1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-3-1994

United States v. Fields

Precedential or Non-Precedential:

Docket 94-3078

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Recommended Citation

"United States v. Fields" (1994). 1994 Decisions. Paper 176.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

Nos. 94-3078 and 94-3081 

____________ 

UNITED STATES OF AMERICA, 

Appellee 

v. 

DAVID FIELDS, 

Appellant 

____________________ 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. Criminal No. 92-00183) 

____________________ 

Argued: September 13, 1994 

Before: BECKER and ALITO, Circuit Judges, and 

BRODY, District Judge* 

(Opinion Filed: November 3, 1994) 

 ____________________ 

 

 MARY R. PORTIS, ESQ. (Argued) 

 PORTIS & ASSOCIATES 

 One Bigelow Square 

 Twentieth Floor 

 Pittsburgh, PA 15219 

 Attorney for Appellant

 FREDERICK W. THIEMAN 

 United States Attorney 

 

______________________ 

* The Honorable Anita B. Brody, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation. 
 BONNIE R. SCHLUETER (Argued) 

 Assistant United States Attorney 

 633 U.S. Post Office and Courthouse 

 Pittsburgh, PA 15219 

 Attorneys for Appellee

 ____________________ 

 OPINION OF THE COURT 

 ____________________ 

ALITO, Circuit Judge: 

 David Fields has appealed his conviction and sentence 

for violations of the federal drug laws. He argues that his 

indictment should have been dismissed under the Speedy Trial Act, 

18 U.S.C. § 3161 et seq., and that the district court erred in 

calculating his sentence. We affirm the defendant's conviction, 

but we vacate his sentence and remand for resentencing pursuant 

to United States v. Rodriguez, 975 F.2d 999 (3d Cir. 1992). 

 

I. 

 On September 17, 1992, the defendant was indicted in 

the Western District of Pennsylvania for (count one) possession, 

with the intent to distribute, of less than 100 grams of heroin, 

in violation of 21 U.S.C. § 841(a)(1); (count two) possession, 

with intent to distribute, of less than 100 grams of heroin 

within 1000 feet of a public school or playground, in violation 

of 21 U.S.C. § 860(a); and (count three) use of a person under 18 
years of age to deliver heroin, in violation of 21 U.S.C. § 

861(a)(1). On September 25, the defendant was taken before a 

magistrate judge in Pittsburgh for an initial appearance. On 

October 6, the defendant's attorney moved for an extension of the 

time for filing pretrial motions under the local rules, and on 

October 7 the district court granted an extension until October 

24, which was a Saturday (thus making those motions due on 

Monday, October 26). The order granting the extension stated: 

 IT IS FURTHER ORDERED that the extended 

time period within which defendant may file 

pretrial motions be excluded under Title 18 

U.S.C. § 3161(h)(8)(A), since the court finds 

that the additional period is necessary to 

enable counsel for the defendant adequately 

to investigate and prepare pretrial motions.1

 A change of plea hearing was subsequently requested, 

and because the judge to whom the case had initially been 

assigned was involved in a trial in Erie, another judge agreed to 

preside at that hearing on December 10. Due to a severe 

snowstorm, however, the case agent was unable to attend the 

hearing in Pittsburgh on that date, and the case was then listed 

for disposition, by trial or the entry of a guilty plea, on 

December 16. 

 

1. Since the district court's intent appears to have been to 

exclude the time from the granting of the extension until the 

date when pretrial motions were actually due, we interpret the 

exclusion to extend until October 26. Accordingly, once this 

time was excluded, the Speedy Trial Act deadline for the 

commencement of the trial became December 22, 1992. 
 On December 16, the defendant and his attorney 

requested a 30-day continuance so that plea negotiations could 

continue. After engaging in an extensive colloquy with counsel 

and after questioning the defendant personally, the district 

court judge granted a continuance pursuant to 18 U.S.C. § 

3161(h)(8)(A)2 and made the following findings: 

 I think that the ends of justice will be 

served by taking this action, and those ends 

outweigh the best interests of the public and 

the defendant in a speedy trial; and the 

reason is that this gives the government an 

opportunity to get more information 

concerning the drug trade. It gives the 

defendant an opportunity to furnish more 

information. This is not only to the benefit 

of the defendant, but might benefit the 

government, and, therefore, we will grant the 

motion. 

