First Circuit Remands Case Back to District for Resentencing: Patch, No. 20-2063

Patch was charged with maintaining a drug-involved premises during the Spring and Summer of 2018.  She was accused of leasing an apartment and allowing her boyfriend to use the apartment as a base of operations for drug trafficking.  See 21 U.S.C. 856(a)(2)

She pled guilty to knowing that the drug trafficking ring ran by her boyfriend stored and processed controlled substances at her apartment.

Patch sought application of USSG 2D1.8(a)(2) which says:

“(2) If the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises, the offense level shall be 4 levels less than the offense level from §2D1.1 applicable to the underlying controlled substance offense, but not greater than level 26.”

When the PSI came back, it indicated that that Patch was not only aware of the drug-related activities taking place but also accompanied [her boyfriend] to several resupply trips to a nearby state.   The court found this to be true and as such indicated that the offense level cap under 2D1.8(a)(2) did not apply to Patch.  Patch still was found to have a total offense level of 21 and a criminal history category 1.  She ultimately received a sentence of 34 months, three months under her guideline range.  She filed an appeal, among other things, arguing that the district court erred by not applying her 2D1.8(a)(2) cap.

“The central question on appeal reduces to whether the record evidence, including reasonable inferences therefrom, supports the district court's determination that the defendant, above and beyond the provision of her apartment as a drug involved premises, can be said to have participated in the drug operation.”

In this case the government indicated that they bore the burden of proving that the cap was not applicable.  Here, this means that:

“the government had the burden in this case to prove by a preponderance of the evidence that the defendant "took part with others" in the drug operation in some way other than her mere provision of the apartment for drug involved activity.”

Here, the court determine that the evidence in favor here is scant:

“The only evidence is that the defendant accompanied Weldon on a few occasions when he drove from Maine to Massachusetts to pick up drugs from his supplier. There is no evidence that her presence on these jaunts furthered the drug operation: the record does not show, say, that she drove the car, served as a lookout, or interacted with the supplier. For aught that appears, she was merely along for the ride as a passenger in the vehicle. Nor does the record give any indication that her presence on these trips differed in any way from her presence in the car on other (non- drug-related) occasions, such as when she and Weldon drove together on social outings, on trips to the supermarket, or the like. In short, the record shows only that the defendant was present on the resupply trips, and we think that mere presence at the scene of criminal activity is insufficient to show participation.”

The court also determined that her simple presence also did not affect the analysis either:

“To be sure, we previously have distinguished between "mere presence" and "culpable presence" in the context of drug- trafficking activities…Although mere presence will not suffice to sustain criminal charges, "a defendant's presence at the point of a drug sale, taken in the light of attendant circumstances, can constitute strong evidence of complicity." [But here], the defendant is not a person claiming to be innocent of any knowledge of drug activities…the record evinces no actions by the defendant and no interactions between her and her boyfriend from which a court reasonably can infer participation.  Because the attendant circumstances do not differ from those surrounding an innocent car ride, there is no basis to find, by preponderant evidence, that her presence was anything other than innocent.”

Lastly, the fact that the government conceded that they had the burden to prove that the cap did not apply worked against them:

“The sockdolager here is that the government has conceded that it had the burden of proving that subsection (a)(2) does not apply. The Supreme Court has made it pellucid that "if the evidence is evenly balanced, the party that bears the burden . . . must lose.”

The error here resulted in an increased base offense level, which in turn led to a miscalculated guideline range.

“Accordingly, the defendant's sentence must be vacated and the case remanded for resentencing. Even if the sentence imposed is within or below a properly calculated GSR, that circumstance alone is insufficient to avoid the need for resentencing.”

The First Circuit reversed the ruling and remanded the case back to the district court.  No. 20-2063