Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
5-21-2004
Jansen v. USA Precedential or Non-Precedential: Precedential
Docket No. 02-4215
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Recommended Citation "Jansen v. USA" (2004). 2004 Decisions. Paper 653. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/653
This decision 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 School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL DANIEL I. SIEGEL Assistant Federal Public Defender UNITED STATES COURT OF APPEALS D. TONI BYRD (Argued) FOR THE THIRD CIRCUIT Assistant Federal Public Defender 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 No. 02-4215 Attorneys for Appellant, Robert John Jansen, Jr.
ROBERT JOHN JANSEN, JR., THOMAS A. MARINO Appellant United States Attorney
v. THEODORE B. SMITH, III (Argued) Assistant United States Attorney UNITED STATES OF AMERICA Federal Building 228 Walnut Street Harrisburg, PA 17108 On Appeal from the Attorneys for Appellee, United States District Court United States of America for the Middle District of Pennsylvania Criminal Action No. 4:98-CR-240 (Honorable James L. M cClure, Jr.) OPINION
Argued January 22, 2004 Debevoise, United States Senior District Before: ALITO and CHERTOFF, Judge Circuit Judges, and DEBEVOISE * , Senior District Court Judge Defendant, Robert John Jansen, Jr., filed a petition pursuant to 28 U.S.C. § (Filed: May 21, 2004) 2255, asserting that his trial counsel was ineffective for failing to argue at his JAMES V. WADE sentencing for drug possession with intent Federal Public Defender to distribute that the amount of drugs in his For the Middle District of Pennsylvania possession intended for personal use should not have been included in the base offense level calculation. The District * Court held that, assuming trial counsel was Honorable Dickinson R. Debevoise, ineffective in this regard, defendant was United States Senior District Judge for the not prejudiced for the reason that there was District of New Jersey, sitting by designation.
1 a strong connection between the drugs nickname of “Louie.” The passenger was defendant intended to distribute and any another Hispanic male. drugs he held for personal use, and The troopers retrieved a plastic bag therefore all amounts of drugs he from defendant’s groin area. Subsequent possessed should enter into the base laboratory analysis disclosed that within offense level computation. We hold, in the bag were two smaller bags, one agreement with the opinions of the other containing 34.2 grams of cocaine and the Courts of Appeals that have ruled upon other containing 16.3 grams of crack this issue, that when a conviction is for cocaine. Defendant also had on his person simple possession with intent to distribute, $770 in currency and a pager. Shortly the amount of drugs a defendant possessed after the stop a drug detection canine was for personal use must be determined and brought to the scene, and the driver of the may not be included in the base offense Spectrum, DeHart, consented to a search. level com putation . Counsel was There was discovered on the rear floor a ineffective for failing to raise this issue at black videocassette recorder (“VCR”) the time of sentencing, and this failure may which contained a number of plastic bags. have resulted in prejudice to defendant. Analysis later disclosed that these bags The judgment of the District Court will be contained a total of 448 grams of cocaine. reversed and the case will be remanded for a determination of the amount of drugs, if Neither a consent search nor a dog any, which defendant possessed for sniff of the Camry disclosed any drugs, personal use and, if appropriate, and consequently the troopers permitted recomputation of defendant’s base offense the two Hispanic males to proceed on their level in accordance with this opinion. way. I. Background Shortly after defendant had been searched and the drugs found on his person After midnight on June 30, 1998 he volunteered that he was going to have Pennsylvania State troopers stopped a light to find out “who told the police on him,” blue Chevrolet Spectrum with two male as there were only two people who knew occupants and a silver Toyota Camry “he made this run.” (II App. 157). He which appeared to be accompanying the added that only one of the two knew what Spectrum and which also had two kind of vehicle he drove, so he had it occupants. The troopers had previously “pretty much narrowed down.” (II App. received information that the Spectrum 164). He also stated that he could offer would be transporting illegal drugs from information that would yield the troopers the New York City area back to three to four times the quantity of drugs Pennsylvania. Defendant w as the the stop would yield. (Id.) passenger in the Spectrum. Its driver was Andrew DeHart. The driver of the Camry The troopers advised defendant of was a Hispanic male who went by the his constitutional rights approximately
