However, considering my current matter, I am facing the fact that some federal crimes have mandatory penalty structures.  These make it especially hard to do my job of getting the lowest possible sentence for my client.  For example, even if I convince the Judge that my client is entitled to mercy, the Judge’s hands are tied and he or she cannot impose anything less than the mandatory minimum punishment.  As a result, I try to convince prosecutors to let my client plead guilty to a different, but related, crime which carries no mandatory minimum and a relatively low maximum punishment. Federal drug crimes often carry mandatory minimum penalties, another leftover from the idiotic War on Drugs we waged against ourselves back in the 1980’s and 1990’s and early 2000’s. The maximum sentences are usually 20 years, 40 years, or sometimes life in custody.  However, I sometimes can get federal prosecutors to drop the drug charges and let my client to plead guilty to one of my three favorite quirky crimes outlined below.

First, we sometimes can use the “general” conspiracy statute, 18 U.S. §371.  This is a separate law that makes it a crime to conspire (meaning “to agree”) to commit a different federal crime.  The great thing about §371 is that the maximum punishment is 5 years in custody, even when the object of the agreement would be a higher and more heavily punished crime.  There also is no minimum for this type of conspiracy.

Second, I also like to see if we can use a “Travel Count” for certain situations as a quirky alternative.  This crime looks nasty and dangerous on the surface, and is lodged deep in the midst of the federal racketeering laws.  However, a very close reading shows that this crime also has only a 5-year maximum for anyone, and applies to anyone who travels in interstate commerce to distribute the proceeds of any unlawful activity or who travels to promote or facilitate  any unlawful activity.  Obviously, we can shoehorn a lot of cases into the Travel Count scenario

Finally, one of my favorite quirky laws is the “Phone Count.”  Remember, many federal drug crimes have 5 and 10, and even 20-year mandatory minimum penalty structures. However, deep within the bowels of Title 21 of the U.S. Code is section 843(b).  This law makes it a crime to use a “communications facility” to “cause” or “facilitate” anything else that is a crime under the federal drug laws.  The “Phone Count” has a maximum of 4 years in custody, so this is another option when we are looking for other laws my client can plead guilty to in order to avoid the mandatory minimum sentence structures.

One of the less well-known parts of our wonderful Constitution is called the “supremacy clause.”  If you are interested, you can find it in Article VI, the second paragraph.  Here is what it says: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The supremacy clause makes a lot of sense for many aspects of life in a democracy.  For example, things would be a bit untidy if the law on how to build and maintain a highway changed at the state line separating Alabama from Georgia.  Keeping some level of uniformity means that our people can expect the same basic guidelines and laws as we move from place to place in this enormous and beautiful land.

However, we also need to think about the interplay between the Supremacy Clause and the Tenth Amendment, which says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  The Tenth Amendment partially defines who we sometimes call “federalism”, which is the relationship between Federal and state governments. As the country has grown and activity and regulation by the central government has increased, we keep butting into the problem of reconciling state and national interests applicable to taxes, police power and the like.

So, back to our Pot Problem: what to do when a State (such as Colorado), says it is OK to use it, but the feds say it is illegal to both use, and to sell.  The bottom line is that the Supremacy Clause generally rules this debate, and the feds can prosecute a marijuana case in on one of its courts even if that court sits in a state that otherwise says the drug is legal.  However, the story is not quite so simple.

Another wonderful aspect of the Constitution is the Sixth Amendment right to a jury trial, a place where (supposedly) average men and woman are called on to render verdicts in trials.  I have a federal marijuana case now that, when the Feds announced the raid and prosecution, the responses to the local paper basically all said something to the effect of “why are we wasting money on going after this stuff when there are more important crimes to prosecute?”  Jurors are supposed to only base their verdicts on the facts and the law, but in reality all of us bring some preconceived notions into court.  Some jurors let those notions overcome the law, from time to time (we have a fancy name for this, “jury nullification.”)  So, while the lawyers are all obligated to keep their arguments well inside the confines of the law (such as the federal law outlawing marijuana), nothing can stop a juror who wants to acquit a Defendant charged in a marijuana case if the juror feels the federal law is a waste of time and resources.

I hope to post more about all of this as these cases move through the courts.  Stay tuned!

