Robert John Jansen, Jr. v. United States

CHERTOFF, Before ALITO and Judges, DEBEVOISE,* Circuit Senior Judge. District Court OPINION DEBEVOISE, Judge. Senior District Defendant, Jansen, Jr., Robert John petition filed a pursuant to 28 U.S.C. asserting that his trial counsel was for failing argue ineffective at his sen- tencing drug possession with intent to the amount of in his possession intended for personal use should not have been included in the base offense level calculation. The District that, held assuming trial counsel was ineffective in regard, this not prejudiced for the reason that there was a strong connection between the drugs defendant intended to distribute and any drugs use, he held for therefore all pos- amounts of he sessed should enter into the base offense hold, computation. level in agreement We opinions with the of the other Courts of upon issue, that have ruled when conviction is for simple posses- distribute, sion with intent tо the amount a defendant possessed person- al may use must be determined and not be Wade, James V. Federal Public Defend- included the base offense level computa- er for of Pennsylvania, the Middle District tion. Counsel was failing ineffective for I. Assistant Siegel, Daniel Federal Public raise this issue at sentencing, the time of Defender, Byrd D. Toni (Argued), Assis- may and this failure have resulted in prej- Defender, tant Harrisburg, Federal Public udice to defendant. judgment Jansen, Appellant, Robert John Jr. District Court will be reversed and the Marino, Thomas A. United States Attor- case will be remanded for a determination ney, Smith, (Argued), Theodore B. III drugs, any, As- of the amount of if which de- sistant Attorney, and, United States Harris- fendant possessed * Debevoise, Jersey, sitting by designation. Honorable Dickinson R. United New Judge States Senior District for the District of him,” of defendant’s appropriate, recomputation only there were two people who (II level in accordance with this base offense knew “he made App. this run.” opinion. only He added that one of the two knew drove, kind what of vehicle he so he had it Background

I. (II “pretty much narrowed App. down.” 164). midnight After on June 1998 Penn- He also stated that he could offer sylvania troopers stopped light State a information that yield would the troopers Spectrum blue Chevrolet with two male three to four times the quantity Camry occupants Toyota (Id.) and a silver stop yield. would to appeared accompanying which be The troopers advised defendant of his Spectrum and which also had two occu- rights constitutional approximately one- pants. troopers previously The had re- half hour stop. after the There was information that Spectrum ceived during interval time which the two cars transporting illegal drugs from would were searched and then defendant was City Pennsyl- the New York area back to again advised of his rights. constitutional passenger vania. Defendant was the (II 177). App. asked When what was Spectrum. Its was driver Andrew De- him the troopers informed defendant Camry Hart. The driver of the awas only that cooperation his would be made Hispanic male who went the nickname sentencing judge. known his The de- passenger “Louie.” The was another fendant then stated that the cocaine found Hispanic male. him, pants his was “all for that he troopers a plastic bag retrieved going was hot to deliver anybody that to groin from defendant’s Subsequent area. area, strictly [and] that it was his.” laboratory analysis disclosed that within (II 178) App. bag bags, were two smaller one con- Defendant trooper also told the taining grams 34.2 of cocaine and the other who was him containing grams questioning just gone 16.3 of crack that he had cocaine. City York Defendant in New to meet an individual person also had on his $770 “Louie,” named currency pager. Shortly given and a Louie had him after the cocaine, an ounce of stop pur- a detection canine that he had also brought scene, Louie, chased the crack and the driver of the cocaine from Spec- trum, DeHart, quantities that these consented to a search. cocaine were the (II drugs seized from his pants App. There was discovered on the rear floor a 178- 233-34). (“VCR”) 79, Further, according to defen- black videocassette recorder dant, Louie, person driving which a who was the plastic bags. contained number of Camry, Analysis later had also delivered to him the bags disclosed that these containing contained a total of VCR cocaine which he was to grams of cocaine. Richy deliver to a man named Willow Neither a consent search nor a dog sniff Middleburg, Pennsylvania, early that Camry any drugs, disclosed (II 179). morning App. consequently the troopers permitted the Hispanic to proceed two males on their procedure, according The usual to defen- way. dant, was for Willow to contact Louie in Shortly after had by telephone place been New York a co- order, searched and the found on per- his caine after which Louie would com- son he going volunteered that he was to municate with defendant to inform him have to find out police package pick up “who told the on that there was a 179). (II App. purchases Defendant would and facilitated their order to

