Villanova University School of Law: Digital Repository

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-20-2025 
Jeffrey Cuttler v. Allegheny County 
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Recommended Citation 
"Jeffrey Cuttler v. Allegheny County" (2025). 2025 Decisions. 508. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/508 
This June is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
No. 24-3274 
__________ 
JEFFREY L. CUTTLER, individual Sui Juris, 
 Appellant 
v. 
ALLEGHENY COUNTY; RICH FITZGERALD; LAURA ZASPEL; 
JAMIE REGAN; ELLEN BUANNIC; WILLIAM D. MCKAIN; NICHOLE NAGLE; 
STEPHEN PILARSKI; PATRICK DOWD; T. MATTHEW DUGAN 
____________________________________ 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. Civil Action No. 2:23-cv-01875) 
District Judge:  Honorable Christy Criswell Wiegand 
____________________________________ 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
June 9, 2025 
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
(Opinion filed: June 20, 2025) 
___________ 
OPINION* 
___________ 
PER CURIAM 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2 
Jeffrey Cuttler appeals pro se from the District Court’s order dismissing his civil 
complaint.  For the following reasons, we will affirm the District Court’s judgment.   
In January 2022, Cuttler was terminated from his employment with the Allegheny 
County Office of the Public Defender (OPD) for refusing to comply with Allegheny 
County’s mandate requiring all employees to be vaccinated against the COVID-19 virus.  
He brought a five-count complaint alleging state law claims for wrongful termination, 
intentional infliction of emotional distress, and violation of the Pennsylvania 
Constitution, and federal claims for violations of the Occupational Health and Safety Act 
(OSHA) and of his Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983.  The 
named defendants included Allegheny County, as well as various County executives and 
employees.  
The District Court dismissed the federal claims with prejudice, and declined to 
exercise supplemental jurisdiction over the state law claims.  Cuttler timely appealed. 
We have jurisdiction pursuant to 28 U.S.C. § 1291.  We exercise plenary review 
over the District Court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), and 
will affirm if the complaint fails to state a claim for relief that is plausible on its face.  See 
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011).    
We agree with the District Court that Cuttler’s federal claims fail as a matter of 
law.  First, Cuttler argued that several of the defendants were aware, prior to his 
termination, that the Centers for Disease Control and Prevention (CDC) had announced 
that the COVID-19 vaccine “can’t . . . prevent transmission” of the virus.  ECF No. 22 at 
16. Therefore, he maintained, the “[d]efendants had no legitimate government interest in
 
3 
enforcing the vaccine mandate,” and, in so doing, violated his substantive due process 
rights under the Fourteenth Amendment.  Id. at 17. 
The District Court properly determined that this claim was subject to rational basis 
review because Cuttler had not identified a fundamental right at issue.  See Heffner v. 
Murphy, 745 F.3d 56, 79 (3d Cir. 2014) (noting that rational basis review applies to 
substantive due process challenges unless the challenged statute or regulation “abridges 
certain fundamental rights and liberty interests”).  Cuttler had argued that defendants 
infringed upon his fundamental rights to bodily autonomy and to refuse unwanted 
medical treatment.  See ECF No. 22 at 16-17.  As the District Court explained, Cuttler 
framed the issue too broadly.  The fundamental rights “to refuse unwanted medical 
treatment” and to “bodily integrity,” “involve[ ] health decisions with consequences for 
only the individual involved,” and are therefore distinguishable from “an individual’s 
liberty interest in declining an unwanted [  ] vaccine,” which involves “broad-based 
matters of public health and safety.’”  See Child.’s Health Def., Inc. v. Rutgers, the State 
Univ. of N.J., 93 F.4th 66, 79-80 (3d Cir. 2024).  And, according to the complaint, Cuttler 
was not forcibly vaccinated; rather, he was terminated for refusing to consent to 
vaccination.  We therefore agree with the District Court that the right at issue here is the 
right to refuse a vaccine, which the Supreme Court recognized in Jacobson v. 
Massachusetts, 197 U.S. 11 (1905), does not implicate a fundamental right.  See Child.’s 
Health Def., 93 F.4th at 79-80 (quoting Jacobson, 197 U.S. at 26-27 (recognizing “[t]here 
are manifold restraints to which every person is necessarily subject for the common good, 
including a community’s right to protect itself against an epidemic of disease which 
 
4 
threatens the safety of its members”) (internal quotation marks and citation omitted)); We 
The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 293-94 (2d Cir. 2021) (holding that the 
COVID-19 vaccination requirement did not violate a fundamental right, noting that 
“[v]accination is a condition of employment in the healthcare field; the State is not 
forcibly vaccinating healthcare workers”).   
We also agree that Allegheny County’s vaccine mandate survives rational basis 
review.  See Child’s Health Def., 93 F.4th at 81 (noting that the university “need only set 
forth a satisfactory, rational explanation for its [vaccine] [p]olicy” to survive rational 
basis review (internal quotation  marks omitted)).  The County’s policy indicated that, 
according to the CDC, vaccines “are the best way to slow the spread of COVID-19 and to 
prevent infection by the Delta variant,” which “is more contagious than previously 
dominant variants and has led to a rapid rise in cases and hospitalizations in our area.”1   
ECF No. 23-2 at 1.  “Curbing the spread of COVID-19 is ‘unquestionably a compelling 
interest.’”  Child.’s Health Def., 93 F.4th at 81 (quoting Roman Cath. Diocese of 
Brooklyn v. Cuomo, 592 U.S. 14, 18 (2020)).   
Cuttler maintains that the vaccines were not related to a legitimate government 
interest because, at the time of his termination, the CDC had determined that the vaccines 
“can’t prevent the transmission of COVID-19.”  Appellant’s Br. at  4.  For support, he 
 
1 Cuttler referred throughout his complaint to the County’s COVID-19 policy, and 
Defendants included the policy as an exhibit to their motion to dismiss.  See Pension Ben. 
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (noting that 
a district court may consider “an undisputedly authentic document that a defendant 
attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the 
document”). 
 
5 
cites an August 2021 CNN interview with Rochelle Walensky, the CDC Director at the 
time.  See ECF No. 1-8.  However, even assuming that the interview could be construed 
as official CDC policy, when considered in full it undermines Cuttler’s claim.  Walensky 
stated that “the vaccines are working exceptionally well.  They continue to work well 
with [the Delta variant] with regard to severe illness and death.  They prevent it.”  Id. at 
3.  While Walensky remarked that “what [the vaccines] can’t do anymore is prevent 
transmission,” she suggested that the number of infections that would be transmitted by 
vaccinated individuals was a fraction of the number that would occur via unvaccinated 
people.  Indeed, the CDC website at the time of Cuttler’s termination indicated that the 
vaccines were slowing the spread of the virus and reducing deaths.  See 
https://www.cdc.gov/mmwr/volumes/71/wr/mm7104e1.htm; see also  Child.’s Health 
Def., 93 F.4th at 71 n.3 (noting that we may take judicial notice of information that was 
available on government websites at a particular time); see Brox v. Hole, 83 F.4th 87, 
101 (1st Cir. 2023) (recognizing that a CDC fact-sheet indicating that vaccinated persons 
are strongly protected against COVID-19 is sufficient to show a ‘plausible justification’ 
for adopting [the vaccine mandate policy] which is all that is required to satisfy rational 
basis review”).  
Moreover, it is not for the courts to evaluate the effectiveness of vaccines.  In 
upholding the constitutionality of a smallpox vaccine mandate, the Supreme Court 
emphasized the power of local authorities “to safeguard the public health and the public 
safety.”  Jacobson, 197 U.S. at 25.  It rejected Jacobson’s “offers of proof” that the 
smallpox vaccination was ineffective or harmful, noting that while courts may take 
 
6 
judicial notice of the “opposing theories,” it is the state legislature’s function to determine 
which approach would best protect the public health and safety.  Id. at 30; Child’s Health 
Def., 94 F.th at 79 (noting that “Jacobson did not turn on the longevity of the vaccine or 
the consensus regarding its efficacy”).  The role of the courts, the Supreme Court 
concluded, is merely to determine whether the legislative action is rationally related to 
the protection of the public health and safety.  Jacobson, 197 U.S. at 31; see also Child.’s 
Health Def., 93 F.4th at 81-82.   
We have no doubt that Allegheny County’s vaccine mandate, which was 
employed to limit both the spread of COVID-19 and related hospitalizations and deaths, 
and was based on the CDC’s recommendations, is rationally related to the promotion of 
the public health and safety.  See Child.’s Health Def., 93 F.4th at 81 (concluding that the 
university’s COVID-19 vaccine policy, “grounded in the recommendations of experts, 
including at the CDC,” and employed “to minimize outbreaks,” “prevent or reduce the 
risk of transmission” and “promote the public health of the community” was 
“undoubtedly rational”); Norris v. Stanley, 73 F.4th 431, 435-37 (6th Cir. 2023) 
(affirming the dismissal of a complaint challenging a COVID-19 vaccine mandate 
because, as in Jacobson, the policy “further[ed] a legitimate government interest of 
protecting public health” and thus passed rational basis review).  Cuttler’s allegations 
were therefore insufficient to plausibly state a substantive due process claim. 
Cuttler also failed to adequately plead a 14th Amendment equal protection claim.  
He vaguely asserted that defendants “isolated [him] into an inferior subclass of people” 
(i.e., unvaccinated people), and “created a class [of one] that was subject to unlawful 
 
7 
termination.”  ECF Nos. 22 at 17; 26 at 4.  But he wholly failed to allege that he was 
treated differently from other similarly situated individuals.  See Newark Cab Assoc. v. 
Newark, 901 F.3d 146, 156 (3d Cir. 2018) (recognizing that, in a class-of-one equal 
protection claim, the plaintiff must allege that he has been intentionally treated differently 
from others similarly situated and that “there was no rational basis for the difference in 
treatment”); see also Child.’s Health Def., 93 F.4th at 84, n.38 (recognizing that being 
unvaccinated neither confers protected status nor implicates a fundamental right).  On 
appeal, he claims that he was in a class of one because “unlike other Allegheny County 
Employees who were terminated from employment for their refusal to take the COVID 
vaccination, he provided the defendants with a vaccine exemption request written by his 
physician.”  Appellant’s Br. at 2.  But even if pleaded, those facts are insufficient to state 
a claim under a class-of-one theory because they do not allege that Cuttler was treated 
differently than the other unvaccinated employees; they were similarly terminated.  And, 
in any event, there was a rational basis for the termination – Cuttler’s refusal to comply 
with the vaccine mandate.  See generally Goe v. Zucker, 43 F.4th 19, 31 (2d Cir. 2022) 
(recognizing that there is no fundamental right to a medical exemption from 
immunization).   
Finally, the District Court properly dismissed these federal claims with prejudice 
because any further amendment of the claims would be futile.2  See Jablonski v. Pan Am. 
 
