United States v. Gerry Burnett

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2016 Decided July 8, 2016
No. 13-3075
UNITED STATES OF AMERICA,
APPELLEE
v.
GERRY DUANE BURNETT,
APPELLANT
Consolidated with 13-3076, 13-3078
Appeals from the United States District Court
for the District of Columbia
(No. 1:12-cr-00042-3)
(No. 1:12-cr-00042-1)
(No. 1:12-cr-00042-4)
Howard B. Katzoff, appointed by the court, argued the
cause for appellant Jesse McLester Young, Jr. Vincent
Jankoski, appointed by the court, argued the cause for
appellant Thaxton Young, Jr. Mary E. Davis, appointed by
the court, argued the cause for appellant Gerry Duane Burnett.
With them on the briefs was Christopher M. Davis.
Finnuala K. Tessier, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
2
was Elizabeth Trosman, Assistant U.S. Attorney. Elizabeth
H. Danello, Assistant U.S. Attorney, entered an appearance.
Before: KAVANAUGH, SRINIVASAN, and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Eugene McDuffie,
Thaxton Young, Jesse Young, and Gerry Burnett conspired to
distribute heroin in Washington, D.C. (Thaxton Young and
Jesse Young are cousins. For ease of reading, we will refer
to the two Youngs by their first names.) Beginning about
May 2011 and continuing through January 2012, McDuffie
and Thaxton made frequent trips from Washington, D.C., to
New York City and other locations along the I-95 corridor.
They took those trips to obtain significant quantities of heroin
from Thaxton’s cousin, Jesse, who lived in New York.
McDuffie and Burnett would then resell the heroin in the
Washington, D.C., area.
The Government obtained a federal grand jury indictment
against Thaxton, Jesse, and Burnett. (McDuffie separately
pled guilty and ultimately testified against the three
defendants in this case.) The indictment against the three
defendants charged them with one count of conspiracy to
distribute and possess with intent to distribute a kilogram or
more of heroin in violation of 21 U.S.C. §§ 846 and 841.
The indictment also charged Burnett alone with one count of
possession with intent to distribute heroin and one count of
possession with intent to distribute marijuana.
Following a three-week jury trial, Thaxton, Jesse, and
Burnett were convicted of one count of a lesser-included
3
conspiracy offense: conspiracy to distribute and possess with
intent to distribute 100 grams or more of heroin. A jury also
found Burnett guilty of the heroin possession and marijuana
possession counts.
The court sentenced Thaxton, Jesse, and Burnett to terms
of imprisonment as follows: 11 years and three months for
Thaxton; 11 years and three months for Jesse; and 12 years
and seven months for Burnett.
On appeal, Thaxton, Jesse, and Burnett challenge their
convictions on a variety of grounds. Jesse and Burnett also
contest the District Court’s calculation of their sentences.
We affirm the judgments of conviction and sentence in all
respects, except that we vacate Burnett’s sentence and remand
for the District Court to resentence Burnett.
I
We begin with a brief factual background of this case.
Because we are reviewing a guilty verdict, we recount the
evidence in the light most favorable to the Government.
McDuffie and Thaxton lived in the Washington, D.C.,
area. In the spring of 2011, McDuffie and Thaxton agreed to
sell heroin. They planned to purchase the heroin from
Thaxton’s cousin, Jesse, who lived in New York City.
Beginning in May 2011, McDuffie and Thaxton took the first
of several trips to New York City to obtain heroin from Jesse.
In August 2011, the Government began investigating
McDuffie, Thaxton, Jesse, and Burnett, after a confidential
source notified the Government that McDuffie was trafficking
in drugs. Shortly after opening its investigation, the
Government obtained warrants to track McDuffie’s car and
4
cell phone, as well as Thaxton’s car. GPS data, which was
later corroborated by eyewitness testimony, phone records,
text messages, and rental car records, revealed a pattern:
About once a month, McDuffie, Thaxton, or both, would
travel – often by rental car – from Washington, D.C., to New
York City or some other location along the I-95 corridor.