New York York, delivery of a cheaper price drugs. to New take obtain a for his own then drive (II 228-30). containing cocaine and drive back to App. unemployed VCR He was Pennsylvania 30, 1998, in order to deliver the VCR June but that he testified had $1,000 Louie follow defendant nearly to Willow. paid for the two ounces of York to residence and from New Willow’s cocaine and crack cocaine seized from his from Willow. payment receive Before pants. explained He that the seized $770 leaving Pennsylvania Louie would de- stop from him at the time of the was the of cocaine as liver to defendаnt proceeds sale of two cars that be- (II transportation for his services. payment longed App. to his father. 179-80). (II App. On cross-examination defendant admit- grand jury On October 1998 re ted that on occasion he would sell some of charging turned a one count indictment brought what he back for himself to fi- defendant with distribution nance next purchase, being his cocaine to cocaine and co with intent (II much in York. cheaper App. New 283- aiding abetting caine base and viola 84). Specifically, defendant admitted that 841(a)(1) § tion of U.S.C. and 18 U.S.C. one-eighth quantities he had sold ounce to trial. proceeded Testifying 2. He balls,” “eight ap- of cocaine in Milton for defense, his own defendant recanted the proximately and that he sold an $150 incriminating he statements had made on “eight ball” cocaine to an undercover (II 219-36; App. arrest III night his trooper days state before his arrest on 277-87). App. At trial he testified that the (II 285). May App. Defendant DeHart, driver, him had called and asked price set his so as to be to able use the along him ride with DeHart on a to trip to (II proceeds purchase to more cocaine. York, New because DeHart did not like 287). App. (II 221). traveling App. alone He went During principal his closing and rebuttal satisfy he needed cocaine along because to arguments the Assistant United States At- (Id.) Defendant his own habit asserted that torney argued strenuously that both the up something” he knew DeHart “was cocaine contained the VCR and the co- (Id.). but he did not know what it was. caine and crack seized from defendant’s contradictory In a somewhat vein he testi pants рossessed were with intent to dis- fied that he knew the co VCR contained Citing tribute. the fact that cocaine was caine, much, although he did not know how cheaper much govern- New York the and that it would be delivered to Willow ment “... rhetorically why asked being after transferred to the vehicle that ounces, you get bring would[n’t] two (II from App. followed them New York you back when can sell one of those two 226). enough money buy and make another Although defendant disavowed most of one or two ounces and use the other incriminating statements he had made (II 345). ounce?” App. arrest, he night of his reiterated his initial contention that the cocaine and you bring back an [I]f ounce of pants crack cocaine seized from his you were cocaine and break it eight down to (II each, App. his own it at you balls and sell can see $150 He you half[,] went to New York to obtain can cocaine use half and sell an cheaper eight because it was there. He admit- being eighth [ ball of an ] - ted he people enough introduced to his sources ounce. You can sell it to make money buy your another ounce on cuits had that drugs possessed held may own. not be included calcu lating a Guideline sentence for possession 346) (IVApp. to distribute under U.S.S.G. jury guilty. found defendant It did § 2D1.1. Wyss, United States v. 147 F.3d not, to, required spe- and was not make a (7th Cir.1998); United States v. Kipp, finding cial as to whether the found (9thCir.1993). 10 F.3d 1463 Defense coun pants defendant’s sel not argue did that the drugs found in intent to distribute. pants were for personal use Using the 1998 edition of the United and should not be counted in computing States Guidelines Manual successfully offense level. Had he ar probation prepared officers who defen- gued point, the VCR and (“PSR”) presentence report dant’s calcu- drugs previously distributed would drug lated the under have produced marijuana a total equivalent trafficking guideline at U.S.S.G. 2D1.1. kilograms. Marijuana of 373.1 i) grams The calculation included the 448 range kilograms of 100 to 400 produced an powdered cocaine found in the at VCR offense level of 26. In defendant’s circum ii) arrest, the time of 50 of ounces cocaine stances his sentencing range would have defendant admitted he been 78 to 97 if only months. Even iii) previous trips, distribution on the 16.3 portion of the found in defendant’s grams of crack cocaine found on defen- pants were found to have person been for person dant’s that defendant told the al use and were excluded from the bаse iv) use, trooper personal were for computation, offense level defendant would grams powdered 34.2 of cocaine found on 1,000 have fallen into a less than 700 to person that defendant told the kilogram range, sentencing and his range troopers personal were for use. These would have been than 121 less to 151 quantities, marijuana when converted to event, In any months. this contention was equivalents, yielded a total of weight not raised the District Court. kilograms marijuana. (PSR, 705.94 of par. 4-12). Defendant appealed his conviction. The appeal focused on the of suppression evi- 2Dl.l(c)(5)

