United States v. Hollins, Darius ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2659
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARIUS HOLLINS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 376—Harry D. Leinenweber, Judge.
____________
ARGUED APRIL 12, 2007—DECIDED AUGUST 17, 2007
____________
Before RIPPLE, EVANS and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Darius Hollins was convicted of
conspiracy and attempt to import cocaine. See 21 U.S.C.
§§ 952, 963. He initially was sentenced to a term of 188
months’ imprisonment. In a prior appeal, we vacated that
sentence and remanded for resentencing in light of United
States v. Booker, 543 U.S. 220 (2005). United States v. Chairs,
141 F. App’x 467, 468 (7th Cir. 2005). On remand, the
district court imposed a sentence of 151 months’ imprison-
ment. Mr. Hollins timely appeals his sentence. For the
reasons stated in this opinion, we affirm the judgment of
the district court.
2 No. 06-2659
I
BACKGROUND
A. The Facts Presented at Trial and Mr. Hollins’ Convic-
tion
Mr. Hollins was charged and convicted for his role in a
scheme to smuggle cocaine from Jamaica. The indictment
charged that he and others, including Carl Wilson, had
conspired with “Mark,” their drug contact in Jamaica, to
import cocaine into the United States. It also charged Mr.
Hollins with two specific attempts to import cocaine
into the United States and charged a third attempt involv-
ing only Wilson and Mark.
At Mr. Hollins’ trial, the Government produced sub-
stantial evidence of the two individual trips charged in the
indictment. The first of these trips (“the Reynolds trip”)
involved three women couriers, Sheron Reynolds, Tammie
Dixon and LaTonya McDonald, who testified at Mr.
Hollins’ trial. According to the women, Reynolds had been
recruited by Wilson, and she recruited Dixon and McDon-
ald. Reynolds and Dixon met with both Wilson and
Mr. Hollins before their trip, and the night before they left,
all three women were briefed by both men. Mr. Hollins
negotiated the women’s fees, and Wilson transported
them to the airport and provided them with significant
cash for the deal. Upon arriving in Jamaica, the women
were met at the airport by “Marcus,” the Jamaican con-
tact. Marcus took them to a hotel where they stayed for
several days. On the day before the women were sched-
uled to leave, Marcus arrived at the hotel and furnished
them with pouches that contained cocaine, as well as
lubricating jelly. He also instructed them on how to carry
the cocaine in body cavities. The following day, Marcus
No. 06-2659 3
returned and drove the women to the airport. Upon
arriving at O’Hare Airport, the women were stopped by
customs officials who discovered their illicit cargo. Mr.
Hollins stipulated that the total amount of cocaine recov-
ered from the women was 765 grams. On the basis of this
incident, the jury convicted Mr. Hollins of attempted
importation.
The Government also charged Mr. Hollins with an
attempt to import cocaine based on a trip taken by Carlos
Stewart and his girlfriend (“the Stewart trip”). According
to trial testimony, Mr. Hollins had recruited Stewart
through Stewart’s cousin, had paid Stewart’s expenses
and a fee and served as Stewart’s contact while Stewart
was in Jamaica. As the women involved in the Reynolds
trip had testified, Wilson drove the couriers to the airport
and provided the cash for the buy. Mark met them at the
airport in Jamaica and took them to a hotel. He returned
several days later with cocaine stashed in cans labeled as
a Jamaican food product and drove the couple to the
airport. Stewart was apprehended upon entering the
United States and, Mr. Hollins stipulated, 1702.3 grams
of cocaine were found in the cans. The jury acquitted
Mr. Hollins of the attempt charge based on this incident.
In addition to these specifically charged incidents, the
Government also presented, in support of its general
conspiracy charge, evidence at trial of an additional trip
(“the Clemons trip”). According to trial testimony, Mr.
Hollins asked Vincent Clemons to travel to Jamaica.
Clemons paid for his own flight, but Mr. Hollins both
arranged the flight and set Clemons up in a hotel once he
arrived. Once Clemons was in the Jamaica hotel, Mr.
Hollins contacted him and asked him to do Mr. Hollins a
“favor” by bringing something back to the United States.
4 No. 06-2659
He told him that a man named “Mark” would be in touch
shortly with directions. Mark later called Clemons and
arranged a meeting. At the meeting, Mark told Clemons
that he would be smuggling liquid cocaine into the United
States in champagne bottles that he could purchase from a
certain duty-free store in the Jamaican airport. Clemons
did as instructed and was not apprehended on his entry
to the United States. He turned over the bottles to Mr.
