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. e du/thir dc ir c uit_2001/144Filed 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 PresslerANDREW 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 Distric t of Pennsylvania convicted Daniel Pressler and Scott Sh reffler of conspiracy to distribute heroin. While Pr essler appeals only his sentence, Shreffler challenges both his co nviction and sentence. Shreffler's appeal requir es us to an alyze the quality and quantity of evidence necessary to estab lish a conspiracy among individuals engaged in drug activi ty who are loosely associated.

Shreffler submits that the evidence was insufficien t 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 eem ent to work together toward that goal. The final factor--a n agreement between the defendant and some other pers on-- is the essence of the offense, and ther e is no les ser standard for proving an agreement in drug cases. Al though this and other courts have spoken of "factors" that tend to show the existence of a conspiracy, it is mor e acc urate to say that the presence of certain facts often pr ovi des

2circumstantial evidence of the underlying agr eemen t that is

itself necessary to make out a conspiracy case.

The evidence here showed that Shreffler obtained an d distributed a large amount of heroin. The Governmen t demonstrated that the main person from whom Shr eff ler obtained his heroin, Pedro "Pete" Caban, also distr ibuted the drug to many others, and that some of the peopl e 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 w ork 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 Cou rt's holding in United States v. Gibbs, 190 F .3d 188 (3 d 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 exis ted at all. As a result, much of the discussion in Gibbs i s simply inapposite. Because the Government never establishe d the existence of an agreement between Shreffler and som eone 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 Pennsyl vania, 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. F ederal investigators determined that the heroin was coming from Philadelphia, and that it was being imported by Lew istown residents who would drive to Philadelphia to purcha se heroin and then return to Lewistown to use and sell it.

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

Shreffler, and seven others for conspiring to viola te the federal drug laws in violation of 21 U.S.C. S 846. Section (b) of Count One of the indictment charged the defendan ts with conspiring to "[i]llegally possess with intent to distribute and illegally distribute, in violation o f 21 U.S.C. S 841(a)(1), HEROIN, a Schedule I contr olled subst ance 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. T he jury heard testimony from four of Pressler's and Shreffl er's former co-defendants, as well as eight other witnes ses. We provide the details of this testimony, infra at Par t II(B), in the context of discussing Shreffler's claim that th e evidence was insufficient to support his conviction. The cou rt instructed the jury that they were to decide whethe r the defendants had "engaged in a conspiracy to distribu te heroin," but, consistent with prevailing law at the time, did not ask the jury to determine the quantity of heroi n that the defendants had conspired to distribute. The jur y found Pressler and Shreffler guilty, and, via a special v erdict form, also found that "the Government ha[d] proven beyond a reasonable doubt that [Pressler and Shr effler], be ing 18 years or older, conspired to distribute heroin to p ersons under 21 years old."

The Probation Officer prepared Pr esentence Investi gation Reports (PSIs) for both Pressler and Shr effler. Pr essler lodged two objections, one of which is relevant her e. In P 14 of Pressler's PSI, the Probation Officer relayed th e contents of a statement in which Craig Bedleyon told investi gators that he had been hospitalized after overdosing on h eroin
obtained from Pressler. The Pr obation Officer reli ed on Bedleyon's statement in determining that Pr essler was eligible for an enhanced Offense Level of 38 pursua nt to U.S.S.G. S 2D1.1(a)(2), which applies "if the defen dant is convicted under 21 U.S.C. S 841(b)(1)(A), (b)(1)(B) , or (b)(1)(C) . . . and the offense of conviction estab lishes that death or serious bodily injury resulted fr om the u se of the substance." Pressler objected, claiming that his se ntence could not be enhanced based on Bedleyon's over dose

