United States v. Matthew Browning

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, Michael J. Melloy and Raymond W. Gruender (UNPUBLISHED) [4434963] [15-3657]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3657
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Matthew Paul Browning
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: June 13, 2016
Filed: August 8, 2016
[Unpublished]
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Before SMITH, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.

Appellate Case: 15-3657

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Date Filed: 08/08/2016 Entry ID: 4434963

Matthew Paul Browning appeals his sentence arguing the district court1 erred
by relying on the sentencing guidelines’ equivalency ratio for synthetic
Tetrahydrocannabinol (“THC”) to marijuana of 1:167. Although not precisely
articulated as such, he appears to argue his sentence involves both procedural error
and substantive unreasonableness. We affirm.
I.
Browning was indicted for drug offenses and conspiracy to commit money
laundering and mail fraud, all related to his processing and sale of synthetic
cannabinoids. He pleaded guilty to conspiracy to commit money laundering and mail
fraud, in violation of 18 U.S.C. §§ 1956(h) and 1341, respectively. Each count of
conviction carries a maximum statutory sentence of 20 years. The applicable
Guideline for his money-laundering offense, U.S.S.G. § 2S1.1, incorporates by cross
reference the base offense level of “the underlying offense from which the laundered
funds were derived.” U.S.S.G. § 2S1.1(a)(1). Pursuant to this cross reference, the
controlling Guideline is the drug-offense Guideline found at U.S.S.G. § 2D1.1. At
sentencing, Browning conceded a drug quantity, but he objected to the use of the
marijuana-equivalence multiplier found in the drug equivalency table at U.S.S.G.
§ 2D1.1 cmt. 8(D). That table directs courts to treat 1 gram of synthetic THC as
equivalent to 167 grams of marijuana. The district court rejected Browning’s
argument and calculated the base offense level using the 1:167 ratio.
After applying other adjustments and considering Browning’s Criminal History
Category I, the district court calculated the advisory Guidelines sentencing range as
108 to 135 months. Then, when discussing several of the sentencing factors of 18
U.S.C. § 3553(a), the district court again referenced Browning’s challenge to the use

1

The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
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of the 1:167 marijuana-equivalency multiplier. The government sought a top-of-therange sentence, and Browning urged the court to impose time served and supervision.
The court ultimately imposed a sentence of 72 months’ imprisonment. Browning
appeals.
II.
On appeal Browning argues the 1:167 ratio is flawed as a matter of science and
policy and that the district court erred by employing the ratio. We previously have
held the ratio is appropriate for cases like this. See United States v. Carlson, 810 F.3d
544, 556 (8th Cir. 2016) (“Although Carlson argues that the 1:167 ratio lacks
scientific support because recreational marijuana contains a higher level of THC than
the guideline ratio assumes, a sentencing court may use guideline commentary ‘as a
tool for calculating the base offense level’ for a convicted defendant.” (quoting
United States v. Muckle, 755 F.3d 1024, 1026 (8th Cir. 2014))). We also have held
it is not error to use the 1:167 ratio in a case involving drug weights derived from a
mixture of THC and inert plant material. See United States v. Ramos, 814 F.3d 910,
918–20 (8th Cir. 2016) (rejecting the argument that the Guidelines ratio for pure THC
was inapplicable to weights obtained for mixtures of pure THC and inert plant
material), but see Ramos, 814 F.3d at 920–24 (Bright, J., dissenting) (discussing in
detail the sentencing tables and the relationship between pure THC and mixtures
containing THC).
Browning nevertheless argues the district court erred by failing to second guess
the sentencing commission and failing to conduct an independent inquiry as to the
propriety of the sentencing commission’s determination of the 1:167 ratio. In making
this argument he relies upon district courts’ authority, as recognized in Spears v.
United States, 555 U.S. 261, 266–67 (2009), and Kimbrough v. United States, 52 U.S.
85, 102–10 (2007), to depart from the Guidelines based upon disagreement with the
underlying policy and factual findings or assumptions inherent in the Guidelines.
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Spears, 555 U.S. at 266–67 (“[D]istrict courts are entitled to reject and vary
categorically from . . . Guidelines based on a policy disagreement with those
Guidelines.”). Browning seeks to stretch Kimbrough and Spears too far. Although
Kimbrough permits district court judges to second guess the Guidelines and impose
sentences that reflect judges’ disagreements with policies or conclusions reflected in
the Guidelines, Kimbrough does not require district courts to reject the Guidelines.
Nor does it require courts to conduct an independent inquiry into empirical
determinations underlying the Guidelines. Having reviewed the sentencing transcript,
we have no doubt that the district court was well aware of Browning’s position and
also well aware of its own authority to reject the 1:167 ratio. The court expressly
chose not to do so.
It was not legal error to rely upon the Guidelines, and it was not procedural
error to reject Browning’s argument in this regard when calculating the advisory
Guidelines range or when assessing the § 3553(a) factors. Further, the belowGuidelines sentence was not substantively unreasonable. See Gall v. United States,
552 U.S. 38, 51 (2007) (assessing substantive reasonableness under the abuse-ofdiscretion standard). The court viewed Browning as particularly incorrigible and as
failing to own up fully to the illegality of his scheme. The court noted repeatedly that
the government conceded a drug quantity far below what seized drugs and records
likely would have supported. The court also rejected as incredible Browning’s
purported belief of the legality of his actions, given the scale of the profits he
achieved through his sales of synthetic cannabinoids. Further, the court emphasized
that Browning continued dealing in illegal substances while on pretrial supervision.
We find no abuse of discretion in the court’s selection of an overall sentence.
We affirm the judgment of the district court.
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