United States v. Rollen , 239 F. App'x 451 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 21, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-1017
v. (D. Colorado)
DEON ROLLEN, also known as (D.C. No. 04-CR-514-EW N-1)
Deacon,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, B AL DOC K, and HO LM ES, Circuit Judges.
I. IN TR OD UC TIO N
Defendant-Appellant Deon Rollen entered an oral guilty plea to nineteen
counts arising from a conspiracy to manufacture and distribute crack cocaine. A t
sentencing, Rollen challenged the drug quantity calculation included in the
Presentence Investigation Report (“PSR”) and used to calculate his base offense
level. The district court rejected Rollen’s challenge and concluded Rollen was
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
responsible for “in excess of eleven kilograms of crack” during just a portion of
the conspiracy period, a quantity significantly higher than the 1.5 kilograms
necessary to place Rollen at a base offense level of thirty-eight.
On appeal, Rollen renews his objection to the district court’s drug quantity
calculation. He also argues his sentence is substantively unreasonable.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this
court determines the district court’s drug quantity calculation was supported by a
preponderance of the evidence. This court also concludes Rollen’s sentence is
substantively reasonable. Rollen’s sentence is therefore affirm ed.
II. BACKGR OU N D
Rollen, along with several other indicted individuals, was involved in a
drug trafficking conspiracy in Colorado beginning in January 2003 and ending in
December 2004. Rollen entered a guilty plea to one count of conspiracy to
distribute and possess with the intent to distribute five kilograms or more of a
mixture or substance containing a detectable amount of cocaine or fifty grams or
more of a mixture and substance containing a detectable amount of cocaine base,
in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A); three counts of
possession with intent to distribute a substance containing a detectable amount of
cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); seven counts of
distribution and intent to distribute five grams or more of cocaine base, in
-2-
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii); and seven counts of using a
communication facility to facilitate the conspiracy, in violation of 21 U.S.C.
§ 843(b). Rollen also pleaded guilty under the criminal forfeiture statute
applicable to drug crimes. See 21 U.S.C. § 853. Rollen admitted he purchased
drugs, cooked powder cocaine into crack cocaine, sold drugs to other individuals,
and knew that the others resold the drugs he provided. In exchange for Rollen’s
plea, the government agreed to recommend a 216-month prison sentence.
At Rollen’s change of plea hearing, the government alleged that, based on
its wiretap surveillance and other investigation, Rollen was “near the top” of a
hierarchical conspiracy. The government stated its evidence would have show n
that over a period of almost two years, Rollen purchased powder cocaine from
several individuals, particularly co-defendant Richard Powell, went to the home
of two co-defendants, Perry Syrie and Derrick W iley, to cook the powder cocaine
into crack cocaine, and distributed crack cocaine to Syrie and Wiley for
redistribution to other sellers. The government stated the wiretap evidence
collected in the fall of 2004 demonstrated Rollen visited Syrie’s house two or
three times per week and distributed two to three ounces of crack cocaine to Syrie
and W iley on each occasion. The government also indicated that early in the
conspiracy period, during 2003, when Syrie and Wiley lived at a different
residence, Rollen cooked between four-and-a-half and nine ounces of powder
cocaine at their apartment two to three times per week. Syrie and W iley would
-3-
then sell the crack cocaine on Colfax Avenue in Denver either to end-users or
other redistributors. Rollen was usually paid little or nothing when he provided
the crack to Syrie and Wiley but expected payment after the drugs had been
resold.
In response to the government’s evidence, Rollen asserted the government
“had a lot of things right on the nose.” He did, however, contend the government
was mistaken in assuming that every wiretapped conversation between himself
and Syrie and Wiley involved a discussion about repayment for crack cocaine,
since he also sold marijuana. He also indicated that not every trip to the home of
Syrie and Wiley involved cooking crack cocaine because problems with the
cocaine powder sometimes prevented the manufacture of crack.
The PSR relied on the government’s sentencing statement when assessing
Rollen’s offense conduct. Prepared after the conclusion of co-defendant Powell’s
trial at which Syrie and others involved in the conspiracy testified, the PSR
indicated Syrie “reported and testified” he received a minimum of three to five
ounces of crack cocaine from Rollen each week between August 2003 and
November 2003. The PSR also stated that, between December 2003 and M arch
2004, Rollen supplied two to four ounces of crack cocaine per week to Syrie and
W iley and that several controlled buys of crack cocaine originating with Rollen
were made in M arch, April, and August 2004. Additionally, according to the
PSR , from April 2004 to December 2004, Syrie purchased two to four ounces of
-4-
crack cocaine from Rollen 1 ; another co-defendant, Akinlabi Coleman, testified he
purchased four ounces of crack cocaine three times per week from Rollen between
July 2004 and November 2004; W iley was supplied with one or two ounces of
crack cocaine by Rollen during this same period in 2004. Based on this
information, the PSR concluded ten kilograms or more of cocaine base were
involved in Rollen’s offenses and, therefore, Rollen’s base offense level was
calculated as thirty-eight. The PSR recommended a three-point departure for
acceptance of responsibility, resulting in a total offense level of thirty-five.