As many readers know, one big change that resulted in reductions of some federal sentences is the “crack reduction”.  Back when our Nation locked up tens of thousands of citizens, our lawmakers decided that some dumb kid dealing in crack cocaine should be punished 100 times more severely than the disco-dancing fool who peddled the powder version of the very same drug.  After an entire generation was impacted by such unfair sentencing, Congress and the U.S. Sentencing Commission changed the rules, resulting in some prisoners getting reductions to their sentences.

More recently, Congress and the Sentencing Commission approved a reduction in the “drug table”.  Those who know about federal criminal sentencing realize that the “Sentencing Guidelines” is a point-based system designed to spit out a recommended sentence.  In drug cases, the biggest factor is the quantity of drugs for which the Defendant will be held accountable.  This quantity is then tied to an “offense level”.  The more drugs in a case, the higher the offense level.  Realizing that we have locked up way too many people for far too long, Congress and the Sentencing Commission last year reduced everything in the Drug Table by 2 levels, which can mean a fairly sizable reduction even for a Defendant serving a lengthy sentence.  Just this morning I got an agreement from the federal Probation Office that the judge should reduce one of my client’s sentences by almost three years.  This means my client will be getting out of prison very soon, to the relief of his family (not to mention the overburdened taxpayers).

Although there have been positive developments over the past few years, more is needed.  One of the bigger remaining problems is the concept of “mandatory minimum sentences.”  These crimes require a certain minimum sentence, even if the experienced Judge thinks the sentence is excessive.  By enacting these truly bad laws, Congress gave some wet-behind-the-years young federal prosecutor out to make a name for him or herself the right to name the sentence, as opposed to letting the sentence be decided by an experienced Judge who was nominated by the President and approved of by Congress.  Just the other day, two Justices on the U.S. Supreme Court testified before a congressional hearing, and gave them an earful about the stupidity of mandatory minimums sentences. “This idea of total incarceration just isn’t working,” Justice Anthony Kennedy said.  In lots of cases, Kennedy said it would be wiser to assign offenders to probation and other supervised release programs.   Justice Stephen Breyer, who also testified at the hearing, added that setting mandatory minimum sentences for specific crimes was “a terrible idea.” He called on Congress to “prioritize” improvements to the criminal-justice system.  You can read about their testimony here.   Other potential good news is that the Sentencing Commission is poised to reduce the “loss table”, which is one of the biggest factor in setting fraud sentences.

I feel really bad for all the clients and families whose lives were ruined by our Nation’s foolish foray into mass incarceration.  Doing crime should require some people to “do time,” but our country went overboard.  We will try to help our clients, both old and new, to get the lowest and most fair sentence for the crime they committed.

A little history lesson helps to understand this vote and how it can possibly help people already sentenced to federal prison for a drug crime. Back in the 1980’s, the media hyped up what it called the crack cocaine explosion. Politicians fell all over themselves in efforts to be “tough on crime.” This resulted in a very bad law enacted in 1986 which created mandatory minimum penalties for federal drug crimes. These mandatory penalties caused automatic enhancements to another set of rules for federal criminal sentences called the “Sentencing Guidelines.” As a result, an entire generation of offenders were subject to increased sentences, whether or not the Defendant was a young first-time offender or a seasoned long-term criminal. Taxpayers spent billions of dollars on useless and inhumane incarceration.

However, about 10 years ago the power structure finally began waking up, recognizing that we have the world’s highest incarceration rate, and we are throwing away billions of dollars each year to incarcerate many low-level drug offenders. Reductions in crack cocaine sentences got much of the attention in the past few years.

Earlier this year, the Sentencing Commission voted to change the Sentencing Guidelines to further reduce sentences for all drug crimes. In essence, the knocked two “levels” from all drug calculations. This change only goes into effect November 1, 2014, however.

Tomorrow the Sentencing Commission votes to make this change “retroactive”, meaning it would help people already serving federal drug sentences. As shown in the paper on the Commission’s website, they estimate it would reduce sentences for over 51,000 people, resulting in huge savings for the taxpayers.

We will keep a close eye on the Commission vote. Hopefully, we can use this for some of our current and future clients, to get them out of prison earlier and back to their families.

In federal courts each year, 25,000 people are convicted for drug offenses, with 45% of those convictions for lower level offenses. According to the Justice Department, the cost of incarceration in the United States was $80 billion in 2010. Despite the fact that the U.S. contains 5% of the world’s population, we incarcerate 25% of the world’s prisoners. Justice Department officials said federal prisons are operating at nearly 40 percent over capacity.

