F I L E D

United States Court of Appeals

Tenth Circuit

MAR 29 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANDREA ASCH,

Defendant - Appellant.

No. 99-8005

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. 98-CR-3-13-D)

Maynard D. Grant, Grant & Newcomb, Seattle, Washington, for the appellant.

David A. Kubichek, Assistant United States Attorney (David D. Freudenthal,

United States Attorney with him on the brief), District of Wyoming, Casper,

Wyoming, for the appellee.

Before LUCERO, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and

MURPHY, Circuit Judge.

LUCERO, Circuit Judge.

This case requires us to address, as a matter of first impression, whether a

sentencing court, when determining the applicable sentencing range for an
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individual convicted of conspiracy to distribute and possess with intent to

distribute controlled substances, can, under the United States Sentencing

Guidelines and 21 U.S.C. § 841(b), include in its quantity calculations drugs

possessed for personal consumption. Exercising jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742, we hold that drugs possessed for personal

consumption cannot be considered when determining the statutory sentencing

range pursuant to 21 U.S.C. § 841(b), but such drugs can be considered when

determining the sentencing range under the more expansive Sentencing

Guidelines. We further hold that appellant Andrea Asch’s guilty plea was

knowing and voluntary. Accordingly, we remand for resentencing consistent with

this opinion.

I

An eleven-count indictment, naming fifteen people, charged Asch with one

count of conspiring to distribute and conspiring to possess with intent to

distribute methamphetamine from approximately June 1, 1996, to approximately

February 4, 1998, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Asch initially

pleaded not guilty. Pending trial, she completed a drug treatment program and

began speaking in school drug prevention programs. 

The day before her trial was scheduled to begin, Asch changed her plea to

guilty. It was a “cold” plea—there was no plea agreement with the government. 
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At the change-of-plea hearing, the district court expressed considerable concern

that Asch did not fully appreciate the very real possibility that she would be

sentenced to a mandatory minimum term of ten years in prison if the

government’s allegations concerning the quantity of drugs were supported by the

evidence at the sentencing hearing. The judge engaged in lengthy conversations

with both defense counsel and Asch, the import of which was to ensure she

understood the likely degree of punishment awaiting her. Ultimately, the district

court accepted her guilty plea.

The sentencing hearing focused on evidence of the quantity of drugs that

should be used to determine the appropriate sentencing range under the statute, 21

U.S.C. § 841(b), and the Sentencing Guidelines, U.S.S.G. § 2D1.1. The

government’s primary witness was Wes Counts, a co-conspirator who testified

pursuant to a plea agreement. In a proffer made at the time of that plea

agreement, Counts stated that he delivered approximately two ounces of

methamphetamine to Asch every week from May 1997 to January 1998. At the

sentencing hearing, Counts’s story changed to some degree. He testified he

delivered methamphetamine to Asch weekly from May 1997 to approximately

November or December 1998; he made no deliveries during a period of at least

four weeks; his deliveries were irregular; and his deliveries were never more

frequent than weekly. During the time he was supplying Asch, he testified his
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deliveries generally were between one and two ounces, though on one occasion he

delivered eight ounces and on one or two occasions he delivered four ounces. All

of these amounts were rough estimates.

Asch also offered two different versions of these transactions. At the time

of her arrest, she told police she had received between two and four ounces of

methamphetamine per month from Counts beginning in May 1997 and continuing

until January 1998. At sentencing, Asch recanted that story, alleging her prior

statements were made under duress. Instead, she testified that she began her

dealings with Counts in June 1997, at which time she obtained one-eighth-ounce

quantities, most of which she and her husband consumed themselves. After a few

weeks, she began receiving one-fourth-ounce deliveries approximately twice a

month, half of which she and her husband consumed themselves and half of which

she sold. She further testified that the largest quantity she ever received from

Counts was two ounces, on three occasions, of which she consumed half and sold

half. Asch ceased receiving drugs from Counts in mid-November. Towards the

end of that period, she was using methamphetamine multiple times a day.

The final fact witness at the sentencing hearing was Regina Smith, another

co-conspirator who also testified pursuant to a plea agreement. Smith testified

that in August or September 1996, she began purchasing one-fourth to one-half

grams of methamphetamine from Asch and eventually was purchasing one-eighth-
1

 One ounce is equivalent to approximately 28.35 grams.

