## 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, Washing ton, for the appellant. David A. Kubichek, Assistant United States Attorney(David D. Freudenthal, United States Attorney with him on the brief), Dist rict 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 fi rst impression, whether a sentencing court, when determining the applicable sentencing range for an- 2 -

individual convicted of conspiracy to distribute an d possess with intent to distribute controlled substances, can, under the Un ited States Sentencing Guidelines and 21 U.S.C. § 841(b), include in its q uantity calculations drugs possessed for personal consumption. Exercising jur isdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we hold that dr ugs possessed for personal consumption cannot be considered when determining the statutory sentencing range pursuant to 21 U.S.C. § 841(b), but such drug s can be considered when determining the sentencing range under the more exp ansive 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 adrug treatment program and began speaking in school drug prevention programs. The day before her trial was scheduled to begin, As ch changed her plea to guilty. It was a “cold” plea—there was no plea agr eement with the government.- 3 -

At the change-of-plea hearing, the district court e xpressed considerable concern that Asch did not fully appreciate the very real po ssibility 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 enga ged in lengthy conversations with both defense counsel and Asch, the import of w hich 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 q uantity of drugs that should be used to determine the appropriate sentenc ing 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-c onspirator who testified pursuant to a plea agreement. In a proffer made atthe time of that plea agreement, Counts stated that he delivered approxim ately 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 1 997 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 suppl ying Asch, he testified his- 4 -

deliveries generally were between one and two ounce s, 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 t hat story, alleging her prior statements were made under duress. Instead, she te stified that she began her dealings with Counts in June 1997, at which time sh e obtained one-eighth-ounce quantities, most of which she and her husband consu med themselves. After a few weeks, she began receiving one-fourth-ounce deliver ies 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 q uantity she ever received from Counts was two ounces, on three occasions, of whichshe consumed half and sold half. Asch ceased receiving drugs from Counts in m id-November. Towards the end of that period, she was using methamphetamine m ultiple times a day. The final fact witness at the sentencing hearing wa s Regina Smith, another co-conspirator who also testified pursuant to a ple a agreement. Smith testified that in August or September 1996, she began purchas ing one-fourth to one-half grams of methamphetamine from Asch and eventually w as purchasing one-eighth-1 One ounce is equivalent to approximately 28.35 gr ams. - 5 - 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 199 7. The government also introduced ledgers seized from Asch’s home that purportedly demonstrate she was dealing multiple-ounce quantities from late 1996 th rough October 1997. The district court characterized Asch’s testimony at the sentencing hearing as “very troubling.” (X R. at 46.) It relied inst ead 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 wi th Counts’s minimum estimate of 963.9 grams. 1 The court concluded “[j]ust looking at Counts’ testimony, it stretches credulity to believe that i t was under 1,000 grams.” (X R. at 45.) Based on this quantity, the district courtsentenced 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. Co ngress subsequently amended this section to reduce the threshold quanti ty to 500 grams. See Methamphetamine Trafficking Penalty Enhancement Actof 1998, Pub. L. No. 105-277, § 2(a), 112 Stat. 2681 (1998). The provis ion 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 app lication of more onerous state sentencing guidelines to criminal conduct that occu rred prior to the effective date of the change). - 6 - § 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 se ntencing purposes because the calculation was not supported by the facts, the cou rt failed to compensate for drugs consumed by the defendant, and the court incl uded quantities not involved in the offense of conviction.
II A district court has a duty to ensure that a defend ant’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); United3 Asch does not raise an ineffective assistance of counsel claim, but has

preserved that issue for purposes of a petition forwrit 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 co unsel claims should be brought in collateral proceedings, not on direct appeal.”). - 7 - States v. Gomez-Cuevas , 917 F.2d 1521, 1524 (10th Cir. 1990)). Asch alle ges her plea was not knowing, intelligent, and voluntary be cause she did not appreciate the full extent of the punishment she was facing. Specifically, she argues her counsel advised her that a substantial downward dep arture 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 n otes, 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. H e had a lengthy discussion with defense counsel to ascertain whether counsel had ap propriately advised Asch of the risk of incarceration, emphasizing that from hi s perspective a mandatory minimum of ten years was “probably more a fact” tha n a “worse case scenario.” (VII R. at 6.) He then had a lengthy discussion wi th Asch, during which he told her that in “all likelihood . . . you’ll be going t o serve a term of incarceration,” (VII R. at 39), carefully discussed the potential applicable sentencing ranges as- 8 -

