What’s Drug Dealer To Do?

United States v. Figueroa, No. 10-2050-cr (2d Cir. May 16, 2011) (Miner, Cabranes, Straub, CJJ)

Several months ago, in a per curiam, the court held that it was not error for a district court to treat the combination of BZP and TFMPP, which is commonly sold on the street as ecstasy, but for which there is no dedicated guideline, as ecstasy (“MDMA”) . This opinion deals with BZP alone, and reaches a different result.

Here, the defendants had about 20,000 pills containing BZP, combined with trace – the circuit called it “unmeasurable” – amounts of other substances, including TFMPP. The district court treated the pills as containing pure BZP, then analogized BZP to MDMA for guidelines purposes. The defense disputed this, and asked for a hearing, but the district court refused even that, relying on the DEA’s lab report and the fact that BZP is sold as MDMA on “the street.”

On appeal, the court found that this record presented an insufficient basis to conclude that BZP alone is most analogous to MDMA for guidelines purposes. It noted that the interchangeability of the two drugs “on the street” could not justify the conclusion, since the relevant guideline provision, Application Note 5 to § 2D1.1, requires consideration of such factors as chemical structure and effect on the central nervous system.

The court also observed, however, that this decision might result in a harsher punishment on remand, since it is possible that amphetamine might be found to be the most analogous drug to pure BZP, and amphetamine has a higher marijuana equivalency than MDMA. Here, likening BZP to amphetamine instead of MDMA would result in a two-level increase.

Moreover, the court could not ascertain at oral argument that the defendants were aware of this risk and wished to proceed anyway, since the appeal was submitted for decision without argument. The court accordingly stayed the mandate for an additional 30 days to give counsel an opportunity to confer with the defendants about the risks of pursuing the appeal, and offered them the opportunity to withdraw the appeal “at anytime prior to the issuance of the mandate.”