United States v. Chambers ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
1-29-2003
USA v. Chambers
Precedential or Non-Precedential: Non-Precedential
Docket 02-2833
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2833
UNITED STATES OF AMERICA,
Appellee
v.
STUART CHAMBERS,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
Chief District Court Judge: The Honorable Thomas I. Vanaskie
(D.C. Civ. No. 01-369)
Submitted Under Third Circuit L.A.R. 34.1(a)
January 28, 2003
Before: SLOVITER and RENDELL, Circuit Judges, and
DEBEVOISE, * Senior District Court Judge
(Opinion Filed: January 29, 2003)
OPINION OF THE COURT
*
Honorable Dickinson R. Debevoise, Senior United States District Judge for the District of
New Jersey, sitting by designation.
DEBEVOISE, Senior District Court Judge
Appellant, Stuart Chambers, pled guilty to one count of an information charging
conspiracy to travel in interstate and foreign commerce in aid of the distribution and
possession with intent to distribute cocaine base (crack) in violation of 18 U.S.C. §§1952and 371 and to the second count of the information charging interstate travel in aid of
racketeering activity in violation of 18 U.S.C. §§1952(a)(3) and 2. The District Court
sentenced Chambers to 108 months of imprisonment followed by three years of supervised
relief. The Court rejected Chambers’s contentions that (i) his Base Offense Level should
be 30 rather than 32 because some of the cocaine base was intended for personal use, (ii)
the District Court should depart downwards based upon the low purity level of the cocaine
base and iii) the Court should depart downwards based upon an asserted overstatement of
his criminal history. On this appeal Chambers challenges the first two of these rulings. We
find that the District Court ruled correctly and will affirm.
I. Background
On June 13, 2001 Chambers, Angela Moultrie, Larry Butcher and Courtney Simard
were stopped by a Pennsylvania State Police Officer at an exit of the Pennsylvania
Turnpike. A plastic bag containing one chunk of a beige, rock-like substance having the
appearance of crack cocaine was discovered in a suitcase in the car trunk. Subsequent tests
disclosed that the substance contained cocaine base and caffeine with a net weight of 55.1
grams and a concentration of 45%. At the police station where the four persons were taken
a guard discovered a beige rock-like substance in Chambers’s pocket. Subsequent tests
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disclosed that it contained cocaine base and caffeine with a net weight of 0.14 grams and a
concentration of 72%.
During the course of subsequent proceedings Chambers gave conflicting statements.
On August 23, 2001 he signed an affidavit in which he took full responsibility for the drugs,
stating that Butcher and Moultrie had no knowledge of the crack cocaine. Chambers’s
counsel in a letter dated September 24, 2001 submitted a proffer statement on his behalf to
the government. In the letter Chambers admitted that he had previously signed a false
affidavit. He stated that he and Butcher were partners, and that when the car was stopped
they were returning to Watertown from Philadelphia where they had traveled to purchase
crack cocaine.
On motion of the government Chief District Court Judge Vanaskie dismissed
indictments against Butcher and Moultrie. A two count information was filed against
Chambers. Count I charged that on or about June 13, 2001 Chambers conspired to travel in
interstate and foreign commerce in the aid of the distribution of and possession with intent
to distribute cocaine base, in violation of 18 U.S.C. §§1952 and 371. Count II charged that
Chambers traveled in interstate and foreign commerce with the intent to promote the
distribution and possession with intent to distribute cocaine base and thereafter performed
and attempted to perform acts to facilitate the promotion and carrying on of this unlawful
activity in violation of §§1952(a)(3) and 2.
Chambers pled guilty to the information. The parties stipulated in the plea
agreement that the Base Offense Level under the Sentencing Guidelines should not be less
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than 30 or more than 32. The parties agreed that Chambers would argue at sentencing that
the appropriate level was 30 and that the government would argue that the appropriate level
was 32.
