U.S.A. v. Williams, Docket No. 00-1519

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-1519
• Citation: 247 F.3d 353
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. TIMOTHY WILLIAMS, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 353

247 F.3d 353 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. TIMOTHY WILLIAMS, Defendant-Appellant.

Docket No. 00-1519

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Submitted: March 8, 2001

Decided: April 18, 2001

Appellant Timothy Williams was sentenced to 20 years in prison by the United States District Court for the Eastern District of New York (Glasser, J.) for possession of cocaine base with intent to distribute, in violation of under 21 U.S.C. § 841. Williams claims that the district court erroneously failed to exclude from its calculation of drug quantity those drugs that were intended for his personal use, and, as a result, sentenced him improperly.

Vacated and remanded.

[Copyrighted Material Omitted]

Cheryl J. Sturm, Carlos J. Martinez, Chadds Ford, PA, for appellant.

Judith Phillips, Susan Corkery, Assistant United States Attorneys for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for appellee.

Before: JACOBS and CALABRESI, Circuit Judges, and ARTERTON, District Judge.^*

CALABRESI, Circuit Judge:

This case presents the question of whether a criminal defendant who is convicted of possession of drugs with intent to distribute, in violation of 21 U.S.C. § 841, is entitled to have excluded from a sentencing court's calculation of the quantity of drugs involved in his offense any drugs that were intended for "personal use" rather than distribution. Appellant Timothy Williams challenges a judgment of the United States District Court of the Eastern District of New York (Glasser, J.), sentencing him to twenty years in prison for possession of over 50 grams of cocaine base. Williams argues that, by failing to exclude from its calculus those drugs which he intended to consume rather than distribute, the district court erred in setting both the statutory and guidelines ranges appropriate for his sentence. We hold that, in sentencing defendants convicted of possession with intent to distribute, drugs meant only for personal use must be excluded from the drug quantity assessment. Accordingly, we vacate and remand the judgment of the district court.

BACKGROUND

Timothy Williams was convicted in 1992 on four counts relating to drug and weapons offenses. He was sentenced to consecutive terms of 20 years, under 21 U.S.C. § 841, for possession of cocaine base with intent to distribute, and 5 years, under 18 U.S.C. §924(c)(1), for carrying a firearm in connection with a drug offense. Williams also received concurrent sentences of 5 years each for possession of firearms with obliterated serial numbers and for being a felon in possession of a firearm. On November 1, 1994, this court summarily affirmed Williams's conviction.

On June 25, 1997, Williams filed a petition for relief under 28 U.S.C. §2255. In light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995), Williams's conviction under 18 U.S.C. §924, for possession of a firearm during a drug crime, was vacated. See Memorandum and Order of District Court in Williams v. United States, cv-97-2510 (June 25, 1997). His petition was denied in all other respects and the district court ordered that Williams be produced for resentencing. See id.

On March 30, 2000, the government submitted a letter to the district court in preparation for resentencing.¹ The letter referred the court to the initial Pre-Sentence Report (PSR), which had been prepared in 1993. The PSR stated that "the defendant was found to be in possession of 68.9 grams (net weight) of cocaine base...." Accordingly, the PSR indicated that Williams's offense level for this count, under U.S.S.G. §2D1.1(a)(3), was 32, and that, under 21 U.S.C. §841(b)(1)(A), Williams was subject to a mandatory minimum term of 20 years in prison.² The government's letter to the district court explained:

According to the PSR, the defendant is assigned to criminal history category III. Thus, assuming his adjusted offense level is 34, the range of imprisonment is 188-235 months. However, the statutory mandatory minimum for the defendant's section 841(a)(1) conviction is 20 years. Accordingly, the defendant should be resentenced to 240 months.

Williams thereupon sent to the district court his "Objections to Presentence Investigation Report." In these, he asserted that "drug quantities intended for personal use must be subtracted from total drug quantities in order to arrive at quantities intended for distribution, which is the baseline for computation of the mandatory minimum term and the guideline range." He insisted that the government was required to prove that the quantity of drugs with respect to which he was sentenced under 21 U.S.C. § 841 was actually "intended for distribution."

