§245 Drug Offenses, Mandatory Minimum Sentences
6th Circuit permits judge, after conviction, to allow jury to find prior convictions under 21 U.S.C. § 851. (120)(245) In a superseding opinion, the Sixth Circuit reaffirmed that although 21 U.S.C. § 851 provides for the judge, rather than the jury, to make findings about defendant’s prior convictions, the district court may, after trial, allow the jury to determine the existence and recency of defendant’s prior convictions. The Sixth Circuit held that nothing in § 851 or the Sixth Amendment prevented the district court from submitting these questions to the jury. U.S. v. Fields, __ F.4th __ (6th Cir. Nov. 23, 2022) No. 20-5521.
6th Circuit finds Kentucky drug precursor conviction is not a “serious drug offense.” (245) In a superseding opinion, the Sixth Circuit reaffirmed that defendant’s prior conviction for possessing a methamphetamine precursor with intent to manufacture under Kentucky Rev. Stat. § 218A.1437 was not a “serious drug offense” Accordingly, it was error for the district court to rely on this prior conviction in enhancing defendant’s sentence under 21 U.S.C. § 851. The sentence was reversed. U.S. v. Fields, __ F.4th __ (6th Cir. Nov. 23, 2022) No. 20-5521.
6th Circuit finds Kentucky drug trafficking is a “serious drug offense.” (245) In a superseding opinion, the Sixth Circuit reaffirmed that defendant’s prior conviction under Kentucky Rev. Stat. § 218A.1412 for first-degree trafficking in a controlled substance was a “serious drug offense” requiring a mandatory minimum sentence under 21 U.S.C. § 851. The Kentucky offense was categorically a “serious drug offense” and defendant’s sentence was affirmed. U.S. v. Fields, __ F.4th __ (6th Cir. Nov. 23, 2022) No. 20-5521.
6th Circuit says Kentucky complicity to commit murder is a “serious violent felony.” (245) At defendant’s sentencing for drug offenses, the district court found that defendant’s prior conviction for complicity to commit murder under Kentucky Rev. Stat. § 507.020 was a “serious violent felony,” and increased defendant’s mandatory minimum sentence from 10 to 15 years under 21 U.S.C. § 841. A “serious violent felony” is an offense that has an element the use, attempted use, or threatened use of physical force against another. The Sixth Circuit found that complicity to commit murder under Kentucky law is always a “serious violent felony” because murder is always a “serious violent felony.” U.S. v. Harrison, __ F.4th __ (6th Cir. Dec. 1, 2022) No. 21-6146.
6th Circuit does not decide if requiring defendant to affirm or deny §851 priors violates Fifth Amendment. (120)(245) In a superseding opinion, the Sixth Circuit reaffirmed that defendant never asserted his right against self-incrimination before being asked to “affirm or deny” his prior convictions as required by 21 U.S.C. §851. Thus, it was unnecessary for the court to decide whether the statutory requirement violated the Fifth Amendment. U.S. v. Fields, __ F.4th __ (6th Cir. Nov. 23, 2022) No. 20-5521.
4th Circuit says prior sentence was “serious drug felony” even though it was concurrent. (245) Defendant pleaded guilty to drug trafficking, and the government notified him under 21 U.S.C. § 851 that it intended to seek a mandatory minimum sentence because of a prior “serious drug felony” for which he received a concurrent sentence of 26 months. Defendant argued that he had not served more than 12 months, as required by the statute, because his sentence was concurrent to five other counts. The Fourth Circuit rejected the argument, ruling that concurrent sentences remain separate and distinct even if they are served simultaneously. U.S. v. Skaggs, __ F.4th __ (4th Cir. Jan. 18, 2022) No. 20-4303.
1st Circuit requires mandatory minimum sentence even if defendant did not know drug quantity. (245) Defendant was sentenced to a mandatory minimum 60 months for distributing 100 grams of heroin. He argued that he lacked knowledge of the amount of drugs, noting that he was only convicted of aiding and abetting drug trafficking. The First Circuit held that an offense need only “involve” a drug amount and that a defendant need not know the drug quantity. U.S. v. Cruz-Rivera, __ F.4th __ (1st Cir. Sept. 15, 2021) No. 19-1465.
1st Circuit says failure to find § 851 prior conviction was final was not plain error. (120)(245) Defendant pleaded guilty to drug trafficking. Prior to sentencing, the government filed a 21 U.S.C. § 851 information alleging that defendant had a prior conviction. Accordingly, the district court found he was subject to a mandatory minimum sentence. For the first time on appeal, defendant argued that the district court failed to find that the prior conviction was final, as required by § 851. The First Circuit noted that defendant offered no reason to think that the sentence was not final. Therefore, the district court’s error was not “plain” and did not require reversal. U.S. v. Rabb, __ F.3d __ (1st Cir. July 16, 2021) (No. 20-1146.
7th Circuit says First Step Act reduction in §924(c) mandatory minimum applies at resentencing. (245) (330) The First Step Act of 2018 narrowed the range of offenses that trigger mandatory minimum sentences under 18 U.S.C. §924(c). Defendant was originally sentenced in 2013, but was resentenced in 2019. Before resentencing, the First Step Act changed his eligibility for a mandatory minimum sentence. The Seventh Circuit held that the First Step Act applied to defendant. U.S. v. Bethany, __ F.3d __ (7th Cir. Sept. 15, 2020) No. 19-1754.
1st Circuit finds “felony drug offense” is not vague. (135)(245) Defendant was convicted of drug trafficking. A defendant with a conviction for a “felony drug offense” is subject in some cases to a 20-year mandatory minimum. Defendant argued that the term “felony drug offense” violated the Due Process Clause because it was unconstitutionally vague. The First Circuit held that “felony drug offense” is “neither vague nor standardless” and upheld the term. U.S. v. Gonzalez, __ F.3d __ (1st Cir. Jan. 31, 2020) No. 18-1957.
1st Circuit upholds mandatory minimum despite failure to advise of right to challenge prior. (245) Under 21 U.S.C. § 851, a court cannot impose a mandatory minimum sentence on a defendant convicted of drug trafficking who has a prior conviction for a “felony drug offense” unless it asks the defendant to affirm or deny the prior conviction and informs defendant that any challenge to the prior conviction must be made before sentence is imposed. Here, the district court failed to conduct any colloquy with defendant before imposing a mandatory minimum sentence. Reviewing for plain error, the First Circuit held that defendant had not shown that the district court’s error affected his substantial rights. U.S. v. Gonzalez, __ F.3d __ (1st Cir. Jan. 31, 2020) No. 18-1957.
1st Circuit says First Step Act does not apply to sentence imposed before enactment. (245) Defendant was convicted of drug trafficking, and the district court imposed a mandatory minimum sentence of 20 years. After sentencing but before his appeal was decided, Congress passed the First Step Act, which lowered the mandatory minimum sentence for defendant’s offense from 20 years to 15 years. The First Circuit held that because the First Step Act states that it does not apply to any offense for which sentence was imposed before it was enacted, defendant was not eligible for relief. U.S. v. Gonzalez, __ F.3d __ (1st Cir. Jan. 31, 2020) No. 18-1957.
7th Circuit reverses because Indiana marijuana prior was not a “felony drug offense.” (245) Defendant was convicted of an offense involving more than 500 grams of meth and was subject to a 10-year mandatory minimum. He also had a prior conviction under Indiana Code § 35-48-4-10(a)(1) for delivering marijuana to a person under 18. The district court found this offense was a “felony drug offense” under 21 U.S.C. § 841(b)(1)(a), requiring a 20-year mandatory minimum sentence. The Seventh Circuit reversed because the Indiana statute reaches drugs that are not within the federal definition and therefore is too broad categorically to be a “felony drug offense.” U.S. v. Garcia, __ F.3d __ (7th Cir. Jan. 22, 2020) No. 18-1890.
7th Circuit says overbroad Illinois drug possession statute is not a “felony drug offense.” (245) Under 21 U.S.C. §§ 841(b)(1)(A) & 851, a defendant is subject to an increased mandatory minimum for a prior “felony drug offense.” Defendant had prior convictions under 720 Illinois Consolidated Statutes 570/402(c) (1993) for possession of a controlled substance. The Seventh Circuit held that this offense was categorically not a “felony drug offense” because it reached substances not covered by federal law. The court remanded for resentencing. U.S. v. De La Torre, __ F.3d __ (7th Cir. Oct. 10, 2019) No. 18-2009.
7th Circuit finds Indiana drug dealing statute was overbroad, so not a “felony drug offense.” (245) A defendant convicted of distributing drugs is subject under 21 U.S.C. §§ 841(b) & 851 to a mandatory minimum sentence if defendant has a prior conviction for a “felony drug offense.” Defendant was convicted of distribution of drugs and had a prior conviction under Indiana Code § 35-48-4-2 for dealing in a controlled substance. The Seventh Circuit held that the Indiana statute did not define a “felony drug offense” because it reached substances not covered by the federal statute. U.S. v. De La Torre, __ F.3d __ (7th Cir. Oct. 10, 2019) No. 18-2009.
7th Circuit says First Step Act does not apply to sentence imposed 25 days before its effective date. (240) (245) Defendant was convicted of possessing with intent to distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(b)(1)(A)(viii). Because he had two prior convictions for felony drug charges, he received life imprisonment. Twenty-five days after he was sentenced, the President signed the First Step Act, which, among other provisions, reduced the sentence for violations of § 841(b)(1)(A)(viii) to 25 years from life. Defendant argued that he should receive the benefit of the First Step Act. The Seventh Circuit held that the First Step Act is not retroactive to sentences imposed before its effective date and does not apply to defendant. U.S. v. Jackson, __ F.3d __ (7th Cir. Oct. 8, 2019) No. 18-3534.
8th Circuit says untruthfulness in giving different versions of offense precluded safety valve. (245) Defendant was arrested for drug trafficking. In a post-arrest interview, he admitted knowing how much methamphetamine he was transporting, the name of the person who had contacted him about the methamphetamine, and how he was to be paid. However, in a safety valve interview and at sentencing, defendant said he had been contacted by a different person, denied knowing how much methamphetamine he was transporting, and said he would be paid differently than in his post-arrest interview. The district court found that he had failed to provide truthful and complete information as required by 18 U.S.C. § 3553(f), and therefore denied safety-valve relief from the mandatory minimum. The Eighth Circuit agreed, finding that defendant had told materially different versions of his offense and that the district court had not committed clear error in denying safety valve credit. U.S. v. Cervantes, __ F.3d __ (8th Cir. July 3, 2019) No. 18-2218.
8th Circuit says Dean does not allow variance below mandatory minimum. (245)(330)(740) In Dean v. U.S., 137 S.Ct. 1170 (2017), the Supreme Court held that a sentencing court may consider the mandatory minimum sentence required by 18 U.S.C. § 924(c) when deciding whether to vary downward on other counts of conviction. The Eighth Circuit held that Dean did not allow a court to vary below a mandatory minimum sentence when defendant is convicted on a § 924(c) count and another count carrying a mandatory minimum. U.S. v. Guzman, __ F.3d __ (8th Cir. June 13, 2019) No. 18-1506.
6th Circuit says life sentence for drug dealer did not violate Eighth Amendment. (140)(245) In Miller v. Alabama, 567 U.S. 560 (2012), the Supreme court held that it violates the Eighth Amendment to impose a mandatory life sentence on a juvenile who commits murder. In the present case, defendant was convicted of drug trafficking in violation of 21 U.S.C. § 841, and was sentenced to a mandatory life term because he had two prior drug convictions. He argued that Miller should be extended to adult defendants who commit nonviolent offenses. The Sixth Circuit rejected the argument, holding that defendant’s mandatory life sentence did not violate the Eighth Amendment. U.S. v. Potter, __ F.3d __ (6th Cir. June 11, 2019) No. 18-5830.
7th Circuit reaffirms that Apprendi does not require prior convictions to be proved at trial. (120)(245) Defendant was found guilty of drug trafficking. He was sentenced to life in prison because the government filed an information under 21 U.S.C. § 851 alleging that he had two prior felony drug convictions. On appeal, he argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury had not found that he had two prior convictions. The Seventh Circuit reiterated that Apprendi does not require prior convictions to be alleged and proved at trial beyond a reasonable doubt. U.S. v. Pierson, __ F.3d __ (7th Cir. May 31, 2019) No. 18-1112.
7th Circuit holds First Step Act inapplicable to sentence imposed before its enactment. (145)(245) The First Step Act, enacted on December 21, 2018, changed the mandatory life term required under 21 U.S.C. § 841(b)(1)(A)(viii) to a mandatory 25-year sentence. The Act states that it does not apply to any sentence “imposed” after it was enacted. Defendant received a life sentence under § 841(b)(1)(A)(viii) before the First Step Act was enacted but while his appeal was pending. The Seventh Circuit held that a sentence was “imposed” at the time the district court pronounced it, not when it became final after appeal. U.S. v. Pierson, __ F.3d __ (7th Cir. May 31, 2019) No. 18-1112.
9th Circuit says California possession of drugs by inmate is not a “felony drug offense.” (245) If the defendant is convicted of a drug-trafficking offense under 21 U.S.C. § 841 and the government files an information under 21 U.S.C. § 851 alleging a prior conviction for a “felony drug offense,” the district court must impose a mandatory minimum sentence. Here, the government filed an information stating that defendant had a prior conviction for possessing controlled substances as an inmate, in violation of California Penal Code § 4573.6. The district court found that this was a “felony drug offense” and imposed a mandatory minimum sentence. On appeal, the Ninth Circuit reversed, holding that § 4573.6 was overbroad because it criminalizes controlled substances that are not regulated under federal law and that the statute was not divisible. U.S. v. Graves, __ F.3d __ (9th Cir. May 30, 2019) No. 16-50276.
8th Circuit affirms §851 increase for prior conviction despite failure to follow procedure. (245) If the defendant is convicted of a drug-trafficking offense and the government files an information under 21 U.S.C. § 851 alleging that defendant has a prior qualifying conviction, the district court must ask defendant whether he affirms or denies the prior conviction and inform defendant that any challenge to the prior conviction must be made before sentencing. However, in this case, the district court failed to conduct the proper inquiry before it imposed the mandatory minimum sentence. Reviewing for plain error, the Eighth Circuit found no effect on defendants’ substantial rights because defendants did not show a reasonable probability that their sentences would be different if the district court had followed the proper procedure. U.S. v. House, __ F.3d __ (8th Cir. May 7, 2019) No. 17-2341.
4th Circuit reverses where court sentenced below statutory mandatory minimum. (245)(715) At defendant’s sentencing for drug-trafficking offenses, the district court departed downward under § 5K2.23 below the applicable 10-year statutory mandatory minimum to account for a state sentence that defendant had served for conduct related to his federal offenses. On the government’s appeal, the Fourth Circuit held that the guidelines do not authorize a departure from a statutorily imposed mandatory minimum. For that reason, the court held that the district court had no authority to depart below the mandatory minimum. U.S. v. Moore, __ F.3d __ (4th Cir. Mar14, 2019) No. 18-4481.
7th Circuit finds reclassifying felony as misdemeanor does not affect mandatory minimum. (245) Defendant pleaded guilty to drug-trafficking offenses. Defendant had a prior drug-trafficking felony in California, and, accordingly, the government filed an information under 21 U.S.C. § 851 contending that she was subject to a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B). After her guilty plea but before sentencing, defendant had the prior California felony reclassified as a misdemeanor pursuant to California Proposition 47, codified at Penal Code § 1170.18. Nevertheless, the district court sentenced defendant to the 10-year mandatory minimum. On appeal, the Seventh Circuit affirmed, finding that that a person who commits a federal drug offense after being convicted of a state felony drug offense is subject to § 841’s recidivist enhancement even if that prior offense is reclassified as a misdemeanor pursuant to Proposition 47. The court rejected defendant’s claims under the Due Process and Equal Protection Clauses. U.S. v. Sanders, __ F.3d __ (7th Cir. Dec. 3, 2018) No. 18-2165.
5th Circuit finds defendant could reasonably foresee larger cocaine conspiracy. (245)(250) Coconspirator Reyes regularly drove from New York to Dallas to pick up cocaine from a distributor who admitted distributing 450 kilos of cocaine. Defendant accompanied Reyes on one trip in which they paid for two kilos and defendant negotiated for a third kilo to be “fronted” (obtained on credit). Defendant and Reyes were arrested, and the three kilos of cocaine were found in a compartment that could hold much larger quantities. At trial, the jury found that defendant should have reasonably foreseen that the conspiracy involved more than five kilos of cocaine. This triggered a mandatory minimum sentence of ten years under 21 U.S.C. § 841(b)(1)(A)(ii). On appeal, the Fifth Circuit found the evidence sufficient, observing that defendant traveled with a regular purchaser, the transaction involved a large quantity, some of which was “fronted” to defendant, and the compartment could hold much larger quantities. U.S. v. Gonzalez, __ F.3d __ (5th Cir. Oct. 31, 2018) No. 17-40895.
7th Circuit upholds mandatory life sentence against due process challenge. (135)(245) Defendant received a mandatory life sentence for drug trafficking. On appeal, he claimed that the sentence violated due process. The Seventh Circuit found that this argument was “merely an expression of his discontent with his mandatory life sentence” and that no due process violation occurred. U.S. v. Lopez, __ F.3d __ (7th Cir. Oct. 24, 2018) No. 17-1391.
7th Circuit finds Texas deferred adjudication was a prior conviction for mandatory minimum. (245)(251) Defendant was convicted of an offense involving at least 50 grams of methamphetamine. The government filed an information under 21 U.S.C. § 851 for an enhanced sentence based on defendant’s two prior felony drug convictions, and the district court imposed a mandatory life sentence. On appeal, defendant argued that his prior conviction in Texas should not count as a prior felony drug conviction because the state court granted him a deferred adjudication and he was discharged from probation. Citing previous decisions, the Seventh Circuit held that, for purposes of § 851, a deferred adjudication in Texas constitutes a prior conviction. U.S. v. Lopez, __ F.3d __ (7th Cir. Oct. 24, 2018) No. 17-1391.
7th Circuit says failure to ask defendant to affirm or deny prior conviction was harmless error. (245) The government sought an mandatory minimum sentence under 21 U.S.C. § 851 based on the defendant’s two prior felony drug convictions. The statute requires the court to inquire of the defendant whether he affirms or denies that he has previously been convicted of prior drug offenses. In this case, the district court failed to make the inquiry. The Seventh Circuit found that this was error, but the error was harmless because defendant never disputed his prior conviction. Nevertheless, the court of appeals emphasized the importance of following § 851’s mandatory procedures. U.S. v. Lopez, __ F.3d __ (7th Cir. Oct. 24, 2018) No. 17-1391.
11th Circuit upholds preponderance standard at sentencing. (245)(251) Defendant was convicted of conspiracy to distribute 500 grams or more of methamphetamine, and the government filed an information under 21 U.S.C. § 851 seeking a mandatory minimum sentence based on defendant’s prior felony drug conviction. Section 851 requires the prior conviction to be proved beyond a reasonable doubt. At defendant’s sentencing, the district court used a preponderance standard. Reviewing for plain error, the Eleventh Circuit found no effect on defendant’s substantial rights because there was sufficient evidence for the court to find beyond a reasonable doubt that defendant had been convicted of possession of cocaine. The outcome would not have been different if the court had applied the correct standard. U.S. v. Hernandez, __ F.3d __ (11th Cir. Oct. 26, 2018) No. 17-15666.
5th Circuit remands to allow resentencing in light of Dean and mandatory minimum. (245)(740) Defendant was convicted of drug trafficking and firearms charges, and was sentenced to 652 months. He argued that the district court erroneously believed that it could not consider the counts carrying mandatory minimum sentences – a total of 40 years – in arriving at his aggregate sentence. In Dean v. U.S., 137 S. Ct. 1170 (2017), decided two months before sentencing, the Supreme Court abrogated several circuits’ precedents that had barred courts from considering a defendant’s § 924(c) mandatory-minimum sentence when deciding what sentence to impose on the other counts. The Fifth Circuit never announced a contrary position. However, because the judge found the guidelines calculation “excessive,” but nonetheless imposed a guideline sentence, it appeared unlikely that the judge considered Dean. The Fifth Circuit remanded for the limited purpose of determining whether the district court wished to resentence defendant in light of Dean. U.S. v. Gomez, __ F.3d __ (5th Cir. Sept. 26, 2018) No. 17-10690.
4th Circuit reaffirms that fact of prior conviction can be decided by sentencing judge. (120)(245)(520) Defendant was convicted of drug charges. Based on his prior convictions, the district court sentenced defendant to a mandatory minimum sentence of 480 months. He argued that the statutory mandatory minimum sentences could not be applied to him because the fact of his prior convictions had neither been charged in the indictment nor found by the jury beyond a reasonable doubt. The Fourth Circuit found this argument was foreclosed by Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which held that a judge may find the fact of a defendant’s prior convictions, even when this increases the statutory maximum or minimum penalty. Defendant argued that Almendarez-Torres was “flatly inconsistent” with Alleyne v. U.S., which held “that facts that increase mandatory minimum sentences must be submitted to the jury.” 570 U.S. 99 (2013). However, Alleyne expressly exempted “the fact of a prior conviction” from its holding, leaving intact the “narrow exception” recognized in Almendarez-Torres. U.S. v. Bell, __ F.3d __ (4th Cir. Aug. 28, 2018) No. 16-4343.
5th Circuit holds § 851 information need not be refiled after superseding indictment. (245) In February 2014, the government charged defendant in an initial indictment with cocaine conspiracy charges, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count One). On April 10, 2014, the government filed a Notice of Enhanced Penalty pursuant to 21 U.S.C. § 851, notifying defendant of its intention to enhance his sentence to mandatory life imprisonment based on two prior drug convictions. Six days later, the Government filed a superseding indictment, charging defendant with the same count and adding two additional charges. In March 2015, the government filed a Second Superseding Indictment, adding another charge. A jury convicted defendant on Count One and several other charges, and the district court sentenced him to life in prison on Count One. Defendant appealed the mandatory life sentence, arguing that the government should have refiled a new § 851 information on the Second Superseding indictment. The Fifth Circuit disagreed, holding that one § 851(a) information suffices for a trial on a superseding indictment. A change in counsel, without more, did not render the government’s § 851(a) information ineffective. U.S. v. Rodriguez, 894 F.3d 228 (5th Cir. 2018).
5th Circuit finds convictions for conduct five months apart were separate under § 841. (245) Defendant argued that the district court erred by treating his prior drug convictions as separate convictions for purposes of an increased sentence under 21 U.S.C. § 841(b)(1)(A). On June 17, 2004, defendant was arrested for possessing 39.8 kilograms of marijuana in his vehicle while attempting to enter the United States. Five months later, while on bond for that offense, he was arrested for offering $20,000 to a confidential source to transport a load of marijuana to San Antonio and $5,000 to continue the transport to Dallas. The Fifth Circuit held that defendant’s two prior convictions did not constitute a “single act of criminality” because defendant committed these offenses “sequentially, not simultaneously.” U.S. v. Rodriguez, 894 F.3d 228 (5th Cir. 2018).
Commission says § 851 mandatory minimums disproportionately affects black offenders. (245) On July 12, 2018, the U.S. Sentencing Commission issued a report examining the use and impact of 21 U.S.C. § 851, an enhancement for drug offenders who have a prior felony drug conviction. The Commission found that section 851 enhancements are rare and inconsistently applied, with wide geographical variations among districts. The Commission also found that the enhancements had a disproportionate effect on racial groups, with black offenders comprising an increasingly larger proportion of offenders as they progressed through each of the key stages of the 851 process. U.S. Sentencing Commission, Application & Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders (July, 2018).
D.C. Circuit says mandatory minimum required jury finding of drug quantity for each defendant. (245) (275) Defendants were convicted of heroin conspiracy charges. They argued that the district court improperly sentenced them to the mandatory minimum for a conspiracy to distribute 100 grams or more of heroin, because the jury did not make individualized findings as to the amount of heroin attributable to each of them. The circuits are split on this question. Here, the D.C. Circuit, joined the First, Fourth, Fifth, and Ninth Circuits, in requiring individualized findings. To be sentenced to a mandatory minimum triggered by a certain quantity of drugs, a jury must find the drug quantity attributable to each defendant on an individualized basis. U.S. v. Stoddard, __ F.3d __ (D.C. Cir. June 15, 2018) No. 15-3060.
6th Circuit finds it unnecessary to decide whether jury must decide individual’s scope of conspiracy. (120)(245)(275) The jury found that defendant’s conspiracy involved 500 grams or more of cocaine and 280 grams or more of cocaine base. Citing U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998), defendant argued that it was improper to sentence him to a mandatory life sentence under 21 U.S.C. §841(b)(1)(A) without a jury finding as to the drugs attributable to his individual participation. The Sixth Circuit rejected this argument in U.S. v. Robinson, 547 F.3d 632 (6th Cir. 2008), but the government argued that Robinson was inconsistent with U.S. v. Swiney, 203 F.3d 397 (6th Cir. 2000), because Swiney held that the drug quantity must be individualized. The Sixth Circuit found no need to decide this issue, because the quantity of cocaine and crack cocaine attributable to defendant was sufficient to support his mandatory life sentence. U.S. v. Young, 847 F.3d 328 (6th Cir. 2017).
7th Circuit says mandatory minimum sentence did not violate separation of powers. (120)(245) Defendant pled guilty to drug conspiracy charges and was sentenced to 151 months. He argued on appeal that the mandatory minimum sentence in 21 U.S.C. §841(b)(1)(A)(ii) violated the separation-of-powers doctrine, by granting prosecutors sole discretion to decide whether to pursue charges that carry mandatory minimum sentences, thus stripping the judicial branch of sentencing discretion. The Seventh Circuit disagreed, noting that it had rejected a similar argument in U.S. v. Nigg, 667 F.3d 929 (7th Cir. 2012). The panel also noted that the district court went above the mandatory minimum sentence of ten years, exercising its discretion to sentence defendant to 12 years and seven months. U.S. v. Syms, 846 F.3d 230 (7th Cir. 2017).
9th Circuit rejects 6th Amendment challenge to enhanced mandatory minimum drug sentence. (120) (245) If the government files an information alleging the defendant’s prior drug convictions under 21 U.S.C. §851, the defendant is subject to an enhanced mandatory minimum sentence. Defendant argued that §851 violated his Sixth Amendment right to a jury trial. The Ninth Circuit found that the fact of a prior conviction is not an element that must be proved to a jury beyond a reasonable doubt. U.S. v. Rodriguez, __ F.3d __ (9th Cir. Mar. 14, 2017) No. 15-50096.
6th Circuit upholds mandatory life sentences as not cruel and unusual. (140)(245) Defendants were each convicted of cocaine and cocaine base charges. They argued that their life sentences were cruel and unusual, but the Sixth Circuit disagreed. The Supreme Court has rejected the claim that the Eighth Amendment requires strict proportionality; it prohibits only “extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957 (1991). Harmelin upheld a mandatory life sentence for possession of more than 650 grams. The sentences here were not so grossly disproportionate as to violate the Eighth Amendment. U.S. v. Young, 847 F.3d 328 (6th Cir. 2017).
9th Circuit reverses for failure to comply with requirements for proving priors under §851. (245) Under 21 U.S.C. §851, a defendant is subject to an enhanced mandatory minimum if the government files an information and proves that the defendant has prior drug convictions. In support of its §851 information here, the government submitted certified copies of defendant’s prior convictions. However, defendant argued that he was not the person named in the certified copies. After questioning defense counsel, the district court found that defendant was the person named in the documents. The Ninth Circuit reversed, holding that under §851(b), the defendant himself must “affirm or deny” the validity of the documents. Because the district court did not comply with §851(b), and the error was not harmless, defendant’s sentence was vacated. U.S. v. Rodriguez, __ F.3d __ (9th Cir. Mar. 14, 2017) No. 15-50096.
7th Circuit remands determine if distribution of fentanyl was “but for” cause of death. (245)(880) Defendant was convicted of distributing fentanyl, and received a mandatory minimum 20-year sentence based the district court’s finding that “death resulted” from her distribution of drugs. See 18 U.S.C. §841(b)(1)(C). However, the district court expressed discomfort with the sentence and its lack of discretion. After her first appeal, the Supreme Court decided Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), which held that facts that increase a mandatory minimum sentence must be submitted to the jury and proved beyond a reasonable doubt. In addition, the Supreme Court held that a defendant cannot be liable under the penalty enhancement provision for distribution of a drug with “death resulting”, unless the use of the drug was a but-for cause of death. Burrage v. U.S., __ U.S. __, 134 S. Ct. 881 (2014). Defendant then filed a petition under 28 U.S.C. §2255. The Seventh Circuit held that Burrage should be applied retroactively, and remanded for de novo sentencing. Given the district court’s language, the panel could not say with any certainty that the court made a finding the fentanyl was a “but for” cause of death. The district court appeared to only require the government to prove that the victim’s death “resulted” from defendant’s actions. Krieger v. U.S., 842 F.3d 490 (7th Cir. 2016).
1st Circuit upholds 10-year mandatory minimum for manufacturing marijuana. (145)(245)(253) Defendant was convicted of manufacturing over 100 marijuana plants. The district court sentenced him under 21 U.S.C. §841(b)(1)(B)(vii) to the mandatory minimum sentence of 120 months applicable to defendants with a prior felony drug conviction. Defendant argued that the ten-year mandatory-minimum sentence violated the Eighth Amendment. He pointed to the public’s evolving views on marijuana, including state-law decriminalization and legalization measures. He also cited the federal government’s general policy of not prosecuting cultivation and distribution activities that were in compliance with “strong and effective [state marijuana] regulatory and enforcement systems.” The First Circuit held that the 120-month mandatory minimum sentence did not violate the Eighth Amendment. Despite the evolving consensus on marijuana policy, manufacturing marijuana remained a serious crime under federal law. Defendant’s arguments were more appropriately directed at Executive and Legislative branches. U.S. v. Ford, 839 F.3d 94 (1st Cir. 2016).
7th Circuit holds special verdict form did not contain drug quantity finding. (240)(245) The sentencing court found by a preponderance that 3 to 10 kilograms of heroin were involved in defendants’ drug crime. Defendants argued that the jury found less than one kilogram. The Seventh Circuit disagreed. The jury checked off the box labeled “at least 100 grams of mixtures containing heroin but less than 1000 grams.” However, the instruction that preceded the drug quantity amounts was inconsistent. The most logical interpretation was that the jury was being asked to select the heroin quantity that the government had proven beyond a reasonable doubt. Thus the jury merely found that the government had failed to prove beyond a reasonable doubt that more than 1,000 grams of heroin were involved. Because the form was not a factual finding that less than 1,000 grams were involved, the sentencing court was permitted to find a higher drug quantity by a preponderance of the evidence. U.S. v. Saunders, __ F.3d __ (7th Cir. June 10, 2016) No. 13-3863.
9th Circuit reverses where court used drug quantify greater than found by jury. (245)(251) At defendant’s trial for possession of methamphetamine with intent to distribute, the jury found by special verdict that defendant’s offense involved less than 50 grams. At sentencing, the district court found that defendant’s offense involved more than 50 grams. The court then sentenced defendant to 240 months, the maximum sentence for a defendant convicted of a meth offense involving less than 50 grams. The Ninth Circuit held that the district court was not entitled to make a drug quantity finding in excess of that found by the jury, even though that finding did not increase defendant’s maximum sentence. U.S. v. Pimentel-Lopez, __ F.3d __ (9th Cir. July 15, 2016) No. 14-10210.
7th Circuit says prior convictions need not be submitted to, or found by jury. (120)(245)(504) Defendant was convicted of distributing of 1,000 grams or more of heroin, with a mandatory minimum sentence of ten years under 21 U.S.C. §841(a)(1). After trial, the district court found that defendant had two prior felony drug convictions, which increased his mandatory minimum sentence to life. Defendant argued that he was entitled to have the jury decide whether he had two prior drug convictions. The Seventh Circuit disagreed, even though the Sixth Amendment, generally requires submitting to the jury any fact that increases the mandatory minimum sentence. U.S. v. Alleyne, __ U.S. __, 133 S. Ct. 2151 (2013). However, in Almendarez–Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that enhancements based on prior convictions are not subject to the Sixth Amendment requirement for a jury determination. U.S. v. Lomax, __ F.3d __ (7th Cir. Mar. 8, 2016) No. 14-2811.
9th Circuit finds insufficient evidence of mandatory minimum quantity of meth. (245)(251) Defendant told a confidential informant that he could produce a pound of methamphetamine. The transaction fell through, but defendant was charged with possession of more than 50 grams of methamphetamine with intent to distribute. The government did not seize any drugs, but at trial an FBI agent testified that only four of the 30 controlled purchases that it had made between 2008 and 2014 involved meth below 90% in purity. The Ninth Circuit found the evidence insufficient to show that defendant possessed any particular amount of meth, so he was not subject to the mandatory minimum sentence for 50 grams or more of methamphetamine. U.S. v. Lemus, __ F.3d __ (9th Cir. Mar. 2, 2016) No. 14-50355.
8th Circuit says any error was harmless because it did not impact mandatory minimum. (245)(461) Defendant was convicted of drug charges. Her guideline range was 151-188 months, but the court varied downward and sentenced her to the mandatory minimum sentence of 120 months. She argued on appeal that the district court improperly imposed a two-level obstruction of justice enhancement under §3C1.1. The Eighth Circuit found that because the application of the enhancement did not impact the mandatory minimum, and defendant did not qualify for safety valve relief, any error was harmless. U.S. v. Morales, __ F.3d __ (8th Cir. Feb. 10, 2016) No. 15-1630.
4th Circuit finds no jurisdiction to review stipulated sentence not “based on” guidelines. (245)(760) Defendant pled guilty to drug charges. She was sentenced to 120 months pursuant to a stipulated plea agreement under Fed. R. Crim. P. 11(c)(1)(C). Defendant argued on appeal that the sentence was not reasonable. The Fourth Circuit held that it lacked jurisdiction to review defendant’s sentence because a Rule 11(c)(1)(C) plea agreement may only be reviewed if it is unlawful or expressly based on the guidelines. The 120-month sentence here was exactly what defendant stipulated to. It was not imposed as a result of an incorrect application of the guidelines, because it was based on the parties’ agreement, not on the court’s calculation of the guidelines. Nowhere in the agreement was there a guideline-based calculation of an imprisonment term. U.S. v. Williams, __ F.3d __ (4th Cir. Jan. 28, 2016) No. 14-4680.
8th Circuit says Alleyne did not apply retroactively on collateral review. (120)(245)(880) Defendant pled guilty to drug charges, and was sentenced to a mandatory minimum ten years. At the time of sentencing, judges were permitted to find, by a preponderance of the evidence, any fact that increased the mandatory minimum sentence. See Harris v. U.S., 536 U.S. 545 (2002). After defendant’s appeal became final, Harris was overruled by Alleyne v. U.S., 570 U.S. __, 133 S. Ct. 2151 (2013), which held that any fact that increases the mandatory minimum sentence must be submitted to a jury and found beyond a reasonable doubt. In a § 2255 petition, defendant argued that she was entitled to re-sentencing under Alleyne because (1) it was plain error to apply the preponderance standard; (2) Alleyne should apply retroactively; and (3) she was entitled to effective assistance of certiorari counsel. The Eighth Circuit rejected all of these arguments. First, the plain error standard is intended for use on direct appeal, not on collateral attack. Second, every other circuit to consider this issue has concluded that Alleyne did not apply retroactively on collateral review. Alleyne did not announce a watershed rule of criminal procedure that “’alter[ed] our understanding of the bedrock procedural elements’ of the adjudicatory process.” Finally, states are not obligated to provide counsel for certiorari petitioners. Ross v. Moffitt, 417 U.S. 600 (1974). Walker v. U.S., __ F.3d __ (8th Cir. Jan. 14, 2016) No. 14-3700.
9th Circuit reverses where evidence was insufficient to support mandatory minimum. (245) At defendant’s trial for conspiracy to distribute more than one kilogram of heroin, the jury found by special verdict that defendant possessed at least one kilogram of heroin. That quantity triggers a mandatory 20-year minimum sentence. After analyzing the evidence at trial and defendant’s pattern of drug transactions, the Ninth Circuit found that the evidence did not support the jury’s finding that the offense involved one kilogram. U.S. v. Navarrette-Aguilar, __ F.3d __ (9th Cir. Dec. 28, 2015) No. 14-30056.
1st Circuit finds Alleyne error harmless, given “overwhelming” evidence of drug quantity. (120)(245) Defendant was indicted on charges stemming from two sales of crack cocaine. The indictment did not specify the precise drug amounts involved, stating only that each count “involved five grams or more of a mixture and substance” containing cocaine base. Prior to sentencing, defendant challenged the applicability of the statutory mandatory minimum, arguing that attributing 28 grams or more of crack cocaine to him would entail the use of a fact not charged in the indictment. This argument was foreclosed by Harris v. U.S., 536 U.S. 545 (2002), which held that a fact not charged in an indictment could trigger a mandatory minimum sentence. While this case was pending on appeal, the Supreme Court overruled Harris in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013). The First Circuit found “no question” that an Alleyne error occurred, since the drug quantity was not specified in the indictment. However, the error was harmless. See U.S. v. Harakaly, 734 F.3d 88 (1st Cir. 2013). There was “overwhelming evidence of the requisite drug types and quantities.” The evidence that the offense involved 28 grams or more of crack was uncontested. At the change-of-plea hearing, defendant admitted that he had engaged in the charged transactions, and the second sale alone involved 42.5 grams. U.S. v. McIvery, __ F.3d __ (1st Cir. Nov. 20, 2015) No. 12-1257.
5th Circuit reverses for failure to attribute drug quantity to defendants as individuals. (245)(275) Defendants were convicted of conspiracy to possess with intent to distribute heroin. The jury found that the conspiracy involved one kilogram or more of heroin, and the district court concluded that this finding triggered the statutory minimum of 20 years’ imprisonment for two of the defendants. They challenged the district court’s use of a conspiracy-wide drug-quantity jury finding instead of an individual-specific drug-quantity jury finding. The Fifth Circuit agreed that defendants should have been sentenced based on the drug quantity attributable to them as individuals, not the quantity attributable to the entire conspiracy. For purposes of statutory minimum sentences, the court must find the quantity attributable to the individual defendant. Accordingly, the panel vacated the sentences and remanded for resentencing. U.S. v. Haines, __ F.3d __ (5th Cir. Oct. 15, 2015) No. 13-31287.
1st Circuit finds no Alleyne violation where court based sentences on guidelines, not mandatory minimums. (120)(245) The district court found defendants responsible for drug quantities that subjected them to 20-year mandatory minimums, although neither the court nor the parties mentioned that mandatory minimum at sentencing. The guidelines called for a sentence of 360 months to life, but the district court sentenced both defendants to 300 months. Defendants argued for the first time on appeal that because the court, rather than the jury, made drug-quantity findings that subjected them to mandatory minimums, their sentences violated Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013). The First Circuit found no Alleyne error, because the court based its sentence exclusively on the guidelines, rather than the mandatory minimums. In discussing its drug-quantity findings, the court framed the question as one that solely affected the guidelines inquiry. Neither defendant could show the necessary prejudice to sustain their claim. U.S. v. Rose, __ F.3d __ (1st Cir. Sept. 18, 2015) No. 13-2460.
3rd Circuit finds ineffective assistance for improper advice about safety valve. (245)(246)(880) Defendant pled guilty to distributing or manufacturing drugs near a school, in violation of 21 U.S.C. § 860(a). He later claimed that he pled guilty because counsel advised him that he was eligible for a reduced sentence pursuant to the “safety valve.” In a pro se habeas petition, defendant argued that his counsel’s erroneous advice about the safety valve constituted ineffective assistance. The Third Circuit agreed. The record clearly indicated that defendant’s counsel provided him with incorrect advice regarding the availability of the safety valve sentencing reduction in 18 U.S.C. § 3553(f). In fact, counsel filed a motion for a reduction, but at sentencing, counsel withdrew this motion, because U.S. v. McQuilkin, 78 F.3d 105 (3d Cir.1996) held that § 3553(f) did not apply to convictions under 21 U.S.C. § 860. Counsel’s lack of familiarity with an 18-year-old precedent and his erroneous advice, demonstrated performance below prevailing professional norms. The plea colloquy did not remedy counsel’s mistake, since the judge made several statements that reinforced counsel’s incorrect advice. Defendant also showed that but for counsel’s error, he would not have pled guilty and insisted on going to trial. U.S. v. Bui, __ F.3d __ (3d Cir. Aug. 4, 2015) No. 11-3795.
9th Circuit holds government need not prove type and quantity of drug to trigger mandatory minimum. (120)(245) Defendant pleaded guilty to importing 4.65 kilograms of methamphetamine into the U.S., an offense that carries a 10-year mandatory minimum. At sentencing, he argued that under recent Supreme Court decisions, the government had to prove that he knew the exact drug type and quantity he was transporting for the 10-year mandatory minimum to apply. The district court rejected this argument, and the Ninth Circuit affirmed. The court held that the Supreme Court’s decisions in Alleyne v. U.S., 133 S. Ct. 2151 (2013), and Flores-Figueroa v. U.S., 556 U.S. 646 (2009), did not alter the long-standing rule that the government is not required to prove that the defendant illegally imported a specific controlled substance or quantity into the U.S. U.S. v. Jefferson, __ F.3d __ (9th Cir. June 26, 2015) No. 13-50647.
9th Circuit holds government need not prove type and quantity of drug to trigger mandatory minimum. (120)(245) Defendant pleaded guilty to importing 4.65 kilograms of methamphetamine into the U.S., an offense that carries a 10-year mandatory minimum. At sentencing, he argued that under recent Supreme Court decisions, the government had to prove that he knew the exact drug type and quantity he was transporting for the 10-year mandatory minimum to apply. The district court rejected this argument, and the Ninth Circuit affirmed. The court held that the Supreme Court’s decisions in Alleyne v. U.S., 133 S. Ct. 2151 (2013), and Flores-Figueroa v. U.S., 556 U.S. 646 (2009), did not alter the long-standing rule that the government is not required to prove that the defendant illegally imported a specific controlled substance or quantity into the U.S. U.S. v. Jefferson, __ F.3d __ (9th Cir. June 26, 2015) No. 13-50647.
7th Circuit holds that government proved defendant was convicted of prior drug felony for §841(b)(1)(B) purposes. (245) Defendant was convicted of drug charges. At sentencing, the district court found that defendant had a prior felony drug conviction, triggering a mandatory minimum sentence under 21 U.S.C. §841(b)(1)(B). The Seventh Circuit held that the government proved that defendant was convicted of the prior drug felony. The government presented three pieces of evidence: (1) a certified copy of a court record from Marion County, Indiana, showing that a person with defendant’s name was convicted of cocaine possession in 2007; (2) a computer printout from Marion County’s records system listing the same case number, along with defendant’s name, and a social security number and birth date matching those given in defendant’s PSR; and (3) a police report related to the state conviction showing the charge, defendant’s name, and the birth date listed in the court’s record system. Defendant had the PSR listing his social security number in advance of sentencing and never objected to it as incorrect. There was no need for the government to produce photographs or fingerprints related to the seven-year-old conviction, especially since defendant proffered nothing to refute the government’s evidence. U.S. v. Miller, __ F.3d __ (7th Cir. Mar. 31, 2015) No. 14-1237.
7th Circuit affirms despite errors in §851 notices of drug priors. (245) Defendant contended that the government violated his due process rights by failing to provide proper notice of the prior convictions it relied upon to seek an enhanced sentence under 21 U.S.C. §851. In an April 3, 2012, information, the government listed four prior convictions, and amended the information on April 12, 2013, to list five prior convictions. The Seventh Circuit held that the addition of the fifth prior conviction did not violate due process, because the government did not rely on this fifth conviction for the enhancement. Moreover, clerical errors in the notices did not violate due process. The clerical errors in the description of a 2008 conviction were corrected by the amended information, which was filed before sentencing. Both informations contained errors describing his 2000 conviction. However, the only error in the amended information regarding the 2000 conviction was the date of that conviction, and the correct date was in the original information. Second, defendant stipulated at trial to both of these prior convictions. Third, the government offered at sentencing, without objection, the records supporting these two prior convictions. U.S. v. Turner, __ F.3d __ (7th Cir. Mar. 18, 2015) No. 13-2566.
7th Circuit says mandatory life sentence made judicial drug quantity finding unnecessary. (245)(275) Defendant was convicted of drug conspiracy charges. He argued that the district court erred in failing to make an individualized assessment of the drug quantity attributable to him. However, defendant faced a mandatory minimum life sentence based on the jury verdict that defendant conspired to possess five kilograms of cocaine with intent to distribute, see 21 U.S.C. §841(b)(1)(A)(ii), and the government gave notice of its intent to seek an enhanced penalty based on defendant’s two prior convictions, pursuant to 21 U.S.C. §851. The district court found that defendant had two prior qualifying convictions and properly imposed a sentence of life imprisonment. Thus, the Seventh Circuit ruled that any error in calculating the quantity of drugs attributable to defendant was harmless because the district court had no
Supreme Court says that to “result from” use of heroin, death must be “but for” result. (245) Under 21 U.S.C. § 841(b), a defendant is subject to a 20-year mandatory minimum sentence if the defendant distributes certain dangerous and addictive controlled substances and “death or serious bodily injury results from the use of such substance.” Defendant sold heroin to a person who died that night. At defendant’s trial for distributing heroin, two medical experts testified that heroin was a contributing factor in the victim’s death. Based on this testimony, the district court imposed the 20-year mandatory minimum, and the Eighth Circuit affirmed. The Supreme Court, in a decision written by Justice Scalia, held that the distributed controlled substance must be a ”but for” cause of the person’s death for the death to “result from” the use of the substance within the meaning of the statute. Justice Ginsburg, joined by Justice Sotomayor, concurred in the result. Burrage v. U.S., 571 U.S. __, 134 S.Ct. 881 (2014).
Supreme Court makes clear that sentencing enhancement is an element. (245) The Controlled Substances Act, 21 U.S.C. § 841(b), states that a defendant who distributes certain dangerous and addictive controlled substances must receive a 20-year mandatory minimum sentence if “death or serious bodily injury results from the use of such substance.” In a decision written by Justice Scalia, the Supreme Court held that because the “death results” enhancement increased the minimum and maximum sentences to which a defendant was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt. Justice Ginsburg, joined by Justice Sotomayor, concurred in the result. Burrage v. U.S., 571 U.S. __, 134 S.Ct. 881 (2014).
Supreme Court applies Apprendi to mandatory minimum sentences. (245) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that any fact that increases the defendant’s sentence must be alleged in the indictment and proved beyond a reasonable doubt. Subsequently, in Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013), the Court held that Apprendi did not apply to facts that require imposition of a mandatory minimum sentence. Here, defendant was convicted of using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c), which carries a sentence of five years to life. At sentencing, the district court enhanced defendant’s sentence under § 924(c) because defendant had “brandished” the firearm. The Supreme Court, in a decision written by Justice Thomas, overruled Harris and held that “brandishing” the firearm is an element of the offense defined by § 924(c) and that a defendant’s sentence under that statute may be enhanced because he brandished a firearm only if that fact is alleged in the indictment and submitted to the jury. Justice Sotomayor, and two justices, concurred; Justice Breyer concurred in part and concurred in the judgment; Chief Justice Roberts dissented in an opinion joined by two justices; and Justice Alito dissented. Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013).
Supreme Court to decide if case upholding mandatory minimum sentences should be overturned. (245) In Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013), the Supreme Court held that the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000)—that facts that increase a defendant’s sentence must be alleged in the indictment and proved to the jury—does not preclude a judge from finding facts to impose a mandatory minimum sentence. On October 5, 2012, the Supreme Court granted certiorari to determine whether Harris should be overruled. Like Harris, the case granted by the Court involved a finding that defendant brandished a firearm and therefore was subject to an increased sentence under 18 U.S.C. § 924(c). Alleyne v. U.S., __ U.S. __, 133 S.Ct. 420 (2012) (granting certiorari).
Supreme Court says § 924(c) requires mandatory sentence even if other count carries higher mandatory sentence. (245) Under 18 U.S.C. § 924(c)(1), a defendant who uses or carries a firearm during and in relation to a drug trafficking offense or crime of violence, or possesses a firearm in furtherance of such an offense is subject to a mandatory minimum sentence “except to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law.” Defendants who were subject to mandatory minimum sentences for other offenses argued that the “except” clause exempted them from the mandatory minimum sentence required by § 924(c). In a unanimous decision authored by Justice Ginsburg, the Supreme Court rejected that contention and held that a defendant is subject to a mandatory, consecutive sentence under § 924(c) and is not spared from that sentence by virtue of receiving a higher mandatory sentence on a different count of conviction. Abbott v. U.S., __ U.S. __, 131 S.Ct. 18 (2010).
Supreme Court says “felony drug offense” includes state misdemeanor that would be a federal felony. (245) Under 21 U.S.C. § 841, a defendant convicted of a drug-trafficking offense is subject to an enhanced mandatory minimum sentence if he has a prior conviction for a “felony drug offense.” The term “felony drug offense” is defined to mean an offense involving specified drugs that is punishable by more than one year under any law of the United States or any state. Defendant, convicted under § 841, had a prior conviction under state law for possession of cocaine that carried a maximum sentence of two years but was classified as a misdemeanor under state law. The Supreme Court, in an opinion by Justice Ginsburg, held that a state drug offense punishable by more than one year qualifies as a “felony drug offense” even if the state classifies the offense as a misdemeanor. Burgess v. U.S., 553 U.S. 124, 128 S.Ct. 1572 (2008).
Supreme Court to decide if prior state misdemeanor can be a “felony drug offense” triggering mandatory minimum. (245) Under 21 U.S.C. § 841(b)(1), a defendant convicted of certain drug-trafficking offenses who has a prior state or federal conviction for a “felony drug offense” is subject to a mandatory minimum sentence. The Supreme Court granted certiorari to decide whether § 841(b)(1) applies when the defendant’s prior offense is for a crime that is treated as a misdemeanor under state law but is punishable by more than a year in prison. Burgess v. U.S., __U.S. __, 128 S.Ct. 740 (2007) (granting certiorari).
Supreme Court holds that Apprendi does not apply to mandatory minimum sentences. (245) A divided Supreme Court held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires that any fact (other than the fact of a prior conviction) that increases the statutory maximum sentence for an offense be submitted to a jury and proved beyond a reasonable doubt, does not apply to facts that trigger mandatory minimum sentences. Thus, the Court held, the government need not allege and prove beyond a reasonable doubt the fact that a defendant charged with using or carrying a firearm during and in relation to a drug trafficking offense, “brandished” the firearm in order to receive the mandatory minimum seven-year sentence triggered by that finding. Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013).
Supreme Court says any fact that increases the sentence beyond the statutory maximum must be submitted to the jury. (245) In a 5-4 opinion written by Justice Stevens, the Supreme Court held that the Constitution requires that, except for the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The court said it did not matter whether the additional fact was labeled an element of the offense or a mere “sentencing factor.” Applying this rule to the facts of the case, the court reversed the defendant’s New Jersey sentence, which had been increased based on a judge’s finding at sentencing by a preponderance of evidence that the crime was racially motivated. Justice O’Connor dissented, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer. Justice Breyer also filed a separate dissenting opinion joined by the Chief Justice. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).
Supreme Court holds that 5K1.1 substantial assistance motion does not allow departure below statutory minimum. (245) In a 7-2 opinion written by Justice Thomas, the Supreme Court held that a separate motion under 18 U.S.C. § 3553(e) is required to depart below a statutory mandatory minimum sentence. The majority ruled that nothing in § 3553(e) allows the Sentencing Commission to provide for a “unitary” substantial assistance motion, nor did the Commission attempt to exercise that authority in adopting guideline § 5K1.1. The Supreme Court thus agreed with the Third and Eighth Circuits, and overruled contrary cases in the Second, Fifth, Seventh and Ninth Circuits. Justices Souter and Stevens concurred separately, and Justices Breyer and O’Connor dissented. Melendez v. U.S., 518 U.S. 120, 116 S.Ct. 2057 (1996).
Supreme Court holds LSD statute includes weight of blotter paper even though LSD guideline does not. (245) The Supreme Court in Chapman v. U.S., 500 U.S. 453 (1991), ruled that 21 U.S.C. §841(b) requires the court to include the weight of the carrier medium, typically blotter paper, in determining the weight of the LSD for mandatory minimum sentencing purposes. Thereafter, effective November 1, 1993, the Sentencing Commission revised the method of calculating the weight of LSD in the Sentencing Guidelines, instructing courts to give each dose of LSD on a carrier medium a constructive or presumed weight of 0.4 milligrams. This Amendment 488 was made retroactive by Amendment 502. In the present case, defendant argued that the presumptive weight in the sentencing guidelines should also be used to calculate the weight for mandatory minimum sentencing purposes under the statute, 841(b). The Ninth Circuit adopted this position in U.S. v. Muschik, 49 F.3d 512, 518 (9th Cir. 1995), cert. pending, 95-156, but every other circuit has rejected the argument. In a unanimous opinion written by Justice Kennedy, the Supreme Court agreed with the majority of the circuits and rejected the Ninth Circuit’s view. The court concluded that the Commission’s choice of an alternative methodology for weighing LSD “does not alter our interpretation of the statute in Chapman.” Thus, in sentencing under § 841(b)(1), the court must use the actual weight of the blotter paper with its absorbed LSD. Neal v. U.S., 516 U.S. 284, 116 S.Ct. 763 (1996).
Supreme Court says trading firearm for drugs constitutes “use” of firearm. (245) Under 18 U.S.C. section 924(c)(1), a defendant who uses a firearm during a drug trafficking crime must be sentenced to five years imprisonment. Where as here, the firearm is a “machine gun” or is fitted with a silencer, the mandatory sentence is 30 years. In this case, the defendant offered to trade his MAC-10 machine gun for two ounces of cocaine. In a 6-3 opinion written by Justice O’Connor, the Supreme Court held that defendant’s offer to trade the gun for drugs constituted “use” within the meaning of section 924(c). The court thus overruled U.S. v. Phelps, 877 F.2d 28 (9th Cir. 1989), which had held that using a gun as an item of barter did not constitute “use.” Justices Scalia, Stevens and Souter dissented. Smith v. U.S., 508 U.S. 223, 113 S.Ct. 2050 (1993).
Supreme Court includes weight of blotter paper in determining the sentence for LSD. (245) In a 7-2 opinion written by Chief Justice Rehnquist, the Supreme Court held that 21 U.S.C. § 841(b)(1)(B) which calls for a five year mandatory minimum sentence for distributing more than 1 gram of “a mixture or substance detaining a detectable amount” of LSD, requires that the weight of the carrier medium — in this case blotter paper — be included when determining the appropriate sentence. The court ruled that since the word “mixture” has no established common law meaning, it must be given its ordinary meaning. “The LSD crystals left behind when the solvent evaporates are inside of the paper, so they are comingled with it.” The court also rejected the defendant’s arguments that this interpretation violated due process or was unconstitutionally vague. Justices Stevens and Marshall dissented. Chapman v. U.S., 500 U.S. 453, 111 S.Ct. 1919 (1991).
Supreme Court holds that states may provide mandatory five-year minimum sentence for “visible possession of a firearm.” (245) Pennsylvania statute requires a mandatory five-year minimum sentence if a judge finds by a preponderance of evidence at sentencing that defendant “visibly possessed a firearm.” Since the statute only raises the minimum sentence and neither alters the maximum sentence nor creates a separate offense, it is constitutional. The preponderance standard satisfies due process and there is no right to a jury trial at sentencing, even where the sentence turns on specific findings of fact. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411 (1986).
1st Circuit bars empaneling sentencing jury on remand to remedy Alleyne error. (245) Under Alleyne v. U.S., 133 S.Ct. 2151 (2013), if the distribution of drugs is proven beyond a reasonable doubt to a jury to have resulted in a death, a defendant will face a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b). However, if the government does not meet that burden before conviction, a defendant will face a different mandatory minimum – either 10 years, 5 years, or no minimum, depending on drug type and quantity. When, as here, there is Alleyne error resulting in a mandatory minimum sentence based on judicial findings on a lesser standard of proof, the circuit courts usually have remanded for resentencing. Here, the prosecutor asked the court to permit the prosecution on remand to empanel a sentencing jury to allow the government to prove beyond a reasonable doubt that a death resulted from the defendant’s drug dealing. The First Circuit held that the government’s proposed course of action was foreclosed on the facts of the case, was unfair, and would raise troubling double jeopardy questions that could be avoided by denying the request. U.S. v. Pena, 742 F.3d 508 (1st Cir. 2014).
1st Circuit holds that offenses involving different co-conspirators, different locales and different drugs were separate. (245) Defendant pled guilty to drug conspiracy charges. Because of two prior drug felonies, he received an automatic life sentence for the drug-conspiracy conviction under 21 U.S.C. § 841(b)(1)(A). He argued that the two priors were not separate criminal episodes, as required by § 841(b)(1)(A). The plea agreement for the first offense stated that from 1994 to 1996, and October 1997, defendant supplied heroin for a drug point located at the Portugués and Belgica Wards in Ponce, owned by co-defendant Rodriguez. The plea agreement for the second offense stated that in 1996 and October 1997, defendant was one of the suppliers of heroin, cocaine and marihuana to co-defendants Orengo, Leon and Diaz, who would later provide those drugs to Santiago for further distribution at a drug point in the Rosaly Residential in Ponce, Puerto Rico. The First Circuit upheld the district court’s finding that the two were separate criminal incidents. Although they overlapped a bit in time, the second offense involved different co-conspirators, a different locale, and a different mix of drugs than the first. U.S. v. Acosta-Colon, 741 F.3d 179 (1st Cir. 2013).
1st Circuit says Alleyne error—failure to allege facts to support mandatory minimum—was harmless (245) After finding that defendant was responsible for a drug quantity that triggered a ten-year mandatory minimum sentence, the district court sentenced him to ten years’ imprisonment. The First Circuit found that the court erred under the Supreme Court’s recent decision in Alleyne v. U.S., 133 S.Ct. 2151 (2013). Alleyne overruled Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013), and held that facts that increase a defendant’s mandatory minimum are elements of the crime rather than sentencing factors. Here, because the drug quantity that triggered the mandatory minimum sentence was not alleged in the indictment or stipulated by defendant at the time of his guilty plea, the district court’s drug-quantity finding constituted Alleyne error. However, the error was harmless, in light of overwhelming and uncontested evidence that defendant was responsible for more than 50 grams of methamphetamine. A drug delivery that the police intercepted, taken alone, was nearly four times the triggering amount. Defendant admitted that he had provided the shipment. U.S. v. Harakaly, 734 F.3d 88 (1st Cir. 2013).
1st Circuit says judicial fact-finding to preclude safety valve relief did not violate Alleyne. (245) Defendant argued that the district court committed error under Alleyne v. U.S., 133 S.Ct. 2151 (2013), by finding by a preponderance of the evidence that he occupied a managerial role in the conspiracy. This finding made him ineligible for safety-valve relief from the mandatory minimum sentence. Alleyne, by its terms, applies to facts that “increase[] the mandatory minimum.” Defendant argued that Alleyne applies to any fact that “mandate[s] a greater punishment than a court would otherwise have had discretion to impose.” The First Circuit refused to read Alleyne so expansively, holding that judicial fact-finding that precludes safety-valve relief is permissible because it does not increase that baseline minimum sentence. A fact that precludes safety-valve relief does not trigger or increase the mandatory minimum, but instead prohibits imposition of a sentence below a mandatory minimum already imposed as a result of the guilty plea or jury verdict. U.S. v. Harakaly, 734 F.3d 88 (1st Cir. 2013).
1st Circuit holds that § 851 information filed minutes before opening statement was timely. (245) Defendant was convicted of drug charges and was sentenced to mandatory life in prison under § 841(b)(1)(A), because he had prior state drug possession convictions. It is a condition of such a mandatory sentence that “before trial, or before entry of a plea of guilty,” the U.S. Attorney file with the court and serve on the defendant an information identifying the prior convictions. § 851(a)(1). Here, the § 851 information was filed only minutes before the opening statements. Nonetheless, the First Circuit found the information timely. A week earlier, defendant explicitly waived any objection to the timing of a § 851 information, provided such notice was filed by April 11. Because April 11 was a Sunday, the judge extended the time for filing until 8:30 a.m. on April 12, and defendant did not contest the government’s assertion that it was filed at 8:17 a.m. in the morning on April 12. U.S. v. Jones, 674 F.3d 88 (1st Cir. 2012).
1st Circuit holds that attempted possession of controlled substance was “felony drug offense.” (245) A jury convicted defendant of drug charges. The district court found that he was subject to a mandatory minimum life sentence based in part on its finding that “attempt” offenses are felony drug offenses under 21 U.S.C. § 841(b)(1). The First Circuit agreed that attempted possession of controlled substances is a “felony drug offense” under the sentencing enhancement provisions of 21 U.S.C. § 841(b)(1). A “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct related to narcotic drugs.” The classification that Congress built into the Controlled Substances Act sweeps broadly. To “relate” means to show or establish a logical or casual connection. An attempt to possess a controlled substance is, by definition, connected logically and causally to narcotic drugs. Case law supports this interpretation. Courts interpreting the Armed Career Criminal Act, 18 U.S.C. § 924(e), have held that attempted possession with intent to distribute qualifies as a “serious drug offense,” notwithstanding its inchoate character. In addition, the Sentencing Commission includes inchoate offenses in its definition of a “controlled substance offense.” U.S. v. Brown, 500 F.3d 48 (1st Cir. 2007).
1st Circuit says conviction based on transaction involved in overarching conspiracy was “prior felony drug conviction.” (245) Defendant was involved in a cocaine conspiracy that operated in Massachusetts between June 2001 and June 2003. The district court found that that defendant’s 2001 Massachusetts conviction for possession of marijuana and cocaine with intent to distribute was a “prior felony drug conviction” triggering the sentencing enhancement in § 841 (b)(1)(B). Defendant argued that where, as here, the prior felony drug conviction is based on one of the transactions that comprised the overarching conspiracy, there is no basis for an enhancement because the prior conviction was not a “distinct criminal episode.” Following U.S. v. De Jesus Mateo, 373 F.3d 70 (1st Cir. 2004), the First Circuit disagreed. A prior drug conviction constitutes a “distinct criminal episode” sufficient to trigger the enhancement so long as the defendant continued to participate in drug activity after the conviction became final. Defendant pled guilty to drug distribution in Massachusetts state court in October 2001, but continued the engage in the drug conspiracy until his arrest in 2003. The district court correctly applied circuit precedent. U.S. v. Lino, 493 F.3d 41 (1st Cir. 2007).
1st Circuit holds that drug quantity in mandatory minimum statute is sentencing factor to be determined by preponderance of the evidence. (245) Under 21 U.S.C. § 841(a)(1), defendants with a prior felony conviction convicted of an offense involving 500 grams or more of cocaine are subject to a mandatory minimum sentence of 10 years. The sentencing court found that a fact that triggers a mandatory minimum sentence must proved beyond a reasonable doubt. Thus, the court found the mandatory minimum inapplicable because the government did not prove drug quantity beyond a reasonable doubt. The First Circuit reversed, holding that drug quantity in the mandatory minimum statute is a sentencing factor that can be determined by a preponderance of the evidence. The recent cases of Blakely v. Washington, 543 U.S.296 (2004), and U.S. v. Booker, 543 U.S. 220 (2005), did not overrule the Supreme Court’s earlier opinions in McMillan v. Pennsylvania, 477 U.S. 79 (1986) (sentencing factors may be proven by a preponderance of the evidence) and Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013) (Apprendi does not apply to facts that increase the mandatory minimum sentences). The panel reaffirmed its opinion in U.S. v. Goodine, 326 F.3d 26 (1st Cir. 2003), which held that drug quantity under § 841 is a sentencing factor that may be determined by a preponderance of the evidence. U.S. v. Malouf, 466 F.3d 21 (1st Cir. 2006).
1st Circuit holds that Booker did not entitle defendant to resentencing so that he could comply with safety valve. (245) Defendant sought resentencing on the ground that the Sixth Amendment required the facts determining compliance with the safety valve to be found by a jury rather than by a judge. Because he did not understand that requirement when he decided not to participate in the safety valve regimen, defendant argued that he would have made a different decision if he had known that his entitlement to a sentence reduction would have to be found by a jury by a reasonable doubt. The First Circuit rejected this claim. A change in the law does not warrant vacating a sentence so that the defendant may reconsider his initial decision not to pursue a safety valve reduction, just as a change in the law does not warrant vacating a guilty plea so that the defendant may choose to face trial instead. Defendant was not entitled to resentencing under Booker, because he did not preserve his Booker claim and failed to demonstrate a reasonable probability of a lower sentence under an advisory guideline regime. U.S. v. De Los Santos, 420 F.3d 10 (1st Cir. 2005).
1st Circuit holds that sentencing manipulation did not require sentence below statutory minimum. (245) The district court found that the government had engaged in sentencing factor manipulation by ordering the informant to purchase crack cocaine (rather than powder) with the intent of securing a higher sentence. However, the court concluded that, in light of defendant’s predisposition to sell crack, the government’s conduct was not “extreme and outrageous” enough to warrant a sentence below the mandatory minimum. The First Circuit held that the district court did not clearly err, declining to adopt a per se rule that sentencing manipulation requires a sentence below the statutory minimum. After finding the government’s conduct was “wrong and troubling” and that it would take the conduct “into account,” the district court properly inquired further to determine if the government’s misconduct was sufficiently egregious to warrant a sentence below the statutory minimum. Based on what it found to be “very strong evidence” that defendant was ready, willing, and able to accommodate the informant’s need to purchase crack upon request, the court found that the government, while motivated in part by an improper desire to increase defendant’s sentence, did not exert undue pressure or coercion on defendant to get him to sell crack. U.S. v. Fontes, 415 F.3d 174 (1st Cir. 2005).
