09-3442-cr
United States v. Chowdhury
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2010
(Argued: February 17, 2011 Decided: February 22, 2011)
Docket No. 09-3442-cr
UNITED STATES OF AMERICA ,
Appellee,
v.
NIZAMUDDIN CHOWDHURY,
Defendant-Appellant.*
Before: CABRANES, CHIN, Circuit Judges, and CROTTY, District Judge.**
______________
Nizamuddin Chowdhury appeals from a July 31, 2009, judgment of conviction entered by
the United States District Court for the Northern District of New York (Glenn T. Suddaby, Judge),
for possession with intent to distribute 1-Benzylpiperazine (BZP) in violation of 12 U.S.C. § 846.
We hold that the District Court did not err when it determined that the controlled substance
referenced in the United States Sentencing Guidelines that is most closely related to a mixture of
BZP and 3-triflouromethylphenyl (TFMPP) is 3,4-Methylenedioxymethamphetamine (MDMA), or
ecstasy. The sentence imposed by the District Court was not procedurally unreasonable and the
judgment of the District Court is AFFIRMED.
*
The Clerk of Court is directed to amend the official caption in this case to conform to the
listing of the parties above.
**
The Honorable Paul A. Crotty, of the United States District Court for the Southern
District of New York, sitting by designation.
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GENNARO D. CALABRESE, Kindlon Shanks & Associates, Albany
NY, for Defendant-Appellant Nizamuddin Chowdhury.
PAUL D. SILVER, Assistant United States Attorney (Richard S.
Hartunian, United States Attorney, on the brief; and Daniel C.
Gardner, Assistant United States Attorney, of counsel), United
States Attorney’s Office for the Northern District of New
York, Albany, NY, for Appellee United States of America.
PER CURIUM:
The question presented is whether the United States District Court for the Northern
District of New York (Glenn T. Suddaby, Judge) engaged in clearly erroneous fact-finding that led to
a procedurally unreasonable sentence when it determined that the controlled substance referenced in
the United States Sentencing Guidelines that is most closely related to a mixture of
1-Benzylpiperazine (“BZP”) and 3-Triflouromethylphenyl (“TFMPP”) is
3,4-Methylenedioxymethamphetamine (“MDMA”), or ecstasy. We hold that the District Court did
not err, much clearly err, and therefore affirm.
BACKGROUND
The facts of this case are not in dispute. In November 2008, approximately 28,000 yellow
pills were found in defendant-appellant Nizamuddin Chowdhury’s car when he was stopped at a
U.S. Customs and Border Protection (CBP) checkpoint in upstate New York. The pills, which
tested positive for MDMA at the checkpoint, were later verified at a laboratory to contain a
combination of BZP and TFMPP. In February 2009, Chowdhury pleaded guilty to one count of
possession with intent to distribute approximately 8.475 kilograms of BZP in violation of 12 U.S.C.
§ 846.
Because BZP is a “controlled substance that is not specifically referenced” in the Guidelines,
the United States Probation Office calculated Chowdhury’s base offense level by using the “the
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marijuana equivalent of the most closely related controlled substance referenced in” the Guidelines.
U.S.S.G. § 2D1.1, cmt. n. 5. The marijuana equivalency for 8.475 kilograms of MDMA translates
into a base offense level of 34.1 The Probation Office reduced the offense level by 2 levels pursuant
to the “safety valve” provision under U.S.S.G. § 5C1.2 and 3 more levels for Chowdhury’s
“acceptance of responsibility” pursuant to U.S.S.G. § 3E1.1(a). The final offense level was therefore
29, which, with a criminal history category of I, rendered the Guidelines range 87-108 months.
At sentencing, Chowdhury argued that the use of MDMA as a substitute for BZP-TFMPP
was error. He argued that because BZP is ten to twenty times less potent than MDMA, and more
similar to amphetamine, the District Court should use amphetamine as the most closely related
substitute. In response, the government argued that—according to the Forensic Laboratory in New
York City of the Drug Enforcement Administration (“DEA”)—“BZP is mixed with TFMPP for the
specific purpose of mimicking the effects of MDMA”; that “the mixture of the two chemicals
together causes an effect on the central nervous system similar to MDMA”; and that the
combination of BZP and TFMPP is “sold by drug traffickers as MDMA at the same price.” Rebuttal
Sentencing Memorandum of the United States 6. The District Court concluded that “it’s pretty clear that
when BZP [is] combined with TFMPP, it is closest to [MDMA], ecstasy.” Transcript of Sentencing
Proceeding at 15, United States v. Chowdhury, 08-cr-710 (N.D.N.Y. July 31, 2009). The District Court
therefore “credited” the Probation Office’s calculation of the Guideline range, id., and sentenced
Chowdhury within the Guideline range, principally to a 96-month term of imprisonment.
Chowdhury filed a timely notice of appeal.
Under U.S.S.G § 2D1.1, tbl. D (Drug Equivalency Tables), 1 gram of MDMA is equal to
1
500 grams of marijuana. 8.475 kilograms of MDMA therefore equals 4,237.5 kilograms of marijuana,
which indicates a base offense level of 34. Id. tbl. C (Drug Quantity Table) (associating “[a]t least
3,000 KG but less than 10,000 KG of Marihuana” with a base offense level of 34).
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DISCUSSION
It is well established that we review a criminal sentence for “‘unreasonableness,’” which
“amounts to review for abuse of discretion.” United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008)
(in banc) (quoting United States v. Booker, 543 U.S. 220, 245 (2005)). “Reasonableness review requires
an examination of the length of the sentence (substantive reasonableness) as well as the procedure
employed in arriving at the sentence (procedural reasonableness).” United States v. Johnson, 567 F.3d
40, 51 (2d Cir. 2009). “Procedural error includes, among other things, selecting a sentence based on
clearly erroneous facts.” United States v. DeSilva, 613 F.3d 352, 356 (2d Cir. 2010) (quotation marks
omitted). “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the
reviewing court . . . is left with the definite and firm conviction that a mistake has been committed.”
