UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA,
Pl aintiff - Appellee,

v. FIDAL ABDELJAWAD,
De fendant - Appellant. No. 18-2121 (D.C. No. 1:15- CR-03394-WJ-1) (D.N.M.)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________ Before BACHARACH , McHUGH , and SEYMOUR , Circuit Judges.

__________________ _______________ This appeal involves se ntencing for drug crim es. When deciding on the sentence, district courts ordinarily consider the potency and weight of the drugs. To aid courts in consid ering potency and weight, the U.S. Sentencing Commission ha s created guide lines. But new dr ugs frequently enter the market, 1 creating gaps in the Sentencing Commission’s

* This order and judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

1 See United States v. Ono , 997 F.2d 647 , 649 (9th Cir. 1993) (noting that “[t]he illicit drug i ndustry is constan tly changing and experimenting to create new ‘designer drug s,’” preventing the Se ntencing Commission from FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 handiwork. An example is the emergence of synthetic marijuana, which was involved in Mr. Abde ljawad’s crimes. Synthe tic marijuana is the combination of synthetic cannabinoid, which is a controlled substance, and inert plant material. At the time of Mr. Abdeljawad’s sentencing, the gu idelines did not specify how to consider mixtures containing synthetic cannabinoid. So the district court had to decide how to ha ndle this gap in the guidelines. The district court decided to handle th is gap by excludi ng the inert plant material and considering only the synthetic cannabinoid. Mr. Abdeljawad argues that the district court should ha ve included the in ert plant material. We disagree. 1. When gaps exist, the di strict court must find an equivalent drug from a list of controlled substances. To decide on the sentence, the di strict court must determine the guideline range for the applicable ye ar. (Here, the app licable year is 2017.) 2 To determine this range, the court considers th e drug weight. See U.S. Sentencing Guidelin es Manual § 2D1.1 cmt. n.5 (U.S. Sentencing Comm’n 2016).

“list[ing] or predict[ing] every potential chemical composition that yields a new drug”).

2 In 2017, however, the U.S. Sent encing Commission did not publish a new set of the guidelines. The Commi ssion instead continued to use the 2016 version throughout 2017.3 But different drugs may weigh the sa me yet differ dramatically in potency. Given these variations in potency, the Sent encing Commission provides two lists that guide consideration of relatively common drugs: (1) a drug-quantity table and (2) a drug-equivalency table. Id. § 2D1.1(c) (drug-quantity table), cm t. n.8(D) (drug-equivalency table). The drugquantity table lists the base-offense le vel, which is tri ggered by the type and weight of the controlled substan ce; and the drug-equivalency table provides a list to conver t the weights for various drugs into a uniform system of measurement. But many drugs are omitted from both lists. When the defendant’s drug is omitted , it must be comp ared to one of the drugs on th e Sentencing Commission’s lists. 3 For this comparison, the Sentencing Commission specifies that both the actual dr ug and the listed drug must be “contr olled substance[s].” Id. § 2D1.1 cmt. n.6. The actual

