Defendant Not Responsible Under § 2D1.1 For Amounts of Drugs That He Didn't Intend OR Wasn't Capable of Delivering, But It's His Burden to Prove That

United States v. Davis, No. 05-10754 (5th Cir. Jan. 31, 2007) (Barksdale, Benavides, Owen)

Pay attention to the "and's" and "or's" in statutory language. Sometimes it makes all the difference in the world, as this case illustrates.

The relevant language here comes from application note 12 to guideline §2D1.1, which provides in pertinent part:

In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense. . . . If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.

Slip op. at 5-6 (emphasis in opinion).

Davis pled guilty to one count of distributing crack. The PSR held him responsible for a total of 156.96 grams. Three ounces (about 85 grams) of that quantity consisted of a non-controlled white substance that the DEA seized in a sting operation. Davis agreed to sell that three ounces to an undercover informant, but the DEA intercepted the package before it was actually delivered. The PSR recommended that the three ounces be included in the drug quantity for offense level purposes because Davis intended to "rip off" the informant and, based on past conduct, he was capable of producing three ounces of crack.

Davis objected to the PSR's recommendation, arguing that he never intended to deliver three ounces of crack to the informant. The district court overruled the objection on the ground that it was Davis's burden to show both that he did not intend to deliver the agreed upon quantity and that he was incapable of doing so. The district court determined the applicable guideline range to be 210 to 262 months (33, III), but departed/varied to a sentence of 293 months. Davis appealed the offense level calculation.

The court resolved two issues with respect to application note 12. First, it held under that the plain language of note 12, proof of lack of intent and lack of capability is not required. The former version of note 12 was phrased conjunctively and required proof of both, but since 1995 the note has been phrased disjunctively. So proof of either lack of intent or capability will suffice. Second, the court held that the note's use of the phrase "the defendant establishes" places the burden of production and persuasion on the defendant on this issue. In so doing, the court took the side of the majority of the circuits to have addressed the question. (According to the opinion, one circuit has held that a defendant only bears a burden of production with respect to intent or capability.)

Put together, that means that the district court erred by including the three ounces in the offense level calculation. The PSR's conclusion that Davis intended to "rip off" the informant, coupled with the district court's adoption of the PSR's findings, sufficed to carry Davis's burden on the issue: "This undisputed finding of fact establishes as a matter of law that Davis did not intend to provide the agreed amount of crack cocaine." Slip op. at 9.

The court went on to vacate Davis's sentence and remand for resentencing because it couldn't determine whether the guideline error affected the district court's choice of sentence (due party to the fact that the district court wasn't clear about whether it was departing or varying from the applicable guideline range).