United States v. Clark, Rickey ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1297
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ICKEY C LARK ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1129—Joan B. Gottschall, Judge.
____________
A RGUED A PRIL 15, 2008—D ECIDED A UGUST 19, 2008
____________
Before C UDAHY, K ANNE, and SYKES, Circuit Judges.
K ANNE, Circuit Judge. Rickey Clark entered a blind guilty
plea with respect to one count of conspiring to possess
cocaine with intent to distribute, see 21 U.S.C. § 846, and
one count of possessing cocaine with intent to distribute,
see id. § 841(a)(1). The district court determined by a
preponderance of the evidence that Clark had possessed
between 15 and 50 kilograms of cocaine. At the sentencing
hearing, the government’s attorney repeatedly stated, in
2 No. 07-1297
error, that Clark was not subject to a mandatory minimum
sentence. The judge considered the 18 U.S.C. § 3553(a)
sentencing factors and imposed a sentence of 48 months’
imprisonment. The very next day, the government filed a
motion to correct the sentence, see Fed. R. Crim. P. 35(a),
based on the fact that the court was required to impose a
mandatory minimum sentence of ten years due to the
quantity of cocaine Clark possessed, see 21 U.S.C.
§ 841(b)(1)(A)(ii). The court agreed that the mandatory
minimum applied, and it amended the judgment to cor-
rect the sentence. Because the district court acted within
its power under Federal Rule of Criminal Procedure 35(a)
when it corrected Clark’s sentence to reflect the statutory
mandatory minimum, we affirm Clark’s sentence.
I. H ISTORY
Rickey Clark was charged in a multi-count indictment
for his participation in a cocaine-distribution conspiracy.
Without a written plea agreement from the government,
Clark pled guilty to two of the charged counts: conspiring
to possess cocaine with intent to distribute, id. § 846, and
possessing cocaine with intent to distribute, id. § 841(a)(1).
Clark did not admit that his offenses involved a
particular quantity of cocaine, and he maintained through-
out the proceedings that he possessed less than one
kilogram. He also argued that the quantity of drugs at
issue is an element of his 21 U.S.C. § 841 offense, and that
the Fifth and Sixth Amendments precluded subjecting
him to an enhanced sentence based on a drug quantity
No. 07-1297 3
that was not determined by a jury beyond a reasonable
doubt. At the drug-quantity hearing, the district court
pointed out that the Seventh Circuit has rejected similar
constitutional arguments, and proceeded to decide the
drug quantity by a preponderance-of-the-evidence stan-
dard.
The government called Juan Corral as a witness at the
drug-quantity hearing. Corral was a cocaine dealer who
had spent time in prison for drug-trafficking convictions.
Clark was one of Corral’s repeat, multiple-kilogram
customers between the months of February and June, 2002.
During that time period, Corral’s sales of cocaine to
Clark varied in quantity and frequency. Corral
experienced some “droughts,” during which Corral’s
suppliers could not provide him with cocaine. But, Corral
explained, Clark was one of his “preferred” custom-
ers—whenever Corral came off of a drought, Clark was
one of the first customers he would call.
Corral shared how he and Clark would arrange their
meetings. They would talk over the phone and arrange a
meeting place. They used code words to refer to kilograms
of cocaine, including the terms “bench press,” “reps,” and
“tickets.” Corral recounted one particular conversation
he had with Clark, on June 5, 2002, in which the two
men referred to the kilograms of cocaine as “tickets.” He
said that Clark had asked for five tickets (kilograms), but
that he was trying to get Clark to take six. Corral said he
had no doubt in his recollection that on June 5, he and
Clark talked about kilograms of cocaine.
In recalling his encounters with Clark, Corral stated that
the smallest amount of cocaine he sold Clark on one
4 No. 07-1297
occasion was three kilograms; the largest amount was
around eight kilograms. The amount of cocaine that Clark
most frequently purchased from Corral was five to six
kilograms. Corral stated that he was “100 percent sure”
that when Clark bought cocaine from him, he bought three
or more kilograms at a time. Corral recalled, “to the best of
[his] knowledge,” that he dealt with Clark about once a
month. Based on those recollections, Corral estimated that
he sold Clark “maybe 17 kilos” of cocaine during the five-
month period. Corral thought that he dealt with Clark one
time in February, and maybe twice in March. But he could
not give estimates for April, May, or June. Corral did not
remember the specific dates on which he sold cocaine to
Clark. Corral explained how he arrived at the 17-kilogram
estimate, which he felt was conservative: “I dealt with him
from February 2002 to June 2002. And I [estimated] three
keys a month, that would come out to 15. And I know
for sure that he purchased at times more than three keys.”
