Two of our sister circuits have reached the same conclusion. See United States v. Gill, 348 F.3d 147, 152 (6th Cir. 2003) ; United States v. Wyss, 147 F.3d 631, 632 (7th Cir. 1998). Where (a)(2) does not apply, relevant conduct is assessed under subdivision (a)(1)(A), which covers all acts committed by the defendant "that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense."

Brown argues that this was an error because, under the Sentencing Guidelines, the state sentences should be considered relevant conduct to the instant offense rather than prior sentences. Because the district court correctly interpreted the Sentencing Guidelines as dictated by our prior decision in United States v. Gill, 348 F.3d 147, 153 (6th Cir. 2003), we AFFIRM the judgment of the district court. I

United States v. Antonietti, 86 F.3d 206, 210 (11th Cir. 1996). After the District Court issued its opinion the Court of Appeals for the Sixth Circuit joined the courts which had held that in a possession with intent to distribute case possession of drugs for personal use could not be considered relevant conduct for sentencing purposes. United States v. Gill, 348 F.3d 147 (6th Cir. 2003). The District Court disagreed with the premise it attributed to the majority of the Court of Appeals that "the act of setting aside narcotics for personal consumption is . . . not a part of a scheme or plan to distribute these drugs.

When determining a defendant's base offense level based on drug quantity, the district court considers the defendant's relevant conduct, see USSG § 1B1.3, which may include uncharged or acquitted conduct. See United States v. Young, 553 F.3d 1035, 1050-51 (6th Cir. 2009); United States v. Gill, 348 F.3d 147, 151 (6th Cir. 2003). Relevant conduct includes all conduct that is "part of the same course of conduct or common scheme or plan as the offense of conviction."

"For defendants convicted of drug crimes, the base offense level at sentencing depends upon the amount of drugs involved in the offense." United States v. Averill, 636 Fed.Appx. 312, 315 (6th Cir. 2016) (citing U.S.S.G. § 2D1.1(c)); accord, e.g., United States v. Gill, 348 F.3d 147, 149 (6th Cir. 2003). This is because, under the advisory sentencing guidelines, a defendant's base offense level is derived from his "relevant conduct," as that term is defined in U.S.S.G. § 1B1.3.

In a nutshell, relevant conduct is criminal conduct not necessarily covered by the present indictment or plea that the Guidelines say may nevertheless be considered in computing the defendant’s Guidelines offense level. United States v. Gill , 348 F.3d 147, 151 (6th Cir. 2003). In that it relates to the calculation of the proper Guidelines range, Benton’s "relevant conduct" argument sounds in procedural reasonableness.

The law on the issue of personal use is clear and is undisputed by the parties: Any drugs “possessed for personal consumption should not be included when calculating the amount of drugs to enter into the drug quantity table in U.S.S.G. § 2D1.1(c).” United States v. Gill, 348 F.3d 147, 153 (6th Cir.2003). Gill has been the clear law of this circuit and numerous others for many years, and a personal-use argument has the potential to reduce substantially a defendant's sentence.

"Relevant conduct" includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant," as well as actions jointly undertaken by co-conspirators if such actions were "[(1)] within the scope of the jointly undertaken criminal activity, [(2)] in furtherance of that criminal activity, and [(3)] reasonably foreseeable in connection with that criminal activity; that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1). Relevant conduct need not be charged, United States v. Gill, 348 F.3d 147, 151 (6th Cir. 2003), and it can even include acquitted conduct, United States v. White, 551 F.3d 381, 385 (6th Cir. 2008) (en banc).

A defendant who has been convicted of a drug offense is held responsible at sentencing "for all drug quantities that are included within the scope of his 'relevant conduct,' as that term is defined" in the Sentencing Guidelines. United States v. Gill, 348 F.3d 147, 149 (6th Cir. 2003); see also United States v. Davern, 970 F.2d 1490, 1494 (6th Cir. 1992) (en banc) ("The law . . . is clear that a base offense level is determined by the amount of drugs included in the defendant's relevant conduct, not just amounts in the offense of conviction or charged in the indictment."). When the offense involves "jointly undertaken criminal activity[,] . . . whether or not charged as a conspiracy," relevant conduct includes "all acts and omissions of others that were—(i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity."

"For defendants convicted of drug crimes, the base offense level at sentencing depends upon the amount of drugs involved in the offense." United States v. Averill , 636 F. App'x 312, 315 (6th Cir. 2016) (citing U.S.S.G. § 2D1.1(c) ); accord, e.g. , United States v. Gill , 348 F.3d 147, 149 (6th Cir. 2003). This is because, under the advisory sentencing guidelines, a defendant's base offense level is derived from his or her "relevant conduct," as that term is defined in U.S.S.G. § 1B1.3. Generally, if a sentencing court determines that a defendant's relevant conduct for purposes of sentencing includes drug quantities that are greater than those involved in the offense of conviction, the court may calculate the defendant's base offense level using those higher drug quantities.