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June 2022 - Page 2

Federal Corner: June 2022

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While our lives were being upended by a pandemic, the Supreme Court and Congress have upended discrete aspects of federal sentencing that provide opportunity for forging new law that can help our clients. Other circuits have published decisions on three such issues: deference owed to Guidelines commentary, the criminal history bars in the new safety valve criteria, and whether prior marijuana convictions qualify as “controlled substance offenses.” The Fifth Circuit has not yet fully addressed these issues. Spot them, and potentially save your client significant time in prison.

  1. When the guideline commentary increases the advisory Guidelines range, rethink whether that commentary deserves deference.

The Third, Fourth, Sixth, and D.C. Circuits found that §4B1.2 controlled substance offenses do not include inchoate offenses. United States v. Nasir, 17 F.4th 459, 470 (3d Cir. 2021) (en banc); United States v. Campbell, 22 F.4th 438, 440 (4th Cir. 2022); United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019); United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018).1 They did so based on a recent Supreme Court decision regarding when to give deference to agency decisions: Kisor v. Wilkie, 139 S. Ct. 2400 (2019). This Kisor‑deference argument has the potential to save our clients from higher sentences that result from guideline commentary that is harsher than the guideline text.

What does an agency deference decision have to do with the Guidelines?

The text of the Guidelines comes into effect only after being submitted to Congress for disapproval or modification. See 28 U.S.C. § 994(p). In contrast, the Guidelines commentary is not subject to congressional review.

In 1993, the Supreme Court compared the commentary to “an agency’s interpretation of its own legislative rules.” Stinson v. United States, 508 U.S. 36, 45 (1993).

Unlike Guidelines text, which must be followed, the Supreme Court applied the then‑prevailing agency deference framework of Seminole Rock, also called Auer deference,2 and said that the commentary should be followed unless it is inconsistent with the Guidelines text. Id. at 43. Practically speaking, this meant the Guidelines commentary was almost always applied. So, we defense attorneys gradually were lulled into a routine of applying the commentary without question.

Decades later, in 2019, Kisor “awoke us from our slumber of reflexive deference” to the agency interpretation of regulations. Nasir, 17 F.4th at 472 (Bibas, J., concurring). Kisor “cut[s] back on what had been understood to be uncritical and broad deference to agency interpretations of regulations and explain[s] that Auer, or Seminole Rock, deference should only be applied when a regulation is genuinely ambiguous.” Id. at 470. Rather than reflexive deference, Kisor says “a court must exhaust all the traditional tools of construction” before deciding that a regulation is “genuinely ambiguous[.]” 139 S. Ct. at 2415 (cleaned up). “Doing so will resolve many seeming ambiguities out of the box, without resort to Auer deference.” Id. And even when the regulation is ambiguous, the agency interpretation only warrants deference when it is “reasonable,” “authoritative,” a product of its “substantive expertise,” and a “fair and considered judgment.” Id. at 2416‑18 (cleaned up).

Because Guidelines commentary is treated as an agency’s interpretation of its own legislative rules, several circuits have applied Kisor to the commentary. See Nasir, 17 F.4th at 471‑72. Doing so, they have found, for instance, the §4B1.2(b) text unambiguous, meaning there was no reason to resort to the commentary. Id.

The Fifth Circuit has not squarely addressed how Kisor affects deference to Guidelines commentary. One panel found that it was bound by precedent, United States v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997), to follow the §4B1.2 commentary adding conspiracy to the “controlled substance offense” definition. United States v. Goodin, 835 F. App’x 771, 782 (5th Cir. 2021). But the panel indicated that, if given a clean slate, it was inclined to agree with the Third Circuit. Id. at 782 n.1. That amounts to an en banc invitation in the right case.

United States v. Vargas, No. 21‑20140, may be such a case.3 A Fifth Circuit panel heard argument in Vargas in March 2022. Mr. Vargas argued Kisor had abrogated Stinson and that the panel was not bound by Lightbourn. But even if the panel does not agree, the en banc court or the Supreme Court may one day take the issue up and rule that deference is only due to the Guidelines commentary when the Guidelines text is “genuinely ambiguous.” Nasir, 17 F.4th at 471.

