United States v. Le'Ann Koss , 831 F.3d 259 ( 2016 )


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    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-51173
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    LE 1ANN KOSS,
    Defendant - Appellant
    Appeal from the United States District Court for the
    Weste1·n District of Texas, Waco
    ON PETITION FOR REHEARING EN BANC
    (Opinion 02/05/16, 5 Cir., _ _ __         _   _ _ , F.3d _ _ _ )
    Before STEWART, Chief Judge, and IGNG and HIGGINSON, Circuit Judges.
    PERCURIAM:
    ( )   Treating the Petition for Rehearing En Banc as a Petition fo.r Panel
    Rehearing, the Petition for Panel Rehearing is DENIED. No member of
    the panel nor judge in regula1· active service of the court having
    requested that the court.be polled on Rehearing En Banc (FED R. APP. P.
    and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.
    Ti·eating the Petition for Rehearing· En Banc as a Petition for Panel
    Rehearing, the Petition for Panel Rehea1·ing is DENIED. The court
    having been polled at the i·equest of one of the members of the court and
    a majority of the judges who are in regular active service and not
    disqualified not having voted in favor (FED R. APP. P. and 5TH CIR. R. 35),
    the Petition for Rehearing En Banc is DENIED.
    JAMES L. DENNIS, Circuit Judge, joined by JOLLY, SMITH, and GRAVES,
    Circuit Judges, dissenting from the denial of rehearing en bane:
    Tetrahydrocannabinol ("THC") is the active ingredient contained in all
    cannabis-derived controlled substances. The Sentencing Guidelines call for
    the punishment of a drug offender according to the weight of the substance
    involved in his offense and the equivalency ratio applicable to the substance.
    As to cannabis-derived substances, the Guidelines provide in "Schedule I
    Marihuana":
    1 gm of Marihuana/Cannabis, granulated, powdered, etc. = 1 gm
    of marihuana
    1 gm of Hashish Oil = 50 gm of marihuana
    1 gm of Cannabis Resin or Hashish = 5 gm of marihuana
    1 gm of Tetrahydrocannabinol, Organic = 167 gm of marihuana
    1 gm of Tetrahydrocannabinol, Synthetic= 167 gm of marihuana
    Application Note 8 (D) to U.S.S.G. § 2dl.l.
    In declining to rehear this case en bane, a majority of this court abandons
    its duty to review a question of exceptional importance: what equivalency ratio
    applies to a substance when the Government's lab report simply states that it
    contains "detectable amounts of THC," considering that each of the five
    controlled substances listed in Schedule I naturally contains detectable
    amounts of THC.         The panel gave no meaningful answer to this res nova
    question but affirmed the district court's application of the highest ratio,
    applicable to THC, organic or synthetic, to what the record clearly establishes
    was marihuana and hashish. In so doing, the panel erased the distinctions
    between the five cannabis-derived substances in the Sentencing Guidelines
    and handed district courts unfettered discretion to increase the total amount
    of marihuana attributable to a defendant by a factor of 167. Because the en
    bane court has refused to correct the panel's consequential error, I must
    respectfully dissent.
