§254 Estimating Drug Quantity
3d Circuit says judge, not jury, finds drug quantity within maximum for crime of conviction. (120)(254) Defendant was convicted of 24 counts of drug trafficking. At sentencing, the district court found him responsible for 1,000 grams of cocaine and 200 grams of heroin. The Third Circuit rejected defendant’s argument that only the jury could make these findings, holding that as long as defendant was sentenced within the statutory maximum for the crime of conviction, the district court could properly rely on the trial evidence to find the quantity of drugs attributable to defendant. U.S. v. Womack, __ F.4th __ (3d Cir. Nov. 29, 2022) No. 16-1682.
6th Circuit upholds drug quantity calculation against witness credibility challenge. (254) Defendant was convicted of drug trafficking. At sentencing, defendant challenged the credibility of the person who said that he sold the cocaine to defendant. The Sixth Circuit upheld the district court’s credibility determination, finding the evidence was sufficient for the district court to find by a preponderance of the evidence that defendant bought the quantity of cocaine found by the court. U.S. v. Mosley, __ F.4th __ (6th Cir. Nov. 18, 2022) No. 21-1136.
7th Circuit reverses where government failed to establish purity of methamphetamine. (254) Defendant pleaded guilty to methamphetamine trafficking. At sentencing, he submitted an affidavit from a chemist questioning the amount of methamphetamine that he possessed. The district court agreed with the government’s position that the DEA had a standard protocol that it followed for testing, and the government had established the purity of the methamphetamine by a preponderance of the evidence. The Seventh Circuit reversed, finding that the government had not submitted test results that established purity by a preponderance of the evidence, and that defendant had advanced more than a “mere denial” of the DEA’s evidence. U.S. v. Moore, __ F.4th __ (7th Cir. Nov. 7, 2022) No. 21-2485.
5th Circuit reverses where court assumed all seized money would be used to buy drugs. (254) Defendant pleaded guilty to drug trafficking. In calculating drug quantity at sentencing, the district court converted all of the money seized from defendant into drugs. The Fifth Circuit reversed because the district court assumed that all of the money would be used to purchase more drugs. The panel found that some of the money would have been used to pay for housing, food, or medicine. U.S. v. Lujan, __ F.4th __ (5th Cir. Feb. 4, 2022) No. 21-50091.
8th Circuit affirms reliance on coconspirator testimony to set quantity of meth. (254) Defendant was convicted of distributing methamphetamine, and at sentencing, the court attributed 21 kilograms to him. Reviewing for clear error, the Eighth Circuit found that the district court could properly rely on trial testimony from defendant’s coconspirators to find the quantity of methamphetamine. U.S. v. Ramirez, __ F.4th __ (8th Cir. Dec. 28, 2021) No. 20-3421.
4th Circuit finds “ice” was foreseeable to meth defendants. (251)(254)(270) At defendant’s sentencing for conspiracy to distribute methamphetamine, the district court found that certain quantities of “ice” were foreseeable for each defendant. Defendants argued that it was not foreseeable that they would distribute “ice,” as opposed to regular methamphetamine. The Fourth Circuit affirmed, holding that although the 80% threshold for “ice” may be proven by lab results, the district court had “latitude” to use DEA reports, statements from coconspirators, and the testimony of experts about what was trafficked in the region. U.S. v. Williams, __ F.4th __ (4th Cir. Nov. 23, 2021) No. 20-4002.
7th Circuit upholds finding defendant responsible for drugs that brother stored in his garage. (254) At defendant’s sentencing for drug trafficking, the court included drugs that defendant’s brother put in defendant’s garage. Defendant argued that the quantity of drugs placed by his brother was not foreseeable to him. The Seventh Circuit rejected the argument, noting that defendant had admitted that his brother stored drugs in his garage and that defendant knew that his brother was storing drugs in his garage. U.S. v. Zamudio, __ F.4th __ (7th Cir. Nov. 18, 2021) No. 20-3016.
2d Circuit reverses attributing codefendant’s drugs where defendant was acquitted of conspiracy. (254) (270) At defendant’s sentencing for drug trafficking, the district court held defendant accountable for drugs that belonged to a coconspirator even though defendant had been acquitted of conspiracy. The district court found by a preponderance that defendant could foresee that the coconspirator would possess the drugs that were found after defendant’s arrest. The Second Circuit reversed, ruling that the district court clearly erred in relying on drugs found after defendant’s arrest to conclude that defendant conspired with the coconspirator. U.S. v. Willis, __ F.4th __ (2d Cir. Sept. 20, 2021) No. 18-3617.
5th Circuit upholds attributing cash to drug trafficking. (197)(254) At defendant’s sentencing for drug trafficking, the district court did not make findings before it attributed all the currency found in defendant’s home to drug trafficking. On appeal, the Fifth Circuit remanded for findings regarding the currency. On remand, the district court made three findings attributing the currency to defendant’s drug trafficking as relevant conduct. The Fifth Circuit found that the district court’s findings complied with its mandate. U.S. v. Johnson, __ F.4th __ (5th Cir. Sept. 16, 2021) No. 20-11046.
2d Circuit reverses drug quantity finding where detective could not have discovered drugs. (254)(270) Defendant was convicted of drug and firearm offenses. At sentencing, the district court attributed to defendant quantities for counts of which he had been acquitted. The Second Circuit reversed, noting that the detective who said he found the drugs could not have been there when the drugs were found. U.S. v. Willis, __ F.3d __ (2d Cir. July 16, 2021) No. 18-3617.
8th Circuit reverses where government failed to prove drug quantity, despite plea agreement. (254) (795) At sentencing for drug trafficking, the district court attributed certain amounts of drugs to defendant. He objected, but the court relied on the plea agreement. On appeal, the Eighth Circuit reversed, ruling that defendant had only stipulated in the plea agreement to what had been said about him; the agreement did not stipulate that defendant had actually possessed the drug quantities at issue. The case was remanded to recompute the drug quantity. U.S. v. Sarchett, __ F.3d __ (8th Cir. July 12, 2021) No. 20-2517.
8th Circuit upholds marijuana quantity based on scale of operation, ledgers, and cash. (254) Defendant pleaded guilty to marijuana trafficking. The presentence report estimated the drug quantity at 1,136 pounds, which would have yielded an offense level of 26. The district court found that defendant had trafficked more marijuana and set the offense level at 30. The Eighth Circuit affirmed, ruling that the district court properly relied on the scale of defendant’s operation, officers’ finding of drug ledgers, and the amount of money that defendant possessed. U.S. v. Vang, __ F.3d __ (8th Cir. July 7, 29021) No. 20-2005.
8th Circuit finds sufficient evidence that defendant distributed drugs to two men. (254) At sentencing for drug trafficking, the district court based the drug quantity on defendant’s deliveries to two men. On appeal, the Eighth Circuit rejected defendant’s argument that there was insufficient evidence that he had made deliveries to the first man. U.S. v. Sims, __ F.3d __ (8th Cir, June 1, 2021) No. 20-1009.
5th Circuit reverses jury finding that defendant conspired to distribute 280 grams of crack. (254) At defendants’ trial, a witness stated that she had seen one defendant sell crack “a few times,” and the government acknowledged that this defendant engaged in “minimal drug dealing.” The jury nevertheless convicted defendant of conspiring to distribute more than 280 grams of crack. The First Circuit reversed defendant’s conviction for conspiring to sell 280 grams of crack, finding that defendant could not foresee the quantity of crack the conspiracy would sell and that defendant had not seen other members of the conspiracy sell crack. U.S. v. McLaren, __ F.3d __ (5th Cir. May 18, 2021) No. 17-30524.
7th Circuit upholds drug calculation based on number of telephone conversations. (254)(850) Defendant was convicted of drug trafficking. At sentencing, the district court calculated the drug quantity as 10.5 kilograms of heroin based on the number of telephone calls (84,000). The court also said that even if it calculated the heroin quantity differently, it would impose the same sentence. Reviewing for clear error, the Seventh Circuit found the district court’s calculation reasonable. U.S. v. Gibson, __ F.3d __ (7th Cir. Apr. 30, 2021) No. 20-1236.
8th Circuit affirms drug quantity based on coconspirators’ testimony. (254) At trial, defendant’s jury found that he was liable for conspiring to distribute 500 grams of methamphetamine. At sentencing, the district court found that he conspired to distribute more than 1,500 grams, based on trial testimony. The Eighth Circuit affirmed, noting that a drug quantity finding can be based on the testimony of coconspirators. U.S. v. Janis, __ F.3d __ (8th Cir. Apr. 27, 2021) No. 20-1077.
11th Circuit finds sufficient evidence that defendant knew contents of package in dismissed count. (254) (270) Defendant received two packages containing an analogue of fentanyl from Hong Kong. The government initially charged both packages, but dismissed the charge based on the first package before trial. At sentencing the district court treated the contents of the first package as relevant conduct, and based the offense level on the contents of both packages. The Eleventh Circuit affirmed, noting that defendant said that he ordered the substance to address back pain and had been taking hydrocodone before. He did not speak with his physician about the substance, and the second package clearly contained an illegal substance. U.S. v. Delgado, __ F.3d __ (11th Cir. Nov. 23, 2020) No. 19-11997.
8th Circuit includes drug amounts distributed by supplier. (254) Defendant was convicted of drug trafficking. At sentencing, the district court included in the drug quantity all of the drugs that defendant’s supplier received, not just the drugs that defendant had distributed. The Eighth Circuit found that trial testimony showed that all of the drugs were part of the same course of conduct and were foreseeable to defendant. The court noted that the district court’s credibility determinations based on the trial evidence were “virtually unreviewable.” U.S. v. Lewis, __ F.3d __ (8th Cir. Sept. 30, 2020) No. 19-2544.
11th Circuit affirms sentence for over-prescribing drugs despite change in standard-of-care law. (254) Defendant was a doctor who over-prescribed controlled substances at his Florida clinic. In calculating the drug weight at sentencing, the district court used amounts of drugs prior to Florida’s amendment of its standard of care for pain management medication. The Eleventh Circuit found no error because defendant’s conduct violated both versions of Florida’s standard of care. U.S. v. Gayden, __ F.3d __ (11th Cir. Oct. 9, 2020) No. 18-14182.
5th Circuit allows court to hold defendant accountable for more drugs than jury found. (120)(254) At defendant’s trial for drug trafficking, the jury found defendant accountable for 50 grams of methamphetamine. However, at sentencing, the district court found (by a preponderance) that defendant was accountable for 176 kilograms. Defendant argued that by disregarding the jury’s finding, the court violated the Fifth and Sixth Amendments. The Fifth Circuit found that the Fifth and Sixth Amendments did not apply to the Sentencing Guidelines and upheld the district court’s sentence. U.S. v. Leontaritis, __ F.3d __ (5th Cir. Oct. 9, 2020) No. 19-40498.
3d Circuit finds “ample basis” for drug quantity finding. (254) Defendant was convicted of conspiracy to possess and distribute drugs. At trial, the leader of the conspiracy testified that at least twice defendant “bagged up” at least 15 grams of heroin for him. The presentence report attributed 30 grams of heroin to defendant, and the district court adopted this amount. The Third Circuit found that the district court had “ample basis” for determining that defendant conspired to distribute 30 grams. U.S. v. Diaz, __ F.3d __ (3d Cir. Feb. 25, 2020) No. 18-2157.
7th Circuit reverses drug quantity finding for lack of reliable evidence. (254) Defendant pleaded guilty to possessing more than 100 kilograms of marijuana. At sentencing, the district court held him responsible for the equivalent of 4,680 kilograms, more than 32 times the amount seized. The additional quantity rested solely on the presentence report’s account that confidential informants had given detailed information to law enforcement that defendant was dealing significant quantities of methamphetamine when the marijuana was seized. The Seventh Circuit held that when a defendant objects to drug quantity, there must be reliable evidence to support the judge’s finding. The case was remanded for resentencing. U.S. v. Helding, __ F.3d __ (7th Cir. Jan. 28, 2020) No. 18-3270.
5th Circuit finds no plain error in using presentence report to set drug quantity. (254) Defendant pleaded guilty to drug trafficking. In a proffer statement, he admitted to participating in drug transactions involving 21 kilograms. The presentence report set defendant’s drug quantity based on information from a cooperating defendant. Defendant challenged the PSR, claiming that his transactions with the cooperating defendant totaled less than the PSR attributed to him. In response, the government used information from defendant’s proffer to corroborate the information in the PSR. Reviewing for plain error, the Fifth Circuit held that defendant could not show a violation of his substantial rights because the PSR contained information from the cooperating defendant and the district court could have based its drug quantity finding on the PSR. U.S. v. Tapia, __ F.3d __ (5th Cir. Jan. 6, 2020) No. 18-10161.
8th Circuit includes unintercepted cocaine in drug quantity. (254) At defendant’s sentencing for drug trafficking, the district court aggregated the quantities of cocaine in three packages to reach over five kilograms. The packages were not addressed to defendant, but one was delivered to him and the other two bore addresses that defendant had supplied to an accomplice. The third package was not intercepted before it was picked up by a codefendant, but it had a similar description. The Eighth Circuit upheld the district court’s use of the third package, because it came from the same part of Mexico as the other two and had an address that defendant had supplied to his accomplice. U.S. v. Guzman, __ F.3d __ (8th Cir. Jan. 2, 2020) No. 18-3488.
5th Circuit allows reliance on uncorroborated hearsay to set drug quantity. (254) Defendant pleaded guilty to trafficking in methamphetamine. The presentence report set the drug quantity based on a statement from defendant’s supplier that defendant had purchased one ounce of methamphetamine per day for 60 days. At sentencing, a DEA agent testified that the government had confirmed through its own investigation that the supplier was being honest. On appeal, defendant argued that the government had not corroborated the supplier’s information about defendant, only the supplier’s comments about others. The Fifth Circuit rejected that argument, finding that the district court could rely on sufficiently reliable hearsay at sentencing. U.S. v. Kearby, __ F.3d __ (5th Cir. Nov. 25, 2019) No. 18-10874.
6th Circuit says court may believe some trial witnesses and disbelieve others in setting drug quantity. (254)(870) At trial, defendant was convicted of a drug conspiracy that involved both heroin and cocaine. At sentencing, she argued that she was responsible for only the cocaine part of the conspiracy and had no involvement with the heroin. The district court rejected that argument and found, based on trial evidence, that defendant was involved with purchase, packaging, and transportation of all the drugs. The district court found that some trial testimony supported defendant’s argument but dismissed it as “just talk.” The Sixth Circuit found no clear error, noting that the district court had sat through the trial and was entitled to believe some witness testimony and disbelieve others. U.S. v. Smith-Kilpatrick, __ F.3d __ (6th Cir. Nov. 7, 2019) No. 18-1671.
8th Circuit reverses where distributions by codefendants were not reasonably foreseeable. (254) Defendant pleaded guilty to cocaine trafficking. At sentencing, the district court also found him accountable for the cocaine seized from him and his codefendants. The court also included the quantity admitted by his codefendants, which raised his base offense level from 24 to 26. On appeal, the Eighth Circuit reversed, holding that defendant could not reasonably foresee the drug quantities that his codefendants admitted distributing, and therefore defendant was not accountable for those amounts. U.S. v. Sterling, __ F.3d __ (8th Cir. Nov. 1, 2019) No. 18-2974.
5th Circuit upholds reliance on codefendants’ statements about drug quantity. (254) At defendant’s sentencing for drug trafficking, the district court accepted (with some modifications) the drug quantity figure in the presentence report. That figure rested on uncorroborated statements made by codefendants. The Fifth Circuit upheld the district court’s drug quantity finding on the ground that the district court can rely on any information at sentencing as long as it is reliable. U.S. v. Gentry, __ F.3d __ (5th Cir. Oct. 28, 2019) No. 17-10165.
5th Circuit reverses where drug quantity finding was based on “patently incorrect” PSR. (254) The presentence report said defendant had delivered a kilogram of methamphetamine every week during a specific time period. Defendant objected, pointing out that he had been incarcerated during most of that time. Nevertheless, the district court concluded that the witness’s memory might have been faulty about when the meth was delivered, and found defendant responsible for the full amount in the PSR. The Fifth Circuit reversed, ruling that a “patently incorrect” statement could not form the basis for a drug-quantity finding. U.S. v. Gentry, __ F.3d __ (5th Cir. Oct. 28, 2019) No. 17-10165.
5th Circuit upholds reliance on PSR’s account of defendant’s admissions to drug sales. (254)(270) Arrested in possession of 25 grams of methamphetamine, defendant said he had been distributing methamphetamine for the past 27 weeks and that he distributed about a pound a week. The presentence report recounted this admission and the district court held defendant responsible for more than 12 kilograms of actual methamphetamine. The Fifth Circuit held that the pound a week that the district court attributed to defendant was relevant conduct to his offense and that the district court did not commit clear error by relying on the PSR’s account of defendant’s post-arrest statement. U.S. v. Barfield, __ F.3d __ (5th Cir. Oct. 25, 2019) No. 18-50399.
1st Circuit says Congress and the guidelines require aggregation of drug quantities. (254) A jury found defendant guilty of trafficking more than one kilogram of heroin, and at sentencing, defendant conceded that he was responsible for 2.27 kilograms. The district court found that defendant had distributed over three kilograms of heroin, found that his guidelines range was 360 months to life, and sentenced him to 28.5 years. On appeal, defendant argued that Congress and the guidelines did not mean to aggregate the quantities of drugs; instead, the court should use a “transactional” approach and that the government never proved that he sold more than a kilogram of heroin at one time. The First Circuit found no error in the district court’s sentence. U.S. v. Chisholm, __ F.3d __ (1st Cir. Oct. 8, 2019) No. 17-1952.
8th Circuit allows court to exceed drug amount found by jury. (254) At defendant’s drug-trafficking trial, the jury found by special verdict that defendant’s offense involved less than 500 grams of cocaine. Based on the evidence at trial, however, the district court found defendant responsible for more than 500 grams of cocaine and based the offense level on that finding. The Eighth Circuit held that a district court may base the sentence on a drug quantity greater than that found by a jury as long as the sentence does not exceed the statutory maximum. U.S. v. Ramirez-Maldonado, __ F.3d __ (8th Cir. June 26, 2019) No. 18-2068.
D.C. Circuit counts mailed packages of drugs as relevant conduct for conspiracy. (254)(275) Defendant was a letter carrier who participated in a scheme to deliver packages containing marijuana to other members of the conspiracy. The conspiracy delivered at least 131 packages. At sentencing, the district court calculated defendant’s sentence under § 2D1.1 using 100 kilograms or more of marijuana. The D.C. Circuit held that the district court had not committed clear error in finding that the conspiracy trafficked in at least 100 kilograms of marijuana. U.S. v. Norman, __ F.3d __ (D.C. Cir. June 11, 2019) No. 17-3070.
8th Circuit upholds drug quantity despite short stay in conspiracy. (254) Defendant pleaded guilty to drug trafficking, and the district court based his offense level on 15 to 45 kilograms of methamphetamine. Defendant argued that the district court used methamphetamine that predated his involvement in the conspiracy. The Eighth Circuit found sufficient evidence that defendant was responsible for at least 15 kilos during the four months he was part of the conspiracy based on the quantity of drugs seized, the money found, and the involvement of other “associates” in the conspiracy. U.S. v. House, __ F.3d __ (8th Cir. May 7, 2019) No. 17-2341.
10th Circuit reverses drug quantity finding based on untested drugs. (254) At defendant’s sentencing for drug trafficking, the district court considered drug quantities in defendant’s car. The drugs had been weighed but not tested. The district court deducted half a gram for packaging, although there was no evidence as to the weight of the packaging. The Tenth Circuit found that the district court relied on “guesswork” in determining the weight of the packaging and found that the error was not harmless because the drug weight used by the district court could have affected defendant’s offense level. U.S. v. Aragon, __ F.3d __ (10th Cir. Apr. 29, 2019) No. 18-1121.
6th Circuit says court adequately explained why it discounted drug expert’s testimony. (254) Defendants were convicted of drug-trafficking for running a “pill mill” that dispensed controlled substances without a proper prescription. In calculating drug quantity, the district court discounted an expert who testified as to the drug quantity that defendants distributed. The district court found the expert’s testimony “narrow” and “not complete.” The Sixth Circuit held that the district court had adequately explained its findings on drug quantity. U.S, v. Chaney, __ F.3d __ (6th Cir. Apr. 11, 2019) No. 17-6167.
5th Circuit upholds lab extrapolation of drug quantity. (254) Defendant possessed 2,498 pills weighing 838.9 grams. Laboratories tested 85 of the pills and found that all 85 contained fentanyl. The labs reported a 95% level of confidence that 90% of all the pills contained fentanyl. Based on the lab reports, the district court used 838.9 grams to set defendant’s offense level. The Fifth Circuit held that the labs were not required to present an evidentiary basis for how they calculated their conclusion that 90% of the pills contained fentanyl. The court noted that defendant had not offered any evidence to rebut the laboratories’ findings. U.S. v. Dinh, __ F.3d __ (5th Cir. Apr. 4, 2019) No. 18-10099.
6th Circuit finds out-of-court statements by informant reliable in setting quantity. (254)(260) Defendant pleaded guilty to distributing heroin. Prior to his plea, he had been charged with three counts of distributing heroin, each based on a controlled buy involving about one gram. At sentencing, the district court heard testimony from an officer who said that an informant told him that she had been buying heroin from defendant for two years and that she had bought about 70 grams of heroin. The district court set defendant’s offense level using about 70 grams of heroin. The Sixth Circuit found no error in relying on the informant’s out-of-court statements. U.S. v. Armstrong, __ F.3d __ (6th Cir. Apr. 3, 2019) No. 18-5079.
3d Circuit reverses because defendant did not possess all 1,000 grams of heroin at once. (254) Defendant was convicted of a single count of distributing heroin. The jury found that defendant was responsible for both 1,000 grams of heroin and 100 grams of heroin. At sentencing, the district court found that defendant’s offense involved 1,000 grams of heroin under 21 U.S.C. §841(b)(1)(A)(i). The Third Circuit found that a defendant does not possess a quantity of the drug unless the entire quantity is possessed at the same time. Based on that determination, the court found that the government had not proved that defendant possessed 1,000 grams of heroin and vacated defendant’s sentence. U.S. v. Rowe, __ F.3d __ (3d Cir. Apr. 2, 2019) No. 18-1192.
4th Circuit affirms using trial testimony to set drug quantities, despite acquittal. (254)(270) Defendant was charged with four counts of methamphetamine trafficking and firearms possession. At trial, the jury acquitted him of conspiracy to traffic in methamphetamine but found him guilty of distributing more than 50 grams of methamphetamine. At sentencing, the district court determined the quantity of methamphetamine based on trial testimony given by defendant’s alleged coconspirators. The district court found this evidence “convincing.” The Fourth Circuit upheld the district court’s reliance on the conspirators’ testimony, finding that the district court was not required to provide a greater explanation of its reasons for relying on the testimony, despite defendant’s acquittal. U.S. v. Davis, __ F.3d __ (4th Cir. Mar. 19, 2019) No. 18-4095.
1st Circuit finds evidence sufficient to support drug quantity finding. (254) Defendant trafficked in heroin, crack, and oxycodone tablets, and he was convicted of conspiracy to distribute heroin and cocaine base. The district court found that defendant had trafficked in 395 grams of crack, 342 grams of heroin, and 60 grams of oxycodone. Pursuant to § 2D1.1, those quantities converted to a marijuana equivalency of 2,155 kilograms. Under § 2D1.1, at least 1,000 kilograms of converted drug weight yields a base offense level of 30. Defendant argued that the evidence was insufficient to support a finding of 1,000 kilograms or more, but the First Circuit held that the district court reasonably credited cooperating informants’ information and other trial evidence to support a plausible finding that the drug quantity exceeded 1,000 kilograms. U.S. v. Ackies, __ F.3d __ (1st Cir. Mar. 13, 2019) No. 18-1478.
4th Circuit upholds finding that offense involved one kilo of heroin. (254) Defendant was convicted of conspiracy with intent to distribute heroin, in violation of 21 U.S.C. § 846. The indictment did not allege a drug quantity, but the jury found that one kilogram of heroin was attributable to defendant. At sentencing the district court agreed that defendant was responsible for one kilogram of heroin, and sentenced him to 120 months, the top of the guidelines range for one kilogram of heroin. The Fourth Circuit found that telephone calls intercepted during the conspiracy showed that defendant conspired to traffic in a kilogram of heroin. U.S. v. Obiora, __ F.3d __ (4th Cir. Dec. 11, 2018) No. 17-1569.
8th Circuit finds that cocaine base is not relevant conduct for heroin distribution conspiracy. (254)(270) Defendant’s plea agreement stated that he conspired to distribute heroin. At defendant’s sentencing for conspiracy to distribute drugs, the district court included 17.5 grams of cocaine base that a customer said he had seen defendant possess when defendant sold the customer heroin. The Eighth Circuit reversed, finding that it was clear error to include the cocaine base because the possession of cocaine was not relevant conduct for defendant’s sale of heroin. The court held that the government failed to prove a meaningful relationship between the cocaine base and the heroin or any distribution of the cocaine base. U.S. v. Harris, __ F.3d __ (8th Cir. Nov. 19, 2018) No. 17-3341.
1st Circuit approves marijuana estimate based on amount of fertilizer purchased. (253)(254) Defendants were convicted of charges arising out of a large-scale marijuana-farming operation. The government discovered the number of plants growing in 2009, but had no evidence of the number of plants from the other three relevant years. To calculate the total numbers of plants grown, it relied on a supplier’s business records that showed how much Pro-Mix fertilizer the conspirators purchased over a four-year period. Government witnesses testified as to how much Pro-Mix was used on each basket of marijuana (1/2 to 1-1/2 bags) and how many plants were in each basket (three to six plants). The court then assumed, favorably to defendant, that 1-1/2 bags were used for each basket and each basket contained only three plants. The district court also put to one side the number of plants discovered in 2009, which greatly exceeded the number of plants one would expect using those conservative assumptions. The First Circuit found this “doubly conservative approach” was not clearly erroneous. U.S. v. French, __ F.3d __ (1st Cir. Sept. 17, 2018) No. 16-2386.
1st Circuit upholds drug quantity estimate based on defendant’s statement to police. (254) Defendant was convicted of cocaine base possession and conspiracy. At sentencing, the judge accepted the probation office’s conclusion that defendant was responsible for five grams, three days per week, for one year, for a total of 780 grams. The probation office based its estimate on defendant’s statement to police that he obtained on average 5-20 grams of crack daily for about 12 to 18 months. Defendant argued that the court erred by failing to deduct the cocaine base that he personally used from the total drug quantity. The government claimed that because defendant withdrew this argument from his sentencing memorandum, he waived it. The First Circuit agreed. The panel also rejected defendant’s challenge to the use of his statements to the police. The court was at liberty to rely on defendant’s own estimate as the most accurate assessment of drug quantity. U.S. v. Ocean, __ F.3d __ (1st Cir. Sept. 11, 2018) No. 17-1183.
11th Circuit says co-conspirator testimony supported drug quantity estimate for gang leader. (254)(275) Defendant, a member of a gang of drug dealers, was convicted of drug trafficking, firearms possession, armed robbery and assault charges. The Eleventh Circuit held that the district court did not clearly err when it found that defendant was responsible for at least 2.8 kilograms of cocaine base. Defendant was a leader in the broad drug-trafficking conspiracy. The district court was entitled to rely on the cooperators’ testimony about gang activities to approximate the drug quantity attributable to defendant. Guzman testified that he sold 1-2 grams of cocaine base a day for 11 months in 2013. He also estimated that 3-6 other gang members sold one gram a day during his tenure with the gang. Zerquera testified that he sold 2-3 grams a day and estimated that the gang members he worked with sold 3-18 grams a day, with average daily sales between 16 and 18 grams. If the gang sold only 10 grams a day for 11 months, that would be 3.3 kilograms. Even a conservative estimate based on Guzman’s numbers, established that defendant was responsible for more than 2.8 kilograms in light of his substantial role in the conspiracy and the jointly undertaken criminal activity. U.S. v. Dixon, __ F.3d __ (11th Cir. Aug. 24, 2018) No. 15-14354.
6th Circuit upholds “conservative” estimate of pills involved in trafficking ring. (252)(254) Defendant was part of a trafficking ring that ran opiate pills from Detroit to Tennessee. Defendant collected pills in Detroit, and recruited O’Neal to live in a Detroit stash house. The group shipped pills to Buchanan in Tennessee. The Sixth Circuit rejected defendant’s argument, raised for the first time on appeal, that the district court failed to explain the amount of drugs for which it held him accountable. The PSR attributed to defendant 110 oxycodone pills and 2 oxymorphone pills, drawn from Buchanan’s statement that, for years, he bought 50 to 60 pills at a time from defendant and that the latter was his main source of supply for oxycodone. The report attributed another 186,300 oxycodone pills to defendant, drawn from O’Neal’s statement that she mainly received oxycodone pills, about 300 every day from July 2014 to March 12, 2015. The probation officer conservatively started counting on the last day of July and assumed all of the pills were oxycodone, which carries a lower penalty than oxymorphone. There was no plain error. U.S. v. Bradley, __ F.3d __ (6th Cir. Aug. 1, 2018) No. 17-5725.
1st Circuit upholds reliance on informants’ out-of-court statements to establish drug quantity. (254) (770) Defendant pled guilty to heroin conspiracy charges. The district court adopted the PSR’s recommendation that defendant was responsible for 1.3 kilograms of heroin. This quantity was based on grand jury testimony or interviews of nine witnesses who connected defendant to large quantities of heroin. The First Circuit upheld the court’s reliance on the out-of-court statements. A sentencing court may consider hearsay statements of confidential informants if they have sufficient indicia of reliability. Here, the witnesses’ statements about defendant’s heroin distribution were detailed, internally consistent, and mutually corroborative. Multiple witnesses also corroborated the names of defendant’s associates and “runners.” Some witnesses also personally witnessed defendant possessing and distributing heroin himself. U.S. v. Lee, __ F.3d __ (1st Cir. June 18, 2018) No. 17-1490.
6th Circuit upholds finding more cocaine than in jury’s vedrict. (254)(275) Defendant was convicted of racketeering and drug trafficking conspiracy charges. The Sixth Circuit upheld the district court’s finding that defendant was responsible for at least 15 kilograms of cocaine, even though the jury’s verdict was only for “five kilograms or more.” There was trial testimony that the gang’s cocaine trafficking with defendant’s source was about 18 kilograms a year over the course of several years. Although some of the testimony came from witnesses who testified about a marijuana count on which defendant was acquitted, the fact that the jury might not have believed everything the witnesses said was insufficient to overturn the district court’s credibility determinations. U.S. v. Rios, __ F.3d __ (6th Cir. July 21, 2016) No. 14-2495.
8th Circuit upholds reliance on co-conspirators’ testimony to determine drug quantity. (254)(770) Defendant was convicted of several drug-trafficking and firearms-related charges. His PSR calculated that defendant was responsible for 200 kilograms of cocaine and 21 kilograms of crack. That quantity was based on testimony from co-conspirators Long, Thompson, and Edwards, as well as on intercepted telephone conversations that were played at trial. Defendant argued that the witnesses were not credible, but the Eighth Circuit found no error, even though Long had previously lied to the FBI about his role in the conspiracy and the amount of cocaine he had purchased, and Thompson’s testimony was inconsistent about the quantity of cocaine he had purchased. The district court acted within its broad discretion in crediting Long’s testimony and crediting the greater amount of cocaine that Thompson claimed in his testimony. U.S. v. Colbert, __ F.3d __ (8th Cir. July 8, 2016) No. 15-1374.
D.C. Circuit holds that any double-counting of drugs did not affect defendants’ offense level. (125)(254) Defendants, convicted of a drug conspiracy, argued that the court double-counted a 130-gram quantity of heroin. The D.C. Circuit did not address this issue, because any miscalculation did not affect their base offense levels. The district court attributed 995.7 grams of heroin to the conspiracy, which placed defendants at a base offense level corresponding to 700 grams to 1 kilogram of heroin. Subtracting 130 grams from 995.7 grams still left defendants well within the 700 gram to 1 kilogram range. The panel also upheld the district court’s decision to attribute 400 grams of heroin to one drug transaction and 50 grams to another. A co-conspirator testified that he traveled to New York to obtain heroin 5 times, and picked up at least 50 grams on each trip, and on one occasion picked up 400 grams. U.S. v. Burnett, __ F.3d __ (D.C. Cir. July 8, 2016) No. 13-3075.
7th Circuit finds no error in court’s drug quantity methodology or finding. (254) Defendants were convicted of drug charges. The district court found by a preponderance of the evidence that 3 to 10 kilograms of heroin were involved in the offense. The Seventh Circuit found no clear error, ruling that it could readily discern what evidence the court relied on to arrive at its finding. The conspirators had mixed raw heroin with Dormin, a sleeping pill, to create larger quantities of product. The court’s final number, 3.69 kilograms, resulted from a mathematics calculation: a ratio of 13 grams of Dormin to 5 grams of heroin, and 143 bottles of Dormin recovered during six trash pulls, yielded 3.69 kilograms of heroin. The court ultimately accepted that the heroin was mixed at this ratio based on evidence that the heroin was known for its “trademark” ratio, that defendant Price used red tape to wrap the heroin in order to distinguish it, and that he was known on the street for having excellent quality heroin because of this ratio. U.S. v. Saunders, __ F.3d __ (7th Cir. June 10, 2016) No. 13-3863.
7th Circuit upholds reliance on witnesses who saw defendant cook meth. (254)(770) A jury convicted defendant of conspiring to manufacture methamphetamine and a single count of distribution. At sentencing the district court held defendant responsible for an estimated 400 grams of meth based on the trial testimony of defendant’s former girlfriend, Brandy Pierce, and a proffer statement by Denise Huston. Pierce testified that she had supplied defendant with precursor materials and allowed him to cook meth daily at her home over a period of several months. Huston reported that defendant had manufactured meth at her home at least 20 times in the preceding year. The Seventh Circuit upheld the court’s reliance on this testimony despite defendant’s argument that Pierce could not be believed because of her prior convictions and her repeated attempts to minimize her own role in the conspiracy. The discrepancy between Huston’s proffer statement (defendant made meth at her house at least ten different times) and her trial testimony (defendant made meth at her house at least 20 times in the previous year) did not make her testimony incredible. U.S. v. Tate, __ F.3d __ (7th Cir. May 18, 2016) No. 15-3227.
7th Circuit holds defendant accountable for full amount of crack distributed by conspiracy. (254)(275) Defendant was convicted of crack cocaine conspiracy charges. The court estimated that the conspirators sold about 150 grams of crack per week. Based on defendant’s 16-week involvement in the conspiracy, the court attributed 2.4 kilograms of crack to him. Defendant argued that the only direct evidence implicating him involved a maximum of 8.5 grams of cocaine, and that the evidence did not show that the extent of the sales operation was foreseeable to him. The Seventh Circuit found sufficient evidence to support the district court’s conclusion that defendant was aware of the scope of the conspiracy, as required to attribute the full drug amounts involved during his 16-week involvement in the conspiracy. When defendant joined the conspiracy, he filled the position co-conspirator Tatum left open. Tatum testified at trial that he and another conspirator sold about $10,000 of crack per day at the height of his involvement in the conspiracy. Tatum received drugs directly from the leaders or picked them up from a stash house. It was reasonable for the district court to adopt the PSR’s finding that defendant’s involvement resembled Tatum’s; this in turn supported the finding that defendant was aware of the full scope of the conspiracy. U.S. v. Brown, __ F.3d __ (7th Cir. May 13, 2016) No. 14-1363.
7th Circuit upholds drug quantity estimate based on admissions in plea agreement and written statement. (254) Defendant challenged the district court’s decision to attribute to him between three and ten kilograms of heroin. However, the Seventh Circuit found the drug quantity was supported by defendant’s admissions in his plea agreement. He admitted making a heroin purchase every two to three days from about March 1, 2011 to November 1, 2011. The court estimated that each purchase involved about 50 grams of heroin because, on an average trip, defendant jointly purchased $4000 of heroin at a rate of $80 per gram. Thus, the district court found that defendant’s plea agreement supported a total quantity of 4.8 kilograms of heroin. In addition, the court used defendant’s admissions in his written statement to find 3.315 kilograms of heroin. Both of these reasonable estimates supported a finding that the amount of heroin involved was greater than three kilograms but less than 10 kilograms. U.S. v. Melendez, __ F.3d __ (7th Cir. Apr. 20, 2016) No. 14-3590.
