Criminal – Cocaine Quantity – Reasonably Foreseeable

Where the district court, in sentencing defendants for drug charges under 21 U.S.C. § 841, failed to determine the quantity of narcotics reasonably foreseeable to each individual coconspirator within the scope of their agreements, such a determination must be made prior to a determination of the applicability of the mandatory minimum sentencing provisions of § 841(b).

Because the district court did not make this determination of reasonable foreseeability before application of the statute, we vacate the sentences imposed on defendants pursuant to § 841(b).

As an alternative to the mandatory minimum sentences, the district court imposed sentences on two defendants pursuant to the sentencing guidelines. We find no error with these sentences, and therefore affirm the sentences imposed on this basis. Further, we find no error with the guideline sentence imposed on a third defendant; accordingly, we also affirm his sentence. Because the alleged trial errors raised by all three defendants are without merit, we affirm their convictions.

The issue defendants ask us to resolve is whether, in arriving at the proper quantity of narcotics for purposes of sentencing under § 841(b) following a finding of guilt for violation of § 846, a district court must determine the quantity of narcotics reasonably foreseeable to an individual coconspirator, rather than automatically rely on the quantity attributed to the conspiracy as a whole.

An examination of the legislative history of § 846 leads us to conclude that the most reasonable interpretation of the relevant statutory provisions requires a sentencing court to assess the quantity of narcotics attributable to each coconspirator by relying on the principles set forth in Pinkerton v. U.S., 328 U.S. 640 (1946).

The legislative history indicates that Congress intended not to increase exposure for criminal punishment beyond that already available, but to synchronize the penalties for conspiracies and their underlying offenses by ensuring that a defendant who is charged with only conspiracy not be in a better position for sentencing than one who is charged solely with possession of the same amount of narcotics.

Further, although not controlling of our decision, we find support for our interpretation of § § 841(b) and 846 in the sentencing guidelines. Under the guidelines, a coconspirator is held accountable for the quantity of drugs reasonably foreseeable to him within the scope of his unlawful agreement.

We conclude that in order to apply § 841(b) properly, a district court must first apply the principles of Pinkerton as set forth in the relevant conduct section of the sentencing guidelines, U.S.S.G. § 1B1.3, to determine the quantity of narcotics reasonably foreseeable to each coconspirator within the scope of his agreement.

If that amount satisfies the quantity indicated in § 841(b), the statutory mandatory minimum sentencing provision would not apply. Here, the district court erred in failing to determine the quantity of narcotics reasonably foreseeable to two defendants within the scope of their agreements prior to imposing the mandatory minimum sentences. Thus, we vacate their sentences imposed under § 841(b). However, we affirm the alternative sentences under the guidelines.

U.S. v. Irvin (Wilkins) No. 91-5454, Aug. 23, 1993; USDC at Harrisonburg, Va. (Michael) Walter F. Green IV, Terry Armentraut, for appellants; Ray B. Fitzgerald Jr., AUSA, for appellee. VLW 093-2-251, 13 pp.