    1
    I
    Le'Ann Koss had the regular practice of making marihuana "edibles" by
    mixing small amounts of marihuana into butter, which she would eat on toast
    at night with her tea. After police uncovered an interstate drug conspiracy in
    which her husband and sons were major participants, Koss was arrested and
    pleaded guilty to conspiracy to possess with intent to distribute and possession
    with intent to distribute marihuana. The police investigation recovered 1.393
    kilograms of marihuana from the Kosses' home in Texas, 1.612 kilograms of
    marihuana from Koss's sons and coconspirators in California, and 45.36
    kilograms ofmarihuana from coconspirator Brian Smith, as well as 7.03 grams
    of a "brown chunky substance" and 5.42 kilograms of "moldy, foul smelling
    green substance," in both of which a Texas Department of Public Safety (DPS)
    laboratory analysis detected tetrahydrocannabinol. Koss identified the brown
    substance as hashish and the green substance as marihuana butter, which she
    said she made by mixing five to seven grams of marihuana into a pound of
    butter. Prior to sentencing, the federal probation officer calculated Koss's base
    offense level using the Drug Equivalency Table at Application Note 8 (D) to
    U.S.S.G. § 2dl.1.1
    In the presentence report (PSR), the probation officer used the Drug
    Equivalency Table to convert the green and brown substances to their
    "marihuana equivalent." Relying on the DPS laboratory analysis that had
    detected tetrahydrocannabinol in both substances, the probation officer
    i As explained above, under "Schedule I Marihuana," the Drug Equivalency Table lists
    five controlled substances and their marihuana equivalencies:
    1 gm of Marihuana/Cannabis, granulated, powdered, etc. = 1 gm of marihuana
    1 gm of Hashish Oil = 50 gm of marihuana
    1 gm of Cannabis Resin or Hashish = 5 gm of marihuana
    1 gm of Tetrahydrocannabinol, Organic = 167 gm of marihuana
    1 gm of Tetrahydrocannabinol, Synthetic = 167 gm of marihuana
    Application Note 8 (D) to U.S.S.G. § 2dl.l.
    2
    classified both as THC and applied an equivalency ratio of 1:167. As a result,
    the PSR stated that the 5.427 kilograms of brown and green substances were
    equivalent to 906.31 kilograms of marihuana. The total drug quantity thus
    attributable to Koss for sentencing purposes was 954.679 kilograms, and her
    base offense level was 30. The offense level was reduced by three levels to 27
    for acceptance of responsibility, and the probation officer calculated the
    advisory Guidelines range to be 70 to 87 months of imprisonment for each
    count. The district court sentenced Koss at the threshold of the advisory range
    to 70 months on each count, to run concurrently. Had the green and brown
    substances been classified as marihuana and hashish, respectively, Koss's base
    offense level would have been 18; after the three-level reduction for acceptance
    of responsibility, Koss's offense level would have been 15, and the applicable
    Guidelines range would have been 18 to 24 months for each count.
    The important res nova issue presented by this case is whether a
    substance containing marihuana can be classified not as marihuana but as
    THC under the Drug Equivalency Table and thus subjected to a 1:167
    equivalency ratio. The panel held that "the 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" and thus that "the district
    court properly interpreted and applied the Guidelines, including its adoption
    of the PSR's use of the 1:167 gram ratio in Application Note 8 (D) to U.S.S.G.
    § 2Dl.1 to calculate the marihuana equivalency of the marihuana butter and
    the brown chunky substance as substances containing THC." United States v.
    Koss, 
    812 F.3d 460
    , 471 (5th Cir. 2016). However, a mere finding that a
    substance contains a detectable amount of THC is plainly insufficient to
    demonstrate that it is organic or synthetic tetrahydrocannabinol for purposes
    of the Guidelines and the 1:167 gram equivalency ratio. All cannabis-derived
    3
    substances contain THC. If such a finding were sufficient to support a 1:167
    enhancement, a district court could sentence a defendant convicted of
    possession of 1 gram of a marihuana as though she had possessed 167 grams
    of marihuana, merely on the basis of test results indicating that the
    "substance" contained THC.
