                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2004

Jansen v. USA
Precedential or Non-Precedential: Precedential

Docket No. 02-4215




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                           PRECEDENTIAL               DANIEL I. SIEGEL
                                                      Assistant Federal Public Defender
          UNITED STATES
         COURT OF APPEALS                             D. TONI BYRD (Argued)
       FOR THE THIRD CIRCUIT                          Assistant Federal Public Defender
                                                      100 Chestnut Street, Suite 306
                                                      Harrisburg, PA 17101
                No. 02-4215                                  Attorneys for Appellant,
                                                             Robert John Jansen, Jr.

     ROBERT JOHN JANSEN, JR.,                         THOMAS A. MARINO
                       Appellant                      United States Attorney

                      v.                              THEODORE B. SMITH, III (Argued)
                                                      Assistant United States Attorney
   UNITED STATES OF AMERICA                           Federal Building
                                                      228 Walnut Street
                                                      Harrisburg, PA 17108
          On Appeal from the                                 Attorneys for Appellee,
       United States District Court                          United States of America
 for the Middle District of Pennsylvania
   Criminal Action No. 4:98-CR-240
   (Honorable James L. M cClure, Jr.)                                 OPINION



        Argued January 22, 2004                       Debevoise, United States Senior District
   Before: ALITO and CHERTOFF,                        Judge
   Circuit Judges, and DEBEVOISE * ,
       Senior District Court Judge                            Defendant, Robert John Jansen, Jr.,
                                                      filed a petition pursuant to 28 U.S.C. §
           (Filed: May 21, 2004)                      2255, asserting that his trial counsel was
                                                      ineffective for failing to argue at his
JAMES V. WADE                                         sentencing for drug possession with intent
Federal Public Defender                               to distribute that the amount of drugs in his
For the Middle District of Pennsylvania               possession intended for personal use
                                                      should not have been included in the base
                                                      offense level calculation. The District
       *
                                                      Court held that, assuming trial counsel was
         Honorable Dickinson R. Debevoise,
                                                      ineffective in this regard, defendant was
United States Senior District Judge for the
                                                      not prejudiced for the reason that there was
District of New Jersey, sitting by designation.

                                                  1
a strong connection between the drugs                nickname of “Louie.” The passenger was
defendant intended to distribute and any             another Hispanic male.
drugs he held for personal use, and
                                                             The troopers retrieved a plastic bag
therefore all amounts of drugs he
                                                     from defendant’s groin area. Subsequent
possessed should enter into the base
                                                     laboratory analysis disclosed that within
offense level computation. We hold, in
                                                     the bag were two smaller bags, one
agreement with the opinions of the other
                                                     containing 34.2 grams of cocaine and the
Courts of Appeals that have ruled upon
                                                     other containing 16.3 grams of crack
this issue, that when a conviction is for
                                                     cocaine. Defendant also had on his person
simple possession with intent to distribute,
                                                     $770 in currency and a pager. Shortly
the amount of drugs a defendant possessed
                                                     after the stop a drug detection canine was
for personal use must be determined and
                                                     brought to the scene, and the driver of the
may not be included in the base offense
                                                     Spectrum, DeHart, consented to a search.
level com putation .         Counsel was
                                                     There was discovered on the rear floor a
ineffective for failing to raise this issue at
                                                     black videocassette recorder (“VCR”)
the time of sentencing, and this failure may
                                                     which contained a number of plastic bags.
have resulted in prejudice to defendant.
                                                     Analysis later disclosed that these bags
The judgment of the District Court will be
                                                     contained a total of 448 grams of cocaine.
reversed and the case will be remanded for
a determination of the amount of drugs, if                  Neither a consent search nor a dog
any, which defendant possessed for                   sniff of the Camry disclosed any drugs,
personal use and, if appropriate,                    and consequently the troopers permitted
recomputation of defendant’s base offense            the two Hispanic males to proceed on their
level in accordance with this opinion.               way.
              I. Background                                 Shortly after defendant had been
                                                     searched and the drugs found on his person
       After midnight on June 30, 1998
                                                     he volunteered that he was going to have
Pennsylvania State troopers stopped a light
                                                     to find out “who told the police on him,”
blue Chevrolet Spectrum with two male
                                                     as there were only two people who knew
occupants and a silver Toyota Camry
                                                     “he made this run.” (II App. 157). He
which appeared to be accompanying the
                                                     added that only one of the two knew what
Spectrum and which also had two
                                                     kind of vehicle he drove, so he had it
occupants. The troopers had previously
                                                     “pretty much narrowed down.” (II App.
received information that the Spectrum
                                                     164). He also stated that he could offer
would be transporting illegal drugs from
                                                     information that would yield the troopers
the New York City area back to
                                                     three to four times the quantity of drugs
Pennsylvania.      Defendant w as the
                                                     the stop would yield. (Id.)
passenger in the Spectrum. Its driver was
Andrew DeHart. The driver of the Camry                     The troopers advised defendant of
was a Hispanic male who went by the                  his constitutional rights approximately

