                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-18-1995

United States v Edmonds
Precedential or Non-Precedential:

Docket 93-1890




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             UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


      N0S.   93-1890, 93-1914, 93-1920, 93-1947


                UNITED STATES OF AMERICA

                           v.

                    THEODORE EDMONDS,
                Appellant in No. 93-1890


                UNITED STATES OF AMERICA

                           v.

              LORENZO DUNCAN, a/k/a TARIQ
                    Lorenzo Duncan,
                Appellant in No. 93-1914


                UNITED STATES OF AMERICA

                           v.

                     CARLTON LOVE,
                Appellant in No. 93-1920


                UNITED STATES OF AMERICA

                           v.

                       CORA LOVE,
                Appellant in No. 93-1947


   On Appeal From the United States District Court
       For the Eastern District of Pennsylvania
(D.C. Crim. Action Nos. 92-cr-00504-1, 92-cr-00504-6,
            92-cr-00504-5, 92-cr-00504-16)


                Argued October 24, 1994
BEFORE:   STAPLETON, HUTCHINSON and GARTH, Circuit Judges

             (Opinion Filed   April 18, l995 )




                     Michael R. Stiles
                     U.S. Attorney
                     Walter S. Batty, Jr.
                     Assistant U.S. Attorney
                     Valli F. Baldassano
                     Assistant U.S. Attorney
                     Jeffery W. Whitt (Argued)
                     Assistant U.S. Attorney
                     James Swain
                     Assistant U.S. Attorney
                     615 Chestnut Street
                     Suite 1250
                     Philadelphia, PA 19106

                          Attorneys for Appellee

                     Dominick J. Sorise (Argued)
                     33830 Harper
                     Clinton Township, MI 48035

                          Attorney for Theodore Edmonds
                          Appellant in No. 93-1890

                     Thomas Colas Carroll (Argued)
                     Carroll & Cedrone
                     Suite 750 The Curtis Center
                     Independence Square West
                     Philadelphia, PA 19106

                          Attorney for Lorenzo Duncan
                          Appellant in No. 93-1914

                     Anthony T. Chambers (Argued)
                     3650 Penobscot Building
                     Detroit, MI 48226

                          Attorney for Carlton Love
                          Appellant in No. 93-1920
                           John Royal (Argued)
                           One Kennedy Square, Suite 1930
                           Detroit, MI 48226
                                and
                           Cornelius Pitts
                           3650 Penobscot Building
                           Detroit, MI 48226

                                Attorneys for Cora Love
                                Appellant in No. 93-1947




                        OPINION OF THE COURT




STAPLETON, Circuit Judge:


            Theodore Edmonds, Lorenzo Duncan, Carlton Love, and

Cora Love appeal from their convictions and sentencings after a

jury trial on various drug-related charges.    The jury found all

four appellants guilty of distributing cocaine and heroin, in

violation of 21 U.S.C. § 841(a)(1), and of conspiracy to

distribute cocaine and heroin, in violation 21 U.S.C. § 846.

Three defendants, Edmonds, Duncan, and Carlton Love, were found

guilty of knowingly and intentionally using a communication

facility in committing, causing, and facilitating the conspiracy

to distribute cocaine and heroin, in violation of 21 U.S.C.

§ 843(b).   Edmonds also was convicted of money laundering under

18 U.S.C. § 1956, and of managing, supervising, and organizing a

continuing criminal enterprise ("CCE"), under 21 U.S.C. § 848.

On top of those convictions, the jury returned a verdict of
$27,000,000 for the government against Edmonds, $4,500,000

against Carlton Love, and $4,000,000 against Duncan under the

criminal forfeiture statute, 21 U.S.C. § 853.    These appeals have

been consolidated.

          The appellants raise numerous issues, three of which

present close and important questions warranting this opinion.

The first concerns Edmonds' conviction on the charge of managing,

supervising, and organizing a continuing criminal enterprise in

violation of 21 U.S.C. § 848.    Following our decision in United

States v. Echeverri, 854 F.2d 638 (3d Cir. 1988), we hold that

the trial court committed reversible error when it refused to

instruct the jury that it had to unanimously agree which of

Edmonds' alleged drug violations constituted "the continuing

series of violations" required for conviction on that count.

          The second issue concerns the sentences imposed on

Carlton Love and Cora Love.   Those two appellants argue that the

drug quantities attributed to them for sentencing purposes were

not justified by the evidence presented at trial.    We agree.   An

appropriate drug-weight estimate will lower Carlton Love's U.S.

Sentencing Guideline offense level; accordingly, we will remand

his case for resentencing.    It is unclear whether an appropriate

drug-weight estimate would change Cora Love's offense level, so

we will remand her case for further findings and, if necessary, a

reconsideration of her sentence.
          The final issue involves the district court's admission

into evidence of certain drug paraphernalia seized during the

execution of a search warrant.   Carlton Love claims that the

search warrant was issued on the basis of an affidavit containing

information allegedly obtained in violation of his Fourth

Amendment rights.   We find no Fourth Amendment violation and

accordingly cannot fault the challenged evidentiary ruling.
                                I.

           This case involves a large conspiracy to distribute

cocaine and heroin through the Federal Express system.     The

conspirators, for over a year, would ship drugs from the Los

Angeles area via Federal Express to points in the East Coast and

Midwest.   Various members of the conspiracy then would distribute

the drugs, collect money in return, and ship the money received

back to California, again using Federal Express.     Headed by

Edmonds, the conspiracy sold more than 1500 kilograms of cocaine

and more than 2 kilograms of heroin to distributors in Chester,

Pennsylvania; Philadelphia, Pennsylvania; Wilmington, Delaware;

Wilmington, North Carolina; Detroit, Michigan; New Orleans,

Louisiana; Toledo, Ohio; and elsewhere.

           Edmonds arranged the drug shipments from the Los

Angeles area with the help of codefendant Reinard Mozell and one

or two others.   Tyria H. Ekwensi managed the distribution

operation for the East Coast and the Detroit area.    During the

early part of the conspiracy, Edmonds would send shipments to

Ekwensi's address in Mount Laurel, New Jersey.     Ekwensi passed

the drugs on to Duncan, her sole distributor at that time, who

then sold the drugs on consignment.    As the conspiracy

progressed, Ekwensi also began to distribute the drugs to Russell

Freeman, Jr. and to Carlton Love.     At one point, Edmonds started

to send the shipments directly to addresses provided by both

Duncan and Freeman, Jr., as well as Ekwensi.
           During the early part of these operations, Ekwensi

would secret monies received from selling the drugs on her person

and personally deliver the money to Edmonds in California.

