                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2001

United States v. Pressler
Precedential or Non-Precedential:

Docket 00-1824




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Filed July 2, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-1824 and 00-2588

UNITED STATES OF AMERICA

v.

DANIEL E. PRESSLER, Appellant in No. 00-1824

UNITED STATES OF AMERICA

v.

SCOTT SHREFFLER, Appellant in No. 00-2588

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Crim. No. 99-cr-00133-7 and 00133-8)
District Judge: Honorable William W. Caldwell

Argued: March 8, 2001

Before: BECKER, Chief Judge, McKEE and
STAPLETON, Circuit Judges.

(Filed July 2, 2001)

       JERRY A. PHILPOTT, ESQUIRE
        (ARGUED)
       P.O. Box 116, 227 No. High St.
       Duncannon, PA 17020

       Counsel for Appellant
       Daniel Pressler
       ANDREW J. OSTROWSKI, ESQUIRE
        (ARGUED)
       2080 Linglestown Road, Suite 201
       Harrisburg, PA 17110

       Counsel for Appellant
       Scott Shreffler

       DAVID M. BARASCH, ESQUIRE
       United States Attorney
       THEODORE B. SMITH, III (ARGUED)
       Assistant United States Attorney
       228 Walnut Street
       Harrisburg, PA 17108

       Counsel for Appellee
       United States of America

OPINION OF THE COURT

BECKER, Chief Judge.

A jury in the District Court for the Middle District of
Pennsylvania convicted Daniel Pressler and Scott Shreffler
of conspiracy to distribute heroin. While Pr essler appeals
only his sentence, Shreffler challenges both his conviction
and sentence. Shreffler's appeal requir es us to analyze the
quality and quantity of evidence necessary to establish a
conspiracy among individuals engaged in drug activity who
are loosely associated.

Shreffler submits that the evidence was insufficient to
convict him of conspiring to distribute heroin. To make out
a conspiracy charge, the Government must show: (1) a
unity of purpose between the alleged conspirators; (2) an
intent to achieve a common goal; and (3) an agr eement to
work together toward that goal. The final factor--an
agreement between the defendant and some other person--
is the essence of the offense, and ther e is no lesser
standard for proving an agreement in drug cases. Although
this and other courts have spoken of "factors" that tend to
show the existence of a conspiracy, it is mor e accurate to
say that the presence of certain facts often pr ovides

                                  2
circumstantial evidence of the underlying agr eement that is
itself necessary to make out a conspiracy case.

The evidence here showed that Shreffler obtained and
distributed a large amount of heroin. The Government
demonstrated that the main person from whom Shr effler
obtained his heroin, Pedro "Pete" Caban, also distributed
the drug to many others, and that some of the people to
whom Caban sold heroin had been referr ed to him by
Shreffler. The evidence also established that many of the
people to whom Shreffler and Caban pr ovided heroin sold
the drug themselves, including a man with whom Shr effler
lived for several months. And the Government proved that
Shreffler was aware of all of the above facts. But there was
simply no evidence that Shreffler ever agr eed to work with
either his seller or his buyers to achieve a common goal or
advance a common interest.

The Government contends that the evidence her e was
sufficient to establish a conspiracy under this Court's
holding in United States v. Gibbs, 190 F .3d 188 (3d Cir.
1999). What this contention misses is that in Gibbs there
was no dispute that a drug conspiracy existed--the only
issue was whether the defendant had joined it. Her e, in
contrast, the question is whether a conspiracy existed at
all. As a result, much of the discussion in Gibbs is simply
inapposite. Because the Government never established the
existence of an agreement between Shreffler and someone
else, we will vacate his conviction on the gr ounds that the
evidence was insufficient to support it. W e will, however,
affirm the judgment of sentence as to Pr essler.

I.

Situated in rural Mifflin County in central Pennsylvania,
Lewistown is home to less than 30,000 inhabitants. In the
latter half of the 1990s, public officials noticed a disturbing
rise in heroin use among students enrolled in the
Lewistown school system. Local police deemed the pr oblem
so severe that they requested federal assistance. Federal
investigators determined that the heroin was coming from
Philadelphia, and that it was being imported by Lewistown
residents who would drive to Philadelphia to purchase
heroin and then return to Lewistown to use and sell it.

                               3
On May 26, 1999, a grand jury indicted Pressler ,
Shreffler, and seven others for conspiring to violate the
federal drug laws in violation of 21 U.S.C. S 846. Section (b)
of Count One of the indictment charged the defendants
with conspiring to "[i]llegally possess with intent to
distribute and illegally distribute, in violation of 21 U.S.C.
S 841(a)(1), HEROIN, a Schedule I contr olled substance
while over the age of 18 years to individuals under the age
of 21 years, in violation of 21 U.S.C. S 859(a)."

Although their co-defendants pled guilty, Pr essler and
Shreffler exercised their rights to a jury trial. The jury
heard testimony from four of Pressler's and Shreffler's
former co-defendants, as well as eight other witnesses. We
provide the details of this testimony, infra at Part II(B), in
the context of discussing Shreffler's claim that the evidence
was insufficient to support his conviction. The court
instructed the jury that they were to decide whether the
defendants had "engaged in a conspiracy to distribute
heroin," but, consistent with prevailing law at the time, did
not ask the jury to determine the quantity of heroin that
the defendants had conspired to distribute. The jury found
Pressler and Shreffler guilty, and, via a special verdict form,
also found that "the Government ha[d] proven beyond a
reasonable doubt that [Pressler and Shr effler], being 18
years or older, conspired to distribute heroin to persons
under 21 years old."

