UNITED STATES of America, Plaintiff-Appellee, v. Nancy BELL, a/k/a Nancy Hartsock, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Iris Gibson, Defendant-Appellant.
Nos. 10-4644, 10-4651
United States Court of Appeals, Fourth Circuit
Decided: Dec. 21, 2011
667 F.3d 431
Pursuant to the foregoing, Mr. Liotti is hereby
PUBLICLY ADMONISHED.
Argued: Oct. 27, 2011.
Before DAVIS and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge DAVIS wrote the opinion, in which Judge FLOYD and Senior Judge HAMILTON joined except as to footnote 8. Senior Judge HAMILTON wrote an opinion concurring in part and concurring in the judgment, in which Judge FLOYD joined.
OPINION
DAVIS, Circuit Judge:
Appellants Nancy Bell and Iris Gibson (Bell‘s daughter) pled guilty without a plea agreement to several counts arising out of a conspiracy to distribute oxycodone pills. On appeal, they challenge the drug quantities from which the district court calculated their base offense levels under the Sentencing Guidelines, primarily because (1) Bell obtained the pills with a valid prescription and consumed some of the pills herself, and (2) the evidence of actual drug trafficking consisted of co-conspirator testimony of uncertain reliability. Having fully considered the parties’ contentions, we are persuaded that, because the district court failed to explain adequately its methodology for calculating drug quantity and otherwise to make findings sufficient to permit appellate review of Appellants’ sentences for procedural reasonableness, we
I.
A.
At least since 2002, Bell, who is sixty-five years old, has suffered from several back ailments, including sacroiliitis (inflammation of the joints between the spine and pelvis), lumbar radiculitis (inflammation of lumbar nerve roots), and a protrusion of one of her lumbar discs. She also suffers from occasional breakouts of shingles. Since 2002 she has received treatment for the pain resulting from those ailments at the Pain Management Center at St. Mary‘s Medical Center in Knoxville, Tennessee. Doctors at St. Mary‘s have prescribed Bell several narcotic pain relievers over the years, including OxyContin for “long-acting relief” and Percocet for “breakthrough pain.” J.A. 276. At issue here is the OxyContin, a brand name version of oxycodone, the distribution of which in certain circumstances is unlawful.1
Beginning in or before January 2004 through April 2006, Bell was prescribed ninety 20-mg OxyContin tablets per month. In May 2006 her prescription was changed from 20-mg to 40-mg pills, at first sixty pills per month and then, beginning in June 2006, ninety pills per month. She continued to be prescribed ninety 40-mg OxyContin pills per month through August 2009.2 Because oxycodone is a controlled substance, she was required to undergo periodic “urine screens” and “pill counts” to ensure she was consuming the drug. J.A. 276. There is evidence in the record of several urine screens, the results of most of which were “satisfactory” or “appropriate,” indicating that Bell was consuming at least some of the oxycodone. One urine screen described in the record, sometime prior to May 2004, was “low.” All her pill counts have been accurate. Indeed, her nurse at St. Mary‘s wrote that Bell “has an outstanding record with our pain center.” Id.
It turns out, though, that Bell was not consuming all of the oxycodone pills she was prescribed. Instead, she was selling a substantial number of them unlawfully and using much of the money she received to buy lottery tickets. Specifically, as the evidence at sentencing showed, twice a month Bell would travel from her home in Maynardville, Tennessee, to Jonesville, in Lee County, Virginia, where Gibson lived and where they would either sell oxycodone pills for cash or front the pills to others who would sell them and return to Bell or Gibson with the proceeds.
Law enforcement eventually learned of the scheme and used a confidential informant to make three controlled purchases from Bell and Gibson at Gibson‘s residence in Lee County, buying a total of ten 40-mg oxycodone pills. Officers then obtained a search warrant for Gibson‘s home, a trailer in the Horton subdivision of Lee County, and executed the warrant on July 30, 2009. Agents found a pill bottle for OxyContin in Bell‘s name with fifteen 40-mg OxyContin tablets and thirteen Endocet tablets (a combination of acetaminophen and oxycodone), and $1,776 in cash. They found two
Five months later, on December 16, 2009, a federal grand jury returned an indictment charging Bell, Gibson and six others with conspiracy to possess with intent to distribute oxycodone from January 1, 2004 to December 14, 2009, in violation of
In due course, Gibson pled guilty to each count of the indictment without a plea agreement, followed by Bell shortly thereafter.