    The uncontested record evidence in this case indicates that the green
    substance was in fact marihuana mixed into butter: the amended factual basis
    refers to the marihuana, hashish, and marihuana butter found in Koss's
    garage as "approximately fifteen pounds of marihuana"; the PSR summarizes
    Koss's description of how she made the butter and notes that Koss "admitted
    she made the butter with marihuana"; and at sentencing the Government
    stated, "We only have this defendant's word as to what the ratios [of butter to
    marihuana] were and as to where the marihuana was obtained from."            No
    record evidence undermines Koss's assertion that the marihuana butter was
    exactly that: butter mixed with marihuana. The Guidelines must be read to
    require the Government-before the 1:167 gram ratio may be applied-to
    demonstrate that the THC contained in the mixture is pure, isolated organic
    or synthetic THC, not THC that is naturally present in another controlled
    substance that was mixed into a carrier medium. See Ramos, 
    814 F.3d 910
    ,
    920 (8th Cir. 2016) (application of 1:167 ratio was appropriate because
    controlled substance in mixture was analogous to "pure THC," not to
    marihuana). Because the Government failed to make that demonstration in
    this case, the sentence imposed by the district court should have been vacated
    as unreasonable. And because the panel opinion not only fails to correct the
    district court's error but endorses that court's erroneous interpretation of the
    Guidelines, the en bane court should have granted rehearing in order to correct
    the panel's error.
    4
    II
    Affirming the district court's judgment, the panel op1n10n dismisses
    Koss's challenge to the district court's interpretation and application of the
    Guidelines, rejects her challenge to the sufficiency of the evidence supporting
    the district court's determination that the marihuana butter and the hashish
    were THC for purposes of the 1:167 gram ratio, and rebuffs her argument that
    the Drug Equivalency Table is ambiguous and that the rule of lenity should
    therefore apply. In doing so, the panel opinion commits several errors of its
    own: it repeatedly and willfully ignores the fact that neither the Guidelines nor
    the relevant federal statutes provide a definition of THC that can distinguish
    a substance containing "organic or synthetic THC" from a substance, like
    marihuana, that naturally contains the psychoactive chemical; misapplies the
    Guidelines' instructions for evaluating mixtures; and turns a blind eye to the
    far-reaching consequences of its opinion. I evaluate each of the panel opinion's
    conclusions, and its attendant errors, in turn.
    A
    Challenging the procedural reasonableness of her sentence, Koss first
    asserted that the district court erred in its interpretation of the Guidelines.
    Specifically, she argued that, because "neither the statutes nor the Sentencing
    Guidelines provide any qualifying definition for THC (synthetic or organic) or
    any direction on how to apply its ratio provisions ... there is no legal basis
    from which the Sentencing Court could make a determination to apply the
    1:167 equivalency ratio instead of the 1:1 ratio." In the alternative, she argued
    that "the 1:167 ratio was incorrectly applied because the preponderance of the
    evidence does not support its application."       The panel opinion erroneously
    dismissed both arguments.
    5
    1
    Considering Koss's challenges to the district court's interpretation of the
    Guidelines, the panel opinion concludes that each "begins with one of two non-
    starters, to wit, either the notion that federal statutes and the Sentencing
    Guidelines are silent and provide no legal definition of THC or the notion that
    the Guidelines fail to provide adequate guidance on how to calculate the
    marihuana equivalency of mixtures or substances containing detectable
    amounts of THC." 
    Koss, 812 F.3d at 467
    .
    THC is a psychoactive ingredient that causes a euphoric state by binding
    to cannabinoid receptors in the brain. The MERCK Manual of Diagnosis and
    Therapy 1525-26 (Robert S. Porter et al. eds., 19th ed. 2011). It is the active
    chemical in marihuana and hashish, and can be extracted from cannabis
    plants or synthesized, as in the case of the FDA-approved drug dronabinol.
    Thus, THC is not only a Schedule I controlled substance; it is also the
    psychoactive ingredient in a number of Schedule I controlled substances under
    the Guidelines. See 
    Ramos, 814 F.3d at 920-24
    (Bright, J., concurring in part
    and dissenting in part).
    The panel opinion claims that DEA regulations "defin[e] the term THC
    in detail" and therefore "a legal definition was available to guide the district
    court's determination as to whether the marihuana butter and the brown
    chunky substance were in fact 'substances containing THC' for purposes of the
    Guidelines."     
    Koss, 812 F.3d at 475
    .       The relevant regulation, 21 CFR
    .      .