When considering the testimony, the district court
explained that standing alone, Corral’s memory of the sales
to Clark was not “good enough to send somebody away
for.” The court then asked the government how many
conversations between Corral and Clark they had
recorded—“how many discussions about transactions is
the Government actually able to prove with telephone
calls?” The government then referred to the complaint
affidavit, which detailed some of the wiretapped con-
versations. During one such conversation, on May 14,
Corral and Clark discussed five kilograms of cocaine.
Another set of wiretapped conversations dealt with the
June 5 transaction to which Corral testified and addressed
No. 07-1297 5
five to six kilograms of cocaine. The district court deter-
mined that these two phone conversations corroborated
Corral’s testimony that his drug deals with Clark hap-
pened once a month.
The government, however, did not introduce into
evidence the actual transcripts or tapes of the wiretapped
phone calls. The court instead relied on summaries of the
wiretapped conversations contained in a complaint
affidavit that was attested to by a drug-trafficking agent
in the government’s efforts to show probable cause
before a magistrate judge. Clark objected to the district
court’s reliance on the complaint and its affidavit, because
“defendants are not included in terms of drafting the
complaint, can’t cross-examine the drafter of it, can’t
make any changes, can’t make any suggestions. It’s the
Government’s document which they submit.”
The district court stated that the summarized wire-
tapped conversations were “irrefutable evidence that
[Clark] was discussing relatively large deals, that’s deals
in the five-to-six kilogram range with Mr. Corral on two
occasions.” Those conversations proved to the judge that
Corral was “telling the truth in terms of the kind of cus-
tomer that Mr. Clark was.” Even though the tapes were
not in evidence, the district court “assum[ed] the Gov-
ernment ha[d] this evidence that it [was] describing in
the complaint.” The court explained that the govern-
ment’s summary of the taped conversations was, to some
extent, corroborated by Corral. Additionally, the court
explained, “This is an official court document. So I’m
assuming, for purposes of this drug quantity hearing,
6 No. 07-1297
where the standard is a preponderance of the evidence,
and I don’t think rules of evidence strictly apply, that
I can rely on the Government’s assertion that this com-
plaint is based on surveillance.”
Clark also argued that the court should discredit Corral’s
testimony because Corral was an admitted perjurer who
had a deal with the government that was contingent on
him testifying to certain things. The district court did not
agree, and found that Corral was “trying to be truthful
and [ ] trying to be conservative,” even though his preci-
sion was less than satisfactory. Thus, while Corral’s
testimony alone was not precise enough, in the district
court’s view, to justify a 15-kilogram drug-quantity
finding, the combination of Corral’s testimony with the
summarized wiretaps convinced the court that Clark’s
offense involved more than 15 kilograms of cocaine.
Shortly after the drug-quantity hearing, Clark appeared
for sentencing on January 17, 2007. The district court
began the sentencing hearing with a question about
mandatory minimums: “Is there a mandatory minimum
that applies in this case?” The Assistant United States
Attorney (AUSA) replied, “There is not, Judge, and the
presentence investigation report is incorrect in regard to
that.” The AUSA explained that without the mandatory
minimum, Clark’s sentencing range was 108 to 135 months’
imprisonment; his Criminal History Category was I and
his offense level was 31. The court repeated its question:
“Okay. With no mandatory minimum?” The AUSA replied,
“Right.”
Clark argued for a sentence below the guidelines range
because of his personal characteristics, his steady employ-
No. 07-1297 7
ment background, and the fact that he had no prior
criminal convictions. Clark also argued that he deserved
a sentence below the guidelines range because of the weak
evidence demonstrating drug quantity. In response, the
government urged the district court to sentence Clark
within the guidelines range: “the Government would
just argue that a guideline range is appropriate here,
particularly given that the mandatory minimum does
not apply . . . .”
