THC in detail. See
21 C.F.R. § 1308.11(d)(31). Thus, had Koss challenged the results of the lab
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reports as inaccurate at sentencing, 4 a legal definition was available to guide
the district court’s determination as to whether the marijuana butter and the
brown chunky substance were in fact “substances containing THC” for
purposes of the Guidelines. Koss’ argument to the contrary is without merit.
As to the second assertion, Koss points to no infirmity in the Guidelines’
careful directions for how to calculate the marijuana equivalency of
substances—like the marijuana butter and the brown chunky substance at
issue—that contain detectable amounts of THC. As is relevant here, the
Guidelines instruct that a defendant’s base offense level for violations of 21
U.S.C. §§ 841(a)(1), 846, is the level specified in the Drug Quantity Table set
forth in USSG § 2D1.1(c). See USSG § 2D1.1(a)(5). However, as the
commentary to § 2D1.1 recognizes, the Drug Quantity Table refers only to the
more common controlled substances, i.e., heroin, cocaine, PCP,
methamphetamine, LSD, and marijuana, that are mentioned in the penalty
provision of the Controlled Substances Act. See USSG § 2D1.1, comment.
(n.8(A)); see also 21 U.S.C. § 841(b). The commentary to § 2D1.1 addresses the
resulting gaps by setting forth Drug Equivalency Tables that address
controlled substances not referenced in the Drug Quantity Table and that
provide a means for combining different controlled substances to obtain a
single offense level. See USSG § 2D1.1, comment. (n.8(A)-(D)). For example,
as is pertinent here, the Drug Equivalency Table for “Schedule I Marijuana”
sets forth that one gram of organic or synthetic THC converts to 167 grams of
marijuana equivalent for purposes of calculating a defendant’s base offense
level. Id. § 2D1.1, comment. (n.8(D)).
4 As we explain infra, at sentencing, Koss made several legal arguments directed at
the lab reports but did not challenge the results of the lab reports as inaccurate.
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In addition, § 2D1.1 and its commentary provide that “[u]nless otherwise
specified, the weight of a controlled substance refers to the entire weight of any
mixture or substance containing a detectable amount of the controlled
substance.” Id. § 2D1.1(c), (Notes to Drug Quantity Table(A)) (emphasis
added); see also id. § 2D1.1, comment. (n.1) (“‘Mixture or substance’ as used in
this guideline has the same meaning as in 21 U.S.C. § 841, except as expressly
provided.”); Chapman v. United States, 500 U.S. 453, 459 (1991) (construing §
841’s reference to a “mixture or substance containing a detectable amount” to
mean that “[s]o long as [the substance] contains a detectable amount, the
entire mixture or substance is to be weighed when calculating the sentence”).
The commentary to § 2D1.1 provides exceptions to this general rule for
“materials that must be separated from the controlled substance before the
controlled substance can be used,” such as “fiberglass in a cocaine/fiberglass
bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from
an illicit laboratory used to manufacture a controlled substance.” USSG
§ 2D1.1, comment. (n.1).
Section 2D1.1(c) also expressly carves out caveats for certain controlled
substances where the relevant weight for purposes of calculating a defendant’s
base offense level is the weight of the controlled substance itself, not the entire
weight of the substance and its carrier medium, which requires evidence of
purity or concentration. Specifically, § 2D1.1(c) provides that the relevant
weight is the weight of the pure substance, itself, that is contained in a
“mixture or substance” for “PCP (actual),” “Amphetamine (actual),”
“Methamphetamine (actual),” and “Oxycodone (actual).” Id. § 2D1.1(c), (Notes
to Drug Quantity Table (B)) (“For example, a mixture weighing 10 grams
containing PCP at 50% purity contains 5 grams of PCP (actual).”). Similarly,
“[i]n the case of LSD on a carrier medium (e.g., a sheet of blotter paper),” the
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relevant weight does not include the carrier medium. Id. § 2D1.1(c), (Notes to
Drug Quantity Table (G)).
Though requiring several steps, the language of § 2D1.1 and its
commentary provide clear directions for how to calculate the marijuana
equivalency of mixtures or substances like the marijuana butter and the brown
chunky substance that are determined to contain a detectable amount of THC.
