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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
NO. 92-7614
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHEILA SMITH and
BYRON VANDREA PHILLIPS,
a/k/a Vincent Andrian Phillips,
a/k/a Byron A. Phillips,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas
(January 28, 1994)
Before JOHNSON, WIENER and DeMOSS, Circuit Judges.
WIENER, Circuit Judge:
Defendants-Appellants Sheila Smith and Byron Vandrea Phillips
were convicted by a jury of three drug offenses in connection with
the sale of crack cocaine to an undercover police officer. Smith
and Phillips do not appeal their convictions, but both challenge
their sentences. They assert that the trial court incorrectly
applied the United States Sentencing Commission Guidelines (the

Guidelines)1 in calculating the quantity of crack cocaine to be
considered in their sentencing. We disagree with Smith and
therefore affirm her sentence, but we vacate Phillips' sentence and
remand for particularized findings and for resentencing consistent
with this opinion.

I
FACTS AND PROCEEDINGS
Testimony at trial produced the following facts: Smith and
Phillips were arrested during a Houston (Texas) Police Department
(HPD) undercover operation. Undercover police officers Donald
DeBlanc and Sharon Pouncy were driving by a house in Houston when
they were flagged down by defendant Phillips. Phillips asked,
"What do you need?" Officer DeBlanc said he was looking for "six
or seven rocks." Phillips replied, "I got what you need." At
Phillips' instruction, DeBlanc turned his vehicle around, got out
and went to the porch of the house, on which defendant Smith was
waiting. Smith opened her hand, displayed a number of crack
cocaine "rocks," and advised DeBlanc to pick out what he wanted to
buy. At the time, two men, Lorenzo Gene Cheney and Troy Adams,
were standing on the porch or just inside the open front door.
They too displayed rocks of cocaine base to DeBlanc. Phillips
vouched for Smith's cocaine, saying, "We have good rocks." DeBlanc
selected rocks constituting approximately 2 grams from Smith's hand
and handed her a $100 bill, the serial number of which had been
1United States Sentencing Commission, Guidelines Manual
(Nov. 1992).
2

previously recorded.
After the sale was completed, DeBlanc, who was wearing a
concealed microphone, gave the "bust" signal, and the raid team
officers waiting in a nearby van converged on the house. Smith,
Phillips, Cheney, and Adams fled into the house and were arrested.2
None of the four had drugs on their persons when they were taken
into custody, but police found "rocks" constituting 3.9 grams of
cocaine base on the floor of the front room in the house. An HPD
chemist testified that the cocaine on the floor was of a different
color and purity than the cocaine Smith sold to the undercover
officer, and on cross-examination the chemist agreed that the two
samples could have come from different sources. The marked $100
bill that DeBlanc had used to pay Smith was found on the floor near
the crack cocaine.
A jury convicted both Smith and Phillips on all three counts
charged: (1) conspiracy to possess with intent to distribute crack
cocaine; (2) possession with intent to distribute crack cocaine;
and (3) distribution of crack cocaine. The trial court held a
sentencing hearing for Smith and Phillips, during which the court
took into account the total amount of cocaine base seized from the
house, not just the 2 grams sold to the undercover officer.3
2Troy Adams and Lorenzo Cheney were not prosecuted by the
federal government and were not involved in the trial of
defendants Smith and Phillips in the case now on appeal.
Evidence at trial indicated that the State of Texas charged
Cheney with a parole violation and Adams with a state drug
paraphernalia violation.
3In the sentencing hearing the trial court referred to "all
7 grams" of cocaine found in the house, which included the 2
3

