which § 3D1.2 (d) would
require grouping of multiple counts, all acts and 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." In Kipp,
for example, the Court held that "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 drugs intended for distribution." 10 F.3d at 1465-66. Wyss
reached the same result, citing Kipp, 147 F.3d at 632, as did the Court
of Appeals here. 247 F.3d at 358.
It is with the continuing cognizance of the deference owed by this
Court to a decision of the Appellate Court see United States v. Seltzer,
127 F. Supp.2d 172, 175 (E.D.N Y 2000), that I dare to suggest that in
deciding that U.S.S.G. § 1B1.3 (a)(2) was applicable to Williams, it
U.S.S.G. § 3D1.2, cross-referenced in § 1B1.3 (a)(2), is
captioned "Groups of Closely Related Counts." It is found in U.S.S.G.
Chapter 3, Part D headed Multiple Counts. Each subdivision of § 3D1.2
refers to "counts" with the exception of (d) which contains no reference
to the words "count" or "counts." However, the Commentary and Application
Notes 6, 7 and 8 to § 3D1.2 are instinct with the sense that this
Grouping Guideline is applicable to cases in which multiple counts or
conspiracy to commit several offenses are charged.
It is this Court's view that the applicable, relevant Guideline is
U.S.S.G. § 1B1.3 (a)(1)(A), which provides that the base offense
level shall be determined by considering "all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant." Application Note 2(ii) to that
section teaches that "With respect to offenses involving contraband
(including controlled substances), the defendant is accountable for all
quantities of contraband with which he was directly involved. .. ." That
teaching of the intended reach of § 1B1.3 (a)(1)(A) fits this case
precisely. The search of Williams' apartment yielded amounts of cocaine
base, cocaine and marijuana - "quantities of contraband with which he was
directly involved" and evidenced conduct clearly relevant to a
determination of the base offense level. There is no other act, no other
omission, no "common scheme or plan" to be considered as relevant that
are outside the boundary of the offense of conviction, namely, that on
August 25, 1992, Timothy Williams possessed cocaine base (crack).
In addition and more pertinent to this case, the Guidelines compel the
conclusion that simple possession of cocaine base, whether or not for
personal use, which is made unlawful by 21 U.S.C. § 844 is "part of
the same course of conduct" even if § 1B1.3 (a)(2) were applied. The
Guideline applicable to a violation of 21 U.S.C. § 841 (b)(1)(A),
possession with intent to distribute, is § 2D1.1. The Guideline
applicable to a violation of 21 U.S.C. § 844 (simple possession) is
§ 2D2.1 subparagraph (b)(1) of which provides in relevant part: "If
the defendant is convicted of possession of more than 5 grams of a...
substance containing cocaine base, apply § 2D1.1 . . . as if the
defendant is convicted of possession of that. . . substance with intent
to distribute." The Guidelines aside, simple possession is a lesser
offense of possession with intent to distribute. If "[a] lesser
included offense is simply an offense that requires proof of only a
subset of the elements of the greater offense," United States v. Hill,
196 F.3d 806, 808 (7th Cir. 1999), then clearly simple possession of
crack is a lesser included offense of possession with intent to
distribute crack. See, e.g., United States v. Gore, 154 F.3d 34, 46 (2d
Cir. 1998) ("[W]e have consistently held that simple possession in
violation of 21 U.S.C. § 844 is a lesser included offense of
possession with intent to distribute."); United States v. Monk, 15 F.3d 25
(2d Cir. 1994); United States v. Garcia-Duarte, 718 F.2d 42, 47 (2d Cir.
1983). To say that the two are not "part of the same course of conduct"
strikes me as being neither good logic nor good law.
B. A DUE PROCESS CONCERN
The direction given this Court to determine the quantity of drugs
Williams intended for personal use gives rise to a question with due
process implications. That concern stems from the importance of
distinguishing between a determination of the kind and amount of drugs
for which a defendant should be held accountable and a determination of
his intent with regard to those drugs.
At the time Williams was sentenced (pre-Apprendi v. New Jersey,
530 U.S. 466, 476, 120 S.Ct. 2348, 2355 (2000)) it was for the judge to
determine the amount and kind of drugs which were not elements of the
offense of possessing a controlled substance in violation of
21 U.S.C. § 841 (a)(1) and was not required to be proved at trial
beyond a reasonable doubt. Rather it was for the judge to make that
determination by a preponderance of the evidence at sentencing. Edwards
v. United States, 523 U.S. 511, 513-14 (1998). The holding of Edwards
that it is for the judge alone to determine the kind and quantity of
drugs when imposing sentences short of the statutory maximum was not
affected by Apprendi. See United States v. Garcia, 240 F.3d 180, 183 (2d
Cir. 2001); Talbott v. Indiana, 226 F.3d 866, 869-70 (7th Cir. 2000). The
intent with which the defendant possessed the drugs is, however, an
element of the offense and the government bears the burden of proving
that intent beyond a reasonable doubt when the defendant elects a trial.
United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995). In
Apprendi, the Supreme Court decided that "any fact (other than a prior
conviction) that increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt." 530 U.S. at 476. The intent with which the defendant
possessed drugs would increase the maximum penalty that would be imposed
for the simple possession of drugs in violation of 21 U.S.C. § 844.