In Georgia, we have the fifth-largest prison system in the nation, and it costs us $1 billion a year. The Pew Center on the States found that 1 out of every 17 state dollars is consumed by this industry. And while prison populations dropped in half the states, Georgia was among the states that posted an increase.

Admitting the problem is the first step, but when will we see action? Holder has issued a directive to his 94 U.S. Attorneys located throughout the U.S. to create specific criteria for exactly when filing charges is necessary and to only trigger the mandatory minimum sentence statutes in limited circumstances. The idea here is to allow prosecutors and ultimately judges to have discretion over which crimes truly deserve harsh punishment based on the particular circumstances of a person’s case. It will now be up to each individual office how to interpret and implement this suggestion from Washington. The trouble is, prosecutors have always possessed this power of discretion – deciding who to prosecute and for which charge. The problems with our system have been known, and it has been within the power of the prosecution and legislature to do something about it.

And what about Georgia? Thankfully, some criminal justice reform began in the 2011-2012 legislative sessions. Changes were implemented such as slightly lower minimums for drug trafficking charges, modifications in the tiers of theft offenses, and increases in drug and mental health courts as alternative sentencing. However, there were no changes to Georgia’s recidivist sentencing laws that create long, mandatory minimum sentences without parole for small amounts of drugs and other minor property offenses. Kish and Lietz, P.C. has an appeal pending before the Georgia Supreme Court requesting its correction of a Judge’s inability to sentence our client to anything less than 10 mandatory years in prison without parole for less than .9 grams of crack cocaine. In that case, the prosecution could have decided not to request the enhanced sentence. Unfortunately, personal achievement and ego prevailed over practicality and logic. Would a directive from the U.S. Attorney have made a difference? Will Georgia lawmakers and courts follow the lead towards a healthier and more prosperous country, or will politics continue to stand in the way? Only time will tell.

Mr. Burrage was like too many folks, caught up in the drug business, selling relatively small amounts of controlled substances. His life intersected with Joshua Banka, another lost soul who was a long-standing poly-substance abuser. Burrage sold some heroin to Banka, who died after using some of the drug. Banka had lots of other drugs in his system as well, and his girlfriend acknowledged he’d used some of these other drugs in the day before he died. The experts who testified at trial gave complex answers about the cause of Banka’s death, but they could not say that Banka would not have died if he had not used heroin (this method of saying the word “not” three times in the same sentence appears in the briefs for each side of the case).

A federal statute requires a 20-year mandatory minimum sentence for a person dealing drugs “if death results.” At trial, the Defendant wanted the judge to tell the jury that selling heroin “played a substantial part” in bringing about the death, and that the death was a “direct result of or a reasonably probable consequence of” using the heroin. Mr. Burrage’s attorney also wanted a jury instruction on the well-known first-year law school concept of “proximate cause” . The trial judge and the court of appeals rejected the Defendant’s contentions, and said it was OK to tell the jury that it was enough if they decided that the heroin was a “contributing cause” of Mr. Banka’s death. The instruction told the jury that “a contributing cause is a factor that, although not the primary cause, played a part in the death[.]” The jury found Burrage guilty, the Court of Appeals rejected his arguments, and his very competent Iowa lawyer asked the United States Supreme Court to look at the case.

The government protested that the Supreme Court should not review the case because the “if death results” issue rarely comes up in federal criminal prosecutions, and that any dispute among the lower federal courts on these questions is really more of a tempest in a teapot. However, it seems that the Supreme Court believes this really is an important case, for they accepted Mr. Burrage’s case for review and argument next Fall. The case will have important lessons for many other federal criminal prosecutions, issues as diverse as how to read a statute written in the passive voice (“if death results” is different than the active voice “caused death”), whether it is OK to construe a criminal statute with mandatory penalties in a manner akin to strict liability, and varying levels of “causation”, a concept that applies in criminal and civil cases alike.

We look forward to the Briefs and arguments, and how this decision might affect the matters we handle for our clients. Stay tuned.

The opinion resulted in a somewhat unusual alignment of justices. Justice Scalia, perhaps the Court’s most conservative member, wrote the majority decision. He was joined by Justice Clarence Thomas, a frequent ally, and three of the court’s more liberal members, Justices Ginsburg, Sotomayor and Kagan.

