Robert John Jansen, Jr. v. UNITED STATES OF AMERICA On Appeal from the United States District Court for the…

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PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4215
ROBERT JOHN JANSEN, JR.,
Appellant
v.
UNITED STATES OF AMERICA
On Appeal from the
United States District Court
for the Middle District of Pennsylvania
Criminal Action No. 4:98-CR-240
(Honorable James L. M cClure, Jr.)
Argued January 22, 2004
Before: ALITO and CHERTOFF,
Circuit Judges, and DEBEVOISE*,
Senior District Court Judge
(Filed: 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
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Attorneys for Appellant,
Robert John Jansen, Jr.
THOMAS A. MARINO
United States Attorney
THEODORE B. SMITH, III (Argued)
Assistant United States Attorney
Federal Building
228 Walnut Street
Harrisburg, PA 17108
Attorneys for Appellee,
United States of America
OPINION
Debevoise, United States 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
*Honorable Dickinson R. Debevoise,
United States Senior District Judge for the
District of New Jersey, sitting by designation.

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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 com putation. 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 w as 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

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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

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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

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were for personal use. These quantities,
when converted to marijuana equivalents,
yielded a total weight of 705.94 kilograms
of marijuana. (PSR, par. 4-12).
Pursuant to U.S.S.G. § 2D1.1(c)(5)
this amount fell within the 700 to 1,000
kilogram range, resulting in an offense
level of 30. An offense level of 30,
combined with a criminal history category
of III, produced a sentencing range of 121
to 151 months.
At sentencing defendant’s counsel
raised an objection to the computation of
the offense level, arguing that the
uncharged “historical” distributions
attributed to defendant should not be
included. The court rejected this argument
and sentenced defendant to 121 months
imprisonment.
At the time of sentencing the Courts
of Appeals for the Seventh and Ninth
Circuits had held that drugs possessed for
personal use may not be included in
calculating a Guideline sentence for
possession with intent to distribute under
U.S.S.G. § 2D1.1. United States v. Wyss,
147 F.3d 631 (7th Cir. 1998); United States
v. Kipp, 10 F.3d 1463 (9th Cir. 1993).
Defense counsel did not argue that the
drugs found in defendant’s pants were for
personal use and should not be counted in
computing the offense level. Had he
successfully argued that point, the drugs in
the VCR and the drugs previously
distributed would have produced a total
marijuana equivalent of 373.1 kilograms.
Marijuana in the range of 100 to 400
kilograms produced an offense level of 26.
In defendant’s circumstances his
sentencing range would have been 78 to 97
months. Even if only a portion of the
drugs found in defendant’s pants were
found to have been for personal use and
were excluded from the base offense level
computation, defendant would have fallen
into a less than 700 to 1,000 kilogram
range, and his sentencing range would
have been less than 121 to 151 months. In
any event, this contention was not raised in
the District Court.
Defendant appealed his conviction.
The appeal focused on the suppression of
evidence obtained during his arrest. The
Court of Appeals affirmed the judgment of
the District Court.
On October 30, 2001 defendant
filed an amended petition for post
conviction relief pursuant to 28 U.S.C. §
2255. He contended, among other things,
that his trial counsel had been ineffective
in failing to object to consideration of drug
quantities which were for personal use. In
two comprehensive opinions dated August
22, 2002 and November 1, 2002,
respectively, the District Court addressed
the six claims that defendant advanced.
The Court ordered that the petition be
denied in its entirety and that there was no
basis for issuance of a certificate of
appealability.
Relevant to the instant appeal is the
portion of the District Court opinion that
dealt with defendant’s contention that his
trial counsel was ineffective for failing to
argue at the time of sentencing that the
drugs found in his pants were for personal

