Drug Quantity Proof / Evidence at Sentencing
In United States v. Rowe, No. 18-1192 (Apr. 2, 2019), the Third Circuit vacated the defendant's conviction for distribution and possession with intent to distribute 1,000 grams of heroin because the government failed to prove that he distributed or possessed 1000 grams or more in a single unit, instead relying on evidence of multiple smaller distributions and possessions during the indictment period. The Court also vacated the defendant's sentence because the evidence presented at sentencing was unreliable. On remand, the Court instructed that the district court should enter a judgment of conviction for possession with intent to distribute 100 grams of heroin and resentence the defendant without the government being permitted to introduce additional evidence on drug quantity.
The defendant was charged with distribution and possession with intent to distribute 1,000 grams of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Under § 841(b)(1)(A)(i), an offense involving 1,000 grams or more of heroin is punishable by 10 years to life, whereas under § 841(b)(1)(B)(i), an offense involving 100 grams or more of heroin is punishable by 5 to 40 years. Because the weight involved in the crime increases the statutory penalty, it is an element of the offense that must be proved to a jury beyond a reasonable doubt. Here, the defendant conceded to distributing heroin, but claimed he had only distributed 200 grams, so the trial focused on the precise quantity involved in the crime.
To prove its case at trial, the government relied on three key pieces of evidence and testimony: (1) a confidential informant who said that over the course of several months the defendant sold him over 1,000 grams of heroin in small amounts, and who also said he saw the defendant with numbered packages and a ledger of drug sales, (2) a DEA special agent who used his experience to analyze the defendant's drug ledger and to explain that a dealer who sells 200 grams of heroin likely has access to multi-kilogram quantities, and (3) the defendant's drug ledger.
In his closing argument, the prosecutor argued, based on the evidence of multiple distributions, that the government presented sufficient evidence to prove the 1000 gram drug weight based upon figures in the defendant’s drug ledger and the confidential informant’s testimony. At the close of trial, the district court instructed the jury that it had to decide "whether the government had proved beyond a reasonable doubt that [the defendant] distributed 1 kilogram or more of heroin." The jury had the option of returning a conviction on the 1,000 gram charge, and also to return a verdict on a lesser-included 1000 gram charge. It ultimately returned a guilty verdict for both drug weights.
At sentencing, the district court relied on a pre-sentence report calculating a total drug weight of at least 10 kilograms of heroin, resulting in a base offense level of 34 under U.S.S.G. § 2D1.1(c)(3). This determination was based on a statement the defendant was alleged to have made at the time of his arrest, yet evidence of that statement had been excluded at trial and the government presented no evidence regarding the statement at sentencing. Despite Rowe’s objection, the Court adopted the pre-sentence investigation report without change and imposed a within-Guidelines sentence of 151 months’ imprisonment followed by five years’ supervised release.
On appeal, the defendant argued that there was not sufficient evidence to support his conviction for distributing or possessing with intent to distribute 1,000 grams of heroin because there was no evidence of a single transaction involving over 1,000 grams, and that the district court was wrong to rely on the drug calculation in the PSR. The Court agreed with both arguments.
First, the Court held that the evidence was insufficient to support the 1,000 gram verdict because "the Government did not present evidence of a single distribution involving 1,000 grams or more of heroin." Instead, "the prosecutor mistakenly believed that distribution of 1,000 grams could be proven by combining several distributions that, in total, involved 1,000 grams of heroin." The Court rejected the government's argument that the evidence was still sufficient to support a conviction for possession with intent to distribute 1,000 grams, explaining that "possession of 1,000 grams of heroin begins when a defendant has the power and intention to exercise dominion and control over all 1,000 grams, and ends when his possession is interrupted by a complete dispossession or by a reduction of that quantity to less than 1,000 grams." The Court observed that while the evidence showed that the defendant had distributed a total of 1,000 grams of heroin over the course of several months, it did not establish that he ever possessed or distributed 1,000 grams at any one time. The Court therefore vacated the 1,000 gram conviction and remanded for the district court to enter judgment solely on the 100 gram verdict.
Second, the Court held that the government should not be permitted to develop the record on the drug weight issue at sentencing. The Third Circuit further found that the district court had erred in relying on the PSR's drug calculation, which incorporated an alleged admission by the defendant for which the government had never presented any evidence. Because the government typically gets only one opportunity to present evidence at sentencing, absent a compelling reason otherwise, the Court instructed that "the government will not be permitted to introduce additional evidence regarding drug quantity" at resentencing.