Edmonds eventually changed that procedure and Ekwensi proceeded

to send packages of money by Federal Express to various Edmonds-

controlled Los Angeles-area addresses.    Carlton Love, Duncan, and

Freeman, Jr. assisted Ekwensi with preparing the money for

shipment and delivering the boxes to Federal Express.

           The scheme began to unravel when a Federal Express

employee at the Philadelphia airport became suspicious of a

package that had been presented for shipment to the Los Angeles

area.   He opened the package and discovered that it contained a

large amount of currency.   Shortly thereafter, the same Federal

Express employee noticed a similar package.   He alerted the

Federal Express security department, which in turn alerted law

enforcement authorities.    The package was searched and found to

contain approximately $200,000 in cash.

           In the course of the next several months, the FBI

checked Federal Express records and seized a number of Federal

Express packages containing cash sent from the Philadelphia area

to the Los Angeles area as well as a number packages containing

drugs sent from the Los Angeles area to the Philadelphia area.

On May 29, 1992, the government secured the first of a series of

wire and electronic communications warrants on telephones

subscribed to or used by subjects of the investigation.   The
wiretaps led to seizures and physical surveillance.   This

evidence, coupled with the ultimate cooperation of a number of

the suspects of the investigation, led to the indictment of

sixteen individuals, some from the Los Angeles area and others

from the Philadelphia area.   Ekwensi and Mozell testified for the

government at trial.

          The appellants were tried, convicted and sentenced in

the U.S. District Court for the Eastern District of Pennsylvania.

We have jurisdiction to hear these appeals under 28 U.S.C.

§ 1291.



                               II.

          The jury found Edmonds guilty of managing, supervising,

or organizing five or more persons in a continuing criminal

enterprise, in violation of 21 U.S.C. § 848.1   Edmonds gives two


1
 . Section 848(a)(1) makes it a crime to engage in a "continuing
criminal enterprise." Section 848(b) provides that a person
engages in a "continuing criminal enterprise if --

     (1) he violates any provision of this subchapter or
subchapter II of this chapter the punishment for which is a
felony, and

     (2) such violation is a part of a continuing series of
violations of this subchapter or subchapter II of this
   chapter --
               (A) which are undertaken by such person
          in concert with five or more other persons
          with respect to whom such person occupies a
          position of organizer, a supervisory
          position, or any other position of
          management, and
reasons why that conviction should be reversed.    His first is

that the government failed to meet the statute's "numerosity"

requirement; that is, he contends that the government failed to

prove that he managed, supervised, or organized five or more

people in connection with the underlying drug felonies.    Our

examination of the record reveals that there in fact was

sufficient evidence to support a finding that Edmonds managed,

supervised, or organized five or more people in connection with

the underlying drug felonies.

          Edmonds' second reason for challenging his CCE

conviction is more substantial.    He contends that the trial court

erroneously refused to instruct the jury that it had to

unanimously agree which of the alleged violations constituted the

"continuing series of violations" required for a conviction on

the CCE charge.   We agree that the trial court's refusal to give

such an instruction requires a reversal of Edmonds' conviction on

the CCE charge.



                                  A.

          To obtain a conviction under the continuing criminal

enterprise statute, 21 U.S.C. § 848, the government must prove

that the defendant, through his or her supervisory role over a

criminal enterprise of five or more others, is criminally

(..continued)
               (B) from which such person obtains
          substantial income or resources."
responsible for a "continuing series" of felony violations of the

federal narcotics laws.     A "series" in this context is

established by proof of three or more violations.    See United

States v. Echeverri, 854 F.2d 638, 642-43 (3d Cir. 1988).

"Continuing," on the other hand, means that the three violations

must somehow be related; it is well-established, for example,

that clearly "isolated," and accordingly unrelated, violations of

the federal drug laws will not support a CCE conviction.    United

States v. Jones, 801 F.2d 304, 307 (8th Cir. 1986) (noting that

three separate, unrelated, drug sales would not establish a

continuing series); see also United States v. Baker, 905 F.2d

1100, 1104 (7th Cir.) (stating that "an unrelated conspiracy does

not count [for CCE purposes] because it cannot be part of the

'continuing' series"), cert. denied, 498 U.S. 876, and cert.

denied, 498 U.S. 904 (1990), and cert. denied, 498 U.S. 1030

(1991).   Furthermore, the law is clear that the "continuing

series" requirement is an element of the crime.     See, e.g.,

United States v. Grayson, 795 F.2d 278, 283-84 (3d Cir. 1986)

(stating that the government must prove that a felony violation

of the narcotics law is "part of a continuing series of

violations"), cert. denied, 479 U.S. 1054, and cert. denied, 481
U.S. 1018 (1987).   As a result, to convict, a jury must agree

unanimously that the defendant committed a continuing series of

three drug-related criminal offenses.     See, e.g., In re Winship,

397 U.S. 358, 364 (1970).
           The district court in this case instructed the jury

that "[a] continuing series of violations requires proof beyond a

reasonable doubt that three or more violations occurred and that

they, those three or more, were related to each other."    Edmonds

asked the district court to explain to the jury that it must

unanimously agree which three of any narcotics violations they

found to have occurred were related to each other for the

purposes of the "continuing series" requirement.   The district

court declined to so instruct the jury, and Edmonds insists that

this was reversible error.

           The defendant in Echeverri also was charged with a CCE

offense.   He requested the following jury instruction:
           The second element the government must prove
           beyond a reasonable doubt is that this
           offense was part of a continuing series of
           violations of the federal narcotics laws. A
           continuing series of violations is three or
           more violations of the federal narcotics laws
           committed over a definite period of time.
           You must unanimously agree on which three
           acts constitute the continuing series of
           violations.


Echeverri, 854 F.2d at 642.   We held that it was reversible error

for the district court to decline to give this or a similar

instruction. We explained:
          In the absence of a specific unanimity
          instruction directed to the government's
          several claims, it was apparent that the jury
          need not have unanimously agreed that any
          particular criminal act had been committed by
          the defendant.

                              * * * *
          Here, the jury was instructed that the
          continuing series element required them to
          find three violations of the drug laws . . .,
          yet as a result of the district court's
          refusal to give the requested instruction,
          there is no assurance that the jury
          unanimously agreed that the same narcotics
          violations occurred.


Id. at 642-43.
          There is a difference between the facts of this case

and those presented in Echeverri.    The jury convicted Edmonds of

each of the eight substantive counts involving the drug felonies

alleged to constitute the continuing series.     As a matter of

logic, therefore, the jurors must have unanimously agreed that

Edmonds committed every felony in the alleged "series."     Thus,

the government maintains, the principles requiring a reversal in

Echeverri do not require a reversal in this case.

