270 Acquitted, Dismissed, Uncharged Conduct | Welcome to Federal Sentencing Cases

200 – Offense Conduct, Generally (Chapter 2)

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§270 Drug Relevant Conduct: Acquitted, Dismissed, Uncharged Conduct

4th Circuit finds “ice” was foreseeable to meth defendants. (251)(254)(270) At defendant’s sentencing for conspiracy to distribute methamphetamine, the district court found that certain quantities of “ice” were foreseeable for each defendant. Defendants argued that it was not foreseeable that they would distribute “ice,” as opposed to regular methamphetamine. The Fourth Circuit affirmed, holding that although the 80% threshold for “ice” may be proven by lab results, the district court had “latitude” to use DEA reports, statements from coconspirators, and the testimony of experts about what was trafficked in the region. U.S. v. Williams, __ F.4th __ (4th Cir. Nov. 23, 2021) No. 20-4002.

2d Circuit reverses attributing codefendant’s drugs where defendant was acquitted of conspiracy. (254) (270) At defendant’s sentencing for drug trafficking, the district court held defendant accountable for drugs that belonged to a coconspirator even though defendant had been acquitted of conspiracy. The district court found by a preponderance that defendant could foresee that the coconspirator would possess the drugs that were found after defendant’s arrest. The Second Circuit reversed, ruling that the district court clearly erred in relying on drugs found after defendant’s arrest to conclude that defendant conspired with the coconspirator. U.S. v. Willis, __ F.4th __ (2d Cir. Sept. 20, 2021) No. 18-3617.

5th Circuit says money at defendant’s house showed his knowledge of drugs sold. (270) At defendant’s sentencing for drug trafficking, the district court attributed all of the currency found in defendant’s house to defendant’s drug trafficking and converted it to drugs for the purpose of setting defendant’s offense level. The district court found that the currency was a reasonably foreseeable product of coconspirators’ drug dealing. The Fifth Circuit agreed that testimony at trial showed that coconspirators sold drugs from the house and that these sales were reasonably foreseeable to defendant. U.S. v. Johnson, __ F.4th __ (5th Cir. Sept. 16, 2021) No. 20-11046.

2d Circuit reverses drug quantity finding where detective could not have discovered drugs. (254)(270) Defendant was convicted of drug and firearm offenses. At sentencing, the district court attributed to defendant quantities for counts of which he had been acquitted. The Second Circuit reversed, noting that the detective who said he found the drugs could not have been there when the drugs were found. U.S. v. Willis, __ F.3d __ (2d Cir. July 16, 2021) No. 18-3617.

11th Circuit finds sufficient evidence that defendant knew contents of package in dismissed count. (254) (270) Defendant received two packages containing an analogue of fentanyl from Hong Kong. The government initially charged both packages, but dismissed the charge based on the first package before trial. At sentencing the district court treated the contents of the first package as relevant conduct, and based the offense level on the contents of both packages. The Eleventh Circuit affirmed, noting that defendant said that he ordered the substance to address back pain and had been taking hydrocodone before. He did not speak with his physician about the substance, and the second package clearly contained an illegal substance. U.S. v. Delgado, __ F.3d __ (11th Cir. Nov. 23, 2020) No. 19-11997.

5th Circuit upholds reliance on PSR’s account of defendant’s admissions to drug sales. (254)(270) Arrested in possession of 25 grams of methamphetamine, defendant said he had been distributing methamphetamine for the past 27 weeks and that he distributed about a pound a week. The presentence report recounted this admission and the district court held defendant responsible for more than 12 kilograms of actual methamphetamine. The Fifth Circuit held that the pound a week that the district court attributed to defendant was relevant conduct to his offense and that the district court did not commit clear error by relying on the PSR’s account of defendant’s post-arrest statement. U.S. v. Barfield, __ F.3d __ (5th Cir. Oct. 25, 2019) No. 18-50399.

8th Circuit says trial evidence supported using acquitted conduct to set offense level. (270) Defendant was convicted of conspiracy to distribute methamphetamine but was acquitted of distribution of methamphetamine. The district court set defendant’s offense level based on methamphetamine from the distribution charge on which defendant was acquitted. The Eighth Circuit found that ample evidence from defendant’s trial supported the use of acquitted conduct and the district court did not clearly err in using that amount. U.S. v. Ruelas-Carbajal, __ F.3d __ (8th Cir. Aug. 9, 2019) No. 18-2454.

D.C. Circuit says guideline choice can be based on acquitted conduct. (170)(270) Defendant, a postal employee, participated in a scheme to deliver packages containing drugs to other members of the conspiracy. Defendant was charged with drug offenses and bribery. At trial, defendant claimed she was unaware of the packages’ contents, and a jury acquitted her of drug-trafficking but convicted her of bribery. At sentencing, the district court found that defendant knew what was in the packages because she was in a relationship with another conspirator. Accordingly, the court found that the drug guideline, § 2D1.1, was the applicable guideline, even though it resulted in a ten-level increase in offense level over the bribery guideline, § 2C1.1. The D.C. Circuit affirmed, holding that the district court had authority to rely on acquitted conduct to find the applicable guideline. U.S. v. Norman, __ F.3d __ (D.C. Cir. June 11, 2019) No. 17-3070.

D.C. Circuit says uncharged drugs can be relevant conduct for offense level. (270) In calculating defendant’s offense level for drug-trafficking offenses, the district court used a ten-kilogram heroin deal for which defendant was not charged. The D.C. Circuit rejected defendant’s Fifth and Sixth Amendment claims, and held that a district court may consider uncharged conduct proved by a preponderance of the evidence as long as the sentence does not exceed the statutory maximum. U.S. v. Bagcho, __ F.3d __ (D.C. Cir. May 14, 2019) No. 12-3042.

4th Circuit affirms using trial testimony to set drug quantities, despite acquittal. (254)(270) Defendant was charged with four counts of methamphetamine trafficking and firearms possession. At trial, the jury acquitted him of conspiracy to traffic in methamphetamine but found him guilty of distributing more than 50 grams of methamphetamine. At sentencing, the district court determined the quantity of methamphetamine based on trial testimony given by defendant’s alleged co-conspirators. The district court found this evidence “convincing.” The Fourth Circuit upheld the district court’s reliance on the conspirators’ testimony, finding that the district court was not required to provide a greater explanation of its reasons for relying on the testimony, despite defendant’s acquittal. U.S. v. Davis, __ F.3d __ (4th Cir. Mar. 19, 2019) No. 18-4095.

8th Circuit finds that cocaine base is not relevant conduct for heroin distribution conspiracy. (254)(270) Defendant’s plea agreement stated that he conspired to distribute heroin. At defendant’s sentencing for conspiracy to distribute drugs, the district court included 17.5 grams of cocaine base that a customer said he had seen defendant possess when defendant sold the customer heroin. The Eighth Circuit reversed, finding that it was clear error to include the cocaine base because the possession of cocaine was not relevant conduct for defendant’s sale of heroin. The court held that the government failed to prove a meaningful relationship between the cocaine base and the heroin or any distribution of the cocaine base. U.S. v. Harris, __ F.3d __ (8th Cir. Nov. 19, 2018) No. 17-3341.

7th Circuit relies on defendant’s post-arrest statement to determine drug quantity. (270)(770) Defendant pled guilty to distributing heroin. During a post-arrest interview, defendant gave federal agents significant details about his relationship with the heroin operation run by Blackman. He also talked about his own heroin suppliers and described more extensive trafficking activities. The sentencing court relied on his post-arrest statement to conclude that he had distributed 427.1 grams of heroin to Blackman and an additional 30 kilograms to other customers. The Seventh Circuit found no abuse of discretion. Self-incriminating statements “have long been considered reliable enough for use at trial …, so we cannot say that they are too unreliable for use at sentencing.” The panel rejected defendant’s suggestion that the statement was not sufficiently corroborated. The drug quantity he attributed to himself would have resulted in a profit of several hundred thousand dollars. There were many potentially tainted assets: vehicles, property, and a $6,000 diamond-studded watch. In addition, defendant supported 12 children and his parents. U.S. v. Tankson, 836 F.3d 873 (7th Cir. 2016).

7th Circuit agrees that additional heroin transactions were relevant conduct. (270)(770) Defendant pled guilty to distributing heroin. During a post-arrest interview, he told federal agents about his relationship with the heroin operation run by Blackman. He also talked about his own heroin suppliers and described more extensive trafficking activities. The PSR relied on the post-arrest statement to conclude that defendant had distributed 427.1 grams of heroin to Blackman and an additional 30 kilograms in other transactions. The Seventh Circuit upheld the district court’s finding that the additional 30 kilograms constituted relevant conduct to his sales to Blackman. These transactions involved the same drug during the same timeframe, with a common accomplice, a common modus operandi, and a common purpose of a large-quantity, high-turnover trafficking operation. It was not clear error for the court to conclude that defendant had engaged in a continuous pattern of reselling drugs that he had acquired from the second supplier to individuals including Blackman. U.S. v. Tankson, 836 F.3d 873 (7th Cir. 2016).

1st Circuit rules defendant waived challenge to drug quantity calculation. (270)(855) Defendant pled guilty to multiple drug and firearms charges. The district court found, consistent with the PSR’s drug quantity calculation, that defendant was responsible for distributing or possessing with intent to distribute 1,220.1 grams of cocaine. Defendant argued on appeal that it was error to attribute to him drug quantities involved in transactions with co-conspirator Paul amounting to 850.5 grams, because the underlying transactions preceded the offenses of conviction by about two years and involved large, distribution-level amounts of cocaine rather than the small, personal-level amounts of cocaine in the offenses of conviction. He also argued that Paul’s drug quantity testimony was too unreliable to credit as a general matter. However, at oral argument defendant conceded that the court’s drug quantity and base offense level findings were adequately supported, and clarified that his objection to Paul’s testimony was to contest the district court’s criminal history calculation, not its drug quantity and offense level calculations. Accordingly, the First Circuit ruled that defendant waived any challenge to the drug quantity and offense level findings. U.S. v. Magee, 834 F.3d 30 (1st Cir. 2016).

7th Circuit says uncharged distribution was relevant conduct. (270) Defendant pled guilty to distributing a controlled substance, based on his sale of 366.2 grams of crack cocaine to a confidential witness. He challenged on appeal the district court’s finding that the uncharged distribution of 3,000 grams of crack cocaine to Brewer, one of his long-time customers, was relevant conduct. The Seventh Circuit found no error. Throughout 2012 and until his arrest in 2013, defendant engaged in significant, continuous drug dealing to multiple customers, and the sales to Brewer fit within that course of dealing. Defendant conceded that amounts underlying 15 other counts in a superseding indictment constituted relevant conduct. The district court found that the drug dealing between Brewer and defendant overlapped with and constituted part of the same common plan or course of dealing as the stipulated transactions. The sales to Brewer involved the same distributor, one of the three drugs that defendant distributed to others, similar regularity of dealing, took place in the same neighborhood of Chicago, and in some instances, at the same stash house. It was proper to treat the transactions with Brewer as relevant conduct. U.S. v. Blackman, __ F.3d __ (7th Cir. July 29, 2016) No. 15-2003.

11th Circuit holds doctor in “pill mill” accountable for all drugs he prescribed. (252)(270) Defendant, a doctor, was convicted of conspiracy to dispense controlled substances and related charges based on his involvement in a pill-mill scheme operated out of the East Health Center. Based on the drug amounts prescribed by defendant in East Health Center’s records, the district court held defendant accountable for all of the hydrocodone, oxycodone, and Xanax that he personally prescribed while he was at the Center. The Eleventh Circuit upheld this drug quantity determination. Defendant’s argument that there was no “reliable evidence as to what portion of the relevant prescriptions were legitimately used to treat pain” was not supported by the record. The trial evidence showed that East Health Center was a pill mill that did not serve a legitimate medical purpose. It was a cash-based pill mill for pill-seeking addicts, mostly from out-of-state. Abundant evidence showed that defendant was aware of its illegitimacy. The fact that he reduced some patients’ prescriptions did not establish that he was treating those patients for medical purposes. Rather, his statements suggested that he reduced the prescriptions to protect himself from legal scrutiny. U.S. v. Azmat, 805 F.3d 1018 (11th Cir. 2015).

7th Circuit relies on co-conspirator’s testimony to find defendant responsible for 10 kilos of heroin. (270)(770) Defendant was the leader of a street-level drug-trafficking operation. Relying on co-conspirator testimony, video records, and evidence of defendant’s violent behavior toward rival drug sellers, the district court determined that defendant controlled drug sales at the intersection of Kedzie Avenue and Ohio Street for much of 2008 and 2009. Based on this, the court found that defendant was responsible for all drugs sold by his co-conspirators during that time, i.e., more than 10 kilograms of heroin. On appeal, defendant argued that the testimony of Scott, one of his co-conspirators, was too untrustworthy to be credited. The Seventh Circuit found that defendant mischaracterized Scott’s statements, and his testimony about the division of profits was not mathematically impossible. Moreover, the judge made a narrow credibility determination that Scott was credible in his testimony about overall sales. The judge’s quantity estimates were quite conservative and not clearly erroneous. U.S. v. Austin, __ F.3d __ (7th Cir. Nov. 20, 2015) No. 14-3135.

1st Circuit relies on CI’s information in PSR to support drug quantity. (270)(770) Defendant was a heroin dealer who was caught with 26.4 grams of heroin. His PSR contained information from a confidential informant (CI), who purportedly had accompanied defendant on his buying trips and had been with defendant on several occasions as he sold drugs. No law enforcement or other witness saw those sales. The CI did not testify, and so defendant never had an opportunity to cross-examine her. The First Circuit held that the court did not clearly err in relying on this information to attribute additional drugs to defendant. There was no clear error in the court’s finding that between 40 and 60 grams of heroin were involved, which supported a sentence of 75-months on the drug count. Moreover, defendant received a concurrent sentence of 75 months on the firearm charge, and would serve 75 months regardless of the method used by the government to get an increased sentence on the drug charge. U.S. v. McDonald, 804 F.3d 497 (1st Cir. 2015).

7th Circuit upholds finding that additional 100 grams of heroin was relevant conduct. (270) A jury convicted defendant of buying and selling about 33 grams of heroin but acquitted him of participating in a conspiracy. At sentencing, the district court attributed 100 grams of heroin to defendant as relevant conduct. The Seventh Circuit ruled that the district court did not clearly err when it found defendant responsible for 100 grams of heroin. The district court based its 100-gram drug quantity finding on defendant’s admission at trial that he bought that amount from supplier Harrington. It was not clear error for the district court to find that the 100 grams of heroin defendant admitted he purchased from Harrington was relevant conduct to the offenses of conviction. The court heard evidence demonstrating that defendant’s drug trafficking conduct was part of a single business and scheme. The 100 grams of heroin involved the same supplier, the same drug, the same purchasers, and the same continuous period of time as the conduct of conviction. U.S. v. Burnett, __ F.3d __ (7th Cir. Oct. 13, 2015) No. 13-2882.

D.C. Circuit upholds consideration of drugs involved in acquitted conspiracy. (270) Defendants were members of a loose-knit gang that sold crack cocaine in a neighborhood of Washington, D.C. for 13 years. They were convicted various counts of distributing crack, but acquitted of a variety of other charges, including all conspiracy charges. The district court attributed 1.5 kilograms of crack from the acquitted conspiracy to each of the defendants as relevant conduct, a finding the court made by a preponderance of the evidence. The D.C. Circuit rejected defendants’ claims that the court violated defendants’ 6th Amendment rights by increasing their imprisonment based on facts not found by a jury beyond a reasonable doubt. Defendants’ sentences fell within the statutory range, rendering their constitutional argument unconvincing. The crack distributed during the acquitted conspiracy constituted relevant conduct, even though defendants’ convictions were for “street-level drug dealing.” The district court found that defendants’ crack distribution offenses were part of a “common scheme” with the other gang members. U.S. v. Bell, __ F.3d __ (D.C. Cir. July 28, 2015) No. 08-3037.

7th Circuit finds uncharged heroin trafficking was relevant conduct. (270) Defendant pled guilty to heroin conspiracy charges based on conduct that occurred from 2007 through 2008. He argued that the court improperly attributed to him significant quantities of heroin he was involved in trafficking from 2004 to 2006. For the first time on appeal, he contended that the uncharged offenses from 2004 through 2006 were too remote in time and too dissimilar from the charged conspiracy to be considered relevant conduct. The Seventh Circuit held that the district court did not commit plain error in its relevant conduct finding. The temporal gap argument was “hollow.” The district court believed co-conspirator testimony that defendant received kilogram quantities of heroin on a regular basis from at least 2005 to mid-2008. Moreover, the offenses were connected by multiple common factors: the same principal (defendant), drug courier/accomplice, location (in and around the west side of Chicago), stash houses, delivery points, delivery vehicles, and the same drug supplier from 2005 through mid-2008. These common factors rendered defendant’s uncharged offenses similar enough to the offense of conviction to show that he was engaging in an ongoing pattern of conduct. U.S. v. Baines, __ F.3d __ (7th Cir. Feb. 9, 2015) No. 13-3284.

Supreme Court says acquitted conduct may be relied on in sentencing. (270) Reversing the Ninth Circuit’s decisions in U.S. v. Watts, 67 F.3d 790 (9th Cir. 1995), and U.S. v. Putra, 78 F.3d 1386 (9th Cir. 1996), and overruling the Ninth Circuit’s decision in U.S. v. Brady, 928 F.2d 844, 851 (9th Cir. 1991), the Supreme Court held that sentencing courts may consider conduct underlying charges for which the defendant has been acquitted. In a per curiam opinion, the court noted that 18 U.S.C. § 3661 codifies the long-standing principle that sentencing courts have broad discretion to consider various kinds of information. The court noted that contrary to the Ninth Circuit’s assertion in Brady, the jury cannot be said to have “necessarily rejected” any facts when it returns a general verdict of not guilty. Justice Stevens dissented on the merits, and Justice Kennedy dissented from the court’s decision to summarily reverse the Ninth Circuit without full briefing and argument. U.S. v. Watts, 519 U.S. 148, 117 S.Ct. 633 (1997).

Justice White would grant certiorari on acceptance of responsibility, preponderance of evidence and plea bargain issues. (270) Although the 5th Circuit remanded this case for resentencing, U.S. v. Kinder, 946 F.2d 362 (5th Cir. 1991), the defendant sought review by the Supreme Court, challenging (1) the burden of proof at sentencing, (2) district court’s reliance on conduct made the basis of counts dismissed pursuant to a plea bargain, and (3) the Fifth Amendment implications of the acceptance of responsibility guideline. Justice White dissented from the denial of certiorari, collecting the conflicting cases, and arguing that the court should resolve the conflicts among the circuits on each of these issues. Kinder v. U.S., 504 U.S. 946, 112 S.Ct. 2290 (1992) (White, J., dissenting from denial of certiorari).

1st Circuit upholds reliance on uncharged drug sales based on information from drug users. (270) The district court found defendant responsible for 280 grams of cocaine base. He argued that he could not be held responsible for more than the 6.9 grams he sold an undercover agent, and that the court’s drug quantity finding was based on uncorroborated and unreliable testimony from drug users. The First Circuit found no error. The court considered defendant’s PSR and live testimony from six witnesses, each of whom was subject to cross-examination. The PSR detailed transactions amounting to 33.8 grams of cocaine base. In addition, it noted that defendant partnered with another individual known as “New York” to sell crack from at least three crack houses in Portland. At some point, defendant took over the operations himself, during which time he had at least four people working for him. Based on information from cooperating witnesses, the probation department determined defendant was responsible for at least 144 grams of crack from a single crack house over one three-month period. The judge found that 280 grams was a “very conservative” number. Using the minimum sales and drug weights testified to yielded more than 1,000 grams sold from that one crack house over the course of nine months, a number far in excess of 280 grams. U.S. v. Doe, 741 F.3d 217 (1st Cir. 2013).

1st Circuit approves drug quantity estimate based on information from confidential informants. (270) Based on tips from three confidential informants (CIs), defendant was arrested as he returned to the US from Canada, hiding 109 oxycodone pills in his rectum. At sentencing, the district court assigned him a drug quantity equivalent to 2,637 80-milligram oxycodone pills based in part on uncharged conduct described by the CIs. The court had previously denied his motion to force the government to disclose the CI’s names. Defendant argued that because the court did not compel the government to disclose the CI’s names, it did not get to see for itself how unreliable they were for relevant-conduct calculation. He argued that the amount of oxycodone attributed to him should have been limited to what was in his possession at his arrest. The First Circuit found no abuse of discretion in attributing the additional drugs to defendant as relevant conduct without disclosure of the CI’s identities. The CIs’ statements regarding defendant’s modus operandi were detailed, mutually corroborative on key points, and compatible with the events surrounding his arrest, and were therefore sufficiently reliable. U.S. v. Mills, 710 F.3d 5 (1st Cir. 2013).

1st Circuit reverses where recorded conversations did not show second 152-gram crack transaction. (770) Defendant pled guilty to crack cocaine distribution. Based on recorded conversations between defendant and a confidential informant, the PSR concluded that defendant had acquired at least 152 grams of crack for distribution. The government argued that the recorded statements actually showed that defendant had purchased at least two distinct 152-gram supplies of crack. The district court so found, and attributed 304 grams to defendant. The First Circuit reversed, agreeing with defendant that the recordings did not establish a second 152-gram sale. The broken and garbled exchange in the recording was not a reliable estimate of weekly sales, and did not appear to be an admission by defendant that his weekly sales were 152 grams. The district judge was entitled on this record to treat defendant as a more serious offender than one who only distributed 152 grams, by either sentencing him at the high-end of his guideline range, or varying upward from it. But this must be an exercise of judgment rather than as part of a drug-quantity formula. U.S. v. Marquez, 699 F.3d 556 (1st Cir. 2012).

1st Circuit says high degree of similarity made previous drug sale relevant conduct. (270) In August 2006, defendant sold 0.7 grams of crack cocaine to an undercover officer. In November 2006, defendant made another sale of crack to the same undercover officer. Defendant was convicted of the second sale. The First Circuit held that the district court did not clearly err in ruling that the uncharged August crack sale was relevant conduct. The two transactions possessed “distinctive similarities” with one another, such as occurring in roughly the same location, involving roughly the same quantity of crack, and involving a similar pattern of conduct between defendant and the undercover officer. The mere fact that defendant engaged in a prior uncharged drug sale was not by itself sufficient to support the district court’s relevant conduct finding. The key here was the high degree of similarity between the two transactions and defendant’s familiarity with both the officer and the officer’s drug request during the second sale. U.S. v. Bryant, 571 F.3d 147 (1st Cir. 2009).

1st Circuit says prior drug trafficking was relevant conduct or “safety valve” was improper. (270) Defendant pled guilty to conspiring to transport cocaine in two separate criminal cases. One case involved 20 kilos of sham cocaine that defendant received from a cooperating agent. The other case arose from 30 kilos of cocaine that defendant and his crew placed on an airplane bound for New York. He pled guilty and was sentenced first for his role in the sham cocaine smuggling scheme. At the second proceeding, the court declined to consider the sham cocaine as relevant conduct in calculating the total quantity of drugs, and found that he was eligible for the “safety valve” in §5C1.2 as a first offender. The First Circuit reversed, noting that unless the prior sham cocaine offense were included as relevant conduct in the second offense, his prior conviction would count as more than one criminal history point; making him ineligible for the “safety valve.” U.S. v. Jaca-Nazario, 521 F.3d 50 (1st Cir. 2008).

1st Circuit holds that proffers from co-conspirators supported drug quantity attribution. (270) By means of his guilty plea, defendant admitted to specific transactions involving 44.53 grams of heroin, 71.9 grams of cocaine base, and 27.8 grams of powder cocaine, representing the sum total of drugs involved in six transactions. He challenged the district court’s finding that he was responsible for additional drug quantities, including 200 grams of heroin, 800 grams of crack, and 800 trams of powder cocaine. The First Circuit held that the district court properly relied on proffers from co-conspirators to support the additional drug quantities. One co-conspirator placed defendant at the head of the drug distribution network, and stated that defendant took delivery of 200-250 grams of powder cocaine and 50-100 grams of heroin weekly. He also confirmed that the ring converted about half of the powdered cocaine into crack. Two other co-conspirators had worked for defendant, and they described their duties and alluded to the significant amounts of drugs involved. The proffers of the three conspirators were consistent and mutually reinforcing, and were reinforced by contraband seized during the search of the stash house. U.S. v. Ventura, 353 F.3d 84 (1st Cir. 2003).

1st Circuit holds defendant accountable for unwanted cocaine delivered to him. (270) Defendant was involved in a conspiracy to distribute marijuana. During the conspiracy, a co-conspirator sent defendant a package containing one kilogram of cocaine. Defendant had not been told in advance that cocaine was being sent. According to defendant, the cocaine was unwanted because he had previously been treated for a cocaine addiction, and feared its proximity would lead to a relapse. Although defendant told his conspirators that he was withdrawing from the marijuana conspiracy, the kilogram of cocaine was divided into smaller quantities, and given to the other conspirators. Although defendant initially retained seven ounces for himself, he later gave the cocaine to another conspirator. Defendant established terms of payment for the cocaine. The First Circuit held that the district court properly held defendant accountable for the kilogram of cocaine based on his joint and constructive possession of the cocaine. Defendant was present when his co-conspirators divided the kilogram into smaller amounts for further distribution, and even had seven ounces in his own possession for a period of time. Moreover, the delivery of the cocaine alone would have sufficed to render it relevant conduct to defendant. U.S. v. May, 343 F.3d 1 (1st Cir. 2003).

1st Circuit holds that transaction was relevant conduct even though defendant acted as buyer’s agent. (270) During a several month period, defendant was involved in at least 12 crack sales to undercover federal agents. His role differed from sale to sale; in some cases he was the primary seller, in other cases he merely provided assistance by introducing the agents to other sellers or by acting as an intermediary. Defendant introduced one agent to Rodriguez, a seller with whom defendant was previously allied, and was present when Rodriguez sold 11.6 grams of crack to the agent. During the transaction, defendant translated price and quantity terms from Spanish to English and from English to Spanish. Defendant argued that this transaction did not constitute relevant conduct because during the sale, he intended solely to help the buyer, a federal agent, rather than the seller. It was undisputed that he sought to introduce the agent to sellers other than Rodriguez, which was against Rodriguez’s interest. The First Circuit held that the transaction was relevant conduct regardless of whether defendant was acting as an agent of the buyer or the seller. There was no question that defendant aided or abetted the transaction. Regardless of whether he was acting to help the buyer or the seller, he facilitated the transfer of the drug, and that was sufficient to expose him to liability for sentencing purposes. U.S. v. Castro, 279 F.3d 30 (1st Cir. 2002).

1st Circuit holds that use of acquitted drugs as relevant conduct did not violate Apprendi. (270) A jury convicted defendant of various drug charges, but acquitted him of a crack cocaine count. Nonetheless, the district court used the crack involved in the acquitted count as relevant conduct to calculate defendant’s guideline sentence. Defendant argued that the court’s use of the drugs involved in the acquitted count violated Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact other than a prior conviction that increases the sentence beyond the statutory maximum must be submitted to the jury and proven beyond a reasonable doubt). The First Circuit refused to extend Apprendi to cover the use of relevant conduct at sentencing. By its own terms, the holding in Apprendi applies only when the disputed “fact” enlarges the applicable statutory maximum and the defendant’s sentence exceeds the original maximum. Apprendi does not apply to guideline findings that increase the defendant’s sentence, but do not elevate the sentence to a point beyond the lowest applicable statutory maximum. The fact that the jury acquitted defendant of the crack count did not change the analysis. The Supreme Court has held that a district court may, without offending due process, consider and act upon acquitted conduct. U.S. v. Watts, 519 U.S. 148 (1997). U.S. v. Caba, 241 F.3d 98 (1st Cir. 2001).

1st Circuit includes uncharged drug transactions in calculation. (270) The district court attributed to defendant the drugs Perez sold to Bennett. Defendant argued that this was improper because the business arrangement between him and Perez had nothing do so with the separate arrangement between Perez and Bennett. The First Circuit found the district court’s contrary conclusion supported by the evidence. When Bennett called defendant in March 1997, the two men discussed drug prices, defendant gave Bennett the phone numbers to reach Perez, and said that Perez would “take care of him.” Defendant then called Perez to be sure that he knew Bennett would try to reach him. That was sufficient to link defendant to those transactions. U.S. v. Terry, 240 F.3d 65 (1st Cir. 2001).

1st Circuit includes transactions from drug ledger defendant was holding when arrested. (270) When police entered the drug stash apartment, they found defendant skimming over loose pages from a drug ledger that listed accounts receivable for cocaine sales. The ledger contained defendant’s nickname, Papo, in several entries. Police then found hidden in the apartment 400 grams of cocaine, several of which were marked with weights that matched those written on the drug ledger pages that defendant had been reviewing. The First Circuit upheld the district court’s decision to include in its drug quantity calculation the transactions described in the ledger pages that defendant was reviewing at the time of his arrest. These transactions were clearly part of a “common scheme or plan” as the offense of conviction. Although there were other ledgers found in the apartment, the government did not attempt to include the amounts listed in them. By means of cross-reference, it was possible to determine that the transactions on the pages in question all had occurred in the immediately preceding months prior to the arrest. Although the judge’s findings did not use the language “common scheme or plan,” a close reading of the sentencing transcript indicated that the issue was adequately addressed. U.S. v. Santos Batista, 239 F.3d 16 (1st Cir. 2001).

1st Circuit upholds use of drug quantities in acquitted conduct. (270) Defendant was convicted of participating in a conspiracy to possess and distribute heroin. He argued that crack cocaine seized by police during his arrest should not be included in his sentence calculation because he was acquitted on all counts involving possession or distribution of cocaine. The First Circuit upheld the use of drug quantities involved in the acquitted counts. A jury’s acquittal does not prevent the sentencing court from considering conduct underlying an acquitted charges, if that conduct has been proved by a preponderance of the evidence. U.S. v. Berrios, 132 F.3d 834 (1st Cir. 1998).

1st Circuit approves considering drugs in acquitted counts that were part of conspiracy. (270) Defendant challenged the inclusion of crack quantities underlying two counts for which he was convicted. The First Circuit found no error, since the acquitted counts were part of the scheme underlying the conspiracy for which he was convicted. U.S. v. Lerebours, 87 F.3d 582 (1st Cir. 1996).

1st Circuit concludes that transactions involving co-defendant were relevant conduct. (270) Defendant pled guilty to a single cocaine sale, and argued that several other sales conducted by his co-defendant, who he contended ran an independent cocaine distribution business, were not relevant conduct. The 1st Circuit affirmed that the co-defendant’s cocaine sales were relevant conduct. At the first drug sale, defendant told the undercover agent that he could come by anytime to purchase cocaine. The natural inference was that defendant operated a cocaine distribution business. Moreover, although defendant was not physically present at the subsequent sales, there was sufficient evidence linking him to the transactions. The evidence supported the inference that defendant and the co-defendant worked closely together on cocaine sales and that defendant was the supplier. U.S. v. Reyes, 3 F.3d 29 (1st Cir. 1993).

1st Circuit upholds consideration of drugs purchased for personal use. (270) The 1st Circuit held that defendant was responsible for 1.7 kilograms of cocaine, even though this included amounts he purchased for personal use. Sentencing accountability is different than criminal liability. Purchases by an addict for personal use may not automatically make one a member of a conspiracy to distribute. However, where a defendant is a member of a drug conspiracy, the defendant’s purchases for personal use are as relevant in determining drug quantity as the quantity he knew were distributed by the conspiracy. U.S. v. Innamorati, 996 F.2d 456 (1st Cir. 1993).

1st Circuit affirms defendant’s involvement in later sales to undercover agent. (270) Defendant admitted his involvement in a sale of cocaine to an undercover agent. The 1st Circuit affirmed that defendant was also involved in two subsequent sales, and thus those sales constituted relevant conduct for sentencing purposes. The agent testified that at the first sale, he met with defendant, identified as “Hector,” and that defendant told the agent to contact him through Luis if he wanted more cocaine. The agent arranged for two later sales by speaking on the phone to someone who answered to the name “Hector.” Each call took place in the same manner, with the agent calling Luis, who in turn established a three-way conference call with “Hector.” The agent recognized the voice of “Hector” each time as that of defendant. “Hector” told the agent to meet his “nephew” at the “same place.” The two later sales then took place under circumstances similar to the first sale, with a co-defendant using defendant’s car. U.S. v. Olea, 987 F.2d 874 (1st Cir. 1993).

1st Circuit upholds consideration of drugs involved in transaction at which defendant was not present. (270) Defendant contended that it was improper for the district court to consider at sentencing 2.014 grams of cocaine that her boyfriend gave to undercover agents without her knowledge or participation. The 1st Circuit affirmed the offense level calculation, ruling that the 2-gram transaction was part of the same course of conduct for which defendant pled guilty. The two different distributions were essentially related stages of the same transaction. The 2 grams was a sample for which the boyfriend did not demand payment, and served as a direct antecedent to the sale of the larger quantity of cocaine for which defendant pled guilty. Moreover, given defendant’s extensive participation in the planning of the entire transaction, and in the collection of the proceeds, the district court could have reasonably concluded that defendant knew of the 2-gram transaction. U.S. v. DiIorio, 948 F.2d 1 (1st Cir. 1991).

1st Circuit affirms that conduct underlying dismissed count was part of same course of conduct as convicted counts. (270) In the first four counts, an undercover agent provided immigration documents to defendant in return for heroin from Hong Kong. In the dismissed count, defendant, with the assistance of the same undercover agent, attempted to smuggle heroin into the United States from Bangkok. Defendant pointed out that the dismissed count took place at a later time, involved drugs coming from a different place, and may have involved different participants. However, the district court relied on the fact that the two key participants, defendant and the undercover agent, were the same. Early in their relationship they discussed the possibility of a later “big deal,” (the later Bangkok attempt), and immigration documents obtained by the undercover agents played a role in the import efforts. Although admitting that the matter was one of judgment, the 1st Circuit upheld the determination that the five counts involved a single course of conduct. U.S. v. Mak, 926 F.2d 112 (1st Cir. 1991).

1st Circuit finds drug transaction not part of common scheme with offense of conviction. (270) Defendant’s offense level was calculated by considering drug quantities involved in four transactions other than the charged transaction. He contended that this was error because the four transactions were not part of the same common scheme as the charged transaction. The 1st Circuit rejected defendant’s contention as to three of the other transactions, but agreed with defendant as to the fourth. The three transactions involved defendant personally obtaining cocaine from a source in New York and delivering it to a co-conspirator in Maine, the same pattern of conduct that formed the basis for the charged conspiracy. The fourth transaction, however, was consummated solely by defendant’s wife, and defendant did not even know about it until it was over. Although defendant benefitted from the transaction, this conduct was distinctly different from the crime of conviction. U.S. v. Wood, 924 F.2d 399 (1st Cir. 1991).

1st Circuit holds uncharged drug sales may be relied upon in setting base offense level. (270) The 1st Circuit affirmed the district court’s reliance on evidence that a drug defendant had sold or used between 1291 and 1648 grams of cocaine some 18 months before his arrest. This was properly considered under § 1B1.3(a)(2) because the prior conduct was part of a “common scheme or plan.” This finding was not clearly erroneous. U.S. v. Mocciola, 891 F.2d 13 (1st Cir. 1989).

1st Circuit holds that guidelines allow for consideration of quantity of drugs specified in dismissed counts. (270) The 1st Circuit held that the relevant conduct section of the guidelines (§ 1B1.3) allows a sentencing court to aggregate quantities of drugs specified in dismissed counts. Lengthy discussion of the “real versus charged” offense characteristics. U.S. v. Blanco, 888 F.2d 907 (1st Cir. 1989).

1st Circuit finds the fact that plea bargain did not result in a lower sentence was not grounds for reversal. (270) The trial court considered the facts underlying the dismissed count in determining relevant conduct under the guidelines. As a result the defendant complained that his plea bargain was no bargain at all because his sentence was not affected as a result. The 1st Circuit rejected this argument. Because the amount of drugs is the determining factor under the guidelines, “charge type” plea bargains may not be of much value to defendants. However, defendants are still free to bargain over sentence recommendation. Because the plea bargain did not promise a recommendation for a lower sentence, the appellant had no grounds for relief. U.S. v. Wright, 873 F.2d 437 (1st Cir. 1989).

