[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 24, 2007
No. 06-12328 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00112-CR-01-WBH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RALPH OUTLAW,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 24, 2007)
Before ANDERSON, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Ralph Outlaw (“Outlaw”) appeals his 78-month sentence, imposed after he
pled guilty to possession with intent to distribute heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 851. Outlaw argues that the drug quantity that the
sentencing court attributed to him is not supported by credible evidence and is not
supported by adequate factual findings. Outlaw argues that the government’s
failure to disclose the relevant conduct that would be used to enhance his sentence
prior to his guilty plea violated his Fifth Amendment right to due process. Outlaw
also argues that the use of relevant conduct to increase the amount of drugs
attributed to him violated his Sixth Amendment right to a jury trial.
BACKGROUND
Outlaw pled guilty to one count of possession with intent to distribute
heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 851without the benefit
of a plea agreement. During the plea colloquy, Outlaw admitted that he had a prior
state criminal record. Outlaw acknowledged that he discussed the sentencing
guidelines with his attorney and that he understood those guidelines could affect
his ultimate sentence. At the plea colloquy, the government asserted that there was
no dispute regarding the amount of heroin involved in the offense, which totaled
approximately 21 grams.1 Outlaw admitted that he was in possession of that
amount of heroin, which he intended to sell, when he was arrested in February
1
Outlaw was arrested with 21.56 grams of heroin.
2
2005. The district court accepted Outlaw’s plea and adjudicated him guilty.
Following Outlaw’s arrest, law enforcement authorities interviewed Grady
Douglas (“Douglas”) regarding Outlaw’s drug trafficking activities. Douglas had
recently pled guilty to possession with intent to distribute heroin. Douglas stated
that he supplied Outlaw with approximately 30 grams of heroin every day and
indicated that he supplied the heroin that was seized from Outlaw on the day of his
arrest. Douglas did not provide any details as to the length of time during which he
distributed heroin to Outlaw. Douglas’s lawyer later provided a statement to
authorities in which Douglas admitted to providing Outlaw with 100 grams of
heroin per week from the summer of 2004 until Outlaw’s arrest in February 2005.
During another interview with authorities, Douglas reiterated his previous
statement that Outlaw sold drugs daily. However, as to the amount of drugs
involved, Douglas stated that he supplied Outlaw with 30 grams of heroin each day
from August/September 2004 until Outlaw’s arrest in February 2005.
The probation officer prepared a presentence investigation report (“PSI”).
After considering Douglas’s statements and the amount of heroin found in
Outlaw’s possession on the date of his arrest, the probation officer determined that
Outlaw was responsible for an aggregate of 4,860 grams of heroin based on his
receipt of 30 grams of heroin over a period of 162 days pursuant to U.S.S. G. §
3
2D1.1(c)(3). The probation officer calculated the total offense level to be 32 after
subtracting 2 levels for acceptance of responsibility, pursuant to U.S.S.G. §
3E1.1(a). With an adjusted offense level of 32 and a criminal history category of
III, the probation officer determined that Outlaw’s guideline imprisonment range
was 151-188 months.
Outlaw objected to the probation officer’s assessment of his relevant
conduct, which resulted in an increased offense level based on a finding that he
was responsible for over 4 kilograms of heroin, rather than the 21 grams of heroin
found in his possession at the time of his arrest. Outlaw further objected to the
probation officer’s reliance on Douglas’s statements arguing (1) that the
government’s failure to disclose those statements prior to the plea hearing violated
his Fifth Amendment right to due process; and (2) because the statements were
incredible and unreliable, the government failed to meet its burden in proving the
enhanced drug quantity, in violation of his Sixth Amendment right to a fair trial.
At sentencing, the government called Douglas to establish Outlaw’s relevant
conduct and the amount of drugs attributable to him. Douglas testified that he
provided Outlaw with heroin to sell. In particular, he testified that he began to
supply drugs to Outlaw in September/October 2004. He testified that he initially
supplied Outlaw with 10 grams of heroin approximately 5 to 6 times each day.