There, they would meet briefly with Thaxton’s cousin Jesse to
obtain heroin. McDuffie and Thaxton would then bring the
heroin back to Washington, D.C., where McDuffie would sell
it. McDuffie sold some of the heroin to Burnett, who in turn
would re-sell some of it.
Within a few days of such trips in October, November,
and December, 2011, McDuffie told a confidential informant
for the Government that he was able to sell heroin.
McDuffie made three controlled sales to the informant.
Recordings from those controlled sales revealed that
McDuffie had been storing heroin at Burnett’s home in
Washington. Phone records and GPS data also revealed that
following the controlled sales, McDuffie arranged to meet
Thaxton in order to share the proceeds.
On January 18, 2012, McDuffie spoke to the confidential
informant to arrange another sale of heroin. On January 20,
Thaxton rented a car. On the following day, January 21,
McDuffie and Thaxton drove the rental car to Philadelphia to
meet Jesse. Federal agents personally observed McDuffie
and Thaxton in Philadelphia. The agents saw the two men
spend only a short time in Philadelphia before returning to
their rental car and heading back down I-95 toward
Washington. Concluding that McDuffie and Thaxton had
likely obtained drugs from Jesse and that the rental car they
were driving would contain those drugs, the federal agents
asked the Maryland State Police to stop and search the rental
car. Maryland State Police did so, and during the search
5
they found about 62 grams of heroin in the car. The
Maryland State Police arrested McDuffie and Thaxton.
Shortly thereafter, the Federal Government obtained
search warrants to search the homes of Thaxton and Burnett.
At Thaxton’s home, agents recovered two digital scales and
more than $1,000 in cash. At Burnett’s home, agents
recovered heroin, marijuana, drug paraphernalia, and more
than $6,000 in cash.
The Government obtained a three-count federal grand
jury indictment against Thaxton, Jesse, and Burnett. 1 All
three defendants were charged with one count of conspiring to
distribute and possess with intent to distribute a kilogram or
more of heroin in violation of 21 U.S.C. §§ 846 and 841. In
light of the heroin and marijuana found at his home, the
indictment also charged Burnett alone with one count of
possession with intent to distribute heroin and one count of
possession with intent to distribute marijuana.
A jury found all three defendants guilty of the
lesser-included offense of conspiracy to distribute and possess
with intent to distribute 100 grams or more of heroin in
violation of 21 U.S.C. §§ 846 and 841. The jury also
convicted Burnett of the separate heroin and marijuana
possession counts. The District Court then sentenced the
defendants to the following terms of imprisonment: 11 years
and three months for Thaxton; 11 years and three months for
Jesse; and 12 years and seven months for Burnett.
1
McDuffie had been named in an earlier indictment charging
all four men. However, in light of a plea agreement he reached
with the Government on April 4, 2012, McDuffie was not included
in the April 17, 2012, indictment. McDuffie later became a
cooperating witness in the Government’s case against the
defendants.
6
The defendants have appealed on a variety of grounds.
II
Thaxton raises a Fourth Amendment challenge to the
officers’ stop and search of his rental car on I-95 on January
21, 2012, as McDuffie and Thaxton returned from their
Philadelphia meeting with Jesse. Thaxton argues that the
officers lacked probable cause to stop and search the car. He
claims that evidence recovered during the search therefore
should have been excluded from his trial. The District Court
denied his motion to suppress. Our review is de novo.
United States v. Holmes, 505 F.3d 1288, 1292 (D.C. Cir.
2007).
The Fourth Amendment provides that the “right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized.” U.S. CONST. amend. IV.
Under Supreme Court precedent, when “a car is readily
mobile and probable cause exists to believe it contains
contraband,” the Fourth Amendment permits police to stop
the car and search it without a warrant. Pennsylvania v.
Labron, 518 U.S. 938, 940 (1996) (per curiam).