2 Cuttler does not challenge the dismissal of his OSHA claim.  See In re Wettach, 811 
F.3d 99, 115 (3d Cir. 2016) (holding that arguments not developed in an appellant’s 
opening brief are forfeited).  At any rate, as the District Court explained, a violation of an 
OSHA regulation does not give rise to a private cause of action.  See Dravo Corp. v. 
 
8 
World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).   And because the complaint 
failed to state a legally cognizable federal claim, the District Court did not abuse its 
discretion in declining to exercise supplemental jurisdiction over the Plaintiffs’ state law 
claims.  See 28 U.S.C. § 1367(c). 
Based on the foregoing, we will affirm the District Court’s judgment. 
 
 
Occupational Safety and Health Review Comm’n, 613 F.2d 1227, 1230 n.2 (3d Cir. 
1980); cf. Doe I v. Scalia, 58 F.4th 708, 711 (3d Cir. 2023) (recognizing a limited private 
right of action should the Secretary of the Occupational “arbitrarily or capriciously fail[ ] 
to seek” an injunction to remedy workplace hazards requiring immediate attention).    


Jeffrey Cuttler v. Allegheny County

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-23-2025 
Point Blank Protective Apparel and Uniforms LLC v. Vertical 
Source Inc 
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Recommended Citation 
"Point Blank Protective Apparel and Uniforms LLC v. Vertical Source Inc" (2025). 2025 Decisions. 514. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/514 
This June is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
 NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
______________ 
 
No. 24-2511 
______________ 
 
POINT BLANK PROTECTIVE APPAREL AND UNIFORMS LLC, 
Appellant 
 
v. 
 
VERTICAL SOURCE INC; CHRISTOPHER R. NEARY 
______________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil No. 1:22-cv-00567) 
District Judge:  Honorable Edward S. Kiel 
______________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
May 1, 2025 
 
Before: KRAUSE, BIBAS, and MONTGOMERY-REEVES, Circuit Judges. 
 
(Opinion filed: June 23, 2025) 
 
______________ 
 
OPINION 
______________ 
 
MONTGOMERY-REEVES, Circuit Judge. 
 
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
In this appeal, Point Blank Protective Apparel and Uniforms LLC (“Point Blank”) 
seeks to escape its Settlement Agreement and Release (the “Settlement Agreement”)1 
with Vertical Source, Inc. and Christopher Neary (collectively “Vertical Source”).  The 
Settlement Agreement released numerous claims that Point Blank asserted in its pre-
settlement litigation against Vertical Source after their business relationship soured.  Point 
Blank argues that it may rescind the Settlement Agreement as a remedy for Vertical 
Source’s breach of a material term of the Settlement Agreement, which resulted in 
Vertical Source providing no consideration for the promises exchanged in the Settlement 
Agreement.2   
For the reasons explained below, we hold that Point Blank adequately pleaded a 
breach of contract claim relating to the Settlement Agreement, which may open the door 
to rescission of the Settlement Agreement as a remedy for the breach.  If the Settlement 
Agreement is rescinded as a remedy for the breach, then the Settlement Agreement 
cannot bar Point Blank from pursuing Counts I, II, IV, V, and VI (the “Released Claims”) 
because the release in the Settlement Agreement would no longer be operative.  But the 
District Court correctly held that Point Blank cannot pursue its fraudulent inducement 
 
1  The Settlement Agreement contains mutual releases, which provide that “[i]n 
consideration of the covenants and agreements” the parties “fully and forever release[ ]” 
one another “from any and all claims . . . that relate to, arise out of, or pertain” to 
“allegations contained in the” original complaint.  App. 9.   
2  Under Point Blank’s theory of the case, once Vertical Source failed to provide any 
consideration for the Settlement Agreement, Point Blank had the right to either sue for 
breach of contract or treat the Settlement Agreement as rescinded and revert to the pre-
settlement litigation.   
3 
 
claim in Count VII.  Thus, we will affirm in part and vacate in part the District Court’s 
order dismissing the complaint, and we will remand for further proceedings consistent 
with this opinion.   
I. BACKGROUND 
In 2018, Point Blank entered into a joint venture agreement (the “JV Agreement”) 
with Vertical Source, Inc.  Over the next few years, Vertical Source repeatedly failed to 
fulfill its obligations.3  So in 2022, Point Blank sued Vertical Source for various claims 
related to the JV Agreement.  While the lawsuit was pending, the parties engaged in 
several months of negotiations and entered into the Settlement Agreement.   
As part of the Settlement Agreement, the parties agreed to release all asserted 
claims against one another in exchange for a series of dependent obligations.  Vertical 
Source’s first obligation was to fund an escrow account, but it failed to disclose that its 
ability to fund depended on an outside event.  When the outside event did not occur, 
Vertical Source did not fund the escrow account.  So Point Blank filed its amended 
complaint, which asserted all claims from the initial complaint and added a claim for 
fraudulently inducing Point Blank to enter into the Settlement Agreement and an 
imbedded claim for breach of contract.  Vertical Source then moved to dismiss the 
amended complaint, arguing that the Settlement Agreement barred the claims.4  Point 
 
3  The facts are derived from Point Blank’s Amended Complaint and taken as true.  
Connelly v. Lane Constr. Corp., 809 F.3d 780, 790 (3d Cir. 2016). 
4  Vertical Source did not move to dismiss Count III (declaratory judgment); and after the 
District Court’s order, Count III remained.  To expedite this appeal, Point Blank 
 
4 
 
Blank responded that the Settlement Agreement and any release therein was 
unenforceable because Vertical Source breached a material term by failing to provide any 
consideration, which allowed Point Blank to rescind the Settlement Agreement.5  The 
District Court held that the Settlement Agreement was enforceable and barred all claims 
and granted the motion to dismiss.  Point Blank timely appealed.6 
II. DISCUSSION 
On appeal, we must determine whether Point Blank has sufficiently alleged a 
claim for breach of the Settlement Agreement.  If it has, rescission may be an available 
remedy.  And if the Settlement Agreement is rescinded, then it cannot bar the Released 
Claims—the basis for the dismissal.  Thus, this opinion will determine whether Point 
Blank alleged a claim for breach of the Settlement Agreement, whether rescission is an 
available remedy for the breach claim, and whether the Released Claims are definitively 
 
voluntarily dismissed Count III.  Thus, the issues on appeal concern Counts I, II, IV, V, 
VI, and VII.   
5  Vertical Source argues on appeal that Point Blank forfeited its rescission argument by 
failing to raise it before the District Court.  Although not fully fleshed out below, Point 
Blank argued that the Settlement Agreement was unenforceable because “Defendants 
never funded the escrow account.” S. App. 47.  An argument is forfeited when it is not 
raised in the District Court.  See Barna v. Bd. of Sch. Dir. Of Panther Valley Sch. Dist., 
877 F.3d 136, 147 (3d Cir. 2017).  The point of forfeiture is to “protect litigants from 
unfair surprise.”  Id. at 146.  Because Point Blank did alert Vertical Source that it deemed 
the releases unenforceable, and Vertical Source states that it “anticipated” these 
arguments, Point Blank did not forfeit the rescission argument.  Resp. Br. 18. 
6 The District Court had jurisdiction over this case under 28 U.S.C. § 1332.  We have 
jurisdiction over this appeal under 28 U.S.C. § 1291.  We review de novo a district 
court’s decision to grant a motion to dismiss.  See Kalu v. Spaulding, 113 F.4th 311, 324 
(3d Cir. 2024) (citing Doe v. Univ. of Scis., 961 F.3d 203, 208 (3d Cir. 2020)). 
5 
 
barred.  Finally, we will determine whether Point Blank may pursue its fraudulent 
inducement claim in Count VII.   
Under Florida law, to state a claim for breach of contract, a plaintiff must allege 
that the parties entered a valid contract, that there was a material breach of the contract, 
and that resulting damages occurred.  Deauville Hotel Mgmt., LLC v. Ward, 219 So. 3d 
949, 953 (Fla. Dist. Ct. App. 2017).  All agree that the parties entered a valid contract—
the Settlement Agreement.7  And the complaint alleges that Vertical Source materially 
breached the contract: 
• Vertical Source was “required to execute a related escrow agreement 
and fund an escrow account . . . within five days of [Point Blank’s] 
execution of the Settlement Agreement,” App. 150 (¶ 54);  
• Vertical Source “failed to fund the escrow account,” id. ( ¶ 56);  
• “in breach of their obligations under the Settlement Agreement[, 
Vertical Source] never funded the escrow account,” id. (¶ 57); and  
• Vertical Source’s “ability to fund the escrow account by the agreed-to 
deadline was material,” App. 151 (¶ 59).   
Lastly, Point Blank alleges that it was damaged by the breach and seeks numerous forms 
of relief, including “equitable and other relief as this Court deems just and appropriate,” 
which includes rescission.  App. 161.  These allegations sufficiently pleaded a claim for 
 
7 Point Blank argues that there was no valid contract because there was a failure of 
consideration.  However, the Settlement Agreement provides that its terms shall be 
construed according to Florida law, and under Florida law, “failure of consideration is not 
alone sufficient to support a claim for rescission or cancellation of the contract.”  Cintas 
Corp. No. 2 v. Schwalier, 901 So. 2d 307, 309 (Fla. Dist. Ct. App. 2005).  Therefore, the 
Settlement Agreement is valid.   
6 
 
breach of the Settlement Agreement.  While a more clearly crafted complaint would have 
included a separate count for breach of the Settlement Agreement, it would be 
disingenuous of us to ignore the breach of contract claim that is reflected in the 
allegations.8    
But this conclusion naturally leads to another question.  Why does the existence of 
a claim for breach of the Settlement Agreement preclude dismissal of the Released 
Claims?  It is because under Florida law, when a party breaches a “dependent covenant” 
that “goes to the whole consideration of the contract”—i.e., “where it is such an essential 
part of the bargain that the failure of it must be considered as destroying the entire 
contract”—the “equitable remedy” of “[r]escission” is available.  Steak House, Inc. v. 
Barnett, 65 So. 2d 736, 738 (Fla. 1953); Billian v. Mobil Corp., 710 So. 2d 984, 990 (Fla. 
Dist. Ct. App. 1998).  That is the essence of Point Blank’s allegations.   
 