set forth in the Guidelines, emphasized the possibl e application of a statutory mandatory minimum, and even went so far as to tell her he seldom departs downward from the applicable Guidelines range. Farfrom being erroneous, the district court’s efforts to ensure that Asch’s pleawas knowing, intelligent, and voluntary were exemplary.
III Asch argues the district court committed three erro rs when calculating the drug quantity for purposes of determining the appro priate 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 c alculations for quantities of drugs she herself had consumed; and (3) it improperly inc luded in its calculations quantities of drugs collateral to the offense of co nviction. A district court’s findings as to drug quantity are reviewed for clearerror. 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 no t clearly erroneous. The court determined that Asch’s statement to the polic e when she was arrested was more credible than her testimony at the sentencing hearing and that her earlier- 9 -

statement was corroborated by Counts’s testimony atthe hearing. This court is loath to second-guess a district court’s determinat ion 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 individ ual 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 conclusionthat Asch received from Counts an average of two ounces (57.7 grams) of methamphet amine every two weeks for eight months and on occasion received larger quanti ties. The quantity of methamphetamine in these transactions totals at lea st 1000 grams.
B Simply by virtue of the fact that Asch handled at l east 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 dr ugs possessing the proper relation to the offense of conviction. Asch argues that quantities of methamphetamine she consumed did not possess the pr oper relation as required by- 10 -

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 Guideline s permit a court to consider all “relevant conduct” when determining the base offens e 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 relev ant conduct . . . are limited to their designed role in Guideline-range calculations and do not affect the independent determination of the statutory sentenci ng 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 t o the defendant’s role in a conspiracy is determined by reference to “all act s and omissions committed, aided, abetted, counseled, commanded, induced, proc ured, or willfully caused by the defendant; and . . . all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal acti vity.” 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 dis tribute controlled substances4 Many circuits that have addressed this question d efine relevant conduct (continued...) - 11 - “is accountable for all quantities of contraband wi th which he was directly involved and . . . all reasonably foreseeable quant ities of contraband that were within the scope of the criminal activity that he j ointly 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 not e to be an authoritative interpretation of the Guidelines). This Circuit ha s 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 thatwhere a member of a conspiracy to distribute drugs handles drugs both f or personal consumption and distribution in the course of the conspiracy, the e ntire quantity of drugs handled is relevant conduct for purposes of calculating the ba se 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 State s 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 dru gs possessed for personal use were relevant to offenses of manufacturing, possess ing with intent to distribute, and conspiring to manufacture and possess with inte nt 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 sa me 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 groupi ng of counts would be required under § 3D1.2(d) had the defendant been co nvicted 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 w ith 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 incl uded offense of possession could be grouped with convictions for conspiracy to distribute and aiding and abetting distribution). Therefore, we apply the de finition 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 h eld that a sentencing court could consider drugs possessed for personal consump tion when calculating the base offense level pursuant to the Sentencing Guide lines where the offenses of conviction were manufacturing controlled substances , possessing with intent to distribute controlled substances, maintaining a pla ce for the purpose of manufacturing, distributing, and conspiring to comm it 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 pursuantto U.S.S.G. §§ 1B1.3(a)(2) and 3D1.2(d), and because the intended use of the c ontrolled substance is irrelevant to the crime of manufacturing, manufactu red drugs possessed for personal use could be included when calculating the defendant’s base offense level. See id. at 920. Thus, the holding in Woodnecessarily depends on the nature of the offense of manufacturing, an offense for which Asch was not convicted. - 12 - proper interpretation of the broad Guidelines conce pt of “relevant conduct,” as demonstrated by the facts of this case. 5 Counts fronted Asch substantial quantities of methamphetamine, at least a portion o f 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 thatshe was “directly involved” with6 We need not decide whether our result would be di fferent if the offense

