1

In addition to challenging the district court's application

of the guidelines, the four appellants challenge the accuracy of

the district court's factual findings. An additional appellant,

James O'Bryant, also makes this contention. We find that these

contentions lack merit and do not warrant discussion. 

United States Court of Appeals,

Eleventh Circuit.

No. 93-8843.

UNITED STATES of America, Plaintiff-Appellee,

v.

Lenzy REESE, Jr.; Mary Johnson, a/k/a "Lady Red"; James

O'Bryant, a/k/a "Boo-Boo"; Tyrone Davis; Benjamin LaShawn Cooper;

Lucious Johnson, a/k/a "Humpy"; Pamela Cooper; Willie Norton;

Lester Bell, Defendants-Appellants.

Oct. 26, 1995.

Appeals from the United States District Court for the Southern

District of Georgia. (No. 5:92-00029-CR), Anthony A. Alaimo, Judge.

Before HATCHETT, DUBINA and BLACK, Circuit Judges.

HATCHETT, Circuit Judge:

The nine appellants in this criminal appeal raise numerous

issues challenging their convictions and sentences for

participation in a drug trafficking conspiracy. With the exception

of one sentencing issue, we find that all of the appellants'

contentions lack merit and do not warrant discussion. The one

issue requiring discussion is whether the district court misapplied

section 1B1.3 of the United States Sentencing Guidelines in

attributing quantities of cocaine to four of the appellants: Lenzy

Reese, Jr., Lester Bell, Tyrone Davis, and Mary Johnson. 1 We

affirm the convictions, vacate the sentences, and remand for

resentencing.

BACKGROUND
 2

The jury also convicted Johnson of the substantive offense

of possessing a controlled substance with the intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). 

In the late 1980s and early 1990s, Eugene Edmond led a drug

trafficking organization in Waycross, Georgia. Reese, Bell, and

Davis were "street-level" dealers for Edmond's organization.

Johnson was married to Edmond's partner. The organization used

Johnson's house as a storage and distribution center for cocaine.

On April 16, 1993, a jury convicted the appellants of

conspiring to distribute controlled substances in violation of 21

U.S.C. § 846.2 The United States Probation Office then prepared a

presentence investigation report (PSR) for each of the appellants.

Each PSR included a determination of the amount of cocaine

attributable to each of the appellants under the Sentencing

Guidelines. In making these determinations, the PSRs calculated

that the Edmond conspiracy distributed approximately one kilogram

of crack cocaine and three ounces of cocaine hydrochloride per

month. The PSRs then multiplied this figure to the number of

months each appellant was involved in the Edmond conspiracy to

arrive at an overall determination.

The appellants objected to the determinations in their PSRs.

In response, the probation office prepared an addendum to each PSR.

The addenda rejected the appellants' objections and adhered to the

original determinations. Subsequently, in June 1993, the district

court held individual sentencing hearings for each of the

appellants.

At Reese's sentencing hearing, defense counsel objected to the

PSR's assertion that Reese had participated in the Edmond
conspiracy for five months. Counsel contended that Reese "should

be attributed with the amount of cocaine that would be applicable

for a three-month period as opposed to a five-month period." The

district court overruled Reese's objection and adopted the finding

contained in the addendum to his PSR, which stated:

According to Eugene Edmond, Reese was a distributor for his

organization from May, 1991 to September, 1991. Even though

Reese may have personally distributed only one to two ounces

of crack cocaine per week for Edmond, he should be held

accountable for the entire quantity distributed by the Edmond

organization based on his knowledge of the organization.

Reese knew that ... others were also selling quantities of

crack cocaine for Eugene Edmond. As such, pursuant to

U.S.S.G. § 1B1.3 (relevant conduct), the defendant should be

held accountable for all controlled substances distributed by

the Edmond organization during the period of time in which

Reese was a member of the Edmond organization.

The district court ultimately sentenced Reese to life imprisonment.

At Bell's sentencing hearing, his counsel objected to the

PSR's determination that Bell worked for Edmond for seven months

and was therefore accountable for seven kilograms of crack cocaine.

Counsel contended that Bell worked for Edmond for less than five

months, and therefore, was only accountable for less than five

kilograms of crack cocaine. In response to Bell's objection, the

district court adopted, with one exception, the finding in the

addendum to his PSR. The addendum stated:

The probation officer ... interview[ed] Eugene Edmond who

identified the defendant as having been employed in the

organization from June, 1991, through January, 1992. Edmond

acknowledges that his organization dealt at least one kilogram

of crack cocaine and three ounces of cocaine hydrochloride per

month. Because of Bell's knowledge of the Edmond organization

and the fact that his (Bell's) activities were in furtherance

of the criminal conspiracy, the defendant is attributed with

at least seven kilograms of cocaine hydrochloride.