2 one-half hour after the stop. There was an follow defendant from New York to interval of time during which the two cars Willow’s residence and receive payment were searched and then defendant was from Willow. Before leaving for again advised of his constitutional rights. Pennsylvania Louie would deliver to (II App. 177). When asked what was in it defendant a quantity of cocaine as payment for him the troopers informed defendant for his transportation services. (II App. only that his cooperation would be made 179-80). known to his sentencing judge. The On October 13, 1998 a grand jury defendant then stated that the cocaine returned a one count indictment charging found in his pants was “all for him,. . . that defendant with distribution and possession he was not going to deliver that to anybody with intent to distribute cocaine and in the area, [and] that it was strictly his.” cocaine base and aiding and abetting in (II App. 178) violation of 21 U.S.C. § 841(a)(1) and 18 Defendant also told the trooper who U.S.C. § 2. He proceeded to trial. was questioning him that he had just gone Testifying in his own defense, defendant to New York City to meet an individual recanted the incriminating statements he named “Louie,” that Louie had given him had made on the night of his arrest (II an ounce of cocaine, that he had also App. 219-36; III App. 277-87). At trial he purchased the crack cocaine from Louie, testified that the driver, DeHart, had called and that these quantities of cocaine were him and asked him to ride along with the drugs seized from his pants (II App. DeHart on a trip to New York, because 178-79, 233-34). Further, according to DeHart did not like traveling alone (II defendant, Louie, who was the person App. 221). He went along because he driving the Camry, had also delivered to needed cocaine to satisfy his own habit him the VCR containing cocaine which he (Id.) Defendant asserted that he knew was to deliver to a man named Richy DeHart “was up to something” but he did Willow in Middleburg, Pennsylvania, early not know what it was. (Id.). In a that morning (II App. 179). somewhat contradictory vein he testified that he knew the VCR contained cocaine, The usual procedure, according to although he did not know how much, and defendant, was for Willow to contact that it would be delivered to Willow after Louie in New York by telephone and place being transferred to the vehicle that a cocaine order, after which Louie would followed them from New York (II App. communicate with defendant to inform 226). him that there was a package to pick up in New York (II App. 179). Defendant Although defendant disavowed would then drive to New York, take most of the incriminating statements he delivery of a VCR containing cocaine and had made on the night of his arrest, he drive back to Pennsylvania in order to reiterated his initial contention that the deliver the VCR to Willow. Louie would cocaine and crack cocaine seized from his
3 pants were for his own personal use. (II why would[n’t] you get two ounces, bring App. 228). He went to New York to it back when you can sell one of those two obtain cocaine because it was cheaper and make enough money to buy another there. He admitted he introduced people one or two ounces and use the other to his sources and facilitated their ounce?” (II App. 345). purchases in order to obtain a cheaper . . . [I]f you bring back an price for his own drugs. (II App. 228-30). ounce of cocaine and you He was unemployed on June 30, 1998, but break it down to eight balls testified that he had paid $1,000 for the and sell it at $150 each, you nearly two ounces of cocaine and crack can see that you can use half cocaine seized from his pants. He and sell half [,] an eight ball explained that the $770 seized from him at [ ] being an eighth of an the time of the stop was the proceeds of ounce. You can sell it to the sale of two cars that belonged to his make enough money to buy father. (II App. 238, 235). another ounce on your own. On cross-examination defendant (IV App. 346) admitted that on occasion he would sell some of what he brought back for himself The jury found defendant guilty. It to finance his next purchase, cocaine being did not, and was not required to, make a much cheaper in New York. (II App. 283- special finding as to whether the drugs 84). Specifically, defendant admitted that found in defendant’s pants were possessed he had sold one-eighth ounce quantities or with intent to distribute. “eight balls,” of cocaine in Milton for Using the 1998 edition of the approximately $150 and that he sold an United States Sentencing Guidelines “eight ball” of cocaine to an undercover Manual the probation officers who state trooper 30 days before his arrest on prepared defendant’s presentence report May 29, 1998. (II App. 285). Defendant (“PSR”) calculated the drug quantity under set his price so as to be able to use the the drug trafficking guideline at U.S.S.G. proceeds to purchase more cocaine. (II § 2D1.1. The calculation included i) the App. 287). 448 grams of powdered cocaine found in During his principal and rebuttal the VCR at the time of arrest, ii) 50 ounces closing arguments the Assistant United of cocaine that defendant admitted he States Attorney argued strenuously that possessed for distribution on previous both the cocaine contained in the VCR and trips, iii) the 16.3 grams of crack cocaine the cocaine and crack seized from found on defendant’s person that defendant’s pants were possessed with defendant told the trooper were for intent to distribute. Citing the fact that personal use, and iv) the 34.2 grams of cocaine was much cheaper in New York powdered cocaine found on defendant’s the government asked rhetorically “. . . person that defendant told the troopers
