Articles Posted in Drug crimes

In U.S. v. Chitwood, the defendant pled guilty to possession with intent to distribute methamphetamine, and was sentenced to 188 month because the federal district court found Chitwood was a career offender under sentencing guideline §4B1.1(a). Under this provision a defendant with two or more drug offense or a crime of violence will be subject to a higher sentencing guidelines range. The sentencing court found he had two prior crimes of violence convictions making him eligible to be sentenced as a career offender. One of the two convictions was a Georgia conviction for false imprisonment statute. Chitwood challenged and argued the crime was not a crime of violence under the categorical approach because there was no physical force. While this case took place in Georgia, this is a common issue in Miami where Florida has a false imprisonment offense.

Under 18 U.S.C. §4B1.2, the career offender provision of the sentencing guidelines, a prior offense is a crime of violence if the offense:

1) has as an element the use, attempted use, or threatened use of physical force against a person,

Pertuz-Pertuz pleaded guilty to a drug trafficking on the high seas. Specifically, his offense involved a conspiracy to distribute five or more kilograms of cocaine while aboard a vessel subject to the U.S. jurisdiction, in violation of Title 46 U.S.C. §70503(a)(1). In U.S. v. Pertuz-Pertuz, the 11th Circuit said the defendant was not eligible for the safety valve sentence reduction. Congress enacted 18 U.S.C. §3553(f), the safety valve statute, giving defendants relief from the mandatory minimum penalties found under the federal drug laws. If the defendant met the criteria, he could receive a reduction of his sentencing guidelines range and receive a sentence below the mandatory minimum sentence. To qualify, the defendant must have no criminal convictions, no leadership role, and must not possess a firearm as part of the offense.

At his sentencing, his guideline calculation which the sentencing judge adopted gave him a two-point reduction under §5C1.2(a)(1-5) for qualifying under the safety valve. He also received a three-level reduction for accepting responsibility and timely notifying the authorities of his intent to plead guilty. The language of §70503 refers to §960 for the penalty provision when there is a §70503 violation. Normally a defendant who meets the criteria set forth in the safety valve statute would be eligible for an additional two level reduction in the sentencing guidelines. The safety valve statute specifically states that the safety valve provision applies only to the five specified offenses listed in §3553(f).

The statute Pertuz-Pertuz was charged with and to which he pleaded guilty is not listed in the safety valve statute. The sentencing court denied the Defendant’s request for a safety valve reduction because §3553(f). Without the safety valve relief, Pertuz-Pertuz faced a 10 year mandatory sentence because his offense involved trafficking in five or more kilograms of cocaine. Though the defendant’s guideline range would be 108-135 months in prison with safety valve relief but because the sentencing court found the safety valve did not apply to the §70503, he faced the 10 year penalty of 21 U.S.C. §960.

In U.S. v. Miranda, defendant Miranda negotiated with an undercover agent to purchase some firearms in exchange for a quantity of heroin. Miranda expressed a strong desire to obtain the firearms right away and he and the undercover agents agreed to exchange 4 handguns and 3 machine guns for 57 grams. Miranda would not even accept money for partial payment; He insisted on a firearm. Miranda was charged with several counts, most relevant was possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A).

Miranda appeals the denial of his motion to dismiss and motion for judgment of acquittal, claiming that the possession of the firearms was not in furtherance of a drug trafficking offense. Miranda relied on Watson v. United States and United States v. Montano, two Supreme Court finding passive receipt of firearms did not further a drug trafficking offense. In each of those cases, the Supreme Court said that where the agents bartered for drugs by offering a firearm, it was the agents who were using the firearms and not the defendant.