Justice Scalia said the Fourth Amendment, which prohibits unreasonable searches, is particularly concerned with the home and its immediate surroundings. When a dog on a leash roams around the outside of a residence, this is a tremendously different intrusion than visits from Halloween trick-or-treaters. “To find a visitor knocking on the door is routine (even if sometimes unwelcome),” Justice Scalia wrote. “To spot that same visitor exploring the front porch with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to – well, call the police.”

Justice Scalia grounded his opinion in property rights. This is the same theory he espoused when he wrote the opinion last year in Jones v. United States, the now-famous GPS case where a unanimous Court overturned years of practice by holding that placing a GPS monitor on the underside of a suspect’s vehicle is a “search” that must be supported by a warrant.

In yesterday’s case, Justice Kagan wrote a concurring opinion, joined by Justices Ginsburg and Sotomayor. They would also have relied on the “usual” rationale that looks to a person’s “reasonable expectation of privacy.” This seems to set up future battles, as noted by Justice Sotomayor’s spirited concurrence in the GPS case where she wrote: “[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. …This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. … I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

Again, we watch these cases closely, not only to help our clients, but also to predict future cases. Stay tuned!

The pooch in this case is “Aldo.” His handler obviously had it out for Mr. Harris. The officer stopped Harris two times, and had Aldo run around the truck, sniffing for the odors of dope, etc. The first time, Aldo “alerted”, but the officer did not find any of the substances for which the dog was trained to alert. However, they did find chemicals used to make methamphetamine, so they arrested Harris. The same officer again stopped Harris while the latter was out on bail. Once again, the loyal pooch ran around the vehicle, again alerted, but this time no illegal substances or precursors were discovered.

Mr. Harris moved to suppress the results of the first search, arguing that the dog alert was insufficient so as to allow a warrantless search of the truck’s interior. The prosecution presented evidence about Aldo’s extensive training in sniffing out illegal substances. Defense counsel did not challenge this evidence, but instead focused on the lack of any field performance records, along with the fact that Aldo had obviously given two false positives when alerting at the exterior of Mr. Harris’s truck. The Florida Supreme Court agreed with the defense, noting that the lack of performance records for the dog’s earlier work demonstrated that an alert from this animal was simply insufficient evidence to form the basis for probable cause.

Justice Kagan wrote for the unanimous Supreme Court. She noted that the Florida Supreme Court created a rule with specific requirements for establishing probable cause in dog alert cases, and that such specificity is the antithesis of the flexible totality-of-the-circumstances approach in such matters. Courts should not require that the prosecution introduce comprehensive documentation of the dog’s prior hits and misses in the field. The Court noted that looking at field-performance records as the evidentiary gold standard is erroneous. Such records may not capture a dog’s false negatives or may markedly overstate a dog’s false positives. While field records may sometimes be relevant, the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.

This case was not a huge surprise. Courts have for years been calling drug dogs “four-legged probable cause.” Also, for many years the Supreme Court has rejected any specific rules in the probable cause analysis other than the “totality of the circumstances” test, which, obviously, puts a whole lot of power in the hands of the first judge who looks at a case.

United States surveillance detected a vessel sailing in international waters near Panama with no flag or lights. They informed the Panamanian navy, which went after the boat, eventually capturing its crew and the boatload of drugs inside the vessel. Eventually, the crew were brought to Florida and prosecuted in federal court. The defense lawyers wisely argued that a U.S. court did not have jurisdiction, and in yesterday’s decision, the Court of Appeals agreed and threw out their convictions.

As we all know, the Constitution is the beginning point for all laws enacted by Congress. Under the Constitution, Congress has the power “define and punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10. Using the Maritime Drug Law Enforcement Act (MDLA), prosecutors got an indictment against the sailors alleging they had the intent to distribute five kilograms or more of cocaine, and actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States. See 46 U.S.C. §§ 70503(a), 70506; 21 U.S.C. § 960(b)(1)(B).

Prosecutors argued that the MDLA, as applied to the defendants, was a constitutional exercise of the power granted to Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” In rejecting this claim, the Court of Appeals first discussed how the power of Congress to define and punish conduct under the Offences Clause is limited by customary international law. Second, the court explained that drug trafficking is not a violation of customary international law and, as a result, fell outside of the power of Congress under the Offences Clause. As a result, the Panel took the highly unusual step of deciding that a federal law (the MDLA) was unconstitutional.