 Eventually, the plea negotiations broke down. Although 

the defendant expressed a willingness to plead guilty to counts 

one and two, he refused to plead guilty to count three. The 

defendant's attorney then moved to dismiss the indictment under 

the Speedy Trial Act, but that motion was denied, and trial on 

all counts began on January 20, 1993. 

 At trial, the prosecution introduced evidence that the 

defendant had arranged to meet an informant for the purpose of 

selling him heroin and that this meeting had occurred within a 

short distance of a playground where children were playing. The 

 

2. We interpret the district court's order as excluding the 30 

days beginning with the previous deadline for the commencement of 

the trial. 
prosecution's evidence also showed that at this meeting the 

informant had given the defendant $200 and that the defendant had 

instructed a young man or boy to hand over a package of heroin to 

the informant. The tape recording of the conversation between 

the defendant and the informant revealed that the defendant had 

introduced the young man or boy as his nephew Jason, and the 

prosecution introduced evidence that the defendant's fiancee had 

a nephew named Jason who was 16 years old at the time of the 

offense. 

 The defendant testified and admitted that he had 

participated in the transaction and that it had occurred within 

1000 feet of a playground. He insisted, however, that his 

accomplice was not his nephew Jason but a different person, who 

was 18 years old at the time of the offense. The jury found the 

defendant guilty on counts one and two but not guilty on count 

three. After denying reconsideration of the defendant's motion 

to dismiss the indictment under the Speedy Trial Act, the 

district court sentenced the defendant to 41 months' 

imprisonment. This appeal followed. 

II. 

 The defendant first argues that he was not brought to 

trial within 70 days from his initial appearance, as required by 

the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). The defendant 

contends that the district court's contrary holding was incorrect 
primarily because (a) the district court erroneously excluded the 

period from October 6, 1992, when the defendant's attorney moved 

for an extension of time to file pretrial motions, until October 

26, 1992, when those motions were due, and (b) the district court 

incorrectly excluded the period of delay resulting from the 

continuance that was sought by the defense for the purpose of 

pursuing plea negotiations. As previously noted, the district 

court excluded both of these periods under 18 U.S.C. § 

3161(h)(8)(A), which requires the exclusion of 

 [a]ny period of delay resulting from a 

continuance granted by any judge on his own 

motion or at the request of the defendant or 

his counsel or at the request of the attorney 

for the Government if the judge granted such 

continuance on the basis of his findings that 

the ends of justice served by taking such 

action outweigh the best interest of the 

public and the defendant in a speedy trial. 

No such period of delay resulting from a 

continuance granted by the court in 

accordance with this paragraph shall be 

excludable under this subsection unless the 

court sets forth, in the record of the case, 

either orally or in writing, its reasons for 

finding that the ends of justice served by 

the granting of such continuance outweigh the 

best interests of the public and the 

defendant in a speedy trial. 

 The defendant's arguments are disturbing because he 

would have us order the dismissal of his indictment based on 

continuances that his own attorney sought. As we warned in 

United States v. Lattany, 982 F.2d 866, 883 (3d Cir. 1992), cert. 

denied, 114 S. Ct. 97 (1993), "[d]efendants cannot be wholly free 

to abuse the system by requesting (h)(8) continuances and then 
argue that their convictions should be vacated because the 

continuances they acquiesced in were granted." See also, e.g., 

United States v. Culp, 7 F.3d 613, 617 (7th Cir. 1993), cert. 

denied, 114 S. Ct. 2108 (1994); United States v. Kucik, 909 F.2d 

206, 210-211 (7th Cir. 1990), cert. denied, 498 U.S. 1070 (1991). 

Rejection of the defendant's arguments might be justified on this 

ground alone, but in any event a straightforward application of 

the provisions of the Speedy Trial Act leads to the same 

conclusion. 