1st Circuit holds that sentencing court properly determined relevant conduct by considering dismissed count which overlapped count on which defendant pled guilty. (270) The 1st Circuit held that the sentencing court properly considered conduct that was the subject of the dismissed count because both counts covered the same underlying conduct. Defendant’s complaint that the sentencing court erred in considering the small amount of marijuana that he possessed was foreclosed by the sentencing court’s express statement to the contrary. U.S. v. Wright, 873 F.2d 437 (1st Cir. 1989).

2nd Circuit holds defendant responsible for all MDMA pills found in his car. (270) Defendant, a Canadian citizen, was arrested driving into the U.S. after customs officials discovered thousands of pills containing 3, 4 methylenedioxymethamphetamine (MDMA), a Schedule I controlled substance, in his car. The district court held defendant accountable for the entire quantity of MDMA pills found in his vehicle. Defendant argued that he should not be held accountable for the combined weight of all 7,000 MDMA pills in his car because he did not know about the 3,000 pills hidden in his vehicle’s rear interior paneling. The Second Circuit disagreed. The district court was not required to find that he “knowingly” possessed all 7,000 MDMA pills before holding him accountable for them all. “There is no requirement under the Guidelines that the defendant know or foresee the total quantity of drugs in his possession to be sentenced for the full amount.” U.S. v. de Velasquez, 28 F.3d 2 (2d Cir. 1994). See also Note 2 to § 1B1.3. U.S. v. Kerr, 752 F.3d 206 (2d Cir. 2014).

2nd Circuit holds that Booker does not bar sentencing on the basis of acquitted conduct. (270) Before Booker, the Supreme Court held that the Due Process Clause permitted a sentencing judge to use acquitted conduct in determining a defendant’s guideline range. U.S. v. Watts, 519 F.3d 148 (1997). The Second Circuit rejected defendants’ argument that the rulings in Booker and its predecessors precluded sentencing on the basis of acquitted conduct. First, Justice Stevens’ discussion in Booker indicated that Watts remains good law. Defendants’ argument missed the distinction between elements of an offense and facts relevant to sentencing. Although the jury acquitted defendants of conduct that would have exposed them to a statutory sentencing range of five to 40 years’ imprisonment under § 841(b)(1) (B), the jury convicted them of conduct that exposed them to a sentencing range of zero to 20 years’ imprisonment under § 841(b)(1)(C). The district court sentenced them within the range authorized by the jury verdict and within the guideline range as determined by facts found by a preponderance of the evidence. The panel also rejected defendant’s argument that a court cannot sentence a defendant to a term of imprisonment greater than the statutory minimum for drugs not found by a jury. The Supreme Court made clear in Booker than when a judge sentences a defendant within the statutory range authorized by the jury verdict, there is no Sixth Amendment violation. U.S. v. Vaughn, 430 F.3d 518 (2d Cir. 2005).

2nd Circuit affirms firearm enhancement despite acquittal and omission from PSR. (270) Defendant was convicted of various crimes in connection with his participation in a large drug organization. The district court applied a § 2D1.1(b)(1) enhancement based on defendant’s use of a firearm in connection with the murders of four unnamed Colombians. Defendant argued that this was impermissible because there was no recommendation for such an enhancement in the PSR, the government did not object to the lack of such an enhancement, and the jury acquitted him of the murders. The Second Circuit affirmed the enhancement. The sentencing judge was not bound by the sentencing recommendations of the PSR. Defendant did not claim he was denied the opportunity to oppose the government’s tardy request for the enhancement. A sentencing court is entitled to rely on any type of information known to it, including evidence at trial that the jury viewed as insufficient to convict beyond a reasonable doubt. The court was free to consider the evidence concerning the murder of the four Colombians despite defendant’s acquittal. The district court found the evidence established by more than a preponderance of the evidence that defendant possessed guns “on a regular basis” in connection with the gang’s drug trafficking activity. U.S. v. Miller, 116 F.3d 641 (2d Cir. 1997).

2nd Circuit holds defendant accountable for marijuana estimated to be in unrecovered boxes. (270) Customs inspectors intercepted 48 boxes hidden in a container to be shipped to defendant’s house. They opened one box and found marijuana, and then made a controlled delivery of the 47 unopened boxes. Defendant and two others unloaded the boxes and brought them into his house. Arresting officers only recovered 41 of the 47 boxes. The district court held defendant accountable for the marijuana in all 48 boxes. The Second Circuit agreed that defendant was responsible for the marijuana estimated to be in the six missing boxes. Defendant personally participated in unloading the 47 boxes and therefore was accountable for the marijuana in those boxes. The district court properly relied on an estimate of the amount of drugs in the six missing boxes. Each of the 42 recovered boxes weighed between 50 and 90 pounds. The district court conservatively determined that the six missing boxes weighed 50 pounds each for a total of 300 pounds. The fact that the 42 recovered boxes contained marijuana was persuasive evidence that the six missing boxes also contained marijuana. U.S. v. Prince, 110 F.3d 921 (2d Cir. 1997).

2nd Circuit says old drug records did not contain sufficient details to use as relevant conduct. (270) Defendant was convicted of a drug conspiracy that ran from 1990 to 1991. Police found records reflecting drug transactions from 1983 to 1985 in defendant’s residence. The district court found that the records showed cocaine sales of 58 kilograms, and included this quantity as relevant conduct for sentencing purposes. The 2nd Circuit held that the drug records did not establish conduct with a sufficiently high degree of similarity to consider the drugs relevant conduct. The records did not contain enough details to conclude that the conduct was similar. The government’s expert could not conclusively state what type of drugs were involved in the records. Moreover, the records did not clearly show the nature of the transactions, the participants, or any discernible connection to the instant conspiracy. U.S. v. Fermin, 32 F.3d 674 (2nd Cir. 1994), overruled on other grounds by Bailey v. U.S., 516 U.S. 137 (1995).

2nd Circuit finds evidence insufficient to attribute uncharged heroin transaction to defendant. (270) Defendant was convicted of conspiring to distribute heroin and cocaine. His offense level was increased for participating in planning an uncharged heroin transaction, based on testimony of a Customs agent that a co-conspirator said the cocaine deal was simply a “test run” for a 60 to 100 kilogram heroin deal, and that defendant was supposed to serve as the buyer of both the cocaine and the heroin. The 2nd Circuit found this evidence insufficient to hold defendant accountable for the heroin. The government failed to show that defendant knew of the transaction and agreed to participate in it. On the critical question of whether the co-conspirator had subsequently discussed the future heroin transaction with defendant, the agent’s testimony was inconsistent and ultimately inconclusive. U.S. v. Tapia-Ortiz, 23 F.3d 738 (2nd Cir. 1994).

2nd Circuit permits downward departure if sentence is greatly increased for acquitted conduct. (270) The jury convicted defendant of simple possession of crack, but acquitted him of possession with intent to distribute. The district judge reluctantly imposed a 135-month sentence, stating that the sentence was grossly disproportionate to the offense, and that he would have departed if he thought he had the power under the facts of the case. The 2nd Circuit held that the judge may have not fully understood his power to depart under section 3553(b). The court cited U.S. v. Concepcion, 983 F.2d 369 (2nd Cir. 1992), which stated that a court has the power to depart where the relevant conduct guideline would require an extraordinary increase in sentence by reason of conduct for which a defendant was acquitted by the jury. U.S. v. Monk, 15 F.3d 25 (2nd Cir. 1994), overruled on other grounds by U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001).

2nd Circuit holds that drug quantities purchased before charged conspiracy were relevant conduct. (270) Defendant argued that certain drug quantities were not relevant conduct because they occurred before the charged conspiracy began. The 2nd Circuit rejected this claim, since conduct occurring prior to a charged conspiracy may be considered relevant under section 1B1.3(a)(2) so long as it is part of the “same course of conduct.” Here, the evidence showed that these earlier purchases were part of a regular course of conduct between defendant and his supplier. The record supported the district court’s conclusion that defendant was responsible for at least five kilograms of cocaine. Even if the specific transactions identified in the record did not total five kilograms, they were merely examples of a course of conduct that continued unabated for an entire year, and they clearly supported the district court’s conclusion. U.S. v. Wilson, 11 F.3d 346 (2nd Cir. 1993).

2nd Circuit holds that statutory minimum applies only to conduct which led to conviction under that statute. (270) The 2nd Circuit held that the statutory mandatory minimum sentences of 21 U.S.C. section 841(b)(1) apply only to the conduct which actually resulted in a conviction under that statute. Thus, the district court erred in concluding that it should include cocaine involved in conduct underlying a dismissed charge in determining whether the mandatory minimum for the offense of conviction applied. Since only .431 grams of cocaine were involved in the offense of conviction, the mandatory minimum should not have applied. However, on remand the district court may consider whether the additional cocaine should be considered as relevant conduct in setting the base offense level. The district court here may have incorrectly assumed that section 3D1.2(d) (grouping rules for convictions), rather than section 1B1.3(a)(2) (relevant conduct) applied to this case. The difference is significant, because section 1B1.3(a)(2) requires the sentencing court to determine whether the additional conduct was “part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S. v. Darmand, 3 F.3d 1578 (2nd Cir. 1993).

2nd Circuit holds that prior trips were relevant but drug quantity was not reliably established. (270) Defendant was arrested for smuggling 427.4 grams of heroin into the U.S. from Nigeria. The 2nd Circuit held that defendant’s travel during the previous two years was part of the same course of conduct, but that the quantity of drugs involved was not proved by a preponderance of the evidence. Defendant’s conflicting passport accounts and his work attendance records proved that he made eight trips to Nigeria over a 15-month period on more than one passport. It could also be inferred that he imported heroin during each of these journeys because he used two passports, traveled frequently, avoided using direct flights and could not have afforded the airfare on his $12,000 annual salary. However, there was no proof that he imported 427.4 grams of heroin on each of his seven other trips. Only “speculation” linked defendant to importation of drugs beyond 427.5 grams. U.S. v. Shonubi, 998 F.2d 84 (2nd Cir. 1993).

2nd Circuit affirms that transactions listed in drug ledger were relevant conduct. (270) Defendant sold 37 kilograms of cocaine to an undercover agent. Agents discovered a ledger in which defendant had detailed transactions involving 3,166 kilograms of cocaine during a two-month period. The 2nd Circuit held it was proper to include the 3,166 kilograms in calculating defendant’s base offense level, since the transactions in the ledger were part of the same course of conduct as the sale to the agent. The ledger was kept by defendant, detailed his participation in drug activity, and included code references identical to the code on the cocaine sold to the agent. The fact that the 3,166 kilograms might also be considered in a pending state proceeding did not require a different result. A sentencing court should not consider the outcome of a possible subsequent prosecution. Resolution of the double punishment issue must await the second prosecution. U.S. v. Caceda, 990 F.2d 707 (2nd Cir. 1993).

2nd Circuit upholds consideration of uncharged sales and cocaine possessed by supplier. (270) The 2nd Circuit upheld the attribution to defendant of between 500 and 2000 grams of cocaine, even though defendant sold only 5-1/2 ounces of cocaine to an undercover agent. It was proper to consider sales defendant made prior to the undercover agent’s contact with defendant. Defendant admitted to the agent that he sold approximately 2 ounces a week, and a confidential informant stated that he saw 8 to 10 ounces of cocaine in defendant’s possession before the investigation began. It was also proper to attribute to defendant 6 additional ounces found in his apartment and on his supplier’s person when he and the supplier were arrested. Finally, the court could consider defendant’s promises to supply the agent with greater quantities of cocaine in the future. The court reasonably inferred that such promises were more than just “puffing.” U.S. v. Beaulieau, 959 F.2d 375 (2nd Cir. 1992).

2nd Circuit affirms enhancement for firearm possession during transaction that took place one month after offense of conviction. (270) Defendant contended it was error to enhance his offense level under guideline § 2D1.1(b)(1) for possession of a firearm during a drug transaction which took place on June 14, since the offense of conviction occurred May 16. The 2nd Circuit affirmed the sentence, holding that the gun possessed on June 14 could result in a weapons adjustment for the May 16 drug crime if the the gun was possessed in connection with drug activity and the drug activity on June 14 was part of the same course of conduct or common scheme as the May 16 sale. Both conditions were met here. Both transactions were one of a series of meetings in which defendant either arranged to sell or actually sold crack to undercover detectives following introductions by the same informant, and the weapon was possessed as a security measure. However, the district judge did erroneously state that the gun possession had to be linked to a transaction specified in one of the dismissed counts. U.S. v. Quintero, 937 F.2d 95 (2nd Cir. 1991).

2nd Circuit finds no inconsistency between use of relevant conduct and dismissal of counts in plea bargain. (270) The 2nd Circuit found no error in the district court’s consideration ofquantities of drugs involved in transactions that were the subject of counts dismissed as result of plea bargaining. Even if this result were to diminish the number of plea agreements, that is no reason to disregard the guidelines. This is a matter for the Sentencing Commission to consider in its periodic modification of the guidelines. Moreover, there is no conflict between the relevant conduct guideline and the policy statement on plea bargaining. The policy statement provides that a court may accept a plea agreement which contemplates dismissal of charges only if the remaining charges adequately reflect the seriousness of defendant’s behavior. However, a judge’s assessment of the adequacy of the remaining counts is to be determined in light of the sentence authorized for those counts by all of the guidelines, including the relevant conduct guideline. U.S. v. Quintero, 937 F.2d 95 (2nd Cir. 1991).

2nd Circuit affirms that conduct occurring prior to date of charged conspiracy is relevant. (270) Defendant contended that any conduct that occurred prior to the beginning of his charged conspiracy could not be considered relevant conduct because it would not have been in furtherance of the conspiracy. Although some of uncharged conduct pre-dated the conspiracy by as much as two years, the 2nd Circuit rejected defendant’s argument. Defendant engaged in the same course of conduct–cocaine distribution–for a period of years without significant interruption. His method of distribution remained virtually unchanged over time. Because of the “high degree of similarity” between the charged and uncharged conduct, and because “relevancy ‘is not determined by temporal proximity alone,’” the uncharged quantities were properly attributable to defendant. U.S. v. Cousineau, 929 F.2d 64 (2nd Cir. 1991).

2nd Circuit affirms consideration of uncharged quantities of drugs. (270) Defendant contended that there was insufficient evidence to support the district court’s use in calculating his offense level of approximately 2500 grams of cocaine that were not specified in his indictment. The 2nd Circuit found that the government had satisfied its burden of showing defendant’s involvement in transactions involving the uncharged quantities of cocaine. Four government witnesses testified that they regularly bought cocaine from defendant over a period of time preceding and including the dates of the conspiracy. Defendant presented no evidence at the hearing, only arguing that the government did not establish the additional amounts by a preponderance of the evidence. U.S. v. Cousineau, 929 F.2d 64 (2nd Cir. 1991).

2nd Circuit finds no Rule 11 violation in calculating offense level based upon drugs involved in uncharged conduct. (270) Rule 11, Fed. R. Crim. P. requires that the defendant be informed of the nature of the charges against him and the consequences of pleading guilty. Defendant argued that the inclusion of two kilograms he negotiated to sell in an uncharged offense violated Rule 11. The 2nd Circuit found that Rule 11 was satisfied when the judge informed defendant of the maximum sentence he could receive under the statute, and that the guidelines, if constitutional, would apply to his case. Rule 11 does not require the judge and prosecutor to calculate how the guidelines would actually apply to defendant. Defendant also argued that it violated due process to require him to divulge information about other crimes during the presentence interview, thus exposing himself to future prosecution. The 2nd Circuit found that resolution of this issue must wait until any prosecution of defendant for such crimes. .S. v. Perdomo, 927 F.2d 111 (2nd Cir. 1991), superseded on other grounds by guideline as stated in U.S. v. McKay, 183 F.3d 89 (2nd Cir. 1999).

2nd Circuit upholds finding that uncharged drug sales 8 to 14 months earlier were part of “same course of conduct.” (270) A law review article by the Chairman and the General Counsel of the Sentencing Commission indicates that the phrase “same course of conduct” as used in the “relevant conduct” section of the guidelines, is similar to, but broader than, the scope of Fed. R. Crim. P. 8(a), which permits the joinder of two or more charges if they “are of the same or similar character or are based on . . . two or more transactions .ÿ.ÿ. constituting parts of a common scheme or plan.” Wilkins & Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S. C. L. Rev. 495, 515-16 (1990). The 2nd Circuit relied on this article in upholding the district court’s ruling that notwithstanding defendant’s intervening arrest, 12 uncharged drug sales that occurred 8-14 months before the sale to the undercover officer were part of the “same course of conduct.” Accordingly the amounts of drugs in the earlier transactions were properly included in calculating the guideline range. U.S. v. Santiago, 906 F.2d 867 (2nd Cir. 1990).

2nd Circuit rules that sentencing court may consider all drugs involved in offense in determining the offense level. (270) Defendant pled guilty to possession with intent to distribute more than 500 grams of cocaine, and the government dismissed charges of possession with intent to distribute 5 kilograms or more. On appeal, the 2nd Circuit held it was proper for the sentencing court to consider the entire 21 kilograms of cocaine involved in the conspiracy under § 1B1.3(a)(2), because a common plan or scheme was involved. The district court’s consideration was not limited to the amount of drugs found on the defendant’s person at the time of the arrest. This result is permissible even if the government’s decision to dismiss certain counts were to be considered an acquittal on those charges. U.S. v. Bedoya, 878 F.2d 73 (2nd Cir. 1989).

2nd Circuit holds it proper to consider total amount of drugs in determining the base offense level. (270) Defendant was arrested after he attempted to smuggle 25 kilograms of cocaine into the country. He pled guilty to importing in excess of 500 grams. The sentencing judge considered the full amount of the cocaine possessed in determining the base offense level. On appeal, the Second Circuit held that the district court’s computation was proper. Under the “real offense” system adopted by the guidelines, it is proper for the sentencing court to consider the facts underlying the defendant’s conduct rather than the facts necessary to support the charged offense (see § 1B1.3). Because the defendant failed to challenge the presentence report’s assertion that he possessed 25 kilograms of cocaine, the sentence was properly calculated. U.S. v. Fernandez, 877 F.2d 1138 (2nd Cir. 1989).

3rd Circuit holds that drug conspirator cannot exclude personal use amounts. (270) Defendant was convicted of conspiracy to distribute methamphetamine. He argued that the district court erred by failing to exclude from the quantity of drugs seized an amount that he intended to keep for personal consumption. When a defendant is convicted of drug distribution, ordinarily a district court should exclude from the total drug quantity any amount possessed for his personal consumption. The Third Circuit found the situation different when a defendant is convicted of conspiring to distribute drugs. Nothing in the Guidelines suggests that drugs a defendant earmarks for his personal use should be deducted from the total quantity involved in a conspiracy. Excluding the quantity of drugs retained for personal use does not make sense when a conspiracy has been proved. U.S. v. Iglesias, 535 F.3d 150 (3d Cir. 2008).

3rd Circuit holds that two-week delay in delivery did not mean drugs were no longer part of relevant conduct. (270) Defendant arranged a March 27 meeting between a co-defendant and a confidential informant for a one-kilogram cocaine delivery. However, the co-defendant did not make a delivery on that day, and defendant was not present at the meeting. He acknowledged that he would have been responsible for a delivery on March 27 if there had been one, but claimed that he was not responsible for the delivery two weeks later. The Third Circuit held that the two-week delay did not diminish defendant’s responsibility for it. The delivery grew out of defendant’s introduction of his co-defendant and the confidential informant for a transaction that was consummated two weeks after the meeting. The delivery counted as relevant conduct for defendant. There was no intervening event between defendant’s conduct and the delivery that would absolve him of responsibility for the delivery. U.S. v. Colon, 474 F.3d 95 (3d Cir. 2007).

3rd Circuit upholds reliance on drug addict’s testimony to determine drug quantity. (270) Defendant challenged the district court’s reliance on the testimony of Billings to find that defendant was involved in the distribution of between one and three kilograms of heroin. Billings testified that during the years 1995-1997, he and defendant traveled to Chicago every three months to purchase $15,000-$30,000 worth of heroin and/or cocaine, and that in 1998 and 1999, he and defendant traveled to New York every three months to obtain $30,000 worth of the drugs. Billings also testified that $30,000 would buy eight to nine ounces of heroin in New York. This was consistent with the quantity of drugs found in defendant’s car. Although Billings was a drug addict, his testimony was not internally inconsistent, was corroborated by the testimony of another witness (Morgan), and was subject to vigorous cross-examination at the sentencing hearing. The court, which observed their demeanor and was in a position to judge credibility, concluded that the testimony of Billings and Morgan was reliable. Because there was at least a minimal indicia of reliability to support the court’s reliance on Billings’ and Morgan’s testimony relating to drug quantity, the Third Circuit found no clear error. U.S. v. Givan, 320 F.3d 452 (3d Cir. 2003).

3rd Circuit says defendant who provided security was responsible for drugs found in apartment. (270) Defendant contended that he should not be responsible for the drugs found in Del Rosario’s apartment because he did not agree to “jointly undertake” the drug distribution scheme. However, the district court found defendant responsible for these drugs because defendant personally “aided and abetted” the scheme by providing security to Del Rosario. Application Note 2 to § 1B1.3 explains that a finding of joint undertaking under (a)(1)(B) is not necessary where the defendant personally aids or abets a crime under (a)(1)(A). Defendant’s implied agreement to provide security could be inferred from his conduct. He remained in Del Rosario’s apartment for a significant amount of time while several others came and went. Furthermore, defendant was responsible for the full amount of drugs under § 1B1.3(a)(1)(B). Defendant’s conduct was in furtherance of the jointly undertaken criminal activity because defendant provided security for Del Rosario while distributing drugs. The full amount was reasonably foreseeable to defendant because he was in the apartment for an extended period of time while the drugs were being distributed, and there was information that a large shipment had arrived from the Philippines. U.S. v. Perez, 280 F.3d 318 (3d Cir. 2002).

3rd Circuit holds that drugs purchased in another state were relevant conduct. (270) Defendant argued that the district court erred by attributing to him five kilograms of cocaine powder that he purchased from a supplier in New York City named Poppy. The Third Circuit held that the New York City drug buys were properly attributed to defendant as relevant conduct. Defendant’s multiple drug trafficking offense, including the offense of conviction and his purchases in New York, were part of a common scheme or plan because they were “substantially connected to each other by at least one common factor, such as … common accomplices, … [or a] common purpose.” Note 9(a) to USSG § 1B1.3. Defendant and Farris were clearly accomplices in the offense of conviction and in their joint purchases of cocaine from Poppy in New York City. Farris introduced defendant to Poppy, identified defendant as a reliable bulk purchaser of cocaine, purchased cocaine from Poppy for defendant, and gave defendant money to purchase cocaine from Poppy. The district court properly held defendant accountable for all the cocaine that he purchased from Poppy, either alone or jointly with Farris. U.S. v. Boone, 279 F.3d 163 (3d Cir. 2002).

3rd Circuit denies safety valve for possessing firearm during prior drug dealing. (270) In September 1994, defendant pled guilty to drug charges. The “safety valve” provision, § 5C1.2, does not apply to defendants who possess a firearm in connection with the “offense.” The Third Circuit held that defendant was properly denied safety valve protection based on his possession of a firearm during drug dealing before the instant offense. Note 3 to § 5C1.2 defines “offense” as the offense of conviction and all relevant conduct. Defendant admitted using his two younger brothers in May 1994 to purchase 11 guns for himself and those who worked for him selling drugs. In June 1994, he purchased more guns, and attempted another purchase in July. This prior conduct satisfied the three part test for “same course of conduct”: defendant regularly dealt drugs, the instant offense was similar to the prior drug dealings, and all of the drug sales took place in the year prior to his arrest. The gun possession was sufficiently connected to the instant offense—the firearms furthered defendant’s drug enterprise, and the firearms transactions resulted from his contact with those he met through his drug enterprise. U.S. v. Wilson, 106 F.3d 1140 (3d Cir. 1997).

3rd Circuit finds no double jeopardy violation in prior sentencing court’s consideration of current offense. (270) The district court dismissed counts related to defendant’s earlier arrest on the ground that the defendant had already been punished for these offenses by a judge who considered them at a prior sentencing, and therefore double jeopardy barred the prosecution. The 3rd Circuit reversed, finding that the sentencing judge’s consideration of the prior arrest did not constitute “punishment.” Information about the earlier arrest could not have been used to calculate defendant’s base offense level, since the judge had no gram count for defendant’s earlier transaction. Nor had the earlier arrest been used as the basis for an upward departure. On the other hand, the arrest did play a role in denying a reduction for acceptance of responsibility and assessing a penalty for obstruction of justice. In addition, it may have played a role in the judge’s decision to sentence defendant at the top of the applicable guideline range. However, none of these uses constituted “punishment,” and thus did not implicate the double jeopardy clause. U.S. v. Garcia, 919 F.2d 881 (3rd Cir. 1990).

4th Circuit finds cash seized from defendant two weeks before drug arrest was relevant conduct. (270) Defendant was convicted of possessing with intent to distribute oxycodone based on pills found in his possession during a traffic stop. In calculating the drug quantity, the court included the drug equivalent of $5,800 in cash that was seized from defendant at a bus stop two weeks before his arrest. The Fourth Circuit found no error. The police interacted with defendant twice, both times in places of interstate transportation (once a bus station, and the other on an interstate highway); once seizing a substantial amount of cash, and the other a significant quantity of drugs ready for distribution. Defendant could not provide a consistent explanation for why he had that much cash on him when the police interviewed him at the bus station. This, combined with his suspicious behavior in having a ticket under someone else’s name and text messages which were consistent with a drug trafficking scheme, was enough to make it more likely than not that defendant was transporting drug proceeds. U.S. v. McGee, 736 F.3d 263 (4th Cir. 2013).

4th Circuit upholds drug quantity despite defendant’s incarceration. (270) Defendant was convicted of drug conspiracy charges. He argued that the court considered unreliable evidence in the PSR to find him responsible for the equivalent of 20,515 kilograms of marijuana. He argued that it was physically impossible for him to have facilitated these drug deals, since he was incarcerated during several months in 2006 when the drug deals occurred. The Fourth Circuit found no error. Although defendant was arrested in January 2006, he was out on bail until sentencing in August, giving him eight months to complete the alleged transactions. It was not plain error for the district court to believe witnesses who said that the transactions occurred when defendant was not incarcerated. Finally, even if the transactions were facilitated for defendant by his co-conspirators, he was as liable as if he had sold them himself. U.S. v. Slade, 631 F.3d 185 (4th Cir. 2011).

4th Circuit holds that relevant conduct need not be proved at trial. (270) At defendant’s trial for conspiracy to distribute cocaine, the government argued that defendant’s offense involved more than five kilograms, but the jury by special verdict form found that the offense involved between 500 grams and five kilograms. At sentencing, the government sought to present evidence that defendant’s offense involved between 90 and 100 kilograms of cocaine. Defendant argued that evidence that the government presented at trial and the jury’s verdict foreclosed the government from presenting evidence that defendant’s offense involved a greater quantity than that found by the jury. The Fourth Circuit held that the government need not present its relevant conduct evidence at trial and could establish defendant’s offense level at sentencing through evidence that had not been presented at trial. U.S. v. Young, 609 F.3d 348 (4th Cir. 2010).

4th Circuit finds testimony from multiple witnesses supported drug quantity finding. (270) Defendant argued that the district court erred in attributing 1.5 kilograms of cocaine base to him for sentencing, but the Fourth Circuit disagreed. At trial, multiple witnesses testified about defendant’s drug distribution business in the area. Witnesses testified that the illicit drug operations at Shriver’s Motel were carried on around the clock, and defendant was described as the biggest dealer there. Wigington had dealt drugs with defendant from the late 1990s until 2002, when Shriver’s Motel was raided. Wigington could readily obtain four to five ounces of crack from defendant, who would still have a large supply of crack remaining. Wigington “couldn’t even put a number to how many times” he bought cocaine from defendant, but had seen defendant counting shoe-boxes full of cash. Beginning in early 2000, Jackson bought from a half to an ounce of crack from defendant on a weekly basis, and had personally seen defendant selling crack on almost a daily basis. Two additional witnesses regularly bought crack from defendant and saw him with several ounces of cocaine. U.S. v. Jeffers, 570 F.3d 557 (4th Cir. 2009).

4th Circuit allows firearm enhancement despite acquittal on firearms count. (270) Defendants were convicted of drug conspiracy charges, but the judge granted a judgment of acquittal on a firearms conspiracy charge. They argued that the acquittal foreclosed the judge from finding as a sentencing fact that they had possessed a firearm in connection with the crack conspiracy. The Fourth Circuit disagreed. Due to the different standards of proof applicable to trials and sentencing proceedings, an acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proven by a preponderance of the evidence. At sentencing, the court was entitled to consider evidence relating to firearms possession, and the prosecution was only required to prove any such possession by a preponderance of the evidence. U.S. v. Brooks, 524 F.3d 549 (4th Cir. 2008).

4th Circuit holds that drug sales while in prison awaiting trial were not relevant to charged offense. (270) While incarcerated in Kentucky awaiting trial on drug charges in West Virginia, defendant became involved in a scheme to deal marijuana and Xanax pills within the prison. In sentencing defendant for the original drug charges, the district court applied a two-level enhancement under § 2D1.1(b)(3), finding that the object of his offense was to distribute drugs in a prison. Defendant argued that the increase was improper because the object of his offense was to sell drugs in West Virginia, not the detention center in Kentucky. The Fourth Circuit agreed. Defendant was charged with selling crack in West Virginia. Defendant’s sale of drugs while in the detention center did not constitute relevant conduct. While the offenses were similar in that they both involved the sales of drugs, none of the other factors supported a finding of relevant conduct. The sales had different customers, different accomplices, different methods, and different purposes, and took place a year apart. U.S. v. Dugger, 485 F.3d 236 (4th Cir. 2007).

4th Circuit holds defendant accountable for drugs removed by police prior to controlled delivery. (270) A postal inspector intercepted a package containing 26.71 grams of cocaine base. Officers removed all except .37 grams of cocaine base and made a controlled delivery of the package to defendant. The district court sentenced defendant based only on the .37 gram that was actually in the package at delivery, since there was no evidence connecting defendant to the mailing of the package. The Fourth Circuit reversed, holding that the district court erred in failing to attribute the pre-delivery weight to defendant. The fortuity of intervention of law enforcement did not relieve defendant of responsibility for the 26.71 grams originally in the package. Although the record did not contain evidence that defendant had a role in the shipment of the package, the undisputed facts were sufficient to establish that he was “directly involved” with the quantity of drugs. Defendant came to the address where the drugs were delivered for the express purpose of selling drugs. He knew a package was coming, and he knew that it contained cocaine base. Defendant admitted to police that he expected the package to contain a quantity of cocaine base sufficient for distribution, as opposed to personal use. U.S. v. Fullilove, 388 F.3d 104 (4th Cir. 2004).

4th Circuit relies on strong showing of regularity to support relevant conduct finding. (270) In 1996, undercover agents purchased a total of 163.1 grams of cocaine base from defendant during three separate transactions. He disappeared, and in 1999 agents located him in Virginia, where he was trafficking drugs. He was convicted of firearms and drug charges relating to his Virginia drug trafficking activity. The Fourth Circuit held that the district court properly included the 1996 drug transactions as relevant conduct. The evidence of similarity of the uncharged 1996 conduct to the 1999 offense “was neither especially strong nor especially weak.” The record did not establish how defendant obtained the cocaine found in 1999, or how he intended to distribute it. As for regularity, the district court found that the 1996 transactions and the 1999 offense were not isolated occurrences, but part of a continuous pattern of drug trafficking. The government’s strong showing of regularity compensated for the significant temporal gap between the 1996 uncharged conduct and the 1999 offense of conviction, as well as for the absence of a strong showing of similarity. U.S. v. Hodge, 354 F.3d 305 (4th Cir. 2004).

4th Circuit upholds use of drugs involved in “acquitted” conduct. (270) Defendant argued that he should not be held accountable during sentencing for drug amounts flowing from offense of which he was acquitted. The Supreme Court, however, permits sentencing courts to take acquitted conduct into account for purposes of determining drug amount, because of the lower standard of proof that applies at the sentencing stage. The Fourth Circuit found that it was not clearly erroneous for the district court to find that defendant’s “acquitted” conduct, while not proven beyond a reasonable doubt at trial, was still proven by a preponderance of the evidence for purposes of sentencing. The district court reviewed the entire trial record, the PSR, and the testimony at the sentencing hearing. The court then concluded that the government had proven the drug amounts attributable to defendant. This finding was not clearly erroneous. U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002).

4th Circuit relies on co-conspirator’s hearsay to determine drug quantity. (270) Defendant and his twin brother sold crack from the barbershop where they both worked. At sentencing, a police detective testified that a co-conspirator who sold crack for defendant admitted that during the three and one-half to four weeks he was involved in the conspiracy, he sold two ounces of crack a day for a minimum of four days per week. The detective further testified that the co-conspirator stated that during the time he was involved in the conspiracy, defendant and his brother sold from the barbershop a minimum of one ounce (28.35 grams) of crack per day, five days per week, and a minimum of one additional ounce daily from their apartments. The Fourth Circuit upheld the district court’s reliance on this hearsay testimony to attribute 1871.1 grams of crack to defendant. A co-conspirator’s hearsay statement may be considered by a district court at sentencing, if the district court considers the statement reliable. The district court, after offering defendant a chance to rebut and explain the co-conspirator’s statement, concluded that the statement, as testified to by the police detective, accurately reflected the amount of crack attributable to defendant through the co-conspirator. U.S. v. Randall, 171 F.3d 195 (4th Cir. 1999).

4th Circuit refuses to convert all money into drugs where some was spent lawfully. (270) Defendants distributed cocaine, cocaine base and “flex” (counterfeit cocaine). They were arrested when they attempted to sell $8,000 worth of “flex” to undercover officers. At sentencing, the court converted the flex sale proceeds into an equivalent amount of drugs, i.e., nine ounces of crack cocaine. The Fourth Circuit found insufficient evidence to support converting the entire $8,000 into an equivalent amount of crack. Because flex is not a controlled substance, the proceeds from the flex sale could be counted only to the extent those proceeds were actually used to purchase illegal drugs. However, the evidence showed that defendants customarily invested a portion of the flex sale proceeds to buy drugs, with the remainder used for lawful purchases such as clothes and cars. However, the error was harmless because even if the nine ounces of crack was subtracted from the total amount of drugs, the offense level remained the same. U.S. v. Sampson, 140 F.3d 585 (4th Cir. 1998).

4th Circuit upholds firearm enhancement based on defendant’s involvement in earlier drug-related murder. (270) Defendant and others operated a drug distribution ring. When defendant’s partner was robbed of cocaine, defendant helped arrange the murder of the robber (although a third-party was shot and killed by mistake). Defendant was convicted of drug charges, and the 4th Circuit upheld a firearm enhancement under section 2D1.1(b)(1) based on defendant’s involvement in the murder. The sentencing judge found that the murder protected drugs in which defendant as well as his partner had an interest. Although defendant did not actually possess the firearm, a district court must look to the entire course of relevant criminal conduct, not merely the narrow offense of conviction, in deciding whether to apply a section 2D1.1(b)(1) enhancement for possession of a weapon. U.S. v. Falesbork, 5 F.3d 715 (4th Cir. 1993).

4th Circuit affirms attribution to defendant of golf ball sized cocaine rock seen by informant. (270) At sentencing on cocaine charges, a detective testified that he had interviewed an informant, who claimed to have seen a golf ball sized piece of cocaine in defendant’s possession on the day preceding defendant’s arrest. The detective asked the informant to recreate a model of the cocaine mass with clay. The model was sent to a chemistry professor, who testified that the weight of a similarly sized piece of cocaine base would be approximately 67.5 grams. The 4th Circuit affirmed the attribution to defendant of 67 grams of cocaine base as relevant conduct. Although defendant contended the informant’s testimony was not credible, the district court determined that he was a believable witness. U.S. v. Williams, 977 F.2d 866 (4th Cir. 1992).