There still are other federal laws that prosecutors can use when trying to haul an international criminal into a court sitting in the U.S. However, this decision is important for a variety of reasons, not the least of which is that it shows that lawyers need to try each and every avenue available in trying to assist their clients.

Here is what happened in the lower courts. Miami police got a tip that Mr. Jardines was growing marijuana in his house. Based on that tip, a dog handler took the certified drug detecting dog (named “Franky”) to the door of Jardine’s house. Franky indicated that he had smelled drugs, and a detective then went to the door, where he too smelled marijuana. The police got a warrant, and found several live marijuana plants growing inside.

Jardines moved to suppress the drugs, arguing that the dog sniff at his door violated the Fourth Amendment, which prohibits unreasonable searches and seizures. The Florida Supreme Court agreed, holding that the dog sniff was a “search” that itself required a warrant. It was very important to the ruling by the Florida Supreme Court that the sniff took place at the front door of a house, because such activity invades the sanctity of the home, which generally gets more protection under the Fourth Amendment.

The State of Florida convinced the U.S. Supreme Court to review the case. The prosecution relied on several earlier Supreme Court cases holding that dog sniffs in other contexts are not searches. For example, the Supreme Court previously held that a sniff of a car or luggage in an airport is not a search because the sniff merely uses the circulating air to indicate whether drugs are present. Because here the dog merely signaled that he smelled drugs in Jardines’ house, the prosecution contends that this case is more like the other dog sniff cases. The State of Florida also noted that the Florida Supreme Court decision conflicts with the rulings by two federal appellate courts, each of which held that a dog sniff of a residence is not a search.

Mr. Jardines is relying significantly on Kyllo v. United States, as did the Florida Supreme Court. In Kyllo, the Court held that the warrantless use of an infrared device to detect a marijuana-growing operation in a house was unconstitutional because the device could reveal otherwise private information about legal activities within the home.

As mentioned earlier, dog searches only come up in a fraction of our cases, but constitutional principles are always important. We are always interested in cases where the Court is called on to protect the sanctity of a person’s home, so we will watch this matter closely.

Roderick Cochran was seen outside a house, and a police officer claimed she observed him from a block away going in and out of the property. When the police used a warrant to go inside and search the house, they found drugs in the kitchen, and ammunition hidden in a bedroom. Cochran’s driver’s license listed him as living two doors down, and a piece of mail was found inside addressed to he and his niece, who had also lived there. Like some of the early scenes in “My Cousin Vinny”, the defense established that trees and other obstructions made it impossible for the officer to have observed Cochran from a block away. Additionally, the defense showed that including Mr. Cochran’s name on the letter addressed to his niece was a standard format, but it did not show he lived with the niece.

Like most federal courts, the Eleventh Circuit publishes Pattern Jury Instructions for use in federal criminal trials. The Pattern Instruction on possession tells jurors that even if a Defendant does not actually possess an item, he or she can have “constructive possession” if the Defendant has power and intention to take control of it later. In Mr. Cochran’s trial, prosecutors convinced the trial judge to add a sentence that read:”Constructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing.” Cochran’s very able lawyers from the Federal Public Defender objected to the instruction. The jury was quite confused, asking questions about how it should decide if Mr. Cochran possessed either the ammunition or the drugs. “If you have free access to a home then do you have constructive possession of the contents?” The district court replied that it could not answer the question and instructed the jury to consult the jury instructions. During deliberations the next day, the jury again sent a note to the district court, this time asking: “Regarding Count 1 [the ammunition charges] does the definition of constructive possession apply to the phrase ‘knowingly possess?'” Again, the trial judge wold not answer the questions. The jury ultimately acquitted Cochran of the charge concerning the ammunition, but convicted on the drug crimes.

The Court of Appeals agreed that the government’s addition that, “[c]onstructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing,” eliminated the “power and the intention to take control over it later” language. That omission was especially troubling given that the definition of “constructive possession” immediately follows the instruction that “[a]ctual possession of a thing occurs if a person knowingly has direct physical control of it.” 11th Cir. Pattern Jury Instructions (Criminal), Special Instruction 6 (2010) . According to Judge Wilson (who wrote the opinion) “such a juxtaposition could create an inference that constructive possession, as defined by the government’s instruction, lacks an intentionality requirement.”

