United States 6th Circuit Court of Appeals Reports
U.S.A. v. JACKSON, 05-6338 (6th Cir. 11-30-2006) UNITED
STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL L.
JACKSON, Defendant-Appellant. No. 05-6338. United States
Court of Appeals, Sixth Circuit. Argued: November 2, 2006.
Decided and Filed: November 30, 2006. Pursuant to Sixth
Circuit Rule 206.
Appeal from the United States District Court for the
Western District of Tennessee at Jackson. No. 04-10062
— James D. Todd, Chief District Judge.
ARGUED: Mary C. Jermann-Robinson, OFFICE OF THE FEDERAL
PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE,
Memphis, Tennessee, for Appellant.
James W. Powell, ASSISTANT UNITED STATES ATTORNEY, Jackson,
Tennessee, for Appellee.
ON BRIEF: M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC
DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis,
Tennessee, for Appellant.
James W. Powell, ASSISTANT UNITED STATES ATTORNEY, Jackson,
Tennessee, for Appellee.
Before: GILMAN and GRIFFIN, Circuit Judges; HEYBURN, Chief
District Judge.[fn*]
[fn*] The Honorable John G. Heyburn II, Chief United States
District Judge for the Western District of Kentucky,
sitting by designation.
OPINION
GRIFFIN, Circuit Judge.
Defendant-appellant Michael L. Jackson appeals his jury
conviction of possession with intent to distribute more
than five grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1). Defendant raises three issues on
appeal, alleging that: (1) the district court erred in
denying his motion to suppress because the affidavit in
support of the search warrant failed to contain sufficient
indicia of the confidential informant’s reliability; (2)
the evidence submitted at trial regarding the weight of the
cocaine was insufficient to prove that defendant possessed
5.6 grams of cocaine base as alleged in the indictment; and
(3) the court erred in calculating defendant’s Sentencing
Guidelines range, relying upon the government’s expert’s
mere estimation of the quantity of cocaine base possessed
by defendant. For the reasons set forth below, we affirm.
I.
On January 9, 2004, officers participating in a regional
drug task force executed a search warrant at defendant’s
residence in Saltillo, Tennessee. The search warrant was
obtained based on an affidavit executed by Officer Tim
Cunningham, a member of the Savannah, Tennessee, Police
Department, assigned to the drug task force. The affidavit
stated in pertinent part as follows:
Within the past three days a controlled and monitored buy
of crack cocaine has been made from Michael Jackson at
this residence [location and description set forth in
detail] by a confidential informant. This informant was
wearing a transmitting device which could be monitored by
affiant. Informant was met by affiant before going to this
residence where informant and informant’s vehicle was
searched. Informant was given money to make this purchase
with that [sic] can be identified if found. Affiant
listened as Informant and Michael Jackson made this
transaction. Affiant heard informant call Michael by his
name and then discuss this sale along with some earlier
transactions. Affiant observed informant going into this
residence before making transaction. After making this
purchase informant met back with affiant and turned over
what they had purchased from Jackson at this residence.
This was consistent with what affiant had heard thru [sic]
monitoring device. Affiant field tested what was purchased
from Jackson and it checked positive for cocaine.
Checking with 911 the telephone at this residence is
listed to a Michael Jackson. Informant ask[s] their name
not be revealed for fear of their life. During transaction
affiant recognized this being the voice of Michael
Jackson.
Based on this information, the search warrant was issued on
January 9, 2004, and was executed later that same day. The
police recovered eighteen bags of crack cocaine, nine guns,
$400 in cash, and a small bag of marijuana.
A federal grand jury subsequently returned an indictment
charging defendant with possession of 5.6 grams of cocaine
base with intent to distribute and possession of a firearm
in connection with a drug offense, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c),
respectively.
Defendant filed a motion to suppress the evidence obtained
as a result of the search of his residence, alleging that
the search warrant was based upon a deficient affidavit and
hence issued without probable cause. The district court
conducted a suppression hearing on March 1, 2005. At the
hearing, Officer Cunningham testified that, prior to
seeking the search warrant, he and another officer conducted
a controlled buy at defendant’s residence. Cunningham
testified that he related the specific nature of the
controlled buy and the name of the confidential informant
to the issuing magistrate. He further testified that the
informant had no criminal record and no pending criminal
charge. Officer Cunningham stated that the informant was
searched before the buy, he watched the informant enter the
residence, and, during the course of the transaction, he
recognized one of the voices as being that of defendant.
