21 U.S.C. 851 Primer. The statutes What 851 is not checklist The 851 information... 4

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1 21 U.S.C. 851 Primer January 12-13, 2017, Wichita and Kansas City, Kansas Robin Fowler, Bath & Edmonds Carl Folsom, Assistant Federal Public Defender Contents The statutes... 2 What 851 is not checklist... 3 The 851 information... 4 Is the existence of the prior conviction a jury question?... 6 Has the government proven that the defendant is the person previously convicted?... 6 What if the prior convictions are related do they count as one or two priors?... 7 Is the prior conviction a felony?... 9 But wait this prior conviction is only for simple possession Is the prior conviction final? Can the prior conviction be undone? What if the prior conviction is expunged? Is the prior conviction for conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances? Relating to can encompass tax offenses Carl s Mellouli argument background materials

2 The statutes 21 U.S.C. 841 sets out the penalties for drug crimes. The following statutory mandatory minimums and maximums apply if the defendant has one or more prior conviction[/s] for a felony drug offense that has[/have] become final : Subsection of 21 U.S.C. 841 No enhancement 1 prior 2+ priors 1 or more priors + current crime resulted in death/serious bodily injury (b)(1)(a) 10 to life 20 to life LIFE LIFE (b)(1)(b) 5 to to life 10 to life LIFE (b)(1)(c) 0 to 20 0 to 30 0 to 30 LIFE (b)(1)(d) 0 to 5 0 to 10 0 to 10 0 to U.S.C. 802(44) defines felony drug offense as an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances. 21 U.S.C. 851 obligates the government to file a timely and sufficient enhancement information before the defendant may be sentenced under 841 s prior conviction enhancements. Complete copies of these provisions are included at the end of these materials. 2

3 What 851 is not Section 851 is shorthand for the government s invocation (by filing a 851 information) of the enhanced penalties in 841. Section 851 is not a reference to the career-offender guideline at USSG 4B1.1. Section 851 is not a reference to the Armed Career Criminal Act at 18 U.S.C. 922(g). Section 851 is not a reference to the three strikes law at 18 U.S.C. 3559(c). These are four different means by which a court may enhance the defendant s sentence based on prior drug (or other) convictions. Successfully challenging one of these enhancers may not be enough if another enhancer applies. Make challenges specific to the enhancement mechanism, and be aware of all possible enhancements. The 851 information Is it timely? Is it sufficient? The prior conviction 851 checklist Is it a conviction? Is it a felony? Has it become final? Can it be undone before the federal sentencing? Is it for conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances? Has the government adequately proved the prior conviction? 3

4 The 851 information A district court may not impose an enhanced sentence based on a defendant s prior conviction unless the government files an information in compliance with 851(a). United States v. LaBonte, 520 U.S. 751, 754 n.1, (1997). But 851 notices are not jurisdictional. United States v. Flowers, 464 F.3d 1127, 1130 (10th Cir. 2006). A 851 information filed the morning of jury trial (before jury selection) is timely. United States v. Gonzalez-Lerma, 14 F.3d 1479 (10th Cir. 1994). In Prou v. United States, 199 F.3d 37 (1st Cir.1999), the court held that the failure to raise a 851(a) objection constituted ineffective assistance of counsel. In Prou, the First Circuit held that [w]here... an attorney fails to raise an important, obvious defense without any imaginable strategic or tactical reason for the omission, his performance falls below the standard of proficient representation that the Constitution demands. Id. at 48. In Prou, the failure to object occurred after a jury trial and conviction and where there was no possible strategic value in not making a 851(a) objection that would have obviously been sustained. Id. In United States v. Davis, 636 F.3d 1281 (10th Cir. 2011), the government relied on a conviction for someone who had the same name as the defendant but was not the defendant. So, the case number was incorrect in the 851 notice, but the defendant had a prior conviction that ultimately counted. The Tenth Circuit noted that clerical errors were not a problem and neither were non clerical errors, under plain error review, if they were not prejudicial. Id. at Defense counsel did not specifically complain about the incorrect case number, so the Tenth Circuit used plain error review. Here, the Tenth Circuit found that the errors were not prejudicial, if barely. Id. at