B.
In anticipation of sentencing, presentence reports (“PSRs“) were prepared for Bell and Gibson. The principal consideration in calculating the base offense level under the Sentencing Guidelines was the quantity of drugs attributable to the conspiracy. To determine that number, the probation officer relied primarily on the prescriptions through which Bell received her oxycodone pills. As stated above, from January 2004 to April 2006 (27 months) Bell received ninety 20-mg pills per month, a total of 2,430 pills with a total weight of 48.6 grams. In May 2006 she received sixty 40-mg pills, with a total weight of 2.4 grams. From June 2006 to August 2009 (38 months) she received ninety 40-mg pills per month, a total of 3,420 pills with a total weight of 136.8 grams. The total weight of all the oxycodone pills Bell was prescribed from January 2004 to August 2009 was 187.8 grams, equivalent to 4,695 40-mg pills.
Under the Sentencing Guidelines, 1 gram of oxycodone is designated as equivalent to 6,700 grams of marijuana for sentencing purposes.
The probation officer noted in the PSR that Bell may have been distributing some pills other than those prescribed to her, namely pills prescribed to her husband, William Bell. She and William separated in 1992 but, according to the PSR, “remain good friends.” J.A. 495. The probation officer did not consider these pills in calculating drug weight, however, because, although “agents suspect[e]d” the defendants were also selling pills prescribed to William, the government could not “prove this theory.” J.A. 491.
The Appellants objected to the drug weight calculation in the PSR on several grounds. Principally, Bell argued the government could not prove she distributed or intended to distribute all the pills prescribed to her because her medical records showed that she was taking a “significant amount” of the oxycodone that had been prescribed. J.A. 120. She also argued
Bell also urged the court to depart downward from the Guidelines and impose probation instead of a term of imprisonment because of her age and many health problems.
C.
At the sentencing hearing the government sought to establish the quantity of drugs attributable to the conspiracy in two ways: (1) through documentation of the pills prescribed to Bell, and (2) through the testimony of co-conspirators who purchased drugs from Bell and Gibson. The theory was that the prescriptions proved the conspiracy‘s supply, and the witnesses’ testimony demonstrated that Bell and Gibson sold to co-conspirators a sizeable portion of the pills prescribed to Bell.
The Appellants did not dispute that from January 2004 to August 2009 Bell was prescribed and received 2,430 20-mg oxycodone pills and 3,420 40-mg pills. They did dispute, however, whether they agreed to possess with intent to distribute or to distribute all of those pills. As stated above, their position was that the government could only prove they sold 888 40-mg pills during the course of the conspiracy, and therefore could only prove that they conspired to possess with intent to distribute that quantity.
Six co-conspirators testified at the sentencing hearing. Because the testimony of these witnesses figures prominently in the issues presented, we set forth the testimony in some detail.
The largest sales were to the first two witnesses, Kimberly Smith, a relative of Bell through marriage, and her fiancé Timothy Pace, who were each long-time oxycodone addicts. On direct examination, Smith testified that from July 2005 to January 2007 she received 30 to 60 40-mg oxycodone tablets from Bell twice a month. At first she was just buying pills for herself; after a “couple [of] months” she began selling some of the pills she acquired from Bell to others in order to make money to buy pills for herself. J.A. 325. On cross-examination, however, she admitted that before May 2006 she received 20-mg pills, not 40-mg pills, and that she had suppliers other than Bell, although she did not know their names. She admitted that sometimes Gibson was absent when she purchased pills from Bell.
