United States v. Anthony Wayne Fagan, United States of America v. Anthony Wayne Fagan

In these consolidated appeals, Anthony Wayne Fagan challenges his jury conviction and sentence for possession of cocaine base with intent to distribute and distribution of cocaine base within 1000 feet of a school, in violation of 21 U.S.C. §§ 841 (a)(1) & 845a (now codified at 21 U.S.C. § 860 ). He also challenges the sentence imposed after he pleaded guilty in a separate case to possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). We vacate both sentences and remand.

I. FACTS & PROCEDURAL BACKGROUND

The procedural history of these cases is tortuous but important to our decision. On March 8, 1988, police officers observed Fa-gan and another man at a house in Los Angeles engaged in what appeared to be the sale of cocaine base. The officers followed and stopped one of Fagan’s customers, and discovered that she possessed cocaine base. The police then arrested Fagan. On March 18, 1988, a federal grand jury returned an indictment against Fagan based on the March 8th incident. This indictment charged him with one count of possession of cocaine base with intent to distribute, one count of distribution of cocaine base within 1000 feet of a…