United States v. Jonathan Stout ( 2010 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0083p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-6025
v.
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Defendant-Appellant. -
JONATHAN L. STOUT,
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Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 03-10089-001—James D. Todd, District Judge.
Submitted: March 3, 2010
Decided and Filed: March 26, 2010
Before: MARTIN, ROGERS, and McKEAGUE, Circuit Judges.
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COUNSEL
ON BRIEF: Robert C. Brooks, LAW OFFICES, Memphis, Tennessee, for Appellant. Jerry
R. Kitchen, ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for
Appellee.
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OPINION
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ROGERS, Circuit Judge. Jonathan Stout appeals his sentence of 300 months’
imprisonment for possessing and distributing both crack and powder cocaine. Stout was
originally sentenced to 1,200 months’ imprisonment, but we vacated Stout’s sentence and
remanded for resentencing under Booker. Because we determined that the district court
clearly erred in failing to distinguish between powder cocaine and crack cocaine in
calculating Stout’s relevant conduct, we also instructed the district court to revisit that issue
at the resentencing. On remand, the district court used an additional statement from Stout’s
1
No. 08-6025 United States v. Stout Page 2
co-conspirator made after the original sentencing hearing to establish relevant conduct, and
the court sentenced Stout to a below-guidelines sentence of 300 months. Stout argues on
appeal that the Government should not have been allowed an opportunity to present
additional evidence of relevant conduct because the district court was operating under a
limited remand and because the Government had the burden of production and persuasion
at the initial sentencing hearing; that the district court erred in basing its relevant conduct
determination on the unreliable statements of Stout’s co-conspirator and a confidential
informant; and that the district court’s ruling on Stout’s objections to the use of the allegedly
unreliable statements failed to meet the requirements of Federal Rule of Criminal Procedure
32(i)(B)(3), which requires a district court to rule on objections to the presentence report.
These arguments do not require reversal because the original order from this court
remanding the case did not contain any language limiting the district court to the original
record, and because the statements upon which the district court relied in determining Stout’s
relevant conduct were supported by sufficient indicia of reliability.
I.
After a jury trial, Jonathan L. Stout was found guilty of conspiracy to possess with
intent to distribute and distribution of 35.6 grams or more of crack cocaine, aiding and
abetting the possession with intent to distribute over 35.6 grams of crack cocaine, and
possession with intent to distribute 45.1 grams of crack cocaine. At trial, two witnesses who
were familiar with Stout testified against him. One of those witnesses was Jason Turner,
Stout’s co-conspirator, who had already pleaded guilty at the time of Stout’s trial. Tammy
Howell, a woman who purchased drugs from Stout and Turner and sometimes cleaned their
house in exchange for drugs, also testified.
Howell testified at trial that she had known Stout and Turner for about three or four
years and that in the two years before Stout’s arrest she had purchased both crack and
powder cocaine from Stout and Turner for personal use and for resale. She stated that during
this two-year period she would go to Stout’s house to purchase cocaine every day, that she
usually purchased “two or three eight balls a day maybe,” and that she would sometimes
clean the house in exchange for drugs. Turner testified that he had been living with Stout
prior to the time they were both arrested. Turner also testified that once he began selling
No. 08-6025 United States v. Stout Page 3
drugs, Stout took him to meet a supplier in Memphis named Taurus, and that the pair would
buy between a half-ounce to an ounce of cocaine from Taurus “at least once a week.”
Prior to sentencing, the probation officer prepared a presentence report containing
information about the relevant conduct in Stout’s offense based upon the amount of drugs
involved. The PSR contained statements from Turner, Howell, and a post-arrest statement
from Stout. The probation officer determined that the statements of Stout and Turner were
too vague to determine accurately the total amount of relevant conduct, but the probation
officer found that Howell’s statement could be used for that purpose. Howell’s statement
was as follows:
I, Tammy Howell, started buying cocaine from Mr. Stout about the
beginning of the year 2001. I bought just on weekends at first, usually an
8 ball on Friday and Sunday. I got to know him a little better and bought
from him on a daily basis. When I first started buying cocaine, I didn’t use
it. Then I got hooked on it and did not turn a profit any more. The eight
balls I bought usually weighed 3.5 grams apiece. I used to clean Stout’s
house for him and Jason Turner and they would pay me in crack instead of
money. I bought 3 - 8 balls a day on average. I spent approximately $500-
$600 a day at Stout’s house buying crack cocaine for about 1 year. I didn’t
sell drugs for Stout.
