United States v. Wilson ( 2023 )

Case: 22-50857 Document: 00516958320 Page: 1 Date Filed: 11/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 6, 2023
No. 22-50857
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Shannon Wilson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:22-CR-78-1
______________________________
Before Wiener, Willett, and Douglas, Circuit Judges.
Per Curiam:*
Shannon Wilson pleaded guilty to being a felon in possession of a
firearm. Because Wilson possessed the firearm in connection with a drug-
trafficking offense, the Sentencing Guidelines required the district court to
sentence him under the Guideline for the drug offense, which it did. Using
the gross weight of the seized methamphetamine pills, the district court
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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sentenced Wilson to 110 months’ imprisonment and 3 years’ supervised
release.
On appeal, Wilson challenges the district court’s drug-quantity
calculation. He says that the district court erroneously calculated his
sentence by using the gross weight of the methamphetamine pills rather than
estimating the weight of the actual methamphetamine in each pill. We
disagree and affirm.
I
Wilson, known to police as a suspect in several firearms-related
crimes, was pulled over for driving without a valid driver’s license. During
the stop, police discovered a loaded 9-millimeter pistol and a large bag of
orange pills. The bag had 954 whole pills, 33 partial pills, and orange
powder—totaling 361.93 grams. Laboratory analysis later confirmed that the
pills contained methamphetamine.
Wilson was charged with and pleaded guilty to one count of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).1 Because
he possessed the firearm in connection with a drug-trafficking offense, the
presentence investigation report (PSR) applied § 2D1.1 of the Sentencing
Guidelines to calculate his sentence.2 Using the gross weight of the pills—
361.93 grams—the PSR assigned Wilson a base offense level of 28. See
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1
The Government did not pursue a drug charge.
2
Generally, § 2K2.1 of the Sentencing Guidelines applies to § 922(g)(1) felon-in-
possession offenses. See U.S.S.G. App. A. But when a defendant uses or possesses the
firearm in connection with the commission of another offense, a cross-reference to § 2X1.1
applies “if the resulting offense level is greater than” the one appliable under § 2k2.1. Id.
§ 2K2.1(c)(1)(A). The base offense level under § 2X1.1 is the “base offense level from the
guideline for the substantive offense, plus any adjustments from such guideline.” Id.
§ 2X1.1(a). Wilson does not challenge the application of the cross-reference or that his
firearm offense was connected to an 18 U.S.C. § 841(a)(1) drug-trafficking offense.
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U.S.S.G. § 2D1.1(a)(5), (c)(6). The PSR then added two levels for Wilson’s
gun possession, see id. § 2D1.1(b)(1), and deducted three levels for Wilson’s
acceptance of responsibility, bringing his total offense level to 27. Wilson’s
criminal history of VI produced a Guidelines range of 130 to 162 months’
imprisonment. But because the statutory maximum punishment was 120
months, the Guidelines recommended that sentence.
Wilson filed a written objection to the PSR, challenging its calculation
of his base offense level. He argued that, because the seized
methamphetamine was in pill form, his sentence should have been calculated
using the Typical Weight Per Unit Table in application note 9 rather than the
Drug Quantity Table in § 2D1.1(c). Had the PSR applied the Per Unit Table,
Wilson’s total offense level would have been 21, producing a Guidelines
range of 77 to 96 months.3
Wilson also filed a sentencing memorandum. He reiterated his
objection to the PSR and alternatively requested a downward variance. The
Government filed a written response, arguing that the PSR correctly
calculated Wilson’s sentence using the Drug Quantity Table. It reasoned
that, because the pills had been weighed, the Per Unit Table did not apply to
Wilson’s case because the table applies only when the weight of the
controlled substance is unknown. Wilson renewed his objection at
sentencing.