A Presentence Investigation Report (“PSR”) was prepared. The PSR concluded that
the Base Offense Level was 32 because the offense involved between 50 and 150 grams of
cocaine base. With three levels deducted for acceptance of responsibility the Total
Offense Level was determined to be 29. With a criminal history category of III, the
Guideline range was 108-120 months.
II. The Sentencing Proceedings
Judge Vanaskie held a sentencing hearing on June 26, 2002. Chambers advanced
three contentions: i) The Base Offense Level should be 30 rather than 32 because some of
the cocaine base was intended for personal use; ii) the district court should depart
downwards based upon the purity level of the cocaine base; and iii) the court should depart
downwards based upon over-statement of Chambers’s criminal history.
With respect to the quantity of cocaine base, Chambers argued that in the case of a
drug sale, whether or not a part of a conspiracy, the portion of the drugs that the seller held
for personal use should not be counted in computing relevant conduct. Thus, of the 55.1
and 0.14 grams seized in this case, the portion that Chambers intended for personal use
should not be counted, and the government had the burden of proving what was not intended
for personal use. Judge Vanaskie rejected this argument, holding that in the case of a drug
conspiracy charge, the entire quantity of drugs handled, including that intended for personal
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use, is relevant conduct for the purpose of calculating the base offense level. Further, he
found that “. . . the mere assertion by the defense, the bold assertion by the defense that
some part of it was for personal consumption is not enough to overcome the Government’s
evidence that, in this case, a 55-gram rock was found in the car, at the time of the arrest,
that’s enough, and defense has not come forward to require the Government to do anything
more than it has in this case.” (App. p. 49).
With respect to Chambers’s motion for a downward departure based upon the low
purity rate of the drug (45% for the cocaine base found in the car and 72% for the cocaine
base found in Chambers’s pocket), Judge Vanaskie referred to the Court’s decision in
United States v. Benish, 5 F.3d 20 (3d Cir. 1993), but noted that it preceded the Supreme
Court’s decision in Koons v. United States, 518 U.S. 81 (1996). He agreed with the
defense position that the low purity of a controlled substance involved in a crime cannot be
categorically excluded as a basis for a downward departure. He declined, however, to
exercise his discretion, stating, “ . . . while I recognize that if the purity level was
sufficiently below what might be the typical purity level, I don’t find that burden has been
carried in this case to show that 45 percent is far below the typical level as to warrant a
departure, and, therefore, I decline to depart on that basis and choose not to exercise my
discretion to depart on that basis.” (App. at p. 63)
The court also denied Chambers’s motion to depart on the ground that there had
been an over-statement of Chambers’s criminal history.
Chambers appealed the ruling that his Base Offense Level should be 30 and the
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denial of his motion for a downward departure based on the impurity of the seized drugs.
III. Discussion
Chambers relies heavily upon United States v. Wyss, 147 F.3d 631 (7th Cir. 1988)
for the proposition that the quantity of drugs which the seller holds for personal use should
not be included in relevant conduct when determining the Base Offense Level. In that case
the defendant was convicted of possession of marijuana with intent to distribute. The issue
on appeal was whether the purchase of cocaine for personal consumption, rather than for
sale, should have been counted as conduct relevant to the marijuana conviction and
therefore used to enhance the sentence. The court held that “[i]t was, therefore, improper
for the judge to take account of the defendant’s possession of cocaine for personal use (if
that is what she did) in sentencing him for possession with intent to distribute “Id. At 632.
The instant case includes a conspiracy charge, and the Wyss opinion notes that the result
would be different in the event of such a charge:
The case would be different, as we noted in United States v. Snook, 60 F.3d
394 (7th Cir. 1995), if the charge were conspiracy rather than possession.
•••
Suppose that X sells Y a kilogram of cocaine in circumstances that make Y a
conspirator with X and not merely a buyer from him. The amount of drugs
involved in the conspiracy is unaffected by the use that Y makes of the drugs.
It makes no difference whether he sells the entire amount and buys drugs for
his personal consumption on the open market with the proceeds or keeps a
portion of the drugs to consume personally as compensation for his
participation in the conspiracy. But the defendant in our case was not
convicted of conspiracy and the judge made no finding that, convicted or not,
he was a participant in a conspiracy.
