UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

ROBERT JOHN JANSEN, JR.,
Appellant

v.

UNITED STATES OF AMERICA

No. 02-4215

January 22, 2004, Argued

May 21, 2004, Filed

PRIOR HISTORY: [*1] On Appeal from the United States District Court for the Middle District of Pennsylvania. Criminal Action No. 4:98-CR-240. (Honorable James L. McClure, Jr.) United States v. Jansen, 229 F. Supp. 2d 377, 2002 U.S. Dist. LEXIS 21104 (M.D. Pa., 2002)

DISPOSITION: Reversed and remanded.

COUNSEL: JAMES V. WADE, Federal Public Defender For the Middle District of Pennsylvania, DANIEL I. SIEGEL, Assistant Federal Public Defender, D. TONI BYRD (Argued), Assistant Federal Public Defender, Harrisburg, PA, Attorneys for Appellant, Robert John Jansen, Jr.

THOMAS A. MARINO, United States Attorney, THEODORE B. SMITH, III (Argued), Assistant United States Attorney, Harrisburg, PA, Attorneys for Appellee, United States of America.

JUDGES: Before: ALITO and CHERTOFF, Circuit Judges, and DEBEVOISE *, Senior District Court Judge. ALITO, Circuit Judge, concurring.

* Honorable Dickinson R. Debevoise, United States Senior District Judge for the District of New Jersey, sitting by designation.

OPINION:

Debevoise, United States Senior District Judge

Defendant, Robert John Jansen, Jr., filed a petition pursuant to 28 U.S.C. § 2255, asserting that his trial counsel was ineffective for failing to argue at his sentencing for drug possession with intent to distribute [*2] that the amount of drugs in his possession intended for personal use should not have been included in the base offense level calculation. The District Court held that, assuming trial counsel was ineffective in this regard, defendant was not prejudiced for the reason that there was a strong connection between the drugs defendant intended to distribute and any drugs he held for personal use, and therefore all amounts of drugs he possessed should enter into the base offense level computation. HN1We hold, in agreement with the opinions of the other Courts of Appeals that have ruled upon this issue, that when a conviction is for simple possession with intent to distribute, the amount of drugs a defendant possessed for personal use must be determined and may not be included in the base offense level computation. Counsel was ineffective for failing to raise this issue at the time of sentencing, and this failure may have resulted in prejudice to defendant. The judgment of the District Court will be reversed and the case will be remanded for a determination of the amount of drugs, if any, which defendant possessed for personal use and, if appropriate, recomputation of defendant's base offense [*3] level in accordance with this opinion.

I. Background

After midnight on June 30, 1998 Pennsylvania State troopers stopped a light blue Chevrolet Spectrum with two male occupants and a silver Toyota Camry which appeared to be accompanying the Spectrum and which also had two occupants. The troopers had previously received information that the Spectrum would be transporting illegal drugs from the New York City area back to Pennsylvania. Defendant was the passenger in the Spectrum. Its driver was Andrew DeHart. The driver of the Camry was a Hispanic male who went by the nickname of "Louie." The passenger was another Hispanic male.

The troopers retrieved a plastic bag from defendant's groin area. Subsequent laboratory analysis disclosed that within the bag were two smaller bags, one containing 34.2 grams of cocaine and the other containing 16.3 grams of crack cocaine. Defendant also had on his person $ 770 in currency and a pager. Shortly after the stop a drug detection canine was brought to the scene, and the driver of the Spectrum, DeHart, consented to a search. There was discovered on the rear floor a black videocassette recorder ("VCR") which contained a number of plastic [*4] bags. Analysis later disclosed that these bags contained a total of 448 grams of cocaine.

Neither a consent search nor a dog sniff of the Camry disclosed any drugs, and consequently the troopers permitted the two Hispanic males to proceed on their way.