A shift to the limited Kisor deference for Guidelines commentary would mean courts would have to work harder to decide whether any given commentary should apply. See, e.g., United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021) (refusing to defer to the §2B1.1 commentary’s definition that “loss” for access device cards means $500 per card). And defense attorneys excel at working hard and using the complexity of issues to our clients’ advantage.

To recap:

  • The old: defer to Guidelines commentary unless inconsistent (Stinson).
  • The break: defer to agency interpretations only if regulation is genuinely ambiguous and interpretation warrants deference (Kisor v. Wilkie).
  • The possible  new: defer to commentary only after exhausting statutory construction tools to determine whether the Guidelines text is ambiguous, and then defer to commentary only if When your client appears to not qualify for safety valve due to too many criminal history points, think again.
  1. We know that having too many criminal history points can disqualify a client from safety valve, and safety valve can be important because it allows a district court to sentence below the mandatory minimum in certain drug cases.4 18 U.S.C. § 3553(f). The question is how many criminal history points is too many.

It used to be more than one criminal history point disqualified a client. 18 U.S.C. § 3553(f)(1) (2018).

Then came the First Step Act of 2018. It changed the criminal history requirements so that a defendant remains eligible if:

the defendant does not have‑‑

  1. more than 4 criminal history points, excluding … 1‑point offense[s]…;
  2. a prior 3‑point offense…;
    and
  3. a prior 2‑point violent offense[.]
    § 3553(f)(1).

In United States v. Lopez, 998 F.3d 431 (9th Cir. 2021), the Ninth Circuit held that the “and” in the new safety‑valve provision means “and.” In other words, a defendant’s criminal history points only make him ineligible for safety valve if he has more than 4 criminal history points excluding 1‑point offenses, a 3‑point offense, and a 2‑point violent offense. If a defendant only has a 3‑point offense and a 2‑point nonviolent offense, he would still be eligible. The Government filed a petition for rehearing en banc in Lopez in August 2021 that is pending.

A panel of the Eleventh Circuit initially ruled the opposite way (finding the “and” is disjunctive) but then vacated that opinion when it granted rehearing en banc. United States v. Garcon, 997 F.3d 1301 (11th Cir. 2021), reh’g en banc granted, opinion vacated, 23 F.4th 1334 (11th Cir. 2022). The Government filed its en banc reply brief in Garcon in May 2022.

The Fifth Circuit heard oral argument on this issue in February 2022 but has not yet issued a decision. United States v. Palomares, No. 21‑40247 (5th Cir.).5 Some district courts in the Western District of Texas have sided with Lopez and imposed sentences below the mandatory minimum sentence. Maybe you can also convince a court that “and” means “and.”

To recap:

  • The old: no safety valve if more than 1 criminal history point.
  • The break: the First Step Act of 2018 amended the safety valve
  • The possible new: only defendants who have more than 4 criminal history points excluding 1‑point offenses, a 3‑point offense, and a 2‑point violent offense are ineligible (Lopez).
  • Or at least: defendants who have more than 4 criminal history points excluding 1‑point offenses, a 3‑point offense, or a 2‑point violent offense are ineligible.
  1. If your client’s pre-2018 marijuana convictions are enhancing the sentence, consider whether those priors included hemp.

In United States v. Bautista, the Ninth Circuit held that a pre‑2018 Arizona marijuana conviction was not a §4B1.2 “controlled substance offense” (CSO). 989 F.3d 698, 703‑ 04 (9th Cir. 2021). As a result, Mr. Bautista’s §2K2.1 sentence of 30 months’ imprisonment was vacated for resentencing under the correct range of 15 to 21 months. Id. at 705. The Ninth Circuit followed these steps to reach the favorable result:

  1. Used substances listed in the federal Controlled Substances Act (CSA) to define “controlled substance” in guideline 4B1.2. United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012).
  2. Compared the controlled substance definition for the prior conviction to the §4B1.2 controlled substance definition that exists now at sentencing. See 18 U.S.C. § 3553(a)(4)(A) (ii); U.S.S.G. § 1B1.11.

