UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA )
v. ) Case No. 2:13-CR-20
) JUDGE GREER
JASON GLENN CATOE )
UNITED STATES=SENTENCING MEMORANDUM
Comes the United States of America, by and through William C. Killian, United States Attorney for the Eastern District Tennessee and as directed by the Court submits the following sentencing memorandum.
Statement of the Case
As set forth in the plea agreement (R. 3), beginning in approximately March 2011 Jason Catoe, assisted by other parties, opened a "head shop" called "Ultimate Smoke" in Kingsport, Tennessee. The business was first located on Fuller Street and later moved to a location on East Center Street. As further described below, the business sold synthetic drugs, "bath salts" and "incense," as well as drug paraphernalia for the ingestion of the controlled substances and controlled substance analogues.
Ultimate Smoke generated substantial cash income, with "Crystal Clean," a synthetic cathinone, being one of the business's best-selling products. Ultimate Smoke also sold large quantities of synthetic cannabinoids. At one point, a supplier began providing the synthetic cannabinoids to Catoe in bulk for the product to be packaged for individual sale at Ultimate Smoke. Catoe and all the employees knew the products were being sold for human consumption, that is, "to get high." Catoe collected the sales proceeds from the store nightly. Catoe was also the person who ordered additional products from suppliers.
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On August 31, 2011, Sullivan County Sheriff's Office (SCSO) detectives, acting
undercover, purchased "bath salts" and "incense" from Ultimate Smoke on East Center Street. The "bath salts" were in a round container labeled "Crystal Clean" and the "incense" was in a plastic bag labeled "Mad Hatter 1G." Subsequent testing by the DEA Laboratory determined "Crystal Clean"to be methylethcathinone;4-methylethcathinone is an analogue of the controlled substance cathinone, a Schedule I controlled substance. The DEA Laboratory determined "Mad Hatter" to be an analogue of JWH-018, a synthetic cannabinoid placed on Schedule I in March 2011. Based upon the packaging and marketing of these products, these products were intended for human consumption as stimulants and hallucinogens despite labeling claiming the products were not for human consumption.
On November 2, 2011, SCSO detectives, again acting undercover, purchased a vial containing a white powder and labeled "Drone V" at Ultimate Smoke on East Center Street in Kingsport. The detectives also purchased a round container containing a white powder and labeled "Pump-It." The detectives paid cash for all the purchases. Subsequent testing by the DEA Laboratory confirmed "Drone V" to be a methylcathinone analogue and "Pump-It" to be pentedrone, an analogue of methylcathinone, a Schedule I controlled substance. Based upon the packaging and marketing of these products, these products were intended for human consumption as stimulants and hallucinogens despite labeling claiming the products were not for human consumption.
On February 21, 24, and 25, 2012, Kingsport Police Department (KPD) Vice Unit investigators, acting undercover, made additional purchases of "Crystal Clean," "Mad Hatter," and two additional products, to include “Summit.”
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A federal search warrant was executed at Catoe’s residence in Jonesborough, Tennessee
on March 2, 2012. Agents recovered $290,794.00 in cash from a safe at the residence. In addition to five firearms and two bullet-proof vests, agents recovered synthetic drugs labeled “Mary Joy,” “K2 Summit,” “Hammer Head,” “Wacked,” “Outer Limits,” “Zombie,” “Happy Hour Passion Fruit,” “Mad Hatter,” Mystery Machine,” and “Da Bomb.” As noted earlier, “Mad Hatter”was determined to contain a Schedule I controlled substance analogue as defined in 21 U.S.C. § 802(32), that is, 1-(5-Fluoropentyl)-3-(1-naphthoyl) indole (AM2201), an analogue of the Schedule I controlled substance 1-pentyl-3-(1-naphthoyl) indole (JWH-018).
The parties agreed that, for purposes of the application of Section 2D1.1(c), the quantity of synthetic cannabinoids was the equivalent of at least 100 KG but not more than 400 KG of marijuana.
The presentence report (PSR) found that, with a total offense level of 25 and a criminal history category of I, Catoe’s imprisonment guidelines range is 57 to 71 months. The Court must impose a term of supervised release range of at least three years. 21 U.S.C. § 841(b)(1)(C). The fine range is $10,000 to $1,00,000, and the PSR found that Catoe does have the ability to pay a fine.
The United States=Sentencing Recommendation
As Section 3553(a) provides, Athe court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of the subsection. @18 '
U.S.C. 3553(a). Those purposes include the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, and to afford adequate deterrence to criminal conduct. 18 U.S.C. 3553(a)(2).
As the Court is aware, the position of the United States is that, absent unusual circumstances, the sentence in a criminal case should fall within the sentencing guideline ranges as
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determined by the Court. This view is shared by Congress and the Supreme Court. As every Supreme Court justice in the various opinions in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), recognized, the Sentencing Guidelines carry out the express national policy, as articulated by Congress, that sentences be uniform across the country to the extent possible and be=
based on the offender s actual conduct and history. See, e.g., id. at 253 (majority opinion of Breyer, J.) ( ACongress=basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity. @); id. at 250 (same) ( ACongress=basic statutory goal -- a system that diminishes sentencing disparity -- depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction.@); id. at 292 (dissenting opinion of Stevens, J.) ( AThe elimination of sentencing disparity, which Congress determined was chiefly the result of a discretionary sentencing regime, was unquestionably Congress=principal aim.@); id. at 303-04 (dissenting opinion of Scalia, J.) (Athe primary objective of the Act was to reduce sentencing disparity. @).
As the Supreme Court has held, a sentence within a properly determined advisory sentencing guidelines range is entitled to a Apresumption of reasonableness@on appellate review. Rita v. United States, 551 U.S. 338, 347-48 (2007). See also United States v. Williams, 436 F.3d 706, 707 (6th Cir. 2006) (a sentence properly calculated under the Sentencing Guidelines has a Arebuttable presumption of reasonableness @). Thus, where a sentencing judge selects a sentence within the advisory guidelines range, Athe presumption reflects the fact that . . . both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one.@Rita, at 347 (emphasis in original).
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Here, the starting point for the Court =s application of ' 3553(a) is the advisory guidelines imprisonment range. With a criminal history category of I and an offense level of 25, Catoe’s imprisonment guidelines range is 57 to 71 months.
The only sentencing factor which has not been taken into account in the advisory guidelines ranges is Catoe=s testimony against suppliers. As set forth in the United States’ memorandum in support of its motion for downward departure, the United States has recommended that the Court depart downwardly one level pursuant to Section 5K1.1, U.S. Sentencing Guidelines, resulting in an effective imprisonment guidelines range of 51 to 63 months. Consideration of the sentencing factors set forth in 3553(a) demonstrates that a sentence within that range would be appropriate.
WILLIAM C. KILLIAN
United States Attorney
By: s/M. Neil Smith
M. NEIL SMITH
Assistant U.S. Attorney
Tenn. BPR No. 010615
220 W. Depot Street, Suite 423
Greeneville, Tennessee 37743
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CERTIFICATE OF SERVICE
I hereby certify that on January 16, 2014, a copy of the foregoing Memorandum was filed
electronically. Notice of this filing will be sent by operation of the Court s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served byregular U.S. mail. Parties may access this filing through the Court s electronic filing system.
s/M. Neil Smith
M. NEIL SMITH
Assistant U.S. Attorney
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