Appeals from the United States District Courts for the Northern District of Illinois, Eastern Division, and the Western District of Wisconsin. No. 88 CR 598 -- George M. Marovich, Judge. No. 88-CR-113-C-1 -- Barbara B. Crabb, Chief Judge.
Cummings, Cudahy, and Easterbrook, Circuit Judges.
EASTERBROOK, Circuit Judge
Two unrelated criminal cases present a common question concerning the application of the Sentencing Guidelines: whether drugs that were not part of the offense of which the defendant was convicted must be included in the amount used to compute the base offense score. The Ninth Circuit has held that only quantities entailed in counts of which the defendant has been convicted may be used. United States v. Restrepo, 883 F.2d 781 (9th Cir. 1989). Five other courts have held that all quantities that "were part of the same course of conduct or common scheme or plan as the offense of conviction" must be added together as a result of Guidelines § 1B1.3(a)(2). E.g., United States v. Williams, 880 F.2d 804 (4th Cir. 1989); United States v. Taplette, 872 F.2d 101 (5th Cir. 1989); United States v. Ykema, No. 88-2113 (6th Cir. 1989), slip op. 5; United States v. Allen, 886 F.2d 143,, (8th Cir. 1989); United States v. Scroggins, 880 F.2d 1204 (11th Cir. 1989). We agree with these decisions and disagree with the Ninth Circuit.
Customs officials intercepted two packages from Peru addressed to William White and found that each contained magazines hollowed out and filled with cocaine base, a substance that can be smoked or converted into cocaine hydrochloride, the powdery form in which cocaine usually is taken. They turned the packages over to the Drug Enforcement Administration, which removed 300 grams of the cocaine base and left two grams in one of the packages, adding sugar to make up bulk and a transmitter to signal the opening of the package. Maintaining watch after dropping one package in White's post office box, agents saw him pick it up and make a beeline for a storage locker that was later found to contain a substantial quantity of mannitol, a laxative often used to cut (dilute) cocaine and provide bulk. White then went about his business, leaving the package, unopened, in his car. Agents arrested him as he was on his way to play tennis early in the evening. The car contained not only the package and tennis gear but also a loaded semi-automatic pistol in the tray between the front seats.
An indictment charged White with conspiring to possess cocaine with intent to distribute, with possessing 157 grams of cocaine base (the amount originally in the delivered package) with intent to manufacture and distribute it, and with using a firearm in relation to a drug offense. After a bench trial, the district judge convicted White of the count charging possession with intent to manufacture and distribute but acquitted him of the counts charging conspiracy and possession of a gun in relation to a drug offense. The judge said that the prosecution had not demonstrated that White conspired with anyone in particular, and that White had not used the gun "to facilitate the commission of these offenses".
The base offense score under the Sentencing Guidelines depends on the quantity of drugs involved in the offense. Quantity could have been derived in three ways here: the 1.88 grams of cocaine base in the package placed in White's box, translating to a level of 18; the 157 grams that had been in the package when it arrived at the border, translating to a level of 34; and the 302 grams that had been in both packages, yielding the same level of 34 (everything from 150 to 499 grams of cocaine base is in that category, along with 15-49.9 kilograms of cocaine hydrochloride). White maintained that level 18 is proper while the prosecution argued for level 34.
The district judge found that the amount of cocaine White possessed with intent to distribute was 1.88 grams. White never got control of any other quantity and therefore could not have possessed it, even constructively. Although the prosecutor argued that the whole 302 grams should be included because the two packages were part of a single course of conduct, the judge disagreed, stating:
I, in being a rather jealous guardian of my function and role, asked the rhetorical question. Why did I make specific findings of fact if some bureaucratic computation is going to throw them out the window? And I asked [the probation officer] to recompute the offense level based upon 1.88 grams, the amount [White] was found to be in possession of, and without a gun, . . . because I found it very difficult to see that he should be punished for even more than he was charged with let alone about found guilty of. . . .
Without discussing the language of the Sentencing Guidelines, the judge then sentenced White to 33 months' imprisonment, the upper limit of the 27-33 month range prescribed for a base offense level of 18. The range for a base offense level of 34 is 151-188 months; if the level had been set at 36 because of the gun (as the prosecutor requested, see Guidelines § 2D1.1(b)(1)), the range would have been 188-235 months.
White's appeal challenges the conviction. The United States, appealing on the authority of 18 U.S.C. § 3742(b)(2), asks us to instruct the district judge to resentence White on the basis of an offense level of 34. Part II takes up the government's appeal. White submits that the evidence was insufficient to support the conviction. He didn't open the package and, he says, had no idea that cocaine base was hidden in a hollowed-out magazine to which he subscribed. The prosecution replies that producers do not send 300 grams of cocaine base -- which the Guidelines treat as equivalent to 30 kilograms of cocaine -- to randomly selected names on magazine subscription lists. White traveled to Peru frequently, the prosecution established, though he says the trips were innocent and concerned unspecified "mining interests". On receiving the package, White visited a storage locker containing 20 pounds of mannitol, used as a laxative or a cutting agent; White does not suffer constipation of that severity, leaving the sinister inference. Cocaine base is processed before consumption; this requires ether and hydrochloric acid. White and his brother had purchased these chemicals in quantity, under assumed names, a few years earlier. Witnesses reported smelling the fumes of these chemicals from what may have been a processing operation under White's control. Although this evidence affords only circumstantial proof that White knew the contents of the envelope from Peru, it is sufficient to support the inference the district judge drew.
If so, White contends, this shows only that the evidence concerning the purchases and use of ether and hydrochloric acid should not have been admitted in evidence. Such bad-act evidence may not be admitted to show character, Fed.R.Evid. 404(b), which is how the prosecution used it here, White believes. See United States v. Beasley, 809 F.2d 1273 (7th Cir. 1987). The district court believed, however, that the evidence had been used to show White's knowledge of the contents of the packages, a permissible use. Because the judge as trier of fact was in the ideal position to know the purpose for which the evidence was used, we are most reluctant to say that he abused his discretion in admitting it. Ether and hydrochloric acid are not contraband or even regulated; neither is having an open window through which a fan blows their fumes. Yet such deeds may reflect on a person's knowledge about the contents of a package that ...