Jeremy Gordon

Tenth Circuit provides framework for Personal Use in drug possession cases: Wilson

The Tenth Circuit provided a framework to determine what is personal use for purposes of the guidelines.

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Wilson's Mixture of Personal Use Drugs and Drugs for Sale

Wilson sold one gram of meth to a confidential informant twice.  The police used this to get a warrant against Wilson.  They also questioned Wilson who admitted to buying a total of 113.4 grams since his release from prison nine months earlier.  He also indicated that he consumed most of that amount and sold the rest to supply his own habit. 

The police also interviewed another person who indicated that she bought meth from Wilson, including several “eight balls.” This happened on several different dates. 

Wilson was indicted for two counts of distribution of methamphetamine.  The presentence investigation report came back and did not make a distinction between what Wilson bought for personal use or what he sold to others.  Wilson did not testify at sentencing.  The defense attorney indicated that there was no evidentiary basis to hold Wilson Accountable for the 113 grams because “there’s just no way to measure it.”  The district court indicated that Wilson was responsible for the 113 grams that he admitted purchasing and the assertion of personal consumption did not mitigate this because the 113 grams was actually four one-ounce purchases.  The court found that was a distributable amount and sentenced Wilson without regard to any amount of drugs that were for personal use

Personal Use Drugs are not Relevant Conduct

Relevant conduct is covered in the Federal Sentencing Guidelines.  Specifically USSG 1B1.3.  This covers all acts and omissions that were committed by the defendant and conduct that occurred during the commission of the offense of conviction, in preparation for that offense or in the course of attempting to avoid detection or responsibility for that offense.  Further, other sentencing guidelines would require grouping of multiple counts, all acts and all omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. 

The court determined that whether possession of drugs with intent to consume may or may not always be grouped with drugs for simple distribution or possession with intent to distribute:

Under the grouping rules, possession of drugs with intent to consume them does not group with simple distribution or possession with intent to distribute. The offense of simple possession falls under § 2D2.1 and is specifically excluded from the operation of  § 3D1.2 (the grouping provision). Because simple possession is not a groupable offense, subdivision (a)(2) is inapplicable….Whether a personal-use quantity falls within that subdivision will depend on the facts of each case, specifically, on the offense of conviction and the nexus between the personal-use quantity and that offense. Where possessing the drugs for personal use “was not part of or connected to the commission of, preparation for, or concealment of” the distribution offense, the personal-use quantity will not constitute relevant conduct. 

On the other hand, if there is a sufficient connection between the personal-use quantity and the distribution offense of conviction, a personal-use quantity might satisfy subdivision (a)(1)(A).”

Here, the court held that there was no connection between the personal use drug quantities and the offense of conviction and as such the personal use drugs could not be included in the sentencing quantity. 

The Test for Personal Use Drugs

Further, the court developed a test to determine what to do when a defendant claims that there is a quantity for personal use:

“Accordingly, we hold that although the government retains the ultimate burden of proof, a defendant who wishes to exclude a specific drug quantity as for personal use has the burden of coming forward with some evidence that that quantity was intended for such use or was personally consumed. Once sufficient evidence has come forward from the defendant to establish personal use, the burden falls back to the government either to rebut or accept the defendant’s evidence.”

Wilson's Case was Reversed so he Could Make a Case

Finally, the court here determined that while Wilson failed to present evidence that showed that any amount of drugs attributable to him was for personal use, the court remanded the case back to the district court for resentencing so that he would have that opportunity. 

The Fifth Circuit remanded the case back down to the district court.  

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