                                                 2
one-half hour after the stop. There was an           follow defendant from New York to
interval of time during which the two cars           Willow’s residence and receive payment
were searched and then defendant was                 from Willow.         Before leaving for
again advised of his constitutional rights.          Pennsylvania Louie would deliver to
(II App. 177). When asked what was in it             defendant a quantity of cocaine as payment
for him the troopers informed defendant              for his transportation services. (II App.
only that his cooperation would be made              179-80).
known to his sentencing judge. The
                                                             On October 13, 1998 a grand jury
defendant then stated that the cocaine
                                                     returned a one count indictment charging
found in his pants was “all for him,. . . that
                                                     defendant with distribution and possession
he was not going to deliver that to anybody
                                                     with intent to distribute cocaine and
in the area, [and] that it was strictly his.”
                                                     cocaine base and aiding and abetting in
(II App. 178)
                                                     violation of 21 U.S.C. § 841(a)(1) and 18
       Defendant also told the trooper who           U.S.C. § 2.        He proceeded to trial.
was questioning him that he had just gone            Testifying in his own defense, defendant
to New York City to meet an individual               recanted the incriminating statements he
named “Louie,” that Louie had given him              had made on the night of his arrest (II
an ounce of cocaine, that he had also                App. 219-36; III App. 277-87). At trial he
purchased the crack cocaine from Louie,              testified that the driver, DeHart, had called
and that these quantities of cocaine were            him and asked him to ride along with
the drugs seized from his pants (II App.             DeHart on a trip to New York, because
178-79, 233-34). Further, according to               DeHart did not like traveling alone (II
defendant, Louie, who was the person                 App. 221). He went along because he
driving the Camry, had also delivered to             needed cocaine to satisfy his own habit
him the VCR containing cocaine which he              (Id.) Defendant asserted that he knew
was to deliver to a man named Richy                  DeHart “was up to something” but he did
Willow in Middleburg, Pennsylvania, early            not know what it was. (Id.).            In a
that morning (II App. 179).                          somewhat contradictory vein he testified
                                                     that he knew the VCR contained cocaine,
       The usual procedure, according to
                                                     although he did not know how much, and
defendant, was for Willow to contact
                                                     that it would be delivered to Willow after
Louie in New York by telephone and place
                                                     being transferred to the vehicle that
a cocaine order, after which Louie would
                                                     followed them from New York (II App.
communicate with defendant to inform
                                                     226).
him that there was a package to pick up in
New York (II App. 179). Defendant                            Although defendant disavowed
would then drive to New York, take                   most of the incriminating statements he
delivery of a VCR containing cocaine and             had made on the night of his arrest, he
drive back to Pennsylvania in order to               reiterated his initial contention that the
deliver the VCR to Willow. Louie would               cocaine and crack cocaine seized from his

                                                 3
pants were for his own personal use. (II          why would[n’t] you get two ounces, bring
App. 228). He went to New York to                 it back when you can sell one of those two
obtain cocaine because it was cheaper             and make enough money to buy another
there. He admitted he introduced people           one or two ounces and use the other
to his sources and facilitated their              ounce?” (II App. 345).
purchases in order to obtain a cheaper
                                                         . . . [I]f you bring back an
price for his own drugs. (II App. 228-30).
                                                         ounce of cocaine and you
He was unemployed on June 30, 1998, but
                                                         break it down to eight balls
testified that he had paid $1,000 for the
                                                         and sell it at $150 each, you
nearly two ounces of cocaine and crack
                                                         can see that you can use half
cocaine seized from his pants.         He
                                                         and sell half [,] an eight ball
explained that the $770 seized from him at
                                                         [ ] being an eighth of an
the time of the stop was the proceeds of
                                                         ounce. You can sell it to
the sale of two cars that belonged to his
                                                         make enough money to buy
father. (II App. 238, 235).
                                                         another ounce on your own.
        On cross-examination defendant
                                                  (IV App. 346)
admitted that on occasion he would sell
some of what he brought back for himself                 The jury found defendant guilty. It
to finance his next purchase, cocaine being       did not, and was not required to, make a
much cheaper in New York. (II App. 283-           special finding as to whether the drugs
84). Specifically, defendant admitted that        found in defendant’s pants were possessed
he had sold one-eighth ounce quantities or        with intent to distribute.
“eight balls,” of cocaine in Milton for
                                                           Using the 1998 edition of the
approximately $150 and that he sold an
                                                  United States Sentencing Guidelines
“eight ball” of cocaine to an undercover
                                                  Manual the probation officers who
state trooper 30 days before his arrest on
                                                  prepared defendant’s presentence report
May 29, 1998. (II App. 285). Defendant
                                                  (“PSR”) calculated the drug quantity under
set his price so as to be able to use the
                                                  the drug trafficking guideline at U.S.S.G.
proceeds to purchase more cocaine. (II
                                                  § 2D1.1. The calculation included i) the
App. 287).
                                                  448 grams of powdered cocaine found in
       During his principal and rebuttal          the VCR at the time of arrest, ii) 50 ounces
closing arguments the Assistant United            of cocaine that defendant admitted he
States Attorney argued strenuously that           possessed for distribution on previous
both the cocaine contained in the VCR and         trips, iii) the 16.3 grams of crack cocaine
the cocaine and crack seized from                 found on defendant’s person that
defendant’s pants were possessed with             defendant told the trooper were for
intent to distribute. Citing the fact that        personal use, and iv) the 34.2 grams of
cocaine was much cheaper in New York              powdered cocaine found on defendant’s
the government asked rhetorically “. . .          person that defendant told the troopers

