U.S. v. Rowe — criminal — reversal — Fisher

It is a crime to distribute, or to possess with intent to distribute, illegal drugs, and the distribution or possession of larger quantities triggers mandatory minimum sentences. For heroin, distribution or possession of 100 grams or more means a 5-year mandatory minimum, and 1000 grams means a 10-year mandatory minimum.

But how are those drug quantities calculated? Suppose a defendant acquires 600 grams of heroin, sells it all at once, then does it again. Are the two quantities added together, 600+600=1200, such that the defendant gets the 1000-gram 10-year mandatory? And does the answer depend on whether the crime was distribution (not a continuing offense) or possession (a continuing offense)?

Drug crimes are the most common federal crimes, so the answers to those questions matter a lot to lots of criminal defendants.

Today, in a major criminal-appeal ruling, the Third Circuit vacated a defendant’s drug conviction, holding that convictions and their resulting mandatory minimum sentences under 21 U.S.C. § 841(b)(1) must be based on discrete distributions or possessions that exceed the drug-quantity thresholds, not a series of smaller quantities aggregated to meet the quantity threshold.

The distribution holding is important in the Middle District of Pennsylvania, where aggregation of sale quantities to trigger mandatory minimums has been a longstanding outlier practice. The possession holding will apply more broadly. The key passage: “possession of 1000 grams of heroin begins when a defendant has the power and intention to exercise dominion and control over all 1000 grams, and ends when his possession is interrupted by a complete dispossession or by a reduction of that quantity to less than 1000 grams.”

The court vacated the defendant’s conviction and remanded for resentencing for distribution and possession of 100 grams with the government barred from offering new drug-quantity evidence on remand. (The district court had calculated the defendant’s sentence under the Sentencing Guidelines based on over 10 kilograms, relying on evidence that had been excluded at trial and not introduced at sentencing, which on appeal the the government conceded was error.)

Joining Fisher were Smith and McKee. Arguing counsel were Peter Goldberger for the defendant and Stephen Cerutti II of the MDPA US Attorney’s office for the government.

This was already Goldberger’s second major Third Circuit win of 2019, following Piasecki; not surprisingly, Goldberger recently was honored by a publication based on peer voting as lawyer of the year for appellate practice in eastern Pennsylvania. His co-counsel on the case was Goldberger’s long-term senior associate and former Third Circuit staff attorney Pamela Wilk.