    § 1308. l l(d)(31),   "Schedule   I,"   provides an imprecise definition of
    "Tetrahydrocannabinols" as:
    [T]etrahydrocannabinols naturally contained in a plant of the
    genus Cannabis (cannabis plant), as well as synthetic equivalents
    of the substances contained in the cannabis plant, or in the
    resinous extractives of such plant, and/or synthetic substances,
    derivatives, and their isomers with similar chemical structure and
    6
    pharmacological activity to those substances contained in the
    plant ....
    While this definition could be used to determine whether the substances were
    "substances containing THC," it is not a qualifying definition that could be
    used to determine whether the substances were substances containing organic
    or synthetic tetrahydrocannabinols for purposes of the Guidelines. As Koss
    accurately emphasized on appeal, all five of the substances listed under
    "Schedule I Marihuana" in Application Note 8 (D) to U.S.S.G. § 2Dl.1 contain
    some form     of THC.        For the     equivalency    table   to   make   sense,
    "Tetrahydrocannabinol, Organic" and "Tetrahydrocannabinol, Synthetic" must
    be distinct from the THC that is naturally contained in cannabis and cannabis
    derivatives. If not, district courts could apply the cited definition and be led to
    conclude that the first substance listed in the equivalency table-marihuana
    itself-is a "substance containing THC" and sentence a defendant as if he
    possessed or distributed 167 times the number of grams involved in his case.
    Indeed, such an untoward result appears to have been reached with respect to
    the "brown chunky substance" found in Koss's garage. At sentencing, Koss's
    counsel conceded that the substance contained THC but asserted, without
    objection from the Government, that "everyone would agree" that the
    substance was in fact hashish; nothing in the record suggests that the hashish
    was mixed with anything else. Nevertheless, the 1:167 ratio, rather than the
    1:5 ratio for hashish, was applied by the district court.
    Furthermore, the panel opinion's insistence on referring to a "substance
    containing THC" is misleading, as it ignores the fact that the Sentencing
    Guidelines' Drug Equivalency Table provides a marihuana equivalency
    specifically for the controlled substances "Tetrahydrocannabinol, Organic" and
    "Tetrahydrocannabinol, Synthetic." The panel opinion asserts that the Drug
    Equivalency Table for Schedule I Marihuana "provides that one gram of a
    7
    mixture or substance containing a detectable amount of organic or synthetic
    THC is the equivalent of 167 grams of marihuana." 
    Koss, 812 F.3d at 464
    .
    This assertion is simply wrong. The Drug Equivalency Table provides that one
    gram of organic or synthetic tetrahydrocannabinol is the equivalent of 167
    grams of marihuana, not that any substance in which THC is detected is the
    equivalent of 167 grams of marihuana. Application Note 8 (D) to U.S.S.G.
    § 2Dl.1.
    The Guidelines Manual does provide that, "[u]nless otherwise specified,
    the weight of a controlled substance set forth in the table refers to the entire
    weight of any mixture or substance containing a detectable amount of the
    controlled substance." U.S. SENTENCING GUIDELINES MANUAL § 2Dl.1 Note
    (A) to Drug Quantity Table (U.S. SENTENCING COMM'N 2015). But this is a
    secondary step. Before using the Drug Equivalency Table, one must determine
    the identity of "the controlled substance involved in the offense." Application
    Note 8 (A)(i) to U.S.S.G. § 2Dl.1. In the case of a substances listed under
    "Schedule I Marihuana," a showing that the substance contains a detectable
    amount of THC, on its own, is plainly insufficient to make this preliminary
    determination; as noted, every substance in the table contains THC.         The
    weight of a mixture containing THC can be considered only after one has
    confirmed that the carrier medium was mixed with pure, isolated THC. See
    
    Ramos, 814 F.3d at 920
    (application of the 1:167 ratio was appropriate because
    controlled substance in mixture was analogous to "pure THC," not to
    marihuana). To ignore this step is to further elide the distinction between
    pure, isolated THC and any substance that contains THC-including
    marihuana.