8th Circuit accounts for additional meth quantity in drug proceeds or shipments that were not caught. (251)(254) Defendant pled guilty to methamphetamine conspiracy charges. The court attributed to him 4.5 kilograms of actual meth. Defendant did not dispute 4.472 kilograms of actual meth, but argued that the court erred in attributing the additional 28 grams. The Eighth Circuit upheld the drug quantity calculation, based on either of two different methods. First, the court could have converted the drug proceeds that had been found in the co-conspirator houses into at least 28 grams of meth. The court also could have considered meth in packages defendant admitted he sent but were not intercepted by the government. During his proffer interview, defendant admitted to managing the shipment of four packages of actual meth. Two of those packages were intercepted and contained 1,968 grams and 2,363 grams of high purity methamphetamine. The drugs in the other two packages could have accounted for the additional 28 grams. U.S. v. Alcade, __ F.3d __ (8th Cir. Apr. 12, 2016) No. 15-1329.
7th Circuit relies on co-conspirator’s testimony to determine drug quantity. (254)(770) Defendant was convicted of participating in a Chicago drug conspiracy. In determining that defendant was responsible for 8.4 kilograms of cocaine base, the court relied primarily on the trial testimony of co-conspirator LaSalle. Defendant noted that LaSalle was a convicted felon and drug user who stood to gain from his testimony and who had previously lied to the government. The Seventh Circuit upheld the reliance on LaSalle’s testimony because the district court explicitly found LaSalle credible despite his shortcomings as a witness. Determining witness credibility is especially within the province of the district court and “can virtually never be clear error.” LaSalle’s testimony was not too vague to be reliable. LaSalle specifically testified that he regularly supplied defendant with one- to two-kilogram shipments of cocaine from around 2001 through April 2006. This was adequate to support the district court’s very conservative estimate. Moreover, LaSalle’s testimony was at least partially corroborated by additional evidence drawn from surveillance, trash pulls, seizures, and other witness accounts concerning the scope and volume of defendant’s drug trade. U.S. v. Freeman, __ F.3d __ (7th Cir. Mar. 9, 2015) No. 15-1170.
5th Circuit upholds drug quantity finding based on capacity of plane carrying drugs. (254)(275) Defendant was involved in a Colombian conspiracy to import thousands of kilos of cocaine into the United States. He served as an air traffic controller for at least two drug flights. The second flight alone likely involved at least 1,000 kilograms of cocaine because that transaction was worth nearly $8 million. Although there was no direct evidence of the amount of cocaine on the first flight, 150 kilograms was a reasonable, perhaps even low, estimate given the capacity of the plane. The Fifth Circuit ruled that the district court did not clearly err in finding defendant responsible for 150 kilograms of cocaine. U.S. v. Rojas, __ F.3d __ (5th Cir. Jan. 28, 2016) No. 13-50998.
8th Circuit relies on agent’s hearsay of drug quantity estimates given during proffer interviews. (254)(770) Defendant was convicted of drug charges. At sentencing, the district court determined that defendant had distributed 8.42 kilograms of cocaine. At trial, two dealers gave testimony regarding the amount of cocaine they acquired from defendant. At sentencing, an FBI agent gave hearsay testimony on the dealers’ estimates given during proffer interviews. It was these estimates the district court used in its drug-quantity calculation. Defendant argued on appeal that the calculation of 8.42 kilograms of cocaine was based on unreliable hearsay testimony, but the Eighth Circuit found no clear error. Although there were inconsistencies between the proffer interviews and trial testimony, the amounts did not vary so wildly as to render the agent’s hearsay testimony unreliable. The court used the low end of each co-conspirator’s estimate to determine a total, and those amounts were within the range of estimates provided by both witnesses at trial. U.S. v. Moralez, __ F.3d __ (8th Cir. Dec. 10, 2015) No. 14-3702.
5th Circuit finds drug quantity calculation supported by evidence. (254) The district court determined that defendant was responsible for between three and ten kilograms of heroin as part of a conspiracy. At sentencing, the court made several factual findings in support of this quantity. Co-conspirator Berry made three trips in the summer of 2011 to “the spot” where conspirators conducted drug transactions, and retrieved heroin to be distributed in New Orleans. These trips accounted for 2.5 kilograms of heroin. When defendant was arrested in November 2011, he possessed 405.6 grams of heroin and $89,437 cash. Although the district court did not explicitly state that it found the cash to have a heroin equivalent, a co-conspirator had testified at sentencing that $89,000 was equivalent to roughly two kilograms of heroin, and the district court held that the $89,000 was part of the calculation. The Fifth Circuit held that the district court did not err in calculating the amount of heroin attributable. U.S. v. Haines, __ F.3d __ (5th Cir. Oct. 15, 2015) No. 13-31287.
1st Circuit holds supplier and owner of drug point responsible for drugs sold by tenants. (254) From 2000 to 2008, defendant was the marijuana supplier to, and a co-owner of, an open air drug market in Puerto Rico. The district court estimated that the drug point had sold 977 kilograms of marijuana from 1999 through 2008. Based on defendant’s status as both the marijuana supplier and a co-owner of the drug point, the district court found this quantity was reasonably foreseeable to him. The First Circuit affirmed. The court’s use of a nine-year multiplier was not clearly erroneous, given testimony that placed him in the conspiracy no later than the beginning of 2000 until his arrest in November 2008. The court’s conclusion that each bundle of marijuana delivered by conspirators to the drug point was comprised of 25 bags of marijuana was supported by testimony from a co-conspirator. Although after 2005 defendant rented the drug point to others, he could still be held fully responsible for the drugs sold by his tenants. Defendant was still part of the conspiracy while renting the drug point, and he was aware of (and, thus, could foresee) the amount of drugs sold by his tenants. U.S. v. Sepulveda-Hernandez, 752 F.3d 22 (1st Cir. 2014).
1st Circuit approves reliance on defendant’s post-arrest statements to determine drug quantity. (254) (770) After defendant’s arrest, he admitted that he had sold 20 pounds of marijuana for roughly $29,000. He also admitted that he recently sold 400-450 pounds of marijuana to a customer in New Hampshire, and had 80-100 pounds of marijuana in a stash house. En route to the stash house, defendant rethought his original estimate and said the amount of marijuana at the stash house was only 40 to 50 pounds. The officers retrieved the 42.2 pounds of marijuana from the stash house. Defendant later unsuccessfully moved to suppress these statements. The First Circuit upheld the court’s reliance on defendant’s post-arrest statements to hold him accountable for 462.2 pounds of marijuana. There were enough badges of reliability to render the defendant’s day-of-arrest estimates trustworthy. Defendant cooperated willingly with the officers, and there were no threats of harm to his family. Also, the pricing structure of defendant’s sale to his New Hampshire customer (400-450 pounds of marijuana for $600,000) corresponded to the pricing structure of his surveilled sale (20 pounds of marijuana for roughly $29,000). U.S. v. Maguire, 752 F.3d 1 (1st Cir. 2014).
1st Circuit reverses where recorded conversations did not show second 152-gram crack transaction. (254) Defendant pled guilty to crack cocaine distribution. Based on recorded conversations between defendant and a confidential informant, the PSR concluded that defendant had acquired at least 152 grams of crack for distribution. The government argued that the recorded statements actually showed that defendant had purchased at least two distinct 152-gram supplies of crack. The district court so found, and attributed 304 grams to defendant. The First Circuit reversed, agreeing with defendant that the recordings did not establish a second 152-gram sale. The broken and garbled exchange in the recording was not a reliable estimate of weekly sales, and did not appear to be an admission by defendant that his weekly sales were 152 grams. The district judge was entitled on this record to treat defendant as a more serious offender than one who only distributed 152 grams, by either sentencing him at the high-end of his guideline range, or varying upward from it. But this must be an exercise of judgment rather than as part of a drug-quantity formula. U.S. v. Marquez, 699 F.3d 556 (1st Cir. 2012).
1st Circuit affirms drug quantity estimate based on co-conspirator testimony and recorded phone conversations. (254) Defendant participated in a large drug trafficking organization run by De Sousa. The district court held defendant accountable for 30 kilograms of heroin, relying on three sources for its estimate: (1) the testimony of government witness Grueninger, De Sousa’s closest associate, who averred in considerable detail that at least a substantial portion of the 120-125 kilograms of heroin shipped to Puerto Rico during the relevant time frame was destined for defendant; (2) the testimony of government witness Castro, who corroborated Grueninger’s testimony in several respects, and confirmed that he made sizable deliveries to defendant in Puerto Rico; and (3) recorded telephone conversations, during which various members of the criminal enterprise, including defendant, discussed topics from which some quantum of drug movement might be surmised. In light of this evidence, the court settled on 30 kilograms, significantly below the amount attributed to defendant by the government. The First Circuit upheld the drug quantity estimate. Although defendant characterized the sources as uncorroborated and generally insufficient, he offered no contrary proof. U.S. v. Valdivia, 680 F.3d 33 (1st Cir. 2012).
1st Circuit relies on co-conspirator testimony to estimate drug quantity. (254) Defendant argued that the district court gave too much weight to inherently unreliable testimony by his co-conspirators in determining drug quantity. In particular, defendant contended that co-conspirator Marquis’s testimony lacked credibility because on two occasions prior to trial, he failed to mention that defendant was one of his customers. The First Circuit found no error. Circumstances vary, and an earlier omission may or may not undermine a later account. Defendant did not identify any specific contradiction or implausibility in Marquis’s testimony. Even though Marquis did not specifically identify defendant as a customer on those prior occasions, he did identify him all along as a member of the drug-trafficking ring. The co-conspirators’ trial testimony supported the court’s drug quantity determination. The court recognized its obligation to make an individualized determination that defendant was personally accountable for 26 kilograms out of the much larger store of marijuana handled by the conspiracy. The drug quantity calculation was reasonable and sufficiently supported by the record. U.S. v. Bernier, 660 F.3d 543 (1st Cir. 2011).
1st Circuit finds no clear error in drug quantity estimate. (254) Defendant was a street seller and “runner” in a vast four-year drug-trafficking conspiracy. The district court found that defendant sold 9.2 kilograms of cocaine base, which triggered a base offense level of 38. He argued that the district court used the conspiracy-wide findings of drug quantity to sentence him rather than make an individualized calculation. The First Circuit found no error. The court assumed that defendant sold 200 capsules per shift, three times per week, for a total of 600 capsules per week. This was a reasonable inference from information in the sentencing record. He admitted working one shift per week, and the court reasonably inferred that he worked more often, from the fact that the conspiracy operated continuously, and the lack of credibility defendant exhibited on other issues. U.S. v. Rivera-Moreno, 613 F.3d 1 (1st Cir. 2010).
1st Circuit upholds estimate of drugs attributable to defendant in conspiracy. (254) Defendant pled guilty to drug conspiracy charges. The First Circuit upheld the district court’s decision to hold defendant’s accountable for 9.2 kilograms of crack, rejecting his argument that the court made a conspiracy-wide determination, rather than an individualized determination, of drug quantity. The district court made plausible extrapolations from the available information. The court used the average drug weight per capsule suggested by the scientific evidence and the average drug sales per shift suggested by the cooperating witness to arrive at a sensible starting point. This starting point was favorable to defendant because it left out drugs other than crack routinely marketed by the conspiracy. In estimating the quantity attributable to defendant, the court assumed that he worked only three shifts per week and that these shifts were during the daytime. Both of these assumptions were conservative and likely understated the regularity of his presence. U.S. v. Cintron-Echautegui, 604 F.3d 1 (1st Cir. 2010).
1st Circuit says conservative drug estimate was supported by record. (254) Defendant was convicted of distributing cocaine base and was sentenced to 120 months. On appeal, he argued that the district court relied on the testimony of unreliable witnesses to determine drug quantity. He claimed that the witnesses were unreliable because they were addicted to drugs at the time of the events about which they testified, and because they were motivated to overestimate drug quantity in order to receive sentence reductions. In light of the conservative approach taken by the court in estimating drug quantity, and the support in the record for the court’s determination, the First Circuit found no error. The testimony would likely have justified both a higher quantity of drugs and a lengthier jail sentence. The judge, however, repeatedly and appropriately exercised caution in each of its determinations regarding the drug quantity. The court used only the amounts that each witness testified he or she received from defendant, and used the lowest amounts to which each witness testified. The court also used caution by sentencing below the guideline range. U.S. v. Carl, 593 F.3d 115 (1st Cir. 2010).
1st Circuit upholds drug quantity finding despite inconsistent supporting testimony. (254) Defendant was convicted of supplying cocaine for sale in a public housing project. At trial and a sentencing hearing, a witness testified that he recalled seeing defendant make six sales of cocaine to the manager of the “drug point” where cocaine was sold, although he could not identify the quantities involved in the sales. Another witness testified that defendant sold cocaine to the manager of the drug point, that the witness had sold more than 125 baggies containing a tenth of a gram of cocaine per day for about four weeks, and that there were three or four other sellers at the drug point. FBI agents testified that defendant was frequently present at the drug point. Defendant was recorded speaking to the drug point’s manager about packaging and processing cocaine and stating that he was waiting to be paid for an eighth of a kilogram of cocaine. Based on this evidence, the district court found that defendant’s offense involved more than five but less than 15 kilograms of cocaine. The First Circuit rejected defendant’s contention that the district court erred in relying on the somewhat inconsistent testimony of the witnesses and that the district court had not clearly erred in attributing more than five kilograms of cocaine to defendant. U.S. v. Gonzalez-Velez, 587 F.3d 494 (1st Cir. 2009).
1st Circuit holds that testimony supported drug quantity finding. (254) One witness testified that on about 20 occasions he either sold or purchased one kilogram of cocaine to or from defendant. A second witness testified that he had sold “some kilos” to defendant’s brother, which were, in fact, destined for defendant himself. A third witness testified that the drug point defendant managed sold “an eighth” of cocaine on a daily basis. The First Circuit held that this evidence was sufficient to support the district court’s conclusion that at least five kilograms of cocaine were attributable to defendant. The fact that the witnesses prefaced their calculations with the word “around” or “approximately” did not make the testimony inherently unreliable. U.S. v. Vazquez, 470 F.3d 443 (1st Cir. 2006).
1st Circuit upholds use of drug weight determined by drug lab rather than weight from ATF field scale. (254) There were significant disparities among the recorded weights of the drugs seized from defendant as measured by the ATF in its initial inventory, by the Massachusetts state drug lab on the receipt it gave the ATF, and on the worksheet describing the results of the state lab’s analysis. The initial weighing by the AFT resulted in much lower drug quantities than the later two weighings. The district court concluded that the ATF scale was highly inaccurate, while defendant contended that tampering was the obvious explanation. The First Circuit agreed with the district court. All of the weights by the ATF were so divergent from the weights listed by the state lab that the district court concluded that the ATF scale was simply and grossly inaccurate. This conclusion was supported by testimony that the state lab scale was calibrated daily, and was calibrated to within a fraction of a milligram. In contrast the scale used by the ATF was an uncalibrated scale used by agents in the field, it was roughly handled by a hundred different agents, and its purpose was not to produce drug weights for evidence but to provide a rough bureaucratic accounting of drugs seized. U.S. v. Aitoro, 446 F.3d 246 (1st Cir. 2006).
1st Circuit holds that evidence of other gang members’ drug activity supported drug quantity estimate. (254) Defendant argued that the district court impermissibly multiplied drug amounts from single sales by the estimated frequency of those sales to arrive at a total of more than one kilogram. Rote multiplication of quantities from a single exchange is, taken, alone, an improper method for determining overall drug quantities. However, where the amount of drugs seized does not represent the scale of the offense, a court is permitted to approximate the quantity involved. In making its estimate here, the court looked both at gang activities and at defendant’s direct involvement with various dealers. The court also looked as sales by other members of the gang’s leadership. The First Circuit concluded that the extensive record of individual sales by gang members, added to defendant’s own activities, supported attributing one kilogram of heroin to him. U.S. v. Laboy, 351 F.3d 578 (1st Cir. 2003).
1st Circuit finds composite surveillance video and 12 controlled buys insufficient to support estimate. (254) The district court used the wrong metric conversions to calculate defendant’s offense level, resulting in a base offense level of 38 rather than 24. The First Circuit found no other evidence in the record to support a base offense level of 38. At trial, after viewing drug transactions depicted on a two-hour composite videotape, an agent estimated that about 20-25 transactions occurred hourly at defendant’s drug point. However, there was no evidence that the two-hour period captured on the videotape was reasonably representative, either as to the volume or the variety of drugs sold at defendant’s drug point during the six-month indictment period. The respective drugs involved in the 12 controlled buys (marijuana (3 buys) (9.9 grams); crack cocaine (4 buys) (3.8 grams); powder cocaine (5 buys) (3.05 grams)) did not provide sufficient support for apportioning the drugs among the three illegal drugs sold at defendant’s drug point. There was no evidence that these controlled buys were reasonably representative of the uncontrolled transactions. There is “potential for grave error where one conclusory estimate serves as the multiplier for another.” In the present case, “the risk of error was compounded by pyramiding unreliable inferences …” U.S. v. Rivera-Maldonado, 194 F.3d 224 (1st Cir. 1999).
1st Circuit upholds conservative drug quantity estimate. (254) Defendant was involved in a conspiracy that distributed large drug quantities at various housing projects. The First Circuit upheld the district court’s attribution of 1.5 kilograms of cocaine base to defendant. Testimony directly linked defendant to at least 10 cocaine base deliveries to two different locations. Defendant had been arrested at one location with 596 capsules of cocaine base in July 1994, and a co-conspirator had been arrested near there in 1995 with over 1200 capsules containing a total of 196 grams of cocaine base. Another co-conspirator testified that at least 500 capsules of cocaine base were distributed on a weekly basis from another location, and that defendant made about six deliveries. Thus, a conservative estimate of defendant’s direct involvement with 6000 capsules at two locations would yield one kilogram of cocaine base. In addition, the court could reasonable infer that the additional deliveries to the first location of at least 3000 capsules, yielding another one-half kilogram of cocaine base, would be reasonably foreseeable to defendant as part of the conspiracy. Thus, even using a conservative estimate, the district court properly attributed 1.5 kilograms of cocaine base to defendant. U.S. v. Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999).
1st Circuit upholds conservative drug quantity estimate. (254) The district court estimated that defendants were accountable for 5000 grams of crack. This was based on its finding that for nine months they were members of the conspiracy that distributed at least five ounces of crack per week. These approximates were based on the following factors: (1) the co-conspirators’ ability to produce crack on short notice in amounts ranging from 13 grams to an ounce; (2) four undercover purchases; (3) one witness’s testimony that he and a defendant agreed to the purchase of an ounce of crack weekly on consignment; and (4) numerous eyewitness accounts and surveillance of the traffic at the apartments from which they sold cocaine. The First Circuit upheld the court’s approximation as a reasoned, if not conservative, estimate of the drug quantity involved. U.S. v. Rodriguez, 162 F.3d 135 (1st Cir. 1998).
1st Circuit bases drug quantity estimate on average rate paid to couriers. (254) Defendants were involved in a conspiracy to import heroin into the U.S. In August 1994, the conspirators paid a woman $10,000 to travel to Hong Kong and bring back an unknown amount of heroin. In September 1994, they paid another woman $10,000 to bring back 229.9 grams of heroin. However, at a recorded meeting, one conspirator told the woman she had not received all the heroin that she was supposed to get in Asia. In October 1994, the conspirators offered a third woman $5000 to travel to Hong Kong to obtain drugs. This last trip was never made. A customs agent familiar with heroin smuggling testified that couriers importing heroin into the eastern U.S. are paid between $1000 to $2500 per 100 grams, and that this rate has been stable since August 1994. Using a rate of $2500 per 100 grams, the district court attributed to defendants 1000 grams of heroin—400 grams for each of the first two trips, and 200 grams for the last trip which was never made. The First Circuit affirmed relying on the custom agent’s testimony to estimate drug quantity. Drug courier services are a “market,” like drug sales, and extrapolations based on street drug prices are commonly used to determine drug quantity. The agent was cross-examined extensively, and nothing in it seriously undermined the testimony. The court guarded itself by taking the lowest end of the range offered by the agent. U.S. v. Eke, 117 F.3d 19 (1st Cir. 1997).
1st Circuit upholds converting cash into crack rather than powder cocaine. (254) Acting on an informant’s tip that two men were selling crack, an undercover agent used marked money to purchase two rocks of crack from the men. Police then entered the apartment and arrested the occupants. One of the men had plastic bundles of crack and powder cocaine in his pants pocket, and a bundle of cash, including the marked $20 bills. The district court treated the entire amount of cash as proceeds from the sale of crack. Defendant argued that the cash should not have been converted at all, and if converted, should have been treated as proceeds of powder cocaine. The First Circuit found no error. Based on the commingling of the cash and the lack of any other obvious source for it, the cash was properly converted into drugs. Because there was no direct evidence of powder sales, it was proper for the court to find that the money all represented crack sales. Although the three bags of powder suggested that defendant might be in both lines of business, this was a matter to be weighed by the trier of fact. U.S. v. Sepulveda, 102 F.3d 1313 (1st Cir. 1996).
1st Circuit upholds estimate based on range of weights given by witness. (254) A witness testified that he provided defendant with one to three ounces of cocaine three times a month for 14 months, and made seven trips to New York with defendant to buy cocaine, each trip yielding six to 12 ounces of cocaine, but with one trip netting a half kilogram. Using two ounces as the per transaction amount for defendant’s regular supply, and eight ounces as the per trip amount for six of the seven New York trips, the district court calculated that defendant was responsible for 3.83 kilograms. The First Circuit affirmed the estimate. First, defendant waived the issue by failing to object to the method of computation at the time of sentencing. Second, the estimate was reasonable based on the evidence available. The figures were drawn from ranges with relatively tight margins. U.S. v. Webster, 54 F.3d 1 (1st Cir. 1995).
1st Circuit upholds estimate that gang sold two kilos of coke a week for three years. (254) The district court estimated that the drug conspiracy sold two kilograms of cocaine per week for three years. Defendants argued that the estimate was based on unreliable evidence and improper extrapolation. The 1st Circuit approved the estimate. The figure was based primarily on general comments by various defendants estimating average volumes of business. These estimates were then corroborated by reports from cooperating co-defendants, controlled buys by government undercover operatives, and evidence indicating the size and scope of the organization. Although most of the evidence related to the last year of the conspiracy, there was some evidence dealing with previous periods. The district court “err[ed] on the side of caution” in only finding two kilograms per week, since it was less than what one conspirator reported as a “slow week” in 1990, and less than half of what another conspirator reported selling before 1990. U.S. v. Whiting, 28 F.3d 1296 (1st Cir. 1994).
1st Circuit upholds sentence where defendant did not dispute minimum drug quantity for base offense level. (254) Defendant challenged the district court’s determination that he was responsible for 49,700 pounds of marijuana for sentencing purposes. The 1st Circuit found no error. Defendant’s challenge was based exclusively on a credibility attack against one witness’s trial testimony. Not only were the district court’s findings fully supported, but defendant did not allege that he was responsible for less than the 10,000 kilograms of marijuana required to trigger a base offense level of 36. Thus, any alleged discrepancy in weight would be immaterial for guideline sentencing purposes. U.S. v. Hahn, 17 F.3d 502 (1st Cir. 1994) No. 93-1858.
1st Circuit says averages used to calculate drug quantities were not reliable. (254) A witness testified that one defendant accompanied him on 15 to 20 drug-buying trips, and that another defendant accompanied him on 10 to 15 of the trips. The witness did not assign particular quantities to particular people on particular trips, stating only that the smallest quantity he carried was four ounces and the largest quantity was one kilogram. The district court took the midpoint of both number of trips and drug quantity and determined drug quantity for each defendant by multiplying the midpoints together. The 1st Circuit reversed, holding that the “so-called average” figures used by the district court did not have adequate support in the record. The fact that the minimum carried on one trip was four ounces and the maximum was one kilogram provided no rational basis for presuming that the average amount was the mathematical midpoint between the high and low figures. The selection of a midpoint in estimating the number of trips was also without evidentiary support. U.S. v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993).
1st Circuit upholds conversion of cash into drugs. (254) The district court found that defendant was responsible for 1.2 kilograms of cocaine: she sold 1/16 of an ounce to one witness on at least 100 occasions; she sold 3/10 of an ounce to an undercover agent; the $7,115 seized from her house was drug proceeds; and she accompanied another witness on at least two drug-buying expeditions, each involving at least four ounces. The 1st Circuit affirmed. To support the mandatory minimum sentence of five years under 21 U.S.C. § 841(b)(1)(B), defendant only needed to be responsible for 500 grams. There was adequate evidence of this. The district court’s conversion of the seized cash into drugs was proper. The government presented ample evidence of defendant’s drug trafficking activities, and the volume of business transacted justified the court’s finding that the sums seized were connected to her drug dealing. U.S. v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993).
1st Circuit upholds estimate at low end of range of laboratory results. (254) Defendant was held accountable for three heroin offenses. The state toxicology laboratory estimated that the third batch of seized heroin weighed between 10.39 and 16.21 grams. The batch did not include samples previously extracted by the DEA for weighing purposes and never replaced. The district court found it probable that the third batch contained at least 12 grams, which brought the total drug quantity in all three offenses to over 20 grams. The 1st Circuit affirmed. When it is impossible or impractical to obtain an exact drug quantity, a reasonable estimate will suffice. Given the divergent laboratory estimates, the court’s finding that the most probable weight was at the low end of the continuum could not be faulted. U.S. v. Morillo, 8 F.3d 864 (1st Cir. 1993).
1st Circuit upholds conversion of currency into drugs despite possible alternative source for funds. (254) The 1st Circuit upheld the district court’s conversion of $3,866 seized from defendant’s apartment into 109.6 grams of cocaine for sentencing purposes, despite the fact that defendant suggested a “remotely plausible” source for the funds other than drugs. Although defendant claimed $2,085 of the money was lottery winnings and offered lottery receipts as proof, her co-defendant never made such a claim, thus contradicting defendant’s assertions. Although both defendants claimed that a portion of the money was sent by the co-defendant’s sister to purchase and ship a car, at the sentencing hearing, the sister was unable to provide any details concerning the car’s purchase. The judge at the sentencing hearing was in the best position to determine the credibility of the witnesses and the source of the currency. The judge was entitled to discredit defendant’s explanation and find the monies to be drug profits. U.S. v. Jackson, 3 F.3d 506 (1st Cir. 1993).
1st Circuit affirms drug estimate based on co-conspirator’s testimony. (254) The 1st Circuit affirmed that defendant was accountable for 4.25 kilograms of cocaine, based on a co-conspirator’s testimony that he distributed an average of a quarter-kilogram of cocaine per month to defendant over a 13-month period. It was unclear whether the co-conspirator was including in the average, one or both of two initial one-kilogram sales to defendant. The district court resolved that uncertainty by concluding that one of the kilograms was included in the average and the other was not. Although there were discrepancies in the co-conspirator’s testimony as to quantities and dates of drug sales, a court’s choice from among supportable alternatives cannot be clearly erroneous. U.S. v. Innamorati, 996 F.2d 456 (1st Cir. 1993).
1st Circuit upholds consideration of more drugs than reflected in chart of drug ledger. (254) The 1st Circuit upheld the district court’s determination that defendant was responsible for 510 grams of cocaine. The probation officer relied on the testimony of a co-conspirator to determine that defendant was responsible for 1588 grams of cocaine. For unexplained reasons, the district court reduced the quantity to 510 grams. A chart prepared from the co-conspirator’s drug ledger reflected the sale of only 336.5 grams of cocaine to defendant. However, it was clear from the co-conspirator’s testimony that the chart was incomplete. The chart showed sales to defendant only for the period June 1987 to February 1988, whereas the co-conspirator testified that deliveries were made to defendant starting in January 1987. U.S. v. Innamorati, 996 F.2d 456 (1st Cir. 1993).
1st Circuit upholds estimate of LSD dose based on average of prior sales. (254) Defendant was involved in the sale of LSD on August 18 and August 20, and the attempted sale of LSD on August 22. The district court determined the weight of the LSD offered but not sold on August 22 by using the average weight of the LSD doses involved in the previous sales. Defendant argued that the district court should have applied the Typical Weight Per Unit Table found in application note 11 of section 2D1.1. The 1st Circuit affirmed the use of the average dose involved in the prior sales rather than the amount specified in the Typical Weight Per Unit Table. Note 11 specifically cautions courts not to use the table if a more reliable estimate of weight is available. The table provides a very conservative estimate of weight for LSD because it does not include the weight of the blotter paper, as required by Chapman v. U.S., 111 S.Ct. 1919 (1991). U.S. v. Tracy, 989 F.2d 1279 (1st Cir. 1993).
1st Circuit affirms estimate based on co-conspirator’s testimony. (254) At trial a co-conspirator testified that defendant had delivered “18, maybe 20” additional ounces of cocaine to him during the summer of 1988. Defendant objected to the use of this estimate, arguing that it was “too casual,” and that the co-conspirator was himself a user during this period and admitted to hazy recollections or mistakes in other testimony. The 1st Circuit affirmed the use of the co-conspirator’s estimate. The district court, which heard the co-conspirator’s testimony at trial and defendant’s testimony at the sentencing hearing, was entitled to choose between them. Further, defendant himself had been recorded as advising the co-conspirator in the fall of 1988 that the co-conspirator still owed “24 something,” a figure that suggested prior deliveries of $24,000 of cocaine. The time over which defendant supplied the co-conspirator and the size of the purchases were also consistent with the 18-20 ounce figure. U.S. v. Elwell, 984 F.2d 1289 (1st Cir. 1993).
1st Circuit affirms approximation based upon drug quantities listed in ledger. (254) Police discovered in defendants’ apartment 730 grams of cocaine, $14,000 in cash and a spiral notebook with notations of various cocaine transactions. The district court computed defendants’ base offense level by adding to the 730 grams the 3,555 grams that the spiral notebook indicated that defendants had sold during the preceding few months. The 1st Circuit affirmed the calculation. A DEA agent testified that the notebook was a ledger of drug sales, that it referred to prices current during the prior two months, and that the sales added up to at least 3,555 grams of cocaine. Defendants occupied the apartment alone, the ledger was readily available in the kitchen, and the apartment contained over $14,000 in cash; likely proceeds from fairly recent drug transactions. U.S. v. Tabares, 951 F.2d 405 (1st Cir. 1991).
1st Circuit upholds calculation of offense level based upon defendant’s receipt of 11 previous express mail packages. (254) Defendant was arrested in possession of an express mail package containing three ounces of cocaine. The envelope was the 12th similar express mail package defendant had received during the past eight months. The sender’s receipt for all 12 packages were in the same handwriting, bore a series of fictitious trade names as the originator, and contained four different return addresses (three of which were nonexistent). The district court concluded that the mailings were part of a common scheme, and estimated that defendant had handled 300 grams of cocaine. The 1st Circuit upheld the determination. The repetitive nature of the mailings, their common origin and destination, their frequency over a brief time span, defendant’s admission that he supported himself by selling drugs, defendant’s lack of any known employment, and defendant’s acknowledgement that he owed the sender money for an earlier debt forged the “requisite linkage” between the shipments. This evidence also adequately supported the district court’s determination that the shipments contained cocaine. The district court’s estimation of the amount of cocaine involved was conservative and performed with adequate regard for defendant’s rights. Over 25 percent of the weight of the seized package contained cocaine. In estimating the contraband contained in the missing packages, the judge found, on average, that 20 percent of the weight was cocaine. U.S. v. Sklar, 920 F.2d 107 (1st Cir. 1990).
1st Circuit upholds district court’s calculation of cocaine. (254) Defendant argued that the district court incorrectly calculated that 1500 grams of cocaine were involved in his offense. The 1st Circuit rejected this challenge. Although the two experts who submitted evidence on the amount of cocaine differed in their findings, both experts found that the amount exceeded 1500 grams. Moreover, defendant’s expert actually estimated the amount of cocaine as higher than the expert for the government. U.S. v. Theresius Filippi, 918 F.2d 244 (1st Cir. 1990).
1st Circuit upholds conversion of $68,000 cash into cocaine for purpose of calculating relevant conduct. (254) Defendant was arrested with 4.98 kilograms of cocaine, and $68,000 cash. The district court found that the cash had come from a prior drug transaction that was part of the same course of conduct as the offense for which defendant was convicted. The district court treated the cash as relevant conduct under guidelines § 1B1.3, and considered it as representing an additional three kilograms of cocaine. The 1st Circuit held that this was proper under § 2D1.4, Application Note 2, and was not unreasonable or unfair. U.S. v. Gerante, 891 F.2d 364 (1st Cir. 1989).
2nd Circuit upholds drug quantity estimate based on court’s credibility finding. (254) The district court calculation of drug quantity was not clearly erroneous. The court based its estimate on the amount of marijuana seized at defendant’s arrest, the amount of marijuana seized at Jean-Batiste’s apartment, and the testimony of DeLuca. Although defendant correctly pointed out that DeLuca was an admitted drug dealer eager to please the government, these matters dealt with DeLuca’s credibility, which the district court was free to determine for itself. Since there was nothing in the record to suggest the district court’s credibility determinations were clearly erroneous, the Second Circuit affirmed. U.S. v. McLean, 287 F.3d 127 (2d Cir. 2002).
2nd Circuit holds defendant accountable for marijuana estimated to be in unrecovered boxes. (254) Customs inspectors intercepted 48 boxes hidden in a container to be shipped to defendant’s house. They opened one box and found marijuana, and then made a controlled delivery of the 47 unopened boxes. Defendant and two others unloaded the boxes and brought them into his house. Arresting officers only recovered 41 of the 47 boxes. The district court held defendant accountable for the marijuana in all 48 boxes. The Second Circuit agreed that defendant was responsible for the marijuana estimated to be in the six missing boxes. Defendant personally participated in unloading the 47 boxes and therefore was accountable for the marijuana in those boxes. The district court properly relied on an estimate of the amount of drugs in the six missing boxes. Each of the 42 recovered boxes weighed between 50 and 90 pounds. The district court conservatively determined that the six missing boxes weighed 50 pounds each for a total of 300 pounds. The fact that the 42 recovered boxes contained marijuana was persuasive evidence that the six missing boxes also contained marijuana. U.S. v. Prince, 110 F.3d 921 (2d Cir. 1997).
2nd Circuit says court made adequate drug quantity findings. (254) Defendant contended that the district court failed to make specific factual findings regarding the amount of marijuana attributable to him. The Second Circuit disagreed, holding the findings were adequate and supported by the evidence. The government had contended that defendant was responsible for 100‑400 kilograms of marijuana, while defendant had argued he was only responsible for 10‑20 kilograms. The district court rejected both parties’ contentions and ruled that defendant was accountable for 60‑80 kilograms. There was ample evidence to support a finding that defendant was personally responsible for at least twice that amount. t authorize the court to sentence a defendant meeting its criteria to a sentence below the guidelines range. U.S. v. Thompson, 76 F.3d 442 (2d Cir. 1996).
2nd Circuit upholds conservative estimate that contained deductions for losses and disruptions. (254) The government argued that defendant was responsible for between 5 and 15 kilograms of cocaine base. Defendant argued that he was only responsible for the much smaller quantity that police actually seized. The district court attributed between 1.5 and 5 kilograms to defendant. The Second Circuit approved the estimate, finding it was carefully considered, conservative, and based on the evidence presented. One conspirator stated that he packaged 800 vials of crack two to three times a week for about a year, which amounted to between 5.5 and 8 kilograms. The district court used a calculation of 800 vials twice a week, and then made reasonable deductions for losses and disruptions in the organization. U.S. v. Moore, 54 F.3d 92 (2d Cir. 1995).
2nd Circuit holds that court could infer long-standing drug operation. (254) Defendant was arrested in May 1989 on drug charges. The district court found that at least 15 kilograms of cocaine were involved in defendant’s drug operation based on evidence that the drug operation had been running since at least early 1989. The 2nd Circuit agreed that the district court could infer a long-standing drug operation that had been distributing cocaine for months. Defendant’s post-arrest statement admitted he was being supplied with up to a half-kilo of cocaine a week. When defendant was arrested, there were more than five operatives involved in distributing cocaine from two different apartments. The wholesale quantity suppliers were already in place and servicing the group, which operated 24 hours a day, seven days a week. U.S. v. Jones, 30 F.3d 276 (2nd Cir. 1994).
2nd Circuit relies on drug records to support quantity involved in conspiracy. (254) The 2nd Circuit found that the district court’s conclusion that defendants were accountable for 15 kilograms of cocaine was amply supported by the evidence. Drug records found in defendants’ apartment established that they were involved in the conspiracy to the extent of at least 30 kilograms of cocaine. U.S. v. Wilson, 11 F.3d 346 (2nd Cir. 1993).