Probable cause is an objective standard “to be met by
applying a totality-of-the-circumstances analysis.” United
States v. Vinton, 594 F.3d 14, 21 (D.C. Cir. 2010); see also
Illinois v. Gates, 462 U.S. 213, 230-32 (1983). Probable
cause is more than bare suspicion but is less than beyond a
7
reasonable doubt and, indeed, is less than a preponderance of
the evidence. See Florida v. Harris, 133 S. Ct. 1050, 1055
(2013) (“Finely tuned standards such as proof beyond a
reasonable doubt or by a preponderance of the evidence have
no place in the [probable-cause] decision. All we have
required is the kind of ‘fair probability’ on which ‘reasonable
and prudent [people,] not legal technicians, act.’”) (internal
citation, alteration, and quotation marks omitted); see also
United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013)
(Probable cause “does not require certainty, or proof beyond a
reasonable doubt, or proof by a preponderance of the
evidence.”); Illinois v. Gates, 462 U.S. at 231-32 (describing
probable cause as a “fluid concept” that turns on “factual and
practical considerations of everyday life on which reasonable
and prudent” people, “not legal technicians, act”); Brinegar v.
United States, 338 U.S. 160, 175 (1949) (Probable cause is
“less than evidence which would justify . . . conviction” but
“more than bare suspicion.”).
Probable cause may be based on the “collective
knowledge of the police.” United States v. Hawkins, 595
F.2d 751, 752 n.2 (D.C. Cir. 1978). Therefore, on this issue,
we will refer to the federal agents and the Maryland State
Police collectively as the “officers.”
Here, the officers had probable cause to believe that
McDuffie’s and Thaxton’s rental car contained drugs. The
probable cause was based in part on the pattern that the
officers had observed for several months: At the end of
October, November, and December 2011, GPS data from
McDuffie’s car, phone, or both revealed that McDuffie had
traveled to Thaxton’s home in Columbia, Maryland. GPS
data available for two of the trips showed that while
McDuffie’s car remained at Thaxton’s home, his cell phone
would travel up I-95 either to Jesse’s house in the Bronx, New
8
York, or to a pizza restaurant nearby. After spending only a
short time in the locale in question, McDuffie’s cell phone
traveled back down I-95 to Thaxton’s house. Shortly after
each of these monthly trips, McDuffie arranged to sell heroin
to the confidential informant.
On January 21, 2012, about a month after the December
trip up I-95, GPS data showed McDuffie’s car again travelling
to Thaxton’s home in Maryland. McDuffie’s car remained
there while his cellphone was traced traveling up I-95 to
Philadelphia. Meanwhile, in Philadelphia, officers
personally surveilled McDuffie and Thaxton. They observed
the two men spend only a short time there before the two men
departed southbound on I-95.
Based on McDuffie’s and Thaxton’s prior pattern of
activity and the officers’ direct observations of McDuffie and
Thaxton on January 21 in Philadelphia, the officers had
probable cause that the rental car would contain the illegal
drugs that McDuffie and Thaxton had just acquired in
Philadelphia. After all, common sense suggested that this
was yet another drug purchasing trip.
Thaxton’s only real response is that there was no
probable cause to believe the rental car would contain drugs
because the trip to Philadelphia was not consistent with the
alleged pattern of prior drug purchasing trips. In advancing
this argument, Thaxton relies on the fact that he and
McDuffie traveled not to New York City, but rather to
Philadelphia. We agree with the Government, however, that
a pattern of activity need not be identical in order to support
probable cause. Apart from the different pick-up location
for the heroin, Thaxton’s and McDuffie’s trip was identical in
all other relevant respects to the three previous trips up I-95
that were heroin pick-up trips.
9
In short, the officers had probable cause to believe that
Thaxton’s rental car would contain illegal drugs. As a result,
the stop and search of the car was valid under the Fourth
Amendment.
III
All three defendants next raise an argument about the
Maryland State Police’s inadvertent destruction of the heroin
found in Thaxton’s car.
When searching Thaxton’s rental car on January 21,
2012, the Maryland State Police recovered about 62 grams of
heroin. Soon thereafter, the State of Maryland charged
McDuffie and Thaxton with drug-related offenses. In March
2012, however, the State dismissed those charges after
learning of the Federal Government’s intent to rely on that
seized heroin in its long-running investigation of this drug
trafficking operation.
