United States v. Gill ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Gill No. 01-6538
ELECTRONIC CITATION: 2003 FED App. 0384P (6th Cir.)File Name: 03a0384p.06 Victor L. Ivy, ASSISTANT UNITED STATES ATTORNEY,
Jackson, Tennessee, for Appellee. ON BRIEF: M. Dianne
Smothers, OFFICE OF THE FEDERAL PUBLIC
UNITED STATES COURT OF APPEALS DEFENDER, Memphis, Tennessee, for Appellant. Victor L.
Ivy, ASSISTANT UNITED STATES ATTORNEY, Jackson,
FOR THE SIXTH CIRCUIT Tennessee, for Appellee.
_________________
_________________
UNITED STATES OF AMERICA , X
Plaintiff-Appellee, - OPINION
- _________________
- No. 01-6538
v. - DAVID M. LAWSON, District Judge. The United States
> Sentencing Commission has prescribed a methodology that
, trial courts must use to determine a sentencing range in a
CHRISTOPHER GILL, -
Defendant-Appellant. - criminal case. A key ingredient of the sentencing formula in
drug cases is the quantity of a controlled substance for which
N a convicted defendant will be held accountable. A defendant
Appeal from the United States District Court is responsible for all drug quantities that are included within
for the Western District of Tennessee at Jackson. the scope of his “relevant conduct,” as that term is defined by
No. 01-10019—James D. Todd, Chief District Judge. the United States Sentencing Guidelines Manual. In this case,
Christopher Gill, the defendant, contends that his sentence for
Argued: March 12, 2003 possession with intent to distribute cocaine was too severe
because the district court included in its calculation of drug
Decided and Filed: October 31, 2003 quantity, cocaine that Gill possessed only for personal use.
We agree with this argument, for reasons explained in detail
Before: MOORE and CLAY, Circuit Judges; LAWSON, below, and therefore we vacate Gill’s sentence and remand
District Judge.* for a new sentencing hearing.
_________________ I.
COUNSEL On April 16, 2001, Gill was indicted on three counts by a
grand jury for the United States District Court for the Western
ARGUED: April R. Goode, OFFICE OF THE FEDERAL District of Tennessee, sitting in Jackson. Count one charged
PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. the defendant with possession of cocaine with intent to
distribute, contrary to 21 U.S.C. § 841(a)(1). In count two,
the grand jury alleged that the defendant knowingly possessed
*
a firearm in furtherance of a drug trafficking crime, contrary
The Honorable David M. Lawson, United States District Judge for to 18 U.S.C. § 924(c). The third and final count charged
the Eastern D istrict of M ichigan, sitting by de signation.
1
No. 01-6538 United States v. Gill 3 4 United States v. Gill No. 01-6538
unlawful possession of that same firearm by a previously deducted two points for acceptance of responsibility, see
convicted felon. See 18 U.S.C. § 922(g). All of these U.S.S.G. § 3E1.1(a), and concluded that the applicable
offenses were alleged to have been committed on sentence range, given the defendant’s placement in criminal
December 20, 2000. history category IV, was 21 to 27 months. See id. Ch. 5, Pt.
A (sentencing table).
The defendant pleaded guilty to counts one and two on
August 17, 2001, and the government agreed to dismiss the As previously stated, the defendant filed timely objections
remaining count. After receiving the presentence report, the to the presentence report, contending that he should be held
defendant objected to the recommendation that he be accountable only for 6.8 grams of cocaine, the amount in his
sentenced to 81 months in custody. Although he did not possession when he was arrested. Gill reasoned that he was
dispute the initial 60 months of that term, which stemmed not charged with conspiracy or with possession over a range
from his conviction on count two, the defendant alleged that of dates; instead the offense of conviction, according to the
the recommended 21-month sentence was based on an indictment, was that Gill possessed the cocaine that he
erroneous conclusion that he intended to distribute 35.4375 intended to distribute on a specific date. That drug amount
grams of cocaine. The basis for the probation officer’s called for a base offense level of 12, and a net offense level of
reasoning was as follows: 10, yielding a sentence range of 15 to 21 months in custody.