Pace largely corroborated this testimony, though he put the twice-monthly range he and Kim received “to sell” from mid-2005 through 2006 at 30 to 50 40-mg pills. He also admitted that sometimes he and Smith did not buy from Bell but rather from other suppliers. When asked by the government whether he was “selling OxyContin with anybody else” or rather was “acting on [his] own” he replied, “No, it was me and my fiancée.” J.A. 346. When asked whether he and Kim would “sell pills together or ... split them up” he replied, “No, we was together.” J.A. 349. On cross-examination he also explained that,
The next two witnesses were a married couple, Joyce and Timothy Hopkins, also both long-time addicts. Joyce testified that in early 2007 she bought two oxycodone pills from Gibson, possibly continuing twice per month. Six to eight months later she was buying 5 to 10 40-mg pills and later 10 to 15 40-mg pills twice per month. At first she purchased pills from Gibson; in late 2007 she purchased pills from Bell. On cross-examination, she admitted to sometimes receiving 80-mg oxycodone pills from another supplier. She continued to buy pills until she was arrested in March 2009.
Timothy testified that he and Joyce did not begin buying oxycodone pills from Bell until “two and a half years ... or so” before the sentencing hearing, which would be the winter of 2007–2008, J.A. 384; this was inconsistent with Joyce‘s testimony that they first purchased from Bell in early 2007. His testimony as to the monthly amounts was that he and Joyce started buying no more than 10 40-mg pills and later increased to 10 to 15 40-mg pills, but apparently just once (not twice) per month. Although the government encouraged him to testify that he received 20 pills per month, he insisted it was “[t]en, 15, something like that.” J.A. 386. He also testified that some months he did not have money to buy any pills. J.A. 390. He stopped buying pills from the defendants in March 2009, when he was arrested. The testimony is unclear as to whether he and Joyce were buying together and thus were referring to the same pills.
The government‘s fifth witness, Leslie Clasby, testified that she bought oxycodone from Bell for four months, from October 2008 until sometime between January and March 2009. She would purchase up to 20 40-mg pills during a month but “[s]ometimes not that many.” J.A. 394, 397. When the district court asked her to clarify, she said that for four months or “possibly longer” she purchased up to 20 pills per month. J.A. 396. But on cross-examination she admitted that there were times Bell was not available and so she purchased from another supplier. She also could not recall whether Bell was available around Christmas 2008.
The government‘s sixth witness was Misty Parker, Gibson‘s daughter (and Bell‘s granddaughter) who was twenty-two years old at the time of sentencing and had lived in a group home or foster home beginning at age 14 because her mother was deemed unfit to supervise her. According to Parker, “just about everybody in my family has a drug problem.” J.A. 399. Beginning sometime in June or July 2008 she began receiving 10 to 15 pills twice a month from Bell. Although at first she resold the full amount, she soon “started using” and by August had been kicked out of Gibson‘s home because of her drug use. J.A. 403. She went to a rehabilitation program for a month during May to June 2009, but began using again after she was released. She continued to receive pills from Bell until Bell‘s arrest in July 2009. For an unspecified period of time she sold some of her pills to Leslie Clasby and possibly to Joyce Hopkins.
Parker described her grandmother as “a very sick woman,” someone who was like a “walking pharmacy” because of all the medications she needed for her heart problems, diabetes, blood pressure and other illnesses. J.A. 408. According to Parker, Bell was not addicted to drugs, but
The witnesses testified that many of their purchases of oxycodone were made at Gibson‘s home, in a trailer park in Jonesville in the Horton Subdivision of Lee County, where Bell would stay when she visited twice a month. But other sales were made elsewhere. For example, sometimes Smith and Bell would drive to Smith‘s customers’ homes. Smith would go up to the residence and find out how many pills the customer wanted and the customer would give Smith money for the pills. Smith would then return to the car and give some or all of the money to Bell, Bell would give Smith the pills, and Smith would deliver the pills to the customer.