Hollins. Aside from the trip expenses and reimbursement
of the $45 cost of the “champagne,” Clemons testified that
he received no additional compensation. The Govern-
ment produced Clemons’ customs declaration from this
trip on which he had claimed six bottles of champagne.
Based on the above evidence presented at trial, the jury
convicted Mr. Hollins of the conspiracy charge.
B. The First Sentencing Proceeding
In preparation for Mr. Hollins’ initial sentencing hear-
ing, the Government prepared its version of the offense. It
maintained that, although the evidence at trial addressed
only three particular runs to Jamaica (the Reynolds trip,
the Stewart trip and the Clemons trip), the conspiracy
actually involved at least six trips and significantly
higher amounts of cocaine than the Government had
attempted to prove at trial.
In support of its position that Mr. Hollins should be
sentenced on the basis of transactions involving roughly
twelve kilos of cocaine, the Government attached numer-
No. 06-2659 5
ous documents to its sentencing memorandum.1 These
documents included the reports of interviews with five
individuals involved in the conspiracy, plea agreements
entered by several of Mr. Hollins’ co-defendants (Clemons,
Dixon, McDonald, Reynolds and Stewart), lab reports
documenting drug quantities and testimony from related
state court proceedings. One of these documents was a
record of the statement a woman named Annette Addison
had made to United States Customs officials in September
1998. According to that record, Addison stated that,
beginning in 1992 or 1993, she went on several trips out
of the country on behalf of the Hollins-Wilson conspiracy
and eventually became a recruiter who located, for a
finder’s fee, additional couriers for Mr. Hollins and Wilson.
She testified generally on the operations of the scheme
and described it in a manner consistent with the testimony
others had provided about the mechanics of travel and
about the dealings in Jamaica. She also specifically
stated that, in 1996, she had traveled with McKinley
Williams and Angela Butler and had attempted to return
with wine bottles containing liquid cocaine (“the Addison
II trip”). She stated that Wilson had made the arrangements
and had provided Addison with $65,000 to purchase the
cocaine. On arriving at the airport back in the United
States, Williams passed through customs without incident,
but Addison and Butler were stopped and the contents
of their wine bottles discovered.
1
The Government’s initial version of the offense, not a part of
the record on appeal, apparently concluded that Mr. Hollins
was responsible for seven kilos of cocaine. In its Corrections
to the Presentence Investigation Report, it revised the drug
quantity to nearly twelve kilos on the basis of newly acquired
lab reports.
6 No. 06-2659
At her own state court trial arising out of this trip,
Addison had testified in her own defense: She contended
that she had gone to Jamaica only on vacation and did
not know that the wine bottles she carried contained liquid
cocaine. The statement introduced at Mr. Hollins’ sen-
tencing, in which she admitted her involvement and
provided the relevant details, was obtained during a
meeting with customs officials subsequent to her convic-
tion.
The Government also introduced evidence of two
additional trips. The first, apparently taken in early 1995 by
two other women whom Addison had recruited (“the
Addison I trip”), involved a smuggling method similar
to that used in the Reynolds trip. The second apparently
involved Williams, who had traveled alone on a different
occasion and returned with liquid cocaine (“the Williams
trip”).
In addition to producing this supplemental drug quantity
evidence, the Government maintained that Mr. Hollins
should receive a four-level enhancement for his role as a
leader or organizer. See U.S.S.G. § 3B1.1(a). The presentence
report adopted the Government’s version of the offense,
including the drug quantity to be attributed to Mr. Hollins,
and recommended that the district court apply the leader
or organizer enhancement.
In his response, Mr. Hollins offered no direct objections
to the drug quantity calculations. Instead, he contended
that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), the
district court could not impose a sentence based on drug
quantities other than those proven to the jury beyond
a reasonable doubt at trial. Because the jury had found
him guilty of the attempt charge on the Reynolds trip
alone, Mr. Hollins believed the 765 grams of cocaine
No. 06-2659 7
involved in that incident placed a ceiling on his drug
quantity liability at sentencing.
The district court rejected Mr. Hollins’ contentions. It
found that, based on the evidence adduced at trial and the
Government’s additions at sentencing, Mr. Hollins’
relevant conduct encompassed offenses involving in excess
of five kilograms of cocaine. The court also applied a four-
level organizer or leader enhancement under U.S.S.G.