4 were for personal use. These quantities, In defendant’s circumstances his when converted to marijuana equivalents, sentencing range would have been 78 to 97 yielded a total weight of 705.94 kilograms months. Even if only a portion of the of marijuana. (PSR, par. 4-12). drugs found in defendant’s pants were found to have been for personal use and Pursuant to U.S.S.G. § 2D1.1(c)(5) were excluded from the base offense level this amount fell within the 700 to 1,000 computation, defendant would have fallen kilogram range, resulting in an offense into a less than 700 to 1,000 kilogram level of 30. An offense level of 30, range, and his sentencing range would combined with a criminal history category have been less than 121 to 151 months. In of III, produced a sentencing range of 121 any event, this contention was not raised in to 151 months. the District Court. At sentencing defendant’s counsel Defendant appealed his conviction. raised an objection to the computation of The appeal focused on the suppression of the offense level, arguing that the evidence obtained during his arrest. The uncharged “historical” distributions Court of Appeals affirmed the judgment of attributed to defendant should not be the District Court. included. The court rejected this argument and sentenced defendant to 121 months On October 30, 2001 defendant imprisonment. filed an amended petition for post conviction relief pursuant to 28 U.S.C. § At the time of sentencing the Courts 2255. He contended, among other things, of Appeals for the Seventh and Ninth that his trial counsel had been ineffective Circuits had held that drugs possessed for in failing to object to consideration of drug personal use may not be included in quantities which were for personal use. In calculating a Guideline sentence for two comprehensive opinions dated August possession with intent to distribute under 22, 2002 and November 1, 2002, U.S.S.G. § 2D1.1. United States v. Wyss, respectively, the District Court addressed 147 F.3d 631 (7 th Cir. 1998); United States the six claims that defendant advanced. v. Kipp, 10 F.3d 1463 (9 th Cir. 1993). The Court ordered that the petition be Defense counsel did not argue that the denied in its entirety and that there was no drugs found in defendant’s pants were for basis for issuance of a certificate of personal use and should not be counted in appealability. computing the offense level. Had he successfully argued that point, the drugs in Relevant to the instant appeal is the the VCR and the drugs previously portion of the District Court opinion that distributed would have produced a total dealt with defendant’s contention that his marijuana equivalent of 373.1 kilograms. trial counsel was ineffective for failing to Marijuana in the range of 100 to 400 argue at the time of sentencing that the kilograms produced an offense level of 26. drugs found in his pants were for personal
5 use and should not have been included in intertwined” with her attempted purchase the offense level computation. The Court for distribution, the entire quantity should noted that as of the date of its opinion the be countable for sentencing purposes. Court of Appeals for the Second and Fraser, 243 F.2d at 477. Applying the Eighth Circuits had joined those of the reasoning of the Fraser dissent, the District Seventh and Ninth Circuits in holding that Court stated: when calculating the base offense level for W e believe that the a conviction of possession with intent to reasoning of the Fraser distribute, a District Court must exclude dissent is applicable to those drug quantities reserved for personal Jansen’s case. Jansen’s use. United States v. Williams, 247 F.3d possession of the crack 353, 355 (2 nd Cir. 2001); United States v. cocaine was part and parcel Fraser, 243 F.3d 473, 475 (8 th cir. 2001)1 . of his attempt to distribute The opinion also referred to the one Court the powder cocaine in the of Appeals opinion which holds that VCR. The crack was personal use quantities may be included in obtained as a result of the calculation of the base offense level. Jansen’s trip to New York. United States v. Antonietti, 86 F.3d 206, Jansen received the crack 210 (11th Cir. 1996). from the person who gave The District Court disagreed with him the VCR. The the premise it attributed to the majority of connection between the the Court of Appeals that “the act of drugs Jansen intended to setting aside narcotics for personal distribu te (the powder consumption is . . . not a part of a scheme cocaine in the VCR) and the or plan to distribute these drugs. Williams, drugs Jansen allegedly 247 F.3d at 358.” (I App. 54). Instead the intended for his own use District Court found persuasive the (the crack on his person) reasoning of the dissent in Fraser. The was strong enough that his dissent contended that when a defendant’s use of both drugs “occurred attempted purchase of the drugs for during the commission of p e r s o n a l u s e w a s “ i n e x t r ic a b ly the offense of conviction.” Therefore, all amounts of 1 drugs possessed by Jansen After the District Court issued its were properly considered to opinion the Court of Appeals for the Sixth be relevant conduct. Circuit joined the courts which had held that in a possession with intent to distribute case (I App. 56) possession of drugs for personal use could not be considered relevant conduct for sentencing Recognizing that its decision purposes. United States v. Gill, 348 F.3d 147 conflicted with the holdings of four courts (6th Cir. 2003).
