Petition for Writ of Certiorari — Hull v. United States (No. 07-497)

Supreme Court, U.S.

Pree B

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\ vo. 2 07-497 0Ci 9- 207

Gn Gyhe —«OFFICE OF THE CLERK

Supreme Court of the Chhited States

+

JASON ALLEN HULL,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

*

ON PETITION FOR WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

*

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

+

Kevin T. Tipton

Counsel of Record

TIPTON LAW OFFICES

1001 Northpointe Plaza

Morgantown, West Virginia 26505

(304) 292-8478

Counsel for Petitioner

THE LEX GROUP®© ¢ 1750 K Street N.W. @ Suite 475 ¢ Washington, DC 20006

(202) 955-0001 @ (800) 815-3791 @ Fax: (202) 955-0022 @www.thelexgroupdc.com

QUESTION PRESENTED

Whether the Fourth Circuit erred in ruling

that the search of the Defendant’s home and the

seizure of various items from said home was illegal

under the Fourth Amendment.

ii

PARTIES TO THE PROCEEDING

The following list identifies all parties

appearing before this Court and before the United

States Court of Appeals for the Fourth Circuit.

The Petitioner here and Appellant/Defendant

below, Jason Allen Hull.

The Respondent here and the

Appellee/Plaintiff below, United States of America.

iii

TABLE OF CONTENTS

Page

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REASONS FOR GRANTING THE PETITION ........ 6

i THE FOURTH CIRCUIT’S

DECISION TO AFFIRM THE

DENIAL OF THE

PETITIONER'S MOTION TO

SUPPRESS WAS CLEARLY

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a. The delay was

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b. The protective sweep was

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Opinion of the

United States Court of Appeals

For the Fourth Circuit

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TABLE OF AUTHORITIES

Page(s)

CASES

Chimel v. California,

395 U.S. 752, 89S. Ct. 2034 (1969) ......00000... 10

Maryland v. Buie,

RE Bris BCD sesivecicceceoveccrstscessevovanes 11,12

Payton v. New York,

445 U.S. 573, 100 S. Ct. 1371,

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Silverman v. United States,

365 U.S. 505, 81 S. Ct. 679,

a iis Ae FO CE i Perens: Lentsoneninsesinscesessateoss 13

Taglavore v. U.S.,

291 F.2d 262 (9 Cir. 1961)........... cee 10, 11

U.S. v. Lefkowitz,

285 US. 452, 52 S. Ct. 420 (1932) ................ 10

U.S. v. Lovasco,

431 US. 783, $7 S. Ct. 23044 (1977) ................ 7

U.S. v. Payne,

423 F.24 1126 -(4" Cir. 1970)..................... 8,9

US. v. United States District Court,

407 U.S. 297, 92 S. Ct. 2125,

SUE Be 2 > | ee 13

vi

U.S. v. Watson,

423 U.S. 411, 96S. Ct. 820 (1976)... 7

U.S. v. Weaver,

S64 F.2d G70 (6? Civ. 1067). ccccscssscesedscccs 7, 8,9

U.S. v. Wilhelm,

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CONSTITUTIONAL PROVISION

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STATUTES

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OPINIONS BELOW

The opinion of **= United States Court of

Appeals for the Fourth ©. cuit was an unpublished,

per curiam opinion decided on July 11, 2007, and is

reprinted in the Appendix to this Petition at 1. The

opinion of the United States District Court for the

Northern District of West Virginia was unpublished

and is reprinted in the Appendix to this Petition at

App. la.

JURISDICTION

The United States Court of Appeals for the

Fourth Circuit entered its judgment on July 11,

2007. This Court has jurisdiction under 28 U.S.C. §

1254.

STATUTES INVOLVED

This case involves U.S. Const. Amend IV.

(App. 4a) The Petitioner was originally charged in

district court with violations of 21 U.S.C. §§ 846,

841, 864, 843, 18 U.S.C. § 924 and 18 U.S.C. § 2.