Mr. Gill stated to police that he had bought eight grams At sentencing, the government urged adoption of the
of powder cocaine for personal use during the weekend presentence report and read the report’s summary of the
preceding his arrest on the instant offense, and the defendant’s statements into the record. No other evidence
electronic scales he possessed were used for his own was offered concerning the amount of cocaine possessed by
quality control purposes to avoid getting shorted in his the defendant. In response to the district court’s query as to
drug transactions. However, in a written statement made the government’s position on how to account for the drugs the
to officers of the Jackson Police Department on defendant likely possessed for personal use, the Assistant
March 30, 2001, Christopher J. Gill stated that for the United States Attorney stated that he had not researched the
five weeks preceding his arrest on the instant offense, he issue, he had no witnesses available to inform the court of the
would buy approximately one-quarter ounce of “soft” “customary practice” on the street, and he found it difficult to
(powdered cocaine) and would sell out of that quantity to provide a definitive answer. J.A. at 28-29. Defense counsel
make a profit. also confessed that she knew of no authority on how such
adjustments could be made, but relied on the defendant’s
J.A. at 40. Although the calculations leading to the 35.4375- insistence that he had purchased eight grams the week before
gram figure are not provided in the report, the government his arrest and had about six grams remaining at the time of his
quite sensibly suggests that the probation officer simply arrest. Since the defendant was found in possession of 6.8
multiplied the quarter-ounce figure by five, one for each grams, defense counsel argued that use of the full eight-gram
week, and then converted 1.25 ounces to the figure of 35.4375 figure would be inaccurate and inappropriate. J.A. at 30.
grams. The probation officer then referred to U.S.S.G.
§ 2D1.1(c)(13), which establishes a base offense level of 14 The district court also stated that it had found no
in cases where the defendant is accountable for 25 to 50 controlling authority on the issue, but concluded “the law
grams of cocaine powder. The probation officer then ought to be, if it’s not, that if you possess drugs with intent to
No. 01-6538 United States v. Gill 5 6 United States v. Gill No. 01-6538
distribute some of it [sic] and you’re going to use some of it, U.S. ___, 123 S. Ct. 1380 (2003). Relevant conduct need not
then all of it is attributable to you as relevant conduct in a be charged, nor must it otherwise even be within the
drug sale case.” Id. at 31. “Otherwise,” the district court jurisdiction of the sentencing court. United States v. Hough,
reasoned, 276 F.3d 884, 898 (6th Cir. 2002).
we’d end up with a situation in every case where a drug According to the Sentencing Guidelines Manual, the first
dealer caught up with a big bag of dope, all he’s got to do step in establishing a sentencing range is to locate the
is say, “Well, I had bought this as my private stash, and applicable guideline section according to the offense of
I was going to use a gram a week for the next six years,” conviction, see U.S.S.G. § 1B1.2(a), and then set the offense
and it gets impossible to determine. level based on the defendant’s “relevant conduct.” See id.
§ 1B1.2(b). Here, the defendant was charged with possession
Ibid. The district court proceeded to adopt the presentence with intent to distribute a controlled substance under 21
report recommendation, calculated the appropriate guideline U.S.C. § 841(a), which required the sentencing court to refer
range on count one to be 21 to 27 months, and then sentenced to U.S.S.G. § 2D1.1 to obtain the base offense level. See id.
the defendant to 21 months of incarceration to run App. A. The crime of simple possession, which is defined by
consecutive to his mandatory-minimum sentence of 60 21 U.S.C. § 844(a), calls for the use of a different guideline
months on count two. Four years of supervised release are to section, U.S.S.G. § 2D2.1. Under Section 2D1.1, the base
follow after the defendant’s release from custody. offense level for a defendant whose crime does not involve
death or serious bodily injury resulting from the use of a
Judgment was entered on November 14, 2001, and the controlled substance is determined exclusively by the drug
defendant filed a timely appeal. Gill does not challenge in quantity table. See id. § 2D1.1(a)(3). The amount entered
this appeal his sixty-month sentence on the weapons count. into that table, however, is not limited to the quantity
involved in the defendant’s crime. The Guidelines Manual
II. directs that “[t]ypes and quantities of drugs not specified in
the count of conviction may be considered in determining the
The district court’s factual findings at a sentencing offense level. See § 1B1.3(a)(2) (Relevant Conduct).” Id.
proceeding are reviewed for clear error, and its application of § 2D1.1, comment. (n.12).
the Sentencing Guidelines to those facts is reviewed de novo.