Shortly after defendant had been searched and the drugs found on his person he volunteered that he was going to have to find out "who told the police on him," as there were only two people who knew "he made this run." (II App. 157). He added that only one of the two knew what kind of vehicle he drove, so he had it "pretty much narrowed down." (II App. 164). He also stated that he could offer information that would yield the troopers three to four times the quantity of drugs the stop would yield. (Id.)

The troopers advised defendant of his constitutional rights approximately one-half hour after the stop. There was an interval of time during which the two cars were searched and then defendant was again advised of his constitutional rights. (II App. 177). When asked what was in it for him the troopers informed defendant only that his cooperation would be made known to his sentencing judge. The defendant then stated that the cocaine [*5] found in his pants was "all for him,. . . that he was not going to deliver that to anybody in the area, [and] that it was strictly his." (II App. 178)

Defendant also told the trooper who was questioning him that he had just gone to New York City to meet an individual named "Louie," that Louie had given him an ounce of cocaine, that he had also purchased the crack cocaine from Louie, and that these quantities of cocaine were the drugs seized from his pants (II App. 178-79, 233-34). Further, according to defendant, Louie, who was the person driving the Camry, had also delivered to him the VCR containing cocaine which he was to deliver to a man named Richy Willow in Middleburg, Pennsylvania, early that morning (II App. 179).

The usual procedure, according to defendant, was for Willow to contact Louie in New York by telephone and place a cocaine order, after which Louie would communicate with defendant to inform him that there was a package to pick up in New York (II App. 179). Defendant would then drive to New York, take delivery of a VCR containing cocaine and drive back to Pennsylvania in order to deliver the VCR to Willow. Louie would follow defendant from New York to Willow's [*6] residence and receive payment from Willow. Before leaving for Pennsylvania Louie would deliver to defendant a quantity of cocaine as payment for his transportation services. (II App. 179-80).

On October 13, 1998 a grand jury returned a one count indictment charging defendant with distribution and possession with intent to distribute cocaine and cocaine base and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He proceeded to trial. Testifying in his own defense, defendant recanted the incriminating statements he had made on the night of his arrest (II App. 219-36; III App. 277-87). At trial he testified that the driver, DeHart, had called him and asked him to ride along with DeHart on a trip to New York, because DeHart did not like traveling alone (II App. 221). He went along because he needed cocaine to satisfy his own habit (Id.) Defendant asserted that he knew DeHart "was up to something" but he did not know what it was. (Id.). In a somewhat contradictory vein he testified that he knew the VCR contained cocaine, although he did not know how much, and that it would be delivered to Willow after being [*7] transferred to the vehicle that followed them from New York (II App. 226).

Although defendant disavowed most of the incriminating statements he had made on the night of his arrest, he reiterated his initial contention that the cocaine and crack cocaine seized from his pants were for his own personal use. (II App. 228). He went to New York to obtain cocaine because it was cheaper there. He admitted he introduced people to his sources and facilitated their purchases in order to obtain a cheaper price for his own drugs. (II App. 228-30). He was unemployed on June 30, 1998, but testified that he had paid $ 1,000 for the nearly two ounces of cocaine and crack cocaine seized from his pants. He explained that the $ 770 seized from him at the time of the stop was the proceeds of the sale of two cars that belonged to his father. (II App. 238, 235).

On cross-examination defendant admitted that on occasion he would sell some of what he brought back for himself to finance his next purchase, cocaine being much cheaper in New York. (II App. 283-84). Specifically, defendant admitted that he had sold one-eighth ounce quantities or "eight balls," of cocaine in Milton for approximately $ 150 and that [*8] he sold an "eight ball" of cocaine to an undercover state trooper 30 days before his arrest on May 29, 1998. (II App. 285). Defendant set his price so as to be able to use the proceeds to purchase more cocaine. (II App. 287).