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use and should not have been included in
the offense level computation. The Court
noted that as of the date of its opinion the
Court of Appeals for the Second and
Eighth Circuits had joined those of the
Seventh and Ninth Circuits in holding that
when calculating the base offense level for
a conviction of possession with intent to
distribute, a District Court must exclude
those drug quantities reserved for personal
use. United States v. Williams, 247 F.3d
353, 355 (2nd Cir. 2001); United States v.
Fraser, 243 F.3d 473, 475 (8th cir. 2001)1.
The opinion also referred to the one Court
of Appeals opinion which holds that
personal use quantities may be included in
the calculation of the base offense level.
United States v. Antonietti, 86 F.3d 206,
210 (11th Cir. 1996).
The District Court disagreed with
the premise it attributed to the majority of
the Court of Appeals that “the act of
setting aside narcotics for personal
consumption is . . . not a part of a scheme
or plan to distribute these drugs. Williams,
247 F.3d at 358.” (I App. 54). Instead the
District Court found persuasive the
reasoning of the dissent in Fraser. The
dissent contended that when a defendant’s
attempted purchase of the drugs for
p e r s o n a l u s e w a s “ i n e x t r ic a b ly
intertwined” with her attempted purchase
for distribution, the entire quantity should
be countable for sentencing purposes.
Fraser, 243 F.2d at 477. Applying the
reasoning of the Fraser dissent, the District
Court stated:
We believe that the
reasoning of the Fraser
dissent is applicable to
Jansen’s case. Jansen’s
possession of the crack
cocaine was part and parcel
of his attempt to distribute
the powder cocaine in the
VCR. The crack was
obtained as a result of
Jansen’s trip to New York.
Jansen received the crack
from the person who gave
him the VCR. The
connection between the
drugs Jansen intended to
distribu te (the powder
cocaine in the VCR) and the
drugs Jansen allegedly
intended for his own use
(the crack on his person)
was strong enough that his
use of both drugs “occurred
during the commission of
the offense of conviction.”
Therefore, all amounts of
drugs possessed by Jansen
were properly considered to
be relevant conduct.
(I App. 56)
Recognizing that its decision
conflicted with the holdings of four courts
1 After the District Court issued its
opinion the Court of Appeals for the Sixth
Circuit joined the courts which had held that
in a possession with intent to distribute case
possession of drugs for personal use could not
be considered relevant conduct for sentencing
purposes. United States v. Gill, 348 F.3d 147
(6th Cir. 2003).

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of appeals, the District Court stated that “a
valid question may be raised as to whether
counsel’s failure to object to our sentence
c a lc u l a t io n c o n s t it u t e d d ef i c ie n t
performance.” (I App. 57). However,
because the Court had concluded that all of
the drugs, including those found in
defendant’s pants, should be included, it
found that defendant had suffered no
prejudice from any shortcomings of his
counsel, i.e., he “[had] failed to establish
that there is a reasonable probability that,
but for counsel’s failure to object, the
result of the proceeding would have been
different.” (Id.). The District Court
denied defendant’s claim of ineffective
assistance of counsel.
Defendant requested a certificate of
appealability from this Court. We granted
the request on the issue whether
defendant’s counsel was constitutionally
ineffective for failing to argue at his
sentencing hearing that the drugs seized
from his person should not have been
included in the base offense calculation for
possession with intent to distribute. This
appeal followed.
II. Jurisdiction and Scope of Review
The District Court had subject
matter jurisdiction of defendant’s petition
for post-conviction relief pursuant to 28
U.S.C. § 2255. We have jurisdiction of his
appeal pursuant to 28 U.S.C. §§ 1291 and
2253(a).
The District Court did not make a
finding with respect to Defendant’s
contention that his counsel’s failure to
object to the sentencing computation
constituted deficient performance. Rather
it held that even if performance were
deficient, defendant suffered no prejudice,
ruling that personal use quantities are not
excluded from the base offense level
computation in a possession with intent to
distribute conviction. This ruling raises a
question of law and is subject to plenary
review. Parrish v. Fulcomer, 150 F.3d
326, 327 (3d Cir. 1998).
III. Discussion
To succeed on a claim of
ineffective assistance of counsel, a
defendant must show both that i) the
performance of counsel fell below an
objective standard of reasonableness and
ii) the errors of counsel prejudiced the
defense. Strickland v. Washington, 466
U.S. 668, 687-88, 691-92 (1994). To
establish the first prong a defendant must
“establish . . . that counsel’s performance
was deficient.” Jermyn v. Horn, 266 F.3d
257, 282 (3d Cir. 2001). “This requires
showing that counsel was not functioning
as the 'counsel' guaranteed defendant by
the Sixth Amendment." (Id.).
In the circumstances of this case
defense counsel’s failure to raise the
personal use argument at the time of
sentencing must be deemed to constitute
ineffectiveness. The District Court did not
find otherwise and the government does
not contend otherwise. From the time of
his arrest until he testified at his trial
defendant maintained that the drugs found
in his pants were for personal use. There
was evidence that he intended to sell some
of those drugs in order to finance future