4because it had not been charged in the indictment a nd

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 hea rings, the court found that the Government had pr oved bey ond 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 el igible for the death or serious bodily injury enhancement, whi ch set
his base Offense Level at 38. Other enhancements ra ised Pressler's Offense Level to 43, and his Criminal Hi story 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 de cided to depart downward, noting that it found Pr essler to be "less culpable" than Shreffler. Stating that it had "a du ty to avoid unwarranted sentencing disparities" and characteriz ing Pressler's case as "present[ing] a circumstance out side of the heartland," the District Court sentenced Pr ess ler 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. Emplo ying a preponderance of the evidence standard, the court f ound that Shreffler had provided heroin to both Joseph S toner and Scott Knouse, that Stoner and Knouse had over d osed on heroin provided by Shreffler , and that each had suffered serious bodily injury as a result. The court also d etermined that Shreffler had distributed between 69 and 113 g rams of heroin. In response to these findings, the Probatio n Officer
revised Shreffler's PSI and concluded that he was e ligible for an enhanced Offense Level of 38 pursuant to U.S .S.G. S 2D1.1(a)(2). Two other enhancements gave Shr effl er an Offense Level of 42, and this, in conjunction with a Criminal History Category of V, left Shr effler wit h a sentencing range of 360 months to life. See U.S.S.G . Ch. 5 Pt. A. On August 23, 2000, the District Court sente nced

5Shreffler to 360 months imprisonment. Both Shreffle r and

Pressler filed timely appeals.1

II.

Shreffler's primary claim is that the evidence was insufficient to convict him of conspiring to distri bute heroin. In so arguing, he takes up "a very heavy bu rden." 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 S hreffler is appealing from a jury verdict against him, "[w]e must view the evidence in the light most favorable to th e 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 St ates v. Salmon, 944 F.2d 1106, 1113 (3d Cir . 1991)). The e lements of a charge of conspiracy are: (1) "a unity of purp ose between the alleged conspirators;" (2) "an intent t o achieve a common goal;" and (3) "an agreement to work toget her 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 wor k 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"fa ctors" that tend to show the existence of a conspiracy. Th ese "factors" are not direct proof that a conspiracy ex ists; rather, their presence serves as cir cumstantial ev idence of the underlying agreement that is itself necessary t o sustain

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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).

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

1008, 1010 (3d Cir. 1986) (stating that the existen ce of a conspiracy "can be `inferred from evidence of relat ed facts and circumstances from which it appears as a reason able and logical inference, that the activities of the p articipants . . . 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 co urts in recent years. In the typical drug conspiracy, there is a primary dealer who will often have a high-level con federate or, at least, one or more mid-level confederates. T he primary dealer will sell drugs personally and/or th r ough these confederates. These transactions may consist of small or moderately sized sales to end users, or of lar g e sales to individuals who then resell the drugs to those not under the direct or indirect control of the primary deale r. Accordingly, in many drug cases, the principal ques tion is whether the people who buy drugs from the primary d ealer or from his or her confederates have joined the und erlying conspiracy.

B.

There is no question that Shreffler distributed a s izeable
amount of heroin. Evidence at trial established at least nineteen named people to whom Shreffler pr ovided t he drug, most of them on numerous occasions and severa l 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 p ublic 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 a fter they had been discharged from drug rehabilitation progra ms.

7Shreffler obtained his heroin in Philadelphia. Nume rous

people accompanied him to buy heroin, and Shr effle r made the trip in cars belonging to at least three differ ent individuals.2 In Philadelphia, Shreffler would some times buy heroin from street dealers, though he would mos t 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. Sh reffler 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 t he street" by purchasing so much heroin from him. Shreffler to ld Aaron Forshey that Caban provided "a safe way to bu y heroin," because buying heroin fr om Caban at his h ouse obviated the need to purchase heroin fr om street d ealers. 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 he roin 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 travele d to Philadelphia to buy heroin also went without him, a nd some of them purchased heroin from Pedro Caban on t hose trips.

Numerous witnesses testified that her oin (includin g that sold by Caban and Shreffler) is packaged in a stand ardized 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 Philad elphia, and specifically referenced the testimony of James Walk er. Walker testified that he had driven Shreffler to Philadelphia on 5 o r 6 occasions, and stated that Pressler had given him heroin in exchan ge for a ride to Philadelphia, but never said the same thing about S hreffler. 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) (quot ing 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 offe red.

