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June 7, 2022

Notable cert petition (and amicus) urges SCOTUS to take up drug quantity calculations review standards

Long-time readers know that I have long complained about how the Supreme Court sets its criminal docket and repeatedly fails to take up many consequential sentencing issues (except in capital and ACCA cases).  But hope springs eternal, and issues needing SCOTUS attention are never ending.  To that end, I want to flag a recent cert petition, which has new amicus support, and is scheduled to be considered by the Justices this week.  The case is Tucker v. United States, No. 21-7769, coming from the DC Circuit, and here is an excerpt from the cert petition:   

A fourth of the federal cases reported to the United States Sentencing Commission are narcotics prosecutions.  The issue of drug quantity frequently heavily influences the element of Relevant Conduct which factors into those offenders’ Sentencing Guidelines’ Base Offense Levels.

After being convicted by a jury for a federal narcotics conspiracy charge, Petitioner unsuccessfully contested the district judge’s approach to determining the quantity of drugs for which he was being held accountable.  On appeal, Petitioner contended that the trial judge’s methodology should be reviewed de novo.  The Circuit Court reviewed for clear error, which is the standard followed in three courts of appeals.  Conversely, five Circuits apply a de novo standard of review; the process employed by two other Circuits is equally rigorous.  This distinction can make a difference: courts using the more vigorous standard of review have reversed sentences flowing from methodologies that depended more on conjecture than recognized criteria....

Deciding the standard of appellate review is a matter for this Court.  Thus understood, the question presented is whether the Court should resolve the circuit conflict by requiring de novo review for contested methodologies used to determine Base Offense Levels in narcotics prosecutions.

This amicus brief filed in support of the petition frames the issue this way:

Whether the methodology used by a district court to determine drug quantity for purposes of sentencing for drug trafficking offenses should be reviewed de novo, under a heightened standard, or only for clear error, the standard followed by D.C. Circuit below.

Given that nearly 20,000 federal drug cases are sentenced every year — that's roughly 400 each and every week — it is hard to think of a federal sentencing issue much more consequential than the calculation and review of drug quantities.  Fingers crossed this case might capture the attention of at least four Justices.

Just a very few of many prior related posts newer and older:

June 7, 2022 at 09:42 AM | Permalink


Not being in a guideline state and not having a federal practice, I am not sure I understand the splt. Why is this not simply a mixed issue of fact and law with the law part (what should be included in the measurement) being reviewed de novo and the fact part (what is the weight of what is being measured) being reviewed to see if it is supported by the evidence? That would be what would happen on appeal in my state for any dispute about those offenses in which weight is an element. For example, in my state, if we had a defendant with two baggies, one of which contained a substance that was partially methamphetamine and the other containing cutting powder, the appellate court would find that only the baggie with methamphetamine counted but that the full weight of that substance counted (rather than trying to calculate how much pure methamphetamine was in the mixture) and would defer to the trial court/jury to determine whether to believe the testimony about the weight of the mixture in the baggie with the mixture containing methamphetamine.

Posted by: tmm | Jun 7, 2022 10:02:41 AM

Drug quantity has long been a major issue in Federal criminal law, for many reasons. For decades, all 12 Circuits that hear Federal criminal appeals had held that drug quantity was not an element of the offense charged in the indictment. Then, the U.S. Supreme Court disagreed with those 12 Circuits and held that drug quantity is an element of the offense being charged in the indictment. To avoid vacating thousands of drug convictions, the Supreme Court reversed a 120 year old precedent that held that omitting an element of the offense from the indictment is a jurisdictional defect. Since that holding, omitting elements of the offense from an indictment is subject to harmless error analysis. Sometimes, the Government uses evidence of drug quantity that comes from affidavits and statements that are not subject to cross examination at trial; the right to confront and cross examine ends with the jury's verdict, and does not extend to the sentencing hearing. And then there is the issue contained in the Certiorari Petition that you reference: What is the proper standard of review for drug quantity on appeal. Will it never end?

Posted by: Jim Gormley | Jun 8, 2022 1:13:27 PM

See, United States v. Cotton, 535 U.S. 625 (2002), over-ruling Ex Parte Bain, 121 U.S. 1 (18878). Cotton may be the only time in U.S. legal history that the Supreme Court has ever over-ruled the unanimous position of all 12 Federal Circuit Courts, that drug quantity was not an essential element of a Federal drug crime.

Posted by: Jim Gormley | Jun 8, 2022 2:33:26 PM

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