United States v. Janice Kay Fraser

243 F.3d 473, 2001 U.S. App. LEXIS 4036, 2001 WL 258227
Court of Appeals for the Eighth Circuit·Decided March 16, 2001·No. 00-2429SI·Published·Cited by 25 cases

Opinions

RICHARD S. ARNOLD, Circuit Judge.

Janice Fraser appeals her sentence for attempting to possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846. Ms. Fraser asserts that the District Court erroneously calculated her base offense level' by failing to exclude drug quantities she intended for her personal use. We agree, reverse, and remand.

I.

Ms. Fraser was arrested during a law-enforcement sting operation in which she attempted to purchase one pound (453.6 [474]*474grams) of methamphetamine. (The substance was actually flour.) She pleaded guilty, and at the sentencing hearing, Ms. Fraser testified that she intended to consume the majority of the drugs; the rest she intended to distribute to family and friends.1 Ms. Fraser also testified that she was addicted to methamphetamine and used between 54 to 1% grams per day. The government produced evidence that Ms. Fraser had sold methamphetamine in the past.

In deciding that 453.6 grams of methamphetamine was chargeable to Ms. Fraser under U.S.S.G. § 2D1.1, the Court did not determine how much, if any, of the methamphetamine was intended for personal use. The Court stated, “The issue of personal use need not be determined ... because, in any event, it would make no difference.” Sentencing Tr. at 64. The Court sentenced Ms. Fraser to 60 months (five years) imprisonment and five years of supervised release.2

On appeal, Ms. Fraser contends that in failing to exclude the portion of her attempted drug purchase that she intended for personal use, the Court erred in calculating her base offense level under the Sentencing Guidelines. With a lower base offense level, she argues, the Court’s downward departure might have gone farther than it did.3

II.

In calculating the base offense level, the trial court may consider all drugs that were “a part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2). We review a district court’s interpretations of the Sentencing Guidelines de novo. United States v. Larson, 110 F.3d 620, 627 (8th Cir.1997).

Whether drug purchases intended for personal use are relevant conduct where the defendant is convicted of possession with intent to distribute a controlled substance, or of an attempt to possess with the intent to distribute, is an issue of first impression in this Circuit. In conspiracy-to-distribute cases we have held that drug quantities purchased for personal use by a member of the conspiracy are relevant in determining the total drug quantity attributable to the defendant under U.S.S.G. § 2D1.1. United States v. Behler, 100 F.3d 632, 637 (8th Cir.1996), cert. denied, 522 U.S. 855, 118 S.Ct. 152, 139 L.Ed.2d 98 (1997); United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir.1995); United States v. Brown, 19 F.3d 1246, 1248 (8th Cir.) (per curiam), cert. denied, 513 U.S. 829, 115 S.Ct. 100, 130 L.Ed.2d 49 (1994); accord, United States v. Page, 232 F.3d 536, 542 (6th Cir.2000) (same), petition for cert. filed, (Jan. 3, 2001) (No. 00-7751); United States v. Snook, 60 F.3d 394, 396 (7th Cir.1995) (same); United States v. Wood, [475]*47557 F.3d 913, 920 (10th Cir.1995) (holding personal-use quantities relevant conduct in a conviction for manufacturing a controlled substance); United States v. Innamorati, 996 F.2d 456 (1st Cir.1993) (holding personal-use quantities relevant conduct in conspiracy-to-distribute case), cert. denied, 510 U.S. 1120, 114 S.Ct. 1072, 127 L.Ed.2d 391 (1994).

However, those circuits having considered the precise issue now before us are split. In United States v. Wyss, 147 F.3d 631 (7th Cir.1998), the Seventh Circuit held that in sentencing a defendant for possession with the intent to distribute, the trial court must exclude drug quantities intended for personal use. The Court stated,

To count as relevant conduct under the federal sentencing guidelines, a drug offense (and the purchase of cocaine for personal consumption is a drug offense, 21 U.S.C. § 844) must be a part of the same course of conduct, or common scheme or plan, as the offense of the conviction. U.S.S.G. § 1B1.3(a)(2). It can be that only if it is part of the same group of offenses for sentencing purposes. Id. Possession of illegal drugs for personal use can not be grouped with other offenses. U.S.S.G. § 3D1.2(d); see U.S.S.G. § 2D2.1.

Id. at 631. The Ninth Circuit agreed in United States v. Kipp, 10 F.3d 1463, 1465-66 (9th Cir.1993), holding that “drugs possessed for mere personal use are not relevant to the crime of possession with intent- to distribute.” However, in United States v. Antonietti, 86 F.3d 206, 210 (11th Cir.1996), the Eleventh Circuit declined to follow the Ninth Circuit and held that personal-use quantities were relevant for sentencing purposes in a case involving a conviction for possession with intent to distribute.4

We find Wyss and Kipp persuasive. For sentencing purposes, we note an important distinction between a conviction for conspiracy to distribute and a conviction for possession with intent, or an attempt to possess with the intent to distribute. In determining the base offense level in a conspiracy-to-distribute conviction, all reasonably foreseeable drug quantities, see U.S.S.G. § 1B1.3(a)(1)(B), that are “part of the same course of conduct or common scheme or plan as the offense of conviction,” are relevant conduct. U.S.S.G. § lB1.3(a)(2). The course of conduct, or common scheme or plan, is distribution. When a defendant, who is a member of a conspiracy to distribute, purchases drugs for her personal use from a co-conspirator, the personal-use quantities “ ‘are relevant in determining the quantity of drugs the defendant knew were distributed by the conspiracy.’ ” Fregoso, 60 F.3d at 1328 (quoting Innamorati, 996 F.2d at 492). What the buyer intends to do with the drugs, in this situation, is irrelevant.

An important distinction arises where the defendant is convicted solely of possession with the intent to distribute, or of an attempt to commit this crime.

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United States v. Janice Kay Fraser, 243 F.3d 473, 2001 U.S. App. LEXIS 4036, 2001 WL 258227 (8th Cir. 2001).

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