It’s an odd week for wins in the federal appellate courts.
The Second Circuit ruled that the First Amendment protects (some kinds of) promotional activity for off-label use of drugs. Any time the First Amendment is intersecting with criminal law it makes for good reading – expect fuller coverage later this week.
The Eighth Circuit sent a Fair Sentencing Act case back for resentencing, and there was a bizarre grenade case from the Eighth Circuit as well. Good Times.
Also, the Supreme Court is going to hear a challenge to the Defense Against Marriage Act and California’s Prop 8. It’s not terribly relevant to what we do on this blog, but everyone else is talking about it, and I’d hate to not be one of the cool kids.
To the Victories:
1. United States v. Caronia, Second Circuit: Appellant was convicted of conspiracy to introduce a misbranded drug into interstate commerce because he promoted an FDA-approved drug for “off-label use.” Because this conviction violated appellant’s First Amendment right to free speech, it was vacated.
2. United States v. Orozco, Eighth Circuit: Appellant was convicted of possessing cocaine and crack cocaine. The court imposed the ten-year mandatory minimum sentence for the crack conviction. After the acts giving rise to the convictions, but before appellant’s sentencing, the Fair Sentencing Act went into effect, which amended the crack sentencing provisions. The case was remanded to the district court to address the applicability of the Act and the possibility of resentencing.
3. United States v. Mann, Eighth Circuit: Appellant was convicted of eight offenses arising out of his use of a grenade that cause severe and permanent personal injury. Because Appellant’s conviction for possessing a machine gun (count 6) was a lesser-included offense of possessing an unregistered machinegun (count five), these convictions were remanded with instructions to vacate one of the convictions. Additionally, the district court erroneously imposed two sentencing enhancements: (1) an enhancement for directing the assault of a federal inmate under Guideline § 3C1.1 for obstruction of justice; and (2) a firearms enhancement for possession of grenades containing an altered serial number under Guideline § 2K2.1(b)(4). The case was remanded for resentencing on counts 1, 2, 3, and 5 or 6.