United States v. Derrick Lewis , 521 F. App'x 109 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4665
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK LEWIS, a/k/a Chip, a/k/a Ski, a/k/a Mark Jones,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:11-cr-00201-1)
Submitted: March 8, 2013 Decided: April 5, 2013
Before DAVIS and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John H. Tinney, Jr., THE TINNEY LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, R. Gregory McVey, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Lewis appeals his sentence imposed after he
pleaded guilty to possession with intent to distribute a
quantity of oxycodone and a quantity of oxymorphone, in
violation of 21 U.S.C. § 841(a)(1) (2006). On appeal, Lewis
argues that the U.S. Sentencing Guidelines Drug Equivalency
Table’s conversion rate of oxycodone and oxymorphone to
marijuana is arbitrary, excessive, and causes unjust
disparities. Finding no error, we affirm.
At sentencing, defense counsel presented his position
on the disparity between the drug equivalency table for
oxycodone and oxymorphone and other scheduled drugs. See U.S.
Sentencing Guidelines Manual § 2D1.1(a)(3), (c) (2011). Counsel
asked the court “to employ . . . a lower standard . . . and use
that equivalency rate as the rate by which the conversion should
be established.” The court heard argument from Lewis and the
Government and denied Lewis’s request for a downward variance.
The court gave extensive reasoning supporting its decision to
deny the variance request and sentenced Lewis to 92 months—the
bottom of the Guidelines range.
We review a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to inspect
the sentence for procedural reasonableness by ensuring that the
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district court committed no significant procedural errors, such
as improperly calculating the Sentencing Guidelines range,
failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or
failing to adequately explain the sentence. United States v.
Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). We then
consider the substantive reasonableness of the sentence imposed,
taking into account the totality of the circumstances. Gall,
552 U.S. at 51. If the sentence is within the Guidelines range,
this court presumes on appeal that the sentence is reasonable.
United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see
Rita v. United States, 551 U.S. 338, 346-56 (2007) (permitting
appellate presumption of reasonableness for within-Guidelines
sentence).
The only issue Lewis raises on appeal is whether the
marijuana equivalent for oxycodone and oxymorphone, as amended
by Amendment 657, is arbitrary, excessive, and causes unjust
sentencing disparities. Amendment 657 changed the marijuana
equivalent for oxycodone in two respects. First, it based the
equivalent on the amount of actual oxycodone involved rather
than on the gross weight of the pills containing oxycodone.
Second, it made one gram of oxycodone equivalent to 6700 grams
of marijuana, rather than one gram of pill weight equivalent to
500 grams of marijuana. It also made one gram of oxymorphone
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equivalent to 5000 grams of marijuana. See USSG, App. C, vol.
II.
Lewis argues that the conversion rates for oxycodone
and oxymorphone are arbitrary and are not based upon scientific
study or empirical data. He contends that these drugs should
not be treated more severely than heroin. He argues that this
unsupported distinction violates his due process rights and
conflicts with 18 U.S.C. § 3553(a)(6)’s admonition to avoid
“unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” Id.
The Government responds that the district court properly
calculated Lewis’s sentence and that it is reasonable. As to
the drug equivalency argument, the Government notes that Lewis’s
argument that the conversion formula creates an unwarranted
disparity when compared to other opiates is flawed. Lewis
attempts to compare equal drug weights of different drugs and
then note the disparity in their marijuana equivalency. For
instance, one gram of morphine converts to 500 grams of
marijuana, far less than the conversion rate of oxymorphone or
oxycodone. However, the entire weight of morphine is used to
calculate quantity and only the active ingredient in oxymorphone
and oxycodone is used. Therefore, the conversion rates are
based on different factors and do not lend themselves to
mathematical comparison.
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Lewis argues that no empirical data or studies exist
to support the harsh treatment of prescription drugs. However,
the Government points the court to an article published by the
President’s Office of National Drug Control Policy (ONDCP). The
article states that the “Centers for Disease Control and
Prevention [(CDC)] has classified prescription drug abuse as an
epidemic.” The article indicates that “data from the National
Survey on Drug Use and Health (NSDUH) show that nearly one-third
of people aged 12 and over who used drugs for the first time in
2009 began by using a prescription drug non-medically.” The
article continues that individuals who use these drugs,
particularly teenagers, believe the drugs are safer than illicit
drugs because they require a prescription that is filled at a
pharmacy. 1 The ONDCP article also referenced a study by the CDC
that compared unintentional overdose deaths involving opioids,
cocaine, and heroin in the United States between 1999 and 2007. 2
During that time period, deaths from opioids rose from 3000 in
1
Available at http://www.whitehouse.gov/ondcp/prescription-
drug-abuse.
2
These statistics come from the CDC’s Unintentional Drug
Poisoning in the United States (July 2010), available at:
http://www.cdc.gov/HomelandRecreationalSafety/pdf/poison-issue-
brief.pdf.
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1999 to almost 12,000 in 2007. 3 The article and study provide
empirical justification for the drug equivalency table and
demonstrate that its distinctions are not arbitrary and do not
cause unwanted sentencing disparities.
At sentencing, the court enumerated its reasons for
following the drug equivalency table. These included the
assumed safety of taking a prescription drug and the rise of
distribution of oxycodone, particularly in the local community.
These statements are supported by the policy article and studies
cited by the Government. The court recognized its discretion to
vary and declined to exercise it. Lewis was sentenced within
the Guidelines range, at the lowest end, and he has not rebutted
the presumption that his sentence is reasonable.
We therefore affirm the judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
3
Oxycodone and oxymorphone are both defined as opiates.
See USSG § 2D1.1, comment. (n.10(D)).
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