United States v. Janice Kay Fraser

RICHARD S. ARNOLD, Circuit Judge.

Janice Fraser appeals her sentence for attempting to possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846. Ms. Fraser asserts that the District Court erroneously calculated her base offense level' by failing to exclude drug quantities she intended for her personal use. We agree, reverse, and remand.

I.

Ms. Fraser was arrested during a law-enforcement sting operation in which she attempted to purchase one pound (453.6 *474grams) of methamphetamine. (The substance was actually flour.) She pleaded guilty, and at the sentencing hearing, Ms. Fraser testified that she intended to consume the majority of the drugs; the rest she intended to distribute to family and friends.1 Ms. Fraser also testified that she was addicted to methamphetamine and used between 54 to 1% grams per day. The government produced evidence that Ms. Fraser had sold methamphetamine in the past.

In deciding that 453.6 grams of methamphetamine was chargeable to Ms. Fraser under U.S.S.G. § 2D1.1, the Court did not determine how much, if any, of the methamphetamine was intended for personal use. The Court stated, “The issue of personal use need not be determined ... because, in any event, it would make no difference.” Sentencing Tr. at 64. The Court sentenced Ms. Fraser to 60 months (five years) imprisonment and five years of supervised release.2

On appeal, Ms. Fraser contends that in failing to exclude the portion of her attempted drug purchase that she intended for personal use, the Court erred in calculating her base offense level under the Sentencing Guidelines. With a lower base offense level, she argues, the Court’s downward departure might have gone farther than it did.3

II.

In calculating the base offense level, the trial court may consider all drugs that were “a part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2). We review a district court’s interpretations of the Sentencing Guidelines de novo. United States v. Larson, 110 F.3d 620, 627 (8th Cir.1997).

Whether drug purchases intended for personal use are relevant conduct where the defendant is convicted of possession with intent to distribute a controlled substance, or of an attempt to possess with the intent to distribute, is an issue of first impression in this Circuit. In conspiracy-to-distribute cases we have held that drug quantities purchased for personal use by a member of the conspiracy are relevant in determining the total drug quantity attributable to the defendant under U.S.S.G. § 2D1.1. United States v. Behler, 100 F.3d 632, 637 (8th Cir.1996), cert. denied, 522 U.S. 855, 118 S.Ct. 152, 139 L.Ed.2d 98 (1997); United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir.1995); United States v. Brown, 19 F.3d 1246, 1248 (8th Cir.) (per curiam), cert. denied, 513 U.S. 829, 115 S.Ct. 100, 130 L.Ed.2d 49 (1994); accord, United States v. Page, 232 F.3d 536, 542 (6th Cir.2000) (same), petition for cert. filed, (Jan. 3, 2001) (No. 00-7751); United States v. Snook, 60 F.3d 394, 396 (7th Cir.1995) (same); United States v. Wood, *47557 F.3d 913, 920 (10th Cir.1995) (holding personal-use quantities relevant conduct in a conviction for manufacturing a controlled substance); United States v. Innamorati, 996 F.2d 456 (1st Cir.1993) (holding personal-use quantities relevant conduct in conspiracy-to-distribute case), cert. denied, 510 U.S. 1120, 114 S.Ct. 1072, 127 L.Ed.2d 391 (1994).

However, those circuits having considered the precise issue now before us are split. In United States v. Wyss, 147 F.3d 631 (7th Cir.1998), the Seventh Circuit held that in sentencing a defendant for possession with the intent to distribute, the trial court must exclude drug quantities intended for personal use. The Court stated,

To count as relevant conduct under the federal sentencing guidelines, a drug offense (and the purchase of cocaine for personal consumption is a drug offense, 21 U.S.C. § 844) must be a part of the same course of conduct, or common scheme or plan, as the offense of the conviction. U.S.S.G. § 1B1.3(a)(2). It can be that only if it is part of the same group of offenses for sentencing purposes. Id. Possession of illegal drugs for personal use can not be grouped with other offenses. U.S.S.G. § 3D1.2(d); see U.S.S.G. § 2D2.1.