8  We acknowledge that Point Blank’s amended complaint is not a model of clarity, as 
evidenced by its failure to demarcate the breach of the Settlement Agreement claim with 
a header.  But, luckily for Point Blank, the Federal Rules of Civil Procedure do not 
require headers.  Cf. In re Lipitor Antitrust Litig., 855 F.3d 126, 144–45 (3d Cir. 2017) 
(“[R]egardless of how a complaint labels its claims or counts, courts are to look to the 
complaint and its allegations as a whole to identify the plaintiff’s claims and any theories 
undergirding those claims.”).  Dismissing the breach of contract claim because it lacks a 
header would elevate form over substance, which is inappropriate.  So we must look to 
the actual allegations to determine if Point Blank has provided a short and plain statement 
sufficient to put Vertical Source on notice of its claim for breach of the Settlement 
Agreement.  And here, the complaint’s substance reveals such a claim.  We are by no 
means encouraging parties to format their complaints so that they fail to clearly identify 
their claims.  But when a claim is apparent from the allegations, we cannot ignore it. 
 
7 
 
According to Point Blank, Vertical Source’s failure to fund the escrow account 
breached a dependent covenant in the Settlement Agreement.  The Settlement 
Agreement’s consideration section lists a series of occurrences, and the completion of 
each must occur in sequential order.  Vertical Source’s first obligation was to pay funds 
into the escrow account, and the rest of the consideration was to follow; without the 
funds, there was virtually no consideration for the Settlement Agreement.  Point Blank 
alleges that funding the escrow account was so essential to the Settlement Agreement that 
it would not have entered into the Settlement Agreement if Vertical Source could not fund 
the escrow account, and Vertical Source’s failure to fund means there was no 
consideration for the Settlement Agreement.  Stated differently, Vertical Source 
“destroy[ed] the entire contract” by “fail[ing] to fund the escrow account—the critical 
step on which all the subsequent terms of the settlement agreement were contingent.”  
Steak House, 65 So. 2d at 738; Opening Br. 13.  As a result, “none of the subsequent 
series of contingent steps contemplated by the [S]ettlement [A]greement were 
performed.”  Opening Br. 13.  At the pleading stage, Point Blank has sufficiently 
established that funding the escrow account was so paramount that Vertical Source’s 
failure to fund breached a dependent covenant of the Settlement Agreement.   
Because Point Blank sufficiently alleged a claim for a breach of a dependent 
covenant in the Settlement Agreement, the dismissal of the Released Claims with 
prejudice was improper.  While the Released Claims are not currently live claims, Point 
Blank might be able to revive them if its breach of the Settlement Agreement claim is 
successful and if the District Court awards equitable rescission of the Settlement 
8 
 
Agreement.  The ability to pursue the Released Claims is, in essence, the relief sought for 
the successful litigation of the breach of the Settlement Agreement claim.  And, because 
Rule 12(b)(6) only allows dismissal for the “failure to state a claim upon which relief can 
be granted,” it was improper to dismiss the Released Claims, which function as the 
ultimate relief of the sufficiently pleaded breach of contract claim.  Fed. R. Civ. P. 
12(b)(6).  Therefore, the District Court’s dismissal of Counts I, II, IV, V, and VI was in 
error and is vacated. 
We note that Point Blank also included a claim for fraudulent inducement to enter 
into the Settlement Agreement, which, unlike the Released Claims, was not included in 
the pre-settlement lawsuit and is not subject to the Settlement Agreement’s release.  It 
alleges that, absent a finding of breach of the Settlement Agreement, it was fraudulently 
induced to sign the Settlement Agreement.  But the District Court properly dismissed this 
claim because three separate provisions unequivocally disclaimed fraud and barred the 
parties from bringing any fraud claims.  Under Florida law, those claims were properly 
dismissed.  See Oceanic Villas, Inc. v. Godson, 4. So. 2d 689, 690 (Fla. 1941).  Therefore, 
we affirm the dismissal of Count VII.  
III. CONCLUSION 
Accordingly, we will affirm in part and vacate in part the District Court’s order 
dismissing with prejudice the Released Claims, and we will remand for further 
proceedings consistent with this opinion.   


Point Blank Protective Apparel and Uniforms LLC v. Vertical Source Inc

USA v. Ronell Moses, Jr.

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-15-2025 
Leon Drummond v. Progressive Specialty Insurance Co 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Leon Drummond v. Progressive Specialty Insurance Co" (2025). 2025 Decisions. 564. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/564 
This July is brought to you for free and open access by the Opinions of the United States Court of Appeals for the 
Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 
 
No. 24-1267 
 
LEON DRUMMOND; LEE WILLIAMS, On behalf of themselves and all others 
similarly situated; YESHONDA DRIGGINS 
 
v. 
 
PROGRESSIVE SPECIALTY INSURANCE CO; PROGRESSIVE ADVANCED 
INSURANCE CO, 
Appellants 
 
(E.D. Pa. No. 5:21-cv-04479) 
 
ORDER AMENDING OPINION 
 
The order which is the subject of this appeal was entered on August 11, 2023 by the 
Honorable Edward G. Smith, United States District Judge for the Eastern District of 
Pennsylvania.  Judge Smith passed away on November 27, 2023 while the appeal was 
pending.  Because of Judge Smith’s passing, the case was reassigned to the Honorable 
Mark A. Kearney. 
 
The precedential opinion and judgment entered on July 7, 2025 are hereby amended to 
reflect that Judge Smith presided over the lower court proceedings at the time the appeal 
was taken and the case was later assigned to Judge Kearney.  As this amendment does not 
alter the substance of the opinion or judgment the filing date of those documents will not 
be changed. 
 
For the Court,  
         
 
     
PATRICIA S. DODSZUWEIT,  
Clerk 
 
Date: July 15, 2025 
Lmr/cc: All Counsel of Record  
 


Leon Drummond v. Progressive Specialty Insurance Co

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-16-2025 
Jennifer Zuch v. Commissioner of Internal Revenue 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Jennifer Zuch v. Commissioner of Internal Revenue" (2025). 2025 Decisions. 574. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/574 
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UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
 
_______________ 
 
No. 22-2244 
_______________ 
 
JENNIFER ZUCH, 
                                                      Appellant 
 
v. 
 
COMMISSIONER OF INTERNAL REVENUE 
 
_______________ 
 
On Appeal from the United States Tax Court 
(IRS 1:14-25125) 
Tax Court Judge:  Honorable Lewis R. Carluzzo 
_______________ 
 
Argued April 26, 2023 
Submitted on Remand from the Supreme Court of the United States 
on July 14, 2025 
 
 
Before:  KRAUSE and BIBAS*, Circuit Judges 
 
JUDGMENT ORDER 
 
In accordance with the mandate of the Supreme Court of the United States issued 
July 14, 2025, it is ORDERED and ADJUDGED the order of the Tax Court entered on 
April 6, 2022 is hereby AFFIRMED.  The Clerk is directed to issue the mandate 
forthwith. 
 
 
* The Honorable Kent A. Jordan was a member of the merits panel. Judge Jordan retired 
from the Court on January 15, 2025 and did not participate in the consideration of this 
matter on remand.  This order is issued filed by a quorum of the Court. 28 U.S.C. § 46 
and Third Circuit IOP 12.1. 
 
 
BY THE COURT, 
 s/ Cheryl Ann Krause    
Circuit Judge 
ATTEST: 
s/Patricia S. Dodszuweit 
Clerk 
DATE: July 16, 2025 


Jennifer Zuch v. Commissioner of Internal Revenue

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-18-2025 
USA v. Loren Clark, Jr. 
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Recommended Citation 
"USA v. Loren Clark, Jr." (2025). 2025 Decisions. 578. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/578 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1892 
____________ 
 
UNITED STATES OF AMERICA 
                                       
v. 
 
LOREN B. CLARK, JR., 
Appellant 
____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(District Court No. 3:24-po-00002-001) 
District Judge:  Honorable Karoline Mehalchick 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
May 20, 2025 
____________ 
 
Before:  PHIPPS, CHUNG, and ROTH, Circuit Judges 
 
(Filed: July 18, 2025) 
____________ 
 
OPINION* 
____________ 
CHUNG, Circuit Judge. 
Following a traffic stop in the Delaware Water Gap National Recreation Area, 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 
not constitute binding precedent. 
 
2 
 
park rangers discovered marijuana and cocaine in appellant Loren Clark’s vehicle.  Clark 
moved to suppress the evidence seized from his van, arguing that the rangers 
impermissibly extended the traffic stop without reasonable suspicion of other wrongdoing 
in violation of Rodriguez v. United States, 575 U.S. 348 (2015).  The District Court 
denied his motion after an evidentiary hearing.  Clark pleaded guilty and now appeals. 
For the reasons set forth below, we will affirm. 
I. BACKGROUND1 
 
In May 2023, park rangers James Papai and Ryan Maloney were on duty in the 
Delaware Water Gap National Recreation Area.  After Ranger Papai observed a white 
van cross the center line on the roadway, the rangers began to follow the van.  Dispatch 
advised the rangers that the van’s registration was valid and current, and that the vehicle 
had not been reported as stolen.   
When the rangers initiated a traffic stop, the van pulled to the right side of the 
road, crossed the fog line, and began to stop.  Before the rangers were able to exit their 
vehicle, and as the van was still “creeping” forward, Clark opened the driver’s side door 
of the van.  App. at 21.  In response, Ranger Papai opened his door and commanded 
Clark to stay in his vehicle.  Clark closed the door, but almost immediately reopened it 
and got out.  The van eventually came to a complete stop.  Clark then walked toward the 
rangers, turned toward the van, and put his hand in his pocket.  Ranger Papai drew his 
firearm, directed Clark to show his hands, and ordered him back into the vehicle.  Clark 
 