1st Circuit says court was required to make specific drug quantity finding in order to trigger mandatory minimum. (245) Defendant argued that the district court erred in imposing a ten-year mandatory minimum sentence under 21 U.S.C. § 841(B)(1)(a) without making a specific finding that he, rather than the charged conspiracy, was accountable for a particular quantity of drugs. The First Circuit agreed. Where a defendant admits that the conspiracy to which he belonged handled drug quantities sufficient to trigger a mandatory minimum sentence, he becomes potentially eligible for the mandatory minimum, but that provision cannot be applied to him without an individualized finding that the triggering amount was attributable to, or foreseeable by, him. Given the lack of individualized findings of drug quantity, the court vacated defendant’s sentence and remanded for resentencing. U.S. v. Colon-Solis, 354 F.3d 101 (1st Cir. 2004).
1st Circuit says drug convictions from transactions months apart were “distinct criminal episodes.” (245) The district court found that defendant had two prior felony drug convictions and thus was subject to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A). Prior felony drugs convictions are counted separately for purposes of § 841(b) only when they represent distinct criminal episodes. Defendant argued the convictions represented a single episode of ongoing criminal conduct. The convictions stemmed from several transactions, occurring over several months and involving different drugs. The First Circuit found no error in treating these convictions as distinct. Drug trafficking may involve “many criminal episodes, each a discrete occurrence. The fact that all are related, part of a series, or part of a continuous course of criminal dealing, does not necessarily render them a “single” criminal episode, particularly where the episodes occur over time. To so hold would insulate them very career criminals the statute is designed to reach – those continuously engaged in criminal conduct.” U.S. v. Maxey, 989 F.2d 303 (9th Cir. 1993). U.S. v. Martinez-Medina, 279 F.3d 105 (1st Cir. 2002).
1st Circuit rules promise not to file § 851 information did not bar government from seeking career offender sentence. (245) Defendant argued that the government breached his plea agreement by promising not to file an information pursuant to 21 U.S.C. § 851, but then arguing that defendant’s prior criminal history should be used to increase his sentence under USSG § 4B1.1, the career offender guideline. The First Circuit found no breach. The plea agreement did not contain a promise to abstain from seeking a § 4B1.1 enhancement. Defendant’s claim that the government’s promise not to file a § 851 information implicitly included a promise not to seek a § 4B1.1 enhancement muddled the distinction between § 851 and § 4B1.1. The government did not make an “end-run” around its promise not to file a § 851 information. If it had filed such an information, defendant’s maximum prison term under 21 U.S.C. § 841 would have risen from 20 to 30 years. Based on this enhanced statutory maximum, defendant’s sentencing range would have risen from 151-188 months to 188-235 months. U.S. v. Frisby, 258 F.3d 46 (1st Cir. 2001).
1st Circuit holds that theoretical exposure to higher statutory maximum did not violate Apprendi. (245) Because defendant’s 121-month sentence was below the 20-year statutory maximum for trafficking in an unspecified quantity of cocaine base, see 21 U.S.C. § 841(b)(1)(C), the sentence did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant nonetheless argued that her sentence violated Apprendi because the court’s overall drug quantity calculation (35.33 grams of cocaine base) theoretically exposed her to a 40-year sentence under § 841(b)(1)(B). The First Circuit held that a defendant’s theoretical exposure to a higher statutory maximum does not violate Apprendi, provided the actual sentence imposed does not exceed the original statutory maximum. Defendant lacked standing to argue that Apprendi applied where a mandatory minimum sentence is imposed. Defendant’s sentence was not premised on the mandatory minimum in § 841(b)(1)(B), but rather on the applicable sentencing guidelines. Moreover, this would be a losing argument, since McMillan v. Pennsylvania, 477 U.S. 79 (1986) clearly allows a fact that triggers a mandatory minimum sentence to be found by a judge using the preponderance standard. U.S. v. Robinson, 241 F.3d 115 (1st Cir. 2001).
1st Circuit refuses to extend Apprendi to mandatory minimums. (245) Defendant received a 160-month sentence for his cocaine conspiracy conviction. He sought to have his sentence vacated because the amount of cocaine attributed to him was never submitted to the jury and proved beyond a reasonable doubt. See Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Because his sentence was less than the 20-year statutory maximum for an offense involving an unspecified quantity of cocaine, see 21 U.S.C. § 841(b)(1)(C), the First Circuit found no Apprendi violation. Defendant’s reliance on U.S. v. Norby, 225 F.3d 1053 (9th Cir. 2000) was misplaced. Norby was convicted of a marijuana offense carrying only a five-year statutory maximum in § 841(b)(1)(D). The correct statutory maximum for a Schedule II substance like cocaine is 20 years under § 841(b)(1)(C). The panel refused to extend Apprendi to include mandatory minimums. The majority in Apprendi declined to overrule their previous decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986), which authorizes the legislatures to increase minimum penalties based upon non-jury factual determinations, as long as the penalty imposed does not exceed the maximum range. U.S. v. Houle, 237 F.3d 71 (1st Cir. 2001).
1st Circuit upholds refusal to permit plea withdrawal. (245) Defendant argued that his plea was involuntary because he did not understand the consequences of pleading guilty. He claimed that the district court misled him by telling him that he could face an enhanced sentence if the substance he possessed was found to be cocaine base, when in fact an increased sentence required an additional finding that the substance was crack, and hence an additional evidentiary burden for the government. The First Circuit found that this argument misunderstood the nature of defendant’s sentence. Defendant did not receive an increased guidelines sentence based on a finding that the substance was crack. Instead, he received a ten-year statutory minimum sentence for distributing more than 50 grams of cocaine base under 21 U.S.C. § 841(b). While the guidelines definition of “cocaine base” means only crack, see Note (D) to USSG § 2D1.1, the term “cocaine base” as used in § 841(b) includes all forms of cocaine base, including but not limited to crack. See U.S. v. Lopez-Gil, 965 F.2d 1124 (1st Cir. 1992). Thus, defendant’s sentence did not require a finding that the cocaine base was in crack form. Defendant’s proffered reason for seeking withdrawal stemmed more from garden-variety second thoughts and unhappiness with the court’s finding that the substance was over 50 grams of cocaine base, than from any lack of understanding at the time of the plea. U.S. v. Richardson, 225 F.3d 46 (1st Cir. 2000).
1st Circuit holds that court’s understatement of mandatory minimum was not harmless error. (245) The district court advised defendant that he faced a mandatory minimum sentence of five years. However, because the court found defendant responsible for an increased drug quantity, his mandatory minimum sentence was actually ten years. The First Circuit held that the district court’s understatement of the mandatory minimum sentence violated Rule 11(c)(1). Where drug quantity attribution is not determined until after a defendant’s guilty plea, the court is in “a tricky position” when it comes to accurately advising a defendant of the applicable mandatory minimum and maximum penalties. “This lack of certainty, however, does not relieve the court of its Rule 11(c)(1) responsibility” to correctly inform a defendant of those mandatory minimum and maximum penalties. The panel suggested that the court might advise a defendant as to the different mandatory minimum and maximums that could apply, depending on the quantity of drugs later attributed to the defendant. The Rule 11 violation was not harmless error. Both the prosecution and the plea agreement stated that defendant’s probable guideline range was 87 to 108 months, which actually was barred by a ten-year minimum. Defendant received no hint that a higher mandatory minimum might apply. It was sufficiently likely that defendant misjudged the consequences of his plea so that he should be permitted to withdraw his plea. U.S. v. Santo, 225 F.3d 92 (1st Cir. 2000).
1st Circuit says confession did not satisfy information requirement of safety valve provision. (245) The district court denied defendant safety valve relief under § 5C1.2 because defendant did not “make a clean breast of things to the government before sentencing.” Defendant argued that he made a confession at the sentencing hearing and that he had no further information to provide. The First Circuit disagreed. Regardless of whether defendant made a full confession before the district court, it was undisputed that he did not provide the government with information regarding his offense. Defendant and his partner had previously been involved in drug distribution and had a customer base large enough to handle five kilograms of cocaine per week. Thus, defendant was not a passive participant, or a minor player “who might not know more than [his] designated role suggests.” The safety valve is unavailable to those who have access to information and do not provide it. U.S. v. Woods, 210 F.3d 70 (1st Cir. 2000).
1st Circuit holds that failure to object to untimely § 851 notice was ineffective assistance. (245) Although the government did not file a § 851(a)(1) information until 19 days after the jury was empanelled, defense counsel did not challenge the timeliness of the notice at sentencing or on direct appeal. In a pro se petition under 28 U.S.C. § 2255, defendant challenged his enhanced sentence. The First Circuit held that defendant showed both “cause” excusing his procedural default and “actual prejudice” resulting from the unpreserved error. Ineffective assistance of counsel constitutes “cause” sufficient to excuse a procedural default. Section 851(a)(1) clearly states that notice must be filed “before trial.” At the time defendant’s case went forward, it was well-settled that “trial,” as used in § 851(a)(1), includes jury selection. Defense counsel was constitutionally deficient for failing to object to the untimely filing. There was absolutely no reason not to object to the late filing. Defendant clearly was “prejudiced” by the error. Had counsel objected to the defect in the § 851(a) information, the court would not have been able to impose a 10-year mandatory minimum sentence. Prou v. U.S., 199 F.3d 37 (1st Cir. 1999).
1st Circuit holds that timeliness of § 851 notice is waivable issue of statutory authorization. (245) Although the government did not file a § 851(a)(1) information until 19 days after the jury was empanelled, defense counsel did not challenge the timeliness of the notice at sentencing or on direct appeal. Defendant, argued, in a pro se petition under 28 U.S.C. § 2255, that the absence of a timely § 851(a)(1) information deprived the sentencing court of jurisdiction to impose the enhanced sentence. The government argued that the timeliness of a § 851(a) notice was not a non-waivable issue of subject matter jurisdiction, but a waivable issue of statutory authorization. Under the latter category, such a claim would require a showing of “cause” and “actual prejudice” if not raised earlier. The First Circuit held the timeliness of a § 851(a)(1) is not a jurisdictional matter, but a question of statutory authorization. Noncompliance with the procedures in § 851(a)(1) deprives a sentencing court of authority to impose an enhanced sentence, but does not divest the court of jurisdiction over the subject matter. Thus, a defendant’s failure to object at sentencing or on appeal to the untimeliness of the § 851(a)(1) information constitutes a procedural default, leaving the issue open to collateral attack only if the defendant can show cause and prejudice. Prou v. U.S., 199 F.3d 37 (1st Cir. 1999).
1st Circuit holds that failure to advise of mandatory minimum was harmless error. (245) Defendant pled guilty to possessing with intent to distribute 50 or more grams of crack. During the plea colloquy, the district court failed to mention, in violation of Rule 11, that the offense carried a mandatory minimum 10-year sentence. The district judge determined that defendant had a guideline range of 135-168 months, and imposed a 135-month sentence. The First Circuit held that the failure to advise defendant of the mandatory minimum ten-year sentence was harmless error since it did not impair defendant’s substantial rights. Since the court imposed a sentence 15 months longer than the mandatory minimum, the minimum sentence had no relevance to, and no actual effect upon, defendant’s sentence. U.S. v. McDonald, 121 F.3d 7 (1st Cir. 1997).
1st Circuit rules debriefing desirable but not necessary for safety valve protection. (245) Defendant claimed he provided sufficient information for safety valve protection under 18 U.S.C. § 3553(f) and guideline § 5C1.2 by giving the government an eight‑page letter with information about the crimes charged. The government argued that the letter was insufficient and that safety valve protection requires a debriefing. The First Circuit held that although a debriefing might be desirable, it is not necessary. A defendant must persuade the district court that he has truthfully provided the required information and evidence to the government. A defendant who contents himself with a letter runs the risk that the government will point out omissions at sentencing. Nonetheless, the possibility remains that he could make a full disclosure without a debriefing. Here, defendant failed to provide full disclosure. The letter was drawn almost verbatim from an affidavit filed by a federal agent early in the case, and did not identify defendant’s drug suppliers. U.S. v. Montanez, 82 F.3d 520 (1st Cir. 1996).
1st Circuit affirms despite failure to advise defendant of mandatory minimum. (245) Defendant’s plea agreement stated that his offense carried a mandatory minimum five year term of imprisonment and minimum four year term of supervised release. In an extensive Spanish-language questionnaire defendant completed before his plea hearing, he correctly stated the mandatory minimums. During the plea hearing, however, the court neglected to advise defendant about these mandatory minimums. The First Circuit refused to vacate defendant’s sentence despite the court’s failure to comply with Rule 11. It was unlikely that counsel, after advising defendant to enter the plea agreement and assisting him in completing the court’s questionnaire, told him, contrary to both documents, that the court could impose something less than the mandatory minimums. Defendant’s attempt to set aside the plea was belated, and denied the government an opportunity to make a record as to whether or not defendant was misinformed by counsel about the sentencing consequences of his plea. U.S. v. Lopez-Peneda, 55 F.3d 693 (1st Cir. 1995).
1st Circuit says court may consider related mandatory minimum in departing downward. (245) Defendant had a guideline range of 63-78 months on drug counts, plus a mandatory consecutive 60-month sentence for use of a firearm under 18 U.S.C. § 924(c). The government moved for a § 5K1.1 departure, but did not ask for departure from the mandatory minimum under 18 U.S.C. § 3553(e). Defendant asked the court to consider the fact that he faced a statutory consecutive 60-month sentence, in deciding how much to depart from the guidelines. The district court refused, saying this would defeat the purpose of the statutory 60-month consecutive sentence in 924(c). On appeal, the First Circuit concluded that in departing from the guidelines, a district court may consider the pertinence, if any, of a related mandatory consecutive sentence. However, there was no reason to remand because it was unlikely the district court would have sentenced any differently. The court assumed, without deciding, that the government’s failure to ask for a departure from the statutory minimum prevented the district court from departing below sixty months. U.S. v. Webster, 54 F.3d 1 (1st Cir. 1995).
1st Circuit says LSD amendment does not govern statutory minimum penalties. (245) When defendant was originally sentenced on LSD charges, the district court included the weight of the paper carrier medium used in distributing the LSD. After defendant was sentenced, the Sentencing Commission amended § 2D1.1(c) to provide a less stringent formula for calculating LSD quantity. The district court reduced defendant’s original sentence, but did not reduce it below the minimum five year sentence mandated by 21 U.S.C. § 841(b)(1)(B)(v). The 1st Circuit rejected defendant’s argument that Congress intended that LSD weight be calculated according to the guidelines method. Moreover, the Sentencing Commission’s policy statement accompanying the amendment states that the new guideline approach does not override the statutory mandatory minimum. U.S. v. Dimeo, 28 F.3d 240 (1st Cir. 1994).
1st Circuit applies mandatory minimum despite inability to produce negotiated amount. (245) The government argued that defendant was responsible under § 2D1.1 for three kilograms of cocaine he negotiated to supply in July. Under note 12, the district court found defendant was not reasonably capable of producing the three kilograms. However, it found that the object of conspiracy was to distribute six kilograms of cocaine, including the three kilograms defendant agreed to supply in July. Thus, the court imposed the mandatory minimum 10-year sentence under 21 U.S.C. § 841(b)(1)(A)(ii) for conspiring to possess and distribute five or more kilograms of cocaine. The 1st Circuit held that defendant’s inability to produce the negotiated quantity did not bar imposition of the mandatory minimum sentence. Although defendant was not reasonably capable of producing the additional three kilograms, he was a member of a conspiracy whose object was to distribute more than six kilograms, and he specifically intended to further the conspiratorial objective. U.S. v. Pion, 25 F.3d 18 (1st Cir 1994).
1st Circuit refuses to review minor participant claim that would not affect mandatory minimum sentence. (245) Defendant argued that she should have received a reduction for role in the offense under section 3B1.2. The 1st Circuit refused to consider the claim, since even if the reduction were granted, it would have no effect on her sentence due to the “overriding force” of the mandatory minimum sentence required by 21 U.S.C. section 841(b)(1)(B). U.S. v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993).
1st Circuit agrees that defendant knew suitcase contained three kilograms of heroin. (245) The 1st Circuit found the evidence supported the district court’s finding that defendant knew that a suitcase he picked up contained three kilograms of heroin. The complex nature of the crime, the elaborate delivery precautions, the fact that the person from whom defendant picked up the suitcase told defendant that the suitcase contained “a lot” of heroin, the fact that heroin leaked out of the suitcase and was contained in a shower cap, and defendant’s having lifted the suitcase and shaken it, all supported the conclusion that defendant knew the transaction actually involved more than one kilogram. U.S. v. Beasley, 12 F.3d 280 (1st Cir. 1993).
1st Circuit upholds mandatory minimum sentence against constitutional challenge. (245) The 1st Circuit rejected defendant’s contention that the five year mandatory sentencing provision of 18 U.S.C. section 924(c)(1) was unconstitutional because it fails to provide for individualized sentencing and precludes discretion on the part of the trial judge. There is no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses. The court also rejected defendant’s claim that the mandatory sentencing scheme deprived him of effective assistance of counsel by depriving him of the opportunity to present evidence at sentencing. U.S. v. Campusano, 947 F.2d 1 (1st Cir. 1991).
1st Circuit reverses sentence below statutory minimum. (245) Defendant was convicted of 11 drug charges carrying a mandatory minimum prison term of five years. Her guideline range was 63 to 78 months, but the district court departed below both the guideline range and the minimum sentence and sentenced defendant to 57 months. The 1st Circuit reversed and remanded for resentencing. Guideline § 5G1.1(c)(2) provides that the guidelines do not supercede a minimum sentence mandated by statute. The 57-month sentence violated this guideline and 21 U.S.C. § 841(b)(1)(B)(ii), which set the mandatory minimum sentence. U.S. v. Rodriguez, 938 F.2d 319 (1st Cir. 1991).
1st Circuit affirms mandatory minimum sentence against due process challenge. (245) The 1st Circuit rejected defendant’s contention that the penalty provisions of 21 U.S.C. § 841(b)(1)(B) violated due process because the statute ambiguously mandates imprisonment, fine or “both.” First, despite the ambiguous language in the statute, the circuits are unanimous in holding that legislative intent requires a prison sentence for an offender who possesses a certain amount of a controlled substance. Second, no specific quantity of a controlled drug is required to convict under § 841. Only in sentencing does quantity become a factor. Hence, § 841 does not violate the constitutional rights of an innocent person. Finally, under the sentencing guidelines, defendant already faced a prison sentence, so defendant was given due process notice before he received a prison term. U.S. v. McMahon, 935 F.2d 397 (1st Cir. 1991).
1st Circuit finds that 21 U.S.C. § 841(b)(1)(B) does not violate due process. (245) Defendant contended that 21 U.S.C. § 841(b)(1)(B) did not give due process notice of the criminal penalties for violating § 841(a)(1), since it imposed two “inconsistent penalty schemes, one allowing the court to impose merely a fine and the other requiring the imposition of a five-year minimum term of imprisonment.” The 1st Circuit agreed that the provision was ambiguous, but that it did not violate due process. Under the most lenient reading, the district court had the option of the imposition of a suspended sentence or probation with a fine. In this case, the sentencing guidelines prescribed a 97 month minimum term of imprisonment, and the district court expressly refused to depart downward. Thus, “the district court implicitly determined that a sentence of imprisonment, rather than a fine or probation, was required in any event.” Therefore, defendant was not harmed by the claimed notice deficiency. U.S. v. Castiello, 915 F.2d 1 (1st Cir. 1990).
2nd Circuit reverses miscalculation of minimum sentence as plain error. (245) Defendant pleaded guilty to heroin conspiracy charges, in violation of 21 U.S.C. §§841(a)(1) & (b)(1)(A). Based on a prior Connecticut drug conviction, the government filed a §851 informa¬tion alleging that defendant was subject to enhanced mandatory minimum of 20 years’ imprisonment and 10 years’ supervised release. Defendant argued for the first time on appeal that the district court’s imposition of a prior-conviction enhancement was improper. The govern¬ment conceded that it was a clear error to treat defen¬dant’s Connecticut drug conviction as a prior felony drug conviction. The Second Circuit held that, because the miscalculation of defendant’s mandatory minimum sen¬tence had an impact on the sentence imposed, the miscalculation was plain error that affected his substan¬tial rights and seriously compromised the fairness and integrity of the judicial proceedings. U.S. v. Sanchez, __ F.3d __ (2d Cir. Dec. 4, 2014) No. 11-2429-cr.
2nd Circuit holds cocaine mandatory minimum barred eligibility for sentence reduction. (245) In 2009, defendant pled guilty to crack cocaine charges that subjected him to a 10-year mandatory minimum under 18 U.S.C. § 841(b)(1) (A)(iii). His initial guideline range was 108-135 months, but the mandatory minimum altered it to 120-135 months. The government moved for a substantial assistance reduction, and the district court sentenced him to 87 months. In 2010, the Fair Sentencing Act reduced the mandatory minimum sentences for crack offenses. In response, the Sentencing Commission retroactively reduced the base offense levels to conform to the new statutory minimums. Defendant then moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction. The Second Circuit held that defendant was not eligible for a sentence reduction. Because defendant remained subject to the 120-month mandatory minimum, his new guideline range became 120 months, rather than 120-135 months. The fact that the mandatory minimum of 120 months happened to fall within his original sentencing range did not entitle him to a reduction. The FSA did not apply to defendant. U.S. v. Johnson, 732 F.3d 109 (2d Cir. 2013).
2nd Circuit says § 3553(a) does not permit sentence below the statutory minimum. (245). Based on the drug quantity involved in defendant’s drug trafficking offense, and his prior felony drug convictions, defendant faced a minimum sentence of ten years under § 841(b)(1)(B). On appeal, defendant argued that his sentence violated the so-called “parsimony” provision of 18 U.S.C. § 3553(a), which provides that a sentencing court “shall impose a sentence sufficient, but not greater than necessary, to comply with [appropriate sentencing objectives].” Defendant acknowledged that § 841(b)(1)(B) purported to create a mandatory minimum sentence, and that Congress may override the general sentencing requirements. However, he argued that to do so, the statutory mandatory minimum provision must specifically provide that other sentencing provisions are not controlling. The Second Circuit rejected this argument. Sentencing courts must impose a sentence consistent with the factors listed in § 3553(a) “[e]xcept as otherwise specifically provided.” See 18 U.S.C. 3551(a). Thus, the general sentencing provisions in § 3553(a) give way to specific mandatory sentencing provisions elsewhere in the criminal code. U.S. v. Carter, 696 F.3d 229 (2d Cir. 2012).
2nd Circuit holds that denial of safety valve did not make defendant’s sentence unreasonable. (245) Prior to a safety-valve debriefing, the government told defendant that it would not recommend safety-valve relief unless defendant revealed his true identity. During the safety-valve proffer, the government questioned defendant about his identity. He continued to provide them with a false name and Social Security number. He later moved to suppress statements he made during the safety-valve proffer. The Second Circuit rejected defendant’s claim that the government acted in bad faith in continuing the proffer after realizing he did not plan to meet their pre-condition that he reveal his identity. The government was under no obligation to save defendant from himself once he failed to reveal his true identity. The court’s denial of safety valve relief did not make defendant’s sentence procedurally unreasonable. By lying about his identity, defendant failed to satisfy §3553(f). U.S. v. Adekanbi, 675 F.3d 178 (2d Cir. 2012).
2nd Circuit reverses crack defendant’s sentence below mandatory minimum. (245) Defendant pled guilty to possessing five or more grams of cocaine base with intent to distribute. The district court declined to sentence defendant to the 60-month mandatory minimum required by § 841(b)(1)(B), instead sentencing defendant to 15 months. The court justified the sentence by observing that the 100-1 crack-to-powder sentencing ratio established by the statute then in force “does not make sense at all.” The Second Circuit held that the district court “manifestly erred” in sentencing defendant to a term below the statutory minimum. Except in circumstances not applicable here, district courts lack authority to impose a sentence below the statutory minimum. The panel rejected defendant’s arguments that the Fair Sentencing Act of 2010 could be applied retroactively and that the mandatory sentencing scheme in former 21 U.S.C. § 841(b) violated the equal protection clause. U.S. v. Acoff, 634 F.3d 200 (2d Cir. 2011).
2nd Circuit says parsimony clause in § 3553(a) does not bar mandatory sentence under § 841(b). (245) The parsimony clause in 18 U.S.C. § 3553(a) directs the district court to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” Defendant argued that this conflicts with the mandatory sentencing provisions in § 841(b), because the balancing required by § 3553(a) is incompatible with a mandatory sentencing scheme. The Second Circuit disagreed, finding that § 3553(a) is not inconsistent with a sentencing floor. The introductory language in 18 U.S.C. § 3551(A) is qualified with the phrase “[e]xcept as otherwise specifically provided,” and § 841(b)(A) specifically provides for a mandatory minimum sentence of 20 years. Further, § 3553(e) and (f) provide limited circumstances in which a court may depart from a statutory minimum sentence. These provisions would be surplusage under defendant’s interpretation of § 3553(a). U.S. v. Samas, 561 F.3d 108 (2d Cir. 2009).
2nd Circuit reaffirms that crack/powder disparity does not violate equal protection. (245) Defendant argued that the mandatory sentencing scheme in 21 U.S.C. § 841(b) violates equal protection because there is no rational basis for the disparity between the sentences for powder and crack cocaine. The Second Circuit noted that it has repeatedly rejected this argument. Nothing in Kimbrough v. U.S., 552 U.S. 85, 128 S.Ct. 558 (2007), suggests that the powder to crack cocaine disparity in § 841(b) is unconstitutional. Kimbrough bears upon the discretion of district judges to sentence within the maximum and minimum sentence “brackets,” it does not disturb precedent rejecting challenges to the constitutionality of the mandatory sentencing scheme in § 841(b). U.S. v. Samas, 561 F.3d 108 (2d Cir. 2009).
2nd Circuit says arguing that life sentence was only alternative to death waived claim that life sentence was plain error. (245) Defendants were convicted of racketeering, drug trafficking, and murder. Although the guilty verdict on the murder count, 21 U.S.C. § 848(e)(1)(A), exposed defendants to the death penalty, the jury ultimately decided against it and defendants were sentenced to life imprisonment. On appeal, defendants argued for the first time that the district court believed that it was required to impose a life sentence by both § 848(e)(1)(A) and the Guidelines. The Second Circuit found no plain error. The district court’s conclusion that it was required to impose a life sentence was based on defendants’ argument, at the penalty phase, that life imprisonment was the only possible non-capital sentence. Defendants’ tactical decision to agree to mandatory life imprisonment as the only alternative to a death sentence waived any claim of plain error. U.S. v. Juarez-Duarte, __ F.3d __ (5th Cir. Jan. 4, 2008) No. 05-11394.
2nd Circuit holds that Booker does not apply to determination of eligibility for safety valve. (245) In order to be eligible for safety valve protection under 18 U.S.C. § 3553(f), the defendant may not have more than one criminal history point under the Sentencing Guidelines, and may not be an organizer, leader, manager, or supervisor of others in the offense, as determined under the Sentencing Guidelines. Defendant argued that this requirement should now be deemed advisory because the Supreme Court struck down the mandatory nature of the guidelines in Booker. Relying on U.S. v. Barrero, 425 F.3d 154 (2d Cir. 2005), the Second Circuit rejected his argument about criminal history as “plainly inconsistent with the terms of the statute.” Subsection 3553(f)(1) is mandatory, not advisory. The panel also rejected defendant’s argument that judicial fact-finding as to whether defendant was a supervisor or leader violated the Sixth Amendment. Such fact-finding does not permit a higher maximum sentence to be imposed; the only effect of the judicial fact-finding is either to reduce defendant’s sentencing range or to leave the sentencing range along, not to increase it. The district court’s factual finding that defendant was a supervisor did not alter the sentencing range by substituting a higher maximum for the one otherwise applicable to the case. U.S. v. Holguin, 436 F.3d 111 (2d Cir. 2006).
2nd Circuit says offenses seven months apart were not part of single criminal episode. (245) A defendant who is convicted of a drug offense involving 50 or more grams of crack and who has two or more prior felony drug convictions is subject to a mandatory minimum sentence of life imprisonment. The district court found that defendant’s two crack possession convictions, separated by seven months and 250 miles, should be treated as one conviction for mandatory minimum purposes. The Second Circuit reversed. Two prior felony drug convictions should be treated as one if and only if the conduct underlying both convictions was part of a “single criminal episode.” It was clear error for the court to consider defendant’s two prior conviction as one. They were not in any reasonable sense part of a single criminal episode, having been committed seven months apart in cities separated by almost 250 miles. This was not a case where a single act of possession occurred over a period of time. Defendant was arrested in New York City and his drugs were seized. He therefore possessed different drugs when his drugs when he was arrested several months later in Utica. The fact that both offenses involved crack was irrelevant. U.S. v. Powell, 404 F.3d 678 (2d Cir. 2005).
2nd Circuit upholds use of New York youthful offender adjudication to enhance mandatory minimum sentence. (245) Defendant was convicted under New York state law of felony drug offenses, but, based on a finding by the New York court, his convictions were “deemed vacated and replaced by a youthful offender finding.” CPL § 720.20(3). The Second Circuit held that defendant’s youthful offender adjudication was properly counted by the district court as “a prior conviction for a felony drug offense [that] has become final” within the meaning of 21 U.S.C. § 841(b)(1)(A), therefore subjecting him to a 20-year mandatory minimum sentence. The conviction was only “deemed” vacated; it was not vacated in fact. Even where a defendant is adjudicated a youthful offender, post-judgment motions and appeals are permissible “wherever [the relevant] provisions can reasonably be so applied.” Although the New York courts do not use youthful offender adjudications as predicates for enhanced sentencing, it does not result in an “expunged” conviction under the guidelines and did not restrict federal courts from taking them into account. U.S. v. Sampson, 385 F.3d 183 (2d Cir. 2004).
2nd Circuit holds that error in advising defendant of penalties was not harmless. (245) During defendant’s plea colloquy, the court told him that he faced a mandatory minimum sentence of 20 years and a maximum sentence of life imprisonment on the drug counts. In fact, since no drug quantity had been charged, under Apprendi the actual sentencing range was zero to 30 years. The Second Circuit held that the error was not harmless. Although defendant had a two-year delay in presenting his challenge to the court, the critical factor was not the delay, but the gap between the practical effect of a district court informing a defendant of the wrong minimum penalty and the effect of the court informing him of the wrong maximum penalty. The district court informed defendant that a mandatory minimum sentence applied when one did not. Since § 5K1.1 motions are virtually the only mechanism for bypassing statutory minimum sentences, a mandatory minimum sentence represents a strong inducement to plead guilty. Thus, where a defendant has been told that he is facing such a sentence, that information is presumptively significant in the defendant’s decision making. Moreover, the difference between the sentencing range that the court described and the actual range he faced was substantial. Further, there was “the impression of sufficient confusion.” For example, it was unclear whether defendant admitted the drug quantities alleged by the government, or whether he was acknowledging that this was the quantity the government had accused him of dealing in. This combination of factors “tipped the scales” in defendant’s favor. U.S. v. Harrington, 354 F.3d 178 (2d Cir. 2004).
2nd Circuit says court can adjust mandatory minimum sentence to reflect time served under undischarged sentence. (245) Defendant was subject to a mandatory minimum 60-month sentence under 21 U.S.C. § 841(b)(1)(B). At the time of sentencing, defendant was also subject to an undischarged state sentence. The court imposed a 64-month sentence, and, under § 5G1.3(b), ordered that the sentence be served concurrently with the state sentence. Additionally, the court adjusted defendant’s sentence pursuant to Note 2 to § 5G1.3 by deducting the 18 months defendant had served in state prison, leaving defendant with a total of 46 months remaining to complete his sentence. The Second Circuit held that the district court could adjust the mandatory minimum sentence to reflect time served under the undischarged sentence. The panel rejected the government’s claim that an adjustment for time served would result in a sentence below the mandatory minimum prescribed by the statute. Other circuits have similarly rejected this argument. See, e.g. U.S. v. Ross, 219 F.3d 592 (7th Cir. 2000); U.S. v. Dorsey, 166 F.3d 558 (3d Cir. 1999). The effect of an adjustment is similar to that of a credit by the Bureau of Prisons. So long as the total period of incarceration, after the adjustment, is equal or greater than the statutory minimum, the statutory dictate has been observed. U.S. v. Rivers, 329 F.3d 119 (2d Cir. 2003).
2nd Circuit holds that court lacked authority to depart below mandatory minimum. (245) Defendant was subject to a mandatory minimum 240-month sentence pursuant to 21 U.S.C. §§ 841(b)(1)(A) and (B). He moved for a downward departure from the mandatory minimum based on his extraordinary acceptance of responsibility, the age of his prior drug felony, and the fact that he “did the right thing” by pleading guilty. Over the government’s objection, the judge granted defendant’s motion and sentenced him to 168 months. The Second Circuit reversed, holding that the court lacked authority under § 5K2.0 to depart below the statutory minimum sentence. A court may only impose a sentence below a statutory minimum for a drug crime if: (1) the government makes a substantial assistance motion pursuant to 18 U.S.C. § 3553(e), or (2) defendant meets the “safety valve” criteria set forth in 18 U.S.C. § 3553(f). Neither of these provisions was applicable to defendant. U.S. v. Medley, 313 F.3d 745 (2d Cir. 2002).
2nd Circuit holds that state felony was “felony drug offense” even though misdemeanor under federal law. (245) For offenses involving 100 kilograms or more of marijuana, § 841(b)(1)(B) provides for a ten-year minimum sentence if the defendant committed the offense “after a prior conviction for a felony drug offense has become final.” The term “felony drug offense” means a drug “offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country ….” 21 U.S.C. § 802(44). In 1997, defendant was convicted in Connecticut of possession of a hallucinogenic substance. A first-time violation is punishable by up to five year imprisonment, and is therefore a felony under Connecticut law. Defendant nonetheless eHargued that the Connecticut offense was not a “felony drug offense” because a federal offense for the same conduct would have been only a misdemeanor. See 21 U.S.C. § 844. The Second Circuit rejected this argument. Defendant’s 1997 conviction was under state, not federal law, and the plain language of § 802(44) provides that a state felony drug offense is sufficient to warrant a sentence enhancement under § 841(b)(10(B). U.S. v. Richards, 302 F.3d 58 (2d Cir. 2002).
2nd Circuit focuses on criminal activity after conviction became final to determine if it is “prior” conviction. (245) Under 21 U.S.C. § 841(b)(1)(B), a district court may impose a sentence of between five and 40 years. But, “[i]f person commits . . . a violation after a prior conviction for a felony drug offense has become final,” the term of imprisonment increases to a range of 10 years to life imprisonment. The Fourth, Seventh and Eleventh Circuits, hold that for purposes of enhancing a mandatory minimum under § 841(b)(1)(B) based on a defendant’s prior drug-conviction, the question is whether or not the defendant ceased criminal activity after the prior conviction. In contrast, the Sixth and Eighth Circuits focus the inquiry on whether the convictions constitute separate criminal episodes. The Second Circuit, agreeing with the Fourth, Seventh, and Eleventh Circuits, held that to demonstrate that a particular final conviction is “prior” under § 841(b)(1)(B), the government must show that a defendant had a meaningful opportunity to refrain from criminal activity and instead engaged in criminality anew. Here, after defendant’s state conviction became final in November 1996, he continued to engage in significant acts in furtherance of the drug conspiracy, such as arranging in December 1998 for one of his co-conspirators to transport more than 400 pounds of marijuana. U.S. v. Martino, 294 F.3d 346 (2d Cir. 2002).
2nd Circuit vacates mandatory minimum sentence based on Apprendi. (245) Based on its drug quantity findings, the district court sentenced defendant to a 240-month mandatory minimum sentence under § 841(b)(1)(A). After defendant was sentenced, the Second Circuit decided U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc), which held that Apprendi applies to drug quantity findings under the federal drug statute, and U.S. v. Guevara, 277 F.3d 111 (2d Cir. 2001), amended 298 F.3d 124 (2d Cir. 2002), which held that Apprendi is violated when a judge’s finding triggers a mandatory minimum sentence. Here, drug quantity was never submitted to the jury because defendant pleaded guilty. At his plea hearing, defendant explicitly stated his willingness to have the district judge determine drug quantity because, as defendant’s attorney acknowledged, drug quantity was not an element of a § 841 offense. In light of his counsel’s comment, it was clear that defendant’s decision to submit the drug-quantity question to the judge was influenced by his understanding that he would not have been entitled to a jury determination of that issue. The Second Circuit held that defendant’s sentence violated Apprendi and remanded for resentencing. Any sentence under § 841(b)(1)(A) or (B) must be based either on an allocution that settles the issue of drug quantity or on a finding as to that issue by a fact-finder applying a reasonable doubt standard. The district court has discretion to determine whether that means allowing defendant to withdraw or modify his plea or to proceed to trial on the issue of drug quantity alone. U.S. v. Yu, 285 F.3d 192 (2d Cir. 2002).
2nd Circuit says Apprendi bars use of mandatory minimum that exceeds otherwise highest available sentence. (245) Defendant’s guideline sentencing range was 168-210 months. However, based on the court’s finding that defendant’s offense involved more than one kilogram of heroin, the court found that defendant was subject to a mandatory minimum sentence of 240 months under 21 U.S.C. § 841(b)(1)(A)(i). The Second Circuit concluded that, after Apprendi v. New Jersey, 530 U.S. 466 (2000), a statutory mandatory minimum sentence specified in either § 841(b)(1)(A) or (b) cannot mandate a prison sentence that exceeds the highest sentence to which the defendant would otherwise have been exposed (i.e. the top of the federal guideline range) if the applicability of subsections (A) or (B) depends on a drug quantity finding not made by the jury. The only other circuit that has addressed this narrow issue rejected the defendant’s challenge on the ground that Apprendi “only applies to sentences beyond the prescribed statutory maximum.” U.S. v. Harris, 243 F.3d 806, 809 (4th Cir.), affirmed, Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013). A number of other circuits have broadly stated that Apprendi is not implicated where a sentence falls within the maximum sentence prescribed in the applicable statute. However, the panel sided with the Sixth and Ninth Circuits, which have held that Apprendi does apply to mandatory minimums. This holding is consistent with McMillan v. Pennsylvania, 477 U.S. 79 (1986) because here, the mandatory minimum term imposed by the district court exceeded the otherwise applicable sentencing range. McMillan is limited “to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict.” U.S. v. Guevara, 277 F.3d 111 (2d Cir. 2001), amended 298 F.3d 124 (2d Cir. 2002).
2nd Circuit finds any Apprendi error harmless in light of drug quantity stipulation. (245) The judge, at sentencing, determined the quantity of drugs involved in defendant’s crime by a preponderance of the evidence. Defendant’s 120-month sentence fell below the statutory maximum applicable regardless of the quantity of drugs involved, and thus did not appear to implicate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). However, defendant argued that the reasoning underlying Apprendi still required a jury finding because the court’s drug quantity finding triggered a mandatory minimum sentence of ten years. The Second Circuit found it unnecessary to resolve this issue because at trial, defendant stipulated to the quantity of drugs involved in his crime. Thus, even if the court erred, the error was harmless. Under the stipulation, the jury could not have found differently. Because defendant stipulated that his crime involved over 2.6 kilograms of heroin, under 21 U.S.C. § 841(b)(1)(A), he would have been subject to a mandatory minimum sentence of 10 years, in any event. U.S. v. Champion, 234 F.3d 106 (2d Cir. 2000).
2nd Circuit does not determine which mandatory minimum applies where guidelines range higher. (245) Defendant argued that because he was convicted of conspiracy to possess and distribute both cocaine and crack, and the jury returned a general guilty verdict, he should have received a ten-year minimum sentence (applicable under § 841(b)(1)(B) to an offense involving cocaine when the defendant has prior drug convictions), rather than a 20-year minimum sentence (applicable under § 841(b)(1) (A) to an offense involving crack when the defendant has prior drug convictions). The Second Circuit found the cases cited by defendant inapplicable, since the guideline range here was 292-365 months, higher than both the statutory 10-year minimum term for powder cocaine and the 20-year minimum term for crack. Thus, regardless of which statutory minimum prison term applied, defendant’s sentencing range would not be altered. Thus, there was no need for remand. U.S. v. Stephenson, 183 F.3d 110 (2d Cir. 1999).
2nd Circuit says enhancement can be based on prior felony prosecuted by information. (245) Defendant was convicted of drug charges. The district court found he was subject to a mandatory minimum 20-year sentence under 21 U.S.C. § 841(b) based on a prior felony drug conviction in California. The district court later granted defendant’s motion for a sentence reduction based on U.S. v. Collado, 106 F.3d 1097 (2d Cir. 1997). Collado vacated a sentence enhancement based on a prior felony conviction because the felony had not been prosecuted following an indictment or a waiver of the indictment. Defendant’s California offense was prosecuted pursuant to an information rather than an indictment. The Second Circuit reversed the ruling that defendant was entitled to a reduction in sentence. Collado was overruled by U.S. v. Ortiz, 143 F.3d 728 (2d Cir. 1998). McKee v. U.S., 167 F.3d 103 (2d Cir. 1999).
2nd Circuit says general verdict requires sentence to be based on drug with lowest minimum sentence. (245) Defendant was convicted by a general verdict of conspiring to possess with intent to distribute four different drugs—cocaine, crack, heroin, and marijuana. The district court found defendant subject to a 20-year mandatory minimum sentence for a crack conspiracy involving more than 50 grams. On appeal, the Second Circuit reversed, holding that under U.S. v. Orozco-Prada, 732 F.2d 1076 (2d Cir. 1984), a general verdict requires the court to assume that the conviction was for the offense carrying the most lenient sentence for which the evidence was sufficient. Here, the marijuana evidence was legally insufficient, and therefore defendant’s sentence should not have been based on the more lenient marijuana penalties. However, there was ample evidence of a cocaine/ heroin conspiracy, and the penalties were more lenient than for crack. This is not at odds with recent cases holding that a judge may base a sentence on kinds and quantities of drugs that were not considered by the jury or were involved in acquitted counts. This is true under the guidelines, but not necessarily with respect to a mandatory minimum sentence. Under 21 U.S.C. § 841(b)(1), a mandatory minimum sentence may not be imposed for conduct for which a defendant was not convicted. U.S. v. Barnes, 158 F.3d 662 (2d Cir. 1998).
2nd Circuit holds indictment requirement in § 851(a)(2) applies to current offense, not prior felonies. (245) Title 21 U.S.C. § 851(a)(2) provides that an information alleging a previous felony that triggers a sentence enhancement under § 841(b) may not be filed if the increased punishment is more than three years “unless the person either waived or was given prosecution by indictment for the offense for which such increased punishment may be imposed.” In U.S. v. Collado, 106 F.3d 1097 (2d Cir. 1997), a Second Circuit panel, finding § 851(a)(2) ambiguous, held that the indictment requirement refers to the prior felony offense, not the current offense. The Second Circuit, overruling Collado, held that the prosecution by indictment requirement in § 851 refers to the current offense, not the prior felony offense. The government provided new information that better supported its position concerning the meaning of § 851(a) (2). At the time § 851(a)(2) was enacted in 1970, federal felony drug violations were prosecutable without indictment in the Virgin Islands and the Panama Canal Zone. Thus, the indictment requirement was not redundant as applied to federal prosecutions. U.S. v. Ortiz, 143 F.3d 728 (2d Cir. 1998).
2nd Circuit holds Travel Act violation was prior felony drug offense for mandatory minimum purposes. (245) Defendant was convicted of drug charges. The statute called for a mandatory life sentence for offenders with two or more convictions for a “felony drug offense.” The Second Circuit held that defendant’s 1987 conviction under the Travel Act, 18 U.S.C. § 1952(a), for interstate travel in aid of the distribution of a controlled substance constituted a felony drug offense. “Unlawful activity” under the Travel Act includes any business enterprise involving narcotics or controlled substances. By its terms then, the Travel Act is a statute that “prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances.” Although the Travel Act covers more than drug-related conduct, this does not mean it is not a law relating to controlled substances. U.S. v. Salerno, 66 F.3d 544 (2d Cir. 1995).
2nd Circuit holds guidelines’ LSD amendment does not apply to mandatory minimums. (245) Defendant argued that the amendment to § 2D1.1(c) which equated each dose of LSD to 0.4 mg of LSD for sentencing purposes also applied in determining whether a statutory mandatory minimum applies. The Second Circuit disagreed, concluding that the guideline amendment did not effect the method of determining weight for mandatory minimum purposes. The commentary clearly states that the new guidelines’ method does not override the statutory “mixture or substance” approach used to apply any mandatory minimum sentence. Moreover, the Sentencing Commission lacks authority to displace the statutory method. Judge Leval dissented. U.S. v. Kinder, 64 F.3d 757 (2d Cir. 1995).
2nd Circuit says amendment to commentary does not affect prior holding that cocaine base means more than crack. (245) On defendant’s prior appeal, U.S. v. Jackson, 968 F.2d 158 (2d Cir. 1992) (Jackson I), the Second Circuit ruled that a substance that has been identified as “cocaine base” by chemists but is not pure enough to be used as “crack” falls within the definition of “cocaine base” under 21 U.S.C. § 841 and guideline § 2D1.1. On remand, the district court found that defendant possessed cocaine base, but not crack, and imposed a mandatory 10-year sentence. On his second appeal, defendant asked the court to revisit the issue, pointing out that the Sentencing Commission amended the notes following the Drug Quantity Table by defining “cocaine base” to mean only “crack.” The Second Circuit noted that it had previously rejected this argument in U.S. v. Palacio, 4 F.3d 150 (2d Cir. 1993). Although the Commission’s interpretation of guideline § 2D1.1 is authoritative, the amendment could not revise the statutory interpretation the court had already made in Jackson I. The court would not reinterpret the statute in the absence of new guidance from Congress. Congress did not provide that guidance by allowing the amendment to pass. The amendment does not call for revision of the court’s interpretation of § 841(b)(1)(A)(iii). The 10-year mandatory sentence was not cruel and unusual punishment. U.S. v. Jackson, 59 F.3d 1421 (2d Cir. 1995).
2nd Circuit says conviction while conspiracy was ongoing was a “prior” conviction. (245) Defendant pled guilty to a marijuana conspiracy that extended from 1974 to 1990. The district court applied the 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B), finding defendant had a prior drug conviction in 1976. Defendant challenged this, since the 1976 drug conviction for an act committed after the instant conspiracy began, while the conspiracy was active. The 2nd Circuit held that the 1976 conviction constituted a prior conviction. Conspiracy is a continuing offense, and defendant “committed” the crime of conspiracy throughout its duration. Therefore, it could be said that the conspiracy offense occurred after his 1976 offense, and the 1976 offense could be considered a prior conviction. U.S. v. Lovell, 16 F.3d 494 (2nd Cir. 1994).
2nd Circuit finds defendant could have reasonably foreseen more than a kilo of heroin. (245) Defendant picked up a briefcase at the airport containing 1.013 kilograms of heroin. The district judge refused to impose the mandatory minimum sentence of 10 years, finding that defendant reasonably believed she possessed only 400 grams. The 2nd Circuit reversed. The court assumed without deciding that the “reasonable foreseeability” doctrine applies even in possession cases. But here, the district court erred in finding that defendant did not reasonably foresee that she would possess more than a kilogram of heroin. Defendant testified that she had observed a prior transaction where her boyfriend had smuggled only 400 grams of heroin. However, she also admitted she trafficked in more than one kilogram of heroin over a several-month period. A reasonable distributor of heroin in such quantities should be able to foresee that someday she would be handed at one time a one-kilogram cache for distribution. Judge Newman concurred. U.S. v. Ekwunoh, 12 F.3d 368 (2nd Cir. 1993).
2nd Circuit holds that statutory minimum applies only to conduct which led to conviction under that statute. (245) The 2nd Circuit held that the statutory mandatory minimum sentences of 21 U.S.C. section 841(b)(1) apply only to the conduct which actually resulted in a conviction under that statute. Thus, the district court erred in concluding that it should include cocaine involved in conduct underlying a dismissed charge in determining whether the mandatory minimum for the offense of conviction applied. Since only .431 grams of cocaine were involved in the offense of conviction, the mandatory minimum should not have applied. However, on remand the district court may consider whether the additional cocaine should be considered as relevant conduct in setting the base offense level. The district court here may have incorrectly assumed that section 3D1.2(d) (grouping rules for convictions), rather than section 1B1.3(a)(2) (relevant conduct) applied to this case. The difference is significant, because section 1B1.3(a)(2) requires the sentencing court to determine whether the additional conduct was “part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S. v. Darmand, 3 F.3d 1578 (2nd Cir. 1993).
2nd Circuit says indictment need not allege drug quantity for mandatory minimums to apply. (245) Defendant argued that the 10-year mandatory minimum sentence under 21 U.S.C. section 960(b)(1)(B) is not applicable in the absence of an allegation in the indictment concerning the quantity of drugs involved. The 2nd Circuit rejected this claim. Since drug quantity is not an element of the offense, a statement of drug quantity is not required in the indictment. Before pleading guilty, however, a defendant is entitled to notice of the mandatory minimum sentences that may apply. U.S. v. Pico, 2 F.3d 472 (2nd Cir. 1993).
2nd Circuit relies on $30,000 as evidence that defendant could foresee large drug quantity. (245) The 2nd Circuit upheld the application of a mandatory minimum sentence, relying on defendant’s receipt of $30,000 as evidence that he could have reasonably foreseen that he was participating in a conspiracy involving more than five kilograms of cocaine. Defendant admitted that he was to receive $30,000 as payment for picking up a package. He also acknowledged that based upon this large payment, he knew that he was involved in helping to import a controlled substance. While it was questionable whether defendant was capable of off-loading all 51 kilograms at one time, he should have reasonably known by virtue of his payment that he was facilitating the importation of a large quantity of drugs. U.S. v. Pico, 2 F.3d 472 (2nd Cir. 1993).
2nd Circuit refuses to consider whether mandatory minimum applies to defendant who grows marijuana for personal use. (245) Defendant argued for the first time on appeal that Congress did not intend to apply the mandatory minimum sentence statute, 21 U.S.C. section 841(b), to defendants who do not distribute marijuana, but who grow it only for their own personal use. The 2nd Circuit found that it could not address this contention, since it was not adequately developed in the district court. U.S. v. Proyect, 989 F.2d 84 (2nd Cir. 1993).
2nd Circuit says guideline forseeability standard must be applied to conspiracies under 21 U.S.C. §846. (245) Defendant received a mandatory minimum 10-year sentence after being convicted of conspiring to distribute over five kilograms of cocaine in violation of 21 U.S.C. section 846. Because of the applicability of section 846, the district court never determined whether the five kilograms involved in the conspiracy was reasonably foreseeable to defendant, as would have been required under the guidelines. The government contended that defendant’s reasonable foreseeability as to the amount of cocaine involved in the conspiracy was not required under section 841(b) as it is under the guidelines. The 2nd Circuit rejected this broad approach, and held that the same “reasonable foreseeability” standard of the guidelines must be applied to sentencing for conspiracy under section 846. U.S. v. Martinez, 987 F.2d 920 (2nd Cir. 1993).
2nd Circuit holds that section 851(a)(1) information must be filed before jury selection. (245) In order to enhance a sentence under 21 U.S.C. section 841(b)(1)(A) based upon a defendant’s prior convictions, the government must file an information before trial under section 851(a)(1). The 2nd Circuit held that for purposes of section 851(a)(1), “before trial” means before jury selection has begun. In this case the government’s second information was filed after the jury was selected, but before it was sworn, and thus was not timely. However, the clerk’s office incorrectly rejected the first information because the attorney’s address did not appear below the signature. Fed. R. Crim. P. 11’s requirement that the signing attorney’s address appear below the signature is not applicable to a section 851 information. The case was remanded for a determination of whether the first information was timely filed. Judge Kearse dissented. U.S. v. White, 980 F.2d 836 (2nd Cir. 1992).
2nd Circuit affirms that judge, not jury, determines drug quantity for purposes of mandatory minimum sentence. (245) The 2nd Circuit upheld the application of the enhanced sentencing provisions of 21 U.S.C. section 841(b) based upon the district court’s determination that in excess of 100 kilograms of marijuana were involved in his offense. No specific jury finding as to drug quantity is necessary in order to apply the enhanced sentencing provisions of section 841(b). The district judge, rather than the jury must determine pursuant to section 2D1.4 the quantities involved in narcotics offenses. At sentencing, the amount of a controlled substance need only be proven by a preponderance of the evidence, and the district court’s assessment of drug quantity is subject only to a “clearly erroneous” standard of review. U.S. v. Moore, 968 F.2d 216 (2nd Cir. 1992).
2nd Circuit finds jury need not determine drug quantity for mandatory minimum sentence. (245) Defendant contended that a district court cannot impose a mandatory minimum sentence under 21 U.S.C. § 841(b) without a jury finding, beyond a reasonable doubt, that the crime involved a quantity of drugs in excess of the amount required by statute. The 2nd Circuit rejected this argument, finding that quantity relates solely to sentencing. “[A]t sentencing, the district court is not limited to conclusions reached by the jury or even evidence presented at trial, but instead may consider any evidence that it deems appropriate.” Dictum in an earlier 2nd Circuit case said only that the issue of quantity may be submitted to the jury. U.S. v. Madkour, 930 F.2d 234 (2nd Cir. 1991).
2nd Circuit upholds appealability of mandatory minimum sentencing scheme as to quantity of drugs. (245) Defendant was sentenced for possessing in excess of 100 plants of marijuana, triggering a five-year mandatory minimum sentence. The 2nd Circuit rejected the government’s contention that because defendant pled guilty, he waived the right to appeal all questions involving the quantity of drugs. Defendant preserved this issue for appeal by informing the court prior to sentencing that he intended to appeal the issue. Claims of improper application of mandatory minimum sentences are appealable, just as claims for improper application of sentencing guidelines, if the defendant first presented his argument to the district court for determination. U.S. v. Madkour, 930 F.2d 234 (2nd Cir. 1991).
2nd Circuit affirms mandatory minimum sentence greater than applicable guideline range. (245) Defendant pled guilty to conspiracy to distribute heroin, which resulted in a guideline range of 78 to 97 months. However, the statute provided for a mandatory minimum 10-year sentence for distribution of heroin. Defendant contended that his 10-year sentence exceeded the period provided by the sentencing guidelines. The 2nd Circuit disagreed, since the guidelines provide that where a mandatory minimum sentence is greater than the maximum guideline range, the mandatory minimum sentence becomes the guidelines sentence. U.S. v. Larotonda, 927 F.2d 697 (2nd Cir. 1991).
2nd Circuit remands where, in departing downward, court mistakenly believed mandatory minimum sentence applied. (245) The presentence report and plea agreement incorrectly stated that defendant was subject to a mandatory minimum five-year sentence. In departing downward for substantial assistance, the court relied on 18 U.S.C. § 3553(e), which deals only with downward departures below a minimum level established by statute. The 2nd Circuit remanded for resentencing, because the court obviously felt that the mandatory minimum term applied. Since the appellate court could not assume that the same 48-month sentence would have been imposed in the absence of the error, the case was remanded for resentencing. U.S. v. Moon, 926 F.2d 204 (2nd Cir. 1991).
3rd Circuit allows retroactive sentence reductions despite original sentence below mandatory minimum. (245) In these consolidated cases, defendants were each convicted of a crack cocaine offense, the government moved for a substantial assistance departure, and the district court granted the departure and sentenced them below the statutory mandatory minimum. After sentencing, the Fair Sentencing Act of 2010 (FSA) became law, and the Sentencing Commission approved Amendment 750, which retroactively lowered the base offense levels for certain crack offenses. In light of Amendment 750, defendants moved to further reduce their sentences. The Third Circuit held that when a defendant was subject to a mandatory minimum term and was sentenced to a term under the guidelines, but below the mandatory minimum as a result of the government’s § 3553 motion, and when the sentencing range is later lowered by the Sentencing Commission, that defendant is eligible to move for sentence reduction under § 3582(c) (2). Case law barring such reductions for offenders subject to mandatory minimums has been superseded by the Sentencing Commission’s November 2011 revisions to the Guidelines. U.S. v. Savani, 733 F.3d 56 (3d Cir. 2013).
3rd Circuit says crack defendant convicted before FSA but sentenced after was entitled to resentencing. (245) Defendant argued that he was entitled to de novo resentencing in light of the Fair Sentencing Act of 2010 (FSA), which raised the amount of crack that triggered a mandatory minimum sentence from five grams to 28 grams. Defendant’s offense involved about 12 grams. Although the FSA had been signed into law at the time of sentencing, the government argued that it should not apply because defendant had been convicted before its enactment. The district court agreed, and thus defendant was subject to a ten-year mandatory minimum sentence. A few months after defendant was sentenced, the Third Circuit decided U.S. v. Dixon, 648 F.3d 195 (3d Cir. 2011), which held that the FSA applies to all defendants sentenced after its enactment, regardless of whether their offenses and convictions predated its passage. In light of Dixon, the panel vacated defendant’s sentence and remanded for resentencing in accordance with the provisions of the FSA. U.S. v. Self, 681 F.3d 190 (3d Cir. 2012).
3rd Circuit reverses enhanced drug sentence for lack of § 851 notice. (245) The statutory maximum for defendant’s drug distribution counts was 20 years, or 240 months, under 21 U.S.C. § 841(b)(1)(C). However, the district court sentenced him to 30 years, because he had a prior felony drug conviction. On appeal, the Third Circuit reversed, holding that this 30-year maximum is only available if, before trial, the government files an information under 21 U.S.C. § 851(a)(1) giving notice that the prior conviction will be relied upon. Here, no such information was filed, and the Third Circuit held that it was plain error to impose a 30-year sentence. Defendant was prejudiced by the lack of notice because he was deprived of the opportunity to consider the effect of the enhancement on his decision to go to trial. U.S. v. Isaac, 655 F.3d 148 (3d Cir. 2011).
3rd Circuit says court properly advised defendant that he faced mandatory life sentence. (245) Defendant pled guilty to engaging in a “continuing criminal enterprise,” in violation of 21 U.S.C. § 848(c). Section 848(b) provides for a mandatory life sentence if the defendant is a principal administrator or leader of the enterprise and the offense involved specified quantities of controlled substances. Defendant argued that his plea was not knowing and voluntary because the district court failed to advise him that admitting involvement with 150 kilograms of cocaine triggered a mandatory life sentence. The Third Circuit found no error. Although the court made a confusing statement suggesting that it had discretion in sentencing him, it later dispelled that confusion by admonishing him that his guilty plea exposed him to a mandatory sentence of life imprisonment. Defendant acknowledged that he understood. U.S. v. Tidwell, 521 F.3d 236 (3d Cir. 2008).
3rd Circuit says life sentence for continuing criminal enterprise is enhancement, not a separate crime. (245) Defendant pled guilty to engaging in a “continuing criminal enterprise,” in violation of 21 U.S.C. § 848(c). Subsection (a) provides for a sentence of 20 years to life, and for defendants with a prior conviction under this subsection, a sentence of 30 years to life. However, § 848(b) provides for a mandatory term of life imprisonment if the defendant is a principal administrator or leader of the enterprise and the offense involved specified quantities of controlled substances. After reviewing the title, text, and structure of the statute, and its legislative history, the Third Circuit held that § 848(b) is a sentencing enhancement, not a separate crime. Thus, the government did not have to charge defendant with violating subsection (b), and the conduct proscribed by subsection (b) only needed to be established by a preponderance of the evidence. U.S. v. Tidwell, 521 F.3d 236 (3d Cir. 2008).
3rd Circuit holds that adjudication of delinquency under Pennsylvania law was not “prior conviction”. (245) Defendant was charged with possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Section 841(b)(1)(B) calls for a mandatory minimum sentence of 10 years for anyone who has violated that provision “after a prior conviction for a felony drug offense has become final.” The government sought an enhanced sentence for defendant based on a 1999 adjudication of delinquency in a Pennsylvania county juvenile court. The Third Circuit held that “prior conviction” as used in § 841(b)(1)(B) does not include adjudications of delinquency under the Pennsylvania Juvenile Act. The panel examined the procedures and penalties under the Pennsylvania Juvenile Act and found it clear that an adjudication of delinquency was not the same as an adult conviction. For example, under the Act, a child is not given the right to a trial by jury, and does not face the same punishment associated with conviction in an adult court. The panel acknowledged decisions in other circuits ruling that a youthful offender adjudication under New York law was a prior conviction under § 841(b). However, unlike an adjudication of delinquency under the Pennsylvania law, a youthful offender adjudication under New York law follows an adult conviction in an adult court, with a full panoply of procedural protections. U.S. v. Huggins, 467 F.3d 359 (3d Cir. 2006).
3rd Circuit rejects claim that prior convictions need to be determined by jury. (245) Defendant received enhanced sentences under 21 U.S.C. § 843(b) and § 841(b)(1)(C) based on the district court’s finding that defendant had a prior felony drug conviction. The Third Circuit rejected defendant’s claim that under U.S. v. Booker, 543 U.S. 220 (2005), the fact of defendant’s prior convictions should have been submitted to a jury. This argument was rejected by the Supreme Court in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), and Booker and Blakely v. Washington, 542 U.S. 296 (2004) did not overrule it. While there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries, the holding in Almendarez-Torres remains binding law. U.S. v. Ordaz, 398 F.3d 236 (3d Cir. 2005).
3rd Circuit holds that sentencing court lacked authority to impose sentence below mandatory minimum. (245) Defendant pled guilty to possession of cocaine base with intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), which subjected him to a 15-year mandatory minimum sentence. Although the court thought this sentence “excessive,” it found that it was compelled to impose it. The Third Circuit agreed that the district court lacked authority to sentence defendant below the mandatory minimum sentence. The panel rejected defendant’s argument that in 18 U.S.C. § 3553(a)(2), Congress explicitly precluded court from imposing sentences that plainly exceeded that which was necessary to fulfill the four delineated purposes of sentencing. Section 3553(a) sets forth a number of other factors that a sentencing court must consider when sentencing. In addition, § 3553(b) states that the court must sentence the defendant within the sentencing guideline range unless the court finds certain aggravating or mitigating circumstances not adequately considered by the Sentencing Commission. Thus, a court must refer to the purposes outlined in § 3553(a)(2) “except as otherwise specifically provided.” The mandatory minimum sentences defendant was exposed to clearly fit within the “except as otherwise specifically provided” exclusion of § 3553(a). U.S. v. Kellum, 356 F.3d 285 (3d Cir. 2004).
3rd Circuit holds that mandatory minimum sentence was proper starting point for downward departure. (245) Defendant’s offense level and criminal history category resulted in a guideline range of 64-78 months’ imprisonment. However, defendant was subject to a mandatory minimum sentence of 10 years, pursuant to 21 U.S.C. § 841(b)(1). The court used that 120-month mandatory minimum as the starting point for granting a downward departure pursuant to the government’s substantial assistance motion. The Third Circuit agreed that the mandatory minimum sentence, and not the otherwise applicable guideline range, was the proper starting point for the downward departure. Several other courts of appeals to decide this issue are in agreement. See, e.g. U.S. v. Li, 206 F.3d 78 (1st Cir. 2000); U.S. v. Head, 178 F.3d 1205 (11th Cir. 1999). Although 18 U.S.C. § 3553(e) requires a court to select a starting point “in accordance with the guidelines,” that does not mean the court should disregard any applicable mandatory minimum sentence. See U.S.S.G. § 5G1.1(b) (providing that “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”) Therefore, the 120-month mandatory minimum sentence displaced the 63-78 month range as the guideline range. U.S. v. Cordero, 313 F.3d 161 (3d Cir. 2002).
3rd Circuit says mandatory minimum statute does not require drugs to be proximate cause of death. (245) Defendant sold 3/8 of a gram of heroin to Bungar, a member of a group of addicts. Bungar delivered the heroin to Minchoff and Allison, and they both died of a heroin overdose. The district court sentenced defendant to the mandatory 20-year term required by 21 U.S.C. § 841(b)(1)(C) when “death or serious bodily injury results from the use of” the drugs the defendant was convicted of distributing. Defendant argued that this provision requires the distribution of drugs to be, in the common law sense, the proximate cause of the death or serious bodily injury. The Third Circuit held that § 841(b)(1)(C) does not contain a proximate cause requirement. The statute is plain and unambiguous. It was indisputable that Allison’s death was “caused by a heroin overdose as a result of the heroin delivered to her by Bungar during the operation of the conspiracy.” Congress intended that the 20-year mandatory minimum would apply in such a case without regard for common law proximate cause concepts. Although it is possible that a death could be so remote a consequence that the mandatory minimum 20-year sentence was not applicable, this was not such a case. U.S. v. Robinson, 167 F.3d 824 (3d Cir. 1999).