5 In United States v. Willis, 102 F.3d 1078, 1085 (10th Cir. 1996). Gvt. filed the 851 notice before the first trial but did not, after the mistrial, refile it. The Tenth Circuit found that this was sufficient because it still met the purpose of the notice filing. The purpose of the notice filing is to give the defendant an opportunity to establish either that he had not been convicted of the crimes the government relies upon for the sentence enhancement or that the convictions do not qualify as the type satisfying the enhancement requirements. Here the defendant had that opportunity. Id.; accord United States v. Wright, 932 F.2d 868, 882 (10th Cir.), cert. denied, 502 U.S. 962, 116 L. Ed. 2d 448, 112 S. Ct. 428 (1991) (the government is not required to refile its notice after return of a superseding indictment). But see United States v. Blevins, 755 F.3d 312 (5th Cir. 2014) (new 851 information required on new indictment after initial indictment dismissed). Willis also creates the dichotomy between the legal question of whether the offense fits the definition of a prior drug felony and the factual question of whether the defendant was convicted of the priors upon which the government relies. This is important because the 851 statute only seems concerned with the factual question, not the legal one. In United States v. Gonzalez-Lerma, 14 F.3d 1479, 1486 (10th Cir. 1994), overruled on other grounds, United States v. Botero- Ospina, 71 F.3d 783, 787 (10th Cir. 1995), The Tenth Circuit held that an incorrect date of conviction was a clerical error. The Tenth Circuit also observed that the 851 notice would be sufficient notice to the defendant even without the case number and the specific place of conviction. Id. The Tenth Circuit reaffirmed that where the 851 notice included the incorrect court and location of court it was harmless error at most where the defendant had received a copy of the relevant police report for the prior conviction and the PSR correctly recounted the defendant s criminal history. United States v. Hood, 615 F.3d 1293, 1297 (10th Cir. 2010). 5

6 Is the existence of the prior conviction a jury question? The Circuits that have decided this question agree that the answer to this question is no. The reasoning is that in Alleyne v. United States, 133 S.Ct. 2151, 2160 n.1 (2013), the Supreme Court explained that its holding did not disturb the narrow Almandarez-Torres exception. See United States v. Wallace, 759 F.3d 486 (5th Cir. 2014); United States v. Harris, 741 F.3d 1245, 1249 (11th Cir. 2014); United States v. McDowell, 745 F.3d 115, (4th Cir. 2014); United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014); United States v. Boyce, 742 F.3d 792, 799 (7th Cir. 2014); United States v. Blair, 734 F.3d 218, (3d Cir. 2013); United States v. Carrigan, 724 F.3d 39, 51 n.4 (1st Cir. 2013); United States v. Rucker, 545 Fed. App x 567, 573 (8th Cir. 2013) (per curiam) (unpublished). Prior to Alleyne, the Supreme Court stated in Almendarez-Torres v. United States that for the purposes of sentencing enhancements, a prior conviction is not a fact that must be alleged in an indictment or found by a jury beyond a reasonable doubt. 523 U.S. 224, 239 (1998). This exception comes from Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The Eleventh Circuit has acknowledged in response to an 851- based appeal that there was tension between Almendarez-Torres on the one hand and Alleyne and Apprendi on the other. United States v. Harris, 741 F.3d 1245, 1250 (11th Cir. 2014). However, we are not free to do what the Supreme Court declined to do in Alleyne, which is overrule Almendarez-Torres. Id. Has the government proven that the defendant is the person previously convicted? In United States v. Green, 175 F.3d 822, 835 (10th Cir. 1999), the Tenth Circuit found that the government had not proven that the defendant in the present case had been convicted twice before of felony drug offenses because the government had not proven that all of the offenses had been committed by the same person. Id. at 6

7 The problem was that the prior offenses were against people with different names than the defendant. Id. The defendant had admitted that he had those other names as aliases, so the government did not introduce photographs or fingerprints from the various cases. Id. n. 8. There were other inconsistencies in the government s evidence, including that the defendants were born in different years (although on the same date) and the mother s first name for both was Nadine, but each had different last names. Id. at 836 n. 9. The Tenth Circuit found that the government had not met its burden, which was beyond a reasonable doubt, that these two prior convictions had been committed by the defendant in the present case. However, the Tenth Circuit remanded the case for a de novo sentencing on this issue. Id. at 836. As the Tenth Circuit explained: De novo resentencing permits the receipt of any relevant evidence the court could have heard at the first sentencing hearing. Id. (quoting United States v. Ortiz, 25 F.3d 934, 935 (10th Cir. 1994)). The government may rely on all necessary and appropriate evidence, including fingerprints, photographs, and other evidence from law-enforcement and correctional-institution files to prove that the defendant is the person previously convicted. United States v. Garner, 223 Fed. Appx. 792 (10th Cir. 2007). What if the prior convictions are related do they count as one or two priors? We hold that two prior convictions will subject a defendant to a mandatory life term under 841(b)(1)(A) if the second conviction requires proof of: (1) a criminal act separate from the acts supporting the first conviction, (2) which occurs at a distinct time from the acts supporting the first conviction, and (3) which occurs after the defendant had a meaningful opportunity to discontinue his unlawful drug-related activity. United States v. Beckstrom, 647 F.3d 1012, 1015 (10th Cir. 2011). 7