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ounce quantities four or five times a week. On one or two occasions she

purchased one-fourth of an ounce from Asch. Smith stopped purchasing from

Asch some time between March 27, 1997, and June 1997. The government also

introduced ledgers seized from Asch’s home that purportedly demonstrate she was

dealing multiple-ounce quantities from late 1996 through October 1997. 

The district court characterized Asch’s testimony at the sentencing hearing

as “very troubling.” (X R. at 46.) It relied instead on her earlier statement to

police. Assuming that Asch dealt with Counts over a period of eight months, the

court found this statement supported an estimate of a minimum of 453.6 grams

and a maximum of 907.2 grams, which corresponded with Counts’s minimum

estimate of 963.9 grams. 1

 The court concluded “[j]ust looking at Counts’

testimony, it stretches credulity to believe that it was under 1,000 grams.” (X R.

at 45.) Based on this quantity, the district court sentenced Asch to the statutory

minimum penalty of 120 months imprisonment, see 21 U.S.C.
2

 At the time of Asch’s offense, 21 U.S.C. § 841(b)(1)(A)(viii) mandated a

sentence of at least 10 years for a violation of § 841(a) involving one kilogram or

more of a substance containing methamphetamine. Congress subsequently

amended this section to reduce the threshold quantity to 500 grams. See

Methamphetamine Trafficking Penalty Enhancement Act of 1998, Pub. L. No.

105-277, § 2(a), 112 Stat. 2681 (1998). The provision in effect at the time of the

offenses applies in this case. See Miller v. Florida, 482 U.S. 423, 430-33 (1987)

(holding that the Ex Post Facto Clause bars the application of more onerous state

sentencing guidelines to criminal conduct that occurred prior to the effective date

of the change).

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§ 841(b)(1)(A)(viii), 2 a term which also fell within the applicable range set forth

in the Sentencing Guidelines. 

On appeal, Asch claims the district court erred by accepting her guilty plea

because it was not knowing and voluntary. She also contends the district court

erred when calculating the quantity of drugs for sentencing purposes because the

calculation was not supported by the facts, the court failed to compensate for

drugs consumed by the defendant, and the court included quantities not involved

in the offense of conviction.

II

A district court has a duty to ensure that a defendant’s guilty plea is truly

voluntary. See Fed. R. Crim. P. 11(d); United States v. Gigot , 147 F.3d 1193,

1197 (10th Cir. 1998). “[W]hether the defendant’s plea was knowing, intelligent,

and voluntary is a question of law we review de novo.” Gigot , 147 F.3d at 1197

(citing United States v. Browning , 61 F.3d 752, 753 (10th Cir. 1995); United
3

 Asch does not raise an ineffective assistance of counsel claim, but has

preserved that issue for purposes of a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2255. See United States v. Galloway, 56 F.3d 1239, 1240 (10th

Cir. 1995) (en banc) (“Ineffective assistance of counsel claims should be brought

in collateral proceedings, not on direct appeal.”). 

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States v. Gomez-Cuevas , 917 F.2d 1521, 1524 (10th Cir. 1990)). Asch alleges her

plea was not knowing, intelligent, and voluntary because she did not appreciate

the full extent of the punishment she was facing. Specifically, she argues her

counsel advised her that a substantial downward departure from the prescribed

sentencing range was possible, and her perspective was tainted by her personal

transformation since being arrested. 3

The record belies this argument. As Asch herself notes, the district court

was “admirably cautious in its adherence to Rule 11’s requirements . . . .” 

(Appellant’s Br. at 24.) The sentencing judge was deeply concerned that Asch

was in a state of denial regarding her predicament and for that reason took

substantial steps to rectify any misconceptions. He had a lengthy discussion with

defense counsel to ascertain whether counsel had appropriately advised Asch of

the risk of incarceration, emphasizing that from his perspective a mandatory

minimum of ten years was “probably more a fact” than a “worse case scenario.” 

(VII R. at 6.) He then had a lengthy discussion with Asch, during which he told

her that in “all likelihood . . . you’ll be going to serve a term of incarceration,”

(VII R. at 39), carefully discussed the potential applicable sentencing ranges as
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set forth in the Guidelines, emphasized the possible application of a statutory

mandatory minimum, and even went so far as to tell her he seldom departs

downward from the applicable Guidelines range. Far from being erroneous, the

district court’s efforts to ensure that Asch’s plea was knowing, intelligent, and

voluntary were exemplary. 

