In United States v. Santos, Case No. 98-1344 (10^th Cir., September 8, 1999), the Tenth Circuit issued a significant decision with respect to the sentencing scheme established for federal drug cases in 21 U.S.C. ß 841(b). In this case, the Tenth Circuit overruled previous precedent in holding that the United States sentencing guideline principles regarding relevant conduct, which play a significant role in calculations within the sentencing guideline schemes, do not play a role in determining the applicable minimum and maximum sentencing range as set forth in 21 U.S.C.ß 841(b).

The facts in the case were that the defendant, Fernando Santos, was indicted for trafficking heroin on four separate occasions, involving 25, 25, 49.8 and 74.92 grams of heroin. He pled guilty to one count of distributing 25 grams in exchange for dismissal of the remaining counts and the government´s promise to impose a sentence at the lowest end of the applicable guideline range. The plea agreement specifically referred to ß 841(b)(1)(c), which applies to offenses involving less than 100 grams of heroin and consistent therewith noted a 20-year maximum but no mandatory minimum sentence. No reference was made in the plea agreement to ß 841(b)(1)(B), which specifies minimum and maximum sentences of five and 40 years respectively for offenses involving at least 100 grams of heroin.

The plea agreement also calculated the anticipated sentencing range under United States sentencing guidelines from the cumulative amount of heroin seized in the four transactions cited in the indictment (stipulated as relevant conduct under U.S.S.G. ß 1(b)1.3). The agreement assumed a base offense level of 26, which was reduced by three points for defendant´s acceptance of responsibility. Under the pertinent criminal history category, the result was a range of 57-71 months. Again there was no mention of any statutory minimum sentence effecting this guideline range.

In the course of defendant´s plea hearing, the government introduced the idea of using the relevant conduct quantity to invoke the five-year mandatory minimum sentence in ß841(b)(1)(B). Defense counsel argued that this aggregate of both offense and collateral conduct was relevant only to the guideline calculations for which it had been developed and that the statutory sentencing directives turned solely on the violation underlying the conviction.

At sentencing, the district court held that the statutory minimum applied, leaving a sentencing range of 60-71 months. The court then imposed a 60-month sentence stating its understanding that it was bound by the statutory minimum contained in ß841(b)(1)(B).

On appeal, the Tenth Circuit reversed and remanded for re-sentencing. The court started off its analysis by noting that all other circuits to decide the issue have held that the drug quantities triggering the mandatory sentences prescribed in ß841(b), are determined exclusively by reference to the offense of conviction. The court noted guideline constructs such as relevant conduct, which permit broad ranging consideration of collateral matters, are limited to their designed role in guideline range calculations and do not effect the independent determination of the statutory sentencing directives.

The court noted that this approach rested upon the plain language of the statute. Those subsections of ß841(b), which establish mandatory sentences for various drug amounts do so by reference solely to the offense of conviction: "In the case of a violation of subsection (a) of the section involving [a specified drug quantity]... such person shall be sentenced [as prescribed]." (See ß841 (b)(1)(A), (B)). The court went on to note that nothing in the language of the statute therefore suggested consideration of drug quantities collateral to the underlying ß841(a) violation. Therefore, the court concluded that ß 841(b) did not endorse a relevant conduct concept for purpose of determining whether a mandatory minimum sentence would be applicable.

The Tenth Circuit´s decision in the United States v. Santos case is significant in that prior to this decision prosecutors and defense counsel may have believed that relevant conduct would be used for calculating total quantities for purposes of determining what mandatory minimum and statutory maximum sentences would be imposed under 21 U.S.C. ß 841(b). Santos clarifies that the Tenth Circuit will follow the majority of other circuits in concluding that the relevant conduct analysis is a separate and distinct inquiry from the analysis that the court must conduct pursuant to 21 U.S.C. ß 841

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