     Case: 18-40884   Document: 00515328217        Page: 1   Date Filed: 03/02/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                       Fifth Circuit

                                                                      FILED
                                    No. 18-40884                    March 2, 2020
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

MOHAMED EBRAHIM SALIM MOTON, also known as Mohamed Moton
Salim, also known as Salim Moton,

             Defendant - Appellant




                Appeal from the United States District Court
                    For the Southern District of Texas


Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Convicted of two counts of possession with intent to distribute a
synthetic cannabinoid and sentenced to concurrent terms of 186 months in
prison followed by 36 months of supervised release, Mohamed Ebrahim Salim
Moton contests the sufficiency of the evidence to prove he had the requisite
mens rea, the drug quantity used to calculate his base offense level, and a
sentencing enhancement for maintaining drug premises. We affirm.
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                                 No. 18-40884
                                       I.
      Moton, a native and citizen of India, came to the United States as a
tourist in October 2014, but within two years, he was packaging a synthetic
cannabinoid for two men he met at his mosque. In 2016, the Houston Police
Department received a tip regarding narcotics activity at a storage facility.
Observing a man unloading boxes from a blue minivan into a storage unit
flagged by the facility’s manager, police followed and stopped him for a traffic
violation. Moton was the driver. Identity in hand, police began surveilling
Moton. They watched him load boxes from the storage unit into his minivan
and drive to a gas station a few miles away, where he deposited a box and two
black trash bags into a dumpster. After Moton drove off, police recovered the
box and trash bags, which contained materials often used to produce synthetic
cannabinoids: baggies, loose leaves, receipts for acetone, a box for a digital
scale, a package for a respirator, bottles of Tasty Puff flavoring, and labels
advertising the flavor and potency of the synthetic cannabinoid. The bag’s
contents tested positive for synthetic cannabinoid.
      The police continued to surveil Moton as he regularly visited other
storage facilities and a house on Mulholland Drive in southwest Houston (the
“House”). Moton was the only person who police saw visiting the House. Moton
regularly dropped off trash bags at storage units for pick up by Moton’s co-
defendant, Ataru Rahman Malik. Officers saw Moton put black trash bags in
the trunk of Malik’s unattended car and immediately leave. They observed
Malik return to his car and transfer the bags to a vehicle driven by another of
Moton’s co-defendants. Officers conducted a traffic stop of the vehicle,
confiscating 800 baggies of synthetic cannabinoids.
      Officers arrested Moton at the House. With unfurnished rooms and
empty kitchen cabinets, the House was no home. It was a large-scale
manufacturing lab: chemical flavoring was stored in a bedroom, containers of
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                                  No. 18-40884
acetone were in the garage, and tubs filled with packaged synthetic
cannabinoids were in the backroom. Fans blew chemical odors out of the
chimney, and a machine was used to seal the packaged drugs. The officers also
found approximately 580 pounds of synthetic cannabinoids, as well as Moton’s
utility bill for the House.
      With the help of an Urdu-speaking interpreter, police advised Moton of
his rights and interviewed him. Moton then described the process for delivering
synthetic cannabinoids to storage units, explaining that he was paid by cash
left for him in the units. On searching the units, including one listed in Moton’s
name, police found materials used to produce synthetic cannabinoids.
      Moton testified at trial that he mixed artificial flavoring with dry green
leaves, estimating that he had packaged between 75,000 and 200,000 bags.
While each contained 10 grams of the dried leaves, he denied knowing that the
leaves contained synthetic cannabinoids or that any aspect of the business was
illegal, saying that his difficulty with English left him unaware that the
business was illegal.
      At the close of evidence, Moton unsuccessfully moved for a judgment of
acquittal. The jury found him guilty of two counts of possession with intent to
distribute synthetic cannabinoids and not guilty on the remaining conspiracy
charge.
                                       II.
      In calculating Moton’s base offense level under the Sentencing
Guidelines, the presentence report (“PSR”) attributed to him (1) $107,940.00
in drug proceeds discovered in Malik’s safety deposit box and (2) 434,319.50
grams of cannabinoids seized at different locations. The drug proceeds and
seized cannabinoid totaled to 2,593,119.50 grams of synthetic cannabinoid.
Using an unstated multiplier, the PSR converted this figure to 409,274


