15-2070-cr
United States v. Lababneh


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT
                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of April, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 PAUL A. ENGELMAYER,
                                 Judge.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                            v.                                                    No. 15-2070-cr

ABDELMAJI K. LABABNEH, AKA ABU KHALAF, AKA
DAVID,
                                 Defendant-Appellant.
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    FOR APPELLEE:                                          STEVEN D. CLYMER, Assistant United
                                                           States Attorney of Counsel (Jeffrey C.
                                                           Coffman, on the brief), for Richard S.
                                                           Hartunian, United States Attorney for
                                                           the Northern District of New York,
                                                           Syracuse, NY.



    Judge Paul A. Engelmayer, of the Southern District of New York, sitting by designation.


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 FOR DEFENDANT-APPELLANT:                         BARRY A. WEINSTEIN, Goldstein &
                                                  Weinstein, Bronx, NY.

 FOR AMICUS CURIAE:                               BORIS BERSHTEYN (Luke T. Taeschler
                                                  and Deepa Vanamali, on the brief),
                                                  Skadden, Arps, Slate, Meagher & Flom
                                                  LLP, New York, NY, for National
                                                  Association of Criminal Defense
                                                  Lawyers.

       Appeal from judgment of the United States District Court for the Northern District

of New York (D’Agostino, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Abdelmaji Lababneh challenges his conviction and

97-month sentence, following a guilty plea, for conspiracy to possess with intent to

distribute and to distribute a controlled substance, synthetic cannabinoid XLR11, in

violation of 21 U.S.C. §§ 841, 846. On appeal, Lababneh argues that the district court: (1)

erroneously determined that the temporary scheduling of XLR11 as a controlled

substance was valid; (2) committed substantive error by failing to sufficiently vary his

sentence; and (3) committed procedural error by calculating his base offense level using a

drug equivalency conversion ratio of 1:167. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       As an initial matter, we find that Lababneh’s first and second arguments are

waived. Lababneh’s plea agreement included a provision expressly waiving Lababneh’s

right to appeal his conviction and any sentence of 240 months or less, reserving only the

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right to challenge, on direct appeal, the district court’s decision at sentencing to calculate

Lababneh’s base offense level using a conversion ratio of 1:167. During plea

proceedings, the district court specifically addressed this provision several times,

explaining the waiver to Lababneh, confirming that Lababneh understood it, and

verifying that Lababneh had discussed the provision with counsel. On appeal, Lababneh

concedes that he agreed to the waiver, yet fails to offer any reason as to why the waiver

should not be enforced. We conclude that this waiver is valid, and enforce it here. See

United States v. Pearson, 570 F.3d 480, 485 (2d Cir. 2009) (per curiam) (recognizing that

defendant’s ―knowing and voluntary waiver of his right to appeal a conviction and

sentence‖ is enforceable); United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998)

(stating that this Court must enforce valid waiver where it covers appellate issues

presented).

       We turn now to the issue Lababneh excepted from his waiver: whether the district

court erred by calculating his base offense level using the drug equivalency conversion

ratio of 1:167. This exception encompasses two arguments, both of which are raised on

appeal. First, Lababneh argues that the district court erred in concluding that

tetrahydrocannabinol (―THC‖), as opposed to marijuana, is the most closely related

substance to XLR11. Second, he argues that the guideline provision of U.S.S.G. § 2D1.1

establishing a ratio of 1:167 as between THC and marijuana is arbitrary and irrational.

       We find that Lababneh, despite preserving the right to do so, failed to sufficiently

raise either challenge below. Accordingly, we review the district court’s use of the 1:167

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ratio for plain error. See United States v. Zillgitt, 286 F.3d 128, 138 (2d Cir. 2002). See

also United States v. Hester, 589 F.3d 86, 94 (2d Cir. 2009) (per curiam) (finding that,

although plea agreement reserved right to challenge denial of motion to dismiss

indictment, defendant failed to raise arguments relating to challenge below, and so

waived those arguments on appeal). Under this standard of review, a defendant must

establish (1) error, (2) that is plain, (3) that prejudicially affected his substantial rights,

and (4) that seriously affected the fairness, integrity or public reputation of the judicial

proceedings. United States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012). A district court

commits procedural error where it ―fails to calculate (or improperly calculates) the

Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to

consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails

adequately to explain the chosen sentence.‖ United States v. Robinson, 702 F.3d 22, 38

(2d Cir. 2012) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). We review claims of

procedural unreasonableness under a deferential abuse-of-discretion standard. United

States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).