Combined with his criminal history of Category IV, Rollen’s sentencing range
under the advisory Sentencing Guidelines was 235 to 293 months’ imprisonment.
The probation officer recommended the court impose a 250-month concurrent
prison term, as well as a sixty-month term of supervised release.
Rollen objected to the drug quantity calculation contained in the PSR.
Although he did not take issue with any of the very specific statements in the
PSR , he asserted his conduct involved less than five kilograms of powder cocaine
and, as a result, pursuant to U.S.S.G. § 2D1.1, his base offense level should have
been thirty.
1
It is unclear from the PSR whether Syrie purchased two to four ounces of
crack each time Rollen visited his home during this period or whether he
purchased two to four ounces of crack total. Given the government’s statements
at the change of plea hearing, the district court construed the amounts Syrie
purchased from Rollen to be per-visit am ounts. Rollen does not contest this
assumption.
-5-
At the sentencing hearing, the court rejected Rollen’s challenge. It stated
that, at the change of plea hearing, Rollen had not objected to the government’s
contention that he met with Syrie and other individuals two to three times per
week in the fall of 2004 and cooked two to three ounces of crack cocaine on each
occasion. Accordingly, the court stated,
Taking the most conservative figures in this limited time
range, this would be at least 1 kilogram of cocaine during this period
alone.
The Government also represented that during 2003, the
quantities cooked on each occasion were higher, 4.5 ounces on each
occasion. 2 Given the number of weeks in the year and the frequency
of the defendant’s visits to M r. Syrie, the Court concludes that in
excess of 11 kilograms of crack was involved in 2003.
Notwithstanding its eleven-kilogram estimate, however, the district court
observed that “1.5 kilos of crack cocaine suffices to place the defendant at Base
Offense Level 38. Therefore . . . there can be no question that the defendant has
under oath admitted conduct placing him well w ithin this level.”
Rollen himself then addressed the court. He admitted he did not know how
much crack cocaine he sold, but urged the court that, despite the government’s
2
At the change of plea hearing, the government represented the 4.5 to 9
ounce figure as “powder cocaine.” In the court’s recitation of the government’s
evidence, however, the court seems to treat the 4.5 ounce quantity as crack
cocaine. Because Rollen did not object to or even take note of this discrepancy
either in the court below or on appeal, this court assumes the government simply
misspoke at the change of plea hearing and that it intended to say Rollen cooked
and distributed 4.5 to 9 ounces of crack cocaine two to three times per w eek in
2003.
-6-
characterization, he was not a “major kingpin.” In particular, he stated he did not
cook crack cocaine or give drugs to Syrie, a friend of twenty years, every time he
went to Syrie’s house. The court responded it had heard testimony from Syrie at
trial on the matter and reiterated it found Rollen responsible for at least eleven
kilograms of cocaine base. The court ultimately sentenced Rollen to a within-
Guidelines sentence of 264 months’ imprisonment. As part of its consideration of
the factors set out at 18 U.S.C. § 3553(a), the court commented that Rollen w as a
“central figure” in the case and not particularly remorseful for his conduct. The
court also ordered Rollen to serve a five-year term of supervised release upon
completion of his prison term and required him to pay a special assessment of
$1800.
III. D ISC USSIO N
A. Drug Q uantity Used for Sentencing Purposes
On appeal, Rollen contests the district court’s drug quantity calculation.
He first argues he should only have been held responsible for the 169 grams of
crack cocaine included in the indictment, rather than the eleven-kilogram quantity
for which the district court determined him responsible. Rollen next contends the
court erred by failing to rule on the disputed portions of the PSR affecting his
sentence, as required by Federal Rule of Criminal Procedure 32(i)(3)(B).
Furthermore, Rollen asserts there was insufficient independent corroborating
-7-
evidence to support the government’s estimate of the drug amounts attributable to
him because co-defendant Syrie’s testimony was inherently unreliable and
informant Lora W ilson’s out-of-court statements did not mention drug quantities.
Finally, Rollen challenges the method by which the district court arrived at its
eleven-kilogram calculation, arguing the court improperly extrapolated from his
drug activity during a four-month period in 2004 to arrive at a total drug quantity
attributable to him during the entire course of the conspiracy.
At sentencing, the government bore the burden of proving by a
preponderance of the evidence the quantity of drugs attributable to Rollen for
sentencing purposes. United States v. Ryan, 236 F.3d 1268, 1273 (10th Cir.
