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U.S. v. FITZGERALD

February 5, 2004.

UNITED STATES OF AMERICA, Plaintiff,
v.
SHANNON FITZGERALD Defendant



The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

MEMORANDUM OPINION AND ORDER

On June 24, 2003, Defendant entered a plea of guilty to a charge that Defendant, beginning in November 2001 and continuing to May 31, 2002, conspired with Co-Defendant, Chad Raby, and with others known and unknown to the Grand Jury, to; knowingly and intentionally possess with the intent to distribute a controlled substance, namely, tablets containing 3, 4 Methylenedioxymethamphetamine (MDMA), a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1); all in violation of 21 U.S.C. § 846. Presently before the Court are issues regarding Defendant's total offense level under the United States Sentencing Guidelines ("U.S.S.G.").

ANALYSIS

  The parties agree to the application of the guidelines in the Presentence Investigation Report, with the exception of the calculation of the base offense level and a reduction for role in the offense. Defendant also filed a motion for a downward departure. Page 2

  Base Offense Level

  Under the 2002 version of the Sentencing Guidelines and the Typical Weight Per Unit Table contained in Application Note 11 of § 2d 1.1, the typical weight of both one pill of MDMA and 3, 4 Methylenedioxyamphetamine ("MDA") is 250 mg. However, the 2002 version of the Guidelines marked the first time that MDMA was specifically listed in this table, which is to be utilized if the number of pills or doses is known but the actual weight of the controlled substance is unknown.

  The 2001 Typical Weight Per Unit Table contained in Application Note 11 of § 2d 1.1 of the 2001 version of the Sentencing Guidelines does not include MDMA. Rather, the Drug Equivalency Table contained in Application Note 10 of § 2D1.1 treats MDMA and MDA equally. MDA is chemically similar to MDMA, and each substance produces a similar effect of the central nervous system. In addition, Amendment 609 of the 2001 guidelines, which addressed the directive of the Ecstasy Anti-Proliferation Act of 2000, directed the Sentencing Commission to increase guideline penalties for any "controlled substance that is marketed as Ecstasy and that has either a chemical structure similar to MDMA or an effect on the central nervous system substantially similar to or greater than MDMA," Under the 2001 Typical Weight Per Unit Table, the typical weight of one pill of MDA is 100 mg.

  The 2002 version of the Sentencing Guidelines went into effect on November 1, 2002. The Defendant's offense conduct was completed as of May 31, 2002. Both parties agree that 810 pills are attributed to Defendant's conduct.

  If the 2002 version of the Sentencing Guidelines is applied, the base level offense is 26. If the 2001 version of the Sentencing Guidelines is applied, the base level offense is 20. Page 3

  The Defendant and the Presentence Investigation Report, in computing the base level offense at 20, rely on the 2001 version of the Sentencing Guidelines, which was in effect at the time the conspiracy was completed. The 2002 version of the Sentencing Guidelines was in effect at the time of the sentencing. The Government, in arguing for a base level offense of 26, claims that it is not clear that MDMA would have been assigned a typical weight per dose of 100 mg had it been included in the 2001 Guidelines.

  The Sentencing Guidelines which are in effect at the time of sentencing apply so long as it does not result in a violation of the ex post facto clause of the United States Constitution. U.S. Sentencing Guidelines Manual §§ 1B1.11(a)-(b)(1). If the defendant is subject to increased punishment by using the Guidelines in effect at the time of sentencing instead of the Guidelines in effect at the date the offense of conviction was committed, the increased punishment would violate the ex post facto clause. See, e.g., United States v. Hall, 212 F.3d 1016, 1023 (7th Cir. 2000).

  Here, Defendant would be subjected to an increased punishment by using the 2002 version of the Sentencing Guidelines; the base offense level would be increased from 20 to 26. The Government has not provided support for the proposition that the 2001 version of the Guidelines would not have assigned a typical weight of 100 mg. To the contrary, MDMA is treated equally to MDA in both the Typical Weight Per Unit Table in the 2002 version of the Sentencing Guidelines and the Drug Equivalency Table in the 2001 version. Accordingly, the 2001 version of the Sentencing Guidelines will be used to compute Defendant's sentence.

  The Government, pursuant to Application Note 11 to U.S.S.G. § 2D1.1, also asserts that because a more reliable estimate of the total weight exists, the Typical Weight Per Unit Table Page 4 should be disregarded. The actual MDMA pills attributed to Defendant are not available for determination of their actual weight. However, the Government contends reliable evidence exists from other pills, which were acquired from Defendant's supplier, John Michael O'Leary, and came from the same supplier in Belgium. These MDMA pills acquired by the Government were not weighed individually but, rather, tested in batches. The average weight per batch ranged from 218 mg to 313 mg. No range of weight is available for all the pills in the aggregate.

  Under the Government's theory, the unrecovered MDMA pills; that are attributed to the Defendant would presumably have the same average weight of as the pills acquired by the Government from Defendant's source, ...


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