United States Court of Appeals
For the First Circuit
No. 09-1075
UNITED STATES,
Appellee,
v.
DANIEL EKASALA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Robert L. Ullmann, Alexa H. O'Keefe, and Nutter, McClennen &
Fish, LLP on brief for appellant.
Jennifer Hay Zacks, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.
March 1, 2010
Per Curiam. This is a direct appeal from the defendant's
42-month, below-guidelines sentence for possessing and distributing
oxycodone. He raises two issues on appeal. First, he argues that
the marijuana equivalent for oxycodone is irrationally high.
Second, he argues that the district court abused its discretion in
declining to impose a lighter sentence for that and other reasons.
For the reasons discussed below, we find neither argument persuasive
and therefore summarily affirm the district court's judgment.
Because we do not believe that oral argument would be helpful, we
deny the appellant's request for argument.
The first issue that the defendant raises on appeal is
whether the marijuana equivalent for oxycodone, as amended by
Amendment 657,1 is arbitrary and capricious. This argument has two
components. Primarily, the defendant challenges the rationality of
changing the marijuana equivalent from 500 grams per gram of pill
weight, regardless of the amount of oxycodone contained in each
pill, to 6,700 grams per gram of actual oxycodone. Secondarily, he
challenges the rationality of attaching a higher marijuana
equivalent, and resulting higher base offense level, to oxycodone
than to an equal weight of heroin.
1
Amendment 657 changed the marijuana equivalent for oxycodone
in two respects. First, it based the equivalent on the amount of
actual oxycodone involved rather than on the gross weight of the
pills containing oxycodone. Second, it made 1 gram of oxycodone
equivalent to 6,700 grams of marijuana, rather than 1 gram of pill
weight equivalent to 500 grams of marijuana. See Guidelines
Manual, App. C, vol. II at 396.
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The latter argument, which is raised in a single
conclusory sentence, is effectively waived and therefore need not
be considered. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). The former argument, while novel, can be readily dispatched.
Two threshold issues raised by the government are whether
the defendant is effectively challenging the constitutionality of
Amendment 657 and, if so, whether any such constitutional claim was
preserved below. We bypass those threshold issues since, even
assuming that the defendant effectively raises a preserved
constitutional claim, which is therefore subject to plenary review
by this court, that claim fails on its merits.
To the extent that the defendant is challenging Amendment
657 as violating the equal protection component of the Fifth
Amendment's Due Process Clause, that claim must fail as long as the
Sentencing Commission had a rational basis, United States v.
Singleterry, 29 F.3d 733, 740 (1st Cir. 1994), for basing the
marijuana equivalent of oxycodone on the weight of actual oxycodone,
rather than on the gross weight of the pills involved, and for
setting a proportionately higher marijuana equivalency for 80
milligrams than for 10 milligrams of actual oxycodone. Such a
rational basis existed here.
As the Commission itself explained in adopting Amendment
657, that amendment was intended to address "proportionality issues
in the sentencing of oxycodone trafficking offenses" that arose
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under the pre-amendment version, under which pills containing
greatly differing amounts of actual oxycodone had the same marijuana
equivalent and, hence, the same base offense level. Guidelines
Manual, App. C., vol. II at 396-97. It was certainly not irrational
for the Commission to set higher marijuana equivalencies--and
thereby increased punishment--for offenses involving higher actual
amounts of oxycodone. In particular, it was not irrational to make
the marijuana equivalent for pills containing 80 milligrams of
actual oxycodone eight times higher than the marijuana equivalent
for pills containing 10 milligrams of actual oxycodone. Although
the Commission's explanation focused on the disproportionality of
assigning the same marijuana equivalency to 135-milligram pills
containing 10, 20, or 40 milligrams of actual oxycodone, the same
rationale supports a proportional increase in the marijuana
equivalency for pills containing 80 milligrams of actual oxycodone.
That is so even if, as the defendant alleges, the gross weight of
those pills is higher than 135 milligrams and such pills therefore
would have had a somewhat higher--but not proportionately higher--
marijuana equivalent even prior to Amendment 657. Given that
rational basis, a constitutional attack on Amendment 657 fares no
better than did such attacks on the guidelines' former 100:1 ratio
for crack as opposed to powder cocaine. See Singleterry, 29 F.3d
at 740.
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The defendant's second argument--that the district court
abused its discretion in failing to vary downward more than four
months below the applicable guideline range based on the alleged
irrationality of Amendment 657 and other factors--is equally
unavailing. As we held in rejecting a similar argument as to
crack/powder disparity, the mere fact that a sentencing court has
the discretion to disagree with the guidelines on policy grounds,
Kimbrough v. United States, 552 U.S. 85, 102, 109 (2007), does not
mean that it is required to do so. United States v. Gibbons, 553
F.3d 40, 46 (1st Cir. 2009). Here, the district court expressly
recognized that Amendment 657, like any other guideline, is
advisory; but the court chose to follow it because it agreed, rather
than disagreed, with its underlying policy rationale to increase the
punishment for offenses involving large amounts of actual oxycodone.
That choice was well within the district court's post-Kimbrough
discretion. United States v. Stone, 575 F.3d 83, 93-94 (1st Cir.
2009), cert. denied, 2010 WL 58756 (U.S. Jan. 11, 2010).
The remainder of the defendant's brief faults the district
court for failing to grant a greater downward variance based on
other factors, including the nature and circumstances of the offense
and the history and characteristics of the defendant. However, in
choosing to vary four months below the bottom of the applicable
guideline range, the court expressly took into account the very
factors that the defendant points to here--that the defendant
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counseled the cooperating witness to stop using oxycodone and that
the defendant had a loving family and had led an "otherwise
exemplary life." Despite those factors, the court declined to
impose an even lighter sentence because of the "most serious" nature
of the offense, possessing and distributing a relatively large
amount of oxycodone on three separate occasions. That the district
court did not weigh the mitigating factors more heavily does not
make its resulting sentence unreasonable. United States v. Dixon,
449 F.3d 194, 204 (1st Cir. 2006).
Accordingly, the district court's judgment is affirmed.
See 1st Cir. R. 27.0(c).
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