8 If the two priors that the government is relying on come from a conspiracy, the Tenth Circuit uses a separate criminal episode test. United States v. Pace, 981 F.2d 1123, 1132 (10th Cir. 1992). The inquiry is: did the prior offenses constitute separate criminal episodes or a single act of criminality. To reach this conclusion, the Tenth Circuit relied on two cases, one from the Fourth Circuit and one from the Sixth. In United States v. Hughes, 924 F.2d 1354, (6th Cir. 1991), the Sixth Circuit applied a separate criminal episode test and determined that the defendant s prior state conviction constituted a prior conviction for purposes of 841(b)(1)(A). In United States v. Blackwood, 913 F.2d 139, 145 (4th Cir. 1990), the Fourth Circuit determined that the defendant s state convictions on two indictments for possession with intent to sell marijuana, when the offenses occurred within two hours of each other, constituted a single act of criminality, and, therefore, one prior conviction for purposes of 841(b)(1)(A)). In Hughes, the question was whether the prior Michigan conviction for a March 4, 1988, possession of cocaine with intent to distribute was part of the present offense, which was a conspiracy to possess with the intent to distribute based on a package received in December of Hughes, 924 F.2d at 1355 and The Sixth Circuit found that these were separate events and upheld the twenty-year mandatory minimum sentence. Id. at In the Tenth Circuit s Pace case, the defendant had been convicted of five separate substantive counts of possession of large quantities of marijuana based on events occurring over a six-month period. Pace, 981 F.2d at Even though they were prosecuted in one case, the Tenth Circuit found that they were separate criminal episodes that occurred at distinct times. Id. 8

9 Is the prior conviction a felony? In United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014), the U.S. Court of Appeals for the Tenth Circuit held that to determine if an offense fit the federal definition of what is a federal felony, the court looks at what the individual faced at sentencing, not what the worst offender charged with the same offense faced. Whether an offense is punishable by imprisonment for more than 1 year should be determined by the possible sentence for the prior offense, based on the actual facts and criminal history that existed for offender at the time of the offense. Brooks, 751 F.3d at 1213 (defendant s prior Kansas conviction for eluding police was not a felony for purposes of imposition of career offender enhancement; rejecting hypothetical worst possible offender test). Thus, if a prior Kansas conviction for a drug offense carried a maximum sentencing range of one year or less, it cannot serve as a felony drug offense that would enhance a mandatory minimum sentence under 21 U.S.C Accord United States v. Haltiwanger, 637 F.3d 881, 884 (8th Cir. 2011) ( [T]he hypothetical possibility that some recidivist defendants could have faced a sentence of more than one year is not enough to qualify Haltiwanger s conviction [for failure to affix a drug tax stamp] as a felony under 21 U.S.C. 841(b)(1). ) A similar argument exists for Kansas prior convictions that carried presumptive probation sentences under the Kansas Sentencing Guidelines. (This argument is referred to as Brooks 2.0.) Relevant to this issue, the Tenth Circuit analyzed Brooks in United States v. Romero-Leon, No , 2015 WL (10th Cir. July 28, 2015). In Romero-León, the court held that a prior conviction was not a serious drug offense for purposes of the Armed Career Criminal Act, which requires an offense for which a maximum term of imprisonment of ten years or more is prescribed by law under 18 U.S.C. 924(e)(2)(A)(ii). Id., slip op., 9

