dissenting.
I respectfully dissent.
I disagree with the court’s conclusion, and that of the Seventh and Ninth Circuits, that a district court must exclude, in all cases, drug quantities purchased for personal use when sentencing a defendant convicted of possession with intent to distribute a controlled substance. Adopting the Seventh Circuit’s reasoning in Wyss, the court has concluded that the language of the Guidelines, USSG § lB1.3(a)(2) to be precise, compels exclusion of personal-usage quantities. Specifically, the Wyss court reasoned that because the offense of possession of illegal drugs for personal use cannot be grouped with the offense of possession with intent to distribute for purposes of computing a Guideline sentence, simple possession cannot constitute “part of the same course of conduct or common scheme or plan as the offense of conviction.” 147 F.3d at 632; see also ante at 475. Thus, this court holds that personal-use quantities are not relevant for sentencing purposes. Ante at 475-76. I find the court’s holding contrary to the Guidelines’ language. I would affirm the district court.
I find the grouping rules inapplicable as a way to analyze this issue. Section lB1.3(a)(2), by its express language, applies only when the conduct sought to be counted against the defendant comprises an offense that under the Guidelines must be grouped with other counts for which the defendant is being sentenced.5 See also USSG § 1B1.3, comment, (n. 3) (Subpara-graph (a)(2) “applies to offenses for which grouping of counts would be required under § 3D1.2(d) had the defendant been convicted of multiple counts.”). Had Ms. Fraser been convicted of mere possession of illegal drugs for those quantities she claims to have been buying for personal use, that conviction, as the court notes, would not be subject to grouping. See USSG § 3D1.2(d) (Unlawful possession, governed by USSG § 2D2.1, is specifically excluded as a groupable offense); see also United States v. Ramirez, 196 F.3d 895, 897 (8th Cir.1999) (recognizing that § 1B1.3(a)(2)’s “same course of conduct or common scheme or plan” requirement is relevant when offenses are subject to grouping under § 3D1.2(d)). Therefore, contrary to the court’s reasoning, the conduct of possessing personal-use drugs does not fall within the purview of § 1B1.3(a)(2) in determining whether it is relevant conduct for sentencing purposes because it is not conduct subject to § 3D1.2(d)’s special grouping rule. Instead, and logically I believe, her purported purchase of methamphetamine for her own use, purchased at the same time as the methamphetamine she intended to sell, is tested under the more general relevant conduct provision *477contained in § 1B1.3(a)(1)(A). Under § 1B1.3(a)(1)(A), relevant conduct includes “all acts ... that occurred during the commission of the offense of conviction.” (Emphasis added). This is not a case involving similar acts committed at discrete times during a course of conduct. Her act of attempting to purchase drugs for personal use (assuming that is partially what she was doing) occurred at the very same time as her act of attempting to purchase methamphetamine with intent to distribute. The two are inextricably intertwined. It is one indivisible act, and hence the total quantity is recognizable for sentencing purposes.
There is no question under § lB1.3(a)(l)(A) that Ms. Fraser’s attempted possession of alleged personal-use methamphetamine, and its quantity, is relevant conduct for sentencing purposes— her attempted possession of it was coextensive and coterminous with her attempted possession of the methamphetamine she fully intended to sell. There was no time interval between when she attempted to purchase drugs for herself and when she attempted to purchase drugs for others. She placed no separate orders with the purported supplier. The attempted drug purchase was one transaction involving a single, fungible quantity and a single type of drug. Her later determination of exactly what portion of the methamphetamine she allegedly had intended to keep for her personal use (conveniently scaled to reduce her sentencing exposure) smacks more of a post-crime, pre-sentencing ploy than deliberate pre-crime planning. To require district courts to parse out personal-use quantities whenever such an allegation is made (and I am sure it will often now be made) will needlessly burden them with yet another finely tuned quantity decision to make under the Sentencing Guidelines system. Under the facts presented here, I agree with the district court, and the Eleventh Circuit, see United States v. Antonietti, 86 F.3d 206, 210 (11th Cir.1996), that whether Ms. Fraser purchased some of the drug for her personal use. “make[s] no difference” in computing her sentence under the Guidelines.6
That is not to say that personal use quantities will always be bound up into relevant conduct for sentencing purposes. Section lB1.3(a)(l)(A) requires some nexus between the sentencing conduct and the offense of conviction, and it is possible to imagine scenarios where there would be no such connection — that is, where a personal use quantity possessed by the defendant would be entirely unrelated to the commission of the possession with intent to distribute, but that is not the case here.
