Before Supreme Court: Meaning of ‘Attempt’ to Violate Controlled Substances Act

Whether the mere offer to buy or sell a controlled substance can, by itself, constitute the crime of an “attempt” to violate the Controlled Substances Act (CSA) is currently on petition for certiorari to the U.S. Supreme Court.

Kenneth Daniels pleaded guilty in federal court to being a felon in possession of a firearm in violation of a federal statute. Because Daniels had at least three prior convictions under Pennsylvania’s drug trafficking statute, the government moved to sentence him to a 15-year mandatory minimum term of imprisonment under the Armed Career Criminal Act (ACCA).

Daniels opposed the government’s motion, arguing that Pennsylvania’s drug trafficking statute is broader than the federal CSA. Specifically, Daniels argued his convictions under the Pennsylvania statute which criminalizes solicitations of drug transactions, could not be held against him for ACCA purposes because the federal CSA does not criminalize such conduct. Therefore, he argued, those Pennsylvania convictions could not be categorically considered a “serious drug offense” for the purposes of triggering the ACCA’s 15-year mandatory minimum sentence.

The federal district court rejected Daniels’s arguments and sentenced him to 15 years’ imprisonment. Daniels raised the same argument on appeal to the U.S. Court of Appeals for the Third Circuit, which rejected them an affirmed Daniels’s sentence.

In March 2019, Daniels raised his arguments in a petition for a writ of certiorari to the U.S. Supreme Court. He argues the high court should hear his case because the federal courts of appeal are split on whether the mere offer to buy or sell a controlled substance constitutes an “attempt” to violate the CSA. He further asserts that the circuit split is causing the disparate treatment of thousands of people every year.

The courts of appeal expressly disagree over whether the CSA criminalizes bare solicitations of drug transactions, Daniels argues in his petition. The Third Circuit held that it does. But in doing so, it acknowledged that it was “expressly disagree[ing]” with the Ninth Circuit’s contrary holding. Moreover, the Second Circuit has aligned with the Third Circuit, and the Fifth Circuit has aligned with the Ninth. Daniels argues this “mature conflict” will not be resolved without the Supreme Court’s intervention.

According to Daniels’s petition, every year since 2010, more than 5,000 federal felons have been convicted under the CSA. These individuals, Daniels argues, are receiving disparate sentences for the same crimes based solely on their “bad luck” of being sentenced in an unfavorable circuit.

The government’s response to Daniels’s petition is due to the Supreme Court on September 3, 2019, after which the petition will circulate among the justices of the court for their consideration whether to hear the case. FEDagent will post an update on Daniels v. United States when the Supreme Court either rejects Daniels’s petition or hears his case.

The parties’ filings with the Supreme Court in Daniels v. United States may be read as they are posted here

This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update


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