    As to the second "non-starter," the panel op1n10n asserts that the
    Guidelines contain "careful directions for how to calculate the marihuana
    8
    equivalency of substances-like the marihuana butter and the brown chunky
    substance at issue-that contain detectable amounts of THC." 
    Koss, 812 F.3d at 467
    .   Again, this assertion misses the mark: the Guidelines provide
    directions for how to calculate equivalencies of particular substances, but, as I
    have discussed, they do not provide directions for how to determine what the
    substance is in the first place and therefore which equivalency applies. And
    contrary to the panel opinion's assertion, the fact that § 2Dl.1 and its
    commentary provide that the weight of a controlled substance refers to the
    entire weight of any mixture containing a detectable amount of the controlled
    substance does not solve this problem. Koss did not contest that the relevant
    weight is that of the entire substance, including the carrier medium. Instead,
    she argued that when the district court considered the entire weight of the
    marihuana-butter mixture it should have treated it all as marihuana, not as
    pure, isolated THC. The panel fails to recognize that any mixture containing
    marihuana is, necessarily, a mixture containing some form of THC, and that
    the Guidelines do not direct the district court to treat such a substance as pure,
    isolated THC rather than as marihuana, hashish, or hashish oil.
    The Guidelines do not provide directions for how to distinguish a
    substance that is or contains organic or synthetic tetrahydrocannabinols from
    a substance that is or contains marihuana, hashish oil, or hashish. A natural
    reading of the Guidelines would require the Government to prove that a
    substance is, or contains, pure, isolated organic or synthetic THC before the
    district court could apply the 1:167 ratio. The plain-meaning rule supports
    such an interpretation: the equivalency table consists of five distinct controlled
    substances, all of which contain THC, but only two of which are THC. See Blue
    Chip Stamps v. Manor Drug Stores, 
    421 U.S. 723
    , 756 (1975) (Powell, J.,
    concurring) ("The starting point in every case involving construction of a
    9
    statute is the language itself."). This interpretation is also consistent with the
    general principle that "[t]he meaning-or ambiguity-of certain words or
    phrases may only become evident when placed in context." Food & Drug
    Admin. v. Brown & Williamson Tobacco Corp., 
    529 U.S. 120
    , 132 (2000). It is
    also consistent with the logic of the equivalency table, in which "the marihuana
    equivalency ratio ... increases as the amount of plant material decreases" and
    the concentration and potency of the psychoactive chemical increases. 
    Ramos, 814 F.3d at 921
    (Bright, J., dissenting).
    The reading of the Drug Equivalency Table employed by the district
    court and by the panel treats any substance that contains THC-including
    marihuana and hashish-as pure, isolated THC, thereby erasing the
    distinctions between the five categories in Application Note 8 (D). Such a
    reading is contrary to the plain meaning of the Guidelines, ignores the rule
    that statutory terms must be read in context, and violates the rule against
    surplusage, rendering the entire equivalency table redundant. See Antonin
    Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
    174 (2012) ("If possible, every word and every provision [of an enactment] is to
    be given effect .... None should be ignored. None should needlessly be given
    an interpretation that causes it to duplicate another provision or to have no
    consequence.").   Because every substance in the table contains THC, the
    panel's reading would allow a district court to subject every substance to either
    the specified ratio (1:1 for marihuana, 1:5 for hashish, etc.) or to the 1:167 ratio
    for organic or synthetic THC. I agree with Koss that, under such a reading,
    "there is no legal basis from which the Sentencing Court could make a
    determination to apply the 1:167 equivalency ratio instead of the 1:1 ratio."
    Consequently, the district court and the panel erred in their interpretation and
    application of the Guidelines.
    10
    2
    With respect to Koss's challenge to the sufficiency of the evidence, the
    panel opinion "conclude[s] that the district court's determination that the
    marihuana butter and the brown chunky substance were substances
    containing detectable amounts of THC for purposes of the 1:167 gram ratio was
    not clearly erroneous in light of the available sentencing evidence." 
