from the United States District Court for the Western
District of Louisiana
STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
E. STEWART, CHIEF JUDGE
criminal appeal returns to this court after Stanford was
resentenced following this court's decision in United
States v. Stanford remanding the case "for any
other proceedings as needed." Back before this court on
appeal, Stanford, in addition to alleging various errors in
the district court's redetermination of his guideline
range, argues that the district court erred in denying his
request for in camera review of various co-conspirator
witness reports and requests that this court reassign the
case to a different district court judge. Because the
district court did not commit reversible error, we AFFIRM.
Stanford's request for reassignment of the case to a
different district court judge is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL
September 4, 2012, Stanford and eight co-conspirators were
indicted for their then-alleged involvement in a conspiracy
to distribute a controlled substance analogue
("CSA"), in violation of 21 U.S.C. §§
841, 846(b)(1)(c), 813, and 802(32)(A).
relevant here, Stanford was charged with: (1) conspiracy to
distribute a CSA ("Count One"); conspiracy to
introduce and cause to be introduced misbranded drugs into
interstate commerce ("Count Two"); and conspiracy
to engage in money laundering ("Count Three")
(collectively, "Counts One, Two, and Three"). At
the time of his indictment, Stanford was a practicing
criminal defense lawyer in Lafayette, Louisiana. The product
in question, "Mr. Miyagi, " is a synthetic
cannabinoid, and contained a Schedule I CSA known as
"AM- 2201." Prior to trial, the parties quarreled
as to whether Count One required an instruction to the jury
that they must find, as an element of the CSA conspiracy,
that Stanford knew AM-2201 was a CSA.
district court concluded that such knowledge was not
required, but acknowledged that the question was the subject
of a circuit split. The district court agreed to send the
issue to the jury as an interrogatory and permitted Stanford
to put on evidence addressing his knowledge that AM-2201 was
a CSA. In fact, the district court's language was more
emphatic, stating that the "question of knowledge needs
to be addressed in th[e] trial." After a 10-day jury
trial, on August 20, 2014, the jury found Stanford guilty on
Counts One, Two, and Three. In a special interrogatory, the
jury concluded that Stanford knew that AM-2201 was a CSA. On
January 15, 2015, the district court sentenced Stanford to
121 months' imprisonment, grouping Counts One and Two and
applying the base offense level calculated for Count One as
the underlying offense for purposes of calculating the base
offense level for Count Three. The sentences on Count One and
Count Three ran concurrently. Stanford timely appealed.
Stanford I, Stanford challenged his convictions on
Count One and Count Three. He also argued that the Government
ran afoul of Brady v. Maryland, 373 U.S. 83 (1963)
by failing to turn over witness reports of co-defendants Dan
Francis, Boyd Barrow, Drew Green, and Joshua Espinoza.
Applying the Supreme Court's intervening ruling in
McFadden v. United States, the Stanford I
panel agreed with Stanford's challenge to his conviction
on Count One. See ___ U.S. ___, 135 S.Ct. 2298
(2015). The McFadden decision resolved the knowledge
dispute in Stanford's favor, holding that a
defendant's knowledge that a CSA was indeed a CSA is an
element necessary to secure a conviction under 21 U.S.C.
§§ 846 and 841(b)(1)(C). See id. at 2305.
In light of that holding, the Stanford I panel
concluded that the district court's failure to properly
instruct the jury with respect to knowledge was not harmless
error. Stanford I, 823 F.3d at 827-38.
Notwithstanding that conclusion, the Stanford I
panel "affirmed the sentence and conviction on all other
counts, and remand[ed] for [any other] proceedings as
needed." Stanford I, 823 F.3d at 822, 852.
remand, the district court, despite feeling constrained from
doing so in light of Stanford I's mandate,
resentenced Stanford on the remaining convictions-namely,
Count Two and Count Three. The district court imposed the
same sentence of 121 months' imprisonment on Count Three,
arriving at the base offense level for Count Three through
the calculation of the guideline range applicable to Count
Two. The district court also reiterated its Brady
ruling on remand, summarily rejecting Stanford's request
for the same witness reports. Stanford timely appealed these
rulings. In addition, Stanford requests that this panel
reassign the case to a different district court judge.
parties understandably spend considerable time on appeal
briefing whether Stanford was entitled to resentencing,
focusing on the repercussions of Stanford I's
mandate and the perceived oral argument concession embodied
in footnote 35 of the Stanford I opinion.
Nevertheless, we decline to address the applicability of the
mandate rule to Stanford's entitlement to resentencing.
Instead, we will proceed to the merits of the sentencing
issues raised because there was no reversible error. See
United States v. Simpson, 796 F.3d 548, 552 n.7 (5th
Cir. 2015) (reaching merits to affirm after reminding that
mandate rule is discretionary rather than jurisdictional).
