Mistaken Drug Identity Does Not Limit Guideline Accountability; Returning Contraband Is “Distribution”

Introduction

The Third Circuit’s opinion in United States v. Pope addresses a common yet legally nuanced scenario in drug prosecutions: a defendant orders one controlled substance but is mistakenly provided another, briefly possesses it, and promptly returns it. The question is whether that mistakenly delivered and returned drug weight counts toward the defendant’s Sentencing Guidelines calculation.

Andrew Pope pled guilty to conspiracy to distribute and possess with intent to distribute multiple controlled substances under 21 U.S.C. § 846. At sentencing, the district court held him responsible for 467 grams of methamphetamine, including 425 grams he briefly possessed after his supplier, codefendant Gerinardo Rivera, misinterpreted a request for crack cocaine. Pope returned that methamphetamine once he realized the error. Pope objected to the inclusion of those 425 grams, arguing the immediate return and mistaken drug identity should preclude attribution. The district court disagreed and calculated a base offense level of 30 (later reduced by five levels), imposing a 120-month term.

On appeal, Pope challenged the inclusion of the 425 grams. The Third Circuit affirmed, holding that (1) a defendant is accountable for the controlled substance he actually possessed, notwithstanding a mistake as to drug identity; and (2) returning contraband qualifies as “distribution” because it is a transfer or delivery to another. The panel also noted—but did not disturb—an unpreserved, non-prejudicial Guidelines-range arithmetic discrepancy.

Summary of the Opinion

Detailed Analysis

Factual and Procedural Background

Intercepted communications and surveillance showed that Pope obtained methamphetamine and other drugs from Rivera and resold them, with Rivera sometimes referring customers to Pope and receiving distribution updates. During one transaction, Pope asked for crack cocaine but, due to a misunderstanding of coded language, Rivera provided 425 grams of methamphetamine. Pope realized the mix-up and returned the methamphetamine to Rivera. The Presentence Report (PSR) attributed to Pope at least 30 grams of fentanyl and 467 grams of methamphetamine (425 grams from the mistaken transaction, plus 42 grams from another purchase that also included 10 grams of fentanyl). The district court overruled Pope’s objection to including the 425 grams, calculated a base offense level of 30, applied a five-level reduction for acceptance of responsibility and a departure motion (total offense level 25), and imposed a 120-month sentence (with five years of supervised release).

On appeal, Pope argued the district court erred by including the 425 grams because he immediately returned the methamphetamine and never intended to traffic in that substance. The government defended the attribution under U.S.S.G. § 1B1.3(a)(1)(A), citing established Third Circuit law regarding drug-identity mistakes and the broad definition of “distribution.”

Precedents Cited and Their Influence

• United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001):
  Barbosa holds that a defendant is accountable for the drugs with which he was directly involved, even if he reasonably mistook the drug’s identity. The Pope panel quoted Barbosa’s adoption of the Fifth Circuit’s formulation that Congress made a “clear” decision “to make drug dealers assume the risk of what kinds and amounts of controlled substances they carry.” That principle squarely forecloses an argument that a mistaken delivery of methamphetamine (instead of crack cocaine) should not count.
• United States v. Dawson, 32 F.4th 254 (3d Cir. 2022):
  Dawson interprets “distribution” in the drug-trafficking context to mean the act of selling, transferring, giving, or delivering a drug to another. The Pope court relied on Dawson to conclude that Pope “distributed” methamphetamine by returning it to Rivera. Importantly, Dawson rejects a narrow, purpose-based reading: the motivation for the transfer is irrelevant to whether a “delivery” occurred. Thus, returning contraband to correct a mistake is still distribution.
• United States v. Olano, 507 U.S. 725 (1993), and United States v. Young, 470 U.S. 1 (1985):
  These decisions set the plain-error standard for forfeited claims on appeal. The Pope panel referenced Olano to explain that an unpreserved Guidelines-range discrepancy will not be noticed unless the error is plain and affects substantial rights. Because the correct range was higher than the one used, Pope could not show prejudice from the district court’s apparent table misread.
• United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc), and United States v. Adair, 38 F.4th 341 (3d Cir. 2022):
  The court cited Grier for the clear-error standard governing factual findings pertinent to the Guidelines, and Adair for the de novo review standard applicable to Guidelines interpretation. These standards framed the panel’s review of the district court’s attribution and legal interpretations.

