IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-51202

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CONNOR PHILLIP KOSS,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:14-CR-44-3

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Connor Phillip Koss pleaded guilty to one count of conspiracy to possess 

with the intent to distribute in excess of 50 kilograms of marijuana and one 

count of aiding and abetting possession with the intent to distribute in excess 

of 50 kilograms of marijuana. He was sentenced to a within-guidelines prison 

term of 121 months on each count, to be served concurrently. On appeal, he 

argues that the district court erred when it calculated his base offense level, 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 8, 2015

Lyle W. Cayce

Clerk

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2

because only the portion of the marijuana butter which was pure 

tetrahydrocannabinol (THC), not the weight of the entire substance, should 

have been counted. As Koss raised this objection below, we review the district 

court’s calculation of the quantity of drugs involved in the offense for clear, 

rather than plain, error. United States v. Betancourt, 422 F.3d 240, 246 (5th 

Cir. 2005).

Although the Guidelines do not include specific guidance for marijuana 

butter, neither marijuana nor THC is one of the controlled substances for 

which the Guidelines state that the relevant weight is that of the controlled 

substance itself, and not the entire mixture, substance, pill, capsule, or carrier 

medium. U.S.S.G. § 2D1.1(c), Note to Drug Quantity Table (B), (G). And 

though mixture or a substance “does not include materials that must be 

separated from the controlled substance before the controlled substance can be 

used,” § 2D1.1 comment. (n.1), the purpose of putting the THC in butter form 

is to make it more user friendly. Indeed, Koss cites no authority holding that

only the pure THC should count in the weight calculation. The district court

thus did not clearly err in calculating the drug quantity level. See Betancourt, 

422 F.3d at 246.

In its brief, the Government raised a second issue in Koss’s favor:

whether the district court erred when sentencing Koss to 121 months because 

the amount of marijuana he was held personally accountable for was less than 

the 50 kilograms of marijuana charged in the indictment to which he pleaded 

guilty. That lower amount, if the appropriate measure for assessing the 

statutory drug quantity element, would result in a five-year statutory 

maximum. See 21 U.S.C. § 841(b)(1)(D). Koss adopted this argument in his 

reply brief. Although we ordinarily do not review issues raised for the first 

time in a reply brief, this general rule is viewed differently when, “a new issue 

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is raised in the appellee’s brief and the appellant responds in his reply brief.” 

United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010) (internal 

quotation marks and citation omitted); accord United States v. Ramirez, 557 

F.3d 200, 203 (5th Cir. 2009). We thus exercise our discretion to consider the 

issue. 

Because the issue was not raised below, review is for plain error. To 

demonstrate plain error, Koss must show a forfeited error that is clear or 

obvious and that affects his substantial rights. See Puckett v. United States, 

556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion 

to correct the error but only if it seriously affects the fairness, integrity, or 

public reputation of judicial proceedings. See id.

Koss cannot meet this standard. Our cases reach different conclusions 

on whether a defendant is subject to a statutory minimum sentence triggered 

by drug quantity when the relevant conduct attributed to the defendant was 

less than the quantity of drugs for which the defendant was convicted. 

Compare United States v. Morgan, 292 F.3d 460, 462-65 (5th Cir. 2002), United 

States v. Randall, 595 F. App’x 454, 455-56 (5th Cir. 2015) with United States 

v. Guajardo, 391 F. App’x 384, 385-86 (5th Cir. 2010), United States v. 

Gurrusquieta, 54 F. App’x 592, 2002 WL 31730264 (5th Cir. 2002). But the 

cited cases finding that the Guidelines-based individual assessment rather 

than the conspiracy-wide drug quantity govern the mandatory minimum

predated Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013), in which the 

Supreme Court changed course and held that drug quantity establishing a 

minimum is an element of the offense and not merely a sentencing 

enhancement. See id. at 2163 (overruling Harris v. United States, 536 U.S. 

545 (2002)). 

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The question in this case is whether drug quantity for purposes of the 

statutory maximum is based on the overall drug quantity involved in the 

offense of conviction or the amount individually attributed to the defendant 

under the Guidelines. The law is less uncertain in the context of maximums

than it is for minimums because drug quantity has been considered an element 

of the offense since Apprendi v. New Jersey, 530 U.S. 466 (2000). In the 

aftermath of that decision, we explained that “the government need only allege 

and prove to the jury the bare facts necessary to increase the statutory 

sentencing maximum for the conspiracy as a whole.” United States v. Turner, 

319 F.3d 716, 722 (5th Cir. 2003) (quoting Derman v. United States, 298 F.3d 

34, 42-43 (1st. Cir. 2002) (emphasis in original)); United States v. Akins, 746 

F.3d 590, 611-12 (5th Cir. 2014) (“[O]nce the jury has determined that the 

conspiracy involved a type of quantity of drugs sufficient to justify a sentence 

above the default statutory maximum and has found a particular defendant 

guilty of participation in the conspiracy, the judge lawfully may determine the 

drug quantity attributable to that defendant and sentence him accordingly.” 

(quoting Turner, 319 F.3d at 722). The Fifth Circuit pattern jury instructions 

reflect this understanding: “Fourth: That the overall scope of the conspiracy 

involved at least ________________ (describe quantity) of _______________ 

(name controlled substance).” Fifth Circuit Pattern Jury Instruction § 2.9 

(emphasis added).

In this case that did not go to trial, what thus matters for purposes of the 

statutory maximums is the offenses to which Koss pleaded guilty. The 

conspiracy offense involved 50 kilograms or more of marijuana as did the 

substantive offense, for which he could be liable under Pinkerton v. United 

States, 328 U.S. 640 (1946) even if not individually involved in dealing that 

quantity of drugs.

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Koss therefore has not demonstrated plain error on this issue. See 

Puckett, 556 U.S. at 135. The judgment is AFFIRMED. 

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