United States v. Garrett.    No. 13-1182.

 Background. Dwayne Garrett was found guilty of possessing with intent to distribute 50 or more grams of crack cocaine and sentenced to 190 months in prison. He appeals both his conviction and sentence.

Garrett was indicted, along with more than two dozen co-defendants, and charged with possession with intent to distribute 50 or more grams of crack cocaine and using a cell phone in furtherance of that crime. For the conviction of possession with intent to distribute crack cocaine, the Presentence Investigation Report ("PSR") calculated Garrett's base offense level at 34 because "the amount of cocaine base [Garrett was] known to have obtained and possessed for distribution was at least 840 grams, but less than 2.8 kilograms." This conclusion rested solely on Agent Labno's statement, contested by Garrett, that Garrett confessed to purchasing at least two kilograms of crack cocaine from Hicks over the course of their year-long buyerseller relationship.

Garrett asserts that the district court erred in holding him responsible for at least 840 grams but less than 2.8 kilograms of cocaine base without first making a drug quantity finding. We conduct clear error review of the district court's factual findings regarding the drug quantity involved in Garrett's offense. United States v. Krasinski, 545 F.3d 546, 551 (7th Cir.2008). As part of Gall's two-step process, the trial court must first correctly calculate the defendant's Guidelines range. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). An essential part of that calculation is determining the offender's base offense level. United States v. Claybrooks, 729 F.3d 699, 706 (7th Cir.2013). Since for drug crimes, "a defendant's base offense level is largely a function of the amount of drugs involved in his offense," sentencing courts are required to explicitly state their drug-quantity findings in arriving at the appropriate sentence. Id. Otherwise, the reviewing court is left without any basis to determine whether the sentencing court properly executed its duty under the first prong of Gall's two-pronged mandate.

          Our review is stymied because the court did not make a clear finding as to the quantity of drugs it found attributable to Garrett. It is undisputed that the evidence at trial concerned approximately 241 grams of cocaine. Adopting this quantity would have resulted in a base offense level of 30. But the sentencing court can increase a defendant's sentence based on other relevant conduct not proven at trial, such as the amount of drugs attributable to defendant, so long as that conduct is proven by a preponderance of the evidence. See United States v. Johnson, 342 F.3d 731, 734 (7th Cir.2003). The court is not limited by the rules of evidence at sentencing, but the evidence considered in determining the drug quantity attributable to the defendant must carry indicia of reliability. United States v. Westmoreland, 240 F.3d 618, 630 (7th Cir.2001).

The court, at sentencing, stated its belief that 36 was the appropriate offense level. But it never gave any indication of the drug quantity for which it found Garrett personally responsible.

Had the district court indicated that it found the PSR reliable, stated why, and adopted the PSR's finding that Garrett distributed at least two kilograms of crack cocaine, we would have a different record before us. "We have long held that a district court may rely on factual information contained in a PSR so long as it bears sufficient indicia of reliability." United States v. Davis, 682 F.3d 596, 613 (7th Cir.2012). The court would have been within its discretion to conclude that the PSR's findings, based on Agent Labno's testimony that Garrett admitted possessing two kilograms of cocaine, were more reliable than Garrett's unsupported word that he did not.

Garrett's denial alone would not necessarily render the PSR's factual finding unreliable.

It is true that a sentencing court may, based on the preponderance of the evidence, reasonably estimate the drug quantity that applies to a defendant's offense. Krasinski, 545 F.3d at 551-52. But this does not mean that the court should leave the drug quantity undetermined. United States v. Palmer, 248 F.3d 569, 571 (7th Cir.2001). Instead, the court must explicitly state its drug quantity finding, id., and provide "some description of the reliable evidence used to support the finding and the method used to calculate it," Claybrooks, 729 F.3d at 707.

The district court erred because it neither explicitly stated the drug quantity it found attributable to Garrett nor provided any indication of the evidence it found reliable.

And we do not find the court's error to be harmless. See United States v. Abbas, 560 F.3d 660, 667 (7th Cir.2009) (finding that proving harmless error requires the government to show "that the Guidelines error did not affect the district court's selection of the sentence imposed").

Therefore, we vacate Garrett's sentence and remand the case for resentencing.

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com  or call 312-913-1111                  

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