Legal Reasoning

The court grounded its affirmance in U.S.S.G. § 1B1.3(a)(1)(A), which directs that a defendant’s base offense level be determined on the basis of “all acts and omissions committed by the defendant” that are relevant to the offense of conviction. Two independent strands of reasoning supported attributing the 425 grams of methamphetamine to Pope:

1. Mistake-of-Drug Identity Does Not Limit Accountability (Barbosa): The panel emphasized that in sentencing, a defendant is accountable for the substance he actually possessed or distributed, even if he reasonably believed it was a different drug. Pope sought a controlled substance to sell, knew he had obtained a controlled substance, and actually possessed methamphetamine (even if briefly). Under Barbosa, his mistaken belief that he would receive crack cocaine is immaterial; he is accountable for the methamphetamine he actually handled.
2. Returning Contraband Is “Distribution” (Dawson): Citing Dawson’s definition—sell, transfer, give, or deliver—the court held that Pope “distributed” methamphetamine when he returned it to Rivera. The court explicitly rejected any motive-based limitation: even though Pope’s purpose was to return the wrong drug, that purpose does not negate the fact of a delivery. This reasoning alone sufficed to attribute the 425 grams as Pope’s own distribution conduct.

Because the attribution was justified based on Pope’s personal acts under § 1B1.3(a)(1)(A), the court did not need to reach whether the mistaken transaction was within the scope of or in furtherance of the conspiracy (a § 1B1.3(a)(1)(B) “jointly undertaken criminal activity” analysis that would require findings on scope and reasonable foreseeability).

Standards of Review: The panel reviewed the district court’s factual determinations for clear error and its interpretation of the Guidelines de novo. It found no clear error in the factual finding that Pope possessed and then returned the methamphetamine, and no legal error in treating that conduct as relevant for offense-level calculation.

The Apparent Guidelines-Table Discrepancy and Plain Error

The district court reduced Pope’s base offense level of 30 by five levels (acceptance plus departure) to 25 and, with a Criminal History Category VI, stated a range of 110–129 months. The panel observed that this “appears to be an error,” since the Sentencing Table yields 110–137 months for offense level 25, CHC VI. Pope did not raise this issue below. Applying Olano, the panel concluded the forfeited error did not affect substantial rights because the correct range is higher than the range the district court used. Pope received 120 months—a term within both the announced (lower) range and the correct (higher) range—so he could not show prejudice from the error. The court therefore “did not notice” the error.

Impact and Practical Significance

• Broadened Understanding of “Distribution” at Sentencing: The opinion cements the idea—already embedded in Dawson—that distribution encompasses any transfer or delivery, including returning contraband. This undermines defense arguments that “no distribution” occurred when a defendant merely returns the wrong drugs to a supplier. Expect prosecutors and probation to cite this reasoning in PSRs and sentencing memos to include “returned” quantities.
• No Safe Harbor for Misdelivered Drug Types: Barbosa already established that mistakes about drug identity do not reduce accountability; Pope applies that principle in a fact pattern involving an immediate return, confirming that even brief, mistaken possession counts if the defendant knew the substance was controlled.
• Reduced Need for Joint-Activity Findings: By affirming on § 1B1.3(a)(1)(A) (the defendant’s own acts), the panel shows that the government can often avoid the more demanding “jointly undertaken activity” analysis (scope and foreseeability under § 1B1.3(a)(1)(B)) if it proves the defendant personally possessed or transferred the substance at issue.
• Short or “Momentary” Possession Can Suffice: The decision indicates that even brief possession followed by immediate return may still count both as possession with intent to distribute (when the defendant seeks to traffic in a controlled substance) and as distribution (upon transfer back to the supplier).
• Plain Error and Guidelines Arithmetic: The panel’s treatment of the unpreserved Guidelines-range discrepancy highlights a pragmatic point: appellate relief on a forfeited Guidelines error typically requires a showing that the mistake prejudiced the defendant. When the correct range is higher than the one used, that is generally impossible to show.
• Persuasive, Though Not Binding: As a non-precedential decision, Pope is not binding in the Third Circuit; however, it provides persuasive authority, especially in district courts confronting misdelivery-and-return scenarios.

