Robert John Jansen, Jr. v. United States of America

ROBERT JOHN JANSEN, JR.,
Appellant

v.

UNITED STATES OF AMERICA

On Appeal from the United States District Court for the Middle District of Pennsylvania
Criminal Action No. 4:98-CR-240
(Honorable James L. McClure, Jr.)

Argued January 22, 2004

Before: ALITO and CHERTOFF, Circuit Judges, and DEBEVOISE, Senior District Court Judge

(Filed: May 21, 2004)

OPINION OF THE COURT

ALITO, Circuit Judge, concurring.

The issue presented in this case is one that should be resolved by the Sentencing Commission. The position taken by most of the courts of appeals regarding the application of U.S.S.G. § 1B1.3(a)(1) and (2) in this context is not easy to reconcile with the language of those provisions, and there seem to be reasonable policy arguments on both sides of the question. On the one hand, it may be argued that drugs possessed solely for personal use should not have the same sentencing consequences as those possessed for distribution. On the other hand, when it has been proven that a defendant possessed drugs with the intent to distribute, the difficulty of deciding whether some portion of those drugs was possessed solely for personal use may counsel against a rule requiring such a determination.

It seems likely that the Sentencing Commission has not considered this issue. If it has, it certainly has not made that clear. If it has not, it should. In view of the position taken by the great majority of the courts of appeals, I concur in this case, but I urge the Sentencing Commission to address the issue as soon as possible.

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