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quotation marks omitted).
Chowdhury contends that the District Court clearly erred when it held that—for the purpose
of calculating his guideline sentencing range—the controlled substance referenced in the Guidelines
that is most closely related to a mixture of BZP and TFMPP is MDMA. He argues that, because it
was clear error for the District Court to use MDMA, the District Court misapplied the Guidelines
and his sentence is therefore procedurally unreasonable. We disagree. The Sentencing Guidelines
specify that “[i]n determining the most closely related controlled substance” for the purposes of §
2D1.1, the Court must take into account “to the extent practicable”:
(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.
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(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.
Id., cmt. n. 5.
It is clear from the record below that the District Court carefully considered the statutory
factors. It relied on the DEA’s determination that BZP and TFMPP are used in combination
precisely because the mixture “mimic[s] the effects” of MDMA on the central nervous system. See
Brief of the United States 13 (citing National Forensic Laboratory Information Midyear Report 2003
at 14, available at http://www.deadiversion.usdoj/gov/nflis/2003midyear.pdf (last visited on Dec.
12, 2010)); see also Microgram Bulletin - Intelligence Alert, Drug Enforcement Administration, Office
of Forensic Sciences (December 2008), available at http://www.justice.gov/dea/programs/
forensicscimicrogram/mg1208/mg1208.html (last visited on Jan. 29, 2011). The fact that the pills
confiscated from Chowdhury were preliminarily identified by the CBP agents as MDMA and have a
“street price” similar to that of MDMA lends further support to the conclusion that their intended
neurological effects are similar. As a result, we are persuaded that the District Court did not err in
deciding to “credit the Probation Department’s” conclusion that “when BZP [is] combined with
TFMPP, it is closest to [MDMA].”
The fact that the District Court lacked sufficient data with respect to the chemical structure
and potency of BZP-TFMPP is of little significance. The statute explicitly requires that the
sentencing judge consider the enumerated factors, “to the extent practicable,” § 2D1.1 cmt. n. 5,
thus recognizing that, in some circumstances, sentencing courts will be unable to match substances
under each of the factors. In the absence of a substance with a substantially similar chemical
structure, see United States v. Beckley, 715 F. Supp. 2d 743, 748 (E.D. Mich. 2010) (concluding, after
extensive fact-finding, that “there is no controlled substance within the Sentencing Guidelines
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Manual that has a chemical structure which is similar to that of BZP-TFMPP”), or reliable
information regarding the relative potency of the two substances, see Defendant’s Sentencing
Memorandum 3 (conceding that “we don’t know the relative potencies of BZP and MDMA”
(emphasis omitted)), the District Court’s determination that MDMA is the appropriate substitute for
BZP-TFMPP was not “clearly erroneous.” Indeed, each federal court to confront this question has
come to the same conclusion. See United States v. Rose, 722 F. Supp. 2d 1286, 1289 (M.D. Ala. 2010);
Beckley, 715, F. Supp. 2d at 749.2
Finally, we also reject Chowdhury’s argument that because the crime for which he was
convicted related solely to the possession of BZP, the District Court should have limited its analysis
to the closest substitute for BZP as opposed to BZP-TFMPP. As in Beckley and Rose, the substance
in Chowdhury’s possession was not BZP alone, but a combination of BZP-TFMPP that “is sold as
MDMA, promoted as an alternative to MDMA and is targeted to the youth population.” Schedules
of Controlled Substances, 69 Fed. Reg. 12794-01, 12795 (Mar. 18, 2004). To ignore the fact that the
narcotics in Chowdhury’s possession were more similar to MDMA than any alternative would
stretch the logic of the Sentencing Guidelines beyond their breaking point.
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Chowdhury urges us to conclude that the sentence imposed by the District Court was also
procedurally unreasonable because in determining Chowdhury’s base-offense level under the
Guidelines the District Court did not take into account the fact that BZP-TFMPP may be
significantly less potent than an equivalent amount of MDMA. However, even if, arguendo, we were
inclined to agree that the District Court erred in crediting the DEA’s determination on the question
of potency, the fact that the District Court failed to reduce Chowdhury’s base-offense level would
not constitute error because the question of the relative potency of two narcotics is appropriately
considered by a sentencing court as part of its analysis pursuant to 18 U.S.C. § 3553(a). See Rose, 722
F. Supp. 2d at 1289 (“After there has been a determination of the listed drug most closely related to
the unlisted drug, the Sentencing Guidelines do not provide a method to adjust the base-offense
level for any potency difference remaining between the listed drug and the unlisted drug. This
potency adjustment, if warranted, may therefore be appropriately addressed as a variance.”).
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Because the District Court did not err when it determined that the controlled substance
referenced in the Guidelines that is most closely related to a mixture of BZP-TFMPP is MDMA,
and did not err in calculating the base offense level for the quantity of MDMA found in
Chowdhury’s car, it did not err in calculating Chowdhury’s guideline sentencing range. Chowdhury’s
sentence was therefore not procedurally unreasonable.
CONCLUSION
To summarize: we hold that the District Court did not commit procedural error when it
determined that the controlled substance referenced in the United States Sentencing Guidelines that
is most closely related to a mixture of 1-Benzylpiperazine (“BZP”) and 3-triflouromethylphenyl
(“TFMPP”) is 3,4-Methylenedioxymethamphetamine (“MDMA”), or ecstasy. Accordingly, the
judgment of the District Court is AFFIRMED.
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