           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2    United States v. Gill                       No. 01-6538
        ELECTRONIC CITATION: 2003 FED App. 0384P (6th Cir.)
                    File Name: 03a0384p.06                             Victor L. Ivy, ASSISTANT UNITED STATES ATTORNEY,
                                                                       Jackson, Tennessee, for Appellee. ON BRIEF: M. Dianne
                                                                       Smothers, OFFICE OF THE FEDERAL PUBLIC
UNITED STATES COURT OF APPEALS                                         DEFENDER, Memphis, Tennessee, for Appellant. Victor L.
                                                                       Ivy, ASSISTANT UNITED STATES ATTORNEY, Jackson,
                  FOR THE SIXTH CIRCUIT                                Tennessee, for Appellee.
                    _________________
                                                                                           _________________
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                                                             OPINION
                                  -                                                        _________________
                                  -   No. 01-6538
            v.                    -                                       DAVID M. LAWSON, District Judge. The United States
                                   >                                   Sentencing Commission has prescribed a methodology that
                                  ,                                    trial courts must use to determine a sentencing range in a
 CHRISTOPHER GILL,                -
         Defendant-Appellant. -                                        criminal case. A key ingredient of the sentencing formula in
                                                                       drug cases is the quantity of a controlled substance for which
                                 N                                     a convicted defendant will be held accountable. A defendant
      Appeal from the United States District Court                     is responsible for all drug quantities that are included within
    for the Western District of Tennessee at Jackson.                  the scope of his “relevant conduct,” as that term is defined by
  No. 01-10019—James D. Todd, Chief District Judge.                    the United States Sentencing Guidelines Manual. In this case,
                                                                       Christopher Gill, the defendant, contends that his sentence for
                    Argued: March 12, 2003                             possession with intent to distribute cocaine was too severe
                                                                       because the district court included in its calculation of drug
             Decided and Filed: October 31, 2003                       quantity, cocaine that Gill possessed only for personal use.
                                                                       We agree with this argument, for reasons explained in detail
 Before: MOORE and CLAY, Circuit Judges; LAWSON,                       below, and therefore we vacate Gill’s sentence and remand
                 District Judge.*                                      for a new sentencing hearing.

                      _________________                                                              I.

                           COUNSEL                                        On April 16, 2001, Gill was indicted on three counts by a
                                                                       grand jury for the United States District Court for the Western
ARGUED: April R. Goode, OFFICE OF THE FEDERAL                          District of Tennessee, sitting in Jackson. Count one charged
PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.                    the defendant with possession of cocaine with intent to
                                                                       distribute, contrary to 21 U.S.C. § 841(a)(1). In count two,
                                                                       the grand jury alleged that the defendant knowingly possessed
    *
                                                                       a firearm in furtherance of a drug trafficking crime, contrary
     The Honorable David M. Lawson, United States District Judge for   to 18 U.S.C. § 924(c). The third and final count charged
the Eastern D istrict of M ichigan, sitting by de signation.

                                 1
No. 01-6538                        United States v. Gill       3   4     United States v. Gill                         No. 01-6538

unlawful possession of that same firearm by a previously           deducted two points for acceptance of responsibility, see
convicted felon. See 18 U.S.C. § 922(g). All of these              U.S.S.G. § 3E1.1(a), and concluded that the applicable
offenses were alleged to have been committed on                    sentence range, given the defendant’s placement in criminal
December 20, 2000.                                                 history category IV, was 21 to 27 months. See id. Ch. 5, Pt.
                                                                   A (sentencing table).
  The defendant pleaded guilty to counts one and two on
August 17, 2001, and the government agreed to dismiss the            As previously stated, the defendant filed timely objections
remaining count. After receiving the presentence report, the       to the presentence report, contending that he should be held
defendant objected to the recommendation that he be                accountable only for 6.8 grams of cocaine, the amount in his
sentenced to 81 months in custody. Although he did not             possession when he was arrested. Gill reasoned that he was
dispute the initial 60 months of that term, which stemmed          not charged with conspiracy or with possession over a range
from his conviction on count two, the defendant alleged that       of dates; instead the offense of conviction, according to the
the recommended 21-month sentence was based on an                  indictment, was that Gill possessed the cocaine that he
erroneous conclusion that he intended to distribute 35.4375        intended to distribute on a specific date. That drug amount
grams of cocaine. The basis for the probation officer’s            called for a base offense level of 12, and a net offense level of
reasoning was as follows:                                          10, yielding a sentence range of 15 to 21 months in custody.