The probation officer used Howell’s statement to determine that Howell purchased 10.5
grams of crack cocaine from Stout for a period of 365 days, for a total of 3,832.5 grams.
When added to the drugs recovered at the time of arrest, this led to a total marijuana
equivalent of 77,462 kilograms. Based upon the relevant conduct determination and several
enhancements, the PSR recommended a base offense level of 38. The Government did not
file any objections to the PSR. Stout did object to the relevant conduct calculations, and the
district court determined that the “testimony of Tammy Howell at the trial did serve as a
sufficient basis to allow the probation officer to make the calculation that he made.” The
court also stated that “it’s my judgment that based upon the trial testimony of Ms. Howell,
which the jury apparently believed, the calculation on drug quantity is accurate.” The
district court then sentenced Stout to “the most serious sentence that this court has ever
imposed,” a sentence of 1,200 months. The judge did note, however, that Booker was
currently pending before the Supreme Court and the possibility existed that Stout would be
entitled to resentencing.
No. 08-6025 United States v. Stout Page 4
After Booker, Stout appealed several aspects of his convictions and his sentence
before this court. This court issued an order remanding Stout’s case for resentencing based
upon the Booker issue and the determination of Stout’s relevant conduct. After rejecting
several of Stout’s arguments regarding his conviction, we stated:
It appears from the record that using Howell’s statement to the
probation officer or her testimony at trial would result in different
calculations for Stout’s base offense level. Moreover, it appears that the
probation officer assumed that all of the drugs involved in the offense were
crack cocaine, which has a substantially higher conversion ratio than powder
cocaine. Because Howell testified that she purchased both powder cocaine
and crack cocaine from Stout and Turner, the district court’s across-the-
board use of the higher ratio does not appear to be an appropriate exercise
of caution in determining the amount of drugs involved in Stout’s offense.
Accordingly, the district court clearly erred in determining the quantity of
drugs attributable to Stout. Because we are vacating Stout’s sentence under
Booker, see infra, the district court should revisit this issue upon
resentencing and clarify the basis for its calculations.
Finally, Stout argues that the district court committed plain error in
sentencing him in accordance with a mandatory application of the
guidelines, citing Booker. The government concedes that this court’s
precedent dictates that Stout’s sentence should be vacated and his case
remanded for resentencing, and we agree.
For the foregoing reasons, we affirm Stout’s convictions, vacate his
sentence, and remand this case to the district court for resentencing
consistent with this decision and with the Supreme Court’s decision in
Booker.
United States v. Stout, No. 05-5093, slip op. at 7-8 (6th Cir. Mar. 26, 2008). Prior to the
resentencing hearing, the probation officer prepared several revised presentence reports. In
the first two revised reports, the probation officer calculated the relevant conduct based on
Tammy Howell’s statements and using the same total amount of drugs, but basing the
marijuana equivalent of the amount of drugs attributable to Howell’s statements on powder
cocaine only. The Government objected to the second revised PSR, based on the following
additional statement from Turner, given in July of 2008:
I testified at trial against Jonathan Stout. I went to Memphis, TN, to meet
TAURUS to obtain cocaine between approximately February 2003 until I
was arrested on October 22, 2003. Jonathan Stout would travel with me to
Memphis, TN to obtain cocaine. We would purchase 1/2 oz to 1 oz for $400
to $800 an ounce. At least once a month, we would purchase an ounce of
crack cocaine and the other weeks of the month we would purchase 1/2
No. 08-6025 United States v. Stout Page 5
ounce of crack cocaine from February, 2003 through October, 2003.