On cross-examination, Officer Cunningham testified that a
transmitting device was worn by the informant during the
controlled buy so that the officers could listen to the
transaction. Officer Cunningham testified that while he and
the other officer sat in his unmarked vehicle approximately
150 yards away from defendant’s residence, the informant
drove separately to defendant’s trailer in his own vehicle,
which had been searched prior to the controlled buy.
Officer Cunningham testified that “the transaction actually
took place just outside the door of the residence.” Noting
that the affidavit in support of the search warrant
indicated that “[a]ffiant observed informant going into this
residence before making transaction,” defense counsel
further questioned Officer Cunningham regarding where the
controlled buy occurred. Officer Cunningham explained that
“the transaction actually occurred outside at the residence
itself on the porch, which the yard is part of the
residence, to me, part of their residence.” Officer
Cunningham acknowledged that he did not witness the
transaction; instead, the officers listened to the
transaction using a monitoring device. However, the
transmission was not recorded. After the purchase was made,
the officers met with the informant a short distance away
from defendant’s residence and field-tested the
substance sold to the informant, which tested positive for
cocaine base. Officer Cunningham testified that the
informant, a known drug user, was paid $50 for making the
controlled buy.
In an oral ruling from the bench, the district court
denied defendant’s motion to suppress, concluding that the
requisite probable cause to search the residence had been
established. The district court further concluded that
defendant’s staleness argument was without merit, that the
reliability of the informant was sufficiently buttressed by
the monitored controlled buy and, even assuming arguendo
there was a defect in the affidavit and warrant, the
good-faith exception of United States v. Leon, 468 U.S. 897
(1984), applied to justify denial of defendant’s motion to
suppress. The court thereafter denied defendant’smotion to
reopen the proofs and to reconsider the order denying
defendant’s motion to suppress.
The case proceeded to a jury trial, during which Officer
Cunningham reiterated the circumstances of the controlled
buy. When the search warrant was executed, the officers
found a styrofoam cooler in the laundry room area of
defendant’s residence. Inside the cooler there were two
small socks containing eighteen individually packaged bags
of crack cocaine. The officers also found a gun in the
laundry room and several other firearms in other areas of
the residence.
Agent Jessica Webb of the Tennessee Bureau of Investigation
(“TBI”) was called by the government to testify about the
substance found in the bags. Agent Webb, a chemist charged
with drug identification for the TBI, testified as to her
qualifications as a biochemist. Without objection from
defense counsel, the district court qualified her as an
expert witness in the field of forensic chemistry. Agent
Webb testified that she conducted a chemical analysis and
weighed the substance found in the two socks seized from
defendant’s residence. She determined that the substance in
the eighteen bags was cocaine base, with a total weight of
5.6 grams. Agent Webb explained the methodology utilized in
weighing the cocaine:
I would take the contents out of the bag; and in this
particular instance, when we have a large amount of
substance — [i]nside these bags were eighteen
smaller bags. There is a scientific — a proven
scientific method that we do. It’s called random sampling.
And I take the square root of the amount that was in
there, and I weighed four bags — emptied the
contents, and I weighed four empty plastic bags, and then
I multiplied that by the eighteen that was in there and
got the weight of the bags, the empty bags. And I
subtracted that from the total weight of the bags plus the
exhibit that was in there. So it came out to be 5.6 grams.
On cross-examination, Agent Webb further explained the
extrapolation process:
What I did was a — it’s called random sampling.
And I basically — I emptied the contents of four
bags and weighed the empty bags and got a total weight and
divided that by 4 and got the weight of an individual bag
and multiplied that by 18 because all of the bags were
similar in size and had about the same amount of material
inside them. And I received the total weight of the
eighteen bags, which would be empty bags, and I subtracted
that by the total weight of the bags plus what’s inside
the bags.
Agent Webb clarified that she actually opened and tested
six of the eighteen bags to determine the nature of the
substance and emptied four of the bags for the purpose of
calculating the total weight of the cocaine base. Agent
Webb agreed that her calculation using selected samples was
based upon the assumption that the bags were of identical
weight and substance; other than the six bags actually
tested, Agent Webb did not test the remaining twelve bags
to verify their weight or whether the substance was
cocaine. However, Agent Webb testified that her sampling
method was the “normal procedure” and an accepted
scientific practice in the forensic community that had
proven to be a “statistically accurate methodology.”