1 Because we write for the parties, we recite only the facts pertinent to our decision. 
 
3 
 
complied.  As the rangers approached the vehicle, Ranger Papai observed “a lot of 
[frenetic] movement in the driver’s compartment.”  App. at 21.  Once at the van, they 
asked for and were provided Clark’s license.  After the rangers obtained his license, Clark 
lit a cigarillo.   
Rangers Papai and Maloney returned to their vehicle to run Clark’s driver’s 
license, which came back clear.  The two rangers then discussed Clark’s behavior.  The 
rangers “did not catch any odor of alcohol,” did not “hear any slurring in his speech,” and 
did not see Clark “brace himself on the side of the van.”  App. at 24.  Clark’s “eyes 
look[ed] fine” and “his speech [wa]sn’t slurred.”  DX1.4 at 2:36-3:00.  Nonetheless, the 
rangers suspected that Clark was either driving under the influence or was hiding 
contraband.  The two agreed that Clark’s behavior was “definitely odd enough to 
continue the investigation.”  DX 1.4 at 4:15-23.   
Following the rangers’ discussion, Ranger Papai asked Clark to get out of his 
vehicle and walk to the back of the van for a sobriety check.  Clark complied and the 
rangers proceeded to question Clark for approximately two minutes about whether he was 
driving under the influence and if he was concealing contraband.   
Ranger Maloney then asked a series of questions about Clark’s drinking and asked 
about his prior drug use.  The rangers then asked if there was anything illegal in the car 
and Clark responded that there was not.  Nonetheless, the rangers sought and received 
consent to search Clark’s passenger compartment.  After Ranger Papai found marijuana, 
he searched the back of Clark’s van where he located almost 15 grams of crack cocaine.  
 
4 
 
Approximately eight minutes elapsed between the initiation of the traffic stop and Clark’s 
consent to search his van. 
Following the search, the rangers arrested Clark, who was charged with a traffic 
violation, possession of marijuana, and possession of crack cocaine.  Clark filed a motion 
to suppress the drugs found in his van, arguing that the traffic stop was unlawfully 
extended in violation of Rodriguez, 575 U.S. 348.  After an evidentiary hearing, the 
District Court denied Clark’s motion to suppress.  It held that the rangers did not deviate 
from the mission of the traffic stop at any point and that there was therefore no 
“Rodriguez moment.”  App. at 75-76.  It also held that any investigation unrelated to the 
traffic stop was supported by reasonable suspicion that Clark was engaged in criminal 
activity.   
Clark pled guilty to the traffic violation and possession of crack cocaine pursuant 
to a plea agreement which preserved Clark’s right to appeal the denial of his suppression 
motion.  On April 25, 2024, the District Court sentenced Clark to pay a $5,000 fine.  
Clark timely appealed.   
II. DISCUSSION2 
 
Clark argues that the rangers unlawfully extended his traffic stop without 
 
2 The District Court had subject-matter jurisdiction under 18 U.S.C. § 3231.  This 
Court has jurisdiction under 28 U.S.C. § 1291.  When reviewing an order denying a 
motion to suppress evidence, we review a district court’s factual findings for clear error 
and review its legal determinations de novo.  United States v. Stewart, 92 F.4th 461, 466 
(3d Cir. 2024).  Because the District Court denied the motion to suppress, we view the 
facts in the light most favorable to the government.  Id. 
 
 
5 
 
reasonable suspicion that he was involved in other criminal activity, as required by 
Rodriguez, 575 U.S. at 354-55.  We disagree with Clark and conclude that, even if the 
rangers extended the traffic stop, the extension was supported by reasonable suspicion 
that Clark was in possession of contraband.3 
A traffic stop “can become unlawful if it is prolonged beyond the time reasonably 
required to complete [the] mission” of the stop.  Illinois v. Caballes, 543 U.S. 405, 407 
(2005); Rodriguez, 575 U.S. at 354.  The “mission” of a traffic stop is “to address the 
traffic violation that warranted the stop and attend to related safety concerns.”  
Rodriguez, 575 U.S. at 354 (internal quotation marks and citations omitted).  Once the 
law enforcement officer addresses these matters, the seizure must end unless the officer 
has reasonable suspicion of additional illegal activity.  United States v. Hurtt, 31 F.4th 
152, 159 (3d Cir. 2022). 
Our inquiry therefore “proceeds in two steps.”  Stewart, 92 F.4th at 467.  “First, 
we determine the moment when the stop was measurably extended, which we have called 
the ‘Rodriguez moment.’”  Id. (quoting United States v. Green, 897 F.3d 173, 179 (3d 
Cir. 2018)).  “Second, we determine whether the facts available to the officer up to that 
moment established reasonable suspicion of criminal activity.”  Id. 
 
3 The District Court found that there was reasonable suspicion that Clark had 
committed a different crime, driving while under the influence.  We need not address 
whether and when there was reasonable suspicion for that crime as we affirm for other 
reasons.  United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005) (“We may affirm on 
any ground supported by the record.”). 
 
6 
 
Clark appears to identify two possible “Rodriguez moments” when the rangers 
strayed from their original mission of investigating a traffic violation: (1) after the 
rangers asked Clark out of his vehicle and had the opportunity to observe his walking and 
talk to him; and (2) when the rangers began asking Clark “about his historical drug use, 
whether he was transporting contraband, and for consent to search the passenger 
compartment of his van.”  Opening Br. at 17.  We need not decide if either of these 
instances amounted to a “Rodriguez moment” because there was reasonable suspicion of 
criminal activity—specifically, that Clark was in possession of contraband—throughout 
the eight-minute stop. 
Reasonable suspicion is measured objectively.  United States v. Brown, 448 F.3d 
239, 246 (3d Cir. 2006).  To satisfy this standard, a law enforcement officer needs only 
“some minimal level of objective justification[.]”  United States v. Sokolow, 490 U.S. 1, 
7 (1989) (internal quotation marks omitted).  When making “reasonable-suspicion 
determinations, we … must look at the totality of the circumstances … to see whether the 
detaining officer has a particularized and objective basis for suspecting legal 
wrongdoing.”  United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation 
marks omitted).  “We afford significant deference to a law enforcement officer’s 
determination of reasonable suspicion” given their “experience and specialized training to 
make inferences from and deductions about the cumulative information available to them 
that might well elude an untrained person.”  United States v. Foster, 891 F.3d 93, 104 (3d 
Cir. 2018) (internal quotation marks omitted). 
 
7 
 
Considering all circumstances at the time of either Rodriguez moment identified 
by Clark, there was reasonable suspicion that Clark was in possession of contraband.  By 
the time the rangers asked Clark to exit his vehicle for questioning, the rangers had 
observed Clark: (1) open his door as the van was still moving; (2) emerge from his 
vehicle while it was still moving; (3) walk toward the rangers’ vehicle, turn his body 
away, and quickly put his hand in his pocket; (4) move frenetically once back inside his 
van; and (5) light a cigarillo once he re-entered his van.  Of particular importance is that 
Clark emerged from his vehicle before being prompted and lit a cigarillo after he was 
ordered back in the vehicle.  In Ranger Maloney’s experience, to which we give 
significant deference, people “that jump out of the vehicle right away are trying to 
distance themselves from something from that vehicle,” often because they are “nervous 
about something that’s in the vehicle.”  App. at 36.  Moreover, lighting a cigarillo, while 
often benign, also supports a reasonable suspicion that the individual was attempting to 
mask the scent of drugs or can reasonably be interpreted as evincing nervousness.  As 
Ranger Maloney testified, a “freshly lit…cigarette” is often an indication that a person is 
“trying to cover some type of odor.”  App. at 37; see also Stewart, 92 F.4th at 471; United 
States v. Christian, 43 F.3d 527, 530 (10th Cir. 1994); United States v. Neumann, 183 
F.3d 753, 756 (8th Cir. 1999); United States v. Moore, 795F.3d 1224, 1230 (3d Cir. 
2015).4  The other circumstances identified above further support a reasonable suspicion 
 
4 We do not rely on Ranger Maloney’s testimony to establish his subjective view of 
whether Clark lit his cigarillo to hide the odor of contraband.  Rather, his testimony 
 
 
8 
 
that Clark had contraband in his vehicle.  This reasonable suspicion was present from the 
beginning of the stop to the end, including when the rangers began questioning him about 
his previous drug use.5 
III. CONCLUSION 
 
For the reasons set forth above, we will affirm. 
 
establishes lighting a cigarillo supports an objectively reasonable suspicion that Clark 
was hiding contraband. 
5 Clark disputes that his answers to roadside questioning support a finding of 
reasonable suspicion.  We perceive no clear error in the District Court’s conclusion that 
Clark’s answers to simple questions were at times evasive or non-sensical.  While our 
reasonable suspicion determination does not rely upon Clark’s answers, we note that the 
District Court’s finding supports a conclusion that there was reasonable suspicion that 
Clark possessed contraband.  See Stewart, 92 F.4th at 468 (noting that “evasive, 
inconsistent, and downright puzzling answers” may contribute to reasonable suspicion). 


USA v. Loren Clark, Jr.

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-21-2025 
Stephen McCarthy v. DEA 
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Recommended Citation 
"Stephen McCarthy v. DEA" (2025). 2025 Decisions. 580. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/580 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-2704 
____________ 
 
STEPHEN MCCARTHY, P.A., 
                                           Petitioner 
                                       
v. 
 
UNITED STATES DRUG ENFORCEMENT ADMINISTRATION 
____________ 
 
On Petition for Review of an  
Order of the Drug Enforcement Administration 
(Agency No. 23-40) 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)  
May 20, 2025 
____________ 
 
Before:  PHIPPS, CHUNG, and ROTH, Circuit Judges 
 
(Filed: July 21, 2025) 
____________ 
 
OPINION* 
____________ 
CHUNG, Circuit Judge. 
Stephen McCarthy, P.A., petitions for review of the order issued by the 
 
*  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 
not constitute binding precedent. 
 
