Jansen v. U.S., 02-4215.

• Decision Date: 21 May 2004
• Docket Number: No. 02-4215.,02-4215.
• Parties: Robert John JANSEN, Jr., Appellant v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

369 F.3d 237

Robert John JANSEN, Jr., Appellant v. UNITED STATES of America.

No. 02-4215.

United States Court of Appeals, Third Circuit.

Argued January 22, 2004.

May 21, 2004.

James V. Wade, Federal Public Defender for the Middle District of Pennsylvania, Daniel I. Siegel, Assistant Federal Public Defender, D. Toni Byrd (Argued), Assistant Federal Public Defender, Harrisburg, for Appellant, Robert John Jansen, Jr.

Thomas A. Marino, United States Attorney, Theodore B. Smith, III (Argued), Assistant United States Attorney, Harrisburg, for Appellee, United States of America.

Before ALITO and CHERTOFF, Circuit Judges, and DEBEVOISE,^* Senior District Court Judge.

OPINION

DEBEVOISE, Senior District Judge.

Defendant, Robert John Jansen, Jr., filed a petition pursuant to 28 U.S.C. § 2255, asserting that his trial counsel was ineffective for failing to argue at his sentencing for drug possession with intent to distribute that the amount of drugs in his 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 ineffective in this regard, defendant was not prejudiced for the reason that there was a strong connection between the drugs defendant intended to distribute and any drugs he held for personal use, and therefore all amounts of drugs he possessed should enter into the base offense level computation. We hold, in agreement with the opinions of the other Courts of Appeals that have ruled upon this issue, that when a conviction is for simple possession with intent to distribute, the amount of drugs a defendant possessed for personal use must be determined and may not be included in the base offense level computation. Counsel was ineffective for failing to raise this issue at the time of sentencing, and this failure may have resulted in prejudice to defendant. The judgment of the District Court will be reversed and the case will be remanded for a determination of the amount of drugs, if any, which defendant possessed for personal use and, if appropriate, recomputation of defendant's base offense level in accordance with this opinion.

I. Background

After midnight on June 30, 1998 Pennsylvania State troopers stopped a light blue Chevrolet Spectrum with two male occupants and a silver Toyota Camry which appeared to be accompanying the Spectrum and which also had two occupants. The troopers had previously received information that the Spectrum would be transporting illegal drugs from the New York City area back to Pennsylvania. Defendant was the passenger in the Spectrum. Its driver was Andrew DeHart. The driver of the Camry was a Hispanic male who went by the nickname of "Louie." The passenger was another Hispanic male.

The troopers retrieved a plastic bag from defendant's groin area. Subsequent laboratory analysis disclosed that within the bag were two smaller bags, one containing 34.2 grams of cocaine and the other containing 16.3 grams of crack cocaine. Defendant also had on his person $770 in currency and a pager. Shortly after the stop a drug detection canine was brought to the scene, and the driver of the Spectrum, DeHart, consented to a search. There was discovered on the rear floor a black videocassette recorder ("VCR") which contained a number of plastic bags. Analysis later disclosed that these bags contained a total of 448 grams of cocaine.

Neither a consent search nor a dog sniff of the Camry disclosed any drugs, and consequently the troopers permitted the two Hispanic males to proceed on their way.

Shortly after defendant had been searched and the drugs found on his person he volunteered that he was going to have to find out "who told the police on him," as there were only two people who knew "he made this run." (II App. 157). He added that only one of the two knew what kind of vehicle he drove, so he had it "pretty much narrowed down." (II App. 164). He also stated that he could offer information that would yield the troopers three to four times the quantity of drugs the stop would yield. (Id.)

The troopers advised defendant of his constitutional rights approximately one-half hour after the stop. There was an interval of time during which the two cars were searched and then defendant was again advised of his constitutional rights. (II App. 177). When asked what was in it for him the troopers informed defendant only that his cooperation would be made known to his sentencing judge. The defendant then stated that the cocaine found in his pants was "all for him, ... that he was not going to deliver that to anybody in the area, [and] that it was strictly his." (II App. 178)

Defendant also told the trooper who was questioning him that he had just gone to New York City to meet an individual named "Louie," that Louie had given him an ounce of cocaine, that he had also purchased the crack cocaine from Louie, and that these quantities of cocaine were the drugs seized from his pants (II App. 178-79, 233-34). Further, according to defendant, Louie, who was the person driving the Camry, had also delivered to him the VCR containing cocaine which he was to deliver to a man named Richy Willow in Middleburg, Pennsylvania, early that morning (II App. 179).

