So what exactly is a "serious drug offense"? The Third Circuit Court of Appeals tackled the question when it heard the case of Dante Tucker, a Pennsylvania man who was sentenced to 15 years under the Armed Career Criminal Act's three-strike policy.
On appeal, Tucker argued that his sentence should be reduced since two of his drug convictions don't qualify as "serious drug offenses" for purposes of sentencing enhancement under the Act. The Third Circuit agreed, in part.
Back in 2007, Tucker and 21 others were implicated in a conspiracy to distribute cocaine. He later pleaded guilty to one count of possession of a firearm as a convicted felon under 18 U.S.C. § 922(g)(1).
The government argued that Tucker was subject to sentencing enhancement under the ACCA, which mandates a minimum sentence of 15 years for anyone convicted under 18 U.S.C. § 922(g)(1) who also had three prior convictions for "violent felonies" or "serious drug offenses."
The government alleged that Tucker had a 1995 conviction that qualified as a "violent felony" as well as two convictions for "serious drug offenses" in 1999 and 2002, respectively. While Tucker conceded the violent felony, he denied that the other two convictions were for serious drug offenses.
Under the Act, a serious drug offense is one that involves the manufacture, distribution, or possession with intent to sell of a controlled substance, which carries a prison term of ten years or more.
The government argued that both of Tucker's drug convictions involved cocaine and, therefore, carried maximum sentences of 10 years. The district court agreed and sentenced Tucker to 15 years.
On Appeal, Tucker argued that neither of the convictions required a finding that cocaine was the drug at issue. Thus, neither qualified as a serious drug offense.
In analyzing Tucker's claim, the Third Circuit applied the Supreme Court's "modified categorical approach" discussed in Taylor v. United States. Under the approach, courts first look at the language of the statutory offense to determine if it meets the definition. If it doesn't, the court could then look at the charging papers and jury instructions for context.
The Third Circuit determined that the 1999 conviction for "possession with intent to deliver" clearly qualified as a serious drug offense, since "cocaine" was listed as the substance charged, meaning the trial judge was required to find that Tucker possessed cocaine in order to convict.
However, Tucker's 2002 conviction for conspiracy to sell drugs was a different story. In that case, Tucker was accused of conspiring to sell both marijuana and cocaine. However, the court found that the charging papers and jury instructions never mentioned cocaine at all.
Since the jury was only required to determine that Tucker conspired to sell drugs, there was no indication that the 10-year maximum sentence for cocaine-related offenses applied. The conspiracy charge, therefore, didn't qualify as a serious drug offense.
The Third Circuit vacated the sentence and remanded for resentencing. If your client is facing sentencing enhancement under the ACCA, remember to go over the charging papers and jury instructions with a fine-tooth comb.
- United States v. Tucker (Third Circuit Court of Appeals)
- Third Circuit: Cop Didn't Force Mom to Accompany Teen to Hospital (FindLaw's Third Circuit Blog)
- Affirmed: Defendant Too Creepy for Downward Variance (FindLaw's Third Circuit Blog)