Thus, to summarize the witnesses’ testimony as to the amounts distributed by Bell and Gibson: (1) No one testified to buying pills earlier than July 2005 or later than July 2009.3 (2) Pills received from Bell and Gibson before May 2006 were probably 20-mg pills; those received during or after May 2006 were probably 40-mg pills. (3) Smith and Pace received somewhere between 24 and 120 pills per month from July 2005 to January 2007 at the latest and likely were referring to the same pills (i.e., buying together). (4) Joyce Hopkins began buying two pills per month in early 2007 (though possibly late 2007), eventually increasing to 10 to 15 pills twice per month, until her arrest in March 2009. (5) Timothy Hopkins bought 10 to 15 pills per month from late 2007 or early 2008 until March 2009 and likely bought together with Joyce and thus was referring to the same pills. (6) Clasby bought up to 20 pills per month between January and March 2009. (7) Parker bought 10 to 15 pills twice a month from June or July 2008 until July 2009, interrupted by one month in a rehabilitation program. She sold some of her drugs to Clasby, and possibly some to Joyce Hopkins.
D.
After the witnesses’ testimony, counsel presented arguments on the proper Guidelines calculation. The defendants objected to the drug weight calculation, pointing to the evidence that Bell was consuming some of the pills: her positive urine screen, her frequent proper pill counts, and the letter from the St. Mary‘s pain center that her record there was “outstanding.” Because the evidence of Bell‘s supply (i.e., her prescriptions) was not an accurate indicator of the amount distributed (or, by implication, the amount Bell agreed to possess to distribute), they argued, the court had to rely solely on the testimony at sentencing, and this testimony only proved by a preponderance that the defendants conspired to possess with intent to distribute a total of 80 20-mg pills and 180 40-mg pills, even less than the 888 40-mg pills the defendants had previously conceded in their written submissions the government could prove. The marijuana equivalent of that number of pills would be 58.96 kg, with a base offense level of 20 and an advisory range of 41 to 51 months imprisonment.
Gibson further argued that, whatever the total drug weight attributable to Bell, that weight should be decreased for Gibson because the evidence showed that Gibson participated in the conspiracy only beginning in May 2008. Gibson provided documentary evidence that her lease for a
For its part, the government sought strenuously to undermine all of the Appellants’ contentions. First, the government dismissed the argument that Bell might have herself consumed some of the pills prescribed to her. “Even if Ms. Bell is taking some of the pills,” the government argued, “one motivation, [if] not the over reaching [sic] motivation, for getting these OxyContins was to distribute them.” J.A. 420. Moreover, the government contended, “even if a defendant is using or consuming drugs, that ... drug weight might be attributed to him, or her.” Id. Thus, the government argued, “the court should consider [Bell‘s] prescription records as an accurate or conservative drug weight amount in this case.” Id. Those records yield a conservative estimate, the government argued, because of the evidence that she was also selling pills prescribed to her husband, William. Second, the government argued that the full amount attributable to the conspiracy should be attributed to Gibson, not just drugs obtained and distributed in or after May 2008.
After considering the parties’ contentions, the district court stated its conclusions under the Guidelines. First, the court rejected the Appellants’ argument in support of a deduction from the prescribed amount for those drugs that Bell herself may have consumed, stating: “Where a drug conspiracy is involved, drugs obtained by the defendant for her personal use are properly included in the quantity of drugs that the defendant knew were distributed by the conspiracy.” J.A. 424. With respect to the witnesses’ testimony, the court “credit[ed] their testimony in regard to the quantity of drugs.” J.A. 425. The court then concluded that “the upper level of their testimony concerning quantity of drugs is the proper amount to accept by a preponderance of the evidence, and I do that because it is corroborated by the quantity of drugs prescribed to the defendant, Bell.” J.A. 425-26.
The district court did not then proceed to calculate the amounts prescribed to Bell. Nor did the court state the number of pills the government established by a preponderance of the evidence had been distributed or possessed with the intent to distribute. The court did acknowledge that “[t]here are obviously some discrepancies in the testimony of witnesses based on a lack of memory,” but concluded those discrepancies were “not material.” J.A. 427. Nevertheless, the court then stated, “I will partially sustain the objection of the defendant [Bell],” and concluded, “[B]ased on my acceptance of the testimony of these persons I find that the defendant Bell was responsible for distribution of at least 700 kilograms equivalency of marijuana.” J.A. 426.
