U.S. v. Gill

• Decision Date: 31 October 2003
• Docket Number: No. 01-6538.,01-6538.
• Citation: 348 F.3d 147
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher GILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

348 F.3d 147

UNITED STATES of America, Plaintiff-Appellee, v. Christopher GILL, Defendant-Appellant.

No. 01-6538.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2003.

Decided and Filed: October 31, 2003. Pursuant to Sixth Circuit Rule 206

COPYRIGHT MATERIAL OMITTED

ARGUED: April R. Goode, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.

Victor L. Ivy, ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee.

ON BRIEF: M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant.

Victor L. Ivy, ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee.

Before: MOORE and CLAY, Circuit Judges; LAWSON, District Judge.^*

OPINION

DAVID M. LAWSON, District Judge.

The United States Sentencing Commission has prescribed a methodology that trial courts must use to determine a sentencing range in a criminal case. A key ingredient of the sentencing formula in drug cases is the quantity of a controlled substance for which a convicted defendant will be held accountable. A defendant is responsible for all drug quantities that are included within the scope of his "relevant conduct," as that term is defined by the United States Sentencing Guidelines Manual. In this case, Christopher Gill, the defendant, contends that his sentence for possession with intent to distribute cocaine was too severe because the district court included in its calculation of drug quantity, cocaine that Gill possessed only for personal use. We agree with this argument, for reasons explained in detail below, and therefore we vacate Gill's sentence and remand for a new sentencing hearing.

I.

On April 16, 2001, Gill was indicted on three counts by a grand jury for the United States District Court for the Western District of Tennessee, sitting in Jackson. Count one charged the defendant with possession of cocaine with intent to distribute, contrary to 21 U.S.C. § 841(a)(1). In count two, the grand jury alleged that the defendant knowingly possessed a firearm in furtherance of a drug trafficking crime, contrary to 18 U.S.C. § 924(c). The third and final count charged unlawful possession of that same firearm by a previously convicted felon. See 18 U.S.C. § 922(g). All of these offenses were alleged to have been committed on December 20, 2000.

The defendant pleaded guilty to counts one and two on August 17, 2001, and the government agreed to dismiss the remaining count. After receiving the presentence report, the defendant objected to the recommendation that he be sentenced to 81 months in custody. Although he did not dispute the initial 60 months of that term, which stemmed from his conviction on count two, the defendant alleged that the recommended 21-month sentence was based on an erroneous conclusion that he intended to distribute 35.4375 grams of cocaine. The basis for the probation officer's reasoning was as follows:

Mr. Gill stated to police that he had bought eight grams of powder cocaine for personal use during the weekend preceding his arrest on the instant offense, and the electronic scales he possessed were used for his own quality control purposes to avoid getting shorted in his drug transactions. However, in a written statement made to officers of the Jackson Police Department on March 30, 2001, Christopher J. Gill stated that for the five weeks preceding his arrest on the instant offense, he would buy approximately one-quarter ounce of "soft" (powdered cocaine) and would sell out of that quantity to make a profit.

J.A. at 40. Although the calculations leading to the 35.4375-gram figure are not provided in the report, the government quite sensibly suggests that the probation officer simply multiplied the quarter-ounce figure by five, one for each week, and then converted 1.25 ounces to the figure of 35.4375 grams. The probation officer then referred to U.S.S.G. § 2D1.1(c)(13), which establishes a base offense level of 14 in cases where the defendant is accountable for 25 to 50 grams of cocaine powder. The probation officer then deducted two points for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), and concluded that the applicable sentence range, given the defendant's placement in criminal history category IV, was 21 to 27 months. See id. Ch. 5, Pt. A (sentencing table).

As previously stated, the defendant filed timely objections to the presentence report, contending that he should be held accountable only for 6.8 grams of cocaine, the amount in his possession when he was arrested. Gill reasoned that he was not charged with conspiracy or with possession over a range of dates; instead the offense of conviction, according to the indictment, was that Gill possessed the cocaine that he intended to distribute on a specific date. That drug amount called for a base offense level of 12, and a net offense level of 10, yielding a sentence range of 15 to 21 months in custody.

