Filed: May 21, 2004
Latest Update: Mar. 02, 2020
Summary: 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of the United 2004 Decisions States Court of Appeals for the Third Circuit 5-21-2004 Jansen v. USA Precedential or Non-Precedential: Precedential Docket No. 02-4215 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Jansen v.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 Cou
Summary: 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of the United 2004 Decisions States Court of Appeals for the Third Circuit 5-21-2004 Jansen v. USA Precedential or Non-Precedential: Precedential Docket No. 02-4215 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Jansen v.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 Cour..
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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Precedential or Non-Precedential: Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Jansen v. USA" (2004). 2004 Decisions. Paper 653.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/653
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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
16
