For many federal criminal defendants, the key to a reduced prison sentence may be as simple as 1-2-3 — [123I] ioflupane, that is.
Ioflupane, for short, is an important neuro-imaging radiopharmaceutical drug. It is used in nuclear medicine for the diagnosis of Parkinson’s disease and to determine whether a patient suffers from Parkinson’s disease as opposed to atypical parkinsonism syndromes or Lewy body disease. As a radiotracer, Ioflupane measures the presence of dopamine transporter in the basal ganglia, which is decreased in patients with Parkinson’s disease.
So how does a Parkinson’s disease diagnostic drug cut down someone’s prison sentence?
Ioflupane is a cocaine analog substance. For many years, the federal government classified it as a Schedule II controlled substance because it was derived from cocaine via ecgonine, both of which were included in Schedule II. Then scientists discovered the value of Ioflupane in treating Parkinson’s disease. As a result, in September 2015, the Attorney General removed Ioflupane from the federal drug schedules.
It took a while for states to catch up. For example, in 1995 Maryland law criminalized Ioflupane, and it wasn’t until 2020 that the state amended its laws for catch up to the 2015 change in federal law.
For individuals convicted of a wide variety of federal crimes, a prior conviction for a “serious drug offense” or a “controlled substance offense” can result in a substantially increased sentence. Under the United States Sentencing Guidelines, an adult defendant who is convicted of a crime of violence or a felony controlled substance offense is a “career offender” subject to a substantially increased advisory sentencing guidelines range if he or she has two prior felony convictions for a crime of violence or controlled substance offense. Under the Armed Career Criminal Act, a prohibited person (such as someone previously convicted of a crime punishable by more than a year of imprisonment) who is convicted of possessing a firearm or ammunition is subject to a 15-year mandatory minimum prison sentence if he or she has three prior convictions for a crime of violence or a serious drug offense.
Here’s where Ioflupane comes into play. Under federal law, a prior felony drug conviction in state court can only be used to enhance a later federal sentence if the state criminal law is not broader than current federal law. As the United States Court of Appeals for the Seventh Circuit has explained, “our job is straightforward: we compare the state statute to the federal recidivism statute at issue and ask only if the state law is the same as or narrower than the federal law.” But in states like Maryland where Ioflupane remained on the schedules of illegal controlled substances, convictions for cocaine offenses prior to 2020 (when Maryland law caught up to federal law) involved a statute that is broader than current federal law and impermissibly “covers a larger swath of conduct than its federal counterpart,” as the Seventh Circuit put it. The Seventh, Ninth and Eleventh Circuits and several district courts have thrown out sentences that were based on overbroad cocaine statutes in Illinois, Montana, and Florida, and the Fourth Circuit (which covers Maryland) has applied similar principles in United States v. Hope to reverse a mandatory minimum sentence that was based, in part, on an overbroad South Carolina marijuana statute.
Now the District of Maryland has adopted the same approach to reject sentencing enhancements based on pre‑2020 felony cocaine convictions in Maryland. Because the operative Maryland cocaine definition included Ioflupane, but the current federal cocaine definition does not, a Maryland cocaine offense (until 2020) can never qualify as an ACCA “serious drug offense.” On June 2, 2022, in United States v. Keaton, No. 8:18‑cr‑00215-TDC (D. Md. filed Apr. 18, 2018), Judge Theodore D. Chuang in Greenbelt held that a Maryland cocaine distribution offense cannot be a predicate conviction for sentencing a firearms defendant as an Armed Career Criminal:
So because Maryland’s definition of cocaine in 1995 was categorically broader than the definition of cocaine in the current federal schedule, and that, at most, that subsection at issue provided different means but not different elements, the Court finds that the 1995 Maryland conviction is not a predicate serious drug offense for the ACCA enhancement.
Notably, the government did not appeal this ruling. If adopted by other members of the Court, Judge Chuang’s analysis has significant implications. For starters, pre-2020 felony cocaine convictions cannot count towards Armed Career Criminal statute. Additionally, the analysis applies to convictions involving crack cocaine, also known as cocaine base, because courts — including the United States Supreme Court in the 2007 Kimbrough v. United States case — have recognized that there is no material chemical distinction between cocaine powder and crack cocaine. Further, because courts apply interpretations of the language in the Armed Career Criminal Act to similar language in the career offense sentencing guideline, pre-2020 Maryland cocaine convictions likely cannot be used to establish career offense status, with the resulting increased sentencing guidelines range. And finally, based on the Fourth Circuit’s analysis in United States v. Hope, a challenge to a sentence that was improperly enhanced with a pre-2020 Maryland cocaine conviction can be raised in any case that is on direct appeal, even if the issue was not raised in the district court.
This body of law is evolving quickly and a host of other legal questions remain to be sorted out. For example, in federal cases where the appeal process is completed, can similar challenges be brought in collateral post‑conviction motions under 28 U.S.C. § 2255? Based on Fourth Circuit precedent, the answer is probably yes. Alternately, can the issue be raised in a motion for compassionate release under 18 U.S.C. § 3582(c)? Recent changes in Fourth Circuit law have substantially expanded the factors that district judges can consider in compassionate release proceedings.
What is clear, however, is that for a substantial number of federal defendants who received enhanced sentences because of prior Maryland cocaine convictions, the curious regulatory saga of Ioflupane could be the ticket to a new sentencing hearing and the possibility of a substantially reduced period of incarceration.
Stuart Berman joined the firm’s Litigation practice after serving 28 years in the U.S. Department of Justice, including 23 at the U.S. Attorney’s Office in Maryland. He frequently litigates sentencing issues in the District of Maryland and the Fourth Circuit Court of Appeals. For more information about sentencing and appellate issues, contact Stuart at (301) 657‑0729 or [email protected]