Keep an Eye Out for Prior Marijuana Convictions

In the 2018 Farm Bill, Congress amended the federal marijuana definition to exclude anything with less than 0.3% THC (commonly called "hemp," but be careful: some sources, including some state-court decisions, use "hemp" to refer to other things). That has spurred some defendants to challenge whether a prior marijuana offense counts as a "controlled substance offense" under Guidelines § 4B1.2. The guidelines definition requires that the offense involve a "controlled substance," and if the state or federal definition did not exclude substances with less than 0.3% THC, they argue, their offenses were categorically overbroad. Two courts of appeals and the "vast majority of district courts to consider the issue" have agreed and held that certain prior marijuana offenses are not controlled substance offenses. See United States v. Perry, No. 20-6183, slip op. at 3-4 (6th Cir. Aug. 18, 2021) (collecting cases).

Enter Mr. Perry. The district court found that he had three prior controlled substance offenses: a federal conviction involving cocaine and two Tennessee convictions involving marijuana. He was thus a career offender, enhancing his guidelines range from 30-37 months in prison to 151-188 months in prison. The court sentenced him to 151 months.

On appeal, Mr. Perry argued that his two Tennessee marijuana convictions weren't controlled substance offenses because the Tennessee definition included substances with less than 0.3% THC. And the court of appeals said he made a "strong claim that he should not have been sentenced as a career offender." Id. at 4. One problem, though: he never objected in the district court. Given no published Sixth Circuit decision on the issue and at least one case deciding the question the other way, the court concluded that Mr. Perry could not establish plain error and affirmed his 151-month sentence.

The court of appeals is sure to decide this issue soon. In the meantime, take a close look at prior marijuana convictions for any objections.

Federal Kidnapping's "Otherwise" Component Might Be Void for Vagueness

 The majority in United States v. Kerns held that the federal kidnapping statute under 18 U.S.C. 1201(a)(1) was not void for vagueness where the issue was raised for the first time of appeal. Under Section 1201(a)(1), federal kidnapping requires kidnapping or holding "for ransom or reward or otherwise" a person while traveling in interstate or foreign commerce. In holding that "otherwise" was not vague, the majority relied on the aging decision in Gooch v. United States, 297 U.S. 124, 128 (1936), which held that "otherwise" encompasses any benefit which a captor might attempt to obtain for himself. Given the "expansive" definition of the term, the majority held Mr. Kerns was on notice as to the criminality of his conduct.

However, Judge Readler wrote a concurring opinion suggesting that the federal kidnapping statute might be ripe for a stronger vagueness challenge under a more advantageous standard of review. Judge Readler indicates that the reasoning in Gooch may no longer be sound, as it "employed now-disfavored atextual interpretive methods, and in the process dramatically expanded the reach of federal criminal jurisdiction, leaving separation-of-powers and federalism concerns in its wake." In his view, the statute may invite the exercise of arbitrary power by allowing prosecutors and the courts to make up when the law is enforced.

Suggestion that Prosecutor Would Not Have Agreed to Plea Terms Had She Had Additional Information Is a Breach of the Plea Agreement

 In United States v. Warren, the Sixth Circuit vacated Mr. Warren's sentence and remanded his case for a resentencing before another judge where the prosecutor breached the plea agreement between the parties. Interestingly enough, this was Davian Warren's second win before the Sixth Circuit, having previously had his sentence vacated and remanded for resentencing where the district court imposed a substantively unreasonable upward variance. United States v. Warren, 771 F. App'x 637 (6th Cir. 2019).

At his resentencing, Mr. Warren's counsel argued that the Court should honor the plea agreement as reflective of the will of the parties and impose a sentence subject to its terms. In response, the government advised it wanted to "clarify" something brought up by defense counsel but indicated it did not intend to violate the plea agreement. The government then asserted that it did not have all of the information relating to Mr. Warren's prior convictions at the time it entered its plea agreement, and that it "quite probably would have made different recommendations had it known that information." 

