§240 Drug Offenses, Generally
(U.S.S.G. §2D)
8th Circuit upholds drug guidelines sentence despite defendant’s abusive childhood. (240)(742) Defendant was convicted of drug trafficking. The district court sentenced him to 480 months, within the guidelines range. The Eighth Circuit rejected defendant’s claim that he should have received a downward variance because he had an abusive childhood. The district court properly weighed defendant’s mitigating evidence before imposing its sentence. U.S. v. Griggs, __ F.4th __ (8th Cir. Nov. 21, 2022) No. 21-3816.
6th Circuit affirms within-guidelines drug sentence despite lower sentences for codefendants. (240)(742) Defendant was convicted of drug trafficking and was sentenced at the low end of the guideline range—292 months. He argued that his sentence was substantively unreasonable because it was the equivalent of a life sentence and his coconspirators received lesser sentences. The Sixth Circuit found any disparity “well grounded” because the coconspirators were not similarly situated to defendant. U.S. v. Mosley, __ F.4th __ (6th Cir. Nov. 18, 2022) No. 21-1136.
7th Circuit upholds guidelines drug sentence despite claim that court failed to consider mitigation. (240) (742) Defendant pleaded guilty to drug trafficking. He was sentenced at the middle of the guidelines range—120 months. Defendant argued that the district court failed to consider his history of abuse and substance abuse. The Seventh Circuit found that the district court had considered defendant’s history and properly noted that defendant had received relatively short sentences in the past. U.S. v. Ramirez, __ F.4th __ (7th Cir. Nov. 8, 2022) No. 21-2587.
1st Circuit affirms within-guidelines drug/firearms sentence, finding offense was not over-emphasized. (240)(330)(740) Defendant pleaded guilty to drug and firearms offenses, and was sentenced within the guidelines to 168 months. Defendant argued the district court placed too much weight on the circumstances of the case and not enough weight on his history and characteristics. The First Circuit affirmed, finding that the sentencing rationale was defensible because the district court weighed the applicable factors and the offense was serious. U.S. v. Mujero-Vargas, __ F.4th __ (1st Cir. Feb. 2, 2022) No. 19-1941.
6th Circuit says court need not “ritualistically” recite § 3553(a) factors in sentencing within guidelines. (240)(740) Defendant was convicted of drug trafficking. His guidelines range was 360 months to life, and the district court sentenced him to 360 months. Defendant argued that the district court did not consider mitigating circumstances. The Sixth Circuit held that the district court considered defendant’s “off the charts” criminal history and was not required to ritualistically recite the factors under 18 U.S.C. § 3553(a). U.S. v. Hall, __ F.4th __ (6th Cir. Feb. 2, 2022) No. 20-4128.
8th Circuit rules home can be “premises” for drug distribution enhancement. (240) Defendant pleaded guilty to drug trafficking. At sentencing, the district court added two levels under § 2D1.1(b)(12) because defendant used a “premises” for distributing a controlled substance. Defendant had more than six kilos of meth in his basement and more than 100 grams in a closet. Some of the meth in the basement was being dried, and defendant did not allow his girlfriend or her children into the basement. The Eighth Circuit held that a family home can be a “premises” for purposes of the enhancement even if it is also used as a residence. U.S. v. Hernandez-Lopez, __ F.4th __ (8th Cir. Jan. 31, 2022) No. 20-3468.
6th Circuit upholds increase for death or serious bodily harm against vagueness challenge. (135)(240) Defendant was convicted of conspiracy to distribute drugs, and the jury found under 21 U.S.C. § 841(b)(1)(C) that death or serious bodily injury resulted from the drug distribution—resulting in an enhanced sentence. The Sixth Circuit ruled that the death-or-serious-bodily-injury language was not unconstitutionally vague, holding that it contained a clear actus reus and mens rea. Nor was the statute vague for allowing the district court to impose an enhanced sentence or fine “or both.” U.S. v. Sadler, __ F.4th __ (6th Cir. Jan. 21, 2022) No. 19-2777.
1st Circuit affirms upward drug-firearms variance where court explained reasons. (240)(330)(741) Defendant pleaded to drug and firearm offenses. His guidelines range was 78 to 84 months, but the court varied upward to 144 months. The First Circuit affirmed, noting that the district court articulated its reasons and addressed defendant’s age, dependents, education level, personal habits, prior employment, lack of a criminal record, and kindred considerations. U.S. v. Merced-García, __ F.4th __ (1st Cir. Jan. 25, 2022) No. 19-2033.
6th Circuit does not require blood toxicology test to establish death or serious bodily injury. (240) Defendant was convicted of conspiracy to distribute drugs. The jury found under 21 U.S.C. § 841(b)(1)(C) that death or serious bodily injury was a but-for cause of the drug distribution, and therefore defendant was subject to an enhanced sentence. The Sixth Circuit held that the death-or-serious-bodily-injury requirement does not require that the prosecution conduct a blood toxicology test of the victims, as long as other evidence establishes that defendant’s drugs caused the death or serious bodily injury. U.S. v. Sadler, __ F.4th __ (6th Cir. Jan. 21, 2022) No. 19-2777.
6th Circuit finds death or serious bodily injury enhancement was supported by evidence. (240) Defendant was convicted of drug conspiracy, and the jury found under 21 U.S.C. § 841(b)(1)(C) that defendant’s drugs were a but-for cause of the death or serious bodily injury. As a result, defendant received an enhanced sentence. The Sixth Circuit upheld the increase, noting that the victims called the proper number to get drugs and responded to Narcan. The jury also received expert testimony that defendant’s drugs caused the overdoses, and the victims were found with drug paraphernalia around them. U.S. v. Sadler, __ F.4th __ (6th Cir. Jan. 21, 2022) No. 19-2777.
4th Circuit says upward variance for fentanyl death does not require “but-for” causation. (240) Defendant pleaded guilty to distributing fentanyl, and the district court varied upward to 120 months, relying in part on the fact that the distribution resulted in a death. The Fourth Circuit ruled that it was not necessary for the court to find that the fentanyl was a “but-for” cause of death. The court may vary upward, as opposed to departing, without finding that the drugs were a but-for cause of death. U.S. v. McKinnie, __ F.4th __ (4th Cir. Dec. 27, 2021) No. 19-4888.
4th Circuit affirms upward variance for distributing fentanyl. (240)(741) Defendant’s guideline range for distributing fentanyl was 21 to 27 months, but the court varied upward to 120 months. The court relied on the fact that the fentanyl distribution resulted in a death, the prior leniency defendant had received despite his criminal history, and the need to deter other fentanyl dealers. The Fourth Circuit found these reasons adequately supported the variance. U.S. v. McKinnie, __ F.4th __ (4th Cir. Dec. 27, 2021) No. 19-4888.
6th Circuit upholds drug guidelines sentence where court considered mitigating factors. (240)(742) Defendant was convicted of drug trafficking. His guidelines range was 360 months to life, and the district court sentenced him to 360 months. Defendant argued that the court failed to consider his lack of a positive role model, his mental health issues, and other mitigating factors. The Sixth Circuit affirmed, noting that the district court explained that it had reviewed the presentence report, which covered those issues, and found that defendant’s criminal history outweighed those factors. U.S. v. Hall, __ F.4th __ (6th Cir. Dec. 16, 2021) No. 20-4128.
2d Circuit says special skill not needed to qualify as boat pilot. (240) Defendants were found on a boat containing cocaine bound for the U.S. At sentencing, the court added two levels under § 2D1.1(b)(3) for being pilots or navigators of the boat. Defendants admitted that they “steered” the boat but denied that they had any special skills. The Second Circuit ruled that no special skill is necessary for the pilot or navigator enhancement. U.S. v. Solis, __ F.4th __ (2d Cir. Nov. 17, 2021) No. 19-4208.
2d Circuit upholds boat pilots’ below-guidelines sentences as not too high. (240)(741) Defendants were convicted of piloting a boat bound for the U.S. that contained cocaine. The guideline range was 262 to 327 months, but the court varied downward to 240 months and 180 months. The Second Circuit rejected their claims that these sentences were greater than necessary and improperly weighed the 18 U.S.C. § 3553(a) factors, ruling that the sentences were in the “range of permissible decisions,” and the court properly weighed the § 3553(a) factors, as well as defendants’ prior records. U.S. v. Solis, __ F.4th __ (2d Cir. Nov. 17, 2021) No. 19-4208.
7th Circuit affirms increase for “maintaining a drug premises” even though property was also a residence. (240) At sentencing for methamphetamine trafficking, the court found that defendant used his residence to store drugs and added two levels under § 2D1.1(b)(12) for maintaining a premises for drug distribution. The Seventh Circuit affirmed, ruling that maintaining a premises for drug distribution need not be the sole purpose of the premises and defendant admitted that he stored drugs there. U.S. v. Zamudio, __ F.4th __ (7th Cir. Nov. 18, 2021) No. 20-3016.
8th Circuit finds no intent is necessary for enhancement for dealing drugs near a protected location. (240) At defendant’s sentencing for drug trafficking, the district court added two levels under § 2D1.2(a)(1) for dealing drugs near a protected location. The Eighth Circuit affirmed, ruling that a defendant need not intend to be near a protected location when dealing drugs for the enhancement to apply. U.S. v. Campbell-Martin, __ F.4th __ (8th Cir. Nov. 8, 2021) No. 20-3054.
8th Circuit affirms despite unsupported statement that drugs contained fentanyl. (240)(770) Defendant pleaded guilty to heroin distribution. At sentencing, the district court mentioned that the heroin contained fentanyl, even though the government did not present evidence that the heroin that defendant sold contained fentanyl. Nevertheless, on appeal, the Eighth Circuit found that the district court did not rely at sentencing on its unsupported statement that the heroin contained fentanyl, and affirmed the sentence. U.S. v. Wise, __ F.4th __ (8th Cir. Nov. 5, 2021) No. 20-3152.
8th Circuit upholds upward variance in drug case despite mitigating factors. (240)(741) Defendant pleaded guilty to distributing heroin. His guidelines range was 188 to 235 months, but the court varied upward to 300 months. Defendant argued that the district court attributed insufficient weight to his family history and addiction. The Eighth Circuit found that the district court had appropriately weighed the factors in 18 U.S.C. § 3553(a) and affirmed the sentence. U.S. v. Wise, __ F.4th __ (8th Cir. Nov. 5, 2021) No. 20-3152.
5th Circuit upholds within-guidelines meth sentence despite mitigating factors. (240)(742) Defendant pleaded guilty to methamphetamine trafficking. His guidelines range was 240 months because of the statutory maximum, and the district court sentenced him to 240 months. Defendant argued that the court failed to give adequate weight to character letters submitted on defendant’s behalf, his childhood, his renunciation of his gang affiliation, his decision to raise children not biologically related to him, and the district court’s treatment of the methamphetamine as “ice,” because of its purity. The Fifth Circuit found the sentence reasonable because of defendant’s criminal history and the size of the methamphetamine conspiracy. U.S. v. Rebulloza, __ F.4th __ (5th Cir. Nov. 2, 2021) No. 20-11027.
9th Circuit reverses for denying sentence reduction without considering developments since sentencing. (197)(240) After guideline amendment 782 reduced drug guidelines, defendant moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court found defendant eligible, but denied the motion, indicating that it could not consider the fact that defendant was no longer subject to a 20-year mandatory minimum after U.S. v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019). The Ninth Circuit reversed, holding that in ruling on a motion for a reduced sentence, the court must consider intervening statutory and judicial developments after the sentence was imposed, including changes to mandatory minimum sentences. These changes are relevant to the 18 U.S.C. § 3553(a) factors. U.S. v. Lizarraras-Chacon, __ F.4th __ (9th Cir. Sept. 23, 2021) No. 20-30001.
10th Circuit upholds within-guidelines drug sentence despite codefendant’s lower sentence. (240)(742) Defendant was convicted of drug trafficking, and the district court sentenced him to 175 months—the top of the guidelines range. Defendant argued that his sentence was disparate to a 21-month sentence imposed on a codefendant. The Tenth Circuit found no error, ruling that defendant was not similarly situated, because the codefendant cooperated with the government and did not go to trial. U.S. v. Tennison, __ F.4th __ (10th Cir. Sept. 14, 2021) No. 20-3033.
6th Circuit holds defendant accountable for “maintaining premises,” based on relevant conduct. (240) (275) Defendant was convicted of drug trafficking. At sentencing, the district court added two levels under § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. The district court found that even though defendant did not personally maintain the premises where drugs were distributed, defendant’s accomplices did so. The Sixth Circuit affirmed, ruling that a defendant can be liable for maintaining a premises if defendant’s coconspirators undertook the action. U.S. v. Rich, __ F.4th __ (6th Cir. Sept. 13, 2021) No. 18-2268.
9th Circuit affirms refusal to reduce firearms sentence despite drug amendment. (197)(240) In 2005, defendant was sentenced for drug-trafficking and firearms. After Amendment 782 retroactively reduced the drug guidelines, the district court reduced defendant’s sentence by a few months, but added that even assuming that defendant’s firearm conviction was affected by Amendment 782, it would not reduce the sentence further. On appeal, the Ninth Circuit ruled that because the district court assumed that Amendment 782 affected defendant’s firearm conviction, any error was harmless. U.S. v. Wilson, __ F.4th __ (9th Cir. Aug. 11, 2021) No. 20-50015.
8th Circuit rejects nationwide statistics as basis to reverse drug sentence. (240)(741) Defendant’s drug sentencing range was 360 months to life, but the court varied downward to 204 months. Nevertheless, defendant argued that his sentence was disparate when compared to similarly situated defendants in his case and nationwide. The Eighth Circuit found that defendant’s codefendants were not similarly situated and ruled that comparison with national statistics provides no basis for reversing a sentence. U.S. v. Hill, __ F.4th __ (8th Cir. Aug. 10, 2021) No. 20-1536.
8th Circuit affirms within-guidelines drug sentence despite mitigating evidence. (240)(742) Defendant pled guilty to drug-trafficking and firearms offenses and was sentenced to 110 months—the middle of the guidelines range. On appeal, he argued that the district court improperly weighed the factors in 18 U.S.C. § 3553(a) and did not consider his mitigating evidence. The Eighth Circuit affirmed, finding that the district court properly weighed the factors, and adequately considered defendant’s difficult childhood, his children, and his future employment prospects. U.S. v. Merret, __ F.4th __ (8th Cir. Aug. 9, 2021) No. 20-1368.
1st Circuit upholds below-guidelines drug sentence as not too high. (240)(741) Defendant pleaded guilty to drug trafficking. His guidelines range was 151 to 188 months. The district court varied downward to 130 months. Defendant argued that his sentence was substantively unreasonable because it exceeded 120 months. The First Circuit rejected this claim, finding that the district court properly weighed the aggravating and mitigating factors in arriving at its sentence. U.S. v. deJesús, __ F.3d __ (1st Cir. July 9, 2021) No. 19-1445.
5th Circuit affirms upward variance based on death caused by defendant’s drug distribution. (240)(741) Defendant pleaded guilty to drug trafficking. His guidelines range was 120 to 121 months, but the court varied upward to 240 months because defendant failed to call for help for many hours when his girlfriend had a drug overdose. On appeal, defendant argued that the judge failed to find that he caused his girlfriend’s death. The Fifth Circuit held that it was sufficient for the district court to rely on the fact that defendant’s distribution of drugs caused the girlfriend’s death. U.S. v. Hudgens, __ F.3d __ (5th Cir. July 16, 2021) No. 19-50628.
11th Circuit agrees that gun was possessed in connection with drug offense, despite permit. (240) Defendant pleaded guilty to drug trafficking. At sentencing, the district court added two levels under § 2D1.1(b)(1) because officers found a revolver in defendant’s truck from which the drugs were seized. The Eleventh Circuit affirmed, ruling that the district court could reasonably conclude that the firearm was to protect the drugs. Defendant’s permit for the gun did not change that conclusion. U.S. v. Carrasquillo, __ F.3d __ (11th Cir. July 14, 2021) No. 19-14143.
8th Circuit upholds downward variance where court said it would impose same sentence regardless. (240) (740) Defendant was convicted of drug trafficking. His guidelines range was 262 to 327 months, but the court varied downward to 240 months. On appeal, defendant argued that the district court gave significant weight to facts not supported by the record. The Eighth Circuit found it unnecessary to resolve the issue because the district court stated that it would impose the same sentence regardless of the alleged false statements. U.S. v. Brown, __ F.3d __ (8th Cir. June 18, 2021) No. 20-1512.
8th Circuit affirms downward variance despite lower sentence for drug coconspirator. (240)(741) Defendant was convicted of drug trafficking. His guidelines range was 210 to 262 months, but the court varied downward to 190 months. Defendant argued that his sentence was still too high, because a coconspirator was sentenced to only 150 months. The Eighth Circuit rejected the argument, finding that the coconspirator was not similarly situated because defendant had a gun and went to trial and therefore did not accept responsibility. U.S. v. Bandstra, __ F.3d __ (8th Cir. June 7, 2021) No. 20-1616.
6th Circuit says defendant need not “foresee” death resulting from drug trafficking. (240) Defendant was convicted of drug trafficking resulting in the death of another, in violation of 21 U.S.C. § 841(b)(1)(C). The statute requires proof that defendant knowingly distributed a controlled substance that was a but-for cause of death. Defendant challenged his sentence on the ground that the district court should have instructed the jury that it had to find that it was foreseeable that the drugs would cause death. The Sixth Circuit held that foreseeability is not required for the death requirement. U.S. v. Williams, __ F.3d __ (6th Cir. May 26, 2021) No. 18-6343.
7th Circuit rejects disparity claim where codefendant was older and already serving sentence. (240)(716) Defendants were convicted of drug trafficking. Their guidelines range was 360 months to life but the court varied downward to 262 months and 250 months. The defendant who received 262 months claimed his sentence was unfairly disparate because his codefendant had been found under § 3B1.1 to be a “leader or organizer.” The Seventh Circuit found no unwarranted disparity because the other defendant was older and was already serving a 12-year sentence. U.S. v. Gibson, __ F.3d __ (7th Cir. Apr. 30, 2021) No. 20-1236.
8th Circuit says downward variance was not too high even though meth defendant never touched drugs. (240)(690) Defendant pleaded guilty to conspiracy to distribute methamphetamine based on her involvement in a 20-pound methamphetamine deal. Her guidelines range was 210 to 262 months, but the district court varied downward to 157 months. Defendant argued that her sentence was substantively unreasonable because she never touched any methamphetamine or cash, turned herself in, and only engaged in the deal to help her brother, who was incarcerated. The Eighth Circuit found the sentence reasonable because it was in full compliance with the guidelines and was consistent with defendant’s characteristics and the nature of the offense. U.S. v. Rios, __ F.3d __ (8th Cir. Apr. 28, 2021) No. 20-1146.
1st Circuit upholds below-guidelines sentence against claim that it was disparate. (240)(741) Defendant was convicted by a jury of drug trafficking conspiracy. His guidelines range was 235 to 293 months, and the district court departed downward to 224 months. He argued that his sentence was disparate compared to his coconspirators because they received shorter sentences despite having a greater role in importing the drugs. The First Circuit found the disparity “problematic,” but upheld defendant’s sentence because his coconspirators pleaded guilty and defendant never requested a downward variance based on disparity. U.S. v. García-Sierra, __ F.3d __ (1st Cir. Apr. 7, 2021) No. 16-2503.
4th Circuit reverses for failure to vary downward where defendant was an opioid addict. (240)(680) (741) Defendant pleaded guilty to distributing opioids. She had a severe opioid addiction, but the district court made no allowance for the amount of opioids she had ingested herself. The district court sentenced her at the bottom of the guidelines range, 210 months. In a 2-1 opinion written by Chief Judge Gregory, the Fourth Circuit reversed for failure to consider disparities that may be caused by defendant’s sentence or to fully consider the history and circumstances of the defendant in relation to her sentence. The majority noted that defendant’s sentence was significantly longer than the average sentence given to an opioid defendant and ruled that defendant’s addiction and disparity in her sentence merited a downward variance. Judge Quattlebaum dissented. U.S. v. Freeman, __ F.3d __ (4th Cir. Mar. 30, 2021) No. 19-4104.
1st Circuit finds lower sentence for white codefendant was not racially motivated. (240)(330)(741) Defendant pled guilty to drug and firearms offenses. His guidelines range was 147 to 162 months, but the court varied upward to 198 months. Defendant, who is black, argued that his sentence was substantively unreasonable because his white codefendant had received a lesser sentence. The First Circuit held that defendant had presented “no hint” of racial bias and that he was asking the court to infer racial bias. The court found that defendant’s history of violent conduct more than accounted for the difference in sentences. U.S. v. Farmer, __ F.3d __ (1st Cir. Feb. 16, 2021) No. 19-1603.
8th Circuit upholds “criminal livelihood” finding that defendant’s primary occupation was drugs. (240) At defendant’s sentencing for drug trafficking, the court added two levels under § 2D1.1(b)(16)(E) for criminal activity engaged in as a livelihood. Defendant argued that the district court erred because he earned money from his clothing line, his music career, and gambling. The Eighth Circuit found, by defendant’s own admissions, that he did not make much money from his side businesses and that selling drugs was his primary occupation. U.S. v. Ford, __ F.3d __ (8th Cir. Feb. 17, 2021) No. 20-1573.
8th Circuit affirms drug dealer’s guidelines sentence despite mitigating factors. (240)(742) The district court sentenced defendant to 168 months, at the bottom of his drug guidelines range. It rejected his argument for a downward variance based on mental health, drug addiction, and lack of youthful guidance. The Eighth Circuit affirmed, finding that the district court “thoroughly discussed” the applicable factors, and the sentence was not substantively unreasonable. U.S. v. Ford, __ F.3d __ (8th Cir. Feb. 17, 2021) No. 20-1573.
11th Circuit finds no plain error in failing to specify drug in conspiracy conviction. (240) Defendant was convicted of conspiracy to distribute a Schedule II, III, or IV drug and seven counts of distributing a Schedule III drug. He was sentenced to ten years for the Schedule III offenses, and concurrent ten years for the conspiracy count. For the first time on appeal, defendant argued that he should have been sentenced to no more than five years on the conspiracy count because the jury did not specify what Schedule was involved, and Schedule IV has a maximum penalty of five years. Reviewing for plain error, the Eleventh Circuit found that because defendant had been found guilty of distributing a Schedule III drug, the jury could infer that defendant’s conspiracy conviction also involved a Schedule III drug, so his ten-year sentence did not affect his substantial rights. U.S. v. Abovyan, __ F.3d __ (11th Cir. Feb. 22, 2021) No. 19-10676.
11th Circuit affirms guidelines sentence where court did not consider unrelated offenses. (240)(742) At trial, defendant was convicted of several drug trafficking offenses. His guidelines range was 210 to 262 months, and the district court sentenced him to 262 months. Defendant argued that the sentence was substantively unreasonable because the district court had considered unrelated offenses. The Eleventh Circuit disagreed, noting that the district court said it presumed defendant was innocent on one unrelated charge, and that the sentence at the high end of the range was based on the quantity of drugs. U.S. v. Joseph, __ F.3d __ (11th Cir. Oct. 27, 2020) No. 19-11198.
5th Circuit declines to re-weigh factors for within-guidelines sentence. (240)(742) Defendant tried to import marijuana into the U.S. At sentencing, the district court imposed a within-guidelines sentence of 27 months. Defendant argued that his sentence was substantively unreasonable because he had a clean record, cooperated with authorities, and maintained employment while on pretrial release. The Fifth Circuit found that the district court had considered the applicable factors, and it was not appropriate for the panel to reweigh the factors on appeal. U.S. v. Hinojosa-Almance, __ F.3d __ (5th Cir. Oct 7, 2020) No. 19-50942.
11th Circuit affirms within-guidelines sentence imposed on doctor. (240)(742) Defendant, a physician, was convicted of distributing controlled substances by over-prescribing drugs. The district court called him “an arrogant monster,” but sentenced him to the low end of the guideline range–235 months. Defendant argued that his sentence was substantively unreasonable because the district court failed to consider mitigating evidence. On appeal, the Eleventh Circuit found no error, ruling that the district court had considered the mitigating evidence. U.S. v. Gayden, __ F.3d __ (11th Cir. Oct. 9, 2020) No. 18-14182.
8th Circuit affirms increase for maintaining a premises, even though defendant’s name was not on lease. (240) At sentencing for drug trafficking, the district court added two levels under § 2D1.1(b)(12) for maintaining a premises for the distribution of marijuana. Defendant sold drugs from the home he shared with his girlfriend, and police found marijuana packaged in bulk and for individual sale. Defendant noted that his name was not on the lease and he did not control access to the home. Nevertheless, the Eighth Circuit affirmed, finding no clear error in applying the enhancement. U.S. v. Jefferson, __ F.3d __ (8th Cir. Sept. 17, 2020) No. 19-3159.
2d Circuit holds court need not consider disparities among individual defendants. (240)(741) Defendant pleaded guilty to drug trafficking and was sentenced to 90 months. Defendant argued that the sentence was unreasonable because his codefendants received sentences of only two years and 48 months, respectively. The Second Circuit found this argument a “non-starter,” because it is settled law that the district court is not required to consider disparities among individual defendants. In any event, the district court did consider the disparities between defendant and his codefendants but concluded that defendant was the leader of the conspiracy. U.S. v. Bryant, __ F.3d __ (2d Cir. Sept. 24, 2020) No. 18-3569.
11th Circuit affirms within-guidelines drug sentences despite failure to mention individual histories. (240) (742) Defendants were convicted of drug trafficking and received sentences in the guidelines range. Defendants argued that the district court looked only to the seriousness of their offense and the need to deter others and did not consider their individual histories. The Eleventh Circuit held that although the district court did not mention defendants’ individual histories, it did consider them, as shown by the district court’s familiarity with the presentence report, defendants’ allocutions, and defendant’s arguments. U.S v. Cabezas-Montano, __ F.3d __ (11th Cir. Jan. 30, 2020) No. 17-14294.
8th Circuit says below-guidelines sentence was not too high despite mitigating factors. (240)(742) Defendant was convicted of drug trafficking for running a wide-spread heroin trafficking organization. His guidelines range was 292 to 365 months, and the district court sentenced him to 365 months. Defendant argued that he should have been sentenced to the statutory minimum of 240 months because his parents abused him and were engaged in criminal activity and because his prior convictions were 20 years old. The Eighth Circuit found that the district court reasonably concluded that the aggravating factors outweighed the mitigating factors. U.S. v. Outlaw, __ F.3d __ (8th Cir. Jan. 8, 2020) No. 18-2958.
1st Circuit finds “but-for” causation is not required for increase based on fentanyl death. (240)(721) Defendant pleaded guilty to knowingly supplying fentanyl to a man who died as a result of shooting it up. At sentencing, the district court found that the government had not proved that the fentanyl independently caused the man’s death, but found that it was a meaningful cause of death. Accordingly, it departed upward under § 5K2.1 from the guidelines range of 8 to 14 months to a sentence of 60 months. Treating the sentence as an upward variance, not a departure, the First Circuit held that but-for causation was not required, and upheld the sentence. U.S. v. Heindenstrom, __ F.3d __ (1st Cir. Dec. 30, 2019) No. 18-2187.
8th Circuit upholds below-guidelines meth sentence as not too high. (240)(741) Defendant pleaded guilty to methamphetamine trafficking. His guidelines range was 262 to 327 months, but the district court varied downward to 200 months, to avoid disparity with similarly situated defendants. Defendant argued that the sentence should have been even lower because of his criminal history, his good employment history, and his supportive family. The Eighth Circuit found no error, noting that the court considered these mitigating factors, but put more weight on defendant’s weapons, the amount of methamphetamine involved, the fact that drug transactions had frequently put the public at risk, and that one drug transaction had occurred when defendant’s child was present. U.S. v. Escalante, __ F.3d __ (8th Cir. Dec. 26, 2019) No. 18-3033.
8th Circuit affirms within-guidelines meth sentence against disparity claim. (240)(742) Defendant pleaded guilty to distributing methamphetamine, and he was sentenced to 188 months—the low end of his guidelines range,. He argued that his sentence was unreasonable because his codefendant, the ringleader, was sentenced to only 12 months more. The Eighth Circuit found no error, noting that the district court had considered defendant’s mitigating arguments, including the disparity with his codefendant’s sentence. U.S. v. Garcia, __ F.3d __ (8th Cir. Dec. 26, 2019) No. 18-3040.
3d Circuit reverses and holds that methylone is not an analogue to MDMA. (240) Defendant possessed methylone, a controlled substance. Because the guidelines do not list methylone, the district court analogized it to methylenedioxymethamphetamine, which is also known as MDMA or “ecstasy.” Using that analogy, the court converted one kilogram of methylone to 500 kilograms of marijuana to determine defendant’s offense level. Citing a DEA report, the Third Circuit found that methylone is about half as potent as MDMA. It remanded to allow the district court to impose a new sentence that took the properties of methylone into account. U.S. v. Sepling, __ F.3d __ (3d Cir. Nov 29, 2019) No. 17-3724.
6th Circuit upholds below-guidelines oxycodone sentence against claim that it was disparate. (240)(741) Defendant, a physician, wrote prescriptions for oxycodone that were not medically necessary. The district court sentenced him to a below-guidelines sentence. On appeal, defendant argued that his sentence was substantively unreasonable because it was disparate compared to his codefendants. The Sixth Circuit noted that defendant’s codefendants had pleaded guilty and upheld the sentence. U.S. v. Godofsky, __ F.3d __ (6th Cir. Nov. 26, 2019) No. 18-5450.
8th Circuit allows First Step Act motion to be denied without a hearing. (240) In 2008, defendant pleaded guilty to possession with intent to distribute more than five grams of crack and received a 20-year sentence. Later, in the Fair Sentencing Act, Congress increased the threshold for a mandatory minimum sentence for crack offenses from 5 grams to 28 grams. The First Step Act gave district courts discretion to reduce the sentence for crack defendants who were not eligible for a Fair Sentencing Act reduction. Defendant sought a reduced sentence, but the district court denied his motion without a hearing on the ground that a reduced sentence would not comport with the applicable factors. The Eighth Circuit affirmed, holding that district courts are not required to reduce a sentence under the First Step Act, and are not required to hold a hearing. U.S. v. Williams, __ F.3d __ (8th Cir. Nov. 26, 2019) No. 19-1753.
8th Circuit affirms denial of First Step Act motion despite post-offense rehabilitation. (240) Defendant moved for a reduction in sentence under the First Step Act, citing his nine years in prison without a disciplinary infraction and his completion of several personal betterment and educational programs and the disparity between his sentence of 20 years and other crack offenders. The district court denied the motion and the Eighth Circuit affirmed. The panel noted that district courts are not required to grant a reduction for post-offense rehabilitation and that the court had considered the applicable factors in denying the motion. U.S. v. Williams, __ F.3d __ (8th Cir. Nov. 26, 2019) No. 19-1753.
5th Circuit allows “importation” increase even if defendant did not know drugs were imported. (240) At sentencing for methamphetamine trafficking, the district court enhanced defendant’s offense level by two under § 2D1.1(b)(5) because the drugs had been imported. The drugs were imported from Mexico, but defendant argued that he was not aware that the drugs had been imported and noted that the importation occurred before his involvement in the conspiracy. The Fifth Circuit found these contentions were foreclosed by precedent. The defendant need not know that the drugs were imported and the drugs need not be imported during defendant’s involvement in the conspiracy. U.S. v. Kearby, __ F.3d __ (5th Cir. Nov. 25, 2019) No. 18-10874.
D.C. Circuit says First Step Act did not apply to already-sentenced defendant. (240) Defendant was convicted of possessing heroin. Because he had a prior state cocaine conviction, he was subject to a 20-year mandatory minimum sentence. The district court sentenced him to 240 months. While his appeal was pending, Congress passed the First Step Act, which meant that defendant’s prior state drug conviction no longer triggered a 20-year mandatory minimum. However, the section of the Act that reduced defendant’s sentence stated that it did not apply to sentences imposed before it was enacted. The D.C. Circuit held that the First Step Act was inapplicable to defendant because he had been sentenced before its enactment. Young v. U.S., __ F.3d __ (D.C. Cir. Nov. 22, 2019) No. 18-3048.
8th Circuit says downward variance in meth case was not too high despite defendant’s upbringing. (240) (741) Defendant pleaded guilty to distributing 27 grams of methamphetamine with a guidelines range of 262 to 327 months. He sought a downward variance based on his difficult upbringing, noting that he had been verbally and physically abused and that between the ages of 12 and 16, he had been in 17 group home facilities. The district court considered defendant’s upbringing, but found that his recent drug dealing and criminal history outweighed it. Nevertheless, the court varied downward to 223 months. On appeal, defendant argued that the district court failed to weigh his upbringing heavily enough. The Eighth Circuit found the sentence was not unreasonable. U.S. v. Fitzpatrick, __ F.3d __ (8th Cir. Nov. 21, 2019) No. 18-3312.
4th Circuit says First Step Act motion may be based on 18 U.S.C. § 3582(c)(1)(B). (192)(240) Serving a sentence for crack cocaine, defendant filed a motion for a reduced sentence under the First Step Act, which allows some defendants to obtain a reduced sentence. The district court denied the motion in part because it found that defendant should have based his motion on 18 U.S.C. § 3582(c)(2), which provides for a reduction in sentence based on a retroactive amendment to the sentencing guidelines. On appeal, the Fourth Circuit held that the district court erred in relying on § 3582(c)(2). Instead, modification under the First Step Act is permitted by § 3582(c)(1)(B), which allows a court to modify a term of imprisonment to the extent “expressly permitted by statute.” U.S. v. Wirsing, __ F.3d __ (4th Cir. Nov. 20, 2019) No. 19-6381.
4th Circuit finds crack defendant eligible for sentence reduction under First Step Act. (240) In 2008, defendant pleaded guilty to possession with intent to distribute 16 grams of crack. At the time, 21 U.S.C. § 841(b)(1)(B)) required 5 to 40 years for offenses involving 5 to 50 grams of crack. The district court found that defendant responsible for 60 grams of crack, and sentenced him to 188 months. Thereafter, the Fair Sentencing Act lowered the maximum penalty for offenses involving less than 28 grams to 20 years with no mandatory minimum. Defendant moved to reduce his sentence under the First Step Act, but the district court ruled that his offense was not a “covered offense.” The Fourth Circuit reversed, holding that defendant’s crack offense was a “covered offense” because Congress had lowered the penalties for it in the Fair Sentencing Act. The court remanded for the district court to exercise its discretion to reduce defendant’s sentence. U.S. v. Wirsing, __ F.3d __ (4th Cir. Nov. 20, 2019) No. 19-6381.
2d Circuit finds within-guidelines drug sentence reasonable despite defendant’s difficult upbringing. (240)(742) Defendant pleaded guilty to running a large drug-trafficking organization. The guidelines range was 121 to 151 months, and the court sentenced defendant to 151 months. Defendant argued that the court failed to factor in his difficult upbringing and that his criminal history category of II overstated his criminal history. The Second Circuit found defendant’s upbringing was “searing,” but the sentence was not unreasonable. The district court reasonably concluded that the harm defendant had caused to the community outweighed his criminal history. U.S. v. Albarran, __ F.3d __ (2d Cir. Nov. 15, 2019) No. 17-2018.
6th Circuit upholds below-guidelines sentence despite claim of limited role in conspiracy. (240)(741) Defendant was convicted of drug-trafficking. Her guidelines range was 121 to 151 months, and the district court sentenced her to 96 months. Defendant argued that her sentence was too high because of her role in the conspiracy and “public sentiment about lengthy sentences.” The Sixth Circuit found no abuse of discretion because the district court had considered all applicable factors, including defendant’s role in the conspiracy. U.S. v. Smith-Kilpatrick, __ F.3d __ (6th Cir. Nov. 7, 2019) No. 18-1671.
2d Circuit bases “criminal livelihood” increase on only six months of conduct. (240) Guideline section 2D1.1(b)(16)(E) provides a two-level enhancement if defendant has an aggravating role under § 3B1.1 and the offense is “part of a pattern of criminal conduct engaged in as a livelihood.” Defendant was convicted of drug trafficking, and at sentencing, the district court enhanced his sentence under § 2D1.1(b)(16)(E). The Second Circuit held that six months is sufficient to constitute a pattern of criminal conduct. The court also affirmed the district court’s finding that drug trafficking was defendant’s primary occupation and that he made sufficient funds from it. U.S. v. Pristell, __ F.3d __ (2d Cir. Oct. 22, 2019) No. 19-1308.
8th Circuit finds disparity within district does not make sentence substantively unreasonable. (240)(742) Defendant pleaded guilty to trafficking in ice methamphetamine in the Northern District of Iowa. The guidelines set a higher offense level for ice than for a mixture containing methamphetamine. Defendant sought a downward variance because the other judges in the Northern District of Iowa have disagreed with the ice guideline, and sentence ice defendants as if they had been convicted of a mixture of methamphetamine. The district court refused to vary downward and sentenced defendant within the guidelines range. The Eighth Circuit found defendant’s contention that he should have received a downward variance “frivolous” and held that the sentence was not substantively unreasonable. U.S. v. Heim, __ F.3d __ (8th Cir. October 18, 2019) No. 18-2987.
7th Circuit affirms below-guidelines sentence despite claim that it was disparate. (240)(741) Defendant pleaded guilty to drug trafficking for distributing drugs in the Indianapolis area. His guidelines range was 262 to 327 months, but the varied downward to 225 months. On appeal, defendant argued that this sentence was too high because it was higher than the average sentence for drug dealing in the Southern District of Indiana. The Seventh Circuit found the district court had reasonably weighed the applicable factors and the sentence was not unreasonable. U.S. v. De La Torre, __ F.3d __ (7th Cir. Oct. 10, 2019) No. 18-2009.
6th Circuit says chemicals for manufacturing methamphetamine created risk to minor. (240)(251) Defendant was arrested while he was traveling in a car with a seven-year-old child, in possession of methamphetamine manufacturing materials. Defendant pleaded guilty to attempting to manufacture methamphetamine. At sentencing, an expert testified that the chemicals were hazardous. The district court enhanced defendant’s offense level by six under § 2D1.1(b)(14)(d) because his offense posed a “substantial risk of harm to the life of a minor.” The Sixth Circuit upheld the enhancement, finding no clear error in the district court’s factual findings supporting the enhancement and that the manner in which the chemicals were stored caused a “grave risk of explosion.” U.S. v. Owen, __ F.3d __ (6th Cir. Oct. 10, 2019) No. 18-5739.
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.
1st Circuit upholds use of cross-reference to murder for driver of car. (210)(240) At defendant’s sentencing for drug and RICO offenses. The district court applied the cross-reference in § 2D1.1(d)(1) to increase defendant’s offense level because defendant participated in a killing that would constitute murder under federal law. Defendant argued that the cross-reference did not apply because he had only driven the car from which the killing occurred. The First Circuit held that the district court had not erred in applying the cross-reference because the evidence showed that defendant knew that the murder would be committed when he agreed to drive the car. U.S. v. Rodriguez-Torres, __ F.3d __ (1st Cir. Sept. 18, 2019) No. 16-1507.
3d Circuit finds First Step Act inapplicable to sentence imposed before passage of Act. (240) Defendant was convicted of drug trafficking. He had two prior convictions for “felony drug offenses,” and because of those prior convictions received a life sentence under 21 U.S.C § 841(b)(1)(A). After defendant’s sentencing but before his appeal was decided, Congress passed the First Step Act, which, among other provisions, lowered the mandatory sentence from life to 25 years. The Act provided that it applied to offenses committed before the Act was passed if the offense had not been sentenced. The Third Circuit held that the First Step Act did not apply to because defendant was sentenced before the Act was passed. U.S. v. Aviles, __ F.3d __ (3d Cir. Sept. 12, 2019) No. 18-2967.
5th Circuit upholds enhancement for using family to deliver drugs. (240) Defendant led a drug-trafficking ring. He twice pleaded and argued with his stepson to deliver drugs for him. On one occasion, to get the stepson to come to defendant’s house to deliver drugs, he told the stepson that he needed to take his wife to a cancer treatment appointment. The stepson initially refused to participate in any illegal activity, but later delivered drugs for defendant. Defendant pleaded guilty to drug trafficking. At sentencing, the court enhanced defendant’s offense level by two under § 2D1.1(b)(15)(A) because defendant had “used fear, impulse, friendship, affection, or some combination thereof” to involve his stepson in the offense. U.S. v. Torres-Magana. __ F.3d __ (5th Cir. Sept. 10, 2019) No. 18-50056.
1st Circuit upholds enhancement for being captain of vessel, even if duties were shared. (240) Defendant was convicted of transporting drugs on a boat bound for the U.S. At sentencing, the district court enhanced defendant’s offense level by two under § 2D1.1(b)(3)(C) because he was the captain of the vessel. At the time of defendant’s arrest, he admitted being the captain, but later said that he shared the captain’s duties with others on the vessel. At sentencing, the government endorsed defendant’s view by arguing that given the nature of the vessel, one person could be a captain one minute and another person could be a captain the next. The First Circuit found no clear error in the district court’s decision to enhance defendant’s sentence. U.S. v. Dávila-Reyes, __ F.3d __ (1st Cir. Sept. 3, 2019) No. 16-2089.
4th Circuit reverses upward variance for lack of evidence of out-of-state drug source. (240) Defendant pleaded guilty to drug trafficking for selling 1.2 grams of methamphetamine to an informant. The guideline range was 30 to 37 months, but the district court imposed a 10-year sentence because of the “interstate” nature of defendant’s drug selling. The district court stated that dealers buy drugs out of state, in places like Detroit, and bring them in-state to sell, which was a “serious problem.” The Fourth Circuit reversed, finding that the record showed a bias against people from out of state and did not support the court’s comments about bringing drugs from out of state. The case was remanded for sentencing before a different judge. U.S. v. McCall, __ F.3d __ (4th Cir. Aug. 12, 2019) No. 18-4143.
7th Circuit finds below-guidelines sentence was not too high. (240)(741) Defendant pleaded guilty to drug trafficking. His guidelines range was 151 to 188 months, but the district court varied down to 120 months. Defendant argued that his sentence was substantively unreasonable because it was too long. The Seventh Circuit found that defendant had given no good reason to overturn his sentence and upheld it. U.S. v. Brown, __ F.3d __ (7th Cir. Aug. 7, 2019) No. 18-2644.
6th Circuit upholds departure for selling fentanyl to opioid addict. (240)(721) Defendant sold an opioid addict what the addict thought was heroin but turned out to be fentanyl. The addict had a stroke and went into a coma. He suffered liver, kidney, and heart failure, and it was six months before he regained day-to-day functioning. Defendant pleaded guilty to distributing fentanyl. At sentencing, the district court enhanced defendant’s sentence under § 5K2.2 because defendant had caused the opioid addict to suffer significant physical injury. On appeal, defendant argued that the opioid addict had made his own choice to engage in street drugs and defendant should not be liable for this choice. The Sixth Circuit found that read as a whole § 5K2.2 rebutted his contention by making defendant’s intent dispositive, not the victim’s intent. U.S. v. Gillespie, __ F.3d __ (6th Cir. July 10, 2019) No. 18-5894.
10th Circuit affirms increase for threatening violence in drug case. (240) At defendant’s sentencing for drug trafficking, the district court enhanced his offense level under § 2D1.1(b)(2) because he “used violence, made a credible threat to use violence, or directed the use of violence.” The enhancement was based on a video in which defendant held an AK-47, said he had other weapons, and threatened to shoot any intruders on his property. Defendant argued that the enhancement should not apply because he made the threat in response to an attack on his home, not as part of his drug-trafficking crime. The Tenth Circuit found no abuse of discretion in imposing this enhancement. U.S. v. Griffith, __ F.3d __ (10th Cir. June 24, 2019) No. 17-1365.
8th Circuit upholds drug sentence for distribution of fentanyl-laced heroin. (240)(741) At defendant’s sentencing for drug-trafficking crimes that arose in connection with his sale of fentanyl-laced heroin, his guidelines range was 41 to 51 months. The presentence report estimated that fentanyl was 50 to 100 times more potent than morphine. The district court varied upward by 18 months based on the seriousness of the offense. The Eighth Circuit found that the seriousness of the offense is a factor under 18 U.S.C. § 3553(a) and that the district court had not erred. U.S. v. Edmonds, __ F.3d __ (8th Cir. Apr. 15, 2019) No. 18-2776.
10th Circuit finds evidence shows residence used for drug transactions. (240) Defendant rented a house at which the DEA observed actions that appeared to be drug related. Defendant later admitted that he was involved in two drug ventures using the house, and both transactions used the house to unload a substantial quantity of drugs and to deliver currency. Defendant pleaded guilty to drug trafficking. At sentencing, the district court enhanced his offense level by two under § 2D1.1(b)(12) for maintaining a premise for the purpose of distributing a controlled substance. The district court found that the residence was not defendant’s living place and that defendant had not maintained the house to put up relatives. Reviewing for clear error, the Tenth Circuit held that the district court had not erred in rejecting defendant’s claim that another coconspirator maintained the house. U.S. v. Lozano, __ F.3d __ (10th Cir. Apr. 19, 2019) No. 18-1031.
1st Circuit says within-guidelines drug sentence was adequately explained. (240)(742) Defendant pleaded guilty to drug offenses pursuant to a plea agreement that set his offense level at 25, after defendant received enhancements for firearms and leadership. At sentencing, the district court found that defendant had an offense level of 27, and sentenced him to 25 months more than recommended by the plea agreement. This was within the guidelines range, but greater than several codefendants’ sentences. The First Circuit found no error, noting that the district court discussed the factors in 18 U.S.C. § 3553(a), including defendant’s age, dependents, employment, education, health, upbringing, history, and likelihood of recidivism. U.S. v. González-Barbosa, __ F.3d __ (1st Cir. Apr. 8, 2019) No. 17-1688.
8th Circuit upholds 75-month upward departure for drug offense that resulted in death. (240)(721) Defendant distributed heroin to a 19-year-old woman who died as a result of ingesting the heroin. Defendant pleaded guilty to distribution of heroin to a person under the age of 21. Defendant’s guidelines range was 15 to 21 months, but the district court sentenced him to 96 months, because defendant “basically had a pharmacy” and the guidelines range did not take into account the victim’s death. The court said it was sentencing defendant to the maximum allowed by the federal involuntary manslaughter statute. The Eighth Circuit held that the district court supplied adequate reasons for departing upward from the guidelines range. U.S. v. Reif, __ F.3d __ (8th Cir. Apr. 11, 2019) No. 17-3729.
9th Circuit reverses sentence that was based solely on defendant’s admission that drugs were “reasonably foreseeable.” (120)(240)(275)(780) Defendant pleaded guilty to conspiracy to import methamphetamine. At the plea colloquy, defendant admitted that he conspired to import a controlled substance and that it was reasonably foreseeable that the substance was methamphetamine. He explained that he thought he was importing marijuana. At sentencing, the district court applied the guidelines for methamphetamine. The Ninth Circuit held that the Sixth Amendment barred sentencing defendant under the methamphetamine guidelines based only on his admission that it was reasonably foreseeable that the drug he imported was methamphetamine. Accordingly, the district court erred in imposing a sentence that exceeded the five-year statutory maximum for a conspiracy to import marijuana. U.S. v. Jauregui, __ F.3d __ (9th Cir. Mar. 22, 2019) No. 16-50429.
7th Circuit finds below-guidelines drug sentence was not too high despite calculation error. (240)(741) The district court calculated defendant’s sentencing range for drug-trafficking offenses as 210 to 262 months, before varying downward to imposed a sentence of 192 months. On appeal, defendant argued that his below-guidelines sentence was too high. The Seventh Circuit found the sentence was reasonable even though the district court erred in calculating the sentencing range. The panel found that the district court’s sentence was reasonable “regardless of whether the sentence falls above, within, or below” the guidelines range. The district court properly considered the applicable factors. U.S. v. Salgado, __ F.3d __ (7th Cir. Mar. 6, 2019) No. 18-2194.
5th Circuit says defendant did not have possessory interest in storage room used to manufacture drugs. (240) Defendant and Laghari planned to manufacture thousands of Xanax pills, stockpile them, sell them for bitcoin through an internet shop, and split the profits. Defendant bought a pill press and shipped it to Laghari. They used a locked storage room in a tire shop Laghari’s father owned to produce at least 10,000 Xanax tablets over a period of two to three weeks. Defendant pleaded guilty to drug charges, and received an enhancement under § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. The Fifth Circuit reversed. There was no evidence that defendant could have gained or did gain “unrestricted access to the premises” through Laghari. The storage room was owned by Laghari’s father. While Laghari had his own key and could use the room without his father’s permission, defendant could not. There was no indication that defendant was able to access the storage room without Laghari’s express permission and physical assistance unlocking the door. U.S. v. Lord, __ F.3d __ (5th Cir. Feb. 15, 2019) No. 17-30486.
8th Circuit upholds “drug premises” increase where smoke shop sold synthetic marijuana. (240) Defendant owned and operated a “smoke shop” that sold “potpourri,” a product containing synthetic marijuana. He was convicted of conspiracy to distribute drug paraphernalia and related financial crimes. He challenged a § 2D1.1(b)(12) enhancement for maintaining a drug premises, contending that it applied to controlled substance offenses, not paraphernalia offenses. The Eighth Circuit upheld the enhancement. Under Note 17 to § 2D1.1, “[m]anufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses.” Here, the evidence showed that the primary use of the smoke shop was to sell potpourri. Defendant admitted that potpourri was in high demand and was more profitable than other items sold at the store. U.S. v. Peithman, __ F.3d __ (8th Cir. Feb. 27, 2019) No. 17-2768.
8th Circuit upholds cross-reference to drug table where misbranded drugs tested positive for controlled substance. (240) Defendant owned and operated a “smoke shop” that sold “potpourri,” a product containing synthetic marijuana. He was convicted of conspiracy to distribute drug paraphernalia and related financial crimes. The Guideline for drug paraphernalia,§ 2D1.7, provides provides a cross-reference in subsection (b) if the offense involved a controlled substance. The district court applied the cross-reference and on appeal, the Eighth Circuit affirmed. Defendant was involved in the sale of misbranded drugs that tested positive for a DEA Schedule I controlled substance. U.S. v. Peithman, __ F.3d __ (8th Cir. Feb. 27, 2019) No. 17-2768.
7th Circuit upholds within-guidelines drug sentence for elderly alien. (240)(741) Defendant pleaded guilty to distributing more than 100 grams of heroin. At sentencing, he claimed that his age of 62, his health, and his deportable status mitigated in favor of a sentence below the guidelines range. The district court rejected these arguments and imposed a sentence of 100 months, at the low-end of the guidelines range. The Seventh Circuit affirmed the district court, finding that none of the factors that defendant advanced should result in a lower sentence. U.S. v. Bustos, __ F.3d __ (7th Cir. Jan. 10, 2019) No. 18-1388.
7th Circuit counts in criminal history, driving with detectable amount of controlled substance. (240)(504) Defendant, convicted of drug trafficking, had a prior conviction under Wisconsin Statutes § 346.63(1)(am) for operating a vehicle with a detectable amount of a restricted controlled substance in his blood. In § 4A1.2(c)(2), the guidelines provide that certain local ordinance violations are not counted in a defendant’s criminal history, but that convictions for driving under the influence and similar offenses are always counted. Defendant argued that his Wisconsin conviction was not similar to driving under the influence and should not be counted. The district court disagreed and assessed one criminal history point. However, it also found that his criminal history score overstated his criminal history and imposed a sentence 60 months below the guidelines range. The Seventh Circuit found that the Wisconsin offense should be counted, rejecting defendant’s argument that the offense has to include as an element that the defendant was impaired or intoxicated while driving a vehicle. U.S. v. Kohl, __ F.3d __ (7th Cir. Dec. 12, 2018) No. 18-2548.