The district court took exception with the seven-kilogram total;

instead, it found that Bell was only responsible for "in excess of
five kilos." The district court ultimately sentenced Bell to 360

months of imprisonment.

At Davis's sentencing hearing, his counsel objected to the

quantity attributed, arguing that Davis had no "knowledge of any

part of [Edmond's] organization." The district court overruled the

objection and adopted the finding in the addendum to Davis's PSR,

which stated:

[A]lthough the defendant worked under the direction of Cedric

Smith, he was still a part of the Edmond organization.

According to Eugene Edmond, Tyrone Davis was fully

knowledgeable of the scope and extent of the Edmond

organization and participated in the distribution of cocaine

over an extended period of time. The cocaine distributed by

Davis was cocaine provided to Cedric Smith through Eugene

Edmond. Based on the knowledge that Davis had of Smith's role

in the Edmond organization, Davis is attributed with the

amount of drugs attributed to Smith during the defendant's six

month period of involvement. Since Smith was culpable for six

kilograms of crack cocaine and 18 ounces of cocaine

hydrochloride during the six month period, Tyrone Davis is

accountable for the same.

The district court then sentenced Davis to 360 months of

imprisonment.

At Johnson's sentencing hearing, counsel challenged the

credibility of the evidence indicating that Johnson stored and

distributed cocaine. The district court overruled Johnson's

objection and adopted the finding in the addendum to her PSR, which

stated:

[T]he defendant is culpable for 33 kilograms of crack cocaine

and 48 ounces of cocaine hydrochloride. The evidence in this

case showed Lucious Johnson and Eugene Edmond stored

quantities of crack cocaine and cocaine hydrochloride at the

defendant's residence. According to Eugene Edmond, Mary

Johnson would provide Edmond and other members of the

conspiracy with quantities of crack cocaine and cocaine

hydrochloride to be distributed in the Waycross area.

Further, portions of the crack cocaine and cocaine

hydrochloride which were stored at the defendant's residence

were transported to Douglas, Georgia, by Lucious Johnson to be
 3

Appellants also contend that the district court failed to

make individualized findings. See United States v. Ismond, 993

F.2d 1498, 1499 (11th Cir.1993). The district court, however,

held individual sentencing hearings and made specific findings

for each individual appellant. Thus, appellants' contention

essentially amounts to a legal challenge to the district court's

application of section 1B1.3. 

distributed in the Douglas area. Since the defendant stored

and distributed quantities of crack cocaine and cocaine

hydrochloride to members of the Edmond organization, pursuant

to U.S.S.G. § 1B1.3 (relevant conduct), she is held

accountable for the entire quantity of controlled substances

distributed by this organization.

Ultimately, the district court sentenced Johnson to life

imprisonment.

CONTENTIONS

Appellants contend that the district court did not properly

apply the amended version of U.S.S.G. § 1B1.3 in attributing

quantities of cocaine to them.3

 The government responds that the

appellants' sentences were correctly calculated under both the old

and amended versions of section 1B1.3.

ISSUE

The only issue we discuss is whether the district court

misapplied U.S.S.G. § 1B1.3 in attributing quantities of cocaine to

the appellants.

DISCUSSION

A. Application of section 1B1.3 in drug conspiracies

U.S.S.G. § 2D1.1 sets the base offense level for conspiring to

distribute controlled substances. See United States v. Butler, 41

F.3d 1435, 1442 (11th Cir.1995). Calculating the base offense

level under section 2D1.1 "requires a determination of the quantity

of illegal drugs properly attributable to a defendant. This, in
turn, requires an assessment of the conduct of others for which a

defendant is accountable under section 1B1.3." Butler, 41 F.3d at

1442.

Before November 1, 1992, section 1B1.3(a) held defendants

accountable for

all acts and omissions committed or aided and abetted by the

defendant, or for which the defendant would be otherwise

accountable, that occurred during the commission of the

offense of conviction, in preparation for that offense, or in

the course of attempting to avoid detection or responsibility

for that offense, or that are otherwise in furtherance of that

offense....

U.S.S.G. § 1B1.3(a)(1) (1991) (emphasis added). The commentary to

section 1B1.3 clarified the emphasized language: "In the case of

criminal activity undertaken in concert with others, whether or not

charged as a conspiracy, the conduct for which the defendant "would

be otherwise accountable' also includes conduct of others in

furtherance of the execution of the jointly-undertaken criminal

activity that was reasonably foreseeable by the defendant."