The court also rejected Gibson‘s argument that only a portion of the total weight should be attributed to her. Although it “[m]ay well have been that Ms. Gibson was not present at all times when the defendant Bell distributed or caused to be distributed drugs, ... I believe it is a reasonable inference from the evidence that she had full knowledge of the scope of the conspiracy and quantity of drugs involved.” J.A. 427.
Based on its determinations (as described above), the district court concluded that the final Guidelines range for Bell was 97 to 121 months and the final Guidelines range for Gibson was 70 to 87 months.
E.
The Appellants then turned to their presentations under
The government argued for sentences at the high end of the Guideline ranges. Bell‘s counsel argued for a sentence of probation, especially given Bell‘s poor health. Gibson‘s counsel argued for a below-Guidelines sentence as well. The district court declined to depart downward, and imposed sentences of 120 months for Bell (on all counts, concurrent) and 72 months for Gibson (on all counts, concurrent). The Appellants have timely appealed.
II.
We review a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). We first ensure that the district court committed no significant procedural error. United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). Significant procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
III.
On appeal, Bell and Gibson argue the district court committed significant procedural errors by failing to properly calculate the Guidelines range, and/or failing to
A.
The Sentencing Guidelines include a Drug Quantity Table that provides base offense levels that correspond to certain quantities of enumerated controlled substances.
For sentencing purposes, the government must prove the drug quantity attributable to a particular defendant by a preponderance of the evidence. United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). When the drug quantity is not proven by actual seizures or comparable direct evidence, the government must present evidence from which the sentencing court may “approximate the quantity.”
For example, although we have approved reliance on direct or hearsay testimony of lay witnesses as to the quantities attributable to a defendant, see United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996), we have cautioned that when the approximation is based only upon “uncertain” witness estimates, district courts should sentence at the low end of the range to which the witnesses testified. United States v. Sampson, 140 F.3d 585, 592 (4th Cir. 1998); see also
Notably, however, apart from its Guidelines calculation, in every case, “[r]egardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record an ‘individualized assessment’ based on the particular facts of the case before it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 U.S. at 50). The explanation must be sufficient to allow for “meaningful appellate review,” id. (quoting Gall, 552 U.S. at 50), such that the appellate court need “not guess at the district court‘s rationale.” Id. at 329.
B.
The Drug Quantity and Drug Equivalency Tables include controlled substances of all types, including those designated on Schedules I, II, III, IV and V under the
The principal distinguishing characteristic between substances on Schedule I and those on the other Schedules is that non-Schedule I substances have at least one currently accepted medical use, and therefore can be possessed and sold legally in some circumstances. For obvious reasons, Congress has expressly stated that a person may not be prosecuted for simple possession of a non-Schedule I controlled substance when the person obtained the drug “pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice.”
That distinction potentially becomes critical in cases where a person is convicted of conspiracy to possess with intent to distribute a controlled substance. Where there is no evidence that any of the drugs obtained by members of a conspiracy were obtained or possessed legally, all reasonably foreseeable quantities possessed by conspiracy members with intent to distribute and within the scope of the criminal activity undertaken by a particular defendant may be considered “relevant conduct” attributable to that defendant. See, e.g., United States v. Iglesias, 535 F.3d 150, 160 (3d Cir. 2008) (holding that methamphetamine retained for personal use by the defendant, who had been convicted of conspiracy to distribute the substance and never argued any of the methamphetamine was lawfully obtained, was properly considered “contraband with which he was directly involved” and therefore “relevant conduct“); United States v. Asch, 207 F.3d 1238, 1243-44 (10th Cir. 2000) (same, although defendant was also convicted of conspiracy to possess with intent to distribute methamphetamine).