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purchases. At trial the government did not
argue that none of those drugs were for
personal use; rather it argued that some of
the drugs found in defendant’s pants were
to be sold to enable him to continue to
obtain drugs for personal use.
At the time of sentencing two
Courts of Appeals had held that drugs
possessed for mere personal use are not
relevant to the crime of possession with
intent to distribute and should not enter
into the base offense level computation.
United States v. Wyss, supra; United
States v. Kipp, supra. One Court of
Appeals had held that drugs possessed for
personal use should be included in the base
offense level computation in a possession
with intent to distribute case. United
States v. Antonietti, 86 F.3d 206 (11th Cir.
1996). However, Antonietti was not a
mere possession case; it was a case that
included a charge of conspiracy to possess
with intent to distribute and thus arguably
was distinguishable from Wyss and Kipp.
Competent counsel would have advanced
at sentencing the contention that the drugs
defendant claimed were for personal use
should not enter into the computation of
the base offense level.
Despite a strong presumption that
counsel’s performance was reasonable,
Strickland, 466 U.S. at 689, that
presumption is overcome here. The
conclusion that counsel’s performance was
ineffective is not based on hindsight. The
decisions in Wyss and Kipp were readily
available to him. Nor can any considered
sound strategy be discerned for failing to
raise the personal use issue. We have held
that trial counsel is ineffective for failing
to urge that a defendant was entitled to an
arguably available minor role Sentencing
Guideline reduction. United States v.
Headley, 923 F. 2d 1079, 1084 (3rd Cir.
1991). By the same token where defense
counsel fails to object to an improper
enhancement under the Sentencing
Guidelines, counsel has rend ered
ineffective assistance. As the District
Court recognized, the controlling issue is
whether defendant suffered prejudice by
reason of this failure.
If some or all of the drugs
discovered on defendant’s person were for
personal use and if possession of drugs for
personal use should not constitute relevant
conduct when a defendant is sentenced for
possession with intent to distribute,
defendant suffered prejudice in this case.
Even a small reduction in the quantity of
drugs entering into the base offense level
computation would have placed defendant
in a less than 700 to 1,000 kilogram range.
It is for the District Court to determine the
amount of drugs, if any, which defendant
possessed for personal use. Whether such
possession constitutes relevant conduct for
the purpose of computing defendant’s base
offense level is a question of law that has
not yet been decided by this Court.
Defining relevant conduct, U.S.S.G.
§1B1.3 reads in pertinent part:
(a) . . . unless otherwise
specified, (i) the base
offense level where the
guideline specifies more
than one base offense level .

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. . should be determined on
the basis of the following:
(1) (A) a l l a c t s a n d
o m i s s i o n s
committed, aided,
abetted, counseled,
c o m m a n d e d ,
induced, procured, or
willfully caused by
the defendant; and
(B) in the case of a
jointly undertaken
criminal activity (a
c r i m i n a l p l a n ,
scheme, endeavor, or
enterprise undertaken
by the defendant in
concert with others,
w h e t h e r o r n o t
c h a r g e d a s a
c o n s p i r ac y ) , a l l
r e a s o n a b l y
foreseeable acts and
omissions of others
in furtherance of the
jointly undertaken
criminal activity,
that occurred during the
commission of the offense
of conviction, in preparation
for that offense, or in the
course of attempting to
a v o i d d e t e c t i o n o r
respo nsibility for that
offense;
(2) solely with respect to
offenses of a character for
which §3D1.2(d) would
require grouping of multiple
c o u n t s , a ll a c t s a nd
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;2
Applying these provisions, five
Courts of Appeals have held that in a
possession for distribution case possessing
drugs for personal use does not constitute
relevant conduct and the quantity of such
drugs should not be included when
computing the base offense level. Only
the opinion in Antonietti and the dissent in
Fraser take a contrary view.
A common rationale runs through
each of the five majority opinions. Each
contrasts the seriousness of the offense of
distributing drugs with that of possession
for one’s personal use and rejects an
interpretation of the guidelines that would
punish each of these offenses with equal
severity. For example, in Kipp the Court
observed that “. . . failure to distinguish the
amount possessed for personal use from
the amount possessed for distribution
contravenes a fundamental principle of the
Sentencing Guidelines - proportionality in
sentencing - because it would result in
sentencing a drug user who possessed 50
grams for personal use and gave one away
more harshly than a drug dealer who
2 These provisions in the 1998
Guidelines Manual are the same as the
provisions in the current manual.

