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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-3303

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UNITED STATES OF AMERICA

v.

MALIK BLAND, a/k/a Easy,

 Malik Bland,

 Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-07-cr-00737-006

District Judge: The Honorable Eduardo C. Robreno

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 13, 2012

Before: SMITH, and CHAGARES, Circuit Judges

ROSENTHAL, District Judge*

(Filed: September 25, 2012)

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OPINION

_____________________ 

 *

The Honorable Lee H. Rosenthal, United States District Judge for the United States 

District Court for the Southern District of Texas, sitting by designation.
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SMITH, Circuit Judge.

A jury convicted Malik Bland of conspiring to possess with the intent to 

distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). The 

United States District Court for the Eastern District of Pennsylvania granted Bland 

a substantial downward variance from a guideline range of 292 to 365 months by 

imposing a sentence of 192 months of imprisonment. Bland appealed, challenging 

his conviction and sentence.1

I.

 Although we will affirm his conviction, we will 

vacate Bland’s sentence and remand this matter to the District Court. Specifically, 

we direct the District Court to conduct further proceedings as to the weight of 

crack cocaine for which Bland should be held responsible for sentencing purposes.

Bland sold crack cocaine in Philadelphia at the corner of 61st Street and 

Glenmore Avenue. Around the same time, a group led by Kareem Smith was

distributing cocaine and crack cocaine in parts of Philadelphia, Pennsylvania, and 

Cecil County, Maryland. Landrum Thompson worked for Smith, selling at the 

same street corner as Bland. In October of 2003, when one of Smith’s sellers in 

Maryland was arrested, Smith and Thompson approached Bland about selling for 

them in Maryland. Bland “wanted to make money hustling.” In his view, “[w]hat 

[he] was doing on the corner wasn’t cutting it.” Bland accepted the offer, and 
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advised Smith that he “was hungry.”

Within a week of being set up in Smith’s house in Maryland, Bland sold 

crack to an undercover officer. During that transaction, Bland gave the undercover 

officer a piece of paper in the event the undercover officer needed to contact 

Bland. The paper contained Bland’s name and cell number, as well as the names 

of Smith and Thompson. Several days later, the undercover officer called Bland’s 

number and asked to purchase more crack. Bland advised the undercover officer 

to come to his house, stating “my man is here.” After the transaction was 

completed, Bland was arrested. He was eventually convicted of violating 

Maryland law and was sentenced to ten years’ imprisonment. 

Bland was released from prison on January 31, 2006. At some point 

thereafter, Bland returned to selling crack with Thompson at the corner of 61st and

Glenmore Avenue.2

 On October 5, 2006, Bland was arrested and charged with 

possession with intent to deliver a controlled substance in violation of 

Pennsylvania law. He returned to jail, eventually pled guilty on January 23, 2007, 

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

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

2 The transcript contains the following exchange between the prosecutor and 

Thompson:

Q. When did [Bland] come and when did he stop, that is the question I’m 

asking.

A. I guess he stopped October [5, 2006, when he was arrested].

Q. In about October. And how long had he been out there at that point?

A. A couple months.
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and was sentenced to six to twenty-three months of imprisonment. 

Subsequently, a federal grand jury sitting in the Eastern District of 

Pennsylvania returned a second superseding indictment, charging Bland and eight

others with conspiring to distribute cocaine and crack cocaine. Bland and three of 

his co-defendants went to trial. A jury found each of them guilty of the conspiracy 

offense. Bland moved for a judgment of acquittal, challenging the sufficiency of 

the evidence. 

During a hearing on the motion, Bland asserted that he was an independent 

salesman and that there was no evidence to show that he was a member of the 

conspiracy. In addition, he argued that he should not be held responsible for the 

amount of crack sold by the conspiracy while he was incarcerated on the Maryland 

offense. When the District Court asked the government what connection Bland 

had to the conspiracy during his imprisonment, the AUSA replied: “None. During 

the period of time when he was incarcerated, he was not involved, I agree with that 

a hundred percent.” The Court inquired how Bland could be charged with being a 

member from 2002 to 2007. The AUSA replied: 

Because he was a member of the conspiracy in the early years, and as 

soon as he got out of jail he went right back to his role that he held 

before he went to jail as a seller for the same conspiracy that 

overlapped his incarceration. The conspiracy didn’t die when Mr. 