The district court overruled Wilson’s objection but granted a
downward variance, imposing a below-Guidelines sentence of 110 months of
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3
The Per Unit Table assigns actual methamphetamine an estimated weight of 5
milligrams per pill, capsule, or dose. U.S.S.G. § 2D1.1, cmt. n.9. Five milligrams,
multiplied by 954 seized pills is 4.8 grams of pure methamphetamine, producing a base
offense level of 22. Id. § 2D1.1(c)(9).
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imprisonment followed by 3 years of supervised release. Wilson timely
appealed his sentence.
II
We review the district court’s factual findings for clear error and its
interpretation and application of the sentencing guidelines de novo. United
States v. Ferris, 52 F.4th 235, 239 (5th Cir. 2022).
III
Wilson’s challenge requires us to interpret the Guidelines’ text. He
argues that the plain language of application note 9 specifies that the court
must use the Per Unit Table when a defendant is sentenced for possessing
methamphetamine in pill form.
We apply the typical rules of statutory interpretation to the
Sentencing Guidelines. United States v. Stanford, 883 F.3d 500, 511 (5th Cir.
2018). We start with the Guideline’s text. Id. “If the language is
unambiguous, and does not lead to an ‘absurd result,’ [our] inquiry begins
and ends with the plain meaning of that language.” Id. (citing United States
v. Koss, 812 F.3d 460, 473 (5th Cir. 2016)). Like statutes, we read the
Guidelines as a whole “since the meaning of statutory language, plain or not,
depends on context.” Id. (quoting United States v. Hoang, 636 F.3d 677, 681
(5th Cir. 2011)). “[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the Constitution or a
federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993); accord United
States v. Cortez-Gonzalez, 929 F.3d 200, 204 (5th Cir. 2019); United States v.
Choulat, 75 F.4th 489, 494 (5th Cir. 2023).
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A
First, some background. For drug crimes, a defendant’s base offense
level is generally calculated by referencing the Drug Quantity Table in
§ 2D1.1(c). U.S.S.G. § 2D1.1(a)(5). The Drug Quantity Table assigns
offense levels based on the type and weight of the drugs involved. Id.
§ 2D1.1(c)(1)–(17). Except when “otherwise specified,” the table uses “the
entire weight of any mixture or substance containing a detectable amount of
the controlled substance.” Id. § 2D1.1(c), n.(A).
As to methamphetamine, the table distinguishes between
“methamphetamine (actual)”—which is the weight of the
methamphetamine itself—and the mixture or substance containing
methamphetamine. Id. § 2D1.1(c), n.(B). “In the case of a mixture or
substance containing . . . methamphetamine,” the Guidelines directs courts
to “use the offense level determined by the entire weight of the mixture or
substance, or the offense level determined by the weight of
the . . . methamphetamine (actual), whichever is greater.” Id.
This appeal is about the relationship between § 2D1.1(c) and
application note 9. That note applies when “the number of doses, pills, or
capsules” is known but “the weight of the controlled substance” is not. Id.
§ 2D1.1, cmt. n.9. In those cases, application note 9 directs courts to
“multiply the number of doses, pills, or capsules by the typical weight per
dose” in the Per Unit Table “to estimate the total weight of the controlled
substance.” Id. But application note 9 cautions courts not to use the “table if
any more reliable estimate of the total weight is available from case-specific
information.” Id. And, for the substances marked with an asterisk, including
methamphetamine, the table further warns that it “provides a very
conservative estimate of the total weight.” Id. § 2D1.1, cmt. nn.9 & 9*.
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B
Wilson acknowledges that the general rule for calculating drug
quantity under § 2D1.1(c) is to use the weight of the mixture or substance
containing a detectable amount of the controlled substance. But he contends
that application note 9 creates an exception to this general rule. He argues
that when, as here, methamphetamine is in pill form, § 2D1.1(c) does not
apply at all because the Per Unit Table in application note 9 estimates the
quantity of actual methamphetamine rather than the mixture or substance
containing methamphetamine. See id. § 2D1.1, cmt. n.9. Otherwise, he
argues, application note 9 would be superfluous. We disagree.