Holding Smith and Phillips accountable for the larger amount made
a significant difference under the Guidelines by producing a base
offense level of 26 rather than 20. In turn, the greater base
offense level resulted in longer sentences for both defendants;
that is the main issue in this appeal.4 Therefore a closer look at
the sentencing process is necessary.
Neither Smith nor Phillips testified at trial, and neither
defendant put on any evidence. The following additional facts,
which were considered by the trial judge in the sentencing process,
do not come from trial testimony but from the defendants'
presentence investigation reports (PSRs) and from a letter written
to the court by Phillips that was made a part of the record of the
grams sold to the undercover officer, the 3.9 grams found on the
floor near the $100 bill, and an additional 1 gram recovered from
a side room of the house. The 1 gram was excluded from evidence
at trial because there was no evidence to connect it to either
defendant. However, the base offense level in the Guidelines is
the same for 5.9 grams as it is for 6.9 grams, so it does not
matter for this appeal whether the 1 gram was included for
sentencing purposes. See U.S.S.G. � 2D1.1(c)(9) (providing that
an offense involving "at least 5 grams but less than 20 grams of
cocaine base" dictates a base offense level of 26). The parties'
arguments deal mainly with the 3.9 grams found on the floor and
whether that additional amount can be attributed to the
defendants.
4Other factors, such as prior criminal history, can affect a
defendant's range of potential sentences under the Guidelines,
but to illustrate the difference in Smith's case, the higher base
offense level meant that she would serve 63 to 78 months in
prison rather than 33 to 41 months. U.S.S.G. Ch.5 Pt.A,
Sentencing Table. Smith was actually sentenced to 66 months.
Phillips had a prior criminal history, which put him in a
category requiring a higher sentencing range. The trial court
sentenced Phillips to 114 months. However, if Phillips had been
held accountable only for 2 grams rather than 5.9 grams, his
sentencing range would have been 63 to 78 months. Id.
4

sentencing hearing.5
According to Smith's PSR, the house where the offense occurred
belonged to her mother. Smith said that Adams, Cheney, and
Phillips lived at the house. Smith was aware that this house was
being used as a "crack house." Smith said she bought the rocks
that she later sold to the undercover officer from a "source"
located down the street from the house, and that she was introduced
to her source by Lorenzo Cheney. Smith said that she decided to
sell the crack cocaine because she needed money to pay her light
bill. She had planned to give Phillips some of the crack cocaine
in exchange for his luring buyers to the residence. Smith said
that after Phillips flagged down the vehicle driven by the
undercover officers, Phillips informed both Smith and Cheney that
an individual was interested in buying some rocks. According to
Smith, the cocaine rocks found on the floor belonged to Cheney.
According to Phillips' PSR, he claims his only involvement in
the offense was telling the buyer where the crack cocaine could be
bought. He considers himself to have a drug problem and wants
treatment. In the letter written to the court, Phillips claims
5The court properly considered these facts even though they
were not testified to at trial, because a sentencing court may
properly consider any relevant information made available to it,
without regard to admissibility under the Rules of Evidence,
provided the information considered has sufficient "indicia of
reliability." United States v. Shacklett, 921 F.2d 580, 584 (5th
Cir. 1991); U.S.S.G. � 6A1.3(a). "Relevant conduct" attributed
to a defendant under the sentencing guidelines, such as conduct
of others committed during a joint criminal enterprise, does not
require proof beyond a reasonable doubt, only by a preponderance
of the evidence. United States v. Buckhalter, 986 F.2d 875, 879
(5th Cir.), cert. denied, 114 S.Ct. 203 (1993).
5

that "Troy Adams and I never had drugs. We were over there trying
to earn a piece of crack to smoke. Ms. Smith and Lorenzo Cheney
were the drug dealers." Phillips stated that Smith and Cheney were
competitors, and that the cocaine on the floor belonged to Cheney.
Phillips does not say that he helped Cheney. Phillips never
mentioned where he lived or who lived in the house where the
offense occurred.
II
ANALYSIS
Smith raises two issues on appeal. She claims that the trial
court erred by (1) basing her sentence on the larger amount of
cocaine, and (2) denying her a two-point reduction for acceptance
of responsibility. Phillips raises one issue, that the trial court
erred in basing his sentence on the larger amount of cocaine.
A.
Amount of Cocaine Considered in Smith's Sentencing
Smith insists that she did not possess the crack cocaine found
on the floor of the house, and that it should not have been
considered in her sentencing. She points to the following facts
drawn from trial testimony: (1) Four persons were arrested and
police officers admitted that they did not know who threw the
cocaine on the floor; (2) the cocaine on the floor differed in
color and purity from the cocaine Smith sold to the officer; and
(3) Cheney and Adams were also seen holding cocaine rocks on the
porch of the house but were not carrying any cocaine when they were
arrested minutes later.
The quantity issue was muddied in that, during the trial, both
6

