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Archive | drug quantity

Tuesday, September 3rd, 2019

Second Circuit vacates a sentence as procedurally unreasonable because the district court’s “calculation of drug quantity” wasn’t supported by a preponderance of the evidence

Second Circuit vacates a sentence as procedurally unreasonable because the district court’s “calculation of drug quantity” wasn’t supported by a preponderance of the evidence: United States v. Burks, No. 18-1361-cr, __ F. App’x__, 2019 WL 4049857  (Aug. 28, 2019). 

In a summary order, the Second Circuit vacates and remands “for sentencing” because the evidence didn’t support the district court’s drug-quantity calculation.  United States v. Burks, 2019 WL 4049857 at *3.

Local police executed a search warrant at Burks apartment and recovered “1.21 grams of cocaine residue from various narcotics packaging and processing materials at the apartment and an adjoining unit.” Id. at *1. “In the Plea Agreement,” Burks admitted that, before the police search, he had “distributed cocaine in 1//2 ounce and one ounce amounts.” Id. And the drug quantity that “could be readily proven by the government” “was less than 50 grams,” resulting in a Sentencing Guidelines …

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Thursday, February 16th, 2017

Second Circuit Vacates Denial of Sentence Reduction

United States v. Melendez, No. 16-1019 (2d Cir. Feb. 16, 2007) (Leval, Calabresi, Carney).

In this summary order, the Circuit vacated the denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The Court ruled that the district court (Judge Hurley) clearly erred in deciding that the defendant (a client of Federal Defenders) was legally ineligible for a sentence reduction. Judge Hurley ruled that the defendant was ineligible because, at the original sentencing, conducted by Judge Platt, the court had found him responsible for 44.8 kilograms of heroin, a quantity that precluded him from receiving a sentence reduction. The Circuit held, however, that Judge Platt never adopted the PSR’s finding of 44.8 kilograms or otherwise made a specific quantity finding. The court merely said that the PSR’s range was “accurately computed,” which would have been true if the quantity was anywhere above 10 kilograms. Thus, the …

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Categories: 3582(c)(2), drug quantity, guideline

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Wednesday, May 4th, 2016

Second Circuit Affirms District Court’s Determination of Weight of Controlled Substance and Reliance on Acquitted Conduct

In United States v. Guerra, 14-1025, the Second Circuit affirmed by summary order the District Court’s methodology for determining the weight of oxycodone prior to sentencing.  The District Court’s finding after relying on “documentary medical and telephone records, recorded conversations, and witness testimony regarding the methodology of the scheme” was a permissible view of the evidence and, therefore, not clear error.

The Circuit also rejected Guerra’s argument that the District Court’s reliance on acquitted conduct rendered his sentence unreasonable, holding that it is well-established that a court can rely sentence on the basis of acquitted conduct that is proven by a preponderance of the evidence.…

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Categories: acquitted conduct, drug quantity

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Saturday, December 11th, 2010

What You Don’t Know Can Hurt You

United States v. Andino, No. 09-4694-cr (2d Cir. December 3, 2010) (Kearse, Calabresi, Wesley, CJJ)

In 2008, customs officials intercepted a package containing cocaine addressed to “Andino Jose” at an address in the Bronx. After a controlled delivery to that address, the recipient called defendant Andino, who picked up the package and brought it to an adjacent building, where he left it unopened.

Customs agents then placed him under arrest, and Andino admitted that he had been paid to pick up the package and transport it. He said that he knew the package contained drugs, but believed it contained marijuana, not cocaine.

At Andino’s trial, the government sought a jury instruction stating that the government would need to prove only that Andino knew the package contained a controlled substance – any controlled substance – and not specifically cocaine. Andino, on his part, wanted a charge requiring the government to prove …

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Categories: drug quantity, scienter, Uncategorized

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Tuesday, July 8th, 2008

CASH AS CACHE CAN

United States v. Jones, No. 05-5879-cr (2d Cir. June 24, 2008) (Leval, Cabranes, Raggi, CJJ)

In 2004, Jones was present in a “gatehouse” – an apartment used solely for the purpose of selling drugs – when Rochester police executed a search warrant. The officers found, inter alia, twenty-two grams of crack residue and $883 in cash hidden in the apartment. Jones admitted “selling a little.” Despite this admission, the jury convicted him only of simple crack possession.

At sentencing, the court held him accountable for possessing forty-seven grams of crack. This comprised the twenty-two grams of crack residue, plus an estimated twenty-five additional grams, which was based on the probable amount that Jones had sold to realize the $883.

The Appeal

Drug Quantity

On appeal, Jones argued, primarily, that it was unreasonable for the court to translate the money into drugs for the purposes of calculating drug quantity under the …

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Categories: discretion, drug quantity, sentencing, Uncategorized

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Tuesday, March 11th, 2008

Another Fine Meth

United States v. Tran, No. 05-5644-cr (2d Cir. March 10, 2008) (Sack, Sotomayor, Hall, CJJ)

Defendant Tran was stopped by customs officers while crossing the border from Canada, ostensibly to go to a casino in New York. Customs agents found several bags of pills hidden in the interior roof lining of his rented car, but Tran repeatedly denied knowing that the drugs were there.

There were more than 40,000 pills, weighing more than 10 kilograms. A chemical analysis of 29 of the pills revealed that they contained ecstasy (in concentrations ranging from 15 to 28%) and d-methamphetamine (in concentrations ranging from 5.6 to 6.9%). At trial, a DEA chemist testified that these tests accurately reflected the amount and percentage of the drugs in all of the pills.

Tran testified, and explained that he did not know that there were drugs in the car. He was convicted, and sentenced to 235 …

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Categories: charge, drug quantity, knowledge, sufficiency, Uncategorized

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