The heroin seized from Thaxton’s rental car was stored at
a Maryland State Police facility. The drugs remained there
even after the state charges against McDuffie and Thaxton
were dismissed. Owing to space constraints at the facility,
the Maryland State Police protocol was to destroy evidence
after it was no longer needed in a particular case. Sometime
after March 2012, a routine check of Thaxton’s and
McDuffie’s case status revealed that the State had dropped the
drug-related charges against them. However, the state case
management system mistakenly failed to flag that a federal
case against them continued. In October 2012, thinking that
there was no reason to preserve the heroin, Maryland
personnel ordered its destruction.
10
Because the heroin from the rental car had been
destroyed, the Federal Government moved to admit secondary
evidence of that heroin. The Government proposed to
introduce testimony, lab reports, photographs, and video
related to the heroin seized from the rental car. The District
Court granted the Government’s motion. The defendants
claim that the admission of secondary evidence in place of the
drugs themselves violated their due process rights. We
disagree.
To make out a claim that the destruction of evidence
violated the Due Process Clause, “the defendant bears the
burden of proving that the government failed in bad faith to
preserve material and potentially exculpatory evidence.”
United States v. McKie, 951 F.2d 399, 403 (D.C. Cir. 1991)
(citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
In analyzing this claim, the District Court concluded that
the “Maryland State Police destroyed the heroin after a
routine check . . . revealed that the State of Maryland charges
had been dismissed, and . . . the government contends this
was an inadvertent mistake made in good faith and the
defendants have not shown otherwise.” Tr. of Motion in
Limine Hearing (Mar. 22, 2013), Joint Appendix at 615. We
review the District Court’s determination of good faith for
clear error. Defendants have pointed to nothing in the record
that undermines the District Court’s finding. We “certainly
cannot say that the district court’s decision regarding the
quintessentially factual question of intent was clearly
erroneous.” McKie, 951 F.2d at 403.
In this Court, the defendants also raise a new argument.
They claim that the District Court focused on the wrong
government entity in assessing bad faith. Specifically, they
argue that the lack of federal policies to ensure preservation
11
of the drugs by the state agency was evidence of the Federal
Government’s bad faith. The defendants cite no precedent to
suggest that the Federal Government may not rely on a state
agency, or vice versa, to store contraband relevant to ongoing
criminal investigations. We need not delve into the
subsidiary question of when a “storing government’s” bad
faith may be attributed to the “prosecuting government” in
such circumstances. Suffice it here to say that the
defendants did not present sufficient evidence of bad faith by
either the Federal Government or the Maryland State Police in
connection with the Maryland State Police’s inadvertent
destruction of the drugs.
Not only have the defendants failed to prove bad faith,
they also have advanced no credible argument that the
destroyed evidence was “potentially exculpatory,” which is a
separate requirement to succeed on this kind of due process
claim. Id. (emphasis omitted). A field test and a lab test
revealed the recovered substance to be heroin. Moreover, a
small quantity of the substance seized from the vehicle on
January 21 was not destroyed and also tested positive for
heroin. And during the several months the drugs sat in the
custody of the Maryland State Police, the defendants
apparently never requested to test the evidence themselves,
presumably because there was no doubt that it in fact was
heroin.
In sum, the defendants’ due process argument about the
destruction of heroin evidence is unavailing.
12
IV
Burnett claims that the search of his home by federal
agents violated the Fourth Amendment and that the evidence
seized from the home should have been excluded from trial.
On March 1, 2012, after obtaining a search warrant,
federal law enforcement officers searched Burnett’s home in
Southeast Washington, D.C. There, officers found about
280 grams of marijuana in different locations around the
house, as well as 34 grams of heroin in a tea kettle. Officers
also discovered more than $6,000 in U.S. currency and
various drug paraphernalia, including three digital scales and
a spoon with heroin residue.