3rd Circuit says § 851 only requires foreign convictions to be fundamentally fair. (245) Defendant pled guilty to conspiring to import heroin into the U.S. The district court imposed an enhanced sentence based upon defendant’s prior felony drug conviction in the Philippines. Section 851(c)(2) expressly bars the consideration of any prior conviction that was obtained in violation of the U.S. Constitution. Defendant argued that the enhancement was improper because she was denied effective assistance of counsel in the Philippines and the Philippine legal system does not recognize the right to a jury. The Third Circuit held that §851 only excludes those convictions obtained in a manner inconsistent with the concepts of fundamental fairness and liberty in the due process clause. The Philippine conviction was obtained consistently with the concept of fundamental fairness. Section 851 does not exclude criminal convictions obtained under a foreign system merely because that sovereign does not give the defendant the right to a jury trial. U.S. v. Kole, 164 F.3d 164 (3d Cir. 1998).
3rd Circuit holds § 851’s indictment requirement does not apply to prior offenses. (245) Before defendant’s plea, the government filed an information seeking an enhanced sentence under 21 U.S.C. § 851 based on two prior state felony convictions. Section 851 says that the enhanced penalty may not be imposed “unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” Defendant argued that this meant that his prior convictions could not be used for enhancement because they were not obtained by indictment. The Third Circuit held that the indictment requirement in § 851(a)(2) applies only to the current offense, not the prior convictions. Under defendant’s reasoning many prior state and foreign convictions would be excluded, which would be contrary to Congress’s intent to broaden the scope of prior convictions governed by the statute. U.S. v. Lynch, 158 F.3d 195(3d Cir. 1998).
3rd Circuit holds type of meth is irrelevant for mandatory minimum purposes. (245) The district court found defendant responsible for 11.6 grams of DL-methamphetamine. Under 21 U.S.C. § 841(b)(1)(A)(viii) there is a 10-year mandatory minimum sentence for offenses involving more than 100 grams of methamphetamine. The district court divided the DL- methamphetamine into its components (D-meth and L-meth), and found that only D-meth should be counted toward the 100 grams required by the mandatory minimum statute. Finding defendant accountable for only 55.8 grams of D-meth, the court did not impose the mandatory minimum sentence. The Third Circuit held that the type of methamphetamine is irrelevant for mandatory minimum purposes. The statute does not distinguish between D- and L-meth. The case relied on by the district court, U.S. v. Bogusz, 43 F.3d 82 (3d Cir. 1994), involved the guidelines and was not applicable to the statute. Moreover, Bogusz has been rendered virtually obsolete since the Sentencing Commission has eliminated the distinction between the types of methamphetamine effective November 1995. U.S. v. DeJulius, 121 F.3d 891 (3d Cir. 1997).
3rd Circuit rejects ineffective assistance claim where mandatory minimum applied. (245) Defendant argued that his counsel failed to object to a miscalculation of his sentence under the guidelines. He contended that he was eligible for a minimum sentence of 87 months under the guidelines. The Third Circuit rejected the ineffective assistance claim, because the mandatory minimum sentence for his offense was 120 months. Under § 5G1.1(c)(2), where the statutory minimum sentence exceeds the defendant’s guideline range, the court is required to impose the statutory minimum sentence. A court is powerless to impose a sentence below the statutory minimum without a government motion. Santana v. U.S., 98 F.3d 752 (3d Cir. 1996).
3rd Circuit holds LSD guideline inapplicable for mandatory minimum purposes. (245) Chapman v. U.S., 500 U.S. 453 (1991) requires an LSD sentence to be based on the combined weight of the LSD and the blotter paper carrier medium. Defendant moved to reduce his sentence under the November 1993 amendment to guideline § 2D1.1(c) which assigns a weight of .4 mg to a dose of LSD. The Third Circuit refused to reduce defendant’s sentence, holding that the amendment does not apply in computing sentences for mandatory minimum purposes. The amended language expressly excludes the use of the .4 mg amount in computing statutory mandatory minimum sentences. Thus, even if defendant’s guideline range were reduced by applying the amendment, his 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1) would not be affected. U.S. v. Hanlin, 48 F.3d 121 (3d Cir. 1995).
3rd Circuit upholds reliance on hearsay to determine drug quantity. (245) The 3rd Circuit upheld the district court’s reliance on a pretrial statement by one witness to determine drug quantity. The witness stated that prior to her arrest she and one of the defendants brought between two to four pounds of heroin per month from Los Angeles during the period of April 1986 through September 1987. Based on this statement, the district court attributed 15.5 kilograms of heroin to defendants. This calculation did not affect one defendant’s mandatory life sentence under 21 U.S.C. section 841(b)(1)(A)(i), since the jury found beyond a reasonable doubt that defendant conspired to possess in excess of one kilogram of heroin. The statement was not admitted into evidence at trial and the jury did not rely on it in any way. Although neither defendant had the opportunity to cross-examine the witness about her statement, reliable hearsay is generally admissible. The credibility of the witness was for the district court to determine. U.S. v. McGlory, 968 F.2d 309 (3rd Cir. 1992).
3rd Circuit affirms 841(b) enhancement for priors even though state law no longer made offense a felony. (245) Under 21 U.S.C. section 841(b)(1)(A), a defendant with two or more prior felony drug convictions is subject to a mandatory life sentence. Defendant was convicted in 1971 of possession of cocaine under a Pennsylvania law which made it a felony. Effective 1972, that law was repealed. Under the new law, possession of cocaine was reduced to a misdemeanor. Defendant contended that his conviction could not be considered a felony because, if he were convicted of the same conduct today, it would only be a misdemeanor under Pennsylvania law. The 3rd Circuit rejected this interpretation, despite defendant’s analogy to guideline section 4B1.2, which defines a prior felony conviction in terms of the penalty for the offense. Tremendous confusion in sentencing would result if the sentencing court had to analyze the current status of every prior state law under which a defendant was previously convicted. Judge Becker concurred. U.S. v. McGlory, 968 F.2d 309 (3rd Cir. 1992).
3rd Circuit affirms 10-year mandatory minimum sentence for 21-year old drug courier. (245) Defendant pled guilty to possessing with intent to distribute 374 grams of a mixture containing cocaine base. The 3rd Circuit affirmed the 10-year mandatory minimum sentence, noting that the district court correctly determined that it lacked authority to depart below this mandatory minimum. Judge Higginbotham concurred, but wrote separately to express his concern that Congress may not have appreciated the “egregious consequences” which sometimes result from the application of the mandatory minimum sentence. Here, a 10-year sentence was imposed upon a 21-year old first-time offender who served as a courier, and who was not a major participant in the drug transaction. U.S. v. Tannis, 942 F.2d 196 (3rd Cir. 1991).
4th Circuit reverses for failure to sentence under the Fair Sentencing Act. (245) Defendant was convicted of conspiring to possess 50 grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(A)(1) and 846. He was sentenced to 10 years’ imprisonment, the mandatory minimum at the time of the offense. On appeal, he argued that the district court should have applied the Fair Sentencing Act of 2010 (FSA), which raised the threshold amount for the mandatory minimum to 280 grams. The Fourth Circuit agreed that the FSA applied to defendant, despite the district court’s reliance on U.S. v. Bullard, 645 F.3d 237 (4th Cir.2011), which held that the FSA did not apply retroactively. Bullard was abrogated by the Supreme Court’s decision in Dorsey v. U.S., 132 S.Ct. 2321 (2012), which held that the FSA applied to all defendants sentenced after August 3, 2010. Because defendant was sentenced after the FSA was passed, and he did not possess 280 grams of crack, the court erred by sentencing him to the mandatory minimum. U.S. v. Allen, 716 F.3d 98 (4th Cir. 2013).
4th Circuit bases mandatory minimum on prior conviction obtained from Alford plea. (245) When defendant was sentenced, 21 U.S.C. § 841(b)(1)(A) required a mandatory minimum sentence of 10 years for distribution of 50 grams or more of cocaine. The statute increased the mandatory minimum to 20 years if the defendant had a “prior conviction for a felony drug offense.” Defendant had a prior Maryland drug conviction that was obtained from an Alford plea. He argued that under U.S. v. Alston, 611 F.3d 219 (4th Cir. 2010), it was error to impose a mandatory minimum sentence derived from an Alford plea. The Fourth Circuit affirmed, finding that Alston only barred a “prosecutor’s proffer of the factual basis for an Alford plea [from being] later … used … to identify the resulting conviction as an ACCA predicate.” Here, the district court simply relied on the conviction, not the underlying facts. Because defendant’s plea involved a drug offense that was punishable by imprisonment for more than one year, it qualified as a predicate under 21 U.S.C. § 841(b)(1)(A). U.S. v. Mouzone, 687 F.3d 207 (4th Cir. 2012).
4th Circuit, en banc, rejects use of hypothetical factors to make prior drug conviction a felony. (245) A minimum five-year sentence is required for possession of at least 100 kilograms of marijuana under 21 U.S.C. § 841(b)(1)(B)(vii), and this is increased to ten years if the offender has a prior felony drug conviction. The statute defines a “felony drug offense” as a drug-related offense that is punishable by imprisonment for more than one year. Here defendant’s prior drug offense was a Class I felony under North Carolina law, punishable by more than a year only if the state proved that (1) there were aggravating factors, and (2) the defendant had 14 or more criminal history points. The state did not satisfy either of these conditions for defendant, so the state judge was foreclosed from imposing an aggravated sentence. Accordingly, based on Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010), the Fourth Circuit, en banc, held that the North Carolina conviction did not qualify as a predicate felony conviction. Carachuri also barred the court from considering hypothetical aggravating factors when calculating defendant’s maximum punishment. U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).
4th Circuit finds insufficent evidence that prior convictions belonged to defendant. (245) The district court found that defendant was subject to statutorily enhanced life terms on two drug counts, pursuant to 21 U.S.C. § 841(b) (1)(A), because of her prior felony drug convictions in Maryland and Virginia. To prove the convictions, the prosecution introduced (1) a certified copy of a judgment order on the Virginia conviction, and (2) a copy of the criminal docket, charge summary, and complaint on the Maryland conviction. The Fourth Circuit ruled that this evidence was insufficient to establish that defendant had suffered the two prior convictions. The record contained a number of discrepancies with respect to the issue of identity. The names of the defendants used in the supporting documents and in this prosecution were inconsistent. Defendant’s last name was spelled in three different ways, and used two different middle names. The prosecution did not produce other compelling evidence of identity, such as fingerprint records or photographs. Finally, at sentencing, the court failed to ask defendant if she affirmed or denied that she had been previously convicted of the state drug offenses. U.S. v. Kellam, 568 F.3d 125 (4th Cir. 2009).
4th Circuit holds that starting point for departure was mandatory minimum rather than lower guideline range. (245) Defendant pled guilty to drug charges carrying a minimum sentence of 240 months under 21 U.S.C. § 841(b)(1)(A). His guideline range was only 135-168 months. The government moved for a downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. The Fourth Circuit held that the district court properly used 240 months as the starting point for its downward departure. Moreover, the court was permitted to depart below the guideline range of 135-168 months, Section 3553(e) places no limit on the court’s authority to impose a sentence below the statutory minimum sentence or the low-end of the guideline range. U.S. v. Johnson, 393 F.3d 466 (4th Cir. 2004).
4th Circuit finds no double jeopardy despite use of prior conviction as overt act in instant conspiracy. (245) Defendant was convicted of a crack cocaine conspiracy. The district court relied on a prior drug conviction to enhance his mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). Defendant argued that this violated double jeopardy because the prior offense was one of the overt acts supporting the instant conspiracy charge. The Fourth Circuit found no double jeopardy violation. A conspiracy is a distinct crime from the overt acts that support it. Thus, enhancing a conspiracy sentence because of a prior conviction, where one of the overt acts supporting the conspiracy resulted in the prior conviction, does not violate double jeopardy. U.S. v. Ambers, 85 F.3d 173 (4th Cir. 1996).
4th Circuit says aider and abettor is subject to same mandatory minimum as principal. (245) A person convicted of possession with intent to distribute more than five grams of cocaine base is subject to a mandatory minimum sentence of five years under 21 U.S.C. § 841. Defendant pled guilty to aiding and abetting a violation § 841(a)(1). The Fourth Circuit held that a person convicted of aiding and abetting a § 841 offense is subject to the same mandatory minimum as the principal. The federal aiding and abetting statute, 18 U.S.C. § 2(a), and guideline § 2X2.1 require aiders and abettors to be sentenced as if a principal. Together they indicate that Congress intended to treat principals and aiders and abettors equally. It was not necessary to decide whether a defendant convicted of aiding and abetting a continuing criminal enterprise under § 848 must be sentenced to the mandatory minimum imposed on principals. The federal kingpin statute is different because it is designed to punish those who supervise others. U.S. v. Pierson, 53 F.3d 62 (4th Cir. 1995).
4th Circuit vacates for failure to advise of mandatory minimum sentence. (245) Defendant pled guilty to distributing five grams of crack under 21 U.S.C. § 841(a)(1). The Fourth Circuit vacated because the district court failed to inform him during his plea colloquy of the five-year mandatory minimum sentence. The Rule 11 violation was not harmless error since defendant had no knowledge of the mandatory minimum at the time of his plea. Neither the plea agreement nor the indictment mentioned the five-year sentence. No one mentioned the mandatory minimum at the plea hearing. The record suggested that defense counsel was unaware of the statutory minimum. Although the PSR did mention the mandatory minimum, it was not prepared until at least two months after the plea had been accepted. Violations of Rule 11 cannot be cured by the presentence report. The possibility of the mandatory minimum was not too speculative for the district court, since defendant pled guilty to distributing five grams of cocaine. U.S. v. Goins, 51 F.3d 400 (4th Cir. 1995).
4th Circuit remands where defendant mistakenly agreed to mandatory minimum. (245) In his plea agreement, defendant stipulated that he distributed 85 kilos of marijuana in a conspiracy involving 117 kilos, and that another 79 kilos of marijuana from a different conspiracy could be treated as relevant conduct under the guidelines. Both the government and defendant mistakenly believed that the other 79 kilos could be treated as relevant conduct in applying the five-year mandatory minimum, so defendant acknowledged in the plea agreement that he was subject to a mandatory minimum five-year sentence. At sentencing, the parties realized that only the drugs involved in the offense of conviction could be considered. However, the district court applied the mandatory minimum because defendant agreed in the plea agreement that he foresaw that his conspiracy involved 117 kilograms. The Fourth Circuit disagreed and remanded for resentencing. Defendant did not implicitly admit his culpability for over 100 kilograms of marijuana when he acknowledged that he was subject to the mandatory minimum. U.S. v. Estrada, 42 F.3d 228 (4th Cir. 1994).
4th Circuit holds mandatory minimum for death resulting from drug distribution is sentence enhancement. (245) Defendant pled guilty to distributing drugs which resulted in the death of another, in violation of 21 U.S.C. § 841(a)(1). Section 841(b)(1)(C) provides that a person who violates § 841(a) shall be sentenced to a mandatory minimum 20 year term when death or serious bodily injury results. The 4th Circuit held that the mandatory minimum provision in § 841(b)(1)(C) is a sentencing enhancement provision, not an element of the offense. Therefore, the government needs only to prove facts supporting the enhancement by a preponderance of the evidence. The government is not required to prove that the victim’s death was the intended or foreseeable result of the distribution of drugs. U.S. v. Patterson, 38 F.3d 139 (4th Cir. 1994).
4th Circuit prohibits aggregating different drugs for mandatory minimum purposes. (245) The district court attributed to defendant 4.23 kilograms of powder cocaine and 9.24 grams of cocaine base, neither of which, individually, met the minimum drug amount of 21 U.S.C. § 841(b)(1)(A). However, the court then used the drug conversion table in § 2D1.1, to aggregate the quantities to reach a total of 52 grams of cocaine base. Defendant was sentenced to a mandatory minimum life sentence under § 841(b)(1)(A). The 4th Circuit, relying on U.S. v. Irvin, 2 F.3d 72 (4th Cir. 1993), held that a court may not, under § 841, aggregate quantities of different controlled substances for mandatory minimum purposes. Section 841 does not provide a mechanism for aggregating different types of drugs. U.S. v. Harris, 27 F.3d 111 (4th Cir. 1994).
4th Circuit uses “reasonable foreseeability” to compute drug amounts for mandatory minimum sentence. (245) The 4th Circuit held that a court must determine the quantity of narcotics reasonably foreseeable to each individual conspirator before applying the mandatory minimum sentencing provisions of 21 U.S.C. §841(b). The legislative history of section 846 led the court to conclude that a sentencing court should assess the quantity of narcotics attributable to each conspirator by determining what was reasonably foreseeable. Here, the district court erred in failing to determine the quantity of narcotics reasonably foreseeable to defendants before imposing the mandatory minimum sentences. U.S. v. Irvin, 2 F.3d 72 (4th Cir. 1993).
4th Circuit says that 10 gram threshold for minimum sentence was met by 72 grams of 86 percent pure methamphetamine. (245) A five year mandatory minimum sentence is applicable under 21 U.S.C. section 841(b)(1)(B)(viii) if the offense involved 10 grams or more of methamphetamine or 100 grams or more of a mixture containing methamphetamine. Defendant argued that the “10 grams” referred to pure methamphetamine, and therefore his possession of 72 grams of methamphetamine of between 86 and 91 percent purity did not qualify him for the minimum sentence. The 4th Circuit, following the 1st Circuit’s decision in U.S. v. Stoner, 927 F.2d 45 (1st Cir. 1991), rejected this argument. Under defendant’s interpretation, a person with 99 grams of 99 percent pure methamphetamine would not receive the mandatory minimum sentence while another with merely 10 grams of pure methamphetamine would. U.S. v. Rusher, 966 F.2d 868 (4th Cir. 1992).
4th Circuit holds that guideline range need not be disclosed to defendant prior to accepting plea. (245) The 4th Circuit rejected defendant’s claim that the district court violated Fed. R. Crim. P. 11(c)(1) by failing to notify him of any mandatory minimum penalty prior to accepting his guilty plea. Neither statute under which defendant was convicted contained a mandatory minimum sentence. The sentencing range dictated by the sentencing guidelines did not set a mandatory minimum penalty for the offense within the meaning of Rule 11(c)(1), since the guidelines provide for departures. Normally, at the time of a plea hearing, there has been no presentence report prepared, and the court cannot inform the defendant of the sentencing range under the guidelines. Thus, a guideline range need not be disclosed before a plea is accepted. U.S. v. DeFusco, 949 F.2d 114 (4th Cir. Nov. 1991).
4th Circuit holds that mandatory minimum provisions of drug statute require separate criminal episodes. (245) Defendant was convicted of possession with intent to distribute crack cocaine. He was sentenced to life imprisonment without parole under 21 U.S.C. 841(b)(1)(A)(iii), which provides for a mandatory term of life imprisonment without release for certain drug offenders with two or more prior convictions for a felony drug offense. Defendant argued that his two prior convictions should count as one since they arose out of a single criminal episode. The 4th Circuit agreed, finding that the language, “prior” or “previous convictions,” in 841(b) means separate criminal episodes, not separate convictions arising out of a single transaction. U.S. v. Blackwood, 913 F.2d 139 (4th Cir. 1990).
4th Circuit rules mandatory 15-year term for felon in possession of firearm is not reviewable and does not violate 8th Amendment. (245) The 4th Circuit held that a 15 year mandatory prison term for a felon in possession of a firearm is not subject to a reasonableness review under 18 U.S.C. § 3742(a)(4). The court stated that the Congressional decision as to the proper punishment was not subject to judicial review, because the court was allowed no discretion to impose any other sentence. The Court also rejected, without discussion, a challenge under the 8th Amendment. U.S. v. Crittendon, 883 F.2d 326 (4th Cir. 1989).
5th Circuit says relevant conduct need not be proven beyond a reasonable doubt, despite Alleyne. (245) Defendant pled guilty to possession with intent to distribute 211 kilograms of marijuana. The district court found him responsible for an additional 2,648.8 kilograms as relevant conduct. Violations that involve 100 kilograms or more of marijuana require a mandatory minimum of five years under § 841(b)(1)(B)(vii), and 1000 kilograms or more requires a mandatory minimum sentence of 10 years under § 841(b)(1)(A)(vii). Defendant argued that the district court’s finding that he was responsible for 2,860.8 kilograms of marijuana meant his sentence was based on the statutory mandatory minimum of 10 years, and therefore the drug quantity determination should have been made by the jury beyond a reasonable doubt. The Fifth Circuit disagreed. The Alleyne opinion did not imply that the traditional fact-finding on relevant conduct, to the extent it increases the discretionary sentencing range under the guidelines, must now be made by jurors. Nothing in the record suggested that defendant’s sentence was the result of the probation office or the district court’s concluding that a 10-year mandatory minimum applied. Guideline ranges based on relevant conduct and other factors will often extend far above a statutory minimum. U.S. v. Hinojosa, 749 F.3d 407 (5th Cir. 2014).
5th Circuit rules Attorney General memo provided no relief from mandatory minimum. (245) An August 12, 2013 memorandum issued by the Attorney General provided that prosecutors should decline to charge the quantity of drugs necessary to trigger a mandatory minimum sentence if a defendant met certain criteria. Defendant was sentenced to a mandatory minimum 120 months based on his conviction for possession with intent to distribute 50 grams of methamphetamine. Defendant argued on appeal that he should be a beneficiary of the Attorney General’s new policy and receive a sentence commensurate with his culpability. The Fifth Circuit held that the memo did not offer defendant any sentencing relief. Even assuming that defendant met the requirements in the memo, it was issued after defendant was charged and convicted. Additionally, the August 12 memo expressly noted that the “policy set forth herein is not intended to create or confer any rights, privileges, or benefits in any matter, case, or proceeding.” U.S. v. Barnes, 730 F.3d 456 (5th Cir. 2013).
5th Circuit says failure to apply FSA in crack case was harmless because it did not affect sentence. (245) Defendant was sentenced before the Supreme Court ruled that the Fair Sentencing Act (FSA) applies to defendants (like this defendant) whose crime preceded August 3, 2010, but who were sentenced after that date. See Dorsey v. U.S., 132 S.Ct. 2321 (2012). Defendant argued on appeal that his sentence was unreasonable because the court did not use the FSA’s new threshold for applying a mandatory minimum sentence. The Fifth Circuit agreed that the FSA applied but found the error was harmless because it did not lengthen defendant’s sentence. The PSR used the FSA-amended 2011 version of the guidelines to produce a recommended guideline range of 120-150 months. The court varied upward because it concluded that 150 months was insufficient, not because it relied on the incorrect mandatory minimum. U.S. v. Kinchen, 729 F.3d 466 (5th Cir., 2013).
5th Circuit says resentencing after retroactive amendment is not Dorsey “sentencing.” (245) In 2004, defendant pled guilty to a drug offense involving over 50 grams of cocaine base. After Amendment 706, his crack sentence was reduced to 121 months. After Amendment 750 further reduced the crack guidelines in conformity with the Fair Sentencing Act (FSA) of 2010, defendant filed another 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. The district court reduced defendant’s sentence from 121 months to 120 months, finding that it could not further reduce the sentence due to the 120-month mandatory minimum in effect at the time of his original sentencing. In Dorsey v. U.S., 132 S.Ct. 2321 (2012), the Supreme Court held that a defendant who committed an offense prior to the effective date of the FSA, but was sentenced after its effective date, was entitled to the benefits of the FSA. Defendant argued that his § 3582(c)(2) modification hearing was a “sentencing” that occurred after the effective date of the FSA. The Fifth Circuit disagreed. Nothing in Dorsey changed Supreme Court and Fifth Circuit rulings that a § 3582(c)(2) sentence reduction is not a plenary re-sentencing. U.S. v. Kelly, 716 F.3d 180 (5th Cir. 2013).
5th Circuit rejects challenges to drug sentence at top of guideline range. (245) Defendant was convicted of drug charges, and sentenced to 235 months. He challenged an increase under 21 U.S.C. § 841(b)(1)(A), which requires a mandatory minimum 20 years if the defendant has a prior conviction for a felony drug offense. The Fifth Circuit found no error, because the district court did not actually apply § 841(b)(1)(A). Although the government had proven the facts necessary for the enhancement, the district court did not apply it “out of an abundance of caution.” Instead, the court sentenced defendant to 235 months, less than the 20-year minimum under § 841(b)(1)(A). The 235-month sentence was at the top of the guideline range of 188-235 months. Within-guidelines sentences enjoy a presumption of reasonableness. The fact that co-defendant Guerra received a three-year sentence did not make defendant’s sentence unreasonable. Guerra cooperated with DEA agents and accepted responsibility by pleading guilty. U.S. v. Ochoa, 667 F.3d 643 (5th Cir. 2012).
5th Circuit uses earlier conviction from same conspiracy to enhance mandatory minimum. (245) Defendant was convicted of conspiracy to sell crack. Under 21 U.S.C. § 841, a defendant must be sentenced to a minimum of 10 years if the case involved 50 grams or more of cocaine; and 20 years if the defendant has a prior drug conviction. Defendant was convicted in 2001 in state court of felony drug possession. He argued that this prior conviction was part of the same conspiracy as the current offense and therefore could not be used to enhance his sentence. The Fifth Circuit rejected the argument, ruling that an earlier conviction from the same conspiracy can be used to increase a mandatory minimum sentence. The court reasoned that a defendant should not benefit from continuing a criminal enterprise even after he is convicted for the same enterprise. U.S. v. Moody, 564 F.3d 754 (5th Cir. 2009).
5th Circuit reaffirms that jury drug-quantity finding triggers mandatory minimum. (245) At defendant’s trial on methamphetamine-trafficking charges, the jury found that his offense involved a sufficient quantity of the drug to trigger a mandatory minimum sentence under 21 U.S.C. § 841(b) (1)(A). The district court sentenced defendant to a mandatory minimum. Relying on U.S. v. Becerra, 155 F.3d 740 (5th Cir. 1998), defendant argued that drug quantity and type are not elements of a § 841 violation, and therefore that the court could disregard the jury’s finding and make its own determination of the quantity of methamphetamine involved in defendant’s offense. In an order denying a petition for rehearing, the Fifth Circuit held that after Booker, the jury’s findings as to the type and quantity of drugs are not “gratuitous” and that a court may not disregard a jury finding that triggers a mandatory minimum sentence under § 841(b). To the extent that Becerra held otherwise, it was abrogated by Booker. U.S. v. Farias, 481 F.3d 289 (5th Cir. 2007).
5th Circuit finds any Booker error was harmless where defendant was sentenced to mandatory minimum. (245) Defendant objected to the district court’s adoption of the PSR, which used facts not found by a jury beyond a reasonable doubt in calculating his sentence. Because defendant preserved his Booker challenge, the Fifth Circuit reviewed for harmless error. The panel ruled that any error was harmless, because the district court would have sentenced defendant to the same 10 years’ imprisonment under 21 U.S.C. § 841(b)(1)(A), regardless of whether it considered the additional drug quantities alleged in the PSR. Section 841(b)(1)(A) mandates a minimum sentence of ten years’ imprisonment for a conviction under § 841(a) involving 500 grams or more of a mixture or substance containing methamphetamine. Defendant was convicted of such an offense. The district court could not have sentenced him to anything less than 10 years’ in prison. U.S. v. Treft, 447 F.3d 421 (5th Cir. 2006).
5th Circuit holds that court had no authority to depart from statutory minimum sentence. (245) The district court found that defendant was responsible for a quantity of cocaine in excess of the 50 grams required to trigger a 10-year statutory minimum sentence, and that no legal basis existed for a downward departure. The court nonetheless refused to impose that sentence, citing U.S.S.G. § 5K2.0 and Koon v. U.S., 518 F.3d 81 (1996). The Fifth Circuit joined all other circuits that have addressed this issue to conclude that the procedures set forth in 18 U.S.C. § 3553(e) and § 3553(f) are the exclusive routes to depart below a statutory minimum sentence. Thus, a district court may impose a sentence below a statutory minimum for a drug crime only if (1) the government makes a motion pursuant to § 3553(e) asserting the defendant’s substantial assistance to the government; or (2) the defendant meets the “safety valve” criteria set forth in § 3553(f). Here, the government did not move for a substantial assistance departure, and defendant did not challenge the constitutionality of the government’s failure to so move. Moreover, the safety valve provision was inapplicable here because defendant was convicted of under 18 U.S.C. § 860, which is not listed under the safety valve provision. U.S. v. Phillips, 382 F.3d 489 (5th Cir. 2004).
5th Circuit rejects challenge to use of prior conviction where defendant did not reveal basis for challenge. (245) Defendant argued that the district court erred by enhancing his statutory maximum sentence from 20 to 30 years based on his stipulation to a 1990 felony drug conviction because the court misinformed him that without a stipulation, proof of the prior conviction would be placed before the jury. He also argued that the district court failed to comply with the requirements of 21 U.S.C. § 851(b) by asking him to affirm of deny the prior conviction before he was convicted by the jury. Although the district court did not strictly comply with § 851(b), the Fifth Circuit found that any error was harmless. Defendant did not comply with the procedures of § 851(c) to challenge the 1990 conviction. Moreover, although he did not wish to stipulate to the conviction, he did not reveal to the court the basis for any challenge to his prior conviction. See U.S. v. Garcia, 954 F.3d 273 (5th Cir. 1992). U.S. v. Majors, 328 F.3d 791 (5th Cir. 2003).
5th Circuit holds that conviction becomes “final” when time for seeking direct appellate review has elapsed. (245) The district court enhanced defendant’s sentence under 21 U.S.C. § 841(b)(1)(A) based on his prior Texas state court deferred adjudication for aggravated possession of marijuana. Defendant argued that the deferred adjudication was not “final” for enhancement purposes because after revocation of his deferred adjudication, he could file a motion for new trial, which if granted, would undo the state court conviction, and if the motion was denied, he would have the right to appeal the denial. The Fifth Circuit held that a conviction becomes final when the time for seeking direct appellate review has elapsed. Under Texas law, a defendant must file a notice of appeal “within 30 days after the day sentence is imposed or suspended in open court.” A defendant whose deferred adjudication is revoked may appeal only from the revocation. The underlying adjudication may be appealed only at the time probation is given. Thus, the proper analysis of whether defendant’s prior state conviction had become “final” should focus not on whether his deferred adjudication had been revoked and a formal adjudication of guilt entered, but on whether the time for appealing the entry of deferred adjudication had passed. Thirty days after the Texas court imposed probation, his conviction for the state offense became “final” for purposes of the § 841(b)(1)(A) enhancement. U.S. v. Vasquez, 298 F.3d 354 (5th Cir. 2002).
5th Circuit holds three prior offenses were “distinct” even though they occurred within minutes of each other. (245) Defendant was sentenced to mandatory life under the recidivist provisions of 21 U.S.C. § 841(b)(1)(A). All three of his prior offenses occurred within minutes of each other, but the Fifth Circuit held that they were “distinct” because they involved sales of drugs to different individuals and each transaction was complete in and of itself. Moreover, they could be considered to be “prior convictions” even though the offenses occurred after the present conspiracy began, because conspiracy is a continuing offense. Accordingly, the Fifth Circuit held that defendant had two prior felony convictions, requiring a mandatory life sentence. U.S. v. Green, 293 F.3d 886 (5th Cir. 2002).
5th Circuit holds that lack of compliance with § 851 notice requirements cannot be overcome by other filings. (245) Defendant argued that the district court erred in enhancing his sentence above the statutory maximum of one year, under 21 U.S.C. § 844(a), because the government did not file a § 851 notice of intent to seek an enhanced sentence on the basis of a prior conviction. The government argued that the indictment, along with other filings and statements by the defendant, satisfied the requirements of § 851 because it contained the correct name of defendant’s prior offense, its date, venue, and case number, and was served on the defendant. The Fifth Circuit held that the lack of compliance with § 851’s notice requirements could not be overcome by the other filings. Although the information in the indictment and PSR might inform defendant of the government’s knowledge of his prior conviction, it did not accomplish the main purpose of § 851, which is to inform the defendant that the government intends to seek a sentencing enhancement based on that conviction. Defendant’s lack of surprise and admission of his prior conviction could not overcome the government’s failure to file the information required by § 851. U.S. v. Dodson, 288 F.3d 153 (5th Cir. 2002).
5th Circuit holds that § 851 rights may be waived or forfeited by defendant. (245) The government failed to file a notice under 21 U.S.C. § 851 of its intent to seek an enhanced sentence based on defendant’s prior convictions. Defendant argued that the requirements in § 851 are not waivable or subject to forfeiture as a result of his failure to object. The Fifth Circuit disagreed, holding that § 851 is subject to both waiver and forfeiture. Waiver is presumptively available absent some sort of express statement otherwise. There is no indication in § 851 that it was intended to be an absolute, nonwaivable requirement. The rule in § 851 does not affect any fundamental constitutional right, which might weigh against allowing waiver of its requirements. There also was no reason why the provisions of § 851 should not be subject to forfeiture. Here, by agreeing that the appropriate sentencing range was 15 days to two years, defendant necessarily agreed that his prior conviction would be applied to enhance his sentence. Thus, through the actions of his counsel, defendant waived his right to contest the lack of information under § 851. Moreover, he also forfeited his right to complain of this error by failing to object. Although the failure to file the information was plain error, it did not seriously affect the fairness and integrity of the judicial proceedings. Defendant agreed that his prior conviction was valid, had notice that the government was aware of his criminal history, and agreed to the sentencing range that resulted from the application of the enhancement. U.S. v. Dodson, 288 F.3d 153 (5th Cir. 2002).
5th Circuit finds court incorrectly believed that safety valve barred departure below statutory minimum. (245) The district court determined that defendant met the criteria for a two-level safety valve reduction. After all the sentencing calculations were computed, defendant had a guideline range of 135 to 168 months. The court found that defendant was entitled to a downward departure to the statutory minimum sentence of 120 months based on, among other things, his extraordinary family responsibilities. Finally, the court stated that it believed that the safety valve prevented it from departing below the statutory minimum sentence, and that, but for the prohibition, it would have granted a departure to 108 months. The Fifth Circuit held that the district court erred in believing that the safety valve barred it from sentencing defendant below the 120-month statutory minimum sentence. The guidelines do not state that the statutory minimum sentence re-enters the calculation after the two-level reduction under the safety valve provisions has been granted. Rather, the defendant’s entire sentence is exempt from the statutory minimum sentence. U.S. v. Lopez, 264 F.3d 527 (5th Cir. 2001).
5th Circuit says mandatory minimum sentence may be based on non-jury drug finding. (245) In U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000) [see summary below], the Fifth Circuit held that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), overruled circuit precedent that treated drug quantity as a sentencing factor rather than as an element of the offense under § 841. However, Apprendi only applies to cases in which a sentence exceeds the statutory maximum that would apply without reference to drug quantity under § 841(b)(1)(C). Defendant received a mandatory minimum sentence of 20 years under § 841(a)(1)(A) based on the district court’s finding, by a preponderance of the evidence, that the offense involved more than 50 grams of cocaine base. Because 20 years does not exceed the statutory maximum sentence of 30 years under § 841(b)(1)(C), Apprendi did not appear to invalidate defendant’s sentence. However, defendant argued that because § 841(b) (1)(C) applies in the absence of an allegation and jury finding of drug quantity, the district court could not impose the mandatory minimum sentence of 20 years under § 841(b)(1) (A) based on a non-jury finding of drug quantity. The Fifth Circuit disagreed, ruling that defendant’s mandatory minimum sentence of 20 years under § 841(b)(1)(A) was proper because it did not exceed the 30-year maximum under § 841(b)(1) (C). U.S. v. Keith, 230 F.3d 784 (5th Cir. 2000).
5th Circuit bars defendant from raising issue not raised on initial appeal. (245) The district court overruled defendant’s objections to the PSR, including challenges to drug quantity, and imposed a life sentence under the federal “three strikes” law, 21 U.S.C. § 841(b)(1)(a). On appeal, defendant successfully challenged the application of the three strikes law. At resentencing, the district court refused to revisit drug quantity, ruling that the only issue on remand was to resentence defendant without application of the three strikes law. Defendant argued that because his first appeal was from a life sentence under the three strikes law, the issue of drug quantity was irrelevant and thus he had no incentive to raise it. The Fifth Circuit, relying on U.S. v. Marmolejo, 139 F.3d 528 (5th Cir. 1998), held that defendant was precluded from raising the drug quantity issue on remand because he had the opportunity to raise the issue in his initial appeal, but declined to do so. A district court should only address “issues arising out of the correction of the sentence ordered by [the appellate] court.” Moreover, since defendant raised the issue of drug quantity at his original sentencing, and simply failed to pursue the issue on appeal, he could not claim that the drug quantity issue was irrelevant. A defendant cannot know which appellate argument might be successful; therefore each contested issue must be appealed. U.S. v. Hass, 199 F.3d 749 (5th Cir. 1999).
5th Circuit rules that felony drug offense includes state drug possession offenses that are felonies. (245) Defendant pled guilty to a cocaine base conspiracy. The district court relied on a prior Texas conviction for cocaine possession to enhance his sentence under § 841(b)(1)(A) to a mandatory minimum term of 20 years. Defendant argued that the term “felony drug offense” in § 841(b)(1)(A) should be defined the same as a “controlled substance offense” under § 4B1.2(2) of the guidelines, which requires an intent to manufacture, import, export or distribute the drug. The Fifth Circuit rejected the argument, noting that 21 U.S.C. § 802(44) defines a felony drug offense as an offense punishable by imprisonment for more than one year under any law that prohibits or restricts conduct relating to narcotics. Thus, a felony drug offense includes any criminal conduct relating to narcotics, including simple possession, that a state has made a felony. U.S. v. Sandle, 123 F.3d 809 (5th Cir. 1997).
5th Circuit holds indictment requirement in § 851 refers to current offense, not prior convictions. (245) Defendant was convicted of drug and firearms charges. He challenged his mandatory life sentence under 21 U.S.C. § 851(a)(2), claiming that the prosecution by indictment requirement in § 851(a)(2) applies to the prior offenses. The Fifth Circuit disagreed, holding that the indictment requirement applies to the current offense rather than the prior offense. The case relied upon by defendant, U.S. v. Collado, 106 F.3d 1097 (2d Cir. 1997) was overruled by the Second Circuit in U.S. v. Ortiz, 143 F.3d 728 (2d Cir. 1998). The Second Circuit revised its conclusion in Collado because the government provided new information—at the time § 851(a)(2) was formulated in 1970, federal felony narcotics violations were prosecutable without indictment in the Virgin Islands and the Panama Canal Zone. U.S. v. Lampton, 158 F.3d 251 (5th Cir. 1998).
5th Circuit says government proved defendant was the person convicted of two prior felonies. (245) Defendant was convicted of drug charges. The district court used defendant’s two prior felony convictions in state court to enhance his sentence under 21 U.S.C. § 851(c)(1). The Fifth Circuit held that the government established beyond a reasonable doubt that the two prior state convictions used to enhance defendant’s sentence were in fact his convictions and not those of someone else. The government produced: (1) certified copies of defendant’s two state arrest registers, corresponding to his two state convictions; (2) fingerprint exemplars from both state arrest registers; (3) certified copies of both state convictions; and (4) defendant’s fingerprint exemplars from the current offense maintained by the U.S. Marshal’s Service. The prosecution also submitted the expert testimony of a police fingerprint expert who testified that the arrestee’s fingerprints on the two state arrest registers matched defendant’s federal fingerprint card. U.S. v. Lampton, 158 F.3d 251 (5th Cir. 1998).
5th Circuit uses state classification of offenses for multiple-offender enhancement purposes. (245) Defendant was convicted of cocaine conspiracy charges. The government filed a § 851 information to sentence him as a multiple offender based on a prior state conviction for possession of “crack” cocaine. Defendant argued that because his conviction for possession of crack would constitute a misdemeanor in some other states, the government could not enhance his sentence because he would be treated differently from other defendants similarly situated. The Fifth Circuit held that defendant was properly treated as a multiple offender. The Circuit previously rejected this equal protection challenge in U.S. v. Kubosh, 63 F.3d 404 (5th Cir. 1995). Kubosh noted that in enacting the multiple-offender provisions of the narcotics law, Congress was well aware that different states classify similar crimes differently. Congress’s deference to the states in this matter was not irrational. Although Kubosh was vacated by the Supreme Court on other grounds, the appellate court later readopted all of the reasoning of Kubosh not pertinent to the Supreme Court decision, including the refutation of the equal protection argument. U.S. v. Millsaps, 157 F.3d 989 (5th Cir. 1998).
5th Circuit reverses increase where prior convictions were not final at time of offense. (245) Defendant was given a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) based on two prior felony drug convictions. The Fifth Circuit reversed, because the prior convictions did not become final before defendant committed the current drug offense. For § 841(b) purposes, a conviction is not final until the time for seeking direct appellate review has elapsed. On August 26, 1996, defendant was sentenced in Texas for two counts of felony possession of a controlled substance. The time for direct appellate review of these convictions did not expire until September 26, 1996 and thus did not become “final” for enhancement purposes until that time. The indictment said the present drug conspiracy ended on September 11, 1996. Although defendant may have continued to engage in drug-related conspiratorial activity until his arrest in October, this was not relevant to the § 841(b) enhancement. The only relevant conduct for § 841(b) purposes occurred on or before September 11, 1996, the date the offense of conviction ended. U.S. v. Hass, 150 F.3d 443 (5th Cir. 1998).
5th Circuit rules defendant had adequate notice of § 841(b) enhancement. (245) Defendants argued that the government gave them inadequate notice of its intention to seek an enhanced penalty under 21 U.S.C. § 841(b). The Fifth Circuit disagreed. Each was notified in his PSR, made available seven weeks before sentencing, that he was subject to an enhanced prison term of ten years to life because the conspiracy involved more than 1000 kilograms of marijuana, and that the government would be filing a notice of enhanced penalties. A month before sentencing, the government gave each formal written notice. There was no due process violation. U.S. v. Cortinas, 142 F.3d 242 (5th Cir. 1998).
5th Circuit holds that harvested marijuana stalks were plants under statute. (245) The district court found defendant responsible for 1187 marijuana plants, 288 of which were in post-harvest form, i.e. they were not live plants but dry, dead husks. The Fifth Circuit held that harvested marijuana stalks constitute marijuana plants under 21 U.S.C. § 841(b). The court rejected defendant’s claim that the word “plants,” as used in § 841(b), only means plants alive at the time of the seizure. Under the plain language of the statute, the only requirement is that the offense involve 1000 or more marijuana plants. Congress did not distinguish between harvested and unharvested, live or dead plants, and no authority exists within the plain language of the statute for creating such classifications. For purposes of applying the mandatory sentences in § 841(b), it is irrelevant whether the plants involved in the offense were alive, cut, harvested or processed when seized, provided that there were alive sometime during the commission of the offense. U.S. v. Fitch, 137 F.3d 277 (5th Cir. 1998).
5th Circuit applies mandatory minimum based on drug quantities beyond those stipulated. (245) Defendant pled guilty to a methamphetamine conspiracy. Although he stipulated to possessing 93.7 grams of a methamphetamine mixture, the Fifth Circuit upheld the court’s finding that he possessed 100 grams or more of a methamphetamine mixture and thus was subject to a mandatory minimum 120-month sentence. A defendant participating in a drug conspiracy is accountable for the foreseeable quantity of drugs attributable to the conspiracy. A co-conspirator testified that defendant traveled with her on three or four occasions where she purchased one to two ounces (28 to 56 grams) of methamphetamine. She gave defendant an eighth of an ounce each trip for accompanying her. She also testified that she believed defendant was selling the methamphetamine he obtained from her as well as from others because he was selling more than she gave him. The district court’s finding of drug quantity was not clearly erroneous. U.S. v. Mankins, 135 F.3d 946 (5th Cir. 1998).
5th Circuit holds that using a communications facility is a felony drug offense. (245) Defendant pled guilty to a methamphetamine conspiracy. Under § 841(b)(1)(B) (viii), the mandatory term of imprisonment increases if the defendant has a prior conviction for a felony drug offense. The Fifth Circuit held that defendant’s prior conviction for using a communications facility to facilitate a drug offense under 21 U.S.C. § 843(b) was a felony drug offense for enhancement purposes. A conviction under § 843(b) requires proof that a defendant knowingly used a communications facility to facilitate the commission of a drug offense. Thus, it requires proof of the underlying drug offense even though it is not separately charged. As an element of the offense, the statute can clearly be viewed as prohibiting these drug related acts. Section 843(b) thus falls within the definition of a felony drug offense because it prohibits or restricts conduct relating to unlawful controlled substances. U.S. v. Mankins, 135 F.3d 946 (5th Cir. 1998).
5th Circuit upholds finding of drug quantity based on estimate. (245) Under 21 U.S.C. § 841(b)(1)(A)(viii), a defendant with two or more prior felony drug convictions who possesses or manufactures more than 100 grams of methamphetamine must be sentenced to life in prison. The Fifth Circuit upheld the district court’s reliance on a DEA agent’s testimony to find defendant responsible for more than 100 grams of methamphetamine. The DEA agent estimated that the methamphetamine he found at defendant’s residence was over 500 grams. Although the DEA agent did not actually weigh it, he relied on an equation to calculate the weight, based on the size of the containers found and the percentage of the methamphetamine in samples taken. U.S. v. Dickey, 102 F.3d 157 (5th Cir. 1996).
5th Circuit vacates plea to one count for failure to advise defendant of mandatory minimum. (245) Defendant pled guilty to drug, firearms and money laundering charges. At the plea hearing, the district court told defendant that he faced a mandatory minimum sentence of five years based on four kilograms of cocaine. However, at sentencing, the judge found defendant responsible for at least five kilograms of cocaine, which triggered a mandatory minimum sentence of ten years for one of the drug counts. The Fifth Circuit held that the court’s failure to inform defendant of the correct mandatory minimum on one count required his plea to that count to be vacated. However, the error did not require the plea to the other drug count to be vacated, because the district court complied with the Rule 11 procedures with respect to that count. U.S. v. Still, 102 F.3d 118 (5th Cir. 1996).
5th Circuit rejects enhanced sentence where government withdrew notice of priors. (245) In refusing to reduce defendant’s sentence based on a retroactive guideline amendment, the district court noted that defendant would still face a 20‑year minimum sentence under § 841(b)(1)(A). That section provides for a minimum sentence of 10 years for first offenders, and 20 years for any person with a prior drug conviction. To prove a prior conviction, the government must file, before trial or before entry of a guilty plea, an information alleging the prior convictions. Failure to file an information prevents a court from enhancing a sentence. The Fifth Circuit held that defendant was not subject to the 20‑year sentence, because the government withdrew its notice of intent to prove the priors as part of the plea agreement. This consideration of the prior convictions under § 841(b)(1)(A). U.S. v. Levay, 76 F.3d 671 (5th Cir. 1996).
5th Circuit refuses retroactive application of LSD amendment where statutory minimum was controlling. (245) Defendant moved to reduce his sentence under 18 U.S.C. 3582(c)(2) based on the retroactive 1993 amendment to the LSD guideline in § 2D1.1(c). Before the amendment, the full weight of the carrier medium was considered, and defendant had a guideline range of 70-87 months. Under the new guideline, defendant would have had a guideline range of 24-30 months. However, the Fifth Circuit is one of the circuits that have held that the guideline amendment did not override the Supreme Court’s holding in Chapman v. U.S., 500 U.S. 453 (1991) that the weight of the carrier medium must be included in determining the statutory mandatory minimum. Accordingly, the Fifth Circuit upheld the district court’s refusal to reduce defendant’s sentence because he was still subject to a 60-month statutory minimum under 21 U.S.C. § 841(b)(1). U.S. v. Whitebird, 55 F.3d 1007 (5th Cir. 1995).
5th Circuit says failure to make foreseeability finding was not plain error. (245) The PSR concluded that a 10-year mandatory minimum for offenses involving more than 100 grams of heroin applied to defendant, and she did not object. Without making findings regarding either the amount of heroin involved in the conspiracy or the amount attributable to defendant, the district court adopted the PSR and sentenced her to 10 years. The Fifth Circuit held that the court’s failure to make such findings was not plain error. Rule 32(c)(3)(D) only requires findings as to controverted matters, and defendant waived her rights. The appellate court agreed that guideline standards for determining the quantity of drugs in a conspiracy apply when deciding whether to impose a statutory minimum required by § 841(b). But the district court’s failure to anticipate this holding was not plain error. U.S. v. Ruiz, 43 F.3d 985 (5th Cir. 1995), overruled on other grounds by U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000).
5th Circuit upholds mandatory minimum based on PSR and defendant’s failure to object. (245) The PSR linked defendant directly to the sale of 0.632 grams of heroin, and concluded that she was subject to a mandatory minimum of 10 years because other members of the conspiracy sold well in excess of 100 grams of heroin. Although defendant filed an objection to the PSR relating to her criminal history, she did not object to the 10-year statutory minimum. The Fifth Circuit found that the facts recited in the PSR, and defendant’s lack of objection to the 10-year minimum, provided a sufficient basis for the district court’s conclusion that defendant’s offense involved at least 100 grams of heroin. Moreover, there was not plain error, because even if defendant’s offense had only involved .632 grams of heroin, she would have been subject to a maximum sentence of 30 years, and her 10-year sentence was well below this. U.S. v. Ruiz, 43 F.3d 985 (5th Cir. 1995), overruled on other grounds by U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000).
5th Circuit holds that mandatory minimum in § 841 overrides LSD amendment. (245) Defendant asked the district court to reduce his sentence in light of an amendment to guideline § 2D1.1(c), which altered the method for determining the quantity of LSD to be used to calculate a defendant’s guideline sentence. The 5th Circuit held that the mandatory minimum in 21 U.S.C. § 841 overrode the amendment to § 2D1.1. The background commentary to the amendment states that the new approach for calculating the amount of LSD “does not override the applicability of ‘mixture or substance’ for the purpose of applying any mandatory minimum sentence.” A common sense interpretation of this policy statement is that the mandatory minimum of § 841, calculated according to Chapman v. U.S., 500 U.S. 453 (1991), overrides the retroactive application of the new guideline. U.S. v. Pardue, 36 F.3d 429 (5th Cir. 1994).
5th Circuit uses earlier conspiracy conviction to enhance sentence for substantive drug offense. (245) The district court relied on a prior federal conspiracy conviction to enhance defendant’s sentence to a 20-year mandatory minimum under 21 U.S.C. § 841(b)(1)(a). Defendant complained that the government initially prosecuted him for the conspiracy offense for the purpose of enhancing his sentence on the substantive offense. The 5th Circuit rejected defendant’s complaint since the two offenses were based on different transactions. The conspiracy offense was related to defendant’s involvement in transporting five kilograms of cocaine in February 1991. The instant offense involved defendant’s participation in transporting cocaine from Houston to New York in January 1991. U.S. v. Brown, 29 F.3d 953 (5th Cir. 1994).
5th Circuit suggests sentence cannot be enhanced for prior conviction if defendant has been in jail since it became final. (245) Defendant was convicted of drug offenses under 21 U.S.C. § 841 and § 960, which provide for a mandatory minimum sentence if the offense was committed after one or more prior felony drug convictions had become final. Defendant’s only prior felony drug conviction was a marijuana possession offense for which he was arrested June 15, 1990, and remained incarcerated until his conviction on the present charges. Defendant argued that because he was incarcerated from the time of his June 15, 1990 arrest onward, he was unable to commit an offense after his prior conviction became final, and therefore his state conviction could not be used to enhance his sentence. Since remand was required on other grounds, the 5th Circuit did not decide this issue, but suggested that it was persuaded by defendant’s argument. The purpose of the recidivist provisions of these statutes is to deter future criminal conduct. It seems doubtful that any deterrent purpose would be served by enhancing defendant’s sentence without evidence that he engaged in some conduct in furtherance of the conspiracy while incarcerated after his state conviction became final. U.S. v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).
5th Circuit does not require pretrial notice of intent to enhance for drug quantity. (245) Under 21 U.S.C. § 841(b)(1), the sentencing range depends on the amount of drugs: (1) ten years to life for five or more kilograms of cocaine, (2) five to forty years for between 500 grams and five kilograms, and (3) zero to 20 years for less than 500 grams. The district court found the applicable range to be ten years to life because over five kilograms were involved. Defendant contended that his sentence was unlawful because the government failed to give notice before trial under 21 U.S.C. § 851 of its intent to seek an “enhancement” based on the quantity of drugs. The 5th Circuit rejected this argument. Defendant received sufficient notice that the government intended to seek a sentence based on quantity when the government filed a “Penalty Enhancement Information” after his trial but before sentencing. U.S. v. Thomas, 12 F.3d 1350 (5th Cir. 1994).
5th Circuit says mandatory minimum may not be avoided by failing to allege quantity in indictment. (245) The 5th Circuit ruled that because the statutory minimum sentences in 21 U.S.C. § 841(b)(1)(A) and (B) are incorporated in the quantity-based guidelines, the government could not avoid them the statutory minimum sentences by failing to include a quantity allegation in the indictment or information. The failure to include a quantity allegation has no effect on the appropriate sentence under the guidelines. The district court erroneously informed defendant he was subject to imprisonment for zero to 10 years, under section 841(b)(1)(C). However, he was not guaranteed this sentencing range because the quantity of drugs involved in the offense had yet to be determined. While the district court was not required to calculate defendant’s guideline range before accepting his guilty plea, it was required to inform him of any minimum sentences he might faces. The district court’s failure to advise defendant, before accepting his guilty plea, that he might be subject to certain mandatory minimum penalties, violated Fed. R. Crim. P. 11 and required the plea to be vacated. U.S. v. Watch, 7 F.3d 422 (5th Cir. 1993).
5th Circuit reverses for failure to inform defendant of mandatory minimum penalty. (245) At defendant’s plea colloquy, the judge advised him that he faced a maximum of 20 years imprisonment, when in fact he faced a mandatory minimum five year term and a maximum of 40 years imprisonment. The 5th Circuit held that the failure to properly advise defendant was not harmless error. There was no basis for concluding that defendant was “aware of and understood” that there was a five-year minimum sentence. Where a minimum mandatory sentence, of which a defendant was not informed, constitutes a substantial portion of the actual sentence imposed, there is a “significant possibility” that awareness of such a minimum would have affected the defendant’s decision to plead guilty. The appellate court blamed the government for an ambiguous statement of factual basis, which the judge interpreted as representing that the offense involved 50 marijuana plants, when in fact the offense involved 110 plants. U.S. v. Herndon, 7 F.3d 55 (5th Cir. 1993).
5th Circuit rejects reasonable doubt standard for drug quantity determination under mandatory minimum. (245) Defendant argued that he should not have been sentenced to a mandatory term of life imprisonment without parole under 21 U.S.C. §841(a)(1)(A)(i) because the court did not find beyond a reasonable doubt that he possessed one kilo of heroin. While recognizing that the reasonable-doubt standard might be required in a case in which the “tail” of sentencing wags the “dog” of conviction, the 5th Circuit examined the sentence and concluded this was not such a case. Even assuming that defendant had possessed only the 100 grams he admitted possessing, the guidelines would still require that defendant receive a sentence of at least 30 years imprisonment. Nor did the life sentence without parole itself necessitate a higher standard of proof than preponderance of the evidence. U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993).
5th Circuit excludes negotiated amount in finding mandatory minimum quantity. (245) Defendant was sentenced to a mandatory life term under 21 U.S.C. §§841(a)(1)(A)(i) and 846. In assessing whether defendant’s drug quantity qualified him for that sentence, the 5th Circuit concluded that only quantities actually possessed with the intent to distribute could be considered. Unlike a calculation of drug quantity under the guidelines, amounts that were merely negotiated could not be considered. The court concluded that a conspiracy to possess the quantity would allow it to be considered, but noted that a defendant cannot “conspire” with an undercover agent, and hence that defendant’s negotiated quantity could not be considered. While the district court properly excluded the negotiated amount, it committed clear error in assessing defendant’s drug quantity by relying on cryptic notes on a piece of paper seized from a coconspirator. U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993).
5th Circuit, en banc, orders harmless error test for all imperfections in the plea colloquy. (245) In an en banc decision, the 5th Circuit rejected the dichotomy in its prior cases between “core” and “non-core” requirements of Rule 11, and held that reversal will be required only when the challenged variance from Rule 11 procedure affects substantial rights of the defendant. The court adopted a two-part “harmless error” analysis: (1) Did the sentencing court in fact vary from the procedures required by Rule 11, and (2) if so, did such variance affect substantial rights of the defendant? Here, the district court’s failure to advise defendant that he was facing a one-year mandatory minimum sentence was harmless. It was clear from the record that defendant understood that he faced a guidelines sentence of at least 21 years. There was no reasonable probability that defendant’s knowledge that there was a one-year mandatory minimum penalty for his crimes could have affected his decision to plead guilty. U.S. v. Johnson, 1 F.3d 296 (5th Cir. 1993) (en banc).
5th Circuit says sentence below mandatory minimum was downward departure. (245) Defendant’s offense carried a statutory minimum penalty of 20 years, but pursuant to a plea bargain the government recommended an 18-year sentence because of defendant’s assistance. The district court imposed an 18-year sentence, rejecting defendant’s request for a sentence within the guideline range that would have been applicable had the offense not been subject to a statutory minimum sentence. The 5th Circuit affirmed, rejecting defendant’s claim that the district court impermissibly departed upward by sentencing above the guideline range that would have applied absent a statutory minimum. The 18-year sentence was a downward departure. Under section 5G1.1(b), the statutory minimum was the guideline sentence regardless of whether the government moved for a downward departure. U.S. v. Santa Lucia, 991 F.2d 179 (5th Cir. 1993).
5th Circuit says remand permitted introducing additional information on drug purity. (245) In U.S. v. Kinder, 946 F.2d 362 (5th Cir.), the 5th Circuit remanded to find whether the 269 gram methamphetamine mixture seized contained more than 100 grams of pure methamphetamine, and thus whether 21 U.S.C. section 841(b)(1)(A)(viii) was properly applied. On remand, the government was permitted to introduce evidence that the methamphetamine was 77 percent pure, and thus the quantity of pure methamphetamine involved was 207.1 grams. The 5th Circuit rejected defendant’s contention that this new information should not have been considered because it went beyond the record. When the court remanded the case and ordered the district court to allow the government to point to the record in order to determine the amount of the drug’s purity, it did not intend to limit it to evidence already in the record. U.S. v. Kinder, 980 F.2d 961 (5th Cir. 1992).
5th Circuit affirms constitutionality of prohibiting departures below mandatory minimum except for substantial assistance. (245) Defendant contended that the court’s inability to depart below his mandatory minimum five year sentence violated due process and equal protection. The only basis for departing below a mandatory minimum is substantial assistance to the government under 18 U.S.C. section 3553(e). Since couriers like defendant do not have access to information, he contended that this system unfairly provides kingpins, but not couriers, with a means of avoiding a mandatory minimum. The 5th Circuit affirmed the constitutionality of the scheme for departing below a mandatory minimum. Section 3553(e) is rationally related to the legitimate purpose of obtaining valuable information from drug criminals. It does not discriminate against a suspect class, nor is it arbitrary. Mandatory minimums and downward departures achieve different goals. U.S. v. Rojas-Martinez, 968 F.2d 415 (5th Cir. 1992).
5th Circuit upholds application of more lenient statutory provision. (245) Defendants were convicted of manufacturing 17.5 kilograms of a mixture containing methamphetamine. The version of 21 U.S.C. section 841 in effect at the time defendants committed their drug offenses set forth two different penalties for identical violations of section 841(a) involving 100 grams or more of a substance containing methamphetamine. Defendants were sentenced under the more lenient provision, 21 U.S.C. section 841(b)(1)(B), instead of section 841(b)(1)(A). The 5th Circuit affirmed that under this prior version of the statute, and following the rule of lenity, defendants were properly sentenced under the more lenient statutory provision. U.S. v. Sherrod, 964 F.2d 1501 (5th Cir. 1992).
5th Circuit holds mandatory sentence for child pornography offense is not subject to negotiation in plea agreement. (245) Defendant pled guilty to his second offense of possessing child pornography in violation of 18 U.S.C. section 2252(a)(2), which carries a mandatory minimum sentence of five years. However, pursuant to the plea agreement, the district court sentenced defendant to 39 months. Defendant argued that the U.S. Attorney’s promise not to seek the sentencing enhancement under section 2252(b)(2) obliged the trial court to refrain from imposing the minimum penalty of five years. The 5th Circuit rejected this argument, since guideline section 5G1.1(b) states that where a statutory minimum sentence exceeds the guideline range, that minimum sentence shall be the guideline sentence. The U.S. Attorney was wholly without authority to ignore the minimum sentence. “That the government actually urged the court to sentence below the statutory minimum is, in our view, a serious breach of its duty to enforce the law Congress wrote.” U.S. v. Schmeltzer, 960 F.2d 405 (5th Cir. 1992).
5th Circuit holds that 2-1/2 year old drug trafficking charge was not part of instant offense for mandatory minimum sentencing purposes. (245) Defendant was convicted of drug charges after smuggling cocaine on an aircraft. Under 21 U.S.C. section 960(b)(1), the mandatory minimum sentence of 10 years is doubled if a defendant has a prior drug trafficking conviction. The 5th Circuit rejected defendant’s claim that her 1988 Kansas conviction for conspiracy to sell cocaine and her present conviction were all one episode of an ongoing conspiracy. The time between the two crimes was more than 2-1/2 years, the statutory offenses charged were completely different, and the offenses took place in geographically distant locations. U.S. v. De Veal, 959 F.2d 536 (5th Cir. 1992).
5th Circuit rules sentencing errors in imposition of mandatory minimum sentence were harmless. (245) Defendant was convicted of a drug offense carrying a mandatory minimum sentence of 60 months. The district court sentenced him to 51 months on this charge. It then imposed a nine-month consecutive sentence under 18 U.S.C. section 3147, because following his pretrial release he was convicted of misdemeanor assault in state court. In its original opinion, the 5th Circuit held that it was error not to impose the mandatory minimum 60 months sentence for the drug charge, for a total 69 month minimum sentence. Here, the 5th Circuit withdrew the prior opinion because it had failed to realize that section 3147 had no applicability to defendant’s case. This statute provides for an enhanced sentence for a person who commits a federal crime while on release, and the enhancement applies to the sentence for the new crime committed while on release, not to the original crime for which the defendant is on release. However, despite the two sentencing errors, no remand was necessary. The end result was a sentence of 60 months, the mandatory minimum for defendant’s offense. The district court evidenced an intent to sentence defendant to the 60-month minimum, and therefore a remand would serve no purpose. U.S. v. Pace, 955 F.2d 270 (5th Cir. 1992).
5th Circuit rules incorrect citation in information was harmless error. (245) The day before defendant’s trial on drug charges, the government filed an Information of Prior Convictions alleging that defendant’s two prior convictions made him eligible for an enhanced sentence under 21 U.S.C. section 962. This citation was in error, and should have been to 21 U.S.C. section 851. The 5th Circuit ruled that the incorrect citation was harmless error under Fed. R. Crim. P. 7(c)(3), since defendant was not misled to his prejudice. Prior to accepting defendant’s guilty plea, the district judge explained to defendant that he was subject to an enhanced sentence for the prior convictions listed in the information. Clearly defendant and his counsel were aware that the government intended to exercise its discretion to request an enhanced sentence, and they were aware of the specific convictions. U.S. v. Garcia, 954 F.2d 273 (5th Cir. 1992).
5th Circuit rules judge’s failure to comply with section 851(b) was harmless error. (245) Under 21 U.S.C. section 851(b), when the government files an information seeking an enhanced sentence based upon a defendant’s prior convictions, the district court must ask the defendant whether he affirms or denies the prior conviction, and inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence. The judge did question defendant about his prior convictions but never advised defendant of the proper timing of a challenge to the convictions. The 5th Circuit ruled that this failure was harmless error. Defendant failed to comply with section 851(c), which requires a defendant who wishes to challenge prior convictions to give advance notice to the court and the government of the basis for his challenge. Moreover, defendant failed to suggest that the judge’s omission precluded him from presenting a specific challenge to one or both of the prior convictions. U.S. v. Garcia, 954 F.2d 273 (5th Cir. 1992).
5th Circuit rejects ambiguity challenge where defendant was sentenced within most lenient punishment range. (245) The law provides two contradictory punishments for the same quantity of methamphetamine: 21 U.S.C. section 841(b)(1)(A) (viii) provides for a sentence of 10 years to life, while 21 U.S.C. section 841(b)(1)(B)(viii) provides for a sentence of between five and 40 years. Defendant received a 240 month sentence. The 5th Circuit held that since the district court applied the more lenient punishment range, the defendant incurred no injury, and therefore lacked standing to complain about the ambiguity in the statute. U.S. v. Allison, 953 F.2d 870 (5th Cir. 1992), amended, 986 F.2d 896 (5th Cir. 1993).
5th Circuit remands because court failed to apply rule of lenity to overlapping penalties. (245) Defendants contended that the 1988 version of 21 U.S.C. section 841(b)(1) was unconstitutionally vague because it provided two different penalties for the same offense. Subsection (A)(viii) provided for 10 years to life if the offense involved at least 100 grams of a mixture containing methamphetamine, while subsection (B)(viii) provided for imprisonment of only 5 to 40 years if the offense involved at least 100 grams of a mixture containing methamphetamine. The 5th Circuit ruled that the inconsistent penalties did not invalidate the section, but that the district court erred in failing to apply the rule of lenity. This directly affected one defendant’s sentence, raising his offense level as a career offender from 34 to 37. It also may have influenced the decision to sentence the other defendant at the top of his guideline range. On remand the court was also instructed to allow the government to point to evidence in the record that the 269 grams of methamphetamine seized was at least 37 percent pure. If so, there was at least 100 grams of pure methamphetamine, and the stricter penalty scheme would be triggered. U.S. v. Kinder, 946 F.2d 362 (5th Cir. 1991).