sides mistakenly assumed that the government had to prove the
quantity of cocaine alleged in the indictment to obtain
convictions. In reality, a trial court is not bound by a jury's
findings as to the quantity of drugs, and a jury finding as to
quantity is unnecessary to conviction. The determination of the
quantity of drugs is a sentencing issue necessary only to calculate
a base offense level, and is a factual determination for the court
to make.6 But the indictment in this case, and the charge that
went to the jury, stated that Smith and Phillips possessed and
conspired to possess "in excess of five grams of cocaine." The
government theorized, and argued to the jury at trial, that Smith
threw the 3.9 grams of cocaine on the floor inside the house,
pointing to testimony that the $100 bill paid to her by DeBlanc was
found on the floor near the cocaine. After hearing this argument,
the jury deliberated on a charge which stated that, to find Smith
and Phillips guilty, the jury must conclude that they possessed and
conspired to possess in excess of five grams of cocaine base. The
jury returned verdicts of guilty for both defendants on all counts.
The district court, in its order denying the defendants' motion for
acquittal, recited the circumstantial evidence of the location of
the rocks and the money on the floor, and concluded that the jury
must have believed that Smith had thrown down the 3.9 grams of
cocaine. "[A]lthough there is a dispute as to whether there were
multiple sources of cocaine rocks, on the premises in question, on
6United States v. Jacobo, 934 F.2d 411, 416-17 (2nd Cir.
1991).
7

the relevant date, this jury believed that these Defendants were at
least in part responsible for the presence of all or part of the
drugs, and the Court agrees."
At the sentencing hearing four months later, all parties had
become aware that the quantity of drugs attributable to a defendant
is a sentencing issue rather than an element of the offense. At
that hearing, however, the trial court did not make a finding as to
whether Smith threw the 3.9 grams of cocaine on the floor.
Instead, it held Smith accountable for the larger amount of cocaine
under the theory of "relevant conduct" as set out in Guideline
� 1B1.3(a)(1)(B). That section states that when a defendant
participates in "jointly undertaken criminal activity,"7 the
sentencing judge should determine that defendant's base offense
level by looking not only at the defendant's conduct, but also at
"all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity." Id.
Under � 1B1.3, no matter which of the four people in the house
threw the cocaine on the floor, Smith can be held accountable for
that cocaine for sentencing purposes if the government proves that
(1) she agreed to participate jointly in drug sales with Cheney or
Adams or both, and (2) she could have reasonably foreseen that at
least 5.9 grams of cocaine would be involved in that joint
7"Jointly undertaken criminal activity" is defined as "a
criminal plan, scheme, endeavor or enterprise undertaken by the
defendant in concert with others, whether or not charged as a
conspiracy." U.S.S.G. � 1B1.3(a)(1)(B).
8

activity. As we stated in United States v. Evbuomwan,8 "[t]o hold
a defendant accountable for the crime of a third person, the
government must establish that the defendant agreed to jointly
undertake criminal activities with the third person, and that the
particular crime was within the scope of that agreement."9 It is
not enough to find only that Smith knew or could have foreseen that
others were selling drugs in the house. To hold her accountable
for drugs belonging to someone else, it is necessary first to find
that she agreed to undertake criminal activity jointly with the
others.10
Smith argued at sentencing that she was in competition with
Cheney and Adams for drug customers, and she claims that she did
not agree to participate in any joint enterprise with them. The
trial court, however, made a finding that Smith was accountable for
all the cocaine found in the house as a joint participant in the
drug sales occurring there:
The Court's justification for that [finding], for
purposes of your appellate scrutiny, is essentially that
I think it's not persuasive to the Court that merely
because she was in competition with others there at the
same time, that that defies a conspiracy mentality in the
sense that all of them were there and all of them were
jointly participating in the sale of drugs. Whether one
wanted the sale as opposed to another, does not belie, in
this Court's perception, some accountability on the part
of this defendant for any of the drugs in the house, not
just the drugs she brought to the residence.
Given the deferential standard of review we afford a
8992 F.2d 70 (5th Cir. 1993).
9992 F.2d at 74.
10Evbuomwan, 992 F.2d at 74.
9