Before trial, Burnett moved to suppress the items seized
during the search of his home. The District Court denied the
motion. On appeal, Burnett maintains that evidence from his
home should have been suppressed because it was recovered
pursuant to a search warrant lacking probable cause. We
review the District Court’s legal conclusions de novo and its
factual findings for clear error. United States v. Glover, 681
F.3d 411, 417 (D.C. Cir. 2012).
In certain circumstances, the exclusionary rule bars the
introduction of evidence obtained in violation of the Fourth
Amendment. At the same time, the Supreme Court has
emphasized that the exclusionary rule has limited application
when a search is conducted pursuant to a search warrant.
See United States v. Leon, 468 U.S. 897, 919-21 (1984).
The exclusionary rule does not apply “when an officer acting
with objective good faith has obtained a search warrant from a
judge or magistrate and acted within its scope.” Id. at 920.
That is because the “exclusionary rule was adopted to deter
unlawful searches by police, not to punish the errors of
13
magistrates and judges.” Massachusetts v. Sheppard, 468
U.S. 981, 990 (1984). Ordinarily, we cannot expect officers
“to question the magistrate’s probable-cause determination or
his judgment that the form of the warrant is technically
sufficient.” Leon, 468 U.S. at 921.
In this case, the federal magistrate judge found probable
cause and issued a search warrant. Burnett contends that the
search warrant was invalid because the judge’s probable cause
finding depended in part on GPS tracking of McDuffie’s cell
phone inside Burnett’s home. Burnett argues that the GPS
tracking inside his home was itself unlawful under the Fourth
Amendment and therefore could not be used to support the
probable cause finding for a search warrant of the home.
But even if the magistrate judge erred by relying in part on the
GPS data and the magistrate judge’s probable cause finding
was erroneous – which we certainly do not suggest – the
evidence found in Burnett’s home would be admissible under
Leon.
To be sure, there are a few exceptions to the Leon rule.
Burnett invokes the exception that applies when the officer’s
affidavit supporting a warrant is “so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.” Id. at 923. This case does not
come close to qualifying for that exception.
Even apart from the GPS data, the affidavit in this case
described many pieces of evidence supporting the issuance of
a search warrant. In a recording of one controlled heroin
sale, McDuffie can be heard telling the confidential informant
that he had picked up heroin on the day before the sale and
left it with his “other man” who lived near the “jail.”
Burnett’s home is located about two blocks from the
Washington, D.C., Correctional Facility. GPS tracking data
14
from McDuffie’s car placed the car in the vicinity of Burnett’s
residence on the evening before another sale from McDuffie
to the confidential informant. Further, the confidential
informant stated that during that particular transaction,
McDuffie made an outgoing call in an attempt to acquire
more heroin to sell to the confidential informant. Call
records of McDuffie’s cell phone reveal that during the time
of the sale, an outgoing call was made to Burnett’s phone.
Finally, federal agents observed McDuffie and Burnett
together for much of the day before another controlled sale.
Agents saw the two men briefly stop at Burnett’s residence
before traveling in McDuffie’s car to two other residences.
According to the affidavit, the agents believed that McDuffie
and Burnett had stopped at Burnett’s home to pick up drugs
for distribution.
This Court has held that “observations of illegal activity
occurring away from the suspect’s residence” can “support a
finding of probable cause to issue a search warrant for the
residence, if there is a reasonable basis to infer from the
nature of the illegal activity observed, that relevant evidence
will be found in the residence.” United States v. Thomas,
989 F.2d 1252, 1255 (D.C. Cir. 1993) (per curiam). In this
case, McDuffie’s conversations with the confidential
informant, together with the unchallenged GPS data and the
federal agents’ observations of McDuffie and Burnett,
provided a basis to believe that evidence of drug distribution
would be found inside Burnett’s home.
In short, the affidavit was not so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable. Applying Leon, we therefore
conclude that the exclusionary rule did not bar admission of
evidence seized from Burnett’s home.