Jonathan Stout would also purchase powder cocaine. This statement was
written for me by DEA/TFO Terry Hopper. Nothing Follows.
Paragraph 13 of the final PSR also states that in an attempt to clarify this information, the
probation officer met with Turner three days after the statement was given, and that Turner
then stated that he and Stout purchased one ounce of crack cocaine once per month and that
he and Stout purchased one-half ounce of crack cocaine the other three weeks of the month.
“Mr. Turner answered affirmatively when asked by [the] presentence writer if, based on his
statement, it would be a correct assumption that he (Turner) purchased an average of two and
one-half (2-1/2) ounces of crack cocaine per month from TAURUS during the stated time
period.”
Based upon these statements and Howell’s earlier statement, the probation officer
calculated the amount of drugs attributable to Stout as 3,324.78 grams of powder cocaine and
552.8 grams of cocaine base, for a marijuana equivalent of 11,721.3 kilograms. The
probation officer reached this calculation by using Howell’s statement that she purchased
three 3.5-gram eight balls per day for 365 days to reach a total of 3,832.5 grams of powder
cocaine. The officer then added to this the 45.1 grams of crack cocaine found at the time of
Stout’s arrest. The officer also calculated, based on Jason Turner’s new statements, that an
additional 552.82 grams of crack cocaine were attributable to Stout. Because Howell had
testified that she purchased both crack and powder cocaine from Stout and Turner, the
probation officer then subtracted the amount of crack cocaine from the powder cocaine
attributable to Howell’s statement to avoid double-counting. This resulted in a total
marijuana equivalent of 11,721.3 kilograms of marijuana, resulting in an initial base offense
level of 36.
Stout filed objections to the PSR, arguing that the district court should not have
relied on the additional evidence because it was the unreliable statement of a co-conspirator
given five years after the events in question, and because the remand for resentencing was
a limited remand and the Government was entitled to only one opportunity to present
evidence of relevant conduct. At the resentencing hearing, the court held that the remand
did not limit the Government’s ability to present additional evidence. The court stated,
“Defendant says the government can’t introduce any additional evidence that was not
No. 08-6025 United States v. Stout Page 6
introduced at the original hearing. I don’t read the remand to be so limited. . . . The only
way for me to revisit the issue of relevant conduct is to consider all the evidence that’s
available on relevant conduct.”
The district court also held that the statements of Tammy Howell and Jason Turner
were sufficiently reliable to determine relevant conduct, and that the probation officer
correctly determined the amount of drugs attributable to Stout:
Based on this court’s determination concerning the credibility of Mr.
Turner and Ms. Howell, the court finds as follows: that the total amount of
drugs purchased, both powder and crack, is properly calculated by the
probation officer based upon the testimony of Ms. Howell and Mr. Turner.
But that is total amount. The only specific amount of crack about
which there’s testimony comes from codefendant Turner. Mr. Turner’s
testimony is specific enough that the court can conclude, in a cautious
calculation, that Mr. Turner was involved in approximately 550 grams of
crack cocaine. So we’ve got 552 grams of crack based upon his testimony
about purchasing an ounce a month and then a half ounce the other three
weeks of each month for eight months.
Now, to be also cautious and to be lenient in the calculation, we have
to deduct the crack from the total amount testified about by Ms. Howell.
And if we do that, then that leaves everything else to be powder cocaine.
And considering that none of the rest of it was crack, the court determines
that the probation officer has correctly calculated the relevant conduct based
upon the testimony of Ms. Howell and Mr. Turner.
So to repeat, we get the total amount of drugs from Ms. Howell’s
testimony buttressed by Mr. Turner’s testimony. We deduct from that the
amount of crack that is relatively reliable based upon Mr. Turner’s
testimony, and that leaves the rest to be powder cocaine. And under a
lenient calculation, the court concludes that that is an appropriate
calculation.
Based upon these findings, the court determined that Stout’s Guidelines range was 360
months to life. The court heard from Stout, then announced a sentence of 300 months’
imprisonment. After announcing the sentence, the court asked: “Are there any issues that
have been presented that I need to rule on or any issues that have come up that I have not yet
addressed? Mr. Brooks are you aware of any?” Brooks, who was Stout’s counsel,
answered, “No, sir.” Stout timely appealed.
