United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-3657

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Matthew Paul Browning

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the Western District of Missouri - Springfield

____________

 Submitted: June 13, 2016

 Filed: August 8, 2016

[Unpublished]

____________

Before SMITH, MELLOY, and GRUENDER, Circuit Judges.

____________

PER CURIAM.
Matthew Paul Browning appeals his sentence arguing the district court erred

1

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

The Honorable M. Douglas Harpool, United States District Judge for the

1

Western District of Missouri.

-2-
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 isflawed as a matter ofscience and

policy and that the district court erred by employing the ratio. We previously have

held the ratio is appropriate for caseslike 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 ofthe sentencing commission’s determination ofthe 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. 

-3-
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. 

______________________________

-4-