the police observed prior to the defendant's arrest indicating that prospective purchasers were directed by the defendant's co-conspirators from the house to the park where they would then undertake to purchase drugs from the defendant.
However, it is the scope of the defendant's agreement with his co-conspirators that is dispositive of his responsibility for the drugs found in the upstairs closet. United States v. Edwards, 945 F.2d 1387, 1391-97 (7th Cir. 1991) (stressing that "the most relevant factor in determining reasonable foreseeability" is "the scope of the defendant's agreement with other co-conspirators"). Notwithstanding the Court's conclusion that there was a single conspiracy, the evidence does not preponderate in favor of a conclusion that the scope of the defendant's agreement extended to the distribution of the 381 grams.
The 381 grams, which were packaged differently than the other narcotics found in and around the house, were of a far lower purity (48%) than the other drugs (62%, 63%, and 67%, respectively). Moreover, the 381 grams were of a different composition than the other drugs in evidence; one of the Government's witnesses, a DEA chemist, testified at trial that the 381 grams contained bicarbonates not present in the other drugs.
The different composition and the lower purity of the 381 grams indicate that it was already prepared for distribution; had it been cut any further it would likely have been unmarketable. The inference is that the 381 grams are severable from the other drugs; it is possible that the distribution thereof was not an object of the conspiracy which the defendant had agreed to undertake. In any event, there is no countervailing evidence demonstrating that the distribution of the 381 grams was within the scope of the defendant's conspiratorial agreement and reasonably foreseeable to him.
Indeed, even if the defendant knew that his co-conspirators were dealing in much larger quantities, he is not accountable for those larger quantities unless his agreement was to assist in the distribution thereof. See U.S.S.G. § 1B1.3 n.2(c)(7). The record does not contain any evidence of such an agreement. Rather, the defendant appears to have been a small time, novice dealer who sold a small amount of drugs over a short period of time and there is little or no evidence to support the attribution to him of a tremendous cache of drugs, hidden from view, packaged differently and of a different composition and far lower purity than all of the drugs for which the defendant concedes responsibility. In sum, the Court concludes that the defendant agreed to distribute a quantity of narcotics that did not include the 381 grams located in the upstairs bedroom closet.
The relevant conduct taken into account in setting a base offense level for a defendant convicted of conspiracy includes only that which was within the scope of the defendant's agreement with his co-conspirators and reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake. Upon careful consideration of the parties' pleadings, the entire record herein, and the law applicable thereto, the Court concludes that the defendant's base offense level should be determined on the basis of the various amounts he sold, plus the amounts found on the side porch and in the furnace room. Totaling 16.939 grams, the specific amounts consist of the 9.92 grams the defendant admits to previously having sold, the .62 gram he sold to the undercover officers on September 4, 1990, the .31 gram he sold to an unidentified individual on September 4, 1990, the 2.716 grams seized on the side porch, plus the 3.372 grams seized inside the furnace room. U.S.S.G. § 2D1.1(c)(11) and (9), respectively (Eff. November 1, 1990). Accordingly, the defendant's base offense level is 26 and the Guideline range is 63 to 78 months. The Court shall enter an Order of even-date herewith consistent with this Opinion scheduling a further hearing to determine the appropriate sentence within the aforementioned range.
November 30, 1995
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE