United States V. Davern

The issues before us in this sentencing appeal in which the defendant pled guilty to possession of cocaine are as follows: (1) whether the sequence of sentencing steps prescribed by the Sentencing Commission for use in this case, and followed by the District Court, are consistent with the governing statute on sentencing, and (2) whether the Commission has "taken into consideration" and mandated increased penalties for two "aggravating circumstances," namely (a) possessing a larger volume of white powder surrounding the cocaine in question, and (b) attempting unsuccessfully to buy more cocaine than the amount actually possessed. We reverse because the Commission's sequence of sentencing steps does not comport with the governing statute and because the two "aggravating circumstances" presented by the government have not been "taken into consideration" by the Commission in mandating increased penalties in drug possession cases.