8th Circuit affirms increase for using violence during drug offense. (240) Under § 2D1.1(b)(2), a defendant convicted of a drug-trafficking offense is subject to a two-level increase if the defendant “used violence, made a credible threat to use violence, or directed the use of violence.” In this case, in intercepted phone calls, defendant stated that two coconspirators were working with law enforcement and needed to be assaulted. Defendant stated that one coconspirator should have the life beat out of him and another should have his front teeth knocked out. She later paid another coconspirator to commit the assaults. The Eighth Circuit found that these facts supported the district court’s application of the enhancement under § 2D1.1(b)(2). U.S. v. Lewis-Zubkin, __ F.3d __ (8th Cir. Nov. 6, 2018) No. 17-3411.
Commission increases penalties for fentanyl, cathinones and synthetic cannabinoids (“bath salts”). (240) (252) After a multi-year study, the Commission added a new specific offense characteristic at §2D1.1(b)(13) to provide a 4-level increase for knowingly misrepresenting as another substance a substance containing fentanyl or a fentanyl analogue. The Commission set the marijuana equivalency for fentanyl at 1:2,500, and fentanyl analogues at 1:10,000. The Commission also added synthetic cathinones to the Drug Equivalency Tables, and made one gram of a synthetic cathinone (except a Schedule III, IV, or V substance) equal to 380 grams of marihuana, with a base offense level of 12. Proposed Amendment 3, effective Nov. 1, 2018.
Commission replaces the term “marihuana equivalency” with “converted drug weight.” (240) Because of confusion over the meaning of the term “marijuana equivalency,” the Commission replaced it with the new term “converted drug weight” in the Drug Quantity Table at §2D1.1(c), and changed the title of the “Drug Equivalency Tables” to “Drug Conversion Tables.” In addition, the Commission made technical changes throughout the Guidelines Manual to account for the new term. The Commission said the amendment is not intended as a substantive change. Proposed Amendment 4, effective Nov. 1, 2018.
2nd Circuit upholds “importation” increase for aiding cocaine shipment. (240) Defendant pleaded guilty to conspiring to import five or more kilograms of cocaine. The district court applied a § 2D1.1(b)(15)(C) “importation” enhancement, finding that defendant played an aggravating role in the offense and was “directly involved” in two large shipments of cocaine. The Second Circuit affirmed, rejecting defendant’s argument that he was required either to import the drugs himself or induce another to do so. Note 20(B) to § 2D1.1 says subsection (15)(C)) applies if the defendant is an aider or abettor, and there was no question that defendant aided and abetted the importation of cocaine. He participated directly in transporting hundreds of kilograms of cocaine from South America through Honduras for Mexican drug cartels to smuggle into the United States. U.S. v. Romero, __ F.3d __ (2d Cir. Sept. 20, 2018) No. 17-2894-cr.
10th Circuit affirms increase for using home for sales, warehouse and headquarters for drug distribution. (240) Defendant used his home for drug-related activity. The district court applied a §2D1.1(b)(12) enhancement for maintaining a premises for drug distribution purposes. Defendant argued that he primarily used the premises as his home, and that his drug-related activities were a mere incidental use. Applying a totality of the circumstances evaluation, the Tenth Circuit upheld the enhancement. Distribution quantities of heroin and methamphetamine were found in his home during several police searches. On one occasion, he was found in his vehicle “near his home” with a large quantity of meth, and on another, he was observed selling meth in the parking lot of a local gym. A reasonable inference from this was that he was storing drugs in his home, and distributing them using his car. Defendant’s use of his home for occasional sales, as a safe haven, a warehouse, and a headquarters for drug distribution put him well past the “frequent and substantial” use threshold. U.S. v. Murphy, __ F.3d __ (10th Cir. Aug. 24, 2018) No. 17-5118.
9th Circuit finds coconspirator plea agreements unreliable for sentencing. (240)(770) In U.S. v. Vera, 770 F.3d 1232 (9th Cir. 2014), the Ninth Circuit remanded because it found that defendants’ sentences had been based on unreliable evidence. On remand, the district court relied on defendants’ coconspirators’ plea agreements to determine the quantity of drugs involved in defendants’ offenses. The Ninth Circuit again held that the sentences were based on unreliable evidence. The coconspirators’ plea agreements did not contain statements against penal interest, as that phrase is used in Fed. R. Evid. 804(b)(3), because in the statements on which the district court relied the coconspirators were not acknowledging their own guilt. The court held that co-defendant plea agreements must be corroborated by other evidence. U.S. v. Vera, __ F.3d __ (9th Cir. June 25, 2018) No. 16-50364.
7th Circuit upholds increase for maintaining drug house. (240) The district court applied a two-level enhancement under §2D1.1(b)(12) based on its finding that defendant “maintained” his apartment for distributing drugs. The Seventh Circuit upheld the enhancement. The police seized heroin and methamphetamine from defendant’s garage, and would have found drugs in the apartment itself had defendant not, as he later admitted to police, “flushed anything he had down the toilet when the SWAT team was approaching.” Moreover, in the 12 weeks before the raid, an informant bought drugs from defendant at his apartment four times and spotted additional drugs and drug paraphernalia during each transaction. Given that defendant at the time of his arrest was “primarily living off proceeds from drug sales,” the district court reasonably concluded that he must have stored or sold more quantities of drugs at his apartment than the relatively modest amounts recovered by police. U.S. v. Winfield, 846 F.3d 241 (7th Cir. 2017).
7th Circuit upholds increase for maintaining drug house. (240) Defendant argued that the district court erred in imposing an enhancement for maintaining a drug house, contending that he did not have a possessory interest in the home. The Seventh Circuit affirmed, noting that neither ownership nor a leasehold interest was required. The district court properly found that defendant resided at Andrews’ home. He kept personal items there at least until December 2010, and in a December 2010 jail call to his mother, defendant specifically referred to “stash spots” in Andrews’ home, as well as his car parked at Andrews’s residence. Andrews testified that defendant cut and packaged heroin in her home, although she only witnessed it on one occasion. A December 2010 search of the home yielded a digital scale, a cutting agent, and plastic sandwich baggies with the corners cut out. These tools of the trade were “indicia that drug trafficking was the principal use of the premises.” U.S. v. Thomas, 845 F.3d 824 (7th Cir. 2017).
10th Circuit upholds use of THC as “most closely related” controlled substance. (240) Defendant stipulated to possession of 1,451.7 kilograms of synthetic cannabinoid product, which consisted of the chemicals XLR11 and AB-FUBINACA sprayed onto plant leaves. Under Note 6 to §2D1.1 the court had to determine which listed drug was “most closely related” to those chemicals—marihuana or THC. The “Schedule I Marihuana” table has a marihuana equivalent ratio of 1:1 for marihuana and 1:167 for THC. The district court ruled that THC was the most closely related drug, even though it considered the recommended sentence to be “an anomaly.” It relied on the conclusions of a DEA pharmacologist, the persuasive precedent from other district courts using this conversion rate, and the fact that a different defendant in the case was previously sentenced using THC. The Tenth Circuit affirmed, finding defendant could not show any error was “clear or obvious.” The panel recognized that applying the 1:167 ratio to a product that, by weight, consisted primarily of inert plant matter created an “anomaly, [because of] the severity of the way this conversion rate works.” However, the severity of the conversion rate led the court to vary downward to a sentence that “more closely approximate[d] a marijuana distribution case.” U.S. v. Hurley, 842 F.3d 170 (10th Cir. 2016).
1st Circuit agrees that defendant who relied on GPS to steer boat was ship navigator. (240) Defendant was convicted of violating the Maritime Drug Law Enforcement Act after his vessel was intercepted by U.S. authorities. The district court applied a §2D1.1(b)(3)(C) enhancement for acting “as a pilot, copilot, captain, navigator, flight officer, or any other operation officer” on a vessel carrying controlled substances. The First Circuit agreed that defendant acted as a navigator. Defendant took turns steering the vessel with Coa–Peña, the only other passenger on board. The vessel was traveling from Colombia to the Dominican Republic, and defendant and Coa–Peña “set sail … utilizing Global Positioning Devices.” The vessel was intercepted after 24 hours on the high seas. The district court reasonably concluded that defendant must have been responsible for ensuring that the boat stayed on course for some not insubstantial portion of the trip, reasonably concluding that defendant must have relied on the GPS to keep the boat on course. Unlike on land, defendant could not have been instructed to “[j]ust keep going straight.” The panel rejected defendant’s contention that a person can only qualify as a navigator if he or she knows how to program or adjust a GPS, or other navigational device, and not if he merely relies on it to keep the boat on course. U.S. v. Ford, 839 F.3d 94 (1st Cir. 2016).
4th Circuit reverses where court applied incorrect offense level. (240) Defendant was convicted of drug charges. At sentencing, the court announced that defendant’s offense level was 36. The government responded that it would not object to a downward departure of two levels to reflect upcoming amendments to the Guidelines, and the court agreed to go down those two levels. Thus, defendant’s total offense level should have been 34, which would have yielded a guideline range of 151-188 months. However, the court imposed a 188-month sentence, stating that it was imposing a sentence “at the low end of the range.” In its Statement of Reasons form, the court scored defendant’s total offense level at 36, noting that it sustained one of defendant’s objections to the PSR and used the anticipated Guidelines amendment reduction, but failed to acknowledge that it sustained a second objection. The Fourth Circuit found that it was plain error for the court to sentence defendant under offense level 36 instead of 34. The error affected defendant’s substantial rights, because the court said it intended to sentence defendant at the low end of the range, which was 151, rather than 188, months. U.S. v. Garcia-Lagunas, 835 F.3d 479 (4th Cir. 2016).
3rd Circuit approves stash house enhancement. (240) Defendant pled guilty to drug conspiracy charges, and received a two-level increase under §2D1.1(b)(12) for maintaining a stash house. On appeal, the Third Circuit found no error. Defendant’s argument that he lacked the possessory interest because he was not the owner or renter of the premises was meritless, as was his argument that none of the money used to operate the stash house came from him because it came from the organization’s funds. Undisputed testimony showed that defendant had a direct interest in every dollar that came into the organization, and that Macon, who managed the day-to-day business, had to account to defendant for all revenue and expenditures. In addition to controlling the funds used to rent the properties, defendant played a major role in overseeing the acquisition and operations of the stash houses, even though he lived in another town. U.S. v. Carter, 834 F.3d 259 (8th Cir. 2016).
7th Circuit does not require court to address sentencing manipulation claim. (135)(240)(740) Defendant, a ranking official of a Chicago street gang, pled guilty to distributing a controlled substance, based on his sale of 366.2 grams of crack cocaine to a confidential witness. He argued that the district court erred by failing to address his argument that the government engaged in sentencing manipulation by having its witness purchase, and continue to purchase, crack cocaine from defendant so as to drive up his guideline offense level. The Seventh Circuit noted that the sentencing manipulation argument was not one the district court was required to address, because the circuit does not recognize sentencing manipulation as a valid sentencing argument. See U.S. v. Garcia, 79 F.3d 74 (7th Cir.1996). U.S. v. Blackman, __ F.3d __ (7th Cir. July 29, 2016) No. 15-2003.
6th Circuit upholds using preponderance standard to determine drug quantity. (240)(755) Defendant was convicted of heroin distribution and conspiracy charges, and was sentenced to 78 months. He argued that the district court’s use of the preponderance-of-the-evidence standard in determining the amount of heroin attributable to him violated due process. The Sixth Circuit disagreed, citing U.S. v. Brika, 487 F.3d 450 (6th Cir. 2007), which held that due process did not require a standard higher of proof, even for large enhancements. Such increases should be viewed through the lens of Booker reasonableness rather than due process. The Supreme Court’s decision in Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013), did not call Brika into question. Alleyne held that any fact that increases the mandatory minimum sentence must be submitted to the jury. However, it did not disturb a district court’s authority to impose a sentence within the statutory range. U.S. v. Jones, __ F.3d __ (6th Cir. July 14, 2016) No. 14-1267.
8th Circuit says court properly adopted unobjected-to facts in PSR. (240)(488)(765) Defendant pled guilty to marijuana distribution and conspiracy. He argued on appeal that the district court erred in adopting the PSR’s drug quantity calculation because it double counted two witnesses’ cocaine estimates. The Eighth Circuit held that the court did not err in adopting the unobjected-to facts in the PSR. “A fact in a PSR to which the defendant has not specifically objected is a fact admitted by the defendant.” Defendant argued that this did not apply because the district court had threatened to deny him credit for acceptance of responsibility if he persisted with his objections to the PSR. The Eighth Circuit rejected this argument, finding that the court did not “threaten” defendant, but simply warned him of the consequence of pursuing frivolous guideline objections. U.S. v. Trevino, __ F.3d __ (8th Cir. July 14, 2016) No. 15-1534.
7th Circuit approves stash house increase based on use of co-defendant’s apartment. (240) Defendant pled guilty to distributing heroin. The district court added two levels under §2D1.1(b)(12) for maintaining a premises—co-defendant Williams’s apartment—to distribute drugs. The Seventh Circuit upheld the enhancement. There was ample evidence that defendant controlled activities at Williams’s apartment and even controlled Williams herself: defendant packaged drugs at the apartment, he directed customers to go there to buy drugs, he ordered Williams to retrieve drugs from hiding places in the apartment where he stored the drugs, he told Williams how to dispense heroin to customers when he was not present, and he dealt drugs in the apartment on at least 50 occasions during just a few months. The fact that Williams used the apartment as a family dwelling place for her and her son did not matter. The commentary directs courts to consider the defendant’s primary or principal uses for the premises. U.S. v. Evans, __ F.3d __ (7th Cir. June 20, 2016) No. 15-2287.
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, en banc, holds that binding plea agreement is likely “based on” Guidelines. (192)(240) In U.S. v. Austin, 676 F.3d 924 (9th Cir. 2012), the Ninth Circuit held that Justice Sotomayor’s concurring opinion in Freeman v. U.S., 564 U.S. 522 (2011), represented the narrowest ground on which a majority of the justices agreed. Applying that ruling, the court held that a defendant whose sentence is based on a plea under Federal Rule of Criminal Procedure 11(c)(1)(C) is not entitled to relief under 18 U.S.C. §3582(c)(2). Sitting en banc, the court held that where a court can identify no rationale common to a majority of Supreme Court justices, the court is bound only by the result. Applying that rationale, the court adopted the Freeman plurality’s rationale and held that even when a defendant enters into a plea agreement under Rule 11(c)(1)(C), the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines, and when it is, the defendant may seek relief under §3582(c)(2). U.S. v. Davis, __ F.3d __ (9th Cir. June 13, 2016) No. 13-30133.
5th Circuit says defendant did not show that he withdrew from conspiracy. (196)(240) Defendant argued that applying a §2D1.1(b)(12) enhancement for maintaining a drug house violated the ex post facto clause. Pointing to a series of events occurring in August, September and October of 2010, he argued that he withdrew from the drug conspiracy before the “drug house” enhancement took effect on November 1, 2010. The Fifth Circuit disagreed, finding defendant did not assert an affirmative defense of withdrawal nor did he prove that he took affirmative acts to disavow or defeat the purpose of the conspiracy. On August 22, 2010, defendant was arrested on a state drug charge and placed on work release; in early September 2010 he called a co-conspirator and asked to resume his active participation in the conspiracy but was rebuffed; and on October 7, 2010, he pleaded guilty to the state drug charge and was placed on probation. Defendant did not report the drug distribution conspiracy to the authorities or communicate to the other conspirators his desire to withdraw from the conspiracy. The application of §2D1.1(b)(12) did not violate the ex post facto clause. U.S. v. Romans, __ F.3d __ (5th Cir. May 19, 2016) No. 13-40219.
5th Circuit finds defendant maintained drug premises in body shop run by co-conspirator. (240) Defendant was convicted of marijuana conspiracy charges, and received a §2D1.1(b)(12) increase for “maintain[ing] a premises for the purpose of manufacturing or distributing a controlled substance.” Defendant provided the capital to start a paint and body shop operated by co-conspirator Martin, and paid the shop’s monthly rent. According to witness testimony, defendant’s primary use of the body shop was to receive and distribute large quantities of marijuana; he apparently had no role in the legitimate operations of the shop, and at his direction boxes of marijuana were taken to there for delivery to his customers. The Fifth Circuit held that the district court’s finding that defendant maintained a premises for the purpose of distributing marijuana, was not clearly erroneous. U.S. v. Romans, __ F.3d __ (5th Cir. May 19, 2016) No. 13-40219.
5th Circuit upholds finding that defendant maintained house used by drug conspiracy. (240) Defendant did not dispute that his Indianapolis residence was a stash house, but argued that he did not hold a possessory interest or exercise control over the premises as required by §2D1.1(b)(12). He contended that co-conspirator Pieper paid the rent and directed the operations at the house. The Fifth Circuit upheld the §2D1.1(b)(12) enhancement. At trial, Pieper admitted that he “assist[ed] in the paying of rent,” but said that defendant rented the house and “found that [particular] house on his own.” The rent money came from the organization’s drug proceeds, but defendant was responsible for actually paying the landlord. Finally, no evidence refuted the inference that defendant had unimpeded access to and generally controlled of the use of his residence. U.S. v. Romans, __ F.3d __ (5th Cir. May 19, 2016) No. 13-40219.
9th Circuit says sentence reduction is governed by criminal history before departure. (192)(240) Defendant pleaded guilty to possession with intent to distribute at least 500 grams of methamphetamine. At sentencing, the district court found that defendant’s criminal history category of VI overstated his criminal history and departed downward under §4A1.3. A later amendment to the drug table reduced defendant’s offense level, so defendant moved for a reduction under 18 U.S.C. §3582(c)(2). The district court denied the motion because defendant’s sentence after departure, was lower than the amended guidelines range. The Ninth Circuit affirmed, holding that the guidelines range for purposes of §3582(c)(2) is the range before any departure under §4A1.3. U.S. v. Ornelas, __ F.3d __ (9th Cir. June 3, 2016) No. 15-10522.
7th Circuit says 2-level drug amendment did not lower range where §2D1.1(a)(5) reduction no longer applied. (192)(240) Defendant was involved in a large marijuana distribution ring and was sentenced to 57 months. He later moved for a sentence reduction under Amendment 782, which reduced the offense level for many drug offenses by two levels. The judge denied the motion, finding that Amendment 782 did “not have the effect of lowering defendant’s guideline range.” The Seventh Circuit agreed. When defendant was originally sentenced, his base offense level for 1,000-3,000 kilos of marijuana was 32. However, he received a two level reduction to level 30 under §2D1.1(a)(5), because the base offense level was 32 and he qualified for a mitigating role adjustment under §3B1.2. When Amendment 782 was applied, the base offense level dropped from 32 to 30, knocking out the two-level reduction under §2D1.1(a)(5). Thus, the net effect on defendant’s guideline range was zero. U.S. v. Koglin, __ F.3d __ (7th Cir. May 17, 2016) No. 15-1943.
8th Circuit cross-reference to murder guideline did not violate right to jury trial. (120)(240) Defendant pled guilty to drug trafficking. Section 2D1.1(d)(1) provides a cross-reference to §2A1.1 if a victim died under circumstances that would constitute first-degree murder, and it would result in a greater offense level. Based on a pending state murder charge, the district court applied the cross-reference to §2A1.1, which increased defendant’s base offense level from 32 to 43. Defendant argued for the first time on appeal that the use of the cross-reference violated his Sixth Amendment right to trial by jury, because the sentence could not lawfully be imposed based only on the facts admitted in his guilty plea. The Eighth Circuit found no plain error. Given the discretion available to the district courts, and the statutory maximum terms of life imprisonment, it was not obvious that a 300-month sentence would be substantively unreasonable for defendant’s two drug-trafficking convictions standing alone. U.S. v. Briggs, __ F.3d __ (8th Cir. Apr. 12, 2016) No. 15-1215.
7th Circuit applies §2D1.1(a)(2) only where resulting death was element of the crime of conviction. (240) Defendant pled guilty to drug charges. The district court found, by a preponderance of the evidence, that defendant sold the heroin that killed one of the conspiracy’s customers. The district court followed §2D1.1(a)(2), which applies if “the offense of conviction establishes that death … resulted from the use of the [heroin].” The Seventh Circuit reversed, noting that defendant’s “offense of conviction”, distributing heroin and conspiring to possess heroin with the intent to distribute it, did not “establish” that a death resulted. The panel rejected the proposition that §2D1.1(a)(2) applies when the district court finds, by a preponderance of the evidence, that death resulted. The terms “offense of conviction” and “offense” have different meanings, and the term “offense of conviction” does not include “relevant conduct.” The death-resulting enhancement in §2D1.1(a)(2) cannot be based on relevant conduct, but is expressly tied to the substantive offense of conviction under the statute. U.S. v. Lawler, __ F.3d __ (7th Cir. Mar. 16, 2016) No. 15-1496.
7th Circuit reverses murder cross-reference because murder was not relevant conduct. (170)(240) A jury convicted defendant of conspiracy to distribute marijuana. Defendant’s PSR indicated that he and two others were suspected of murdering Edward Ewing while attempting to recover stolen cocaine and cash. The district court found that the Ewing murder was “drug-related activity” and applied §2D1.1(d)(1)’s murder cross-reference. The Seventh Circuit reversed, agreeing with defendant that the Ewing murder was not relevant conduct to his marijuana conspiracy. There was no evidence that the Ewing murder occurred during, in preparation for, or in the course of attempting to avoid detection for the marijuana conspiracy. Even if the murder was “drug-related activity,” it arose from the theft of cocaine, not marijuana. The district court erred to the extent that it found that the Ewing murder was relevant conduct under subsection (a)(1). The Ewing murder was also not relevant conduct under subsection (a)(2) because even if it was part of the same course of conduct as the marijuana conspiracy, §3D1.2(d) provides that murder cannot be grouped with other crimes. U.S. v. Taylor, __ F.3d __ (7th Cir. Feb. 24, 2016) No. 15-1236.
5th Circuit says pilot increase did not require actual importation of drugs. (240) Defendant was involved in a Colombian conspiracy to import thousands of kilos of cocaine into the United States. The district court applied a §2D1.1(b)(3) enhancement for acting as a pilot on drug flights from Colombia. Defendant argued for the first time on appeal that the enhancement required the cocaine actually be “imported,” and here, there was no evidence of importation. Fifth Circuit disagreed. The case defendant relied on, U.S. v. Chastain, 198 F.3d 1338 (11th Cir. 1999), involved a guideline equivalent to current subsection 2D1.1(b)(3)(A), not subsection 2D1.1(b)(3)(C), the section at issue here. Subsection (A) applies if an aircraft is “used to import” a controlled substance, while subsection (C) applies if the defendant acted as pilot in a flight carrying a controlled substance. Subsection (A) contained the language “used to import,” while subsection (C) did not. The government showed that defendant acted as a pilot on a December 2008 flight that carried over 600 kilograms of cocaine. “It simply does not matter that his [aircraft] was stopped before the actual importation was completed.” U.S. v. Rojas, __ F.3d __ (5th Cir. Jan. 28, 2016) No. 13-50998.
9th Circuit applies pilot enhancement to “panga” boat operator. (240)(253) Defendant was convicted of possessing more than 100 kilograms of marijuana on a vessel, in violation of 46 U.S.C. §§70503 & 70506, after he was arrested on a “panga” boat transporting marijuana. The guideline for that offense, §2D1.1(b)(3)(C), provides for a two-level enhancement if the defendant acted “as a pilot, copilot, captain, navigator, flight officer, or any other operations officer above any craft or vessel.” The district court imposed the enhancement, and the Ninth Circuit affirmed. The court of appeals rejected defendant’s contention that the enhancement applies only to individuals who occupy a position of authority on the vessel or who possess special skills aboard the ship. Instead, the court held that a defendant need not have any formal training in piloting a boat and that the enhancement can be applied to any operator of a boat. U.S. v. Cruz-Mendez, __ F.3d __ (9th Cir. Jan. 27, 2016) No. 14-50154.
7th Circuit affirms drug house enhancement. (240) Defendant, aged 70, was convicted of drug charges for allowing third parties to use his home to store controlled substances. His guideline range was 135-168 months, but the court sentenced him to 40 months. Defendant challenged a two-level enhancement under § 2D1.1(b)(12) for maintaining a drug house, arguing that the primary purpose of his residence was not drug distribution. The district court found the enhancement applied because defendant “allowed his residence to be used as a stash house on a constant basis for a substantial sum of money.” Although storing drugs was not the sole purpose of the residence, the district court found that it was one of the primary purposes. The Seventh Circuit held that any error was harmless because the district court explicitly stated it would have imposed the same sentence without the two-level increase. The court said that defendant’s age and health warranted a sentence far below the guideline range. U.S. v. Sanchez, __ F.3d __ (7th Cir. Jan. 13, 2016) No. 15-1356.
10th Circuit upholds cross-reference to murder where co-conspirator died during attempted robbery. (210) (240) Defendant pled guilty to charges stemming from his involvement in a drug conspiracy. During the conspiracy, he organized the attempted robbery of a rival drug-dealer, recruiting DaRyan and his cousin to commit the robbery. During the attempted robbery, the dealer shot and killed DaRyan. Guideline § 2D1.1(d)(1) states that if a victim was killed under circumstances that would constitute murder, the court should apply § 2A1.1, the first-degree murder guideline. The Tenth Circuit upheld the district court’s use of the § 2D1.1(b)(1) cross-reference, concluding that a preponderance of the evidence connected DaRyan’s death with the drug-trafficking conspiracy. The evidence suggested that DaRyan, who lived with defendant, was selling marijuana and possibly cocaine on defendant’s behalf. The purpose of the robbery was to steal a kilo of cocaine. Even if DaRyan was not a member of the conspiracy, defendant more likely than not procured the commission of this robbery of another drug-dealer so he could (a) eliminate any competition to the drug-trafficking conspiracy, and (b) sell the stolen cocaine to benefit the conspiracy. U.S. v. Craig, __ F.3d __ (10th Cir. Dec. 22, 2015) No. 14-3185.
5th Circuit rules enhancement for use of a minor was not plain error. (240) Defendant was part of a group of 37 people who were indicted for a drug conspiracy after a multi-year FBI investigation. He argued for the first time on appeal that his sentence should not have been enhanced under § 2D1.1(b)(14)(B) for involving minors in a drug crime. The Fifth Circuit found no plain error. One witness testified that defendant used “teenagers” to distribute drugs. Further, defendant was recorded telling an eight-year-old girl to get in the car to go to a drug deal. It was plausible that defendant brought the girl with him “to avoid detection of or apprehension [for] the particular crime.” U.S. v. Benitez, __ F.3d __ (5th Cir. Dec. 11, 2015) No. 14-40046.
5th Circuit upholds enhancement for maintaining drug house. (240) Defendant was part of a group of 37 people who were convicted of drug conspiracy charges. He challenged for the first time on appeal a two-level enhancement under § 2D1.1(b)(12) for maintaining a premises for purposes of manufacturing or distributing a controlled substance. Defendant asserted that no evidence showed he controlled access to or activities at the apartment. The Fifth Circuit disagreed. Defendant kept a key to the apartment, described it as his to the officers, and received water bills there addressed to him (under an alias). Moreover co-conspirator Cervantes used the apartment rent-free on the condition that he help defendant with the drug distribution. The district judge did not clearly err in finding that defendant controlled activities at the apartment. The PSR also indicated that defendant intended the apartment to be used primarily to sell drugs. Defendant received drug deliveries at the apartment, and the search of the apartment revealed an air-breathing mask, a cutting agent, and a metal strainer (in addition to the drugs themselves). Based on this evidence, the conclusion that defendant used the apartment “primarily” to distribute drugs was not clearly erroneous. U.S. v. Benitez, __ F.3d __ (5th Cir. Dec. 11, 2015) No. 14-40046.
5th Circuit finds defendant maintained drug distribution apartment. (240) Defendant was convicted of heroin conspiracy charges. The district court applied a two-level enhancement under § 2D1.1(b)(12) because defendant “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” It found that defendant had maintained “the spot,” an apartment the conspiracy used for heroin transactions, as evidenced by co-conspirator Berry’s trips there to receive heroin, and the lack of food, clothes, and personal items found when officers searched “the spot.” The Fifth Circuit affirmed. Defendant did not contest that he maintained the premises. The district court made factual findings, supported by the record, showing that one of the main purposes for the apartment was drug distribution. Defendant did not show how the district court’s decision was erroneous. U.S. v. Haines, __ F.3d __ (5th Cir. Oct. 15, 2015) No. 13-31287.
1st Circuit approves upward variance based on §3553(a) factors. (240)(741) Defendant pled guilty to drug charges, and was sentenced to 240 months, an upward variance from his guideline range of 168-210 months. The First Circuit affirmed, ruling that the district court adequately determined defendant’s sentence, taking into account both his personal history and his specific role in the conspiracy. The district court cited a number of the §3553(a) factors, and then found a variance was warranted based on the “overall picture.” The court also noted that defendant could have “easily” received a three or four level leadership enhancement, but only received a two level increase. The court also discussed defendant’s personal circumstances, explicitly noting his age, seventh grade education, documented history of substance abuse beginning in his teens, lack of mental health issues, and the “grim” prospects he faced born of two drug-addicted parents. Moreover, the court did not err when it considered defendant’s criminal record, finding that his criminal history category underrepresented the seriousness of his prior offenses. U.S. v. Villanueva Lorenzo, __ F.3d __ (1st Cir. Sept. 23, 2015) No. 14-1260.
8th Circuit finds sufficient evidence for cross-reference to murder guideline. (210)(240) Defendant was convicted of multiple drug charges. The guidelines provide a base offense level of 43 “[i]f a victim was killed under circumstances that would constitute [first degree] murder under 18 U.S.C. § 1111 had such killing taken place within” federal jurisdiction. U.S.S.G. §§ 2A1.1, 2D1.1(d)(1). At sentencing, the district court found that defendant had murdered Perkins, a co-conspirator, to keep him from testifying, and applied the base offense level for first degree murder. The Eighth Circuit held that the court’s finding was supported by a preponderance of the evidence. Defendant discussed killing Perkins with several co-conspirators, including his son. Cell phone records and testimony from defendant’s companion at the dog track the night of the killing showed that defendant was gone from the dog track for about 4 1/2 hours. Defendant’s son testified that defendant had confessed to driving from the dog track, shooting Perkins in the face with a nine millimeter Glock, and returning to the track. The information the son knew about Perkins’ wounds and the type of weapon used was not publicly available. U.S. v. Castleman, __ F.3d __ (8th Cir. Aug. 5, 2015) No. 14-3184.
6th Circuit rejects disparate sentence claim where each sentence fell within guideline range. (240)(716) Defendant, a purported “pain management physician,” was convicted of conspiring to distribute a controlled substance, maintaining a drug-involved premises, and related charges. The district court imposed four consecutive life sentences. Defendant argued that the court failed to account for legitimate prescriptions in its drug quantity determination. The Sixth Circuit found any error was harmless, since defendant’s convictions for unlawful distribution leading to death, standing alone, warranted the same base offense level. See § 2D1.1(a)(2) (specifying a base offense level of 38 “if the defendant is convicted [under § 841(b)(1)(C) ] … and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance”). The panel also rejected defendant’s sentencing disparity argument. Four life sentences, one for each § 841(b)(1)(C) conviction, might appear relatively disparate. Other doctors in a similar position may have been sentenced to less lengthy terms of imprisonment. But each of defendant’s s life sentences fell within the applicable guidelines ranges. When a sentence is within-guidelines, § 3553(a)(6) is an improper vehicle for challenging that sentence. U.S. v. Volkman, __ F.3d __ (6th Cir. Aug. 14, 2015) No. 12-3212.
9th Circuit says Commission properly considered rehabilitation in making drug amendment retroactive. (192) (240)(680) In Amendment 782, the Sentencing Commission reduced most the offense levels for most drug offenses by two levels. In Amendment 788, the Commission made Amendment 782 retroactive, but stated that a court could not make relief effective before November 1, 2015. The Commission explained in part that it had delayed the effective date to allow those released to participate in reentry programs. Defendant argued that Amendment 782 should be immediately retroactive because the Commission could not consider the rehabilitative needs of prisoners in determining that a court could not grant relief before November 1, 2015. The Ninth Circuit rejected this argument, holding that any flaw in the Commission’s reasoning did not provide defendant with a basis to reduce his sentence. Moreover, the bar on considering rehabilitation in sentencing is inapplicable to sentence reduction proceedings. U.S. v. Navarro, __ F.3d __ (9th Cir. Sept. 4, 2015) No. 15-10245.
9th Circuit upholds one-year delay in effective date of drug amendment. (192)(240)(680) The Sentencing Commission reduced the offense levels for most drug offenses by two levels. In Amendment 788, the Commission made the amendment reducing offense levels (Amendment 782) retroactive, but stated that a court could not make relief effective before November 1, 2015. Defendant argued that the Commission’s decision to delay the effective date of Amendment 782 until November 1, 2015, was arbitrary, in violation of the equal protection component of the Due Process Clause. The Ninth Circuit held that the Commission had not arbitrarily and unconstitutionally discriminated against prisoners who were due for release before November 1, 2015. U.S. v. Navarro, __ F.3d __ (9th Cir. Sept. 4, 2015) No. 15-10245.
6th Circuit holds that defendant’s intent permitted applying murder cross-reference. (210)(240) Defendant was the girlfriend of Shakir, the violent leader of a large drug conspiracy. Defendant was active in the conspiracy, and pled guilty to drug and money laundering conspiracy counts. The district court applied the murder cross-reference in § 2D1.1(d)(1), based on Shakir’s murder of Sharon Duran. The Sixth Circuit upheld the application of the cross-reference, finding defendant had the requisite intent. The district court found that defendant had “actual knowledge” that Shakir intended to kill Duran. This finding was not clear error, as defendant’s knowledge could be inferred from her substantial participation in the course of events before and after Duran’s murder. Defendant arranged for Shakir to meet with Duran, and followed them in her car, and drove Shakir away after he killed Duran. Actual knowledge necessarily satisfied the lesser reasonable-foreseeability standard. U.S. v. Anderson, __ F.3d __ (6th Cir. Aug. 4, 2015) No. 14-5741.
8th Circuit approves criminal livelihood increase. (240)(430)(530) The drug guideline provides for a two-level enhancement in § 2D1.1(b)(15)(E) if the defendant played an aggravating role in the offense, such as organizer or leader, and “committed the offense as part of a pattern of criminal conduct engaged in as a livelihood.” Defendant received an aggravating role adjustment, and the Eighth Circuit held that he also properly received the criminal livelihood adjustment. A government investigator testified that defendant had no reported income. Other trial evidence established that he was selling large quantities of methamphetamine every week, always paid his rent on time, purchased a car for $13,300 in cash, paid cash for $14,000 worth of repairs and improvements on his home, and purchased several businesses. U.S. v. Morris, __ F.3d __ (8th Cir. July 2, 2015) No. 14-2406. XE “U.S. v. Morris, __ F.3d __ (8th Cir. July 2, 2015) No. 14-2406.”
8th Circuit upholds cross-reference from drug guideline to first-degree murder. (210)(240) Defendant was involved in a drug conspiracy that resulted in Benson, a man who had traveled to Missouri to sell cocaine to defendant, being shot and killed. Defendant pled guilty to drug conspiracy charges. The district court applied the cross-reference in §2D1.1 to the first-degree murder guideline, §2A1.1, finding the murder was a “knowing, willful, premeditated matter.” The Eighth Circuit rejected defendant’s claim that applying the cross-reference violated defendant’s Fifth or Sixth Amendment rights. There was sufficient evidence to support application of the cross-reference. The district court did not clearly err in finding that the conspiracy included the killing of Benson. The district court found the witnesses who testified about defendant’s role in the killing were credible, and were corroborated by other testimony. The panel had no basis upon which to question the district court’s credibility determination. U.S. v. Jackson, __ F.3d __ (8th Cir. Apr. 10, 2015) No. 14-1084.
8th Circuit reverses drug house increase for plain error. (195)(240) A jury convicted defendant of cocaine conspiracy charges. The district court applied a two-level enhancement under §2D1.1(b)(12) for maintaining a place for drug distribution. The court calculated a guideline range of 360 months to life, and sentenced her to 360 months. However, §2D1.1(b)(12) did not take effect until two years after defendant ceased her drug activities. The government conceded that the court should not have applied the enhancement, and that the error was plain. Defendant’s advisory guideline range should have been 292-365 months. The Eighth Circuit reversed, holding that the court’s plain error in applying the §2D1.1(b)(12) enhancement affected defendant’s substantial rights. The sentencing court relied on the government’s recommendation of a sentence at the bottom of the range. The government conceded at oral argument that it probably would have recommended a sentence at the bottom of the correctly calculated range, and that the court probably would have taken that recommendation. Thus, there was a reasonable possibility that but for the error, defendant would have received a lesser sentence. U.S. v. Grandison, __ F.3d __ (8th Cir. Mar. 26, 2015) No. 14-1381.
1st Circuit applies stash house enhancement despite conflicting evidence. (240) Defendant pled guilty to multiple drug trafficking charges. He received a two-level enhancement under §2D1.1(b)(12) for maintaining an apartment as a stash house even though he did not own or rent the apartment, did not receive mail there, did not use the address on any official forms, and did not contract for any of the utilities. The First Circuit upheld the enhancement. There was ample evidence that the defendant exercised dominion and control over the apartment. He had a key, came and went at will, and slept there whenever he pleased. He, and no one else, kept clothes and toiletries there. In addition, he controlled the activities that took place at the apartment and ensured that the premises would remain available by delivering rent payments. There was a sufficient nexus between the premises and defendant’s drug trafficking activities. Surveillance video showed that defendant and his co-conspirator sold drugs from the apartment for nearly three months. Furthermore, the DEA’s search of the apartment disclosed that sizeable quantities of cocaine and numerous accouterments of the drug-trafficking trade were being kept there. Thus, a principal use of the apartment was for activities related to the defendant’s drug distribution. U.S. v. Jones, __ F.3d __ (1st Cir. Feb. 20, 2015) No. 13-2358.
7th Circuit upholds refusal to vary based on future guideline amendment. (192)(240)(742) Defendant was convicted of drug charges. He sought a downward departure from his 24-30 month guideline range based in part on Amendment 782, which had not yet taken effect but which would lower by two levels the base offense level for many drug crimes. Defendant was sentenced on April 10, 2013, the same day the Sentencing Commission approved Amendment 782 and sent it to Congress for review. The amendment had an effective date of November 1, 2014. The district court refused to apply the amendment, and on appeal, defendant argued that this created an unwarranted sentencing disparity. The Seventh Circuit found no error. The district court considered whether its decision to not take the amendment into account created a sentencing disparity, and concluded that it did not. Defendant could not possibly quibble with that conclusion because he did not identify even one concrete example of a similarly situated defendant who received a lower sentence based on the not-yet-effective amendment. U.S. v. Hayden, __ F.3d __ (7th Cir. Dec. 30, 2014) No. 14-1812.
8th Circuit upholds increase for maintaining stash house. (240) Defendant pled guilty to conspiracy to distribute 500 grams or more of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a), 846. He received a two-level increase under § 2D1.1(b)(12) for maintaining a premise for the purpose of distributing a controlled substance. The Eighth Circuit affirmed, finding that the district court did not clearly err when it concluded that defendant maintained the premises and used it primarily as a base of operations to transport, store, and distribute meth. Multiple officers testified that from May 2013 to October 2013, defendant regularly used a detached garage on the premises to store vehicles that were used in the drug conspiracy. There was also credible evidence suggesting that these vehicles sometimes contained large quantities of drugs when they were stored in the garage. In addition, although the rent and utilities for the premises were in another person’s name, that person was rarely at the premises and defendant had free access to the premises, mowed the lawn, and took out the garbage. U.S. v. Garcia, __ F.3d __ (8th Cir. Dec. 17, 2014) No. 14-1530.
Supreme Court allows sentence for crack cocaine even though jury found conspiracy to sell cocaine or crack. (240) Petitioners were charged with conspiring to sell mixtures containing cocaine and cocaine base. The jury was instructed that the government had to prove that the conspiracy involved measurable amounts of “cocaine or cocaine base,” and it returned a general guilty verdict. The judge found that each petitioner’s conduct involved both cocaine and crack and sentenced based on the crack guidelines. On appeal, for the first time, petitioners argued that the word “or” in the jury instruction required the judge to assume that the conspiracy involved only cocaine. In a unanimous opinion written by Justice Breyer, the Supreme Court affirmed the crack sentence, holding that under the guidelines, the judge, not the jury determines the kind and quantity of controlled substances. Moreover, even if the jury had found the substance was cocaine, the “relevant conduct” section of the guidelines, 1B1.3, requires the judge to consider all drugs that are “part of the same course of conduct or common scheme or plan as the offense of conviction.” Petitioners’ argument might have made a difference if the guideline sentence for crack had exceeded the statutory maximum for powder cocaine, but the sentences here were within the statutory limits for powder cocaine. Edwards v. U.S., 523 U.S. 511, 118 S.Ct. 1475 (1998).
1st Circuit says judicial fact-finding that did not result in mandatory minimum did not violate Alleyne. (240) Defendants were convicted of drug trafficking, and appealed the district court’s drug quantity findings. After oral argument, the Supreme Court decided Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013), holding that the Sixth Amendment requires that “facts that increase mandatory minimum sentences must be submitted to the jury.” Both defendants then argued that their sentences must be reversed because they were imposed by virtue of judicial fact-finding by a preponderance of the evidence. The First Circuit upheld their sentencing. There was no Alleyne error because all elements of the defendants’ crimes of conviction under 21 U.S.C. § 841(a)(1) and (b)(1)(C) were admitted as part of the guilty pleas, and neither defendant was sentenced to a mandatory minimum. Alleyne is not violated by factual findings made for purposes of applying the advisory sentencing guidelines. U.S. v. Ramirez-Negron, 751 F.3d 42 (1st Cir. 2014).
1st Circuit limits Alleyne to judicial fact-finding that affects mandatory minimum or statutory maximum. (240) Defendant was convicted of illegally distributing cocaine base. His indictment did not allege any amount of cocaine base, and the jury did not make a drug quantity finding. At sentencing, the district court found by a preponderance of the evidence that defendant was responsible for 280 grams of cocaine base. Defendant argued that the use of the preponderance standard violated Alleyne v. U.S., 133 S.Ct. 2151 (2013), which requires a jury to find, beyond a reasonable doubt, any fact that requires imposing a statutory minimum penalty. The First Circuit found Alleyne inapplicable, ruling that despite Alleyne, judges retain discretion to find facts that do not trigger a mandatory minimum punishment or alter a statutory maximum. Such facts may be continue to be found by the sentencing court based upon a preponderance of the evidence. This was such a case. U.S. v. Doe, 741 F.3d 217 (1st Cir. 2013).
1st Circuit reverses general life sentence in drug case as plain error. (240) Defendant received a life sentence for his role in a large-scale drug operation that sold heroin, crack, cocaine, and marijuana at a public housing project in Yabucoa, Puerto Rico. He challenged his life sentence, arguing that none of his convictions supported that penalty. The government argued that the life term was proper on two of the drug counts. Nevertheless, the First Circuit reversed, noting that the district court was required to consider the appropriate punishment for each count, and it would be unseemly for the appellate court to permit—indeed, to direct—an unlawful term of life imprisonment on the other counts. Moreover, the panel rejected the government’s claim that life sentences could be supported for the two drug counts under U.S. v. Cotton, 535 U.S. 625 (2002). Unlike Cotton, the grand jury did choose a drug quantity—thereby setting specific, statutorily prescribed limits on the sentence. U.S. v. Zavala-Marti, 715 F.3d 44 (1st Cir. 2013).
1st Circuit upholds cross-reference to first-degree murder guideline despite error in identifying victims. (240) Defendant was one of four defendants convicted of drug and firearms charges. The court applied the murder cross-reference in § 2D1.1(d)(1) to reach an advisory guideline range of life imprisonment for the drug conspiracy count. The First Circuit upheld the life sentence, although the court erred in its identification of the murders with which defendant was involved. The court found that defendant had participated in the planning and execution of the murders of Indio and Agustín, but the government conceded that defendant was not involved in Indio’s murder. However, the court correctly found that defendant had helped to plan and execute the Agustín murder. The trial evidence showed that defendant was part of the group that decided to murder Agustín, and that defendant was the one who ultimately shot Agustín in the head. That finding alone supported the application of the first-degree murder cross-reference, rendering a drug quantity finding superfluous. U.S. v. Rodriguez-Reyes, 714 F.3d 1 (1st Cir. 2013).
1st Circuit affirms application of murder cross-reference. (240) Defendant was convicted of drug and firearms conspiracy charges. The court applied the murder cross-reference in guideline § 2D1.1(d)(1) to reach an advisory guideline range of life imprisonment for the drug count. This cross-reference applies in a drug trafficking case, “[i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 …” The First Circuit affirmed application of the cross-reference to defendant. The court explained the trial evidence showing that defendant had formed plans to kill Rivera and Ortiz, and that he had participated in killing both victims because of the perceived threat they posed to the drug operation. These statements reflected a finding that the murders were premeditated, and the trial evidence supported such a finding. The court then connected these planned murders to the § 2D1.1(d)(1) cross-reference by specifying that the killings were in furtherance of the drug conspiracy. U.S. v. Rodriguez-Reyes, 714 F.3d 1 (1st Cir. 2013).
1st Circuit finds sentence of time served for drug trafficker unreasonably lenient. (240) Defendant headed a large-scale marijuana distribution operation for four years that involved 1000 or more kilograms of marijuana. The government moved for a substantial assistance reduction under 18 U.S.C. §3553(e) and U.S.S.G. § 5K1.1. The court, after discussing without elaboration defendant’s “extraordinary” cooperation, his contrition, and the force of numerous letters submitted on his behalf, found that the 18 days he had already spent in detention and the prospect of a very large forfeiture would be sufficient punishment. The First Circuit held that the sentence of time served imposed by the court was unreasonably lenient. It was not improper for the court to afford “some minor weight” to the amount of the forfeiture order or to consider defendant’s charitable activities. The two main grounds for the sentence were defendant’s contrition and his cooperation. While these are proper grounds for variances, the weight given them can be reviewed for reasonableness. Sentences with no (or trivial) prison time have been scrutinized severely on appellate review. Moreover, the facts were not helpful to defendant – he did not commit a single criminal act on impulse, but engaged in a large number of drug transactions over a substantial period of time. As for defendant’s assistance, the court said nothing of substance that would explain why a near-zero sentence was warranted. U.S. v. Milo, 506 F.3d 71 (1st Cir. 2007).
1st Circuit infers court’s reasoning for guideline sentence from court’s actions. (240) Defendant pled guilty to drug conspiracy charges. The district court initially sentenced him to 210 months, but the case was remanded for resentencing in light of U.S. v. Booker, 470 F. 3d 443 (1st Circuit 2006). On remand, the court again sentenced defendant to 210 months. Defendant appealed, arguing that the court did not adequately explain the reasoning behind his sentence, as required by 18 U.S.C. § 3553(c). The First Circuit disagreed. The court’s reasoning could be inferred by comparing the parties’ arguments from what the judge did. Although the court did not specifically reject defendant’s arguments for a downward variance, it did explain that it found that by a preponderance of the evidence that at least five kilograms of cocaine could be attributed to defendant, that a weapon was foreseeable, and that it considered every § 3553(a) factor. The court also specifically stated that it did not agree with defendant’s disparity argument because plea bargains were “very valuable to the system.” Thus, the panel could infer that the sentencing court did not find defendant’s arguments regarding sentencing disparities or the sufficiency of the evidence persuasive, and that it thought a sentence based on the guideline recommendations was warranted. U.S. v. Vazquez-Rivera, 470 F.3d 443 (1st Cir. 2006).
1st Circuit holds that nine-year sentence for drug dealer was not unreasonable given his history of violence. (240) Defendant pled guilty to two counts of possessing and distributing crack cocaine, and received a nine-year sentence, which was three and one half years below the bottom of the advisory guideline range. Defendant nonetheless appealed the sentence as unreasonably high because of various mitigating circumstance, primarily, his multiple serious medical problems. The First Circuit upheld the sentence as reasonable, finding the district court gave adequate consideration to defendant’s medical problems. The court found that defendant’s medical condition was “obviously a serious situation,” and this was the court’s primary rationale for imposing a sentence below the guideline sentencing range. However, the court felt that other statutory factors, including the public’s need to be protected from defendant’s “demonstrably violent personality,” warranted a “substantial sentence.” The court also expressed skepticism that defendant’s medical condition would prevent him from continuing his lifelong pattern of domestic violence, and discredited defendant’s argument that his forced sobriety while incarcerated would cure his lifetime alcohol abuse. U.S. v. Caraballo, 447 F.3d 26 (1st Cir. 2006).
1st Circuit finds plain error in mandatory application of guidelines where court sympathized with defendant and expressed frustration with long drug sentences. (240) The district court erred in sentencing defendant because it believed the Sentencing Guidelines were binding and sentenced defendant accordingly. The First Circuit remanded for resentencing, finding “some chance” that the court might have imposed a different sentence under the advisory guidelines regime. First, the court sentenced defendant to the minimum guideline sentence, which, while not dispositive, was still highly relevant. The court also stated that the drug sentences it was routinely called upon to impose were “off the chart,” perhaps indicating a concern that the guidelines recommendations failed in some cases to take into account relevant mitigating circumstances. This, combined with the court’s apparent sympathy for the defendant and its stated hope for defendant’s rehabilitation, was sufficient to carry the “relatively undemanding burden” a defendant must meet for resentencing under U.S. v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). U.S. v. Aitoro, 446 F.3d 246 (1st Cir. 2006).
1st Circuit holds that substantial downward variance was unreasonable. (240) Defendant pled guilty to six counts of crack distribution and one count of conspiring to sell crack. His guideline range was 100-125 months, but the district court sentenced defendant to 46 months’ imprisonment, followed by six years of supervised release. The First Circuit ruled that the variance was unreasonable under the circumstances. The offense was serious and defendant’s record was unpromising. Although the court considered defendant’s youth, these offenses were not youthful aberrations, and defendant’s criminal career had progressed fairly steadily toward more serious crimes. The court found defendant’s involvement in this offense was limited; however, based on his prior crimes, the present offenses were merely a further extension of his criminal history. The fact that defendant was not a leader was already accounted for in the guidelines. Finally, while defendant may have committed some of the crimes to support a drug habit, his history of relapse after undergoing drug treatment “[did] not speak well for his prospect of future self-control, whatever the cause for the relapse may have been.” U.S. v. Smith, 445 F.3d 1 (1st Cir. 2006).
1st Circuit says use of murder cross-reference did not violate Blakely where jury already decided murder occurred. (240) Defendant was convicted of drug charges and three murder charges (aiding and abetting firearms murder in furtherance of a drug crime, aiding and abetting murder of a witness, and aiding and abetting murder while engaging in a drug crime). The drug conspiracy guideline, § 2D1.1(d)(1) provides a cross-reference to the first degree murder guideline “[i]f a victim was killed under circumstances that would constitute murder….” The First Circuit held that the district court’s use of the murder cross-reference did not violate Blakely v. Washington, 124 S.Ct. 2531 (2004) because the jury had already decided that, in the course of the conspiracy, a victim was killed under circumstances that would constitute murder had the killing occurred within the federal criminal jurisdiction. Although not necessary to the analysis, the jury convicted defendant of personally aiding and abetting in that murder. U.S. v. Rodriguez-Marrero, 390 F.3d 1 (1st Cir. 2004).
1st Circuit holds that use of murder cross-reference did not violate Apprendi. (240) Defendant was convicted of drug conspiracy charges. He argued that the district court violated his due process rights when it applied the murder cross-reference in § 2D1.1(d) to enhance his sentence to life without submitting the enhancement factor to the jury for proof beyond a reasonable doubt. The First Circuit rejected defendant’s claim that the use of the higher mandatory sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The statutory maximum for the offense that defendant was charged with was life imprisonment. Because defendant’s sentence did not exceed that statutory maximum, Apprendi was not applicable, regardless of whether a sentencing factor increases the mandatory minimum sentence under either the statute or the Sentencing Guidelines. See U.S. v. Robinson, 241 F.3d 115 (1st Cir. 2001). U.S. v. Reyes-Echevarria, 345 F.3d 1 (1st Cir. 2003).