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                                    No. 18-40884
kilograms of marijuana, which has a base offense level of 38. 1 The PSR then
added a two-level enhancement under § 2D1.1(b)(12) of the Guidelines for
maintaining premises for the purpose of manufacturing or distributing a
controlled substance analogue. With a total offense level of 40 and a criminal
history category of I, the advisory Guidelines range of imprisonment was 292
to 365 months, capped by statute at 240 months. 2 Varying downward, the
district court sentenced Moton to concurrent terms of 186 months of
imprisonment and concurrent three-year terms of supervised release. Moton
timely appealed.
                                          III.
      Moton raises three issues on appeal. He argues that there was
insufficient evidence of the requisite mens rea, that the district court
miscalculated his base offense level under the Sentencing Guidelines, and that
the court erred in applying the sentencing enhancement for maintaining a drug
premises.
                                          A.
      Moton argues that the Government failed to prove that he had the
requisite mens rea. Moton preserved his challenge, and we review the
sufficiency of the evidence de novo, “view[ing] all evidence, whether
circumstantial or direct, in the light most favorable to the Government with
all reasonable inferences to be made in support of the jury’s verdict.” 3 We are
to uphold the jury’s verdict if “any rational trier of fact could have found the




      1  U.S.S.G. § 2D1.1(c)(1).
      2  See 21 U.S.C. § 841(b)(1)(C).
       3 United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012) (internal brackets,

quotation marks, and citation omitted).
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                                        No. 18-40884
essential elements of the crime beyond a reasonable doubt.” 4 “The weight and
credibility of the evidence are the sole province of the jury.” 5
       The Controlled Substances Act (“CSA”) makes it unlawful to knowingly
manufacture, distribute, or possess with the intent to distribute controlled
substances. 6 “The Controlled Substance Analogue Enforcement Act of 1986
(Analogue Act) identifies a category of substances substantially similar to
those listed on the federal controlled substance schedules and then instructs
courts to treat those analogues, if intended for human consumption, as
controlled substances listed on schedule I for purposes of federal law.” 7
       The Government must establish that the defendant “knew he was
dealing with a controlled substance.” 8 When the substance is an analogue,
“that knowledge requirement is met if the defendant knew that the substance
was controlled under the CSA or the Analogue Act, even if he did not know its
identity.” 9 A defendant’s knowledge can be established in one of two ways:
             First, it can be established by evidence that a defendant
       knew that the substance with which he was dealing is some
       controlled substance—that is, one actually listed on the federal
       drug schedules or treated as such by operation of the Analogue
       Act—regardless of whether he knew the particular identity of the
       substance. Second, it can be established by evidence that the
       defendant knew the specific analogue he was dealing with, even if
       he did not know its legal status as an analogue. 10




       4 United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
       5 United States v. Parker, 505 F.3d 323, 331 (5th Cir. 2007).
       6 McFadden v. United States, 135 S. Ct. 2298, 2302 (2015) (citing 21 U.S.C.

§ 841(a)(1)).
       7 Id. (internal citation omitted). To be “substantially similar” to a controlled substance,

the substances must be “substantially similar” in their chemical structure and in their actual,
intended, or represented effect on the central nervous system. 21 U.S.C. § 802(32)(A).
       8 McFadden, 135 S. Ct. at 2302 (internal quotation omitted).
       9 Id.
       10 Id. at 2305.

