7 F.4th 565
7th Cir.2021Background
- DEA investigation used a confidential informant to conduct four controlled buys (March–April 2017) at an apartment Rollerson controlled; buys allegedly involved heroin and fentanyl and supported search warrants.
- On April 27, 2017 police stopped Rollerson, recovered a firearm and marijuana, and obtained admissions and a key to the stash apartment; searches recovered large quantities of fentanyl, heroin, cocaine, tramadol, cash, scales, and firearms.
- Indictment charged possession with intent to distribute fentanyl, heroin, cocaine, tramadol, and felon-in-possession counts; jury convicted on heroin and firearms counts, acquitted on fentanyl, cocaine, and tramadol counts.
- PSR aggregated drug quantities from the convicted heroin offense, the acquitted drugs, and the four uncharged controlled buys to compute a high converted-drug-weight and a higher Guidelines range.
- At sentencing Rollerson objected that the controlled-buys were unsupported and that the uncharged and acquitted drugs were not relevant conduct; the district court relied on a sworn DEA affidavit in the criminal complaint and the PSR, found the information reliable by a preponderance and relevant, and imposed the enhanced sentence.
- Seventh Circuit affirmed: (1) the DEA affidavit provided the ‘‘modicum of reliability’’ required to count the controlled buys in the Guidelines calculation absent contrary evidence; and (2) the uncharged and acquitted drugs were relevant conduct given similarity, location, and temporal proximity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reliability of uncharged controlled buys used in PSR | PSR’s amounts rest on unsupported summaries; prosecution failed to prove buys with sufficiently reliable evidence by a preponderance | Government relied on DEA affidavit in criminal complaint + PSR; defense did not present contrary evidence or the search-warrant affidavit at sentencing | AFFIRMED — DEA officer’s sworn affidavit supplied a modicum of reliability; absent rebuttal, preponderance met |
| Whether uncharged buys and acquitted drugs are "relevant conduct" under U.S.S.G. §1B1.3 | These other transactions are distinct and not part of the same course/scheme as the heroin conviction | The buys and stash-house seizures occurred at same location, involved same or related drugs, and were temporally proximate — showing similarity, regularity, temporal proximity | AFFIRMED — district court did not clearly err; conduct was part of same course/scheme and thus relevant conduct |
Key Cases Cited
- United States v. Helding, 948 F.3d 864 (7th Cir. 2020) (explains low threshold for reliability and need for more than a naked allegation)
- United States v. Tucker, 404 U.S. 443 (1972) (due process requires sentencing on accurate information)
- Gall v. United States, 552 U.S. 38 (2007) (standard for procedural error and abuse of discretion review at sentencing)
- United States v. Ortiz, 431 F.3d 1035 (7th Cir. 2005) (relevant-conduct requires similarity, regularity, temporal proximity)
- United States v. Draheim, 958 F.3d 651 (7th Cir. 2020) (distinguishes when uncharged conduct differs markedly in scale or location)
- United States v. McGowan, 478 F.3d 800 (7th Cir. 2007) (frames ‘‘similarity, regularity, and temporal proximity’’ test)
- United States v. Watts, 519 U.S. 148 (1997) (acquitted conduct may be considered at sentencing if proven by preponderance)
- United States v. Marks, 864 F.3d 575 (7th Cir. 2017) (PSR asserting only naked charge is insufficient when disputed)
- United States v. Smith, 280 F.3d 807 (7th Cir. 2002) (upholding crediting of informant-controlled-buy evidence supporting enhancements)