The district court viewed Clark’s cocaine-selling activi-
ties as a “significant mistake,” but stated that the “rest of
his life has been pretty good.” The court cited Clark’s
minor criminal history, his “huge job stability,” and the
fact that he is a family man, as factors indicating that he
is a person who “appears to have a good life and a posi-
tive life.” The court also took into consideration negative
factors—such as Clark’s gambling problems and his
new conviction for a serious felony drug offense—when
analyzing the sentencing factors under 18 U.S.C. § 3553.
The judge decided on a sentence of 48 months, to reflect
the “seriousness of the offense,” while giving Clark “an
opportunity to resume the positive aspects of his past
life when he is released.”
The very next day, the government submitted a motion
to correct Clark’s sentence, pursuant to Federal Rule of
Criminal Procedure 35(a). The government acknowl-
edged the mistake it made at sentencing in insisting that
no mandatory minimum applied to Clark’s offense. The
government argued that the district court was required
to impose the mandatory minimum prescribed by 21
8 No. 07-1297
U.S.C. § 841(b)(1)(A)(ii), because of the 15 kilograms
attributed to Clark’s offense by the court. The district court
agreed that the court’s drug-quantity finding subjected
Clark to the statutory mandatory minimum. The district
court explained that, while “the court was able to deter-
mine the drug quantity based on a preponderance of the
evidence, [the court] does not believe that the evidence
would have been sufficient to sustain a decision beyond
a reasonable doubt.” The court exercised jurisdiction
under Rule 35(a) and resentenced Clark to ten years in
prison.
II. A NALYSIS
On appeal, Clark argues that the district court was not
authorized under Rule 35(a) to change his sentence. He
also argues that his Fifth and Sixth Amendment rights
were violated when the district court found, by a prepon-
derance of the evidence, facts that subjected him to a
mandatory minimum sentence of ten years. Finally, he
argues that the district court’s calculation of the quantity
of drugs involved in his offense was clearly erroneous.
A. The district court’s correction of Clark’s sentence
Clark argues that the district court was not authorized
to correct his sentence under Rule 35(a) to reflect
the statutory mandatory minimum because, in Clark’s
opinion, the Rule does not allow a correction in a case
where the government waived the application of the
mandatory minimum at the sentencing hearing. This
No. 07-1297 9
presents a question of law that we review de novo. See
United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007)
(“Whether the district court followed the proper proce-
dures after United States v. Booker in imposing [a] sentence
is a question of law we review de novo.” (internal citation
omitted)).
Rule 35(a) allows for “Correcting Clear Error”: “Within
7 days after sentencing, the court may correct a sentence
that resulted from arithmetical, technical, or other clear
error.” Fed. R. Crim. P. 35(a). The district court’s action in
this case—correcting the sentence the day after it was
imposed—falls within the parameters of Rule 35(a). The
error was not arithmetical or technical, but instead was
substantive—the court mistakenly failed to apply the
mandatory minimum sentence for Clark’s conviction, as
prescribed by Congress. See 21 U.S.C. § 841(b)(1)(A)(ii).
The scope of Rule 35(a) is narrow; the advisory com-
mittee notes indicate that the Rule should “extend only to
those cases in which an obvious error or mistake has
occurred in the sentence, that is, errors which would
almost certainly result in a remand of the case to the trial
court . . . .” Fed. R. Crim. P. 35 advisory committee’s note
to 1991 Amendments. The Rule does not give the district
court a second chance to exercise its “discretion with
regard to the application of the sentencing guidelines,” nor
does it allow for changes to a sentence based on the court’s
change of mind. Id. Additionally, the Rule should not be
used in a way that relaxes “any requirement that the
parties state all objections to a sentence at or before the
sentencing hearing.” Id.
10 No. 07-1297
Clark clings to this last limitation on Rule 35(a), and
claims that the government lost its opportunity to argue
for application of the mandatory minimum sentence by
not raising the issue at sentencing, and more significantly,
by affirmatively stating that no mandatory minimum
sentence applied to Clark’s conviction. With this argument,
Clark suggests that whenever the government (or the
defendant, for that matter) makes a mistake at a sen-
tencing hearing, the court is bound by that mistake and
may not correct a sentencing error that stems from it.