1st Circuit upholds application of murder cross-reference. (240) Defendant was convicted of multiple drug charges. Applying the murder cross reference provision in U.S.S.G. § 2D1.1(d) (1), the district court determined by a preponderance of the evidence that defendant’s role in the massacre of others warranted a base offense level of 43. The First Circuit upheld the cross-reference, rejecting defendant’s claim that the use of it violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Although defendant was previously acquitted in state court of the murders, the use of the cross reference did not violate due process. U.S. v. Lombard, 72 F.3d 170 (1st Cir. 1995). The use of the cross-reference also did not violate Apprendi, which does not apply to findings made under the sentencing guidelines, where the sentence imposed does not exceed the original statutory maximum. Finally, there was sufficient evidence to suppose the use of the cross-reference. A resident of a housing project observed three individuals with bloodstained clothing being pulled out of a car and taken behind a neighboring building. The witness then saw defendant raise and lower a red gasoline can as if he were spraying gas inside the vehicle. Another witness testified that he was told by a conspirator that the victims were thrown into the back seat of a car, forced to drink gasoline, and then executed and set on fire. Finally, a long-time acquaintance of defendant’s testified that defendant admitted to committing the murders. U.S. v. Newton, 326 F.3d 253 (1st Cir. 2003).
1st Circuit rejects sentencing manipulation claim. (240) Defendant argued that the court should have reduced the amount of cocaine attributed to him because of the intensive involvement of confidential informants Hernandez and Diaz in the conspiracy. This was a type of improper sentencing manipulation argument, for which defendant had the burden. However, “garden-variety manipulations claims are largely a waste of time.” It is insufficient to say that the idea of the conspiracy originated with undercover agents, or that the crime exceeded in degree or kind what the defendant had done before. Instead, the defendant must show that elements like these were so extensive that “the government conduct must be viewed as extraordinary misconduct.” The First Circuit found that defendant fell short of this standard. He offered nothing more than conclusory allegations. Further, Hernandez testified that the Colombians, not he or Diaz, set the amount involved in the cocaine importation. Defendant also bragged to Diaz that he and his team had been drug trafficking for years. Thus, it was unlikely that government agents encouraged defendant or his co-conspirators to engage in conduct in which they would otherwise have been unwilling to participate. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit holds that § 841’s provision for supervised release control over general supervised release statute. (240) “Except as otherwise provided,” the maximum supervised release term for Class A and Class B felonies is five years. 18 U.S.C. § 3583(b). However, 21 U.S.C. § 841(b)(1)(A), mandates a supervised release term of “at least five years.” This language in § 841(b) established a mandatory minimum term of supervised release, not a maximum. U.S. v. Lopez, 299 F.3d 84 (1st Cir. 2002). The First Circuit held that § 841(b)’s provisions for supervised release controlled over the general supervised release statute. The maximum five-year supervised release term in § 3583(b) is not applicable. The phrase “[e]xcept as other provided” indicates that § 3583(b) yields to other more specific statutes, such as § 841, that make different provisions for terms of supervised release for particular offenses. However, the district court erred when it sua sponte departed upward to impose a ten-year supervised release term. Under the guidelines, defendant was subject to a three- to five-year supervised release term, U.S.S.G. § 5D1.2(a)(1). The court apparently overlooked this fact, stating that the ten-year period of supervised release was “within the sentencing guidelines.” Thus, the court committed two errors: failing to provide the parties with notice of the potential upward departure, see Burns v. U.S., 501 F.3d 129 (1990) and not making the required findings of an aggravating or mitigating circumstances to support the departure. U.S. v. Cortes-Claudio, 312 F.3d 17 (1st Cir. 2002).
1st Circuit agrees that defendant conspired to distribute heroin inside prison. (240) Defendant conspired with Cortes, who was incarcerated in a state prison, and Cortes’ girlfriend, to distribute heroin. Although there was no direct evidence that defendant was involved in bringing drugs inside the prison, the First Circuit affirmed a § 2D1.1(b)(3) enhancement for the distribution of heroin inside a prison. The PSR contained circumstantial evidence implicating defendant in the distribution of drugs in prison, including multiple taped telephone calls from Cortes to his girlfriend in which they discussed the fact that the girlfriend was holding heroin for Cortes, that the heroin would be delivered to the prison, that the girlfriend would get a note with instructions from defendant, and to give money to defendant. Given (1) defendant’s extensive participation in the heroin business; (2) the discussions between Cortes and his girlfriend about plans to distribute heroin inside a prison with defendant’s assistance; (3) defendant’s question to an undercover officer about purchasing heroin for “someone in jail”; and (4) a confidential informant’s report that defendant was involved with Cortes in a drug distribution ring, the district court did not err in concluding that defendant conspired with Cortes and his girlfriend to distribute heroin inside a prison. U.S. v. Lopez, 299 F.3d 84 (1st Cir. 2002).
1st Circuit refuses to extend Apprendi to mandatory minimums. (240) 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 finds sufficient evidence that substance was crack cocaine. (240) The First Circuit held that the district court did not err in finding that the substance involved in defendants’ offenses was cocaine base and crack. The government may show by expert chemical analysis that a substance is cocaine base. However, chemical analysis cannot establish that a substance is crack because crack is chemically identical to other forms of cocaine base. Lay opinion testimony suffices to prove that cocaine base is crack. Here, a DEA chemist testified that she performed multiple tests on all of the samples and positively identified them as cocaine base. The chemist gave her opinion that it was crack based on the appearance of the sample and the presence in some of them of sodium bicarbonate. Multiple witnesses testified that the substance was crack cocaine. A government informant testified that he purchased crack from defendants. An FBI agent testified that the cocaine was “rock-like” and yellowish or off-white in color when seized. A police detective testified that that the samples were crack, based on testimony about its appearance even after being ground up for lab analysis. This testimony, “remarking the substance’s distinctive appearance and texture and identifying it as crack, forged the final link in the evidentiary chain.” In addition, the district court was entitled to consider the “utter absence of evidence that the substance was anything other than crack cocaine. U.S. v. Richardson, 225 F.3d 46 (1st Cir. 2000).
1st Circuit holds that enhancement for captain of vessel applies to conspiracies and attempts. (240) Section 2D1.1(b)(2)((B) requires a two-level enhancement if the defendant “acted as a … captain … aboard any craft or vessel carrying a controlled substance.” Defendant argued that the increase would only have been appropriate if he had actually carried out the act of transporting drugs, but was not proper for mere conspiracy and attempt. The First Circuit found this argument frivolous. The offense level for the crimes of conspiracy and attempt is “[t]he base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” USSG § 2X1.1(a). Thus, the increase for acting as captain plainly is to be applied to convictions for conspiracy and attempt, so long as the necessary factual predicate for the enhancement exists. Defendant did not challenge the court’s finding that he was the captain of a boat intended to be used to carry marijuana. His argument was simply that the substantive crime was not committed. However, it did not matter whether he actually carried the controlled substance; his conspiring and his attempt to do so warranted the increase. U.S. v. Rodriguez, 215 F.3d 110 (1st Cir. 2000).
1st Circuit says lay evidence can establish that cocaine base is crack. (240) Defendant argued that the cocaine base involved in his case was not crack cocaine, citing the low purity of the cocaine, and complaining that the government produced no evidence regarding the melting point or water solubility of the seized drugs. The First Circuit noted that it had previously rejected defendant’s allegations regarding water solubility and melting point. See, e.g., U.S. v. Ferraras, 192 F.3d 5 (1st Cir. 1999); U.S. v. Martinez, 144 F.3d 189 (1st Cir. 1998). Once the government has laid a proper foundation by introducing a chemical analysis proving that a substance is cocaine base, no further scientific evidence is needed. The government can bridge the evidentiary gap between cocaine base and crack cocaine by presenting lay opinion evidence from a reliable witness who possesses specialized knowledge. In the present case, the government produced competent scientific evidence from two chemists to prove that the 221 grams seized at defendants’ arrest was cocaine base. Once the government introduced this testimony, no additional scientific evidence was needed. Competent lay testimony, such as that of a police officer remarking on the substance’s distinctive appearance and texture and identifying it as crack, completed the necessary link. U.S. v. Charles, 213 F.3d 10 (1st Cir. 2000).
1st Circuit permits reliance on large drug quantity to sentence at top of guideline range. (240) Defendants argued that at sentencing, the district court was unduly influenced by the amount of cocaine involved in his offense. The First Circuit found no impropriety in the court’s consideration of drug quantity. The amount of the controlled substance is not only a relevant concern at sentencing, it is the most critical factor used to determine the proper base offense level. Moreover, the court could properly rely on the large drug quantity involved to sentence defendants at the top of the applicable guideline range. Defendants possessed almost seven times the 150 kilograms of cocaine needed for their base offense level of 38. The district court also properly considered the need for deterrence in imposing a sentence at the top of the guideline range. In fact, 18 U.S.C. § 3553(a)(2)(B) expressly directs the court to consider the need for adequate deterrence when imposing a sentence. U.S. v. Rosario-Peralta, 199 F.3d 552 (1st Cir. 1999).
1st Circuit says enhancement for use of minor not double counting. (240) Section 2D1.2(a)(1) provides for a two-level enhancement for drug offenses “directly involving” minors. Defendant argued that his § 2D1.2(a)(1) enhancement constituted double counting, since the minors involved in the conspiracy already had been counted under § 3A1.1(a) as among the five participants he supervised. The First Circuit found that the cumulative application of § 2D1.2(a)(1) and § 3B1.1(a) did not constitute impermissible double counting. Note 4 to § 1B1.1 says that “[a]bsent an instruction to the contrary, the adjustments from different guideline sections are applied cumulatively (added together).” Nothing in the text or commentary suggests that either § 2D1.2(a)(1) or § 3B1.1(a) may not be applied cumulatively. U.S. v. Rivera-Maldonado, 194 F.3d 224 (1st Cir. 1999).
1st Circuit says lay opinion evidence can prove that cocaine base is crack. (240) Defendant argued that the government failed to prove that the 101.74 grams of cocaine base seized from his apartment was crack cocaine, noting that the government did not produce any evidence as to the water solubility of the cocaine base. The First Circuit noted that it rejected an almost identical challenge in U.S. v. Martinez, 144 F.3d 189 (1st Cir. 1998). Martinez held that once the government laid a proper foundation “by introducing a chemical analysis proving that, chemically, the contraband was cocaine base,” no further scientific evidence was needed. Instead, the government can bridge the evidentiary gap between cocaine base and crack cocaine by presenting lay opinion evidence from “a reliable witness who possesses specialized knowledge” (gained by experience in dealing with crack or familiarity with its appearance and texture). In the present case, the government produced competent scientific evidence from a chemist that the 101.74 grams was cocaine base. No additional scientific evidence was needed. From that point forward, competent lay testimony, such as that of the police detective, remarking on the substance’s distinctive appearance and texture and identifying it as crack, completed the final link in the evidentiary chain. U.S. v. Ferreras, 192 F.3d 5 (1st Cir. 1999).
1st Circuit holds lab report and police detective’s testimony proved substance was crack. (240) Police found drugs at defendant’s house. The government introduced a lab report stating that the seized drugs had the chemical composition of cocaine base. An experienced police narcotics investigator testified that the hard, rock-like substance was crack. The First Circuit held that lab report and the police detective’s testimony adequately supported the use of the crack penalties. The government laid a proper foundation for the detective’s testimony by introducing a chemical analysis proving that, chemically, the contraband was cocaine base. However, chemical analysis cannot distinguish crack from any other form of cocaine base because crack and all other forms of cocaine base are identical at the molecular level. Thus, no further scientific testimony would have been of any conceivable assistance. The police detective’s testimony was helpful because crack can only be differentiated from other cocaine bases by appearance and texture. The detective was a veteran investigator who worked undercover for several years as both a buyer and a seller and had an intimate familiarity with the crack trade. U.S. v. Robinson, 144 F.3d 104 (1st Cir. 1998).
1st Circuit relies on police affidavit to support school zone enhancement. (240) Defendant was convicted of participating in a conspiracy to possess and distribute heroin. The First Circuit upheld an enhancement for transacting a drug sale in a school zone, based on an affidavit signed by a special agent stating that drug transactions at a particular park took place within 1000 feet of a junior high school. At sentencing, a court may consider evidence that would be inadmissible at trial if the sentencing court finds sufficient indicia of reliability to support its probable accuracy. The affidavit of a law enforcement officer familiar with the location of the drug transaction and the surrounding area is sufficiently reliable that a court can accept it as evidence for sentencing purposes. U.S. v. Berrios, 132 F.3d 834 (1st Cir. 1998).
1st Circuit says crack finding not plain error where no contrary evidence. (240) Defendant was convicted of participating in a conspiracy to possess and distribute heroin. At the time of his arrest, police seized drug paraphernalia, 107.6 grams of crack cocaine and a loaded handgun. The First Circuit held that the government met its burden of proving the seized substance was crack cocaine. Defendant did not argue at trial that the substance was something other than crack, so the court’s findings were reviewed only for “plain error.” There was no plain error here, because defendant offered no evidence to rebut the government’s assertion that the substance was crack. Only if the record clearly showed that the substance could not have been crack would there be plain error. U.S. v. Berrios, 132 F.3d 834 (1st Cir. 1998).
1st Circuit approves pilot increase where defendant steered boat on master’s instructions. (240) Defendant was one of five crewmembers aboard a boat that was intercepted by the Coast Guard attempting to smuggle marijuana from Colombia. The district court enhanced his sentence under § 2D1.1(b)(2)(B) for acting as a “pilot.” Defendant asserted that the enhancement only applies to participants in a position of authority or command, and that he did not possess special navigational rank or skills, but merely steered the vessel on the instructions of the master of the boat. The First Circuit affirmed the enhancement. The dictionary definition of pilot includes a person hired to steer a vessel. Although the act of steering a 40-foot vessel on the high seas might or might not involve a skill obtained through extensive maritime training, the enhancement was not clear error. The enhancement is not limited to those with special command in a criminal enterprise. It only requires control over some mechanical aspect of the vessel’s operation. U.S. v. Guerrero, 114 F.3d 332 (1st Cir. 1997).
1st Circuit agrees conspiracy involved cocaine base rather than cocaine powder. (240) Defendant was a member of a conspiracy that sold cocaine base to an undercover agent on six separate occasions. He argued that the government’s evidence failed to distinguish between cocaine base and ordinary cocaine, and that the jury’s finding of cocaine base rested on untrustworthy evidence. The 1st Circuit upheld the finding that the conspiracy involved cocaine base. First, the judge at sentencing determines whether the substance distributed was cocaine or cocaine base. The court’s finding was supported by the trial testimony of a DEA chemist, who testified about the difference between powder cocaine and cocaine base. Although the chemist did misstate one point, her overall testimony was not confusing or misleading. She stated that she had tested samples from each of the transactions involving defendants, and that each sample contained cocaine base. U.S. v. Munoz, 36 F.3d 1229 (1st Cir. 1994).
1st Circuit rejects downward departure for pharmacists who illegally sold drugs. (240) Defendants, both pharmacists, conspired to dispense about 18,000 pills without proper prescriptions. The district court departed downward because it believed that this fell outside the “heartland” of the unlawful drug-trafficking statute, 21 U.S.C. § 841, but within the “heartland” of an unlawful drug-prescribing statute, 21 U.S.C. § 843. The 1st Circuit reversed, finding the district court misunderstood the difference between the two statutes. The two statutes distinguish between unlawful drug distribution (punishable under § 841) and unlawful record-keeping (punishable under § 843). It is possible that a drug-dispensing pharmacist would not violate § 841 if he believes a customer needs the drugs for legitimate medical treatment. However, where he knows that a customer not only lacks a valid prescription but also will not use the drugs for legitimate medical purposes, then § 841 applies and treats the pharmacist like a pusher. U.S. v. Limberopoulos, 26 F.3d 245 (1st Cir. 1994).
1st Circuit upholds use of drug guideline for felon who unlawfully possessed firearm. (240) Defendant was convicted of being a felon in unlawful possession of a firearm. The district court determined that defendant used the firearm in “committing or attempting” a drug offense, and therefore under the 1987 version of the firearms guideline, § 2K2.1, sentenced defendant under the drug offense guideline, § 2D1.1. The 1st Circuit found that the record supported the district court’s determination. Officers searching defendant’s house found three plastic freezer bags with cocaine residue, a scale commonly used for drug transactions, a magazine folded a special way used for drug sales, some marijuana, inositol powder, $25,000 cash in a couch, $9,000 cash elsewhere in the house, a loaded shotgun and a loaded rifle. Defendant was firing the rifle when officers entered his house. The 1st Circuit also found that in applying the drug guideline, it was proper for the district court to add two points to defendant’s offense level for possession of the guns. The language in the 1987 firearms guideline made it clear that the court is to apply the cross-referenced drug guideline, including any upward adjustment for possessing guns. U.S. v. Wheelwright, 918 F.2d 226 (1st Cir. 1990).
2nd Circuit holds that admission of drug quantity did not waive requirement that drug quantity be charged in indictment. (240) Defendant was indicted for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a), with no particular quantity specified in the indictment. In order to impose a sentence above the statutory maximum for a drug offense involving an indeterminate quantity of drugs, the type and quantity of drugs must be charged in the indictment and submitted to the jury. However, a defendant’s plea allocution effectively waives the requirement of submitting the quantity question to the jury. The Second Circuit held that admission of a drug quantity in a plea allocution does not waive the requirement that a defendant be charged with drug quantity in the indictment. When a defendant has been indicted for a drug crime involving an unspecified quantity of drugs, the defendant cannot be sentenced above the statutory maximum for an indeterminate quantity of drugs, as set forth in § 841(b)(1) (C). U.S. v. Cordoba-Murgas, 422 F.3d 65 (2d Cir. 2005).
2nd Circuit holds that Apprendi does not require proof that defendant knew type and quantity of drugs. (240) Defendant argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the government was required to prove to the jury beyond a reasonable doubt that he knew the type and quantity of drugs involved in his offense, and that the court erred in failing to hold the government to that burden. The Second Circuit disagreed. Apprendi is applicable only where the sentencing factors increase the penalty for a crime beyond the prescribed statutory maximum. Circuit and Supreme Court precedent make clear that imposition of a mandatory minimum sentence that does not exceed the otherwise applicable statutory maximum does not trigger Apprendi’s heightened requirements. See Harris v. U.S., 536 U.S. 545 (2002) and U.S. v. Luciano, 311 F.3d 146 (2d Cir. 2001). Defendant did not present any basis for disturbing the settled principle that drug dealers convicted under § 841(a) need not know the type and quantity of drugs in their possession in order to be subject to sentencing enhancements in § 841(b). U.S. v. King, 345 F.3d 149 (2d Cir. 2003).
2nd Circuit says amendment capping offense level for drug defendants receiving role reduction is not retroactive. (240) Amendment 640 to the Guidelines, which took effect on November 1, 2002, after defendant was sentenced, caps the maximum base offense level under § 2D1.1 at 30 for any defendant who received a mitigating role adjustment under U.S.S.G. § 3B1.2. The Second Circuit held that Amendment 640 is not to be applied retroactively. It is not listed in U.S.S.G. § 1B1.10(c) as an amendment that is to have retroactive effect. Amendment 640 did not make defendant’s sentence “by definition … excessive.” U.S. v. Garcia, 339 F.3d 116 (2d Cir. 2003).
2nd Circuit agrees that police officer could foresee drug transaction in crack house he protected. (240) Defendant, a former police officer, was convicted of aiding and abetting the maintenance of a crack house. The guideline applicable to maintaining a crack house is § 2D1.8. The district court found that defendant “knew that 1213 First Avenue was a crack house in which numerous illegal crack cocaine transactions had occurred,” and that when defendant talked to Wharry on March 8, 2000, and warned her about the police surveillance, he believed “that a drug transaction was or was about to take place in the crack house.” Thus, the court found that defendant was accountable for the 9.5 grams of crack sold to the confidential informant that day “because, based on his knowledge and experience as a police officer, the participants and the entire circumstances by a preponderance of the evidence the quantity of drugs was reasonably foreseeable by him.” The Second Circuit found no clear error in any of these findings. Moreover, there was no merit to defendant’s contention that he was entitled to a four-level reduction under § 2D1.8(a)(2) on the ground that he had no participation in the underlying controlled substance offense other than allowing use of the premises. This reduction is not applicable “unless the defendant initially leased, rented, purchased, or otherwise acquired a possessory interest in the premises for a legitimate purpose.” Note 1 to § 2D1.8. U.S. v. Hamilton, 334 F.3d 170 (2d Cir. 2003).
2nd Circuit rejects increased sentence where prior conviction was under state, not federal, law. (240) Defendant was convicted of using a communication facility to commit a drug trafficking felony, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 843(b). In relevant part, § 843(d)(1) provides for “a term of imprisonment of not more than 4 years….” For an individual with a prior drug conviction under “any … other law of the United States” related to illegal drugs, the maximum term of imprisonment is eight years. Defendant’s prior drug conviction was under New York state law, not federal law. Because defendant had no prior federal drug conviction, the Second Circuit found that the district court’s imposition of eight year terms on each count was improper. U.S. v. Medley, 313 F.3d 745 (2d Cir. 2002).
2nd Circuit holds that amendment applies to choice of applicable guideline, not selection of base offense level. (240) Prior to Amendment 591, a court could consider actual (i.e. relevant) conduct when selecting the applicable offense guideline section. Amendment 591, effective November 1, 2000, requires that the initial selection of the offense guideline be based only on the statute of conviction rather than on judicial findings of actual conduct that will never be made by a jury. Defendant, convicted of drug charges in 1990, moved under 18 U.S.C. § 3582(c) to modify his sentence, arguing that the selection of base offense level 36 (under guideline § 2D1.1) was impermissible under Amendment 591 because it was made on the basis of the judge’s finding of drug quantity, rather than on the basis of the conduct underlying the offense of conviction. The Second Circuit rejected the petition, which confused (1) the applicable offense guidelines with (2) the base offense level within that applicable offense guideline. The plain wording of Amendment 591 applies only to the choice of the applicable offense guideline, not to the subsequent selection of the base offense level. U.S. v. Rivera, 293 F.3d 584 (2d Cir. 2002).
2nd Circuit reverses where court failed to sentence for drug that triggered lowest sentencing range. (240) In U.S. v. Barnes, 158 F.3d 662 (2d Cir. 1998), the court held that where a jury returns a general guilty verdict on a single count of conspiracy involving multiple controlled substances, the district court must sentence the defendant as if convicted of a conspiracy involving only the drug that triggers the lowest statutory sentencing range. The Second Circuit held that defendant’s sentence here violated Barnes. Although the district court had found the jury would have had no basis for finding a marijuana conspiracy rather than a cocaine conspiracy, the panel disagreed, finding sufficient trial evidence that defendant was involved in a marijuana conspiracy. One witness testified to buying marijuana from defendant on one or two occasions. A second witness testified that he purchased marijuana from defendant “on a number of occasions,” from “around 1983 until 1990,” thereby demonstrating a course of dealing in marijuana spanning a number of years. The same witness testified that around 1988 or 1989 he began purchasing quarter-pound quantities of marijuana from defendant. The district court’s charge to the jury, using the disjunctive “marijuana or cocaine,” also left open the possibility that the jury may have convicted defendant of a conspiracy to distribute only marijuana. The error was plain and affected defendant’s substantial rights. U.S. v. Zillgitt, 286 F.3d 128 (2d Cir. 2002).
2nd Circuit holds that statute authorized incarceration for heroin importation. (240) Defendant pled guilty to importation of heroin, in violation of 21 U.S.C. § 952(a). He argued that his 30-month sentence should be vacated because § 952(a) does not authorize the imposition of a term of imprisonment. The Second Circuit disagreed. Section 952(a) must be read in concert with 21 U.S.C. § 960. Section 952(a) prohibits the importation of schedule I narcotics, which includes heroin. Section 960(a) in turn states that a knowing and intentional violation of 21 U.S.C. § 952 “shall be punished as provided in subsection (b) of this section.” Section 960(b) then sets forth terms of imprisonment and fines based on specified or unspecified quantities of drugs at issue. 21 U.S.C. § 960(b). Therefore, the district court properly sentenced defendant to a term of incarceration for importing heroin in violation of § 952(a). U.S. v. Chavez, 267 F.3d 76 (2d Cir. 2001).
2nd Circuit holds that any error in drug quantity for CCE defendant was harmless. (240) Defendant, convicted of conducting a continuing criminal enterprise, argued that the sentencing court improperly attributed 32 kilograms of cocaine to him. The Second Circuit ruled that any error was harmless because § 2D1.5 provides that a defendant convicted of a CCE will be assigned the greater of two base offense levels—either 4 plus the offense level from § 2D1.1, or 38. Thus, even if the sentencing court erred in its drug quantity determination, and the offense level under § 2D1.1 was lower than 34, defendant’s offense level would still be 38. U.S. v. Joyner, 201 F.3d 61 (2d Cir. 2000).
2nd Circuit rules state offense occurred before last overt act of CCE. (240) From 1989 to 1995, defendant operated a drug trafficking ring. He was convicted of engaging in a continuing criminal enterprise (CCE), and related charges. Defendant argued that a 1994 state court drug offense should not have been included in his criminal history because it was part of his CCE offense. Note 3 to § 2D1.5 provides that a sentence for a conviction sustained prior to the “last overt act of the instant offense” should be considered a prior sentence under § 4A1.2(a)(1) and not part of the CCE offense for criminal history purposes. Defendant claimed that remand was necessary because the district court made no finding as to when the last overt act of the CCE occurred. The Second Circuit disagreed. The jury convicted defendant of a drug crime committed in October 1994 that was in furtherance of the enterprise. Because defendant’s state offense and conviction occurred before this overt act, the state conviction was properly counted. U.S. v. Joyner, 201 F.3d 61 (2d Cir. 2000).
2nd Circuit says court correctly sentenced defendant for crack rather than powder cocaine. (240) At sentencing, the district court found that defendant was responsible for distributing “at least 50 kilograms of cocaine and/or cocaine base.” The Second Circuit ruled that the district court correctly sentenced defendant for crack rather than powder cocaine. First, in his PSR objection letter, defendant did not challenge the PSR’s determination that he was responsible for distributing cocaine base. Second, defendant did not object at sentencing to the court’s reference to drugs distributed on his drug block as crack. Third, the evidence clearly demonstrated that the drug block distributed crack. For instance, defendant’s primary bagger testified that the operation sold crack and he typically manufactured it with a co-conspirator. Finally, in proving a substance is crack, the government is not required to show that the cocaine was processed with sodium bicarbonate. U.S. v. Diaz, 176 F.3d 52 (2d Cir. 1999).
2nd Circuit does not require lesser penalty despite conviction of lesser-included offense. (240) Defendant was convicted by a jury of possession of crack cocaine and was sentenced to 121 months. The Probation Department recommended a downward departure. Defendant argued that the court erred in failing to follow this recommendation because he was subject to the same sentence he would have received if he had been convicted of the “greater charge” of distribution. He believed he was entitled to a lesser penalty for conviction of the lesser possession charge. The Second Circuit found the claim without merit. The fact that defendant might have received the same penalty if he had been convicted of distribution was irrelevant. Possession of crack cocaine is a lesser-included offense of distribution in the sense that all of the elements necessary to a conviction for possession are also necessary to a conviction for distribution. This does not mean that possession offenses must be penalized more lightly than distribution offenses. The Probation report was only a recommendation and was not binding on the court. The decision not to depart was not appealable. U.S. v. Welbeck, 145 F.3d 493 (2d Cir. 1998).
2nd Circuit says reduction that refers to safety valve is not limited to mandatory minimum. (240) Section 2D1.1(b)(4) provides for a two level reduction if the defendant’s offense level is greater than 26 and “the defendant meets the criteria set forth in subdivisions (1)‑(5) (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases).” The district court ruled that the § 2D1.1(b)(4) reduction is not available where the defendant is not subject to a statutory mandatory minimum sentence. The Second Circuit ruled that § 2D1.1(b)(4) applies to all defendants, regardless of whether they are subject to a mandatory minimum. The section’s reference to “Limitation on Applicability of Statutory Minimum Sentences” is merely a parenthetical recitation of the title of § 5C1.2. Had the Sentencing Commission intended to limit it to defendants who are subject to a mandatory minimum sentence, it could have done so explicitly. U.S. v. Osei, 107 F.3d 101 (2d Cir. 1997).
2nd Circuit says amendment to commentary does not affect prior holding that cocaine base means more than crack. (240) 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 upholds leadership enhancement where CCE offense was not basis for combined offense level. (240) Defendant was convicted of multiple drug offenses, including running a continuing criminal enterprise (“CCE”). He argued that the district court misapplied the multicount provisions of the guidelines. He contended that because he was convicted of the CCE offense, which includes a leadership role within its elements, he could not receive a leadership enhancement under section 3B1.1(a). The 2nd Circuit found the multi-count provision was correctly applied. The district court treated all 14 counts as part of one “group,” and then aggregated the drug quantities under the non-CCE counts. Because the offense level produced by the aggregated drug offenses (40) was higher than that produced by the CCE count (32), the court used the offense level for the non-CCE counts as the combined offense level for the group. Under section 3D1.3(b), the court properly used the offense level for the substantive offenses because it was greater than the offense level for the CCE offense. U.S. v. Eng, 14 F.3d 165 (2nd Cir. 1994).
2nd Circuit says guideline amendment defining cocaine base as crack will not affect its statutory interpretation. (240) In U.S. v. Jackson, 968 F.2d 158 (2nd Cir.), the 2nd Circuit held that the term “cocaine base,” as used in 21 U.S.C. section 841 and guideline section 2D1.1, should be interpreted according to its scientific definition (a substance that produces a salt when combined with an acid). Thus the term was not limited to crack, a common form of cocaine base. A proposed amendment to the commentary to section 2D1.1(c) limits cocaine base to crack. The 2nd Circuit noted that if the amendment became effective, it would be bound, for purposes of interpreting section 2D1.1, by the commentary’s definition of cocaine base. However, the amendment would not revise the statutory interpretation the court already made in Jackson. Thus, because of the difference in the definitions of cocaine base in the statute and the guidelines after the amendment, defendants sentenced for cocaine base that is not crack often will be sentenced under the statutory mandatory minimum to a higher sentence than would have been imposed under the guidelines. U.S. v. Palacio, 4 F.3d 150 (2nd Cir. 1993).
2nd Circuit affirms use of narcotics guidelines for defendant who conspired to steal drugs. (240) Defendant and some associates conspired to break into a drug dealer’s apartment and steal cocaine. The 2nd Circuit affirmed that defendant was properly sentenced under the narcotics guidelines. Although his crime did not involve a typical narcotics transaction, he was properly convicted of conspiracy and attempt to possess and distribute cocaine. The fact that defendant could also have been indicted for attempted larceny did not change the analysis. U.S. v. Howard, 998 F.2d 42 (2nd Cir. 1993).
2nd Circuit holds court must sentence for “cocaine base” even though substance was not “crack.” (240) In U.S. v. Jackson, 768 F.Supp. 97 (S.D.N.Y. 1991), the district court held that the enhanced penalty provisions for crack cocaine in 21 U.S.C. section 841(b) and guideline section 2D1.1 were void for vagueness both on their face and as applied because they did not define the term “cocaine base.” The court was influenced by the fact that the chemist who identified the substance as “cocaine base” also stated that the substance was not pure enough to be used as “crack.” The 2nd Circuit reversed, noting that the provisions did not implicate First Amendment freedoms, and therefore they were not void on their face. With respect to defendant, the court found that “cocaine base” that is not pure enough to be used as “crack” still falls within the meaning of “cocaine base.” Expert testimony established that there is an undisputed definition of “cocaine base,” and that the substance in question met that definition. Although the substance was not crack, the court declined to equate cocaine base with crack. U.S. v. Jackson, 968 F.2d 158 (2nd Cir. 1992).
3rd Circuit uses drug guideline for police officer who violated civil rights by planting drugs on suspect. (240) Defendant, a former police officer, falsified evidence and was convicted of civil rights violations. He argued that the court erred in applying the drug distribution guideline, § 2D1.1, to his civil rights violations because he was not convicted of offenses involving the distribution of drugs. The Third Circuit ruled that the district court correctly found that defendant engaged in the distribution of narcotics, and therefore the application of § 2D1.1 was proper. See § 2H1.1(a) (base offense level should be the greatest of several options, including the offense level applicable to any underlying offense). The court agreed with U.S. v. Cortes–Caban, 691 F.3d 1 (1st Cir. 2012), a recent case which held that police officers who conspired to plant drugs on individuals to fabricate criminal offenses were properly convicted of drug charges under 21 U.S.C. §§ 841(a) and 846. A “distribution” encompasses the transfer of a controlled substance from one person or place to another, and thus includes the planting of controlled substances on individuals to facilitate false arrests. U.S. v. Figueroa, 729 F.3d 267 (3d Cir. 2013).
3rd Circuit says increase requires only possession, not intent to distribute, within 1000 feet of protected location. (240) Defendant was convicted of possession with intent to distribute 500 grams or more of cocaine in a protected area, in violation of 21 U.S.C. § 860(A). The Third Circuit upheld a two-level enhancement under § 2D1.2(a)(1) for possession of a controlled substance in a protected location with intent to distribute. The panel rejected defendant’s argument that the enhancement was inapplicable because there was no evidence that defendant intended to distribute any drugs within 1000 feet of a school (although he did possess them there). See U.S. v. Rodriguez, 961 F.3d 1089 (3d Cir. 1992). (section 860 applies to a defendant who possesses drugs within 1000 feet of school, even if defendant did not intent to distribute them there). The enhancement did not require that the defendant engage in the actual sale or distribution of drugs within 1000 feet of the protected location. U.S. v. Mundy, 621 F.3d 283 (3d Cir. 2010).
3rd Circuit holds that drug conspirator cannot exclude personal use amounts. (240) Defendant was convicted of conspiracy to distribute methamphetamine. He argued that the district court erred by failing to exclude from the quantity of drugs seized an amount that he intended to keep for personal consumption. When a defendant is convicted of drug distribution, ordinarily a district court should exclude from the total drug quantity any amount possessed for his personal consumption. The Third Circuit found the situation different when a defendant is convicted of conspiring to distribute drugs. Nothing in the Guidelines suggests that drugs a defendant earmarks for his personal use should be deducted from the total quantity involved in a conspiracy. Excluding the quantity of drugs retained for personal use does not make sense when a conspiracy has been proved. U.S. v. Iglesias, 535 F.3d 150 (3d Cir. 2008).
3rd Circuit holds that release of hazardous substance during theft did not warrant enhancement. (240) Defendant and two others stole anhydrous ammonia from an agricultural supply business. The anhydrous ammonia was to be used in the manufacture of methamphetamine. During the theft, anhydrous ammonia vapor was released from the tanks, burning defendant’s eyes and throat. The next day, he was arrested. Section 2D1.12(b)(2) provides for a two-level increase when the offense involves an “unlawful discharge, emission, or release” into the environment” of a “hazardous substance.” The Third Circuit reversed the § 2D1.12(b)(2) increase, concluding that defendant’s lack of authority to release anhydrous ammonia did not render the release that occurred during the theft “unlawful.” Under Note 3, § 2D1.12(b)(2)’s enhancement applies if the release of anhydrous ammonia was a “violation covered by” one of three enumerated environmental statutes. The district court stated that it did not find that the release was unlawful under any of the cited statutory provisions, but because defendant, having stolen the anhydrous ammonia, had no “authority to be releasing it.” This interpretation would render Note 3 meaningless. U.S. v. Landmesser, 378 F.3d 308 (3d Cir. 2004).
3rd Circuit says court properly aggregated drug quantities involved in conspiracy. (240) Defendant argued that the district court erred in finding that more than 500 grams of methamphetamine were involved in the conspiracy because no single sale or transaction involved over 500 grams. He argued that § 841(b)(1)(A) penalizes a “violation” of § 841(a) and that each sale or transaction should be viewed as a separate violation. See U.S. v. Winston, 37 F.3d 235 (6th Cir. 1994) (court may not aggregate multiple drug transaction in determining amount of drugs involved for § 841(b) purposes). The Third Circuit found Winston did not extend to multiple drug transactions as part of a conspiracy. Here, all eight drug transactions comprised the conspiracy to which defendant pled guilty. Conspiracy is a single, unified offense. Moreover, a sentence in a criminal conspiracy is based upon all relevant conduct and not merely offense conduct. Therefore, in computing defendant’s sentence under the guidelines, the district court was entitled to take into account the 500 grams of meth mixture involved in the conspiracy. U.S. v. Gori, 324 F.3d 234 (3d Cir. 2003).
3rd Circuit holds that statutory definition of “cocaine base” includes more than crack. (240) Under the Sentencing Guidelines applicable at the time of defendant’s sentencing, “cocaine base” had to be crack for a defendant to be sentenced under the cocaine base guideline. This specific definition was promulgated by the Sentencing Commission through a November 1993 amendment to the guidelines, and was subsequently approved by Congress. The circuits have reached different conclusions on the question of whether the Sentencing Commission’s definition of “cocaine base” should be adopted as the statutory meaning of that drug under 21 U.S.C. § 841(b)(1). Compare U.S. v. Palacio, 4 F.3d 150 (2d Cir. 1993) (holding that amendment could not override earlier interpretations of drug statute as encompassing all forms of cocaine base) with U.S. v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994) (holding that statutory definition of “cocaine base” had been amended by the Sentencing Commission because Congress permitted the amendment to become effective with no change). The Third Circuit, agreeing with the Second Circuit, held that while the term “cocaine base” means only crack when a sentence is imposed under the Sentencing Guidelines, “cocaine base” encompasses all forms of cocaine base with the same chemical formula when the mandatory minimum sentences under 21 U.S.C. § 841(b)(1) are implicated. Accordingly, defendant’s transportation of a substance that was cocaine base but not crack subjected him to the statutory mandatory minimum for cocaine base. U.S. v. Barbosa, 271 F.3d 438 (3d Cir. 2001).
3rd Circuit says defendant responsible for type of drug he imported, despite mistake as to drug identity. (240) Defendant was arrested for importing 882 pellets of heroin, which he had swallowed while in Aruba and expelled in a hotel in Philadelphia. The DEA later determined that the pellets contained cocaine base, not heroin. Defendant argued that it was improper to sentence him based upon cocaine base, when he believed that he was carrying heroin. Federal appellate courts have uniformly ruled that a defendant should be held accountable for the substance he actually imported, notwithstanding his reasonable mistake as to drug identity. See, e.g., U.S. v. Strange, 102 F.3d 356 (8th Cir. 1996); U.S. v. Salazar, 5 F.3d 445 (9th Cir. 1993). Drug dealers assume the risk of what kinds and amounts of controlled substances they carry. The Third Circuit agreed with these cases, finding the government’s participation here insufficient to distinguish this case. Defendant was not concerned in any way as to how the drugs were presented or even as to the amount of identity of the drug he would be ingesting. He was responsible for the full consequences of his illegal activity. U.S. v. Barbosa, 271 F.3d 438 (3d Cir. 2001).
3rd Circuit applies § 2D1.1, not § 2D1.2, where defendant not convicted of and did not stipulate to schoolyard offense. (240) Defendant was involved in a drug conspiracy that distributed drugs within 1000 feet of various public and parochial schools. She pled guilty to drug charges, but was not charged with violating or conspiring to violate 21 U.S.C. § 860, which prohibits drug distribution “in or near” schools. Nonetheless, the district court sentenced her under USSG § 2D1.2, which deals with drug offenses committed near “protected locations.” Defendant argued that § 2D1.2 was inapplicable because Appendix A (the “Statutory Index”) required the use of § 2D1.1 rather than § 2D1.2. Joining the majority of circuits to decide this issue, the Third Circuit held that § 2D1.1, rather than § 2D1.2, is applicable to a defendant who has not been convicted under § 860 nor has stipulated to having committed a drug offense near a school. Although the Statutory Index is not definitive, it should only be disregarded in the “atypical case” in which the guideline specified in the Statutory Index is inappropriate. This was not an atypical case. Defendant did not stipulate to distribution within a school zone. Simply agreeing, when asked, with the location in which the conspiracy operated did not constitute a stipulation. U.S. v. Watterson, 219 F.3d 232 (3d Cir. 2000).
3rd Circuit says use of AEDPA gatekeeper provisions did not violate ex post facto clause. (240) Defendant filed a second § 2255 motion after AEDPA’s effective date, claiming that the government had failed to prove that his crime involved crack rather than another form of cocaine base. Defendant’s first § 2255 motion was filed in 1991, before the AEDPA took effect. The Third Circuit held that applying the AEDPA’s gate keeping provision to defendant’s second § 2255 motion would not have a impermissible retroactive result since the district court would have denied defendant’s second § 2255 motion under pre-AEDPA law. See In re Minarik 166 F.3d 591 (3d Cir. 1999) (relevant question is whether the application of the gate keeping provisions would produce a genuine retroactive effect in the particular case at hand, not whether it would generally do so in a broader class of cases). In the present case, although defendant had “cause” for not raising the crack/cocaine base distinction in his first § 2255 motion (the legal distinction between “crack” and “cocaine base” did not exist for sentencing purposes until November 1, 1993), he could not establish “prejudice.” Defendant waived the argument that he pled guilty to distributing a form of cocaine base other than crack. Moreover, the government proved that the substance was crack. Counsel was not ineffective for failing to raise this issue, since defense counsel has no general duty to anticipate changes in the law. U.S. v. Roberson, 194 F.3d 408 (3d Cir. 1999).
3rd Circuit agrees that drugs were cooked into crack. (240) Defendant argued that the district court erred in finding that the 1.7 kilograms of cocaine discussed in a recorded conversation on November 28 was crack rather than powder cocaine. The Third Circuit upheld the crack finding. It was clear that all of the testifying co-conspirators believed that defendant cooked cocaine into crack. Two witnesses described how defendant cooked the cocaine with baking soda. An experienced FBI agent testified that what the witnesses had seen was a common way to manufacture crack. Two additional witnesses testified that defendant distributed both powder cocaine and crack. The district court properly found that the 1.7 kilograms of cocaine was in crack form, based on defendant’s use of the expression “doing up” or “doing something,” which meant cooking the cocaine into crack. Moreover, the weights defendant spoke of were consistent with cooking powder into crack. Defendant talked of getting 900 from one half kilogram and either 875 or 823 from the other half kilogram of powder cocaine after he completed the cooking and whipping process. U.S. v. Gibbs, 190 F.3d 188 (3rd Cir. 1999).
3rd Circuit finds sufficient evidence that substance was crack. (240) The government called three witnesses to establish that the substance found in defendant’s apartment was crack. The first witness, the supervisor of the police department’s chemical lab, produced the lab’s chemical analysis of defendant’s drugs. The report stated that one of the drugs was cocaine base and the other was cocaine. The supervisor explained that the report referred to cocaine base rather than “crack” since the latter term was not generally used in the lab. The second witness, an experienced narcotics detective, testified that he seized from defendant’s apartment four bags containing an off-white beige substance, and an additional three bags containing a white powder. He further testified that the off-white beige substance, which was harder and off-color compared to the powder, appeared to be crack. The third witness, an experienced narcotics detective who had been present during the previous testimony, testified that, based on his experience, the item referred to as cocaine base would qualify as “crack” on the street. The Third Circuit held that the government established that the cocaine base seized from defendant’s apartment was crack. There was little doubt considering the color, texture, and circumstances that the cocaine base was crack. One hundred percent certainty is not required, nor is a precise chemical analysis. U.S. v. Holman, 168 F.3d 655 (3d Cir. 1999).
3rd Circuit says court should have used guideline for schoolyard offense, not CCE offense. (240) Defendant was convicted of engaging in a Continuing Criminal Enterprise, distributing cocaine near a school and other drug related counts. The government argued that defendant should be sentenced under § 2D1.2, the guideline for distributing drugs near a school, because it resulted in the highest offense level (43). The district court, however, found that the CCE count was a more serious offense, and applied § 2D1.5, which carries an offense level of 42. The Third Circuit held that the court should have applied § 2D1.2 because it carried the highest offense level. The counts were grouped under § 3D1.2(d), which provides that the offense guideline that results in the highest offense level should be used. The district court’s perception of the seriousness of the crime did not permit it to disregard the explicit instructions in the guidelines. Even assuming it is improper to impose a higher penalty for a “lesser-included offense,” defendant’s conviction for distributing drugs near a school was not a lesser-included offense of the CCE count. U.S. v. Riddick, 156 F.3d 505 (3d Cir. 1998).
3rd Circuit holds testimony of police officer and chemist established substance was crack. (240) Defendant claimed that he should not have been sentenced under the harsher crack penalties because the government failed to prove by a preponderance of the evidence the substance recovered from defendant was crack. Although a chemist identified the contraband as cocaine base, she did not perform a test to determine whether it contained sodium bicarbonate. She also testified that crack generally is sold in vials or plastic bags, as was the substance in question here. She admitted that she had very little experience in distinguishing between different forms of cocaine base, and she could not say whether the substance was crack. However, an experienced police sergeant identified one of the three substances for which defendant was sentenced as crack. The Third Circuit held that the court did not abuse its discretion in ruling the government met its burden of proving the substance was crack. However, as in U.S. v. Roman, 121 F.3d 136 (3d Cir. 1997), ideally the government should aspire to provide a higher quality of proof than offered here. U.S. v. Dent, 149 F.3d 180 (3d Cir. 1998).
3rd Circuit rules government just barely” met its burden of proving drug was crack. (240) Defendants pled guilty to cocaine base offenses. They argued that the government did not prove that the controlled substance involved in their offense was crack. To meet its burden, the government only presented the testimony of the police officer assigned to the case. The officer had 12 years experience in investigating crack cocaine offenses and had trained state and federal narcotics officers. The officer testified that the substance seized from defendants was crack. His conclusion was based solely on the way the substance was packaged–in vials with color caps. He testified that this is the way crack is typically packaged for sale in Philadelphia, and that powder cocaine, in contrast, is usually packaged in zip lock bags. The Third Circuit held that the government just barely” met its burden of proving the seized substance was crack. Given the police officer’s experience and expertise, the record adequately supported the district court’s finding that the controlled substance was crack cocaine. However, in a footnote, the court expressed concern over the manner in which the government chose to prove the substance involved was crack. The government should take steps to provide a quality of proof that is consistent with the seriousness of the consequences.” U.S. v. Roman, 121 F.3d 136 (3d Cir. 1997).
3rd Circuit says court, not jury, determines type of drug involved in § 841(a)(1) offense. (240) A jury convicted defendant of distributing a controlled substance in violation of § 841(a)(1). The district court sentenced him for distributing cocaine base rather than cocaine powder. The Third Circuit held that the sentencing court, rather than the jury, determines the nature of the controlled substance involved in a § 841(a) offense. Previous cases have held that the amount of drugs involved is a sentencing factor for the judge rather than an element of the offense for the jury. This means that the type of drug involved is also a sentencing factor. Therefore, the government need only prove it by a preponderance of the evidence. The government met this burden because a laboratory analysis established that the substance involved in defendant’s offense was cocaine base. U.S. v. Lewis, 113 F.3d 487 (3d Cir. 1997).
3rd Circuit relies on defendant’s admissions during plea colloquy to sentence for crack cocaine. (240) At sentencing, the district court found that the substance involved in one count was crack cocaine. Defendant claimed that the lab report might be inaccurate because it inconsistently stated that the substance was “cocaine base” and “a powder.” The Third Circuit found that the district court properly relied on defendant’s admissions during the plea colloquy to determine that the substance was crack cocaine. At the plea hearing, the government represented the substance was crack. When asked by the court if he disagreed with the government’s account, defendant did not deny that the substance was crack. He also said he understood the factual basis for the plea. Admissions to the court by a defendant during a guilty plea colloquy can be relied upon by the court at sentencing. U.S. v. Powell, 113 F.3d 464 (3d Cir. 1997).
3rd Circuit requires proof that cocaine base was crack before enhanced penalties apply. (240) Defendant sold cocaine base. Based on a 1993 amendment to § 2D1.1 which states that cocaine base means “crack,” defendant argued that crack is the only form of cocaine base subject to the 100 to sentencing ratio, and that the government must prove by a preponderance of the evidence that the particular form of cocaine base was crack. Although defendant admitted in the plea colloquy that he sold crack, the Third Circuit followed U.S. v. Munoz‑Realpe, 21 F.3d 375 (11th Cir. 1994), and held that the government must prove that the form of cocaine base is crack. Defendant’s affirmative response to the government’s description of the crime during the plea colloquy did not constitute an admission by defendant that he possessed and sold crack. The government failed to prove that the substance defendant sold was crack and therefore the enhanced sentence was error. U.S. v. James, 78 F.3d 851 (3d Cir. 1996).
3rd Circuit says defendant could foresee use of military aircraft to transport drugs. (240) Defendant conspired to import more than 500 grams of cocaine into the U.S. He received a § 2D1.1(b)(2) enhancement for importing a drug using an aircraft other than a regularly scheduled commercial air carrier. The Third Circuit affirmed, since defendant could foresee his co-conspirator’s use of a military aircraft to import the drugs. Defendant was convicted of conspiracy to import cocaine, and was liable for all the foreseeable acts of his co-conspirator in furtherance of the conspiracy. Defendant knew his co-conspirator was going to Panama on a military aircraft. It was certainly foreseeable that the co-conspirator would return on one as well. The use of the military aircraft was clearly in furtherance of the cocaine conspiracy because it was an integral part of the plan to import cocaine into the U.S. U.S. v. Bethancourt, 65 F.3d 1074 (3d Cir. 1995).
3rd Circuit rules that guidelines do not preclude departure based on quantity in drug possession cases. (240) The district court considered the quantity (10 grams) of the drugs possessed by the defendant when it departed by 10 months from the applicable range. The Third Circuit held that such consideration was proper because the commentary to § 5K2.0 indicates that the Commission’s failure to reject a particular factor permits, rather than precludes, consideration of that factor in imposing sentence. The Commission neither included nor excluded quantity in the formulation of the guidelines for possession charges. Thus the sentence was affirmed because the reasons for and the length of the 10-month departure were not unreasonable. U.S. v. Ryan, 866 F.2d 604 (3rd Cir. 1989).
4th Circuit holds that 12-month sentence for dispensing anabolic steroids and human growth hormone was reasonable. (240) Defendant, a medical doctor, participated in a seven-year conspiracy to distribute and dispense anabolic steroids and human growth hormone. The 2004 Sentencing Guidelines, which did not contain any provision addressing the illegal distribution of human growth hormone and certain forms of anabolic steroids, provided for an offense level of 6, for a sentencing range of zero to six months. The district court imposed a variance sentence of 12 months and one day, citing defendant’s elaborate efforts to conceal his wrongdoing, his cavalier attitude toward the use of steroids, the scope of the offense, the fact that the guideline sentence did not reflect the seriousness of the offense (since the guidelines did not address human growth hormone), defendant’s dispensing of steroids to an overweight teenager, a particularly vulnerable victim, defendant’s dispensing of steroids to professional athletes, and defendant’s lack of remorse. The Fourth Circuit ruled that the 12-month and one day sentence was reasonable. This conclusion was reinforced by the fact that the same offense would result in a guideline range of 15-21 months under the current version of the guidelines. U.S. v. Shortt, 485 F.3d 243 (4th Cir. 2007).
4th Circuit holds that drug sales while in prison awaiting trial were not relevant to charged offense. (240) While incarcerated in Kentucky awaiting trial on drug charges in West Virginia, defendant became involved in a scheme to deal marijuana and Xanax pills within the prison. In sentencing defendant for the original drug charges, the district court applied a two-level enhancement under § 2D1.1(b)(3), finding that the object of his offense was to distribute drugs in a prison. Defendant argued that the increase was improper because the object of his offense was to sell drugs in West Virginia, not the detention center in Kentucky. The Fourth Circuit agreed. Defendant was charged with selling crack in West Virginia. The object of that offense was not to distribute controlled substances in a correctional facility. Defendant’s sale of drugs while in the detention center did not constitute relevant conduct. While the offenses were similar in that they both involved the sales of drugs, none of the other factors supported a finding of relevant conduct. The sales had different customers, different accomplices, different methods, and different purposes, and took place a year apart. U.S. v. Dugger, 485 F.3d 236 (4th Cir. 2007).
