United States v. Sythong Thannavong

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0765n.06

No. 12-6099
FILED
UNITED STATES COURT OF APPEALS Aug 16, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
SYTHONG THANNAVONG, ) MIDDLE DISTRICT OF TENNESSEE
)
Defendant-Appellant. )

Before: MOORE and GRIFFIN, Circuit Judges; and SARGUS, District Judge.*

SARGUS, District Judge. Sythong Thannavong (“Appellant”) appeals the sentence of 120

months imprisonment, which the district court imposed, following her plea of guilty to charges of

conspiracy to distribute and possess with intent to distribute methylenedioxymethamphetamine

(“MDMA”). She contends that the district court erred by failing to address her challenge to the

MDMA sentencing guidelines promulgated by the United States Sentencing Commission. Appellant

also asserts that the sentence was both procedurally and substantively unreasonable. For the reasons

that follow, we find no merit to her assignments of error and affirm the sentence imposed by the

district court.

*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 12-6099
United States v. Thannavong

I.

On February 25, 2009, the grand jury returned a one-count indictment charging Appellant

with conspiracy to distribute and possess with intent to distribute MDMA, in violation of 21 U.S.C.

§ 846. Pursuant to a plea agreement, Thannavong pleaded guilty to the single count.

Appellant arranged for the shipment and receipt of twenty parcels of MDMA and marijuana.

She also arranged for wire-transfer of monies to the Fresno, California area to pay for such drugs.

One transfer involved the mailing of $32,000 in drug proceeds. A search warrant was ultimately

executed upon her residence, which revealed a large quantity of marijuana, scales, some MDMA,

and a gun.

The presentence report determined that the relevant conduct consisted of 36,000 MDMA

pills, together with 78 kilograms of marijuana. Under U.S.S.G. § 2D1.1, the quantity of drugs placed

Appellant at an offense level of 34, with an additional two points assessed for possession of a firearm

pursuant to U.S.S.G. § 2D1.1(b)(1).1 In addition, the presentence report included a four-point

enhancement, finding that Appellant was a leader or organizer of a criminal activity involving five

or more persons, as delineated in U.S.S.G. § 3B1.1(a).2 After receiving a three-point reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b), the total offense level computed in

1
Appellant objected to the two-level enhancement for possession of a firearm, but later
withdrew the objection.
2
Appellant objected to the four-point assessment for leadership in a criminal organization.
The district court overruled the objection. Appellant has not assigned error as to this issue.

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United States v. Thannavong

the presentence report was 37. Having no substantial criminal record, her criminal history placed

her in category I.

The statutory maximum available under the offense of conviction was 240 months, which

capped the guidelines range at 210-240 months. The government made a motion for a reduction in

sentence under U.S.S.G. § 5K1.1, given Appellant’s substantial cooperation in the investigation and

prosecutions of others. The district court granted the motion and departed downward by 4 offense

levels, to 33, resulting in a final guidelines range of 135 to 168 months.

During the sentencing hearing, Appellant contended that the sentencing guidelines for

MDMA related offenses were flawed and not grounded in sound policy or scientific fact. Appellant

directed the district court to United States v. McCarthy, No. 09 Cr. 1136, 2011 WL 1991146

(S.D.N.Y. May 19, 2011), in which the court rejected the calculations made by the U. S. Sentencing

Commission regarding the comparison under the drug equivalency tables, U.S.S.G. § 2D1.1, of each

illegal drug to marijuana. Prior to 2001, the Sentencing Commission enacted guidelines which

deemed one gram of MDMA to be the equivalent of thirty-five grams of marijuana. In 2000,

Congress directed the Sentencing Commission to review and increase the penalties for MDMA.

Children’s Healthcare Act of 2000, Pub. L. No. 106-310, 114 Stat. 1101, 1241–45 (2000).

The Sentencing Commission thereafter filed a report with Congress and amended the

guidelines to reflect that one gram of MDMA would now equal five hundred grams of marijuana.

By comparison one gram of cocaine is deemed to equal two hundred grams of marijuana. Report

to Congress: MDMA Drug Offenses, Explanation of Recent Guideline Amendments (2001).