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

During the relevant time period, heroin sold for $1 0 per bag in Philadelphia and for $20 per bag in Lewistown, t hough a few witnesses testified that they were sometimes given volume discounts. Many of the Government's witnesse s described seeing Shreffler in possession of multipl e bundles
of heroin.

C.

We turn to the question whether the evidence was sufficient to convict Shreffler for conspiracy to v iolate the federal drug laws. Though Shreffler bought a large amount of heroin from Caban, and sold her oin to a large n umber of people, " `a conspiracy requir es an agreement to c ommit some other crime beyond the crime constituted by th e agreement itself.' " United States v. Gibbs, 190 F. 3d 188, 197 (3d Cir. 1999) (quoting United States v. Kozins ki, 16 F.3d 795, 808 (7th Cir. 1994)). In Shr effler's vie w, the evidence here simply does not show such an agr eeme nt.

1.

In both its Opening and Supplemental Briefs, the Government assumes that this case is gover ned by U nited States v. Gibbs, 190 F.3d 188 (3d Cir . 1999), and asserts that Gibbs mandates that we uphold Shr effler's con viction. The Government's argument, however , misses a criti cal
distinction between this case and Gibbs. In Gibbs t here was no question that a cocaine distribution ring headed by Terrence Gibbs and Darryl Coleman existed; the disp ute was whether Antjuan Sydnor (who had purchased large amounts of heroin from Gibbs) had agr eed to join t he 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 th e Government's burden of proof is higher where the ex istence of an underlying group is contested. Instead, we em phasize that certain types of circumstantial evidence becom e substantially more probative if it can be establish ed that a conspiracy existed and the only remaining question is whether the defendant was a part of it.

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

street-level drug dealer. If it is shown that an or ganized gang controls drug distribution in the defendant's neighborhood and that the gang has divided the neighborhood into zones in which only a single deal er may operate, then the fact that the defendant consisten tly sells his or her drugs only with certain geographical par ameters would provide evidence that the defendant both knew of the existence of the conspiracy and was a participant i n it. But were there no evidence of a larger conspiracy to co ntrol drug distribution, then the fact that the defendant did all of his or her sales in a given area would be essential ly irrelevant to the question whether the defendant wa s the member of a conspiracy.3

As a result, much of the language from Gibbs upon which the Government relies is inapposite. For exam ple, Gibbs acknowledged that " `even an occasional suppl ier (and by implication an occasional buyer for redistributi on) can be shown to be a member of the conspiracy by eviden ce, direct or inferential, of knowledge that she or he was part of a larger operation.' " Id. at 198 (quoting Unit ed States v. Price, 13 F.3d 711, 728 (3d Cir. 1994) and citing U nited States v. Theodoropoulos, 866 F.2d 587, 594 (3d Cir . 1989)) (emphasis added). Such a precept can per form analy tic work if it is clear that a drug conspiracy existed and the only question is whether the defendant was a part o f it, but it is singularly unhelpful where the question is wh ether a

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3. Illustrative of this point is United States v. P rice, 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 tha t the evidence was insufficient to convict him of conspiring to distri bute cocaine and heroin, arguing that it showed only that he was an"independ ent drug dealer
who associated with members of the JBM." Id. at 73 1. In explaining why we disagreed, we noted, inter alia, that Long had t wo significant social events (a wedding and a funeral) "at which many, al though not necessarily all, JBM members gathered." Id. Standin g alone, that Long attended a given wedding or funeral would do nothin g 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 eve nts for the members of the JBM, the fact that Long was present on those occasions provided
circumstantial evidence that he was a member of tha t organization.

