            Case: 16-17683    Date Filed: 03/15/2018   Page: 1 of 10


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 16-17683
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 8:16-cr-00002-JSM-AAS-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

NIDAL JABER,

                                                            Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                               (March 15, 2018)

Before ED CARNES, Chief Judge, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:

     During an investigation into synthetic cannabinoid trafficking in Tampa,
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Florida, law enforcement officers arrested Nidal Jaber and two men acting under

his direction. Jaber pleaded guilty to conspiracy to distribute and possess with

intent to distribute a mixture and substance containing a detectable amount of

XLR-11, a synthetic cannabinoid and Schedule I controlled substance. See 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. The district court sentenced him to 80

months imprisonment followed by three years of supervised release, a sentence

that fell below his advisory guidelines range of 84 to 150 months imprisonment.

Jaber contends that his sentence is procedurally and substantively unreasonable.

                                               I.

       Because XLR-11 is not listed in either the drug quantity table or the drug

equivalency table of the United States Sentencing Guidelines, the court calculated

Jaber’s base offense level using the marijuana equivalency ratio for

tetrahydrocannabinol (THC), the listed substance that it found was most closely

related to XLR-11. See United States Sentencing Guidelines § 2D1.1 cmt. 6 (Nov.

2016). 1 The equivalency table states that 1 gram of THC is equivalent to 167


       1
          In drug trafficking cases the district court determines a defendant’s base offense level
by comparing the weight of a seized substance to weights listed in the drug quantity table.
U.S.S.G. § 2D1.1(a)(5), (c). If the seized substance is not listed in the drug quantity table, then
the court looks to the drug equivalency table, which includes several additional controlled
substances and provides a marijuana equivalency ratio for each. Id. § 2D1.1 cmt. 8(A), (D). By
applying the listed ratio to the weight of a seized substance, the court can use the equivalent
weight of marijuana to determine a defendant’s base offense level. Id. If the seized substance is
not listed in either the drug quantity table or the drug equivalency table, then the court uses the
marijuana equivalency ratio for the listed substance that is most closely related to the seized
substance. Id. § 2D1.1 cmt. 6.

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grams of marijuana. Id. § 2D1.1 cmt. 8(D).

         The district court applied that 1:167 ratio to the weight of XLR-11 seized

during Jaber’s arrest. That resulted in a base offense level of 26. Jaber received a

2-level enhancement for his leadership role in the conspiracy and a 3-level

reduction for his acceptance of responsibility, resulting in a total offense level of

25.2 With a criminal history category of IV, Jaber’s guidelines range was 84 to

105 months imprisonment.

         At his sentence hearing, Jaber objected to the comparison of XLR-11 to

THC and the use of the 1:167 ratio. He introduced the expert testimony of Dr.

Daniel Buffington, who opined that the government had insufficient data to

support the assumption that XLR-11 is similar to THC or to support the 1:167

ratio.

         In response the government called Drug Enforcement Administration drug-

science specialist, Dr. Cassandra Prioleau. She testified that although the DEA

performed no clinical human studies of XLR-11, data gleaned from animal and

test-tube studies and from emergency room visits by people who had consumed

XLR-11 supported the government’s conclusion that XLR-11 is most closely

related to THC. But she admitted that she did not know how the government

         2
         The presentence investigation report recommended holding Jaber accountable for
around 5,868 grams of XLR-11, which would have increased his total offense level 2 points to
27. At the sentence hearing the government agreed to a lower weight, and the district court
adopted a total offense level of 25.

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established the 1:167 ratio listed in the guidelines.

      The court overruled Jaber’s objection and accepted the 1:167 ratio and the

recommended guidelines range as a starting point. But it allowed Jaber to argue

that the court should consider the weakness of the ratio when it fashioned his

sentence. Jaber then argued for a downward variance citing again the lack of

scientific evidence to support the 1:167 ratio and his low risk of recidivism.

      After considering the advisory guidelines, Jaber’s arguments, and the 18

U.S.C. § 3553(a) factors, the court sentenced Jaber to 80 months imprisonment

followed by three years of supervised release. At the same hearing the court

sentenced one of Jaber’s codefendants to five years of probation (his guidelines

range was 30 to 37 months imprisonment) and the other co-defendant to 18 months

imprisonment followed by two years of supervised release (his guidelines range

was 37 to 46 months imprisonment). Jaber raised no new objections. This is his

appeal.

                                         II.

      We review the reasonableness of a sentence for abuse of discretion, Gall v.

United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007), and “[t]he party

challenging the sentence bears the burden to show it is unreasonable in light of the

record and the § 3553(a) factors,” United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010). We review a district court’s fact findings for clear error and the


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court’s application of the guidelines with due deference, which is “tantamount to

clear error review.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir.

2010).

                                               A.

       A sentence is procedurally unreasonable if the “district court improperly

calculates the [g]uidelines range.” United States v. Gonzalez, 550 F.3d 1319, 1323

(11th Cir. 2008). Jaber contends that his sentence is procedurally unreasonable

because the court calculated his base offense level using the marijuana equivalency

ratio for THC. When a controlled substance is not listed in the guidelines’ drug

equivalency table, the court looks to the most closely related listed substance.

U.S.S.G. § 2D1.1 cmt. 6. To determine which listed substance is most closely

related to the substance at issue, the court considers whether the two drugs: (1)

have a substantially similar chemical structure, (2) have substantially similar

psychologic effects, and (3) require a similar quantity to produce a similar effect.

Id. Jaber argues that the court clearly erred by finding that XLR-11 is most closely

related to THC because there are no clinical human studies comparing the potency

and effects of XLR-11 and THC. 3 We disagree.

