United States v. White, Bradley G. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2478
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRADLEY G. WHITE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02 CR 40028—J. Phil Gilbert, Judge.
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ARGUED JANUARY 27, 2004—DECIDED MARCH 10, 2004
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Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
PER CURIUM. A jury found Bradley White guilty of
maintaining a place to manufacture drugs, 21 U.S.C.
§ 856(a)(1), attempting to manufacture more than 50 grams
of a mixture or substance containing methamphetamine, id.§§ 841(a)(1), 846, and possession of a firearm by a felon, 18
U.S.C. § 922(g)(1). For guidelines purposes, the district
court attributed 84.14 grams of methamphetamine to
White, yielding a base offense level of 26. The court then
added two levels for possession of a weapon during the
commission of a drug offense, U.S.S.G. § 2D1.1(b)(1), and
two levels for obstruction of justice, id. § 3C1.1. White’s
total offense level of 30 and Category II criminal history
2 No. 03-2478
triggered a resulting imprisonment range of 108 to 135
months, and the court sentenced White to concurrent
sentences of 135 months. White appeals only his sentence
and contends that the district court overstated the drug
quantity.
Police officers executed a search warrant at White’s house
in Janesville, Illinois. White and two women, Angela
Pheiffer and Peggy Moritz, were present during the search,
which disclosed 1.8 grams of methamphetamine, several
precursor chemicals including 31.4 grams of pseudo-
ephedrine, seven firearms, and ammunition. Officers also
located a white plastic jug under a bathroom vanity, and
transferred the contents of that jug into two vials. Both
vials were sent to the Illinois State Police laboratory. Test-
ing of one vial, weighing 23.9 grams, determined that the
substance contained methamphetamine. The other vial
weighed 20.4 grams but was not tested.
A chemist employed by the Drug Enforcement
Administration testified that the 31.4 grams of pseudo-
ephedrine were enough to manufacture 11.5 grams of
methamphetamine. At trial, five witnesses testified that
White had sold methamphetamine (at $100 per gram).
Pheiffer testified that White had told her he grossed
$5,000—equivalent to sales of 50 grams—per week. Crystal
Vincent testified that she purchased half grams of metham-
phetamine from White on five to ten occasions. Moritz
testified that she purchased two or three grams twice and
sometimes three times per week, and spent between $5,000
and $10,000 overall. James Heath testified that he bought
quarter- or half-gram amounts ten times, that he bought
one gram three or four times, and that White paid him for
work in quarter- or half-gram amounts 15 to 20 times.
William Price testified that he bought $50 to $100 worth of
methamphetamine every day for two years. The probation
officer’s report omitted all of this information. Instead, it
recounted a statement Pheiffer made to authorities that
No. 03-2478 3
White had sold one-eighth of an ounce (3.54 grams) of
methamphetamine the night before the raid. It also re-
ported that Vincent had said in a pretrial interview with
government agents that she had purchased half grams
twice per week for 23 weeks. The report made no mention
of Moritz, Heath, or Price.
The court accepted the probation officer’s recommenda-
tion and attributed 84.14 grams of methamphetamine to
White from six sources: (1) 23.9 grams from the tested vial;
(2) 20.4 grams from the untested vial; (3) 1.8 grams found
in the house; (4) 11.5 grams that could theoretically be
produced from the pseudoephedrine found in the house; (5)
3.54 grams based on Pheiffer’s interview; and (6) 23 grams
based on Vincent’s interview. Neither the court nor the
probation officer addressed any of the witness testimony
from trial. The court then sentenced White under U.S.S.G.
§ 2D1.1(c)(7) for at least 50 grams, but less than 200 grams
of methamphetamine.
On appeal White challenges the inclusion of the vial
weighing 20.4 grams because its contents were never tested,
as well as the drug amounts derived from the statements of
Pheiffer and Vincent, which he says were not credible. We
review a sentencing court’s determination of drug quantity
for clear error. United States v. Chatmon, 324 F.3d 889, 892
(7th Cir. 2003). For guidelines purposes, the government
need only establish drug quantity by a preponderance of the
evidence, and the court may consider information that
would not otherwise have been admissible at trial. United
States v. Galbraith, 200 F.3d 1006, 1011-12 (7th Cir. 2000).