(App. 4a-11a)

STATEMENT OF THE CASE

Without this Court’s intervention, the Fourth

Amendment, designed to protect all United States

citizens from unreasonable search and seizure, will

be rendered a farce and the very fabric of our

constitution will suffer a rip that may never be

mended.

On March 3, 2005, Trooper Scarbro of the

West Virginia State Police obtained a misdemeanor

arrest warrant for the Defendant for the

misdemeanor offense of contributing to the

delinquency of a minor. The offense was allegedly

committed on or about February 26, 2005. However,

Trooper Scarbro waited nearly two months until

April 28, 2005, to execute the misdemeanor arrest

warrant, despite the fact that the warrant directed

the officer to execute it “forthwith.”

The Petitioner’s home is located

approximately seven (7) minutes from the State

Police station. The Trooper offered no reason for the

delay in executing the warrant except that he simply

put the warrant “on the backburner” because he had

other more serious crimes to investigate and handle

and that he “just happened to have the time” on

April 28, 2005.

On April 28, 2005, when he finally decided to

execute the warrant, Trooper Scarbro, a highly

experienced state trooper, took two deputy sheriffs

with him to execute the misdemeanor arrest

warrant. Moments after arriving at the Petitioner’s

home, he was immediately met by the Petitioner at

the front door at which time he as instantly placed

under arrest without incident. The Petitioner was

immediately taken off of his porch, well into the

driveway and handcuffed. As he was being escorted

off his porch, the two deputies immediately went into

the Petitioner’s home, without a warrant, at which

time a number of items were discovered.

After looking around in the Petitioner’s home,

the police then sought a search warrant from the

local magistrate, at which time they “searched” the

home and seized a number of items.

Trooper Scarbro testified that he had received

tips from people about the Petitioner “for about a

year” prior to arresting him and searching his home.

Finally, the misdemeanor arrest warrant at

issue in this matter was dismissed by the State of

West Virginia. It was never pursued or prosecuted.

The Fourth Amendment guarantees the right

of the people to be secure in their homes against

unreasonable searches and seizures. However,

actions such as the ones in the case are threatening

this very premise and chipping away at the very

freedoms we were guaranteed by our founding

fathers. This is precisely why this case requires

immediate review by this Court.

Factual Background

1. On or about March 3, 2005, an arrest warrant

was issued Upshur County Magistrate Court

directing the Petitioner to be arrested

“forthwith” for the offense of contributing to

the delinquency of a minor.

2. On April 28, 2005, Trooper Scarbro, of the

West Virginia State Police, took two sheriffs

deputies with him and executed the arrest

warrant at the Petitioner’s home which was

located seven (7) minutes away from the

Trooper’s station. j

a. Upon their arrival, the Petitioner met the

Trooper at the front door and was

immediately taken into police custody. He

was taken off the porch and handcuffed

several feet from his home.

4. As the Petitioner was being led off his porch

into the driveway, the two sheriffs deputies

passed them and immediately entered the

Petitioner’s home without a search warrant of

any kind.

5. Upon information and belief, the two deputies

looked throughout the Petitioner’s home prior

to coming back out. There were a number of

people in the home, one of which was arrested.

However, he was later dismissed from the

proceedings for lack of evidence.

6. After looking through the Petitioner’s home,

the deputies then obtained a search warrant,

pursuant to which a number of items of

evidence was obtained incriminating the

Petitioner.

Procedural History Pim mene

On August 17, 2005, the Petitioner was

named in a five count indictment, charging him with

conspiracy to distribute methamphetamine, one

count; aiding and abetting the attempted

manufacturing of methamphetamine, one count;

possession of pseudoephedrine with intent to

manufacture methamphetamine, one count; and

possession of firearm in furtherance of a drug crime,

one count. On or about October 11, 2005, a

suppression hearing was conducted at which the

Petitioner moved for the suppression of various

items of evidence based upon the contention that the

search of his home was illegal. On or about October

19, 2005, the federal magistrate judge entered a

Report and Recommendation denying the

Appellant’s motion to suppress. On or about October

28, 2005, Appellant timely filed his objections to the

report and recommendation. On or about November

9, 2005, the district court entered an Order adopting

the report and recommendation.