5th Circuit holds defendant responsible for drugs involved in offense prior to his 18th birthday. (270) Defendant pled guilty to possession with intent to distribute 211 kilograms of marijuana. The district court found him responsible for 2,648.8 additional kilograms of marijuana as relevant conduct. Defendant argued that he could not be held responsible for conduct that occurred when he was under 18. His only authority on this point was that 18 U.S.C. § 5031 makes conduct occurring before a defendant reaches the age of majority subject to juvenile delinquency proceedings. The Fifth Circuit rejected this argument. The guidelines do not contain any prohibition, for relevant conduct purposes, on activities occurring during a scheme that spans from before a defendant reaches the age of majority until after he reaches the age of majority. The realm of charged conduct and the realm of relevant conduct for guidelines purposes are not coterminous. Moreover, any error was harmless. Even if the 1,587.6 kilograms of marijuana were erroneously ascribed to defendant because of his minority, he would still have been responsible for more than 1,000 kilograms for guidelines purposes. U.S. v. Hinojosa, 749 F.3d 407 (5th Cir. 2014).

5th Circuit upholds estimate of additional drug quantity. (270) Defendant was convicted of drug charges, based on his involvement in three different incidents in which police seized drugs and drug paraphernalia from a friend’s house, defendant’s mother’s home, and defendant’s brother’s apartment. Defendant argued that he should only have been held responsible for the 15.7 grams of crack that police actually seized in the three incidents. The Fifth Circuit upheld the district court’s finding that defendant was responsible for at least 28 grams of crack cocaine. Under the comments to § 2D1.1, a court may estimate drug quantity when the amount actually seized did not reflect the scale of the offense. The evidence here supported the court’s finding that defendant and his brother’s drug dealing greatly exceeded at least 28 grams. The district court relied on (1) a phone call where defendant’s brother talked about having “a zone” (an ounce, or 28 grams of crack cocaine); (2) a phone call during which defendant told his brother that if he kept going, he would “make a 100 stacks,” meaning $100,000; and (3) the $2,473 in cash that police found during one of the incidents. U.S. v. Harris, 740 F.3d 956 (5th Cir. 2014).

5th Circuit upholds reliance on co-conspirator testimony to establish drug quantities. (270) A jury found defendant responsible for over five kilograms of cocaine and over 1,000 kilograms of marijuana. However, based on the PSR, the sentencing court attributed to defendant 693.14 kilograms of cocaine and 15,235.22 kilograms of marijuana. The Fifth Circuit upheld the court’s drug quantity calculation. The district court may adopt facts contained in the PSR without further inquiry, if the facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence. Defendant did not present any rebuttal evidence, arguing only that because the witnesses against him were his co-conspirators, they were unreliable. However, the district court noted that there were many such witnesses, and their testimony was consistent. Moreover, in order to find defendant responsible even for the lesser amounts for which he was found guilty, the jury had to believe precisely the same testimony from precisely the same co-conspirators that supported the larger drug quantities the PSR attributed to him. U.S. v. Cantu-Ramirez, 669 F.3d 619 (5th Cir. 2012).

5th Circuit upholds sentencing based on fake drugs provided in reverse sting. (270) On five separate occasions, defendant and co-conspirators were paid money to provide a police escort for what they believed were shipments of 50-100 kilograms of cocaine. In fact, only a single one kilogram bag in each shipment contained real cocaine. The rest of the purported cocaine was fake. The Fifth Circuit held that a sentence for drug conspiracy may be based on fake drugs. For inchoate offenses, the quantity of drugs is based, not on the amount of drugs actually delivered, but on the amount agreed upon. See Note 12 to §2D1.1. Defendant was properly sentenced based upon the amount of cocaine he agreed to escort. The court did not err in considering the 300 grams of cocaine involved in dismissed counts. The guidelines provide that types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See § 2D1.1, note 12, and § 1B1.3(a)(2). U.S. v. Burke, 431 F.3d 883 (5th Cir. 2005).

5th Circuit rules marijuana found 500 miles away and nine months after end of crack conspiracy not relevant conduct. (270) Defendant complained about the inclusion of 178 kilos of marijuana found in his residence as relevant conduct for sentencing for a crack cocaine conspiracy. The marijuana seizure occurred in June 2001, about nine months after defendant’s last known participation in the crack conspiracy. More importantly, there was virtually no similarity between the marijuana seizure and the offense of conviction. In fact, other conspirators had previously declined to purchase marijuana from defendant, and there was no evidence of marijuana sales by or to any other conspiracy. The crack conspiracy centered in North Texas, while the marijuana was found in defendant’s residence at least 500 miles away. There was no evidence that the crack conspiracy and the marijuana seizure “shared a common source supplier, or destination.” The record also lacked a strong showing of regularity. The Fifth Circuit held that the seized marijuana should not have been considered for sentencing purposes under the relevant conduct standard. U.S. v. Booker, 334 F.3d 406 (5th Cir. 2003).

5th Circuit holds that November 1997 drugs were part of same course of conduct as April 1997 drugs. (270) In April 1997, defendant was arrested with 90 kilograms of marijuana. In November 1997, border patrol agents stopped Flores and Cervantes carrying 48 kilograms of marijuana. Cervantes told the border patrol that the drugs belonged to defendant, who had hired them to transport the marijuana. The Fifth Circuit agreed that the November 1997 offense was part of the same course of conduct as the April 1997 offense of conviction. Courts should consider “the degree of similarity of the offenses, the regularity of the offenses, and the time interval between the offenses” in determining whether they are sufficiently connected or related to be part of a “single episode, spree, or ongoing series of offenses.” When one of the factors is absent, a stronger presence of at least one of the other factors is required. In the present case, there was not a significant degree of similarity between the April 1997 and the November 1997 offenses, other than the common drug and delivery location. However, the temporal proximity was strong: the offenses occurred seven months apart. Finally, the third factor of regularity was present. Cervantes and Flores testified that defendant recruited them for trips in July, September and November. Thus, defendant was participating in drug transactions bi-monthly. U.S. v. Ocana, 204 F.3d 585 (5th Cir. 2000).

5th Circuit holds 1996 and 1997 incidents were not relevant conduct for 1992 marijuana offense. (270) In April 1992, defendant was arrested near the Mexico border carrying 0.1 kilograms of marijuana. In April 1996, police found 58 kilograms of marijuana in the tires of a truck driven by defendant’s girlfriend. In March 1997, the Border Patrol found 20.8 kilograms of marijuana in the gas tank of a truck the girlfriend was driving into the U.S. from Mexico. The Fifth Circuit held that the 1996 and 1997 incidents were not relevant conduct for the 1992 drug possession. The 1996/1997 offenses were not part of the same “common scheme or plan” as the 1992 offense. They did not share similar accomplices – defendant did not meet his girlfriend until 1995. Moreover, the modus operandi was different. The offenses were not part of the “same course of conduct.” The time interval between the 1992 and the 1996/1997 offenses was considerable, and there was no evidence of any drug activity in between them. Where the temporal proximity of the offenses is nonexistent, the other factors must be stronger. However, the only similarity between the 1992 offenses and the 1996/1997 offenses was that they both involved marijuana. There was no evidence of a common source, supplier or destination for the marijuana, and the modus operandi and the accomplices differed. U.S. v. Wall, 180 F.3d 641 (5th Cir. 1999).

5th Circuit attributes ephedrine tablets defendant ordered to produce methcathinone. (270) Defendant was convicted of manufacturing methcathinone and possessing ephedrine with intent to manufacture methcathinone. The district court found that defendant ordered and intended to use 39,000 tablets of ephedrine in the production of methcathinone, and sentenced him accordingly. The Fifth Circuit held that placing the ephedrine orders was properly considered relevant conduct because defendant intended to possess the ephedrine for the purpose of manufacturing methcathinone. The orders were placed in preparation for the offenses of which defendant was convicted. U.S. v. Shugart, 117 F.3d 838 (5th Cir. 1997).

5th Circuit considers uncharged and dismissed conduct where there was no objection. (270) Defendant pled guilty to possessing with intent to distribute 27.7 grams of cocaine. The district court held defendant accountable at sentencing for drugs that were the subject of a dismissed count, and drugs involved in uncharged conduct. The Fifth Circuit approved the consideration of the uncharged and dismissed conduct. The district court’s finding that the uncharged and dismissed conduct was relevant conduct was an implicit finding that these offenses were part of the same course of conduct or common scheme or plan. Defendant did not object at sentencing to the portions of the PSR that described the conduct involved in the dismissed counts. The district court adopted the PSR. This did not constitute plain error. U.S. v. Vital, 68 F.3d 114 (5th Cir. 1995).

5th Circuit approves use of drugs involved in acquitted conspiracy. (270) Defendant argued that it violated due process to attribute to him marijuana that was part of a conspiracy for which he was acquitted. The 5th Circuit found no merit in defendant’s claim. A district court may base a defendant’s sentence on acquitted conduct because the government need only establish sentencing facts (unlike elements of the crime) by a preponderance of the evidence. U.S. v. Carreon, 11 F.3d 1225 (5th Cir. 1994).

5th Circuit relies on PSR’s finding of relevant conduct where defendant offered no contrary evidence. (270) Defendant argued that pre-1988 drug quantities should not have been considered at sentencing because the quantities were not part of the same scheme or course of conduct as the instant offense. The 5th Circuit found no error. The PSR concluded that the pre-1988 conduct was relevant conduct. While defendant objected to the inclusion of these quantities, she offered no evidence that they were not part of the same course of conduct. The district court was therefore free to adopt the PSR without further inquiry. U.S. v. Rogers, 1 F.3d 341 (5th Cir. 1993).

5th Circuit includes package mailed to another’s home in defendant’s drug quantity. (270) Defendant was convicted on several drug counts. In computing defendant’s drug quantity, the district court included a package of drugs mailed to “J. Hicks” at another’s home. Defendant had never resided at the home. Nevertheless, the 5th Circuit approved inclusion of the quantity. Defendant knew a person who lived at the home, and had notified her that he was expecting a shipment of clothes at her address. Moreover, though defendant’s name was not J. Hicks, the father of defendant’s brother-in-law was named Johnny Hicks. Moreover, the shipment was postmarked from the greater Los Angeles area, defendant’s admitted source for drugs. Given the temporal proximity of the shipment to defendant’s crimes of conviction, the quantity was properly considered part of defendant’s “common scheme or plan.” U.S. v. Bryant, 991 F.2d 171 (5th Cir. 1993).

5th Circuit says consideration of relevant conduct did not violate plea agreement. (270) Defendant’s plea agreement provided that the government would not prosecute defendant for any offense other than the amphetamine offense to which he pled guilty. The 5th Circuit held that the district court’s consideration of additional quantities of phenylacetic acid as relevant conduct did not violate this agreement. Consideration of relevant conduct is not the equivalent of prosecuting the defendant for an additional offense. Nor did it violate the plea agreement to consider relevant but uncharged conduct in selecting a punishment within the statutory range. The phenylacetic acid was conduct relevant to defendant’s offense of possession of one pound of amphetamine. Defendants negotiated to purchase both substances, to be paid for and delivered at the same time and place. The fact that a co-defendant was arrested before he took actual possession of the phenylacetic acid did not change this fact. U.S. v. Hoster, 988 F.2d 1374 (5th Cir. 1993).

5th Circuit finds that uncharged drugs were part of same course of conduct. (270) The 5th Circuit affirmed that the district judge made sufficient factual findings to support the inclusion of uncharged drugs in defendant’s base offense level calculations. The court stated that because the 300 kilograms of cocaine (which were charged in the indictment) were part of a 529 kilogram load originally located in a nearby trailer, that was sufficient under section 1B1.3. Thus, the trial court implicitly found sufficient evidence to satisfy the “same course of conduct requirement” because all of the drugs were originally stored at the trailer. U.S. v. Mendoza-Burciaga, 981 F.2d 192 (5th Cir. 1992).

5th Circuit says co-conspirators’ methamphetamine was part of defendant’s amphetamine offense. (270) Defendant was initially charged with both methamphetamine and amphetamine offenses, but pled guilty to possessing only amphetamine with intent to distribute. Nonetheless, at sentencing the court held him accountable for distribution of over one kilogram of methamphetamine based on his active involvement in a conspiracy with two others. The 5th Circuit affirmed, finding sufficient evidence that the distribution of methamphetamine by the co-conspirators was part of the same course of conduct as defendant’s amphetamine conviction. A number of confidential informants independently linked defendant with drug distribution involving the co-conspirators. Police officers vouched for the informants’ reliability, and their statements were sufficiently corroborated. There was also circumstantial evidence linking defendant with the distribution scheme. Defendant did little to rebut the statements in his PSR regarding his involvement in the conspiracy. U.S. v. Young, 981 F.2d 180 (5th Cir. 1992).

5th Circuit affirms that 1987 drug transactions were relevant conduct despite 18 month hiatus. (270) Defendant was arrested in 1989 on marijuana trafficking charges. The 5th Circuit affirmed that marijuana ascribed by the district court to defendant prior to 1987 was relevant conduct despite defendant’s claim that he took an 18 month hiatus from drug trafficking prior to the instant offenses. Even if this hiatus occurred, it was inadequate in nature to make the previous conduct irrelevant for sentencing purposes. The evidence showed that defendant carried on a large-scale marijuana trafficking business for a number of years. The amount of marijuana involved in the 1989 transactions simply did not reflect the full scale of defendant’s conspiracy conviction. It was appropriate for the district court to consider similar prior transaction in calculating the applicable quantity of marijuana for sentencing purposes. U.S. v. Robins, 978 F.2d 881 (5th Cir. 1992).

5th Circuit affirms sentencing defendant on the basis of two separate transactions. (270) The 5th Circuit affirmed sentencing defendant based on his involvement in two transactions, one for 200 pounds of marijuana on October 9 and the other for 120 pounds of marijuana on October 19. Although defendant claimed he did not have the ability to purchase 200 pounds of marijuana on October 9, the undercover agent’s testimony showed that the deal did not go through only because the buyers would not release their money until they were given a sample of the marijuana. In addition, defendant was present when the agent called defendant’s co-conspirator and discussed both deals. The co-conspirator acknowledged to the agent that he and defendant had just discussed doing both deals. U.S. v. Montes, 976 F.2d 235 (5th Cir. 1992).

5th Circuit affirms estimate of drug purchases six months prior to defendant’s arrest. (270) Defendant was involved in the sale of five ounces of cocaine to an undercover agent. The 5th Circuit affirmed that defendant distributed a minimum of 30 ounces of cocaine in the previous six months, and that this was relevant conduct for sentencing purposes. A co-conspirator testified that she sold cocaine to defendant five or six times a month for six months, in quantities ranging from one to three ounces. A DEA agent testified that this amount was not consistent with personal consumption. Although there was evidence that defendant was indigent, this did not mean that defendant could not be a cocaine distributor. The prior drug purchases qualified as relevant conduct, because they passed the test of similarity, regularity, and temporal proximity. The distribution activities took place within six months of each other, they were of a continuous nature, the quantities involved were similar, and the source and type of the drug were the same. U.S. v. Bethley, 973 F.2d 396 (5th Cir. 1992).

5th Circuit refuses to review validity of relevant conduct provisions. (270) Defendants claimed for the first time on appeal that the sentencing commission exceeded its authority in drafting guidelines which allowed the consideration, for sentencing purposes, of conduct for which a defendant was not convicted. The 5th Circuit refused to consider this claim, since it was raised for the first time on appeal. Although the argument raised was a purely legal issue, failure to consider it would not result in “manifest injustice.” U.S. v. Sherbak, 950 F.2d 1095 (5th Cir. 1992).

5th Circuit affirms consideration of drugs that defendant said he had “on the street.” (270) Defendant was arrested after purchasing half a pound of methamphetamine from an undercover agent. Prior to his arrest, he told the agent that he had not wanted to buy a large quantity of the drug the week before because he had 17 ounces of methamphetamine “on the street” and had not collected all of the money from the sale of it. The 5th Circuit affirmed the district court’s consideration of the 17 ounces in determining defendant’s base offense level. Defendant’s claim that this statement was mere “puffery” was belied by another undercover agent who testified that he had information concerning “multiple ounces” sold by defendant. Defendant’s high sales volume was also supported by an informant who told the undercover agent that defendant sold from eight to 16 ounces of methamphetamine a week. It was also proper to hold defendant’s brother responsible for the 17 ounces, since the evidence supported a conclusion that the brother worked closely with defendant in the conspiracy. U.S. v. Kinder, 946 F.2d 362 (5th Cir. 1991).

5th Circuit finds no breach of plea agreement despite government’s inclusion of uncharged drugs. (270) Defendants contended that the government violated their plea agreement not to prosecute them for additional offenses by recommending inclusion of 17 ounces of methamphetamine not involved in the count of conviction. The 5th Circuit rejected this contention, ruling that the government kept its promise not to prosecute, because including the additional 17 ounces in sentencing was not equivalent to prosecution. The court also rejected defendants’ claim that their guilty pleas were rendered involuntary by the government’s alleged misrepresentation that their base offense level would be based on only 269 grams. The guilty pleas were voluntary because the district court informed both defendants of the maximum possible statutory punishment they faced. U.S. v. Kinder, 946 F.2d 362 (5th Cir. 1991).

5th Circuit upholds consideration of drugs outside offense of conviction. (270) The 5th Circuit upheld the district court’s calculation of defendant’s offense level based upon drug quantities outside the offense of conviction. A co-conspirator established that defendant and his co-conspirators trafficked in up to 66 kilograms of cocaine, well above the threshold the court needed to support its sentence. This was reliable evidence that the court could consider, and the court was not limited to the amount of cocaine actually seized. There also was testimony of a special agent who concluded that defendant picked up couriers carrying kilogram sacks of cocaine, which independently supported the district court’s finding. U.S. v. Thomas, 932 F.2d 1085 (5th Cir. 1991).

5th Circuit upholds consideration of drugs confiscated during defendant’s prior arrest. (270) In January, defendant was arrested on state charges after a search of his house uncovered approximately 860 grams of amphetamine and various laboratory equipment. Over five months later, defendant sold a small quantity of amphetamine to undercover agents, and agreed to sell to the agents an additional 28.35 grams of amphetamine. The 5th Circuit upheld calculating defendant’s offense level based on all of these amounts. A court may properly consider the amounts of drugs under negotiation in calculating relevant conduct. The amphetamine found earlier was also relevant. Although the search took place over five months earlier, the evidence demonstrated that defendant was engaged in a continuous amphetamine and distribution enterprise. U.S. v. Moore, 927 F.2d 825 (5th Cir. 1991).

5th Circuit upholds consideration of more cocaine than mentioned in plea agreement. (270) Defendant contended that the district court erred by considering more cocaine than the 27 grams to which he pled guilty as part of his plea bargain. The 5th Circuit rejected this argument. A court can consider quantities of drugs not specified in the count of conviction if they are part of the same course of conduct or common scheme or plan. The facts detailed in the presentence report established that defendant was involved in a conspiracy that distributed over 231 grams of cocaine. Although defendant objected to certain portions of the presentence report, he offered no evidence to rebut any of these facts. U.S. v. Mir, 919 F.2d 940 (5th Cir. 1990).

5th Circuit bases offense level on drugs outside the offense of conviction. (270) Defendant was charged with and pled guilty to the sale of two grams of amphetamines to a government agent. However, the presentence report concluded that defendant was responsible for the production of approximately 7,000 grams of amphetamines at a laboratory owned by the defendant. The 5th Circuit upheld the district court’s calculation of defendant’s offense level using the 7,000 grams. The district court properly based its findings on the presentence report, which in turn relied upon DEA investigative records, as well as information received from the state prosecution of defendant. U.S. v. Manthei, 913 F.2d 1130 (5th Cir. 1990).

5th Circuit upholds aggregating drug sales made by codefendants. (270) Defendant pled guilty to intentionally distributing cocaine in return for a dismissal of several related charges. The district court calculated defendant’s base offense level by aggregating all of the drug deliveries made by defendant and two codefendants. Defendant argued that this calculation had the effect of sentencing defendant for the offense of conspiracy to distribute cocaine, an offense different from the one to which she pled guilty. The 5th Circuit rejected this argument, finding that guideline § 1B1.3(a) permitted the district court to consider all conduct that was part of the same course of conduct as defendant’s conviction. The presentence report had concluded, based upon the investigation of the local police department, that defendant was involved in a common scheme or plan with her codefendants. This evidence had sufficient indicia of reliability for the district court to rely upon it in sentencing defendant. U.S. v. Marshall, 910 F.2d 1241 (5th Cir. 1990).

5th Circuit upholds using second degree murder guideline for defendant whose arson caused death. (270) Defendant pled guilty to interstate travel in aid of a racketeering enterprise, under which the sentencing guideline provides that the base offense level is the greater of six or the offense level applicable to the underlying crime in respect of which the travel was taken. Since the underlying crime was arson, the district court looked at the guideline for arson, which also provides a base offense level of six, except that if the defendant’s arson caused a death, a district court must apply the “most analogous guideline” from the guideline category of offenses against the person, if the base offense level is higher. The district court determined that the most analogous guideline was second degree murder, and sentenced defendant accordingly. The 5th Circuit held that the district court properly followed the guidelines. U.S. v. Paden, 908 F.2d 1229 (5th Cir. 1990).

5th Circuit holds that court need not accept, for sentencing purposes, stipulation as to amount of drugs involved. (270) Pursuant to a plea agreement, defendant and the government stipulated that the total amount of amphetamines involved in conspiracy was 440 grams. The district court declined to accept the stipulation, and sentenced defendant on the basis of additional drugs found on defendant’s person at his arrest and in his laboratory. The 5th Circuit, following its previous decision in U.S. v. Garcia, 902 F.2d 324 (5th Cir. 1990), held that a district court is not bound by the amounts charged in the indictment or stipulated by the parties at the time of the guilty plea. The court also held that matters relevant to sentencing need be shown only by a preponderance of the evidence. U.S. v. Woods, 907 F.2d 1540 (5th Cir. 1990).

5th Circuit rules dismissed counts were properly considered in departing upward from the guidelines. (270) When defendant pled guilty to selling marijuana the government dismissed three cocaine counts. The sentencing court considered the entire range of conduct in sentencing him to twelve months. The 5th Circuit affirmed the sentence. The January 15, 1988 Commentary to Section 1B1.3(a)(2) permits “quantities and types of drugs not specified in the count of conviction” to be included in determining the offense level if there is a common course of conduct or scheme. However, this section was not applicable to the defendant’s case because prior law allowed no such consideration. Nevertheless, the sentence was proper as an upward departure from the guideline range. The sentencing court properly considered the conduct underlying the dismissed counts in determining the seriousness of the conviction offense. Because the departure was not unreasonable, the sentence was affirmed. U.S. v. Taplette, 872 F.2d 101 (5th Cir. 1989).

6th Circuit says possession of drugs for personal use is not relevant conduct to possession with intent to distribute. (270) Defendant pled guilty to possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Defendant argued that the district court improperly included in its sentencing calculation drugs intended for his own personal use, not distribution. The district court found that if a defendant possesses drugs with intent to distribute some of them, and use the rest, then all of the drugs are attributable to the defendant as relevant conduct. The Sixth Circuit disagreed, holding that simple possession of illegal drugs for personal use is not conduct that is “relevant” to the charge of possession with intent to distribute a controlled substance. Amounts possessed for personal consumption should not be included when calculating the amount of drugs under the drug quantity table in U.S.S.G. § 2D1.1(c). The defendant bears the burden of production with respect to his personal use of the drug in question. The ultimate burden of persuasion rests, however, rests with the government. U.S. v. Gill, 348 F.3d 147 (6th Cir. 2003).

6th Circuit finds sufficient evidence to support drug quantity finding. (270) Defendant argued that the district court’s finding that he was accountable for 595.8 grams of crack was clearly erroneous because of (1) the alleged inconsistencies in Horton’s testimony, (2) the possibility that Horton fabricated his testimony to reduce his potential sentence, and (3) the presence of only $1,870 in defendant’s apartment, an amount that was insufficient to purchase 595.8 grams of cocaine. The Sixth Circuit found no error. The district court considered defendant’s allegations and determined that Horton was a credible witness. The amount of money found in defendant’s apartment had little probative value, because the government presented testimony that drug dealers often work on consignment. Finally, defendant overlooked several key pieces of evidence that supported the district court’s finding. Most importantly, Horton testified that he was acting pursuant to defendant’s instruction when he met the man who turned over the package containing the 595.8 grams of crack. Although defendant claimed that he limited his dealing to one-ounce quantities of crack, the entire shipment would have constituted only about 21 one-ounce parcels, which was not an overwhelmingly large inventory. Further, the presence of 600 plastic baggies with their corners cut out in defendant’s apartment, resulting in as many of 1200 drug-carrying containers, supported a finding that defendant was a high-volume drug dealer who had experience selling large quantities of drugs. U.S. v. Lucas, 282 F.3d 414 (6th Cir. 2002), overruled on other grounds by U.S. v. Leachman, 309 F.3d 377 (6th Cir. 2002).

6th Circuit says drugs possessed as juvenile may be considered relevant conduct. (270) On defendant’s first appeal the Sixth Circuit held that the district court could attribute to defendant drugs he possessed before February 15, 1994, when he was still a juvenile. However, prior to resentencing, the government voluntarily dropped count 55, the count involving the juvenile drug quantities. Nevertheless, the judge included the drug quantities involved in count 55 as relevant conduct. Defendant argued that because count 55 was dismissed, the district court was divested of subject matter jurisdiction to consider this activity because it occurred prior to his 18th birthday. He argued that the Federal Juvenile Delinquency Act (FJDA) precluded the exercise of subject matter jurisdiction over juvenile behavior that is not certified over to the district court by the Attorney General. The Sixth Circuit found this argument “creative, but not particularly compelling.” The FJDA divests the court of subject matter jurisdiction over uncertified behavior committed by juveniles. However, defendant was prosecuted as an adult for his adult behavior, and the district court had subject matter jurisdiction to hear any conduct that might be relevant to sentence defendant appropriately for that behavior. Even if the court lacked jurisdiction to prosecute defendant for his juvenile conduct as a separate crime, it did not lack jurisdiction to consider his juvenile behavior in calculating his sentence for a crime he committed as an adult. U.S. v. Hough, 276 F.3d 884 (6th Cir. 2002).

6th Circuit upholds reliance on audiotape of transaction to attribute drugs to defendant. (270) Defendant was convicted of a variety of drug trafficking charges. At sentencing, Officer Watts testified about a November 9, 1998 transaction involving defendant and an informant. Watts observed through binoculars and heard through an audio recording device defendant and the informant arranging the purchase of one-half ounce of crack for $500. The informant was told to return to defendant’s house in about 30 minutes. Watts was unable to see the transaction because he was unable to position himself at the surveillance point. However, he was able to hear the conversation between the informant and defendant through the audio recording device. Watts testified that he heard the voices of the informant, defendant and another conspirator as they attempted to weigh the cocaine. After hearing Watts, the videotape, and the audiotape of the November 9 transaction, the district court found by a preponderance of the evidence that defendant was involved, and attributed the 5.5 grams of crack to defendant. Although the qualify of the audiotape was poor, the Sixth Circuit upheld the district court’s reliance on the audiotape to determine that defendant was involved in the November 9 transaction. The court did not engage in speculation, but viewed all the available evidence. The court viewed the videotape, listened to the audiotape, and heard testimony from Watts that he heard defendant’s voice on the audiotape. U.S. v. Smith, 245 F.3d 538 (6th Cir. 2001).

6th Circuit counts drugs involved in acquitted conduct. (270) On April 24, 1996, defendant was in the car when Christian sold drugs to a confidential informant. Christian later testified that defendant was the person who gave her the drugs and dictated the price. Defendant was convicted of drug conspiracy and possession charges, but was acquitted of the April 24, 1996 distribution. The Sixth Circuit upheld the inclusion of the drugs involved in the acquitted distribution count. The district court did not clearly err in relying upon Christian’s testimony to conclude that the acquitted conduct actually occurred. Defendant also argued that the district court did not make a finding on the record that the conduct occurred. However, the district court adopted the PSR as its findings of fact and law. Because defendant did not object to the PSR, the district court was not on notice that it had to make more specific findings on the record. U.S. v. Ward, 190 F.3d 483 (6th Cir. 1999).

6th Circuit upholds consideration of drugs defendant sold before he turned 18 years old. (270) The district court attributed 682 grams of crack to defendant, of which 625 grams were based on sales he made in July 1993. Defendant argued that because in July 1993 he was only 17 years old, his juvenile status precluded the use of those sales. The Sixth Circuit held that the district court could properly consider drug sales defendant made before he turned 18 years old as relevant conduct. As long as the government successfully prosecutes a defendant for a crime that occurred after the defendant reached the age of majority, the district court may consider relevant conduct that occurred before the defendant reached the requisite age. U.S. v. Gibbs, 182 F.3d 408 (6th Cir. 1999).

6th Circuit finds insufficient information to support reliability of drug quantity hearsay. (270) The district court attributed 625 grams of crack to defendant based on statements made by Jackson at a post-trial private interview with the probation officer. At sentencing, the probation officer said that she spoke with Jackson the day before the sentencing hearing. However, the PSR, which was prepared months before, already included the 625 grams of crack. This inclusion was apparently attributable to information provided to the testifying probation officer by other probation officers. The Sixth Circuit ruled that there was insufficient information to support the reliability of the 625-gram figure. Although the use of hearsay testimony at sentencing is permissible, there must be some evidence of reliability. The district court should have elicited more information from the probation officer regarding her discussion with Jackson and other probation officers. At resentencing, the district court must elicit more information about Jackson’s original statements and the source of Jackson’s knowledge. U.S. v. Gibbs, 182 F.3d 408 (6th Cir. 1999).

6th Circuit holds that earlier transactions were part of same course of conduct. (270) Defendant, a long-time member of a street gang that sold drugs in Michigan, sold crack to an undercover agent in August 1996. A California crack dealer testified that in February 1993, defendant obtained four ounces of the dealer’s crack. The dealer returned to Michigan at least once a month, and on most days he saw defendant at the corner where the gang sold drugs, and that defendant was among the people going up to cars selling rocks of crack. Another witness testified that during 1993 and 1994 he was at this corner every other day and “every time” he went there he saw defendant shooting dice and selling rocks of crack to people who drove up. He also said that he sold defendant 4 1/2 ounces of crack in December 1994. In October 1995, police detained defendant and found five pieces of crack near where he was sitting. The Sixth Circuit held that the district court properly treated the earlier transactions as relevant conduct because there was strong evidence that the earlier transactions were part of the same course of conduct as the charged offense. The transactions all involved the same gang, the same type of drug, the same general location, and the same modus operandi. Defendant sold crack cocaine regularly, and the offenses included in the calculation of the sentence were all part of an ongoing series of offenses. U.S. v. Gilbert, 173 F.3d 974 (6th Cir. 1999).

6th Circuit says FBI agent’s sale of cocaine to informant was not part of relevant conduct. (270) Defendant, a police officer, sold drugs to an informant three time in July 1993. In November 1993, defendant agreed to “protect” the informant when the informant “purchased” 57.8 grams of cocaine from an FBI agent. In March 1994, defendant was arrested with .78 grams of cocaine. The Sixth Circuit held that November transaction that defendant “protected” was not relevant conduct. Defendant’s conduct was not in furtherance of the jointly undertaken criminal activity that occurred during the offense of conviction. Therefore, the 57.8 grams involved in the transaction should not have been included in the offense level calculations. Moreover, the government’s ability to manipulate defendant’s sentence by unilaterally determining the quantity of cocaine that it intended to “sell” itself on November 30 was deeply troubling. U.S. v. Russell, 76 F.3d 808 (6th Cir. 1996).

6th Circuit agrees that defendant was responsible for additional drugs. (270) Defendant asserted that the evidence tied him to only 2,943 kilograms of marijuana. The district court held him accountable for over 3000 kilograms. The Sixth Circuit agreed that defendant was responsible for the additional marijuana. The judge clearly spelled out his reasons for concluding that defendant was responsible for more than 3000 kilograms. Moreover, defendant admitted that he was directly linked to 2943 kilograms. To reach 3000 kilograms, less than 300 grams of cocaine or 3 grams of cocaine base would be necessary. Given the extent of defendant’s involvement in drug distribution, “the district court judge would have had to close his eyes” to attribute less than 3000 kilograms to defendant. U.S. v. Ward, 68 F.3d 146 (6th Cir. 1995).

6th Circuit rejects finding that defendant grew an additional 200 marijuana plants in the past. (270) Police seized 802 marijuana plants from defendant’s house, which contained a sophisticated marijuana growing operation. Defendant admitted to having grown marijuana for the last seven or eight years. Based on his past conduct, the district court found that defendant had produced “an absolute minimum” of 200 plants over the last eight years. It then added these 200 plants to the 800 seized plants as relevant conduct. The 6th Circuit reversed, finding the court’s determination that defendant grew an additional 200 plants was not supported in the record. Although 25 plants per year might be low for such a sophisticated operation, there was unrefuted evidence that defendant had only recently started his indoor operation, and that his sophisticated equipment was only a few months old. Thus, the size of his operation at the time of arrest could not be manipulated to infer a certain amount of past success, when there was “not a scintilla of evidence” to support such a finding. U.S. v. Zimmer, 14 F.3d 286 (6th Cir. 1994).

6th Circuit considers drug involved in conduct underlying acquitted counts. (270) Defendant was convicted of distributing about 1.69 grams of crack, and acquitted of counts involving 59 grams of crack. The 6th Circuit held that the district court properly considered at sentencing the 59 grams involved in the acquitted counts. The acquittal did not require the district court to ignore the otherwise relevant conduct. In order to convict at trial, the government bears the burden of proving the elements of the offense beyond a reasonable doubt. However, the burden of proof at sentencing is the lesser preponderance of the evidence standard. U.S. v. Lloyd, 10 F.3d 1197 (6th Cir. 1993).

6th Circuit upholds aggregation of drug quantities alleged in dismissed counts. (270) The 6th Circuit affirmed the district court’s consideration of 28.4 grams of cocaine involved in a count which had been dismissed against defendant. Although defendant specifically denied possession or distribution of the 28.4 grams, his denial was directly contradicted by the evidence. Not only did government surveillance units witness the transfer of the cocaine from defendant to his middleman, but defendant was further identified as the source of the cocaine when the middleman sold the cocaine to the government informant. U.S. v. Gibson, 985 F.2d 860 (6th Cir. 1993).

6th Circuit, en banc, upholds consideration of larger quantity of marijuana plants than specified in indictment. (270) Defendant was convicted of manufacturing 100 or more marijuana plants, but was sentenced on the basis of possessing the 883 plants recovered from the marijuana field. The 6th Circuit rejected defendant’s claim that it was improper to sentence him on the basis of a larger quantity than specified in the indictment. The guidelines contemplate the consideration of drug quantities exceeding the amount listed in an indictment where the larger quantity is part of the criminal activity or transaction. Moreover, the indictment alleged 100 or more marijuana plants. The 883 plants on which defendant’s sentence was based was therefore consistent with the quantity charged in the indictment. U.S. v. Morrow, 977 F.2d 222 (6th Cir. 1992) (en banc).

6th Circuit reverses district court’s failure to sentence defendant for 2500 kilograms he conspired to import. (270) The district court found that defendant had conspired to import and distribute 2500 kilograms of cocaine, but sentenced him on the basis of only 2.5 to 3 kilograms. The court did this because most of defendant’s co-conspirators, who were convicted and sentenced nine months earlier, were only sentenced on the basis of the smaller quantity of cocaine. At the time they were sentenced, the government was unable to prove the conspiracy to import and distribute the larger quantity of cocaine. The 6th Circuit reversed, holding that the guidelines do not give a district court discretion to ignore its findings concerning a defendant’s relevant conduct. To the extent the district court actually was departing downward in order to equalize the sentences of co-conspirators, the downward departure was unjustified. Under 6th Circuit law, a district court may not engage in “equalization departures.” U.S. v. Gessa, 971 F.2d 1257 (6th Cir. 1992) (en banc).

6th Circuit affirms that drugs purchased from different source for distribution in same city were relevant conduct. (270) Defendant contended that drug purchases he made in St. Louis were unrelated to the drug conspiracy for which he was convicted, and thus could not be considered relevant conduct. The 6th Circuit held that even though the drugs were purchased from a different source, they were relevant conduct because they were procured for the same purpose or scheme as the offense of conviction: for distribution in Cincinnati by defendant and his confederates. Judge Cohn dissented. U.S. v. Ushery, 968 F.2d 575 (6th Cir. 1992).

