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United States Sentencing Guidelines: Determining The Correct Offense Level and Section 1B1.3(a) – Preponderance of the Evidence


Plaintiff – Appellee,


O’BENSON SESERE, a/k/a O.B., a/k/a Obenson Sesere,

Defendant – Appellant.

Decided February 7, 2011 Fourth Circuit Court of Appeals

Issue : Whether the District Court had properly interpreted Section 1B1.3(a) of the United States Sentencing Guidelines in assessing the appropriate offense level for the possession and sale of crack cocaine.

Holding : The District Court’s assessment of the offense level and its interpretation of Section 1B1.3(a) of the United States Sentencing Guidelines was not clearly erroneous.

Facts :

Sesere was charged with conspiracy to distribute fifty grams or more of crack cocaine, plus seven counts of distribution and possession with intent to distribute. At Sesere’s trial, the prosecution presented multiple witnesses and established that Sesere was a street-level crack dealer on the Block, and that he also worked with other drug dealers to provide security for illicit drug businesses.

On August 19, 2009, the jury returned a guilty verdict against Sesere on all four offenses. Sesere thereafter filed motions for judgment of acquittal and a new trial, pursuant to Federal Rules of Criminal Procedure 29 and 33.

Rule 29 provides that, at both the close of the evidence and after the jury returns its verdict, the court may consider whether the evidence is sufficient to sustain a conviction.

Rule 33 provides that the court may grant a new trial in the proper circumstances.

Sesere’s presentence report (the “PSR”) recommended that Sesere be attributed a total of 1,132 grams of crack cocaine -for a base offense level of 34 under the 2008 Guidelines – and that the court apply an advisory Guidelines range of 168 to 210 months. Sesere appeared for sentencing on November 12, 2009, and his lawyer objected to the quantity of crack being attributed to him in the PSR.

Sesere argued that the only evidence on drug quantity had been presented at trial by Joseph, and that the evidence supported the proposition that Sesere had possessed only ten to fifteen ounces (or approximately 280 to 420 grams) of crack. Pursuant to section 2D1.1(c)(3) of the Guidelines, the possession of at least 500 grams but less than 1.5 kilograms of crack warrants a base offense level of 34. If Sesere had been attributed a quantity of crack of at least 150 but less than 500 grams, the provisions of section 2D1.1(c)(4) would have applied, yielding a base offense level of 32. Pursuant to a base offense level of 32 and a criminal history category of II (as determined by the PSR), Sesere’s advisory Guidelines range would have been reduced to 135 to 168 months, rather than 168 to 210 months.

After considering the drug quantity issue and the relevant evidence, the sentencing court overruled Sesere’s objection and attributed to him at least 500 grams of crack cocaine, the threshold quantity necessary for a base offense level of 34.

The court concluded that Sesere “certainly understood that the endeavor, the collaboration between the group [Sesere and his coconspirators], was responsible for at least 500 grams of crack cocaine.

Legal Analysis and Discussion : review de novo a district court’s denial of a motion for judgment of acquittal. See United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). In our review, “we are obliged to sustain a guilty verdict if, viewing the evidence in the light most favorable to the Government, it is supported by “substantial evidence'” – substantial evidence being that which a “reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.

On the other hand, we review a trial court’s evidentiary rulings for abuse of discretion. See United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007). Finally, factual determinations underlying a court’s imposition of sentence must be supported by a preponderance of the evidence, and are not to be overturned unless they are clearly erroneous.

Section 1B1.3(a) of the Guidelines provides that the base offense level “shall be determined on the basis of” the offense of conviction and relevant conduct. In making that determination, the “[s]entencing judge[] may find facts relevant to determining a Guidelines range by a preponderance of the evidence, so long as that Guidelines sentence is treated as advisory and falls within the statutory maximum authorized by the jury’s verdict.

In terms specific to a § 846 conspiracy conviction, the drug quantity attributable to a defendant is the quantity involved in the conspiracy that was reasonably foreseeable to the defendant. See USSG § 1B1.3(a)(1).

At sentencing, the district court found that Sesere “certainly understood that the endeavor, the collaboration between the group [Sesere and his coconspirators], was responsible for at least 500 grams of crack cocaine.

At trial, the prosecutors presented at least eight witnesses who testified about Sesere’s drug dealing activities on the Block. Joseph, for example, confirmed that between January and June of 2006 he had frequently sold Sesere 84 grams of crack per week, totalling more than 280 to 420 grams. Sloane, Sesere’s girlfriend, testified that Sesere had “a few times” made $2000 in a day selling crack, and up to $5000 on a good day.

Finally, Mannot Lusca, a drug dealer on the Block, related that on two or three occasions Sesere had pooled his money with other drug dealers to buy “bricks” of cocaine (a brick being worth approximately $14,400 dollars). Put simply, the sentencing court’s finding that at least 500 grams of crack cocaine was properly attributable to Sesere for sentencing purposes was not clearly erroneous.