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possessed 49 grams for distribution.” 10
F.3d at 1466. Although arriving at the
same conclusion, the various Courts have
reached that destination by different
routes.
Two of the cases, Kipp and
Williams, rely upon Section (a)(2) of
U.S.S.G. §1B1.3. In Kipp the Court
stated:
The guidelines instruct the
District Court to calculate
the base offense level using
only the quantity of drugs
involved in the count of
conviction and quantities
that “were part of the same
course of conduct or part of
a common scheme or plan
as the count of conviction.”
U.S.S.G. § 1B1.3(a)(2).
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
d r u g s i n t e n d e d f o r
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.
10 F.3d at 1465, 66 (footnote omitted).
Similarly in Williams the Court held that
“[u]nder 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,” and that
drugs possessed for personal use are not
“part of the same course of conduct” or
“common scheme” as drugs intended for
distribution. 247 F.3d at 357. The Court,
as have the other Courts of Appeals,
distinguished Antonietti on the basis that
Antonietti involved a conspiracy to
possess with intent to distribute,
implicating different considerations, see
U.S.S.G. §1B1.3(a)(1)(B).
Two of the Courts, while agreeing
with the results in Kipp and Williams,
reject reliance on Section (a)(2), and either
expressly or by implication rely on Section
(a)(1) of U.S.S.G. § 1B1.3 for their
conclusion that possession for personal use
is not relevant conduct in a distribution
case. They note that Section (a)(2) applies
“solely with respect to offenses of a
character for which § 3D1.2(d) would
require grouping of multiple counts” and
further note that simple possession is not
one of the crimes listed in the grouping
rule. As the Court stated in Gill:
Simple possession is not
“relevant” under Section
1B1.3(a)(2), as “part of the
same course of conduct or
common scheme or plan,”
because that section applies

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only if the two offenses can
be grouped under Section
3D1.2(d). See Hill, 79 F.3d
at 1482. Simple possession
is not one of the crimes
listed in this grouping rule
that triggers the application
of that relevant conduct
section.
348 F.3d at 153. Wyss is to the same
effect. Citing Section (a)(2) the Court
stated that “[t]o count as relevant conduct
under the federal sentencing guidelines, a
drug offense . . . must be part of the same
course of conduct or common scheme or
plan, as the offense of conviction.” Then
he noted that “[i]t can be that only if it is
part of the same group of offenses for
sentencing purposes.” 147 F.3d at 632.
This suggests that the Court was stating
that if Section (a)(2) were applicable
possession of drugs for personal use would
be relevant conduct as part of the same
course of conduct or common scheme.
This, of course, is contrary to the opinions
in Kipp and Williams which held that
Section (a)(2) is applicable but that
possession for personal use is not part of
the same course of conduct or common
scheme to posses for distribution. The
Court in Wyss concluded, however, that
Section (a)(2) was not applicable because
possession for personal use cannot be
grouped with other offenses.
Wyss, after rejecting reliance on
Section (a)(2), did not refer to Section
(a)(1), but by implication must have
concluded that Section (a)(1) did not
render mere possession for use relevant
conduct in a possession with intent to
distribute case. The opinion set forth
common sense reasons for excluding
possession of drugs for personal use as
relevant conduct.
In Gill the Court, having held
Section (a)(2) to be inapplicable, relied on
Section (a)(1) for its holding that
possession of drugs for personal use is not
relevant conduct when computing the base
offense level in a possession for
distribution case:
Uncharged conduct may be
considered in calculating the
sentencing range under the
Sentencing Guidelines only
if the conduct is “relevant.”
Returning to the Sentencing
G u i d e l i n e s M a n u a l ’ s
language - - which we
hesitate to describe as
“plain,” although it is
u n e q u i v o c a l - - t h e
defendant’s possession of
drugs for personal use
cannot be considered an
“act[ ] . . . that occurred
during the commission of
the offense of conviction, in
preparation for that offense,
or in the course of
a t t e m p t i n g t o a v o i d
detection or responsibility
for that offense” under
Section 1B1.3(a)(1), since
the offense of conviction
required an intent to
distribute to accompany the
act of drug possession under

