     Case: 14-51202      Document: 00513184318         Page: 1    Date Filed: 09/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-51202
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 8, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CONNOR PHILLIP KOSS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:14-CR-44-3


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Connor Phillip Koss pleaded guilty to one count of conspiracy to possess
with the intent to distribute in excess of 50 kilograms of marijuana and one
count of aiding and abetting possession with the intent to distribute in excess
of 50 kilograms of marijuana. He was sentenced to a within-guidelines prison
term of 121 months on each count, to be served concurrently. On appeal, he
argues that the district court erred when it calculated his base offense level,


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-51202

because only the portion of the marijuana butter which was pure
tetrahydrocannabinol (THC), not the weight of the entire substance, should
have been counted. As Koss raised this objection below, we review the district
court’s calculation of the quantity of drugs involved in the offense for clear,
rather than plain, error. United States v. Betancourt, 422 F.3d 240, 246 (5th
Cir. 2005).
      Although the Guidelines do not include specific guidance for marijuana
butter, neither marijuana nor THC is one of the controlled substances for
which the Guidelines state that the relevant weight is that of the controlled
substance itself, and not the entire mixture, substance, pill, capsule, or carrier
medium. U.S.S.G. § 2D1.1(c), Note to Drug Quantity Table (B), (G). And
though mixture or a substance “does not include materials that must be
separated from the controlled substance before the controlled substance can be
used,” § 2D1.1 comment. (n.1), the purpose of putting the THC in butter form
is to make it more user friendly. Indeed, Koss cites no authority holding that
only the pure THC should count in the weight calculation. The district court
thus did not clearly err in calculating the drug quantity level. See Betancourt,
422 F.3d at 246.
      In its brief, the Government raised a second issue in Koss’s favor:
whether the district court erred when sentencing Koss to 121 months because
the amount of marijuana he was held personally accountable for was less than
the 50 kilograms of marijuana charged in the indictment to which he pleaded
guilty. That lower amount, if the appropriate measure for assessing the
statutory drug quantity element, would result in a five-year statutory
maximum. See 21 U.S.C. § 841(b)(1)(D). Koss adopted this argument in his
reply brief. Although we ordinarily do not review issues raised for the first
time in a reply brief, this general rule is viewed differently when, “a new issue



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                                  No. 14-51202

is raised in the appellee’s brief and the appellant responds in his reply brief.”
United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010) (internal
quotation marks and citation omitted); accord United States v. Ramirez, 557
F.3d 200, 203 (5th Cir. 2009). We thus exercise our discretion to consider the
issue.
         Because the issue was not raised below, review is for plain error. To
demonstrate plain error, Koss must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion
to correct the error but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. See id.
         Koss cannot meet this standard. Our cases reach different conclusions
on whether a defendant is subject to a statutory minimum sentence triggered
by drug quantity when the relevant conduct attributed to the defendant was
less than the quantity of drugs for which the defendant was convicted.
Compare United States v. Morgan, 292 F.3d 460, 462-65 (5th Cir. 2002), United
States v. Randall, 595 F. App’x 454, 455-56 (5th Cir. 2015) with United States
v. Guajardo, 391 F. App’x 384, 385-86 (5th Cir. 2010), United States v.
Gurrusquieta, 54 F. App’x 592, 2002 WL 31730264 (5th Cir. 2002). But the
cited cases finding that the Guidelines-based individual assessment rather
than the conspiracy-wide drug quantity govern the mandatory minimum
predated Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013), in which the
Supreme Court changed course and held that drug quantity establishing a
minimum is an element of the offense and not merely a sentencing
enhancement. See id. at 2163 (overruling Harris v. United States, 536 U.S.
545 (2002)).




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                                 No. 14-51202

      The question in this case is whether drug quantity for purposes of the
statutory maximum is based on the overall drug quantity involved in the
offense of conviction or the amount individually attributed to the defendant
under the Guidelines. The law is less uncertain in the context of maximums
than it is for minimums because drug quantity has been considered an element
of the offense since Apprendi v. New Jersey, 530 U.S. 466 (2000). In the
aftermath of that decision, we explained that “the government need only allege
and prove to the jury the bare facts necessary to increase the statutory
sentencing maximum for the conspiracy as a whole.” United States v. Turner,
319 F.3d 716, 722 (5th Cir. 2003) (quoting Derman v. United States, 298 F.3d
34, 42-43 (1st. Cir. 2002) (emphasis in original)); United States v. Akins, 746
F.3d 590, 611-12 (5th Cir. 2014) (“[O]nce the jury has determined that the
conspiracy involved a type of quantity of drugs sufficient to justify a sentence
above the default statutory maximum and has found a particular defendant
guilty of participation in the conspiracy, the judge lawfully may determine the
drug quantity attributable to that defendant and sentence him accordingly.”
(quoting Turner, 319 F.3d at 722). The Fifth Circuit pattern jury instructions
reflect this understanding: “Fourth: That the overall scope of the conspiracy
involved at least ________________ (describe quantity) of _______________
(name controlled substance).” Fifth Circuit Pattern Jury Instruction § 2.9
(emphasis added).
      In this case that did not go to trial, what thus matters for purposes of the
statutory maximums is the offenses to which Koss pleaded guilty.             The
conspiracy offense involved 50 kilograms or more of marijuana as did the
substantive offense, for which he could be liable under Pinkerton v. United
States, 328 U.S. 640 (1946) even if not individually involved in dealing that
quantity of drugs.



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                             No. 14-51202

     Koss therefore has not demonstrated plain error on this issue.      See
Puckett, 556 U.S. at 135. The judgment is AFFIRMED.




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