Bland left. He entered, and he was in and out, just like Mr. Smith was 

in and out during the course of the conspiracy. 

 
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The Court noted that Smith maintained a role while he was in prison, but that 

Bland was “not one of the brains behind this scheme.” The AUSA agreed Bland 

was not key to the operation and that Bland’s sporadic membership presented a 

sentencing issue. The AUSA further stated: “I agree that during the period of time 

he’s incarcerated, we can’t attribute anything to him.” In response to further 

questioning, the AUSA stated that “[t]here’s no evidence that [Bland] had contact 

with any member of the conspiracy during that period of time” he was in jail. 

Several days after the hearing, the District Court denied the motion for judgment of 

acquittal. 

On July 16, 2010, the District Court issued a memorandum, setting forth its 

findings as to each defendant’s involvement in the conspiracy and the quantity of 

drugs for which each defendant would be held liable for purposes of computing 

that defendant’s sentencing guideline range. Because “Bland never signified an 

intent to withdraw from the conspiracy (as he rejoined the . . . conspiracy 

immediately upon release from incarceration),” the Court concluded that he was 

“involved for the full three years” from October 20, 2003, through October 5, 2006 

(147 weeks). The Court determined that approximately 9 ounces, or 225 grams of 

crack, was sold during each week of the conspiracy. “Based on [Bland’s] role as a 

seller, incarceration due to his . . . activities, and the fact that drug quantities being 

distributed throughout his time in the conspiracy were ‘reasonably foreseeable,’” 
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the Court found that the Government “demonstrated by a preponderance of the 

evidence that Defendant Bland [was] responsible for accomplice attribution of the 

average weekly crack sales[,]” totaling 37.4 kilograms of crack. 

This quantity of crack cocaine resulted in a base offense level of 38, which 

was adjusted upwards by two levels to 40 because of a dangerous weapons 

enhancement. Bland’s total offense level and his criminal history category of I 

produced a guideline range of 292 to 365 months. 

At sentencing, Bland again challenged the quantification of crack for which 

he was responsible for sentencing purposes, emphasizing that he was involved for 

one week in 2003 before his arrest and for only “several months in ’06.” The 

Court rejected his argument. It explained that Bland had spent time in jail, but that 

“nearly as [he] went out the door [he] rejoined the conspiracy.” Reasoning that 

Bland was “kind of in inactive status” during his incarceration, the Court 

concluded that he had “never left the conspiracy.” As a result, Bland’s guideline 

range did not change. The Court granted a downward variance, imposing a 

sentence of 192 months of imprisonment. Bland filed a timely notice of appeal.

II.

Bland contends that the District Court erred by denying his motion for a 

judgment of acquittal because there was no evidence of his membership in the 

conspiracy at any point from 2002 through 2007. In reviewing a district court’s 
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denial of a Rule 29 motion, “we review the trial record in the light most favorable 

to the prosecution to determine whether any rational trier of fact could have found 

proof of guilt beyond a reasonable doubt based on the available evidence.” United 

States v. Claxton, 685 F.3d 300, 305 (3d Cir. 2012) (citation, internal quotation 

marks, and brackets omitted). The trial record demonstrates, and our brief factual 

recitation confirms, that there is no merit to Bland’s argument. He either was 

successfully recruited by Smith and Thompson or eagerly joined what he 

understood to be a drug organization operating in two states. 

III.