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21 U.S.C. § 841(a).
P o s s e s s i n g d r u g s f or
personal use was not part of
o r c o n n e c te d t o th e
commission of, preparation
for, or concealment of the
distribution type offense.
348 F.3d at 153 (citations omitted).
It is not entirely clear whether the
majority opinion in Fraser relied on
Section (a)(2) for its holding that
possessing drugs for personal use is not
relevant conduct in a possession for
distribution case. The opinion cited
approvingly both Wyss, which rejected
reliance on Section (a)(2), and Kipp,
which relied on Section (a)(2). By
implication the majority opinion holds that
Section (a)(1) does not require that
possessing drugs for personal use be
deemed relevant conduct in a possession
with intent to distribute case.
By one route or another five Courts
of Appeals have reached the same
conclusion. Only the Court of Appeals for
the Eleventh Circuit has held that when
calculating the base offense level under §
2D1.1 of the Guidelines drugs possessed
for personal use should be included.
United States v. Antonietti, supra. Kipp
was decided before the decision in
Antonietti. Each of the relevant Court of
Appeals cases that was decided after
An tonietti distinguished An tonietti,
pointing out that it was not a simple
possession with intent to distribute case;
rather it dealt with not only possession
with intent to distribute but also conspiracy
to distribute. In a conspiracy the amount
of drugs involved is unaffected by the use
that a defendant makes of the drugs. Gill,
348 F.3d at 154, Williams, 247 F.3d at
357-58, Fraser, 243 F.3d at 475 n.4; Wyss,
147 F.3d at 632. The dissent in Fraser
advanced the position that Fraser’s
“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 contained 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.’” 243 F.3d at 476-
77 (emphasis in original). The dissent
emphasized that “[t]he attempted drug
purchase was one transaction involving a
single, fungible quantity and a single type
of drug” and, relying on Antonietti,
concluded that “whether Ms. Fraser
purchased some of the drugs for her
personal use ‘make[s] no difference’ in
computing her sentence under the
Guidelines.” 243 F.3d at 477.
The District Court in the instant
case found the reasoning of the dissent
persuasive. The Court noted that all the
seized drugs derived from a single
purchase in New York City, although
some of the drugs were transported in a
VCR and some were stored in defendant’s
pants. It, therefore, held that, applying
U.S.S.G. § 1B1.3(a)(1)(A), all of the drugs
should be included in the computation of
the base offense level.
The government urges that we
adopt the rule advanced in the Fraser

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13
dissent and applied by the District Court,
contending that “the operation of section
1B1.3(a)(1) is not qualified by the
operation of section 1B1.3(a)(2), and the
base offense level was p roperly
‘determined on the basis of all acts . . .
committed [ ]. . . by the defendant . . . that
occurred during the commission of the
offense of conviction.” (Govt. Brief at 29,
30). The government argues that U.S.S.G.
§ 1B1.3(a)(1)(A) says nothing about
whether an act need be part of a scheme or
plan to distribute drugs in order to be
counted as relevant conduct. Rather,
under § 1B1.3(a)(1)(A), if the act
“occurred during the commission of the
offense of conviction,” it is relevant. If
this argument were accepted defendant’s
possession for personal use occurred
during the commission of the crime of
possession with intent to distribute and
should, therefore, be considered relevant
conduct. In such event he would not have
been prejudiced by the failure of his
counsel to have raised the issue at the time
of sentencing.
Contrary to the government’s
contentions, we conclude that Section
(a)(2) is applicable, that mere possession
of a drug for personal use is not part of the
same course of conduct or common
scheme as the offense of possession with
intent to distribute drugs and that Section
(a)(1) is not applicable.
As observed by the five Courts of
Appeals that have reached a similar
ultimate conclusion, this result is in accord
with an overall objective of the Sentencing
Guidelines. The crime of possession for
personal use is qualitatively very different
from the crime of possession with intent to
distribute and merits a significantly
different level of punishment. Were the
quantity of drugs possessed for use added
to the quantity possessed for distribution
serious sentencing anomalies could result.
As stated in Kipp, it would contravene “a
fundamental principle of the Sentencing
G u i d e l in e s - p r o p o r t i o n a l i t y i n
sentencing.” 10 F.3d at 1466.
The government has argued, and
several Courts have agreed, that Section
(a)(2) is inapplicable because it applies
“solely with respect to offenses of a
character for which §3D1.2(d) would
require grouping of multiple counts,” and
the offense of simple possession is not
groupable under that section. We
conclude, however, that the “offenses” to
which reference is made in Section (a)(2)
are the offenses, or offense, of conviction,
in this case possession of drugs for
distribution covered by U.S.S.G. §2D1.1 (a
groupable offense). An offense within the
meaning of Section (a)(2) is not the crime
constituting asserted relevant conduct, in
this case mere possession of drugs covered
by U.S.S.G. §2D2.1. In other words
Section (a)(2) defines what constitutes a
defendant’s relevant conduct when the
offense of conviction is a groupable
offense, regardless of the nature of the
alleged relevant conduct. In this respect
we disagree with the Courts of Appeals
which have held that because simple
possession of drugs is not a groupable
offense Section (a)(2) is inapplicable.
This conclusion and our further