                                              4
were for personal use. These quantities,           In defendant’s circumstances his
when converted to marijuana equivalents,           sentencing range would have been 78 to 97
yielded a total weight of 705.94 kilograms         months. Even if only a portion of the
of marijuana. (PSR, par. 4-12).                    drugs found in defendant’s pants were
                                                   found to have been for personal use and
        Pursuant to U.S.S.G. § 2D1.1(c)(5)
                                                   were excluded from the base offense level
this amount fell within the 700 to 1,000
                                                   computation, defendant would have fallen
kilogram range, resulting in an offense
                                                   into a less than 700 to 1,000 kilogram
level of 30. An offense level of 30,
                                                   range, and his sentencing range would
combined with a criminal history category
                                                   have been less than 121 to 151 months. In
of III, produced a sentencing range of 121
                                                   any event, this contention was not raised in
to 151 months.
                                                   the District Court.
        At sentencing defendant’s counsel
                                                          Defendant appealed his conviction.
raised an objection to the computation of
                                                   The appeal focused on the suppression of
the offense level, arguing that the
                                                   evidence obtained during his arrest. The
uncharged “historical” distributions
                                                   Court of Appeals affirmed the judgment of
attributed to defendant should not be
                                                   the District Court.
included. The court rejected this argument
and sentenced defendant to 121 months                      On October 30, 2001 defendant
imprisonment.                                      filed an amended petition for post
                                                   conviction relief pursuant to 28 U.S.C. §
       At the time of sentencing the Courts
                                                   2255. He contended, among other things,
of Appeals for the Seventh and Ninth
                                                   that his trial counsel had been ineffective
Circuits had held that drugs possessed for
                                                   in failing to object to consideration of drug
personal use may not be included in
                                                   quantities which were for personal use. In
calculating a Guideline sentence for
                                                   two comprehensive opinions dated August
possession with intent to distribute under
                                                   22, 2002 and November 1, 2002,
U.S.S.G. § 2D1.1. United States v. Wyss,
                                                   respectively, the District Court addressed
147 F.3d 631 (7 th Cir. 1998); United States
                                                   the six claims that defendant advanced.
v. Kipp, 10 F.3d 1463 (9 th Cir. 1993).
                                                   The Court ordered that the petition be
Defense counsel did not argue that the
                                                   denied in its entirety and that there was no
drugs found in defendant’s pants were for
                                                   basis for issuance of a certificate of
personal use and should not be counted in
                                                   appealability.
computing the offense level. Had he
successfully argued that point, the drugs in               Relevant to the instant appeal is the
the VCR and the drugs previously                   portion of the District Court opinion that
distributed would have produced a total            dealt with defendant’s contention that his
marijuana equivalent of 373.1 kilograms.           trial counsel was ineffective for failing to
Marijuana in the range of 100 to 400               argue at the time of sentencing that the
kilograms produced an offense level of 26.         drugs found in his pants were for personal


                                               5
use and should not have been included in                  intertwined” with her attempted purchase
the offense level computation. The Court                  for distribution, the entire quantity should
noted that as of the date of its opinion the              be countable for sentencing purposes.
Court of Appeals for the Second and                       Fraser, 243 F.2d at 477. Applying the
Eighth Circuits had joined those of the                   reasoning of the Fraser dissent, the District
Seventh and Ninth Circuits in holding that                Court stated:
when calculating the base offense level for
                                                                 W e believe that the
a conviction of possession with intent to
                                                                 reasoning of the Fraser
distribute, a District Court must exclude
                                                                 dissent is applicable to
those drug quantities reserved for personal
                                                                 Jansen’s case.     Jansen’s
use. United States v. Williams, 247 F.3d
                                                                 possession of the crack
353, 355 (2 nd Cir. 2001); United States v.
                                                                 cocaine was part and parcel
Fraser, 243 F.3d 473, 475 (8 th cir. 2001)1 .
                                                                 of his attempt to distribute
The opinion also referred to the one Court
                                                                 the powder cocaine in the
of Appeals opinion which holds that
                                                                 VCR.       The crack was
personal use quantities may be included in
                                                                 obtained as a result of
the calculation of the base offense level.
                                                                 Jansen’s trip to New York.
United States v. Antonietti, 86 F.3d 206,
                                                                 Jansen received the crack
210 (11th Cir. 1996).
                                                                 from the person who gave
          The District Court disagreed with                      him the VCR.            The
the premise it attributed to the majority of                     connection between the
the Court of Appeals that “the act of                            drugs Jansen intended to
setting aside narcotics for personal                             distribu te (the powder
consumption is . . . not a part of a scheme                      cocaine in the VCR) and the
or plan to distribute these drugs. Williams,                     drugs Jansen allegedly
247 F.3d at 358.” (I App. 54). Instead the                       intended for his own use
District Court found persuasive the                              (the crack on his person)
reasoning of the dissent in Fraser. The                          was strong enough that his
dissent contended that when a defendant’s                        use of both drugs “occurred
attempted purchase of the drugs for                              during the commission of
p e r s o n a l u s e w a s “ i n e x t r ic a b ly              the offense of conviction.”
                                                                 Therefore, all amounts of
        1
                                                                 drugs possessed by Jansen
           After the District Court issued its
                                                                 were properly considered to
opinion the Court of Appeals for the Sixth
                                                                 be relevant conduct.
Circuit joined the courts which had held that
in a possession with intent to distribute case            (I App. 56)
possession of drugs for personal use could not
be considered relevant conduct for sentencing                    Recognizing that its decision
purposes. United States v. Gill, 348 F.3d 147             conflicted with the holdings of four courts
(6th Cir. 2003).