On or about February 27, 2006, the Appellant

entered a conditional plea to Count I of the

Indictment, Conspiracy, under which he was allowed

to appeal the Court’s adverse decision relative to his

motion to suppress. He was ultimately sentenced on

October 25, 2006, whereat the Appellant was

sentenced to 87 months incarceration.

The Petitioner filed his timely appeal with the

United States Court of Appeals for the Fourth

Circuit and said appeal was denied on or about July

11, 2007. The Fourth Circuit found that the 56 day

delay between the issuance and the execution of the

misdemeanor arrest warrant was not unreasonable

and that the officers were justified under the

circumstances of this case in entering the

Petitioner’s house after his arrest, to conduct a

protective sweep.

REASONS FOR GRANTING THE PETITION

The Fourth Circuit’s decision illustrates the

very decay of the fundamental rights granted to us

by the Constitution. The facts, taken as whole,

clearly indicate that the officers in this case sat on

what appears to be a pretextual misdemeanor arrest

warrant and picked what they deemed to be the

perfect time to execute the warrant and search the

Petitioner’s home under the guise of a “protective

sweep.” Obviously, this is the very conduct our

Constitution and decades of caselaw was meant to

discourage and prevent. However, to this point, the

police have gotten by with it and it is imperative

that this Court step in and right the ship and protect

the Petitioner’s Fourth Amendment rights.

I. THE FOURTH CIRCUIT’S DECISION TO

AFFIRM THE DENIAL OF THE

PETITIONER’S MOTION TO SUPPRESS

WAS CLEARLY ERRONEOUS.

The Fourth Amendment succinctly states:

The right of the people to

be secure in their persons,

houses, papers, and

effects, against un-

reasonable searches and

seizures, shall not be

violated, and no Warrants

shall issue, but upon

probable cause, supported

by Oath or affirmation,

and particularly describing

the place to be searched,

and the persons or things

to be seized.

These few short sentences have rang true for

hundreds of years and establish the very backbone

upon which our criminal justice system is built.

They are meant to protect us from rogue searches

and police officers who would rather f ad — or create

— loopholes than to follow the law of the land.

Fortunately for the Petitioner, however, there is a

system of checks and balances.

a. The delay was unreasonable.

Generally, delaying the arrest usually poses

no problem under speedy trial or due process

considerations. See U.S. v. Lovasco, 431 U.S. 783, 97

S. Ct. 2044 (1977); see also U.S. v. Watson, 423 U.S.

411, 451, 96 S. Ct. 820, 841 (1976)(holding that

“[dlelay by law enforcement officers in executing an

arrest warrant does not ordinarily affect the legality

of the arrest.)

However, there are exceptions to this general

rule. One specific exception is emphasized in U.S. v.

Weaver, wherein the Fourth Circuit held that

“[plolice officials are required to use diligence in

execution of arrest warrants” and “may not hold

one unexecuted in hope that they may

ultimately find the defendant in a house or

other building which they would like to search

but which they could not lawfully search except as

incident to lawful arrest.” 384 F.2d 879, 880-881 (4%

Cir. 1967)(emphasis added).

In Weaver, the Defendant’s whereabouts were

unknown for sixteen (16) days and he was ultimately

found in an airport after the police were given a tip.

The Court found that the sixteen day delay in

executing the warrant was not unreasonable given

that the police did not know where the Defendant

was.

Moreover, the Fourth Circuit cited the Weaver

decision as well as United States v. Payne, 423 F.2d

1125 (4" Cir. 1970) as supporting law for its decision

to affirm the lower court’s ruling that the delay was

reasonable.

