Summary
The Seventh Circuit addressed whether drug quantities involved in related conduct but not charged in or supporting a conviction must be included in calculating a defendant's offense level under the Sentencing Guidelines. The court held that quantities forming part of the same course of conduct or common scheme or plan must be included, and it applied that principle to the cases of William V. White and Michael Albert Roe. The court also discussed sufficiency of the evidence, admission of prior-act evidence, and counsel's obligations to include sentencing reasons in appellate appendices.
Topics
Practice areas
Questions Presented
- Whether drug quantities not charged in or supporting a conviction must be included in calculating the base offense level when they were part of the same course of conduct or common scheme or plan as the offense of conviction.
- Whether White's conviction was supported by sufficient evidence that he knew the packages contained cocaine base.
- Whether evidence of White's prior purchases and use of ether and hydrochloric acid was admissible under Federal Rule of Evidence 404(b) to show knowledge rather than character.
- Whether White's sentence could be based on the 302 grams originally placed in the packages despite his acquittal on conspiracy and firearm counts and his receipt of only 1.88 grams.
- Whether Roe's 1986 conspiracy quantities were part of the same course of conduct or common scheme or plan as his 1988 cocaine sale, and whether the 1988 sale and contemplated sale should be aggregated.
Holdings
- Under Sentencing Guidelines §§ 1B1.3(a)(2) and 3D1.2(d), drug quantities from acts that were part of the same course of conduct or common scheme or plan as the offense of conviction must be included in the base offense-level calculation, even if the defendant was not convicted of those additional acts.
- The circumstantial evidence was sufficient to support the inference that White knew the contents of the package and therefore supported his conviction.
- The district court did not abuse its discretion by admitting evidence of White's prior purchases and use of ether and hydrochloric acid to show knowledge of the contents of the packages rather than criminal character.
- White's base offense level had to be calculated using the 302 grams of cocaine base originally contained in the two packages, requiring resentencing from a base offense level of 34.
- The quantities attributable to Roe's 1986 conspiracy could not be included in the sentence for his 1988 cocaine sale because the offenses were not shown to be part of the same course of conduct or common scheme or plan.
Key quotations
“when the Guidelines provide tables that cumulate the amount sold or stolen, any acts that "were part of the same course of conduct or common scheme or plan as the offense of conviction" should be included in the computation of the amount on which the offense level depends, whether or not the defendant was convicted of selling or stealing these additional amounts.” (¶ 23)
“To base the sentence on the larger amount is not to punish White for a crime he didn't commit; it is to use consistent criteria to choose the sentence for the crime he did commit.” (¶ 30)
“The Sentencing Commission rejected real-offense sentencing in favor of a charge-offense approach modified in quantity-based crimes to include amounts that "were part of the same course of conduct or common scheme or plan as the offense of conviction".” (¶ 35)
Factual background
Customs and DEA agents intercepted two packages from Peru addressed to White that originally contained approximately 302 grams of cocaine base, removed most of the drugs, and made a controlled delivery containing 1.88 grams. White collected one package and was arrested; related evidence included mannitol and prior purchases of ether and hydrochloric acid. Roe participated in a 1986 cocaine-transportation conspiracy, sold one ounce of cocaine in May 1988, and discussed but did not complete a later four-ounce sale in June 1988. The district courts used differing quantities from these transactions in calculating the defendants' guideline sentences.
Procedural history
White was convicted after a bench trial of possessing cocaine base with intent to manufacture and distribute and was acquitted of conspiracy and a firearm offense. The district court sentenced him using only 1.88 grams of cocaine base. Roe pleaded guilty to selling one ounce of cocaine after the government agreed to dismiss other counts, but the district court included drug quantities associated with the dismissed conspiracy and another attempted sale in calculating his guideline range. The court of appeals affirmed White's conviction, vacated both sentences, and remanded for resentencing under the applicable relevant-conduct rules.
Remand instructions
White's conviction is affirmed, but his sentence is vacated and remanded for resentencing beginning with a base offense level of 34 based on 302 grams of cocaine base. Roe's sentence is vacated and remanded for further proceedings; the district court must exclude the 1986 conspiracy quantities and determine whether the 1988 one-ounce sale and contemplated four-ounce sale were part of the same course of conduct or common scheme or plan.