September 21st, 2017

​US Court of Appeals for the Fifth Circuit Opinions
United States v. Kiekow

Docket: 14-40700
Opinion Date: September 19, 2017
Judge: Carl E. Stewart
Areas of Law: Criminal Law

The Fifth Circuit affirmed Defendant Kiekow, Uriarte, and Pierre's convictions for conspiracy to distribute or possess with intent to distribute cocaine. The court affirmed the denial of Pierre's motion for a new trial; affirmed Uriarte's sentence; but vacated Kiekow's sentence. The court held that the district court plainly erred by applying a two-level sentencing enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance under USSG 2D1.1(b)(12) (2012), because this enhancement did not exist during the period of the conspiracy, which ended around 2009. Rather than having an exposure of 97-121 as a level 30 offender, Kiekow faced a minimum exposure of 121 months and maximum exposure of 151 months as a level 32 offender. Because the plain error affected Kiekow's substantial rights by imposing a significant risk of a higher sentence, the court remanded for resentencing.