Pursuant to U.S.S.G. this dence during obtained his arrest. The 1,000 amount fell within the 700 to kilo- Appeals judgment Court of affirmed the of gram range, resulting an offense level of the District Court. 30, 30. An offense level of combined with III, history category a criminal pro- 30, On 2001 October defendant filed an a sentencing range duced of 121 to 151 petition post amended conviction relief months. pursuant to 28 U.S.C. 2255. He con- sentencing At defendant’s counsel raised tended, among things, other that his trial objection computation counsel in failing had been ‍​‌​​​​​‌​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‌​‌​​‌​​‌‍ineffective to level, arguing uncharged offense that the object drug quantities to consideration of “historical” distributions attributed to de- which com- two fendant should not be included. The court 22, prehensive opinions August dated 2002 rejected argument and sentenced de- 1, 2002, respectively, November imprisonment. fendant to 121 months District Court addressed six claims At sentencing the time of that defendant advanced. The Court or- Courts Appeals for the petition Seventh and Ninth Cir dered that be denied in its Aрplying reasoning that there was no basis for F.3d at 477.

entirety and dissent, appealability. a certificate of the Fraser the District Court stat- issuance ed: appeal to the instant is the Relevant opinion of the District Court portion reasoning We believe that contention that his with defendant’s dealt applicable Fraser dissent is to Jansen’s failing ineffective for to trial counsel was possession of the crack case. Jansen’s sentencing at the time of that the argue parcel cocaine was of his at- pants found in his were for tempt powder to distribute the cocaine been included in use and should have in the VCR. crack was obtained as a The computation. level The the offense Court trip of Jansen’s York. result New opinion noted that as of the date of its per- Jansen received the crack from the for the Second and him gave son who The connec- VCR. joined Eighth Circuits had those of the tion between the intended Jansen holding and Ninth Circuits in Seventh (the powder cocaine in the calculating

when the base offense level for VCR) and the drugs allegedly Jansen a conviction of (the intended for his own use crack on distribute, a District Court must exclude person) strong enough his that his drug quantities person those reserved for during use of both “occurred Williams, al v. use. United States commission of the offense conviction.” (2nd Cir.2001); F.3d United States Therefore, all of drugs pos- amounts (8th cir.2001).1 Fraser, v. 243 F.3d properly sessed Jansen were consid- opinion also referred to the one Court ered to be relevant conduct. Appeals opinion per which holds that (I 56) App. quantities may sonal use be included calculation of the base offense level. Unit Recognizing that its decision conflicted Antonietti, ed States v. 86 F.3d 210 holdings appeals, with the of four courts of (11thCir.1996). the District Court stated that “a valid disagreed question may

The District Court with the be raised as to whether premise it attributed to the majority object counsel’s failure to to our sentence Appeals setting Court of that “the act of perform- calculation constituted deficient (I 57). personal consumption However, aside narcotics for App. ance.” because the not á of a scheme or to Court had concluded that all of the drugs, Williams, drugs. these including 247 those pants, found defendant’s (I App. included, F.3d at 358.” Instead the should it found that defendant persuasive District Court found prejudice any the rea- had suffered no from short- counsel, i.e., soning of the The dis- comings dissent Fraser. his he failed “[had] sent contended that a when defendant’s to establish that a there is reasonable that, attempted purchase per- for probability but for counsel’s failure to sonal use “inextricably object, intertwined” the result of proceeding (Id.). with her attempted purchase for distribu- have been different.” The District tion, the entire should be counta- Court denied claim of ineffec- Fraser, ble sentencing purposes. for 243 tive assistance of counsel. opinion drags personal After the District Court issued its session of for use could not be Appeals the Court of sentencing for the Sixth Circuit relevant considered conduct for joined Gill, purposes. courts which had held that in a United v. 348 F.3d States possession (6 Cir.2003). pos- with intent to distribute case guaranteed аp- as the ‘counsel’ a certificate of requested