6th Circuit okays use of defendant’s statements made during presentence interview. (270) Defendant was arrested in possession of 135 grams of crack cocaine. Because the court urged defendant to cooperate fully in the probation officer’s investigation, defendant admitted to the probation officer that he had made four prior crack sales in the two months prior to his arrest. Based upon this information, the district court determined that defendant was involved with a total of 985.5 grams of crack cocaine. The 6th Circuit rejected defendant’s objection to the use of the information he provided to his probation officer. Such uncharged drugs were clearly relevant conduct under the guidelines, and thus the district court was authorized to consider the uncharged drugs in determining defendant’s base offense level. Prior Circuit precedent has upheld the use of information that a defendant provides to his probation officer during a presentence interview. Judge Jones concurred in the result because the court was bound by precedent, but disagreed with that precedent. U.S. v. Wilson, 954 F.2d 374 (6th Cir. 1992).

6th Circuit upholds consideration of relevant conduct despite defendant’s acquittal. (270) Defendant contended that his acquittal of one drug count barred the district court from considering this conduct in determining his base offense level. The 6th Circuit rejected this argument. In order to convict at trial, the government must prove the elements of the offense beyond a reasonable doubt, while the burden of proof at sentencing is the lesser preponderance of the evidence. Here, there was sufficient evidence of the prior drug involvement. Defendant supplier provided extensive testimony regarding defendant’s involvement in drug trafficking and the amount of cocaine he supplied to defendant. U.S. v. Moreno, 933 F.2d 362 (6th Cir. 1991).

6th Circuit upholds inclusion of drugs not charged in the indictment. (270) Defendant contended it was improper to sentence him on the basis of the 883 marijuana plants actually recovered by authorities, rather than the 100 plants charged in his indictment. The 6th Circuit rejected this contention. The guidelines clearly permit the consideration of drugs not specified in the count of conviction if they were part of the same course of conduct or part of a common scheme. U.S. v. Morrow, 923 F.2d 427 (6th Cir. 1991), reaffirmed on rehearing en banc, 977 F.2d 222 (6th Cir. 1992) (en banc).

6th Circuit holds that guidelines require consideration of uncharged relevant conduct. (270) Defendant was charged with and pled guilty to conspiring to distribute 1.25 ounces of cocaine between March and May 1988. Defendant admitted to his probation officer that he purchased about an ounce a week during the period from February 1987 to May 1988. The district court used the cocaine defendant sold over this 20-month period to calculate defendant’s sentence. The 6th Circuit held that the guidelines require a court to consider uncharged relevant conduct in setting a defendant’s base offense level, and thus, the district court’s inclusion of the cocaine defendant sold over the 20-month period was not clearly erroneous. Judge Martin concurred, but expressed concern that the guidelines permitted too expansive a definition of “relevant conduct.” Chief Judge Merritt dissented on the grounds that aggregating such unindicted, unconvicted crimes violated due process. U.S. v. Miller, 910 F.2d 1321 (6th Cir. 1990).

6th Circuit holds that consideration of uncharged relevant conduct may violate the terms and spirit of the plea agreement. (270) Defendant pled guilty to one count of drug dealing and an “interstate travel” count was dropped. He was not charged with conspiracy. Part of the plea bargain stated that the defendant would not be charged with other drug offenses. The District Court accepted the plea but set the offense level by aggregating quantities of drugs which the PSI report alleged the defendant had distributed prior to the date set forth in the indictment. In a split decision, the 6th Circuit vacated and remanded for resentencing with instructions that the District Court indicate whether it had accepted that portion of the plea agreement and whether aggregation of uncharged quantities may violate the “spirit and intention of the plea agreement”. Specifically, the District Court should “consider whether the plea agreement is in any way overridden by consideration of prior conduct which was not the subject of any criminal charge and occurred prior to the effective date of the guidelines.” U.S. v. Silverman, 889 F.2d 1531 (6th Cir. 1989).

6th Circuit clarifies November 1987 relevant conduct guidelines to include conduct in dismissed counts. (270) The Sixth Circuit held that it was error for the district court to refuse to consider quantities of drugs specified in dismissed counts when sentencing a defendant for a drug offense which occurred between November 1, 1987 — the effective date of the guidelines — and the January 15, 1988 amendments. Although not applicable, the January 15th amendments clarified the prior definition of relevant conduct, and supported the government’s interpretation of the prior guidelines. Thus, the case was remanded for resentencing subject to the condition that the dismissed counts be supported by “some minimal indicum of reliability beyond mere allegation.” U.S. v. Smith, 887 F.2d 104 (6th Cir. 1989).

6th Circuit holds drug offense levels may be determined based upon uncharged quantities. (270) The 6th Circuit held that under the applicable guidelines and relevant conduct sections (1B1.2(a) and 1B1.3), a sentencing court may consider quantities of drugs not charged in the offense of conviction if they are part of the same course of conduct or a common scheme or plan. Here, there was no error in the calculation of a cocaine dealer’s offense level. U.S. v. Ykema, 887 F.2d 697 (6th Cir. 1989).

7th Circuit says judge’s drug quantity finding did not violate Alleyne. (270) Defendant pled guilty to drug charges, and admitted responsibility for 700 grams of heroin. The district court held him accountable for more than three kilograms of the drug. On appeal, based on Alleyne v. U.S., 133 S.Ct. 2151 (2013), defendant argued that the court violated his Fifth and Sixth Amendment rights, since the 700 grams he admitted responsibility for established a statutory minimum of five years, 21 U.S.C. § 841(b)(1) (B)(i), while the quantity found by the district court supported a statutory minimum of ten years, see § 841(b)(1)(A)(i). The Seventh Circuit found no error. There was no indication that the district judge thought her sentencing discretion was cabined by a higher statutory minimum than the five-year minimum supported by the 700 grams of heroin admitted by defendant. Thus, defendant’s position was foreclosed by U.S. v. Hernandez, 731 F.3d 666 (7th Cir. 2013). The district court did not err by calculating a greater drug quantity solely for purposes of determining defendant’s guideline range without requiring proof beyond a reasonable doubt. U.S. v. Valdez, 739 F.3d 1052 (7th Cir. 2014).

7th Circuit considers illegal prescriptions to additional patients as relevant conduct. (270) Defendant, a nurse practitioner, was charged with prescribing a variety of controlled substances, including oxycontin, vicodin, and fentanyl, to nine people, each of whom she knew did not have a legitimate need for the medications. She pled guilty to one count, and the remaining were dismissed. However, at sentencing, the district court included as relevant conduct prescriptions written to four patients. The Seventh Circuit affirmed. The government is required to address every patient to whom a medical professional defendant has written an allegedly unlawful prescription. The government is not required to systematically discuss every single prescription that every single patient received. Here, the government presented ample evidence to prove that the prescriptions had no legitimate medical purpose and were written outside the usual course of appropriate medical practice. The court did not improperly mix the criminal and civil standards of liability. It is impossible to sensibly discuss whether a doctor was acting outside the usual course of professional practice without mentioning the usual standard of care. U.S. v. Rosenberg, 585 F.3d 355 (7th Cir. 2009).

7th Circuit rejects sentencing manipulation and sentencing entrapment claims. (270) On September 30, defendant sold about 25.4 grams of crack cocaine to a government informant. On October 7, he sold the same individual about 26.4 grams of crack. He argued that the government had enough evidence to convict him after the first controlled buy, and that the purpose of the second buy was merely to increase his sentence. He argued that he was a small-time, “dime-bag” dealer who was not predisposed to sell the quantity of drugs requested by the informant. The Seventh Circuit rejected defendant’s claims of sentencing manipulation and sentencing entrapment. This circuit does not recognize the sentencing manipulation doctrine. To establish sentencing entrapment, the defendant must show that he lacked a predisposition to commit the crime, and that his will was overcome by “unrelenting government persistence.” Defendant had a history of selling crack, which he admitted to doing for a number of years prior to his arrest. He presented no evidence that the government was unrelenting in its attempts to purchase higher quantities of drugs than he usually sold, or engaged in inducements that were otherwise extraordinary. U.S. v. Turner, 569 F.3d 637 (7th Cir. 2009).

7th Circuit finds insufficient evidence that additional drug prescriptions were illegal. (270) Defendants were doctors convicted of unlawfully distributing OxyContin, a Schedule II narcotic often prescribed to treat chronic pain. Although a jury had acquitted them of most of the charged counts, the district court found that defendants were guilty of all of the conduct in a government-produced spreadsheet that listed the prescriptions in 98 patient files. The Seventh Circuit reversed, finding insufficient evidence that the prescriptions listed in the spreadsheet were illegal. The court may have improperly relied on the civil standard-of-care in making its relevant conduct determination. Absence of medical necessity, while the civil standard, falls short of the criminal standard for prescribing outside the scope of medical practice. The court adopted the government’s position that every prescription in all 98 files was unlawful. However, the court’s comment that “numerous files” contained evidence suggesting illicit prescribing was not sufficient to put every pill in all 98 files into the relevant conduct calculation. The court failed to address evidence tending to suggest a legitimate medical purpose for several prescriptions in the 98 files. U.S. v. Chube, 538 F.3d 693 (7th Cir. 2008).

7th Circuit holds that ten drug transactions committed over nine-year period were relevant conduct. (270) Defendant was arrested after selling two ounces of crack to a confidential informant. He argued that it was improper for the district court to hold him accountable for ten additional drugs transactions over a nine-year period, the inclusion of which increased his offense level from 32 to 38 and nearly doubled his sentencing range. The Seventh Circuit found no error in the inclusion of the ten drug transactions. While gaps of time between an offense and the charged offense may suggest that the behavior is not part of the same course of conduct, there were no such gaps here. Defendant’s drug trafficking was more or less consistent over the nine-year period in question. Although defendant’s buyers did not necessarily have relationships with each other, this was irrelevant. The unifying factor here was defendant and his unbroken series of sales to lower level drug dealers. Although the offense of conviction involved crack and some of the prior offenses involved powder cocaine, this distinction was immaterial. Non-charged offenses need not involve the same type of drug as the offense of conviction to be considered relevant conduct. U.S. v. White, 519 F.3d 342 (7th Cir. 2008).

7th Circuit holds that large drug purchases made eight months before small drug sales were not relevant conduct. (270) On two occasions, in February and March of 2003, defendant sold small quantities of cocaine to a woman named Beu. The two sales involved only 12.1 grams of cocaine. At trial, the district court heard evidence that defendant purchased almost 500 grams of cocaine from a man named Corral, between March 2001 and June 2002. The district court found that much of this activity was relevant conduct, and held defendant accountable for at least 489 grams of cocaine. The Seventh Circuit held that the government did not meet its burden of proving the prior drug purchases were relevant conduct to the instant drug sales. There was an eight-month gap between defendant’s last dealings with Corral in June of 2002 and the specific sales he made to Beu in February and March of 2003. Without temporal proximity, the government needed a strong showing regarding other course of conduct factors, such as regularity or similarity of acts. The amounts of cocaine in the Corral and Beu transactions did not match. Defendant irregularly purchased relatively large amounts of cocaine from Corral but sold only small amounts to Beu. He purchased from Corral in Aurora but sold to Beu in Chicago. The fact that a defendant engages in other drug transactions is not, by itself, sufficient justification for treating those transactions as part of the same course of conduct or common scheme or plan when making a relevant conduct determination. U.S. v. McGowan, 478 F.3d 800 (7th Cir. 2007).

7th Circuit holds that prior trips by other drug couriers were relevant conduct. (270) Defendant smuggled drugs into the U.S. from Kenya by swallowing numerous pellets of heroin and taping other pellets to her body under her clothing. The government offered evidence that defendant had recruited and trained other Kenyan women to work as heroin couriers. They also offered evidence that defendant herself smuggled heroin into the U.S. on six prior occasions. The district court found that defendant’s prior trips, and several prior trips by the couriers defendant trained, were relevant conduct. The Seventh Circuit affirmed. The factors identified by the court connected the prior heroin importations to the charged importation. Defendant recruited the couriers and trained them how to swallow heroin pellets. She provided heroin, airline tickets, directions, and destination addresses. Defendant and her couriers had identical destination addresses as well. Further, the proximity of the trips, involving the same drug from the same country, indicated a common scheme. U.S. v. Ngatia, 477 F.3d 496 (7th Cir. 2007).

7th Circuit holds that cooking of crack cocaine was not relevant conduct to possession of marijuana. (270) While investigating the Latin Kings street gang, police searched defendant’s home and found marijuana. He pled guilty to possession of marijuana with intent to distribute. The probation department reported that defendant had previously been given cocaine by one of his co-defendants to be cooked into crack, and that six months before the marijuana was found in his home, defendant had fired a gun at members of another gang in retaliation for his brother’s murder. The judge treated the crack and gun episodes as relevant conduct, and sentenced defendant to 60 months, the statutory maximum for the marijuana offense. The Seventh Circuit held that crack and gun incidents were not relevant conduct to defendant’s possession of marijuana. Although the government claimed that defendant’s marijuana, crack, and gun offenses were all part of the Latin Kings, there was negligible evidence that defendant was a member of Latin Kings. Moreover, even if defendant were a member, it did not follow that his crack cocaine and gun activities were acts done on behalf of the gang. And, even if it was part of his work as a member of the gang to cook cocaine, it did not follow that the cooking or the shooting was part of the same course of conduct as selling marijuana. The government confused gang membership with membership in a conspiracy. The three acts appeared to be unrelated to each other. U.S. v. Avila, 465 F.3d 796 (7th Cir. 2006).

7th Circuit holds that 1000-month sentence for heroin dealer was unreasonable. (270) Defendant was the member of a gang that sold crack cocaine from a housing project in Chicago. Defendant was not directly involved in the crack-dealing scheme. His main territory was in “K-Town,” several miles to the west, and his primary product line was heroin. However, at one point, he received permission to deal heroin out of the project. During one eight-week period in 2000, defendant sold about eight kilograms of heroin from this new location. In the current case, he pled guilty to five counts relating to heroin sales he made in 2002 from his house in K-Town. The district court imposed a 1000-month sentence, holding him responsible not only for the 110 grams of heroin involved in the 2002 counts of conviction, but also the eight kilograms of heroin he sold in 2000 at the housing project and the more than 15 kilograms of crack sold from the housing project. The Seventh Circuit found the 1000-month sentence was unreasonable. The connection between 2002 heroin sales and the sales counted by the court as relevant conduct was tenuous. The counts of conviction involved five sales of heroin in K-Town in the summer of 2002, two miles away from housing project and two years after defendant’s alleged involvement with the conspiracy there. The crack sales from the housing project were even more tenuously related to defendant’s 2002 heroin sales. Although defendant’s 2000 heroin sales may have benefited from the security and other organizational structure already in place there, this at most made the crack sales relevant conduct to the heroin sales that took place there in 2000. It did not make it relevant to defendant’s sale of heroin in K-Town in 2002. At most, defendant was responsible for about eight kilogram of heroin, which would result in a guideline range of 360 months to life. U.S. v. Bullock, 454 F.3d 637 (7th Cir. 2006).

7th Circuit holds that defendant’s incriminating statement was sufficiently reliable to consider relevant conduct. (270) Eleven hours after his arrest, defendant made a statement to police in which he admitted that he had sold certain quantities of crack cocaine in the past. Based on his admission of relevant conduct, the district court held him accountable for more than 1.5 kilograms of crack. Defendant challenged the reliability of his statement, offering witnesses who testified that defendant may have been suffering from heroin withdrawal and desperate for more drugs at the time he made his statement. The Seventh Circuit upheld the court’s reliance on defendant’s statement. Defendant’s heroin addiction did not make his statement inherently unreliable. Defendant did not testify on his own behalf, and the officers who arrested defendant and took his confession testified that he did not appear to be going through withdrawal at the time he confessed. They further stated that while defendant was willing to incriminate himself, he was unwilling to give the name of his drug supplier to the interrogating officer. The district court concluded that while the testimony offered by defendant was helpful in explaining the progression of opiate withdrawal, it did not override the officers’ testimony that defendant did not appear to be going through withdrawal at the time he made his statement. U.S. v. Johnson, 342 F.3d 731 (7th Cir. 2003).

7th Circuit holds that prior crack sales were relevant conduct to current powder sales. (270) Defendant was arrested in 1999 after selling cocaine from his home to three different confidential sources. He admitted to selling crack cocaine for a period of two months in 1997, but claimed he stopped selling crack after one of his customers had a bad reaction to it. The Seventh Circuit upheld the district court’s finding that defendant’s 1997 crack dealings were relevant conduct for sentencing purposes. The crack dealings were similar for several reasons, including the fact that comparable quantities of drugs were sold, all sales were made from defendant’s residence, and defendant was involved (either actively or passively) in the cooking of powder cocaine into crack at his residence. The fact that the guidelines treat powder and crack cocaine differently for sentencing purposes in no way prevented the two substances from being included in one course of conduct. The transactions were sufficiently regular, since defendant sold a quarter ounce of crack per week over a two-month period in 1997, followed by a similar monthly distribution of powder cocaine for a seven-month period. There was a sufficient temporal proximity between the crack and cocaine sales. The lapse in defendant’s drug dealings was caused by the arrest of defendant’s supplier rather than “any crisis of conscience.” U.S. v. Sumner, 325 F.3d 884 (7th Cir. 2003).

7th Circuit holds defendant accountable for additional quantity he admitted during negotiations with informant. (270) Defendant negotiated to sell two kilograms of powder cocaine to a confidential informant. During the negotiations, which were taped and monitored by police, defendant stated that he had recently purchased five kilograms of cocaine but returned the drugs because they were of poor quality. Defendant added that he was expecting a replacement shipment. The Seventh Circuit upheld the district court’s decision to hold defendant responsible for the five kilograms of cocaine that he admitted possessing during his negotiations with the informant. A court may rely on a defendant’s admissions to hold that defendant responsible for a certain quantity of drugs, and there was no reason why defendant’s admission should be treated differently. His ability to obtain a large quantity of drugs was corroborated by the fact that he was arrested in possession of one kilogram. The government’s source informed police that defendant had been moving as much as three to five kilograms per month over a long period of time. Because police were not able to document fully the entirety of defendant’ trafficking, the district court did not sentence defendant based upon the quantity (no less than 60 kilograms) recommended in his PSR. This statement further corroborated defendant’s intent and ability to deal in multi-kilogram quantities of cocaine. U.S. v. Corral, 324 F.3d 866 (7th Cir. 2003).

7th Circuit holds that prior drug offense was not relevant conduct. (270) Defendant pled guilty to distributing more than five grams of crack cocaine. The district court ordered half of his federal sentence to be imposed consecutively to his sentence on an earlier state-law drug charge. The Seventh Circuit held that the district court did not err in holding that the state drug offense was not relevant to the federal offense, but rather was properly considered as a wholly separate conviction. Therefore, the district court had the discretion to order half of defendant’ sentence to run consecutive to his state sentence. The two criminal episodes lacked temporal proximity. The state drug conspiracy took place in mid to late 1999, while defendant’s sale of crack in the federal offense occurred in October 2000, a span or more than one year between the offenses. Second, the nature of the two offenses was different. The state drug conspiracy involved powder cocaine, while the federal charge involved an ounce of crack. Third, the two offenses had different modus operandi. The state conspiracy involved defendant’s cooperation with co-conspirators in a scheme to distribute large amounts of drugs to numerous individuals, while the current federal offense involved defendant apparently acting alone to make an individual drug sale. U.S. v. Johnson, 324 F.3d 875 (7th Cir. 2003).

7th Circuit affirms drug quantity finding supported by testimony of four drug associates. (270) Defendant challenged the district court’s finding that 1.5 kilograms or more of crack were attributable to him. However, the court’s relevant conduct finding had no impact on defendant’s sentencing range because he was a career offender. Moreover, the testimony of defendant’s four drug associates clearly established defendant’s possession and distribution of many multiples of the 1.5 kilograms necessary to support his offense level. For example, Malone testified that he bought .25 to .50 kilograms of crack per week from defendant for five months, which in total would equal at least five kilograms of crack. Simpson explained that he processed about .25 to .50 kilograms of crack per week for defendant for seven months, totaling at least seven kilograms of crack. Based on first-hand observation, the district court found all four witnesses’ testimony to be internally consistent and credible. Accordingly, the Seventh Circuit ruled that the district court did not err in making its relevant conduct findings. U.S. v. Partee, 301 F.3d 576 (7th Cir. 2002).

7th Circuit holds that PSR’s summary of police report did not support drug quantity finding. (270) The district court attributed 65 ounces of cocaine to defendant based on Jobe’s statement to police that defendant bragged to him about selling cocaine at strip clubs five nights a week for over a year. However the police report of Jobe’s statement was not before the court at sentencing. The court relied on the PSR’s summary of the agent’s report, which stated only that “Jobe believed that [defendant] went to the strip clubs at least 5 days a week. [Defendant] claimed to have sold cocaine to the strippers in this fashion for over one year.” On defendant’s first appeal, U.S. v. Noble, 246 F.3d 946 (7th Cir. 2001), the Seventh Circuit rejected defendant’s drug quantity challenge, believing that the frequency and duration of the sales was supported by Jobe’s testimony at trial. On his second appeal, the Seventh Circuit acknowledged that it had been mistaken. While Jobe did testify about defendant’s sales when he accompanied defendant to strip clubs, there was no testimony about sales when he did not. Jobe did not testify at trial or sentencing to the admissions purportedly made by defendant about quantities he sold when Jobe was not with him; nor did the agent to whom Jobe made the statement testify to the accuracy of the PSR summary or the agent’s written report of his interview with Jobe. The only evidence was the statement in the PSR that Jobe “believed” that defendant sold a certain amount of drugs at strip clubs, with no indication from the PSR or anything in the record of the source or reliability of that belief. Under these circumstances, the district court’ calculation of 65 ounces was clear error. U.S. v. Noble, 299 F.3d 907 (7th Cir. 2002).

7th Circuit holds that defendant’s personal attempt to acquire drugs did not require “reasonably foreseeable” analysis. (270) Defendant supplied two kilograms of cocaine to Marin and Jose for $42,000. Marin and Jose agreed to pay defendant after they resold the cocaine later that day. However, when Jose met with the buyer, he was robbed of the cocaine. Marin repeatedly told Jose that defendant would harm Jose’s family unless Jose returned two kilograms of cocaine or $42,000 to defendant. Jose began working for the FBI. Jose gave Marin two kilograms of cocaine that had been supplied to Jose by the government. Defendant was arrested after Marin gave him the cocaine. The district court held defendant accountable for four kilograms of cocaine – the two kilograms he initially supplied to Marin and Jose, and the two kilograms he accepted as replacement. Defendant argued that a four-kilogram quantity was not reasonably foreseeable to him because the conspiracy he entered into with Marin and Jose was for the sale of two kilograms. However, defendant went to meet Marin for the specific purpose of accepting delivery of two kilograms of cocaine. Defendant personally committed the wrongful act. Thus, the Seventh Circuit found that the district court properly attributed the two kilograms to defendant as relevant conduct under § 1B1.3(a)(1)(A) without resorting to the “reasonably foreseeable” analysis of § 1B1.3(a) (1)(B). U.S. v. Gutierrez-Herrera, 293 F.3d 373 (7th Cir. 2002).

7th Circuit upholds reliance on hearsay to support drug relevant conduct. (270) Defendant challenged three separate quantities of drugs found by the court to be relevant conduct. The Seventh Circuit found no error. The 10,000 pounds added as a result of Czajka’s testimony was proper because the drugs were part of the same common scheme and plan as the charged offense. The later transactions occurred immediately after this transaction, involved the same dealers, and used the same method (delivery by semi-truck). The court properly attributed 12,000 pounds based on Lopez’s testimony that defendant had told him that he regularly moved large quantities of marijuana – two to three thousand pounds every two to three months. The court found Lopez credible despite vigorous cross-examination. The 75,000 gleaned from Fernandez’s proffer was more troubling because the evidence the district court relied on was hearsay. However, although the 75,000 pounds accounted for a large portion (77%) of the total drug quantity, that amount added only two points to his offense level, and increased his guideline range from 235-293 months to a range of 292-365 months. Defendant could have received the same 293-month sentence that he actually received without taking into account the 75,000 pounds. The mere fact that the court relied on hearsay to calculate a higher offense level was not clear error. U.S. v. Martinez, 289 F.3d 1023 (7th Cir. 2002).

7th Circuit rules that court made adequate findings to support use of relevant conduct. (270) Defendant objected to the unsubstantiated proffer statements upon which the PSR and the district court relied in assessing his relevant drug conduct. He also claimed that the court did not state and support its findings that the uncharged conduct bore the necessary relationship to the offense of conviction. The Seventh Circuit found no error. The judge very carefully considered both the factual and legal basis for his findings on relevant conduct. The uncharged conduct involved the same drug as the charged conduct, and occurred generally over the same time frame as the charged conduct. The court accepted the government’s portrayal of the evidence in support of the relevant conduct with one exception, refusing to include the vast majority of cocaine that Smith attributed to defendant. The court properly found that the other amounts detailed in the PSR were sufficiently related to the offense of conviction. Defendant was continuously involved in cocaine sales throughout the 1990s, except for a period of time he was incarcerated, and the sales mainly took place in the same area of Illinois. The court explicitly stated how it calculated drug quantity, which testimony it was accepting, which it was rejecting, and why. Although the court did not expressly state that the events were related in time, place and persons involved, its discussion of the evidence demonstrated that these factors were well satisfied. U.S. v. Williams, 272 F.3d 845 (7th Cir. 2001).

7th Circuit holds that court plainly erred in failing to make relevant conduct findings. (270) Defendant was arrested after selling cocaine to a confidential informant on three separate occasions in September 1999. He told an FBI agent that he had been selling cocaine for some time. Although he later disputed the dates and amounts of his admitted crack dealing, the district court ultimately found that defendant had told the agent he sold two ounces of crack in the winter of 1997. The district court held him accountable for the 9.4 grams of powder cocaine he sold to the informant and an additional 57.6 grams of crack. The law was clear at the time of defendant’s sentencing that when a district court aggregates drug quantities arising from charged or uncharged relevant conduct, the court should explicitly state and support, either at the sentencing hearing or preferably in a written statement of its reasons, its finding that the unconvicted activities bore the necessary relation to the convicted offense. The Seventh Circuit held that the district court plainly erred by not explaining the connection between the uncharged crack sales and the offense of conviction. The court adopted the PSR in its entirely with the exception of a part relating to acceptance of responsibility, and made no express finding on the record that the crack sales were part of the same course of conduct or common scheme or plan as the sales of cocaine to the informant. There was no discussion of the factors of similarity, regularity, or temporal proximity. U.S. v. Sumner, 265 F.3d 532 (7th Cir. 2001).

7th Circuit relies on drug ledger and buyers’ testimony to hold defendant accountable for additional drugs. (270) Defendant was arrested after selling a total of 5.2 grams of crack to a confidential informant. At trial, an FBI agent testified that, based on the drug ledgers seized from defendant’s residence, defendant had produced a minimum of 28,583 grams of crack cocaine. The agent based his conclusion on the terminology, weights and price per unit he noted in the records and the overall appearance of the documents. In addition, the government produced a number of witnesses who testified that they had purchased various amounts of crack from defendant on a regular basis. The Seventh Circuit upheld district court’s decision to attribute 28,000 grams of crack to defendant. The base offense level used by the district court only required proof of 1.5 kilograms. The ledgers and the witness testimony had sufficient indicia of reliability to support the district court determination, by a preponderance of the evidence, that the crack quantities far exceeded 1.5 kilograms. Defendant was not sentenced in excess of the statutory maximum and therefore a jury was not required to find the quantity of drugs beyond a reasonable doubt. Nonetheless, the prosecution was “subject to criticism” for seeking to attribute to defendant as relevant conduct 5000 times the amount of drugs for which he was found guilty. U.S. v. Spiller, 261 F.3d 683 (7th Cir. 2001).

7th Circuit says defendant convicted of possessing less than 5 grams of crack not accountable for handling additional drugs. (270) As officers approached a car from which Spruill was selling drugs, defendant, who was in the passenger’s seat, put his hand to his mouth, and then dropped a piece of paper. Officers also observed defendant drop a clear plastic baggy containing eight grams of crack, or 40 doses. The prosecutor argued that defendant had bought all 40 doses from Spruill, while the defense claimed defendant only bought the rock he swallowed, and that the remaining 40 doses belonged to Spruill. The jury apparently believed the defense’s theory, and convicted him only of possessing the small amount of crack that he put in his mouth. The district court refused to include the eight grams of crack into its offense level calculation, and the Seventh Circuit affirmed. Where the conviction is for five grams or less of crack, the uncharged possession or handling of additional crack does not factor into the computation of the offense level. Guideline § 2D2.1 clearly calls for a base offense level of 8 unless the defendant is convicted of possession of more than 5 grams. U.S. v. Steward, 252 F.3d 908 (7th Cir. 2001).

7th Circuit says marshal’s recitation of gang member’s statement not sufficiently reliable to support drug finding. (270) At sentencing, Deal described five occasions when he bought 1.7 grams of crack from defendant, and testified about several other ounces of crack he saw defendant carrying during those transactions. Branscomb testified that defendant sold crack outside Branscomb’s house “about every day during the year of 1998 and 1999.” Finally, a deputy U.S. marshal testified that Griffin told the marshal that he received two ounces of crack from defendant and had seen him in possession of seven or eight ounces of crack. The Seventh Circuit agreed that the 98 grams attributed to defendant through Deal and the 14 grams attributed through Branscomb was supportable. However, it had “serious misgivings about the huge amount, 241 grams, piled on defendant” through a marshal’s recitation of a statement given to him by Griffin, who did not personally testify at sentencing. First, the matters related by Griffin were remote in time—over two years old—to the sales to Deal that formed the basis for the counts of conviction. Second, the district court did not make any specific findings as to Griffin’s reliability. Given this “serious concern,” a finding of “more than 150 grams” was clearly erroneous. U.S. v. Palmer, 248 F.3d 569 (7th Cir. 2001).

7th Circuit holds that testimony of expert witnesses supported reliance on drug notes. (270) The district court found that defendant’s relevant conduct included the 5.1 kilograms of cocaine reflected in her drug notes. This conclusion was based on testimony given by two government witnesses. The first witness was a DEA agent who had been involved in hundreds of drug investigations. The other witness worked with drug trafficking records, was responsible for keeping the DEA’s log on the street price of cocaine, and taught seminars on drug notes. Both witnesses testified that the references in the drugs notes to “w” were to cocaine, confirmed for them by the dollar amounts listed in the adjacent column on the page, figures that corresponded to the current street price for cocaine. Although a handwriting comparison was not performed, the notebooks were in defendant’s possession when she was arrested. One witness testified that drug dealers typically keep their drug notes readily available. Moreover, on the day of defendant’s arrest, she admitted that the notebooks were drug records, although she claimed that they reflected her supplier’s transactions. The Seventh Circuit upheld the district court’s decision to credit the testimony of the expert witnesses over defendant’s claims. No fact directly contradicted the witnesses’ testimony. U.S. v. Huerta, 239 F.3d 865 (7th Cir. 2001).

7th Circuit relies on witness testimony of additional drug sales. (270) The district court held defendant accountable for 3735 grams of methamphetamine based on drugs found in a search of defendant’s residence, Cooke’s testimony, and Neumann’s statement regarding meth that he purchased from defendant. Although defendant argued that Cooke’s testimony was inconsistent and contradictory, its reliability was bolstered by the fact that he testified in person at sentencing and was corroborated by another witness. The testimony also was internally consistent (at one point Cooke stated that he purchased meth from defendant a couple of times a month, and at another point he said he obtained meth every couple of weeks from defendant). Given that the testimony was corroborated by the testimony of a former customer of defendant’s, the Seventh Circuit held that the district court did not clearly err in including drugs amounts based on Cooke’s testimony. Although Neumann, who claimed to have purchased drugs from defendant, did not testify in person at sentencing, hearsay evidence is permissible at sentencing. Although Neumann’s statement was uncorroborated, a court may credit testimony that is “totally uncorroborated and comes from an admitted liar, convicted felon, [or a] large scale drug-dealing, paid government informant.” The district court’s reliance on the sales to Neumann was proper. U.S. v. Berthiaume, 233 F.3d 1000 (7th Cir. 2000).

7th Circuit upholds reliance on felons’ testimony to determine drug quantity. (270) Defendant argued that the evidence of his relevant conduct was not sufficiently reliable. He pointed to discrepancies in the testimony of the witnesses and to the fact that the witnesses were drug-using felons who were receiving reductions in their own sentences in exchange for testifying against defendant. The district court heard these facts and found the testimony to be credible. The court detailed how it determined the amount of drugs attributable to defendant for his relevant conduct. The court’s findings were based on witnesses’ testimony that it found credible; no facts directly contradicted the witnesses’ testimony, and aspects of the testimony were corroborated by other sources. Because the evidence underlying the witnesses’ testimony had a sufficient indicia of reliability, the Seventh Circuit upheld the district court’s drug quantity calculation. U.S. v. Johnson, 227 F.3d 807 (7th Cir. 2000).

7th Circuit approves consideration of conduct outside time period listed in indictment. (270) Defendant’s sole argument against considering acts that occurred in 1997 and 1998 was that those acts were beyond the scope of the indictment, which was limited to the years 1993 to 1996. The Seventh Circuit found that relevant conduct is not limited to acts occurring within the time frame of the indictment. By definition, relevant conduct can be broader than the conduct underlying the offense of conviction. In determining drug weight, the term “relevant conduct” includes “all acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” § 1B1.3(a)(2). Defendant did not argue that his 1997 and 1998 conduct was not part of the same course of conduct as the offense of conviction. U.S. v. Payne, 226 F.3d 792 (7th Cir. 2000).

7th Circuit holds that bulk drug purchases were relevant conduct for retail drug sales. (270) Defendant was convicted of two counts of distributing methamphetamine. Under his plea agreement, the court dismissed charges relating to his earlier “bulk” purchases of meth that he would subsequently sell to individual buyers. However, the court included in its sentencing calculation these bulk meth purchases. The Seventh Circuit affirmed, agreeing that the drug purchases were part of a common scheme or plan as the offense of conviction. Defendant acted as a drug middleman, purchasing drugs in bulk from suppliers, and selling them in retail quantities to individuals. Defendant could not have made the sales involved in the offense of conviction without having first acquired the drugs from a supplier. Purchases predating convicted sales may be considered relevant conduct. See U.S. v. Vital, 68 F.3d 114 (5th Cir. 1995). Thus a common purpose—maintenance of a high-volume drug distributorship—propelled both the convicted retail sales and the unconvicted bulk purchases. Moreover, defendant’s modus operandi throughout the relevant time period was similar. He drove to the homes of his suppliers on a predictable, frequent schedule and paid in cash for small, fixed amounts of drugs. He then sold the drugs in regular quantities to repeat customers. U.S. v. Zehm, 217 F.3d 506 (7th Cir. 2000).

7th Circuit says evidence of relevant conduct was sufficiently reliable. (270) Police found 2.6 grams of methamphetamine in a bottle. The Seventh Circuit found sufficiently reliable evidence to attribute an additional 286 grams of meth to defendant as relevant conduct. Hearsay evidence is admissible at sentencing, provided the court concludes that it is reliable. The case was distinguishable from U.S. v. Robinson, 164 F.3d 1068 (7th Cir. 1999), where the court rejected relevant conduct that was based on information taken from state police investigative reports. Just like Robinson, in this case, the prosecution obtained a conviction based on a relatively small quantity of meth, and sought to substantially increase defendant’s sentence using statements of his confederates. However, unlike Robinson, the statements made by the three witnesses in this case were not inconsistent and did not contradict each other. The three witnesses all described defendant as manufacturing meth in a uniform manner on multiple occasions, and the similarity of their statements reinforced the credibility of each statement. Moreover, the statements of two of these witnesses were corroborated by other statements in the PSR. U.S. v. Morrison, 207 F.3d 962 (7th Cir. 2000).

7th Circuit upholds reliance on only one of witness’s two statements. (270) In one statement to a DEA agent, Songer said that defendant taught Songer how to cook methamphetamine in exchange for a car, a motor, and a chain saw, and that Songer saw defendant produce 148 grams of meth. In a second interview, Songer also reported receiving between 30 and 60 ounces of defendant’s meth. The government did not rely on either of Songer’s two statements at sentencing. The district court, however, credited Songer’s first statement, which, when combined with other quantities, made defendant responsible for over 500 grams of meth. The Seventh Circuit upheld the district court’s reliance on Songer’s first statement. The wide gulf between the two stories, combined with Songer’s admitted drug use, suggested that the trial court might have performed a more searching inquiry than it did. However, the appellate court did not have a “definite and firm conviction” that the judge was mistaken. The testimony about the 148 grams bore indicia of reliability—facts and details—that were missing from the statement regarding the larger amount. Songer twice told officers that he observed defendant cook this amount of meth. He specified the exact quantities cooked, described the ingredients used, and explained who provided the ingredients. Songer also told officers about the items he gave defendant in exchange for the cooking lessons. In contrast, Songer estimated just once, in passing, that he purchased between 30 and 60 grams of defendant’s meth. U.S. v. Galbraith, 200 F.3d 1006 (7th Cir. 2000).