U.S.S.G. § 1B1.3 comment. (n. 1) (1991). On the other hand, the

commentary explained that a defendant was not accountable for the

conduct of others "[w]here it is established that the conduct was

neither within the scope of the defendant's agreement, nor was

reasonably foreseeable in connection with the criminal activity the

defendant agreed to jointly undertake...." U.S.S.G. § 1B1.3

comment. (n. 1) (1991). This language seemed to indicate that a

conspirator was accountable for all reasonably foreseeable conduct,

regardless of the extent of the conspirator's agreement to

participate in the conspiracy. See United States v. Studley, 47

F.3d 569, 574 (2d Cir.1995). Indeed, the commentary provided an
example that supported this interpretation:

Defendants H and I engaged in an ongoing marihuana importation

conspiracy in which Defendant J was hired only to help

off-load a single shipment. Defendants H, I, and J are

included in a single count charging conspiracy to import

marihuana. For the purposes of determining the offense level

under the guideline, Defendant J is accountable for the entire

single shipment of marihuana he conspired to help import and

any acts or omissions in furtherance of the importation that

were reasonably foreseeable. He is not accountable for prior

or subsequent shipments of marihuana imported by Defendants H

or I if those acts were beyond the scope of, and not

reasonably foreseeable in connection with, the criminal

activity he agreed to jointly undertake with Defendants H and

I (i.e., the importation of the single shipment of marihuana).

U.S.S.G. § 1B1.3 comment. (n. 1) (1991). In other words, section

1B1.3 instructed that a conspirator was held accountable for the

acts of his coconspirators if: (1) the acts were reasonably

foreseeable; or (2) the acts were within the scope of the criminal

activity he agreed to jointly undertake.

Thus, before November 1, 1992, the law in this circuit

governing the application of section 1B1.3 in the context of drug

conspiracies was clear. A conspirator was held responsible for all

reasonably foreseeable quantities of drugs involved in the

conspiracy, regardless of the scope of the defendant's agreement to

participate. See United States v. Andrews, 953 F.2d 1312, 1319

(11th Cir.), cert. denied, 505 U.S. 1210, 112 S.Ct. 3007, 120

L.Ed.2d 882 (1992). For example, in Andrews, this court made clear

that "street-level" dealers in a conspiracy are not simply

responsible for the quantities of cocaine that they agree to sell;

rather, they are also responsible for all other reasonably

foreseeable quantities distributed in the conspiracy. Andrews, 953

F.2d at 1319-23. Moreover, since a finding of reasonable

foreseeability meant that the defendant was accountable under
section 1B1.3, courts often did not need to address the scope of

the defendant's agreement to participate in the drug conspiracy.

See Studley, 47 F.3d at 573 ("Our opinions on this portion of

section 1B1.3 have primarily focused on the issue of whether

conduct was foreseeable to the defendant, and have not directly

addressed whether conduct was "jointly undertaken.' ").

On November 1, 1992, a clarifying amendment to section 1B1.3

became effective. See Butler, 41 F.3d at 1443 n. 7. Section

1B1.3(a), as amended, provides that a defendant is responsible for:

(1) (A) all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully

caused by the defendant; and

 (B) in the case of a jointly undertaken criminal activity

(a criminal plan, scheme, endeavor, or enterprise

undertaken by the defendant in concert with others,

whether or not charged as a conspiracy), all reasonably

foreseeable acts and omissions of others in furtherance

of the jointly undertaken criminal activity[.]

U.S.S.G. § 1B1.3(a). The amendment also included commentary that

explains how section 1B1.3 should be applied in cases of jointly

undertaken criminal activity, such as drug conspiracies.

Application note 2 of the commentary provides:

In order to determine the defendant's accountability for the

conduct of others under subsection (a)(1)(B), the court must

first determine the scope of the criminal activity the

particular defendant agreed to jointly undertake (i.e., the

scope of the specific conduct and objectives embraced by the

defendant's agreement). The conduct of others that was both

in furtherance of, and reasonably foreseeable in connection

with, the criminal activity jointly undertaken by the

defendant is relevant conduct under this provision. The

conduct of others that was not in furtherance of the criminal

activity jointly undertaken by the defendant, or was not

reasonably foreseeable in connection with that criminal

activity, is not relevant conduct under this provision.

....