The Probation Officer prepared Pr esentence Investigation
Reports (PSIs) for both Pressler and Shr effler. Pressler
lodged two objections, one of which is relevant here. In P 14
of Pressler's PSI, the Probation Officer relayed the contents
of a statement in which Craig Bedleyon told investigators
that he had been hospitalized after overdosing on heroin
obtained from Pressler. The Pr obation Officer relied on
Bedleyon's statement in determining that Pr essler was
eligible for an enhanced Offense Level of 38 pursuant to
U.S.S.G. S 2D1.1(a)(2), which applies "if the defendant is
convicted under 21 U.S.C. S 841(b)(1)(A), (b)(1)(B), or
(b)(1)(C) . . . and the offense of conviction establishes that
death or serious bodily injury resulted fr om the use of the
substance." Pressler objected, claiming that his sentence
could not be enhanced based on Bedleyon's over dose

                               4
because it had not been charged in the indictment and
proved beyond a reasonable doubt.

The District Court held sentencing hearings for Pr essler
on May 16 and June 2, 2000. At the close of the hearings,
the court found that the Government had pr oved beyond a
reasonable doubt that Pressler provided the heroin upon
which Bedleyon had overdosed, and opined that such
findings were the province of the court rather than the jury.
The court therefore determined that Pressler was eligible for
the death or serious bodily injury enhancement, which set
his base Offense Level at 38. Other enhancements raised
Pressler's Offense Level to 43, and his Criminal History
Category was determined to be IV. This combination
ordinarily would have resulted in a mandatory life sentence,
see U.S.S.G. Ch. 5 Pt. A, but the District Court decided to
depart downward, noting that it found Pr essler to be "less
culpable" than Shreffler. Stating that it had "a duty to avoid
unwarranted sentencing disparities" and characterizing
Pressler's case as "present[ing] a circumstance outside of
the heartland," the District Court sentenced Pr essler to
serve 336 months in prison.

The District Court held sentencing hearings concer ning
Shreffler on June 16 and July 14, 2000, and made
extensive factual findings on August 9, 2000. Employing a
preponderance of the evidence standard, the court found
that Shreffler had provided heroin to both Joseph Stoner
and Scott Knouse, that Stoner and Knouse had over dosed
on heroin provided by Shreffler , and that each had suffered
serious bodily injury as a result. The court also determined
that Shreffler had distributed between 69 and 113 grams of
heroin. In response to these findings, the Probation Officer
revised Shreffler's PSI and concluded that he was eligible
for an enhanced Offense Level of 38 pursuant to U.S.S.G.
S 2D1.1(a)(2). Two other enhancements gave Shr effler an
Offense Level of 42, and this, in conjunction with a
Criminal History Category of V, left Shr effler with a
sentencing range of 360 months to life. See U.S.S.G. Ch. 5
Pt. A. On August 23, 2000, the District Court sentenced

                               5
Shreffler to 360 months imprisonment. Both Shreffler and
Pressler filed timely appeals.1

II.

Shreffler's primary claim is that the evidence was
insufficient to convict him of conspiring to distribute
heroin. In so arguing, he takes up "a very heavy burden."
United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).
The Government needed to show only that Shr effler
conspired with "someone--anyone." United States v. Obialo,
23 F.3d 69, 73 (3d Cir. 1994). Mor eover, because Shreffler
is appealing from a jury verdict against him, "[w]e must
view the evidence in the light most favorable to the
government and must sustain [the] jury's verdict if `a
reasonable jury believing the government's evidence could
find beyond a reasonable doubt that the gover nment proved
all the elements of the offense.' " United States v. Rosario,
118 F.3d 160, 163 (3d Cir. 1997) (quoting United States v.
Salmon, 944 F.2d 1106, 1113 (3d Cir . 1991)). The elements
of a charge of conspiracy are: (1) "a unity of purpose
between the alleged conspirators;" (2) "an intent to achieve
a common goal;" and (3) "an agreement to work together
toward that goal." United States v. Gibbs, 190 F.3d 188,
197 (3d Cir. 1999).

A.

A perpetual problem plagues the law of conspiracy: There
is no conspiracy unless the defendant agrees to work with
someone else, but rarely is there dir ect evidence of a
qualifying agreement. Consequently, the of fense is usually
provable only through circumstantial evidence. Many
courts (including this one) have spoken often of"factors"
that tend to show the existence of a conspiracy. These
"factors" are not direct proof that a conspiracy exists;
rather, their presence serves as cir cumstantial evidence of
the underlying agreement that is itself necessary to sustain
_________________________________________________________________

1. The District Court had jurisdiction under 18 U.S.C. S 3231. We have
appellate jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C.
S 3742(a).

                               6
a conspiracy charge. See United States v. Kapp, 781 F.2d
1008, 1010 (3d Cir. 1986) (stating that the existence of a
conspiracy "can be `inferred from evidence of related facts
and circumstances from which it appears as a reasonable
and logical inference, that the activities of the participants
. . . could not have been carried on except as the r esult of
a preconceived scheme or common understanding' "
(quoting United States v. Ellis, 595 F .3d 154, 160 (3d Cir.
1979))).