Petitioner has already pointed out the

poignant differences between the facts in Weaver

and those in the case at bar. As for Payne, two days

prior to be arrested, an arrest warrant had been

issued for the defendant, based upon an earlier sale

of narcotics to an undercover policewoman. The

undercover agent also reported to federal officers

that she had been told by the defendant that she

would take heroin to a prisoner in Lorton

Reformatory om Sunday. Payne, 423 F.2d at 1125.

The defendant contended that the officers should

have executed, or attempted to execute, the arrest

warrant on Saturday, their usual day off, and that it

was impermissible for them to wait until Sunday

when they had reason to believe the defendant

would be engaged in the commission of another

offense.

The Fourth Circuit held that:

“The duty to attempt with

reasonable promptness to

execute such warrants,

cannot be so. closely

confined or strictly

applied. The exercise of

reasonable diligence

without undue delay does

not inexorably call for

absolute immediacy.

Within reasonable limits of

time and place, the officers

charged with the execution

of an arrest warrant are

entitled to consider their

other duties, work

schedules and

convenience.” Jd.

Obviously, the case at bar is completely

different from both Weaver and Payne. Here, the

trooper knew exactly where the Defendant was at all

times and there is absolutely no evidence that he

had a difficult time trying to find him. In fact, by

the trooper’s own admission, the Petitioner's home

was only seven short minutes away. Regardless, it

took the police nearly two months to execute the

misdemeanor arrest warrant on the Petitioner.

During the suppression hearing, Trooper

Scarbro testified that he had received a number of

tips about the Petitioner’s drug activity and that he

had been receiving those tips for approximately a

10

year. In fact, Trooper essentially admitted that this

was why he chose to execute the warrant when he

did. Given this admission by Trooper Scarbro,

coupled with the fact that he took two sheriff's

deputies with him to execute the warrant, there is

absolutely no question that he was waiting for the

“right time” to execute the warrant so that they

could search the appellant’s home “pursuant to his

arrest.” Finally, if we add in the fact that the

misdemeanor warrant was ultimately dismissed by

the State of West Virginia and never prosecuted, it is

clear that the arrest warrant was a sham and used

as a pretext to search the Defendant’s home for

evidence and this is a clear violation of the

Defendant’s Fourth Amendment rights. See U.S. v.

Lefkowitz, 285 U.S. 452, 467, 52 S. Ct. 420, 424

(1932); see also Taglavore v. U.S., 291 F.2d 262, 265

(9™ Cir. 1961)(holding that where the arrest is only a

sham or front being used as an excuse for making a

search, the arrest itself and the ensuing search are

illegal); see also Chimel v. California, 395 U.S. 752,

767, 89 S. Ct. 2034, 2042 (1969).

As the Taglavore Court held:

“(T]he violation of a

constitutional! right by a

subterfuge cannot be

justified, and the

circumstances of this case

leave no other inference

than that this is what was

done with the

[misdemeanor] warrant

here. Were the use of

11

misdemeanor arrest

warrants as a pretext

for searching people

suspected of felonies to

be permitted, a

mockery could be made

of the Fourth

Amendment and its

guarantees. The courts

must be vigilant to

detect and prevent such

a misuse of §legai

processes.” Id., at 266

(emphasis added).

It’s almost as if the Taglavore Court could see this

case coming and this matter fits neatly within the

four corners of that decision.

b. The protective sweep was not

justified.

According to Maryland v. Buie, 494 U.S. 325,

327 (1990), “[a] ‘protective sweep’ is a quick and

limited search of premises, incident to an arrest

and conducted to protect the safety of police

officers or others. It is narrowly confined to a

cursory visual inspection of those places in

which a person might be hiding.” (Emphasis

added). Hence, the question is whether “the area

swept harbored an individual posing a danger to the

officer or others.” Jd.