During his principal and rebuttal closing arguments the Assistant United States Attorney argued strenuously that both the cocaine contained in the VCR and the cocaine and crack seized from defendant's pants were possessed with intent to distribute. Citing the fact that cocaine was much cheaper in New York the government asked rhetorically ". . . why wouldn't you get two ounces, bring it back when you can sell one of those two and make enough money to buy another one or two ounces and use the other ounce?" (II App. 345).
. . . If you bring back an ounce of cocaine and you break it down to eight balls and sell it at $ 150 each, you can see that you can use half and sell half [,] an eight ball [ ] being an eighth of an ounce. You can sell it to make enough money to buy another ounce on your own.


(IV App. 346)

The jury found defendant guilty. It did not, and was not required to, make a special finding as to whether the drugs found in defendant's [*9] pants were possessed with intent to distribute.

Using the 1998 edition of the United States Sentencing Guidelines Manual the probation officers who prepared defendant's presentence report ("PSR") calculated the drug quantity under the drug trafficking guideline at U.S.S.G. § 2D1.1. The calculation included i) the 448 grams of powdered cocaine found in the VCR at the time of arrest, ii) 50 ounces of cocaine that defendant admitted he possessed for distribution on previous trips, iii) the 16.3 grams of crack cocaine found on defendant's person that defendant told the trooper were for personal use, and iv) the 34.2 grams of powdered cocaine found on defendant's person that defendant told the troopers were for personal use. These quantities, when converted to marijuana equivalents, yielded a total weight of 705.94 kilograms of marijuana. (PSR, par. 4-12).

Pursuant to U.S.S.G. § 2D1.1(c)(5) this amount fell within the 700 to 1,000 kilogram range, resulting in an offense level of 30. An offense level of 30, combined with a criminal history category of III, produced a sentencing range of 121 to 151 months.

At sentencing defendant's counsel raised an objection to the computation of the [*10] offense level, arguing that the uncharged "historical" distributions attributed to defendant should not be included. The court rejected this argument and sentenced defendant to 121 months imprisonment.

At the time of sentencing the Courts of Appeals for the Seventh and Ninth Circuits had held that drugs possessed for personal use may not be included in calculating a Guideline sentence for possession with intent to distribute under U.S.S.G. § 2D1.1. United States v. Wyss, 147 F.3d 631 (7th Cir. 1998); United States v. Kipp, 10 F.3d 1463 (9th Cir. 1993). Defense counsel did not argue that the drugs found in defendant's pants were for personal use and should not be counted in computing the offense level. Had he successfully argued that point, the drugs in the VCR and the drugs previously distributed would have produced a total marijuana equivalent of 373.1 kilograms. Marijuana in the range of 100 to 400 kilograms produced an offense level of 26. In defendant's circumstances his sentencing range would have been 78 to 97 months. Even if only a portion of the drugs found in defendant's pants were found to have been for personal use and were excluded from [*11] the base offense level computation, defendant would have fallen into a less than 700 to 1,000 kilogram range, and his sentencing range would have been less than 121 to 151 months. In any event, this contention was not raised in the District Court.

Defendant appealed his conviction. The appeal focused on the suppression of evidence obtained during his arrest. The Court of Appeals affirmed the judgment of the District Court.

On October 30, 2001 defendant filed an amended petition for post conviction relief pursuant to 28 U.S.C. § 2255. He contended, among other things, that his trial counsel had been ineffective in failing to object to consideration of drug quantities which were for personal use. In two comprehensive opinions dated August 22, 2002 and November 1, 2002, respectively, the District Court addressed the six claims that defendant advanced. The Court ordered that the petition be denied in its entirety and that there was no basis for issuance of a certificate of appealability.

