hopkins i'm here for mr wilson we've got one issue today and we believe as we briefed that the district court erred and calculating the drug quantity of personal use drug quantity is not counted as relevant conduct in simple distribution cases while that is the case when there is a conspiracy not so with simple distribution now the th circuit has been silent directly on that issue has not spoken however other circuits have we've briefed that including the th circuit the rd circuit the six the th and the nd what a defendant is convicted of possession with intent and not of a conspiracy the district court is not allowed to is not allowed to infer that the entire allowed and the defendant was not under a burden of production to provide specific evidence that part of the one hundred and thirteen gram amount was for personal use yes yes based on my research i've seen it come down two ways by the circuit some circuits say that the burden is entirely on the government but the th circuit we cite the methamphetamine on we add it up for both arrests but he was interrogated by law enforcement he told them that he bought one hundred and thirteen grants but he told them that he bought most of it for personal use porsche he sold the portion to supply his drug habit but that he was primarily a user is for personal use and i would submit to the court that his statement that it was for personal use is consistent with with the facts of the case you know considering that the the actual evidence of conviction the tubes that you count he was charged with and that he was actually caught with methamphetamine i think told just a couple of grams but yet he was held accountable for one hundred and thirteen grams at sentencing based on his statements well in our st week we we kind of we set a  burden that's a little bit more of them you can't just say i'm an addict so the government prove how much cocaine that i didn't ingest right what what did mr wilson provide here in terms of evidence to quantify his personal use well when he was interviewed he was he was arrested bought most of it for personal use so i sold some to supply my drug habit our contention is that when he made those statements that that that he met his burden of production and then it shifted that that the burden shifted to the government at that point we believe that he met his burden of persuasion when he made those statements the law enforcement that most of the head of the most of the one hundred and thirteen grams was for his own personal is and i'd like to emphasize my client was not caught with one hundred and thirteen grams this one hundred and thirty three americans exclusively from his own personal statements you look at the actual offense on the act we've got to control drug buys a very small amounts of chips a little i guess the question is what maybe you can help us understand what happened at sentencing a recent what is a district court why did the district courts disagree with you if you made that argument well what was interesting was we made that argument but the i don't know exactly why they disagree with me but when you look at the present support for the probation officers response to our objection which the court adopted the probation officer stated that basically said that he was yes he he probation officer said my client purchased one hundred and thirteen grams the senator said that was some of it was for personal use and some of it was for distribution the record reflects the court just ignored that distinction the record reflect the court held him accountable for both personal use and in distribution and when you look at the a day and i'm the pre sentence report the pr well you know the majority of the circuits are not what i calculated a lot of circuits do possibly a majority or around half of them and in my in my opinion when you talk about conspiracy you're talking about far more serious drug offenders there are people that are really moving a lot of buying and selling a lot that's not the way the government charges conspiracy i mean in order to maybe get flipped testimony that the government usually includes pretty low level people in conspiracy charges yeah that that is true but in this particular situation my client wasn't charged with a conspiracy and so i'm no i just would like in in two senses why a rule should be the same or different in conspiracy and possession cases the the people that are just guilty  possession are not as big a threat to generally dealing with smaller drug amounts drug quantities but if you if you focus on qualities why shouldn't there be some kind of a presumption up with evidence that we know isn't it into sell because the quality involved was exceeds what would be a huge quantity could the government rely on that kind of a presumption which comes up well again i would say that in my in my experience in my practice i see conspiracy charges in more serious cases in most of the possession with intent cases dealing with less serious offenders for example my client to control drug buys around a gram each time or less i think they're both less than a gram it's there but the he sold less the gram both times i think the combined we have all quantities that he conceded that he had wendel were pretty substantial compared to use quantities isn't that true however he didn't just say that i he never said that i bought and sold one hundred and thirteen grams he said over time over a period of time he bought a one hundred and thirteen grams and he sa the problem that i have is that the person i have i have probably cuts both ways the person the entity that is best able in fact only able to put in evidence about how much of a can position is for personal use with the defendant on the other hand i have the concern of putting a burden of proof or going forward on the defendant in an element which is quite decidedly the government's burden of proving so i'm i'm kind of conflicted between those two values and anything you say about that would be helpful to me well  i do understand the court's concern if it does seem to me and in my research in the circuits i think the circuits that have rolled to the way that were are going that that they understood they understand the part about the government they shifting the burden of proof to the defendant on something that should be the government's but i do think in this instance my client he did more than just say i bought one hundred and thirteen grams he specifically stated it's in the discovery and we predicted that most he said that most of what he purchased was for personal use so he did explicitly state that over half of that one hundred and thirteen grams divided him to thirteen grams by two was for personal so he did say that is this just up to the defendant i mean if we if we say whatever the defendant says controls what this is going to be a pretty good opportunity for defendants always to say clients own admissions would it be different with this case be different if your client was caught with a one hundred and thirteen grams yes we would know what but why would it be different for you number one you've got evidence of one hundred and thirteen grams that he's caught with it but we have evidence of a one hundred and thirty grams of these these flowed through him what time period did he say that one hundred and thirty grams covered  probably about nine months or years something like that to be hidden never said he bought one hundred and thirteen grams i want he bottom in twenty eight gram instrument increments twenty eight grams four times as i got them i mean client bought a one hundred and thirteen grams from our targets and missions and he qualified that a mission immediately he qualified it by saying i bought a one hundred and thirteen grants and most of it