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14
conclusion that Section (a)(2) stands on its
own and is not expanded or superseded by
the provisions of Section (a)(1) finds
support in the Application Notes to
U.S.S.G. §1B1.3. Application Note 1
treats the two sections as two distinct
provisions3. Application Note 2 deals
extensively with Section a(1)(A) and (B).
Application Notes 3 through 10 largely
govern Section (a)(2). Application Note 3
provides in part, that “‘[o]ffenses of a
character for which §3D1.2(d) would
require grouping of multiple counts,’ as
used in subsection (a)(2), applies to
offenses for which grouping counts would
be required under § 3D1.2(d) had
defendant been convicted of multiple
counts.” That describes the circumstances
in the present case, in which the drug
distribution offe nse is groupable .
Application Note 10 emphasizes the
different approaches of Sections (a)(1) and
(a)(2) stating in part “[s]ubsections (a)(1)
and (a)(2) adopt different rules because
offenses of the character dealt with in
subsection (a)(2) (i.e., to which §3D1.2(d)
applies) often involve a pattern of
misconduct that cannot readily be broken
into discrete, identifiable units that are
m eaningful for the purposes of
sentencing.”
We have alluded above to the
significant differences between the offense
of mere possession of drugs and the
offense of possession with intent to
distribute. In light of these differences one
who happens to possess drugs for his own
personal use is not engaged in a “common
scheme or plan” with or the “same course
of conduct” as, the perpetrators (including
himself) of a distribution scheme. This
conclusion is in accord with the Guideline
Commentary discussing these terms4.
3 “. . . Under subsections (a)(1) and
(a)(2), the focus is on the specific acts and
omissions for which the defendant is to be
held accountable in determining the applicable
guideline range . . .”
4 9. “Common scheme or plan” and
“same course of conduct” are two closely
related concepts.
(A) Common scheme or plan. For two
or more offenses to constitute part of a
common scheme or plan, they must be
substantially connected to each other by at
least one common factor, such as common
victims, common accomplices, common
purpose, or similar modus operandi. For
example, the conduct of five defendants who
together defrauded a group of investors by
computer manipulations that unlawfully
transferred funds over an eighteen-month
period would qualify as a common scheme or
plan on the basis of any of the above listed
factors; i.e., the commonality of victims (the
same investors were defrauded on an ongoing
basis), commonality of offenders (the conduct
constituted an ongoing conspiracy),
commonality of purpose (to defraud the group
of investors), or similarity of modus operandi
(the same or similar computer manipulations
were used to execute the scheme).
(B) Same course of conduct. Offenses
that do not qualify as part of a common
scheme or plan may nonetheless qualify as
part of the same course of conduct if they are
sufficiently connected or related to each other

