1 

10-2050-cr(L) 

United States v. Figueroa 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

August Term 2010 

(Submitted: May 19, 2011 Decided: May 26, 2011) 

Docket Nos. 10-2050-cr(L); 10-2051-cr(CON) 

UNITED STATES OF AMERICA, 

Appellee, 

-v.- 

 

BAYRON DAVID FIGUEROA, a.k.a David Bayron Figueroa, 

JONATHAN ACEBEDO-GARCIA, 

Defendants-Appellants, 

FABIAN ENRIQUE ALVARADO-AYALA, a.k.a Fabian Alvarado, 

 Defendant. 

Before: MINER, CABRANES, and STRAUB, Circuit Judges. 

______________ 

Bayron David Figueroa and Jonathan Acebedo-Garcia appeal from May 17, 2010 

judgments of conviction entered by the United States District Court for the Northern 

District of New York (Glenn T. Suddaby, Judge), for possession with intent to distribute a 

mixture of 3, 4-Methylenedioxymethamphetamine (“MDMA”), methamphetamine, and NBenzylpiperazine (“BZP”)—all Schedule I controlled substances—in violation of 21 U.S.C. 

§§ 841(a)(1) and 841(b)(1)(C) and 21 U.S.C. § 846. We hold that there is insufficient 

evidence in the record to conclude, pursuant to United States Sentencing Guidelines § 

2D1.1, that the appropriate substitute for the mixture contained in the pills found in 

defendants’ possession is MDMA. In a non-precedential order filed simultaneously herewith 

we affirm the order of the District Court denying defendants’ motion to suppress and its 

judgments of conviction, but we now remand the cause to the District Court with 

instructions to conduct an evidentiary hearing to determine the composition of the pills for 

the purposes of U.S.S.G. § 2D1.1.

 
2 

 Timothy Austin, Assistant Federal Public Defender

(Molly Corbett, on the brief), for Alexander Bunin, 

Federal Public Defender for the Northern District of 

New York, Albany, NY, for Defendant-Appellant Bayron 

David Figueroa. 

 Brendan White, White & White, New York, NY, for 

 Defendant-Appellant Jonathan Acebedo-Garcia. 

Rajit S. Dosanjh, Assistant United States Attorney (Daniel C. 

Gardner, Assistant United States Attorney, on the brief), 

for Richard S. Hartunian, United States Attorney for 

the Northern District of New York, Syracuse, NY, for 

Appellee United States of America. 

JOSÉ A. CABRANES, Circuit Judge: 

The question presented is whether the District Court engaged in clearly erroneous 

fact-finding that led to a procedurally unreasonable sentence when it determined that the 

controlled substance referenced in the United States Sentencing Guidelines (“U.S.S.G.,” 

“Sentencing Guidelines,” or “Guidelines”) that is most closely related to the mixture found 

in defendants’ possession—which included N-Benzylpiperazine (“BZP”) and trace amounts 

of methamphetamine, 3, 4-Methylenedioxymethamphetamine (“MDMA”), caffeine, 

procaine, and 3–Trifluoromethylphenylpiperazine (“TFMPP”)—is MDMA, or “ecstasy.” 

Defendants-appellants Bayron David Figueroa and Jonathan Acebedo-Garcia appeal 

from May 17, 2010 judgments of conviction entered by the United States District Court for 

the Northern District of New York (Glenn T. Suddaby, Judge).1 In a non-precedential order 

filed simultaneously herewith we affirm the orders of the District Court denying defendants’ 

motions to suppress and affirm the District Court’s judgments of conviction. In this 

opinion, we now also hold that there is insufficient evidence in the record to conclude that 

 

1 On appeal, Acebedo-Garcia incorporates by reference Figueroa’s challenge to the reasonableness of the 

sentence imposed by the District Court. [JAG 21] We therefore focus on Figueroa’s proceedings and record on 

appeal, while noting that Acebedo-Garcia’s proceedings were substantially identical for the purposes of our 

review. 
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the appropriate substitute under the Sentencing Guidelines for the mixture contained in the 

pills found in defendants’ possession is MDMA. The cause is therefore remanded with 

instructions to conduct an evidentiary hearing to determine the composition of the pills for 

the purposes of U.S.S.G. § 2D1.1. 