Defendant (Id.). Amendment.” the Sixth granted this Court. We from pealability defen- on the issue whether request In the circumstances of this case constitutionally ineffec- counsel was dant’s per defense counsel’s failure to raise the sentencing failing argue at his for tive at the time of argument sonal use sentenc from his drugs seized hearing that deemed to constitute ineffec ing must be included in have should not been person The District Court did not find tiveness. for offense calculation the base not government otherwise and the does fol- appeal This to distribute. intent with From the time of his contend otherwise. lowed. at his trial defen arrest until he testified that the found dant maintained Scope of Review II. Jurisdiction personal for use. There pants his were subject mаtter Court had The District that he intended to sell some was evidence petition of defendant’s jurisdiction future in order to finance those pursuant to 28 U.S.C. relief post-conviction government At trial the did purchases. jurisdiction appeal of his have 2255. We drugs were argue that none of those 2253(a). §§ pursuant to U.S.C. use; argued rather personal drugs found in defendant’s some of the a find did not make The District Court him to to be sold to enable pants were Defendant’s contention ing respect to with continue to obtain object to the failure to that his counsel’s defi computation constituted sentencing sentencing At the time of two Courts Rather it held drugs possessed held that performance. Appeals cient had deficient, defen performance use are not relevant even mere ruling per intent tо distrib prejudice, no crime of dant suffered from into the base are not excluded ute and should not enter quantities sonal use computation computation. United States offense level offense level the base Kipp, v. Wyss, supra; convic v. United States intent to distribute possession with held had of law One Court ruling question supra. raises a tion. This personal use drugs possessed Parrish subject plenary review. and is (3d level included in the base offense Fulcomer, 326, should be Cir. 150 F.3d 327 v. to computation possession a Anto States v.

distribute case. United (11thCir.1996). III. Discussion nietti, Howev 86 F.3d er, possession not a mere Antonietti was To succeed on a claim of ineffective case; charge a a case that included was counsel, a must defendant assistance intent possess with conspiracy i) of coun performаnce show both distin arguably and thus ‍​‌​​​​​‌​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‌​‌​​‌​​‌‍was objective of rea fell standard sel below Competent Wyss Kipp. and guishable from ii) errors of counsel and sonableness sentencing at have advanced counsel would v. the defense. Strickland prejudiced drugs contention that 668, 687-88, 691-92, Washington, 466 U.S. not personal use should claimed were for (1984). 2052, To 80 L.Ed.2d 674 104 S.Ct. of the base computation into the enter prong first a defendant must establish the level. offense performance ... that counsel’s “establish that coun- Horn, strong presumption a Despite 266 F.3d Jermyn v. was deficient.” reasonable, (3d Cir.2001). Strick- was 257, requires performance “This sel’s 2052, land, at 104 S.Ct. 466 U.S. functioning showing that counsel was The con should be determined on the is overcome here. level presumption in performance following: counsel’s clusion that basis hindsight. is not based effectivе (1) (A) committed, all acts and omissions Kipp readily Wyss decisions aided, abetted, counseled, command- any to him. Nor can considered available ed, induced, procured, willfully or failing discerned for strategy sound defendant; caused use issue. have raise the We (B) jointly of a undertaken case trial counsel is ineffective for held that (a activity plan, criminal criminal urge that a defendant was enti failing to scheme, endeavor, un- enterprise arguably tled to an available minor role dertaken the defendant con- Sentencing Guideline reduction. United others, cert with whether or not (3rd Headley, v. 923 F.2d States charged conspiracy), as a all reason- Cir.1991). By the same token where de ably foreseeable acts and omissions object improp counsel fails to to an fense joint- оf others in furtherance of the er enhancement under ly activity, undertaken criminal Guidelines, counsel has rendered ineffec tive assistance. As the District Court rec during that occurred the commission ognized, controlling issue is whether conviction, prepa- of the offense of prejudice by defendant suffered reason of offense, ration for that or in the this failure. attempting course of to avoid detec- offense; responsibility tion or for that