3 The application note requires compar ison to “the most closely related controlled substance referenced in this guideline .” U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.6 (U.S. Sent encing Comm’n 2016) (emphasis added). Some circuits treat the italicized ph rase (“in this guideline”) as a reference to the drug-equivalency table. United States v. Ramos , 814 F.3d 910, 918 (8th Cir. 2016). Other circuits treat this phrase as a reference to either of the two lis ts (either the drug-quantity table or the drug-equival ency table). United States v. Moreno , 870 F.3d 643, 645– 46 (7th Cir. 2017); United States v. Giggey , 867 F.3d 236, 239 (1st Cir. 2017). This difference would not affect ou r analysis. Both sides agree that the court had to compare Mr. Abdeljawad’s drug with THC (as well as marijuana). THC appears in the list fo r the drug-equivalen cy table but not the list for the dr ug-quantity table.4 drug is described as “a controlled substance that is not specifically referenced in this guideline.” Id. (emphasis added). The court must compare this “controlled substance” to another “controlled substance” that
is “referenced in th is guideline.” Id. 2. The district court considered only the synthetic cannabinoid (without the plant material ) to make th e comparison. This case requires the Court to decide how to conduct this comparison when the case involves synthetic marijuana. Until recently, marijuana consisted of plant material that naturally contains THC. Now, however, marijuana can also be synthetic. Synthetic marijuana is a mixture of synthetic cannabinoid (a synthetic su bstance that binds to the same brain cell receptors as THC) and inert plan t material. The inert plant material serves as a carrier medium for some one to use the synt hetic cannabinoid. Prior to 2018, natural marijuana and THC appear ed in the Sentencing Commission’s lists, but synthetic cannabinoid was omitted. U.S. Sentencing Guidelines Manual § 2D1.1(c) (drug- quantity table), cmt. n.8(D) (drug-equivale ncy table) (U.S. Sent encing Comm’n 2016). Notwithstanding this omission, the di strict court had to calculate the converted drug weight of Mr. Abdeljawad’s drug in order to use the drugquantity table. To calculate the conv erted drug weight, the court had to determine which listed controlled substance on the drug-equival ency table most5 closely resembled Mr. Abdeljawad’s drug. Among the possibilities, Mr. Abdeljawad picked marijuana and the government picked THC. 3. The inert plant material was properly excluded from the phrase “controlled substance that is not specifically referenced.” Before these drugs could be compar ed, the district court had to apply Application Note 6, which instructs co urts on how to ca lculate the weight of drugs omitted from the Sentencing Commission’s lists. The application note refers to a drug omitted from these lists as “a controlled substance that is not specifically referenced in this guid eline.” U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.6 (U.S. Sentenci ng Comm’n 2016). The district court had to interpret this phrase in th e context of Mr. Abdeljawad’s case. Does this phrase refer to

 just the synthetic cannabinoid or

 the mixture of the synthetic ca nnabinoid and th e inert plant material? The district court decided to consid er just the synthetic cannabinoid (without the inert plant material). A. Ordinary Meaning In considering this decision, we must interpre t the guidelines. Because interpreting the guidelines involves a legal question, we engage in6 de novo review. United States v. Archuleta , 865 F.3d 1280, 1285 (10th Cir. 2017). Conducting this review requires us to dete rmine the Se ntencing Commission’s intent. United States v. Rivera-Oros , 590 F.3d 1123, 1129 (10th Cir. 2009). To do so, we use “accepted rules of statutory construction.” United States v. Marrufo , 661 F.3d 1204, 1207 (10th Cir. 2011) (quoting United States v. Nacchio , 573 F.3d 1062, 1066 (10th Cir. 2009)). These rules generall y involve consideration of a guideline term’s ordinary meaning. United States v. Thomas , 939 F.3d 1121, 1123 (10th Cir. 2019). We must interpret the term “co ntrolled substance that is not specifically referenced in this guideline.” This ph rase can be broken down into a noun (“controll ed substance”) and a restrict ive modifier (“that is not specifically referenced in this gu ideline”). The noun itself (“controlled substance”) is undefined in the guidelines. A nd “[w]hile the word ‘controlled’ may have a plain and ordina ry meaning, whether a substance is ‘controlled’ must, of necessity, be tether ed to some state, federal, or local law.” United States v. Leal-Vega , 680 F.3d 1160, 1167 (9th Cir. 2012) (footnote omitted). We thus interpret the term “controlle d substance” based on its legal definition.7 The legal definition of “controlled substa nce” comes from the Controlled Substances Ac t. 21 U.S.C. § 802(6); 4 see Leal-Vega , 680 F.3d at 1167 (holding “that the te rm ‘controlled substance, ’ as used in the ‘drug trafficking offense’ defin ition in U.S.S.G. § 2L1.2, means those substances listed in the [Controlled Substances Act]”). This statute defines a “controlled substance” as “a drug or other substance . . . included in schedule I, II, III, IV, or V of [the Act].” 21 U.S.C. § 802(6). Schedule I includes synthetic cannabinoid (wit hout the inert plant material). Id. § 812 sched. I(d). But none of the schedules include th e mixture of synthetic cannabinoid and iner t plant material. Given the absence of the mixture in any of the Act’s schedules, the mixture can’t constitute a “controlled substance.” And if the mixture isn’t a “controlled substance,” it can’t fall into an even na rrower class of controlled substances that are “not specifically referenced in this guideline.” 5

4 The Sentencing Commission showed its intent to use the Controlled Substances Act’s definition by usin g the Act to create a “drug-quantity table,” which standardizes the courts’ consideration of common drugs. See U.S. Sentencing Gu idelines Manual § 2D1.1 cmt. n.8(A) (U.S. Sentencing Comm’n 2016) (explaining that the Sentencing Commission used the Controlled Substances Act to cr eate the drug-quantity table).

