United States v. Dean Kipp

Dean Kipp appeals his sentence after pleading guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). Kipp contends the district court erred by: (1) including the quantity of drugs he possessed for personal use in the calculation of his base offense level; (2) awarding him two criminal history points under U.S.S.G. § 4Al.l(d); and (3) denying him a downward adjustment for a minor or minimal role in the offense pursuant to U.S.S.G. § 3B1.2. The district court had jurisdiction under 18 U.S.C. § 3231 . We have jurisdiction over this timely appeal under 28 U.S.C. § 1291 . We affirm in part, reverse in part, vacate and remand for resentencing.

BACKGROUND

Kipp was charged with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). On May 10, 1992, Kipp pled guilty to possession with intent to distribute in exchange for dismissal of the conspiracy count.

The count to which Kipp pleaded guilty charged him with possession of approximately 117.25 grams of cocaine with intent to distribute. However, in the plea agreement, the parties expressly…