Clark’s position might make sense if applied to discretion-
ary considerations and enhancements or reductions
under the advisory guidelines—parties must state all of
their objections to the multiple facets of a sentence at the
sentencing hearing. See United States v. Porretta, 116 F.3d
296, 300 (7th Cir. 1997). Arguing after-the-fact, via a
Rule 35(a) motion to correct a sentencing error, that the
district court improperly applied a sentencing enhance-
ment or reduction “flies in the face of the advisory com-
mittee’s admonition that it ‘did not intend that the rule
relax any requirement that the parties state all objections
to a sentence at or before the sentencing hearing.’ ” Id.
(quoting Fed. R. Crim. P. 35 advisory committee’s note
to 1991 Amendments).
But the situation here is different because the mistake
was more fundamental—the resulting sentence violated a
legislative mandate requiring that persons convicted of
Clark’s particular crime, with the amount of drugs in-
volved, be imprisoned for a minimum term of ten years.
See 21 U.S.C. § 841(b)(1)(A)(ii). The district court re-
peatedly asked the AUSA whether there was a mandatory
No. 07-1297 11
minimum it should factor into Clark’s sentence, but
the AUSA erroneously stated that there was not. To
bind the court to the government’s error would not only
result in a windfall to this particular defendant—who is
not unlike other defendants who were correctly sentenced
to the mandatory minimum of ten years’ imprison-
ment—but would also directly contravene congressional
intent. Unlike the sentencing guidelines, which are advi-
sory, see United States v. Booker, 543 U.S. 220, 264-65 (2005),
statutory mandatory minimums are just as they sound—
mandatory, see United States v. Cannon, 429 F.3d 1158, 1160
(7th Cir. 2005). To allow a party’s blunder at sentencing to
defuse the mandate of Congress—especially where the
Federal Rules of Criminal Procedure provide a means for
district courts to correct such blunders within seven days
of the sentence—would convert individual lawyers
into legislators each time a court mistakenly follows an
illegitimate recommendation. The statements of the
Supreme Court in Bozza v. United States, are equally
pertinent here: “The Constitution does not require that
sentencing should be a game in which a wrong move by
the judge means immunity for the prisoner. . . . The
sentence as corrected, imposes a valid punishment for
an offense instead of an invalid punishment for that
offense.” 330 U.S. 160, 166-167 (1947) (internal citations
omitted).
The mistake in this case that Clark desired to let lie
would have been reversed on appeal—district courts
must abide by statutory sentencing ranges. See United
States v. Roberson, 474 F.3d 432, 434 (7th Cir. 2007) (“The
Supreme Court’s decision in United States v. Booker, which
12 No. 07-1297
made the sentencing guidelines advisory, did not authorize
district judges to ignore statutory sentencing ranges. . . .
Booker confers no authority on judges to disregard stat-
utes.” (internal citation omitted)). And the district court
was well aware of its authority and the repercussions of
such a mistake: “based on Seventh Circuit precedent,
I have no choice but to impose the ten-year manda-
tory minimum, and I think the failure to do so and the
propriety of doing so is so clear that it would almost
certainly result in a remand, which, I take it, is what I need
to find in order to have jurisdiction under Rule 35 to
correct the sentence.”
Clark continues, however, that the AUSA’s denounce-
ment during the sentencing hearing of a mandatory
minimum foreclosed the possibility of a sentence correction
under Rule 35(a) by way of the waiver doctrine. His
argument is somewhat tenable in light of our language
in United States v. Byerly, 46 F.3d 694, 699 (7th Cir. 1995).
In Byerly, the government attorney told the district court
that it was within the court’s discretion to impose a
mandatory sentence. Id. at 696. The government was
wrong, but the government did not bring the error to the
court’s attention until over two years later, after the
defendant had (unsuccessfully) appealed his sentence,
and after we issued our mandate affirming his convic-
tion. Id. at 697. The government filed a motion under the
old version of Rule 35(a), which allowed the district court
to “correct an illegal sentence at any time and [ ] correct a
sentence imposed in an illegal manner within the time
provided herein for the reduction of sentence,” that is,
within 120 days of an affirmance of the judgment. Id.
No. 07-1297 13
(quoting old Rule 35(a)). The government acted within
the proper time frame under the old rule, but we
decided that the district court could not correct the
illegal sentence, notwithstanding the language of old
Rule 35(a), because of the government’s waiver. Id. at 699-
700.