On June 27, 2000, the district court held a (re)sentencing hearing. Judge Glasser stated that "insofar as the quantity is concerned, I think the record of this case is pretty clear that the quantity for which Mr. Williams was being held responsible was quite clearly a quantity which was for distribution and not for personal use." As a result, Williams was sentenced, in accordance with 21 U.S.C. §841(b)(1)(A), for possession with intent to distribute 68.9 grams of cocaine base. Judge Glasser explained that, under this provision, "there's a mandatory minimum of twenty and a maximum of life," and he sentenced Williams to twenty years in prison and ten years of supervised release on the §841 count. Williams also received (as he had before) concurrent sentences of 5 years each for being a felon in possession and for possessing firearms with defaced serial numbers.

This appeal followed.

DISCUSSION

On appeal, Williams reiterates his claim that the district court should have distinguished between cocaine intended for distribution and cocaine intended for personal use.³ Williams emphasizes that he is a drug addict, and that he began using cocaine when he was 18 or 19 years old and heroin when he was 23. He further argues that given his "long history of drug addiction, the likelihood that [he] was not consuming a portion of the applicable cocaine is remote." Had the drugs intended for personal use been excluded from the district court's calculation, Williams contends, the applicable range of punishment under both the statute and the Sentencing Guidelines would have been lower.⁴

A.

The question of whether drugs intended for personal use must be excluded from a finding of drug quantity under 21 U.S.C. § 841 is a question of law which we review de novo. See, e.g., United States v. Grant, 235 F.3d 95, 99 (2d Cir. 2000). Under U.S.S.G. §1B1.3(a)(2), in determining the quantity of drugs relevant to a defendant's offense level under the sentencing guidelines, only drugs "that were part of the same course of conduct or common scheme or plan as the offense of conviction" are to be considered. Williams insists that drugs intended for personal use and drugs intended for distribution are not part of "the same course of conduct or common scheme or plan." The defendant relies on United States v. Kipp, 10 F.3d 1463 (9th Cir. 1993) and United States v. Wyss, 147 F.3d 631 (7th Cir. 1998) for support. In Kipp, the Ninth Circuit held that:

Drugs possessed for mere personal use are not relevant to the crime of possession with intent to distribute because they are not 'part of the same course of conduct' or 'common scheme' as drugs intended for distribution. Accordingly, we hold that in calculating the base offense level for possession with intent to distribute, the district court must make a factual finding as to the quantity of drugs possessed for distribution and cannot include any amount possessed strictly for personal use.

Kipp, 10 F.3d at 1465. Similarly, in Wyss, the Seventh Circuit determined that "[i]t was... improper for the judge to take account of the defendant's possession of cocaine for personal use... in sentencing him for possession with intent to distribute."⁵ Wyss, 147 F.3d at 632.

The government urges this court to reject the holdings in Kipp and Wyss and, instead, to adopt the view of the Eleventh Circuit, expressed in United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996). The Antonietti court acknowledged the decision of the Ninth Circuit in Kipp, but expressly declined to follow it. Citing the decisions of other circuits in United States v. Innamorati, 996 F.2d 456, 492 (1st Cir.1993), cert. denied, 510 U.S. 1120 (1993), United States v. Snook, 60 F.3d 394, 395 (7th Cir.1995); United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir.), reh'g and sugg. for reh'g en banc denied (Oct. 10, 1995), and United States v. Wood, 57 F.3d 913, 920 (10th Cir.1995), the Eleventh Circuit decided to count, for sentencing purposes, drugs intended for personal use.

The defendants in Antonietti (and in the cases upon which Antonietti relied), however were not charged only with possession with intent to distribute, but also with conspiracy. Those cases are, therefore, inapposite to the one before us, which (like Kipp and Wyss) involves only possession with intent to distribute, and not conspiracy. As the Seventh Circuit explained in Wyss:

The case would be different... if the charge were conspiracy rather than possession.... Suppose that X sells Y a kilogram of cocaine in circumstances that make Y a conspirator with X and not merely a buyer from him. The amount of drugs involved in the conspiracy is unaffected by the use that Y makes of the drugs. It makes no difference whether he sells the entire amount and buys drugs for his personal consumption on the open market with the proceeds or keeps a portion of the drugs to consume personally as compensation for his participation in the conspiracy. But the defendant in our case was not convicted of conspiracy and the judge made no finding that, convicted or not, he was a participant in a conspiracy.

Wyss, 147 F.3d at 632. Where, instead, there is no conspiracy at issue, the act of setting aside narcotics...