Thursday, April 20, 2017

The en banc reviews keep coming!

Yesterday, the Sixth Circuit granted en banc review in United States v. Gibson, 15-6122. This case involves whether a co-conspirator who only directly handled a very small amount of drugs should be held accountable for the total amount of drugs involved in the entire conspiracy.

Though he only made three small sales of meth, Mr. Gibson pled guilty to conspiracy to distribute meth that involved fifty grams or more of methamphetamine. This triggered the ten-year mandatory minimum. Mr. Gibson made Alleyne arguments as well as Guideline arguments, both of which were rejected by the Sixth based on existing precedent. Judges Daughtrey, Rogers, and Cook were not entirely happy with the result. Judge Rogers wrote:

"The result in this case may appear unjust. Mandatory minimums for limited-amount co-conspirators do not serve the drug statute's underlying purpose of more severely punishing larger-amount drug dealers. Nonetheless, absent a change in our law from the en banc court, the Supreme Court, or Congress, we are bound by our precendents."

Judge Rogers also noted the Circuit split on the issue.

The Sixth has yet to schedule oral argument in Stitt, 14-6158, or Turner, 15-6060. Given all the summer vacation schedules in play, it is probably too much to hope for a triple-header sometime in July or August. Maybe after Labor Day? When it is still warm enough to grab an after-court ice cream or pastry at Graeter's before heading off to Arnold's for tasty adult beverages?

1 comment:

Robert Dietrick said...

Three issues to watch with this case: (1) en banc review is rare, but all the more so in cases (such as this) where plain error review apparently applies; (2) Gibson received the mandatory statutory minimum for the offense to which he pled; and (3) the Government argued that further review was unnecessary because current prosecutorial guidelines prescribe charging an individualized drug quantity and seeking a jury instruction for a finding of an individualized drug quantity. Knowing this, preserve the issue in your current cases and anticipate the Government's likely responses.