If some or all of the discov person per ered on defendant’s were for (2) solely respect to offenses of a if possession sonal use and 1.2(d) character for which 3D personal use should not constitute relevant require grouping multiple conduct a when defendant is sentenced counts, all acts and omissions de- distribute, with intent to dеfen (1)(A) scribed subdivisions prejudice dant suffered in this case. Even (1)(B) above that were quantity small reduction same course of conduct or common entering into compu the base offense level scheme or as the offense of tation placed would have defendant in a conviction;2 1,000 than kilogram range. less 700 to It Applying provisions, these five Courts is for the District Court to determine the have held that in a drugs, any, amount of which defendant possessing drugs per- distribution case such Whether con- sonal use does not constitute relevant possession constitutes relevant conduct for duct and the of such should the purpose computing defendant’s base computing not be included when the base offense level a question of law that has Only opinion in offense level. the Anto- yet not by been dеcided this Court. nietti and the dissent in Fraser take a conduct, Defining relevant U.S.S.G. contrary view. § pertinent part: 1B1.3reads in (a) (i) A through common rationale runs each specified, unless otherwise the guide- majority opinions. base offense level the of the five Each con- where specifies line more than one base offense trasts the of the offense of seriousness provisions 2. These 1998 Guidelines current manual. provisions Manual are the same as the distributing drugs possession mining quantity with relevant to a rejects personal an inter- for one’s use offense level under the sen- guidelines pun- of the that would pretation tencing guidelines, only drugs ‘that were equal of these offenses with se- part ish each of the same course of conduct or example, Kipp verity. For Court common scheme оr as the offense of “... failure to distinguish considered,” observed that conviction’ are to be and that possessed personal drugs possessed the amount for personal for use are not for possessed “part from the amount distribution of the same course of conduct” or principle contravenes a fundamental of the “common scheme” as intended for proportionality Court, distribution. 247 F.3d at 357. The Guidelines — sentencing would result as have the other Appeals, Courts of dis- —because Antonietti on the basis that sentencing drug tinguished user who Antonietti involved a grams personal gave away for use and one conspiracy to possess harshly pos- distribute, more than a dealer who with intent to implicating differ- grams considerations, for sessed distribution.” F.3d ent see U.S.S.G. lB1.3(a)(l)(B). Although arriving § at 1466. at the same conсlusion, the various Courts have Courts, Two of the agreeing while with reached that destination different Williams, the results in Kipp reject routes. (a)(2), reliance on Section and either ex- Williams, pressly Kipp cases, implication rely on Section

Two (a)(1) (a)(2) § of U.S.S.G. 1B1.3 for their conclu- rely upon Section U.S.S.G. personal sion that Kipp § use is not 1B1.3. the Court stated: relevant conduct in a distribution case. guidelines instruct the District (a)(2) They note that Section applies “sole- to calculate the base offense level ly respect with to offenses of a character using only quantity involved 3D1.2(d) which require group- quantities the count of conviction and ing multiple counts” and further note part that “were of the same course of simple possession is not one conduct or of a common scheme or crimes listed in grouping rule. As the plan as count of conviction.” Court stated Gill: lB1.3(a)(2). Drugs pos- U.S.S.G. Simple possession for mere not is not “relevant” un-

sessed use are lB1.3(a)(2), “part relevant to the crime of der Section as course they intent to distribute because same of conduct or common are scheme or “part plan,” of the same course of conduct” or because section applies only “common if the two can scheme” as offenses intended 3D1.2(d). See Accordingly, grouped under distribution. we hold that Section Hill, in calculating Simple posses- the base offense 79 F.3d at 1482. level distribute, possession with sion is not one of the intent to crimes listed grouping triggers ap- district court must make a factual ‍​‌​​​​​‌​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‌​‌​​‌​​‌‍rule find- plication of that ing drugs possessed relevant conduct sec- and,cаnnot tion. any for distribution include possessed strictly

amount Wyss 348 F.3d at 153. is to the same (a)(2) Citing effect. Section the Court (footnote omitted). 10 at F.3d 66 stated that count relevant conduct “[t]o as Similarly Williams that sentencing guidelines, Court held under the federal a lB1.3(a)(2), § ... of drug part “[u]nder U.S.S.G. deter- offense must be the same 246 offense, or in or common or tion for that the course of conduct scheme