BACKGROUND

 In February 2009, approximately 23,000 blue and white pills were found in 

defendants’ possession during the search of their vehicle following a traffic stop in upstate 

New York. The pills, which tested positive for characteristics of ecstasy in the field, were 

later verified at a Drug Enforcement Administration (“DEA”) laboratory to be comprised of 

BZP, along with “unmeasurable” amounts of methamphetamine, MDMA, caffeine, procaine, 

and TFMPP. A small fraction of the pills contained only BZP and “unmeasurable” amounts 

of MDMA and caffeine. In January 2010, after the District Court denied defendants’ 

motions to suppress evidence—including the pills—obtained during the search of their 

vehicle, defendants pleaded guilty to possession with intent to distribute a mixture of 

MDMA, methamphetamine, and BZP in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) 

and 21 U.S.C. § 846.

Because BZP is a “controlled substance that is not specifically referenced” in the 

Guidelines, the United States Probation Office (“Probation Office”) calculated defendants’ 

base offense level by using the “the marihuana equivalency of the most closely related 

controlled substance referenced in” the Sentencing Guidelines. U.S.S.G. § 2D1.1, cmt. n.5. 

After concluding that “BZP is designed to mimic the psychoactive effects of MDMA,” the 

Probation Office recommended, in its Presentence Investigation Report (“PSR”) for each of 

the defendants whose appeal is now before us, a base offense level using the marijuana 

equivalency for MDMA under § 2D1.1. 

 At sentencing, the parties disputed whether the appropriate substitute under 
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§ 2D1.1 for the mixture found in defendants’ possession is MDMA. The government 

argued that 

the chemical possessed by the Defendant (BZP mixed with 

[TFMPP]) is most closely related to MDMA because it has a 

substantially similar effect on the central nervous system. 

According to the Drug Enforcement Administration (DEA) 

Forensic Laboratory in New York City, BZP is mixed with 

TFMPP for the specific purpose of mimicking the effects of 

MDMA. While BZP by itself is not necessarily sufficient, the 

mixture of the two chemicals together causes an effect on the 

central nervous system similar to MDMA. TFMPP slows the 

metabolization of BZP causing the effects of BZP to be more 

potent and last longer. According to the DEA, the 

BZP/TFMPP is being sold by drug traffickers as MDMA at 

the same price and by the same name, “ecstasy.” 

Rebuttal Sentencing Memo. of the United States 2 (May 13, 2010). Figueroa, in turn, argued, see 

note 1 ante, that the “the only measurable controlled substance in the pills was [BZP],” and 

that because the government had conceded that BZP by itself is not necessarily sufficient to 

cause an effect on the central nervous system similar to MDMA, the government had failed 

to meet its burden of establishing that MDMA is the correct substitute for BZP under the 

Guidelines. Sentencing Memo. in Reply to the Government’s Rebuttal Sentencing Memo. 2 (May 14, 

2010). Figueroa also requested an evidentiary hearing to evaluate the underlying information 

in the DEA laboratory report and specifically to consider whether BZP alone or with trace 

quantities of other drugs—as opposed to the combination of BZP and TFMPP—should be 

treated as MDMA for the purposes of determining the most closely related substance under 

the Guidelines. Transcript of Sentencing Proceeding at 13-14, United States v. Figueroa, 09–

cr–145 (N.D.N.Y. May, 21 2010). 

The District Court concluded that no evidentiary hearing was necessary to credit the 

DEA lab reports. Id. Moreover, the District Court observed that the fact that BZP and 

MDMA are “treated as interchangeable drugs” on “the street” was a sufficient basis upon 

which to conclude that the Probation Office’s calculation was appropriate for BZP in the 
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absence of TFMPP. Accordingly, the District Court denied Figueroa’s request for an 

evidentiary hearing and sentenced him principally to a term of imprisonment of 63 months, 

which was within the Guidelines range.2 Figueroa filed a timely notice of appeal.

 On appeal, defendants argue that the District Court engaged in clearly erroneous factfinding that led to a procedurally unreasonable sentence when it determined that the 

controlled substance referenced in the Sentencing Guidelines most closely related to the 

mixture found in the pills in defendants’ van is MDMA, also known as ecstasy. 

DISCUSSION

 We review a criminal sentence for “unreasonableness,” which “amounts to review for 

abuse of discretion.” United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (in banc) 

(quotation marks omitted); see also Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (explaining 

“abuse of discretion”). “Reasonableness review requires an examination of the length of the 

sentence (substantive reasonableness) as well as the procedure employed in arriving at the 

sentence (procedural reasonableness).” United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009). 

