2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-2-2001

United States v. Pressler

Precedential or Non-Precedential:

Docket 00-1824

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Pressler" (2001). 2001 Decisions. Paper 144.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/144
Filed July 2, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 00-1824 and 00-2588 

UNITED STATES OF AMERICA 

v. 

DANIEL E. PRESSLER, Appellant in No. 00-1824 

UNITED STATES OF AMERICA 

v. 

SCOTT SHREFFLER, Appellant in No. 00-2588 

On Appeal From the United States District Court 

For the Middle District of Pennsylvania 

(D.C. Crim. No. 99-cr-00133-7 and 00133-8) 

District Judge: Honorable William W. Caldwell 

Argued: March 8, 2001 

Before: BECKER, Chief Judge, McKEE and 

STAPLETON, Circuit Judges. 

(Filed July 2, 2001) 

 JERRY A. PHILPOTT, ESQUIRE 

 (ARGUED) 

 P.O. Box 116, 227 No. High St. 

 Duncannon, PA 17020 

 Counsel for Appellant 

 Daniel Pressler 
 ANDREW J. OSTROWSKI, ESQUIRE 

 (ARGUED) 

 2080 Linglestown Road, Suite 201 

 Harrisburg, PA 17110 

 Counsel for Appellant 

 Scott Shreffler 

 DAVID M. BARASCH, ESQUIRE 

 United States Attorney 

 THEODORE B. SMITH, III (ARGUED) 

 Assistant United States Attorney 

 228 Walnut Street 

 Harrisburg, PA 17108 

 Counsel for Appellee 

 United States of America 

OPINION OF THE COURT 

BECKER, Chief Judge. 

A jury in the District Court for the Middle District of 

Pennsylvania convicted Daniel Pressler and Scott Shreffler 

of conspiracy to distribute heroin. While Pr essler appeals 

only his sentence, Shreffler challenges both his conviction 

and sentence. Shreffler's appeal requir es us to analyze the 

quality and quantity of evidence necessary to establish a 

conspiracy among individuals engaged in drug activity who 

are loosely associated. 

Shreffler submits that the evidence was insufficient to 

convict him of conspiring to distribute heroin. To make out 

a conspiracy charge, the Government must show: (1) a 

unity of purpose between the alleged conspirators; (2) an 

intent to achieve a common goal; and (3) an agr eement to 

work together toward that goal. The final factor--an 

agreement between the defendant and some other person-- 

is the essence of the offense, and ther e is no lesser 

standard for proving an agreement in drug cases. Although 

this and other courts have spoken of "factors" that tend to 

show the existence of a conspiracy, it is mor e accurate to 

say that the presence of certain facts often pr ovides 

 2 
circumstantial evidence of the underlying agr eement that is 

itself necessary to make out a conspiracy case. 

The evidence here showed that Shreffler obtained and 

distributed a large amount of heroin. The Government 

demonstrated that the main person from whom Shr effler 

obtained his heroin, Pedro "Pete" Caban, also distributed 

the drug to many others, and that some of the people to 

whom Caban sold heroin had been referr ed to him by

Shreffler. The evidence also established that many of the 

people to whom Shreffler and Caban pr ovided heroin sold 

the drug themselves, including a man with whom Shr effler 

lived for several months. And the Government proved that 

Shreffler was aware of all of the above facts. But there was 

simply no evidence that Shreffler ever agr eed to work with 

either his seller or his buyers to achieve a common goal or 

advance a common interest. 

The Government contends that the evidence her e was

sufficient to establish a conspiracy under this Court's 

holding in United States v. Gibbs, 190 F .3d 188 (3d Cir. 

1999). What this contention misses is that in Gibbs there 

was no dispute that a drug conspiracy existed--the only 

issue was whether the defendant had joined it. Her e, in 

contrast, the question is whether a conspiracy existed at 

all. As a result, much of the discussion in Gibbs is simply 

inapposite. Because the Government never established the 

existence of an agreement between Shreffler and someone 

else, we will vacate his conviction on the gr ounds that the 

evidence was insufficient to support it. W e will, however, 

affirm the judgment of sentence as to Pr essler. 

I. 

Situated in rural Mifflin County in central Pennsylvania, 

Lewistown is home to less than 30,000 inhabitants. In the 

latter half of the 1990s, public officials noticed a disturbing 

rise in heroin use among students enrolled in the 

Lewistown school system. Local police deemed the pr oblem 

so severe that they requested federal assistance. Federal 

investigators determined that the heroin was coming from 

Philadelphia, and that it was being imported by Lewistown 

residents who would drive to Philadelphia to purchase 

heroin and then return to Lewistown to use and sell it. 

 3 
On May 26, 1999, a grand jury indicted Pressler , 

Shreffler, and seven others for conspiring to violate the 

federal drug laws in violation of 21 U.S.C. S 846. Section (b) 

of Count One of the indictment charged the defendants 

with conspiring to "[i]llegally possess with intent to 

distribute and illegally distribute, in violation of 21 U.S.C. 

S 841(a)(1), HEROIN, a Schedule I contr olled substance 

while over the age of 18 years to individuals under the age 

of 21 years, in violation of 21 U.S.C. S 859(a)." 

Although their co-defendants pled guilty, Pr essler and 

Shreffler exercised their rights to a jury trial. The jury 

heard testimony from four of Pressler's and Shreffler's 

former co-defendants, as well as eight other witnesses. We 

provide the details of this testimony, infra at Part II(B), in 

the context of discussing Shreffler's claim that the evidence 

was insufficient to support his conviction. The court 

instructed the jury that they were to decide whether the 

defendants had "engaged in a conspiracy to distribute 

heroin," but, consistent with prevailing law at the time, did 

not ask the jury to determine the quantity of heroin that 

the defendants had conspired to distribute. The jury found 

Pressler and Shreffler guilty, and, via a special verdict form, 

also found that "the Government ha[d] proven beyond a 

reasonable doubt that [Pressler and Shr effler], being 18 

years or older, conspired to distribute heroin to persons 

under 21 years old." 