III

Asch argues the district court committed three errors when calculating the

drug quantity for purposes of determining the appropriate sentencing range

pursuant to the Sentencing Guidelines and 21 U.S.C. § 841(b): (1) its findings

lack factual support; (2) it failed to adjust its calculations for quantities of drugs

she herself had consumed; and (3) it improperly included in its calculations

quantities of drugs collateral to the offense of conviction. A district court’s

findings as to drug quantity are reviewed for clear error. See United States v.

Wacker, 72 F.3d 1453, 1477 (10th Cir. 1995). However, we review de novo a

district court’s interpretation and application of a statute or the Guidelines. See

United States v. Myers, 106 F.3d 936, 941 (10th Cir. 1997).

A

The district court’s findings as to quantity are not clearly erroneous. The

court determined that Asch’s statement to the police when she was arrested was

more credible than her testimony at the sentencing hearing and that her earlier
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statement was corroborated by Counts’s testimony at the hearing. This court is

loath to second-guess a district court’s determination of a witness’s credibility,

see Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (holding that a trial

court’s decision to credit testimony of one individual over another is “virtually

never” clear error), and we see no reason to do so here. The government

demonstrated that Asch committed perjury during an earlier court appearance, and

the district court found that more instructive than the defense’s claim that Asch

was under duress when she made her initial statement to the police. Her initial

statement, Counts’s testimony, and the drug ledgers are more than sufficient

evidence to support the district court’s conclusion that Asch received from Counts

an average of two ounces (57.7 grams) of methamphetamine every two weeks for

eight months and on occasion received larger quantities. The quantity of

methamphetamine in these transactions totals at least 1000 grams.

B

Simply by virtue of the fact that Asch handled at least 1000 grams of

methamphetamine, however, the sentencing court was not necessarily permitted to

include that entire quantity in its calculation of her sentence. Rather, a sentencing

court can only include in its calculations those drugs possessing the proper

relation to the offense of conviction. Asch argues that quantities of

methamphetamine she consumed did not possess the proper relation as required by
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either the Guidelines, U.S.S.G. §§ 1B1.3 and 2D1.1, or the statute, 21

U.S.C. § 841(b).

Our analyses of this question in the context of the Sentencing Guidelines

and 21 U.S.C. § 841(b) are distinct. The Guidelines permit a court to consider all

“relevant conduct” when determining the base offense level for someone

convicted of an offense involving drugs. See U.S.S.G. §§ 1B1.3, 2D1.1. As we

recently made clear in United States v. Santos, 195 F.3d 549, 551 (10th Cir.

1999), however, “Guideline constructs such as relevant conduct . . . are limited to

their designed role in Guideline-range calculations and do not affect the

independent determination of the statutory sentencing directives.” Under a plain

reading of § 841(b), “the statutory directives are exclusively a function of the

quantities involved in the offense of conviction.” Id. at 552.

1. Relevant Conduct Under the Guidelines

Under the Guidelines, whether conduct is relevant to the defendant’s role in

a conspiracy is determined by reference to “all acts and omissions committed,

aided, abetted, counseled, commanded, induced, procured, or willfully caused by

the defendant; and . . . all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.” U.S.S.G.

§§ 1B1.3(a)(1)(A), 1B1.3(a)(1)(B). The commentary to U.S.S.G. § 1B1.3

elaborates: A person convicted of conspiracy to distribute controlled substances
4

 Many circuits that have addressed this question define relevant conduct

(continued...)

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“is accountable for all quantities of contraband with which he was directly

involved and . . . all reasonably foreseeable quantities of contraband that were

within the scope of the criminal activity that he jointly undertook.” U.S.S.G.

§ 1B1.3 comment. (n. 2); see also United States v. Morales, 108 F.3d 1213, 1226

n.11 (10th Cir. 1997) (holding that application note to be an authoritative

interpretation of the Guidelines). This Circuit has construed broadly the meaning

of relevant conduct. See, e.g., United States v. Hankins, 127 F.3d 932, 934 (10th

Cir. 1997); United States v. Johnson, 977 F.2d 1360, 1383 (10th Cir. 1992).

Every circuit to address the question has held that where a member of a

conspiracy to distribute drugs handles drugs both for personal consumption and

distribution in the course of the conspiracy, the entire quantity of drugs handled is

relevant conduct for purposes of calculating the base offense level pursuant to the

Guidelines. See United States v. Fregoso, 60 F.3d 1314, 1328-29 (8th Cir. 1995);

United States v. Snook, 60 F.3d 394, 395-96 (7th Cir. 1995); United States v.