 A. 1. We turn first to the exclusion of the period 

from October 6, 1992, when the district court granted the defense 

motion for an extension of time to file pretrial motions, until 

October 26, 1992, when those motions were due. The defendant 

contends that this period could not properly be excluded under 18 

U.S.C. § 3161(h)(8)(A) because the district court did not comply 

with the procedural requirement that it "set[] forth, in the 

record of the case, either orally or in writing, its reasons for 

finding that the ends of justice served by the granting of [the] 

continuance outweigh[ed] the best interests of the public and the 

defendant in a speedy trial." 18 U.S.C. § 3161 (h)(8)(A). We do 

not agree. 

 In granting the extension, the court stated that it 

"[found] that the additional period [was] necessary to enable 

counsel for the defendant adequately to investigate and prepare 

pretrial motions." A9. Moreover, in denying the defendant's 
motion to reconsider his motion for dismissal of the indictment, 

the district court elaborated that defense counsel "needed time 

to decide what to do, to examine the tape recording for example, 

or to investigate the birthdate of the alleged minor and perhaps 

try to suppress both." A5. We have held that the statement of 

reasons required by 18 U.S.C. § 3161(h)(8)(A) need not be placed 

on the record at the time when the continuance is granted. 

United States v. Brooks, 697 F.2d 517, 522 (3d Cir. 1982), cert. 

denied, 460 U.S. 1073 (1983). See also United States v. Lattany, 

982 F.2d at 877; United States v. Brenna, 878 F.2d 117, 122 (3d 

Cir. 1989); United States v. Rivera Construction Co., 863 F.2d 

293, 297 (3d Cir. 1988). Consequently, the explanation provided 

by the district court in denying reconsideration may also be 

properly considered. Viewing the order granting the continuance 

and the order denying reconsideration together, we are convinced 

that the district court provided a sufficient statement of 

reasons to satisfy 18 U.S.C. 3161(h)(8)(A). 

 While acknowledging our prior holdings that the 

requisite statement of reasons need not be made when the 

continuance is granted, the defendant contends that the 

explanation given by the district court in denying 

reconsideration cannot properly be taken into account under 18 

U.S.C. § 3161(h)(8)(A) because this explanation may not 

correspond with the actual reasons for granting the continuance. 

See Appellant's Br. at 29. However, we see no factual support 
for this argument in the record. In granting the continuance, 

the court expressly relied on 18 U.S.C. § 3161(h)(8) and stated 

that defense counsel needed more time to investigate and prepare 

pretrial motions. In denying reconsideration, the court 

mentioned some of the avenues of investigation that defense 

counsel might have wished to pursue. Thus, the reason for the 

finding -- that defense counsel's need to explore possible 

pretrial motions outweighed the countervailing speedy trial 

interests -- remained the same throughout. 

 2. The defendant next suggests that, even if the 

district court made the finding required by 18 U.S.C. § 

3161(h)(8)(A), that finding was wrong because defense counsel's 

need for extra time to work on possible pretrial motions did not 

outweigh the interests that would have been served by a speedier 

trial. Characterizing this case as one involving a "non-complex, 

single drug transaction," Appellant's Br. at 29, the defendant 

suggests that his attorney should have been able to investigate 

and prepare any pretrial motions without the need for an 

extension. We reject this argument as well. 

 First, we hold that in appropriate circumstances an 

"ends of justice" continuance under 18 U.S.C. § 3161(h)(8)(A) may 

be granted to permit the preparation of pretrial motions.3 In 

 

3. Courts of Appeals have disagreed on whether delay 

attributable to the preparation of pretrial motions is excludable 

under the general language of 18 U.S.C. § 3161(h)(1), which 

applies to periods of delay "resulting from other proceedings 

concerning the defendant." Many circuits have held such delays 

excludable. See United States v. Hoslett, 998 F.2d 648, 654-57 
determining whether to grant an "ends of justice" continuance, a 

court is required to consider the following factors: 

 (ii) Whether the case is so unusual or 

so complex, due to the number of defendants, 

the nature of the prosecution, or the 

existence of novel questions of fact or law, 

that it is unreasonable to expect adequate 

preparation for pretrial proceedings or for 

the trial itself within the time limits 

established by this section. . . . 