United States v. Butler, 297 F.3d 505, 516 (6th Cir. 2002), In order to determine whether drug quantities possessed for
cert. denied ___ U.S. ___, 123 S. Ct. 2074 (2003). When personal use should be included in the tally when establishing
calculating the drug quantities attributable to a defendant as the base offense level for a distribution- or trafficking-type
relevant conduct under the Sentencing Guidelines, the district crime under Section 2D1.1, the sentencing court must follow
court’s findings must be supported by a preponderance of the the path laid out in the Guidelines Manual to the definition of
evidence. United States v. Copeland, 321 F.3d 582, 602 (6th “relevant conduct” found in Section 1B1.3. There, the
Cir. 2003). When the amount of drugs is uncertain, the Sentencing Commission states that the base offense level in
district court must “err on the side of caution” and hold the cases of this sort is determined “on the basis of . . . all acts
defendant accountable only for that amount that is more likely and omissions committed, aided, abetted, counseled,
than not attributable to the defendant. Ibid.; United States v. commanded, induced, procured, or willfully caused by the
Lopez, 309 F.3d 966, 972 (6th Cir. 2002), cert. denied, ___ defendant . . . that occurred during the commission of the
No. 01-6538 United States v. Gill 7 8 United States v. Gill No. 01-6538
offense of conviction, in preparation for that offense, or in the favor of the government. In fact, Thomas suggests the
course of attempting to avoid detection or responsibility for opposite conclusion. In that case, the defendant, who was
that offense.” Id. § 1B1.3(a)(1). In addition, “with respect to convicted of distribution and possession with intent to
offenses of a character for which § 3D1.2(d) would require distribute cocaine base, argued that 2.15 grams of 6.32 grams
grouping of multiple counts,” relevant conduct includes “all of cocaine base found when he was searched were for purely
acts and omissions . . . that were part of the same course of personal use. We held that the district court properly could
conduct or common scheme or plan as the offense of have rejected this inference, however, based on the testimony
conviction.” Id. § 1B1.3(a)(2). Offenses characterized by the of the government’s drug agent that no “mere user” would
grouping rule contained in Section 3D1.2 are those that have over two grams of cocaine base on his person under
“involv[e] substantially the same harm.” Id. § 3D1.2. those circumstances. Accordingly, we affirmed the sentence
Pursuing that definition further, we learn that multiple counts based on the full amount possessed by the defendant.
involve the “same harm” “[w]hen the offense level is Thomas, 49 F.3d at 259-60. As the defendant points out in
determined largely on the basis of . . . the quantity of a his brief in this case, if there were no legal distinction
substance involved.” Id. § 3D1.2(d). However, the between drugs possessed for personal consumption on one
Guidelines Manual lists the offenses that may be grouped hand, and trafficking, on the other, when the sentence is for a
under this subsection, and, with respect to drug offenses, distribution-type offense, then it would have been pointless
includes only those offenses covered by “§§ 2D1.1, 2D1.2, for the Thomas court even to have raised the issue of whether
2D1.5, 2D1.11, [and] 2D1.13.” Ibid. Simple possession of the proof of an intent to distribute the entire quantity was
a controlled substance, covered by Section 2D2.1, is not sufficient.
included in this list.
We believe that Page is inapplicable because of the
As noted above, the offense of conviction in this case is different considerations that arise when the defendant has
possession of a controlled substance with intent to distribute, been convicted of conspiracy to distribute drugs. As we
a crime separate and distinct from simple possession. The explained in that case, the key factor in determining the
defendant insists that it is axiomatic that drug quantities quantity of drugs for which an individual conspirator will be
possessed for personal use were not possessed for the purpose held accountable at sentencing is foreseeability. Page, 232
of later distribution and therefore could not have been part of F.3d at 541-42. Thus, adopting the reasoning of the First
the offense of conviction. The government counters that the Circuit in United States v. Innamorati, 996 F.2d 456, 492 (1st
defendant’s purpose for possessing some of the drugs does Cir. 1993), we held “that the drugs obtained by defendant
not matter, since, according to the government, we previously from his supplier for his personal use were properly included
held in United States v. Thomas, 49 F.3d 253 (6th Cir. 1995), by the district court in determining the quantity of drugs that
that personal use amounts should be counted in fashioning a the defendant knew were distributed by the conspiracy.”
