United States v. Peithman, No. 17-2721 (8th Cir. 2019)
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Plaintiff and his mother were convicted of charges related to their operation of smoke shops that sold "potpourri," a product containing synthetic marijuana that when consumed sometimes resulted in significant adverse health effects. The district court also imposed a money judgment against defendants, AEP Properties, and Cornerstone Plaza, as well as a fine and restitution against defendants.
The Eighth Circuit held that there was sufficient evidence to convict defendants, and rejected defendants' numerous contentions of substantive and procedural errors. However, the court reversed the portion of the money judgment jointly and severally pursuant to 21 U.S.C. 853 in the amount of $117,653.57. The court held that Honeycutt v. United States, 137 S. Ct. at 1632–33, precluded the district court from imposing joint and several liability for coconspirators under section 853. Accordingly, the court remanded for further proceedings as to that issue, but affirmed the sentences and convictions in all other respects.
Court Description: Erickson, Author, with Benton and Beam, Circuit Judges] Criminal case - Criminal law. The court's error in submitting a statutory sentencing enhancement as a separate offense for violation of 18 U.S.C. Sec. 3147 was harmless as the various items of evidence concerning defendant Peithman's incarceration and supervised release status would have been admitted at trial without the charge; the court did not err in rejecting defendant Elder's request to present a public authority/entrapment by estoppel defense; evidence was sufficient to support defendant Petithman's convictions for conspiracy and investment of illicit drug profits; in light of the juror's response to the court's inquiry, the court did not abuse its discretion in permitting a temporarily ill juror to continue on the case; imposition of a joint and several money judgment under 18 U.S.C. Sec. 981(a)(1)(C) in the amount of $1.025 million affirmed; however, that portion of the judgment imposed jointly and severally under 21 U.S.C. Sec. 853 relating to the conviction for conspiracy to distribute drug paraphernalia is reversed; no error in imposing an enhancement under Guidelines Sec. 2D1.1(b)(12) as the enhancement applies to paraphernalia equipment and could be based on acquitted conduct; no error in imposing an obstruction of justice enhancement under Guidelines Sec. 3C1.1; the district court did not err in rejecting defendant Peithman's request for a minor participant downward departure; no error in cross-referencing the controlled substance table; defendant Peithman's structuring conviction played no part in the calculation of his offense level because it did not produce the highest offense level of defendant's convictions, and any error with regard to the structuring conviction was harmless; challenge to amount of downward variance rejected; the district court did not err in making defendant Peithman's revocation sentence consecutive to these new offense convictions; defendant Elder's challenges to the cross-reference and use of the drug quantity table rejected; court may rely on acquitted conduct at sentencing; defendant Elder's within-Guidelines sentence is presumptively reasonable.
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