Application of Sentencing Guidelines at Resentencing
court reviews a district court's interpretation and
application of the Guidelines, including any cross references
and selection of the applicable sentencing guideline, de
novo. See United States v. Grant, 850 F.3d 209, 219
(5th Cir. 2017) (citation omitted); United States v.
Johnston, 559 F.3d 292, 294 (5th Cir. 2009) (citation
omitted). Where a party fails to present an argument to the
district court, however, this court reviews the sentencing
objection for plain error. See United States v.
Hughes, 726 F.3d 656, 659 (5th Cir. 2013). "If
procedural error occurs, harmless error review applies."
United States v. Clay, 787 F.3d 328, 330 (5th Cir.
2015) (citation omitted). Commentary in the Guidelines Manual
that interprets or explains a guideline "is
authoritative unless it violates the Constitution or a
federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline." United States
v. Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011).
argues that the district court committed reversible error in
its interpretation and application of the Guidelines for
Count Two and, by extension, Count Three. Specifically,
Stanford argues that the district court erred by: (1) failing
to select the applicable guideline in the manner prescribed
by the Guidelines; and (2) applying cross reference U.S.S.G.
§ 2N2.1(c)(2). We disagree.
Selection of Applicable Guideline
first address Stanford's argument that the district court
committed reversible error when purportedly bypassing
selection of the most appropriate guideline in the manner
instructed by U.S.S.G. §§ 1B1.1(a)(1) and 1B1.2(a).
steps for determining the applicable guideline is not for
this court to decide. That method is clearly set forth in the
Guidelines. As this court recently reminded in
Grant, the selection of the applicable guideline
begins with reference to, first, the count of conviction,
and, then, the Statutory Index.See 850 F.3d at 209. The
Statutory Index of the Guidelines provides the applicable
offense guidelines for various criminal statutes.
See U.S.S.G. app. A (2016). In the simplest cases, a
statute will have only one applicable guideline listed in the
Statutory Index. Where, however, the Statutory Index provides
more than one applicable guideline for a statute, the
Guidelines instruct district courts to "determine which
of the referenced guideline sections is most appropriate for
the offense conduct charged in the count of which the
defendant was convicted." U.S.S.G. 1B1.2(a) & cmt.
n.1; see also United States v. Principe, 203 F.3d
849, 851 (5th Cir. 2000). While "the allegations in the
indictment" serve as the critical piece "to [the]
determin[ation] [of] whether the alleged offense more closely
resembles [one guideline over the other], " see,
e.g., Grant, 850 F.3d at 219, 220 n.2., this
court also employs the text of the potential guidelines and
statute of conviction to assist in the inquiry.
Principe, 203 F.3d at 851-53. In addition, this
court considers the type of conduct that the statute was
designed to punish. Id.
contends that the district court failed to follow the
directions of U.S.S.G. §§ 1B1.1(a)(1) and 1B1.2(a)
when selecting the applicable guideline, and, in doing so,
improperly selected U.S.S.G. § 2N2.1 rather than
U.S.S.G. § 2B1.1 as the offense guideline applicable to
the offense of conviction-the misbranding conspiracy alleged
in Count Two. Pointing to the conduct charged in the
indictment, and this circuit's decision United States
v. Arlen, 47 F.2d 139 (5th Cir. 1991), Stanford contends
that U.S.S.G. § 2B1.1 was the most appropriate guideline
selection because the conduct charged in the indictment for
Count Two demonstrated a quintessential fraudulent scheme.
This selection is particularly clear, Stanford argues,
because the count charged a conspiracy to violate 21 U.S.C.
§ 331 "with the intent to defraud and mislead"
the Food and Drug Administration (FDA) and without that
allegation, a violation of the FDCA is a mere misdemeanor.
The Government counters by arguing that because the
indictment alleged that the sole object of the conspiracy was
to distribute misbranded drugs for profit, U.S.S.G. §
2N2.1 was the appropriate guideline selection. Count Two as a
whole, the Government urges, charges a drug trafficking
offense not a fraud offense. Significant to this contention
is the incorporation of drug trafficking related allegations
from Count One. The Government maintains that U.S.S.G. §
2B1.1 is not meant to address this sort of drug trafficking
scheme involving mislabeled products, directing the
court's attention to the guideline's enhancements and
reasons stated below, we agree with the Government that
U.S.S.G. § 2N2.1 is the most appropriate guideline.
Two of the indictment charges conspiracy to introduce
misbranded drugs into interstate commerce, in violation of 18
U.S.C. § 371 and 21 U.S.C. §§ 331, 333(a)(2).
The Statutory Index for 18 U.S.C. § 371 lists various
guidelines, including U.S.S.G. § 2X1.1. The district
court selected 2X1.1, which sent the district court back to
the guideline of the substantive offense-here, 21 U.S.C.
§§ 331 and 333(a)(2). See U.S.S.G. §
2X1.1(a) (2016). Neither party objected to the district
court's decision to use U.S.S.G. § 2X1.1(a).