The 11th Circuit did not agree, basing its decision on the plain language of the statute and other decisions of the Supreme Court and other circuits. The charge here involved the “possession” element, which the Supreme Court found was different in this context and “use” connoted more than mere possession. The language of 924(c)(1) makes it an offense for a person who “in furtherance of a drug trafficking crime, possesses a firearm. Earlier 11th Circuit decisions concluded that Congress sought to address the inherent dangers of having firearms in the proximate area of drug transactions when their presence was intended “to advance or promote the criminal activity.” Other 11th Circuit decisions have taken a broad view of how possessing a firearm is in furtherance of a crime to include any set of facts when the firearm helped, furthered, promoted or advanced the drug trafficking. The 2nd Circuit has agreed. “So long as the prosecution offers proof of some nexus between the firearm and the drug selling operation, the defendant is subject to enhancement of his sentence under section 924(c)(1)(A).”

In U.S. v Webb, the defendant pleaded guilty to possessing a firearm as a convicted felon. He was arrested when he was stopped by police en route to meet an informant for a drug purchase. Police found cash and a 9mm semiautomatic handgun. Webb was charged with attempted drug possession and possession of a firearm by a convicted felon but in his plea to the gun possession counts the drug counts were dismissed.

This is how his sentencing guidelines were calculated by the sentencing court for this conviction. First, the court looked at USSG §2K2.1, the guidelines for the firearm offense. A four level enhancement applies for possession of the firearm in connection with a drug offense giving him a level 18. Under 2K2.1, if the defendant possessed the weapon in the attempted commission of another offense, the court must calculate the offense level under 2X1.1, which was the drug offense 2D1.1, and then apply the greater of the two offense levels. The fact that Webb was not convicted of a drug offense is irrelevant because the Guidelines commentary states that another offense means “any offense” regardless of whether criminal charges were brought or a conviction obtained. The drug weight raised the offense level to 26. Pursuant to 2D1.1(b)(1) there is a 2 level increase for possession of a firearm during a drug offense for a level 28. Because 28 was higher than the range calculated under 2K2.1, the range under 2D1.1 applied, giving him a range of 70 to 87. Webb challenged the 2 level increase for possession of the firearm because it amounted to double counting. He claimed that his range for the drug offense was higher because of the firearm enhancement.

The 11th Circuit upheld the enhancement and found applying 2D1.1(b)(1) did not result in double counting for the firearm. Double counting occurs when one part of the guidelines increase the punishment for a harm that has been fully accounted for by the application of another part of the guidelines. The plain language of the guidelines shows the Sentencing Commission intended for the enhancement to apply. Section 2K2.1 directs the court to apply the higher of the adjusted offense level as calculated under 2K2.1 and 2X1.1. Section 2X1.1 directs the court to apply the guideline for the substantive offense when it includes “attempt” crimes. Here, 2D1.1 applies to attempted drug possession. The guidelines require the court to apply 2D1.1 in its entirety including the gun enhancement. In fact, the guidelines commentary confirms that the enhancement was intended in the case of a firearm possession.

In U.S. v. Perez, the defendants were charged with a Hobbs Act conspiracy for planning to rob a fictitious cocaine stash house in Miami. The Hobbs Act makes it a federal crime to conspire to commit a robbery that has some affect on interstate commerce. They were also charged with carrying a firearm in connection with the attempted robbery, and defendant Del Monte was charged with possession of a firearm by a convicted felon. In this case, the Informant (CI) tried to convince the defendants to rob a fictional cocaine stash house by explaining how they could pull it off with the cooperation of a disloyal drug courier who would pass on information about the location of the drug stash house so the co-conspirators could steal the drugs. He told the coconspirators that the stash house was guarded by armed guards. They discussed obtaining five guns including a machine gun. They decided to transport the weapons in a separate vehicle. The weapons were placed in a car driven by the CI while the coconspirators followed. When law enforcement stopped the cars, they found the guns in the CI’s car and stocking hats, pepper spray, and knives were found in the car driven by the defendants.

