Drug Offenses

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.

The Ninth Circuit held that delta-8-THC, and likely other hemp-derived cannabinoids, are not controlled substances in light of the 2018 Farm Bill. The 2018 Farm Bill excludes hemp and hemp products from the definition of marijuana and THC under the Controlled Substances Act, and the definition of “hemp” includes all cannabinoids, extracts, and derivates from cannabis as long as there is less than 0.3% delta-9-THC.

The Fifth Circuit reversed a defendant’s conviction for carrying a firearm during a crime of violence or drug trafficking crime under 924(c). The trial court had erroneously instructedhe jury that it could find the defendants guilty of those charges if they used or carried a firearm in relation to either the “crime of violence” charged by their RICO conspiracy count or the drug trafficking crime charged, but RICO is not a “crime of violence” under Fifth Circuit precedent.

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.

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.

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.

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.

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.”