Our review indicates that the PSR, as adopted by the district court,
conscientiously followed each step in light of the available evidence.
At sentencing, the district court adopted the PSR’s calculation that
954.679 kilograms of marijuana were attributable to Koss in relation to the
charged offenses. This amount was based, in relevant part, on the DPS lab
reports, which indicated that the marijuana butter and the brown chunky
substance contained detectable amounts of THC and that each substance had
a net weight of 5.42 kilograms and 7.03 grams, respectively. Because THC is
not a substance listed in the Drug Quantity Table, the PSR referred to the
Drug Equivalency Table for Schedule I Marijuana in USSG § 2D1.1, comment.
(n.8(D)), which sets forth that one gram of THC is the equivalent of 167 grams
of marijuana. The marijuana butter and the brown chunky substance are not
substances that fall within the limited circumstances discussed above for
which the Guidelines provide that the relevant weight for sentencing purposes
is the weight of the pure substance itself and not the full weight of the
substance and its carrier medium. 5 Consequently, using the full weight of the
5 Neither the brown chunky substance nor the marijuana butter would fall within the
caveats carved out in Note B to the Drug Quantity Table for PCP (actual), Amphetamine
(actual), Methamphetamine (actual), and Oxycodone (actual). See USSG § 2D1.1(c), (Notes
to Drug Quantity Table (B)). There is no indication that the brown chunky substance, which
Koss asserts was actually hashish, would fit the caveat in Application Note 1 to § 2D1.1 for
“materials that must be separated from the controlled substance before the controlled
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substances, the PSR converted the 5.42 kilograms of marijuana butter to
905.14 kilograms of marijuana equivalent and the 7.03 grams of the brown
chunky substance to 1.7401 kilograms of marijuana equivalent. The PSR then
added those two amounts to 48.365 kilograms of marijuana otherwise involved
in the conspiracy to arrive at a total of 954.679 kilograms of marijuana
attributable to Koss for sentencing purposes. That total drug quantity resulted
in a base offense level of 30 under USSG § 2D1.1(c)(10). Koss’ final offense
level was reduced to 27 after a three-level reduction for acceptance of
responsibility, which, combined with her criminal history category of I, yielded
an applicable Guidelines-sentencing range of 70-87 months’ imprisonment on
each offense.
Based on the foregoing, we conclude that the district court’s step-by-step
application of the 1:167 gram ratio to calculate the marijuana equivalency of
the marijuana butter and the brown chunky substance, and the resulting
Guidelines-sentencing range, was sound. Thus, the district court committed
no procedural error, unless, as Koss argues, the sentencing evidence was
insufficient to show that the marijuana butter and the brown chunky
substance were indeed substances containing detectable amounts of THC. We
next discuss Koss’ factual challenges to that effect.
2.
In addition to her general challenges to the district court’s interpretation
and application of the Guidelines, Koss challenges the sufficiency of the
evidence supporting the district court’s drug quantity determination.
Specifically, Koss argues that the preponderance of the sentencing evidence
substance can be used.” See USSG § 2D1.1, comment. (n.1). Similarly, as to the marijuana
butter, Koss’ entire reason for mixing THC with the butter was to ingest the controlled
substance (THC) together with its carrier medium (the butter).
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did not support the district court’s determination that the marijuana butter
and the brown chunky substance were in fact substances containing detectable
amounts of THC for purposes of applying the 1:167 gram ratio in the Drug
Equivalency Table for Schedule I Marijuana, see USSG § 2D1.1, comment.
(n.8(D)), to calculate their marijuana equivalency.