Relevant to the instant appeal is the portion of the District Court opinion that dealt with defendant's contention that his trial counsel was ineffective for failing to argue [*12] at the time of sentencing that the drugs found in his pants were for personal use and should not have been included in the offense level computation. The Court noted that as of the date of its opinion the Court of Appeals for the Second and Eighth Circuits had joined those of the Seventh and Ninth Circuits in holding that when calculating the base offense level for a conviction of possession with intent to distribute, a District Court must exclude those drug quantities reserved for personal use. United States v. Williams, 247 F.3d 353, 355 (2nd Cir. 2001); United States v. Fraser, 243 F.3d 473, 475 (8th cir. 2001) n1. The opinion also referred to the one Court of Appeals opinion which holds that personal use quantities may be included in the calculation of the base offense level. United States v. Antonietti, 86 F.3d 206, 210 (11th Cir. 1996).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 After the District Court issued its opinion the Court of Appeals for the Sixth Circuit joined the courts which had held that in a possession with intent to distribute case possession of drugs for personal use could not be considered relevant conduct for sentencing purposes. United States v. Gill, 348 F.3d 147 (6th Cir. 2003).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*13]

The District Court disagreed with the premise it attributed to the majority of the Court of Appeals that "the act of setting aside narcotics for personal consumption is . . . not a part of a scheme or plan to distribute these drugs. Williams, 247 F.3d at 358." (I App. 54). Instead the District Court found persuasive the reasoning of the dissent in Fraser. The dissent contended that when a defendant's attempted purchase of the drugs for personal use was "inextricably intertwined" with her attempted purchase for distribution, the entire quantity should be countable for sentencing purposes. Fraser, 243 F.2d at 477. Applying the reasoning of the Fraser dissent, the District Court stated:
We believe that the reasoning of the Fraser dissent is applicable to Jansen's case. Jansen's possession of the crack cocaine was part and parcel of his attempt to distribute the powder cocaine in the VCR. The crack was obtained as a result of Jansen's trip to New York. Jansen received the crack from the person who gave him the VCR. The connection between the drugs Jansen intended to distribute (the powder cocaine in the VCR) and the drugs Jansen allegedly [*14] intended for his own use (the crack on his person) was strong enough that his use of both drugs "occurred during the commission of the offense of conviction." Therefore, all amounts of drugs possessed by Jansen were properly considered to be relevant conduct.


(I App. 56)

Recognizing that its decision conflicted with the holdings of four courts of appeals, the Dist

United States Court of Appeals
For the Second Circuit

UNITED STATES of America,
Appellee,

v.

Kevin WILLIAMS, aka “Supreme,” aka “Ron La Roche”,
Defendant-Appellant.

Docket No. 00-1308.

Argued May 29, 2001.

Decided June 14, 2001.

Defendant was convicted in the United States District Court for the Southern District of New York, Robert J. Ward, J., of conspiracy to commit bank fraud, and he appealed two-level sentence enhancement for recklessly endangering others during flight. The Court of Appeals held that: (1) finding that defendant was “in flight” was supported by evidence, and (2) finding that defendant had “recklessly created a substantial risk of death or serious bodily injury to another person” was supported by evidence.

Affirmed.



*44 Valerie S. Amsterdam, James M. Branden, Amsterdam & Branden, New York, NY, for appellant.

Robert H. Hotz, Jr., Christine H. Chung, Assistant United States Attorney, for Mary Jo White, United States Attorney, S.D.N.Y., for appellee.

*45 Before CALABRESI and KATZMANN, Circuit Judges, and KAPLAN, District Judge.FN*


FN* The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New York, sitting by designation.

PER CURIAM:

After a jury trial, Kevin Williams was convicted of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371. He appeals only his sentence, contending that the district court (Ward, J.) erred in imposing a two-level sentence enhancement, pursuant to U.S.S.G. § 3C1.2, for recklessly endangering others during his flight from the North Bergen, New Jersey Police Department. For the reasons that follow, we affirm the decision of the district court.

