Let's say you're a drug dealer, but the particular pills you peddle aren't exactly mainstream; in fact they're not even included in the U.S. Sentencing Commission's Drug Quantity Table, even though they're illegal.
Now let's say you get busted. How is a judge supposed to sentence you?
The answer: He picks a drug on the chart that most resembles the drug you were caught selling, then he relies on a special sentencing algorithm that uses marijuana as the common denominator.
In the federal court case of Brandon Bennett, a 23-year-old caught dealing 330 grams of BZP in the Kansas City area three years ago, the defendant says that rationale makes no sense. Since BZP, a piperazine-based recreational synthetic, is not on the federal drug chart, Bennett wants to know why he was sentenced as if he'd dealt 330 grams of Ecstasy -- or, if you like, 165 kilos of pot -- each of which carry a minimum punishment of four years and nine months in prison.
After he lost at the district level, Bennett took his case to the U.S. Court of Appeals for the Eighth Circuit. On Wednesday, the appeals court affirmed the district judge's ruling.
BZP, or Benzylpiperazine, is a euphoria-producing stimulant that's comparable, but not identical, to an amphetamine. It's illegal in the United States, but legal in Canada.
Ecstasy is an amphetamine that Bennett argues is much more harmful than BZP.
Before his sentencing, Bennett filed a memo arguing that "[b]ecause the Sentencing Commission has not studied BZP, the court has no basis to defer to the advisory guideline range as a reasonable sentence." He attached a study from the National Drug Intelligence Center indicating that the typical dosage of BZP ranges from 20 to 200 milligrams, and that "BZP is 10 to 20 times less potent than amphetamine." Finally, he argued that the court "ignored undisputed scientific studies and legal authority that demonstrated BZP is significantly less serious, less harmful, and less dangerous than both MDMA [Ecstasy] and amphetamine."
"Our big thing was that there were no guidelines on BZP, which is really about a third as serious as Ecstasy," Steve Moss, Bennett's Kansas City attorney, tells Daily RFT. "We thought the sentence should be about a third of what it was, because we think it's a third as comparable."
After hearing that argument, Judge Greg Kays continued Bennett's sentencing and called for an investigation report, looking into federal statute on the comparison of drugs, boxed below.
In the case of a controlled substance that is not specifically referenced in this guideline, determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline. In determining the most closely related controlled substance, the court shall, to the extent practicable, consider the following:
(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.
(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.
Judge Kays convened a new hearing in October 2010. By this time Bennett's family and friends submitted letters on his behalf. But Kays was not inclined to change his mind.
"Mr. Moss made some pretty good arguments during the course of this case that required me to do some research and required the probation people to -- to look at this drug that we're dealing with, this -- this BZP."
The judge continued: "While it may not be in the sentencing guidelines, [BZP] is illegal. It does affect the community. It does hurt children. It does hurt people in our community. So with that said, I -- I think I fashioned a sentence that I hope is consistent with our -- with the guidelines."
This week the court of appeals sided with Judge Kays. In their opinion the judges said: "Although the district court did not explain in these precise terms its conclusion that BZP and MDMA were sufficiently equivalent for guidelines purposes, the record shows that the district court considered these and other characteristics of the drugs."