       We have no basis for finding plain error here. Where a controlled substance is not

specifically referenced in the Guidelines, a court must calculate a defendant’s base

offense level by using the drug-equivalency ratio for the most closely related controlled

substance found in the Guidelines. See U.S.S.G. § 2D1.1 cmt. n.6. In determining the

most closely related controlled substance, a court must consider, ―to the extent

practicable‖:

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              (A) Whether the controlled substance not referenced in this
                  guideline has a chemical structure that is substantially
                  similar to a controlled substance referenced in this
                  guideline;

              (B) Whether the controlled substance not referenced in this
                  guideline has a stimulant, depressant, or hallucinogenic
                  effect on the central nervous system that is substantially
                  similar to the stimulant, depressant, or hallucinogenic
                  effect on the central nervous system of a controlled
                  substance referenced in this guideline; and

              (C) Whether 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 substance referenced in
                  this guideline.

Id. Lababneh’s presentence investigation report (―PSR‖) described XLR11 as a chemical

compound that mimics THC, the active ingredient in marijuana. The PSR then calculated

Lababneh’s base offense level using THC’s marijuana-equivalency ratio of 1:167,

pursuant to U.S.S.G. § 2D1.1 cmt. n.8(D). Lababneh did not object to either the PSR’s

description of XLR11 or to its calculation of his offense level. At sentencing, the district

court adopted the PSR’s unobjected-to offense-level calculation, but ultimately imposed a

non-Guidelines sentence of 97 months’ imprisonment—reflecting a significant variance

below the sentencing range calculated under the Guidelines of 168 to 210 months—due

to the ―somewhat high disparity in the guidelines scoring for this offense involving

synthetic marijuana as opposed to regular marijuana,‖ the Guidelines’ treatment of

Lababneh’s criminal history, and Lababneh’s willingness and attempts to cooperate.

App’x at 92–93.

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       On appeal, Lababneh argues that XLR11 is more closely related to marijuana than

THC, and that the district court erred in finding THC the closer comparator. But

Lababneh did not provide evidentiary support for that contention below (indeed, he

acceded to the PSR’s use of the 1:167 ratio to calculate his guideline range, pursuing

instead—successfully—a variance from that range) and does not do so on appeal either.

On the record at hand, therefore, the district court’s finding that XLR11 is most closely

related to THC cannot be held clearly erroneous, let alone plainly so.

       Lababneh next argues that the 1:167 equivalency ratio as between THC and

marijuana employed by the Guidelines is arbitrary and irrational. But this contention, too,

was not properly raised in the district court. Lababneh’s challenge to the use of that ratio

consisted only of a conclusory argument, in support of a variance or departure, that ―there

is no rational basis for‖ it, and that it ―vastly overrepresents the seriousness of the

offense.‖ App’x at 67–68. Lababneh did not support that argument with scientific, or

other, evidence, and once again fails to do so on appeal. As such, the district court did not

abuse its discretion, and therefore did not commit plain error, by using the drug

equivalency ratio set out in the Guidelines as the ―starting point and the initial

benchmark‖ for sentencing, Kimbrough v. United States, 552 U.S. 85, 108 (2007)

(internal quotation marks and citation omitted), and then employing a variance as the

means to accommodate various mitigating factors, including the district court’s perceived

disparity between the Guidelines’ treatment of THC as opposed to ordinary marijuana.




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      We therefore reject Lababneh’s challenges, but express no view as to whether

XLR11 is more closely related to THC or marijuana, or as to the wisdom as a matter of

policy of the 1:167 ratio used in the Guidelines for cases involving THC. We have

considered Lababneh’s remaining arguments and conclude that they are without merit.

We therefore AFFIRM the judgment of the district court.

                                 FOR THE COURT:

                                 Catherine O’Hagan Wolfe, Clerk of Court




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