2 
Administrator of the Drug Enforcement Administration (DEA) revoking his Certificate of 
Registration (COR) and denying any pending applications to modify or renew that COR.  
He argues that the Administrative Law Judge (ALJ) who recommended revocation was 
unconstitutionally protected from removal and that the ALJ’s decision adopted by the 
Administrator was arbitrary and capricious and an abuse of discretion.  Because 
McCarthy has failed to show the requisite link between any allegedly unconstitutional 
removal protections and his injury and because the revocation decision was neither 
arbitrary and capricious nor an abuse of discretion, we will deny the petition. 
I. BACKGROUND1 
 
McCarthy is a physician assistant who held a DEA COR allowing him to prescribe 
Schedule II through V controlled substances.  McCarthy prescribed controlled substances 
despite the fact that he was not being supervised by a physician with whom he had a 
written agreement as required by Pennsylvania law.  See 63 Pa. Stat. § 422.13(a), (e); 49 
Pa. Code § 18.152(a).  In response to his conduct, on April 21, 2023, the DEA issued 
McCarthy an Order to Show Cause why his continued registration was not inconsistent 
with the public interest. See 21 U.S.C. § 824.  Due to his apparent misconduct, the order 
proposed revoking McCarthy’s COR and denying any pending applications for 
modification or renewal of his registration.   
On August 31, 2023, a hearing was held before ALJ Paul E. Soeffing.  The DEA 
presented evidence that between August 24, 2022, and September 20, 2022, and again 
 
1 Because we write for the parties, we recite only the facts pertinent to our decision. 
 
3 
between October 6, 2022, and November 8, 2022, McCarthy issued approximately 
seventeen prescriptions for controlled substances while not covered by a written 
agreement.  McCarthy did not dispute this.  Instead, he argued that, during the time, he 
believed he was covered by a previous agreement with “Dr. F.”  Although that agreement 
was inactivated in October of 2019, McCarthy claimed that he believed this agreement 
was still in place because he never received notice of its termination, because his lack of 
communication with Dr. F was not unusual so there was no reason to believe otherwise, 
and because the Pennsylvania Licensing System (PALS) did not show that the agreement 
was inactive.  The ALJ rejected these arguments because McCarthy acknowledged that 
PALS was not always reliable and because the evidence indicated that the termination 
letter ending McCarthy’s written agreement with Dr. F was provided to McCarthy, that 
McCarthy and Dr. F were no longer employed by the same employer, that Dr. F and 
McCarthy spoke on only one occasion in 2019, and that McCarthy did not list Dr. F as 
the supervising physician on the prescriptions he issued during the relevant time period.   
The ALJ concluded that the DEA had therefore proven its prima facie case that 
McCarthy’s continued registration was inconsistent with the public interest.  
Accordingly, the burden shifted to McCarthy to show that he could be entrusted with a 
COR.  After considering McCarthy’s failure to unequivocally admit fault, his limited 
remedial action, the egregiousness of his conduct, and the need for deterrence, the ALJ 
determined that McCarthy had not met his burden and recommended that his COR be 
revoked and any pending applications for renewal or modification of his COR be denied.  
The Administrator of the DEA adopted the ALJ’s recommendation in its entirety and 
 
4 
ordered that McCarthy’s COR be revoked and any pending applications for renewal or 
modification of his COR be denied.   
McCarthy timely petitioned for review.   
II. DISCUSSION2 
 
McCarthy asks us to vacate the Administrator’s order asserting that the ALJ was 
unconstitutionally protected from removal and that the ALJ’s decision adopted by the 
Administrator was arbitrary and capricious and an abuse of discretion.  We reject both 
arguments and will affirm.3 
 
2  The DEA had jurisdiction pursuant to 21 U.S.C. §§ 823(g)(1) and 824(a) and 28 
C.F.R. § 0.100(b).  We have jurisdiction pursuant to 21 U.S.C. § 877.  We review 
questions of constitutional law de novo.  Dinnall v. Gonzales, 421 F.3d 247, 251 (3d Cir. 
2005).  “Agency decisions, such as the … Administrator’s Order, may be set aside only if 
arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”  
Humphreys v. Drug Enf’t Admin., 96 F.3d 658, 660 (3d Cir. 1996) (citing 5 U.S.C. 
§ 706(2)(A)).  Such agency decisions are entitled to “substantial deference” and “we must 
not simply substitute our judgment for that of the agency.”  Id. at 664.  Additionally, the 
agency’s findings of fact are “conclusive” “if supported by substantial evidence.”  21 
U.S.C. § 877. 
3 McCarthy also raises an Appointments Clause challenge, asserting that the ALJ 
was not appointed by the Attorney General as he argues is required.  He did not raise this 
challenge before the agency, and the parties dispute whether he can properly raise it now.  
See generally Carr v. Saul, 593 U.S. 83 (2021) (discussing issue exhaustion in 
administrative adjudications and concluding that issue exhaustion did not apply to 
Appointments Clause challenges to the appointment of Social Security Administration 
ALJs).  We assume without deciding that he can raise his Appointments Clause challenge 
now and reject it as factually incorrect.  Because this challenge was not raised before the 
agency, the initial record contained no information regarding who appointed the ALJ.  On 
appeal, the Government moved to supplement the record and provided a document 
showing that the ALJ had been appointed by the Attorney General on December 1, 2020.  
We now grant that motion, see Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 
199, 226 (3d Cir. 2009), and reject McCarthy’s Appointments Clause challenge, see U.S. 
Const. art. II, § 2, cl. 2. 
 
5 
A. Removal Protections Challenge 
 
DEA ALJs are removable by the Attorney General “only for good cause 
established and determined by the Merit Systems Protection Board.”  5 U.S.C. 
§ 7521(a).4  Members of the Merit Systems Protection Board, in turn, are removable by 
the President, but “only for inefficiency, neglect of duty, or malfeasance in office.”  5 
U.S.C. § 1202(d).  McCarthy argues, and the Government now concedes, that this 
structure amounts to unconstitutional “multilevel protection from removal” under Free 
Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 484 (2010).  Of course, the 
Government’s concession does not govern our analysis.  Cf. Marbury v. Madison, 5 U.S. 
(1 Cranch) 137, 177 (1803).  Nonetheless, we need not resolve this thorny issue here 
because McCarthy cannot bring his removal-protection challenge. 
In order to bring a removal-protection challenge, a litigant “must show that the 
constitutional infirmity actually caused harm.”  NLRB v. Starbucks Corp., 125 F.4th 78, 
88 (3d Cir. 2024) (petitioner failed to link removal-protection infirmity to an actual harm 
and therefore could not bring challenge); see also CFPB v. Nat’l Collegiate Master 
Student Loan Tr., 96 F.4th 599, 607 (3d Cir. 2024) (“[A]ctions taken by an improperly 
insulated director are not ‘void’ and do not need to be ‘ratified’ unless a plaintiff can 
show that the removal provision harmed him.” (quoting Collins v. Yellen, 594 U.S. 220, 
259 (2021))).  Stated differently, a litigant must show a causal “link” between the 
 
4 “Section 7521 applies to any ALJs appointed under 5 U.S.C. § 3105.  DEA ALJs 
are appointed under 5 U.S.C. § 3105 pursuant to 5 U.S.C. § 556(b)(3) and 21 C.F.R. 
§ 1316.42(f).”  Rabadi v. Drug Enf’t Admin, 122 F.4th 371, 375 n.5 (9th Cir. 2024). 
 
6 
asserted removal-protection-infirmity and an actual harm.  Nat’l Collegiate, 96 F.4th at 
615; see Starbucks Corp., 125 F.4th at 88–89.  McCarthy argues that the revocation of his 
COR is a greater injury than the injury at issue in Starbucks, but he fails to address the 
requisite causal link.  McCarthy does not show, or even argue, that his injury would have 
been lessened or eliminated if the ALJ did not have unconstitutional removal protections.  
Accordingly, his removal-protection challenge fails.  See Starbucks, 125 F.4th at 88; 
Nat’l Collegiate, 96 F.4th at 615. 
B. Arbitrary and Capricious Challenge 
 
McCarthy next argues that the Administrator’s decision to revoke his COR was 
arbitrary and capricious or an abuse of discretion.  See 5 U.S.C. § 706(2)(A).  He 
concedes that the “Administrator’s choice of sanction ‘is entitled to substantial 
deference’” and that “[o]rdinarily, the mere unevenness in the application of a sanction 
will not render its application in a particular case ‘unwarranted in law.’”  Opening Br. 25 
(quoting Chein v. Drug Enf’t Admin., 533 F.3d 828, 835 (D.C. Cir. 2008)); see also Butz 
v. Glover Livestock Comm’n Co., 411 U.S. 182, 187 (1973).  Nonetheless, relying on 
D.C. Circuit case law, he contends that an agency abuses its discretion if the penalty it 
imposes is an unrecognized or unexplained “flagrant departure” from past practice and 
that the DEA’s actions here were such a departure.  Chein, 533 F.3d at 835 (quoting 
Morall v. Drug Enf’t Admin., 412 F.3d 165, 183 (D.C. Cir. 2005)).  This standard seems 
to just be an application of the principle that agencies must “generally ‘display 
awareness’ of a change in [agency] position.”  N.J. Bd. of Pub. Utils. v. FERC, 744 F.3d 
 
7 
74, 104 (3d Cir. 2014) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 
(2009)). 
To make this point, McCarthy primarily relies on “summaries” of eight DEA 
adjudications.  McCarthy’s counsel now acknowledges that seven of these summaries 
were inaccurate, that the eighth decision does not exist, and that the summaries and non-
existent decision were all generated by Artificial Intelligence (AI).  McCarthy’s counsel 
further acknowledges that he never took care to confirm the accuracy of the summaries or 
even that the decisions existed.5  Accordingly, we will not consider this portion of his 
brief.6  Cf. Grant v. City of Long Beach, 96 F.4th 1255 (9th Cir. 2024) (striking brief and 
dismissing appeal for a similar issue). 
McCarthy cites two additional cases but neither supports his position.  In one case, 
the DEA imposed a sanction short of revocation because the respondent accepted 
responsibility for her actions.  See Jayam Krishna-Iyer, M.D., 74 Fed. Reg. 459, 463 
(DEA Jan. 6, 2009).  Krishna-Iyer thus sits neatly in DEA’s framework where a sanction 
 
5 We ordered McCarthy’s counsel to provide the cases to the Court and explain if 
and how he verified the accuracy of his summaries.  In his response, McCarthy’s counsel 
acknowledged that he knew that he had submitted erroneous summaries and a non-
existent case to this Court long before the filing of his response.  We are separately 
ordering McCarthy’s counsel to show cause why he should not be sanctioned for his 
conduct, particularly for his lack of candor to the Court. 
6 McCarthy’s counsel also concedes that the Government has successfully rebutted 
the eight summaries.  This provides us with another reason not to consider this portion of 
the brief.  See United States v. Batista, 483 F.3d 193, 199 n.4 (3d Cir. 2007) (noting that 
an argument was waived because it was conceded). 
 