2nd Circuit upholds crediting testimony about drug quantity over inconsistent testimony about profit. (254) Defendants objected to the district court’s use of testimony by a conspiracy’s leaders concerning the quantity of crack sold during the time defendants were members of the conspiracy. Because there were inconsistencies between their testimony about the amount of crack sold and the amount of profit made during the same period, defendants argued that the district court was required to use the smaller of the two quantities. The 2nd Circuit rejected this argument. An appellate court is not in a position to second-guess a district court’s weighing of the credibility of different parts of a witness’s testimony. U.S. v. Beverly, 5 F.3d 633 (2nd Cir. 1993).
2nd Circuit holds that prior trips were relevant but drug quantity was not reliably established. (254) Defendant was arrested for smuggling 427.4 grams of heroin into the U.S. from Nigeria. The 2nd Circuit held that defendant’s travel during the previous two years was part of the same course of conduct, but that the quantity of drugs involved was not proved by a preponderance of the evidence. Defendant’s conflicting passport accounts and his work attendance records proved that he made eight trips to Nigeria over a 15-month period on more than one passport. It could also be inferred that he imported heroin during each of these journeys because he used two passports, traveled frequently, avoided using direct flights and could not have afforded the airfare on his $12,000 annual salary. However, there was no proof that he imported 427.4 grams of heroin on each of his seven other trips. Only “speculation” linked defendant to importation of drugs beyond 427.5 grams. U.S. v. Shonubi, 998 F.2d 84 (2nd Cir. 1993).
2nd Circuit affirms sufficiency of evidence supporting drug quantity determination. (254) The 2nd Circuit affirmed that there was sufficient evidence supporting the district court’s determination that defendant conspired to sell 14.7 kilograms of cocaine and .336 kilograms of heroin. The conclusions were based on a government-submitted report analyzing wiretap conversations concerning drug quantities and on the judge’s personal review of the 39 tapes containing these conversations. The judge stated that the government’s interpretation of the wiretaps was credible and convincing, and one witness’s trial testimony regarding drug quantity corroborated the government’s report. U.S. v. Lasanta, 978 F.2d 1300 (2nd Cir. 1992), abrogated on other grounds by Florida v. White, 526 U.S. 559, 119 S.Ct. 1555 (1999).
2nd Circuit upholds determination of drug quantity using seized packages as average weight of other shipments. (254) The 2nd Circuit affirmed the district court’s determination under section 2D1.1(c)(8) that defendants’ conspiracy involved 400 kilograms (about 880 pounds) of marijuana. The warrant to search a co-conspirator’s apartment described two UPS packages as weighing 36 and 55 pounds. Another co-conspirator testified that during a two-year period, drug shipments were sent by UPS over 12 times. Numerous other shipments were delivered by car or truck, with most weighing from 30 to 40 pounds. Although the co-conspirator did not provide weight estimates of the dozen or so packages sent by UPS, it was logical for the district court to consider the weight of the seized packages as appropriate examples. U.S. v. Moore, 968 F.2d 216 (2nd Cir. 1992).
2nd Circuit affirms estimation of drug quantity based on defendant’s admissions. (254) The 2nd Circuit held that the evidence was sufficient to establish the quantity of heroin defendant sold in uncharged sales. Defendant admitted to the probation officer that he had sold 80 glassine envelopes every two or three days for a few years to support his drug and alcohol addictions. The judge found that defendant had engaged in these heroin sales over at least a two-year period. He adopted a conservative 300-day period and estimated sales during that period at a rate of 80 glassine envelopes every three days. The judge then multiplied the resulting 8,000 bags by .05 grams, to arrive at 400 grams. This was corroborated by the quantities of heroin that defendant sold to undercover officers and possessed at the time of his arrest. Defendant sold 60 glassine envelopes of heroin to undercover officers over a four-day period, and was arrested one week later in possession of 89 additional envelopes. All of these envelopes contained approximately .05 grams of heroin. U.S. v. Colon, 961 F.2d 41 (2nd Cir. 1992).
2nd Circuit remands again because sentence was based on co-conspirator’s unexplained income. (254) Defendant was a “lieutenant” in a cocaine conspiracy. The district court initially computed his offense level by (1) approximating how much cocaine was distributed based on the amount of money spent by the leader during the conspiracy, and (2) attributing the full amount to defendant. In the first appeal in this case, U.S. v. Mickens, 926 F.2d 1323 (2nd Cir. 1991), the 2nd Circuit approved this method in general, but found insufficient evidence linking defendant to the quantity of cocaine. On remand, the district court again attributed the entire quantity to defendant. The 2nd Circuit again reversed and remanded, ruling that under the existing evidence, defendant should be sentenced only for the cocaine he personally sold. If new evidence established what portion of the leader’s income was attributable to the conspiracy in which defendant was involved, he could be sentenced for that quantity, as long as that quantity was reasonably known by or foreseeable to defendant. U.S. v. Jacobs, 955 F.2d 7 (2nd Cir. 1992).
3rd Circuit upholds drug quantity calculation, even though only one of two baggies was tested. (254) Defendant was convicted of distributing crack cocaine. At sentencing, the government’s forensic chemist testified that in accordance with standard lab procedures he tested the contents of only one of the two baggies purchased by the confidential informant from defendant in the arranged drug transaction. Defendant argued that he should only be held responsible for the weight of the crack in the tested baggie (5.494 grams), not the total weight of both baggies (12.05 grams). The Third Circuit ruled that in light of the lab’s established testing procedure, the similar size and appearance of both packages, the incriminating circumstances of the transaction (the informant had agreed to purchase 14 grams of crack), the weight calculation was reasonably reliable. U.S. v. Self, 681 F.3d 190 (3d Cir. 2012).
3rd Circuit says court erred in refusing to determine amount of crack. (254) Defendant purchased three to five kilograms of cocaine powder from a wholesale distributor in New York City, delivered cocaine to street level dealers, and personally “cooked” at least 200 grams of cocaine powder into crack cocaine. The court found that defendant was responsible for the powder cocaine and for “some amount” of crack, but found that the crack was “encompassed in level 30,” the base offense level it assigned to defendant. The Third Circuit held that the district court erred in refusing to determine the amount of crack for which defendant was responsible. Since the court found that defendant was responsible for “some amount” of crack cocaine as well as powder, it was required to convert each controlled substance into a volume of marijuana, pursuant to the guidelines’ Drug Equivalency Tables, and then select the offense level that applied to the aggregated quantities. The district court’s conclusion that the crack was encompassed in the base offense level of 30 was erroneous because it was tantamount to holding that defendant was not responsible for any crack whatsoever. Even if defendant was responsible for only the lowest amount of cocaine powder covered by level 30, three kilograms, that amount converts to a marijuana equivalent of 700 kilograms. Thus, any amount of crack above 15 grams, the equivalent of 300 grams of marijuana, would place defendant above the ceiling for level 30. The evidence established that defendant was responsible for more than 15 grams of crack. U.S. v. Boone, 279 F.3d 163 (3d Cir. 2002).
3rd Circuit says pricing call insufficient to attribute additional drugs to defendant. (254) The district court attributed one kilogram of cocaine to defendant based on an intercepted phone call from defendant to his supplier in which defendant asked what “the numbers” were on a kilogram of powder cocaine. The Third Circuit found this phone call insufficient to attribute a kilogram to defendant. Although the pricing call could have meant that defendant had one kilogram in his possession and was ready to resell it at the price designed by the supplier, it was just as likely that defendant was obtaining price information in general or checking to see how much he would have to pay for his next kilogram. Since there was no evidence that a kilogram ever changed hands, the district court erred in attributing a kilogram of cocaine to defendant based on this conversation. U.S. v. Gibbs, 190 F.3d 188 (3rd Cir. 1999).
3rd Circuit uses drug quantities for four months to estimate amount for 31 months. (254) An FBI agent testified that a drug conspiracy received 111 kilograms of powder cocaine during the four-month period in which the government wiretapped defendant’s phone. From that number, the government asserted that the conspiracy handled at least 150 kilogram over the life of the conspiracy, which ran from the summer of 1992 through April 1995, about 31 months. Moreover, the 111-kilogram estimate was conservative: the electronic surveillance did not cover every day between November 1994 and April 1995; defendant used other phones that the government did not wiretap; and if the conversation involved an unspecified number of kilograms, the government attributed only one kilogram to the conversation. The Third Circuit held that the district court did not clearly err in finding that the government had proved that over 150 kilograms of powder were attributable to defendant. U.S. v. Gibbs, 190 F.3d 188 (3rd Cir. 1999).
3rd Circuit upholds estimate derived from amount sold on one day. (254) Although only a small quantity of cocaine was actually seized, there was evidence that defendant’s organization sold large drug quantities. The most specific evidence of volume was one worker’s statement that in one shift he took in $12,000. In order to take into account the days in which sales were not that high or days in which no sales were made, the district court reduced by 50 percent the government’s proposed 255 kilogram estimate based on 12 ounces a day for the period of the conspiracy. The 3rd Circuit upheld the estimate. Cutting the government’s estimate in half was not arbitrary, but a “reasonable calculation by the district court, erring on the side of caution.” U.S. v. Paulino, 996 F.2d 1541 (3rd Cir. 1993).
3rd Circuit extrapolates from weight of 15 tested vials to determine weight of 104 untested vials. (254) Defendant was arrested with 119 vials of a chunky white powder. Fifteen vials were analyzed by a police chemist, who determined that they contained 1381 milligrams of a substance containing cocaine base. From the weight of the substance in these 15 vials, the chemist projected that the total weight of the substance in all 119 vials was 9.866 grams, and defendant was sentenced accordingly. The 3rd Circuit upheld the use of the chemist’s extrapolation. If a defendant challenges a drug quantity estimate based on an extrapolation, the government must show, and the court must find, that the quantity was determined in a manner consistent with accepted standards of reliability. Here, the government met that standard. The government elicited specific testimony from the chemist on how the analysis was conducted, including testimony that the samples were chosen at random. The procedure was the accepted methodology among chemists working for the local police. U.S. v. McCutchen, 992 F.2d 22 (3rd Cir. 1993).
3rd Circuit holds that evidence of drug quantity did not have sufficient indicia of reliability. (254) The 3rd Circuit held that the district court’s determination of drug quantity did not have “sufficient indicia of reliability,” given numerous inconsistencies, the fact that the source of most of the critical evidence was an addict-informant with an impaired memory, and only a single conclusory finding as to drug quantity. The informant’s estimate in the PSR (6.8 kilograms) was significantly higher than the estimate he gave at the trial of co-conspirators (2.2 to 2.7 kilograms). The district court did not address the inconsistency or explain why it followed the hearsay estimate in the PSR rather than the lower estimate given under oath. The informant’s testimony contained other inconsistencies as well. The case was remanded for the district court to base its decision on facts that have sufficient indicia of reliability to support a conclusion that they are probably accurate. U.S. v. Miele, 989 F.2d 659 (3rd Cir. 1993).
3rd Circuit reverses estimation of drug quantity as speculation. (254) The 3rd Circuit ruled that the district court’s estimation that one drug transaction involved 62.5 grams of heroin amounted to speculation. The evidence regarding this transaction consisted of transcripts of two taped telephone calls in which defendants agreed to supply heroin to a co-conspirator. Neither call contained any reference to quantity. The presentence report observed that based on “other telephone calls” the government stated that this conversation referred to 62.5 grams of heroin. However, the report did not explain what those other calls were. The government’s argument that the calls must have referred to at least 62.5 grams because defendants always dealt in quantities of at least that amount was speculation. U.S. v. Collado, 975 F.2d 985 (3rd Cir. 1992).
4th Circuit says defendant waived challenge to use of drug buyer’s estimate of drug quantity. (254) Defendant pled guilty to crack cocaine charges. The probation officer concluded that defendant sold far more crack than the six sales police officers recorded. The probation officer relied on statements by Battle, who claimed to have purchased drugs from defendant from 2000 through 2008. The probation officer estimated that defendant sold Battle 1.43 kilograms of crack cocaine during this time period. Defendant challenged the district court’s reliance on Battle’s statement, insisting that Battle was “blatantly lying” to curry favor with prosecutors. The district court gave defendant the opportunity to delay sentencing to allow the parties more time to obtain more information, but defendant chose to proceed. The Fourth Circuit held that defendant waived his objection to the district court’s reliance on Battle’s statement in the PSR. Defendant made the conscious choice at sentencing to proceed on the basis of the information contained in the PSR, including Battle’s statement. U.S. v. Robinson, 744 F.3d 273 (4th Cir. 2014).
4th Circuit upholds use of multiple hearsay to calculate drug quantity. (254) The district court found defendant responsible for 408.1 grams of crack cocaine, based in part on hearsay statements from witnesses who purchased 369.6 grams of crack from defendant. Defendant argued that information provided by two paid informants, Ready and Latta, via telephone interviews with an ATF agent, was not sufficiently reliable. The ATF agent did not testify at sentencing; instead, a deputy testified regarding the reliability of Latta and Ready. The district court found that Ready’s and Latta’s information was sufficiently reliable to serve as the basis for calculating defendant’s drug quantity. The Fourth Circuit upheld the use of the hearsay information. The deputy’s testimony showed that Latta had first-hand knowledge of the drug quantity attributable to defendant. The fact that Latta and Ready were drug users who cooperated with law enforcement to “work off” pending felony charges did not make their statements inherently unreliable. Here, the deputy testified regarding the women’s previous reliability, explained that he had been able to verify their past information, and stated that their information had been used in obtaining arrests and prosecutions. U.S. v. Crawford, 734 F.3d 339 (4th Cir. 2013).
4th Circuit says jury’s quantity finding does not limit judge’s ability to find higher quantity. (254) At defendant’s trial on drug-trafficking offenses, the jury returned a special verdict finding that defendant’s offense involved at least 500 grams but less than five kilograms of cocaine. At sentencing, the government sought to present evidence that defendant was involved in the distribution of between 90 and 100 kilograms of cocaine. A finding that defendant distributed 90 to 100 kilograms of cocaine would not have resulted in a higher maximum statutory sentence than the jury’s finding that the offense involved between 500 grams and five kilograms. The district court found that it was not free to increase defendant’s punishment based on its own finding that defendant’s offense involved a greater quantity of drugs than found by the jury. The Fourth Circuit held that the jury’s finding established the maximum statutory sentence that defendant could receive, but did not limit the district court’s decision to find that defendant’s offense involved a greater quantity of drugs and impose a higher sentence within that statutory maximum. U.S. v. Young, 609 F.3d 348 (4th Cir. 2010).
4th Circuit says court are not required to “err on the side of caution” in approximating drug quantity. (254) The district court combined the 2996 pills of ecstasy found in defendant car with the “drug equivalent” of the $67,987.96 of currency found with it. The court determined the “drug equivalent” of the currency by dividing the value of the currency by $20, the estimated cost of a single pill of ecstasy. Defendant did not dispute that the currency was drug money, but argued that the court improperly failed to “err on the side of caution” in its valuation of ecstasy at $20 per pill. The Fourth Circuit held that sentencing courts are not required to “err on the side of caution” in approximating drug amounts; it must only determine that it was more likely than not that the defendant was responsible for at least the drug quantity attributable to him. Here, because the court accepted the valuation of $20 per dose from the PSR, defendant had “the affirmative duty to show that the information contained in the report [was] inaccurate or unreliable.” The PSR’s estimate was supported by a DEA officer. Because defendant failed to produce any evidence to suggest that the $20 per pill amount was unreliable, it was not clear error for the district court to accept the PSR’s price. U.S. v. Kiulin, 360 F.3d 456 (4th Cir. 2004).
4th Circuit upholds drug quantity finding despite discrepancies in witness’s statements. (254) Defendant challenged the district court’s drug quantity finding, noting that there was a discrepancy between the trial testimony of Ward (indicating Ward had only received cocaine from defendant on a few occasions) and Ward’s statements to agents outside of court (which suggested Ward had purchased around 567 grams of cocaine from defendant). Because the sentencing judge only had to find the relevant drug quantities by a preponderance of the evidence, the Fourth Circuit found that the discrepancy in Ward’s testimony was not fatal to the government’s proof. The self contradictions in Ward’s testimony essentially raised a credibility issue – a question of fact that the district court had to resolve at sentencing. The district court’s factual findings regarding the relative credibility of Ward’s two conflicting stories were not clearly erroneous. Neither were the resulting drug quantity determinations. U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002).
4th Circuit upholds consideration of drug addict’s estimate of drug quantity. (254) Defendant challenged the court’s attribution of certain methamphetamine seen in his possession, because a drug-addicted witness’s estimate supplied the only evidence of quantity. The witness testified that he saw defendant with “three or four bags,” that he did not see the bags weighed, that he estimated the bags to weigh “about four pounds, maybe five” based on a third party’s estimate of their financial value, and that defendant gave him pure meth out of one of the bags. The district court used the lower estimate of four pounds, or 1.98 kilograms, and the government otherwise established 96.65 grams of pure meth. Noting that the low end of the witness’s estimate could almost be halved without any effect on defendant’s offense level, the Fourth Circuit saw no error in the district court, on remand, again considering the testimony in question. U.S. v. Benenhaley, 281 F.3d 423 (4th Cir. 2002).
4th Circuit holds that trial testimony did not support drug quantity finding. (254) Relying on trial testimony and defendant’s proffer statement, the district court held defendant accountable for 1000 kilograms of marijuana. After ruling that the court’s consideration of the proffer statement was improper, the Fourth Circuit examined whether the 1000 kilogram finding could be supported by the trial testimony and the PSR. The panel held that it could not. The PSR’s calculation of 1652.9 kilograms was based on a DEA agent’s review of his notes from the interviews he conducted with all of the government’s witnesses, presumably including those witnesses not called to testify at trial. At sentencing, the court asked the government to refresh its memory as to the trial testimony. The prosecutor stated that the trial witnesses testified that over 700 kilograms were involved. Relying on this, the court found that defendant distributed 1000 kilograms. However, the trial testimony provided no basis for this finding. Much of the testimony was conflicting and imprecise. The DEA agent himself testified at trial that based on the trial witnesses’ testimony, defendant had distributed only about 1000 pounds, or 450 kilograms, of marijuana. U.S. v. Lopez, 219 F.3d 343 (4th Cir. 2000).
4th Circuit upholds estimate of amount in crack vial. (254) On March 8th, defendant and an associate were arrested after selling crack to an undercover officer from their car. The crack was carried in a candy vial. In his statement to police immediately after the arrest, defendant confessed that his associate possessed a candy vial “half‑way full of crack” on March 8th, and that he had seen the associate with a full candy vial of crack on February 18th. He stated that the half‑vial contained “probably a couple hundred dollars worth” of crack. The government introduced evidence that a full candy vial could hold about 7.8 grams of crack. The district court held defendant accountable for 9.5 grams (6.25 grams for February 18th and 3.25 for March 8th). The Fourth Circuit affirmed the district court’s reliance on the amount of crack defendant saw in the associate’s candy vial (half full) rather than his more vague statement concerning the dollar value of the drugs involved. U.S. v. Cook, 76 F.3d 596 (4th Cir. 1996).
4th Circuit upholds use of co‑conspirator’s drug quantity estimate. (254) The district court adopted the PSR’s calculation that defendant was responsible for about six kilograms of cocaine. Defendant argued that the estimate erroneously relied on the uncorroborated and contradictory testimony of a co‑conspirator. The Fourth Circuit upheld the court’s reliance on the co‑conspirator’s estimate. The court’s conclusion was based on the co‑conspirator’s lowest estimate of the number of trips he made (six) and one kilogram per trip. The amount per trip was consistent with the co‑conspirator’s statement that he brought back “a key and a half or less” each time, and with his estimate that he brought back about two kilograms per month during the entire nine month period. The district court’s estimate was inexact, but did not rise to an inappropriate level of uncertainty. U.S. v. Lamarr, 75 F.3d 964 (4th Cir. 1996).
4th Circuit finds court double counted cocaine and proceeds from sale of cocaine. (254) The district court attributed 693 grams of cocaine to defendant. The Fourth Circuit held that 210 grams were improperly double counted. One witness testified that he saw defendant cutting eight ounces (226.8 grams) of cocaine, and also saw defendant receive $7,000. The district court improperly attributed both the 226.8 grams and the cocaine equivalent of $7,000 (196 grams), even though it was clear that the $7,000 represented proceeds from the sale of 226.8 grams. Therefore, the amount of cocaine attributable to defendant should have been reduced by 196 grams. In addition, the district court attributed an additional 226.8 grams to defendant based on a taped phone call on June 7, 1993 in which defendant stated that he was trying to get rid of eight ounces. The court then attributed an additional 14 grams based on a 14 ounce sale defendant made three days later. The record supported the conclusion that this 14 grams was part of the eight ounces that defendant had referred to on June 7. Thus, the court improperly attributed an additional 14 grams to defendant. U.S. v. Morsley, 64 F.3d 907 (4th Cir. 1995).
4th Circuit agrees that defendant was responsible for over 1000 kilograms of marijuana. (254) The Fourth Circuit upheld the district court’s finding that defendant was responsible for over 1000 kilograms of marijuana. The evidence showed that he was dealing in extremely large quantities of marijuana. The total amounts wrapped and delivered by two conspirators defendant supervised exceeded 1000 kilograms. Moreover, the government introduced evidence that suggested defendant possessed or sold hundreds or even thousands of additional kilograms. One witness testified that defendant mentioned that one of his cohorts had stolen a shipment of more than 900 kilograms of marijuana. U.S. v. Basher Al-Talib, 55 F.3d 923 (4th Cir. 1995).
4th Circuit approves use of cake mix to approximate amount of powder cocaine. (254) The government offered four exhibits of angel food cake mix to approximate the amount of crack cocaine that could be attributed to defendant. An ATF agent testified that he had been advised by the DEA that angel food cake mix and cocaine have equivalent weights. Using the exhibits in her testimony, a co-conspirator testified about the various quantities of cocaine that she and others had converted into crack cocaine for defendant. The Fourth Circuit upheld the court’s use of this testimony to determine that defendant was responsible for between 500 grams and 1.5 kilograms of crack cocaine. The use of the cake mix was not clear error. Based on the co-conspirator’s testimony alone, the district court could have attributed to defendant over 500 grams of crack. The court’s estimation of the amount of cocaine base that would result from the cocaine powder was proper. U.S. v. Ricco, 52 F.3d 58 (4th Cir. 1995).
4th Circuit relies on prior caselaw to determine yield of cocaine base from cocaine. (254) Although no chemist testified, the Fourth Circuit held that the district court permissibly relied on U.S. v. Paz, 927 F.3d 176 (4th Cir. 1991) to estimate that 100 grams of powder cocaine would yield 88 grams of cocaine base. U.S. v. Ricco, 52 F.3d 58 (4th Cir. 1995).
4th Circuit rejects need for specific findings as to date and amount in each drug transaction. (254) The district court found that defendant knew that at least five kilograms of cocaine were involved in his drug conspiracy. Defendant argued that the court was required to make specific findings as to when his drug transactions occurred and how much cocaine was involved in each transaction. Then it must calculate the total amount of cocaine attributable to him. The 4th Circuit rejected the need for specific findings as to the date and amount. The district court carefully evaluated wiretap evidence that was presented at trial and briefed by both sides at sentencing. The court heard conversations in which defendant agreed to sell various co-conspirators 1/4 to 1/2 kilogram of cocaine. Accordingly, the court found that defendant was “a major player in street distribution” who was “daily involved in drug distribution.” U.S. v. Kennedy, 32 F.3d 876 (4th Cir. 1994).
4th Circuit relies on leader’s estimate to determine defendant’s accountability for drugs. (254) Defendant challenged the district court’s finding that at least five kilograms of cocaine base were attributable to him. The 4th Circuit upheld the finding, which was based on the leader’s estimate of the total quantity of crack sold by the ring. Since the leader described defendant at trial as being closest to him within the drug ring, the use of this figure was not erroneous. The leader was the head of the organization and was the person who best knew the amount involved. U.S. v. D’Anjou, 16 F.3d 604 (4th Cir. 1994).
4th Circuit bases estimate on cash taken in by drug house. (254) The 4th Circuit affirmed that a conspiracy involved at least 15 kilograms of cocaine based upon estimates by witnesses of the amount of cash taken in during a shift at one of the conspiracy’s drug houses. One witness testified that during the last half of 1987 the average weekly intake of cash was around $40,000 to $45,000, and that from the last half of 1988 to 1989 it increased to $60,000. Police testimony indicated that the street price for a kilogram of cocaine was $200,000. At this price, 200 grams of cocaine per week were distributed in 1987, and 300 grams per week were distributed in the second half of 1988 through 1989. This amounted to 5.2 kilograms during the last half of 1987, 13.0 kilograms in 1988 and 15.6 kilograms in 1989. Most of the other witnesses gave estimates which exceeded these amounts. U.S. v. Chambers, 985 F.2d 1263 (4th Cir. 1993).
4th Circuit upholds estimate despite failure to determine drug sampling’s standard deviation. (254) Defendant was arrested with 85 capsules of heroin in his digestive tract. A DEA chemist testified that he determined the weight of the heroin by weighing a small sample of the capsules, and extrapolating the total weight from that sample. Defendant claimed the estimate was unreliable, since the chemist did not know the standard deviation of the sample he selected. The 4th Circuit rejected defendant’s contention that the guidelines require such scientific or statistical precision in the calculation of drug quantities. Other practices used by federal courts, such as converting money into drug quantity based on the drug’s street value, yield only very rough estimates of quantity. A district court’s finding of quantity is not erroneous if based on evidence possessing sufficient indicia of reliability to support its probable accuracy. The chemist’s testimony met that standard. U.S. v. Uwaeme, 975 F.2d 1016 (4th Cir. 1992).
4th Circuit upholds converting seized cash into drug equivalency to determine base offense level. (254) Various drugs, drug paraphernalia and $279,000 in cash were seized from defendant’s home. In determining defendant’s base offense level, the district court converted the seized cash into an equivalent cocaine quantity, which was then added to the drugs actually seized from defendant. The equivalent cocaine quantity was determined by dividing $32,000 (the price that defendant had previously agreed to sell a kilogram of cocaine) into $279,000 to arrive at 8.736 kilograms of cocaine. The 4th Circuit held that the conversion of cash into drugs was authorized by application note 4 to section 2D1.4, which states that the judge may approximate quantity when the amount of drugs seized does not reflect the scale of the offense. Here defendant admitted to DEA agents that he had obtained a majority of the money from other previous drug transactions and that if it had not been seized, it would have been picked up by an individual to be used to purchase more cocaine. U.S. v. Hicks, 948 F.2d 877 (4th Cir. 1991).
4th Circuit rejects district court’s interpolation between two offense levels. (254) Defendant argued that the amount of cocaine involved in his offense was 13.7 kilograms, which would result in a base offense level of 32. The probation office found that the offense involved 17.3 kilograms, which would result in a base offense level of 34. The district court did not determine the amount of cocaine involved, but assigned a base offense level of 33, splitting the difference between levels 32 and 34. The 4th Circuit rejected this calculation, and remanded the case for resentencing. Although a previous version of the guidelines authorized interpolation when it was uncertain whether the quantity of drugs fell into one category or another adjacent category, this reference had been deleted from the guidelines at the time defendant was sentenced. The law in effect when the district court sentenced defendant required the court to determine the quantity of drugs involved, and then apply the appropriate guideline sentence. U.S. v. Engleman, 916 F.2d 182 (4th Cir. 1990).
5th Circuit upholds finding that cash found in house with drugs and weapon was drug proceeds. (254) Defendant argued that the district court erred in calculating the amount of drugs attributable to him by considering $1560 in cash found at his home to be the equivalent of seven grams of cocaine base. He argued that the court’s assumption that the cash was drug proceeds was pure speculation. The Fifth Circuit ruled that the district court did not commit clear error in its finding that the cash constituted drug proceeds. Authorities also found at the house drugs and a firearm. U.S. v. Henderson, 254 F.3d 543 (5th Cir. 2001).
5th Circuit says all 42 shipments contained marijuana even though only three seized. (254) From February 1995 to June 1996, defendant used legitimate freight companies to ship 42 boxes that looked like ordinary freight but contained marijuana. The government seized only three of the shipments made at the tail end of the conspiracy, but the district court assumed that all 42 shipments contained marijuana. Using each shipment’s total weight, the court approximated the amount of marijuana by assuming that each unseized shipment had the same percentage of marijuana as the average of the seized shipments. The Fifth Circuit held that the unseized shipments bore sufficient indicia of similarity to the seized shipments to support the district court’s finding that all of the shipments contained marijuana. Defendant made his initial contact with drug suppliers before February 1995. The documented shipments sent after this date were packaged in a similar fashion using the same few shipping companies. All the shipments were addressed to non-existent companies. Furthermore, defendant offered no credible evidence that the boxes contained anything other than drugs. U.S. v. Reveles, 190 F.3d 678 (5th Cir. 1999).
5th Circuit holds that facts in PSR supported drug quantity estimate. (254) Defendant and others smuggled cocaine and marijuana into the U.S. from Mexico. The PSR reported that defendant was part of three border crossings, one of which was known to have involved cocaine, the smuggling enterprise primarily involved cocaine, and the smallest cocaine seizure was 219.99 kilograms. The Fifth Circuit held that these facts supported the court’s finding that defendant was responsible for at least 150 kilograms of cocaine. U.S. v. Medina, 161 F.3d 867 (5th Cir. 1998).
5th Circuit holds reliance on PSR without supporting documents was harmless error. (254) Defendant was convicted of marijuana conspiracy. His PSR held him responsible for 10,074 kilograms of marijuana, based primarily on information in various debriefings, recorded meetings and telephone calls, and on the amount of marijuana seized in the different arrests of co-conspirators. Defendant challenged the drug quantity finding, since the debriefings, recorded meetings and telephone calls upon which the probation officer relied were not attached to the PSR. The Fifth Circuit held that any error in relying on the PSR was harmless, because even if the sentence were based only on amounts proven at trial, it would not change. Defendant conceded that the government proved he was responsible for 4,802 kilograms at trial. This would result in an offense level of 38, which when added to an obstruction of justice enhancement, would result in a sentencing range of 292-365 months. Defendant’s 360-month sentence fell within this range. U.S. v. Narviz-Guerra, 148 F.3d 530 (5th Cir. 1998).
5th Circuit upholds reliance on co-conspirator’s drug quantity estimates. (254) Defendant was convicted of drug charges. The district court held him accountable for more than 3000 kilograms of marijuana, based on the PSR’s conclusion that 3108 kilograms were attributable to him. Defendant challenged the reliability of this calculation, which was based on the testimony of a co-conspirator. The co-conspirator testified under cross-examination that the unseized quantities of marijuana were guesses and that the actual quantities could have been smaller. The Fifth Circuit found no error in the court’s reliance on the co-conspirator’s testimony. The fact that the co-conspirator’s testimony was somewhat imprecise did not preclude reliance on it because the district court may consider estimates for sentencing purposes. Moreover, defendant did not present any rebuttal evidence establishing that the drug quantity information in the PSR was materially untrue. U.S. v. Alford, 142 F.3d 825 (5th Cir. 1998).
5th Circuit rejects need for physical or scientific analysis of drugs to estimate quantity. (254) Defendant was convicted of distributing and conspiring to distribute cocaine and cocaine base. Based on information from a co-conspirator, the PSR found defendant distributed 1,637 grams of crack. Defendant argued that this was a “highly suspect” account by a convicted drug dealer who could have exaggerated defendant’s involvement to gain more favorable treatment. Moreover, the account was not substantiated by scientific analysis or physical evidence and it described events occurring almost five years before sentencing. The Fifth Circuit rejected defendant’s contention because neither physical nor scientific analysis of the drugs is required to determine drug quantity. Comment 12 to § 2D1.1 authorizes the court to approximate the quantity of drugs when there is no drug seizure. The court’s approximation must simply bear “sufficient indicia of reliability to support its probable accuracy.” Conjectural assertions regarding the co-conspirator’s motives were insufficient to rebut the PSR’s presumptive reliability. U.S. v. Franklin, 148 F.3d 451 (5th Cir. 1998).
5th Circuit upholds drug quantity estimate from co-conspirator. (254) Defendant was convicted of conspiracy and various substantive offenses arising out of a marijuana importation and distribution enterprise. The district court found him responsible for 19,000 kilograms of marijuana, yielding an offense level of 36 because it was between 10,000 and 30,000 kilograms. The majority of the 19,000 kilogram figure was based on the testimony of a co-conspirator, who, after his arrest, told police that he had driven as many as 80 loads averaging 500 pounds per load. However, at trial, the co-conspirator testified that the loads weighed between 300 and 400 pounds. The Fifth Circuit found any error in the court’s use of the higher number was harmless. Even if the PSR had used the lowest estimate of the weight per load (300 pounds), the total quantity would still have been greater than 10,000 kilograms. Although defendant challenged the veracity and reliability of the testimony, the court resolved the factual disputes by explicitly accepting the factual statements in the PSR. U.S. v. Brito, 136 F.3d 397 (5th Cir. 1998).
5th Circuit converts $90,000 into five kilograms of cocaine. (254) Defendants argued that the district court erred in converting $90,000 in cash delivered by one defendant to a co-conspirator into five kilograms of cocaine, contending that there was no evidence that the cash represented proceeds of drug transactions. The Fifth Circuit upheld the conversion of the cash into cocaine. A co-conspirator testified that when defendant delivered the money, the recipient complained that the money was short. There was evidence that when the first defendant called the second defendant to discuss the shortage, the first defendant told the second that he would be “minus one.” The co-conspirator testified that “minus one” meant one “kilo.” It was reasonable to infer that “minus one” was a reference to a kilogram of cocaine. Additionally, there was evidence that $18,000 was a reasonable price for a kilogram of cocaine. Although defendants also trafficked in marijuana, there was no evidence of a single marijuana shipment large enough to account for proceeds of $90,000. There was considerable evidence of cocaine shipments equaling or exceeding five kilograms. U.S. v. Johnston, 127 F.3d 380 (5th Cir. 1997).
5th Circuit upholds finding of drug quantity based on estimate. (254) Under 21 U.S.C. § 841(b)(1)(A)(viii), a defendant with two or more prior felony drug convictions who possesses or manufactures more than 100 grams of methamphetamine must be sentenced to life in prison. The Fifth Circuit upheld the district court’s reliance on a DEA agent’s testimony to find defendant responsible for more than 100 grams of methamphetamine. The DEA agent estimated that the methamphetamine he found at defendant’s residence was over 500 grams. Although the DEA agent did not actually weigh it, he relied on an equation to calculate the weight, based on the size of the containers found and the percentage of the methamphetamine in samples taken. U.S. v. Dickey, 102 F.3d 157 (5th Cir. 1996).
5th Circuit upholds drug quantity estimate. (254) Defendants were involved in a large conspiracy to distribute marijuana. The Fifth Circuit held that the district court properly estimated the amount for which each individual defendant was responsible. The district court found that the quantities of marijuana recommended in the PSRs were properly attributable to these defendants as “within the scope of the agreement” and “reasonably foreseeable.” In finding one defendant responsible for 1000 kilograms, the district court expressly drew upon corroborated testimony that a courier transported shipments of marijuana on at least 18 occasions. The courier further testified that these shipments averaged from 200‑250 pounds. An average shipment of 120 pounds would have been sufficient for the total amount of marijuana to exceed 1000 kilograms. U.S. v. Castillo, 77 F.3d 1480 (5th Cir. 1996).
5th Circuit affirms drug quantity based on DEA agents’ testimony about informants’ reports. (254) Defendant attended a meeting with co-conspirators at a motel. He testified that he was told to expect a one pound (452.8 grams) delivery of methamphetamine, but the bag was short when he received it and he left the motel with only 10 ounces (283 grams). A DEA agent testified that he had three informants in the motel room who each reported to him the amount of drugs delivered. One reported that there were 566 grams, and the other two reported that there was one pound. The Fifth Circuit upheld the court’s decision to credit the DEA agent’s testimony and hold defendant accountable for 452 grams. Faced with conflicting reports of the amount of drugs involved, the district court was free to make a credibility choice. U.S. v. Edwards, 65 F.3d 430 (5th Cir. 1995).
5th Circuit excludes negotiated amount in finding mandatory minimum quantity. (254) Defendant was sentenced to a mandatory life term under 21 U.S.C. §§841(a)(1)(A)(i) and 846. In assessing whether defendant’s drug quantity qualified him for that sentence, the 5th Circuit concluded that only quantities actually possessed with the intent to distribute could be considered. Unlike a calculation of drug quantity under the guidelines, amounts that were merely negotiated could not be considered. The court concluded that a conspiracy to possess the quantity would allow it to be considered, but noted that a defendant cannot “conspire” with an undercover agent, and hence that defendant’s negotiated quantity could not be considered. While the district court properly excluded the negotiated amount, it committed clear error in assessing defendant’s drug quantity by relying on cryptic notes on a piece of paper seized from a coconspirator. U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993).