          This misunderstands Edmonds' argument.     Edmonds does

not dispute that the jury unanimously found he committed every

one of the eight underlying narcotics violations.     His argument

instead is that the instruction given by the trial court did not
require the jury to unanimously agree that the same three or more

violations were "related" to each other for the purposes of the

CCE statute.     He thus contends that the mere fact that the jury

returned a guilty verdict on the substantive counts involving the

eight underlying offenses does not, by itself, establish that the

jury found that the eight offenses, or any particular subset of

three or more of the eight offenses, were related to each other.
          It is possible, as Edmonds insists, that the jury,

while finding that all eight violations occurred, did not

actually agree on which violations were related to each other.

For example, six jurors could have felt that violations A, B, and

C (but no others) were related and the other six jurors could

have concluded that D, E, and F (but no others) were related.

Thus, as in Echeverri, it is possible that the jurors failed to

unanimously agree that Edmonds was responsible for three related

criminal acts and that the government therefore failed to meet

its burden of proving a "continuing series" of violations.



                                B.

          The government maintains that United States v. Jackson,

879 F.2d 85 (3d Cir. 1989), requires that we affirm Edmonds' CCE

conviction.   The defendant in Jackson, who was also charged with

a CCE offense, claimed that the jurors had to decide unanimously

on the identities of his five underlings before they could

conclude that the government had met its burden of showing that

he acted in a "supervisory role."    We agreed with the defendant

that whether there were five or more underlings was in fact an

essential element of the offense and that the jury accordingly

had to reach a consensus on that fact.   Id. at 88.   We

nevertheless rejected the notion that the jury must unanimously

agree on the identities of the five underlings.    Id.
           The result in Jackson follows from the general rule

that jurors need not be in "complete agreement as to the

collateral or underlying facts which relate to the manner in

which the culpable conduct was undertaken."   Id. (emphasis

added); see generally Schad v. Arizona, 501 U.S. 624, 631-37

(1991) (noting that the Constitution does not require jurors to

"agree upon a single means of commission"); Griffin v. United

States, 502 U.S. 46, 49-57 (1991).   The elements of the crime

proscribed by § 848, as viewed by the court in Jackson, are that

(1) the defendant committed three drug felonies, and (2) each of

those felonies were (a) related to each other, (b) undertaken in

concert with five or more people whom the defendant organized or

managed, and (c) produced substantial income or resources for the

defendant.   Satisfaction of element (2)(b) requires proof that a

group of a certain size be involved in the commission of the

felony.   The identities of the people making up the group of

underlings for the purposes of the CCE statute merely relate to

the manner in which the culpable conduct is undertaken, however.

Put simply, the CCE statute does not care who the five people

are, it only cares that the jurors agreed on the essential facts

of "whether the requisite size and level of control existed."

Jackson, 879 F.2d at 89; see also United States v. Bafia, 949
F.2d 1465, 1471 (7th Cir. 1991) (holding that it is not necessary

that the same five people be involved when each of the criminal

acts constituting the series is committed).
             Under traditional principles of our criminal

jurisprudence, the legislature, within constitutional limits not

here implicated, can define a crime as it chooses.    Schad, 501

U.S. at 632-37.    Once the elements have been described, however,

each must be proved to a unanimous jury beyond a reasonable

doubt.   Echeverri, 854 F.2d at 642-43.   When a statute makes it a

crime to engage in particular conduct on a single occasion and a

jury unanimously agrees that a single event occurred involving

conduct of the defendant and a state of mind that fit the

statutory definition of the offense, we do not insist that the

jury unanimously agree on the precise manner in which the offense

was committed.     The same analysis applies when the crime charged

involves a series of events.     When a jury unanimously agrees that

a single set of events occurred involving actions of the

defendant and a state of mind that fit the statutory definition

of the offense, we do not insist that the jury unanimously agree

on the manner in which the offense was committed.     Thus, in

Jackson, the jury unanimously agreed that a single set of events

occurred and that individually and collectively those events fell

within the statutory definition: the defendant participated in

each event, each event was a violation of a controlled substance

statute, each was related to two or more other such violations,

each was engaged in by the defendant through an organization of

the requisite size, and each produced substantial gain for the

defendant.    This was sufficient.   It was not necessary that the
jury unanimously agree as to the identities of the five

underlings in each instance.

          Here we have quite a different situation.   We do not

know that the jury unanimously agreed that Edmonds participated

in a single set of events that met all of the elements of the

statutory definition.   Because no event can meet the statutory

criteria unless the distribution involved was related to two or

more other distributions, the district court's charge leaves us

without the requisite assurance that no juror had a reasonable

doubt concerning Edmonds' guilt of the CCE charge.    A juror may

have had a reasonable doubt about the "relatedness" of one or

more of the events that his or her colleagues thought constituted

a series of three related drug offenses.

          Thus, Jackson is inapposite here.   To apply Jackson in

this context would be to disregard as irrelevant the portions of

the CCE statute requiring that the underlying criminal acts be of

a particular character, i.e., that they be related.   That is

precisely the result we rejected in Echeverri.   The required

underlying criminal acts, including their "relatedness," are

"facts necessary to constitute the crime" -- not merely

immaterial means -- and therefore must be proven individually.

In re Winship, 397 U.S. 358, 364 (1970).   Consistent with

Jackson, the jury need not agree on how the three violation

events were related, but they must agree that the defendant

participated in three specific events and that those events were
related.    Not requiring unanimity on which three or more criminal

acts are related leaves open the possibility that Edmonds could

have been convicted without unanimous juror agreement that he

engaged in a "continuing series" of criminal acts, that is,

without unanimous agreement that he committed the crime charged.

            We are aware that the U.S. Court of Appeals for the

Seventh Circuit has declined to follow our decision in Echeverri.

United States v. Canino, 949 F.2d 928, 947-48 (7th Cir. 1991),

cert. denied, 112 S. Ct. 1701, and cert. denied, 112 S. Ct. 1940,

and cert. denied, 112 S. Ct. 1954 (1992).    The court there argued

that the result in Echeverri "is at odds with the purpose of the

[CCE statute] which is interested in punishing a defendant whom

the jury is convinced was involved in a related series of drug

activity with relevant frequency.     It is the defendant's

demonstrated frequency in participating in conspiratorial drug

offenses that is the focus of the [CCE] offense, rather than any

particularization of the acts used to demonstrate 'continuous.'"

Id. at 948 n.7.

