Thursday, May 11, 2017

What does the government need to establish importation under USSG § 2D1.1(b)(5)?

One of many enhancements under USSG 2D1.1 involves a two level bump for amphetamine or methamphetamine offenses that "involved the importation" of the drugs or certain chemicals. USSG § 2D1.1(b)(5).

But what does the government need to prove to establish the offense involved importation? Does the government have to establish that the defendant knew the drugs at issue were imported? A recent Ninth Circuit case may create a circuit split on this question. In United States v. Job the Ninth appears to reject a strict liability rule from a Fifth Circuit decision, United States v. Serfass, which held "that the enhancement under § 2D1.1(b)(5) applies irrespective of whether the defendant knew that the possessed methamphetamine had been unlawfully imported."

The  Job court bases their decision on the fact that the district court "made no determinations about the scope of the jointly undertaken criminal activity as required by the Sentencing Guidelines." So the question as to what exactly the government needs to prove seems to be an open question, even in the Ninth Circuit. One question is clear - this enhancement needs to be objected to, especially when the government simply puts on evidence that the drugs were imported without additional proof.

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