In such a case involving a valid prescription, if at sentencing the government wishes to use the total quantity prescribed to one or more conspiracy members as evidence of the quantity of “contraband ... within the scope of the [conspiracy to possess with intent to distribute],” it must also provide evidence, and the district court must make a finding, of something more—for example (1) that the conspiracy actually distributed a particular amount; (2) that the person who was prescribed the drug lawfully kept and consumed only a portion (or none) of the prescribed amount; (3) that the pills were obtained fraudulently and thus cannot be considered to have been lawfully obtained and possessed, see
We turn now to the facts in the case at bar. As stated above, the probation officer calculated the total amount of oxycodone prescribed to Bell from January 2004 to August 2009 as 187.8 grams, a Guidelines equivalent of 1,258.26 kilograms of marijuana, and attributed that full amount to the conspiracy. The district court did not go that far, however, instead attributing 104.5 grams of oxycodone, the Guidelines equivalent of 700 kilograms of marijuana, to the conspiracy and by extension to Bell and Gibson.6 But the district court‘s explanation for how it calculated that quantity is insufficient to allow for “meaningful appellate review,” Gall, 552 U.S. at 50, as we now explain.
The principal shortcoming lies in the district court‘s conclusion that even if a portion of the oxycodone prescribed to Bell was lawfully possessed and consumed by her, the entire amount prescribed is “properly included in the quantity of drugs” for purposes of calculating the Appellants’ sentences so long as “a drug conspiracy is involved.” As explained above, non-Schedule I substances that a conspiracy member obtains, possesses, and consumes pursuant to a valid prescription generally do not constitute “relevant conduct” for sentencing purposes.
Here, there is no dispute that Bell received her pills using a valid prescription issued to her by physicians at a single institution, the St. Mary‘s pain center, and7 there was more than a mere scintilla of evidence that Bell lawfully consumed some of the pills. As the government concedes, she passed occasional opiate testing and pill counts during her appointments, and her granddaughter Christy testified that she had seen Bell take oxycodone. To the extent Bell and her co-conspirators conspired to possess with intent to distribute or to distribute a particular quantity of her pills, Bell could be sentenced for that quantity, as could Gibson (or any other similarly-situated co-conspirator) to the extent the quantity was reasonably foreseeable and in furtherance of the jointly undertaken criminal activity. Similarly, to the extent Gibson herself possessed oxycodone, she could be sentenced for that full amount, because there is no suggestion that Gibson could lawfully possess any quantity of the drug. But absent a finding (adequately supported by reliable evidence) that the entire quantity prescribed to Bell was “within the scope of the criminal activity” she and her co-conspirators undertook, see
None of the above analysis is surprising because it is clear that the government and the district court recognized the need
The extent of the district court‘s explanation for its 700-kilogram-of-marijuana finding was the following. The court “credit[ed] [the witnesses‘] testimony in regard to the quantity of drugs” despite any “discrepancies” because to the extent there were discrepancies they were “not material.” The court then accepted “the upper level” of the amounts testified to because those amounts were “corroborated by” the quantity prescribed to Bell. In conclusion, but rather inexplicably, the court “partially sustain[ed]” the Appellants’ objection to the total drug quantity and found that Bell “was responsible for distribution of at least 700 kilograms equivalency of marijuana.”
There is no explanation in the record of any of several underlying factual findings, at least some of which would have been necessary to reach the 700 kilogram number, including: (1) the range of sales each witness testified to; (2) the time period during which each witness purchased oxycodone from the Appellants, bearing in mind that there was no testimony as to transactions at the front end or the tail end of the charged conspiracy, see supra n. 3; (3) the sum of the “upper limit[s]” and lower limits of each witness‘s testimony; (4) an approximation of the quantity of prescribed pills Bell herself consumed; and (5) whether (a) Bell and Gibson were also distributing pills prescribed to Bell‘s husband, (b) the pills Kim Smith and Tim Pace described were the same or different pills and whether their maximum per-month quantity was 40 or 60 or some other number, (c) the pills Joyce and Timothy Hopkins described were the same or different pills, and (d) Misty Parker re-sold some of the pills she bought to Leslie Clasby and/or Joyce Hopkins.8 In short, to support its finding that the
D.