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

was no independent evidence of an overarching consp iracy, that Shreffler knew that his seller sold drugs to o ther people or that some of his buyers did likewise pr o vides 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 we ll to the situation at bar. Gibbs stated that "the length of affiliation between the defendant and the conspirac y" was relevant to determining whether the defendant agree d to join it. Id. at 199 (emphasis added). W e explained that this factor is relevant because "when a defendant drug b uyer has repeated, familiar dealings with members of a conspiracy, that buyer probably comprehends fully t he nature of the group with whom he [or she] is dealin g, is more likely to depend heavily on the conspiracy as the sole source of his [or her] drugs, and is mor e likely t o perform drug-related acts for conspiracy members in an effo rt to maintain his [or her] connection to them." Id. at 1 99. This factor (and our explanation for it) assumes the exi stence of an underlying conspiracy; after all, it makes littl e sense to talk about the defendant's comprehension of the nat ure of the "group" with whom he or she is dealing unless i t has already been shown that there is an underlying grou p. The lack of an underlying (or overarching) conspiracy i s 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 (a nd, indeed, dispositive) evidence of the existence of a conspir acy, rather than as circumstantial evidence of the underlying agreement necessary to create a conspiracy in the f irst place. The Government claims that many of Shr effle r's buyers "were not simple purchasers of drugs from Sh reffler; they knew that Shreffler obtained his her oin from `Pete' because [they] accompanied Shreffler on[trips to] p urchase [ 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 th e holding of Gibbs then, they were conspirators with Shreffle r in the distribution of heroin . . . and he was a conspirat or with

each of them."

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

Sydnor (the buyer) had been aware that Gibbs (the s eller, who was unquestionably a member of a drug conspirac y) sold drugs to people other than himself, and emphas ized 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 peo ple was circumstantial evidence that Sydnor knew that G ibbs was part of a larger distribution ring, and the fac t that Gibbs was aware that Sydnor resold the drugs that h e got from Gibbs was circumstantial evidence that Sydnor was a part of that ring. See id. at 201. But the mere fac t that a defendant comprehends that a person from whom he or she buys drugs or to whom he or she sells drugs also se lls drugs to others is not itself sufficient pr oof tha t the defendant and the other person are conspirators. Ex cept for those who grow, harvest, or process contr olled sub stances themselves, all users and dealers get their drugs f r 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 po inted to numerous other significant pieces of evidence, w hich we set forth in the margin,4 that bore upon that quest ion, and ultimately held that all of the "evidence [was] suf ficient to support the conclusion that Sydnor intended to join the [Gibbs/Coleman] conspiracy and shared the conspirac y's goal of distributing cocaine for profit." Id. at 20 2-03. The fact that several of Shreffler's buyers knew that S hreffler often got his drugs from Caban and that they knew a bout 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

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4. The Government had surreptitiously recorded tele phone conversations between Sydnor, Gibbs, and another man. They reveal ed 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) Sydno r 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.

12the conclusion that Shreffler conspir ed with parti cular

individuals.

2.

We begin with Caban and the Forsheys, all of whom w ere named in the indictment. Both Aaron and Anthony For shey traveled with Shreffler to Philadelphia numer ous t imes to acquire heroin, but both also often went without hi m. The Forsheys originally purchased heroin fr om street d ealers, but Shreffler eventually introduced them to Caban, explaining that Caban offered a "safer" way to purc hase the drug. Shreffler bragged to the Forsheys that his pu rchases from Caban were so sizeable that they wer e respons ible for "taking [Pete] off the street" and allowing Caban t o sell heroin directly out of his house.

This evidence, says the Government, "was sufficient , at the very least, to establish an agreement between S hreffler and `Pete' to distribute heroin to the Forsheys." W e disagree. Had Shreffler promised to steer business Caban's way in exchange for a discount on his own pur chase s or for a share of Caban's profits, the two would unquestio nably have qualified as co-conspirators. Unfortunately fo r the Government, however, there was simply no evidence o f such an agreement. Instead, all that the evidence s howed was that Shreffler introduced the Forsheys to anoth er, superior source of supply from which Shr effler him self 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 whol esaler 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 pr ovides a superior source of supply. Y then begins to purchas e a great deal of soda from Z as well. Just as this evi dence, standing alone, would be insufficient to pr ove an agreement between X and Z to distribute soda to Y, the eviden ce in this case was not enough to support a conclusion th at Shreffler and Caban conspired to distribute heroin to the Forsheys. It is common for people to tell their fri ends about