Judge Wilson found a second problem with the prosecutor’s extra language for the constructive possession instruction. The supplemented constructive possession instruction said that control over the premises-rather than control over the contraband itself-was sufficient to convict. However, the jury makes all choices about the facts and what inferences can be drawn from such evidence. Judge Wilson noted that the Court regularly “disapproves” of jury instructions that invade the jury’s province by implicitly mandating an inference.

Despite these problems, the Eleventh Circuit nevertheless upheld Mr. Cochran’s drug convictions. “We find that although the wording of the final sentence of the constructive possession instruction would have been more clear if it included language about knowledge or intent, that flaw is mitigated by the totality of the instructions.” The Court noted that the trial judge did tell jurors that it had to find “knowing possession, and that the prosecutors repeatedly argued that Cochran did in fact know about the drugs found in the home. These twin factors led the Court to affirm the conviction.

We live in a pill-popping culture where pharmaceutical companies create more and more drugs that they claim we “need” to survive. Adderall is a drug prescribed mostly for Attention Deficit and Hyperactivity Disorder. It is well-known that this drug is often used, traded and sold by college students as a “study aid.” More and more professionals use the drug to get through a big test or hard and stressful workload. Some stories have called it “Ivy League Crack.”

Our client wanted to go to medical school. She had a romantic relationship with a medical doctor, who wrote Adderall prescriptions to supposedly “help” her study for the MCAT’s. The doctor came up with the bright idea of writing more and more Adderall prescriptions, and then selling the excess pills to other Yuppies through Craiglist. He had our client fill most of the prescriptions, and showered her with gifts and trips using the proceeds. The couple broke up, he got busted, and turned on our client, resulting in her arrest as she got off a plane here in Atlanta. The case was prosecuted in the Eastern District of New York, where the doctor had been doing his medical residency.

This case is a perfect example of how recent societal trends show up in our federal criminal cases. We are glad that the sentencing judge understood and accepted our basic premise that sending this young woman to prison makes no sense. We hope that other people caught up in such situations look for attorneys who know the federal system well enough to navigate through these difficult cases.

In this post in August, we summarized the impact of the Fair Sentencing Act of 2010, which reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. The Act also provides for higher sentencing guidelines for all drugs in some cases. This amendment brings about the changes made by the Act.

Specifically, the emergency amendment makes the following changes to the Sentencing Guidelines to implement the Fair Sentencing Act:

* The base offense levels for crack cocaine are set in the Drug Quantity Table so that the statutory minimum penalties correspond to levels 26 and 32. This change implements the Act’s application of the five-year mandatory minimum sentence to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams, and the ten-year mandatory minimum sentence to cases involving at least 280 grams of crack cocaine, compared to the prior 50 grams.

* The amendment establishes a marijuana equivalency for crack cocaine under which 1 gram of crack cocaine is equivalent to 3,571 grams of marijuana and, in the commentary to §2D1.1, deletes the special rules in Note 10(D) for cases involving crack cocaine and one or more other controlled substances.

* §2D1.1 is amended to add a sentence at the end of subsection (a)(5), which is often referred to as the “mitigating role cap”. The new provision provides that if the offense level otherwise resulting from subsection (a)(5) is greater than level 32, and the defendant receives the 4-level “minimal participant” reduction in subsection (a) of §3B1.2, the base offense level will be decreased to level 32. Because a 4-level reduction is uncommon, this new provision will have limited impact.

* §2D1.1 is amended to create new specific offense characteristics providing an enhancement of 2 levels if the defendant: o Used violence, made a credible threat to use violence,or directed the use of violence; o Bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the offense; o Maintained a premises for the purpose of manufacturing or distributing a controlled substance; or o Receives an aggravating role adjustment and the offense involved any “super-aggravating” factors.

* §2D1.1 is also amended to create a new specific offense characteristic providing a 2-level downward adjustment if the defendant receives the 4-level “minimal participant” reduction and the offense involved three specified factors: o Motivation by an intimate or familial relationship or by threats or fear to commit the offense when the defendant was otherwise unlikely to commit such an offense; o No monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances; and o Minimal knowledge of the scope and structure of the enterprise.

A reader-friendly guide to the temporary amendment is available here.

The major features of the law include the following:

• The five-year mandatory minimum sentence now applies to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams.

• The ten-year mandatory minimum sentence now applies to cases involving at least 280 grams of crack cocaine, compared to the prior 50 grams.

• The Act eliminates a five-year mandatory minimum for simple possession of crack cocaine.