The Probation Officer prepared Pr esentence Investigation 

Reports (PSIs) for both Pressler and Shr effler. Pressler 

lodged two objections, one of which is relevant here. In P 14 

of Pressler's PSI, the Probation Officer relayed the contents 

of a statement in which Craig Bedleyon told investigators 

that he had been hospitalized after overdosing on heroin 

obtained from Pressler. The Pr obation Officer relied on 

Bedleyon's statement in determining that Pr essler was 

eligible for an enhanced Offense Level of 38 pursuant to 

U.S.S.G. S 2D1.1(a)(2), which applies "if the defendant is 

convicted under 21 U.S.C. S 841(b)(1)(A), (b)(1)(B), or 

(b)(1)(C) . . . and the offense of conviction establishes that 

death or serious bodily injury resulted fr om the use of the 

substance." Pressler objected, claiming that his sentence 

could not be enhanced based on Bedleyon's over dose

 4 
because it had not been charged in the indictment and 

proved beyond a reasonable doubt. 

The District Court held sentencing hearings for Pr essler 

on May 16 and June 2, 2000. At the close of the hearings, 

the court found that the Government had pr oved beyond a 

reasonable doubt that Pressler provided the heroin upon 

which Bedleyon had overdosed, and opined that such 

findings were the province of the court rather than the jury. 

The court therefore determined that Pressler was eligible for 

the death or serious bodily injury enhancement, which set 

his base Offense Level at 38. Other enhancements raised 

Pressler's Offense Level to 43, and his Criminal History 

Category was determined to be IV. This combination 

ordinarily would have resulted in a mandatory life sentence, 

see U.S.S.G. Ch. 5 Pt. A, but the District Court decided to 

depart downward, noting that it found Pr essler to be "less 

culpable" than Shreffler. Stating that it had "a duty to avoid 

unwarranted sentencing disparities" and characterizing 

Pressler's case as "present[ing] a circumstance outside of 

the heartland," the District Court sentenced Pr essler to 

serve 336 months in prison. 

The District Court held sentencing hearings concer ning 

Shreffler on June 16 and July 14, 2000, and made 

extensive factual findings on August 9, 2000. Employing a 

preponderance of the evidence standard, the court found 

that Shreffler had provided heroin to both Joseph Stoner 

and Scott Knouse, that Stoner and Knouse had over dosed 

on heroin provided by Shreffler , and that each had suffered 

serious bodily injury as a result. The court also determined 

that Shreffler had distributed between 69 and 113 grams of 

heroin. In response to these findings, the Probation Officer 

revised Shreffler's PSI and concluded that he was eligible 

for an enhanced Offense Level of 38 pursuant to U.S.S.G. 

S 2D1.1(a)(2). Two other enhancements gave Shr effler an 

Offense Level of 42, and this, in conjunction with a 

Criminal History Category of V, left Shr effler with a 

sentencing range of 360 months to life. See U.S.S.G. Ch. 5 

Pt. A. On August 23, 2000, the District Court sentenced 

 5 
Shreffler to 360 months imprisonment. Both Shreffler and 

Pressler filed timely appeals.1 

II. 

Shreffler's primary claim is that the evidence was 

insufficient to convict him of conspiring to distribute 

heroin. In so arguing, he takes up "a very heavy burden." 

United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995). 

The Government needed to show only that Shr effler 

conspired with "someone--anyone." United States v. Obialo, 

23 F.3d 69, 73 (3d Cir. 1994). Mor eover, because Shreffler 

is appealing from a jury verdict against him, "[w]e must 

view the evidence in the light most favorable to the 

government and must sustain [the] jury's verdict if `a 

reasonable jury believing the government's evidence could 

find beyond a reasonable doubt that the gover nment proved 

all the elements of the offense.' " United States v. Rosario, 

118 F.3d 160, 163 (3d Cir. 1997) (quoting United States v. 

Salmon, 944 F.2d 1106, 1113 (3d Cir . 1991)). The elements 

of a charge of conspiracy are: (1) "a unity of purpose 

between the alleged conspirators;" (2) "an intent to achieve 

a common goal;" and (3) "an agreement to work together 

toward that goal." United States v. Gibbs, 190 F.3d 188, 

197 (3d Cir. 1999). 

A. 

A perpetual problem plagues the law of conspiracy: There 

is no conspiracy unless the defendant agrees to work with 

someone else, but rarely is there dir ect evidence of a 

qualifying agreement. Consequently, the of fense is usually 

provable only through circumstantial evidence. Many

courts (including this one) have spoken often of"factors" 

that tend to show the existence of a conspiracy. These 

"factors" are not direct proof that a conspiracy exists; 

rather, their presence serves as cir cumstantial evidence of 

the underlying agreement that is itself necessary to sustain 

_________________________________________________________________ 

1. The District Court had jurisdiction under 18 U.S.C. S 3231. We have 

appellate jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. 

S 3742(a). 

 6 
a conspiracy charge. See United States v. Kapp, 781 F.2d 

1008, 1010 (3d Cir. 1986) (stating that the existence of a 

conspiracy "can be `inferred from evidence of related facts 

and circumstances from which it appears as a reasonable 

and logical inference, that the activities of the participants 

. . . could not have been carried on except as the r esult of 

a preconceived scheme or common understanding' " 

(quoting United States v. Ellis, 595 F .3d 154, 160 (3d Cir. 

1979))). 