1
Application Note 9 is not an exception to the general mixture-or-
substance rule. First, by its plain terms, application note 9 applies only when
the “weight of the controlled substance” is unknown. Id. That is not the case
here.
Wilson tries to get around this fact by arguing that the first sentence
of application note 9 redefines “weight of the controlled substance” to mean
the amount of the actual controlled substance. Recall, the first sentence of
application note 9 says, “If the number of doses, pills, or capsules but not the
weight of the controlled substance is known, multiply the number of doses, pills,
or capsules by the typical weight per dose in the table below to estimate the
total weight of the controlled substance.” Id. (emphasis added).
In support of this argument, Wilson says that we must use the
definition of “controlled substance” from 21 U.S.C. § 802(6). That section
defines “controlled substance” as “a drug or other substance . . . included in
schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C. § 802(6).
But this argument ignores Note A to the Drug Quantity Table, which
explains that “the weight of a controlled substance set forth in the table refers
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to the entire weight of any mixture or substance containing a detectable
amount of the controlled substance.” U.S.S.G. § 2D1.1(c), n.(A). We must
construe application note 9 in light of this rule because application note 9 is
not part of the Guidelines. “Like all other application notes, it serves to
‘interpret the guideline[s] or explain how [they are] to be applied.’” United
States v. Shabazz, 933 F.2d 1029, 1032 (D.C. Cir. 1991) (alteration in original)
(quoting U.S.S.G. § 1B1.7).
Additionally, the Per Unit Table itself follows the general mixture-or-
substance rule. For each drug, the table provides the estimated typical
mixture weight per pill. The table departs from this general rule only for
seven controlled substances marked with an asterisk. For those marked
substances, “the weight per unit shown is the weight of the actual controlled
substance, and not generally the weight of the mixture or substance
containing the controlled substance.” U.S.S.G. § 2D1.1, cmt. n.9.
True, methamphetamine is marked with an asterisk, which means that
the table estimates the weight of the actual methamphetamine per pill. But
recall that the Drug Quantity Table provides different offense levels for
methamphetamine based on mixture-or-substance weight and
methamphetamine based on actual weight. Id. § 2D.1.1(c). Application
note 9 merely expresses the Guideline’s preference that, when the mixture
weight of methamphetamine is unknown, courts must estimate the total
weight based on the actual weight of the methamphetamine per pill. As one
of our sister circuits explained, this “simply reflects the Commission’s
judgment that the per-unit weight of the relevant mixture or substance
[containing methamphetamine] cannot be estimated with sufficient precision
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so as to justify using the preferred approach” of using mixture weight.4 See
Shabazz, 933 F.2d at 1034.
2
Nor is application note 9 superfluous. For it to apply, two conditions
must be met: (1) the weight of the pills is unknown and (2) no more reliable
estimate is available. See U.S.S.G. § 2D1.1, cmt. n.9. Neither is met here.
First, as the Government notes, Wilson relies on an assumption not
true in every case—that all pills constituting relevant conduct have been
seized and weighed. In many cases, the overall drug quantity attributable to a
defendant is not based on seized drugs alone. Id. § 2D1.1, cmt. n.5 (“Types
and quantities of drugs not specified in the count of conviction may be
considered in determining the offense level.”). Application note 5 directs
courts to approximate drug quantities using other evidence when “there is
no drug seizure[,] or the amount seized does not reflect the scale of the
offense.” 5 Id.; see also United States v. Valdez, 453 F.3d 252, 267 (5th Cir.
2006) (“The court may extrapolate the quantity from any information that
has sufficient indicia of reliability to support its probable accuracy, including
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4
Wilson does not argue, nor can he, that anything in § 2D1.1(c) requires courts to
use the actual weight of methamphetamine when the mixture weight is available. Instead,
when there is evidence of mixture weight and actual weight, the court must use “whichever
is greater.” U.S.S.G. § 2D1.1(c), n.(B).