course of attempting respon- to avoid detection or of conviction.” Then offense plan, as the sibility only can if it is for that offense” under Section be that “[i]t he noted lB1.3(a)(l), the offense group of for since of convic- same offenses part of the required tion an intent distribute to F.3d at 632. sentencing purposes.” the act of stating accompany possession that the Court suggests This was 841(a). (a)(2) pos- Possessing under 21 U.S.C. applicable Section drugs personal use was not of personal part for use would be for drugs session of of, or to the commission prep- of the same connected relevant conduct for, aration of or common scheme. or concealment the distri- course of conduct This, bution course, contrary opinions type offense. is Kipp and Williams which held that (citations omitted). 348 F.3d at 153 (a)(2) but applicable posses- Section entirely It is not clear whether the ma- not part use is personal sion for jority opinion in Fraser relied on Section same of conduct common scheme course (a)(2) holding drugs for that possessing its possess distribution. for The Court personal for is not relevant use conduct however, Wyss concluded, that Section possession a for distribution case. The (a)(2) aрplicable posses- not because Wyss, opinion approvingly cited both use cannot personal grouped sion for (a)(2), rejected which reliance on Section with other offenses. (a)(2). Kipp, which relied Section Wyss, rejecting reliance on after Section By implication majority opinion holds (a)(2), (a)(1), refer to Section but did not (a)(1) that Section does not require that must have concluded that implication possessing drugs for use be (a)(1) render posses- did not mere Section deemed possession relevant conduct a conduct in posses- sion use relevant a for with intent to distribute case. sion intent to distribute case. The with By or another five one route Courts common opinion forth sense reasons set Appeals have reached the same conсlusion. excluding possession per-

for Only Appeals for the Court of the Elev conduct. sonal as relevant use enth Circuit has held that when calculating Court, having Gill held Section the base offense level under 2D1.1 of the (a)(2) inapplicable, relied on Section to be drugs possessed Guidelines for personal (a)(1) possession holding its use should be included. United States v. use is con- relevant supra. Kipp was decided be Antonietti computing duct lev- when base offense decision in Antonietti Each of fore el in case: distribution the relevant cases that Antonietti distinguished may

Uncharged conduct be considered was decided after Antonietti, in calculating sentencing range un- out that it pointing was not a der only simple possession if the intent to Guidelines case; Returning only posses conduct is “relevant.” rаther it dealt with not Sentencing Guidelines lan- sion with to distribute Manual’s intent but also con guage spiracy we hesitate to describe as In a conspiracy to distribute. —which “plain,” although it is unequivocal amount of involved is unaffected —the per- the use that a defendant makes of the Gill, Williams, drugs. sonal cannot be considered an F.3d at “act[ ] Fraser, 357-58, during that occurred at the commission F.3d at 243 F.3d 4; Wyss, conviction, n. 147 F.3d at prepara- offense of 632. The Rather, position in the relevant conduct. under dissent Fraser advanced (cid:127) lB1.3(a)(l)(A), § “purported purchase of the act “occurred dur- that Fraser’s use, ing the commission of pur her own the offense of con- methamphetamine for viction,” it is If argument relevant. at the same time as the metham chased accepted were defendant’s possessiоn for she intended to sell is tested phetamine personal use occurred during the commis- general relevant conduct under the more lB1.3(a)(l)(A). possession sion of the crime of with intent § in provision contained should, therefore, con- lB1.3(a)(l)(A), distribute § relevant conduct Under sidered relevant conduct. In such event during ‘all ... that occurred includes acts prejudiced by he would not have been the commission convic of offense of of failure his counsel to have in raised (emphasis tion.’” 243 F.3d at 476-77 at sentencing. issue the time of original). emphasized The dissent that attempted drug purchase was one “[t]he Contrary to government’s con involving single, fungible transaction tentions, (a)(2) we conclude that Section is and, single type drug” and a of quantity applicable, that possession mere of a Antonietti, that relying оn concluded part use is not of the same purchased “whether Ms. Fraser some of course of conduct or common scheme as drugs for her no make[s] possession the offense of computing in her sentence un difference’ (a)(1) drugs and that Section is at der the Guidelines.” 243 F.3d applicable. The in the instant case District Court Ap- As observed the five Courts reasoning of the dissent persua- found ‍​‌​​​​​‌​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‌​‌​​‌​​‌‍the that peals have reached a similar ultimate that all sive. The Court noted the seized conclusion, this result is in accord with an single purchase from a in derived objective Sentencing overall Guide- City, although New York some of the possession person- lines. The crime of in transported a VCR and qualitatively very al use is from different It, pants. some were stored the crime of with intent to dis- therefore, that, applying held U.S.S.G. significantly tribute and merits a different lB1.3(a)(l)(A), § all of the should be punishment. level Were computation included the base drugs possessed for use added offense level. quantity possessed for distribution serious sentencing anomalies could result. As government