However, even if Ms. Fraser’s contention is correct, I would still affirm the district court. The district court’s factual determinations as to drug quantities are reviewed for clear error. United States v. Moore, 212 F.3d 441, 445 (8th Cir.2000). The district court found Ms. Fraser responsible for 453.6 grams of methamphetamine, and it declined to consider what portion of the methamphetamine may have been for her personal use because “it would make no difference.” The base offense level for at least 350 grains but less than 500 grams of methamphetamine is 30, which is the base offense level used in Ms. Fraser’s case before she received a three-level downward adjustment for acceptance of responsibility and a substantial assistance departure down to the mandatory 60 month minimum sentence. USSG § 2D1.1 (1998). Apparently, the district court did not believe that, in any event, Ms. Fraser, an admitted addict, had planned in advance of the purchase to set aside as inviolate more than 103.6 grams of the meth*478amphetamine for her personal use. Ms. Fraser testified that she used between % and 1% grams per day. Assuming Ms. Fraser did consume % gram of methamphetamine per day and further assuming that she did plan to set aside 104 grams for her personal use, Ms. Fraser would have a 416 day supply of methamphetamine squirreled away for her personal use and allegedly totally immune from any temptation or intent to sell it. Using the higher amount of methamphetamine use per day, 1% grams, Ms. Fraser would still have had a two month supply salted away for her personal use. Either contention stretches credulity to its breaking point. What addict buys over a year’s worth of drugs at a time (or even a two month supply) and sets it aside never ever intending to sell any of it? The district court’s assessment of the credibility of Ms. Fraser’s testimony regarding her drug use at sentencing is “quintessentially a judgment call and virtually unassailable on appeal.” United States v. Causor-Serrato, 234 F.3d 384, 390 (8th Cir.2000). I would not say that the district court’s implicit factual finding that Ms. Fraser intended to distribute at least 350 grams of the methamphetamine was clearly erroneous. Her intent to distribute may be inferred solely from her possession of a large quantity of narcotics. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir.1994). Possession of over 100 grams is itself indicative of an intent to distribute. See United States v. Schubel, 912 F.2d 952, 956 (8th Cir.1990) (recognizing that defendant’s possession of approximately 50 grams of methamphetamine is consistent with an intent to distribute).
An alternative reading of the district court’s enigmatic “it would make no difference” reasoning is that in no event was the district court going to find the amount intended to be distributed by Ms. Fraser to be less than the 50 grams of methamphetamine mixture which triggers the 5 year (60 month) mandatory minimum sentence contained in 21 U.S.C. § 841(b)(l)(B)(viii), and that the district court did not intend to depart below the statutory minimum with respect to her sentence. The latter contention is supported by the fact that the court’s judgment reflects that it did in fact grant a motion to depart from the Guideline range (but not the statutory minimum) for substantial assistance. (R. at 24.) Contrary to our court’s assertion in footnote 3 that had the appellant’s position on quantity been adopted her range prior to any departure would have been 51-63 months, her range instead would have been 60-63 months because the statutory minimum for her admitted attempt to possess with intent to distribute conduct would be 5 years. See USSG § 5Gl.l(c)(2) & comment. (providing where the bottom of the Guideline range is below the statutory minimum, the statutory minimum becomes the bottom of the range.). Ms. Fraser has not challenged the district court’s denial of her motion to depart from the statutory minimum, and even if she had, the matter would be unreviewable because nothing in the record suggests that the court believed that it lacked authority to depart or that it acted with an unconstitutional motive. See United States v. Johnson, 169 F.3d 569, 573 (8th Cir.1999). I would affirm for this reason as well.
. Section IB 1.3(a)(2) provides, in full, that: "solely with respect to offenses of a character for which § 3DI.2(d) would require grouping of multiple counts, [relevant conduct includes] all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction.”
. I also disagree with the court’s speculation as to the "real rationale” for the Eleventh Circuit's decision. See ante n. 4. The Eleventh Circuit’s opinion clearly holds that the question it was addressing was "whether the drug quantity used to determine the base offense level for manufacturing or possession with intent to distribute includes drugs manufactured or possessed for personal consumption.” 86 F.3d at 209. Conspiracy is not mentioned in its framing of the question.