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Seventh Circuit Explains ‘Conduct That is Part of Common Scheme or Plan’ for Sentencing Purposes

On January 22, 2018, Tom Lewis was released from prison. Five days later, he was in Wisconsin calling a methamphetamine (“meth”) supplier in California on behalf of Roberta Draheim. The two planned to purchase just under 50 grams of meth, and Lewis gave $400 to Draheim for his half of the purchase. Unbeknownst to Lewis, Draheim was under surveillance, and her phones were tapped. Police intercepted the package of meth when it was shipped. It contained just over half of what they had ordered: 28.6 grams of nearly pure meth or “ice.” On February 4, 2018, while still awaiting delivery of the package of ice, Draheim purchased just under two grams of mixed “street” meth from Lewis. The next day, police arrested Draheim, and Lewis was arrested three days later.

Lewis was indicted for meth distribution under 21 U.S.C. §§ 841, 846 which carry a maximum penalty of 20 years in prison. But in February 2019, he entered into a plea agreement with the Government to resolve his case by pleading guilty to a lesser charge of using a telephone to facilitate a drug crime in violation of 21 U.S.C. § 843(b) (which carries a maximum penalty of four years in prison), and the ice distribution charge was dismissed. The guilty plea was related solely to Lewis’ selling of the two grams of meth to Draheim and completely unrelated to the purchase of the 28.6 grams of ice.

When the probation office prepared Lewis’ presentence report (“PSR”), it included the 28.6 grams of ice in addition to the two grams of meth when calculating his base offense level to arrive at a Guidelines range of 70 to 87 months. Without the 28.6 grams of ice, Lewis’ Guidelines range would have been 15 to 21 months. Lewis objected.

The U.S. District Court for the Western District of Wisconsin overruled the objection and adopted the PSR’s recommendation on the grounds that Lewis used a phone in both instances for possession and distribution of meth, which made the ice purchase “a continuation of the defendant’s practice of obtaining methamphetamine and repackaging it for sale.” This made it part of the same course of conduct or common scheme, meeting the definition of relevant conduct. Lewis was sentenced to 36 months in prison, and he appealed.

The Seventh Circuit observed that when calculating a defendant’s base offense level under the Guidelines “the sentencing court must consider types and quantities of drugs not specified in the counts of conviction but that were part of the same course of conduct or common scheme or plan as the convicted offenses.” United States v. Ortiz, 431 F.3d 1035 (7th Cir. 2005). “For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3(a)(2), cmt. n. 5(B)(i). They are part of the same course of conduct if they are an ongoing series of offenses. § 1B1.3(a)(2), cmt. n. 5(B)(ii).

“[T]he relevant conduct or aggregation rule grants the government a fearsome tool in drug cases....” United States v. White, 519 F.3d 342 (7th Cir. 2008). It permits prosecutors to indict on relatively minor offenses and then seek enhanced sentences later by asserting the defendant has committed other more serious crimes for which he was not prosecuted. Ortiz. For that reason, the Seventh Circuit has recognized important limits on prosecutorial discretion regarding the use of relevant conduct to avoid abuse. Id. Furthermore, relevant conduct does not encompass offenses that are similar in kind to the offense of conviction if they do not bear the required relationship. Id. The mere fact that a defendant has engaged in other drug transactions won’t justify treating those transactions as relevant conduct for sentencing purposes. United States v. Purham, 754 F.3d 411 (7th Cir. 2014). There is no relevant conduct when the offenses involve different drugs, a smaller scale operation, and significantly smaller drug quantities. Ortiz.

The Court determined that Lewis’ use of a phone in both transactions was not a compelling connection to meet the commonality requirement. Further, the Court rejected the assertion that the ice purchase was a “continuation” of any common practice by Lewis when he had just been released from prison. And the ice purchase involved a significantly larger quantity of pure meth than did the sale of the mixture. Also, in the former transaction, Lewis and Draheim were the purchasers of meth from a national distributor located across the country, but in the latter transaction, Lewis was the seller of a small amount to Draheim in a local street-level sale.

Finally, the Court was mindful of the “limits” on the prosecutor’s discretion in Ortiz, suggesting the enhanced sentence based on relevant conduct was abusive because the prosecutor had secured Lewis’ guilty plea to a lesser offense by dismissing the charge related to the ice but then sought the enhanced sentence based on the conduct related to the ice.

The Court concluded that the district court should not have added Lewis’ dismissed drug quantities to his base offense level as relevant conduct, and its calculation to the contrary constituted error.

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Related legal case

United States v. Draheim



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