### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 18

‐ 1275 and 18

‐ 1598

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

R UBY M OHSIN and

M OHAMMAD K HAN

, Defendants

‐ Appellants

.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:15

‐ cr

‐ 00217

— Charles R. Norgle, Judge

.

____________________

A RGUED S EPTEMBER 20, 2018

— D ECIDED S EPTEMBER 25, 2018

____________________

Before M ANION

, H AMILTON

, and S CUDDER

, Circuit Judges

.

S CUDDER

, Circuit Judge

. Ruby Mohsin and Mohammad

Khan pleaded guilty to conspiring to sell drugs misbranded

as incense or potpourri. The conduct occurred over

approximately eight months in 2011 from a store Mohsin

owned in the Fox Valley Mall in Aurora, Illinois. At

sentencing the district court found that Mohsin and Khan

consciously or recklessly disregarded the risk that the2 Nos. 18

‐ 1275 and 18

‐ 1598

mislabeled products could cause death or serious injury. This

finding had the effect of significantly increasing Mohsin and

Khan’s advisory ranges under the U.S. Sentencing Guidelines.

The finding reflected clear error, however, as the record

before the district court, while supporting a conclusion that

Mohsin and Khan knew customers (and perhaps teenagers)

were smoking the products to obtain marijuana

‐ like highs,

did not support a determination that either Mohsin or Khan

knew the products presented lethal risks to users. *

I

Ruby Mohsin owned and operated the Cigar Box in the

Fox Valley Mall where she employed Khan as a cashier. In

addition to tobacco, the store sold products labeled as incense

and potpourri under names like iAroma

, Zero Gravity

, and

Head Trip

. Mohsin and Khan knew customers were buying

these products—commonly known as synthetic marijuana—

to smoke or ingest.

In June 2011, Mohsin sold nineteen

‐ year

‐ old Max Dobner

and another teenager three packages of iAroma

. Dobner and

his friend then smoked the substance in the mall’s parking lot.

Two hours later Dobner crashed his vehicle into a house in

North Aurora, Illinois. The accident killed Dobner and in time

brought significant attention to the products Mohsin and

Khan were selling out of the Cigar Box.

Mohsin and Khan ultimately were indicted and each later

pleaded guilty to a single count of conspiring to distribute

misbranded drugs, in violation of 18 U.S.C. § 371 and

* Following oral argument, we issued an order directing Khan’s im

‐

mediate release from prison on supervised release. This opinion explains

the basis for that decision.Nos. 18

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21 U.S.C. §§ 331(c) and 333(a)(2). In their plea agreements,

Mohsin and Khan admitted that the synthetic marijuana

products they sold contained inadequate consumer warnings,

failed to identify the products’ active ingredients, and were

mislabeled in an effort to mislead regulators regarding the

products’ status as drugs—all in violation of the Federal

Food, Drug and Cosmetic Act.

In its Presentence Investigation Reports, the Probation

Office recommended that both Mohsin and Khan’s advisory

Guidelines ranges reflect enhancements for engaging in

offense conduct entailing “the conscious or reckless risk of

death or serious bodily injury.” U.S.S.G. § 2B1.1(b)(15)(A).

The proposed enhancements were significant because of their

impact on the resulting advisory ranges. Section

2B1.1(b)(15)(A) calls for a two

‐ level enhancement to a

defendant’s offense level, unless the resulting offense level is

less than 14, in which case the offense level is increased to 14.

Under the Probation Office’s calculations, Mohsin’s total

offense level included a two

‐ level enhancement under

§ 2B1.1(b)(15)(A), resulting in an advisory range of 12 to 18

months’ imprisonment. (This range also reflected an

enhancement pursuant to U.S.S.G. § 3B1.1(c) for Mohsin’s role

as a manager in the offense conduct.) As for Khan’s total

offense level, the Probation Office included a four

‐ level

enhancement under § 2B1.1(b)(15)(A), resulting in an

advisory range of 10 to 16 months’ imprisonment.