  Mr. Gill stated to police that he had bought eight grams            At sentencing, the government urged adoption of the
  of powder cocaine for personal use during the weekend            presentence report and read the report’s summary of the
  preceding his arrest on the instant offense, and the             defendant’s statements into the record. No other evidence
  electronic scales he possessed were used for his own             was offered concerning the amount of cocaine possessed by
  quality control purposes to avoid getting shorted in his         the defendant. In response to the district court’s query as to
  drug transactions. However, in a written statement made          the government’s position on how to account for the drugs the
  to officers of the Jackson Police Department on                  defendant likely possessed for personal use, the Assistant
  March 30, 2001, Christopher J. Gill stated that for the          United States Attorney stated that he had not researched the
  five weeks preceding his arrest on the instant offense, he       issue, he had no witnesses available to inform the court of the
  would buy approximately one-quarter ounce of “soft”              “customary practice” on the street, and he found it difficult to
  (powdered cocaine) and would sell out of that quantity to        provide a definitive answer. J.A. at 28-29. Defense counsel
  make a profit.                                                   also confessed that she knew of no authority on how such
                                                                   adjustments could be made, but relied on the defendant’s
J.A. at 40. Although the calculations leading to the 35.4375-      insistence that he had purchased eight grams the week before
gram figure are not provided in the report, the government         his arrest and had about six grams remaining at the time of his
quite sensibly suggests that the probation officer simply          arrest. Since the defendant was found in possession of 6.8
multiplied the quarter-ounce figure by five, one for each          grams, defense counsel argued that use of the full eight-gram
week, and then converted 1.25 ounces to the figure of 35.4375      figure would be inaccurate and inappropriate. J.A. at 30.
grams. The probation officer then referred to U.S.S.G.
§ 2D1.1(c)(13), which establishes a base offense level of 14         The district court also stated that it had found no
in cases where the defendant is accountable for 25 to 50           controlling authority on the issue, but concluded “the law
grams of cocaine powder. The probation officer then                ought to be, if it’s not, that if you possess drugs with intent to
No. 01-6538                         United States v. Gill       5   6    United States v. Gill                        No. 01-6538

distribute some of it [sic] and you’re going to use some of it,     U.S. ___, 123 S. Ct. 1380 (2003). Relevant conduct need not
then all of it is attributable to you as relevant conduct in a      be charged, nor must it otherwise even be within the
drug sale case.” Id. at 31. “Otherwise,” the district court         jurisdiction of the sentencing court. United States v. Hough,
reasoned,                                                           276 F.3d 884, 898 (6th Cir. 2002).
  we’d end up with a situation in every case where a drug              According to the Sentencing Guidelines Manual, the first
  dealer caught up with a big bag of dope, all he’s got to do       step in establishing a sentencing range is to locate the
  is say, “Well, I had bought this as my private stash, and         applicable guideline section according to the offense of
  I was going to use a gram a week for the next six years,”         conviction, see U.S.S.G. § 1B1.2(a), and then set the offense
  and it gets impossible to determine.                              level based on the defendant’s “relevant conduct.” See id.
                                                                    § 1B1.2(b). Here, the defendant was charged with possession
Ibid. The district court proceeded to adopt the presentence         with intent to distribute a controlled substance under 21
report recommendation, calculated the appropriate guideline         U.S.C. § 841(a), which required the sentencing court to refer
range on count one to be 21 to 27 months, and then sentenced        to U.S.S.G. § 2D1.1 to obtain the base offense level. See id.
the defendant to 21 months of incarceration to run                  App. A. The crime of simple possession, which is defined by
consecutive to his mandatory-minimum sentence of 60                 21 U.S.C. § 844(a), calls for the use of a different guideline
months on count two. Four years of supervised release are to        section, U.S.S.G. § 2D2.1. Under Section 2D1.1, the base
follow after the defendant’s release from custody.                  offense level for a defendant whose crime does not involve
                                                                    death or serious bodily injury resulting from the use of a
  Judgment was entered on November 14, 2001, and the                controlled substance is determined exclusively by the drug
defendant filed a timely appeal. Gill does not challenge in         quantity table. See id. § 2D1.1(a)(3). The amount entered
this appeal his sixty-month sentence on the weapons count.          into that table, however, is not limited to the quantity
                                                                    involved in the defendant’s crime. The Guidelines Manual
                              II.                                   directs that “[t]ypes and quantities of drugs not specified in
                                                                    the count of conviction may be considered in determining the
  The district court’s factual findings at a sentencing             offense level. See § 1B1.3(a)(2) (Relevant Conduct).” Id.
proceeding are reviewed for clear error, and its application of     § 2D1.1, comment. (n.12).
the Sentencing Guidelines to those facts is reviewed de novo.
