Summary Calendar UNITED STATES OF AMERICA v. Marc Steven Tushnet

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-20103
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARC STEVEN TUSHNET
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CR-830-3
Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
SOUTHWICK, Circuit Judge:
Marc Steven Tushnet pled guilty to one count of conspiracy to possess with
the intent to distribute a detectable amount of 3, 4 methylenedioxymeth-
amphetamine (MDMA), thereby violating 21 U.S.C. §§ 841(a)(1), (b)(1)(C), & 846.
He also pled guilty to two counts of aiding and abetting the possession with
intent to distribute MDMA, violating 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), and 18
U.S.C. § 2. He was sentenced to concurrent sentences of eighty-seven months
of imprisonment and three years of supervised release.
On appeal, Tushnet accepts the district court’s factual determination that
he was accountable for 45,331 MDMA pills. He argues, though, that the court
improperly calculated the weight of the pills. Tushnet contends that the court
United States Court of Appeals
Fifth Circuit
F I L E D
April 30, 2008
Charles R. Fulbruge III
Clerk

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No. 07-20103
1Although MDMA is not specifically included in the Drug Quantity Table to which Note
B applies (the amount of MDMA must first be converted into marihuana terms), the Drug
Equivalency Tables – where MDMA is included – make comparable distinctions. See U.S.S.G.
§ 2D1.1, Application Note 10(E) (e.g.,”1 gm of Methamphetamine” equals “2 kg of marihuana”;
“1 gm of Methamphetamine (actual)” equals “20 kg of marihuana”).
2
erred by using the “presumed weight” of 250 mg per MDMA pill suggested by the
Typical Weight Per Unit Table contained in the application notes of the United
States Sentencing Guidelines, Section 2D1.1. He argues that the district court
should have used the figure of 100 mg per pill because each of the approximately
5000 pills analyzed by the Drug Enforcement Administration’s (DEA) lab report
contained 100 mg of MDMA. Had the district court used the lesser weight,
Tushnet’s base offense level would have been two levels less.
This Court reviews the district court’s interpretation and application of the
Sentencing Guidelines de novo; the district court’s factual findings are reviewed
on appeal for clear error. United States v. Villanueva, 408 F.3d 193, 202, 203 n.9
(5th Cir. 2005). Contrary to Tushnet’s contention, the relevant weight is not the
actual weight of MDMA detected in each pill, but rather – as the indictment
charges – the entire weight of any “mixture or substance containing a detectable
amount” of MDMA.
Under the Sentencing Guidelines, except when “otherwise specified, the
weight of a controlled substance set forth in the table refers to the entire weight
of any mixture or substance containing a detectable amount of the controlled
substance.” U.S.S.G. § 2D1.1(c), Note A to the Drug Quantity Table. On the
other hand, when the Guidelines refer to the net weight of a drug rather than
the gross weight of the “filler” and drug together, the designation “(actual)” is
used. U.S.S.G. § 2D1.1(c), Note B to the Drug Quantity Table (“The terms ‘PCP
(actual)’, ‘Amphetamine (actual)’, and ‘Methamphetamine (actual)’ refer to the
weight of the controlled substance, itself, contained in the mixture or
substance.”).1

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No. 07-20103
3
MDMA is not among the controlled substances listed in the Drug Quantity
Table we just discussed. However, the same approach – using the pure drug
weight only when that is specifically designated – is continued in the Typical
Weight Per Unit Table that does apply to MDMA. There, an asterisk appears
next to a named drug when the amount of the controlled substance alone is
intended and not the drug’s weight in combination with a filler. See U.S.S.G. §
2D1.1, Application Note 11. MDMA is not one of the drugs designated with an
asterisk. Cf. Chapman v. United States, 500 U.S. 453, 459 (1991) (statute in
some instances indicates that the weight of the pure drug is used to determine
a sentence; when statute does not so indicate, presumption is that relevant
weight is that of the mixture which contains the drug).
Accordingly, the 100 mg of MDMA per-pill amount was not the relevant
figure for the district court’s calculations. The district court did not err in
applying the presumed typical weight of 250 mg indicated by the Sentencing
Guidelines when calculating Tushnet’s sentence.
AFFIRMED.

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