10 at In holding that Mr. Romero-León s offense did not carry a maximum term of imprisonment of ten years or more, the court rejected the government s arguments that the sentence could have been more than ten years if the State of New Mexico had elected to enhance his sentence by three years for aggravating circumstances. The court stated: [T]he prosecution was apparently required to file a pleading giving Romero-León notice of potential aggravating factors. See Frawley, 172 P.3d at 153. That did not happen here, thus we cannot say Romero-León faced more than a nine-year sentence in So, under Brooks, Romero-León s 1999 drug crimes should not have triggered enhancement under the ACCA. Romero-León, slip op., at 12 (footnote omitted). Under Brooks and Romero-Leon, a sentence in the Kansas presumptive probation grid box in Kansas is not a crime punishable by imprisonment for more than one year. An offense in a presumptive-probation grid box is presumed by statute to carry a probation term. See Kan. Stat. Ann (a) (setting the Kansas sentencing grid for drug crimes). Thus, for a client s presumptive probation prior, if the State and the court did not give prior notice of an intent to give an upward dispositional departure (to a prison term), the court at the sentencing hearing had no ability to give anything other than a sentence of probation. See Kan. Stat. Ann (a) ( [T]he sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence. ); Kan. Stat. Ann (a) (requiring a departure motion to state the type of departure sought and the reasons and factors relied upon; additionally requiring the hearing on a departure motion to be 10

11 scheduled so that the parties have adequate time to prepare and present arguments regarding the issues of departure sentencing). Under Kan. Stat. Ann (b)(14), if a defendant in a Kansas felony case gets a probation sentence, the most jail time, or imprisonment, the sentencing court can impose is 60 days. Thus, Kansas presumptive-probation convictions do not meet the federal definition of a felony drug offense in 21 U.S.C. 802(44) and 21 U.S.C As the Tenth Circuit stated in Brooks: [w]e now hold, in line with our pre-hill precedent, that in determining whether a state offense was punishable by a certain amount of imprisonment, the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received. 751 F.3d at 1213 (emphasis added). But wait this prior conviction is only for simple possession Prior convictions for simple possession are not predicate offenses for purposes of the ACCA or career-offender guidelines. But they can be predicate offenses for 851 purposes, so long as they are felonies. United States v. Jones, 559 F.3d 831, 837 (8th Cir. 2009) ( both the statutes and Eighth Circuit case law clearly permit the use of a simple drug possession conviction, as long as it is a felony, for enhancement ). Is the prior conviction final? The sentencing enhancements in 21 U.S.C. 841 apply only if a defendant commits the offense after the prior conviction or prior convictions for a felony drug offense ha[ve] become final. So the timing of when a prior conviction becomes final is vitally important. See United States v. Davis, 636 F.3d 1281, 1294 (10th Cir. 2011) (government filed an 851 notice for two offenses but the Tenth Circuit observed that one of them could not have been 11

12 prior because the conviction occurred after the offense conduct in the federal case). The courts of appeals that have addressed the issue of whether a prior conviction is final within the meaning of 21 U.S.C. 841(b)(1) have construed the statute to mean that a prior conviction is final for purposes of recidivist sentencing when all avenues of direct appellate review have been exhausted. See United States v. Lovell, 16 F.3d 494, 497 (2nd Cir. 1994); United States v. Allen, 566 F.2d 1193, 1195 (3d Cir. 1977), cert. denied, 435 U.S. 926 (1978); United States v. Campbell, 980 F.2d 245, (4th Cir. 1992), cert. denied, 508 U.S. 952 (1993); United States v. Morales, 854 F.2d 65, 69 (5th Cir. 1988); United States v. Miller, 434 F.3d 820, 823 (6th Cir. 2006), cert. denied, 126 S. Ct (2006); Williams v. United States, 651 F.2d 648, (9th Cir. 1981); United States v. Lippner, 676 F.2d 456, 467 (11th Cir. 1982). See also Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987) ( By final, we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. ). A similar rule of a conviction s finality is present under Kansas law: [a] conviction is generally not final until: (1) the judgment of conviction is rendered; (2) the availability of an appeal is exhausted; and (3) the time for any rehearing or final review has passed. State v. Berry, 292 Kan. 493, 514, 254 P.3d 1276 (2011). Thus, under federal or Kansas law, a prior felony drug offense will not be final if the direct appeal of the judgment is still pending. Important to this issue, Kansas law allows out-of-time direct appeals under certain circumstances. See State v. Shelly, 303 Kan. 1027, 1028, 371 P.3d 820 (2016). In the interest of fundamental fairness, an indigent defendant may be able to appeal their conviction and sentence out of time where they were either: (1) not informed of the rights to appeal; (2) not furnished 12