Id. at 631. The Ninth Circuit agreed in United States v. Kipp, 10 F.3d 1463, 1465-66 (9th Cir.1993), holding that “drugs possessed for mere personal use are not relevant to the crime of possession with intent- to distribute.” However, in United States v. Antonietti, 86 F.3d 206, 210 (11th Cir.1996), the Eleventh Circuit declined to follow the Ninth Circuit and held that personal-use quantities were relevant for sentencing purposes in a case involving a conviction for possession with intent to distribute.4

We find Wyss and Kipp persuasive. For sentencing purposes, we note an important distinction between a conviction for conspiracy to distribute and a conviction for possession with intent, or an attempt to possess with the intent to distribute. In determining the base offense level in a conspiracy-to-distribute conviction, all reasonably foreseeable drug quantities, see U.S.S.G. § 1B1.3(a)(1)(B), that are “part of the same course of conduct or common scheme or plan as the offense of conviction,” are relevant conduct. U.S.S.G. § lB1.3(a)(2). The course of conduct, or common scheme or plan, is distribution. When a defendant, who is a member of a conspiracy to distribute, purchases drugs for her personal use from a co-conspirator, the personal-use quantities “ ‘are relevant in determining the quantity of drugs the defendant knew were distributed by the conspiracy.’ ” Fregoso, 60 F.3d at 1328 (quoting Innamorati, 996 F.2d at 492). What the buyer intends to do with the drugs, in this situation, is irrelevant.

An important distinction arises where the defendant is convicted solely of possession with the intent to distribute, or of an attempt to commit this crime. The conduct, or common scheme or plan, is, again, distribution; but those drugs acquired for personal consumption are possessed without the intent to distribute, and they were not acquired from another person who was a party to a conspiracy to distribute. Keeping drugs for oneself is not within “the common scheme or plan” of selling, giving, or passing them to another; therefore, personal-use quantities are not relevant conduct. Moreover, it would be troublesome if the base offense level for a defendant convicted of possession with intent, a specific-intent crime, included drugs she had no intention of distributing.

We hold that in calculating the base offense level under U.S.S.G. § 2D1.1 *476for a conviction of possession with the intent to distribute, or of an attempt to commit this crime, drug quantities intended for personal use must be excluded. It is uncertain what the District Court meant by its statement, “The issue of personal use need not be determined ... because, in any event, it would make no difference.” Sentencing Tr. at 64. Nonetheless, it is clear that no factual finding as to personal-use quantity appears on the record; therefore, we reverse and remand for the Court to make a finding as to what quantity of the methamphetamine, if any, Ms. Fraser intended for her personal use. After making that finding, the Court should resen-tence the defendant. The Court remains free to determine the degree of its downward departure.

The judgment is reversed, and the case remanded for further proceedings in accordance with this opinion.

. In her objections to the Presentence Report, Ms. Fraser claimed she intended to distribute only 50 to 200 grams of the methamphetamine. Defendant’s Objections to the PSR at 2.If this testimony is believed, she would be chargeable with less than 350 grams, instead of at least 350 grams but less than 500 grams.

. The District Court’s finding that 453.6 grams of methamphetamine was attributable to Ms. Fraser gave her a base level of 30 (at least 350 grams but less than 500 grams) under U.S.S.G. § 2D1.1. Ms. Fraser received a three level adjustment for acceptance of responsibility, which made her total offense level 27. She had a Criminal History Category of II pursuant to U.S.S.G. § 4A1.1, which carried a sentencing range of 78-97 months imprisonment. The government filed a motion for a downward departure of 20 per cent, for substantial assistance. Ms. Fraser received 60 months (approximately 23 per cent, below the minimum).

.If Ms. Fraser’s assertions that she did not intend to distribute the entire 453.6 grams of methamphetamine are believed, and she can persuade the District Court that she intended to consume at least 103.7 grams, her base offense level would be 26 (at least 200 grams but less than 350 grams). After the acceptance-of-responsibility adjustment, her total offense level would be 23, resulting in a sentencing range of 51-63 months. From this range, the Court would exercise its discretion in departing from the statutory minimum.

. Antonietti also involved a conviction for conspiracy to distribute. This may have been the real rationale for its decision. If so, the Eleventh Circuit might agree with the Seventh and Ninth if confronted with a case in which conspiracy to distribute was not charged.