sentencing court,11 our examination of this case and the applicable
law leads us to conclude that the court's finding here is not
clearly erroneous. The government in this case has met its burden
of establishing, by a preponderance of the evidence, that Smith
agreed to engage in jointly undertaken criminal activity with
Cheney and Adams.12 Although there is no evidence that Cheney,
Adams, Smith and Phillips ever pooled their profits, loaned each
other money, or shared each others' drugs, the record reveals that
Cheney told Smith where to obtain crack cocaine by introducing her
to his source. Smith went to the house owned by her mother knowing
that Cheney and Adams might be there, and knowing that the location
had the reputation of being a "crack house." On the day that the
undercover officers made their drug buy, Smith, Phillips, Cheney,
and Adams were using the house as a common location for drug use
and sales. Smith stated that Phillips told both her and Cheney
that a potential buyer was approaching. In essence, the house had
become a very rudimentary shopping center or flea market for crack,
replete with Phillips, its "barker," and the friendly competitors
who as a whole created a marketing site greater than the sum of its
parts. The presence of multiple, part-time pushers and a larger
supply for users produced a marketing symbiosis that far outweighed
its minor competitive aspect. These facts support a finding of
11A district court's findings about the quantity of drugs on
which a sentence should be based are factual findings which we
review for clear error. United States v. Palomo, 998 F.2d 253,
258 (5th Cir.), cert. denied, 114 S.Ct. 358 (1993); United States
v. Mitchell, 964 F.2d 454, 457 (5th Cir. 1992).
12See Evbuomwan, 992 F.2d at 74.
10

jointly undertaken criminal activity.
Regarding the foreseeability prong of the test, the trial
court stated that Smith "knew full well that [her mother's]
residence was being used as a crack house." Smith was present on
the porch when Cheney and Adams displayed rocks of cocaine in their
hands, and because she used Cheney's source to buy her cocaine, she
could have easily foreseen that Cheney might possess an additional
3.9 grams of cocaine.
Thus the trial court's finding that Smith was accountable for
all the cocaine found in the house is not clearly erroneous.
Smith's base offense level was thus properly based on 5.9 grams of
cocaine. For these reasons, we affirm Smith's sentence.
B. Denial of Reduction for Smith's Acceptance of Responsibility
Smith argues that the district court erred when it denied her
a two-level reduction for acceptance of responsibility. U.S.S.G.
� 3E1.1(a) provides: "If the defendant clearly demonstrates
acceptance of responsibility for his offense, decrease the offense
level by 2 levels." The commentary to that section provides:
In determining whether a defendant qualifies under
subsection (a), appropriate considerations include ...
truthfully admitting the conduct comprising the
offense(s) of conviction, and truthfully admitting or not
falsely denying any additional relevant conduct for which
the defendant is accountable under � 1B1.3 (Relevant
Conduct). 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
11

responsibility.13
That commentary requires Smith to admit, or at least not to
deny falsely, all relevant conduct in order to receive the 2-point
reduction for acceptance of responsibility. True, Smith admitted
her relationships with Cheney, Adams, and Phillips; admitted the
fact that Cheney told her where to get the cocaine; and admitted
that the house belonged to her mother. But even though Smith
admitted the conduct comprising the offense of conviction, she
steadfastly refused to admit any connection, even vicarious, with
the additional cocaine found on the floor in the house. In light
of our holding that Smith is accountable for the additional
cocaine, the district court was not obliged to grant the two-point
reduction. Although we may not have reached the same conclusion,
the heightened deference we accord the sentencing court on review
persuades us not to disturb the district court's decision to deny
the two-point reduction for acceptance of responsibility.14
C. Amount of Cocaine Considered in Phillips' Sentencing
Phillips raises the same issue as did Smith regarding drug
quantity. He argues that he did not possess the 3.9 grams of
cocaine on the floor in the house and that he did not agree to
13U.S.S.G. � 3E1.1, comment. (n.1(a)).
14"[T]he determination of the sentencing judge is entitled
to great deference on review." U.S.S.G. � 3E1.1, comment. (n.5).
The sentencing court's factual determinations with regard to
acceptance of responsibility, therefore, are entitled to even
greater deference than that accorded the court under a clearly
erroneous standard of review. United States v. Mourning, 914
F.2d 699, 705 (5th Cir. 1990); United States v. Roberson, 872
F.2d 597, 610 (5th Cir.), cert. denied, 493 U.S. 861 (1989).
12