            We respectfully disagree with the Seventh Circuit's

analysis.    Implicit in its approach is the view that the

predicate offenses making up a "continuous series" of violations

and their "relatedness," like the identities of the underlings,

are immaterial "means" and not material elements of the crime

requiring specific juror agreement.    The court reasoned, for

example, that "the exact specification by unanimous jury consent
of any particular three of a greater number of offenses is

irrelevant to any theory about why punishment should be enhanced

for such uniquely antisocial activity."    Id. at 948.   We believe

Congress drafted the CCE statute as it did because it regarded

the existence of a series of related offenses as material to

whether the substantially enhanced punishment there provided is

appropriate.   Moreover, in the absence of evidence that Congress

intended to depart from the traditional approach of our criminal

jurisprudence, we decline to attribute to it an intent that this

enhanced punishment be visited on a defendant where the jury is

unable to agree beyond a reasonable doubt that the defendant

participated in three specific events constituting such a series.

           The relevant point is not, as the Seventh Circuit views

it, whether a person who commits three related drug violations

with the requisite sized group on May 12th, 13th, and 14th of a

given year is as culpable as if he or she commits similar

violations with the requisite sized group on June 12th, 13th, and

14th.   The relevant point is that a person cannot be held

criminally responsible if half of the jury believes the defendant

committed the conduct described by the statute on May 12th, 13th,

and 14th, but not in June, and the other half believes the

defendant committed the conduct described by the statute on June

12th, 13th, and 14th, but not in May.     Cf. Schad, 501 U.S. at 651

(Scalia, J., concurring) (stating that "moral equivalence" would

not justify upholding an assault conviction where a portion of
the jury may have believed the defendant assaulted X on Tuesday,

while the other half may have believed the defendant assaulted Y

on Wednesday).

           This case is governed by Echeverri and its forbearers,2

not Jackson.   We are confronted here with a situation in which

the trial court correctly charged that a "continuing series,"

that is, "three or more violations . . . related to each other,"

was an element of the offense and that the jury must unanimously

agree on each element of the offense.   However, the trial court

failed to further explain what unanimity meant in this context.

Although this may not have been plain error had Edmonds not

requested a more specific explanation, he did so request.3



                                C.

           That the trial court erred in not giving the

appropriate unanimity instruction does not end our inquiry,

however.   We still must determine whether we could affirm

Edmonds' CCE conviction on the ground that the failure to give
2
.   E.g., United States v. Beros, 833 F.2d 455 (3d Cir. 1987).
3
 . In United States v. Anderson, 859 F.2d 1171 (3d Cir. 1988),
we held that the failure to give a further explanation in a
similar situation in the absence of a request was not plain
error. The appellant did not make the same argument made here
about the requirement of relatedness. Rather, he complained
about the failure to instruct specifically that three criminal
acts were required and that the jury had to unanimously agree on
which three criminal acts occurred. We found that the district
court erred but that its error did not result in plain error
because the jury unanimously found the appellant guilty of three
counts of distribution and one count of conspiracy. Id. at 1175.
the proper instruction was harmless error.   Given the evidence in

this case, it is difficult to believe that a rational jury who

was convinced beyond a reasonable doubt that Edmonds committed

all eight of the violations alleged to constitute the "continuing

series," would then have failed to conclude that each and every

one of those acts were related.   The evidence that the jury must

have credited to convict Edmonds of the eight crimes alleged to

constitute the series established that there was a single, on-

going scheme and that Edmonds used the same packers and method of

distribution throughout the relevant period.   Nevertheless,

we conclude that the Supreme Court's decision in Sullivan v.

Louisiana, 113 S. Ct. 2078 (1993), precludes us from engaging in

a harmless error analysis.

          Sullivan concerned the propriety of appellate courts

engaging in harmless error analysis where the jury instructions

gave an unconstitutional definition of reasonable doubt.4   The

Court ruled that permitting harmless error analysis in that


4
 . The trial judge in Sullivan gave a definition of reasonable
doubt essentially identical to the definition the Supreme Court
had held unconstitutional in Cage v. Louisiana, 498 U.S. 39
(1990) (per curiam). The charge held unconstitutional in Cage
explained that reasonable doubt "must be such doubt as would give
rise to grave uncertainty . . . . It is an actual substantial
doubt. . . . What is required is not an absolute or mathematical
certainty, but a moral certainty." Id. at 40. The Court in Cage
ruled that given this instruction "a reasonable juror could have
interpreted the instruction to allow a finding of guilt based on
a degree of proof below that required by the Due Process Clause."
Id. at 41.
situation would violate the defendant's Sixth Amendment right to

a jury trial. It explained:
          Since [the jury never found the defendant
          guilty beyond a reasonable doubt,] there has
          been no jury verdict within the meaning of
          the Sixth Amendment [and] the entire premise
          of Chapman [v. California, 386 U.S. 18
          (1967),] review is simply absent. There
          being no jury verdict of guilty-beyond-a-
          reasonable-doubt, the question whether the
          same verdict of guilty-beyond-a-reasonable-
          doubt would have been rendered absent the
          constitutional error is utterly meaningless.
          There is no object so to speak, upon which
          harmless error scrutiny can operate. The
          most an appellate court can conclude is that
          a jury would surely have found petitioner
          guilty beyond a reasonable doubt -- not that
          the jury's actual finding of guilty beyond a
          reasonable doubt would surely not have been
          different absent the constitutional error.
          . . . The Sixth Amendment requires more than
          appellate speculation about a hypothetical
          jury's action, or else directed verdicts for
          the State would be sustainable on appeal; it
          requires an actual jury finding of guilty.


Sullivan, 113 S. Ct. at 2082.

           The relatedness requirement is an element of the CCE

offense.   Accordingly, the government was required to prove, and

the jury was required to unanimously find, relatedness beyond a

reasonable doubt.   See Sullivan, 113 S. Ct. at 2080.    The jury

instruction in this case therefore permitted the jury to return a

nonunanimous verdict on an element of the offense.      Thus, as in

Sullivan, there has been no actual jury finding of guilty on the

CCE charge against Edmonds.   Under Sullivan, we cannot rule that
the error was harmless.5    It follows that Edmonds' CCE conviction

must be reversed.



                                 III.