7th Circuit upholds reliance on other drug dealers to determine relevant conduct. (270) During defendant’s flight from police, he dropped a bag containing 7.26 grams of cocaine base. Based on the testimony of two street-level crack dealers who claimed to have dealt drugs with defendant in various areas, the district court attributed two additional ounces of crack to defendant. The Seventh Circuit upheld the district court’s reliance on the testimony of other drug dealers to determine defendant’s relevant conduct. Both dealers testified that they saw defendant regularly dealing crack on the streets of the Delaney Projects. Although defendant claimed that this testimony was unreliable and uncorroborated, he did not offer any evidence to call the reliability or correctness of the facts into question. The district court carefully scrutinized the dealers’ statements, and concluded that they were credible, and that defendant distributed one to two ounces of crack cocaine once or twice a month. U.S. v. Griffin, 194 F.3d 808 (7th Cir. 1999).

7th Circuit holds that prior drug dealings were relevant conduct. (270) The district court found that, despite certain time gaps, the defendant’s drug activity was ongoing conduct that was part of a “continuing scheme,” and that defendant acted continuously as a drug dealer from 1990 until her arrest in February 1998. Because there was similarity, regularity, and temporal proximity between the incidents in question, the Seventh Circuit agreed that defendant’s prior drug dealings were relevant conduct for sentencing. “Finding a course of conduct in the absence of regularity and temporal proximity may not be clearly erroneous when there is a ‘stronger showing’ of similarity between the offense of conviction and the uncharged conduct.” In the present case, there was strong evidence of similarity in the identity and roles of the participants and the nature and structure of the various drug transactions. Medberry sold an ounce of methamphetamine per month for defendant between August 1991 and July 1992 and again between August 1993 and October 1994. Medberry then sold three ounces per month from May 1995 until July 1996, and 10 ounces per month for four months, beginning in August 1996. Upton had a similar arrangement with defendant between the fall of 1996 and December of 1997. U.S. v. Spry, 190 F.3d 829 (7th Cir. 1999).

7th Circuit finds defendant failed to prove co-conspirator’s statement was unreliable. (270) After her arrest, Overton gave investigators a detailed account of her drug dealings, including 20 grams of crack that defendant supplied to her in September 1996. Defendant argued that this information was unreliable, pointing out that Overton never mentioned the September transaction in other interviews. The Seventh Circuit found that the fact that Overton only referred to the 20-ounce transaction on one occasion did not make the information unreliable. A sentencing judge may rely on information beyond the scope of the evidence produced at trial, including information contained in the defendant’s PSR and information obtaining during the plea hearings of co-defendants. Defendant did not produce any specific evidence that supported his “bald assertion” that the information was unreliable. U.S. v. Hardamon, 188 F.3d 843 (7th Cir. 1999).

7th Circuit says disparity in relevant conduct was result of co-defendants’ cooperation agreements. (270) Defendant argued that he should not have been held responsible for 15-20 kilograms of cocaine when some of his more culpable co-defendants were held responsible for the same amount or less. The Seventh Circuit found no error, since these co-defendants pled guilty, and their cooperation agreements prevented the government from using their statements to enhance their relevant conduct. Therefore, conduct attributed to the co-defendants did not accurately reflect their actual responsibility. U.S. v. Coleman, 179 F.3d 1056 (7th Cir. 1999).

7th Circuit rules 1989-1992 drug transactions not relevant conduct for 1994 offense. (270) Defendant was arrested in November 1994 with three kilograms of cocaine. At trial, the government presented testimony under Federal Rule of Evidence 404(b) of defendant’s 1989 to 1992 narcotics transactions. The Seventh Circuit held that 1989 to 1992 transactions were not relevant conduct because they were not close enough in time and character to the present offense constitute a single course of conduct or common scheme. Conduct which is relevant under Rule 404(b) is not necessarily relevant conduct for sentencing purposes. In the present case, there was no explanation for the lack of drug activity from 1992 to 1994. Where the gap in time can be explained by non-volitional factors, such as incarceration, such a gap may not preclude a finding of a single course of conduct. However, where, as here, the two-year gap is not fully explained by non-volitional circumstances, this suggests a cessation of one scheme and the beginning of another. This was particularly true here, where the current crime involved frequent cocaine deals. In addition, the participants in the offense of conviction were different from those in the 1989 to 1992 transactions with the exception of defendant himself. U.S. v. Ruiz, 178 F.3d 877 (7th Cir. 1999).

7th Circuit reverses district court’s finding that other drugs were relevant conduct. (270) Defendant stored cocaine at an associate’s paper business. He was arrested leaving the business in a car carrying 75.1 grams of cocaine. A search of the business uncovered 258.6 grams of cocaine. The associate told police that in 1996, defendant asked him to arrange the purchase of a kilogram of cocaine from a contact the associate had in Texas. Another witness testified that in late 1996, defendant offered him $2,000 to pick up two kilograms of cocaine in Chicago, and deliver half of it to another man and the remaining kilogram to defendant. The Seventh Circuit ruled that the district court did not make adequate findings to support treating the one kilogram and the two kilogram transactions as relevant conduct. Nothing in the record indicated when in 1996 the purchase occurred. It could have occurred as early as January 1996, more than 18 months before defendant’s arrest. The record also showed no geographic proximity, and did not explain how the alleged purchase involved the same purpose or modus operandi as the convicted offense. The record also contained no specific information about the two kilogram transaction. U.S. v. Bacallao, 149 F.3d 717 (7th Cir. 1998).

7th Circuit rejects constitutional challenges to attributing claimed drug quantities to defendant. (270) Defendant was convicted of drug charges. The district court considered as relevant conduct not only the 279 grams of cocaine defendant sold to the government but also 425 grams defendant claimed to possess in recorded telephone conversations. Defendant argued that it violated the Fifth and Sixth Amendments to attribute the unseized, drugs to him as relevant conduct. The Seventh Circuit disagreed. Cases have repeatedly upheld the constitutionality of the guidelines’ instruction to increase a defendant’s sentence based on uncharged relevant conduct. Here, the district court listened to defendant describe his drug holdings in two recorded conversations. The court also listened to a former customer describe his participation in these conversations, identify defendant’s voice, and explain the meaning of their conversations with regard to drug quantities. Possessing the disputed 425 grams was sufficiently similar in time and type to defendant’s charged conduct as to be part of the same course of conduct as the charged offense. U.S. v. Hillsman, 141 F.3d 777 (7th Cir. 1998).

7th Circuit approves consideration of drug ledger in determining relevant conduct. (270) Defendant worked as a dishwasher in a restaurant owned by a drug dealer. His duties expanded to include delivering cocaine to various customer on his employer’s behalf. On the day of defendant’s arrest, police officers seized a ledger from his house. The district court held defendant accountable for over 150 kilograms of cocaine based on the drug ledger and first-hand witness testimony of defendant’s cocaine deliveries. The Seventh Circuit held that the district court properly considered the drug ledger in determining defendant’s relevant conduct. Defendant admitted to making drug deliveries on his employer’s behalf and admitted that he made notations in the ledger at the employer’s request. An intelligence analyst for the DEA decoded the ledger as recording information such as the kilograms of cocaine delivered to a customer, the price of the transaction, and the payments owed on that transaction. Defendant was a dishwasher and cook at the dealer’s restaurant. Drugs were the only reasonable explanation for the detailed ledger of transactions. Defendant did not participate in the management of the restaurant. U.S. v. Hillsman, 141 F.3d 777 (7th Cir. 1998).

7th Circuit reverses relevant conduct findings for lack of relationship between cash and offense. (270) In holding defendant accountable for more than 50 kilograms of cocaine, the court referred to 40 kilograms in the transaction that resulted in defendant’s arrest, 5 kilograms defendant admitted selling earlier, and $2 million recovered by authorities during two traffic stops. The Seventh Circuit found that the court’s relevant conduct findings concerning the $2 million were insufficient because they did not address the relationship between the money and the offense of conviction. The court properly found that the $2 million was drug proceeds, because this is what defendant told a co-conspirator during a recorded conversation. And a court may estimate drug quantity by converting proceeds into a corresponding amount of drugs. Nevertheless, to hold a defendant accountable for drug quantities from unconvicted conduct, the judge must explicitly find that the unconvicted activities bore the necessary relation to the conviction offense. The court here made no finding that the drug transactions underlying the proceeds were part of the same course of conduct or common scheme or plan as the offense of conviction. U.S. v. Patel, 131 F.3d 1195 (7th Cir. 1997).

7th Circuit finds insufficient justification to include five-year-old drug transactions. (270) In 1994, defendant and a co-conspirator purchased 700 pounds of marijuana from a confidential informant. He claimed it was error to include as relevant conduct drug transactions between the conspirators and the informant that occurred between 1986 to 1989, five years before the charged conspiracy. The Seventh Circuit agreed, holding that the record contained insufficient information to include the earlier transactions. The district court concluded, in summary fashion, that the total amount involved was 2000 pounds, without addressing or making a specific determination as to whether the earlier conduct constituted relevant conduct. The record contained little information about the regularity or the similarity of the transactions. All it showed was that the same two defendants and the informant were dealing marijuana on a smaller scale in 1986-1989. There was no evidence that the district court considered this matter at all, despite defendant’s objection. U.S. v. Mankiewicz, 122 F.3d 399 (7th Cir. 1997).

7th Circuit finds relevant conduct determination was supported by defendant’s admissions. (270) Defendant pled guilty to possessing with intent to distribute 120 grams of crack cocaine and 497 grams of powder cocaine. He challenged the court’s attribution to him of 26 kilograms of crack cocaine that he distributed during the year leading up to his arrest. He claimed that the court improperly relied on the testimony of a government witness. The Seventh Circuit affirmed the drug quantity determination since it was supported by defendant’s own admissions. Defendant admitted that he had bought and sold cocaine for a year and produced a kilogram of crack per week. Therefore the drug quantity attribution was proper. U.S. v. Shelby, 121 F.3d 1118 (7th Cir. 1997).

7th Circuit upholds decision to attribute to defendant drug quantities in PSR. (270) The presentence report attributed to defendant 1,852.79 grams of cocaine. Defendant objected. The Seventh Circuit upheld the district court’s decision to adopt the drug quantities attributed to defendant in the PSR. The quantity was supported by the trial evidence and included cocaine sales witnessed by undercover police, sales to witnesses, sales admitted by defendant, testimony by witnesses concerning trips to St. Louis planned by defendant to purchase cocaine, and sales by dealers that defendant supplied. At the sentencing hearing, a police inspector testified that defendant could reasonably be held responsible for 1852 grams. The court overruled defendant’s objection and explicitly referenced its examination of the PSR, the evidence at the sentencing hearing, and the arguments of counsel. U.S. v. McKinney, 98 F.3d 974 (7th Cir. 1996).

7th Circuit finds drug quantity error harmless where admissions supported offense level. (270) Defendant was convicted of drug charges after attempting to purchase cocaine from an undercover agent. The district court found her responsible for 14 kilograms of cocaine—four kilograms that defendant attempted to purchase from the agent and ten kilograms that she told the agent belonged to her when another drug dealer was arrested. However, the date of this arrest was incorrect in the sentencing materials given to the judge, and actually took place outside the relevant time period for defendant’s crime. The Seventh Circuit found the mistake harmless because there was adequate evidence that defendant dealt at least one additional kilogram to place her in the 5-15 kilogram range. Defendant admitted to a confidential informant that she could sell up to eight kilos for him and that she already had seven in her possession. On another occasion, she told the undercover agent that she was in possession of two kilos of cocaine and could sell up to six kilos. Any one of defendant’s admissions alone, when added to the four kilos she attempted to purchase from the undercover agent, was adequate to support her sentence. U.S. v. Benitez, 92 F.3d 528 (7th Cir. 1996).

7th Circuit upholds relevant conduct finding but rejects drug quantity determination. (270) Defendant was arrested possessing 31 grams of heroin. The district court held him accountable for an additional 20 kilograms of cocaine as relevant conduct. The Seventh Circuit agreed that the uncharged cocaine sales were relevant conduct, but rejected the court’s 20‑kilogram finding. Defendant obtained both the cocaine and the heroin at the same time. The physical evidence found at defendant’s residence supported the conclusion that he was dealing in cocaine at the time of the heroin offense. However, the drug quantity determination was not based on reliable information. The testimony the court relied on was contradictory. The witness offered inconsistent estimates concerning the size of his smallest purchases, at one point stating it was a half ounce and at another point that it was nine ounces. The court used the nine ounce figure without explaining why it rejected the half ounce figure. U.S. v. Acosta, 85 F.3d 275 (7th Cir. 1996).

7th Circuit does not require express finding of relevant conduct. (270) Defendant was convicted of a heroin offense. The district court held him accountable for an additional 20 kilograms of cocaine. He challenged this since the district court never made an express finding that the cocaine sales were part of the same course of conduct or common scheme or plan as the heroin offense. The Seventh Circuit refused to set aside the court’s implicit determination that the cocaine sales were relevant conduct solely because the judge did not expressly find that those sales were part of the same course of conduct as the heroin offense. The judge reviewed the PSR containing statements made by defendant’s wife and carefully considered whether the information was reliable. The judge also considered whether the buyer’s testimony was corroborated by the information developed by police in their investigation of defendant. The judge then credited this testimony, adopted the findings of the PSR, and calculated the total quantity of drugs attributable to defendant. U.S. v. Acosta, 85 F.3d 275 (7th Cir. 1996).

7th Circuit says evidence sufficiently linked defendant to uncharged drugs found in apartment. (270) Defendant was convicted of various drug counts. The district court attributed to defendant 762 grams of cocaine found by police executing a search warrant at a nearby apartment. The Seventh Circuit agreed that there was sufficient evidence to hold defendant accountable for these drugs, even though he was not present at the apartment during the raid. The utilities to the apartment were registered in his name, he was paying the rent in cash directly to the owner, and rent receipts were prepared in his name. A security door had been installed at the apartment without that owner’s knowledge. Two reliable informants told an undercover agent that defendant had rented and used the apartment to cut, package, and sell illegal drugs. Defendant did not testify or offer any other evidence to rebut this evidence. U.S. v. Windom, 82 F.3d 742 (7th Cir. 1996), vacated in part on other grounds on rehearing by U.S. v. Windom, 103 F.3d 523 (7th Cir. 1996).

7th Circuit finds previous drug sales were part of ongoing course of conduct. (270) Defendant was convicted of charges stemming from his October 1992 sale to an associate of one kilogram of cocaine. The district court held defendant accountable for between 50 and 150 kilograms of cocaine, based on previous sales and purchases between 1987-1992. Defendant argued that these previous deals were isolated transactions. The Seventh Circuit held they were part of the same course of conduct because of the strong similarities among them. Most of the transactions involved the same parties. When the defendant acted as supplier he would “front” the cocaine to his buyer. All of the deals took place in the Chicago area, and they all involved large quantities of cocaine. Moreover, defendant also pled guilty to a conspiracy charge that covered the entire period between 1987 and 1992. It could be fairly said that defendants acts during this period were more than relevant conduct; they were, in fact, the offense of conviction. Finally, a recorded telephone call between defendant and the associate confirmed that the October 1992 sale was merely the latest in a long series of deals between the two. U.S. v. Garcia, 66 F.3d 851 (7th Cir. 1995).

7th Circuit agrees that evidence supported finding of additional drug quantities. (270) Defendant argued that since he was only convicted of conspiring to distribute 14.5 ounces (about 400 grams) of crack cocaine, his sentence should not have been based on 500 grams. The Seventh Circuit found sufficient evidence at sentencing and at trial to hold defendant accountable for at least 500 grams of crack cocaine. At sentencing, the government introduced interviews from three drug dealers who asserted they had dealings with defendant. Two of the dealers had previously testified before the judge, and defendant had an opportunity to challenge their interviews. This evidence was corroborated by testimony given at trial. One witness testified that she had known defendant since 1988 and that he had never been employed as anything other than a drug dealer. Two other witnesses testified about additional drugs deals involving defendant. U.S. v. Garrett, 45 F.3d 1135 (7th Cir. 1995).

7th Circuit approves mandatory life sentence based on uncharged conduct. (270) The district court found that defendant was responsible for at least 150 to 500 grams of cocaine base, and sentenced him to a mandatory life term under 21 U.S.C. § 841(b)(1)(A)(iii). Defendant argued that he should have been sentenced under subsection (B)(ii)(II), which applies to offenses involving over 500 grams of cocaine powder, because the indictment, jury instruction, and count of conviction all charged him with conspiring to distribute and possess cocaine and not crack. The 7th Circuit disagreed, since a court is required to consider types and quantities of drugs not specified in the indictment or count of conviction if they are part of the same course of conduct or common scheme or plan. The 50 grams of cocaine base for which defendant was sentenced was clearly part of the same conspiracy as that charged in the count of conviction. Once the district court found that more than 50 grams of crack were involved in the offense, it was required to impose the mandatory life sentence. U.S. v. Cooper, 39 F.3d 167 (7th Cir. 1994).

7th Circuit says cocaine base in toilet bowl of defendant’s residence was relevant conduct. (270) Defendant was convicted of aiding her daughter in distributing 1.1 grams of crack cocaine. The 7th Circuit held that 10.8 grams of cocaine base, found in the toilet bowl during a search of defendant’s residence, was part of the same course of conduct or common scheme, as the offense of conviction. The record supported the conclusion that defendant was an active participant in a joint drug dealing enterprise with her daughter. The daughter’s testimony that she left drugs out for addicts to serve themselves was incredible; a reasonable inference was that the drugs were left under defendant’s control to distribute and collect money. Judge Flaum dissented. U.S. v. Hatchett, 31 F.3d 1411 (7th Cir. 1994).

7th Circuit says drug sales four days apart at same place, with same parties, were part of the same course of conduct. (270) Defendant was convicted of distributing cocaine base to a confidential informant. The 7th Circuit held that an uncharged cocaine sale was part of the same course of conduct or common scheme or plan as the offense of conviction. The same parties were involved in both transactions. The same type of drug, cocaine powder, was delivered to the same confidential informant at the same location. In both transactions, the confidential informant took the drugs to the supposed buyer, an undercover agent, before paying for the drugs. Moreover, the transactions were only four days apart. U.S. v. Wilson, 31 F.3d 510 (7th Cir. 1994).

7th Circuit approves reliance on drugs in acquitted conduct. (270) Defendant was convicted of selling cocaine to an undercover agent, but was acquitted of charges stemming from an incident where a deputy saw defendant run and drop a packet of 5.6 grams of cocaine. Defendant argued that the drugs in the acquitted “throw-down” incident should not have been included as relevant conduct. The 7th Circuit disagreed, approving the use of the drugs in the acquitted count. Nothing in the record suggested that the deputy’s testimony should not be believed. The testimony was corroborated by another witness. The testimonies were detailed and specific as to defendant’s actions. U.S. v. Porter, 23 F.3d 1274 (7th Cir. 1994).

7th Circuit holds court did not adequately examine inconsistent drug quantity evidence. (270) The district court attributed an additional 592 grams of cocaine to defendant based on (a) an affidavit from a former friend stating that he had bought 15 to 20 ounces from defendant over a 15-year period, and (b) trial testimony from another witness who claimed to have purchased six to seven ounces of cocaine from defendant during the last three to four years. The 7th Circuit remanded for a re-examination of the evidence. The friend’s first affidavit stated that he had purchased between 150 and 200 ounces from defendant; a second affidavit stated that the actual quantity was 15 to 20 ounces. However, at trial, the friend was unable to estimate the quantity of cocaine he had purchased. In addition, although the affidavit said he had purchased drugs over a 16-year period, at trial he said 10 years. Moreover, although the affidavit stated that he had known defendant for 30 years, at trial, he said 10 or 12 years. Finally, the friend was a cocaine addict during most of the time. All of these factors lent some doubt to the affidavit’s reliability, yet the district court never addressed the matter. U.S. v. Beler, 20 F.3d 1428 (7th Cir. 1994).

7th Circuit holds that defendant need not be indicted for relevant conduct. (270) Defendant sold cocaine base to an undercover agent on three occasions, but was only charged and convicted of the third sale. He argued for the first time on appeal that the district court erred in factoring the first two sales into his sentence, since the grand jury did not indict him on those charges. The 7th Circuit found that defendant waived the argument, but that even if he had not, it lacked merit. Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range. Moreover, since defendant received the statutory minimum for an offense involving in excess of five grams of cocaine base, even if his argument were successful it would not reduce his sentence. U.S. v. Tucker, 20 F.3d 242 (7th Cir. 1994).

7th Circuit rejects claim that defendant was responsible for only four ounces of cocaine. (270) The 7th Circuit rejected defendant’s claim that he was only responsible for four ounces of cocaine. One witness testified that he had distributed at least 24 ounces of cocaine to defendant, and that defendant and a co-conspirator had delivered 60 ounces of cocaine. This testimony was not undermined by the co-conspirator’s testimony that he did not recall such a delivery, since the co-conspirator also stated he was high on drugs at the time. In addition, a cellmate testified that defendant had told him that he was going to claim that he was only responsible for four ounces when he was actually responsible for two kilograms. U.S. v. Pitz, 2 F.3d 723 (7th Cir. 1993).

7th Circuit affirms that drug notes in defendant’s wallet were part of same course of conduct as instant offense. (270) The 7th Circuit affirmed that drug notes found in defendant’s wallet when he was arrested reflected drug transactions that were part of the same Milwaukee drug conspiracy. The government presented expert testimony that (a) experienced drug dealers do not carry old drug notes on their person, and (b) the notes reflected prices in Milwaukee, rather than New York. The defendant offered no contrary evidence, instead merely challenging the expert’s conclusions. The expert had 20 years experience investigating, analyzing and testifying concerning drug operations. The expert’s testimony was entirely plausible. The district court was acting within its discretion in finding the expert’s testimony about drug sales data more credible than the speculative, self-serving theories of the defense. U.S. v. Duarte, 1 F.3d 644 (7th Cir. 1993).

7th Circuit holds that two-year-old transactions were part of same course of conduct as instant drug sale. (270) Defendant purchased one kilogram of cocaine from a government informant. The informant testified that about two years before the instant sale, defendant had purchased a total of 40 kilograms of cocaine from him. The 7th Circuit affirmed that the two-year-old transactions were part of the same course of conduct, and thus the 40 kilograms were properly included in the calculation of defendant’s base offense level. First, the two-year respite could be explained by the fact that the informant had lost his supplier and was having difficulty obtaining cocaine. Moreover, the drug transactions involved substantially similar conduct: each took place in Chicago with a relatively large amount of cocaine; the cocaine was fronted to defendant by the informant and picked up by “mules” working for defendant. U.S. v. Cedano-Rojas, 999 F.2d 1175 (7th Cir. 1993).

7th Circuit upholds relevant conduct determination despite jury’s acquittal on related counts. (270) Undercover agents purchased cocaine from Gant. When agents told Gant they were interested in purchasing cocaine in quantities greater than one kilogram, he said he had to check with defendant, who was his partner. Defendant then negotiated to sell the agents two kilograms of cocaine, but the sale was never completed. At trial, Gant testified for the government that defendant had supplied him with over five kilograms of cocaine during their conspiracy. Defendant was convicted of conspiracy but acquitted of three drug possession counts. The 7th Circuit held defendant was accountable for over five kilograms of cocaine despite his acquittal on the three possession counts. An acquittal on the possession charge did not preclude a finding by the district court that he was responsible for the charged conduct. Defendant’s own statements to the agents lent powerful support to Gant’s description of defendant as the leader of a sophisticated trafficking operation. U.S. v. Campbell, 985 F.2d 341 (7th Cir. 1993).

7th Circuit finds information in presentence report gave defendant adequate notice of relevant conduct. (270) Based upon additional drug sales listed in defendant’s presentence report, the offense level was increased from 12 to 26. The 7th Circuit affirmed that defendant had adequate notice that these additional sales would be considered relevant conduct for sentencing purposes. At defendant’s first sentencing hearing, the government noted that it was not pressing the district court to use these additional sales as relevant conduct. Thus, the possibility of increasing defendant’s guideline range based upon his additional drug sales was raised during his first sentencing hearing. Although at that point the government chose not to urge that approach, the issue was flagged for the defense and the defense clearly recalled the statement at the second sentencing hearing. Unlike a guidelines departure, enhancement based on relevant conduct is mandatory, not discretionary. Defendant had minimally adequate notice that the other drug sales might be used to enhance his sentence. U.S. v. Thomas, 969 F.2d 352 (7th Cir. 1992).

7th Circuit affirms sentence on the basis of relevant conduct rather than departure. (270) The presentence report set the guideline range at 21 to 27 months for defendant’s drug offense. The government argued for an upward departure based on defendant’s presentence report in which he admitted selling at least 520 grams of cocaine from his gang’s house. The district court found that such sales were relevant conduct, and sentenced defendant to 114 months. The 7th Circuit affirmed, rejecting defendant’s claim that the district court had improperly departed. The decision was not a “departure” at all, but an adjustment based on relevant conduct not previously included in defendant’s offense level. Although the district court failed to adequately explain why 500 grams were relevant conduct to the offense of conviction, it adopted the presentence report, which indicated a temporal and locational relationship among the drug sales in question. This supported the district court’s finding of relevant conduct. U.S. v. Thomas, 969 F.2d 352 (7th Cir. 1992).

7th Circuit upholds inclusion of additional 30 kilograms of cocaine. (270) Defendants were arrested after attempting to purchase 30 kilograms of cocaine from a government informant. The 7th Circuit found no error in the district court’s inclusion of an additional 30 kilograms of cocaine which defendants had possessed and distributed prior to the offense of conviction. At trial, witnesses testified that defendants promised to pay for the cocaine purchased from the government informant from the proceeds of 30 kilograms which they had already distributed. Moreover, after their arrest, one of the defendants placed a telephone call from the detention center to the owner of the apartment where defendants stayed prior to their arrest. In that conversation, the owner told defendant that defendant’s wife “told me she had some,” and said that there were 30 left. U.S. v. Leiva, 959 F.2d 637 (7th Cir. 1992).

7th Circuit says relevant conduct includes sales made to confidential informant in years prior to defendant’s arrest. (270) The 7th Circuit rejected defendant’s claim that the district court erred in determining his offense level by including cocaine he allegedly sold to a confidential informant before the transactions described in the indictment. At the sentencing hearing, defendant admitted supplying a single customer, who later became a confidential informant for the government, with cocaine since 1986. A government agent testified that defendant had informed him on a prior occasion that the total volume of cocaine sold to this customer was between six to eight kilograms. The district court found this testimony more credible than defendant’s claim of only three kilograms. The district court could properly conclude that all of defendant’s sales to the informant amounted to the same course of conduct. U.S. v. Nunez, 958 F.2d 196 (7th Cir. 1992).

7th Circuit reverses aggregation of uncharged drugs because court failed to make relevant conduct determination. (270) Defendant was convicted of conspiring to distribute 1.177 grams of cocaine seized from him during his arrest. The district court included in the calculation of his offense level five kilograms of cocaine based on drug notes found in his wallet at his arrest. The 7th Circuit reversed, because the district court failed to determine that the transactions recorded in the drug notes were part of the “same course of conduct or common scheme or plan” as the offense of conviction. Nothing suggested a temporal, geographical or any other relationship between the transactions recorded in the notes and the offense of conviction. That the notes were found in defendant’s wallet at the time of his arrest was not very probative. On remand, however, the government should be given the opportunity to connect the notes to the instant offense. U.S. v. Duarte, 950 F.2d 1255 (7th Cir. 1991).

7th Circuit affirms consideration of related conduct based on testimony of government witnesses. (270) Defendant argued that the district court erred in including in the calculation of his offense level cocaine from transactions which the court found to be “related” to the offense of conviction based on the testimony of two “biased” witnesses. The 7th Circuit rejected this contention, since it is the district court’s prerogative to assess the credibility of the witnesses and credit their testimony over defendant’s testimony. The district court was aware that the witnesses had entered into agreements with the government which required their testimony at defendant’s trial. The 7th Circuit also rejected defendant’s argument that the burden of proof for determining relevant conduct should be higher, finding no merit in the contention that the guidelines are ambiguous as to what constitutes relevant conduct. U.S. v. Caicedo, 937 F.2d 1227 (7th Cir. 1991).

7th Circuit rules evidence sufficient to establish additional drugs as part of same course of conduct. (270) A co-conspirator was arrested with 10 kilograms of 91 percent pure cocaine. He said that he worked for defendant, and that he had made previous trips for defendant each involving six to eight kilograms of cocaine. Defendant was arrested after he met with the co-conspirator and requested a kilogram of cocaine. Although defendant was only charged with possessing one kilogram, the court sentenced him on the basis of 50 kilograms. The 7th Circuit affirmed, ruling that the evidence was sufficient to establish that the 50 kilograms were part of the same course of conduct as the one kilogram. In addition to the co-conspirator’s testimony, the amount and purity of the seized cocaine indicated that this was not a random transaction. Moreover, defendant had confirmed reservations to Medellin, Colombia, for 15 days, and his girlfriend said that he used her apartment to store and sell drugs, and that he had made wire transfers of thousands of dollars from the girlfriend to various people in Miami. U.S. v. Rodriguez-Luna, 937 F.2d 1208 (7th Cir. 1991).

7th Circuit rejects need for special jury verdict as to amount of cocaine involved in offense. (270) Defendants alleged that the district court erred in refusing their request for a special verdict to the jury that would determine the amount of cocaine involved in their offense. The 7th Circuit rejected this argument, finding no special verdict was needed. First, juries only determine guilt or innocence, while punishment is the province of the court. Second, the appellate court must give great deference to the district court’s factual findings, including the calculation of the quantity of drugs involved in the offense. Third, the amount of cocaine was described in the substantive counts of the indictment, so the jury was effectively required to determine the weight as part of the determination of guilt. Finally, several of the counts overlapped for purposes of counting the amount of cocaine involved, and therefore, the government and defense counsel agreed on 18.5 kilograms for purposes of sentencing. A special interrogatory to the jury would be superfluous. U.S. v. McKenzie, 922 F.2d 1323 (7th Cir. 1991).

7th Circuit upholds consideration of dismissed counts in determining of offense level. (270) A search of a house rented by defendant revealed four kilograms of cocaine, eight ounces of heroin, $34,000, a money counting machine, packaging materials for drugs, and a triple beam scale. Defendant admitted possessing the four kilograms of cocaine, but objected to the inclusion of the heroin in the calculation of his base offense level. The charges of heroin distribution had been dropped as part of a plea agreement. The 7th Circuit upheld the consideration of the heroin in defendant’s offense level. The heroin was in a quantity large enough to imply an intent to distribute, and was connected by location with the cocaine. The district court’s determination that possession of the heroin was part of the same course of conduct as possession of the cocaine was not clearly erroneous. U.S. v. Rodriguez-Nuez, 919 F.2d 461 (7th Cir. 1990).

8th Circuit upholds reliance on roommates’ testimony to establish drug quantity. (270) Defendant challenged the court’s reliance on testimony from Henderson and Warren, an engaged couple who lived with defendant, to determine that defendant was accountable for between 500 grams and 1.5 kilograms of methamphetamine. The roommates testified that they drove defendant to his supplier and observed defendant handle guns. Defendant argued that Henderson was not a credible witness because she was uncertain about the number of times she drove defendant to purchase methamphetamine, and she was a “jilted lover” who was “testifying under a grant of immunity.” The Eighth Circuit found no clear error and upheld the court’s drug-quantity determination. “It is well established that in sentencing matters a district court’s assessment of witness credibility is quintessentially a judgment call and virtually unassailable on appeal.” U.S. v. Rodriguez, 711 F.3d 928 (8th Cir. 2013).

8th Circuit affirms reliance on addict’s testimony about drugs purchased from defendant. (270) The district court held defendant accountable for 1,114.9 grams of cocaine base by combining 20.9 grams of cocaine base involved in the offense, and extrapolating 1,094 grams from the trial testimony of Adams. Adams testified that, beginning in the spring of 2005, she purchased crack at least twice a day from defendant, and that each of her two daily purchases was for one gram, at $40 per gram. Defendant argued that Adams’s testimony was incredible as a matter of law because she lacked the money to purchase 1,094 grams of crack. Adams had been a drug addict for 15 years, was bipolar, and had three forgery convictions. The district court found Adams’s testimony credible. While it was “unreasonable” to believe that Adams purchased two grams of crack from defendant every single day, she did clearly purchase in excess of 500 grams, which was all that was needed to support defendant’s sentence. The Eighth Circuit held that the district court did not clearly err by finding relevant conduct of at least 500 grams of cocaine base. U.S. v. Hart, 544 F.3d 911 (8th Cir. 2008).

8th Circuit finds sufficient evidence tying defendant to uncharged drug quantities. (270) The district court sentenced defendant for conspiring to distribute 2,560.51 grams of methamphetamine, even though the jury found him guilty of conspiracy to distribute less than 50 grams. However, a court can impose a sentence based on a higher drug quantity determination than the jury’s finding so long as the sentence does not exceed the statutory maximum of the convicted offense. The court did not violate that rule here, since the statutory maximum for distributing 50 grams of meth is 20 years, and defendant received a 210-month sentence. The Eighth Circuit found sufficient evidence to support the court’s drug quantity determination. Although there was some weaknesses in the witnesses’ testimony, the court had considerable discretion in determining their credibility. Four conspirators testified as to defendant’s involvement with the conspiracy. Two testified that defendant handled money for a June deal involving two pounds of meth; other testified that defendant acted as a courier to complete a five-pound deal. This was sufficient to connect defendant to 2268 grams of methamphetamine. U.S. v. Johnston, 353 F.3d 617 (8th Cir. 2003).

8th Circuit upholds reliance on drug quantity testimony that court found credible. (270) Defendant claimed the district court erred in attributing certain quantities of crack cocaine to him based on Jirouch’s testimony about prior transactions not included in the indictment. He argued that Jirouch’s testimony lacked sufficient indicia of reliability for the court to consider it for sentencing purposes. The Eighth Circuit found no clear error. The district court presided at trial, found Jirouch credible, and based its quantity calculation on the evidence. This was not clearly erroneous. U.S. v. Exson, 328 F.3d 456 (8th Cir. 2003).

8th Circuit upholds inclusion of drugs seized by postal inspectors en route to defendant’s house. (270) Evidence at trial showed that defendant managed a stash house used by a drug conspiracy. Postal inspectors seized a package containing methamphetamine that was en route to the stash house. In addition, police seized a pound of meth from Ramirez, who testified that he obtained the meth from defendant. The Eighth Circuit held that the district court properly included both the meth seized by the postal inspectors en route to the stash house and the meth seized from Ramirez in its sentencing calculations. There was evidence linking defendant to the meth seized from both sources. U.S. v. Barrios-Perez, 317 F.3d 777 (8th Cir. 2003).

8th Circuit upholds use of acquitted conduct at sentencing. (270) Defendant was charged with and convicted of conspiracy to distribute methamphetamine, and charged with possession of methamphetamine with intent to distribute, but was convicted of the lesser included offense of possession of methamphetamine. Defendant argued that the use of the acquitted conduct for sentencing was unreasonable and irresponsible. The district court found all 277.77 grams of meth were attributed to defendant, as relevant conduct to the conspiracy count. The Eighth Circuit noted that even if the 128 grams of meth found in defendant’s residence were attributable to the acquitted conduct, the district court still would not have erred in using that evidence to sentence defendant. This circuit allows acquitted conduct to be used for sentencing purposes if proved by a preponderance of the evidence, especially when a conspiracy charge is included. U.S. v. Tirado, 313 F.3d 437 (8th Cir. 2002).