participate in any joint criminal activity with Cheney and Adams.
Phillips' case for sentence vacatur and remand is stronger than
Smith's. The government did not produce any evidence to prove that
Phillips agreed to a joint criminal enterprise. More importantly,
there is no express finding by the district court that Phillips was
acting in concert with anyone other than Smith. Phillips'
presentence report does not state that Phillips lived in the house;
it does not identify the source of the cocaine; it does not
indicate that Phillips agreed to participate in any way with Cheney
or Adams, or that he helped either of them in any way. Phillips'
PSR merely states that police seized 7 grams of cocaine from the
house, and therefore 7 grams would be considered in Phillips'
sentencing.

The factual contents of Smith's PSRSQon the basis of which the
trial court found joint enterprise as to herSQcannot be used
against Phillips.15 In United States v. Berzon, the First Circuit
reversed Berzon's sentence because the trial court evidently
considered testimony adverse to Berzon given at a codefendant's
sentencing hearing. It is well-settled, stated the Berzon court,
that "a defendant has a due process right to be sentenced upon
information which is not false or materially incorrect."16 To
ensure this right, Federal Rule of Criminal Procedure 32 allows a
defendant to see the factual allegations in his presentence report
15See United States v. Berzon, 941 F.2d 8, 18 (1st Cir.
1991).
16Id.
13

and to have an opportunity to contest their accuracy.17 But
Phillips presumably was not permitted to see or to respond to
Smith's presentence report; there is a general presumption that
courts will not grant third parties access to the presentence
reports of other individuals.18 Consequently, for the sentencing
court to consider information about Phillips from Smith's PSR
without at least giving Phillips the opportunity to see it and
contest its accuracy would clearly be improper.19
In this case, Phillips specifically objected to the trial
court's consideration of the greater amount of cocaine in his
sentencing. The trial court made no specific findings that
Phillips was involved in any jointly undertaken criminal activity,
but merely adopted the findings of Phillips' presentence report
without commenting on them. This was not sufficient. When a
defendant objects to particular findings in the presentence report,
the sentencing court must resolve the specifically disputed issues
of fact if it intends to use those facts as a basis for its
sentence.20 Before the trial court in this case could sentence
Phillips based on the additional cocaine, it must have made
specific findings, supported by a preponderance of the evidence,
17Id.
18United States v. Blanco, 884 F.2d 1577, 1578 (3rd Cir.
1989).
19Berzon, 941 F.2d at 20-21.
20United States v. Ponce, 917 F.2d 846, 848 (5th Cir. 1990),
cert. denied, 499 U.S. 940 (1991); United States v. Rodriguez,
897 F.2d 1324, 1327 (5th Cir.). cert. denied, 498 U.S. 857
(1990).
14

that Phillips agreed to a jointly undertaken criminal activity with
Smith and Cheney or Adams involving the greater amount of cocaine,
and that Phillips could have reasonably foreseen the amount of
cocaine that would be involved in such a joint undertaking.21
Even though we affirm Smith's sentence, we are compelled to
reverse Phillips' sentence in light of the lack of necessary
evidence and findings. Phillips was convicted of conspiracy with
Smith, but this does not necessarily mean thatSQfor sentencing
purposesSQhe is accountable for the same quantity of drugs, under
relevant conduct, as is Smith. A conviction for conspiracy does
not automatically mean that every conspirator has foreseen the
total quantity of drugs involved in the entire conspiracy.22 That
Phillips agreed to conspire with Smith to distribute 2 grams of
cocaine is indisputable, but the sentencing court made no finding
that Phillips agreed to conspire with Cheney or Adams with regard
to any amounts of cocaine they possessed.23 Absent a finding of
such an agreement, it is irrelevant whether Phillips knew or
foresaw that greater amounts of cocaine were in the house.24
Phillips' situation is controlled by an illustration in the
21United States v. Evbuomwan, 992 F.2d 70, 74 (5th Cir.
1993).
22United States v. Webster, 960 F.2d 1301, 1309 (5th Cir.),
cert. denied sub. nom. Nelson v. United States, 113 S. Ct. 355
(1992); United States v. Puma, 937 F.2d 151, 159-60 (5th Cir.
1991), cert. denied, 112 S. Ct. 1165 (1992).
23See Ponce, 917 F.2d at 849; United States v. Rivera, 898
F.2d 442, 445-46 (5th Cir. 1990).
24Evbuomwan, 992 F.2d at 74.
15