At the conclusion of the government’s proofs, defense
counsel moved for a judgment of acquittal, arguing that the
government was unable to prove beyond a reasonable doubt
that defendant actually possessed more than five grams of
cocaine base in light of Agent Webb’s testimony that she
never weighed the full amount of drugs, but rather
extrapolated the weight from a random sampling. The
district court denied the motion.
The defense called the human resources manager at
defendant’s place of employment to testify that defendant
had just received a large vacation reimbursement check from
his job. Defendant’s wife also testified on his behalf,
explaining that there were several people —
defendant, herself, their fifteen-year old son, her son
from a previous relationship, his girlfriend, and their
child — living in the trailer when the search
occurred. Other relatives lived on the surrounding
properties; thus, they never locked their doors because
these relatives frequently accessed defendant’s trailer.
Defendant’s wife testified that the guns found on the
premises belonged to her husband.
At the conclusion of the proofs, defendant’s renewed motion
for judgment of acquittal was again denied by the district
court. The jury found defendant guilty on count one,
possession with intent to distribute more than five grams
of cocaine base, but not guilty of possession of a firearm
in connection with a drug crime. On August 19, 2005, the
district court sentenced defendant to seventy-eight months’
incarceration followed by four years of supervised release.
Defendant now timely appeals.
II.
Defendant first argues that the district court erred in
denying his motion to suppress because the alleged “bare
bones” affidavit in support of the search warrant failed to
contain sufficient indicia of the informant’s reliability.
Defendant contends that the affidavit does not adequately
specify the length of the confidential informant’s
involvement with Officer Cunningham, the reliability of the
confidential informant, the reliability of past information
provided by the informant, or the basis for the informant’s
knowledge of narcotics transactions. In addition, citing
the affidavit’s recitation that the informant made a
controlled buy of narcotics “within the past three days,”
defendant maintains that the magistrate judge lacked
probable cause to issue the search warrant because the
information contained in the search warrant was stale.
The Fourth Amendment provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation. . . .” U.S. CONST. AMEND. IV. “Probable cause
is defined as reasonable grounds for belief, supported by
less than prima facie proof but more than mere suspicion,”
United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990),
and is found to exist when there is “a `fair probability’
that evidence of a crime will be located on the premises of
the proposed search.” United States v. Jenkins, 396 F.3d
751, 760 (6th Cir. 2005) (quoting United States v. Bowling,
900 F.2d 926, 930 (6th Cir. 1990)). Search warrant
affidavits must be judged based on the totality of the
circumstances, rather than line-by-line scrutiny. United
States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004).
Review of the sufficiency of the evidence supporting
probable cause is limited to the information presented in
the four corners of the affidavit. United States v.
Frazier, 423 F.3d 526, 531 (6th Cir. 2005). “In order for a
judicial officer to issue a warrant, law enforcement
officials must present evidence from which the magistrate
judge can conclude from the totality of the circumstances,
`including the “veracity” and “basis” of knowledge of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.'” United States v. Williams,
224 F.3d 530, 532 (6th Cir. 2000) (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)).
The magistrate’s determination of probable cause is
afforded great deference and should be reversed only if
arbitrarily made. United States v. Allen, 211 F.3d 970, 973
(6th Cir. 2000) (en banc). The district court’s denial of a
motion to suppress is reviewed by this court for clear
error with respect to the court’s findings of fact and de
novo with regard to conclusions of law. United States v.
Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc). In
such a review, this court considers the evidence in the
light most favorable to the government. United States v.
Caruthers, 458 F.3d 459, 464 (6th Cir. 2006).
“While independent corroboration of a confidential
informant’s story is not a sine qua non to a finding of
probable cause, . . . in the absence of any indicia of the
informant’s reliability, courts insist that the affidavit
contain substantial independent police corroboration.”
Frazier, 423 F.3d at 532. An affidavit is sufficient “where
a known person, named to the magistrate, to whose
reliability an officer attests with some detail, states
that he has seen a particular crime and particular
evidence, in the recent past, [such that] a neutral and
detached magistrate may believe that evidence of a crime
will be found.” Allen, 211 F.3d at 976. As we explained in
United States v. McCraven, 401 F.3d 693, 697 (6th Cir.
2005):
Under Allen, while an affidavit must state facts
supporting an independent judicial determination that the
informant is reliable, those facts need not take any
particular form. See [Allen, 211 F.3d] at 975-76. The
affidavit could state that police corroborated significant
parts of the informant’s story. Or the affiant could
attest “with some detail” that the informant provided
reliable information in the past. Id. at 976. Or there
could be other indicia of the informant’s reliability,
such as a detailed description of what the informant
observed first-hand, or the willingness of the informant
to reveal his or her name. As long as the issuing judge
can conclude independently that the informant is reliable,
an affidavit based on the informant’s tip will support a
finding of probable cause.