5th Circuit holds mandatory minimum sentence provisions of 21 U.S.C. 841(b) apply only to convictions for conspiracies after to Nov. 18, 1988. (245) The 5th Circuit held that prior to the November 18, 1988 amendment, a conviction for conspiracy to violate the narcotics laws in violation of 21 U.S.C. § 846, was not subject to the minimum mandatory sentences required for conviction of the substantive offenses. However, conspiracies after November 18, 1988 are subject to mandatory minimum sentences. U.S. v. Brown, 887 F.2d 537 (5th Cir. 1989).
5th Circuit rules that when minimum mandatory sentence exceeds guidelines, the guideline is the statutory minimum. (245) Defendant argued that the Sentencing Reform Act of 1984 implicitly repealed the 10 year minimum mandatory sentence in 21 U.S.C. 841(b). The 5th Circuit rejected his challenge, based on Rodriquez v. U.S., 107 S.Ct. 1391 (1987), which held that there was no basis in the legislative history or language of the Probation Act to find that Congress intended to partially repeal other sentencing statutes. Quite the contrary, guideline § 5G1.1(b) states that when minimum mandatory sentences exceed guideline sentences, the guideline sentence shall be the minimum mandatory sentence. U.S. v. Stewart, 879 F.2d 1268 (5th Cir. 1989).
6th Circuit, en banc, denies retroactive effect to new crack minimums in Fair Sentencing Act. (245) The Fair Sentencing Act of 2010 significantly reduced the sentencing disparity between offenses involving crack and powder cocaine. The ratio between the amount of powder and crack needed to trigger the mandatory minimums was reduced from 100:1 to only 18:1. In this case, defendants were sentenced for crack offenses five years before the FSA took effect. The Sixth Circuit, en banc, held that the FSA did not apply retroactively to undo final sentences imposed before the FSA took effect. Under the general saving statute, a law that reduces statutory penalties for an offense presumptively does not alter penalties imposed before the new law took effect. The FSA does not say that it covers offenders sentenced before it became effective, nor is there any indication that it was intended to apply to offenders already sentenced. This is reinforced by Dorsey v. U.S., 132 S.Ct. 2321 (2012), which held that the FSA applies to all individuals sentenced after its effective date. U.S. v. Blewett, __ F.3d __ (6th Cir. Dec. 3, 2013) No. 12-5226 (en banc).
6th Circuit says pre-FSA statutory crack minimum does not bar applying retroactive guideline reduction. (245) Defendant moved for a reduction in his cocaine base sentence under retroactive Amendment 750. The district court denied the motion, reasoning that defendant was still subject to a statutory minimum sentence because he was sentenced before the statutory minimums were reduced by the Fair Sentencing Act. The Sixth Circuit disagreed, holding defendant’s sentence was based on a subsequently reduced guideline range, and that the new rather than old statutory minimum sentence applied. The government’s interpretation would exclude cooperating defendants from the benefits of a sentence reduction simply because their original range prior to departure happened to be the presumptive statutory minimum. Applying the new minimums in defendant’s § 1B1.10(b)(1) calculation was the only way to give effect to Congress’s intent to achieve consistency with other guideline provisions. U.S. v. Doe, 731 F.3d 518 (6th Cir. 2013).
6th Circuit says crack defendant who remains subject to mandatory minimum is not eligible for resentencing under FSA. (245) In 2003, defendant pled guilty to drug and firearms charges. After passage of the Fair Sentencing Act in 2010 (FSA), defendant moved for a sentence modification under 18 U.S.C. § 3582(c)(2). The district court ruled that he was ineligible because his sentencing range, which was based on the mandatory minimum, had not changed. The Sixth Circuit agreed. Defendant’s initial guideline range was 97-121 months, but his drug quantity called for a mandatory minimum sentence of 120 months, converting his range to 120-121 months. The issue was controlled by U.S. v. Hammond, 712 F.3d 333 (6th Cir. 2013). Defendant was still subject to the same 120-month mandatory minimum, despite the enactment of the FSA and guideline Amendments 750 and 759, which reduced the guideline level for crack offenses. The district court had no authority to reduce defendant’s sentence under § 3582(c)(2) because his sentencing range had not “subsequently been lowered by the Sentencing Commission.” U.S. v. Bell, 731 F.3d 552 (6th Cir. 2013).
6th Circuit denies crack sentence reduction where defendant remained subject to mandatory minimum. (245) Defendant pled guilty to crack cocaine offenses. Although he was subject to a 240–month mandatory minimum, the government moved for a substantial assistance departure, and he was sentenced to 107 months. Following the Fair Sentencing Act of 2010 and the corresponding crack guideline amendments in Amendment 750, defendant moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court denied the request because defendant remained subject to the same 240-month mandatory minimum sentence, and the Sixth Circuit agreed. When a statutory minimum falls above a defendant’s guideline range, the statutory minimum becomes the defendant’s new § 1B1.1 (a) guideline range. Such a statutory minimum also becomes the defendant’s “applicable guideline range.” Thus, defendant’s “applicable guideline range” at the time of his original sentencing was his statutory minimum sentence of 240 months, and Amendment 750 did not reduce it. U.S. v. Joiner, 727 F.3d 601 (6th Cir. 2013).
6th Circuit requires additional mandatory minimum light of Abbott. (245) Defendant was convicted of drug and firearms charges. He was subject to a mandatory minimum sentence of ten years on each of the two drug-conspiracy counts. 21 U.S.C. § 841(b)(1)(A)(viii). The government asserted that he was also subject to a mandatory minimum of five years for his firearms conviction, consecutive to the ten-year sentences. See 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). At the time of sentencing, this mandatory minimum was prohibited by U.S. v. Almany, 598 F.3d 238 (6th Cir. 2010), vacated, U.S. v. Almany, 131 S.Ct. 637 (2010) (rejecting mandatory minimum under § 924(c) where defendant was already subject to a greater mandatory minimum). But while defendant’s appeal was pending, the Supreme Court decided Abbott v. U.S., 131 S.Ct. 18 (2010), which held, contrary to Almany, that the mandatory minimum under § 924(c) must be imposed even if a greater mandatory minimum also applies. The Sixth Circuit reversed the sentence and remanded for resentencing U.S. v. Beals, 698 F.3d 248 (6th Cir. 2012).
6th Circuit counts adjudication under Michigan’s Youthful Trainee Act as prior drug conviction. (245) In 2005, defendant pled guilty to federal drug charges, and received an enhanced mandatory minimum sentence of 120 months based on defendant’s previous Michigan drug conviction. Defendant had been designated a “youthful trainee” under Michigan’s Holmes Youthful Trainee Act (YTA), Mich. Comp. Laws §§ 762.11-16, and placed on probation. The YTA gives youthful offenders a chance to wipe their records clean provided that they do not violate the status as “youthful trainees.” However, if the status as a youthful trainee is revoked, the court may enter an adjudication of guilt, and impose a sentence. In defendant’s case, his probation officer moved for a discharge of probation based on a probation violation. The trial judge signed the order, but did not follow up its dismissal with an adjudication of guilt. Nonetheless, the Sixth Circuit held that defendant’s adjudication under the YTA qualified as a prior conviction for federal sentencing purposes, even though no formal judgment was entered. A plea of guilty to a felony drug offense qualifies as a prior conviction for federal sentencing purposes when the defendant is assigned as a youthful trainee pursuant to the YTA. Adams v. U.S., 622 F.3d 608 (6th Cir. 2010).
6th Circuit holds that mandatory life sentence did not violate Eighth Amendment. (245) Defendant was convicted of three crack cocaine offenses under 21 U.S.C. § 841(a)(1) and 846. He argued that his life sentence, imposed for his third qualifying felony under § 841(b)(1)(A), was grossly disproportionate under the Eighth Amendment as a result of an over-stated criminal history, and in comparison to his co-defendants’ sentences. He acknowledged that U.S. v. Hill, 30 F.3d 48 (6th Cir. 1994) held that mandatory minimum sentences under 21 U.S.C. § 841(B) (1)(a)(iii) do not constitute cruel and unusual punishment, but argued that his sentence “was triggered by an overrepresented criminal history” rather than just the statute, and that the government did not present direct evidence that he “possessed anything.” The Sixth Circuit disagreed. These arguments did not distinguish Hill. The district court did not violate the Eighth Amendment in imposing a life sentence. U.S. v. Graham, 622 F.3d 445 (6th Cir. 2010).
6th Circuit counts drug offense committed as juvenile where defendant was convicted as adult. (245) Defendant had two prior felony drug convictions, both of which the district court counted as triggering offenses for purposes of imposing a mandatory life sentence under § 841(b)(1)(A)(iii). The Sixth Circuit held that the district court properly counted a drug offense defendant committed as a juvenile, but for which he was convicted and sentenced as an adult. First, the statutory language supported the district court’s ability to count defendant’s juvenile-age conviction as a § 841(b)(1)(A)(iii) prior conviction. Nothing in § 841(b)(1)(A) indicates that a defendant’s age at the time of his or her prior conviction is relevant to the application of § 841. Defendant was not adjudicated in the juvenile system. Under Supreme Court precedent and the plain language of the statute, a sentencing court imposing a mandatory minimum under § 841(b) (1)(A) must use the “felony drug offense” definition in § 802(44) with reference to the state law of conviction. Here, the state chose to prosecute defendant for an adult drug offense that qualified as a felony under state law. Judge Merritt dissented. U.S. v. Graham, 622 F.3d 445 (6th Cir. 2010).
6th Circuit finds mandatory minimum sentence was not unreasonable. (245) Defendant was convicted of drug charges. He argued on appeal that, because the district court expressed a desire to sentence him below the mandatory minimum applicable to his offense, his sentence was unreasonable. He suggested that 18 U.S.C. § 3553(a) provided a vehicle for circumventing mandatory minimum sentences. The Sixth Circuit disagreed. A district court’s “ardent desire” to sentence a defendant below a mandatory minimum sentences does not make the sentence unreasonable, and § 3553(a) does not change this. U.S. v. Cecil, 615 F.3d 678 (6th Cir. 2010).
6th Circuit says error in identifying basis for sentence below mandatory minimum was harmless. (245) Defendant pleaded guilty to conspiracy to manufacture marijuana, an offense carrying a 120-month minimum sentence. At sentencing, the government moved under 18 U.S.C. § 3553(e) and § 5K1.1 for a reduction in sentence based on defendant’s substantial assistance. The district court noted that it could not impose a sentence below the mandatory minimum without a government motion under § 5K1.1 because a sentence below the mandatory minimum would also be below the Guideline range. It then imposed a sentence of 87 months. On appeal, defendant argued that the district court improperly concluded that it could not sentence below the mandatory minimum without a § 5K1.1 motion. The Sixth Circuit agreed, holding that a motion under § 3553(e) gives the district court the authority to impose a sentence below the statutory minimum and the Guideline range. The court held, however, that the error was harmless because defendant received a sentence below the 120-month statutory minimum. U.S. v. Gabbard, 586 F.3d 1046 (6th Cir. 2009).
6th Circuit holds that drug quantity in indictment did not control application of mandatory minimum. (245) Defendant was convicted of conspiracy to distribute cocaine based on his role in collecting money owed to a co-conspirator for the sale of two kilograms of cocaine. The indictment specified that the offense involved five kilograms of cocaine, which would trigger a mandatory minimum sentence of 240 months. The district court found that defendant’s “known offense conduct” involved only two kilograms of cocaine, which would yield a guideline range of 97-121 months. However, the court believed that it was constrained to sentence defendant according to the five kilograms of cocaine specified in the indictment, and imposed a 240-month sentence. The Sixth Circuit reversed, holding that the court erred in finding that it was bound by the drug quantity charged in the indictment. It is unnecessary to allege drug quantity in an indictment, and the quantity alleged does not dictate the applicable mandatory minimum. The only exception, not applicable here, is when drug quantity would increase the penalty for a crime beyond the prescribed statutory maximum. U.S. v. Cox, 565 F.3d 1013 (6th Cir. 2009).
6th Circuit rejects claim that mandatory life sentence was cruel and unusual. (245) Defendant was convicted of drug and firearms charges. At sentencing, the district court found that defendant had two prior felony convictions, and, as a result, that a statutory minimum of life imprisonment was required on the drug conspiracy conviction. He argued that the application of a mandatory life sentence violated the Eight Amendment because it was grossly disproportionate to the offenses at issue, noting that he served a total of only 90 days’ imprisonment for his prior drug-related convictions, and that his prior felonies did not involve any personal injury or property damage. The Sixth Circuit found this argument foreclosed by Harmelin v. Michigan, 501 U.S. 957 (1991), which concluded that a life sentence for possession of 672 grams of cocaine did not violate the Eighth Amendment, even though it was the defendant’s first offense. The panel also rejected claims that the life sentence was disproportionate to the sentences received by his co-defendants, violated separation of powers doctrines, or improperly prohibited the judge from considering defendant’s individual circumstances. U.S. v. Odeneal, 517 F.3d 406 (6th Cir. 2008).
6th Circuit holds that plea agreement authorized downward departure from statutory minimum. (245) Defendant pled guilty to firearms and drug charges. The drug charges carried a mandatory minimum sentence of 60 months’ imprisonment. The government filed a § 5K1.1 motion, requesting a one-level departure. The district court imposed a 30-month sentence. The Sixth Circuit affirmed, holding that the plea agreement authorized the district court to depart below the 60-month mandatory minimum. Generally, a court may not depart below the statutory minimum unless the government moves for such a departure under either 18 U.S.C. § 3553(e) or § 3553(f). However, at the plea hearing, the judge concluded that the plea agreement allowed him to depart below the statutory minimum, and the AUSA did not object to this interpretation. The judge then informed defendant that the agreement allowed him to “avoid the mandatory five year punishment.” Once again, the AUSA did not object to this conclusion. The agreement itself gave the court “complete discretion” to determine the appropriate sentence reduction. Although there was no cite to § 3553(e) or a quote from its text, the language in the plea agreement, and the government’s agreement to this interpretation, could not have been more explicit. U.S. v. McIntosh, 484 F.3d 832 (6th Cir. 2007).
6th Circuit holds that court exceeded authority to correct sentence. (245) Defendant pled guilty to drug charges. The district court granted the government’s motion for a downward departure, and sentenced defendant to 41 months’ imprisonment. The government later moved under Rule 35(a) for correction of the original sentence, contending that, contrary to the district court’s calculations, the appropriate starting point for the downward departure was the mandatory minimum sentence, which in defendant’s case, was ten years. After a hearing, the court granted the government’s motion, concluding that the original sentence was erroneous, and imposing a 51-month sentence. The Sixth Circuit held that the district court exceeded its authority under Rule 35(a). The 41-month sentence pronounced by the district court was pursuant to the government’s motion for a downward departure, and was within the court’s discretion. The decisions of “whether to depart and how much to depart are entirely committed to the district judge’s discretion.” The government’s attempts to revise the valid sentence was not permitted by Rule 35(a). U.S. v. Arroyo, 434 F.3d 835 (6th Cir. 2006).
6th Circuit says court misunderstood authority to impose sentence between mandatory minimum and guideline range. (245) Defendant was subject to a mandatory minimum sentence of 120 months. If the mandatory minimum was not applicable, his guideline range would have been 63-78 months. The government made a motion for a substantial assistance departure under 18 U.S.C. § 3553(b)(1) and U.S.S.G. 5K1.1. The district court imposed a 120-month sentence, noting that the government’s request would reduce defendant’s sentence from 120 months to a range of 63-78 months. The Sixth Circuit held that the district court apparently misunderstood its authority to impose a sentence below the mandatory minimum but above the otherwise applicable guideline range. The court stated that it had to choose between two alternatives: a sentence of 120 months, or a sentence in the range of 63-78 months. The court indicated that it lacked authority to impose a sentence in the intermediate range of 78-120 months. This understanding of the law is contrary to U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002). The error was not harmless, because there was a chance that the court’s ultimate sentence was influenced by its understanding of its sentencing options. U.S. v. Schray, 383 F.3d 430 (6th Cir. 2004).
6th Circuit says § 851 does not violate separation of powers principles. (245) Under 21 U.S.C. § 851, increases in sentences based upon prior felony drug convictions may not be imposed unless the U.S. Attorney has filed an information stating the previous convictions to be relied upon. Defendant argued that § 851 violates separation of powers principles because the decision to request an enhanced sentence lies with the U.S. Attorney, while the district court has no leeway. The Sixth Circuit disagreed, holding that § 851 is not an improper delegation of legislative authority. The Supreme Court, in rejecting an argument that prosecutorial discretion under § 851 leads to unwarranted disparity in sentencing, has analogized prosecutorial discretion under § 851 to the power of the executive to charge defendants. See U.S. v. LaBonte, 520 U.S. 751 (1997). The rationale of LaBonte leads directly to the conclusion that § 851 does not violate the principle of separation of powers. The discretion a prosecutor exercises in determining whether an enhanced statutory maximum applies under § 851 is similar to the initial discretion the prosecutor has in deciding which charges to bring against a defendant. U.S. v. Crayton, 357 F.3d 560 (6th Cir. 2004).
6th Circuit finds no Apprendi violation despite use of higher statutory range where sentence imposed did not exceed default statutory maximum. (245) The district court sentenced defendant to a 30-year term pursuant to § 841(b)(1)(B). Defendant insisted that he should have been sentenced under § 841(b)(1)(C), because drug quantity was not determined by the jury beyond a reasonable doubt. The Sixth Circuit held that because defendant’s sentence was within the statutory maximum of § 841(b)(1)(C), his sentence did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). It was clear that the district court did not intend to sentence defendant pursuant to the statutory range of § 841(b)(1)(C). Nevertheless, the sentence imposed fell within § 841(b)(1)(C). Under Harris v. U.S., 122 S.Ct. 2406 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013), because defendant was not sentenced beyond the statutory range of § 841(b)(1)(C), the fact that the court sentenced defendant based in part on findings not proved beyond a reasonable doubt did not rise to a constitutional violation under Apprendi. U.S. v. Copeland, 321 F.3d 582 (6th Cir. 2002).
6th Circuit holds that court improperly aggregated drug quantities to trigger mandatory minimum. (245) Defendant confessed to police that he had manufactured three batches of methamphetamine totaling more than 50 grams. The district court found he was subject to a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(viii) for a violation of § 841(a)(1) “involving 50 grams or more of methamphetamine.” The Sixth Circuit reversed, holding that the district court plainly erred in aggregating the drugs involved in three separate batches in order to reach the 50-gram amount needed to trigger the mandatory minimum. Where the acts of manufacturing are distinct, they must be treated as distinct violations of § 841(a)(1), and thus cannot be aggregated for purposes of the mandatory minimum statutes. Here, there was no evidence that defendant manufactured the three batches in question in anything resembling a “continuing” basis. U.S. v. Sandlin, 313 F.3d 351 (6th Cir. 2002).
6th Circuit holds that application of mandatory minimum did not violate Apprendi. (245) The district court found defendant accountable for seven kilograms of cocaine, resulting in a guideline range of 97-121 months. Relying on the mandatory minimum sentence for offenses involve kilograms or more of cocaine set forth in 21 U.S.C. § 841(b)(1)(A), the district court sentenced him to 120 months. In U.S. v. Ramirez, 242 F.3d 348 (6th Cir. 2001), the Sixth Circuit interpreted Apprendi v. New Jersey, 530 U.S. 466 (2000) as applying to mandatory minimum sentences. However, in Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013), the Supreme Court abrogated Ramirez, hold that a judge may impose a mandatory minimum sentence without violating Apprendi, if the sentence imposed is within the otherwise applicable statutory maximum. Defendant’s 120-month sentence was less than the 240-month statutory maximum, and did not violate Apprendi. U.S. v. Samuels, 308 F.3d 662 (6th Cir. 2002).
6th Circuit affirms despite exposure to higher mandatory minimum where sentence imposed was not at bottom of higher range. (245) Although defendant’s indictment did not allege a specific quantity of drugs, he admitted being responsible for 625 kilograms of marijuana. Under 21 U.S.C. § 841(b)(1)(B), the maximum penalty for trafficking in 400-700 kilograms of marijuana is 40 years. The district court found that defendant had participated in transporting 2499 kilograms of marijuana, and imposed a sentence of 135 months. Because defendant’s sentence did not exceed the 40-year statutory maximum for the quantity of marijuana to which he expressly admitted, the Sixth Circuit held that defendant’s sentence did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant’s sentence also did not violate U.S. v. Ramirez, 242 F.3d 348 (6th Cir. 2001), even though the court’s findings brought defendant within a sentencing range (ten years to life under § 841(b)(1)(A)) with a higher mandatory minimum than he explicitly admitted to at his allocution (five to 40 years under § 841(b)(1)(B)). The sentence imposed here was not at the bottom of the higher statutory range, as it was in Ramirez; thus, nothing indicated that the court thought itself constrained by a specific statute to impose the sentence it did. U.S. v. Garcia, 252 F.3d 838 (6th Cir. 2001).
6th Circuit says guidelines’ reasonably foreseeability analysis applies in finding responsibility for drug death. (245) Isaacs sold heroin to Phillips, resulting in Phillips’s death from a heroin overdose. The district court held Isaacs responsible for Phillips’s death under 21 U.S.C. § 841(b)(1)(C) (20-year mandatory minimum sentence “if death or serious bodily injury” resulted from drugs) and USSG § 2D1.1(a)(2) (requiring enhanced offense level of 38 if the defendant is convicted under § 841(b)(1)(C) and “death or serious bodily injury resulted). The court refused to impose a heightened base offense level on any of the other nine defendants, finding the government did not establish that their conduct was the “critical proximate cause” of Phillips’s death. The Sixth Circuit held that the district court erred in not applying the reasonable foreseeability analysis of § 1B1.3(a)(1)(B). Under this analysis, a defendant is accountable for the conduct of other conspirators if that conduct was (1) reasonably foreseeable to him, and (2) in furtherance of jointly undertaken criminal activity. The court rejected U.S. v. Patterson, 38 F.3d 139 (4th Cir. 1994), which held that § 841(b)(1)(C) has no reasonable foreseeability requirement. The court had “no difficulty in reconciling the mandatory minimum language of § 841(b)(1)(C) and § 1B1.3(a)(1)(B),” noting that a number of circuits have applied the foreseeability analysis of the relevant conduct provision to the calculation of drug quantities for purposes of the mandatory minimum sentences under 21 U.S.C. §§ 841(b)(1) and 846. U.S. v. Swiney, 203 F.3d 397 (6th Cir. 2000).
6th Circuit rules information that did not specifically cite § 851 was adequate. (245) On August 12, the government filed a § 851 information which listed three felony non-drug convictions and referred to felony drug convictions in 1981, 1985 and 1988. On August 29, the government filed a supplemental information which provided more specific details regarding the prior felony drug convictions. The Sixth Circuit held that the informations satisfied § 851, even though they did not specifically reference § 851. A § 851 information is sufficient if it provides reasonable notice and an opportunity to be heard regarding the possibility of an enhanced sentence. The two informations provided defendant with adequate notice of the prior convictions. The statute is silent on the specificity with which the government must identify prior convictions. While the list of convictions provided by the government was extensive and did not single out those convictions on which it intended to rely, nothing in § 851(a)(1) requires this. Section 851 does not limit the number of convictions on which the government may rely. U.S. v. Layne, 192 F.3d 556 (6th Cir. 1999).
6th Circuit rejects challenge to validity of prior convictions cited in § 851 information. (245) Under § 851(c)(2), a defendant may claim that a prior conviction listed in the government’s information was obtained in violation of the Constitution. Defendant claimed that his prior felony drug convictions, which occurred in 1986 and 1989, resulted from guilty pleas that were not knowing and voluntary. The Sixth Circuit found that the statute barred defendant’s attempt to attack the validity of his 1986 and 1989 convictions. Under § 851(e), a defendant may not challenge the validity of a prior conviction “which occurred more than five years before the date of the information alleging such prior conviction.” Moreover, defendant’s attack lacked merit. Transcripts of the plea hearing for defendant’s 1986 and 1989 drug convictions made clear that defendant knowingly and intelligently waived his rights when he entered guilty pleas. The judges in both cases informed defendant of his constitutional rights, asked defendant if he understood what he was waiving, and received an affirmative response. Defendant offered nothing to suggest that he did not understand that he waived numerous constitutional rights by pleading guilty. U.S. v. Layne, 192 F.3d 556 (6th Cir. 1999).
6th Circuit rules mandatory minimum statute barred consideration of drugs outside offense of conviction. (245) Authorities found 91 marijuana plants growing in plastic cups outside the home of defendant’s fiancé. Defendant testified at the fiancé’s trial that she had grown the plants herself and placed them on her fiancé’s property because she was angry with him and wanted to get him into trouble. The fiancé was acquitted, and defendant pled guilty to manufacturing marijuana. The district court held that because defendant’s relevant conduct included more than 100 marijuana plants, defendant was subject to a mandatory minimum five-year sentence under 21 U.S.C. § 841(b)(1) (B)(vii). The Sixth Circuit held that the district court improperly considered drug activity outside the offense of conviction to determine that defendant was subject to a mandatory minimum sentence. Although the guidelines require the consideration of relevant conduct, the statutory minimum is imposed only when a single violation of § 841 involves more than the threshold quantity of drugs. The earlier conduct was not part of the offense of conviction. Defendant’s two separate crops in 1992 and 1992 could not be considered “a violation” of § 841. In addition, defendant’s guilty plea only referred to the plants seized at her fiancé’s property. U.S. v. Rettelle, 165 F.3d 489 (6th Cir. 1999).
6th Circuit includes drugs sold before prior convictions became final in mandatory minimum calculation. (245) Defendant was convicted of drug conspiracy charges. The court imposed a mandatory life sentence after finding that he had committed an offense involving more than 50 grams of cocaine base and had two prior final felony drug convictions. However, at the time defendant committed the first overt act in the conspiracy, he had not been sentenced on one of the two prior convictions. Defendant argued that any cocaine he sold before both convictions became final should not have been included in the calculation of the total amount sold. The Sixth Circuit held that because defendant continued to be involved in the conspiracy after both prior convictions were final, he committed the crime of conspiracy after he had two final felony drug convictions. Defendant was not charged with four discrete violations of the drug laws, but with a single, ongoing conspiracy. He committed the conspiracy every day over the life of the agreement, and the timing of each overt act was not controlling. Moreover, because conspiracy is a single violation of the drugs laws, the amounts involved in separate transactions were properly aggregated. U.S. v. Walker, 160 F.3d 1078 (6th Cir. 1998).
6th Circuit upholds validity of prior conviction used for mandatory minimum purposes. (245) The district court found defendant subject to a mandatory life sentence based in part on two prior felony drug convictions. Defendant argued that one state conviction was not valid because the judge who took his guilty plea failed to inquire into his educational level or whether he was under the influence of drugs or alcohol. Also, his answers during the colloquy were simply “Yes, your Honor,” without further elaboration, and thus provided an insufficient basis for concluding that his plea was knowing and voluntary. The Sixth Circuit upheld the validity of defendant’s guilty plea. There is no requirement that a defendant’s answers in a guilty-plea colloquy be lengthy and all-encompassing. A straightforward and simple “Yes, your Honor” is sufficient to bind a defendant to its consequences. Defendant did not present sufficient evidence to prove that his plea was not voluntary. Although the state court proceedings did not set forth a factual basis for the plea, that is not constitutionally required. U.S. v. Walker, 160 F.3d 1078 (6th Cir. 1998).
6th Circuit holds pleading guilty to separate crimes on the same day did not make them single offense. (245) Defendant argued that he did not have two prior felony drug convictions and thus was not subject to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A). The Sixth Circuit ruled that pleading guilty to two separate drug crimes on the same day did not make the crimes a single offense for mandatory minimum purposes. Defendant was arrested on June 22, 1988 for one drug trafficking offense, and on July 13, 1989 for a different drug trafficking offense. The offenses were indicted separately, had separate case numbers, were committed with different individuals, and carried consecutive sentences. Prior felony convictions occurring at separate times and places and with different people constitute separate offenses. U.S. v. Maxwell, 160 F.3d 1071 (6th Cir. 1998).
6th Circuit holds Ohio convictions for attempted drug trafficking and felony drug abuse were “felony drug offenses.” (245) Defendant was convicted of drug charges and received a mandatory life sentence under 21 U.S.C. § 841(b) because the court determined he had two prior convictions for “felony drug offenses.” The Sixth Circuit held that defendant’s Ohio convictions for attempted drug trafficking and felony drug abuse were “felony drug offenses.” Unlike the elements necessary for a conviction of criminal facilitation, Ohio’s attempt statute has been interpreted to require that the defendant have the specific intent to engage in the underlying substantive offense, and that he took steps toward completing that offense. The felony drug abuse conviction also qualified, even though it only criminalized the “mere” possession of drugs. A “felony drug offense” includes any criminal conduct relating to narcotics, including simple possession, which a state has proscribed as a felony. U.S. v. Spikes, 158 F.3d 913 (6th Cir. 1998).
6th Circuit rejects multiple constitutional challenges to mandatory life sentence. (245) Defendant was convicted of a crack cocaine conspiracy. The district court sentenced him to a mandatory term of life imprisonment under 21 U.S.C. § 841(b)(1)(A) because he was involved with 50 grams or more of crack and had two or more prior felony drug convictions. The Sixth Circuit rejected numerous constitutional challenges to the mandatory life sentence. The fact that § 841(b)(1)(A) does not distinguish between violent and non-violent offenders does not violate due process. The mandatory nature of the life sentence also does not violate due process. The sentence enhancement for previous drug convictions does not violate double jeopardy. The Supreme Court has upheld enhanced penalties for recidivists in non-capital cases. U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998).
6th Circuit upholds aggregating drug quantities for mandatory minimum. (245) Defendant was convicted of a crack cocaine conspiracy. The district court imposed a mandatory life term under 21 U.S.C. § 841(b)(1)(A) for “a violation” involving 50 grams or more of crack by a defendant with two or more prior felony drug convictions. Relying on U.S. v. Winston, 37 F.3d 235 (6th Cir. 1994), defendant argued that the district court erred when it aggregated the amount of crack for which he was responsible. There was no evidence that defendant ever sold or possessed more than 50 grams at any one time. The Sixth Circuit held that separate drugs that are part of the same drug conspiracy may be aggregated for mandatory minimum purposes. A conspiracy involving multiple overt acts is “a violation” of § 841(a). Winston barred the aggregation of drugs outside the conspiracy, to prevent a defendant from being held responsible for acts beyond the scope of his participation in the conspiracy. U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998).
6th Circuit holds that circuit split precluded finding plain error on meaning of § 851(a)(2). (245) Title 21 U.S.C. § 841(b)(1)(A) provides for a mandatory minimum sentence of 10 years for certain offenses involving more than a kilogram of marijuana. The mandatory minimum is doubled to 20 years for offenses with a prior felony drug conviction. Section 851(a)(2) bars the sentence enhancement in certain cases “unless the person waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” Defendant argued that the indictment requirement applied to the prior offense rather than the current offense. The Sixth Circuit noted that there was a circuit split on this issue and found that the circuit split precluded a finding of plain error. Although the court did not decide to which offense the indictment requirement applies, the court suggested that it would find that the indictment requirement applied to the current federal offense. U.S. v. Gaitan-Acevedo, 148 F.3d 577 (6th Cir. 1998).
6th Circuit reverses for relying on drug quantity in indictment to apply mandatory minimum. (245) Defendant argued that the district court erred in determining that it was bound to sentence him to a mandatory minimum 10 years under 21 U.S.C. § 960(b)(1)(A) because the indictment alleged he had attempted to import more than one kilogram of cocaine and under § 841(b)(1)(A)(i) because the indictment alleged that two kilograms of heroin were involved in the conspiracy. The Sixth Circuit held that the court erred in ruling that the amount of drugs in the indictment required a mandatory minimum sentence. The quantity of drugs involved is not an element of the offense. The district court improperly failed to make a determination of the quantity of drugs at sentencing. The presentence report attributed only 318 grams of heroin to defendant. U.S. v. Jinadu, 98 F.3d 239 (6th Cir. 1996).
6th Circuit says crimes on different dates at different places with different people were separate. (245) Defendant was convicted of a drug conspiracy and received a mandatory life sentence under § 841(b) based on three prior drug felonies. Defendant argued that his prior drug convictions were all one related scheme and should not have been counted as separate offenses for enhancement purposes. The Sixth Circuit held that the prior convictions were properly considered as separate convictions since they occurred at different times, at different places, and with different people. The three prior drug convictions were not “components of a single act of criminality.” Moreover, defendant’s receipt of concurrent sentences for these three prior felony drug convictions did not mean that the convictions were part of the same criminal episode. U.S. v. Anderson, 76 F.3d 685 (6th Cir. 1996).
6th Circuit finds drug agent’s testimony supported conclusion that drugs were not for personal use. (245) An undercover agent purchased 4.17 grams of crack from defendant. Immediately after the sale, police arrested defendant and found an additional 2.15 grams of crack in his possession. Defendant argued that the 2.15 grams were for his own personal use and should not have been included in the sentencing calculation. The district court included the 2.15 grams in its calculation, concluding that the jury had found him accountable for the full amount. The Sixth Circuit found that the jury verdict did not address drug quantity, but nonetheless upheld the calculation based on a drug agent’s testimony. The agent testified that she had arrested hundreds of crack users and that a mere user would never have that much crack at one time. The agent’s testimony was sufficient to hold defendant accountable for all 6.32 grams. U.S. v. Thomas, 49 F.3d 253 (6th Cir. 1995).
6th Circuit says LSD guideline does not apply for mandatory minimum purposes. (245) Defendant attempted to possess 3200 doses of LSD with intent to distribute. The weight of the LSD, in combination with its blotter paper carrier medium, was 20.87 grams. The district court imposed a mandatory minimum 10 year sentence under 21 U.S.C. § 841(b)(1)(A)(v). After defendant was sentenced, the Sentencing Commission amended guideline § 2D1.1 to provide that each dose of LSD should be treated as weighing .4 milligrams. Under the new formula, defendant was only involved with 1.28 grams. The Sixth Circuit held that this amendment did not apply for mandatory minimum purposes. The Sentencing Commission stated in its amendment that its approach does not override the definition of mixture or substance for purposes of applying any mandatory minimum sentence. Given this, Congress could not have intended for the amendment to override Chapman v. U.S., 500 U.S. 452 (1991). U.S. v. Andress, 47 F.3d 839 (6th Cir. 1995).
6th Circuit holds mandatory minimum cannot be reached by aggregating drug quantities from separate violations of statute. (245) Defendant was convicted of aiding and abetting possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Section 841(b) provides for a mandatory minimum 10-year sentence for a violation of subsection (a) involving 50 grams or more of cocaine base. Offenders with two or more felony drug offenses are subject to a mandatory life sentence. The 6th Circuit held that separate violations of subsection (a), each involving less than 50 grams of cocaine base, cannot be aggregated to trigger the mandatory minimums in subsection (b). The statute clearly refers to “a violation,” which means a single violation. Although defendant was indicted for conspiring to possess more than 50 grams of cocaine, the district court found that the conspiracy only involved 23 grams. Thus, defendant was not subject to a life sentence under § 841(b)(1)(A). U.S. v. Winston, 37 F.3d 235 (6th Cir. 1994).
6th Circuit says amount of crack is an element of the offense, not merely a sentencing factor. (245) Under 21 U.S.C. § 844(a), a person convicted of simple possession of more than five grams of crack cocaine is subject to between five and twenty years’ imprisonment. Because the maximum term exceeds one year, it is classified as a felony. Possession of not more than five grams (for a first-time offender) is punishable by a maximum of one year in prison, and is classified as a misdemeanor. The 6th Circuit held that because quantity affects whether a first offender is guilty of a felony or a misdemeanor, the amount of crack possessed is an element of the offense to be determined by the jury. If the jury had found defendant guilty of possessing crack with intent to distribute it, this would not be an issue, because the maximum term of imprisonment would have exceeded one year regardless of the quantity involved. U.S. v. Sharp, 12 F.3d 605 (6th Cir. 1993).
6th Circuit remands where judge mistakenly believed defendant was subject to 30-year, rather than 20-year, mandatory minimum. (245) Under 21 U.S.C. section 860(b), a defendant’s second conviction for drug distribution near a school increases the maximum sentence. However, the statute does not purport to increase the minimum sentence, and here the minimum sentence under 21 U.S.C. section 841(a), was 20 years. The 6th Circuit remanded because the district court mistakenly believed that the mandatory minimum sentence had been increased to 30 years. It was apparent that the district judge did not understand that she had discretion to sentence defendant to less than 30 years. U.S. v. Lloyd, 10 F.3d 1197 (6th Cir. 1993).
6th Circuit requires life sentence under §860 even though prior drug convictions were under other statutes. (245) Defendant was convicted of possession with intent to distribute cocaine within 1000 feet of an elementary school, in violation of 21 U.S.C. §§860 and 841(a)(1). He argued that life imprisonment is only required for a conviction under section 860 where the two prior drug felonies were also under section 860. The 6th Circuit rejected this argument, holding that a term of life imprisonment is mandated as long as the two necessary drug felony predicate offenses are established, and these offenses need not be violations of section 860. U.S. v. Jenkins, 4 F.3d 1338 (6th Cir. 1993).
6th Circuit holds that section 851(e) barred challenge to prior conviction. (245) The procedures for establishing prior convictions for certain sentence enhancements are set forth in 21 U.S.C. section 851. Section 851(e) provides that no person may challenge the validity of any conviction which occurred more than five years before the date of the information alleging the prior conviction. The 6th Circuit held that section 851(e) barred defendant’s challenge to the use of his 1981 conviction, since it occurred nearly 10 years before the government filed its information under section 851(a). U.S. v. Jenkins, 4 F.3d 1338 (6th Cir. 1993).
6th Circuit upholds application of mandatory minimum sentence for defendant who attempted to purchase baking soda. (245) Defendant was convicted of attempt and conspiracy to possess cocaine in violation of 21 U.S.C. section 846 after arranging to purchase two kilograms of cocaine from an undercover agent. In fact, the agent was carrying two kilograms of pure baking soda. The 6th Circuit rejected defendant’s claim that the mandatory minimum sentences in 21 U.S.C. section 841(b) were inapplicable to him because his offense did not involve “a mixture or substance containing a detectable amount” of cocaine. If the transaction had proceeded, defendant could not have been convicted of possession of cocaine because he would have possessed pure baking soda. However, defendant was convicted of attempt and conspiracy to possess cocaine. Section 846 requires the imposition of the same penalties as the completed offense. It did not matter whether the packages the agent carried contained pure cocaine, pure baking soda, or even existed at all. U.S. v. Kottmyer, 961 F.2d 569 (6th Cir. 1992).
6th Circuit bases mandatory minimum sentence on total drugs involved in conspiracy. (245) Defendant was convicted of a drug conspiracy involving 2 to 3.5 kilograms of cocaine. The 6th Circuit found that the district court erroneously failed to impose the mandatory minimum 10-year sentence. The penalty provisions for substantive drug offenses contained in 21 U.S.C. § 841 apply to related conspiracy convictions under 18 U.S.C. § 846. The penalty for possession with intent to distribute 500 or more grams of cocaine is five to 40 years, with a minimum of 10 years where the defendant has previously been convicted of a drug offense. The trial court incorrectly ruled that the mandatory minimum applied only where the conspiracy dealt in quantities of 500 grams or more at one time. The 6th Circuit held that the court should have added up the total amount sold during the lifetime of the conspiracy. U.S. v. Hodges, 935 F.2d 766 (6th Cir. 1991).
6th Circuit upholds mandatory minimum sentence against due process challenge. (245) Defendant contended that the mandatory minimum sentences required by 21 U.S.C. § 841(b)(1)(B)(iii) violate due process because 18 U.S.C. § 3553(e) allows a court to sentence below the mandatory minimum only upon motion of the government for substantial assistance. The 6th Circuit, following its recent decision in U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990), rejected this contention. Defendant argued that Levy did not control because it dealt with guideline § 5K1.1. However, this guideline was promulgated in response to 18 U.S.C. § 3553, and the guideline and parent statute are “substantively identical” for purposes of defendant’s claim. The government’s power to move for a downward departure is based on the reasonable assumption that the government is in the best position to advise the court of the extent of defendant’s assistance. U.S. v. Gardner, 931 F.2d 1097 (6th Cir. 1991).
6th Circuit holds that 21 U.S.C. § 841(b) is not a separate offense, but sets forth penalty provisions only. (245) The indictment alleged that defendants conspired to distribute five kilos of cocaine. The district judge instructed the jury that under 21 U.S.C. § 841(b) it could return a verdict convicting defendants of conspiring to distribute five kilos of cocaine or the “lesser included” offenses of 500 grams or more. The jury found defendants guilty of the lesser amount. Nevertheless the court found by a preponderance of evidence that the crime involved five kilos, but sentenced according to a base level calculated at 500 grams, reasoning it was bound by the jury verdict. The 6th Circuit reversed, holding that 21 U.S.C. § 841(b) is a penalty provision only and does not establish a separate offense. The District Court erred in treating 21 U.S.C. § 841(b) as a statute involving lesser included offenses and in considering itself bound by the jury findings. U.S. v. Moreno, 899 F.2d 465 (6th Cir. 1990).
7th Circuit says court complied with § 851 where five of defendant’s prior convictions were more than five years old. (245) Defendant was convicted of drug offenses, and sentenced to 576 months in prison, based in part on his prior convictions. He argued that the district court failed to comply with the procedural requirements of 21 U.S.C. § 851(b), which requires that the court “after conviction but before pronouncement of sentence inquire of the [defendant] … whether he affirms or denies that he has been previously convicted as alleged in the information.” The Seventh Circuit ruled that defendant was barred from challenging the validity of five of his prior convictions. Section 851(e) says that “No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction.” Five of the seven felony drug convictions listed in the § 851(a) information occurred more than five years before the date the information was filed. Only one such conviction was needed to trigger § 841(b)(1)(B). U.S. v. Cheek, 740 F.3d 440 (7th Cir. 2014).
7th Circuit remands cocaine case to decide if court would impose different sentence under FSA. (245) Defendant pled guilty to cocaine base charges, and was sentenced to 121 months, at the low end of the guideline range, and just above what the court believed to be the statutory minimum term of ten years. Although defendant was sentenced after the enactment of the Fair Sentencing Act of 2010, the parties and the court assumed that the more favorable statutory penalties in the FSA did not apply because defendant’s offenses were complete before the FSA took effect. However, several months later, the Supreme Court held, in Dorsey v. U.S., 132 S.Ct. 2321 (2012), that the FSA applies to any defendant sentenced after its effective date, even if the offense was committed before the FSA’s enactment. The Seventh Circuit agreed that the FSA applied to defendant, and ordered a limited remand to ascertain whether the district court would sentence defendant differently knowing that he was subject to only a five-year statutory minimum term under the FSA. U.S. v. Currie, 739 F.3d 960 (7th Cir. 2014).
7th Circuit finds court adequately considered effect of increase for priors convictions. (245) Defendant pled guilty to distributing cocaine base and selling a firearm to a felon. The government sought enhanced punishment under 21 U.S.C. § 851 based on defendant’s three prior felony drug convictions, resulting in a guideline range of 262-327 months. The district court imposed a sentence of 240 months. Defendant argued that the district court committed procedural error when it failed to adequately consider the effect of § 851 in the calculation of his guideline range. The Seventh Circuit disagreed. The district court considered and rejected defendant’s argument. Defendant’s criminal record was “so bad and so replete with conduct of violence,” that a greater sentence was warranted. However, the court imposed a below-guideline sentence of 240 months “in major recognition of the nature of the crime, and the crack/powder disparity.” Nonetheless, the court found that a long sentence was necessary due to defendant’s extensive criminal history. Though the district court never explicitly addressed defendant’s § 851 argument, it did so implicitly, and performed the requisite analysis. U.S. v. Spiller, 732 F.3d 767 (7th Cir. 2013).
7th Circuit finds failure to apply Fair Sentencing Act was harmless. (245) Defendant pled guilty to crack cocaine charges. The court found that his guideline range was 151-188 months, and that he was subject to a mandatory minimum sentence of 120 months. The court sentenced defendant to 151 months. However, under Dorsey v. U.S., 132 S.Ct. 2321 (2012) (decided after defendant was sentenced), the court should have applied the reduced five-year mandatory minimum under the Fair Sentencing Act. Nonetheless, the Seventh Circuit held that any error was harmless because the properly-calculated guideline range of 151-188 months was above the erroneously-calculated 10-year minimum The district court rejected defendant’s motion for a downward variance after finding that he was “dishonest,” “manipulative,” and “very dangerous.” The court concluded that “this is a Guideline sentence,” and sentenced defendant to 151 months—the bottom of the range. Defendant did not object to the calculation of his guideline range, which incorporated the FSA’s 18-to-1 crack-powder ratio. U.S. v. Adigun, 703 F.3d 1014 (7th Cir. 2012).
7th Circuit says FSA did not apply to crack defendant sentenced before its effective date. (245) Defendant moved to reduce his sentence based on retroactive amendments to the crack cocaine guidelines and the Fair Sentencing Act. The district court denied the motion, ruling that the Fair Sentencing Act did not apply to defendant because he was sentenced long before the Act’s effective date. The Seventh Circuit agreed. The Supreme Court case cited by defendant, Dorsey v. U.S., did not provide any relief. Dorsey held only that “Congress intended the Fair Sentencing Act’s new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders.” The Act’s lower mandatory minimums do not apply to offenders who were sentenced before its effective date. U.S. v. Robinson, 697 F.3d 443 (7th Cir. 2012).
7th Circuit rules 20 years was only possible sentence where death resulted from drug offense. (245) Defendant gave her friend a fentanyl skin patch, and the friend died after ingesting it. The maximum penalty for distributing fentanyl, with no resulting death, was 20 years, with no minimum. 21 U.S.C. § 841(B) (1)(c). However, where death results, the sentence increases to a minimum of 20 years, and a maximum of life in prison. The district court here found that the government had proven by a preponderance of the evidence (but not beyond a reasonable doubt) that death resulted from defendant’s distribution of fentanyl. Nevertheless, the court imposed a 20-year sentence. The Seventh Circuit affirmed, ruling that the 20-year sentence was not only proper, but was the only sentence the district court could impose. A fact that increases the minimum penalty need only be proven by a preponderance of the evidence, so the court’s finding that death resulted from the distribution triggered the mandatory minimum 20-year sentence. However, because the government did not prove this fact beyond a reasonable doubt, the statutory maximum remained at 20 years. U.S. v. Krieger, 628 F.3d 857 (7th Cir. 2010).
7th Circuit finds incorrect enhancement of minimum supervised release term was not plain error. (245) Defendant pled guilty to distributing heroin based on a single sale. The government filed an information to enhance the maximum prison term from 20 to 30 years and the minimum term of supervised release from three to six years based on a “prior conviction” for a felony drug offense. See 21 U.S.C. §§ 841(b)(1) (C), 851(a). The supposed “prior offense” was another heroin sale that occurred several days before the current offense. However, defendant was still waiting to be sentenced in state court for this offense when the district court sentenced him in this case to 151 months in prison and six years of supervised release. Under § 851(c)(2), absent a showing of good cause, “[a]ny challenge to a prior conviction, not raised by response to the information before an increased sentence is imposed … shall be waived ….” The Seventh Circuit granted counsel’s motion to withdraw and dismissed the appeal as frivolous. Even if § 851(c)(2) did not apply, defendant could not meet the plain error standard. With or without the erroneous information, the district court could still have imposed a supervised release term of six years or longer. U.S. v. Webster, 628 F.3d 343 (7th Cir. 2010).
7th Circuit affirms despite government’s failure to file § 851 information alleging prior conviction. (245) A jury convicted defendant on cocaine charges involving over five kilograms of cocaine. Because this was defendant’s second felony drug conviction, the drug quantity finding triggered a mandatory minimum sentence of 20 years. However, the government failed to file an information under 21 U.S.C. § 851, which would have given defendant notice of its intent to seek an enhanced penalty. The Seventh Circuit held that reversal for plain error was not warranted. Even without a prior conviction, defendant faced a statutory sentencing range of 10 years to life. He did not contest the government’s failure to comply with § 851 until he appealed. Although § 851 was violated, there was no prejudice. The two main purposes of the § 851 information requirement are to give a defendant an opportunity to contest the accuracy of his prior conviction and to inform his decision on whether to plead guilty or proceed to trial. Here, defendant was well aware of the prior conviction since it was the subject of a Rule 404(b) pretrial debate. Moreover, defendant did not plead guilty and was convicted after a trial. U.S. v. Lewis, 597 F.3d 1345 (7th Cir. 2010).
7th Circuit refuses to deduct discharged state prison sentence from mandatory sentence. (245) Defendant was convicted of drug charges carrying a 10-year mandatory minimum sentence. He had previously been convicted in state court of a drug offense that the parties agreed was “relevant conduct” in the federal prosecution. Although defendant was released on parole from the state sentence before being sentenced for the federal offense, he argued that the 18 months he served in state prison should be deducted from his 10-year mandatory minimum. The Seventh Circuit disagreed. A defendant may be given a sentence below the statutory minimum only if he either has given substantial assistance to the government, or has satisfied specified criteria in the so-called safety valve provision. Neither ground was available to defendant. The district court could have imposed a concurrent sentence if defendant had not already been released from statute custody, see § 5G1.3(b), but since he had, there was no sentence to make his federal sentence concurrent with. Although a note to § 5G1.3(b) permits a court to depart to take into account a discharged sentence, that path was blocked by the mandatory minimum. U.S. v. Cruz, 595 F.3d 744 (7th Cir. 2010).
7th Circuit upholds mandatory minimum based on foreseeable drug quantity sold by conspirators. (245) Defendant pled guilty to conspiring to possess with intent to distribute heroin and crack, and firearms charges. The district court found that that defendant was subject to a 120-month mandatory minimum sentence, applicable under §841(b)(1)(A)(iii) to offenses involving at least 1,000 grams of heroin or 50 grams of crack. The Seventh Circuit upheld the application of the mandatory minimum based on the amount of heroin defendant could reasonably foresee was involved in the conspiracy. To avoid the mandatory minimum, defendant would have to show that he could not have foreseen that transactions in furtherance of the conspiracy would involve at least one kilogram of heroin or at least 50 grams of crack. Defendant conceded that the overall conspiracy involved at least one kilogram of heroin and at least 50 grams of crack, and he conceded that 960 grams of heroin were sold at the drug houses while he was present. It would be frivolous for defendant to argue that he could not have foreseen that other conspirators would sell another 40 grams of heroin on the days that he was not present. U.S. v. Easter, 553 F.3d 519 (7th Cir. 2009).
7th Circuit rejects §3582(c)(2) reduction motion where sentence was mandatory minimum. (245) Defendant was convicted of crack charges, resulting in a guideline range of 87-108 months. However, a prior felony drug conviction subjected her to a statutory minimum sentence of 120 months, and the court sentenced her to the required minimum. Less than a year later, in response to the government’s Rule 35(b) motion, the court resentenced her to 90 months. Defendant later moved under 18 U.S.C. §3582(c)(2) for a further sentence reduction based on Amendment 706, which lowered the base offense level for crack cocaine offenses. The Seventh Circuit held that defendant was ineligible for resentencing under §3582(c)(2) because her sentence was not based on a sentencing range that Amendment 706 had subsequently lowered. Defendant’s initial guidelines calculation became academic once the statutory minimum was factored in. The fact that the court later reduced her sentence under Rule 35(b) did not vest the court with jurisdiction under §3582(c)(2). The court used her original statutory minimum sentence as its starting point for issuing the reduction. U.S. v. Poole, 550 F.3d 676 (7th Cir. 2008).
7th Circuit reverses drug sentence that ignored YCA conviction. (245) The government sought an enhanced sentence under 21 U.S.C. § 841(b)(1)(a)(vii) based on defendant’s two prior drug felonies, including a 1974 conviction in which an Arizona federal court sentenced defendant to two years’ probation under the Federal Youth Corrections Act. Defendant believed this conviction would be set aside automatically upon successful completion of his probation. But in fact, only an early discharge of probation had this effect. Because defendant’s probation was not discharged early, his only recourse after he completed his probation was to petition the Arizona court to grant him an early unconditional discharge and set aside his conviction. In the current case, the district court postponed defendant’s sentencing so he could seek relief from the Arizona district court. After five months with no ruling, the court decided to proceed with sentencing but disregarded the 1974 conviction for purposes of § 841(b)(1)(A). The Seventh Circuit reversed, holding that the district court was not free to ignore the YCA conviction. The court that imposed a sentence under the YCA should be the one to exercise the discretion afforded by the Act. Defendant’s efforts amounted to a collateral attack on his prior conviction. Section § 851(e) bars any collateral challenge to a prior conviction which occurred more than five years earlier. U.S. v. Woolsey, 535 F.3d 540 (7th Cir. 2008).
7th Circuit upholds use of offense level 43 as starting point for downward departure from life sentence. (245) Defendant was convicted of drug charges and, based on his two previous felony drug offenses, was subject to a mandatory minimum sentence of life imprisonment under 21 U.S.C. § 841(B)(1)(a). The government moved under 18 U.S.C. § 3553(e) for a downward departure from the mandatory minimum. The district court granted the departure, and following the government’s proposed reduction of four guideline ranges, reduced his offense level from level 43 to 34. The court then imposed a 262-month sentence. Defendant argued that the court erred in choosing level 43 as the starting point for its departure instead of 37, which is associated with the 360-months to life range in a criminal history category of VI. The Seventh Circuit held that the court’s decision to depart from defendant’s mandatory life sentence by starting at offense level 43 was proper. The guidelines go a step beyond the 360-months to life range and provide for a range of “life.” Because defendant was subject to the longest sentence a defendant can receive under the guidelines, his corresponding guideline range should reflect the same. U.S. v. Nelson, 491 F.3d 344 (7th Cir. 2007).
7th Circuit says Booker did not give courts discretion to decide what counts as prior felony drug conviction for mandatory minimum purposes. (245) A person who distributes more than 50 grams of crack “after two or more prior convictions for a felony drug offense have become final” must be sentenced to life imprisonment. 21 U.S.C. § 841(b)(1)(A). Although defendant had two state drug-felony convictions, the district judge declined to impose the statutory penalty. He stated that because each prior episode involved small amounts, treating defendant as having two convictions would overstate the seriousness of his criminal history. In addition the judge opined that U.S. v. Booker, 543 U.S. 220 (2005) gave him the discretion to “decide what should be counted as a prior felony drug conviction” – and though both offenses were felonies under state law, they were not serious enough to count as drug felonies. The Seventh Circuit reversed, holding that the court was required to impose the mandatory minimum sentence. Booker had nothing to do with recidivist sentencing. Prior convictions that affect mandatory minimum sentences are not treated like “criminal history” under the Sentencing Guidelines. Recidivist provisions set sentencing floors, and judges must implement the legislative decision whether or not they deem defendant’s criminal record serious enough. The point of such statutes is to limit judicial discretion rather than appeal to the court’s sense of justice. U.S. v. Cannon, 429 F.3d 1158 (7th Cir. 2005).
7th Circuit reaffirms that cocaine base mandatory minimums apply only to offenses involving crack cocaine. (245) All crack is cocaine base but not all cocaine base is crack. In U.S. v. Booker, 70 F.3d 488 (7th Cir. 1995), the Seventh Circuit held that the enhanced penalty in 21 U.S.C. § 841(b) and the Sentencing Guidelines apply to crack cocaine, and the lesser penalties apply to all other forms of cocaine. Nonetheless, the district court concluded that the applicability of the statutory 10-year minimum sentence to an offense involving “cocaine base” that is not “crack” was an open question in the circuit, and ruled that the mandatory minimum applies to offenses involving any form of cocaine base. The court found that the controlled substance in this case was not “crack” but was “cocaine base,” and imposed the mandatory ten-year sentence. The Seventh Circuit reversed, reaffirming its ruling in Booker that for purposes of the enhanced penalties in the guidelines and the statutes, “cocaine base” means “crack cocaine.” The panel acknowledged “a significant division” among the circuits on this issue, with no clear majority rule, and suggested Congress or the Supreme Court need to resolve the issue. U.S. v. Edwards, 397 F.3d 570 (7th Cir. 2005).
7th Circuit holds that only actual meth present in solution could be counted for mandatory minimum purposes. (245) Defendant argued that the district court erred in subjecting him to a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(viii) by including in the drug quantity for sentencing purposes 825 grams of a solution generated during a thwarted attempt to produce methamphetamine. The 7th Circuit agreed. Only usable or consumable mixtures or substances can be included in drug quantity under § 841(b). In Chapman v. U.S., 500 U.S. 453 (1991), the Supreme Court found that Congress had adopted a market-oriented” approach to punishing drug trafficking, and that carrier mediums and cutting agents that aid in the distribution of drugs should be included in the drug weight. The Seventh Circuit and six other circuits have interpreted Chapman’s “market-oriented” approach to require only usable or consumable mixtures or substances be included in the drug quantity for sentencing purposes; Chapman does not mandate the inclusion of unusable, uningestible or unmarketable substances. See U.S. v. Johnson, 999 F.2d 1192 (7th Cir. 1993). The panel rejected the argument that the market-oriented approach does not apply to methamphetamine, even though Congress allows sentencing based on the pure amount of meth as an alternative to weighing a mixture containing the meth. U.S. v. Stewart, 361 F.3d 373 (7th Cir. 2004).
7th Circuit holds that conviction for which defendant received probation triggered mandatory minimum. (245) Defendant was convicted of distributing 50 or more grams of cocaine base. Based on a prior drug conviction, the district court found that he was subject to a mandatory minimum sentence of 20 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(B). Defendant had been found guilty of felony possession of a controlled substance in 1994, and an Illinois court sentenced him to two years’ probation under 720 Ill. Comp. Stat. 570/410. His probation was discharged in March 1997. Under federal law, a sentence of probation under 720 Ill. Comp. Stat. 570/410 constitutes a conviction. Further, the Supreme Court made clear in Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983), that expunction does not alter or remove the existence of a prior conviction. The Seventh Circuit affirmed defendant’s receipt of the 20-year mandatory minimum. The fact that he received probation that was later discharged did not alter the fact that he possessed a prior drug-related felony conviction qualifying him for the § 841(b)(1)(B) enhancement. U.S. v. Graham, 315 F.3d 777 (7th Cir. 2003).
7th Circuit reverses itself and holds that § 851 is not jurisdictional. (245) In order to impose an enhanced sentence under 21 U.S.C. § 841 based on a prior conviction, § 851(a) requires the government “before trial, or before entry of a plea of guilty” to file an information with the court, and to serve a copy of the information on defendant, stating in writing the previous convictions to be relied upon. Several circuits, including the Seventh Circuit, have previously called § 851(a)’s notice requirements “jurisdictional.” See, e.g., U.S. v. Belanger, 970 F.2d 416 (7th Cir. 1992); U.S. v. Hill, 142 F.3d 305 (6th Cir. 1998). However, this assertion is generally made in passing without analysis. All of the courts that have offered analysis have held that § 851(a)’s notice requirements are not jurisdictional. See, e.g., U.S. v. Mooring, 287 F.3d 725 (8th Cir. 2002). After reconsidering the issue, the Seventh Circuit held that § 851(a)’s procedural requirements are not jurisdictional, and expressly overruled its prior cases holding otherwise. In this case, the government’s service of the information satisfied § 851(a). The government filed the information with the court and mailed it to defense counsel two days before trial. Under Fed. R. Civ. P. 5(b), service by mail is complete on mailing. Moreover, defendant had actual knowledge of the enhancement before trial. U.S. v. Ceballos, 302 F.3d 679 (7th Cir. 2002).
7th Circuit holds that written plea agreement provided adequate notice of mandatory life sentence. (245) Defendant argued that the trial judge did not have jurisdiction to impose a mandatory life sentence based upon two prior felony drug convictions because the government failed to provide notice under 21 U.S.C. § 851(a)(1). The Seventh Circuit ruled that defendant’s written plea agreement provided adequate notice under § 851. The first page of the agreement said “[b]ecause the defendant has two prior felony drug convictions in Sangamon County, Illinois case numbers 93-CF-789 and 95-CF-413 at the time of the offense, the potential penalties are … mandatory life in prison ….” Further, defendant “acknowledge[d] that by his guilty plea, the Court will be required to impose a sentence of life imprisonment.” This language clearly provided defendant with notice, in writing, that he faced a life sentence based on his specifically identified prior state felony drug convictions. The government also supplemented its written notice by orally advising defendant at the time of his plea hearing that he faced a mandatory life sentence based on these prior convictions. U.S. v. Lawuary, 211 F.3d 372 (7th Cir. 2000), overruled on other grounds, U.S. v. Ceballos, 302 F.3d 679 (7th Cir. 2002).
7th Circuit rejects claim that government filed § 851 information based on improper factors. (245) Defendant argued that the government filed a new § 851 information to punish him for refusing to cooperate. The Seventh Circuit rejected this unsubstantiated claim. A prosecutor’s discretion to decide whether a defendant will be subject to an enhanced statutory maximum is similar to a prosecutor’s discretion in deciding what charges to bring. The exercise of such discretion is appropriate, so long as it is not based upon improper factors. Defendant’s broad unsubstantiated claims that the government was motivated by a desire to punish him from remaining silent did not establish that the government improperly filed a new information. U.S. v. Jackson, 189 F.3d 655 (7th Cir. 1999), overruled on other grounds, U.S. v. Ceballos, 302 F.3d 679 (7th Cir. 2002).
7th Circuit holds that defendant need not know of or foresee cocaine hidden in marijuana bundles. (245) State troopers found in the truck defendant was driving 22 bundles of marijuana weighing 315 kilograms. A few weeks later, a crime lab technician found about six kilograms of cocaine concealed inside the marijuana bundles. Defendant argued that the district court should not have considered the cocaine when it sentenced him because he did not know or reasonably foresee that it was hidden in the marijuana. The Seventh Circuit held that it was not necessary that defendant knew or foresaw that cocaine was in the truck, as long as he knew he possessed a controlled substance, and the mandatory minimum for cocaine was properly applied. Defendant admitted to possessing 315 kilograms of marijuana, rendering him eligible for five to 40 years imprisonment. The judge sentenced him to 10 years, well below the statutory maximum. Defendant’s knowledge, or lack of knowledge, of the cocaine had no effect on his sentence. The failure to specify drug quantity and type in the indictment did not present an Apprendi problem because defendant’s sentence was well below the statutory maximum for possession with intent to distribute 315 kilograms of marijuana. U.S. v. Martinez, 301 F.3d 860 (7th Cir. 2002).
7th Circuit holds Apprendi does not apply to mandatory minimum sentences. (245) Because the indictment did not charge defendant with brandishing his firearm during the bank robbery, the district court believed that Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), precluded it from imposing the seven-year mandatory minimum sentence prescribed by 18 U.S.C. § 924(c)(1)(A)(ii). Instead, the court imposed only a five-year sentence on that count. The government appealed, and the Seventh Circuit reversed, noting that Apprendi’s inapplicability to statutory mandatory minimum sentences is “well settled in this circuit, as well as many of our sister circuits.” See U.S. v. Rodgers, 245 F.3d 961, 967-68 (7th Cir. 2001). The panel acknowledged that the Sixth Circuit has held that Apprendi applies to mandatory minimum sentences. U.S. v. Ramirez, 242 F.3d 348, 350 (6th Cir. 2001), but reaffirmed the Seventh Circuit’s rule that Apprendi is not implicated when the actual sentence imposed is less severe than the statutory maximum. U.S. v. Watts, 256 F.3d 630 (7th Cir. 2001).
7th Circuit reaffirms that Apprendi does not apply to mandatory minimum sentences. (245) Defendant received a life sentence for operating a continuing criminal enterprise, among other crimes, in violation of 21 U.S.C. § 848. He argued that his sentence violated due process because the jury did not conclude that the evidence established beyond a reasonable doubt the events that led to the life terms. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The Seventh Circuit found that Apprendi was inapplicable, because the maximum sentence for every § 848 violation is life. This circuit has previously rejected defendant’s contention that Apprendi governs the application of mandatory minimums. See U.S. v. Smith, 223 F.3d 554 (7th Cir. 2000). Sixth Circuit cases holding to the contrary have ignored McMillan v. Pennsylvania, 477 U.S. 79 (1986), which held that judges may find, by a preponderance of the evidence, facts that trigger mandatory minimum penalties. U.S. v. Hill, 252 F.3d 919 (7th Cir. 2001).
7th Circuit holds that Apprendi does not apply to mandatory minimums. (245) The judge found, by a preponderance of the evidence, that defendant was responsible for the distribution of 250 grams of crack and 349 grams of powder cocaine. This triggered a mandatory minimum sentence of ten years under 21 U.S.C. § 841(b)(1) (A)(iii). Based on Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant argued that the drug quantity, because it had the effect of imposing a floor on the length of time he would spend in prison, constituted an element of the offense that the government was required to prove to the jury beyond a reasonable doubt. The Seventh Circuit held that Apprendi did not apply to the application of mandatory minimum sentences. In McMillan v. Pennsylvania, 477 U.S. 79 (1986), which Apprendi expressly declined to overrule, the Supreme Court upheld a mandatory minimum sentence based on a judicial finding, by a preponderance of the evidence, that the defendant possessed a gun. Apprendi limits “only those factual determinations that potentially will increase the statutory maximum sentence to which the defendant is subject.” U.S. v. Rodgers, 245 F.3d 961 (7th Cir. 2001).
