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United States v. Sterling

United States Court of Appeals, Eighth Circuit

November 1, 2019

United States of America Plaintiff- Appellee
v.
Kimani I. Sterling Defendant-Appellant

          Submitted: June 10, 2019

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

          LOKEN, Circuit Judge.

         Kimani 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.

         I. The Base Offense Level Issue.

         Sterling 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.[1] 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.

         Distribution 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.

         The 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."

          At 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.

         The 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 (1999).

         Many 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. ...


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