                                                      6
of appeals, the District Court stated that “a                  constituted deficient performance. Rather
valid question may be raised as to whether                     it held that even if performance were
counsel’s failure to object to our sentence                    deficient, defendant suffered no prejudice,
c a lc u l a t io n c o n s t it u t e d d ef i c ie n t       ruling that personal use quantities are not
performance.” (I App. 57). However,                            excluded from the base offense level
because the Court had concluded that all of                    computation in a possession with intent to
the drugs, including those found in                            distribute conviction. This ruling raises a
defendant’s pants, should be included, it                      question of law and is subject to plenary
found that defendant had suffered no                           review. Parrish v. Fulcomer, 150 F.3d
prejudice from any shortcomings of his                         326, 327 (3d Cir. 1998).
counsel, i.e., he “[had] failed to establish
                                                                            III. Discussion
that there is a reasonable probability that,
but for counsel’s failure to object, the                              To succeed on a claim of
result of the proceeding would have been                       ineffective assistance of counsel, a
different.” (Id.). The District Court                          defendant must show both that i) the
denied defendant’s claim of ineffective                        performance of counsel fell below an
assistance of counsel.                                         objective standard of reasonableness and
                                                               ii) the errors of counsel prejudiced the
       Defendant requested a certificate of
                                                               defense. Strickland v. Washington, 466
appealability from this Court. We granted
                                                               U.S. 668, 687-88, 691-92 (1994). To
the request on the issue whether
                                                               establish the first prong a defendant must
defendant’s counsel was constitutionally
                                                               “establish . . . that counsel’s performance
ineffective for failing to argue at his
                                                               was deficient.” Jermyn v. Horn, 266 F.3d
sentencing hearing that the drugs seized
                                                               257, 282 (3d Cir. 2001). “This requires
from his person should not have been
                                                               showing that counsel was not functioning
included in the base offense calculation for
                                                               as the 'counsel' guaranteed defendant by
possession with intent to distribute. This
                                                               the Sixth Amendment." (Id.).
appeal followed.
                                                                       In the circumstances of this case
 II. Jurisdiction and Scope of Review
                                                               defense counsel’s failure to raise the
       The District Court had subject                          personal use argument at the time of
matter jurisdiction of defendant’s petition                    sentencing must be deemed to constitute
for post-conviction relief pursuant to 28                      ineffectiveness. The District Court did not
U.S.C. § 2255. We have jurisdiction of his                     find otherwise and the government does
appeal pursuant to 28 U.S.C. §§ 1291 and                       not contend otherwise. From the time of
2253(a).                                                       his arrest until he testified at his trial
                                                               defendant maintained that the drugs found
       The District Court did not make a
                                                               in his pants were for personal use. There
finding with respect to Defendant’s
                                                               was evidence that he intended to sell some
contention that his counsel’s failure to
                                                               of those drugs in order to finance future
object to the sentencing computation

                                                           7
purchases. At trial the government did not         that trial counsel is ineffective for failing
argue that none of those drugs were for            to urge that a defendant was entitled to an
personal use; rather it argued that some of        arguably available minor role Sentencing
the drugs found in defendant’s pants were          Guideline reduction. United States v.
to be sold to enable him to continue to            Headley, 923 F. 2d 1079, 1084 (3 rd Cir.
obtain drugs for personal use.                     1991). By the same token where defense
                                                   counsel fails to object to an improper
       At the time of sentencing two
                                                   enhancement under the Sentencing
Courts of Appeals had held that drugs
                                                   Guidelines, counsel has rend ered
possessed for mere personal use are not
                                                   ineffective assistance. As the District
relevant to the crime of possession with
                                                   Court recognized, the controlling issue is
intent to distribute and should not enter
                                                   whether defendant suffered prejudice by
into the base offense level computation.
                                                   reason of this failure.
United States v. Wyss, supra; United
States v. Kipp, supra. One Court of                         If some or all of the drugs
Appeals had held that drugs possessed for          discovered on defendant’s person were for
personal use should be included in the base        personal use and if possession of drugs for
offense level computation in a possession          personal use should not constitute relevant
with intent to distribute case. United             conduct when a defendant is sentenced for
States v. Antonietti, 86 F.3d 206 (11th Cir.       possession with intent to distribute,
1996). However, Antonietti was not a               defendant suffered prejudice in this case.
mere possession case; it was a case that           Even a small reduction in the quantity of
included a charge of conspiracy to possess         drugs entering into the base offense level
with intent to distribute and thus arguably        computation would have placed defendant
was distinguishable from Wyss and Kipp.            in a less than 700 to 1,000 kilogram range.
Competent counsel would have advanced              It is for the District Court to determine the
at sentencing the contention that the drugs        amount of drugs, if any, which defendant
defendant claimed were for personal use            possessed for personal use. Whether such
should not enter into the computation of           possession constitutes relevant conduct for
the base offense level.                            the purpose of computing defendant’s base
                                                   offense level is a question of law that has
        Despite a strong presumption that
                                                   not yet been decided by this Court.
counsel’s performance was reasonable,
Strickland, 466 U.S. at 689, that                        Defining relevant conduct, U.S.S.G.
presumption is overcome here.          The         §1B1.3 reads in pertinent part:
conclusion that counsel’s performance was
                                                          (a) . . . unless otherwise
ineffective is not based on hindsight. The
                                                          specified, (i) the base
decisions in Wyss and Kipp were readily
                                                          offense level where the
available to him. Nor can any considered
                                                          guideline specifies more
sound strategy be discerned for failing to
                                                          than one base offense level .
raise the personal use issue. We have held

