Dist. Ct. erred in imposing sentences on charge of conspiracy to distribute misbranded drugs, where said sentences were based, in part, on imposition of enhancement under sec. 2B1.1(b)(15)(A) of USSG for engaging in conduct that entailed “conscious or reckless risk of death,” under circumstances where: (1) defendants sold two customers three packages of iAroma that had been misbranded as incense or potpourri; (2) said individuals smoked contents of said packages; and (3) two hours after purchase of iAroma, one customer crashed his car into home, which caused his death. Said enhancement was improper for both defendants, where, although record supported conclusion that defendants knew that customers were smoking contents of packages to obtain marijuana-like high, record did not support determination that either defendant knew that contents of packages presented lethal risk to users. Fact that both defendants had failed to learn of health risks associated with smoking content of instant packages did not require different result.
Federal 7th Circuit Court
Criminal Court
Sentencing