            Carlton Love and Cora Love maintain that the trial

court improperly attributed to them for sentencing purposes a

larger quantity of narcotics than was justified by the trial

evidence.   When reviewing a district court's sentencing

decisions, a court of appeals has plenary review over legal

questions about the meaning of the Sentencing Guidelines.       United

States v. Fuentes, 954 F.2d 151, 152-53 (3d Cir.), cert. denied,

112 S. Ct. 2950 (1992).     The factual determinations underlying

the application of the Guidelines are reviewed under the clearly

erroneous standard.   Id.    When a district court employs an

appropriate legal standard, we will not disturb its determination


5
 . Rose v. Clark, 478 U.S. 570, 580 (1986), does not require a
different result. There, the Court held that a jury-instruction
error erecting a presumption regarding an element of the offense
(malice), while violating Fourteenth Amendment, nevertheless was
harmless error. Although the jury there was instructed to
presume malice from certain predicate facts, it still was
required to find the existence of those facts beyond a reasonable
doubt. The Court concluded that a finding of the underlying
facts there was "functionally equivalent" to finding the presumed
element of malice. Here, on the other hand, the government asks
us to assume relatedness from the mere fact that Edmonds was
found guilty on each of the underlying violations. This would
require us to engage in pure speculation -- to impose our "view
of what a reasonable jury would have done." Sullivan, 113 S. Ct.
at 2082. To do so would impermissibly permit the "wrong entity
[to] judge the defendant guilty." Rose, 478 U.S. at 578. That,
we cannot do.
of the amount of drugs attributable to a particular defendant

unless that determination is clearly erroneous.   United States v.

Nagi, 947 F.2d 211, 215 (6th Cir. 1991), cert. denied, 112 S. Ct.

2309, and cert. denied, 112 S. Ct. 2309 (1992).



                                A.

          The district court determined that Carlton Love was

involved in a conspiracy to distribute at least 500 kilograms of

cocaine and 3 kilograms of heroin.   The government originally

attributed nine different shipments or requests for shipments of

cocaine to Carlton Love.   The government now has admitted that it

has insufficient evidence to attribute to Carlton Love the final

100 kgs shipment of cocaine.   Our calculations reveal that this

fact alone will reduce his offense level to 40.   Accordingly, we

will remand his case for resentencing.6



                                B.


6
 . Based on a cocaine attribution of over 500 kgs and a heroin
attribution of 3 kgs, the district court determined Carlton to
have a base offense level of 40 in accordance with the drug
quantity table contained in USSG §2D1.1(c)(2). At a criminal
history category of I, and with a two-level increase for
possession of a firearm in connection with drug-trafficking
activities, Carlton's sentencing range was 360 months to life.
The district court sentenced Carlton to 360 months. If less than
500 kgs of cocaine are attributed to Carlton, he falls under
§ 2D1.1(c)(3), which reduces his base offense level from 40 to
38, and, with the two-level increase for possession of a firearm,
yields a sentence of 292 to 365 months.
             The district court attributed four separate shipments

of cocaine to Cora Love.7    Each shipment originated in the

Philadelphia area and was transported to Detroit in rental cars

driven by Russell Freeman, Sr.     Cora Love was among those who met

Freeman, Sr. at a Detroit hotel at the end of each of these four

trips.   She also was the person who each time paid Freeman, Sr. a

courier fee.    The government argues that the record supports a

finding that the first shipment weighed 25 kgs and that the

second through fourth shipments weighed 50 kgs each.

Accordingly, it attributes a total of 175 kgs of cocaine to Cora

Love for sentencing purposes.     Our review of the record has

disclosed the following evidence with respect to each of the four

shipments.

             Russell Freeman, Jr. testified that his father made

four trips to Chicago in late 1991 and 1992 and that on each



7
 . Cora Love denies that any of these four shipments should be
attributed to her, claiming that she was an unwitting courier.
The record contains ample evidence supporting the district
court's conclusion that she knew exactly what she was doing,
however. She drove a car on four occasions to pick up sealed
suitcases of cocaine upon their arrival in Detroit. She also
handed Russell Freeman, Sr. money for the drugs. In addition,
she brought Ekwensi a package of Bounce Fabric Softener sheets
from the store Cora Love managed so that Ekwensi could package
drug money for transport. (Bounce apparently makes the presence
of drug residue on the money more difficult to detect.) Further,
Cora Love at one point told Ekwensi, as the two were about to
meet Freeman, Sr., not "to look too obvious" and to "just look
casual about it." (App. at 754.) We accordingly conclude that
the trial court's ruling that Cora Love was involved in these
four shipments was not clearly erroneous.
occasion his father transported between 35 kgs and 50 kgs of

cocaine.

           The first shipment -- Russell Freeman, Sr. testified

that he first transported cocaine to Detroit in December 1991.

That first shipment consisted of two suitcases.    Ekwensi

testified that she met Freeman, Sr. upon his arrival in Detroit

and that she carried the lighter of the two suitcases to the car

driven by Cora Love.   Ekwensi further testified that "there was

about 12 keys in one of the pilot cases" (the one she carried)

and that "[Freeman, Sr.] carried the heavy one."    (Supp. app. III

at 55a.)   The district court attributed 25 kgs of cocaine to Cora

Love for this first shipment, and Cora Love does not contest this

attribution.

           The second shipment -- The second shipment also

occurred in December 1991, "just before Christmas."   Freeman, Sr.

testified that he again delivered two suitcases, although he did

not state how much each suitcase weighed.   The government

contends that this evidence, coupled with Freeman, Jr.'s

statement that each of his father's deliveries weighed between

35 kgs and 50 kgs, supports the district court's finding that the

shipment contained 50 kgs of cocaine.

           The third shipment -- Freeman, Sr. delivered the third
shipment to Detroit in January 1992.    Ekwensi estimated that the

shipment weighed "[a]nywhere from 40 to 50 keys, leaning more

toward 50 keys."   From this, the government concluded that Cora
Love should be attributed an additional 50 kgs.    The district

court agreed.

           The fourth shipment -- The court found that the final

shipment attributable to Cora Love also weighed 50 kgs.     The most

precise evidence regarding this shipment came from Ekwensi, who

indeed testified at first that the shipment weighed 50 kgs.     She

then stated that she lowered the price she charged Carlton Love

for the drugs after he pointed out that each "kilogram" was

missing four ounces.   One ounce weighs 28.349 grams.

Accordingly, if one takes into account the reduction, the

shipment weighed roughly 5.5 kgs less than the 50 kgs that the

court attributed to Cora Love on the fourth shipment.

           The district court thus attributed 175 kgs to Cora

Love.   Any attribution of more than 150 kgs results in an offense

level of 38, the offense level utilized in determining Cora

Love's sentence.   We believe there is evidence from which a fact

finder, with appropriate findings and explanations, could

properly attribute to Cora Love either more or less than 150 kgs.

We cannot, however, sustain the district court's allocation based

on the current record.