6 of appeals, the District Court stated that “a constituted deficient performance. Rather valid question may be raised as to whether it held that even if performance were counsel’s failure to object to our sentence deficient, defendant suffered no prejudice, c a lc u l a t io n c o n s t it u t e d d ef i c ie n t ruling that personal use quantities are not performance.” (I App. 57). However, excluded from the base offense level because the Court had concluded that all of computation in a possession with intent to the drugs, including those found in distribute conviction. This ruling raises a defendant’s pants, should be included, it question of law and is subject to plenary found that defendant had suffered no review. Parrish v. Fulcomer, 150 F.3d prejudice from any shortcomings of his 326, 327 (3d Cir. 1998). counsel, i.e., he “[had] failed to establish III. Discussion that there is a reasonable probability that, but for counsel’s failure to object, the To succeed on a claim of result of the proceeding would have been ineffective assistance of counsel, a different.” (Id.). The District Court defendant must show both that i) the denied defendant’s claim of ineffective performance of counsel fell below an assistance of counsel. objective standard of reasonableness and ii) the errors of counsel prejudiced the Defendant requested a certificate of defense. Strickland v. Washington, 466 appealability from this Court. We granted U.S. 668, 687-88, 691-92 (1994). To the request on the issue whether establish the first prong a defendant must defendant’s counsel was constitutionally “establish . . . that counsel’s performance ineffective for failing to argue at his was deficient.” Jermyn v. Horn, 266 F.3d sentencing hearing that the drugs seized 257, 282 (3d Cir. 2001). “This requires from his person should not have been showing that counsel was not functioning included in the base offense calculation for as the 'counsel' guaranteed defendant by possession with intent to distribute. This the Sixth Amendment." (Id.). appeal followed. In the circumstances of this case II. Jurisdiction and Scope of Review defense counsel’s failure to raise the The District Court had subject personal use argument at the time of matter jurisdiction of defendant’s petition sentencing must be deemed to constitute for post-conviction relief pursuant to 28 ineffectiveness. The District Court did not U.S.C. § 2255. We have jurisdiction of his find otherwise and the government does appeal pursuant to 28 U.S.C. §§ 1291 and not contend otherwise. From the time of 2253(a). his arrest until he testified at his trial defendant maintained that the drugs found The District Court did not make a in his pants were for personal use. There finding with respect to Defendant’s was evidence that he intended to sell some contention that his counsel’s failure to of those drugs in order to finance future object to the sentencing computation
7 purchases. At trial the government did not that trial counsel is ineffective for failing argue that none of those drugs were for to urge that a defendant was entitled to an personal use; rather it argued that some of arguably available minor role Sentencing the drugs found in defendant’s pants were Guideline reduction. United States v. to be sold to enable him to continue to Headley, 923 F. 2d 1079, 1084 (3 rd Cir. obtain drugs for personal use. 1991). By the same token where defense counsel fails to object to an improper At the time of sentencing two enhancement under the Sentencing Courts of Appeals had held that drugs Guidelines, counsel has rend ered possessed for mere personal use are not ineffective assistance. As the District relevant to the crime of possession with Court recognized, the controlling issue is intent to distribute and should not enter whether defendant suffered prejudice by into the base offense level computation. reason of this failure. United States v. Wyss, supra; United States v. Kipp, supra. One Court of If some or all of the drugs Appeals had held that drugs possessed for discovered on defendant’s person were for personal use should be included in the base personal use and if possession of drugs for offense level computation in a possession personal use should not constitute relevant with intent to distribute case. United conduct when a defendant is sentenced for States v. Antonietti, 86 F.3d 206 (11th Cir. possession with intent to distribute, 1996). However, Antonietti was not a defendant suffered prejudice in this case. mere possession case; it was a case that Even a small reduction in the quantity of included a charge of conspiracy to possess drugs entering into the base offense level with intent to distribute and thus arguably computation would have placed defendant was distinguishable from Wyss and Kipp. in a less than 700 to 1,000 kilogram range. Competent counsel would have advanced It is for the District Court to determine the at sentencing the contention that the drugs amount of drugs, if any, which defendant defendant claimed were for personal use possessed for personal use. Whether such should not enter into the computation of possession constitutes relevant conduct for the base offense level. the purpose of computing defendant’s base offense level is a question of law that has Despite a strong presumption that not yet been decided by this Court. counsel’s performance was reasonable, Strickland, 466 U.S. at 689, that Defining relevant conduct, U.S.S.G. presumption is overcome here. The §1B1.3 reads in pertinent part: conclusion that counsel’s performance was (a) . . . unless otherwise ineffective is not based on hindsight. The specified, (i) the base decisions in Wyss and Kipp were readily offense level where the available to him. Nor can any considered guideline specifies more sound strategy be discerned for failing to than one base offense level . raise the personal use issue. We have held