7th Circuit agrees defendant was “principal” in CCE even though leadership was brief. (245) Defendant was the top unincarcerated member of the Gangster Disciples for one month and sat as a board member from April to September 1996. The Seventh Circuit upheld the finding that defendant was “principal” under the continuing criminal enterprise statute, 21 U.S.C. § 848(b), even though his leadership only lasted a short time. A seat on the Board of Directors was the highest attainable position, subordinate only to the leader. Previous cases have held that individuals holding the rank of Governor were “principals” for sentencing purposes, see U.S. v. Jackson, 207 F.3d 910 (7th Cir. 2000), judgment vacated in part, 121 S.Ct. 376, 148 (2000). Thus, the district court’s finding that board members, who ranked above Governors, were also principals, was unexceptional. Although defendant’s “leadership may have been relatively brief,” defendant cited no case law that makes it legal error to fail to discount a principal’s sentence if his period of leadership was brief. U.S. v. Wilson, 237 F.3d 827 (7th Cir. 2001).
7th Circuit holds 848(b) is a mandatory minimum sentence unaffected by Apprendi. (245) Defendants, leaders of the Gangster Disciples street gang, were convicted of operating a “continuing criminal enterprise” in violation of 21 U.S.C. § 848. Subsection (a) authorizes imprisonment from 30 years to life, and subsection (b) simply eliminates anything in that range below a life sentence for the principal administrator, organizer or leader when certain quantities or value of drugs are involved. The Seventh Circuit held that defendants’ sentences under subsection (b) did not constitute “increased punishment” so as to trigger the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The panel noted that Apprendi did not overrule McMillan v. Pennsylvania, 477 U.S. 79 (1986), which held that factors on which a minimum mandatory sentence is based need not be submitted to the jury. The panel ruled that the rationale of McMillan “applies with equal force” to § 848. The statute simply operates to divest the judge of discretion to impose any sentence less than life; it does not authorize a sentence in excess of that otherwise allowed for the offense. Accordingly, it was not necessary to charge the enhancing factors in the indictment nor to submit them to the jury. U.S. v. Smith, 223 F.3d 554 (7th Cir. 2000).
7th Circuit holds that failure to advise defendant of mandatory minimum sentence was not harmless error. (245) Defendant pled guilty to a one-count indictment charging him with conspiracy to distribute marijuana. The district court sentenced him to 235 months in prison. Defendant complained that the district court failed to adequately inform him of the applicable mandatory minimum sentence. The Seventh Circuit agreed, and ruled that this was not harmless error. While the court to careful to advise defendant of his potential statutory maximum and his high-end sentence under the guidelines, there was no mention of a mandatory minimum sentence. Moreover, there was nothing to suggest that defendant was ever alerted to the mandatory minimum sentence. Defendant’s attorney told him that his guideline range could be as low as 70 to 108 months. The error was not harmless. Because the disparity between what defendant knew to be the lowest sentence he could receive (70 months) and the undisclosed 10-year mandatory minimum sentence (120 months) was so great, defendant’s decision to plead guilty could not have been fully informed. U.S. v. Fernandez, 205 F.3d 1020 (7th Cir. 2000).
7th Circuit holds that § 851’s indictment requirement applies to current offense, not prior convictions. (245) In order to impose an enhanced sentence based on prior drug convictions, 21 U.S.C. § 851(a)(1) requires the government to file an information listing the previous convictions. Section 851(a)(2) provides that an information may not be filed in certain circumstances “unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” The Seventh Circuit held that § 851’s indictment requirement applies to the current conviction for which the enhanced sentence is sought, not to prior convictions. All the other circuits to consider this issue agree with this conclusion. See, e.g. U.S. v. Adams, 914 F.2d 1404 (10th Cir. 1990). U.S. v. Jackson, 189 F.3d 502 (7th Cir. 1999).
7th Circuit says court may not depart from mandatory life sentence absent government motion or safety valve. (245) Defendant argued that, although his life sentence “technically conform[s] to the law,” it was unjust and should be vacated because there was insufficient evidence to support his convictions, his case was tried before an all-white jury, and his criminal history was relatively modest. The Seventh Circuit held that a downward departure was not possible because defendant’s life sentence was mandated by 21 U.S.C. § 841(b)(1)(A). A defendant can only receive a sentence below the statutory minimum if the government moves for a substantial assistance departure under 18 U.S.C. § 3553(e), or if the defendant qualifies for safety valve protection under 18 U.S.C. § 3553(f). U.S. v. Smallwood, 188 F.3d 905 (7th Cir. 1999).
7th Circuit holds that seeking enhanced § 841 penalties did not breach agreement. (245) Defendant was originally charged with various drug offenses. The government filed a § 851 information advising defendant of its intent to seek an enhanced sentence under § 841(b) based on defendant’s prior felony drug conviction. Defendant later pled guilty to two of the drug counts. The district court enhanced his sentence based on the prior felony conviction. Defendant argued that the government misled him into believing that it would not seek an enhancement if he pled guilty. The Seventh Circuit upheld the enhancement since there was no evidence that defendant and the government had such an agreement. The plea agreement contained no agreement by the government to withdraw the § 851 information on account of defendant’s guilty plea. The agreement specifically stated that there was no agreement as to defendant’s sentence. When defendant entered his guilty plea, the district court’s explicit comments indicated that the enhancement would apply. Although defendant’s attorney testified that he understood that the government would not seek the enhancement if defendant pled guilty, he also admitted that the agreement with the government was not as clear as what [he] thought [the] understanding and agreement was.” U.S. v. Jackson, 121 F.3d 316 (7th Cir. 1997).
7th Circuit rejects constitutional challenges to mandatory minimum 240-month sentence. (245) Although defendant had a guideline range of 188-235 months, he was subject to a mandatory minimum 240-month sentence for his drug offense. The Seventh Circuit rejected defendant’s argument that the mandatory 240-month sentence was cruel and unusual punishment under the Eighth Amendment or violated the due process clause of the Fifth Amendment. These claims were previously considered and rejected by the Supreme Court in Harmelin v. Michigan, 501 U.S. 957 (1991) and Chapman v. United States, 500 U.S. 453 (1991). U.S. v. Magana, 118 F.3d 1173 (7th Cir. 1997).
7th Circuit upholds limiting collateral attacks on priors used for enhancement. (245) By its terms, 21 U.S.C. § 851(e) bars collateral attacks on prior convictions that are more than five years old. Defendant received a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) based on two prior state convictions. The district court refused to permit him to collaterally challenge his 1985 conviction because it was more than five years old. On appeal, the Seventh Circuit affirmed. Under Custis v. U.S., there is no due process right to challenge the validity of a prior conviction based on ineffective assistance of counsel, although priors may be challenged where the defendant did not receive any counsel at all. The statute of limitations in § 851 does not violate due process where the prior convictions are used for sentencing enhancement purposes. U.S. v. Magana, 118 F.3d 1173 (7th Cir. 1997).
7th Circuit applies mandatory minimum where amount of meth in mixture exceeded 10 grams. (245) Section 841(b)(1)(B)(viii) provides for a five year mandatory minimum sentence for offenses involving 10 grams or more of methamphetamine, or 100 grams or more of a mixture or substance containing methamphetamine. Defendant possessed 40 grams of a methamphetamine mixture that was 79% drug and 21% cut. He therefore possessed more than 10 grams of methamphetamine, but less than 100 grams of a methamphetamine mixture. Defendant contended that he did not possess more than 10 grams of methamphetamine because that drug was mixed with inert substances, but not enough to yield more than 100 grams of mixture. The Seventh Circuit held that the minimum sentence applies if the amount of active drug used to create the mixture exceeds 10 grams. Methamphetamine need not be “pure” to count as methamphetamine. Under defendant’s scenario, a distributor with 99 grams of 99% pure methamphetamine would not face a minimum sentence while a distributor holding 10 grams of 100% methamphetamine would go to jail for at least 5 years. U.S. v. Blake, 116 F.3d 1202 (7th Cir. 1997).
7th Circuit finds defendant responsible for more than 50 grams of cocaine base. (245) The district court held defendant responsible for more than 50 grams of cocaine base, and sentenced him to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1) (A). The Seventh Circuit found that the record supported the court’s finding that defendant was involved in a conspiracy to possess and distribute at least 50 grams of cocaine base. The standard for finding the quantity of drugs “involved” in a conspiracy under § 841(b)(1)(A) differs from the relevant conduct approach. While the guidelines look to behavior that was part of the same course of conduct as the offense of conviction, the statute only looks to the conduct which actually resulted in a conviction under that statute. The inquiries, however, are quite similar under the conspiracy statute, in which each conspirator is responsible for drug amounts handled by co-conspirators if those amounts were foreseeable to him and in furtherance of the jointly undertaken criminal activity to which he agreed. U.S. v. Lewis, 110 F.3d 417 (7th Cir. 1997).
7th Circuit upholds constitutionality of “three strikes” law. (245) Defendant was convicted of bank robbery. Because he had at least two previous convictions for “serious violent felonies,” the district court imposed a mandatory life sentence under 18 U.S.C. § 3559(c)(1), the so-called “three strikes” law. The Seventh Circuit rejected defendant’s constitutional challenges to the three strikes law. Life imprisonment for a repeat bank robber whose record also included murder and attempted murder is not cruel and unusual punishment. Recidivist statutes do not violate the ex post facto clause or constitute double jeopardy. There was no factual basis for claim that the law had a disparate impact on minorities. Moreover, the equal protection clause is concerned with purposeful discrimination rather than proportional outcomes. The law also does not violate separation of powers principles. The present bank robbery was a serious violent felony, since it is included in § 3559(c)(2). Section 3559(c)(3)(A) only excludes robberies where there is no firearm or threat of firearm. Defendant threatened to use a gun. U.S. v. Washington, 109 F.3d 335 (7th Cir. 1997).
7th Circuit finds incorrect advice about mandatory minimum and supervised release was not ineffective assistance. (245) Defendant contended that he received ineffective assistance when his trial counsel incorrectly advised him that there was a ten‑year mandatory minimum. The Seventh Circuit found that any such error did not amount to ineffective assistance because it did not prejudice defendant. Defendant knew that under the guidelines the lowest sentence he could receive was 12-1/2 years. The misinformation he allegedly received was therefore irrelevant. Trial counsel’s failure to inform defendant that a term of supervised release was applicable was also not prejudicial since defendant’s sentence, when combined with the term of supervised release, was within the maximum sentence made known to defendant when he entered his plea. The district court’s failure to correctly advise him at his plea hearing did violate Rule 11, but the errors were harmless. McCleese v. U.S., 75 F.3d 1174 (7th Cir. 1996).
7th Circuit says § 851 notice naming wrong individual was adequate. (245) The government sent defendant a copy of its notice under 21 U.S.C. § 851 seeking an enhanced statutory sentence based on defendant’s 1984 drug conviction. However, the notice inadvertently stated that it was to give notice to another defendant. The Seventh Circuit held that the § 851 notice was adequate, because it was actually sent to and received by defendant. Moreover, the filing correctly stated the government’s intent to seek an enhanced penalty in the event defendant was convicted in the case. Thus, defendant received actual notice of the government’s intent to seek enhanced penalties against him. U.S. v. Tringali, 71 F.3d 1375 (7th Cir. 1995).
7th Circuit says standard for finding drug quantity under statute is different from relevant conduct. (245) Defendant was subject to a mandatory life sentence based on the court’s finding that his offense involved more than 1000 kilograms of marijuana. The Seventh Circuit affirmed, noting that the standard for determining the quantity of drugs “involved” in a conspiracy for mandatory minimum purposes is not precisely the same as the “relevant conduct” approach used in determining drug quantities under the guidelines. While the guidelines look to behavior that was part of the same course of conduct as the offense of conviction, the statute looks “only to the conduct which actually resulted in a conviction under that statute.” In conspiracy cases, the inquiries are quite similar, but under the statute a court should actually follow Pinkerton v. U.S., 328 U.S. 640 (1946). U.S. v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995).
7th Circuit says Kikumura does not alter burden of proof in drug case. (245) Defendant was convicted of a drug conspiracy with two prior felony drug convictions. The statute, 21 U.S.C. § 841(b)(1)(B), requires life imprisonment for such a defendant if the offense involved more than 1000 kilograms of marijuana. Relying on U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), defendant argued that the impact of drug quantity on the sentence was so great as to require proof beyond a reasonable doubt. The Seventh Circuit held that Kikumura did not alter the traditional burden of proof for drug quantity determinations. Although due process considerations might, at some point, require a greater standard of proof, the Kikumura rationale did not aptly apply to drug quantity determinations under the guidelines. The sentencing range for a drug offense depends on the quantity involved. The milestones are progressive, and none of the incremental increases in sentence is sufficiently extraordinary by itself. U.S. v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995).
7th Circuit upholds § 851(e)’s bar on collateral attacks on convictions more than five years old. (245) Defendant was convicted of drug charges. Based on a prior conviction, the district court found he was subject to a 10-year mandatory minimum sentence. Defendant challenged the constitutionality of 21 U.S.C. § 851(e), which bars a collateral attack on a prior conviction that is more than five years old. The Seventh Circuit upheld § 851(e). Defendant was not entitled to review under circuit cases that allowed collateral review because the Supreme Court’s decision in Custis v. U.S., 511 U.S. 485 (1994) limits these cases. Under Custis, a prior conviction may be collaterally attacked at sentencing only where the defendant claims that he was deprived of counsel. Defendant did not make such a claim. Section 851(e) is not arbitrary, but is rationally based to eliminate potential administrative difficulties arising form challenges to old convictions. Section 851(e) does not lower the burden of proof on an element of the offense. Section 841’s provision requiring a doubling of the mandatory minimum sentence where there is a prior felony drug conviction is a sentencing enhancement provision and not a separate substantive offense. U.S. v. Arango-Montoya, 61 F.3d 1331 (7th Cir. 1995).
7th Circuit holds that court adequately complied with Rule 11 at plea hearing. (245) Defendant argued that the court did not comply with Rule 11 at his plea hearing. The Seventh Circuit disagreed, finding the record passed muster under Rule 11 without the need to engage in a harmless error analysis. Knowledge of any applicable mandatory minimum is critically important for a defendant to understand. Defendant’s knowledge that he was subject to a 10-year mandatory minimum was reflected in the record. U.S. v. Mitchell, 58 F.3d 1221 (7th Cir. 1995).
7th Circuit upholds 10-year mandatory minimum despite five-year minimum in plea agreement. (245) The Seventh Circuit upheld a mandatory minimum 10-year sentence even though defendant’s plea agreement provided for a mandatory minimum sentence of five years. The plea agreement was made under Rule 11(e)(1)(B), and therefore was not binding on the court. The court was free to impose any sentence it considered proper in light of defendant’s conduct. The district judge carefully cautioned defendant at both the plea hearing and the sentencing hearing that he was not required to accept the government’s sentencing recommendation. The 10-year sentence was well within the five to 40 year range discussed in the agreement. Most importantly, when faced with the mandatory minimum 10-year sentence, the judge gave defendant the chance to withdraw her plea and go to trial. She voluntarily chose to persist in her plea of guilty. U.S. v. Eppinger, 49 F.3d 1244 (7th Cir. 1995).
7th Circuit uses actual weight of LSD and its carrier medium for mandatory minimum purposes. (245) Defendant was accountable for 3000 doses of LSD, which under the sentencing guidelines’ new formula of 0.4 milligrams per dose, resulted in a weight of 1.2 grams and a sentencing range of 46 to 57 months. However, the district court determined that total weight of the LSD distributed by defendant, including the blotter paper, was 12.589 grams, resulting in a mandatory minimum 120-month sentence. The Seventh Circuit, following its recent en banc decision in U.S. v. Neal, 46 F.3d 1405 (7th Cir. 1995) (en banc), affirmed. A court is required to use the actual weight of the LSD and its carrier medium to determine the applicability of a statutory mandatory minimum. U.S. v. Cichon, 48 F.3d 269 (7th Cir. 1995).
7th Circuit, en banc, holds guideline LSD amendment inapplicable to statutory minimum. (245) In Chapman v. U.S., 500 U.S. 453 (1991), the Supreme Court held that, for purposes of calculating statutory minimum sentences under 21 U.S.C. § 841(b)(1), the weight of the blotter paper containing LSD is included. On November 1, 1993, the Sentencing Commission amended guideline § 2D1.1 to set a uniform weight per dose of LSD, regardless of the weight of the carrier medium. The Seventh Circuit, en banc, held that this amendment affects only the calculation of defendant’s guideline base offense level, not the statutory minimum sentence. The Supreme Court has authoritatively construed “mixture or substance” in § 841(b)(1) to include the carrier medium. The Sentencing Commission cannot, and did not intend to, override Chapman. This dual sentencing scheme does not violate due process. There was no ambiguity that would require application of the rule of lenity. Judge Ripple, joined by Judges Cummings and Rovner, dissented. U.S. v. Neal, 46 F.3d 1405 (7th Cir. 1995) (en banc), aff’d Neal v. U.S., 516 U.S. 284, 116 S.Ct. 763 (1996).
7th Circuit approves mandatory life sentence based on uncharged conduct. (245) The district court found that defendant was responsible for at least 150 to 500 grams of cocaine base, and sentenced him to a mandatory life term under 21 U.S.C. § 841(b)(1)(A)(iii). Defendant argued that he should have been sentenced under subsection (B)(ii)(II), which applies to offenses involving over 500 grams of cocaine powder, because the indictment, jury instruction, and count of conviction all charged him with conspiring to distribute and possess cocaine and not crack. The 7th Circuit disagreed, since a court is required to consider types and quantities of drugs not specified in the indictment or count of conviction if they are part of the same course of conduct or common scheme or plan. The 50 grams of cocaine base for which defendant was sentenced was clearly part of the same conspiracy as that charged in the count of conviction. Once the district court found that more than 50 grams of crack were involved in the offense, it was required to impose the mandatory life sentence. U.S. v. Cooper, 39 F.3d 167 (7th Cir. 1994).
7th Circuit rules counsel was aware of mandatory minimum sentence. (245) In a 28 U.S.C. § 2255 motion, defendant argued that his counsel was ineffective and his plea was involuntary because his counsel was unaware that defendant faced a mandatory minimum 10-year sentence. The 7th Circuit concluded that counsel was aware of the mandatory minimum. Counsel acknowledged his awareness of the minimum before requesting a sentence below it. Although the court was without authority to grant such a sentence, no constitutional injury resulted from the request. Defendant also was aware of the 10-year minimum he was facing. The plea agreement stated that he faced this minimum penalty, defendant acknowledged that he had read and understood the agreement, and the district court advised defendant of the minimum and maximum penalties at the plea hearing. Soto v. U.S., 37 F.3d 252 (7th Cir. 1994).
7th Circuit says related state conviction may be prior offense for mandatory minimum purposes. (245) Defendant pled guilty to a drug conspiracy and received a mandatory minimum 20 year sentence based on a prior state drug possession conviction. He argued that the state conviction was not a “prior conviction for a felony drug offense” under § 841(b)(1)(A) because it was related to the instant conspiracy. The 7th Circuit held that even though the state drug offense “related,” it was also a prior felony drug offense since defendant actively participated in the present conspiracy for 18 months after the state conviction became final. Since the purpose of the mandatory minimum is to punish recidivism, it is more appropriate to focus on the degree of criminal activity that occurs after a defendant’s conviction for drug-related activity becomes final, rather than when the conspiracy began. U.S. v. Garcia, 32 F.3d 1017 (7th Cir. 1994).
7th Circuit says substantial assistance motion does not permit court to depart below mandatory minimum on other grounds. (245) Defendant argued that the district court erred in refusing to consider grounds for departure other than substantial assistance. The 7th Circuit found no error. At oral argument, defense counsel conceded that under recent caselaw, a court may only depart below a statutory mandatory minimum sentence for substantial assistance to authorities. Once the government files a motion under 18 U.S.C. § 3553(e), the court may not depart below the mandatory minimum sentence on any other ground except the defendant’s substantial assistance. U.S. v. DeMaio, 28 F.3d 588 (7th Cir. 1994).
7th Circuit upholds jurisdiction to hear appeal of mandatory minimum issue. (245) The government appealed the district court’s finding that defendant did not have the requisite prior conviction to enhance his sentence under § 841(b)(1)(B). Defendant argued that 21 U.S.C. § 851(d)(2), which provides for an appeal before sentencing, was the exclusive avenue for appellate review. The 7th Circuit found appellate jurisdiction under 18 U.S.C. § 3742(b)(1), which permits the United States to appeal from any sentence imposed in violation of law. When Congress enacted § 851(d)(2) a pre-sentence appeal made sense because there could be no post-sentence appeal by either side. U.S. v. Gomez, 24 F.3d 924 (7th Cir. 1994).
7th Circuit holds that federal law defines prior “conviction.” (245) The district court ruled that defendant’s prior Illinois offense did not qualify as a prior conviction for enhancement purposes under 21 U.S.C. § 841(b)(1)(B). Defendant had received a diversionary sentence which under Illinois law was discharged and dismissed upon completion. The 7th Circuit held that federal law, rather than state law, defines a prior “conviction.” The state’s effort to eliminate all civil disabilities connected to the sentence did not obliterate the conviction for purposes of federal law. U.S. v. Gomez, 24 F.3d 924 (7th Cir. 1994).
7th Circuit says “law of the case” prevented family circumstances departure below mandatory minimum. (245) The district court originally departed below the mandatory minimum to reflect defendant’s substantial assistance and unusual family circumstances. In the first appeal, the 7th Circuit reversed, ruling that the judge should not have considered defendant’s family circumstances. At resentencing, the district court explicitly refused to factor in defendant’s family circumstances. The 7th Circuit affirmed, ruling that an intervening change in the law did not require it to reexamine its previous holding. Although an amendment to section 5H1.6 authorized departures based on family circumstances, it did not affect the court’s holding that a departure from a statutory minimum sentence is only permitted based on assistance to the government. The court rejected the notion that once a downward departure from a statutory minimum sentence has been granted under 18 U.S.C. § 3553(e) or section 5K1.1, the sentence has been “opened” for departures based on additional grounds. U.S. v. Thomas, 11 F.3d 1392 (7th Cir. 1993).
7th Circuit refuses to consider minor role where defendant received mandatory minimum sentence. (245) Defendant challenged the district court’s refusal to grant her a minor role reduction under section 3B1.2. The 7th Circuit refused to consider the claim, since defendant received the mandatory minimum sentence required by statute. Therefore, a reduction in offense level would have been irrelevant. U.S. v. Ivory, 11 F.3d 1411 (7th Cir. 1993).
7th Circuit rules failure to give notice under § 851 was irrelevant under guidelines. (245) Defendant argued that the district court improperly enhanced his sentence for prior convictions without complying with the notice requirements of 21 U.S.C. § 851(b). The 7th Circuit agreed that the court did not comply with section 851(b), but found it irrelevant, since defendant was sentenced under the guidelines and received an enhanced sentence within the statutory range. The requirements of section 851(b) also did not apply to a defendant whose prior convictions occurred more than five years before the filing of the information. Section 851(e) prohibits a defendant from challenging a conviction that is more than five years old. U.S. v. Flores, 5 F.3d 1070 (7th Cir. 1993).
7th Circuit upholds crack-to-cocaine ratio against equal protection challenge. (245) Under 18 U.S.C. §841 and 2D1.1, one gram of cocaine base, or crack, is treated as the equivalent of 100 grams of cocaine. Defendant argued that this scheme violates equal protection because African-Americans disproportionately commit crack offenses. Concluding that defendant had not made the required showing of discriminatory purpose, the 7th Circuit rejected the challenge. That Congress has failed to repeal the statute despite its awareness of its disparate impact on African-Americans does not establish discriminatory purpose. U.S. v. Chandler, 996 F.2d 917 (7th Cir. 1993).
7th Circuit affirms refusal to depart from mandatory minimum sentence despite unfairness of sentence. (245) All of defendant’s more culpable co-conspirators pled guilty and provided valuable assistance to prosecutors. Consequently they received sentences substantially less than the mandatory minimum 10 years. One co-conspirator was allowed to plead to a charge that did not carry a minimum term and received four years’ probation. However, defendant, the least culpable co-conspirator, went to trial and was convicted of charges carrying a 10-year minimum. The 7th Circuit affirmed, but stated that cases such as this involving a “sentencing inversion” are “troubling.” The district court was without authority under section 5K2.0 to depart downward from a minimum sentence prescribed by statute. Judge Bauer dissented, finding insufficient evidence of defendant’s guilt. U.S. v. Brigham, 977 F.2d 317 (7th Cir. 1992).
7th Circuit affirms that two notices taken together satisfied section 851. (245) The government filed notice under 21 U.S.C. section 851 that a sentencing enhancement would be sought based upon defendant’s prior convictions. However the notice did not specify which prior convictions would be used. The government later filed a second notice stating that it intended to offer evidence of defendant’s two prior state felony drug convictions. The 7th Circuit affirmed that even though the first notice was defective and the second notice was filed for another reason, the two notices, taken together, satisfied the requirements of section 851. Section 851 does not specify the particular form which a notice of enhancement must take and the government’s filings, taken together, provided defendant with reasonable notice and an opportunity to be heard. U.S. v. Belanger, 970 F.2d 416 (7th Cir. 1992).
7th Circuit holds that 21 U.S.C. 851(a)(2) does not require prior conviction to be by indictment. (245) Defendant received a mandatory minimum 10-year sentence because he had a prior drug felony. He argued that the 10-year minimum was unauthorized because 21 U.S.C section 851(a)(2) requires the prior conviction to be by indictment, unless the defendant waived indictment. Section 851(a)(2) provides: “An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” Following the 9th and 10th Circuits, the 7th Circuit held that section 851(a)(2) refers to the conviction for which the enhanced sentence is sought, not the prior conviction on which enhancement is based. Defendant’s interpretation would require an ex post facto increase in the punishment for a past prior offense, which is not permissible. U.S. v. Burrell, 963 F.2d 976 (7th Cir. 1992).
7th Circuit rejects claim that indictment must notify defendant of government’s intent to seek enhanced penalties under section 841(b)(1)(B). (245) The 7th Circuit found no due process violation in the indictment’s failure to notify defendant of the government’s intention to seek an enhanced sentence based upon the weight of the drugs involved under 21 U.S.C. section 841(b)(1)(B). The quantity of drugs is not an element of the offense, but relates to a sentencing factor. Guideline sections 6A1.1 through 1.3 and Fed. R. Crim. Pr. 32 require the district court to give defendant notice of factors which may be used to determine his sentence post-conviction, not pretrial. U.S. v. Levy, 955 F.2d 1098 (7th Cir. 1992).
7th Circuit upholds mandatory minimum sentence above guideline range. (245) Defendant had a guideline range of 21 to 27 months, but because his conduct involved over 100 marijuana plants, received a mandatory minimum sentence of five years. The 7th Circuit upheld the mandatory minimum sentence against defendant’s claim that it was in violation of law because it exceeded his guideline range. Guideline § 5G1.1(b) provides that where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the minimum sentence shall become the guideline sentence. U.S. v. Hayes, 939 F.2d 509 (7th Cir. 1991).
7th Circuit reverses career offender sentence that exceeded the statutory maximum. (245) Defendant was convicted of possessing with intent to distribute 9.15 kilograms of marijuana in violation of 21 U.S.C. § 841(b)(1)(D). Since he had a prior drug felony conviction, he was subject to a maximum 10-year sentence. He was found to be a career offender under the guidelines, with a guideline range of 262 to 327 months. He was sentenced to 300 months because the probation officer, government and district court mistakenly believed the statutory maximum for defendant’s crime was 30 years. On appeal, the 1st Circuit reversed, holding that defendant could be sentenced to no more than the statutory maximum, ten years. U.S. v. Belanger, 936 F.2d 916 (7th Cir. 1991).
7th Circuit finds no conflict between guidelines and minimum sentences set forth in Anti-Drug Abuse Act. (245) Defendant argued that the guidelines conflict with the Anti-Drug Abuse Act because the guidelines prescribe a minimum sentence greater than the minimum sentence set forth in the Anti-Drug Abuse Act. The 7th Circuit found no such conflict. Guideline § 5G1.1(c)(2) provides that a sentence may be imposed anywhere within the guideline range, provided that sentence is not less than any statutorily required minimum sentence. Here, the statutory minimum was 10 years and the guideline minimum, which defendant received, was 12 years and 7 months. U.S. v. Macias, 930 F.2d 567 (7th Cir. 1991).
7th Circuit holds court may not depart downward to impose probation under 21 U.S.C. 841(b)(1)(A). (245) Defendant’s crime carried a mandatory minimum 10-year sentence under 21 U.S.C. § 841(b)(1)(A). The district court departed downward based on defendant’s substantial assistance to authorities, and sentenced defendant to probation. The 7th Circuit remanded for resentencing, finding that § 841(b)(1)(A) prohibited a court from imposing probation in lieu of imprisonment. That section provides for a minimum 10-year term of imprisonment, and expressly prohibits a court from placing on probation any person sentenced under the section. Permitting a court to then depart downward and sentence a defendant to probation would render the prohibition meaningless. U.S. v. Thomas, 930 F.2d 526 (7th Cir. 1991).
7th Circuit, en banc, includes weight of carrier medium in calculating LSD sentence. (245) 21 U.S.C. § 841(b)(1) sets a mandatory minimum term of imprisonment of five years for selling more than one gram of a “mixture or substance containing a detectable amount” of LSD. One defendant was convicted of selling 10 sheets of paper containing LSD. Because the total weight of the paper and the LSD was 5.7 grams, defendant received the five year mandatory minimum sentence. The en banc 7th Circuit held that the weight referred to in § 841 was the gross weight of the drug plus the carrier medium, not just the net weight of the drug. Although conceding that this could cause “odd things” to happen, the court found the language of the statute unambiguous. The 7th Circuit also held that the drug quantity table set forth in the guidelines referred to the gross weight of the LSD and the carrier medium. The court rejected the argument that the sentences violated the 8th Amendment or due process. Judge Cummings dissented, joined by Chief Judge Bauer, and Judges Wood, Cudahy and Posner, finding that the inclusion of the weight of the medium violated the statute and due process. Judge Posner also wrote a separate dissent, joined by the other dissenters, finding that the majority’s interpretation made the punishment scheme for LSD irrational and violative of due process. U.S. v. Marshall, 908 F.2d 1312 (7th Cir. 1990) (en banc), aff’d. Chapman v. U.S., 500 U.S. 453, 111 S.Ct. 1919 (1991).
7th Circuit finds it unnecessary to rule on challenge to mandatory minimum sentence where defendant received a sentence higher than the minimum. (245) Defendant could have been sentenced to more than 100 years in prison, even if the mandatory minimum of 21 U.S.C. § 841(b)(1)(B) were not there. He received only 12 years. Thus the 7th Circuit held that it was “unnecessary to decide whether Congress must take potency into account when setting statutory maxima.” U.S. v. Baker, 905 F.2d 1100 (7th Cir. 1990).
7th Circuit rules that minimum mandatory sentences do not violate 8th Amendment. (245) The 7th Circuit held that a minimum mandatory sentence of five years without parole was not disproportionate to the offense of possessing 7.3 grams of LSD (including the blotter paper) for distribution. Congress’s determination that LSD is a dangerous drug was not irrational. A five year sentence is not considered severe by today’s standards. U.S. v. Rose, 881 F.2d 386 (7th Cir. 1989).
8th Circuit holds that PSR’s failure to list mandatory life sentence did not result in plain error. (245) Defendant was convicted of multiple crimes stemming from his involvement in a cocaine-distribution ring. He argued that the district court erred in sentencing him to a mandatory life term since his PSR failed to state that he was facing a mandatory life sentence. The Eighth Circuit rejected the challenge. The error was not prejudicial because defendant could not show that he would have received a lighter sentence but for the alleged misstated sentencing range in the PSR. Defendant faced a mandatory minimum sentence. Absent a government motion, the district court could not impose a sentence below the statutory mandatory minimum. U.S. v. Horton, __ F.3d __ (8th Cir. Mar. 24, 2014) No. 12-3627.
8th Circuit finds prior state burglaries were not part of instant drug conspiracy. (245) Defendant pled guilty to methamphetamine conspiracy charges. The district court found that he was ineligible for safety valve relief because he received four criminal history points for two 2011 state burglary convictions. Defendant objected to those points, arguing that the prior convictions and the current offense were “all one series of conduct [because it] all had to do with methamphetamine use and abuse.” The Eighth Circuit disagreed, finding that defendant failed to meet his burden of establishing that the burglaries he committed in the summer of 2010 occurred “during the commission of [or] in preparation for” his later drug conspiracy offense. Rather, they were “severable and distinct” from the offense of conviction. The state offenses were property crimes committed by defendant acting alone, and there was no evidence they furthered the goals of the drug conspiracy, involved common victims, or were relevant to proving the drug conspiracy offense. U.S. v. Brooks, 722 F.3d 1105 (8th Cir. 2013).
8th Circuit holds that misidentification of prior drug conviction was clerical error. (245) Before defendant’s drug trial, the government filed a notice under 21 U.S.C. 851 of its intent to use two prior convictions to enhance his sentence. One of the listed convictions was a Kansas conviction for felony possession of cocaine within 1000 feet of a school. However, the Kansas conviction was actually for possession with intent to sell. Defendant argued that the misidentification of this conviction in the § 851 notice rendered the document defective. The district court disagreed, and sentenced defendant to a mandatory life sentence under § 841(a)(1) and (b)(1)(A). The Eighth Circuit affirmed, concluding that the error in the notice was a clerical error that was correctable. The notice sent here included the county of origin, date of conviction, and case number of the conviction. The error did not deprive defendant of notice about which conviction the government intended to use, the enhancement of his sentence for which they were asking, or an opportunity to dispute the conviction. U.S. v. Higgins, 710 F.3d 839 (8th Cir. 2013).
8th Circuit holds indictment’s use of pre-FSA drug quantity was harmless error. (245) Defendant’s indictment charged him with violating 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 by conspiring to distribute 50 or more grams of crack cocaine. He argued for the first time on appeal that the indictment should have charged him with conspiring to distribute 280 grams or more of crack cocaine, pursuant to the Fair Sentencing Act of 2010 (FSA), and that the indictment was therefore fatally defective. Enacted almost two years after defendant’s indictment was returned, the FSA changed the threshold quantity of crack cocaine required by § 841(b)(1)(A)(iii) from 50 grams to 280 grams. The Eighth Circuit reviewed for plain error, and found none. Aware that the FSA might be applied retroactively, the government agreed before trial to prove that the conspiracy involved 280 grams or more of crack cocaine. Furthermore, the district court explicitly found beyond a reasonable doubt that the conspiracy involved in excess of 5,000 grams of crack cocaine. The fact that defendant’s indictment listed pre-Act quantities did not affect the fairness or integrity of the judicial proceedings where it was established at trial that the conspiracy involved amounts of cocaine base far in excess of the current requirements. U.S. v. Higgins, 710 F.3d 839 (8th Cir. 2013).
8th Circuit does not require notice of prior convictions beyond § 851’s provisions. (245) Defendant was convicted of drug conspiracy charges, and was sentenced to a mandatory minimum life sentence. He argued for the first time on appeal that the government failed to provide proper notice of his eligibility for a mandatory life sentence. The Eighth Circuit found that the government did all that was required under 21 U.S.C. § 851(a), and therefore there was no plain error. As required by § 851(a), before trial, the government served a notice on the court and defendant stating the government’s intent to seek an enhanced sentence under 21 U.S.C. § 841(b), and disclosed the two previous convictions supporting this enhancement. The court rejected defendant’s claim that the government was required to specifically inform defendant that his prior convictions made him eligible for a mandatory life sentence under 21 U.S.C. § 841(b)(1)(a)(viii). Defendant did not cite any authority suggesting a constitutional right to greater notice than what is required by § 851. U.S. v. Chantharath, 705 F.3d 295 (8th Cir. 2013).
8th Circuit denies safety valve relief to supervisor of meth conspiracy. (245) Defendant pled guilty to methamphetamine charges. She gave information to law enforcement under a proffer agreement. The district court denied a safety-valve reduction under 18 U.S.C. § 3553(f), finding that she was a “supervisor” under guideline § 3B1.1(c), and that she gave incomplete and false information in her proffer. The Eighth Circuit found no clear error. According to the testimony, defendant directed a co-conspirator to buy seven ounces (almost 200 grams) of meth. A number of other times, defendant directed another man to sell meth and then collected the money from him. Thus, she “control[led] another participant in [the] drug trafficking offense.” U.S. v. Gamboa, 701 F.3d 265 (8th Cir. 2012).
8th Circuit holds that defendant did not meet information requirement of safety valve. (245) Defendant used his home to store drugs as part of a marijuana and cocaine distribution conspiracy. He argued that he should have received a two-level safety valve reduction under § 2D1.1(b)(16) because he qualified for safety valve relief under § 5C1.2. That provision applies to first-time non-violent drug offenders who meet five requirements. The Eighth Circuit ruled that defendant did not meet the information requirement in § 5C1.2(a)(5). Defendant did not produce any evidence to show that he “truthfully provided to the Government all information and evidence [he had] concerning the offense.” § 5C1.2(a)(5). He did not show that he “disclose[d] all the information he possessed about his involvement in the crime,” or that he attempted to initiate contact with the government to discuss the crime. The court did not plainly err in not granting defendant the two-level reduction. U.S. v. Dengler, 695 F.3d 736 (8th Cir. 2012).
8th Circuit holds that defendant failed to prove he provided adequate information for safety valve protection. (245) The district court found defendant ineligible for safety valve protection because he did not satisfy the information requirement in §5C1.2(a)(5). He argued that the court violated his due process rights by failing to make an independent determination of whether he qualified for safety valve relief. The Eighth Circuit ruled that the district court did not clearly err in finding that defendant failed to satisfy the safety valve’s information requirement. The government presented evidence at sentencing showing that defendant’s role in the drug conspiracy was greater than he had admitted. The government also represented to the court that defendant did not give a complete and accurate accounting of his role in the crime, and gave examples of how defendant was noncompliant. Defense counsel did not present any evidence to counter this assessment, and at several points seemed to concede that defendant did not fully proffer. Thus, defendant failed to meet his burden that he provided complete and truthful information. U.S. v. Garcia, 675 F.3d 1091 (8th Cir. 2012).
8th Circuit takes into account sentencing cap linked to defendant’s criminal history. (245) The district court found that defendant’s Kansas conviction for failure to affix a drug tax stamp qualified as a prior felony drug offense under 21 U.S.C. § 841(b)(1), triggering a 240-month mandatory minimum sentence. Defendant argued that the Kansas conviction was not a felony because, based on his criminal history, he could not have been sentenced to more than seven months under Kansas law. The Eighth Circuit originally upheld the district court’s decision that the tax stamp conviction qualified as a prior felony drug offense. The Supreme Court remanded for reconsideration in light of Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010), which rejected the use of a hypothetical approach when determining whether a state misdemeanor conviction qualified as a felony. The Eighth Circuit held that because the Kansas sentencing structure linked the maximum terms of imprisonment directly to a particular defendant’s recidivism, Carachuri-Rosendo required it to take into account the seven-month cap on defendant’s individual sentence. The hypothetical possibility that some recidivist defendants could have faced a sentence of more than one year was not enough to qualify defendant’s conviction as a felony under § 841(b)(1). U.S. v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011).
8th Circuit, en banc, says only drugs in count of conviction trigger mandatory minimum. (245) Defendant was charged with five drug counts, but pled guilty to only one count of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to 120 months in prison, the mandatory minimum based on the court’s drug quantity calculation. Defendant argued that the court improperly aggregated amounts of meth in counts dismissed pursuant to his plea agreement. However, following the precedent in U.S. v. Jenkins, 537 F.3d 894 (8th Cir. 2008), an Eighth Circuit panel affirmed. On rehearing en banc, the Eighth Circuit overruled Jenkins, and held that the only drug quantities that may trigger a mandatory minimum sentence for a discrete violation of § 841 are those involved in the count of conviction. Jenkins’s holding conflicted with the plain language of § 841, which states that the mandatory minimums for various drug amounts “do so by reference solely to the offense of conviction.” U.S. v. Resinos, 631 F.3d 886 (8th Cir. 2011) (en banc).
8th Circuit says defendant lacked standing to challenge constitutionality of mandatory minimum. (245) Defendant pled guilty to possessing five grams or more of cocaine base with intent to distribute. The district court sentenced him to 70 months imprisonment. Defendant appealed, arguing in part that the mandatory minimum sentence required by § 841(b)(1)(B)(iii) violated due process. The Eighth Circuit held that defendant lacked standing to raise this argument. During sentencing, the district court properly considered the factors in 18 U.S.C. § 3553(a) and imposed a sentence 10 months above the 60-month mandatory minimum found in § 841(b)(1) (B) (iii). Because defendant’s sentence was unaffected by § 841(b)(1)(B)(iii), he did not demonstrate a causal connection between his injury (i.e. his sentence) and the mandatory minimum sentence. U.S. v. Scott, 627 F.3d 702 (8th Cir. 2010).
8th Circuit bars sentence below mandatory minimum. (245) Defendant was convicted of possessing with intent to distribute cocaine base. The court sentenced her to 120 months, the statutory minimum under 21 U.S.C. § 841(b)(1)(B). Defendant argued that the mandatory minimum sentence in 21 U.S.C. § 841(b) conflicted with the “parsimony clause” of 18 U.S.C. § 3553(a), which says the court “shall impose a sentence sufficient, but not greater than necessary to comply with the specific purposes set forth” in § 3553(a)(2). The Eighth Circuit held that the district court did not err by sentencing defendant to the minimum term of imprisonment required by § 841(b). The Supreme Court’s decision in Booker did not expand the district court’s authority to impose a sentence below a statutory minimum. The general statute, § 3553(a), does not authorize the district court to vary from a mandatory sentence established by § 841(b). The factors set forth in § 3553(a) must be considered only for the purpose of deciding where the court should sentence defendant within the statutory range. U.S. v. Sutton, 625 F.3d 526 (8th Cir. 2010).
8th Circuit rejects constitutional challenges to mandatory minimums for crack cocaine offenses. (245) A jury convicted defendants of conspiring to distribute fentanyl and more than 50 grams of cocaine base, in violation of 21 U.S.C. § 846 and § 841(b)(1)(A). They moved the district court to declare the mandatory minimums in 21 U.S.C. § 841(b)(1)(A)(iii) invalid on Fifth Amendment grounds. One of the defendants also challenged his sentence on Eighth Amendment grounds. The district court rejected these arguments, and the Eighth Circuit affirmed. The panel had recently rejected similar arguments regarding the five-year mandatory minimum in 21 U.S.C. § 841(b)(1)(B). The court also rejected defendant’s argument that a life sentence would amount to cruel and unusual punishment. U.S. v. Fenner, 600 F.3d 1014 (8th Cir. 2010).
8th Circuit counts drug offenses that occurred during conspiracy as prior drug offenses. (245) Defendant pled guilty to drug conspiracy charges based on drug dealing than spanned from 1996 through November 2007. The district court found that he had two prior drug offenses, and thus was subject to a mandatory life sentence under 21 U.S.C. § 841(B)(1)(A). Defendant argued because the prior convictions became final in 2000, during the time span of the conspiracy, the convictions should not be used to enhance his sentence. However, numerous cases have held that where the charged conspiracy began before and continued after a defendant’s qualifying felony drug conviction, the federal drug conviction may be considered a “prior” conviction for purposes of applying the § 841 enhancement so long as the defendant committed an overt act in furtherance of the conspiracy after the date of the conviction. See, e.g. U.S. v. Pratt, 553 F.3d 1165 (8th Cir. 2009). Defendant committed overt acts in furtherance of the conspiracy after these two convictions became final in 2000, as evidenced by the May 2007 search of the house where he was arrested. U.S. v. McCarther, 596 F.3d 438 (8th Cir. 2010).
8th Circuit rules Missouri conviction with suspended sentence was prior drug sentence. (245) Defendant pled guilty to drug charges in violation of 21 U.S.C. § 841(a). Based on a prior Missouri conviction for sale of a controlled substance, which resulted in a suspended sentence and three years of probation, the district court found that defendant was subject to an enhanced mandatory minimum under 21 U.S.C. § 841(b) (1)(A). Defendant argued that because Missouri courts do not consider a suspended sentence to be a final judgment, he has no “prior conviction” that would subject him to § 841 (b)(1)(A)’s enhanced 20-year minimum sentence. The Eighth Circuit rejected this argument, noting that the great weight of authority was against defendant’s position. The question of what constitutes a “prior conviction” for purposes of § 841(b)(1)(A) is a matter of federal, not state, law. Under federal law, a suspended imposition of sentence qualifies as a prior conviction. U.S. v. Craddock, 593 F.3d 699 (8th Cir. 2010).
8th Circuit denies retroactive reductions to crack defendants who received departures below mandatory minimums. (245) Defendants were convicted of crack cocaine offenses and were subject to statutory mandatory minimum sentences, which became their Guidelines range pursuant to § 5G1.1(b). Each received a substantial assistance departure below that range. Defendants later filed motions under 18 U.S.C. § 3582(c)(2) to reduce their sentences based on Amendment 706, which reduced the offense level for certain crack offenses. The district court denied defendants’ motions, finding that none of them were eligible for a further reduction of their sentences because the statutory mandatory minimum would still be the starting point for any departure. The Eighth Circuit affirmed, noting that if Amendment 706 had been in effect at the time of defendants’ original sentencing, the mandatory minimums would still have controlled, and the guideline range would still have been the statutory mandatory minimum. U.S. v. Byers, 561 F.3d 825 (8th Cir. 2009).
8th Circuit holds that Iowa’s drug tax stamp violation was felony drug offense. (245) Defendant pled guilty to conspiracy to distribute more than 100 kilograms of marijuana. The district court found that defendant’s earlier conviction for failing to affix a drug tax stamp, in violation of Iowa Code § 543B.12, qualified as a felony drug offense, thus subjecting him to an enhanced sentence under 21 U.S.C. § 841(B) (1)(b). Defendant argued that his tax stamp conviction could not constitute a felony drug offense because it was a tax violation that imposed civil penalties and not a drug offense under Iowa law. The Eighth Circuit found no error. Iowa’s classification of the offense does not govern the federal statute’s application. Pursuant to §§ 841(b)(1)(B) and 802(44), the prior offense must be a felony that restricts conduct relating to marijuana. There was no doubt that Iowa’s tax stamp law places a restriction on the distribution of marijuana and that distributing marijuana is conduct relating to marijuana. U.S. v. Coleman, 556 F.3d 851 (8th Cir. 2009).
8th Circuit says state drug statute allowing indeterminate sentence of up to five years was “felony drug offense.” (245) Defendant was convicted of drug charges, and the district court found that he was subject to a 20-year mandatory minimum sentence based on a prior third-degree felony drug conviction in Utah. For purposes of §841(b)(1), a “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a state.” 21 U.S.C. §802(44). The Utah statute imposed an “indeterminate” sentence, and, for a third-degree felony, for a term not to exceed five years. Defendant received a five-year suspended sentence. He argued that the Utah conviction was not a “felony drug offense” under federal law because a third-degree felony conviction might result in less than a one-year sentence. The Eighth Circuit disagreed, holding that the court looks to the maximum penalty allowed by the state statute, i.e., up to five years. U.S. v. Guzman-Tlaseca, 546 F.3d 571 (8th Cir. 2008).
8th Circuit upholds using higher of two offense levels as starting point for departure. (245) Defendant pled guilty to drug charges carrying a 120-month minimum sentence. The government moved under 18 U.S.C. §3553(e) for a substantial assistance departure. For defendant’s criminal history category, there were two offense levels that had sentencing ranges that included a 120-month sentence: (1) level 27 (with a range of 100-125 months), and (2) level 28 (with a range of 110-137 months). The district court selected level 28, and then departed by two levels as requested by the government, to level 26 and an advisory range of 92-115 months. The court sentenced defendant to 92 months. Defendant argued that the district court procedurally erred by departing downward from the higher of the two offenses levels, but the Eighth Circuit found no error. The Guidelines do not mandate a particular approach for calculating a substantial assistance departure. The sentencing court may depart by levels or it may depart by months. Because the decision to depart by levels is discretionary, the court’s decision to select the higher of two levels that encompassed the mandatory minimum sentence was not procedural error. U.S. v. Diaz, 546 F.3d 566 (8th Cir. 2008).
8th Circuit holds that advisory nature of guidelines did not permit court to decline to count a prior conviction. (245) Defendant pled guilty to drug charges, which, because of his prior convictions, subjected him to a mandatory minimum sentence of 60 months. the district court found that the Guidelines criminal history calculation was advisory and assessed defendant only one criminal history points, even though he had two previous convictions. This made him eligible for safety valve protection. The Eighth Circuit reversed, holding that the advisory nature of the Sentencing Guidelines did not permit the district court to decline to count a prior conviction. Mandatory minimum statutes are unaffected by Booker and its progeny. The district court erred in finding that the advisory nature of the Guidelines permitted it to treat defendant’s 1993 as akin to a listed excluded offense without actually being similar to one. U.S. v. Leon-Alvarez, 532 F.3d 815 (8th Cir. 2008).
8th Circuit says amended crack guideline did not affect mandatory minimum sentence. (245) Defendant appealed the court’s denial of his § 3582(c)(2) motion for a sentence reduction based on Amendment 706, which reduced the base offense levels in U.S.S.G. § 2D1.1(c) based on the quantity of cocaine base. Defendant’s originally calculated guideline range was 211-151 months, and he received a sentence of 120 months, the statutory mandatory minimum for the quantity of crack involved in his conviction. The Eighth Circuit held that defendant was not entitled to any relief under the crack amendments. Application of the new drug quantity guidelines would have resulted in a guideline range of 120-121 months. Defendant was not entitled to a reduction of his 120-month sentence. U.S. v. Peters, 524 F.3d 905 (8th Cir. 2008).
8th Circuit says Kimbrough did not authorize a sentence below mandatory minimum. (245) Defendant was convicted of crack cocaine charges. He faced a mandatory minimum sentence of 60 months, see 21 U.S.C. § 841(b)(1)(B), and was originally sentenced to 70 months in prison. In a motion to reduce his sentence under § 3582(c)(2), based on Amendment 706 (which reduced the offense levels for crack offenses), the district court sentenced defendant to a new sentence of 60 months. Defendant appealed, but the Eighth Circuit affirmed, holding that the district court properly set the bottom of the amended guideline range at 60 months, the statutory mandatory minimum sentence. The district court lacked the authority to reduce defendant’s sentence any further, even after Kimbrough, which does not authorize district courts to sentence below the congressionally mandated statutory minimum sentences. U.S. v. Black, 523 F.3d 892 (8th Cir. 2008).
8th Circuit holds that mandatory minimum drug sentence is not affected by Booker. (245) After briefs were submitted, defendant submitted a letter pursuant to Rule 28(j) arguing that he should be resentenced under Blakely v. Washington, 124 S.Ct. 2531 (2004) because he received an enhanced sentence due to a prior drug felony conviction. The jury found a quantity of methamphetamine in excess of 50 grams. The quantity resulted in a mandatory minimum sentence of five years. However, because defendant had a prior drug felony conviction, the mandatory minimum sentence was enhanced to 10 years. See 21 U.S.C. § 841(b)(1)(B). The Eighth Circuit held that defendant was not entitled to resentencing under Blakely or the recent Supreme Court decision in U.S. v. Booker, 543 U.S. 220 (2005). Defendant’s sentence was not based on an application of the federal Sentencing Guidelines, but upon the mandatory minimum sentence set forth in the government criminal statute, and a quantity of drugs determined by the jury. As to the enhancement for a prior conviction, the Supreme Court has consistently said the fact of a prior conviction is for the court to determine, not a jury. U.S. v. Vieth, 397 F.3d 615 (8th Cir. 2005).
8th Circuit says mandatory minimum sentence did not violate Blakely. (245) Defendant contended that his convictions and sentence were unconstitutional because they were based on drug quantities that the government was not required to prove as an element of the offense. The Eighth Circuit found that regardless of the ramifications of Blakely v. Washington, 124 S.Ct. 2531 (2004), defendant’s mandatory minimum sentence was constitutional. Defendant’s 120-month sentence was the mandatory minimum term of imprisonment for a defendant who is convicted of trafficking in excess of 500 grams of a mixture or substance containing methamphetamine. Blakely explained that a sentence may be imposed by a judge if it is based solely on the “facts reflected in the jury verdict or admitted by the defendant.” Here, the indictment alleged that defendant possessed with intent to distribute in excess of 500 grams of meth, and he admitted this fact as part of his guilty plea. No additional finding was required by the district court to justify the sentence imposed. U.S. v. Lucca, 377 F.3d 927 (8th Cir. 2004).
8th Circuit holds that Missouri suspended sentence for felony drug offense was prior conviction under § 841. (245) A person who possesses 50 or more grams of methamphetamine with intent to distribute “after a conviction for a felony drug offense has become final” is subject to a mandatory minimum sentence of 20 years imprisonment. 21 U.S.C. § 841(b)(1)(A). The Eighth Circuit held that defendant’s prior suspended sentence for a Missouri felony drug offense subjected defendant to the enhanced mandatory minimum under § 841(b)(1)(A). Although Missouri has chosen not to treat suspended sentences as final judgments, Missouri law does not control the question of what constitutes a conviction for purposes of 21 U.S.C. § 841. See U.S. v. Franklin, 250 F.3d 653 (8th Cir. 2001); U.S. v. Ortega, 150 F.3d 937 (8th Cir. 1998). Defendant’s prior Missouri felony conviction qualified as a prior final felony drug convictions for purposes of § 841(b). U.S. v. Slicer, 361 F.3d 1085 (8th Cir. 2004).
8th Circuit refuses to consider waiver of appeal where court imposed illegal sentence. (245) The district court imposed a 180-month sentence, improperly finding that defendant’s prior conviction did not subject him to an enhanced mandatory minimum sentence of 240 months. Defendant argued that the government’s appeal should be dismissed because the government entered into a general waiver of its appellate rights. The Eighth Circuit found that it unnecessary to determine if the government waived the right to appeal the court’s failure to apply the § 841(b)(1)(A) enhancement given that the court imposed an illegal sentence. Enforcing that waiver would result in a miscarriage of justice. A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or less than the permissible statutory penalty for the crime. U.S. v. Slicer, 361 F.3d 1085 (8th Cir. 2004).
8th Circuit says prior offenses were separate even though defendant was convicted and sentenced on same day. (245) Defendant argued that his sentence could not be enhanced under 21 U.S.C. § 841(b)(1)(A) based on two prior felony drug convictions because he was convicted and sentenced on the same day for both offenses. On October 10, 1997, defendant was convicted of an April 9, 1997 possession of cocaine offense, and an October 7, 1997 possession of cocaine offense. The Eighth Circuit found that it did not matter that defendant was convicted and sentenced on the same day – what mattered was he was convicted of two separate criminal episodes. Thus, the district court properly used the two prior convictions for possessing cocaine to enhance defendant’s sentence under § 841(b)(1) (A). U.S. v. Cook, 356 F.3d 913 (8th Cir. 2004).
8th Circuit says failure to challenge use of second, uncharged drug type to trigger higher minimum was ineffective assistance. (245) Defendant was convicted of marijuana conspiracy charges. The court held defendant accountable for 1149 kilograms of marijuana by aggregating two different drug types, 809.2 kilograms of marijuana and 12 ounces of methamphetamine, which the court converted to its marijuana equivalent of 340.2 kilograms. See Drug Table in U.S.S.G. § 2D1.1. Offenses involving 1000 kilograms or more of marijuana for defendants with prior felony drug convictions are subject to a 20-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(vii). Every circuit to consider the issue has concluded that a second, uncharged drug type cannot be added to the charged drug type in order to trigger a higher statutory penalty range. See U.S. v. Santos, 195 F.3d 549 (10th Cir. 1999) (collecting cases). The Eighth Circuit held that defendant’s lawyer performed deficiently by failing to raise this issue at sentencing or on appeal. Defendant was prejudiced by his lawyer’s deficient performance, since an error increasing a defendant’s sentence by as little as six months can be prejudicial. On remand, the district court was instructed to determine what sentence it would have imposed when originally sentencing defendant if it had been faced with the correct guideline range of 210-262 months. Alaniz v. U.S., 351 F.3d 365 (8th Cir. 2003).
8th Circuit says court properly applied mandatory life sentence and refused to depart without government motion. (245) Defendant argued that the district court mistakenly believed that it did not have the power to depart due to the application of the career offender statute and 21 U.S.C. § 841. Because the government did not file a motion for a downward departure from the statutory minimum sentence, the Eighth Circuit found that the district court properly determined that it had no authority to depart. A district court lacks authority to sentence below the statutory minimum if the pertinent provisions in § 841(b) apply and the government has lawfully declined to move for a downward departure under 18 U.S.C. § 3553(e). Whether the mandatory life sentence under § 841(b)(1)(A)(viii) applied depended on whether 500 or more grams of methamphetamine were involved in defendant’s offense. The jury convicted defendant of conspiring to distribute 500 or more grams of meth, a fact the sentencing court was permitted to adopt because the same court presided over the trial in the case. Because defendant was previously convicted of at least two other drug felonies, § 841(b)(1)(A) made a life sentence mandatory. U.S. v. Collins, 340 F.3d 672 (8th Cir. 2003).
8th Circuit holds that court lacked authority to depart below statutory minimum. (245) The district court initially sentenced defendant to 51 months’ imprisonment. However, the next day, the government timely moved under Rule 35(c) to correct defendant’s sentence, reminding the court that defendant was subject to a mandatory minimum sentence of 60 months under 21 U.S.C. § 841(b)(1)(B)(ii). At resentencing, defense counsel urged the court to depart below the statutory minimum under § 5K2.0. The Eighth Circuit held that the district court properly ruled that it lacked authority under § 5K2.0 to depart below the statutory minimum sentence. “[T]he only authority for the district court to depart below the statutorily mandated minimum sentence is found in 18 U.S.C. § 3553(e) and (f), which apply only when the government makes a motion for substantial assistance or when the defendant qualifies under the safety valve provision.” The government did not file a substantial assistance motion, and defendant was ineligible for safety valve protection. U.S. v. Chacon, 330 F.3d 1065 (8th Cir. 2003).
8th Circuit holds that § 851 does not limit age of prior conviction used to enhance sentence. (245) The district court enhanced defendant’s sentence based on a prior state felony conviction. Title 21 U.S.C. § 851 provides that anyone who violates a section of the title and has previously committed a felony drug offense must be sentenced to at least ten years in prison. Defendant argued that the § 851 enhancement was in error because the state felony was more than ten years old. However, § 851 is silent as to whether the age of a prior conviction should be considered. The only time constraint addressed in § 851 is the limitation on a defendant’s ability to challenge a conviction. See 21 U.S.C. § 851(e). The Eighth Circuit found that the rule of lenity was not applicable because no ambiguity in existed in the statute. U.S. v. Pherigo, 327 F.3d 690 (8th Cir. 2003).
8th Circuit holds that suspended sentence counted despite contrary state law. (245) Defendant argued that a prior Missouri conviction that resulted in a suspended sentence should not have counted as a prior conviction under § 841 because under Missouri law, a suspended sentence is not a final judgment. The Eighth Circuit held that Missouri law did not control the question of what constitutes a “conviction” for purposes of § 841. In U.S. v. Ortega, 150 F.3d 937 (8th Cir. 1998), this circuit adopted the conclusions drawn by several sister circuits that “deferred adjudications or probated sentences constitute convictions in the context of § 841.” One panel may not overrule another panel’s decision. U.S. v. Franklin, 250 F.3d 653 (8th Cir. 2001).
8th Circuit requires drug quantity finding to determine whether mandatory minimum was applicable. (245) The district court stated that it was departing downward, and imposed a 24-month sentence. The government contended that the district court lacked authority to sentence defendant below the 10-year mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(1) (A)(iii), for offenses involving 50 or more grams of cocaine base. The Tenth Circuit agreed that the court lacked authority to sentence defendant below the statutory minimum if the pertinent provision in § 841(b) applied and the government lawfully declined to move for a downward departure under 18 U.S.C. § 3553(e). However, the district court did not expressly find that 50 or more grams of cocaine were involved, and did not specifically rule on the applicability of § 841(b). The court’s statements that the sentencing range was 97 to 121 months, “but because of the statutory minimum it is 120 months” did not appear to be a ruling on the applicability of § 841(b) when read in the context of the entire sentencing hearing. On remand, the district court must make a factual finding as to the quantity of cocaine base involved in defendant’s offense. If the court concludes that the relevant quantity is 50 grams or more, the ten-year statutory minimum is applicable and, in the absence of a government departure motion under 18 U.S.C. § 3553(e), the court will be precluded from sentencing defendant to less than 10 years. U.S. v. Smith, 240 F.3d 732 (8th Cir. 2001).
8th Circuit says Apprendi did not require prior conviction to be found by jury. (245) The applicable drug statute, 21 U.S.C. § 841(b)(1)(A)(viii), provides for a mandatory minimum 20-year sentence for a person who manufactures 50 grams of more of methamphetamine after an earlier felony drug offense has become final. At sentencing defendant admitted the earlier conviction and the district court found over 70 grams of meth were attributable to defendant. Rather than imposing the statutory minimum, the district court imposed a sentence within the guidelines range of 135-168 months. Because the government did not file a motion under 18 U.S.C. § 3553(e), the Eighth Circuit held that the district court lacked authority to depart from the mandatory minimum sentence. Contrary to defendant’s claim, Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) did not require his earlier conviction be found by a jury. Apprendi’s jury finding requirement applies to facts “[o]ther than the fact of a prior conviction.” U.S. v. Rush, 240 F.3d 729 (8th Cir. 2001).
8th Circuit rejects reasonable foreseeability requirement where defendant’s drugs caused death. (245) Defendant pled guilty to conspiring to manufacture methamphetamine. Section 841(b) (1)(A)(viii) requires a sentence of 10 years to life, but “if death or serious bodily injury results from the use of such substance,” the sentence “shall not be less than 20 years or more than life.” Defendant argued that the enhancement only applies if the court finds that death or serious bodily injury was a reasonably foreseeable result of, or was proximately caused by, a defendant’s conduct. The Eighth Circuit held that the unambiguous language of the statute prohibited it from superimposing a foreseeability or proximate cause requirement. Congress clearly intended to expose a defendant to a more severe minimum sentence whenever death or serious bodily injury is a consequence of the victim’s use of a drug that has been manufactured or distributed by the defendant. The fact that defendant pled guilty to conspiracy charges, rather than a substantive § 841 violation, did not change the inquiry. Moreover, this case was distinguishable from U.S. v. Swiney, 203 F.3d 397 (6th Cir. 2000), which ruled that the enhancement could only be based on a co-conspirator’s actions if the actions were in furtherance of the conspiracy and were reasonably foreseeable. Defendant was subject to the enhancement based on his direct role in manufacturing the drugs ingested by the victim, and not based on the conduct of a co-conspirator. U.S. v. McIntosh, 236 F.3d 968 (8th Cir. 2001).
8th Circuit holds the death or bodily injury enhancement did not violate Apprendi. (245) Defendant pled guilty to conspiring to manufacture methamphetamine. Section 841(b) (1)(A) (viii) requires a sentence of 10 years to life, but “if death or serious bodily injury results from the use of such substance,” the sentence “shall not be less than 20 years or more than life.” The Eighth Circuit held that the district court did not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) by using the preponderance of the evidence standard rather than a reasonable doubt standard in determining whether the enhancement was applicable. First, the enhancement did not increase the statutory maximum authorized by Congress under § 841(b)(1)(A). Second, the sentence defendant received (20 years) did not exceed the maximum sentence authorized under § 841(b)(1)(C), the penalty provision for the “offense simpliciter.” U.S. v. McIntosh, 236 F.3d 968 (8th Cir. 2001).
8th Circuit holds that § 851 information need only be signed by Assistant U.S. Attorney. (245) In order for a sentence to be enhanced under § 841(b) on the basis of a defendant’s prior convictions, the United States Attorney must file before trial an information “stating in writing the previous convictions to be relied upon.” 21 U.S.C. § 851(a)(1). The Eighth Circuit rejected defendant’s argument that the statute requires that the information be personally signed by the U.S. Attorney. As a practical matter, an official with much responsibility cannot carry out every aspect of the duties of the office. The power to file enhancement informations has been expressly delegated to Assistant U.S. Attorneys. See United States Attorneys Manual § 9-2.000. An information signed by an Assistant U.S. Attorney is adequate for the purpose of § 851(a), which is to ensure that a defendant has notice that the government intends to seek an enhanced sentence based on prior convictions. U.S. v. Hawthorne, 235 F.3d 400(8th Cir. 2000).