§ 3B1.1(a), and sentenced him to 188 months’ imprison-
ment, the low end of the applicable guidelines range.
Mr. Hollins appealed his sentence to this court. He
maintained his challenge, on Apprendi grounds, that the
district court’s fact-finding and resultant imposition of a
mandatory guidelines sentence was unconstitutional.
Because Mr. Hollins had preserved this objection and
because the Government could not demonstrate success-
fully that the district court’s error was harmless, this
court vacated the sentence and remanded for re-sentenc-
ing consistent with the dictates of Booker.
C. The Second Sentencing Proceeding
On remand, the district court determined correctly that
Mr. Hollins was entitled to a complete resentencing
procedure and that all challenges remained open to him.
Mr. Hollins, therefore, disputed the evidence of drug
quantities that had formed the basis of his prior sentence
and chose, in this second proceeding, to put the Govern-
ment to its proof.
In addition to the original documentary submissions,
discussed above, and the evidence produced at trial, the
Government, at the district court’s direction, called Addi-
8 No. 06-2659
son to testify at the resentencing hearing. Although Addi-
son apparently had testified at Wilson’s sentencing in 2003
in a manner consistent with her statements in the customs
interview,2 she proved to be a difficult witness in this
proceeding. She gave contradictory and confused testi-
mony about her role in the conspiracy. She said that
she did not recall her testimony at Wilson’s sentencing
hearing, and she testified that she had never discussed
importing cocaine with Mr. Hollins. However, when the
Government walked her through her prior testimony, she
admitted that she had worked with Mr. Hollins to smuggle
cocaine and gave specific details of several trips and
described her role in recruiting and importing. On cross-
examination, she admitted to lying under oath at her own
trial. She stated again that she had not worked as a re-
cruiter for Mr. Hollins and that she was unsure whether
she had made the statements recorded in the customs
report. Near the conclusion of her muddled testimony, the
court itself pressed her about her truthfulness in this
proceeding and at Wilson’s sentencing. She testified that,
although she did not remember details of the prior pro-
ceedings, she remembered that she did not lie.
Following her testimony, the district court heard argu-
ment from the parties on the issue of drug quantity and the
leadership enhancement. The Government contended that
Mr. Hollins was responsible for between 5 and 15 kilo-
grams of cocaine. Its calculation was based on: (1) a
2
The transcript of Wilson’s sentencing hearing is not a part of
the record on appeal in this case. However, the Government
examined Addison at length regarding her testimony in that
proceeding when she appeared at Mr. Hollins’ sentencing
hearing.
No. 06-2659 9
stipulated amount of 765 grams from the Reynolds trip, of
which Mr. Hollins was convicted; (2) a stipulated amount
of 1702 grams from the Stewart trip, of which Mr. Hollins
was acquitted; (3) 4161 grams from the Addison II trip,
based on the forensic amounts of 1387 grams from the
bottles of Addison and Butler and attributing an identical
amount to Williams who passed through customs unde-
tected; (4) 510 grams from the Addison I trip, the quantity
having been determined by the average quantity of the
pouches used in the three-person Reynolds trip; and
(5) 4161 grams of liquid cocaine from the champagne
bottles smuggled during the Clemons trip, based on the
forensic evidence of quantity from the Addison II trip,
which had used wine bottles.3 Mr. Hollins objected to the
Government’s calculation, basing his arguments again
on his interpretation of the Supreme Court’s holding in
Booker and the constitutionality of sentencing a defendant
based on facts not proven to the jury. He also contended
that the evidence was simply insufficient to hold him
criminally responsible for certain of the amounts.
The district court ruled that it would consider the 765
grams from the Reynolds trip, 2964 grams from the por-
tions of the Addison II trip that were substantiated by
forensic evidence and an identical amount from the
Clemons trip. The court specifically ruled that it would
not consider the quantities attributed to the acquitted
conduct of the Stewart trip, the liquid cocaine that Williams
3
For reasons undisclosed by the record, during oral argument
at the second sentencing proceeding, the Government did not
ask the court to attribute any drug quantity to Mr. Hollins
from the Williams trip, although in the prior proceeding it
had contended that the Williams trip involved 693 grams.