sentence for possession with intent to distribute, and we Page, 232 F.3d at 542. In this case, the defendant was not
reached the same result in a drug conspiracy case in United charged with or convicted of conspiracy, nor was his
States v. Page, 232 F.3d 536 (6th Cir. 2000), cert. denied, 532 involvement in a conspiracy proved as part of the relevant
U.S. 1056 (2001). conduct. The record in this case presents the claim that the
defendant was involved in but two drug crimes: possession
We do not agree with the government’s reading of Thomas, with intent to distribute, for which he was charged, and
or the notion that it resolves the issue presented in this case in simple possession, which was uncharged criminal conduct.
No. 01-6538 United States v. Gill 9 10 United States v. Gill No. 01-6538
Uncharged conduct may be considered in calculating the conviction. Citing Section 2D1.1, the court first observed that
sentencing range under the Sentencing Guidelines only if the the base offense level for a drug offense is based entirely on
conduct is “relevant.” See United States v. Hill, 79 F.3d the quantity of drugs, and that the government has the burden
1477, 1481 (6th Cir.), cert. denied, 519 U.S. 858 (1996). to prove this amount by a preponderance of the evidence, as
Returning to the Sentencing Guidelines Manual’s language – we likewise have held. See United States v. Owusu, 199 F.3d
which we hesitate to describe as “plain,” although it is 329, 344 (6th Cir. 2000). Then, referring to Section
unequivocal – the defendant’s possession of drugs for 1B1.3(a)(2), the court declared that “[d]rugs possessed for
personal use cannot be considered an “act[] . . . that occurred mere personal use are not relevant to the crime of possession
during the commission of the offense of conviction, in with intent to distribute because they are not ‘part of the same
preparation for that offense, or in the course of attempting to course of conduct’ or ‘common scheme’ as drugs intended for
avoid detection or responsibility for that offense” under distribution.” Kipp, 10 F.3d at 1465-66. The court concluded
Section 1B1.3(a)(1), since the offense of conviction required that sentencing courts calculating a base offense level using
an intent to distribute to accompany the act of drug possession Section 2D1.1(c) “must make a factual finding as to the
under 21 U.S.C. § 841(a). See United States v. Bennett, 291 quantity of drugs possessed for distribution and cannot
F.3d 888, 895 (6th Cir. 2002). Possessing drugs for personal include any amount possessed strictly for personal use.” Id.use was not part of or connected to the commission of, at 1466.
preparation for, or concealment of the distribution-type
offense. Simple possession is not “relevant” under Section Although the Ninth Circuit relied on a subsection of the
1B1.3(a)(2), as “part of the same course of conduct or relevant conduct provision that we find inapplicable, we
common scheme or plan,” because that section applies only nonetheless agree with the alternate ground put forth for
if the two offenses can be grouped under Section 3D1.2(d). excluding personal use drugs from the total in such cases:
See Hill, 79 F.3d at 1482. Simple possession is not one of the
crimes listed in this grouping rule that triggers the application [F]ailure to distinguish the amount possessed for
of that relevant conduct section. personal use from the amount possessed for distribution
contravenes a fundamental principle of the Sentencing
We hold, therefore, that simple possession of illegal drugs Guidelines – proportionality in sentencing – because it
for personal use is not conduct that is “relevant” to the charge would result in sentencing a drug user who possessed 50
of possession with intent to distribute a controlled substance grams for personal use and gave one gram away more
for the purpose of determining a sentence range under the harshly than a drug dealer who possessed 49 grams for
Sentencing Guidelines. Amounts possessed for personal distribution.
consumption should not be included when calculating the
amount of drugs to enter into the drug quantity table in Ibid. See also United States v. Rodriguez-Sanchez, 23 F.3d
U.S.S.G. § 2D1.1(c). 1488, 1496 (9th Cir. 1994) (noting that “§ 841(a)(1) does not
criminalize mere possession of drugs, only possession with
Other circuits have reached the same conclusion, albeit by intent to distribute. . . . Other statutes deal with the crime of
different reasoning. In United States v. Kipp, 10 F.3d 1463 possession. See 21 U.S.C. § 844.”).
