Chаrged with five counts, Jil Antonio Resinos pled guilty to one count of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to 120 months in prison, the mandаtory minimum based on the court’s drug-quantity calculation. He appealed, arguing that the court’s calculation improperly aggregated amounts of meth involved in counts dismissed pursuant to the plea agreement. Following the precedent of
United States v. Jenkins,
An investigation of Resinos began on June 7, 2009, when a confidential informant (Cl) contacted the Siloam Springs police, saying that he or she could purchase meth from Resinos. Resinos sold meth to the Cl in six controlled purchases:
• June 9: 3.28 grams of a mixture of meth.
• June 10: 9.43 grams of actual meth.
• June 19: 9.3 grams of actual meth.
• June 29: 1.3 grams of actual meth.
• July 7: 25.3 grams of actual meth.
• August 12: 13.8 grams of actual meth.
The indictment charged five counts of distribution of mеth for the sales on June 9, 10, 19, 29, and July 7. Count five charged Resinos with distribution on July 7. Resinos pled guilty only to count five; in exchange, the government dismissed the remaining counts.
Calculating the guideline range, the presentence investigation report (PSR) held Resinos accountable for more than 50 grams of actual meth by aggregating amounts from the dismissed counts as “relevant conduct.” See U.S.S.G. § lB1.3(a)(2) (relevant conduct is conduct that was “pаrt of the same course of conduct or common scheme or plan аs the offense of conviction.”). The PSR thus calculated a total offense level of 29 that, with a criminal history of Category I, produced a guideline range of 87 tо 108 months. The PSR determined, however, that the (same) aggregated quantity of meth used in cаlculating the offense level triggered a mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b)(1)(A)(viii).
The parties disputed whether the dismissed relevant conduct should be aggregated to trigger the mandatory minimum sentence. The district court applied § 841(b)(l)(A)(viii), sentencing Resinоs to the mandatory minimum of 120 months.
This court reviews de novo the district court’s interpretation and application of the sentencing guidelines and statutes, and its fact-findings for clear error.
Gall v. United States,
For a distribution “involving ... 50 grams or more of methamphetamine,” a defendant “shall be sentenced to a term of *888 imprisonment which may not be less than 10 years.” 21 U.S.C. § 841(b)(l)(A)(viii).
Resinos argues that in calculating the quantity of drugs “involv[ed]” in a violation of § 841(a), thе calculation is limited to the quantity involved in the count of conviction — which herе does not trigger the mandatory minimum under § 841 (b)(l)(A)(viii). He concludes that because his violation was one discrete act of distribution, the district court erred by aggregating quantities оf meth from his relevant conduct in applying the mandatory minimum.
In
Jenkins,
a panel of this cоurt held that in determining whether a mandatory minimum applied to a distribution offense, the distriсt court can aggregate drug quantities derived from relevant conduct.
Jenkins,
This court overrules
Jenkins.
The only drug quantities that may trigger a mandatory minimum sentence for a discrete violation of § 841(a) are those involved in the count of conviction.
1
This court thus agrees with the other circuits that have addressed this issue.
See United States v. Darmand,
Resinos’s convicted violation of § 841(a) involved 25.3 grams of actual meth, below the 50-gram threshold of § 841(b) (1) (A) (viii). The distriсt court thus erred in ruling that it could not sentence Resinos below the 120-month mandatory minimum sentence. This error is not harmless.
See United States v. Walker,
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This court vacates Resinos’s sentence and rеmands for resentencing consistent with this opinion.
Notes
. In some cases, such as where the count of conviction includes a conspiracy to violate § 841(a), a distriсt court may aggregate amounts attributable to the defendant over a long рeriod of time.
See, e.g., United States v. Smith,