Guidelines' commentary to � 1B1.3:
Defendant R recruits Defendant S to distribute 500 grams
to 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 that
500 gram amount (under subsection (a)(1)(A)), rather than
the much larger quantity imported by Defendant R.25
This illustration demonstrates that the Sentencing Commission
did not intend to hold persons who assist a drug dealer in one
transaction responsible for all the drugs sold or possessed by that
dealer.26 From the record we can tell nothing more than that
Phillips conspired with Smith for a limited purpose, to assist in
finding a customer for her on one occasion in exchange for some
crack cocaine for his own use. There is no finding by the trial
court that Phillips agreed to participate any further in Smith's
drug activities or to participate in any activity with Cheney or
Adams. In the absence of such findings, we have no choice but to
vacate Phillips' sentence and remand for particular findings, and
for resentencing based on such findings.
D. Proximity of Offenses to a School
The drug transaction for which Phillips and Smith were
convicted occurred within 1,000 feet of M.C. Williams Middle
School, which brings into play a federal sentencing enhancement
25U.S.S.G. � 1B1.3, comment. (n.2(c)(7)).
26See United States v. Maseratti, 1 F.3d 330, 340 (5th Cir.
1993).
16

statute, 21 U.S.C. 860(a).27 At sentencing in this case, the trial
court agreed that the technical requirements of the statute had
been met. However, the court did not impose the statute's
additional penalties, and it did not impose the base offense level
increase called for by U.S.S.G. � 2D1.2 when a drug offense
directly involves a protected location. The court stated that
because the drug transaction occurred in the evening after school
hours and did not involve school children, the sentence enhancement
should not apply. This issue was not appealed by the government
and is not before us. But as the trial court may reconsider the
issue at resentencing,28 we take this occasion to point out that the
resolution of this issue below was contrary to currently settled
law in this Circuit. The "drug-free school zone" statute has been
interpreted strictly; drug offenses within 1,000 feet of a school
make the defendant subject to the increased penalties, regardless
of whether the offense had anything to do with the school, school
27The statute provides: "Any person who violates section
841(a)(1) ... by distributing, possessing with the intent to
distribute, or manufacturing a controlled substance ... within
one thousand feet of, the real property comprising a public or
private elementary, vocational or secondary school ... is ...
subject to (1) twice the maximum punishment authorized by section
841(b) of this title." 21 U.S.C. � 860(a). The provision also
mandates a minimum sentence of one year.
28"In the interest of truth and fair sentencing a court
should be able on a sentence remand to take new matter into
account on behalf of either the government or the defendant."
United States v. Kinder, 980 F.2d 961, 963 (5th Cir. 1992), cert.
denied, 113 S.Ct. 2376 (1993); United States v. Sanchez-Solis,
882 F.2d 693, 699 (2d Cir. 1989).
17

