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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA
v.
HAROLD BATES,
Defendant.

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No. 14-Cr-10088-PBS

GOVERNMENT’S SENTENCING MEMORANDUM
Harold Bates is a career offender who, for the past decade, has been in a revolving door
with the criminal justice system. In 2005, Bates was charged with (and subsequently convicted
of) receiving stolen property over $250. (PSR ¶ 67). In 2007, Bates was charged with (and
subsequently convicted of) possession with intent to distribute a class B drug (oxycodone). (PSR
¶ 68). In 2008, while on state court probation, Bates was charged with (and subsequently
convicted of) possession with intent to distribute a class A drug (heroin). (PSR ¶ 69). In 2009,
while still on state court probation, Bates was charged with (and subsequently convicted of) theft
by failure to make required disposition of property under $300. (PSR ¶ 70). In 2010, while on
state court probation, Bates was charged with (and subsequently convicted of) armed robbery
(knife). (PSR ¶ 71). At that point, his criminal conduct stopped only because he was
incarcerated.
Shortly after his release from state prison, however, Bates picked up where he left off.
By October 2013, Bates began importing methylone, a Schedule I controlled substance, from
China. As detailed in the PSR, between October and December 2013, Bates was personally
responsible for importing multiple kilograms of methylone from China. (PSR ¶ 43). Among
other things, Bates: (1) located the source of supply; (2) personally negotiated the price and

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quantity via email and Skype; (3) warned his supplier about law enforcement efforts to intercept
methylone packages from China; (4) arranged for others to receive the packages of methylone on
his behalf; and (5) arranged for others assist in sending payments to China for the drugs. (PSR
¶¶ 14-16). Upon his arrest on state charges on December 7, 2013, Bates initially agreed to
cooperate with law enforcement and provided law enforcement officers access to the email and
Skype accounts that he used to communicate with his Chinese suppliers. However, shortly after
his release from state custody on December 9, 2013, Bates changed his password to both accounts,
thereby preventing law enforcement officers from further access of these accounts. (PSR ¶ 26).
Thereafter, Bates continued his illegal activities by obtaining another package from China, which
he retrieved from a U.S. Post Office by falsely claiming to be “Jeff O’Connor.” (Id.). Bates’s
criminal conduct continued unabated even after being arrested on federal charges – prior to
voluntarily surrendering and being taken into custody, Bates inserted 4.70 grams of alpha-PVP, a
Schedule I controlled substance, into his rectum, which he then smuggled into the Essex County
Correctional Facility. (PSR ¶¶ 27-30).
In light of this extensive criminal conduct and consistent with all of the relevant factors set
forth in 18 U.S.C. § 3553(a), the Government recommends that Bates be sentenced to a term of
incarceration of 120 months in prison to be followed by a four-year term of supervised release. In
making this recommendation, the Government notes that Bates’s criminal conduct is serious: he
imported a substantial quantity of methylone, a dangerous drug that has become an increasing
problem nationwide, and he attempted to smuggle a hallucinogenic drug (alpha-PVP) into a
detention facility. Moreover, the Government further notes that Bates’s prior record reflects a
conviction for a violent offense (armed robbery) and that Bates has repeatedly been shown
leniency in the state court system, which he has consistently abused by committing new crimes
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while on probation. As a result, a lengthy term of incarceration is necessary to punish Bates, to
protect the public from further criminal conduct by Bates, and to deter others from engaging in
similar criminal conduct. At the same time, the Government recognizes that Bates has struggled
with addiction and that many of his crimes have occurred while addicted. Taking into account all
of these factors as required under 18 U.S.C. § 3553(a), the Government believes that a 120-month
sentence is sufficient, but not more than necessary, to punish Bates for his criminal conduct.
I.