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In McCarthy, the district court disputed the findings of the Commission and held that (1)

cocaine is more addictive; (2) MDMA is not more aggressively marketed to youths than cocaine; (3)

cocaine causes more violence than MDMA; and (4) MDMA was mistakenly described as a

hallucinogen. 2011 WL 1991146 at *1-4. The district court rejected the 2001 amendments to the

drug equivalency table and instead adopted a 200 to 1 ratio of MDMA to marijuana, the same as

applied to cocaine. Id. at *4.

Appellant asked the court to follow McCarthy, reject the current guideline, and adopt a 200

to 1 ratio for MDMA. The district court rejected the request and focused upon the large quantities

of both marijuana and MDMA which constituted Appellant’s relevant conduct. The district court

also emphasized the role Appellant played as an organizer and leader, in a national scheme, which

it found was entitled to more weight than the drug equivalency tables.

The district court imposed a sentence of 120 months, fifteen months below the sentencing

guidelines range, as computed after the § 5K1.1 motion was granted. Under United States v. Bostic,

371 F.3d 865, 872–73 (6th Cir. 2004), the district court permitted counsel for Appellant to place

further objections on the record. Her counsel contended that the district court did not specifically

address his argument that the MDMA guideline was flawed. The district court responded, “I will

make it clear for you. It would not have made a difference.” (Sent. Tr., Dist. Ct. Docket No. 500,

52).

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United States v. Thannavong

II.

We review the sentence imposed by the district court for both procedural and substantive

reasonableness. As to procedural reasonableness, we look to whether the district court “(1) properly

calculated the applicable advisory Guidelines range; (2) considered the other [18 U.S.C.] § 3553(a)

factors as well as the parties’ arguments for a sentence outside the Guidelines range; and (3)

adequately articulated its reasoning for imposing the particular sentence chosen, including any

rejection of the parties arguments for an outside-Guidelines sentence . . . .” United States v. Bolds,

511 F.3d 568, 581 (6th Cir. 2007).

“‘A sentence is substantively unreasonable if the sentencing court arbitrarily selected the

sentence, based the sentence on impermissible factors, failed to consider pertinent § 3553(a) factors,

or gave an unreasonable amount of weight to any pertinent factor.’” United States v. Mitchell,

681F.3d 867, 881 (6th Cir. 2012) (quoting United States v. Cunningham, 669 F.3d 723, 728 (6th Cir.

2012)). A sentence within the sentencing guidelines range is presumptively reasonable; a sentence

varying from the guidelines range is not subject to a presumption of unreasonableness. Gall v.

United States, 552 U.S. 38, 47 (2007). Furthermore, when a defendant appeals a below-guidelines

sentence, the defendant bears an even more demanding burden than overcoming a presumption of

reasonableness which attaches to a within-guidelines sentence. United States v. Curry, 536 F.3d 571,

573 (6th Cir. 2008).

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III.

Appellant contends that the district court erred in rejecting her contention that the MDMA

related guidelines and drug equivalency are flawed and should be disregarded. This contention is

made in several permutations, each of which is addressed separately.

The first claim is that the district court failed to consider her argument regarding the MDMA

guidelines, or at least failed to articulate the reasons for rejecting the argument. The record indicates

otherwise. In response to Appellant’s argument for a different ratio of MDMA to marijuana, the

district court stated:

. . . if this were a case of just possession by somebody who is youthful, and that’s all
he did was possess it, I would be inclined to address some of these policy
considerations. But we’re dealing here with somebody who set up a structure to
market the drugs, which to me is different. It wasn’t just the Ecstasy, it was
marijuana. It wasn’t just one transaction, there were many. It was national,
interstate, in structure, in transactions, lots of money, weapons. And to me, that’s a
different set of dangers separate and apart from just the fact that Ecstasy is involved
and the Commission thinks it’s 500.

For purposes of sentencing here, it’s the facts of the offense and the
commercial aspects of the offense that, to me, take it outside the scope of this policy
differences on health effects or health dangers of Ecstasy.