The definition of “marijuana” at the time of the prior Arizona offense included hemp. At the time of sentencing for the new federal offense, the Agricultural Improvement Act of 20186 had removed hemp (cannabis with THC of 0.3% or less) from the “marijuana” definition. Thus, the prior Arizona conviction was broader than the §4B1.2 CSO definition because the former included hemp, and the latter did not.

In a recent unpublished Fifth Circuit decision, Judge Higginson indicated he thought the Bautista analysis was correct and should apply in the Fifth Circuit. United States v. Belducea-Mancinas, No. 20‑50929, 2022 WL 1223800, at *2 (5th Cir. Apr. 26, 2022) (Higginson, J., concurring).7 He thought the district court erred, albeit not plainly, by sentencing Mr. Belducea as a career offender based on pre‑ 2018 marijuana convictions. Id.; see also United States v. Abdulaziz, 998 F.3d 519, 524‑31 (1st Cir. 2021); United States v. Crocco, 15 F.4th 20, 23 n.3 (1st Cir. 2021); United States v. Williams, 850 Fed. App’x 393, 398 (6th Cir. 2021) (unpublished).

Some circuits do not define “controlled substance” in §4B1.2 as a substance in the federal CSA. See Crocco, 15 F.4th at 23 (describing circuit split). But the Fifth Circuit already incorporated the federal CSA in the materially similar drug trafficking offense definition of guideline §2L1.2. United  States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015) (adopting Leal- Vega). “Because the qualifying prior convictions in § 2L1.2 and § 4B1.2(b) are defined in substantially the same way, cases discussing these definitions are cited interchangeably[.]” United States v. Arayatanon, 980 F.3d 444, 453 n.8 (5th Cir. 2020) (cleaned up). Under the holding and reasoning of Gomez-Alvarez, Judge Higginson finds that the Fifth Circuit defines “controlled substance” in §4B1.2(b) with reference to the CSA. Belducea- Mancinas, 2022 WL 1223800, at *2 (Higginson, J., concurring).

Note: While Bautista and Belducea-Mancinas were in the context of guideline §4B1.2, the argument could apply to other recidivist enhancements or categorizations, such as Armed Career Criminal Act serious drug offenses, and the serious drug felonies that can enhance drug sentences. See, e.g., United States v. Hope, 28 F.4th 487, 504‑05 (4th Cir. 2022) (in the ACCA context).

To recap:

The old: the Controlled Substances Act defined “marijuana” as any part of the cannabis sativa L. plant, regardless of the amount of THC.

The break: the Agriculture Improvement Act of 2018 amended the “marijuana definition” to exclude hemp, which is any part of the cannabis sativa plant containing TCH of 0.3% or less.

The possible new: prior drug convictions for which the least culpable act involved hemp may not be §4B1.2 CSOs or other drug recidivist enhancements.

Shout Outs

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Kudos to Robert Pelton for his interview with CBS News, an article titled “Journalist Seeks Answers from a One Time Texas Attorney with ties to five Dead Men”, which was published this past
April. The article can be found online at cbsnews.com. Congrats, Robert!

Outstanding job to Roberto Balli, who had four Federal Cases dismissed in the first four months of 2022! Alien smuggling, gun smuggling, assault on a federal officer, and serious drugs. The
Government takes crime very seriously, but they will step back if the lawyer can show them that the evidence is not there! None of these cases were easy. Roberto stated that he is truly happy for his clients. Kudos to you, Robert!

Great work to JW Martin Hill for verdict in Madison County! The charge was aggravated sexual assault on an older white woman by a young black man. Ultimately, the outcome was NOT GUILTY! Hats off to you, JW!