BATES’S ADVISORY GSR IS 151-188 MONTHS
In the final Presentence Report, the Probation Office determined that Bates was a career

offender. This determination was based on the fact that Bates has two qualifying drug and one
crime of violence convictions: (1) Possession with Intent to Distribute Oxycodone in 2008 (PSR
¶ 68); Possession with Intent to Distribute Heroin in 2009 (PSR ¶ 69), Armed Robbery in 2010
(PSR ¶ 71). As a result, Bates’s Total Adjusted Offense Level (with acceptance of responsibility)
is 29, his Criminal History Category is VI, and his advisory GSR is 151-188 months.1
II.

SENTENCING FACTORS UNDER 18 U.S.C. § 3553(a)
Consideration of the § 3553(a) factors demonstrates that a sentence of 120 months is

sufficient, but not greater than necessary, to meet the goals of sentencing.
A.

Nature of the Offense

Bates was a significant wholesale distributor of methylone.

In a relatively short period

time (i.e., less than three months), Bates imported multiple kilograms of methylone from China
redistribution in Massachusetts.

He dealt directly with the Chinese supplier and ordered

half-kilograms or kilogram quantities at a time.

Contrary to the suggestion in his sentencing

1

Absent consideration of the career offender guideline, Bates’s Total Adjusted Offense
Level would have been 27, his CHC would have been IV, and his advisory GSR would have
been 100-125 months.
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memorandum, Bates was not a street-level dealer selling drugs simply to maintain his own
addiction. (Def. Sent. Mem. at 4).

Rather, he played a central role in making substantial

quantities of methylone available to users in Massachusetts, and he undoubtedly profited in
connection with his sales of the drug.
To give a sense of proportion, Bates’s base offense level of 30 for the quantity of
methylone he imported is same the base offense level that would be used in connection with the
sentencing of a defendant being held accountable for between 1 and 3 kilograms of heroin or a
defendant being held accountable for between 5 and 15 kilograms of cocaine. See U.S.S.G.
§ 2D1.1(c)(5).

These are significant wholesale quantities.

Simply put, Bates was a substantial importer and wholesaler of a dangerous drug that has
only recently emerged in the United States, with often dangerous consequences to its users.

As

discussed in the PSR, methylone (also known as “molly” by users) is a synthetic drug that is
chemically and pharmacologically similar to amphetamine and ecstasy that has been a Schedule I
controlled substance since 2011. See Schedules of Controlled Substances: Temporary Placement
of Three Synthetic Cathinones Into Schedule I, 76 FR 65371-01 (temporarily scheduling
methylone as well as mephedrone and MDPV); Schedule of Controlled Substances; Placement of
Methylone Into Schedule I, 78 FR 21818-01 (finalizing rule).2
2

Manufactured in bulk without

See also Drug Enforcement Administration, Office of Diversion Control, Drug and
Chemical Evaluation Section, Background, Data and Analysis of Synthetic Cathinones:
Mephedrone (4-MMC), Methylone (MDMC) and 3,4-Methylenedioxypyrovalerone (MDPV), Aug.
2011 available at http://www.deadiversion.usdoj.gov/fed_regs/rules/2011/HHS%20PDF/
background.pdf; Dangerous Synthetic Drugs: Hearing Before the S. Caucus on Int'l Narcotics
Control, 113th Cong. 1 (2013) (statement of Joseph T. Rannazzisi, Deputy Assistant Adm'r, Office
of Diversion Control, Drug Enforcement Admin., U.S. Dep't of Justice) available at
http://www.drugcaucus.senate.gov/sites/default/files/Rannazzisi_Dangerous%20Synthetic%
20Drugs%20Testimony%20%28SDC%29.pdf.
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regulation in Asia, particularly China, methylone emerged on the U.S. illicit drug market in 2009
as an alternative to cocaine and MDMA. It quickly found a following among teenagers and
young adults at nightclubs and concerts who abused it for its stimulant and hallucinogenic effects.
Considered highly addictive, methylone users report a host of negative physical and psychological
effects ranging from nose-bleeds, teeth grinding, blurred vision, and erratic heart beat to paranoia,
agitation, and violent or unpredictable behavior. Media reports in recent years have chronicled
the increasing prevalence of methylone as well as specific instances of overdoses, emergency
room visits, hospitalizations, and severe psychotic episodes, some of which have led to violent
outbursts, self-inflicted wounds, and death.3
Although the Government cannot link such consequences to the specific kilograms of
methylone distributed by Bates, these consequences are nonetheless real and are appropriate
factors for consideration. Methylone importation and distribution is anything but a victimless
crime. Every abuser of methylone is someone’s child, brother, sister, parent, or friend. By
importing kilograms of methylone, Bates supplied a dangerous drug and intensified a growing
demand in Massachusetts and elsewhere.
Moreover, were Bates’s methylone importation not sufficiently serious in and of itself, his
attempt to smuggle alpha-PVP into the Essex County Correctional Facility exacerbates the
potential societal harm caused by Bates. Alpha-PVP is another designer drug from China that has
recently emerged in the United States. According to the National Institute of Drug Abuse, it can
“cause a condition called ‘excited delirium’ that involves hyperstimulation, paranoia and
3

