                                                     NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                    No. 10-3303
                                   _____________

                         UNITED STATES OF AMERICA

                                          v.

                            MALIK BLAND, a/k/a Easy,

                                       Malik Bland,
                                              Appellant
                                   _____________

                 On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       District Court No. 2-07-cr-00737-006
                District Judge: The Honorable Eduardo C. Robreno

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              September 13, 2012

                 Before: SMITH, and CHAGARES, Circuit Judges
                            ROSENTHAL, District Judge *

                            (Filed: September 25, 2012)
                             _____________________

                                   OPINION
                             _____________________


*
The Honorable Lee H. Rosenthal, United States District Judge for the United States
District Court for the Southern District of Texas, sitting by designation.

                                           1
SMITH, Circuit Judge.

      A jury convicted Malik Bland of conspiring to possess with the intent to

distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). The

United States District Court for the Eastern District of Pennsylvania granted Bland

a substantial downward variance from a guideline range of 292 to 365 months by

imposing a sentence of 192 months of imprisonment. Bland appealed, challenging

his conviction and sentence. 1 Although we will affirm his conviction, we will

vacate Bland’s sentence and remand this matter to the District Court. Specifically,

we direct the District Court to conduct further proceedings as to the weight of

crack cocaine for which Bland should be held responsible for sentencing purposes.

                                        I.

      Bland sold crack cocaine in Philadelphia at the corner of 61st Street and

Glenmore Avenue. Around the same time, a group led by Kareem Smith was

distributing cocaine and crack cocaine in parts of Philadelphia, Pennsylvania, and

Cecil County, Maryland. Landrum Thompson worked for Smith, selling at the

same street corner as Bland. In October of 2003, when one of Smith’s sellers in

Maryland was arrested, Smith and Thompson approached Bland about selling for

them in Maryland. Bland “wanted to make money hustling.” In his view, “[w]hat

[he] was doing on the corner wasn’t cutting it.” Bland accepted the offer, and



                                        2
advised Smith that he “was hungry.”

      Within a week of being set up in Smith’s house in Maryland, Bland sold

crack to an undercover officer. During that transaction, Bland gave the undercover

officer a piece of paper in the event the undercover officer needed to contact

Bland. The paper contained Bland’s name and cell number, as well as the names

of Smith and Thompson. Several days later, the undercover officer called Bland’s

number and asked to purchase more crack. Bland advised the undercover officer

to come to his house, stating “my man is here.” After the transaction was

completed, Bland was arrested.        He was eventually convicted of violating

Maryland law and was sentenced to ten years’ imprisonment.

      Bland was released from prison on January 31, 2006.          At some point

thereafter, Bland returned to selling crack with Thompson at the corner of 61st and

Glenmore Avenue.2 On October 5, 2006, Bland was arrested and charged with

possession with intent to deliver a controlled substance in violation of

Pennsylvania law. He returned to jail, eventually pled guilty on January 23, 2007,


1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
  The transcript contains the following exchange between the prosecutor and
Thompson:
      Q.      When did [Bland] come and when did he stop, that is the question I’m
              asking.
      A.      I guess he stopped October [5, 2006, when he was arrested].
      Q.      In about October. And how long had he been out there at that point?
      A.      A couple months.
                                         3
and was sentenced to six to twenty-three months of imprisonment.

      Subsequently, a federal grand jury sitting in the Eastern District of

Pennsylvania returned a second superseding indictment, charging Bland and eight

others with conspiring to distribute cocaine and crack cocaine. Bland and three of

his co-defendants went to trial. A jury found each of them guilty of the conspiracy

offense. Bland moved for a judgment of acquittal, challenging the sufficiency of

the evidence.

