NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0494n.06
Case No. 17-4032
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 04, 2018
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
DEMOND BAKER, ) OHIO
)
Defendant-Appellant. )
BEFORE: BATCHELDER, DONALD, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. Demond Baker appeals his sentence following his guilty plea to
a drug-conspiracy charge. We affirm.
I.
Demond Baker and his father, Emery Lee, sold drugs as part of a large drug-trafficking
conspiracy. Lee managed the operation. He would buy drugs from suppliers and then have others,
including Baker, sell or distribute those drugs, primarily heroin and cocaine. But the government
eventually discovered the scheme and brought charges against twenty codefendants, including
Baker, Lee, Lee’s girlfriend Rhonda Collins, and Lee’s principal supplier.
After seeing the weight of the evidence against him, Baker pled guilty to conspiracy to
possess with intent to distribute cocaine, cocaine base, and heroin. In his plea agreement, Baker
and the government stipulated that he was responsible for handling between 100 and 200 grams of
Case No. 17-4032, United States v. Baker
cocaine. But at his sentencing hearing, the district court questioned the accuracy of this amount.
After a continuance and a revised pre-sentence report, the district court found Baker responsible
for 500 grams of cocaine. In reaching this conclusion, the district court partially relied on a phone
call Baker made in jail. In the call, Baker said that the police failed to find $12,500 of his drug
money during a search of his house. The evidence of this undiscovered drug money, when paired
with the $3,680 that police did discover, led the district court to conclude that Baker was
responsible for at least 500 grams of cocaine. Attributing 500 grams of cocaine to Baker raised
his sentencing guidelines range above what the plea agreement recommended, so the district court
sentenced Baker to fifty months. This court affirmed. United States v. Baker, 858 F.3d 419, 421
(6th Cir. 2017).
As it turned out, although Baker may have made the jailhouse phone call that the district
court relied upon, there was no actual recording of it. And the government, after a search of its
records, admitted as much. So this court vacated Baker’s original sentence and remanded for
resentencing. United States v. Baker, 869 F.3d 401 (6th Cir. 2017) (order). On remand, the district
court held a new sentencing hearing and relied on most of the same evidence, including the
unrecorded phone call. The court said there was no reason to think that Baker did not make the
phone call, even without an actual recording of it. And, once again, the court sentenced Baker to
fifty months after finding him responsible for 500 grams of cocaine. Baker now appeals.
II.
Baker argues that the district court erred because there was insufficient evidence
demonstrating he was responsible for 500 grams of cocaine.1 He also contends that the district
1
Baker also argues that his sentence is substantively unreasonable. But his one-sentence argument in the concluding
lines of his brief is insufficient. So he has forfeited his substantive unreasonableness argument. McPherson v. Kelsey,
125 F.3d 989, 995–96 (6th Cir. 1997) (“It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to put flesh on its bones.” (internal quotation marks and alteration omitted)).
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Case No. 17-4032, United States v. Baker
court should not have relied upon the jailhouse phone call because it was unreliable. We affirm
the district court in both respects.
Insufficient evidence. “We review for clear error the district court’s factual findings on
drug quantity attributable to a defendant for sentencing purposes.” United States v. Rios, 830 F.3d
403, 436 (6th Cir. 2016). Since the exact quantity of drugs was unknown in Baker’s case, the
district court had to estimate the amount of drugs for which Baker was responsible. United States
v. Jeross, 521 F.3d 562, 569–70 (6th Cir. 2008) (holding that when the exact amount of drugs is
unclear, “an estimate will suffice”). That estimate must be supported by a preponderance of the
evidence. Id. at 570. And district courts must err on the side of caution. United States v.
Sandridge, 385 F.3d 1032, 1037 (6th Cir. 2004).
In estimating the amount of drugs, district courts may consider the drug quantities in which
the defendant was directly involved and those reasonably foreseeable to him. United States v.
Ledezma, 26 F.3d 636, 646 (6th Cir. 1994). Here, the district court’s estimate was supported by a
preponderance of the evidence.
First, wiretap phone calls demonstrated that Baker was involved with selling 172 grams of
cocaine. In those calls, Baker and Lee discussed specific quantities. And Baker does not dispute
that these calls connect him to 172 grams of cocaine.