8 . . should be determined on require grouping of multiple the basis of the following: c o u n t s , a ll a c t s a nd omissions described in (1) (A) all acts and subdivisions (1)(A) and o m i s s i o n s (1)(B) above that were part committed, aided, of the same course of abetted, counseled, conduct or common scheme c o m ma n d e d , or plan as the offense of induced, procured, or conviction;2 willfully caused by the defendant; and Applying these provisions, five Courts of Appeals have held that in a (B) in the case of a possession for distribution case possessing jointly undertaken drugs for personal use does not constitute criminal activity (a relevant conduct and the quantity of such criminal plan, drugs should not be included when scheme, endeavor, or computing the base offense level. Only enterprise undertaken the opinion in Antonietti and the dissent in by the defendant in Fraser take a contrary view. concert with others, whether or not A common rationale runs through charged as a each of the five majority opinions. Each c o n s p i r ac y ) , a l l contrasts the seriousness of the offense of r e a s o n a b l y distributing drugs with that of possession foreseeable acts and for one’s personal use and rejects an omissions of others interpretation of the guidelines that would in furtherance of the punish each of these offenses with equal jointly undertaken severity. For example, in Kipp the Court criminal activity, observed that “. . . failure to distinguish the amount possessed for personal use from that occurred during the the amount possessed for distribution commission of the offense contravenes a fundamental principle of the of conviction, in preparation Sentencing Guidelines - proportionality in for that offense, or in the sentencing - because it would result in course of attempting to sentencing a drug user who possessed 50 a v oid d e t e c ti o n o r grams for personal use and gave one away respo nsibility for that more harshly than a drug dealer who offense; (2) solely with respect to 2 offenses of a character for These provisions in the 1998 Guidelines Manual are the same as the which §3D1.2(d) would provisions in the current manual.
9 possessed 49 grams for distribution.” 10 10 F.3d at 1465, 66 (footnote omitted). F.3d at 1466. Although arriving at the Similarly in Williams the Court held that same conclusion, the various Courts have “[u]nder U.S.S.G. § 1B1.3(a)(2), in reached that destination by different determining the quantity of drugs relevant routes. to a defendant’s offense level under the sentencing guidelines, only drugs ‘that Two of the cases, Kipp and were part of the same course of conduct or Williams, rely upon Section (a)(2) of common scheme or plan as the offense of U.S.S.G. §1B1.3. In Kipp the Court conviction’ are to be considered,” and that stated: drugs possessed for personal use are not The guidelines instruct the “part of the same course of conduct” or District Court to calculate “common scheme” as drugs intended for the base offense level using distribution. 247 F.3d at 357. The Court, only the quantity of drugs as have the other Courts of Appeals, involved in the count of distinguished Antonietti on the basis that conviction and quantities Antonietti involved a conspiracy to that “were part of the same possess with intent to distribute, course of conduct or part of implicating different considerations, see a common scheme or plan U.S.S.G. §1B1.3(a)(1)(B). as the count of conviction.” Two of the Courts, while agreeing U.S.S.G. § 1B1.3(a)(2). with the results in Kipp and Williams, Drugs possessed for mere reject reliance on Section (a)(2), and either personal use are not relevant expressly or by implication rely on Section to the crime of possession (a)(1) of U.S.S.G. § 1B1.3 for their with intent to distribute conclusion that possession for personal use because they are not “part of is not relevant conduct in a distribution the same course of conduct” case. They note that Section (a)(2) applies or “common scheme” as “solely with respect to offenses of a drugs intended for character for which § 3D1.2(d) would distribution. Accordingly, require grouping of multiple counts” and we hold that in calculating further note that simple possession is not the base offense level for one of the crimes listed in the grouping possession with intent to rule. As the Court stated in Gill: distribute, the district court must make a factual finding Simple possession is not as to the quantity of drugs “relevant” under Section possessed for distribution 1B1.3(a)(2), as “part of the and cannot include any same course of conduct or amount possessed strictly common scheme or plan,” for personal use. because that section applies