An attorney cannot agree in open court with a
judge’s proposed course of conduct and then
charge the court with error in following that
course. [The] AUSA [ ] bound his principal and
client, the United States, to the position that the
application of the Guidelines and a mandatory
minimum sentence to Byerley’s conviction was
discretionary with the district court. The govern-
ment cannot now use old Rule 35(a) to overcome
the errors of its agent.
Id. at 700 (internal citation and quotation marks omitted).
Old Rule 35(a) was more expansive than the current
version of the rule—allowing for the correction of an illegal
sentence “at any time” up to 120 days after an affirmance
or dismissal of the appeal. Id. at 697. Thus, the Rule
allowed for corrections of sentences long after their
imposition, and in Byerly, the implications of such a broad
grant of corrective power were clear. The Rule contem-
plated allowing a party, the government, to sit back
throughout the direct appeal process with the possibility
of a Rule 35(a) correction in reserve. It made sense for us,
in terms of judicial economy and the finality expectations
of convicted defendants, to impose a limitation on old
Rule 35(a) in a case where the government reversed the
14 No. 07-1297
position it advocated to the district court, years after
sentencing.
But that functional limitation is no longer necessary
because Rule 35(a)’s revision includes a limitation that
protects the dual concerns of judicial economy and
finality: the district court must correct the sentence within
seven days, see Fed. R. Crim. P. 35(a), and it may not
correct the sentence after that time period, see United States
v. Baldwin, 414 F.3d 791, 797 (7th Cir. 2005) (“The Supreme
Court has held that these rules [including Rule 35(a)]
operate to deprive the court of authority to act after the
time period specified in the rule has elapsed.” (citing
Carlisle v. United States, 517 U.S. 416, 428 (1996)) (overruled
in part on other grounds by United States v. Parker, 508 F.3d
434, 441 (7th Cir. 2007)). Unfortunately for Clark, the
doctrine of waiver is no longer necessary, nor applicable to
the new Rule. Where a party makes a mistake at a sen-
tencing hearing, which in turn leads to the imposition of a
sentence that is clearly wrong—for example, a mistake in
contravention of clear congressional intent or man-
date—the district court may correct the sentence so long
as the correction complies with Rule 35(a) and occurs
within seven days. We emphasize that such mistakes
might be made by either party—if a defendant did not
realize at sentencing that he was not subject to a mandatory
minimum sentence, but the court erroneously applied one,
the defendant could make a motion for a corrected sen-
tence within the seven-day time period. We also reiterate
that the scope of Rule 35(a) is narrow, and our reasoning
should not be read to allow parties to raise, after sen-
tencing, arguments for or against enhancements or reduc-
tions under the guidelines that should have been raised
No. 07-1297 15
at the sentencing hearing. See Poretta, 116 F.3d at 300. To
the extent that this decision is inconsistent with our
prior ruling in Byerly, we overrule that portion of Byerly.
46 F.3d at 700.1
B. The imposition of a mandatory minimum sentence based on
judge-found facts
Clark contends that the quantity of drugs involved in
his offenses should have been determined beyond a
reasonable doubt, by a jury. We review this Apprendi issue
de novo. United States v. Seymour, 519 F.3d 700, 709 (7th Cir.
2008); see also Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). Clark was convicted under 21 U.S.C. § 841, which
prescribes in its subsections escalating penalties for
defendants depending on the quantity of a controlled
substance the defendant knowingly or intentionally
manufactured, distributed, dispensed, or possessed with
intent to manufacture, distribute, or dispense. 21 U.S.C.
§ 841(a)(1), (b); see also United States v. Hernandez, 330
F.3d 964, 979-80 (7th Cir. 2003). Because the amount of
cocaine involved in Clark’s conviction was over five
kilograms, he was subject to a mandatory ten-year term
of imprisonment. 21 U.S.C. § 841(b)(1)(A)(ii). This manda-
tory term was below the twenty-year maximum term
1
This opinion has been circulated among all judges of this
court in regular active service pursuant to Circuit Rule 40(e).
No judge favored a rehearing en banc. Judge Flaum did not
participate in the consideration of this case.
16 No. 07-1297
Clark could have received for a § 841 conviction absent
any drug-quantity determination. See id. § 841(b)(1)(C).