Consequently, “an affidavit that supplies little
information concerning an informant’s reliability may
support a finding of probable cause, under the totality of
the circumstances, if it includes sufficient corroborating
information.” Woosley, 361 F.3d at 927. See also United
States v. Pinson, 321 F.3d 558, 563 (6th Cir. 2003) (“[T]he
affidavit in this case contained [the officer’s] personal
observation, his pat down of the informant before and after
the purchase of the narcotics, and the fact that the drugs
purchased by the confidential informant were later tested
positive for cocaine base. All of this information was
clearly stated in the affidavit, and the affidavit meets
the Allen test.”); United States v. Tuttle, 200 F.3d 892,
894 (6th Cir. 2000) (“[I]nformation received from an
informant whose reliability is not established may be
sufficient to create probable cause when there is some
independent corroboration by the police of the informant’s
information.”).
Recently, in United States v. Coffee, 434 F.3d 887, 894-95
(6th Cir. 2006), this court found the requisite probable
cause where the officer’s affidavit in support of the
search warrant contained no averments that the confidential
informant was reliable based on prior contacts, but did
contain substantial independent police corroboration because
it detailed the circumstances of the controlled purchase of
the cocaine base.
Here, as in Coffee, Officer Cunningham’s affidavit does not
expressly vouch for the credibility or reliability of the
informant. Nonetheless, Officer Cunningham’s affidavit
avers that he listened to the controlled buy via a
monitoring device from a location near defendant’s
residence, visually observed the two individuals, heard
defendant discuss the sale of crack cocaine, along with
some earlier transactions, and identified defendant’s voice
as that of the seller. Officer Cunningham searched the
informant before the purchase, supplied him with marked
funds, and immediately met with the informant following the
buy and field-tested the purchased substance.
Consequently, although details concerning the informant’s
reliability gleaned from past encounters are lacking, the
magistrate’s finding of probable cause in this case was
based on the affiant’s personal knowledge and observations,
rather than hearsay of the informant. Officer Cunningham’s
corroboration of events that occurred during the controlled
buy, as set forth in the affidavit, provide sufficient
probable cause to sustain issuance of the search warrant.
Coffee, 434 F.3d at 894-95.
Further, contrary to defendant’s contention, there is no
requirement that an informant be named either in the
affidavit or the search warrant. See Woosley, 361 F.3d at
927 n. 4 (“[W]e do not read Allen as setting a rigid
requirement that a confidential informant always be `named
to the magistrate.'”). In any event, when he testified at
the suppression hearing, Officer Cunningham stated that he
did in fact give the name of the informant to the
magistrate.
Moreover, defendant’s staleness argument is without merit.
“[A] warrant is stale if the probable cause, while
sufficient at some point in the past, is now insufficient
as to evidence at a specific location.” United States v.
Abboud, 438 F.3d 554, 572 (6th Cir. 2006). In reviewing
whether a probable cause finding is stale, this court should
consider the defendant’s course of conduct, the nature and
duration of the offense, the nature of the relevant
evidence, and any corroboration of the information. United
States v. Gardiner, 463 F.3d 445, 471 (6th Cir. 2006).
As the government notes, this court has previously found
staleness arguments in analogous circumstances to be
without merit. See United States v. Lattner, 385 F.3d 947,
953 (6th Cir. 2004) (surveillance of suspected narcotics
trafficking at the defendant’s house two days prior to
securing search warrant not stale evidence); United States
v. Johnson, 351 F.3d 254, 259-60 (6th Cir. 2003)
(informant’s observations concerning drug dealing given
within three days of issuance of search warrant not stale);
Pinson, 321 F.3d at 565 (search warrant not stale where
controlled purchase by informant, on which warrant was
based, took place three days before issuance of warrant).
The three-day period between the controlled buy and
issuance of the search warrant in the instant case was
therefore reasonable and the warrant was not stale.
III.
Defendant next advances two arguments concerning the
quantity of cocaine base at issue. First, he contends that
insufficient evidence was adduced at trial to establish
beyond a reasonable doubt that defendant possessed in
excess of five grams of cocaine base in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii).
Specifically, defendant argues that the random sampling
methodology employed by Agent Webb was no more than an
educated guess and did not accurately establish that
defendant was in possession of 5.6 grams of crack cocaine.
