Sixth Circuit

United States v. Michael Bourquin (6th Cir. July 2020)

The Sixth Circuit vacated a defendant's sentence based on insufficient evidence to support the district court's application of the four-level enhancement under U.S.S.G. 2A6.1(b)(4), which applies when the offense a substantial expenditure of funds to...otherwise respond to the offense. The government had not presented any specific accounting of its expenses in responding to the offense, nor had it distinguished its expenses as "substantial" as opposed to "typical."

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United States v. Calvin McReynolds (6th Cir. July 2020)

The Sixth Circuit vacated the defendant’s sentence for drug conspiracy and remanded it to the sentencing court after the court held the defendant accountable for a higher drug quantity than the jury did at trial, which the defendant argued violated his Sixth Amendment claim. The court held that the sentencing court did not adequately explain its reasoning, so it could not review the constitutionality of the defendant's claim.

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United States v. Wesley Scott Hamm (6th Cir. March 2020)

Drug Offenses/Elements – Sufficient evidence existed of a drug conspiracy, as opposed to a mere buyer-seller relationship, where the relationship was ongoing, the quantities involved were large, the transaction involved extensive planning, and the alleged seller taught the buyer how to mix the drugs for resale.

Drug Offenses/Death Counts – Sufficient evidence existed that the defendant’s drug distribution caused death where the defendant was part of a conspiracy to distribute carfentanil and the carfentanil’s combination with methamphetamine was the but-for cause of the victim’s overdose death.

Drug Offenses/Jury Instructions – A jury may not use a Pinkerton theory of liability to apply a death-or-injury sentencing enhancement under § 841(b)(1)(C).

Wesley Hamm, his wife, and his drug dealer, Shields, were indicted and charged with conspiracy to distribute controlled substances, including carfentanil, a substance “10,000 times stronger than morphine.” The three were charged after Hamm had purchased several grams of what he believed to be normal fentanyl from Shields and given some to another dealer, Myers, who in turn sold them to several other individuals who overdosed and, in some cases, died. Upon her arrest, Myers smuggled some of the substance into the jail, sold them to others who later overdosed, and ultimately committed suicide.

At trial, the jury convicted Hamm and Shields on conspiracy counts, two counts of distributing cafentanil, along with the sentencing enhancement for drug distribution resulting in death or serious bodily injury based on the overdoses discussed above.

On appeal, the Court first held that there was sufficient evidence of a conspiracy between Hamm, Shields, and Myers that rose above a mere “buyer-seller relationship” between Hamm and Shields. The Court noted that Hamm and Shields had an ongoing relationship, Hamm bought large quantities of substances from Shields, and Shields had previously taught Hamm how to mix the drugs for resale.

The Court also found there was sufficient evidence that the carfentanil that Hamm sold Shields was the but-for cause of the victim’s death. While the victim had also ingested methamphetamine before overdosing, experts for the government testified that the carfentanil made the combination deadly and, even without the meth, the carfentanil may have been enough on its own to cause death.

However, the Court found that the trial court committed reversible error by misstating the law in its jury instructions on the sentencing enhancement. The court had allowed the jury to apply the enhancement under the theory of Pinkerton liability, which allows members of a conspiracy to be held liable for foreseeable acts committed by other members.

However, the Court held on appeal, Pinkerton does not apply to death enhancements on substantive distribution counts. Rather, the death enhancement can only apply to defendants who were “part of the distribution chain” to the victim, as the Sixth Circuit held in United States v. Swiney, 203 F.3d 397 (6th. Cir. 2000). The Pinkerton theory of liability can be used to convict a defendant for substantive offenses related to the conspiracy, but it does not extend to allowing the jury to apply sentencing enhancements. The jury instructions alleging otherwise constitutes harmful, reversible error.

Appeal from the Eastern District of Kentucky

Opinion by Boggs, joined by Gibbons and Bush

Click here to read the opinion.

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