United States v. John Morrison
2016 U.S. App. LEXIS 20216
| 7th Cir. | 2016Background
- From 2009–2013 Morrison and Novak sold synthetic cannabinoids (XLR-11, UR-144, PB-22, 5F-PB-22) as "herbal incense" from JC Moon; undercover buys occurred in 2012–2013.
- They hid substantial cash receipts ($50/$100 bills) from the business bank account; tax returns understated income by about $575,752 (tax loss $186,095).
- A 35-count federal indictment charged them with Analogue Act distribution and tax fraud; they moved to dismiss arguing the Analogue Act was unconstitutionally vague as applied.
- The district court denied the motion to dismiss; defendants entered unconditional guilty pleas to one count each of distributing XLR-11 (Analogue Act) and one tax-fraud count, without reserving appeal of the dismissal ruling.
- At plea and sentencing the government proffered evidence (undercover purchases, Facebook post warning of a ban, customer/employee testimony, expert testimony about pharmacological similarity to THC); defendants gave mixed admissions about their knowledge but acknowledged government could prove the facts.
- Sentences: Morrison 48 months (drug) concurrent with 36 months (tax); Novak 96 months (drug) concurrent with 36 months (tax). The Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Analogue Act (vagueness) | Appellants: Act is unconstitutionally vague as applied to XLR-11 and others | Government: Act is not vague; McFadden supports scienter requirement and constitutionality | Affirmed: facial vagueness resolved by McFadden; as-applied claims waived by unconditional pleas |
| Voluntariness of guilty pleas | Appellants: pleas were involuntary/unknowing | Government: colloquy, proffer, counsel, and defendants’ admissions show voluntariness | Affirmed: plea colloquy and totality of circumstances show knowing and voluntary pleas |
| Sufficiency of factual basis / knowledge under Analogue Act | Appellants: government failed to prove knowledge of chemical structure/effects; reliance on Turcotte inference is improper | Government: circumstantial evidence (sales for smoking, admissions, Facebook post, expert/lay testimony) proved knowledge per McFadden | Affirmed: sufficient circumstantial evidence satisfied McFadden; court properly declined to rely on Turcotte inference |
| Marijuana-equivalency ratio (1:167 THC) for sentencing | Appellants: THC is not the most closely related controlled substance; ratio inappropriate | Government: expert and lay testimony showed physiological similarity and greater potency than THC, supporting 1:167 ratio | Affirmed: factual finding that THC was most closely related was not clearly erroneous; 1:167 ratio applied correctly |
Key Cases Cited
- McFadden v. United States, 135 S. Ct. 2298 (2015) (Analogue Act requires scienter; government may prove knowledge either by showing defendant knew substance was a controlled substance or that he knew the specific analogue’s chemical structure and physiological effects)
- United States v. Phillips, 645 F.3d 859 (7th Cir. 2011) (facial vs. as-applied vagueness distinction)
- United States v. Robinson, 20 F.3d 270 (7th Cir. 1994) (conditional pleas and preservation of issues for appeal)
- United States v. Adams, 125 F.3d 586 (7th Cir. 1997) (unconditional guilty pleas waive nonjurisdictional pretrial errors)
- United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005) (permissive inference of knowledge in analogue cases; court explains limits post-McFadden)
- United States v. Pineda-Buenaventura, 622 F.3d 761 (7th Cir. 2010) (plain-error review for challenges to plea voluntariness when no district-court withdrawal attempted)
- United States v. Arenal, 500 F.3d 634 (7th Cir. 2007) (plain-error review for sufficiency of factual basis supporting a plea)
- United States v. Malone, 828 F.3d 331 (5th Cir. 2016) (standard of review for district-court factual findings about most closely related controlled substance)