Neither defendant’s plea agreement contemplated an

enhancement under § 2B1.1(b)(15)(A). Accordingly, the

Probation Office’s recommendation that the facts warranted

the enhancement for both Mohsin and Khan became the focus

of the ensuing sentencing proceedings.4 Nos. 18

‐ 1275 and 18

‐ 1598

The district court sentenced Mohsin first, and, in doing so,

held a hearing and received testimony from several witnesses.

Dr. Jordan Trecki, a pharmacologist with the Drug

Enforcement Administration, testified that synthetic

marijuana had more severe effects on consumers than

traditional marijuana. A customer of the Cigar Box, Janus

Smith, testified that she observed her son experience a severe

physical reaction to one of the synthetic marijuana products

he had purchased from Mohsin. Smith further testified that

she visited the Cigar Box and warned Mohsin of her son’s

“bad reaction,” explaining that it landed him in the

“hospital.”

Mohsin’s counsel attempted to cross

‐ examine Smith, but

the district court substantially curtailed that effort, stating

that Smith was a credible witness and that the court had heard

everything it needed for sentencing purposes. Had Mohsin’s

counsel been permitted to continue, Smith’s testimony was

vulnerable to meaningful impeachment, as there were

significant inconsistencies between her account at Mohsin’s

hearing and her prior deposition testimony. For example,

Smith stated at her deposition that she never told the hospital

doctors that synthetic marijuana had anything to do with her

son’s visit to the emergency room. Smith also contradicted

herself in describing what, if anything, she observed of her

son’s reaction to smoking synthetic marijuana.

Mohsin’s sentencing hearing further included testimony

from other witnesses. For example, Brycen Rodriguez, a

customer of the Cigar Box, testified about an occasion on

which he bought and smoked synthetic marijuana and

experienced paranoia, extreme anxiety, and difficulty

breathing. The district court also heard testimony from MaxNos. 18

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Dobner’s mother and grandmother about Dobner’s tragic

death and its impact on their family.

After hearing this testimony, the district court determined

that Mohsin’s advisory range was 21 to 27 months’

imprisonment, reflecting a total offense level of 16, which

included the two

‐ level enhancement under § 2B1.1(b)(15)(A)

for engaging in conduct that consciously or recklessly risked

death or serious bodily injury. The enhancement was

warranted, the district court reasoned, because Mohsin had

experience taking and administering medication (to her son)

and, as a result, knew of the dangers of abuse or misuse. Our

review of the sentencing transcript leaves us with the

impression that the district court, while not saying so

expressly, also may have placed some weight on Janus

Smith’s testimony (about her son having to go to the hospital

after having a bad reaction to synthetic marijuana he

purchased at the Cigar Box) to support the enhancement.

In calculating Mohsin’s advisory range, the district court

declined to afford Mohsin credit for acceptance of

responsibility, emphasizing not only that she had filed

multiple sentencing

‐ related motions, but also testified that

her offense conduct reflected a “mistake”—both of which the

district court found inconsistent with someone truly sorry for

her offense conduct. (Mohsin testified at sentencing with the

aid of an interpreter, and it appears she used an Urdu word

for “mistake” that connoted remorse but was misunderstood

by the district court.) In the end, the district court sentenced

Mohsin to 24 months’ imprisonment. Had the court not

applied the two

‐ level enhancement under § 2B1.1(b)(15)(A),

Mohsin’s advisory range would have been 15 to 21 months’

imprisonment.6 Nos. 18

‐ 1275 and 18

‐ 1598

As for Khan, the district court found his advisory

Guidelines range to be 10 to 16 months’ imprisonment based

on a total offense level of 12. While affording Khan two levels

of credit for having accepted responsibility for his offense

conduct (see U.S.S.G. § 3E1.1(a)), the district court found that

Khan’s conduct warranted a four

‐ level enhancement under

§ 2B1.1(b)(15)(A) for entailing a conscious or reckless risk of

death or serious bodily injury. (Khan’s enhancement was four

levels because it took four levels to raise his total offense level,

before receiving acceptance

‐ of

‐ responsibility credit, to 14, as

required by the terms and operation of § 2B1.1(b)(15)(A).) The

district court stated that the enhancement was warranted

because “[Khan] recklessly disregarded the risk [of death or

serious bodily injury] when he sold these products to the

various purchasers not knowing what the effect ultimately

would be on them one way or another.” Or, as the district

court similarly reasoned, Khan “consciously disregarded

what he might have learned if he had looked further into what

he was selling.”

