Drug Offenses

The Federal Docket

United States v. Pedro Nunez, et al (11th Cir. June 2021)

The Eleventh Circuit affirmed defendants’ drug smuggling convictions under the Maritime Drug Law Enforcement Act. The Court held that the U.S. had jurisdiction over the defendants because they were in a “vessel without nationality.” The four defendants were found in a small motor boat, without any identifying flag, documents, registration, serial numbers, or other sign of nationality, and none of the defendants identified themselves as the vessel’s master. The Court’s ruling on this point creates a circuit split with the Second Circuit. Moreover, the Eleventh Circuit held that a district court is not required to conduct an evidentiary hearing on jurisdiction absent evidence showing a need for a hearing.

United States v. Mario Alberto Montenegro (11th Cir. June 2021)

The Eleventh Circuit affirmed the district court’s application of the 2-point enhancement for possessing a firearm or dangerous weapon during a drug offense. Although the Government conceded at sentencing that it could not meet its burden and the defendant objected to the enhancement, the Court held that the district court, not the parties, apply the guidelines, and there was sufficient evidence to apply the enhancement here where the defendant’s rifle was found in a “very small trailer,” where the defendant sold and kept drugs, and the rifle was in “very close proximity” to the drugs.

Terry v. United States (U.S. Supreme Court, June 2021)

In a 9-0 decision (with J. Sotomayor concurring in the judgment), the Supreme Court held that a defendant who had been convicted for a crack-cocaine offense that did not carry a mandatory minimum did not have a conviction for a “covered offense” under the First Step Act and was thus ineligible to move for a sentence reduction. The First Step Act had the Fair Sentencing Act of 2010 retroactive.

United States v. Abdulaziz (1st Cir. June 2021)

The First Circuit vacated a defendant’s sentence which had been enhanced based on a 2014 conviction under state law for distributing marijuana, which the sentencing court held was a “controlled substance offense” under the Guidelines. The First Circuit held that convictions under state laws that do not distinguish between marijuana and hemp, as defined and legalized under federal law, cannot serve as “controlled substance offenses” under the Guidelines.

Ninth and Eleventh Circuits Split Over Amended Safety Valve Relief

The Eleventh Circuit and Ninth Circuit created a circuit split concerning the proper interpretation of the safety valve under 18 USC 3553(f), particularly as it was amended by the First Step Act. The courts disagreed over the proper interpretation of the word “and” in the list of requirements a defendant must meet for their criminal history to allow them to qualify for the safety valve. The Ninth Circuit’s interpretation would allow far more defendants qualify.

DEA Releases its “National Drug Threat Assessment” for 2020

The DEA has released its “National Drug Threat Assessment” for the Year 2020. The report contains an exhaustive review of topics such as the different sources for different drugs imported into the U.S., the price and purity levels of several controlled substances, data regarding where most drugs are trafficked or seized, consumption patterns, and other information that can be helpful to defense attorneys in drug cases.

United States v. Tony Dewayne Williams (6th Cir. March 2021)

The Sixth Circuit affirmed a defendant’s sentence which was enhanced based on a prior felony conviction under Tennessee law involving marijuana. The Court held that the sentencing court erred in enhancing the defendant’s sentence based on that conviction because the Tennessee law at issue included hemp under the definition of marijuana, while hemp was distinguishable and legal under federal law. Therefore, the Tennessee conviction was not a “controlled substance offense” under the Guidelines. However, since the defendant had only objected generally at sentencing and did not articulate grounds for his objection, plain error review applied, and the sentencing court’s error here were not clear or obvious given the complexity of the issue.

United States v. Precias Freeman (4th Cir. March 2021)

The Fourth Circuit vacated a drug defendant’s sentence for two reasons. First, it held that, despite there having been no hearing where sentencing counsel testified, the record was sufficient to establish that defendant received ineffective assistance when her counsel waived meritorious objections to the guidelines that would have resulted in a lower range and where he put his efforts into getting her in a drug program despite not knowing the program’s requirements for admission. The Court also held that the defendant’s 17-year sentence was substantively unreasonable where the sentencing court failed to consider her severe opioid addiction and that her sentence was significantly longer than those of similarly-situated defendants across the country.

United States v. Tremayne Drakeford (4th Cir. March 2021)

The Fourth Circuit reversed a district court’s denial of defendant’s suppression motion. The officers had conducted a stop and frisk of the defendant at a store, and found drugs, after receiving information from an informant, witnessing the defendant during two suspected drug interactions, and seeing the defendant meet another person outside the store and engage in two handshakes, which the officers believed was a hand-to-hand drug deal despite not seeing drugs or money change hands. The Court held this was not enough to establish reasonable suspicion because the information from the informant was generalized, there was little testimony regarding the informant’s reliability, the officers had not seen any drugs or found any drugs relating to the two interactions they previously witnessed the defendant in, and the two handshakes were not suspicious where the defendant was outside a store in broad daylight and otherwise not acting suspiciously. The Court warned that “the Fourth Amendment does not allow the Government to label a person as a drug dealer and then view all of their actions through that lens.”

United States v. Simha Furaha (9th Cir. March 2021)

The Ninth Circuit affirmed a defendant’s sentence after the defendant challenged the district court’s application of an enhancement based on the defendant’s prior conviction under 924(c), which the sentencing court considered a “controlled substance offense” warranting an enhancement. The Court held that a sentencing court may apply the modified categorical approach to determine whether a defendant’s underlying “drug trafficking crime” under 924(c) was a “controlled substance offense” under 4B1.2.

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