13a good store or restaurant. Though the Government p roved

that Shreffler was a very good customer to Caban, t hat 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 conspi red with the Forsheys. The Government notes that "the eviden ce at trial established that the heroin [that Shr effler and the Forsheys] obtained from `Pete' was not solely for t heir own use but was sold and otherwise distributed by them to others." "Thus," submits the Government, "the Forsh eys admitted that they conspired with `Pete' and with S hreffler
to distribute heroin." The Government reads too muc h into this evidence--the fact that the Forsheys and Shr e ffler knew that they were involved in the same "business" (in this case, the distribution of heroin) and that the y obtained much of their supply from the same "distributor" (C aban) simply does not establish that they agreed to pool their
"efforts." We therefor e hold that there was insuff icient 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 res pect to
Charles "Chuckie" Stoner. Stoner and Shreffler trav eled to Philadelphia together to purchase heroin on several occasions, although each also frequently went witho ut the other. Shreffler was one of the people who introduc ed Stoner to Caban, and the latter later became a majo r source of supply for the former. Shreffler essentia lly lived with Stoner for "four or five months." During that time,
both Shreffler and Stoner sold heroin out of Stoner 's home,

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5. The Government's Brief also summarily alleges th at James Walker was a co-conspirator of Shreffler, but elaborates only that Walker bought
heroin from both Shreffler and Charles Stoner. In t he absence of stronger evidence than this, we conclude that the e vidence was insufficient to support a conclusion that Shreffler conspired with Walker.

14people would call "seven or eight" times a day abou t

purchasing heroin. Stoner obtained some of his hero in from Shreffler, and would sometimes sell heroin to those who came to his house looking for Shreffler when the la tter was not present.

This case is somewhat similar to United States v. P owell, 113 F.3d 464 (3d Cir. 1994), wher e we found the ev idence sufficient to support a jury's finding that James P owell had conspired with his brother Antonio Powell to distri bute
cocaine. In that case:

A witness testified that James and Antonio P owell lived together, that they both sold cocaine, that they shared plastic bags to package the cocaine, and tha t if one of the brothers ran out of cocaine to sell, the other brother would supply it. As noted, James Pow ell 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, An tonio Powell consulted James Powell before setting the sales price for cocaine[, and James Powell also se rved 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 othe rs. Like the Powells, Shreffler and Stoner lived together fo r several months, and both of them sold drugs out of their sh ared residence on a daily basis. And there was evidence that Stoner would sometimes supply drugs to customers wh en Shreffler was not available to do so. But, standing alone, all that this evidence proved was that Shreffler and St oner were drug dealers who lived together for a time; it would not, in our view, be enough to show the existence o f an agreement between them.

Moreoever, in Powell ther e was a great deal of evi dence that the brothers had pooled their efforts, but non e of the types of evidence that existed in that case ar e pr esent here. First, as noted above, James Powell acted as a look out when Antonio Powell conducted drug sales, and that fact

15alone may well have been enough to show the existen ce 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 commo n goal (to sell drugs without being caught) and an agr eem ent to work together toward that goal (because one does no t serve as a lookout without agreeing to do so). In this ca se, 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 ac tivities. 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 activit ies, which implied the presence of an underlying agr eem ent.
There was no such evidence here.

Also lacking here are the sort of facts that we fou nd sufficient to support the conviction in Gibbs . In Gibbs, there was evidence that Sydnor (the buyer) had offer ed t o 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 a n economic stake in the other's continued success. Se e id. Lastly, Gibbs and Sydnor conducted their business i n code, which demonstrated a considerable degree of coordin ation and suggested the presence of a cooperative r elati onship. See id. at 200-02. The Shreffler/Stoner r elationsh ip 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 "woul d sell for Scott when Scott wasn't around." Although the q uestion is quite close in light of the jury's verdict and o ur resultant standard of review, we conclude that this evidence is not strong enough to support Shreffler's conviction.