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15
Thus we agree with the majority of
the Courts of Appeals to address the issue
(Kipp, Wyss, Williams, Fraser majority
and Gill) that possession of drugs for
personal use is not part of the same course
of conduct or common scheme or plan as
possession with intent to distribute and
therefore is not relevant conduct in a
distribution case5.
If any significant portion of the
drugs found in defendant’s pants was for
personal use he was prejudiced by the
failure of his counsel to object to the
inclusion of such drugs in the computation
of his base offense level. The quantity of
drugs that defendant held for personal use,
if any, will require a finding by the District
Court.
The Fraser dissent notes a problem
with which district courts will have to deal
when applying the requirement to exclude
drugs possessed for personal use in
distribution cases: “[t]o 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.”
242 F.3d at 477. The relevant cases
illustrate this problem. In Kipp the
defendant admitted to possessing 80 to 90
grams of cocaine but argued that he
possessed all but five or six grams for his
own personal use. In Fraser the defendant
was arrested when she attempted to
p u r c h a s e 4 5 6 . 6 g r a m s o f
methamphetamine. At the sentencing
hearing she testified that she intended to
consume the majority of the drugs; the rest
she intended to distribute to family and
friends. The government produced
as to warrant the conclusion that they are part
of a single episode, spree, or ongoing series of
offenses. Factors that are appropriate to the
determination of whether offenses are
sufficiently connected or related to each other
to be considered as part of the same course of
conduct include the degree of similarity of the
offenses, the regularity (repetitions) of the
offenses, and the time interval between the
offenses. When one of the above factors is
absent, a stronger presence of at least one of
the other factors is required. For example,
where the conduct alleged to be relevant is
relatively remote to the offense of conviction,
a stronger showing of similarity or regularity
is necessary to compensate for the absence of
temporal proximity. The nature of the
offenses may also be a relevant consideration
(e.g., a defendant’s failure to file tax returns in
three consecutive years appropriately would
be considered as part of the same course of
conduct because such returns are only required
at yearly intervals).
U.S.S.G. §1B1.3(a)(1), Application Note 9.
5 In his concurring opinion Judge Alito
expresses reservations about this conclusion
and notes that “[i]t seems likely that the
Sentencing Commission has not considered
this issue.” While we have concluded that the
position of the majority of the Courts of
Appeals is consistent with the structure and
commentaries of the Sentencing Guidelines,
Judge Alito’s suggestion that the Commission
address the issue specifically as soon as
possible makes good sense.

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evidence that the defendant had sold
methamphetamine in the past. In Williams
the defendant, a chronic drug user, claimed
that a major part of the 68.9 grams seized
upon his arrest was for personal use. In
Gill the defendant contended that of the
35.4375 grams of cocaine in his possession
only 6.8 grams was possessed with intent
to distribute. Each case was remanded so
that the district court could determine the
amount of drugs possessed for personal
use and for re-sentencing based upon only
the drugs possessed for distribution.
Fortunately the already existing
record in the present case permits the
District Court to make a reasonable
calculation of the amount, if any, of the
drugs contained in defendant’s pants that
were intended for personal use without the
necessity of a full blown evidentiary
hearing.
IV. Conclusion
We have concluded that when
sentencing a defendant for possession of
drugs with intent to distribute the court
should not include for the purpose of
computing the base offense level drugs
which the defendant possessed for
personal use. Accordingly, the order of
the District Court will be reversed and the
case remanded for further proceedings in
accordance with this opinion.
ALITO, Circuit Judge, concurring.
The issue presented in this
case is one that should be resolved by the
Sentencing Commission. The position
taken by most of the courts of appeals
regarding the application of U.S.S.G. §
1B1.3(a)(1) and (2) in this context is not
easy to reconcile with the language of
those provisions, and there seem to be
reasonable policy arguments on both sides
of the question. On the one hand, it may
be argued that drugs possessed solely for
personal use should not have the same
sentencing consequences as those
possessed for distribution. On the other
hand, when it has been proven that a
defendant possessed drugs with the intent
to distribute, the difficulty of deciding
whether some portion of those drugs was
possessed solely for personal use may
counsel against a rule requiring such a
determination.
It seems likely that the Sentencing
Commission has not considered this issue.
If it has, it certainly has not made that
clear. If it has not, it should. In view of
the position taken by the great majority of
the courts of appeals, I concur in this case,
but I urge the Sentencing Commission to
address the issue as soon as possible.

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