 (iv) Whether the failure to grant such 

a continuance in a case which, taken as a 

whole, is not so unusual or so complex as to 

fall within clause (ii), would deny the 

defendant reasonable time to obtain counsel, 

would unreasonably deny the defendant or the 

Government continuity of counsel, or would 

deny counsel for the defendant or the 

attorney for the Government the reasonable 

time necessary for effective preparation, 

taking into account the exercise of due 

diligence. 

18 U.S.C. § 3161(h)(8)(B)(ii) and (iv) (emphasis added). Because 

subsection (ii) refers expressly to "preparation for pretrial 

proceedings," it seems plain that an "ends of justice" 

continuance may be granted for the purpose of giving counsel 

additional time to prepare motions in "unusual" or "complex" 

(..continued) 

(9th Cir. 1993); United States v. Barnes, 909 F.2d 1059, 1064-65 

(7th Cir. 1990); United States v. Mobile Materials, Inc., 871 

F.2d 902, 913-14 (10th Cir. 1989) (per curiam), opinion 

supplemented on rehearing, 881 F.2d 866 (10th Cir. 1989), cert. 

denied, 493 U.S. 1043 (1990); United States v. Wilson, 835 F.2d 

1440, 1444-45 (D.C. Cir. 1987); United States v. Montoya, 827 

F.2d 143, 153 (7th Cir. 1987); United States v. Jodoin, 672 F.2d 

232, 238 (1st Cir. 1982). The Sixth Circuit, however, disagrees. 

See United States v. Moran, 998 F.2d 1368, 1370-71 (6th Cir. 

1993). In light of our holding with respect to 18 U.S.C. § 

3161(h)(8), we need not address this issue. 
cases. Moreover, we conclude that a continuance for the 

preparation of pretrial motions is also permissible under some 

circumstances in cases that are not "unusual or complex." 

Subsection (iv) makes it clear that a continuance "necessary for 

effective preparation" is allowed in such cases,4 and we think it 

is natural to interpret the phrase "effective preparation" in 

subsection (iv) as having the same meaning as the longer phrase -

- "adequate preparation for pretrial proceedings or for the trial 

itself" -- in subsection (ii). Consequently, whether or not a 

case is "unusual" or "complex," an "ends of justice" continuance 

may in appropriate circumstances be granted in order to provide 

adequate time for the preparation of pretrial motions. 

 Second, we see no basis for reversing the district 

court's conclusion that such a continuance was appropriate in 

this case. "Our inquiry is limited to the question whether the 

district court abused its discretion in granting this 

continuance," Brooks, 697 F.2d at 522, and we hold that it did 

not. 

 3. The defendant's final argument regarding the 

exclusion of the period covered by the extension of time for the 

preparation of pretrial motions is based on Rule 12.1(B) of the 

 

4. See United States v. Dota, F.3d. (9th Cir. 

1994) ("An ends-of-justice continuance may be justified on 

grounds that one side needs more time to prepare for trial[,] 18 

U.S.C. § 3161(h)(8)(b)(iv)[, even though a case is] not `complex' 

as that term is defined in § 3161(h)(8)(B)(ii) . . . ."); United 

States v. Monroe, 833 F.2d 95 (6th Cir. 1987). 
Local Rules of the United States District Court for the Western 

District of Pennsylvania.5 The defendant argues that the order 

granting defense counsel's motion for an extension was "void ab 

initio" because the motion was not filed within ten days after 

arraignment, as required by this local rule. We do not accept 

this argument. First, the defendant cites no authority for the 

proposition that a motion filed in violation of a local rule is 

void ab initio for Speedy Trial Act purposes, and we are aware of 

no such authority. Second, it does not appear that the local 

rule was violated. As the district court noted in denying 

reconsideration, the rule provides that "the court, in its 

discretion for good cause shown, may permit a motion to be made 

and heard at a later time." By entertaining and granting the 

extension request, the district court appears to have implicitly 

granted an extension of the time period specified in the local 

rule. 