15
V
Thaxton and Jesse next challenge the Government’s
introduction of evidence that those two defendants had pled
guilty to federal drug charges in prior cases. Thaxton and
Jesse contend that Federal Rule of Evidence 404(b) – which
authorizes admission of “other acts” evidence in certain
circumstances – did not authorize the admission of their prior
guilty pleas. In the alternative, they claim that even if such
evidence was admissible under Rule 404(b), it was
inadmissible under Federal Rule of Evidence 403, which
provides for exclusion of evidence that is substantially more
prejudicial than probative.
As to Rule 404(b), defendants argue that the Government
must identify a chain of reasonable inferences – other than the
defendant’s propensity to criminal acts – that links the
proffered prior-bad-acts evidence to an element in the case.
See, e.g., United States v. Turner, 781 F.3d 374, 391 (8th Cir.
2015); United States v. Caldwell, 760 F.3d 267, 282 (3d Cir.
2014); United States v. Gomez, 763 F.3d 845, 856 (7th Cir.
2014) (en banc); United States v. Douglas, 482 F.3d 591, 599
(D.C. Cir. 2007). According to defendants, the Government
did not explain to the District Court nor did the District Court
explain to the jury how, for example, Jesse’s earlier
conviction of possession with intent to distribute heroin might
help to establish his intent to conspire with Thaxton and
McDuffie to distribute heroin. Defendants stress that it is
important to differentiate between “the illegitimate use of a
prior conviction to show propensity and the proper use of a
prior conviction to prove intent.” United States v. Miller,
673 F.3d 688, 699 (7th Cir. 2012) (quoting United States v.
Jones, 389 F.3d 753, 757-58 (7th Cir. 2004)).
16
But we need not decide that Rule 404(b) issue or the Rule
403 issue here because we conclude that any potential error in
admitting the evidence was harmless. See Kotteakos v.
United States, 328 U.S. 750, 776 (1946) (non-constitutional
error harmless if no “substantial and injurious effect or
influence in determining the jury’s verdict”); see also United
States v. Johnson, 216 F.3d 1162, 1166 n.4 (D.C. Cir. 2000).
On a number of occasions in which defendants have
raised similar Rule 404(b) arguments on appeal, we have
upheld the convictions on harmless error grounds. See, e.g.,
United States v. McGill, 815 F.3d 846, 886-87 (D.C. Cir.
2016); United States v. Moore, 651 F.3d 30, 63-64 (D.C. Cir.
2011); United States v. Stubblefield, 643 F.3d 291, 296-97
(D.C. Cir. 2011); United States v. Linares, 367 F.3d 941,
952-53 (D.C. Cir. 2004); United States v. King, 254 F.3d
1098, 1101-02 (D.C. Cir. 2001).
So too here. “The government bears the burden of
proving” harmless error, Linares, 367 F.3d at 952, and has
met its burden here. The evidence of Thaxton’s and Jesse’s
guilt in this case was so overwhelming that the prior
convictions evidence could not have had a substantial impact
on the jury’s verdict. The Government presented a
cooperating witness, McDuffie. McDuffie’s testimony was
devastating to the defendants. Importantly, his testimony
was corroborated in many ways. His testimony about his
trips with Thaxton to obtain heroin from Jesse was
substantiated by surveillance, rental car records, GPS tracking
data for McDuffie’s car and phone, as well as text messages
sent by McDuffie, Thaxton, and Jesse to arrange meetings on
the dates mentioned in McDuffie’s testimony. Further, in a
recorded conversation between McDuffie and the confidential
informant, McDuffie can be heard saying that his heroin
supplier was his “best friend’s cousin.” Jesse is Thaxton’s
17
cousin. Finally, a large quantity of heroin was seized from a
rental car in which Thaxton was traveling; drug paraphernalia
and cash were seized from Thaxton’s home.
The strength of the Government’s case is underscored by
the absence of countervailing evidence. Jesse offered the
testimony of his fiancée, but her testimony was unpersuasive.
Her claim that she and Jesse met McDuffie and Thaxton in
Philadelphia purely by chance on January 21, 2012, was
belied by text messages revealing that Thaxton and Jesse had
planned to meet in Philadelphia that day.