           Attributing quantities of drugs for sentencing purposes

is an oft-recurring task for district judges.     The magnitude of

the consequences that can flow under the Sentencing Guidelines

from one attribution rather than another make this a very

important undertaking.   It can also be a very difficult one, in
part because precise drug-weight information is frequently not

available.   Because the available relevant information is often

imprecise, the Guidelines recognize that the sentencing scheme

they contemplate cannot work unless judges are authorized to

estimate the quantity of drugs possessed or distributed on a

particular occasion.   See, e.g., USSG. § 2D1.1 application note

12 ("where there is no drug seizure or the amount seized does not

reflect the scale of the offense, the court shall approximate the

quantity of the controlled substance").   We have cautioned,

however, that the necessity of estimating drug weights for

sentencing purposes "is not a license to calculate drug amounts

by guesswork."   United States v. Paulino, 996 F.2d 1541, 1545

(3d Cir.), cert. denied, 114 S. Ct. 449, and cert. denied,

114 S. Ct. 618 (1993).

          The government has the burden of providing a rational

basis for an assessment of drug weight and a sentencing court has

the responsibility of identifying a rational basis for the

attribution it ultimately makes, assuming that basis is not

otherwise obvious from the record.   In the absence of such

evidentiary support and an appropriate explanation, the

Guidelines sentencing process can exact grave sanctions on a

wholly arbitrary basis.   While a sentencing judge cannot insist

on being satisfied that a particular weight is more likely than

not the historically correct weight, he or she can insist that

the government provide information from which the court can
conclude that more likely than not the historically correct

weight equaled or exceeded the weight attributed.   See Paulino,

996 F.2d at 1545 (stating that "the sentencing court must

carefully scrutinize the government's proof to ensure that its

estimates are supported by a preponderance of the evidence"); see

also United States v. Collado, 975 F.2d 985, 998 (3d Cir. 1992)

(same).

          When a law enforcement officer or lay person familiar

with a drug indicates that he or she has observed or handled a

quantity of drugs and estimates that it weighed five kilograms,

there is a rational basis for the court to estimate the weight at

five kilograms.   When such a person estimates the weight to be

between four and six kilograms and it is apparent that he or she

is simply taking into account that he or she is making an

approximation, there is a similar rational basis for the court to

estimate the weight at five kilograms.   But where a knowledgeable

person provides a range of weights, this alone does not provide a

rational basis for attributing to the defendant the highest

weight in that range.

          Thus, in this case, we do not believe that Ekwensi's

testimony that the cocaine in the third shipment weighed

"[a]nywhere from 40 to 50 keys" provides a rational basis for

attributing 50 kilograms to Cora Love even though Ekwensi added

the modification "leaning more towards 50 keys."    Nor do we

believe that Freeman, Jr.'s testimony, without more, can supply a
rational basis for concluding that the weight of the cocaine on

the second trip was 50 kgs.    As with Ekwensi's testimony about

the third shipment, a sentencing judge may not arbitrarily select

the highest figure in an estimated range of weights.

            Moreover, we believe Freeman, Jr.'s testimony would not

warrant a judge in assigning the average of 35 kgs and 50 kgs, or

42.5 kgs to each of the four shipments.    It seems apparent from

its context that Freeman, Jr.'s 35 kgs to 50 kgs statement was

not intended either as an estimate of a constant amount of drugs

transported on each of the four occasions or as an estimate of

the average weight of the shipments.    Rather, he appears to be

saying that the smallest shipment was 35 kgs, the largest was 50

kgs, and the other two shipments were no smaller or larger.    If

the district court concludes that this is the import of Freeman,

Jr.'s testimony, that testimony would not justify an approach

which would merely strike an average between 35 kgs and 50 kgs.

            There is evidence, we believe, from which a trier of

fact could conclude that Freeman, Jr. packed his father's car

with cocaine before the start of each trip and that he was

keeping track of the quantity of drugs being delivered in each

instance.   If the district court concludes that this was the case

and that the import of his testimony was as we have hypothesized,

we believe Freeman, Jr.'s testimony would provide a rational

basis for a finding that the total weight of the four shipments
was at least 155 kgs (i.e., one shipment of 35 kgs, one of 50 kgs

and two of at least 35 kgs).

          Turning to the evidence concerning the fourth shipment,

we conclude that Ekwensi's testimony cannot, without further

explanation, support a finding that 50 kgs were transported on

this occasion.   Without the benefit of an explanation from the

district court, we can think of no rational basis on which a

trier of fact could accept her initial testimony that the weight

was 50 kgs without also crediting her acknowledgement that she

was forced to drop the price because each kilogram was missing

four ounces.

          As the court observed in United States v. Sepulveda, 15

F.3d 1161, 1199 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714

(1994), a "sentencing court remains free to make judicious use of

properly constructed averages."   But this does not relieve the

government of its burden of providing the court with sufficient

information to permit a conclusion that the average more likely

than not is equal or less than the historically accurate weight

of the drugs attributable to the defendant.   While we believe it

may be possible to conclude from this record that, more likely

than not, the four shipments totalled in excess of 150 kilograms,

that conclusion would have to be based on factual findings that

the district court has yet to make.   Accordingly, we will remand

Cora Love's case to the district court for more fact finding and

possible resentencing.
                               IV.

           On August 12, 1992, FBI agents attempted to arrest

Carlton Love at his residence in an apartment complex on

Riverside Drive in Southfield, Michigan, pursuant to an arrest

warrant.   The warrant application was supported by an affidavit

that summarized the results of the FBI's six months of

investigation.   That affidavit provided information about thirty-

one Federal Express shipments containing illegal drugs sent to

addresses associated with the nationwide cocaine- and heroin-

distribution operation and referred to telephone conversations

which had been intercepted in which Carlton Love and Ekwensi

discussed drug and money transactions.   Included with the

excerpts of the conversations between the co-conspirators were

the agent's suggested interpretations of the dialogue, based upon

his experience and expertise in drug trafficking investigations.

Based upon the information in the affidavit, the magistrate

properly concluded that there was a fair probability Carlton Love

was engaged in illegal drug trafficking.

           When the FBI agents entered Carlton Love's apartment

with the warrant for his arrest, they did not find him there.

They did, however, find drug paraphernalia in plain view.    This

evidence was seized after the agents secured a search warrant

based on the information contained in the arrest warrant
affidavit and what they had learned during their visit to Carlton

Love's apartment.

          Love acknowledges that "an arrest warrant founded on

probable cause implicitly carries with it the limited authority

to enter a dwelling in which the suspect lives when there is a

reason to believe the suspect is within."    Payton v. New York,

445 U.S. 573, 603 (1980).   He insists, however, that the agents

had no reasonable grounds for believing that he was at home when

they entered his apartment with the arrest warrant.    He maintains

that, as a result, the search warrant was invalid and the items

seized under its authority should have been suppressed.    The

district court concluded that the agents had reason to believe

Carlton Love was in his apartment on the morning of August 12th,

and we agree.