The defense objected, arguing that the prosecutor's remarks constituted a breach of the plea agreement and that Mr. Warren was entitled to specific performance of the plea agreement. The district court disagreed and stated the government's remarks were simply clarification. The district court again imposed an upward variance in Mr. Warren's case.

Writing for the majority, Judge Nalbandian noted, "We treat plea agreements like contracts" using the traditional principles of contract law. The government's remarks "brought a variance forward by implication - the remark case doubt on the adequacy of the Guidelines range and injected reservations about the plea agreement itself." As a result, the Sixth Circuit held, "The government cannot escape its duties under a plea agreement with a wink and a nod." It cannot suggest "in any way" that a variance is appropriate. As a result, Mr. Warren was entitled to a resentencing before a new judge.

Judge Nalbandian also wrote a separate concurring opinion to advocate for reviewing governmental plea breaches for harmlessness in the future. Because the government conceded the issue of harmlessness, the question is left open for another day.

Congressional Appropriations Riders and Malum Prohibitum: A Medical Marijuana Conundrum

In 2008, Michigan became part of a nationwide trend when it legalized medical marijuana. The Michigan Medical Marijuana Act ("MMMA") allows "caregivers" to possess up to 2.5 ounces of usable marijuana and cultivate up to twelve marijuana plants per patient. Similarly, patients without caregivers may possess and cultivate the same amounts.

Although marijuana remains illegal under the federal Controlled Substances Act, in 2014, Congress attached a rider to one of its appropriations bills called the Rohrabacher-Faff Amendment, or "Section 538," which prohibited the DOJ from using any of the funds appropriated under the bill to prevent certain states from implementing their medical marijuana programs.

Enter Daniel Trevino. Trevino was the founder and sole owner of Hydro World, LLC ("Hydroworld") in Michigan. Although it originally sold fertilizer and indoor growing equipment, the company began selling medicinal marijuana after Michigan voters enacted the MMMA. The problem for Trevino, the Government alleged, was that while he was registered "patient" under the MMMA, he was not a registered "caregiver," nor could he be since he had a previous felony drug conviction. A federal grand jury subsequently charged Trevino with nine substantive marijuana offenses and one count of conspiracy to manufacture, distribute, and possess marijuana with intent to distribute. Prior to trial, Trevino moved to quash the indictment, alleging the Section 538 rider prohibited the Government from proceeding against him. After the district court denied his motion, a jury convicted him of all ten counts, and the district court sentenced him to 188 months in prison.

 In a published opinion, the Sixth Circuit affirmed Trevino's conviction and sentence. Turning to Trevino's claim that the Section 538 rider barred his prosecution, the Court held it did not need to decide whether the rider prohibited Trevino's prosecution because it found that he had not complied with the MMMA in the first place. He conceded he could have never registered as a caregiver under the Act because he had a previous felony drug conviction. The Act also did not protect him as a patient because it only pertained to marijuana-related activity aimed at "treat[ing] or alleviat[ing] the patient's serious or debilitating medical condition or symptoms of [that] condition" -- a condition Trevino never demonstrated he had.

The Court next addressed Trevino's claim the Government presented insufficient evidence to convict him of the conspiracy charge, citing the Sixth Circuit's 1924 decision in Landen v. United States. In Landen, the Sixth Circuit reversed the convictions of wholesale druggists who were convicted of selling intoxicating liquor in violation of the National Prohibition Act. In this case, the Sixth Circuit recognized a narrow exception to the general rule every law student learns: "ignorance of the law is no excuse." As to the Landen defendants, the Court held ignorance of the law provided a defense: (a) where the act at issue is "not inherently wrongful" or malum prohibitum; (b) where the charging statute is ambiguous; (c) where "there is good reason" for the conspirators to think that the planned act is not illegal; and (d) where the accused acts in the actual belief, "supported by good-faith advice of counsel," that the act is lawful.