With respect to offenses involving contraband (including
controlled substances), the defendant is accountable for all

quantities of contraband with which he was directly involved

and, in the case of a jointly undertaken criminal activity,

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). Under this commentary,

reasonable foreseeability alone is no longer sufficient to

establish accountability. Instead, defendants are only accountable

for other conduct that was reasonably foreseeable and within the

scope of the criminal activity that the defendant agreed to

undertake. In fact, to illustrate this change, the commentary

amended the example that it had previously provided regarding the

marijuana importation conspiracy. The example now reads:

(3) Defendants H and I engaged in an ongoing marihuana conspiracy

in which Defendant J was hired only to help off-load a single

shipment. Defendants H, I, and J are included in a single

count charging conspiracy to import marihuana. Defendant J is

accountable for the entire single shipment of marihuana he

helped import under subsection (a)(1)(A) and any acts and

omissions in furtherance of the importation of that shipment

that were reasonably foreseeable. ( See the discussion in

example A(1) above). He is not accountable for prior or

subsequent shipments of marihuana imported by Defendants H or

I because those acts were not in furtherance of his jointly

undertaken criminal activity (the importation of the single

shipment of marihuana).

U.S.S.G. § 1B1.3 comment. (n. 2) (emphasis added). Thus, even

though the conspirator in the example may have reasonably foreseen

other shipments of marijuana, he is not accountable for those other

shipments because they were not part of the scope of the criminal

activity that he agreed to undertake. Application note 2 of the

amended commentary also includes five new examples that emphasize

this change:

(4) Defendant K is a wholesale distributor of child pornography.

Defendant L is a retail-level dealer who purchases child

pornography from Defendant K and resells it, but otherwise
operates independently of Defendant K. Similarly, Defendant

M is a retail-level dealer who purchases child pornography

from Defendant K and resells it, but otherwise operates

independently of Defendant K. Defendants L and M are aware of

each other's criminal activity but operate independently.

Defendant N is Defendant K's assistant who recruits customers

for Defendant K and frequently supervises the deliveries to

Defendant K's customers. Each defendant is convicted of a

count charging conspiracy to distribute child pornography.

Defendant K is accountable under subsection (a)(1)(A) for the

entire quantity of child pornography sold to Defendants L and

M. Defendant N also is accountable for the entire quantity

sold to those defendants under subsection (a)(1)(B) because

the entire quantity was within the scope of his jointly

undertaken criminal activity and reasonably foreseeable.

Defendant L is accountable under subsection (a)(1)(A) only for

the quantity of child pornography that he purchased from

Defendant K because the scope of his jointly undertaken

criminal activity is limited to that amount. For the same

reason, Defendant M is accountable under subsection (a)(1)(A)

only for the quantity of child pornography that he purchased

from Defendant K.

(5) Defendant O knows about her boyfriend's ongoing

drug-trafficking activity, but agrees to participate on only

one occasion by making a delivery for him at his request when

he was ill. Defendant O is accountable under subsection

(a)(1)(A) for the drug quantity involved on that one occasion.

Defendant O is not accountable for the other drug sales made

by her boyfriend because those sales were not in furtherance

of her jointly undertaken criminal activity (i.e., the one

delivery).

(6) Defendant P is a street-level drug dealer who knows of other

street-level drug dealers in the same geographic area who sell

the same type of drug as he sells. Defendant P and the other

dealers share a common source of supply, but otherwise operate

independently. Defendant P is not accountable for the

quantities of drugs sold by the other street-level drug

dealers because he is not engaged in a jointly undertaken

criminal activity with them. In contrast, Defendant Q,

another street-level drug dealer, pools his resources and

profits with four other street-level drug dealers. Defendant

Q is engaged in a jointly undertaken criminal activity and,

therefore, he is accountable under subsection (a)(1)(B) for

the quantities of drugs sold by the four other dealers during

the course of his joint undertaking with them because those

sales were in furtherance of the jointly undertaken criminal

activity and reasonably foreseeable in connection with their

criminal activity.

(7) Defendant R recruits Defendant S to distribute 500 grams of

cocaine. Defendant S knows that Defendant R is the prime

figure in a conspiracy involved in importing much larger
quantities of cocaine. As long as Defendant S's agreement and

conduct is limited to the distribution of the 500 grams,

Defendant S is accountable only for the 500 gram amount (under

subsection (a)(1)(A)), rather than the much larger quantity

imported by Defendant R.

(8) Defendants T, U, V, and W are hired by a supplier to backpack

a quantity of marihuana across the border from Mexico into the

United States. Defendants T, U, V, and W receive their

individual shipments from the supplier at the same time and

coordinate their importation efforts by walking across the

border together for mutual assistance and protection. Each

defendant is accountable for the aggregate quantity of

marihuana transported by the four defendants. The four

defendants engaged in a jointly undertaken criminal activity,

the object of which was the importation of the four backpacks

containing marihuana (subsection (a)(1)(B)), and aided and

abetted each other's actions (subsection (a)(1)(A)) in

carrying out the jointly undertaken criminal activity. In

contrast, if Defendants T, U, V, and W were hired

individually, transported their individual shipments at

different times, and otherwise operated independently, each

defendant would be accountable only for the quantity of

marihuana he personally transported (subsection (a)(1)(A)).