Bland asserts that, even if we conclude there was sufficient evidence to 

uphold his conviction, the District Court erred in its computation of the quantity of 

drugs attributable to him. “When reviewing the sentencing decisions of the district 

courts, we exercise plenary review over legal questions about the meaning of the 

sentencing guidelines, but apply the deferential clearly erroneous standard to 

factual determinations underlying their application.” United States v. Collado, 975 

F.2d 985, 990 (3d Cir. 1992) (citations, internal quotation marks, and brackets 

omitted). 

In Collado, we explained that “whether an individual defendant may be held 

accountable for amounts of drugs involved in reasonably foreseeable transactions 

conducted by co-conspirators depends upon the degree of the defendant’s 
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involvement in the conspiracy.” Id. at 995. We cautioned that “it is not enough to 

merely determine that the defendant’s criminal activity was substantial. Rather, a 

searching and individualized inquiry into the circumstances surrounding each 

defendant’s involvement in the conspiracy is critical to ensure that the defendant’s 

sentence accurately reflects his or her role.” Id. 

In United States v. Price, 13 F.3d 711, 732 (3d Cir. 1994), we addressed 

Price’s argument that he was inappropriately credited for cocaine dispensed by the 

conspiracy after he was imprisoned. We rejected “a per se rule that arrest 

automatically bars attribution to a defendant of drugs distributed after that date.” 

Id. Yet we agreed that “since ‘[t]he relevant conduct provision limits accomplice 

attribution to conduct committed in furtherance of the activity the defendant agreed 

to undertake,’ a defendant cannot be held responsible for conduct committed after 

he or she could no longer assist or monitor his or her co-conspirators.” Id. (quoting 

Collado, 975 F.2d at 997); see also United States v. Puig-Infante, 19 F.3d 929, 945 

(5th Cir. 1994) (observing that “[b]ecause a defendant’s incarceration is not an 

affirmative act on the part of a defendant, it cannot, by itself, constitute withdrawal 

or abandonment” from a conspiracy, but that “incarceration may still have had 

some effect on the foreseeability of the acts of his coconspirators” for sentencing 

purposes).

Here, the District Court rejected Bland’s argument that he should not be held 
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liable for the amount of drugs sold during his incarceration and until he rejoined 

the conspiracy at some point in 2006. It reasoned that Bland had not withdrawn 

from the conspiracy and that he immediately rejoined the conspiracy after his 

release. Whether Bland had withdrawn from the conspiracy, however, is not 

determinative of whether he should be held liable for sentencing purposes for the 

amount of drugs sold by his coconspirators during his incarceration and for that 

period of time following his release when he had yet to return to his role as a street 

seller. Rather, that determination must be based on his involvement in the 

conspiracy at the relevant period of time. Collado, 975 F.2d at 995. Although the 

District Court appropriately conducted an individualized inquiry for each 

defendant as Collado instructs, it did not focus on the circumstances surrounding 

Bland’s involvement during either his incarceration or the eight month period 

following his release. Id. 

Our review fails to reveal any evidence to support the District Court’s 

accomplice attribution during Bland’s incarceration. There is no evidence that 

Bland was involved in the conspiracy while in prison from October of 2003 until

January 31, 2006. In fact, during the March 5, 2010 hearing, the government 

acknowledged as much, stating that there was “no evidence that [Bland] had any 

contact with” his coconspirators during his incarceration. In the absence of some 

evidence that Bland had any involvement in the conspiracy during his
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incarceration, see Collado, 975 F.2d at 995, we conclude that the District Court 

erred by attributing to Bland the amount of drugs sold by the conspiracy for each 

week that he was in prison. 

Furthermore, the evidence indicates that Bland was released from prison on 

January 31, 2006 and then arrested on October 5, 2006. During that eight month 

period, the trial record establishes that Bland was involved in the conspiracy 

selling crack cocaine for only “a couple months” before his arrest. SA826. Yet the 

District Court, without explanation, held Bland liable for the entire eight months of 

drug activity following his release from prison. 

Accordingly, although we will affirm Bland’s conviction, we will vacate his 

sentence and remand this matter for further fact finding with regard to accomplice 

attribution when he was incarcerated and during the eight month period following 

his release from prison.