BACKGROUND

On September 12, 1996, members of the North Bergen Police Department were waiting for Williams outside the house of a cooperating co-conspirator. Seventy-eighth Street, where the house was located, runs one-way from the top of a hill to the bottom. The house was located halfway down the street. When Williams pulled up to the house in a white Jeep Grand Cherokee, two officers, who had been waiting in an unmarked car on an adjacent street, drove the wrong way up 78th Street and converged with Williams with their lights and sirens on. The police car stopped, and one of the officers got out and, at the passenger window of the Jeep, displayed his shield. In the meantime, Detective Mary Ann Clark had driven down the hill and stopped about a car's length behind the Jeep. Williams then put the Jeep into reverse, jumped it over the curb and onto the sidewalk-nearly hitting Clark's vehicle-and sped the wrong way up the one-way street. He was driving so quickly that Clark, in an older model police vehicle, did not attempt to pursue him.

Shortly thereafter, Captain Robert Carmeci, also of the North Bergen Police, was driving in an unmarked car in the vicinity of Routes 1 and 9 in North Bergen. He received a radio transmission that a white four-door Jeep Cherokee was wanted, and shortly thereafter observed a car fitting that description speeding northbound on Routes 1 and 9 toward the George Washington Bridge. Carmeci followed Williams' Jeep as it turned onto Route 46, and he activated his lights and sirens. He pursued Williams for approximately two miles at speeds in excess of 70 miles per hour in this 50-mile-per hour zone. Williams drove erratically, changing lanes to the left and the right. Although Carmeci closed to within 100 feet of Williams, Williams did not pull over. Carmeci apprehended and arrested Williams when Williams stopped at the toll line.

In light of this conduct, the Pre-sentence Investigation Report recommended, inter alia, a two-level enhancement pursuant to U.S.S.G. § 3C1.2 for recklessly endangering others during flight. Williams objected to this enhancement, and a Fatico hearing was held on this, and on other sentencing issues not before us. During that hearing, the district court stated, “Speeds were excessive. The driving was erratic at times.” It also stated,

The speed limit, if I recall the testimony of Carme[si], was that on Route 46 the speed limit is 50 miles an hour and the defendant's vehicle speeded up to 70 miles an hour.... He was traveling at a rate of some 20 miles an hour above the speed limit and, as I recall, was moving from lane to lane. It wasn't a straight chase, as I remember. There was some *46 traffic which, of course also could have resulted in an unfortunate accident. Forgetting even the detective that was left at the house, there were other vehicles on the road, and here's a fellow speeding along at an excessive rate, 70 miles an hour and swerving from side to side.... He turned and put his foot, the pedal to the metal-.

The court also quoted Carmeci's trial testimony: FN1 “ ‘As [the Jeep] entered Route 46 at the on-ramp, it started to go continually faster, at which time I activated my lights and siren at that point.... We reached speeds of 70 miles per hour plus on Route 46, at which time we were weaving in and out of traffic.”

FN1. The testimony mentioned by the district court was given at defendant's first trial, which ended in a mistrial for reasons unrelated to the issues before us.


On the basis of this evidence, the district court concluded that the § 3C1.2 enhancement was warranted. Williams now appeals that determination.

DISCUSSION

The sentencing guidelines provide for a two-level enhancement “[i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. “ ‘Reckless' refers to a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.” § 2A1.4, Applic. Note 2.

Where Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) is not implicated, as it is not here, the district court is empowered to find disputed facts relevant to sentencing and may do so by a preponderance of the evidence. See United States v. White, 240 F.3d 127, 136 (2d Cir.2001). Moreover, “the sentencing court remains entitled to rely on any type of information known to it.” United States v. Concepcion, 983 F.2d 369, 388 (2d Cir.1992).

On review, we must “give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.” 18 U.S.C. § 3742(e); see United States v. Berndt, 127 F.3d 251, 259 (2d Cir.1997). A clear error occurs only when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). And “[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504.

