IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31427

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RICHARD JOSEPH BUSWELL,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:12-CR-146

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

Richard Joseph Buswell pleaded guilty to one count of conspiracy to 

distribute and possess with the intent to distribute AM-2201, a controlled 

substance analogue, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(c). 

The district court sentenced Buswell to 103 months of imprisonment followed 

by three years of supervised release. He challenges this sentence on several 

grounds. We AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 11, 2015

Lyle W. Cayce

Clerk

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I.

Richard Joseph Buswell was a member of the same drug distribution 

conspiracy that is the subject of our concurrently filed opinion in United States 

v. Malone.1 As we describe in Malone,2 Buswell was near the bottom of the 

distribution pyramid. Co-defendants Thomas Malone, Jr. and Drew T. Green 

sold AM-2201—a synthetic cannabinoid—to co-defendants Boyd A. Barrow 

and Joshua Espinoza. Barrow and Espinoza in turn used AM-2201 to produce 

“Mr. Miyagi,” a product designed to mimic marijuana. Soon after a trade show 

in Las Vegas, Barrow and Espinoza began supplying Buswell with Mr. Miyagi. 

Buswell distributed Mr. Miyagi, both directly and through franchisees, at 

stores throughout Louisiana. 

In May 2012, a federal grand jury in the Western District of Louisiana 

returned an indictment charging Barrow, Espinoza, and Buswell with one 

count of conspiracy to distribute a Schedule I controlled dangerous substance

analogue. Buswell reached a plea agreement with the Government in July 

2013. Pursuant to this agreement, Buswell pleaded guilty to the count of 

conspiracy in exchange for the Government’s promise not to prosecute him for 

any other offenses related to the AM-2201 distribution scheme. In December 

2014, the district court sentenced Buswell to 103 months of imprisonment 

followed by three years of supervised release. 

II.

Buswell raises four claims of error: (1) the district court erred in using a 

1:167 ratio to convert AM-2201 into marijuana; (2) the district court erred in 

granting safety valve reductions to his co-defendants; (3) the district court 

awarded an unreasonably small § 5K1.1 departure; and (4) the district court 

 

1 No. 14-31426 (5th Cir. Dec. 11, 2015). 2 Id. at 2.

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abused its discretion in ordering that his sentence run consecutively to an 

earlier sentence received for securities fraud. We discuss each claim of error 

below.

A.

Buswell argues that the district court erred in using a 1:167 ratio to 

convert AM-2201 into marijuana. We reject this claim for the same reasons 

expressed in United States v. Malone.3 To the extent Buswell suggests that 

the district court failed to appreciate its discretion under Kimbrough v. United 

States4 to vary from this ratio, we also reject this claim for the same reasons 

expressed in Malone.5

B.

Buswell next argues that the district court erred in granting safety-valve 

reductions to several co-defendants under U.S.S.G. § 2D1.1(b)(17). Though 

Buswell concedes that he was not eligible for such a reduction, he contends 

that the district court created an unwarranted sentencing disparity by 

erroneously awarding safety-valve reductions to his co-defendants.6 That is, 

Buswell asserts that he should receive a safety-value reduction—even though 

he is not eligible—because several co-defendants received such a reduction—

even though they were not eligible. We disagree. This is an appeal of Buswell’s 

sentence, not those of his co-defendants. As a result, the only relevant question 

is whether the district court properly concluded that Buswell was not entitled 

to a safety-valve reduction—which it did. Assuming without deciding that the 

 

3 Id. at 10. 4 552 U.S. 85 (2007).

5 No. 14-31426, slip op. at 10-14. 6 Buswell argues that his co-defendants were not eligible because allegedly there was 

evidence that (1) the offense “result[ed] in death or serious bodily injury”; and (2) that the codefendants were “organizer[s], leader[s], manager[s], or supervisor[s] of others in the 

offense.” See U.S.S.G. § 5C1.2(a) (listing disqualifying conditions).

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district court erred with respect to his co-defendants, Buswell is not entitled to 

benefit from this mistake.7 To the extent Buswell urges more generally that 

his sentence is disproportionate because his co-defendants received similar or 

shorter sentences despite distributing significantly more AM-2201, we also 

reject this argument. Though Buswell is correct that he received a longer

sentence than some of his distributors, there is no dispute that the district 

court properly applied the Drug Quantity Table to the facts of this case.8 As a 

result, any disparity is a product of the Sentences Guidelines, and thus 

“justified.”9 

C.

