United States v. Gowdy ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4341
DAVID L. GOWDY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-99-504)
Submitted: September 20, 2000
Decided: October 17, 2000
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James D. Dotson, Jr., Lake City, South Carolina, for Appellant. J.
Rene Josey, United States Attorney, Rose Mary Davis Parham, Assis-
tant United States Attorney, Florence, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
David L. Gowdy pled guilty to one count of conspiracy to possess
with intent to distribute and to distribute MDMA ("ecstacy") in viola-
tion of 21 U.S.C.A. § 846 (West 1999). On appeal, Gowdy contends
that the district court erred by not considering application note 11 to
U.S. Sentencing Guidelines Manual § 2D1.1 (1998) in determining
the amount of MDMA attributable to Gowdy. Finding no reversible
error, we affirm.
A district court's legal applications of the sentencing guidelines is
reviewed de novo. See United States v. Jones, 31 F.3d 1304, 1315
(4th Cir. 1994). Under application note 11 to USSG§ 2D1.1, which
indicates the typical weight of doses, pills, or capsules containing cer-
tain controlled substances, it states that "the weight per unit shown is
the weight of the actual controlled substance, and not generally the
weight of the mixture or substance containing the controlled sub-
stance." However, application note 11 does not contain a typical
weight for MDMA capsules.* Under Note (A) of the"Notes to Drug
Quantity Table," contained in USSG § 2D1.1, it states 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 con-
taining a detectable amount of the controlled substance." Although
this note refers to the Drug Quantity Table in USSG§ 2D1.1(c), this
Court has applied the same principle to the drugs listed in the drug
equivalency table. See United States v. Bayerle , 901 F.2d 27, 29 (4th
Cir. 1990); see also United States v. Meitinger , 901 F.2d 27, 29 (4th
Cir. 1990).
We find that application note 11 does not pertain to MDMA.
Because Gowdy's base offense level was determined by using the
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*Application note 11 expressly applies to MDA. Gowdy's assertion
that MDMA and MDA are chemically related so as to merit treating
them identically under application note 11 has not been substantiated by
scientific facts in the record. Because the record in this present appeal
does not contain this information, a record to support this assertion
would have to be developed in a collateral proceeding.
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drug equivalency table, the district court did not err by including the
gross weight of the MDMA mixture and capsules.
We affirm the conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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