We conclude that the district court’s determination that the marijuana
butter and the brown chunky substance were substances containing detectable
amounts of THC for purposes of the 1:167 gram ratio was not clearly erroneous
in light of the available sentencing evidence. At sentencing, the district court
relied upon the information in the PSR, namely and as is relevant here, the
DPS lab reports, to determine the total drug quantity attributable to Koss for
sentencing purposes. As set forth above, the DPS lab reports indicated that
the marijuana butter and the brown chunky substance did in fact contain
detectable amounts of THC and that each substance had a net weight of 5.42
kilograms and 7.03 grams, respectively. Such information in the PSR is
presumed reliable, and Koss bore the burden “to demonstrate by competent
rebuttal evidence that the information [was] materially untrue, inaccurate or
unreliable.” United States v. Gomez-Alvarez, 781 F.3d 787, 796 (5th Cir. 2015)
(quotation marks and citation omitted); see also United States v. Alaniz, 726
F.3d 586, 619 (5th Cir. 2013) (“Generally, a PSR bears sufficient indicia of
reliability to permit the sentencing court to rely on it at sentencing. . . . [I]n the
absence of rebuttal evidence, the sentencing court may properly rely on the
PSR and adopt it.” (ellipsis in original) (quoting United States v. Ollison, 555
F.3d 152, 164 (5th Cir. 2009)).
Koss did not attempt to present such rebuttal evidence, nor did she object
to the admission of the DPS lab reports at sentencing or object to the results of
the lab reports as inaccurate or materially untrue. As the Government points
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out in its brief, Koss did not call the Government’s laboratory technician or any
other chemist to testify; she did not offer any evidence of flaws in the DPS lab’s
practices; she did not take the stand at sentencing to explain how she made
the marijuana butter 6 or to clarify the contents of the brown chunky substance;
nor did she did call any witnesses to explain the contents of either substance.
Absent contrary evidence, we hold that the DPS lab reports—which reflected
that the marijuana butter and the brown chunky substance were in fact
substances containing a detectable amount of THC—were sufficient to support
application of the 1:167 gram ratio by a preponderance of the evidence and that
the district court did not clearly err in calculating the marijuana equivalency
of the marijuana butter and the brown chunky substance using that ratio.
Koss argues that the DPS lab reports provided an insufficient starting
point for the district court’s use of the 1:167 gram ratio. As to the brown
chunky substance, Koss contends that the DPS lab reports were insufficient
because the reports fail to account for the fact that the substance was actually
hashish. Thus, Koss argues, application of the 1:167 gram ratio for a substance
containing THC was inappropriate because USSG § 2D1.1, comment. (n.8(D)),
expressly provides that “substances containing hashish” are to be converted
using a 1:5 gram ratio. The problem with Koss’ argument to this effect is that
she failed to challenge the DPS lab reports in any meaningful way at
6 To be fair, the PSR does reflect that Koss informed the probation department that
she made the marijuana butter using between five to seven grams of low-grade marijuana
per pound of butter. However, even assuming such a statement is relevant, Koss did not
corroborate this self-serving statement with any testimony or evidence at sentencing. We
decline to hold that the district court’s reliance on the DPS lab reports was clear error based
solely on Koss’ uncorroborated, self-serving testimony in the PSR. Cf. United States v.
Allibhai, 939 F.2d 244, 254 (5th Cir. 1991) (holding that, in finding offense conduct relevant
to the calculation of a defendant’s base offense level, a “district court need not credit [the
defendant’s] self-serving testimony, and is free instead to consider other evidence”).
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sentencing or otherwise present any competent rebuttal evidence suggesting
that the brown chunky substance was actually hashish. The only information
available to the district court at sentencing tending to show that the brown
chunky substance was actually hashish was the representations of Koss’
counsel in open court and Koss’ legal argument in her presentencing
memorandum. Such arguments are not evidence, let alone the type of
competent rebuttal evidence sufficient to show that the information in the
PSR, including the incorporated results of the DPS lab reports, was inaccurate
or materially untrue. See Alaniz, 726 F.3d at 619 (“Mere objections do not
suffice as competent rebuttal evidence.” (quoting United States v. Parker, 133
F.3d 322, 329 (5th Cir. 1998))). Accordingly, Koss’ challenge to the PSR’s
purported mischaracterization of the brown chunky substance fails.