Clark acknowledges that we have held on multiple
occasions that judges may find facts, by a preponderance
of the evidence, that subject a defendant to a statutory
mandatory minimum. See United States v. Price, 516 F.3d
597, 605 (7th Cir. 2008); United States v. Jones, 418 F.3d 726,
732 (7th Cir. 2005); United States v. Knight, 342 F.3d 697,
714 (7th Cir. 2003); Hernandez, 330 F.3d at 980-82; see also
United States v. Collins, 510 F.3d 697, 701 (7th Cir. 2007). We
see no reason to depart from our precedent and continue
to hold that “Apprendi has no application where a drug
dealer is given a sentence at or below the maximum
provided in § 841(b)(1)(C).” Hernandez, 330 F.3d at 908;
see also United States v. Abdulahi, 523 F.3d 757, 760 (7th
Cir. 2008) (“Apprendi has no application to cases like
this one where the sentence is below the statutory maxi-
mum.”).
One of Clark’s arguments on this topic warrants brief
consideration. Clark encourages us to rethink our prece-
dent because the Second and Ninth Circuits have adopted
contrary approaches to drug-quantity determinations
under § 841. In United States v. Gonzalez, 420 F.3d 111, 133-
34 (2nd Cir. 2005), the Second Circuit concluded that the
“drug quantities specified in 21 U.S.C. § 841 are elements
that must be pleaded and proved to a jury or admitted by
a defendant to support any conviction on an aggravated
drug offense, not simply those resulting in sentences
that exceed the maximum otherwise applicable for an
identical unquantified drug crime.” And in United States v.
No. 07-1297 17
Velasco-Heredia, 319 F.3d 1080, 1085-87 (9th Cir. 2003), the
Ninth Circuit decided that facts subjecting defendants
to mandatory minimums under § 841 must be proven to
a fact-finder beyond a reasonable doubt.
“While we carefully and respectfully consider the
opinions of our sister circuits, we are not bound by them.”
United States v. Williams, 184 F.3d 666, 671 (7th Cir. 1999).
“Our duty is to independently decide our own cases, which
sometimes results in disagreements with decisions of
the other circuits.” Atchison, Topeka & Santa Fe Ry. Co. v.
Pena, 44 F.3d 437, 443 (7th Cir. 1994). We have carefully
analyzed whether drug quantity constitutes an element
of an § 841 offense that must be proven to a jury beyond a
reasonable doubt, and have decided time after time that
neither the statute, nor Apprendi and its progeny, dictates
such a result. See, e.g., United States v. Martinez, 301 F.3d
860, 863-66 (7th Cir. 2002); see also Abdulahi, 523 F.3d at 760-
61; Hernandez, 330 F.3d at 980-81.
C. The district court’s drug-quantity findings
We review the district court’s determination of drug
quantity for clear error. United States v. Artley, 489 F.3d 813,
821 (7th Cir. 2007). “This is a highly deferential standard of
review and we refuse to ‘second-guess the sentencing
judge.’ ” United States v. Hankton, 432 F.3d 779, 789 (7th Cir.
2005) (quoting United States v. Cleggett, 179 F.3d 1051, 1059
(7th Cir. 1999)). The government had the burden of proving
drug quantity to the court by a preponderance of the
evidence, United States v. McGowan, 478 F.3d 800, 802 (7th
18 No. 07-1297
Cir. 2007); United States v. White, 360 F.3d 718, 720 (7th
Cir. 2004), but the evidence supporting the drug-quantity
determination need not have been limited to evidence
admissible at trial. White, 360 F.3d at 720; United States
v. Galbraith, 200 F.3d 1006, 1011-12 (7th Cir. 2000).
