The opinion of the court was delivered by: Reagan, District Judge:
COURT'S MEMORANDUM REGARDING SENTENCING OF DEFENDANT THOMPSON
Two Defendants (John Thompson and Michael Gabre-Kidan) were charged in the above-captioned case with, inter alia, conspiring to distribute MDMA (methylenedioxymethamphetamine), commonly referred to as "ecstasy," a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and § 846. Both entered guilty pleas. Defendant Gabre-Kidan was sentenced on February 1, 2012, with judgment was entered accordingly. Delays were encountered in transferring Defendant Thompson to this District from the Western District of Washington.
Ultimately, in January 2012, Thompson appeared before the undersigned District Judge and pled guilty to one count of conspiracy to distribute MDMA and four counts of distributing MDMA. Counsel thoroughly briefed the substantial issues relative to Thompson's sentencing. At the conclusion of the May 18, 2012 sentencing hearing, the undersigned Judge sentenced Thompson to a 46-month term of imprisonment on each of the five counts (the terms to run concurrently), 3 years of supervised release, a $500 total fine ($100 on each of the five counts), and a $500 special assessment ($100 on each of the five counts).
At the May 18th hearing, the Court orally delineated the reasons supporting the sentence imposed, including consideration of all the factors under 18 U.S.C. § 3553(a). As was noted on the record, criminal prosecutions involving MDMA distribution conspiracies are relatively rare in the experience of the undersigned Judge. This memorandum is submitted to further explain the reasons for the sentence given to Defendant Thompson, particularly the rationale for declining defense counsel's request to declare the applicable Guideline unsound and unworthy of application.
In the case at bar, the central issue briefed by counsel and resolved by the Court was the appropriate marijuana-to-MDMA ratio, i.e., the drug equivalency table found at U.S.S.G. § 2D1.1.*fn1 Defense counsel assert that the current 500:1 marijuana-to-MDMA guideline ratio is not grounded in empirically sound science, is flawed, and should be rejected by the Court (pushing for a 100:1 ratio instead).
This echoes arguments raised several years ago in crack cocaine cases, culminating in Kimbrough v. United States, 552 U.S. 85 (2007) and its progeny, which rejected the disparity between crack cocaine sentences and powder cocaine sentences, allowing district courts to vary from the crack cocaine Sentencing Guideline based on policy disagreements. See, e.g., Spears v. United States, 555 U.S. 261, 264-66 (2009).
In the instant case, defense counsel contends that the applicable sentencing guideline is not entitled to the deference generally given to guidelines in the two-step post-Booker sentencing process. Deference is not warranted, the argument goes, because the MDMA guideline was not adopted in reliance on the careful thought, extensive research, sound empirical evidence, and expertise typically exercised by the United States Sentencing Commission. Historical perspective aids the Court's analysis of this argument.
Before 2001, the United States Sentencing Guidelines stated that the marijuana-to-MDMA ratio was 35:1. That changed when Congress passed the Ecstasy Anti-Proliferation Act of 2000, Pub. L. No. 106-310, §§ 3663(a), 3664. The Act directed the Sentencing Commission to review and increase penalties for offenses related to manufacturing or trafficking MDMA and to submit a report to Congress containing the resulting amendments. The Commission's report (sometimes referred to as the "Ecstasy Report") concluded that penalties for MDMA offenses should be more severe than penalties for powder cocaine (which has a 200:1 marijuana equivalency) but less severe than penalties for heroin (which has a 1000:1 marijuana equivalency). The Commission concluded that 500:1 was the appropriate marijuana equivalency for MDMA (500 grams of marijuana deemed the equivalent of 1 gram of MDMA).
The Commission reasoned that MDMA is less harmful, and should be punished less harshly, than heroin because: (1) there are many more heroin cases than MDMA cases in the federal system; (2) heroin is more addictive than MDMA; (3) heroin results in many more emergency room visits and deaths than MDMA due to the fact heroin is usually injected, whereas MDMA is taken orally; (4) heroin has more violence associated with its users and distributors than does MDMA; and (5) heroin, usually injected, causes greater secondary health effects, like the spread of HIV and hepatitis.
The Commission found that MDMA should be treated more harshly than powder cocaine because: (1) unlike powder cocaine, MDMA is neurotoxic; (2) powder cocaine is not aggressively marketed to youth in the same manner as MDMA is marketed; and (3) powder cocaine is only a stimulant, whereas MDMA is both a stimulant and a hallucinogenic.
The Report further reveals that the Commission was concerned with choosing penalty levels that targeted serious and high-level traffickers, providing both sufficient deterrence and incentives for cooperation by offenders. The Commission chose five-year sentences for serious traffickers -- so-called "local distributors" -- those whose conduct involved approximately 800 pills. The Commission imposed ten-year sentences for high-level traffickers -- importers, upper- and middle-level distributors whose offense conduct involved approximately 8,000 pills.
To recap, the Sentencing Commission opted to establish a 500:1 marijuana-to-MDMA ratio. That 500:1 ratio was contained in a temporary amendment to the Sentencing Guidelines that ultimately became permanent and was made retroactively effective as of May 1, 2001. The significantly increased penalties for MDMA offenses were needed, the Commission decided, because of the "unique pharmacological and physiological harm of ecstasy, the fact that the drug is aggressively marketed to and used by youth, and its ...