United States v. Butler, 297 F.3d 505, 516 (6th Cir. 2002),           In order to determine whether drug quantities possessed for
cert. denied ___ U.S. ___, 123 S. Ct. 2074 (2003). When             personal use should be included in the tally when establishing
calculating the drug quantities attributable to a defendant as      the base offense level for a distribution- or trafficking-type
relevant conduct under the Sentencing Guidelines, the district      crime under Section 2D1.1, the sentencing court must follow
court’s findings must be supported by a preponderance of the        the path laid out in the Guidelines Manual to the definition of
evidence. United States v. Copeland, 321 F.3d 582, 602 (6th         “relevant conduct” found in Section 1B1.3. There, the
Cir. 2003). When the amount of drugs is uncertain, the              Sentencing Commission states that the base offense level in
district court must “err on the side of caution” and hold the       cases of this sort is determined “on the basis of . . . all acts
defendant accountable only for that amount that is more likely      and omissions committed, aided, abetted, counseled,
than not attributable to the defendant. Ibid.; United States v.     commanded, induced, procured, or willfully caused by the
Lopez, 309 F.3d 966, 972 (6th Cir. 2002), cert. denied, ___         defendant . . . that occurred during the commission of the
No. 01-6538                          United States v. Gill      7    8    United States v. Gill                       No. 01-6538

offense of conviction, in preparation for that offense, or in the    favor of the government. In fact, Thomas suggests the
course of attempting to avoid detection or responsibility for        opposite conclusion. In that case, the defendant, who was
that offense.” Id. § 1B1.3(a)(1). In addition, “with respect to      convicted of distribution and possession with intent to
offenses of a character for which § 3D1.2(d) would require           distribute cocaine base, argued that 2.15 grams of 6.32 grams
grouping of multiple counts,” relevant conduct includes “all         of cocaine base found when he was searched were for purely
acts and omissions . . . that were part of the same course of        personal use. We held that the district court properly could
conduct or common scheme or plan as the offense of                   have rejected this inference, however, based on the testimony
conviction.” Id. § 1B1.3(a)(2). Offenses characterized by the        of the government’s drug agent that no “mere user” would
grouping rule contained in Section 3D1.2 are those that              have over two grams of cocaine base on his person under
“involv[e] substantially the same harm.” Id. § 3D1.2.                those circumstances. Accordingly, we affirmed the sentence
Pursuing that definition further, we learn that multiple counts      based on the full amount possessed by the defendant.
involve the “same harm” “[w]hen the offense level is                 Thomas, 49 F.3d at 259-60. As the defendant points out in
determined largely on the basis of . . . the quantity of a           his brief in this case, if there were no legal distinction
substance involved.” Id. § 3D1.2(d). However, the                    between drugs possessed for personal consumption on one
Guidelines Manual lists the offenses that may be grouped             hand, and trafficking, on the other, when the sentence is for a
under this subsection, and, with respect to drug offenses,           distribution-type offense, then it would have been pointless
includes only those offenses covered by “§§ 2D1.1, 2D1.2,            for the Thomas court even to have raised the issue of whether
2D1.5, 2D1.11, [and] 2D1.13.” Ibid. Simple possession of             the proof of an intent to distribute the entire quantity was
a controlled substance, covered by Section 2D2.1, is not             sufficient.
included in this list.
                                                                       We believe that Page is inapplicable because of the
  As noted above, the offense of conviction in this case is          different considerations that arise when the defendant has
possession of a controlled substance with intent to distribute,      been convicted of conspiracy to distribute drugs. As we
a crime separate and distinct from simple possession. The            explained in that case, the key factor in determining the
defendant insists that it is axiomatic that drug quantities          quantity of drugs for which an individual conspirator will be
possessed for personal use were not possessed for the purpose        held accountable at sentencing is foreseeability. Page, 232
of later distribution and therefore could not have been part of      F.3d at 541-42. Thus, adopting the reasoning of the First
the offense of conviction. The government counters that the          Circuit in United States v. Innamorati, 996 F.2d 456, 492 (1st
defendant’s purpose for possessing some of the drugs does            Cir. 1993), we held “that the drugs obtained by defendant
not matter, since, according to the government, we previously        from his supplier for his personal use were properly included
held in United States v. Thomas, 49 F.3d 253 (6th Cir. 1995),        by the district court in determining the quantity of drugs that
that personal use amounts should be counted in fashioning a          the defendant knew were distributed by the conspiracy.”