No. 08-6025 United States v. Stout Page 7
II.
The district court’s consideration of Turner’s additional statements did not exceed
the scope of the mandate because nothing in our previous order remanding Stout’s case for
resentencing required that the district court conduct the resentencing on the original record.
On the issue of relevant conduct, the order remanding Stout’s case to the district court was
a general remand because the order did not clearly limit and define the procedures the district
court was to follow in revisiting the relevant conduct issue. Under a general remand, the
district court is allowed to conduct a de novo resentencing, including the consideration of
new evidence and issues. Because the district court here was not constrained by a mandate
explicitly limiting its ability to consider new evidence, the district court did not exceed the
scope of the mandate in considering the additional statement of Jason Turner at resentencing.
“The basic tenet of the mandate rule is that the district court is bound to the scope
of the remand issued by the court of appeals.” United States v. Campbell, 168 F.3d 263, 265
(6th Cir. 1999). In defining the scope of the mandate, this court generally classifies a
remand as either general or limited, and courts of appeals have broad discretion in
determining the scope of the mandate. Id. “In the absence of an explicit limitation, the
remand order is presumptively a general one.” United States v. Moore, 131 F.3d 595, 598
(6th Cir. 1997). In Stout’s previous appeal, this court found two issues warranting remand.
First, the court held that “the district court erred in determining the quantity of drugs
attributable to Stout. Because we are vacating Stout’s sentence under Booker, see infra, the
district court should revisit this issue upon resentencing and clarify the basis for its
calculations.” Stout, No. 05-5093, at 7-8. In the next paragraph, the court stated:
Finally, Stout argues that the district court committed plain error in
sentencing him in accordance with a mandatory application of the
guidelines, citing Booker. The government concedes that this court’s
precedent dictates that Stout’s sentence should be vacated and his case
remanded for resentencing, and we agree.
For the foregoing reasons, we affirm Stout’s convictions, vacate his
sentence, and remand this case to the district court for resentencing
consistent with this decision and the Supreme Court’s decision in Booker.
Id. at 8. In discussing the issue of relevant conduct, our previous order referred to the
remand under Booker. The cases from this circuit discussing whether a remand under
No. 08-6025 United States v. Stout Page 8
Booker constitutes a general or a limited remand have not come to a single conclusion.
Instead, they have varied based on the language used and the scope of the action taken by
the district court on resentencing. Compare United States v. Walls, 546 F.3d 728, 738 (6th
Cir. 2008), and United States v. Barnett, 398 F.3d 516, 530 (6th Cir. 2005), with United
States v. Abboud, 308 F. App’x 977, 982 (6th Cir. 2009), and United States v. Franco, 318
F. App’x 411, 413 (6th Cir. 2009). Here, because the only instructions given by the original
panel to the district court were that the resentencing be consistent with the order granting
remand and the Supreme Court’s opinion in Booker, the district court was not constrained
to the original record.
Neither the language of our previous order instructing the court to revisit the relevant
conduct issue at resentencing nor the language remanding the case for resentencing
consistent with Booker expresses any limitation on the district court’s authority to consider
additional evidence. The only language in the remand order concerning Booker states that
the court and both parties agree that Stout’s sentence “should be vacated and his sentence
remanded for resentencing,” and that resentencing should be consistent “with this decision
and the Supreme Court’s decision in Booker.” The language of the opinion stating that
“[b]ecause we are vacating Stout’s sentence under Booker, see infra, the district court should
revisit this issue upon resentencing” suggests that the panel contemplated this remand as
allowing the district court to address other issues. Rather than creating an additional grant
of authority to investigate relevant conduct, the court referred to the Booker remand. In
interpreting the scope of the mandate, “[t]he key is to consider the specific language used in
the context of the entire opinion or order.” Campbell, 168 F.3d at 267-68. Moreover, the
order’s instruction that the district court revisit the relevant conduct issue further tips the
balance in favor of the conclusion that the district court was allowed to consider new
evidence. As the court stated in Campbell, the number of issues requiring remand can affect
the scope of the remand: “[t]he delicate balancing that occurs in the sentencing process in
light of the complexity of the Sentencing Guidelines leads this court to believe that limited
remands are less likely to be desirable or effective when multiple issues require
consideration.” Id. at 268. Finally, that the district court addressed the issue of the scope
of the remand and interpreted the remand as allowing additional evidence further supports
this conclusion. “To impose a limited remand, an appellate court must sufficiently outline
No. 08-6025 United States v. Stout Page 9
the procedure the district court is to follow . . . . With sentencing issues, in light of the
general principle of de novo consideration at resentencing, this court should leave no doubt
in the district judge’s or parties’ minds as to the scope of the remand.” Id.In interpreting our previous order, Stout urges this court to read additional language
into the order requiring that the district court conduct resentencing on the original record.