5th Circuit finds no double counting of drug quantities. (254) Defendant argued that the drug quantity attributed to her was incorrect because the amount of drugs reported by confidential informants duplicated the amount reported by the head of the distribution scheme. The 5th Circuit found no error. The district court recognized the danger of duplication and subtracted the amount the leader reported from the total. Defendant’s claim that the various confidential informants could have reported the possession of the same drug quantities more than once was merely speculation. U.S. v. Rogers, 1 F.3d 341 (5th Cir. 1993).
5th Circuit affirms estimate of drug purchases six months prior to defendant’s arrest. (254) Defendant was involved in the sale of five ounces of cocaine to an undercover agent. The 5th Circuit affirmed that defendant distributed a minimum of 30 ounces of cocaine in the previous six months, and that this was relevant conduct for sentencing purposes. A co-conspirator testified that she sold cocaine to defendant five or six times a month for six months, in quantities ranging from one to three ounces. A DEA agent testified that this amount was not consistent with personal consumption. Although there was evidence that defendant was indigent, this did not mean that defendant could not be a cocaine distributor. The prior drug purchases qualified as relevant conduct, because they passed the test of similarity, regularity, and temporal proximity. The distribution activities took place within six months of each other, they were of a continuous nature, the quantities involved were similar, and the source and type of the drug were the same. U.S. v. Bethley, 973 F.2d 396 (5th Cir. 1992).
5th Circuit upholds estimate where chemicals and their containers were destroyed. (254) DEA agents who searched defendants’ methamphetamine laboratory destroyed the chemical mixtures and their containers, except for retained samples, but took photographs of the mixtures and their containers before destruction. Although the agents’ initial estimate was that the laboratory contained 4.5 kilograms of the methamphetamine mixture, the 5th Circuit affirmed the determination that the laboratory contained 17.5 kilograms. The original estimate was not based on accurate measurements made at the scene, but was a conservative guess. Before the trial began, a DEA agent obtained and measured the capacity of a standard Coke canister of the kind that had been destroyed. Also, he reworked his estimate of the volume of the cake pan which had been destroyed based on measurements of the pan made at the time of the search. Based upon these calculations, a DEA chemist testified that the methamphetamine mixture totaled 17.5 kilograms. U.S. v. Sherrod, 964 F.2d 1501 (5th Cir. 1992).
5th Circuit affirms reliance on witness who defendant claimed was incredible. (254) Defendant received a pre-guidelines sentence for drug trafficking and a guidelines sentence for witness tampering. The 5th Circuit affirmed the district court’s determination of drug quantity and its reliance on an FBI agent’s testimony about the witness tampering incident. The source of the information about drug quantity was phone calls intercepted with a court-approved wiretap. This contained more than a sufficient indicia of reliability to meet pre-guidelines standards for sentencing. Defendant’s only objection to the FBI agent’s testimony was that it was based on information supplied by the witness, who had not been truthful about another matter. However, credibility determinations are for the district court. U.S. v. Galvan, 949 F.2d 777 (5th Cir. 1991).
6th Circuit upholds conversion of cash into cocaine base. (254) Police searching defendant’s apartment found 3.96 grams of cocaine base. In addition, a canine trained in the detection of narcotics alerted to $11,375 in cash found on defendant’s person. Defendant claimed that the money was proceeds from gambling and selling cars, but had no documentation to prove it. He argued that the district court clearly erred when it converted the entire $11,375 found on him at his arrest into cocaine base. The Sixth Circuit found the argument without merit. First, the district court never found that entire quantity of cash derived from the sale of cocaine base. Rather, the court found that, because defendant would receive the same base offense level should it calculate any amount of cocaine base greater than or equal to 150 grams, it only needed to find that the cash equivalent of 150 grams – or 37 percent of the cash found, roughly $4,700 – was attributable to cocaine base. The Third Circuit held that the district court’s findings were not clearly erroneous. U.S. v. Russell, 595 F.3d 633 (6th Cir. 2010).
6th Circuit says court properly considered cash in defendant’s possession to be drug proceeds. (254) Defendant argued that the district court erred in considering nearly $16,000 found in defendant’s pickup truck at the time of his arrest as the proceeds of crack cocaine sales. He contended that about $11,000 of this was the result of the sale of furniture and audio equipment from his cousin’s nightclub and the remaining $5,000 came from the sale of marijuana. The Sixth Circuit found no error. There was sufficient evidence that the money found came from the sale of crack cocaine. Defendant was observed late at night in a high drug-trafficking area sitting in a pickup truck not registered to him. The cash found in the vehicle was located in close proximity to 45 grams of crack cocaine and was wrapped in bundles of $1,000 each, which was consistent with the manner in which drug dealers maintain their proceeds. A later search of defendant’s apartment found jars and cooking utensils covered with cocaine residue, as well as packaging material and more crack cocaine. In addition, there was no evidence to support defendant’s claim that the cash was from the sale of other items. U.S. v. Gardner, 417 F.3d 541 (6th Cir. 2005).
6th Circuit upholds drug quantity finding based on co-conspirator testimony. (254) Luy testified that over the course of eight to ten months, he traveled to Atlanta once a month and on each trip purchased four pounds of meth, keeping two pounds for himself and giving two pounds to defendant. Occasionally, Luy would make two trips per month instead of one, in which case he would purchase two pounds of methamphetamine on each trip, keeping one pound for himself and giving one pound to defendant. The district court found that defendant could be held liable for over five kilograms of methamphetamine based upon this testimony alone. The Sixth Circuit affirmed, finding the drug quantity determination supported by Luy’s testimony. Testimonial evidence from a co-conspirator may be sufficient to determine the amount of drugs for which a defendant should be held accountable, even where the co-conspirator has reason to believe that he may receive a reduced sentence as a result of his testimony. U.S. v. Henley, 360 F.3d 509 (6th Cir. 2004).
6th Circuit holds that court did not plainly err by relying on undisputed drug quantities in PSR. (254) Defendant argued that his sentence should be vacated because the district court relied on the PSR’s allegedly erroneous statement that he stipulated to the drug amounts contained in the report and never made specific findings regarding drug quantity. The Sixth Circuit held that the district court did not plainly err in relying upon the drug quantities in the PSR when those quantities were undisputed. The presentence investigator was mistaken in concluding that defendant stipulated in the plea agreement to the drug quantity, but that misstatement did not undermine the judge’s conclusion regarding the drug quantity. The plea agreement did not bind defendant to the stated drug quantities. He could have offered evidence that he should be accountable for a smaller amount. However, defendant neither objected to the drug quantities reported in the PSR nor took issue with the court’s determination of drug quantities at the sentencing hearing. U.S. v. Treadway, 328 F.3d 878 (6th Cir. 2003).
6th Circuit finds ample evidence to support drug quantity findings. (254) A government witness testified that defendant sold a couple ounces of cocaine powder each week for a three month period. This amount alone was well over 500 grams. The witness also testified that she obtained four $20 rocks of crack cocaine from defendant any day she could. She also testified that she saw defendant manufacture squares of crack, and break each square into as many as 50 to 100 rocks. About 50 rocks contained the five grams necessary to meet the drug specifications in the indictment. The district court cannot ignore the jury’s findings as to drug quantity unless there is insufficient evidence to support those findings. The Sixth Circuit concluded that there was ample evidence to support the jury’s findings that the drug conspiracy involved at least 500 grams of cocaine powder and five grams of crack cocaine. Accordingly, the court’s sentence based on these quantities was proper. U.S. v. Ricketts, 317 F.3d 540 (6th Cir. 2003).
6th Circuit affirms drug quantity calculation based on empty containers found in residence. (254) Inspectors intercepted a UPS package containing a tub filled with 28 pounds of marijuana. After making a controlled delivery of the package, and arresting defendants, authorities discovered in the basement of the house four tubs that were similar to the one in the UPS package that the undercover officer had just delivered. The Sixth Circuit held that the first defendant was properly held accountable for 140 pounds of marijuana. This defendant accepted a package containing a tub with about 28 pounds of marijuana, and four similar tubs were found in his residence. This alone sufficed to support the court’s finding that he was responsible for 140 pounds (5 tubs times 28 pounds/tub = 140 pounds). A second defendant was properly held accountable for 220 pounds. The testimony of two co-conspirators, as well as that of law enforcement officers concerning drug tabulations found in defendant’s possession, supported a finding that he was responsible for at least an additional 80 pounds. U.S. v. Bartholomew, 310 F.3d 912 (6th Cir. 2002).
6th Circuit upholds estimate of total amount involved in numerous drug shipments. (254) Defendant began supplying cocaine to Laster in November 1996. On the first two occasions, Laster received five kilograms of cocaine. Thereafter, Laster received ten-kilogram shipments of cocaine. One witness testified that he made between ten and 12 trips to transport cocaine from defendant to Laster, and a second witness testified that she made between ten and 20 trips. A conservative count of the cocaine transported by these witnesses was 200 kilograms. In addition, several other witnesses testified as to additional varying quantities that they received from defendant. Based on this testimony, the Sixth Circuit upheld the district court’s factual finding that defendant was responsible for more than 150 kilograms of cocaine. U.S. v. Lopez, 309 F.3d 966 (6th Cir. 2002).
6th Circuit approves extrapolation of unexplained cash deposits into drug quantity calculation. (254) The government attempted to prove the quantity of drugs sold by defendant by extrapolating from unexplained cash deposits made into defendant’s various bank accounts between 1994 and 1999. The Sixth Circuit found no error in the district court’s reliance on this extrapolation to determine drug quantity. First, the government’s evidence supported a finding that the total amount of unexplained cash deposits made into defendant’s accounts over the relevant time period was attributable to drug sales. Defendant worked very little during the relevant time period and did not have sufficient legitimate income to explain the cash deposits. Moreover, defendant’s customers testified that they purchased cocaine from defendant on a regular basis for a number of years, which showed that the defendant was continuously and regularly engaged in cocaine distribution throughout the relevant time period. The district court erred on the side of caution in arriving at its estimate, using only cash deposits and those checks specifically identified by a drug customer as drug payments, thus omitting nearly $100,000 in deposits. Finally, the government presented sufficient evidence at sentencing to establish the conversion ratio (the price per unit of drugs) used by the district court. U.S. v. Keszthelyi, 308 F.3d 557 (6th Cir. 2002).
6th Circuit holds that incorporation of co-defendant’s drug quantity challenge was insufficient to present issue on appeal. (254) Defendants alleged that the district court did not have sufficient evidence to support the drug amounts attributed to them. However, only defendants Woods and Needum specified precisely where witness testimony was suspect; the other defendants attempted to either incorporate their co-defendant’s arguments by reference under Fed. R. App. Proc. 28(i) or aver to calculation errors in broad, summary fashion. Neither of these strategies were sufficient to present the issue on appeal. The calculation of drugs quantities is an individual, fact-specific exercise that requires individual, fact-specific briefings. Because Needum’s and Wood’s co-defendants failed to adequately brief the court, the Sixth Circuit ruled that the co-defendants’ claims were abandoned. U.S. v. Hough, 276 F.3d 884 (6th Cir. 2002).
6th Circuit upholds drug quantity attribution. (254) The Sixth Circuit upheld the attribution of 1211.68 grams of crack to defendant based on the testimony of several witnesses. Dotson attributed 766.16 grams of crack to defendant, derived from the 1/2 ounce (14.16) grams defendant provided to Dotson in 1992, the nine ounces (252 grams) Dotson observed stashed in a sock in defendant’s home in 1993, and the 500 grams that defendant processed at Dotson’s residence on two occasions in 1994. Dotson, as a seller and sometimes user, could easily identify an ounce of crack cocaine, and likely could recognize nine times that amount dumped out of a sock. Although the court was more wary of Dotson’s testimony that he could identify 20 or 40 times that amount on sight, there was sufficient corroborating proof to support the estimate. Clausell attributed 288.08 grams to defendant; 8.08 grams from his own purchases in 1992, and 280 grams that he observed defendant “cook.” Clausell’s drug use did not make the court’s reliance on it clear error. U.S. v. Hough, 276 F.3d 884 (6th Cir. 2002).
6th Circuit holds that court properly relied on witness testimony to make drug quantity attribution. (254) The district court attributed to defendant 700 grams of crack from the testimony of Clausell, and 126 grams of crack from the testimony of Terry. The Sixth Circuit found no error in the drug quantity calculation. Clausell stated that he saw defendant selling crack daily throughout 1992, typically possessing a quarter ounce of crack per day. Nothing during cross-examination undermined Clausell’s credibility. Using a conservative estimate of possessing or distributing a quarter ounce of crack twice a week for a year, the court arrived at the 700 gram figure. Another witness partially corroborated this testimony at trial, stating that he saw defendant with $100 worth of crack on at least two or three occasions. The 126 grams attributed to defendant were based upon Terry’s testimony at trial, subject to cross examination, and not by hearsay evidence relayed from Terry. U.S. v. Hough, 276 F.3d 884 (6th Cir. 2002).
6th Circuit holds that evidence supporting finding that package contained more than 20 grams of cocaine base. (254) Defendant argued that the government’s evidence at trial established that he was only responsible for 19.86 grams of cocaine base, rather than 21.6 grams. The relevant testimony established that once the parcel addressed to defendant’s residence was intercepted by authorities, it was opened pursuant to a search warrant. In a sworn affidavit, a postal inspector stated that the parcel contained a cookie-shaped substance that constituted about 21.6 grams of cocaine base. The inspector further represented under oath that the scale used on site to weigh the substance was reliable and accurate. The postal inspector retained a sample of the cocaine base to repackage in the parcel for the controlled delivery. The inspector also testified at sentencing that three samples were extracted from the cocaine base cookies for the purpose of conducting the field test to determine the substance. As a result, the sample that was sent to the lab, 19.86 grams, was not the full amount of cocaine base that was originally contained in the parcel. The Sixth Circuit affirmed the district court’s finding that defendant was responsible for 21.6 grams of cocaine base. U.S. v. Bender, 265 F.3d 464 (6th Cir. 2001).
6th Circuit upholds reliance on co-conspirator’s drug quantity estimate. (254) Defendant argued that the district court erred in relying exclusively on Owusu’s testimony in holding him accountable for over 150 kilograms of cocaine. The Sixth Circuit found no error. The court considered only Owusu’s testimony because that quantity already exceeded 150 kilograms of cocaine, which corresponded to the highest base offense level in the guidelines. The court found defendant Owusu was a “very credible witness” before relying on his testimony. Owusu testified that he and defendant began in early 1988 by purchasing a quarter of a kilogram of cocaine in New York for distribution in Ohio. They continued purchasing increasingly greater quantities until they were arrested in September 1988. In 1989 they began purchasing cocaine in New York again. The worked up to five to seven kilograms in New York twice a month. In 1991 and 1992, they were buying five to ten kilograms of cocaine twice a month. In 1993 and 1994, defendant received one to three kilograms of cocaine per week. Based on this testimony, 150 kilograms was a conservative estimate. Although defendant contended that this testimony was not credible, testimony from three others provided similar evidence of large cocaine amounts. U.S. v. Owusu, 199 F.3d 329 (6th Cir. 2000).
6th Circuit relies on evidence of drug prices to convert cash to cocaine. (254) Pearce testified that defendant sold 1/16 ounce quantities to Pearce for $100 regularly for many years. The district court found that if defendant sold 1/16 of an ounce for $100, he could sell a kilogram for $56,497. Therefore, the court converted $671,300 seized from a safe and $2,528 seized from defendant into 11.93 kilograms of cocaine. The Sixth Circuit affirmed. Although defendant claimed that this “rigid, formulaic extrapolation” was “too speculative,” he did not suggest an alternative method. Defendant did not explain why the court’s reliance on Pearce’s testimony regarding defendant’s specific drug dealing practices and prices was erroneous. Although defendant suggested that the district court failed to determine that the cash was related to defendant’s drug trade, there was substantial evidence linking defendant’s drug activities to the money found in his safe and on his person. U.S. v. Layne, 192 F.3d 556 (6th Cir. 1999).
6th Circuit directs court to evaluate drug quantity evidence more closely. (254) Defendant claimed that Dotson, whose testimony was accepted by the probation officer to attribute 1269 grams of crack to defendant, was unreliable. The officer did not personally meet with Dotson, but relayed information from his supervisor who did meet with Dotson. Defendant pointed out that Dotson was not always truthful during his testimony (saying he did not use drugs during probation but then remembering that he did), that he could not calculate weight of drugs by looking at them, and was not sure how much a kilogram is. Since the case was being remanded anyway, the Sixth Circuit directed the district court to evaluate the government’s evidence more closely to ensure that drug quantities allocated to defendant could be proved by a preponderance of the evidence. U.S. v. Gibbs, 182 F.3d 408 (6th Cir. 1999).
6th Circuit rejects attribution of three drug quantities. (254) Defendant was a member of a large marijuana distribution conspiracy spanning three states and involving two families. The Sixth Circuit rejected the district court’s decision to hold defendant accountable for three separate drug quantities. The district court attributed a 60-pound shipment of marijuana to defendant simply because another conspirator thought defendant was the one “running the show” at the time the marijuana was distributed. This statement was the “essence of speculation.” The court also attributed drugs to defendant based on $25,000 stored at defendant’s residence. However, there was no evidence that the $25,000 was used to buy additional marijuana, as opposed to being payment for a debt already incurred. Finally, the court attributed 30 pounds of marijuana to defendant that a courier carried from Texas to Chicago. The courier testified at trial that he overheard his brother talking on the phone saying that the marijuana was for defendant. However, there was no evidence that the 30 pounds ever reached defendant. U.S. v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).
6th Circuit multiplies quantity sold per day by number of days in conspiracy. (254) The district court focused on the amount of cocaine transported from Florida to Tennessee during the time each defendant participated in the conspiracy, and on the amount of cocaine distributed at a particular housing project during the relevant time period. The court analyzed the time that each defendant participated in the conspiracy and the role they played, and made specific findings as to the amount of cocaine foreseeable to each defendant. These amounts were unique to each defendant. A court may estimate a quantity of drugs for sentencing purposes based on the testimony of the average amount of drugs distributed per day multiplied by the number of days in which the defendant participated in the conspiracy if these figures are reliable, and the average amount sold per day was reasonably foreseeable. U.S. v. Elder, 90 F.3d 1110 (6th Cir. 1996).
6th Circuit estimates drug quantity from amount of money possessed. (254) On two occasions, defendant sold crack cocaine to an undercover agent. Police searching his car found $6300 in cash and a prescription pill bottle that contained cocaine residue. The Sixth Circuit upheld the court’s finding that defendant purchased and sold at least 35 grams of cocaine base. The court was not required to credit defendant’s statement that he only sold 14 grams. The statement was not given under oath, and his incentive to minimize his involvement in drug related activities was quite high. The district court properly calculated the amount of drugs that could be purchased with $6300 using the average price per gram of cocaine base from the sales to the agent. The fact that no drugs were found in defendant’s possession was irrelevant. The purpose of § 2D1.1 is to hold the defendant responsible for drugs even when there is no drug seizure. Since in defendant had not been employed in almost a year and a half, it was not clearly erroneous for the court to conclude that the $6300 represented proceeds of drug‑related activities. U.S. v. Berry, 90 F.3d 148 (6th Cir. 1996).
6th Circuit considers drugs from tally sheet. (254) Defendant was convicted of possessing crack cocaine with intent to distribute. The court considered at sentencing a drug tally sheet identified by an associate as written in the handwriting of another conspirator. The tally sheet stated that defendant owed this conspirator a debt of $1000. The district court relied on testimony and evidence at trial that $1000 would purchase 28 grams of crack, and inferred that the $1000 was an amount that had been purchased by defendant from this conspirator. Defendant argued that the accomplice did not see the conspirator writing on the tally sheet nor did she have first hand knowledge that defendant owed the conspirator $1000. The Sixth Circuit found that the district court reasonably inferred that defendant owed $1000 to the conspirator for 28 grams of crack. U.S. v. Bingham, 81 F.3d 617 (6th Cir. 1996).
6th Circuit estimates drug quantity by multiplying amount seized by number of trips. (254) Police arrested a courier transporting 387 pounds of marijuana hidden in a camper. The courier testified that this was the 19th such trip she had made for defendant. The district court multiplied the number of pounds seized (387) by the total number of trips (18), estimating that defendant was responsible for 3,166 kilograms. The court disregarded one trip due to evidence that no marijuana was transported on that trip. The Sixth Circuit upheld the estimate. The courier testified about the 19 trips, using her credit card receipts to verify each trip. While there was no direct proof of the precise quantity of marijuana transported during each trip, there was a great deal of circumstantial evidence that the jury accepted in convicting defendant on all marijuana counts. The vehicles had compartments that could conceal between 400 and 600 pounds of marijuana. U.S. v. Oleson, 44 F.3d 381 (6th Cir. 1995), overruled on other grounds by U.S. v. Reed, 77 F.3d 139 (6th Cir. 1996).
6th Circuit requires findings on intent and ability to produce negotiated drugs. (254) Defendant challenged the propriety of considering amounts of cocaine that were negotiated but never delivered. The 6th Circuit remanded, because the district court failed to make findings. Where a district court fails to articulate its reasons for believing that a defendant both intended and had the ability to produce the negotiated amounts, a remand is required. U.S. v. Ferguson, 23 F.3d 135 (6th Cir. 1994).
6th Circuit remands for further findings regarding drug quantity. (254) At sentencing, defendants’ counsel noted that the testimony linked defendants, at most, to the distribution of 49 kilograms of cocaine. The government, however, contended that the testimony regarding the travel of other conspirators to Miami, coupled with a pattern of kilogram quantity sales of cocaine, supported an inference that they distributed at least one additional kilogram. The district court, without making any factual findings sentenced defendants according to the 50-kilogram figure, which increased defendants’ base offense level by two. The 6th Circuit remanded for further findings. The court failed to identify the evidence on which it relied to find both defendants responsible for the increased amount. In doing so, the court failed to err on the side of caution. Particularly where the quantity increases the offense level, a sentencing court may not sentence a defendant based on conjecture. U.S. v. Baro, 15 F.3d 563 (6th Cir. 1994).
6th Circuit finds conversion of cash into marijuana was not supported by the evidence. (254) The 6th Circuit held that the amount of drugs involved, as determined by converting cash into drugs, was not established by a preponderance of the evidence. The district court’s computations used $300 per pound for $30,000 involved, and $320 per pound for $8,000 involved. However, these conversions were in conflict with testimony at trial concerning the price per pound for marijuana. Uncontradicted testimony established that marijuana cost either $1500 or $2000 per pound. U.S. v. Samour, 9 F.3d 531 (6th Cir. 1993), overruled on other grounds by U.S. v. Reed, 77 F.3d 139 (6th Cir. 1996).
6th Circuit upholds conservative estimate based on drug runner’s testimony of deliveries he made. (254) The 6th Circuit upheld the district court’s “conservative” estimate of the quantity of cocaine and Dilaudid tablets distributed by defendant over a five month period, based on the testimony of one of defendant’s runners. The court found that the runner delivered drugs only once a day, five days a week, despite the runner’s testimony that he made deliveries up to five times a day. The court also conservatively estimated each delivery to contain only one Dilaudid tablet and one bag of cocaine, even though the runner testified that his average delivery was one or two Dilaudid pills and two or three packets of cocaine. Moreover, the court ignored all deliveries by two other couriers working for defendant, and estimated that each Dilaudid pill weighed only .05 grams, while the toxicology report showed the pills purchased from defendant actually weighed between .075 and .09 grams each. U.S. v. Clemons, 999 F.2d 154 (6th Cir. 1993).
6th Circuit remands to reexamine method of converting cash into drugs. (254) Defendant was held accountable for crack cocaine seized by the government. Based on the probation officer’s estimation that the “street value” of crack in the area was $1,000 per ounce, the court converted $4,592 seized into 4.5 ounces of crack, and included this quantity in defendant’s base offense level. The 6th Circuit remanded for the court to reexamine the method used for converting the cash into drugs. Application note 2 to section 2D1.4 authorizes the conversion of seized currency into its equivalent in drugs, but the conversion ratio must be supported by a preponderance of the evidence. The record did not indicate how the court determined the drug unit value. The court rejected the concurrence’s suggestion that the district court could determine the value of cocaine through “consideration of its docket.” To sentence a defendant based on facts established at someone else’s trial would violate due process. U.S. v. Jackson, 990 F.2d 251 (6th Cir. 1993).
6th Circuit affirms use of lowest base offense where judge could not estimate quantity of drugs. (254) A jury convicted defendant of conspiring to distribute cocaine. After a second sentencing hearing, the district judge concluded that there was insufficient evidence presented to fairly estimate the specific quantity of cocaine attributable to defendant. Accordingly, the district court applied the lowest base offense level applicable to cocaine under the drug quantity table, a level 12. The 6th Circuit affirmed. The court was following the mandate in U.S. v. Walton, 908 F.2d 1289 (6th Cir. 1990) to err on the side of caution in estimating drug quantity. The district court’s finding was “not only wise, it clearly did not offend any of [defendant’s] rights.” The government did not cross-appeal the district court’s determination, and the determination was clearly reasonable in light of all of the facts before the district court. U.S. v. Davis, 981 F.2d 906 (6th Cir. 1992).
6th Circuit upholds determination of drug quantity based upon unreported income. (254) The district court estimated that defendant sold a minimum of 7.409 kilograms of cocaine based on evidence that during the course of the conspiracy, she had $217,829 in unreported income. Based on witness testimony, the court determined that defendant sold the cocaine for an average price per ounce of $1400, meaning that each kilogram of cocaine produced $50,400 in gross profit. The court determined that defendant paid an average price of $21,000 per kilogram, which left a net profit per kilograms of $29,400. By dividing the net profit per kilogram into defendant’s unreported income (217,829 divided by 29,400), the court determined that defendant sold 7.409 kilograms of cocaine. The 6th Circuit affirmed this calculation as not clearly erroneous. Defendant’s claim that it was improper to assume the unreported income was from drug sales was rejected. Numerous other challenges by other defendants to the estimation of drug quantity were also summarily rejected. U.S. v. Warner, 971 F.2d 1189 (6th Cir. 1992).
6th Circuit upholds approximation of cocaine quantity based upon cooperating co-conspirator’s testimony. (254) The district court included in the calculation of defendant’s base offense level 30 to 40 kilograms which a co-conspirator testified he had purchased from defendant during the previous years. Defendant contended that it was improper to punish him for the additional kilogram amounts based solely on the testimony of a co-conspirator, particularly one who had traded testimony to the government in exchange for a plea agreement. The 6th Circuit found no error in the district court’s reliance upon such testimony. The testimony was corroborated by the records found in another conspirator’s purse, which noted collection of payments of $330,000. U.S. v. Straughter, 950 F.2d 1223 (6th Cir. 1991).
6th Circuit affirms defendant’s involvement with 15 kilograms of cocaine. (254) Defendant argued that the government failed to prove his responsibility for the 15 kilograms of cocaine which were attributed to him at sentencing. The 6th Circuit found sufficient evidence to support the determination. One witness testified that defendant transported four kilograms of cocaine from a deal she arranged. Another witness testified about defendant’s involvement in approximately 12 transactions, each involving quantities of cocaine ranging from four to eight kilograms. Yet another witness testified that he sent defendant on three to four trips to transport cocaine and that on these trips the average amount of cocaine carried was six kilograms. U.S. v. West, 948 F.2d 1042 (6th Cir. 1991).
6th Circuit upholds sentencing for more than one kilogram of cocaine based on testimonial evidence. (254) Defendants argued that the district court’s findings that 5 to 14.9 kilograms of cocaine were involved in their drug conspiracy was erroneous because only one kilogram was introduced into evidence at trial. The 6th Circuit upheld the district court’s finding. A co-conspirator testified that he transported more than seven kilograms of cocaine at the request of one of the defendants. The fact that the evidence was testimonial and not physical was irrelevant. U.S. v. Sanchez, 928 F.2d 450 (6th Cir. 1991).
6th Circuit holds judge may disregard jury’s determination of drug quantity. (254) Although the jury found defendant guilty of conspiring to distribute less than 500 grams of cocaine, the sentencing judge determined that defendant was involved with between 500 grams and two kilograms of cocaine. The 6th Circuit upheld the judge’s actions, finding that the judge was not bound by the jury’s verdict. There was sufficient evidence to support the judge’s determination. A witness testified as to defendant’s numerous cocaine dealings. Because the judge had expressly found this witness to be credible, the determination was not clearly erroneous. U.S. v. Nelson, 922 F.2d 311 (6th Cir. 1990).
6th Circuit counsels caution when determining drug quantities. (254) The evidence at trial established that defendants had distributed only approximately 25 grams of cocaine. However, the district court found that they were responsible for 455 grams based upon evidence that they were dealing at least 1/8 of an ounce (3.5 grams) of cocaine per week and that it was “safe to assume” that they continued to deal cocaine every week for two and one-half years. The 6th Circuit stated that if the exact amount cannot be determined, an estimate can suffice, but a preponderance of the evidence must support the estimate. Thus when choosing between a number of plausible estimates of drug quantity, “a court must err on the side of caution.” Here, the court found no circumstantial evidence to support the finding of continuous distribution. Furthermore, the defendants’ only asset was a 1975 automobile. They paid $250 in rent, received welfare, and acknowledged that they had a cocaine habit. The court found that if they were regularly dealing in drugs for two years, one would expect to find some evidence of additional income. The case was remanded for resentencing. U.S. v. Walton, 908 F.2d 1289 (6th Cir. 1990).
7th Circuit upholds drug quantity estimate supported by testimony of four separate witnesses. (254) Defendants argued that their sentences were based on exaggerated drug quantities. Following a two-day sentencing hearing, the judge found that defendant Bowman was responsible for more than 4.5 kilograms of crack and that defendant Cole was responsible for just over two kilograms. Defendants argued that these quantities were based entirely on the testimony of unreliable government witnesses who were to receive lower sentences in exchange for testimony favorable to the government. The Seventh Circuit found no error. The district court’s conclusions were conservative and supported by “a consistent narrative delivered by four separate witnesses who had detailed knowledge of the defendants’ activities.” The district court was entitled to credit that testimony. U.S. v. Etchin, 614 F.3d 726 (7th Cir. 2010).
7th Circuit orders limited remand based on error in converting pounds to kilograms. (254) When converting the cash found at defendant’s house to marijuana, defendant’s PSR treated one pound as equivalent to 2.2 kilograms, which was backwards: one kilogram is 2.2 pounds. The error, which no one noticed, increased defendant’s relevant conduct from 370 kilograms of marijuana to 490, and his offense level from 23 to 25. The PSR calculated a guideline range of 70-87 months; the correct range was 57-71 months. Defendant received a 70-month sentence, which fell within both ranges. The Seventh Circuit ordered a limited remand so that the judge could explain whether the error in converting pounds to kilograms affected its exercise of discretion in sentencing. If it did, then the court will remand for a full sentencing; if it did not, the panel will affirm defendant’s sentence. U.S. v. Billian, 600 F.3d 791 (7th Cir. 2010).
7th Circuit upholds drug quantity finding based on judge’s finding that detective was credible. (254) Defendant pled guilty to two marijuana offenses and to possessing a firearm in connection with those crimes. He challenged his 70-month sentence for the drug offenses, arguing that the judge should have only held him accountable for the 13 kilograms of marijuana found at his home. The judge calculated defendant’s relevant conduct at 490 kilograms of marijuana after converting to a marijuana equivalent the $40,000 in cash seized in the house and estimating the extent of defendant’s drug distribution business. Defendant contended that the record did not show that he had any such business. However, the judge’s finding was based on a detective’s testimony at an evidentiary hearing that defendant had confessed to conducting a substantial marijuana-distribution operation. Defendant testified at the hearing that he never said any such thing to the detective,. The judge believed the detective rather than defendant. A challenge to such a finding “has no prospect of success on appeal.” U.S. v. Billian, 600 F.3d 791 (7th Cir. 2010).
7th Circuit finds sufficient evidence to support finding as to entry into drug conspiracy. (254) In pleading guilty to participating in a drug-trafficking conspiracy, defendant admitted selling heroin in August 2005. At sentencing, the district court found that the conspiracy in which defendant participated sold heroin from 2002 to 2005 and that defendant sold heroin for the conspiracy beginning in January 2005. The court found that defendant remained in the conspiracy even though he was incarcerated from late January 2005 to July 2005. In support of these findings, the district court relied on testimony at the trials of defendant’s co-conspirators that defendant sold heroin in January 2005 and information in defendant’s presentence report that defendant had been arrested at a house from which the conspiracy sold heroin in January 2005. The court used its findings as to the dates of defendant’s participation in the conspiracy to determine the drug quantities attributable to him. The Seventh Circuit held that the district court relied on adequate evidence to support its finding that defendant participated in the conspiracy beginning in January 2005. U.S. v. Turner, 604 F.3d 381 (7th Cir. 2010).
7th Circuit upholds extrapolating additional quantities sold from drug house. (254) Defendant pled guilty to conspiring to possess with intent to distribute heroin and crack. The district court found that defendant, who led the conspiracy, was responsible for between 10 and 30 kilograms of heroin. Defendant argued that the evidence was only enough to approximate drug quantity for the short period of time in 2005 when the conspirators were under surveillance, and that the court erred when it used that quantity to estimate the amounts he sold as far back as 2002. The Seventh Circuit found sufficient evidence in the record to support the estimate. One gang member testified to the operation of the conspiracy before 2005. Evidence recovered from the trash at the gang’s house showed that the gang operated several drug houses, several members of the gang were arrested between 2002 and 2005 on drug charges, and several buyers testified that they bought heroin from the gang in that time period. The court’s estimate of the amount of crack sold during the conspiracy was conservative. U.S. v. Easter, 553 F.3d 519 (7th Cir. 2009).
7th Circuit holds defendant accountable for drugs in untested vial. (254) Police searching defendant’s house found a plastic jug under a bathroom vanity, and transferred the contents to two vials. One vial was tested and found to contain 23.9 grams of methamphetamine. The other vial contained 20.4 grams but was not tested. The Seventh Circuit held that the district court properly included in its drug quantity calculation the 20.4 grams from the untested vial. Both vials were filled at the same time from the same source and the other vial tested positive for methamphetamine. A police inspector testified that he personally witnessed the contents of the plastic jug being emptied into the two vials, that both vials were then sealed, and that each was marked with a sticker each time it was transferred to a new location to maintain a chain of custody. The district court also properly included additional amounts of methamphetamine to its calculation based on the testimony of two admitted methamphetamine users who were not prosecuted for their role in defendant’s drug enterprise. Determinations of witness credibility are entitled to great deference. U.S. v. White, 360 F.3d 718 (7th Cir. 2004).
7th Circuit relies on estimate of amount of meth defendant sold during conspiracy. (254) The district court counted as relevant conduct 1,134 grams of methamphetamine based on the trial testimony of two witnesses and a statement given to police by defendant’s girlfriend. The court estimated that defendant was responsible for selling about one ounce of meth per month during each month of the conspiracy. Defendant argued that the calculation was clearly erroneous because “no witness testified that he [sold drugs] for every single month during the conspiracy.” The Seventh Circuit found no error. The 1,134 figure was an estimate of the amount of meth defendant sold. District judges calculating drug quantities “are not required to act like agents of the Bureau of Weights and Measures.” Estimates are permissible, so long as they represent reasonable assumptions based on reasonably accurate information. The district court made a reasonable assumption regarding the amount of meth defendant sold based on the evidence in the record. U.S. v. Crowley, 285 F.3d 553 (7th Cir. 2002), superseded on other grounds by guideline as stated in U.S. v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir. 2004).
7th Circuit upholds use of larger estimate despite witness’s memory lapses. (254) Defendant challenged the district court’s decision to attribute 100 ounces of cocaine to him based on Spaeth’s testimony. In a police interview, Spaeth estimated that the drug quantity was 50 ounces, but under oath at sentencing, Spaeth estimated that the quantity was 100 ounces. Given the district court’s cursory review and Spaeth’s poor memory, the Seventh Circuit found the issue close, but nonetheless affirmed the use of the 100-gram estimate. Spaeth explained that the first estimate was in a discussion with officers, but “[w]hen it came time to have it written down legally, I realized it was more.” Further, Spaeth provided the court with particulars that bolstered the 100-ounce estimate. Since the burden at sentencing is merely a preponderance of the evidence, and the experienced judge was aware of Spaeth’s memory lapses, there was no error. The panel also upheld the court’s reliance on Jobe’s testimony that defendant possessed 65 ounces of cocaine. Jobe’s testimony was partly based on firsthand knowledge. He accompanied defendant to strip clubs for the purpose of selling cocaine, and on each occasion, he watched defendant sell between 1/2 to 1 ounce of cocaine. Jobe also testified that defendant admitted to selling cocaine at the strip clubs five nights a week for over a year. Although Jobe was a convicted felon and an admitted drug user, the district court was entitled to credit testimony from people with Jobe’s “credentials.” U.S. v. Noble, 246 F.3d 946 (7th Cir. 2001).