8 
short of revocation can be imposed if a respondent accepts responsibility.7  But here the 
Administrator found that McCarthy only partially accepted responsibility and that finding 
was supported by substantial evidence due to, among other things, his attempts to justify 
his conduct and shift the blame to other parties.  Therefore, Krishna-Iyer does not reflect 
that revocation of McCarthy’s COR was a flagrant departure from DEA practice. 
In the other case, the DEA revoked the registrant’s COR, in part because she failed 
to fully take responsibility for her actions, and the D.C. Circuit denied the petition for 
review.  See St. Croix v. Drug Enf’t Admin., No. 21-1116, 2022 WL 2092177, at **1–2 
(D.C. Cir. June 10, 2022) (per curiam).  This is consistent with the DEA’s treatment of 
McCarthy’s case, wherein he was found to only partially accept responsibility for his 
conduct.  McCarthy argues nonetheless that his behavior was less egregious than the 
conduct in St. Croix.  Assuming that is true, it only shows the range of conduct that DEA 
determines to be inconsistent with the public interest and justifying a revocation, not that 
revocation here is a flagrant departure from DEA practice. 
McCarthy briefly makes a few additional arguments that all lack merit.  McCarthy 
argues that the Administrator failed to acknowledge the ways in which McCarthy did 
take responsibility.  The Administrator did consider McCarthy’s limited acceptance of 
responsibility, she just found it lacking.   
 
7 McCarthy concedes that the DEA may look to the registrant’s acceptance of 
responsibility in determining if continued registration is consistent with the public 
interest.  Some DEA cases regarding the acceptance of responsibility focus on the fact 
that the violation was intentional or knowing.   
 
9 
McCarthy also argues that his punishment should not have been as severe because 
the violations were “based on [his] misunderstanding” that he was still being supervised 
by Dr. F.  Opening Br. 29.  The Administrator considered this argument and determined 
that McCarthy’s asserted belief was not “reasonable,” App. 168.  This conclusion was 
supported by substantial evidence as the Administrator explained that any 
misunderstanding could have been avoided with “basic due diligence” and “proper and 
ongoing communication” between McCarthy and his former supervising physician, App. 
173.  In any case, under DEA precedent, unintentional misconduct can justify revoking a 
COR.  See Fares Jeries Rabadi, M.D., 87 Fed. Reg. 30,564, 30,603 n.35 (DEA May 19, 
2022), petition for rev. denied, 122 F.4th 371 (9th Cir. 2024).  
McCarthy next argues that his COR should not have been revoked because the 
DEA failed to show that his misconduct resulted in the diversion of any prescribed drugs 
or in harm to any patients.  The Administrator considered this argument, and its rejection 
of this argument was not an abuse of discretion.  Agency precedent is clear that the DEA 
can find that continued registration is inconsistent with the public interest, even when a 
harm has not yet been realized.  See Melanie Baker N.P., 86 Fed. Reg. 23,998, 24,009 
(DEA May 5, 2021). 
McCarthy next claims that revoking his “COR is not in the public interest insofar 
as he provides critical, specialized psychiatric care which is not easily replaceable.”  
Opening Br. 31.  Again, the Administrator considered and rejected this argument 
consistent with DEA policy and practice.  See Brenton D. Wynn, M.D., 87 Fed. Reg. 
24,228, 24,258 n.KK (DEA Apr. 22, 2022).  In short, the Administrator considered and 
 
10 
rejected all of McCarthy’s mitigation arguments, and McCarthy fails to show how 
rejecting these arguments was arbitrary and capricious.  See Humphreys, 96 F.3d at 662–
64 (holding Deputy Administrator’s decision arbitrary and capricious where he “fail[ed] 
to discuss the one and only defense raised by Humphreys” and explaining that “this is not 
simply a case where we disagree with the Deputy Administrator’s application of relevant 
mitigating aspects of the statutory factors to settled facts”). 
Finally, McCarthy argues that the Administrator failed to consider sanctions less 
drastic than revocation, such as a suspension of his COR or reprimand.  That is simply 
not true.  The Administrator considered lesser punishments but ultimately concluded that 
revocation was appropriate because McCarthy failed to show he could be trusted with a 
COR.8   
III. CONCLUSION 
 
For the forgoing reasons, we will deny the petition for review. 
 
8 McCarthy raises three additional arguments that are all forfeited.  One is forfeited 
because it was raised in a footnote.  John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 
F.3d 1070, 1076 (3d Cir. 1997).  The others are forfeited because they were raised for the 
first time in a reply brief.  Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 204 n.29 
(3d Cir. 1990). 
 


Stephen McCarthy v. DEA

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-23-2025 
USA v. Antuane Gregory 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Antuane Gregory" (2025). 2025 Decisions. 588. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/588 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
No. 24-2451  
_____________ 
 
UNITED STATES 
 
v. 
 
ANTUANE GREGORY, 
Appellant  
      
Appeal from the United States District Court 
for the District of New Jersey 
(D.C. No. 3:23-cr-00586-001) 
District Judge: Honorable Zahid N. Quraishi 
      
 
Submitted under Third Circuit L.A.R. 34.1(a) 
on June 10, 2025 
Before: KRAUSE, PORTER, and AMBRO, Circuit Judges 
 
(Opinion Filed: July 23, 2025) 
  
 
2 
___________ 
OPINION* 
___________ 
AMBRO, Circuit Judge  
At sentencing for an escape charge, the District Court gave Antuane Gregory the 
statutory maximum of 60 months. It did so because Gregory committed the same crime 
during his escape as put him in prison in the first place: possessing a firearm after a felony 
conviction. The Court reasoned that the more than four-year sentence from which he 
escaped had not been enough to deter him from future criminal behavior, so it increased 
the sentence. On appeal, Gregory raises procedural-error claims and contests the 
substantive reasonableness of his sentence. None of his arguments is persuasive, so we 
affirm.  
I 
In 2018, the District Court sentenced Gregory to 54 months’ imprisonment and 3 
years’ supervised release for a conviction as felon in possession of a firearm. In March 
2022, while on supervised release, Gregory left a halfway house for an approved home 
visit and failed to return. A federal warrant was issued for his arrest. In April 2023, after an 
investigation for a homicide charge, Gregory was apprehended and arrested. He pled guilty 
to the federal-escape charge and admitted to discharging a firearm after his escape.  
 
*  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
3 
At sentencing, Gregory requested a range of 12 to 18 months. The Government 
proposed a sentencing range of 27 to 33 months, which the Probation Office also 
recommended. The District Court adopted the Government’s proposed Guidelines range, 
but it departed from that range to sentence Gregory to the statutory maximum of 60 months. 
It explained: 
[T]he sentencing guidelines don’t properly consider the egregious facts of 
this case where you have a defendant who absconds, doesn’t complete his 
sentence, and then is committing the very same crime that we sentenced him 
for, [and] doesn’t seem to have much remorse about it, because he doesn’t 
even complete his presentence interview with probation. 
JA 57. And it later commented:  
I appreciate that the guidelines do take into consideration Mr. Gregory 
committing another crime while he’s absconded. What it doesn’t appreciate, 
which I think is critical in this case, is that he committed the very same crime 
of the underlying sentence, which tells me Judge Sheridan sentencing him to 
54 months doesn’t mean anything to him. It does not deter him from getting 
a firearm. So how can I then say, I know what will stop him? I’ll sentence 
him to 33 months or 21 months. I’ll give Mr. Gregory a lower sentence. To 
me that borders the absurd. That logic doesn’t connect. 
App. 60. 
The Court did not, however, discuss sentencing disparities. Gregory timely 
appealed.  
II 
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.  
We review preserved claims challenging the procedural and substantive 
reasonableness of a sentence for abuse of discretion. United States v. Tomko, 562 F.3d 558, 
 
4 
567 (3d Cir. 2009) (en banc). We review unpreserved claims of procedural error for plain 
error. United States v. Flores-Mejia, 759 F.3d 253, 258 (3d Cir. 2014) (en banc).  
III 
Gregory makes three arguments on appeal. First, he says the District Court 
procedurally erred by failing to make the Guidelines range the starting point of its 
sentencing analysis.1 Second, he contends the Court overlooked sentencing disparities 
between himself and similarly situated defendants as required by § 3553(a)(6). Finally, he 
asserts that his sentence was substantively unreasonable. We disagree with each.  
A 
The record belies Gregory’s argument that the District Court failed to make the 
Guidelines the starting point for its sentence. On Gregory’s reading, it made the 54-month 
sentence from which he escaped the starting point of its analysis rather than beginning with 
the Guidelines. Gregory relies on the Court’s repeated emphasis that the sentence “d[id] 
not deter him from getting a firearm” or stop him from committing “the very same crime.” 
JA 60. But the discretionary weight the Court gave these facts does not show it ignored the 
Guidelines or failed to use them as a starting point. In fact, it repeatedly acknowledged the 
Guidelines range of 27 to 33 months as “the advisory range” it adopted, e.g., App. 51, 
recognizing it was giving a “greater sentence” than prescribed. JA 60. So Gregory’s first 
argument fails.  
 
1 After advancing the argument in his opening brief, Gregory now concedes the District 
Court did not miscalculate his criminal history category.  
 
