Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-89-272-Z. Thomas S. Zilly, District Judge, Presiding. Original Opinion Reported at,
Before: Procter Hug, Jr., John T. Noonan, Jr. and David R. Thompson, Circuit Judges. Opinion by Judge Noonan.
AMENDED OPINION AND ORDER
A large number of issues in this and related cases have been disposed of by memorandum Disposition and by a separate opinion filed herewith. The present opinion is addressed to a single point, raised by Jordan Quintal and Robert M. Petty. It is the quantity of drugs to be attributed to a conspirator in a drug conspiracy.
We remand to the district court for resentencing of these defendants.
The evidence established only that Quintal was involved in a single sale of three kilograms of cocaine to Donald Kessack. The sale took place in July 1989, three months before the five-year conspiracy was broken up by the government. In contrast, the evidence indicated that Robert Petty was a founding member of the conspiracy; that he bought and resold to Kessack large amounts of cocaine over the five year period; that he organized the shipment of the drugs; that he supervised couriers; that he handled their payments; and that he took large profits.
On July 27, 1990, the district court sentenced Quintal on the basis that, as to him, the conspiracy involved the distribution of 15 to 49 kilograms of cocaine. Petty was sentenced on the total quantity of drugs distributed by the conspiracy over five years.
Quintal and Petty challenge the quantities of drugs on which their sentences are based. Quintal contends that he should have only been sentenced on the basis of drugs distributed in the last three months of the conspiracy. Petty contends that he should not have been sentenced on the basis of kilograms of cocaine that Kessack obtained from John Brownwood, because Brownwood was an independent supplier of Kessack and a direct competitor of Petty.
Our starting point in the Sentencing Guidelines must be Part D, "Offenses Involving Drugs." Under this heading, § 2D1.1, "Unlawful Manufacturing, Importing, Exporting, or Trafficking (including Possession with Intent to Commit These Offenses)," provides a scale of penalties in terms of the particular drug distributed and the quantity distributed. § 2D1.4, "Attempts and Conspiracies," deals with ...