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United States v. Wilson.

No. 19-7048. E.D.Okla. Judge Ebel. Methamphetamine Distribution—“Relevant Conduct” under Sentencing Guidelines—Personal Use Exclusion—Burden of Proof.

November 8, 2021


Defendant sold 1.54 grams of methamphetamine to a confidential informant. Based on the controlled buys and additional information from the confidential informant, a search warrant issued for defendant’s residence. Investigators executed the warrant and found evidence supporting methamphetamine distribution. Defendant later admitted to buying a total of 113.4 grams of methamphetamine since his release from prison nine months earlier. He told a Bureau of Alcohol, Tobacco, Firearms, and Explosives special agent that he personally consumed most of that amount and sold the rest to supply his habit. A witness informed the agent that she had purchased 1 to 3.5 gram quantities of methamphetamine from defendant on 10 to 15 occasions over the previous eight months. Defendant pleaded guilty to one count of distribution of methamphetamine. The second count was dismissed at sentencing.

The presentence investigation report calculated defendant’s base offense level based on the amount of methamphetamine deemed “relevant conduct” under the US Sentencing Guidelines (USSG). This amount included the 113 grams defendant admitted buying. Defendant objected to inclusion of the 113 grams, arguing that the sentence should be based only on the 1.54 grams directly associated with the offense of conviction. At the sentencing hearing, defendant did not call any witnesses or submit evidence in support of the objection but argued there was no evidentiary basis to hold him accountable for the 113 grams because it was unclear how much was for personal use. The district court found defendant accountable for the 113 grams.

Defendant appealed the sentence, arguing that the district court erred in factoring the 113 grams into the base offense level calculation. A defendant convicted of simple distribution is sentenced based on the underlying drug quantity. That quantity includes not just the quantities specified in the count of conviction, but also those deemed “relevant conduct” to the offense under the USSG. Under USSG § 1B1.3(a)(1)(A), any personally consumed portion would not be “part of or connected to the commission of, preparation for, or concealment of” the distribution offense because it was not possessed with the intent to distribute and therefore not part of the relevant conduct. Determining whether conduct is relevant requires a case-by-case assessment of the connection between the personal use quantity and the offense of conviction. The government bears the burden of proving the relevant conduct quantities by a preponderance of the evidence, but a defendant who wishes to exclude a specific drug quantity as for personal use has the burden of coming forward with some evidence that the quantity was intended for such use or was personally consumed. If the defendant establishes personal use, the burden shifts back to the government to rebut or accept the defendant’s evidence. Here, defendant failed to meet his burden of producing evidence that not all 113 grams were possessed with intent to distribute. However, because the Tenth Circuit announced the burden of proof allocation for the first time here, it determined that the appropriate remedy was to vacate the sentence and provide both sides an opportunity to present evidence on the issue of personal use.

The sentence was reversed and the case was remanded for further sentencing proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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