          The agents' investigation disclosed that Carlton Love

signed the lease and paid the rent for apartment 1725 at 23600

Riverside Drive.    The gas service account was in his name and the

telephone was listed in the name of his mother.    On August 11th,

a management representative of the apartment complex, during a

visit from the agents, confirmed that Carlton Love lived in the

apartment and that he used the black Ford Mustang then parked

immediately in front of the apartment.

          The agents asked the management representative to call

if Carlton Love was seen in the complex.    Later that day, the

agents were called and advised that he had been observed exiting
his apartment and departing the area.    Thus, as of the evening of

August 11th, the agents had current information indicating that

Carlton Love was then living in the apartment.

          The agents came to the apartment to arrest Carlton Love

at 6:45 a.m., early enough that it was unlikely someone living in

the apartment would have already departed for the day.      On their

arrival, they observed the black Mustang parked in front of the

apartment.    They maintained surveillance as other residents of

the complex departed for their daily activities.      By 9:30 a.m.

all of the vehicles near the apartment except the black Mustang

were gone.    No one had left the Love apartment.   At approximately

9:40 a.m., the agents entered the exterior door and proceeded to

the interior door of apartment 1725.    Simultaneously, they called

the telephone number of the apartment, knocked on the door, and

announced their presence.    There was no response.   The agents

"thought that there was a good possibility that [Love] was in

there hiding."

          The agents then called an Assistant United States

Attorney to secure his opinion as to whether they had probable

cause to enter the apartment to search for Carlton Love.      After

receiving an affirmative response, they again called, knocked,

and announced themselves at the interior door to the apartment.

Receiving no response, they entered using a key provided by the

management.
          Once inside and not finding anyone in the living room,

they proceeded to the master bedroom and closet where they

thought Carlton Love might be hiding.   On the floor of the closet

was a large cardboard box containing "plastic baggy material" and

a vinyl case similar to cases they had previously seen used to

carry three beam scales.   They left the apartment and sought a

search warrant.   Carlton Love was arrested the following day

while boarding an airplane.

          Carlton Love stresses that the last sighting of him

prior to the entry of the agents had been of him leaving the

apartment.   In his view, from this fact and the fact that the

agents received no response to their simultaneous call and knock,

the agents undoubtedly realized, or should have realized, that he

was not in the apartment on the morning of August 12th.   In our

view, while the information available to the agents clearly did

not exclude the possibility that Carlton Love was not in the

apartment, the agents had reasonable grounds for concluding that

he was there.   Normally, a person who is currently living at an

apartment returns there at some point to spend the night and does

not leave prior to 6:45 a.m.   The presence of the black Mustang

immediately in front of the Love apartment tended to confirm what

one would normally expect and this expectation was not dispelled

by the fact that someone probably involved in a drug operation

did not appear when the agents announced themselves at his door.
                               V.

          We have considered the remaining issues raised by the

appellants and have concluded that they do not warrant a reversal

of their convictions or a change in their sentences.8



                               VI.

          For the foregoing reasons, we will reverse the judgment

of the district court against Theodore Edmonds on the charge of

managing, supervising, and organizing a continuing criminal

enterprise, in violation of 21 U.S.C. § 848.   The district

court's sentences of Cora Love and Carlton Love will be vacated

8
 . Those remaining issues, as articulated by the appellants,
are: First, all the appellants maintain that the trial court
erred in admitting wiretap evidence at trial, alleging that both
the affidavits in support of the wiretaps and the orders
authorizing the wiretaps did not meet the requirements of 18
U.S.C. § 2518. Second, all appellants maintain that they were
denied a fair trial because the trial judge persistently
interfered with and placed improper limitations on defense
counsels' efforts to mount a defense. Third, all appellants
except for Cora Love claim that the trial court erred when it
instructed the jury that the appropriate measure of forfeiture
was the "gross proceeds" received by the various defendants.
Fourth, Carlton Love argues that the trial court for sentencing
purposes incorrectly concluded that he possessed a firearm in
connection with drug-trafficking activities. Fifth, Duncan
appeals his sentencing, arguing (1) that the district court
incorrectly attributed a larger portion of the narcotics to him
than was justified and (2) that the court used the wrong standard
when it rejected his claim that he played a minor role in the
conspiracy which resulted in accomplice attribution. Finally,
Duncan argues that the district court committed plain error when
it admitted his co-conspirators' guilty pleas on the issue of
credibility.
and their cases will be remanded for further sentencing

proceedings consistent with this opinion.    We will affirm the

judgments of the district court in all other respects.9




U.S. v. Edmonds, Duncan, Love & Love

Nos. 93-1890, 1914, 1920 & 1947

HUTCHINSON, Circuit Judge, Concurring.



           I concur with the result the Court reaches in these

cases and with much of the reasoning in Judge Stapleton's fine

opinion.   Specifically, I agree with the Court that United States

v. Echeverri, 854 F.2d 638, 642-43 (3d Cir. 1988), requires us to

vacate Theodore Edmonds' conviction of managing, supervising and

organizing a continuing criminal enterprise ("CCE") in violation

of 21 U.S.C.A. § 848 (West 1981 & Supp. 1994).    See Opinion of

9
 . After oral    argument in this case Cora Love and Carlton Love
filed a motion   to add an additional issue on appeal. Their
motion did not   state adequate grounds explaining why they failed
to raise these   issues earlier, however. Accordingly, their
motion will be   denied.
the Court, Part II, at 7-20; IOP 9.1.    I write separately,

however, to note that if this particular issue were a matter of

first impression, I would be inclined to follow the reasoning of

the Seventh Circuit in United States v. Canino, 949 F.2d 928,

947-48 (7th Cir. 1991), cert. denied, 112 S. Ct. 1701, and cert.

denied, 112 S. Ct. 1940, and cert. denied, 112 S. Ct. 1954

(1992).

            Echeverri precludes me from following that course.

Nevertheless, I believe Echeverri can lead to results that are

inconsistent with the purpose of the CCE statute and does so in

this case where the jury convicted Edmonds of all the substantive

counts involved in all of the predicate felonies.   I recognize

that the district court could have easily avoided the unanimity

problem if it had not refused to give the jury instruction the

defense requested on the need for unanimity in all respects

material to a CCE case, including specifically those offenses

that the jury believed were "related."    Nevertheless, the Court

concedes:   "As a matter of logic, . . . the jurors must have

unanimously agreed [in this case] that Edmonds committed every

felony in the alleged `series,'" but then goes on to conclude

this does not establish unanimity on relatedness.   Opinion of the

Court, Part II, at 11.   I agree with the Court this latter

conclusion is a corollary of Echeverri.   See id. at 7-20.