The challenge we have described is especially acute when
it comes to drug conspiracies, which have comprised a
large portion of the criminal dockets of federal courts in
recent years. In the typical drug conspiracy, there is a
primary dealer who will often have a high-level confederate
or, at least, one or more mid-level confederates. The
primary dealer will sell drugs personally and/or thr ough
these confederates. These transactions may consist of small
or moderately sized sales to end users, or of lar ge sales to
individuals who then resell the drugs to those not under
the direct or indirect control of the primary dealer.
Accordingly, in many drug cases, the principal question is
whether the people who buy drugs from the primary dealer
or from his or her confederates have joined the underlying
conspiracy.

B.

There is no question that Shreffler distributed a sizeable
amount of heroin. Evidence at trial established at least
nineteen named people to whom Shreffler pr ovided the
drug, most of them on numerous occasions and several of
them more than 30 times. Most of Shreffler's buyers were
young--in fact, he sold drugs to several people who were
sixteen years old or younger. Shreffler distributed heroin
while at private homes, on public streets, and in public
parks. He often insisted that people to whom he pr ovided
heroin consume it in front of him, so as to obviate the
possibility that they might turn the drugs over to the police.
Shreffler personally introduced multiple people to heroin,
taught at least two people how to inject themselves, and at
least twice provided heroin to people immediately after they
had been discharged from drug rehabilitation programs.

                               7
Shreffler obtained his heroin in Philadelphia. Numerous
people accompanied him to buy heroin, and Shr effler made
the trip in cars belonging to at least three different
individuals.2 In Philadelphia, Shreffler would sometimes
buy heroin from street dealers, though he would most often
buy from Pedro "Pete" Caban. Caban sold heroin out of his
house, and Government witnesses testified that they
observed Caban sell to a large number of people. Shreffler
bragged to brothers Anthony and Aaron Forshey (who both
accompanied Shreffler to Philadelphia to buy heroin on
several occasions) that he had "got[ten] Pete off the street"
by purchasing so much heroin from him. Shreffler told
Aaron Forshey that Caban provided "a safe way to buy
heroin," because buying heroin fr om Caban at his house
obviated the need to purchase heroin fr om street dealers.
Caban sold heroin in prepackaged bundles that were
sometimes stamped with the words "Banshee,"
"Competition," and "Grenades."

Most of the people to whom Shreffler distributed heroin
had other sources of supply (this source was often
Pressler), and many of them distributed the drug as well.
Many of the individuals with whom Shreffler traveled to
Philadelphia to buy heroin also went without him, and
some of them purchased heroin from Pedro Caban on those
trips.

Numerous witnesses testified that her oin (including that
sold by Caban and Shreffler) is packaged in a standardized
form and is distributed for a set price. Individual doses are
contained in plastic "bags," and between 8 and 13 "bags"
_________________________________________________________________

2. At oral argument, the Government contended that Shreffler gave
people heroin in exchange for driving him to Philadelphia, and
specifically referenced the testimony of James Walker. Walker testified
that he had driven Shreffler to Philadelphia on 5 or 6 occasions, and
stated that Pressler had given him heroin in exchange for a ride to
Philadelphia, but never said the same thing about Shreffler. Though we
must make all reasonable inferences in favor of the Government, "[t]he
law . . . requires that `the infer ences drawn . . . have a logical and
convincing connection to the facts established.' " United States v.
Applewaite, 195 F.3d 679, 684 (3d Cir . 1999) (quoting United States v.
Casper, 956 F.2d 416, 422 (3d Cir . 1992)). We may not "infer" the
existence of evidence that was simply never pr offered.

                               8
are placed in a larger plastic bag to cr eate a "bundle."
During the relevant time period, heroin sold for $10 per bag
in Philadelphia and for $20 per bag in Lewistown, though
a few witnesses testified that they were sometimes given
volume discounts. Many of the Government's witnesses
described seeing Shreffler in possession of multiple bundles
of heroin.

C.

We turn to the question whether the evidence was
sufficient to convict Shreffler for conspiracy to violate the
federal drug laws. Though Shreffler bought a large amount
of heroin from Caban, and sold her oin to a large number of
people, " `a conspiracy requir es an agreement to commit
some other crime beyond the crime constituted by the
agreement itself.' " United States v. Gibbs, 190 F.3d 188,
197 (3d Cir. 1999) (quoting United States v. Kozinski, 16
F.3d 795, 808 (7th Cir. 1994)). In Shr effler's view, the
evidence here simply does not show such an agr eement.

1.

In both its Opening and Supplemental Briefs, the
Government assumes that this case is gover ned by United
States v. Gibbs, 190 F.3d 188 (3d Cir . 1999), and asserts
that Gibbs mandates that we uphold Shr effler's conviction.
The Government's argument, however , misses a critical
distinction between this case and Gibbs. In Gibbs there was
no question that a cocaine distribution ring headed by
Terrence Gibbs and Darryl Coleman existed; the dispute
was whether Antjuan Sydnor (who had purchased large
amounts of heroin from Gibbs) had agr eed to join the
conspiracy. See id. at 195, 200. Her e, in contrast, the
question is whether there was a conspiracy between any of
these individuals at all. We do not suggest that the
Government's burden of proof is higher where the existence
of an underlying group is contested. Instead, we emphasize
that certain types of circumstantial evidence become
substantially more probative if it can be established that a
conspiracy existed and the only remaining question is
whether the defendant was a part of it.