       3
         Jaber argues that “there is not support for finding that XLR-11 is a Schedule 1
substance.” But during his sentence hearing, Jaber’s attorney withdrew that issue, admitting that
he could not in “good faith” make that argument. As a result the district court did not decide the
issue, and Jaber waived any argument that XLR-11 was improperly classified as a Schedule 1
drug. See United States v. Cobb, 842 F.3d 1213, 1222 (11th Cir. 2016) (“[A] defendant waives a
sentencing objection where he expressly withdraws the objection before the district court.”).

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      Dr. Prioleau testified that none of the substances listed in the drug

equivalency table have a chemical structure substantially similar to XLR-11, so she

relied on the second and third factors for her determination. She stated that data

from animal studies showed that animals given XLR-11 responded as if they were

given THC. And data from test-tube studies showed that XLR-11 binds to and

activates human cannabinoid receptors in the same way as THC. Dr. Prioleau also

explained that the DEA did not perform human clinical studies because the FDA

found that XLR-11 has no known medical use. And she testified that even though

there were no human clinical studies, those studies were not necessary because the

animal, test-tube, and anecdotal human studies allowed her to extrapolate data to

humans.

      Although Dr. Buffington disagreed with her conclusion and testified that

animal and test-tube studies were insufficient, the district court did not clearly err

in believing Dr. Prioleau. See United States v. Saingerard, 621 F.3d 1341, 1343

(11th Cir. 2010) (“Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.”) (quotation marks

omitted); United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999) (“The

district court’s decision on the competency of, and the weight to be accorded to,

the testimony of an expert is a highly discretionary one.”). And because Dr.

Prioleau’s testimony supports the court’s finding that XLR-11 is most closely


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related to THC, that finding was not clearly erroneous. See Saingerard, 621 F.3d

at 1343.

      Jaber also contests the 1:167 ratio itself, arguing that the ratio is unsupported

by scientific evidence and that it does not reflect the THC content of natural

marijuana. But “the absence of empirical evidence is not an independent ground

that compels the invalidation of a guideline.” United States v. Snipes, 611 F.3d

855, 870 (11th Cir. 2010). Instead the guidelines, including marijuana equivalency

ratios, are advisory, and a lack of empirical evidence is one of several factors that a

district court may consider in choosing to deviate from the recommended range

and in calculating a reasonable sentence. Kimbrough v. United States, 552 U.S.

85, 109–11, 128 S. Ct. 558, 575–76 (2007) (explaining that guidelines conversion

ratios are advisory and a district court may consider a ratio’s propriety when it

renders a reasonable final sentence).

      The district court did not clearly err by relying on the 1:167 ratio for THC to

calculate Jaber’s guidelines range. See Gonzalez, 550 F.3d at 1323.

                                          B.

      Jaber next contends that his sentence is substantively unreasonable because

the 1:167 ratio resulted in an impermissibly excessive sentence, because the court

did not properly account for his low risk of recidivism, and because his variance is

disproportionate to the variances of his codefendants.


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      “We examine whether the sentence is substantively reasonable in light of the

totality of the circumstances and the 18 U.S.C. § 3553(a) factors.” United States v.

Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). Generally “[i]t is sufficient that

the district court considers the defendant’s arguments at sentencing and states that

it has taken the § 3553(a) factors into account.” United States v. Sanchez, 586

F.3d 918, 936 (11th Cir. 2009).

      The district court considered Jaber’s arguments and the § 3553(a) factors at

the sentence hearing and based on his arguments chose to vary downward from the

guidelines range. The court was permitted to vary downward because it disagreed

with the guidelines, but contrary to Jaber’s argument, it was not required to vary

more than it thought was reasonable. See Kimbrough, 552 U.S. at 110–11, 128

S. Ct. at 575–76; United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009)

(“[A] district court has ‘considerable discretion’ in deciding whether the § 3553(a)

factors justify a variance and the extent of one that is appropriate.”).

      Jaber also argues that the court improperly considered his criminal history

and did not give adequate weight to his old age and remorse. That argument fails.

To fashion a reasonable sentence, the court must consider the “history and

characteristics of the defendant,” which includes a history of criminal acts. 18

U.S.C. § 3553(a)(1). The district court found that Jaber’s prior insurance-fraud

convictions suggested that he might reoffend despite his age and his claims of


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remorse. Given that history the court did not abuse its discretion by concluding

that 80 months imprisonment — which was below Jaber’s guidelines range — was

a reasonable sentence. See Shaw, 560 F.3d at 1237; cf. United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008) (noting that we usually expect a sentence within the

guidelines range to be reasonable).

      Jaber argues that his sentence is unreasonable because he received a smaller

variance than his codefendants. See 18 U.S.C. § 3553(a)(6) (stating that one factor

to be considered in imposing a sentence is “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct”). Because Jaber did not object to his sentence on that basis we

review for plain error only. See United States v. Vandergrift, 754 F.3d 1303, 1307

(11th Cir. 2014). Under plain error review Jaber must show that (1) the district

court erred; (2) the error was plain; (3) the error affected his substantial rights; and

(4) the error “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Doyle, 857 F.3d 1115, 1118 (11th Cir.

2017).

      The court did not err by applying a smaller variance to Jaber’s sentence. “A

well-founded claim of disparity . . . assumes that apples are being compared to

apples.” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009)

(quotation marks omitted). Jaber acknowledges that he played a leadership role in


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the conspiracy and that he has a more significant criminal history than his

codefendants. Those facts show that Jaber and his codefendants did not have

“similar records” and were not “found guilty of similar conduct.” See 18 U.S.C.

§ 3553(a)(6); see also Cavallo, 790 F.3d at 1237 (“[D]isparity between the

sentences imposed on codefendants is generally not an appropriate basis for relief

on appeal.”) (quotation marks omitted).

      AFFIRMED.




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