The language used in the cases cited by Stout shows what is required for an appellate court
to issue a limited remand—language that is lacking in the present case. In United States v.
O’Dell, 320 F.3d 674, 678 (6th Cir. 2003), the court found a limited remand where this court
had previously issued an opinion that stated, “we VACATE the judgment of the sentence
entered by [the] district court and REMAND for re-sentencing without application of the
safety valve.” This court affirmed the district court’s decision not to consider an Apprendi
issue raised by the defendant at resentencing because the mandate was a limited one. Id. at
680-81. The court stated that the mandate “specifically instructed the court to resentence
without application of the safety valve.” Id. In contrast to the order in the present case
stating that the district court should revisit the relevant conduct issue and remanding the case
for resentencing in light of Booker, the remand in O’Dell clearly identified the action the
district court was supposed to take.
The cases Stout cites in arguing that the Government should not have been allowed
to present additional evidence to the district court show an even more explicit limitation on
the district court’s authority. In United States v. Gill, 348 F.3d 147, 156 (6th Cir. 2003), this
court held that the Government was required to distinguish between drugs a defendant held
for personal use and those the defendant held for resale in showing relevant conduct, and
further held that the Government was not entitled to present additional evidence of relevant
conduct on remand. The court stated that “because the lower court did not properly apply
the relevant Sentencing Guidelines provisions, the case must be remanded for resentencing
on the present record, since the government was entitled to only one opportunity to present
evidence on this issue.” Id. (citation and internal quotation marks omitted). Similarly, in
United States v. Goodman, 519 F.3d 310, 323 (6th Cir. 2008), the court held that where the
Government failed to establish that the defendant had used a firearm in connection with his
crime, resentencing should be conducted on the basis of the original record. The court
stated:
No. 08-6025 United States v. Stout Page 10
Because “[t]he government had the burden[] of persuasion, . . . we see no
reason why it should get a second bite at the apple. No special
circumstances justified, or even explained, the government’s failure to
sustain these burdens.” United States v. Leonzo, 50 F.3d 1086, 1088 (D.C.
Cir. 1995). Thus, “the case must be remanded for resentencing on the
present record, since ‘[t]he government was entitled to only one opportunity
to present evidence on this issue.’” United States v. Gill, 348 F.3d 147, 156
(6th Cir. 2003) (alteration in original) (quoting United States v. Wyss, 147
F.3d 631, 633 (7th Cir. 1998)).
Id. Additionally, in United States v. Baker, 559 F.3d 443, 455 n.10 (6th Cir. 2009), this
court remanded for resentencing on the original record to determine the amount of cocaine
for which the defendant was responsible because the Government had an incentive to do so
at the first hearing and its failure to do so was not justified by special circumstances. All of
these cases contain language unmistakably limiting the district court’s resentencing inquiry
to the original record. In the present case, no such language clearly appears in the opinion.
The language of the order taken in the context of the entire opinion, the fact that there was
more than one issue requiring remand, and the lack of instructions clearly limiting the scope
of the remand all point in favor of the original panel having authorized the district court to
consider additional evidence to determine relevant conduct.