“Procedural error includes, among other things, selecting a sentence based on clearly 

erroneous facts.” United States v. DeSilva, 613 F.3d 352, 356 (2d Cir. 2010) (quotation marks 

omitted). 

 As we recently held in United States v. Chowdhury, a determination by a district court 

that the combination of BZP and TFMPP is most closely related to MDMA for the 

purposes of determining the appropriate marijuana equivalency under U.S.S.G. § 2D1.1 is 

not clearly erroneous. --- F.3d ---, No. 09-3442-cr, 2011 WL 590260, at *3 (2d Cir. Feb. 22, 

2011). However, as the government recognized in its sentencing memorandum in this case 

before the District Court, the holding in Chowdhury was premised on the fact that BZP—

 

2 Acebedo-Garcia was sentenced principally to a term of imprisonment of 51 months, which was within the 

Sentencing Guidelines range. 
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when combined with TFMPP—is most closely related to MDMA in light of the three-factor 

inquiry prescribed by § 2D1.1, cmt. n.5. Id. at *2 (noting, among other things, that the 

combination of BZP and TFMPP is sold on the street as MDMA because those substances, 

when combined, “mimic[ ] the effects of MDMA on the central nervous system” (quotation 

marks and alteration omitted)). Chowdhury, on the other hand, does not stand for the 

proposition that MDMA is the proper substitute for BZP alone. See id. at *3 (“[T]he 

substance in Chowdhury’s possession was not BZP alone, but a combination of BZP–

TFMPP that ‘is sold as MDMA, promoted as an alternative to MDMA and is targeted to the 

youth population.’” (quoting Schedules of Controlled Substances, 69 Fed. Reg. 12794–01, 

12795 (Mar. 18, 2004))). Indeed, United States v. Beckley, 715 F. Supp. 2d 743, 748 (E.D. 

Mich. 2010), and United States v. Rose, 722 F. Supp. 2d 1286, 1289 (M.D. Ala. 2010)—both of 

which we cited in Chowdhury—state that the substance most closely related to BZP in 

isolation is amphetamine, not MDMA. See Chowdhury, 2011 WL 590260, at *3. 

 Here, unlike in Chowdhury, the record on appeal does not allow us to conclude that 

the pills found in defendants’ van were a mixture of BZP and TFMPP containing a similar 

chemical structure to MDMA, designed to mimic the effects of MDMA, or containing a 

similar potency to MDMA. See U.S.S.G. § 2D1.1, cmt. n.5 (reviewing the factors the court 

must take into account to the extent practical in determining the most closely related 

substance under the Guidelines). Instead, the record appears to indicate that the substance 

was almost exclusively composed of BZP, with “unmeasurable” amounts of caffeine, 

methamphetamine, procaine, TFMPP, and MDMA itself. Indeed, the PSR prepared by the 

Probation Office, which the District Court adopted for purposes of sentencing, did not 

reference TFMPP as one of the substances in the mixture found in defendants’ possession, 

despite the fact that it was documented as occurring in “unmeasurable” quantities in the lab 

tests conducted by the DEA. In that context, the District Court’s reliance on the fact that 
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BZP and MDMA are “interchangeable” on “the street” is insufficient to justify the 

conclusion that MDMA is the appropriate substitute for BZP alone or with trace quantities 

of other substances pursuant to § 2D1.1. 

Although we certainly do not foreclose the determination that MDMA is the 

appropriate substitute for BZP alone, in the absence of an evidentiary hearing to determine 

the nature of the mixture, its chemical structure, and its intended neurological effects, the 

record on appeal does not permit us to determine whether the proper substitute is 

amphetamine (as Rose and Berkley might suggest), MDMA, or another substance on the Drug 

Equivalency Table, U.S.S.G. § 2D1.1, tbl. D. Accordingly, the best course of action is to 

remand to the District Court for an evidentiary hearing to determine the most closely related 

substance referenced in the Guidelines, pursuant to the criteria established under § 2D1.1, 

cmt. n.5. Furthermore, inasmuch as the parties inform us that the use of BZP, alone and in 

combination with other substances, to mimic the effects of other narcotics is increasingly 

prominent in certain parts of this Circuit, we direct the Clerk of the Court to forward a 

certified copy of this opinion to the Chairperson and Chief Counsel of the United States 

Sentencing Commission for whatever consideration they may deem appropriate. See United 

States v. Lenoci, 377 F.3d 246, 259 (2d Cir. 2004). 