10 No. 06-2659
had passed through customs without detection on the
Addison II trip or any of the amounts the Government
claimed from the Addison I trip. See R.365-4 at 106-07. The
court therefore found that Mr. Hollins was responsible for
approximately six and a half kilos of cocaine, resulting
in a base offense level of 32.
The parties also argued about Mr. Hollins’ role in the
offense enhancement. The Government maintained its
position that the evidence showed a wide-ranging conspir-
acy with Mr. Hollins and Wilson at the helm, sufficient
to support a four-level leadership enhancement. Mr.
Hollins contended that his role was substantially
smaller than Wilson’s and that, because Wilson had
received only a three-level enhancement, Mr. Hollins’
enhancement, if any, certainly should be less than three
levels. The district court concluded that, “in fairness,” Mr.
Hollins enhancement should be reduced to match Wilson’s.
R.365-4 at 111. With a total offense level thus determined
to be 35 and a criminal history category of I, the result-
ing guidelines range was 168 to 210 months. The Gov-
ernment advocated a low-end sentence of 168 months. The
court considered the seriousness of the offense and the
harm done to the lives of the couriers, many of whom
were young women with children. The court, noting that
Wilson had received 151 months after pleading guilty,
expressed its desire to avoid unwarranted sentencing
disparities between the co-defendants. See 18 U.S.C.
§ 3553(a)(6). Accordingly, it imposed a below-guidelines
sentence of 151 months’ imprisonment for Mr. Hollins as
well.
Mr. Hollins once again timely appeals his sentence.
No. 06-2659 11
II
DISCUSSION
Mr. Hollins raises both factual and legal challenges to his
sentence. He contends that the district court’s drug quan-
tity and leadership role findings were clearly erroneous.
He also poses a variety of constitutional challenges to a
sentence based in significant part on matters not presented
to the jury.
Post-Booker, we generally review a sentence for reason-
ableness in light of the statutory sentencing factors in
18 U.S.C. § 3553(a). United States v. Acosta, 474 F.3d 999,
1001 (7th Cir. 2007). However, we review de novo legal
questions, including the correct application of the advisory
guidelines, United States v. Ngatia, 477 F.3d 496, 501 (7th
Cir. 2007), and due process challenges to sentencing, United
States v. Farris, 448 F.3d 965, 967-68 (7th Cir. 2006), cert.
denied, 75 U.S.L.W. 3707 (U.S. June 29, 2007) (No. 06-7363).
We review findings of fact made by the district court,
including the drug quantity and leadership role, for
clear error. Ngatia, 477 F.3d at 500; United States v. Melendez,
467 F.3d 606, 608-09 (7th Cir. 2006), cert. denied, 75 U.S.L.W.
3708 (U.S. June 29, 2007) (No. 06-11174); United States v.
Olson, 450 F.3d 655, 685 (7th Cir. 2006). Clear error will be
found when, on review of the entire evidence, we are left
with the definite and firm conviction that a mistake has
been made. United States v. Hankton, 432 F.3d 779, 789 (7th
Cir. 2005). These standards apply to all of Mr. Hollins’
challenges on appeal; beyond the legal and factual errors
he claims guided the district court’s calculation, he does
not contend that his sentence was otherwise unreasonable.
12 No. 06-2659
A. Drug Quantities
In cases involving drug conspiracies, a sentencing
court must consider as relevant conduct all “types and
quantities of drugs that were part of the same course of
conduct or common scheme or plan,” whether or not the
defendant was “charged with or convicted of” these other
acts. United States v. McEntire, 153 F.3d 424, 435 (7th Cir.
1998) (internal quotation marks and citations omitted); see
also U.S.S.G. § 3B1.1(a)(1). We have recognized that, in
light of the lower burden of proof demanded of the Gov-
ernment at sentencing, combined with the fact that the
Federal Rules of Evidence do not apply in sentencing
proceedings, the aggregation rule gives the Government
“tremendous leverage in drug cases.” McEntire, 153 F.3d at
435. A defendant in a drug conspiracy is liable for all
quantities of drugs with which he was involved directly
and any amounts attributable to his co-conspirators if
those amounts were reasonably foreseeable to him. United
States v. Wilson, 481 F.3d 475, 483 (7th Cir. 2007); Olson,
450 F.3d at 685; United States v. McLee, 436 F.3d 751, 765
(7th Cir. 2006); see also U.S.S.G. § 1B1.3(a)(1) (providing
that, “in the case of jointly undertaken criminal activity . . .
whether or not charged as a conspiracy” a defendant’s
base offense level should be calculated on the basis of “all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity” in
addition to those acts in which he was directly involved).