4th Circuit holds that decision to aggregate drug quantities involved in separate charges was reasonable. (240) Defendant was involved in three separate drug transactions and pled guilty to a three-count indictment. Following § 3D1.2, the district court totaled the cocaine base in all three transactions, resulting in an offense level of 32, and sentenced defendant to 97 months, the bottom of the advisory guideline range. The judge rejected defendant’s request not to apply § 3D1.2’s drug quantity grouping provision, finding that suggestion would “gut … the guidelines.” The Fourth Circuit held that the district court’s decision to aggregate the drug quantities in the three drug charges was not unreasonable. Guideline sentences are presumptively reasonable because of the legislative and administrative process by which they were created. In addition, guidelines sentences are based on individualized fact-finding which takes place in a process that invites defendants to raise objections and requires courts to resolve them. The court here properly considered the § 3553(a) factors, even thought it did not address each factor on the record. The court undertook a detailed inquiry into the various circumstances bearing upon defendant’s sentence, including his character and his criminal history. U.S. v. Johnson, 445 F.3d 339 (4th Cir. 2006).
4th Circuit holds that judge’s assurances during plea colloquy modified plea agreement. (240) Defendant sought to contest the drug weight attributed to him at sentencing, but the district court refused to hear evidence on this point, ruling that defendant’s plea agreement precluded him from doing so. The Fourth Circuit held that the terms of the plea agreement were modified by the district court’s repeated assurances during the plea colloquy that defendant would have a later opportunity to challenge the drug weight. Although the plea agreement limited defendant’s ability to contest the drug weight attributed to him, at his plea colloquy the judge repeatedly assured defendant that he would have the opportunity at sentencing to contest the drug weight. The government not only failed to clarify or correct these statements, but it appeared to buttress the court’s interpretation of the agreement, stating that “there will be a more full hearing at sentencing concerning the drug weight issue.” Defendant clearly relied to his detriment on the explanations he was given, since he claimed at the plea colloquy that his only disagreement with the government was to the total quantity of drugs involved. U.S. v. Wood, 378 F.3d 342 (4th Cir. 2004).
4th Circuit upholds cross-reference for death during drug offense. (240) Evidence at sentencing showed that defendant shot and killed Johnson during a drug-related altercation. Finding the evidence of the killing persuasive, even though defendant was not indicted and convicted of murder, the sentencing court set the base offense level of 43, relying on § 2D1.1(d)(1) (death during drug offense) in combination with § 2A1.1 (murder). Defendant argued that this was inappropriate, given that (a) he was never tried by a jury and convicted of murder, and (b) even if the standard for proving murder was more relaxed in the sentencing context, there still was not enough evidence to prove he actually committed the murder. The Fourth Circuit upheld the cross-reference, finding that a preponderance of the evidence supported the court’s finding that defendant killed Johnson. At sentencing, a deputy testified to statements made by three witnesses, all of whom implicated defendant in the killing. Defendant’s “real complaint is that he was, in effect, tried and sentenced for first degree murder without the benefit of a jury finding the same beyond a reasonable doubt.” However, this method of “real offense” sentencing does not offend the Constitution. U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002).
4th Circuit uses cross-reference for murder committed during relevant conduct. (240) Defendant was part of a drug distribution ring that added to its inventory by robbing other drug dealers. In one of the robberies, defendant shot and killed two people. Defendant was convicted of drug charges. At sentencing, the district court applied the murder cross-reference in § 2D1.1(d) (1), and the Fourth Circuit affirmed. The string of thefts were part of the same course of conduct or common scheme or plan, and hence relevant conduct. Because the murders were committed during the course of one of the thefts, they too were relevant conduct. The thefts occurred in May 1998, November 1998, December 1998, and March 1999. Although the six-month time lapse between the May 1998 and November 1998 thefts made the latter thefts somewhat remote, the sheer repetitive nature of the conduct – four thefts in 11 months – tended to support the court’s findings that the thefts were part of the same course of conduct. Moreover, the thefts were very similar. Each theft was perpetrated for the purpose of stealing drugs from the residence of another drug dealer. Each of the thefts involved defendant and Hudson, who recruited others to assist them. In three of the thefts, the participants were armed. These are precisely the sort of similarities, common victims, common purpose, common accomplices, and similar modus operandi contemplated by § 1B1.3. U.S. v. Pauley, 289 F.3d 254 (4th Cir. 2002).
4th Circuit upholds use of murder guideline for drug conspirators. (240) The guidelines direct that in sentencing drug offenders, the court must enhance the sentence when a killing occurs in the course of a drug trafficking conspiracy “under circumstances that could constitute murder under 18 U.S.C. § 1111.” USSG § 2A1.1. The jury’s acquittal of defendant on the murder count in the indictment did not prevent the sentencing court from considering conduct underlying the charged drug crimes so long as such conduct has been proved. The Fourth Circuit affirmed the district court’s use of § 2A1.1 here. Even if the clear and convincing evidence standard applied, as contended by defendant, the government produced sufficient evidence that defendant fired the fatal shot, and did so in furtherance of his drug conspiracy. The panel also ruled that co-conspirator Jones was properly sentenced under § 2A1.1. Jones’s role as an “enforcer,” who inflicted beatings on those who interfered with the workings of the drug conspiracy, made the murder foreseeable to him. U.S. v. Montgomery, 262 F.3d 233 (4th Cir. 2001).
4th Circuit holds drug quantity and type are elements of § 841 but Apprendi error was not “plain.” (240) In U.S. v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc) and U.S. v. Angle, 254 F.3d 514 (4th Cir. 2001) (en banc), the Fourth Circuit held that drug quantity and type are elements of 21 U.S.C. § 841. However, the failure to instruct the jury on an element of an offense is not error per se. Neder v. U.S., 527 U.S. 1 (1999). Defendant did not raise this issue in the district court, so it was reviewable only for “plain error.” The Fourth Circuit found no plain error because of the “uncontested and overwhelming evidence” implicating defendant with “several times more than 50 kilograms of marijuana.” Thus, defendant was unable to demonstrate that his 360-month sentence exceeded the statutory penalty that would have been authorized by the jury verdict absent the erroneous jury instruction. U.S. v. Stewart, 256 F.3d 231 (4th Cir. 2001).
4th Circuit remands to decide quantity of drugs sold near protected location. (240) Defendant was involved in a drug conspiracy that sold drugs at two public housing projects, from a home located within 1000 feet of a playground, and at an apartment complex. Section 2D1.2 provides for a base offense level of the greater of two plus the offense level for the drugs sold near a protected location, or one plus the offense level for the total quantity of drugs. The district court applied the two-level enhancement without finding that all of the drugs were distributed within a protected area. The Fourth Circuit vacated and directed the court to address the quantity sold near the protected area. Only three of the four areas from which the conspiracy sold drugs were in a protected area. Since the record did not show that the apartment complex was a protected area, or that the drugs attributed to defendant included amounts distributed from this apartment complex, it was unclear whether the district court correctly applied the enhancement. U.S. v. Sampson, 140 F.3d 585 (4th Cir. 1998).
4th Circuit rejects departure based on harsher penalties for crack than for powder cocaine. (240) The district court departed downward because of the harsher penalties for crack offenses than for cocaine powder, adopting the reasoning of Judge Wald in her dissent in U.S. v. Anderson, 82 F.3d 436 (D.C. Cir. 1996). Judge Wald argued that adhering to the atypicality requirement in the commentary to § 5K2.0 would violate § 3553(a)(2), which requires the court to impose a sentence sufficient but not greater than necessary to reflect the seriousness of the offense. She reasoned that since the Sentencing Commission has concluded that the harsher penalties for crack cocaine are unwarranted, applying the harsher penalties represents a punishment greater than necessary. The Fourth Circuit rejected this reasoning and reversed the downward departure. Under § 3553, a district court must adhere to the guidelines unless it finds specific circumstances not present in this case. Because § 3553(a)(2) is strictly limited to sentencing decisions within the guidelines’ range, there can be no conflict between it and the requirement in § 5K2.0 that sentencing courts not deviate from the guidelines except in atypical circumstances. Because there was nothing atypical about this case, the court erred in departing downward. U.S. v. Banks, 130 F.3d 621 (4th Cir. 1997).
4th Circuit approves use of murder guideline for drug defendant who killed rival drug dealer. (240) Defendant was convicted of drug and firearms charges, but the district court sentenced him under § 2A1.1, the murder guideline. Section 2D1.1(d)(1) provides that a drug defendant must be sentenced under § 2A1.1 if a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 111. The Fourth Circuit affirmed. Defendant had accosted a rival drug dealer for the purpose of robbing him of cocaine base that defendant believed the victim had on his person. Defendant pulled the trigger that killed the dealer. One witness testified that he watched defendant shoot the victim. Two co-conspirators testified that defendant had gone to a certain restaurant to rob the dealer. U.S. v. Crump, 120 F.3d 462 (4th Cir. 1997).
4th Circuit rules that “cocaine” and “cocaine base” are different for sentencing purposes. (240) Defendants were sentenced using the heavier penalties for cocaine base offenses under 21 U.S.C. § 841(b)(1)(A)(iii). They argued that “cocaine” and “cocaine base” have the same chemical formula, and that because there is an ambiguity in the statute, they should have been sentenced under the more lenient provisions for cocaine offenses under § 841(b)(1)(A)(ii). The Fourth Circuit ruled that cocaine and cocaine base are different for sentencing purposes. If clause (ii) included cocaine base, clause (iii) would serve no purpose in the statute since that clause also addresses cocaine base. In order to give a rational purpose to clause (iii), clause (ii) must be interpreted as applying to cocaine powder and other forms of cocaine except for “crack” cocaine, which is separately addressed in clause (iii). This interpretation is confirmed by the legislative history of the statute. U.S. v. Fisher, 58 F.3d 96 (4th Cir. 1995).
4th Circuit prohibits government from presenting additional evidence to support protected location enhancement. (240) Defendant was convicted of distributing crack within 1000 feet of a playground, as defined under 21 U.S.C. § 860. The 4th Circuit found insufficient evidence that the nearby park qualified as a “playground,” and reduced the conviction to a § 841 conviction. The appellate court also barred the district court from enhancing the sentence under § 2D1.2(a)(1) for a drug offense occurring near a “protected location,” and prohibited the government from introducing additional evidence on remand to prove that the park contained a playground. The prosecution already had a full and fair opportunity to offer whatever proof about the park it could assemble. U.S. v. Parker, 30 F.3d 542 (4th Cir. 1994).
4th Circuit reaffirms that drug quantity is not an element of the offense. (240) Defendant argued that it was unconstitutional for the sentencing judge to determine the quantity of crack in his possession as a sentencing enhancement, under the preponderance of the evidence standard, rather than by a jury as an element of the offense, by proof beyond a reasonable doubt. The 4th Circuit noted that it has “repeatedly and squarely rejected such arguments.” U.S. v. Parker, 30 F.3d 542 (4th Cir. 1994).
4th Circuit says use of underage persons in drug offense is not a specific offense characteristic. (240) Defendant’s offense level was calculated under § 2D1.1, and then increased under § 2D1.2(a)(2) for using underage persons in the offense. Defendant argued that § 2D1.2 only applies to convictions under 21 U.S.C. § 859, 860 and 861. The 4th Circuit agreed, ruling that the district court improperly used § 2D1.2 as a specific offense characteristic. Section 2D1.2 is not a specific offense characteristic that increases the offense level of a defendant sentenced under § 2D1.1. Instead, it defines the base offense level for violations of 21 U.S.C. § 859, 860, and 861. U.S. v. Locklear, 24 F.3d 641 (4th Cir. 1994).
4th Circuit rules that offense level calculation need only be established by a preponderance. (240) Defendant was convicted of possessing over 50 grams of crack cocaine. He appealed his sentence, claiming that the government failed to prove the quantity of cocaine beyond a reasonable doubt. The 4th Circuit rejected his argument, holding that since the quantity was only relevant for sentencing purposes, the government only had to establish it by a preponderance of the evidence. Thus the minimum mandatory sentence of ten years was appropriate because the district judges’ findings on quantity were supported by the record. U.S. v. Powell, 886 F.2d 81 (4th Cir. 1989).
5th Circuit says § 2D1.1(a)(2) applies only when death or serious bodily injury is part of drug offense. (240) Defendant pled guilty to possession with intent to distribute heroin. She did not plead guilty to death or serious bodily injury resulting from the use of these substances, but the PSR indicated that some of the heroin sold by defendant caused the death of Reitz. Based on Reitz’s death, the district court applied § 2D1.1(a)(2), which provides for a higher offense level when an individual is convicted under § 841(b)(1)(C) “and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance.” The Fifth Circuit held that § 2D1.1(a)(2) applies only when the second prong of the statute—that death or serious bodily injury results—is also part of the crime of conviction. Here, defendant’s “offense of conviction” did not “establish[ ] that death or serious bodily injury resulted from the use of the substance” and thus, § 2D1.1(a)(2) should not have applied to her. However, defendant did not raise this issue below, and could not establish that the error was plain. U.S. v. Greenough, 669 F.3d 567 (5th Cir. 2012).
5th Circuit finds increase for death or serious bodily injury did not violate Apprendi. (240) Defendant pled guilty to possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). She did not plead guilty to death or serious bodily injury resulting from the use of these substances, but the PSR indicated that some of the heroin sold by defendant caused the death of Reitz. Based on Reitz’s death, the district court applied § 2D1.1 (a)(2), which provides for a higher offense level when an individual is convicted under § 841(b)(1)(C) “and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance.” Defendant argued that the district court violated Apprendi because the allegation of death was not charged in the indictment or proven to a jury beyond a reasonable doubt. The Fifth Circuit held that because the 240-month sentence imposed by the court was not beyond the statutory maximum, the sentence did not violate Apprendi. U.S. v. Greenough, 669 F.3d 567 (5th Cir. 2012).
5th Circuit says Amendment 505 did not reduce offense level for less than 30 kilos of heroin. (240) A jury convicted defendant of conspiring to import heroin into the United States. The district court applied a base offense level of 36 based on the amount of heroin involved in the conspiracy, more than 10 kilograms but less than 30. Defendant filed a motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction under Amendment 505, which lowered the maximum base offense level for any drug type under § 2D1.1 from 40 to 38. The Fifth Circuit held that defendant was not entitled to a sentence reduction. Amendment 505 did not reduce the base offense level for offenses involving less than 30 kilograms of heroin. His adjusted offense level was 40, not because he received a pre-Amendment 505 base offense level, but because he received a four-level leadership enhancement. U.S. v. Wanambisi, 624 F.3d 724 (5th Cir. 2010).
5th Circuit applies pilot-captain increase even if drug defendant had no special skill. (240) Defendant was apprehended by game wardens as he drove a boat with 483.5 kilograms of marijuana a across a reservoir from Mexico to the United States. He said two unknown men came to his fishing camp and paid him $300 to drive the boat. The district court applied a § 2D1.1(b)(2)(B) enhancement because defendant was the captain, pilot, or navigator of the boat. The Fifth Circuit held that a defendant need not possess any special skills in order to receive this enhancement. Since defendant drove a boat containing contraband, the court properly applied the captain-pilot enhancement. U.S. v. Bautista-Montelongo, 618 F.3d 464 (5th Cir. 2010).
5th Circuit reverses toxic emission increase for failure to show violation of listed environmental statutes. (240) When police officers arrived at defendant’s residence to execute a warrant, they were overcome by the strong chemical odor emanating from defendant’s meth lab, and were forced to don suits fitted with a self-contained breathing device. Defendant was convicted of methamphetamine charges. Guideline § 2D1.1 (b)(10)(A) provides for a two-level enhancement if the offense involved (i) “an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance” or (ii) “the unlawful transportation, treatment, storage, or disposal of a hazardous waste.” The Fifth Circuit held that for the toxic-emission enhancement to be applicable, the government was required to prove, by a preponderance of the evidence, that defendant violated one of the listed statutes in Note 19 to § 2D1.1(b)(10). Although the government offered evidence that defendant’s offense involved the emission of noxious fumes, the government did not offer evidence showing how the emission was unlawful. U.S. v. Sauseda, 596 F.3d 279 (5th Cir. 2010).
5th Circuit rejects enhancement based on mere possession of drugs. (240) A defendant is subject to enhancements in §§ 4B1.4(b)(3) and(c)(2) if he possesses any firearms in connection with a “controlled substance offense,” which the Guidelines define as a crime involving “the manufacture, import, export, distribution, or dispensing of a controlled substance … or the possession of a controlled substance …. with the intent to manufacture, import, export, distribute, or dispense.” USSG § 4B1.2(b). Mere possession of illegal drugs, without more, is not a “controlled substance offense” for these purposes. Here, defendant was found with “undetermined” amounts of illegal drugs in his home. The district court did not make a finding that defendant possessed the drugs with intent to manufacture, import, export, distribute, or dispense, and the government conceded that there was no evidence in the record to support such a finding. Accordingly, the Fifth Circuit held that the application of the enhancements in § 4B1.4(b)(3) & (c)(2) was erroneous. U.S. v. Neal, 578 F.3d 270 (5th Cir. 2009).
5th Circuit holds that defendant took “substantial step” toward methamphetamine production. (240) Guideline § 2D1.11 governs sentencing for possession of listed chemicals, such as pseudoephedrine. Section 2D1.11(c) provides that if the offense involved “attempting to manufacture a controlled substance,” the court should apply § 2D1.1 if it results in a greater offense level. In order to show that defendant attempted to manufacture methamphetamine, the government must show that the defendant (1) acted with the required criminal intent, and (2) engaged in conduct constituting a “substantial step” toward commission of the substantive offense. The Fifth Circuit held that the district court did not err in finding that defendant had assembled sufficient equipment, ingredients and instructions to have crossed the line between “mere preparation” and a “substantial step.” Defendant possessed pseudoephedrine, an immediate precursor to methamphetamine, along with a substantial number of other ingredients for producing methamphetamine. Defendant possessed a recipe for converting the precursor drug into the final form. Defendant pled guilty to intent to manufacture methamphetamine, and therefore acknowledged that he intended to finalize the process of converting the pseudoephedrine into meth. U.S. v. Jessup, 305 F.3d 300 (5th Cir. 2002).
5th Circuit upholds finding that drugs distributed by defendant caused deaths. (240) Guideline § 2D1.1(a)(2) and 21 U.S.C. § 841(b) (1)(C) provide for a sentencing enhancement if death or serious bodily injury results from the use of drugs supplied by defendant. Defendant did not deny that he supplied heroin to the users that died, but denied that the heroin caused their deaths. In U.S. v. Carbajal, 290 F.3d 277 (5th Cir. 2002), the Fifth Circuit held that § 2D1.1(a)(2) is a strict liability provision and does not require proof of proximate causation or reasonable foreseeability.” A defendant can “be held responsible for overdose deaths if the government could show a reasonable medical probability that the heroin supplied by [the defendant] caused the deaths.” The Fifth Circuit found sufficient evidence to support the increase here. The medical examiner who performed the autopsies of Malina and Hill testified that there was a reasonable medical probability that the heroin used by Hill and Malina proximately caused their deaths, and defendants offered no evidence to refute this expert testimony. The medical examiner who performed the autopsy of Baker testified that there was a reasonable medical probability that heroin and cocaine, in some combination, caused Baker’s death, even though the proximate cause of death was a pulmonary embolism. U.S. v. Solis, 299 F.3d 420 (5th Cir. 2002).
5th Circuit holds that Apprendi applies to issue of death or bodily injury from drug offense. (240) Under 21 U.S.C. § 841(b)(1)(C), the statutory maximum for an offense involving an unspecified amount of drugs is 20 years in prison. However, § 841(b)(1)(C) provides that “if death or serious bodily injury results from the use of such substance [the defendant] shall be sentenced to a term of imprisonment of not less than twenty years or more than life.” The Fifth Circuit concluded that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), whether death or bodily injury has resulted from a drug offense is a fact that must be proved beyond a reasonable doubt to the finder of fact. Here, the government argued that the absence of cause of death from the indictment was the result of defendants’ own motion to strike and so any such violation of Apprendi was invited error. The Fifth Circuit agreed. The cause of death facts were alleged in the indictment under several counts, but the defendants successfully moved to have these allegations stricken from the indictment and kept out of evidence on the grounds that they were merely sentencing factors and not properly included in the indictment or the jury charge. Defendants clearly induced the erroneous omission. No manifest injustice would flow from the refusal to correct the invited Apprendi error. U.S. v. Solis, 299 F.3d 420 (5th Cir. 2002).
5th Circuit holds that enhancement for death from drugs is strict liability provision. (240) Section 2D1.1(a)(2) establishes a base offense level of 38 if the defendant is convicted of drug trafficking under 21 U.S.C. § 841(b) “and the offense of conviction establishes that death or serious bodily injury resulted from use of the substance.” Defendant argued that the § 2D1.1(a) (2) increase applies only if the government can establish that drugs attributable to him were the proximate reasonably foreseeable cause of death. The Fifth Circuit disagreed, holding that § 2D1.1(a)(2) is a strict liability provision that applies without regard to common law principles of proximate cause or reasonable foreseeability. Here, the district court properly attributed two heroin-related deaths to defendant. First, victim Harmon died after consuming capsules containing heroin purchased from defendant’s lieutenant. The government’s medical expert testified that, despite traces of other drugs in Harmon’s blood, there was a reasonable medical probability that heroin was the cause of death. Harmon’s death was not caused by his friends’ failure to seek immediate medical attention. Negligent (as opposed to grossly negligent or intentional) acts by a third party cannot be the superceding cause of an injury if they are foreseeable. The second victim, Tuinei, passed out immediately after injecting heroin into his arm. The government’s medical expert testified that the cause of Tuinei’s death was the mixed effect of heroin and ecstasy, and that there was a reasonable medical probability that heroin was “primarily responsible.” This was sufficient evidence to support the court’s finding that the overdose deaths of Harmon and Tuinei “resulted from” the heroin they purchased from defendant. U.S. v. Carbajal, 290 F.3d 277 (5th Cir. 2002).
5th Circuit upholds sentence based on judicial finding that death resulted from drug distribution. (240) Defendant’s friend, Taylor, had an adverse reaction to heroin defendant provided, and died. The cause of death was an “acute mixed drug reaction.” Taylor had used large amounts of cocaine as well as the heroin she took with defendant, and the combination killed her. A jury convicted defendant of possession with intent to distribute, but could not reach a verdict on whether death resulted from defendant’s distribution of heroin to Taylor. However, at sentencing, the district court found under § 2D1.1(a) that death had resulted from the use of heroin, which resulted in a base offense level of 43 and a life sentence. Because the jury was unable to find that Taylor’s death was a result of defendant’s distribution of heroin, he argued that the court’s sentence violated his right to a jury. The Fifth Circuit found this argument foreclosed by U.S. v. Watts, 519 U.S. 148 (1997), which held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as the conduct has been proved by a preponderance of the evidence.” The panel also rejected defendant’s claim that his 80-year sentence constituted cruel and unusual punishment. The Supreme Court has upheld a statute mandating a life sentence for possessing more than 650 grams of cocaine. U.S. v. Cathey, 259 F.3d 365 (5th Cir. 2001).
5th Circuit holds that Apprendi error from failure to instruct jury on drug quantity was harmless. (240) Defendant’s 365-month sentences exceeded statutory maximum penalty for a marijuana offense under 21 U.S.C. § 841(b)(1)(C) and (D). While the indictment charged the amount of marijuana involved in the offense, the jury instructions failed to include the issue of quantity. Nonetheless, the Fifth Circuit found the Apprendi error was harmless, since the record contained no evidence that could rationally lead the jury to a conclusion contrary to the quantities of drugs stated in the indictment. Moreover, the jury had with it during deliberations a copy of the indictment setting forth the drug quantities that could support the sentences imposed by the district court. U.S. v. Delgado, 256 F.3d 264 (5th Cir. 2001).
5th Circuit holds that drug and money laundering counts should have been grouped together. (240) Guideline § 3D1.2(c) provides that multiple counts should be grouped together if “one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” The Fifth Circuit held that defendant’s money laundering and drug convictions should have been grouped together for sentencing purposes under § 3D1.2(c), since the drug offenses would otherwise be counted both in the drug count and as a specific offense characteristic of the money laundering scheme. Just as in U.S. v. Rice, 185 F.3d 326 (5th Cir. 1999), defendant received a three-point increase to his money laundering offense level because he knew that the funds were the proceeds of an unlawful activity involving the distribution of drugs. This was the exact conduct embodied by the drug trafficking count. U.S. v. Salter, 241 F.3d 392 (5th Cir. 2001).
5th Circuit says sentencing for crack rather than powder cocaine not plain error. (240) Defendant plead guilty to “distribution of cocaine base, also known as crack cocaine.” He argued for the first time on appeal that the district court erred in finding that he had possessed crack cocaine as opposed to powder cocaine. The Fifth Circuit held that the district court did not commit plain error by sentencing defendant under the crack cocaine guidelines. The record indicated that defendant clearly understood that he was charged with, and pleaded guilty to, distributing crack cocaine. At his plea hearing, defendant heard the prosecuting attorney outline his plea agreement that indicated that he was pleading guilty to distributing crack, agreed with this characterization of the plea, informed the court that he understood the elements of the offense he wished to plead guilty to, including that the substance was crack, and answered affirmatively to the prosecutor’s question as to whether he had sold crack. U.S. v. Brooks, 166 F.3d 723 (5th Cir. 1999).
5th Circuit holds that court may apply cocaine penalties following general verdict. (240) Defendant was convicted under a general verdict of conspiracy to import and distribute cocaine and marijuana. He argued that under U.S. v. Bounds, 985 F.2d 188 (5th Cir. 1993), his sentence should reflect the drug carrying the lowest offense level because the general verdict left unclear the drug to which the jury tied defendant. The Fifth Circuit noted that Bounds was rejected by the Supreme Court in Edwards v. U.S., 118 S.Ct. 1475 (1998). Under Edwards, the district judge, not the jury, determines the controlled substance linked to a drug conspiracy for sentencing purposes. U.S. v. Medina, 161 F.3d 867 (5th Cir. 1998).
5th Circuit upholds using crack cocaine penalties. (240) Defendant pled guilty to cocaine base charges. He contended for the first time on appeal that the record lacked proof that the substance was crack. The Fifth Circuit found no error. Defendant was aware that he was pleading guilty to, and was sentenced for possession with intent to distribute cocaine base. In fact, the record showed that defendant fully understood that the enhanced crack cocaine penalties applied to his case. The law is clear that for purposes of the sentencing guidelines, “cocaine base” means “crack.” To avoid future disputes, district judges should make clear on the record that the crime charged as cocaine base is “crack.” U.S. v. Brewster, 137 F.3d 853 (5th Cir. 1998).
5th Circuit holds “1,000 feet from school” statute is separate offense, not an enhancement. (240) Defendant pled guilty to one count of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He challenged an enhancement under 21 U.S.C. § 860 and § 2D1.2, which applies to drug offenses committed within 1000 feet of a school. The Fifth Circuit held that § 860 is a substantive offense rather than a sentencing enhancer of § 841(a)(1), and therefore the enhancement was improper. The court also erred in applying § 2D1.2 to a conviction under § 841(a)(1). The Statutory Index directs a court to apply § 2D1.1, not § 2D1.2, to convictions of § 841(a)(1). Although courts are authorized to consider relevant conduct in determining a defendant’s offense level, the discretion is not unlimited. Once the court selects the appropriate guideline, the court can only take relevant conduct into account as it relates to the facts set forth in that guideline. In this case, whether the offense occurred near a protected location is not relevant to any of the factors in § 2D1.1. U.S. v. Chandler, 125 F.3d 892 (5th Cir. 1997).
5th Circuit precludes departure based on discriminatory impact of crack penalties. (240) Defendant argued that the court erred in failing to grant a downward departure under § 5K2.0 based on the Sentencing Commission’s failure to consider the discriminatory effect of the harsher penalties for crack cocaine. The Fifth Circuit found this argument precluded by U.S. v. Fonts, 95 F.3d 372 (5th Cir. 1996). U.S. v. Thomas, 120 F.3d 564 (5th Cir. 1997).
5th Circuit says 2D1.5(a) refers to all of 2D1.1, including specific offense characteristics. (240) Defendant received a life sentence for engaging in a continuing criminal enterprise. He later moved to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on a 1994 Amendment to § 2D1.1(c) (Amendment 505), which reduced the maximum base offense level from 42 to 38. The district court summarily denied the motion. Defendant argued that Amendment 505 lowered his total offense level to 42, resulting in a guideline range of 360 months to life, and that the court abused its discretion when it sentenced him at the top of the sentencing range without weighing the § 3553(a) factors. The Fifth Circuit found that defendant’s offense level was 44, once the specific offense characteristics were applied to enhance his offense level. Section 2D1.5(a)(1) provides for an offense level of 4 plus the offense level from § 2D1.1 for the underlying offense. Although § 2D1.5 does not list any specific offense characteristics, it references § 2D1.1 in its entirety, including the specific offense characteristics of § 2D1.1(b). Thus, the two level enhancement in § 2D1.1(b)(1) for possession of a dangerous weapon applied to defendant, raising his offense level from 42 to 44. U.S. v. Gonzalez-Balderas, 105 F.3d 981 (5th Cir. 1997).
5th Circuit holds counsel’s failure to object to finding that defendant smuggled crack was not ineffective assistance. (240) In a § 2255 motion, defendant argued that his trial counsel was ineffective for failing to object to the PSR’s finding that he smuggled crack into the U.S., as opposed to powder cocaine or cocaine base. The Fifth Circuit rejected the claim since defendant failed to prove that counsel acted unreasonably or that his failure to object affected the case. Defendant made no objections even though he was asked at the sentencing hearing if he had read the PSR and had any objections. Also, before trial, defendant’s counsel received a scientific report from the DEA that the substances had been tested and was identified as crack. This report, and expert testimony by the DEA agent, undoubtedly caused counsel to limit his argument at sentencing to a plea for leniency. The district court’s finding that defendant smuggled crack was not clearly erroneous. The finding was supported by the DEA agent’s testimony, which defendant failed to rebut. U.S. v. Samuels, 59 F.3d 526 (5th Cir. 1995).
5th Circuit holds that mandatory minimum in § 841 overrides LSD amendment. (240) 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. United States, 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 says penalties for selling drugs near school apply even if school is not involved. (240) Defendants sold drugs within 1000 feet of a middle school, but the district court declined to impose an enhancement under 21 U.S.C. § 860(a) and guideline section 2D1.2 because the transaction occurred in the evening after school hours and did not involve school children. The government did not appeal this issue. However, the case was remanded for other reasons. The 5th Circuit pointed out that the district court’s resolution of this issue was contrary to currently settled law in the Circuit: the “drug-free school zone” statute is interpreted strictly. The increased penalties apply regardless of whether the offense had anything to do with the school, school hours, or school children. U.S. v. Smith, 13 F.3d 860 (5th Cir. 1994).
5th Circuit does not require pretrial notice of intent to enhance for drug quantity. (240) 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 upholds use of FTIR to prove substance was cocaine base. (240) The arresting officer testified that, based on his personal knowledge, the substance involved in defendant’s transaction was cocaine base. A forensic scientist testified that the substance was cocaine base, based on tests conducted with a machine called a Fourier Transform Infrared Spectrophotometer (FTIR). The 5th Circuit upheld reliance on this evidence to conclude that the substance in question was cocaine base. The government’s failure to show that the FTIR was sufficiently established in the scientific community to meet the Frye test was not fatal. The standard governing admissibility at sentencing is substantially lower than that governing admissibility at trial. The reliability of the test was sufficiently established by testimony that the machine was tested and calibrated on a daily basis using reference material provided by the machine’s manufacturer. U.S. v. McCaskey, 9 F.3d 368 (5th Cir. 1993).
5th Circuit holds that quantity of methamphetamine is not an element of crime. (240) The 5th Circuit rejected defendant’s claim that because no specific quantity of methamphetamine was mentioned in the indictment, he should not have been sentenced based on the quantity of methamphetamine involved. Because quantity is not an element of offenses proscribed by section 841(a), quantity is relevant only at sentencing under section 841(b), and as a result, a defendant is not entitled to be notified through the indictment that the government intends to use quantity in seeking a sentence. Defendant received adequate notice through the presentence report that the quantity of methamphetamine would be relevant in determining his sentence. U.S. v. Anderson, 987 F.2d 251 (5th Cir. 1993).
5th Circuit applies section 2D1.1 to possession of listed chemical offense. (240) The 5th Circuit affirmed the application of section 2D1.1 to defendant’s conviction for possessing a listed chemical with intent to manufacture a controlled substance. The court agreed with the 9th Circuit’s opinion in U.S. v. Cook, 938 F.2d 149 (9th Cir. 1991), that this guideline specifically applied to defendant’s section 941(d)(1) offense. The Statutory Index matches a conviction for section 841(d) with section 2D1.1. The November 1991 addition of section 2D1.11, which expressly addresses possession of listed chemicals, did not change this analysis. Even if section 2D1.1 did not directly apply to defendant’s offense, it was certainly the most analogous guideline when defendant was sentenced. U.S. v. Leed, 981 F.2d 202 (5th Cir. 1993).
5th Circuit says court was not bound by improper classification of methamphetamine in indictment. (240) The indictment correctly cited 21 U.S.C sections 846 and 841(a)(1) as the relevant criminal statutes, but incorrectly referred to methamphetamine as a schedule III, rather than a schedule II, controlled substance. At sentencing, the district court rejected the government’s claim that defendants should be sentenced for possessing a schedule II controlled substance, stating that the government was “stuck with its indictment.” The 5th Circuit reversed, finding that because the district court applied the wrong statute and ignored the guidelines’ recommendation, the sentences it imposed were illegal. The reference to methamphetamine as a schedule III substance in the indictment did not bind the court, since the elements of the relevant statutory offense charged were adequately described in the indictment. U.S. v. Greenwood, 974 F.2d 1449 (5th Cir. 1992).
5th Circuit affirms that offense most analogous to possessing flask for methamphetamine production was 21 U.S.C. 841(d). (240) Defendant pled guilty to possessing a three-neck round bottom flask with intent to manufacture a controlled substance, in violation of 21 U.S.C. section 843(a)(6). The guidelines do not contain a specific reference for this felony, and therefore the district court was required to determine the most analogous guideline. The 5th Circuit affirmed the district court’s determination that the most analogous guideline was that applicable to violations of 21 U.S.C. section 841(d), which applies to the possession of a chemical with the intent to manufacture a controlled substance. The court rejected defendant’s contention that the most analogous guideline was that applicable to violations of 21 U.S.C. section 863, which applies to the use, sale, or trafficking of drug paraphernalia. Section 863 applies to things used to experience or consume a controlled substance, while section 841(d) applies to things used to create controlled substances. U.S. v. Smertneck, 954 F.2d 264 (5th Cir. 1992).
5th Circuit reverses finding that stipulation established more serious drug offense. (240) The district court sentenced defendants under the guideline governing drug trafficking, rather than the guideline governing the offense of using a communications facility to commit a drug trafficking offense. Defendants had pled guilty to the latter offense. The government contended that defendants stipulated to the greater offense when they concurred in the factual basis for their plea. The 5th Circuit found that the stipulation did not specifically establish a more serious offense than the offense of conviction. At best, the stipulation showed that defendants were present during the commission of a drug trafficking offense, which is not enough to establish possession with intent to distribute. The sentencing court could not, as suggested by the government, rely on facts in the presentence report to establish the elements of the greater offense simply because defendants failed to object to those facts. The factual basis for each element of the greater offense must appear in the stipulated facts as made on the record. U.S. v. Garcia, 931 F.2d 1017 (5th Cir. 1991).
5th Circuit reverses upward departure based on involvement of minor in drug activities. (240) The district court departed upward from 87 months to 300 months because, at the time of defendant’s arrest on cocaine charges, a 15 year old girl was present in his automobile. The defendant argued that if he had been convicted of the offense of involving a minor in a drug transaction in violation of 18 U.S.C. § 845b, the maximum sentence that he could receive would be 108 months. The 5th Circuit reversed the sentence, holding that although the district court was not strictly bound by the adjustment for involvement of a minor specified in § 2D1.2, it held that on remand the district court should explain its reasons for going beyond that guideline range. Moreover the court noted that the government presented no direct evidence that the minor was either involved in the conspiracy or bought, sold or used drugs. U.S. v. Landry, 903 F.2d 334 (5th Cir. 1990).
6th Circuit affirms drug-house increase based on 1,200 pounds of marijuana stored for eight months. (240) Defendant was part of a conspiracy that obtained marijuana from a Texas supplier, who delivered it to defendant’s home in Arkansas. Defendant stored the marijuana in his home until another co-conspirator picked it up to distribute to drug dealers in Tennessee. The Sixth Circuit upheld a § 2D1.1(b)(12) enhancement for maintaining a drug house. A defendant may maintain a place for the purpose of distributing drugs even if that is not “the sole purpose for which the premises was maintained.” As part of the conspiracy, defendant stored 1200 pounds of the drug in his home during an eight-month period. Officers observed three instances in which members of the conspiracy traveled to defendant’s Arkansas home to pick up large quantities of drugs for distribution in Tennessee. Thus, defendant consistently used space in his home for storing large quantities of drugs, the central purpose of which was to further a drug-trafficking conspiracy. U.S. v. Johnson, 737 F.3d 444 (6th Cir. 2013).
6th Circuit affirms rejection of Amendment 505 reduction. (240) In 1993, defendant was convicted of conspiracy to distribute cocaine base. In 2008, he moved to reduce his sentence under § 3582(c)(2) based on Amendments 505 and 706. The Sixth Circuit held that the district court correctly found that defendant was eligible for a reduction based on Amendment 505, but did not abuse its discretion in refusing to grant a reduction. Amendment 505 lowered defendant’s base offense level from 40 to 38, and lowered his guideline range from life to between 30 years and life. The court refused to reduce defendant’s sentence because it had already considered and denied three motions by defendant to reduce his sentence based on Amendment 505. Defendant did not present any new evidence of post-offense rehabilitation or other relevant factors not addressed in the previous motions. The district court also correctly denied defendant’s motion for a reduction based on Amendment 706, because that Amendment it did not lower defendant’s offense level. U.S. v. Watkins, 625 F.3d 277 (6th Cir. 2010).
6th Circuit rules increase for prior drug conviction has no time limit. (240) Defendant pled guilty to distribution of fentanyl resulting in death, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c). He had a prior 1984 conviction for delivering marijuana, which the district court found was a prior offense under § 2D1.1(a)(1), yielding a base offense level at 43. Defendant argued that his 1984 conviction was too old to count under § 2D1.1. He contended that the time limits under the criminal history category provisions of § 4A1.2(e) also apply to exclude stale convictions under § 2D1.1(a)(1). The 6th Circuit rejected this argument. Section 4B1.4’s disclaimer of § 4A1.2’s time limits does not mean that the time limits of § 4A1.2 are the default rule in Chapter 2. This argument is particularly weak since some provisions of Chapter 2 explicitly adopt the time limits of § 4A1.2(e). There is no reason to conclude that the time limits created for § 4A1.2(e) were intended to signal a global policy barring the use of any convictions older than 15 years. U.S. v. King, 516 F.3d 425 (6th Cir. 2008).
6th Circuit finds 294-month sentence for drug offender with no criminal history was reasonable. (240) Defendant argued that his 294-month drug sentence was unreasonable, because given his complete lack of any criminal history, “how could any court state that a sentence of twenty-four and one-half [] years for someone who has never spent one day in jail, is not unreasonable?” He contended that the court improperly weighed the relevant sentencing factors. The Sixth Circuit found no error. The court properly considered and weighed all of the § 3553(a) factors in light of defendant’s particular circumstances. In particular, the court found that the mitigating factors cited by the defendant (lack of criminal history and potential for rehabilitation) were offset by defendant’s significant contribution to the drug problem over a number of years. Also, while defendant may have had more potential for rehabilitation than many defendants because of his family and educational background, those factors also weighed at least partially against defendant because he had more opportunities than many offenders to pursue lawful sources of income. Defendant did not establish that his lengthy sentence was unreasonable. U.S. v. Ward, 506 F.3d 468 (6th Cir. 2007).
6th Circuit holds cocaine sentence did not violate Apprendi. (240) Defendant challenged his sentence for possession with intent to distribute cocaine, noting that the jury did not determine the type and quantity of drugs he was found to possess. Although the indictment charged him with possessing nine kilograms of cocaine, the verdict form only required the jury to check off guilty or not guilty. Defendant argued that his sentence violated Apprendi, which provides that a defendant may not be exposed to a greater punishment than that authorized by the jury’s guilty verdict. The Sixth Circuit found no Apprendi violation. So long as a sentence does not exceed the maximum penalty authorized by statute, there is no Apprendi violation. Because defendant was sentenced below the 20-year maximum authorized under 21 U.S.C. § 841(b) (1)(C), there was no Apprendi violation. U.S. v. Franco, 484 F.3d 347 (6th Cir. 2007).
6th Circuit holds that enhancement for endangering minor did not require proof that defendant knew minor’s age. (240) Defendant was arrested in a motel room containing both a minor and an operational methamphetamine lab, replete with the smell of meth chemicals. The district court applied a six-level enhancement for substantial risk of harm to the life of a minor under U.S.S.G. § 2D1.1(b)(6)(C). Defendant argued that he did not know the true age of the minor, and thought she was the same age as an adult female in the room. However, the Sixth Circuit found this argument irrelevant – defendant’s subjective knowledge of the minor’s age was legally immaterial. The guidelines do not require defendant’s actual knowledge of the minor’s age in order to apply the enhancement. The risk involved here supported the enhancement. U.S. v. Whited, 473 F.3d 296 (6th Cir. 2007).
6th Circuit holds that 36 percent variance below advisory range for drug/firearm offenses was reasonable. (240) Defendant pled guilty to crack and firearms offenses, resulting in an advisory guideline range of 188-235 months. The court varied downward to impose a 120-month sentence (the statutory minimum for the charges involved), citing defendant’s personal history, his criminal history, and his age. Although defendant’s criminal history was IV, he had never been in custody for any substantial period of time, having only been imprisoned for seven months before this crime. In addition, the criminal history did not reflect that this was the first time that this quantity of drug and guns had been found in defendant’s possession. The court also noted that defendant’s father had been murdered when defendant was nine, and his mother died of cancer two years later. As a result, the court ordered defendant to undergo mental health counseling. The Sixth Circuit held that the sentence, which represented a 36 percent variance below the bottom of the advisory guideline range, was both procedurally and substantively reasonable. The court explained its analysis in reaching this sentencing determination and its analysis was sound. “This Court must show some level of deference to the district court in sentencing, especially when that district court provides this court with a factor-by-factor consideration of the relevant section 3553(a) factors.” U.S. v. Collington, 461 F.3d 805 (6th Cir. 2006).
6th Circuit holds that defendant’s meth lab posed substantial risk of harm to human life. (240) At the time of the offense, U.S.S.G. § 2D1.1(b)(5)(B) provided for an enhancement if the offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life or the environment. Note 21(A) to the former § 2D1.1 listed four factors that a court may consider when determining the existence of a substantial risk of harm: the quantity of any chemicals or hazardous substances found at the lab, or the manner in which they were stored, the manner in which hazardous substances were disposed, the duration of the offense, and the location of the lab and the number of human lives placed at risk of harm. Based on three of the four factors, the Sixth Circuit agreed that defendant’s meth lab placed numerous people at substantial risk of serious harm. The chemicals found in defendant’s apartment, while typical of those used in the production of meth, were highly flammable and were not stored. Defendant manufactured several batches of methamphetamine from the lab. While this was not unusual, this factor nonetheless supported the adjustment. Finally, the lab was in a large apartment complex in a densely settled area near a number of other apartment complexes. The apartment was within an eight-structure unit, and at the time the warrant was executed, the other seven units were occupied. Defendant’s neighbors could smell fumes coming from his apartment. Thus, the lab clearly posed a risk to defendant’s neighbors. U.S. v. Layne, 324 F.3d 464 (6th Cir. 2003).
6th Circuit holds guideline increase for resulting death applies only if proven beyond reasonable doubt. (240) The federal drug trafficking statute, 21 U.S.C. § 841(b)(1)(C), provides for a mandatory minimum sentence of 20 years “if death or serious bodily injury result[ed]” from the use of a schedule I controlled substance. In U.S. v. Rebmann, 226 F.3d 521 (6th Cir. 2000), the Sixth Circuit held that the “if death results” provision of § 841(b)(1)(C) is not a mere sentencing factor, but an element of a separate crime (distribution resulting in death) that must be proved beyond a reasonable doubt. Because defendant had been sentenced beyond the 20-year maximum permitted without the “if death results” enhancement, the case was remanded. On remand, the government argued that the district court could apply the “if death results” increase in U.S.S.G. § 2D1.1(a)(2) based on its previous finding under the preponderance of the evidence standard. The Sixth Circuit disagreed, concluding that the guidelines’ “if death results” enhancement is not based on relevant conduct, but is tied expressly to the substantive offense of conviction under the statute. As a result, the guidelines’ “if death results” enhancement applies only when the elemental facts supporting the “offense of conviction” establish beyond a reasonable doubt that death resulted from the use of the controlled substance. U.S. v. Rebmann, 321 F.3d 540 (6th Cir. 2003).
6th Circuit holds that attorney was not ineffective in failing to request reweighing of drugs. (240) Defendant and a co-defendant were indicted for aiding and abetting in the distribution of 50.3 grams of cocaine base. Counsel for the co-defendant requested a reweighing of the drugs prior to sentencing. Defendant’s counsel did not make a similar request. The co-defendant was sentenced based on 38 grams and defendant was sentenced on the original weight, over 50 grams. Defendant claimed that his attorney was ineffective for failing to request a reweighing when the amount of drug was so close to the threshold amount of 50 grams. The Sixth Circuit found no error, because the proper weight for determining a sentence is the weight at the time of the offense, not some later weight. The computation of the amount of drugs attributable to defendant was entirely proper, whether or not his attorney sought a reweighing. No error occurred at defendant’s sentencing, even if his co-defendant got a benefit to which he was not entitled. Kinnard v. U.S., 313 F.3d 933 (6th Cir. 2002).
6th Circuit says supervised release in drug statutes is not subject to limits in 18 U.S.C. § 3583(b). (240) The maximum term of supervised release that may be imposed under 18 U.S.C. § 3583(b) is three years. However, this conflicts with 21 U.S.C. § 841, which provides a minimum term of three years of supervised release if the drug quantity is not specified (and there is no prior conviction) and a minimum term of five years if the quantity is fifty grams or more of pure methamphetamine. 21 U.S.C. § 841(b)(1) (A). In U.S. v. Page, 131 F.3d 1173 (6th Cir. 1997), the Sixth Circuit considered the two statutory directives and affirmed a five-year term of supervised release under § 841. The court found that “these specific provisions [of § 841(b)] are excluded from the limits on supervised release provided for in § 3583(b).” Id. at 1180; Accord U.S. v. Pratt, 239 F.3d 640, 646-48 (4th Cir. 2001). Thus, Page foreclosed defendant’s argument that the court erred in sentencing him to five years of supervised release. U.S. v. King, 272 F.3d 366 (6th Cir. 2001).
6th Circuit upholds use of crack penalties where defendant never objected to numerous references to substance as crack. (240) Defendant argued that the government failed to show that his offense involved crack cocaine rather than powder cocaine. The Sixth Circuit found no plain error. Defendant never contested this drug type determination in the court below. The substance at issue was expressly characterized as “crack” in the proceedings below, and neither defendant nor his counsel raised any sort of objection to this terminology. In addition, the record contained ample evidence that the government intended to pursue a sentence under the statutory and guideline provisions governing crack, and that defendant was aware of this prosecutorial objective. Defendant’s plea agreement stated that the charged offense carried a statutory minimum term of imprisonment of 10 years, which was only applicable if defendant’s drug offense involved cocaine base. Similarly, the sentencing calculations in the PSR confirmed that defendant’s conduct triggered crack’s enhanced penalties. The court rejected the suggestion in U.S. v. Garrett, 189 F.3d 610 (7th Cir. 1999), that courts should more carefully scrutinize a defendant’s factual admissions as to drug type. Moreover, the prosecution “has no burden to establish at sentencing a factual issue which is not in dispute.” U.S. v. Stafford, 258 F.3d 465 (6th Cir. 2001).
6th Circuit holds that general verdict required sentence for marijuana-only conspiracy. (240) Defendant asked the district court to submit a special verdict form to the jury to determine whether he was guilty of a conspiracy involving cocaine, or only marijuana. Defendant would have benefited from a 60-month sentencing cap if found guilty of a marijuana-only conspiracy. The court denied defendant’s motion and he received a 188-month sentence. In U.S. v. Dale, 178 F.3d 429 (6th Cir. 1999), the court held where a defendant has been convicted under a general conspiracy verdict, it is plain error to impose a sentence that surpasses the object of the conspiracy carrying the least grave sentencing consequences. This case was distinguishable from Dale in that counsel here explicitly requested a special verdict. Thus the trial judge and the government were on notice that defendant wished to have the opportunity to convince a jury that his participation in the conspiracy related only to marijuana. Thus, in remanding, the Sixth Circuit refused to give the government the option, as in Dale, to “permit” the defendant to be sentenced for the lesser penalty or force him to submit to a new trial. Defendant’s prosecutors had already once declined to seek a special verdict after being placed on notice that defendant intended to argue that he was only responsible for the less grave object of the conspiracy. It would be unjust to reward their efforts by providing them with a Dale-type election. Instead, the panel remanded with directions to sentence defendant for a marijuana-only conspiracy. U.S. v. Randolph, 230 F.3d 243 (6th Cir. 2000).
6th Circuit holds that doctor was properly sentenced under drug distribution guideline. (240) Defendant, a medical doctor, prescribed thousands of dosages of controlled substances for the use and benefit of Dillon, a friend and a patient. He argued that his offense was more akin to acquiring a controlled substance by fraud, to which § 2D2.2 applies, than to distributing controlled substances, which is covered by § 2D1.1. The district court rejected this argument because defendant was convicted of distribution in addition to obtaining drugs by fraud. Since defendant was convicted of violating § 841(a)(1), the Sixth Circuit ruled that defendant was properly sentenced under § 2D1.1. Although defendant was originally indicted under § 843(a)(1), the superseding indictment included the more serious § 841(a)(1) violations. The superseding indictment was not vindictive. U.S. v. Wells, 211 F.3d 988 (6th Cir. 2000).
6th Circuit upholds finding that drugs were crack. (240) Note D to § 2D1.1(c) defines “crack” as “the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.” Defendant argued that because the government did not prove that the drugs attributable to him were processed with sodium bicarbonate, they should not be considered crack. The Sixth Circuit noted that it had previously held, in U.S. v. Jones, 159 F.3d 969 (6th Cir. 1998), that the use of sodium bicarbonate is not a necessary prerequisite for a district court’s factual determination that a particular drug is “crack.” A preponderance of the evidence supported the district court’s finding that the drugs attributed to defendant were crack. A police analyst testified that she performed lab tests on the drugs purchased from defendant by an undercover agent, and concluded that the drugs were cocaine base. Field tests by the undercover agent also revealed that the drugs were crack cocaine. In addition, the drugs were admitted into evidence and a police agent described them as having an opaque, rock-like appearance, a characteristic of crack cocaine. U.S. v. Owusu, 199 F.3d 329 (6th Cir. 2000).
6th Circuit says court cannot rule out possible basis for departure in crack cocaine case. (240) Defendant moved for a downward departure based on the government’s improper investigative techniques, which allegedly included targeting and inducing parolees and African-Americans to commit crimes. The district court found this was not a sentencing issue, but rather a selective prosecution issue and thus an improper basis for a downward departure. The Sixth Circuit ruled that under Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), a judge cannot categorically exclude any non-prohibited factor from consideration for a downward departure. Because improper investigative techniques are not considered by the guidelines, the district court could properly consider them. The appellate court declined to consider whether these factors were present to such a degree as to warrant a downward departure. But it said that although the disparity between crack and powder cocaine is not sufficient in itself to justify a downward departure, such a disparity, when coupled with the improper targeting and inducement, might be sufficient to take a case outside the heartland of crack cocaine cases. Judge Norris dissented. U.S. v. Coleman, 188 F.3d 354 (6th Cir. 1999) (en banc).