As to the marijuana butter, Koss’ challenge is two-fold. First, Koss
contends that the DPS lab reports were insufficient to support application of
the 1:167 gram ratio because the reports failed to quantify the concentration
or purity of THC in the butter. In support, Koss presents a novel argument
that such evidence of concentration or purity is required because the Drug
Equivalency Table for Schedule I Marijuana contemplates harsher
punishments for more potent controlled substances, and thus, applying the
1:167 gram ratio to the marijuana butter, which is the harshest penalty in the
Table, was inappropriate absent evidence of the purity or concentration of THC
in the butter. Koss has pointed to no authority—from our case law or from the
Guidelines themselves—suggesting that evidence of concentration or purity is
required before the 1:167 gram ratio can be applied to a mixture or substance
containing a detectable amount of THC. Indeed, the Guidelines expressly
provide for considerations of purity in the context of several controlled
substances—i.e., PCP (actual), Amphetamine (Actual), Methamphetamine
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(Actual), and Oxycodone (actual), see USSG § 2D1.1(c) (Notes to Drug Quantity
Table (B))—and THC is not one of them. Accordingly, we reject this argument.
Second, Koss argues that the DPS lab reports were insufficient to
support application of the 1:167 gram ratio to the marijuana butter because
the reports merely indicate that the butter contained THC. Koss maintains
that this was insufficient because all five substances listed in the Drug
Equivalency Table for Schedule I Marijuana—marijuana or cannabis
(granulated, powdered, etc.); hashish oil; cannabis resin or hashish; and
organic and synthetic THC—each contains THC as an active ingredient, and
thus, a lab report that merely indicates that a substance contains THC could
just as well mean that the substance contained marijuana itself and that a less
harsh ratio should apply. We recognize the logical underpinnings of this
argument. However, the plain language of the Guidelines states that mixtures
or substances containing a detectable amount of THC are properly calculated
using the 1:167 gram ratio. The DPS lab reports indicated that the marijuana
butter was in fact a substance containing a detectable amount of THC, and
Koss put on no evidence at sentencing tending to suggest that the reports’
results were inaccurate or that the DPS lab practices failed to test the
marijuana butter in a manner that was consistent with the Guidelines. We
therefore cannot conclude that the district court’s determination was clearly
erroneous.
In sum, we reject each of Koss’ procedural challenges to her sentence.
Contrary to her assertions, we are convinced that the district court properly
interpreted and applied the Guidelines, including its adoption of the PSR’s use
of the 1:167 gram ratio in USSG § 2D1.1, comment. (n.8(D)), to calculate the
marijuana equivalency of the marijuana butter and the brown chunky
substance as substances containing THC. Because we conclude that the
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district court committed no procedural error, we proceed to the next step of our
review and address the substantive reasonableness of Koss’ sentence.
B.
Koss presents several challenges to the substantive reasonableness of
her sentence, and we review each under the deferential abuse-of-discretion
standard of review. 7 Scott, 654 F.3d at 555. For the same reasons underlying
her procedural challenges, i.e., that the Guidelines fail to provide adequate
guidance related to mixtures or substances containing detectable amounts of
THC and that the sentencing evidence was insufficient to warrant application
of the 1:167 gram ratio, Koss argues that her 70-month sentence is
substantively unreasonable. We reject these arguments for the reasons
previously discussed.
Koss further argues that her sentence was substantively unreasonable
because the sentencing evidence suggested that she was merely a medical
marijuana user who made marijuana butter to treat her medical conditions.
Such arguments merely reiterate the mitigating circumstances presented to
the district court. Koss has not shown that the district court improperly
accounted for any of the § 3553(a) factors or that the district court’s balancing
of those factors represents a clear error of judgment. Id. Koss’ disagreement
with the district court’s balancing of the mitigating factors in light of the §
3553(a) factors does not rebut the presumption of reasonableness that attaches
7 At sentencing, Koss made a number of sweeping arguments aimed at the substantive
reasonableness of her sentence, but the record is unclear as to whether she preserved her
challenge to the substantive reasonableness of her sentence by actually objecting. Thus, our
review in this case could be for plain error. See, e.g., United States v. Alvarado, 691 F.3d 592,
598 (5th Cir. 2012). The Government does not press this standard of review issue in its brief,
and it is unnecessary to do so here. Even under the abuse-of-discretion standard, which is
more favorable to Koss, Koss’ challenges to the substantive reasonableness of her sentence
fail.