For Trevino, however, ignorance of the law did not provide a defense. The Court concluded that, unlike the statute at issue in Landen, the CSA was not ambiguous: marijuana is clearly listed as a controlled substance. It also held Section 538 rider also did not alter the CSA's language to make it ambiguous. Finally, the Court noted that, even if Trevino could rely on the Section 538 rider, his conspiracy began in in 2010 -- four years before Congress passed the rider. The limited exception noted in Landen thus did not apply.

The Court also held the the district court did not abuse its discretion in denying the motion to withdraw filed by Trevino's counsel only thirteen days prior to his trial. The Court held the district court correctly analyzed the four-factor test for granting a motion to withdraw as set out in United States v. Steele.

At trial, Trevino objected to the Government's use of summary charts to prove the quantity of marijuana involved, arguing it was inadmissible hearsay. The Court disagreed, holding the underlying records supporting the summaries were admissible as business records under FRE 803(6).

Finally, the Court rejected Trevino's procedural and substantive challenges to his sentence. It held the district court did not err in refusing to grant him credit for acceptance of responsibility because he made the Government satisfy its burden of proof at trial and expressed "defiance" toward federal marijuana prohibitions. The Court also rejected his claim that his sentence was substantively unreasonable, holding he failed to rebut the presumption that his within-Guidelines sentence was unreasonable. 

Court Upholds Broad Appellate Waiver Provision...Again

Binding plea agreements are increasingly rare today, which leaves many defendants to the district court's discretion at sentencing. The converse is true for appellate waivers. In the author's experience, the Government is seeking appellate waivers, either fully or in part, at an increasing rate in plea negotiations.

In United States v. Hollins-Johnson, the Sixth Circuit again considered the scope of an appellate waiver in a written plea agreement. In this case, the district court accepted Ms. Hollins-Johnson's written plea agreement wherein she agreed to plead guilty to a multi-count indictment. In her plea agreement, she agreed to waive her right to appeal her sentence so long as it did not exceed the statutory maximum. 

At sentencing, the district court sentenced Ms. Hollins-Johnson below the applicable statutory maximums for each of her offenses. She subsequently appealed her sentence, arguing the district court erred in denying her request for home confinement and her request to arrange her sentence so she and her husband (who was apparently also indicted) would not face incarceration at the same time.

After Ms. Hollins-Johnson filed her initial brief, the Government moved to dismiss her appeal, citing the appellate waiver from her plea agreement. Ms. Hollins-Johnson responded by arguing that the waiver was ambiguous and that she did not waive her right to challenge the means in which she had to serve her sentence. The Court disagreed, noting that the waiver provision was not ambiguous, and, since the district court did not sentence her in excess of the applicable statutory maximums for her offenses, the plea agreement's appellate waiver provision barred her appeal.

The Court likewise held the Government did not forfeit its dismissal argument for filing it after Ms. Hollins-Johnson filed her initial brief. An appellate waiver, the Court held, was merely a "claim-processing rule."

Absent binding plea agreements, defendants place their sentences squarely in the hands of district judges. In doing so, they should carefully evaluate whether they also wish to waive their ability to appeal the judges' decisions, as Ms. Hollins-Johnson did.

When Congress says "and" they mean "and." And that likely means safety-valve relief for quite a few.

        In United States v Lopez, the Ninth Circuit—with an assist from a member of the Sixth—confirmed that the First Step Act opened the so called "safety valve" a lot wider. The result is sentencing relief to Mr. Lopez, and the chance of more relief for others down the line.

        Normally, mandatory minimums mean exactly what they say: a minimum amount of time in prison that a judge has no choice but to impose upon conviction. But Congress has long provided relief for some individuals convicted of certain controlled-substance offenses. Known as the safety valve, 18 USC § 3553(f) sets out a few situations where a judge may exercise her discretion to depart from a mandatory minimum. 
       Prior to the First Step Act, the safety valve mostly stayed shut. To make a long story short, the safety valve was not an option if an individual had more than one criminal-history point. 