                               9
To see why, imagine a situation where the defendant is a
street-level drug dealer. If it is shown that an organized
gang controls drug distribution in the defendant's
neighborhood and that the gang has divided the
neighborhood into zones in which only a single dealer may
operate, then the fact that the defendant consistently sells
his or her drugs only with certain geographical parameters
would provide evidence that the defendant both knew of the
existence of the conspiracy and was a participant in it. But
were there no evidence of a larger conspiracy to control
drug distribution, then the fact that the defendant did all of
his or her sales in a given area would be essentially
irrelevant to the question whether the defendant was the
member of a conspiracy.3

As a result, much of the language from Gibbs upon
which the Government relies is inapposite. For example,
Gibbs acknowledged that " `even an occasional supplier (and
by implication an occasional buyer for redistribution) can
be shown to be a member of the conspiracy by evidence,
direct or inferential, of knowledge that she or he was part
of a larger operation.' " Id. at 198 (quoting United States v.
Price, 13 F.3d 711, 728 (3d Cir. 1994) and citing United
States v. Theodoropoulos, 866 F.2d 587, 594 (3d Cir. 1989))
(emphasis added). Such a precept can per form analytic
work if it is clear that a drug conspiracy existed and the
only question is whether the defendant was a part of it, but
it is singularly unhelpful where the question is whether a
_________________________________________________________________

3. Illustrative of this point is United States v. Price, 13 F.3d 711 (3d
Cir.
1994), where the evidence established the existence of a criminal
organization known as the Junior Black Mafia ("JBM"). See id. at 716. As
relevant here, defendant Anthony Long contended that the evidence was
insufficient to convict him of conspiring to distribute cocaine and
heroin,
arguing that it showed only that he was an"independent drug dealer
who associated with members of the JBM." Id. at 731. In explaining why
we disagreed, we noted, inter alia, that Long had two significant social
events (a wedding and a funeral) "at which many, although not
necessarily all, JBM members gathered." Id. Standing alone, that Long
attended a given wedding or funeral would do nothing to show that he
was a member of a criminal conspiracy. But once it was shown that the
funeral and the wedding were significant social events for the members
of the JBM, the fact that Long was present on those occasions provided
circumstantial evidence that he was a member of that organization.

                               10
"larger operation" was present at all. Because here there
was no independent evidence of an overarching conspiracy,
that Shreffler knew that his seller sold drugs to other
people or that some of his buyers did likewise pr ovides
scant support for the proposition that any of these
individuals agreed to cooperate with one another.

This basic difference also explains why one of the factors
about which we spoke in Gibbs does not translate well to
the situation at bar. Gibbs stated that "the length of
affiliation between the defendant and the conspiracy" was
relevant to determining whether the defendant agreed to
join it. Id. at 199 (emphasis added). W e explained that this
factor is relevant because "when a defendant drug buyer
has repeated, familiar dealings with members of a
conspiracy, that buyer probably comprehends fully the
nature of the group with whom he [or she] is dealing, is
more likely to depend heavily on the conspiracy as the sole
source of his [or her] drugs, and is mor e likely to perform
drug-related acts for conspiracy members in an effort to
maintain his [or her] connection to them." Id. at 199. This
factor (and our explanation for it) assumes the existence of
an underlying conspiracy; after all, it makes little sense to
talk about the defendant's comprehension of the nature of
the "group" with whom he or she is dealing unless it has
already been shown that there is an underlying group. The
lack of an underlying (or overarching) conspiracy is the
Government's problem here.

Lastly, and contrary to our admonitions, the Gover nment
seeks to use one of the Gibbs factors as dir ect (and, indeed,
dispositive) evidence of the existence of a conspiracy, rather
than as circumstantial evidence of the underlying
agreement necessary to create a conspiracy in the first
place. The Government claims that many of Shr effler's
buyers "were not simple purchasers of drugs from Shreffler;
they knew that Shreffler obtained his her oin from `Pete'
because [they] accompanied Shreffler on[trips to] purchase
[ heroin] from `Pete' in Philadelphia on more than one
occasion, and they knew about one another and about
Shreffler's distribution to other persons. Under the holding
of Gibbs then, they were conspirators with Shreffler in the
distribution of heroin . . . and he was a conspirator with
each of them."

                               11
In upholding the conviction in Gibbs, we str essed that
Sydnor (the buyer) had been aware that Gibbs (the seller,
who was unquestionably a member of a drug conspiracy)
sold drugs to people other than himself, and emphasized
that Gibbs had known that Sydnor resold drugs that he
bought from Gibbs to other people. See id. at 201. That
Sydnor knew that Gibbs sold drugs to many other people
was circumstantial evidence that Sydnor knew that Gibbs
was part of a larger distribution ring, and the fact that
Gibbs was aware that Sydnor resold the drugs that he got
from Gibbs was circumstantial evidence that Sydnor was a
part of that ring. See id. at 201. But the mere fact that a
defendant comprehends that a person from whom he or she
buys drugs or to whom he or she sells drugs also sells
drugs to others is not itself sufficient pr oof that the
defendant and the other person are conspirators. Except for
those who grow, harvest, or process contr olled substances
themselves, all users and dealers get their drugs fr om
someone else. Importantly, in Gibbs we did not hold that
such evidence standing alone proved that Sydnor had
joined the Gibbs/Coleman conspiracy; instead, we pointed
to numerous other significant pieces of evidence, which we
set forth in the margin,4 that bore upon that question, and
ultimately held that all of the "evidence [was] sufficient to
support the conclusion that Sydnor intended to join the
[Gibbs/Coleman] conspiracy and shared the conspiracy's
goal of distributing cocaine for profit." Id. at 202-03. The
fact that several of Shreffler's buyers knew that Shreffler
often got his drugs from Caban and that they knew about
each other is not enough to establish an agr eement among
them to distribute heroin. Having established that Gibbs is
not dispositive here, we now turn to the Government's
arguments as to why the evidence was sufficient to support
_________________________________________________________________

4. The Government had surreptitiously recorded telephone conversations
between Sydnor, Gibbs, and another man. They revealed that: (1) Gibbs
had converted powder cocaine into crack for Sydnor; (2) Sydnor had
purchased a large amount of drugs fr om Gibbs; (3) Sydnor had offered
to provide physical protection for Gibbs; (4) Sydnor had solicited advice
from Gibbs about the commercial aspects of the drug trade.; (5) Gibbs
had sold Sydnor drugs on credit; and (6) Sydnor and Gibbs had
conducted their business in code. See Gibbs, 190 F.3d at 200-02.