Clark argues that the district court should not have
relied on the testimony of Juan Corral because Corral was
an admitted perjurer and drug user who had lied previ-
ously to protect his own interests. This argument fails
because the district court specifically found Corral to be a
truthful witness, despite his inability to remember specific
details about his deals with Clark. A district court’s
determination of witness credibility is “entitled to great
deference and ‘can virtually never be clear error.’ ” White,
360 F.3d 718, 720 (7th Cir. 2004) (quoting United States v.
Blalock, 321 F.3d 686, 690 (7th Cir. 2003)). Further, a sen-
tencing court may credit testimony that is “ ‘totally uncor-
roborated and comes from an admitted liar, convicted
felon, or large scale drug-dealing, paid government
informant.’ ” Id. (quoting Blalock, 321 F.3d at 690); see also
Galbraith, 200 F.3d at 1012; United States v. Rodgers, 245 F.3d
961, 968 (7th Cir. 2001) (“[T]he district judge was free to
credit Dexter. That Dexter was a convicted felon who stood
to gain from his testimony against Rodgers is by no means
a remarkable circumstance.”). Furthermore, it is clear from
the record that Corral’s testimony about his sales to Clark
never wavered. He maintained throughout the 17-
kilogram estimate, and consistently explained that Clark
usually purchased five kilograms, sometimes purchased
three, and at least once purchased eight. Unlike the situa-
tion in United States v. Beler, 20 F.3d 1428, 1433-34 (7th Cir.
No. 07-1297 19
1994), where the witness wavered in his testimony about
drug quantity, Corral’s testimony remained constant.
To compute his estimate of cocaine sales, Corral multi-
plied the minimum number of kilograms he sold to Clark
during a transaction (three kilograms) by the number of
months he dealt with Clark (five months)—15 kilo-
grams. Because he remembered selling Clark more than
three kilograms “at times,” he added an additional two
kilograms to his total calculation of 17 kilograms, which
Corral stated was conservative. This method of computa-
tion, assuming credibility and reliability of the witness,
is permissible. A district court may “calculate drug quan-
tity 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.” White,
360 F.3d at 720; see also United States v. Durham, 211 F.3d
437, 444 (7th Cir. 2000).
Granted, Corral could not recall the specific details of
his deals with Clark, the exact number of occasions he
sold cocaine to Clark, or the amount of cocaine involved
in each sale. Clark argues that because Corral could not
remember details, his testimony lacked the required
“indicia of reliability” that would allow the district court
to rely on his statements. See Beler, 20 F.3d at 1433. Indeed,
the district court agreed that Corral’s recollections were
vague and not specific enough in themselves to support
a drug-quantity finding of over 15 kilograms. However,
the district court decided that the summaries of the
wiretapped phone conversations—contained in the
original complaint affidavit that was submitted to a
20 No. 07-1297
magistrate judge—corroborated Corral’s testimony. The
two phone calls from May and June corroborated Corral’s
testimony that Corral dealt with Clark about once per
month and that Corral sold Clark kilogram quantities of
cocaine.
The transcripts of those conversations were not admitted
into evidence, nor were the actual recordings—so Clark
objects to the district court’s reliance on the complaint
affidavit that summarized the conversations. The district
court explained that because the standard was only a
preponderance of the evidence, and the rules of evidence
did not apply, it could rely on the government’s asser-
tion in an official court document that the “complaint
[was] based on surveillance.”
Section 6A1.3(a) of the Guidelines allows sentencing
courts to “consider information without regard to its
admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient indicia
of reliability to support its probable accuracy.” The com-
plaint affidavit was a document presented to a magistrate
judge and attested to by the drug trafficking agent. The
district court was entitled to credit the complaint as an
accurate summary of the government’s evidence about
Clark. There was nothing suggesting that the com-
plaint was unreliable or that it contained inconsistencies,
which was the case in Beler, in which two sworn affidavits
contradicted one another. 20 F.3d at 1433-36; see also
Hankton, 432 F.3d at 790 (stating that the defendant did not
show how agent’s testimony about wiretapped conversa-
tions was unreliable, other than the fact that testimony
was inadmissible hearsay).
No. 07-1297 21
The summaries of the wiretapped conversations sup-
ported Corral’s testimony, which never wavered with
respect to how much cocaine Corral estimated he sold
to Clark. We agree with the district court that the com-
plaint affidavit contained the requisite indicia of reli-
ability for the district court to factor its contents into the
drug-quantity determination. Between Corral’s testimony
and the corroborating summaries of the wiretapped
conversation, the district court did not clearly err in
finding by a preponderance of the evidence that Clark’s
§ 841 offense involved more than 15 kilograms of cocaine.
III. C ONCLUSION
The amended judgment of the district court correcting
Clark’s sentence is A FFIRMED.
8-19-08