5 Mr. Abdeljawad points out that Application Note 6 also requires consideration of “[w]hether a lesser or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the ce ntral nervous system as a controlled8 B. Comparison of Chemical Structures of the Actual and Listed Drugs The meaning of the term “controlle d substance” comes not only from the Controlled Substances Act but also from the context of the criteria in Application Note 6. These criteria in clude a comparison of the chemical structures for the actual drug a nd the listed drug. U.S. Sentencing
Guidelines Manual § 2D1.1 cmt. n. 6(A) (U.S. Senten cing Comm’n 2016)

. Suppose that we adopt Mr. Abdeljawad’s interpretation , including the inert plant material in the comparisons to THC an d marijuana. If we were to do so, we’d cons ider the chemical structure of the inert plant material. But this material serves only as the carrier me dium for the synthetic cannabinoid. Why would the carrier medium’s chemical structure be pertinent? If the chemical structur e of THC or marijuana matched the chemical structure of the synthetic cannabinoid, that match should be enough. Comparing th e chemical structure of the carrier medium to marijuana or THC would serve no conceivable purpose.

substance referenced in this guideline.” U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.6(c) (U .S. Sentencing Comm’n 2016) . According to Mr. Abdeljawad, this crite rion “does not permit th e sentencing judge to disregard controlled substances that are, by their ve ry nature, mixtures.” Appellant’s Opening Br. at 17 (quoting United States v. Ramos , 814 F.3d 910, 922 (8th Cir. 2016) (Bri ght, J., concurring in part and dissenting in part) (emphasis added)). But synthe tic marijuana is not a “controlled substance.” Synthetic marijuana th us can’t constitute a “controlled substance that is not specifically referenced in th is guideline.”9 Given the context of Application Note 6’s criteria, it would make little sense to consider the inert plant material as part of Mr. Abdeljawad’s drug. C. The Sentencing Commission’s Alleged Intent to Increase Punishment Based on the Concentration of THC Considering only the synthetic cannabinoid as the “controlled substance that is not speci fically referenced in this guidelin e,” the district court compared the synt hetic cannabinoid to ma rijuana and THC. The district court found that between the two controlle d substances, synthetic cannabinoid more closely resembled THC. Selecting THC catapulted the guideline range, making every gram of synthetic cannabinoid th e equivalent of 167 gram s of marijuana. Mr. Abdeljawad argues that this astronomic increase in weight undermines the Sentencing Commission’s in tent to punish based on the concentration of THC. According to Mr. Abdeljawad, the Sentencing Commission intended

to mete out the most severe punishment for THC, followed by hashish oil (which is more diluted than THC), th en by hashish (which is more diluted than hashish oil). U.S. Se ntencing Guide lines Manual § 2D1.1 cmt. n.8(D) (U.S. Sentenci ng Comm’n 2016)