1. The Addison II Trip
Mr. Hollins claims that the district court erred in holding
him criminally responsible for the amounts involved in
the Addison II trip. The district court counted only those
No. 06-2659 13
drug quantities attributed to Addison and Butler from this
trip, both of whom were caught and whose bottles were
tested. The only question, therefore, is whether these
amounts were part of the scheme and were reasonably
foreseeable to Mr. Hollins.
Mr. Hollins submits that the court held him responsible
without making the requisite finding that the cocaine
involved in the Addison II trip was reasonably foresee-
able to him. However, it is plain from the record that the
framework of the entire drug quantity inquiry before the
court was foreseeability, and, therefore, the court’s ultimate
conclusion that Mr. Hollins should be charged with the
amounts involved in the Addison II trip encompassed a
determination that these quantities were foreseeable. See
R.365-4 at 94 (stating that the parties should address “the
question [of] what was foreseeable to [Mr. Hollins] by a
preponderance of the evidence, what quantity of cocaine
was foreseeable to him which relates to the conspiracy”).
Mr. Hollins further claims that, other than certain of
Addison’s contradictory statements, the evidence does
not support a finding that Mr. Hollins had any involve-
ment in this particular transaction. Even if this were the
case, Mr. Hollins still could be liable for this amount. The
Government’s burden in attributing drug quantities to a
particular defendant does not require that it show that
the defendant is involved in or even have direct knowledge
of a particular transaction; “[r]easonable foreseeability
refers to the scope of the agreement that [a defendant]
entered into when he joined the conspiracy, not merely to
the drugs he may have known about.” United States v.
Flores, 5 F.3d 1070, 1083 (7th Cir. 1993). This question about
the scope of Mr. Hollins’ agreement is precisely the ques-
tion that the district court answered when it stated, “[t]he
14 No. 06-2659
evidence is clear that Mr. Wilson and Mr. Hollins ran this
thing . . . . The jury found that [Mr. Hollins] conspired
with Mr. Wilson.” R.365-4 at 103. Having credited Addi-
son’s statements and testimony to the extent that they
establish “that she did have a relationship with Mr. Hollins
and also with this drug conspiracy,” id. at 106, the district
court noted that “there is certainly enough evidence” to
conclude that the amounts brought in by Addison were
“part of this conspiracy,” id. at 103. These comments
indicate that the court was convinced of Mr. Hollins’
central role in the conspiracy and of his continuing knowl-
edge of Addison’s role in it when the court concluded
that Mr. Hollins reasonably foresaw the drug quantities
on the Addison II trip. In short, these facts were relevant
considerations in assessing the scope of Mr. Hollins’
agreement and, therefore, the quantities of cocaine rea-
sonably foreseeable to him in the ongoing conspiracy.
We also conclude that the district court did not err in
crediting certain portions of Addison’s testimony and
discrediting certain others without an explicit statement of
reasons made on the record. Mr. Hollins relies on United
States v. Beler, 20 F.3d 1428 (7th Cir. 1994), in support of his
argument that the district court was required to provide
such an explanation. In Beler, we overturned a sentence
in which the primary evidence of drug quantity was a
statement by a witness that was at odds with the witness’
own earlier quantity estimate. Id. at 1433-35. We faulted
the district court for its conclusory determination relying
on the witness’ higher estimate without any reference to
the fact that the witness also had stated that the transac-
tion at issue involved a significantly lower amount. Beler
is inapposite on its facts. Unlike the court in Beler, the
district court here did not rely on one of two directly
No. 06-2659 15
contrary factual statements. It sifted through the testimony
of a difficult witness and distilled the barest of facts
relating to her involvement in the conspiracy. This kind of
evidence sifting is certainly not beyond the competence or
authority of a sentencing court. It is at the heart of the
district court’s function, and we shall not second guess
the determinations made by a judicial officer who has
observed the testimony and made careful judgments
about the witness’ veracity.
2. The Clemons Trip
With regard to the Clemons trip, Mr. Hollins contends
simply that there was insufficient evidence for the district
court to conclude that the bottles carried liquid cocaine or
that they carried the amount attributed to Mr. Hollins at
sentencing (more than 2900 grams).