Innamorati, 996 F.2d 456, 492 (1st Cir. 1993); cf. United States v. Antonietti, 86

F.3d 206, 209-10 (11th Cir. 1996) (holding that drugs possessed for personal use

were relevant to offenses of manufacturing, possessing with intent to distribute,

and conspiring to manufacture and possess with intent to distribute, without

recognizing the distinctions among these offenses).4

 We conclude that this is the
(...continued)

as all acts and omissions “that were part of the same course of conduct or

common scheme or plan as the offense of conviction,” U.S.S.G. § 1B1.3(a)(2). 

See, e.g., Antonietti, 86 F.3d at 209; Snook, 60 F.3d at 395-96. That definition,

however, only applies to “offenses for which grouping of counts would be

required under § 3D1.2(d) had the defendant been convicted of multiple counts.” 

U.S.S.G. § 1B1.3, comment. (n.3). Under § 3D1.2(d), grouping of conspiracy to

possess with conspiracy to distribute or possess with intent to distribute is

specifically prohibited. But cf. United States v. Barela, 973 F.2d 852 (10th Cir.

1992) (holding that a conviction on the lesser included offense of possession

could be grouped with convictions for conspiracy to distribute and aiding and

abetting distribution). Therefore, we apply the definition of relevant conduct

found at U.S.S.G. § 1B1.3(a)(1) and the commentary thereto.

5

 This court addressed a similar but distinct issue in United States v.

Wood, 57 F.3d 913 (10th Cir. 1995). In that case, we held that a sentencing court

could consider drugs possessed for personal consumption when calculating the

base offense level pursuant to the Sentencing Guidelines where the offenses of

conviction were manufacturing controlled substances, possessing with intent to

distribute controlled substances, maintaining a place for the purpose of

manufacturing, distributing, and conspiring to commit the above offenses. See id.

at 915. We reasoned that, because the quantity of drugs involved in each of these

crimes had to be aggregated for sentencing pursuant to U.S.S.G. §§ 1B1.3(a)(2)

and 3D1.2(d), and because the intended use of the controlled substance is

irrelevant to the crime of manufacturing, manufactured drugs possessed for

personal use could be included when calculating the defendant’s base offense

level. See id. at 920. Thus, the holding in Wood necessarily depends on the

nature of the offense of manufacturing, an offense for which Asch was not

convicted.

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proper interpretation of the broad Guidelines concept of “relevant conduct,” as

demonstrated by the facts of this case.5

 Counts fronted Asch substantial

quantities of methamphetamine, at least a portion of which she sold in order to

satisfy her debt to him. That she apparently chose to consume a substantial

portion of the balance does not alter the fact that she was “directly involved” with
6

 We need not decide whether our result would be different if the offense

of conviction was distribution or possession with intent to distribute instead of

conspiracy to commit those offenses. See United States v. Wyss, 147 F.3d 631,

632 (7th Cir. 1998) (holding that drugs used for personal consumption are not

relevant to the crime of possession with intent to distribute); United States v.

Kipp, 10 F.3d 1463, 1465-66 (9th Cir. 1993) (same).

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the entire quantity of contraband she obtained from her co-conspirator, Counts. 

U.S.S.G. § 1B1.3 comment. (n. 2); cf. United States v. Bara, 13 F.3d 1418, 1420

(10th Cir. 1994) (holding that drugs delivered to the defendant by the government

in a reverse sting could be included as relevant conduct for purposes of the

Sentencing Guidelines, despite the fact that the drugs were never distributed to

the public, because the defendant agreed to and intended to distribute the drugs). 

Therefore, Asch’s consumption of methamphetamine obtained from Counts was

conduct relevant to their conspiracy for purposes of calculating her sentence

under the Sentencing Guidelines.6

2. Quantity of Drugs Involved in the Offense Under 21 U.S.C. § 841(b)

The scope of conduct that can be taken into consideration when

determining the appropriate statutory sentencing range is narrower than the

relevant conduct appropriate to a sentencing determination under the Guidelines. 