                               12
the conclusion that Shreffler conspir ed with particular
individuals.

2.

We begin with Caban and the Forsheys, all of whom were
named in the indictment. Both Aaron and Anthony Forshey
traveled with Shreffler to Philadelphia numer ous times to
acquire heroin, but both also often went without him. The
Forsheys originally purchased heroin fr om street dealers,
but Shreffler eventually introduced them to Caban,
explaining that Caban offered a "safer" way to purchase the
drug. Shreffler bragged to the Forsheys that his purchases
from Caban were so sizeable that they wer e responsible for
"taking [Pete] off the street" and allowing Caban to sell
heroin directly out of his house.

This evidence, says the Government, "was sufficient, at
the very least, to establish an agreement between Shreffler
and `Pete' to distribute heroin to the Forsheys." We
disagree. Had Shreffler promised to steer business Caban's
way in exchange for a discount on his own pur chases or for
a share of Caban's profits, the two would unquestionably
have qualified as co-conspirators. Unfortunately for the
Government, however, there was simply no evidence of
such an agreement. Instead, all that the evidence showed
was that Shreffler introduced the Forsheys to another,
superior source of supply from which Shr effler himself had
purchased a large amount of heroin.

What was lacking here can be illustrated by use of
analogy. Imagine the owners of two convenience stor es, X
and Y. Both originally obtain soda for r esale from various,
unaffiliated wholesalers, but X discovers that wholesaler Z
is easier to deal with. X then begins to buy all of her soda
from Z (a sizeable amount) and infor ms Y that Z provides a
superior source of supply. Y then begins to purchase a
great deal of soda from Z as well. Just as this evidence,
standing alone, would be insufficient to pr ove an agreement
between X and Z to distribute soda to Y, the evidence in
this case was not enough to support a conclusion that
Shreffler and Caban conspired to distribute heroin to the
Forsheys. It is common for people to tell their friends about

                               13
a good store or restaurant. Though the Government proved
that Shreffler was a very good customer to Caban, that he
had recommended Caban to others, and that Caban
benefitted from Shreffler's patr onage, it did not show that
Shreffler and Caban ever agreed to work together on
anything.

Likewise, we conclude that there was insufficient
evidence to support a finding that Shreffler conspired with
the Forsheys. The Government notes that "the evidence at
trial established that the heroin [that Shr effler and the
Forsheys] obtained from `Pete' was not solely for their own
use but was sold and otherwise distributed by them to
others." "Thus," submits the Government, "the Forsheys
admitted that they conspired with `Pete' and with Shreffler
to distribute heroin." The Government reads too much into
this evidence--the fact that the Forsheys and Shr effler
knew that they were involved in the same "business" (in
this case, the distribution of heroin) and that they obtained
much of their supply from the same "distributor" (Caban)
simply does not establish that they agreed to pool their
"efforts." We therefor e hold that there was insufficient
evidence to support a jury finding that Shr effler conspired
with Pedro Caban, Aaron Forshey, or Anthony Forshey.5

3.

Although he was not named in the indictment, the
Government's conspiracy case was strongest with respect to
Charles "Chuckie" Stoner. Stoner and Shreffler traveled to
Philadelphia together to purchase heroin on several
occasions, although each also frequently went without the
other. Shreffler was one of the people who introduced
Stoner to Caban, and the latter later became a major
source of supply for the former. Shreffler essentially lived
with Stoner for "four or five months." During that time,
both Shreffler and Stoner sold heroin out of Stoner's home,
_________________________________________________________________

5. The Government's Brief also summarily alleges that James Walker was
a co-conspirator of Shreffler, but elaborates only that Walker bought
heroin from both Shreffler and Charles Stoner. In the absence of
stronger evidence than this, we conclude that the evidence was
insufficient to support a conclusion that Shreffler conspired with Walker.

                               14
people would call "seven or eight" times a day about
purchasing heroin. Stoner obtained some of his heroin from
Shreffler, and would sometimes sell heroin to those who
came to his house looking for Shreffler when the latter was
not present.

This case is somewhat similar to United States v. Powell,
113 F.3d 464 (3d Cir. 1994), wher e we found the evidence
sufficient to support a jury's finding that James Powell had
conspired with his brother Antonio Powell to distribute
cocaine. In that case:

       A witness testified that James and Antonio Powell lived
       together, that they both sold cocaine, that they shared
       plastic bags to package the cocaine, and that if one of
       the brothers ran out of cocaine to sell, the other
       brother would supply it. As noted, James Powell
       assured a police informant that the cocaine the Powell
       brothers would sell the next day would match in
       quality the cocaine sold earlier by Antonio Powell.
       During a recorded telephone conversation, Antonio
       Powell consulted James Powell before setting the sales
       price for cocaine[, and James Powell also served as a
       lookout and driver when Antonio Powell sold cocaine to
       an undercover agent].

