Drug Offenses

Earlier this year, the Drug Enforcement Administration issued an opinion contending that delta-8-THC-O and delta-9-THC-O (as distinguished from delta-8-THC and delta-9-THC) are illegal controlled substances. THC-O is another cannabinoid that can be derived from hemp and marijuana, like Delta-8-THC and Delta-9-THC, though it does not occur naturally in the plants. The DEA’s position reflects that, going forward, the DEA will likely scrutinize and oppose any hemp product that contains substances that do not naturally occur in hemp plants, even if the manufacturing process involves minimal intervention. There is a grey area between “extraction” and “synthesisation,” however, and there will almost certainly be litigation seeking to clarify where the DEA draws the line.

The Sixth Circuit vacated a defendant’s sentence that had been enhanced under 21 USC 841(b)(1)(A)(viii) based on his prior convictions. The Court held that the defendant’s meth conviction under Kentucky state law was not a “serious drug offense” or “serious drug felony” since his statute of conviction encompassed more than manufacturing conduct.

The Tenth Circuit reversed a district court’s denial of a defendant’s motion to suppress evidence obtained after his backpack was searched by agents following his arrest on a Greyhound bus. While the agents had probable cause to arrest him and seize the backpack, they did not have the authority to search the contents of his bag without a warrant, and the plain view doctrine did not apply where the agent was rummaging around the insides of the backpack “in an exploratory manner.”

On Tuesday, July 26, 2022, at 2:30PM, the U.S. Senate’s Subcommittee on Criminal Justice and Counterterrorism will hold a hearing on decriminalization of marijuana at the federal level. The witnesses include Dr. Malik Burnett, medical director of the Maryland Department of Health’s Center for Harm Reduction Services, Edward Jackson, the Chief of Annapolis Police Department, Weldon Angelos, a former inmate who received a pardon and is now the president of the Weldon Project, Steven Cook, a former Associate Deputy Attorney General under Jeff Sessions, and Alex Berenson, a former New York Times reporter known for his attempts to link marijuana to violent crime and mental illness.

The Seventh Circuit reversed a defendant’s conviction for drug conspiracy after holding that the defendant’s guilty plea was not voluntary. At the change of plea hearing, the defendant had disputed the quantity of drugs imputed to him in the Government’s factual basis and indicated he did not understand the elements of conspiracy as opposed to his substantive drug charge.

The Sixth Circuit affirmed a defendant’s sentence after the Government appealed the district court’s downward variance from the parties’ binding Rule 11(c)(1)(c) plea agreement. The Court held that Rule 11 gives the defendant the right to withdraw a 11(c)(1)(C) plea if the court rejects it but does not give the Government the right to withdraw its consent in the same scenario.

In a 6-3 opinion, the Supreme Court held that the prosecution in a “pill mill” case, where a doctor has been charged with unlawfully prescribing drugs, must prove beyond a reasonable doubt that the doctor was acting in a manner not authorized by the statute, i.e. that the doctor knew that their prescribing practices were unauthorized and was not acting in “good faith.” Previously, doctors could be convicted if their prescriptions were not for a legitimate purpose or otherwise not within the usual course of a professional medical practice–a standard resembling negligence.

The First Circuit reversed the convictions of two drug trafficking defendants based on prosecutorial misconduct. Among other things, the prosecutor had improperly appealed to the jury’s emotions regarding drug addiction in the community, improperly invited the jury to find the defendants guilty “by association,” and improperly vouched for the credibility of the prosecution and law enforcement. The Court concluded that the fourth prong of plain error review was met and that the district court erred in holding the strength of the evidence negated the error’s effect on the fairness, integrity, or reputation of judicial proceedings.

The Tenth Circuit vacated a defendant’s sentence after finding that the district court plainly erred in applying a role enhancement. The district court had enhanced the defendant’s guidelines for his money laundering offense based on relevant conduct for his drug offense, which was plainly not allowed under USSG 2S1.1 Application Note 2(C).

The Fifth Circuit affirmed a defendant’s sentence as a career offender based on his prior convictions. The defendant argued that his prior convictions did not count as “controlled substances” under the Guidelines since the Guidelines themselves do not include inchoate drug offenses like attempt and conspiracy–only the commentary to the Guidelines does. The Fifth Circuit deepened a circuit split by holding that the commentary are still binding on courts notwithstanding the Supreme Court’s recent decision in Kisor v. Wilkie.