5 
B 
Gregory next argues that the District Court ignored potential sentencing disparities 
between himself and similarly situated defendants. We review this unpreserved argument 
for plain error. Flores-Mejia, 759 F.3d at 258. To demonstrate that, Gregory must show: 
“(1) the district court erred; (2) the error was clear or obvious; and (3) the ‘error affected 
[his] substantial rights,’ which typically means that there is a reasonable probability that 
the error affected the outcome.” United States v. Foster, 891 F.3d 93, 113 n.15 (3d Cir. 
2018) (quoting United States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013)). “If all three 
conditions are met, we may exercise our discretion to correct the forfeited error if it 
seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United 
States v. Aguirre-Miron, 988 F.3d 683, 687 (3d Cir. 2021) (internal quotation marks and 
brackets omitted).  
As for error, before granting “a large variance, [the District Court] 
should . . . explain[] why that variance would not contribute to unwarranted sentencing 
disparities pursuant to § 3553(a)(6).” United States v. Merced, 603 F.3d 203, 225 (3d Cir. 
2010). Failure to do so can “constitute reversible procedural error, even where . . . the court 
engages in thorough and thoughtful analysis of several other sentencing factors.” Id. at 224. 
“[T]his is especially true if the sentence falls outside of the Guidelines.” Id. Gregory notes 
that between 2019 and 2023, 95% of the defendants with his total offense level and criminal 
history category who escaped from prison received sentences within or below the 
Guideline range. And Gregory’s sentence is more than double the average sentence for 
 
6 
someone in his criminal history category. The District Court’s failure to address these 
disparities was clear error.   
But Gregory cannot show how this error affected the outcome. The District Court 
stated it was imposing the statutory maximum because of concerns about deterrence, 
reasoning the 54-month sentence from which Gregory escaped had not deterred him from 
future crime. As the Court explained, Gregory did not “have enough respect for the Court 
or the law to complete [his] sentence without committing” another offense, JA 54, and 
observed that his presentence interview had been terminated early because he was irate. It 
explained “the sentencing guidelines don’t properly consider the egregious facts of this 
case.” Given that explanation, Gregory has not shown a reasonable possibility that 
consideration of sentencing disparities would have changed its outcome.  
C 
Even if “the district court’s procedures are sound,” we must “examine the 
substantive reasonableness of the sentence.” Merced, 603 F.3d at 214. A sentence is 
substantively unreasonable if “no reasonable sentencing court would have imposed the 
same sentence on that particular defendant for the reasons the district court provided.” 
Tomko, 562 F.3d at 568. In effect, Gregory must show the District Court abused its 
discretion. See United States v. King, 454 F.3d 187, 194 (3d Cir. 2006). He does not.  
“[D]istrict judges are free to vary—one way or the other—from the advisory 
Guidelines, provided that those variations are reasonable under the circumstances.” United 
States v. Fisher, 502 F.3d 293, 308 (3d Cir. 2007). “[W]hen the Guidelines range is too low 
to satisfy 18 U.S.C. § 3553(a), the district judge must explain why this is so and vary 
 
7 
upward.” Id. “[A] major departure should be supported by a more significant justification 
than a minor one.” Tomko, 562 F.3d at 571 (internal quotation marks omitted).  
Gregory tells us the District Court’s explanation does not justify the significant 
upward variance it imposed. He points out the Guidelines already accounted for his firearm 
possession after his escape, and he argues most offenders commit crimes consistent with 
their criminal history after escape—just like he did. So the Court’s focus on deterrence 
does not justify its variance from the Guidelines. See United States v. Olhovsky, 562 F.3d 
530, 547 (3d Cir. 2009) (explaining that focusing on a few sentencing factors “to the 
exclusion of other[s]” can make a sentence substantively unreasonable).  
Again, this may be true. But Gregory does not show that no reasonable court would 
have imposed the same sentence for the reasons the District Court here provided. In similar 
circumstances, other courts have imposed the statutory maximum on escape charges or 
varied upward by even more than the District Court in this case. See, e.g., United States v. 
Lerma, 123 F.4th 768, 771, 773 (5th Cir. 2024) (rejecting substantive-reasonableness 
challenge to 60-month sentence when Guidelines range was 4 to 10 months); United States 
v. Perez, No. 24-50027, 2024 WL 4824806, at *1 (5th Cir. Nov. 19, 2024) (same); United 
States v. Morton, 569 F. App’x 107 (3d Cir. 2014) (sentencing Morton to 42 months after 
the Government requested the statutory maximum and the Probation Office recommended 
15 to 21 months). Gregory has not shown that, with his history of recidivism and violence, 
the District Court abused its discretion in sentencing him to the statutory maximum.  
* * * 
For these reasons, we affirm. 


USA v. Antuane Gregory

USA v. Juan Montas

A new dataset capturing sentencing outcomes for “boat defendants,” a notable group of federal drug offenders who share many characteristics, provides a fresh perspective on many different aspects of federal case-processing and drug-sentencing outcomes. This overview provides a brief look at ground- breaking research based on this dataset, which serves as an anchor article for this issue of the Federal Sentencing Reporter, followed by a history of the creation of this dataset and then commentaries highlighting insights and lessons drawn from this original research

Berman, Douglas A.

Chanenson, Steven L.

