United States District Court, D. Vermont
FINDINGS OF FACT
Christmas Reiss, Chief
To determine contested drug quantity for the purposes of sentencing in the above-captioned cases, the court held an evidentiary hearing on March 1, 2016 and March 4, 2016 at which the following witnesses testified: Dr. Thomas DiBerardino, Dr. Cassandra Prioleau, Dr. Jonathan Lipman, David Harrison, Heather McBrearty, Teanna Record, Detective Sergeant Patrick Call, and Vermont State Police Lieutenant Daniel Trudeau.
The issue before the court is the proper marijuana equivalency for alpha-pyrrolidinopentiophenone ("a-PVP"). The government bears the burden of establishing the contested drug quantity by a preponderance of the evidence. See United States v. Colon, 961 F.2d 41, 43 (2d Cir. 1992) (holding that where the quantity of drugs is contested, the government has the burden to establish by a preponderance of the evidence the quantity attributable to defendant).
The impact of the court's determination on the appropriate marijuana equivalency for a-PVP is significant. If Defendants prevail with their argument, Defendant Eugenia Emerson will have a base offense level of 28 based on heroin attributed to her, which she does not contest, but no additional drug quantity due to the a-PVP. Defendant Jesse Emerson will have a base offense level of 8.
The court makes the following findings of fact by a preponderance of the evidence:
1. Defendants have pled guilty to, among other things, conspiracy to distribute a-PVP.
2. a-PVP is not specifically referenced in the November 2015 edition of the Sentencing Guidelines Manual. Pursuant to Application Note 6 to USSG § 2D1.1, in the case of a controlled substance that is not specifically referenced in the Sentencing Guidelines, the court must determine the base offense level using the marijuana equivalency most closely related to a controlled substance referenced in the Sentencing Guidelines.
3. In order to make the "most closely related" determination, to the extent practicable, the court must conduct a three prong analysis:
Prong A: whether the controlled substance not referenced in the Sentencing Guidelines has a chemical structure that is substantially similar to a controlled substance referenced in the Sentencing Guidelines.
Prong B: whether the controlled substance not referenced in the Sentencing Guidelines 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 the Sentencing Guidelines.
Prong C: whether a lesser or greater quantity of the controlled substance not referenced in the Sentencing Guidelines is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in the Sentencing Guidelines.
4. The government asks the court to find that a-PVP is most closely related to methcathinone, which is specifically referenced in the Sentencing Guidelines and which has a marijuana equivalency of 380 grams per one gram of methcathinone.
5. Defendants ask the court to find that a-PVP is most closely related to pyrovalerone, which is a Schedule V controlled substance not specifically identified in the Sentencing Guidelines. The Drug Quantity table set forth in USSG § 2D1.1 provides a marijuana equivalency of 0.00625 grams for one unit of a Schedule V Substance. Application Note 8(B) to USSG § 2D1.1 provides that "[f]or certain types of controlled substances, the [marijuana] equivalencies in the Drug Equivalency Tables are 'capped' at specific amounts[.]" The note provides that the combined weight of all Schedule V controlled substances shall not exceed 2.49 kilograms of marijuana.
6. The court declines to find United States v.Moreno, 2015 WL 6071680 (W.D. Wise. Oct. 15, 2015), persuasive insofar as it concludes that pyrovalerone cannot be deemed the "most closely related" controlled substance to a-PVP simply because it is not specifically mentioned in the Sentencing Guidelines. See Id. at *3 ("The court reject[s] defendants' primary argument that pyrovalerone was an appropriate comparator" to a-PVP because, even though a-PVP "is structurally similar to pyrovalerone, and perhaps more closely similar to pyrovalerone than to methcathinone[, ] . . . [it] is not referred to in the [Sentencing G]uideline[s]"). The Sentencing Guidelines specifically reference Schedule V drugs as a source of marijuana equivalency and thus pyrovalerone should be considered for the "most closely related" determination, consistent with the rule of lenity. See United States v.Ketchen, 2015 WL 3649486, at *16 (D. Me. June 11, 2015) (observing that pyrovalerone is not specifically referenced in the Sentencing Guidelines but nonetheless analyzing it under the "most closely related" test and concluding "[b]ased on the evidence now before the [c]ourt, the [c]ourt ...