Second, defendant asserts that the district court erred in
calculating the applicable Sentencing Guidelines range when
it utilized Agent Webb’s allegedly unreliable estimation of
drug weight to set defendant’s base offense level at 26, in
accordance with U.S.S.G. § 2D1.1(c)(7), for
possession of more than five grams, but less than twenty
grams, of cocaine base. Defendant further maintains that
the sentence imposed by the district court is unreasonable
because the court failed to weigh the requisite 18 U.S.C.
§ 3553(a) factors.
A.
The relevant question in assessing a challenge to the
sufficiency of the evidence is “whether, after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Kincaide, 145 F.3d 771, 781 (6th Cir. 1998)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
This court will not “weigh the evidence presented, consider
the credibility of witnesses, or substitute our judgment
for that of the jury.” United States v. Davis, 177 F.3d
552, 558 (6th Cir. 1999). On the contrary, the court will
“draw all available inferences and resolve all issues of
credibility in favor of the jury’s verdict.” United States
v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001). “[I]n cases
where the factual determination of the quantity of drugs
attributable to the defendant significantly impacts the
appropriate sentencing range under 21 U.S.C. § 841,
a jury must decide on the quantity of the drugs beyond a
reasonable doubt.” In re Clemmons, 259 F.3d 489, 492 (6th
Cir. 2001).
Pursuant to this standard, we conclude that sufficient
evidence was presented to sustain defendant’s conviction of
possession of five or more grams of cocaine base. Agent
Webb testified that she used a random sampling method,
whereby she examined and tested the substance in six of the
eighteen bags of cocaine base, and extrapolated the total
weight, which she determined to be 5.6 grams, by emptying
the contents of four of the bags and using a “statistically
accurate” mathematical formula to arrive at the total net
weight of all eighteen bags. Webb testified that, although
she did not sample or weigh the remaining twelve bags
individually to verify weight or content, “[t]o [her]
observation, they were similar” in size and weight and the
extrapolation was “accepted scientific practice in the
forensic community.” All of the bags were seized at the
same time, from the two socks in the styrofoam cooler,
during the search of defendant’s residence.
At trial, in challenging this methodology and the
sufficiency of the proofs pertaining to the total weight of
the confiscated bags, defendant argued in general terms
that the extrapolation was merely an unreliable estimation
of the total weight of the eighteen bags.
We note that defendant neither challenged the admissibility
of Agent Webb’s testimony nor raised any Daubert [v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)]
objections to the reliability and relevancy of the random
sampling methodology, but rather challenged the sufficiency
of this evidence in the context of his motion for a
judgment of acquittal. As this court has noted in Conde v.
Velsicol Chemical Corp., 24 F.3d 809, 813 (6th Cir. 1994),
“[T]he holding in Daubert . . . dealt only with the
circumstances under which expert testimony is admissible,
and not with the separate question of when such testimony
is sufficient to submit a case to the jury.” The district
court herein properly noted this distinction when, in ruling
on defendant’s motion, it noted that defendant’s argument
that Agent Webb’s calculations were insufficient to support
count one of the indictment “go to the weight of the
testimony, rather than its admissibility.” In any event,
the district court properly admitted Webb’s “reasonably
reliable” extrapolation, see infra, Section III.B., and
defendant produced no evidence or testimony contradicting
Agent Webb’s conclusions, the viability of her random
sampling technique, or the weight of the cocaine base.
Defendant was specifically charged in the indictment with
possession with intent to distribute in excess of five
grams of cocaine base, and the government’s expert, Agent
Webb, testified that her extrapolation yielded a total drug
weight of 5.6 grams. The jury was entitled to accept or
reject this testimony regarding the drug quantity and
obviously credited such evidence in concluding that
defendant possessed more than five grams of cocaine base.
This evidence, taken in the light most favorable to the
government, is sufficient evidence upon which a trier of
fact could have found the essential elements of the charged
offense beyond a reasonable doubt. See United States v.
Chavis, 296 F.3d 450, 455-56 (6th Cir. 2002) (sufficient
evidence supported defendant’s conviction for possession of
more than five grams of crack cocaine where the jury was
entitled to believe the testimony of the government’s
expert witness that she weighed cocaine base using
measurement that she believed to be accurate to a
reasonable scientific certainty).
B.
Defendant’s argument that his sentence was unreasonable and
that the district court erred in calculating the total
amount of cocaine base for which he should be held
responsible under the Sentencing Guidelines is similarly
without merit.
