United States District Court, D. Hawaii
ORDER DETERMINING THAT, FOR PURPOSES OF CALCULATING THE SENTENCING GUIDELINE RANGE, METHCATHINONE IS THE LISTED DRUG MOST CLOSELY RELATED TO ETHYLONE
SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE
This court is asked to determine which drug listed in the Drug Equivalency Tables of § 2D1.1 of the United States Sentencing Guidelines is most closely related to ethylone, a drug not mentioned in the Sentencing Guidelines. Having heard from dueling scientists during two days of testimony, this court agrees with Defendant Austin-Ernest Kaholo Homes that methcathinone is the listed drug most closely related to ethylone.
This conclusion relates solely to the calculation of the guideline range applicable in this case, not to whether, once the guideline range has been determined, there may or may not be good reasons for this court to vary from that guideline range, a matter the court will address at an upcoming hearing. That is, this court is not here addressing any challenge to how the Sentencing Guidelines characterize methcathinone or any argument as to how this court should ultimately treat ethylone, although the court fully expects such challenges and arguments to be raised in connection with a defense request for a variance from the guideline range.
I. BACKGROUND INFORMATION
Pursuant to a plea agreement, Holmes pled guilty to possessing ethylone with intent to distribute it, possessing a semi-automatic pistol while being an unlawful user of a controlled substance, and possessing methamphetamine. The present order resolves a dispute between Holmes and the Government over the Base Offense Level applicable under the Sentencing Guidelines to the charge of possessing ethylone with intent to distribute it.
The Indictment filed in Criminal No. 15-00245 describes ethylone as going by the street names “bath salts” and “molly” and as being “a positional isomer of butylone, a Schedule 1 controlled substance.” There is no dispute that ethylone, as an isomer of butylone, is indeed a Schedule 1 controlled substance. See 21 C.F.R. § 1308 (temporary placement by DEA of 10 synthetic cathinones, including butylone, into Schedule 1, effective March 7, 2014).
As part of its consideration of factors affecting what sentence to impose, this court must calculate the applicable guideline range provided for by the United States Sentencing Guidelines. See 18 U.S.C. § 3553(a)(4)(A). Under the Sentencing Guidelines, the Base Offense Level applicable to a drug charge turns on the type and amount of drug involved, as set forth in § 2D1.1 of the Sentencing Guidelines. While § 2D1.1 assigns Base Offense Levels to a number of controlled substances, neither butylone nor ethylone is mentioned in § 2D1.1.
Application Note 6 to § 2D1.1 sets forth a procedure for determining the Base Offense Level “[i]n the case of a controlled substance that is not specifically referenced in this guideline.” The court is directed to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline.” Drug Equivalency Tables are included in Application Note 8(D) to § 2D1.1. Those tables list a variety of drugs, providing with respect to each listed drug a corresponding amount of marihuana. For example, 1 gram of heroin is listed as equivalent to 1 kilogram of marijuana, and 1 gram of cocaine is listed as equivalent to 200 grams of marihuana.
Application Note 6 outlines three factors that “the court shall, to the extent practicable, consider” in determining “the most closely related controlled substance”:
(A) Whether the controlled substance not referenced in this guideline has a chemical structure that is substantially similar to a controlled substance referenced in this guideline.
(B) Whether the controlled substance not referenced in this guideline has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance referenced in this guideline.
(C) Whether 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 a controlled substance referenced in this guideline.
The Government has taken the position that this court should rely on testimony by the Government’s two expert witnesses to conclude that, considering the three factors listed in Application Note 6, the controlled substance listed in the Drug Equivalency Tables that is most closely related to ethylone is 3, 4-methylenedioxy-N-ethylamphetamine (“MDEA”), 1 gram of which is listed as equivalent to 500 grams of marijuana (the same ratio provided for MDMA). If the court accepts the Government’s position, the guideline range will be 57 to 71 months.
Relying on two defense expert witnesses, Holmes counters that the listed substance most closely related to ethylone is methcathinone, which has a 1:380 equivalency. If this court adopts Holmes’s position, the Base Offense Level will be 2 levels below that urged by the Government, resulting in a guideline range of 46-71 months.
The Probation Office preliminarily accepted the Government’s position and prepared a Presentence Investigation Report that treated MDEA as the listed drug most closely related to ethylone for purposes of calculating the guideline range. However, at that time, the Probation Office did not have Holmes’s challenge to that position. Holmes had originally indicated that, while MDEA was correctly used for guideline calculation purposes, he planned to seek a variance by arguing that the Sentencing Commission’s 1:500 ratio for MDEA was not empirically sound. Holmes subsequently amended his position and challenged the guideline calculation. The Probation Office is now awaiting this court’s ruling to see whether it should redo its guideline calculations.
This court heard from competing witnesses about the chemical structure of ethylone. The Government called Dr. Daniel Willenbring, who has a Ph.D. in organic chemistry and is a drug science specialist with the Drug Enforcement Administration based in Virginia. Holmes called Dr. Mark Hagadone, who has a Ph.D. in organic chemistry and who runs a chemistry consultant’s business in Honolulu, Hawaii.
Different witnesses testified about the effects of using ethylone. The Government called Dr. Cassandra Prioleau, who has a Ph.D. in pharmacology and is a drug science specialist with the DEA in Virginia. Dr. Prioleau declined to opine about the potency of ethylone. Holmes called Dr. John Halpern, M.D., who is an assistant professor of psychiatry at Harvard Medical School and is the psychiatrist-in-charge of Coverage, Alcohol and Drug Abuse Treatment Programs at McLean Hospital in Belmont, Massachusetts. Dr. Halpern testified about the effects as well as the potency of ethylone.
The three out-of-state expert witnesses (Dr. Willenbring, Dr. Prioleau, and Dr. Halpern) have experience testifying about the Drug Equivalency Tables. See, e.g., United States v. Brey, 627 Fed. App’x 775 (11th Cir. 2015) (referring to testimony by Drs. Willenbring and Prioleau that listed drug most closely related to ethylone is MDEA); United States v. Marte, 586 Fed. App’x 574 (11th Cir. 2014) (noting testimony by Dr. Prioleau in district court that methylone was most closely related to MDMA); United States v. Ketchen, 2015 WL 3649486 (D. Me. June 11, 2015)(referring to grand jury testimony by Dr. Prioleau comparing effects of using methcathinone to effects of using MDPV); United States v. McCarthy, 2011 WL 1991146 (S.D.N.Y. May 19, 2011) (summarizing testimony by Dr. Halpern in support of variance from guideline range based on alleged flaws in Sentencing Commission’s setting of 1:500 MDMA-to-marihuana ratio). See also ECF No. 67-2 (Government’s submission of transcript of testimony about MDMA by Dr. Halpern in United States v. Thammavongsa, Case No. 2:13-cr-255-JAD-GWF (D. Nev. Dec. 3, 2014)).
In the present case, all four expert witnesses were extensively cross-examined after their detailed direct examinations. Holmes’s vigorous opposition to the Government’s expert witnesses’ testimony distinguishes this case from United States v. Brey, which involved consideration of the three factors in Application Note 6 with respect to ethylone, the very drug in issue here. The Eleventh Circuit in Brey affirmed the district court’s conclusion that MDEA, with its 1:500 ratio, was the listed drug most closely related to ethylone. As the Eleventh Circuit noted, the district court was not presented with contrary evidence: “The government ...