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to her within-Guidelines sentence. See United States v. Ruiz, 621 F.3d 390,
398 (5th Cir. 2010) (per curiam) (“A defendant’s disagreement with the
propriety of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence.”).
If anything, Koss’ mitigation arguments related to her medical uses for
marijuana fail to account for the “totality of the circumstances” surrounding
the charged offenses. See Gall, 552 U.S. at 51 (noting that the review of a
sentence imposed for substantive reasonableness must “take into account the
totality of the circumstances”). Beyond detailing Koss’ history with medical
marijuana, the sentencing evidence also established that the charged
conspiracy involved the interstate transfer and subsequent distribution of
large quantities of high-grade marijuana and that Koss facilitated this drug
operation to some extent by acting as a bookkeeper for one of the main
conspirators and, at times, personally distributing marijuana. Because Koss
has failed to rebut the presumption of reasonableness that attaches to her
within-Guidelines sentence, and because Koss’ arguments fail to account for
the totality of the circumstances surrounding the charged offenses, we
conclude that the district court did not abuse its discretion in sentencing Koss
to the low end of the applicable Guidelines-sentencing range. Accordingly, we
reject Koss’ challenges to the substantive reasonableness of her sentence.
II.
Procedural and substantive challenges aside, Koss contends that the
listing of THC in the Drug Equivalency Table for Schedule I Marijuana, see
USSG § 2D1.1, comment. (n.8(D)), is ambiguous such that the rule of lenity
should apply. In support, Koss reasserts that neither federal statutes nor the
Sentencing Guidelines provide a qualifying definition of THC and that this lack
of a qualifying definition presents an ambiguity that should be resolved in her
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favor. Koss also more generally reasserts that based on the “scheme” of the
Guidelines, it is at least ambiguous whether the Sentencing Commission
intended to limit use of the 1:167 gram ratio based on considerations of the
purity or concentration of THC in a mixture or substance.
We review Koss’ constitutional claim that the rule of lenity is applicable
de novo. See United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001) (per
curiam). “The rule-of-lenity fosters the constitutional due-process principle
‘that no individual be forced to speculate, at peril of indictment, whether his
conduct is prohibited.’” Id. (quoting Dunn v. United States, 442 U.S. 100, 112
(1979)). The rule “applies only when, after consulting traditional canons of
statutory construction,” this court is left with an ambiguous statute. Id.(quoting United States v. Shabani, 513 U.S. 10, 17 (1994)).
In interpreting the Guidelines, this court applies “the ordinary rules of
statutory construction.” United States v. Serfass, 684 F.3d 548, 551 (5th Cir.
2012). If “the language of the guideline is unambiguous, the plain meaning of
that language is controlling unless it creates an absurd result.” Id. Only where
that language is ambiguous does the rule of lenity apply and require that the
ambiguity be resolved in favor of a criminal defendant. Id.We reject Koss’ first lenity argument—that neither federal statutes nor
the Guidelines define THC, which creates a problem of “definitional
ambiguity”—for the same reasons previously discussed in light of the statutory
definition of THC at 21 C.F.R. §1308.11(d)(31). For the reasons explained
herein, we reject Koss’ second argument related to the “scheme” of the
Guidelines because the plain language of § 2D1.1 and its commentary is clear,
unambiguous, and makes no mention of purity or concentration as requisite
considerations before the 1:167 gram ratio can be applied to mixtures or
substances containing a detectable amount of THC.
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As we meticulously set forth above, § 2D1.1 and its commentary provide
that when determining the total drug quantity attributable to a defendant,
courts should consider the entire weight of a mixture or substance containing
a detectable amount of a controlled substance listed in the Drug Quantity
Table or one of the corresponding Drug Equivalency Tables. If that mixture or
substance contains a detectable amount of THC, § 2D1.1 and its commentary
provide that the entire weight of that mixture or substance is to be converted
to its marijuana equivalent using a 1:167 gram ratio. This language is plain,
unambiguous, and makes no mention of THC concentration or purity as
relevant considerations. Thus, the rule of lenity and Koss’ novel arguments
related to the “scheme” of the Guidelines are of no moment. See United States
v. Monjaras-Castaneda, 190 F.3d 326, 330 (5th Cir. 1999) (holding that “use of
the rule of lenity is not warranted” where the language of the Guidelines is
plain).