Mohsin and Khan appeal their sentences, focusing on the

error they believe the district court made in finding that their

offense conduct reflected knowledge or awareness that

consumers who smoked or ingested the misbranded incense

or potpourri faced a risk of death or serious bodily injury,

thereby warranting the enhancements under

§ 2B1.1(b)(15)(A).

II

Whether a defendant qualifies for an enhancement is an

issue of fact we review for clear error. United States v. Vivit

,

214 F.3d 908, 920 (7th Cir. 2000). Based upon our review of the

sentencing record, we conclude that Mohsin and Khan haveNos. 18

‐ 1275 and 18

‐ 1598 7

satisfied this standard. The district court’s error was the

product of equating Mohsin and Khan’s knowledge that

customers were using the misbranded incense or potpourri to

achieve a marijuana

‐ like high with Mohsin and Khan

consciously or recklessly risking that the products would

cause death or serious bodily injury.

While § 2B1.1(b)(15)(A) does not define what constitutes

“the conscious or reckless risk of death or serious bodily

injury,” other provisions of the Guidelines and our caselaw

provide important instruction. In a mail fraud case involving

false billings for medical procedures to insurance companies,

we affirmed the district court’s determination that the

defendant physician’s conduct involved “the conscious or

reckless risk of serious bodily injury” and thus warranted a

two

‐ level enhancement under U.S.S.G. § 2F1.1(b)(6)(A), a

provision the Sentencing Commission has since consolidated

with § 2B1.1. See Vivit

, 214 F.3d at 920–22. In doing so, we

explained that recklessness reflects a mental state in which a

defendant “was aware of the risk created by his conduct and

the risk was of such a nature and degree that to disregard that

risk constituted a gross deviation from the standard of care

that a reasonable person would exercise in such a situation.”

Id

. at 920–21 (taking direction on the meaning of “reckless”

from the definition in Application Note 1 to U.S.S.G. § 2A1.4,

the guideline applicable to involuntary manslaughter).

So, too, did our opinion in Vivit explain that “serious

bodily injury” is a phrase of general applicability used

throughout the Guidelines to mean “‘injury involving

extreme physical pain or the protracted impairment of a

function of a bodily member, organ or mental faculty; or

requiring medical intervention such as surgery,8 Nos. 18

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hospitalization or physical rehabilitation.’” Id

. at 920 (quoting

U.S.S.G. § 1B1.1 n.1(J)).

The district court’s primary reason for applying the

enhancement to Mohsin—her personal experience using and

administering medication—does not support the conclusion

that Mohsin had any awareness the synthetic marijuana

products she sold posed a risk of death or serious bodily

injury. General awareness of the health risks of taking

medications does not demonstrate a defendant’s specific

knowledge or awareness of the risks presented by a particular

substance.

To be sure, the record fully supports a finding at the heart

of Mohsin’s criminal conduct—that she knew customers were

ingesting or smoking the mislabeled incense and potpourri

products to achieve a marijuana

‐ like high. But knowing that

someone will smoke a product to achieve a marijuana

‐ like

high does not—without more—show a “conscious or reckless

risk of death or serious bodily injury.” The more was missing.

The government presented testimony, including from the

DEA pharmacologist, that the effects of synthetic marijuana

can be acute and often exceed those of traditional marijuana.