    Koss, 812 F.3d at 479
    . The panel opinion states that the DPS lab reports indicated that
    the substances did contain THC and that "Koss bore the burden 'to
    demonstrate by competent rebuttal evidence that the information [was]
    materially untrue, inaccurate or unreliable."' 
    Id. at 4
    70 (citing United States
    v. Gomez-Alvarez, 
    781 F.3d 787
    , 796 (5th Cir. 2015)). Again, this misses the
    point entirely: Koss' s contention was not that the lab reports were inaccurate,
    but rather that they were insufficient to support the PSR's conclusion that the
    substances were organic or synthetic THC for purposes of the Guidelines. DPS
    testing confirmed that "both substances contained detectable amounts of
    THC."      However, these results-that some unspecified form of THC was
    detected-could have been obtained from a sample of pure THC, from a sample
    of pure marihuana, or from a sample of any marihuana derivative. The testing
    did not establish that either substance contained THC from an origin other
    than marihuana, in the case of the green substance, 2 or hashish, in the case of
    the brown one.
    2 In a footnote, the panel majority seems to suggest that the application of the 1: 167
    ratio would have been inappropriate if Koss had proven at sentencing that the green
    substance in fact contained marihuana. 
    Koss, 812 F.3d at 470
    n.6. If the issue were that Koss
    did not rebut evidence demonstrating that pure, isolated THC, rather than marihuana, was
    mixed into the butter, I accept that this would be a much closer case. However, the panel
    acknowledges that "[n]either party disputes that the moldy, foul smelling green substance
    was, as Koss described in her presentence interview, a homemade marihuana-infused
    butter," 
    Id. at 4
    64 n.1, and the record contains ample evidence that the substance contained
    marihuana that Koss mixed into butter as a home remedy, 
    see supra
    . The contention that
    Koss failed to carry her burden is therefore meritless.
    11
    Furthermore, and contrary to the panel opinion's assertions, the record
    indicated that the green substance was, in fact, butter mixed with marihuana
    and not a mixture of a carrier medium and pure, isolated THC. The amended
    factual basis refers to the marihuana, hashish, and marihuana butter found in
    Koss's garage as "ap:proximately fifteen pounds of marihuana." The PSR in no
    way contests Koss's characterization of the green substance as butter mixed
    with marihuana. For example, the PSR summarizes Koss's description of the
    butter: "According to the defendant, there was between five to seven grams of
    marihuana per pound of butter. The defendant then stated she purchased two
    pounds oflow grade marihuana from someone in east Waco. Koss reported she
    started making butter with the marihuana mixed in." In addition, under the
    heading "Acceptance of Responsibility," the PSR states that Koss "admitted
    she made the butter with marihuana." And at sentencing the Government
    apparently conceded that the substance was marihuana butter, stating: "We
    only have this defendant's word as to what the ratios [of butter to marihuana]
    were and as to where the marihuana was obtained from."
    The panel opinion concludes that the district court's determination was
    not clearly erroneous because it relied on the information in the PSR, including
    the lab reports, and states:
    The DPS lab reports indicated that the marijuana butter was in
    fact a substance containing a detectable amount of THC, and
    Koss put on no evidence at sentencing tending to suggest that
    the reports' results were inaccurate or that the DPS lab
    practices failed to test the marijuana butter in a manner that was
    consistent with the Guidelines.
    
    Id. at 4
    71.   Once again, the panel opinion fails to grasp the real issue.
    "Generally, a PSR bears sufficient indicia of reliability to be considered as
    evidence by the sentencing judge in making factual determinations." United
    States v. Harris, 
    702 F.3d 226
    , 230 (5th Cir. 2012) (quotations and citations
    12
    omitted). A district court can therefore "adopt the facts contained in a [PSR]
    without further inquiry if those facts have an adequate evidentiary basis with
    sufficient indicia of reliability." 