The challenge we have described is especially acute when 

it comes to drug conspiracies, which have comprised a 

large portion of the criminal dockets of federal courts in 

recent years. In the typical drug conspiracy, there is a 

primary dealer who will often have a high-level confederate 

or, at least, one or more mid-level confederates. The 

primary dealer will sell drugs personally and/or thr ough 

these confederates. These transactions may consist of small 

or moderately sized sales to end users, or of lar ge sales to 

individuals who then resell the drugs to those not under 

the direct or indirect control of the primary dealer. 

Accordingly, in many drug cases, the principal question is 

whether the people who buy drugs from the primary dealer 

or from his or her confederates have joined the underlying 

conspiracy. 

B. 

There is no question that Shreffler distributed a sizeable 

amount of heroin. Evidence at trial established at least 

nineteen named people to whom Shreffler pr ovided the 

drug, most of them on numerous occasions and several of 

them more than 30 times. Most of Shreffler's buyers were 

young--in fact, he sold drugs to several people who were 

sixteen years old or younger. Shreffler distributed heroin 

while at private homes, on public streets, and in public 

parks. He often insisted that people to whom he pr ovided 

heroin consume it in front of him, so as to obviate the 

possibility that they might turn the drugs over to the police. 

Shreffler personally introduced multiple people to heroin, 

taught at least two people how to inject themselves, and at 

least twice provided heroin to people immediately after they 

had been discharged from drug rehabilitation programs. 

 7 
Shreffler obtained his heroin in Philadelphia. Numerous 

people accompanied him to buy heroin, and Shr effler made 

the trip in cars belonging to at least three different 

individuals.2 In Philadelphia, Shreffler would sometimes 

buy heroin from street dealers, though he would most often 

buy from Pedro "Pete" Caban. Caban sold heroin out of his 

house, and Government witnesses testified that they

observed Caban sell to a large number of people. Shreffler 

bragged to brothers Anthony and Aaron Forshey (who both 

accompanied Shreffler to Philadelphia to buy heroin on 

several occasions) that he had "got[ten] Pete off the street" 

by purchasing so much heroin from him. Shreffler told 

Aaron Forshey that Caban provided "a safe way to buy 

heroin," because buying heroin fr om Caban at his house 

obviated the need to purchase heroin fr om street dealers. 

Caban sold heroin in prepackaged bundles that were 

sometimes stamped with the words "Banshee," 

"Competition," and "Grenades." 

Most of the people to whom Shreffler distributed heroin 

had other sources of supply (this source was often 

Pressler), and many of them distributed the drug as well. 

Many of the individuals with whom Shreffler traveled to 

Philadelphia to buy heroin also went without him, and 

some of them purchased heroin from Pedro Caban on those 

trips. 

Numerous witnesses testified that her oin (including that 

sold by Caban and Shreffler) is packaged in a standardized 

form and is distributed for a set price. Individual doses are 

contained in plastic "bags," and between 8 and 13 "bags" 

_________________________________________________________________ 

2. At oral argument, the Government contended that Shreffler gave 

people heroin in exchange for driving him to Philadelphia, and 

specifically referenced the testimony of James Walker. Walker testified 

that he had driven Shreffler to Philadelphia on 5 or 6 occasions, and 

stated that Pressler had given him heroin in exchange for a ride to 

Philadelphia, but never said the same thing about Shreffler. Though we 

must make all reasonable inferences in favor of the Government, "[t]he 

law . . . requires that `the infer ences drawn . . . have a logical and 

convincing connection to the facts established.' " United States v. 

Applewaite, 195 F.3d 679, 684 (3d Cir . 1999) (quoting United States v. 

Casper, 956 F.2d 416, 422 (3d Cir . 1992)). We may not "infer" the 

existence of evidence that was simply never pr offered. 

 8 
are placed in a larger plastic bag to cr eate a "bundle." 

During the relevant time period, heroin sold for $10 per bag 

in Philadelphia and for $20 per bag in Lewistown, though 

a few witnesses testified that they were sometimes given 

volume discounts. Many of the Government's witnesses 

described seeing Shreffler in possession of multiple bundles 

of heroin. 

C. 

We turn to the question whether the evidence was 

sufficient to convict Shreffler for conspiracy to violate the 

federal drug laws. Though Shreffler bought a large amount 

of heroin from Caban, and sold her oin to a large number of 

people, " `a conspiracy requir es an agreement to commit 

some other crime beyond the crime constituted by the 

agreement itself.' " United States v. Gibbs, 190 F.3d 188, 

197 (3d Cir. 1999) (quoting United States v. Kozinski, 16 

F.3d 795, 808 (7th Cir. 1994)). In Shr effler's view, the 

evidence here simply does not show such an agr eement. 

1. 

In both its Opening and Supplemental Briefs, the 

Government assumes that this case is gover ned by United 

States v. Gibbs, 190 F.3d 188 (3d Cir . 1999), and asserts 

that Gibbs mandates that we uphold Shr effler's conviction. 

The Government's argument, however , misses a critical 

distinction between this case and Gibbs. In Gibbs there was 

no question that a cocaine distribution ring headed by 

Terrence Gibbs and Darryl Coleman existed; the dispute 

was whether Antjuan Sydnor (who had purchased large

amounts of heroin from Gibbs) had agr eed to join the 

conspiracy. See id. at 195, 200. Her e, in contrast, the 

question is whether there was a conspiracy between any of 

these individuals at all. We do not suggest that the 

Government's burden of proof is higher where the existence 

of an underlying group is contested. Instead, we emphasize 

that certain types of circumstantial evidence become 

substantially more probative if it can be established that a 

conspiracy existed and the only remaining question is 

whether the defendant was a part of it. 