A job well done to Danny Easterling, of Houston. He earned a victorious win at his murder jury trial, arguing self-defense. After his NOT GUILTY, he spent some time relaxing in the country.
Super work, Danny!

Congratulations to Mike Ware for being named as the 2022 recipient of the Frank J. Scurlock Award from the State Bar of Texas. This award honors an attorney who has provided outstanding pro bono work. This award recognizes Mike’s outstanding work leading the Innocence Project of Texas. Mike will receive the award at the Bar Leaders Recognition Luncheon on June 9th.

Good work to Bobby Mims and his partner, Mishae Boren, who received a 1-hour NOT GUILTY verdict! The bailiff told Boren that all of the women on the jury were against the state. They thought that the wife had started it and then caused the police to become involved. Their client is a noncitizen, but is a Legal Permanent Resident, so they felt they had to go to the mat for him. Fortune was in their favor.

From the Front Porch: Dealing with Marijuana in Rural Texas (and maybe everywhere else, too)

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Typical Scenario:

Defense lawyer to County Attorney: “Good morning, Henry, where’s the lab report on that little bit of green leafy stuff for my college kid?”
County Attorney: “Aw, hail, I don’t need a lab report.”
Defense lawyer: “Yes, you do.”
County Attorney: “Naw, I don’t. Deputy Bobby Joe has seen a whole bunch of marijuana; based on his training and experience, he can tell what’s marijuana and what’s not.”
Defense lawyer: “Well, we both know that idiot doesn’t know a Twinkie from a Moon Pie, and his training and experience don’t count now that hemp is legal.”
County Attorney: “Guess we’ll just have our Constitutional non‑lawyer County Judge decide that. He’ll be plenty fair, he learned everything he knows about the law from me and his Uncle John Bradley.”

Ever heard THAT before?! No kidding, we all have. But never fear. Below in a condensed form is a handy, printable/put it on your electronic device list of responses we think you can use to great effect. We have organized them by the law/testing, and by practicality.

We are not biochemists, we are lawyers, so this is not intended to be a scientific paper. For those of you who wish to dive deeper into the science, e‑mail Daniel Mehler at daniel@mehlercannabis.com for links to various excellent papers.

First to the law/testing, in no order of importance:

  1. Marijuana and hemp have the exact same scientific definition in our Marijuana is defined as Cannabis sativa L at Texas Controlled Substances Act (TCSA) Chapter 481.002. Hemp is defined as Cannabis sativa L at Texas Agriculture Code Section 121.001. The difference is that under the Agriculture Code definition of hemp the concentration of tetrahydrocannabinols must be “not more than 0.3 percent of the dry weight basis” or the substance is illegal. The term tetrahydrocannabinols is defined in the TCSA at Sec. 481.103.
  2. The old concept of “my training and experience” no longer works since the definitions have changed. We skeptics always doubted the officer had the required expertise to say it’s marijuana, but now that does not matter. Only a valid laboratory test can determine the amount of THC More on testing to follow.
  3. Cannabis sativa L is a very complex plant. The commonly used term THC is NOT a scientific term, it is one created by various legislatures including ours. The illegal stuff contains Delta‑9 Tetraydrocannabinol. The legal stuff contains Cannabinol (CBD) and not much Delta‑9 THC. The atomic composition of both is exactly the same ‑ C21H30O2 ‑ but those molecules are arranged slightly differently. These are called isomers, that is molecules with the same atomic composition with different structures. That is vitally important when it comes to testing.
  4. All cannabis plants, be they hemp or marijuana, contain molecules called a terpenes. Terpenes are the molecules that produce an aroma. There are thousands of them in nature. For instance, the terpene pinene gives pine cones its aroma. The terpene limonene gives a lemon peel its scent. These same compounds, terpenes, also give hemp and marijuana their distinct odor. There is no difference in the terpenes found in hemp or marijuana as they are both varietals of Cannabis sativa L.. This means that no human nor canine, cop or otherwise, can tell the difference between the smell of hemp versus marijuana.
  5. Testing of hemp and marijuana is fraught with problems.
    1. If a lab is testing cannabis with a Gas Chromatographi, with Flame Ionization Detection (GC‑FID), it is heating the cannabis with a flame. Heat changes molecules a bit and we already know the atomic composition of CBD and THC are the same. That little bit of change due to heat may turn a legal substance (hemp or CBD) into an illegal substance (marijuana or THC) in the lab as a function of the testing protocol.
    2. A liquid test without heat, High Performance Liquid Chromatography (HPLC) is a better testing methodology, but is still fraught with issues as cannabinoids are pushing the boundaries of what the science of chromatography is capable of.
    3. Only tiny samples are tested and loads of hemp or marijuana varies greatly in quality and chemical content, even between individual flowers from the same plant. The DPS has admitted in its manual entitled TPS Seized Drugs Manual on page 55 that the “1%” testing procedures cannot determine THC THC content is crucial to know. Was this high‑grade marijuana or hemp that came back slightly over the 0.3% threshold? Remember that intent matters in these prosecutions and that specificity in the testing is necessary to properly advocate for or inform our clients.
    4. How a defendant who gets his/ her case dismissed but wants the “hemp” returned is beyond the scope of this article.
    5. DWI due to marijuana and MTR’s due to “hot UA’s” are also beyond the scope of this article. Suffice it to say, however, there are very serious problems proving impairment due to marijuana use. Tolerance, wildly varying elimination rates, and what inactive metabolites mean are issues for another day.

