Court: Court of Appeals for the Seventh Circuit; September 25, 2018; Federal Appellate Court
Ruby Mohsin and Mohammad Khan pleaded guilty to conspiring to sell misbranded drugs disguised as incense or potpourri from Mohsin's store in Fox Valley Mall, Aurora, Illinois, over eight months in 2011. The district court determined that they recklessly disregarded the potential for these products to cause severe harm, leading to enhanced sentencing ranges under the U.S. Sentencing Guidelines. However, this finding was deemed a clear error, as evidence suggested they were aware that customers, including teenagers, were using the products for marijuana-like effects but did not indicate they knew the products posed lethal risks.
Mohsin sold synthetic marijuana products, including iAroma, to customers, including a teenager who later crashed his vehicle, resulting in his death. Both defendants were indicted and pleaded guilty to conspiracy to distribute misbranded drugs, violating federal food and drug laws. Their plea agreements acknowledged the inadequacy of consumer warnings and the misleading labeling of the products.
The Probation Office recommended enhancements to their advisory Guidelines ranges due to the perceived risks associated with their conduct. Mohsin's offense level, including enhancements for managerial role and risk, resulted in an advisory range of 12 to 18 months, while Khan’s range was 10 to 16 months. Neither plea agreement accounted for these enhancements, making them a central issue in sentencing. At Mohsin's sentencing, expert testimony highlighted the heightened dangers of synthetic marijuana compared to traditional marijuana, with a customer testifying to severe adverse reactions experienced by her son after using the products.
Mohsin's counsel faced limitations during the cross-examination of witness Smith, as the district court deemed her credible and stated it had sufficient information for sentencing. Smith's prior deposition contained inconsistencies regarding her son's emergency room visit related to synthetic marijuana, including a claim that she never informed hospital staff about its relevance. Other witnesses, including Brycen Rodriguez, provided testimony about negative reactions to synthetic marijuana, while Max Dobner's family spoke about his death's impact. The district court set Mohsin's advisory sentencing range at 21 to 27 months, applying a two-level enhancement under 2B1.1(b)(15)(A) due to Mohsin's experience with medication, suggesting she was aware of the associated risks. The court seemed to consider Smith's testimony about her son's hospital visit as additional support for the enhancement. Mohsin was denied credit for acceptance of responsibility, as her actions and statements during the proceedings did not align with genuine remorse. Despite using an Urdu term that indicated remorse, the district court misinterpreted her intent. Ultimately, Mohsin received a 24-month sentence, which would have been 15 to 21 months without the enhancement. Khan was assigned an advisory range of 10 to 16 months, receiving credit for acceptance of responsibility, but also faced a four-level enhancement under the same guideline for recklessly endangering consumers with his products. Both Mohsin and Khan appeal their sentences, claiming the district court erred in assessing their awareness of potential risks associated with their offenses.
Defendant qualification for sentencing enhancement is determined based on a factual issue reviewed for clear error. In this case, Mohsin and Khan met this standard. The district court mistakenly equated their knowledge of customers using misbranded incense for a marijuana-like high with a conscious or reckless disregard for the risk of death or serious bodily injury. Although the Sentencing Guidelines do not explicitly define 'conscious or reckless risk of death or serious bodily injury,' relevant case law provides guidance. In a prior case, the court affirmed a two-level enhancement due to a physician's conduct creating a serious risk of injury, explaining that recklessness involves awareness of significant risk that deviates grossly from reasonable care standards.
The term 'serious bodily injury' is broadly defined within the Guidelines, encompassing severe physical pain, long-term impairment, or the need for medical intervention. The district court's rationale for applying the enhancement to Mohsin, based on her experience with medications, failed to establish that she was aware of the specific risks posed by the synthetic marijuana products. While Mohsin knew customers were using the products for a marijuana-like effect, this awareness alone does not suffice to demonstrate a conscious or reckless risk of serious injury. The government provided testimony about the severe effects of synthetic marijuana, but no evidence indicated that Mohsin recognized these risks or that the products she sold could lead to death or serious injury. The court emphasized that general knowledge of drug risks does not equate to specific awareness of risks associated with particular substances, contrasting this case with one where a defendant continued selling a harmful product after being informed of related fatalities.
The government aimed to use Janus Smith's testimony to show that Mohsin was aware of the health risks associated with synthetic marijuana products. Smith’s son was hospitalized after consuming a product from the Cigar Box. However, the district court significantly limited the cross-examination of Smith, preventing Mohsin's counsel from challenging Smith's earlier deposition statements, which suggested unrelated reasons for her son's hospitalization. Despite diminished due process protections at sentencing, the court must ensure fundamental fairness based on reliable evidence. A defendant has the right to cross-examine witnesses and present contrary information when it may affect significant sentencing determinations.
The district court erred by relying on Smith's testimony to enhance Mohsin's offense under guideline 2B1.1(b)(15)(A) due to the limitations placed on cross-examination. Similarly, there was insufficient evidence to support an enhancement for Khan. The court's rationale—that Khan sold products to teenagers without knowing their effects—did not demonstrate awareness of risks of death or serious injury. The enhancement criteria require conscious or reckless risk, not negligence.
The case of Max Dobner, who died after smoking iAroma from the Cigar Box, was not argued by the government as a basis for enhancements, and no evidence connected Mohsin or Khan to Dobner's death during the conspiracy period. Additionally, Mohsin and Khan asserted that the district court made errors regarding acceptance of responsibility and consideration of sentencing factors, but these issues need not be addressed, as the district court's errors in applying the enhancement necessitate resentencing.
The court vacated and remanded the cases for resentencing on an expedited basis, allowing the district court to reconsider all relevant issues. Following oral argument, an order was issued for Khan's immediate release on supervised release, with this opinion explaining that decision.
