904 F.3d 580
7th Cir.2018Background
- Mohsin owned the Cigar Box (a mall smoke shop) and employed Khan; they sold products labeled as "incense" or "potpourri" (e.g., iAroma, Zero Gravity, Head Trip) that customers used as synthetic marijuana.
- Mohsin and Khan pleaded guilty to conspiring to distribute misbranded drugs in violation of 18 U.S.C. § 371 and 21 U.S.C. §§ 331(c), 333(a)(2).
- Probation recommended enhancements under U.S.S.G. § 2B1.1(b)(15)(A) for engaging in conduct that consciously or recklessly risked death or serious bodily injury, significantly increasing each defendant’s advisory range.
- At sentencing the court heard testimony (DEA pharmacologist; customers; victim’s family); the district court applied a multi-level § 2B1.1(b)(15)(A) enhancement to both defendants and denied Mohsin full acceptance-of-responsibility credit.
- On appeal the Seventh Circuit reviewed the enhancement for clear error and examined whether knowledge that customers used the products to get high equated to awareness of a risk of death or serious bodily injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2B1.1(b)(15)(A) enhancement (conscious/reckless risk of death or serious bodily injury) was supported by the record | Government: defendants knew customers smoked the products and knew synthetic marijuana can have severe effects, supporting the enhancement | Mohsin/Khan: knowledge that customers used products to get high does not show awareness of risk of death or serious bodily injury; insufficient evidence to meet the guideline standard | Reversed: enhancement was clear-error; record did not show defendants were conscious of or recklessly disregarded a risk of death or serious bodily injury |
| Whether the district court could rely on Janus Smith’s testimony without permitting full cross-examination | Government relied on Smith’s account of a hospitalization as proof of harm | Mohsin: Smith’s deposition contradicted her sentencing testimony and the court improperly curtailed cross-examination, undermining reliability | Court held limiting cross-examination was error where impeaching evidence existed; court may not rely on unreliable testimony for enhancement findings |
| Whether general medical experience or failure to investigate justify a reckless-risk finding | Government: Mohsin’s medication experience and Khan’s failure to investigate indicate reckless disregard | Defendants: general knowledge or ignorance is insufficient; guideline requires conscious or reckless risk, not negligence | Rejected: general health knowledge and failure-to-investigate do not establish the requisite mental state for § 2B1.1(b)(15)(A) |
| Whether Dobner’s death supported the enhancement | Government did not press this theory at sentencing | Defendants: no evidence they knew Dobner’s death was linked to the products during the conspiracy period | Court: record does not show defendants learned causal link during charged period; enhancement cannot be based on Dobner’s death on this record |
Key Cases Cited
- Vivit v. United States, 214 F.3d 908 (7th Cir. 2000) (defines recklessness and "serious bodily injury" for guideline enhancements and emphasizes awareness-of-risk standard)
- United States v. Johnson, 471 F.3d 764 (7th Cir. 2006) (contrast: enhancement upheld where defendant continued selling product after learning of overdose deaths)
- United States v. Ghiassi, 729 F.3d 690 (7th Cir. 2013) (sentencing findings must rest on reliable evidence; defendants entitled to reasonable opportunity to challenge material testimony)