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3d Circuit: Counsel’s Failure to Investigate Drug Properties for Analogous Drug Comparison at Sentencing Constitutes Ineffective Assistance

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit ruled that an attorney’s failure to investigate the properties of methylone after the pre-sentence report (“PSR”) stated the drug was analogous to methylenedioxy-methamphetamine (“MDMA” or “ecstasy”) constituted ineffective assistance of counsel.

While Peter Sepling was on bond awaiting sentencing for importing gamma butyrolactone (“GBL”), he was arrested on conspiracy to import methylone. A search incident to that arrest recovered 3 kilograms of methylone, but a later investigation discovered the conspiracy involved 10 kilograms. Sepling accepted responsibility for the methylone, and the Government agreed not to prosecute Sepling on charges related to the methylone. However, the Government did use the circumstances surrounding the methylone at Sepling’s sentencing for the GBL. Because the Guidelines do not reference methylone, the probation officer selected MDMA from a drug conversion table as being most analogous to methylone when preparing the PSR. The conversion table states that one unit of MDMA is equivalent to 500 units of marijuana.

While Sepling believed he was responsible for only 3 kilograms of methylone, the PSR held him responsible for 10 kilograms. Using the 500-to-1 ratio, the PSR suggested that Sepling’s involvement with the methylone was the equivalent of conspiring to distribute 5,000 kilograms of marijuana. During the sentencing hearing for the GBL, the Government informed the district court that it knew next to nothing about methylone. Defense counsel likewise told the court he had never heard of methylone but permitted Sepling to testify that it was “like a watered down ecstasy” and “if ecstasy was a 10, methylone is a six.” The sentencing judge admitted he knew nothing about methylone, though he “read about ecstasy.... but I will accept the fact that it’s somewhat less of an impact than ecstasy.” Defense counsel made no objection to the 500-to-1 ratio nor to the methylone/MDMA analogy.

The court sentenced Sepling to 102 months’ imprisonment, explaining, “[y]ou’ve committed a serious crime here, and it’s—in particular the methylone and that you put people in harm’s way, and this is why I’m sentencing you.” Sepling subsequently filed a 28 U.S.C. § 2255 motion to set aside or correct his sentence based on ineffective assistance of counsel, alleging, inter alia, counsel failed to educate himself and the sentencing court about methylone and the MDMA Guideline analog.

The Third Circuit observed that it is “now firmly established that a defendant’s right to effective representation extends to sentencing hearings.” Glover v. United States, 531 U.S. 198 (2001). To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) his counsel’s performance was deficient, and (2) if not for counsel’s deficient performance, there is a reasonable probability the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984). It is the responsibility of counsel to ensure that the PSR’s calculations are correct and that the court has the information needed to conduct a fair sentencing hearing. American Bar Association (“ABA”) Standards for Criminal Justice Prosecution Function and Defense Function 4-8.1(b) (3 ed. 1993). The Supreme Court has advised courts to look to those ABA standards in determining what is required of counsel. Strickland. Further, attorneys are to conduct adequate investigation in order to make strategic decisions. Id.

In the instant case, Sepling’s counsel conducted no investigation into methylone or into the MDMA analog. Instead, he allowed Sepling to testify that methylone was a “watered down” version of MDMA. Had counsel properly investigated, he would have discovered methylone is structurally different from MDMA. Drug Enforcement Administration, Drug & Chemical Evaluation Section, 3, 4 methylenedioxy-methamphetamine (Methylone) (October 2013). This means that MDMA is, arguably, not analogous to methylone. U.S.S.G. § 2D1.1, comment n. 6.

But even assuming the MDMA analog were correct, the 500-to-1 ratio had been discredited. In United States v. McCarthy, 2011 WL 1991146 (S.D.N.Y. 2011), the court rejected the 500-to-1 ratio because there was no expert evidence that MDMA is more harmful than cocaine. The McCarthy court instead settled on a 200-to-1 ratio. Furthermore, the Third Circuit cited numerous scientific studies that would have been available to counsel that showed: (1) the research relied upon by the Sentencing Commission when establishing the 500-to-1 ratio was horribly flawed and had been discredited; (2) the effects of MDMA upon users were significantly less than effects of other controlled substances, and those other substances had a far lower ratio; and (3) the effects of methylone are significantly less than those of an equivalent dose of MDMA.

Because counsel failed to investigate, he was unable to apprise the district court of these facts. As a result, the sentencing court began with the presumption of a 500-to-1 ratio, and there was a reasonable probability that had the court been informed of the fallacy of that ratio, Sepling’s sentence would have been different.

Accordingly, the Court vacated the order denying Sepling’s § 2255 motion and remanded for further proceedings consistent with its opinion. See: United States v. Sepling, 944 F.3d 138 (3d Cir. 2019). 

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United States v. Sepling



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