(9th Cir. 1993), the Ninth Circuit sustained a defendant’s
objection to the inclusion of drugs intended purely for Our holding follows more closely the decision of the
personal use in the relevant conduct for his distribution Seventh Circuit in United States v. Wyss, 147 F.3d 631 (7th
No. 01-6538 United States v. Gill 11 12 United States v. Gill No. 01-6538
Cir. 1998). There, the court vacated the defendant’s sentence distribute on only that single date. He maintains that his
for possession with intent to distribute marijuana because the acquisition of cocaine over the previous five weeks, from
trial court may have included cocaine possessed for personal which he sold a portion, according to his statement, cannot be
consumption in its guideline calculation. The Wyss court also counted in the total drug quantity for the purpose of U.S.S.G.
made reference to Section 1B1.3(a)(2), noting that under the § 2D1.1(c). This argument must be rejected. Certain
Sentencing Guidelines, an uncharged drug offense is not uncharged conduct may be considered as “relevant conduct”
relevant unless it is part of the same course of conduct or under the Sentencing Guidelines. Hough, 276 F.3d at 898;
common plan as the offense of conviction. “It can only be United States v. Silverman, 889 F.2d 1531, 1538-39 (6th Cir.
that if it is part of the same group of offenses for sentencing 1989), cert. denied, 507 U.S. 990 (1993) (holding that
purposes.” Id. at 632. Referring to the grouping rule, Section “conduct that is not formally charged or is not an element of
3D1.2(d), the court observed that “[p]ossession of illegal the offense of conviction may enter into the determination of
drugs for personal use cannot be grouped with other the applicable Guideline sentencing range”). We previously
offenses.” Ibid. have observed that separate incidents of possession with
intent to distribute can be included within the scope of
The Eighth and Second Circuits have adopted similar relevant conduct for the purpose of determining drug quantity
positions. See United States v. Fraser, 243 F.3d 473, 476 when they qualify as part of a “common scheme or plan” or
(8th Cir. 2001) (adopting the reasoning of both Kipp and constitute the “same course of conduct” under U.S.S.G.
Wyss, and holding that when calculating the base offense § 1B1.3. See Hill, 79 F.3d at 1481-85 (finding that a discrete
level of § 2D1.1 of the Guidelines, “drug quantities intended incident of possession separated in time by over one year
for personal use must be excluded”); United States v. from the offense of conviction could not be part of a common
Williams, 247 F.3d 353 (2d Cir. 2001) (following Kipp and scheme or course of conduct). To find that separate events
Wyss). The Eleventh Circuit specifically rejected Kipp in are related in this fashion, the Guidelines Manual requires
United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996), but courts to balance three factors: “the degree of similarity of the
we agree with other courts that have found the facts in offenses, the regularity (repetitions) of the offenses, and the
Antonietti to be distinguishable, primarily because the time interval between the offenses.” Id. at 1482 (quoting
defendant in that case was convicted of both possession with U.S.S.G. § 1B1.3, comment. (n.9(B))). We believe that the
intent to distribute and conspiracy to distribute. See Williams, sentencing court could conclude that Gill’s serial practice of
247 F.3d at 357-58. We, therefore, do not view the Eleventh acquiring a quantity of cocaine to sell each week for five
Circuit decision as convincing precedent and we join the other weeks could constitute “part of a single episode, spree, or
circuits that have refused to follow it. See Fraser, 243 F.3d ongoing series of offenses.” U.S.S.G. § 1B1.3, comment.
at 475 n.4 (noting that the conviction for conspiracy to (n.9(B)). The portion of cocaine found to be obtained for
distribute “may have been the real rationale” for the Eleventh later distribution, therefore, properly is included in the
Circuit’s decision); Wyss, 147 F.3d at 632 (stating that quantity for which the defendant should be accountable under
Antonietti, in rejecting Kipp, “overlooked” the distinction Section 2D1.1(c).
between conspiracy and possession with intent to distribute).