The urges adopt we “a Kipp, stated would contravene rule advanced the Fraser dissent principle fundamental Court, applied by the District contend- sentencing.” proportionality Guidelines — ing operation “the section 10 F.3d at 1466. lB1.3(a)(l) qualified by is not opera- lB1.3(a)(2), tion of section and the base argued, and several government The has properly (a)(2) level offense ‘determined on agreed, Courts have that Section of all acts ... applies “solely ] basis inapplicable committed[ because it during the defendant ... respect occurred to offenses of a character for which 3D1.2(d) mul- require grouping the commission of the offense of convic- ” (Govt. counts,” gov- tiple simple tion.’ Brief at and the offense of argues groupable ernment is not under that sec- U.S.S.G. lB1.3(a)(l)(A) conclude, however, that the “of- says nothing about wheth- tion. We er an act need be of a scheme or fenses” to which reference is made Sec- (a)(2) offense, offenses, to distribute order to be counted tion are the counts,’ (a)(2), conviction, possession tiple in this case as used subsection by applies grouping for distribution covered U.S.S.G. offenses for which offense). (a 3D1.2(d) § required § An offense counts would be groupable 2D1.1 under (a)(2) meaning multiple the of Section is not had defendant been convicted of within constituting crime assertеd relevant counts.” That describes the the circumstances conduct, case, possession present in this case mere the which § In by groupable. Applica- covered U.S.S.G. 2D2.1. oth- distribution offense is (a)(2) emphasizes ap- er words Section defines what consti- tion Note 10 the different (a)(1) (a)(2) proaches tutes a defendant’s relevant conduct when of Sections and stat- (a)(1) (a)(2) groupable ing part the offense of conviction is a and “[s]ubsections offense, regardless of the of the adopt nature different rules because offenses of alleged In respect relevant conduct. the character dealt with in subsection (a)(2) (¿a, 3D1.2(d) disagree § applies) we with the Courts of to which simple pos- pattern which have held because often involve a of misconduct that discrеte, groupable readily session of is not a offense cannot into broken (a)(2) inapplicable. Section meaningful identifiable units that are purposes sentencing.” This conclusion and our further conclu- (a)(2) sion that Section significant stands its own We have alluded above to the superseded and is not expanded or differences between the offense mere (a)(1) provisions of support Section finds offense of Application Notes to U.S.S.G. 1B1.3. to distribute. Application Note 1 light treats the two sections of these happens differences one who provisions.3 as two distinct Application possess drugs for his own extensively Note deals with Section is not engaged a “common scheme or a(l)(A) (B). Application plan” Notes 3 with or “same course of conduct” himself) (a)(2). through as, 10 largely govern perpetrators Section (including Application provides in part, Note 3 a distribution scheme. This conclusion is “ ‘[o]ffenses of a character Commentary which accord with the Guideline 3D1.2(d) require grouping would of mul- discussing these terms.4 (a)(1) (a)(2), 3. qualify "... Under subsections aas common scheme or on the factors; i.e., specific any focus is on the acts and basis of of the above omissions for listed (the commonality which the of victims same inves- defendant is to be held accountable basis), ongoing tors were defrauded on an determining applicable guideline range (the commonality of offenders conduct con- ongoing conspiracy), stituted an commonali- (to ty purpose group defraud the of inves- plan” 9. "Common scheme or and "same tors), (the similarity operаndi or of modus course closely of conduct” are two related computer manipulations same or similar concepts. scheme). were used to execute the (A) plan. Common scheme or For two or (B) Same course of conduct. Offenses that part more offenses to constitute aof com- qualify part do not as of a common scheme or plan, they mon scheme or must be substan- plan may qualify part nonetheless tially connected to each other at least one they sufficiently same course of conduct are factor, victims, common such as common connected or related to each other as to war- accomplices, purpose, common common or they part rant the conclusion are of a operandi. example, similar modus For single episode, spree, ongoing series of together conduct of five defendants who de- appropriate offenses. Factors that are group frauded by computer of investors determination of offenses are whether suffi- manipulations unlawfully ciently transferred connected or related to each other to eighteen-month funds period over an be considered as of the same course of majority attempted fendant was arrested when she agree with the Thus we purchase grams methamphet- to 456.6 of of to address the issue Courts At Williams, sentencing hearing amine. the she tes- Wyss, Fraser majority (Kipp, that tified she intended to consume the Gill) drugs of for that majority drugs; of the the rest she intend- part of the same course personal use is family ed to distribute to and friends. The common scheme or as of conduct or government produced evidence that the to possession with intent methamphetamine defendant had sold conduct in a dis- therefore is not relevant defendant, In Williams the past. the a case.5 tribution user, major chronic that a claimed drugs of the any significant portion If grams upon of the 68.9 seized his pants person- in defendant’s was for found In Gill the personal arrest was for use. of prejudiced by al he the failure use was defendant contended that of the 35.4375 object to to the inclusion of his counsel grams possession only of cocaine his 6.8 computation in the of his base drugs such grams possessed was dis- drugs of offense level. The Each so that tribute. case remanded use, any, if will personal held for defendant court thе district could determine the finding by a the District Court. require drugs possessed personal amount of for re-sentencing upon only and for based use The Fraser dissent notes a with problem drugs possessed the distribution. courts will have to deal when which district requirement to exclude applying the Fortunately already existing record in distribution possessed personal use present permits case the District parse courts to require cases: district “[t]o to make a reasonable calculation of personal quantities out whenever such amount, any, contained of (and I am it will allegation is made sure intended for pants in defendant’s made) needlessly burden often now be will necessity of a full personal use without yet finely quanti- with another tuned them evidentiary hearing. blown Sentencing ty decision to make under the IV. Conclusion system.” 243 F.3d at 477. The