8th Circuit holds that drug possession was not part of same criminal episode as ongoing conspiracy. (245) Between November 1989 and March 1991, defendant took part in a drug conspiracy that spanned New Mexico, Missouri and Iowa. In 1991, he pled guilty in New Mexico district court to drug conspiracy charges. He later he pled guilty in Iowa state court to possessing 200 pounds of marijuana that authorities found at his Iowa residence in October 1990. He claimed that the Iowa marijuana offense and the New Mexico conspiracy resulted from a single episode of criminal activity and should count as only one prior conviction under 21 U.S.C. § 841(b)(1)(A). A separate criminal episode may be “an incident that is part of a series, but forms a separate unit within the whole. Although related to the entire course of events, an episode is a punctuated occurrence with a limited duration.” U.S. v. Gray, 152 F.3d 816 (8th Cir. 1998). Here, the Iowa state conviction was “an incident that [was] part of a series.” Although related to the entire course of events in the ongoing conspiracy charged in New Mexico, the Iowa possession charge “form[ed] a separate unit within the whole.” The New Mexico conviction stemmed from conduct spanning three calendar years, while the Iowa conviction stemmed from conduct on a single day, and thus was a “punctuated occurrence with a limited duration.” Thus, the Eighth Circuit ruled that the Iowa conviction arose from a separate criminal episode for § 841(b) enhancement purposes. U.S. v. Johnston, 220 F.3d 857 (8th Cir. 2000).
8th Circuit remands where sentencing memo incorrectly said statutory minimum was 121 months. (245) Although the district court initially favored sentencing defendant to 100 months’ imprisonment, the government pointed out that the court could not impose a sentence below the statutory minimum for the offense. See 21 U.S.C. § 841(b)(1)(A)(viii). The district court agreed and sentenced defendant to 121 months’ imprisonment and five years’ supervised release. The Eighth Circuit rejected defendant’s claim that the court should have sentenced him below the mandatory minimum 120-month sentence. However, in selecting a sentence, the district court may have relied upon the government’s sentencing memorandum, which incorrectly referred to 121 months as the statutory minimum sentence. The case was remanded for the limited purpose of allowing the district court to consider imposing a 120-month sentence, the true statutory minimum. U.S. v. Wolfe, 215 F.3d 811 (8th Cir. 2000).
8th Circuit upholds constitutionality of federal “three strikes” law. (245) Defendant challenged the constitutionality of 18 U.S.C. § 3559(c), the so-called “three strikes” law. Under this statute, the district court sentenced defendant to life imprisonment for his role in a robbery. Since defendant did not raise any argument not previously rejected in U.S. v. Farmer, 73 F.3d 836 (8th Cir. 1996), the Eighth Circuit rejected defendant’s claim. The only appellate decision finding the statute unconstitutional, U.S. v. Kaluna, 152 F.3d 1069 (9th Cir. 1998), has been superseded by an en banc decision of the same court, 192 F.3d 1188 (9th Cir. 1999). U.S. v. Carroll, 207 F.3d 465 (8th Cir. 2000).
8th Circuit rules indictment requirement applies to current offense. (245) The government gave notice under § 851(a)(1) of its intent to seek a sentence enhancement because of defendant’s prior state felony drug conviction. Section 851 says that no such information may be filed “unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” Defendant claimed that § 851(a)(2) precluded the district court from relying on his prior conviction since it was not prosecuted by indictment. The Eighth Circuit, following its decision in U.S. v. Trevino-Rodriguez, 994 F.2d 533 (8th Cir. 1993), held that the indictment requirement applies to the current offense rather than the prior conviction used for enhancement purposes. Defendant conceded this issue at oral argument in light of the Second Circuit’s reversal of U.S. v. Collado, 106 F.3d 1097 (2d Cir. 1997), overruled by U.S. v. Ortiz, 143 F.3d 718 (2d Cir. 1998), the only case going against the weight of authority. Because defendant’s current offense was prosecuted by indictment, the district court’s enhancement of defendant’s sentence was proper. U.S. v. Craycraft, 167 F.3d 451 (8th Cir. 1999).
8th Circuit says drug sales a day apart were not part of same criminal episode. (245) Defendant was convicted of conspiring to distribute a kilogram of more of a substance containing methamphetamine. The district court found defendant subject to a mandatory life sentence under § 841(b)(1)(A) because he had two prior felony drug convictions. Defendant claimed that the convictions arose from the same criminal episode and therefore should be counted as one prior conviction. The Eighth Circuit held that the two drug transactions a day apart were not part of a single criminal episode and thus were properly considered separate convictions. The two transactions were distinct in time, occurring on separate days, and required separate planning and execution by both defendant and the buyer. Each sale was separately arranged by the parties and neither sale was contingent upon the other. Although defendant’s two drug sales may have formed a series or pattern of drug transactions, each methamphetamine sale was a separate occurrence with a limited duration. U.S. v. Gray, 152 F.3d 816 (8th Cir. 1998).
8th Circuit applies federal law to find state offense was prior felony drug offense under § 841(b). (245) Section 841(b)(1)(A)(viii) imposes a mandatory life sentence on any defendant convicted of a violation of § 841(a) who meets certain quantity requirements and who also has two prior convictions for “a felony drug offense.” Defendant argued that his 1994 Missouri state conviction for felony possession of methamphetamine, for which he received a suspended sentence and three years of supervised probation, was not a felony conviction. The Eighth Circuit applied federal law in rejecting the argument. For purposes of § 841(b), Congress defined the term “felony” to mean any state offense classified by state law as a felony. Although Congress has not specified whether state or federal law should be applied to define the term “conviction,” in the absence of clear language to the contrary, federal law governs. Other circuits have held that a deferred adjudication or probated sentence constitutes a conviction under § 841. The fact that defendant’s motion to withdraw his guilty plea was pending before the state court, did not mean the conviction was not final. U.S. v. Ortega, 150 F.3d 937 (8th Cir. 1998).
8th Circuit says typographical error in meth statute did not require lesser mandatory minimum sentence. (245) After granting defendant’s § 2255 motion, the district court re-sentenced him to the 10-year mandatory minimum under 21 U.S.C. § 841(b) for selling methamphetamine. He argued that under the rule of lenity, he should have been sentenced to a five-year rather than a ten-year mandatory minimum sentence, because at the time of his offense, the statute contained a typographical error so that the same amount of a mixture¾100 grams¾was listed as triggering both the five-year and the ten-year mandatory minimum. The Eighth Circuit found that the rule of lenity did not mandate the lighter sentence. There was no “grievous ambiguity or uncertainty in the language and structure of the statute.” The statute clearly proscribed defendant’s conduct and gave him fair warning that he faced a sanction of at least 10 years’ incarceration for manufacturing more than 100 grams of a mixture containing methamphetamine. U.S. v. Warren, 149 F.3d 825 (8th Cir. 1998).
8th Circuit find no double jeopardy where indictment referred to wrong mandatory minimum. (245) Defendant was discovered in possession of 52,898 grams of crack. In his written plea agreement, he acknowledged that his offense was punishable by a mandatory minimum of at least 10 years. At the plea colloquy, the court repeatedly informed defendant that he faced a 10-year mandatory minimum. However, counsel then noticed that the indictment referred to 21 U.S.C. § 841(b)(1) (B), which carries a five-year mandatory minimum for possessing between five and 50 grams of crack, rather than § 841(b)(1)(A), which carries a ten-year mandatory minimum for possessing 50 grams or more of crack. Defendant argued that the court’s application of the ten-year mandatory minimum violated double jeopardy, claiming that when the court accepted his guilty plea to an indictment referring to § 841(b)(1)(B), jeopardy attached. The Eighth Circuit found no double jeopardy violation, since neither § 841(b)(1)(A) nor § 841(b)(1)(B) describes a substantive offense ¾ they are merely sentence enhancement statutes. The substantive offense to which jeopardy attached was conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 841(a). Drug quantity is not an essential element of that offense. U.S. v. Holt, 149 F.3d 760 (8th Cir. 1998).
8th Circuit holds that prosecution by indictment requirement applies only to current charge. (245) Defendant protested the use of his prior felony drug convictions to enhance his statutory minimum sentence under § 841(b)(1)(A) and § 851(a)(1)-(2). Section 851(a)(2) provides that an information may not be filed to enhance a defendant’s sentence based on the prior convictions “unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” Defendant contended that the phrase “the offense for which such increased punishment may be imposed,” refers to the prior drug conviction, in addition to the currently charged crime. The Eighth Circuit disagreed, noting that it had previously held that the prosecution by indictment requirement applies only to the current charge. U.S. v. Brown, 148 F.3d 1003 (8th Cir. 1998).
8th Circuit says current offense must be prosecuted by indictment for statutory minimum to apply. (245) Defendant was sentenced to a statutory minimum sentence under 21 U.S.C. § 841(b)(1)(A), based on his previous drug convictions. Under § 851(a)(2), the government may file an information to establish the prior convictions if the defendant “either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” Defendant claimed the § 851 requirement of prosecution by indictment applied to the prior offense as well as the current charge. The Eighth Circuit disagreed because prior cases have held that only the current offense need be prosecuted by indictment. Defendant was prosecuted by indictment in this case, and the information detailing his prior drug offenses was properly filed. The district court did not err in sentencing him under § 841(b)(1)(A). U.S. v. Alaniz, 148 F.3d 929 (8th Cir. 1998).
8th Circuit holds type of methamphetamine irrelevant for mandatory minimum purposes. (245) Defendant was convicted of conspiring to distribute methamphetamine. He argued that the district court erred in determining that the substance involved was D-methamphetamine rather than L-methamphetamine. The Eighth Circuit found that defendant’s claim lacked merit since defendant was sentenced to the mandatory minimum 60-month sentence required by 21 U.S.C. § 841(b). The statute makes no distinction between D-methamphetamine and L-methamphetamine. U.S. v. Emmanuel, 112 F.3d 977 (8th Cir. 1997).
8th Circuit permits substantial assistance reduction in addition to retroactivity reduction. (245) Pursuant to the government’s substantial assistance motion under § 5K1.1, the court departed downward from 292 months and imposed a sentence of 204 months. A year later, the government moved under Rule 35(b) to reduce the sentence for post‑sentencing assistance, and the court reduced it to 131 months. Later, the applicable guideline was amended retroactively and defendant moved for a further reduction under 18 U.S.C. § 3582(c)(2). The government recommended a sentence of 106 months, and argued the court could go below the 120‑month mandatory minimum because of defendant’s “substantial assistance” under 18 U.S.C. § 3553(e). The district court ruled the government could not invoke § 3553(e) in the context of § 3582(c)(2), but on appeal, the Eighth Circuit disagreed, ruling that the government may seek a substantial assistance reduction below the statutory minimum in addition to a § 3582(c)(2) reduction. Section 3553(e) has no time limitation foreclosing such action. U.S. v. Williams, 103 F.3d 57 (8th Cir. 1996).
8th Circuit says marijuana guideline amendment cannot lower sentence below mandatory minimum. (245) Defendant was sentenced to 87 months for manufacturing and possessing with intent to manufacture more than 100 marijuana plants. He later filed a motion for reconsideration based on a November, 1995, retroactive amendment to § 2D1.1, which set a presumptive weight of 100 grams of marijuana per marijuana plant. The district court granted defendant’s motion, and imposed the minimum 60-month sentence required by 21 U.S.C. § 841(b)(1)(B). Defendant argued that the amendment made the statutory minimum sentence arbitrary and capricious. The Eighth Circuit held that the guideline amendment could not be applied to lower defendant’s sentence below the statutory minimum. and its mandatory minimum sentence provisions in 21 U.S.C. § 841(b)(1)(B) are constitutional, and the amendment did not make them unconstitutional. U.S. v. Marshall, 95 F.3d 700 (8th Cir. 1996).
8th Circuit holds that Hobbs Act robbery was “serious violent felony” under “three strikes” law. (245) Defendant was convicted of Hobbs Act violations after he and others robbed one convenience store at gunpoint and planned to rob another. The new federal “three strikes and you’re out” law, 18 U.S.C. § 3559(c), imposes a mandatory life sentence for persons convicted of three or more specified “serious violent felonies.” Defendant had three previous convictions for murder, robbery and conspiracy to commit murder. The Eighth Circuit upheld the application of the “three strikes” law, agreeing that the Hobbs Act robbery and defendant’s prior convictions all were “serious violent felonies.” The Hobbs Act robbery clearly qualified under § 3559(c)(2)(F)(ii) as a crime punishable by more than ten years that has as an element the use of force against another and involves by its nature a substantial risk that physical force against another may be used. The predicate convictions also were “serious violent felonies.” Both murder and robbery are specifically listed in paragraph (F)(i). U.S. v. Farmer, 73 F.3d 836 (8th Cir. 1996).
8th Circuit upholds federal “three strikes and you’re out” law. (245) Defendant received a mandatory life sentence under the new federal “three strikes and you’re out” law, 18 U.S.C. § 3559(c). The statute imposes a mandatory life sentence on persons convicted of three or more specified “serious violent felonies.” The Eighth Circuit upheld the constitutionality of the law, rejecting Eighth Amendment, double jeopardy, ex post facto, and equal protection challenges. The life term, under the circumstances of this case, did not constitute cruel and unusual punishment. Defendant was planned an armed robbery of a convenience store, and told his accomplices to shoot the store’s employees. The court had no discretion not to impose a life term. The statute did not violate double jeopardy because it did not subject defendant to new punishment for his previous crimes. There was no ex post facto violation, because the crime for which defendant was sentenced occurred after the effective date of the new statute. The fact that the statute might have a disparate impact on African-Americans was insufficient to show a constitutional violation. U.S. v. Farmer, 73 F.3d 836 (8th Cir. 1996).
8th Circuit remands where mandatory life sentence was not in place at time of crime. (245) Defendant was convicted of multiple counts stemming from a cocaine importation conspiracy. The district court sentenced defendant to life on the conspiracy charge because it believed that a life sentence was mandated by 21 U.S.C. § 841(a)(1)(ii). However, the required life sentence did not take effect until November 1988, well after the conspiracy ended in February 1988. The Eighth Circuit held that applying the mandatory life sentence violated the ex post facto clause since it was not in effect at the time of the crime. U.S. v. Lambros, 65 F.3d 698 (8th Cir. 1995).
8th Circuit affirms use of LSD carrier medium for mandatory minimum purposes. (245) In two different cases, defendants pled guilty to LSD charges. Both district courts calculated the weight of the LSD using the 0.4 mg per dose formula in amended § 2D1.1(c). However, for mandatory minimum purposes, the courts considered the weight of the carrier medium as provided in Chapman v. U.S., 500 U.S. 453 (1991). The Eighth Circuit, relying on its recent en banc decision in U.S. v. Stoneking, 60 F.3d 399 (8th Cir. 1995), affirmed the use of the Chapman approach for mandatory minimum purposes. U.S. v. Jacobs, 65 F.3d 96 (8th Cir. 1995); U.S. v. Demkier, 65 F.3d 94 (8th Cir. 1995).
8th Circuit forbids departure below mandatory minimum except for substantial assistance. (245) Defendant had a sentencing range of 97-121 months, but was subject to a mandatory minimum sentence of 120 months. The government court moved for a departure below the mandatory minimum based on defendant’s substantial assistance, and the court imposed a 96-month sentence. Defendant sought a further departure under § 5H1.4 based on the fact that he had AIDS-Related Complex (“ARC”), but the district court denied the motion. On appeal, the Eighth Circuit held that the government’s substantial assistance motion to depart below the mandatory minimum did not open the door for a further departure under § 5H1.4, because the district court lacked authority to depart further below the statutory minimum. Judge Wilson dissented. U.S. v. Rabins, 63 F.3d 721 (8th Cir. 1995).
8th Circuit finds criminal history error harmless because mandatory minimum applied. (245) Defendant argued that the district court miscalculated his criminal history score. The 8th Circuit held that any error was harmless because it could not affect defendant’s mandatory minimum sentence of 120 months. U.S. v. Johnson, 58 F.3d 356 (8th Cir. 1995).
8th Circuit reaffirms that § 3553(e) motion is required to depart below statutory minimum. (245) The government moved under § 5K1.1 for a downward departure, but did not make a separate motion under 18 U.S.C. § 3553(e). Defendant argued that the district court should have the discretion to depart below the statutory minimum whenever the government files a motion for a guideline departure under § 5K1.1. The Eighth Circuit held that it was bound by U.S. v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992), which held that a sentencing judge may not depart below a mandatory minimum absent a government motion under § 3553(e). Only an en banc court can overrule the case. Moreover, defendant waived any objection to his sentence by acknowledging in his plea agreement that five years was the statutory mandatory minimum, and by accepting the benefit of the plea. U.S. v. Polanco, 53 F.3d 893 (8th Cir. 1995).
8th Circuit upholds mandatory minimum because defendant was responsible for at least five grams of crack. (245) The district court found that defendant was responsible for 30 grams of crack cocaine. The Eighth Circuit upheld a mandatory minimum 120-month sentence under 21 U.S.C. § 841(b)(1)(B)(iii). Defendant was clearly responsible for at least five grams of crack based on police testimony that at his arrest he threw a plastic bag containing 5.2 grams of crack. This quantity, coupled with an unchallenged prior drug conviction, triggered the mandatory minimum. U.S. v. Smith, 40 F.3d 933 (8th Cir. 1994).
8th Circuit holds that using communication facility to facilitate drug offense is “felony drug offense.” (245) Defendant was convicted of distributing over a kilogram of heroin. He had a prior felony conviction under 21 U.S.C. § 843(b) for using a communication facility to facilitate the importation of a controlled substance. The 8th Circuit held that the § 843(b) offense was a “felony drug offense” under 21 U.S.C. § 841(b)(1)(A), and therefore defendant was subject to a mandatory minimum 20-year sentence. “Felony drug offense” is defined as “an offense that is a felony under any provision of this subchapter.” Both defendant’s instant offense and his prior offense were found in the same Subchapter and Part of Title 21. U.S. v. Karam, 38 F.3d 467 (8th Cir. 1994).
8th Circuit requires motion under 18 USC § 3553(e) to depart below mandatory minimum. (245) In U.S. v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992), the 8th Circuit held that when the government seeks a downward departure for substantial assistance only under § 5K1.1, but does not seek a departure under 18 U.S.C. § 3553e), the district court cannot depart below the statutory minimum sentence. Here, the 8th Circuit rejected defendant’s request to reconsider this issue. The court refused to recommend en banc reconsideration of the prior ruling. U.S. v. Sanchez, 32 F.3d 1330 (8th Cir. 1994).
8th Circuit reaffirms that drug quantity is not an element of conspiracy offense. (245) The 8th Circuit reaffirmed that the quantity of drugs involved in a conspiracy is not an essential element of the offense, and therefore the government need not prove drug quantity beyond a reasonable doubt. U.S. v. Sales, 25 F.3d 709 (8th Cir. 1994), abrogated on other grounds by U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000).
8th Circuit finds no error in refusal to depart below mandatory minimum. (245) Defendant argued that the district court mistakenly construed his motion for a downward departure as made under § 5K1.1, rather than § 5K2.11. Because the government did not move for a departure, the district court believed it lacked authority to depart downward. The 8th Circuit found no error. The statute that defendant violated, 21 U.S.C. § 841(b)(1)(B)(vii), carries a mandatory minimum sentence of five years. A district court may depart below a statutory mandatory minimum sentence only upon a government motion under 18 U.S.C. § 3553(e). Because there was no such motion, the district court could not depart below the mandatory minimum sentence. U.S. v. Pinson, 24 F.3d 1056 (8th Cir. 1994).
8th Circuit rejects constitutional challenge to mandatory minimums and guidelines. (245) Defendant argued that his statutory minimum sentence and the sentencing guidelines violated due process. The 8th Circuit, citing numerous previous cases, rejected the argument. U.S. v. Magee, 19 F.3d 417 (8th Cir. 1994).
8th Circuit reaffirms that indictment need not specify drug quantity to impose mandatory minimum. (245) Defendant, relying on the dissenting opinion of Judge Bright in U.S. v. Wood, 834 F.3d 1382 (8th Cir. 1987) and cases in other circuits, argued that the indictment must specify the quantity of drugs involved before a mandatory minimum sentence can be imposed. The 8th Circuit reaffirmed the majority’s opinion in Wood that quantity is not an element of the offense, but a sentencing factor that need not be charged in order to impose a mandatory minimum sentence. The court also rejected defendant’s claim that she did not receive notice that the 10-year mandatory minimum sentence might be imposed. She was notified in the plea agreement that the government sought to have the mandatory minimum imposed. U.S. v. Olness, 9 F.3d 716 (8th Cir. 1993).
8th Circuit upholds mandatory life sentence for continuing criminal enterprise. (245) The continuing criminal enterprise statute, 21 U.S.C. §848(b) provides for a mandatory life sentence for someone whose enterprise involves 30 kilograms of a mixture or substance containing methamphetamine. The 8th Circuit upheld the constitutionality of the mandatory life sentence against claims that it violated the doctrine of separation of powers, violated due process, constituted cruel and unusual punishment, and that the district court was without subject matter jurisdiction. These arguments are no more than criticisms of a legislative choice made by Congress. U.S. v. Hammer, 3 F.3d 266 (8th Cir. 1993).
8th Circuit says prior conviction was a felony despite misdemeanor-level punishment. (245) Defendant challenged a mandatory life sentence under 21 U.S.C. §841(b)(1), arguing that the government did not prove two prior felony drug convictions. The 8th Circuit found the government made the necessary showing. Although defendant negotiated a misdemeanor-level punishment by pleading guilty, he was convicted of a drug felony under California law that was a proper predicate offense under 21 U.S.C. §841(b). U.S. v. Mabry, 3 F.3d 244 (8th Cir. 1993), abrogation on other grounds recognized by U.S. v. Sheppard, 219 F.3d 766 (8th Cir. 2000).
8th Circuit vacates enhanced sentence where government failed to file §851 information. (245) Prior to the entry of defendant’s guilty plea, the government had not filed an information stating that it would rely on a prior drug conviction to enhance his sentence, as required by 21 U.S.C. §851a)(1). Defendant purported to waive this non-compliance after a colloquy at which neither the district court nor defense counsel advised him that his sentence could not be enhanced without the filing of the information. In a 28 U.S.C. §2255 petition, the 8th Circuit held that the court erred in enhancing defendant’s sentence under §841(b)(1)(B). This was an error that could be remedied under §2255, both because defendant’s counsel was ineffective in permitting him to waive §851(a)(1) non-compliance and in not appealing the unlawfully enhanced sentence, and also because §2255 expressly makes relief available if “the sentence was in excess of the maximum authorized by law.” Neary v. U.S., 998 F.2d 563 (8th Cir. 1993).
8th Circuit affirms one kilogram/one marijuana plant ratio and mandatory minimum sentence. (245) Because defendant’s offense involved 50 or more marijuana plants, each plant was treated as one kilogram of marijuana for sentencing purposes under guideline section 2D1.1(c). Because the offense involved more than 100 marijuana plants, defendant was subject to a mandatory minimum prison sentence of five years under 21 U.S.C. § 841(b)(1)(B)(vii). The 8th Circuit affirmed that the one plant/one kilogram ratio was not irrational and the 60-month mandatory minimum sentence was not unduly severe in violation of the 8th Amendment. Congress intended to punish marijuana growers based on their place in the distribution chain, rather than the predictable yield of their plants. The five-year sentence was not grossly disproportionate to the offense. The fact that unproductive male marijuana plants, which comprised one-half of his 147 plants, were assessed against him, did not render his sentence cruel and unusual. U.S. v. Coones, 982 F.2d 290 (8th Cir. 1992).
8th Circuit holds that New York conviction for criminal facilitation was not a “felony drug offense.” (245) 21 U.S.C. section 841(b)(1)(A) requires a 20-year mandatory minimum sentence when the crime involves five or more kilograms of cocaine and the defendant has a prior conviction for a “felony drug offense.” The 8th Circuit held that defendant’s New York state class C felony conviction for criminal facilitation did not constitute a prior “felony drug offense.” Under New York law, criminal facilitation does not require any mental culpability either to commit or participate in the underlying substantive offense. The statute does not specifically prohibit or restrict drug activity, but is more of a “catch all” criminal statute. It was unclear that Congress intended that a conviction for a crime which involved no mental culpability with respect to a substantive narcotics offense should serve as the basis for a 20 year mandatory minimum. Applying the rule of lenity, the conviction could not serve as a predicate felony drug offense. U.S. v. Pazzanese, 982 F.2d 251 (8th Cir. 1992).
8th Circuit rejects mandatory minimum sentence as grounds for downward departure. (245) Defendant’s guideline range was 78 to 97 months, but the district court departed downward to 60 months, citing the Sentencing Commission’s failure to consider the mandatory minimum sentences contained in 21 U.S.C. section 841(b). The 8th Circuit reversed, noting that the commentary to section 2D1.1 indicates that the base offense levels in section 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the minimum levels established by statute. Offense levels 26 and 32 establish guideline ranges with a lower limit as close the statutory minimum as possible. Had defendant possessed between five and 20 grams of crack, he would have received an offense level of 26 and a sentencing range of 63 to 78 months, which is close to the mandatory minimum 60 months. However, defendant possessed 23 grams of crack and so had an offense level of 28, which produced a guideline range of 78 to 97 months. Judge Bright dissented. U.S. v. Lattimore, 974 F.2d 971 (8th Cir. 1992).
8th Circuit says government waived objection to failure to impose mandatory minimum sentence. (245) The government argued that because the district court found that defendant had aided and abetted the manufacture and distribution of 100 kilograms of cocaine, the district court erred by failing to impose the mandatory minimum sentence of 10 years, as required by 21 U.S.C. section 841(b)(1)(A). The 8th Circuit agreed that the mandatory minimum sentence of 10 years was applicable to defendant, but found that the government had waived this argument by failing to present it at sentencing. Although it was plainly an error for the district court to sentence defendant below the statute’s minimum, defendant’s 108-month sentence (as opposed to the statute’s required 120 months) did not result in a miscarriage of justice. The government had ample notice and opportunity to object to the sentence after the district court notified it that the sentence might be as low as 108 months. U.S. v. Posters ‘N Things, 969 F.2d 652 (8th Cir. 1992), cert. granted, 113 S.Ct. 1410 (1993).
8th Circuit says defendant was not accountable for drug quantity alleged in indictment. (245) Although the court agreed with the presentence report’s determination that defendant could not be tied to more than the .5 grams that he actually sold, it felt that it was bound by the jury’s verdict to give defendant a mandatory minimum sentence of 10 years for conspiring to distribute at least 50 grams of crack. The 8th Circuit reversed. Although the district court read the indictment to the jury, the generic conspiracy instruction did not require the jury to link defendant to a specific quantity of crack. The evidence did not support a determination that defendant was aware that he had joined a large-scale conspiracy. For activities of a co-conspirator to be reasonably foreseeable to a defendant, they must fall within the scope of the agreement between the defendant and the other conspirators. Simply because a defendant knows that a dealer he works with sells large amounts of drugs to other people does not make the defendant liable for the dealer’s other activities. Defendant never received any benefits from his co-conspirators’ large quantity sales and received only a few rocks for his services. Judge Gibson dissented. U.S. v. Jones, 965 F.2d 1507 (8th Cir. 1992).
8th Circuit says first and second convictions under section 924(c) may arise in same indictment, but recommends rehearing en banc. (245) Defendant was convicted of six different drug offenses and two counts of using a firearm during a drug transaction in violation of 18 U.S.C. section 924(c). Although he had no prior felony convictions, defendant received a 44-year sentence: 19 years for the six drug offenses, a consecutive five year sentence for the first count of using a firearm during a drug crime, and an additional consecutive sentence of 20 years for the second count of using a firearm during a drug crime. The 8th Circuit affirmed. Section 924(c) mandates a five-year sentence for a first offense, and in the case of a second or subsequent conviction, a sentence of 20 years. Under Circuit precedent, a defendant’s first and second convictions may arise from counts alleged in the same indictment. Because section 924(c) might reasonably be read to require that an offender be convicted of his first offense before he commits the offense resulting in his second conviction, the panel suggested that this issue be reheard en banc. Judge Gibson dissented from the suggestion to rehear the issue en banc. U.S. v. Jones, 965 F.2d 1507 (8th Cir. 1992).
8th Circuit affirms sentencing drug conspirator to same mandatory minimum sentence as underlying offense. (245) Citing Bifulco v. U.S., 447 U.S. 381 (1980), defendant argued that his drug conspiracy conviction should not be subject to the mandatory minimum sentence applicable to the underlying substantive offense. The 8th Circuit rejected this contention because the drug conspiracy statute, 21 U.S.C. section 846, has been amended since Bifulco expressly to provide that convicted drug conspirators are subject to the same penalties as those convicted of the underlying offense. U.S. v. Askew, 958 F.2d 806 (8th Cir. 1992).
8th Circuit holds that section 5K1.1 does not authorize a departure below a mandatory minimum sentence. (245) The government filed a 5K1.1 motion for a downward departure based on defendant’s substantial assistance, but stressed that the motion was not being made under 18 U.S.C. section 3553(e), and did not affect the mandatory minimum sentence. Nonetheless, the district court departed below the 120-month mandatory minimum sentence and sentenced defendant to 36 months. The 8th Circuit reversed, holding that section 5K1.1 does not permit a sentencing judge to depart below a statutory mandatory minimum sentence. Although the Commission was empowered to provide for departures below mandatory minimum sentences, section 5K1.1 only discusses departures from the guideline range. A 5K1.1 motion is not equivalent to a motion under section 3553(e), and only section 3553(e) authorizes a sentence below a mandatory minimum sentence. The court disagreed with 9th and 2nd Circuit cases equating 5K1.1 motions with section 3553(e) motions. Senior Judge Heaney dissented. U.S. v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992).
8th Circuit finds that court was aware of its authority to depart downward. (245) Defendant was convicted of one drug count and one count of using a firearm during a drug trafficking offense in violation of 18 U.S.C. section 924(c)(1). A silencer was found among the weapons seized from defendant, but he was not charged with it because it was defective. As a result, defendant’s mandatory minimum sentence was five years, rather than 30. The government moved for a downward departure for substantial assistance, and the district court decreased the sentence from five years to three years on the drug charge, but imposed a five-year consecutive sentence on the firearm charge. The 8th Circuit rejected the claim that the court was unaware that it could sentence below the five-year minimum. After weighing the assistance defendant had provided and the benefit he received from the prosecution’s decision not to press the silencer charge, the court simply chose not to depart further. The district court also did not commit error in imposing consecutive sentences. The law clearly requires the firearms sentence to run consecutive to, and not concurrent with, any other sentence imposed. U.S. v. Carnes, 945 F.2d 1013 (8th Cir. 1991).
8th Circuit rejects disparity in charging decision as basis for downward departure. (245) Defendant received a 33-month sentence for armed robbery in violation of 18 U.S.C. section 2113(a) and (d), and a consecutive 60-month sentence for use of a firearm in violation of 18 U.S.C. section 924(c). He argued that the district court should have found that it had the authority to depart downward from the 60-month sentence required by section 924(c) because two persons convicted of the same conduct–robbing a bank with a firearm–could be charged and sentenced differently. One charged only with violating section 2113(a) & (d) would receive a much lighter sentence than one charged with violating both section 2113(a) (d) and section 924(c). According to defendant, this would violate the goal of unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. The 8th Circuit, noting that it had previously rejected this argument in U.S. v. Foote, 898 F.2d 659 (8th Cir.). U.S. v. Halford, 948 F.2d 1054 (8th Cir. 1991).
8th Circuit upholds life sentence for drug offense against 8th Amendment challenge. (245) The 8th Circuit rejected defendant’s claim that his life sentence without the possibility of parole for his drug felony violated the 8th Amendment. The court found that proportionality review was not required in light of the Supreme Court’s recent decision in Harmelin v. Michigan, 111 S.Ct. 2680 (1991), and that the 8th Amendment only forbids sentences that are grossly disproportionate. Here, Congress reasonably determined that offenses involving the distribution of cocaine base were at the root of some of the gravest problems facing the country. Defendant’s sentence was not grossly disproportionate to his offense. U.S. v. Johnson, 944 F.2d 396 (8th Cir. 1991)
8th Circuit holds section 851 notice must be filed before jury selection begins. (245) After the jury was selected, but not sworn, the government filed an amended information alleging two prior drug offenses for sentence enhancement purposes as required by 21 U.S.C. section 851. The 8th Circuit held that a section 851 notice must be filed prior to jury selection. “Such an interpretation allows the defendant ample time to determine whether he should enter a plea or go to trial, and plan his trial strategy with full knowledge of the consequences of a potential guilty verdict.” If the government encounters difficulty discovering prior convictions, section 851 allows it to seek a postponement of the trial. U.S. v. Johnson, 944 F.2d 396 (8th Cir. 1991).
8th Circuit affirms that a court may collaterally examine validity of prior convictions for section 924(e) purposes. (245) Defendant was convicted of being a felon in possession of a firearm and received an enhanced sentence under 18 U.S.C. section 924(e) for four prior convictions. He claimed that the prior convictions were invalid. The 8th Circuit upheld defendant’s ability to collaterally attack the validity of the prior convictions, even though at the time defendant was sentenced, the commentary to guideline section 4A1.2 forbade collateral attacks on prior convictions used to compute a defendant’s criminal history score. The court stated that while sentences greater than section 924(e)’s minimum sentence are governed by the guidelines, the minimum sentence itself is governed by section 924, an independent statutory authority. Circuit courts have consistently interpreted section 924(e) to permit collateral challenges to prior convictions. U.S. v. Day, 943 F.2d 1306 (11th Cir. 1991).
8th Circuit holds statutory minimum sentence to be applicable even if suggested guideline range is lower. (245) The Eighth Circuit affirmed the statutory minimum sentence of 15 years without parole for a defendant who had been convicted of being a felon in the possession of a firearm in violation of 18 U.S.C. § 924(e). The defendant claimed that under the guidelines, he should have received a much lower sentence. The court rejected his claim, pointing out that the guidelines specifically state that when the guideline range is lower than the statutory minimum sentence, the statutory minimum sentence shall be the guideline sentence. U.S. v. Savage, 863 F.2d 595 (8th Cir. 1988).
9th Circuit says charge dismissed after rehabilitation cannot be used to enhance drug sentence. (245) Under 21 U.S.C. § 841(b)(1)(A), a defendant convicted of an offense involving a specified level of certain controlled substances is subject to a 20-year mandatory minimum sentence if he committed the offense “after a prior conviction for a felony drug offense has become final.” Before his violation of § 841, defendant was charged with felony possession of methamphetamine. Pursuant to California Penal Code §§ 1000.1 and 1000.3, a defendant pleads guilty to a charge but may defer entry of judgment. If, during the period of deferral, defendant successfully completes rehabilitation, the criminal charge against him is dismissed. Defendant’s felony methamphetamine possession charge was dismissed under California Penal Code §§ 1000.1 and 1000.3. The Ninth Circuit held that a charge dismissed under §§ 1000.1 and 1000.3 is not a “conviction for a felony drug offense” that has become “final” and cannot serve as the basis for an enhancement under § 841(b). U.S. v. Suarez, 682 F.3d 1214 (9th Cir. 2012).
9th Circuit holds § 3553(a) does not authorize sentence below mandatory minimum. (245) Defendant pleaded guilty to a drug-trafficking offense carrying a ten-year mandatory minimum. Her guidelines range was 78 to 97 months. Defendant argued that there was a conflict between 18 U.S.C. § 3553(a), which requires a court to impose the lowest sentence necessary to achieve Congress’s sentencing goals, and the mandatory minimum, and that § 3553(a) gave the court authority to impose a sentence below the mandatory minimum. The Ninth Circuit held that § 3553(a) does not allow a district court to impose a sentence below the mandatory minimum. U.S. v. Wipf, 620 F.3d 1168 (9th Cir. 2010).
9th Circuit says crack sentence “based on” mandatory minimum, not range. (245) Defendant pleaded guilty to possession of crack cocaine. The district court calculated his sentencing range as 70-87 months, but because defendant had a prior felony drug conviction, he faced a mandatory minimum sentence of 120 months. The government moved under §5K1.1 and 18 U.S.C. §3553(e) for a downward departure from this sentence because of defendant’s substantial assistance, and the district court imposed a sentence of 90 months. When the Sentencing Commission lowered the sentencing ranges for crack cocaine offense, defendant sought a reduction of his sentence under 18 U.S.C. §3582(c)(2), which allows a court to reduce a sentence for a defendant “who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered by” the Commission. The Ninth Circuit held that defendant’s original sentence was “based on” the mandatory minimum, not the offense level set by the Guidelines, and therefore that he could not take advantage of §3582(c)(2). U.S. v. Jackson, 577 F.3d 1032 (9th Cir. 2009).
9th Circuit says Rule 11 does not apply to admission of prior conviction triggering sentence enhancement. (245) Under 21 U.S.C. §851, a defendant charged with certain drug-trafficking crimes is subject to an enhanced mandatory minimum sentence if the defendant has a qualifying prior felony drug conviction and the government files an information alleging that prior conviction. Prior to defendant’s trial on drug-trafficking crimes, the government filed an information under §851 alleging that defendant had a prior felony conviction. After trial, defendant admitted the allegations of the §851 information. On appeal, defendant argued that a court may not accept an admission to the allegations in a §851 information unless it conducts the colloquy required by Federal Rule of Criminal Procedure 11 for acceptance of a guilty plea. The Ninth Circuit held that Rule 11 does not apply to a defendant’s admission of a prior felony under §851. Instead, a court must follow the procedures set forth in §851. U.S. v. Reed, 575 F.3d 900 (9th Cir. 2009).
9th Circuit says offense involving meth precursor is a felony drug offense. (245) A defendant convicted of a drug-trafficking offense is subject to an enhanced mandatory minimum sentence if the defendant has a prior conviction for a “felony drug offense.” That term is defined to mean an offense involving “narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” Defendant had a prior offense for possession of a listed chemical (ephedrine) with the intent to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(d)(1) and 802(34)(C). At sentencing, he produced an expert declaration stating that ephedrine is not a narcotic, steroid, depressant, or stimulant. The Ninth Circuit held that defendant’s prior offense was a “felony drug offense” within the meaning of the statute because methamphetamine is a stimulant. U.S. v. Mincoff, 574 F.3d 1186 (9th Cir. 2009).
9th Circuit holds that double jeopardy does not bar appeal of failure to impose mandatory minimum. (245) Under 21 U.S.C. § 841(b), a defendant convicted of drug-trafficking is subject to an increased mandatory minimum sentence if he has a prior conviction for a felony drug offense. At defendant’s sentencing, the district court found that defendant’s prior conviction did not qualify as a felony drug offense and declined to impose the mandatory minimum. The government appealed the district court’s failure to impose the mandatory minimum. The Ninth Circuit held that the Double Jeopardy Clause does not bar the government from appealing a sentencing ruling that does not result in an acquittal. U.S. v. Rosales, 516 F.3d 749 (9th Cir. 2008).
9th Circuit says Washington simple possession is a felony drug offense. (245) Defendant was convicted of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 841(a). A defendant convicted of that offense is subject to an increased mandatory minimum sentence if he has a prior conviction for a “felony drug offense.” That term is defined as an offense punishable by imprisonment for more than one year under any state law “that prohibits or restricts conduct relating to narcotic drugs.” Defendant had a prior conviction under Wash. Rev. Code § 69.50.401 (d) for possession of a narcotic. That offense was subject to a maximum sentence of five years. The Ninth Circuit rejected defendant’s claim that a simple possession offense does not qualify as a “felony drug offense” and found that the prior conviction triggered the mandatory minimum sentence. U.S. v. Rosales, 516 F.3d 749 (9th Cir. 2008).
9th Circuit finds that mandatory minimum applies to reverse sting offense involving no actual drugs. (245) A defendant convicted of drug trafficking is subject to a mandatory minimum sentence under 21 U.S.C. § 841(b) if his offense involved specified quantities of the controlled substance at issue. Defendant was convicted of drug trafficking offenses based on a reverse sting operation in which defendant agreed to purchase two pounds of methamphetamine from an undercover officer. Defendant was arrested when he arrived with the cash to make the purchase, but no actual contraband was involved. The Ninth Circuit held that the mandatory minimum applicable to an offense involving 50 grams or more of methamphetamine applied even though no actual methamphetamine was involved in the commission of the offense. U.S. v. Macias-Valencia, 510 F.3d 1012 (9th Cir. 2007).
9th Circuit reverses § 851 mandatory minimum sentence where government moved to strike drug quantity from indictment. (245) Defendant was charged with possessing with intent to distribute more than 100 kilograms of marijuana. After indictment, the government filed a notice under 21 U.S.C. § 851 seeking a mandatory minimum sentence of 10 years because the offense involved more than 100 kilograms and defendant had a prior conviction. Prior to trial, the government learned that the amount of marijuana was less than 100 kilograms, so it moved to strike the allegation of drug quantity from the indictment. During trial, the government told the court that defendant was subject to a maximum 20-year sentence but did not mention a mandatory minimum. When the government files a notice under § 851, an offense involving 50 to 100 kilograms of marijuana carries a 10-year mandatory minimum. After conviction, defendant was sentenced to a 10-year mandatory minimum based on his prior conviction. The Ninth Circuit held that when the government moved to strike the drug quantity from the indictment, the government also revoked the § 851 notice. Accordingly, the court held, defendant was not subject to the mandatory minimum triggered by the filing of the § 851 notice. U.S. v. Sperow, 494 F.3d 1223 (9th Cir. 2007).
9th Circuit says dismissed prior conviction may trigger mandatory minimum. (245) Under 21 U.S.C. § 841(b), a defendant who has a prior conviction for a felony drug offense is subject to an increased maximum and a mandatory minimum sentence. Defendant had a prior felony drug conviction under state law, but that conviction had been dismissed with prejudice because defendant had complied with the terms of his sentence. The district court nevertheless held that defendant’s prior state conviction qualified as a prior conviction under § 841(b), and the Ninth Circuit affirmed. The Court of Appeals held that the determination whether defendant’s prior state conviction was a “conviction” under § 841 is a question of federal law and that a dismissed prior conviction may be used as a predicate for an enhanced sentence under § 841 as long as the dismissal does not establish that the conviction is unlawful. U.S. v. Norbury, 492 F.3d 1012 (9th Cir. 2007).
9th Circuit says that proof must show cocaine base is crack to trigger higher penalties. (245) Under 21 U.S.C. § 841(b)(1)(a)(iii), a defendant convicted of an offense involving 50 grams or more of cocaine base is subject to a 20-year mandatory minimum sentence; an offense involving the same amount of cocaine results in a 20-year maximum and no minimum sentence. An indictment alleged that defendant distributed 50 grams or more of cocaine base, and the jury found by special verdict that defendant distributed 50 grams or more of cocaine base. The Ninth Circuit held that to trigger the enhanced penalties for cocaine base in § 841(b), an indictment must charge, and the jury must find, that the substance in question is crack, not other forms of cocaine base. U.S. v. Hollis, 490 F.3d 1149 (9th Cir. 2007), abrogated as to cocaine base by DePierre v. U.S., 131 S.Ct. 2225, 180 L.Ed.2d 114 (2011), as recognized in U.S. v. Sykes, 658 F.3d 1140 (9th Cir. 2011).
9th Circuit holds that prior conviction triggering enhanced drug sentence does not require proof beyond a reasonable doubt. (245) Under 21 U.S.C. § 841(b)(1)(A), a defendant convicted of a drug-trafficking offense is subject to an increased sentence if he has “a prior conviction for a felony drug offense.” Defendant argued that under Apprendi, the government had to prove the prior felony conviction to a jury beyond a reasonable doubt because application of the enhancement turns on disputed facts concerning the nature of the prior offense. The Ninth Circuit disagreed on the ground that determining whether a prior conviction qualifies under § 841(b) as a “prior conviction for a felony drug offense” turns on the fact of conviction and the statutory definition of the prior offense and does not involve judicial fact-finding in violation of Apprendi. U.S. v. Hollis, 490 F.3d 1149 (9th Cir. 2007), abrogated as to cocaine base by DePierre v. U.S., 131 S.Ct. 2225, 180 L.Ed.2d 114 (2011), as recognized in U.S. v. Sykes, 658 F.3d 1140 (9th Cir. 2011).
9th Circuit holds amount of drugs is not an element of crime, but is only a sentencing factor. (245) In U.S. v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir. 1991), the 9th Circuit held that quantity of drugs is not an element of 21 U.S.C. §841(a) and is therefore relevant only at sentencing under §841(b). Thus it is not necessary to notify defendant before trial that he is subject to the enhanced sentencing provisions of subsection (b). The 9th Circuit found no basis for adopting a judicial rule similar to 21 U.S.C. §851 requiring notice of the sentence enhancement before trial. The cases of U.S. v. Royal, 972 F.2d 643, 650 (5th Cir. 1992), and U.S. v. Levy, 955 F.2d 1098, 1106 (7th Cir.), are in accord. U.S. v. Arias-Villanueva, 998 F.2d 1491 (9th Cir. 1993), implied overruling recognized by U.S. v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007).
9th Circuit holds that “second or subsequent” in § 924(c) is not void for vagueness. (245) A defendant convicted of using or carrying a firearm during or in relation to a drug trafficking or violent crime in violation of 18 U.S.C. § 924(c) is subject to a mandatory five-year sentence. For “a second or subsequent conviction” under § 924(c), a defendant must receive a 25-year mandatory sentence. Defendant was convicted of seven violations of § 924(c) and received a five-year sentence on the first conviction and a 25-year sentence for each of the other six convictions. She argued that the statute was void for vagueness because it did not put her on notice that she would receive a 25-year sentence for each “second or subsequent” conviction. The Ninth Circuit held that the statute was not unconstitutionally vague. U.S. v. Hungerford, 465 F.3d 1113 (9th Cir. 2006).
9th Circuit says maximum penalty for giving small amount of marijuana to child is two years. (245) The penalty provision for drug offenses, 21 U.S.C. § 841(d)(4), provides for a maximum sentence of one year for a first offender convicted of distributing a controlled substance whose offense involved the distribution of a small amount of marijuana for no remuneration. Under 21 U.S.C. § 859, a person who distributes drugs to a person under the age of 18 is subject to double the penalty that would be imposed under § 841. Defendant was convicted of distributing a small amount of marijuana to a child and sentenced to five years’ imprisonment. The Ninth Circuit held that the maximum sentence for defendant’s offense was double the penalty for distributing a small amount of marijuana for no remuneration, or two years. U.S. v. Durham, 464 F.3d 976 (9th Cir. 2006).
9th Circuit rules that mandatory minimum for 1000 marijuana plants does not violate Eighth Amendment. (245) Under 21 U.S.C. § 841(b)(1) (A)(vii), 1,000 or more marijuana plants, regardless of weight, is classified as equal to 1,000 or more kilograms of marijuana. A defendant whose offense involves 1,000 or more plants therefore is subject to a 10-year mandatory minimum. The Ninth Circuit rejected the argument that imposing a mandatory 10-year minimum for a offense involving more than 1,000 plants violated the Eighth Amendment ban on cruel and unusual punishments. U.S. v. Albino, 432 F.3d 937 (9th Cir. 2005).
9th Circuit finds no error in sentence based on quantity of drugs admitted by defendant. (245) Defendant and his accomplices engaged in negotiations to sell five pounds of methamphetamine to undercover officers, but never consummated the sale. He was convicted of conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a). At sentencing, he stipulated that his offense involved five pounds of methamphetamine. The Ninth Circuit held that because defendant admitted the quantity of meth involved in his offense, use of that quantity to set his offense level did not violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Labrada-Bustamante, 428 F.3d 1252 (9th Cir. 2005).
9th Circuit says that § 851 information need not be refiled before retrial. (245) Under 21 U.S.C. § 851, a defendant charged with certain drug offense is subject to an enhanced mandatory minimum sentence if the government files an information “before trial” alleging the prior conviction. Prior to defendant’s first trial on drug trafficking charges, the government filed a § 851 information alleging that defendant had a prior felony drug conviction. On appeal, defendant’s conviction was reversed for trial error. Prior to defendant’s second trial, the government did not file a new § 851 information. The Ninth Circuit held that the government is not required to refile a § 851 information prior to a defendant’s retrial. U.S. v. Mayfield, 418 F.3d 1017 (9th Cir. 2004).
9th Circuit says drug statutes remain constitutional after recent Supreme Court Apprendi interpretation. (245) In U.S. v. Buckland, 289 F.3d 558 (9th Cir. 2001) (en banc), the court held that the drug statutes, 21 U.S.C. §§ 841 and 960, were not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466(2000), because they allocated to the judge the determinations of drug quantity and type. The court reasoned that it is irrelevant whether a given fact is labeled as a “sentencing factor” or “element”; instead, it must be submitted to the jury if it increases the sentence for the offense. Here, the Ninth Circuit held that the Supreme Court’s decision in Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013), which held that mandatory minimum sentences were not subject to Apprendi, does not undercut or require reconsideration of Buckland. U.S. v. Hernandez, 322 F.3d 592 (9th Cir. 2002).
9th Circuit finds mandatory minimum sentence violated Apprendi even though it did not exceed statutory maximum for offense proved at trial. (245) Defendant was convicted of drug conspiracy at a bench trial in which he stipulated that he had agreed to transport 18 kilograms of marijuana into the U.S. This subjected him to a maximum sentence of five years under 21 U.S.C. § 841(b)(1)(D). However, at sentencing, the court found by a preponderance of the evidence that defendant was also responsible for marijuana seized from other conspirators. This amount yielded a sentencing range under the Guidelines of 37 to 46 months, but also increased the statutory maximum to 40 years, with a mandatory minimum of five years. The court sentenced defendant to five years. The Ninth Circuit held that the district court’s drug quantity finding violated Apprendi because it exposed the defendant to a 40-year maximum sentence. The fact that the five-year sentence was within the statutory maximum for the drug quantity to which he stipulated at trial did not make the error harmless, because the five-year mandatory minimum sentence resulted from district court’s finding at sentencing, not from the stipulated amount. U.S. v. Velasco-Heredia, 319 F.3d 1080 (9th Cir. 2003).
9th Circuit, en banc, says strict compliance with § 851 is not required for mandatory minimum sentence. (245) A drug defendant is subject to increased maximum and mandatory minimum sentences under 21 U.S.C. § 851, if the government files and serves an information alleging a prior felony conviction before defendant’s trial or guilty plea. Here, defendant agreed to plead guilty, and on the day of the change-of-plea hearing, the prosecutor, who was in Fairbanks, Alaska, filed and mailed a § 851 information. The information mistakenly listed the wrong state for the prior conviction. Later that day, in Anchorage at the change-of-plea hearing, defendant acknowledged that he had a prior felony drug conviction and that it subjected him to a mandatory minimum sentence. The court neglected, however, to ask defendant whether he affirmed or denied the prior conviction, as § 851 requires. Sitting en banc, the Ninth Circuit held that the information alleged sufficient facts to put defendant on notice of the conviction alleged. The court also held that the government had complied with the service requirement by mailing the information before the hearing; and that defendant received constitutionally adequate notice of the information. Finally, in light of defendant’s admission that he had the prior conviction and that it subjected him to a mandatory minimum sentence, the district court’s failure to ask defendant if he affirmed or denied the prior conviction was not plain error. U.S. v. Severino, 316 F.3d 939 (9th Cir. 2003) (en banc).
9th Circuit holds jury’s finding that substance contained a “detectable amount” of cocaine base triggered mandatory minimum. (245) Under 21 U.S.C. § 841(b)(1)(A), a mandatory minimum sentence must be imposed if the offense involved specified quantities of “a mixture or substance containing a detectable amount” of the controlled substance. By contrast, the mandatory minimum provision for cocaine base (§ 841(b)(1) (A)(iii)) does not contain the “detectable amount” phrase, and instead is triggered by a finding that the offense involved “50 grams or more of a mixture or substance . . . which contains cocaine base.” At defendant’s trial, the jury nevertheless found that the substance contained a “detectable amount” of cocaine base. The district court declined to impose the mandatory minimum sentence, ruling that the statutory language required the jury to find more than a detectable amount of cocaine base. The Ninth Circuit reversed, holding that a jury finding of the threshold quantity of a mixture or substance containing a detectable amount of cocaine base was sufficient to require the mandatory minimum sentence. U.S. v. Bert, 292 F.3d 649 (9th Cir. 2002).
9th Circuit enforces five-year statute of limitations for challenging priors used to enhance sentence. (245) Under 21 U.S.C. § 851, a defendant is permitted to challenge a prior conviction at sentencing only if the conviction occurred within five years of the filing of information alleging it. Here, defendant was convicted of a drug crime in Germany in 1991 and the prosecutor filed the 851 information on April 8, 1998. Defendant argued that the prosecutor delayed filing the information until the five-year statute of limitations had run, thereby depriving him of his right to challenge the conviction. The Ninth Circuit rejected the argument, stating that the statute only requires that the prosecutor file the information “before trial, or before entry of a guilty plea,” and here it was filed a month before the trial began. “The prosecutor therefore complied with the statute.” In a footnote, the court noted that the prosecutor delayed filing the information at defendant’s request as part of ongoing plea negotiations, and the court gave defendant an opportunity to challenge the prior conviction notwithstanding the statutory bar. U.S. v. Tavakkoly, 238 F.3d 1062 (9th Cir. 2001).
9th Circuit holds drug quantity finding violated Apprendi but was not plain error. (245) Defendant was convicted of distribution of an unspecified quantity of methamphetamine, with a statutory maximum sentence of 20 years under 21 U.S.C. § 841(b)(1)(C). However at sentencing, the judge found by a preponderance that he distributed 50 grams or more of meth, thereby increasing his statutory maximum sentence to life under § 841(b)(1)(A). This violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), which requires facts which increase the statutory maximum sentence to be submitted to the trier of fact and found beyond a reasonable doubt. In this case, however, the Ninth Circuit found no plain error because defendant was sentenced to 168 months, which was “substantially less than the twenty-year prescribed statutory maximum to which [defendant] was subject under the facts as found by the jury.” Thus, the increase in the maximum penalty had “no effect” on the sentence that defendant actually received and the Apprendi error did not affect his “substantial rights.” U.S. v. Garcia-Guizar, 227 F.3d 1125 (9th Cir. 2000).
9th Circuit says court generally cannot impose a sentence below a statutory minimum. (245) In an en banc opinion, the Ninth Circuit said that as a general rule, district courts cannot impose a sentence below a statutory mandatory minimum. See U.S. v. Riewe, 165 F.3d 727, 728-29 (9th Cir. 1999). The court noted that an exception to this rule exists if the government moves, pursuant to § 5K1.1, for a downward departure based on the defendant’s substantial assistance to the authorities. But in this case, defendant provided no such assistance and thus the district court “had no authority to depart from the mandatory minimum five-year sentence under 18 U.S.C. § 924(c).” U.S. v. Working, 224 F.3d 1093 (9th Cir. 2000) (en banc).
9th Circuit reverses exclusion of marijuana plants to punish government misconduct. (245) In a 2-1 opinion, the Ninth Circuit reversed the district court’s exclusion of 2,200 marijuana plants, which reduced the mandatory minimum sentence from ten years to five years. Relying on a leading sentencing treatise, the majority held that the court lacked the authority to refuse to impose the ten-year mandatory minimum. In pleading guilty, the defendants acknowledged responsibility for 1,000-4,000 plants. The majority found no case sanctioning the suppression of lawfully seized evidence at sentencing as a remedy for government misconduct. And it found no authority for applying the exclusionary rule to sentencing proceedings. Finally, “the Koon rationale for departure from a guideline range, see Koon v. U.S., 518 U.S. 81 (1996), has no application in a statutory minimum case.” Judge Reinhardt dissented, arguing that the district court had discretion to exclude the 2,200 marijuana plants at sentencing as a sanction for government misconduct. U.S. v. Haynes, 216 F.3d 789 (9th Cir. 2000).
9th Circuit rules erroneous § 851 information gave sufficient notice. (245) Before trial, the government filed an information under 21 U.S.C. § 851 alleging that defendant had a prior federal drug conspiracy conviction for possession with intent to distribute cocaine. The information alleged the wrong year. The prior judgment was entered on July 23, 1991, not July 23, 1996. However, everything else was correct: the case number, the court, the charge, the description of the prior offense, the month of the conviction and the state in which he was convicted. When defendant was arraigned on the information he denied the conviction. After trial, when the error was discovered, the court refused to increase the sentence for the prior conviction because of the error. The government appealed and the Ninth Circuit reversed, holding that the information gave adequate notice under § 851 because of the other details in the information. The statute itself says that “clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.” U.S. v. Hamilton, 208 F.3d 1165 (9th Cir. 2000).
9th Circuit reverses “schoolyard” increase where conviction was under § 841. (245) Defendant pled guilty to distributing cocaine base in violation of 21 U.S.C. § 841, in return for dismissal of counts charging distribution of cocaine base within 1,000 feet of a school. At sentencing, the district court, sua sponte, increased the sentence by two levels under § 2D1.2, for conduct occurring near a protected location. The Ninth Circuit reversed, holding that when a defendant is convicted only under § 841, the increase under § 2D1.2 does not apply, because § 2D1.2 does not list § 841 as one of the offenses to which it applies. The panel rejected the government’s argument that selling within 1,000 feet of a school was “relevant conduct,” because “[s]ection 1B1.3 does not envision consideration of ‘relevant conduct’ in ascertaining which guideline to apply.” The Fifth Circuit reached the same result in U.S. v. Chandler, 125 F.3d 892 (5th Cir. 1997). The Fourth and Eleventh Circuits have gone further, holding that § 2D1.2 does not even apply when the defendant is convicted of conspiracy under § 846. U.S. v. Locklear, 24 F.3d 641 (4th Cir. 1994); U.S. v. Saavedra, 148 F.3d 1311 (11th Cir. 1998). On the other hand, the Sixth and Eighth Circuits in U.S. v. Benjamin, 138 F.3d 1069 (6th Cir. 1998); and U.S. v. Oppedahl, 998 F.2d 584 (8th Cir. 1993) have approved use of § 2D1.2 where defendant is convicted of a drug conspiracy under § 846 because the Statutory Index in Appendix A for § 846 lists § 2D1.2 as one of many possible guidelines that may apply. U.S. v. Crawford, 185 F.3d 1024 (9th Cir. 1999).
9th Circuit uses state conviction to enhance sentence even if it was part of the same conspiracy. (245) Defendant argued that his prior California state conviction was part of the same conspiracy for which he was charged in this case. Thus, he claimed that it should not have been treated as a prior conviction for enhancement under § 841(b)(1)(A). The Ninth Circuit rejected this argument, relying on U.S. v. Baker, 10 F.3d 1374, 1420 (9th Cir. 1993), which held that the fact that the federal and state charges “derive in part from the same activity does not preclude using the state convictions to enhance the federal sentence.” U.S. v. VanDoren, 182 F.3d 1077 (9th Cir. 1999).
9th Circuit holds defendant waived challenge to prior conviction by failing to raise it in response to § 851 information. (245) Under 21 U.S.C. § 851(c)(1), “[i]f the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information.” Subsection (c)(2) says that “[a]ny challenge to a prior conviction, not raised by response to the information before an increased sentence is imposed in reliance thereon, shall be waived unless good cause is shown for failure to make a timely challenge.” In this case, defendant filed a response to the government’s information, but he did not challenge the “finality” of the California conviction, and offered no reason why he did not raise the issue in the district court. Accordingly, the Ninth Circuit deemed the issue waived. U.S. v. VanDoren, 182 F.3d 1077 (9th Cir. 1999).
9th Circuit says mandatory minimum prevents applying guideline reductions. (245) Defendant argued that the district court erred in not granting downward reductions for his role in the offense and acceptance of responsibility. The Ninth Circuit held that he was not entitled to any downward adjustments because he received the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). Moreover, guideline § 5G1.1(b) provides: “Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence. U.S. v. VanDoren, 182 F.3d 1077 (9th Cir. 1999).
9th Circuit holds telephone count is a “felony drug offense” for mandatory minimum purposes. (245) Defendant was sentenced to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) because he had “two or more prior convictions for a felony drug offense.” The Ninth Circuit held that his prior conviction for using a communications facility to facilitate a drug offense, in violation of 21 U.S.C. § 843(b), qualified as a “felony drug offense” for enhancement under § 841(b). The panel followed the earlier decision in U.S. v. Vea-Gonzales, 999 F.2d 1326, 1330 (9th Cir. 1993) which construed the guidelines the same way. The Fifth and Eighth Circuits have reached the same conclusion as to the statute. U.S. v. Mankins, 135 F.3d 946, 949 (5th Cir. 1998); U.S. v. Karam, 37 F.3d 1280, 1289 (8th Cir. 1994). A communications offense under 21 U.S.C. § 843(b) necessarily relates to a drug offense. U.S. v. Martinez, 182 F.3d 1107 (9th Cir. 1999).
9th Circuit dissent chides panel for rebuking Congress for mandatory minimum sentences. (245) In the panel opinion in this case, U.S. v. Harris, 154 F.3d 1082 (9th Cir. 1998), the Ninth Circuit held that defendant’s ninety-five-year sentence for multiple armed robberies was not cruel and unusual. However, the panel urged Congress to reconsider its scheme of mandatory consecutive minimum sentences. In response, Judge Kozinski dissented from the denial of rehearing en banc, stating that it was not “appropriate to use an opinion of this court as a vehicle for political lobbying.” Judges Brunetti, O’Scannlain, Silverman and Graber joined this part of the dissent. In addition, writing for himself alone, Judge Kozinski offered a lengthy defense of mandatory minimum sentences, stating that “a legislator might consider a wealth of data showing quite convincingly that rehabilitation simply does not work for violent criminals – and that those who purport to determine when such criminals have been ‘rehabilitated’ are frequently and tragically wrong.” He opined that “[r]ational law makers could surely conclude that justice consists, not in a highly uncertain and enormously costly effort to rehabilitate those who have violated the rights of others again and again, but in protecting citizens from the predation of remorseless criminals.” U.S. v. Harris, 165 F.3d 1277 (9th Cir. 1999) (dissent from denial of rehearing en banc in U.S. v. Harris, 154 F.3d 1082 (9th Cir. 1998).
9th Circuit says agreement to specific sentence under Rule 11(e)(1)(C) bars appeal. (245) In his plea agreement, defendant agreed to a specific sentence pursuant to Fed. R. Crim. P. 11(e)(1)(C). Under 18 U.S.C. § 3742(c)(1), the defendant may not appeal unless the sentence imposed is greater than the sentence set forth in the plea agreement or the sentence violates the law or is based on an incorrect application of the sentencing guidelines. In this case defendant was given the minimum sentence permitted under 21 U.S.C. § 841. Such a sentence is not illegal, see U.S. v. Baramdyka, 95 F.3d 840, 843-44 (9th Cir. 1996) (“[B]ecause the sentence imposed was well within the statutory maximum, it is not illegal and therefore that exception is unavailable”). Nor is such a sentence guidelines-based. Therefore, the Ninth Circuit held that 18 U.S.C. § 3742 barred appeal of defendant’s sentence. U.S. v. Littlefield, 105 F.3d 527 (9th Cir. 1997).
9th Circuit says mandatory minimum prevents resentencing on retroactive amendment even though “safety valve” might apply. (245) Defendant was sentenced to a mandatory minimum term of 60 months for growing more than 100 marijuana plants. Thereafter, on Sept. 23, 1994, the “safety valve” provision in 18 U.S.C. § 3553(f) became effective. Then on November 1, 1995, the Commission reduced the marijuana plant equivalency from 1 kilogram to 100 grams of marijuana, retroactively. Defendant moved for resentencing under the retroactive amendment, but the court denied the motion on the ground that the amendment did not affect defendant’s statutory 60-month mandatory minimum sentence. On appeal, the Ninth Circuit affirmed, ruling that the change in the marijuana equivalency tables in the guidelines did not affect defendant’s’ sentence and therefore the district court had no authority to reduce the sentence under 18 U.S.C. § 3582(c)(2). The “safety valve” provision did not provide an independent basis for reducing his sentence because that provision is not retroactive and defendant was not eligible for resentencing. U.S. v. Mullanix, 99 F.3d 323 (9th Cir. 1996).
9th Circuit says excluding drugs for sentencing entrapment may reduce sentence below mandatory minimum amount. (245) Relying on U.S. v. Naranjo, 52 F.3d 245, 246 (9th Cir. 1995) the Ninth Circuit held that a district court may subtract the amount of drugs tainted by sentencing entrapment from the total quantity of drugs attributable to the defendant for purposes of establishing a mandatory minimum sentence. The court noted that this is in accord with the First Circuit’s ruling in U.S. v. Montoya, 62 F.3d 1, 3 (1st Cir. 1995). In the present case, the district court did not think it had discretion to reduce the amount of cocaine attributable to the defendant by the amount tainted by sentencing entrapment. Accordingly, the court vacated the sentence and remanded for resentencing. The court expressed “no opinion” on the merits of defendant’s claim of sentencing entrapment nor the precise quantity of cocaine defendant was predisposed to distribute. U.S. v. Castaneda, 94 F.3d 592 (9th Cir. 1996).
9th Circuit acknowledges that carrier medium must be included in weight of LSD for mandatory minimum purposes. (245) In its original opinion in this case, U.S. v. Muschik, 49 F.3d 512 (9th Cir. 1995), the Ninth Circuit held that the guideline weight of 0.4 mg per dosage unit of LSD must be used not only for calculating the guideline sentence, but also when computing mandatory minimum sentences for LSD under 21 U.S.C. § 841(b)(1), regardless of the actual weight of the carrier medium. That decision was overruled by the Supreme Court’s decision in Neal v. U.S., 516 U.S. 284 (1996), and the Supreme Court thereafter vacated the Ninth Circuit’s decision in this case. On remand, the Ninth Circuit followed the Neal decision and held that in calculating the mandatory minimum sentence under 21 U.S.C. § 841(b)(1), the entire weight of the LSD, including the carrier medium, must be included. U.S. v. Muschik, 89 F.3d 641 (9th Cir. 1996).
