Who bears the burden of proving or disproving 'personal use' quantities when making drug quantity determinations for purposes of the narcotics guidelines?

QUESTIONS PRESENTED Petitioner, a drug addict, pleaded guilty to narcotics distribution. The PSR reflected petitioner’s uncontradicted assertion that roughly 60% of the methamphetamine she possessed was for personal use by her and her husband. Nevertheless, the district court refused to downwardly adjust petitioner’s drug quantity determination based on that personal use finding petitioner had failed to prove the amounts used. The Second Circuit affirmed rejecting the view of the Seventh Circuit that places the burden on the government to disprove the amount personally used. The Second Circuit also affirmed the district court’s criminal history determination finding that petitioner could not establish plain error because of the five appellate courts to consider the issue, one had ruled that the issuance of a citation or summons can be considered an “qntervening arrest” for purposes of USSG §4A1.2(a)(2). This petition raises the following questions concerning which the appellate courts are divided: 1. Who bears the burden of proving or disproving “personal use” quantities when making drug quantity determinations for purposes of the narcotics guidelines? 2. Is the issuance of a citation or summons an “intervening arrest” for purposes of USSG §4A1.2(a)(2)? 1