 

5. This provision states: 

 Motions under Rule 12 and Rule 41(e) of 

the Federal Rules of Criminal Procedure shall 

be made either before a plea is entered or 

within ten days after arraignment, unless the 

court extends the time either at arraignment, 

or upon written application made within the 

said ten-day period. Such application shall 

set forth the grounds upon which it is made 

and shall be served on the United States 

attorney. The court, in its discretion, 

may, however, for good cause shown, permit a 

motion to be made and heard at a later date. 
 We therefore hold that the district court was correct 

in excluding, for Speedy Trial purposes, the period from the 

granting of defense counsel's request for an extension of time to 

file pretrial motions until that extension expired. 

 B. We next consider the defendant's argument that the 

district court erroneously excluded the period covered by his 

attorney's request for a continuance so that plea negotiations 

could be pursued. The defendant seems to suggest that 18 U.S.C. 

§ 3161(h)(8) cannot apply to a continuance granted for this 

purpose, but we do not agree. Nothing in the language of 18 

U.S.C. § 3161(h)(8) suggests that an "ends of justice" 

continuance may not be granted for this purpose.6 Instead, the 

statutory language refers broadly to "[a]ny period of delay 

resulting from a continuance granted" to serve "the ends of 

justice." 18 U.S.C. § 3161(h)(8)(A). In current federal 

practice, plea negotiations play a vital role. We therefore see 

no reason why an "ends of justice" continuance may not be granted 

in appropriate circumstances to permit plea negotiations to 

 

6. Congress specifically provided in 18 U.S.C. § 3161(h)(1)(I) 

for the exclusion of "delay resulting from consideration by the 

court of a proposed plea agreement to be entered into by the 

defendant and the attorney for the Government." This provision 

does not suggest, however, that Congress meant to preclude an 

"ends of justice" continuance under 18 U.S.C. § 3161(h)(8) for 

the purpose of permitting plea negotiations to continue. "Ends 

of justice" continuances under 18 U.S.C. § 3161(h)(8) were 

obviously intended for use in situations that do not fall within 

one of the exclusions specifically set out in 18 U.S.C. § 

3161(h)(1)-(7). 
continue.7 See United States v. Williams, 12 F.3d 452, 460 (5th 

Cir. 1994). Cf. United States v. Montoya, 827 F.2d 143, 150 (7th 

Cir. 1987) (delay caused by plea bargaining excluded under 18 

U.S.C. § 3161(h)(1)(D)). 

 While we believe that such continuances should be 

granted sparingly, we hold that the district court's exercise of 

discretion in this case was proper. Defense counsel strongly 

urged the court to grant the continuance, noting that his client 

 

7. Our holding is consistent with the decision in United States 

v. Perez-Reveles, 715 F.2d 1348, 1350-53 (9th Cir. 1983). In 

that case, the Ninth Circuit held that the district court had 

erred in excluding a certain period of time under 18 U.S.C. § 

3161(h)(8)(A) because "the district court's rulings did not 

include the explicit findings" required by that provision. 715 

F.2d at 1353. See also United States v. Lewis, 980 F.2d 555, 563 

n.13 (9th Cir. 1992)(summarizing holding of Perez-Reveles). 

Because the findings in this case were more extensive and better 

supported than those in Perez-Reveles, we see no conflict between 

the two decisions. 

 

 We recognize, however, that there may be tension between our 

decision and the dictum in Perez-Reveles that "[n]egotiation of a 

plea bargain is not one of the factors supporting exclusion 

provided in section 3161(h)(8)(B)." 715 F.2d at 1352 (footnote 

omitted). While it is certainly true that the need for more time 

in order to conduct plea negotiations is not among the factors 

listed in 18 U.S.C. § 3161(h)(8)(B)(i)-(iv), it does not follow 

that a district court cannot consider this factor. Title 18 

U.S.C. § 3161(h)(8)(B) (emphasis added) states that: 

 [T]he factors, among others, which a judge 

shall consider in determining whether to 

grant a continuance . . . [are those set out 

in 18 U.S.C. § 3161(h)(8)(B)(i)-(iv)]. 

Thus, it is clear that a judge may (and, indeed, "shall") 

consider other factors as well. If the Perez-Reveles court 

reasoned to the contrary, we must disagree. 
was offering to provide information that could be helpful in 

other drug investigations and that such cooperation could enable 

his client to obtain a more favorable sentence. A33-34, 37-38. 