Recognizing that the evidence plainly supports a finding that Bell consumed some of the pills and that the district court‘s explanation may have been inadequate, the government offers two final arguments. First, it argues that to be “legally obtained” prescription narcotics must be medically necessary, and because Bell sold most of her prescribed pills, the pills were not medically necessary and therefore were not legally obtained. But that argument proves too much. Initially, we can discern no good reason to craft a rule that any prescription drug that is sold illegally by the patient who obtains the prescription to another without a prescription is “medically unnecessary” to the patient as a matter of law. Second, even if we were to agree that a mere sale or transfer of a portion of the pills covered by a prescription renders that portion medically unnecessary, there is no good reason to say that all pills in the prescription are rendered medically unnecessary. So viewed in this case, although at least some, perhaps most, of the pills were medically unnecessary, that does not prove that all of them were medically unnecessary. Thus, we reject the government‘s contention.
We emphasize that none of this is to say, of course, that the district court should have disregarded Bell‘s prescription records in calculating drug quantity, or even that on remand the district court will be precluded from reaching the same total drug weight. Plainly, the amount Bell received was a reasonable starting point; and, a district court‘s rough approximation (as reflected here by the court‘s near 45% reduction in the PSR‘s recommended drug weight) will in many cases pass muster. But under the circumstances presented in this record, without a clear factual finding on how much of the prescription Bell herself consumed and/or some other factual basis reflecting the court‘s assessment of the co-conspirator testimony to show that 104.5 grams was the amount of oxycodone the conspiracy members unlawfully possessed with intent to distribute, there is an unacceptably high risk that the relevant total drug weight may have been inflated.
IV.
Gibson offers another, separate, challenge to her own sentence. Gibson argues that, whatever the total drug weight attributable to Bell, the district court erred in holding her responsible at sentencing for that full amount. She argues the evidence showed that she was involved in drug sales only beginning in or after May 2008, and therefore only pills sold between May 2008 and July 2009 should have been attributed to her.
As stated above, because the record does not adequately support the district court‘s calculation of the conspiracy‘s total drug quantity, we are vacating each Appellant‘s sentence. Thus, the district court will have the opportunity in any event to revisit the evidence of the extent and timing of Gibson‘s involvement in the conspiracy. We note, however, that the district court‘s rejection of Gibson‘s argument turned on its finding that Gibson “had full knowledge of the scope of the conspiracy and quantity of drugs involved.” J.A. 427. Gibson‘s “knowledge” of the scope of Bell‘s drug sales, however, is only part of the analysis; under the Guidelines the full amount of oxycodone sold or transferred by Bell is only attributable to Gibson for drug weight purposes if that full amount was reasonably foreseeable to Gibson and within the scope of the criminal activity that she jointly undertook with Bell. See
On remand the district court may well decide as a factual matter that Gibson‘s conduct satisfies the standard for attributing to her the full amount possessed by
V.
For the foregoing reasons, we vacate the judgments and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED
HAMILTON, Senior Circuit Judge, concurring in part and concurring in the judgment:
I concur in the court‘s opinion except Footnote 8. I write separately to make two observations. First, the court‘s opinion in this fact-intensive case is limited to a situation in which a defendant (here, Bell) obtained drugs and then entered into an agreement with codefendants (here, Gibson and others) to possess with the intent to distribute a portion of those drugs. For obvious reasons, the reasonably foreseeable quantities within the scope of the criminal activity the defendant and the downstream codefendants agreed to undertake do not involve the amount the defendant withheld for personal consumption. Second, I read nothing in the court‘s opinion that says a defendant is relieved of her obligation to produce some evidence concerning her personal consumption once the government establishes, by a preponderance of the evidence, that an otherwise valid prescription was part of the conduct of the conspiracy, with the government shouldering the ultimate burden of proof on the question of drug quantity. See, e.g., United States v. Asch, 207 F.3d 1238, 1246 (10th Cir. 2000) (“Although the defendant bears the burden of producing evidence of her intent to consume, we emphasize that the ultimate burden of proof on the quantity of drugs involved in the offense remains with the government at all times.“).
I am authorized to state that Judge Floyd joins in this opinion.