Yet there was an absence of evidence showing Mohsin knew

of these harsher effects or, more to the point, that she had any

awareness that consuming the mislabeled incense or

potpourri risked killing or seriously injuring consumers. And

it is not enough to say (at a higher level of generality) that

such risk is always present with the consumption of illegal

drugs, for § 2B1.1(b)(15)(A) required the district court to find

by a preponderance of evidence that Mohsin was conscious

of or recklessly risked that iAroma

, Zero Gravity

, Head Trip

, or

another of the synthetic marijuana products she sold out ofNos. 18

‐ 1275 and 18

‐ 1598 9

the Cigar Box would kill or seriously injure consumers. On

this record, the case stands in sharp contrast to United States

v. Johnson

, where the facts showed that the defendant

continued to sell cough suppressants over the internet after

learning that two teenagers had died from overdosing on the

product. See 471 F.3d 764, 765–66 (7th Cir. 2016).

The government sought to use Janus Smith to demonstrate

that Mohsin knew that the synthetic marijuana products

posed serious health risks. Indeed, Smith testified that her son

ended up in the hospital after consuming one of the products

sold at the Cigar Box. The district court severely limited cross

‐

examination of Smith, however, and as a result never

permitted Mohsin’s counsel to demonstrate that Smith’s

deposition testimony—in which Smith made statements

suggesting her son went to the hospital for reasons unrelated

to consuming synthetic marijuana—may have substantially

undermined the testimony she provided at Mohsin’s

sentencing hearing. While the full protections of due process

may be diminished at sentencing, fundamental fairness still

requires a district court to base its sentencing determination

on reliable evidence. See United States v. Ghiassi

, 729 F.3d 690,

696 (7th Cir. 2013). Where, as here, a defendant possesses

information that may cast significant doubt on a material

witness’s testimony on a challenged sentencing enhancement,

a defendant has a right to reasonably cross

‐ examine the

witness or at least some opportunity to bring contrary

information to the district court’s attention before the court

makes pertinent sentencing findings, including findings

about the credibility of the witness. In light of the substantial

limitation placed on Mohsin’s cross

‐ examination of Smith, the

district court committed error to the extent, if any, it relied on10 Nos. 18

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Smith’s testimony to find that Mohsin’s offense conduct

warranted an enhancement under § 2B1.1(b)(15)(A).

The record similarly lacks sufficient evidence to support

an enhancement for Khan under § 2B1.1(b)(15)(A). The

district court’s justification—that Khan sold the products,

sometimes to teenagers, knowing they were being ingested

but not knowing what effect they may have—does not

establish that Khan was aware of, or even had reason to

suspect, that the products posed a risk of death or serious

injury. Nor was it proper for the district court to find support

for the enhancement on the basis that Khan failed to learn the

health risks of the products he sold from the Cigar Box. The

guideline enhancement speaks not in terms of negligence, but

rather conscious or reckless risk. The evidence before the

district court did not support imposition of the enhancement,

and this error had the substantial adverse effect of increasing

Khan’s advisory Guidelines range from 0 to 6 months’

imprisonment to 10 to 16 months.

We owe a word about whether Max Dobner’s death,

following his smoking of iAroma purchased from the Cigar

Box, may have supported the enhancements under

§ 2B1.1(b)(15)(A). The government did not advance this

argument, nor did the district court find that Dobner’s death

provided the factual support for enhancing either Mohsin or

Khan’s advisory range. We do not read the record to compel

a contrary conclusion, as no party has presented evidence

showing that Mohsin or Khan learned (at least during the

period of the charged conspiracy) that the mislabeled drugs

may have caused Dobner’s death.

Finally, Mohsin contends that the district court committed

errors at sentencing by denying her credit for acceptance ofNos. 18

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responsibility under U.S.S.G. § 3E1.1 and otherwise

inadequately considering the factors in 18 U.S.C. § 3553(a).

For his part, Khan advances a similar argument regarding the

district court’s consideration of the § 3553(a) factors. We need

not address these contentions, as resentencing of both Mohsin

and Khan is independently warranted as a result of the

district court’s error applying the multi

‐ level enhancement

under § 2B1.1(b)(15)(A). The district court will have an

opportunity to take a fresh look at these other issues at

resentencing.

For these reasons, we VACATE and REMAND for

resentencing. The resentencing of both Mohsin and Khan

shall occur on an expedited basis and without delay. Circuit

Rule 36 shall apply on remand.