Complex Concepts Simplified

• Relevant Conduct (U.S.S.G. § 1B1.3): The Guidelines instruct courts to consider not only the offense of conviction but also “relevant conduct,” including all acts the defendant personally committed in connection with the offense. They also allow attribution of acts by others in jointly undertaken criminal activity, but that requires additional findings (scope of the jointly undertaken activity and reasonable foreseeability). Pope is about personal conduct under § 1B1.3(a)(1)(A).
• Distribution: In drug cases, “distribution” means any transfer, delivery, or giving of drugs to another. It does not require a sale, profit, or particular motive. Returning drugs to their source is still a delivery and thus a distribution.
• Mistake-of-Drug Identity: A defendant’s reasonable belief that he possessed a different drug (e.g., expecting crack but receiving meth) does not reduce the drug quantity used for Guidelines. Accountability is keyed to the substance actually handled, assuming the defendant knew it was a controlled substance.
• Possession with Intent to Distribute: Possession can be actual (physical custody) or constructive (control or dominion). “Intent to distribute” is the purpose to transfer the drug to someone else; this intent can be inferred from circumstances (planned resale, quantity, behavior). In Pope, intent to traffic in some controlled substance, plus actual possession of methamphetamine, supported accountability.
• Standards of Review: Factual findings (e.g., what occurred in a transaction) are reviewed for “clear error,” a deferential standard. Interpretations of the Guidelines are reviewed “de novo,” meaning the appellate court takes a fresh look without deference.
• Plain Error (Olano): If a party did not object below, the appellate court will correct an error only if it is plain, affected substantial rights (prejudiced the outcome), and seriously affects the fairness, integrity, or public reputation of judicial proceedings. In Pope, the unpreserved Guidelines-range discrepancy did not prejudice the defendant because the correct range was higher than the one used.
• Base Offense Level and Criminal History: The Guidelines assign offense levels based on drug weight/type and adjust for other factors; criminal history category reflects prior convictions. The Sentencing Table converts the total offense level and criminal history into an advisory range. Here, after reductions, Pope’s total offense level was 25 with CHC VI.
• Not Precedential Dispositions: In the Third Circuit, such opinions are not binding precedent but may be cited for their persuasive reasoning.

Conclusion

United States v. Pope reinforces two potent principles of federal sentencing in drug cases. First, under Barbosa, a defendant bears the risk of what he actually possesses or transfers: a mistaken belief about drug identity does not shield him from accountability for the substance in his hands. Second, under Dawson, distribution is a functional, not motive-based, concept—returning contraband to a supplier is a “delivery,” and therefore a distribution, regardless of purpose.

Applied to Pope, these principles made the 425 grams of mistakenly delivered methamphetamine fully attributable: Pope possessed a controlled substance he intended to traffic and then distributed that methamphetamine back to Rivera. That dual rationale obviated any need to rely on conspiracy-based relevant conduct. The panel also underscored that unpreserved Guidelines arithmetic errors will not warrant relief absent prejudice—especially when the correct range is higher than the one applied.

While not precedential, Pope provides clear, practical guidance for sentencing in misdelivery-and-return scenarios. Defendants cannot avoid drug-quantity attribution by pointing to prompt returns or mistaken drug identities; brief possession and return suffice to establish both possession with intent to distribute and distribution for Guidelines purposes.