10 only if the two offenses can conduct in a possession with intent to be grouped under Section distribute case. The opinion set forth 3D1.2(d). See Hill, 79 F.3d common sense reasons for excluding at 1482. Simple possession possession of drugs for personal use as is not one of the crimes relevant conduct. listed in this grouping rule In Gill the Court, having held that triggers the application Section (a)(2) to be inapplicable, relied on of that relevant conduct Section (a)(1) for its holding that section. possession of drugs for personal use is not 348 F.3d at 153. Wyss is to the same relevant conduct when computing the base effect. Citing Section (a)(2) the Court offense level in a possession for stated that “[t]o count as relevant conduct distribution case: under the federal sentencing guidelines, a Uncharged conduct may be drug offense . . . must be part of the same considered in calculating the course of conduct or common scheme or sentencing range under the plan, as the offense of conviction.” Then Sentencing Guidelines only he noted that “[i]t can be that only if it is if the conduct is “relevant.” part of the same group of offenses for Returning to the Sentencing sentencing purposes.” 147 F.3d at 632. G u i d e l i n es M anua l’s This suggests that the Court was stating language - - which we that if Section (a)(2) were applicable hesitate to describe as possession of drugs for personal use would “plain,” although it is be relevant conduct as part of the same unequivocal - - the course of conduct or common scheme. defendant’s possession of This, of course, is contrary to the opinions drugs for personal use in Kipp and Williams which held that cannot be considered an Section (a)(2) is applicable but that “act[ ] . . . that occurred possession for personal use is not part of during the commission of the same course of conduct or common the offense of conviction, in scheme to posses for distribution. The preparation for that offense, Court in Wyss concluded, however, that or in the course of Section (a)(2) was not applicable because attem pti n g t o a v o id possession for personal use cannot be detection or responsibility grouped with other offenses. for that offense” under Wyss, after rejecting reliance on Section 1B1.3(a)(1), since Section (a)(2), did not refer to Section the offense of conviction (a)(1), but by implication must have required an intent to concluded that Section (a)(1) did not distribute to accompany the render mere possession for use relevant act of drug possession under
11 21 U.S.C. § 841(a). to distribute. In a conspiracy the amount P o s s e s s i n g d r u g s f or of drugs involved is unaffected by the use personal use was not part of that a defendant makes of the drugs. Gill, o r c o n n e c te d t o th e 348 F.3d at 154, Williams, 247 F.3d at commission of, preparation 357-58, Fraser, 243 F.3d at 475 n.4; Wyss, for, or concealment of the 147 F.3d at 632. The dissent in Fraser distribution type offense. advanced the position that Fraser’s “purported purchase of methamphetamine 348 F.3d at 153 (citations omitted). for her own use, purchased at the same It is not entirely clear whether the time as the methamphetamine she intended majority opinion in Fraser relied on to sell is tested under the more general Section (a)(2) for its holding that relevant conduct provision contained in § possessing drugs for personal use is not 1B1.3(a)(1)(A). Under § 1B1.3(a)(1)(A), relevant conduct in a possession for relevant conduct includes ‘all acts . . . that distribution case. The opinion cited occurred during the commission of the approvingly both Wyss, which rejected offense of conviction.’” 243 F.3d at 476- reliance on Section (a)(2), and Kipp, 77 (emphasis in original). The dissent which relied on Section (a)(2). By emphasized that “[t]he attempted drug implication the majority opinion holds that purchase was one transaction involving a Section (a)(1) does not require that single, fungible quantity and a single type possessing drugs for personal use be of drug” and, relying on Antonietti, deemed relevant conduct in a possession concluded that “whether Ms. Fraser with intent to distribute case. purchased some of the drugs for her personal use ‘make[s] no difference’ in By one route or another five Courts computing her sentence under the of Appeals have reached the same Guidelines.” 243 F.3d at 477. conclusion. Only the Court of Appeals for the Eleventh Circuit has held that when The District Court in the instant calculating the base offense level under § case found the reasoning of the dissent 2D1.1 of the Guidelines drugs possessed persuasive. The Court noted that all the for personal use should be included. seized drugs derived from a single United States v. Antonietti, supra. Kipp purchase in New York City, although was decided before the decision in some of the drugs were transported in a Antonietti. Each of the relevant Court of VCR and some were stored in defendant’s Appeals cases that was decided after pants. It, therefore, held that, applying An tonietti distinguished An tonietti, U.S.S.G. § 1B1.3(a)(1)(A), all of the drugs pointing out that it was not a simple should be included in the computation of possession with intent to distribute case; the base offense level. rather it dealt with not only possession The government urges that we with intent to distribute but also conspiracy adopt the rule advanced in the Fraser