As noted, in the instant case, three police

officers appeared at the Petitioner’s door step to

12

execute an misdemeanor arrest warrant on the

Petitioner, fifty six days after the warrant was

issued. Despite the fact that the Petitioner instantly

surrendered himself to the police without any

incident whatsoever, two of the officers, within ten

seconds, according to Trooper Scarbro, barged into

his home under the guise of a “protective sweep.” In

its unpublished, per curiam opinion, the Fourth

Circuit found no error in the district court’s

determination that the delay in execution of the

warrant was reasonable and that the protective

sweep was justified citing the Maryland v. Buie case.

Here, again, the Petitioner was taken several

feet away from his home, in handcuffs. He posed

absolutely no threat to the officers. While there

were people inside the Petitioner’s home, they were

not being disruptive or belligerent in any way.

Supposedly, the reason why the police were at

the Petitioner’s home was to execute a misdemeanor

arrest warrant and it went off without a hitch.

However, the officers saw fit to walk through the

front door of the Petitioner’s home and search it.

Said search was not “quick and limited” and was not

even remotely necessary to “protect the safety of the

officers.” They could have simply put the Petitioner

in the cruiser and left the area. If they suspected

other criminal activity, which they did even before

they went to the Petitioner’s home, they could have

easily obtained a search warrant based upon what

they saw, heard or smelled, and there would never

have been an issue. However, they took it upon

themselves to go that extra, ill-advised mile, and

13

they effectively and callously trampled the

Petitioner’s constitutional rights in the process.

CONCLUSION

The caselaw in this area is endless but the

same premise holds true. “The right to privacy in

one’s home is a most important interest protected by

the Fourth Amendment and a continuing theme in

constitutional jurisprudence.” U.S. v. Wilhelm, 80

F.3d 116 (4" Cir. 1996). “Physical entry of the home

is the chief evil against which the wording of the

Fourth Amendment is directed.” Payton v. New

York, 445 U.S. 573, 585, 100 S. Ct. 1371, 1379, 63 L.

Ed. 2d 639 (1980) quoting U.S. v. United States

District Court, 407 U.S. 297, 313, 92 S. Ct. 2125,

2135, 32 L. Ed. 2d 752 (1972). “At the very core [of

the Fourth Amendment] stands the right of a man to

retreat into his home and there be free from

unreasonable government intrusion.” Silverman v.

United States, 365 U.S. 505, 511, 81 S. Ct. 679, 682,

5 L. Ed. 2d 734 (1961).

In sum, considering all the facts, it is clear in

this case that the misdemeanor arrest warrant was

simply a means to an end, and, once the true

objective was met, the misdemeanor was thrown to

the curb. Moreover, there was no need for a

protective sweep of the Petitioner’s home because

there was absolutely no risk posed to the officers.

Given such, the Petitioner's arrest and the

subsequent search of his home should be deemed

illegal and the evidence of that search suppressed.

14

For these reasons, this Court should grant

this petition for certiorari.

Kevin T. Tipton

Counsel of Record

TIPTON LAW OFFICES

1001 Northpointe Plaza

Morgantown, WV 26505

304-292-8478 (office)

ia

TABLE OF CONTENTS

APPENDIX TO PETITION

Page

Opinion of the

United States Court of Appeals

For the Fourth Circuit

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[ENTERED: JULY 11, 2007]

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5121

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JASON ALLEN HULL,

Defendant - Appellant.

Appeal from the United States District Court for the

Northern District of West Virginia, at Elkins. Robert

E. Maxwell, Senior District Judge. (2:05-cr-00037-

REM-2)

Submitted: June 13, 2007

Decided: July 11, 2007

Before WILKINSON, KING, and GREGORY, Circuit

Judges.

Affirmed in part; dismissed in part by unpublished

per curiam opinion.

