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Bath Salts, Drug Analogue, Sentencing Confirmed

By George Khoury, Esq. on August 16, 2017 | Last updated on March 21, 2019

The First Circuit affirmed the lower court's decision in the case of U.S. v. Giggey. The appeal questioned the sentence that was imposed on an individual convicted of conspiracy to sell, and possession with intent to sell, both controlled and analogue substances. The substance in question was bath salts, which is just a common name for what could be one of many actual drugs or analogues.

The appeal sought to reduce the sentence based upon various legal theories, including leniency, believe it or not. The appellant, Giggey, received a 72-month sentence, which, as the First Circuit Court of Appeals noted, was significantly less than what the lower court could have imposed. Nevertheless, Giggey sought reconsideration.

Sentencing for Analogues Is Confusing

Bath salts are a serious problem that have caused lots of people lots of trouble. Under the law, even the most recently developed bath salt can be illegal as an analogue. But, when someone is arrested and prosecuted for selling an analogue rather than a specifically listed substance, sentencing can be a little tricky.

The First Circuit explained that to figure out the length of a sentence for a conviction on an analogue drug charge, a court will examine what the sentence would be for the most similar listed controlled substance. The sentence for the analogue should then be issued to reflect the sentence of the controlled substance its meant to mimic.

In Giggey's case, the appellate court rejected arguments that the lower court made improper comparisons, and used the wrong controlled substances to compare the analogues Giggey possessed, when making the sentencing decision. The appellate court found it significant that the lower court found the non-analogue comparator would have landed Giggey a sentence at least 20 months longer. Additionally, it found Giggey's argument, that more leniency should have been granted due to the law being vague, unconvincing.

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