The presentence investigation report (“PSR”) set
defendant’s base offense level at 26, in accordance with
U.S.S.G. § 2D1.1(c)(7), for possession of more than
five grams of cocaine base but less than twenty grams. This
base offense level was enhanced by two levels for
possession of a dangerous weapon pursuant to U.S.S.G.
§ 2D1.1(b)(1), making the total offense level 28.
The PSR determined that defendant had no prior criminal
history and thus assigned a score of zero and criminal
history category of I. The resultant Guidelines range was
seventy-eight to ninety-seven months.
At the sentencing hearing, defendant objected to the
factual basis for the sentence contained in paragraphs 3
and 4 of the PSR, disputing that the amount of the crack
cocaine, 5.6 grams, had been sufficiently established.
Defendant also objected to the two-level enhancement for
possession of a dangerous weapon, arguing that because he
was acquitted on the weapons count, there was an
insufficient factual basis for imposition of that
enhancement. Defendant further argued that a sentence below
the Guidelines range would be reasonable under the
circumstances, given his age, lack of criminal history, and
steady employment. The district court, however, after
reviewing the trial testimony of Agent Webb, rejected
defendant’s argument regarding the amount of drugs involved
and denied defendant’sobjection to the two-level
enhancement. The court proceeded to sentence defendant to
seventy-eight months’ imprisonment, the minimum sentence in
the Guidelines range.
This court reviews the sentence imposed by the district
court for reasonableness. United States v. Collington, 461
F.3d 805, 807 (6th Cir. 2006). A sentence within the
Guidelines is presumptively reasonable. Id. at 808.
Further, this court reviews for clear error the district
court’s determination of the quantity of drugs attributable
to a defendant for sentencing purposes. United States v.
Swanberg, 370 F.3d 622, 625 (6th Cir. 2004). At sentencing,
the government must prove the quantity of drugs
attributable to a defendant by a preponderance of the
evidence. Id. “[C]ourts have endorsed statistically based
drug-quantity extrapolations predicated on random
test samples in circumstances where the government was able
to demonstrate an `adequate basis in fact for the
extrapolation and that the quantity was determined in a
manner consistent with the accepted standards of
[reasonable] reliability.'” United States v. Scalia, 993
F.2d 984, 989 (1st Cir. 1993) (quoting United States v.
McCutchen, 992 F.2d 22, 25-26 (3d Cir. 1993)).
“[S]ufficient indicia of reliability may be found where a
preponderance of the evidence demonstrates that (1) a proper
`random’ selection procedure was employed; (2) the chemical
testing method conformed with an accepted methodology; (3)
the tested and untested samples were sufficiently similar
in physical appearance; and (4) the tested and untested
samples were contemporaneously seized at the search scene.”
Id. In other words, “the overall margin of reliability in a
drug-quantity approximation must be adequate to
afford reasonable assurance that the defendant is not
subjected to a guideline sentence or a mandated minimum
sentence greater than warranted by the reliable evidence.”
Id.
Here, Agent Webb testified on behalf of the government that
she used a random sampling process, which she characterized
as “normal procedure” and “statistically accurate
methodology,” to reach her conclusion that the eighteen
bags of cocaine base seized from defendant’s residence
weighed 5.6 grams. She observed that all of the bags,
contemporaneously seized from defendant’s residence, were
of equal size and weight. This exclusive evidence regarding
the quantity and contents of the bags possessed sufficient
indicia of reliability and constituted the cornerstone of
the jury’s verdict finding defendant guilty of possession
with intent to distribute in excess of five grams of cocaine
base. In turn, it was precisely this jury determination of
the quantity of cocaine, based upon Agent Webb’s reasonably
reliable methodology, that the district court used as the
basis for its Guidelines calculation that the base offense
level of 26 was appropriate, in accordance with U.S.S.G.
§ 2D1.1(c)(7), for possession of more than five grams
of cocaine base but less than twenty grams. Under the
circumstances, the district court did not clearly err in
its Guidelines calculations regarding the quantity of drugs
attributable to defendant for sentencing purposes.
Moreover, the record belies defendant’s argument that the
court failed to properly consider the § 3553(a)
factors, particularly defendant’s age, criminal history,
and steady employment. Defendant’s sentence of
seventy-eight months of imprisonment, at the low end of the
Guidelines range, was entirely reasonable.
For the above-stated reasons, defendant’s
conviction and sentence are affirmed.