                                               8
 . . should be determined on                                    require grouping of multiple
the basis of the following:                                     c o u n t s , a ll a c t s a nd
                                                                omissions described in
(1)    (A)    all     acts    and
                                                                subdivisions (1)(A) and
              o m i s s i o n s
                                                                (1)(B) above that were part
              committed, aided,
                                                                of the same course of
              abetted, counseled,
                                                                conduct or common scheme
              c o m ma n d e d ,
                                                                or plan as the offense of
              induced, procured, or
                                                                conviction;2
              willfully caused by
              the defendant; and                        Applying these provisions, five
                                                 Courts of Appeals have held that in a
       (B)    in the case of a
                                                 possession for distribution case possessing
              jointly undertaken
                                                 drugs for personal use does not constitute
              criminal activity (a
                                                 relevant conduct and the quantity of such
              criminal plan,
                                                 drugs should not be included when
              scheme, endeavor, or
                                                 computing the base offense level. Only
              enterprise undertaken
                                                 the opinion in Antonietti and the dissent in
              by the defendant in
                                                 Fraser take a contrary view.
              concert with others,
              whether or not                            A common rationale runs through
              charged as a                       each of the five majority opinions. Each
              c o n s p i r ac y ) , a l l       contrasts the seriousness of the offense of
              r e a s o n a b l y                distributing drugs with that of possession
              foreseeable acts and               for one’s personal use and rejects an
              omissions of others                interpretation of the guidelines that would
              in furtherance of the              punish each of these offenses with equal
              jointly undertaken                 severity. For example, in Kipp the Court
              criminal activity,                 observed that “. . . failure to distinguish the
                                                 amount possessed for personal use from
       that occurred during the
                                                 the amount possessed for distribution
       commission of the offense
                                                 contravenes a fundamental principle of the
       of conviction, in preparation
                                                 Sentencing Guidelines - proportionality in
       for that offense, or in the
                                                 sentencing - because it would result in
       course of attempting to
                                                 sentencing a drug user who possessed 50
       a v oid d e t e c ti o n o r
                                                 grams for personal use and gave one away
       respo nsibility for that
                                                 more harshly than a drug dealer who
       offense;
(2)    solely with respect to                           2
       offenses of a character for                           These provisions in the 1998
                                                 Guidelines Manual are the same as the
       which §3D1.2(d) would
                                                 provisions in the current manual.

                                             9
possessed 49 grams for distribution.” 10        10 F.3d at 1465, 66 (footnote omitted).
F.3d at 1466. Although arriving at the          Similarly in Williams the Court held that
same conclusion, the various Courts have        “[u]nder U.S.S.G. § 1B1.3(a)(2), in
reached that destination by different           determining the quantity of drugs relevant
routes.                                         to a defendant’s offense level under the
                                                sentencing guidelines, only drugs ‘that
        Two of the cases, Kipp and
                                                were part of the same course of conduct or
Williams, rely upon Section (a)(2) of
                                                common scheme or plan as the offense of
U.S.S.G. §1B1.3. In Kipp the Court
                                                conviction’ are to be considered,” and that
stated:
                                                drugs possessed for personal use are not
      The guidelines instruct the               “part of the same course of conduct” or
      District Court to calculate               “common scheme” as drugs intended for
      the base offense level using              distribution. 247 F.3d at 357. The Court,
      only the quantity of drugs                as have the other Courts of Appeals,
      involved in the count of                  distinguished Antonietti on the basis that
      conviction and quantities                 Antonietti involved a conspiracy to
      that “were part of the same               possess with intent to distribute,
      course of conduct or part of              implicating different considerations, see
      a common scheme or plan                   U.S.S.G. §1B1.3(a)(1)(B).
      as the count of conviction.”
                                                        Two of the Courts, while agreeing
      U.S.S.G. § 1B1.3(a)(2).
                                                with the results in Kipp and Williams,
      Drugs possessed for mere
                                                reject reliance on Section (a)(2), and either
      personal use are not relevant
                                                expressly or by implication rely on Section
      to the crime of possession
                                                (a)(1) of U.S.S.G. § 1B1.3 for their
      with intent to distribute
                                                conclusion that possession for personal use
      because they are not “part of
                                                is not relevant conduct in a distribution
      the same course of conduct”
                                                case. They note that Section (a)(2) applies
      or “common scheme” as
                                                “solely with respect to offenses of a
      drugs intended for
                                                character for which § 3D1.2(d) would
      distribution. Accordingly,
                                                require grouping of multiple counts” and
      we hold that in calculating
                                                further note that simple possession is not
      the base offense level for
                                                one of the crimes listed in the grouping
      possession with intent to
                                                rule. As the Court stated in Gill:
      distribute, the district court
      must make a factual finding                      Simple possession is not
      as to the quantity of drugs                      “relevant” under Section
      possessed for distribution                       1B1.3(a)(2), as “part of the
      and cannot include any                           same course of conduct or
      amount possessed strictly                        common scheme or plan,”
      for personal use.                                because that section applies

