United States v. Mark Wayne Kelso

Mark Wayne Kelso pleaded guilty to conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. § 841 (a)(1) and § 846. He appeals the sentence imposed under the Sentencing Guidelines (“Guidelines”). We have jurisdiction under 28 U.S.C. § 1291 and reverse.

I. Facts

On December 7, 1989, Border Patrol agents requested to search a pickup driven by codefendant Juan Muro-Torres (“Muro-Torres”) after police noticed the truck’s ignition switch was removed and Muro-Torres and his passenger, Kelso, appeared to behave nervously. Muro-Torres consented to the search and behind the driver’s seat police discovered two bags containing 963.20 grams of methamphetamine, a loaded semi-automatic pistol, and assorted ammunition. Agents also found a notepad and receipt book belonging to Kelso, though there is no evidence whether these items were found with the drugs or elsewhere.

Both Muro-Torres and appellant admitted knowledge of the drugs, but each asserted that he was accompanying the other to a narcotics buy and steadfastly denied knowledge of the weapon. Appellant says he agreed to provide a buyer for the drugs and to accompany Muro-Torres to the sale, in…