It is true that the testimony at trial was that the Clemons
trip had certain logistical differences from some of the
other trips made in furtherance of the conspiracy: Clemons
paid his own transportation and apparently did not know
before arriving in Jamaica the purpose of his trip. Clemons
also did not pay Mark, the Jamaican contact, money sent by
Mr. Hollins or Wilson in exchange for cocaine as some
other witnesses testified they had. Mr. Hollins claims that
these differences demonstrate that the Clemons trip was
only a test run for future use of wine bottles that actually
would contain liquid cocaine. In this case, he argues, the
bottles were filled only with champagne.
Mr. Hollins’ characterization may be a plausible account
of the Clemons trip, but it is not one required by the record.
At trial, Clemons testified that Mark informed him that
the bottles did contain cocaine and that Clemons pur-
16 No. 06-2659
chased, carried and handed over the bottles to Mr. Hollins
believing they contained cocaine. In addition to Clemons’
testimony, the district court also had evidence that other
individuals caught doing substantially the same thing
(albeit with different particulars) were indeed found to have
been carrying liquid cocaine. That Mr. Hollins presents
an alternative view of the evidence does not demonstrate
that the district court’s finding was clear error. See United
States v. Marty, 450 F.3d 687, 690-91 (7th Cir. 2006). “Where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly er-
roneous.” Anderson v. City of Bessemer, 470 U.S. 564, 574
(1985).
As to the quantity of cocaine the Clemons bottles con-
tained, although evidence of drug quantity must be more
than speculative, “nebulous eyeballing,” the sentencing
guidelines permit some amount of reasoned “speculation
and reasonable estimation” by a sentencing court. United
States v. Jarrett, 133 F.3d 519, 530 (7th Cir. 1998) (citing
U.S.S.G. § 2D1.1); see U.S.S.G. § 2D1.1, Application Note 12
(“Where there is no drug seizure or the amount seized
does not reflect the scale of the offense, the court shall
approximate the quantity of the controlled substance. In
making this determination, the court may consider, for
example, . . . similar transactions in controlled substances
by the defendant . . . .”); Beler, 20 F.3d at 1433 (noting
the necessity of approximation).
In this case, the district court relied on the drug quanti-
ties it had attributed to Mr. Hollins from the Addison II
trip. This was not baseless speculation or a number drawn
“out of thin air,” Jarrett, 133 F.3d at 530; neither was it
based on an impermissible conclusion that the quantity of
drugs known to have been used in a particular run was
No. 06-2659 17
standard for all runs, cf. United States v. Johnson, 185 F.3d
765, 768-69 (7th Cir. 1999) (discussing the problems with
applying an average-quantity approach). Instead, the
district court looked to the Addison II trip, which was the
most closely analogous trip, in which the same specific
smuggling method had been used. The court concluded
that a per-bottle quantity of liquid cocaine was likely
consistent and should be applied to the Clemons bottles as
well as to the Addison II bottles. The determination that a
per-bottle amount was standard was not baseless, as
each of the wine bottles tested in the Addison II trip
contained the same amount of liquid cocaine. Moreover,
the court’s estimate on the Clemons trip was generous to
Mr. Hollins based on the facts of the two trips: Although
the court believed the wine bottles used in the Addison II
trip and the champagne bottles used in the Clemons trip
carried the same volume of liquid cocaine, Clemons
testified that he carried six bottles rather than the four
bottles on which the Addison II trip quantity ultimately
was calculated. The court nevertheless attributed an
identical total amount of cocaine—based on the four bottle
quantity from the Addison II trip—rather than using a per-
bottle estimate based on six bottles in the Clemons trip.
This method of calculation is the kind of reasonable
approximation that a district court is directed to under-
take under the guidelines.
B. The Role in the Offense Enhancement
Mr. Hollins also claims that the district court erred in
applying an enhancement for acting as a manager or
supervisor under U.S.S.G. § 3B1.1(b). At his initial hearing,
Mr. Hollins was given a four-point enhancement as a
leader or organizer under § 3B1.1(a). The district court
18 No. 06-2659
reduced the number at resentencing to create parity
with Wilson. Mr. Hollins now objects that the factual
finding that he was a manager is clearly erroneous.
In determining whether a role in the offense enhance-
ment is appropriate, sentencing courts should examine the
relationship of the defendant to the criminal enterprise.