12 dissent and applied by the District Court, personal use is qualitatively very different contending that “the operation of section from the crime of possession with intent to 1B1.3(a)(1) is not qualified by the distribute and merits a significantly operation of section 1B1.3(a)(2), and the different level of punishment. Were the base offense level was p roperly quantity of drugs possessed for use added ‘determined on the basis of all acts . . . to the quantity possessed for distribution committed [ ]. . . by the defendant . . . that serious sentencing anomalies could result. occurred during the commission of the As stated in Kipp, it would contravene “a offense of conviction.” (Govt. Brief at 29, fundamental principle of the Sentencing 30). The government argues that U.S.S.G. G u i d e l in e s - p r o p o r t i o n a l i t y i n § 1B1.3(a)(1)(A) says nothing about sentencing.” 10 F.3d at 1466. whether an act need be part of a scheme or The government has argued, and plan to distribute drugs in order to be several Courts have agreed, that Section counted as relevant conduct. Rather, (a)(2) is inapplicable because it applies under § 1B1.3(a)(1)(A), if the act “solely with respect to offenses of a “occurred during the commission of the character for which §3D1.2(d) would offense of conviction,” it is relevant. If require grouping of multiple counts,” and this argument were accepted defendant’s the offense of simple possession is not possession for personal use occurred groupable under that section. We during the commission of the crime of conclude, however, that the “offenses” to possession with intent to distribute and which reference is made in Section (a)(2) should, therefore, be considered relevant are the offenses, or offense, of conviction, conduct. In such event he would not have in this case possession of drugs for been prejudiced by the failure of his distribution covered by U.S.S.G. §2D1.1 (a counsel to have raised the issue at the time groupable offense). An offense within the of sentencing. meaning of Section (a)(2) is not the crime Contrary to the government’s constituting asserted relevant conduct, in contentions, we conclude that Section this case mere possession of drugs covered (a)(2) is applicable, that mere possession by U.S.S.G. §2D2.1. In other words of a drug for personal use is not part of the Section (a)(2) defines what constitutes a same course of conduct or common defendant’s relevant conduct when the scheme as the offense of possession with offense of conviction is a groupable intent to distribute drugs and that Section offense, regardless of the nature of the (a)(1) is not applicable. alleged relevant conduct. In this respect we disagree with the Courts of Appeals As observed by the five Courts of which have held that because simple Appeals that have reached a similar possession of drugs is not a groupable ultimate conclusion, this result is in accord offense Section (a)(2) is inapplicable. with an overall objective of the Sentencing Guidelines. The crime of possession for This conclusion and our further
13 conclusion that Section (a)(2) stands on its of mere possession of drugs and the own and is not expanded or superseded by offense of possession with intent to the provisions of Section (a)(1) finds distribute. In light of these differences one support in the Application Notes to who happens to possess drugs for his own U.S.S.G. §1B1.3. Application Note 1 personal use is not engaged in a “common treats the two sections as two distinct scheme or plan” with or the “same course provisions 3 . Application Note 2 deals of conduct” as, the perpetrators (including extensively with Section a(1)(A) and (B). himself) of a distribution scheme. This Application Notes 3 through 10 largely conclusion is in accord with the Guideline govern Section (a)(2). Application Note 3 Commentary discussing these terms4 . provides in part, that “‘[o]ffenses of a character for which §3D1.2(d) would 4 require grouping of multiple counts,’ as 9. “Common scheme or plan” and used in subsection (a)(2), applies to “same course of conduct” are two closely offenses for which grouping counts would related concepts. be required under § 3D1.2(d) had (A) Common scheme or plan. For two defendant been convicted of multiple or more offenses to constitute part of a counts.” That describes the circumstances common scheme or plan, they must be in the present case, in which the drug substantially connected to each other by at distribution offe nse is groupable . least one common factor, such as common Application Note 10 emphasizes the victims, common accomplices, common different approaches of Sections (a)(1) and purpose, or similar modus operandi. For (a)(2) stating in part “[s]ubsections (a)(1) example, the conduct of five defendants who and (a)(2) adopt different rules because together defrauded a group of investors by offenses of the character dealt with in computer manipulations that unlawfully subsection (a)(2) (i.e., to which §3D1.2(d) transferred funds over an eighteen-month applies) often involve a pattern of period would qualify as a common scheme or plan on the basis of any of the above listed misconduct that cannot readily be broken factors; i.e., the commonality of victims (the into discrete, identifiable units that are same investors were defrauded on an ongoing m eaningful for the purposes of basis), commonality of offenders (the conduct sentencing.” constituted an ongoing conspiracy), We have alluded above to the commonality of purpose (to defraud the group significant differences between the offense of investors), or similarity of modus operandi (the same or similar computer manipulations were used to execute the scheme). 3 “. . . Under subsections (a)(1) and (B) Same course of conduct. Offenses (a)(2), the focus is on the specific acts and that do not qualify as part of a common omissions for which the defendant is to be scheme or plan may nonetheless qualify as held accountable in determining the applicable part of the same course of conduct if they are guideline range . . .” sufficiently connected or related to each other