Similarly, the parties and the district court focused on
Count Two as the substantive offense driving the calculation
of the base offense level for the money laundering conspiracy
conviction in Count Three.
U.S.C. § 331(a) prohibits introducing or causing to be
"introduc[ed] into interstate commerce any . . . drug .
. . that is adulterated or misbranded." 21 U.S.C. §
331(a). 21 U.S.C. § 333(a)(2) prescribes a penalty
"of not more than three years or [a] fine[ ] not more
than $10, 000, or both" for violations of 21 U.S.C.
§ 331 "with the intent to defraud or mislead."
21 U.S.C. § 333(a)(2).
Statutory Index for 21 U.S.C. § 333(a)(2), addressing,
inter alia, punishment for violations of 21 U.S.C.
§ 331 with an intent to defraud or mislead, lists both
U.S.S.G. § 2B1.1 and U.S.S.G. § 2N2.1 as
potentially applicable guidelines. See U.S.S.G. app.
A (2016). The Statutory Index for 21 U.S.C. § 331(a)
lists only U.S.S.G. § 2N2.1. Id.
district court acknowledged many of the arguments Stanford
advances on appeal and concluded that U.S.S.G. § 2N2.1
was appropriate when viewing Count Two alone. First, the
district court stated that, "even if you confined
yourself just to the language of the indictment in Count 2,
it becomes clear that the underlying offense is the drug
conspiracy." After Stanford himself raised the arguments
he now raises on appeal, the district court responded
"when we look to the indictment itself for Count 2, it
contains the information that the Court has indicated, such
that the Court is on sufficient notice as to what is the
conspiracy." It is clear that the district court, when
cabining its review to the allegations in Count Two,
concluded that the fraud guideline did not adequately account
for offense conduct charged in Count Two, and that it was
not, as Stanford suggested, restricted to applying that
guideline in light of Arlen and Grant.
Instead, the district court selected U.S.S.G. § 2N2.1.
Irrespective of the district court's approach, we
independently conclude that U.S.S.G. § 2N2.1 was the
most appropriate guideline.
the selection between U.S.S.G. § 2N2.1 or U.S.S.G.
§ 2B1.1 is not an issue of first impression, making the
selection upon this factual backdrop appears rare. That is,
the selection is typically made in cases that concern drugs
generally regulated by the FDA rather than, as here, a CSA.
Cf. United States v. Ihenacho, 716 F.3d 266, 276
(1st Cir. 2013) (selecting U.S.S.G. § 2B1.1 rather than
U.S.S.G. § 2N2.1 in a case involving both controlled and
non-controlled substances). Stanford argues that this
distinction is not meaningful, reasoning that a non-compliant
FDA-regulated drug is no different than a non-compliant
controlled substance for purposes of this analysis. In light
of the conduct charged in Count Two of the Indictment, we
Two of the Indictment alleges, in relevant part, that the
FDA, in its authority as the regulator of drugs, as that term
is defined by 21 U.S.C. § 321(g), ensures that drugs
are, among other things, properly labeled for their intended
uses before they can be legally marketed in interstate
commerce. Count Two goes on to explain that the Federal Food,
Drug, and Cosmetic Act ("FDCA") prohibits the
manufacture, introduction or delivery for introduction, and
receipt of misbranded drugs. Clarifying the meaning of
misbranded, Count Two of the Indictment states that a drug is
misbranded if the labeling was: (1) false and misleading; (2)
lacked the name and place of business of the manufacturer; or
(3) lacked adequate directions for use. Before proceeding to
the conspiracy allegations, object of the conspiracy, and
overt acts, Count Two of the Indictment incorporated
paragraphs D through H of Count One. These paragraphs all
related to the sale and manufacture of "Mr.
Miyagi." The Conspiracy portion of Count Two of the
Indictment alleges that Stanford and his cohorts, "with
intent to defraud and mislead, did knowingly and
intentionally combine . . . to [violate the FDCA] . . . [by]
receiv[ing], manufactur[ing], packag[ing], hold[ing] for
sale, distribut[ing], introduc[ing], and caus[ing] the
introduction . . . drugs that were misbranded."
object of the conspiracy, Count Two of the Indictment goes on
to allege, was to "distribute . . . to consumers and
other distributors, misbranded drugs for profit." Count
Two of the Indictment ends with the listing of two overt acts
that Stanford and co-conspirators took in furtherance of the
conspiracy: (1) packaging Mr. Miyagi with a misleading
"directions for use, " "warning, " and
listing of wrong ingredients; and (2) advising individual
franchise owners of Curious Goods L.L.C. on how to store,
display, and sell the Mr. Miyagi products, how to detect and
evade law enforcement, and how to respond to customers who
asked questions about how to use the products and/or the
physiological effects of the Mr. Miyagi products.
this backdrop, the court is tasked with solving one principal
question: what offense guideline accounts for the ...