6th Circuit finds sufficient evidence that substance was crack. (240) Defendant argued in a § 2255 motion that the government failed to prove that the substance which he was charged with possessing and distributing was crack, as opposed to some other form of cocaine. The Sixth Circuit rejected this claim because “the record was replete with testimony that Wright and other members of the conspiracy distributed crack cocaine.” At trial, a government chemist testified that she performed several different scientific tests on the substance seized in August 1991 and determined that it contained cocaine base. She further testified that the substance was a “chunky hard substance … indicative of the processes used [in] making cocaine base.” Two co-conspirators also testified that the substance being distributed was crack cocaine and consistently referred to that substance as crack cocaine. Finally, two others testified that the drug was crack based on their own purchase and use of crack cocaine. Wright v. U.S. 182 F.3d 458 (6th Cir. 1999).
6th Circuit holds that defendant waived challenge to use of crack penalties. (240) Defendant argued that the district court erred in holding him accountable for crack, rather than powder cocaine, since the government’s expert did not identify the existence of baking soda or sodium bicarbonate in the substance. The Sixth Circuit held that defendant waived this challenge by failing to raise it below. The question whether a substance meets the criteria for crack is a fact-intensive one. If defendant had raised this issue below, the district court could have definitively resolved it through the presentation of evidence at sentencing. U.S. v. Walker, 160 F.3d 1078 (6th Cir. 1998).
6th Circuit holds sodium bicarbonate is not necessary for crack. (240) Defendant argued that because the cocaine base seized from him was not tested for the presence of sodium bicarbonate (baking soda), the government did not prove that the drug involved in his crime was crack cocaine. The Sixth Circuit held that sodium bicarbonate is not a necessary prerequisite to a court’s finding that a controlled substance is crack. The amendment defining cocaine base as crack does not define crack as being manufactured in any particular way. Although crack is “usually” prepared with sodium bicarbonate, this is not the exclusive preparation method recognized in § 2D1.1. Otherwise, crack dealers could avoid the harsher crack penalties simply by finding a substitute for sodium bicarbonate. U.S. v. Jones, 159 F.3d 969 (6th Cir. 1998).
6th Circuit uses crack penalties where defendant never objected during sentencing. (240) Defendant argued for the first time on appeal that the government failed to prove that the cocaine involved in his offense was crack rather than powder cocaine. The Sixth Circuit held that by filing of a notice of no objection to the PSR, defendant expressly admitted the amount and type of drugs attributed to him in the PSR. In addition, the amounts attributed to defendant were based on evidence of defendant’s sales to cooperating witnesses and information obtained from co-defendants. It was proper for the district court to rely on such testimonial evidence regarding the quantity of drugs involved. U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998).
6th Circuit relies on conduct in dismissed counts to support school zone enhancement. (240) In exchange for defendant’s plea to a single drug conspiracy count, the government dismissed several substantive charges against him, including possession of crack with intent to distribute within 1000 feet of a school. The plea agreement contemplated a guideline range of 70-87 months. It did not suggest that the sentence would be increased for activities within 1000 feet of a school. Nevertheless, relying on the PSR, the judge found that defendant possessed and intended to distribute crack within 1000 feet of a school. This resulted in a guideline range of 87 to 108 months. The judge imposed an 87-month sentence. The Sixth Circuit upheld the enhancement for selling drugs within 1000 feet of a school. The PSR reported 3 incidents of defendant selling crack near a school. Although defendant objected to the enhancement, he did not challenge the accuracy of the PSR. Instead, he merely stressed that he had not intended to plead guilty to conduct that occurred close to a school. However, the 87-month sentence was within the range contemplated by his plea agreement. U.S. v. Benjamin, 138 F.3d 1069 (6th Cir. 1998).
6th Circuit reverses downward departure based on Commission’s recommendation to eliminate 100:1 crack ratio. (240) Defendant was convicted of crack cocaine offenses. The district court departed downward on the ground that the Sentencing Commission had determined that the 100:1 crack cocaine sentencing ratio should be eliminated. The Sixth Circuit reversed. Congress made a clear policy choice in rejecting the Sentencing Commission’s elimination of the sentencing disparity, and the courts may not disregard Congress’s will in this matter. Even if the Sentencing Commission’s cocaine report constituted an open admission that it had not adequately take into consideration the alleged disparities inherent in the 100:1 ratio, Congress did take them into account when it affirmatively rejected the Sentencing Commission’s proposed amendments. Congress made a deliberate and informed decision to keep the 100:1 ratio and not to adopt the 1:1 ratio. When Congress and the Sentencing Commission disagree on sentencing matters, Congress’s view controls. U.S. v. Gaines, 122 F.3d 324 (6th Cir. 1997).
6th Circuit applies § 2D1.2 to all drug crimes where defendant involves a juvenile. (240) Defendant pled guilty to possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841. He challenged the enhancement under § 2D1.2 for involving a juvenile in a drug offense, arguing that it applies only to convictions under 21 U.S.C. §§ 859, 860, and 861. The Sixth Circuit held that § 2D1.2 applies whenever the defendant involves a juvenile in any drug offense, including § 841 offenses. Although § 2D1.2 does not list § 841 as a statute to which it applies, note 3 to § 1B1.1 says the list of statutory provisions does not necessarily include every statute covered by that guideline. The district court properly found that defendant involved a juvenile in his drug crimes. At the time of his arrest, defendant was in the company of a female juvenile who was concealing large quantities of cocaine. A witness watched defendant and the juvenile engage in drug sales, with defendant handling the larger transactions and the juvenile handling the smaller ones. U.S. v. Clay, 117 F.3d 317 (6th Cir. 1997).
6th Circuit finds departure for endangering public was really a sentence for offense with no guideline. (240) Defendants were convicted of various methamphetamine charges, including endangerment to human life while manufacturing methamphetamine, in violation of 21 U.S.C. § 858. They objected to the district court’s “upward departure” under § 5K2.13 for endangering the public welfare. The Sixth Circuit found that the “departure” was really an attempt to determine a correct sentence for defendants on the § 858 charge for which, at the time of the crime, there was no sentencing guideline. Defendants committed the charged offenses between July and October of 1989 but § 2D1.10 only became effective on November 1, 1989. The district court decided on a two point increase to defendants’ offense level as an appropriate sentence for the § 858 charge, using the unfortunate language that “an upward departure” was warranted. The judge’s only constraints under the 1987 guidelines were the 10‑year statutory maximum and the parameters of 18 U.S.C. § 3553(a)(2)(A)‑(D). U.S. v. Jennings, 83 F.3d 145 (6th Cir. 1996).
6th Circuit holds that crack is cocaine base. (240) Relying upon U.S. v. Metcalf, 898 F.2d 43 (5th Cir. 1990), defendant argued that crack is not cocaine base. The 6th Circuit rejected this argument, noting that the 5th Circuit in Metcalf determined that crack cocaine is one type of cocaine base. U.S. v. Williams, 962 F.2d 1218 (6th Cir. 1992).
6th Circuit includes state conviction in furtherance of continuing criminal enterprise in defendant’s criminal history. (240) Defendant pled guilty to involvement in a continuing criminal enterprise. He contended that it was error for the district court to include a prior state conviction in his criminal history because he had committed that offense as part of his continuing federal criminal enterprise. Guidelines § 4A1.2 (a)(1) provides that in calculating a defendant’s criminal history, a court may include “any sentence previously imposed upon adjudication of guilt, . . . for conduct not part of the instant offense.” The 6th Circuit agreed that this would generally prohibit a court from including in a defendant’s criminal history an offense which itself is an element of the instant offense. However, Application Note 3 to guidelines § 2D1.5 expressly provides that a prior sentence based on conduct which is part of the instant offense to establish a continuing series of violations shall be considered a prior sentence under § 4A1.2(a)(1) if the conviction occurred prior to the last overt act of the instant offense. Since defendant’s prior state conviction occurred before his last overt act in furtherance of the continuing criminal enterprise, the state conviction was properly included in defendant’s criminal history. U.S. v. Crosby, 913 F.2d 313 (6th Cir. 1990).
6th Circuit holds that separate sentence for distributing cocaine sample and possessing remainder violated double jeopardy. (240) Defendant was given consecutive sentences for distributing a one kilogram sample of cocaine and for possession of the remaining three kilograms held by another coconspirator. Relying on U.S. v. Palafox, 764 F.2d 558 (9th Cir. 1985) (en banc), the 6th Circuit held that when a defendant distributes a sample and possesses the remaining controlled substance for the purpose of distributing it, there is only one offense. The defendant’s “possession of the three kilograms of cocaine did not exist separately from the distribution of the sample because that distribution had as its purpose the sale of the remaining three kilograms.” Imposing separate sentences violated double jeopardy. The court noted that although this was a pre-guidelines case, a similar result would be reached under § 2D1.1 of the guidelines. Costo v. U.S., 904 F.2d 344 (6th Cir. 1990).
7th Circuit reverses where stash house enhancement violated ex post clause. (240) Defendant argued that the district court violated the ex post facto clause by applying a two-level enhancement under § 2D1.1(b)(12) for maintaining a stash house. Defendant’s drug conspiracy ended “on or about August 10, 2010” but the enhancement was not effective until November 2010. When defendant was sentenced, the controlling law in the Seventh Circuit was that the ex post facto clause did not apply because the guidelines were discretionary. See U.S. v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). However, the Supreme Court overruled Demaree in Peugh v. U.S., 133 S.Ct. 2072 (2013), holding that using the guidelines in effect at sentencing was an ex post facto violation where the guidelines had changed to the defendant’s detriment after he committed his offenses. The court ordered a remand for the limited purpose of sentencing defendant based on the correct guideline level of 38 and guideline range of 292-365 months. The limited remand did not, however, limit the district court’s discretion to hold (or not hold) further proceedings and consider further arguments to determine defendant’s sentence based on the § 3553 factors. U.S. v. Adams, __ F.3d __ (7th Cir. Feb. 26, 2014) No. 12-2379.
7th Circuit remands to decide whether drug distribution chain that resulted in death was relevant conduct. (240) Five people died after using heroin distributed by a large-scale drug trafficking conspiracy in which defendants were involved. Because five people died, the government sought a mandatory minimum penalty of 20 years under 21 U.S.C. § 841(b)(1) (A). The district court thought that it was required to impose the same penalty on all of the defendants under a theory of strict liability. The Seventh Circuit reversed, holding that the court must make specific findings as to whether each defendant’s relevant conduct encompassed the distribution chain that caused a victim’s death. Where defendant directly distributed drugs or used intermediaries to distribute drugs that result in death, there is no requirement that the death be reasonably foreseeable However, before the court can impose the 20-year penalty, the court must find that the distribution chain that led to the individual’s death was relevant conduct under § 1B1.3(a)(1)(B). U.S. v. Walker, 721 F.3d 828 (7th Cir. 2013).
7th Circuit upholds stash house enhancement based on frequency and significance of drug deals. (240) Defendant challenged a sentencing enhancement under § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. The Seventh Circuit upheld the enhancement. Although defendant’s residence was not used exclusively as a “stash house,” he stored and sold cocaine there for three years on a daily basis to ten regular customers, plus additional customers who came to his home. Police also located four firearms in his home. Given both the frequency and significance of the illicit activities conducted on the premises, application of the § 2D1.1(b)(12) increase was clearly warranted. While defendant’s intermittent employment as a day laborer suggested some gainful activity other than drug dealing, the district court’s conclusion that his primary source of livelihood was his drug dealing was sound. U.S. v. Flores-Olague, 717 F.3d 526 (7th Cir. 2013).
7th Circuit finds priors involving phony versions of illegal drugs were controlled substance offenses. (240) Indiana has three categories of drug crimes: (1) conduct related to controlled substances; (2) counterfeit-substance crimes, which do not include non-controlled substances passed off as street drugs; and (3) “look-alike” drug offenses, which involve non-controlled substances held out as controlled substances. Defendant had previously been convicted in Indiana of a so-called “look-alike” drug offense. The district court assigned defendant an enhanced offense level under § 2K2.1(a) (4)(A) for committing his firearms offense after being convicted of a controlled substance offense. The Seventh Circuit held that the “look-alike” drug offense constituted a “controlled substance offense,” which under § 4B1.2 includes state law offenses related to controlled or counterfeit substances punishable by imprisonment for a term exceeding one year. Although defendant was not convicted under the Indiana law relating to “counterfeit substances,” but under the law related to a substance masquerading as a controlled substance, the panel concluded this distinction did not matter under federal law. U.S. v. Hudson, 618 F.3d 700 (7th Cir. 2010).
7th Circuit upholds 300-month sentence for drug and firearm offenses. (240) The district court sentenced defendant to a within-Guidelines sentence of 240 months in prison for his conviction for conspiracy to distribute heroin and other drugs and a consecutive 60-month term for using a firearm during and in relation to the drug-trafficking conspiracy. That sentence rested in part on the district court’s finding that defendant was a career offender. On appeal, defendant argued that his sentence was substantively unreasonable because he had a desire to rehabilitate, he was raised by drug-using and abusive parents, his prior offenses occurred at a young age, his prior offenses were relatively minor, and his incarceration would have an adverse impact on his minor children. The Seventh Circuit held that the district court had adequately considered defendant’s plea for leniency and that defendant’s sentence was not substantively unreasonable. U.S. v. Turner, 604 F.3d 381 (7th Cir. 2010).
7th Circuit finds court properly considered potential disparities with co-conspirators. (240) Defendant was convicted of participating in a conspiracy to distribute heroin and other drugs. The district court imposed a within-Guidelines 300-month sentence. On appeal, defendant argued that the district court erred in failing to consider unwarranted sentencing disparities between him and his co-conspirators. The Seventh Circuit held that a court that sentences within a properly calculated Guidelines range necessarily gives weight to avoiding unwarranted disparities because that is one of the goals of the Guidelines. The court also found that defendant was not similarly situated to his co-conspirators because defendant was sentenced as a career offender and his co-conspirators were not, defendant did not cooperate with the government, and defendant was facing a charge of first-degree murder. U.S. v. Turner, 604 F.3d 381 (7th Cir. 2010).
7th Circuit holds that judge’s error in determining drug type and quantity was harmless. (240) In finding defendant guilty of crack conspiracy charges, the jury made no factual findings about either drug type or quantity, because the trial took place before the Supreme Court decided Apprendi. The court initially imposed a 320-month sentence, but on remand the court imposed a harsher sentence of 360 months. Defendant complained that the sentence was invalid because there was neither a jury finding nor an admission on his part about either the drug type or quantity – both necessary to establish the statutory maximum. Without specific findings, he argued that he was entitled to be sentenced to no more than 10 years, the lowest maximum sentence specified in § 841(b) for someone with his criminal history. Because there was ample evidence that defendant could have foreseen the sale of more than 50 grams of cocaine base by members of the conspiracy, the Seventh Circuit ruled that the error was harmless. Failure to prove drug type and quantity to a jury is not the kind of structural error that justifies automatic reversal. U.S. v. Williams, 493 F.3d 763 (7th Cir. 2007).
7th Circuit approves variance well below guideline range based on defendant’s rehabilitation. (240) Defendant pled guilty to importing heroin into the U.S. The district court sentenced her to 84 months, well below the guideline range of 188-235 months’ imprisonment. The variance was based on defendant’s rehabilitation efforts, as evidenced by her certificates of achievement while incarcerated, her shame, as reflected by a letter from a fellow inmate and defendant’s own letter to the district court, and her good character, to which her friends and family attested. The government argued that defendant lied to federal agents about her knowledge of the scheme to import heroin from Kenya, and that commonplace opinions from family members and friends cannot be the basis for a downward deviation. The Seventh Circuit nonetheless affirmed the variance. Since defendant was almost certain to be deported following her release, she would be incapacitated from further drug importation to the U.S. The court did not clearly err in finding that defendant had demonstrated a commitment to reform with her words and actions. The court credited her statements of repentance, and she had already obtained numerous certificates of achievement by taking nearly every offered class at the correctional center. Although the court accepted that defendant had coordinated the smuggling, this finding was not inconsistent with its decision to give her a sentence below the recommended guideline range. U.S. v. Ngatia, 477 F.3d 496 (7th Cir. 2007).
7th Circuit approves 77-month sentence where five teens died after overdosing on medicine sold by defendant’s company. (240) Over a four-month period, defendant’s company made hundreds of sales of dextromethorphan hydrobromide (DXM), a cough suppressant found in over-the-counter medicines, but also consumed recreationally as an intoxicant. In high doses, it can be fatal. It is not a controlled substance under Title 21 of the Criminal Code, but it is regulated by the Food and Drug Administration, which requires that it be accurately labeled according to its intended use. Five of defendant’s customers, all teenage boys, died from consuming the DXM. Defendant pled guilty to three counts of introducing a misbranded drug into interstate commerce, in violation of 21 U.S.C. § 331(a). The judge sentenced defendant to consecutive prison terms totaling 77 months, which was 61 months above the top of the applicable guideline range, although below the statutory maximum of 108 months. The judge considered the lethal consequences of defendant’s acts, plus the recklessness demonstrated by the fact that he continued to sell the misbranded product after learning that two of his customers had overdosed and died. The Seventh Circuit held that the sentence was not unreasonable. Defendant arguments in favor of a lighter sentence “mock[ed] the gravity of his conduct,” and some were “in poor taste.” U.S. v. Johnson, 471 F.3d 764 (7th Cir. 2006).
7th Circuit says that de facto life sentence for drug offender was not unreasonable. (240) Defendant, 58 years old, was sentenced to 262 months in prison for his role in a conspiracy to manufacture methamphetamine. The sentence fell at the top of the advisory guideline range. The Seventh Circuit rejected defendant’s sentence that the sentence was unreasonably long, even though defendant would most likely die in prison. Defendant suffered from diabetes, and was already experiencing disturbing complications from the disease. While the probability that a convict will not live out his sentence should give pause to a sentencing court, it was not sufficient to require a below-guideline sentence. Under the mandatory guidelines, such a departure would be a discouraged ground, and even now, a below guideline sentence must be supported by “a very good explanation” rooted in the circumstances of the case. A guideline sentence is presumptively reasonable. U.S. v. Wurzinger, 467 F.3d 649 (6th Cir. 2006).
7th Circuit holds that 1000-month sentence for heroin dealer was unreasonable. (240) Defendant was the member of a gang that sold crack cocaine from a housing project in Chicago. Defendant was not directly involved in the crack-dealing scheme. His main territory was in “K-Town,” several miles to the west, and his primary product line was heroin. However, at one point, he received permission to deal heroin out of the project. During one eight-week period in 2000, defendant sold about eight kilograms of heroin from this new location. In the current case, he pled guilty to five counts relating to heroin sales he made in 2002 from his house in K-Town. The district court imposed a 1000-month sentence, holding him responsible not only for the 110 grams of heroin involved in the 2002 counts of conviction, but also the eight kilograms of heroin he sold in 2000 at the housing project and the more than 15 kilograms of crack sold from the housing project. The Seventh Circuit found the 1000-month sentence was unreasonable. The connection between 2002 heroin sales and the sales counted by the court as relevant conduct was tenuous. The counts of conviction involved five sales of heroin in K-Town in the summer of 2002, two miles away from housing project and two years after defendant’s alleged involvement with the conspiracy there. The crack sales from the housing project were even more tenuously related to defendant’s 2002 heroin sales. Although defendant’s 2000 heroin sales may have benefited from the security and other organizational structure already in place there, this at most made the crack sales relevant conduct to the heroin sales that took place there in 2000. It did not make it relevant to defendant’s sale of heroin in K-Town in 2002. At most, defendant was responsible for about eight kilogram of heroin, which would result in a guideline range of 360 months to life. U.S. v. Bullock, 454 F.3d 637 (7th Cir. 2006).
7th Circuit says court erred in failing to cap offense level. (240) Guideline § 2D1.1 of the 2002 Sentencing Guidelines states that if the defendant received an adjustment under § 3B1.2 for a mitigating role adjustment, the base offense level shall not be more than 30. The government conceded, and the Seventh Circuit found, that the district court erred by failing to cap defendant’s offense level at 30. The court should have begun with a base level of 30 and then subtracted any negative adjustments, such as a mitigating role. Of course on remand, in accordance with U.S. v. Booker, 543 U.S. 220 (2005), the district court is to treat the guidelines as advisory rather than mandatory. However, the district court must consider the correct guideline range when determining a new sentence, but may “tailor the sentence in light of other statutory concerns as well.” U.S. v. Jackson, 410 F.3d 939 (7th Cir. 2005).
7th Circuit upholds use of murder cross-reference. (240) Defendant, the former president of a motorcycle gang, pled guilty to using the gang’s clubhouse to sell drugs. The district court found that defendant had murdered Melby, a member of the gang, and applied the cross-reference in U.S.S.G. § 2D1.1(d)(1). This increased defendant’s penalty from a range of 121-151 months to a sentence of 30 years. Defendant argued that this increase was so extreme as to require the government to show clear and convincing evidence that he killed Melby. The Seventh Circuit found it unnecessary to decide what standard of proof was required, because the evidence supported a finding of guilt even under the more stringent clear and convincing standard. A friend testified that defendant told him in detail how he had killed Melby because he thought Melby had stolen money and drugs from him. To support his story, the friend took the investigating officer to his home and pulled out an undated letter describing the killing, the fear that caused the friend to keep the story to himself, and the guilt he felt. A co-conspirator who helped defendant dispose of the body unwittingly supported the story. During a taped conversation with several thinly veiled references to the murder, the friend asked “Who else knows?”, to which the co-conspirator replied “I ain’t got the slightest. Only thing I know is you do and I’ve never really liked that.” Finally, several other witnesses told stories consistent with the friend’s account. The district court found all of these witnesses credible. U.S. v. Boos, 329 F.3d 907 (7th Cir. 2003).
7th Circuit holds that defendant affirmatively waived right to challenge crack cocaine finding. (240) When defendant first raised the possibility of contesting the court’s finding of crack, rather than powder cocaine, the government acknowledged that defendant could appeal the finding. Immediately following the colloquy at which the prosecutor informed defendant that he could appeal the issue, the district court offered to continue the proceedings until defendant had the opportunity to speak with counsel. The court then held another hearing several weeks later. At that time, the court asked whether defendant intended to dispute the court’s finding that he possessed crack. Defense counsel responded, “We are not challenging the issue of crack, Judge.” The Seventh Circuit found that this statement constituted an affirmative waiver of this challenge, and foreclosed appellate review of the matter. By agreeing not to contest the crack/powder cocaine distinction before the district court, defendant precluded the court from establishing on the record the factual justifications that supported its decision. U.S. v. Johnson, 289 F.3d 1034 (7th Cir. 2002), abrogation on other grounds recognized by U.S. v. Vaughn, 433 F.3d 917 (7th Cir. 2006).
7th Circuit upholds application of drug offense murder cross-reference for one defendant but not two others. (240) Several defendants were convicted of crimes arising out of their participation in a large drug conspiracy. Although defendants Spradley, Jones and White were acquitted of murdering an informant, the district court applied the cross reference in § 2D1.1 to sentence them under § 2A1.1, the first-degree murder guideline. The Seventh Circuit found sufficient findings to support the application of the murder cross reference to Spradley, but not to Jones and White. The court inferred from the three defendants’ participation in the cover-up of the murder that they knew the victim had been murdered as a result of his informant activities. However, the district court did not address § 2A1.1’s premeditation requirement. The question was whether it was reasonably foreseeable to Spradley, Jones and White that the victim was killed, with malice aforethought (premeditation), in furtherance of the conspiracy. The findings as to Spradley were sufficient. Based on testimony that Spradley had confronted the victim about his rumored informant activities, the court found that Spradley knew that the victim had been killed to keep him from relaying any more information to police. However, there was no similar evidence about Jones and White. Their participation in the cover-up of the murder did not support the inference that it was reasonably foreseeable that the informant would be murdered with malice aforethought. U.S. v. Thompson, 286 F.3d 950 (7th Cir. 2002).
7th Circuit holds that Apprendi error not plain where there was overwhelming evidence of drug quantity. (240) After the case was remanded by the Supreme Court for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Seventh Circuit considered whether defendant’s unpreserved Apprendi claim met the four-prong plain error test. The panel ruled that defendant met the first three prongs, but failed to meet the fourth prong of the test. Because the issue of drug quantity was not submitted to the jury, the district court erred when it sentenced defendant to 40 years on each drug possession conviction. Apprendi made it apparent that these errors were plain. Also, because these errors increased defendant’s sentences by 20 years, there was no question that the error affected his substantial rights. See U.S. v. Mietus, 237 F.3d 866 (7th Cir. 2001). However, defendant could not establish that the sentencing errors seriously affected the fairness, integrity, or public reputation of the judicial proceedings. There was overwhelming evidence for each 40-year count that defendant possessed more than five grams of crack. The police arrested him twice, each time recovering more than five grams of crack. Defendant never disputed the quantities involved, arguing only that he possessed the drugs for personal use. U.S. v. Robinson, 250 F.3d 527 (7th Cir. 2001).
7th Circuit holds that government proved that substance was crack. (240) On the audio recordings, several gang members spoke of “cooking” the cocaine. The police testified to seizures of small bags containing a lumpy, rocklike substance. Defendants offered nothing to suggest that the conclusions of the gang members and the police officer might have been mistaken. Based on this sentencing record, the Seventh Circuit held that the government adequately proved that the substance being sold was crack. U.S. v. Wilson, 237 F.3d 827 (7th Cir. 2001).
7th Circuit says testimony of veteran police officer and chemist supported crack finding. (240) A police officer who searched defendant’s apartment testified, based on his experience in investigating drug cases, that the substance police seized from defendant was crack. The inventory report that he prepared described a number of “white-yellow chunky substance[s].” A government forensic scientist testified that his analysis of the cocaine showed that the substance was cocaine base rather than cocaine powder. He also testified that, based on the appearance of the cocaine base (chunky, off-white solids) and the manner in which it was packaged (knotted plastic baggies), the substance found in defendant’s apartment was crack. The Seventh Circuit held this testimony of a veteran drug agent and the forensic chemist, combined with direct evidence of the substance’s appearance and packaging, adequately supported the court’s finding that the substance was crack. Both government witnesses testified, based on the appearance and packaging of the substance, that they believed it was crack. Moreover, the police report description of the visual characteristics of the cocaine base comported with the description of crack in the guidelines. U.S. v. Linton, 235 F.3d 328 (7th Cir. 2000).
7th Circuit holds that indictment’s failure to specify statute was harmless error. (240) Defendant complained that his indictment did not specify whether he was being charged under 21 U.S.C. § 846, the drug conspiracy statute, or 18 U.S.C. § 371, the general conspiracy statute. Because of this ambiguity, defendant contended that he should have been sentenced under § 371, which has a statutory maximum of 60 months, rather than § 846, which has a minimum sentence of 120 months. However, an error in the citation of the statute charged in an indictment is not a ground for reversal unless the error misled the defendant to the defendant’s prejudice. Fed. R. Crim. P. 7(c)(3). The Seventh Circuit found that defendant was not misled by the error because he was informed at his initial hearing before a magistrate that he faced a possible sentence of ten years to life, and he signed two documents that indicated he was being charged under § 846. Also, at trial, the government proposed instructions citing § 846 and defendant did not object to these instructions. Defendant also complained that the general verdict the jury returned was ambiguous because the government alleged and proved overt acts in furtherance of the conspiracy, which was consistent with § 371. However, the jury was instructed that they need not find that defendant committed any overt acts in order to convict him. Thus, there was no ambiguity as to which statute defendant was charged with or convicted under, and any error in the indictment was harmless. U.S. v. Brumley, 217 F.3d 905 (7th Cir. 2000).
7th Circuit relies on addict’s testimony that he bought crack from defendant. (240) An admitted crack addict testified that he bought crack from defendant at least 15 times. The Seventh Circuit upheld the district court’s finding that defendant distributed the crack form of cocaine. The government is not required to perform scientific testing to determine if the cocaine base in question is crack. Witness testimony alone may provide a sufficient basis for a trial judge to determine that the form of cocaine base sold by the defendant was crack. Previous cases have held that the testimony of addicts may establish whether crack was the drug involved since “those who smoke, buy, or sell this stuff are the real experts of what is crack.” U.S. v. Bradley, 165 F.3d 594, 596 (7th Cir. 1999). U.S. v. Pigee, 197 F.3d 879 (7th Cir. 1999).
7th Circuit upholds finding that substance was crack rather than another form of cocaine base. (240) Defendant argued that the government failed to establish that the controlled substance involved in his offense was crack cocaine rather than another form of cocaine base. The Seventh Circuit disagreed. Defendant pled guilty to distributing “a mixture and substance containing cocaine base, commonly known as crack cocaine.” At his change of plea hearing, the court and the government consistently referred to the drugs defendant distributed as crack cocaine. Further, defendant answered “yes” when asked by the district court if the facts presented by the government were “essentially correct.” At the initial phase of the sentencing hearing, defendant agreed that he had sold crack to Mandley. At the July continuation of that hearing, defendant admitted distributing cocaine base. During that hearing, the court not only viewed the cocaine, but also was presented with information from people who were familiar with crack cocaine, including two veteran drug enforcement agents and two experienced drug users and buyers. At least five people with a vast amount of experience in dealing with crack identified the substance as crack cocaine. U.S. v. Branch, 195 F.3d 928 (7th Cir. 1999).
7th Circuit holds that testimony by chemist and drug dealers established drug was crack. (240) During defendant’s flight from police, he dropped a bag containing 7.26 grams of cocaine base. Based on the testimony of two street-level crack dealers, the district court attributed two additional ounces of crack to defendant. The Seventh Circuit held that the government met its burden of proving that the substance was crack rather than powder cocaine. The chemist who analyzed the drug in the bag defendant dropped determined that it was cocaine base. Both dealers, who were experienced crack dealers, testified that the drug that defendant threw down and the police officer retrieved appeared to be crack. One dealer testified that the drug he delivered to defendant was crack, and that the drug he and defendant sold on the street was crack. The arresting officer described the bag as containing an “off-white, rock-like substance.” The testimony of drug dealers and addicts can be credible because “those who smoke, buy, or sell this stuff are the real experts on what is crack.” U.S. v. Griffin, 194 F.3d 808 (7th Cir. 1999).
7th Circuit remands for determination of whether defendant admitted substance was crack. (240) The government claimed that defendant admitted that he distributed crack by pleading guilty after being informed that he was charged with distribution of crack. Also, defendant signed a stipulation stating that he “distributed cocaine base (commonly referred to as ‘crack’).” The Seventh Circuit found insufficient evidence that defendant’s admission was knowing; therefore, the admission did not establish that the drug was crack rather than another form of cocaine base. At the time of sentencing, the district court did not have the benefit of U.S. v. Adams, 125 F.3d 586 (7th Cir. 1997), which held that the government has the burden of proving that the drug distributed was crack instead of another form of cocaine base, and that a defendant’s admission that he distributed crack must be knowing and voluntary. At the time of sentencing, the distinction between crack and cocaine base was not clear. Thus, the pre-Adams references to the drug as crack were not sufficient to establish that the drug was crack and that defendant understood the difference between crack and other forms of cocaine base. The terms “crack” and “cocaine base” were used interchangeably by the parties, indicating that they may not have understood the legal difference between the two. U.S. v. Garrett, 189 F.3d 610 (7th Cir. 1999).
7th Circuit finds sufficient evidence to support crack cocaine finding. (240) On defendant’s first appeal, the Seventh Circuit remanded to determine if defendant had waived his right to challenge the use of crack penalties, and if not, whether the government could prove by a preponderance of the evidence that the substance was crack rather than powder cocaine. The district court concluded that defendant had waived his right to challenge the enhanced penalties, and even if he had not, the trial record established that the substance was crack. On appeal, the Seventh Circuit did not determine the waiver issue, because there was sufficient evidence to sustain the district court’s finding that the substance was crack. The indictment charged defendant with the distribution and possession of “crack cocaine,” defense counsel and the court referred to the substance as crack cocaine at trial, witnesses testified that defendant was involved in distributing “crack cocaine,” a co-defendant admitted that he had been involved in crack cocaine distribution with defendant, and agents testified that defendant admitted involvement in crack cocaine distribution. The fact that some witnesses used the term “drug” or “dope” or “cocaine” interchangeably with the term “crack” did not mean that the substance was not crack. U.S. v. Earnest, 185 F.3d 808 (7th Cir. 1999).
7th Circuit relies on testimony of participants that drugs sold by defendant were crack. (240) On six occasions, an undercover officer purchased crack from defendant through an informant. The Seventh Circuit held that the government met its burden of proving that the substance involved in the transactions was crack rather than another form of cocaine base. The detailed testimony of the agent and the informant about what they said and did and what defendant himself said during the deals left no doubt that crack was the drug involved in the sales. “[T]hose who smoke, buy, or sell this stuff are the experts on what is crack.” Their testimony, by itself, met the government’s burden. Moreover, scientific lab reports said the substances sold were “cocaine base,” and an experienced DEA agent testified that when an analyzed substance is “crack,” the chemist’s report calls it “cocaine base.” However, the district court did err in concluding that one of the six transactions involved the non-crack form of cocaine base. The DEA agent identified all of the drugs as crack, the lab report indicated that each substance was cocaine base, and each substance was “hard and rock-like,” the kind of drug typically ingested by smoking. U.S. v. Bradley, 165 F.3d 594 (7th Cir. 1999).
7th Circuit says statutory maximum for crime of conviction controls. (240) Defendant pled guilty to attempting to manufacture methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The guideline normally applicable to this offense is § 2D1.1. However, because defendant admitted that the fire in his apartment endangered the lives of persons in other apartments, the court sentenced him under § 2D1.10, the guideline applicable to endangering human life while manufacturing illegal drugs. Defendant’s 135-month sentence exceeded the 10-year maximum for 21 U.S.C. § 858, which makes it a felony to endanger human life while making drugs. Defendant argued that since the judge chose § 2D1.10 as the applicable guideline, the judge should have respected the maximum punishment under § 858. The Seventh Circuit held that defendant’s sentence was limited by the statutory maximum for the offense of conviction, rather than the statutory maximum for the stipulated offense. The statutory maximum for attempting to manufacture methamphetamine is 30 years. Therefore, defendant’s 135-month sentence was lawful. U.S. v. Loos, 165 F.3d 504 (7th Cir. 1998).
7th Circuit finds sufficient evidence to support use of crack penalties. (240) Defendant was convicted of two counts of distributing cocaine base. He contended that he was improperly sentenced for the sale of crack cocaine rather than some other form of cocaine base. The Seventh Circuit found adequate evidence to support the crack sentence. The record reflected that defendant and a co-conspirator worked together to obtain and distribute crack cocaine, and that an undercover agent negotiated with the co-conspirator for crack cocaine. The agent paid a price commensurate with the going rate for crack cocaine. More importantly, the substance was admitted into evidence and made available for inspection by the court and jury. The jury found defendant guilty of distributing “cocaine base (commonly known as ‘crack’).” U.S. v. Sewell, 159 F.3d 275 (7th Cir. 1998).
7th Circuit holds that cross-reference to murder did not violate due process. (240) Defendant was convicted of a drug conspiracy. The district court found that defendant had murdered one man and had directed a co-conspirator to murder another man. The murders had been committed because defendant believed that the victims were going to inform the police of his drug activities. Section 2D1.1(d)(1) directs a court to apply § 2A1.1, the first-degree murder guideline, where a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111. This increased defendant’s offense level to 43, and resulted in a life sentence. The Seventh Circuit rejected defendant’s claim that the cross-reference violated due process. Although increased precautions may be necessary where the use of a cross-reference dramatically alters the balance between trial and sentencing, this was not such a case. The enhancement only increased defendant’s offense level from 39 to 43. This was not the type of dramatic increase which would allow the sentencing enhancement to become the tail which wags the dog of the substantive offense. U.S. v. Meyer, 157 F.3d 1067 (7th Cir. 1998).
7th Circuit holds that evidence supported use of crack penalties. (240) Defendant was convicted of cocaine and firearms charges. He argued that he should not have been sentenced under the crack cocaine penalties because the evidence at trial did not establish that the cocaine base involved in his offense was in the form of crack cocaine. The Seventh Circuit found sufficient evidence that it was crack. First, a government chemist testified that she analyzed the substance and identified it as containing cocaine base, and that she knew cocaine base by its slang term “crack.” Thus, she appeared to be limiting the term cocaine base to crack, as does the guideline. She also noted that the cocaine base was in a hard rock-like form with a very high level of purity. Also, numerous witnesses at trial characterized the substance as crack cocaine, from the police officer to the defense witnesses. In fact, the defense expert on drug trafficking stated that the substance appeared to be crack cocaine. U.S. v. Taylor, 154 F.3d 675 (7th Cir. 1998).
7th Circuit upholds finding that defendant was involved with crack rather than powder cocaine. (240) Defendant argued that the district court erroneously based his sentence on crack rather than powder cocaine. The Seventh Circuit upheld the court’s finding that defendant was involved in distributing crack cocaine. In its detailed sentencing order, the district court found that the PSR was accurate in its finding that defendant was accountable for 9.56 kilograms of crack based upon his relevant conduct, his admissions to the agents, and the amounts charged in the indictment. The court also found that the testimony presented at sentencing and at trial supported the government’s position. In addition, defendant specifically admitted to agents that he was involved in the crack cocaine business. U.S. v. Mattison, 153 F.3d 406 (7th Cir. 1998).
7th Circuit holds counsel’s admissions waived right to challenge crack finding. (240) Defendant pled guilty to conspiracy to distribute cocaine and cocaine base. He contended that the sentencing court erred in concluding that he dealt crack cocaine and not powder cocaine. The Seventh Circuit held that defendant waived his right to challenge on appeal that he distributed crack. At sentencing, defendant’s attorney stated at least twice that defendant dealt over 50 grams of crack. After strenuously cross-examining the government’s witnesses in an effort to show that the government could not establish that the cocaine was crack and not another form of cocaine base, defense counsel conceded, in one sentence, that defendant dealt 50 grams of crack. Although his motivation may have been to avoid antagonizing the court, defense counsel did not preserve the issue for appeal. U.S. v. Valenzuela, 150 F.3d 664 (7th Cir. 1998).
7th Circuit permits judge to hold evidentiary hearing before ruling on § 2255 motion. (240) Defendant pled guilty to a crack cocaine conspiracy. He filed a motion under 28 U.S.C. § 2255 based on recent caselaw requiring the government to prove that a defendant is involved with crack rather than powder cocaine in order for the enhanced crack penalties to apply. The district judge held an evidentiary hearing on the motion to determine whether the substance involved in defendant’s crime was crack. The judge found that defendant possessed crack, and denied the § 2255 motion. Defendant argued that it was error for the court to conduct such a hearing and that it should have made its decision on the basis of the record as it existed before he filed the § 2255 motion. The Seventh Circuit ruled that defendant’s claim that the judge was stuck with the record as it existed when his motion was filed was meritless. Defendant’s argument elevated form over substance because the judge could simply grant the motion, vacate the sentence, and then open a new sentencing hearing where the determination that the cocaine was crack would follow. Biami v. U.S., 144 F.3d 1096 (7th Cir. 1998).
7th Circuit finds mid-range sentence shows court would not have departed under Note 14. (240) Defendant argued that the district court erred by not considering note 14 to § 2D1.1 in sentencing him. Note 14 says that in the absence of certain disqualifying factors, the court may consider a downward departure to offense level 36 if (1) the amount of controlled substance for which defendant is accountable results in a base offense level greater than 36, (2) the offense over-represents the defendant’s culpability, and (3) the defendant had a mitigating role in the offense. If the court had applied this Note, defendant would have had a sentencing range of 151-188 months. The Seventh Circuit found no merit in this argument, because defendant had a guideline range of 188-235 months and the court sentenced him to 200 months. There was no reason to believe that the judge thought defendant deserved a sentence of less than 188 months. Also, defendant never asked the judge to consider note 14, so the argument was waived absent plain error. U.S. v. Wilson, 134 F.3d 855 (7th Cir. 1998).
7th Circuit reverses sentence based on powder where defendant bought crack. (240) Defendant, a crack dealer, bought crack cocaine from a cooperating witness. Defendant contended, and was supported by audio-tapes, that he preferred to buy powder cocaine and convert it to crack himself to ensure uniform quality for his customers. When the witness told defendant that only crack was available, however, defendant bought crack. The district court held that because of the government’s involvement in determining the type of drug involved, defendant should only be sentenced for powder cocaine. The Seventh Circuit reversed. The judge does not have an equitable power to sentence defendant as if he had committed the crime he preferred to commit, rather than the crime he actually committed. “As if” sentencing is not authorized by federal law. Judges must sentence defendants for their actual crimes. U.S. v. Wilson, 129 F.3d 949 (7th Cir. 1997).
7th Circuit remands to decide if defendant waived challenge to crack sentence. (240) Defendant pled guilty to a “cocaine base” conspiracy and the district court sentenced him as if he had dealt in “crack.” He argued that there is a distinction between cocaine base and crack and the government failed to prove that the substance was crack. The Seventh Circuit agreed, and remanded to decide whether defendant waived his right to contest the enhanced penalties. The indictment charged him with distributing and possessing crack cocaine. Defendant, counsel and the court referred to the substance as crack cocaine at trial, witnesses testified that defendant was involved in distributing crack cocaine, a co-defendant admitted that he had been involved in distributing crack cocaine with defendant, and the court found that defendant had not testified reliably. However, the lab analysis only reported the substance as 54.6 grams of cocaine base. The district court must determine whether these multiple repetitions of the word crack constituted a knowing waiver by defendant. If not, the government must prove by a preponderance of the evidence that the substance was crack. U.S. v. Earnest, 129 F.3d 906 (7th Cir. 1997).
7th Circuit holds no special skill is required for captain/navigator enhancement. (240) Defendant pleaded guilty to conspiracy to import marijuana. The district court applied a § 2D1.1(b)(2)(B) enhancement because defendant acted as the captain or navigator of the boat used to transport the marijuana from Jamaica. Defendant argued that the captain/navigator enhancement requires a showing of “special skill” as used in § 3B1.3. The Seventh Circuit disagreed, reasoning that such a requirement would make the enhancement duplicative of the special skill enhancement in § 3B1.3. Defendant definitely acted as the captain of the boat carrying the marijuana. He told a co-conspirator that he would “captain the trip”, listed himself as the captain on Customs documents, and directed the operation of the vessel. It was irrelevant that defendant was a poor captain and got lost several times. The enhancement was not double counting. His offense of importing marijuana covered a multitude of methods used by smugglers to bring drugs to the U.S., and the guideline did not necessarily include the conduct of captaining a boat. U.S. v. Senn, 129 F.3d 886 (7th Cir. 1997).
7th Circuit affirms sentence at top of range for role in cocaine conspiracy. (240) Defendant was convicted of conspiracy to distribute cocaine and various counts of money laundering. Defendant argued that the district court abused his discretion by sentencing her at the upper end of her guideline range. The Seventh Circuit found that the record supported defendant’s placement at the top of her guideline range. Defendant was a “player” in a conspiracy that dumped substantial amounts of cocaine onto the streets. She was able to front multi-kilo deliveries, she threatened a buyer at one point when payments were slow, and she recruited couriers on several occasions. U.S. v. Thompson, 126 F.3d 1032 (7th Cir. 1997).
7th Circuit requires proof that drug is crack, before applying enhanced penalties. (240) Defendant claimed that he pled guilty to trafficking in cocaine base and the government offered proof of cocaine base, but the district court sentenced him as if he pled guilty to crack. The Seventh Circuit, agreed with the Eleventh Circuit’s holding in U.S. v. Munoz-Realpe, 21 F.3d 375 (7th Cir. 1994) that the 100:1 sentencing enhancement in § 2D1.1 applies only to crack. Therefore, the government must prove that the substance is crack, rather than cocaine base. However, this did not mean defendant received ineffective assistance and was entitled to withdraw his plea. Counsel’s failure to object to the “crack” enhancement, even if it amounted to ineffective assistance, did not affect the validity of the guilty plea. Defendant was charged with possession of cocaine base and pled guilty to that charge. Counsel’s deficiency affected only the sentence, not the validity of the conviction. Sentencing information may be relevant to entry of a guilty plea if the defendant was misled to his prejudice. However, there was no prejudice here—defendant’s argument would have to be that he might get a lighter sentence than he otherwise expected. That is not prejudicial. U.S. v. Adams, 125 F.3d 586 (7th Cir. 1997).
7th Circuit holds that cocaine need not be processed with sodium bicarbonate to be crack. (240) Defendant pled guilty to a cocaine base offense. He argued that the government did not prove the substance was crack, because it did not prove that sodium bicarbonate was used to process the cocaine. The Seventh Circuit held that cocaine need not be processed with sodium bicarbonate to be crack. The 1993 amendment to § 2D1.1(c) states that crack is “usually” prepared by processing cocaine hydrochloride and sodium bicarbonate, and “usually” appears in a lumpy, rocklike form. The use of the word “usually” serves merely to illustrate a common method of conversion. Otherwise, dealers could avoid crack penalties by finding a substitute for baking soda in production, or by crushing the rocks so that the final product resembled powder. Although crack might generally be produced using sodium bicarbonate, production with sodium bicarbonate is not the exclusive preparation method. U.S. v. Abdul, 122 F.3d 477 (7th Cir. 1997).
7th Circuit upholds sentence for crack where powder was immediately cooked into crack. (240) Defendants were convicted of a conspiracy to distribute crack cocaine. The Seventh Circuit upheld the court’s decision to base their sentences on crack instead of powder cocaine. The evidence demonstrated that any powder cocaine passing through these dealers’ hands was immediately cooked into crack. U.S. v. Lewis, 117 F.3d 980 (7th Cir. 1997).
7th Circuit finds sufficient evidence that substance was crack rather than another form of cocaine base. (240) Defendant argued that the government did not prove, and the court did not find, that he sold crack cocaine to an undercover officer rather than some other form of cocaine base. The Seventh Circuit found there was sufficient proof to sentence him for crack since defendant admitted at his plea hearing to selling crack, the parties stipulated at trial that the substance he sold and taken from his ashtray was crack, and the jury found defendant guilty to conspiring to distribute a form of cocaine “commonly known as crack.” Defendant and the agent negotiated over “crack” in the course of their dealings, and the lab report attached to the PSR indicated that the substance was a rocklike form of cocaine base. U.S. v. Benjamin, 116 F.3d 1204 (7th Cir. 1997).
7th Circuit upholds decision to credit defendant’s version despite lack of findings. (240) Defendant sold cocaine to a police informant, and attempted to sell wax that he claimed was cocaine to an undercover DEA agent. The PSR stated that defendant admitted selling one and one half kilograms of cocaine during the preceding two months. The government argued that this was crack cocaine. Defendant claimed he was talking about powder cocaine and that he neither bought nor sold this cocaine, but was merely aware that it was coming into the area. The Seventh Circuit held that the district court properly erred on the side of caution and adopted the defendant’s version of the amount and type of drugs involved. Although the district court failed to make any express findings about the amount or type of cocaine involved, it was apparent from the transcript of the sentencing hearing that the court considered the PSR and defendant’s testimony and ultimately concluded that the government failed to carry its burden of proof. U.S. v. Buchannan, 115 F.3d 445 (7th Cir. 1997).
7th Circuit upholds proof that substance defendant sold was crack. (240) Defendant argued that the government failed to prove by a preponderance of the evidence that the substance he sold was “crack” cocaine. The Seventh Circuit held that witness testimony established that the substance was crack. At a hearing to resolve defendant’s objections to the PSR, two witnesses testified about the nature of the substance they purchased from defendant. An undercover agent testified that he requested crack cocaine from defendant and that defendant sold him a lumpy, off-white rocklike substance that defendant said was crack. A DEA investigator testified that crack cocaine is a lumpy rocklike substance and was the only type of cocaine base sold in the relevant geographic area. Moreover, in a voluntary statement taken by an undercover agent after defendant’s arrest, defendant described the product he sold as crack cocaine. Defendant did not offer any witnesses to testify to the contrary. A laboratory report found the substance’s chemical composition consistent with crack. U.S. v. Wade, 114 F.3d 103 (7th Cir. 1997).
7th Circuit holds that government proved substance was crack cocaine rather than powder cocaine. (240) Defendant argued that the government failed to prove that the cocaine found in his car was crack cocaine rather than cocaine hydrochloride. The Seventh Circuit disagreed. A chemist who testified for the government agreed that the substance was crack cocaine. U.S. v. Green, 111 F.3d 515 (7th Cir. 1997).
7th Circuit sentences for crack rather than powder cocaine. (240) Defendants were convicted of drug conspiracy charges. They argued there was insufficient evidence to support their enhanced penalties for distributing cocaine base rather than powder cocaine. The Seventh Circuit disagreed. Witness after witness testified that the substance defendants distributed was “crack.” This testimony was particularly persuasive because the guidelines define “crack” with reference to how that term is used on the street. In addition, one witness testified to viewing a defendant cook powdered cocaine into crack using baking soda, the usual method of manufacturing crack. U.S. v. Hall, 109 F.3d 1227 (7th Cir. 1997).
7th Circuit approves inference that substance that did not harden when cooked was cocaine. (240) Defendant sold cocaine and cocaine base. He argued that the district court erred in attributing to him two kilograms he sold to a cooperating witness. The witness testified that after receiving the substance he attempted to “cook” one ounce, but that it would not harden as it cooled. The witness then returned the two kilograms to defendant for a refund. Relying on government evidence that cocaine hardens when cooked, defendant argued that the government did not prove that the substance he sold was cocaine. The Seventh Circuit disagreed, since there was ample evidence that defendant sold cocaine, and the witness never testified that he believed the substance was a look-alike substance not containing drugs. The government could not be expected to anticipate all possible arguments and could not be faulted for not presenting other explanations for the substance’s failure to harden. U.S. v. Saulter, 60 F.3d 270 (7th Cir. 1995).
7th Circuit holds that judge was aware of authority to depart based on agent’s coercion. (240) Defendant requested a downward departure because she initially intended to buy only two kilograms of cocaine, but was coerced by an undercover agent into buying 10 kilograms. The district court denied the motion, finding that defendant was not subject to serious coercion or duress when she agreed to buy the 10 kilos. The 7th Circuit held that the refusal to depart was not reviewable, since the judge was aware of her authority under § 5K2.12 to depart downward based on duress or coercion. Judge Ripple concurred separately because he was disturbed that the undercover agent had attempted to increase the amount of the drug sale to ensure that defendant would be prosecuted by the federal government, rather than by the state. U.S. v. Steels, 38 F.3d 350 (7th Cir. 1994).
7th Circuit holds that 35 balloons of marijuana smuggled into prison is not a “small amount.” (240) Under 21 U.S.C. § 841(b)(4), any person who violates subsection (a) by distributing a small amount of marijuana for no remuneration shall be sentenced under § 844, a misdemeanor provision. Defendant conspired to smuggle 35 balloons of marijuana weighing 17.2 grams into a federal prison. The 7th Circuit held that this was not a “small amount” of marijuana. Congress left “small amount” for the courts to decide, indicating that weight was not the only consideration. Although that same quantity might be considered “small” when distributed in the general community, 35 balloons of marijuana, intended for use by three people, relative to the availability of drugs in a prison was not, for penalty purposes, “small.” U.S. v. Damerville, 27 F.3d 254 (7th Cir. 1994).
7th Circuit upholds use of §2D1.l, rather than §2D1.11, for conspiring to manufacture PCP. (240) Defendant was convicted of conspiring to manufacture and possess with intent to distribute PCP in violation of 21 U.S.C. §846. He argued that the district court erred in sentencing him under §2D1.1, which applies to offenses involving manufacturing and possessing drugs with intent to distribute, rather than §2D1.11, which applies to offenses involving possession of precursor chemicals. The 7th Circuit found no error. The guidelines applicable to the underlying substantive offense apply when a defendant is convicted of conspiracy. Thus, defendant’s sentence was based on the substantive offense, 21 U.S.C. §841(a)(1). The Statutory Index references only §2D1.1 as appropriate for §841(a) violations. Defendant failed to demonstrate that his case was atypical. Although defendant challenged the government’s decision to prosecute him under §841(a), rather than §841(d), when an act violates two statutes, the government may prosecute under either, provided it does not discriminate against any class of defendants. U.S. v. Hubbard, 22 F.3d 1410 (7th Cir. 1994).