 9 
To see why, imagine a situation where the defendant is a 

street-level drug dealer. If it is shown that an organized 

gang controls drug distribution in the defendant's 

neighborhood and that the gang has divided the 

neighborhood into zones in which only a single dealer may 

operate, then the fact that the defendant consistently sells 

his or her drugs only with certain geographical parameters 

would provide evidence that the defendant both knew of the 

existence of the conspiracy and was a participant in it. But 

were there no evidence of a larger conspiracy to control 

drug distribution, then the fact that the defendant did all of 

his or her sales in a given area would be essentially 

irrelevant to the question whether the defendant was the 

member of a conspiracy.3 

As a result, much of the language from Gibbs upon 

which the Government relies is inapposite. For example, 

Gibbs acknowledged that " `even an occasional supplier (and 

by implication an occasional buyer for redistribution) can 

be shown to be a member of the conspiracy by evidence, 

direct or inferential, of knowledge that she or he was part 

of a larger operation.' " Id. at 198 (quoting United States v. 

Price, 13 F.3d 711, 728 (3d Cir. 1994) and citing United 

States v. Theodoropoulos, 866 F.2d 587, 594 (3d Cir. 1989)) 

(emphasis added). Such a precept can per form analytic 

work if it is clear that a drug conspiracy existed and the 

only question is whether the defendant was a part of it, but 

it is singularly unhelpful where the question is whether a 

_________________________________________________________________ 

3. Illustrative of this point is United States v. Price, 13 F.3d 711 (3d 

Cir. 

1994), where the evidence established the existence of a criminal 

organization known as the Junior Black Mafia ("JBM"). See id. at 716. As 

relevant here, defendant Anthony Long contended that the evidence was 

insufficient to convict him of conspiring to distribute cocaine and 

heroin, 

arguing that it showed only that he was an"independent drug dealer 

who associated with members of the JBM." Id. at 731. In explaining why 

we disagreed, we noted, inter alia, that Long had two significant social 

events (a wedding and a funeral) "at which many, although not 

necessarily all, JBM members gathered." Id. Standing alone, that Long 

attended a given wedding or funeral would do nothing to show that he 

was a member of a criminal conspiracy. But once it was shown that the 

funeral and the wedding were significant social events for the members 

of the JBM, the fact that Long was present on those occasions provided 

circumstantial evidence that he was a member of that organization. 

 10 
"larger operation" was present at all. Because here there 

was no independent evidence of an overarching conspiracy, 

that Shreffler knew that his seller sold drugs to other 

people or that some of his buyers did likewise pr ovides 

scant support for the proposition that any of these

individuals agreed to cooperate with one another. 

This basic difference also explains why one of the factors 

about which we spoke in Gibbs does not translate well to 

the situation at bar. Gibbs stated that "the length of 

affiliation between the defendant and the conspiracy" was 

relevant to determining whether the defendant agreed to 

join it. Id. at 199 (emphasis added). W e explained that this 

factor is relevant because "when a defendant drug buyer 

has repeated, familiar dealings with members of a 

conspiracy, that buyer probably comprehends fully the 

nature of the group with whom he [or she] is dealing, is 

more likely to depend heavily on the conspiracy as the sole 

source of his [or her] drugs, and is mor e likely to perform 

drug-related acts for conspiracy members in an effort to 

maintain his [or her] connection to them." Id. at 199. This 

factor (and our explanation for it) assumes the existence of 

an underlying conspiracy; after all, it makes little sense to 

talk about the defendant's comprehension of the nature of 

the "group" with whom he or she is dealing unless it has 

already been shown that there is an underlying group. The 

lack of an underlying (or overarching) conspiracy is the 

Government's problem here. 

Lastly, and contrary to our admonitions, the Gover nment 

seeks to use one of the Gibbs factors as dir ect (and, indeed, 

dispositive) evidence of the existence of a conspiracy, rather 

than as circumstantial evidence of the underlying 

agreement necessary to create a conspiracy in the first 

place. The Government claims that many of Shr effler's 

buyers "were not simple purchasers of drugs from Shreffler; 

they knew that Shreffler obtained his her oin from `Pete' 

because [they] accompanied Shreffler on[trips to] purchase 

[ heroin] from `Pete' in Philadelphia on more than one 

occasion, and they knew about one another and about

Shreffler's distribution to other persons. Under the holding 

of Gibbs then, they were conspirators with Shreffler in the 

distribution of heroin . . . and he was a conspirator with 

each of them." 

 11 
In upholding the conviction in Gibbs, we str essed that 

Sydnor (the buyer) had been aware that Gibbs (the seller, 

who was unquestionably a member of a drug conspiracy) 

sold drugs to people other than himself, and emphasized 

that Gibbs had known that Sydnor resold drugs that he 

bought from Gibbs to other people. See id. at 201. That 

Sydnor knew that Gibbs sold drugs to many other people 

was circumstantial evidence that Sydnor knew that Gibbs 

was part of a larger distribution ring, and the fact that 

Gibbs was aware that Sydnor resold the drugs that he got 

from Gibbs was circumstantial evidence that Sydnor was a 

part of that ring. See id. at 201. But the mere fact that a 

defendant comprehends that a person from whom he or she 

buys drugs or to whom he or she sells drugs also sells 

drugs to others is not itself sufficient pr oof that the 

defendant and the other person are conspirators. Except for 

those who grow, harvest, or process contr olled substances 

themselves, all users and dealers get their drugs fr om 

someone else. Importantly, in Gibbs we did not hold that 

such evidence standing alone proved that Sydnor had

joined the Gibbs/Coleman conspiracy; instead, we pointed 

to numerous other significant pieces of evidence, which we 

set forth in the margin,4 that bore upon that question, and 

ultimately held that all of the "evidence [was] sufficient to 

support the conclusion that Sydnor intended to join the 

[Gibbs/Coleman] conspiracy and shared the conspiracy's 

goal of distributing cocaine for profit." Id. at 202-03. The 

fact that several of Shreffler's buyers knew that Shreffler 

often got his drugs from Caban and that they knew about 

each other is not enough to establish an agr eement among 

them to distribute heroin. Having established that Gibbs is 

not dispositive here, we now turn to the Government's 

arguments as to why the evidence was sufficient to support 

_________________________________________________________________ 

4. The Government had surreptitiously recorded telephone conversations 

between Sydnor, Gibbs, and another man. They revealed that: (1) Gibbs 

had converted powder cocaine into crack for Sydnor; (2) Sydnor had 

purchased a large amount of drugs fr om Gibbs; (3) Sydnor had offered 

to provide physical protection for Gibbs; (4) Sydnor had solicited advice 

from Gibbs about the commercial aspects of the drug trade.; (5) Gibbs 

had sold Sydnor drugs on credit; and (6) Sydnor and Gibbs had 

conducted their business in code. See Gibbs, 190 F.3d at 200-02. 

