Drug Offenses

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.”

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.”

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.”

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.