Guidelines In problem. this relevant cases illustrate sentenc- have concluded that when We Kipp possessing the defendant admitted a of ing defendant argued cocaine grams 80 to 90 of but intent to distribute the court should purpose computing or six for the possessed grams he all but five not include In Fraser the de- offense level which the use. the base his own similarity returns are degree course of conduct because such conduct include the offenses, intervals). (repetitions) only required yearly regularity of the of- at fenses, 1B1.3(a)(1), Application Note 9. and the time interval between the of- U.S.S.G. fenses. When one of the above factors is concurring opinion Judge ex- his Alito absent, stronger presence at a least one presses about this conclusion reservations example, required. the other factors is For likely that the Sen- "[i]t and notes that seems alleged to be relevant is where the conduct conviction, tencing this Commission has not considered relatively remote to the offense concluded issue.” While we have regularity stronger showing similarity majority Ap- position of of the Courts of necessary compensate for the absence of peals is consistent with the structure temporal proximity. nature of the of- Guidelines, commentaries may fenses also be a relevant consideration Judge suggestion that the Commission Alito’s (e.g., a failure to file tax returns specifically possi- as as soon years appropriately address issue in three consecutive good ble makes sense. part of same would be considered Ac- UNITED of America STATES сordingly, the order District Court and the case remanded for will be reversed v. proceedings further accordance with WILLIAMS, Martin Lewis a/k/a opinion. Johnson, Ejoh, Peter a/k/a a/k/a Anderson, Appellant. Peter ALITO, Judge, concurring. Circuit No. 03-2434. presented this case is one The issue by Sentencing Appeals, resolved United States Court of that should be position taken most Third Circuit. Commission. appeals regarding ap- of the courts of Submitted Under Third Circuit LAR lB1.3(a)(l) (2)

plication of U.S.S.G. 34.1(a) on Feb. 2004. easy this context is not reconcile May provisions, ‍​‌​​​​​‌​‌​​‌​‌​​​‌‌‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‌​‌​​‌​​‌‍of those and there language policy arguments on seem to be reasonable question.

both sides of the On the one

hand, may argued drugs pos- it solely personal use

sessed should not sentencing consequences

have the same possessed

those for distribution. On the hand, proven

other when it has been that a possessed drugs with the intent distribute, difficulty deciding portion

whether some of those solely may a rule against requiring

counsel such a

determination. likely Sentencing

It seems

Commission has not considered this issue. has,

If certainly it it has not made that not,

clear. If it has should. view of position great majority taken appeals, case, I courts of concur urge

but I Commission to possible.

address issue as soon as

Case Details

Case Name: Robert John Jansen, Jr. v. United States

Court Name: Court of Appeals for the Third Circuit

Date Published: May 21, 2004

Citation: 369 F.3d 237

Docket Number: 02-4215

Court Abbreviation: 3rd Cir.