• The Act increases financial penalties for major drug traffickers.

• Within 90 days, the United States Sentencing Commission (USSC) must increase the sentences under the advisory Sentencing Guidelines for defendants using violence in drug trafficking crimes and emphasize certain aggravating and mitigating factors.

• The Comptroller General must report to Congress on the effectiveness of drug court programs.

• In five years, the USSC must report to Congress on the impact of the law’s changes to cocaine sentencing law.

The full text of the Act is available here.

As we explained in this post, the ACCA provides for a mandatory minimum sentence of 15 years for federal criminal defendants who have three previous convictions for violent felonies or serious drug offenses. Those offenses must have been committed on temporally distinct occasions. In Sneed, the defendant had three previous drug convictions that were charged in a single indictment in Alabama. The state indictment did not provide dates or times for the offenses, so the district court looked to police reports attached to the government’s sentencing memorandum to determine that the offenses were committed on different occasions.

In 2000, the Eleventh Circuit held in Richardson that “determining whether crimes were committed on occasions different from one another requires looking at the facts underlying the prior convictions.” In that case, police reports showed that the prior crimes had been temporally distinct and their accuracy was not contested. The Eleventh Circuit relied on the police reports and concluded that the crimes were distinct.

The Supreme Court decided Shepard in 2005, holding that sentencing courts may only consult certain materials in determining the nature of a defendant’s prior convictions for purposes of ACCA. The Court expressly rejected police reports and stressed developments in the law, Jones and Apprendi in particular, addressing the constitutional concerns requiring a jury’s finding of a disputed fact about prior convictions where that fact is essential to increase a potential sentence. Shepard-approved materials include charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from bench trials, and jury instructions and verdict forms.

The Eleventh Circuit stated that Richardson‘s conclusion that courts may look to certain facts underlying prior convictions for the different occasions inquiry is still correct, but held that Shepard abrogated its approval of the use of police reports. Although Shepard addressed a different ACCA determination, the two statutory predicates (type of offense and different occasions) are contained in the same sentence. The Eleventh Circuit held that “there is simply no distinction left” between type of offense and different occasions inquiries for the scope of permissible evidence to be different in determining each statutory predicate.

The bottom line is that the defendant’s mandatory minimum 15-year sentence is tossed, although he still faces a potential max of 10 years for being a felon in possession.

The opinion in this case is available here.

The opinion in the case, U.S. v. Phillips, is available here.

The Federal Defender blog has a post on the case here.

More information on crack resentencing is available here at the Sentencing Law and Policy blog.

Jules was originally sentenced to 151 months, the bottom of his Guidelines range, for conspiracy to possess with intent to distribute 50+ grams of cocaine base. The Guidelines were subsequently amended to reduce the base offense-level in such a case. Thereafter, Jules requested a modification of his sentence. The probation office sent a memo to the district court detailing misconduct by Jules while in prison. That memo was neither docketed nor provided to either of the parties. The district court relied on the sanctions in the memo in denying Jules’ motion for modification.

The Eleventh Circuit held that, although a defendant in a § 3582(c)(2) proceeding is not afforded all of the protections as at an original sentencing, the “fairness and due process principles embodied in the Federal Rules of Criminal Procedure, the Sentencing Guidelines’ policy statements, and the reasoning of [the Fifth and Eighth Circuits] compel us to hold that each party must be given notice of and an opportunity to contest new information relied on by the district court in a § 3582(c)(2) proceeding. The court also stated that a hearing is permissible for allowing parties to contest such information, but not necessary.

The Eleventh Circuit’s opinion is available here.

As we discussed in this post in July, a new federal law directed at online pharmacies went into effect this April. The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription, or to advertise for such distribution. In response to this Act, the United States Sentencing Commission made several amendments to the Sentencing Guidelines, including a new sentencing enhancement at §2D1.1, increasing the base offense levels for hydrocodone offenses, and assigning guidelines to the two new offenses created by the Act.

New Sentencing Enhancement at §2D1.1

The Commission added a new sentencing enhancement, which applies when the offense involved a Schedule III controlled substance and death or serious bodily injury resulted from the use of the drug. The enhancement provides a maximum of 15 years, or 30 years for second or subsequent offenses. Schedule III includes such drugs as anabolic steroids, morphine, hydrocodone, and ketamine.