7th Circuit holds that defendant waived challenge to calculation of relevant drug conduct. (254) Defendant’s first PSR held him accountable for between 3.5 and 5 kilograms of cocaine. Defendant objected, contending that he was only responsible for between 2 and 3.5 kilograms because the PSR made various errors, including failing to give proper “credit” for the amount of cocaine he personally used. The probation officer revised the calculation in an addendum, finding defendant responsible for 3.1 kilograms, a figure within the 2 to 3.5 kilogram range. Defendant did not object to the PSR addendum either before or at sentencing. On appeal, he argued that the district court improperly calculated the amount he personally consumed, and that he was only responsible between .5 and 2.0 kilograms. The Seventh Circuit held that defendant waived appellate review of the calculation of his relevant conduct. Waiver, as opposed to forfeiture, “occurs when a defendant intentionally relinquishes a known right.” Defendant intentionally relinquished his right to appeal the guidelines calculations when both he and his counsel affirmatively stated that they had no further objections to the revised drug quantity in the addendum. More importantly, defendant initially objected to the drug quantity credited to personal use, but when the personal use quantity was not changed in the PSR addendum, he failed to object further. Finally, his objection to the PSR specifically claimed that he was responsible for between 2 and 3.5 kilograms. U.S. v. Scanga, 225 F.3d 780 (7th Cir. 2000).
7th Circuit upholds calculation of drugs defendant provided to witness. (254) At trial, Bowers testified that he received $500 worth of crack (made up of 25 $20 crack rocks) twice a week from defendant. The PSR said that within the conspiracy, a $20 rock weighed about 0.2 grams. The district court concluded that Bowers received five grams of crack two or three times a week, which over a two-year period amounted to 1040 grams. The court also added an additional kilogram for a brick of crack that Bowers said he received from defendant, for a total of 2040 grams. The Seventh Circuit upheld the drug quantity estimate. Estimates of drug quantity are acceptable if they are based on evidence possessing a sufficient indicia of reliability and not nebulous eyeballing. The court’s calculation accurately reflected the evidence presented at trial. Bowers’ testimony as to the weight of the brick of crack was sufficiently reliable. Bowers’ description of the crack as a “brick like package” was consistent with having been told by defendant that the package contained one kilogram of crack. U.S. v. Durham, 211 F.3d 437 (7th Cir. 2000).
7th Circuit rules that court made independent determination of drug quantity. (254) Defendant complained that in attributing 15-50 kilograms of cocaine to him, the district court adopted the PSR’s drug quantity calculation, which was just a wholesale adoption of the government’s position. However, the Seventh Circuit found that the district judge based his calculations on the evidence in the record and did not simply state the government’s calculations set forth in the PSR without scrutinizing them. The judge noted that he had reviewed the transcripts, and although there were some inconsistencies in the testimony, he found two witnesses were truthful about drug quantity. The judge also determined that the government’s calculations were quite conservative. Thus, the court based its adoption of the government’s figures on an independent review of the record. Moreover, the probation officer’s substantial reliance on the government’s position did not mean that the information on which it relied or the calculations it performed were inaccurate; it simply meant that the probation department also believed that there was a sufficient basis for these calculations. U.S. v. Johnson, 200 F.3d 529 (7th Cir. 2000).
7th Circuit upholds estimate where witness made hundreds of crack purchases from defendants. (254) Jones testified that he had bought crack “literally hundreds” of times from defendants at various locations throughout Alton, Illinois, and that he also had bought crack hundreds of times from defendants at their home in Alton. Jones said that each time he bought crack from them, he paid no less than $5-$10 and no more than $80-$100. Witness testimony established that, on average, $10 would buy .065 grams of crack in Alton. The judge found that Jones had purchased crack from defendants at least 210 times and calculated that Jones had bought at least 15 grams of crack. If Jones had spent only $11 each time he bought crack, which was a conservative figure, then he would have purchased no less than 15 grams of crack. Accordingly, the Seventh Circuit affirmed the sentencing court’s calculations. A court may take witness estimates of the amount of drugs they purchased and multiply that by the minimum quantity sold on each occasion. A court may also extrapolate drug quantities from the amount of money used to purchase the drugs. U.S. v. Pigee, 197 F.3d 879 (7th Cir. 1999).
7th Circuit upholds drug quantity finding based on defense counsel’s admission at sentencing. (254) The sentencing judge held defendant responsible for 1.3 kilograms of crack based on defense counsel’s admission at sentencing that defendant was responsible for this quantity. Defendant was present at the sentencing hearing and did not object to this statement by his counsel. Defense counsel’s admission was founded in part on defendant’s own admission that he sold 400 grams of crack; the remainder stemmed from defendant’s knowledge that his co-conspirators converted much of the cocaine they purchased from him into crack. Joiner stated that he cooked two ounces of powder into crack for defendant every two weeks for about two years, which independently accounted for as much as 2.21 kilograms. The Seventh Circuit found that this provided a sufficient basis for attributing 1.3 kilograms of crack to defendant. The court further ruled that the government did not violate the plea agreement by informing the sentencing judge that defendant trafficked in crack rather than powder cocaine. The agreement did not contain such a restriction and it would have been beyond the government’s power to make such a promise, since a prosecutor has an obligation to inform the court of all relevant conduct. U.S. v. Joiner, 183 F.3d 635 (7th Cir. 1999).
7th Circuit holds that court’s drug calculation lacked adequate basis. (254) The district court’s drug quantity calculation was based primarily on defendant’s drug transactions with Seeman and Hudy. The judge noted that discrepancies existed between the trial testimony and initial statements the men made to police. When a court relies upon one of two contradictory statements offered by a witness, “it should directly address the contradiction and explain why it credits one statement rather than the other.” The Seventh Circuit ruled that in absence of an explanation or other evidence justifying the court’s choice of one account over the other, the judge’s calculation lacked an adequate evidentiary basis. The court concluded that Seeman purchased crack from defendant “ten times at 3 to 3.5 grams a piece or 35 grams.” This conclusion was not supported by the evidence. Seeman testified that he bought at least 3.5 grams of crack a week, not each time. U.S. v. Span, 170 F.3d 798 (7th Cir. 1999).
7th Circuit rejects hearsay responsible for 97% of defendant’s relevant conduct. (254) The district court found that 32.9 grams of crack were involved in the offense of conviction. The court attributed an additional 110 grams of crack to defendant based on statements made by two witnesses. Finally, the court held defendant accountable for 5,103 grams of crack based on hearsay statements made by one of defendant’s underlings. The Seventh Circuit ruled that the hearsay had insufficient indicia of reliability to support its use. Although a judge need not hear personally from witnesses at sentencing, it is a good idea to do so when the witness is going to provide the basis for 97 percent of a defendant’s relevant conduct. According to the PSR, the witness said defendant was selling 1/16th ounce quantities of crack for $100 and 1/8th quantities of crack for $250 or $275. This statement made no sense, since defendant’s drug customers would not pay more per unit as the quantity increased. This error colored the Seventh Circuit’s view of the witness’s other statements. The probation officer relied on these statements to estimate that defendant was distributing three ounces (85.05 grams) of crack a day for 60 days. This resulted in the 5,103 gram finding. This was “an astonishing amount” considering that the three counts of conviction only involved 32.9 grams. U.S. v. Robinson, 164 F.3d 1068 (7th Cir. 1999).
7th Circuit remands for adequate reasons for disputed drug quantity estimate. (254) Defendant was a member of a large methamphetamine conspiracy. In a proffer, a co-conspirator stated that he had personally supplied defendant with 50 pounds of meth. He then testified at a co-defendant’s trial that he supplied 80-100 pounds. Next, the co-conspirator signed an affidavit saying he had no accurate estimate of how much meth he supplied to defendant. However, at defendant’s sentencing hearing, he said defendant had asked him to say that the 80-100 pound estimate was incorrect. He then testified that the 80-100 pound estimate was low. The district court attributed 80 pounds of meth to defendant. The Seventh Circuit remanded because the district court did not adequately explain why the 80-100 pound estimate was credited over the other varying statements. It was unclear whether the district court conducted a sufficiently searching inquiry into the contradictory evidence. The co-conspirator’s testimony was uncorroborated and the district court did not provide a rationale for believing one set of contradictory statements over another. U.S. v. McEntire, 153 F.3d 424 (7th Cir. 1998).
7th Circuit says drug quantity testimony not impossible because merely an approximation. (254) Defendant argued that a witness’s testimony used to hold him accountable for 80 pounds of methamphetamine was incredible as a matter of law because it was “physically impossible.” The witness testified that he did several deals, about every two weeks, from the time defendant was released from the state penitentiary in May 11, 1992, until July 4, 1992. Defendant sought to enumerate these deals and totaled seven. Defendant argued that it would be physically impossible to do seven deals, each two weeks apart, from May 11th to July 14th. The Seventh Circuit found no error in using the witness’s approximations. Although the witness testified that the deals were every two weeks, he also stated that they were sometimes twice a week. The testimony was not sufficiently detailed to indicate seven drug deals occurred exactly two weeks apart from May 11th to July 14th. Therefore, the testimony was not incredible as a matter of law. U.S. v. McEntire, 153 F.3d 424 (7th Cir. 1998).
7th Circuit holds defendant accountable for all drugs even though he only received 1/3 of total. (254) The district court attributed 11.09 kilograms of methamphetamine to defendant based on the estimates of witnesses. The Seventh Circuit found no error in the court’s reliance on drug quantity estimates. The court relied on evidence of transactions only in which defendant was personally involved. Also, because a conspirator is accountable for transactions that he could reasonably foresee, the court did not err in crediting the total amount of meth involved in transactions even though defendant received only one third of the total. Defendant knew of the three-way split. U.S. v. McEntire, 153 F.3d 424 (7th Cir. 1998).
7th Circuit upholds estimate based on second-hand information. (254) Defendant obtained drugs from Arizona for resale in southern Illinois. Two co-conspirators gave detailed statements estimating how much of each drug defendant dealt. However, the estimates were based on second-hand information. The district court used the statements to estimate that defendant had made 16 trips to Arizona, bringing back 3 pounds of marijuana and one ounce of methamphetamine each time. The Seventh Circuit found that the court properly relied on the co-conspirators’ statements to estimate drug quantity. The district court found the hearsay was reliable by finding the witnesses credible and their testimony corroborated by other evidence. One witness said defendant traveled to Arizona every month or two for 2 1/2 years, making 16 to 32 trips. The other witness said defendant dealt 5200 dosage units of LSD. At sentencing, the witness admitted that an estimate of 1700-5200 dosage units was reasonable. Any error in using the higher number was harmless, because it would not change defendant’s offense level. U.S. v. Burke, 148 F.3d 832 (7th Cir. 1998).
7th Circuit upholds reliance on police officer’s estimated conversion ratios. (254) A jury convicted defendant of crack and powder cocaine charges. He challenged the district court’s reliance on the testimony of a police lieutenant, who offered an opinion on the conversion ratios of powder cocaine to crack. The Seventh Circuit found no error. The lieutenant had extensive experience investigating crack cocaine cases and had interviewed countless people on the means and procedures for manufacturing crack. The officer testified that the expected weight loss in the conversion process was about 10-15%, varying with the skill of each cook, but that no one would continue to use a cook who lost as much as 30% of the original weight of the powder cocaine. Based on a chemist’s testimony that the powder cocaine seized from defendant’s jacket was 78% pure, the court deducted 22% of the gross powder weight for impurities. In consideration of the police officer’s “worst case scenario,” the court then deducted another 30% for a total reduction of 52%. This 52% loss ratio, which was far more than ratios approved in other cases, resulted in a figure of 157 grams of crack, far short of the 228 grams recommended by defendant’s PSR. The court’s conservative calculation was not erroneous. U.S. v. Hunter, 145 F.3d 946 (7th Cir. 1998).
7th Circuit upholds use of drug addict’s estimate of drug quantity. (254) Defendant was a leader of a cocaine trafficking conspiracy. The district court held him accountable for between 3.5 and 5 kilograms of cocaine based on the testimony and statements of a conspiracy employee who provided detailed information after his arrest about the structure of the organization. Defendant argued that the conspirator was unreliable because he was an admitted drug addict. The Seventh Circuit upheld the addict’s drug quantity estimate. The sentencing court found the drug addict to be credible, noting that it was corroborated by a cooperating witness. There was nothing to indicate that the court did not assess the addict’s reliability adequately. U.S. v. McClinton, 135 F.3d 1178 (7th Cir. 1998).
7th Circuit relies on drug quantity in prisoner’s unsworn statement to federal agent. (254) Defendant was convicted of drug charges. The PSR, upon which the district court relied, concluded that defendant was responsible for 649 grams of crack. Of this amount, 646 grams was based on federal agent’s interview of a prisoner. The inmate told the agent that he purchased “sixteenths” of crack from defendant on a daily basis for about one year. The Seventh Circuit upheld the district court’s reliance on the unsworn statement of the prison inmate. Although defendant argued that the prisoner’s statements were not reliable, he did not ask to put the prisoner on the witness stand. The federal agent testified that, based on her understanding of local drug activity, she believed the inmate’s statements were reliable. In addition, others indicated that defendant was a substantial crack dealer. In a 1993 statement, a witness reported that he purchased cocaine about 200 times from defendant, for a total of 1400 grams. This alone was more than sufficient to put defendant over the 500-gram minimum. U.S. v. Berry, 133 F.3d 1020 (7th Cir. 1998).
7th Circuit upholds estimate based on average purity of drugs purchased in controlled buys. (254) Defendant ran a drug operation that sold vast quantities of heroin. The district court estimated that the conspiracy involved 75.4 kilograms of heroin based upon recorded conversations among the co-conspirators, their bookkeeping records, and informant testimony, as well as the average purities and weights of the heroin purchased by the government’s informant over a six-month period. The Seventh Circuit affirmed the drug quantity estimate. The percentages and quantities were not pulled out of thin air. The purity multipliers were based on heroin actually purchased from defendant and the amount of heroin purchased by the conspiracy was revealed by the conspirators themselves in recorded telephone conversations. The prices per unit were based on a series of actual sales to an undercover agent over a five-month period. Moreover, the calculations were generous to defendant. U.S. v. Jarrett, 133 F.3d 519 (7th Cir. 1998).
7th Circuit upholds estimate based on court’s use of most conservative numbers given by witness (254) The district court held defendants accountable for more than 1.5 kilograms of crack. On appeal they contended that the court’s calculation was based in large part of the testimony of untrustworthy witnesses who were motivated to lie in exchange for lighter sentences. The Seventh Circuit affirmed the drug quantity determination. The court found credible a witness who testified that in 1994, he bought crack 50 times from a co-conspirator, usually in quantities of 1/10 of a gram. The court also credited the witness’s testimony that this co-conspirator had 100 to 150 daily customers at his residence, and that defendants supplied this co-conspirator. The court recounted other supporting testimony and then concluded that the co-conspirator’s estimate was conservative. The court estimated that the co-conspirator had 100 daily customers who bought 1/10 of a gram. The court only counted 300 days of the year, which resulted in a figure of 3 kilograms, nearly twice the 1.5 kilograms that must be shown for the maximum offense level. Given the conservative nature of the other figures, the fact that the witness stated he only worked for the co-conspirator for seven or eight months (210 to 240 days) rather than 300 days, did not invalidate the estimate. U.S. v. Singleton, 125 F.3d 1097 (7th Cir. 1997).
7th Circuit relies on defendant’s admission to calculate drug quantity. (254) Defendant pled guilty to distributing more than 100 kilograms of marijuana. She challenged the district court’s decision to hold her accountable for 167 kilograms of marijuana. The Seventh Circuit affirmed the drug quantity estimate based on defendant’s admission at the plea hearing. The government said it would present evidence at trial that defendant was responsible for between 100 and 400 kilograms of marijuana. When the judge asked defendant about the government’s recitation of facts, defendant said she did not know what a kilogram was. When her attorney told her 2.2 pounds, defendant acknowledged that the government’s figure was correct. The fact that defendant asked what a kilogram was suggested that she was listening carefully to the court’s questions, making sure she understood and that the answers were accurate. The probation officer found defendant distributed 167 kilograms, or 370 pounds, since the conspiracy lasted 38 weeks and with one exception, defendant distributed ten pounds per week. The probation officer’s calculations were based on defendant’s own statements to authorities after her arrest. U.S. v. Tyler, 125 F.3d 1119 (7th Cir. 1997).
7th Circuit upholds assumption that defendant converted powder cocaine into crack. (254) Defendant was convicted of a crack cocaine conspiracy. The district court held defendant accountable for 900 grams of crack cocaine by assuming that a co-conspirator supplied 4 nine-ounce quantities of powder cocaine to defendant that were converted to crack cocaine in a proportion of 25 grams of crack for each ounce of powder cocaine. Defendant argued that it was improper to assume that all of the powder cocaine was converted to crack, and that the co-conspirator testified at trial that he supplied defendant with cocaine 3 or 4 times. The Seventh Circuit found no error. The co-conspirator insisted on both direct and cross-examination that he made four sales to defendant. The court’s assumption that all of the powder was cooked into crack was reasonable. A number of witnesses testified that they purchased crack, not powder, from defendant throughout the time frame of the conspiracy. There was no evidence that defendant ever distributed anything but crack. The district court was entitled to credit the testimony of the co-conspirator and other witnesses, despite their prior felony convictions, their efforts to cooperate in prosecuting him, and their prior drug use. U.S. v. Taylor, 116 F.3d 269 (7th Cir. 1997).
7th Circuit uses market price of crack in area to estimate quantity sold by defendant. (254) Defendant sold a total of 7.6 grams of crack to an undercover agent on three occasions. The agent paid exceptionally prices ranging from $111 per gram to $220 per gram. The agent also testified that he bought a minimum of $100 worth of cocaine base from defendant three times a week for a five-month period, but he did not testify what amounts those dollar amounts procured. The probation officer estimated that $100 would buy 1 gram of crack, and found that defendant had apparently deliberately overcharged the undercover agent in the three documented sales. A DEA agent who had been working in the area since 1981 confirmed this estimate. Based on this testimony, the district court held defendant accountable for a total of 43.6 grams—7.6 grams from the documented sales and 36 grams for the previous five-month period. The Seventh Circuit affirmed, holding that the district court was not required to use the price-to-quantity ratio from the three documented transactions. The court had reliable evidence that a lower ratio was more accurate. It did not even use the proposed $100 per gram ratio, which would have led to a far greater amount. U.S. v. Wade, 114 F.3d 103 (7th Cir. 1997).
7th Circuit estimates drugs in unrecovered packages from drug weight of recovered package. (254) Postal inspectors intercepted a package from defendant to another man containing crack cocaine. Defendant had sent by Express Mail six prior packages of crack. The government did not know the weight of the crack in those packages, but it did know the total combined weight of all seven packages was 52.50 ounces, because those figures were recorded on the mailing labels. The weight of the cocaine in the last recovered package was about 71 percent of the package’s total weight. If the weight of the cocaine in each of the packages was 71 percent of the total weight, the total amount of cocaine was 36.56 ounces, or 1036.47 grams. In sentencing defendant for more than 500 grams of cocaine, the court noted that even if the weight of the cocaine was only 50 percent of the total weight, the figure was still more than 500 grams. In addition, the recipient of the drugs testified that defendant sent him 30.6 ounces, or 867.31 grams. The Seventh Circuit upheld the court’s drug quantity determination. The district court was entitled to believe the co-conspirator’s testimony, and the court’s reliance on the estimates of drug quantities was not improper. U.S. v. James, 113 F.3d 721 (7th Cir. 1997).
7th Circuit upholds estimate of 100 grams of heroin per week. (254) The district court held defendant, the self-proclaimed “five-star” chief of a gang, responsible for distributing 100 grams of heroin per week during the course of a 43-week conspiracy. This was based in part on defendant’s own statement to investigators that he distributed 100-200 grams per week and sometimes as much as 400 grams. At sentencing defendant disputed this account. The Seventh Circuit affirmed the district court’s estimate. The judge properly found the AFT agent’s account of what was said at the meeting to be more credible than defendant’s later recantation. This was also supported by police intelligence reports that defendant was in charge of the heroin trade in town, and claims by two informants that defendant was bringing in four to five ounces (112 to 140 grams) per week. Moreover, there were an estimated 400 addicts in the area, and a majority of them used a half-grams of heroin per day. Although one witness estimated that the conspiracy distributed between 50 and 100 grams per week, in light of the other evidence, the court was not required to use the 50-gram figure. U.S. v. Taylor, 111 F.3d 56 (7th Cir. 1997).
7th Circuit says court accounted for co-conspirator’s absence in determining quantity. (254) Defendant pled guilty to conspiring to distribute cocaine base. He challenged the district court’s quantity determination, which relied heavily on the testimony of a co‑conspirator. Defendant suggested that because the co‑conspirator was out of town for one week in question, his testimony was unreliable. The Seventh Circuit held that the district court properly took into account the co‑conspirator’s absence in calculating drug quantity. The court modified its order and lowered the quantity from 1500 grams to 1250 grams to account for the week in question. U.S. v. Tanksley, 104 F.3d 924 (7th Cir. 1997).
7th Circuit bases quantity on estimate of daily drug sales and number of days. (254) Defendant was convicted of a variety of drug charges. The district court held him accountable for 2.5 kilograms of crack, finding his operation distributed between 10‑30 grams of crack per day from November 1993 through August 3, 1994. The Seventh Circuit upheld the court’s estimate. Numerous parties testified about the quantity of drugs they received and sold. The district court took a low estimate of daily sales (10 grams) and multiplied it by the number of days the conspiracy was in effect (about 250 days) to reach 2.5 kilograms over the life of the conspiracy. Although defendant argued that the witnesses had motives to lie and were biased by the lenient treatment they received from the government, credibility determinations are for the district court. U.S. v. Golden, 102 F.3d 936 (7th Cir. 1996).
7th Circuit upholds drug quantity calculation based on credible witnesses. (254) Defendant was convicted of drug conspiracy and firearms counts. The district court calculated the drug quantity using a chart prepared by an FBI agent who interviewed seven witnesses. The chart outlined the quantity of drugs that each witness attributed to defendant based on the witness’s interactions with and observations of defendant. Defendant argued that the people providing the drug quantity information were “patently unbelievable” and they did not provide adequate information regarding the dates, times and places where the alleged transactions occurred. The Seventh Circuit affirmed the district court’s finding that defendant was responsible for at least 150 grams of cocaine base. The district court found the witnesses credible. Regarding defendant’s criticism of the lack of specific details, the court noted that it was not in the nature of this “illegal business” to keep records. The statements of two of the witnesses alone, both of whom the court observed at trial, could place defendant in the 100-500 gram range. U.S. v. Robinson, 96 F.3d 246 (7th Cir. 1996).
7th Circuit rejects estimate for lack of basis for minimum amount of cocaine. (254) The probation officer estimated the total quantity of crack defendant sold to the informants by taking their own estimates of the minimum number of times they bought crack from defendant and multiplying that figure by what she believed was the minimum quantity sold. The Seventh Circuit rejected the estimate because there was no evidence of the minimum quantity sold. Although the informants testified that they typically purchased $20 rocks from defendant, neither said how much a $20 rock weighed. None of the testifying police officers provided that information. The defendant must be on notice of all assumptions, rationale, and methodology underlying a calculation. It was not apparent why the probation officer assigned a weight of 0.1 grams to each of the informants’ purchases. U.S. v. Howard, 80 F.3d 1194 (7th Cir. 1996).
7th Circuit upholds estimate of cocaine weight where defense never offered own estimate. (254) At trial, a senior DEA chemist testified about his statistical method for weighing the cocaine. He testified that Exhibit 1 consisted of 25 boxes containing 498 packages of cocaine. He randomly selected 28 packages from the 25 boxes, and weighed the cocaine. Each package was about the same size. The net weight of the packages was slightly over one kilogram per package. Based on this analysis, he testified that the total weight of Exhibit 1 was slightly over 500 kilograms. Based on this scientific sampling, he found the total weight was 1035 kilograms. The Seventh Circuit upheld this estimate, even though defendant produced his own expert who opined that the government’s method was not reliable. A mere battle of experts does not imply a draw. Defendant produced no evidence that the quantity was less than 500 kilograms. His own expert did not offer his own estimate of the weight of the cocaine. Defendant’s expert neither saw nor tested the cocaine. U.S. v. Vega, 72 F.3d 507 (7th Cir. 1995).
7th Circuit upholds reliance on drug quantity estimates in PSR. (254) Defendants claimed that the district court improperly relied on drug quantity estimates prepared by the probation office, which were based on statements of “questionable reliability.” The Seventh Circuit held that the court’s reliance on the information in the PSR was proper. The information relied on by the probation office, since it came from a half a dozen people with first hand knowledge of the drug network, bore sufficient indicia of reliability to support its probable accuracy. Because the individuals gave largely consistent and mutually corroborating accounts, the fact that some of the individuals were admitted drug users was not significant. The corroboration obviated the need for a searching inquiry into how drug use affected the reliability of the statements. Moreover, the statements were not taken at face value and the estimates made were conservative. U.S. v. Taylor, 72 F.3d 533 (7th Cir. 1995).
7th Circuit upholds estimate given by drug addict. (254) Defendant’s associate told police that he and defendant made methcathinone at least 30-40 times, and each “cook” produced five to six ounces. Defendant’s live-in girlfriend stated that the two made methcathinone 12 times before she moved into defendant’s trailer, and twice after she moved in. Each “cook” yielded between five and six thousand dollars, and defendant sold the drug for $1,000 an ounce. The district court held defendant accountable for 70 ounces of methcathinone (14 “cooks,” with each “cook” yielding five ounces). Defendant argued that the district court failed to subject the information to special scrutiny under U.S. v. Beler, 20 F.3d 1428 (7th Cir. 1994) in light of the witnesses’ dual status as methcathinone addicts and government informants. The Seventh Circuit held that the district court properly applied the searching scrutiny required by Beler. The district court did not accept the associate’s statement at face value, but instead discounted it. The court found the girlfriend credible. The only evidence which conflicted with her statement was defendant’s self-serving statement that he had engaged in only 10 “cooks” producing three to four ounces each. U.S. v. Vold, 66 F.3d 915 (7th Cir. 1995).
7th Circuit upholds conservative estimate of drug quantity. (254) The district court relied upon the testimony of two co-conspirators to hold defendant accountable for between 50 and 150 kilograms of cocaine. The Seventh Circuit upheld the estimate, which was well below the amounts actually suggested by the testimony. The most conservative numbers from one witness’s testimony alone established that defendant was responsible for at least 155 kilograms of cocaine. This figure did not include a contemplated 25-kilogram deal. The other witness’s testimony showed that defendant was responsible for deals involving substantial amounts of cocaine. Although both witnesses provided estimates and not mathematically precise figures, a court may rely on such estimates to determine drug quantity. U.S. v. Garcia, 66 F.3d 851 (7th Cir. 1995).
7th Circuit rejects drug estimate based on arbitrary figure. (254) Defendant was involved in a cocaine base conspiracy. One conspirator testified that his drug selling activities involved a minimum of 874 grams of cocaine base. The district court attributed to defendant 18 grams he had been convicted of selling, plus 10 percent of the 874 grams. For various reasons, the court found it could not accept the full amount that the conspirator claimed. The Seventh Circuit reversed because the record suggested the court did not have sufficient faith in the conspirator’s testimony to use it as the basis for attributing further amounts to defendant. The court stated that the 10 percent multiplier was an arbitrary figure, but used it because it found there was significant evidence of a conspiracy. However, a finding that a defendant’s drug activity is substantial does not translate into a specific drug quantity finding. A court may not choose a random number simply because it believes that more drugs were involved than the sales indicated. U.S. v. Henderson, 58 F.3d 1145 (7th Cir. 1995).
7th Circuit upholds classification of drugs as crack rather than powder cocaine. (254) Defendant supplied crack cocaine to a distribution network. The district court calculated the money defendant received by Western Union wires and used an estimated price for the crack cocaine to estimate the quantity of distributed drugs attributable to defendant. Defendant argued that the district court erred in classifying the entire quantity as cocaine base rather than at least partially as cocaine powder. The Seventh Circuit upheld the classification of the entire drug quantity as crack. Defendant delivered cocaine either in crack form or the other participants converted it into crack before selling it. Defendant knew or reasonably should have foreseen the conversion to crack. There was no evidence that the participants who actually did the selling sold anything but crack cocaine. U.S. v. Shorter, 54 F.3d 1248 (7th Cir. 1995).
7th Circuit relies on government chart detailing drug transactions discussed at trial. (254) At sentencing, an FBI agent presented a chart summarizing the evidence presented at trial concerning the amount of cocaine involved in defendant’s conspiracy. The chart listed 12 separate quantities of cocaine totaling more than 7,915 grams. The Seventh Circuit upheld the district court’s finding that more than five but less than 15 kilograms of cocaine was involved in the conspiracy. U.S. v. Johnson, 46 F.3d 636 (7th Cir. 1995).
7th Circuit relies on supplier’s testimony to determine buyer’s drug purchases. (254) For over a year, defendant regularly purchased distribution size quantities of cocaine from a local drug supplier. The 7th Circuit held that the district court properly relied on the supplier’s testimony to hold defendant accountable for 22 kilograms of cocaine. To arrive at the 22-kilogram total, the district court began with defendant’s two half-kilogram purchases from 1988 and 1989 and added to them a kilogram for every month from January 1990 through September 1991. This estimate was based on the supplier’s testimony that he regularly sold cocaine to defendant during this period at two week to one month intervals, usually in quantities of one to two kilograms. This information was partially corroborated by recent entries in the supplier’s notebook. Defendant’s accusations of tampering were unsubstantiated and the court was entitled to reject them. U.S. v. Clay, 37 F.3d 338 (7th Cir. 1994).
7th Circuit upholds drug estimates based on witness testimony and amount of money laundered. (254) The 7th Circuit upheld the district court’s estimate of the quantity of cocaine attributable to three defendants. The district court used two methods to determine that the first defendant was responsible for over five kilograms. It relied on witness testimony regarding the number of trips defendant made to Chicago, and defendant’s admissions. Conservatively, the court arrived at a total of 10.5 kilograms, well over five kilograms. The court also considered the amount of money laundered by defendant, using the price of cocaine to estimate the quantity of cocaine needed to generate the cash. This figure corroborated the earlier estimate of over five kilograms. The court found the other two defendants accountable for 1173 grams of cocaine. Several witnesses testified that these defendants were directly involved with 173 grams. An additional kilogram was attributable to them because of their effort to broker a deal between two conspirators. U.S. v. Ferguson, 35 F.3d 327 (7th Cir. 1994).
7th Circuit upholds estimate of drugs based on bags containing cocaine residue. (254) Defendant sold drugs to an informant. Police found marijuana, cocaine, and drug mixing equipment in an apartment to which defendant had access. Relying on the informant’s testimony, the testimony of a DEA drug agent, and physical evidence from the apartment, the district court attributed to defendant 11 kilograms of cocaine in addition to drugs actually seized. The 7th Circuit affirmed the estimate. It was clear that the apartment served as a center for distributing large amounts of cocaine, and that defendant was sufficiently connected to the apartment to hold him accountable for the drugs that passed through it. A DEA agent testified that the large kilogram bags containing cocaine residue probably each held separate kilogram quantities of cocaine at one time. The district court accepted this, but did not attribute to defendant additional kilograms based on wrappers and many smaller baggies found in the apartment. The court’s estimate was objectively based and unlikely to result in double counting. U.S. v. Acevedo, 28 F.3d 686 (7th Cir. 1994).
7th Circuit upholds officer’s estimate of portion of drugs defendant kept for personal use. (254) The district court held defendant accountable for between 500 grams and 2 kilograms of cocaine. Evidence showed that defendant purchased nearly $60,000 worth of cocaine. Defendant was a heavy drug user, and claimed it was all for personal use. The 7th Circuit upheld the district court’s reliance on a police officer’s estimate that defendant sold 50 percent of the cocaine he acquired. The estimate was reasonable based on the officer’s investigation. There was evidence that defendant was involved in a number of cocaine sales, that sales were made from his liquor store, and defendant admitted making 60 to 100 trips to Milwaukee to purchase cocaine. The information contained sufficient indicia of reliability. U.S. v. Mumford, 25 F.3d 461 (11th Cir. 1994).
7th Circuit upholds estimate based on co-conspirator’s testimony. (254) A co-conspirator testified that defendant bought cocaine from him at least 50 times, and that he usually purchased “ounces, an ounce, two ounces, sometimes less.” The district court found that defendant purchased an average of one-half an ounce 50 times, for a total of 25 ounces. The 7th Circuit affirmed this “conservative approach.” Although defendant claimed he only purchased cocaine 25 times and usually purchased between an eighth and half an ounce, he pointed to nothing in the record to support this estimate. U.S. v. Kozinski, 16 F.3d 795 (7th Cir. 1994).
7th Circuit upholds estimate of amount of cocaine distributed by conspiracy. (254) The district court found that defendant participated in a drug conspiracy from October 6 through December 2, 1988, and that he was chargeable with all the amounts sold by his co-conspirators during that period. There were 34 transactions, but since the evidence only showed the quantity involved in 11 of the transactions, the court took the average amount distributed during the 11 known transactions and multiplied this figure by 4.25, the average number of transactions per week. The court then multiplied this figure by the eight weeks defendant was a member of the conspiracy. The 7th Circuit affirmed. The district court’s estimate was cautious. The court did not take into account the amounts foreseeable to defendant before October 6, even though defendant admitted in his plea agreement that he was working for the conspiracy in the summer. There was nothing to suggest that the 11 transactions used were not representative. U.S. v. McMillen, 8 F.3d 1246 (7th Cir. 1993).
7th Circuit holds supplier responsible for quantity of cocaine produced after distributor cut it twice. (254) Defendant supplied heroin to a drug distributor. He was held responsible at sentencing for the quantity of heroin sold on the streets in its user-strength form. The 7th Circuit affirmed, agreeing with the district court’s conclusion that defendant could reasonably foresee that the distributor would cut the heroin twice before distribution. Defendant’s knowledge and commitment to the conspiracy went deeper than the mere sale of heroin to the distributor. During one 22-week period, he was the conspiracy’s sole heroin supplier. He was in constant contact with the conspiracy’s leader, and was kept apprised of the circumstances affecting the existence of the drug operation. The district court took a cautious approach by holding defendant accountable for the heroin cut twice, when the evidence demonstrated that it was typically cut three or four times before sale. U.S. v. McMillen, 8 F.3d 1246 (7th Cir. 1993).
7th Circuit uses average weight of recovered LSD doses to estimate weight of unrecovered doses. (254) To determine the weight of the 4500 doses of LSD sold by defendant, the district court took the average weight of the 1075 doses recovered from defendants and multiplied by 4500. Defendant argued that the court should have used the guidelines’ “Typical Weight Per Unit Table” located in note 11 to section 2D1.1. The 7th Circuit upheld the use of average weight of the recovered LSD doses to estimate the weight of the unrecovered doses. Reliance on the Table is not necessary when there is a more reliable estimate of the total weight of the LSD. Since LSD is generally sold on a carrier medium, the weight of the medium effectively controls the weight of the LSD for sentencing purposes. There was ample evidence supporting the court’s determination that the doses were uniform in weight: all of the LSD was sold by defendant to the same person, used the same carrier medium, and came from the same supplier. U.S. v. Gaines, 7 F.3d 101 (7th Cir. 1993).
7th Circuit will convert cash into drugs if government proves connection between the two. (254) The 7th Circuit held that a district court may convert seized currency into an equivalent amount of the charged drug as long as the government proves the connection between the money seized and the drug-related activity. Here, the evidence at trial was sufficient to prove, by a preponderance of the evidence, a connection between the money and receipts and the conspiracy’s drug activity. Testimony that the conspiracy transferred drug money by Federal Express supported the finding that money found in Federal Express packages was drug proceeds. U.S. v. Rivera, 6 F.3d 431 (7th Cir. 1993).