Id. at 467.

The relationship between Shreffler and Stoner bears
some resemblance to that between the Powell br others. Like
the Powells, Shreffler and Stoner lived together for several
months, and both of them sold drugs out of their shared
residence on a daily basis. And there was evidence that
Stoner would sometimes supply drugs to customers when
Shreffler was not available to do so. But, standing alone, all
that this evidence proved was that Shreffler and Stoner
were drug dealers who lived together for a time; it would
not, in our view, be enough to show the existence of an
agreement between them.

Moreoever, in Powell ther e was a great deal of evidence
that the brothers had pooled their efforts, but none of the
types of evidence that existed in that case ar e present here.
First, as noted above, James Powell acted as a lookout
when Antonio Powell conducted drug sales, and that fact

                               15
alone may well have been enough to show the existence of
a conspiracy between the brothers. When one person serves
as a lookout during another person's drug deals, it suggests
a unity of purpose and an intent to achieve a common goal
(to sell drugs without being caught) and an agr eement to
work together toward that goal (because one does not serve
as a lookout without agreeing to do so). In this case,
however, there was no testimony that Shr effler or Stoner
ever served as a lookout for the other.

Second, the fact that the Powell brothers consulted each
other before setting a sales price for a given deal strongly
implied that they had agreed to coordinate their activities.
Here, in contrast, there was no evidence of such
conversations between Shreffler and Stoner . Lastly, the fact
that the Powell brothers shared packaging materials
demonstrated that they had integrated their activities,
which implied the presence of an underlying agr eement.
There was no such evidence here.

Also lacking here are the sort of facts that we found
sufficient to support the conviction in Gibbs . In Gibbs, there
was evidence that Sydnor (the buyer) had offer ed to provide
physical protection for Gibbs (the seller). See 190 F.3d at
200--01. That Sydnor was willing to stick his neck out for
Gibbs suggested that he had a greater stake in the latter's
safety than a typical buyer, which in tur n implied that a
cooperative relationship existed between the two of them.
See id. at 201. There was also evidence that Gibbs had sold
Sydnor drugs on credit, which meant that each had an
economic stake in the other's continued success. See id.
Lastly, Gibbs and Sydnor conducted their business in code,
which demonstrated a considerable degree of coordination
and suggested the presence of a cooperative r elationship.
See id. at 200-02. The Shreffler/Stoner r elationship had
none of these hallmarks.

The only direct evidence of an agreement between
Shreffler and Stoner was a single sentence in James
Walker's testimony. Walker stated that Stoner "would sell
for Scott when Scott wasn't around." Although the question
is quite close in light of the jury's verdict and our resultant
standard of review, we conclude that this evidence is not
strong enough to support Shreffler's conviction.

                               16
Walker made the statement at issue in r esponse to the
question "Tell us how you were intr oduced to [Charles
Stoner]." Walker's full answer r eads: "I went to his house,
and I bought a bag of heroin from him. He would sell for
Scott when Scott wasn't around." The next question was:
"How do you know he was selling for Scott Shr effler?"
Walker got as far as saying "Because he told me that --"
before being interrupted by an objection. The objection was
first sustained, though it was eventually overruled after a
colloquy between the court and counsel for both sides. At
that point, the prosecutor asked Walker to "[t]ell us what
was said to you by Stoner concerning the her oin." In
response, Walker stated: "I went ther e and he was out of
heroin. He said he'd have to call Scott to get some more. So
he was getting it from Scott to sell." W alker's testimony
then turned to a discussion of his dealings with Scott
Shreffler.

What the above makes manifest is that it is unclear what
Walker meant by the critical statement or the basis upon
which he made it. Perhaps by "sell for Scott" Walker meant
that he thought that Stoner sold heroin on behalf of
Shreffler rather than in lieu of Shr effler when the latter was
not around the house. But even if this is the correct
reading of Walker's statement, the r ecord contains no way
to determine the basis of his belief. W alker started to
address that issue, but was interrupted by an objection and
the prosecutor never returned to it. The only information
we have that bears on the basis for Walker's belief is his
response to the next question put to him, when he said: "I
went there and he was out of heroin. He said he'd have to
call Scott to get some more. So he was getting it from Scott
to sell." If Walker's belief that Stoner was selling "for"
Shreffler was based only on the facts contained in the
above-quoted answer, then that evidence would be
insufficient to support a finding that ther e was an
agreement between Shreffler and Stoner for the reasons
stated above. If Walker's belief was based on something
else, then there is nothing in the recor d to explain or justify
Walker's inchoate conclusion.

We must, of course, view the evidence as a whole and in
the light most favorable to the Government; moreover, we

                               17
must make all reasonable inferences in its favor. See United
States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997). But it
is also the case that, even after doing that, the question
remains whether a reasonable jury couldfind that the
Government had proved each and every element of the
offense beyond a reasonable doubt. See id. Although the
evidence here would almost certainly be enough were this
a civil case and the burden of proof a mer e preponderance
of the evidence, this is a criminal case and the Government
had a much higher burden to surmount. Cf. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (holding that
a court considering a motion for summary judgment must
take into account the standard of proof that would apply at
trial, and specifically drawing an analogy to situations
where courts consider motions for acquittal in criminal
cases). In the absence of other evidence from which it could
be inferred that Shreffler and Stoner had agreed to a
common endeavor (and there is none), we hold that
Walker's ambiguous and unexplicated statement is not
enough to support a conclusion beyond a reasonable doubt
that Shreffler and Stoner were confederates who agreed to
work together as opposed to two drug dealers who shared
the same house for a time.