 12 
the conclusion that Shreffler conspir ed with particular 

individuals. 

2. 

We begin with Caban and the Forsheys, all of whom were 

named in the indictment. Both Aaron and Anthony Forshey 

traveled with Shreffler to Philadelphia numer ous times to 

acquire heroin, but both also often went without him. The 

Forsheys originally purchased heroin fr om street dealers, 

but Shreffler eventually introduced them to Caban, 

explaining that Caban offered a "safer" way to purchase the 

drug. Shreffler bragged to the Forsheys that his purchases 

from Caban were so sizeable that they wer e responsible for 

"taking [Pete] off the street" and allowing Caban to sell 

heroin directly out of his house. 

This evidence, says the Government, "was sufficient, at 

the very least, to establish an agreement between Shreffler 

and `Pete' to distribute heroin to the Forsheys." We 

disagree. Had Shreffler promised to steer business Caban's 

way in exchange for a discount on his own pur chases or for 

a share of Caban's profits, the two would unquestionably 

have qualified as co-conspirators. Unfortunately for the 

Government, however, there was simply no evidence of 

such an agreement. Instead, all that the evidence showed 

was that Shreffler introduced the Forsheys to another, 

superior source of supply from which Shr effler himself had 

purchased a large amount of heroin. 

What was lacking here can be illustrated by use of 

analogy. Imagine the owners of two convenience stor es, X 

and Y. Both originally obtain soda for r esale from various, 

unaffiliated wholesalers, but X discovers that wholesaler Z 

is easier to deal with. X then begins to buy all of her soda 

from Z (a sizeable amount) and infor ms Y that Z provides a 

superior source of supply. Y then begins to purchase a 

great deal of soda from Z as well. Just as this evidence, 

standing alone, would be insufficient to pr ove an agreement 

between X and Z to distribute soda to Y, the evidence in 

this case was not enough to support a conclusion that 

Shreffler and Caban conspired to distribute heroin to the 

Forsheys. It is common for people to tell their friends about 

 13 
a good store or restaurant. Though the Government proved 

that Shreffler was a very good customer to Caban, that he 

had recommended Caban to others, and that Caban 

benefitted from Shreffler's patr onage, it did not show that 

Shreffler and Caban ever agreed to work together on

anything. 

Likewise, we conclude that there was insufficient 

evidence to support a finding that Shreffler conspired with 

the Forsheys. The Government notes that "the evidence at 

trial established that the heroin [that Shr effler and the 

Forsheys] obtained from `Pete' was not solely for their own 

use but was sold and otherwise distributed by them to 

others." "Thus," submits the Government, "the Forsheys 

admitted that they conspired with `Pete' and with Shreffler 

to distribute heroin." The Government reads too much into 

this evidence--the fact that the Forsheys and Shr effler 

knew that they were involved in the same "business" (in 

this case, the distribution of heroin) and that they obtained 

much of their supply from the same "distributor" (Caban) 

simply does not establish that they agreed to pool their 

"efforts." We therefor e hold that there was insufficient 

evidence to support a jury finding that Shr effler conspired 

with Pedro Caban, Aaron Forshey, or Anthony Forshey.5 

3. 

Although he was not named in the indictment, the 

Government's conspiracy case was strongest with respect to 

Charles "Chuckie" Stoner. Stoner and Shreffler traveled to 

Philadelphia together to purchase heroin on several

occasions, although each also frequently went without the 

other. Shreffler was one of the people who introduced 

Stoner to Caban, and the latter later became a major 

source of supply for the former. Shreffler essentially lived 

with Stoner for "four or five months." During that time, 

both Shreffler and Stoner sold heroin out of Stoner's home, 

_________________________________________________________________ 

5. The Government's Brief also summarily alleges that James Walker was 

a co-conspirator of Shreffler, but elaborates only that Walker bought 

heroin from both Shreffler and Charles Stoner. In the absence of 

stronger evidence than this, we conclude that the evidence was 

insufficient to support a conclusion that Shreffler conspired with Walker. 

 14 
people would call "seven or eight" times a day about 

purchasing heroin. Stoner obtained some of his heroin from 

Shreffler, and would sometimes sell heroin to those who 

came to his house looking for Shreffler when the latter was 

not present. 

This case is somewhat similar to United States v. Powell, 

113 F.3d 464 (3d Cir. 1994), wher e we found the evidence 

sufficient to support a jury's finding that James Powell had 

conspired with his brother Antonio Powell to distribute 

cocaine. In that case: 

 A witness testified that James and Antonio Powell lived 

 together, that they both sold cocaine, that they shared 

 plastic bags to package the cocaine, and that if one of 

 the brothers ran out of cocaine to sell, the other 

 brother would supply it. As noted, James Powell 

 assured a police informant that the cocaine the Powell 

 brothers would sell the next day would match in 

 quality the cocaine sold earlier by Antonio Powell. 

 During a recorded telephone conversation, Antonio 

 Powell consulted James Powell before setting the sales 

 price for cocaine[, and James Powell also served as a 

 lookout and driver when Antonio Powell sold cocaine to 

 an undercover agent]. 

