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11th Circuit Rules Counsel Deficient for Failing to Challenge “Usable” Amount in Drug Case

by David Reutter

The U.S. Court of Appeals for the Eleventh Circuit ordered an evidentiary hearing in an ineffective assistance of counsel claim based on counsel’s failure to argue that some waste materials in the drug manufacturing process should not have been included as a “mixture or substance” in the drug quantity determination.

Before the Court was James Griffith’s appeal of an Alabama federal district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Griffith was arrested in February 2008 after the Tallapoosa County Narcotics Task Force raided his residence. A search of the residence uncovered a contact lens case containing 0.31 grams of methamphetamine and several jars and bottles containing “bi-layer liquids.”

A federal jury found Griffith guilty on six counts that included drug trafficking, possession of a weapon by a convicted felon, maintaining a place to manufacture methamphetamine, and possession of methamphetamine. At trial, Melissa Armstrong, a forensic drug chemist with the Alabama Department of Forensic Sciences, testified about the substances in the jars and bottles. Specifically, she testified about the methods she used in analyzing the substances and the results of her testing. Based on her undisputed testimony, the jury concluded Griffith possessed 150.18 grams of methamphetamine. A determination of that amount of meth increased the sentencing range under U.S. Sentencing Guidelines.

In his post-conviction motion, Griffith argued that “from the very beginning” he informed his counsel that the liquids in the bottles and jars were not a usable “mixture or substance.” He explained the three-step process he utilized to manufacture methamphetamine and said he “only started with 2.4 grams” of pseudoephedrine, which could only produce 2.4 grams of methamphetamine.

The Eleventh Circuit found nothing in the record to contradict Griffith’s allegations of fact. It noted the law in the circuit applies the “marketable” or “usable” approach to determine the weight of a “mixture or substance.”

The Court observed that Griffith’s lawyer “never asked Armstrong whether the liquids seized from Griffith’s home were a usable ‘mixture or substance.’” Nor did he ask her if the liquids were waste products, or if the liquids were precursor materials that could be used to manufacture methamphetamine but not consumed themselves. Nor did counsel present or seek to obtain his own evidence about the nature and properties of the liquids. He never pursued any line of questioning or arguments about whether the liquids that were counted against Griffith could properly be considered a usable “mixture or substance.”

The failure by Griffith’s lawyer to “challenge the weight calculations amounted to deficient performance, particularly because the drug quantities were the basis of Griffith’s mandatory minimum sentence and higher guideline range,” the Court determined. As a result, the Court concluded that “Griffith has alleged facts that, if true, show that his counsel’s deficient performance prejudiced him.”

The Eleventh Circuit reversed the district court’s judgment and remanded for an evidentiary hearing on the ineffective assistance of counsel claim involving the failure to challenge the quantity of meth attributed to Griffith. See: Griffith v. United States, 871 F.3d 1321 (11th Cir. 2017). 

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