Drug Offenses

The Federal Docket

Fuad Said v. Attorney General (11th Cir. March 2022)

In an immigration appeal that likely affects federal criminal cases, the Eleventh Circuit held that a petitioner’s prior state law conviction for possession of marijuana did not constitute an offense involving a “controlled substance” as defined under federal law. The Court noted that the definition of marijuana under federal law, while still classifying marijuana as a controlled substance, excludes cannabis that falls under the definition of “hemp.” The petitioner’s conviction was under a Florida law that did not make that distinction and thus would ostensibly allow for a conviction based on possession of hemp. Accordingly, the petitioner’s prior offense was not a categorical match with the federal definition of a controlled substance offense.

United States v. Zayas (3rd Cir. April 2022)

The Third Circuit reversed a defendant’s conviction for distributing drugs within 1,000 feet of a playground under 21 USC 841, where the trial court did not instruct the jury in how to define a “playground” as defined under 21 USC 861(e)(1). The Court concluded that whether the facility is a playground is an element of the offense that must be proven beyond a reasonable doubt, joining the Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits.

United States v. Jonas (1st Cir. January 2022)

The First Circuit held that the district court did not err in enforcing a DEA subpoena to New Hampshire’s Prescription Drug Monitoring Program (PDMP), holding that 1) a subpoena does not amount to a lawsuit against a state and thus does not violate its sovereignty, and 2) people do not have a reasonable expectation of privacy in their prescription drug records given the closely regulated industry doctrine.

United States v. Sadler (6th Cir. January 2022)

The Sixth Circuit vacated a defendant’s sentence and remanded for new trial on the limited issue of whether he was within the “chain of distribution” of the drugs that resulted in the victims’ deaths.

United States v. Hope (4th Cir. March 2022)

The Fourth Circuit vacated a defendant’s sentence for possession of a firearm by a convicted felon after the district court improperly enhanced the defendant’s sentence under the ACCA. The district court did so based on finding that Hope’s prior South Carolina convictions for felony marijuana offenses were for a “controlled substance offense.” The Fourth Circuit reversed, holding that the South Carolina marijuana offenses did not meet the federal definition of “controlled substance offenses” because South Carolina’s definition of marijuana included hemp at the time, and hemp is not a “controlled substance offense” under federal law. Judge Thacker dissented based on his view that the error did not amount to “plain error.”

United States v. Nasir (3rd Cir. November 2021)

After bouncing between the Third Circuit and the Supreme Court, including after an en banc decision, the Third Circuit affirmed the defendant’s conviction but remanded for resentencing, reaffirming its holding that the defendant was not a career offender based on his prior state law convictions, since “the plain language of the guidelines does not include inchoate “attempt” drug crimes like the one that was used as one of Nasir’s predicate offenses.”

Flores-Rivera v. United States (1st Cir. October 2021)

The First Circuit reversed a district court’s order denying defendant’s motion to vacate sentence and conviction under 28 USC 2255. The defendant’s appellate attorney had been ineffective for failure to raise a Brady claim, raised by all of her co-defendants on appeal, based on the government’s failure to disclose material that would have undermined the government witnesses’ credibility. The First Circuit held that “any reasonable attorney would have known of the availability of the Brady claim since the co-defendants all raised it and since trial counsel had preserved the issue by raising it in his motion for new trial.”

United States v. Sincleair (5th Cir. October 2021)

The Fifth Circuit vacated a defendant’s sentence and remanded for resentencing based on the district court’s erroneous application of the firearm enhancement under USSG 2D1.1(b)(1). The PSR did not include sufficient facts to establish a temporal and spatial relationship between the defendant, the gun, and the drug trafficking activity. The defendant was not shown to have any connection to or knowledge of the gun, and the district court failed to make a record of what its rationale may have been supporting the enhancement.

United States v. Vizcara-Millan (7th Cir. September 2021)

The Seventh Circuit reversed a defendant’s drug conspiracy conviction and substantive conviction for distributing drugs. The Court held that the evidence equally supported a finding that the defendant was in a buyer-seller relationship with a DTO rather than a co-conspirator. The Court also held that there was insufficient evidence that the defendant constructively possessed meth found at his acquaintance’s house.

United States v. Latecia Watkins (11th Cir. September 2021)

On remand from the Eleventh Circuit’s en banc holding, the Court held that the district court erred in suppressing evidence where the government proved by a preponderance of the evidence that the incriminating evidence would have been discussed through lawful means despite the violation of the defendant’s rights. The agents had been contemplating a knock and talk, which would have revealed to them the incriminating drug evidence, and it was not controlling that they had discussed this tactic after the constitutional violation.

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