Id. at 467. 

The relationship between Shreffler and Stoner bears

some resemblance to that between the Powell br others. Like 

the Powells, Shreffler and Stoner lived together for several 

months, and both of them sold drugs out of their shared 

residence on a daily basis. And there was evidence that 

Stoner would sometimes supply drugs to customers when 

Shreffler was not available to do so. But, standing alone, all 

that this evidence proved was that Shreffler and Stoner 

were drug dealers who lived together for a time; it would 

not, in our view, be enough to show the existence of an 

agreement between them. 

Moreoever, in Powell ther e was a great deal of evidence 

that the brothers had pooled their efforts, but none of the 

types of evidence that existed in that case ar e present here. 

First, as noted above, James Powell acted as a lookout 

when Antonio Powell conducted drug sales, and that fact 

 15 
alone may well have been enough to show the existence of 

a conspiracy between the brothers. When one person serves 

as a lookout during another person's drug deals, it suggests 

a unity of purpose and an intent to achieve a common goal 

(to sell drugs without being caught) and an agr eement to 

work together toward that goal (because one does not serve 

as a lookout without agreeing to do so). In this case, 

however, there was no testimony that Shr effler or Stoner 

ever served as a lookout for the other. 

Second, the fact that the Powell brothers consulted each 

other before setting a sales price for a given deal strongly 

implied that they had agreed to coordinate their activities. 

Here, in contrast, there was no evidence of such 

conversations between Shreffler and Stoner . Lastly, the fact 

that the Powell brothers shared packaging materials

demonstrated that they had integrated their activities, 

which implied the presence of an underlying agr eement. 

There was no such evidence here. 

Also lacking here are the sort of facts that we found 

sufficient to support the conviction in Gibbs . In Gibbs, there 

was evidence that Sydnor (the buyer) had offer ed to provide 

physical protection for Gibbs (the seller). See 190 F.3d at 

200--01. That Sydnor was willing to stick his neck out for 

Gibbs suggested that he had a greater stake in the latter's 

safety than a typical buyer, which in tur n implied that a 

cooperative relationship existed between the two of them. 

See id. at 201. There was also evidence that Gibbs had sold 

Sydnor drugs on credit, which meant that each had an 

economic stake in the other's continued success. See id. 

Lastly, Gibbs and Sydnor conducted their business in code, 

which demonstrated a considerable degree of coordination 

and suggested the presence of a cooperative r elationship. 

See id. at 200-02. The Shreffler/Stoner r elationship had 

none of these hallmarks. 

The only direct evidence of an agreement between 

Shreffler and Stoner was a single sentence in James

Walker's testimony. Walker stated that Stoner "would sell 

for Scott when Scott wasn't around." Although the question 

is quite close in light of the jury's verdict and our resultant 

standard of review, we conclude that this evidence is not 

strong enough to support Shreffler's conviction. 

 16 
Walker made the statement at issue in r esponse to the 

question "Tell us how you were intr oduced to [Charles 

Stoner]." Walker's full answer r eads: "I went to his house, 

and I bought a bag of heroin from him. He would sell for 

Scott when Scott wasn't around." The next question was: 

"How do you know he was selling for Scott Shr effler?" 

Walker got as far as saying "Because he told me that --" 

before being interrupted by an objection. The objection was 

first sustained, though it was eventually overruled after a 

colloquy between the court and counsel for both sides. At 

that point, the prosecutor asked Walker to "[t]ell us what 

was said to you by Stoner concerning the her oin." In 

response, Walker stated: "I went ther e and he was out of 

heroin. He said he'd have to call Scott to get some more. So 

he was getting it from Scott to sell." W alker's testimony 

then turned to a discussion of his dealings with Scott 

Shreffler. 

What the above makes manifest is that it is unclear what 

Walker meant by the critical statement or the basis upon 

which he made it. Perhaps by "sell for Scott" Walker meant 

that he thought that Stoner sold heroin on behalf of 

Shreffler rather than in lieu of Shr effler when the latter was 

not around the house. But even if this is the correct 

reading of Walker's statement, the r ecord contains no way 

to determine the basis of his belief. W alker started to 

address that issue, but was interrupted by an objection and 

the prosecutor never returned to it. The only information 

we have that bears on the basis for Walker's belief is his 

response to the next question put to him, when he said: "I 

went there and he was out of heroin. He said he'd have to 

call Scott to get some more. So he was getting it from Scott 

to sell." If Walker's belief that Stoner was selling "for" 

Shreffler was based only on the facts contained in the 

above-quoted answer, then that evidence would be 

insufficient to support a finding that ther e was an 

agreement between Shreffler and Stoner for the reasons 

stated above. If Walker's belief was based on something 

else, then there is nothing in the recor d to explain or justify 

Walker's inchoate conclusion. 

We must, of course, view the evidence as a whole and in 

the light most favorable to the Government; moreover, we 

 17 
must make all reasonable inferences in its favor. See United 

States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997). But it 

is also the case that, even after doing that, the question 

remains whether a reasonable jury couldfind that the 

Government had proved each and every element of the

offense beyond a reasonable doubt. See id. Although the 

evidence here would almost certainly be enough were this 

a civil case and the burden of proof a mer e preponderance 

of the evidence, this is a criminal case and the Government 

had a much higher burden to surmount. Cf. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (holding that 

a court considering a motion for summary judgment must 

take into account the standard of proof that would apply at 

trial, and specifically drawing an analogy to situations 

where courts consider motions for acquittal in criminal 

cases). In the absence of other evidence from which it could 

be inferred that Shreffler and Stoner had agreed to a 

common endeavor (and there is none), we hold that 

Walker's ambiguous and unexplicated statement is not 

enough to support a conclusion beyond a reasonable doubt 

that Shreffler and Stoner were confederates who agreed to 

work together as opposed to two drug dealers who shared 

the same house for a time. 