house, school children, or the like.29
III
CONCLUSION
For the foregoing reasons, we AFFIRM Smith's sentence, but
VACATE Phillips' sentence and REMAND for findings and resentencing
in accordance with this opinion.
DeMoss, Circuit Judge, dissenting in part and concurring in part:
I readily concur in the language and conclusions of Parts II.C
and D of the foregoing opinion, but I am unable to concur with the
language or conclusions in Parts II.A and B, and I write this
dissent to express my disagreement with those provisions.
A. Amount of Cocaine Considered in Smith's Sentencing.
I cannot agree with the conclusion made by the trial judge and
majority opinion that Smith is responsible not only for the 2 grams
of cocaine she sold to the undercover agent, but also for the 3.9
grams of cocaine found on the floor of the house, for the following
reasons:
(a)
The trial judge's articulation of a finding about
29See United States v. Echevaria, 995 F.2d 562, 565 (5th
Cir. 1993) (enhancement upheld on facts nearly identical to this
case); United States v. Wake, 948 F.2d 1422, 1432-33 (5th Cir.
1991) (holding that Congress intended a "strict liability
approach" to 21 U.S.C. 860), cert. denied, 112 S.Ct. 2944 (1992).
Wake has been cited with approval by two other Circuits. See
United States v. McDonald, 991 F.2d 866, 869 (D.C. Cir. 1993);
United States v. Rodriguez, 961 F.2d 1089, 1092 (3d Cir. 1992).
18

"jointly undertaken activity" quoted verbatim in
the majority opinion is only conclusional. If you
read it carefully, you will see that the judge is
saying that "I find jointly undertaken activity
because there was jointly undertaken activity."
Inferentially at least, if not expressly, the trial
judge found that Smith and Cheney were making sales
in competition with each other. In my book, by
definition, competitors are not engaged in a
jointly undertaken activity. The trial judge
attempted to talk himself around the concept of
competition by saying that, in his view,
competition would not "def[y] a conspiracy
mentality." I am at a loss to understand the
significance of a "conspiracy mentality." Whether
or not a person may have a "mental inclination" to
enter into conspiracies does not establish that any
"conspiracy" was in fact was entered into.
(b)
While the trial judge purported to rely on findings in
the presentence report of Smith, the probation officer in
fact made no findings of any kind regarding "jointly
undertaken activity" with Cheney and Adams. The sole
rationale offered by the probation officer in his
original report for the quantity of drugs involved is the
following sentence:
"Case investigative materials established
that agents seized approximately 7 grams