Second, Baker was either involved with selling at least an additional 328 grams or that
amount was reasonably foreseeable to him based on his role in the conspiracy. In reaching this
estimated amount, Baker’s co-conspirators did him no favors. His father’s girlfriend, Rhonda
Collins, told the government that Baker got his drugs from Lee. Lee, in turn, said that Baker
handled “large quantities” of cocaine. And the intercepted phone calls indicated that Lee and
Baker sold drugs together.
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Case No. 17-4032, United States v. Baker
With Baker’s role in the conspiracy established, the district court then considered the
quantities of cocaine that had moved through the conspiracy. Lee was found responsible for five
kilograms of cocaine, and Lee’s principal supplier was responsible for seven kilograms. Because
Baker was one of three people who distributed Lee’s drugs, and Lee and Baker worked together
“day in and day [out],” the district court concluded it was reasonable to assume Baker knew of and
handled a significant portion of the five kilograms of cocaine. United States v. Mariscal, 326 F.
App’x 359, 362 (6th Cir. 2009) (upholding the district court’s use of the drug quantities that the
defendant’s co-conspirators admitted being responsible for to estimate the drug quantity for which
the defendant was responsible); see United States v. Swanberg, 370 F.3d 622, 625 (6th Cir. 2004)
(“[T]estimonial evidence from a coconspirator may be sufficient to determine the amount of drugs
for which another coconspirator should be held accountable.”). Additionally, a confidential source
recounted that Lee said he gave “his son” one kilogram of cocaine in August 2014. Even though
Lee had two step-sons who were also involved in the conspiracy, the district court determined that
the statement was likely about Baker because Lee used Baker’s nickname. Plus, Baker spent more
time with Lee than the step-sons did.
In response to this evidence, Baker makes a broad argument that the evidence linking him
to 500 grams of cocaine was insufficient. He notes, for instance, that Lee and Collins do not
mention a specific quantity of drugs. But sentencing courts are not required to calculate the amount
with mathematical certainty; rather, the court must make a reasonable estimate. United States v.
Hernandez, 227 F.3d 686, 699 (6th Cir. 2000). And the district court’s estimate was based not just
on the co-conspirators’ statements. The district court properly considered them alongside the
confidential source’s statement and the quantity of cocaine for which Baker’s co-conspirators were
responsible. See United States v. Cohen, 515 F. App’x 405, 412–13 (6th Cir. 2013) (finding co-
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Case No. 17-4032, United States v. Baker
defendants’ proffer statements to be sufficiently reliable because they were corroborated by other
evidence).
Baker also contends that he should not be held responsible for the drug quantities of his
co-conspirators because he was only involved in the multi-year conspiracy for four months. But
the district court took this into account by finding a drug quantity of 500 grams—only a small
fraction of the five kilograms for which Lee was held responsible. Further, this court has held that
district courts may consider conduct that occurred outside the time period of the conspiracy to
which a defendant pled guilty. United States v. Miller, 910 F.2d 1321, 1327 (6th Cir. 1990). In
Miller, the defendant pled guilty to conspiring to distribute cocaine over a three-month period, but
this court concluded that his sales of cocaine over a twenty-month period were properly included
as relevant conduct. Id. Therefore, the evidence that Lee gave Baker one kilogram of cocaine
outside of the four-month period is relevant conduct that the district court could consider in
reaching its estimate of 500 grams. United States v. Brown, 332 F.3d 363, 375 (6th Cir. 2003)
(“We . . . review the determination that the conduct in question was relevant conduct de novo.”).
With evidence pointing to a kilogram of cocaine and a broader conspiracy of at least five
kilograms, the district court did not err by approximating that Baker was responsible for, at the
very least, 500 grams. Hernandez, 227 F.3d at 699 (“District courts may approximate the quantity
of drugs for sentencing purposes based upon circumstantial evidence as long as they err on the
side of caution.”).
Jailhouse phone call. Second, Baker says that the jailhouse phone call is unreliable
because there is no evidence of a recording. But the standard for reliability is a “relatively low
hurdle.” United States v. Stout, 599 F.3d 549, 558 (6th Cir. 2010). And while a recording may
make evidence more reliable, it does not follow that the lack of a recording makes that same
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evidence automatically unreliable. Cf. United States v. Bates, 315 F. App’x 591, 594 (6th Cir.
2009) (holding that hearsay that “may not rise to the level” of reliability of other evidence can still
be reliable). Unrecorded statements may still be reliable. And, in any event, any error in relying
on the phone call was harmless because the district court had sufficient evidence without the phone
call to conclude that Baker was responsible for at least 500 grams of cocaine.
We affirm.
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