2001). “W hen the actual drugs underlying a drug quantity determination are not
seized, the trial court may rely upon an estimate . . . so long as the information
relied upon has some basis of support in the facts of the particular case and bears
sufficient indicia of reliability.” United States v. Dalton, 409 F.3d 1247, 1251
(10th Cir. 2005) (quotations omitted). In a drug conspiracy case, the defendant is
accountable for all quantities with which he was directly involved and all
quantities which would have been reasonably foreseeable within the scope of the
jointly undertaken criminal enterprise. United States v. Lauder, 409 F.3d 1254,
1267 (10th Cir. 2005) (citing U.S.S.G. §1B1.3 cmt. n.2).
This court reviews the district court’s drug quantity calculation for clear
error. Ryan, 236 F.3d at 1273. Reversal is appropriate only if the record lacks
-8-
factual support or “we are left with a definite and firm conviction that a mistake
has been made.” Id. (quotation omitted). W hen the district court relies upon
witness testimony in making its drug quantity calculation, this court defers to the
district court’s determinations of witness credibility. United States v. Browning,
61 F.3d 752, 754 (10th Cir. 1995).
The district court’s drug quantity determination in this case was not clearly
erroneous. Nothing precluded the government from presenting evidence of drug
quantities in excess of those included in the indictment for sentencing purposes
and nothing prevented the court from finding Rollen responsible for quantities in
excess of the indicted amounts because the district court’s sentence did not
exceed the statutory maximum sentence of life imprisonment for which Rollen
was eligible. See United States v. W ilson, 244 F.3d 1208, 1216 (10th Cir. 2001);
see also 21 U.S.C. § 841(b)(1)(A)(iii) (prescribing statutory maximum of life
imprisonment).
M oreover, the court satisfactorily responded to Rollen’s objections at
sentencing by explaining the basis for its calculation. United States v. W illiams,
374 F.3d 941, 947 n.9 (10th Cir. 2004). Because 1.5 kilograms of crack cocaine
is all that is required to arrive at a base offense level of thirty-eight, see U.S.S.G .
§ 2D1.1(c)(1), in order to affirm the district court’s calculation of Rollen’s
advisory Guidelines sentencing range, this court must merely be satisfied the
record supports a finding that 1.5 kilograms is attributable to Rollen. See United
-9-
States v. Humphrey, 208 F.3d 1190, 1209–10 (10th Cir. 2000) (holding harmless
any error in district court’s drug quantity determination where undisputed
quantity of drugs was enough to place defendant at the base offense level
calculated by the district court). The trial court admittedly did not calculate the
precise drug quantity attributable to Rollen, stating that “in excess of eleven
kilograms of crack was involved in 2003” and that Rollen was responsible for “at
least one kilogram of cocaine” during the 2004 wiretap period. The record,
however, indicates there w as more than enough evidence from which the court
could have concluded Rollen was responsible for at least 1.5 kilograms of crack
cocaine over the entire January 2003 to December 2004 period of the conspiracy. 3
Furthermore, the evidence the court relied upon in calculating the drug
quantity attributable to Rollen bore sufficient indicia of reliability. The
3
Although it is unclear from the record how the district court arrived at its
calculation, a rough estimate based on the government’s allegations and the
court’s statements indicate Rollen was probably responsible for far more than the
eleven kilograms of crack cocaine found by the district court.
The government’s evidence was that, from September 2004 to December
16, 2004, the period when Rollen’s phone was wiretapped, Rollen cooked crack
cocaine at the residence of Syrie and Wiley two to three times per week and
distributed two to three ounces of crack cocaine to Syrie on each visit during this
time period. Assuming, conservatively, Rollen distributed two ounces of crack
cocaine twice per week for fourteen weeks, he would have distributed a total of
fifty-six ounces, or just over 1.5 kilograms of crack cocaine. Additionally, at
Rollen’s change of plea hearing, the government indicated that during 2003,
Rollen cooked 4.5 to 9 ounces two to three times per week. Assuming again,
conservatively, that Rollen cooked only 4.5 ounces two times per week each
week, he would have been responsible for 468 ounces, or 13.3 kilograms, of crack
cocaine in 2003.
-10-
government provided specific information about the quantity of cocaine Rollen
cooked on each visit to the residence of Syrie and W iley during at least two
distinct time periods and about the quantities Rollen provided to other individuals
over the course of the conspiracy. The government based its assertions on an
informant’s statements regarding Rollen’s activities, Syrie’s statements prior to
co-defendant Pow ell’s trial, and the trial testimony of Syrie and other co-
conspirators. The court had the opportunity to assess the credibility and
reliability of that testimony throughout Pow ell’s trial. Rollen’s mere suggestion
that Syrie’s testimony is inherently unreliable because of Syrie’s self-interested
motive for testifying is not enough to override the general rule regarding the
district court’s role in evaluating witness credibility. 4 See Browning, 61 F.3d at
754.