For a reason that escapes us, the Gover nment did not 

charge Shreffler with distribution of heroin--a crime for 

which the evidence at trial was more than sufficient to 

convict, and for which he could have received the sentence 

challenged here.6 Instead, it opted to indict and try him 

only for conspiracy to distribute heroin. But a conspiracy 

conviction may stand only if the Gover nment proves the 

existence of an underlying agreement. Ther e is no special 

rule for, or lesser burden in, drug cases. To parody a 

familiar literary allusion, a conspiracy is a conspiracy is a 

conspiracy. Because the Government never demonstrated 

the existence of an agreement between Shr effler and at 

least one other person, we will set aside Shr effler's 

_________________________________________________________________ 

6. We express no opinion as to whether the Government may re-indict 

Shreffler for distribution. 

 18 
conviction on the grounds that the evidence was 

insufficient to support it.7 

III. 

Pressler advances only one argument befor e us. He 

contends that his sentence was imposed in violation of 

(Text continued on page 21) 

_________________________________________________________________ 

7. Shreffler also contends that the District Court: (1) erred in allowing 

testimony about used heroin packages and syringes; (2) violated the 

teachings of Apprendi v. New Jersey, 530 U.S. 466 (2000) by finding that 

he had distributed heroin that resulted in two overdoses instead of 

submitting the issue to the jury; and (3) err ed in determining the 

amount of heroin attributable to him and in determining that he had 

provided the heroin resulting in the Krouse and Stoner overdoses. In 

light of our holding that there was insufficient evidence to convict 

Shreffler on the underlying conspiracy char ge, we need not address 

these issues. 

Prompted by questioning from a member of the panel, Shreffler also 

contended at oral argument that the District Court had erred in 

determining that he was eligible for an enhanced Offense Level of 38 

pursuant to U.S.S.G. S 2D1.1(a)(2), which applies "if the defendant is 

convicted under 21 U.S.C. S 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), . . . 

and 

the offense of conviction establishes that death or serious bodily injury 

resulted from the use of the substance." The basic thrust of the 

argument is that Shreffler's "of fense of conviction establishes" only 

that, 

being over 18 years old, he conspired to distribute heroin to persons 

under 21, but it does not "establish that death or seriously bodily injury 

resulted" from the heroin that Shr effler conspired to distribute. If this 

submission were correct (and had we upheld the conviction), then 

Shreffler would have needed to be resentenced to a substantially shorter 

term of imprisonment because the highest Of fense Level for which he 

could otherwise be eligible would be 32. The ef fort to determine the 

proper meaning of "offense of conviction" in the context of drug cases 

illustrates a potentially serious problem with regard to the drafting of 

the 

Guidelines in the wake of Apprendi. Although we need not decide this 

claim because of our decision to vacate Shreffler's conviction, we 

identify 

the problem for the benefit of the Sentencing Commission and suggest 

that it may wish to consider redrafting S 2D1.1(a)(2). 

The Guidelines never define "offense of conviction," but several factors 

lead us to believe that the phrase includes only the facts underlying the 

specific criminal offense for which the defendant was convicted. 

Application Note 1(l) to S 1B1.1 states that" `[o]ffense' means the 

offense 
of conviction and all relevant conduct under S 1B1.3 (Relevant Conduct) 

 19 
unless a different meaning is specified or is otherwise clear from the 

context." (emphasis added). This formulation makes manifest that 

"offense of conviction" is narrower than "offense." This supposition is 

supported by Section 1B1.3, which states that a defendant's "Offense 

Conduct" is determined by examining 

 all acts and omissions committed, aided, abetted, counseled, 

 commanded, induced, procured, or willfully caused by the 

 defendant; and in the case of a jointly undertaken criminal 

activity 

 . . . [includes] all reasonably for eseeable acts and omissions of 

 others in furtherance of the jointly undertaken criminal activity, 

that 

 occurred during the commission of the of fense of conviction, in 

 preparation for that offense, or in the course of attempting to 

avoid 

 detection or responsibility for that of fense. 

Significantly, this language suggests that not all acts or omissions 

committed or willfully caused by a defendant during the commission of 

the offense of conviction are themselves part of the offense of 

conviction, 

and seems to indicate that "offense of conviction" includes only the facts 

undergirding the specific offense for which the defendant was convicted, 

whereas "Relevant Conduct" includes other , uncharged and related 

activities. 

Additional support for our narrower reading of "offense of conviction" 

comes from U.S.S.G. S 1B1.2(a) (Applicable Guideline), which instructs 

sentencing courts to begin by "determin[ing] the offense guideline section 

in Chapter Two (Offense Conduct) applicable to the offense of conviction 

(i.e., the offense conduct charged in the indictment or information of 

which 

the defendant was convicted)." (emphasis added). Also relevant is the 

amendment history of S 3A1.1(a) (Hate Crime Motivation of Individual 

Victim). In the past, that Section pr ovided for a three step Offense 

Level 

enhancement "[i]f the finder of fact . . . determines . . . that the 

defendant intentionally selected any victim . . . as the object of the 

offense because of actual or perceived race, color, religion, national 

origin, ethnicity, gender, disability or sexual orientation." U.S.S.G. 

S 3A1.1(a), historical notes, 1997 amendments, available in Westlaw 

(emphasis added). In 1997, however, the operative language was changed 

to require that the defendant select the victim "as the object of the 

offense of conviction." Id. (emphasis added). "Consistent with Congress' 

intent to punish a defendant whose primary objective in committing a 

hate crime was to harm a member of a particular class of individuals," 

the Sentencing Commission explained that the amendment was 

necessary to clarify "that the enhancement in subsection (a) is limited to 

the victim of the defendant's offense of conviction." (emphasis added). 