Faculty Publications Faculty Scholarship 
5-1-2025 
A Remarkable Look at Sentencing for a Remarkable Set of Drug 
Defendants 
Douglas A. Berman 
Steven L. Chanenson 
Villanova University Charles Widger School of Law 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/facpubs 
 Part of the Law Commons 
Recommended Citation 
Douglas A. Berman & Steven L. Chanenson, A Remarkable Look at Sentencing for a Remarkable Set of 
Drug Defendants, 37(2) Federal Sentencing reporter 99 (2025). 
Available at: https://digitalcommons.law.villanova.edu/facpubs/219 
This Journal Article is brought to you for free and open access by the Faculty Scholarship at Villanova University 
Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Faculty Publications by an 
authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more 
information, please contact reference@law.villanova.edu. 
99
Federal Sentencing Reporter • 37:2 • May 2025
DOI: 10.1215/10539867- 11692708 • © 2025 The Ohio State University
A Remarkable Look at Sentencing for a Remarkable 
Set of Drug Defendants
DOUGLAS A. BERMAN
FSR co- managing editor, Professor of Law at The Ohio State University Moritz College of Law
STEVEN L. CHANENSON
FSR co- managing editor, Professor of Law at Villanova University Charles Widger School of Law
ABSTRACT A new dataset capturing sentencing outcomes for “boat defendants,” a notable group of federal 
drug offenders who share many characteristics, provides a fresh perspective on many different aspects  
of federal case- processing and drug- sentencing outcomes. This overview provides a brief look at ground-
breaking research based on this dataset, which serves as an anchor article for this issue of the Federal 
Sentencing Reporter, followed by a history of the creation of this dataset and then commentaries highlighting 
insights and lessons drawn from this original research.
KEYWORDS federal sentencing, drug offense sentencing, boat defendants, war on drugs, sentencing data 
and research, sentencing disparity and uniformity
The War on Drugs has been fought for decades on a wide range of fronts, and a vast array of “war 
correspondents” have reported on a host of drug- sentencing stories. And yet, as documented 
in this issue of the Federal Sentencing Reporter, many battles in this persistent war remain little 
known and rarely discussed. By shining a light on a largely hidden aspect of the drug war, we can 
gain a deeper understanding of how the criminal justice system struggles to prosecute the drug 
war effectively and justly.
Through new groundbreaking data collection and original research, Professors Kendra 
McSweeney, Mat Coleman, and Douglas Berman (and others assisting with this project) have 
made a remarkable contribution to what we know about a distinct group of federal drug offend-
ers, known as boat defendants, and how the federal justice system responds to their criminal activ-
ities. They have done our field a great service not only by documenting new examples of certain 
well- known difficulties in federal drug sentencing but also by spotlighting innovative questions 
about modern sentencing practices and patterns. Their work uncovers and presents more than 
an important drug war story; they provide even more than a gripping and, at times, heartbreak-
ing sentencing story. Fundamentally, they are illuminating a profound justice policy story.
Who are the boat defendants? They are a distinctive subset of drug couriers. McSweeney 
et al. describe them as “the hundreds of men who are intercepted every year by the U.S. Coast 
Guard . . . on cocaine- laden boats and are brought to the United States for prosecution under the 
Maritime Drug Law Enforcement Act. . . . Typically caught with hundreds of kilos of high- purity 
cocaine, they face serious federal penalties, including a mandatory minimum statutory sentence 
of ten years in prison.”1
In addition to focusing on a little- known group of defendants, McSweeney et al. have built 
their “own dataset to ‘follow the defendant’ from the initial at- sea encounter with law enforce-
ment through eventual deportation from the United States.”2 This original and granular ap-
proach not only opens a distinctive window into boat defendant cases but also provides a means 
to explore sentencing outcomes differently and to examine what we may miss when reviewing 
conventional data only.
The novel and groundbreaking nature of the boat defendant data collection and analyses 
prompted the editors of Federal Sentencing Reporter to have this work serve as a focal point for a 
full issue of FSR. To that end, in the summer of 2024 FSR editors worked with the Drug Enforce-
EDITORS’  OBSERVATIONS
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FEDERAL SENTENCING REPORTER • 37:2 • MAY 2025100
ment and Policy Center at The Ohio State University 
Moritz College of Law to convene a workshop of prac-
titioners and academics to discuss the boat defendant 
research and foster written commentary for FSR. We 
are now extremely excited to have this important study 
and reactions thereto published in FSR. Readers must 
take in the full issue to appreciate the complexity of the 
research and the many nuances of related commentary. 
This introductory essay aspires to flag a few aspects of 
this project that we believe merit particularized and 
enduring attention.
I. Lessons from Constructing  
a Novel Sentencing Dataset
Because the U.S. Sentencing Commission does an ad-
mirable job collecting and reporting on all sorts of fed-
eral sentencing data, it is dangerously easy to assume 
that all important federal sentencing statistics and 
stories can be mined from the Commission’s public 
datasets. However, as Professor Jonathan J. Wroblewski 
observes in his contribution to this issue, even though 
the Commission’s data analysts do “a fantastic job of 
collecting and analyzing federal criminal justice data, 
their work has always exhibited blind spots.”3 Because 
the Commission’s data efforts inevitably reflect “certain 
methodological and other choices that focus reports on 
some areas of sentencing and not on others,”4 new data 
collections and robust analyses by outside researchers 
will always help enrich and deepen perspectives and 
understandings of federal sentencing practices and 
patterns.
McSweeny et al. moved beyond the Commission’s 
monitoring dataset. They and their colleagues sur-
mounted many conceptual and practical challenges to 
demonstrate that it is possible to extend the frontiers 
of federal sentencing data. This is helpfully outlined in 
a companion article that details their approach to and 
insights from their efforts to build and populate an 
original federal sentencing dataset.5 In so doing, they 
describe how much labor (and how much uncertainty) 
is unavoidably involved in seeking to build a novel and 
large federal case- processing and sentencing database. 
The articles in this issue commenting on their extraor-
dinary work establish how fruitful and important this 
kind of labor- intensive research can be. And yet the sto-
ries of assembling these data, as well as the assortment 
of unanswered questions that persist with any data 
collection and preliminary analyses, serve as a critical 
reminder of how hard it can be to conduct original and 
robust empirical work about federal case processing 
and sentencing. Professor Ryan D. King adds to the 
richness of this discussion in his contribution to this 
issue by analyzing the strengths of their approach and 
suggesting how they can learn from more conventional 
sentencing scholarship.6
One particularly impressive aspect of McSweeney 
et al.’s work is their collection of judge- specific data. 
As Wroblewski notes: “The Commission does collect 
names and data on the defendant and the judge who 
imposed the sentence in each case. It simply does 
not release that information to the public. Just as 
important, while the Commission regularly examines 
demographic and other information about federal de-
fendants, it very much limits its internal judge- specific 
research.”7
The absence of federal judge– specific sentencing 
information has been decried for years.8 Without it, pol-
icymakers lack crucial insights. McSweeney et al. have 
demonstrated that it is possible to obtain this informa-
tion independently, albeit here not on a national scale. 
This achievement bolsters Wroblewski’s assertion that 
“to fully understand federal sentencing practices and 
their effectiveness in meeting the congressional goals 
for sentencing spelled out in the Sentencing Reform 
Act, analysis of sentencing data at the judge level is 
necessary.”9
Particularly at a time when the U.S. Sentencing 
Commission is asking big and broad questions about 
which federal sentencing practices help advance the 
capacious goals of the Sentencing Reform Act, the 
Commission and other federal criminal justice actors 
might be inspired by this work to explore playing a 
more active and significant role in encouraging and 
cultivating outside research regarding any number 
of sentencing topics. Whether through funding or by 
making data and additional resources more available 
and accessible, the commission and other federal 
criminal justice institutions could make it easier for 
a diverse array of researchers and analysts to bring a 
broad spectrum of perspectives and insights to how our 
justice and sentencing systems function. As a general 
matter, competition helps the consumer and society at 
large. There is no reason that the Commission must or 
should have a monopoly on reliable sentencing data.10 
The boat defendants project highlights that, while this 
kind of data- driven work will never be easy, it can be 
extraordinarily worthwhile.
II. Lessons of Modern Federal Drug  
Sentencing Dynamics
For decades commentators and reform advocates have 
assailed as utter foolishness federal drug- sentencing 
statutes and guidelines structured around the quantity 
of drugs purportedly involved in the offense. As Profes-
sor Mona Lynch effectively details in her contribution to 
this issue, “drug weight fails as a metric of culpability,”11 
and the cumulative sentencing data and the human 
stories of the boat defendants buttress that assertion. 
The majority of boat defendants were involved in 
transporting quantities of cocaine that were literally “off 
the charts” for the guidelines— quantities that would 
trigger, dozens of times over, the statutory ten- year 
minimum imprisonment term (supposedly reserved 
for leaders and kingpins). And yet, the boat defendants 
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101BERMAN AND CHANENSON • A REMARKABLE SET OF DRUG DEFENDANTS
may arguably be even less culpable than persons caught 
selling a dime bag on a street corner.
Because boat defendants consistently received 
sentences many years below (and often decades below) 
guideline recommendations,12 one might conclude that 
the sentencing outcomes detailed by McSweeney et al. 
demonstrate that federal sentencing judges give rela-
tively little or no attention to the drug- quantity metrics 
that drive severe guideline sentencing recommenda-
tions. However, the sentencing data also show that the 
average sentence given to boat defendants is consid-
erably longer than the average sentence given to most 
federal drug defendants (and most federal defendants 
generally), even though the boat defendants, who are 
typically first offenders with many personal mitigating 
factors, are arguably among the least culpable class 
of federal drug defendants. In this respect, the boat 
defendant cases show how federal- sentencing actors 
seem to know that drug quantity serves as a poor metric 
for federal sentencing decision making. Nevertheless, 
these actors still do not seem to know what other met-
rics should be used to calibrate sentencing outcomes.
This is yet another salutary aspect of the research 
conducted on boat defendants. It provides new— or 
renewed— cause to reexamine why the federal sen-
tencing system operates the way it does. Inertia should 
never be a valid explanation, and there is ample reason 
to believe the existing scheme needs rethinking. In 
his contribution to this issue, Professor Mark Osler 
introduces a healthy dose of fresh thinking by astutely 
suggesting that “how much money one makes” in drug 
dealing would be a sounder metric for drug sentencing.13 
Inspired by the boat defendants, he offers the following:
If we are committed to pursuing a disruption of the 
international drug trade, a better plan would be to 
alter the sentencing system so that relative culpabil-
ity is measured by the amount of profit a given actor 
took from the activity. Because those who are most 
culpable (and, generally, most skilled) make the 
most money, this would at least take us to the right 
people for the harshest punishment— and would 
open a door to other pathways to interdiction that 
involve no incarceration at all.14
Regardless of whether one embraces Osler’s vision, 
this demonstrates how new data can encourage new 
thinking.
Unsurprisingly, as McSweeney et al. explain, the 
average sentences given to boat defendants mask 
considerable sentencing variations across circuits, 
districts, courthouses, and individual judges.15 The 
U.S. Sentencing Commission has documented such 
variations throughout its research history, giving extra 
attention to the concerns of unwarranted sentencing 
disparities since the landmark Booker ruling made the 
guidelines advisory two decades ago. The sentencing 
data on the boat defendants provide still more evidence 
of entrenched disparities stemming from case process-
ing and dispositional differences among and across 
different prosecutors and judges.
It is notable that, in recent years, observers and ad-
vocates of sentencing reform seem considerably more 
concerned about excessive sentencing severity than 
about undue sentencing disparity. The boat defendant 
data bring this into sharp relief. That many of these 
boat defendants received a decade or longer for relative-
ly minor involvement in a massive drug trade is likely 
to be viewed as more troublesome and unjust than the 
fact that some of them (perhaps not presenting mate-
rially different characteristics) managed to escape with 
a sentencing term of only five years of imprisonment. 
Although it seems unlikely that the vivid examples of 
disparity within the boat defendants cases will spark a 
focus on disparity reduction, more evidence of these 
concerns may keep the disparity issue on the public 
policy agenda.
III. Lessons of an Unwinnable War
“War, huh, yeah. What is it good for? Absolutely 
nothing, uh- huh, uh- huh!”16 This iconic lyric, sung 
fifty years ago by Edwin Starr to protest the Vietnam 
War, seems ever so timely with the drug war in mind 
when reviewing the stories and sentencings of the 
boat defendants. It is important to remember that 
most boat defendants, as Assistant Federal Defender 
Nicole Hardin, explains, “found themselves qualifying 
for safety valve under the sentencing guidelines and 
receiving a 2- level reduction in their offense level while 
still facing the minimum mandatory of ten years under 
the statute.”17 As hard as it may be to assess what might 
be just sentences for these defendants, it is even harder 
to imagine that the prosecution of these individuals has 
any significant impact on the drug trade or even that 
the length of sentences given to any of these defendants 
has any measurable impact on continuing efforts to 
transport drugs on the high seas.
Though it will always be difficult to evaluate the effi-
cacy and justness of any individual sentence or group of 
sentences, it is particularly challenging to surmise what 
broad national objective is being achieved and what 
form of durable justice is being served in the sentenc-
ings of the boat defendants. Will questions like these, 
sparked by McSweeney et al.’s creative dataset, prompt 
a broader reexamination of how drug couriers, includ-
ing but not limited to boat defendants, can and should 
be punished? One can only hope.
Many critics of the drug war often ruefully observe 
that drugs are the only winners in this war. Thanks 
to an ingenious new dataset, we now know more 
about federal drug sentencing. Sadly, that welcome 
addition to our collective knowledge still cannot help 
identify any clear winners in the tales of these boat 
defendants.
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FEDERAL SENTENCING REPORTER • 37:2 • MAY 2025102
Notes
1 Kendra McSweeney, Mat Coleman, & Douglas A. Berman, The 
Challenge of Just Federal Sentencing for “Boat Defendants,” 
37 FED. SENT. REP. 103, 103 (2025).
2 Id. at 104.
3 Jonathan J. Wroblewski, Sentencing “Boat Defendants”: Break-
ing the U.S. Sentencing Commission’s Monopoly on Data Gath-
ering on Federal Sentencing Practices, and Why It Matters, 37 
FED. SENT. REP. 147, 147 (2025).
4 Id. at 149.
5 Ohio State University (OSU) Interdiction Lab and Michael 
Lissner, Sentencing Research Without USSC Data: Strategies 
and Lessons Learned, 37 FED. SENT. REP. 123 (2025).
6 Ryan D. King, Rocking the Boat: Lessons from a Study of the 
Federal Sentencing of Maritime Drug Traffickers, 37 FED. SENT. 
REP. 132 (2025).
7 Wroblewski, supra note 3 at 149.
8 See, e.g., Steven L. Chanenson, Commissions at the Core,  
30 FED. SENT. REP. 84, 87 (2017) (arguing that “the continued  
refusal of the federal government . . . to release judge- specific 
information systematically remains one of its most frustrating, 
incomprehensible, and unjustifiable criminal justice decisions”).
9 Wroblewski, supra note 3 at 150.
10 Cf. S. J. Quinney College of Law and the Supreme Court 
Fellows Alumni Association, Symposium— Judicial Discretion: 
A Look Forward and a Look Back Five Years after Booker, 22 
FED. SENT. REP. 297, 304 (2010) (discussing, in part, a “nearly 
free market for sentencing guidelines”).
11 Mona Lynch, The Conspiracy of Drug Weight and the Case of 
MDLEA Defendants, 37 FED. SENT. REP. 138, 138 (2025).
12 McSweeney et al., supra note 1 at 117.
13 Mark Osler, The Weight, 37 FED. SENT. REP. 143, 144 (2025).
14 Id. at 143.
15 McSweeney et al., supra note 1 at 111–14.
16 Norman Whitfield and Barrett Strong, lyrics to the 1970 song 
“War,” Edwin Starr Lyrics, https://www . azlyrics . com / lyrics 
/ edwinstarr / war . html.
17 Nicole Hardin, Location, Location, Location: How the Federal 
Sentencing System Can Cause Disparity in MDLEA Cases, 37 
FED. SENT. REP. 129, 130 (2025).
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