4
Douglas testified that, as their business relationship progressed, he supplied
Outlaw with 30 grams of heroin twice a day. Douglas indicated that he and Outlaw
sold heroin seven days a week, with the exception of a three to four day break in
November 2004. Douglas also testified that he had never provided Outlaw with
100 grams of heroin each week, a statement that directly contradicted his statement
that was included in the PSI.
The district court found that Douglas’s testimony was credible to the extent
that Outlaw was involved in the sale of heroin for three to four months prior to his
arrest and that Douglas was his principal supplier. However, the court did not find
that it could attribute to Outlaw 30 grams of heroin per day, a total in excess of 3
kilograms, because Douglas’s testimony as the amount of drugs invovled was
unreliable. Ultimately, the court determined that the Outlaw was accountable for
100 grams of heroin a week for three to four months. While this amount calculates
to over one kilogram of heroin, the court found that the drug activity did not occur
everyday. Therefore, the court reduced the amount to less than 1 kilogram but
more than 700 grams.
Accordingly, the court determined that with a 2 level reduction for
acceptance of responsibility Outlaw’s offense level was 28 with the applicable
guideline range of 97 to 121 months’ imprisonment. After considering the
5
sentencing factors under 18 U.S.C. § 3553(a), the advisory guideline range of 97 to
121 months, and acknowledging that the advisory guideline range would have been
between 78 to 97 months had Outlaw received an additional 1 level reduction for
acceptance of responsibility,2 the court imposed a sentence of 78 months’
imprisonment. The government pointed out that an additional 1 level reduction for
acceptance of responsibility would have actually resulted in a range of 87 to 108
months. The court acknowledged its misstatement; however, the court determined
that based on the § 3553(a) sentencing factors a 78-month sentence was reasonable
and adequately served the purposes of punishment and deterrence based on the
seriousness of the offense and Outlaw’s prior drug convictions. The court
specifically stated that even if Outlaw had only be held accountable for 21 grams
of heroin, which would result in a guideline range of 24 - 30 months, the court still
would have imposed a 78-month sentence based on the § 3553 factors.
STANDARD OF REVIEW
A district court’s determination of drug quantity used to establish a
defendant’s base offense level is reviewed for clear error. United States v.
Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). The district court’s application of
the Sentencing Guidelines presents a mixed question of law and fact. United States
2
Since Outlaw had filed a motion to suppress, which was denied, the government declined
to recommend an additional one-level reduction for acceptance of responsibility.
6
v. Anderson, 326 F.3d 1319, 1326 (11th Cir. 2003). The Court reviews the
findings of fact for clear error, and its application of the sentencing guidelines to
those facts de novo. Id.
DISCUSSION
1. Drug Quantity
Outlaw argues that the district court’s drug quantity determination is not
supported by credible evidence and is not supported by adequate factual findings.
Outlaw asserts that the sole basis of the district court’s drug quantity determination
was Douglas’ testimony at sentencing and his prior statements used in the PSI.
Outlaw argues that the district court found that Douglas was not credible. Outlaw
further argues that the district court did not support its drug quantity determination
with adequate factual findings and that the only drug quantity supported by the
evidence in the record is 21 grams, the amount seized at the time of his arrest.
“When a defendant challenges one of the factual bases of his sentence as set
forth in the PSI, the government has the burden of establishing the disputed fact by
a preponderance of the evidence.” United States v. Edmonds, 348 F.3d 950, 953
(11th Cir. 2003) (per curiam) (quotation and alteration omitted). “It is the district
court’s duty to ensure that the Government carries this burden by presenting
reliable and specific evidence.” United States v. Lawrence, 47 F.3d 1559, 1566
7
(11th Cir. 1995). The necessity of requiring reliable evidence in support of the
government’s conclusions is particularly important in the case of a drug quantity,
since the amount of drugs attributed to a defendant can have a dramatic impact on
the sentence. Id. at 1567. “Although sentencing may be based on fair, accurate,
and conservative estimates of the quantity of drugs attributable to a defendant,
sentencing cannot be based on calculations of drug quantities that are merely
speculative.” United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998) (per
curiam).