                                           10
       only if the two offenses can                  conduct in a possession with intent to
       be grouped under Section                      distribute case. The opinion set forth
       3D1.2(d). See Hill, 79 F.3d                   common sense reasons for excluding
       at 1482. Simple possession                    possession of drugs for personal use as
       is not one of the crimes                      relevant conduct.
       listed in this grouping rule
                                                            In Gill the Court, having held
       that triggers the application
                                                     Section (a)(2) to be inapplicable, relied on
       of that relevant conduct
                                                     Section (a)(1) for its holding that
       section.
                                                     possession of drugs for personal use is not
348 F.3d at 153. Wyss is to the same                 relevant conduct when computing the base
effect. Citing Section (a)(2) the Court              offense level in a possession for
stated that “[t]o count as relevant conduct          distribution case:
under the federal sentencing guidelines, a
                                                            Uncharged conduct may be
drug offense . . . must be part of the same
                                                            considered in calculating the
course of conduct or common scheme or
                                                            sentencing range under the
plan, as the offense of conviction.” Then
                                                            Sentencing Guidelines only
he noted that “[i]t can be that only if it is
                                                            if the conduct is “relevant.”
part of the same group of offenses for
                                                            Returning to the Sentencing
sentencing purposes.” 147 F.3d at 632.
                                                            G u i d e l i n es M anua l’s
This suggests that the Court was stating
                                                            language - - which we
that if Section (a)(2) were applicable
                                                            hesitate to describe as
possession of drugs for personal use would
                                                            “plain,” although it is
be relevant conduct as part of the same
                                                            unequivocal - - the
course of conduct or common scheme.
                                                            defendant’s possession of
This, of course, is contrary to the opinions
                                                            drugs for personal use
in Kipp and Williams which held that
                                                            cannot be considered an
Section (a)(2) is applicable but that
                                                            “act[ ] . . . that occurred
possession for personal use is not part of
                                                            during the commission of
the same course of conduct or common
                                                            the offense of conviction, in
scheme to posses for distribution. The
                                                            preparation for that offense,
Court in Wyss concluded, however, that
                                                            or in the course of
Section (a)(2) was not applicable because
                                                            attem pti n g t o a v o id
possession for personal use cannot be
                                                            detection or responsibility
grouped with other offenses.
                                                            for that offense” under
       Wyss, after rejecting reliance on                    Section 1B1.3(a)(1), since
Section (a)(2), did not refer to Section                    the offense of conviction
(a)(1), but by implication must have                        required an intent to
concluded that Section (a)(1) did not                       distribute to accompany the
render mere possession for use relevant                     act of drug possession under

                                                11
       21 U.S.C. § 841(a).                           to distribute. In a conspiracy the amount
       P o s s e s s i n g d r u g s f or            of drugs involved is unaffected by the use
       personal use was not part of                  that a defendant makes of the drugs. Gill,
       o r c o n n e c te d t o th e                 348 F.3d at 154, Williams, 247 F.3d at
       commission of, preparation                    357-58, Fraser, 243 F.3d at 475 n.4; Wyss,
       for, or concealment of the                    147 F.3d at 632. The dissent in Fraser
       distribution type offense.                    advanced the position that Fraser’s
                                                     “purported purchase of methamphetamine
348 F.3d at 153 (citations omitted).
                                                     for her own use, purchased at the same
       It is not entirely clear whether the          time as the methamphetamine she intended
majority opinion in Fraser relied on                 to sell is tested under the more general
Section (a)(2) for its holding that                  relevant conduct provision contained in §
possessing drugs for personal use is not             1B1.3(a)(1)(A). Under § 1B1.3(a)(1)(A),
relevant conduct in a possession for                 relevant conduct includes ‘all acts . . . that
distribution case.     The opinion cited             occurred during the commission of the
approvingly both Wyss, which rejected                offense of conviction.’” 243 F.3d at 476-
reliance on Section (a)(2), and Kipp,                77 (emphasis in original). The dissent
which relied on Section (a)(2).         By           emphasized that “[t]he attempted drug
implication the majority opinion holds that          purchase was one transaction involving a
Section (a)(1) does not require that                 single, fungible quantity and a single type
possessing drugs for personal use be                 of drug” and, relying on Antonietti,
deemed relevant conduct in a possession              concluded that “whether Ms. Fraser
with intent to distribute case.                      purchased some of the drugs for her
                                                     personal use ‘make[s] no difference’ in
       By one route or another five Courts
                                                     computing her sentence under the
of Appeals have reached the same
                                                     Guidelines.” 243 F.3d at 477.
conclusion. Only the Court of Appeals for
the Eleventh Circuit has held that when                     The District Court in the instant
calculating the base offense level under §           case found the reasoning of the dissent
2D1.1 of the Guidelines drugs possessed              persuasive. The Court noted that all the
for personal use should be included.                 seized drugs derived from a single
United States v. Antonietti, supra. Kipp             purchase in New York City, although
was decided before the decision in                   some of the drugs were transported in a
Antonietti. Each of the relevant Court of            VCR and some were stored in defendant’s
Appeals cases that was decided after                 pants. It, therefore, held that, applying
An tonietti distinguished An tonietti,               U.S.S.G. § 1B1.3(a)(1)(A), all of the drugs
pointing out that it was not a simple                should be included in the computation of
possession with intent to distribute case;           the base offense level.
rather it dealt with not only possession
                                                           The government urges that we
with intent to distribute but also conspiracy
                                                     adopt the rule advanced in the Fraser