Evidence of Thaxton’s and Jesse’s prior guilty pleas
“formed a small part of what was otherwise an overwhelming
case against” them. McGill, 815 F.3d at 886. Therefore,
any possible error in admitting evidence of Thaxton’s and
Jesse’s prior guilty pleas was harmless.
VI
Finally, we consider defendants’ sentencing challenges.
First, Jesse and Burnett both challenge the District
Court’s calculation, for Sentencing Guidelines purposes, of
the total quantity of heroin attributable to the conspiracy.2
That challenge fails.
2
Thaxton initially joined the challenge to the District Court’s
calculation of the total drug quantity. However, Thaxton’s
challenge has since become moot. While his appeal was pending
before this Court, the District Court lowered Thaxton’s sentence to
10 years under an amendment to the Sentencing Guidelines. See
U.S. SENTENCING GUIDELINES MANUAL supp. to app. C, amend.
782 (Nov. 1, 2014) (lowering base offense level for many drug
offenses); see also United States v. Cardoza, 790 F.3d 247 (1st Cir.
2015). The lowered sentence of 10 years is the statutory
18
Second, Burnett also argues that the District Court erred
in basing his sentence on conduct that occurred before he
joined the conspiracy. That claim has merit, and we
therefore vacate Burnett’s sentence and remand for
resentencing of Burnett.
A
Jesse and Burnett maintain that the District Court, in
applying the Guidelines, erred in calculating the total quantity
of heroin attributable to their drug distribution conspiracy.
Specifically, Jesse and Burnett allege that the Court
double-counted a 130-gram quantity of heroin. They also
claim that the evidence did not support the District Court’s
finding of the amount of heroin obtained in the November and
December 2011 transactions.
Under the Sentencing Guidelines, a district court
determines a defendant’s sentencing range by calculating the
defendant’s base offense level. A base offense level, in turn,
is derived from a defendant’s “relevant conduct.” For drug
offenses, “relevant conduct” includes the quantity of drugs
involved in the offense. See, e.g., United States v. Childress,
58 F.3d 693, 721-22 (D.C. Cir. 1995). A district court
makes findings of drug quantities under a preponderance of
the evidence standard. United States v. Fields, 325 F.3d
286, 289 (D.C. Cir. 2003). We review those factual findings
for clear error.
mandatory minimum for Thaxton’s offense, meaning that any error
in the District Court’s calculation of drug quantity for Guidelines
purposes is moot, as the parties all agree.
19
The defendants initially maintain that the District Court
double-counted a 130-gram quantity of heroin. Even if they
are correct on that point, however, the miscalculation did not
affect their base offense level.
The District Court attributed a total of 995.7 grams of
heroin to the conspiracy, which placed Jesse and Burnett at a
base offense level corresponding to 700 grams to 1 kilogram
of heroin. A subtraction of 130 grams from 995.7 grams still
leaves Jesse and Burnett well within the 700 gram to 1
kilogram range. In other words, Jesse’s and Burnett’s
offense level – and, in turn, their sentencing range – would
not have changed even absent the double-counting.3
Jesse and Burnett separately claim that the District Court
erroneously attributed too much heroin to the November and
December 2011 drug transactions. They are incorrect.
McDuffie testified that he and Thaxton traveled to New York
to obtain heroin in May, June, maybe July, October,
November, December 2011, and January 2012. McDuffie
also stated that he picked up no fewer than 50 grams on any
single trip. And twice he stated that the most heroin that he
and Thaxton ever received on a single trip was 400 grams.
Based on McDuffie’s testimony, the District Court attributed
50 grams to a May trip, 130 grams to a June trip, 130 grams to
a July trip, and 235.7 grams to two trips in January.
Crediting McDuffie’s testimony that McDuffie and Thaxton
3
Jesse and Burnett argue only that the District Court’s
miscalculation resulted in an incorrect base offense level. They do
not make the further claim that, even within the same base offense
level, the District Court would likely have imposed a sentence
further down the Guidelines range. Nor do the defendants make a
claim that the District Court, had it not allegedly double-counted
the 130 grams, would have varied below the Guidelines range in
imposing their sentences.