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                                  No. 18-40884
      Under the first method, the Government must prove that the defendant
knew the drug was some controlled substance. To prove the defendant’s
knowledge, the Government need not introduce direct evidence; circumstantial
evidence may suffice. 11 It is for the jury “to determine whether the
circumstantial evidence proves that the defendant knew that the substance
was a controlled substance under the CSA or Analogue Act.” 12 Circumstantial
evidence establishing knowledge might include “a defendant’s concealment of
his activities, evasive behavior with respect to law enforcement, knowledge
that a particular substance produces a ‘high’ similar to that produced by
controlled substances, and knowledge that a particular substance is subject to
seizure at customs.” 13 The jury was so instructed, without objection from
Moton.
      The jury had more than enough circumstantial evidence to convict
Moton. 14 He worked in a house that police described as “[a] full-blown
manufacturing lab for synthetic cannabinoids.” He admitted to police that he
had operated out of another house, but relocated after a neighbor asked about
Moton’s suspicious activities. He left trash bags filled with synthetic drugs in
storage units and, on at least one occasion, in the trunk of an unattended
vehicle. And to dispose of evidence, he drove three to five miles from a storage
facility to a gas station instead of using the storage facility’s own dumpster.
We hold that there was sufficient evidence to sustain the jury’s finding that
Moton acted with the requisite mens rea.




      11  Id. at 2304 n.1.
      12  Id. at 2306 n.3.
       13 Id. at 2304 n.1.
       14 The jury instructions closely tracked the language in McFadden and are not

contested on appeal.
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                                       No. 18-40884
                                              B.
       When, as here, a defendant has preserved a sentencing error, we review
the district court’s factual findings for clear error and its application of the
Sentencing Guidelines de novo. 15 Even if an error is established, it must be
disregarded “if it is harmless, i.e., if it does not affect substantial rights.” 16 On
clear error review, the Government has the burden to prove the error is
harmless. 17
       Under the Sentencing Guidelines, a defendant’s base offense level
reflects the offense of conviction and other “relevant conduct.” 18 “Relevant
conduct” includes a defendant’s “acts and omissions . . . that were part of the
same course of conduct or common scheme or plan as the offense of
conviction.” 19 Although only criminal conduct is relevant, the conduct need not
have resulted in a conviction. 20 For a drug offense, the base offense level
reflects the amount of drugs involved, with quantities of drugs from multiple
transactions added together. 21 “Where there is no drug seizure or the amount
seized does not reflect the scale of the offense,” the district court “shall
approximate the quantity of the controlled substance.” 22
       Relevant conduct—here, the quantity of drugs—must be proven by “a
preponderance of the relevant and sufficiently reliable evidence.” 23 The district
court may consider any relevant information, without regard to admissibility



       15  United States v. Ochoa-Gomez, 777 F.3d 278, 281 (5th Cir. 2015). Both parties
assumed that Moton preserved his objection.
       16 United States v. Randall, 924 F.3d 790, 795 (5th Cir. 2019) (citing FED. R. CRIM.

P. 52(a)).
       17 Id. (citing United States v. Olano, 507 U.S. 725, 734–35 (1993)).
       18 U.S.S.G. § 1B1.1 cmt. n.1(I).
       19 Id. § 1B1.3(a)(2).
       20 See United States v. Anderson, 174 F.3d 515, 526 (5th Cir.1999).
       21 U.S.S.G. § 2D1.1 cmt. n.7.
       22 Id. § 2D1.1 cmt. n.5.
       23 United States v. Dinh, 920 F.3d 307, 310 (5th Cir. 2019) (internal quotation omitted).

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                                         No. 18-40884
under the rules of evidence, provided the information has “sufficient indicia of
reliability to support its probable accuracy.” 24 A PSR generally has sufficient
indicia of reliability. 25 A defendant’s “[m]ere objections” do not cast doubt on
the PSR. 26 The defendant must demonstrate its inaccuracy by introducing
rebuttal evidence. 27
       Moton challenges his sentence on three grounds. First, he argues that
the district court treated Malik’s drug proceeds as relevant conduct in violation
of the Guidelines. Second, he contends that the preponderance of the evidence
does not support the PSR’s conclusion that 434,319.50 grams of synthetic
cannabinoid were seized during the investigation. Finally, he maintains that
the PSR’s failure to explain the multiplier used to convert synthetic
cannabinoid to marijuana was a clear error. The Government does not directly
confront these arguments. It rather argues that the sentencing errors were
harmless because Moton admitted to packaging between 750,000 and
2,000,000 grams of synthetic cannabinoid, which exceeds the minimum weight
for a base offense level of 38. We agree. Accepting as errors those identified by
Moton, we conclude that they are harmless. The PSR found that Moton
admitted to packing 2,000,000 grams of synthetic cannabinoid. The district
court has broad discretion to credit that admission 28 and use it to calculate the
base offense level. 29