Finally, we pause to note that defendants’ success on their sentencing claims may 

ultimately prove to be a Pyrrhic victory. As sometimes occurs in the era of the Sentencing 

Guidelines, defendants who appeal their sentences may face the possibility of a harsher 

punishment on remand. See, e.g., United States v. Bryce, 287 F.3d 249, 254–55 (2d Cir. 2002) 

(holding that imposition of a higher sentence after an appeal does not violate the Double 

Jeopardy Clause where the defendant had no settled expectation in the finality of the original 

sentence); cf. North Carolina v. Pearce, 395 U.S. 711, 723–25 (1969), overruled on other grounds by 

Alabama v. Smith, 490 U.S. 794 (1989) (holding that imposition of a higher sentence on 
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remand to punish a defendant for pursuing an appeal violates his due process rights). In this 

case, for example, challenging the use of MDMA may not inure to defendants’ advantage. 

Under the Drug Equivalency Table, one gram of MDMA is equal to 500 grams of marijuana. 

 7.2 kilograms of MDMA therefore equals 3,600 kilograms of marijuana, which indicates a 

base offense level of 34. U.S.S.G § 2D1.1, tbl. C (Drug Quantity Table) (associating “[a]t 

least 3,000 KG but less than 10,000 KG of Marijuana” with a base offense level of 34). 

However, one gram of amphetamine—which may be the appropriate substitute for BZP 

under § 2D1.1—equals 2 kilograms of marijuana. 7.2 kilograms of amphetamine therefore 

equals 14,400 kilograms of marijuana, which indicates a base offense level of 36. Id.

(associating “[a]t least 10,000 KG but less than 30,000 KG of Marijuana” with a base offense 

level of 36).3

In the normal course, when confronted with the possibility that appellants’ “victory” 

on appeal may actually result in a longer sentence than that initially imposed, we might seek 

to assure ourselves at oral argument that appellants were aware of those risks and prepared 

to proceed in any event. See United States v. Harrington, 354 F.3d 178, 186 n.5 (2d Cir. 2004). 

Here, however, because this case was submitted for decision without argument by the 

parties, we had no opportunity to do so. In the interest of justice, therefore, and in the 

exercise of our authority to “require such further proceedings to be had as may be just under 

the circumstances,” 28 U.S.C. § 2106, we will stay our mandate for an additional thirty days 

beyond the normal interval provided by Federal Rule of Appellate Procedure 41(a)—or 

beyond the disposition of any timely petitions for rehearing, whichever period is longer—to 

allow defense counsel to confer with appellants one final time regarding the risks of pursuing 

their sentencing challenges on appeal. See United States v. Palladino, 347 F.3d 29, 35 (2d Cir. 

 3 Acebedo-Garcia joins Figueroa’s challenge to the sentence imposed by the District Court only 

insofar as doing so is “beneficial to him.” We intimate no view regarding whether Acebedo-Garcia will have a 

remedy to avoid a harsher punishment in the event that his sentence on remand is higher than the one originally 
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2003); United States v. Bohn, 959 F.2d 389, 395 (2d Cir. 1992). Appellants shall have the 

option to withdraw their appeals at any time prior to the issuance of the mandate. See United 

States v. Velazquez, 246 F.3d 204, 217 (2d Cir. 2001) (staying issuance of the mandate for 30 

days “to afford the Appellants an opportunity to inform the Clerk within that time whether 

they wish to withdraw their pending appeals”). 

CONCLUSION

In sum: 

(1) In a non-precedential order filed simultaneously herewith we affirm the orders of 

the District Court denying defendants’ motions to suppress and affirm the District Court’s 

judgments of conviction. 

(2) For the reasons stated above, the sentences of Figueroa and Acebedo-Garcia are 

remanded to permit the District Court (a) to hold an evidentiary hearing in order to make a 

determination regarding the appropriate substitute, pursuant to § 2D1.1, cmt. n.5 of the 

Guidelines, for the mixture found in defendants’ possession, and (b) to resentence 

defendants in accordance with that determination. 

 (3) The Clerk of the Court is directed to forward a certified copy of this opinion to 

the Chairperson and Chief Counsel of the United States Sentencing Commission for 

whatever consideration they may deem appropriate. 

 (4) The mandate shall be stayed for thirty days, during which time appellants shall 

have the option to withdraw the instant appeals. 

(5) Pursuant to the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d 

Cir. 1994), any further appeal by these defendants will be referred to this panel. 

 imposed by the District Court.