7th Circuit affirms that concurrent sentences may be imposed for conspiracy and continuing criminal enterprise violations. (240) The 7th Circuit held that it did not violate double jeopardy to impose consecutive sentences for violating 21 U.S.C. section 848 (engaging in a continuing criminal enterprise) and section 846 (conspiracy). However, because conspiracy is a lesser included offense, the punishment defendant receives cannot exceed the punishment authorized for the CCE offense. Here, the district court improperly permitted the conspiracy sentence to affect the length of the sentence for the CCE offense by grouping the two offenses together and then applying the guidelines. This resulted in offense level increases based on the quantity of drugs and defendant’s role in the offense, which would not have been possible for a CCE conviction alone. Defendant’s concurrent 365-month sentences for CCE and conspiracy was far longer than the maximum 188 month sentence defendant could have received for a CCE conviction alone. U.S. v. Bafia, 949 F.2d 1465 (7th Cir. 1991).
7th Circuit upholds upward departure based upon extraordinary quantity of drugs. (240) Defendant was found guilty of possession of 112 kilograms of heroin and 57 kilograms of cocaine. This earned defendant the maximum base offense level of 36, which a defendant would reach by possessing only 10 kilograms of heroin or 50 kilograms of cocaine. The 7th Circuit found that the extraordinary amount of drugs seized from defendant was a proper ground for an upward departure. The court rejected defendant’s argument that the initial base offense levels for drug possession only went up to 36 because the Commission “recognized the diminishing utility of quantity as a distinguishing factor.” The court also rejected defendant’s argument that because the fraud section of the guidelines explicitly allows upward departure based on the quantity of money stolen while the drug section does not contain such a specific reference, that therefore the Commission must have considered and rejected quantity-based departures for drug crimes. U.S. v. Vasquez, 909 F.2d 235 (7th Cir. 1990).
7th Circuit holds that drug guideline was proper for attempt to deal cocaine. (240) Defendant and two companions had conspired to steal an automobile that they believed contained cocaine and cash. The scheme was foiled by law enforcement officers just as the defendants were attempting to make their getaway. The defendant pled guilty to conspiracy to distribute and to possess cocaine with intent to distribute. The sentencing court applied guidelines § 2D1.4 which relates to conspiracies involving controlled substances. The defendant appealed, claiming that guidelines § 2B1.1, which relates to larceny, embezzlement and theft should have been applied. The 7th Circuit disagreed, noting that although § 2B1.1 may apply when a defendant is convicted of stealing a controlled substance, he did not plead guilty to theft, rather he pled guilty to conspiracy to distribute cocaine. The district court therefore correctly relied upon § 2D1.4. That was the guideline that most closely correlated with the offense to which the defendant pled guilty. Schetz v. U.S., 901 F.2d 85 (7th Cir. 1990).
7th Circuit holds that the scope of a conspiracy for sentencing purposes is determined by the court, not a jury. (240) The Seventh Circuit held that the district court properly denied a drug defendant’s request to have the scope of a drug conspiracy determined by a jury. Facts relevant to sentencing are determined by a judge in the federal criminal system. This is true even when, as here, factual determinations as to the scope of a drug conspiracy (i.e. the quantity of drugs distributed) will be used to determine the appropriate guideline sentence. U.S. v. Savage, 891 F.2d 145 (7th Cir. 1989).
8th Circuit holds that meth production on rural farm created substantial risk of harm. (240) Defendant pled guilty to conspiring to manufacture and distribute methamphetamine. He challenged an enhancement under § 2D1.1(b)(13) (C)(ii) for creating a substantial risk of harm to human life or the environment, noting that the meth farm was in a rural location. The Eighth Circuit held that the factors favored enhancement. A search of the farm revealed over 10 grams of pure meth, 3,100 grams of meth mixtures, and enough pseudoephedrine to produce over 164 grams of pure meth. The meth farm had three active meth labs. Numerous substances and chemicals, some in corroding tanks, and equipment used to produce meth were found throughout the entire property. These substances and chemicals were toxic and could cause explosions and fires. Though the farm was remote, defendant, his co-conspirators, the farm owner, and the officers who searched the farm were exposed to the meth labs. In addition, manufacturing occurred in residential areas and in a moving vehicle, placing additional lives at substantial risk. U.S. v. Loesel, 728 F.3d 749 (8th Cir. 2013).
8th Circuit upholds increase for maintaining drug house. (240) An informant made four controlled methamphetamine buys from defendant at the home he shared with his wife. The Eighth Circuit upheld a two-level enhancement under § 2D1.1(b)(12) for maintaining a home for the purpose of distributing a controlled substance. Although it was unclear who owned the premises, defendant and his wife lived there, used the home as their primary residence, and controlled access to the property. In addition to the four controlled buys, the government presented evidence that defendant distributed massive quantities of meth between 2004 and 2010, that he told customers they would find the meth in unusual locations, such as beside a fence post, and that he kept ledgers with the names and locations of suppliers and customers that the government recovered from the house and presented at trial. The district court did not clearly err in finding that defendant “maintained” the premises for drug distribution. U.S. v. Miller, 698 F.3d 699 (8th Cir. 2012).
8th Circuit says drug quantity charged and admitted by defendant was “floor” for sentencing. (240) Defendant admitted a quantity of drugs greater than the amount he sold during the controlled buys in which he participated. The Eighth Circuit held that the sentencing court was precluded from finding a drug quantity less than the amount charged and admitted in defendant’s plea, i.e., 500 grams of a mixture containing methamphetamine, or 50 grams of actual methamphetamine. This amount was the threshold for increasing the applicable statutory maximum from 40 years to a maximum of life imprisonment. Because crossing this threshold exposed a defendant to a larger statutory maximum, drug quantity was an element of the offense necessary for the conviction. The government charged this amount, and the district court explained that the plea would expose defendant to potential life imprisonment. Thus, the quantity was established by the conviction and necessarily served as a “floor” for sentencing purposes. U.S. v. Umanzor, 617 F.3d 1053 (8th Cir. 2010).
8th Circuit holds that evidence supported drug quantity finding. (240) Defendant contended that the drug quantity used at his sentencing was overstated, and included both the methamphetamine that he was buying from one witness, and then selling to another. He claimed that to include both weights would be double counting. The Eighth Circuit ruled that defendant did not show that the court’s drug quantity finding was clearly erroneous. The district court found that there was sufficient evidence to support its finding that “the bare minimum amount of drug involved here was 574 grams.” The court acknowledged that it had to be careful of double counting. Reviewing the record testimony, it was “readily evident that adding the frequency and quantity of drugs that defendant trafficked show[ed] that his drug quantity easily exceed[ed] the charged 500 grams.” U.S. v. Zierke, 618 F.3d 755 (8th Cir. 2010).
8th Circuit says drug quantity may be basis for rejecting minor role reduction. (240) Under § 2D1.1(a)(3), a defendant convicted of a drug-trafficking offense who qualifies for a minor role reduction under § 3B1.2 is entitled to a further offense-level reduction as his base offense level increases based on the quantity of drugs involved in his offense. At defendant’s sentencing for offenses arising out of his role as a courier for a drug-trafficking organization, the district court relied in part on the quantity of cocaine that defendant transported to deny him a reduction for his minor role in the offense. Defendant argued that because the Guidelines take the quantity of drugs into account in determining the extent of the reduction a defendant receives for a minor role in the offense, the district court erred in considering the quantity of drugs involved in his offense. The Eighth Circuit rejected this argument, holding that § 2D1.1(a)(3) does not preclude a district court from considering the quantity of drugs involved in an offense when deciding the availability of a minor role reduction. U.S. v. Adamson, 608 F.3d 1049 (8th Cir. 2010).
8th Circuit holds government need not prove intent to distribute drugs defendant took into jail upon arrest. (240) On her way to the courthouse for sentencing on methamphetamine charges, defendant was pulled over by police and arrested for outstanding traffic violations. Unbeknownst to officers, defendant possessed about 18 grams of meth at the time of her arrest. Defendant carried the meth with her to jail, where she distributed it to other inmates. Guideline § 2D1.1(b)(3) provides for a two-level increase if the object of the offense was to distribute a controlled substance in a correctional facility. Defendant argued that the enhancement was improper because the government did not prove that the object of her offense was to distribute a controlled substance in a correctional facility. The Eighth Circuit affirmed the enhancement. There was no dispute that the object of the offense was to distribute a controlled substance. The government was not required to prove that, prior to her incarceration, that she formed the intent to transport the drugs into the jail with the purpose of distributing them. U.S. v. Vanderpool, 566 F.3d 754 (8th Cir. 2009).
8th Circuit holds that operation of illegal Internet pharmacy warranted enhancement. (240) Defendant, a medical doctor, worked for an Internet pharmacy that illegally sold prescriptions drugs. Section 2D1.1(b)(5) provides for a two-level enhancement if the defendant’s crime involved the distribution of any controlled substance “through mass-marketing by means of an interactive computer service.” The Eighth Circuit upheld the application of the enhancement to defendant. A public, interactive website reachable by an ordinary web search engine is, at the least, a billboard on the information superhighway. As operated, the pharmacy website allowed the general public to read the products offered for sale, and also allowed visitors to actively shop for, select, and purchase controlled substances. Operation of an illegal Internet pharmacy of this type was sufficient conduct to warrant the application of § 2D1.1(b)(5). While the mere use of a website is not sufficient to trigger the enhancement, the operation of an interactive website, devoted to the illegal sale of controlled substances, that is freely accessible to all member of the public, is sufficiently enticing to constitute solicitation. U.S. v. Hanny, 509 F.3d 916 (8th Cir. 2007).
8th Circuit holds that four months’ probation for maintaining drug house was unreasonable. (240) Defendant owned a house in which she lived with her two sons and her ex-husband. The sons sold drugs from the house. Defendant was aware of this, and was in the residence during some of the undercover drug purchases. She was convicted of firearms charges and maintaining a residence for the purpose of distributing methamphetamine. Although her guideline range was 33-41 months, the district court sentenced her to four months’ probation. The Eighth Circuit reversed the sentence as unreasonable. A downward variance to zero prison time, where the Sentencing Commission has found that substantial prison time is indicated, requires “extraordinary justification.” Although defendant’s conduct may not have been as serious as other violations of the relevant statutes, her conduct was still criminal. Moreover, the guidelines already accounted for defendant’s minimal role in the underlying drug crimes – she received a four-level reduction under § 2D1.8(a)(2). The district court also downplayed the seriousness of defendant’s offense by positing that her only option for avoiding criminal culpability was to “eject” her sons and ex-husband from her home. However, this was not the only option. She could have asked them to stop their criminal activities. She could have threatened to call the police, and she could have actually called the police if they continued. The sentence failed to give proper weight to other statutory sentencing goals, such as the need to promote respect for the law, the need to deter others, and avoiding unwarranted sentencing disparities. U.S. v. Soperla, 494 F.3d 752 (8th Cir. 2007).
8th Circuit rejects variance based on finding that some testimony regarding drug quantity was dubious. (240) The district court calculated defendant’s advisory guideline range for his methamphetamine offenses as 188-235 months. In imposing only a 120-month sentence, the court noted that the drug amount calculated by the PSR came from the testimony of two other felons, “leaving in the Court’s mind considerable doubt as to the accuracy of the drug amounts testified to.” Thus, in varying from the guidelines range, the district court found that some testimony regarding drug quantity was dubious. The Eighth Circuit reversed, ruling that the basis for the variance was “internally inconsistent” because it contradicted the court’s implicit credibility findings made in determining the advisory guideline range. In fashioning a reasonable sentence, a district court must first calculate the advisory guideline range before applying § 3553(a) factors. The court may still determine a witness’s credibility at sentencing, but if credibility is necessary to calculate the advisory guideline range, the court cannot consider credibility as part of its § 3553(a) analysis. U.S. v. Potillo, 458 F.3d 828 (8th Cir. 2006).
8th Circuit rejects downward variance based upon defendant’s age and history of drug abuse. (240) Defendant pled guilty to methamphetamine charges, which, because of his three previous drug convictions, subjected him to an enhanced sentence under 21 U.S.C. § 851. Although his guideline range was 262-327 months’, the district court sentenced him to the statutory minimum of 120 months’ (a variance of about 54 percent from the bottom of the advisory guideline range) based primarily on his age and his history of drug abuse. The Eighth Circuit reversed, since defendant’s characteristics in these area were not exceptional. Drug addiction or abuse if not a proper reason to impose a downward variance, absent exceptional circumstances. See 18 U.S.C. § 3553(a)(5)(A); U.S.S.G. § 5H1.4. Defendant was more than a simple user of drugs. Two of his prior convictions were for distribution-related offenses, and the current offense was also for possession with intent to distribute. Defendant’s age was also not exceptional. He was 44 years old, healthy, and had no history of mental health problems. Defendant qualified as a career offender, and his drug addiction and age did not present exceptional circumstances that would warrant such an exceptional variance. U.S. v. Lee, 454 F.3d 836 (8th Cir. 2006).
8th Circuit holds that 36-month sentence for drug trafficker was unreasonable. (240) Defendant qualified as a career offender, which resulted in a guideline range of 100 to 137 months’ imprisonment. The district court deviated from the guideline range to impose a sentence of 36 months. The court cited defendant’s relative youth at the time of his earlier offenses and the fact that the last previous offense was nine years earlier. The Eighth Circuit held that the 36-month sentence, which represented a 67 percent downward variance from the bottom of the applicable guideline range, was unreasonable. While the courts are not required to give a rote recitation of each § 3553(a) factor, the court should explain both the decision to vary and the extent of the variance. Although the court’s discussion of defendant’s criminal history was relevant to “the history and characteristics of the defendant,” no other factors were discussed by the court to justify the sentence. U.S. v. Bradford, 447 F.3d 1026 (8th Cir. 2006).
8th Circuit holds that substantial downward variance was unreasonable. (240) Defendants pled guilty to methamphetamine conspiracy charges. The district court sentenced the first defendant to 12 months and one day in prison, a substantial downward variance from the bottom of her advisory guideline range. One month later, a different judge sentenced the second defendant to 87 months in prison, the bottom of her advisory guideline range. The Eighth Circuit held that the first defendant’s sentence was unreasonable, and the district court did not adequately consider a number of relevant factors in determining the second defendant’s sentence. The 12-month sentence for the first defendant was 83% below the 70-month bottom of her guideline range. An extraordinary reduction must be supported by extraordinary circumstances. While defendant’s post-offense rehabilitation was relevant in evaluating the § 3553(a) factors, it did not justify an 83% variance. Moreover, it resulted in unwarranted sentencing disparities among defendants with similar records who have been found guilty to similar conduct. While the second defendant’s sentence was presumptively reasonable, a number of circumstances made the case highly unusual. Although the prosecutor stated at sentencing that both defendants were similarly situated members of the conspiracy, the second defendant stipulated to being involved with 300 grams of pseudoephedrine, while the first defendant’s plea agreement stipulated to only 100 grams. The second defendant was the first member of the conspiracy to plead guilty, and her full cooperation played a role in the rapid guilty pleas entered by her co-conspirators. Most importantly, the court gave too little weight to the extreme disparity between the sentences imposed on similarly situated defendants. U.S. v. Lazenby, 439 F.3d 928 (8th Cir. 2006).
8th Circuit remands because it was unable to conduct meaningful review of reasonableness of sentence. (240) Defendant was convicted of drug conspiracy charges, and based on his status as a career offender, had a guideline range of 188-235 months. The district court sentenced him to the statutory mandatory minimum sentence of 60 months, stating only that “I think the mandatory minimum is sufficient penalty under the circumstances that have been placed here in the record.” The Eighth Circuit held that the record was inadequate for it to determine the reasonableness of the sentence. The court did not discuss whether a guidelines departure was appropriate, what non-guidelines § 3553(a) factors predominated, or what combination of departures and variances warranted a 60-month sentence. Although the court’s comment that the sentence was imposed “under the circumstances that have been placed here in the record,” something more was needed. U.S. v. Rivera, 439 F.3d 446 (8th Cir. 2006).
8th Circuit says 60 percent downward variance must be supported by “extraordinary circumstances.” (240) Defendant pled guilty to possessing and distributing cocaine base. His advisory guideline range was 37-48 months, and the district court imposed a 15-month sentence. The Eighth Circuit held that the 60 percent reduction was “an extraordinary variance” that was not supported by “comparably extraordinary circumstances.” Defendant’s lack of criminal history was taken into account when the safety valve eliminated an otherwise applicable mandatory minimum sentence. The small amount of crack cocaine seized during his two offenses was taken into account in determining his guideline range. Substantially reducing the resulting guidelines range sentence based upon drug quantity was unreasonable because it was a fair inference that defendant distributed additional quantities during the six months between the two drug transactions. U.S. v. Claiborne, 439 F.3d 479 (8th Cir. 2006).
8th Circuit holds that drug sentences well below advisory guideline range were unreasonable. (240) Defendants each pled guilty to drug and conspiracy charges. The first defendant had a guideline range of 57 to 71 months, but without further explanation imposed a sentence of 24 months. At the second defendant’s sentencing, the district court imposed a sentence of 120 months, 142 months below the low end of the presumptively reasonable guideline range. This was based primarily on the fact that defendant had no prior criminal history points. However, defendant’s lack of criminal history was one of the factors that determined her advisory guideline range. The Eighth Circuit vacated both sentences as unreasonable. U.S. v. McMannus, 436 F.3d 871 (8th Cir. 2006).
8th Circuit says sentence 36% below advisory guideline range was not unreasonable. (240) Defendant pled guilty to methamphetamine charges. Under the guidelines, defendant faced a sentencing range of 188-235 months. The district court found the guidelines unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), and sentenced defendant to the statutory minimum 120 month in prison. The Eighth Circuit held that the district court did not act unreasonably in imposing a sentence that was 36% below the advisory guideline range. The court did not erroneously fail to consider and consult the guidelines range. The court initially stated that it intended to impose a 188-month sentence. However, after defendant and his father testified on defendant’s behalf, the court announced that it was imposing a 120-month sentence based on defendant’s efforts in the last two years to turn his life around. The 10-year sentence was reasonable, and properly reflected “the nature and circumstances of the offense and the history and characteristics of the defendant.” U.S. v. Kicklighter, 413 F.3d 915 (8th Cir. 2005).
8th Circuit affirms dangerous weapon increase for small knife carried by defendant during drug purchase. (240) The district court found that the knife that defendant possessed during the drug offense was a dangerous weapon, and applied a § 2D1.1 enhancement. Defendant argued that the increase was improper because the knife was small, dull, and incapable of inflicting serious injury. However, a knife is a dangerous weapon when used in connection with criminal conduct. Defendant placed the knife where he could easily reach it and where it was visible to the confidential informant. He carried it both when he met the informant to arrange the drug purchase, and again when the buy occurred. Although defendant’s knife was only one-and-a-half to two inches long, the district court did not commit error when it concluded that the knife was dangerous and was likely “connected with the offense.” See Note 3 to § 2D1.1. U.S. v. Mathijssen, 406 F.3d 496 (8th Cir. 2005).
8th Circuit holds that drug quantity finding violated Sixth Amendment and remands under Booker. (240) Defendant argued that his sentence violated the Sixth Amendment because it was based on judge-found facts regarding drug quantity and obstruction of justice. Where a defendant objects to a district court’s determination of drug quantity at sentencing, the defendant preserves a Booker-based challenge to his sentence and is entitled to a new sentencing proceeding. Accordingly, the Eighth Circuit remanded for resentencing in accordance with Booker. U.S. v. Sdoulam, 398 F.3d 981 (8th Cir. 2005).
8th Circuit approves application of § 2D1.11 to § 841(c)(2) offense. (240) Defendant was convicted under 21 U.S.C. § 841(c)(2) and was sentenced pursuant to U.S.S.G. § 2D1.11. Defendant argued that the level 30 cap listed in U.S.S.G. § 2D1.1 should apply, as that guideline is “inextricably linked” with § 2D1.11. The Eighth Circuit disagreed. The applicable guideline for a violation of § 841(c)(2) is § 2D1.11. Section 2D1.1 does not apply. U.S. v. Frazier, 394 F.3d 612 (8th Cir. 2005), superseded, U.S. v. Frazier, 408 F.3d 1102 (8th Cir. 2005).
8th Circuit holds that use of schoolyard guideline did not exceed scope of remand. (240) Defendant pled guilty to possession with intent to distribute methamphetamine within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), 860(a). In an unpublished opinion, the conviction was upheld but the sentence vacated because of an error in calculating the amount of meth attributable to him. At resentencing, the district court sentenced defendant under U.S.S.G. § 2D1.2(a)(1), which applies to drug offenses occurring near protected locations and adds two levels to the offense level calculated under § 2D1.1. Defendant argued that because the appellate court did not “explicitly instruct” the district court to hold further proceedings “on any issues other than correct drug quantity and applicable mandatory minimum sentences,” the law of the case doctrine prevented the court from “reopening the issue of enhancement for location.” The Eighth Circuit held that the district court did not exceed the scope of the remand. In the prior opinion, the court did not decide any issues relating to the application of U.S.S.G. § 2D1.2, and it did not establish any restrictions preventing the district court from considering this guideline. To the contrary, it instructed the district court to “recalculate the correct sentencing range under the Guidelines.” U.S. v. Curtis, 336 F.3d 666 (8th Cir. 2003).
8th Circuit upholds use of homicide cross-reference where victim was killed in meth lab fire. (240) During defendant’s drug activity, a wooden building containing defendant’s methamphetamine lab exploded and burned, killing one person. Section § 2D1.1(d)(1) of the drug guideline directs the application of § 2A1.1 (First Degree Murder) if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 …” Section 1111 defines murder as “the unlawful killing of a human being with malice aforethought.” Defendant challenged the district court’s use of the murder cross-reference, arguing that the circumstances surrounding the victim’s death did not support a finding of malice. The Eighth Circuit disagreed, upholding the use of the cross-reference. Defendant had been manufacturing methamphetamine and soliciting others to join him in doing so for a year. The process of manufacturing meth involves flammable material and chemical reactions, and the potential hazards of manufacturing meth are well documented. Thus, it was entirely reasonable to infer that, given defendant’s familiarity with the process of manufacturing meth, he was “aware of a serious risk of death or serious bodily harm” associated with the operation of a meth lab. Defendant’s conduct was “reckless and wanton, and a gross deviation from a reasonable standard.” U.S. v. Graham, 323 F.3d 603 (8th Cir. 2003).
8th Circuit approves increase for committing drug offense within 1000 feet of protected location. (240) Defendant was charged with conspiring to distribute methamphetamine within 1000 feet of a protected location. She pled guilty under 21 U.S.C. § 846, the conspiracy offense, but reserved the issue of whether she had violated 21 U.S.C. § 860, the protected location offense. At a combined bench trial and sentencing hearing, the district court found that the government had proven beyond a reasonable doubt that the conspiracy took place within 1000 feet of a school, and therefore, the school zone enhancement under 21 U.S.C. § 860 applied. The court also included a sentencing enhancement under USSG § 2D1.2(a)(2), the enhancement for drug violations occurring near protection locations. The Eighth Circuit affirmed. Although defendant was convicted under § 846 rather than § 860, the plain language of § 846 provides that a defendant also may be sentenced in accordance with § 860. It was not clearly erroneous for the court to find that the government proved the elements of § 860 beyond a reasonable doubt. The evidence was uncontroverted that defendant’s apartment was located within 1000 feet of two protected locations, and that the conspirators regularly distributed meth from within the apartment. Defendant personally packaged and distributed drugs from the apartment and ran the conspiracy from the apartment while her husband was incarcerated. U.S. v. Euans, 285 F.3d 656 (8th Cir. 2002).
8th Circuit upholds increase for use of chartered plane to transport drugs. (240) Defendant and Ellis were stopped by Customs agents shortly after they arrived in a chartered airplane at a Louisiana airport. Ellis was a drug trafficker who routinely transported marijuana from Texas to Arkansas and Tennessee. Agents discovered 14 pounds of marijuana in his luggage. Defendant argued that his sentence should not have been enhanced under § 2D1.1(b)(2) for using a chartered airplane to transport the marijuana because he had no role in arranging the transportation and did not personally transport the drugs. The Eighth Circuit affirmed the enhancement. The jury found beyond a reasonable doubt that defendant conspired with and aided and abetted Ellis in transporting the marijuana. There was evidence that defendant knew when he boarded the plane that it was being used to transport marijuana. U.S. v. Ray, 250 F.3d 596 (8th Cir. 2001).
8th Circuit upholds crack finding even though substance later liquefied. (240) Defendant argued that the district court erred in finding that the package seized by police from his car contained crack because the substance had liquefied by the time of trial. He contended that since there was no evidence why it had liquefied, the district court should have sentenced him for possession of powder cocaine rather than crack. The Eighth Circuit ruled that the jury’s finding of crack cocaine was amply supported by the evidence. A photo of the substance taken on the day of defendant’s arrest showed a solid rocklike substance. The police officers who saw the drugs on the day of arrest and the government chemist who tested the substance all testified that the substance was crack. Finally, defendant himself called the substance “crack” several times during an interview with police. U.S. v. Hawthorne, 235 F.3d 400(8th Cir. 2000).
8th Circuit says reference to drug quantity table did not allow court to apply other increases from § 2D1.1. (240) Defendant was convicted of manufacturing methamphetamine and endangering human life while doing so. The district court correctly calculated the base offense level for the endangering life count under § 2D1.10(a)(1) by adding three to the offense level established by the drug quantity table in § 2D1.1. However, the Eighth Circuit ruled that the court improperly applied the environmental harm increase in § 2D1.1(b)(5) because § 2D1.10(a)(1) directs only that the drug quantity table be used, and does not refer to the rest of § 2D1.1. An instruction to use a particular table from another offense guideline refers only to the table, not the entire offense guideline. See USSG § 1B1.5(b)(2). Although defendant failed to raise this argument below, the error was plain and affected defendant’s substantial rights. The error was clear under current law (i.e. the guidelines themselves) and there is no case law interpreting § 1B1.5(b)(2) differently. The error affected defendant’s substantial rights, since when the enhancement was removed, the offense level was reduced from 37 to 35, and the resulting guideline range was reduced from 210-262 to 168-210 months. Defendant’s 240-month sentence thus exceeded the guideline range by 30 months. U.S. v. Kroeger, 229 F.3d 700 (8th Cir. 2000).
8th Circuit rules drug type finding was factual finding reviewable only for clear error. (240) Defendant and the government agreed that defendant was responsible for 13 pounds of a controlled substance. Defendant insisted that the substance was amphetamine; the district court found it was methamphetamine. The Eighth Circuit ruled that this was a factual finding reviewable only for clear error, rather than an application of the guidelines to the facts to be reviewed de novo. The district court did not inquire into what substance defendant intended to distribute, but what the evidence showed about the actual composition of the controlled substance involved. Because the vast majority of the 13 pounds was not available for testing, the district court analyzed the testimony of members of the conspiracy regarding their understanding of the identity of the drug, as well as evidence from controlled buys from defendant’s customers and suppliers. The court also observed that all of the members of the conspiracy had pled guilty to meth, not amphetamine. Finally, the court did not find credible defendant’s claim that he distributed only amphetamine. Thus, it was clear that the district court’s decision as to the identity of the drugs was a factual finding. U.S. v. Hyatt, 207 F.3d 1036 (8th Cir. 2000).
8th Circuit holds that counsel reasonably relied on defendant’s admission to possessing crack. (240) In a § 2255 petition, defendant argued that his counsel was ineffective in failing to require the government to prove that his offense involved crack cocaine. The Eighth Circuit ruled that it was not unreasonable for counsel to accept defendant’s admissions that the substance was crack. Defendant repeatedly admitted in both his plea agreement and during the colloquy before the court that he was in possession of crack cocaine at the time of his arrest and on a separate relevant conduct occasion. Defendant also acknowledged during the colloquy that the government had performed lab tests on the seized substances, and that they were found to be crack. Finally, defendant told the officer who prepared the PSR that the substances at issue were crack. It was not unreasonable for counsel to rely on these admissions. Cases cited by defendant involved admissions to possessing “cocaine base,” whereas defendant specifically admitted possessing crack cocaine. Burkhalter v. U.S., 203 F.3d 1096 (8th Cir. 2000).
8th Circuit holds that minimal testing plus co-conspirator testimony established d-meth. (240) Defendant argued that the district court erred when it determined that he sold d-methamphetamine rather than l-methamphetamine. The Eighth Circuit disagreed. At trial, several witnesses who worked with defendant for years testified that defendant supplied them with “top of the line dope.” A higher quality is consistent with d-meth. In addition, government agents tested a small portion of the meth recovered during the investigation of the conspiracy and found that it was d-meth. Although this minimal testing by itself would be insufficient to establish that defendant primarily distributed d-meth, the testing evidence combined with the testimony of witnesses who actively participated in the drug conspiracy amply supported such a conclusion. U.S. v. Fairchild, 189 F.3d 769 (8th Cir. 1999).
8th Circuit upholds finding that substance was crack rather than powder cocaine. (240) Defendant was convicted of cocaine base charges and sentenced as a career offender. Under § 4B1.1, a district court must consider the “Offense Statutory Maximum” of the offense of conviction to determine the base offense level. Because defendant had a previous drug conviction and the current offense involved more than five grams of cocaine base, the maximum statutory term to which defendant was exposed was life imprisonment. Defendant argued that the district court incorrectly determined that the controlled substance was “crack” cocaine, and thus he was subject to a statutory maximum of 30 years. The Eighth Circuit ruled that the district court did not clearly err in finding that the substance in question was crack. A police officer testified at trial that the substance at issue was “rock-like” and a DEA agent testified at trial that defendant told him that he sold crack cocaine to the police officer. U.S. v. Deering, 179 F.3d 592 (8th Cir. 1999).
8th Circuit permits inference that all of the methamphetamine was the same as the samples tested. (240) Defendants argued that the government made an insufficient showing of the type of methamphetamine to be attributed to them for sentencing purposes. At trial, a forensic chemist testified that he tested 11 samples of meth that police found on defendants’ premises. All of those samples were d-meth. Nothing in the record suggested that any l-meth was involved in the case, or that any of the meth caused effects other than the stimulating ones characteristic of d-meth. The Eighth Circuit held that under these circumstances, the sentencing court was permitted to infer that all of the meth was of the same type as the samples tested. U.S. v. Hall, 171 F.3d 1133 (8th Cir. 1999).
8th Circuit says distinction between types of meth irrelevant for mandatory minimum purposes. (240) Defendant pled guilty to conspiring to distribute methamphetamine. In a § 2255 petition, he argued that his counsel had been ineffective in failing to challenge the isometric structure of the meth involved in his case. The Eighth Circuit rejected the ineffective assistance claim, since defendant did not provide any evidence that the drugs involved were l-meth rather than d-meth. In order to show ineffective assistance, defendant was required to show both defective performance and prejudice. Defendant merely speculated about the true isomeric structure of the drugs. Without some evidence that the drugs involved were l-meth, defendant could not characterize the failure to object to the composition of the drugs as either ineffectual or prejudicial. Moreover, any distinction between l-meth and d-meth was irrelevant under a statute imposing a mandatory minimum 20-year sentence. U.S. v. Craycraft, 167 F.3d 451 (8th Cir. 1999).
8th Circuit upholds finding that seized drugs were crack. (240) A police officer received information that defendant was trafficking in crack cocaine. A search of defendant’s residence uncovered a large amount of crack. At sentencing, the government introduced a police lab report describing the seized drugs as cream-colored chunks. In addition, the police officer testified that the seized drugs were hard and gravel-like and, based on his experience, looked like crack cocaine. The officer also testified that defendant referred to the drugs as crack cocaine. The Eighth Circuit upheld the district court’s finding that the cocaine base seized from defendant was crack cocaine. Note D to the Drug Quantity Table says that “‘cocaine base’” for the purposes of this guideline, means ‘crack.’ ‘Crack’ is the street name for a form of cocaine base, usually … appearing in a lumpy, rocklike form.” Although the guidelines treat “forms of cocaine base other than crack (e.g. coca paste…)” as cocaine, there was no evidence that defendant was distributing coca paste or another exotic form of cocaine base. The only evidence introduced supported finding that the seized drugs were crack cocaine. U.S. v. Goodson, 165 F.3d 610 (8th Cir. 1999).
8th Circuit holds that co-defendant’s “real-life experiences” enabled her to identify crack. (240) Lowe sold defendant crack cocaine in November and December of 1995. Lowe cooked the crack herself for the November transaction, but testified that she purchased the December substance from a known supplier who made crack cocaine with “ammonia and baking soda.” She also testified that the substance, which was in a clear plastic bag, was a “more solid piece of rock… The same substance, creamy, milky white.” Lowe had previous experience selling crack to others. Because of her familiarity, Lowe testified that she had “no doubt” that the rock-like substance she sold to defendant in December was crack cocaine. The Eighth Circuit held that the district court justifiably relied on Lowe’s well-grounded opinion that the substance she sold was crack. Lowe’s real-life experiences enabled her to recognize crack cocaine when she saw it. Additionally, defendant’s failure to complain about the quality of the substance he received was “strong confirmation that [Lowe] was selling genuine crack.” Judge Heaney dissented, believing the witness had insufficient experience to rely on her identification of the December substance as crack. U.S. v. Marsalla, 164 F.3d 1178 (8th Cir. 1999).
8th Circuit relies on “verdict of the marketplace” as evidence that defendant sold crack. (240) Defendant contended the government failed to prove that he was distributing “crack” cocaine rather than some other form of cocaine base. During defendant’s trial, a government chemist testified that the substance was “cocaine base,” but did not expressly state that it was crack. The Eighth Circuit held that the evidence sufficiently established that the substance was crack, even under the more stringent clear and convincing evidence standard. While cocaine base can theoretically include substances other than crack, there was no evidence that defendant was distributing coca paste or other exotic forms of cocaine base. In addition, crack cocaine usually has a distinctive appearance and form that makes it easy to recognize. A number of users and distributors testified at trial that the substance they obtained from defendant was crack, and they made no complaints about the quality of the merchandise they received. The “verdict of the marketplace” was strong evidence that the substance defendant was selling was crack. U.S. v. Brown, 156 F.3d 813 (8th Cir. 1998).
8th Circuit says typographical error in meth statute did not require lesser mandatory minimum sentence. (240) 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 upholds judge’s crack finding where jury returned general verdict. (240) Defendant was the member of a violent street gang that distributed crack cocaine. He argued that because the jury was not asked to make a specific finding regarding the nature of the drugs involved in the conspiracy, the court should have assumed at sentencing that only powder cocaine was involved. The Eighth Circuit held that under Edwards v. U.S., 118 S.Ct. 1475 (1998), the judge properly determined the type of drug. In Edwards, the Supreme Court rejected a similar argument, noting that the Sentencing Guidelines instruct the judge, not the jury, to determine both the amount and the kind of controlled substances for which a defendant should be held accountable. Regardless of the jury’s actual or assumed beliefs about the conspiracy, the guidelines require the judge to decide how much of the controlled substances consisted of crack, cocaine, or both. U.S. v. Brown, 148 F.3d 1003 (8th Cir. 1998).
8th Circuit rejects need for lab test to prove cocaine base is crack cocaine. (240) Defendant was convicted of a cocaine base conspiracy. He argued that there was insufficient evidence that the substance was crack cocaine rather than some other type of cocaine base. The Eighth Circuit rejected defendant’s suggestion that a lab test or the testimony of a chemistry expert is required before a court may find by a preponderance of the evidence that cocaine base is crack cocaine. The identity of a controlled substance can be proven by circumstantial evidence and opinion testimony. Here, a police detective testified at sentencing that it was his opinion, based on his significant narcotics experience consisting of hundreds of encounters with crack cocaine, that the “tan rock-like substance” in defendant’s purse was crack. This evidence was more than sufficient for the court to find that the cocaine base was crack cocaine. U.S. v. Covington, 133 F.3d 639 (8th Cir. 1998).
8th Circuit rejects departure for disparity, cost of imprisonment, harsh crack penalties, and lack of gun. (240) Defendants pled guilty to a crack cocaine conspiracy. The Eighth Circuit rejected a downward departure based on lower sentences that other conspirators in the scheme had received from other judges, the costs of imprisoning the defendants, the harsher penalties for crack cocaine offenses, and the fact that there were no weapons or violence involved in the offense. Previous cases have held that disparity between sentences imposed on co-defendants and the harsher penalties for crack cocaine are not a proper bases for departure. The decision whether tax dollars should be used for lengthy sentences is for Congress, not the federal courts. Defendants’ sentences already accounted for their lack of weapons–none received a § 2D1.1(b)(1) enhancement and two received a reduction under § 5C1.2. U.S. v. Wong, 127 F.3d 725 (8th Cir. 1997).
8th Circuit does not require evidence of sodium bicarbonate to sentence for crack. (240) Defendant was convicted of distributing cocaine base. He challenged the court’s use of the harsher penalties for crack cocaine, contending there was insufficient evidence that he sold crack. The Eighth Circuit upheld the court’s finding that defendant crack cocaine. The sentencing judge also presided at defendant’s trial. A witness testified at trial that he bought crack cocaine from defendant on three occasions. The government had the cocaine the informant bought from defendant analyzed by a chemist. The chemist’s report stated that the cocaine base was “rock-like.” There is no need to prove that the cocaine base contains cocaine hydrochloride and sodium bicarbonate. Note D to § 2D1.1(c) states only that crack cocaine is “usually” prepared by processing cocaine hydrochloride and sodium bicarbonate. The language does not require evidence of these ingredients before the court can conclude that a substance is crack cocaine. U.S. v. Stewart, 122 F.3d 625 (8th Cir. 1997).
8th Circuit holds use of D-meth guideline is not clear error. (240) Defendants argued for the first time on appeal that the court erred in basing their sentence on the guidelines for D-methamphetamine rather than L-methamphetamine. The Eighth Circuit held that the use of the D-methamphetamine guideline was not clear error. Although there were no explicit references at sentencing regarding the type of methamphetamine, the PSR referenced two tests performed on the seized methamphetamine that revealed the substance was D-methamphetamine. Defendants did not object to their PSRs. Therefore, the district court did not commit clear error by sentencing defendants for D-methamphetamine. U.S. v. Fairchild, 122 F.3d 605 (8th Cir. 1997).
8th Circuit refuses to overturn circuit precedent upholding 100-to-1 crack cocaine sentencing ratio. (240) Defendant contended that the court committed error when it refused to depart downward in order to mitigate the harsh 100-to-1 ratio between sentences for crack and powder cocaine. Defendant recognized that circuit case law holds to the contrary and suggested that it was the court’s “duty to declare that the punishment for crack versus powder cocaine is repugnant and unjust.” The Eighth Circuit held that the district court did not err in denying defendant’s request for a downward departure. A single panel cannot reverse a well-established pattern of the circuit’s case law; such action can only originate from the court en banc. U.S. v. Bass, 121 F.3d 1218 (8th Cir. 1997).
8th Circuit upholds sentence based on crack rather than powder cocaine. (240) Defendant argued that the district court erred in calculating his sentence based on crack rather than another form of cocaine base that would not merit crack’s enhanced penalties. The Eighth Circuit held that the lab report and defendant’s admissions during the plea colloquy and in the stipulation of facts adequately proved the substance involved in the offense was crack cocaine. The lab report described the drugs purchased from defendant as “crack cocaine” and a “rock-like substance.” Defendant also agreed during the plea hearing that the government could prove that he distributed “cocaine and cocaine base, otherwise known as crack cocaine.” U.S. v. Jones, 111 F.3d 597 (8th Cir. 1997).
8th Circuit rejects proposed crack amendment as grounds for departure. (240) Defendant pled guilty to distributing crack. He challenged the district court’s failure to depart based on the Sentencing Commission’s February, 1995, conclusion that the 100-1 ratio between penalties for crack and powder cocaine was not justified. He also suggested that a proposed amendment to the guidelines eliminating the 100-1 ratio justified a departure. The Eighth Circuit held that the proposed amendment was not a basis for departure, noting that Congress recently rejected it. U.S. v. Higgs, 72 F.3d 69 (8th Cir. 1995).
8th Circuit says adoption of PSR satisfied need for D-methamphetamine finding. (240) Defendant argued that the district court erred in assuming that he was responsible for D-methamphetamine rather than L-methamphetamine. The Eighth Circuit held that by adopting the PSR the district court impliedly found that defendant was responsible for D-methamphetamine. Moreover, defendant raised this argument for the first time in his reply brief. U.S. v. Griggs, 71 F.3d 276 (8th Cir. 1995).
8th Circuit holds defendant accountable for cocaine base where powder was to be converted to crack. (240) Defendant argued that the district court erred in treating the powder cocaine he was convicted of distributing as cocaine base for sentencing purposes. The 8th Circuit upheld the use of the harsher cocaine base penalties, since it was clear that the powder was intended for conversion to “crack.” There was ample evidence that the conspirators, including defendant, distributed cocaine base rather than powder cocaine. Under U.S. v. Maxwell, 25 F.3d 1389 (8th Cir. 1994), a district court may calculate the quantity of drugs as cocaine base rather than cocaine powder where cocaine base is the form in which the cocaine is finally distributed to persons outside the conspiracy. U.S. v. McMurray, 34 F.3d 1405 (8th Cir. 1994).
8th Circuit says conspirators are accountable for cocaine base they knew would be made from powder. (240) Defendants argued that they should not be held accountable for cocaine base, since the cocaine involved in their conspiracy was often in powder form. The 8th Circuit rejected the argument, because the cocaine powder in the conspiracy was distributed to other conspiracy members, who converted it to cocaine base before distributing it. Defendants were aware that their co-conspirators converted the powder to cocaine base before distributing it. U.S. v. Maxwell, 25 F.3d 1389 (8th Cir. 1994).
8th Circuit refuses to reconsider whether § 851 notice is required to enhance sentence within statutory maximum. (240) Defendant argued that he deserved a new trial because the government failed to file a pretrial information under 21 U.S.C. § 851(a)(1) disclosing what prior convictions it would rely on in seeking increased punishment. The 8th Circuit, relying on U.S. v. Wallace, 895 F.2d 487 (8th Cir. 1990), rejected this claim. The notice requirement of § 851(a)(1) is limited to situations in which a defendant’s statutory minimum or maximum penalty is enhanced, and does not apply where the defendant is assigned an increased sentence within the statutory range. The absence of § 851(a)(1) notice did not affect the fairness of defendant’s sentence. His presentence report adequately described the previous conviction. U.S. v. McMurray, 20 F.3d 831 (8th Cir. 1994).
8th Circuit upholds finding that methamphetamine was dextromethamphet-amine. (240) The 8th Circuit found that the government met its burden of proving that the methamphetamine attributed to defendant was dextro-methamphetamine (“d-meth”) rather than levo-methamphetamine (“L-meth”). The government produced three witnesses who testified that all eight samples they tested were d-meth. In addition, the experts testified that L-meth was never found in samples seized in either California (the source of the methamphetamine) or Iowa (the place the drugs were seized). U.S. v. Jennings, 12 F.3d 836 (8th Cir. 1994).
8th Circuit says government proved substance was cocaine base. (240) The 8th Circuit found that the government established by a preponderance of the evidence that the substance mailed to defendants was cocaine base rather than cocaine powder. A forensic chemist for the U.S. Postal Service testified that her analysis indicated that the 211 grams in the 17 bags removed from the package was 69 percent cocaine base and that the remaining 12 grams left in the package was 67 percent cocaine base. The chemist was also present when the substance was reanalyzed at an independent laboratory. She testified that the chemists at this lab also found that the substance tested positive for cocaine base. Defendants offered no evidence to dispute this testimony. U.S. v. Johnson, 12 F.3d 760 (8th Cir. 1993).
8th Circuit upholds section 841(b) enhancements for defendants convicted of conspiracy. (240) The 8th Circuit rejected defendant’s claim that the enhancement for prior drug convictions in 21 U.S.C. § 841(b) does not apply to the drug conspiracy statute, 21 U.S.C. § 846. The drug conspiracy statute has been amended since Bifulco v. U.S., 447 U.S. 381 (1980) to expressly provide that convicted drug conspirators are subject to the same penalties as those prescribed for the underlying substantive offense. Thus, the enhancement provision of section 841(b) applies whether the conviction is for the substantive offense or for conspiring to violate the substantive offense. U.S. v. Wessels, 12 F.3d 746 (8th Cir. 1993).
8th Circuit reverses judicial notice that drug was D-methamphetamine. (240) The government failed to present evidence to show whether the substance was L-methamphetamine or D-methamphetamine. The district court acknowledged this, but noted that it had been involved in some 50 methamphetamine cases in the State of Iowa, none of which involved L-methamphetamine. The court then took judicial notice that the methamphetamine involved was D-methamphetamine. The 8th Circuit held that this was error. The government had the burden of producing evidence on this issue. The case was remanded for the district court to receive evidence as to what type of methamphetamine was involved. U.S. v. Wessels, 12 F.3d 746 (8th Cir. 1993).
8th Circuit rules that conspirator can receive enhancement for selling near school. (240) Defendant argued that he should not have received the two-point enhancement under 2D1.2 for selling drugs near a school because he was convicted of conspiracy rather than the substantive offense of selling near a school. The 8th Circuit disagreed, relying on 2D1.4’s direction that a defendant convicted of a drug conspiracy be sentenced as if he had committed the object of the conspiracy. Since one object of defendant’s conspiracy was to sell drugs within 1,000 feet of a school, 2D1.2 was properly applied. U.S. v. Oppedahl, 998 F.2d 584 (8th Cir. 1993).
8th Circuit rules that possible error in drug quantity determination was harmless. (240) Defendant argued that his base offense level (BOL) was incorrectly based on 2,313.5 grams of cocaine instead of the 2,085.9 grams to which the parties stipulated. He asserted that this would have lowered his BOL from 32 to 30. The 8th Circuit found that even if there was error, it was harmless. First, the trial judge in fact used a BOL of 30, because after adjusting the BOL upward by five levels, he arrived at an adjusted offense level of 35. Second, it was plain the judge would have sentenced defendant to the same sentence even if the lower guideline range were used. U.S. v. Buchanan, 985 F.2d 1372 (8th Cir. 1993).
8th Circuit affirms that seized substance was crack cocaine. (240) The 8th Circuit affirmed that there was sufficient evidence supporting the district court’s conclusion that the substance seized from defendant’s automobile was crack cocaine or cocaine base. The government’s expert witness testified that his initial impression was that the substance was probably “rock cocaine” or crack cocaine and that his initial impression was confirmed by the chemical tests he performed. Moreover, the identity of a controlled substance can also be proved by circumstantial evidence and opinion testimony. Here, an experienced narcotics detective testified that in his opinion the government’s exhibits were crack cocaine. U.S. v. Williams, 982 F.2d 1209 (8th Cir. 1992).
8th Circuit rules court used wrong standard in finding that defendant carried crack cocaine. (240) At sentencing, the district court determined that defendant possessed crack cocaine, rather than powder cocaine. The 8th Circuit remanded for reconsideration of this issue because the district court applied a standard of proof less than a preponderance, and the evidence supporting the harsher crack sentence was “equivocal.” The preponderance of the evidence standard applies to sentencing decisions. Under this standard, it was unclear whether the type of cocaine which defendant possessed was more likely than not crack and not cocaine powder. The government’s forensic chemist stated alternatively that the substance was “most likely cocaine,” “cocaine base with some procaine base,” and “procaine or cocaine base with some procaine base mixed in.” U.S. v. Monroe, 978 F.2d 433 (8th Cir. 1992).
8th Circuit rules selling assets, moving to another state, and burying drug lab equipment did not constitute withdrawal from conspiracy. (240) The 8th Circuit rejected defendant’s claim that he withdrew from a drug conspiracy prior to the effective date of the guidelines. A defendant must do more than show no conspiracy activity on his part after the cut-off date. He has the burden of showing that he affirmatively disavowed the conspiracy, either by making a clean breast to the authorities or by communicating his withdrawal to his co-conspirators. Here, defendant sold his farm equipment and livestock and moved to another state in September 1987 because the local authorities were on his trail and he was concerned the federal government would seize his assets. He buried the drug lab equipment on the property, and later dug up the equipment and burned it. These were not acts of affirmative withdrawal, but were designed to thwart the authorities and probably made it more likely the conspiracy would continue. Moreover, after moving, defendant drove his brother to a meeting with another conspirator in which the conspirator threatened to kill the brother if he cooperated with the police. U.S. v. Askew, 958 F.2d 806 (8th Cir. 1992).
8th Circuit rejects constitutional challenge to drug equivalency table. (240) Defendant claimed that the drug equivalency table had no rational basis and that use of the table resulted in disparate treatment of black and white defendants. The 8th Circuit summarily rejected these claims, since neither was raised in the district court. Moreover, the court recently rejected these arguments in U.S. v. House, 939 F.2d 659 (8th Cir. 1991), and U.S. v. Johnson, 944 F.2d 396 (8th Cir. 1991). U.S. v. McDile, 946 F.2d 1330 (8th Cir. 1991).
8th Circuit rejects piecemeal application of prior version of guidelines. (240) Defendant was convicted of selling methamphetamine near a school. Prior to November 1, 1989, § 2D1.3(a) (2)(B) required doubling the base offense level in such a case. At that time, methamphetamine was not listed separately in § 2D1.1, so the offense level had to be generated from the drug-equivalency table. After defendant’s crime, the sentencing commission changed both provisions, with the net effect of increasing the base offense level. Because the net sentencing range under the guidelines in effect when defendant committed the crime was less than under the amended guidelines, the district court used the prior version of the guidelines. On appeal, defendant sought to maintain the prior favorable drug-equivalency provision, while obtaining the benefit of the favorable change in § 2D1.3(a)(2)(B), i.e., no doubling in offense level. The 8th Circuit rejected this piecemeal application of the guidelines. The two provisions “move in concert,” and the old version of § 2D1.3(a)(2)(B) must be applied with the old version of § 2D1.1. U.S. v. Lenfesty, 923 F.2d 1293 (8th Cir. 1991), overruling on other grounds recognized by U.S. v. Search, 233 F.3d 1096 (8th Cir. 2000).
8th Circuit reverses separate convictions for distributing cocaine and possessing the same cocaine with intent to distribute. (240) Defendant was convicted of possessing cocaine with intent to distribute, and distribution of cocaine. The 8th Circuit held that the separate convictions based upon one single act were impermissible, and remanded the case to the district court with instructions to vacate one of the convictions. The court found that the defendant’s offenses were separate stages of a single drug transaction, namely the distribution of a kilogram of cocaine to an undercover agent. There was no evidence that the defendant possessed additional cocaine that he did not actually distribute, or that he had kept the cocaine in stock prior the distribution. The fact that he had been in possession of the cocaine for three or four hours more than was necessary to physically deliver it to the agent did not establish that he was engaged in possession of cocaine. U.S. v. Mendoza, 902 F.2d 693 (8th Cir. 1990).
8th Circuit rules consideration of drugs possessed prior to November 1987 does not violate ex post facto clause. (240) The 8th Circuit held that because drug sales prior to the effective date of the guidelines were part of a continuing course of conduct, the district court did not violate the ex post facto clause when it aggregated those uncharged quantities in determining the defendant’s offense level. No ex post facto violation occurs when the defendant is sentenced for a crime which occurred after November 1, 1987, as was the case here. U.S. v. Allen, 886 F.2d 143 (8th Cir. 1989).