                                                12
dissent and applied by the District Court,            personal use is qualitatively very different
contending that “the operation of section             from the crime of possession with intent to
1B1.3(a)(1) is not qualified by the                   distribute and merits a significantly
operation of section 1B1.3(a)(2), and the             different level of punishment. Were the
base offense level was p roperly                      quantity of drugs possessed for use added
‘determined on the basis of all acts . . .            to the quantity possessed for distribution
committed [ ]. . . by the defendant . . . that        serious sentencing anomalies could result.
occurred during the commission of the                 As stated in Kipp, it would contravene “a
offense of conviction.” (Govt. Brief at 29,           fundamental principle of the Sentencing
30). The government argues that U.S.S.G.              G u i d e l in e s - p r o p o r t i o n a l i t y i n
§ 1B1.3(a)(1)(A) says nothing about                   sentencing.” 10 F.3d at 1466.
whether an act need be part of a scheme or
                                                              The government has argued, and
plan to distribute drugs in order to be
                                                      several Courts have agreed, that Section
counted as relevant conduct. Rather,
                                                      (a)(2) is inapplicable because it applies
under § 1B1.3(a)(1)(A), if the act
                                                      “solely with respect to offenses of a
“occurred during the commission of the
                                                      character for which §3D1.2(d) would
offense of conviction,” it is relevant. If
                                                      require grouping of multiple counts,” and
this argument were accepted defendant’s
                                                      the offense of simple possession is not
possession for personal use occurred
                                                      groupable under that section.            We
during the commission of the crime of
                                                      conclude, however, that the “offenses” to
possession with intent to distribute and
                                                      which reference is made in Section (a)(2)
should, therefore, be considered relevant
                                                      are the offenses, or offense, of conviction,
conduct. In such event he would not have
                                                      in this case possession of drugs for
been prejudiced by the failure of his
                                                      distribution covered by U.S.S.G. §2D1.1 (a
counsel to have raised the issue at the time
                                                      groupable offense). An offense within the
of sentencing.
                                                      meaning of Section (a)(2) is not the crime
        Contrary to the government’s                  constituting asserted relevant conduct, in
contentions, we conclude that Section                 this case mere possession of drugs covered
(a)(2) is applicable, that mere possession            by U.S.S.G. §2D2.1. In other words
of a drug for personal use is not part of the         Section (a)(2) defines what constitutes a
same course of conduct or common                      defendant’s relevant conduct when the
scheme as the offense of possession with              offense of conviction is a groupable
intent to distribute drugs and that Section           offense, regardless of the nature of the
(a)(1) is not applicable.                             alleged relevant conduct. In this respect
                                                      we disagree with the Courts of Appeals
       As observed by the five Courts of
                                                      which have held that because simple
Appeals that have reached a similar
                                                      possession of drugs is not a groupable
ultimate conclusion, this result is in accord
                                                      offense Section (a)(2) is inapplicable.
with an overall objective of the Sentencing
Guidelines. The crime of possession for                        This conclusion and our further

                                                 13
conclusion that Section (a)(2) stands on its          of mere possession of drugs and the
own and is not expanded or superseded by              offense of possession with intent to
the provisions of Section (a)(1) finds                distribute. In light of these differences one
support in the Application Notes to                   who happens to possess drugs for his own
U.S.S.G. §1B1.3. Application Note 1                   personal use is not engaged in a “common
treats the two sections as two distinct               scheme or plan” with or the “same course
provisions 3 . Application Note 2 deals               of conduct” as, the perpetrators (including
extensively with Section a(1)(A) and (B).             himself) of a distribution scheme. This
Application Notes 3 through 10 largely                conclusion is in accord with the Guideline
govern Section (a)(2). Application Note 3             Commentary discussing these terms4 .
provides in part, that “‘[o]ffenses of a
character for which §3D1.2(d) would
                                                             4
require grouping of multiple counts,’ as                        9. “Common scheme or plan” and
used in subsection (a)(2), applies to                 “same course of conduct” are two closely
offenses for which grouping counts would              related concepts.
be required under § 3D1.2(d) had
                                                               (A) Common scheme or plan. For two
defendant been convicted of multiple
                                                      or more offenses to constitute part of a
counts.” That describes the circumstances             common scheme or plan, they must be
in the present case, in which the drug                substantially connected to each other by at
distribution offe nse is groupable .                  least one common factor, such as common
Application Note 10 emphasizes the                    victims, common accomplices, common
different approaches of Sections (a)(1) and           purpose, or similar modus operandi. For
(a)(2) stating in part “[s]ubsections (a)(1)          example, the conduct of five defendants who
and (a)(2) adopt different rules because              together defrauded a group of investors by
offenses of the character dealt with in               computer manipulations that unlawfully
subsection (a)(2) (i.e., to which §3D1.2(d)           transferred funds over an eighteen-month
applies) often involve a pattern of                   period would qualify as a common scheme or
                                                      plan on the basis of any of the above listed
misconduct that cannot readily be broken
                                                      factors; i.e., the commonality of victims (the
into discrete, identifiable units that are
                                                      same investors were defrauded on an ongoing
m eaningful for the purposes of                       basis), commonality of offenders (the conduct
sentencing.”                                          constituted an ongoing conspiracy),
        We have alluded above to the                  commonality of purpose (to defraud the group
significant differences between the offense           of investors), or similarity of modus operandi
                                                      (the same or similar computer manipulations
                                                      were used to execute the scheme).
       3
          “. . . Under subsections (a)(1) and                 (B) Same course of conduct. Offenses
(a)(2), the focus is on the specific acts and         that do not qualify as part of a common
omissions for which the defendant is to be            scheme or plan may nonetheless qualify as
held accountable in determining the applicable        part of the same course of conduct if they are
guideline range . . .”                                sufficiently connected or related to each other