In remanding the case to this Court to determine the quantity the
defendant intended to possess for personal use, this Court is being
directed to determine an element of the offense which a properly
instructed jury was required to and has already made beyond a reasonable
As has already been observed, this case is distinguishable from Kipp
and Wyss in that Williams elected to put the government to its proof at
trial. In that event, logic would suggest that the burden of proving the
quantity of drugs he intended to possess for personal use was his. It is
difficult to conceive how that fact could be proved by the government.
The Court in Wyss alluded to that when it wrote "Maybe, when the
defendant buys drugs both for his own consumption and for resale, he has
some burden of producing evidence concerning the amount he consumed
— he cannot just say to the government, "I'm an addict, so prove
how much of the cocaine that I bought I kept for my own use rather than
to resell.' This we need not decide." 147 F.3d at 633. Our Circuit Court
did decide the issue, however, when in United States v. Martinez,
54 F.3d 1040, 1043 (2d Cir. 1995), cert. denied
516 U.S. 1001 (1995), it
wrote "[T]he government did not have to prove beyond a reasonable doubt
the subsidiary fact that Martinez did not use drugs.
Williams elected to stand upon his constitutional right to remain
silent at his trial. He never suggested that any portion of the cocaine
based seized from his apartment was intended for his personal use either
then or when he was sentenced. Indeed, he continued to remain silent for
eight years and his belated claim that his possession of crack was thus
intended is belied by his declaration that he was drug-free as reported
in his PSR to which he took no exception.
In making the observation initially that the implications of the
decision of the Court of Appeals for district courts are significant, I
contemplated that the interpretation of that decision will be seized upon
to mean that in prosecuting a defendant for possession with intent to
distribute a controlled substance, it will be the government's burden to
prove how much of the controlled substance the defendant intended to
distribute and how much he intended for personal use, a burden which is
obviously impossible to bear and which, as has already been indicated,
the Court said the government need not bear. See Martinez, supra.
Indeed, a careful reading of the cases makes plain that whether a
quantity of drugs possessed by the defendant was intended for personal
use is a defense for which the defendant bears the burden of proof.
United States v. Monk, 15 F.3d 25, 26 (2d Cir. 1994) ("At trial Monk
pressed his defense that he had no intent to distribute the crack, but
intended it for his personal use"); Martinez, 54 F.3d at 1043 ("In
addition, and particularly in light of Martinez's admission that he was
not a user, his physical possession of a scale, cut, and a loaded firearm
supported the jury's rejection of his personal-use defense.")
C. THE REMAND
In concluding its opinion the Court of Appeals wrote that:
[T]here is nothing in the record that would permit
this court to affirm Judge Glasser's conclusion as to
the quantity of cocaine that Williams intended to
distribute. As a result, the judgment of the district
court must be vacated, and the case remanded for
further proceedings. In this respect, we note that,
though the defendant has "no absolute right to present
witnesses or to receive a full blown evidentiary
hearing' (citation omitted) and hence, the district
court is not required to hold a hearing with respect
to this issue, it would go a long way toward
clarifying what quantity of drugs is relevant to
Williams' § 841 conviction if the record were
supplemented in this way.
247 F.3d at 359.
Accepting the Court's teaching that I am not required to hold a hearing
I will not do so but will "clarify" my conclusion concerning the quantity
of drugs that are relevant to the defendant's § 841 conviction. I
found that the entire quantity of cocaine base seized from his apartment
was intended for distribution based upon a record which compelled that
conclusion. I am puzzled by the determination by the Court of Appeals
that "there is nothing in the record that would permit [that] Court to
affirm [my] conclusion as to the quantity of cocaine that Williams
intended to distribute" id at 359, given the acknowledgment in Martinez,
54 F.3d at 1046 (Calabresi, J., concurring), that a case should be judged
"on the basis of the whole evidentiary record." Nevertheless, in light of
its determination, I am obliged to address it by setting out once again
evidentiary record" upon which my conclusion was based.
1. Upon his arrest, Williams told Special Agent Robert
Berger that he cooked up himself the cocaine powder
that he bought and sold it himself and that with the
money he was making from selling drugs he would buy
jewelry and clothes for his wife and children.
As in Martinez, Williams' own statement "can readily
support a jury's finding that he was not a user." Id. at
2. Williams never testified, or offered any evidence
at trial, or asserted when he was sentenced some eight
years ago, or on appeal from his conviction, that he
was a drug user who possessed the drugs for his
personal use. Id. at 1042.
3. Williams never took exception or objected to his
psr which reflected his statements that he cooked the
crack himself, placed it into vials himself and sold
it. Received in evidence were three bags of crack
4. The possession of a triple-beam scale, strainers, a
bullet proof vest and a virtual arsenal of guns.
Because a gun is generally considered a tool of the trade for drug
dealers it is also evidence of intent to distribute. "Moreover
[Williams'] possession of the loaded firearm, irrespective of whether he
was or was not a user, and especially in the context of this case, by
itself provided strong evidence of his intent to distribute." Id. at 1043
and cases cited there.