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November 30, 1995


The opinion of the court was delivered by: RICHEY


 The Court must determine the amount of drugs properly attributable to the defendant as relevant conduct for the purpose of calculating the base offense level for his sentence. Upon careful consideration of the parties' pleadings, the testimony taken at the November 3, 1995 hearing, the arguments at the, November 27, 1995 hearing, the entire record herein, and the law applicable thereto, the Court concludes that 16.939 grams of cocaine base are attributable to the defendant by virtue of his membership and participation in the conspiracy of which he was convicted, warranting a base offense level of 26.


 On January 28, 1991, the defendant was convicted by a jury of one count of conspiracy to distribute and to possess with intent to distribute cocaine base, as well as two counts of distributing cocaine base. Four codefendants in the case were convicted of that same conspiracy; in addition, they were convicted of possession with intent to distribute cocaine base -- a crime for which the defendant was not charged. The defendant's convictions were affirmed by the Court of Appeals. See United States v. Thorne, 302 U.S. App. D.C. 302, 997 F.2d 1504, 1513 (D.C. Cir. 1993).

 The circumstances of the defendant's arrest, conviction, and sentencing are as follows: On September 4, 1990, at about 5:00 p.m., Officer Philip Burton of the District of Columbia Metropolitan Police Department established a surveillance post in an unmarked van parked across the street from 3472 14th Street, N.W.. 997 F.2d at 1506. During the course of the next two hours, Burton observed a good deal of activity around the house. Id. A number of people congregated on the front porch and, at about 5:30 p.m., Burton witnessed three apparent drug sales by one of the people who had been on the porch; the sales took place in a grassy park area approximately a block away from the house. Id.

 Roughly fifteen minutes after the transactions, Burton observed co-defendant Antonio Pender, who was on the porch, hand an individual a gym bag. Id. Some thirty minutes later, Burton observed defendant Haynes on the porch receiving money from Royce Thomas. Id. Haynes and Thomas then walked along 14th Street and were joined by a third individual. Id. The, third individual entered the park with Thomas whereupon he gave money to Thomas. Id. The two rejoined, Haynes and the three then went around to the south side of the house out of Burton's view. Id.

 Approximately fifteen minutes later, Haynes, then on the east side of 14th Street, received money from another individual in exchange for a small plastic bag. Id. at 1506-07. After placing some other small bags in a container, and about twenty minutes later, Haynes made two drug sales to Officers Robert Arrington, Jr. and Tawana May consisting of .282 grams of 67% pure cocaine base and .339 grams of 62% pure cocaine base, respectively; Burton also observed these transactions. Id. at 1507 & n.1.

 During the search of the house, the police found drugs in three different locations: 381 grams of 48% pure crack in a brown paper bag protruding from under a pile of clothes on the top shelf of one of the two closets in one of the second-floor bedrooms, 3.272 grams of 66 % pure crack behind the kitchen dryer in the "furnace room" and 2.716 grams of 62% pure crack in a box on the side porch of the house. Id. In the bedroom closet containing the drugs, the police also found an ammunition clip with five live rounds of and a brown paper bag with a triple-beam scale. Id. In the other closet, they located a shoe box with a brick of non-narcotic white substance while underneath one of the beds was a BB gun and a bag filled with ammunition. Id.

 A dresser in the bedroom contained several documents, including many with Ian Thorne's name on them and addressed to him at the house, a sales receipt indicating that Pender had made a down payment on a sports car, at least two documents with Boyce's name on them, and a book with Vincent Thorne's name in it. Id. The dresser also contained two ledgers -- an address book and a note pad -- each listing Pender's nickname ("Twin") and Haynes's first name ("Raymond"). The address book listed the names, in addition to Boyce's first name, next to numbers that appeared to represent amounts of money; the note pad listed the names next to what appeared to be telephone and beeper numbers. *fn1" Id.

 Upon questioning by the police, Ian and Vincent Thorne and Boyce indicated that they lived at the house. Id. The Thornes' father testified at trial that Ian shared the upstairs bedroom with Mark Thorne (a third son), Vincent, Keiron, and Boyce. Id. at n.4. The father also testified that Haynes lived in the basement apartment along with his family but also frequently spent time in the Thornes' house above the basement, the basement apartment was not internally connected to the Thornes' quarters upstairs. Id. At the November 3, 1995 hearing, Haynes testified that he regularly played Nintendo computer games with the co-defendants in the upstairs bedroom but that he never saw any of the contraband found therein.

 Sentencing occurred in May 1991. The defendant's Presentence Investigation Report ("PSI") set forth the following findings:

[Par. 12] The 7 ziplock bags found in the furnace room next to the kitchen contained 3.372 grams of cocaine base. The 9 plastic baggies found in the defendant's bedroom contained approximately 381.1 grams of cocaine base. The 7 ziplock bags found in a box on the side porch contained approximately 2.716 grams of cocaine base. As stated previously, Raymond Haynes sold 0.339 grams of cocaine base to one undercover officer and 0.282 grams to another undercover officer. The total amount of drugs involved in this offense was 384.5 grams of cocaine base. This amount of cocaine has an approximate street value of $ 40,000.
[Par. 20] Base Offense Level: The Guideline for 21 U.S.C. 846 and 841(a) and (b)(1)(C) and (b)(1)(A)(iii) is found in Sections 2D1.4 and 2D1.1(c)(5). Those sections provide that conspiracy and unlawful trafficking of 384.5 grams of cocaine base have a base offense level of 34.
[Par. 36] Guideline Provisions: Based on a total offense level of 34 and a criminal history category of I, the guideline ...

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