of conviction was distribution or possession with i ntent 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 pe rsonal 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). - 13 - 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 t he defendant by the government in a reverse sting could be included as relevant co nduct for purposes of the Sentencing Guidelines, despite the fact that the dr ugs were never distributed to the public, because the defendant agreed to and int ended to distribute the drugs). Therefore, Asch’s consumption of methamphetamine ob tained from Counts was conduct relevant to their conspiracy for purposes o f calculating her sentence under the Sentencing Guidelines. 6 2. Quantity of Drugs Involved in the Offense Under 2 1 U.S.C. § 841(b) The scope of conduct that can be taken into conside ration when determining the appropriate statutory sentencing ra nge is narrower than the relevant conduct appropriate to a sentencing determ ination under the Guidelines. Our recent decision in Santos , 195 F.3d at 552, holds that “the operative drug quantities in the mandatory sentencing provisions o f § 841(b) . . . are exclusively a function of the quantities involved in the offens e of conviction.” We made7One 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 a n individual convicted of conspiracy to distribute is liable, under § 841(b), for all amounts handled by other conspirators that are with in 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 individ uals, let alone evidence that such amounts were within the scope of the conspirac y for which Asch was convicted. - 14 - clear that, unlike in the Guidelines context, drug quantities collateral to the underlying § 841(a) violation are not relevant to d eterminations 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 wh ether drugs possessed for personal use are involved in the offense of conspir acy to distribute and possess with intent to distribute a controlled substance fo r 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 o n 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 genera lly does not share the distribution objective and thus would notbe part of a8 Asch argues that the sentencing court should excl ude both the quantities

she obtained for personal consumption and the quant ities she obtained for her (continued...) - 15 - 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 fo r 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 distrib ution and possession with intent to distribute can be inferre d 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 n ot readily apparent: Counts’s objective may have been to distribute drugs but Asc h’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 c onviction 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 drug s 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 purpos e of supplying her husband were involved in the offense for sentencing purpose s. - 16 - The framework of the governing statute compels this conclusion. Section 846 provides that any person who conspires to distr ibute or possess with intent to distribute drugs “shall be subject to the same pena lties 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 t his circuit has not ruled on the question of whether drugs possessed for personal co nsumption can be included when determining the appropriate statutory sentenci ng range for someone convicted of distribution or possession with intentto 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 o r intended to distribute the drugs she personally consumed, the proportionality embodied in the statute9 While a defendant’s statutory sentencing range al so 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 supranote 7. - 17 - requires that these quantities be excluded when det ermining the applicable sentencing range. The government must prove the quantity of drugs inv olved in the offense of conviction “by a preponderance of the evidence at s entencing 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 Unite d States v. Underwood , 982 F.2d 426, 429 (10th Cir. 1992)). Under that standard, only those quantities of drugs that the government proves by apreponderance 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 co nspiracy to distribute and possess with intent to distribute drugs involved mu ltiple 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 drug s the defendant obtained from her co-conspirator during the course of the conspir acy 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”). Furthe rmore, we hold that a defendant must produce evidence tending to demonstrate that s he always intended to personally consume some specific portion of the dru gs 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, wi thout holding, that “when the defendant buys drugs both f or his own consumption and for resale, he has some burden of producing evidenc e 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 c onsumption of specific quantities would be probative of such an intent. A lthough the defendant bears the burden of producing evidence of her intent to consu me, we emphasize that the ultimate burden of proof on the quantity of drugs i nvolved 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 obt ained with the intent to distribute, despite her testimony that she consumed approximately half of those drugs. On remand, it should make this finding in a ccordance with the burden of production and proof established above.- 19 - C Asch also argues that the district court improperlyincluded in its sentencing calculations drugs she handled prior to her involvement in the conspiracy to which she pleaded guilty. Pursuant t o Santos , a sentencing court is not permitted to take into account quantities of dr ugs collateral to the offense of conviction when determining the applicable sentenci ng range under § 841(b). See
Santos , 195 F.3d at 551-52. Asch pleaded guilty to conspiring with Counts and o ther 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 th e 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 h ave sold a bare – a mere 37 grams in – in the remainder of her tran sactions over 3 1⁄2 years prior to her involvement with Counts which do esn’t make any sense. But forget that. Just looking at Counts’ t estimony, it stretches credulity to believe that it was under 1,000 grams.

. . . In the judgment of this judge, the United States ha s established overwhelmingly that there was 1,000 grams of drugs involved in this transaction. Counts’ low estimate is only slightlyhigher 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 y ears? 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 notrely 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 ran ge. On remand, the district court should take notice of the fact that only drug s involved in the offense of conviction may be taken into account when determini ng the applicable statutory sentencing range under § 841(b).
IV
We AFFIRM Asch’s conviction, but REVERSE and REMAND for resentencing consistent with this opinion.