District Court Double-Counted Some Crack

U.S. v. Battle, 2013 WL 500643 (2/12/13) (Kan.) (Published) - The d. ct.'s previous finding that a defendant's offense involved at least 1.5 kilograms of crack did not bind the d. ct. to find the offense involved no more than 1.5 kilograms of crack in a subsequent § 3582(c)(2) proceeding. A 1.5 kilogram calculation would give the defendant an offense level of 34, lower than the one ascribed to him in his initial sentencing. But in this case the record did not support the d. ct.'s finding that the defendant was responsible for 3.4 kilograms which had triggered an offense level of 36. The d. ct. added 2 separate PSR calculations of drug quantity involving different co-defendants. Some of the co-defendants in one grouping were suppliers of crack to other co-defendants in the other grouping. So some portion of the drug quantity attributed to one group was part of the drug quantity attributed to the other group. So the d. ct.'s calculation double counted some of the crack. The 10th reaffirms the proposition that a determination of drug quantity should err on the side of caution. The 10th declines to decide whether a d ct. can engage in new fact-finding in a § 3583(c)(2) proceeding.