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

question "Tell us how you were intr oduced to [Char les Stoner]." Walker's full answer r eads: "I went to h is house, and I bought a bag of heroin from him. He would sel l for Scott when Scott wasn't around." The next question was: "How do you know he was selling for Scott Shr effle r?" Walker got as far as saying "Because he told me tha t --" before being interrupted by an objection. The objec tion was first sustained, though it was eventually overruled after a colloquy between the court and counsel for both sid es. 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 te stimony then turned to a discussion of his dealings with Sc ott
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" Walke r meant that he thought that Stoner sold heroin on behalf o f
Shreffler rather than in lieu of Shr effler when th e latter was
not around the house. But even if this is the corre ct reading of Walker's statement, the r ecord contains no way to determine the basis of his belief. W alker start ed to address that issue, but was interrupted by an objec tion and the prosecutor never returned to it. The only infor mation
we have that bears on the basis for Walker's belief is his response to the next question put to him, when he s aid: "I
went there and he was out of heroin. He said he'd h ave to call Scott to get some more. So he was getting it f rom Scott
to sell." If Walker's belief that Stoner was sellin g "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 a n agreement between Shreffler and Stoner for the reas ons stated above. If Walker's belief was based on somet hing else, then there is nothing in the recor d to expla in or justify
Walker's inchoate conclusion.

We must, of course, view the evidence as a whole an d in the light most favorable to the Government; moreove r, we

17must make all reasonable inferences in its favor. S ee United

States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997) . But it is also the case that, even after doing that, the q uestion remains whether a reasonable jury couldfind that th e 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 prepon derance of the evidence, this is a criminal case and the Go vernment had a much higher burden to surmount. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (hold ing that a court considering a motion for summary judgment m ust take into account the standard of proof that would apply at trial, and specifically drawing an analogy to situa tions where courts consider motions for acquittal in crim inal 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 no t enough to support a conclusion beyond a reasonable doubt that Shreffler and Stoner were confederates who agr eed to work together as opposed to two drug dealers who sh ared
the same house for a time.

For a reason that escapes us, the Gover nment did n ot charge Shreffler with distribution of heroin--a cri me for
which the evidence at trial was more than sufficien t to convict, and for which he could have received the s entence challenged here.6 Instead, it opted to indict and t ry him only for conspiracy to distribute heroin. But a con spiracy 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 parod y a familiar literary allusion, a conspiracy is a consp iracy is a conspiracy. Because the Government never demonstrat ed the existence of an agreement between Shr effler an d at least one other person, we will set aside Shr effle r's

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6. We express no opinion as to whether the Governme nt may re-indict
Shreffler for distribution.

18conviction 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)

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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 over doses instead of submitting the issue to the jury; and (3) err ed in determining the
amount of heroin attributable to him and in determi ning that he had provided the heroin resulting in the Krouse and Sto ner overdoses. In light of our holding that there was insufficient ev idence 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 Of fense 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 convictio n 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 conv iction), then

Shreffler would have needed to be resentenced to a substantially shorter term of imprisonment because the highest Of fense L evel for which he could otherwise be eligible would be 32. The ef for t to determine the proper meaning of "offense of conviction" in the co ntext of drug cases illustrates a potentially serious problem with rega rd to the drafting of

the Guidelines in the wake of Apprendi. Although we nee d not decide this
claim because of our decision to vacate Shreffler's conviction, we identify the problem for the benefit of the Sentencing Commi ssion 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 th e facts underlying the specific criminal offense for which the defendant w as convicted. Application Note 1(l) to S 1B1.1 states that" `[o]f fense' means the

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

19unless a different meaning is specified or is other wise 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 def endant's "Offense Conduct" is determined by examining

all acts and omissions committed, aided, abe tted, counseled, commanded, induced, procured, or willfully c aused by the defendant; and in the case of a jointly unde rtaken criminal activity . . . [includes] all reasonably for eseeable acts and omissions of others in furtherance of the jointly underta ken criminal activity,

that occurred during the commission of the of fen se of conviction, in preparation for that offense, or in the cour se of attempting to
avoid detection or responsibility for that of fens e.

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 th e offense of conviction,
and seems to indicate that "offense of conviction" includes only the facts undergirding the specific offense for which the def endant was convicted, whereas "Relevant Conduct" includes other , uncharg ed and related
activities.

