United States V. Kingston

John Kingston pled guilty to one count of violating 21 U.S.C. § 841(d), possession of a "listed chemical" with the intent to manufacture and distribute a controlled substance. The United States appeals from the district court's decisions that Kingston was a "minor participant" in the crime within the meaning of the Guidelines, thus giving Kingston a two-level reduction in his offense level, and from the court's exclusion of a conviction for reckless driving from the calculation of Kingston's criminal history category because it is a "minor traffic infraction." Kingston appeals from the court's determination that he be sentenced according to the amount of the controlled substance that he would have produced had his scheme come to fruition, rather than the amount of the listed chemical he actually possessed. For the reasons that follow, we affirm the district court with respect to Kingston's appeal and reverse the court with respect to the government's appeal. We remand the question of whether Kingston was a "minor participant" to the district court for further proceedings consistent with this opinion.