. But later events show th at a multiplier of 167 is consistent with the Sentencing Commission’s intent. After Mr. Abdelja wad was sentenced, the Commission amended the drug-equivalency table to include synthetic10 cannabinoid. In this am endment, the Commission assigned each gram of synthetic cannabinoid the marijuana equivalent of 167 grams—precisely the same result as if the court we re to consider THC as the most comparable controlled substance. U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.8( D) (U.S. Senten cing Comm’n 2018) ; see United States v.
Koss , 812 F.3d 460, 471 (5th Cir. 2016) (“[T]he pl ain language of the Guidelines states that mixtures or substances containing a detectable amount of THC are properly calculat ed using the 1:167 gram ratio.”). Given this change in the guidelines, we view the district court’s exclusion of the inert plant material as consis tent with the Sent encing Commission’s intent.
D. Absurdity of Ruling Out Other Possible Candidates for Comparison Mr. Abdeljawad also argues that our interpretation leads to an absurdity because it would prevent consideration of marijuana as the equivalent of any mixture of a TH C-based substance and inert plant material. We reject this argument. The issue before the district cour t was simply how to define Mr. Abdeljawad’s drug: Was it just the synthetic cannabinoid or did it include the inert plant material? Mr . Abdeljawad suggests that excluding the inert plant material would prevent any court from considering marijuana as the equivalent of a mixture of inert plan t material and synt hetic cannabinoid.11 If this suggestion is right, however, including the inert plant material would presumably prevent a court from considering THC as the equivalent. So regardless of whether the Court consid ers inert plant mate rial as part of the controlled substance, the decisi on could affect all future cases involving consideration of synthetic marijuana. 6
E. Dilution of the THC Mr. Abdeljawad also argues that (1) our in terpretation l eads to unjust results because his synthetic cannabinoid was diluted by inert plant material and (2) the dilution should soften his base-offense level. But our interpretation accords with “the language and design of the [guidelines] as a whole.” K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988). Even if Mr. Abdeljawad were correct that the inert plant material diluted his synthetic cannabinoid, the guidelines generally treat controlled substances identically regardless of their dilution. For example, a defendant bearing responsi bility for 10 kilograms of marijuana with 1% THC would be assigned the same base-offense level as a defendant

6 Mr. Abdeljawad also argues that the district court’s approach would never permit selection of hashish or hashish oil as the equivalent of synthetic marijuana. In district court, however, Mr. Abdeljawad picked marijuana and the government picked THC. See Part 2, above. So the district court had no reason to co mpare Mr. Abdeljawad’s controlled substance to hashish or hashish oil. We thus express no opinion on whether hashish or hashish o il would resemble Mr. Abdeljawad’s controlled substance more cl osely than THC.12 responsible for 10 kilogr ams of marijuana with 99% THC (even though the marijuana in the first cas e was far more diluted). See Chapman v. United
States , 500 U.S. 453, 461 (1991 ) (“Congress adopted a ‘mar ket-oriented’ approach to punishing dr ug trafficking, under whic h the total quantity of what is distributed, rather than the amount of pu re drug involv ed, is used to determine the le ngth of the senten ce.”). The guidelin es thus do not generally account for diluti on in connection with the base-offense level. See United States v. Upthegrove , 974 F.2d 55 , 56 (7th Cir. 1992) (“The Sentencing Commission made an explicit decision to focus on the weight and not the purity of the drugs in determining the o ffense level.”); United States v. Skelton , 901 F.2d 1204, 1205 (4th Cir. 1990) (stating that “the purity of the drug is not usually a consider ation for purposes of determining the base offense level”). 7
F. The Rule of Lenity Mr. Abdeljawad also argu es that if the guidel ines are unclear, the rule of lenity should give him the benefit of any doubt. But the guidelines are clear. They specify that the actual drug must be a “controlled substance,” which can refer only to the synthetic cannabinoid (not the

7 The guidelines in stead account for purity through departures. See U.S. Sentencing Gu idelines Manual § 2D1.1 cmt. n. 27 (U.S. Sentencing Comm’n 2016). For example, the guidelines permit an upward departure if the defendant possesses unusually pure drugs. Id. § 2D1.1 cmt. n.27(C).13 mixture of the synthetic cannabinoid and inert plant material). Given the clarity of this language, we have no reason to apply the rule of lenity. See United States v. Randall , 472 F.3d 763, 766–67 (10th Cir. 2006) (concluding that the rule of lenity did not appl y because the guideline provision was unambiguous). * * * The phrase “controlled substance that is not specifi cally referenced in this guideline” refers to syntheti c cannabinoid, not the mixture of synthetic cannabinoid and inert plant material. Becau se the mixture isn’t a controlled substance, the mixture can’t constitute a “controlled substance that is not specifically refe renced in this guideline.” The district court thus did not err in using only the synthetic cannabinoid to decide the equivalent controlled substance level. Affirmed. Entered for the Court

Robert E. Bacharach Circuit Judge