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United States v. Sepúlveda-Hernández - 752 F.3d 22 (1st Cir. 2014)

Rule:

21 U.S.C. § 860(a) creates an independent substantive offense, not merely a sentence-enhancing factor.

Facts:

From 2000 to 2008, defendant-appellant Tomás Sepúlveda-Hernández was the marijuana supplier to, and a co-owner of, an open air drug market in La Trocha Ward, Vega Baja, Puerto Rico. The said drug point was located in close proximity to a public basketball court. In December of 2008, a federal grand jury indicted the defendant, along with 58 others, on charges stemming from the distribution of marijuana and crack cocaine. Following 10 days of trial, a jury found the defendant guilty of conspiracy to possess with intent to distribute at least 50 grams of crack cocaine and at least 100 kilograms of marijuana, as well as aiding and abetting in the distribution of at least 100 kilograms of marijuana. On a special verdict form, the jury indicated that the culpable activities took place within 100 feet of a private or public youth center intended primarily for use by persons under 18 years of age. On appeal, defendant argued that the government failed to establish that the drug point operated within 100 feet of a youth center. Although defendant admitted that the drug market described by the government was within 100 feet of the public basketball court, defendant insisted that the government failed to prove that the facility was intended primarily for use by minors. Defendant posited that 21 U.S.C. § 860(a) created an independent substantive offense, so that proximity to a youth center was an element of that crime that must be proven to the jury beyond a reasonable doubt. On the other hand, the government contended that proximity to a youth center was simply a sentence-enhancing factor that must only be proven to the judge by preponderant evidence.

Issue:

Did 21 U.S.C. § 860(a) create an independent substantive offense, thereby rendering “proximity to a youth center” an element of that crime that must be proven to the jury beyond a reasonable doubt?

Answer:

Yes.

Conclusion:

Reading the statute as a whole, the Court concluded that 21 U.S.C. § 860(a) created an independent substantive offense. According to the  of Appeals for the First Circuit, words in a statute have consequences. Thus, "primarily" means "essentially; mostly; chiefly; principally." It would follow that Congress did not intend for drug sales at specific locations to trigger sharply increased penalties simply because minors happen to be in the vicinity of a particular facility from time to time. As such, proximity to a youth center was an element of the crime that must be proven to the jury beyond a reasonable doubt. In the present case, because the evidence fell woefully short of establishing that the basketball court was intended primarily for the use of persons under the age of 18, defendant's convictions under § 860(a) could not stand.

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