Appeal from the United States District Court for the District of Montana. D.C. No. CR-91-22-H-CCL. Charles C. Lovell, District Judge, Presiding.
Before: William C. Canby, Jr., and Stephen Reinhardt, Circuit Judges, and A. Wallace Tashima, District Judge.*fn* Opinion by Judge Tashima.
Dean Kipp appeals his sentence after pleading guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Kipp contends the district court erred by: (1) including the quantity of drugs he possessed for personal use in the calculation of his base offense level; (2) awarding him two criminal history points under U.S.S.G. § 4A1.1(d); and (3) denying him a downward adjustment for a minor or minimal role in the offense pursuant to U.S.S.G. § 3B1.2. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We affirm in part, reverse in part, vacate and remand for resentencing.
Kipp was charged with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On May 10, 1992, Kipp pled guilty to possession with intent to distribute in exchange for dismissal of the conspiracy count.
The count to which Kipp pleaded guilty charged him with possession of approximately 117.25 grams of cocaine with intent to distribute. However, in the plea agreement, the parties expressly reserved "the right to argue the amount of cocaine for sentencing purposes."
At sentencing, Kipp contested the presentence report's recommendation that the entire 117.25 grams charged in the count of conviction be used to calculate his base offense level. Kipp argued that because he possessed most of the drugs for personal use and only possessed a small quantity for distribution, the base offense level should reflect only the amount possessed with the requisite intent, rather than the total amount. Kipp also objected to the presentence report's recommendation to add two criminal history points under U.S.S.G. § 4A1.1(d) for committing the offense while serving a suspended sentence. Kipp argued that the court was required to determine as a factual matter whether he had the intent to distribute the drugs he possessed during his suspended sentence. Finally, Kipp challenged the presentence report's recommended denial of a mitigating role reduction under U.S.S.G. § 3B1.2.
The district court refused to grant Kipp a downward adjustment in his offense level under § 3B1.2 for a minor or minimal role in the offense. The court next rejected his argument that he should not be assessed two criminal history points under U.S.S.G. § 4A1.1(d) because the government did not prove that he possessed cocaine with intent to distribute during his suspended sentence.
Lastly, the district court held an evidentiary hearing to determine the amount of drugs involved for the purpose of calculating Kipp's base offense level under U.S.S.G. § 2D1.1. Kipp admitted to possessing 80 to 90 grams of cocaine. However, he argued that he possessed all but five or six grams for his own personal use and that only the grams he possessed with intent to distribute were relevant for sentencing purposes. While the district court acknowledged Kipp's claim that he possessed most of the drugs for personal use rather than for distribution, the court noted that it "simply cannot see how those amounts are severable." Consequently, the court concluded that the entire 80 to 90 grams Kipp admittedly possessed should be included in calculating the base offense level.
A. Drug Quantity and Base Offense Level
Kipp argues that the district court erred by including the quantity of drugs he possessed merely for personal use in its calculation of his base offense level. The district court assigned Kipp a base offense level of 16, which corresponds to 50 to 100 grams of cocaine. U.S.S.G. § 2D1.1(c)(14). Kipp contends the appropriate base offense level was 12 - the base offense level for less than 25 grams of cocaine. U.S.S.G. § 2D1.1(c)(16).
Under U.S.S.G. § 2D1.l(c), the base offense level for a drug related offense depends entirely upon the quantity of drugs involved. United States v. Harrison-Philpot, 978 F.2d 1520, 1522 (9th Cir. 1992), cert. denied, 124 L. Ed. 2d 294, 113 S. Ct. 2392 (1993). The government bears the burden of establishing by a ...