As this example illustrates, in cases involving contraband

(including controlled substances), the scope of the jointly

undertaken criminal activity (and thus the accountability of

the defendant for the contraband that was the object of that

jointly undertaken activity) may depend upon whether, in the

particular circumstances, the nature of the offense is more

appropriately viewed as one jointly undertaken criminal

activity or as a number of separate criminal activities.

U.S.S.G. § 1B1.3 comment. (n. 2).

 The commentary of section 1B1.3, and its examples, are

binding on this court. See Stinson v. United States, --- U.S. ----

, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Although United States

v. Bush, 28 F.3d 1084 (11th Cir.1994), did not fully and explicitly

discuss this change in the law, it has recently followed the new

version of section 1B1.3. In Bush, the defendant, who had been

convicted of conspiring to distribute cocaine, challenged the

quantity of cocaine that the district court attributed to her under

the guidelines. This court vacated the defendant's sentence

because "the district court found that [the defendant] could
foresee the quantity of drugs distributed by her [coconspirators]

without making the critical inquiry as to the scope of criminal

activity undertaken by the defendant." Bush, 28 F.3d at 1087.

Bush provides the correct post-amendment interpretation of section

1B1.3 in the context of a drug conspiracy.

B. Application of section 1B1.3 to this case

 Generally, a district court's attribution of drugs to a

defendant under the guidelines is reviewed under the clearly

erroneous standard. See United States v. Hansley, 54 F.3d 709, 714

(11th Cir.1995). The issue in this appeal, however, involves

purely a legal question: whether the district court misapplied

U.S.S.G. § 1B1.3. As a result, our review is de novo. See United

States v. Smith, 54 F.3d 690, 691 (11th Cir.1995), cert. denied, --

- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---- (U.S. Sept. 7, 1995)

(No. 95-5919).

 The district court sentenced the appellants in June 1993.

Thus, the amended version of section 1B1.3 applied because the

applicable Sentencing Guidelines are those "that are in effect on

the date the defendant is sentenced." 18 U.S.C. § 3553(a)(4)(A);

see also United States v. Munoz-Realpe, 21 F.3d 375, 377 (11th

Cir.1994) ("the version of the Guidelines in effect on the date of

sentencing is applied").

 In attributing quantities of cocaine to the appellants, the

district court adopted the findings in the addenda to the PSRs.

These findings attribute to the appellants all of the cocaine

Edmond's organization distributed while the appellants were

involved in the Edmond conspiracy. In support of this
 4

In its brief, the government argues that even though the

district court relied on the pre-amendment version of the

guidelines, any error was harmless. An incorrect sentence,

properly objected to, will seldom constitute harmless error,

especially when the difference is in terms of years. Thus, we

reject the harmless error argument. 

determination, the findings only state that the appellants could

have reasonably foreseen such distribution. Thus, the district

court did not consider the scope of criminal activity that each

appellant agreed to undertake. The findings with respect to Reese

most clearly illustrate this point:

Even though Reese may have personally distributed only one to

two ounces of crack cocaine per week for Edmond, he should be

held accountable for the entire quantity distributed by the

Edmond organization based on his knowledge of the

organization. Reese knew that ... others were also selling

quantities of crack cocaine for Eugene Edmond. As such,

pursuant to U.S.S.G. § 1B1.3 (relevant conduct), the defendant

should be held accountable for all controlled substances

distributed by the Edmond organization during the period of

time in which Reese was a member of the Edmond organization.

Because the findings rest solely on the basis of the appellants'

knowledge, it is evident that the district court was under the

erroneous impression that the pre-amendment version of section

1B1.3 applied.4

 Although the appellants objected to the quantities of cocaine

attributed to them, they did not mention the change in the

circuit's law due to the amendment or any of the amended

commentary. It is, however, obvious that the appellants have not

been sentenced under the amended guideline and the teachings of

Bush. Because the appellants objected to the amounts of cocaine

attributed to them, their objections were sufficient to preserve

the issue for appellate review. Consequently, we remand the case

to the district court for resentencing.
CONCLUSION

For the foregoing reasons, we affirm the convictions of all

nine appellants, but we vacate the sentences imposed upon Lenzy

Reese, Jr., Lester Bell, Tyrone Davis, and Mary Johnson.

CONVICTIONS AFFIRMED; SENTENCES VACATED and REMANDED.