8th Circuit holds that marijuana possession was relevant conduct rather than separate offense. (270) Defendant pled guilty to charges stemming from a drug conspiracy that took place between 1996 and 1999. The government argued that defendant’s 1998 conviction for marijuana possession, which was based on a 1997 search of defendant’s apartment, should have been counted in his criminal history rather than as relevant conduct to the conspiracy. The Eighth Circuit concluded that the conduct underlying the 1998 conviction was part of the same common plan or scheme as the conspiracy, and thus was properly considered relevant conduct, not a prior offense. Both offenses had temporal and geographic proximity and involved the same criminal scheme and the same types of drugs. The underlying conduct for both crimes occurred in the Dubuque area, and both were investigated by the same law enforcement officer. The conspiracy charge involved the same types of drugs as found in defendant’s residence in the 1997 search and the criminal intent was similar. The 1997 search not only involved personal use drugs, but uncovered other indicia of drug dealing. Finally, some of the evidence used to support probable cause for the 1997 search warrant was also used as evidence for the conspiracy. The 1998 drug conviction was not a severable and distinct offense from 2001 conspiracy. U.S. v. Weiland, 284 F.3d 878 (8th Cir. 2002).

8th Circuit rules personal use drugs are not relevant to possession with intent to distribute. (270) Many circuits, including the Eighth Circuit, have held that drug quantities purchased for personal use by a member of a drug conspiracy are relevant in determining the drugs attributable to a defendant. See, e.g. U.S. v. Behler, 100 F.3d 632 (8th Cir. 1996). However, the circuits are split on whether personal use drugs are relevant conduct where the offense is possession with intent to distribute. The Eighth Circuit, siding with the Seventh and Ninth Circuits, held that drugs possessed for personal use are not relevant to the crime of possession with intent to distribute. U.S. v. Kipp, 10 F.3d 1463 (9th Cir. 1993); U.S. v. Wyss, 147 F.3d 631 (7th Cir. 1998). But see U.S. v. Antonietti, 86 F.3d 206 (11th Cir. 1996). There is an important distinction between a conviction for conspiracy to distribute and a conviction for possession with intent to distribute. When a conspirator purchases drugs for his personal use from a co-conspirator, the personal use quantities are relevant in determining the quantity of drugs distributed by the conspiracy. However, where the defendant is convicted solely of possession with intent to distribute, those drugs acquired for personal consumption are possessed without intent to distribute, and they were not acquired from another person who was part of a conspiracy to distribute. The district court here erred in failing to determine what portion of the methamphetamine defendant attempted to purchase were intended for her personal use. Judge Hansen dissented. U.S. v. Fraser, 243 F.3d 473 (8th Cir. 2001).

8th Circuit holds that previous drug transactions were relevant conduct. (270) Defendant argued that the court erred in including drug quantities associated with events that occurred in 1994 and 1996, several years before the conspiracy to which he pled guilty. These events included a 1994 incident in which defendant purchased several ounces of cocaine and crack from an undercover informant, a 1996 incident in which defendant sold several ounces of crack to an Indiana undercover officer, and a separate 1996 incident in Indiana in which defendant was discovered in possession of more than a pound of crack. The Eighth Circuit held that the district court did not err in including the 1994 and 1996 events as relevant conduct. Defendant was a longtime cocaine dealer, interrupted only by his occasional stays in prison. While these events were separated temporally from the charged conduct, there was evidence to show that defendant was engaged in a career of drug dealing going back to at least 1994. These events in question were close to the charged conduct in both their similarity and their regularity. The sentencing increase caused by court’s consideration of the relevant conduct was not sufficient to require a heightened standard of proof. If the relevant conduct were excluded, defendant would have a sentencing range of 235-293 months. The increase to a range of 360 months to life was not so significant as to raise due process concerns. U.S. v. Anderson, 243 F.3d 478 (8th Cir. 2001).

8th Circuit finds numerous errors in drug quantity calculation. (270) The Eighth Circuit found a number of errors in the district court’s drug quantity calculation. First, the court held defendant accountable for 520.7 grams of crack associated with an uncharged shooting incident. A police report stated that bags found at the scene contained 520.7 grams of “crack/cocaine,” but a chemist who tested the substance reported that it was “powder cocaine with a total weight of 490.9 grams.” It was clearly erroneous to find that the substance was crack, since the chemist said that it was powder cocaine. Moreover, it was clearly erroneous to attribute any of these drugs to defendant since the only evidence tying them to him was the fact that they were found in a car that contained a briefcase with papers that were somehow connected to defendant. The court also clearly erred in attributing 57 grams of crack to defendant based on the hearsay testimony of an officer who said that Ford, one of defendant’s co-conspirators, sold 57 grams of crack to an unnamed confidential informant. The officer testified that he had “no idea” where Ford obtained the crack, and thus there was nothing in the record to connect defendant with these drugs. Finally, the court erroneously held defendant accountable for 43 grams of crack seized at a co-conspirator’s house. That conspirator said that the crack came from someone other than defendant. Nonetheless, none of these errors affected defendant’s sentence, since his guideline range did not change and he was sentenced at the bottom of the range. U.S. v. Anderson, 243 F.3d 478 (8th Cir. 2001).

8th Circuit holds defendant accountable for meth with same appearance and purity as meth in his bedroom. (270) At defendant’s house, police found the following: 1.42 grams of methamphetamine, black tape, and a snorter tube in defendant’s bedroom closet; 3.62 grams of meth in a coat pocket in the living room; and 161.51 grams of meth hidden behind a panel within a bathroom vanity. The drugs found in the bathroom were wrapped into balls secured by the same type of black tape found in defendant’s bedroom. Although defendant contended that only the 1.42 grams seized from his bedroom were attributable to him, the district court held him accountable for the meth recovered from the bathroom, noting that both had the same appearance, consistency and purity. Furthermore, the black tape and packaging material were found with the drugs in both locations. The district court also conducted a careful evaluation of the government’s witnesses at trial and concluded they were credible, their testimony was reliable, and they stood virtually unchallenged. Credibility determinations are squarely within the province of the district court and “virtually unreviewable on appeal.” Thus, the Eighth Circuit ruled that the district court did not err in determining drug quantity. U.S. v. Gonzalez-Rodriguez, 239 F.3d 948 (8th Cir. 2001).

8th Circuit upholds consideration of drugs involved in acquitted conduct. (270) Defendant argued that basing his sentence on drugs involved in an acquitted count rendered the jury’s acquittal meaningless and violated his 6th Amendment right to a jury trial. The Eighth Circuit upheld the use of the drugs involved in the acquitted count. Defendant was not acquitted of every charge, and the acquitted charge and the convicted charge both included the time period of August 9, 1996. This case involved an inconsistent verdict, where defendant was acquitted of possession with intent to distribute on August 9, 1996, but convicted of conspiracy to distribute meth. Juries can return inconsistent verdicts. Acquitted conduct can be considered when determining a sentence so long as that conduct has been proved by a preponderance of the evidence. U.S. v. Madrid, 224 F.3d 757 (8th Cir. 2000).

8th Circuit agrees defendant was accountable for all drugs in shipment. (270) The district court set defendant’s offense level at 38 for an offense involving more than 15 kilograms of methamphetamine. The Eighth Circuit found defendant’s involvement in one 15.9 kilogram shipment was sufficient to support the drug quantity finding. Defendant conceded that he knew the shipment was coming and at one point offered to go out to California and get it himself. Although defendant contended that the shipment was to be divided among him and other participants in the conspiracy, the district court found to the contrary. The court quoted a taped conversation between defendant and a co-defendant. Defendant is told that “as soon as they get here … all of them are yours.” “They” and “them” referred to quantities of methamphetamine, including the 15.9 kilogram shipment under discussion. Other quotations from taped conversations supported this finding. U.S. v. Bahena, 223 F.3d 797 (8th Cir. 2000).

8th Circuit says defendant not accountable for additional drugs possessed by his seller. (270) The district court attributed 14 grams of cocaine base to defendant based on a government witness who testified at trial that he had bought 15-20 grams of cocaine from defendant between July and November 1995. The Eighth Circuit ruled that the 1995 transactions were sufficiently connected to the charged offense to constitute the “same course of conduct,” since they also involved the sale of cocaine base in the same city as the charged drug offense, and occurred just four to six months earlier. However, the district court clearly erred in attributing to defendant 31.8 grams of cocaine base found on Taylor, the supplier from whom defendant had bought the 3.33 grams involved in the offense of conviction. Merely purchasing drugs from someone for resale does not demonstrate that the sale of all drugs remaining in the seller’s possession is jointly undertaken activity between the seller and the buyer. “Simply because a defendant knows that a dealer he works with sells large amounts of drugs to other people does not make the defendant liable for the dealer’s other activities.” U.S. v. Moore, 212 F.3d 441 (8th Cir. 2000).

8th Circuit holds that previous meth offenses were not part of current meth conspiracy. (270) Defendant argued that her two previous convictions for possession of methamphetamine were relevant conduct and thus should be included in her criminal history. The Eighth Circuit ruled that the previous possession offenses were not part of the current drug conspiracy. The possession convictions involved conduct that took place October 5, 1995, and February 29, 1996. The current case charged defendant with conspiring to manufacture meth between April 22, 1996, and December 1995, well after the charged conduct. Neither of these prior convictions took place “during the commission of the offense of conviction,” USSG § 1B1.3(a)(1)(A), and neither were connected to the conspiracy offense. No common plan or victim linked them. Simple possession of an amount of meth consistent with personal use is not in itself preparation or furtherance of a conspiracy to manufacture meth. U.S. v. Davidson, 195 F.3d 402 (8th Cir. 1999).

8th Circuit relies on hearsay to determine relevant conduct. (270) The PSR said that Barrett made a pretrial statement that from 1990 to November 1992, defendant and another man sold one to two ounces of crack cocaine per week from various Barrett drug houses. At sentencing, a police detective confirmed the PSR’s information, testifying that Barrett had told him about defendant’s drug sales during a pretrial interview. The Eighth Circuit upheld the district court’s reliance on the detective’s hearsay testimony to determine defendant’s relevant conduct. Hearsay evidence is admissible at sentencing if the evidence is sufficiently reliable. Here, the district court could properly find credible the detective’s testimony that Barrett linked defendant to the sale of an ounce of crack a week between 1990 and 1992. Defendant had an opportunity to cross-examine the detective about the statements, and did so. The statements were not inconsistent with Barrett’s trial testimony. Barrett did not testify about specific drug amounts at trial because drug quantity is not an essential element of a conspiracy offense. U.S. v. Jones, 195 F.3d 379 (8th Cir. 1999).

8th Circuit relies on hearsay to hold defendant accountable for drugs involved in dismissed counts. (270) Police intercepted nearly a kilogram of methamphetamine at the airport. To link defendant to these drugs, a Special Agent testified that a co-conspirator named Neri told him that defendant was involved with these drugs. Several interview reports between Neri and other law enforcement officers also stated that Neri had reported that defendant was involved with the drug shipment that was intercepted at the airport. The Eighth Circuit upheld the district court’s reliance on the hearsay testimony linking defendant to the drugs seized at the airport. Hearsay evidence is admissible at sentencing and can form the basis for sentencing determinations. The district court could properly have found the agent’s testimony credible. The testimony was supported in substance by Neri’s statements to other law enforcement officers, as reflected in their reports. Defendant was given ample opportunity to call Neri as a witness and challenge these statements, but declined to do so. U.S. v. Alvarez, 168 F.3d 1084 (8th Cir. 1999).

8th Circuit relies on witness who saw 9 ounces of crack despite conflicting testimony. (270) Defendant was convicted of a crack cocaine conspiracy. At trial, a witness testified that he purchased crack cocaine from defendant on a specific occasion and, during the course of this transaction, observed a total of 9 ounces of crack. At sentencing, defendant attacked the witness’s credibility by presenting the testimony of various residents of the house in which defendant allegedly displayed the 9 ounces of crack. Each resident testified that the witness was never in their home. The Eighth Circuit held that the district court did not err in attributing to defendant the nine ounces of crack testified to by the witness. The court, faced with conflicting testimony, did not expressly make a credibility finding, but it was apparent that the court chose to credit the witness’s testimony regarding the 9 ounces of crack. Although an express credibility finding would have been preferable, there was no violation of Rule 32(c)(1) because the court’s assessment of witness credibility was evident. U.S. v. Moss, 138 F.3d 742 (8th Cir. 1998).

8th Circuit rules language “the United States submits” is not a stipulation. (270) Defendant’s plea agreement provided that the stipulations and recommendations in the agreement were not binding on the court. The paragraph further provided that the “United States submits” that the amount of cocaine base for sentencing purposes was between 50 grams and 150 grams, yielding a base offense level of 32. The Eighth Circuit held that the plea agreement did not contain a drug quantity stipulation. The drug quantity simply set out the government’s position with respect to sentencing. Defendant in no way agreed to this position. Other parts of the agreement clearly included the phrase “the parties stipulate.” Since the government only presented evidence of the 6.84 grams involved in the offense of conviction, there was no basis for holding defendant accountable for between 50 and 150 grams of crack. Moreover, because there was no proof of this relevant conduct, there was no basis for finding that defendant was untruthful when he denied involvement with more than 6.84 grams of crack. Therefore, there were no grounds for denying safety valve protection. On remand, the parties were free to present drug quantity evidence. U.S. v. Kang, 143 F.3d 379 (8th Cir. 1998).

8th Circuit holds drug transaction several months earlier was relevant conduct. (270) Defendant was convicted of a marijuana charge in connection with a May 1996 drug transaction. The district court included as relevant conduct 250 pounds of marijuana defendant bought from a government informant in December 1995. The Eighth Circuit held that the prior drug transaction was relevant conduct since it occurred within a few months of the instant transaction and involved distributing the same quantities of marijuana as involved in this case. Also, the government presented evidence of October 1995 phone calls between defendant and one of his associates involved in the instant transaction, which suggested continuing involvement by the associate in defendant’s drug trafficking activities. U.S. v. Spence, 125 F.3d 1192 (8th Cir. 1997).

8th Circuit finds chicken wire around marijuana in national park was defendant’s signature. (270) Defendant was observed pruning and harvesting marijuana patches in a national forest. Police found several kilograms of marijuana, some seeds, cash, guns, and chicken wire in his nearby home. The district court held him accountable for all of the marijuana plants encircled by chicken wire in the forest in 1992 and 1993, as well as all plants without chicken wire found in 1993 in locations that had chicken wire in 1992. All of the plants were within a seven‑mile radius of defendant’s home. The Eighth Circuit held that the chicken wire was a sufficient “signature” to attribute the marijuana plants to defendant. Defendant was photographed in a patch with chicken wire, was seen driving in the vicinity of other such patches, and admitted growing marijuana in the park for over three years. The court also properly attributed to defendant 35 plants protected by an old garden fence and 69 plants found in a ditch. These plants were found near the wire‑encircled plants, and the officers concluded that these plants were attributable to the same grower. U.S. v. Betz, 82 F.3d 205 (8th Cir. 1996).

8th Circuit says drug evidence met heightened standard of proof. (270) Defendant agreed to sell undercover officers two ounces of cocaine. At sentencing, the district court held him accountable for 1578 grams of cocaine and 542 grams of cocaine base from a safe located in an apartment to which defendant had keys. He argued that the court should have used a heightened standard of proof at sentencing, because the drugs found in the safe increased his base offense level from 16 to 36 and resulted in a nine-fold increase in sentencing range. The Eighth Circuit affirmed, since even if this was a case requiring a heightened standard of proof, the evidence met such standard. Defendant possessed the key to the apartment, had visited the apartment just prior to the drug transaction, and the occupant of the apartment identified defendant as the individual who placed the safe there. The drugs found in the safe were reasonably foreseeable amounts and types. U.S. v. Murray, 67 F.3d 687 (8th Cir. 1995).

8th Circuit upholds drug quantity determination. (270) The Eighth Circuit upheld the district court’s determination that defendant was accountable for between 5 and 15 kilograms of cocaine. Defendant did not challenge the court’s determination that he was responsible for 4,196.5 grams. The trial court further found that defendant was responsible for an additional 1,000 grams of cocaine in another transaction. One co-conspirator testified that defendant was present during his purchase of one kilogram, and observed defendant handling a large amount of cash. Finally, the district court found that defendant admitted that he was responsible for an additional 1,953.6 grams described in the PSR. These quantities put the amount of cocaine chargeable to defendant well in excess of five kilograms. U.S. v. Skorniak, 59 F.3d 750 (8th Cir. 1995).

8th Circuit holds relevant conduct not appealable where defendant received downward departure from mandatory minimum. (270) Defendant argued that the district court erroneously included in his sentencing calculation drug quantities from his dismissed counts. The 8th Circuit found that the issue was not appealable, since defendant received a substantial downward departure below an otherwise applicable mandatory minimum. The extent of such a departure is not reviewable on appeal. Moreover, even if the sentence was reviewable, a sentencing court may consider, as relevant conduct, the conduct charged in dismissed counts. U.S. v. Karam, 38 F.3d 467 (8th Cir. 1994).

8th Circuit upholds consideration of prior marijuana deliveries. (270) Defendants were arrested after a co-conspirator delivered 45 pounds of marijuana to their farm. The 8th Circuit upheld the consideration at sentencing of the marijuana the co-conspirator previously delivered to defendants (about 46 pounds). The district court heard the co-conspirator’s testimony regarding the quantities of marijuana he delivered to the farm from 1990 to 1992. His story was corroborated by his tape-recorded conversation with one of the defendants, who paid him $300, as she had on prior deliveries. Drug paraphernalia on the farm supported the court’s conclusion that defendants distributed the marijuana previously delivered to them. U.S. v. Bieri, 21 F.3d 811 (8th Cir. 1994).

8th Circuit relies on defendant’s post-arrest statements to find drug quantities. (270) Defendant was arrested after a crack cocaine transaction. The district court relied upon defendant’s post-arrest statements to authorities describing his previous crack transactions to determine drug quantity. The 8th Circuit affirmed. The government introduced testimony corroborating the statements. Although defendant testified he had never engaged in any crack transactions before the day of his arrest, and that he did not remember making any statement to authorities, the court was entitled to discredit his testimony. U.S. v. Wyatt, 19 F.3d 1283 (8th Cir. 1994).

8th Circuit considers drugs in counts for which defendant was not convicted. (270) Defendant was convicted of a drug conspiracy and one substantive count, was acquitted of two other counts, and the jury was undecided on the remaining nine substantive counts. She argued that her sentence should have been determined only by considering the amount of cocaine involved in the substantive count for which she was convicted. The 8th Circuit rejected this claim. The amounts of cocaine for which defendant could be held responsible need not have been proven beyond a reasonable doubt. Therefore, the trial court could have considered drug quantities involved in the counts that did not result in conviction because they were part of the conspiracy. U.S. v. Finch, 16 F.3d 228 (8th Cir. 1994).

8th Circuit says consideration of “bad batch” of methamphetamine was not plain error. (270) Defendant was involved in a conspiracy to distribute methamphetamine. After the drug ring received a “bad batch” of methamphetamine from its source in California, defendant was sent to California to pick up a replacement batch. Defendant challenged, for the first time on appeal, the district court’s decision to hold him responsible for both the bad batch and the replacement batch. The 8th Circuit affirmed, holding that if there was error, it was not plain. The court had not previously addressed this issue, and the guidelines do not speak directly to this question. Therefore, no error could have been clear to the district court. U.S. v. Jennings, 12 F.3d 836 (8th Cir. 1994).

8th Circuit agrees that conspiracy was not relevant conduct for drug distribution charge. (270) Defendant was convicted of distributing cocaine in December 1991, and was acquitted of a conspiracy to distribute more than five kilograms of cocaine in early 1991. The 8th Circuit upheld the district court’s determination that defendant’s participation in the conspiracy was not relevant conduct that had to be considered in determining the appropriate sentence for the distribution count. The trial court’s conclusions on the questions of relevant conduct are factual in nature and are therefore reviewed only for clear error. The trial court’s finding that the conspiracy was not part of the same course of conduct or common scheme or plan as the distribution count was not clearly erroneous. U.S. v. Balano, 8 F.3d 629 (8th Cir. 1993).

8th Circuit upholds consideration of uncharged marijuana. (270) The 8th Circuit affirmed that defendant was accountable for more than 125 pounds of marijuana, even though he was only charged with 42 pounds. A court may consider amounts of drugs from the defendant’s other drug dealings, provided those other dealings were part of the same course of conduct or scheme as the offense of conviction. U.S. v. Abanatha, 999 F.2d 1246 (8th Cir. 1993).

8th Circuit remands for explanation of defendant’s responsibility for additional marijuana. (270) Defendant was arrested after leaving a site where a large quantity of marijuana was drying. He was in possession of two bundles of marijuana. The marijuana at the drying site belonged to his brother. Defendant claimed he was not responsible for the entire quantity of marijuana at the drying site, had nothing to do with its harvesting or processing, and was merely stealing some from his brother for some extra money. The government advanced two theories for basing defendant’s sentence on all the marijuana: (a) defendant had access to it and thus had constructive joint possession, and (b) defendant had joined his brother’s ongoing marijuana distribution activity. The district court held defendant accountable for the full quantity, but did not explain which of the government’s alternative theories it found persuasive. The 8th Circuit remanded for the court to make findings as to why it found defendant responsible for the entire amount of marijuana at the drying site. U.S. v. Coleman, 990 F.2d 419 (8th Cir. 1993).

8th Circuit rejects heightened standard of proof where relevant conduct increased guidelines from six to 16 months. (270) The district court’s decision to consider certain relevant conduct increased defendant’s base offense level by six and elevated his sentencing range from zero to six months to 10 to 16 months. Relying on U.S. v. Galloway, 976 F.2d 414 (8th Cir. 1992) (en banc), the 8th Circuit rejected defendant’s claim that this increase required a standard of proof more stringent than a preponderance of the evidence. U.S. v. Coleman, 990 F.2d 419 (8th Cir. 1993).

8th Circuit finds 1982 marijuana flight was not relevant conduct for cocaine conspiracy. (270) Defendant was convicted of conspiring to distribute cocaine. He admitted at trial that in 1982 he had received a pound of cocaine as security for the payment due to him for flying a plane load of marijuana into the country, and that when the payment was not forthcoming he sold the cocaine. This was his first involvement in selling cocaine. The 8th Circuit affirmed that this incident was not relevant conduct for the instant offense. It involved a different drug (marijuana rather than cocaine), different conduct (flying drugs into the country as a hired pilot, rather than actively distributing them), and different people. U.S. v. Lewis, 987 F.2d 1349 (8th Cir. 1993).

8th Circuit finds other drug transactions were part of same course of conduct. (270) Defendant negotiated to purchase various quantities of methamphetamine, cocaine and marijuana from an undercover agent. The 8th Circuit also held defendant responsible for marijuana and cocaine he sold during the same approximate time frame, affirming that they were part of the same course of conduct as his dealings with the undercover agent. The quantity of marijuana that defendant negotiated to purchase from the agent was larger than the quantity he normally kept on hand, but the difference was not significant. There was nothing in the record to contradict the conclusion that the buyers for the cocaine and marijuana that defendant anticipated obtaining from the agent would be any different from those who were already buying the cocaine and marijuana that defendant acquired from other suppliers. All of the transactions took place in Arkansas. U.S. v. Nichols, 986 F.2d 1199 (8th Cir. 1993).

8th Circuit says crack cocaine in defendant’s purse after theft arrest was part of instant offense. (270) On two occasions, defendant sold a “rock” of crack cocaine from her apartment to an undercover agent. That same week, she was arrested on unrelated theft charges, and police found a plastic bag with about 40 rocks of crack cocaine (4.58 grams) and $133 in defendant’s purse. Defendant pled guilty to distributing crack cocaine. The 8th Circuit upheld including the 4.58 grams of crack cocaine in defendant’s base offense level. Defendant’s possession of this crack was part of the same course of conduct as the distribution offense to which she pled guilty. The evidence supported the finding that she held the crack cocaine for sale. She previously told the undercover agent she did not use crack cocaine herself, $133 was found in her purse along with the crack, and she had sold crack twice during the week prior to the seizure. In all three instances, the crack cocaine was in a plastic bag on defendant’s person. U.S. v. Chatman, 982 F.2d 292 (8th Cir. 1992).

8th Circuit rejects use of “baseless conclusion” by probation officer to resolve disputed issue. (270) Defendant was indicted on various drug charges, but the government moved to dismiss two of the counts where the surveillance team had been unable to track a drug dealer. No evidence was introduced at trial relating to these transactions. Over objection, the court relied on the probation report’s inclusion of these drug quantities in sentencing. The 8th Circuit reversed. Once a defendant objects, the government must establish the fact by a preponderance of the evidence. Once alerted to defendant’s objections, the court had an obligation to receive evidence other than the probation officer’s conclusions and make specific factual findings regarding the disputed facts. It was error rely solely on a presentence report containing “a baseless conclusion” by a probation officer to resolve the fact in issue. U.S. v. Bluske, 969 F.2d 609 (8th Cir. 1992).

8th Circuit affirms that uncharged drug sales in other states were part of same course of conduct as offense of conviction. (270) The 8th Circuit rejected defendant’s claim that only the marijuana he distributed in the state of Nebraska should be included in the calculation of his base offense level. The guidelines expressly provide that the base offense level should be based on all acts that were part of the same course of conduct as the offense of conviction. There was no clear error in the district court’s determination that defendant’s distribution of marijuana to states other than Nebraska was part of the same course of conduct as the charged conspiracy. Defendant testified that he obtained this marijuana from the same sources as the marijuana sent to Nebraska and distributed it during the same time period. U.S. v. Davila, 964 F.2d 778 (8th Cir. 1992).

8th Circuit upholds consideration of drugs involved in acquitted counts. (270) The 8th Circuit rejected defendant’s claim that he should not be held accountable for cocaine related to circumstances charged in counts of which he was acquitted. A verdict of acquittal only demonstrates lack of proof beyond a reasonable doubt and does not establish innocence. The facts underlying an acquittal may be considered by the district court for sentencing purposes when those facts appear to be sufficiently reliable, and the government does not need to prove those facts beyond a reasonable doubt. U.S. v. Olderbak, 961 F.2d 756 (8th Cir. 1992).

8th Circuit upholds consideration of uncharged conduct in pre-guidelines case. (270) In a pre-guidelines case, defendant contended that his sentence was excessive because the district court considered inappropriate and irrelevant information connecting him to other uncharged conduct. Specifically, defendant objected to the portion of the presentence report which indicated that he had provided cash to an unindicted co-conspirator for the purchase of cocaine in California. The 8th Circuit rejected this claim, since at sentencing a judge is given broad discretion as to the type of information he may consider. Defendant was given the opportunity to rebut and explain the information contained in the presentence report. An evidentiary hearing was held to address defendant’s numerous objections to the presentence report. Defendant’s 15-year sentence was not excessive because it fell within the statutory limits of 21 U.S.C. sections 841(b)(1)(B) and 846. U.S. v. Dunlop, 960 F.2d 55 (8th Cir. 1992).

8th Circuit rules marijuana transaction was not part of same course of conduct as cocaine conspiracy. (270) The 8th Circuit rejected the district court’s determination that defendant’s involvement in an attempted marijuana purchase was part of the same course of conduct as the cocaine conspiracy. Under U.S. v. Lawrence, 915 F.2d 402 (8th Cir. 1990), the distribution of marijuana and cocaine can be part of the same course of conduct if the facts reveal a “continuous pattern of drug activity.” Here, there was nothing in the record linking the Florida marijuana negotiations with the Nebraska cocaine conspiracy. Two vague statements by government witnesses suggested defendant’s involvement with marijuana, but were insufficient to establish a connection between the Florida transaction and the Nebraska conspiracy three months later. U.S. v. Montoya, 952 F.2d 226 (8th Cir. 1991).

8th Circuit rules drugs involved in 1983 state conviction were not part of same course of conduct as 1989 federal conviction. (270) The district court calculated defendant’s base offense level by adding the drugs involved in his offense of conviction, which took place in 1989, with the amount of drugs involved in a state conviction in 1983. The 8th Circuit reversed the district court’s determination that the drugs involved in the 1983 conviction were part of the same course of conduct as the offense of conviction. Under no circumstances could defendant now be criminally liable or “accountable” in 1989 for the conduct that resulted in his conviction in 1983. The district court’s approach was at variance with the guidelines’ basic approach of separating the nature and circumstances of the offense from the history and characteristics of the offender. The 1983 conviction should have been included in defendant’s criminal history, not his offense level. U.S. v. Barton, 949 F.2d 968 (8th Cir. 1991).

8th Circuit affirms that defendant bought one pound of methamphetamine for resale, not personal use. (270) The 8th Circuit rejected defendant’s contention that it was error for the district court to determine that he purchased one pound of methamphetamine from his suppliers for resale, rather than personal use. Witnesses testified that he bought methamphetamine in one ounce quantities, that those quantities were too big for personal use, that defendant packaged the drugs in smaller quantities for resale, and that defendant frequently sold the drugs to others. The court also rejected defendant’s claim that the finding as to drug quantity should be set aside because he was denied the right to confront the witnesses against him. Although the presentence report and sentencing hearing contained many hearsay reports, the district court primarily relied upon the direct testimony of one witness. This witness testified that she was the bookkeeper of one of defendant’s buyers, and that this buyer bought at least one pound of methamphetamine from defendant. This witness’s statements were not hearsay and defendant was able to cross-examine her about them. U.S. v. Apfel, 945 F.2d 236 (8th Cir. 1991).

8th Circuit affirms reliance upon co-defendant’s statements in sentencing defendant. (270) Defendant objected to the district court’s consideration of 42 grams of cocaine involved in a trip he allegedly made to Aberdeen, South Dakota for the purpose of distributing the cocaine. The government learned of this trip from a co-defendant after defendant had entered into his plea agreement. Defendant contended that it was improper to use this information, claiming that his own guilty plea “forced” his co-defendant to plead guilty. Therefore, defendant argued that the government was using against defendant “indirect information gained by defendant’s cooperation.” The 8th Circuit found no impropriety in using a co-defendant’s statements against a defendant who has pled guilty. There was no merit in defendant’s argument that defendant’s guilty plea “forced” the co-defendant to plead guilty and prevented the co-defendant’s statements from being used against defendant. U.S. v. Hewitt, 942 F.2d 1270 (8th Cir. 1991).

8th Circuit holds “no further prosecution” clause bars considering additional drugs known at time of plea. (270) After defendant’s arrest carrying 170 grams of cocaine, he admitted making two prior trips to distribute cocaine. In his plea agreement, the government agreed that unless evidence established otherwise, defendant was involved with 394 grams of cocaine. A police detective then told the probation officer that a co-defendant had said that defendant had made six or eight prior trips to distribute cocaine. The prosecutor was not aware of this information at the time of the plea agreement. Nonetheless, the 8th Circuit found that it was improper to rely on these additional trips. The quantity of drugs involved was unknown, and the other police detective who was present did not recall the co-defendant making such a statement. Furthermore, the “no further prosecution” clause in defendant’s plea agreement barred further prosecution based upon information then available to the government. The government, via the police detective, had the information regarding the additional trips at the time the plea agreement was executed. U.S. v. Hewitt, 942 F.2d 1270 (8th Cir. 1991).

8th Circuit includes gift of cocaine in relevant conduct. (270) The 8th Circuit affirmed including In calculating defendant’s base offense level, the district court included three ounces of methamphetamine defendant purchased, and three-quarters of an ounce of cocaine which defendant gave to one of his customers as a Christmas gift. A witness testified that the witness’s methamphetamine supplier was unable to sell to the witness three ounces of methamphetamine which had been promised to him because the supplier sold the drug to defendant. Defendant later sold three-quarters of an ounce of methamphetamine to the witness. This testimony supported the reasonable inference that the supplier sold three ounces to defendant, who then sold part of it to the witness. With respect to the cocaine gift, testimony showed that this gift was intended to foster the relationship between the customer and defendant. The 8th Circuit agreed that the business practice of keeping valued customers happy with Christmas gifts was part of the ongoing drug conspiracy, and was properly included in defendant’s base offense level. U.S. v. Fuller, 942 F.2d 454 (8th Cir. 1991).

8th Circuit affirms consideration of types and quantities of drugs not specified in offense of conviction. (270) Defendants argued that their sentences were unconstitutionally imposed because their indictments failed to specify that cocaine base (crack) would be included in determining the amount of drugs used to calculate their base offense level. Defendants were only charged and convicted of cocaine offenses. The 8th Circuit upheld the sentences, following circuit precedent which established that the guidelines require consideration of types and quantities of drugs not specified in the offense of conviction, if they were part of a common scheme or plan as the offense of conviction. Senior Circuit Judge Heaney dissented, finding the district court improperly enhanced defendants’ sentences based upon amounts of crack that were not charged in the indictment and were not proven at trial. The government’s failure to charge crack offenses allowed the government to use the sentencing proceeding, with its lower burden of proof, to dramatically enhance defendants’ sentence. The fact that the sentences were less than the statutory maximum had little meaning since the statutory maximums were set at a time when parole was available. U.S. v. Payne, 940 F.2d 286 (8th Cir. 1991).

8th Circuit reverses offense level calculation based upon drugs to be produced from lab which was never found. (270) Defendant offered to sell an amphetamine lab for $50,000 to an undercover officer. Defendant claimed the lab was capable of producing seven or eight pounds of amphetamine. No transaction concerning this lab ever occurred and the officer never saw the lab in question. A few months later, defendant was arrested for attempting to deliver six ounces of amphetamine. The 8th Circuit reversed the district court’s calculation of defendant’s offense level based upon an intent to manufacture seven pounds of amphetamine. The drug lab defendant offered to sell the undercover agent was never shown to exist, no equipment or drugs of any kind were ever discovered, the officer never saw any drugs and did not smell on defendant’s person the odor associated with amphetamine production. Defendant also had a propensity to exaggerate. Moreover, although defendant had agreed to sell six ounces of amphetamine, he was to obtain the drugs from his source. After leaving the money for the drugs with his source, the source would later inform defendant of the location of the amphetamine. These facts were not indicative of one who owned a drug lab. Judge Bowman dissented to this portion of the opinion. U.S. v. Burks, 934 F.2d 148 (8th Cir. 1991).

8th Circuit finds uncharged conduct was not proven by a preponderance of the evidence. (270) The district court included in defendant’s offense level cocaine found in a neighbor’s apartment. The 8th Circuit reversed. A confidential informant asserted that both apartments were used to store drugs for defendant’s half-brother, a reputed drug kingpin. But the investigation failed to corroborate critical aspects of the informant’s story. Most significantly, a search of defendant’s apartment failed to produce the alleged drug proceeds, which formed the only direct link between defendant and the purported drug dealings between the neighbor and defendant’s half-brother. The government did not call the confidential informant to explain the link, and produced no chemical evidence to establish that the cocaine found in the two apartments came from the same source. U.S. v. Townley, 929 F.2d 365 (8th Cir. 1991).

8th Circuit reverses district court’s consideration of uncharged conduct. (270) The district court included in defendant’s base offense level four kilograms of cocaine seized from four bus passengers three months prior to defendant’s arrest. A purse from one of the passengers contained a group photograph of defendant and his half-brother, a reputed drug kingpin. Defendant approached the officers during the passengers’ arrest and indicated that he had come to pick up the passengers. He was carrying a pager and wearing a medallion similar to that worn by two of the passengers. When questioned by police, defendant initially denied any relationship to his half-brother. One of passengers stated that the cocaine was intended for defendant’s half-brother. The 8th Circuit found this evidence insufficient to justify including the four kilograms in defendant’s offense level. “Although [defendant] could have been a culpable participant, he also could have embarked on an innocent favor.” The government presented no proof that defendant maintained regular contact with his half-brother or knew the workings of the half-brother’s drug ring. U.S. v. Townley, 929 F.2d 365 (8th Cir. 1991).

8th Circuit upholds sentencing defendant on the basis of drugs intercepted by authorities. (270) A postal inspector intercepted a parcel directed to defendant’s address. Law enforcement officers removed almost four kilograms of cocaine from the package, leaving one ounce in the package with several packages of flour to simulate the weight of the removed cocaine. Defendant argued that it was improper to sentence him on the basis of the four kilograms of cocaine never delivered to him. Following the 7th Circuit’s decision in U.S. v. White, 888 F.2d 490 (7th Cir. 1989), the 8th Circuit rejected this argument. It would perpetuate irrational distinctions to make a large sentencing difference depend upon whether the government decided to drain most of the drugs from a package directed to defendant. U.S. v. Franklin, 926 F.2d 734 (8th Cir. 1991).