sentence for possession with intent to distribute, and we            Page, 232 F.3d at 542. In this case, the defendant was not
reached the same result in a drug conspiracy case in United          charged with or convicted of conspiracy, nor was his
States v. Page, 232 F.3d 536 (6th Cir. 2000), cert. denied, 532      involvement in a conspiracy proved as part of the relevant
U.S. 1056 (2001).                                                    conduct. The record in this case presents the claim that the
                                                                     defendant was involved in but two drug crimes: possession
  We do not agree with the government’s reading of Thomas,           with intent to distribute, for which he was charged, and
or the notion that it resolves the issue presented in this case in   simple possession, which was uncharged criminal conduct.
No. 01-6538                         United States v. Gill      9    10    United States v. Gill                        No. 01-6538

   Uncharged conduct may be considered in calculating the           conviction. Citing Section 2D1.1, the court first observed that
sentencing range under the Sentencing Guidelines only if the        the base offense level for a drug offense is based entirely on
conduct is “relevant.” See United States v. Hill, 79 F.3d           the quantity of drugs, and that the government has the burden
1477, 1481 (6th Cir.), cert. denied, 519 U.S. 858 (1996).           to prove this amount by a preponderance of the evidence, as
Returning to the Sentencing Guidelines Manual’s language –          we likewise have held. See United States v. Owusu, 199 F.3d
which we hesitate to describe as “plain,” although it is            329, 344 (6th Cir. 2000). Then, referring to Section
unequivocal – the defendant’s possession of drugs for               1B1.3(a)(2), the court declared that “[d]rugs possessed for
personal use cannot be considered an “act[] . . . that occurred     mere personal use are not relevant to the crime of possession
during the commission of the offense of conviction, in              with intent to distribute because they are not ‘part of the same
preparation for that offense, or in the course of attempting to     course of conduct’ or ‘common scheme’ as drugs intended for
avoid detection or responsibility for that offense” under           distribution.” Kipp, 10 F.3d at 1465-66. The court concluded
Section 1B1.3(a)(1), since the offense of conviction required       that sentencing courts calculating a base offense level using
an intent to distribute to accompany the act of drug possession     Section 2D1.1(c) “must make a factual finding as to the
under 21 U.S.C. § 841(a). See United States v. Bennett, 291         quantity of drugs possessed for distribution and cannot
F.3d 888, 895 (6th Cir. 2002). Possessing drugs for personal        include any amount possessed strictly for personal use.” Id.
use was not part of or connected to the commission of,              at 1466.
preparation for, or concealment of the distribution-type
offense. Simple possession is not “relevant” under Section            Although the Ninth Circuit relied on a subsection of the
1B1.3(a)(2), as “part of the same course of conduct or              relevant conduct provision that we find inapplicable, we
common scheme or plan,” because that section applies only           nonetheless agree with the alternate ground put forth for
if the two offenses can be grouped under Section 3D1.2(d).          excluding personal use drugs from the total in such cases:
See Hill, 79 F.3d at 1482. Simple possession is not one of the
crimes listed in this grouping rule that triggers the application     [F]ailure to distinguish the amount possessed for
of that relevant conduct section.                                     personal use from the amount possessed for distribution
                                                                      contravenes a fundamental principle of the Sentencing
  We hold, therefore, that simple possession of illegal drugs         Guidelines – proportionality in sentencing – because it
for personal use is not conduct that is “relevant” to the charge      would result in sentencing a drug user who possessed 50
of possession with intent to distribute a controlled substance        grams for personal use and gave one gram away more
for the purpose of determining a sentence range under the             harshly than a drug dealer who possessed 49 grams for
Sentencing Guidelines. Amounts possessed for personal                 distribution.
consumption should not be included when calculating the
amount of drugs to enter into the drug quantity table in            Ibid. See also United States v. Rodriguez-Sanchez, 23 F.3d
U.S.S.G. § 2D1.1(c).                                                1488, 1496 (9th Cir. 1994) (noting that “§ 841(a)(1) does not
                                                                    criminalize mere possession of drugs, only possession with
  Other circuits have reached the same conclusion, albeit by        intent to distribute. . . . Other statutes deal with the crime of
different reasoning. In United States v. Kipp, 10 F.3d 1463         possession. See 21 U.S.C. § 844.”).