Stout also argues, based largely on the line of cases described above, that the
Government should not have had a second opportunity to present additional evidence on an
issue for which it had the burden of production and persuasion at sentencing. Gill,
Goodman, and Baker do provide reasons for an appellate court remanding a case for
resentencing to limit the scope of the mandate to the original record in certain circumstances,
but those cases do not hold that it is error for a district court to consider additional evidence
when the appellate court does not limit the inquiry to the original record. Because the prior
panel of this court instructed the district court to revisit the relevant conduct issue but did not
include language clearly limiting the scope of the mandate to the original record, the district
court did not err in considering additional evidence of relevant conduct.
As Stout sees it, “the law-of-the-case doctrine precludes the Government from
relying upon Turner after the Sixth’s Circuit’s remand,” but this argument misses the mark.
The original presentence report stated that the statements of Jason Turner were too vague to
establish the quantity of drugs used to determine Stout’s relevant conduct, but the district
No. 08-6025 United States v. Stout Page 11
court did not address this finding at resentencing. It was on the basis of Turner’s additional
statements that the final PSR determined the relevant quantity of drugs and the district court
made its calculations. The cases on which Stout relies merely stand for the proposition that
“[t]he law-of-the-case doctrine bars challenges to a decision made at a previous stage of the
litigation which could have been challenged in a prior appeal, but were not.” United States
v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997). Because the district court was addressing the
clarity and reliability of Turner’s additional statements for the first time, it was not
addressing a decision made at a previous stage of the litigation which could have been
challenged in a prior appeal.
III.
The district court did not commit clear error in determining the amount of drugs
attributable to Stout because the statements of Jason Turner and Tammy Howell upon which
the district court relied were supported by sufficient indicia of reliability. Turner and
Howell’s statements were generally consistent with their testimony at trial, and parts of
Turner’s sentencing statement were corroborated by Stout’s own post-arrest statement.
Although the calculations in the PSR upon which the district court based its findings were
merely estimates and Turner and Stout were co-conspirators, these facts alone do not make
the statements unreliable.
The district court did not clearly err in determining that the statements of Turner and
Howell established Stout’s relevant conduct by a preponderance of the evidence. A district
court’s findings of fact at sentencing are subject to a preponderance-of-the-evidence
standard. United States v. Hunt, 487 F.3d 347, 350 (6th Cir. 2007). Section 6A1.3(a) of the
Sentencing Guidelines allows a sentencing court to “consider all relevant 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.”
This court has stated that this minimum-indicia-of-reliability standard imposes a “relatively
low hurdle.” United States v. Greene, 71 F.3d 232, 235 (6th Cir. 1995). Here, the district
court based its determination of Stout’s relevant conduct upon the out-of-court statements
of Turner and Howell, but these statements were supported by sufficient indicia of reliability
to meet the low reliability threshold. Both Turner and Howell testified at trial, and each
No. 08-6025 United States v. Stout Page 12
witness’s testimony at trial was generally consistent with the later sentencing statements.
Howell testified at trial that she had known Stout and Turner for about three or four years,
and that in the two years before the arrest she purchased both crack and powder cocaine from
them for personal use and for resale. She stated that during this two-year period she would
go to Stout’s house to purchase cocaine every day, that she usually purchased “two or three
eight balls a day maybe,” and that she would sometimes clean Stout and Turner’s house in
exchange for drugs. This is generally consistent with Howell’s sentencing statement, which
said that she “bought 3-8 balls a day on average,” and spent “approximately $500-$600 a day
at Stout’s house buying crack cocaine for about 1 year.” Additionally, Turner’s testimony
at trial corroborated much of the information in Howell’s sentencing statement. Turner
testified that he had known Howell for at least the entire year he sold drugs with Stout, that
Howell would buy drugs from Stout and Turner, and that Howell would sometimes clean
their house in exchange for drugs.
Turner’s sentencing statement was also consistent with his trial testimony. At trial,
Turner testified that he had been living with Stout prior to the time they were both arrested.