Id. at 632
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Courts of Appeals that have considered the issue support Judge Vanaskie’s decision
to include the amount of cocaine claimed to be for personal use. For example, in United
States v. Asch, 207 F.3d 1238 (10th Cir. 2000) the court framed the issue as follows:
This case requires us to address, as a matter of first impression, whether a
sentencing court, when determining the applicable sentencing range for an
individual convicted of conspiracy to distribute and possess with intent to
distribute controlled substances, can, under the United States Sentencing
Guidelines and 21 U.S.C. §841(b), include in its quantity calculations drugs
possessed for personal consumption.
Id. at 1240.
The court held:
Every circuit to address the question has held that where a member of a
conspiracy to distribute drugs handles drugs both for personal consumption
and distribution in the course of the conspiracy, the entire quantity of drugs
handled is relevant conduct for purposes of calculating the base offense level
pursuant to the Guidelines. See United States v. Fregoso, 60 F.3d 1314,
1328-29 (8th Cir. 1995); United States v. Snook, 60 F. 3d 394, 395-96 (7th
Cir. 1995); United States v. Innamorati, 996 F.2d 456, 492 (1st Cir. 1993); cf.
United States v. Antonietti, 86 F.3d 206, 209-1- (11th Cir. 1996) (holding
that drugs possessed for personal use were relevant to offenses of
manufacturing, possessing with intent to distribute, and conspiring to
manufacture and possess with intent to distribute, and conspiring to
manufacture and possess with intent to distribute, without recognizing the
distinctions among the offenses). We conclude that this is the proper
interpretation of the broad Guidelines concept “relevant conduct,” as
demonstrated by the facts in this case.
Id. at 1243, 1244
Although our court has not addressed this precise issue, we believe that the rulings
of the courts of appeals that have addressed the issue are sound and we will follow them.
Judge Vanaskie correctly held that the cocaine that Chambers intended for personal use
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(whatever that amount may have been) did not affect computation of his Base Offense
Level.
We also conclude that Judge Vanaskie’s denial of Chambers’s motion for a
downward cannot be reviewed by this Court. Our holding in United States v. Benish, 5 F.3d
20 (3d Cir. 1993), might be interpreted to preclude departure based on the quality of the
drug involved in the offense. Holding that the district court did not have discretion to
depart downward for the age and sex of marijuana plants, we stated:
Our decision is consistent with that of the Seventh Circuit in United States v.
Upthegrove, 974 F.2d 55 56 (7th Cir. 1992), where the court held that a
downward departure under section 2D1.1 based on the quality of marijuana
was improper because “[i]t is clear from the text of the guidelines that the
Sentencing Commission adequately took into consideration the quality of the
drugs. The Sentencing Commission made an explicit decision to focus on
the weight and not the purity of the drugs in determining the offense level.”
Id. at 27, 28
After Benish was decided the Supreme Court in Koons v. United States, supra, called
for an expansive application of the discretionary power to depart when sentencing under the
Guidelines. In the belief that that opinion might have modified the Benish restrictions,
Judge Vanaskie assumed that he had discretion to depart downward based on the quality of
the drugs and decided not to exercise that discretion. We need not decide at this juncture
the precise limitations imposed by Benish or whether Koons effected a modification of any
such limitations. We do not have jurisdiction to review Judge Vanaskie’s exercise of
discretion, and if he lacked discretionary power to depart the result would have been no
different.
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Chambers advances the novel argument that failure to take into account the purity
level of the cocaine violated his Fifth Amendment due process rights and Fourteenth
Amendment equal protection rights. He has found no support in the cases and we find no
support for this argument either in the cases or in reason and therefore reject this
contention.
IV. Conclusion
We conclude that Judge Vanaskie applied correctly the Sentencing Guidelines, and
we will affirm the judgment of the District Court.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Dickenson R. Debevoise
Senior District Court Judge
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