8th Circuit rules that distributing cocaine was relevant conduct for marijuana conviction. (270) Defendant pled guilty to conspiracy to distribute marijuana. He later admitted purchasing and selling cocaine various times over an eight-year period. The 8th Circuit upheld the district court’s determination that defendant’s cocaine involvement constituted “relevant conduct” for the purpose of determining his offense level. Defendant’s cocaine sales were part of the same course of conduct as his marijuana distribution: he possessed the cocaine during the same period as his marijuana conspiracy, he had at least one common customer for his marijuana and cocaine dealings, and his source of marijuana was also a large-scale cocaine dealer. Since there was sufficient evidence of the same course of conduct, it was not necessary to determine whether the cocaine offense was part of the same common scheme or plan as the marijuana conspiracy. U.S. v. Lawrence, 915 F.2d 402 (8th Cir. 1990).

8th Circuit upholds plea despite defendant’s belief that sentence would be based only on cocaine in offense of conviction. (270) Defendant pled guilty to distributing 4.4 pounds of cocaine, and was sentenced on the basis of all the cocaine distributed by the conspiracy, placing him in the range of 5 to 14.9 kilograms. Defendant claimed that he misunderstood how the guidelines would be applied, and moved to withdraw his guilty plea. The 8th Circuit affirmed the denial of the motion. Defendant had been advised of the range of possible punishment and was told that the guidelines applied. The 8th Circuit also found that it was proper to base defendant’s sentence on the total amount of cocaine that defendant distributed, not just the amount listed in the charged offense. U.S. v. Hoelscher, 914 F.2d 1527 (8th Cir. 1990).

8th Circuit finds that district court’s consideration of additional cocaine was harmless error. (270) The district court included, in calculating defendant’s base offense level, amounts of cocaine that a government informant testified she had delivered to defendant during the two-year period prior to defendant’s arrest. The informant was unable to recall when she made certain of the deliveries, and the informant’s only knowledge of the quantities involved was her recollection that the packages she delivered were about the same size as the one she delivered to defendant prior to defendant’s arrest. The 8th Circuit found that it was improper to include these amounts in the calculation of defendant’s base offense level, since the testimony did not clearly establish either the dates on which these deliveries were made or the quantity of cocaine delivered. However, since defendant’s base offense level was not affected by these amounts, the error was harmless. U.S. v. Phillippi, 911 F.2d 149 (8th Cir. 1990).

8th Circuit upholds consideration of drugs in dismissed count where defendant did not specifically object to presentence report. (270) The 8th Circuit held that the guidelines “clearly anticipate including quantities of drugs from uncharged or dismissed counts in the calculation of a defendant’s base offense level.” Defendant’s complaint that no evidence was introduced to the amount of drugs was rejected on the ground that he did not make a “sufficiently specific” objection to the portion of the presentence report in question. “In the absence of objection alerting the court to the need for a specific finding, the court may rely on the presentence report.” U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).

8th Circuit holds that uncharged cocaine was properly used to determine base offense level. (270) At sentencing, the district court used 369 grams of cocaine seized at the time of defendant’s arrest in determining offense level, although no charges were brought concerning this cocaine. The 8th Circuit affirmed the district court’s finding, ruling that under guidelines 1B1.3(a)(2), uncharged drugs that are part of a common plan or scheme can be used in determining a base offense level. The standard for determining whether such drugs were part of a common plan or scheme was held to be “preponderance of the evidence.” The district court’s conclusion that the drugs were part of a common plan or scheme was not clearly erroneous. U.S. v. Sleet, 893 F.2d 947 (8th Cir. 1990).

8th Circuit upholds reliance on uncharged cocaine sales under “relevant conduct” guideline. (270) The district court found that uncharged sales of cocaine were part of the same course of conduct as the counts of conviction, and therefore could be considered “relevant conduct” under § 1B1.3 in setting the base offense level for the drug offense under § 2D1.1. The 8th Circuit affirmed this ruling as not clearly erroneous, noting that the cocaine sales were of a similar character and were conducted in the same geographical area within a few months of the offenses of conviction. U.S. v. Gooden, 892 F.2d 725 (8th Cir. 1989).

8th Circuit holds sentence was properly based on two kilos of cocaine even though defendant pled to only three ounces. (270) Defendant pled guilty to distributing three ounces of cocaine, and the other charges were dropped, including a charge of possession of one kilogram of cocaine with intent to distribute. At sentencing, the government introduced a taped conversation in which defendant told the undercover agent that he had handled two kilograms of cocaine. The district court found this evidence sufficient to establish that he had handled two kilograms of cocaine and was a major participant. On appeal, the 8th Circuit upheld the sentence, stating that the two kilograms was part of a common scheme or plan for which the defendant was held accountable “even though he was not indicted or convicted for such offense.” U.S. v. Cohoon, 886 F.2d 1036 (8th Cir. 1989).

8th Circuit rules that plea agreement permitted sentencing based on amounts of drugs in counts which had been dropped. (270) Defendant argued that by taking into account the offenses contained in counts which were dropped, the district court in effect sentenced her for engaging in criminal activity without an adjudication of guilt. The Eighth Circuit rejected the argument, noting that in her plea agreement, the defendant agreed to a recalculation of the precise amount taken into consideration at the time of the sentence. U.S. v. Natal-Rivera, 879 F.2d 391 (8th Cir. 1989), overruling on other grounds recognized by U.S. v. Longoria, 298 F.3d 367 (5th Cir. 2002).

8th Circuit rules that court may consider drugs sold as well as drugs found on defendant in setting base offense level. (270) Defendant was convicted of distributing cocaine to an undercover agent. At the time of his arrest, 60 grams of cocaine were found in his possession. In sentencing the defendant the district court considered the 82 grams of cocaine which he had earlier distributed to an undercover informant, who then sold it to an undercover agent. The 8th Circuit held that the district court properly applied the guidelines. Section 1B1.3(a)(2) allows for consideration of all acts which are part of the same course of conduct. Because the defendant aided and abetted the earlier sale of cocaine to an undercover agent that sale could be considered as part of a common scheme. Multiple convictions are not required for § 1B1.3 to apply. Because the evidence connecting the defendant to the earlier sale was not clearly erroneous, the sentence was proper. U.S. v. Mann, 877 F.2d 688 (8th Cir. 1989).

9th Circuit requires drugs in dismissed counts to be treated as relevant conduct. (270) Defendant was charged with three counts of distributing cocaine base after he made three sales of crack to a cooperating witness. Pursuant to a plea bargain, defendant pleaded guilty to one of the three counts, and the government agreed to dismiss the other two. At sentencing, the district court declined to include the quantities that defendant sold in the dismissed counts as relevant conduct in calculating defendant’s offense level, even though the parties and the probation office believed that the conduct underlying the dismissed counts was relevant conduct under § 1B1.3. On the government’s appeal, the Ninth Circuit held that the crack sold in the dismissed counts constituted relevant conduct that the district court was required to consider in calculating defendant’s offense level. U.S. v. Grissom, 525 F.3d 691 (9th Cir. 2008).

9th Circuit says that resentencing on conspiracy count may rely on findings made for vacated CCE count. (270) A jury found defendant guilty of operating a continuing criminal enterprise (CCE) and of drug-trafficking conspiracy. As part of its verdict on the CCE count, the jury made findings concerning the quantity of drugs involved in the CCE offense. The district court vacated the conspiracy conviction because the conspiracy was a lesser-included offense of CCE. After an appeal, the CCE conviction was vacated because it rested on an improper predicate offense. The district court then reinstated the conspiracy conviction and relied on the jury’s findings for the CCE count to calculate defendant’s sentence on the conspiracy count. The Ninth Circuit held that the vacation of the improper predicate offense did not preclude the district court from relying on the jury’s findings on the CCE count in sentencing defendant on the conspiracy count. U.S. v. Cabaccang, 481 F.3d 1176 (9th Cir. 2007).

9th Circuit says Apprendi does not bar use of drug quantities from dismissed counts as relevant conduct. (270) Defendant was charged with smuggling two loads of marijuana into the U.S. The district court severed trial on the charges arising from the first load from the trial on the charges arising out of the second load, and the trial on the second incident went first. Defendant was convicted of the charges arising out of the second incident, and the government later dismissed the charges arising out of the first incident. At defendant’s sentencing for the conviction arising out of the second smuggling effort, the court refused to include the drugs smuggled in the first incident as relevant conduct to calculate defendant’s offense level. On the government’s appeal, the Ninth Circuit held that Apprendi did not bar the district court from using the marijuana from both loads to calculate defendant’s offense level because the resulting offense level would not be greater than the statutory maximum for the crime of conviction. U.S. v. Plancarte-Alvarez, 366 F.3d 1058 (9th Cir. 2004), amended, U.S. v. Plancarte-Alvarez, 449 F.3d 1059 (9th Cir. 2006).

9th Circuit finds marijuana underlying acquitted counts was properly included in offense calculation. (270) Police officers found more than seven pounds of marijuana in the house in which defendant lived with his codefendant. Defendant was acquitted of possessing this marijuana, but the jury convicted him on counts arising out of an earlier drug sale. At sentencing, the district court found that the marijuana in the house was relevant conduct and used it to calculate defendant’s offense level. The Ninth Circuit affirmed, finding that the government proved by a preponderance of the evidence that defendant possessed the marijuana in the house. U.S. v. Daychild, 357 F.3d 1082 (9th Cir. 2004).

9th Circuit includes in relevant conduct drugs removed from controlled delivery. (270) Police officers intercepted a package containing methamphetamine and replaced almost all of the drugs with a substitute. They then made a controlled delivery of the package to defendant. Defendant was convicted of possessing methamphetamine with intent to distribute. At sentencing, the district court based defendant’s sentencing level on the full amount of the drugs included in the package when the police intercepted it, not the amount in the package when defendant received it. The Ninth Circuit upheld this calculation, holding that defendant embarked on a single course of conduct of ordering and receiving the drugs. U.S. v. Johnson, 357 F.3d 980 (9th Cir. 2004).

9th Circuit finds murder on which defendant acquitted was a foreseeable result of drug conspiracy. (270) Defendant was charged with drug importation and murder based on an incident in which a co-defendant killed a Border Patrol officer. The jury acquitted defendant of the murder, but convicted him of the drug charges. At sentencing, the district court nevertheless applied § 2D1.1(d)(1), which provides for use of the base offense level for murder “if a victim was killed under circumstances that would constitute [first-degree] murder.” The Ninth Circuit upheld this enhancement, finding that despite defendant’s acquittal, the murder constituted relevant conduct under § 1B1.3(a)(1)(B) that was both reasonably foreseeable and in furtherance of the drug conspiracy on which defendant was convicted. U.S. v. Gamez, 301 F.3d 1138 (9th Cir. 2002).

9th Circuit requires court to “err on the side of caution” in estimating drug quantity. (270) The Ninth Circuit agreed with U.S. v. Shonubi, 103 F.3d 1085, 1088 (2d Cir. 1997) that the guidelines’ requirement to punish unconvicted relevant conduct at precisely the same degree of severity as convicted conduct is “extraordinary and totally unprecedented.” The panel said that this obliges courts to “proceed carefully” in determining whether the relevant conduct has been proven, and may require “clear and convincing evidence” when an enhancement based on uncharged conduct “has an extremely disproportionate effect on the length of a defendant’s sentence.” U.S. v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000), vacated, Valensia v. U.S., 532 U.S. 901 (2001). Because approximations of drug quantities are by their nature imprecise, “a sentencing judge must err on the side of caution.” U.S. v. August, 86 F.3d 151, 154 (9th Cir. 1996). Moreover, where, as in this case, a drug quantity is arrived at in a manner that is inherently imprecise, the district court must consider the “margin of error” before finally fixing the amount attributable to the defendant. Because the district court failed to follow these governing principles here, the sentence was reversed. U.S. v. Scheele, 231 F.3d 492 (9th Cir. 2000).

9th Circuit upholds sentencing for drugs in acquitted count. (270) Defendant was charged with bringing marijuana into the United States on two separate occasions in secret compartments of automobiles. The jury convicted him of one incident, but acquitted him of the other. Nevertheless, at sentencing, the district court found beyond a reasonable doubt that defendant knowingly imported marijuana on both occasions, and therefore included both amounts as relevant conduct under § 1B1.3. On appeal, the Ninth Circuit affirmed, noting that in U.S. v. Watts, 519 U.S. 148 (1997), the Supreme Court held that a sentencing court may consider facts underlying acquitted counts as relevant conduct as long as the conduct is proven by a preponderance of the evidence. The Ninth Circuit held that the district court’s factual finding – beyond a reasonable doubt – was not clearly erroneous. U.S. v. Castillo, 181 F.3d 1129 (9th Cir. 1999).

9th Circuit says acquittal on distribution charge did not bar sentence for conspiracy to distribute. (270) Defendant argued that her acquittal on substantive drug distribution charges prevented the trial court from sentencing her under § 1B1.2(d) based on the distribution objects of her conspiracy conviction. The Ninth Circuit rejected this argument based on the Supreme Court’s opinion in U.S. v. Watts, 117 S.Ct. 633, 637 (1997), which held that a “jury cannot be said to have ‘necessarily rejected’ any [related] facts when it returns a general verdict of not guilty.” Thus, it was possible that the jury chose to acquit defendant of the distribution charges because the government failed to prove one of the additional elements necessary to establish the distribution charge. If that were the case, then it would not have been illogical for the sentencing court to find defendant guilty of conspiring to distribute drugs even though the jury had acquitted her of the underlying substantive offenses. U.S. v. Jackson, 167 F.3d 1280 (9th Cir. 1999).

9th Circuit says deported alien who reenters U.S. may not challenge priors. (270) Defendant was charged with reentering the United States after deportation following conviction of an aggravated felony in violation of 8 U.S.C. § 1326(b). He acknowledged that under Custis v. U.S., 511 U.S. 485, 493-97 (1994), a defendant may not collaterally attack prior convictions unless his right to counsel was violated. But he argued that Custis was distinguishable because the prior convictions here formed an element of the crime. The Ninth Circuit rejected the argument, relying on U.S. v. Lomas, 30 F.3d 1191, 1193 (9th Cir. 1994) which held that the distinction between sentencing enhancements and elements of the crime was irrelevant in deciding whether the predicate crime qualifies as an aggravated felony. Thus, following Custis and Lomas, the Ninth Circuit held that collateral attacks in illegal reentry after deportation cases are allowed only where the prior conviction was obtained in violation of the right to counsel. U.S. v. Gutierrez-Cervantez, 132 F.3d 460 (9th Cir. 1997).

9th Circuit counts all drugs in conspiracy despite reversal on aiding and abetting. (270) In the first appeal in this case, the Ninth Circuit reversed defendant’s substantive drug convictions explaining that “as an aider and abettor [defendant] cannot be held liable under a Pinkerton theory for the subsequent acts of his co-conspirators.” On remand, the district court refused to consider drug quantities linked to defendant’s involvement in the conspiracy for sentencing. In this second appeal, the Ninth Circuit again reversed, holding that the district court was required to consider the quantity of drugs in the conspiracy in calculating the sentence even though the convictions on the substantive drug offenses had been reversed. The court noted that in U.S. v. Watts, 117 S.Ct. 633, 636 (1997), the Supreme Court had held that “a sentencing court may consider conduct of which a defendant has been acquitted.” Under the relevant conduct section of the guidelines, 1B1.3, the court must consider “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S. v. Newland, 116 F.3d 400 (9th Cir. 1997).

9th Circuit reaffirms that acquitted conduct may be used in sentencing. (270) In U.S. v. Watts, 117 S.Ct. 633 (1997), the Supreme Court held that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, as long as that conduct has been proved by a preponderance of the evidence. The present case was a companion case to Watts, and on remand from the Supreme Court, the panel held that the district court did not clearly err in finding by a preponderance that the defendant was involved in the conduct underlying the count on which she was acquitted. Accordingly the district court properly considered that conduct in determining her offense level. Chief Judge Hug concurred specially to urge the Sentencing Commission to consider this issue of acquitted conduct. U.S. v. Putra, 110 F.3d 705 (9th Cir. 1997).

9th Circuit holds Koon allows judge to reject acquittal or guilty verdict at sentencing. (270) In U.S. v. Brady, 928 F.2d 844, 850-52 (9th Cir. 1991), the Ninth Circuit held that, at sentencing, a judge may not reconsider facts that were necessarily rejected by a jury’s acquittal on some counts. However, in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), the Supreme Court held that “for the courts to conclude a factor must not be considered under any circumstances would be to transgress the policymaking authority vested in the Commission.” Accordingly, the Ninth Circuit held that “the approach we took in Brady is overruled by the Supreme Court’s decision in Koon.” The panel adopted Judge Wallace’s dissent in U.S. v. Putra, 78 F.3d 1386, 1390-94 (9th Cir. 1996), bringing the Ninth Circuit into line with every other circuit in upholding the use of acquitted conduct at sentencing. In an interesting twist however, the court applied its new holding to permit a judge to reject a jury’s guilty verdict at sentencing. Thus, the court upheld a defendant’s eligibility for the “safety valve” under § 5C1.2, despite his claim of ignorance of the drugs he was carrying. U.S. v. Sherpa, 97 F.3d 1239 (9th Cir. 1996).

9th Circuit includes amounts of drugs in uncharged and dismissed counts. (270) In sentencing defendant, the district judge took into account amount of cocaine seized on two prior occasions for which no charges were brought under the Arizona indictment. The Ninth Circuit held that this was proper under the guidelines because the guidelines authorize a district court to consider uncharged criminal behavior that constitutes “relevant conduct.” U.S. v. Fine, 975 F.2d 596, 600 (9th Cir. 1992). Moreover, the Fine case has specifically approved the use of previously dismissed charges in calculating a base offense level. U.S. v. Duque, 62 F.3d 1146 (9th Cir. 1995).

9th Circuit sentences for all drugs in conspiracy despite acquittal on substantive counts. (270) Defendant was convicted of conspiracy but acquitted on substantive counts of possession with intent to distribute. He argued that the district court erred in finding that the 830 grams of cocaine found in the hotel room was within the scope of the conspiracy. The Ninth Circuit rejected the argument, relying on U.S. v. Diaz-Rosas, 13 F.3d 1305 (9th Cir.), cert. denied, 114 S.Ct 1848 (1994), which held that a sentence on a conspiracy charge may be based upon a quantity of narcotics for which the defendant was acquitted of possessing if the drugs were foreseeably within the scope of the conspiracy. In a footnote, the court distinguished U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991), which held that a sentence may not be based on facts rejected by a jury’s acquittal. Unlike Brady, defendant’s sentence on the conspiracy count “was based on his participation in the conspiracy, not facts rejected by the jury.” U.S. v. Vgeri, 51 F.3d 876 (9th Cir. 1995).

9th Circuit includes drug quantity in conspiracy despite acquittal of personal possession. (270) The jury convicted defendant of conspiracy and one count of possession but acquitted him of a second possession charge. Nevertheless, the 9th Circuit upheld sentencing him for the amount of cocaine in the second count. The court distinguished U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991) noting that there was no inconsistency between the jury’s verdict and the district court’s finding that defendant was accountable for the cocaine seized in the second count. The district court made a specific finding that the three kilos seized in the second count were foreseeable to the defendant as part of the continuing conspiracy. Therefore, they were properly included as “relevant conduct” under guideline section 1B1.3. The court rejected defendant’s argument that the district court should have imposed a higher standard of proof, noting that the court’s finding was fully consistent with the jury’s verdict, despite the acquittal. U.S. v. Diaz-Rosas, 13 F.3d 1305 (9th Cir. 1994).

9th Circuit says sentence was based on amount of drugs in conspiracy rather than uncharged substantive crimes. (270) Defendant argued that the Commission exceeded its statutory authority in drafting 1B1.3(a)(2) by requiring sentencing based on uncharged crimes, citing U.S. v. Galloway, 943 F.2d 897 (8th Cir. 1991), reversed en banc 976 F.2d 414 (1992); U.S. v. Miller, 910 F.2d 1321, 1329-30 (6th Cir. 1990) (Merritt, J. Dissenting). e 9th Circuit did not reach this issue because the defendants would obtain no relief even if the court were to adopt the holding of the original panel in Galloway. The defendants here were convicted of conspiracy to import and distribute marijuana and their sentences were based on an estimate of the total quantity of drugs imported pursuant to that conspiracy rather than on the basis of any uncharged, substantive crimes. See Pinkerton v. U.S., 328 U.S. 640 (1946). U.S. v. Conkins, 9 F.3d 1377 (9th Cir. 1993).

9th Circuit finds court properly considered steroids in dismissed counts. (270) Defendant was convicted of introducing steroids in interstate commerce without a prescription. He argued the court should not have relied on conduct contained in dismissed counts in departing from the range established by U.S.S.G. 2N2.1. The 9th Circuit agreed that since the 2N2.1 offense level is not determined by the aggregate amount of harm (i.e., it is “non-groupable”), it was improper to consider the conduct in the dismissed counts in departing upward. However, the district court alternatively premised its decision on section 2F1.1 and did not err by considering the quantities of steroids involved in the dismissed counts as “relevant conduct.” In U.S. v. Fine, 975 F.2d 596 (9th Cir. 1992) (en banc) the court held that dismissed counts may be considered as relevant conduct in establishing a defendant’s offense level under section 2F1.1. Because the district court properly applied section 2F1.1, the 9th Circuit did not consider whether it should have applied the 1991 amended version of section 2D1.1 to calculate the sentence. U.S. v. Von Mitchell, 984 F.2d 338 (9th Cir. 1993).

9th Circuit, en banc, rehears Fine case, and holds that fraud losses underlying dismissed counts are relevant conduct. (270) The panel opinion in this case, U.S. v. Fine, 946 F.2d 650 (9th Cir. 1991) held that mail fraud losses underlying counts dismissed in a plea agreement could not be considered as “relevant conduct” under Section 1B1.3 of the Sentencing Guidelines. The Ninth Circuit granted rehearing en banc, and unanimously reversed the panel. The en banc court followed the earlier decision in U.S. v. Turner, 898 F.2d 705, 711 (9th Cir. 1990), which held that quantities of drugs in dismissed were properly aggregated with the counts of conviction as relevant conduct. The court distinguished U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990) and U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991), on the ground that the dismissed (or uncharged) conduct there was used to depart. The en banc court left the remainder of the panel opinion intact. U.S. v. Fine, 975 F.2d 596 (9th Cir. 1992) (en banc).

9th Circuit reaffirms that uncharged conduct may not form the basis for a departure in plea cases. (270) In its original opinion in this case, the 9th Circuit held that it was bound by U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990) to hold that, where there is a plea agreement, the district court may not rely on uncharged bank robberies to depart upward from the sentencing guidelines. On December 24, 1991, the panel amended its opinion to add a footnote distinguishing U.S. v. Loveday, 922 F.2d 1411, 1417 (9th Cir. 1991), but leaving its original opinion intact. The court noted that the full court had been advised of the government’s suggestion for rehearing en banc and no judge of the court has requested a vote on it.” The petition for rehearing was denied. U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991).

9th Circuit holds that plea bargain prevents judge from considering dismissed or uncharged counts in sentencing. (270) Relying on its amended opinion in U.S. v. Castro-Cervantez, 927 F.2d 1079 (9th Cir. 1991), the 9th Circuit reiterated that under guideline § 6B1.2, “a district judge may not first accept a plea bargain and then consider dismissed charges in calculating defendant’s sentence.” The court also rejected the government’s argument that the sentence could be based on uncharged bank robberies. Although guideline § 1B1.4 permits a court to consider “any information” unless otherwise prohibited by law, the limitations imposed on departures by guidelines § 5K2.0 “also bar an upward departure on account of the eight [robberies] either not charged or dismissed as a result of the plea bargain.” U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991).

9th Circuit applies “relevant conduct” ruling retroactively. (270) Defendant argued that in pleading guilty, he relied on U.S. v. Restrepo, 883 F.2d 781 (9th Cir. 1989), which prohibited aggregation of amounts of cocaine from charges that were dropped. After he pled guilty, but before he was sentenced, Restrepo was withdrawn and a new opinion was filed, 896 F.2d 1228 (9th Cir. 1990) which allowed him to be sentenced for the 2 kilograms in the dropped count. Analyzing his claim under the due process clause, the 9th Circuit distinguished U.S. v. Albertini, 830 F.2d 985 (9th Cir. 1987), on the ground that the defendant here was not convicted of any additional crime, he only had his sentence enhanced because of the withdrawing of an opinion. The court found that defendant had no legitimate expectation of finality in the Restrepo opinion because the government’s petition for rehearing had not yet been denied and therefore the opinion “was not fixed as settled 9th Circuit law.” Judge Reinhardt concurred in the judgment because defendant was given the opportunity to withdraw his plea, and refused to do so. U.S. v. Ruiz, 935 F.2d 1033 (9th Cir. 1991).

9th Circuit considers actual amount of methamphetamine rather than charged amount. (270) The commentary to § 1B1.3 states that “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct .ÿ.ÿ. as the count of conviction.” Thus the 9th Circuit held that the court did not err by considering the actual amount of methamphetamine rather than simply the charged amount. U.S. v. Nakagawa, 924 F.2d 800 (9th Cir. 1991).

9th Circuit reaffirms that uncharged conduct may be considered in calculating the offense level. (270) Relying on U.S. v. Restrepo, 883 F.2d 781 (9th Cir. 1989) (Restrepo I), the district court refused to consider conduct not charged in determining the defendant’s sentence. While the appeal was pending, Restrepo I was withdrawn and reissued as U.S. v. Restrepo, 903 F.2d 648 (9th Cir. 1990), reh. granted en banc, 912 F.2d 1568 (Restrepo II). The new incarnation of Restrepo made it clear that conduct other than that of which the defendant was convicted may be considered in calculating the offense level of a distribution charge if it is part of the same course of conduct as the crime of conviction. Uncharged conduct must be proved by evidence of a sufficient weight “to convince a reasonable person of the probable existence of the enhancing factor.” Based on Restrepo II, the 9th Circuit rejected the defendant’s argument that a more stringent clear and convincing standard of proof should apply to uncharged conduct. U.S. v. Piper, 918 F.2d 839 (9th Cir. 1990).

9th Circuit includes drugs in dismissed count in calculating sentence. (270) The guideline sentence for drug offenses varies depending on the amount of drug involved. Defendant argued that the sentencing judge erred by including drugs involved in a dismissed count in calculating defendant’s sentence. Following circuit precedent, Judges Fernandez, Tang, and Norris concluded that inclusion of the drugs was proper because they were “part of the same course of conduct or part of a common scheme or plan as the count of conviction.” Moreover, the court noted that the challenged quantity did not change defendant’s offense level, and no evidence suggested that the sentencing judge relied on the challenged quantity in determining what sentence within the guidelines to give defendant. U.S. v. Avila, 905 F.2d 295 (9th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994).

9th Circuit grants rehearing en banc in “relevant conduct” drug case. (270) The original panel opinion in this case held that amounts of drugs outside the count of conviction could not be considered in setting the offense level under the guidelines. That opinion was later withdrawn and a new opinion was filed upholding reliance on such amounts under the “relevant conduct” section of the guidelines, 1B1.3. Judge Pregerson dissented. On September 6, 1990, the 9th Circuit ordered the case to be reheard en banc. U.S. v. Restrepo, 903 F.2d 648 (9th Cir. 1990), rehearing en banc granted, 912 F.2d 1568 (9th Cir. 1990).

9th Circuit joins other circuits in ruling that “relevant conduct” may include conduct outside the offense of conviction. (270) On March 2, 1990 the 9th Circuit withdrew its opinion in U.S. v. Restrepo, 883 F.2d 781 (9th Circuit 1989), withdrawn, March 2, 1990), which had held that the relevant conduct section of the guidelines, § 1B1.3, was limited to the count of conviction. In this case, the 9th Circuit rejected the arguments on which Restrepo was based, and brought the 9th Circuit into agreement with the other circuits. Specifically, the court upheld the district court’s reliance on U.S.S.G. § 1B1.3 to aggregate amounts of drugs outside the count of conviction in computing the defendant’s base offense level. U.S. v. Turner, 898 F.2d 705 (9th Cir. 1990).

10th Circuit reverses for failure to make particularized findings of relevant conduct. (270) Defendant was convicted of conspiring to possess methamphetamine with intent to distribute. However, he was involved in only three of the conspiracy’s eight drug transactions. The district court attributed to him as relevant conduct all of the meth distributed through the conspiracy, more than doubling his guideline range, but did not make particularized findings. The Tenth Circuit reversed, holding that the amount of drugs attributed to defendant should not be based on the overall amount in the conspiracy, nor transactions in which he personally participated. Rather, the court must make particularized findings about the scope of the specific agreement defendant joined in relation to the conspiracy as a whole. Even though the district court accepted defendant’s undisputed PSR as its findings of fact, it erred by failing to supplement those findings with particularized findings on defendant’s relevant conduct. U.S. v. Figueroa-Labrada, 720 F.3d 1258 (10th Cir. 2013).

10th Circuit finds sufficient evidence that uncharged drug sale took place. (270) Police searching defendant’s home found baggies with 34.1 grams of methamphetamine, a cutting agent, cash, and false ID. A week before the arrest, police arranged a controlled buy with a confidential informant at defendant’s home that yielded another 28 grams of meth. Defendant admitted possession of the drug but not intent to distribute it. Defendant argued that the court committed procedural error in attributing to him the 28 grams bought by the informant. Although no officer actually saw defendant hand over contraband for money, the Tenth Circuit found sufficient evidence to find that a drug sale took place. The court heard that the police swept the informant’s car and person, gave the informant cash, drove him or her to defendant’s house, saw the two enter, and watched the informant emerge with drugs. Defendant argued that the court had to “speculate” to infer a sale here, but the panel concluded that this evidence, in conjunction with the car traffic, the drugs in the home, and everyhing else mentioned, met the preponderance standard. U.S. v. Cruz, 680 F.3d 1261 (10th Cir. 2012).

10th Circuit says 13-year-old transactions were not part of same course of conduct as instant offense. (270) Defendant was convicted of a marijuana conspiracy that ran from December 2003 through March 2006. The district court included in its drug quantity calculation a January 1990 incident in which two co-conspirators were arrested for attempting to purchase 1200 pounds of marijuana from an undercover DEA agent. The Tenth Circuit held that the 1990 drug transactions were not part of the same course of conduct as the current drug conspiracy. The 13-year interval far exceeded the gap between relevant conduct and the charged offense in the case law of any circuit including this circuit. Further, that extreme lack of temporal proximity was not mitigated by strong evidence of regularity or similarity. The government did not present evidence of regularity for eight of the 13 years between the 1990 transaction and the crime of conviction. As for similarity, the transactions involved vastly different quantities of marijuana, involved different sources, and there was no evidence of defendant’s role in the 1990 transaction. U.S. v. Damato, 672 F. 3d 832 (10th Cir. 2012).

10th Circuit finds 13-year-old transaction was part of common scheme or plan. (270) Defendant was convicted of a marijuana conspiracy that ran from December 2003 through March 2006. The district court included in its drug quantity calculation a January 1990 incident in which two co-conspirators were arrested for attempting to purchase 1200 pounds of marijuana from an undercover DEA agent. After ruling that the transaction was not part of the same course of conduct, the Tenth Circuit ruled this was one of the rare instances in which acts that were not part of the same course of conduct as the offense of conviction nonetheless qualified as part of a common scheme or plan. The 1990 transaction and the offense of conviction were similar in many respects. Both involved the sale of large amounts of marijuana, and both involved defendant obtaining (or attempting to obtain) marijuana from a source located in Southern California. More importantly, defendant conspired with the same individuals (McPherson and Livingston) in both instances. Although the court was troubled by evidentiary gaps in the record regarding defendant’s role in the 1990 transaction and the modus operandi underlying it, it nonetheless concluded that the 1990 offense was part of a common scheme or plan with the offense of conviction. U.S. v. Damato, 672 F. 3d 832 (10th Cir. 2012).

10th Circuit holds that 2006 production of crack was relevant to 2002-2005 drug offenses. (270) Defendant pled guilty to distributing cocaine to an undercover officer on two occasions in April 2002, and again in May 2005. The district court found that defendant had also produced three ounces of crack cocaine in 2006. The Tenth Circuit upheld the district court’s conclusion that defendant’s production of three ounces of crack qualified as relevant conduct. Defendant’s production of three ounces of crack was sufficiently related to the offense of conviction to qualify as relevant conduct. Although his production of crack in 2006 was fairly remote from his conduct of conviction, where, as here, the offenses of conviction took place over a long period of time, the court will extend the time frame for what qualifies as relevant conduct. Defendant’s three offenses of conviction, combined with his three instances of producing an ounce of crack, was sufficient to establish some level of regularity. Finally, the conduct of conviction was substantially similar to the relevant conduct. Both involved crack cocaine, and defendant’s wife was present during the final offense of conviction as well as the relevant conduct. U.S. v. Caldwell, 585 F.3d 1347 (10th Cir. 2009).

10th Circuit includes defendant’s personal drug trafficking in relevant conduct. (270) Defendant’s half-brother was the leader of a Los Angeles drug distribution network that supplied marijuana to Cleveland, Ohio. In December 2002, the day after the half-brother was arrested for drug trafficking, defendant chartered a flight from California to Cleveland, acquired a suitcase filled with money, and then flew back to California. Defendant was convicted of conspiracy to distribute marijuana, and sentenced to 360 months. The district court included in its drug quantity calculation 5,184 kilograms of marijuana distributed by defendant prior to December 2002. The court found that while defendant had split off from his brother’s organization, “they had realigned” in December 2002 when the brother was arrested and defendant “came to his aid.” The Tenth Circuit held that defendant’s personal drug trafficking conduct was relevant conduct that could be used to set his offense level. Defendant’s allegedly independent actions involved the same type of activity as charged in the conspiracy, marijuana distribution. The regularity of the marijuana distribution was clearly established. Defendant’s actions occurred within sufficient temporal proximity to his participation in his brother’s conspiracy. U.S. v. Hamilton, 587 F.3d 1199 (10th Cir. 2009).

10th Circuit reverses where court limited drug quantity to amount possessed at time of arrest. (270) Twice, police apprehended defendant and found small vials that contained, in total, 37 grams of methamphetamine. Defendant admitted buying for redistribution at least two ounces of meth every month for the last year (680.4 grams in total). Nonetheless, the district court held defendant accountable for only 37 grams of meth at sentencing. The Tenth Circuit reversed, holding that, in addition to defendant’s admission, there were numerous other facts suggesting his possession of drugs in quantities much higher than 37 grams, including information from witnesses and informants who had seen defendant in a meth lab on multiple occasions and had witnessed him possessing meth. In the face of the government’s substantial factual showing, defendant made no effort to point to any countervailing facts supporting the district court’s finding that he possessed only 37 grams. U.S. v. Todd, 515 F.3d 1128 (10th Cir. 2008).

10th Circuit says Apprendi does not bar use of relevant drugs if sentence falls within statutory maximum. (270) Agreeing with every other circuit interpreting Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Tenth Circuit ruled that, under § 841(b)(1), the quantity of drugs is a fact that may “increase[] the penalty for a crime beyond the prescribed statutory maximum” and therefore “must be submitted to a jury” and proved beyond a reasonable doubt. The failure to require specific jury findings regarding the quantity of cocaine involved in defendant’s offense constituted a “plain or obvious error.” However, defendant was not prejudiced by this error. At trial, the government chemist described a total of 44.6 grams of crack, enough to trigger the five to 40 year term in § 841(b)(1)(B) for offenses involving more than five grams of crack. Defendant’s 360-month sentence fell within that statutory maximum. Defendant admitted that he possessed this crack. Defendant’s sentence was properly based upon consideration of drugs quantities beyond the offense of conviction. “As long as the defendant’s sentence falls within the maximum established by statute, Apprendi does not foreclose consideration of drug quantities beyond the offense of conviction.” U.S. v. Hishaw, 235 F.3d 565 (10th Cir. 2000).