(9th Cir. 1993), the Ninth Circuit sustained a defendant’s
objection to the inclusion of drugs intended purely for               Our holding follows more closely the decision of the
personal use in the relevant conduct for his distribution           Seventh Circuit in United States v. Wyss, 147 F.3d 631 (7th
No. 01-6538                         United States v. Gill    11    12    United States v. Gill                        No. 01-6538

Cir. 1998). There, the court vacated the defendant’s sentence      distribute on only that single date. He maintains that his
for possession with intent to distribute marijuana because the     acquisition of cocaine over the previous five weeks, from
trial court may have included cocaine possessed for personal       which he sold a portion, according to his statement, cannot be
consumption in its guideline calculation. The Wyss court also      counted in the total drug quantity for the purpose of U.S.S.G.
made reference to Section 1B1.3(a)(2), noting that under the       § 2D1.1(c). This argument must be rejected. Certain
Sentencing Guidelines, an uncharged drug offense is not            uncharged conduct may be considered as “relevant conduct”
relevant unless it is part of the same course of conduct or        under the Sentencing Guidelines. Hough, 276 F.3d at 898;
common plan as the offense of conviction. “It can only be          United States v. Silverman, 889 F.2d 1531, 1538-39 (6th Cir.
that if it is part of the same group of offenses for sentencing    1989), cert. denied, 507 U.S. 990 (1993) (holding that
purposes.” Id. at 632. Referring to the grouping rule, Section     “conduct that is not formally charged or is not an element of
3D1.2(d), the court observed that “[p]ossession of illegal         the offense of conviction may enter into the determination of
drugs for personal use cannot be grouped with other                the applicable Guideline sentencing range”). We previously
offenses.” Ibid.                                                   have observed that separate incidents of possession with
                                                                   intent to distribute can be included within the scope of
  The Eighth and Second Circuits have adopted similar              relevant conduct for the purpose of determining drug quantity
positions. See United States v. Fraser, 243 F.3d 473, 476          when they qualify as part of a “common scheme or plan” or
(8th Cir. 2001) (adopting the reasoning of both Kipp and           constitute the “same course of conduct” under U.S.S.G.
Wyss, and holding that when calculating the base offense           § 1B1.3. See Hill, 79 F.3d at 1481-85 (finding that a discrete
level of § 2D1.1 of the Guidelines, “drug quantities intended      incident of possession separated in time by over one year
for personal use must be excluded”); United States v.              from the offense of conviction could not be part of a common
Williams, 247 F.3d 353 (2d Cir. 2001) (following Kipp and          scheme or course of conduct). To find that separate events
Wyss). The Eleventh Circuit specifically rejected Kipp in          are related in this fashion, the Guidelines Manual requires
United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996), but     courts to balance three factors: “the degree of similarity of the
we agree with other courts that have found the facts in            offenses, the regularity (repetitions) of the offenses, and the
Antonietti to be distinguishable, primarily because the            time interval between the offenses.” Id. at 1482 (quoting
defendant in that case was convicted of both possession with       U.S.S.G. § 1B1.3, comment. (n.9(B))). We believe that the
intent to distribute and conspiracy to distribute. See Williams,   sentencing court could conclude that Gill’s serial practice of
247 F.3d at 357-58. We, therefore, do not view the Eleventh        acquiring a quantity of cocaine to sell each week for five
Circuit decision as convincing precedent and we join the other     weeks could constitute “part of a single episode, spree, or
circuits that have refused to follow it. See Fraser, 243 F.3d      ongoing series of offenses.” U.S.S.G. § 1B1.3, comment.
at 475 n.4 (noting that the conviction for conspiracy to           (n.9(B)). The portion of cocaine found to be obtained for
distribute “may have been the real rationale” for the Eleventh     later distribution, therefore, properly is included in the
Circuit’s decision); Wyss, 147 F.3d at 632 (stating that           quantity for which the defendant should be accountable under
Antonietti, in rejecting Kipp, “overlooked” the distinction        Section 2D1.1(c).
between conspiracy and possession with intent to distribute).