See e.g., Arian Campo-Flores & Zusha Elinson, U.S. News: Club Drug Takes Deadly
Toll --- Billed as Pure Ecstasy, ’Molly’ Often Gets Laced With More-Dangerous Substances, Wall
St. J., Sept. 13, 2013; Jack Encarnacao et al., Molly potency a burning fear; Raves drawing drug
abusers, Boston Herald, Sept. 6, 2013; Evan Allen, Fighting Molly; A father relives his
daughter’s death, Jan. 26, 2015, Boston Globe.
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hallucinations that can lead to violent aggression and self-injury.”4 Deaths by suicide and by
heart attacks have been linked to abuse of the drug. Introduction of such drugs into a prison
setting, regardless of whether for personal use or for redistribution to others, increases
exponentially the risk of danger in an already volatile setting.
B.

Characteristics of the Defendant

Over the past decade, Bates has consistently engaged in criminal conduct. When shown
leniency in state court, Bates responded by persisting in new and additional forms of criminal
conduct. His criminal record appropriately reflects that he is a career offender.
Even in connection with the instant offenses, Bates’s arrest on state charges in December 7,
2013, did nothing to dissuade Bates from engaging in further illegal activities. Rather, upon
release from state custody, Bates proceeded to change his email and Skype passwords in order to
prevent law enforcement from monitoring any future communications he might have with his
Chinese suppliers. (PSR ¶ 26). A few weeks later, Bates, using a false name, retrieved another
package from China. (Id.). And, after being indicted and self-surrendering on the instant
charges, Bates attempted to smuggle drugs into the correctional facility where he was to be
detained. (PSR ¶¶ 27-30).
Nor has Bates been a model detainee while at the Essex County Correctional Facility. He
has received four disciplinary violations for refusing to follow a variety of rules, ranging from
possession of pornographic pictures to removing his booking photo from his identification bracelet
and refusing to lock-in. (PSR ¶ 5).
In mitigation, the Government recognizes that Bates’s convictions have, with one
exception, not involved violence, and that Bates has, like many defendants before him, battled
 

4

See http://www.drugabuse.gov/emerging-trends/flakka-alpha-pvp.
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drug abuse and addiction. In light of these considerations, a modest variance from the career
offender advisory GSR of 151-188 months is warranted.
Bates, however, contends that further mitigation is warranted because he claims his
criminal history overstates the seriousness of his criminal conduct. This contention is principally
based upon a claim that one of Bates’s drug offenses should not be considered because it is on the
list of cases in which Annie Dookhan was a primary or secondary chemist. This assertion is
without merit. Dookhan’s involvement does not negate the fact that defendant engaged in
criminal activities nor does it necessarily mean that his conviction will ultimately be overturned.
See, e.g., Wilkens v. United States, 754 F.3d 24, 29-31 (1st Cir. 2014); United States v. Kazana,
___ F.Supp.3d ___, 2015 WL 7853990 (D. Mass. 2015) (Saris, C.J.); United States v. Carvahlo,
___ F.Supp.3d ___, 2015 WL 3795819 (D. Mass. 2015) (Saris, C.J.); United States v. Gray, 79
F.Supp.3d 317 (D. Mass. 2015) (Saris, C.J.); United States v. Jackson, 54 F.Supp.3d 102 (D. Mass.
2014) (Saris, C.J.); see also Bridgeman v. District Attorney for Suffolk District, 471 Mass. 465,
487 (2015) (rejecting argument that convictions should be vacated for all Dookhan defendants).
At this time, the state court drug conviction remains in force and should properly be considered.5
Equally unavailing is Bates’s claim that he rendered extraordinary acceptance of
responsibility and rehabilitation. It is true that Bates twice indicated he was going to cooperate
with the Government’s ongoing criminal investigation. It is also true, however, that Bates twice
changed his mind and ultimately refused to do so. The first time, of course, was when Bates
changed the password to his email and Skype account after being released on the state charges.
(PSR ¶ 26). The second time occurred when Bates refused to enter a guilty plea pursuant to a