            I am dubitante on the Court's conclusion that harmless

error analysis is foreclosed by Sullivan v. Louisiana, 113 S. Ct.
2078 (1993).   See Opinion of the Court, Part II, at 18-20.

Regardless, I believe the tension, which the Court recognizes,

between Echeverri and United States v. Jackson, 879 F.2d 85 (3d

Cir. 1989) warrants reconsideration of this unanimity requirement

as it relates to a continuing criminal enterprise.   Therefore,

because Echeverri is a controlling precedent, I concur in the

Court's disposition of Edmonds' appeal.

          In all other respects, I am in full agreement with the

reasoning in the Court's opinion.
U.S. v. Edmonds, Duncan, Love & Love,
Nos. 93-1890, 1914, 1920 & 1947



GARTH, Circuit Judge, Concurring in Part and Dissenting in Part:

            I concur in all but one of the conclusions reached by

the majority.     And while I share Judge Hutchinson's concerns

regarding the Echeverri doctrine, and believe that the conceptual

tension between Echeverri and Jackson calls for further

resolution, I agree that Echeverri and our Internal Operating

Procedure 9.1, which precludes us from overturning an earlier

panel's position, constrain our disposition of the present

matter.   I therefore agree that Edmonds' conviction must be

reversed.

             The only aspect of the majority opinion with which I

differ concerns the decision to vacate Cora Love's sentence and

remand her case for resentencing by the district court.       I agree

that arbitrariness in drug-quantity attributions cannot be

tolerated.     I am also in full accord with the guidelines and
principles ably set forth by the majority to achieve the

objective of determining a rational basis on which to predicate a

defendant's sentence. See Opinion of the Court, Part III.B.

             However, as I read the record, any appropriate

calculation of the amount of cocaine attributable to Cora Love

must exceed the threshold of 150 kgs specified in U.S.S.G.
§ 2D1.1(c)(3).10   I believe that the record provides ample

support for the very "rational basis" which the majority requires

in order to uphold Cora Love's sentence.       Indeed, I find that it

cannot otherwise be read.    I thus believe it unnecessary to

remand and require the district court to reconsider Cora Love's

sentence.    For this reason, I respectfully dissent.

            As is detailed by the majority, the record reflects

four shipments attributable to Cora Love as follows:


Shipment           Supporting           Quantity - giving
 Number            Testimony         the benefit of the record
               (kgs per shipment)         to Cora Love
________________________________________________________________

One                 Freeman, Jr.: 35-50.          25 kgs
                    Ekwensi: 25.

Two                 Freeman, Jr.: 35-50.         42.5 kgs

Three               Freeman, Jr.: 35-50.          45 kgs
                    Ekwensi: "40 to 50,
                    leaning towards 50."

Four                Freeman, Jr.: 35-50.          44.5 kgs
                    Ekwensi: 50 - but each
                    kg was also "short"
                    four ounces, for a
                    total of 44.5 kgs.

                                             _________________________


10
 .Section 2D1.1(c)(3) of the 1992 United States Sentencing
Guidelines provides for a base offense level of 38 for "[a]t
least 150 KG but less than 500 KG of Cocaine...." With a
Criminal History Category of 0 and a two-level reduction for
minor participation, Cora Love was subject to a sentence of 188-
235 months. The district court sentenced Cora Love to 188
months.
                                       Total:   157 kgs



            On my reading of the record, based on Ekwensi's

testimony, which in this instance is not contested by Cora Love,

I would attribute no more than 25 kgs for the first shipment.

            As to the second shipment, I read Freeman Jr.'s

testimony that "[e]ach trip my father took it was somewhere

between 35 and 50 kilos of cocaine" (Supp. App. III p. 75a) to

yield the rational inference, not that there were four deliveries

ranging in size from 35 to 50 kgs as the majority suggests, see

Maj. Op. at 27-28, but that each of the four shipments weighed

between 35 and 50 kgs, a fact which, on the majority's own

analysis, would result in an average of 42.5 kgs for each

shipment.

            Courts have sanctioned the use of averages to compute

drug weights in other cases.   See, e.g. United States v.

McMillen, 8 F.3d 1246, 1250-51 (7th Cir. 1993); see generally

Federal Judicial Center, Guideline Sentencing: An Outline of

Appellate Case Law on Selected Issues 21-32 (1994).       And the

majority here so acknowledges.    Maj. Op. at 28.   In this case,

Freeman, Jr. has testified that each shipment weighed between 35

and 50 kgs, thereby establishing an average of 42.5 kgs for the

second shipment, as to which no other testimony was given.

            Freeman, Sr. delivered the third shipment sometime in

January of 1992.    Ekwensi estimated that the shipment weighed

"[a]nywhere from 40 to 50 keys, leaning more toward 50 keys."
Under the majority's own analysis, every reason exists to

attribute to Cora Love at the least, 45 kgs.

            As to the fourth shipment, I am in accord with the

majority's reasoning and the majority's attribution of 44.5 kgs

to Cora Love.    Maj. Op. at 24.

            The four shipments, therefore, total 157 kgs, and this

total is reached without taking into account an additional 28 kgs

referred to in Count V of the Indictment.     Cora Love was

convicted on this Count, and the government points out that this

amount should have been included in Cora Love's attributed total,

but for some reason was not.    See Government's Letter Memorandum

dated October 25, 1994, p. 3.      If one adds this 28 kgs to the 157

kgs noted above, a total of 185 kgs results.      But even if the 28

kgs are not added to the weight of the first four shipments, the

total still exceeds the 150 kg threshold of § 2D1.1(c)(3).

            The above calculations, which comport with each and

every principle and guideline laid down by the majority, can only

lead to one conclusion -- that the record, as it presently

exists, yields a rational basis for attributing over 150 kgs of

cocaine to Cora Love.    The drug weights attributed to Cora Love,

giving her every benefit of the record, necessarily exceed 150

kgs.    This being so, I cannot bring myself to vote for a remand

to an overworked and overburdened district court so that the

court may engage in the meaningless task of resentencing Cora

Love.    This procedure might well entail the taking of additional
evidence and would, at the very least, require additional

findings drawn from a record which, I believe, just cannot be

read to reveal less than 150 kgs.

          I therefore dissent from so much of the majority's

judgment as would vacate Cora Love's sentence and remand her case

to the district court for what I regard as a needless exercise in

sentencing endeavors.