13 an attorney to perfect an appeal; or (3) furnished an attorney for that purpose who failed to perfect and complete an appeal. State v. Ortiz, 230 Kan. 733, , 640 P.2d 1255 (1982). See State v. Patton, 287 Kan. 200, 223, 195 P.3d 753 (2008) (discussing the standards of review for making an Ortiz claim). Thus, a defendant may be able to pursue an untimely direct appeal of the judgment of conviction and sentence in state court making their prior conviction not final and thus avoid a mandatoryminimum sentence under 21 U.S.C. 841(b)(1). Can the prior conviction be undone? Possibly. See United States v. Green, 175 F.3d 822, 835 n.7 (10th Cir. 1999) (quoting 21 U.S.C. 851(e) to hold that [a] defendant may not challenge the validity of a conviction which occurred more than five years before the date of the information alleging such prior conviction ). But see Vizcaino v. United States, 981 F.Supp. 2d 104 (D. Mass. 2013). What if the prior conviction is expunged? An expunged conviction may still trigger 841 s enhanced penalties (unless the expungement is on grounds of actual innocence). United States v. Norbury, 492 F.3d 1012, 1015 (9th Cir. 2012) (interpretation of validity of previous state conviction is a matter of federal, not state, law, and the expunged or dismissed state conviction qualifies as a prior conviction if the expungement or dismissal does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime ); accord United States v. Dyke, 718 F.3d 1282 (10th Cir. 2013) (citing Norbury with approval). 13

14 Is the prior conviction for conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances? In the ACCA and career-offender context, we ask whether the elements of a prior conviction match the elements of the predicate crime listed in the statute or guideline. In the 851 context, we ask whether the elements of a prior a prior conviction describe conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances. This is a looser standard. Nonetheless, we start with the categorical approach, and look to the elements of the statute and not the underlying facts to see whether the prior conviction was a felony drug offense. See United States v. Bennett, 823 F.3d 1316, (10th Cir. 2016). If the statute is divisible into alternative elements, we then take the modified categorical approach and look to the limited set of Shephard documents to figure out the elements of conviction. Id. at For instance, if the defendant was previously convicted of felony theft because he stole marijuana from somebody, we look only to the elements of the theft statute to determine whether his crime was for conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances. None of the theft elements that the jury must find are drug related. Theft is therefore categorically not a prior conviction for conduct relating to the listed drugs. Relating to can encompass tax offenses. See, e.g., United States v. McGehee, 177 Fed. Appx. 815, (10th Cir. 2006) (Texas conviction for failure to pay marijuana tax qualifies; statute discourages the widespread (unlawful) use of marihuana by imposing a tax on persons who in violation of Texas law possess, purchase, acquire, import, manufacture, or 14

15 produce it. That is, certainly restricts (i.e., regulates or limits) conduct relating to marihuana because in order to be in compliance with Texas law, the marihuana related activity (in whatever form, e.g., possession, acquisition, importation) must be lawful or a tax will be levied, non-payment of which will result in a third-degree felony. No matter how slight, this is a restriction on conduct relating to marihuana. ); United States v. Coleman, 556 F.3d 851, 853 (8th Cir. 2009) (Coleman s felony violation of Iowa s tax stamp law is a prior felony drug offense within the meaning of 841(b)(1)(B)); United States v. Trevino Rodriguez, 994 F.2d 533 (8th Cir. 1993) (holding that the defendant s prior violation of Kansas s drug tax stamp law is a prior felony drug offense under 841(b)(1)(A))). Carl s Mellouli argument In Mellouli v. Lynch, 135 S. Ct (2015), the Supreme Court held that the Kansas definition of a controlled substance was categorically broader than the generic federal definition. The Court applied the categorical approach based on Congress s focus in the immigration statutes on convictions, not conduct. Mellouli, 135 S. Ct. at The use of the categorical approach was used to determine that Mellouli s conviction for Kansas possession of drug paraphernalia was not relat[ed] to a controlled substance based on Kansas s addition of salvia and gypsum weed, which are not included in the federal definition of a controlled substance. Example 1: Possession of Hallucinogenic Drug (Marijuana) with the Intent to Deliver is not a felony drug offense for purposes of 21 U.S.C If any person commits a violation of 21 U.S.C. 841 after a prior conviction for a felony drug offense has become final, certain mandatory minimum sentences may apply (10 years, 20 years, or mandatory life). 21 U.S.C