        But in the First Step Act, Congress tweaked the language and said the safety valve should open so long as an individual did not have “(A) more than 4 criminal history points ... (B) a prior 3-point offense ... and (C) a prior 2-point violent offense.” 18 USC § 3553(f)(1)(A)–(C) (emphasis added).
        Enter Mr. Eric Lopez. A CBP agent found Mr. Lopez in possession of narcotics. Charged and convicted on one count of importing more than 50 grams of methamphetamine, 21 USC § 952; 21 USC § 960, Mr. Lopez faced a five-year mandatory minimum. But Mr. Lopez had only one relevant prior conviction: a decade-plus-old arrest for vandalism. Somehow, Mr. Lopez served 13-months for spray painting something onto a building, making that vandalism a 3-point offense under the guidelines.
        But taking notice of the change to the safety valve’s plain language, the district court believed the new language to be somewhat ambiguous and gave Mr. Lopez the benefit of the doubt. The judge opened the valve and gave Mr. Lopez 4 years instead of 5.
The government appealed, though they conceded quite a bit of ground to Mr. Lopez.
        The Ninth Circuit saw no ambiguity in the “and” in § 3553(f)(1). If you really want a primer on how to run a plain language analysis in today's federal courts, check out Lopez, 998 F.3d at 436-437. To figure out what “and” means, the panel pages through Scalia & Garner’s greatest hits, a lot of dictionaries, and a 1990s Senate Legislative Drafting Manual. It’s impressive.
        The panel concluded that when Congress puts three items in a list and connects those three items with the word “and” the result is a list of three conditions. And all three conditions must be satisfied. Carry that rule over to the safety-valve statute, and the valve opens unless an individual has (1) more than 4 points; (2) a prior 3-point offense; and (3) a prior 2-point violent offense. 
        Having satisfied only one of those three conditions, that 3-point vandalism, Mr. Lopez prevailed. The panel affirmed the district court's decision to give four years instead of the mandatory five. And this published opinion makes plain the valve is very likely open for many more going forward. United States v. Lopez, 998 F.3d 431 (9th Cir 2021).


               An offense with a mens rea of recklessness does not qualify as                                 a violent felony under the Armed Career Criminal Act (ACCA).          

          In Borden v. United States, 593 U.S. ___ (2021), the Supreme Court held that an offense is not a “violent felony” under the ACCA’s elements clause (18 U.S.C. §924(e)(2)(B)(i)) if it only requires a mens rea of recklessness.

          Charles Borden pleaded guilty to being a felon-in-possession of a firearm (18 U.S.C. §922(g)) and the government sought an enhanced sentence under the ACCA. Mr. Borden’s Tennessee conviction for reckless aggravated assault was used as one of the three predicates for the ACCA enhancement. That crime is defined as recklessly committing an assault and either causing serious bodily injury to another or using or displaying a deadly weapon. Slip Op. at 3.

          Mr. Borden argued in district court that the offense was not a violent felony under the ACCA’s elements clause because a conviction could be based on a reckless mental state. He contended that “only purposeful or knowing conduct” met the ACCA’s elements clause requirement for the use of force “against the person of another.” Slip Op. at 3. The district court held that reckless offenses qualified as violent felonies and the Sixth Circuit affirmed citing United States v. Verwiebe, 874 F.3d 258 (6th Cir. 2017).

          An offense is a violent felony under the ACCA’s elements clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. §924(e)(2)(B)(i). Writing for a plurality in Borden, Justice Kagan explained that the “critical  context  here  is  the  language  that ‘against another’ modifies—the ‘use of physical force’” and the ‘“use  of  force’  denotes  volitional  conduct.” Slip Op. at 9. Thus, the ACCA’s elements clause “covers purposeful and knowing acts, but excludes reckless conduct[.]” Id. at 10.