    Id. (alteration in
    original). Here, the presence
    of THC in the substances was a factual finding that could be adopted by the
    district court; however, the PSR did not find that the green and brown
    substances contained pure, isolated organic or synthetic THC; nor did it report
    that they were not marihuana butter and hashish, respectively. And to the
    extent the PSR suggested that the substances were pure, isolated THC, given
    the overwhelming evidence to the contrary, it was error for the district court
    to rely on this suggestion. See United States v. Zuniga, 
    720 F.3d 587
    , 590-91
    (5th Cir. 2013) ("If the factual recitation [in the PSR] lacks sufficient indicia of
    reliability, then it is error for the district court to consider it at sentencing-
    regardless of whether the defendant objects or offers rebuttal evidence.")
    (quoting United States v. Harris, 
    702 F.3d 226
    , 231 (5th Cir. 2012)).
    A factual finding is clearly erroneous if it is not plausible in light of the
    record as a whole. United States v. Betancourt, 
    422 F.3d 240
    , 246 (5th Cir.
    2005).   The DPS lab reports stated only that THC was detected in the
    substances and thus that both were subject to the Drug Equivalency Table for
    "Schedule I Marihuana" set forth in Application Note 8 (D) to U.S.S.G. § 2Dl.1.
    The remainder of the record unequivocally indicates that the green substance
    was a mixture of marihuana and butter, and thus demonstrates that the "1 gm
    of Marihuana/Cannabis, granulated, powdered, etc.         =1   gm of marihuana"
    equivalency should have applied to it. And the record contains no evidence
    that the brown substance was not, as counsel asserted, hashish, and thus the
    "1 gm of Cannabis Resin or Hashish = 5 gm of marihuana" equivalency should
    have applied to it. In light of this, the district court's determination that the
    1:167 ratio for THC was instead applicable is implausible and thus clearly
    13
    erroneous, 
    Betancourt, 422 F.3d at 246
    , and the panel opinion was wrong to
    affirm it.
    B
    Finally, Koss argued that the district court erred by applying the 1:167
    gram marihuana equivalency ratio for organic or synthetic THC instead of the
    1:1 gram marihuana equivalency ratio for granulated or powdered marihuana
    because the Guidelines are ambiguous and thus require the application of the
    rule of lenity.   She first asserted that neither federal statutes nor the
    Sentencing Guidelines provide a definition of THC and that this lack of a
    qualifying definition creates an ambiguity that should be resolved in her favor.
    More generally, she argued that it is at least ambiguous whether the
    Sentencing Commission intended to limit use of the 1:167 gram ratio to
    mixtures or substances with a high purity or concentration of THC.
    "The rule of lenity ... applies only when, after consulting traditional
    canons of statutory construction, [a court is] left with an ambiguous statute."
    United States v. Rivera, 
    265 F.3d 310
    , 312 (5th Cir.2001) (quoting United
    States v. Shabani, 
    513 U.S. 10
    , 17 (1994)) (alteration in original). "Although
    the provisions of the Sentencing Guidelines are not statutes, we apply the rule
    of lenity to them when we find that they are ambiguous." United States v.
    Bustillos-Pena, 
    612 F.3d 863
    , 868 (5th Cir. 2010). As I have explained, the
    Guidelines are not necessarily ambiguous. Rather, by employing traditional
    canons of statutory construction-the plain-meaning rule, the general rule
    that terms in a statute must be read in context, and the rule against
    surplusage-they can and should be read to require applying the 1:167      gram
    ratio only to pure, isolated THC or substances that contain pure, isolated THC,
    not to substances that contain THC only because they contain-or are-
    marihuana or hashish. By allowing the panel decision to stand, however, the
    14
    en bane court makes the equivalency table ambiguous: accepting the panel's
    assertion that "tetrahydrocannabinols" does not necessarily mean pure,
    isolated THC, it is not clear when a substance is or contains "marihuana" or
    "hashish" and when it is or contains "THC."         Because of that erroneous
    injection of ambiguity into the table, I would therefore agree with Koss that in
    this alternative the rule of lenity should have applied in her case.