Additional support for our narrower reading of "off ense of conviction" comes from U.S.S.G. S 1B1.2(a) (Applicable Guidelin e), which instructs sentencing courts to begin by "determin[ing] the of fense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the offense conduct charged in the indictmen t or information of
which the defendant was convicted)." (emphasis added). Al so relevant is the amendment history of S 3A1.1(a) (Hate Crime Motivat ion of Individual Victim). In the past, that Section pr ovided for a three step Offense

Level enhancement "[i]f the finder of fact . . . determin es . . . that the defendant intentionally selected any victim . . . a s the object of the offense because of actual or perceived race, color, religion, national origin, ethnicity, gender, disability or sexual ori entation." U.S.S.G. S 3A1.1(a), historical notes, 1997 amendments, avai lable in Westlaw (emphasis added). In 1997, however, the operative l anguage was changed to require that the defendant select the victim "as the object of the offense of conviction." Id. (emphasis added). "Cons istent with Congress' intent to punish a defendant whose primary objectiv e in committing a hate crime was to harm a member of a particular cla ss of individuals," the Sentencing Commission explained that the amendm ent was necessary to clarify "that the enhancement in subse ction (a) is limited to
the victim of the defendant's offense of conviction ." (emphasis added).

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

was arrived at in part as a result of sentencing fi ndings made by the District Court. He is incorrect.

The jury convicted Pressler of conspiracy to distri bute an

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This history supports our view that "offense of con viction" includes only the substantive crime for which a particular defend ant was convicted.

If we are correct, then the critical inquiry involv es identifying the
substantive crime for which the defendant was convi cted. But Apprendi makes answering that question difficult in many dru g cases. Before Apprendi, the consensus view was that 21 U.S.C. S 8 41 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 Se ction makes it illegal to, inter alia, "knowingly or intentionally . . . m anufacture, distribute,

or dispense . . . a controlled substance." Section S 8 41(b) then lists an enormous range of variables that operate to cr eate sentencing exposures ranging from "not more than one year" to a mandator y life sentence. Compare 21 U.S.C. S 841(b)(3) (distribution of a Sc hedule 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 co nviction for a felony drug offense and where death or serious bodily inju ry 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 su ch a regime, it would

have been reasonable to conclude that a defendant's "offense of conviction" included the jury's finding that the de fendant 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 Appre ndi, 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 esc ribed statutory maximum must be submitted to a jury, and proved bey ond a reasonable doubt." 530 U.S. at 466. The "prescribed statutory maximum" is the longest sentence that a defendant could receive bas ed 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"dist ribution 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 crimi nal statutes unconstitutional, many of our sister circuits have held that any fact that increases a defendant's sentence beyond that which would have been

21unspecified amount of heroin, specificallyfinding t hat 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 C ode makes it unlawful to conspire to violate the federa l drugs laws, and provides that those who do ar e subject t o the same penalties as those who commit the underlying offenses. Absent a quantity finding, distribution o f 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 t he age of 18 who distribute narcotics to persons under the ag e of 21. Based solely on the jury's verdict, ther efore, Pre ssler's maximum sentence was 40 years--twelve years more th an his ultimate sentence of 336 months. A defendant ha s no valid Apprendi claim where, as here, his ultimate s entence
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

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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 man y situations, this interpretation--in conjunction with the possible in terpretation of

"offense of conviction" outlined previously--may have conseq uences not intended by the Sentencing Commission. If the statutory inte rpretation embraced by our sister circuits is correct, thenS 841 descri bes not one, but many "crimes," and the "crime" for which Shr effler was convicted was conspiracy to distribute an unspecified amount of h eroin 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 c onviction" that we outlined above is right, then Shreffler's"offense o f conviction" did not "establish" that "death or serious bodily injury re sulted from the use of the" heroin that he conspired to distribute, and th e 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 t his potential result

may be at odds with the intent of the Sentencing Commis sion, which, after all, wrote the Guidelines long before Apprendi alte red the background legal landscape. We therefore call this matter to t he attention of the Commission and suggest that this (and possibly othe r Guidelines provisions) may need to be redrafted in light of Ap prendi.

22apply to . . . increase[s] . . . under the Sentenci ng

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 Co urt with instructions to enter a judgment of acquittal in favor of Defendant Scott Shreffler. The judgment of sente nce 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 attenti on to
footnote 7.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

23