For a reason that escapes us, the Gover nment did not
charge Shreffler with distribution of heroin--a crime for
which the evidence at trial was more than sufficient to
convict, and for which he could have received the sentence
challenged here.6 Instead, it opted to indict and try him
only for conspiracy to distribute heroin. But a conspiracy
conviction may stand only if the Gover nment proves the
existence of an underlying agreement. Ther e is no special
rule for, or lesser burden in, drug cases. To parody a
familiar literary allusion, a conspiracy is a conspiracy is a
conspiracy. Because the Government never demonstrated
the existence of an agreement between Shr effler and at
least one other person, we will set aside Shr effler's
_________________________________________________________________

6. We express no opinion as to whether the Government may re-indict
Shreffler for distribution.

                               18
conviction on the grounds that the evidence was
insufficient to support it.7

III.

Pressler advances only one argument befor e us. He
contends that his sentence was imposed in violation of

(Text continued on page 21)
_________________________________________________________________

7. Shreffler also contends that the District Court: (1) erred in allowing
testimony about used heroin packages and syringes; (2) violated the
teachings of Apprendi v. New Jersey, 530 U.S. 466 (2000) by finding that
he had distributed heroin that resulted in two overdoses instead of
submitting the issue to the jury; and (3) err ed in determining the
amount of heroin attributable to him and in determining that he had
provided the heroin resulting in the Krouse and Stoner overdoses. In
light of our holding that there was insufficient evidence to convict
Shreffler on the underlying conspiracy char ge, we need not address
these issues.

Prompted by questioning from a member of the panel, Shreffler also
contended at oral argument that the District Court had erred in
determining that he was eligible for an enhanced Offense Level of 38
pursuant to U.S.S.G. S 2D1.1(a)(2), which applies "if the defendant is
convicted under 21 U.S.C. S 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), . . .
and
the offense of conviction establishes that death or serious bodily injury
resulted from the use of the substance." The basic thrust of the
argument is that Shreffler's "of fense of conviction establishes" only
that,
being over 18 years old, he conspired to distribute heroin to persons
under 21, but it does not "establish that death or seriously bodily injury
resulted" from the heroin that Shr effler conspired to distribute. If this
submission were correct (and had we upheld the conviction), then
Shreffler would have needed to be resentenced to a substantially shorter
term of imprisonment because the highest Of fense Level for which he
could otherwise be eligible would be 32. The ef fort to determine the
proper meaning of "offense of conviction" in the context of drug cases
illustrates a potentially serious problem with regard to the drafting of
the
Guidelines in the wake of Apprendi. Although we need not decide this
claim because of our decision to vacate Shreffler's conviction, we
identify
the problem for the benefit of the Sentencing Commission and suggest
that it may wish to consider redrafting S 2D1.1(a)(2).
The Guidelines never define "offense of conviction," but several factors
lead us to believe that the phrase includes only the facts underlying the
specific criminal offense for which the defendant was convicted.
Application Note 1(l) to S 1B1.1 states that" `[o]ffense' means the
offense
of conviction and all relevant conduct under S 1B1.3 (Relevant Conduct)

                               19
unless a different meaning is specified or is otherwise clear from the
context." (emphasis added). This formulation makes manifest that
"offense of conviction" is narrower than "offense." This supposition is
supported by Section 1B1.3, which states that a defendant's "Offense
Conduct" is determined by examining

       all acts and omissions committed, aided, abetted, counseled,
       commanded, induced, procured, or willfully caused by the
       defendant; and in the case of a jointly undertaken criminal
activity
       . . . [includes] all reasonably for eseeable acts and omissions of
       others in furtherance of the jointly undertaken criminal activity,
that
       occurred during the commission of the of fense of conviction, in
       preparation for that offense, or in the course of attempting to
avoid
       detection or responsibility for that of fense.

Significantly, this language suggests that not all acts or omissions
committed or willfully caused by a defendant during the commission of
the offense of conviction are themselves part of the offense of
conviction,
and seems to indicate that "offense of conviction" includes only the facts
undergirding the specific offense for which the defendant was convicted,
whereas "Relevant Conduct" includes other , uncharged and related
activities.

Additional support for our narrower reading of "offense of conviction"
comes from U.S.S.G. S 1B1.2(a) (Applicable Guideline), which instructs
sentencing courts to begin by "determin[ing] the offense guideline section
in Chapter Two (Offense Conduct) applicable to the offense of conviction
(i.e., the offense conduct charged in the indictment or information of
which
the defendant was convicted)." (emphasis added). Also relevant is the
amendment history of S 3A1.1(a) (Hate Crime Motivation of Individual
Victim). In the past, that Section pr ovided for a three step Offense
Level
enhancement "[i]f the finder of fact . . . determines . . . that the
defendant intentionally selected any victim . . . as the object of the
offense because of actual or perceived race, color, religion, national
origin, ethnicity, gender, disability or sexual orientation." U.S.S.G.
S 3A1.1(a), historical notes, 1997 amendments, available in Westlaw
(emphasis added). In 1997, however, the operative language was changed
to require that the defendant select the victim "as the object of the
offense of conviction." Id. (emphasis added). "Consistent with Congress'
intent to punish a defendant whose primary objective in committing a
hate crime was to harm a member of a particular class of individuals,"
the Sentencing Commission explained that the amendment was
necessary to clarify "that the enhancement in subsection (a) is limited to
the victim of the defendant's offense of conviction." (emphasis added).