9th Circuit interprets statute requiring consecutive sentence for possessing drugs in prison. (240) Under 18 U.S.C. § 1791, it is a federal crime to possess or provide contraband in a federal prison. Section 1791(c) states that any sentence imposed under § 1791 for a violation involving a controlled substance must be consecutive to any other sentence imposed for an offense involving such a controlled substance. Defendant possessed marijuana in prison and provided the same marijuana to another inmate; defendant also was convicted of possessing marijuana on a separate occasion. Defendant pleaded guilty to three counts of violating § 1791, and the district court imposed consecutive sentences on all three counts. The Ninth Circuit held that the statute required consecutive sentences as to the two counts arising from the same drugs, but that the sentence resting on defendant’s separate possession of marijuana need not be consecutive. U.S. v. Joseph, 716 F.3d 1273 (9th Cir. 2013).
9th Circuit finds no ex post facto violation in relying on guideline to deny sentence reduction. (240) Defendant sought a reduction in sentence under 18 U.S.C. § 3582(c)(2) on the ground that the Sentencing Commission had lowered the guidelines applicable to defendant’s drug-trafficking offense. Defendant had been convicted of a conspiracy involving more than 2,900 kilograms of cocaine. Relying on Application Note 17 to § 2D1.1, the district court denied the motion on the ground that the large quantity of cocaine involved in defendant’s offense justified the sentence. On appeal, defendant claimed that the district court violated the ex post facto clause because Application Note 17 was promulgated after defendant was sentenced. The Ninth Circuit rejected this contention because the use of the application note merely caused defendant to retain the same sentence he had originally received. U.S. v. Trujillo, 713 F.3d 1003 (9th Cir. 2013).
9th Circuit finds defendant conceded that his prior conviction was a felony drug offense. (240) Defendant, convicted of drug-trafficking offenses, argued that the district court erred in enhancing his sentence under 21 U.S.C. § 841(b), because his prior conviction was not a “felony drug offense.” Prior to sentencing, however, defendant filed a motion conceding that his prior conviction was a drug offense and that he received a three-and-a-half year sentence. At sentencing, defendant’s counsel admitted that defendant’s prior offense had been a felony. The Ninth Circuit held that the district court had not erred in imposing the enhancement. U.S. v. Brooks, 508 F.3d 1205 (9th Cir. 2007).
9th Circuit holds that court did not improperly try to eliminate disparity with co-defendants. (240) Defendant pleaded guilty to trafficking in MDMA or “ecstasy.” His range under the advisory Sentencing Guidelines was 63 to 78 months, and the district court sentenced him to 63 months. At sentencing, the district court weighed the factors set forth in 18 U.S.C. § 3553(a), but also noted that it wished to avoid disparity in the sentences imposed on defendant and his co-defendants. On appeal, defendant claimed that his sentence was unreasonable because the court misapplied § 3553(a)(6), which allows a sentencing court to consider “the need to avoid sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The Ninth Circuit agreed with defendant that § 3553(a)(6) is intended primarily to promote national uniformity in sentencing, rather than uniformity among co-defendants, but held that the district court properly weighed the sentencing factors and imposed a reasonable sentence. U.S. v. Saeteurn, 504 F.3d 1175 (9th Cir. 2007).
9th Circuit says drug guideline safety-valve applies even if there is no mandatory minimum. (240) Under § 2D1.1(b)(7), a defendant may receive a two-level reduction in offense level if he meets the criteria set forth in the guideline safety-valve provision, § 5C1.2. The Ninth Circuit held that a defendant may receive a reduction under § 2D1.1(b)(7) even if he is not subject to a mandatory minimum sentence. U.S. v. Feingold, 454 F.3d 1001 (9th Cir. 2006).
9th Circuit says sentence for drug sale causing death does not require proof that death was foreseeable. (240) Under 21 U.S.C. § 841(a)(1) and (b)(1)C), a defendant convicted of a drug trafficking offense is subject to a longer maximum sentence “if death or serious bodily injury results from the use” of the drugs that defendant sells. Defendant sold methadone to a person who died of an overdose of that drug. At trial, the court instructed the jury that it had to find that defendant’s sale of the drugs to the victim was the proximate cause of the victim’s death. The Ninth Circuit held that the district court erred in instructing the jury and that the government need not prove that the death of the drug user was a reasonably foreseeable result of the drug sale. Instead, it is sufficient that the death results from the drug’s sale. U.S. v. Houston, 406 F.3d 1121 (9th Cir 2005).
9th Circuit holds that graduated penalty provisions of drug statute do not define lesser-included offenses. (240) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), the government must allege in the indictment and prove to the jury the drug types and quantities that trigger increased maximum sentences under the controlled substance statute, 21 U.S.C. § 841(b). The Ninth Circuit held, however, that the drug types and quantities that increase the maximum sentence are not traditional elements of the offense defined by § 841 and therefore do not define lesser-included offenses. U.S. v. Toliver, 351 F.3d 423 (9th Cir. 2003).
9th Circuit holds that mitigating role “cap” is not retroactive. (240) Amendment 640 to the Guidelines, effective November 1, 2002, set an offense level cap of 30 for individuals receiving a mitigating role adjustment. Defendant, who was sentenced on July 31, 2002, sought to obtain the benefit of that provision. The Ninth Circuit held that Amendment 640 was a substantive, not a clarifying amendment, and that it did not apply retroactively to defendants sentenced before its effective date. U.S. v. Diaz-Cardenas, 351 F.3d 404 (9th Cir. 2003).
9th Circuit finds that use of uncharged cocaine to calculate sentencing range does not violate Apprendi. (240) Defendant was convicted of two counts of possessing five grams of crack cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a) and (b)(1)(B). The maximum sentence for that offense is 40 years. At sentencing, the district court, relying on Apprendi, declined to consider 34 grams of cocaine that defendant admitted to selling even though use of that amount would not increase defendant’s sentence above the statutory maximum. On the government’s appeal, the Ninth Circuit reversed, finding that consideration of the cocaine would not violate Apprendi. U.S. v. Brown, 347 F.3d 1095 (9th Cir. 2003).
9th Circuit upholds enhancement for hazardous waste disposal during drug manufacture. (240) Under § 2D1.1(b)(5)(A), a defendant convicted of a drug offense is subject to a two-level enhancement if the offense involved the unlawful discharge or disposal of a hazardous substance or hazardous waste. The commentary explains that the guideline applies to any discharge “covered by” the Resource Conservation and Recovery Act (RCRA). At defendant’s sentencing for methamphetamine manufacturing, evidence showed that defendant improperly disposed of naptha and acetone, both of which are covered by the RCRA. The Ninth Circuit affirmed defendant’s enhancement under § 2D1.1 (b)(5) (A), holding that the district court did not clearly err in finding that defendant disposed of a hazardous waste. U.S. v. MacDonald, 339 F.3d 1080 (9th Cir. 2003).
9th Circuit requires proof that defendant who maintained property for drug manufacture participated in underlying offense. (240) When a defendant is convicted under 21 U.S.C. § 856 of maintaining a place for the manufacture of illegal drugs, U.S.S.G. § 2D1.8 provides for a reduced offense level if the defendant had no participation in the underlying drug offense. The Ninth Circuit held that because this provision sets a defendant’s offense level, the government bears the burden of establishing that defendant participated in the underlying offense and thus is not entitled to the lower offense level. The court rejected the Tenth Circuit’s contrary conclusion in U.S. v. Dickerson, 195 F.3d 1183 (1999). U.S. v. Leasure, 319 F.3d 1092 (9th Cir. 2003).
9th Circuit says clear and convincing standard does not apply to drug quantity determination. (240) Defendant claimed that the district court should have applied the clear and convincing evidence burden of proof, rather than the preponderance standard, in finding the quantity of *drugs involved in his offense because the court’s quantity finding drastically increased his sentence. The Ninth Circuit rejected this argument, holding that its prior decisions require use of the clear and convincing standard only when the court enhances a sentence based on uncharged conduct, not when the court determines the quantity of drugs involved in the offense. U.S. v. Rosacker, 314 F.3d 422 (9th Cir. 2002).
9th Circuit holds “safety valve” does not apply to conviction for selling drugs near school. (240) Agreeing with the Third and Eleventh Circuits, the Ninth Circuit held that the “safety valve” provision of 18 U.S.C. § 3553(f) does not apply when the defendant is convicted of possessing drugs with intent to distribute within 1000 feet of a school, in violation of 21 U.S.C. § 860. See U.S. v. McQuilkin, 78 F.3d 105, 109 (3rd Cir. 1996); U.S. v. Anderson, 200 F.3d 1344, 1348 (11th Cir. 2000). By its terms, § 3553(f) applies only to convictions under 21 U.S.C. §§ 841, 844, 846, 960 and 963. It does not matter that § 841 is a lesser-included offense of § 860. The panel rejected defendant’s argument that Congress may have believed that § 860 was just a “sentencing enhancement” for a violation of § 841, not a separate offense, noting that the Ninth Circuit and several other circuits have held that Congress intended the two offenses to be separate substantive offenses. See U.S. v. Crawford, 185 F.3d 1024, 1027 n.9 (9th Cir. 1999). The “rule of lenity” has no application here because “it is clear that § 841 and § 860 are separate substantive offenses.” U.S. v. Kakatin, 214 F.3d 1049 (9th Cir. 2000).
9th Circuit says “schoolyard” guideline cannot be selected based on “relevant conduct.” (240) In U.S. v. Crawford, 185 F.3d 1024, 1026-29 (9th Cir. 1999), the Ninth Circuit held that a defendant convicted under 21 U.S.C. § 841(a) could not receive an enhanced sentence under the “schoolyard” guideline, § 2D1.2, because selling drugs within a 1,000 feet of a school is not an element of the § 841(a) offense. However, the defendant in this case was also convicted of conspiracy under 21 U.S.C. § 846. Appendix A of the Guideline Manual says § 2D1.2 is one of several guidelines which may apply to a conspiracy conviction under § 846. However, the indictment here failed to allege that an object of the conspiracy was to distribute drugs near a school. Accordingly, the most applicable offense guideline was § 2D1.1, and defendant’s sentence under § 2D1.2 was reversed. The panel reiterated its statement in U.S. v. Lawton, 193 F.3d 1087, 1094 (9th Cir. 1999) that “relevant conduct may not be used to select a guideline under § 1B1.2.” U.S. v. Takahashi, 205 F.3d 1161 (9th Cir. 2000).
9th Circuit reverses “schoolyard” increase where conviction was under § 841. (240) 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 finds that defendant “involved” a child in his heroin transaction. (240) Section 2D1.2(a)(1) provides for a two level increase for “directly involving … an underage … individual” in a drug offense. Defendant argued that the district court should not have increased his offense level because he only used the child to hide the heroin. The Ninth Circuit rejected the argument, noting that the child was involved in the entire transaction. He was (1) with the defendant when he originally went to Huglen’s residence; (2) with Rodriguez when she obtained the heroin from defendant’s residence; (3) with defendant when he obtained the methamphetamine from Chaparro’s residence; and (4) with defendant and the others when they went to Safeway to sell the methamphetamine. Thus, the child was directly involved in the entire drug transaction concerning both the heroin and the methamphetamine. There was no error in applying the two-level increase under § 2D1.2. U.S. v. Beltran, 165 F.3d 1266 (9th Cir. 1999).
9th Circuit, applying Koon, permits downward departure for lack of knowledge of purity of drugs. (240) As the middle-man between the informant and the suppliers, defendant had no control over, or knowledge of, the purity of the methamphetamine he delivered. The district court ruled that it had no discretion to depart based on lack of knowledge of the purity of the drugs, but on appeal, the Ninth Circuit reversed, emphasizing that after Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), courts may not create additional categories of factors that they deem inappropriate as grounds for departure. The factors expressly prohibited by the guidelines are few. The court noted that application note 14 to § 2D1.1 permits a downward departure under certain circumstances when a defendant’s own conduct or that of his co-conspirators results in an offense level greater than justified by his capability. This note did not apply to defendant, but neither did it “occupy the field.” Although application note 9 precludes an upward departure on the basis of unusually high purity, it says nothing about whether a district court can depart downward. The court said that what falls within the “heartland” of a guideline is within the discretion and special expertise of the district court in the first instance. The case was remanded to permit the district court to exercise its discretion. U.S. v. Mendoza, 121 F.3d 510 (9th Cir. 1997).
9th Circuit requires “grouping” drug and money laundering counts. (240) Rejecting the Fifth and Eleventh Circuit opinions in U.S. v. Gallo, 927 F.2d 815, 824 (5th Cir. 1991) and U.S. v. Harper, 972 F.2d 321, 322 (11th Cir. 1992), the Ninth Circuit held that defendant’s convictions for money laundering and conspiracy to distribute marijuana and cocaine should have been “grouped” under guideline § 3D1.2, thereby reducing defendant’s sentence. The court reasoned that both offenses were victimless crimes that involved the same victim because “the societal interests that are harmed are closely related.” Moreover, both crimes were “connected by a common criminal objective.” Defendant “laundered money to conceal the conspiracy’s drug trafficking and thus facilitated the accomplishment of the conspiracy’s ultimate objective of obtaining the financial benefits of drug trafficking.” Judge Fernandez dissented, arguing that a person who has committed both offenses “has earned a sentence which is measurably greater than the sentence earned by a person who committed only one crime.” U.S. v. Lopez, 104 F.3d 1149 (9th Cir. 1997).
9th Circuit suggests that court could rely on proffer of expert on Nepalese culture. (240) The court denied a defense motion to present expert testimony about defendant’s religious beliefs and the culture of Nepal, including lack of knowledge of Western culture or of drug trafficking among the Nepalese, and neighborly obligation in Sherpa culture. The expert would also have corroborated defendant’s testimony that the small spoon he was carrying was a “naptul” a device for cleaning the ears, and not a narcotics spoon as the government alleged. In a footnote, the Ninth Circuit noted that while the court’s decision to exclude the expert testimony was not an abuse of discretion, “it is clear that the district judge was privy to information not shared by the jury that permitted him to assess the case against [defendant] differently for sentencing purposes.” Thus, even though the jury found that defendant knew he was carrying drugs, the record supported the district court’s conclusion that defendant “was culturally sheltered in such a way as to prevent his awareness of the questionable nature of his task.” U.S. v. Sherpa, 97 F.3d 1239 (9th Cir. 1996).
9th Circuit says cocaine and cocaine base are legally distinct even if not scientifically different. (240) At sentencing, defendant presented expert testimony that a substance containing “cocaine” necessarily contains “cocaine base.” He also submitted evidence from the record of U.S. v. Davis, 864 F.Supp. 1303 (N.D. GA). 1994, which held that the rule of lenity requires defendants to be sentenced under the provisions for “cocaine” rather than “cocaine base.” The Ninth Circuit declined to follow the Davis case, as have other circuits that have faced the issue. See, e.g. U.S. v. Booker, 70 F.3d 488, 489-91 (7th Cir. 1995), cert. denied, 116 S.Ct. 1334 (1996); U.S. v. Jackson, 64 F.3d 1213, 1219-20 (8th Cir. 1995), cert. denied, 116 S.Ct. 966 (1996); U.S. v. Fisher, 58 F.3d 96, 98-100 (4th Cir.), cert. denied, 116 S.Ct. 329 (1995). The Ninth Circuit said it was not bound to construe the statute as if it were a chemistry text, and that Shaw provides a workable distinction. “Cocaine base” is the form of the drug that is intended to be smoked. As the Booker case said, “cocaine base” means “crack.” By crack, the 1986 Congress meant “a new smokable form of cocaine that was more dangerous than powder cocaine, less expensive and highly addictive.” U.S. v. Jackson, 84 F.3d 1154 (9th Cir. 1996).
9th Circuit finds drug quantity is a sentencing factor, not an element of the crime of simple possession. (240) Agreeing with the Second and Seventh Circuit opinions in U.S. v. Monk, 15 F.3d 25, 27 (2d Cir. 1994) and U.S. v. Smith, 34 F.3d 514, 519-20 (7th Cir. 1994), the Ninth Circuit held that drug quantity is a mere sentencing factor, and is not an element of the crime of simple possession of drug defined in 21 U.S.C. §844(a). This decision is contrary to four other circuits that have concluded that the third sentence of subsection 844(a) creates a separate offense because drug quantity under §844(a) may determine the difference between a felony and a misdemeanor. U.S. v. Purwear, 940 F.2d 602-604 (10th Cir. 1991); U.S. v. Michael, 10 F.3d 838 (D.C. Cir. 1993); U.S. v. Sharp, 12 F.3d 605, 606-07 (6th Cir. 1993); U.S. v. Deisch, 20 F.3d 139 (5th Cir. 1994). Judge Canby dissented, arguing that the 9th Circuit should follow the cases that hold that a judge should not be able to turn a misdemeanor into a felony by a sentencing finding. U.S. v. Butler, 74 F.3d 916 (9th Cir. 1996).
9th Circuit applies “restraint” enhancement where defendant assaulted his co-conspirators. (240) Defendant tried to kill one of his cocaine suppliers for overcharging him. When another conspirator refused to travel on a drug buy and tried to run away, defendant chased her, brought her back at gunpoint and beat her. The Ninth Circuit upheld a two level enhancement under §3A1.3 for “physical restraint” of the victims. The court said the word “victim” referred to a victim of the restraint rather than a victim of the offense of conviction. Since the restraint was “in furtherance of the conspiracy,” it was proper for the district court to apply the two level enhancement even though the coconspirators were not “victims” of the drug and money laundering offenses for which defendant was convicted. U.S. v. Vought, 69 F.3d 1498 (9th Cir. 1995).
9th Circuit permits departure for “sentencing entrapment” where defendant was pressured to sell more drugs. (240) Several cases have suggested that sentencing entrapment may warrant a downward departure, but in this case, the 9th Circuit became the first to actually authorize a downward departure. Defendant was a user and sometime seller of LSD, but he sold only to personal friends, and had never engaged in a deal even approaching the magnitude of the transaction for which he was convicted. The district court found that defendant was not predisposed “to involve himself in what turned out to be, from the standpoint of the sentencing guidelines, an immense amount of drugs.” The case was remanded to permit the district court to depart downward for sentencing entrapment. Judge Beezer dissented, arguing that sentencing entrapment should be limited to “reverse stings,” in accordance with commentary note 17 to Guideline §2D1.1. U.S. v. Staufer, 38 F.3d 1103 (9th Cir. 1994).
9th Circuit reverses departure for “cheating” DEA agents in drug deal. (240) Instead of delivering three kilos of cocaine to the undercover DEA agents, defendant delivered three bricks of sawdust with about 25 grams of cocaine in a hollowed-out space. The district court departed upward five levels for the increased likelihood of violence during an attempted drug fraud. Defendant also received a five-year consecutive sentence under 18 U.S.C. § 924(c) for carrying a firearm in connection with the crime. On appeal, the 9th Circuit reversed the departure, holding that § 924(c) “necessarily reflect[s] concern for the increased risk of violence that attends attempted drug frauds (and attempted arrests) when weapons are present.” Since this factor was already considered in the 924(c) count, it was it was improper to use it to depart on the drug count. Judge Rymer dissented. U.S. v. Zamora, 37 F.3d 531 (9th Cir. 1994).
9th Circuit says verdict should specify the object of the multi-object conspiracy where the sentence will be affected. (240) The 9th Circuit held that where the object of a multi-object conspiracy affects the sentence, the jury verdict should specify the object of the conspiracy. Since it did not so specify, the case was remanded for resentencing on the lesser sentence of conspiracy to use a communication facility under 21 U.S.C. § 843(b), rather than on the greater sentence for conspiracy to commit the substantive drug offenses under 21 U.S.C. § 841(a)(1). The court gave the government the option of a new trial on the charge if it did not accept the new sentence. U.S. v. Garcia, 37 F.3d 1359 (9th Cir. 1994).
9th Circuit finds drugs in hotel room not relevant to attempted sale. (240) Defendant negotiated with an undercover agent to sell him 1/4 pound of methamphetamine and was arrested when he met the agent in a hotel parking lot to complete the sale. The drugs turned out to be ephedrine. In sentencing defendant, the court included the overall quantity of ephedrine found in defendant’s hotel room. The Ninth Circuit reversed, finding the drugs in the hotel room were not relevant to the charged conduct. The sentence should have been based only on the 111.4 grams (1/4 pound) defendant attempted to sell. U.S. v. Steward, 16 F.3d 317 (9th Cir. 1994).
9th Circuit reverses for error in quantity even though sentencing range unaffected. (240) The Ninth Circuit found the district court erroneously relied on the amount of ephedrine found in defendant’s hotel room in sentencing him for an attempted sale of methamphetamine. It agreed with the government that the offense level would not be changed by using the correct quantity. However, the court had “no way of knowing” whether the trial judge sentenced defendant at the upper end of the sentencing range because of the erroneous quantity calculation. Therefore, it was necessary to remand the case for resentencing. U.S. v. Steward, 16 F.3d 317 (9th Cir. 1994).
9th Circuit upholds quantity determination in meth case where only ephedrine sold. (240) Defendant was convicted of attempting to sell methamphetamine based on his sale of ephedrine to an undercover agent. The sentencing court based the sentence on the amount of methamphetamine that was the subject of the attempt rather than the amount of ephedrine actually sold. The 9th Circuit found it was proper to apply §2D1.1 rather than the precursor chemical guideline in §2D1.11. Note 12 of §2D1.1 addresses attempted sales that are not completed and provides that the weight under negotiation shall be used to calculate the weight. Here, defendant agreed to sell the undercover officer 1/4 pound of methamphetamine. Section 2D1.11 did not apply because there was no evidence defendant intended the ephedrine to be used in the manufacture of a controlled substance. U.S. v. Steward, 16 F.3d 317 (9th Cir. 1994).
9th Circuit excludes personal use amounts from sentence for possession with intent to distribute. (240) Defendant pled guilty to possession of approximately 117.25 grams with intent to distribute. At sentencing, he argued the district court should exclude the amount he possessed for personal use. The district court could not see how the amounts were severable. The Ninth Circuit reversed, holding that in calculating the base offense level for possession with intent to distribute, the district court cannot include any amount possessed strictly for personal use. The failure to make such distinction would contravene the fundamental principle of proportionality and result in sentencing a drug user who possessed 50 grams for personal use and gave one gram away to a more severe sentence than a drug dealer who possessed 49 grams for distribution. U.S. v. Kipp, 10 F.3d 1463 (9th Cir. 1993).
9th Circuit says drug amount alleged does not control quantity determination. (240) The government argued that the quantity alleged in the substantive drug count to which defendant pled guilty controlled the base offense level at sentencing. The Ninth Circuit disagreed, finding that by pleading guilty to possession with intent to distribute, defendant was not admitting that he possessed any particular quantity of narcotics with an intent to distribute. To the contrary, the plea agreement expressly reserved the right to argue quantity at sentencing. U.S. v. Kipp, 10 F.3d 1463 (9th Cir. 1993).
9th Circuit holds drug quantity is not an element of offense, but simply a sentencing factor. (240) Relying on U.S. v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir. 1991), and 9th Circuit Criminal Jury Instruction 9.04P (1992), Judges Boochever, Pregerson and Beezer noted 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 section 841(b), and is a matter for the district court at sentencing.” U.S. v. Baker, 10 F.3d 1374 (9th Cir. 1993).
9th Circuit suggests that mandatory minimum is proper even if defendant does not know quantity. (240) 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.2d 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 upholds sentence under 2D1.1 rather than 2D1.11 for attempt to manufacture meth. (240) Defendant pled guilty to conspiracy to possess listed chemicals with intent to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(d)(2). He argued that the court erred by calculating the base offense level under the guideline for unlawful manufacturing, section 2D1.1, instead of the guideline for possession of listed chemicals, section 2D1.11. In an extensive discussion, the 9th Circuit found that defendant attempted to manufacture methamphetamine by possessing listed chemicals and glassware and promising to sell methamphetamine for $10,000 a pound. Guideline section 2D1.4 states that “the offense level should be the same as if the object of the . . . attempt had been completed.” This directs that defendant’s offense level be calculated under section 2D1.1, the guideline for unlawful manufacturing. Since that offense level was higher than the guideline for possession of listed chemicals, 2D1.11, the district court did not err in basing defendant’s sentence on 2D1.1. U.S. v. Acuna, 9 F.3d 1442 (9th Cir. 1993).
9th Circuit reverses increase in drug offense level for use of private aircraft to import cocaine. (240) Guideline section 2D1.1(b)(2) provides for a two level increase if a defendant is convicted of importing a controlled substance “under circumstances in which (A) an aircraft other than a regularly scheduled commercial air carrier was used to import or export the controlled substance.” Here, the cocaine was delivered to a landing strip in Guatemala by private plane. It was unloaded and DEA agents took the cocaine and ultimately flew it into the United States on a commercial Pan Am flight. The 9th Circuit held that since the private plane was not actually used to import the cocaine, it was improper to increase defendant’s offense level by two levels under this section. The sentence was reversed. U.S. v. Joelson, 7 F.3d 174 (9th Cir. 1993).
9th Circuit holds sentence is controlled by amount of drug imported, not what defendant believed. (240) Defendant, a customs officer, pled guilty to conspiracy to import a controlled substance and official corruption based on his acceptance of bribes for allowing vehicles containing drugs to enter the United States through his inspection lane. The district court imposed sentence based on the quantity of cocaine that passed through the inspection lane. Defendant argued that the cocaine should be disregarded because he neither knew nor had any reasonable expectation of the importation of any drug other than marijuana. The Ninth Circuit rejected the challenge finding that because defendant personally undertook to pass the drug laden vehicles through the check point, he was responsible for the drugs that came through even if he did not know what they were. The concept of “foreseeability” within the meaning of the relevant conduct guideline does not apply to conduct that the defendant personally undertakes. U.S. v. Salazar, 5 F.3d 445 (9th Cir. 1993).
9th Circuit says fact that drug was cocaine hydrochloride was not variance from cocaine charge. (240) The defendants argued that the charged offenses related to “cocaine” or “cocaine base,” but that the proof offered at trial related to “cocaine hydrochloride.” The 9th Circuit rejected the argument saying it overlooked “the fact that the legal definitions of cocaine, cocaine base and cocaine hydrochloride differ from their chemical definitions. Cocaine hydrochloride is a salt of cocaine and therefore is defined as cocaine under 21 U.S.C. 841(b). The court noted that the sentencing guidelines do not differentiate between cocaine and cocaine salts; but draw distinctions only between cocaine and cocaine base. See U.S.S.G. section 2D1.1(c). The application notes provide that any reference to a particular controlled substance “includes all salts, isomers and all salts of isomers.” Section 2D1.1 comment (n.5) (emphasis added) U.S. v. Soto, 1 F.3d 920 (9th Cir. 1993).
9th Circuit finds schoolyard enhancement does not require distribution to students. (240) Defendant argued he should not have received the 2-level increase under §2D1.2(a) for committing his drug offense within 1000 feet of a schoolyard because the government did not prove he intended to distribute to the students. The 9th Circuit affirmed the increase finding it applies when the drugs are possessed within the protected area, here a schoolyard. Any drug offense committed within 1000 feet of a schoolyard “directly involves” a protected area and requires the increase. U.S. v. Walker, 993 F.2d 196 (9th Cir. 1993).
9th Circuit says new guideline for “listed chemicals” is not retroactive. (240) The guidelines were amended effective November 1, 1991, to add guideline section 2D1.11. This provision involves unlawfully distributing, importing, exporting or possessing a listed chemical. The defendant argued that his case fell into this category and that his base offense level should be reduced. The 9th Circuit rejected the argument, noting that the guidelines have not made section 2D1.11 retroactive. See U.S.S.G. section 1B1.10. U.S. v. Foster, 985 F.2d 466 (9th Cir. 1993), amended, 17 F.3d 1256 (9th Cir. 1994).
9th Circuit holds that since drug guidelines includes manufacturing, there is no need for analogies. (240) Guideline § 2D1.1 has the heading “Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession With Intent to Commit These Offenses).” The 9th Circuit ruled that in other words, the guidelines “include possession with intent to commit manufacturing” under unlawful manufacture. Thus there was no need for the court to invoke the principle of analogy in guideline § 2X5.1. Section 2D1.1 applied to defendant’s attempt to manufacture methamphetamine from ephedrine. U.S. v. Cook, 938 F.2d 149 (9th Cir. 1991).
9th Circuit holds cocaine base is not defined solely by presence of a hydroxyl ion. (240) Defendants argued that the legal definition of “cocaine base” is a cocaine compound containing a hydroxyl ion (OH-), such that it is a “base” as that term is used in chemistry. The 9th Circuit rejected the argument, holding that as long as cocaine base is objectively distinguished from cocaine hydrochloride, a defendant may be sentenced for distributing cocaine base. In this case, the chemist testified that cocaine base has a distinguishable chemical formula and has different properties from cocaine hydrochloride. He identified the substance involved here as cocaine base. The 9th Circuit concluded that Congress and the Sentencing Commission must have intended the term “cocaine base” to include “crack,” or “rock cocaine” which “we understand to mean cocaine that can be smoked, unlike cocaine hydrochloride.” Since the district court erred in defining “cocaine base” to mean cocaine that contains a hydroxyl ion, the sentence was vacated and remanded for resentencing. U.S. v. Shaw, 936 F.2d 412 (9th Cir. 1991).
9th Circuit rules that when there is no sentencing guideline for particular drug, guideline for most analogous drug applies. (240) The trial court found there was no applicable sentencing guidelines for the drug “euphoria.” The court followed guideline sections 2X5.1 and 1B1.2 which directed it to pick an analogous guideline. After conducting an evidentiary hearing the court concluded that the drug guideline for amphetamine, in § 2D1.4 was most analogous. The 9th Circuit held that the court correctly applied the guidelines based on the nature of the offenses and the substance involved. U.S. v. Marsh, 894 F.2d 1035 (9th Cir. 1990).
10th Circuit finds any error in drug importation increase was harmless. (240) Defendant was convicted of methamphetamine trafficking charges. He challenged a two-level § 2D1.1(b)(5) enhancement for an offense involving the importation of meth. However, if that increase was omitted from the court’s guideline calculation, it would not have changed defendant’s sentencing range. Regardless of the enhancement, his guideline range would remain 360 months to life. The district court had departed downward to 300 months based on defendant’s current age, finding the below-guidelines sentence was sufficient to reduce his likelihood of re-offend at the age he would have reached on release. Defendant argued that the district court might have made an even greater downward variance had the importation enhancement not been applied. The Tenth Circuit found that any error in applying the importation increase was harmless. Defendant’s argument about the extent of the court’s variance was “pure speculation.” The factors on which the variance was based remained the same regardless of whether the importation enhancement was applied. U.S. v. Serrato, 742 F.3d 461 (10th Cir. 2014).
10th Circuit remands where court did not apply amendment capping offense level of minor participant. (240) The government argued that defendant failed to prove he was entitled to the minor participant reduction, and that the evidence pointed to a more significant role in the drug conspiracy. The Tenth Circuit found it unnecessary to resolve the merits of his claim, since several months before defendant’s sentencing, a change in the guidelines provided that the base offense level for a defendant granted a minor-participant reduction on drug charges can be no higher than 30. U.S.S.G. § 2D1.1(a)(3). Defendant was given a minor-participant reduction but sentenced at a base offense level of 38. Although defendant did not challenge the court’s determination of his base offense level at sentencing, the government conceded that the error was plain. Whether or not the court erred in granting the minor-participant adjustment, the sentence was erroneous. Either the court erred in granting the minor participant adjustment, or if not, it erred in failing to cap the base offense level at 30. Resentencing must be conducted in light of the Supreme Court’s recent decision in U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Cano-Silva, 402 F.3d 1031 (10th Cir. 2005).
10th Circuit remands under Booker even though sentence was based on admitted drug quantity. (240) The district court applied Sentencing Guidelines that corresponded to the drug quantity admitted by defendant in his guilty plea rather than the larger drug quantity contained in the PSR. The Tenth Circuit remanded for resentencing under U.S. v. Booker, 543 U.S. 220 (2005), even though defendant’s case did not involve a Sixth Amendment violation. In Booker’s companion case, the district court held that Blakely applied to the federal Sentencing Guidelines and sentenced the defendant Fanfan based solely on drugs found by the trial jury. The Supreme Court nonetheless found that the government and defendant could seek resentencing under Booker. U.S. v. Lynch, 397 F.3d 1270 (10th Cir. 2005).
10th Circuit holds that defendant did not prove he did not participate in underlying drug offense. (240) Defendant pled guilty to managing or controlling a building and making it available for illegal drug activity, 21 U.S.C. § 856(a)(2). Guideline § 2D1.8(a)(2) provides that the offense level shall be the same as for the underlying drug offense, except that if the defendant did not participate in the underlying drug offense other than allowing use of the premises, then the offense level shall be capped at level 16. The Tenth Circuit held that the burden falls on a defendant to prove he did not personally participate in order to obtain the benefits of subsection (a)(2). Defendant did not establish that he did not personally participate in the underlying drug offense. At the time of his arrest immediately before the search of his residence, defendant possessed about 17 grams of crack. Police found 196 grams of crack, about $6000 in cash, marijuana and a mobile phone in a bedroom in defendant’s house. Other evidence found in this bedroom, most notably a vehicle registration certificate, indicated that the bedroom and its contents belonged to defendant. U.S. v. Dickerson, 195 F.3d 1183 (10th Cir. 1999).
10th Circuit rejects claim that counsel was ineffective in failing to challenge type of drug. (240) Defendant contended that his counsel was ineffective during his plea colloquy and at sentencing for failing to make the government prove that his conspiracy involved crack rather than powder cocaine. The Tenth Circuit rejected this claim. To prove that counsel’s ineffectiveness made his guilty plea involuntary, defendant would have had to show that but for counsel’s ineffectiveness, he would not have pled guilty and would have proceeded to trial. Defendant did not make this claim. Moreover, defendant’s earlier admissions relieved the government of its burden of proving the type of drug involved. Count One of the indictment, to which defendant pled guilty, specified “cocaine base, ‘crack.’” Earlier, he had admitted in his Petition to Enter Guilty Plea that he had conspired to possess and distribute “cocaine base (crack),” and admitted at his plea hearing that he dealt with crack. Although defendant might claim that counsel was ineffective in recommending that he plead guilty to Count One as written, he would then have the burden of proving that counsel’s deficient performance prejudiced him. However, defendant failed to claim the existence of any evidence that the drug involved was not crack. U.S. v. Gray, 182 F.3d 762 (10th Cir. 1999).
10th Circuit holds that attempt guideline does not apply to attempted drug crimes. (240) Defendant attempted to purchase cocaine from undercover government agents. He argued that the district court should have made a three-level reduction under § 2X1.1 because his offense was only an attempt. The Tenth Circuit held that § 2X1.1, the attempt guideline, does not apply to attempted drug crimes. By its express terms, § 2X1.1 does not apply when an attempt “is expressly covered by another offense guideline section.” Indeed, the title of § 2D1.1 states that the guideline covers “Attempt or Conspiracy.” There is no ambiguity that would require application of the rule of lenity. The language of the guidelines are clear. Recent amendments confirm that defendants convicted of attempting or conspiring to commit drug offenses are to be sentenced under the same guidelines as defendants convicted of completed drug offenses. U.S. v. Onheiber, 173 F.3d 1254 (10th Cir. 1999).
10th Circuit suggest § 2255 claim based on use of wrong guideline will be successful on remand. (240) In 1990, when defendant was sentenced for possessing a listed chemical with intent to manufacture a controlled substance, § 2D1.1 did not cover the described offense, and there was “no sufficiently analogous guideline” to apply under § 2X5.1. Thus, in U.S. v. Voss, 956 F.2d 1007 (10th Cir. 1992), the Tenth Circuit vacated a listed chemical sentence calculated under § 2D1.1, and remanded for resentencing under 18 U.S.C. § 3553. In 1997, defendant brought a § 2255 motion. He later moved to amend the § 2255 motion, asserting that the same error made in Voss had been made in his case. The district court denied relief on the grounds raised in the initial § 2255 motion without any reference to the pending motion for amendment. Since the case was being remanded anyway, the Tenth Circuit was “reluctant to say the performance-and-prejudice test for ineffective assistance of counsel is necessarily satisfied here.” However, “it would be equally premature to hold to the contrary, particularly without any development and analysis of the issue by the district court to review.” Although the government raised procedural bar concerns, if defendant’s claim was the “evident winner it appears to be, such concerns could well be obviated by defendant’s allegations of ineffective assistance of counsel.” U.S. v. Leopard, 170 F.3d 1013 (10th Cir. 1999).
10th Circuit holds that cocaine base need not contain sodium bicarbonate to be crack. (240) Defendant argued that his sentence was improperly based on the distribution of crack rather than powder cocaine, since there was no evidence that the cocaine base involved in his offense contained sodium bicarbonate (baking soda). The Tenth Circuit held that cocaine base need not contain sodium bicarbonate to be crack for sentencing purposes. The guidelines state that crack is “usually prepared by processing cocaine hydrochloride and sodium bicarbonate.” The qualifier “usually” is an acknowledgement that other methods of crack preparation exist and that cocaine base need not contain sodium bicarbonate to qualify as crack. The trial evidence demonstrated that the material in question was “street-form” crack rather than unprocessed cocoa paste. U.S. v. Brooks, 161 F.3d 1240 (10th Cir. 1998).
10th Circuit follows Edwards, holding that judge determines whether crack was involved. (240) Defendant was convicted of a cocaine powder and crack conspiracy. He argued that because the general verdict did not designate the particular objects of the conspiracy, the court should have presumed that the jury found him guilty only of a conspiracy involving cocaine powder. The Tenth Circuit ruled that under the Supreme Court’s recent decision in Edwards v. U.S., 118 S.Ct. 1475 (1998), the sentencing judge was authorized to determine for sentencing purposes whether crack was involved in the conspiracy. Regardless of the jury’s actual or assumed beliefs about the conspiracy, the guidelines require the judge to determine whether the controlled substances consisted of cocaine, crack, or both. The judgment clearly recited that the court adopted the factual findings and guideline application in the PSR. U.S. v. Bell, 154 F.3d 1205 (10th Cir. 1998).
10th Circuit finds sufficient evidence that substance was crack cocaine. (240) Defendant pled guilty to cocaine base charges, The district court based his sentence on the crack cocaine guidelines. Defendant argued that the government did not meet its burden of proving that the cocaine base was crack. The Tenth Circuit found there was ample evidence that the substance was crack, even though the chemical analysis report only identified the substance as cocaine base. The stipulation by defendant and the government used the terms “cocaine base” and “crack cocaine” interchangeably. Defendant agreed to the stipulation and did not object when it was read into the record. Moreover, the officers who conducted the searches all testified that the substance was crack cocaine. Finally, all the witnesses who purchased drugs from or sold drugs to defendant described the substance as crack cocaine or testified that they witnessed the “rocking-up” process. Defendant did not present any evidence that the substance was not crack cocaine. U.S. v. Cantley, 130 F.3d 1371 (10th Cir. 1997).
10th Circuit rejects downward departure based on harsher crack sentences. (240) Defendant was convicted of two counts of distributing crack cocaine. He asked for a downward departure because of harsh sentences for crack cocaine despite the only “nominal difference” between crack and powder cocaine. The Tenth Circuit held that the harsher crack penalties was no basis for a downward departure. The issue of the appropriate sentencing levels for crack offenses is not the sort of discrete, individual and case-specific mitigating circumstances justifying a downward departure. U.S. v. McCloud, 127 F.3d 1284 (10th Cir. 1997).
10th Circuit uses D‑meth rather than L‑meth based on drugs from supplier. (240) Defendant argued that the district court erred in attributing D‑methamphetamine to him instead of L‑methamphetamine. The Tenth Circuit affirmed the use of D‑methamphetamine based on drugs seized from defendant’s supplier. No drugs were ever seized from defendant. However, defendant told police that he had purchased one ounce a week over a period of six months from one supplier. At the sentencing hearing, both a narcotics investigator and a DEA chemist testified that drugs seized during the supplier’s arrest were D‑methamphetamine. There was no evidence suggesting that defendant ever possessed L‑methamphetamine. U.S. v. Jones, 80 F.3d 436 (10th Cir. 1996).
10th Circuit reviews jury’s non‑unanimous findings regarding absence of mitigating factors in death penalty case. (240) Defendant received the death penalty for his conviction of murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e). He argued that the jurors erred in failing to find three mitigating factors. The Tenth Circuit held that it could review the non-unanimous jury findings. One juror refused to find that defendant’s I.Q. was 80. This was reasonable in light of the anomalous test results and defendant’s incentive to distort his abilities. The finding of four jurors that defendant did not suffer from a brain dysfunction was also reasonable since the defense expert lacked “hard medical evidence” to support his theory and was relying on neuropsychological evidence. The finding of ten jurors that defendant did not prove he suffered from attention‑deficit disorder was also reasonable. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit upholds statutory aggravating factors for death penalty under 848(e). (240) Defendant was convicted of murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e) and was sentenced to death. The district court submitted four statutory aggravating factors to the jury under 21 U.S.C. § 848(n)(1)(C) and the jury found all four. In reversing on other grounds, the Tenth Circuit held that the statutory factors were properly submitted to the jury. The (n)(1) factors were not merely eligibility factors, but were aggravating factors to be weighed against mitigating factors in the selection phase of sentencing. The factors adequately narrowed the class of death‑eligible defendants. The jury properly found that defendant committed the offense after substantial planning and premeditation. “Substantial planning” does not require “considerably more planning than is typical,” but rather means “considerable” or “ample for commission of the crime.” The jury also properly found that defendant committed the offense for compensation, even though defendant killed the wrong victim. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit upholds reliance on non‑statutory aggravating factors in death penalty under 848(e). (240) In imposing the death penalty under 21 U.S.C. § 848(e), the district court submitted four non‑statutory aggravating factors to the jury: (1) use of a deadly weapon, (2) defendant’s two or more prior convictions, (3) defendant’s commission of the charged offense, and (4) repeated attempts to rehabilitate defendant had been unsuccessful. The Tenth Circuit reversed on other grounds, but held that the prosecutor’s power to promulgate non‑statutory aggravating factors did not amount to an unconstitutional delegation of power to the Executive Branch. The statutory aggravating circumstances circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit reverses death penalty where jury may have relied on duplicative aggravating factors. (240) Defendant was convicted of murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e) and was sentenced to death. The Tenth Circuit held that the district court erred in submitting duplicative and cumulative aggravating factors to the jury. The court submitted to the jury the § 848(n)(1)(C) statutory aggravating factor “intentionally engaged in conduct intending that the victim be killed or that legal force be employed against the victim, which resulted in the death of the victim.” It also submitted the non‑statutory aggravating factor “committed the offenses as to which he is charged in the indictment.” These two factors substantially overlap each other. Such double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and create the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit rules cocaine base amendment was substantive change not to be applied retroactively. (240) Defendant was sentenced for possession of cocaine base. After he was sentenced, effective November 1, 1993, the Sentencing Commission issued Amendment 487, which amended § 2D1.1(c) to provide that “cocaine base” means “crack” for sentencing purposes. Under this amendment, forms of cocaine base other than crack are to be treated as cocaine. Defendant argued that this amendment should be applied retroactively to allow his sentence to be reduced. The Tenth Circuit held that Amendment 487 was a substantive change and therefore should not be applied retroactively. Section 1B1.10 does not list the amendment as one to be applied retroactively to reduce a defendant’s sentence. Therefore, it can only be given retroactive effect if it is a clarifying amendment, rather than a substantive one. The amendment defined the term “cocaine base” more narrowly than existing law in the circuit. Therefore, it was a substantive amendment to the guidelines, and should not apply retroactively. U.S. v. Kissick, 69 F.3d 1048 (10th Cir. 1995), abrogated on other grounds by Glover v. U.S., 531 U.S. 198 (2001).
10th Circuit requires expert testimony on chemical nature of DL-methamphetamine. (240) Defendant mailed a package containing 440.7 grams of DL-methamphetamine, with 30% purity, or 132.2 grams of pure DL-meth. The district court, adopting the view that DL-meth is a third “molecular form” of meth, based his offense level on 132.2 grams of “pure methamphetamine.” Defendant contended that DL-meth is not “pure meth” under the guidelines, but a mixture of 50% D-meth and 50% L-meth. The Tenth Circuit found that to make that determination, it needed expert testimony defining the chemical nature of methamphetamine. The case was remanded to determine, by expert testimony, the chemical nature of DL-methamphetamine–whether it is simply a mixture of D-meth and L-meth, or something else. U.S. v. Cook, 49 F.3d 663 (10th Cir. 1995).
10th Circuit holds 21 U.S.C. § 860(a) is an offense, not a sentence enhancer. (240) Under 21 U.S.C. § 860(a), a person who violates § 841(a)(1) by distributing a controlled substance within 1000 feet of a school is subject to twice the maximum punishment authorized by § 841(a)(1). The 10th Circuit held that § 860(a) is a substantive offense, and not a sentence enhancer. No remand was necessary, because defendant was sentenced under § 841(a)(1) and was not subject to the stepped-up penalties in § 860(a). U.S. v. Ashley, 26 F.3d 1008 (10th Cir. 1994).
10th Circuit holds that sentencing P2P under methamphetamine statute was plain error. (240) Defendants were convicted of a conspiracy involving P2P, a Schedule II controlled substance used in the production of amphetamine and methamphetamine. The 10th Circuit found that it was “plain error resulting in manifest injustice” to sentence them under 21 U.S.C. § 841(b)(1)(A)(viii), which applies to offenses involving 100 grams or more of methamphetamine. Although the government contended that defendants were convicted of conspiracy to distribute P2P intending that it be used to manufacture methamphetamine, the indictment did not mention any such intent. Thus, defendants mandatory life sentences were improper. U.S. v. Johnson, 12 F.3d 1540 (10th Cir. 1993).
10th Circuit refuses to apply 2D1.1 to conspiracy to carry firearm during a drug trafficking offense. (240) The 10th Circuit rejected the application of guideline section 2D1.1 to a defendant convicted solely of a conspiracy under 18 U.S.C. 371 to use or carry firearms during the commission of a drug trafficking offense in violation of 18 U.S.C. section 924(c). While a defendant must have intended to commit a drug trafficking crime in order to be convicted of this conspiracy charge, a conspiracy to use or carry a firearm during a drug trafficking crime is distinct from a conspiracy to commit the drug trafficking offense. The appropriate guideline for section 371 conspiracies is section 2X1.1. Under this guideline, the base offense level is determined by the guideline for the substantive offense. However, section 2K2.4(a), the guideline for the underlying section 924(c) offense, does not provide a base offense level but references only the term of imprisonment required by statute. In this situation, section 2X5.1 directs a court to apply “the most analogous guideline,” which in this case is section 2K2.1(a)(7). U.S. v. Morehead, 959 F.2d 1489 (10th Cir. 1992).
10th Circuit calculates offense level based upon highest offense level in grouped counts. (240) Defendant pled guilty to engaging in a continuing criminal enterprise, one of the predicate acts of which was manufacturing a quantity of methamphetamine. Defendant also pled guilty to manufacturing a quantity of methamphetamine. He contended it was error for the district court to calculate his offense level as 36, the base offense level for the manufacture of methamphetamine, rather than 32, which was the base offense level for engaging in a continuing criminal enterprise. The 10th Circuit rejected this argument, finding that since the offenses were grouped, the district court properly assigned defendant the highest offense level for the group. The court also rejected defense counsel’s suggestion that the methamphetamine charge was a lesser-included offense of the continuing criminal enterprise offense. U.S. v. Morrow, 929 F.2d 566 (10th Cir. 1991).
10th Circuit upholds upward departure on the basis of large quantity of drugs involved. (240) Defendant pled guilty to maintaining a place for the purpose of distributing cocaine. Because of the quantity of cocaine involved in the offense, the district court departed upward from the guideline sentencing range of 15 to 21 months, and sentenced defendant to 36 months. Guideline § 2D1.8, entitled “Renting or Managing a Drug Establishment,” does not specifically mention the quantity of drugs as a relevant factor in determining the offense level. Defendant argued that the absence of any mention of the amount of drugs reflected the Sentencing Commission’s deliberate rejection of amount as a factor to be considered in sentencing under this section. The 10th Circuit rejected this argument, finding that a factor may be considered and used to justify a departure even though it is not listed under the relevant guideline section. However, the district court failed to explain the reasons for the extent of its departure. Therefore, the 10th Circuit remanded the case to the district court to explain its reasons. U.S. v. Davis, 912 F.2d 1210 (10th Cir. 1990).
10th Circuit holds that unless plea agreement so provides, sentencing court may not consider information revealed by defendant in cooperating. (240) Resolving “an important issue of first impression under the guidelines,” the 10th Circuit held that information concerning drug offenses which was disclosed in the course of cooperation with the government under a plea bargain could not be used to determine the base offense level for a drug offense. Here, the defendant had pled guilty to possessing 55 grams of cocaine for distribution. As part of the plea agreement, she cooperated with the government and disclosed that she had previously transported 6 ounces of cocaine. The plea agreement stated that she would not be prosecuted based upon the information she revealed, but also stated that no agreements concerning sentences existed; sentencing was left to the sole discretion of the judge. Under these circumstances, it was erroneous for the sentencing court to aggregate the 6 ounces of cocaine with the 55 grams for sentencing purposes. The court held that § 1B1.8 (plea bargain) requires the agreement to specifically allow the court to consider such information, otherwise informants might be reluctant to provide information for fear that it will be used against them. U.S. v. Shorteeth, 887 F.2d 253 (10th Cir. 1989).
11th Circuit upholds increase for addict’s death while using drugs supplied by co-conspirators. (240) Section 2D1.1(a)(1) sets the base offense level at 43 or life, if the defendant is convicted of conspiracy to violate 21 U.S.C. § 841(B)(1)(a), and death or serious bodily injury resulted from use of the illegal substance, and the defendant had a prior conviction for a similar offense. Here, an addict died from an overdose of methadone, with cocaine as a contributing factor. Prior to his death, the addict had frequently obtained drugs from members of the charged conspiracy at their drug house. Two of the drugs included methadone and cocaine, and the jury specifically found these drugs were objects of the conspiracy. A witness who frequently purchased drugs with the addict testified that the addict got the cocaine from one defendant, and that another defendant supplied them with a place to stay after injecting the methadone. A third defendant was present in the apartment where the witness and the addict stayed. The Eleventh Circuit held that the death of one of several addicts who purchased drugs at the drug house was reasonably foreseeable. However, the death enhancement was improper for a fourth conspirator where there was no evidence that he was a member of the conspiracy prior to the addict’s death. U.S. v. Westry, 524 F.3d 1198 (11th Cir. 2008).
11th Circuit approves increase for importation of meth where there was insufficient time to load meth on truck prior to defendant’s arrest. (240) Alabama state troopers stopped defendant’s truck and found over 30 kilograms of methamphetamine. Defendant told the troopers that he had been driving for 12 hours. At trial, an INS agent testified that the truck defendant was driving had crossed the border from Mexico into the U.S. about 14 hours before defendant was pulled over. The agent also testified that driving from Laredo to Mobile, where defendant was pulled over, would take about 12 1/2 hours. Section 2D1.1(b)(4) provides for a two-level increase if the offense involved the importation of methamphetamine and defendant did not play a minor or mitigating role in the offense. The Eleventh Circuit affirmed a § 2D1.1(b)(4) enhancement for importing meth. A trier of fact could properly conclude that the time required to secrete the drugs as they were, coupled with driving time, established that the meth was necessarily imported, since it had to have been in the truck before it crossed the border. The enhancement was proper even if defendant did not meet the truck until after it had crossed the border. The enhancement is not limited to those defendants who themselves transport meth across the border. Moreover, the importation of the meth had not ended by the time he began driving the truck in the U.S. Defendant drove the drugs hundreds of miles from Texas to Alabama as part of the ongoing importation. U.S. v. Perez-Oliveros, 479 F.3d 779 (11th Cir. 2007).