Defendants argued there is no evidence they had constructive possession of the firearms transported by the CI. The appellate court disagreed finding the evidence supports a reasonable conclusion that defendants:
1. had knowledge of the guns being transported to the robbery site in the other car, and
2. had intent that those guns be used by the coconspirators in the robbery of the fictional stash house.
The evidence shows the defendants were aware of the dangerous nature of the operations, i.e. robbing armed guards of 30 kilograms of cocaine and other undercover discussions by the coconspirators.

The appellate court found the evidence was sufficient to prove Del Monte constructively possessed the guns. The evidence required a showing Del Monte had the intention to later exercise dominion and control over the guns, whether personally or through others. In Del Montes’ car were found the stocking hats, which implicated him in the armed robbery, together with the intent of the coconspirators to use guns to overcome the guards in order to carry out the robbery.

Defense witness had the right to remain silent
The codefendants subpoenaed Rojas to a pretrial deposition but Rojas exercised his right to remain silent. The defendant asked the court to compel Rojas to answer questions by defendants counsel. The district court denied the request. The defendant argued the district court should have held a hearing to determine if Rojas had reasonable cause to refuse to answer counsel’s questions. The court found no abuse of discretion
for the district court to find that Rojas could plausibly fear his answers could lead to a perjury charge by the government.

Warrant for electronic surveillence was proper
The defendant moved to suppress all evidence obtained through court ordered electronic surveillance of calls to and from cell phones. The defendants argued that because the government had success in obtaining evidence prior to receiving permission to intercept electronically, the necessity requirement was not met. Even if the government possessed sufficient evidence to prosecute defendant prior to the wire tap, it only had limited knowledge of the full extent of his criminal activities and of the coconspirators activities.

Failure to address the defendant was error and new sentencing ordered
The sentencing allocution for one defendant was error because the district court did not address the defendant directly. The court directed its question about the defendant allocating to the attorney and not the defendant directly. The Court never got a response from the defendant, and the case was remanded for resentencing. The court found the defendant’s substantial rights were affected because there was a chance of a lower sentence under the sentencing guidelines.
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On October 4, 2011, the Eleventh Circuit Court of Appeals vacated U.S. v. Rojas decision. A majority of the judges on the Court have voted to rehear the case en banc. This means that the issue of whether the Fair Sentencing Act of 2010 (FSA) applies to defendants sentenced after the Act but whose offense occurred before the Act will now be resolved by the entire court.

In U.S. v. Rojas the Court held the FSA applies to the defendants convicted of a federal drug crime, who were sentenced after its enactment but who committed their offense prior to August 3, 2010, enactment date. By passing the FSA the court found that Congress intended to restore fairness to Federal cocaine sentencing. The legislation attempted to reduce the disparity between federal criminal penalties for crack cocaine and powder cocaine offenses by lowering the gram – penalty ratio from 100:1 to 18:1. It also raised the drug quantities that triggered mandatory minimums.

Rojas, charged in Miami with conspiracy to possess with intent to distribute 50 grams or more of cocaine base, pled guilty prior to the August 3, 2010 enactment. Because she conspired to distribute 71.8 grams of crack cocaine, she was facing the ten year mandatory minimum. After enactment of the FSA the amount triggering the ten year mandatory minimum was raised from 50 to 280 grams, she then faced a lower mandatory sentence of 5 years under the new law. Because her sentencing took place after the enactment, she wanted the new law to apply to avoid the pre-FSA 10 year mandatory minimum sentence.

In the panel decision, the appellate court ruled that the FSA should apply to those offences that occurred prior to enactment but who are sentenced afterwards. The appellate court rejected the government’s argument that the FSA is prohibited from applying to prior offenses under the Savings Clause unless the statute expressly provides.

Prior to Rojas, there was a contrary decision in U.S. v. Gomes, which held that the FSA is not retroactive to offenses committed prior to the FSA enactment. In Gomes the defendant’s offense took place before the FSA enactment and the sentencing took place prior to enactment. In Rojas the sentencing took place after enactment. Rojas court rejected the language in Gomes as dicta.
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