The prosecution informed the court that the defendant had made a 

"very good and very thorough proffer" and that the parties were 

"making progress" in reaching an agreement. A29, 34. The court 

was aware that negotiations had been hampered due to the illness 

and hospitalization of the DEA agent who was knowledgeable about 

drug dealing in the area of Pittsburgh with which the defendant 

was familiar. A 38. The court questioned the defendant himself 

and verified that he preferred to continue plea negotiations 

rather than going to trial immediately. A40-47. Under all of 

these circumstances, the "ends of justice" continuance was 

properly granted. We thus hold that the Speedy Trial Act was not 

violated in this case.8

III. 

 The defendant next contends that the district court 

committed several errors in calculating his sentence. 

 A. The defendant's first sentencing argument is that 

the district court misapplied U.S.S.G. § 3E1.1, which concerns 

"acceptance of responsibility." This provision states: 

 

8. We have considered all of the defendant's Speedy Trial Act 

arguments that are not directly addressed in the body of this 

opinion, and we find those arguments to lack merit. 
 (a) If the defendant clearly demonstrates acceptance 

of responsibility for his offense, decrease the 

offense level by 2 levels. 

 (b) If the defendant qualifies for a decrease under 

subsection (a), the offense level determined prior 

to the operation of subsection (a) is level 16 or 

greater, and the defendant has assisted 

authorities in the investigation or prosecution of 

his own misconduct by taking one or more of the 

following steps: 

 (1) timely providing complete information to the 

government concerning his own involvement in 

the offense; or 

 (2) timely notifying authorities of his intention 

to enter a plea of guilty, thereby permitting 

the government to avoid preparing for trial 

and permitting the court to allocate its 

resources efficiently. 

 decrease the offense level by 1 additional level. 

The district court granted a two-offense-level decrease under 

U.S.S.G. § 3E1.1(a), but the defendant maintains that he was 

entitled to an additional one-offense-level decrease under 

subsection (b). In rejecting this argument, the district court 

stated: 

 I don't think that you would be entitled to 

that [the third point] unless he had accepted 

responsibility for all of the counts. 

Supp. App. 7. The court then added: 

 [H]e didn't accept responsibility for all of 

his counts, and he has been given a reduction 

of two points for accepting responsibility 

for the first two counts. That's the counts 

he was convicted of. But he went to trial. 

Fortunately he won, but I think [the 
probation officer] is right in giving him 

only a two-point reduction. 

Id. at 8. Thus, it appears that the district court's denial of 

the additional one-offense-level decrease was based at least in 

part on the defendant's refusal to plead guilty to count III, on 

which he was acquitted. 

 The defendant argues that the district court's ruling 

was inconsistent with United States v. Rodriguez, 975 F.2d 999 

(3d Cir. 1992). In that case, two defendants, Rodriguez and 

Anderson, were willing to plead guilty to some of the charges 

against them but not to others, and they therefore went to trial. 

Rodriguez refused to plead guilty to a firearms possession count 

on which he was acquitted at trial. Anderson was willing to 

plead guilty to a charge of conspiring to distribute cocaine, but 

he refused to admit that the object of the conspiracy was to 

distribute more than three kilograms of cocaine, and on appeal 

our court agreed with his position concerning the amount of 

cocaine involved. At the sentencing stage, Rodriguez and 

Anderson argued that they were entitled to an offense-level 

decrease under U.S.S.G. § 3E1.1 even though they had not pled 

guilty, but the district court denied that decrease. 

 On appeal, we concluded that Rodriguez's and Anderson's 

sentences should be vacated and that they should be resentenced. 

We noted that a defendant who elects to go to trial is not 

categorically barred from receiving an offense-level reduction 

for acceptance of responsibility. 975 F.2d at 1009. We then 
concluded that "when the trial court decided whether to award the 

two level reduction, it erred in failing to consider the reasons 

for which Anderson and Rodriguez refused to plead to the entire 

indictment, along with the apparent validity of those reasons." 

Id. at 1009. We therefore remanded "for consideration of this 

issue by the district court" at resentencing. Id. 