      During a hearing on the motion, Bland asserted that he was an independent

salesman and that there was no evidence to show that he was a member of the

conspiracy. In addition, he argued that he should not be held responsible for the

amount of crack sold by the conspiracy while he was incarcerated on the Maryland

offense. When the District Court asked the government what connection Bland

had to the conspiracy during his imprisonment, the AUSA replied: “None. During

the period of time when he was incarcerated, he was not involved, I agree with that

a hundred percent.” The Court inquired how Bland could be charged with being a

member from 2002 to 2007. The AUSA replied:

      Because he was a member of the conspiracy in the early years, and as
      soon as he got out of jail he went right back to his role that he held
      before he went to jail as a seller for the same conspiracy that
      overlapped his incarceration. The conspiracy didn’t die when Mr.
      Bland left. He entered, and he was in and out, just like Mr. Smith was
      in and out during the course of the conspiracy.


                                        4
The Court noted that Smith maintained a role while he was in prison, but that

Bland was “not one of the brains behind this scheme.” The AUSA agreed Bland

was not key to the operation and that Bland’s sporadic membership presented a

sentencing issue. The AUSA further stated: “I agree that during the period of time

he’s incarcerated, we can’t attribute anything to him.” In response to further

questioning, the AUSA stated that “[t]here’s no evidence that [Bland] had contact

with any member of the conspiracy during that period of time” he was in jail.

Several days after the hearing, the District Court denied the motion for judgment of

acquittal.

      On July 16, 2010, the District Court issued a memorandum, setting forth its

findings as to each defendant’s involvement in the conspiracy and the quantity of

drugs for which each defendant would be held liable for purposes of computing

that defendant’s sentencing guideline range. Because “Bland never signified an

intent to withdraw from the conspiracy (as he rejoined the . . . conspiracy

immediately upon release from incarceration),” the Court concluded that he was

“involved for the full three years” from October 20, 2003, through October 5, 2006

(147 weeks). The Court determined that approximately 9 ounces, or 225 grams of

crack, was sold during each week of the conspiracy. “Based on [Bland’s] role as a

seller, incarceration due to his . . . activities, and the fact that drug quantities being

distributed throughout his time in the conspiracy were ‘reasonably foreseeable,’”
                                            5
the Court found that the Government “demonstrated by a preponderance of the

evidence that Defendant Bland [was] responsible for accomplice attribution of the

average weekly crack sales[,]” totaling 37.4 kilograms of crack.

      This quantity of crack cocaine resulted in a base offense level of 38, which

was adjusted upwards by two levels to 40 because of a dangerous weapons

enhancement. Bland’s total offense level and his criminal history category of I

produced a guideline range of 292 to 365 months.

      At sentencing, Bland again challenged the quantification of crack for which

he was responsible for sentencing purposes, emphasizing that he was involved for

one week in 2003 before his arrest and for only “several months in ’06.” The

Court rejected his argument. It explained that Bland had spent time in jail, but that

“nearly as [he] went out the door [he] rejoined the conspiracy.” Reasoning that

Bland was “kind of in inactive status” during his incarceration, the Court

concluded that he had “never left the conspiracy.” As a result, Bland’s guideline

range did not change.     The Court granted a downward variance, imposing a

sentence of 192 months of imprisonment. Bland filed a timely notice of appeal.

                                         II.

      Bland contends that the District Court erred by denying his motion for a

judgment of acquittal because there was no evidence of his membership in the

conspiracy at any point from 2002 through 2007. In reviewing a district court’s

                                         6
denial of a Rule 29 motion, “we review the trial record in the light most favorable

to the prosecution to determine whether any rational trier of fact could have found

proof of guilt beyond a reasonable doubt based on the available evidence.” United

States v. Claxton, 685 F.3d 300, 305 (3d Cir. 2012) (citation, internal quotation

marks, and brackets omitted). The trial record demonstrates, and our brief factual

recitation confirms, that there is no merit to Bland’s argument. He either was

successfully recruited by Smith and Thompson or eagerly joined what he

understood to be a drug organization operating in two states.

                                        III.