11th Circuit holds that reimposition of guideline sentence on remand was reasonable. (240) Defendant was convicted of drug trafficking while on board a vessel subject to federal jurisdiction. Based on U.S. v. Booker, 543 U.S. 220 (2005), the appellate court vacated his sentence and remanded for resentencing. After hearing arguments based on the 18 U.S.C. 3553(a) factors, the district court imposed the same 108-month sentence, which was at the bottom of the applicable guideline range. The Eleventh Circuit held that the sentence was reasonable, and the court’s statement of reasons was sufficient. Prior to imposing sentence, the district court heard defendant’s mitigating circumstances and considered his apology. These items all concerned “the nature of the offense and the history and characteristics of the defendant” under § 3553(a)(1). The court expressly noted the seriousness of the offense, see § 3553(a)(2), and the parties’ arguments and the PSR’s calculations outlined “the kinds of sentences available,” see § 3553(a)(3). The government also noted that defendant was receiving a much lower sentence that his co-defendants. Because the sentence reflected consideration of several relevant factors under § 3553(a), the sentence was reasonable. There was no error in the court’s explanation of its reasoning for imposing a sentence at the low end of the guidelines. A court is not required to articulate its consideration of each individual § 3553(a) factor, particularly where, as here, it was obvious the court had considered many of them. U.S. v. Bonilla, 463 F.3d 1176 (11th Cir. 2006).
11th Circuit holds that enhancements for captain and leadership role was not double counting. (240) Defendant argued that the district court misapplied the Sentencing Guidelines by enhancing his sentence for being the captain of a vessel, § 2D1.1(b) (2)(B), and for being the organizer or leader of criminal activity, § 3B1.1. The Eleventh Circuit held that the two enhancements were proper. There was no dispute that defendant was sought to captain the go-fast boat carrying the drugs because he possessed documentation identifying him as the captain of a fishing vessel and that he was the captain and operated the boat. In addition to being the captain, defendant knew the destination of the boat for the delivery of the cocaine. He was following the instructions of the drug dealers as to the delivery. He was also in charge of his four co-defendants on the go-fast boat and oversaw one co-defendant as he drove the go-fast boat for three to six hours as well as directed him to change a fuel tank. Under U.S. v. Rendon, 354 F.3d 1320 (11th Cir. 2003), the two enhancements were not double counting. The two enhancements embody “conceptually separate notions relating to sentencing” because they are designed for two different purposes, and neither the guideline nor its commentary suggested they may not be applied cumulatively. U.S. v. Ramirez, 426 F.3d 1344 (11th Cir. 2005).
11th Circuit holds that Amendment 591 did not apply to determination of drug quantity. (240) Amendment 591 to the Sentencing Guidelines requires the initial selection of the offense guideline be based only on the statute or offense of conviction rather than on judicial findings of actual conduct not made by the jury. The change was designed to clarify whether enhanced penalties provided by § 2D1.2 (relating to drug offenses near protected locations or involving protected individuals) apply where the offense of conviction is referenced to that guideline, or whether such enhanced penalties can be used whenever a defendant’s relevant, uncharged conduct includes drug sales in protected location or involving a protected individual. defendant argued that Amendment 591 retroactively prohibited the district court from selecting the base offense level under § 2D1.2 where the judge, not the jury, found the requisite drug quantity used in determining his offense level. The Eleventh Circuit held that Amendment 591 did not provide a basis to reduce defendant’s sentence. Amendment 591 applies only to the choice of the proper offense guidelines, not to the selection of the base offense level set forth by that guideline. U.S. v. Moreno, 421 F.3d 1217 (11th Cir. 2005).
11th Circuit holds that defendant’s admission that he navigated vessel supported “navigator” enhancement.” (240) Defendant left Jamaica on a “go-fast” boat containing 1000 kilograms of marijuana. Two other individuals were also on the boat. Defendant admitted that he was at the helm of the boat when he left Jamaica and when the boat was intercepted by the Coast Guard. The district court applied a § 2D1.1(b)(2)(B) enhancement for being a “pilot, copilot, captain, navigator … or any other operations officer” on a boat. Defendant challenged the increase, claiming that he lacked formal training and that each man took turns driving the boat. The Eleventh Circuit affirmed the increase, declining to adopt a narrow definition of the terms in § 2D1.1(b)(2). The enhancement creates a test about the facts of the offense, not a term of art. The facts here easily supported the increase. Defendant admitted that he was a lifelong fisherman, he drove the boat as it left Jamaica, and he was driving the boat when the Coast Guard boarded it. In addition, defendant followed instructions on where to steer the boat and used a compass to navigate. That defendant was not officially named the captain or pilot was not dispositive. U.S. v. Cartwright, 413 F.3d 1295 (11th Cir. 2005).
11th Circuit holds that defendant was captain of “go-fast” boat smuggling drugs. (240) Defendant and other crew members of a so-called “go-fast” boat were intercepted by the Coast Guard after dumping a large amount of cocaine into the water. Defendant challenged a two-level increase under § 2D1.1(b)(2)(B) for being the captain of the boat, arguing that the go-fast vessel was nothing more than a speedboat, and the term “captain” refers to an individual listed on a ship’s manifest as the captain. The Eleventh Circuit disagreed, since the facts showed that defendant was the captain in an employment, navigational, and operational sense. He identified himself as the captain to boarding Coast Guard personnel, and his co-defendants testified that they considered him to be the captain because he not only navigated the boat and was the only crew member who knew its course, but also he had hired the crew and directed their operations on board. He cited no authority for his technical definition of “captain.” The panel also rejected defendant’s claim that the controlled substances must actually have been imported for the increase to apply. It did not matter that defendant’s go-fast boat was stopped before the actual importation was completed. U.S. v. Rendon, 354 F.3d 1320 (11th Cir. 2003).
11th Circuit holds that captain and leadership increases were not double counting. (240) Defendant and other crew members of a so-called “go-fast” boat were intercepted by the Coast Guard after dumping a large amount of cocaine into the water. The Eleventh Circuit rejected defendant’s claim that a captain increase under § 2D1.1(b)(2)(B) and a leadership increase under § 3B1.1(a) was improper double counting. Neither of the two sentencing factors is a subset of the other. A defendant may captain a craft or vessel without serving as an organizer or leader in the overall conspiracy. Likewise, a defendant may be an organizer or leader of a drug conspiracy without having anything to do with the actual operation of the vessel used to transport the drugs. Absent an instruction to the contrary, the adjustments from different guideline sections are applied cumulatively. U.S. v. Rendon, 354 F.3d 1320 (11th Cir. 2003).
11th Circuit says “death or serious bodily injury” enhancement did not violate Apprendi. (240) Defendant sold heroin to Elliot, who went to a hotel room and snorted the heroin. That evening a hotel employee found Elliot unconscious and snoring loudly in the hallway. The employee and Elliot’s roommate dragged Elliot to his room and placed him in bed. Less than an hour later, Elliot died from a heroin overdose. Defendant was convicted of heroin charges. The district court enhanced his sentence under 21 U.S.C. § 841(b)(1)(C) because it found by a preponderance of the evidence that “death or serious bodily injury” had resulted from defendant’s offense. The Eleventh Circuit held that the enhancement did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000), because defendant’s 20-year sentence did not exceed the maximum sentence authorized under § 841(b)(1) (C) for a heroin offense not involving “death or bodily injury.” There was sufficient evidence to connect defendant’s drug offense with Elliot’s death. Defendant admitted that he sold heroin to Elliot and that the heroin was in Elliot’s system when he died. The medical examiner determined that Elliot died as a result of cardio-respiratory arrest due to heroin toxicity. The hotel employee and the victim’s roommate were not “intervening factors” that severed the causal connection between the offense and Elliot’s death. U.S. v. Rodriguez, 279 F.3d 947 (11th Cir. 2002).
11th Circuit holds that private plane enhancement only applies to completed import or export of drugs. (240) Defendants were co-pilots of a private aircraft that slid off the runway and crashed during takeoff from an airport in Florida. They were convicted of attempting to import marijuana into the U.S. Guideline § 2D1.1(b)(2) contains a two-level enhancement if the defendant “unlawfully imported or exported” drugs under circumstances in which a private plane, rather than a regularly scheduled commercial air carrier, “was used to import or export” the drugs. Defendant argued that the enhancement was improper because no actual importation or “use” actually occurred. The Eleventh Circuit agreed that the guideline applies only to a completed or actual importation or exportation. The plain language of the guideline that uses the past tense “used to import” cannot be ignored. The district court’s reliance on the terms in the title of the guideline as explanatory of the guideline was improper. U.S. v. Chastain, 198 F.3d 1338 (11th Cir. 1999).
11th Circuit finds value of drugs and continuing nature of business supported D-meth finding. (240) The Eleventh Circuit upheld the district court’s finding that D-methamphetamine was involved in defendants’ drug conspiracy. The original trial testimony on the value of the meth sold, combined with the testimony of the DEA agent at resentencing (that the value of the drugs in the case and the continuing nature of defendants’ drug business meant that drug was D-meth) was sufficient to support the district court’s finding on the kind of meth. U.S. v. Ramsdale, 179 F.3d 1320 (11th Cir. 1999).
11th Circuit holds uncharged act of selling drugs near school does not permit using § 2D1.2. (240) Defendant sold cocaine to an undercover agent in a parking lot located within 500 feet of an elementary school. Rather than charging defendant with violating 21 U.S.C. § 860, which prohibits drug activity near a school, the government charged him with a drug conspiracy under § 846 and § 841(a). The district court sentenced him under § 2D1.2, which applies to drug offenses near protected locations, rather than § 2D1.1, which applies to other drug offenses. The Eleventh Circuit held that defendant’s uncharged act of selling drugs near a school did not permit using § 2D1.2. The guideline is determined by the offense of conviction, not relevant conduct. The indictment here did not refer to § 860 or the proximity of the transaction to the elementary school. Defendant’s concession at sentencing that his drug activity took place within 500 feet of a school was not a formal stipulation. The Statutory Index lists only § 2D1.1 for violations of § 841(a), and only § 2D1.2 for violations of § 860. U.S. v. Saavedra, 148 F.3d 1311 (11th Cir. 1998).
11th Circuit upholds discretion not to reduce sentence based on marijuana amendment. (240) Defendant pled guilty to marijuana charges and was sentenced to 120 months. Two years later, the Sentencing Commission adopted Amendment 516, which reduced the amount of marijuana attributed to defendants. Based on Amendment 516, defendant moved under § 3582(c)(2) to reduce his sentence. The district court denied the motion, stating that given defendant’s violence and other factors, it would have imposed the same sentence under the amended guideline. The Eleventh Circuit upheld the district court’s refusal to reduce defendant’s sentence based on the later guideline amendment. The power to reduce a sentence under § 3582 is discretionary. Agreeing with the Eighth Circuit’s decision in U.S. v. Wyatt, 115 F.3d 606 (8th Cir. 1997), abrogation recognized by U.S. v. Curry, 584 F.3d 1102 (8th Cir. 2009), the court held that the sentencing court was not bound by its prior eight-level departure. The district court also correctly considered the § 3553(a) factors in ruling on defendant’s motion. U.S. v. Vautier, 144 F.3d 756 (11th Cir. 1998)
11th Circuit holds conspiracy to possess cocaine powder and crack is not a multi-object conspiracy. (240) Defendants were convicted of conspiracy to possess with intent to distribute cocaine powder and crack cocaine, in violation of 21 U.S.C. § 841(a). The court held defendants accountable for various amounts of both cocaine powder and crack cocaine. Defendants argued for the first time on appeal that under § 1B1.2(d), the district court was required to find beyond a reasonable doubt whether the conspiracy involved powder, crack, or both. The Eleventh Circuit held that § 1B1.2(d) was not applicable because the charged conspiracy was not a multi-object one. Defendants were charged with conspiracy to violate 21 U.S.C. § 841(a) by possessing with intent to distribute a controlled substance. Thus, the conspiracy had only one object. The conspiracy was to commit one crime in two ways. The court was merely required to find by a preponderance of the evidence that defendants were involved in a conspiracy to possess both powder and crack. U.S. v. Riley, 142 F.3d 1254 (11th Cir. 1998).
11th Circuit holds drug quantity is element of separate offense in possession statute. (240) Defendant was convicted of conspiracy to possess a controlled substance under 21 U.S.C. §§ 844(a) and 846. Section § 844(a) provides for a maximum one-year sentence for a first-time offender. However, the third sentence states if the offense involves five or more grams of cocaine, the maximum sentence shall be five years. Agreeing with the Tenth, District of Colombia, Sixth and Fifth Circuits, the Eleventh Circuit held that the third sentence of § 844(a) creates a separate offense because drug quantity under § 844(a) may determine the difference between a felony and a misdemeanor. The court rejected the view of the Second, Seventh and Ninth Circuits that drug quantity is a mere sentencing factor, and not an element of the crime of simple drug possession. The Supreme Court’s recent decision in Almendarez-Torres v. U.S., 118 S.Ct. 1219 (1998), which held that 8 U.S.C. § 1326(b)(2) does not define a separate crime but simply an enhanced penalty for violations of § 1326(a), does not mandate a different result. U.S. v. Stone, 139 F.3d 822 (11th Cir. 1998).
11th Circuit finds no prejudice from counsel’s failure to challenge D-meth sentence. (240) Defendant was convicted of four methamphetamine-related counts. In a § 2255 motion, defendant claimed his counsel had been ineffective for failing to challenge the court’s use of the D-methamphetamine guideline to fashion his sentence. The Eleventh Circuit rejected the claim since defendant could not show prejudice from his attorney’s performance. To show prejudice, defendant must show that he could establish that the methamphetamine he possessed and distributed was the L-type. However, based on the evidence in the case and statements from several circuit courts, the Sentencing Commission and other government agencies, there was no doubt that D-methamphetamine was involved here. L-methamphetamine is an inert form of methamphetamine with little or no physiological effects. It is rarely seen, is not made intentionally, and is utterly worthless. Defendant here distributed a form of methamphetamine that had street value. To reach a contrary conclusion would require a finding that defendant made a conscious decision to distribute a worthless substance. Reece v. U.S., 119 F.3d 1462 (11th Cir. 1997).
11th Circuit applies § 2D1.1 to drug conspiracy based on money laundering activity. (240) Defendant was convicted of racketeering, money laundering and a drug conspiracy. He argued that the court should have sentenced him for the drug conspiracy and racketeering counts using § 2S1.1, the money laundering guideline, instead of § 2D1.1, the drug guideline. He contended that since there is no guideline for defendants convicted of a drug conspiracy based solely on money laundering activity, he should have been sentenced under the most analogous offense guideline. The Eleventh Circuit upheld the application of § 2D1.1, finding it was expressly promulgated for his conviction of conspiring to violate 21 U.S.C. § 841. The Statutory Index for 21 U.S.C. § 846 refers to, among other sections, 2D1.1. Section 2D1.1 itself contains the word “conspiracy” in its heading. U.S. v. Tokars, 95 F.3d 1520 (11th Cir. 1996).
11th Circuit rules government proved substance contained D-meth rather than L-meth. (240) Defendant argued that the government failed to establish that the substance seized from his co-conspirators contained D-methamphetamine rather than L-methamphetamine. The Eleventh Circuit held that the government adequately proved the substance contained D-methamphetamine. On numerous occasions, government witnesses identified the seized substance as D-methamphetamine, and described the tests used to analyze the substance. Defendant did not offer any evidence to suggest that the substance did not contain D-methamphetamine or that the tests relied on by the government were incapable of distinguishing between the two isomers. The court refused to require a particular laboratory procedure to be performed to distinguish between the two substances. U.S. v. Trout, 68 F.3d 1276 (11th Cir. 1995).
11th Circuit refuses to retroactively apply amendment that cocaine base means crack. (240) Defendant was arrested at the airport carrying placemats laden with cocaine base. The cocaine base in the mats was not crack and was not a smokeable form of cocaine. The district court, applying circuit case law, found that the substance was cocaine base under § 2D1.1(c). After defendant was sentenced, §2D1.1(c) was amended effective November 1, 1993, to state that “cocaine base” means “crack.” The Eleventh Circuit refused to apply the amendment retroactively. This was not a clarifying amendment to the commentary, but an amendment to the text of the guidelines. The list of amendments to be applied retroactively appears in § 1B1.10(d). Because this amendment is not listed in that section, it cannot be given retroactive effect. U.S. v. Camacho, 40 F.3d 349 (11th Cir. 1994), overruling on other grounds recognized by U.S. v. York, 428 F.3d 1325 (11th Cir. 2005).
11th Circuit finds defendant who moved and set up competing business did not withdraw from conspiracy. (240) Defendant contended that he withdrew from a drug conspiracy before the effective date of the guidelines. He claimed to have moved to another state and set up his own competing drug business. The Eleventh Circuit held that setting up a competing business does not constitute withdrawal from a conspiracy. Rather, defendant must show that he (1) took affirmative steps to defeat the objectives of the conspiracy, and (2) made a reasonable effort to communicate these acts to his co-conspirators or disclosed the scheme to law enforcement authorities. Defendant’s actions in setting up a competing business did not constitute an effort to thwart the objectives of the conspiracy. Mere cessation of criminal activity is insufficient to demonstrate withdrawal. U.S. v. Young, 39 F.3d 1561 (11th Cir. 1994).
11th Circuit applies guideline definition of cocaine base to mandatory minimum. (240) 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 holds that “pure methamphetamine” refers to relative purity of compound. (240) There are three different methamphetamine forms: L-methamphetamine, which is inert with little or no physiological effects; D-methamphetamine, which has the active physiological effects; and DL-methamphetamine, which is composed of 50 percent L-methamphetamine and 50 percent D-methamphetamine. The 11th Circuit rejected the district court’s conclusion that “pure methamphetamine,” as used in section 2D1.1(c), refers only to D-methamphetamine. Instead, it held that “pure methamphetamine” refers to the relative purity of any methamphetamine compound. Thus, 100 percent pure D-methamphetamine, like 100 percent pure DL-methamphetamine, would constitute 100 percent “pure methamphetamine.” It is only because the Commission distinguished L-methamphetamine from “methamphetamine” and “pure methamphetamine” that 100 percent L-methamphetamine would not likewise constitute 100 percent “pure methamphetamine.” Senior Judge Bright dissented. U.S. v. Carroll, 6 F.3d 735 (11th Cir. 1993).
11th Circuit rejects sentence based upon D-methamphetamine where experts did not specify type of methamphetamine involved. (240) The sentencing guidelines recognize two different forms of methamphetamine. In U.S. v. Patrick, 960 F.2d 950 (11th Cir. 1992), the 11th Circuit upheld a sentence based upon the more potent D-methamphetamine, rather than the less potent L-methamphetamine, even though experts at trial did not specify the type of methamphetamine involved. On rehearing, the 11th Circuit reversed itself and held that the determination that D-methamphetamine was involved was erroneous. There was no evidence presented to suggest that the drug involved was the more potent D-methamphetamine, and such evidence could not have been adduced without performing more sophisticated testing. The fact that the guidelines use the term “methamphetamine” to refer to D- methamphetamine does not mean that the term, when used in legal proceedings, means D-methamphetamine. U.S. v. Patrick, 983 F.2d 206 (11th Cir. 1993).
11th Circuit upholds application of section 2D1.1 to possession of listed chemical offense. (240) Defendant pled guilty to possessing or distributing a listed chemical (phenylacetic acid) with knowledge that it would be used to manufacture a controlled substance (methamphetamine). He argued for the first time on appeal that he should have been sentenced under section 2D1.11, not section 2D1.1. The 11th Circuit found no plain error in the application of section 2D1.1. First, the sentence was not manifestly unjust. Second, section 2D1.11 did not become effective until a year after defendant’s sentencing date. Third, in U.S. v. Hyde, 977 F.2d 1436 (11th Cir. 1992), the appellate court affirmed the application of section 2D1.1 to a similar offense by calculating the amount of methamphetamine that could have been produced from the phenylacetic acid that the defendant possessed. U.S. v. Neely, 979 F.2d 1522 (11th Cir. 1992).
11th Circuit reverses enhancement of offense level for defendant’s role in continuing criminal enterprise. (240) Four defendants were convicted of engaging in a continuing criminal enterprise and sentenced under guideline § 2D1.5. The 11th Circuit agreed with defendants that the district court had improperly enhanced their offense levels for their roles in the offense. Guideline § 2D1.5 expressly prohibits such an enhancement because this guideline already reflects an adjustment for role in the offense. U.S. v. Nixon, 918 F.2d 895 (11th Cir. 1990).
11th Circuit holds that amount of drugs possessed is grounds for upward departure in simple possession cases. (240) A drug trafficker pled guilty to simple possession. The district court departed upward from the guideline range 11 months based upon the large quantity of narcotics the defendant possessed. Unlike most drug offenses, the guidelines for possession (§ 2D2.1(a)(2)) do not consider the quantity possessed. Thus, the district court did not err in deciding an upward departure was warranted based upon the quantity of drugs. U.S. v. Crawford, 883 F.2d 963 (11th Cir. 1989).
D.C. Circuit finds adequate reasons for gang member’s above-guideline sentence. (240) Defendant was a member of the M Street Crew, which operated a massive drug ring in Washington, D.C. The district court calculated an advisory guideline range of 188-235 months, and sentenced him to 264 months. The D.C. Circuit affirmed, ruling that the district court provided adequate reasons for the above-Guidelines sentence. Although the court did consider defendant’s history of drug abuse as one factor in its sentencing decision, the record did not support defendant’s claim that the court “relied primarily” on that history of abuse in imposing an upward variance. The court mentioned a number of other factors, especially the extent of defendant’s involvement in the overall conspiracy. Defendant also failed to demonstrate that his sentence was substantively unreasonable. The evidence of his participation in the conspiracy was substantial. As was evident from a comparison of his sentence with the sentences imposed on the other defendants, the district court accounted for the level and significance of defendant’s participation in the conspiracy. U.S. v. Wilson, 605 F.3d 985 (D.C. Cir. 2010).
D.C. Circuit rules defendant ineligible for “reverse sting” departure. (240) An undercover agent offered to sell defendant five kilos of cocaine for $100,000. Defendant was only able to come up with about $20,000, but said that he still wanted to buy three kilos. The agent agreed to sell him one kilo for $20,000 cash, and to front him the second. DEA agents arrested defendant as he left the hotel room with the two kilos. Defendant alleged that his counsel was ineffective for failing to offer expert testimony in support of his request for a “reverse sting” departure under Note 14 to § 2D1.1. The D.C. Circuit found no prejudice, since the reverse sting departure was not applicable to defendant. A reverse sting departure is proper where the government, in setting overly generous price terms, induces a defendant to purchase more drugs than he otherwise could afford and that difference affects the defendant’s sentence. Here, however, drug quantity bore no relation to the defendant’s offense level (beyond setting the floor at 500 grams). Defendant was sentenced as a career offender. Drug quantity here had no effect on defendant’s position in the career offender table. U.S. v. Goodwin, 594 F.3d 1 (D.C. Cir. 2010).
D.C. Circuit rejects ineffective assistance claim where court previously rejected similar argument. (240) Defendant argued that his attorney was ineffective for failing to seek a “lesser harms” downward departure under § 5K2.11. He claimed that counsel could have presented evidence to support his claim that he suffered from excruciating pain and sold drugs to support an addiction to heroin, which developed after he was treated extensively with opiates as a result of severe burns. The district court expressly acknowledged the possibility that defendant’s pain drove him to addiction, but nonetheless found that his long history of drug dealing outweighed that mitigating factor. Given this, the D.C. Circuit rejected the ineffective assistance claim. Defendant failed to show a reasonable probability that the district court, having rejected the predicate of his lesser harms argument, would have departed had counsel formally invoked § 5K2.11. U.S. v. Goodwin, 594 F.3d 1 (D.C. Cir. 2010).
D.C. Circuit requires judge to find that defendant participated in underlying the drug crime for §2D1.8(a)(1) increase to apply. (240) Defendant pled guilty to maintaining a crack house and to being a felon in possession of a firearm. Guideline §2D1.8(a)(1) imposes a substantially higher base offense level for persons convicted of maintaining a drug establishment who are also found to have participated in the underlying drug crime. However, the district court made no findings on defendant’s participation in the underlying drug offense. The PSR contained no factual findings on defendant’s participation in the underlying offense, and the judge offered no findings on this crucial issue. Defendant’s participation could not be inferred from the sparse record on appeal. Under these circumstances, the D.C. Circuit remanded to allow the district court to determine in the first instance whether the government carried its burden at sentencing and proved participation by a preponderance of the evidence. In re Sealed Case, 552 F.3d 841 (D.C. 2009).
D.C. Circuit upholds refusal to depart downward in reverse sting case. (240) Defendant was held responsible for two kilograms of cocaine that his co-conspirators purchased from an undercover agent. He argued that he should have received a downward departure based on the “reverse sting” provision of note 15 to § 2D1.1. This authorizes a downward departure where the government sets a price for the controlled substance that is substantially below its market value. The D.C. Circuit upheld the refusal to depart since the court recognized its authority to depart and did not make a clearly erroneous factual finding. The court found that even if note 15 were applicable to defendant, it would not make a difference in the two kilograms of cocaine for which he was accountable. Thus, the court must have found either that the undercover agent did not set the price at an artificially low level or that defendant did not buy more than he otherwise would have because of the depressed price. Neither of these findings would have been clearly erroneous. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit holds sentence for crack cocaine was not plain error. (240) Defendant argued for the first time on appeal that the government failed to prove that the 379.94 grams of cocaine base involved in his offense was crack cocaine. The D.C. Circuit found no plain error. There was no clear or obvious error, therefore the court did not address the remaining requirements of plain error. There was only a very remote possibility of verbal confusion. Although defendant responded to the PSR with a number of objections, he did not raise doubts that he had been dealing in crack. Nothing at the plea hearing suggested that the parties used “cocaine base” to mean anything but crack cocaine. Defendant pled guilty to distributing “five grams or more of cocaine base or crack.” It was clear that the judge was using “crack” as a modifier of, not as an alternative to, cocaine base. The substance was a white rock-like substance, the form that crack typically takes. U.S. v. Washington, 115 F.3d 1008 (D.C. Cir. 1997).
D.C. Circuit rejects sentence outside guideline range. (240) Defendant was convicted of conspiring to distribute crack (count one), aiding the distribution of crack (count two) and aiding the distribution of crack near a school (count three). The district court sentenced defendant to 175 months’ imprisonment on each count. The parties agreed, and the D.C. Circuit held, that the district court miscalculated defendant’s sentence, since the sentencing range for each of the first two counts was 121-151 months. Therefore, the 175 month sentence imposed for counts one and two was outside the permissible guideline range. Moreover, defendant could not be convicted of both distribution and distribution near a school under the same facts. U.S. v. Edmonds, 69 F.3d 1172 (D.C. Cir. 1995).
D.C. Circuit suggests departure where defendant does not intend to sell drugs near school. (240) Defendant was convicted of possessing drugs with intent to distribute within 1,000 feet of a school in violation of 21 U.S.C. section 860(a). He argued that the evidence was insufficient to establish that he had intended to distribute the drugs within 1,000 feet of the school. The D.C. Circuit held that the intended place of distribution is irrelevant under the statute; all that is required is proof that defendant intended to distribute the drugs somewhere, combined with proof that the drugs were possessed within 1,000 feet of a school. The court suggested, however, that a downward departure might be appropriate in an unusual case — for example, where a defendant possessed drugs while on a train or subway that passes within 1,000 feet of a school. U.S. v. McDonald, 991 F.2d 866 (D.C. Cir. 1993).
D.C. Circuit affirms basing offense level on narcotics charges, rather than CCE count. (240) Defendants contended that the district court erroneously determined their offense level on the basis of the narcotics counts rather than the CCE count, since the government prosecuted the case on the theory that the principal offense committed was the CCE and not the drug conspiracy that formed the predicate offense. The D.C. Circuit found no merit to this argument. Only one of the defendants was charged and convicted under the CCE statute, and therefore only he would be entitled to claim that the proper base offense level was based upon the CCE count. When a defendant’s drug related convictions are grouped together under guideline section 3D1.2, the guidelines specifically require the use of the highest offense level among those available. Thus, any error in the choice of an offense level is always to the defendant’s advantage, because the guidelines require the imposition of the highest available offense level. U.S. v. Harris, 959 F.2d 246 (D.C. Cir. 1992), abrogated on other grounds by U.S. v. Stewart, 246 F.3d 728 (D.C. Cir. 2001).
Maryland District Court rules that defendant was not entitled to a special verdict as to quantity of narcotics or extent of role in conspiracy in order to determine base offense level under guidelines. (240) Defendant asked the court to submit special interrogatories to the jury as to whether her role in the conspiracy continued beyond the effective date of the guidelines and the quantity of drugs involved. The district judge ruled the special verdicts are not provided for in F.R.Cr.P. 31 unless criminal forfeiture is involved. Furthermore, a defendant’s Sixth Amendment right to a jury trial only entitles her to a jury determination of issues pertaining to guilt or innocence, not punishment. To give the jury the power to determine issues pertaining to sentencing would entirely eliminate the judicial sentencing function, which has already been largely curtailed by the guidelines. U.S. v. Sheffer, 700 F.Supp. 292 (D.Md. 1988).
Tennessee District Court rules that quantity of drugs determines base offense level. (240) Guideline § 1B1.2 provides that the court shall apply the guideline most applicable to the offense of conviction. Thus the quantity of drugs in the count to which the defendant pleaded guilty established the base offense level for sentencing under § 2D1.1. U.S. v. Smith, 686 F.Supp. 1246 (W.D. Tenn. 1988).
Commission reduces all drug penalties by two levels. (240) On a unanimous vote, the Commission reduced by two levels the base offense levels in the Drug Quantity Tables in §§ 2D1.1 and 2D1.11 for all drug types. The Commission estimated that approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average. Offenders eligible for the five- and ten-year mandatory minimum penalties would receive base offense levels 24 and 30, (a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of 26 and 32 (63 to 78 months and 121 to 151, respectively). The Commission also voted to prepare a study of the impact of making the drug amendment retroactive and will consider the issue as required by statute. Proposed Amendment 3, effective Nov. 1, 2014.
Commission increases penalties for counterfeit drugs and military parts. (240) Two separate laws recently amended 18 U.S.C.§ 2320. In the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112–81 (enacted December 31, 2011) Congress increased the penalties for counterfeit military goods and services. In response, the Commission amended §2B5.3 to provide a 2-level enhancement at (b)(7) and a minimum offense level of 14 for offenses involving counterfeit military goods or services. The Commission also responded to changes made by section 717 of the Food and Drug Administration Safety and Innovation Act, Pub. L. 112–144 (enacted July 9, 2012) by adding a 2-level increase at §2B5.3(b)(5) for offenses involving a counterfeit drug. An upward departure was authorized if the offense resulted in death or serious bodily injury. Finally, the Commission referenced to guideline §2N1.1 the new offense in 21 U.S.C. §333(b)(7) for intentionally providing adulterated drugs. Amendment 773, effective Nov. 1, 2013.
Commission extends “safety valve” to precursor chemical offenses. (240) The Commission added a new specific offense characteristic at subsection (b)(6) of §2D1.11 (precursor chemicals) to provide a two-level decrease if the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of §5C1.2 (the “safety valve”). The new specific provision parallels the existing two-level decrease for drug offenses in subsection (b)(16) of §2D1.1. The amendment also adds new commentary relating to the “safety valve” reduction in §2D1.11 that is consistent with the commentary relating to the “safety valve” reduction in §2D1.1. See USSG §2D1.1, comment. (n. 21). Amendment 763, effective Nov. 1, 2012.
Commission encourages abuse of trust increase for improper disposal of drugs. (240) In response to amendments to 21 U.S.C. § 822, the Commission amended Application Note 8 to § 2D1.1 to provide that an adjustment under § 3B1.3 (Abuse of Position of Trust or Use of Special Skill) ordinarily would apply in a case in which the defendant is convicted of a drug offense resulting from the authorization of the defendant to receive scheduled substances from an ultimate user or long-term care facility. The amendment reflects the likelihood that in such a case the offender abused a position of trust (i.e., the authority provided by 21 U.S.C. § 822 to receive controlled substances for the purpose of disposal) to facilitate the commission or concealment of the offense. Amendment 751, effective November 1, 2011.
Commission increases penalties for hydrocodone and Schedule III drugs where death or injury results. (240) In response to the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, Pub. L. 110–425, the Commission amended §2D1.1 to provide two new alternative base offense levels at subsections (a)(3) and (a)(4) for offenses involving Schedule III controlled substances in which death or injury results, that are comparable to the alternative base offense levels at subsections (a)(1) and (a)(2) for offenses involving Schedule I and II controlled substances in which death or injury results. The alternative base offense levels are set at level 30 if the defendant committed the offense after one or more prior convictions for a similar offense and level 26 otherwise. Also, the Commission modified the Drug Quantity Table in §2D1.1 to increase the maximum base offense level for offenses involving Schedule III hydrocodone from level 20 to level 30. Finally, the amendment added two new Internet drug offenses, 21 U.S.C. § 841(h), and 21 U.S.C. § 843(c)(2)(A), to the Statutory Index to the Guidelines. Amendment 727, effective November 1, 2009.
Commission adds penalties for smuggling drugs in submersible vessels. (240) The Drug Trafficking Vessel Interdiction Act of 2008, Pub. L. 110–407, created a new offense at 18 U.S.C. § 2285 making it unlawful to operate an unflagged submersible or semi-submersible vessel in international waters with the intent to evade detection. In response, the Commission amended §2D1.1 by expanding the scope of the specific offense characteristic at subsection (b)(2) to apply if a submersible or semi-submersible vessel was used in a drug importation offense. The Commission also created a new guideline at §2X7.2 (Submersible and Semi-Submersible Vessels) for the new offense at 18 U.S.C. § 2285, with a base offense level of 26 and a tiered specific offense characteristic and upward departure provisions to address certain aggravating circumstances listed by Congress. Amendment 728, effective November 1, 2009.
Commission makes retroactive the 2-level reduction for crack cocaine. (240) Effective November 1, 2007, Amendment 706 reduced the crack cocaine guidelines by two levels, based on the Commission’s finding that the existing guidelines were two levels higher than necessary to incorporate the existing statutory minimum sentences. The Commission estimated that this reduction would affect almost 70% of all crack cocaine offenses sentenced under the guidelines and would reduce average prison sentences for crack cocaine offenses from 121 to 106 months. At its December 11, 2007 meeting, the Commission made this amendment retroactive by adding it to the list of retroactive amendments in §1B1.10, but specified that it would not take effect until March 3, 2008. Under §1B1.10 and 18 U.S.C. §3582(c)(2), a defendant who was sentenced under the old guidelines may file a motion in the district court to have his sentence reduced. The judge must then consider the factors specified in §1B1.10 and 18 U.S.C. §3582 (c)(2) in deciding whether to reduce the sentence. Amendment 712, effective March 3, 2008.
Commission adopts guidelines for narco-terrorism and border tunnels. (240) The USA PATRIOT Reauthorization Act created a new narco-terrorism offense at 21 U.S.C. § 960a. This new offense prohibits committing a drug offense while intending to provide anything of pecuniary value to any organization that has engaged in terrorist activity. To implement the statute, the Commission created a new guideline at § 2D1.14 (Narco-Terrorism) The base offense level is the offense level determined under § 2D1.1 for the underlying offense, except that the “mitigating role cap” in § 2D1.1(a)(3)(A) and (B) and the two-level “safety valve” reduction do not apply. The guideline also provides a six-level increase if the adjustment in § 3A1.4 (Terrorism) does not apply. The Commission also responded to 18 U.S.C. § 554 which creates new offenses regarding the construction of border tunnels, by adopting a new guideline at § 2X7.1 (Border Tunnels and Subterranean Passages). The new guideline provides that a conviction under 18 U.S.C. § 554(a) receives a base offense level 16. A conviction under 18 U.S.C. § 554(c) will receive a four-level increase over the offense level applicable to the underlying smuggling offense. A conviction under 18 U.S.C. § 554(b) receives a base offense level of 8. In addition, the Commission amended a number of other guidelines to address other new offenses created by the PATRIOT Reauthorization Act. Amendment 700, effective November 1, 2007.
Commission increases penalties for meth and date-rape drugs. (240) Section 731 of the PATRIOT Reauthorization Act created a new offense at 21 U.S.C. § 865, with a mandatory consecutive sentence of 15 years for smuggling methamphetamine or its precursor chemicals into the United States by a person enrolled in, or acting on behalf of someone or some entity enrolled in, any dedicated commuter lane, alternative or accelerated inspection system, or other facilitated entry program administered by the federal government for use in entering the United States. In response, the Commission referred the new offense to both §§ 2D1.1 and 2D1.11 and provided a new two-level enhancement in §§ 2D1.1(b)(5) and 2D1.11(b)(5) if the defendant is convicted under 21 U.S.C. § 865. Also, in response to a new offense in 21 U.S.C. § 841(g) (Internet Sales of Date Rape Drugs), the Commission provided a new two-level enhancement in § 2D1.1(b)(9) that is tailored to focus on the more serious conduct covered by the new statute. The Commission also eliminated the maximum base offense level of level 20 for ketamine offenses under 21 U.S.C. § 841(g). The amendment also provides a marihuana equivalency in Application Note 10 for ketamine (1 unit of ketamine = 1 gram of marihuana). In addition, the amendment adds to § 2D1.1, Application Note 10, a new drug equivalency for 1,4-butanediol (BD) and gamma butyrolactone (GBL), both of which are included in the definition of date rape drugs under 21 U.S.C. § 841(g). The amendment also addresses the new offense in 21 U.S.C. § 860a (Consecutive sentence for manufacturing or distributing, or possessing with intent to manufacture or distribute, methamphetamine on premises where children are present or reside). Amendment 705, effective November 1, 2007.
Commission modifies mitigating role cap for drug defendants. (240) The November, 2003 amendments “capped” a drug defendant’s offense level at 30 if he played a minor role in the offense and met certain other requirements. To address proportionality concerns arising from the “mitigating role cap,” the new amendment modifies § 2D1.1(a)(3) to provide a graduated reduction for offenders whose quantity level under § 2D1.1(c) results in a base offense level greater than level 30 and who qualify for a mitigating role adjustment under § 3B1.2. Specifically, the amendment provides a two-level reduction if the defendant receives an adjustment under § 3B1.2 and the base offense level determined at the Drug Quantity Table in § 2D1.1 is level 32. If the base offense level determined at § 2D1.1(c) is level 34 or 36, and the defendant receives an adjustment under § 3B1.2, a three-level reduction is provided. A four-level reduction is provided if the defendant receives an adjustment under § 3B1.2 and the base offense level under § 2D1.1(c) is level 38. This amendment also provides an identical reduction in § 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy). Amendment 668, effective November 1, 2004.
Commission clarifies Application Note 12 regarding agreements to sell a specific quantity of drugs. (240) Resolving a conflict in the circuits over the interpretation of the last sentence in Application Note 12 of § 2D1.1, the Commission amended the note to make it clear that the court should exclude from the offense level the amount of the controlled substance that defendant did not intend to provide or purchase, or was not reasonably capable of purchasing, regardless of whether the defendant agreed to be the seller or the buyer of the controlled substance. Amendment 667, effective November 1, 2004.
Commission increases penalties for GHB, analogues, and mass marketing of drugs or listed chemicals. (240) Implementing a directive in the Protect Act, the Commission provided an approximate five-year term (base offense level 26) for distribution of three gallons of GHB, a “date rape” drug, and an approximate ten-year penalty (offense level 32) for distributing thirty gallons of GHB. In addition, Application Note 5 to § 2D1.1 was amended to provide a uniform mechanism for determining sentences in cases involving analogues of controlled substances or substances not specifically referenced in the guideline. The Commission also provided a two-level enhancement in § 2D1.1, 2D1.11 and §2D1.12 for mass marketing of a controlled substance, listed chemical, or prohibited equipment through the use of an interactive computer service. Amendment 667, effective November 1, 2004.
Commission adds red phosphorus to the Chemical Quantity Table. (240) In response to a recent classification of red phosphorus as a List I chemical, the Commission added red phosphorus to the Chemical Quantity Table in § 2D1.11. Amendment 661, effective November 1, 2003.
Commission “caps” base offense level at 30 for drug defendants who receive mitigating role adjustment. (240) Overcoming opposition in Congress, the Commission modified § 2D1.1(a) (3) to provide a maximum base offense level of 30 if the defendant receives a mitigating role adjustment under § 3B1.2. In addition, a new Application Note 6 to the mitigating role guideline, § 3B1.2, provides that the defendant whose base offense level is reduced by § 2D1.1(a)(3) “shall” also receive the appropriate role reduction under § 3B1.2. Moreover, a defendant who qualifies for the “safety valve” under 5C1.2 will be free from statutory mandatory minimum sentence requirements, and will receive an additional 2-level reduction under § 2D1.1(b)(6). However, the Commission pointed out in its “reasons for amendment” that aggravating adjustments such as for using a gun “may increase the offense level above level 30,” adding that this role cap “is expected to apply narrowly, affecting approximately six percent of all drug trafficking offenders.” Amendment 640, effective November 1, 2002.
Commission increases sentences for managing a “crack house” or “rave.” (240) Responding to concerns that § 2D1.8 did not adequately punish defendants convicted of managing drug establishments under 21 U.S.C. § 856, including “crack houses” and dance clubs known as “raves,” the Commission increased the maximum bass offense level in § 2D1.8 from level 16 to level 26. Amendment 640, effective November 1, 2002.
Commission increases penalties for drug “ecstasy” effective May 1, 2001. (240) After reviewing public comment on proposed guidelines to implement legislation increasing penalties for certain drugs, including the party drug, “ecstasy,” the Sentencing Commission on March 20, 2001 adopted an amendment sharply increasing the guidelines for selling ecstasy, and established new guidelines for List I chemicals that are used to manufacture methamphetamine. The new ecstasy penalties roughly triple the guideline range for trafficking in ecstasy, resulting in more severe sentences than for powder cocaine. The penalty for distributing 200 grams of ecstasy (about 800 pills) will increase from 15 months to five years; while the penalty for distributing 8000 pills will increase from 41 months to 120 months. The amendments were promulgated as emergency amendments, effective May 1, 2001.
Commission proposes to require mandatory restitution for amphetamine and methamphetamine offenses. (240) In the Methamphetamine Anti-Proliferation Act of 2000, § 3613 of Pub. L. 106-310, Congress amended 21 U.S.C. § 853(q) to provide mandatory restitution for offenses that involve the manufacture of methamphetamine. The proposed amendment amends § 5E1.1 to include a reference to § 853(q) in the guideline provision regarding mandatory restitution. 2001 Proposed Amendment 8.
Commission proposes to increase penalties for the drug “Ecstasy.” (240) The Ecstasy Anti-Proliferation Act of 2000, § 3664 of Pub. L. 106-310, instructs the Commission, under emergency amendment authority, to provide increased penalties for offenses involving Ecstasy. The directive specifically requires the Commission to increase the base offense level for MDMA, MDA, MDEA, PMA, and any other controlled substance that is marketed as Ecstasy and that has either a chemical structure similar to MDMA or an effect on the central nervous system substantially similar to or greater than MDMA. The proposed amendment addresses the directive by amending the Drug Equivalency Table in § 2D1.1, Application Note 10, to increase the marijuana equivalencies for the specified controlled substances to make the penalties comparable to other drugs of abuse, such as powder cocaine, methamphetamine mixture and mescaline. 2001 Proposed Amendment 1.
Commission proposes increase in amphetamine penalties. (240) The Methamphetamine Anti-Proliferation Act of 2000, § 3611 of Pub. L. 106-310, directs the Commission to provide, under emergency amendment authority, increased guideline penalties for amphetamine, so that those penalties are comparable to the base offense level for methamphetamine. The Commission’s proposed amendment provides two options for implementing the directive. Both options treat amphetamine and methamphetamine identically, at a 1:1 ratio, but differ in how they implement the directive. Option 1 amends the Drug Equivalency Table of § 2D1.1, while Option 2 amends § 2D1.1 specifically to include amphetamine in the Drug Quantity Table. 2001 Proposed Amendment 2.
Commission proposes to require mandatory restitution for amphetamine and methamphetamine offenses. (240) In the Methamphetamine Anti-Proliferation Act of 2000, § 3613 of Pub. L. 106-310, Congress amended 21 U.S.C. § 853(q) to provide mandatory restitution for offenses that involve the manufacture of methamphetamine. The proposed amendment amends § 5E1.1 to include a reference to § 853(q) in the guideline provision regarding mandatory restitution. 2001 Proposed Amendment 8.
Commission increases guidelines for manufacturing amphetamine and methamphetamine. (240) Effective Dec. 16, 2000, the Sentencing Commission amended guideline § 2D1.1 to provide a three-level increase or “floor” of offense level 27 if the offense involved the manufacture of amphetamine or methamphetamine and created a substantial risk of harm to human life or the environment. The amendment also provides a 6-level increase if the risk was to the life of a minor or an incompetent. Moreover, guideline § 2D1.10 was amended to provide even greater guideline increases where the defendant is convicted under 21 U.S.C. § 858 of endangering human life while illegally manufacturing amphetamine or methamphetamine. The amendments also apply to attempts and conspiracies. A new Application Note 21 to § 2D1.1 and Application Note 1 to § 2D1.10 set out the factors to be considered in applying these increases, and also define “incompetent” and “minor.” The amendments were adopted in response to directives in the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. No. 106-310, Title 36, § 3612. The new amendment also corrects a typographical error in the Drug Quantity Table, changing the quantity for methamphetamine (actual) from kilograms to grams at offense level 36 in the Table. Amendment 608, effective December 16, 2000.
Commission increases methamphetamine penalties. (240) In the Methamphetamine Trafficking Penalty Enhancement Act of 1998, Congress changed the quantity of methamphetamine necessary to trigger mandatory minimum penalties. In response, the Commission amended the Drug Quantity Table to conform the methamphetamine (actual) penalties to the new mandatory minimums established in the Act. No changes were made to the methamphetamine (mixture) penalties. Amendment No. 594, effective November 1, 2000.
Commission corrects typo in Chemical Quantity Table and adds increase for environmental damage. (240) The Commission corrected a typographical error in the Chemical Quantity Table in § 2D1.11 in the listed chemicals regarding quantities of Isosafrole and Safrole by changing those quantities from grams to kilograms. In addition, the amendment corrected an omission made during prior Commission deliberations on the Comprehensive Methamphetamine Control Act of 1996 by adding an enhancement in § 2D1.11 and § 2D1.12 for environmental damage. Amendment 605, effective November 1, 2000.
Commission resolves conflict over drug sales in protected location or to a protected individual. (240) A new amendment resolves a circuit conflict over whether the enhancements in § 2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals) can be based on relevant conduct or only when the defendant is actually convicted of drug sales in a protected location or to a protected individual. The amendment clarifies that the courts must apply the offense guideline for the statute of conviction listed in the Statutory Index unless the case involves a stipulation to a more serious offense or additional offenses as set forth in § 1B1.2(a). The court may not look to the defendant’s relevant conduct in determining the offense guideline to be used. Amendment No. 591, effective November 1, 2000.
Commission recommends reducing 100-1 ratio of crack and powder cocaine. (240) In a report submitted to Congress on April 29, 1997, the Sentencing Commission unanimously reiterated its previous finding that the 100-1 quantity ratio between crack and powder cocaine “cannot be justified.” The Commission recommended that Congress lower the mandatory minimum threshold for powder cocaine to between 125 and 275 grams and that it raise the threshold for crack to between 25 and 75 grams. This would result in a quantity ratio of 15:1 if Congress adopted the highest figure, and less than 2:1 if it chose the lowest. The complete report, including Commissioner Gelacak’s separate statement, is available on the Commission’s internet homepage, www.ussc.gov, and in the BNA Criminal Law Reporter at 61 CrL 2073 (May 7, 1997).
Articles update crack-powder ratio developments. (240) The Sentencing Commission sent a second report on cocaine to Congress in April, 1997, stating that “a 100-to-1 quantity ratio cannot be justified.” The new report recommended reducing the quantity of powder and necessary to trigger a mandatory minimum sentence while increasing the quantity of crack. Then in July, 1997, Attorney General Janet Reno and “Drug Czar” Barry McCaffrey recommended that “the five year mandatory minimum threshold for crack set at 25 grams and the corresponding threshold for powder set at 250 grams.” In September, 1997, twenty-seven federal judges, each of whom previously served as U.S. Attorney, sent a letter to the House and Senate Judiciary Committees “strongly recommend[ing] that the disparity between the penalties for crack and powder cocaine be eliminated, or, at a minimum, drastically reduced.” These developments, and the ongoing policy debate are discussed in articles by Carol Bergman, former Director of Legislative Affairs for the Office of National Drug Control Policy, Nkechi Taifa, Director of the Public Service Program at Howard University, and Jeffrey Pokorak, Director of the Criminal Justice Clinic at St Mary’s University Law School in San Antonio. Douglas A. Berman, Rethinking the Crack/ Cocaine Ratio, 10 Fed. Sent. Rptr. 179 (Jan./Feb. 1998).
Commission makes retroactive amendment eliminating top two levels of Drug Table. (240) On September 6, 1995, the Sentencing Commission made retroactive Amendment 505 of the 1994 amendments. (See Appendix C of the 1994 Guidelines Manual.) This amendment eliminated the top two levels of the Drug Table, capping the Table at level 38. The Commission’s decision means that any defendant whose sentence was based on former levels 40 and 42 may apply to the sentencing court for a reduction in sentence pursuant to 18 U.S.C. 3582(c) and guideline § 1B1.10.
Commission provides increase for distributing drugs in prison (240) In Amendment 514, effective November 1, 1995, the Commission added a new subsection to §2D1.1(b) to provide a two level increase if the object was to distribute drugs in prison. The amendment also provides a cross-reference to 2P1.2 to provide an enhancement for simple possession of drugs in prison.
Commission provides two level decrease if defendant meets “safety valve” criteria. (240) In Amendment 515, effective November 1, 1995, the Commission added a new subsection to §2D1.1(b) to provide a two level decrease if the defendant meets the criteria set forth in the “safety valve,” guideline §5C1.2, and the offense level is level 26 or greater. The “safety valve” guideline itself, §5C1.2, permits a defendant to be sentenced under the guidelines without regard to any statutory minimum sentence.
Article vigorously supports drug laws but suggests that some sentences are too long. (240) In a lecture at the Washington and Lee University School of Law, Duke University Professor Paul Carrington discussed the legalization of drugs. Paul D. Carrington, The 21st Wisdom, 52 Wash. & Lee L. Rev. 333 (1995). In response, Frank Bowman, an Assistant U.S. Attorney and Visiting Professor at Washington and Lee Law School writes a vigorous defense of existing drug laws. After surveying the history of drugs and attempts to erradicate them, Bowman suggests that the “war on drugs” metaphor has distorted the debate. He argues that tough drug sentences are effective and necessary but “many drug sentences under the guidelines are of lengths far longer than necessary to achieve maximum deterrence.” Frank O. Bowman, III, Playing “21” with Narcotics Enforcement: A Response to Professor Carrington, 52 Wash. & Lee L. Rev., 937-986 (1995).
Commission deletes Levels 42 and 40 from Drug Quantity Table. (240) In a proposed amendment effective November 1, 1994, the Sentencing Commission deleted Level 42 and 40 from the Drug Quantity Table and amended Level 38 to include the quantities previously covered by those levels.
Commission permits departure if amount in “reverse sting” exceeds market price. (240) In an amendment effective November 1, 1993, a new note 17 was added to the Commentary to 2D1.1 for “reverse sting” operations. The court may depart downward if it finds that the government agent set a price for the controlled substance that was substantially below the market value, thereby causing the defendant to purchase an amount he otherwise could not have afforded.
Commission defines “cocaine base” as “crack.” (240) In an amendment effective November 1, 1993, the notes to section 2D1.1(c) were amended to provide that, for purposes of the guidelines, “cocaine base” means “crack.” The Commission explained that “[u]nder this amendment, forms of cocaine base other than crack (e.g., coca paste, an intermediate step in the processing of coca leaves into cocaine hydrochloride scientifically is a base form of cocaine, but it is not crack) will be treated as cocaine.”
Commission adds steroids to the Drug Quantity Table. (240) In response to the Crime Control Act of 1990, the Commission amended the Drug Quantity Table of section 2D1.1 effective November 1, 1991 to treat steroids as equivalent in seriousness to other schedule III controlled substances. “Ice” was also added to the Drug Quantity Table and was defined as a mixture or substance containing D-methamphetamine hydrochloride of at least 80% purity.