7th Circuit upholds estimate despite inconsistencies in testimony. (254) Defendant challenged the finding that he was responsible for distributing over 500 grams of cocaine, contending the court relied on unreliable testimony. Although there were some inconsistencies in one witness’s testimony at trial and at sentencing, the 7th Circuit affirmed the estimate. The district court ruled the inconsistencies were not of such a nature as to disregard the testimony. A district court’s credibility determinations are entitled to great deference. The district court considered the testimony at trial and at sentencing concerning the scope of defendant’s distributions. There was no clear error in determining defendant distributed over 500 grams of cocaine. U.S. v. Carter, 999 F.2d 182 (7th Cir. 1993).
7th Circuit upholds drug estimate based upon hearsay testimony. (254) The 7th Circuit upheld the district court’s determination that defendant was responsible for 2750 pounds of marijuana based on a witness’s hearsay testimony that he delivered this quantity to defendant in 1986. Although there was some evidence the witness was unreliable, his testimony was corroborated by two sources: (1) another co-conspirator testified that the witness was responsible for selling marijuana to defendant, and (2) DEA seizure reports and the trial testimony of another conspirator confirmed that the witness delivered 730 pounds of marijuana to defendant in September 1986. U.S. v. Johnson, 997 F.2d 248 (7th Cir. 1993).
7th Circuit affirms use of witness estimates to determine drug quantity. (254) The 7th Circuit affirmed that 48 ounces of heroin, 59 kilograms of cocaine and 9,856 pounds of marijuana were attributable to defendant’s conspiracy. The estimates were based upon the testimony of at least three witnesses, and in each case, the district court reduced the estimates below the amounts indicated by the witnesses “in an abundance of caution.” It was proper to rely upon a state trooper’s estimate of the weight of marijuana packages based upon a description of the number and size of the packages. The estimate was based on the trooper’s four and a half years experience as a narcotics investigator with the state police. U.S. v. Yanez, 985 F.2d 371 (7th Cir. 1993).
7th Circuit affirms drug quantity where defendant failed to object to PSR or cross-examine DEA agent. (254) Defendant argued that minor deviations in the description of the quantity of marijuana plants showed that the estimations were too vague, especially since the difference between 9,999 and 10,000 plants produced a significantly different sentence. A DEA agent testified that approximately 10,000 plants were discovered at defendant’s farm; his presentence report stated that there were more than 10,000 plants; his co-conspirator’s presentence report stated that 10,200 plants were found. The 7th Circuit affirmed the district court’s determination that more than 10,000 marijuana plants were involved in the offense. Defendant and his counsel were on notice of the issue. They reviewed the presentence report and did not challenge the figure. Defense counsel also chose not to cross-examine the DEA agent concerning drug quantity. U.S. v. Atkinson, 979 F.2d 1219 (7th Cir. 1992).
7th Circuit affirms that defendant distributed between 3.5 and 5 kilograms of cocaine. (254) The 7th Circuit affirmed the district court’s determination that defendant distributed between 3.5 and 5 kilograms of cocaine. First, on the day of his arrest, defendant had sold three ounces of cocaine and had four ounces in his possession. Second, police found $5,000 in defendant’s possession although he admitted he had a cocaine habit and no steady source of income. Third, police found drug notes, seven loaded firearms and other drug paraphernalia in defendant’s bedroom. Fourth, the testimony of two witnesses bolstered the government’s theory that defendant had supplied a dealer for at least four months prior to defendant’s arrest. Finally, 71 telephone calls were made from defendant’s residence to the same Chicago phone number within a two-month period. The dealer testified that his source was receiving his cocaine from a source in Chicago approximately every other day. U.S. v. Villarreal, 977 F.2d 1077 (7th Cir. 1992).
7th Circuit affirms that four to five kilograms were involved in drug transaction. (254) The 7th Circuit affirmed the district court’s determination that four to five kilograms of cocaine were involved in a drug transaction. Although there was evidence that the transaction involved 10 kilograms, the judge believed one of the witnesses was exaggerating. Nonetheless the judge believed the transaction still involved a substantial amount of cocaine based on the significance of the operation, amounts of cocaine involved in other transactions in which defendants participated, and the repeated references to $40,000 in taped conversations among the co-conspirators. U.S. v. Centracchio, 977 F.2d 1061 (7th Cir. 1992).
7th Circuit reverses determination that $117,000 listed in drug notes corresponded to five kilograms of cocaine. (254) Notes found in defendant’s wallet at his arrest indicated transactions involving $117,000. A government agent testified that the notes indicated that defendant had control over $117,000 of cocaine. Based upon evidence of the going price for cocaine at the time of defendant’s offense, the district court determined that defendant was responsible for over five kilograms of cocaine. The 7th Circuit reversed, noting that the drug notes did not refer to specific quantities or prices of cocaine, or even to cocaine. The district court relied on price data in the presentence report, which in turn relied upon a confidential source that indicated that a kilogram of cocaine cost $22,000 to $24,000. Given the prices quoted in the report, $117,000 could represent anywhere between 4.875 and 5.318 kilograms of cocaine. U.S. v. Duarte, 950 F.2d 1255 (7th Cir. 1991).
7th Circuit upholds drug quantity calculation based on lowest weekly estimate. (254) The 7th Circuit affirmed the district court’s determination that defendant possessed with intent to distribute 5,386.5 grams of cocaine over the course of a drug conspiracy. The district court multiplied the lowest weekly amount of cocaine defendant admitted receiving by the number of weeks he acted as a distributor. Defendant’s admission was corroborated by several other distributors and by the large amounts of money defendant owed the drug leader. U.S. v. Bafia, 949 F.2d 1465 (7th Cir. 1991).
7th Circuit rejects contention that informant’s testimony was too vague to determine drug quantity. (254) Although defendant contended that he was involved with less than 50 kilograms of cocaine, the district court adopted the presentence report’s determination, based on the testimony of an informant, that defendant was responsible for 77 kilograms of cocaine. The 7th Circuit rejected defendant’s contention that the informant’s testimony was too vague and speculative. The informant testified that from June 1988 to February 1989, he received up to 10 kilograms of cocaine from defendant every two weeks, although the normal quantity delivered was only one kilogram. After February 1989, cocaine deliveries ranged between five and 15 kilograms per trip, including one 27 kilogram delivery. These deliveries occurred biweekly until May 27, 1990, except for a month and a half in April 1989. The district court had ample opportunity to observe the informant during his testimony. The court did not improperly base its finding on evidence presented during a co-defendant’s sentencing hearing. U.S. v. Herrera, 948 F.2d 1046 (7th Cir. 1991).
7th Circuit remands because district court never specified drug quantity on which sentence was based. (254) Defendant was convicted of conspiring to distribute less than 500 grams of cocaine. He was sentenced to 97 months, which would have been a lawful sentence for at least 3.5 but less than five kilograms of cocaine. The 7th Circuit remanded for resentencing because the quantity of cocaine was never discussed during sentencing. There was a “bald” statement in defendant’s presentence report that the government believed defendant was responsible for at least four kilograms of cocaine. However, this would be a poor source for estimating the quantity of cocaine since there was no basis given for the government’s conclusion. Even if the presentence report had been expressly adopted by the district court, it would not have sufficiently explained the sentence. In imposing sentence a court must give reasons explaining, at the very least, how it computed the base offense level and applicable guideline range. U.S. v. Leichtnam, 948 F.2d 370 (7th Cir. 1991).
7th Circuit affirms drug quantity based on testimony that defendant paid burglar 200 times in eight months. (254) Defendant was a fence who paid for stolen goods with cocaine. The 7th Circuit affirmed that defendant’s offense involved in excess of 500 grams. Police found 174 grams on his premises, together with $50,000 in cash and stolen property. Defendant paid two burglars 21 and 28 ounces of cocaine, respectively, for their goods. Another burglar testified that he sold stolen items to defendant approximately 200 times over an eight-month period. If defendant paid this burglar cash plus one-sixteenth of an ounce of cocaine as he did with the others, then he distributed 354 grams of cocaine to one burglar alone. This put him well over 500 grams. Alternatively, the district judge would have been entitled to determine that defendant doled out a substantial quantity of cocaine for the cash and merchandise on hand. Judge Cudahy, dissenting in part, found the burglar’s story improbable, and that the majority too lightly regarded the requirement that aggravating factors must be found by a preponderance of the evidence. U.S. v. Ferra, 948 F.2d 352 (7th Cir. 1991).
7th Circuit finds inadequate factual findings as to defendant’s drug transactions. (254) Defendant was involved in a conspiracy which imported large quantities of marijuana. The district court found that defendant was responsible for importing 6600 pounds of marijuana. The 7th Circuit vacated and remanded for additional findings. The court had failed to detail why 6600 pounds was chosen. It did not say which importation episodes it considered in arriving at its calculation, nor did it find that defendant participated in the importation activities that were the basis of the substantive charges for which he was acquitted. Such specificity was necessary in light of defendant’s argument that he joined the conspiracy months after it had begun and therefore should not have been held liable for its earliest importations. U.S. v. Morrison, 946 F.2d 484 (7th Cir. 1991).
7th Circuit upholds basing drug quantity on estimation by government witness. (254) A government witness testified that on average, per month, he sold cocaine for the defendant in the amount of “one to two ounces maybe, at the most.” The 7th Circuit upheld the district court’s determination that defendant was involved in the distribution of one ounce of cocaine per month. The transaction which led to defendant’s arrest corroborated the witness’ testimony that he was involved with the defendant in a conspiracy to distribute cocaine and gave credence to his estimate of the amount of cocaine distributed. The witness had knowledge of the amount of cocaine that was available for distribution as well as the amount distributed. U.S. v. Welch, 945 F.2d 1378 (7th Cir. 1991).
7th Circuit upholds sufficiency of evidence to determine cocaine quantity. (254) Defendant coordinated a drug importation and distribution network that paid couriers to transport drugs and money between various locations. Defendant contended that his offense level of 32 was incorrect because the prosecution did not prove that the contents of various courier packages contained 18.5 kilograms of cocaine. The 7th Circuit rejected defendant’s contention. The prosecution proved that the couriers made at least 16 trips carrying one to three packages of cocaine per trip. The last packages delivered prior to defendant’s arrest contained cocaine. Some of the couriers saw cocaine in several of the packages, and defendant was observed weighing and packaging cocaine in his hotel room. On several occasions, defendant and others informed the couriers that they were carrying kilogram amounts in each package, and that each package would bring between $12,000 and $16,000. This evidence was sufficient for the jury to convict defendant, and therefore was sufficient for purposes of proving the amount of cocaine for sentencing. U.S. v. McKenzie, 922 F.2d 1323 (7th Cir. 1991).
7th Circuit affirms use of officer’s testimony to determine weight of drugs. (254) Defendant offered cocaine to an undercover officer at an initial “buy” meeting but did not sell the officer the cocaine. At sentencing, the officer testified that defendant possessed 2 to 3 ounces of cocaine. Despite a lack of testimony that the officer had ever seen or weighed cocaine, the 7th Circuit held that under guidelines § 6A1.3, the district court properly relied on the officer’s estimate based on the officer’s background as a narcotics officer. U.S. v. Buggs, 904 F.2d 1070 (7th Cir. 1990).
8th Circuit upholds pill estimate based on math calculation rather than direct evidence. (254) Defendant led a large-scale drug operation that distributed prescription drugs. The district court found that defendant was responsible for 15.354 kilograms of marijuana equivalent, based on a total of 16,725 pills: 7,172 pills were classified as Oxycontin pills, and 9,553 as Opana pills, based on the trend in sales of each drug that police observed during the dates of the conspiracy. Defendant argued that the district court erred by not limiting the drug quantity to the pills recovered by confidential informants during the controlled buys. The Eighth Circuit disagreed. A district court may consider “all transactions known or reasonably foreseeable to the defendant that were made in furtherance of the conspiracy.” Defendant did not allege a lack of knowledge or foreseeability with respect to any portion of the drug quantity attributed to him. The methodology used by the court was proper. It was of no consequence that the district court’s drug quantity determination was based on a mathematical calculation as opposed to direct evidence. U.S. v. Colton, 742 F.3d 345 (8th Cir. 2014).
8th Circuit upholds finding that defendant was responsible for 15 to 50 kilograms of cocaine. (254) Defendant pled guilty to conspiracy to distribute cocaine. The district court found, based upon the evidence found at the residence used by the conspiracy, that defendant was responsible for between 15 and 50 kilograms of cocaine. The Eighth Circuit affirmed. Defendant’s “lack of legitimate employment, the cash seized from his person and his residences, his history of possessing substantial cash, and sending substantial cash to Mexico” and, most importantly, the cocaine-processing room at the residence – which was literally coated in cocaine dust and contained a wide variety of cocaine-processing paraphernalia – provided ample evidence of a cocaine operation involving at least 15 to 50 kilograms of cocaine, and possibly much more. U.S. v. Mendoza, 677 F.3d 822 (8th Cir. 2012).
8th Circuit holds that court did not clearly err in converting cash into its crack equivalent. (254) Defendant was arrested in 2008 in possession of a handgun and small quantities of crack, cocaine, and marijuana. In May 2009, defendant sold crack to a confidential informant. In June 2009, he was arrested in possession of a handgun, $5350 in cash, and 13.91 grams of crack. The Eighth Circuit held that the district court did not clearly err in converting the cash into its crack equivalent. The district court considered it likely that the money was connected to drug trafficking based on defendant’s sparse employment history, his recent crack sale to the informant, and the incredibility of testimony by defendant’s sister, who claimed she gave defendant the money as a down payment on her purchase of his SUV. The evidence amply supported the conclusion that the conversion helped to reflect the scale of defendant’s underlying drug trafficking offense more accurately, which is all the Guidelines require. U.S. v. Grays, 638 F.3d 569 (8th Cir. 2011).
8th Circuit upholds drug quantity extrapolation based on defendant’s admission. (254) The district court found that defendant’s offense involved between 5 and 15 kilograms of cocaine. First, the court said it was “bound by the jury determination” that the conspiracy involved over 16 kilograms of cocaine. The Eighth Circuit found this figure was not binding because the jury was instructed to determine the total quantity of cocaine involved in the conspiracy, including drugs distributed by co-conspirators. That figure was relevant, but § 1B1.3 refers to the narrower concept of the joint activity in which the defendant participated. However, the court’s second reason supported its drug quantity finding. Defendant had admitted trafficking over three kilograms of cocaine before leaving the reservation where the conspiracy operated. At that point he had been handling around fourteen ounces of cocaine per month. Had he continued selling at that rate, defendant would have handled a total of five kilograms of cocaine in about four more months. U.S. v. Elk, 632 F.3d 455 (8th Cir. 2011).
8th Circuit holds that evidence supported drug quantity finding. (254) Defendant contended that the drug quantity used at his sentencing was overstated, and included both the methamphetamine that he was buying from one witness, and then selling to another. He claimed that to include both weights would be double counting. The Eighth Circuit ruled that defendant did not show that the court’s drug quantity finding was clearly erroneous. The district court found that there was sufficient evidence to support its finding that “the bare minimum amount of drug involved here was 574 grams.” The court acknowledged that it had to be careful of double counting. Reviewing the record testimony, it was “readily evident that adding the frequency and quantity of drugs that defendant trafficked show[ed] that his drug quantity easily exceed[ed] the charged 500 grams.” U.S. v. Zierke, 618 F.3d 755 (8th Cir. 2010).
8th Circuit holds that court was not required to reduce drug quantity based on lab’s margin of error. (254) The government presented evidence supported by lab reports that 155.18 grams of methamphetamine was attributable to defendant. Both parties stipulated to a 10% margin of error. The district court held defendant accountable for 155.18 grams of meth, and defendant argued on appeal that he should have received the benefit of the 10% margin of error, which would have yielded a lower advisory guideline range. The Eighth Circuit held that the district court was not required to use the lab’s margin of error to drive the drug quantity down into a lower offense level. There was no evidentiary basis for applying the margin of error in one direction or another. The court’s quantity determination was well supported by the record. U.S. v. Montes-Medina, 570 F.3d 1052 (8th Cir. 2009).
8th Circuit upholds conversion of seized cash into cocaine. (254) Drug task force officers executing a search warrant at defendant’s apartment found marijuana, crack, ecstasy, drug paraphernalia and $5,290 in cash. The task force identified $100 of the money as drug task force funds used in controlled buys. The Eighth Circuit held that the district court did not err by converting the cash found during the search into crack cocaine quantities attributable to defendant. In order to accurately reflect the scale of drug trafficking activity, the Guidelines authorize the district court to convert seized money into a quantity of drugs. Here, although defendant’s girlfriend testified that the cash belonged to her, the district court credited a detective’s contrary testimony on behalf of the government. Record evidence supported this testimony, including defendant’s own admissions, his signature on the confiscation form claiming ownership of the money, and $100 of prerecorded controlled buy funds being commingled with the $5,290. U.S. v. King, 518 F.3d 571 (8th Cir. 2008).
8th Circuit reduces pseudoephedrine quantity by estimate of retailer’s legal sales. (254) Defendant owned and managed a gas station that ordered large amounts of pseudoephedrine, and then sold it to retail customers in excess of the three-unit limit imposed by federal law. The district court found that defendant illegally distributed three kilograms or more of pseudoephedrine, and the Eighth Circuit affirmed. During the six-month period covered by the indictment, defendant ordered 3,362 units of generic pseudoephedrine from the distributor, which translated to 4.841 kilograms of pseudoephedrine. This was more than five times the amount the distributor sold to any other company. Assuming all sales to the second leading purchaser were legal, and discounting the purchases made by defendant by that amount, reducing the total defendant purchased by one fifth would result in 3.78 kilograms. This was more than the three kilogram amount needed to support defendant’s sentence. U.S. v. Bewig, 354 F.3d 731 (8th Cir. 2003).
8th Circuit rejects credibility challenge to detective’s drug quantity testimony. (254) At defendant’s drug trial, a police detective testified about a statement defendant made to him about drug quantity during an interview. Defendant argued that the court did not consider the possibility that the detective’s testimony was incorrect, and that the court found the testimony credible before hearing all of defendant’s sentencing evidence. The Eighth Circuit upheld the court’s drug quantity calculation. Credibility issues are virtually unassailable on appeal. Moreover, the judge evaluated the detective’s testimony after hearing all of the evidence. Although the judge stated that she accepted the detective’s testimony before defendant offered any sentencing evidence, the judge then said “if you have anything else you want me to consider, I’m happy to consider that.” The record also showed that when defendant announced he had a witness, the judge allowed the witness, listened to the witness, and then disagreed with the witness. There was no error. U.S. v. Harris, 352 F.3d 362 (8th Cir. 2003).
8th Circuit holds that court clearly erred in holding defendant responsible for smaller drug quantity. (254) The government argued that defendant was responsible for at least 500 grams of methamphetamine, but the district court found defendant responsible for only 350 grams. To justify the reduced quantity, the court gave deference to the jury on the question of drug quantity. However, once the jury found defendant guilty, it was the district court’s responsibility to determine drug quantity, not the jury’s. Second, the judge credited Sadler’s testimony in which she claimed she did not sell meth to defendant. However, during proffer talks defendant admitted to obtaining a total of 800.87 grams of meth from various sources, and these amounts were uncontested. Defendant admitted to receiving a total of 236.8 grams from Sadler, and even if this amount was deducted from the total of 800.87 grams, this would still leave defendant responsible for 574.07 grams of meth. Therefore, even allowing for the court’s rejection of Sadler’s trial testimony, defendant was still responsible for more than 500 grams of meth. The Eighth Circuit ruled that the district court clearly erred in establishing drug quantity. U.S. v. Sanders, 341 F.3d 809 (8th Cir. 2003).
8th Circuit approves estimate for four previous trips based on amount of drugs involved in interrupted trip. (254) Defendant, a passenger on a bus from California to South Carolina, was arrested during a layover in Kansas City after police found three kilograms of cocaine in his bag. In another bag, the police found four car rental receipts from prior trips to South Carolina. In calculating defendant’s offense level, the district court found that the four prior trips were relevant drug trafficking conduct and estimated that defendant had distributed three kilograms of cocaine on each trip. The Eighth Circuit affirmed. There was ample evidence to support the conclusion that defendant made four prior trips to South Carolina in the months preceding his arrest for the purpose of distributing cocaine. Defendant admitted he had made four trips to South Carolina in the five months before his arrest. Defendant was unemployed, but incurred significant travel expenses, drove rental cars substantial distances, and purchased expensive jewelry while in South Carolina. One witness testified that defendant made numerous drug trafficking trips to South Carolina and offered the witness $5,000 per trip to serve as defendant’s driver on future trips. Although the record contained no evidence of the specific quantities involved in these prior trips, the panel was “unwilling to conclude that no quantity” could be reasonably estimated. Since the guidelines required some approximation, and no quantity estimate was more reasonable on this record, the court’s drug quantity finding was not clearly erroneous. U.S. v. Brown, 311 F.3d 886 (8th Cir. 2002).
8th Circuit holds that counsel’s failure to object to drug quantity did not prejudice defendant. (254) The PSR held defendant accountable for three kilograms of powder cocaine and 1.5 kilograms of crack cocaine. Defendant’s attorney did not object to the report, and defendant was sentenced to 290 months. In a motion under 28 U.S.C. § 2255, defendant claimed that his counsel was ineffective because he did not object to the quantity of crack assigned in the PSR. The district court denied the motion, finding that defendant was not prejudiced by his counsel’s failure to object. The Eighth Circuit agreed. Notwithstanding its findings, the court stated that it was limiting its analysis to the 1.5 kilograms of crack seized by authorities. The court recalled the testimony of a chemist who analyzed and weighed the drugs at issue. The total weight reported by the chemist was 1492.2 grams, well within the range of a 38 base offense level. The district court properly found that the government would have been able, even if counsel had objected at the time of sentencing, to satisfy its burden of proof by a preponderance of the evidence regarding the drug quantity. U.S. v. Lindsey, 310 F.3d 606 (8th Cir. 2002).
8th Circuit upholds estimate of potential meth production from iodine defendant possessed. (254) Defendant was convicted of attempting to manufacture methamphetamine. He argued that the district court abused its discretion when it based its drug quantity calculation, in part, on his possession of 20 pounds of iodine, noting that the guidelines do not include iodine as a precursor chemical. The Eighth Circuit found no error, because iodine does not need to be listed in the guidelines as a list I or list II chemical in order to use it to estimate the quantity of methamphetamine defendant was capable of producing. The guidelines’ table of “Listed Chemicals and Quantity” apply to § 2D1.11’s “Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical,” but § 2D1.1 is applicable to § 841 convictions. Under Note 12 to § 2D1.1, the court may estimate drug quantity by considering the size or capability of any laboratory involved. Here, the government presented expert testimony regarding the production capability from the variety of chemicals and equipment found in defendant’s possession. The expert concluded that, from the 20 pounds of iodine defendant possessed, he could produce between 1.3 and 1.8 kilograms of meth, assuming the presence of phosphorous and pseudoephedrine in sufficient quantities and a 60 to 80 percent yield. Defendant’s own expert acknowledged that the government’s estimate was conservative. U.S. v. Hollingsworth, 298 F.3d 700 (8th Cir. 2002).
8th Circuit remands where court used wrong conversion rate. (254) At sentencing, the district court attributed 1/4 of a pound of methamphetamine per week to defendant for the months August through December 1999. The court erroneously converted 1/4 of a pound to 260 grams, and incorrectly calculated the total amount of meth sold over the 20-week period as 4520 grams. The Eighth Circuit found that this was clear error. One fourth of a pound equals 113 grams, resulting in only a total of 2260 grams sold over the 20-week period. U.S. v. Smotherman, 285 F.3d 1115 (8th Cir. 2002).
8th Circuit holds that defendant was well aware of scope of drug conspiracy. (254) The district court found that defendant was accountable for between 10 and 30 kilograms of a substance containing heroin during his involvement in the conspiracy. The Eighth Circuit ruled that the court’s drug quantity estimates were reasonable and supported by the testimony of co-conspirator Heard. Heard testified at trial that defendant ran Frazier’s location on North Grand for about four or five months. He further testified that each of Frazier’s locations distributed between 12 and 15 grams of uncut heroin per day. If defendant was involved for four months and the heroin was diluted at a ratio of six parts filler to one part heroin, as Heard testified, the operation would have distributed 26.9 to 33.6 kilograms of a substance containing heroin, even if only two locations had been open each day during defendant’s involvement. The district court did not clearly err in finding that the sales made at the other distribution locations were reasonably foreseeable to defendant. Defendant not only established one location, but recruited others into the conspiracy, was present at other distribution locations either to pick up drugs or for other reasons related to the operation’s activities, and procured a large volume of empty capsules (about 22,000) to be used in selling heroin. Thus, defendant was intricately involved in Frazier’s operation and well aware of its scope. U.S. v. Frazier, 280 F.3d 835 (8th Cir. 2001).
8th Circuit holds that determination of drug quantity supported by evidence. (254) The PSR attributed 1.3 kilograms of methamphetamine to defendant based on four ounces of meth that defendant discussed with a co-conspirator on October 8, the three ounces of meth discussed on October 13, the two pounds of meth that defendant owed a second conspirator, and one half pound of meth discussed on October 16. The Eighth Circuit held that the district court did not clearly err in holding defendant responsible for 1.3 kilograms of methamphetamine in light of this evidence. Also, the drug notes recovered from a co-conspirator’s house reflected balances of $20,000, $7,999, $7,300 and $6,000 next to the name “Alex,” defendant’s street name. These figures were consistent with purchases of pounds of methamphetamine, not ounces as defendant contended. The district court was not required to deduct any amount for defendant’s personal use of methamphetamine. U.S. v. Jimenez-Villasenor, 270 F.3d 554 (8th Cir. 2001).
8th Circuit upholds reliance on witness testimony that conflicted with defendant’s testimony. (254) Defendant argued that the court’s drug quantity finding was erroneous because, although it was supported by the testimony of witnesses at the sentencing hearing, it substantially exceeded the quantity that defendant admitted to selling. However, evaluations of witness credibility are within the province of the district court. Since there was nothing in the sentencing hearing transcript to suggest that the court’s decision to credit the witness testimony over defendant’s testimony was improper, the Eighth Circuit affirmed. U.S. v. Torres, 258 F.3d 791 (8th Cir. 2001).
8th Circuit upholds estimate based on district court’s assessment of co-conspirator’s statements. (254) While in police custody, Wendt stated that he purchased 608.4 grams of meth from Sanchez-Ramirez and defendant. In comparison, while in police custody Mancini stated she and Wendt received between 1/8 and 1/4 ounce of meth per week from Sanchez-Ramirez during the period of January to March 1998. Mancini was only able to link defendant to the transactions because he acted as Sanchez-Ramirez’s driver. However, Mancini later stated at trial that defendant’s involvement in the transactions was as a negotiator rather than merely a driver. Given the inconsistencies between their statements made upon arrest and those made at trial, the district court was suspicious of both Wendt’s and Mancini’s testimony. However, the government presented corroborating evidence that supported the testimony. Specifically, Agent Hurley was able to make repeated meth purchases from Wendt and Mancini reflective of the amounts of meth the two attributed to defendant, and the agent’s testimony also corroborated defendant’s overall involvement in the scheme. The district court found that the government met its burden regarding drug quantity. The district court is best able to assess the value of testimony and assess the credibility of witnesses. Accordingly, the Eighth Circuit held that the district court did not err in estimating drug quantity based on its assessment of the evidence. U.S. v. Causor-Serrato, 234 F.3d 384 (8th Cir. 2000), abrogated on other grounds, U.S. v. Lopez, 443 F.3d 1026 98th Cir. 2006).
8th Circuit holds that testimony supported drug quantity estimate. (254) Defendant argued that the evidence was insufficient to attribute 250 grams of cocaine to him from a trip to Chicago in the winter of 1994. At trial, Morin testified that he, defendant, Gonzales, and two others drove to Chicago in a van to get cocaine. Sometime after the trip, Morin bagged part of a larger quantity of cocaine that weighed a quarter or a half kilogram. At sentencing, a detective testified that Gonzales told police that she went to Chicago in December 1994 carrying $10,000. The money was used to purchase cocaine that was brought back to Fargo in a van. The detective also testified that $10,000 could be used to purchase more than half a kilogram of cocaine in Chicago. The Eighth Circuit ruled that Morin’s testimony along with Gonzales’s statement provided sufficient evidence to attribute 250 grams of cocaine to defendant for the winter 1994 trip. The district court could have conceivably found defendant responsible for a quantity greater than 250 grams, based on the amount of cocaine $10,000 can buy and on Morin’s testimony that he saw as much as a half kilogram of cocaine when he was bagging it. U.S. v. Granados, 202 F.3d 1025 (8th Cir. 2000).
8th Circuit holds that court could properly estimate drug quantity from other trips. (254) The district court attributed 4554 grams of cocaine and 280 grams of heroin to defendant based on eight trips to Chicago to purchase drugs. Defendant challenged the court’s finding that Gonzales transported a quarter kilogram of cocaine for him in the fall of 1994. Garza testified that he, Gonzales and defendant traveled to Chicago and that Gonzales brought the cocaine back. However, he did not see the cocaine and did not know the quantity. The Eighth Circuit ruled that the district court could have properly estimated the amount of cocaine Gonzales transported by looking at several other Chicago trips that involved similar amounts of cocaine. Defendant urged this very conclusion in his brief submitted before sentencing. U.S. v. Granados, 202 F.3d 1025 (8th Cir. 2000).
8th Circuit affirms reliance on co-conspirator testimony to estimate drug quantity. (254) Defendant was arrested after selling methamphetamine to a government informant. He disputed the district court’s reliance on trial testimony to find him accountable for a total of 78 ounces of meth. The Eighth Circuit ruled that the court’s drug quantity calculation was supported by the testimony of defendant’s co-conspirators. A court is not limited to the actual amount of drugs seized when imposing a sentence, but can consider witness testimony and determine its credibility when calculating the total amount of drugs involved in the conspiracy. Witness credibility is an issue for the sentencing judge that is “virtually unreviewable on appeal.” U.S. v. Benitez-Meraz, 161 F.3d 1163 (8th Cir. 1998).
8th Circuit upholds crack drug quantity finding. (254) Defendant pled guilty to a crack cocaine conspiracy. The Eighth Circuit found no clear error in the district court’s determination of the amount of crack attributable to defendant. The court heard extensive testimony and made factual findings regarding drug quantity based on its assessment of the evidence. The court calculated the amount of crack attributable to defendant by totaling the amounts from various drug transactions described by witnesses, discounting some testimony based on its credibility findings, and approximating certain amounts based on all the evidence. It was proper for the district court to reasonably estimate the total drug quantities based on its assessment of the evidence. U.S. v. Ayers, 138 F.3d 360 (8th Cir. 1998).
8th Circuit relies on addicts’ testimony to estimate drug quantity. (254) Defendant objected to the district court’s reliance on testimony by 3 immunized witnesses who were admitted drug addicts. Defendant’s expert pharmacologist testified at sentencing that users can suffer hallucinations which can distort their estimates of drug quantities. The Eighth Circuit held that the court properly relied on the testimony of these witnesses to establish drug amounts. The sentencing court’s assessment of the credibility of witnesses is nearly unreviewable. There was nothing in the record to indicate that the witnesses had suffered memory loss or hallucinated about the amount of drugs they saw. U.S. v. Dierling, 131 F.3d 722 (8th Cir. 1997).
8th Circuit upholds drug quantity estimate for central figures in drug conspiracy. (254) The defendants were central figures in a drug conspiracy. The district court held them accountable for 10-30 kilograms of heroin and methamphetamine. The Eighth Circuit found that this was a reasonable estimate. A co-conspirator testified that, through one defendant, she purchased methamphetamine in California in one-kilogram quantities. Because she could not recall the total number of purchases she made, the court estimated these purchases at only two kilograms. The co-conspirator also testified that she purchased methamphetamine from the other defendant on more than one occasion. The judge estimated these purchases at two kilograms. The co-conspirator also testified she helped cut and package about 25 grams of heroin a day over a two-year period. This would result in a total quantity of heroin well within the 10-30 kilogram range. The judge corroborated his findings by analyzing additional evidence, including the amounts of money seized from the conspirators, amounts of heroin the co-conspirator transported to California, and the daily volume of sales require to maintain a heroin market in a given city. U.S. v. Padilla-Pena, 129 F.3d 457 (8th Cir. 1997).
8th Circuit affirms drug quantity determinations. (254) Defendants, members of a motorcycle gang, were convicted of RICO and drug charges. The Eighth Circuit affirmed the district court’s various drug quantity determinations. Although one defendant contended that the court improperly included drugs intended for personal use in his drug quantity calculation, the district court carefully reviewed the evidence and determined that the witnesses who testified were credible. A large quantity was attributed to one defendant based on testimony that this defendant had taken property belonging to a witness in payment of a $10,000 drug debt. The district court properly determined that 226.8 grams of methamphetamine was the estimated quantity the witness would need to incur this level of debt. U.S. v. Fairchild, 122 F.3d 605 (8th Cir. 1997).
8th Circuit finds evidence did not support drug quantity. (254) Defendant was involved in a conspiracy to distribute heroin and methamphetamine. The district court attributed 3-10 kilograms of methamphetamine and/or heroin to defendant. The Eighth Circuit found that the evidence did not support the drug quantity finding. There was testimony that during the conspiracy, a package containing about 450 grams of methamphetamine was sent from California to the address where defendant lived. In addition, one witness testified that between fall 1992 and spring 1993 he bought one ounce of methamphetamine from defendant every two or three days. At most, these purchases would total about 2,137 grams. Finally, since methamphetamine costs about $1000 per ounce, and $9000 in wire transfers were traceable to defendant, he was liable for an additional 9 ounces, or 255 grams. All three of these quantities totaled only 2,842 grams, less than the 3 kilograms required to support defendant’s sentence. U.S. v. Logan, 121 F.3d 1172 (8th Cir. 1997).
8th Circuit uses drugs in two seized packages to estimate amount in unrecovered package. (254) In January 1995, Postal inspectors seized a package containing 2232.10 grams of marijuana. A controlled delivery was made, and the recipients were arrested upon receipt. In May 1995, a second package containing 6162.57 grams of marijuana was intercepted. There was also evidence that a third package that was never recovered was sent in May 1995. The weight of the marijuana in the two seized packages comprised 57% of the total weight of the packages. Using this figure, the court then estimated that the weight of the marijuana in the unrecovered package would be about 4136.83 grams. The Eighth Circuit approved the court’s method for estimating the amount of marijuana in the unrecovered package. The court used the same percentage as the recovered packages to determine the net weight of the unrecovered package. This was a reasonable way to estimate the drug quantity of the unrecovered package. U.S. v. Morales, 113 F.3d 116 (8th Cir. 1997).
8th Circuit rejects estimate where no evidence of quantity of drugs in packages. (254) Defendant was convicted of a drug conspiracy. The district court attributed 3 to 10 kilograms of heroin and/or methamphetamine to him. A co-defendant testified that defendant was his sole source for heroin and his primary source for methamphetamine. The owner of a private shipping service testified that in the relevant 22-month period, the conspirators used the services about six times per month. The Eighth Circuit rejected the district court’s drug quantity estimate. Even assuming that most of the packages contained heroin or methamphetamine, there was no evidence of how much of either drug was in any individual package. The government’s suggestion to attribute one ounce of drugs to each package was little more than speculation, especially since the owner of the shipping service testified that sometimes the conspirators brought in unsealed packages that contained only clothes and other personal items. U.S. v. Rodriguez, 112 F.3d 374 (8th Cir. 1997).
8th Circuit estimates purity of methamphetamine from purity of prior delivery. (254) Defendant argued that the district court incorrectly found that he received three pounds of methamphetamine compound in April, when he only received two pounds. The Eighth Circuit held that any error was harmless because it did not affect his guideline calculation. Section 2D1.1(c) requires a court to use the greater of the offense level determined by the entire weight of the mixture or substance or the offense level determined by the weight of the actual methamphetamine. Using defendant’s figures, he delivered a total of 1.67 kilograms of methamphetamine compound for an offense level of 32, rather than 34. However, the court must also determine the quantity of actual methamphetamine involved. Although the April transaction was never recovered, its purity could be estimated from a similar June transaction. Using this purity level of 28%, the two pound mixture delivered to defendant in April had 254 grams of actual methamphetamine. Adding this to two other packages of methamphetamine seized from defendant resulted in a total of 495.2 grams of actual methamphetamine, for an offense level of 34. U.S. v. Byler, 98 F.3d 391 (8th Cir. 1, 1996).