5
Wilson contends that the connection to application note 5 is “untenable” because
the notes do not work together or state that they work in step. But we decline his invitation
to read application note 9 in isolation. We must read statutory language in context. Chamber
of Com. of U.S. of Am. v. U.S. Dep’t of Lab., 885 F.3d 360, 372 (5th Cir. 2018) (“[S]tatutory
language cannot be construed in a vacuum. It is a fundamental canon of statutory
construction that the words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.” (alteration in original) (quoting Davis v. Mich.
Dep’t of Treasury, 489 U.S. 803, 809, (1989))).
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a probation officer’s testimony, a policeman’s approximation of unrecovered
drugs, and even hearsay.” (internal quotation marks and citation omitted)).
And second, application note 9 prohibits the use of the Per Unit Table
“if any more reliable estimate of the total weight is available from case-
specific information.” U.S.S.G. § 2D1.1, cmt. n.9. Our sister circuits agree
that evidence of mixture weight—when available—is more reliable than an
estimate from the Per Unit Table. See, e.g., United States v. Roche, 415 F.3d
614, 619 (7th Cir. 2005) (holding that the district court properly estimated
drug weight based on the actual weight of recovered ecstasy tablets because
“the defendant is responsible for the weight of the whole pill, not just the
active ingredient”); United States v. Tracy, 989 F.2d 1279, 1287 (1st Cir.
1993) (rejecting the defendant’s argument that the court should have used
the Per Unit Table because “the table produces conservative estimates that,
among other things, do not account for the weight of the ‘mixture or
substance’ that should be included in calculating the amount of LSD for
sentencing”); United States v. Martz, 964 F.2d 787, 790 (8th Cir. 1992)
(holding that the district court did not err by using an estimate from the
lightest known dose instead of the Per Unit Table). In this case, there is no
need to rely on an estimate because the weight of the pills is known and
undisputed.
Wilson resists this conclusion by relying heavily on our decision in
United States v. Tushnet, 526 F.3d 823 (5th Cir. 2008). But Tushnet is not to
the contrary. In Tushnet, the defendant accepted responsibility for 45,331
MDMA pills. Id. at 823. The DEA tested 5,000 of those pills and determined
that each pill contained 100 milligrams of actual MDMA. Id. at 824. But the
weight of the other 40,000 pills was unknown. In calculating Tushnet’s
sentence, the district court consulted the Per Unit Table and used the
presumed typical weight of 250 milligrams per pill rather than the 100-
milligram figure. Id. We affirmed.
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Tushnet does not help Wilson. For one, unlike in Tushnet, the weight
of all the pills that Wilson is responsible for is known, so there is no reason to
consult application note 9 for an estimate. And, contrary to Wilson’s
assertion, Tushnet did not establish a general rule that courts must use the
table when pills are involved. Rather, we held that the district court did not
err by using the table in that case. True, Tushnet concerned MDMA, which
is not asterisked in the Per Unit Table. For Tushnet’s sentence, this meant
that the weight of the actual MDMA was irrelevant. But, as we previously
explained, it does not help Wilson that methamphetamine is asterisked. And
here, even if the court estimated the amount of actual methamphetamine
using the table, it would still have to use the mixture weight because that
measure produces a higher offense level. U.S.S.G. § 2D1.1(c), n.(B) (“In the
case of a mixture or substance containing . . . methamphetamine,” the court
must “use the offense level determined by the entire weight of the mixture
or substance, or the offense level determined by the weight of
the . . . methamphetamine (actual), whichever is greater.”).
IV
Application note 9 does not apply to Wilson’s case—the weight of
Wilson’s methamphetamine pills was known and more reliable than the
hypothetical weight from the Per Unit Table. Because the plain language of
application note 9 does not create an exception to the general mixture-or-
substance rule, the district court did not err by sentencing Wilson based on
the gross weight of his methamphetamine pills.
Accordingly, we AFFIRM.
10