of cocaine base in the instant case."
In response to objection raised by Smith, the probation
officer attempted to "maintain his position" by
contending the following:
(1)
He claimed that the "undercover police officer"
disclosed that the crack cocaine found near the
marked $100 bill belonged to the defendant.
However, the "undercover police officer" testified
under oath at trial that after buying the 2 grams
from Smith, he gave the bust signal, walked out to
his van and left the premises; the officer
therefore could not have had any first-hand
knowledge or information whatsoever regarding the
ownership of the cocaine found on the floor of the
house;
(2)
The probation officer also argues that the jury
verdict found Smith guilty of conspiracy with
Phillips to possess with intent to distribute "in
excess of 5 grams of cocaine," thereby rendering
irrelevant her argument that she only possessed the
2 grams she sold to the undercover police officer.
It is settled law in this Circuit, though, that the
allegation of a quantity of a controlled substance
is not an essential element of the crime, therefore
a jury finding in that regard is mere surplusage;
and
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(3)
Finally, the probation officer states that Smith
was being held accountable for the full 7 grams of
cocaine since it was part of the conspiracy she
jointly undertook with others and was reasonably
foreseeable by her. However, that conclusion is
just like the trial judge's conclusion, totally
unsupported by reference to any facts.
(c)
The majority opinion recognizes that there was no
evidence that Cheney, Adams, Smith and Phillips ever
"pooled their profits, loaned each other money or shared
each other's drugs." In addition, there is no evidence
of any kind either in the trial transcript or in the
presentence report which shows that Cheney, Adams, Smith
and Phillips ever pooled any money to pay for rent,
utilities, food or other expenses connected with the
house at which the sale occurred.
(d)
The commentary to U.S.S.G. � 1B1.3, Note 2(c)(6) provides
as follows:
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
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undertaking with them because those sales were in
furtherance of the jointly undertaken criminal
activity and reasonably foreseeable in connection
with that criminal activity.
In my view, Note 2(c)(6) is relevant and controlling as
to the facts of this case regarding whether or not
jointly undertaken activity had occurred. Surprisingly,
neither the trial court, the probation officer nor the
majority opinion addresses this note. The meager facts
cited by the majority opinion to attempt to support the
trial court's conclusion of "jointly undertaken activity"
are rendered totally insufficient by Note (c)(6).
Sharing a common source of supply and having knowledge of
others selling the same type of drug in the same
geographic area are facts which the first sentence of
Note (c)(6) expressly assumes and finds inadequate to
support a determination of jointly undertaken activity.
As indicated by the third sentence of Note (c)(6), it is
"pooling [their] resources and profits" which is the key
ingredient that determines when several individual drug
sellers are engaged in a jointly undertaken activity.
There is nothing in this case that supports a finding of
"pooling resources and profits." The majority attempts
to embellish the meager facts upon which it relies with
words like "rudimentary shopping center," "flea market
for crack," "barker" and "marketing symbiosis," but these
terms find no support whatsoever in the trial record or
in the presentence report, and are simply an exercise of
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poetic license by the majority.
For the foregoing reasons, I think the trial judge clearly
erred in concluding that there was any "jointly undertaken criminal
activity" between Smith and either Cheney or Adams which would make
Smith accountable for the quantities of cocaine found on the floor
of the house after the raid. Absent a "jointly undertaken
activity," the second aspect of "foreseeability" is irrelevant. In
my view, Smith's base offense level should have been based only on
the 2 grams of cocaine she sold to the undercover officer.
B.
Reduction for Smith's Acceptance of Responsibility.
From my reading of the record in this case, I am satisfied
that early on, Smith attempted to plead guilty to the offense of
selling the 2 grams of cocaine to the undercover police officer.
This case is one of those "rare situations" when a defendant is
convicted after a trial instead of after a plea of guilty but
should still be entitled to a reduction for acceptance of
responsibility. See U.S.G.G., � 3E1.1, Comment Note 2. In her
objections to her presentence report, Smith states that she offered
to plead guilty to the 2 grams and that the only reason her case
went to trial was the fact that the government had incorrectly
assumed that the quantity of cocaine was an element of the offense.
At the sentencing hearing, Smith's counsel argued:
"She has acknowledged her guilt to me from the outset,
and we attempted to plead guilty, but every effort to
plead guilty required a stipulation to all the cocaine.
It simply wasn't true."
Smith was put into a no-win situation. At the time she was
attempting to plead guilty, the government expected her to admit,
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as an element of the offense, that she herself possessed 7 grams of
cocaine. During the sentencing hearing, the trial court ac-
knowledged that Smith had admitted her guilt for the 2-gram
transaction but refused to give the � 3E1.1(a) reduction, citing
concerns that Smith knew of the drug activity at her mother's
house, that she was the mother of three children and that she
possessed some medical training. I recognize, of course, the
deferential standard of review given to sentencing judges on this
issue, but I am convinced that the trial judge's decision to deny
the reduction for acceptance of responsibility was at least in part
based on the erroneous (in my view) finding of joint activity. The
denial, therefore, should in my view be reconsidered as part of the
reconsideration of the quantity issue.
In conclusion, I feel compelled to make some comments about
the anomalous position in which this case is left as a result of
the majority opinion. First of all, Smith, who had absolutely no
criminal history points, gets her sentence affirmed based an
offense level using more than 5 grams of cocaine as the principal
ingredient. On the other hand, Phillips, who had a criminal
history category of Part V, gets his sentence reversed, and under
the holdings of Part II(c), with which I concur, his offense level
will be determined by the quantity, 2 grams, actually involved in
his conspiracy with Smith. We are faced first with the anomaly,
then, of two defendants convicted under the same counts of the
indictment whose offense levels will be determined by two different
quantities. The second anomaly arises from the fact that on
wjl\opin\92-7614.dis
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resentencing Phillips will be susceptible to the enhanced penalties
under 21 U.S.C. � 860(a), as he clearly should be, but the clear
error of the trial judge in refusing to apply � 860(a) in the
determination of Smith's sentence will be left to stand. I have
always understood that one of the primary purposes of the
Sentencing Guidelines was to ensure that individuals who engage in
the same or similar criminal conduct will have their sentences
determined on the same or similar theories. I am disappointed that
I was unable to persuade my colleagues that the way to avoid these
anomalies was to reverse the sentence of Smith as well and place
both defendants back before the trial judge for a resentencing
using the same quantity and the application of � 860.
wjl\opin\92-7614.dis
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