8th Circuit approves converting one‑third of cash seized from defendant into crack for sentencing purposes. (254) Police seized from defendant’s apartment $5,723 in cash in two socks in a footlocker, several pieces of crack individually wrapped in a plastic shopping bag between the footlocker and the wall, a pager, other drug paraphernalia and a loaded pistol. Using information that crack sold in the community for $1,400 per ounce, the PSR converted the cash seized from the footlocker into 115.89 grams of cocaine base. The district court concluded that the government had not proved that all of the money was drug proceeds, but found that at least a third of the money could be reasonably attributed to crack. The Eighth Circuit agreed, noting that defendant had been unemployed for a year before his arrest. His gross income for the three previous years was less than $3000 per year. The seized cocaine was located between the footlocker containing the cash and the wall. A witness had observed defendant with a sizable amount of cash (estimated at $1,000) at the time he was cutting up crack just a few hours before his arrest. U.S. v. Perkins, 94 F.3d 429 (8th Cir. 1996).
8th Circuit says any double counting was harmless due to conservative estimate of quantity. (254) Defendant argued that the PSR “double counted” by adding the 5.4 grams of cocaine and the 7.78 grams of heroin seized to the estimate of 10 grams of heroin and 21 grams of cocaine per week for the 25‑week duration of the conspiracy. The Eighth Circuit held that any double counting was harmless because the PSR made its estimate using the smaller drug quantities that the co‑conspirator reported distributing (10 grams of heroin per week rather than 10.5 grams, a difference of 12.5 grams over the 25‑week period). That difference alone would substantially offset any double counting. In addition, the PSR did not include the drugs represented by the money seized or enhancements for transactions near a protected location or obstruction of justice. U.S. v. Byrne, 83 F.3d 984 (8th Cir. 1996).
8th Circuit uses drug estimate from informant. (254) Defendants challenged the district court’s reliance on an informant’s testimony to determine drug quantity, because the testimony was obtained in exchange for leniency. The Eighth Circuit affirmed the estimate. The testimony, although not entirely credited by the district court, established defendants’ extensive involvement in drug trafficking. The district court found one defendant was responsible for at least 500 grams of cocaine base, based on the testimony of the informant and an undercover agent. The other defendant was responsible for at least 50 grams of cocaine base, also based on the informant’s and the agent’s testimony. The informant’s testimony alone established ranges in excess of these amounts. U.S. v. Williams, 77 F.3d 1098 (8th Cir. 1996).
8th Circuit agrees defendant was responsible for eight ounces of crack. (254) Defendant challenged the district court’s finding that he was responsible for between 150 and 500 grams of crack cocaine. The Eighth Circuit found that the evidence supported holding defendant responsible for at least eight ounces, equal to 226.8 grams, of crack cocaine. The district court credited testimony that defendant made at least five trips to Cedar Rapids with at least one ounce of crack per trip. In addition, defendant’s taped reference to “three O’s,” together with testimony regarding the meaning of “O,” justified holding defendant for three additional ounces of crack. U.S. v. Jackson, 67 F.3d 1359 (8th Cir. 1995).
8th Circuit upholds estimate of bulk purchase based on numerous wire transfers. (254) Over a six-month period, defendant’s conspiracy made multiple wire transfers totaling $65,000 to a confederate in California. Experts testified that the $65,000 could represent receipts for 324 grams sold in 1/10th gram quantities to individual customers, or that amount could buy three to five kilograms in bulk purchases from a supplier in California. The expert opined that the payment system of multiple smaller wire transfers was structured to avoid notice to the government of transfers in excess of $10,000. He also stated that packages of cocaine base were usually not shipped in small amounts. The district court held defendant accountable for three to five kilograms. The Eighth Circuit affirmed, finding the expert’s testimony as to the usual practices of drug enterprises supported the conclusion that the money was used for bulk purchases. Monetary evidence may be used to calculate drug quantities. U.S. v. McCrary, 64 F.3d 420 (8th Cir. 1995).
8th Circuit approves reliance on co-conspirator’s drug quantity estimates. (254) Defendant challenged the district court’s drug quantity determination, claiming that his co-conspirators’ testimony was not credible because it was rejected by the jury. The Eighth Circuit affirmed the district court’s reliance on the co-conspirators’ testimony. The district court’s quantity determination was based on its review of the evidence and credibility of the witnesses. Although the court noted that some of the witnesses exhibited credibility problems, the court went on to make specific findings concerning each witness’s testimony and the quantity attributed to determine the base offense level. The court considered all of the evidence presented, including credibility, and approximated a quantity of drugs attributable to defendant. Judge Bright concurred separately to protest the unreasonable sentence required by the guidelines. U.S. v. Hiveley, 61 F.3d 1358 (8th Cir. 1995).
8th Circuit rejects January as start date for heroin purchases where they began in “early spring.” (254) The district court found that a witness bought 50 grams of heroin from defendant twice a month for nine months (January through September 1992), for a subtotal of 900 grams, plus 148.7 grams seized from the witness in October 1992. This quantity—1048.7 grams, put defendant over the one kilogram threshold of level 32. The Eighth Circuit found that the court erred in adopting the PSR’s conclusion that defendant provided the witness with heroin beginning in January 1992. The witness testified that she began buying heroin from defendant in “early spring” of 1992. Since the government failed to clarify what month the witness was referring to, defendant could not be held accountable for drug sales until March 1992. This reduced defendant’s drug quantity to 848.7 grams, which reduced his offense level to 30. U.S. v. Logan, 54 F.3d 452 (8th Cir. 1995).
8th Circuit finds contradictory testimony too vague to reverse drug quantity estimate. (254) The district court attributed 1379 kilograms of marijuana to defendant. About 907 kilograms, or 2000 pounds, were established by the testimony of one buyer. This buyer testified that over a two-year period he bought between 2000 and 4000 pounds of marijuana from defendant. Defendant argued that the buyer contradicted his own estimate by testifying that during the relevant time period he made 300 to 500 thousand dollars, and made between $300 to $800 a pound profit. On cross-examination, the witness agreed that $400 a pound was a fair average. Defendant argued that this meant the witness sold far less than 2000 pounds. The Eighth Circuit found this testimony “too vague” to warrant reversal. At most, it raised questions for the district court to resolve in its fact finding. The district court’s decision to count two ounces of “crystal” as methamphetamine rather than amphetamine did not affect defendant’s offense level. U.S. v. Alexander, 53 F.3d 888 (8th Cir. 1995).
8th Circuit finds defendant was directly involved with more than 50 kilos of cocaine. (254) Defendant argued that the district court erroneously attributed to him all of the cocaine distributed by the conspiracy. The Eighth Circuit affirmed that determination because there was evidence that defendant was directly involved with over 50 kilograms of cocaine. One conspirator testified that defendant supplied him with about 40 kilos. Another informant testified that she met with defendant several times, culminating with the distribution of seven kilos. Finally, the DEA performed a sweep of several individuals to whom defendant regularly supplied cocaine. The sweep netted $95,000, which translated into at least six kilograms of cocaine. U.S. v. Rice, 43 F.3d 601 (11th Cir. 1995).
8th Circuit relies on co-defendant’s testimony to estimate distributor’s drug quantity. (254) Defendant was a member of a heroin distribution ring. The district court based its drug quantity calculation on the testimony of a co-defendant who bought heroin from defendant. The co-defendant stated that he and another co-defendant picked up seven grams of heroin on a daily basis from defendant for approximately 20 weeks. The district court estimated that 908 grams of heroin were attributable to defendant. The 8th Circuit upheld the estimate. An appellate court will not review a trial court’s assessment of the credibility of witnesses. U.S. v. Karam, 38 F.3d 467 (8th Cir. 1994).
8th Circuit finds testimony of witnesses and wire transfer receipts supported drug quantity. (254) Defendant challenged the district court’s finding that he was accountable for 12.6 kilograms of crack cocaine. The 8th Circuit upheld the determination based on the testimony of numerous witnesses and wire transfer receipts. The court did not itemize each piece of evidence and testimony that supported the calculation. Numerous government witnesses, all of whom the district court found credible, testified about transactions involving large quantities of cocaine base over a period of several months. The district court stated that it probably underestimated the quantities involved. Further, Western Union receipts showed the conspirators made wire transfers totaling $180,000. U.S. v. McMurray, 34 F.3d 1405 (8th Cir. 1994).
8th Circuit upholds estimate based receiving three to six other packages containing drugs. (254) Postal officials intercepted a package to defendants containing 30.0 grams of methamphetamine. One defendant stated that she had received three to six other packages of methamphetamine for which she had paid the same price. The 8th Circuit upheld the court’s finding that defendants were responsible for more than 100 grams of methamphetamine. Although defendant said the seized package looked bigger, it was reasonable to infer that the unseized packages contained the same amount of methamphetamine as the seized package based on her statement that she paid the same price. U.S. v. Wright, 29 F.3d 372 (8th Cir. 1994).
8th Circuit approves use of 20-gram sample to determine that five bottles contained 2500 grams of ephedrine. (254) At trial, the government introduced a 20-gram sample taken from one of the five 500-gram bottles marked “ephedrine” supplied to defendant by undercover agents and seized when defendant was arrested. The sample was determined to be ephedrine. Defendant argued that it was error for the court to conclude that the other four bottles also contained ephedrine. The 8th Circuit found no error. Random testing of substances for drug content is sufficient for sentencing purposes. The court had testimony that the four tape-sealed, “ephedrine”-labeled jars, identical to the one from which the sample was taken, contained ephedrine. Thus, there was no clear error in including the 2000 grams from the untested containers in the drug quantity determination. U.S. v. Roach, 28 F.3d 729 (8th Cir. 1994).
8th Circuit relies on co-conspirator testimony to determine drug quantity. (254) Defendants argued that the co-conspirator’s testimony lacked credibility, reliability and corroboration. However, the 8th Circuit found that the record supported the district court’s finding that defendants were each responsible for between three and 10 kilograms of methamphetamine. Although the credibility of one witness was questionable, three co-conspirators described defendants’ involvement with a total of 9.5 kilograms of methamphetamine. In addition, three other individuals linked defendants to quantities of methamphetamine. U.S. v. Sales, 25 F.3d 709 (8th Cir. 1994), abrogated on other grounds by U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000).
8th Circuit bases sentence on seized drug records. (254) The 8th Circuit found that two defendants were properly held accountable for between 100 and 400 kilograms of marijuana. The 17 pounds seized from the first defendant’s apartment did not reflect the scope of his drug trafficking operation. Drug records seized from his residence showed that during the course of his drug trafficking scheme he had distributed over 401 pounds. The second defendant was properly held accountable for the 150 pounds of marijuana he negotiated to sell to an informant. The second defendant could reasonably foresee the large quantities of marijuana sold by the first defendant. The second defendant had expressed concern about the large number of people carrying bags of marijuana from the first defendant’s residence. U.S. v. Quintanilla, 25 F.3d 694 (8th Cir. 1994).
8th Circuit upholds estimate of 1000 rocks of crack based on weight of two samples purchased. (254) A police detective testified that defendant received 1000 to 1500 rocks of crack cocaine from his suppliers. The district court estimated the total weight of the rocks to be 100 to 150 grams by using an average weight of .1 grams per rock. The average weight was an approximation based on the actual weight of two rocks that were purchased from defendant (one was .076 grams and the other was .12 grams). The court then discounted the 100-gram figure by estimating that defendant diverted one-half to his personal use. To this amount (50 grams), the court added 4.2 grams of crack that were found on defendant when he was arrested. The 8th Circuit affirmed this estimate. As a whole, the district court’s methodology worked in defendant’s favor. U.S. v. Pugh, 25 F.3d 669 (8th Cir. 1994).
8th Circuit remands where information used to determine drug quantity was unclear. (254) The PSR suggested that defendant was responsible for a total of 2707 grams of cocaine base. Defendant objected to the inclusion of 2471 grams. The trial court accepted defendant’s objection, which left a total of 236 grams. However, at sentencing, the court heard testimony that defendant transferred $65,000 by wire to purchase 325 grams of cocaine base. The court then determined that defendant was responsible for 1.5 kilograms. The 8th Circuit remanded, because the trial court’s basis for the 1.5 kilogram figure was unclear from the record. The court may have been using the PSR, the testimony with respect to the $65,000, or both, or some other information, to arrive at the 1.5 kilogram figure. Since the basis for the 1.5 kilogram figure was unclear, appellate review was impossible. U.S. v. Magee, 19 F.3d 417 (8th Cir. 1994).
8th Circuit permits reliance on defendant’s estimate of drug quantity. (254) Defendant pled guilty to conspiracy to distribute cocaine base. In his plea agreement, he agreed that information he provided to authorities could be used to determine the length of his sentence. The district court used the lowest figures in the range defendant described in his debriefing, and used the average price per gram suggested by defendant. The 8th Circuit found no error in relying on defendant’s estimate to determine drug quantity. Defendant specifically acknowledged in his plea agreement that information he gave to authorities would be used to determine his sentence. Defendant did not show that the information he gave was unreliable. The court also did not err by including in its drug-quantity finding the cocaine base defendant purchased for his personal use. U.S. v. Brown, 19 F.3d 1246 (8th Cir. 1994).
8th Circuit permits reliance on defendant’s estimate of drug quantity, and personal use amount. (254) Defendant pled guilty to conspiracy to distribute cocaine. The 8th Circuit found no error in relying on defendant’s estimate to determine drug quantity. He specifically acknowledged in his plea agreement that information he gave to authorities would be used to determine his sentence. He did not show that the information he gave was unreliable. The court also did not err by including in its drug-quantity finding the cocaine base defendant purchased for his personal use. U.S. v. Brown, 18 F.3d 1424 (8th Cir. 1994).
8th Circuit upholds estimate based on pouring cocaine into paper bag. (254) Defendant challenged a witness’s estimate of the quantity of cocaine she saw in defendant’s possession. The estimate was based on her watching a police officer pour cocaine into a paper bag. When the bag appeared to contain the amount of cocaine she had seen, she told the officer, and the officer weighed the cocaine in the bag. The 8th Circuit found no error in the district court’s consideration of this estimate. There was nothing inherently unreliable in it. Moreover, there was more than ample evidence to support the court’s finding that defendant was responsible for at least 525 grams of cocaine. U.S. v. West, 15 F.3d 119 (8th Cir. 1994).
8th Circuit upholds LSD’s weight where chemist tested eight of 213 squares. (254) The government’s chemist tested four squares from one sheet of blotter paper containing 13 squares; and four squares from another sheet with 200 squares. All eight tested positive for LSD. The chemist then weighed the samples, including the blotter paper. She also told the court that she chose the test squares from one side of the larger sheet. The 8th Circuit held it was proper to include the weight of the blotter paper in the total weight of the LSD. It also found sufficient evidence that all of the 213 “hits” contained LSD. The test squares were torn from larger perforated sheets and were imprinted with a rose design identical to the untested squares. The spot testing of additional half-inch squares from each sample also indicated LSD. U.S. v. Holmes, 13 F.3d 1217 (8th Cir. 1994).
8th Circuit vacates where drug weight used by court differed from evidence. (254) The district court calculated the amount of cocaine involved in defendant’s offense based upon an estimated weight of .24 grams per rock of crack cocaine. This figure was obtained from the PSR. However, the only evidence offered at sentencing concerning the weight of a rock of crack cocaine was testimony that a rock sold in the area weighs about .1 gram. Defendant challenged the use of the .24 figure for the first time on appeal. The 8th Circuit held that the use of the .24 figure was plain error. Because the district court did not rely on any evidence presented during the sentencing hearing, and the only evidence differed materially from the weight eventually used by the court, “a significant question” remained concerning the weight of the crack cocaine attributed to defendant. U.S. v. Matthews, 5 F.3d 1161 (8th Cir. 1993).
8th Circuit upholds converting seized money to crack quantity based on preponderance of evidence. (254) Defendant objected to the district court’s conversion of cash found on defendant’s person when he was arrested into the quantity of crack it would represent. The 8th Circuit affirmed that the preponderance of the evidence standard was appropriate for ascertaining whether the money represented the proceeds of crack sales. The factor did not result in such a large sentencing increase as to support a higher burden of proof under U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990). Defendant’s unemployed status, his sales of crack to an undercover office, the intermingling of the marked bills with the other cash seized, and his possession of additional crack when arrested all supported the district court’s decision. U.S. v. Echols, 2 F.3d 849 (8th Cir 1993).
8th Circuit upholds estimate based on co-conspirator’s testimony despite effective cross-examination. (254) One co-conspirator testified that he received about 30 kilograms of cocaine from defendants, a second testified that he received between 10 and 15 kilograms of cocaine, a third said he witnessed transactions involving at least four kilograms, and a fourth testified that he received four kilograms of cocaine from defendants. Based on this testimony, the 8th Circuit upheld the district court’s decision to attribute 45 kilograms of cocaine to defendants. The district court recognized that “forceful cross-examination of these witnesses was at times effective,” but on balance found the credibility of the witnesses sufficient to justify the 45 kilogram finding. U.S. v. Casas, 999 F.2d 1225 (8th Cir. 1993).
8th Circuit affirms drug estimate based on informant’s testimony. (254) The 8th Circuit upheld the district court’s determination that defendant distributed about two ounces of crack cocaine. The quantity determination was based largely on the testimony of an informant. After considering the amount of cocaine seized by law enforcement officials and the informant’s testimony at trial and sentencing, the court found that at least 56.7 grams of cocaine, or two ounces of crack cocaine, were involved. The court detailed its findings concerning the amount of cocaine and set forth the specific reasons why it determined that at least two ounces of crack cocaine were attributable to defendant. U.S. v. Grady, 997 F.2d 421 (8th Cir. 1993).
8th Circuit upholds approximation based upon defendant’s account of his activities. (254) Defendant argued that the district court’s drug quantity determinations were erroneously based upon defendant’s “arbitrary approximations” of the number of transactions he engaged in and the drug quantities involved in those transactions. The 8th Circuit affirmed that the reliance on defendant’s account of his own activities was not clearly erroneous. A police officer testified that defendant provided detailed and specific transaction and quantity estimates at his debriefing interview. U.S. v. Cox, 985 F.2d 427 (8th Cir. 1993).
8th Circuit affirms estimate based on plastic bags retrieved from highway. (254) While chasing defendants in a car, a detective saw the car’s passenger take eight to ten plastic bags, lean out the passenger window, rip open the bags and dump white powder contents onto the highway. The detective later described each bag as containing about one pound of white powder. The 8th Circuit affirmed sentencing defendants on the basis of 2.5 kilograms of cocaine even though only a small portion of that amount was actually produced at trial. The 2.5 kilogram estimate was conservatively based upon the plastic bags recovered from the highway rather than the number of plastic bags the detective testified that he had seen thrown from the car. The detective’s testimony, coupled with the conservative drug quantity actually attributed to the defendants, more than adequately supported the sentencing determination. U.S. v. Mason, 982 F.2d 325 (8th Cir. 1993).
8th Circuit upholds defendant’s responsibility for 100 pounds of marijuana. (254) The 8th Circuit affirmed that defendant was responsible for 100 pounds of marijuana. He admitted to participating in a marijuana distribution network organized and led by Carter. Carter testified that between January and August 1991, he personally gave defendant over 100 pounds of marijuana to sell for him. He further testified that he typically gave defendant 10 to 20 pounds at a time and that on several occasions, defendant owed him more than $30,000. Although there was conflicting testimony from defendant, the court did not err in crediting Carter’s testimony over defendant’s. U.S. v. Graham, 982 F.2d 315 (8th Cir. 1992).
8th Circuit remands for more specific determination of drug quantity. (254) The 8th Circuit remanded for the district court to make specific findings and to reconsider the issue of the quantity of drugs involved in a marijuana conspiracy. Contrary to defendants’ assertions, drug quantity is relevant only to the sentence and is not part of the offense, and thus need not be decided by the jury. A district court’s decision as to drug quantity is a finding of fact that must be accepted by the court of appeals unless clearly erroneous. Here, the district court did not provide a description of how it reached the quantity of 22,000 pounds of marijuana, Thus, the appellate court was unable to review whether the determination was clearly erroneous. U.S. v. Alexander, 982 F.2d 262 (8th Cir. 1992), appeal after remand, 12 F.3d 1103 (8th Cir. 1994).
8th Circuit affirms attribution of 15 kilograms of cocaine base to defendant. (254) The 8th Circuit found no plain error in attributing to defendant 15 kilograms of cocaine base. A co-conspirator testified at trial that defendant received between one to five kilograms of cocaine a week beginning in early 1988 and ending in the fall of 1989. In addition, the presentence report stated that while defendant did not always sell his cocaine in the form of cocaine base, he was fully aware that his co-conspirators were doing so. U.S. v. Turner, 975 F.2d 490 (8th Cir. 1992).
8th Circuit affirms quantity estimate based upon cooperating co-conspirator’s testimony. (254) The 8th Circuit affirmed the district court’s attribution to defendant of 69 pounds of methamphetamine, even though only four pounds were actually seized by the government. The district court was permitted to estimate the amount of drugs involved in the conspiracy. Here, the court based its estimation of drug quantity involved in the conspiracy on a cooperating co-conspirator’s trial testimony. The district court was entitled to believe the co-conspirator and the appellate court would not disturb the lower court’s credibility determination. Senior Judge Bright concurred separately to protest the “draconian” sentences required by the sentencing guidelines in this case. U.S. v. England, 966 F.2d 403 (8th Cir. 1992).
8th Circuit upholds use of lightest known weight of blotter paper. (254) Of the 33,800 dosage units of LSD attributed to defendant, the actual weight of only 1800 was known. Those tested had weights ranging from .00692 grams per dose to .0055 grams per dose. Applying the rule of lenity, the district court attributed the lightest known weight to all dosage units. Defendant objected, contending that the court should have used the “Typical Weight Per Unit” table in application note 11 of section 2D1.1. This table lists a per-unit weight for LSD of only .05 milligrams. The 8th Circuit upheld the district court’s use of the lightest known weight. Application note 11 to section 2D1.1 cautions that it should only be used when a more reliable estimate of weight is unavailable. While there may be situations where a sample is too small or too arbitrary to extrapolate fairly over a large number of dosage units that come from disparate sources, this was not such a case. Senior Judge Heaney dissented. U.S. v. Martz, 964 F.2d 787 (8th Cir. 1992).
8th Circuit rejects drug calculation which relied on testimony of unreliable witness. (254) The 8th Circuit reversed the district court’s determination of drug quantity because it appeared to be based upon the testimony of an unreliable witness. The court relied upon the computation in defendant’s presentence report, however, the presentence report merely contained the vague statement that “information was developed at trial through witness testimony that [defendant’s] organization distributed at least 491.1 grams of crack cocaine.” In order to reach the 491.1 gram figure, the presentence report would have to have considered an interview with one witness who proved to be inherently unreliable. This witness lied about drug tests which were administered to her while on probation. She also admitted that her drug use caused memory impairment, and her testimony indicated that she did not clearly remember the number of occasions on which she had purchased drugs from defendant. Thus, this witness’ testimony lacked sufficient indicia of reliability to serve as a basis for calculating the quantity of cocaine base properly attributable to defendant. U.S. v. Simmons, 964 F.2d 763 (8th Cir. 1992).
8th Circuit upholds conversion of cash into drug quantity. (254) A witness testified that he saw defendant and her husband counting $10,000 to $20,000 and speculated that it was drug proceeds. The 8th Circuit upheld the district court’s conversion of the cash into 448 grams of methamphetamine for sentencing purposes. The court rejected defendant’s claim that there was insufficient evidence to establish that the money was drug money she had “earned.” U.S. v. Haren, 952 F.2d 190 (8th Cir. 1991).
8th Circuit affirms drug calculation. (254) The 8th Circuit rejected defendant’s claim that the district court improperly determined that he had been involved with at least 2 kilograms (about 4.4 pounds) of amphetamine. Testimony revealed that defendant often dealt in ounce and half-ounce amounts, sometimes received half-pound amounts, and once received two pounds from a co-defendant. U.S. v. Haren, 952 F.2d 190 (8th Cir. 1991).
8th Circuit upholds conversion of cash and assets into crack cocaine. (254) For purposes of determining defendant’s base offense level, the district court converted various assets and cash related to drug activity into quantities of crack cocaine. The government used a $100 per gram street value. In U.S. v. Owens, 904 F.2d 411 (8th Cir. 1990), the 8th Circuit held that where it is unclear which different drugs are involved, the court should use the drug conversion which yields the most favorable result for defendant. Here the 8th Circuit upheld the conversion of cash and assets into crack cocaine. Although there was evidence that the leader of the conspiracy dealt with other drugs before the co-conspirators joined her, there was no evidence that defendant dealt in anything but crack once the conspiracy began. U.S. v. Watts, 950 F.2d 508 (8th Cir. 1991).
8th Circuit affirms calculating drug quantity by random selection of samples. (254) Defendant challenged the district court’s ruling that he was involved with in excess of 50 grams of cocaine base, since the government tested only 43 of the 87.2 grams seized from defendant’s two houses for cocaine. The remaining substance was merely weighed. The 8th Circuit rejected the argument that the government was required to test all of the seized substance. The government chemist randomly selected and analyzed approximately 43 grams of the seized substance, all of which tested positive for the presence of cocaine base. Testimony indicated that the untested substance appeared to be cocaine base. This was sufficient to support the district court’s findings. U.S. v. Johnson, 944 F.2d 396 (8th Cir. 1991)
8th Circuit upholds consideration of sales reflected in defendant’s drug records. (254) Defendant challenged the district court’s consideration of the amount of methamphetamine sales reflected in her drug records. She contended that the government failed to prove the records were notes of drug sales and that even if some of the records did reflect drug sales, not all of the notes should be found to be drug sales. The 8th Circuit upheld the consideration of all of the drug sales reflected in the records. Evidence at trial supported the government’s contention that the records seized from defendant’s house were of her drug business. One witness testified that when he purchased methamphetamine from defendant on credit she would write his name down and the amount he owed her. He recognized his name as well as the name of several other individuals in her notes. In addition, a police officer gave his expert opinion that the notes were drug records. It was reasonable for the district court to infer that all of the figures in the notes reflected drug sales. U.S. v. Carper, 942 F.2d 1298 (8th Cir. 1991).
8th Circuit affirms drug estimation based upon kilogram wrappers containing trace amounts of cocaine. (254) Defendant disputed the district court’s finding that he distributed three more kilograms of cocaine than the one kilogram he admitted distributing. The district court relied upon three “kilogram cocaine wrappers” found in his home and business. The wrappers contained trace amounts of cocaine residue. The 8th Circuit affirmed the district court’s calculation, finding it “not mere conjecture to assume a kilogram wrapper with trace amounts of cocaine on it at one time actually contained a kilogram of cocaine.” The wrappers are the kind of evidence that the guidelines permit a sentencing court to use to estimate drug quantities. U.S. v. Eberspacher, 936 F.2d 387 (8th Cir. 1991).
8th Circuit upholds calculation of drug weight based upon police officer’s visual estimate. (254) While being pursued by police, defendant threw two bags containing cocaine out of the car window. One of the bags burst and cocaine scattered over the street. Approximately 449 grams of cocaine was eventually seized. A police officer testified that the cocaine that was too small or powdered to be retrieved covered an area 4 to 5 feet by 40 yards, and that in the officer’s opinion at least 100 grams remained on the street. The 8th Circuit upheld the district court’s decision to sentence defendant on the basis of over 500 grams of cocaine. The officer’s estimate was “exactly the type required when a defendant’s own conduct makes precise measurement difficult, if not impossible, to accomplish.” Moreover, defendant presented no evidence to contradict the officer’s testimony. U.S. v. Angulo, 927 F.2d 202 (5th Cir. 1991).
8th Circuit upholds estimating quantity of drugs based upon amount of cash seized. (254) The district court determined that $112,867 seized was the monetary equivalent of 940 grams of crack, in light of testimony that crack was routinely sold for $120 per gram. Adding 940 grams to the 233.88 grams of drug seized, the district court determined that the conspiracy involved the distribution of 1,173.88 grams of cocaine base. The 8th Circuit upheld the calculation. The commentary to guideline § 2D1.4 suggests that where the amount seized does not reflect the scale of the offense, the sentencing judge may approximate the quantity, and may consider the price generally obtained for the substance. U.S. v. Stephenson, 924 F.2d 753 (8th Cir. 1991).
8th Circuit upholds approximation of drug quantity. (254) A co-conspirator testified that he “fronted,” to defendant’s intermediary, between two and four kilograms of cocaine. The district court “split the difference,” and determined that defendant was responsible for three kilograms. The 8th Circuit rejected defendant’s argument that this approximation violated due process. Guideline § 2D1.4 permits a district court to approximate the amount of cocaine involved. The court refused to determine whether simply “splitting the difference” was so arbitrary and standardless a method as to violate due process, since defendant’s sentence would have been the same even if the district court determined only two kilograms were involved. U.S. v. Frondle, 918 F.2d 62 (8th Cir. 1990).
8th Circuit reverses district court’s estimate of amount of cocaine distributed. (254) Defendant admitted purchasing approximately one pound of cocaine over an eight-year period. Because the marijuana conspiracy charge to which he pled guilty covered half of that period, the district court credited defendant with half of that quantity. The 8th Circuit reversed, ruling that the district court’s method of approximating the unseized, uncharged amounts of cocaine was arbitrary and not supported by a preponderance of the evidence. There was no direct or circumstantial evidence that defendant distributed the cocaine during the period of his marijuana conspiracy. U.S. v. Lawrence, 915 F.2d 402 (8th Cir. 1990).
9th Circuit finds no reversible error in number of prescription pills sold by conspiracy. (254) At defendant’s trial and sentencing hearing, testimony established that the conspiracy to sell prescription drug tablets began in 2007. Several witnesses testified that they began selling a few pills a day and eventually sold between 50 to 100 pills a day. One witness testified that she sold hundreds of pills a day, and another testified that he sold about 1,000 pills per day. The presentence report estimated that the conspiracy sold between 1,000 and 1,500 pills per day. At sentencing, the district court estimated that the conspiracy sold 500 pills per day. The marijuana equivalent of that amount is well over the amount that triggers the maximum offense level under the guidelines. The Ninth Circuit found that the evidence did not support the district court’s finding that the conspiracy began in 2007 but that any error in the court’s calculation of the conspiracy’s start date was harmless. U.S. v. Flores, 725 F.3d 1028 (9th Cir. 2013).
9th Circuit discourages use of “theoretical maximum yield” in calculating drug quantity. (254) At defendant’s sentencing for conspiracy to manufacture ecstasy, the government presented evidence of the “theoretical maximum yield” of ecstasy that defendant and his coconspirators could have produced. The district court relied in part on this evidence to set defendant’s offense level. The Ninth Circuit reaffirmed that use of a “theoretical maximum yield” analysis to determine the quantity of a drug was “discouraged,” and remanded for a recalculation of the quantity. U.S. v. Forrester, 616 F.3d 929 (9th Cir. 2010).
9th Circuit holds drugs seized in unrelated case may not be used to estimate drug’s weight. (254) Defendant was convicted of conspiracy to sell 7,000 tablets of a designer drug called Foxy, although no Foxy was seized during the investigation. To estimate the weight of the Foxy, the district court relied on the weight of tablets of that drug seized in unrelated cases. The Ninth Circuit held that in the absence of any evidence that Foxy tablets are always the same approximate size, the district court’s method of determining the tablets’ weight was insufficiently reliable. U.S. v. Kilby, 443 F.3d 1135 (9th Cir. 2006).
9th Circuit finds evidence insufficient to show that defendant intended to distribute all drugs in his possession. (254) In U.S. v. Kipp, 10 F.3d 1463, 1466 (9th Cir. 1993), the court held that a sentence imposed for possession of drugs with intent to distribute must be based only on those drugs that defendant intended to distribute, and not those intended for personal use. At defendant’s sentencing, the district court found that defendant intended to distribute all the drugs he possessed based on the jury’s verdict finding defendant guilty of possession with intent to distribute, defendant’s possession of a scale, a gun, and pay/owe sheets, and expert testimony that the weight and amount of drugs, when combined with the other indicia of drug dealing, showed that the drugs were not possessed for personal use. The Ninth Circuit held that this evidence was insufficient to show that all defendant’s drugs were possessed for distribution in light of other evidence that defendant was a drug addict. U.S. v. Gonzales, 307 F.3d 906 (9th Cir. 2002).
9th Circuit requires court to “err on the side of caution” in estimating drug quantity. (254) The Ninth Circuit agreed with U.S. v. Shonubi, 103 F.3d 1085, 1088 (2d Cir. 1997) that the guidelines’ requirement to punish unconvicted relevant conduct at precisely the same degree of severity as convicted conduct is “extraordinary and totally unprecedented.” The panel said that this obliges courts to “proceed carefully” in determining whether the relevant conduct has been proven, and may require “clear and convincing evidence” when an enhancement based on uncharged conduct “has an extremely disproportionate effect on the length of a defendant’s sentence.” U.S. v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000), vacated, Valensia v. U.S., 532 U.S. 901 (2001). Because approximations of drug quantities are by their nature imprecise, “a sentencing judge must err on the side of caution.” U.S. v. August, 86 F.3d 151, 154 (9th Cir. 1996). Moreover, where, as in this case, a drug quantity is arrived at in a manner that is inherently imprecise, the district court must consider the “margin of error” before finally fixing the amount attributable to the defendant. Because the district court failed to follow these governing principles here, the sentence was reversed. U.S. v. Scheele, 231 F.3d 492 (9th Cir. 2000).
9th Circuit affirms converting powder cocaine to crack for sentencing purposes. (254) Following decisions in the Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits, the Ninth Circuit affirmed the conversion of powder cocaine to crack cocaine for sentencing purposes when the object of the conspiracy involved the conversion or the conversion was foreseeable. In sentencing a person convicted of a drug-related conspiracy, the sentencing court must determine the quantity and type of drugs which were the object of the conspiracy. See Application Note 12 to § 2D1.1. In this case, it was clear that the object of the conspiracy was crack cocaine, not powder cocaine. At sentencing, an officer testified that in a laboratory conversion, there is a weight loss of 10%, and this was sufficient to satisfy the government’s burden. U.S. v. Fox, 189 F.3d 1115 (9th Cir. 1999).
9th Circuit reverses where estimate of conspiracy’s weekly sales was based on unreliable evidence. (254) The Ninth Circuit found that the district court’s estimate of the conspiracy’s weekly sales was supported only by “unexplained conclusions drawn from unrevealed out-of-court statements.” A case agent testified that as a result of interviewing the “principal middle person” for the organization, “we determined that cocaine was being sold anywhere from two to three ounces a week from the [middle person’s] residence[,] [i]n addition to one or two ounces of heroin.” It was error for the court to rely solely on this conclusory testimony. The court should have required the government to disclose the information supporting the estimates and justify its reliability. The error was not harmless and the case was remanded for resentencing. U.S. v. Garcia-Sanchez, 189 F.3d 1143 (9th Cir. 1999).
9th Circuit uses purity of drugs seized to estimate the purity of the remainder. (254) Defendant conspired to sell 6.8 kilograms of methamphetamine. He displayed half of the negotiated amount and promised to deliver the entire 6.8 kilograms the following day. The police arrested him during the transaction and seized 3.2 kilograms, of which about 2.62 kilograms was pure methamphetamine. The Ninth Circuit held that the district court properly used the purity of the drugs actually seized to estimate the purity of the total quantity of drugs the defendant agreed to deliver. Thus, the district court was entitled to assume that the remaining 3.6 kilograms would be 80% pure methamphetamine and that the full 6.8 kilograms would contain about 5.5 kilograms of pure methamphetamine. This is in accord with the Seventh and Eighth Circuits in U.S. v. Jarrett, 133 F.3d 519, 529-31 (7th Cir. 1998) and U.S. v. Newton, 31 F.3d 611, 614 (8th Cir. 1994). The defendant may escape this presumption by proving that he never intended to deliver or was incapable of delivering the agreed-upon amount. But no such proof was offered here. U.S. v. Lopes-Montes, 165 F.3d 730 (9th Cir. 1999).
9th Circuit holds amendment on negotiated amounts was “substantive” and therefore not retroactive. (254) After defendant’s conviction became final, the Commission adopted amendment 518, which amended former application note 1 to § 2D1.4, which said “where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude [that amount].” This language was put into a new application note 12 to § 2D1.1 but the word and was changed to or.” The Ninth Circuit held that this was a “substantive” change in the commentary rather than a “clarification.” Therefore, this part of amendment 518 was substantive, and thus not retroactive even though an earlier case, U.S. v. Felix, 87 F.3d 1057 (9th Cir. 1996) held that a different part of amendment 518 was a retroactive “clarifying amendment.” The present case was a collateral attack on defendant’s sentence, and the court noted that its ruling meant that there was “no need for us to reach the issue of whether a clarifying amendment is retroactively applicable on collateral review.” U.S. v. Cruz-Mendoza, 147 F.3d 1069 (9th Cir. 1998), amended, 163 F.3d 1149 (9th Cir. 1998).
