Friday, February 09, 2018

Sixth Circuit rules that defendant who volunteered to search the internet for information on a missing drug shipment can be held responsible for the shipment’s total weight

In United States v. Pablo Hernandez, the Sixth Circuit demonstrated the low threshold required for holding a defendant responsible for drugs distributed by a conspiracy.  Mr. Hernandez procured an abandoned warehouse to receive large shipments of marijuana from out of state.  In return for this service, the supplier agreed to pay Mr. Hernandez $5,000 per shipment.  After the supplier fell behind on his payments, he offered to give Mr. Hernandez two kilograms of cocaine to satisfy his debt.  These two kilograms were part of a larger 28 kilogram shipment.  However, Mr. Hernandez and his associates were not going to receive this shipment; instead, Mr. Hernandez needed only to pick up his two kilograms from the delivery location.

En route, the shipment went missing.  The supplier told Mr. Hernandez that he was concerned that police had seized the shipment, or that one of the supplier’s employees had stolen it.  Mr. Hernandez “then volunteered to get on the internet and see if he could find out what happened.”  Eventually, one of his associated informed him that the DEA had seized the shipment.

After Mr. Hernandez was arrested, he confessed to both his role in receiving the shipments of marijuana and his involvement with the 28-kilogram shipment.  He then pleaded guilty to the cocaine charges in exchange for the government’s agreement not to prosecute the marijuana offense.

At sentencing, Mr. Hernandez argued that he was responsible for only the two kilograms of cocaine he was set to receive.  More specifically, he argued that the remaining 26 kilograms were outside the scope of his agreement, and thus not relevant conduct.  The district court rejected this argument based on Mr. Hernandez investigating the missing shipment on the internet.  The district court ruled that his actions after the shipment had gone missing had “expanded his role in the conspiracy.”  The court also rejected Mr. Hernadez’s argument that he was a minor participant in the cocaine conspiracy. 

On appeal, the Sixth Circuit affirmed the district court’s rulings.  The court held that Mr. Hernandez’s investigation had expanded his role in the conspiracy, justifying holding him accountable for the full 28 kilograms.

The Sixth Circuit also affirmed the enhancement of Mr. Hernandez’s sentence based on maintaining a drug-premises.  The record showed that Mr. Hernandez had procured the abandoned warehouse for a marijuana shipment at least three times.   The court focused on Mr. Hernandez’s relationship to the abandoned warehouse during the deliveries, noting that he controlled the premises during these times.  Thus, despite the fact that Mr. Hernandez did not control the abandoned warehouse between deliveries, the enhancement applied.

Opinion available here.

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