Second Circuit vacates a sentence as procedurally unreasonable because the district court’s “calculation of drug quantity” wasn’t supported by a preponderance of the evidence: United States v. Burks, No. 18-1361-cr, __ F. App’x__, 2019 WL 4049857 (Aug. 28, 2019).
In a summary order, the Second Circuit vacates and remands “for sentencing” because the evidence didn’t support the district court’s drug-quantity calculation. United States v. Burks, 2019 WL 4049857 at *3.
Local police executed a search warrant at Burks apartment and recovered “1.21 grams of cocaine residue from various narcotics packaging and processing materials at the apartment and an adjoining unit.” Id. at *1. “In the Plea Agreement,” Burks admitted that, before the police search, he had “distributed cocaine in 1//2 ounce and one ounce amounts.” Id. And the drug quantity that “could be readily proven by the government” “was less than 50 grams,” resulting in a Sentencing Guidelines range of 15-21 months’ imprisonment.
The PSR calculated a drug quantity higher than 50 grams, however, using the amount of cash found in the apartment to arrive at an estimated drug quantity of 312 grams. The resulting Guidelines range was 41-51 months’ imprisonment, to which Burks objected. The district court then conducted an evidentiary hearing at which a police officer who had been involved in the search testified. The court found a drug quantity (of between 500 grams to 2 kilograms) that resulted in a range of 63 to 78 months. Id. at *2.
To support its “approximation” of the drug quantity, “courts must rely on evidence that ‘points specifically to a drug quantity for which the defendant is responsible.’” Id. at *2 (quoting United States v. Shonubi, 103 F.3d 1085, 1090 (2d Cir. 1997)). “While approximations need not be exact, the court’s underlying factual findings cannot be predicated on surmise and conjecture.” Id. at *2 (citation and internal quotation marks omitted). The evidence may be circumstantial, but “it must be specific to the defendant and provide information regarding the quantity of illicit … goods.” Id. at *2 (alteration in original: citation omitted).
Here, “the court based its approximation, in part, on Burks’s purported admission to selling cocaine in ‘ounce and a half quantities’ [i.e., 1 1/2 ounce quantities]. However, the Plea Agreement reflects Burks’s admission to selling cocaine” a smaller quantities of “only ‘1//2 ounce and one ounce amounts.’” Id. at *2.
The district court also extrapolated a certain frequency of weekly drug sales that it used in its drug calculation. But the only evidence from which to infer the frequency of drug sales was “a statement in the search warrant application from a police confidential source” that Burks “sold cocaine on ‘multiple occasions’ over six months.’” Id. at *3. This evidence, the Circuit concluded, was not sufficient “to extrapolate any particular frequency of sales, let alone weekly sales.” Id. at *3. The Circuit did indicate, however, in a footnote, that the PSR’s use of the amount of currency seized to arrive at drug quantity would be permissible, if a preponderance of the evidence showed that the currency was the proceeds of drug trafficking.