16 21 U.S.C. 802(44) defines the term felony drug offense to mean an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances. 2. All of these terms are also defined in Section 802. (9) The term depressant or stimulant substance means-- (A) a drug which contains any quantity of barbituric acid or any of the salts of barbituric acid; or (B) a drug which contains any quantity of (i) amphetamine or any of its optical isomers; (ii) any salt of amphetamine or any salt of an optical isomer of amphetamine; or (iii) any substance which the Attorney General, after investigation, has found to be, and by regulation designated as, habit forming because of its stimulant effect on the central nervous system; or (C) lysergic acid diethylamide; or (D) any drug which contains any quantity of a substance which the Attorney General, after investigation, has found to have, and by regulation designated as having, a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect. * * * (16) The term marihuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, 16

17 manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. * * * (17) The term narcotic drug means any of the following whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis: (A) Opium, opiates, derivatives of opium and opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation. Such term does not include the isoquinoline alkaloids of opium. (B) Poppy straw and concentrate of poppy straw. (C) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed. (D) Cocaine, its salts, optical and geometric isomers, and salts of isomers. (E) Ecgonine, its derivatives, their salts, isomers, and salts of isomers. (F) Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subparagraphs (A) through (E). 17

18 3. Kan. Stat. Ann (a)(4) makes it unlawful for any person to distribute or possess with the intent to distribute... any hallucinogenic drug designated in subsection (d) of K.S.A , subsection (g) of K.S.A or subsection (g) of K.S.A , and amendments thereto[.] This same language was present in previous versions of this statute. See, e.g., Kan. Stat. Ann (a)(3) (repealed July 1, 2009). 4. Marijuana is one such drug that Kansas considers a "hallucinogenic drug designated in subsection (d) of K.S.A " Kan. Stat. Ann (d)(16). 5. In 2008, the Kansas Legislature, added salvia and gypsum weed in the definitions of hallucinogenic drugs listed in Kan. Stat. Ann (d). Kan. Stat. Ann (d)(29) & (30). 6. KSA (d) is not divisible, so it should be reviewed using the categorical approach. Under the KS Supreme Court s alternative means analysis, the different options for what hallucinogenic drug in Kan. Stat. Ann (d) are just factual options with the means of committing the offense of possession of a hallucinogenic drug with the intent to sell. See generally State v. Brown, 295 Kan. 181, 194, 284 P.3d 977 (2012) (merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction). Thus, Kan. Stat. Ann (d) does not include alternative elements. So this statute is not divisible, and the categorical approach applies. Descamps v. United States, 133 S. Ct. 2276, 2282 (2013) (only the categorical approach not the modified categorical approach applies to statutes that contain an indivisible set of elements). See also Mathis v. United States, 136 S. Ct (2016). 18

19 7. Under Mellouli v. Lynch, 135 S. Ct (2015), Kansas s addition of salvia and gypsum weed to its definition of hallucinogen means that Kansas s definition of a "hallucinogenic drug designated in subsection (d) of K.S.A " includes more than just marijuana. Because salvia and gypsum weed are two substances not included in the definition of felony drug offense in 21 U.S.C. 802(44), a defendant s conviction under Kan. Stat. Ann (a)(4) or the previous versions of the statute (Kan. Stat. Ann (a)(3) (repealed 2009)) for possession of hallucinogenic drug (allegedly marijuana) with the intent to sell should not be considered a felony drug offense in 21 U.S.C. 802(44) and 21 U.S.C Example #2: a conviction for possessing with the intent to distribute a stimulant, under K.S.A (a)(3), should not count as a conviction for a felony drug offense for purposes of 21 U.S.C A conviction for possessing with the intent to distribute a stimulant, under Kan. Stat. Ann (a)(3), also should not count as a felony drug offense under 21 U.S.C That is so because Kan. Stat. Ann (a)(3) forbids, inter alia, possessing a drug called lisdexamfetamine. See K.S.A (d)(5). But that drug is not a narcotic drug, marihuana, stimulant or depressant under the federal definitions - primarily because the Attorney General has not made any findings regarding its potential for abuse. Because a conviction for Kan. Stat. Ann (a)(3) could be based on possessing lisdexamfetamine, but lisdexamfetamine is not a narcotic drug, marihuana, steroid, stimulant or depressant under federal law, the conviction would not count as one that prohibits or restricts conduct related to a narcotic drug, steroid, marihuana, stimulant or depressant. So it would not qualify as a felony drug offense. 19

20 851 background materials 21 U.S.C U.S.C U.S.C. 802 (select definitions) 21 U.S.C. 321(g)(1) Penalties chart AG Memo 9/24/14 AG Memo 8/12/13 AG Memo 5/19/10 20

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