UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

FIDAL ABDELJAWAD, 

 Defendant - 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 sentencing for drug crimes. When deciding on 

the sentence, district courts ordinarily consider the potency and weight of 

the drugs. To aid courts in considering potency and weight, the U.S. 

Sentencing Commission has created guidelines. But new drugs frequently 

enter the market,1

 creating gaps in the Sentencing Commission’s 

 *

 This order and judgment does not constitute binding 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 industry is constantly changing and experimenting to 

create new ‘designer drugs,’” preventing the Sentencing Commission from 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 27, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

handiwork. An example is the emergence of synthetic marijuana, which 

was involved in Mr. Abdeljawad’s crimes. Synthetic 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 guidelines did not 

specify how to consider mixtures containing synthetic cannabinoid. So the 

district court had to decide how to handle this gap in the guidelines. The 

district court decided to handle this gap by excluding the inert plant 

material and considering only the synthetic cannabinoid. Mr. Abdeljawad 

argues that the district court should have included the inert plant material. 

We disagree. 

1. When gaps exist, the district court must find an equivalent drug 

from a list of controlled substances. 

To decide on the sentence, the district court must determine the 

guideline range for the applicable year. (Here, the applicable year is 

2017.)2

 To determine this range, the court considers the drug weight. See 

U.S. Sentencing Guidelines 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. Sentencing Commission did not publish a 

new set of the guidelines. The Commission instead continued to use the 

2016 version throughout 2017. 
3 

But different drugs may weigh the same yet differ dramatically in 

potency. Given these variations in potency, the Sentencing 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), cmt. n.8(D) (drug-equivalency table). The drugquantity table lists the base-offense level, which is triggered by the type 

and weight of the controlled substance; and the drug-equivalency table 

provides a list to convert 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 compared to one of 

the drugs on the Sentencing Commission’s lists.3

 For this comparison, the 

Sentencing Commission specifies that both the actual drug and the listed 

drug must be “controlled substance[s].” Id. § 2D1.1 cmt. n.6. The actual 

 3

 The application note requires comparison to “the most closely related 

controlled substance referenced in this guideline.” U.S. Sentencing 

Guidelines Manual § 2D1.1 cmt. n.6 (U.S. Sentencing Comm’n 2016) 

(emphasis added). Some circuits treat the italicized phrase (“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 lists (either the drug-quantity table or 

the drug-equivalency 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 our 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 for the drug-equivalency table but not 

the list for the drug-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 this guideline.” Id. 

2. The district court considered only the synthetic cannabinoid 

(without the plant material) to make the 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 substance that binds to the same brain 

cell receptors as THC) and inert plant material. The inert plant material 

serves as a carrier medium for someone to use the synthetic cannabinoid. 

 Prior to 2018, natural marijuana and THC appeared 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-equivalency table) (U.S. Sentencing Comm’n 2016). 

Notwithstanding this omission, the district court had to calculate the 

converted drug weight of Mr. Abdeljawad’s drug in order to use the drugquantity table. 

 To calculate the converted drug weight, the court had to determine 

which listed controlled substance on the drug-equivalency table most 
5 

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 compared, the district court had to apply 

Application Note 6, which instructs courts on how to calculate 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 guideline.” U.S. Sentencing 

Guidelines Manual § 2D1.1 cmt. n.6 (U.S. Sentencing Comm’n 2016). 

 The district court had to interpret this phrase in the context of Mr. 

Abdeljawad’s case. Does this phrase refer to 

 just the synthetic cannabinoid or 

 the mixture of the synthetic cannabinoid and the inert plant 

material? 

The district court decided to consider just the synthetic cannabinoid 

(without the inert plant material). 

A. Ordinary Meaning 

In considering this decision, we must interpret the guidelines. 

Because interpreting the guidelines involves a legal question, we engage in 
6 

de novo review. United States v. Archuleta, 865 F.3d 1280, 1285 (10th Cir. 

2017). 

Conducting this review requires us to determine the Sentencing 

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 generally 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 “controlled substance that is not 

specifically referenced in this guideline.” This phrase can be broken down 

into a noun (“controlled substance”) and a restrictive modifier (“that is not 

specifically referenced in this guideline”). The noun itself (“controlled 

substance”) is undefined in the guidelines. And “[w]hile the word 

‘controlled’ may have a plain and ordinary meaning, whether a substance is 

‘controlled’ must, of necessity, be tethered 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 “controlled substance” based 

on its legal definition. 
7 

The legal definition of “controlled substance” comes from the 

Controlled Substances Act. 21 U.S.C. § 802(6);4 see Leal-Vega, 680 F.3d at 

1167 (holding “that the term ‘controlled substance,’ as used in the ‘drug 

trafficking offense’ definition 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 (without the inert plant material). Id. § 812 

sched. I(d). But none of the schedules include the mixture of synthetic 

cannabinoid and inert 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 narrower 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 using the Act to create a “drug-quantity 

table,” which standardizes the courts’ consideration of common drugs. See 

U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.8(A) (U.S. Sentencing 

Comm’n 2016) (explaining that the Sentencing Commission used the 

Controlled Substances Act to create 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 central nervous system as a controlled 
8 

