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UNITED STATES v. GADSON

August 31, 1993

UNITED STATES OF AMERICA
v.
EUGENE EDWARD GADSON



The opinion of the court was delivered by: CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 The Defendant in the above-captioned case pled guilty before this Court to one count of unlawful distribution of 5 or more grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii). *fn1" On July 15, 1993, the Defendant was sentenced on that one count to 73 months of imprisonment, four years of supervised release and a $ 50 special assessment. This Memorandum Opinion sets forth the Court's reason for the particular sentence imposed in this case.

 I. BACKGROUND

 The Defendant in this case was charged with, inter alia, four counts of distribution of cocaine base. The Defendant pled guilty to count 28, which charged the Defendant with distribution of cocaine base on January 13, 1993. At the sentencing, the Government dismissed the remaining counts in the Indictment against the Defendant, including three other counts alleging distribution of cocaine base on January 8, 11, and 15, 1993.

 Sentencing in this case is governed by the Sentencing Reform Act of 1984 and the United States Sentencing Commission Guidelines. The Commission Sentencing Guidelines provide a comprehensive system for determining the proper sentencing range in a federal criminal case, by determining each defendant's Criminal History Category and Total Offense Level. *fn2" All parties agreed in this case that Defendant's Criminal History Category in this case was II. However, the parties disagreed as to the appropriate Total Offense Level was in this case.

 The Government contended that the Defendant's Base Offense Level was 32 when considering the total amount of drugs allegedly involved in the four distributions contained in the Indictment as "relevant conduct" as set forth in Chapter I of the Guidelines. In addition, the Government contended that there should be a two level increase in the Offense Level in this case because the Defendant was allegedly involved in a transaction where guns were exchanged for drugs. Therefore, in the Government's view, with a three level downward adjustment under the Guidelines for Acceptance of Responsibility, the Defendant's Total Offense Level was 31 and the Guideline range for sentencing was 121 to 151 months. *fn3"

 II. FOR PURPOSES OF SENTENCING, THE COURT DID NOT CONSIDER OTHER ALLEGED DRUG TRANSACTIONS, OTHER THAN THOSE DRUGS FOR WHICH THE DEFENDANT ADMITTED RESPONSIBILITY, BECAUSE THE GOVERNMENT DID NOT LINK THE DEFENDANT TO THESE DRUGS BY A PREPONDERANCE OF THE EVIDENCE.

 The Government argued that, for purposes of sentencing under relevant conduct, the Defendant should be held accountable for his alleged involvement in four separate drug transactions on: January 8, 1993; January 11, 1993; January 13, 1993; and January 15, 1993. *fn4" More specifically, the Government contended that Offense Level of 32 was proper because the amount of drugs involved with these four transactions totaled 103.34 grams of cocaine base. *fn5"

 The Court did not agree and only held this Defendant accountable for the quantity of drugs related to the January 13, 1993 offense, namely 34.05 grams, for which the Defendant pled guilty. The Court, therefore, only included the amount of drugs for which the Defendant admitted his responsibility and guilt.

 Under the Sentencing Guidelines, a court may consider relevant conduct for purposes of sentencing, including all acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction." Sentencing Guidelines 1B1.3(a)(2). Therefore, the weight of drugs in conduct for which the Defendant did not admit personal responsibility may be used in some cases for purposes of sentencing. United States v. Boney, 298 U.S. App. D.C. 149, 977 F.2d 624, 644 (D.C. Cir. 1992) (citing United States v. Salmon, 292 U.S. App. D.C. 184, 948 F.2d 776 (D.C. Cir. 1991). However, when the Government attempts to use relevant conduct for purposes of enhancing a criminal defendant's sentence, due process requires that the Government prove the relevant conduct by a preponderance of the evidence. United States v. Burke, 281 U.S. App. D.C. 165, 888 F.2d 862, 869 (D.C. Cir. 1989); see United States v. Boney, 298 U.S. App. D.C. 149, 977 F.2d 624, 644 (D.C. Cir. 1992).

 In this case, the Court found that the Government had not proved, by a preponderance of the evidence, that the Defendant was involved with the drug distributions alleged in the three dismissed counts. The Government did not present any evidence, or even make a proffer of its evidence, establishing that the Defendant was responsible for the three other alleged drug distributions of January 8, 11 and 15, 1993.

 The only reference before the Court as to these three alleged drug distributions was contained in the Presentence Investigation Report ("PSI"), which was prepared by the United States Probation Office. However, the Court concluded that the information contained in the PSI in this case was not sufficient to satisfy the Government's burden of proof. The Court is not bound by the PSI where the information contained therein does not have "sufficient indicia of reliability to support its probable accuracy." Sentencing Guidelines § 6A1.3(a); see United States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992); United States v. Wise, 990 F.2d 1545, 1549-50 (10th Cir. 1992). The PSI here set forth information about the three other alleged drug distributions in this case in only the most general terms by merely setting forth the dates and amounts of the alleged drug transactions. It did not contain any specifics as to the underlying facts or the Defendant's role regarding these three alleged ...


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