filed: April 13, 1993; As Corrected April 29, 1993.
On Appeal From the United States District Court for the Eastern District of Pennsylvania. D.C. Crim. No. 91-00621-01.
Before: Becker, Greenberg and Weis, Circuit Judges.
Phillip McCutchen appeals from a judgment in a criminal case in which he was convicted of possession with intent to distribute nine grams of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1), and of distributing nine grams of crack within one thousand feet of an elementary school, in violation of 21 U.S.C. § 860.*fn1 McCutchen was arrested with 119 vials of a chunky white powder in his possession. Fifteen of these vials were later analyzed by a police chemist, who determined that they contained 1381 milligrams of a substance or mixture containing cocaine base.*fn2 From the weight of the substance in these 15 vials, the chemist projected that the total weight of the substance in all 119 vials was 9.866 grams. The district court, relying on the chemist's quantity determination, imposed concurrent sentences of 78 months imprisonment on each of the two drug counts.
The defendant argues that the court erred in including the weight of the substance in the 104 untested vials in the total quantity of drugs to be used to calculate his base offense level. The government responds that extrapolating from the random sample was sufficient to meet its burden of establishing the quantity of drugs by a preponderance of the evidence. We will affirm. In doing so, however, we make clear that when a defendant contests a quantity determination that is based on extrapolation from a test sample, the district court must make a finding that there is an adequate factual basis for the extrapolation and that the quantity was determined in a manner consistent with accepted standards of reliability.
The background facts are essentially uncontested. The defendant was arrested by undercover Philadelphia police officers who, during a routine patrol, observed the defendant give another man several vials in return for cash. The officers also saw what appeared to be the butt of a firearm stuck in the defendant's front waistband. When the officers approached and identified themselves, the defendant attempted to run but was stopped by one of the officers. During the pat down, the defendant dropped a clear plastic bag containing 119 vials, each of which had a clear cap and was filled with a chunky white powder.
At the sentencing hearing, a Philadelphia police chemist testified that the net weight of the substance in the 119 vials was 9.866 grams, a quantity he arrived at by extrapolating from the weight of the substance of the 15 vials that had been tested. While the chemist could not quantify what portion of the substance in each of the 15 vials was cocaine, the tests revealed that all 15 contained cocaine base. As to the process for selecting the 15 vials, the chemist's testimony was as follows:
THE COURT: How did you select these vials, sir? How did you decide which 15 to select?
ANSWER: Well the original four, I did select two which had been field tested. And I tested two others at random. The 11 that I did today, I just picked the first 11 that I got out of the bag.
THE COURT: You're the one that selected them?