           Case: 14-10957   Date Filed: 12/01/2014   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10957
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20537-DLG-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JOSE RAFAEL MARTE,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (December 1, 2014)

Before TJOFLAT, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
               Case: 14-10957      Date Filed: 12/01/2014     Page: 2 of 4


       Jose Marte appeals his sentence of 97 months of imprisonment that was

imposed after he pleaded guilty to possessing with intent to distribute 11 grams of

3,4-methylenedioxy-N-methylcathinone (methylone). 21 U.S.C. § 841(a)(1); 18

U.S.C. § 2. Marte argues that the district court clearly erred in determining the base

offense level for his offense. We affirm.

       Methylone is a Schedule I drug, 21 C.F.R. § 1308.11(d)(47), but it is not

included in the Sentencing Guidelines’ drug quantity table, see United States

Sentencing Guidelines Manual § 2D1.1(c) (Nov. 2013). As a result, the base

offense level for methylone is computed using the marijuana equivalency of the

most closely related controlled substance that is listed in section 2D1.1(c). Id. cmt.

n.6. To determine what controlled substance in the drug table is most closely

related, the district court is required, “to the extent practicable, to consider” three

kinds of information: (1) “[w]hether the controlled substance not [listed] . . . has a

chemical structure that is substantially similar to a controlled substance referenced

in” section 2D1.1(c); (2) “[w]hether the controlled substance not [listed] . . . has a

stimulant, depressant, or hallucinogenic effect on the central nervous system that is

substantially similar to . . . [the] effect[s] . . . of a controlled substance referenced

in” section 2D1.1(c); and (3) “[w]hether a lesser or greater quantity of the

controlled substance not [listed] . . . is needed to produce a substantially similar




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effect on the central nervous system as a controlled substance referenced in”

section 2D1.1(c). Id.

      The district court did not clearly err in finding that methylone was most

closely related to MDMA for purposes of determining Marte’s base offense level.

Undisputed testimony from Dr. Cassandra Prioleau, a pharmacologist for the Drug

Enforcement Agency, established that the Agency used a widely accepted

methodology to determine that methylone is “most related” to MDMA; methylone,

like MDMA, acts as a stimulant on the central nervous system; and methylone is

half as potent as MDMA. The district court was entitled to find that methylone was

most closely related to MDMA based on the shared characteristics of the two

controlled substances. Because one gram of MDMA is equivalent to 500 grams of

marijuana, the district court reasonably determined that one gram of methylone

was equivalent to 250 grams of marijuana and then applied that ratio to calculate

Marte’s base offense level.

      Marte challenges the decision on two grounds, both of which fail. First,

Marte argues that the government failed to prove that methylone has a chemical

structure that is substantially similar to MDMA, but Prioleau explained that the

Agency determined the relationship between methylone and MDMA by

“evaluat[ing] . . . chemical structure.” In any event, the commentary to section

2D1.1 does not impose a duty on the government to produce evidence about every


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feature of a controlled substance; instead, it instructs the district court to consider

the features “to the extent practicable.” U.S.S.G. § 2D1.1 cmt. n.6. Second, Marte

argues that methylone should be treated as a Schedule I or II depressant that has a

more favorable 1:1 ratio to marijuana, but the substance is classified in the

regulations as a Schedule I hallucinogenic, 21 C.F.R. § 1308.11(d)(47).

      We AFFIRM Marte’s sentence.




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