B. Comparison of Chemical Structures of the Actual and Listed 

Drugs 

The meaning of the term “controlled substance” comes not only from 

the Controlled Substances Act but also from the context of the criteria in 

Application Note 6. These criteria include a comparison of the chemical 

structures for the actual drug and the listed drug. U.S. Sentencing 

Guidelines Manual § 2D1.1 cmt. n.6(A) (U.S. Sentencing Comm’n 2016). 

Suppose that we adopt Mr. Abdeljawad’s interpretation, including the 

inert plant material in the comparisons to THC and marijuana. If we were 

to do so, we’d consider the chemical structure of the inert plant material. 

But this material serves only as the carrier medium for the synthetic 

cannabinoid. Why would the carrier medium’s chemical structure be 

pertinent? If the chemical structure of THC or marijuana matched the 

chemical structure of the synthetic cannabinoid, that match should be 

enough. Comparing the 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 criterion “does not permit the sentencing judge to 

disregard controlled substances that are, by their very nature, mixtures.” 

Appellant’s Opening Br. at 17 (quoting United States v. Ramos, 814 F.3d 

910, 922 (8th Cir. 2016) (Bright, J., concurring in part and dissenting in 

part) (emphasis added)). But synthetic marijuana is not a “controlled 

substance.” Synthetic marijuana thus can’t constitute a “controlled 

substance that is not specifically referenced in this 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 specifically referenced in this guideline,” the district 

court compared the synthetic cannabinoid to marijuana and THC. The 

district court found that between the two controlled substances, synthetic 

cannabinoid more closely resembled THC. 

Selecting THC catapulted the guideline range, making every gram of 

synthetic cannabinoid the equivalent of 167 grams of marijuana. Mr. 

Abdeljawad argues that this astronomic increase in weight undermines the 

Sentencing Commission’s intent 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), then by hashish (which is more diluted 

than hashish oil). U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.8(D) 

(U.S. Sentencing Comm’n 2016). 

But later events show that a multiplier of 167 is consistent with the 

Sentencing Commission’s intent. After Mr. Abdeljawad was sentenced, the 

Commission amended the drug-equivalency table to include synthetic 
10 

cannabinoid. In this amendment, the Commission assigned each gram of 

synthetic cannabinoid the marijuana equivalent of 167 grams—precisely 

the same result as if the court were to consider THC as the most 

comparable controlled substance. U.S. Sentencing Guidelines Manual

§ 2D1.1 cmt. n.8(D) (U.S. Sentencing Comm’n 2018); see United States v. 

Koss, 812 F.3d 460, 471 (5th Cir. 2016) (“[T]he plain language of the 

Guidelines states that mixtures or substances containing a detectable 

amount of THC are properly calculated 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 consistent with the Sentencing 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 THC-based substance and inert plant 

material. We reject this argument. 

The issue before the district court 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 plant material and synthetic 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 considers inert plant material as part of 

the controlled substance, the decision could affect all future cases 

involving consideration of synthetic marijuana.6

 

E. Dilution of the THC 

Mr. Abdeljawad also argues that (1) our interpretation leads 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 responsibility 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 compare Mr. Abdeljawad’s controlled 

substance to hashish or hashish oil. We thus express no opinion on whether 

hashish or hashish oil would resemble Mr. Abdeljawad’s controlled 

substance more closely than THC. 

 
12 

responsible for 10 kilograms of marijuana with 99% THC (even though the 

marijuana in the first case was far more diluted). See Chapman v. United 

States, 500 U.S. 453, 461 (1991) (“Congress adopted a ‘market-oriented’ 

approach to punishing drug trafficking, under which the total quantity of 

what is distributed, rather than the amount of pure drug involved, is used 

to determine the length of the sentence.”). The guidelines thus do not 

generally account for dilution 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 offense level.”); United 

States v. Skelton, 901 F.2d 1204, 1205 (4th Cir. 1990) (stating that “the 

purity of the drug is not usually a consideration for purposes of 

determining the base offense level”).7

 

F. The Rule of Lenity 

 Mr. Abdeljawad also argues that if the guidelines 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 instead account for purity through departures. See 

U.S. Sentencing Guidelines 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 apply because the guideline 

provision was unambiguous).

 * * * 

The phrase “controlled substance that is not specifically referenced 

in this guideline” refers to synthetic cannabinoid, not the mixture of 

synthetic cannabinoid and inert plant material. Because the mixture isn’t a 

controlled substance, the mixture can’t constitute a “controlled substance 

that is not specifically referenced 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