The usual procedure, according to defendant, was for Willow to contact Louie in New York by telephone and place a cocaine order, after which Louie would communicate with defendant to inform him that there was a package to pick up in New York (II App. 179). Defendant would then drive to New York, take delivery of a VCR containing cocaine and drive back to Pennsylvania in order to deliver the VCR to Willow. Louie would follow defendant from New York to Willow's residence and receive payment from Willow. Before leaving for Pennsylvania Louie would deliver to defendant a quantity of cocaine as payment for his transportation services. (II App. 179-80).

On October 13, 1998 a grand jury returned a one count indictment charging defendant with distribution and possession with intent to distribute cocaine and cocaine base and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He proceeded to trial. Testifying in his own defense, defendant recanted the incriminating statements he had made on the night of his arrest (II App. 219-36; III App. 277-87). At trial he testified that the driver, DeHart, had called him and asked him to ride along with DeHart on a trip to New York, because DeHart did not like traveling alone (II App. 221). He went along because he needed cocaine to satisfy his own habit (Id.) Defendant asserted that he knew DeHart "was up to something" but he did not know what it was. (Id.). In a somewhat contradictory vein he testified that he knew the VCR contained cocaine, although he did not know how much, and that it would be delivered to Willow after being transferred to the vehicle that followed them from New York (II App. 226).

Although defendant disavowed most of the incriminating statements he had made on the night of his arrest, he reiterated his initial contention that the cocaine and crack cocaine seized from his pants were for his own personal use. (II App. 228). He went to New York to obtain cocaine because it was cheaper there. He admitted he introduced people to his sources and facilitated their purchases in order to obtain a cheaper price for his own drugs. (II App. 228-30). He was unemployed on June 30, 1998, but testified that he had paid $1,000 for the nearly two ounces of cocaine and crack cocaine seized from his pants. He explained that the $770 seized from him at the time of the stop was the proceeds of the sale of two cars that belonged to his father. (II App. 238, 235).

On cross-examination defendant admitted that on occasion he would sell some of what he brought back for himself to finance his next purchase, cocaine being much cheaper in New York. (II App. 283-84). Specifically, defendant admitted that he had sold one-eighth ounce quantities or "eight balls," of cocaine in Milton for approximately $150 and that he sold an "eight ball" of cocaine to an undercover state trooper 30 days before his arrest on May 29, 1998. (II App. 285). Defendant set his price so as to be able to use the proceeds to purchase more cocaine. (II App. 287).

During his principal and rebuttal closing arguments the Assistant United States Attorney argued strenuously that both the cocaine contained in the VCR and the cocaine and crack seized from defendant's pants were possessed with intent to distribute. Citing the fact that cocaine was much cheaper in New York the government asked rhetorically "... why would[n't] you get two ounces, bring it back when you can sell one of those two and make enough money to buy another one or two ounces and use the other ounce?" (II App. 345).

... [I]f you bring back an ounce of cocaine and you break it down to eight balls and sell it at $150 each, you can see that you can use half and sell half [,] an eight ball [] being an eighth of an ounce. You can sell it to make enough money to buy another ounce on your own.

(IV App. 346)

The jury found defendant guilty. It did not, and was not required to, make a special finding as to whether the drugs found in defendant's pants were possessed with intent to distribute.

Using the 1998 edition of the United States Sentencing Guidelines Manual the probation officers who prepared defendant's presentence report ("PSR") calculated the drug quantity under the drug trafficking guideline at U.S.S.G. § 2D1.1. The calculation included i) the 448 grams of powdered cocaine found in the VCR at the time of arrest, ii) 50 ounces of cocaine that defendant admitted he possessed for distribution on previous trips, iii) the 16.3 grams of crack cocaine found on defendant's person that defendant told the trooper were for personal use, and iv) the 34.2 grams of powdered cocaine found on defendant's person that defendant told the troopers were for personal use. These...