The amendment adds two alternative base offense levels to §2D1.1 [Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy]. §2D1.1(a)(4) is added to provide a base offense level of 26 for a Schedule III conviction involving death or serious bodily injury resulting from the use of the drugs. §2D1.1(a)(3) now provides for a base offense level of 30 in such a case where the defendant has one or more prior convictions for similar offenses.

Increased Base Offense Levels for Hydrocodone

The amendments modify the Drug Quantity Table in §2D1.1 to specify the base offense levels for hydrocodone as follows:

Two New Offenses

Our previous post discussed the new offenses created by the Act. 21 U.S.C. § 841(h) prohibits the distribution, delivery, or dispensing of controlled substances over the Internet without a valid prescription. The Commission has referred this offense to §2D1.1. That Guideline already includes a two-level enhancement where a controlled substance is distributed “through mass-marketing by means of an interactive computer service” i.e., the Internet.

The second new offense at 21 U.S.C. § 843(c)(2)(A) prohibits use of the Internet to advertise the sale of controlled substances. § 843(c) is already referenced to §2D3.1, but the amendment changes the title of the Guideline to “Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Scheduled Substances; Attempt or Conspiracy.”

The government argued that Abuelhawa’s use of a phone to buy cocaine counted as “facilitation” because it made the drug dealer’s sale easier, hence violating a section of the Controlled Substances Act that makes it a felony “to use any communication facility in committing or in causing or facilitating” felony drug distribution. While at first glance, the common meaning of “facilitate” may give this impression, the result is absolutely absurd. And, as the Court points out, in any sale, the two parties have specific roles and “it would be odd to speak of one party as facilitating the conduct of the other.”

Justice Souter, in his opinion for the unanimous Court, was diplomatic in his criticism of the government’s inane argument. He called it “improbable” and “just too unlikely” because it “comes up short” and “does not follow.” The Court reasoned that the distinction Congress made in the Controlled Substances Act between distribution (a felony) and simple possession (a misdemeanor) makes it “impossible to believe that Congress intended ‘facilitating’ to cause that twelve-fold quantum leap in punishment for simple drug possessors.”

While we are still disappointed with the Court’s other criminal law decision last Tuesday, we at least take solace in that they recognized blatant government overreaching in this case.

Chimel was decided in 1969, holding that police may search the space within an arrestee’s immediate control, “from which he might gain possession of a weapon or destructible evidence.” Belton extended the rule to vehicle searches, but has unfortunately been widely understood to permit vehicle searches even where the arrestee could not gain access to a weapon or evidence. Police have been trained to secure arrestees, then routinely search everything within the passenger compartment of the car. Though these searches have no officer safety or preservation of evidence justification, the police have on occasion acted as if the Belton rule gave them the right to search wherever and whenever they wanted to do so.

In last week’s case, Mr. Gant happened to be at a house that police thought may contain drugs, based only on an anonymous tip. With no probable cause to search Gant or the house for drugs, the officers later arrested Gant after he drove into the driveway, on a warrant for driving with a suspended license. After Gant had been handcuffed and placed in the back of a patrol car, officers searched his vehicle and found a gun and a bag of cocaine. When asked under oath why they performed the search, one of the officers responded, “Because the law says we can do it.”

A chorus of scholars, courts, and Supreme Court justices has called for the Court to revisit Belton, questioning its fidelity to the Fourth Amendment and its clarity. The majority in Gant finally rejected the overbroad reading of Belton and held that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” The Court further held that a search might be justified when it is reasonable to believe that evidence related to the crime for which the person is arrested may be found in the vehicle.

Justice Alito wrote the dissenting opinion in this case and was joined by Chief Justice Roberts, Justice Kennedy, and, in part, Justice Breyer, who disagreed with Alito that Belton was well-reasoned. The dissent focused on stare decisis, insisting that the majority was over-ruling Belton, without properly addressing the abandonment of prior precedent. Justice Stevens, writing for the majority, and Justice Scalia, in a concurring opinion, stressed that stare decisis does not justify unconstitutional results.

We are relieved that the court finally limited this rule, which police have taken advantage of for nearly thirty years to invade citizens’ privacy and conduct searches without probable cause. However, we take issue with the second part of the rule, permitting a vehicle search incident to arrest when officers have “reason to believe” they might find evidence related to the crime of arrest. The Court does not address why it chose this standard, rather than probable cause. This part of the rule will create confusion and could tempt officers to fabricate potential crimes in order to search the car in hopes of finding evidence.