                                                                     The sentencing court in this case included cocaine that the
  Gill also contends that the relevant conduct inquiry must be     defendant possessed for personal use in the total drug quantity
confined to his activity that took place on December 20, 2000,     when it arrived at a base offense level of 14 under U.S.S.G.
because he was charged with possession with intent to              § 2D1.1(c)(13). This was error. However, the government
No. 01-6538                         United States v. Gill    13    14   United States v. Gill                      No. 01-6538

insists that the district court’s error was harmless because the     The defendant asserted in his statement that he used about
sentence of 21 months is admittedly within both of the             two grams of the eight grams of cocaine that he had
competing guideline ranges in this case. Harmless error is not     purchased most recently. Analysis showed that 6.8 grams
an inevitable conclusion under these circumstances. Rather,        remained of that eight grams. Given that approximately one-
in determining whether a remand is required, “a court of           half of the week had passed, and that 1.2 grams thus can be
appeals must decide whether the district court would have          assumed to be the defendant’s average usage for that period,
imposed the same sentence had it not relied upon the invalid       that would result in a minimum discount, over five weeks, of
factor or factors.” Williams v. United States, 503 U.S. 193,       1.2 times two, times five weeks, or twelve grams. Because
203 (1992); United States v. Reed, 264 F.3d 640, 652 (6th Cir.     35.4375 grams minus twelve grams results in 23.4375 grams,
2001), cert. denied, 535 U.S. 962 (2002). A sentence falling       crediting the defendant’s unrebutted testimony would result
within both guideline ranges is, to be sure, a factor to be        in a 15-to-21-month sentencing range.
considered, but it does not compel a finding of harmless error.
See United States v. Vandeberg, 201 F.3d 805, 812 (6th Cir.           We agree with the Tenth Circuit that the defendant bears
2000) (holding that erroneous sentencing enhancement was           the burden of production with respect to his personal use of
not harmless because it altered the applicable guideline range     the drug in question. See United States v. Asch, 207 F.3d
from 140-175 months to 120-150 months, and the defendant           1238, 1246 (10th Cir. 2000). “Evidence, including personal
had been sentenced to a 140-month term of incarceration). It       testimony, of actual consumption of specific quantities would
would be a different matter if the sentence either way is          be probative of such an intent.” Ibid. See also Wyss, 147
subject to the same guideline range, of course. See United         F.3d at 633 (noting that the defendant has “some burden of
States v. Charles, 138 F.3d 257, 268 (6th Cir. 1998). When         producing evidence concerning the amount that he consumed
the district court sentences a defendant to the low end of the     – he cannot just say to the government, ‘I’m an addict, so
guideline range, however, the appellate court can reasonably       prove how much of the cocaine that I bought I kept for my
infer that the defendant might have received a lower sentence      own use rather than to resell.’”). The ultimate burden of
if the guideline range itself had been lower.                      persuasion, however, rests upon the government. Asch, 207
                                                                   F.3d at 1246.
  In order to demonstrate that the trial court’s error was not
harmless, the defendant must show that the trial court could         The defendant has met his burden, and the evidence of
have found, by a preponderance of evidence, that a different       personal use has not been rebutted by the government. Of
guideline range was appropriate. Ibid. Here, the Guidelines        course, the sentencing court is not obliged to accept the
provide a base level of 14 for possession of 25 grams or more      defendant’s statement; the determination of the credibility of
of cocaine, and a base level of 12 for possession of less than     the evidence offered at a sentencing hearing is the
25 grams of cocaine. See U.S.S.G. § 2D1.1(c)(13), (14).            responsibility of the district court. Nonetheless, because the
When the base offense level is reduced by two levels for           lower court did not properly apply the relevant Sentencing
acceptance of responsibility, the question is whether, under       Guidelines provisions, the case must be remanded for
the facts in the present record, the sentencing range could be     resentencing on the present record, since “[t]he government
moved from a net level 12, which yields a 21-to-27-month           was entitled to only one opportunity to present evidence on
sentence range (given the defendant’s criminal history             this issue.” Wyss, 147 F.3d at 633.
category of IV), to a net level 10, and its 15-to-21-month
sentencing range.
No. 01-6538                        United States v. Gill   15

                            III.
   The defendant’s sentence of 21 months on count one of the
indictment charging possession of cocaine with intent to
distribute, contrary to 21 U.S.C. § 841(a)(1), is VACATED,
and the matter is REMANDED to the district court for
resentencing in accordance with this opinion.           The
defendant’s consecutive sentence of 60 months on count two,
for knowingly possessing a firearm in furtherance of a drug
trafficking crime, contrary to 18 U.S.C. § 924(c), remains
intact.