 20 
Apprendi v. New Jersey, 530 U.S. 466 (2000), because it 

was arrived at in part as a result of sentencing findings 

made by the District Court. He is incorrect. 

The jury convicted Pressler of conspiracy to distribute an 

_________________________________________________________________ 

This history supports our view that "offense of conviction" includes only 

the substantive crime for which a particular defendant was convicted. 

If we are correct, then the critical inquiry involves identifying the 

substantive crime for which the defendant was convicted. But Apprendi 

makes answering that question difficult in many drug cases. Before 

Apprendi, the consensus view was that 21 U.S.C. S 841 contained but a 

single "crime," which was codified in S 841(a). See, e.g., United States 

v. 

Chapple, 985 F.2d 729, 731 (3d Cir . 1993). That Section makes it illegal 

to, inter alia, "knowingly or intentionally . . . manufacture, distribute, 

or 

dispense . . . a controlled substance." Section S 841(b) then lists an 

enormous range of variables that operate to cr eate sentencing exposures 

ranging from "not more than one year" to a mandatory life sentence. 

Compare 21 U.S.C. S 841(b)(3) (distribution of a Schedule V controlled 

substance) with id. S 841(b)(1)(C) (distribution of a Schedule I or II 

controlled substance by a person who has a prior conviction for a felony 

drug offense and where death or serious bodily injury results from the 

use of that substance). Prior to Apprendi , it was the view of this Court 

that all S 841(b) findings were for the sentencing court rather than the 

jury. See, e.g., Chapple, 985 F.2d at 731. Under such a regime, it would 

have been reasonable to conclude that a defendant's "offense of 

conviction" included the jury's finding that the defendant had violated 

S 841(a) and the sentencing court's deter mination as to which of the 

S 841(b) factors were present. 

Such reasoning, however, is problematic after Apprendi, whose central 

teaching is that "[o]ther than the fact of a prior conviction, any fact 

that 

increases the penalty for a crime beyond the pr escribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable 

doubt." 530 U.S. at 466. The "prescribed statutory maximum" is the 

longest sentence that a defendant could receive based solely on the facts 

necessarily encompassed within the jury's ver dict of guilty. See, e.g., 

United States v. Williams, 235 F.3d 858, 863-64 (3d Cir. 2000). For 

example, if a jury finds a defendant guilty of"distribution of cocaine" 

without making a specific finding as to quantity or any other factors, 

then the "prescribed statutory maximum" is 20 years. Thus, to avoid 

rendering one of the most significant federal criminal statutes 

unconstitutional, many of our sister circuits have held that any fact that 

increases a defendant's sentence beyond that which would have been 

 21 
unspecified amount of heroin, specificallyfinding that he 

was over 18 years old and that he had conspir ed to

distribute heroin to persons under the age of 21. (Pr. App. 

51). Section 846 of Title 21 of the United States Code 

makes it unlawful to conspire to violate the federal drugs 

laws, and provides that those who do ar e subject to the 

same penalties as those who commit the underlying 

offenses. Absent a quantity finding, distribution of heroin 

generally carries a maximum sentence of 20 years in

prison. See 21 U.S.C. S 841(b)(1)(C). But 21 U.S.C. S 859(a) 

doubles all applicable penalties for persons over the age of 

18 who distribute narcotics to persons under the age of 21. 

Based solely on the jury's verdict, ther efore, Pressler's 

maximum sentence was 40 years--twelve years more than 

his ultimate sentence of 336 months. A defendant has no 

valid Apprendi claim where, as here, his ultimate sentence 

is less than that which would have been authorized by the 

jury's verdict. See United States v. W illiams, 235 F.3d 858, 

863 (3d Cir. 2000); see also id. at 862 ("Apprendi does not 

_________________________________________________________________ 

permissible absent that fact is an "element" of the S 841 "offense." See, 

e.g., United States v. Westmoreland, 240 F.3d 618, 632-33 (7th Cir. 2001) 

(citing cases). 

Though saving S 841 from unconstitutionality in many situations, this 

interpretation--in conjunction with the possible interpretation of 

"offense 

of conviction" outlined previously--may have consequences not intended 

by the Sentencing Commission. If the statutory interpretation embraced 

by our sister circuits is correct, thenS 841 describes not one, but many 

"crimes," and the "crime" for which Shr effler was convicted was 

conspiracy to distribute an unspecified amount of heroin by persons over 

18 to persons under 21. See 21 U.S.C. S 846; S 841(a); S 841(b)(1)(C); 

S 859(a). And if the interpretation of"offense of conviction" that we 

outlined above is right, then Shreffler's"offense of conviction" did not 

"establish" that "death or serious bodily injury resulted from the use of 

the" heroin that he conspired to distribute, and the District Court erred 

in finding that he was eligible for an enhanced Of fense Level pursuant 

to U.S.S.G. S 2D1.1(a)(2). We ar e cognizant that this potential result 

may 

be at odds with the intent of the Sentencing Commission, which, after 

all, wrote the Guidelines long before Apprendi altered the background 

legal landscape. We therefore call this matter to the attention of the 

Commission and suggest that this (and possibly other Guidelines 

provisions) may need to be redrafted in light of Apprendi. 

 22 
apply to . . . increase[s] . . . under the Sentencing 

Guidelines."). We will, therefor e, affirm Pressler's sentence. 

IV. 

The judgment of conviction in No. 00-2588 will be 

vacated, and the matter remanded to the District Court 

with instructions to enter a judgment of acquittal in favor 

of Defendant Scott Shreffler. The judgment of sentence in 

No. 00-1824 will be affirmed. The Clerk is directed to send 

this opinion to the Chair and Chief Counsel of the United 

States Sentencing Commission, calling their attention to 

footnote 7. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 23