At sentencing, the government urged adoption of the presentence report and read the report's summary of the defendant's statements into the record. No other evidence was offered concerning the amount of cocaine possessed by the defendant. In response to the district court's query as to the government's position on how to account for the drugs the defendant likely possessed for personal use, the Assistant United States Attorney stated that he had not researched the issue, he had no witnesses available to inform the court of the "customary practice" on the street, and he found it difficult to provide a definitive answer. J.A. at 28-29. Defense counsel also confessed that she knew of no authority on how such adjustments could be made, but relied on the defendant's insistence that he had purchased eight grams the week before his arrest and had about six grams remaining at the time of his arrest. Since the defendant was found in possession of 6.8 grams, defense counsel argued that use of the full eight-gram figure would be inaccurate and inappropriate. J.A. at 30.

The district court also stated that it had found no controlling authority on the issue, but concluded "the law ought to be, if it's not, that if you possess drugs with intent to distribute some of it [sic] and you're going to use some of it, then all of it is attributable to you as relevant conduct in a drug sale case." Id. at 31. "Otherwise," the district court reasoned we'd end up with a situation in every case where a drug dealer caught up with a big bag of dope, all he's got to do is say, "Well, I had bought this as my private stash, and I was going to use a gram a week for the next six years," and it gets impossible to determine.

Ibid. The district court proceeded to adopt the presentence report recommendation, calculated the appropriate guideline range on count one to be 21 to 27 months, and then sentenced the defendant to 21 months of incarceration to run consecutive to his mandatory-minimum sentence of 60 months on count two. Four years of supervised release are to follow after the defendant's release from custody.

Judgment was entered on November 14, 2001, and the defendant filed a timely appeal. Gill does not challenge in this appeal his sixty-month sentence on the weapons count.

II.

The district court's factual findings at a sentencing proceeding are reviewed for clear error, and its application of the Sentencing Guidelines to those facts is reviewed de novo. United States v. Butler, 297 F.3d 505, 516 (6th Cir.2002), cert. denied ___ U.S. ___, 123 S.Ct. 2074, 155 L.Ed.2d 1060 (2003). When calculating the drug quantities attributable to a defendant as relevant conduct under the Sentencing Guidelines, the district court's findings must be supported by a preponderance of the evidence. United States v. Copeland, 321 F.3d 582, 602 (6th Cir.2003). When the amount of drugs is uncertain, the district court must "err on the side of caution" and hold the defendant accountable only for that amount that is more likely than not attributable to the defendant. Ibid.; United States v. Lopez, 309 F.3d 966, 972 (6th Cir.2002), cert. denied, 537 U.S. 1244, 123 S.Ct. 1380, 155 L.Ed.2d 217 (2003). Relevant conduct need not be charged, nor must it otherwise even be within the jurisdiction of the sentencing court. United States v. Hough, 276 F.3d 884, 898 (6th Cir.2002).

According to the Sentencing Guidelines Manual, the first step in establishing a sentencing range is to locate the applicable guideline section according to the offense of conviction, see U.S.S.G. § 1B1.2(a), and then set the offense level based on the defendant's "relevant conduct." See id. § 1B1.2(b). Here, the defendant was charged with possession with intent to distribute a controlled substance under 21 U.S.C. § 841(a), which required the sentencing court to refer to U.S.S.G. § 2D1.1 to obtain the base offense level. See id. App. A. The crime of simple possession, which is defined by 21 U.S.C. § 844(a), calls for the use of a different guideline section, U.S.S.G. § 2D2.1. Under Section 2D1.1, the base offense level for a defendant whose crime does not involve death or serious bodily injury resulting from the use of a controlled substance is determined exclusively by the drug quantity table. See id. § 2D1.1(a)(3). The amount entered into that table, however, is not limited to the quantity involved in the defendant's crime. The Guidelines Manual directs that "[t]ypes and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See § 1B1.3(a)(2) (Relevant Conduct)." Id. § 2D1.1, comment. (n.12).

In order to determine whether drug quantities possessed for personal use should be included in the tally when establishing the base offense level for a distribution- or trafficking-type crime under Section 2D1.1, the sentencing court must follow the path laid out in the Guidelines Manual to the definition of "relevant conduct" found in Section 1B1.3. There, the Sentencing Commission states that the ...