                                                 14
       Thus we agree with the majority of                          If any significant portion of the
the Courts of Appeals to address the issue                 drugs found in defendant’s pants was for
(Kipp, Wyss, Williams, Fraser majority                     personal use he was prejudiced by the
and Gill) that possession of drugs for                     failure of his counsel to object to the
personal use is not part of the same course                inclusion of such drugs in the computation
of conduct or common scheme or plan as                     of his base offense level. The quantity of
possession with intent to distribute and                   drugs that defendant held for personal use,
therefore is not relevant conduct in a                     if any, will require a finding by the District
distribution case5 .                                       Court.
                                                                   The Fraser dissent notes a problem
                                                           with which district courts will have to deal
as to warrant the conclusion that they are part
                                                           when applying the requirement to exclude
of a single episode, spree, or ongoing series of
                                                           drugs possessed for personal use in
offenses. Factors that are appropriate to the
determination of whether offenses are                      distribution cases: “[t]o require district
sufficiently connected or related to each other            courts to parse out personal use quantities
to be considered as part of the same course of             whenever such an allegation is made (and
conduct include the degree of similarity of the            I am sure it will often now be made) will
offenses, the regularity (repetitions) of the              needlessly burden them with yet another
offenses, and the time interval between the                finely tuned quantity decision to make
offenses. When one of the above factors is                 under the Sentencing Guidelines system.”
absent, a stronger presence of at least one of             242 F.3d at 477. The relevant cases
the other factors is required. For example,                illustrate this problem. In Kipp the
where the conduct alleged to be relevant is                defendant admitted to possessing 80 to 90
relatively remote to the offense of conviction,
                                                           grams of cocaine but argued that he
a stronger showing of similarity or regularity
                                                           possessed all but five or six grams for his
is necessary to compensate for the absence of
temporal proximity. The nature of the                      own personal use. In Fraser the defendant
offenses may also be a relevant consideration              was arrested when she attempted to
(e.g., a defendant’s failure to file tax returns in        purchase         456.6       grams       of
three consecutive years appropriately would                methamphetamine. At the sentencing
be considered as part of the same course of                hearing she testified that she intended to
conduct because such returns are only required             consume the majority of the drugs; the rest
at yearly intervals).                                      she intended to distribute to family and
                                                           friends.     The government produced
U.S.S.G. §1B1.3(a)(1), Application Note 9.
        5
          In his concurring opinion Judge Alito
expresses reservations about this conclusion               Appeals is consistent with the structure and
and notes that “[i]t seems likely that the                 commentaries of the Sentencing Guidelines,
Sentencing Commission has not considered                   Judge Alito’s suggestion that the Commission
this issue.” While we have concluded that the              address the issue specifically as soon as
position of the majority of the Courts of                  possible makes good sense.

                                                      15
evidence that the defendant had sold               taken by most of the courts of appeals
methamphetamine in the past. In Williams           regarding the application of U.S.S.G. §
the defendant, a chronic drug user, claimed        1B1.3(a)(1) and (2) in this context is not
that a major part of the 68.9 grams seized         easy to reconcile with the language of
upon his arrest was for personal use. In           those provisions, and there seem to be
Gill the defendant contended that of the           reasonable policy arguments on both sides
35.4375 grams of cocaine in his possession         of the question. On the one hand, it may
only 6.8 grams was possessed with intent           be argued that drugs possessed solely for
to distribute. Each case was remanded so           personal use should not have the same
that the district court could determine the        sentencing consequences as those
amount of drugs possessed for personal             possessed for distribution. On the other
use and for re-sentencing based upon only          hand, when it has been proven that a
the drugs possessed for distribution.              defendant possessed drugs with the intent
                                                   to distribute, the difficulty of deciding
       Fortunately the already existing
                                                   whether some portion of those drugs was
record in the present case permits the
                                                   possessed solely for personal use may
District Court to make a reasonable
                                                   counsel against a rule requiring such a
calculation of the amount, if any, of the
                                                   determination.
drugs contained in defendant’s pants that
were intended for personal use without the
necessity of a full blown evidentiary
                                                          It seems likely that the Sentencing
hearing.
                                                   Commission has not considered this issue.
            IV. Conclusion                         If it has, it certainly has not made that
                                                   clear. If it has not, it should. In view of
       We have concluded that when
                                                   the position taken by the great majority of
sentencing a defendant for possession of
                                                   the courts of appeals, I concur in this case,
drugs with intent to distribute the court
                                                   but I urge the Sentencing Commission to
should not include for the purpose of
                                                   address the issue as soon as possible.
computing the base offense level drugs
which the defendant possessed for
personal use. Accordingly, the order of
the District Court will be reversed and the
case remanded for further proceedings in
accordance with this opinion.


ALITO, Circuit Judge, concurring.
              The issue presented in this
case is one that should be resolved by the
Sentencing Commission. The position

                                              16