Relevant factors in this inquiry include: “(1) exercise of
decision-making authority; (2) participation in committing
the offense; (3) recruitment of accomplices; (4) degree of
participation in planning or organizing the criminal
activity; (5) degree of control or authority exercised over
others involved in the criminal activity; and (6) the nature
and scope of the illegal activity.” United States v. Falcon,
347 F.3d 1000, 1004 (7th Cir. 2003); see also § 3B1.1, cmt. 4.
The district court made findings on the record that
Mr. Hollins, along with Wilson, clearly ran the con-
spiracy, and the record identified far more than five
people involved in the importation of cocaine for Mr.
Hollins and Wilson. The court also found that Mr. Hollins
was responsible for recruiting multiple couriers and
arranging details of their runs. While the couriers came and
went, Mr. Hollins remained in a role facilitating numerous
trips to import substantial amounts of cocaine. Mr. Hollins’
main objection was that he was less responsible, and,
therefore, less accountable, than Wilson. Even if that
contention is supported by the record, it does not under-
mine the facts found by the trial court that Mr. Hollins
exercised a management role.4 We have stated that the
4
The Application Notes themselves make clear that more than
one individual simultaneously may wield sufficient authority
in a criminal enterprise to qualify for a particular role in the
(continued...)
No. 06-2659 19
district court must make factual findings on the record
that at least five members were in the conspiracy and
determine whether he had control over four of them. See
United States v. Zaragoza, 123 F.3d 472, 482 (7th Cir. 1997).5
We have further stated, however, that failure to make
such findings does not require remand “so long as the
enhancement is adequately supported by the record.” Id.
at 483. The record in this case adequately supports the
enhancement given.
C. Constitutional Claims
Finally, Mr. Hollins presents a variety of constitutional
challenges to his sentencing, all of which we previously
have considered and rejected. Judicial fact-finding by a
preponderance of the evidence is still a legitimate basis for
arriving at the applicable guidelines range and does not
violate the Constitution so long as the guidelines are
advisory and the ultimate sentencing decision is based on
4
(...continued)
offense enhancement. U.S.S.G. § 3B1.1, Application Note 4
(“There can, of course, be more than one person who qualifies
as a leader or organizer of a criminal association or conspir-
acy.”).
5
In light of changes to the Application Notes accompanying
§ 3B1.1, we have retreated from the language in United States
v. Zaragoza, 123 F.3d 472, 482 (7th Cir. 1997), which stated that
the defendant must have exercised control over at least four
participants in order to qualify for a role in the offense en-
hancement. United States v. Blaylock, 413 F.3d 616, 620-21 (7th Cir.
2005); see also U.S.S.G. § 3B1.1, cmt.2 (“To qualify for an adjust-
ment under this section, the defendant must have been the
organizer, leader, manager, or supervisor of one or more other
participants.” (emphasis added)).
20 No. 06-2659
the § 3553(a) factors. See, e.g., United States v. Hale, 448 F.3d
971, 988 (7th Cir. 2006), cert. denied, 75 U.S.L.W. 3354 (U.S.
Jan. 8, 2007) (No. 06-8091), (“[N]o constitutional violation
resulted from the application of upward adjustments based
on facts found by the district court by a preponderance
of the evidence. Judges may continue to make findings
based on a preponderance of the evidence, provided that
they do not treat the Sentencing Guidelines as ‘laws’ with
binding effect.” (internal citation and quotation marks
omitted)).
Mr. Hollins further contends that, under the Booker
remedial regime, any sentencing exposure above that
which could be imposed on the basis of jury-found facts
violates ex post facto principles, and, therefore, due
process. We previously have rejected this argument, and
we confirm that result in this case. See, e.g., Farris, 448
F.3d at 968 (noting that a defendant cannot demand, on
the basis of due process, “a sentence that comports with
the Sixth Amendment requirements of Booker, but . . .
avoid[] the possibility of a higher sentence under the
remedial holding of Booker” (internal quotation marks
and citation omitted)); United States v. Jamison, 416 F.3d
538, 539 (7th Cir. 2005) (same).
Conclusion
The district court’s findings as to drug quantity and
leadership role were not clearly erroneous. Mr. Hollins’
sentence was calculated properly. We also reject the
challenges Mr. Hollins poses to the remedial holding of
Booker. Accordingly, the judgment of the district court
imposing a sentence of 151 months’ imprisonment is
affirmed.
AFFIRMED
No. 06-2659 21
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-17-07