was for personal use there was no other evidence that my client obtained a one hundred and thirteen grams outside of my client's own statements some of his own admission and he and he qualified that admission by stating that the majority of it over half was for for personal use and not for distribution and i think when you combine that with the fact that he combined that with the offen represent the united states ah i believe that we have three basic points st of the court's drug quantity finding was not clearly erroneous secondly we need to bring to this court's attention that a case it so i and we would argue that that that case is not controlling certainly this court has not followed it as the nile's case in the case but in all candor i felt it should bring in i should bring it to the courts  that where a person is buying distribution and personal drugs at the same time that's one of the visible act i might start with with with the courts question about whether the court just ignored the evidence or person yes and that is that is certainly not the case on this record the court had seen this defend if his intent was to ingest didn't then it wasn't an intent to distribute it so and i mean isn't it rational that where the two are in conflict that you've got to separate out how much he intended to distribute from how much he intended to personally use yes i think that that's rational i think that the course here uses clear evidence to back those initial august i'm not sure where the most came from i've looked and all i have seen so far is some i could be wrong but even if we accepted what counsel just at least fifty but not more than you know two hundred then the sentencing category here does not change where we parted who like me much but it might affect the court's citizens within the category or with the  port i mean that's a very big swing it still stays within the it does edge i'd have to question well i just description of most stores were a little better i'd say you know i think that's not very helpful i think and i'm wondering who you think has the burden to come forward with more specifics i believe that the burger according to the th circuit in wise which this court sided in the n s decision there's a suggestion without adds enough from the defendant to say approximately half and that's that's all the defendant says and we held that that's enough for the government then to have some burden to disprove that or to carry the burden of persuasion as a post production that he consumed the quantity their claim that he bought for sale the quantity that they're charging right i mean in approximately half isn't particularly better than most is it approximately half this is much better than most ok particularly in this case where the trouble more than a little trouble putting some kind of a burden on the government i mean on the defendant on this issue that is clearly the government's now maybe the use of a presumption or something like that it could help but how do you deal with the real you at all for all about putting the burden of proof on a defendant on an issue that is clearly big government's obligation you can't just get around it by saying to prove quantity you've got to look at the statute the government has the obligation to approve the quantity used for  that's the charge so they can't just say quantity the government has to prove distribution in ten particular defendant this he says yeah i mean i had some sales to support my habit and we all know when that doesn't ring implausible to us the drug addicts get drugs and they do sell part of it in order to support their habit is not  on the interrogation of the defendant why couldn't the government why couldn't they ask when they said how many times did you sound that you buy how much what can made you stats more questions how much of it did you used and how much of it did you sell and he has answered was some you know they i'm not sure they ever asked him that he just volunteered that most of it was for personal use but i mean he say that it's unworkable to have to do this by that's exactly how we got to the quantity he's being charged with here in the st place it's just  was represented by counsel who had you know some ability to put forth truth either through an affidavit or having the defendant make broader answered the sentencing of the people he sell to her evidence would indicate that at least twenty seven point five grams or so and even under that if if there were recent sing on then he would still be looking at you rephrase your argument that when you have an instance personal use and for distribution the government here said all of one hundred and thirteen should go to distribution in the defendant came back well and i understand this is not timely but if you look at it from a burden standpoint the defendant comes back and says hey i stabbed some or most or was for personal use you're saying that bale's here is burden and that point is that's not specific enough i guess i'm just trying to determine where where do you think the defendant went wrong i believe that the defendant had an obligation to indicate some yes you use words like the defendant seduce this that or the other thing does help us out if we agree with you that there is some burden on the defendant give us the precise legal standard i believe that it would be a burden to go forward i think that this court has made clear and the government would certainly agree that the government is are the ones who will carry the ultimate  seconds because we let her run over here muted mr hopkins the my client purchase one hundred and thirteen grams of methamphetamine is my client's own statement there's nothing independent of that my client said he purchased one hundred and thirteen grams but he purchased most of it for personal use and sold some of it to support his drug habit the government is making it sound like he was caught red handed with a one hundred and thirteen grams of meth and then he tried to explain it away i don't you said that several times i don't understand how that's very relevant to whether the evidence of the total purchase amount acquisition amount was fighting the drugs or because some confidence when foreman testified about it or whether the defendant's own statements no matter on any of those three options was the government has an amount of total drugs in the past two defendants and that doesn't satisfy this charge against him which is possession with intent to distribute so i just don't think that that distinction at least for me carries much weight i still need the need to go and determine how the government is established the nd part of the charge which is for distribution well i think it's important because there's no evidence the only evidence period that my client obtained one hundred and twenty three grams of methamphetamine or his own statements the offense conduct the control drug were really small amounts and if you're going to punish the guy for for what he says that he bought you also have to take into account his statements that of as to why he bought it and he in it was over a long period of time he didn't go out and buy a one hundred and thirteen grams at once we're talking about ten a ten month period so so i think i think it's important that if the only evidence the government has a he bought one hundred and thirteen grams or is statements and that was purchased over time almost a year how do you punish him for that but not ignore his statements i'm in a geisha and ignore his statements that he bought half of the stuff or more than half of the stuff for personal use most of it for personal use and i think it makes sense when you look at the small amount of the offense conduct the to control group by the small amounts the ten month