20
made trips in November and December, the District Court
attributed 400 grams to one of those trips and 50 grams to the
other, a combined total of 450 grams.
The District Court’s logic in calculating the November
and December trip amounts was sound and its estimate
conservative. Twice McDuffie testified that he and Thaxton
had received 400 grams on a certain trip. McDuffie
associated specific drug quantities with each trip save for
those in November and December. Therefore, the 400-gram
transaction must have occurred in either November or
December. The Court attributed 400 grams to one of those
trips and 50 grams – the minimum quantity mentioned by
McDuffie – to the other trip.
Jesse and Burnett maintain that the District Court should
have found 200 grams of heroin, not 400 grams, as the
maximum quantity obtained on any single trip. To support
their claim, Jesse and Burnett point to testimony in which
McDuffie stated that the most heroin he recalled receiving
during his trips to New York was 200 grams. But that
testimony directly contradicted two other statements by
McDuffie that the most heroin he received on a trip to New
York was 400 grams. We have no basis to second-guess the
District Court’s decision to credit McDuffie’s two consistent
statements over his one conflicting account.
The District Court did not clearly err by attributing the
450 grams of heroin to the conspiracy.
B
Burnett also argues that the District Court clearly erred
by basing his sentence in part on conduct that occurred before
he joined the conspiracy. We agree.
21
The Sentencing Guidelines limit the relevant conduct that
may be attributable to a co-conspirator: (1) The acts must be
in furtherance of the conspiracy to which the defendant
agreed; and (2) the acts must be reasonably foreseeable to the
defendant. Childress, 58 F.3d at 722. Of relevance here,
when calculating a sentence, a district court may not attribute
to a defendant conduct that occurred before he joined the
conspiracy. U.S.S.G. § 1B1.3, Application Note 3.
The District Court here based Burnett’s sentence, in part,
on conduct that occurred before he joined the conspiracy.
Burnett concedes that he did not contemporaneously object to
the District Court’s oversight. We therefore review this
claim for plain error. The Supreme Court recently explained
that plain error in the Guidelines calculation context means
this: A defendant must demonstrate “a reasonable
probability that, but for the error, the outcome of the
proceeding would have been different.” Molina-Martinez v.
United States, 136 S. Ct. 1338, 1343, slip op. at 4 (2016)
(internal quotation marks omitted). In the sentencing
context, a defendant who demonstrates that he was sentenced
under an incorrect Guidelines range will typically have
demonstrated a reasonable probability that the outcome of the
proceeding would have been different but for the error. Id.
at 1345, slip op. at 9. This holds true, the Supreme Court
stated, even if the defendant’s sentence “falls within both the
correct and incorrect range.” Id.
Here, in calculating Burnett’s base offense level, the
District Court attributed to Burnett 995.7 grams of heroin –
the total amount associated with the conspiracy from its
inception. The District Court based that calculation on
evidence about several trips to pick up heroin spanning from
May 2011 to January 2012. But McDuffie’s testimony
22
established – and the Government does not dispute – that
Burnett did not join the conspiracy until August or September
of 2011. McDuffie testified that he made trips to New York
to obtain heroin in May, June, and perhaps July of 2011.
The heroin the District Court associated with those three trips
– totaling 310 grams – should not have been used to calculate
Burnett’s sentence, because Burnett did not join the
conspiracy until August or September of 2011. Subtracting
310 grams from the 995.7 grams that the District Court
attributed to Burnett leaves 685.7 grams of heroin attributable
to Burnett. That amount corresponds to a lower base offense
level under the Sentencing Guidelines. And that lower base
offense level, in turn, corresponds to a different, lower
sentencing range.
Under the Supreme Court’s articulation of the plain error
standard in Molina-Martinez, Burnett therefore has shown
plain error. He must be resentenced.
* * *
We affirm the judgments of conviction and sentence in all
respects, except that we vacate Burnett’s sentence and remand
for the District Court to resentence Burnett.
So ordered.