Here, to prove drug quantity, the government only introduced Douglas’s
testimony. However, the district court expressly found Douglas’s testimony
regarding the drug quantity inconsistent and incredible. Despite these
inconsistencies, the district court found that Outlaw was responsible for
distributing 100 grams of heroin each week, the one amount Douglas testified that
he never provided to Outlaw for a period of three to four months. The district
court then determined that Outlaw was accountable for at least 700 grams but less
than 1 kilogram of heroin because the district court found that Outlaw did not sell
drugs every day during that three to four month time period. The record does not
support these findings. The district court’s calculation was without factual support
and was merely speculative as it was based on testimony that was inherently
8
inconsistent and unreliable. See Zapata, 139 F.3d at 1359; Lawrence, 47 F.3d at
1566. Therefore, the district court clearly erred in calculating the amount of drugs
attributable to Outlaw.
However, this does not end our inquiry. Recently, we issued an opinion in
United States v. Keene, ___ F.3d ___, 2006 WL 3431929 (11th Cir. Nov. 30,
2006), in which we stated that even if the sentencing court erred in calculating the
defendant’s Guideline range, we would review the sentence for reasonableness if
the sentencing court would have imposed the same sentence after considering the
factors in 18 U.S.C. § 3553(a). At sentencing, the district court specifically stated
that even if Outlaw was correct in that he could only be attributed with 21 grams of
heroin, he still would have imposed a sentence of 78 months based on the
circumstances of the case. If the court had only attributed approximately 21 grams
to Outlaw, his base offense level would have been 18 pursuant to U.S.S.G. §
2D1.1(c)(11). After subtracting 3 levels for acceptance of responsibility, Outlaw’s
total offense level would have been 15.3 With an adjusted offense level of 16 and a
criminal history category of III, Outlaw’s resulting guideline imprisonment range
would have been 24 - 30 months’ imprisonment. Accordingly, we must determine
whether a sentence of 78 months is reasonable pursuant to § 3553 under the 24 - 30
3
We subtract 3 levels for acceptance of responsibility because the district court implicitly
stated that it would have given Outlaw an additional one-level reduction.
9
month Guideline range.
“In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the
§ 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.
2006). These sentencing factors include: “(1) the nature and circumstances of the
offense; (2) the history and characteristics of the defendant; (3) the need for the
sentence imposed to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment; (4) the need to protect the public; and
(5) the Guidelines range.” United States v. Scott, 426 F.3d 1324, 1328-29 (11th
Cir. 2005) (citing 18 U.S.C. § 3553(a)). “[R]eview for reasonableness is
deferential, and the party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both the record and the
factors in section 3553(a).” United States v. Valnor, 451 F.3d 744, 750 (11th Cir.
2006) (quotation marks omitted).
Here, the record establishes that Outlaw was engaged in the sale of heroin
supplied by Douglas over a period of three to four months prior to his arrest and
was arrested carrying approximately 21 grams of heroin. The record demonstrates
that the district court imposed a 78-month sentence after considering the
seriousness of the offense and taking into account the need for Outlaw to have
10
more respect for the law. The court also considered Outlaw’s multiple prior drug
convictions, the need for punishment, effective deterrence, and the need to protect
the public. Although 78 months’ imprisonment is 48 months above the upper-end
of the advisory guideline range, we find that Outlaw is unable to carry his burden
of showing that the 78-month sentence was unreasonable given the sentencing
court’s considerations. See United States v. Eldick, 443 F.3d 783, 789-90 (11th
Cir. 2006) (per curiam) (concluding that the district court’s upward variance of 72
months was not unreasonable in light of the seriousness of defendant’s offense
conduct involving healthcare fraud and distribution of hydrocodone).
2. Fifth and Sixth Amendment Violations
Outlaw argues that the sentencing court’s reliance on Douglas’s testimony to
establish relevant conduct that increased the amount of drugs attributable to him
violated his Fifth and Sixth Amendment rights. However, we need not address
these arguments since Outlaw’s sentence was not based this relevant conduct.
Accordingly, we find no reversible error and affirm Outlaw’s sentence.
AFFIRMED.
11