                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                              No. 04-4032
STEVE FULLILOVE,
                Defendant-Appellee.
                                        
           Appeal from the United States District Court
          for the District of South Carolina, at Columbia.
            Matthew J. Perry, Jr., Senior District Judge.
                             (CR-02-467)

                       Argued: October 1, 2004

                      Decided: November 2, 2004

    Before WILKINS, Chief Judge, TRAXLER, Circuit Judge,
       and Roger W. TITUS, United States District Judge
       for the District of Maryland, sitting by designation.



Vacated and remanded with instructions by published opinion. Chief
Judge Wilkins wrote the opinion, in which Judge Traxler and Judge
Titus joined.


                             COUNSEL

ARGUED: Jane Barrett Taylor, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellant. James Paul Rogers, Columbia, South Caro-
lina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States
Attorney, Columbia, South Carolina, for Appellant.
2                    UNITED STATES v. FULLILOVE
                             OPINION

WILKINS, Chief Judge:

   The United States appeals the sentence imposed on Steve Fullilove
following his conviction for possessing with the intent to distribute a
quantity of cocaine base, see 21 U.S.C.A. § 841(a)(1) (West 1999).
The Government contends that the district court erred in excluding
from its drug quantity determination the amount of cocaine base that
was removed from a package prior to its controlled delivery to Ful-
lilove. For the reasons set forth below, we vacate and remand for
resentencing.

                                  I.

   On May 14, 2002, a postal inspector in Columbia, South Carolina
intercepted a suspicious package addressed to Kevin Adams at 221
June Bug Court. Further investigation revealed that no "Kevin
Adams" lived at that address and that the package contained 26.71
grams of cocaine base.

   Law enforcement officers removed all except .37 gram of cocaine
base from the package and inserted a transmitting device designed to
signal a remote receiving unit if the package was opened. An officer
disguised as a mail carrier approached 221 June Bug Court with the
package; an exterminator who arrived at the same time as the officer
opened the door after receiving no response to repeated knocks. The
officer observed Fullilove, the only occupant of the apartment at the
time of the controlled delivery, sitting at a computer. Fullilove came
to the door and informed the officer that he was not "Kevin Adams"
but could get the package to him. Fullilove signed the name "Eric
Hall" on the delivery log. A minute or two later, the alarm on the
transmitter sounded and Fullilove was observed walking away from
a dumpster near the apartment. Fullilove was arrested and the pack-
age, which had indeed been opened, was recovered from the dump-
ster. A subsequent search of the apartment revealed, next to the
computer, a slip of paper bearing the same tracking number as the
package.
                      UNITED STATES v. FULLILOVE                       3
   After being advised of his rights, see Miranda v. Arizona, 384 U.S.
436, 473-74 (1966), Fullilove informed officers that he had come to
Columbia at the invitation of Oscar Jordan, the lessee of 221 June
Bug Court, for the purpose of selling drugs. Fullilove additionally
stated that he had known the package was coming and that it con-
tained cocaine base.

   Based on the foregoing evidence, a jury convicted Fullilove of pos-
sessing with the intent to distribute "a quantity of cocaine base." J.A.
22. At sentencing, the Government argued that Fullilove should be
held accountable for the entire 26.71 grams of cocaine base that were
originally in the package.* Rejecting this contention, the district court
sentenced Fullilove based only on the .37 gram that was actually in
the package at delivery. The court reasoned that because no evidence
connected Fullilove to the mailing of the package, there was no basis
on which to attribute the larger quantity to him.

   The drug quantity finding of the district court resulted in a guide-
line range of 27-33 months. The court sentenced Fullilove to 30
months imprisonment, and the Government now appeals.

                                   II.

                                   A.