9th Circuit reverses district court’s drug quantity finding as clearly erroneous. (254) Two defendants were arrested in a hotel room. One had 7.8 grams of heroin in a condom in his alimentary canal, and the room contained 46 empty condoms that had been passed through some person’s digestive system. The second defendant told the officers that it had taken the first defendant two days to swallow the contents of his alimentary canal. Nevertheless, the district court based the sentence on only 7.8 grams of heroin. The government appealed, and the Ninth Circuit reversed, finding the district court’s factual finding was clearly erroneous. The second defendant’s statement was substantial evidence that more than 7.8 grams of heroin was involved. This could be used against the other defendant because it was (1) reliable, (2) against the second defendant’s interest, and (3) corroborated by the physical evidence. “Some substantial volume of heroin above 7.8 grams would appear to be unavoidable, given [the second defendant’s] statements to the effect that he had supervised two days of swallowing and the collection of 46 or 47 condoms containing the merchandise.” Judge Pregerson dissented. U.S. v. Asagba, 77 F.3d 324 (9th Cir. 1996).
9th Circuit upholds district court’s estimate of drug quantity. (254) The district court found that “roughly seventeen” kilograms of cocaine were attributable to defendant. This conclusion was based on several paragraphs of the presentence report summarizing the trial testimony of various witnesses. The Ninth Circuit upheld the district court’s decision to credit the witnesses’ testimony. The court did not double count transactions and made a very conservative estimate of drug quantity. It was also proper for the court to rely on a witness’s trial testimony under oath even though her pretrial statement indicated the transaction involved a smaller amount. U.S. v. Vought, 69 F.3d 1498 (9th Cir. 1995).
9th Circuit upholds basing conspirator’s sentence on quantities in drug ledger. (254) The drug ledgers listed 59 kilograms of cocaine, but only 71 kilograms was seized. Defendant argued that it was error for the court to rely on the ledgers “some of which wee never identified as to authorship, and none of which directly implicated [defendant] other than by supposition.” Judges Hawkins, Browning and D.W. Nelson said defendant’s argument had some “emotional appeal” because his codefendant was sentenced only for 71 kilograms. But the court nevertheless found the ledgers were sufficiently reliable to uphold the sentence. U.S. v. Gil, 58 F.3d 1414 (9th Cir. 1995).
9th Circuit says court need not impose mandatory minimum even though quantity is in indictment. (254) The district court ruled that because the conspiracy count specified mandatory minimum quantities of heroin and cocaine, it was not free to determine whether the drugs attributable to defendants were less than the amount necessary to trigger the mandatory minimum. The Ninth Circuit found that the sentencing court’s responsibility to determine the quantity of drugs attributable to a defendant is not altered by the fact that the amount involved in a drug conspiracy is specified in the indictment. The error was harmless as to the defendant who acknowledged he was aware of a co-conspirator’s possession of twenty kilos of cocaine. However, the error required reversal as to a second defendant who was apparently involved with substantially smaller amounts of a controlled substance. U.S. v. Castaneda, 9 F.3d 761 (9th Cir. 1994).
9th Circuit rejects converting cash into drugs where no connection shown. (254) Defendant sold 25 grams of heroin to a government informant. Agents who later executed a search warrant on his residence found him flushing the toilet; balloons containing 3.49 grams of heroin were on the floor around the toilet. Also found in the apartment were 1.67 grams of cocaine, drug records, two guns and $1,541 in cash. The district court converted the $1,541 into 14 grams of heroin, and ruled that defendant was responsible for 42.49 grams of heroin. The 9th Circuit reversed, noting that although other courts have relied upon application note 2 to guideline section 2D1.4 to approve the conversion of cash into its equivalent in drugs, in each of these cases, there was evidence of a connection between the money seized and a drug transaction. Here, there was no evidence connecting the $1,541 to drug related activities. Moreover, the probation officer specifically found defendant responsible only for the drugs he sold and possessed. The additional drugs could not be based upon heroin which the government speculated was flushed down his toilet, since there was no evidence that defendant flushed a particular amount of heroin. U.S. v. Gonzalez-Sanchez, 953 F.2d 1184 (9th Cir. 1992).
10th Circuit reverses where court improperly adopted PSR’s drug quantity finding. (254) Defendant was convicted of conspiring to manufacture and distribute 50 grams or more of methamphetamine. On appeal, defendant argued that the court improperly adopted the PSR’s finding that she was responsible for more than 1.5 kilograms of meth, and the Tenth Circuit agreed. When defendant challenged the drug-quantity calculation in the PSR, the district court did not require the government to put on evidence supporting the calculation, stating that the PSR was based on trial testimony. However, this statement was inaccurate, and the government conceded this at oral argument. The error was not harmless because the trial evidence would not compel a finding of at least 1.5 kilograms of methamphetamine. Some of the evidence indicated defendant’s involvement with meth, but was unhelpful as to quantity. Other trial evidence did speak of quantities, but the quantities were not precise, and extrapolation would be required to reach 1.5 kilograms of meth. U.S. v. Harrison, 743 F.3d 760 (10th Cir. 2014).
10th Circuit upholds reliance on lab report to determine weight of methamphetamine. (254) Defendant contended that the district court erred in relying on the government’s lab reports to determine the weight of the methamphetamine that was seized. He argued that his expert, Dr. Lott, found the procedures used by the lab to weigh the evidence were unreliable. The Tenth Circuit ruled that the district court did not err in finding the lab report reliable. As Lott’s report explains, some of the irregularities in the way the meth was weighed was due to the fact that the evidence was initially analyzed for a state trial. When the trial was moved to federal court, it was necessary to reweigh the evidence for the percentage purity to get the actual weight of the meth. It appeared from Lott’s report that the actual weight of the meth was not necessary for the state trial. Thus, different data was required for the state trial versus the federal trial, thereby accounting for many of the “irregularities” cited by the defense. Further, Lott’s report stated that although parts of the procedure followed by the lab were not the most desirable approach, it was understandable why the procedure was used “since the amount of material was small.” Nowhere in the report did Lott state that the tests used by the lab were unreliable or that the drug quantity would be different if alternative procedures had been followed. U.S. v. Ryan, 236 F.3d 1268 (10th Cir. 2001).
10th Circuit holds that any error in calculating methamphetamine quantity was harmless. (254) The district court set defendant’s offense level at 34, applicable for any quantity of methamphetamine between three and ten kilograms. Defendant admitted responsibility for 2,773.75 grams of meth. Given the amount of drugs that defendant did not challenge, the Tenth Circuit held that any error in the court’s drug quantity calculation was harmless. The remaining evidence clearly supported an estimate of at least one additional pound. At trial, a witness had testified that she could not recall the exact amount involved in a July 4, 1997 transaction, but that she did recall that on or near that date a large group of people came to the house and went into one of the bedrooms. She went into the room after they had left and saw foil wrapped packages, one of which was opened and appeared to contain meth. She also said that a co-conspirator told her that it was “crank,” a slang term for methamphetamine, and “[t]hat it was a lot in terms of pounds.” The unchallenged evidence, plus one pound attributed to the July 4 transaction, was sufficient to establish a threshold quantity of three kilograms. U.S. v. Humphrey, 208 F.3d 1190 (10th Cir. 2000).
10th Circuit upholds reliance on defendant’s initial drug quantity admission. (254) At the time of her arrest, defendant told police she had received between two and four ounces of methamphetamine per month beginning in May 1997 and continuing until January 1998. At sentencing, defendant recanted that story, alleging her prior statements were made under duress, and alleging a much small drug quantity. The district court found that defendant’s initial statement to police was more credible than her testimony at sentencing, and her earlier statement was corroborated by her supplier’s testimony at the hearing. The Tenth Circuit agreed that defendant’s initial statement, the supplier’s testimony, and the drug ledgers were more than sufficient evidence to support the district court’s conclusion that defendant received an average of two ounces (57.7 grams) of meth every two weeks for eight months and on occasion received larger quantities. The quantity of meth in these transactions totaled at least 1000 grams. U.S. v. Asch, 207 F.3d 1238 (10th Cir. 2000).
10th Circuit upholds co‑conspirator’s estimate where there was ample corroborating evidence. (254) In finding defendant accountable for more than 20 kilograms of crack, the district court relied on an FBI agent’s testimony that defendant distributed between 20 and 50 kilograms of crack cocaine. He based this estimate on a co‑conspirator’s statement that she and another conspirator personally distributed 20 kilograms of crack cocaine that they had received from defendant, and that additional amounts defendant distributed through others approached 30 kilograms. Defendant argued that the estimate lacked sufficient indicia or reliability. The Tenth Circuit upheld the estimate, finding ample corroborating evidence. The ideal method for proving drug quantity is an estimate from a credible, identified witness, plus concrete evidence that a reviewing court can use to reconstruct the factual basis for the estimate. Here, several witnesses stated that 12‑15 individuals sold between one and three ounces of crack per week for defendant for three years. This clearly supported the 30‑kilogram estimate. U.S. v. Ivy, 83 F.3d 1266 (10th Cir. 1996).
10th Circuit bases drug quantity on defendant’s statement that conspirators planned to harvest 2000 pounds of marijuana. (254) The court found defendant accountable for 2000 pounds of marijuana based on her statement to officials that she and her co‑conspirators had planned to harvest 2000 pounds of marijuana for distribution but were thwarted by police prior to reaching that goal. The Tenth Circuit found no error in relying on defendant’s own estimate of the 2000 pound goal of the conspiracy. Because defendant was the person responsible for keeping the operation’s records, her statements as to drug quantity were particularly reliable in forecasting the total amount of the harvest. Moreover, even without defendant’s statement, the evidence supported the 2000 pound estimate. Defendant’s record notebook, the size of the farm, the number of marijuana plants seized from the farm, the number of conspirators involved, and the large quantities of processed marijuana seized all supported the court’s estimate. U.S. v. Wacker, 72 F.3d 1453 (10th Cir. 1995).
10th Circuit relies on estimate in finding defendant accountable for 1.5 kilos of cocaine base. (254) Defendant challenged the court’s finding that he was responsible for 6.9 kilograms of cocaine base. The government argued that any error was harmless, since his base offense level would be the same provided at least 1.5 kilograms of cocaine base were attributable to him. The Tenth Circuit affirmed since the total amount defendant actually handled or dealt combined with the estimated amount attributable to him clearly exceeded 1.5 kilograms. Defendant was personally involved with at least four half-kilogram shipments, although at least one involved only cocaine powder. However, he also served as an intermediary between the conspiracy’s supplier and another dealer for over two years. A significant part of the amount involved was cocaine base rather than cocaine powder because the organization sold only cocaine base. U.S. v. Owens, 70 F.3d 1118 (10th Cir. 1995).
10th Circuit relies on estimate of witness who helped defendant package one of three marijuana loads. (254) The district court estimated that defendant was responsible for 210 pounds of marijuana. The Tenth Circuit held that the estimate had the minimum indicia of trustworthiness sufficient to support its use. The estimate was based on one witness’s testimony that defendant helped transport or package three carloads of marijuana, each containing about 70 pounds. The witness testified that he helped package one of these loads with defendant and that it was 70 pounds. He also testified that the car normally carried 70 pounds, and that he had previously helped package another load (before defendant’s involvement) and that it was 70 pounds. The judge found this testimony credible. U.S. v. Nieto, 60 F.3d 1464 (10th Cir. 1995).
10th Circuit uses notes of sales and amount of cash and drugs recovered to estimate quantity. (254) Police found drug paraphernalia, drugs, cash, weapons and a notebook alleged to be a drug ledger at defendant’s house. The Tenth Circuit held that the district court’s drug quantity calculation was supported by a preponderance of the evidence. The estimate was based on the notes, the amount of cash found and the actual drugs recovered. The government showed that the notebook’s notations were records of drug sales. U.S. v. Verners, 53 F.3d 291 (10th Cir. 1995).
10th Circuit says drug estimate was based on reliable information. (254) Defendant challenged the district court’s estimate of the quantity of drugs attributable to him. The Tenth Circuit approved the estimate, finding that it was based on reliable information. First, the estimate could exceed the amount alleged in the indictment, because a sentencing court may look beyond the indictment. Second, estimates are acceptable, provided they are based on information that carries a minimum indicia of reliability. At sentencing, a conspirator testified that defendant stated he went to California every five to six weeks and picked up five to six pounds of drugs. The trial judge found this testimony to be a “truthful account.” The testimony was corroborated by telephone toll records, body mike conversations, and tape-recorded phone calls collected by the government. U.S. v. Earls, 42 F.3d 1321 (10th Cir. 1994).
10th Circuit finds witness’s testimony too vague to support 80 gram estimate. (254) At sentencing, a government witness testified that she regularly purchased heroin from defendant from January to April, 1991. The 10th Circuit found this testimony was not sufficiently reliable to support the finding that 80 grams of heroin were involved in these sales. Although the witness testified as to the weekly sales of heroin, her testimony was “extremely vague” as to quantities. She testified that amounts varied from week to week, sometimes one or two grams and sometimes four or five. She also testified that the DEA agents essentially came up with an “estimate” or “guess” of 80 grams, on the assumption that she purchased five grams per week for 16 weeks. Her testimony concerning drug quantity was “flatly contradictory,” and no other corroborating evidence was presented. U.S. v. Richards, 27 F.3d 465 (10th Cir. 1994).
10th Circuit approves conversion of cash into drugs. (254) The 10th Circuit held that where cash is seized and the amount of drugs seized does not reflect the scale of the offense, the sentencing court may estimate the quantity of drugs by converting cash to its drug equivalent, provided the court finds by a preponderance that the cash is attributable to drug sales which were part of the same course of conduct as the conviction count. Here, the district court could conclude that $14,920 found in one paper bag was the result of defendant’s drug trafficking activities. Defendant asked his girlfriend to pick up the bag from the house where he conducted his drug sales. There was also support for converting $31,600 from an envelope found in the girlfriend’s apartment. The girlfriend testified that the money was not hers, and that no one other than herself, her children and defendant had access to the apartment. She was with defendant when he purchased the envelope. Defendant had no apparent source for the money other than drug trafficking. U.S. v. Rios, 22 F.3d 1024 (10th Cir. 1994).
10th Circuit says evidence did not support 60-pound determination. (254) The 10th Circuit ruled that the evidence did not support the district court’s finding that defendant distributed 60 pounds of methamphetamine. Sixty pounds is 960 ounces, and defendant stated that he rarely fronted more than an ounce at a time, and often only an eighth or a quarter ounce because of the difficulty collecting money. At his wholesale price of $1,000 an ounce, the drug ledgers seized reflected only 15 ounces of methamphetamine. One of defendant’s biggest customers testified she received between one-quarter and one-half pound of methamphetamine during the conspiracy, and other customers testified they received smaller quantities. Because drug quantity is such a critical factor in a defendant’s sentence, it cannot be grounded “in midair.” The case was remanded for an evidentiary hearing on drug quantity. U.S. v. Roberts, 14 F.3d 502 (10th Cir. 1993).
10th Circuit finds extrapolation from witness’s statement insufficient for drug quantity. (254) The district court found that defendant was responsible for 39 ounces of methamphetamine based on the government’s extrapolation from one witness’s statement that defendant received one ounce of methamphetamine every two weeks for a year and a half. The 10th Circuit rejected this conclusion, since there was independent corroboration of only a small portion of the 39 ounces attributed to defendant. One co-defendant’s statement that defendant was the best hand he had, who always paid her bills, was ambiguous at best and non-probative at worst. U.S. v. Roberts, 14 F.3d 502 (10th Cir. 1993).
10th Circuit finds evidence used for drug quantity estimate had minimum indicia of reliability. (254) The 10th Circuit held that the evidence the district court relied upon to make a drug quantity determination had a minimum indicia of reliability. The determination was based on the probation officer’s estimates of the drugs involved in defendant’s offenses, evidence presented by an FBI agent, and the testimony of one of defendant’s former suppliers. U.S. v. Roederer, 11 F.3d 973 (10th Cir. 1993).
10th Circuit upholds quantity estimate but advises explicit findings. (254) Defendant objected that the district court erred by sentencing her based on an estimated drug quantity though the court had not labeled the quantity as an estimate. The 10th Circuit rejected the argument, finding the estimate was supported by a lab report in the record. It suggested, however, that courts should generally make a specific finding as to the quantity of drugs seized and an explicit estimate if the seized quantity does not reflect the severity of the offense. U.S. v. Wagner, 994 F.2d 1467 (10th Cir. 1993), superseded on other grounds by statute as stated in U.S. v. Smith, 433 F.3d 714 (10th Cir. 2006).
10th Circuit rejects agent’s estimate of “average” drug shipment. (254) While defendant was shown to have participated in two drug shipments, no direct evidence indicated the size of those shipments. The district court calculated their size by relying on a government agent’s testimony that shipments from El Paso to Oklahoma City “average” between sixty and 100 pounds; the court used the sixty-pound figure. The 10th Circuit concluded that the finding was clearly erroneous. Though estimates of drug quantity have been upheld in the past, in all those cases, the estimate “had some basis of support in the facts of the particular case.” U.S. v. Garcia, 994 F.2d 1499 (10th Cir. 1993).
10th Circuit affirms determination of marijuana’s net weight based upon estimate by case agent. (254) Defendant was arrested after accepting from an undercover agent three suitcases filled with marijuana. The actual net amount of marijuana was never weighed by the government and the amount used for sentencing was based on an estimate of the weight, attributing eight percent of the gross weight of 100 pounds to packaging. The 10th Circuit found no abuse of discretion in basing the net of the marijuana on the estimate of the case agent. There was testimony by the case agent that he weighed the packaged marijuana in the suitcases and that it weighed 100 pounds. Contrary to U.S. Customs practice, the agent calculated eight percent as packaging rather than five to give the defendant the benefit of the doubt since some of the marijuana was packaged in cellophane and some in heavier contact paper. The agent’s estimate was based on his experience with the weights of different types of packaging. U.S. v. Clonts, 966 F.2d 1366 (10th Cir. 1992).
10th Circuit upholds estimating drug quantity based upon testimony of government witness. (254) Defendant argued that the court erred by basing its ruling that he was involved with 500 grams of crack cocaine upon the “speculative and inherently unreliable testimony” of a government witness. The witness testified that defendant and his co-conspirators were awaiting a shipment of approximately five kilograms of crack cocaine and heroin. The 10th Circuit upheld the district court’s ruling since it was supported by testimony other than the disputed testimony. The same government witness also testified that he and defendant had transported “about half a kilo or 18 ounces each time” of crack and that they made about four trips. Any half kilogram, or 500 gram amount, could have satisfied the weight requirement for a base offense level of 36. “Though an estimate, this testimony about the shipments in general comprised the type of evidence of historical transactions that is not inherently unreliable.” The trial judge specifically found the witness to be credible and reliable. U.S. v. Coleman, 947 F.2d 1424 (10th Cir. 1991).
10th Circuit upholds estimate of drug quantity. (254) Defendant contended that the district court erred in accepting the calculations of the probation officer as to the amount of drugs involved in his offense. The 10th Circuit upheld the calculation. The probation officer stated that two persons interviewed by the government had admitted purchasing drugs from defendant on many occasions. Each individual estimated that he had purchased two pounds of methamphetamine from defendant. The probation officer had used these estimated quantities and added the amount seized from defendant at the time of his arrest to arrive at the quantity listed in the presentence report. The 10th Circuit found that even though the quantity was based upon estimates, it was established by a preponderance of the evidence. The district court’s finding was not clearly erroneous. U.S. v. Easterling, 921 F.2d 1073 (10th Cir. 1990).
10th Circuit finds that district court underestimated quantity of drugs involved in conspiracy. (254) Defendant was convicted of conspiracy to distribute cocaine and maintain a place for drug distribution. The district court, on the basis of a testimony that at least one ounce of cocaine was processed into rock crack and sold by defendant over a 21-day period, determined that 593.35 grams of cocaine were sold by defendant. The 10th Circuit found that the district court’s method of estimation, calculating the amount of cocaine sold by the defendant and others during the course of the conspiracy, was incomplete, because it did not consider the cocaine seized from the defendant plus the amount the defendant purchased. Although adding this amount did not change defendant’s base offense level, on remand, the district court was instructed to append its amended findings concerning the quantity to the presentence report. U.S. v. Reid, 911 F.2d 1456 (10th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Cruz Camacho, 137 F.3d 1220 (10th Cir. 1998).
10th Circuit upholds estimating weight of unrecovered LSD based on weight of lightest recovered unit. (254) The district court estimated the weight of unrecovered LSD units by basing it on the weight of the lightest recovered unit. The 8th Circuit rejected defendant’s argument that the dosage equivalency table should have been used, noting the table merely facilitates the application of guideline § 2D1.1 and the guidelines do not require the table’s use. Since all the units were obtained from the same source at the same time, the unrecovered units would have weighed at least as much as the lightest unit and therefore the district court’s estimation was correct. U.S. v. Bishop, 890 F.2d 212 (10th Cir. 1989).
11th Circuit upholds inference that previous package delivered to defendant contained heroin. (254) Federal agents performed a controlled delivery to defendant of a package of heroin from Colombia. After the agents arrested defendant, he told them that he was to be paid $1,000 to receive the package for Salgado. Defendant also admitted that he received a previous package from Colombia for Salgado, and received $1,300 for accepting it. Salgado later admitted to agents that he expected to be paid $5,000 to receive the package, and also stated that he received a package on a previous occasion for which he was paid a little less than $5,000. Because defendant and Salgado were paid similar amounts for both packages, the district court found the first package contained at least 215 grams of heroin, which was less than half the 485.68 grams of heroin in the second package. The Eleventh Circuit rejected defendant’s argument that it was speculative for the court to presume that the first package contained heroin. Defendant received two packages from Colombia about four weeks apart, both packages were to go to Salgado, and both defendant and Salgado were to be paid similarly for receiving the parcels. While it was plausible that the first package was a dry run and contained no contraband, because the fact pattern gave rise to two reasonable and different constructions, the district court’s choice between them could not be clearly erroneous. U.S. v. Almedina, 686 F.3d 1312 (11th Cir. 2012).
11th Circuit finds inference that cash came from drug trafficking was not speculative. (254) During a search of defendant’s house, officers found $17,500 in cash, and a receipt showing that defendant had paid over $15,000 in cash for a car. The court found that there was no plausible source of income available to defendant apart from his admitted participation in a drug conspiracy and that he was the source of the methamphetamine (27.7 grams) involved in a controlled drug purchase. The district court inferred that the cash constituted proceeds from trafficking in meth, and found that the cash proceeds represented the sale of over 1000 grams of meth. The Eleventh Circuit upheld the court’s inference that defendant’s cash was derived from dealing in methamphetamine. Defendant admitted his involvement in the charged conspiracy, and the only remaining issue was the level or degree of his participation. He was found to have possessed large sums of currency with no apparent explanation of its origin, and there was evidence that he was one of the sources of the meth involved in the conspiracy. The court’s inference that the cash came from trafficking in methamphetamine was not speculative. U.S. v. Chavez, 584 F.3d 1354 (11th Cir. 2009).
11th Circuit upholds drug quantity finding based on co-conspirator’s statement. (254) The district court found defendant accountable for between 50 and 150 kilograms of cocaine. This was based on a co-conspirator’s statement that he sold defendant two kilograms a week during the time they knew each other. Defendant claimed the evidence only showed that he received two kilograms twice, for a total of four kilograms. The Eleventh Circuit affirmed. At sentencing, a government agent testified that the co-conspirator told him that during the time frame of the conspiracy, he supplied defendant with about 100 kilograms of cocaine, delivering five or six kilograms on a monthly basis. While defendant might doubt the veracity of the co-conspirator’s statements, he made no showing that the district court’s credibility assessment was clearly erroneous. U.S. v. Glinton, 154 F.3d 1245 (11th Cir. 1998).
11th Circuit rejects drug quantity estimate. (254) The Eleventh Circuit affirmed most of the district court’s estimates of the amount of crack cocaine attributed to defendants, but found insufficient evidence that 91 kilograms of crack supplied to the conspiracy from May until November 1991. Witnesses testified that they knew 32 kilograms were delivered by the suppliers. However, the extrapolation from 32 to 91 kilograms was based on one trial witness’s testimony that the suppliers provided drugs for the organization every three days during September and October 1991, and that twice the quantity delivered was 90 and 180 “50 packs.” From this alone the government concluded that these suppliers provided drugs at a constant weekly rate of 270 “50 packs” for the entire six month period, even though the organization had other suppliers as well until July 1991, and no evidence established a new rate of supply over a six-month period. This evidence was insufficient. Nevertheless, the error was harmless, because there was sufficient evidence to support defendants’ sentences. U.S. v. Brazel, 102 F.3d 1120 (11th Cir. 1997).
11th Circuit rejects double counting of cash and empty wrappers that did not show separate drug deals. (254) At a house owned by defendant, police found 111 pounds of marijuana packaged in 28 bricks, 89 empty plastic wrappers with marijuana residue, and $362,950 in cash. At sentencing, the district court found that the empty wrappers with marijuana residue and the cash did not represent a single marijuana transaction. Accordingly, the court extrapolated a quantity of drugs from the cash and from the empty wrappers to attribute 456 kilograms of marijuana to defendant. The Eleventh Circuit rejected the double counting of the drugs from the cash and from the empty wrappers because there was no evidence that the cash and the 89 marijuana wrappers came from separate transactions. It was just as reasonable to infer that the $362,950 was received as payment for the marijuana that had been in those 89 wrappers. U.S. v. Agis‑Meza, 99 F.3d 1052 (11th Cir. 1996).
11th Circuit converts money from drug sales into equivalent amount of drugs. (254) Defendant argued that the court erred in converting the $160,000 he laundered into a quantity of cocaine. The Eleventh Circuit held that money attributable to drug transactions may be converted into the equivalent amount of drugs for purposes of determining drug quantity. The evidence showed that defendant was involved in laundering drug money. It was reasonable for the district court to convert the laundered money to an equivalent amount of cocaine. The court was extremely cautious and found a higher conversion figure of $25,000 a fairer standard than the $20,000 conversion figure suggested in the PSR. U.S. v. Tokars, 95 F.3d 1520 (11th Cir. 1996).
11th Circuit rejects estimate for lack of showing of number of drug sales or amount per sale. (254) The jury found defendant responsible for 14.7 grams of cocaine base. The district court held him responsible at sentencing for between 35 and 50 grams based on a co‑conspirator’s testimony that he observed defendant selling cocaine on a daily basis, that defendant had more customers than anyone else at the apartment complex, and that defendant once told him he had made $1500 the previous evening. The Eleventh Circuit held that this testimony provided an insufficient basis for the court to estimate the quantity of drugs that defendant sold. It established only that defendant sold some cocaine base at the apartment complex. The district court made no findings, and there was no evidence regarding the number of sales during the period or the amount of cocaine base involved in each sale. Such evidence was a vital prerequisite. The co‑conspirator’s testimony also did not support two other drug quantity estimates for the same reasons. U.S. v. Frazier, 89 F.3d 1501 (11th Cir. 1996).
11th Circuit rejects estimate of defendants’ responsibility for crack house sales. (254) Defendants worked for an organization that sold crack cocaine around the clock from a crack house. During one four-hour period, videotaped surveillance recorded 66 drug transactions from the house. The district court estimated each defendant’s drug responsibility by assuming 66 transactions per day, and multiplying this by the weight of the average transaction in the area. Each defendant’s sentence was based on this number multiplied by the number of days the defendant was involved in the conspiracy. The Eleventh Circuit found the evidence insufficient to support these estimates. The PSRs contained no information about each defendants’ individual involvement, nor did they reveal the sources for much of the information they contained. The government’s proffers did not support the estimate since they were merely perfunctory summaries of the evidence the government was ready to present. The testimony at defendants’ plea hearing also did not support the estimate. Each defendant merely admitted that he distributed cocaine base in the vicinity of the crack house on the day in question. U.S. v. Lawrence, 47 F.3d 1559 (11th Cir. 1995).
11th Circuit remands for factual findings to support drug quantity determination. (254) A surveillance tape showed that during one four-hour period, 66 drug transactions took place at one residence. The probation officer used this tape to estimate that five drug conspirators were responsible for more than 500 grams of cocaine base. Each defendant objected. At four of the sentencing hearings, the court adopted the PSR without testimony or findings. At one hearing, the court heard testimony regarding that defendant’s role in the operation. The Eleventh Circuit remanded for factual findings to support the drug quantity determinations. The court made no findings as to the total quantity distributed by the conspiracy, nor what sales were reasonably foreseeable to four of the defendants. There was no evidence that the surveillance tape represented typical sales activity, as it was made on a Friday and thus a payday. Adoption of the PSR did not respond to defendants’ objections because the PSR did not directly address this issue. The PSR only established the cocaine base was available daily on an around-the-clock basis. U.S. v. Butler, 41 F.3d 1435 (11th Cir. 1995).
11th Circuit upholds estimate based on 300 of 8,000 monitored phone calls. (254) A law enforcement agent calculated that, in 300 of the approximately 8,000 telephone calls that were intercepted by authorities, defendants handled 14,280 grams of cocaine base. The district court held defendants accountable for in excess of 15,000 grams of cocaine base. The Eleventh Circuit approved the estimate. The district court could reasonably conclude that the conspirators discussed the distribution of 720 grams more of cocaine base during the remaining 7700 calls that were not considered by the agent. U.S. v. Green, 40 F.3d 1167 (11th Cir. 1994).
11th Circuit relies on sales during two-month period to estimate drugs in four-year conspiracy. (254) Drug records detailed the sale of 130 kilograms of marijuana to several customers over a two month period. The district court estimated that the four-year conspiracy involved at least 1000 kilograms of marijuana. Defendants argued that the district court improperly took the amount of drugs sold over the course of two months and projected this figure over a four-year period. The Eleventh Circuit upheld the estimate. Testimony established that defendants’ business was continuous over a span of four years, and the volume of sales remained consistent and substantial. Although the evidence suggested the amount of drugs reflected in the seized ledgers was not unusual, the court did not base its calculation on a presumption that defendants had sold 130 kilograms every two months for four years. Had it done so, the conspirators would have been sentenced on the basis of 3000 kilograms. U.S. v. Young, 39 F.3d 1561 (11th Cir. 1994).
11th Circuit upholds sentence based on entire quantity of cocaine to be decontaminated. (254) Defendants assisted a co-conspirator in decontaminating certain cocaine. Although a total of 50 kilograms were to be decontaminated, only 27 kilograms had been processed when defendants were arrested. The 11th Circuit affirmed that defendants’ sentences were properly based on the entire 50 kilograms to be decontaminated, rather than the amount actually decontaminated at the time of their arrest. The evidence established that the operation was ongoing and that defendants would continue until the entire 50 kilograms were processed. The district court found that defendants were “absolutely aware” that a minimum of 50 kilograms were involved. U.S. v. Freyre-Lazaro, 3 F.3d 1496 (11th Cir. 1993).
11th Circuit rejects estimate that more than five kilos of crack were sold on defendant’s premises. (254) The 11th Circuit rejected the district court’s conclusion that more than five kilograms of crack cocaine were sold from defendant’s premises. A DEA agent testified that a co-conspirator distributed 17.88 kilograms of cocaine, but the agent admitted that he did not know how much of this was distributed from defendant’s premises. The only evidence offered at trial was the testimony of a worker. She testified that she sold crack in defendant’s yard, but her testimony as to how much she sold in a day varied widely, from $3,000 to $30,000. Moreover, there was nothing in the record to aid the court in converting these dollar figures into quantity figures. There was also some question as to what quantity of cocaine was reasonably foreseeable to defendant, who, in exchange for the use of his yard and house, received only enough crack cocaine to support his own habit. U.S. v. Beasley, 2 F.3d 1551 (11th Cir. 1993).
11th Circuit bases offense level on drugs sold by dealer from whom agent sought bribe. (254) Defendant, a government agent, pled guilty to soliciting a bribe from a suspected drug dealer. Section 2C1.1(c)(1) provides that if the bribery was for the purpose of concealing or facilitating a crime, the court must use the “accessory after the fact” guideline (section 2X3.1) if that offense level is higher than the bribery guideline. At the sentencing hearing, the government presented “incontrovertible testimony” that the drug dealer was dealing 700 to 800 kilograms of cocaine a month. An Assistant U.S. Attorney said the dealer was believed to be involved in 1500 kilograms of cocaine. The 11th Circuit affirmed an offense level based on 1500 kilograms of cocaine. Since the district court could have supported defendant’s base offense level of 30 with only 50 kilograms of cocaine, defendant’s contention that he should not have been exposed to the maximum offense level under section 2X3.1 was without merit. U.S. v. Cruz, 946 F.2d 122 (11th Cir. 1991).
11th Circuit upholds drug quantity despite inconsistency between trial and grand jury testimony. (254) An informant testified that defendants had acquired two kilograms on a trip to Miami in November and three kilograms on a second trip to Miami in December. Defendants contended that the informant’s testimony was unreliable because he testified before the grand jury that three kilograms were involved in the first Miami trip and two kilograms were involved in the second Miami trip. The 11th Circuit upheld the district court’s determination, finding that the court allowed for the witness’ inconsistent testimony. The court found that the December acquisition involved two kilograms, which was added to the two kilograms from the November trip, plus the negotiation involving one kilogram. Thus the cumulative amount was five kilograms. U.S. v. Griffin, 945 F.2d 378 (11th Cir. 1991).
D.C. Circuit says drug quantity increase does not require clear and convincing evidence. (254) A co-defendant testified that defendant had supplied him with at least an ounce (28 grams) of cocaine base for distribution on “hundreds” of occasions from 1987 to 1993. The district court credited this testimony and found defendant had distributed at least 2.8 kilograms of cocaine. Defendant argued that his co-defendant was an unreliable witness. The testimony resulted in him being sentenced for more than 10 times the amount of drugs alleged in the indictment and more than 40 times the amount found in his possession at his arrest. He further contended that this extraordinary increase required clear and convincing evidence rather than simply a preponderance of the evidence. The D.C. Circuit, finding the case indistinguishable from U.S. v. Lam, 966 F.2d 682 (D.C. Cir. 1992), rejected the need for the clear and convincing evidence standard here. Defendant’s sentence was based solely on the conduct of which he was actually convicted¾the cocaine base conspiracy. Moreover, defendant conceded that he was convicted of possessing 67.8 grams of crack, an amount that yielded a base offense level of 32. The 2.8 kilogram amount used by the district court resulted in a base level of 38, a six-level difference, as in Lam. The district court found the co-defendant to be a credible witness, and defendant did not point to any contrary evidence. U.S. v. Toms, 136 F.3d 176 (D.C. Cir. 1998).
D.C. Circuit finds reference to “gifts” for “2 1/2 people” or “about 200 people” was to 2000 grams of heroin. (254) Defendant was involved in a conspiracy to import heroin from Nigeria and distribute it in the U.S. The D.C. Circuit upheld the district court’s determination that defendant’s statement to an undercover agent that he had “gifts” for “2 1/2 people” or for “about 200 people” in June 1992 was a reference to about 2000 grams of heroin. Defendant’s courier returned from a June 1992 trip to Nigeria with one toiletry bag filled with heroin, whereas in April 1993 the couriers used two toiletry bags that contained 5,569 grams. The 2000 gram estimate was therefore conservative. U.S. v. Badru, 97 F.3d 1471 (D.C. Cir. 1996).
D.C. Circuit finds amount imported in December was same as seized from couriers in April. (254) Defendants were involved in a conspiracy to import and distribute heroin. They challenged the district court’s finding that the amount of drugs their couriers brought into the U.S. in December 1992 was about the same as the amount officials seized from the couriers in April 1993. The D.C. Circuit upheld the court’s conclusion that the two drug quantities were about the same given the similar modus operandi. On both occasions, heroin was secreted in two leather toiletry bags that the same conspirator provided. An undercover agent testified that the two bricks he saw were the same type, with the same markings and packaging. The same defendants were involved in planning and executing the two trips. The trips followed the same route from the U.S. to Nigeria and back into the U.S. through the Mexico‑California border. U.S. v. Badru, 97 F.3d 1471 (D.C. Cir. 1996).
D.C. Circuit approves drug estimate based on co-conspirator’s testimony. (254) A co-conspirator testified that he and defendant sold about eight ounces of heroin per week over a three year conspiracy. Although this amounted to more than 23 kilograms of heroin, the district court determined that, because of the “rough and ready nature” of this estimate, defendant had distributed only 10 kilograms of heroin, the minimum amount necessary for an offense level of 36. The D.C. Circuit affirmed. The co-conspirator’s testimony, interpreted conservatively, amply supported the drug quantity determination. U.S. v. Spriggs, 996 F.2d 320 (D.C. Cir. 1993).