Kevin T. Tipton, TIPTON LAW OFFICES, PLLC,

Morgantown, West Virginia, for Appellant. Sharon

2a

L. Potter, United States Attorney, Wheeling, West

Virginia; Stephen D. Warner, Assistant United

States Attorney, Elkins, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Jason Allen Hull entered a conditional plea of

guilty to conspiracy to manufacture and distribute

methamphetamine. He reserved his right to appeal

from the district court’s denial of his motion to

suppress evidence seized from his residence, and,

with some exceptions, he waived his right to appeal

his sentence. On appeal, Hull argues that the

district court erred in finding that the delay in

executing a misdemeanor arrest warrant was not

unreasonable and was not a pretext for an unlawful

search of his residence. He also contends that the

officers had no justification for a protective sweep of

the interior of his home when he was arrested

outside his home. Lastly, Hull challenges the

applicability of an enhancement to his sentence.

To the extent that Hull seeks to challenge his

sentence, we dismiss that portion of the appeal

based on Hull’s waiver of the right to appeal in his

plea agreement. Except as to issues concerning the

suppression motion, Hull agreed that if the base

offense level was twenty-six or lower, he waived the

right to appeal his sentence or the manner in which

the sentence was determined. The validity of this

waiver is not challenged on appeal, and the

sentencing issue falls squarely within the scope of

3a

the waiver. Thus, Hull has waived his right to

challenge his sentence, and we dismiss this portion

of the appeal.

Hull also challenges the district court’s

determination that the fifty-six-day delay between

the issuance and the execution of the misdemeanor

arrest warrant was not unreasonable and that the

officers were justified under the circumstances of

this case in entering Hull’s house after his arrest

outside the house, to conduct a protective sweep. We

have reviewed the parties’ briefs and joint appendix

and find no error in the _ district court’s

determination that the delay in execution of the

warrant was not unreasonable and that the

protective sweep was justified. See Maryland v.

Buie, 494 U.S. 325, 334 (1990); United States v.

Payne, 423 F.2d 1125, 1125-26 (4th Cir. 1970);

United States v. Weaver, 384 F.2d 879, 880 (4th Cir.

1967). Accordingly, we affirm the denial of the

motion to suppress and thus affirm Hull’s conviction

for the reasons stated by the district court. See

United States v. Hull, No. 2:05-cr-00037-REM-2

(N.D.W. Va. dated Nov. 9, 2005; entered Nov. 11,

2005). We dispense with oral argument because the

facts and legal] contentions are adequately presented

in the materials before the court and argument

would not aid the decisional process.

AFFIRMED IN PART;

DISMISSED IN PART

4a

U.S. Const. amend IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized

18 U.S.C. § 2 Principals

(a) Whoever commits an offense against the

United States or aids, abets, counsels, commands,

induces or procures its commission, is punishable as

a principal.

(b) Whoever willfully causes an act to be done

which if directly performed by him or another would

be an offense against the United States, is

punishable as a principal.

18 U.S.C. § 924 Penalties

(c)

(1)

(A) Except to the extent that a greater minimum

sentence is otherwise provided by this subsection or

by any other provision of law, any person who,

during and in relation to any crime of violence or

drug trafficking crime (including a crime of violence

or drug trafficking crime that provides for an

enhanced punishment if committed by the use of a

deadly or dangerous weapon or device) for whick. the

person may be prosecuted in a court of the United

States, uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm,

5a

shall, in addition to the punishment provided for

such crime of violence or drug trafficking crime—

(d)

(1) Any firearm or ammunition involved in or

used in any knowing violation of subsection (a)(4),

(aX(6), (f), (g), ch), Wi), G), or Ck) of section 922, or

knowing importation or bringing into the United

States or any possession thereof any firearm or

ammunition in violation of section 922 (1), or

knowing violation of section 924, or willful violation

of any other provision of this chapter or any rule or

regulation promulgated thereunder, or any violation

of any other criminal law of the United States, or

any firearm or ammunition intended to be used in

any offense referred to in paragraph (3) of this

subsection, where such intent is demonstrated by

clear and convincing evidence, shall be subject to

seizure and forfeiture, and all provisions of the

Internal Revenue Code of 1986 relating to the

seizure, forfeiture, and disposition of firearms, as

defined in section 5845(a) of that Code, shall, so far

as applicable, extend to seizures and forfeitures

under the provisions of this chapter: Provided, That

upon acquittal of the owner or possessor, or

dismissal of the charges against him other than

upon motion of the Government prior to trial, or

lapse of or court termination of the restraining order

to which he is subject, the seized or relinquished

firearms or ammunition shall be returned forthwith

to the owner or possessor or to a person delegated by

the owner or possessor unless the return of the

firearms or ammunition would place the owner or

possessor or his delegate in violation of law. Any

action or proceeding for the forfeiture of firearms or

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ammunition shall be commenced within one hundred

and twenty days of such seizure.