9th Circuit says statutory drug enhancements in 841(b) apply to conspiracy convictions. (245) Defendant argued that it was improper to apply the life sentence enhancement of 21 U.S.C. § 841(b) to him because he was only convicted of conspiracy under § 846. The Ninth Circuit said this argument was foreclosed by the language of § 846, which says that a person who conspires to distribute a controlled substance is subject to the same penalties prescribed for a § 841(b) offense. Any doubt about this was put to rest by U.S. v. Dabdoub-Canez, 961 F.2d 836 (9th Cir. 1992), which held that a conspiracy conviction under § 846 carries with it the same mandatory minimum sentence as a conviction for the corresponding substantive offense under § 841. U.S. v. O’Brien, 52 F.3d 277 (9th Cir. 1995).
9th Circuit says 5G1.3 permits sentence below mandatory minimum for Armed Career Criminal. (245) Defendant was convicted in state court of armed robbery with a handgun. Thereafter, he was convicted in federal court of being a felon in possession of a firearm (the handgun), and was found to be an armed career criminal under 18 U.S.C. § 924(e), which carries a 180-month mandatory minimum sentence. His guideline sentence of 188 months included four levels for using the firearm in the state robbery. Defendant sought to have his sentence reduced for the 12 months he had already served on the state robbery, citing USSG 5G1.3(b), which requires such a reduction where “the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense.” The Ninth Circuit rejected the district court’s conclusion that any credit was up to the Bureau of Prisons, holding that the sentence reduction was appropriate, even though this meant that defendant’s actual sentence would fall below the statutory mandatory minimum. U.S. v. Drake, 49 F.3d 1438 (9th Cir. 1995).
9th Circuit requires “foreseeability” finding in calculating drugs for statutory minimum. (245) In U.S. v. Castaneda, 9 F.3d 761, 769 (9th Cir. 1993), the Ninth Circuit held that under the statutory minimum provisions of 21 U.S.C. § 841(b), the court must “assess a defendant’s ‘individual . . . level of responsibility’ for the amount of drugs involved in an offense by determining, in accord with the guidelines, the amount that the defendant ‘could reasonably foresee . . . would be involved’ in the offense of which he was guilty.” (quoting U.S. v. Becerra, 992 F.2d 960, 967 n.2 (9th Cir. 1993). Here, the district court erred in failing to make this determination. However, the error was harmless because, if this were a guidelines case, guideline § 1B1.3, Application Note 2, Illustration (a)(1), would have required the judge to find defendant responsible for all the marijuana in the van in which defendant was a passenger. U.S. v. Nunez-Carreon, 47 F.3d 995 (9th Cir. 1995).
9th Circuit says failure to timely respond to § 851 information waived evidentiary hearing on prior conviction at sentencing. (245) Defense counsel’s failure to timely respond to an information under 21 U.S.C. § 851 alleging a prior conviction, waived defendant’s right to an evidentiary hearing challenging the prior conviction at sentencing. The 9th Circuit held trial counsel’s failure to recognize the alleged “Boykin problems” when she read the information was not good cause justifying her failure to investigate and file a timely written response under 21 U.S.C. § 851(c)(2). U.S. v. Stephens, 35 F.3d 451 (9th Cir. 1994).
9th Circuit says ban on probation applies despite substantial assistance motion. (245) A provision of 21 U.S.C. § 841(b)(1)(A) says, “Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph.” The 9th Circuit held that this ban on probation applies even when the government makes a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. In so holding, the court followed the Sixth and Seventh Circuits in U.S. v. Thomas, 930 F.2d 526 (7th Cir.), cert. denied, 112 S.Ct. 171 (1991) and U.S. v. Snelling, 961 F.2d 93-96-97 (6th Cir. 1991). Thus, the district court properly ruled that it had no discretion to depart downward to probation in response to the government’s substantial assistance motion. U.S. v. Roth, 32 F.3d 437 (9th Cir. 1994).
9th Circuit says departure must be computed before mandatory minimum is applied. (245) The 9th Circuit reversed an upward departure from the 10 year statutory minimum, because the judge did not base the departure on the underlying guideline sentence, but instead departed upward from the mandatory minimum sentence. “[T]he existence of a mandatory minimum sentence does not alter the manner in which a district court determines the appropriate extent of a departure: a court must determine a defendant’s offense level and appropriate criminal history category, including departures from the record and a criminal history category, just as it would in an ordinary case.” If the resulting sentencing range is under the statutory minimum, the court must impose the mandatory minimum sentence. It may not depart further. The court acknowledged that its decision was contrary to the 5th Circuit’s opinions in U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992), and U.S. v. Doucette, 979 F.2d 1042 (5th Cir. 1992). U.S. v. Rodriguez-Martinez, 25 F.3d 797 (9th Cir. 1994).
9th Circuit excludes personal use amounts in calculating mandatory minimum sentence. (245) Defendant was convicted of possession with intent to distribute methamphetamine. He claimed he intended to use part of the methamphetamine and to share the rest with his friends. Because the total amount exceeded 100 pure grams, the district court imposed the mandatory minimum sentence of 10 years. The Ninth Circuit reversed and remanded for a factual determination of the amount of drugs defendant intended to distribute. 21 U.S.C. §841(a)(1) does not criminalize mere possession of drugs, only possession with intent to distribute. As a result, the sentence depends on whether the defendant intended to distribute the mandatory minimum quantity. The principle set forth in U.S. v. Kipp, 10 F.3d 1463 (9th Cir. 1993), that quantities of drugs possessed for personal use are not part of the same course of conduct as those possessed with intent to distribute, controlled the decision in this case. U.S. v. Rodriguez-Sanchez, 23 F.3d 1488 (9th Cir. 1994), overruled on other grounds by U.S. v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000).
9th Circuit finds mandatory minimum inapplicable where only ephedrine sold. (245) Defendant negotiated to sell 1/4 pound of methamphetamine to an undercover agent and was convicted of attempting to sell methamphetamine. However, the substance he possessed was ephedrine, not methamphetamine. The Ninth Circuit held that the mandatory minimum five year term under 21 U.S.C. § 841(b)(1)(B)(viii) did not apply to his case because the substance did not contain “a detectable amount of methamphetamine”. However, there was nothing to indicate that the trial court used the mandatory minimum. Instead, it imposed the 60-month sentence based the sentencing guidelines. U.S. v. Steward, 16 F.3d 317 (9th Cir. 1994).
9th Circuit says attempt under §846 carries same mandatory minimum sentence as substantive offense. (245) In U.S. v. Dabdoub-Kanez, 961 F.2d 836, 838 (9th Cir. 1992), the 9th Circuit held that “a conspiracy conviction under section 846 carries with it the same mandatory minimum sentence as a conviction for the corresponding substantive offense under section 841.” In the present case, the 9th Circuit saw “no reason to distinguish attempt under section 846 from conspiracy under the same section.” U.S. v. Steward, 16 F.3d 317 (9th Cir. 1994).
9th Circuit upholds prosecutor’s arbitrary decision to seek mandatory minimum sentence. (245) Defendant was prosecuted in federal court for a drug offense that carried a mandatory sentence of five years in federal court and 0-90 days in state court. The government acknowledged that the prosecution was in federal court primarily because of the stiffer penalties and more rigorous forfeiture provisions and also that the task force that referred defendant’s case had no written policies for making referrals. After the district court refused to impose the mandatory term, the government appealed defendant’s sentence, but not a similar non-mandatory sentence in another case involving more drugs. The case was remanded and the mandatory sentence was imposed. Defendant appealed. The 9th Circuit was inclined to agree with the district court that the prosecution produced “bizarre results” but found no due process or Eighth Amendment violations. The court has no jurisdiction to review arbitrary charging decisions, nor is there a remedy for the prosecutor’s decision to appeal one defendant’s sentence and not another. U.S. v. Oakes, 11 F.3d 897 (9th Cir. 1993).
9th Circuit upholds enhancement for prior drug felony despite claims that it was “related” and not final. (245) Title 21 U.S.C. section 841(b)(1)(C) provides for an enhancement up to 10 years if the offense is committed “after one or more prior convictions . . . for a felony under any . . . law of a state . . . relating to narcotic drugs . . . have become final.” Defendant argued that his sentence enhancement was improper because (1) the state convictions were related to the charges in the federal trial and (2) his entire involvement in the methamphetamine conspiracy predated the finality of his state convictions. The 9th Circuit rejected these arguments. The fact that the federal charges derived in part from the state activity did not preclude using the state convictions to enhance the federal sentence. Moreover, defendant continued to participate in the federal conspiracy after his state felony convictions became final. U.S. v. Baker, 10 F.3d 1374 (9th Cir. 1993).
9th Circuit says statutory minimum prevented court from departing downward. (245) When a statute requires a sentence different from that set by the guidelines, the statute controls. U.S. v. Sharp, 883 F.2d 829, 831 (9th Cir. 1989); U.S.S.G. section 5G1.1(b). Because the statutes under which defendant was convicted carried a ten year mandatory minimum, the district court’s failure to grant a downward departure based on defendant’s minor role as a “mule” was not error. U.S. v. Conkins, 9 F.3d 1377 (9th Cir. 1993).
9th Circuit does not address argument where sentence exceeded mandatory minimum. (245) Defendant argued that the ten year mandatory minimum sentence in 21 U.S.C. § 841(b) violated due process unless the court found that defendant had sufficient knowledge of the quantity of drugs involved. However, since the district court properly sentenced defendant to 121 months, one month more than the mandatory minimum, the court found it unnecessary to address defendant’s challenge to the mandatory minimum sentence. U.S. v. Cueto, 9 F.3d 1438 (9th Cir. 1993).
9th Circuit suggests that mandatory minimum is proper even if defendant does not know quantity. (245) Relying on Judge Weinstein’s opinion in U.S. v. Ekwunoh, 813 F.Supp. 168 (E.D.N.Y. 1993), [later reversed, U.S. v. Ekwunoh,12 F.3d 368 (2nd Cir. 1993)] defendant argued that applying a ten year minimum mandatory sentence violates due process unless the district court finds that the defendant knew the quantity of drugs involved. The 9th Circuit found it unnecessary to decide the issue, but in a footnote indicated that Judge Weinstein’s opinion “may be misguided in light of the failure of this controversial interpretation of drug sentencing laws to gain acceptance at the circuit level. See U.S. v. Pineda, 847 F.2d 64 (1988) (imposition of minimum sentence under 21 U.S.C. § 841 without showing knowledge of quantity does not violate due process); see also U.S. v. Klein, 860 F.2d 1489 (9th Cir. 1988).” U.S. v. Cueto, 9 F.3d 1438 (9th Cir. 1993).
9th Circuit says court need not impose mandatory minimum even though quantity is in indictment. (245) The district court ruled that because the conspiracy count specified mandatory minimum quantities of heroin and cocaine, it was not free to determine whether the drugs attributable to defendants were less than the amount necessary to trigger the mandatory minimum. The Ninth Circuit found that the sentencing court’s responsibility to determine the quantity of drugs attributable to a defendant is not altered by the fact that the amount involved in a drug conspiracy is specified in the indictment. The error was harmless as to the defendant who acknowledged he was aware of a co-conspirator’s possession of twenty kilos of cocaine. However, the error required reversal as to a second defendant who was apparently involved with substantially smaller amounts of a controlled substance. U.S. v. Castaneda, 9 F.3d 761 (9th Cir. 1994).
9th Circuit finds prior convictions which were separate criminal episodes justified statutory enhancement under 21 U.S.C. §841(b)(1)(A). (245) Defendant was convicted of drug offenses under 21 U.S.C. §841(a)(1). Because the district court found defendant had two prior convictions for felony drug offenses, it imposed a mandatory term of life imprisonment §841(b)(1)(A). Defendant argued the offenses were part of a single criminal scheme and should be treated as a single conviction. Looking to case law in the Fourth, Sixth and Tenth Circuits, the Ninth Circuit agreed that prior convictions should only be considered for purposes of enhancement under §841(b)(1)(A) if they constitute separate criminal episodes. See, e.g., U.S. v. Blackwood, 913 F.2d 139, 145 (4th Cir. 1990); U.S. v. Hughes, 924 F.2d 1354, 1360-61 (6th Cir. 1991); and U.S. v. Pace, 981 F.2d 1123, 1131-32 (10th Cir. 1992). However even though both of defendant’s prior convictions may have resulted from a continuous period of drug usage, they constituted separate criminal episodes. The “related cases” concept in §4A1.2 of the guidelines is not applicable in construing this federal statute. U.S. v. Liquori, 5 F.3d 439 (9th Cir. 1993).
9th Circuit says mandatory minimum sentence depends on reasonable foreseeability. (245) Two defendants pled guilty to conspiracy to distribute cocaine and the district court imposed the statutory mandatory minimum sentences of 20 years, finding the offenses involved more than 25 kilos of cocaine. Defendants had arranged two single kilo sales and there had been discussions with a third defendant about supplying 25 kilos of cocaine. The 9th Circuit reversed the sentence of one defendant because the facts did not support his knowledge of the 25 kilos or that such quantity was reasonably foreseeable to him. The 9th Circuit rejected the government’s argument that sentencing under the statutory mandatory minimum should differ from the guideline calculation. The government must show a particular defendant had some connection or reasonable foreseeability of the larger amount. U.S. v. Becerra, 992 F.2d 960 (9th Cir. 1993).
9th Circuit extracts pure methamphetamine from mixture to determine mandatory minimum. (245) 21 U.S.C. section 841(b)(1)(A)(viii) requires a 10-year mandatory minimum sentence for offenses involving over 100 grams of pure methamphetamine. In U.S. v. Alfeche, 942 F.2d 697 (9th Cir. 1991), the Ninth Circuit held that section 841 allows “pure” methamphetamine to be extracted from a mixture for purposes of sentencing. Consequently, it was proper to impose the mandatory minimum sentence where the defendant imported 906.2 grams of a substance which contained 779.9 grams of pure methamphetamine. U.S. v. Asuncion, 973 F.2d 769 (9th Cir. 1992).
9th Circuit reverses departure below the mandatory minimum. (245) The 9th Circuit said that in the absence of a government motion for a downward departure, the district court is “presumptively without power to circumvent the mandatory minimum.” The court followed the Eighth and Tenth circuits in holding that absent improper motivation or a constitutional violation the federal courts will not attempt to supervise the prosecutor’s decision to treat one defendant differently than another. U.S. v. Vilchez, 967 F.2d 1351 (9th Cir. 1992).
9th Circuit applies mandatory minimum sentences for substantive drug offenses to drug conspiracies. (245) The Anti-Drug Abuse Act of 1988 amended 21 U.S.C. section 846 to state that any person who conspires to commit any offense defined in this subchapter “shall be subject to the same penalties” as those prescribed for the offense which was the object of the conspiracy. In light of Congress’s “clear intent” in amending section 846, the 9th Circuit followed the 6th Circuit in holding that the mandatory minimum penalties established under 841 apply with equal force to related offenses under section 846. Thus drug conspiracy convictions carry the same mandatory minimum sentence as the underlying substantive offense. U.S. v. Dabdoub-Kanez, 961 F.2d 836 (9th Cir. 1992).
9th Circuit rejects challenges to mandatory sentence of life without possibility of parole. (245) Defendant, who was only 22 years old, argued that the mandatory life sentence without possibility of parole required by 21 U.S.C. section 841(b)(1)(A) was intended only to apply to “drug kingpins.” He also argued that section 841 was in conflict with 18 U.S.C. section 3661 which provides that no limitation shall be placed on the information a court receives in imposing sentence. The 9th Circuit rejected each of these arguments, and also rejected arguments that section 841 was unconstitutionally vague, that it violated the 6th Amendment right to counsel, and violated equal protection because prosecutors allow some defendants but not others to cooperate and avoid the mandatory sentence. U.S. v. Van Winrow, 951 F.2d 1069 (9th Cir. 1991).
9th Circuit holds that lack of statutory minimum sentence does not permit guideline to be ignored. (245) In U.S. v. Sharp, 883 F.2d 829 (9th Cir. 1989), the 9th Circuit held that a statutory mandatory minimum sentence must be imposed even when the guideline sentence would be lower. Based on Sharp, the defendant in this case argued that since the embezzlement statute does not specify a minimum sentence, the minimum term of “no imprisonment” must control over the guideline sentence. Thus, he argued that it was proper for the district court to impose a sentence of probation even though the guidelines called for 15 to 21 months. The 9th Circuit rejected the argument, stating that Congress could not have intended for the silence of the statute to invalidate guideline sentences. U.S. v. Berlier, 948 F.2d 1093 (9th Cir. 1991).
9th Circuit holds that mixture containing 100 grams of methamphetamine triggered 10-year minimum sentence. (245) 21 U.S.C. § 841(a)(1)(B)(viii) requires a 10-year minimum sentence for offenses involving 100 grams of methamphetamine or [one kilogram] of a mixture containing methamphetamine. At the time of the offense, the statute said “100 grams,” not “one kilogram,” but the court agreed that this was a typographical error that Congress has since corrected. Although the total weight of the mixture here did not exceed one kilogram, the district court found that more than 100 grams of “pure” methamphetamine were included in the mixture, and therefore imposed the 10-year mandatory minimum sentence. On appeal, the 9th Circuit affirmed, holding that this interprettation “is consistent with the statute and avoids absurd results.” U.S. v. Alfeche, 942 F.2d 697 (9th Cir. 1991).
9th Circuit holds that guidelines did not repeal mandatory minimum sentences. (245) Defendant argued that he was entitled to be sentenced under the guidelines, which impose a lesser sentence than the mandatory minimum 10 year sentence for repeat narcotics offenders under 21 U.S.C. § 841(b)(1)(B). The 9th Circuit rejected the argument, noting that guideline § 5G1.1(b) expressly provides that where the statutorily required minimum sentence is greater than the maximum of the applicable guideline range, “the statutorily required minimum sentence shall be the guideline sentence.” The court rejected the defendant’s argument that 18 U.S.C. § 3553(b) implicitly repealed the mandatory minimum sentence. The court noted that “repeals by implication are disfavored,” and followed the holding of other circuits that the mandatory minimum sentence does not constitute a departure from the guidelines. U.S. v. Williams, 939 F.2d 721 (9th Cir. 1991).
9th Circuit upholds aggregating amounts of methamphetamine distributed before effective date of mandatory minimum statute. (245) The minimum ten year sentence required under 21 U.S.C. § 841(b)(1) became effective November 18, 1988. The conspiracy for which the defendant received the mandatory minimum sentence began before that date, and he argued that the ex post facto clause prevented aggregating amounts of methamphetamine distributed prior to November 18, 1988. The 9th Circuit rejected the argument, noting that conspiracy is a continuing offense for which the sentencing guidelines contemplate the aggregation of all amounts of contraband involved in the conspiracy. See § 2D1.4, commentary note 1. U.S. v. Inafuku, 938 F.2d 972 (9th Cir. 1991).
9th Circuit declines to consider error in calculating guidelines where sentence was governed by mandatory minimum. (245) Defendant argued that the district court erred in computing his sentence under the guidelines. However, the length of defendant’s sentence was not governed by the guidelines, because § 5G1.1(b) provides that “where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” Since defendant’s sentence of five years was the mandatory minimum sentence under 21 U.S.C. § 841(b), “any error the district court may have committed in calculating defendant’s sentence under the guidelines did not harm defendant.” U.S. v. Beltran-Felix, 934 F.2d. 1075 (9th Cir. 1991).
9th Circuit holds quantity of drugs is not an element of the offense but merely a sentencing factor. (245) The 9th Circuit held that 21 U.S.C. § 841(a) “does not specify drug quantity as an element of the substantive offense of possession with intent to distribute; quantity is instead relevant to the penalty provisions of § 841(b), and is a matter for the district court at sentencing.” Since the record did not reflect that the district judge made any determination of the quantity of marijuana possessed, the case was remanded for resentencing. U.S. v. Sotelo-Rivera, 931 F.2d 1317 (9th Cir. 1991).
9th Circuit holds quantity of drugs is not an element of the offense but is merely a sentencing factor. (245) The Ninth Circuit held that 21 U.S.C. section 841(a) “does not specify drug quantity as an element of the substantive offense of possession with intent to distribute; quantity is instead relevant to the penalty provisions of section 841(b), and is a matter for the district court at sentencing.” Since the record did not reflect that the district judge made any determination of the quantity of marijuana possessed, the case was remanded for resentencing. U.S. v. Sotelo-Rivera, 931 F.2d 1317 (9th Cir. 1991), vacating 906 F.2d 1324 (9th Cir. 1990).
9th Circuit upholds constitutionality of sentencing scheme based on quantity rather than purity. (245) Defendants argued that the mandatory minimum sentence imposed on them by 21 U.S.C. § 841 denied due process and equal protection by focusing solely on quantity and disregarding purity. Relying on their prior opinion in U.S. v. Savinovich, 845 F.2d 834 (9th Cir. 1988), the 9th Circuit reiterated that the mandatory penalty imposed by § 841(b) does not deny equal protection. This is true even though a street dealer possessing a drug which has been “cut” several times may serve a minimum mandatory sentence greater than a manufacturer possessing a smaller but purer quantity of drugs. The court found that the fact that the heroin was diluted below street quality did not provide a basis for distinguishing Savinovich. U.S. v. Chang Yu-Chong, 920 F.2d 594 (9th Cir. 1990).
9th Circuit upholds mandatory enhancement for previous felony drug conviction. (245) Defendant pleaded guilty to possessing 5 kilograms of cocaine with intent to distribute. The district court sentenced him to the mandatory 10 years plus an additional 10 years because he had been convicted in 1983 of felony drug offense involving marijuana. He argued that 21 U.S.C. § 841(b)(1)(A)’s mandatory enhancement for previous drug conviction deprived him of his due process right to receive an individualized sentence. The 9th Circuit rejected the argument, ruling that sentencing under the statute is individualized according to quantity and variety of the narcotic possessed. Moreover, the court has discretion to sentence beyond the mandatory minimum and to consider such factors as a defendant’s culpability and circumstances. The court found that the district court had determined that the most appropriate sentence was the 20-year minimum. U.S. v. Brownlie, 915 F.2d 527 (9th Cir. 1990).
9th Circuit upholds constitutionality of 5-year mandatory sentence for use of gun in drug trafficking. (245) Defendant argued that the 5-year mandatory sentence provision of 18 U.S.C. § 924(c)(1) violated the Fifth Amendment due process clause and the Eighth Amendment prohibition against cruel and unusual punishment. He also argued that the section was unconstitutional because it precludes the exercise of discretion by the district court. The 9th Circuit rejected each of these arguments. The court held that the defendants “do not have a constitutional right to individualized sentences,” and that many other courts had upheld the 5-year mandatory minimum sentence against Eighth Amendment challenge. U.S. v. Wilkins, 911 F.2d 337 (9th Cir. 1990).
9th Circuit holds crime involving 5 kilos of cocaine requires mandatory minimum 10 year sentence. (245) 21 U.S.C. § 841(a)(1) provides that a person convicted of a crime involving 5 kilos or more of cocaine who has no prior convictions “shall be sentenced to a term of imprisonment which may not be less than ten years or more than life.” Reaffirming its decision in U.S. v. Hoyt, 879 F.2d 505, 511-12, modified 888 F.2d 1257 (9th Cir. 1989), the Ninth Circuit held that the minimum sentences of § 841(a)(1) are indeed mandatory. The court also reaffirmed that § 841(b)(1)(A) does not violate the 8th Amendment prohibition against cruel and unusual punishment. U.S. v. Contreras, 895 F.2d 1241 (9th Cir. 1990).
9th Circuit finds no standing to challenge no-parole provisions of § 841 where defendants were not minor figures. (245) Defendants appealed their conviction and sentences under 21 U.S.C. 841 (b)(1)(B), challenging the constitutionality of the no-parole provisions. The Ninth Circuit had previously declined to consider similar claims where the defendants were not minor figures in the conspiracy involved. The 9th Circuit concluded that neither defendant here had a peripheral role in the conspiracy to distribute cocaine, and as a result refused to address their constitutional challenge. U.S. v. Johnson, 886 F.2d 1120 (9th Cir. 1989).
9th Circuit holds it constitutional to make 50 grams of cocaine base equivalent to five kilograms of cocaine. (245) Defendant argued that 21 U.S.C. § 841 (b) (1)(A)(iii) is unconstitutional because it treats 50 grams of base cocaine as the equivalent of five kilograms of cocaine. In upholding defendant’s ten year sentence, The 9th Circuit noted that Congress’ “market-oriented approach” to sentencing under this statute has been held constitutional in two other 9th Circuit cases. U.S. v. Malone, 886 F.2d 1162 (9th Cir. 1989).
9th Circuit holds that sole defendant had no standing to challenge statute’s effect on minor members of conspiracy. (245) Defendant, who was not charged with conspiracy, argued that 21 U.S.C. § 841 (b)(1)(A) (iii) was unconstitutional as applied to him because it is irrational to impose a mandatory 10 year sentence on a first time offender whose participation in the conspiracy was minor. The 9th Circuit rejected the argument, stating that because no conspiracy was charged, defendant had “no standing to challenge the statute’s effect on minor members of a conspiracy.” U.S. v. Malone, 886 F.2d 1162 (9th Cir. 1989).
9th Circuit holds mitigating circumstances do not allow a court to sentence offenders to a term below statutory minimum. (245) Relying on 3rd and 8th Circuit opinions, the 9th Circuit held that where a statute sets a sentence that is different than those set by the guidelines, the statute controls. The district court failed to sentence the defendant under either the federal or statutory guidelines, deeming both violative of due process. The 9th Circuit held that a court may reduce a sentence below the statutory minimum only where, upon Government motion, the court finds that the defendant assisted in another criminal case. 18 U.S.C. § 3553(e). Lacking such circumstances, the district court’s sentence violated the mandate of the sentencing guidelines, as well as the statutory prohibition on suspension of sentence or probation for drug offenders. The case was vacated and remanded for imposition of the mandatory sentence. U.S. v. Sharp, 883 F.2d 829 (9th Cir. 1989).
9th Circuit holds mandatory minimum sentence applies even to aiders and abetters. (245) In U.S. v. Ambrose, 740 F.2d 505, 507-10 (7th Cir. 1984), the Seventh Circuit held that a defendant convicted of aiding and abetting a violation of 21 U.S.C. § 848 (the “kingpin” statute) may not always be subject to the mandatory minimum penalties provided by that statute. Defendant was convicted of 21 U.S.C. 841(a)(1), and argued that it, too, was aimed at “kingpins,” rather than “lieutenants and foot soldiers,” and therefore an aider and abetter of an 841 offense should likewise not be subject to the mandatory minimum sentence. The 9th Circuit rejected the argument, noting that the legislative history of § 841 indicates that Congress intended the mandatory minimums to apply even if the accused had the “lowest possible role” in the narcotics conspiracy. U.S. v. Power, 881 F.2d 733 (9th Cir. 1989).
9th Circuit finds no special parole terms for narcotics offenses under 21 U.S.C. 841(b)(1)(A) between 1984 and 1987. (245) Prior to 1984, 21 U.S.C. § 841(b)(1) (A) required a minimum special parole term of at least 3 years. On October 12, 1984, the Comprehensive Crime Control Act amended that section, but contained no provision authorizing special parole terms. A later provision, 18 U.S.C. § 3558 provided for “supervised release,” but that provision did not go into effect until November 1, 1987. Thus, the 9th Circuit held that when defendant was sentenced on May 22, 1987 for distribution of cocaine, there was no authority for imposing a special parole term or a term of supervised release on him. His 25-year special parole term was vacated. U.S. v. Torres, 880 F.2d 113 (9th Cir. 1989).
9th Circuit holds supervised release provision for drug offenses took effect October 27, 1986. (245) Correcting its earlier opinion, The 9th Circuit held that — for drug offenses under 21 U.S.C. § 841(b)(1)(A) — the “supervised release” provisions of the 1986 amendments to the Comprehensive Crime Control Act took effect on October 27, 1986. This is so even though other amendments did not take effect until November 1, 1987. Thus, since the defendant’s sentence was imposed after October 27, 1986, the district court properly imposed a term of supervised release. However, as stated in the earlier opinion, no statutory authorization existed after October 12, 1984, for a special parole term for a drug related offense involving more than 5 kilograms of cocaine. U.S. v. Torres, 880 F.2d 113 (9th Cir. 1989).
9th Circuit holds mandatory minimum 10-year sentence for first time offender does not violate Eighth Amendment. (245) Defendant was sentenced to the mandatory minimum sentence of 10 years for selling 5 kilograms of cocaine under 21 U.S.C. 841(b)(1)(A). The 9th Circuit found no cruel or unusual punishment even though defendant was a first offender. U.S. v. Hoyt, 879 F.2d 505 (9th Cir. 1989).
9th Circuit holds that conviction involving more than 5 kilograms of cocaine requires mandatory minimum 10 year sentence. (245) 21 U.S.C. 841(b)(1) contains an ambiguity suggesting that the court may impose a fine as an alternative to a mandatory prison sentence. However, the 9th Circuit refused to apply the “rule of lenity,” stating that other language in the statute makes it clear that a mandatory minimum prison sentence was intended for all offenders. This is also the “unambiguous congressional intent” expressed in the legislative history. U.S. v. Hoyt, 879 F.2d 505 (9th Cir. 1989).
9th Circuit rules that punishment based on the quantity rather than the purity of cocaine is constitutional. (245) Defendant attacked the constitutionality of the mandatory sentencing scheme under 21 U.S.C 841(b)(1) (A) on the ground that the statute sets different classifications for punishment based on the quantity rather than the purity or concentration of the drugs sold. The 9th Circuit rejected the argument, noting that three recent Ninth Circuit cases have rejected similar due process and equal protection arguments with regard to other subsections of § 841. U.S. v. Hoyt, 879 F.2d 505 (9th Cir. 1989).
9th Circuit rules that instructing jury that it is not improper for undercover agents to infiltrate drug rings was not plain error. (245) At trial the defendant characterized the undercover informant’s conduct as improper, in an effort to establish an entrapment defense. The trial court found insufficient evidence to warrant an entrapment instruction, but did instruct the jury that it was not improper for the government to use undercover agents to infiltrate drug rings. The 9th Circuit noted that the defendant failed to object, and ruled that in light of the defendant’s persistent insinuation that the agent acted improperly, it was not plain error to give the instruction. U.S. v. Hoyt, 879 F.2d 505 (9th Cir. 1989).
9th Circuit holds enhancing sentence based on prior conviction committed before enhancement statute was enacted does not violate ex post facto clause. (245) Defendant argued that his sentence under 21 U.S.C. § 841 for distribution of cocaine should not have been enhanced based upon his 1981 prior drug-related conviction, because the enhancement statute was enacted in 1986, and applying it to his 1981 offense would violate the ex post facto clause. The 9th Circuit rejected the argument, holding that inasmuch as the enhancement statute was on the books at the time he committed the second offense, its application to him was not barred by the ex post facto clause. U.S. v. Ahumada-Avalos, 875 F.2d 681 (9th Cir. 1989).
9th Circuit holds mandatory life prisoner is not in suspect class for equal protection purposes. (245) The petitioner argued that as a mandatory life term prisoner he was denied equal protection because the statute required that he restart his mandatory minimum time toward parole eligibility after an escape. The 9th Circuit rejected the argument, finding that mandatory life prisoners are not a suspect class, nor is parole eligibility a fundamental right requiring a higher level of scrutiny. Applying the rational basis test, the court found that “Washington’s treatment of mandatory life prisoners shows a fair relationship to legitimate state interests.” Mayner v. Callahan, 873 F.2d 1300 (9th Cir. 1989).
9th Circuit clarifies the various versions of 21 U.S.C. § 841 which were in effect between 1984 and 1987. (245) In a per curiam opinion, the 9th Circuit attempts to clarify Congress’ various versions of the drug statute, 21 U.S.C. § 841. At the time the defendant was sentenced, there were two penalty provisions in effect under which he might have been sentenced, depending on how his guilty plea was interpreted. His sentence was permissible under only one. But the terms of the plea agreement were inconsistent with both provisions. His conduct, sentence and plea agreement were consistent with a provision which was no longer in effect. The case was remanded for clarification of the statutory basis for the sentence. U.S. v. Brickell, 872 F.2d 307 (9th Cir. 1989).
9th Circuit holds mandatory minimum 5-year sentence was not unconstitutional. (245) The defendant argued that his 5-year sentence for possession with intent to distribute 500 grams of cocaine was disproportionate and thus violated the Eighth Amendment. He also argued that mandatory sentencing violated due process by restricting judicial discretion and was so arbitrary that it violated due process and equal protection. The 9th Circuit rejected each of these arguments in turn. U.S. v. Kidder, 869 F.2d 1328 (9th Cir. 1989).
9th Circuit finds refusal to let defendant “plead around” the mandatory minimum sentence did not deny equal protection. (245) Defendant argued that the prosecution denied his equal protection by refusing to let him “plead around” the mandatory 5-year minimum sentence in 21 U.S.C. 841 by pleading guilty to conspiracy instead of possession. He asserted that several other defendants in the Western District of Washington were allowed to do this, and that this “arbitrary” enforcement violated the equal protection component of the due process clause. The 9th Circuit rejected the argument, noting that the defendant failed to allege that he was selected for prosecution on the basis of an impermissible ground. U.S. v. Kidder, 869 F.2d 1328 (9th Cir. 1989).
9th Circuit holds mandatory minimum 5-year sentence was not unconstitutional. (245) The defendant argued that his 5-year sentence for possession with intent to distribute 500 grams of cocaine was disproportionate and thus violated the Eighth Amendment. He also argued that mandatory sentencing violated due process by restricting judicial discretion and was so arbitrary that it violated due process and equal protection. The 9th Circuit rejected each of these arguments in turn. U.S. v. Kidder, 869 F.2d 1328 (9th Cir. 1989).
9th Circuit rules that in determining whether a prior conviction is a “violent felony,” court may look only at elements of crime. (245) 18 U.S.C. § 924(e)(1) requires a 15-year mandatory minimum sentence for a felon in possession of a firearm who has three prior convictions for a “violent felony or serious drug offense.” Examining the legislative history and applying the rule of lenity, the 9th Circuit held that in determining the priors, the court may look only to the statutes establishing the crimes for which the defendant was convicted. It may not examine the particular facts underlying the prior convictions. Here, the California witness intimidation statute, California Penal Code § 136.1(c)(1), can be committed without force or violence against a person, and therefore defendant’s conviction under it was not a “violent felony.” It was improper for the district court to conduct a hearing on the particular facts and determine otherwise. U.S. v. Sherbondy, 865 F.2d 996 (9th Cir. 1988).
9th Circuit holds 5-year mandatory minimum sentence for possession with intent to distribute cocaine is not unconstitutional. (245) Agreeing with other circuits, the 9th Circuit upholds the constitutionality of mandatory minimum sentences for drug violations against claims that such mandatory sentences are arbitrary and unreasonable, violate equal protection, and constitute cruel and unusual punishment. Here, The 9th Circuit chooses to “adhere” to these rulings. U.S. v. Ramos, 861 F.2d 228 (9th Cir. 1988).
9th Circuit rules no probation or suspended sentence for defendants convicted of importing cocaine. (245) Defendant was convicted of importing almost two kilograms of cocaine, in violation of 21 U.S.C. § 960(b)(2). That section provides that “the court shall not place on probation or suspend the sentence of any person sentenced under this paragraph.” The 9th Circuit held that this language was sufficiently explicit to control over 18 U.S.C. § 3651 which permits a court to suspend sentence or place on probation “unless [it is] explicitly made inapplicable.” U.S. v. Cook, 859 F.2d 777 (9th Cir. 1988).
9th Circuit finds mandatory minimum 5-year sentence for importing cocaine was not cruel and unusual. (245) Defendant walked across the border from Mexico carrying almost two kilograms of 87% pure cocaine. She was convicted of importing cocaine and sentenced to the mandatory minimum five years in custody without parole, pursuant to 21 U.S.C. § 960(b)(2). Despite the defendant’s argument that she was only a “mule” and a first-time offender, the 9th Circuit found no violation of the Eighth Amendment. “Those who import large quantities of cocaine are a threat to the welfare of this society.” U.S. v. Cook, 859 F.2d 777 (9th Cir. 1988).
9th Circuit rules “no-parole” provision of 21 U.S.C. § 841(b)(1)(B) does not constitute cruel and unusual punishment when applied to major offender. (245) Defendant had no standing to claim that the “no-parole” provisions of 21 U.S.C. § 841(b)(1)(B) would constitute cruel and unusual punishment if applied to minor offenders, because he was not a minor offender. As applied to himself, the 9th Circuit noted that there is no constitutional right to be released on parole before the expiration of a valid sentence. Thus congress’s refusal to authorize parole for some offenses is not per se unconstitutional. “Moreover, the proportionality requirement of the Eighth Amendment does not require that a defendant’s sentence be harmonized with sentences imposed by other courts on other defendants.” Generally a sentence will be upheld if it “does not exceed statutory limits.” U.S. v. Zavala-Serra, 853 F.2d 1512 (9th Cir. 1988).
9th Circuit rules defendant had no standing to challenge 5-year mandatory minimum sentence because he was sentenced to 10 years. (245) Defendant argued that the 5-year mandatory minimum sentence required by 21 U.S.C. § 841(b)(1)(B) was unconstitutional. However at oral argument, counsel conceded that the defendant, who was sentenced to 10 years in prison, was not affected by the minimum mandatory 5-year sentence provision. Thus, the 9th Circuit held that he “lacks standing to challenge the constitutionality of that aspect of § 841(b)(1)(B).” U.S. v. Zavala-Serra, 853 F.2d 1512 (9th Cir. 1988).
9th Circuit rules increased penalties for violations of 21 U.S.C. 841(b) became effective on date of enactment, October 27, 1986. (245) Having just been increased in 1984, the penalty provisions of 21 U.S.C. 841(b) were amended again as part of the Narcotics Penalties and Enforcement Act of 1986, to provide that in the case of violations involving 500 or more grams of a mixture containing cocaine, “such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years.” The defendant argued that this section was tied to the Sentencing Reform Act of 1984 and therefore did not become effective until November 1, 1987. However, the 9th Circuit rejected this argument, holding that these increased penalties became effective immediately on October 27, 1986. U.S. v. Meyers, 847 F.2d 1408 (9th Cir. 1988).
9th Circuit rules mandatory minimum five-year sentence for possession of more than 500 grams of cocaine is constitutional. (245) Defendant argued that the five-year mandatory minimum sentence of 21 U.S.C. § 841(b)(1)(B)(ii) violated equal protection in that it based the severity of the sentence on the quantity, rather than the purity, of the drug possessed. She also argued that it constituted cruel and unusual punishment. The 9th Circuit rejected both arguments, holding that Congress reasonably chose a “market-oriented” approach, and that a “grave offense” was proven in this case: possession of 8,000 dosage units of cocaine worth $100,000, with intent to distribute. U.S. v. Savinovich, 845 F.2d 834 (9th Cir. 1988).
10th Circuit says prior drug conviction increased the maximum, but not the minimum sentence. (245) Defendant was convicted of possession with intent to distribute, in violation of 21 U.S.C. § 841(b)(1)(C). He agued that the district court erred in finding that dedendant was subject to a 20-year statutory minimum, and the Tenth Circuit agreed. While the government did file an information under 21 U.S.C. § 851(a) to establish defendant’s prior felony drug conviction, that only increased the applicable statutory maximum sentence, and there was no statutory minimum. The error was not harmless because the district court indicated it would have imposed a much lower sentence but for the fact that it believed it was bound by the statutory minimum sentence. U.S. v. Hutchinson, 573 F.3d 1011 (10th Cir. 2009).
10th Circuit holds that substance with 50 or more grams of meth triggers 10-year mandatory minimum. (245) The government seized from defendant’s vehicle a package containing material weighing 439.5 grams that was “85.1 percent pure methamphetamine.” Thus, there were 374 grams of actual or pure meth in the package. There is a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(viii) for possession of “50 grams or more of methamphetamine … or 500 grams or more of a mixture of substance containing a detectable amount of methamphetamine.” Defendant argued that the 50-gram provision applies only when the meth is pure. The Tenth Circuit rejected this argument, noting that it was based on a misconception that “pure” methamphetamine is different from methamphetamine in a mixture. Circuit courts have repeatedly rejected the argument that “50 grams or more of methamphetamine” applies only when the material possessed by the defendant is pure methamphetamine (as opposed to meth found in a mixture or substance). U.S. v. Villegas, 554 F.3d 894 (10th Cir. 2009).
10th Circuit rejects Apprendi challenge. (245) Defendant pled guilty to charges arising from his attempt to sell three pounds of methamphetamine to an undercover officer. He argued for the first time on appeal that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Tenth Circuit found no Apprendi error. First, the indictment here did specify a drug quantity – it specified that his offense involved 50 grams of methamphetamine. The maximum penalty for this offense is life imprisonment. Defendant’s ten-year sentence was well under that statutory maximum, and less than the 20-year maximum provided in § 841(b)(1)(C) for offenses with no specified quantity of meth. In order for defendant to prevail, the court would have to extend the Apprendi rule to mandatory minimum sentences, a position which only one circuit has adopted. See U.S. v. Strayhorn, 250 F.3d 462 (6th Cir. 2001). Finally, even if the court were to follow Strayhorn, that alone would not entitle defendant to relief. The indictment’s phrase “50 grams of more of methamphetamine” should be construed as meaning what it says, rather than meaning “50 grams or more of a mixture of substance containing a detectable amount of methamphetamine.” U.S. v. Lujan, 268 F.3d 965 (10th Cir. 2001).
10th Circuit holds that personal use drugs cannot be considered under statute. (245) Counts supplied methamphetamine to defendant, which she either sold or consumed herself. The Tenth Circuit found that where a member of a drug distribution conspiracy handles drugs both for personal use and for distribution in the course of the conspiracy, the entire quantity of drugs handled is relevant conduct under the guidelines. See, e.g. U.S. v. Fregoso, 60 F.3d 1314 (8th Cir. 1995). However, under U.S. v. Santos, 195 F.3d 549 (10th Cir. 1999), “the operative drug quantities in the mandatory sentencing provisions of § 841(b) … are exclusively a function of the quantities involved in the offense of conviction.” Drug quantities collateral to the underlying § 841(a) violation are not relevant to determinations of the statutory sentencing range pursuant to § 841(b). In the present case, the object of defendant’s meth conspiracy was distribution. Thus, drugs handled by defendant in transactions that lacked the common objective of distribution could not be included in determining the applicable sentencing range under 21 U.S.C. § 841(b). Absent evidence defendant agreed to or intended to distribute the drugs she personally consumed, these quantities must be excluded when determining the statutory sentencing range. Although a defendant bears the burden or proving her intent to consume, “the ultimate burden of proof on the quantity of drugs involved in the offense remains with the government at all times.” U.S. v. Asch, 207 F.3d 1238 (10th Cir. 2000).
10th Circuit holds that use of states’ treatment of juvenile offenders did not violate equal protection. (245) Defendant argued that the district court violated his right to equal protection when it used two Oklahoma drug convictions as predicates for an enhancement under 21 U.S.C. § 841(b). He noted that some states do not allow the unsealing of juvenile records, and states differ on the ages and crimes for which persons under 18 can be prosecuted as adults. The Tenth Circuit found no equal protection violation in the use of states’ differing laws governing juvenile convictions. Congress intentionally left certain aspects of the § 841 enhancements to be triggered by the laws of the states. The language of 21 U.S.C. § 802(13) clearly ties the definition of the term “felony” to the state’s classification of the crime as a felony. Although states have different criteria for determining when a juvenile can be charged as an adult, this did not render the sentencing scheme irrational any more than relying on the states’ various definitions of felonies. “It is not irrational for Congress to defer to state law with regard to the characteristics of a prior offense, and doing so is no more intentionally arbitrary than our system of federalism itself.” The fact that similarly situated juveniles might be treated differently in different states was irrelevant to defendant because he was convicted as an adult. U.S. v. McKissick, 204 F.3d 1282 (10th Cir. 2000).
10th Circuit finds insufficient proof that prior convictions were defendant’s. (245) Defendant argued that the government failed to prove beyond a reasonable doubt, as required by 21 U.S.C. § 851, that he was previously convicted of two drug-related felonies. The first offense was in the name of “Eric Daniels,” which defendant’s PSR listed as one of his aliases. California authorities also had “Eric Daniels” listed as an a/k/a for defendant. Defendant and Daniels were both born on March 12, but in different years. Finally, defendant lived on West 107th Street, whereas as Daniels lived on East 107th Street. The Tenth Circuit found that the government failed to prove that defendant was the person convicted of this crime. Aliases can be “faddish,” with multiple individuals using the same name. Gang members often have similar aliases. While the two pieces of vital information were similar, notable discrepancies existed. Finally, the government introduced no physical evidence, such as fingerprints or a photo, that showed that the two men were the same. For similar reasons, there was insufficient evidence that defendant was the “Derrick Taylors” who pled guilty to drug charges in California. Although the government introduced a faxed photo of Taylors, the government’s own witness could not identify defendant as the person pictured in the photo. U.S. v. Green, 175 F.3d 822 (10th Cir. 1999).
10th Circuit says § 851 notice filed day before trial was adequate. (245) The day before trial, the government filed a notice of enhancement under 21 U.S.C. § 851(a)(1), notifying defendant that he might be subjected to increased punishment because of his prior conviction for Attempted Possession of a Controlled Substance, a third-degree felony. The Tenth Circuit held that the notice was adequate. The government filed the information the day before trial, which was timely under the statute. “Before trial” under § 851 means any time before jury selection. Nothing else about the government’s notice was deficient or misleading. Although defendant claimed that his prior conviction was a misdemeanor under Utah law, the record clearly showed that he pled guilty to a third-degree felony. U.S. v. Lugo, 170 F.3d 996 (10th Cir. 1999).
10th Circuit refuses to sentence money launderer to drug mandatory minimum. (245) Defendant was convicted of a drug conspiracy and money laundering counts. The district court determined that defendant was involved in laundering $831,514 in drug profits. However, it refused to apply the mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(A) because it found his conduct did not establish a quantity of narcotics reasonably foreseeable to him. The Tenth Circuit upheld the refusal to sentence defendant to the mandatory minimum because there was no evidence that he was directly involved in drug distribution or could foresee any particular quantity. The evidence established only that defendant was involved in the drug ring as a money launderer. The district court did not err in refusing to find that he was directly involved in the distribution of five kilograms of cocaine. Although the district court might have held him accountable for the cocaine that generated the drug profits he laundered, it was not required to do so. The record supported the court’s finding that no quantity of drugs was reasonably foreseeable to defendant. He was simply a money launderer. U.S. v. Morales, 108 F.3d 1213 (10th Cir. 1997).
10th Circuit, en banc, holds amendment excluding liquid by‑products does not apply to mandatory minimum. (245) Effective November 1, 1993, the Sentencing Commission amended note 1 to § 2D1.1 to exclude unusable liquid byproducts in computing the weight of controlled substances. Here, defendant possessed 32 grams of a liquid mixture containing 28 grams of pure methamphetamine. The district court sentenced him based on the entire 32 kilograms. Defendant filed a § 3582(c)(2) motion for a sentence reduction. The government conceded that the amended commentary applied for guideline purposes, but contended that defendant was still subject to a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(viii). The Tenth Circuit, en banc, held that the guideline amendment did not apply for mandatory minimum purposes. In Neal v. U.S., 516 U.S. 284 (1996), the Supreme Court reaffirmed that Chapman v. U.S. 500 U.S. 453 (1991) sets forth the governing definition of “mixture or substance” under § 841. Although Chapman interpreted “mixture or substance” in § 841(b)(1)(B)(v), identical terms in the same statute have the same meaning. Chief Judge Seymour, and Judges Porfilio and Henry dissented. U.S. v. Richards, 87 F.3d 1152 (10th Cir. 1996) (en banc).
10th Circuit holds that one kilogram/one plant ratio does not just apply to growers. (245) Defendant pled guilty to possession with intent to distribute marijuana. The district court attributed 1000 marijuana plants to defendant at sentencing, which it converted to 1000 kilograms of marijuana. This triggered a mandatory minimum sentence of ten years under 21 U.S.C. § 841(b)(1)(A)(vii). Defendant argued that the one plant/one kilogram equivalency only applies to growers of marijuana, and he discovered the plants growing wild. The Tenth Circuit held that the one kilogram/one plant ratio did not just apply to marijuana growers, even though an important reason Congress enacted the equivalency was to punish growers more severely than others. The statute only requires the government to prove that either 1000 marijuana plants or 1000 kilograms of marijuana are attributable to the defendant. The court refused to rewrite the statute. Senior Judge Barrett dissented. U.S. v. Silvers, 84 F.3d 1317 (10th Cir. 1996).
10th Circuit says government need not seize live plants to use one plant/one kilogram equivalency. (245) Defendant argued that to use the one plant/one kilogram equivalency, the government must prove it actually seized “plants” from the defendant’s possession, and that plants are not “plants” for sentencing purposes unless they are live. The Tenth Circuit held that the marijuana need not be in plant form at the time of the seizure. To use the one plant/one kilogram equivalency, the government is only required to prove that defendant possessed marijuana plants with intent to distribute at some point in time. U.S. v. Silvers, 84 F.3d 1317 (10th Cir. 1996).
10th Circuit finds government abandoned effort to enhance sentence by failing to object to PSR. (245) The government filed a notice under 21 U.S.C. § 851 of its intent to seek an enhanced mandatory minimum penalty based on a previous drug conviction. The enhancement would have raised the mandatory minimum sentence to 20 years’ imprisonment, ten years’ supervised release, and an $8 million fine. However, defendant’s PSR stated that she was subject to a mandatory minimum sentence of ten years’ imprisonment, five years’ supervised release, and a discretionary denial of federal benefits for five years. The government did not object to the PSR either before or during the sentencing hearing. The Tenth Circuit held that the government’s failure to object to the PSR constituted an abandonment of its effort to obtain an enhanced sentence. When the government failed to object, defendant was entitled to believe that there was no need to challenge these penalties. U.S. v. Ivy, 83 F.3d 1266 (10th Cir. 1996).
10th Circuit finds court’s failure to comply with § 851’s inquiry requirement was harmless error. (245) The government filed an information under 21 U.S.C. § 851(b) notifying defendant and the court that it sought an enhanced sentence based on a prior conviction. Section 851(b) requires the court to inquire whether defendant affirms or denies the priors, and to inform him that any challenge which is not made before sentencing may not be raised later. The Tenth Circuit held that the district court’s failure to comply with § 851’s inquiry requirement was harmless error. Defendant did not argue that he would have raised a challenge to his prior conviction had he been given the proper warning, nor did he advise the appellate court how such a challenge might be successful. In addition, defense counsel conceded during a pretrial hearing that defendant had been convicted of the prior offense. U.S. v. Lopez‑Gutierrez, 83 F.3d 1235 (10th Cir. 1996).
10th Circuit remands where 20‑year sentence exceeded statutory maximum for marijuana. (245) Defendant argued that his 20-year marijuana sentence exceeded the statutory maximum. The Tenth Circuit agreed, since defendant was charged with and convicted of possessing less than 50 kilograms of marijuana with intent to distribute. Under 21 U.S.C. § 841(b)(1)(C), a court may sentence a person convicted of possessing marijuana with intent to distribute to a maximum of 20 years in prison, but subsection (C) provides an exception for cases of less than 50 kilograms of marijuana. The maximum penalty in such cases is 10 years. The court remanded even though defendant’s conspiracy conviction resulted in a concurrent life sentence. U.S. v. Price, 75 F.3d 1440 (10th Cir. 1996).
10th Circuit finds failure to tell defendant at resentencing that he could challenge prior convictions was harmless error. (245) At defendant’s original sentencing hearing, the government sought to enhance defendant’s mandatory minimum sentence under § 841(b)(1)(A) based on a prior drug conviction. Defendant obtained a continuance to research the validity of the prior conviction for enhancement purposes. Although defendant found no grounds to challenge the conviction, the sentencing judge refused to enhance his sentence. The Tenth Circuit reversed on appeal. At resentencing, the judge did not again inform defendant of his opportunity to challenge the prior conviction as required by § 851(b). The Tenth Circuit held that this error was harmless. Defendant waived his right to challenge his prior conviction at the first sentencing hearing. U.S. v. Gonzalez-Lerma, 71 F.3d 1537 (10th Cir. 1995), overruled on other grounds by U.S. v. Flowers, 464 F.3d 1127 (10th Cir. 2006).
10th Circuit says failure to make mitigating role finding not error where defendant still subject to mandatory minimum. (245) Although defendant argued that he was a minor or minimal participant, the district court declined to make a finding as to defendant’s role in the offense. The court noted that such a finding would not affect defendant’s sentence because he was required by statute to serve a 60-month mandatory minimum sentence. The court imposed a 60-month sentence. The Tenth Circuit held that under these circumstances the court’s failure to make a § 3B1.2 finding was not error. The reduction sought by defendant would have taken his guideline range below the mandatory minimum. In such cases, § 5G1.1(b) says that the statutorily required sentence “shall be the guideline sentence.” U.S. v. Nieto, 60 F.3d 1464 (10th Cir. 1995).
10th Circuit reaffirms sentence based on conversion of powder to crack cocaine. (245) Defendant was convicted of crack cocaine and powder cocaine charges. The district court converted the amount of powder cocaine seized into cocaine base, then added the converted amount to the cocaine base seized. In U.S. v. Robertson, 45 F.3d 1423 (10th Cir. 1995), the Tenth Circuit affirmed, because no powder cocaine was distributed by the conspiracy. The court denied defendant’s request for rehearing, but Senior Judge Lay, on reconsideration of the matter, dissented. Judge Lay argued that the drug equivalency tables should govern the sentencing of an individual who has been convicted of two separate counts involving different drugs. U.S. v. Robertson, 49 F.3d 671 (10th Cir. 1995) (Senior Judge Lay, dissenting from denial of rehearing).
10th Circuit converts powder cocaine into quantity of crack that could have been produced. (245) Defendant was convicted of conspiracy to distribute cocaine base. The Tenth Circuit upheld the district court’s conversion of 871 grams of powder cocaine into the amount of crack cocaine that could have been produced from the powder. Defendant was charged with conspiracy to distribute crack cocaine. The district court specifically found that no “plain cocaine” was ever distributed as part of this conspiracy, and the conversion of powder to crack cocaine as well as the total amount of drugs distributed by the conspiracy was reasonably foreseeable to defendant. The conversion was also proper for a second defendant who was convicted of both conspiracy to distribute crack and possession of powder cocaine. Thus, it was permissible to sentence defendant as if the object of this conspiracy (i.e. cooking the powder cocaine to make crack) had been achieved. This defendant’s additional conviction for possession with intent to distribute powder cocaine did not alter this principle. U.S. v. Robertson, 45 F.3d 1423 (10th Cir. 1995).
10th Circuit holds defendant need not foresee drugs involved in offense in which he personally participated. (245) Defendant pled guilty to conspiring to possess 1.5 kilograms of cocaine. He argued that the court erred in applying the mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(B) for offenses involving more than 500 grams of cocaine without first determining that the drug quantity was reasonably foreseeable to him. The 10th Circuit held that even if the guidelines’ foreseeability principles were applied to mandatory minimum sentences, under the facts of this case, the quantity of drugs attributed to defendant did not need to be foreseeable to him. The foreseeability requirement does not apply to conduct in which a defendant personally participates, it applies only to the conduct of others. The drugs attributed to defendant arose from conduct in which he personally participated. Defendant drove a car to the bus station to obtain cocaine from a courier. He knew that the purpose of the trip was to obtain cocaine. The foreseeability of the quantity was irrelevant. U.S. v. Lockhart, 37 F.3d 1451 (10th Cir. 1994).
10th Circuit says mandatory minimum precluded benefits of LSD guideline amendment. (245) Defendant pled guilty to distributing more than a gram of LSD. His guideline range was 59 to 73 months, and he received the mandatory minimum sentence of 60 months. That sentence was later reduced to 39 months as a result of the government’s Rule 35 motion. After § 2D1.1(c) was amended to standardize the weight of LSD, defendant moved for a further reduction of sentence. The 10th Circuit held that because defendant was subject to the mandatory minimum sentence at the time of sentencing, he was not entitled to the benefits of the amended LSD guideline. Under the amended guideline, defendant would have had a guideline range of 18 to 24 months. However, the mandatory minimum sentence was 60 months, and the later Rule 35 reduction defendant received did not waive the mandatory minimum provisions beyond the reduction the court granted. U.S. v. Mueller, 27 F.3d 494 (10th Cir. 1994).
10th Circuit holds that mandatory minimum controls over guideline range. (245) Defendant argued for the first time in a motion under 28 U.S.C. § 2255 that he should have been sentenced under a guideline range of 63 to 78 months, rather than the statutory minimum of 10 years. The 10th Circuit addressed the merits of the motion, since the government did not raise the issue of procedural bar. Because of the patent lack of merit in defendant’s contention, the interests of judicial efficiency and conservation of judicial resources were best served by affirming the district court’s denial of defendant’s motion on the merits. Defendant’s argument overlooked section 5G1.1(b), which provides that where a statutorily mandated minimum is less than the guideline range, the mandatory minimum shall be the guideline sentence. Moreover, statutes triumph over the guideline when the two conflict. U.S. v. Allen, 16 F.3d 377 (10th Cir. 1994).
10th Circuit says specific drug quantity need not be alleged for mandatory minimum to apply. (245) Defendant argued that the district court erred in determining the sentence for his drug conspiracy, because the conspiracy charge did not allege a specific drug quantity. The 10th Circuit upheld the mandatory minimum sentence. A sentencing court is permitted to consider all relevant conduct in determining the amount of controlled substance involved in a conspiracy. U.S. v. Hoenscheidt, 7 F.3d 1528 (10th Cir. 1993).
10th Circuit remands to determine whether section 851 information was served on defendant. (245) In order to enhance a defendant’s sentence based upon prior convictions, 21 U.S.C. section 851(a)(1) requires the government to file an information with the court and serve a copy on the defendant or his counsel stating the previous convictions to be relied upon. The 10th Circuit remanded for a hearing on whether this information was served on defendant or his counsel. The government filed a motion to supplement the record with an affidavit from the prosecutor stating that defendant’s trial counsel said he was served with the enhancement information prior to trial but that he refused to file an affidavit to that effect. The appellate court declined to supplement the record, ruling that under Fed. R. App. P. 10(a) the record could not be extended to this affidavit. U.S. v. Smith, 984 F.2d 1084 (10th Cir. 1993).
10th Circuit holds that related convictions at single trial constituted multiple prior convictions. (245) Defendant was convicted in 1978 of one count of conspiring to manufacture, possess and distribute marijuana, based on numerous alleged overt acts. He was also convicted of the listed overt acts as substantive offenses. He argued that because the prior offenses were related and based on a single indictment and trial, they constituted only one prior felony drug conviction for purposes of the mandatory life imprisonment under 21 U.S.C. section 841(b)(1)(A) (viii). The 10th Circuit rejected this argument, holding that the test for section 841 enhancement purposes is whether the prior offenses constituted separate criminal episodes or a single act of criminality. In defendant’s case, although prosecuted in one case, his prior substantive offenses constituted separate criminal episodes that occurred at distinct times. U.S. v. Pace, 981 F.2d 1123 (10th Cir. 1992), abrogated on other grounds by Edwardo v. U.S., 523 U.S. 511 (1998).
10th Circuit holds that 21 U.S.C. 841(b) is applicable penalty provision for amphetamine. (245) Defendants were convicted of various amphetamine-related offenses. They contended that the district court erroneously sentenced them under subparagraph (A) of 21 U.S.C. section 841(b)(1), when it should have sentenced them pursuant to subparagraph (D), which carries a maximum sentence of 10 years. The 10th Circuit affirmed their sentences, holding that section 841(b)(1)(C), which carries a maximum penalty of 20 years, was the applicable penalty provision for amphetamine. Subparagraph (C) applies to any controlled substance in schedule I or II, except as otherwise provided. Amphetamine was a schedule II controlled substance at the time defendants committed their offenses. Defendants’ sentences were within the 20 year maximum. U.S. v. Johnson, 977 F.2d 1360 (10th Cir. 1992).
10th Circuit upholds mandatory minimum sentence under section 841 despite indictment’s failure to allege drug quantity. (245) The 10th Circuit rejected defendant’s argument that because his indictment did not allege a specific quantity of controlled substance, he could not be subject to a mandatory minimum sentence under 21 U.S.C. section 841. U.S. v. McCann, 940 F.2d 1352 (10th Cir. 1991) plainly states that the imposition of a mandatory minimum sentence is not precluded by an indictment’s failure to allege drug quantity involved in a post-guidelines case. Although McCann was decided after defendant was sentenced, its application did not violate the ex post facto clause. McCann did not overrule prior law, but merely distinguished it and held it inapplicable to post-guidelines cases. The sentencing guidelines were promulgated well before defendant participated in the conspiracy. U.S. v. Morehead, 959 F.2d 1489 (10th Cir. 1992).
10th Circuit holds that felony sentence is “final” under section 841 when period for appeal has expired or reduction to misdemeanor is no longer possible. (245) 21 U.S.C. section 841(b)(1)(A) requires a mandatory minimum sentence of 20 years if the defendant commits a drug violation “after a prior conviction for a felony drug offense has become final.” The Utah law under which defendant had been convicted provided for the felony to be converted to a misdemeanor if he successfully completed probation. He was still on probation when he was arrested on the federal drug charges, and after his federal conviction, the state revoked his probation. The 10th Circuit found that a sentence is final under section 841 when the conviction is no longer subject to examination on direct appeal, or when revocation of probation is no longer possible. The Utah sentence was final because the time for appeal had expired, and accordingly, defendant was subject to the mandatory minimum sentence. U.S. v. Short, 947 F.2d 1445 (10th Cir. 1991).
10th Circuit says court, not jury, determines drug quantity for mandatory minimum sentencing purposes. (245) Defendant argued that the evidence used in imposing a mandatory minimum sentence under 21 U.S.C. section 841(b)(1)(A) must be presented at trial, and thus it was improper for the district court to determine drug quantity based upon his presentence report. The 10th Circuit found no error. The court noted that the district court had properly relied on the drug quantities in the presentence report in determining the guideline sentence. “We see no meaningful distinction between the [g]uidelines and the drug control statute for purposes of district court findings concerning drug amounts for sentencing purposes.” U.S. v. Short, 947 F.2d 1445 (10th Cir. 1991).
10th Circuit rules stipulation did not bar consideration of additional drugs. (245) Defendant was originally charged with possession 1.5 liters of P2P with intent to manufacture methamphetamine. In order to avoid the mandatory minimum sentence, the parties stipulated that the amount of P2P possessed by defendant was “not readily provable.” The 10th Circuit ruled that the district court erred in finding that the stipulation barred it from considering additional drugs found in defendant’s home. Under guideline § 6B1.4(d), a court is not bound by a stipulation of facts. Section 1B1.3(a)(2) requires aggregation of quantities from drug offenses that were “part of the same course of conduct or common scheme or plan as the offense of conviction,” regardless of whether defendant was convicted of underlying offenses pertaining to the additional amounts. Moreover, the mandatory minimum sentence cannot be eliminated simply because a specific amount of drugs was not alleged in the indictment. However, since defendant was not fully aware of the consequences of his plea, the plea was involuntary, and he was entitled to plea anew. U.S. v. McCann, 940 F.2d 1352 (10th Cir. 1991).
10th Circuit upholds guidelines and mandatory minimum sentence against due process challenges. (245) Defendant claimed that the guidelines violate due process by impermissibly limiting the court’s consideration of the circumstances of the case, precluding defendants from demonstrating to the judge by relevant evidence that a downward departure is justified, and allows the prosecutor to determine the sentence. The 10th Circuit, noting that it had previously decided these issues, summarily rejected the arguments. The court also rejected defendant’s contention that the mandatory minimum sentence improperly removed a judge’s sentencing discretion. U.S. v. Hatch, 925 F.2d 362 (10th Cir. 1991).
10th Circuit vacates where district court failed to determine offense level or criminal history. (245) Defendant was sentenced to 30 years under the Armed Career Criminal Act. The case was remanded to consider guideline § 5G1.1, which requires the sentence to be within the guideline range unless the range is less than the mandatory minimum or statutory maximum. At resentencing, the court found that the defendant should receive the mandatory minimum sentence of 15 years. The court then departed upward and sentenced defendant to 30 years. The 10th Circuit vacated the sentence again. The district court failed to follow the guidelines in determining the guideline range. It improperly equated the mandatory minimum sentence with the “guideline sentence.” The 10th Circuit also found that it could not review the upward departure, since the district court provided no information how it determined the offense level or criminal history. The sentence was vacated and remanded. U.S. v. Tisdale, 921 F.2d 1095 (10th Cir. 1990).
11th Circuit says prosecutor’s ability to seek mandatory life sentence did not violate separation of powers. (245) Defendant argued that the combination of 18 U.S.C. § 3559(c) and 21 U.S.C. § 851, which subjected him to a mandatory life sentence, violated separation of powers principles by giving the executive branch “the power to prosecute and the power to sentence.” His argument was based on the fact that the mandatory life sentence under § 3559(c) applies only if the government chooses to file a notice of prior convictions under § 851. The Eleventh Circuit disagreed, noting that its sister circuits have routinely held that § 3559 does not violate separate of powers principles. U.S. v. Harris, 741 F.3d 1245 (11th Cir. 2014).