 

5

Indeed, it is unclear from Bates’s sentencing memorandum whether Bates is even
pursuing a state court challenge of the conviction.
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cooperation plea agreement that he had previously agreed to when represented by prior counsel.
As a result of his actions, there was no cooperation from Bates, and the Government derived no
benefit. Bates’s repeated vacillations and ultimate refusal to cooperate provide no basis for a
reduction in sentence.6
C.

Specific and General Deterrence

A significant sentence is warranted in this case both to deter Bates and others from
becoming involved in trafficking methylone. Bates knowingly, voluntarily, and repeatedly
imported kilograms of methylone for redistribution. By his actions, Bates increased the supply
and demand for methylone now being experienced in New England. He then compounded the
problem by trying to smuggle drugs into a county correctional facility. A substantial sentence is
necessary both to prevent Bates from committing any further crimes and to send a strong warning
to others who might otherwise consider trafficking in methylone or smuggling drugs into state
correctional facilities.
III.

CONCLUSION
Bates was responsible for importing multiple kilograms of methylone. He also smuggled

drugs into the Essex County Correctional Facility. The harm that Bates caused, not only to
himself, but to countless others, is immeasurable. A lengthy sentence of incarceration is
6

Bates’s suggestion that he refused to testify before the grand jury in Vermont “because
his counsel could not be present and that these charges had not been resolved,” Def. Sent. Mem.
at 5, is disingenuous at best. The contemplated testimony before the grand jury was not a
condition of the plea offer; rather, it was a condition of the cooperation that Bates would have
provided were he to have complied with the cooperation plea agreement and attempted to render
substantial assistance that might have benefited him at sentencing. As explicitly provided for in
the cooperation plea agreement, such testimony (and any information directly or indirectly
derived therefrom) would have been protected by use immunity. As the Court is well-aware,
this is standard practice in this district and numerous defendants have historically availed
themselves of the opportunity to cooperate in this manner with the attendant protections afforded
by Government’s cooperation plea agreements.
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warranted to protect society from Bates’s illegal drug trafficking, to punish Bates for his repeated
criminal conduct, and to deter others who might otherwise seek to follow in Bates’s footsteps.
Consistent with the factors to be considered for the imposition of sentence pursuant to 18
U.S.C. ' 3553(a), the United States recommends that the Court sentence the defendant to a
period of imprisonment of 120 months, supervised release for a period of four years, and a
mandatory assessment of $400.
Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney
By:

/s/ James E. Arnold
JAMES E. ARNOLD, DCBN 426040
CARLOS A. L[PEZ, NYBN 4256244
Assistant U.S. Attorneys
1 Courthouse Way, Suite 9200
Boston, MA 02210
(617) 748-3603/617-748-3242
Email: james.arnold@usdoj.gov
Email: carlos.lopez3@usdoj.gov

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically
to the registered participants as identified on the Notice of Electronic Filing (NEF).

/s/ James E. Arnold
JAMES E. ARNOLD
Assistant U.S. Attorney

Dated: December 10, 2015.

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