Buswell’s third claim is that the district court awarded an unreasonably 

small § 5K1.1 departure. This claim encompass two sub-arguments: (1) the 

district court improperly relied on non-assistance-related factors to reduce the 

extent of his § 5K1.1 departure; and (2) the district court should have awarded 

a greater § 5K1.1 departure given his substantial assistance. Neither 

argument is persuasive. Though this Court has held that “the extent of a 

§ 5K1.1 or § 3553(e) departure must be based solely on assistance-related 

concerns,”10 there is no evidence in the record that the district court considered 

non-assistance related concerns in determining the extent of Buswell’s § 5K1.1 

departure. Buswell concedes this point, but asserts that the district court must 

 

7 See Kinnard v. United States, 313 F.3d 933, 936 (6th Cir. 2002) (“The fact that one 

defendant received a benefit to which he was not entitled (i.e., a lower sentence based on a 

weight that was not properly relied on by the sentencing court), does not entitle another 

defendant to the benefit of the same mistake.”); see also United States v. Peddie, 990 F.2d 

626, at *1-2 (5th Cir. 1993) (precedential under 5th Cir. R. 47.5.3) (rejecting—in the context 

of a § 2255 proceeding—the relevance of appellant’s argument that the district court 

“erroneously” departed downward on behalf of a co-defendant); United States v. Salley, 149 

F.3d 1172, at *1 (4th Cir. 1998) (unpublished table decision).

8 See U.S.S.G. § 2D1.1(c).

9 See United States v. Nichols, 376 F.3d 440, 443 (5th Cir. 2004).

10 United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006).

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have considered such factors given the small size of his departure.11 This 

assumption, however, is inconsistent with “the presumption that district 

courts know the applicable law and apply it correctly.”12 And even if we were 

to indulge it, we would still reject Buswell’s claim for the same reasons 

expressed in United States v. Malone.13 We cannot even consider Buswell’s 

second argument that his § 5K1.1 departure was simply too small. As we 

explain in Malone,14 this Court lacks jurisdiction over an unadorned challenge 

to the extent of a § 5K1.1 departure.15 

D.

Buswell’s final claim is that the district court abused its discretion in 

deciding that his sentence should run consecutively to an earlier sentence 

received for securities fraud. Though there is little in the record about the 

securities fraud case, Buswell’s presentence report reflects that he was a 

licensed stock broker prior to his incarceration. In October 2011, he was 

arrested for defrauding some of his clients. He eventually pleaded guilty to 

conspiracy to commit securities fraud, investor advisor fraud, wire fraud, and 

mail fraud. In September 2014, he was sentenced to 126 months of 

imprisonment followed by three years of supervised release. At his sentencing 

for the case presently before this Court—which took place in December 2014—

Buswell argued that his sentence for conspiracy to distribute AM-2201 should 

run concurrently to his sentence for securities fraud because, among other 

reasons, the securities fraud offense was “relevant conduct” to the instant 

 

11 Buswell’s Opening Brief at 59.

12 United States v. Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir. 2000).

13 No. 14-31426, slip op. at 14-16 (5th Cir. Dec. 11, 2015). 14 Id. at 16-17. 15 United States v. Hashimoto, 193 F.3d 840, 843 (5th Cir. 1999) (per curiam) (“We 

would thus clearly lack jurisdiction over Hashimoto’s case if he was challenging . . . the extent 

of a departure that was made . . . .”).

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offense. The district court disagreed and ordered that Buswell’s sentence run 

consecutively to his sentence for the securities fraud case.

On appeal, Buswell acknowledges that the district court had discretion 

to order that the two sentences run consecutively,16 but asserts that the district 

court abused its discretion in doing so. Under U.S.S.G. § 5G1.3(d), the district 

court had the discretion to decide whether the two sentences should run 

consecutively or concurrently “to achieve a reasonable punishment for the 

offense.” The Sentencing Guidelines instruct the district court to consider a 

number of factors, including the 18 U.S.C. § 3553(a) factors, in making this 

decision.17 Buswell effectively argues that the district court should have 

weighed these factors differently. As we have said many times before, such an 

argument is an insufficient basis for reversal.18 Buswell is also wrong to

suggest that the Government has breached the plea agreement by defending 

the consecutive nature of his sentence on appeal. Under a fair reading of the 

agreement,19 the Government promised only to “not oppose the defense 

request” that the two sentences run concurrently before the district court—not 

to take any particular position before this Court.20

III.

For the reasons above, we AFFIRM. Buswell’s motion to supplement the 

record on appeal is DENIED.

 

16 See Buswell’s Reply Brief at 15-16.

17 U.S.S.G. § 5G1.3 cmt. n.4(A).

18 See, e.g., United States v. Aldawsari, 740 F.3d 1015, 1021-22 (5th Cir. 2014); United 

States v. Heard, 709 F.3d 413, 435 (5th Cir. 2013).

19 See United States v. Hebron, 684 F.3d 554, 558 (5th Cir. 2012) (“In evaluating 

whether a plea agreement was breached, we apply general principles of contract law, 

construing the terms strictly against the government as drafter, to determine ‘whether the 

government’s conduct is consistent with the defendant’s reasonable understanding of the 

agreement.’” (quoting United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008))).

20 See, e.g., United States v. Willis, 219 F. App’x 372, 373 (5th Cir. 2007); United States 

v. Ballard, 220 F.3d 586, at *1 (5th Cir. 2000) (unpublished table decision).

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