       24 U.S.S.G. § 6A1.3, p.s.; United States v. Zuniga, 720 F.3d 587, 590–91 (5th Cir. 2013).
       25 See, e.g., United States v. Barfield, 941 F.3d 757 (5th Cir. 2019) (holding that district
court can rely on defendant’s uncorroborated admission that he trafficked in prior months);
United States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014) (affirming reliance upon facts in
PSR that were based upon police reports summarizing, inter alia, victim interviews).
       26 United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013) (internal quotation

omitted).
       27 Id.
       28 See, e.g., Barfield, 941 F.3d at 765–66.
       29 U.S.S.G. § 2D1.1 cmt. n.5 (2016) (“Where there is no drug seizure or the amount

seized does not reflect the scale of the offense, the court shall approximate the quantity of the
controlled substance.”).
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                                     No. 18-40884
      To determine the appropriate conversion rate for FUB-AMB, we use the
marijuana equivalency of the most closely related controlled substance.30
Based on the undisputed expert testimony presented at trial, we conclude that
FUB-AMB is most closely related to THC, which has a conversion rate of 167
grams of marijuana per one gram of THC, the same conversion rate used by
the parties. Applying the proper conversion rate—167 grams of marijuana per
one gram of FUB-AMB—to the 2,000,000 grams of synthetic cannabinoid
packed by Moton yields 334,000 kilograms of marijuana. 31 This amount is well
in excess of the 90,000 kilograms of marijuana needed for a base offense level
of 38. Thus, the errors in the PSR do not affect Moton’s sentence and are
harmless.
                                            C.
      Moton argues that the district court erred in applying the § 2D1.1(b)(12)
sentencing enhancement for maintaining a premises for manufacturing or
distributing a controlled substance. “A district court’s application of
§ 2D1.1(b)(12) is a factual finding reviewed for clear error.” 32 The Guideline
provides for a two-level enhancement if the defendant “knowingly maintains a
premises (i.e., a building, room, or enclosure) for the purpose of manufacturing
or distributing a controlled substance, including storage of a controlled
substance for the purpose of distribution.” 33 To determine whether the
defendant “maintained” the premises, courts consider “(A) whether the



      30  U.S.S.G. § 2D1.1 cmt. n.6 (directing courts to consider whether the controlled
substance not referenced in the guideline has a similar chemical structure, effect on the
central nervous system, and potency as a controlled substance referenced in the guideline).
       31 The PSR appeared to use a conversion rate of 157.8 grams of marijuana per one

gram of the synthetic cannabinoid. Even under this more generous conversion rate, 2,000,000
grams of synthetic cannabinoids is equivalent to 315,600 kilograms of marijuana.
       32 United States v. Guzman-Reyes, 853 F.3d 260, 263 (5th Cir. 2017) (internal

quotation omitted)
       33 U.S.S.G. § 2D1.1 cmt. n.17.

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                                    No. 18-40884
defendant held a possessory interest in (e.g., owned or rented) the premises
and (B) the extent to which the defendant controlled access to, or activities at,
the premises.” 34
      Moton concedes his name was on the utility bill, and he had access to the
House, “which [was] obviously being maintained for the purpose of
manufacturing and distributing drugs.” And Moton was the only person
regularly seen at the House and was often alone there. “This level of access,
dominion, and control ‘suffice[s] to support a maintenance finding’ under the
deferential clear error standard.” 35 We find no error in the application of the
§ 2D1.1(b)(12) enhancement. 36
                                         IV.
      We AFFIRM the district court’s judgment.




      34  Id.
      35  Guzman-Reyes, 853 F.3d at 265 (quoting United States v. Morgan, 117 F.3d 849,
856 (5th Cir. 1997)).
       36 See Ochoa-Gomez, 777 F.3d at 282.

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