14 Thus we agree with the majority of If any significant portion of the the Courts of Appeals to address the issue drugs found in defendant’s pants was for (Kipp, Wyss, Williams, Fraser majority personal use he was prejudiced by the and Gill) that possession of drugs for failure of his counsel to object to the personal use is not part of the same course inclusion of such drugs in the computation of conduct or common scheme or plan as of his base offense level. The quantity of possession with intent to distribute and drugs that defendant held for personal use, therefore is not relevant conduct in a if any, will require a finding by the District distribution case5 . Court. The Fraser dissent notes a problem with which district courts will have to deal as to warrant the conclusion that they are part when applying the requirement to exclude of a single episode, spree, or ongoing series of drugs possessed for personal use in offenses. Factors that are appropriate to the determination of whether offenses are distribution cases: “[t]o require district sufficiently connected or related to each other courts to parse out personal use quantities to be considered as part of the same course of whenever such an allegation is made (and conduct include the degree of similarity of the I am sure it will often now be made) will offenses, the regularity (repetitions) of the needlessly burden them with yet another offenses, and the time interval between the finely tuned quantity decision to make offenses. When one of the above factors is under the Sentencing Guidelines system.” absent, a stronger presence of at least one of 242 F.3d at 477. The relevant cases the other factors is required. For example, illustrate this problem. In Kipp the where the conduct alleged to be relevant is defendant admitted to possessing 80 to 90 relatively remote to the offense of conviction, grams of cocaine but argued that he a stronger showing of similarity or regularity possessed all but five or six grams for his is necessary to compensate for the absence of temporal proximity. The nature of the own personal use. In Fraser the defendant offenses may also be a relevant consideration was arrested when she attempted to (e.g., a defendant’s failure to file tax returns in purchase 456.6 grams of three consecutive years appropriately would methamphetamine. At the sentencing be considered as part of the same course of hearing she testified that she intended to conduct because such returns are only required consume the majority of the drugs; the rest at yearly intervals). she intended to distribute to family and friends. The government produced U.S.S.G. §1B1.3(a)(1), Application Note 9. 5 In his concurring opinion Judge Alito expresses reservations about this conclusion Appeals is consistent with the structure and and notes that “[i]t seems likely that the commentaries of the Sentencing Guidelines, Sentencing Commission has not considered Judge Alito’s suggestion that the Commission this issue.” While we have concluded that the address the issue specifically as soon as position of the majority of the Courts of possible makes good sense.
15 evidence that the defendant had sold taken by most of the courts of appeals methamphetamine in the past. In Williams regarding the application of U.S.S.G. § the defendant, a chronic drug user, claimed 1B1.3(a)(1) and (2) in this context is not that a major part of the 68.9 grams seized easy to reconcile with the language of upon his arrest was for personal use. In those provisions, and there seem to be Gill the defendant contended that of the reasonable policy arguments on both sides 35.4375 grams of cocaine in his possession of the question. On the one hand, it may only 6.8 grams was possessed with intent be argued that drugs possessed solely for to distribute. Each case was remanded so personal use should not have the same that the district court could determine the sentencing consequences as those amount of drugs possessed for personal possessed for distribution. On the other use and for re-sentencing based upon only hand, when it has been proven that a the drugs possessed for distribution. defendant possessed drugs with the intent to distribute, the difficulty of deciding Fortunately the already existing whether some portion of those drugs was record in the present case permits the possessed solely for personal use may District Court to make a reasonable counsel against a rule requiring such a calculation of the amount, if any, of the determination. drugs contained in defendant’s pants that were intended for personal use without the necessity of a full blown evidentiary It seems likely that the Sentencing hearing. Commission has not considered this issue. IV. Conclusion If it has, it certainly has not made that clear. If it has not, it should. In view of We have concluded that when the position taken by the great majority of sentencing a defendant for possession of the courts of appeals, I concur in this case, drugs with intent to distribute the court but I urge the Sentencing Commission to should not include for the purpose of address the issue as soon as possible. computing the base offense level drugs which the defendant possessed for personal use. Accordingly, the order of the District Court will be reversed and the case remanded for further proceedings in accordance with this opinion.
ALITO, Circuit Judge, concurring. The issue presented in this case is one that should be resolved by the Sentencing Commission. The position