 Our holding in Rodriguez essentially reiterates the 

rules set out in U.S.S.G. § 3E1.1, Application Note 1. That Note 

states that it is appropriate for a court to consider a 

defendant's "truthfully admitting the conduct comprising the 

offense(s) of conviction, and truthfully or not falsely denying 

any additional relevant conduct for which the defendant is 

accountable under [U.S.S.G.] § 1B1.3 (Relevant Conduct)." This 

Note then adds: 

 Note that a defendant is not required to 

volunteer, or affirmatively admit, relevant 

conduct beyond the offense of conviction in 

order to obtain a reduction under subsection 

(a). A defendant may remain silent in 

respect to relevant conduct beyond the 

offense of conviction without affecting his 

ability to obtain a reduction under this 

subsection. However, a defendant who falsely 

denies, or frivolously contests, relevant 

conduct that the court determines to be true 

has acted in a manner inconsistent with 

acceptance of responsibility. . . . 

 Applying these rules here, we believe that the 

defendant's sentence must be vacated and that this case must be 

remanded for resentencing. Based on the statements made by the 

district court, it appears that the court may have incorrectly 
considered the defendant's refusal to admit conduct not 

comprising part of the offenses of conviction. On appeal, the 

government has propounded other bases on which an offense-level 

reduction under U.S.S.G. § 3E1.1 could, in its view, be denied. 

We will not address these grounds here but will leave them to be 

considered in the first instance by the district court. 

 B. The defendant argues that the district court erred 

in awarding one criminal history point under U.S.S.G. § 4A1.1(c) 

for his prior sentence for the summary offense of harassment. 

Under U.S.S.G. § 4A1.2(c), prior sentences for specified 

offenses, "by whatever name they are known," are generally not 

counted. One of these specified offenses is "disorderly 

conduct," and the defendant argues that the offense of 

"harassment" under Pennsylvania law is "equivalent" to 

"disorderly conduct" and therefore should not be counted. 

 We need not and consequently do not reach this 

question. The district court calculated that the defendant had 

11 criminal history points and therefore placed him in criminal 

history category V. Even if we accepted the defendant's argument 

concerning his sentence for harassment, the defendant would still 

have 10 criminal history points; he would thus remain in criminal 

history category V, and his sentence would be unaffected.9

 

9. By instructing that sentencing courts should not count a 

prior sentence for "disorderly conduct" "by whatever name [it is] 

known" (U.S.S.G. § 4A1.2(c)(1)), the Sentencing Commission 

appears to mean that sentencing courts should determine whether a 

particular offense is in essence the same as the offense of 

disorderly conduct as that offense is generally understood. This 
 C. The defendant's final argument concerning his 

sentence is that the district court erred in finding that he was 

a "supervisor" of criminal activity under U.S.S.G. § 3B1.1(c) and 

in thus increasing his offense level by two levels. We review 

the district court's finding for clear error. United States v. 

Balletiere, 971 F.2d 961, 969 (3d Cir. 1992); United States v. 

Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992), cert. denied, 113 

S. Ct. 497 (1992). Applying that standard, we reject the 

defendant's argument. 

 The evidence at trial showed that the defendant 

directed a young man or a boy, whom the defendant identified as 

his cousin, to deliver a package of heroin to an informant. The 

evidence also established that, after this delivery was made, the 

defendant criticized the young man or boy for being too open in 

his manner of handing over the package. This evidence, although 

not overwhelming, was sufficient to support the district court's 

finding. 

IV. 

(..continued) 

instruction, however, is not easy to follow because "disorderly 

conduct" is "[a] term of loose and indefinite meaning (except 

when defined by statutes). . . ." Black's Law Dictionary 469 

(6th ed. 1990). See also IV C. Torcia, Wharton's Criminal Law § 

523 at 177-78 (14th ed 1981) ("The offense varies significantly 

from state to state, and a uniform and consistent pattern is 

difficult to discern."). It would therefore be helpful if the 

Commission clarified what it means by the essence of the offense 

of disorderly conduct. 
 For the reasons explained above, we affirm the 

defendant's conviction, but we vacate his sentence and remand for 

resentencing in accordance with this opinion.