      Bland asserts that, even if we conclude there was sufficient evidence to

uphold his conviction, the District Court erred in its computation of the quantity of

drugs attributable to him. “When reviewing the sentencing decisions of the district

courts, we exercise plenary review over legal questions about the meaning of the

sentencing guidelines, but apply the deferential clearly erroneous standard to

factual determinations underlying their application.” United States v. Collado, 975

F.2d 985, 990 (3d Cir. 1992) (citations, internal quotation marks, and brackets

omitted).

      In Collado, we explained that “whether an individual defendant may be held

accountable for amounts of drugs involved in reasonably foreseeable transactions

conducted by co-conspirators depends upon the degree of the defendant’s

                                         7
involvement in the conspiracy.” Id. at 995. We cautioned that “it is not enough to

merely determine that the defendant’s criminal activity was substantial. Rather, a

searching and individualized inquiry into the circumstances surrounding each

defendant’s involvement in the conspiracy is critical to ensure that the defendant’s

sentence accurately reflects his or her role.” Id.

      In United States v. Price, 13 F.3d 711, 732 (3d Cir. 1994), we addressed

Price’s argument that he was inappropriately credited for cocaine dispensed by the

conspiracy after he was imprisoned. We rejected “a per se rule that arrest

automatically bars attribution to a defendant of drugs distributed after that date.”

Id. Yet we agreed that “since ‘[t]he relevant conduct provision limits accomplice

attribution to conduct committed in furtherance of the activity the defendant agreed

to undertake,’ a defendant cannot be held responsible for conduct committed after

he or she could no longer assist or monitor his or her co-conspirators.” Id. (quoting

Collado, 975 F.2d at 997); see also United States v. Puig-Infante, 19 F.3d 929, 945

(5th Cir. 1994) (observing that “[b]ecause a defendant’s incarceration is not an

affirmative act on the part of a defendant, it cannot, by itself, constitute withdrawal

or abandonment” from a conspiracy, but that “incarceration may still have had

some effect on the foreseeability of the acts of his coconspirators” for sentencing

purposes).

      Here, the District Court rejected Bland’s argument that he should not be held

                                           8
liable for the amount of drugs sold during his incarceration and until he rejoined

the conspiracy at some point in 2006. It reasoned that Bland had not withdrawn

from the conspiracy and that he immediately rejoined the conspiracy after his

release. Whether Bland had withdrawn from the conspiracy, however, is not

determinative of whether he should be held liable for sentencing purposes for the

amount of drugs sold by his coconspirators during his incarceration and for that

period of time following his release when he had yet to return to his role as a street

seller.     Rather, that determination must be based on his involvement in the

conspiracy at the relevant period of time. Collado, 975 F.2d at 995. Although the

District Court appropriately conducted an individualized inquiry for each

defendant as Collado instructs, it did not focus on the circumstances surrounding

Bland’s involvement during either his incarceration or the eight month period

following his release. Id.

          Our review fails to reveal any evidence to support the District Court’s

accomplice attribution during Bland’s incarceration. There is no evidence that

Bland was involved in the conspiracy while in prison from October of 2003 until

January 31, 2006. In fact, during the March 5, 2010 hearing, the government

acknowledged as much, stating that there was “no evidence that [Bland] had any

contact with” his coconspirators during his incarceration. In the absence of some

evidence that Bland had any involvement in the conspiracy during his

                                          9
incarceration, see Collado, 975 F.2d at 995, we conclude that the District Court

erred by attributing to Bland the amount of drugs sold by the conspiracy for each

week that he was in prison.

      Furthermore, the evidence indicates that Bland was released from prison on

January 31, 2006 and then arrested on October 5, 2006. During that eight month

period, the trial record establishes that Bland was involved in the conspiracy

selling crack cocaine for only “a couple months” before his arrest. SA826. Yet the

District Court, without explanation, held Bland liable for the entire eight months of

drug activity following his release from prison.

      Accordingly, although we will affirm Bland’s conviction, we will vacate his

sentence and remand this matter for further fact finding with regard to accomplice

attribution when he was incarcerated and during the eight month period following

his release from prison.




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