   Before addressing the merits of the Government’s appeal, we first
must consider its claim regarding our standard of review. Ordinarily,
drug quantity determinations are reviewed for clear error. See United
States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004). The Government
contends, however, that the ruling of the district court rested on a mis-
interpretation of the guidelines and therefore that it is subject to de
novo review. See United States v. Schaal, 340 F.3d 196, 198 (4th Cir.
2003). We essentially agree with the Government. Because the facts
here are undisputed, the only question before us is one of guidelines
application, a question on which our standard of review approaches

  *Attribution of this quantity to Fullilove would have resulted in an
offense level of 28, which, combined with Fullilove’s Criminal History
Category of V, would have yielded a guideline range of 130-162 months.
4                    UNITED STATES v. FULLILOVE
de novo. See United States v. Gormley, 201 F.3d 290, 293-94 (4th Cir.
2000).

                                  B.

   Our resolution of this appeal is controlled by the relevant conduct
guideline, which instructs that the defendant is accountable for "all
acts and omissions committed, aided, abetted, counseled, com-
manded, induced, procured, or willfully caused." United States Sen-
tencing Guidelines Manual § 1B1.3(a)(1)(A) (2003). The
commentary explains that "[w]ith respect to offenses involving con-
traband (including controlled substances), the defendant is account-
able for all quantities of contraband with which he was directly
involved." Id. comment. (n.2). Therefore, the question before us is
whether Fullilove was "directly involved" with the approximately 27
grams of cocaine base originally shipped, or only with the .37 gram
that remained in the package upon delivery.

   Several of our sister circuits have addressed this same question. All
have concluded that a defendant may be held accountable under rele-
vant conduct principles for contraband removed from a package prior
to a controlled delivery. See United States v. Johnson, 357 F.3d 980,
985-87 (9th Cir. 2004) (holding that the defendant was responsible for
drugs removed from package prior to delivery because "[h]e intended
and attempted to acquire it all" and the removal of the drugs "did not
alter Johnson’s conduct for purposes of calculating a base offense
level"); United States v. Ukomadu, 236 F.3d 333, 340-41 (6th Cir.
2001) (holding that the defendant was responsible for drugs removed
from package because he intended to and did take possession of the
package, which would have contained the full quantity of drugs but
for the fortuitous intervention of law enforcement officials); United
States v. Franklin, 926 F.2d 734, 736-37 (8th Cir. 1991) (holding that
the defendant was responsible for cocaine removed from package
prior to controlled delivery because a contrary holding "would perpet-
uate irrational distinctions in sentencing" (internal quotation marks
omitted)); United States v. White, 888 F.2d 490, 498-500 (7th Cir.
1989) (holding that the defendant was responsible for amount origi-
nally in package because "[t]he nature and seriousness of [the defen-
dant’s] conduct [was] the same no matter how much of the cocaine
the DEA took out" of the package prior to delivery).
                     UNITED STATES v. FULLILOVE                       5
   In each of these cases, the court noted the fortuity of intervention
by law enforcement officials, stating that the fact of the intervention
did not alleviate the seriousness of the defendant’s conduct. See, e.g.,
Johnson, 357 F.3d at 987 (stating that fortuitous discovery and
removal of drugs from package "did not alter Johnson’s conduct for
purposes of calculating a base offense level"); White, 888 F.2d at 498
("To base the sentence on the larger amount is not to punish White
for a crime he didn’t commit; it is to use consistent criteria to choose
the sentence for the crime he did commit."). However, it is also worth
noting that two of the courts thought it important that the defendant
had not only received the package, but had also arranged for its deliv-
ery. See Johnson, 357 F.3d at 987 (observing that the defendant’s rel-
evant conduct included ordering the narcotics); White, 888 F.2d at
498 ("White’s ‘course of conduct’ was receiving a package of cocaine
base—presumably after ordering and paying for it."); cf. Franklin,
926 F.2d at 736-37 (relying on White but not discussing whether the
defendant had arranged delivery of the package containing drugs).

   We take particular note of Ukomadu, in which the district court
based the defendant’s offense level on the entire quantity of heroin
originally shipped rather than the quantity remaining in the package
at the time of delivery. See Ukomadu, 236 F.3d at 340. Nowhere in
its opinion affirming this ruling did the Sixth Circuit discuss whether
the defendant had any role in the shipment of the package; as far as
the opinion indicates, the only evidence was that the defendant
retrieved the package from a storeroom where it had been placed after
a coworker signed for it, see id. at 336. In affirming the defendant’s
sentence, the court reasoned that

    Defendant would clearly have received the entire 293 grams
    contained in the original package but for the fortuitous inter-
    vention of the customs officials. Defendant was personally
    involved as a participant who was the intended recipient of
    the package and who indeed did take delivery of the pack-
    age. Thus, he . . . is responsible for the entire quantity of
    heroin.