11th Circuit permits court to reduce crack sentence where original sentence was above mandatory minimum. (245) Defendant was convicted in 2010 of crack charges, resulting in a guideline range of 100-125 months. He faced a 120-month mandatory minimum, which changed his guideline range to 120-125 months. The court then departed upward under § 4A1.3, increasing defendant’s guideline range to 210-262 months, and sentenced him to 240 months. Defendant later brought a 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on retroactive amendments to the crack guidelines, but the district court found defendant was ineligible for relief because his guideline range was based on a statutory mandatory minimum. The Eleventh Circuit disagreed, holding that a defendant subject to a statutory mandatory minimum is eligible for § 3582(c)(2) relief if he was sentenced above that minimum and a retroactive amendment lowers the high-end of his guidelines range. Amendment 750 lowered defendant’s guideline range from 120-125 months to simply 120 months. The district court erroneously concluded that it lacked the authority to reduce defendant’s sentence under § 3582(c)(2). U.S. v. Hargrove, 732 F.3d 1253 (11th Cir. 2013).
11th Circuit rejects safety valve relief for defendant who sold firearms and drugs to drug dealer. (245) Defendant was a drug dealer who also sold firearms. Although he received a § 2D1.1(b)(1) firearm enhancement, he argued that he was still entitled to safety valve relief, because he did not possess the firearms “in connection with” the charged drug offense. The Eleventh Circuit disagreed. Defendant had the burden of negating a connection, but he produced no evidence. Given the number and unusual types and firearms that defendant sold to Jones, the fact that defendant was not selling user quantities of drugs to Jones, and the duration and constant reiteration of Jones’s interest in both drugs and guns, it was clear that defendant knew he was selling firearms to a drug dealer. Moreover, on one date, defendant sold both meth and firearms to Jones. Although there was no evidence that the guns were loaded or that defendant felt he might need a firearm to protect himself against Jones, the proximity of the guns to the drugs alone had the potential to facilitate the offense. U.S. v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013).
11th Circuit says mandatory life sentence based on prior juvenile convictions did not violate Eighth Amendment. (245) Defendant was convicted of methamphetamine trafficking and possession, and received a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(viii). He argued for the first time on appeal that the mandatory life sentence constituted cruel and unusual punishment because it was based on two prior convictions for offenses defendant committed when he was 17. The Eleventh Circuit held that the court’s consideration of the juvenile drug offenses was not plain error. Defendant cited no binding authority that holds that a mandatory life sentence based in part upon prior juvenile offenses violates the Eighth Amendment. The panel also rejected defendant’s argument that his sentence was unreasonable because the district court considered only the amount of methamphetamine and his prior drug convictions, and failed to consider the 18 U.S.C. § 3553(a) factors. The district court was bound by the statutory mandatory minimum sentences, even post-Booker. U.S. v. Hoffman, 710 F.3d 1228 (11th Cir. 2013).
11th Circuit holds that escape under Florida law is a “serious violent felony.” (245) A federal statute, 18 U.S.C. § 3559(c), requires imposition of a mandatory life sentence on a defendant convicted of a “serious violent felony” if he has two prior convictions for “serious violent felonies.” The term “serious violent felony” is defined in part to mean an offense punishable by 10 years of imprisonment or more that by its nature involves a substantial risk that physical force against the person of another may be used while committing the offense. Defendant had a prior conviction for escape, in violation of Florida Stat. § 944.40. Defendant argued that his conviction under that statute should not count as a “serious violent felony” because his conduct actually violated the Florida statute making failure to return to custody a crime. The Eleventh Circuit held (1) that escape in violation of § 944.40 was a “serious violent felony,” (2) that defendant could not attack his prior Florida conviction in a sentencing proceeding under § 3559(c), and (3) that, in any event, his conduct constituted escape under Florida law. U.S. v. Sanchez, 586 F.3d 918 (11th Cir. 2009)..
11th Circuit says conviction record must show drug quantity to be “serious drug offense.” (245) Under 18 U.S.C. § 3559(c), a defendant convicted of a “serious violent felony” must be sentenced to a mandatory life term if the defendant has a prior conviction for a “serious violent felony” and a prior conviction for a “serious drug offense.” The statute defines “serious drug offense” as an offense that, if prosecuted in federal court, would have been punishable under 21 U.S.C. §§ 841(b)(1)(A) or 960(b)(1)(A). Those statutes are limited to offenses involving five kilograms or more of cocaine or 50 grams or more of cocaine base. Defendant’s two prior convictions were under Florida Stat. § 893.13(c)(1) for delivering, manufacturing, or possessing with intent to deliver cocaine within 1,000 feet of a school. The charging instruments for those offenses did not disclose the quantity of cocaine that defendant sold. Without objection from defendant, the district court held that these offenses constituted “serious drug offenses” within the meaning of § 3559(c). The Eleventh Circuit held that because the charging instruments for defendant’s prior Florida offenses did not specify the quantity of cocaine involved, the district court committed plain error in finding that the Florida offenses were “serious drug offenses” and in imposing a life sentence. U.S. v. Sanchez, 586 F.3d 918 (11th Cir. 2009).
11th Circuit rejects equal protection challenge to mandatory minimum statute. (245) Under 18 U.S.C. § 3559(c), a defendant convicted of a “serious violent felony” who has prior convictions for specified “serious violent felonies” is subject to a mandatory life sentence. The statute defines “serious violent felony” to include robbery and certain felonies involving the use of force, but it also states that those offenses are not “serious violent felonies” if they did not involve use of a firearm or result in death or serious bodily injury. Defendant had a prior conviction for escape that qualified as a “serious violent felony.” He argued that § 3559(c) violated the Equal Protection Clause because it did not allow him to show that the offense did not involve use of a firearm or result in death or serious bodily injury. The Eleventh Circuit found that argument frivolous because § 3559(c) allows a defendant with a prior conviction for an offense other than robbery to show that an offense that otherwise qualifies a “serious violent felony” did not involve a firearm or result in death or serious bodily injury. U.S. v. Sanchez, 586 F.3d 918 (11th Cir. 2009).
11th Circuit says § 5K1.1 motion did not waive statutory minimum for crack amendment purposes. (245) Defendant moved under 18 U.S.C. § 3582 for a sentence reduction based on Amendment 706, which lowered the offense level for crack cocaine offenses. Although he was subject to a 120-month mandatory minimum sentence, at his original sentencing, the district court departed below the statutory minimum based on the government’s § 5K1.1 motion, and sentenced him to 60 months. The Eleventh Circuit held that the court’s granting of the § 5K1.1 motion did not waive the statutory mandatory minimum sentence and make defendant eligible for a sentence reduction under Amendment 706. Amendment 706 only reduces the base offense level for the crack offense, and he was still subject to the same minimum sentencing range post-amendment. U.S. v. Williams, 549 F.3d 1337 (11th Cir. 2008).
11th Circuit holds that sentence disparity not grounds for below mandatory minimum sentence. (245) Defendant was convicted of drug conspiracy charges carrying a 120-month mandatory minimum sentence. See 18 U.S.C. § 841(b)(91)(A)(i). The district court nonetheless imposed an 80-month sentence to avoid a disparity between defendant’s sentence and those of his co-conspirators who had received sentences below 90 months. The government appealed, and the Eleventh Circuit reversed. The government did not file a substantial assistance motion, and defendant did not qualify for safety valve relief. Section 3553(a) does not authorize a district court to impose a sentence below the statutory mandatory minimum. It merely lists the factors the district court must consider in determining an appropriate sentence, one of which is the need to avoid unwarranted sentencing disparities. Section 3553(a) makes no mention of mandatory minimum sentences, much less purports to give the district court the authority to impose a sentence below the applicable statutory minimum sentence. Courts remain bound by statutes designating mandatory minimum sentences even after the remedial holding of Booker. Although the court’s concern for the disparity between defendant’s sentence and that of his co-conspirators was an appropriate factor to consider in determining where defendant’s sentence should fall between the applicable statutory minimum and maximum sentences, it did not provide a legal basis for imposing a sentence below he statutory minimum sentence. U.S. v. Castaing-Sosa, 530 F.3d 1358 (11th Cir. 2008).
11th Circuit applies mandatory life sentence even though conspiracy began before second conviction became final. (245) Defendant was convicted of cocaine conspiracy charges, in violation of 21 U.S.C. §§ 841(a)(1), § 846. Section § 841(b)(1)(A)(ii) provides for a mandatory minimum sentence of life imprisonment if a person commits a violation of § 841 involving five kilograms or more of cocaine “after two or more prior convictions for a felony drug offense have become final.” Defendant had a 1989 state drug conviction and a 2005 state drug conviction. He argued that to be subject to the mandatory minimum, he had to be involved in a transaction involving five or more kilograms of cocaine after his second prior conviction became final. The Eleventh Circuit held that the mandatory life sentence was properly applied to defendant. Although the conspiracy came into existence before defendant’s second conviction was final, defendant continued to be involved in the conspiracy after both prior conviction were final. He “committed” the crime of conspiracy throughout the duration of the conspiracy. Thus, he committed the crime after he had two final felony-drug trafficking convictions. U.S. v. Williams, 469 F.3d 963 (11th Cir. 2006).
11th Circuit holds that court properly considered weight of meth and cutting agent. (245) Police recovered from defendant’s house 1.2 kilograms of a mixture containing a detectible amount of methamphetamine and dimethyl sulfone, a common cutting agent for methamphetamine. At issue was whether this mixture satisfied the legal definition of a “mixture” under 21 U.S.C. § 841(B)(1)(a)(viii). In Chapman v. U.S. 500 U.S. 453 (1991), the Supreme Court ruled that it is proper to include the weight of a cutting agent when determining the total weight of a “mixture or substance containing a detectable amount” of a particular drug. Defendant argued that the mixture was so diluted it would not be marketable or usable in the streets. Because the methamphetamine was mixed with a cutting agent, the Eleventh Circuit held that the district judge properly considered the combined weight of the cutting agent and the meth. Congress has made a policy decision that purity is not an element of § 841(b)(1)(A)(viii). Since the weight of the mixture exceeded the 500-gram threshold necessary to trigger the mandatory minimum, the district court’s ten-year sentence was correct. U.S. v. Segura-Baltazar, 448 F.3d 1281 (11th Cir. 2006).
11th Circuit says that Blakely does not undermine validity of mandatory minimum sentences. (245) Defendants were convicted of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(b)(1)(C). Because the court found that “death or serious bodily injury result[ed] from the use” of the illegal substance, the prescribed minimum sentence was 20 years. Defendants brought a motion under 28 U.S.C. § 2255 to vacate their sentences, arguing that their enhanced mandatory minimum sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court granted the motions on the basis of Apprendi, but the Eleventh Circuit reversed. The Apprendi rule does not apply in mandatory minimum circumstances where the enhanced minimum does not exceed the non-enhanced maximum sentence. “Whatever other effect the Supreme Court’s recent decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), may have, it does not undermine the validity of minimum mandatory sentences, at least not where the enhanced minimum does not exceed the non-enhanced maximum.” Spero v. U.S., 375 F.3d 1285 (11th Cir. 2004).
11th Circuit holds that New York youthful offender adjudication was prior conviction under § 841. (245) In 1987, defendant was adjudicated under New York’s youthful offender statute, N.Y. Crim. Proc. §§ 720.10-720.35, which explicitly provides that a youthful offender adjudication is not a conviction. Defendant argued that this adjudication did not count as a prior conviction for sentencing enhancement purposes under 21 U.S.C. § 841(b)(1)(A). That section provides for a mandatory minimum sentence of 20 years for defendants who commit certain drug related crimes “after a prior conviction for a felony drug offense has become final.” The Eleventh Circuit held that the youthful offender adjudication qualified as a prior conviction for § 841 sentencing enhancement purposes. In analogous cases, the court has held that a plea of nolo contendere in state court with adjudication withheld is a conviction that supports a § 841 sentence enhancement. See U.S. v. Fernandez, 58 F.3d 593 (11th Cir. 1995); U.S. v. Mejias, 47 F.3d 401 (11th Cir. 1995). If a defendant who is not even adjudicated guilty is considered to have suffered a conviction within the meaning of § 841, then a youthful offender who pleads guilty and is adjudicated must also be considered to have suffered a prior conviction, even if the state law does not consider him “convicted” and his record is sealed. U.S. v. Acosta, 287 F.3d 1034 (11th Cir. 2002).
11th Circuit holds that departure below mandatory minimum was plain error. (245) Defendant pled guilty to aircraft piracy, in violation of 49 U.S.C. § 46502. Although the offense carries a mandatory minimum 240-month sentence, the district court departed downward based on aberrant behavior and imposed a 150-month sentence. The Eleventh Circuit reversed, holding that the departure below the mandatory minimum sentence was plain error. The guidelines range for defendant’s offense was 161-210 months’ imprisonment, but the offense of conviction carried a statutorily imposed minimum sentence of 240 months’ imprisonment. Where a guidelines range falls entirely below a mandatory minimum sentence, the court must follow the mandatory statutory minimum sentence. There are two situations where a court may depart below a mandatory minimum: (1) when the government files a substantial assistance motion; and (2) when the defendant satisfies the criteria for “safety valve” relief and is charged with a drug offense. Neither of these exceptions were applicable here. U.S. v. Clark, 274 F.3d 1325 (11th Cir. 2001).
11th Circuit holds that service of § 851 notice was complete when mailed. (245) The government filed its notice of intent to seek a § 851 enhancement on the day before trial commenced, and mailed the notice to defendant’s attorney the same day. If service was complete on the day that the notice was mailed, then the notice was timely. Defendant, however, argued that Fed.R.Crim.P. 45(e) required the court to add three days to the effective date of service of the notice, which would make the notice here untimely. The government maintained that Rule 49 was controlling. Rule 49 provides that service should be made on a criminal defendant’s attorney “in the same manner provided in civil actions.” The relevant civil rule, Rule 5(b), provides that “Service by mail is complete upon mailing.” The Eleventh Circuit rejected defendant’s argument. By its terms, Rule 45 only applies in situations in which a defendant “has the right or is required to do an act within a prescribed period after the service of a notice.” Although § 851 provides that a defendant may file a response to the prosecution’s notice denying the allegations, it does not prescribe a period in which that response must be filed. Therefore, by its own terms, Rule 45 is inapplicable. Moreover, even if Rule 45 were applicable, it would operate only to extend the period for filing, it would not affect the date on which service on defendant was complete. U.S. v. Novaton, 271 F.3d 968 (11th Cir. 2001).
11th Circuit rejects claim that state conviction was part of same course of conduct as current offense. (245) Defendant argued that he was prejudiced by his counsel’s failure to object at sentencing to enhancement of his sentence based on a prior drug conviction that was part of the same course of conduct as his federal charge. The Eleventh Circuit rejected defendant’s claim that the state conviction was part of the same course of conduct as the current offense. Although defendant argued that insufficient time passed between his state conviction and federal arrest to allow use of the state conviction as a predicate offense, the test is not the mere passage of time. Because the intent of the enhancement provision is to target recidivism, the focus of the inquiry is on “the degree of criminal activity that occurs after a defendant’s conviction for drug-related activity is final rather than when the conspiracy began.” U.S. v. Hansley, 54 F.3d 709 (11th Cir. 1995). In U.S. v. Howard, 115 F.3d 1151 (4th Cir. 1997), evidence was presented that the defendant continued to engage in the conspiracy after his state conviction. Similarly, defendant continued to provide drugs to Johnson as evidenced by the tape of a March phone call. When defendant was arrested, he had a significant amount of cash which he admitted he was going to use to purchase drugs. “The only thing that aborted [his] participation in the drug conspiracy was his arrest in this case.” Hagins v. U.S., 267 F.3d 1202 (11th Cir. 2001).
11th Circuit applies Teague bar to Apprendi without regard to merits of underlying claim. (245) Defendant argued that his sentence should be reduced to the statutory maximum provided for the least quantity of marijuana, because the indictment under which he was convicted did not allege any larger amount, and the jury did not make a finding as to drug quantity. He contended that the Apprendi errors were jurisdictional. The Eleventh Circuit held that defendant’s position was foreclosed by its recent decision in McCoy v. U.S., 266 F.3d 1245 (11th Cir. 2001), which held that Apprendi errors are not jurisdictional. McCoy also held that under the doctrine of Teague v. Lane, 489 U.S. 288 (1989), the Apprendi decision is not retroactively applicable to cases in which the conviction became final before Apprendi was decided. Defendant’s situation was different from the one in McCoy, because the sentences imposed on defendant exceeded the maximum sentences for the crimes of conviction when only a detectable amount of the drugs is involved. However, the Teague bar applies without regard to the merits of the underlying claim, or that doctrine would have no function and meaning. Hamm v. U.S., 269 F.3d 1247 (11th Cir. 2001).
11th Circuit holds that finality of conviction did not run from revocation of first-offender status. (245) In February 1996, defendant pled guilty in Georgia state court to drug charges. He was sentenced under Georgia’s First Offender Act, adjudication of guilt was withheld, and he was given five years’ probation. Because of his arrest for the current federal offense, the state court in January 1997 revoked his first offender status and sentenced him to 15 years in prison. When defendant was sentenced on the federal charge, the district court enhanced his sentence under 21 U.S.C. § 841(b)(1)(A) based on the prior state conviction. Defendant argued that his prior conviction was not final because he had not exhausted his direct appeal of the revocation of his first offender status. The Eleventh Circuit held that defendant’s conviction became final when the 30 days available to him to appeal the original disposition expired. Defendant’s claim that the finality of his conviction should run from the direct appeal of the revocation of his first-offender status was “specious.” In U.S. v. Fernandez, 58 F.3d 593 (11th Cir. 1995), the defendant had received a year of probation after pleading nolo contendere to a state charge of trafficking in cocaine. The court held that a sentence may be enhanced based on such a prior state sentence of probation under a deferral statute. If such a conviction can be used to enhance a defendant’s sentence without a revocation of probation, it follows that a court need not wait for revocation of probation and any related appeal to deem the conviction final. Hagins v. U.S., 267 F.3d 1202 (11th Cir. 2001).
11th Circuit holds that Apprendi error is not jurisdictional defect, and claim was barred by Teague. (245) Defendant argued that his claim that the indictment did not allege drug quantity, as required by Apprendi v. New Jersey, 530 U.S. 466 (2000), was jurisdictional. A jurisdictional defect is one that strips the court of its power to act and makes its judgment void. The Eleventh Circuit held that a claimed Apprendi error is not jurisdictional. If Apprendi and analogous errors were jurisdictional, an appellate court could not affirm despite the error; jurisdictional errors are not subject to plain or harmless error analysis. The panel further held that defendant’s Apprendi claim was barred by Teague v. Lane, 489 U.S. 288 (1989). The Teague doctrine bars retroactive application in a § 2255 proceeding of any new constitutional rule of criminal procedure which had not been announced at the time the movant’s conviction became final, with two narrow exceptions, neither of which were applicable. Apprendi did not decriminalize any class of conduct or prohibit a certain category of punishment for a class of defendants. Also, Apprendi was not sufficiently fundamental to constitute a “watershed” rule of criminal procedure. Moreover, defendant would be barred from challenging his sentence on Apprendi grounds because he failed to raise the argument on direct appeal. He could not establish cause and prejudice for his failure to assert the claim on direct appeal. McCoy v. U.S., 266 F.3d 1245 (11th Cir. 2001).
11th Circuit rejects departure below mandatory minimums. (245) The district court gave defendant a 240-month downward departure on his 592-month sentence on the grounds that the sentence overrepresented the seriousness of the offenses and his criminal history overstated his past conduct. The Eleventh Circuit held that the district court improperly departed below mandatory minimum sentences established by Congress. Defendant was responsible for more than 50 grams of cocaine base, and thus, under 21 U.S.C. § 841, the court was required to sentence defendant to a mandatory minimum term of 240 months. As for defendant’s two firearm convictions, 18 U.S.C. § 924(c)(1) provided for a sentence of five years for first conviction, and a sentence of 20 years for a second or subsequent conviction. Section 924(c)(1) also provides that the term of imprisonment shall not “run concurrently with any other term of imprisonment ….” The only two circumstances in which a court can depart below a statutory minimum were not applicable here. The government did not file a motion under 18 U.S.C. § 3553(e) and USSG § 5K1.1 for a substantial assistance departure. Defendant did not qualify for safety valve relief because he had four criminal history points, possessed a gun during two offenses, and held an aggravating role under § 3B1.1. U.S. v. Simpson, 228 F.3d 1294 (11th Cir. 2000).
11th Circuit says supplemental discovery response did not meet § 851 notice requirements. (245) The government’s initial § 851 notice of sentencing enhancement was defective because it failed to state the previous convictions upon which the government intended to rely as a basis for enhancement. The Eleventh Circuit held that the government’s supplemental discovery response was not sufficient to remedy its failure to follow the strict requirements of § 851. “Requiring a defendant to combine a vague enhancement notice with an unrelated pleading that is often filed without the purpose of sentencing enhancement is inconsistent with strict compliance.” U.S. v. Rutherford, 175 F.3d 899, 904 (11th Cir. 1999). U.S. v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999).
11th Circuit says § 851 notice filed during plea hearing was timely. (245) For certain drug offenders with two prior felony drug offenses, 21 U.S.C. § 841(b)(1)(A) prescribes a mandatory minimum life sentence. To trigger this mandatory minimum, the government must file “before trial, or before entry of a plea of guilty,” an infor-mation stating the previous convictions to be relied upon. 21 U.S.C. § 851(a)(1). The government filed the § 851 information during defendant’s plea hearing on March 16. Defendant argued that this filing was not “before entry of a plea of guilty,” because he had already filed a “Notice of Entry of Plea of Guilty” on March 13. The Eleventh Circuit ruled that the filing of the information during the plea hearing, before the district court accepted defendant’s guilty plea, complied with § 851’s requirement that the information be filed “before entry of a plea of guilty.” Defendant’s “entry of a plea of guilty” did not occur until the plea hearing, after the district court’s Rule 11 colloquy advising him of his rights. U.S. v. Duffy, 179 F.3d 1304 (11th Cir. 1999).
11th Circuit rules § 851 notice was inadequate because it did not list prior convictions. (245) To obtain a sentence enhancement for a recidivist drug offender, 21 U.S.C. § 841 requires the government to comply with the notice requirements of § 851(a)(1). Under § 851(a)(1), a recidivist enhancement may not be imposed for a jury conviction unless before trial the government prosecutor files an information with the court “stating in writing the previous convictions to be relied upon.” The government did not list any prior convictions in its § 851 notice. The government contended that the admitted defect in the notice was cured because it specifically listed the prior convictions in a contemporaneously filed notice of intent to introduce evidence of prior convictions at trial, and a later discovery response. The Eleventh Circuit held § 851 requires strict compliance; the notice here was inadequate because it did not list the prior convictions as required by § 851(a)(1). Requiring a defendant to combine a vague enhancement notice with an unrelated pleading that is often filed without the purpose of sentence enhancement is inconsistent with strict compliance. U.S. v. Rutherford, 175 F.3d 899 (11th Cir. 1999).
11th Circuit holds sentence increase in § 851 does not improperly delegate legislature power to executive. (245) Defendant was convicted of conspiracy to possess with intent to distribute cocaine. He argued that 21 U.S.C. § 841 et. seq. is an unconstitutional delegation of legislative authority to the executive branch because it gives prosecutors unbridled discretion to determine whether or not to file a sentencing enhancement under § 851 without providing any “intelligible principle” to guide that discretion. The Eleventh Circuit held that § 851’s sentencing enhancement procedure did not improperly delegate legislative power to the executive branch. The power that prosecutors exercise under § 851 is analogous to the executive branch’s classic charging power. The Supreme Court has upheld the prosecutor’s ability to influence the sentence through the charging decision. U.S. v. Cespedes, 151 F.3d 1329 (11th Cir. 1998).
11th Circuit applies § 841(b) even though there was no actual cocaine in reverse sting operation. (245) The government ran a reverse sting operation under which defendants agreed to invade and steal drugs from a house they thought contained illegal drugs. In fact, there was no house and there were no drugs. Defendants argued that because there was no actual cocaine involved, their sentences were invalid under 21 U.S.C. § 841(b). They argued that the penalty applies only to substantive offenses and not to conspiracy offenses. The Eleventh Circuit rejected this because the plain language of the conspiracy statute, 21 U.S.C. § 846, says that any person who conspires to commit an offense shall be subject to the same penalties as those applicable the offense itself. U.S. v. Sanchez, 138 F.3d 1410 (11th Cir. 1998).
11th Circuit says retroactive marijuana amendment does not permit sentence below statutory minimum. (245) The district court held defendant accountable for more than 100 but less than 400 marijuana plants. After defendant was sentenced, the Sentencing Commission reduced the marijuana equivalency in § 2D1.1(c) from one kilogram per plant to only 100 grams per plant, and designated the amendment for retroactive effect. Defendant moved under 18 U.S.C. § 3582(c)(2) to reduce his 63-month sentence. The government argued that the statutory minimum 60-month sentence would still apply, and the district court refused to resentence defendant. On appeal, the Eleventh Circuit held that the guideline amendment did not affect the statutory minimum sentence. The five-year mandatory minimum sentence applies in cases involving 100 or more marijuana plants, regardless of weight. Nor did the district court abuse its discretion in refusing to reduce the sentence to the mandatory minimum sentence of 60 months. A district court need not articulate specifically each of the factors listed in 18 U.S.C. § 3553(a) so long as the record demonstrates that the pertinent factors were taken into account. The court here specifically referred to the government’s opposition, which in turn cited the specific elements that were relevant to the § 3553(a) inquiry. U.S. v. Eggersdorf, 126 F.3d 1318 (11th Cir. 1997).
11th Circuit rejects sentence enhancement based on non‑final convictions. (245) Defendant was convicted of conspiracy to distribute cocaine. The district court imposed a mandatory minimum life term under 21 U.S.C. § 841(b)(1)(a) based on “two or more prior convictions for a felony offense [that] have become final.” The Eleventh Circuit reversed, holding that defendant’s two Florida convictions were not “prior” offenses because they were not final. A conviction is not final until “all avenues of direct attack have been exhausted.” Defendant was convicted on the state count on October 17, 1991 and was sentenced on November 18, 1991. While the record did not show whether he appealed, it was clear he would not have exhausted his appeal rights under state rules until after the conspiracy had ended in 1991. U.S. v. Brazel, 102 F.3d 1120 (11th Cir. 1997).
11th Circuit rules court should have permitted challenge to prior conviction used for § 841(b) enhancement. (245) Defendant was convicted of drug charges. At sentencing, the district court refused to allow defendant to collaterally attack a prior conviction used to enhance his sentence under 21 U.S.C. § 841(b)(1)(A)(iii). The 11th Circuit held that defendant should have been permitted to attack the validity of his prior conviction, because he was not sentenced under the guidelines but under § 841(b). The sentence enhancement scheme in § 841 is implemented in § 851. That section specifically sets forth a procedure by which a defendant who is subject to a statutory sentence enhancement may challenge the constitutionality of an earlier conviction that is the basis for the enhancement. Unlike the sentencing guidelines, § 851 allows a defendant to assert any constitutional challenge to the prior conviction. U.S. v. Mikell, 102 F.3d 470 (11th Cir. 1996).
11th Circuit says meth penalty before 1990 was not unconstitutionally vague despite ambiguity. (245) Due to a technical error, subsections (A)(viii) and (B)(viii) of 21 U.S.C. § 841(b)(1) once prescribed two different punishments for the same methamphetamine offense. Subsection (A)(viii) provided for a term between 10 years and life, while subsection(B)(viii) provided for a term between five and 40 years. A 1990 amendment, passed after defendant’s crimes, resolved the ambiguity. The Eleventh Circuit held that § 841(b)(1) was not unconstitutionally vague prior to its amendment. Congress clearly defined the conduct prohibited (possession of 100 grams of a substance containing methamphetamine) and defendant knew he faced imprisonment of at least five years. This satisfied due process. The district court properly followed the rule of lenity by sentencing defendant under subsection (B)(viii), which provided a lesser punishment than subsection (A)(viii). The rule of lenity did not require the court to apply subsection (C), a less severe catchall provision with a maximum penalty of 20 years imprisonment. U.S. v. Trout, 68 F.3d 1276 (11th Cir. 1995).
11th Circuit says information filed before first of three trials in same court was adequate. (245) Defendant was originally convicted of drug crimes, but the convictions were reversed because of district court error. The second trial ended in mistrial due to a juror’s misconduct. A third trial convicted defendant again. The district court refused to enhance defendant’s sentence based on a prior conviction because the government did not refile the § 851 information before the third trial. The government had filed the information prior to the first trial. The Eleventh Circuit held that once the information is filed, it is not necessary that it be refiled for each consecutive trial in the same court. The statute does not suggest that the information can be filed too early. The same attorney represented defendant at all three trials, knew that the information had been filed, knew about the prior conviction, and had addressed that prior conviction at sentencing in the first trial. The fact that there were different sentencing judges did not make a difference. U.S. v. Williams, 59 F.3d 1180 (11th Cir. 1995).
11th Circuit holds that sentence of probation under state deferral statute is a prior conviction under § 841. (245) Under 21 U.S.C. § 841, a person with a prior state or federal drug conviction who commits a federal drug offense faces an enhanced sentence. Defendant argued that his prior state drug offense did not result in a “conviction” because he pled nolo contendere and adjudication was withheld pending his service of one year of probation. The Eleventh Circuit held that a state offense in which a defendant pleads nolo contendere and adjudication is withheld pending completion of probation constitutes a “prior conviction” for purposes of § 841’s enhancement provision. Under circuit caselaw, such a case is considered a conviction for purposes of career offender status under guideline § 4B1.1. There is no reason not to also treat it as a conviction for purposes of § 841 enhancement. U.S. v. Fernandez, 58 F.3d 593 (11th Cir. 1995).
11th Circuit says prior conviction that was part of instant conspiracy can be counted under § 841(b). (245) Defendant received a mandatory life sentence because he committed the instant drug offense with two or more prior felony drug convictions. The district court relied on two prior Georgia drug possession convictions. Defendant argued that one of the convictions was related to an overt act of the instant conspiracy, and therefore could not be considered a prior, unrelated conviction. The Eleventh Circuit disagreed. The threshold issue is whether a prior conviction is separate in time and locale. The purpose of the enhancement is to target recidivism. Thus it is more appropriate to focus on how much criminal activity occurred after defendant’s conviction, rather than on when the conspiracy began. Defendant’s Georgia conviction became final in 1989. He continued to engage in the drug conspiracy until his arrest in 1990. U.S. v. Hansley, 54 F.3d 709 (11th Cir. 1995).
11th Circuit says nolo plea and withheld adjudication was conviction under § 841(b)(1) (B). (245) Defendant was convicted of cocaine and marijuana charges. The district court found that defendant’s prior nolo contendere plea to a third-degree drug felony in Florida, where adjudication was withheld, was a prior felony drug conviction under 21 U.S.C. § 841(b)(1)(B). Accordingly, it imposed a 10-year mandatory minimum sentence. The Eleventh Circuit, applying federal law to the question, agreed that the nolo contendere plea was a conviction, even though the court withheld adjudication. Such pleas are convictions under the career offender provisions of the guidelines. A different holding here would disrupt uniformity in federal sentencing and frustrate the purpose of sentence enhancement under § 841(b)(1) (B)—to punish and deter recidivism. U.S. v. Mejias, 47 F.3d 401 (11th Cir. 1995).
11th Circuit holds § 851 information filed before jury was impaneled was filed “before trial.” (245) On the day defendant’s trial was to begin, but before the jury was impaneled, the government announced in open court that it was filing a § 851 information to obtain an enhanced sentence based on defendant’s prior felonies. The government then provided defense counsel with two copies of the information. The Eleventh Circuit held that by orally notifying the court and personally serving defendant with a copy of the information before trial, the government complied with § 851. “Before trial” did not mean before the first day of trial, since the jury had not been impaneled. U.S. v. Rice, 43 F.3d 601 (11th Cir. 1995)..
11th Circuit says lack of notice of severity of sentence is not grounds to depart below mandatory minimum. (245) The district court found that defendant was responsible for 14.56 grams of LSD, which mandated a minimum sentence of 120 months. The district court departed downward under § 5K2.0 to a 78-month sentence, stating that defendant did not have adequate notice that his punishment could be doubled by proof at sentencing that he had sold five additional hits of LSD. The Eleventh Circuit reversed, finding no authority for a departure from a statutory minimum due to lack of notice of the potential severity of the sentence. U.S. v. Smith, 39 F.3d 1143 (11th Cir. 1994).
11th Circuit says acts forming a single criminal episode are a single conviction for § 841(b) purposes. (245) The district court imposed a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) based on defendant’s three prior felony convictions. On appeal, the Eleventh Circuit held that prior convictions resulting from acts forming a single criminal episode should be treated as a single prior conviction for purposes of § 841(b)(1)(A). But this was not the case here. The court said that the fact that defendant received concurrent sentences did not make the convictions related. Convictions arising from acts that occur on different occasions or are otherwise distinct in time are separate offenses under § 841(b)(1)(A), regardless of whether the acts are part of a common scheme or plan. Thus, even if defendant’s prior convictions were part of an overarching drug conspiracy, the convictions were separate because the acts were separate in time and locale and required separate planning and execution. U.S. v. Rice, 38 F.3d 1536 (9th Cir. 1994).
11th Circuit upholds enhancement for state prior convictions obtained without indictment. (245) A person with two or more prior drug felony convictions who is later convicted of possessing 50 or more grams of cocaine base is subject to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A). Defendant argued that his two Florida state court convictions could not be used for sentence enhancement purposes because they were prosecuted by information without waiver of indictment. The 11th Circuit held that the prior state felonies need not have been prosecuted by indictment for sentencing enhancement purposes. Section 851(a)(2) only requires the present federal offense to be prosecuted by indictment, not the previous felony drug convictions. U.S. v. Harden, 37 F.3d 595 (11th Cir. 1994).
11th Circuit holds that drug quantity need not be specified in indictment. (245) Defendant argued that the minimum mandatory sentence of life imprisonment in 21 U.S.C. § 841(b)(1)(A) is inapplicable unless the indictment specifies the amount of cocaine involved in the offense. The 11th Circuit disagreed. Since drug quantity is relevant only at sentencing, there is no reason that the quantity involved must appear in the indictment if the defendant is otherwise on adequate notice that enhanced penalties are available. U.S. v. Harden, 37 F.3d 595 (11th Cir. 1994).
11th Circuit finds quantity of methamphetamine by multiplying purity times weight. (245) Defendant possessed 441 grams of a substance that was 37 percent methamphetamine. Under 21 U.S.C. § 841(b)(1)(A)(viii), a defendant with a prior felony drug conviction is subject to a mandatory minimum 20 years if he possessed 100 grams or more of methamphetamine, or one kilogram of a mixture or substance containing a detectable amount of methamphetamine. The 11th Circuit held that the quantity of methamphetamine is determined by multiplying the purity of the mixture by its weight. “[One] hundred grams of methamphetamine” in § 841(b)(1) (A)(viii) refers to 100 grams of the drug, however it is found. Defendant was subject to the mandatory minimum since he possessed 163 grams of methamphetamine. U.S. v. Frazier, 28 F.3d 99 (11th Cir. 1994).
11th Circuit finds no time limit on prior felonies triggering mandatory life sentence. (245) 21 U.S.C. § 841(b)(1)(A) mandates a life sentence for a defendant with two or more prior felony drug convictions who is convicted of an offense involving at least 100 grams of methamphetamine. Defendant argued that his 15-year-old prior conviction should not have been considered for sentencing enhancement purposes. The 11th Circuit approved the mandatory life sentence, since the statute does not impose any time limit on the felonies triggering the enhancement. Defendant’s claim that he should have been sentenced under the career offender guideline failed. Section 5G1.1(b) provides that where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the mandatory minimum sentence becomes the guideline sentence. U.S. v. Hudacek, 24 F.3d 143 (11th Cir. 1994) (en banc), vacating U.S. v. Hudacek, 7 F.3d 203 (11th Cir. 1993).
11th Circuit applies guideline definition of cocaine base to mandatory minimum. (245) Defendant possessed a liquid that tested positive for cocaine base. The district court treated the liquid as cocaine hydrochloride, and the 11th Circuit affirmed. Effective November 1, 1993, § 2D1.1(c) was amended to provide that the term “cocaine base” means crack, and forms of cocaine base other than crack are treated as cocaine hydrochloride. Thus, U.S. v. Rodriguez, 980 F.32 1375 (11th Cir. 1992) is no longer good law, even with respect to the statutory mandatory minimum penalties in 21 U.S.C. § 960(b). By allowing the guideline amendment to take effect, Congress gave its imprimatur to the new definition of “cocaine base,” in interpreting the meaning of “cocaine base” in the mandatory minimum statute as well as the guidelines. The court recognized that its holding was contrary to U.S. v. Palacio, 4 F.3d 140 (2nd Cir. 1993), but believed that Palacio was premised upon the incorrect assumption that the amendment was to commentary, rather than the guideline itself. U.S. v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994).
11th Circuit grants government’s petition for mandamus where court failed to apply mandatory minimum. (245) The district court found that defendants’ conspiracy involved more than 1000 kilograms of marijuana. It refused to apply the mandatory minimum applicable under 21 U.S.C. §§841(b)(1) (A)(vii) and 960(b)(1)(G) because the government failed to give defendants pre-trial notice of its intent to seek such penalties. The government initially challenged the sentences under 18 U.S.C. §3742(b)(1). However it later conceded that this was not applicable because the offenses occurred prior to November 1, 1987. The 11th Circuit agreed to treat the ineffective appeal as a petition for mandamus relief, and granted the petition. U.S. v. Alvarez, 735 F.2d 461 (11th Cir. 1984), which held that marijuana quantity was a critical element of the offense, is no longer good law. Drug quantity is an issue for the court to determine at sentencing. Here, the PSR stated that over 1000 kilograms were involved. Therefore, defendants had notice of the quantity involved. Because the sentences imposed were illegal, the government was entitled to mandamus relief. U.S. v. Coy, 19 F.3d 629 (11th Cir. 1994).
11th Circuit upholds refusal to depart below mandatory minimum absent government motion. (245) Defendant claimed that the government’s failure to move for a downward departure for substantial assistance under § 5K1.1 breached his plea agreement. The 11th Circuit upheld the sentence. First, the court had no authority to depart below the mandatory minimum absent a government motion. Judicial review is proper only when there is a substantial showing that the prosecution’s refusal is based on an unconstitutional motive. No such allegation was made here. The government’s failure to present evidence of the extent of defendant’s cooperation, as required by the plea agreement, was troubling. However, defendant’s dispute was over the government’s failure to make a § 5K1.1 motion, not its breach of this provision. Senior Judge Clark dissented, believing that the plea agreement obligated the district judge to examine defendant’s allegations of bad faith. U.S. v. Forney, 9 F.3d 1492 (11th Cir. 1993).
11th Circuit holds 21 U.S.C. §860 does not require doubling mandatory minimum term like §841(b). (245) Under 21 U.S.C. §860, a person who violates §841(a)(1) by possessing with intent to distribute drugs within 1000 feet of an elementary school is subject to twice the maximum punishment authorized by §841(b) for a first offense. The 11th Circuit held that the district court erred in construing §860 as requiring a doubling of the mandatory minimum sentence required by §841(b). Section 860 is silent as to any minimum mandatory penalty with the exception of mandating a minimum sentence of one year imprisonment. U.S. v. Freyre-Lazaro, 3 F.3d 1496 (11th Cir. 1993).
11th Circuit finds post-enactment conduct sufficient to moot ex post facto challenge to mandatory minimum. (245) Defendant was sentenced pursuant to a statutory mandatory minimum drug penalty. He argued that the sentence was improper, because some of the conduct relied upon to determine his drug quantity occurred before the effective date of the statute. The 11th Circuit disagreed, crediting the district court’s statement that it had not relied on the pre-enactment conduct. The district court’s conclusion that post-enactment conduct involved the requisite drug quantity was not clearly erroneous. Accordingly, the 11th Circuit did not address whether pre-enactment conduct could have been considered in determining drug quantity. U.S. v. Adams, 1 F.3d 1566 (11th Cir. 1993).
11th Circuit reaffirms that drug quantity need not be stated in indictment to trigger enhanced penalties. (245) At sentencing, the district court determined that defendant’s offense involved 500 or more grams of cocaine, and therefore a mandatory minimum penalty of 60 months’ imprisonment was applicable. The 11th Circuit upheld the mandatory minimum sentence even though defendant’s indictment did not list drug quantity. The weight or quantity of a controlled substance is not an element of the offense that must be included in a section 841(a)(1) indictment. Because the quantity of drugs triggering the enhanced penalties provided in section 841(b) is relevant only at sentencing, there is no reason that the quantity involved must appear in the indictment if the defendant is otherwise on adequate notice that enhanced penalties are available. Here, the government’s responses to the standing discovery order adequately put the defendants on notice of the quantity of cocaine allegedly involved. U.S. v. Perez, 992 F.2d 295 (11th Cir. 1993).
11th Circuit upholds mandatory minimum sentence despite indictment’s failure to allege drug quantity. (245) Defendant claimed that the statutory minimum sentence of 60 months under 21 U.S.C. section 841(b)(1)(B)(ii) for a drug offense involving over 500 grams of cocaine did not apply to her because the indictment did not allege that she was carrying 500 grams of cocaine. The 11th Circuit, relying upon U.S. v. Cross, 916 F.2d 622 (11th Cir. 1991), rejected this argument. The government need not allege in the indictment or prove at trial the specific amount of drugs involved in an offense in order to use that information to determine the relevant sentence under section 841(b)(1)(B). U.S. v. Milton, 979 F.2d 839 (11th Cir. 1992).
11th Circuit says that indictment alleging 500 grams of cocaine gave notice of mandatory minimum. (245) Finding defendant responsible for more than five kilograms of cocaine, the district court sentenced him to 10 years, the mandatory minimum under 21 U.S.C. section 841(b)(1)(A)(ii). The 11th Circuit rejected defendant’s claim that the indictment provided no notice that the 10 year minimum might apply. Defendant’s indictment specified that the quantity of cocaine involved was 500 grams or more, which for notice purposes, encompassed all amounts over 500 grams. Moreover, defendant received notice of his sentencing prospects during his rearraignment and before entry of his guilty plea. U.S. v. Zerick, 963 F.2d 1487 (11th Cir. 1992).
11th Circuit upholds government’s decision to seek mandatory life sentences for drug offenses. (245) The 11th Circuit rejected defendant’s claim that the district court denied him due process by permitting the government to invoke the procedures of 21 U.S.C. section 851 and seek mandatory life sentences. The mandatory life sentence provisions applicable to defendant appear to be valid, and there was no constitutional problem with the scope of the government’s discretion. There is no material difference between the grant of discretion to seek a downward departure and the grant of discretion here. The government’s decision to proceed against an accused under a particular statute is not reviewable unless the decision is made for an unlawful reason such as the accused’s race. U.S. v. Willis, 956 F.2d 248 (11th Cir. 1992).
11th Circuit upholds mandatory life sentences against statutory and constitutional challenges. (245) Defendant received concurrent life sentences for conspiracy to possess and possessing with intent to distribute at least five kilograms of cocaine. Because he had two prior drug convictions, the life sentences were mandatory under 21 U.S.C. section 841(b)(1)(A). The 11th Circuit rejected defendant’s contention that the mandatory life sentence provisions conflicted with 28 U.S.C. section 994(h), which requires that the should be at or near the statutory maximum. The guidelines accommodate this in section 5G1.1(b) by providing that where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence. The life sentence did not violate the 8th Amendment. The Supreme Court recently rejected a similar argument in Harmelin v. Michigan, 111 S.Ct. 2680 (1991). U.S. v. Willis, 956 F.2d 248 (11th Cir. 1992).
11th Circuit reverses downward departure from mandatory minimum based on age and heart condition. (245) The district court calculated defendant’s guideline range at 78 to 97 months, and sentenced him to 78 months. However, since defendant was involved with in excess of 50 grams of cocaine, the statutory minimum sentence was 10 years. The district court justified a departure from the minimum sentence based on defendant’s advanced age and heart condition. The 11th Circuit reversed, holding that the only authorization for a departure from a mandatory minimum sentence is when the government moves for a departure based upon a defendant’s substantial assistance. This was not such a case. U.S. v. Hall, 943 F.2d 39 (11th Cir. 1991).
11th Circuit finds mandatory minimum sentence does not violate due process. (245) 18 U.S.C. § 924(c)(1) requires that an individual convicted of using a firearm during a drug trafficking offense or crime of violence receive a five year sentence. Defendant contended that this violated due process by depriving him of the right to receive an individualized sentence. The 11th Circuit rejected this argument, noting that a defendant who commits a non-capital offense generally has no right to receive an individualized sentence. The court also found that a mandatory sentence was neither arbitrary nor capricious, since the use of weapons during a drug trafficking offense or crime of violence increases the likelihood of harm to innocent persons. U.S. v. Grinnell, 915 F.2d 667 (11th Cir. 1990).
11th Circuit holds that defendant need not know the particular drug involved to receive mandatory minimum sentence. (245) During the trial the district court correctly instructed the jury that defendant’s knowledge that he was carrying some controlled substance would be sufficient, without his knowing exactly what drug he had. The district court imposed the mandatory minimum sentence for cocaine. On appeal, the 11th Circuit held “that a defendant need not be found to know the particular drug involved in order to receive a mandatory sentence based on the kind of drug under § 841(b)(1).” The court also noted that a defendant need not know the quantity of drug involved in the offense in order to be subject to a mandatory minimum sentence under § 841(b)(1). U.S. v. Gomez, 905 F.2d 1513 (11th Cir. 1990).
11th Circuit holds substantial assistance provision is not inconsistent with minimum mandatory sentences. (245) The Southern District Court of Florida held that 18 U.S.C. § 3553(e), which allows a judge to sentence below a minimum mandatory sentence to reflect a defendant’s substantial assistance in the investigation of another is not irreconcilably inconsistent with the anti-drug abuse act’s minimum mandatory sentences. Enabling a judge to grant this benefit is not an irrational means of promoting effective prosecution of high level drug offenders. These high level prosecutions are enhanced by inducing the cooperation of lower level offenders. U.S. v. Severich, 676 F.Supp. 1209 (S.D.Fla. 1989), affirmed, 872 F.2d 434 (11th Cir. 1989).
D.C. Circuit says retroactive crack amendment does not apply to defendant sentenced to statutory minimum. (245) Defendant was convicted of crack cocaine charges. His guideline range was 135-168 months, but, based on his prior convictions, the district court found that he was subject to a statutory minimum sentence of 240 months. In 2008, defendant moved to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on recent guideline amendments which retroactively lowered the base offense level under § 2D1.1 for crack cocaine offenses. The D.C. Circuit joined the other circuits in holding that § 3582(c)(2)—which refers to sentences “based on a guideline range subsequently lowered by the Sentencing Commission”—applies only to a sentence that is determined by a guideline range. Because defendant was sentenced to the mandatory minimum in 21 U.S.C. § 841(b)(1)(A)(iii), his sentence was not based on a guideline range, and he was ineligible for relief under § 3582 (c)(2). U.S. v. Cook, 594 F.3d 883 (D.C. Cir. 2010).
D.C. Circuit holds government gave proper notice of enhanced sentence under § 851. (245) Defendant argued that the government failed to provide him with notice under 21 U.S.C. § 851(a)(1) of its intent to seek an enhanced sentence based on his prior drug convictions. The D.C. Circuit held that the government complied with § 851(a) by filing a notice about four months before trial. Although defendant claimed he never received personal notice of the enhancement information, he did not deny that his lawyer was properly served, which is all § 851 requires. The district court did fail to inform defendant that failure to challenge his prior convictions would constitute a waiver of his right to challenge the convictions. But the error was harmless because defendant offered no basis for his claims that the prior convictions were unconstitutional. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit holds mandatory life provision in § 841(b)(1)(A) applies to conspiracy convictions. (245) Defendant was convicted of drug conspiracy under 21 U.S.C. § 846, which says that any person convicted of conspiracy shall be subject to the same penalty as the drug offenses that were the object of the conspiracy. Defendant’s underlying offenses were possessing and distributing five kilograms of cocaine, in violation of 21 U.S.C. § 841. That statute provides for a mandatory life sentence for those defendant with two or more prior felony drug convictions. The D.C. Circuit held that the mandatory life sentence in § 841(b)(1)(A) applies to a conviction for conspiracy. The law that defendant violated, § 846, clearly states that a violator shall be punished as provided in § 841. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit says prosecutor made admission of personal ignorance rather than concession. (245) Defendant and his girlfriend pled guilty to distributing 50 grams or more of cocaine base. The court found that the girlfriend satisfied the five criteria for the “safety valve” in § 5C1.2 and 18 U.S.C. § 3553(f) and sentenced her below the mandatory minimum of 120 months. Defendant filed a memorandum asking the judge to do the same for him. The government filed an opposition memo because defendant did not cooperate with authorities and lied about his true identity. However, when the judge later asked whether defendant had satisfied § 3553(f)(5), the prosecutor (who had not signed the plea agreement or filed the sentencing memo) said “I don’t know.” The judge then sentenced defendant to the mandatory minimum 120 months. The D.C. Circuit held that the court properly denied “safety valve” protection to defendant. The prosecutor’s statement was not a concession by the government, but merely an admission of personal ignorance. The government, in its sentencing memoranda, expressed in the strongest possible terms that defendant had been neither truthful nor cooperative. U.S. v. DeJesus‑Gaul, 73 F.3d 395 (D.C. Cir. 1996).
D.C. Circuit holds that mandatory life sentence for drug offense is not cruel and unusual punishment. (245) The first defendant had 15 prior convictions; more than two were drug felonies. He received, under 21 U.S.C. § 841(b), the mandatory minimum of life imprisonment for his drug convictions. The second defendant had three prior felony drug convictions, and also received a mandatory life sentence for his instant drug convictions. The D.C. Circuit held that the mandatory life sentences were not cruel and unusual punishment. The Supreme Court has upheld a life sentence imposed on a first-time offender convicted of possessing 672 grams of cocaine. Thus, the life sentences imposed on defendants¾recidivists convicted of selling 486 grams of cocaine base—were not cruel or unusual. U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995).
D.C. Circuit says mandatory sentences are not cruel and unusual. (245) Defendants helped others cook cocaine powder into cocaine base. One was subject to a 20-year mandatory minimum and the other was subject to a 10-year mandatory minimum. The district court found § 841(b)’s mandatory sentencing requirements cruel and unusual as to these defendants, and sentenced them using the sentencing guidelines for powder cocaine. The D.C. Circuit reversed, holding that the mandatory minimum sentences did not violate the Eighth Amendment. No sort of government misconduct brought about the mandatory penalties for defendants. Defendants willingly manufactured crack cocaine for their co-conspirators. The DEA agents did nothing whatever improper with respect to them, nor did the prosecutor. The fact that defendants were drug addicts did not make the sentences “cruel.” Although the Eighth Amendment forbids punishing a drug addict merely for the status of being an addict, it is not unconstitutional to punish an addict for committing other crimes, even the crime of possessing drugs to feed his own habit. U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995).
D.C. Circuit holds attempt to possess PCP with intent to distribute was prior felony conviction. (245) The government argued that, based on defendant’s prior conviction in D.C. Superior Court for attempted possession of PCP with intent to distribute, the district court erred by refusing to impose the 10-year mandatory minimum prescribed for repeat drug offenders under 21 U.S.C. § 841(b)(1)(B). The D.C. Circuit agreed. An attempt to possess with intent to distribute a controlled substance is a federal crime under 21 U.S.C. § 846. Moreover, § 841(b)(1)(B) applies to felony drug convictions under D.C. law. The crime was a felony since it was punishable by a prison term exceeding one year. U.S. v. Budd, 23 F.3d 442 (D.C. Cir. 1994).
D.C. Circuit rejects double jeopardy challenge to use of prior convictions to enhance sentence. (245) Defendant received an enhanced sentence under 21 U.S.C. section 841(b)(1) and as a career offender under the guidelines because of his two prior felony drug convictions. The D.C. Circuit rejected defendant’s claim that these enhancements violated the double jeopardy clause. The Supreme Court has held that the sentence as a habitual criminal is not to be viewed as either a new jeopardy or an additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one. U.S. v. Garrett, 959 F.2d 1005 (D.C. Cir. 1992).
D.C. Circuit upholds use of prior convictions to enhance under both 21 U.S.C. 841(b)(1)(B) and the guidelines. (245) The base offense level for a career offender is determined with reference to the maximum term of imprisonment authorized for the offense of conviction. The term of imprisonment authorized by 21 U.S.C. 841(b)(1)(B) is increased from a range of five to 40 years to a range of 10 years to life if a defendant has one or more prior drug convictions. Defendant was classified as a career offender. In determining the maximum term of imprisonment, the district court considered defendant’s two prior felony drug convictions and concluded that life imprisonment was the maximum term. Accordingly, defendant received an offense level of 37. The D.C. Circuit rejected defendant’s claim that it was error to use his prior drug convictions to calculate both his sentence under 21 U.S.C. 841(b)(1)(B) and his base offense level and criminal history category. The court rejected defendant’s contention that the relevant maximum statutory sentence should be the maximum for a defendant with no prior drug convictions. U.S. v. Garrett, 959 F.2d 1005 (D.C. Cir. 1992).
D.C. Circuit upholds use of state conviction committed at age 17 to increase mandatory minimum sentence. (245) The D.C. Circuit upheld the district court’s determination that defendant’s prior state drug conviction, committed when he was 17 years old, qualified as a “felony” for purposes of increasing defendant’s mandatory minimum sentence under section 841. Since under applicable state law defendant’s age did not preclude his conviction as a felon, he retained that status for purposes of section 841. Application note 3 to guideline section 4B1.2, which defines a prior felony conviction as a prior adult conviction, was not applicable, since this is not a guidelines calculation issue. The mandatory minimum is 10 years without reference to the guidelines. U.S. v. Clark, 956 F.2d 1176 (D.C. Cir. 1992).
D.C. Circuit holds using amended drug guideline violated ex post facto clause. (245) Defendant was convicted of possession of more than five grams of crack cocaine. The version of section 2D2.1 in effect at the time defendant committed his offense provided for a sentence of zero to six months’ imprisonment. However, 21 U.S.C. section 844(a), in effect when defendant committed his offense, mandated a minimum sentence of 5 years for possessing more than five grams of cocaine base. Defendant received a 63-month sentence based upon the amended version of section 2D2.1 in effect at the time he was sentenced. The D.C. Circuit ruled that the application of the amended version of section 2D2.1 violated the ex post facto clause because it effected substantive changes which increased defendant’s sentence. Section 5G1.1(b) provides that where a mandatory minimum sentence is greater than the maximum of the applicable guideline range, the mandatory minimum is the guideline sentence. Thus, defendant should have received the mandatory minimum 60 month sentence. U.S. v. Green, 952 F.2d 414 (D.C. Cir. 1991).
D.C. Circuit upholds mandatory minimum sentence and guidelines against constitutional challenges. (245) Defendant argued that the application of a mandatory minimum sentence deprived him of due process and equal protection, since there is no opportunity to depart downward even though this was his first offense. The D.C. Circuit summarily rejected this argument, finding the mandatory minimum sentence a valid exercise of legislative prerogative. Defendant also contended that the provision permitting a downward departure from a mandatory minimum based on a defendant’s assistance to the government was unconstitutionally narrow, since it is the only method to obtain a downward departure from a mandatory minimum but it is unavailable to a defendant who is unable to help the authorities. The D.C. Circuit rejected this argument, finding that the public interest in obtaining valuable information provided a reasonable basis for drawing this distinction. U.S. v. Broxton, 926 F.2d 1180 (D.C. Cir. 1991).
District judge condemns mandatory minimum sentencing scheme. (245) Defendant pled guilty to a single count charging him with possession with intent to distribute approximately 680.7 grams of crack cocaine. District Judge Spencer Letts departed downward from a guideline range of 151-188 months to the mandatory minimum sentence of 10 years. In addition to justifying the downward departure on several grounds, Judge Letts also condemned the mandatory sentencing scheme as “barbaric.” Judge Letts noted that although the mandatory minimum scheme had been upheld against constitutional challenges, it has created injustice because the sentences are determined without considering the particular defendant. U.S. v. Patillo, 817 F.Supp. 839 (C.D. Cal. 1993).
New York District Court holds career offender guidelines did not consider gun use enhancements under 924(c). (245) Defendant was subject to a statutory minimum sentence of 15 years for possession of a firearm by a felon, plus 25 years for two counts of using a firearm during a violent crime. He was also classified as a career offender, with a guideline range of 47 to 52 years. Without the career offender enhancement, his guideline range would have been 92 to 115 months. The District Court for the Southern District of New York found that the guidelines did not adequately take into account the mandatory minimum sentences in 18 U.S.C. § 924(c) for using a firearm during a violent crime. The court found “no indication” that the Sentencing Commission “contemplated enhancing a sentence under both the career offender guideline and § 924(c).” Accordingly, the court departed downward and sentenced defendant to 40 years, the sentence which would have applied in the absence of the career criminal provisions. U.S. v. Bernier, 758 F.Supp. 195 (S.D.N.Y. 1991).
Pennsylvania District Court holds that guidelines permit dismissal of counts pursuant to pleas in minimum mandatory sentence cases. (245) The defendant was charged with various drug related offenses. In exchange for dismissal of the conspiracy and distribution counts (involving 30 kilograms of cocaine), the defendant pled guilty to owning and operating a room for the purpose of storing and manufacturing drugs. The court held that the acceptance of the agreement would not undermine the purposes of uniform sentencing because the sentence for the offense of conviction was upwardly enhanced to 60 months to reflect the seriousness of the defendant’s actual conduct. The fact that the dismissed counts contained minimum mandatory sentences of 10 years did not prohibit the court from accepting the plea. Section 6B1.2(a) anticipated and provided for this situation in just this manner. U.S. v. Restrepo, 698 F.Supp. 563 (E.D. Pa. 1988).
Article favors relevant conduct concepts in computing mandatory minimums. (245) Catherine Goodwin, Asst. General Counsel, Administrative Office of the Courts, points out that a number of circuits have endorsed the use of relevant conduct concepts to determine not only the guideline sentence but also the statutory mandatory minimum penalty as well. These cases are U.S. v. Jones, 965 F.2d 1507 (8th Cir. 1992); U.S. v. Martinez, 987 F.2d 920 (2d Cir. 1993); U.S. v. Irvin, 2 F.3d 72 (4th Cir. 1993); U.S. v. Young, 997 F.2d 1204 (7th Cir. 1993); U.S. v. Becerra, 992 F.2d 960 (9th Cir. 1993); and U.S. v. Evans, 970 F.2d 663 (10th Cir. 1992). The author says the advantages of this approach are twofold: it harmonizes the guideline and statutory sentence determinations, and it generates sentences more directly related to each defendant’s culpability. Catherine M. Goodwin, Looking at the Law–Determining Mandatory Minimum Penalties in Drug Conspiracy Cases, 59 Fed. Probation, 74 (1995).
Article explores attitudes of judges and Congress toward mandatory minimums. (245) Professors Marc Miller and Daniel J. Freed note that while both the judiciary and the Sentencing Commission oppose mandatory minimum sentences, members of Congress still support such penalties. The authors argue that this difference in opinion results from the differing perspectives of judges, who see offenders individually, and legislators, who focus instead on general deterrence and incapacitation. They offer several principles that could make mandatory-minimum statutes more acceptable to the judiciary and the Sentencing Commission, focusing primarily on the need to tailor such statutes to minimize those offenders who are unintentionally swept within the statutes’ ambit. Marc Miller, and Daniel J. Freed, The Chasm Between the Judiciary and Congress over Mandatory Minimum Sentences, 6 Fed. Sent. Rptr. 59-62 (1993).
Justice Department says 2/3 of low level drug offenders received mandatory minimum sentences. (245) On February 4, 1994, the Office of the Deputy Attorney General issued a report on mandatory minimum sentencing and nonviolent drug offenders for review and consideration by the Attorney General. The study found that a substantial number of drug law violators who are in the custody of the Bureau of Prisons can be classified as “low level.” Based on the study sample, two thirds of low level drug offenders currently in federal prisons received mandatory minimum sentences. The average sentence was 81.5 months. The report said that the research literature shows, at least for the low level defendants, “a short prison sentence is just as likely to deter them from future offending as a long prison sentence.” The report says that since it costs $20,000 per year to house a federal offender, “[s]ome might argue that these resources could be used more efficiently to promote other criminal justice needs such as providing more money for additional police in our communities.” U.S. Department of Justice, An Analysis of Nonviolent Drug Offenders with Minimal Criminal Histories, reprinted in 54 Crim. L. Rptr. 2101 (Feb. 16, 1994).
Article assesses mandatory minimums. (245) Stephen J. Schulhofer describes the mandatory minimum sentencing statutes of principal concern in the federal system and identifies their apparent goals. He also analyzes their structure and how they are enforced. Mandatories appear to be achieving the goals of increasing the severity of punishment and the willingness of defendants to provide useful information. However, mandatories appear to be evaded in 30 to 50 percent of the cases in which they should apply, undercutting the benefits of severity and leading to unequal treatment of similarly-situated defendants. The author concludes that the benefits of mandatories could be largely achieved through the sentencing guidelines while avoiding mandatories’ untoward effects. Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L. Rev. 199-222 (1993).
Article traces history of mandatory minimums in drug cases. (245) William W. Wilkins, Jr., Phyllis J. Newton, and John R. Steer trace the history of mandatory minimums as a method of dealing with drug crimes. In 1956, Congress attempted lengthy minimum sentences for most drug importation and distribution offenses, but it rejected this approach in 1970, finding that mandatory minimums had not yielded the expected deterrent impact. However, little more than a decade later, Congress again turned to mandatory minimums as a way to control the drug problem. The authors argue that Congress should use finely calibrated guidelines rather than mandatory minimums. William W. Wilkins, Jr. Phyllis J. Newton, and John R. Steer, Competing Sentencing Policies in a “War on Drugs” Era, 28 Wake Forest L. Rev. 305-27 (1993).
Article proposes increased departure powers under mandatory minimums. (245) Gary T. Lowenthal traces the rise of current mandatory punishment legislation. Mandatory minimums interact with determinate sentencing schemes like the federal sentencing guidelines in a way that may destroy the consistency and proportionality in punishment that determinate sentencing seeks to achieve. They also result in harsh penalties for those exercising their constitutional right to trial. In light of Harmelin v. Michigan, 111 S. Ct. 2680 (1991), relief likely must come from legislatures, not courts. Though repeal of mandatory minimums may be politically unpalatable, legislatures should consider authorizing trial courts to depart from the minimums when substantial and compelling mitigating circumstances exist. Additionally, the severity of most of the laws should be decreased. Gary T. Lowenthal, Mandatory Sentencing Laws — Undermining the Effectiveness of Determinate Sentencing Reform, 81 Calif. L. Rev. 61 (1993).
Article argues that Commission’s critique of mandatory minimums applies equally to guidelines themselves. (245) The Sentencing Commission’s Report, “Mandatory Minimum Penalties in the Federal Criminal Justice System,” criticizes mandatory minimum sentencing statutes for shifting discretion from judges to prosecutors, increasing judicial workload, punishing less culpable offenders as seriously as more culpable offenders, and providing incentives for judges and prosecutors to avoid the mandatory sentences. Professor Michael Tonry lauds the Commission’s research design and critique of the effect of mandatory minimum sentences. But Tonry disputes the Commission’s claim that the guidelines themselves escape identical criticism. He argues that limitations on departures and other factors have led the guidelines to have the same vices and suggests that key features of the guidelines be reconsidered with an eye toward greater flexibility. Michael Tonry, Mandatory Minimum Penalties and the U.S. Sentencing Commission’s “Mandatory Guidelines,” 4 Fed. Sent. Rptr. 129-33 (1991).
Article responds to Commission’s criticism of mandatory minimums. (245) Robert S. Mueller, III, Assistant Attorney General in charge of the Criminal Division of the Department of Justice, questions the conclusions drawn in the Sentencing Commission’s 1991 report on mandatory minimum penalties. The Commission had concluded that prosecutors were failing to enforce the minimums in cases where they seemed appropriate, generating disparity among defendants. Mueller concludes that the Commission’s study inaccurately classifies cases as circumventions of the mandatory minimums. For example, it assumes that the mandatory minimum should be charged when the charge would be “reasonable,” rather than applying the Department’s more stringent requirement that the count be “readily provable.” Moreover, the Commission lacked access to substantial assistance motions filed under seal for the protection of the defendant. Robert S. Mueller, III, Mandatory Minimum Sentencing, 4 Fed. Sent. Rptr. 230-33 (1992).
Article reviews issues raised by mandatory minimum for firearm use. (245) Under a special enhancement statute, Congress has dictated a five-year mandatory minimum for anyone convicted of using or carrying a firearm “during and in relation to” any crime of violence or drug trafficking crime. Michael J. Riordan summarizes the legislative history of the provision and some of the case law construing it. Special attention is devoted to the relationship that must exist between a firearm and a drug offense to support conviction, focusing on the purpose for which the gun is possessed and the question of constructive possession. The author also discussed application of the enhancement to multiple underlying offenses, aiding and abetting theories, and constitutional challenges to the provision, concluding that the statute is likely constitutional. Michael J. Riordan, Using a Firearm during and in Relation to a Drug Trafficking Crime: Defining the Elements of the Mandatory Sentencing Provision of 18 USC 924(c)(1), 30 Duquesne L. Rev. 39-60 (1991).