The court ultimately voted to hear the matter en banc, and it was argued and submitted to the en banc court on January 13, 2020.Last week, the en banc court requested further briefing, specifically:1. How do United States v. Feola, 420 U.S. 671 (1975), and its progeny in this Circuit, see, e.g., United States v. Hubbard, 96 F.3d 1223, 1229 (9th Cir. 1996); United States v. Baker, 63 F.3d 1478, 1491 n.16 (9th Cir. 1995), apply to the government’s burden of proving that a defendant is guilty of conspiracy under 21 U.S.C. § 846 for agreeing to commit an offense under § 841(a), (b)? The parties should address whether the requisite intent for conspiracy under § 846 is the same as the requisite intent for distributing a controlled substance under § 841(a), (b).

Benjamin Barry Kramer v. United States, 7th Circuit Court of Appeals No. 14-3049, 8/17/15Sticking with its decision in Suggs v. United States, 705 F.3d 279 (7th Cir. 2013), the Seventh Circuit holds that Kramer’s most recent habeas petition challenging a conviction that was not affected by his three previous petitions is a second or successive petition and Kramer therefore needed authorization to file the petition from the Court of Appeals under 28 U.S.C. § 2244(b)(3)(A).The complicated history of Kramer’s case, and the ultimate result here, well illustrate how even meritorious claims can get trapped in the morass of habeas procedural rules. Kramer was convicted in 1988 of conspiring to distribute marijuana in violation of 21 U.S.C. § 846 and engaging in a Continuing Criminal Enterprise (“CCE”) in violation of 21 U.S.C. § 848(b). Kramer’s § 846 conviction and sentence were vacated in 1998 after he filed a habeas petition based on Rutledge v. United States, 517 U.S. 292 (1996), which held that § 846 offenses are lesser-included offenses of § 848 CCE offenses.

4. See 21 U.S.C. § 846. 5.

issued its much-anticipated en banc decision United States v. Vargas, 21-20140. The Court was tasked with deciding how much deference courts should give commentary to the U.S. Sentencing Guidelines following the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019)—an opinion that limited judicial deference to agency interpretations. In a fractured decision, the Fifth Circuit held that Kisor does not extend to the Guidelines; rather, Stinson v. United States, 508 U.S. 36 (1993) continues to control without any alteration from Kisor. Thus, the current paradigm remains in the Fifth Circuit absent Supreme Court intervention: the Guidelines commentary is “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”Background – District Court & Appellate ProceedingsAndres Vargas pleaded guilty to conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§846, 841(a)(1) and (b)(1)(B). At sentencing, the government asserted that Vargas qualified as a career offender under §4B1.1(a) of the Guidelines because of his prior possession and conspiracy convictions, thereby subjecting Vargas to an enhancement to his criminal history category and offense level calculations.Vargas objected, asserting that he did not qualify as a career offender because the text of §4B1.2(b) of the Guidelines did not include inchoate offenses, meaning that his prior conspiracy convictions could not serve as predicate controlled substance offenses. Vargas recognized that the commentary to §4B.2 interpreted “controlled substance offense[s]” to include inchoate offenses, but asserted that after the Supreme Court’s holding in Kisor, the commentary could not be used to expand the scope of that text. The District Court overruled Vargas’s objection, and his sentencing range subsequently increased from a range of 100-125 months’ imprisonment to a range of 188-235 months’ impr