Finally, the district court did not improperly extrapolate the amount of
crack cocaine for which Rollen was responsible. The court was entitled to
estimate drug quantity in any reliable manner it chose, including computing
4
Rollen takes issue with the PSR’s statement as to what Syrie “reported and
testified to” and asserts Syrie did not testify at Pow ell’s trial to all the
information attributed to him in the PSR. Rollen, however, did not include
Syrie’s trial testimony in the record on appeal. This court is thus unable to
review for itself whether Syrie’s testimony did or did not contain the statements
attributed to him in the PSR. In any event, a sentencing court is permitted to rely
on out-of-court statements so long as those statements bear indicia of reliability.
As a consequence, the district court was well within its discretion to consider
Syrie’s unsworn statements to law enforcement as well as Syrie’s trial testimony
when sentencing Rollen. See United States v. Shewmaker, 936 F.2d 1124, 1129
(10th Cir. 1991).
-11-
quantity based on the frequency and amount of drug manufacturing and
distribution over a given period of time. See United States v. Powell, 982 F.2d
1422, 1435 (10th Cir. 1992) (quotation omitted). Based on this court’s review of
the record, the district court appropriately and conservatively based its drug
quantity calculation on the government’s lowest estimates of both the frequency
of Rollen’s visits to Syrie and Wiley and the quantity of crack cocaine cooked on
each visit during each of two distinct time periods. There was no error in this
approach.
B. Substantive Reasonableness of Rollen’s Sentence
Having determined Rollen’s base offense level was properly calculated, this
court applies a presumption of reasonableness to Rollen’s sentence. 5 United
States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); see also Rita v. United
States, 127 S. Ct. 2456, 2463 (2007) (approving appellate court application of
presumption of reasonableness to properly calculated within-Guidelines
sentences). A defendant can rebut a presumptively reasonable sentence only by
demonstrating the sentence is unreasonable when considered against the other
factors enumerated in 18 U.S.C. § 3553(a). Kristl, 437 F.3d at 1054.
5
On appeal, Rollen resurrects a challenge to the number of criminal history
points used to calculate his criminal history category. Rollen explicitly
abandoned this objection to the PSR before the district court and has, therefore,
waived this argument on appeal. Rollen does not otherwise challenge the
procedures the district court used to arrive at a sentence.
-12-
Rollen’s sole substantive challenge to the reasonableness of his 264-month
sentence focuses on the disparity under the advisory Guidelines between crack
cocaine and powder cocaine offenses. There is certainly no obligation on the part
of a district court to take into account this G uidelines’ disparity as part of its
§ 3553(a) analysis. As a result, the nature of Rollen’s offenses as crack cocaine
offenses cannot make his sentence substantively unreasonable. 6 See United States
v. M cCullough, 457 F.3d 1150, 1171–72 (10th Cir. 2006).
6
Although neither have any bearing on this court’s disposition of Rollen’s
case, Rollen correctly notes the Guidelines’ disparity has been called into
question. The Sentencing Commission has recently proposed an amendment to
the Sentencing Guidelines which w ould modify the G uidelines’ current 100-to-1
crack-to-powder ratio in sentencing. See Sentencing Guidelines for United States
Courts, 72 Fed. Reg. 28,558, 28,571–73 (M ay 21, 2007) (notice of submission to
Congress of amendment). The Guidelines themselves will not be modified
however, absent congressional action to stop the modification, until November 1,
2007. See id. at 28,558. Even if the amendment does take effect, there is no
guarantee it w ill apply retroactively to previously sentenced defendants. See
Sentencing Guidelines for United States Courts, 72 Fed. Reg. 41,794, 41,794
(July 31, 2007) (notice seeking public comment on retroactivity of Guidelines
amendment).
Additionally, the Supreme Court is scheduled to hear oral argument in
October 2007 on a related, but different, question. In United States v.
Kim brough, the district court imposed a below-Guidelines sentence on a
defendant convicted of crack cocaine offenses based on the court’s policy
disagreement with the Guidelines’ disparity in sentencing ranges between crack
and powder cocaine offenses. 174 F. App’x 798, 799 (4th Cir. 2006), cert.
granted, 127 S. Ct. 2933 (June 11, 2007) (N o. 06-6330). The Fourth Circuit held
such a below-G uidelines sentence per se unreasonable. Id.-13-
IV . C ON CLU SIO N
Because the district court did not err w hen calculating the drug quantity
attributable to Rollen or when imposing Rollen’s sentence, the sentence imposed
by the district court is A FFIR M ED.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
-14-