Nor can we say that following the plain language of the Guidelines in
this case, which leads to an application of the 1:167 gram ratio to the marijuana
butter and the brown chunky substance, leads to an absurd result. See Serfass,
684 F.3d at 551–52 (noting that, under traditional canons of statutory
construction, the plain language of the Guidelines controls “unless it creates
an absurd result”). Indeed, the facts of this case, particularly the
circumstances surrounding the marijuana butter, highlight why the
Sentencing Commission would have sound reasons not to limit the reach of the
1:167 gram ratio based on considerations of purity. It could be difficult for the
Guidelines to provide individualized guidance for all marijuana byproducts
and edibles, the components of which may be unknown, not readily testable,
and indistinguishable from a carrier medium. The Sentencing Commission
could thus reasonably intend to punish those who combine THC—irrespective
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of its origin, i.e., organic THC stripped from marijuana, or synthetic THC
created in laboratory-like circumstances—with carrier mediums to make large
quantities of marijuana-containing products harshly without requiring an
inquiry into the purity of THC in the resulting product. Such inflexibility does
not create an absurd result and, instead, is at least one rational deterrent to
criminal activity involving edibles that contain a psychoactive ingredient.
This is not to say that following the plain language of the Guidelines in
this case does not lead to a harsh result. As Koss repeatedly urged at
sentencing, we recognize the harshness that results from application of the
1:167 gram ratio, which is the stiffest penalty in the Drug Equivalency Table
for Schedule I Marijuana, to homemade marijuana-edibles like the marijuana
butter involved in the offenses with which Koss was charged. But, harshness
without ambiguity does not require application of the rule of lenity, nor should
it trigger an analysis of the Guidelines’ scientific bases and empirical
precision. 8 Cf. Albernaz v. United States, 450 U.S. 333, 342 (1981) (“The rule
[of lenity] comes into operation at the end of the process of construing what
8 See United States v. Malone, 809 F.3d 251, 258 (5th Cir. 2015) (“Even though both
experts testified that the 1:167 ratio [for converting THC into marijuana] has no scientific
basis, this Court has squarely held that district courts are not required to engage in a piece-
by-piece analysis of the empirical grounding behind each part of the sentencing guidelines
and ignore those parts that do not pass empirical muster. We fully agree . . . that a rule to
the contrary would render sentencing hearings . . . unmanageable, as the focus shifts from
the defendant’s conduct to the legislative history of the guidelines. As we have said before,
empirically based or not, the Guidelines remain the Guidelines. It is for the Commission to
alter or amend them.” (internal alteration and quotation marks omitted)). In Malone we
dealt with, inter alia, two defendants’ request that the district court exercise its discretion to
reject the 1:167 gram ratio on policy grounds under Kimbrough v. United States, 552 U.S. 85(2007). See Malone, 809 F.3d at 255, 258–63. Here, Koss made no request that the district
court depart or vary from the Guidelines-range for any reason; instead, Koss couched her
challenges to the district court’s reliance on the 1:167 gram ratio in terms of the factual and
legal arguments discussed herein.
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Congress has expressed, not at the beginning as an overriding consideration of
being lenient to wrongdoers.” (internal quotation marks and citation omitted)).
The language of § 2D1.1 and its commentary is clear and unambiguous in
applying the 1:167 gram ratio to marijuana-edibles like the marijuana butter
that are mixtures or substances containing a detectable amount of THC.
Unless and until the Sentencing Commission finds it appropriate to punish
marijuana-edibles less harshly, this unambiguous language controls
regardless of the harshness of resulting sentences.
Koss argues that ambiguity in the Drug Equivalency Table for Schedule
I Marijuana is apparent if, again, one accepts her assertion that the Guidelines
contemplate harsher punishments for substances containing more potent or
concentrated controlled substances. Koss extends this assertion by arguing
that, because the 1:167 gram ratio for THC is the harshest penalty in the
Schedule I Marijuana Table, the only rational reading of the Table is that
application of the 1:167 gram ratio is only appropriate where there is evidence
that a mixture or substance contains a high concentration or purity of THC.