    The panel opinion rejects Koss's argument based on the lack of a
    qualifying definition of tetrahydrocannabinols "in light of the statutory
    definition of THC at 21 C.F.R. §1308.ll(d)(31)."       
    Koss, 812 F.3d at 471
    .
    However, as discussed above, that imprecise definition does not correct the
    ambiguity in the equivalency table: any of the five substances listed could be
    a "substance containing THC" as that substance is defined in the DEA
    regulations. In fact, the ambiguity is inherent in the regulatory definition,
    which refers to "tetrahydrocannabinols naturally contained in a plant of the
    genus Cannabis," 21 CFR § 1308(d)(31), and thus confirms that marihuana
    itself is a "substance containing THC." Because the definition of THC In the
    DEA regulations does not clearly tell a sentencing court whether to apply the
    1:1 or the 1:167 equivalency to a substance containing marihuana, it does not
    cure the ambiguity injected into the Drug Equivalency Table by the panel
    opinion and the rule oflenity should compel the application of the more lenient
    ratio. 
    Bustillos-Pena, 612 F.3d at 868
    .
    With respect to Koss's second argument, the panel observes that "[t]he
    Sentencing Commission could . . . reasonably intend to punish those who
    combine THC-irrespective of its origin, i.e., organic THC stripped from
    marihuana, or synthetic THC created in laboratory-like circumstances-with
    carrier mediums to make large quantities of marihuana-containing products
    harshly without requiring an inquiry into the purity of THC in the resulting
    15
    product." 
    Koss, 812 F.3d at 474
    . I agree that this is a reasonable interpretation
    based on current and future technology that permits the manufacture of
    synthetic THC and the derivation of pure THC from cannabis plants. However,
    the panel ignores the fact that this is a strong argument for not reading the
    Guidelines as the panel does and for not applying the 1:167 ratio to a
    defendant, such as Koss, who unquestionably has not combined pure, isolated
    THC with other substances, but rather has combined marihuana with a carrier
    medium. The Guidelines already contemplate harsher punishment for those
    who combine a controlled substance with a carrier medium: the weight of the
    entire mixture is used for sentencing. It is unreasonable to allow-and even
    more so to expressly direct-district courts to further enhance a defendant's
    punishment by applying a 1:167 gram ratio enhancement merely because the
    resulting mixture necessarily contains a detectable amount of THC.
    III
    In affirming the judgment of the district court, the panel adopts an
    untenable interpretation of the Sentencing Guidelines' Drug Equivalency
    Table; embraces the insupportable determination that the 1:167 ratio for pure,
    isolated THC was applicable to substances containing marihuana or hashish;
    and, alternatively, violates the rule of lenity.        The panel's erroneous
    interpretation of the equivalency table empowers district courts to apply the
    1:167 ratio to any substance listed in the table at will-not just in cases where
    pure, isolated THC is at issue.     And perversely, it will have the effect of
    punishing defendants convicted for possession of homemade marihuana
    edibles significantly more harshly than defendants convicted for possession of
    an equivalent weight of pure marihuana. This unjust result could not have
    been intended by Congress or the Sentencing Commission.
    16
    The panel's holding could have a devastating effect on the sentences of
    an untold number of drug offenders. Even more concerning is the fact that this
    disastrous result will befall certain offenders arbitrarily, as the panel opinion
    provides no coherent principle for determining marijuana equivalency of any
    substance containing THC. Given the substantial proportion of drug-offense
    cases in the dockets of the courts in our circuit, this case plainly warrants the
    attention of our full court. In the words of Federal Rule of Appellate Procedure
    35(a)(2), this case raises a question of "exceptional importance" and plainly
    warrants the attention of our full court.    The courts in our circuit hear a
    substantial number of drug-offense cases, and this court's failure to address
    that res nova question leaves the lower courts to operate without any guidance
    in meting out sentences for many drug offenders.        I therefore respectfully
    dissent from the refusal to rehear this case en bane.
    17