NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-2097

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UNITED STATES OF AMERICA

v.

MARQUESE WHITTED,

 Appellant 

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-17-cr-00005-001)

District Judge: Honorable A. Richard Caputo

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Submitted Under Third Circuit L.A.R. 34.1(a)

March 23, 2020

Before: JORDAN, RESTREPO, and GREENBERG, Circuit Judges.

(Filed: March 25, 2020)

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OPINION

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 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

JORDAN, Circuit Judge.

Marquese Whitted pled guilty in the United States District Court for the Middle 

District of Pennsylvania to conspiring to distribute methamphetamine and heroin. The 

District Court subsequently sentenced him to 96 months’ imprisonment. That sentence 

was based on the Court’s finding that 448 grams of methamphetamine and 100 grams of 

heroin were attributable to Whitted. The Court, however, did not conduct the required

inquiry into whether and to what extent Whitted’s co-conspirator’s drugs could be 

attributed to him for sentencing purposes. We will therefore vacate and remand for 

resentencing.

I. BACKGROUND

In April of 2016, Whitted was arrested after heroin, marijuana, and drug 

paraphernalia were found on him during a traffic stop. He was later released on bail, but

remained under the watchful eyes of the authorities. Over the next several months, 

undercover law enforcement officers made a series of methamphetamine and heroin

purchases from him. Whitted’s source for the drugs was Derek Mountz. Both Whitted 

and Mountz were eventually arrested and indicted on multiple conspiracy and substantive 

counts based on methamphetamine and heroin trafficking, in violation of 21 U.S.C. 

§§ 841 and 846. They both pled guilty, Whitted to only the first count of the indictment, 

which charged him with conspiracy to distribute and possess with intent to distribute in 

excess of 50 grams of methamphetamine and in excess of 100 grams of heroin in 

violation of 21 U.S.C. § 846. The government dismissed the remaining counts against 

him. 
3

After Whitted’s guilty plea, his case proceeded to sentencing. In preparation for 

that step, the probation office prepared a Presentence Report. The report attributed 100 

grams of heroin and 448 grams of methamphetamine to him, leading to a base offense 

level of 28. Those figures were founded in part on drugs seized from Mountz but 

nevertheless attributed to Whitted because of the men’s conspiracy. The government 

endorsed the report’s quantity calculation. Whitted argued at sentencing that he should 

not be held responsible for the portion of the methamphetamine seized from Mountz. 1

At sentencing, one of the investigating agents testified that Mountz was Whitted’s 

methamphetamine supplier. The agent also testified that eight ounces of 

methamphetamine were seized from Mountz’s residence and that Whitted had purchased 

two ounces of methamphetamine from Mountz shortly before the seizure.2 There was 

also evidence regarding the amount of methamphetamine Whitted personally possessed at 

other points in time. Besides the purchases the agent actually made while undercover, he 

testified that on two occasions he saw Whitted with several additional ounces of 

methamphetamine and that, on two further occasions, Whitted discussed having bought a 

pound of methamphetamine.3 Lastly, the agent relayed statements from cooperating 

1 Whitted does not appeal the heroin quantity determination. The report also 

applied a two-level enhancement under U.S.S.G. § 3C1.2 for reckless endangerment 

during Whitted’s attempted flight from law enforcement. Whitted does not appeal that 

enhancement either.

2 There are approximately 28 grams in one ounce (precisely, 28.35 grams).

3

 There are approximately 454 grams in one pound (precisely, 453.6 grams). 

There is thus evidence in the record that, if credited, indicates Whitted was personally 

responsible for possessing at least 448 grams of methamphetamine, regardless of any 
4

witnesses who had seen Whitted purchase 10 to 20 ounces of methamphetamine from 

Mountz in the past. 

After some back and forth about the total amount of drugs in play, the Court found 

that “the people in the conspiracy are responsible for 448 grams of methamphetamine.” 

(App. at 41.) That finding was premised on the drugs that were seized from Mountz as 

well as those that Whitted personally distributed. It also appears to have been influenced 

by the Court’s belief that “whatever was distributed by any conspirator is attributable to 

all[.]” (App. at 17.) The Court proceeded to conclude that the relevant Sentencing 

Guidelines range was 100 to 125 months’ imprisonment, and, after choosing to vary 

downward from that range, ultimately imposed a sentence of 96 months. 

Whitted now appeals.

II. DISCUSSION4

In attributing to Whitted methamphetamine possessed by his co-conspirator, the 

District Court erred because it did not first make the necessary individualized inquiry to 

ensure that such attribution was proper. 

In United States v. Collado, we observed that, “[i]n most narcotics cases to which 

the Sentencing Guidelines apply, the defendant’s sentence depends to a great extent upon 

accomplice attribution. The District Court, however, made no findings with respect to 

that testimony.

4 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the District 

Court’s drug quantity determination for clear error. United States v. Yeung, 241 F.3d 

321, 322 (3d Cir. 2001).
5

the quantity of drugs deemed ‘relevant’ to the offense.” 975 F.2d 985, 990 (3d Cir. 

1992). The relevant quantity obviously includes the drugs the defendant himself 

distributed or possessed. But it can also include “drugs possessed, distributed, 

manufactured, sold, or otherwise ‘handled’ by persons other than the defendant[.]” Id. at 

991. That is sometimes called “accomplice attribution.” Id. at 990-91.

To justify accomplice attribution, a “stringent” standard must be met. Id. at 991. 

Under the Sentencing Guidelines, for a sentencing court to properly attribute an 

accomplice’s drugs to a defendant, the court must consider whether the accomplice’s 

drug activity was 1) “within the scope of the jointly undertaken activity[;]” 2) “in 

furtherance of that criminal activity[;]” and 3) “reasonably foreseeable in connection with 

that criminal activity[.]” U.S.S.G. § 1B1.3(a)(1)(B); see also Collado, 975 F.3d at 995.

And, in assessing those three factors, “it is not enough to merely determine that the 

defendant’s criminal activity was substantial. Rather, a searching and individualized 

inquiry into the circumstances surrounding each defendant’s involvement in the 

conspiracy is critical[.]” Collado, 975 F.3d at 995. 

The District Court here failed to undertake the searching and individualized 

inquiry required by Collado. After hearing testimony on the relevant drug quantity, the 

Court simply stated that “the people in the conspiracy are responsible for 448 grams of 

methamphetamine.” (App. at 41.) The Court failed to make factual findings regarding 

the three factors enumerated above. The absence of the Collado inquiry is perhaps 

explained by the District Court’s mistaken understanding that “whatever was distributed 

by any conspirator is attributable to all[.]” (App. at 17.) 
6

Whatever the reason for the failure to conduct the inquiry our precedent requires, 

the result is, at least on the record as it now stands, that the District Court’s attribution of 

Mountz’s drugs to Whitted was clearly erroneous. Without further development of the 

record, it is impossible to know how much, if any, of the methamphetamine possessed by 

Mountz could properly be attributable to Whitted.

III. CONCLUSION

For the foregoing reasons we will vacate and remand for resentencing.