Our recent decision in Santos, 195 F.3d at 552, holds that “the operative drug

quantities in the mandatory sentencing provisions of § 841(b) . . . are exclusively

a function of the quantities involved in the offense of conviction.” We made
7

 One of our cases approaches, but does not address, this question. United

States v. Arias-Santos, 39 F.3d 1070, 1078 (10th Cir. 1994), holds that an

individual convicted of conspiracy to distribute is liable, under § 841(b), for all

amounts handled by other conspirators that are within the scope of the agreement

and reasonably foreseeable to the defendant. This standard is inapplicable to this

case: It is specifically concerned with a conspirator’s liability for the actions of

co-conspirators, and there is little or no evidence in the record relating to amounts

of drugs distributed by Counts to any other individuals, let alone evidence that

such amounts were within the scope of the conspiracy for which Asch was

convicted. 

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clear that, unlike in the Guidelines context, drug quantities collateral to the

underlying § 841(a) violation are not relevant to determinations of the statutory

sentencing range pursuant to § 841(b). See id. at 551. Neither this Circuit, nor

any other circuit, has addressed the question of whether drugs possessed for

personal use are involved in the offense of conspiracy to distribute and possess

with intent to distribute a controlled substance for statutory sentencing purposes.7

A conspiracy involves a common purpose or objective between at least two

people to commit an unlawful act. See United States v. Evans, 970 F.2d 663, 669

(10th Cir. 1992). 

The objective of the conspiracy becomes especially important when

the government attempts to establish a conspiracy on the basis of

purchases and sales. Evidence that an intermediate distributor

bought from a supplier might be sufficient to link that buyer to a

conspiracy to distribute drugs because both buyer and seller share the

distribution objective. However, a consumer generally does not

share the distribution objective and thus would not be part of a
8

 Asch argues that the sentencing court should exclude both the quantities

she obtained for personal consumption and the quantities she obtained for her

(continued...)

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conspiracy to distribute crack cocaine. Of course, a consumer may

conspire to possess crack cocaine.

Id. Asch pleaded guilty to entering into a conspiracy with Counts with the shared

objective of distributing and possessing with intent to distribute

methamphetamine. In providing the factual basis for that plea, she testified that

Counts fronted her drugs, which she either sold or consumed herself. The

objective of the conspiracy was thus established on the basis of purchases and

sales. See Evans, 970 F.2d at 669. The common objective of distribution and

possession with intent to distribute can be inferred to the extent Counts fronted

Asch drugs, she redistributed them, and she then satisfied her debt to Counts with

the proceeds. With respect to drugs that Asch used for personal consumption, by

contrast, the common objective of distribution is not readily apparent: Counts’s

objective may have been to distribute drugs but Asch’s objective may have been

to feed her powerful addiction. See id. (concluding that “a consumer generally

does not share the distribution objective”). Drugs handled by Asch in

transactions, or components of a transaction, that lacked the common objective of

distribution were not involved in the offenses of conviction and cannot be

included when determining the applicable sentencing range under 21 U.S.C.

§ 841(b). See Santos, 195 F.3d at 552.8
(...continued)

husband’s consumption. Because the sharing of drugs constitutes distribution, see

Fregoso, 60 F.3d at 1325; United States v. Washington, 41 F.3d 917, 919 (4th Cir.

1994), those quantities she obtained for the purpose of supplying her husband

were involved in the offense for sentencing purposes.

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The framework of the governing statute compels this conclusion. Section

846 provides that any person who conspires to distribute or possess with intent to

distribute drugs “shall be subject to the same penalties as those prescribed for the

offense, the commission of which was the object of the . . . conspiracy.” 21

U.S.C. § 846. The object of the instant conspiracy was to distribute and possess

with intent to distribute methamphetamine. While this circuit has not ruled on the

question of whether drugs possessed for personal consumption can be included

when determining the appropriate statutory sentencing range for someone

convicted of distribution or possession with intent to distribute, one circuit has

done so. See United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1494-95 (9th

Cir. 1994). In Rodriguez-Sanchez, the Ninth Circuit held that personally

consumed drugs cannot be included, reasoning that § 841(b) is intended to

“punish distributors more harshly than consumers of drugs and to make sentence

[sic] proportional to the amount of harm to society represented by the quantity of

drugs to be distributed.” Id. at 1496. We concur with this characterization of the

statute’s intent. Absent evidence Asch agreed to or intended to distribute the

drugs she personally consumed, the proportionality embodied in the statute
9

 While a defendant’s statutory sentencing range also may be based on

quantities of drugs handled by co-conspirators in the scope of the conspiracy

which are reasonably foreseeable to the defendant, no such evidence was

presented in this case. See supra note 7.