nly applies if the regulation in question is genuinely ambiguous. “[B]efore concluding that a rule is genuinely ambiguous,” the Court went on, “a court must exhaust all the ‘traditional tools’ of construction,” including careful consideration of “the text, structure, history, and purpose of a regulation.” If genuine ambiguity remains after careful consideration, a court may then defer to the agency’s interpretation, but only if that interpretation is reasonable.So far, the Third and Sixth Circuits and a panel of the Fourth Circuit have held that Kisor altered the deference afforded to the Guidelines’ commentary. On the other hand, a different Fourth Circuit panel, along with the First, Eighth, and Ninth Circuits, have held that Kisor’s holding does not affect deference. In Vargas, the Fifth Circuit will enter this brewing circuit split.District Court ProceedingsAndres Vargas pleaded guilty to conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§846, 841(a)(1) and (b)(1)(B). At sentencing, the government asserted that Vargas qualified as a career offender under §4B1.1(a) of the Guidelines, thereby subjecting Vargas to an enhancement to his criminal history category and offense level calculations. Specifically, the government asserted that Vargas’s prior convictions for possession with intent to distribute amphetamine and conspiracy to possess with intent to manufacture and distribute methamphetamine qualified as controlled substance offenses.Vargas objected, asserting that he did not qualify as a career offender because his prior conspiracy convictions did not serve as predicate controlled substance offenses. In support of his objection, Vargas pointed to the discrepancy between the Guidelines and the commentary to the Guidelines:Under §4B1.2(b) of the Guidelines, a “controlled substance offense” is defined as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manu

We have come a long way from the era when only criminal defense attorneys dealt with violations of cannabis laws. Today legalized cannabis is a burgeoning area of law that has many firms, large and small, trying to get a piece of the cannabis market.For years, the conservative risk management approach for attorneys seeking to advise clients in this arena was to comply with Rule 1.2(d) of the Rules of Professional Conduct. Rule 1.2(d) prohibits counseling a client to engage in criminal activity or assisting a client in such activity, but permits a lawyer to “discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law.” Compliance was necessary due to the fact that federal law criminalized (and still does) the manufacture, distribution, or dispensing of marijuana pursuant to the Federal Controlled Substances Act, 21 USC § 846. There is no Rule of Professional Conduct that provides guidance to lawyers who are faced with a client who seeks to do something permitted by state law but prohibited under federal law.Since then, both medical and recreational use of marijuana has been legalized in an increasing number of states and territories. This means more businesses, income, taxes, and legal advice from coast to coast. While still illegal under federal law, to date, 37 states, three territories, and the District of Columbia allow the medical use of cannabis products. 21 states, two territories, and the District of Columbia have enacted measures to permit cannabis for non‑medical adult recreational use. There are still 13 states that outlaw marijuana entirely. See the chart below for more detailed information.Chart from the National Conference of State Legislatures (NCSL), November 9, 2022. For more detailed information by state, visit https://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.The re

While most legal cannabis attention of late has focused on the high rewards of mega deals, the risks associated with state law noncompliance remains as high as ever. On July 30, 2021, the Sixth Circuit Court of Appeals affirmed marijuana and conspiracy charges and convictions against an individual for the manufacture, distribution, and possession of marijuana with intent to distribute, violations of the Controlled Substances Act, 21 U.S.C. §§ 841, 846, and simultaneously weighed in on the Blumenauer Amendment. The Amendment, commonly relied upon by state officials and their licensed cannabis operators, ostensibly prohibits the U.S. Department of Justice (“DOJ”) from prosecuting those in compliance with state medical marijuana statutes.

In cases involving alleged large-scale drug distribution (such as those currently under investigation), defendants can easily face multi-million-dollar fines and decades of federal imprisonment.Conspiracy to Distribute Drugs – Under 21 U.S.C. Section 846, defendants who participate in a conspiracy to distribute drugs can face the same penalties as those who are directly involved in the drugs’ distribution. In cases such as those currently under investigation, federal prosecutors frequently use conspiracy charges to cast a wide net and target multiple defendants.

In doing so, the district court held that “it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.” The district court reasoned that because Davis was convicted for a violation of 21 U.S.C. §846 as it relates to 21 U.S.C. §§841(a)(1), 841(b)(1)(B), and 851, and because the penalties associated with those statutes were modified by Section 2 or Section 3 of the Fair Sentencing Act, Davis had been sentenced for a “covered offense” under the First Step Act. The government appealed.

Although this case arises in the context of the government’s use of a prior felony information, the Court has employed the same type of categorical analysis we see in cases brought under the Armed Career Criminal Act.BackgroundIn April 2018, Jeremy Thompson pleaded guilty to conspiracy to distribute and possess with intent to distribute marihuana, in violation of 21 U.S.C. §846. The government alleged that the offense involved more than 100 kilograms of marihuana, which would normally carry a 5-year mandatory minimum.