The sentencing court in this case included cocaine that the
Gill also contends that the relevant conduct inquiry must be defendant possessed for personal use in the total drug quantity
confined to his activity that took place on December 20, 2000, when it arrived at a base offense level of 14 under U.S.S.G.
because he was charged with possession with intent to § 2D1.1(c)(13). This was error. However, the government
No. 01-6538 United States v. Gill 13 14 United States v. Gill No. 01-6538
insists that the district court’s error was harmless because the The defendant asserted in his statement that he used about
sentence of 21 months is admittedly within both of the two grams of the eight grams of cocaine that he had
competing guideline ranges in this case. Harmless error is not purchased most recently. Analysis showed that 6.8 grams
an inevitable conclusion under these circumstances. Rather, remained of that eight grams. Given that approximately one-
in determining whether a remand is required, “a court of half of the week had passed, and that 1.2 grams thus can be
appeals must decide whether the district court would have assumed to be the defendant’s average usage for that period,
imposed the same sentence had it not relied upon the invalid that would result in a minimum discount, over five weeks, of
factor or factors.” Williams v. United States, 503 U.S. 193, 1.2 times two, times five weeks, or twelve grams. Because
203 (1992); United States v. Reed, 264 F.3d 640, 652 (6th Cir. 35.4375 grams minus twelve grams results in 23.4375 grams,
2001), cert. denied, 535 U.S. 962 (2002). A sentence falling crediting the defendant’s unrebutted testimony would result
within both guideline ranges is, to be sure, a factor to be in a 15-to-21-month sentencing range.
considered, but it does not compel a finding of harmless error.
See United States v. Vandeberg, 201 F.3d 805, 812 (6th Cir. We agree with the Tenth Circuit that the defendant bears
2000) (holding that erroneous sentencing enhancement was the burden of production with respect to his personal use of
not harmless because it altered the applicable guideline range the drug in question. See United States v. Asch, 207 F.3d
from 140-175 months to 120-150 months, and the defendant 1238, 1246 (10th Cir. 2000). “Evidence, including personal
had been sentenced to a 140-month term of incarceration). It testimony, of actual consumption of specific quantities would
would be a different matter if the sentence either way is be probative of such an intent.” Ibid. See also Wyss, 147
subject to the same guideline range, of course. See United F.3d at 633 (noting that the defendant has “some burden of
States v. Charles, 138 F.3d 257, 268 (6th Cir. 1998). When producing evidence concerning the amount that he consumed
the district court sentences a defendant to the low end of the – he cannot just say to the government, ‘I’m an addict, so
guideline range, however, the appellate court can reasonably prove how much of the cocaine that I bought I kept for my
infer that the defendant might have received a lower sentence own use rather than to resell.’”). The ultimate burden of
if the guideline range itself had been lower. persuasion, however, rests upon the government. Asch, 207
F.3d at 1246.
In order to demonstrate that the trial court’s error was not
harmless, the defendant must show that the trial court could The defendant has met his burden, and the evidence of
have found, by a preponderance of evidence, that a different personal use has not been rebutted by the government. Of
guideline range was appropriate. Ibid. Here, the Guidelines course, the sentencing court is not obliged to accept the
provide a base level of 14 for possession of 25 grams or more defendant’s statement; the determination of the credibility of
of cocaine, and a base level of 12 for possession of less than the evidence offered at a sentencing hearing is the
25 grams of cocaine. See U.S.S.G. § 2D1.1(c)(13), (14). responsibility of the district court. Nonetheless, because the
When the base offense level is reduced by two levels for lower court did not properly apply the relevant Sentencing
acceptance of responsibility, the question is whether, under Guidelines provisions, the case must be remanded for
the facts in the present record, the sentencing range could be resentencing on the present record, since “[t]he government
moved from a net level 12, which yields a 21-to-27-month was entitled to only one opportunity to present evidence on
sentence range (given the defendant’s criminal history this issue.” Wyss, 147 F.3d at 633.
category of IV), to a net level 10, and its 15-to-21-month
sentencing range.
No. 01-6538 United States v. Gill 15
III.
The defendant’s sentence of 21 months on count one of the
indictment charging possession of cocaine with intent to
distribute, contrary to 21 U.S.C. § 841(a)(1), is VACATED,
and the matter is REMANDED to the district court for
resentencing in accordance with this opinion. The
defendant’s consecutive sentence of 60 months on count two,
for knowingly possessing a firearm in furtherance of a drug
trafficking crime, contrary to 18 U.S.C. § 924(c), remains
intact.