White’s first argument, that the contents from the
untested vial cannot be factored into the drug quantity, gets
him nowhere. White’s premise is that absent chemical
analysis the contents of the disputed vial cannot be known
even though both vials were filled at the same time from
the same source and the other vial tested positive for
4 No. 03-2478
methamphetamine. Inspector Hank Graves testified that he
personally witnessed the contents of the plastic jug being
emptied into the two vials. He testified that both containers
were then sealed, and that each was marked with a sticker
every time it was transferred to a new location to maintain
a chain of custody. The court found that the contents of the
two vials were the same. White offers us no reason to
believe this finding to be clearly erroneous, and we thus
cannot conceive of any reason why chemical analysis of the
second vial’s contents would have yielded a result different
from the first.
White’s second argument is that the district court should
have disregarded the information provided by Vincent and
Pheiffer because each is an admitted methamphetamine
user, and neither was prosecuted for her role in White’s
drug enterprise. But determinations of witness credibility
are entitled to great deference and “can virtually never
be clear error.” United States v. Blalock, 321 F.3d 686,
690 (7th Cir. 2003) (internal quotation marks and citation
omitted). It is permissible for a sentencing court to calculate
drug quantity by taking a witness’s estimate of the amount
of drugs she usually purchased and multiplying it by the
number of times she bought drugs from the defendant.
United States v. Durham, 211 F.3d 437, 444 (7th Cir. 2000).
Furthermore, the sentencing court may credit testimony
that is “totally uncorroborated and comes from an admitted
liar, convicted felon, or large scale drug-dealing, paid
government informant.” Blalock, 321 F.3d at 690 (internal
quotation marks and citation omitted); see also Galbraith,
200 F.3d at 1012. Our role is not to second-guess the district
court’s credibility determinations, and White points to
nothing that justifies a finding of clear error by the district
judge in crediting the testimony of Vincent and Pheiffer.
There is one issue with Vincent’s testimony. At trial
she testified that she purchased methamphetamine from
White in half-gram increments five to ten times, which
No. 03-2478 5
would yield a total of 2.5 to 5 grams. But the report of
Vincent’s pretrial interviews says that she purchased half
grams twice a week over a 23-week period from late sum-
mer 2001 until February 2002. The court used this second
statement to attribute 23 grams to White. Where a sentenc-
ing court chooses to rely on one of two contradictory state-
ments made by a witness, it should address the contradic-
tion and explain why it credits one statement over the
other. United States v. Span, 170 F.3d 798, 803 (7th Cir.
1999); United States v. McEntire, 153 F.3d 424, 437 (7th
Cir. 1998); United States v. Acosta, 85 F.3d 275, 282 (7th
Cir. 1996); United States v. Duarte, 950 F.2d 1255, 1266
(7th Cir. 1991). The court did not do so here, but the error
is harmless because, as the judge recognized at the sentenc-
ing hearing, even if he reduced the amount of methamphet-
amine based on Vincent’s testimony to the minimum of 2.5
grams, White’s base offense level would be unaffected
because the total attributed to him would still exceed 50
grams. See U.S.S.G. § 2D1.1(c)(7). Moreover, there was a
wealth of other trial testimony from Moritz, Heath, and
Price that the district court did not even address in calcu-
lating the drug quantity.
Lastly, we note that White received a concurrent sentence
of 135 months on each of the three counts. The statutory
maximum for violating 18 U.S.C. § 922(g)(1) is 120 months.
See 18 U.S.C. § 924(a)(2). Accordingly—although it will not
reduce the amount of time White spends in prison—we
vacate the term of imprisonment on this count only and
remand with instructions for the district court to impose a
concurrent term within the statutory limit. We affirm
White’s sentence in all other respects.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
6 No. 03-2478
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-10-04