(2)

(A) In any action or proceeding for the return of

firearms or ammunition seized under the provisions

of this chapter, the court shall allow the prevailing

party, other than the United States, a reasonable

attorney’s fee, and the United States shall be liable

therefor.

(B) In any other action or proceeding under the

provisions of this chapter, the court, when it finds

that such action was without foundation, or was

initiated vexatiously, frivolously, or in bad faith,

shall allow the prevailing party, other than the

United States, a reasonable attorney’s fee, and the

United States shall be liable therefor.

(C) Only those firearms or quantities of

ammunition particularly named and individually

identified as involved in or used in any violation of

the provisions of this chapter or any rule or

regulation issued thereunder, or any other criminal

law of the United States or as intended to be used in

any offense referred to in paragraph (3) of this

subsection, where such intent is demonstrated by

clear and convincing evidence, shall be subject to

seizure, forfeiture, and disposition.

(D) The United States shall be liable for attorneys’

fees under this paragraph only to the extent

provided in advance by appropriation Acts.

(3) The offenses referred to in paragraphs (1) and

(2)(C) of this subsection are—

(A) any crime of violence, as that term is defined

in section 924 (c)(3) of this title;

(B) any offense punishable under the Controlled

Substances Act (21 U.S.C. 801 et seq.) or the

Ta

Controlled Substances Import and Export Act (21

U.S.C. 951 et seq.);

(C) any offense described in section 922 (a)(1), 922

(a)(3), 922 (a)\(5), or 922 (b)(3) of this title, where the

firearm or ammunition intended to be used in any

such offense is involved in a pattern of activities

which includes a violation of any offense described in

section 922 (a)(1), 922 (a)(3), 922 (a)(5), or 922 (b)(3)

of this title;

(D) any offense described in section 922 (d) of this

title where the firearm or ammunition is intended to

be used in such offense by the transferor of such

firearm or ammunition;

(E) any offense described in section 922 (i), 922 (j),

922 (1), 922 (n), or 924 (b) of this title; and

(F) any offense which may be prosecuted in a

court of the United States which involves the

exportation of firearms or ammunition.

21 U.S.C. § 841. Prohibited acts A

(a) Unlawful acts

Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or

dispense, a controlled substance; or

(b) Penalties

Except as otherwise provided in section 849, 859,

860, or 861 of this title, any person who violates

subsection (a) of this section shall be sentenced as

follows:

(1)

(B) In the case of a violation of subsection (a) of

this section involving—

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(i) 100 grams or more of a mixture or substance

containing a detectable amount of heroin;

(ii) 500 grams or more of a mixture or substance

containing a detectable amount of—

(I) coca leaves, except coca leaves and extracts of

coca leaves from which cocaine, ecgonine, and

derivatives of ecgonine or their salts have been

removed;

(II) cocaine, its salts, optical and geometric

isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts, isomers,

and salts of isomers; or

(TV) any compound, mixture, or preparation which

contains any quantity of any of the substances

referred to in subclauses (I) through (III);

(iii) 5 grams or more of a mixture or substance

described in clause (ii) which contains cocaine base;

(iv) 10 grams or more of phencyclidine (PCP) or

100 grams or more of a mixture or substance

containing a detectable amount of phencyclidine

(PCP);

(v) 1 gram or more of a mixture or substance

containing a detectable amount of lysergic acid

diethylamide (LSD);