Williams presents two arguments in support of his contention that the district court clearly erred in imposing the § 3C1.2 enhancement. First, he claims that he was not actually “in flight” from the police when he was driving on Routes 1, 9, and 46. Thinking that he had lost the police on 78th Street, he alleges that he was not aware of Carmeci's pursuit. Williams states that since Carmeci was never closer than 100 feet to Williams, and Williams had his windows closed, he neither saw Carmeci's flashing lights nor heard his sirens. In addition, because Williams could have gotten off Route 46 at various exits prior to the toll plaza, he suggests that had he known that he was *47 being pursued he would have avoided being stopped in the toll lines.

The district court could, and did, rely on the following facts: (1) Williams quickly left 78th Street after the officers identified themselves; (2) when Carmeci activated his lights and sirens, (3) cars between Carmeci and Williams got out of the way; (4) Carmeci closed to within approximately 100 feet of Williams; (5) Williams was driving more than 20 miles over the speed limit weaving in and out of traffic; (6) the exits prior to the toll plaza could not be negotiated by a Jeep moving at 70 mile per hour speeds, either because they led to local streets with low speed limits or because the exit ramps were tightly curved. (The district court mentioned this last fact specifically during the Fatico hearing.) Under the circumstances, we hold that the district court could find that Williams was, in fact, fleeing the police. And Williams' contrary interpretation of the evidence does not render the district court's conclusion that Williams was “in flight” clearly erroneous.

Williams' second contention on appeal is that his conduct did not recklessly endanger anyone. He challenges the recklessness of his behavior both on 78th Street and on Routes 1, 9, and 46. As to 78th Street, Williams claims that he could not have endangered Detective Clark because he began reversing from a parked position. In addition, he contends that because he drove the wrong way on 78th Street for less than a block during the middle of the day, his exit was not reckless either. As to Williams' conduct during Carmeci's later pursuit, Williams claims that driving 50 to 55 miles per hour in a 40-mile-per-hour zone and 70 miles per hour in a 50-mile-per-hour zone during light traffic “is not highly unusual, and, even in conjunction with lane changes, caused no risk to the safety of others.”

This court has yet to decide what conduct during an automobile chase rises to the level of reckless endangerment anticipated by § 3C1.2. Several other circuits have affirmed district courts' imposition of the enhancement for conduct similar to that of Williams. Thus, in United States v. Chandler, 12 F.3d 1427, 1433 (7th Cir.1994), the Seventh Circuit affirmed such an enhancement on the basis of a chase through “a series of residential subdivisions ... at speeds that ranged from thirty-five to fifty miles per hour while swerving from lane to lane .” Although no one was injured, the court found that the chase “might very well have resulted in injury to unsuspecting residents ... [and] to the police officers who were pursuing Chandler.” Id. at 1433-34. Similarly, in United States v. Valdez, 146 F.3d 547, 554 (8th Cir.1998), the Eight Circuit rejected defendants' claim that because their flight occurred in daylight, on country roads in a rural area, and no other vehicles or pedestrians were encountered, it fell short of recklessness. The court did “not interpret § 3C1.2 to require that a high speed chase occur at night, in an urban area, or that any other vehicles actually ended up in harm's way.” Id.; see also United States v. Reed, 80 F.3d 1419, 1420, 1424 (9th Cir.1996) (affirming enhancement where the defendant drove a van at speeds approaching 75 miles per hour and crashed into cars at the top of a hill).

The circumstances of Williams' flight, in their totality, indicate that the district court did not clearly err in finding that Williams “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” § 3C1.2. From the moment Williams was confronted by the police on 78th Street he acted with gross disregard for the consequences of his dangerous driving-from reversing*48 and almost hitting Detective Clark's vehicle, to speeding the wrong way on a one-way street, to driving very significantly over the speed limit while weaving from lane to lane. Because we find that, in their entirety, the circumstances of Williams' flight involved reckless endangerment, we need express no view as to whether the sole fact that Williams drove above the speed limit in light traffic would be sufficient, and conclude that the district court did not err in imposing a sentence enhancement pursuant to § 3C1.2. The sentence of the district court is therefore AFFIRMED.