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requires that these quantities be excluded when determining the applicable

sentencing range. 

The government must prove the quantity of drugs involved in the offense of

conviction “by a preponderance of the evidence at sentencing in order to trigger

the mandatory minimum sentences prescribed in 21 U.S.C. § 841(b).” United

States v. Silvers, 84 F.3d 1317, 1320 (10th Cir. 1996) (citing United States v.

Underwood, 982 F.2d 426, 429 (10th Cir. 1992)). Under that standard, only those

quantities of drugs that the government proves by a preponderance of the

evidence Asch obtained from Counts with the intent to distribute could be

included when determining the statutory sentencing range.9 Such a burden might

appear unduly onerous when, as in this case, the conspiracy to distribute and

possess with intent to distribute drugs involved multiple transactions over an

extended period of time. The district court in its role as fact finder, however, is

permitted to infer that the entire quantity of drugs the defendant obtained from

her co-conspirator during the course of the conspiracy to distribute, as proven by

the government by a preponderance of the evidence, was obtained with the

common objective of distribution. Cf. Wingfield v. Massie, 122 F.3d 1329, 1333
- 18 -

(10th Cir. 1997) (holding that “a jury is permitted to draw inferences of subjective

intent from a defendant’s objective acts”). Furthermore, we hold that a defendant

must produce evidence tending to demonstrate that she always intended to

personally consume some specific portion of the drugs received from her coconspirator in order to place at issue the absence of a common objective. Cf.

United States v. Wyss, 147 F.3d 631, 633 (7th Cir. 1998) (suggesting, without

holding, that “when the defendant buys drugs both for his own consumption and

for resale, he has some burden of producing evidence concerning the amount that

he consumed—he cannot just say to the government, ‘I’m an addict, so prove how

much of the cocaine that I bought I kept for my own use rather than to resell’”). 

Evidence, including personal testimony, of actual consumption of specific

quantities would be probative of such an intent. Although the defendant bears the

burden of producing evidence of her intent to consume, we emphasize that the

ultimate burden of proof on the quantity of drugs involved in the offense remains

with the government at all times.

At sentencing, the district court did not determine whether the entire

quantity of drugs Asch obtained from Counts was obtained with the intent to

distribute, despite her testimony that she consumed approximately half of those

drugs. On remand, it should make this finding in accordance with the burden of

production and proof established above.
- 19 -

C

Asch also argues that the district court improperly included in its

sentencing calculations drugs she handled prior to her involvement in the

conspiracy to which she pleaded guilty. Pursuant to Santos, a sentencing court is

not permitted to take into account quantities of drugs collateral to the offense of

conviction when determining the applicable sentencing range under § 841(b). See

Santos, 195 F.3d at 551-52. 

Asch pleaded guilty to conspiring with Counts and other named individuals

to distribute and possess with intent to distribute methamphetamine between

approximately June 1, 1996, and February 4, 1998. In making its findings at

sentencing, the district court stated that using the low end of Counts’s estimate,

Asch had obtained 963.9 grams between May 1997 and January 1998. It

continued: 

To reach the statutory minimum, she would have to have sold a bare

– a mere 37 grams in – in the remainder of her transactions over 3 1⁄2

years prior to her involvement with Counts which doesn’t make any

sense. But forget that. Just looking at Counts’ testimony, it stretches

credulity to believe that it was under 1,000 grams.

. . .

In the judgment of this judge, the United States has established

overwhelmingly that there was 1,000 grams of drugs involved in this

transaction. Counts’ low estimate is only slightly higher than this

witness’ own estimate which she doesn’t accept now but which was

testimony before the Court, Exhibit 3, less than 60 grams difference,
- 20 -

and that discounts anything to Lee of an ounce and a half. That’s all

it would have to be. Over three – over that many years? Doesn’t

make any sense at all. 

(X R. at 45-56.)

Based on these statements, it appears the district court, in calculating

Asch’s sentence, considered, but ultimately did not rely on, quantities of drugs

she obtained from an individual named Lee as early as January 1994. This

conduct was collateral to the offense of conviction and therefore irrelevant when

determining the applicable statutory sentencing range. On remand, the district

court should take notice of the fact that only drugs involved in the offense of

conviction may be taken into account when determining the applicable statutory

sentencing range under § 841(b). 

IV

We AFFIRM Asch’s conviction, but REVERSE and REMAND for

resentencing consistent with this opinion.