(vi) 40 grams or more of a mixture or substance

containing a detectable amount of N-phenyl-N- [1-

(2-phenylethy] ) -4-piperidinyl ] propanamide or 10

grams or more of a mixture or substance containing

a detectable amount of any analogue of N-phenyl-N-

[1-(2-phenylethyl)-4-piperidinyl] propanamide;

(vii) 100 kilograms or more of a mixture or

substance containing a detectable amount of

marihuana, or 100 or more marihuana plants

regardless of weight; or

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(viii) 5 grams or more of methamphetamine, its

salts, isomers, and salts of its isomers or 50 grams or

more of a mixture or substance containing a

detectable amount of methamphetamine, its salts,

isomers, or salts of its isomers;

such person shall be sentenced to a term of

imprisonment which may not be less than 5 years

and not more than 40 years and if death or serious

bodily injury results from the use of such substance

shall be not less than 20 years or more than life, a

fine not to exceed the greater of that authorized in

accordance with the provisions of title 18 or

$2,000,000 if the defendant is an individual or

$5,000,000 if the defendant is other than an

individual, or both. If any person commits such a

violation after a prior conviction for a felony drug

offense has become final, such person shall be

sentenced to a term of imprisonment which may not

be less than 10 years and not more than life

imprisonment and if death or serious bodily injury

results from the use of such substance shall be

sentenced to life imprisonment, a fine not to exceed

the greater of twice that authorized in accordance

with the provisions of title 18 or $4,000,000 if the

defendant is an individual or $10,000,000 if the

defendant is other than an individual, or both.

Notwithstanding section 3583 of title 18, any

sentence imposed under this subparagraph shall, in

the absence of such a prior conviction, include a term

of supervised release of at least 4 years in addition to

such term of imprisonment and shall, if there was

such a prior conviction, include a term of supervised

release of at least 8 years in addition to such term of

imprisonment. Notwithstanding any other provision

of law, the court shall not place on probation or

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suspend the sentence of any person sentenced under

this subparagraph. No person sentenced under this

subparagraph shall be eligible for parole during the

term of imprisonment imposed therein.

(c) Offenses involving listed chemicals

Any person who knowingly or intentionally—

(1) possesses a listed chemical with intent to

manufacture a controlled substance except as

authorized by this subchapter;

21 U.S.C. 843 Penalties

(d)(1) Except as provided in paragraph (2), any

person who violates this section shall be sentenced to

a term of imprisonment of not more than 4 years, a

fine of not more than $30,000, or both; except that if

any person commits such a violation after one or

more prior convictions of him for violation of this

section, or for a felony under any other provision of

this subchapter or subchapter II of this chapter or

other law of the United States relating to narcotic

drugs, marihuana, or depressant or stimulant

substances, have become final, such person shall be

sentenced to a term of imprisonment of not more

than 8 years, a fine of not more than $60,000, or

both.

(2) Any person who, with the intent to manufacture

or to facilitate the manufacture of

methamphetamine, violates paragraph (6) or (7) of

subsection (a), shall be sentenced to a term of

imprisonment of not more than 10 years, a fine of

not more than $30,000, or both; except that if any

person commits such a violation after one or more

prior convictions of that person--

(A) for a violation of paragraph (6) or (7) of

subsection (a); (B) for a felony under any other

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provision of this subchapter or subchapter II of this

chapter; or

(C) under any other law of the United States or any

State relating to controlled substances or listed

chemicals, has become final, such person shall be

sentenced to a term of imprisonment of not more

than 20 years, a fine of not more than $60,000, or

both.

21 U.S.C. § 846. Attempt and conspiracy

Any person who attempts or conspires to commit any

offense defined in this subchapter shall be subject to

the same penalties as those prescribed for the

offense, the commission of which was the object of

the attempt or conspiracy

21 U.S.C. § 864. Anhydrous ammonia

(a) It is unlawful for any person—

(1) to steal anhydrous ammonia, or