Now to practicality and possible persuasive arguments, in no order of importance:

  1. “Come on, why not dismiss for Community Service? My client is going to get more ‘rehabilitation’ from helping out unfortunate folks than anything the court can do.” It can be actual community service or a contribution to the food The Code of Criminal Procedure at Article 42A.304(f) permits food bank/Veteran’s Programs contributions. Heck, in our little county (under 50,000) contributions can even be made to 501(C)(3) non‑profits.
  2. “Your docket is pretty crowded and it’s crowded with assaults, thefts, and the like. Let’s get rid of this ‘might be marijuana’ case so you can spend your time on the other cases.”
  3. “Speaking of theft cases, especially shoplifting, those are the ones that get you votes from your merchants. Spend your time making your merchants happy.”
  4. “Your County Commissioners may like fine money, but they don’t like delays, backed up cases, labs fees, jury trials, and all the other things that go along with court fights.”
  5. “When marijuana eventually gets de‑criminalized, we all know expunction of old cases is going to be part of the legislation. Why in the world would you waste time on a case that will go away in the future? De‑criminalization is a just a matter of when, not if.”
  6. “Many of your colleagues in the District and County Attorneys Association are refusing to even file these cases. They know the days of unlimited resources to prosecute are over. And they aren’t a bunch of liberal pot lovers, they are practical men and women… and so are you.”
  7. “My client is a college/high school kid/going into the military/comes from a good family, etc. Here are his transcripts/year book clippings/character references. Yeah, maybe sometimes he acts stupid, but you can’t fix that, so stop trying.”
  8. “If they ever figure out a way to test, it’s going to cause long delays and clog your docket even worse than it is now.”
  9. “Don’t try using that silly ‘unlicensed transportation’ stuff on me. We both know that the hemp law in Agriculture Code 122.101 is intended for growers not average folks.”
  10. And our favorite, surely to be true in rural areas as well as urban ones – “WHO REALLY CARES ABOUT MARIJUANA THESE DAYS? No one, is the answer, including you, Mr. Prosecutor! Be honest with me, we are old friends. It’s not much more than a revenue raising law now. Let this kid help out our less fortunate citizens with community service. You still look good, the locals get a benefit, he stays a student/employed person, and he is a bit wiser.”

We hope this article will bring you good outcomes. If it doesn’t, use it to make a solid record for appeal, waive your fee for the appeal, waste the prosecutor’s time on the appeal, and use your eventual victory to your advantage in the future. You will more than make up for the uncharged appellate fee!