Submitted: June 10, 2019
from United States District Court for the Western District of
Missouri - Kansas City
LOKEN, KELLY, and ERICKSON, Circuit Judges.
I. Sterling pleaded guilty to two counts of cocaine
distribution and one count of conspiracy to distribute 28
grams or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), (b)(1)(C), and 846. At
sentencing, over Sterling's timely objections, the
district court determined that his base offense level is 26,
based on unchallenged drug quantity facts stated in the
Presentence Investigation Report ("PSR").
See USSG § 2D1.1(c)(7). The court also imposed
a two-level enhancement for possession of a dangerous weapon.
§ 2D1.1(b)(1). This resulted in an advisory guidelines
sentencing range of 100 to 125 months imprisonment. The court
imposed a 125-month sentence, consecutive to Sterling's
state sentence for second-degree murder. Sterling appeals the
drug quantity and dangerous weapon determinations. Reviewing
for clear error, we conclude the government failed to prove
estimated drug quantity above base offense level 24 with
information that "has sufficient indicia of reliability
to support its probable accuracy." USSG § 6A1.3(a).
Accordingly, we remand for resentencing.
The Base Offense Level Issue.
was arrested following a lengthy investigation in which law
enforcement officers conducted twenty-one controlled drug
buys from Sterling and co-defendants Darryl Smith and
Antwanette Howard. The PSR precisely calculated quantities of
powdered cocaine and cocaine base involved in each of the
controlled buys, and the quantities of drugs and cash seized
during a warrant search of Howard's residence on November
15, 2015, the last day of the alleged conspiracy. The PSR
recited that, during five of the controlled buys, the
undercover detective observed Smith or Howard deliver
individually wrapped baggies of cocaine from a larger bag
containing multiple individually wrapped
baggies. The PSR attributed to Sterling the total
amounts sold and seized, making Sterling accountable for
168.355 kilograms of marijuana equivalent, well within the
100 to 400 kilograms required for base offense level 24.
See § 2D1.1(c)(8). However, the PSR noted,
conspirators Smith and Howard stipulated in their plea
agreements to being accountable for the distribution of at
least 400 but less than 700 kilograms of marijuana
equivalent. Paragraph 49 of the PSR concluded:
In this case, there were several controlled purchases of
cocaine and cocaine base from Sterling and/or his associates.
Also, the undercover detective frequently observed Sterling
and/or his associates to possess larger quantities of cocaine
than those sold to the undercover, and the $4, 381 recovered
during the search should be converted to drugs. Therefore the
Probation Office has held Sterling accountable for the
distribution of at least 400 kilograms, but less than 700
kilograms of marijuana equivalent.
of 400-700 kilograms of marijuana equivalent, more than
double the amount actually seized, results in base offense
level 26. Sterling did not object to the PSR's detailed
description of the controlled buys and evidence seized in the
warrant search but did object to paragraph 49:
Nothing in the [Smith and Howard] plea agreements is directed
to the critical issue of what [Sterling] knew or should have
known. . . . [T]he only known quantities of drugs come from
the undercover sales and search warrant seizure, and those
quantities total only into the low end of the offense level
24 range. It is too much of a stretch, and more like a leap
too far, to say that proof against [Sterling] more than
triples so as to surpass the offense level 24 range and move
all the way into level 26 range.
Probation Officer responded: "because the additional or
larger amounts of cocaine and crack cocaine are unknown and
unaccounted for, the Probation Office believes it is
reasonable that Smith, Howard, and Sterling be held
accountable for the distribution of [level 26 quantities] . .
. . Ultimately, the Court will determine the applicable base
offense level in this case."
sentencing, the government introduced no further evidence
regarding drug quantity. Rather, it called three witnesses
who testified that Sterling shot and killed Martez Diaz on
September 12, 2015, during the conspiracy period, to show
that Sterling's criminal history is under-represented.
Though one of the government's witnesses was co-defendant
Antwanette Howard, she was not asked about the quantities of
drugs distributed by the conspirators or the extent to which
quantities distributed by Smith and Howard were reasonably
foreseeable to Sterling. At the end of the evidentiary
hearing, the district court overruled Sterling's
objection to base offense level 26 based on "what was
presented in the [PSR]." On appeal, Sterling argues this
was a clearly erroneous drug quantity finding.
government must prove the quantity of drugs for which
Sterling is responsible by a preponderance of the evidence.
As a participant in a criminal conspiracy, Sterling is
responsible for acts of co-defendants Smith and Howard that
were within the scope of, in furtherance of, and reasonably
foreseeable in connection with the drug distribution
conspiracy. USSG § 1B1.3(a)(1)(B). When the amount of
narcotics seized by the government does not reflect the scale
of the drug trafficking offense, as in this case, "the
court shall approximate the quantity of the controlled
substance" and may consider, for example, "similar
transactions in controlled substances by the defendant."
USSG § 2D1.1, comment. (n.5). "The court may make a
specific numeric determination of quantity based on imprecise
evidence." United States v. Roach, 164 F.3d
403, 413 (8th Cir. 1998), cert. denied, 528 U.S. 845
defendants have appealed estimated drug quantity findings;
few have cleared the high bar of clear error review. That is
because, almost invariably, the district court finding was
based upon testimony at trial or at an evidentiary sentencing
hearing -- usually by suppliers or customers of the defendant
-- that provided the court with a reasonable basis to make
"a specific numeric determination of quantity based on
imprecise evidence." See, e.g., United
States v. Madison, 863 F.3d 1001, 1005-06 (8th Cir.
2017) (proffer interview report); United States v. Yellow
Horse, 774 F.3d 493, 496-97 (8th Cir. 2014)
(co-conspirator trial testimony); United States v.
Walker, 688 F.3d 416, 419 (customers' sentencing
hearing testimony); United States v. Bradley, 643
F.3d 1121, 1127-28 (8th Cir. 2011) (co-conspirator trial
testimony); United States v. Sicaros-Quintero, 557
F.3d 579, 582 (8th Cir. ...