          The Borden plurality distinguished Voisine v. United States, 579 U.S. 686 (2016) because of the textual difference between the statute at issue in that case and the ACCA’s elements clause. Slip Op. at 21. The ACCA’s elements clause mens rea requirement “does not come from the word ‘use.’” Id. Rather, it comes from the phrase “against the person of another” which is the ‘“critical’ text for deciding the level of mens rea needed.” Id. at 21-22. Such an offense “do[es] not require, as ACCA does, the active employment of force against another person.” Slip Op. at 23. Since Mr. Borden’s ACCA enhancement was based on an offense that required a mens rea of recklessness, the judgment of conviction was reversed.  

          Justice Thomas concurred in the judgment. He found that Mr. Borden’s reckless aggravated assault conviction was not encompassed in the ACCA’s elements clause. In his view, a reckless crime “does not have as an element the ‘use of physical force’ because that phrase ‘has a well-understood meaning applying only to intentional acts designed to cause harm.’” Thomas, J., concurring in judgment at 2.

          Justice Thomas noted that Mr. Borden’s reckless aggravated assault conviction would have fallen within the ACCA’s residual clause which was held to be unconstitutionally vague in Johnson v. United States, 576 U.S. 591, 597 (2015). Thomas, J., concurring in judgment at 2. Although Justice Thomas believed Johnson was wrongly decided, id., at 3, he followed its precedent. Id. at 5.

          In dissent, Justice Kavanaugh argued that “the ordinary meaning of the statutory phrase ‘use of physical force against the person of another’—just like the phrase ‘use of physical force’—encompasses reckless offenses.”

          Congratulations to AFPDs Erin Rust and Jennifer Coffin and the rest of the Borden team for their superb work in Borden.


    A confidential informant’s credibility can be corroborated with a controlled buy

          An affidavit for a state search warrant for the residence of Rafael Moore was supported by background information obtained from a confidential informant. The affidavit also described a controlled buy between the informant and Mr. Moore. A search of the residence revealed firearms, drugs and material used to facilitate drug trafficking.

          Mr. Moore argued in district court that the search warrant affidavit failed to show the informant’s reliability. After his suppression motions and request for an evidentiary hearing were denied, he entered a conditional guilty plea (Fed.R.Crim.Proc. 11(a)(2)) to drug and firearm charges and reserved the right to appeal the suppression ruling. See United States v. Moore, --- F.3d --- (6th Cir. 2021).

          On appeal, Mr. Moore argued that the search warrant affidavit failed to adequately show the informant’s reliability and that “the informant’s tip was insufficiently detailed.” Slip Op. at 5. The Sixth Circuit, however, affirmed the district court’s ruling. The court noted the frequency with which information from confidential informants is used to support search warrants and that such information is often based on hearsay statements. The court explained that “an affidavit that both details an informant’s tip and describes a controlled drug purchase with the informant provides sufficient corroborating information to uphold a finding of probable cause.” Slip. Op. at 4.

          The Sixth Circuit said a search warrant affidavit does not have to include express attestations regarding an informant’s reliability “if it sufficiently details a controlled buy that supports the  informant’s  credibility.” Slip Op. at 5. Moreover, “a search is permissible based on an informant’s bare assertions if law enforcement can independently corroborate the informant’s credibility.” Id. In the court’s view, a single controlled buy “can be sufficient to establish probable cause to believe that evidence of drug trafficking is present at the purchase location.” Slip Op. at 4. The most critical factor in Mr. Moore’s case was that “the affidavit detailed a controlled buy at [his] residence between the informant and [him].” Slip Op. at 5.

          As a final note, the court pointed out that in order to obtain an evidentiary hearing on a suppression motion it is not enough to merely allege that the facts in an affidavit are insufficient to establish probable cause. Rather, the defendant “must set forth sufficiently definite, specific, detailed, and non-conjectural” reasons for why contested factual issues cast doubt on a search’s validity.” Slip Op. at 7 (citation and internal quotation marks omitted).