10th Circuit holds that trace amounts of meth constituted “detectable amount” for sentencing. (270) At trial, a government witness testified that the substances underlying Counts 6 and 7 contained “trace” amounts of methamphetamine but that he had not quantified them. The court granted defendant’s motion for acquittal on these counts on the grounds that the prosecution had not proven a “measurable amount” of methamphetamine. At sentencing, the same witness testified again, this time asserting the mixtures were quantifiable, and involved .28% and .19% of actual methamphetamine. The district court included the drugs underlying Counts 6 and 7 as part of defendant’s relevant conduct at sentencing. The Tenth Circuit affirmed the use at sentencing of drug quantities involved in acquitted conduct. The acquittal established only that, as a matter of law, that the government failed to prove a “measurable amount” of meth beyond a reasonable doubt. The court was free to consider at sentencing drug quantities proven under the lower preponderance of the evidence standard. The relevant sentencing provisions, 21 U.S.C. § 841(b) and USSG § 2D1.1, by their plain language, clearly require the government to prove a “detectable amount” of methamphetamine. Even though the amounts of pure methamphetamine were small enough to be labeled “traces,” that was sufficient to constitute a “detectable amount” under § 841(b) and the guidelines. U.S. v. Valdez, 225 F.3d 1137 (10th Cir. 2000).

10th Circuit agrees that drugs transported in August were relevant conduct to November drug transaction. (270) In August 1995, defendant was stopped carrying 138.8 grams of methamphetamine from California to Kansas. He was arrested in November 1995 for attempting to purchase 80.64 grams of methamphetamine from an undercover agent. He pled guilty to the charges relating to the November incident. Although the charges from the August stop were dismissed, the district court included the 138.8 grams in his sentencing calculation as relevant conduct. The Tenth Circuit agreed that the two incidents were part of the same course of conduct and thus the August drugs were properly considered relevant conduct. Factors to examine in making this analysis include similarity, regularity, temporal proximity, the nature of the defendant’s acts and his role. The two offenses here were similar. They both involved large quantities of the same substance. Defendant transported the methamphetamine in August to the same area of Kansas involved in the November transaction. Because there were two instances of conduct, some regularity of conduct existed. Finally, the two offenses were temporally related because they occurred less than 3 months apart. The court reasonably inferred that each offense was an episode in an ongoing drug distribution business. U.S. v. Svacina, 137 F.3d 1179 (10th Cir. 1998).

10th Circuit finds uncharged post-conspiracy drug deal was relevant conduct. (270) From October 1991 to March 1992, undercover agents made five purchases totaling 65 grams of crack from a group of drug conspirators. The investigation then entered a six-month hiatus. In September 1992, agents arranged to purchase nine ounces of crack, but when they went to pick up their purchase, defendant’s accomplice told them defendant could only supply crack one ounce at a time. A waiting surveillance team mistakenly believed the transaction was complete and arrested the accomplice. No drugs were found. Defendant pled guilty to a conspiracy running from October 1991 to March 1992. The Tenth Circuit agreed that the uncharged post-conspiracy drug deal was relevant conduct to the charged conspiracy. There was substantial similarity between the nine-ounce crack deal in September 1992 and the smaller deals in the earlier conspiracy. The same undercover agents negotiated for the same illegal substance, with the same players, relying on the trust developed in the earlier deals. The fact that the amount was larger than previous transactions did not outweigh the other similarities. The six-month break was not sufficient to interrupt the course of conduct. The suggestion in U.S. v. Reyes, 979 F.2d 1406, 1408 n.4 (10th Cir. 1992), that drugs under negotiation may not be considered relevant conduct unless the defendant actually possessed or distributed the drugs, is pure dictum. U.S. v. Moore, 130 F.3d 1414 (10th Cir. 1997).

10th Circuit includes drugs that cooperating witness saw defendant make. (270) Defendant was convicted of two counts of selling cocaine. The district court included in its drug quantity calculation nine ounces of cocaine base that cooperating witnesses reported seeing and to which defendant referred during an audio-taped exchange. On appeal, the Tenth Circuit affirmed. The district court heard the cooperating witness’s testimony that he saw defendant make the nine ounces of cocaine base. In addition, the court reviewed the transcript of the tape recording in which defendant said he was cooking “another nine” of crack. Defendant did not rebut this proof. He merely called into question the witness’s reliability. U.S. v. McCloud, 127 F.3d 1284 (10th Cir. 1997).

10th Circuit finds uncharged meth was relevant conduct to maintaining place for making meth. (270) Defendant pled guilty to maintaining a place for the manufacture of methamphetamine. The Tenth Circuit upheld the district court’s determination that 100 grams of methamphetamine found in the search of a co‑conspirator’s residence was relevant conduct for sentencing purposes. The district court found that defendant was involved in the methamphetamine manufacturing process at the co‑conspirator’s residence. Although the finding did not specifically state how defendant was “involved” in the dismissed count, the finding was sufficient. The offenses in question were required to be grouped under § 3D1.2(d). Finally, the offenses were part of the same course of conduct. Defendant admitted that he maintained a place for the purpose of manufacturing methamphetamine. The dismissed count established the same course of conduct. U.S. v. Taylor, 97 F.3d 1360 (10th Cir. 1996).

10th Circuit agrees that drugs seized in traffic stop were part of the instant offense. (270) Defendant was involved in a scheme to transport 251 grams of crack cocaine from Los Angeles to Denver. At sentencing, the district court also held defendant responsible for (a) four kilograms of cocaine that another conspirator testified he distributed for defendant, and (b) one pound of cocaine base seized in Utah from the glove compartment of a vehicle defendant rented and in which he was a front seat passenger. The Tenth Circuit affirmed. Although two other witnesses testified that defendant was not the source of the four kilograms, the appellate court deferred to the district court’s decision to credit the testimony of the other conspirator. The Utah offense was part of the same course of conduct as the offense of conviction. Although it occurred four months after the instant offense, defendant apparently was on his way to Denver with the cocaine base-thus driving to the same city with the same type of drug that formed the basis of the instant offense. U.S. v. McKneely, 69 F.3d 1067 (10th Cir. 1995).

10th Circuit upholds estimate based on co-conspirator’s testimony. (270) Undercover agents agreed to sell powder cocaine to a crack dealer. The dealer brought defendant with him to cook the powder into crack. A co-conspirator testified that he had witnessed defendant cook an ounce of powder cocaine into crack on two occasions at the dealer’s residence. Defendant argued that the co-conspirator’s testimony was not reliable because he did not provide the exact dates he observed her cook the crack and was motivated by a favorable plea agreement. The Tenth Circuit upheld the finding that the co-conspirator’s testimony was reliable. The district court observed the co-conspirator’s testimony and demeanor during direct and cross-examination, and specifically found that he was a credible witness. U.S. v. Hooks, 65 F.3d 850 (10th Cir. 1995).

10th Circuit bases relevant conduct determination on testimony of three witnesses. (270) Defendant was found in a motel room together with controlled substances and paraphernalia used to manufacture methamphetamine. He argued that the court improperly included in its sentencing calculation drug quantities outside the one-day time frame of the conspiracy. The 10th Circuit affirmed. There was sufficient evidence to show that the manufacture, possession of an inventory, and sales of methamphetamine were part of defendant’s continuing conduct. The district court could properly consider estimates of drug quantity made by three witnesses who testified at the sentencing hearing. U.S. v. Deninno, 29 F.3d 572 (10th Cir. 1994).

10th Circuit finds heroin sales 17 months earlier were relevant conduct. (270) Defendant was convicted of selling heroin to an undercover police officer on six occasions between September 1992 and February 1993. At sentencing, a government witness testified that she regularly purchased heroin from defendant from January to April, 1991. The 10th Circuit held that the heroin sales to the witness were part of the same course of conduct as the offense of conviction. They were regular sales of the same drug, occurring 17 months before the offense of conviction. The witness’s failure to recall details of the individual transactions was not fatal. U.S. v. Richards, 27 F.3d 465 (10th Cir. 1994).

10th Circuit approves conversion of cash into drugs. (270) The 10th Circuit held that where cash is seized and the amount of drugs seized does not reflect the scale of the offense, the sentencing court may estimate the quantity of drugs by converting cash to its drug equivalent, provided the court finds by a preponderance that the cash is attributable to drug sales which were part of the same course of conduct as the conviction count. Here, the district court could conclude that $14,920 found in one paper bag was the result of defendant’s drug trafficking activities. Defendant asked his girlfriend to pick up the bag from the house where he conducted his drug sales. There was also support for converting $31,600 from an envelope found in the girlfriend’s apartment. The girlfriend testified that the money was not hers, and that no one other than herself, her children and defendant had access to the apartment. She was with defendant when he purchased the envelope. Defendant had no apparent source for the money other than drug trafficking. U.S. v. Rios, 22 F.3d 1024 (10th Cir. 1994).

10th Circuit finds no government manipulation of sentencing process. (270) Defendant argued that one and one-half kilograms of cocaine offered by undercover agents as sellers in a “reverse sting” should not have been included in his base offense level. He said the amount was substantially larger than he had previously sold to various informants, and the agents allowed him to take one-half kilogram on consignment since he only had $31,000. The 10th Circuit found no error, ruling that the court was required to include the full amount even though the government intended to actually deliver only the half-kilogram. Defendant, negotiated to purchase the full amount and arranged for the credit. Therefore, there was no support for his “sentencing entrapment” claim. U.S. v. Bara, 13 F.3d 1418 (10th Cir. 1994).

10th Circuit affirms drug amounts from informant that were corroborated by tapes of defendant. (270) The 10th Circuit agreed that additional drug quantities involved in relevant conduct were proved by a preponderance of the evidence. The figures from the PSR and accepted by the district court were conservative estimates, based on defendant’s own admissions at trial and in his presentence interview, and information gleaned by the FBI from the informant. Defendant only challenged the drug amounts by questioning the informant’s credibility. However, the informant’s statements to the FBI concerning defendant’s sales volume were partially corroborated by defendant’s own statements preserved on audiotape during controlled buys. U.S. v. Washington, 11 F.3d 1510 (10th Cir. 1993).

10th Circuit holds that section 1B1.2 does not prohibit consideration of relevant conduct. (270) Section 1B1.2 provides that where a plea agreement contains a stipulation that specifically establishes a more serious offense than the offense of conviction, the offense level is based on the guideline for the stipulated offense. Defendant argued that since he did not stipulate to a more serious offense, the judge could not use relevant conduct to sentence him for a more serious offense. The 10th Circuit held that section 1B1.2 did not prohibit consideration of relevant conduct. The relevant conduct guideline, § 1B1.3(a)(2), directs that the entire picture of the defendant’s conduct be considered when determining the base offense. The fact that the plea agreement called for the dismissal of the more serious counts did not render the relevant conduct guideline inoperative. U.S. v. McGee, 7 F.3d 1496 (10th Cir. 1993).

10th Circuit upholds consideration of drugs involved in acquitted counts. (270) The 10th Circuit affirmed that it was proper for the district court to consider 42 pounds of marijuana involved in an offense for which defendant had been acquitted. The consideration of the conduct alleged in the acquitted count did not constitute double jeopardy. There was no separate punishment for the acquitted crime, only an enhancement of the sentence of the convicted crime. U.S. v. Garcia, 987 F.2d 1459 (10th Cir. 1993).

10th Circuit includes cocaine defendant gave to a friend for personal use. (270) Defendant was convicted of conspiring to distribute marijuana. In calculating defendant’s offense level, the district court included 365 ounces of cocaine that defendant gave to a friend over the course of a year for the friend’s personal use. Defendant admitted that his friend had a drug habit of about an ounce of cocaine a day, and that for about a year, defendant supplied the friend with cocaine. The 10th Circuit rejected defendant’s suggestion that his delivery of cocaine to his friend was not part of his overall drug activity. U.S. v. Guest, 978 F.2d 577 (10th Cir. 1992).

10th Circuit upholds consideration of drugs found in unrelated traffic stop. (270) Defendant was convicted of being a source of LSD for two drug distributors in Wyoming. He was also convicted of simple possession based on drugs which police found in his van after an unrelated traffic stop in Wyoming. The 10th Circuit affirmed that the district court could properly add the drug quantities found during the traffic stop to the total weight of drugs involved in the drug distribution charges. The commentary to section 1B1.3(2) provides that a defendant need not be convicted of multiple counts for the additional drug quantities to be added to the total weight of drugs used to determine the sentence. If the failure to obtain a conviction permits aggregation, then conviction of a lesser-included offense should also permit such an aggregation. The sole limiting factor to such aggregating of amounts is that the district court must find, as it did here, that the drug quantities were part of a same course of conduct or common scheme or plan. U.S. v. Barela, 973 F.2d 852 (10th Cir. 1992).

10th Circuit affirms consideration of cocaine deliveries made to defendant in the 10 months prior to his arrest. (270) Defendant was arrested after attempting to purchase eight ounces of cocaine from his long-time drug supplier. The 10th Circuit affirmed the district court’s consideration of 8.9 kilograms of cocaine which defendant received from his supplier during the 10 month period prior to his arrest. The test is whether the 8.9 kilograms were part of the same course of conduct or part of a common scheme or plan. Defendant made numerous cocaine purchases from the supplier’s son from 1981 until the son’s death in 1989. Shortly before the son’s death, defendant began buying cocaine from the father, and continued to do so until his arrest in May 1990. The total amount involved in this 10 month period was established through records maintained by the father’s wife. There was a long-term relationship between defendant and the supplier’s family. U.S. v. Laster, 958 F.2d 315 (10th Cir. 1992).

10th Circuit affirms additional delivery of ephedrine as relevant conduct. (270) Defendant was convicted of possessing Ephedrine with intent to produce methamphetamine. The 10th Circuit affirmed the inclusion as relevant conduct of five pounds of Ephedrine that were delivered to defendant several months prior to his arrest. Contrary to defendant’s assertion, the government did prove that such a delivery took place. Two friends of defendant testified that defendant, using an alias, called a chemical company in Florida and placed an order for five pounds of Ephedrine to be shipped to defendant’s house. A chemical company partner testified that five pounds of the chemical was shipped via UPS to defendant’s address, and UPS records confirmed delivery. Defendant’s girlfriend testified that when delivery was made, she signed for the shipment and paid the UPS driver with $1,000 in cash that defendant gave to her. U.S. v. Hershberger, 956 F.2d 954 (10th Cir. 1992).

10th Circuit reverses inclusion of uncharged drugs where information was not reliable. (270) The district court held defendant responsible for 3.8 grams of heroin outside the offense of conviction. Although the presentence report detailed defendant’s involvement in several other drug transactions, they did not amount to 3.8 grams. The 10th Circuit remanded for resentencing, since the source of information for the 3.8 grams did not appear in the record. Although hearsay information may be used, some indicia of reliability is required. The court rejected the government’s claim that because defendant did not specifically challenge the reliability of the information, the issue was not preserved for appeal. Defendant did object to the use of the 3.8 grams, and even if defendant did not specifically challenge the reliability of the information, the court should have made an independent determination on the reliability of the evidence. U.S. v. Padilla, 947 F.2d 893 (10th Cir. 1991).

10th Circuit rules stipulation did not bar consideration of additional drugs. (270) Defendant was originally charged with possession 1.5 liters of P2P with intent to manufacture methamphetamine. In order to avoid the mandatory minimum sentence, the parties stipulated that the amount of P2P possessed by defendant was “not readily provable.” The 10th Circuit ruled that the district court erred in finding that the stipulation barred it from considering additional drugs found in defendant’s home. Under guideline § 6B1.4(d), a court is not bound by a stipulation of facts. Section 1B1.3(a)(2) requires aggregation of quantities from drug offenses that were “part of the same course of conduct or common scheme or plan as the offense of conviction,” regardless of whether defendant was convicted of underlying offenses pertaining to the additional amounts. Moreover, the mandatory minimum sentence cannot be eliminated simply because a specific amount of drugs was not alleged in the indictment. However, since defendant was not fully aware of the consequences of his plea, the plea was involuntary, and he was entitled to plea anew. U.S. v. McCann, 940 F.2d 1352 (10th Cir. 1991).

10th Circuit upholds consideration of drugs involved in dismissed counts. (270) The 10th Circuit rejected defendant’s contention that it was improper for the district court to consider drug quantities involved in counts which were dismissed under a plea agreement. The 10th Circuit had previously held that drugs not specified in the offense of conviction may be considered if part of the same course of conduct or common scheme or plan as the offense of conviction. U.S. v. Gonzales, 930 F.2d 795 (10th Cir. 1991).

10th Circuit upholds sentencing defendant on the basis of sold and unsold marijuana. (270) Defendant pled guilty to possession with intent to distribute more than 50 kilograms of marijuana. The 10th Circuit upheld the district court’s determination that an additional 189 pounds of marijuana stored in a shed should also be considered. Originally, defendant stored 314 pounds of marijuana in the shed. He loaded 125 pounds of it into a car and attempted to sell it to undercover agents. Shortly after his arrest, the remaining 189 pounds was seized. The possession of the 189 pounds of marijuana was part of the same course of conduct as the charge to which defendant pled guilty. U.S. v. Smith, 929 F.2d 1453 (10th Cir. 1991).

10th Circuit upholds consideration of marijuana defendant stored in shed on property. (270) Defendant contended that it was improper to consider 189 pounds of marijuana stored in a shed located on his property in sentencing him. On the date of defendant’s arrest, he had 314 pounds of marijuana stored in his shed. He and a co-defendant loaded 125 pounds of the marijuana into the co-defendant’s car, and the co-defendant and another individual attempted to sell the marijuana to an undercover agent. Shortly after the aborted sale, defendant was arrested and the remaining 189 pounds of marijuana were seized. The 10th Circuit upheld the district court’s calculation. It found that possession of the 189 pounds of marijuana was part of the same course of conduct as the possession of the 125 pounds of marijuana, and therefore was properly included in the determination of defendant’s offense level. U.S. v. Gallegos, 922 F.2d 630 (10th Cir. 1991).

10th Circuit affirms calculation of cocaine based on drug records. (270) When defendant was arrested, agents found two notebooks containing entries appearing to be cocaine sales according to a government agent’s testimony. Defendant’s offense level was calculated based upon the sales represented in the notebooks. Defendant contended that the agent’s interpretation of the entries was “too speculative and conjectural” to sentence him on this basis. The 10th Circuit disagreed. The agent also testified that he had contacted over a dozen of the entries in the notebook and many of the people had admitted that they had purchased the cocaine listed in the notebook from defendant. Although several people also denied buying cocaine from defendant, the evidence was sufficient to corroborate the agent’s theory. U.S. v. Ross, 920 F.2d 1530 (10th Cir. 1990).

10th Circuit finds that use of conduct related to acquitted charge does not violate double jeopardy or due process. (270) Defendant was convicted of distributing two grams of heroin and was acquitted of several other charges, including conspiracy to distribute heroin. Defendant argued that it violated double jeopardy and due process for the sentencing court to consider his involvement in the conspiracy to establish his base offense level. The 10th Circuit rejected this argument, since there had been no separate punishment for the acquitted crime, only an enhancement to the sentence of a convicted crime. However, because defendant did not admit that he had performed the conduct underlying the acquitted charge and challenged the reliability of the information which implicated him, the 10th Circuit found that such conduct may not be used as a basis for calculating defendant’s base offense level unless the government established the reliability of the information implicating defendant by a preponderance of the evidence. Here the evidence was sufficiently reliable. U.S. v. Johnson, 911 F.2d 1394 (10th Cir. 1990).

10th Circuit upholds aggregating all of the cocaine found in defendant’s vehicle in setting his base offense level. (270) Relying on U.S.S.G. § 1B1.3, the 10th Circuit held that the district court properly considered all of the cocaine found in defendant’s vehicle, because “drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” U.S. v. Trujillo, 906 F.2d 1456 (10th Cir. 1990).

10th Circuit upholds sentence based on amounts of drugs outside the offense of conviction. (270) Defendant was convicted of possession with intent to distribute approximately 3/4 pounds of marijuana. However, the district court found as a fact, that the offense involved 801 pounds. Section 2D1.1, note 12, states that “[t]ypes and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.” Accordingly the 10th Circuit held that in determining the offense level, the judge may consider quantities of drugs involved in the crime but not charged in the indictment. U.S. v. Harris, 903 F.2d 770 (10th Cir. 1990).

10th Circuit approves consideration of drugs outside the count of conviction as “relevant conduct.” (270) Defendant argued the sentencing court erred considering amounts of cocaine encompassed in counts to which he did not plead guilty. The 10th Circuit upheld the sentence, holding that “under the sentencing guidelines, the district court properly considered quantities associated with not only the offense of conviction, but also those quantities which facilitated the commercial relationship between the defendant as drug dealer and the DEA agent as drug purchaser.” Under the “relevant conduct” section of the guidelines, 1B1.3, the district court was correct in considering quantities associated with other counts for which no conviction was obtained. U.S. v. Rutter, 897 F.2d 1558 (10th Cir. 1990).

11th Circuit says use of acquitted conduct did not violate due process. (270) A jury acquitted defendant of conspiracy to manufacture more than 500 grams of methamphetamine and instead convicted him only of possession of the precursor chemical pseudoephedrine. At sentencing, the district court found by a preponderance of the evidence that defendant was responsible for the manufacture of at least 1.5 kilograms of methamphetamine and set defendant’s offense level under § 2D1.1(c)(3) using that amount. The Eleventh Circuit held that the district court did not err in using conduct on which defendant had been acquitted in setting his offense level, noting that the testimony of defendant’s coconspirators was consistent and had been corroborated by defendant’s own admissions. The court also held that use of the acquitted conduct did not increase defendant’s sentence so much as to violate due process. U.S. v. Clay, 483 F.3d 739 (11th Cir. 2007).

11th Circuit rejects claim that state conviction was part of same course of conduct as current offense. (270) Defendant argued that he was prejudiced by his counsel’s failure to object at sentencing to enhancement of his sentence based on a prior drug conviction that was part of the same course of conduct as his federal charge. The Eleventh Circuit rejected defendant’s claim that the state conviction was part of the same course of conduct as the current offense. Although defendant argued that insufficient time passed between his state conviction and federal arrest to allow use of the state conviction as a predicate offense, the test is not the mere passage of time. Because the intent of the enhancement provision is to target recidivism, the focus of the inquiry is on “the degree of criminal activity that occurs after a defendant’s conviction for drug-related activity is final rather than when the conspiracy began.” U.S. v. Hansley, 54 F.3d 709 (11th Cir. 1995). In U.S. v. Howard, 115 F.3d 1151 (4th Cir. 1997), evidence was presented that the defendant continued to engage in the conspiracy after his state conviction. Similarly, defendant continued to provide drugs to Johnson as evidenced by the tape of a March phone call. When defendant was arrested, he had a significant amount of cash which he admitted he was going to use to purchase drugs. “The only thing that aborted [his] participation in the drug conspiracy was his arrest in this case.” Hagins v. U.S., 267 F.3d 1202 (11th Cir. 2001).

11th Circuit rejects attribution of drugs distributed years before conspiracy. (270) The district court attributed 857.7 grams of crack to defendant. The government conceded on appeal that the court erred in attributing 600 grams of cocaine to defendant based on the testimony of Knight. Knight testified that he purchased some 600 grams of crack from defendant over a six-month period in 1992, long before the alleged start of the conspiracy in May 1996. Not only did this conduct occur several years before the charged conspiracy, but it did not involve the same alleged co-conspirators. The Eleventh Circuit also found that the court improperly attributed 144 grams of crack based on Murphy’s “vague” testimony that he received quarter ounce distributions from defendant. Murphy could not remember the time period during which these quarter ounce distributions were made or their frequency. The court erred in assuming that defendant distributed quarter ounces to Murphy every week for six months. However, the district court did not err in attributing 28 grams of cocaine base based on distributions defendant made to Murphy in late 1995, even though this was outside the scope of the current conspiracy. This uncharged conduct involved both the same parties as the charged conspiracy and was temporally connected to it. U.S. v. Simpson, 228 F.3d 1294 (11th Cir. 2000).

11th Circuit says sentence was properly based on both crack and powder cocaine. (270) Defendants were convicted of conspiracy to possess with intent to distribute cocaine powder and crack cocaine, in violation of 21 U.S.C. § 841(a). The court held defendants accountable for various amounts of both cocaine powder and crack cocaine. They contended for the first time on appeal that because the indictment permitted conviction for a drug offense involving either powder or crack, the absence of a special verdict required the district court to impose a sentence based only on the drug yielding the lower sentence. The Eleventh Circuit found no error, since regardless of whether the jury found that defendants engaged only in a crack conspiracy, or only in a powder conspiracy, or both, the judge was free to impose a sentence based on both drugs. There is an exception if the amount of one substance leads to a lower statutory maximum sentence than would apply to the amount of the other substance. This exception did not apply, since the amounts involved of both substances made defendants eligible for life sentences under § 841(a)(1)(A). A lower sentence may also apply if the conduct involving one of the drugs is not relevant conduct. The crack was clearly relevant conduct to the cocaine powder, since defendants were involved in a scheme to process powder into crack for retail sale. U.S. v. Riley, 142 F.3d 1254 (11th Cir. 1998).

11th Circuit rules distribution of additional cocaine was not relevant conduct. (270) Defendant was convicted of conspiring to distribute dilaudid and of making a single sale of cocaine to a confidential informant. The 11th Circuit held that defendant’s sale of an additional 546 grams of cocaine in 1986 was not relevant conduct. The counts of conviction involved a dilaudid distribution scheme; the single cocaine sale was directly related to the dilaudid, as the informant purchased the cocaine as a substitute for dilaudid. The extrinsic offense involved a cocaine distribution scheme, and the two schemes did not involve any of the same parties. Finally, defendant sold the 546 grams of cocaine more than a year before the single sale of cocaine to the informant. Thus, the acts were temporally remote. There were no “distinctive similarities” between the two schemes. They appeared to be “isolated, unrelated events that happen only to be similar in kind.” U.S. v. Maxwell, 34 F.3d 1006 (11th Cir. 1994).

11th Circuit holds that acquittal of knowingly maintaining a “stash” house does not preclude responsibility for possession of drugs at same site. (270) Defendant contended that it was improper to include in his base offense level drugs found at a “stash” house since he had been acquitted of knowingly maintaining the house for the purposes of manufacturing, distributing or using a controlled substance. The contours of knowingly maintaining are broader than those of possessing. Thus, an acquittal of knowingly maintaining does not preclude responsibility for the narrower offense of possession of drugs at the same site. U.S. v. Clavis, 956 F.2d 1079 (11th Cir. 1992).

11th Circuit affirms that drug transactions were part of same course of conduct. (270) The 11th Circuit affirmed the district court’s determination that drugs involved in transactions occurring in November and December of 1988 were part of the same course of conduct as transactions which took place January 14, 1989. In November, defendant and his co-conspirator sold 11.11 grams of cocaine to an undercover agent. In December, when the agent called the co-conspirator to purchase more cocaine, defendant told the agent the co-conspirator had gone out to pick up a package of cocaine. On January 14, the co-conspirator was found asleep at defendant’s residence when defendant was arrested there for possession of cocaine. Since the acts were closely related in time, involved some of the same parties, and nothing indicated a break in defendant’s drug activities, the district court was not clearly incorrect in determining that the transactions were part of the same course of conduct. U.S. v. Rodgers, 951 F.2d 1220 (11th Cir. 1992), amended, 972 F.2d 1253 (11th Cir. 1992).

11th Circuit affirms consideration of cocaine involved in charge on which defendant was acquitted. (270) The 11th Circuit affirmed the district court’s consideration in sentencing of cocaine involved in a conspiracy charge of which defendant was acquitted. The only evidence linking defendant with the conspiracy was the testimony of a single witness. Defendant maintained that the jury found the testimony unreliable as evidenced by the acquittal. However, the jury may have acquitted the defendant only because it felt that the distribution count on which he was convicted was not associated with the conspiracy. Thus, it would be inappropriate to assume that the jury’s acquittal meant that it found that defendant did not receive the drugs in question. Moreover, an acquittal based upon a reasonable doubt standard does not preclude a contrary finding using the preponderance of the evidence standard. U.S. v. Manor, 936 F.2d 1238 (11th Cir. 1991).

11th Circuit upholds consideration of cocaine despite defendant’s acquittal. (270) Defendant contended it was error for the district court to consider cocaine involved in an offense of which defendant had been acquitted. The 11th Circuit found no error. The fact that government did not establish all of the elements of the acquitted count did not preclude the sentencing court from considering the underlying facts, if established by a preponderance of the evidence. In this case, defendant conceded her involvement with the drugs involved in the acquitted count, and there was no doubt that defendant was connected with all of the cocaine used to calculate her offense level. U.S. v. Rivera-Lopez, 928 F.2d 372 (11th Cir. 1991).

11th Circuit upholds consideration of conduct relating to counts on which defendant was acquitted. (270) The 11th Circuit held that a district court may consider evidence of the defendant’s conduct relating to counts on which the defendant was indicted but acquitted at trial. Acquitted conduct may be considered because a verdict of acquittal demonstrates a lack of proof beyond a reasonable doubt, which is a standard of proof higher than that required for consideration of relevant conduct at sentencing. U.S. v. Averi, 922 F.2d 765 (11th Cir. 1991).

11th Circuit reverses where court determined that defendant was involved in more drugs than stipulated in plea agreement. (270) Defendant’s plea agreement stipulated that the quantity of drugs involved in defendant’s offense was 13 grams of cocaine. At the government’s urging, the district court found that the quantity of drugs involved was 15 kilograms. The 11th Circuit held that this finding was precluded by the terms of the plea agreement and the plea negotiations. During the plea negotiations, the government agreed that defendant would not serve more than 12 months. The 11th Circuit found that this “presumes that a finding that she was involved in a 15 kilogram cocaine offense would not be made.” The 11th Circuit also found that the government’s attempts to show that defendant was involved in a 15 kilogram transaction violated the plea agreement. Evidence indicated that the government orally agreed that it “would make no attempt to influence the court or the parole board by ‘packing’ the presentence report with prejudicial material.” The agreement specifically stated that the government would not seek additional “prosecutions” for “offenses which are now known to the government.” U.S. v. Jefferies, 908 F.2d 1520 (11th Cir. 1990).

11th Circuit rules due process does not prevent consideration of conduct outside offense of conviction. (270) Defendant argued that it violated due process for the district court to base his offense level an the total amount of cocaine involved in offenses with which he was originally charged, rather than the lesser amount for which he was convicted. The 8th Circuit rejected this argument, holding that due process does not prevent consideration of conduct outside the offense of conviction. Moreover, due process is met if the facts are established by a preponderance of the evidence. Here, the trial court had a reliable evidentiary basis for concluding that over 500 grams of cocaine were involved in the total offense. U.S. v. Castellanos, 904 F.2d 1490 (11th Cir. 1990).

11th Circuit joins six other circuits in allowing sentencing for drug quantities outside the counts of conviction. (270) At sentencing, the district court determined the base offense level on the basis of the total amount of cocaine involved in the scheme and not merely the four ounces charged in the count to which defendant had pled guilty. The 11th Circuit held that the district court was “correct in considering the total amount of cocaine involved in the ‘same course of conduct or common scheme or plan as the offense of conviction’ under sentencing guidelines § 1B1.3(a)(2).” The court stated that it was “neither new nor radical” for a sentencing court to consider conduct not covered by the courts of conviction and that such “practice was acknowledged and incorporated into the sentencing calculus prescribed by the Guidelines.” The 1st, 2nd, 5th, 6th, 7th and 8th Circuits have issued prior opinions agreeing with the 11th Circuit opinion. U.S. v. Alston, 895 F.2d 1362 (11th Cir. 1990).

D.C. Circuit remands where court failed to explain how it calculated sentence. (270) Defendant argued that his 144-month sentence was nearly four times greater than the maximum guideline sentence for the three crimes for which he was convicted, and that the district court failed to provide a reasonable basis that would support such a draconian upward deviation. The D.C. Circuit remanded because the district court failed to provide a clear explanation of how it calculated defendant’s sentence. The PSR concluded that the jury found defendant responsible for 11.7 grams of cocaine base found in the console of his car, which would have resulted in a guideline range of 110-137 months. Defendant objected to the inclusion of this crack on the ground that he was only convicted of possessing 1.4 grams of crack, and that his guideline range should be 30-37 months. Based on the record, it appeared that the district court should have figured defendant’s possession of the 11.7 grams of crack into the calculation of the proper guideline range. However, the panel was unable to find anywhere in the record where the sentencing court stated or even implied that it used a guidelines range that took into account defendant’s possession of the 11.7 grams. U.S. v. Lawson, 494 F.3d 1046 (D.C. Cir. 2007).

D.C. Circuit holds that 1993-94 drug purchases were part of same course of conduct as 1995 purchase. (270) In 1995, a dealer who had previously sold heroin to defendant began to work for the DEA as an informant. The informant told the DEA that he had delivered substantial quantities of drugs to defendant at least eight times in 1993-94 and that defendant accounted for all of his kilogram-level sales. In November 1995, the DEA used the informant to arrest defendant in a reverse undercover operation. The D.C. Circuit agreed that the kilograms of cocaine defendant purchased from the informant in 1993-94 were part of the “same course of conduct” as the offense of conviction. The district court went beyond an analysis of temporal proximity, noting that the transactions involved the same parties, were of a similar character and nature, and involved between one and ten one-kilograms bricks of cocaine. The temporary hiatus was the informant’s, rather than defendant’s decision. The informant left the drug trade in mid-1994, at his wife’s insistence. Defendant’s nine drug transactions with the informant manifested an ongoing relationship and pattern of criminal activity. U.S. v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999).

D.C. Circuit says transactions four years apart were part of same course of conduct. (270) Defendant was arrested in 1996 in a reverse sting operation facilitated by the cooperation of a jailed drug dealer. The dealer had told authorities that in 1992 he had arranged a 25-kilogram cocaine transaction between defendant and the Colombians. The government led defendant to believe he was doing business with the same Colombians as in 1992, with the dealer as the intermediary. Based on the strong similarities between the two transactions, the D.C. Circuit upheld the district court’s findings that the 1992 transaction was relevant conduct for the 1996 transaction. The four-year interval between the 1992 and 1996 transactions rendered both the regularity prong and the temporal prong of the relevant conduct test very weak. But the similarity was very strong: each was brokered by the same drug dealer, each involved, at least in defendant’s perception, a transaction between defendant and the same Colombians, each involved meeting with an intermediary in the U.S., and each involved the transfer of large quantities of cocaine. U.S. v. Jackson, 161 F.3d 24 (D.C. Cir. 1998).

D.C. Circuit upholds consideration of drugs involved in acquitted counts. (270) Defendant was convicted of distributing .199 grams of cocaine and acquitted of possessing with intent to distribute 12.72 grams possessed by a co-defendant. Defendant argued that the court should not have considered the 12.72 grams of cocaine in the acquitted count in sentencing him. The D.C. Circuit joined 10 other circuits in holding the sentencing guidelines allow the use of conduct underlying acquitted counts. There was no double jeopardy violation: defendant did not receive a separate sentence for the possession count; the acquitted count merely affected the point within the statutory range at which his sentence was imposed. There was no due process violation. A not guilty verdict is not equivalent to a finding of complete innocence. It merely indicates that guilt beyond a reasonable doubt was not proven. Due process is satisfied if matters considered at sentencing are established by a preponderance of the evidence. Judge Randolph concurred. U.S. v. Boney, 977 F.2d 624 (D.C. Cir. 1992).

Commission says dismissed counts in plea agreement are not excluded from relevant conduct. (270) In an amendment effective November 1, 1992, the Commission amended section 6B1.2(a) to state that “a plea agreement that includes the dismissal of a charge or a plea agreement not to pursue a potential charge shall not preclude the conduct underlying such charge from being considered under the provisions of section 1B1.3 (relevant conduct) in connection with the count(s) of which the defendant is convicted.”

Article advocates permitting “acquitted facts” to be used in sentencing. (270) A student author canvassed the authorities addressing whether facts negated by a jury’s acquittal should be considered in sentencing. Most courts permit use of such facts if they are established by a preponderance of the evidence. Some seem to permit their use only if the facts are undisputed. Others preclude their use. The majority view is preferable because of the different burdens of proof applicable at trial and at sentencing. Moreover, precluding use of “acquitted facts” would only periodically coerce judges into ignoring reliable evidence, would frustrate the policies of the Sentencing Reform Act, and would unduly limit judicial discretion. Note, United States v. Brady — Should Sentencing Courts Reconsider Disputed Acquitted Conduct for Enhancement Purposes under the Federal Sentencing Guidelines?, 46 Ark. L. Rev. 457-73 (1993).

Query	Gets the documents with
stock market	‘stock’ or ‘market’ or both
“stock market”	the phrase ‘stock market’
+stock +market	‘stock’ and ‘market’
+stock -market	‘stock’ but not ‘market’
+president -“United States”	‘president’ but not ‘United States’
(stock OR market) AND NOT president	‘stock’ or ‘market’, and without ‘president’