This argument fails for several reasons. First, as we mention above,
harshness, alone, is not the controlling consideration for purposes of our rule
of lenity analysis. Second, and as previously mentioned, Koss has pointed to
no authority, from our case law or the Guidelines themselves, suggesting that
the Schedule I Marijuana Table contemplates quantification of purity as a
delineating factor between the conversion ratios authorized there. That the
Guidelines expressly provide for purity as a controlling factor in the context of
other substances, see USSG § 2D1.1(c), (Notes to Drug Quantity Table (B)),
decidedly undercuts this argument and indicates the Sentencing Commission’s
awareness of the need to provide for purity considerations when it deems
appropriate. Cf. Serfass, 684 F.3d at 552 (holding that “[t]he inclusion of a . . .
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requirement in one portion of the guidelines confirms that its omission from
another portion of the same guideline was intentional”). Accordingly, this
argument does not give rise to an ambiguity that requires this court to apply
the rule of lenity to the benefit of Koss.
Finally, Koss argues that applying the rule of lenity in this case is
appropriate under United States v. Bowen, 127 F.3d 9 (1st Cir. 1997), a case
addressing whether the term “hashish oil” in USSG § 2D1.1 was
unconstitutionally ambiguous before the 1995 amendments to the Guidelines
added the definition that now appears at Note (I) to the Drug Quantity Table.
See USSG § 2D1.1(c), (Notes to Drug Quantity Table (I)). The facts and
circumstances in Bowen are materially distinguishable from those of this case,
and these distinctions cut against applying the rule of lenity here.
Two key features in Bowen drove the First Circuit’s decision that lenity
was required: first, federal statutes and the Sentencing Guidelines provided
no definition of hashish oil at the time of the defendants’ conduct; and second,
each party tendered experts who attempted to bridge this definitional gap by
testifying as to reasonable definitions of the term hashish oil in connection with
the “black, tar-like” substance at issue. Bowen, 127 F.3d at 13–15. In light of
these two features, and based on the rule of lenity, the First Circuit held that
the sentencing court erred in applying a broader definition of hashish oil, as
opposed to a narrower definition that would have reduced the defendants’
sentences. Id. at 14–15.
Neither of these Bowen drivers is present here. First, as we have
previously mentioned several times, the Code of Federal Regulations defines
the term “THC” in detail. See 21 C.F.R. § 1308.11(d)(31). Thus, unlike the
situation in Bowen, the district court here was not faced with a federally
undefined term from the Drug Equivalency Table for Schedule I Marijuana;
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rather, as we set out above, the court was faced with lab reports that were
sufficient to support application of the 1:167 gram ratio and, because they were
unchallenged by Koss, cut off any further exploration into the legal definition
of THC as that definition could relate to the contents of the marijuana butter
and the brown chunky substance. Second, and similarly, the battle of the
experts highlighting the First Circuit’s analysis in Bowen is noticeably missing
from the sentencing record in this case. Koss offered no evidence, including
lay or expert testimony, supporting her novel theories as to the PSR’s
mischaracterization and mistreatment of the marijuana butter and the brown
chunky substance. Faced with no challenge to the lab reports, and no evidence
contradicting the PSR’s characterization of the substances at issue, we cannot
conclude that applying the rule of lenity is required in this case based on
Bowen.
In sum, despite Koss’ harshness arguments and novel theory related to
the scheme of the Guidelines, § 2D1.1’s directives regarding the use of the
1:167 gram ratio to calculate the marijuana equivalency of mixtures or
substances containing a detectable amount of THC are clear and unambiguous.
In the absence of an ambiguity, we reject Koss’ arguments that the rule of
lenity is applicable.
III.
Having carefully reviewed the record and Koss’ arguments on appeal, we
conclude that Koss’ sentence, which was admittedly driven by the PSR’s
treatment of the marijuana butter and the brown chunky substance, was
procedurally and substantively sound in light of the evidence that was
available at sentencing. Because we also find no ambiguity in the controlling
portions of the Guidelines that would warrant application of the rule of lenity,
we AFFIRM.
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