We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

3RD CIRCUIT HOLDS DRUG USER SHARING DRUGS IS NOT DISTRIBUTION (BUT HOLDING IS NOT BINDING)

A lot of prisoners writing their own motions in the law library stumble over the distinction between published (precedential) decisions. A published circuit decision binds all of the district courts in the circuit. An unpublished circuit decision may be convincing to a district court, but the decision does not have to be followed.

Bear that in mind. Last week, the 3rd Circuit handed down an unpublished decision that a drug user who jointly and simultaneously with someone else scored a small amount of drugs solely for their personal use has not ‘distributed the drug’ within the meaning of 21 USC § 841(a).

Emma Semler and Jennifer Werstler set out to jointly score some heroin. After Emmy bought some, they shared it, but Jenn overdosed and died. The government of course charged Emma with distribution of heroin resulting in death (which carries an enhanced penalty under 21 USC § 841(b)(1)(A), netting her a 20-year mandatory minimum sentence.

The 3rd agreed with Emmy that “‘transfer’… centers on possession and control…. When there has been a joint acquisition or purchase of a controlled substance by a group of users to share among themselves, there is no ‘transfer’ between the members of the group… Interpreting “transfer” as Emma suggests is consistent both with the term’s plain meaning and with our precedent. This definition mirrors the definition of ‘distribute’ in the 3rd Circuit’s Model Jury Instructions, which states that ‘[d]istribute… as used in the offenses charged, means… to deliver or to transfer… possession or control of a controlled substance from one person to another’.”

In his Sentencing Law and Policy, Ohio State University law professor Doug Berman said the 2-1 decision “addresses the persistently problematic issue of when and how social sharing of drugs constitutes distribution and all of the potentially severe consequences that can follow.”

United States v. Semler, Case No 19-2319, 2021 US App. LEXIS 16260 (3d Cir. June 1, 2021)

Sentencing Law and Policy, Fascinating split Third Circuit ruling on federal drug distribution prohibition (and death resulting 20-year mandatory minimum) (June 2)

– Thomas L. Root