Turner also testified that once he began selling drugs, Stout took him to meet a supplier in
Memphis named Taurus, and that the pair would buy between a half an ounce to an ounce
of cocaine from Taurus “at least once a week.” This is consistent with Turner’s sentencing
statements, in which Turner stated that from February, 2003, until October, 2003, Turner and
Stout would travel to Memphis to meet a supplier named Taurus, that Turner “purchased an
average of two and one-half ounces of crack cocaine per month from Taurus during this time
period,” and that Stout also purchased an unknown quantity of powder cocaine from Taurus.
Moreover, Turner’s statements are also corroborated in part by the statement Stout gave to
police after Stout and Turner were arrested. Stout stated that he sold cocaine to 4 or 5 people
and that his supplier “goes by the name of Taurus and lives in Whitehaven in Memphis.”
Stout also stated that Taurus generally had between an ounce and an ounce and a half of
cocaine available.
The numbers given by Turner and Howell were estimates, but this court has stated
that a “[i]f there are no means to determine the exact amount of drugs, ‘an estimate will
suffice, but . . . a preponderance of the evidence must support the estimate.’” United States
v. Fenderson, No. 07-4482, 2009 WL 4251144, at *2 (6th Cir. Dec. 1, 2009) (quoting United
No. 08-6025 United States v. Stout Page 13
States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)). The district court used the
sentencing statements of Turner and Howell to estimate the amount of drugs sold by Stout
and Turner. These statements were generally consistent with the sworn statements the
witnesses gave at trial, and Stout himself admitted to having sold drugs to 4 or 5 people and
stated that he and Turner purchased drugs from the supplier Turner implicated. Moreover,
no evidence contradicted the information contained in the statements. Under these
circumstances, “approximations are completely appropriate.” United States v. Hernandez,
227 F.3d 686, 699 (6th Cir. 2000).
Stout argues that the district court erred in not giving Turner’s statement particular
scrutiny because Turner was a co-conspirator. While it is true that we have noted that such
statements may be suspect, United States v. Moncivais, 492 F.3d 652, 659 (6th Cir. 2007),
the cases from this circuit that Stout cites regarding statements by co-conspirators all held
that the hearsay statements of co-conspirators were sufficiently reliable. In United States v.
Hunt, 487 F.3d 347, 353 (6th Cir. 2007), the court determined that the district court did not
clearly err in basing a factual finding on the statements of co-conspirators when those
statements were given independently months apart and corroborated each other, and there
was corroborating evidence in the record and no contradictory evidence. Similarly, in
Moncivais, the court stated that the hearsay evidence presented by a co-conspirator was
“clearly above the minimum standard of reliability required for the evidence to be admissible
at sentencing,” when that evidence was detailed and both internally and externally
consistent. 492 F.3d at 659. The court also noted that the defendant pointed to nothing
about the co-conspirator’s statement that suggested it was unreliable, beyond the fact that
it was hearsay and that it was made by a co-conspirator. Similarly, in the present case, Stout
has not pointed to any factors that make Turner’s statement unreliable other than the fact that
1
Turner was a co-conspirator. The district court determined the statements of both Turner
and Howell to be credible, and credibility determinations are generally not subject to reversal
upon appellate review. United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999).
Finally, Stout argues that the district court’s rulings on the objections to the
presentence report failed to satisfy Federal Rule of Criminal Procedure 32(i)(3)(B), which
1
Stout points to the probation officer’s determination that Turner’s initial statement was too vague
to use to calculate relevant conduct, but this has no bearing on Turner’s later statements.
No. 08-6025 United States v. Stout Page 14
states that a sentencing court must rule on any disputed portion of the presentence report or
determine that such a ruling is unnecessary. While it would have been preferable for the
court to have expressly restated the calculations used to determine the amounts of cocaine
attributed to Stout for sentencing purposes, in light of Stout’s having controverted the
amounts, the court’s credibility determination regarding the witnesses and the court’s
statements on the record discussing the accuracy of the calculations in the PSR were
sufficient to meet the requirements of Rule 32.
For the foregoing reasons, Stout’s sentence is affirmed.