In addition, by statute you’ve got to consider disparities in sentences. And
one of the defendants in this, who my recollection is – that was my next question,
from the government’s perspective, got 110 months, Mr. Ramsey.

(Sent. Tr., Dist.. Ct. Docket No. 500, 31-32).

The district court was required to articulate the rejection of Appellant’s argument. It did that

by emphasizing the large extent of the drug conspiracy, the national scope, the amount of money,

and the large quantity of marijuana. The sentencing judge explained that the aggravated nature and

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United States v. Thannavong

scope of the criminal conduct weighed against a substantial reduction in the sentencing guidelines,

as would occur under Appellant’s proposed rejection of the MDMA to marijuana ratio. The district

court “set forth enough to satisfy [this] court that he has considered the parties’ arguments and has

a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551

U.S. 338, 356 (2007).

Appellant urges this court to find that, under § 3553(a), a five hundred to one MDMA to

marijuana ratio overstates the nature of the offense and the need for the sentence imposed. While

this claim as to ratio may be true in an appropriate case, it is but one of many factors for the district

court to consider under § 3553(a). As made clear in Gall v. United States, 552 U.S. at 51, we are

to show deference to the district court in the application of the § 3553(a) factors.

Appellant bears a heavy burden in seeking reversal of a district court’s decision to reject a

categorical attack on the sentencing formula promulgated by the Sentencing Commission. Further,

while she is correct insofar as a sentencing judge must address each non-frivolous argument made

by a party at sentencing, this court has made clear:

Moreover, Brooks cites no authority to support the proposition that a district court
must, on its own initiative, examine the underlying bases for a Guideline before
imposing a sentence. The Seventh Circuit has in fact rejected this line of argument:

[W]e do not think a judge is required to consider . . . an argument that a guideline is
unworthy of application in any case because it was promulgated without adequate
deliberation. He should not have to delve into the history of a guideline so that he can
satisfy himself that the process that produced it was adequate to produce a good
guideline. For if he is required to do that, sentencing hearings will become
unmanageable, as the focus shifts from the defendant's conduct to the “legislative”
history of the guidelines.

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United States v. Thannavong

United States v. Aguilar–Huerta, 576 F.3d 365, 367–68 (7th Cir.2009) (citations
omitted) (emphases in original). We agree with the above reasoning.

United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011).

Similarly, we have held that “a district court may indeed disagree with a Guideline for policy

reasons and may reject the Guidelines range based on that disagreement.” Id. at 799 (citing United

States v. Herrera-Zuniga, 571 F.3d 568, 585–86 (6th Cir. 2009)) (emphasis in original). But we

have also made clear that “the fact that a district judge may disagree with a Guideline for policy

reasons and may reject the Guidelines range because of that disagreement does not mean that the

court must reject the Guidelines range if it disagrees.” Id. at 800.

The sentencing judge considered the argument made by Appellant that the Sentencing

Commission based the sentencing guidelines regarding MDMA upon flawed findings and

assumptions. Given the facts in this case, the district court was not persuaded that the guidelines

range should be rejected. We cannot say that such conclusion was unreasonable.

We summarily dispose of several other issues Appellant raises. The district court properly

considered the sentences imposed upon other members of the same conspiracy. He reviewed the

extent of the criminal behavior of the other defendants, the role each played in the conspiracy, and

the extent and timing of cooperation. All of these factors are relevant to a final determination of a

fair sentence under 18 U.S.C. § 3553(a). Finally, although the district judge did at one point confuse

MDMA with methamphetamine, the mistake was made known at the sentencing hearing and any

misunderstanding obviated.

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The sentence imposed was below the sentencing guidelines range. Because this appeal is by

Defendant-Appellant, a below-guidelines sentence is entitled to a presumption of reasonableness.

Curry, 536 F.3d at 573. Further, because the sentence in this case is below the guidelines range,

Appellant has an “even more demanding” burden. Id. We cannot say that the sentence imposed

was unreasonable.

IV.

Based upon the foregoing, the sentence imposed by the district court is affirmed.

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