Id. at 341.

  We conclude that the district court erred in failing to attribute the
pre-delivery weight of the cocaine base to Fullilove. Our resolution
6                     UNITED STATES v. FULLILOVE
of this question would no doubt be easier if the record contained evi-
dence that Fullilove had some role in the shipment of the package
itself. Nevertheless, the undisputed facts are sufficient to establish
that Fullilove was "directly involved" with the full quantity of narcot-
ics. Fullilove came to Columbia a few days before the arrival of the
package for the express purpose of selling drugs. He knew the pack-
age was coming, and he knew that it contained cocaine base. More-
over, Fullilove’s own statements to police establish that he expected
the package to contain a quantity of cocaine base sufficient for distri-
bution, as opposed to personal use. Cf. United States v. Hayes, 971
F.2d 115, 117-18 (8th Cir. 1992) (remanding for further factual find-
ings regarding whether the defendant should be held accountable for
pre-delivery quantity of narcotics when the evidence indicated that
the defendant might have believed that the package contained only a
personal-use quantity of cocaine base). We agree with our sister cir-
cuits that under circumstances like these, the fortuity that the package
was intercepted by law enforcement officers should not reduce the
seriousness of Fullilove’s offense.

   This conclusion is supported by the commentary to the relevant
conduct guideline, which suggests that intervention of law enforce-
ment does not automatically absolve a defendant of liability for con-
trolled substances that he did not personally handle because of the
intervention. See U.S.S.G. § 1B1.3, comment. (n.2(a)(1)) (stating that
defendant convicted of helping unload a shipment of marijuana may
be held responsible for entire shipment even though law enforcement
intervened before the unloading was complete). By the same token,
the commentary makes clear that actual knowledge of the type or
quantity of contraband is not critical to the drug quantity determina-
tion. See id. ("[A] defendant who transports a suitcase knowing that
it contains a controlled substance . . . is accountable for the controlled
substance in the suitcase regardless of his knowledge or lack of
knowledge of the actual type or amount of that controlled sub-
stance.").

   Our decision is supported also by sound policy considerations. Law
enforcement officials remove most of the contraband from intercepted
packages in recognition of the risk that a controlled delivery may go
awry and the contraband may reach its intended market. A holding
that Fullilove, who clearly intended to obtain whatever quantity of
                     UNITED STATES v. FULLILOVE                      7
cocaine base was in the package, should not be held accountable for
the full amount could have the perverse effect of encouraging law
enforcement officers to take unacceptable risks for the sake of obtain-
ing a sentence that accurately reflects the gravity of the defendant’s
criminal conduct. We agree with the Seventh Circuit that

    [a] case such as this illustrates a function of § 1B1.3(a)(2).
    It would perpetuate irrational distinctions in sentencing to
    make the difference between 33 months (the maximum sen-
    tence for a level 18 offense) and 151 months (the minimum
    sentence for a level 34 offense) depend on the DEA’s deci-
    sion to drain most of the cocaine from the packages bound
    for White. If the DEA had added an extra 200 grams to the
    original 302, this would not bump White’s offense up in
    seriousness; why should the decision to remove cocaine
    reduce it? If investigatory agencies can secure higher sen-
    tences by allowing drugs to be delivered despite detection,
    they will be tempted to do this, creating a risk that larger
    flows will reach consumers if the "controlled delivery"
    becomes uncontrolled and the drugs disappear.

White, 888 F.2d at 498.

                                 III.

   For the reasons set forth above, we vacate the sentence imposed by
the district court and remand with instructions to resentence Fullilove
based upon the 26.71 grams of cocaine base in the package when it
was intercepted by the postal inspector.

              VACATED AND REMANDED WITH INSTRUCTIONS