                               20
Apprendi v. New Jersey, 530 U.S. 466 (2000), because it
was arrived at in part as a result of sentencing findings
made by the District Court. He is incorrect.

The jury convicted Pressler of conspiracy to distribute an
_________________________________________________________________

This history supports our view that "offense of conviction" includes only
the substantive crime for which a particular defendant was convicted.

If we are correct, then the critical inquiry involves identifying the
substantive crime for which the defendant was convicted. But Apprendi
makes answering that question difficult in many drug cases. Before
Apprendi, the consensus view was that 21 U.S.C. S 841 contained but a
single "crime," which was codified in S 841(a). See, e.g., United States
v.
Chapple, 985 F.2d 729, 731 (3d Cir . 1993). That Section makes it illegal
to, inter alia, "knowingly or intentionally . . . manufacture, distribute,
or
dispense . . . a controlled substance." Section S 841(b) then lists an
enormous range of variables that operate to cr eate sentencing exposures
ranging from "not more than one year" to a mandatory life sentence.
Compare 21 U.S.C. S 841(b)(3) (distribution of a Schedule V controlled
substance) with id. S 841(b)(1)(C) (distribution of a Schedule I or II
controlled substance by a person who has a prior conviction for a felony
drug offense and where death or serious bodily injury results from the
use of that substance). Prior to Apprendi , it was the view of this Court
that all S 841(b) findings were for the sentencing court rather than the
jury. See, e.g., Chapple, 985 F.2d at 731. Under such a regime, it would
have been reasonable to conclude that a defendant's "offense of
conviction" included the jury's finding that the defendant had violated
S 841(a) and the sentencing court's deter mination as to which of the
S 841(b) factors were present.

Such reasoning, however, is problematic after Apprendi, whose central
teaching is that "[o]ther than the fact of a prior conviction, any fact
that
increases the penalty for a crime beyond the pr escribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt." 530 U.S. at 466. The "prescribed statutory maximum" is the
longest sentence that a defendant could receive based solely on the facts
necessarily encompassed within the jury's ver dict of guilty. See, e.g.,
United States v. Williams, 235 F.3d 858, 863-64 (3d Cir. 2000). For
example, if a jury finds a defendant guilty of"distribution of cocaine"
without making a specific finding as to quantity or any other factors,
then the "prescribed statutory maximum" is 20 years. Thus, to avoid
rendering one of the most significant federal criminal statutes
unconstitutional, many of our sister circuits have held that any fact that
increases a defendant's sentence beyond that which would have been

                               21
unspecified amount of heroin, specificallyfinding that he
was over 18 years old and that he had conspir ed to
distribute heroin to persons under the age of 21. (Pr. App.
51). Section 846 of Title 21 of the United States Code
makes it unlawful to conspire to violate the federal drugs
laws, and provides that those who do ar e subject to the
same penalties as those who commit the underlying
offenses. Absent a quantity finding, distribution of heroin
generally carries a maximum sentence of 20 years in
prison. See 21 U.S.C. S 841(b)(1)(C). But 21 U.S.C. S 859(a)
doubles all applicable penalties for persons over the age of
18 who distribute narcotics to persons under the age of 21.
Based solely on the jury's verdict, ther efore, Pressler's
maximum sentence was 40 years--twelve years more than
his ultimate sentence of 336 months. A defendant has no
valid Apprendi claim where, as here, his ultimate sentence
is less than that which would have been authorized by the
jury's verdict. See United States v. W illiams, 235 F.3d 858,
863 (3d Cir. 2000); see also id. at 862 ("Apprendi does not
_________________________________________________________________

permissible absent that fact is an "element" of the S 841 "offense." See,
e.g., United States v. Westmoreland, 240 F.3d 618, 632-33 (7th Cir. 2001)
(citing cases).

Though saving S 841 from unconstitutionality in many situations, this
interpretation--in conjunction with the possible interpretation of
"offense
of conviction" outlined previously--may have consequences not intended
by the Sentencing Commission. If the statutory interpretation embraced
by our sister circuits is correct, thenS 841 describes not one, but many
"crimes," and the "crime" for which Shr effler was convicted was
conspiracy to distribute an unspecified amount of heroin by persons over
18 to persons under 21. See 21 U.S.C. S 846; S 841(a); S 841(b)(1)(C);
S 859(a). And if the interpretation of"offense of conviction" that we
outlined above is right, then Shreffler's"offense of conviction" did not
"establish" that "death or serious bodily injury resulted from the use of
the" heroin that he conspired to distribute, and the District Court erred
in finding that he was eligible for an enhanced Of fense Level pursuant
to U.S.S.G. S 2D1.1(a)(2). We ar e cognizant that this potential result
may
be at odds with the intent of the Sentencing Commission, which, after
all, wrote the Guidelines long before Apprendi altered the background
legal landscape. We therefore call this matter to the attention of the
Commission and suggest that this (and possibly other Guidelines
provisions) may need to be redrafted in light of Apprendi.

                               22
apply to . . . increase[s] . . . under the Sentencing
Guidelines."). We will, therefor e, affirm Pressler's sentence.

IV.

The judgment of conviction in No. 00-2588 will be
vacated, and the matter remanded to the District Court
with instructions to enter a judgment of acquittal in favor
of Defendant Scott Shreffler. The judgment of sentence in
No. 00-1824 will be affirmed. The Clerk is directed to send
this opinion to the Chair and Chief Counsel of the United
States Sentencing Commission, calling their attention to
footnote 7.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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